id
stringlengths 36
36
| title
stringlengths 1
243k
| citation
stringlengths 3
718
| docket_number
stringlengths 1
304
⌀ | state
stringclasses 24
values | issuer
stringclasses 24
values | document
stringlengths 0
1.94M
| date
stringlengths 3
18
|
|---|---|---|---|---|---|---|---|
8a5f965d-6d15-4a75-a8a6-7e4605d1645b | McGowen v. Smith | 87 So. 2d 429 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 429 (1956)
William H. McGOWEN, Jr.
v.
Eddie Winfred SMITH.
6 Div. 919.
Supreme Court of Alabama.
May 10, 1956.
Geo. I. Case, Jr., Birmingham, for appellant.
Fred Blanton, Birmingham, for appellee.
SIMPSON, Justice.
The appellant filed in the probate court a petition for the adoption and change of name of the infant daughter of his wife (appellee's former wife). Appellee, the natural father of the infant, although not named in the petition for adoption nor made a party thereto by the appellant, intervened and filed a motion to dismiss the petition. The probate court dismissed this petition for adoption and denied appellant's motion to set aside the decree of dismissal. This appeal followed.
Appellee and his former wife were married on October 18, 1947. From this union a daughter was born on February 28, 1951. Thereafter, on July 8, 1953, a decree of divorce was entered. By the terms of the decree, the mother (now wife of appellant) was granted the full and complete custody thereof. The right of visitation with the infant at all reasonable times and places, including the right to have the infant with him overnight at reasonable times was granted to the natural father (appellee). The duty of payment of $40 per month for the support and maintenance of the infant was placed upon the natural father. Appellant and the mother of the child, formerly appellee's wife, were married November 4, 1953.
*430 Title 27, § 6, Code of Alabama, 1940, as amended, provides:
Section 3, Title 27 provides:
Appellant's wife, the natural mother, consented to the adoption of the minor. Appellee, in the motion to dismiss the petition for adoption, averred that he did not consent to the adoption of his daughter; that he had never abandoned his daughter; that he is not insane or otherwise incapacitated from giving consent; and that the child had not been placed under the legal guardianship of the State Department of Public Welfare nor an agent thereof. The appellee's petition showed that he had complied with the provisions of the divorce decree.
The question for our determination is whether under the statutory provision that no adoption shall be permitted without the consent of the natural parent or parents having custody of the child, the consent of the natural father is necessary where the mother has procured a divorce from such father and she has been awarded custody of such child with the father being granted the right of visitation at all reasonable times including the right to have said child with him overnight.
See also In re Jackson, 1934, 55 Nev. 174, 28 P.2d 125, 91 A.L.R. 1381; In re Lease, 1918, 99 Wash. 413, 169 P. 816; Onsrud v. Lehman, 1952, 56 N.M. 289, 243 P.2d 600; Stone v. Dickerson, Tex.Civ.App., 1940, 138 S.W.2d 200; Smith v. Smith, 1947, 67 Idaho 349, 180 P.2d 853; In re Force, 1920, 113 Wash. 151, 193 P. 698; In re Adoption of Strauser, 1948, 65 Wyo. 98, 196 P.2d 862; Woodson v. Lee, 1953, 221 Ark. 517, 254 S.W.2d 326; 1 Am.Jur., Adoption of Children, Secs. 9, 36, 40, 43; 1 C.J., Adoption of Children, § 57; 2 C.J.S., Adoption of Children, §§ 18, 21.
Where the custody of the infant was granted to one parent with the right of visitation granted to the other, the consent of the latter was held to be necessary for adoption in In re Lease, supra. The Washington Court interpreting a statutory provision similar to the one at bar (consent of both is not required but may be given by the parent having the care, custody and control of such child) held that to enable one parent to effectually consent to its adoption by another, such custody and control must be of such an absolute and unconditional nature that the other parent's right in the child is extinguished. See also In re Force, supra.
A statement of the general rule is also found in 2 C.J.S., Adoption of Children, § 21(2), p. 390:
In Stone v. Dickerson, supra, the mother was, under the terms of the divorce decree, given custody of the child with the right of visitation in the natural father and the right to take the child to his mother's home two Sundays each month. Under a similar statute, the court held that the natural father's consent to an adoption was necessary in that the mother's custody of the child was not exclusive but was shared by the father.
Upon similar facts the New Mexico Court in Onsrud v. Lehman, supra, held that consent of the parent having the right of visitation is a necessary prerequisite to the entering of a decree of adoption.
That where the court in a divorce decree grants one parent the right of visitation, the other parent's custody of the child is not exclusive and absolute, hence consent of the former is necessary to adoption, was pointed out in In re Jackson, supra. See also In re Metzger, 1921, 114 Misc. 313, 186 N.Y.S. 269 (right of visitation in father, custody in mother. Held: "the father's rights are thereby curtailed not abrogated."); In re Adoption of Fischer, Sur., 1954, 127 N.Y.S.2d 423, 426, (1954). (Statute, Domestic Relations Law, McK.Consol. Laws, c. 14, § 111, provides that consent of a parent divorced for adultery is not required in an application for an adoption. Natural father divorced on ground of adultery but granted visitation privileges. Held: Petition for adoption dismissed upon natural father's protestation thereof.)
*432 Justice Gardner, writing for this court in Allen v. Allen, 1940, 239 Ala. 116, 194 So. 153, 155, referred to certain periodic visits by the child with the father as "temporary care and custody." In that case, the "permanent custody" of the child was in the mother.
The effects of a decree of adoption are far reaching. The adoptive parent stands in the right of the natural parent, as evidenced by § 5, Tit. 27, Code of Alabama, 1940, as amended by Act. No. 115, appvd. April 14, 1956, Second Special Session, p. 443.
See also Praytor v. Cole, 1945, 247 Ala. 259, 23 So. 2d 713.
The fact that the adoption of a minor by decree of the probate court does not affect the power of a court of equity to make provisions for the custody of the child to be awarded to another than the adoptive parent, Praytor v. Cole, supra, does not diminish the aforesaid far-reaching effects of an adoption decree.
Appellant cites the case of Wright v. Price, 1933, 226 Ala. 468, 147 So. 675, in support of his contention that the probate court erred in dismissing the petition. This case holds that while a probate court cannot make a final order of adoption so long as an equitable decree placing the custody of the child in another remains in effect, said equitable decree does not prevent the entering of an interlocutory order for the adoption, to be made final when it can be done comformably to the equitable decree. It is clear, however, that if appellee's consent is necessary, the probate court could make no order respecting the adoption without such consent. § 6, Tit. 27, Code of Alabama, 1940, as amended ("No such adoption shall be permitted"). See also 1 C.J., Adoption of Children, § 57, p. 1384. "Consent of the parties to an adoption, where required by statute, is a jurisdictional fact and without it a valid order of adoption cannot be made * * *." 2 C.J.S., Adoption of Children, § 18, p. 382; Roberts v. Cochran, 1936, 177 Miss. 546, 171 So. 6; In re Adoption of Strauser, 1948, 65 Wyo. 98, 196 P.2d 862, 867; 1 Am.Jur. § 36 (Consent, where required, is ordinarily held an essential requisite to jurisdiction).
Consent of the natural father not appearing from the petition for adoption (indeed, it affirmatively appears that the father does not consent) reversible error does not appear in the dismissal of the petition of adoption without hearing the testimony on behalf of the petitioners. See Town of Sanford v. Hartley, 1952, 258 Ala. 576, 63 So. 2d 705; Carter v. Carter, 1948, 251 Ala. 598, 38 So. 2d 557.
Upon like reasoning, error, if any, of the probate court in refusing to allow the appellant-petitioner to amend the original petition such as to show the name and address of the father, the circumstances of the decree of divorce, etc., was harmless. The amendment does not allege any facts which would obviate the necessity of consent of the natural father to the adoption. See Punch & Duggan v. Walke, 1859, 34 Ala. 494. Indeed the motion to dismiss filed by the natural father showed the *433 material allegations contained in the amendment.
It results, therefore, that the decree of the probate court is due to be and is hereby affirmed.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur. | May 10, 1956 |
6a13afd4-f552-49ba-babc-354f462fcf6b | Ex Parte Hutchinson | 87 So. 2d 847 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 847 (1956)
Ex parte Elkin Gillis HUTCHINSON.
4 Div. 854.
Supreme Court of Alabama.
April 12, 1956.
Rehearing Denied June 14, 1956.
*848 Jos. B. Wiley and Walter B. Byars, Troy, for petitioner.
John Patterson, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., and Lewey Stephens, Jr., Circuit Sol., Elba, for respondent.
GOODWYN, Justice.
This is an original petition for mandamus to review the action of the Judge of the Circuit Court of Pike County in amending nunc pro tunc a judgment against petitioner in a criminal proceeding, revoking probation and ordering petitioner's arrest and detention. We ordered issuance of a rule nisi and the respondent-judge has made answer thereto.
The case made by the pleadings is as follows:
On October 4, 1950, petitioner was indicted by the Grand Jury of Pike County for the offense of burglary in the second degree. On October 2, 1953, petitioner, in open court, entered a plea of guilty to the offense as charged, at which time the trial judge made the following entry on the bench notes, viz.:
Judgment was then entered by the clerk on the minutes of the court as follows:
On August 15 and 16, 1955, the respondent issued warrants of arrest against petitioner ordering him to show cause, at a hearing set for August 19, 1955, why his probation should not be revoked. Petitioner moved to quash said warrants contending that the judgment of October 2, 1953, in providing for probation without prescribing a definite period therefor, was, in that respect, invalid, and that the sentence was fully executed on the expiration of 13 months after October 2, 1953, which was prior to the issuance of the warrants of arrest. This motion was granted. Thereupon the solicitor filed a motion to amend the judgment nunc pro tunc. After due notice to petitioner, hearing was had on said motion on September 2, 1955. On that date respondent granted the motion and amended the judgment nunc pro tunc so as to provide for probation as follows:
Immediately following the amendment respondent issued new warrants of arrest against petitioner ordering him to show cause, at a hearing set for September 9, 1955, why his probation should not be revoked.
The foregoing facts are taken from the petition filed here, which seeks to have expunged the amended judgment and the warrants issued on September 2, 1955.
Respondent, in his answer, admits these facts as true but takes issue with petitioner's right to the relief sought. It is also averred in the answer that "the true and complete order of probation actually rendered by the court was as set forth and recorded on the date of the order, viz., October 2, 1953, upon the Probation Docket of the court", in which it is provided that the sentence of 13 months "is hereby suspended and that the said defendant is probationed on this date for a period of 2 years."
The answer also contains the following averments:
It is further shown by the answer that the proceedings to revoke petitioner's probation *850 resulted from a report made to respondent by the State Probation Officer on August 13, 1955, that petitioner "had on said date been arrested in Pike County and lodged in the Pike County jail on one warrant charging violation of the prohibition law and one warrant charging reckless driving."
The determinative question presented is whether the nunc pro tunc amendment on September 2, 1955, had the effect of making petitioner subject to a two-year period of probation running from October 2, 1953.
Code 1940, Tit. 7, § 567, provides that "circuit courts * * * may, at any time within three years after the rendition of final judgment, upon the application of either party, amend any clerical error, mistake in the calculation of interest, or other mistake of the clerk or register, * * * when there is sufficient matter apparent on the record or entries of the court to amend by. * * *" There seems to be no question about this section applying to the amendment of a judgment in a criminal case. Ex parte Brandon, 243 Ala. 610, 612, 11 So. 2d 561. And petitioner recognizes the rule that when a judgment is amended nunc pro tunc, the amendment relates back to the time of the entry of the original judgment. Phillips v. State, 162 Ala. 14, 19, 50 So. 194; Yorty v. State, 11 Ala.App. 160, 163, 65 So. 914; 24 C.J.S., Criminal Law, § 1604, p. 135.
It is further recognized by petitioner that "once a valid probation commences, the probationer's sentence continues in fieri, and that a defendant is not entitled to any credit on his sentence for time served on valid probation." Persall v. State, 31 Ala.App. 309, 16 So. 2d 332.
The position taken by petitioner is that no definite probationary period was prescribed in the original judgment of October 2, 1953; that the judgment simply provided that the defendant was granted probation with suspension of sentence; that the attempted probation was invalid; that, in this circumstance, the sentence commenced to run as of October 2, 1953, and was completely satisfied 13 months thereafter, viz., on November 1, 1954; and that the amendment of the judgment on September 2, 1955, could not have any effect on petitioner since he had, prior to that time, fully satisfied his sentence.
Another argument made by petitioner is that the original judgment "in so far as it attempts to grant probation and suspend sentence is likewise invalid on the additional ground that the trial court conditioned the benefits it sought to provide on the payment of court costs", citing in support the case of State v. Esdale, 253 Ala. 550, 552, 45 So. 2d 865.
We are constrained to hold that the amendment of the judgment related back to the time of the original judgment; that petitioner was on valid probation on September 2, 1955, when the proceedings were taken to revoke his probation; and that respondent did not commit error in the action taken by him.
In support of his contention, petitioner relies on the following cases: Corporate Authorities of Scottsboro v. Johnston, 121 Ala. 397, 25 So. 809; Eddins v. Popwell, 33 Ala. App. 239, 35 So. 2d 47, affirmed 250 Ala. 453, 35 So. 2d 50; Alexander v. Posey, 32 Ala.App. 494, 27 So. 2d 237; Blakely v. State, 28 Ala.App. 574, 190 So. 102; Gardner v. State, 21 Ala.App. 388, 108 So. 635; Blackwell v. State, 19 Ala.App. 553, 99 So. 49; State ex rel. Curtis v. Heflin, 19 Ala. App. 222, 96 So. 459.
We have carefully examined these cases and do not consider them apt in the instant proceeding. In the Johnston, Popwell and Posey cases one of the principal elements involved was the lack of authority of the recorder's court to suspend sentence. There was no question involved with respect to amending a judgment nunc pro tunc so as to make it speak the truth. In those three cases there could have been no amendment with respect to the suspension of sentence because the recorder's court was without authority in the first instance to suspend sentence. In the case now before us we have an entirely different situation. The circuit court is given express authority, Code 1940, Tit. 42, §§ 19-26, as amended; *851 Amendment 38, Constitution, to grant probation and we are here dealing simply with a nunc pro tunc amendment of a judgment which could and should have been properly entered by the clerk on the minutes of the court. The bench notes clearly furnished adequate basis for the amendment; and the amendment was made within the statutory period, Code 1940, Tit. 7, § 567, supra.
We see nothing in the other cases bearing directly on the case before us.
We come now to the question concerning the effect of the provision in the judgment conditioning probation on the payment of costs.
The position taken by petitioner is that such condition rendered the probation invalid; that it was the same as if no probation had been granted at all; that being released without probation, the serving of his sentence commenced on the day of sentence and was completed at the end of thirteen months thereafter. As supporting this insistence, petitioner cites the case of State v. Esdale, 253 Ala. 550, 552-553, 45 So. 2d 865, 867, supra, where it is said:
We see no occasion to discuss this insistence other than to say that if it should be held that the condition as to the payment of costs was beyond the power of the court (which we do not decide; nor do we wish to be understood as reaffirming what was said in the Esdale case, supra), it would not necessarily follow that the part of the judgment granting probation was wholly vitiated by including such condition in the judgment. Assuming the condition to be invalid, there seems no good reason why the remaining part of the judgment granting probation should not be valid and operative. "It is generally held that the fact that a judgment is void in part will not invalidate a separable remainder of the judgment." 49 C.J.S., Judgments, § 450, p. 881; Avery Freight Lines v. Persons, 250 Ala. 40, 46, 32 So. 2d 886.
Respondent insists that petitioner is not in a position to now complain since the granting of probation was at petitioner's request, and for the further reason that petitioner has paid the costs. We pretermit discussion of these points as being unnecessary to a decision.
Writ denied.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | April 12, 1956 |
d53ca45b-4ecf-40c1-b9db-cfd1582889ab | Murphy v. Pickle | 87 So. 2d 844 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 844 (1956)
Mable L. MURPHY
v.
Beulah Mae PICKLE.
6 Div. 968.
Supreme Court of Alabama.
May 24, 1956.
*845 Dempsey F. Pennington, Birmingham, for appellant.
F. R. Ingram and W. E. Prescott, III, Birmingham, for appellee.
LAWSON, Justice.
Beulah Mae Pickle filed her bill in the circuit court of Jefferson County, in equity, against Mable L. Murphy seeking specific performance of an alleged oral contract for the conveyance of certain real property described in the bill.
Demurrer was sustained to the original bill but was overruled to the bill as amended. The respondent, Mable L. Murphy, thereupon filed her answer, which in pertinent part reads as follows: "The respondent denies each and every allegation contained in the original bill and the amendment thereto which has been filed in this cause, and demands that each and every such allegation be strictly proven by competent legal evidence." The statute of frauds was not pleaded.
The court after hearing the testimony orally rendered a decree granting the relief substantially as prayed. From that decree the respondent, Mable L. Murphy, has appealed to this court.
Assignments of Error 5 through 9 present nothing for our review. Each of those assignments challenges the action of the trial court in overruling demurrer to so-called aspects of the amended bill. If we understand the amended bill, it has but one aspect. But in any event, the demurrer was addressed only to the amended bill as a whole. The demurrer begins: "Comes the respondent, Mable L. Murphy, and demurs to the bill of complaint as amended in the above cause and to each aspect thereof separately and severally and as grounds of said demurrer sets out and assigns the following separately and severally: * * *" Then follow a number of grounds of demurrer. We have repeatedly held that a demurrer so addressed goes only to the bill as a whole. Smith v. Smith, 251 Ala. 694, 39 So. 2d 230; First National Bank of Birmingham v. Bonner, 243 Ala. 597, 11 So. 2d 348; Cook v. Whitehead, 255 Ala. 401, 51 So. 2d 886; Groover v. Darden, 259 Ala. 607, 68 So. 2d 28; First National Bank v. Forman, 230 Ala. 185, 160 So. 109. If a respondent wishes to test the sufficiency of an aspect of a bill separately, the demurrer should be addressed to that aspect separately described and point out separately the defects in the allegations with respect to it. First National Bank of Birmingham v. Bonner, supra; Cook v. Whitehead, supra.
The fourth assignment of error is that the trial court "erred in overruling respondent's demurrer to the amended bill of complaint in this cause." This assignment of error is not too general, as it is not necessary to make a separate assignment of error as to each ground of demurrer thought to have been well taken Brewer v. Brewer, 259 Ala. 149, 66 So. 2d 450; Groover v. Darden, supra. But merely assigning as error the action of the trial court in overruling the demurrer does not present for our review the question as to whether any or all of the grounds of demurrer were well taken. It has been pointed out by this court in several cases that where the action of the trial court in overruling a demurrer to a bill in equity is assigned as error, we treat only those grounds of demurrer which have been adequately argued here. Vinson v. Vinson, 256 Ala. 259, 54 So. 2d 509; Brewer v. Brewer, supra; Cook v. Whitehead, supra; Groover v. Darden, supra; Love v. Rennie, 254 Ala. 382, 43 So. 2d 458; Hackney v. Yarbrough, 233 Ala. 365, 172 So. 107.
No ground of the demurrer is expressly mentioned in brief filed here on behalf of the appellant and the slight reference made in brief to the action of the trial court in *846 overruling the demurrer to the amended bill leaves us in considerable doubt as to the "defect" in the bill which appellant contends renders the bill demurrable. We do not feel that assignment of error 4 has been argued sufficiently to warrant treatment here.
As her first witness complainant called the respondent, Mrs. Murphy. Later the complainant testified in her own behalf, as did her husband. Their testimony was in several material respects contradictory of the testimony of Mrs. Murphy. In brief of appellant is the following argument:
There is no assignment of error which brings to our attention any ruling of the trial court on the admission or exclusion of evidence. However, we call attention to the case of Price v. Cox, 242 Ala. 568, 570, 7 So. 2d 288, 290, wherein the following language was quoted with approval from 70 Corpus Juris 796, § 994: "`A party who calls his adversary as a witness is not allowed to impeach him, but he may dispute specific facts although sworn to by the witness, and he may draw any inference from his testimony which the facts stated by the witness seem to justify.'" See Jebeles-Colias Confectionery Co. v. Booze, 181 Ala. 456, 62 So. 12.
Assignments of error 1, 2 and 3, which are set out in the report of the case, are all in general terms. But the decree is a unit and if erroneous in any respect the error permeates the entire decree and an assignment in general terms is sufficient. Birmingham Electric Co. v. Alabama Public Service Commission, 254 Ala. 140, 141, 156, 47 So. 2d 455.
It is well established that in a suit for specific performance of a verbal contract for the sale of land, the complainant must establish the contract alleged in the bill by clear and satisfactory proof.
Justice Stone in Daniel v. Collins, 57 Ala. 625, 627, in writing on the subject of specific performance of an agreement to sell lands, said for the court:
Again, this court, in Allen v. Young, 88 Ala. 338, 340, 6 So. 747, wrote on this subject:
In Harrison v. Harrison, 198 Ala. 159, 160, 73 So. 454, 455, this court wrote:
See, also, Pike v. Pettus, 71 Ala. 98; Brown v. Weaver, 113 Ala. 228, 20 So. 964; Pepper v. Horn, 197 Ala. 395, 73 So. 46; Burt v. Moses, 211 Ala. 47, 99 So. 106; Box v. Box, 243 Ala. 437, 10 So. 2d 478; Thompson v. Wilson, 258 Ala. 548, 63 So. 2d 695.
The proof does not measure up to this standard. According to the averments of the bill, the contract which is sought to be specifically enforced was entered into on Friday, May 14, 1954, by the complainant, Mrs. Beulah Mae Pickle, and the respondent, Mrs. Mable L. Murphy.
After reading the testimony in this record most carefully, we are firm in the conclusion that there is no evidence to support a finding that the respondent entered into any kind of a contract with the complainant. The evidence as it relates to a contract is to the effect that it was entered into by the respondent and the complainant's husband, F. K. Pickle. Even if it be assumed that the evidence supports a finding that the respondent knew that the suit property was being purchased by F. K. Pickle for the benefit of his wife, the fact remains that no such contract is alleged in this bill. We are clear to the conclusion that the complainant did not by "clear and satisfactory proof" sustain the averments of the bill to the effect that she had entered into a contract with the respondent for the sale of the land in question.
The decree of the trial court is reversed and the cause is remanded. See Heath v. Hill, 224 Ala. 25, 138 So. 538.
Reversed and remanded.
LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
27126ef7-ba74-4848-b979-eca4db2588b3 | Terry v. State | 85 So. 2d 449 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 449 (1956)
Onlce TERRY
v.
STATE ex rel. Thomas C. PETTUS et al., Solicitors.
8 Div. 822.
Supreme Court of Alabama.
February 2, 1956.
Russell W. Lynne, Decatur, for appellant.
John Patterson, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
*450 PER CURIAM.
This is a suit in equity for the condemnation of an automobile under authority of section 247, Title 29, Code.
The trial court overruled a demurrer to the bill of complaint, and defendant has appealed.
Appellee has made a motion in this Court to dismiss the appeal. The motion to dismiss is based on two theories:
(1) That appellant's brief was filed on November 11, 1955: the transcript of the record was filed in this Court on September 28, 1955. Therefore, the brief was filed more than thirty days after the transcript was filed.Supreme Court Rule 12.
(2) That the transcript was filed in this Court on September 28, 1955, which was more than sixty days after the appeal was taken on June 29, 1955.Supreme Court Rule 37.
The first contention overlooks Supreme Court Rule 47, which provides that Rule 12, supra, does not apply in cases required by law to have preferred standing on appeal.
This appeal is from a decree overruling a demurrer to a bill in equity. It is authorized by section 755, Title 7, Code, which provides that it shall be heard and determined in preference to all other appeals except in criminal cases. So that, this is an appeal which has preferred standing in this Court and is controlled in this respect by Supreme Court Rule 47. There was no demand for an oral argument as therein provided. Therefore, the time of filing briefs is as otherwise provided by rule or law. Under that status the appeal is due to be heard at the next call of cases from that division as provided by section 22, Title 13, Code, or by consent at any time during a sitting of the Court, or on ten days' notice to the opposite party or his counsel, section 23, Title 13, Code. See amendment to Supreme Court Rule 47, subsequently amended and printed in 263 Ala. XXII.
This Court will not take a submission in civil cases without a brief by appellant. Briefs for appellant and for appellee were on file at the time of submission.
The motion to dismiss cannot be sustained on the first theory advanced.
The second theory, on which the motion to dismiss is based, is that the transcript was not filed in this Court within sixty days after the appeal was taken as required by Supreme Court Rule 37. That rule also authorizes the trial judge to extend the time for filing the transcript in this Court for good cause, but not to exceed thirty days. The trial judge made such order, but did not make it until the expiration of the sixty days (extending to sixty-one days on account of Sunday being the last daySupreme Court Rule 46). He made such order within thirty days thereafter. Appellee's contention is that the judge had no power to make the extension after the expiration of sixty (sixty-one [Sunday]) days from the date of taking the appeal. The rule makes no limitation as to the time when the trial judge can make the order. He can only extend it for thirty days from the expiration of the sixty (sixty-one [Sunday]) day period. Therefore, he cannot make such order after the expiration of the thirty day period, but this Court is authorized to do so.Supreme Court Rule 37. (See amendment to this rule subsequently adopted and printed in 263 Ala. XXI.)
The question of whether the trial judge may make an order of extension within thirty days after the sixty day period has not been considered by us heretofore. The Court now concludes that an order of the trial judge may be made within thirty days after the expiration of the sixty (sixty-one [Sunday]) day period provided he does it so as to permit the transcript to be filed within said thirty day period. With that as a proper interpretation of Supreme Court Rule 37, the transcript was filed in accordance with said rule. The motion to dismiss the appeal should be overruled.
These assignments relate to grounds 3, 4, 7, 8 and 10 of the demurrer. Those grounds of the demurrer are argued together as presenting the same principle of law. The bill of complaint is criticized by appellant's counsel in arguing those assignments *451 because it contains "no title or caption, neither an address or direction". We observe that a bill in equity was never required to contain "a title or caption" nor was it originally customary to do so; but the first part of the bill was always an address to the judge of the court (section 6521, Code of 1923; Sims Chancery Practice section 267). That is not now required by Equity Rule 2 which was in effect an amendment of section 6521, Code of 1923.
The principal argument is based upon the insufficiency and impropriety of paragraph 3 of the bill of complaint. Paragraph 3 details circumstances evidential in nature, from which an inference supposedly may be drawn of certain conclusions thought to be sufficient to justify the condemnation of an automobile used in the transportation of whiskey as provided in section 247, Title 29, as amended, pocket part, Code. Without the necessity of copying said paragraph, it is sufficient to say in response to the argument advanced that we agree those allegations are not sufficient to justify the relief sought and have no proper place in the bill of complaint. But the proper method of getting such allegations out of the bill is by a motion to strike and not by a demurrer. Thompson v. Thompson, 261 Ala. 376, 74 So. 2d 419; Wood, Wire and Metal Lathers, etc. v. Brown & Root, Inc., 258 Ala. 430, 63 So. 2d 372; Boozer v. Blake, 245 Ala. 389, 17 So. 2d 152.
The decree overruling the demurrer was not erroneous insofar as those grounds are concerned.
Assignments of error 14, 15, 19 and 20.
These assignments relate to grounds of demurrer 13, 14, 18 and 19. No. 13 is that the capacity in which complainants are acting is not shown. No. 14 is that it is not shown that complainants sue as representatives of the State. No. is that the bill of complaint "contains no introduction or statement as to parties". No. 19 is that the bill shows no right of complainant to invoke the jurisdiction of the equity court.
The appropriate designation of complainant in a proceeding under section 247, Title 29, Code, is the State of Alabama on the relation of the named solicitor or named attorney general. Howell v. State ex rel. Goodrich, 250 Ala. 243, 34 So. 2d 142.
The bill of complaint alleges that the named solicitors came on behalf of the State and bring this bill, etc. There is no particular language necessary to describe the complainant as contemplated by the statute. We think the bill of complaint sufficiently makes the necessary allegations identifying the State as complainant and acting by the solicitors named. The phraseology in this respect will not be strictly construed. Howell v. State ex rel. Goodrich, supra.
We are impressed that the argument made by counsel for appellant in respect to those assignments, and to which we have referred, is not well sustained by the allegations of the bill.
We have undertaken to answer the contentions made by counsel for appellant, and do not find any error sufficient to cause a reversal of the decree. It should be affirmed.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
All the Justices concur. | February 2, 1956 |
6948607c-1bf6-4069-9c63-70095bca0324 | Peck v. Green | 96 So. 2d 169 | N/A | Alabama | Alabama Supreme Court | 96 So. 2d 169 (1957)
Barbara Lewis PECK
v.
Marguerite Lewis GREEN et al.
6 Div. 738.
Supreme Court of Alabama.
June 14, 1956.
Rehearing Denied June 27, 1957.
*170 Young, Aird & Young, Anniston, for appellant.
Wm. S. Pritchard, Victor H. Smith and Pritchard, McCall & Jones, Birmingham, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a decree of the Circuit Court in Equity, Jefferson County, Alabama, in a cause commenced by a bill seeking the division of certain property which is the subject matter of the will of Reuben A. Lewis, Sr., who died in Jefferson County in May, 1935. The cause was submitted on stipulated facts.
In order to make the division prayed for, it was necessary to construe certain portions of the will. The pertinent portions are as follows:
This will was executed in 1917, and the testator died in 1935. At the time of his death, testator left surviving him his wife, Mattie I. Lewis, and four children, Alwyn L. Lewis, Jesse Earl Lewis, Marguerite Lewis Green, and Reuben A. Lewis, Jr.
Alwyn L. Lewis died subsequent to the date of his father's death and prior to the date of his mother's death, leaving no issue of his body.
Reuben A. Lewis, Jr., died testate in 1948, which was subsequent to the date of his father's death and prior to the date of his mother's death. At the time of his death, Reuben A. Lewis, Jr., left surviving him his second wife, Catherine Mohan Lewis, two natural children by his first wife, Sarah; namely, Reuben A. Lewis, III, and Mitchell Ives Lewis; and he also left an adopted daughter, Barbara Lewis Peck. Barbara Lewis Peck was the natural child of his first wife, Sarah, and had been adopted by him on September 25, 1925 under the laws of the State of New York. Reuben A. Lewis, Jr., left a will which was duly probated and which conveyed all his estate, real, personal and mixed to his second wife, Catherine Mohan Lewis, who subsequently, on November 25, 1953, executed a deed conveying to the two children of the body of Reuben A. Lewis, Jr.; namely, Reuben A. Lewis, III, and Mitchell I. Lewis, all of her right, title and interest in and to any part of the property involved in this litigation.
Mattie I. Lewis died testate in April 1953, leaving all her estate to her living children, Jesse Earl Lewis and Marguerite Lewis Green, who were both over the age of 25.
This suit was commenced on June 11, 1953. Complainants are Jesse Earl Lewis and Marguerite Lewis Green, while respondents are Barbara Lewis Peck, Reuben A. Lewis, III, Mitchell I. Lewis, and Catherine Mohan Lewis.
The trial court rendered a decree in which it held, in part, that Jesse Earl Lewis and Marguerite Lewis Green each own an undivided one-third interest in and to all the lands here involved; that Reuben A. Lewis, III, and Mitchell I. Lewis own the remaining one-third interest in the land, share and share alike, and that Barbara Lewis Peck owns no right, title or interest of any nature in or to any part of said lands.
Respondent, Barbara Lewis Peck, appealed from this decree, and contends that that part of the decree adjudging that she owns no right, title or interest in and to the land is erroneous. She contends that she is entitled to share equally in the undivided one-third which the court declared to be the property of her two half-brothers, Reuben A. Lewis, III, and Mitchell I. Lewis.
We must first determine whether Reuben A. Lewis, Jr., took a vested transmissible interest in the land under his father's will. If so, we need go no further, for in that event a one-third undivided interest in the land passed by Reuben A. Lewis, Junior's will to Catherine Mohan Lewis, and was conveyed by her deed to Reuben A. Lewis, III, and Mitchell I. Lewis.
Remainders are either vested or contingent. A vested remainder is one limited to a certain person at a certain time, or upon the happening of a necessary event. A contingent remainder is one limited to an uncertain person or upon an event which may or may not happen. Section 140, Title 47, Code of Alabama 1940.
In the will under consideration there are no words of a present gift to the devisees. This is an indication that no interest vested in them as of the death of the testator. Bingham v. Sumner, 206 Ala. 266, 89 So. 479; Watters v. First National Bank of Mobile, 233 Ala. 227, 171 So. 280.
If futurity is annexed to the substance of a gift, it is contingent; if merely *173 annexed thereto as to the time of enjoyment, payment or delivery of possession, it is vested. Crawford v. Carlisle, 206 Ala. 379, 89 So. 565, and cases cited therein.
In the will under consideration, the testator provided that there was to be no division of the trust property until after the death of his wife and until his youngest child arrived at the age of twenty-five. At the time of division, he provided "surviving trustee shall divide the trust property between my children, share and share alike, the child or children of any deceased child taking the share which the parent would have taken if living." (Emphasis added.)
These words providing for division of the property are the only words in the will importing a gift, and indicate that the testator's intention was that only those of his children who were alive at the time of division, and any children of a deceased child who were living at that time, would take indefeasible estates in the property. Where the testator's intention is that only those who answer the description of devisees as given in the will at the time of distribution are to share in the estate, no transmissible estate vests until the time of distribution. McGlathery v. Meeks, 219 Ala. 89, 121 So. 67; Harrison v. Harrison, 213 Ala. 418, 105 So. 179; Bingham v. Sumner, supra; George v. Widemire, 242 Ala. 579, 7 So. 2d 269, 275.
As said in George v. Widemire, supra:
From an examination of the entire will, it appears that the testator's intent was to have his estate used to provide support and maintenance for his wife, children and the children of any of his children who might die before the time of division. This support was to be accomplished through the use of profits and the expenditure of the corpus of the trust if necessary. In Bingham v. Sumner, supra, this court construed a similar will and concluded that the testatrix intended to vest that portion of the estate which should survive the life tenant's power of disposition in those children of testatrix who should survive the life tenant. We conclude that such was the testator's intention in the case before us and that no transmissible interest vested in Reuben A. Lewis.
Appellant claims the right to share as a child in the one-third interest which her adoptive father would have received had he survived the date of distribution. Appellees' contention is that the terms of the will do not include an adopted child as one of those who are entitled to share. The clause of the will giving rise to the controversy reads:
The question is whether or not the words "child or children of any deceased child" *174 include an adopted child of a deceased child. In our opinion, they do not.
In Russell v. Russell, 84 Ala. 48, 3 So. 900, this court held that an adopted child of the testator was not entitled to share under a will containing the clause: "`I give to my children two-thirds of all my personal and real estate.'" In that case, the court established that although a person is adopted, he is not the child of his adoptive parents and that the statute then in existence conferred upon him nothing but a mere right of inheritance, that is, a right to share in the estate left undisposed of by will.
The appellant argues that the laws respecting adoption have materially changed since the decision in Russell v. Russell, supra, and that under the present statutes that decision is not controlling. However, it will be noted that even the present statute, section 9, Tit. 27, Code 1940, confers upon a child adopted in another state only a right of inheritance under the laws of descent and distribution. This is not a case of inheriting property, but it is one where the right to share in the estate belongs only to those who are made beneficiaries by the will of Reuben A. Lewis, Sr. As stated in Russell v. Russell, supra:
In In re Puterbaugh's Estate, 261 Pa. 235, 104 A. 601, 602, 5 A.L.R. 1277, the Supreme Court of Pennsylvania said:
The Supreme Court of Maine said in In re Woodcock, 103 Me. 214, 68 A. 821, 822, 125 Am.St.Rep. 291:
We can find nothing in the will before us that indicates an intention on the part of the testator to include an adopted child *175 when he used the words "child or children." The appellant was not adopted until eight years after the will was executed. The adoption was accomplished in New York State where Reuben A. Lewis, Jr., resided at the time, and there is nothing in the stipulated facts to show that testator ever knew the appellant, Barbara Lewis Peck, or even knew that she had been adopted. Under these circumstances, we conclude that the terms of Reuben A. Lewis' will do not include any person other than a natural child of Reuben A. Lewis, Jr.
The decree is due to be, and is hereby, affirmed.
Affirmed.
SIMPSON, GOODWYN and SPANN, JJ., concur. | June 14, 1956 |
3b157444-8a0d-4ada-921c-4428dae4b94a | Ruck v. Ruck | 89 So. 2d 274 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 274 (1956)
Pauline J. RUCK
v.
Joseph W. RUCK.
3 Div. 687.
Supreme Court of Alabama.
June 14, 1956.
Rehearing Denied September 6, 1956.
*275 Truman Hobbs, Godbold & Hobbs, Montgomery, for appellant.
Clyde P. McLendon and Hill, Hill, Stovall & Carter, Montgomery, for appellee.
GOODWYN, Justice.
The appellant, Pauline J. Ruck, filed a petition for a writ of habeas corpus in the circuit court of Montgomery County seeking custody of her two children, Leslie and Evelyn, who were 8 and 6 years of age, respectively, when the proceeding was instituted. The appellee, Joseph W. Ruck, is appellant's divorced husband and the father of said children.
In June, 1951, the Superior Court of Cook County, Illinois, rendered a decree granting a divorce to Mrs. Ruck on the ground of cruelty. The divorce decree awarded the care, custody and education of said children to their father, who has had their custody continuously since the parties' separation in July, 1950. In September, 1953, the same court rendered a decree modifying the original decree by awarding custody of the children to Mrs. Ruck. In December, 1953, she instituted the proceeding now under review, seeking custody of said children on the strength of the modified Illinois decree. At the time of filing the petition the children were residing with their father in Montgomery County.
The trial court, in its judgment dissolving the writ of habeas corpus, recognized the validity of the Illinois decree of modification but denied custody to the mother on the basis of changed conditions since the rendition of the modified decree, that is, circumstances creating an emergency as to the immediate welfare of the children. As thus stated in the judgment:
It is insisted by appellee that the trial court erred in holding the Illinois modifying decree to be valid. But there is no cross-assignment of error taking the point. In this circumstance the question is not before us for decision. Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 257, 73 So. 2d 524; Rea v. Rea, 253 Ala. 169, 171, 43 So. 2d 402; Webb v. Webb, 250 Ala. 194, 210, 33 So. 2d 909; Great American Ins. Co. v. Pearson, 220 Ala. 664, 665, 127 So. 233; Colvin v. Payne, 218 Ala. 341, 343, 118 So. 578; Code 1940, *276 Tit. 7, § 746; Supreme Court Rule 3, as amended, Code 1940, Tit. 7, Appendix, Revised Rules of Practice in the Supreme Court, effective June 1, 1955, Code 1940, Tit. 7, Pocket Part.
Reduced to the ultimate, the question presented by the assignments of error is whether there is sufficient evidence to support the trial court's finding of an emergency as to the immediate welfare of the children. Sappington v. Fort, 258 Ala. 528, 531, 63 So. 2d 591; Ferguson v. State ex rel., 251 Ala. 645, 647, 38 So. 2d 853; Ex parte State ex rel. McLaughlin, 250 Ala. 579, 35 So. 2d 507; Little v. Little, 249 Ala. 144, 30 So. 2d 386, 171 A.L.R. 1399.
It is appellee's insistence, however, that this point should not be considered because it affirmatively appears from the record that there was evidence before the trial court (examination of the children by the court) which is not set out in the record We are constrained to hold that this insistence is well taken. Moore v. Pettus, 260 Ala. 616, 625, 71 So. 2d 814; Grand Lodge, etc., v. Hermione Lodge No. 16, 258 Ala. 641, 645, 64 So. 2d 405; Thomas v. Thomas, 246 Ala. 484, 486, 21 So. 2d 321; Fuller v. Blackwell, 246 Ala. 476, 477, 21 So. 2d 617; Gipson v. Hicks, 243 Ala. 617, 618, 11 So. 2d 461; Linn v. Linn, 242 Ala. 688, 690, 8 So. 2d 187; McGriff v. McGriff, 242 Ala. 69, 4 So. 2d 507; Allen v. Allen, 223 Ala. 223, 225, 135 So. 169; Hogg v. Jenifer Iron Co., 215 Ala. 683, 112 So. 207; Wood v. Wood, 119 Ala. 183, 185, 24 So. 841. From Moore v. Pettus, supra [260 Ala. 616, 71 So. 2d 821], is the following:
In the trial court's decree, it is stated as follows:
The record does not disclose any testimony given by the children. Hence we have no way of knowing what, if any, factual statements they made, nor what effect any such statements might have had on the trial court's conclusion. In short, we are left to surmise only. In reviewing the judgment on appeal we are confined to the record and would not be warranted in assuming that evidence, relevant and material to the case, was not given by the children. We must presume that they gave evidence sufficient in character and weight, considered in connection with all the other evidence, to justify the trial court's conclusion.
We are not unaware of the practice of interviewing minor children in custody cases as was done in the instant case. We recognize, too, that the private examination of children in such cases, no doubt, would be more helpful in obtaining full and frank *277 disclosures from them than if examined as ordinary witnesses. But in following this course it is obvious that a conclusion reached by the trial court on the basis of their evidence, which is not included in the record, is thereby made immune to review on appeal.
We do not decide whether such examination by the court would be ground for reversal, since there is no assignment of error taking the point. In this connection, see the following authorities: Ex parte Leu, 240 Mich. 240, 215 N.W. 384, 385, 386-387; Hicks v. Hicks, 26 Tenn.App. 641, 176 S.W.2d 371, 377, certiorari denied July 3, 1943; Brooks v. Thomas, 193 Ga. 696, 19 S.E.2d 497, 499; Willingham v. Willingham, 192 Ga. 405, 15 S.E.2d 514, 516-517; Sheehy v. Sheehy, 88 N.H. 223, 186 A. 1, 4, 5, 107 A.L.R. 635; Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638; Burger v. Burger, 6 N.J.Super. 52, 69 A.2d 741, 742; Penn v. Abell, Tex.Civ.App., 173 S.W.2d 483, 488; Callen v. Gill, 7 N.J. 312, 81 A.2d 495, 498, 499; Martinez v. Martinez, 49 N.M. 405, 165 P.2d 125, 128; Nelson, Divorce and Annulment, 2d Ed., §§ 15.47, 15.48, pp. 251-254. We here note that the record does not disclose whether the examination was made with the consent of the parties or over their objections. Nor is there any showing of whether or not counsel for the parties were present at the examination and afforded an opportunity to question the children. In any event, the evidence given by the children is not set out anywhere in the record. In this situation the trial court's findings from the evidence are not open for review.
The judgment discharging the writ of habeas corpus and remanding the children to the care, control and custody of their father, Joseph W. Ruck, is due to be affirmed. It is so ordered.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and SPANN, JJ., concur. | June 14, 1956 |
7b7ac403-214c-4855-93fd-18a451b4c932 | McLemore v. INTERNATIONAL UNION, ETC. | 88 So. 2d 170 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 170 (1956)
Burl McLEMORE
v.
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C. I. O., an unincorporated organization, et al.
8 Div. 814.
Supreme Court of Alabama.
February 2, 1956.
Rehearing Denied June 21, 1956.
*171 Horace C. Wilkinson, Birmingham, and Julian Harris and Norman W. Harris, Decatur, for appellant.
Adair & Goldthwaite, Atlanta, Ga., Harold A. Cranefield, Detroit, Mich., and Sherman B. Powell, Decatur, for appellees.
MERRILL, Justice.
Plaintiff McLemore sued the defendant Unions and one Michael Volk, alleging that they prevented him from working at his job at the copper plant in Decatur, by means of unlawful picketing and committing an assault and battery on him. The jury awarded a verdict of $8,000. Defendants filed a motion for a new trial which was granted, and it is from that ruling that this appeal is taken.
In the language of the trial judge, "the pivotal question raised by the motion for a new trial is whether the arguments of one of plaintiff's attorneys complained of, constituted such prejudicial error as to require a new trial". The questioned argument was not objected to at the time of its utterance; thus, no part of same was reported by the court reporter. The matter was presented on the hearing of the motion for a new trial by three affidavits; one by an attorney for the defendants, one by the plaintiff and one by one of plaintiff's attorneys, Mr. Horace C. Wilkinson.
We quote from amended ground 88 of the motion for the new trial, which adequately shows the matters complained of:
The body of Mr. Wilkinson's affidavit is as follows:
The appellant's first contention is that "the verdict of the jury was not contrary to the evidence and was not excessive and hence was not the result of improper argument". This same argument was made in the case of Williams v. City of Anniston, 257 Ala. 191, 58 So. 2d 115, 117, wherein we said:
Applying this test, as did the trial judge to the facts in the instant case, we are unable to say that the questioned argument might not have influenced the verdict.
It is also contended that the action of the trial judge in granting the motion for a new trial on the ground of improper argument was a determination that there was no merit in any other ground of the motion, including grounds that the verdict was excessive, was the result of bias or prejudice, or was contrary to the evidence. This argument cannot prevail. A determination by the trial judge that one ground for a motion for a new trial has merit, is not, without more, a determination that all other grounds of the motion are without merit. We said in the case of Rhodes v. Roadway Express Co., 261 Ala. 14, 73 So. 2d 740, 742,
It is next contended that the questioned argument was provoked by improper argument of opposing counsel and that it was retaliatory and in reply to such improper argument. The finding of the trial judge in this regard, was in part as follows:
We think the above finding is supported by the evidence. The fact that Negroes attended the Union meetings and participated in picketing was brought out not by the defendants but by the plaintiff. Likewise, the copy of the Union's Constitution, which was in evidence, was introduced by the plaintiff and not by the defendants.
Appellants next contend that "since defendants interposed no objection to the argument at the time it was made, and therefore speculated on the verdict of the jury, they should not be heard to complain of the argument." It is true as a general rule, improper argument of counsel does not constitute grounds for a new trial unless there is timely objection or a motion to exclude, a ruling thereon by the court and an exception thereto, or a refusal by the Court to make a ruling. However, *174 as stated in Anderson v. State, 209 Ala. 36, 95 So. 171, 179,
Two of our most recent cases which recognize the existence of the quoted exception are Washington v. State, 259 Ala. 104, 65 So. 2d 704, and Jackson v. State, 260 Ala. 641, 71 So. 2d 825.
We are impressed by a statement of the trial judge in his opinion on the motion for the new trial where he stated
We are at the conclusion as was the trial judge, that the argument here complained of should not have been indulged. In the case of Loeb v. Webster, 213 Ala. 99, 104 So. 25, 27, this Court stated:
The position of a trial judge is such that he is better able than we to ascertain the extent to which improper arguments may have on the minds of jurors. It is the duty of the trial court on motion to set aside a verdict and grant a new trial if the judge has a definite and well considered opinion that such improper argument was prejudicial to the extent that its harmful influence was not or could not be eradicated. Certainly the trial judge in the instant case deemed it necessary under the circumstances to grant a new trial. And because he saw and heard the parties, observed the jurors and their reaction, presumption is indulged in favor of his ruling granting or refusing a new trial. 2 Ala. Digest, Appeal and Error.
We are convinced that under the circumstances existing in this case, that the argument of counsel was "`"so grossly *175 improper and highly prejudicial, that its evil influence and effect could not be eradicated from the minds of the jury by any admonition from the trial judge"'". National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So. 2d 492, 497; Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So. 2d 619.
The judgment of the circuit court is affirmed.
Affirmed.
LAWSON, SIMPSON, STAKELY, GOODWYN and MAYFIELD, JJ., concur.
LIVINGSTON, C. J., dissents. | February 2, 1956 |
54a97f0c-e0da-4e05-9b54-ddb869497d94 | Board of Education of Blount County v. Phillips | 89 So. 2d 96 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 96 (1956)
BOARD OF EDUCATION OF BLOUNT COUNTY et al.
v.
C. B. PHILLIPS, Superintendent of Education, et al.
6 Div. 829.
Supreme Court of Alabama.
July 26, 1956.
Finis E. St. John and Jack C. Riley, Cullman, for appellants.
Johnson & Randall, Oneonta, for appellees.
LIVINGSTON, Chief Justice.
This is an appeal from a judgment overruling the respondents' demurrer to a bill in equity which was filed for the purpose of enjoining the establishment of a senior high school at Appalachian, in Blount County, Alabama. The complainants are the Blount County Superintendent of Education and 38 individuals who are resident taxpayers and patrons of the Blount County school system. The respondents are the Board of Education of Blount County, Houston C. Blackwood, Lawrence E. Sellers, Ernest T. Bynum, Frank Carter, and Marvin L. Cox, as members of the Board of Education of Blount County, and W. J. Terry, as Superintendent of Education of the State of Alabama.
The bill alleges that the Board of Education of Blount County operates a general school system throughout the county with the exception of the City of Oneonta which operates its own system; that the county schools operate on a split or "cotton picking term," whereas the city schools do not; that the children in the Appalachian area would suffer economically from a cotton picking term; that the population of Blount *97 County decreased between the 1940 and 1950 census while the population of Oneonta and the adjacent area increased; that there are six white senior high schools and eight junior high schools, including one at Appalachian in Blount County; that the State Department of Education in 1952-53 recommended there be only four senior high schools in the county, and that the junior high school at Appalachian be discontinued; that there is only one paved road in the area of Appalachian; that the senior high students in the Appalachian area attend the high school in Oneonta, and the majority desire to continue to do so; that the senior high school in Oneonta has 650 students and 20 teachers, and offers a wide variety of subjects and extracurricular activities; that the County Board of Education owes $184,000 in outstanding warrants due September 1954 to September 1965, $120,000 in short-term loans to the State National Bank; has on hand $55,220.92 cash, and has a deficit balance of $77,726.87, to be made up from future earnings; that many school buildings in the county need repairs and improvements including inside toilets, and the County Board of Education is without funds to provide these items; that there would be less than 50 students in the senior high at Appalachian, and they would have a very limited choice of courses and extracurricular activities; that some students would have a longer ride on the school bus than they now have; that the site at Appalachian is unsuited for a senior high school; that the water supply is insufficient; that Appalachian is a small community with no nearby densely populated areas, and the average daily attendance at the junior high school there is 73.25; that it would cost $75,000 to establish a senior high school and would require two additional teachers at a salary of $2,500, which would be a waste of the taxpayers' money; that the Blount County Board of Education, without the recommendation or approval of the County Superintendent of Education, arbitrarily and contrary to the best interest of the schools and students, authorized the establishment of a senior high school at Appalachian; that the State Superintendent of Education, acting solely on the unanimous request of the County Board of Education and contrary to his better judgment, approved the action of the County Board and authorized a senior high school at Appalachian; that the County Board authorized the chairman of the board to advertise for bids for the sale of $75,000 in school warrants, payable from the countywide three-mill school tax in order to establish the school, and that the warrants have been advertised for bids.
An amendment to the bill sets out the repairs and equipment needed at various schools in the county and alleges that the county board will be without the funds necessary to meet those needs for several years if it incurs the additional $75,000 deficit. It further alleges that none of the county high schools are overcrowded and that no high school in the county has ever qualified for membership in the Southern Association of Schools and Colleges.
The complainants prayed that the respondents be enjoined from accepting any bid upon any warrant or bond against the Blount County-wide three-mill school tax, issuing any warrants, notes, or other evidence of indebtedness against the Blount County-wide three-mill tax, or any other school-fund tax or income or anticipated revenue, selling any school warrants or bonds, incurring any liability against the Blount County school funds or assets, or anticipated tax or revenue for the purpose of establishing a senior high school at Appalachian, or constructing a senior high school building, or remodeling the present school at Appalachian for a senior high school. They further prayed that the respondents be enjoined from building a senior high school or establishing a senior high school at Appalachian, or remodeling the present school building for a senior high school.
*98 It is within the discretion of the County Board of Education to determine the need for and location of schools within the county, and in the absence of fraud or bad faith or gross abuse of discretion, the courts will not interfere and thus substitute their judgment for the judgment of the board. Vaughan v. McCartney, 217 Ala. 103, 115 So. 30; Mullins v. Board of Education of Etowah County, 249 Ala. 44, 29 So. 2d 339.
In Scott v. Mattingly, 236 Ala. 254, 182 So. 24, 26, this court held a bill seeking to enjoin a county board of education from purchasing certain school buses to be without equity and applied the rule as stated in Corpus Juris. In that case the court said:
The position of this court is clearly and concisely set out in Mullins v. Board of Education of Etowah County, supra, in which it is said [249 Ala. 44, 29 So.2d 341]:
In discussing the facts that are necessary to present a case of gross abuse of discretion, the Supreme Court of Pennsylvania in Lamb v. Redding, 234 Pa. 481, 83 A. 362, 363, said:
We are of the opinion that the bill before us is insufficient to present a case of gross abuse of discretion. The allegations that the action of the respondents is "a gross abuse of discretion and arbitrarily unjust" and "is such an arbitrary and unreasonable act or conclusion as to shock the sense of justice and indicate lack of fair and careful consideration" do not aid the bill. Mullins v. Board of Education of Etowah County, supra; State ex rel. King v. Board of Education of Russell County, 214 Ala. 620, 108 So. 588; Hodges v. Board of Education of Geneva County, 245 Ala. 64, 16 So. 2d 97.
There are no facts alleged to indicate that the board was motivated by any consideration other than the public interest or that it failed to consider all the arguments which the complainants urge against the proposed action. The facts alleged which complainants rely on to show that the respondents abused their discretion may be grouped into these main categories: (1) that the population of the Appalachian area is not sufficient to warrant a senior high school, (2) that the money required to establish the proposed school should be spent in other ways, if at all, (3) that the more varied curriculum and extracurricular activities available at the Oneonta High School would make it beneficial to the students to attend the city high school, (4) that the physical equipment at the Appalachian School and the geographic conditions of the area make Appalachian an unsuitable site for a senior high school, and (5) that the county board acted contrary to the recommendations of the county superintendent. It is apparent that in making a determination on each of these considerations there is ample room for reasonable differences of opinion, and there is nothing in the bill to indicate that the County Board of Education did anything other than adopt the solution which in their *100 judgment was proper. As pointed out in the authorities cited above, the court will not attempt to determine whether the board's action was wise or unwise. The fact that others may consider the board's judgment was not to the best interests of the district affords no grounds for relief. State ex rel. Ross v. Board of Education of the City of Beloit, 177 Kan. 540, 280 P.2d 929; School District Number 17 of Sherman County v. Powell, 203 Or. 168, 279 P.2d 492.
Appellees argue that the demurrer was properly overruled in that the bill presents a basis for injunctive relief on the theory that the County Board of Education has no authority to take the action sought to be enjoined without the recommendation or approval of the County Superintendent of Education. This contention must fail because it appears from the bill that although the County Superintendent neither recommended nor approved the action of the County Board of Education, the dispute was settled by the State Superintendent of Education by his action in approving the action of the County Board of Education and authorizing the establishment of a senior high school at Appalachian. The State Superintendent of Education is given the authority to settle disputes and controversies involving the proper administration of the public school system and to review the action of county boards of education and county superintendents of education and make a disposition of the matter which is binding on the parties concerned. Tit. 52, §§ 44, 47, Code of Alabama 1940.
We conclude that the bill does not present a case entitling the complainants to the relief prayed for and that the demurrer was due to have been sustained. The judgment of the circuit court therefore must be reserved.
Reversed and remanded.
SIMPSON, MERRILL and SPANN, JJ., concur. | July 26, 1956 |
33e2a766-4ca9-41f3-81a2-ce2e474ca911 | Johnson v. Bryars | 86 So. 2d 371 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 371 (1956)
Willie JOHNSON
v.
Earl A. BRYARS.
1 Div. 654.
Supreme Court of Alabama.
March 22, 1956.
Rehearing Denied April 12, 1956.
*373 N. S. Hare, John D. Bonham and David Miller Nettles, Monroeville, for appellant.
C. Lenoir Thompson, Bay Minette, and B. E. Jones and R. L. Jones, Monroeville, for appellee.
PER CURIAM.
This is an appeal from a judgment of nonsuit to review a judgment overruling demurrers to pleas.
The judgment of nonsuit is in good form and complete in that respect. It recites that it is taken by plaintiff to review the judgment upon rulings on demurrer to pleas 3, 4 and 5. The assignments of error are as to those rulings. But the record as originally certified did not contain a judgment to that effect. The certificate of the clerk to the transcript, dated November 14, 1955, is that it contains a full and complete copy of the record and proceedings of said court in this cause. On December 21, 1955, a certiorari was issued to complete the record by certifying the order or judgment of the court on the demurrer of plaintiff to the pleas of defendant. On January 12, 1956 the clerk made return to the certiorari, which included a copy of a judgment complete on its face showing the rulings of the demurrer to the complaint and that the demurrer to pleas of res judicata and 4 and 5 of estoppel was overruled; and that to review it a nonsuit was taken. The judgment of nonsuit was repeated. The certificate of the clerk was "that at the time the transcript to the Supreme Court of Alabama was prepared in this cause this judgment had not been written up or entered on the minutes of the court. * * * that this judgment conforms with the bench notes entered on the docket sheet in this case by Hon. A. H. Elliott, Circuit Judge". The judgment so certified is signed by said judge. We assume that to mean that said judgment as entered showing a ruling on the demurrer was not entered on the minutes until sometime (the date not given) after the original transcript was certified and filed here. It was certified November 14, 1955 and filed here November 17, 1955.
The judgment of nonsuit in the original transcript was dated March 28, 1955. So that when the clerk certified to the transcript on November 14, 1955, the judgment on the demurrer had not been extended nor entered on the minutes. The amended transcript was filed January 12, 1956. It included the complete judgment. It follows therefore that such judgment was entered between November 14, 1955 and January 12, 1956, or more than thirty days after the final judgment was rendered which was March 28, 1955, and without a nunc pro tunc proceeding.
Along with the submission here on the merits, appellee "moves this Court to strike that certain alleged judgment in the above entitled cause, which appears in the supplemental *374 transcript filed in this cause by the clerk of the Circuit Court of Monroe County, Alabama, as return to the writ of certiorari". The grounds of the motion may be summarized as that the judgment is void; was entered without authority of law; entered pending this appeal; that appeal was taken from the judgment of nonsuit and not from the judgment on the demurrer to the pleas.
At the same time there was also submitted a motion by appellant to this Court "to amend the final judgment of the Circuit Court of Monroe County appealed from in this case * * * by adding the formal words `considered and adjudged' to that part wherein the Circuit Court of Monroe County recites its overruling of plaintiff's demurrers to defendant's pleas 3, 4 and 5 or so amending said judgment as will carry out the manifest intention of the circuit court".
This Court cannot strike the judgment as certified from the minutes of the circuit court except upon a review of the judgment of that court acting upon a motion to strike. Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Simmons v. Bainter, 155 Miss. 804, 125 So. 338. The circuit court has exclusive primary right to do so and to amend its judgment nunc pro tunc. Webb v. French, 225 Ala. 617, 144 So. 818. When the clerk certifies that the transcript which he made is a true and correct copy of the record and proceedings of that court, we accept as true that such is the record and proceedings of that court. If the transcript is not correct or omits something, the remedy is to ask for a writ of certiorari to complete it. This Court will not, on original application to it, alter, amend or strike any matter which is thus certified on the ground that the record of the trial court is imperfect, defective or incomplete. That is the province of the trial court. Wood v. Amos, 236 Ala. 477, 183 So. 639; Home Ins. Co. v. Shriner, 235 Ala. 65, 177 So. 897; Ex parte French, 226 Ala. 297, 147 So. 631; Webb v. French, supra; 4 C.J.S., Appeal and Error, § 1117, pp. 1588, 1589. The "record filed for purpose of appeal is sole, conclusive and unimpeachable evidence of proceeding in lower court". Union Mutual Ins. Co. v. Robinson, 216 Ala. 527, 113 So. 587; Yorkshire Ins. Co. v. Bachus, 215 Ala. 112, 110 So. 27; Prinz v. Weber, 126 Ala. 146, 28 So. 10. Therefore, this Court cannot sustain either the motion to strike the judgment from the record nor the motion to amend the final judgment.
It is necessary when an appeal is taken from a final judgment, and the assignments of error are based upon rulings on demurrer to the pleading, that the record contain a judgment in proper form sustaining or overruling the demurrer. Herrington v. Hudson, 262 Ala. 510, 80 So. 2d 519; Thomas v. White, 244 Ala. 128, 12 So. 2d 567; Alabama Fuel & Iron Co. v. Vaughan, 205 Ala. 589, 88 So. 857; Tallassee Falls Mfg. Co. v. Western Railway of Alabama, 128 Ala. 167, 29 So. 203. The ruling on the demurrer is a part of the judgment roll. Millican v. Mintz, 251 Ala. 358, 37 So. 2d 425; 49 C.J.S., Judgments, § 125, p. 261, note 75.
A judgment at law may be amended nunc pro tunc within three years after it is pronounced by pursuing the method provided by the statutes, sections 566-567, Title 7, Code. This includes, as a feature of the judgment so amended, rulings on the pleading regardless of whether those rulings were had at the same time when the final judgment was rendered. The judgment on the pleading, of course, may be amended at any time without any procedure to that end while the cause is in fieri, that is, before the final judgment. Ex parte Green, 221 Ala. 298(5), 129 So. 72; Scott v. Leigeber, 245 Ala. 583, 18 So. 2d 275. But after the final judgment has been rendered the same processes for amendment nunc pro tunc as to pleadings are necessary as for an amendment of any other feature of the final judgment. When a final judgment is rendered and a bench note made of it, but it is not extended on the minutes it is not then an authentic record of the judgment of the court. But by a proceeding nunc pro tunc under section 567, Title 7, Code, conducted within three *375 years thereafter, it may be ordered written up on the minutes and when this is done it relates back to the date of its rendition. Without such a proceeding, the entry of a judgment on the minutes by the clerk pursuant alone to the authority of the bench notes must be done within term time. Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Campbell v. Beyers, 189 Ala. 307, 66 So. 651; Ex parte Brandon, 243 Ala. 610, 11 So. 2d 561; Ex parte Alphonse, 261 Ala. 177, 73 So. 2d 727. Term time now means thirty days after the rendition of the judgment. Section 119, Title 13, Code; Kolb v. Swann Chemical Corp., 245 Ala. 438, 17 So. 2d 402; Pate v. State, 244 Ala. 396, 14 So. 2d 251; Ex parte Brandon, supra; Sisson v. Leonard, 243 Ala. 546, 11 So. 2d 144.
Proceedings leading to a judgment nunc pro tunc may be had in the circuit court where the judgment was rendered, after an appeal has been taken to this Court, and when on such a proceeding a final judgment is made effective as of the date when it was rendered any defect therein with respect to its entry on the minutes is cured. Seymour v. Thomas Harrow Co., 81 Ala. 250, 1 So. 45; Bailey v. State, 253 Ala. 553, 45 So. 2d 785.
It is said in many of our cases that an appeal does not prevent the trial court from perfecting its record for use on appeal and that court alone has such authority. See, Nolan v. Moore, 254 Ala. 74, 46 So. 2d 825; Home Ins. Co. v. Shriner, 235 Ala. 65, 177 So. 897; Pappot v. Howard, 154 Ala. 306, 45 So. 581. That was not done in this case.
The transcript as certified by the clerk does not show an authentic judgment on the demurrer of plaintiff to the pleas, on which the assignments of error are based. What purports to be such a judgment is shown by the certificates of the clerk to the transcript to have been put on the minutes after the expiration of thirty days from the date of the final judgment and without an order nunc pro tunc, and cannot be considered as effective.
Both motions should therefore be overruled, and the judgment affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Motions overruled. Judgment affirmed.
LIVINGSTON, C. J., and LAWSON, GOODWYN and MERRILL, JJ., concur. | March 22, 1956 |
b53816d0-326c-4e98-a5bb-4881137df593 | Pigford v. Billingsley | 84 So. 2d 664 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 664 (1956)
O. H. PIGFORD, D/B/A Pigford Farm Equipment Company
v.
B. M. BILLINGSLEY.
3 Div. 709.
Supreme Court of Alabama.
January 12, 1956.
*665 W. Clarence Atkeison, Prattville and Glen T. Bashore, Clanton, for petitioner.
H. T. Fitzpatrick, Jr., Montgomery, opposed.
MAYFIELD, Justice.
This case comes to us on the petition of O. H. Pigford for certiorari to the Court of Appeals to review and revise the judgment of that Court.
Our study of the opinion of the Court of Appeals raises serious questions concerning the factual situation involved in this cause. However, the contentions advanced by the petitioner can only be supported by a reference to the original record in the case. As the opinion of the Court of Appeals does not set out the facts in extenso, this Court is foreclosed from further inquiry into the facts of the cause. The scope of the review of opinions of the Court of Appeals, by this Court, is limited to errors apparent on the face of the opinion of the Court of Appeals. The rules applicable to conclusions of fact found by the Court of Appeals were stated in Dixie Drive It Yourself System, Mobile Co., Inc., v. Hames, 253 Ala. 132, 43 So. 2d 143, 144, as follows:
As the case is presented to us on certiorari, we are bound by the findings of fact of the Court of Appeals. We, therefore, conclude that the merit of petitioner's contentions cannot be considered on this review.
Petitioner's able counsel strenuously insists that a judgment rendered by the Court of Common Pleas of Autauga County on 21 February 1952 was a final adjudication of the matter in controversy in this suit. Further, that the Court of Common Pleas was without jurisdiction subsequently to avoid its prior judgment. And that, therefore, a subsequent judgment of that court attempting to avoid its first judgment was a complete nullity. The opinion of the Court of Appeals rejects this position taken by *666 the petitioner. Even if we concede that this Court may properly go behind the opinion of the Court of Appeals to determine this question, we find that the matters relied on by the petitioner and essential to establishing his contention are not contained in the record.
We find one statement in the opinion of the Court of Appeals which requires correction. The last paragraph of that opinion is as follows:
The above quoted paragraph of the opinion of the Court of Appeals relies on a statement found in Lackey v. Thomas, 28 Ala.App. 302, 184 So. 262, 263. We do not interpret the paragraph referred to in the Lackey case as a statement of a legal principle. Rather, we interpret this paragraph in the Lackey case to be the application by the Court of Appeals of a correct legal principle to the facts in the particular case then before it.
The correct statement of the law is found in the preceding paragraph of the Lackey case and is as follows:
The last paragraph of the opinion of the Court of Appeals in the instant case is specifically disaffirmed, as it does not fully state the law on the point considered in the Lackey case. Also, see Mitchell v. Kinney, 242 Ala. 196, 5 So. 2d 788; Pope v. Howle, 227 Ala. 154, 149 So. 222; Aetna Insurance Co. v. Kacharos, 226 Ala. 504, 147 So. 438, 91 A.L.R. 1432.
Because of the limited scope of our review, the application of the correct rule by the Court of Appeals would lead us to the same result. For that reason, the judgment of the Court of Appeals must be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | January 12, 1956 |
a5a07d45-d472-4f0d-bf9a-584451c7fba5 | Pearson v. Birmingham Transit Company | 87 So. 2d 857 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 857 (1956)
Jack PEARSON
v.
BIRMINGHAM TRANSIT COMPANY.
6 Div. 995.
Supreme Court of Alabama.
May 24, 1956.
Hare, Wynn & Newell, Birmingham, for appellant.
Deramus, Fitts, Johnston & Mullins, Birmingham, for appellee.
PER CURIAM.
This is an appeal by plaintiff from a judgment rendered on a verdict for defendant in a suit for personal injuries claimed as the result of the negligence of defendant in causing a city bus to collide with plaintiff's automobile which had been brought to a stop for a red light at the intersection of the streets. The collision occurred in April 1954. Both vehicles were headed east on Third Avenue N., in Birmingham, which is a four lane highway and intersects 30th Street. Plaintiff had passed the bus and had stopped for the red light. His car was partly on or very near the line dividing the two lanes headed east. Plaintiff claims he had stopped for a few seconds when defendant's bus came up and struck his car in the rear causing him personal injuries. Defendant claims that as they were both slowing for a stop signal plaintiff's car turned to its right and ran in front of the bus, and that the bus could not be stopped in time to prevent bumping the rear fender very lightly. Defendant *858 disputed the claim of personal injury which plaintiff asserted. There was much evidence in that respect, together with evidence of doctors' and hospital bills.
Practically all the assignments of error relate to overruling the motion for a new trial. On an appeal under section 764, Title 7, Code, the appellant may assign for error that the court "improperly granted or refused to grant a new trial". This satisfies Supreme Court Rule 1, Code 1940, Tit. 7 Appendix. Such an assignment of error justifies consideration of any ground of the motion stated with sufficient definiteness to direct the court's attention to the alleged erroneous ruling. Cobb v. Malone, 92 Ala. 630(2), 9 So. 738; Suits v. Glover, 260 Ala. 449, 71 So. 2d 49, 43 A.L.R.2d 465; Roan v. McCaleb, Ala., 84 So. 2d 358. On such an assignment we would consider any ground of the motion which is clear and specific and which is argued by counsel.
The principal insistence made by counsel for appellant in that connection is that the court should have granted plaintiff's motion for a new trial because the jury was influenced by passion, prejudice or other improper motive, and because contrary to the great weight of the evidence resulting from two questions propounded to plaintiff as a witness seeking to show that plaintiff was carrying insurance which covered his damages claimed in the complaint; and that his claim for damages was either reduced or entirely covered by it.
There was evidence that in January 1954, before April 1954 when the accident here involved occurred, plaintiff had sustained an accident while driving a different car. Defendant proved without objection that plaintiff had collision insurance on that accident. He was not personally injured. Later, on cross examination, counsel for defendant asked plaintiff if he did not have medical coverage by the State Farm Insurance Company covering the accident of April 1954 (here involved). The objection by plaintiff's counsel to this question was that it is immaterial. The objection was sustained. The court made the following observation:
Thereupon the following proceedings were had:
"Mr. Hare: I object on the same grounds as before.
"Mr. Hare: We object to it.
*859 "Mr. Johnston: Yes, sir, I mean that, or that his insurer did pay the doctors in lieu of his paying it.
"The Court: I will sustain. I don't think that is material.
"Mr. Johnston: We except.
"Mr. Johnston: He says he made no claim for that accident.
"Mr. Hare: That is all I need. Thank you.
Those are the incidents which appellant claims should have required the granting of his motion for a new trial. Appellee claims that the motion for a new trial is not specific enough with reference to those incidents. The only ground of the motion he claims to be directly in point is the ninth which is that "the court erred in allowing the defendant to ask questions about collision insurance that plaintiff carried". (But the court made no such ruling.)
Other grounds of the motion are that the verdict was against the great weight of the evidence; was the result of passion and prejudice, or other improper motive; or was the result of surprise, accident or mistake. The remaining grounds need no discussion.
In consultation the Court has concluded that the motion for a new trial does not sufficiently present the question for consideration and review on this appeal. In order to do so the motion for a new trial should specify as one of its grounds the conduct claimed to be prejudicial and ineradicable, and without such ground of the motion it is not sufficient to present the question.
But the Court has reached the conclusion that it is appropriate at this time to refer to the question involved and express its opinion so that it may be a guide to the future course of such trials.
An important question is whether plaintiff can take advantage of that situation by a motion for a new trial unless he made a motion for a mistrial, when it occurred. But defendant should not have the privilege of voluntarily forcing the plaintiff either to move for a mistrial and thereby cause a continuance of his case, or accept the consequences of illegal matter prejudicial and ineradicable in effect. The rule is that the party so adversely affected may have a new trial on that account without having made a motion for a mistrial. But to be so, its influence must be ineradicable. Birmingham Ry., Light & Power Co. v. Drennen, 175 Ala. 338, 57 So. 876; Anderson v. State, 209 Ala. 36(20), 95 So. 171; American Ry. Express Co. v. Reid, 216 Ala. 479, 113 So. 507; Pure Milk Co. Inc., v. Salter, 224 Ala. 417, 140 So. 386; National Biscuit Co. v. Wilson, 256 Ala. 241(13), 54 So. 2d 492; Alabama Great Southern R. Co. v. Gambrell, 262 Ala. 290, 78 So. 2d 619. Those cases do not expressly refer to arguments about insurance or other improper reference to insurance carried by the opposing party, but declare a general principle.
With reference to an argument made by counsel emphasizing the existence of insurance carried by his opponent covering the transaction, this Court has taken the position that its influence is ineradicable, Standridge v. Martin, 203 Ala. 486, 84 So. 266; Colquett v. Williams, Ala., 86 So. 2d 381, and therefore it is not incumbent upon his adversary to move the court for a mistrial, but he has the privilege of waiting until there is an adverse verdict and then move for a new trial.
*860 In the instant case there was no argument by counsel or side remark in that connection. The only conduct of defendant's counsel which could be supposed to be reprehensible was, first, to ask the plaintiff the question if he had insurance, probably realizing at the time that it was not competent evidence that he had such insurance, and after the court had sustained objection to it and expressed the view to defendant's counsel that such evidence was immaterial, then it may be said to be reprehensible for defendant's counsel to propound the same question in substance to plaintiff as a witness. So that the conduct on the part of defendant's counsel, alleged to be reprehensible, was in asking the question in the first place, and then repeating it after there had been an adverse ruling.
In the case of Birmingham Baptist Hospital v. Blackwell, 221 Ala. 225, 128 So. 389, 392, this Court gave emphasis and effect to the principle that it will "constitute grounds for new trial if counsel, in disregard of the court's ruling that a certain line of evidence is inadmissible, persists in attempting to get such evidence before the jury to the prejudice of the unsuccessful party". The opinion quotes from a Kentucky case, Louisville & Nashville R. Co. v. Payne, 133 Ky. 539, 118 S.W. 352, 353, in part as follows: "`The misconduct of counsel complained of in this case was the repeated asking of incompetent questions over the objection of counsel for defendant, and in the face of the rulings of the court that such questions were incompetent'". It was held in that case, as pointed out by this Court: "`When the trial court had so decided and ruled, counsel for plaintiff should have desisted in his efforts to bring the matter before the jury. Of course a large discretion is allowed an attorney in presenting his case, and so long as it does not appear that he is knowingly and intentionally violating the rules of practice in the introduction of evidence, or otherwise, the fact that he does so will furnish no grounds of complaint to opposing counsel, where the error is corrected by the court; but in a case like that here presented, where counsel persistently pursues a line of interrogation which the court rules to be wrong, and which one reasonably well acquainted with the rules governing the admission of evidence must know to be improper, the conclusion is irresistible that it is done for the purpose of influencing and prejudicing the minds of the jury in arriving at a verdict. No court should countenance such conduct.'" To the same effect are Birmingham National Bank v. Bradley, 108 Ala. 205, 19 So. 791; Porter Coal Co. v. Davis, 231 Ala. 359(10), 165 So. 93; Alabama Coca-Cola Bottling Co. v. Stanfield, 234 Ala. 44, 173 So. 392. The principle has been settled for a long time in this State and apparently elsewhere.
The Court does not imply that the conduct of defendant's counsel on this occasion comes within the principle declared above. But counsel should be careful to avoid saying or doing anything which would lead the jury to believe that his opponent has insurance to protect him in respect to the matter in controversy, when it is not admissible for any proper purpose.
We cannot agree with counsel for appellant that the motion for a new trial should have been granted because the verdict was contrary to the great weight of the evidence, or that it manifested partiality or bias or other improper motive, or on other ground argued by counsel.
The judgment should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, except as indicated in the opinion. while serving on the Court at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and LAWSON STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
23a13472-5996-48f0-8d6f-b6f3ca87d859 | Madison Limestone Co. v. McDonald | 87 So. 2d 539 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 539 (1956)
MADISON LIMESTONE COMPANY, Inc., et al.
v.
W. E. McDONALD et al.
8 Div. 831.
Supreme Court of Alabama.
May 10, 1956.
*541 Carl A. Morring, Jr., Bell, Morring & Richardson, Huntsville, for appellants.
Watts & Salmon, Huntsville, for appellees.
PER CURIAM.
This is an appeal by respondents from an order granting a temporary injunction after notice and hearing as authorized by sections 1054 and 1057, Title 7, Code.
The bill alleges that on May 6, 1955 complainant W. E. McDonald paid $1,680 to the individual respondents as the consideration of an option to be exercised in thirty days, which they executed on that day, granting him, his heirs and assigns the right to purchase all the shares issued and outstanding on the books of the Madison Limestone Company at the price of $210 per share, of which $105 "shall be payable in cash upon the exercising of this option and the balance of said purchase price shall be and become payable in three (3) equal, annual installments. * * * The act of exercising, hereinabove mentioned, of this option shall be consummated by notice in writing to Lawson E. Jarrell, as president of Madison Limestone Co., Inc., and shall be accompanied by a tender of payment of the portion of the stipulated purchase price which is stipulated hereinabove to be paid in cash, said tender to be by either certified or cashier's check". The bill alleges that the capital stock was worth approximately $200,000.
Before this suit was begun W. E. McDonald transferred and assigned twenty-five percent of his interest in the agreement to Roy M. Niel and a like interest to S. R. Moore. The three are complainants. All of the shareholders together with the corporation are respondents.
The bill prays for a temporary injunction (which complainants designate a temporary restraining order) enjoining the corporation from declaring or paying dividends, transferring on its books shares of stock, issuing additional "capital stock," removing any of its machinery and equipment beyond the State, paying salaries and wages to respondents in greater amounts than they were receiving May 31, 1955, paying an alleged salary, bonus or gift to respondent Stella Rogers Jarrell (who, it is alleged, rendered no service to the corporation). It also sought a temporary injunction enjoining respondents, other than the corporation, from selling or transferring their capital stock or pledging it for personal loans or otherwise.
The final relief sought is a declaratory judgment and for specific performance by *542 the individual respondents, and general relief.
The bill alleges in paragraphs 5, 6, 7 and 8, as follows:
The question here, as stated above, is the review of an order for a temporary injunction. When so, the following principles control as stated in Slay v. Hess, 252 Ala. 455, 41 So. 2d 582, 584:
In acting on a bill seeking a temporary injunction, we must first see that it contains equity as then set up. McHan v. McMurry, 173 Ala. 182, 55 So. 793; Loop National Bank v. Cox, 255 Ala. 388, 51 So. 2d 534. In determining whether it has equity, shown on its face, its averments alone are to be considered, that is, "unaided by construction and unamplified by assumed amendment." McHan v. McMurry, supra [173 Ala. 182, 55 So. 794]; Dean v. Coosa County Lumber Co., 232 Ala. 177, 167 So. 566; Loop National Bank v. Cox, supra. When the bill contains equity, the trial judge, in granting a temporary injunction to preserve the status quo until the final hearing, exercises a wide discretion, taking into consideration the relative advantages and disadvantages resulting from granting or refusing to grant the injunction. Unless that discretion is abused it will not be disturbed on appeal. Slay v. Hess, supra; Loop National Bank v. Cox, supra.
A court of equity not only has jurisdiction to make a declaratory judgment when an actual justiciable controversy is shown to exist, but it also has jurisdiction for the specific performance of a contract to sell all the capital stock of a corporation. Boozer v. Blake, 245 Ala. 389, 17 So. 2d 152.
We are dealing with an option to begin with. It was to become a contract of purchase if and when it is accepted according to its terms; or when its acceptance, adding new conditions, shall be approved as thus tendered. Asbury v. Cochran, 243 Ala. 281, 9 So. 2d 887; Gadsden Bowling Center v. Frank, 249 Ala. 435(3), 31 So. 2d 648, 172 A.L.R. 1430. Acceptance may be accomplished by filing a bill in equity within the time specified, in which the terms of the opinion are met and complied with. Asbury v. Cochran, supra (headnote 4).
Since the bill was not filed within thirty days after the option was executed it must show that the right to a performance accrued before the bill was filed and within the specified time, and this must be apparent upon the face of the bill to support a decree for specific performance.
We now revert to the question of the equity of the bill. It not only seeks a declaration settling the effect of the option and whether it became a contract to purchase, but it also seeks the supplemental relief of specific performance. This is available. Dozier v. Troy Drive In Theatres, 258 Ala. 417, 63 So. 2d 368. The bill should be sufficient to obtain the relief of specific performance to support the right to a temporary injunction. It is true that the supplemental relief may be legal as well as equitable, Wolff v. Woodruff, 258 Ala. 1, 61 So. 2d 69, but when the supplemental relief is equitable the conditions which justify it should be alleged. The injunction here is in aid of a claim of specific performance as supplemental relief.
If complainants do not show a right to purchase the stock of the corporation and have it assigned to them, enforceable in equity, the court will not issue an injunction to preserve the status. We must therefore see if the facts alleged in the bill show that complainants have become executory purchasers of the property by accepting the option under the agreement. As we have stated, the allegations must show that status as a conclusion of law, unaided by possible amendments. Paragraph 5 of the bill, quoted above, alleges that complainants were prevented by respondents from paying the balance of the purchase price provided for in said option agreement. (That is $105 per share *544 less $1,680 earnest money.) That is not good pleading, in that it expresses a conclusion without sufficient supporting facts and would make that aspect subject to demurrer on grounds specifically assigned. Equity Rule 14, Code 1940, Tit. 7 Appendix. But notwithstanding such defect of pleading, the bill has equity in that aspect. If complainants were prevented by respondents from paying or making a tender required by the option, exactly as there stipulated, they would be excused from doing so and could for that reason become executory purchasers under the option agreement without such specific tender. The notice of an election to exercise the option is alleged to have been made within thirty days from its date, on to wit, May 31, 1955.
As we have shown, the bill alleges that complainants are ready, able, willing and anxious to complete the purchase, pay the purchase price and do equity. The money is not brought into court. But that is not necessary when acceptance of the option was completed before the bill was filed, and the relation of vendor and purchaser created. Ashurst v. Peck, 101 Ala. 499, 14 So. 541; Mitchell v. Walker, 235 Ala. 458, 179 So. 633; Boozer v. Blake, supra.
It is conceded, of course, that the acceptance of an option must be substantially as required by its terms and all conditions complied with. Asbury v. Cochran, supra. If a tender at the time of notice of acceptance is set up as a condition to its acceptance, the tender is necessary to make the acceptance complete unless there is a valid excuse for not doing so.
The bill here has equity for a specific performance, whether in that aspect it be subject to demurrer for not properly pleading it. It expresses conclusions which, if true, support its equity. The prayer for a temporary injunction was heard on the sworn bill offered by complainants and the testimony of respondents' witnesses examined before the trial judge. As we have shown, the trial judge has a wide discretion in granting such a writ and will be reversed only if such discretion is exercised arbitrarily or is abused.
The assignments of error in the main are not predicated on a ruling of the court. It is essential that they should be. Central of Georgia Ry. Co. v. McDaniel, 262 Ala. 227, 78 So. 2d 290; Kinnon v. Louisville & Nashville, R. Co., 187 Ala. 480, 65 So. 397; Freeman v. Blount, 172 Ala. 655, 55 So. 293; Life & Casualty Ins. Co. v. Womack, 26 Ala.App. 6, 151 So. 881, certiorari denied 228 Ala. 70, 151 So. 880.
Assignment of error No. 10 is based on a ruling which needs no discussion.
Assignments 11, 12 and 13 merely assign various reasons why the order granting the injunction was erroneous. The other assignments are in no sense appropriate.
The office of an assignment of error is not to point out legal contentions, but only to inform this Court that appellants assign as erroneous certain named rulings. Kinnon v. Louisville & Nashville R. Co., supra.
We shall treat assignments 11, 12 and 13 as sufficient to review the order of the court granting a temporary injunction, although they are not properly expressed.
The option agreement is signed by twelve members of the Jarrell family and it is to sell all the shares of stock of the corporation referred to. They are all made respondents. The Madison Limestone Company was incorporated in 1954 under the laws of Alabama. John K. Jarrell, one of the stockholders, is alleged to be a minor and resides in Tennessee, where some other members of the family reside. James G. Jarrell personally signed the option agreement and also signed it followed by the words "(guardian for John K. Jarrell)". The evidence shows that the guardian was appointed in Tennessee. There is no evidence of the authority of the guardian to sign the agreement by the laws of Tennessee or Alabama or a court of either *545 state. The evidence shows that afterwards a petition was filed by the minor in the probate court of Tennessee to approve the sale, and that it was denied.
This is a joint appeal by all the respondents, including the minor (John K. Jarrell), who jointly assign errors with no order of severance. We will consider only those questions applicable to all of them jointly. Voltz v. Childers, 253 Ala. 369, 44 So. 2d 604. Therefore, we cannot consider the effect of the option on John K. Jarrell, the minor. We observe that his rights and status are dependent upon principles which we need not discuss and will not do so now, nor what effect they may have upon the manner of accepting the option by complainants.
All the adult Jarrells signed the option in question, which is to buy all the shares of stock of the corporation issued and outstanding. It does not purport to be an agreement by each separately as to the shares he separately may own. It matters not under the option who owns the shares, respectively, or whether they are jointly owned. If the option cannot be effectuated exactly as set up because all the shares cannot be conveyed on account of the minority of John K. Jarrell, there may nevertheless be specific performance, but controlled by principles which equity has applied. We will merely refer to some of the cases. Minge v. Green, 176 Ala. 343, (5, 6 and 7), 58 So. 381; McCreary v. Stallworth, 212 Ala. 238, 102 So. 52; Mitchell v. White, 244 Ala. 603(6), 14 So. 2d 687; Deason v. Dobson, 250 Ala. 396 (5 and 6), 34 So. 2d 596; McKenzie v. Sutton, 250 Ala. 447, 34 So. 2d 825; Golden v. Golden, 256 Ala. 187(10), 54 So. 2d 460. See 49 Am.Jur. 119, section 102.
This suggests the existence of controversies which demonstrate the importance of maintaining the integrity and relative status of the property involved until there is a final hearing.
It results from the foregoing that the decree of the trial court should be affirmed.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and SPANN, JJ., concur. | May 10, 1956 |
1e35ea3a-2193-46c9-81c5-aee1bcd1e239 | Moore v. Cooke | 84 So. 2d 748 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 748 (1956)
W. R. MOORE
v.
R. C. COOKE.
6 Div. 781.
Supreme Court of Alabama.
January 19, 1956.
*749 Robert D. Norman, Birmingham, for appellant.
Bainbridge & Mims, Birmingham, for appellee.
LAWSON, Justice.
This is an action in damages for property damage and for personal injuries arising out of a collision between an automobile owned and driven by defendant and an automobile owned by plaintiff in which he was riding, but which was being driven by his daughter.
The collision occurred on the Rocky Ridge Road in Jefferson County, which road runs generally east and west.
The case was tried on Count 1 for simple negligence, Count 2 for wanton injury, and the plea of the general issue in short by consent in the usual form.
There was jury verdict for plaintiff, Cooke, in the amount of $6,365. Judgment followed the verdict. The defendant's motion for new trial was overruled and denied after plaintiff filed a remittitur of $1,365 and after the original judgment was reduced to $5,000. The defendant, Moore, has appealed to this court.
In brief filed here on behalf of appellee, plaintiff below, it is suggested that the appeal may be subject to dismissal by this court of its own motion for the reason that the questions for decision have become moot because of the payment of the judgment by the defendant's insurance carrier.
The general rule is that an appeal is subject to dismissal if, pending the appeal, *750 an event occurs which makes a determination of the appeal unnecessary or renders it clearly impossible for the appellate court to grant effectual relief. Williams v. Wert, 259 Ala. 557, 67 So. 2d 830; Shelton v. Shelton, 248 Ala. 48, 26 So. 2d 553; Gaines v. Malone, 242 Ala. 595, 7 So. 2d 263; Coleman v. Mange, 238 Ala. 141, 189 So. 749.
We have said that when it is apparent from the record before us that the questions presented have become moot (or the appeal abandoned), this court will dismiss the appeal ex mero motu. Francis v. Scott, 260 Ala. 590, 72 So. 2d 93. However, the rule has long obtained in this state that the mere payment of a judgment by a judgment debtor does not work a waiver of the right of appeal. First Nat. Bank of Birmingham v. Garrison, 235 Ala. 94, 177 So. 631, and cases cited. See Freeman on Judgments, 5th Ed., § 1165, p. 2410. We think that principle has application here, for if it can be said that the record before us sufficiently shows a payment of the judgment from which this appeal is taken, it is conceded that such payment was made by the insurance carrier on the defendant's behalf.
The plaintiff's car was traveling west, the defendant's was going east. The weather was dry and visibility was excellent; the time was between five and six o'clock on the afternoon of Saturday, September 6, 1952. The collision occurred at a point 300 to 350 feet east of a bridge which is situate at the bottom of two hills and on a curve. The defendant's car had crossed the bridge at the time of the collision.
The evidence is clear, in fact it is without dispute, that at the time of the impact the plaintiff's automobile was partly on the northern shoulder of the road and that the defendant's car had left the southern lane and had crossed into the northern lane in which plaintiff's car had been proceeding in a westerly direction.
The testimony of the plaintiff and that of his daughter is to the effect that just prior to the collision the defendant's automobile was traveling at a speed of seventy to eighty miles an hour and that their car was moving at a speed not in excess of thirty-five miles.
The defendant and his wife both testified, but their testimony is not in conflict in many respects with the testimony offered on behalf of the plaintiff. In fact, Mrs. Moore's testimony sheds no light whatever on the question as to how the collision occurred. She and the defendant both testified she was asleep at the time of the accident and had been asleep for thirty minutes prior thereto.
The defendant testified that he and his wife were returning to their home in Birmingham in a new automobile from a visit to his mother in Montgomery when the collision occurred; that from the time he left Montgomery until he reached a point approximately 500 feet west of the place where the collision occurred, he tried to keep the speed of his car between thirty and forty miles an hour, but he might have exceeded that limit "a little bit"; that when he reached a point approximately 500 feet west of the point of collision he "began to feel numb and stiff like, and choking"; that he couldn't speak and couldn't raise his foot off the accelerator at the time of the seizure; that within a few seconds after the seizure he became unconscious and remembers nothing about the accident; that he has no recollection of driving his car across the bridge, around the curve, and into the automobile belonging to plaintiff.
The appellant offered no testimony, medical or otherwise, in support of his statement that he became unconscious in the manner and at the time indicated above. But based on his testimony alone to that effect the appellant insists that he was entitled to the affirmative charges with hypothesis as to both counts, which charges he duly requested in writing.
Appellant has cited cases from other jurisdictions wherein it has been held that a driver of an automobile is not liable for injuries sustained in a collision which resulted solely from the fact that the driver *751 fainted or became unconscious from an unforeseen cause immediately before the collision.
The case at bar is distinguishable from authorities such as Cohen v. Petty, 62 App.D.C. 187, 65 F.2d 820; Armstrong v. Cook, 250 Mich. 180, 229 N.W. 433; and Weldon Tool Co. v. Kelley, 81 Ohio App. 427, 76 N.E.2d 629, cited by the appellant, where the evidence of the driver's sudden unconsciousness was uncontradicted or would support no other reasonable inference.
The plaintiff below, appellee here, testified: "Shortly before the impact I saw him [defendant] straighten up, stiffen himself suddenly as a person applying the brakes, and seemed to be fighting the wheel trying to regain control of his car." And the testimony of an investigating officer is in substance that appellant's car traveled forty-two feet with a full application of its brakes immediately before it collided with appellee's car. As before indicated, from the point where appellant says he first lost consciousness his automobile proceeded in the proper lane down a hill, across a bridge situate on a curve to the right, and had proceeded a number of feet up another hill before it crossed into appellee's lane of travel and crashed into his automobile. The pictures of the locus in quo, introduced in evidence and certified here for our inspection, show that the curve was not as slight as appellant contends and as appellee at one place in his testimony described it.
In dealing with the affirmative charges refused the defendant, we must look to the strongest tendencies of the evidence for plaintiff. Godfrey v. Vinson, 215 Ala. 166, 110 So. 13; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So. 2d 164. And when the evidence before us is so viewed, we are clear to the conclusion that the question as to whether the appellant lost consciousness prior to the collision, as he claimed, was for the jury's determination. Lagasse v. Laporte, 95 N.H. 92, 58 A.2d 312; Driver v. Brooks, 176 Va. 317, 10 S.E.2d 887; Waters v. Pacific Coast Dairy, Inc., 55 Cal. App. 2d 789, 131 P.2d 588; Meyers v. Tri-State Automobile Co., 121 Minn. 68, 140 N.W. 184, 44 L.R.A.,N.S., 113; Holmes v. McNeil, 356 Mo. 846, 204 S.W.2d 303.
In view of the testimony offered on behalf of the appellee concerning the rate of speed at which the appellant was driving his car at the time of the collision, the exact condition of the roadway at the place of the accident was a matter of considerable importance in connection with the charge of wantonness, for the evidence showed that the appellant was familiar with the road and knew that it was heavily traveled during the late afternoon hours, the time of the collision. A diagram drawn on a blackboard showing the locus in quo was used in the examination of witnesses. It was admitted in evidence by agreement and presumably was before the jury; in fact, the trial court stated to the jury in its oral charge: "Gentlemen of the jury, by agreement the blackboard is in evidence and will be available to the jury." The diagram drawn on the blackboard is not before us. Under these circumstances this court cannot review the action of the trial court in declining to give the affirmative charge requested by the defendant in regard to the wanton count. Alabama Terminal R. Co. v. Benns, 189 Ala. 590, 66 So. 589; Godfrey v. Vinson, supra; Alabama Power Co. v. Jackson, 232 Ala. 42, 166 So. 692. See Mobile City Lines v. Alexander, 249 Ala. 107, 30 So. 2d 4.
The trial court in its oral charge instructed the jury as to the issues involved, saying in substance that the defendant interposed two defenses, the general issue and contributory negligence as to the simple negligence count. No reference was made in the oral charge to the testimony adduced by the defendant going to show that he lost consciousness prior to the collision, nor was the jury informed that the defendant relied on such a defense or of what such a defense consisted. But that failure or omission does not constitute reversible error. Perez v. Still, 219 Ala. 340, 122 So. 354; Sovereign Camp, W. O. W. v. Screws, 218 Ala. 599, 119 So. 644; City of *752 Montgomery v. Ferguson, 207 Ala. 430, 93 So. 4. The remedy in such a situation is to request appropriate written instructions.
The defendant did request several written instructions designed to cover, according to his brief filed here, "the proposition that sudden loss of consciousness, while driving an automobile, by virtue of an unforeseen cause, is a complete defense to a charge of negligence or wantonness." All of such charges were refused and the refusal of several of them the defendant contends constitutes reversible error.
Charges 30 and 33 merely assert abstract propositions and even if it be said that such propositions are correct the charges were refused without error, for we have said that: "A charge which merely states an abstract proposition of law without instructing the jury its effect upon the issues in the case on the trial may be refused without error." Francis v. Imperial Sanitary Laundry & Dry Cleaning Co., 241 Ala. 327, 2 So. 2d 388, 391. To like effect see Fleetwood v. Pacific Mut. Life Ins. Co., 246 Ala. 571, 21 So. 2d 696, 159 A.L.R. 171; Ridgely Operating Co. v. White, 227 Ala. 459, 150 So. 693; Johnson v. Louisville & N. R. Co., 220 Ala. 649, 127 So. 216.
Charges 43, 44, 47 and 48 were refused without error for the reason, if for no other, that each of them omits any reference to proximate cause. Under these charges the defendant would be exonerated although he did not lose consciousness until after he had acted so negligently or wantonly, as the case may be, as to have proximately caused the collision.
We have heretofore held that the wanton count was supported by the evidence, hence the trial court properly refused Charge 28, which ignores the wanton count. Buchanan v. Vaughn, 260 Ala. 482, 71 So. 2d 56; Sims v. Birmingham Electric Co., 238 Ala. 83, 189 So. 547. Cf. Tyler v. Drennen, 255 Ala. 377, 51 So. 2d 516.
As shown above, the trial court on motion for a new trial, because the verdict was excessive, reduced the amount of the judgment to $5,000. The appellant is not satisfied with the extent to which the original judgment was reduced. Whether we should still reduce it involves a review of the trial court's judgment based upon his observation of plaintiff, who testified in the case, as well as that of all the witnesses and other incidents of the trial which cannot be reflected in a transcript. The plaintiff sought damages not only for bodily injury and for property damage to his automobile, but for the physical pain which he suffered as a result of the collision, and under the wanton count the jury could award punitive damages. We are not willing to set aside the trial court's judgment in this regard. Luquire Funeral Homes Ins. Co. v. Turner, 235 Ala. 305, 178 So. 536.
We conclude, therefore, to affirm the judgment.
Affirmed.
LIVINGSTON, C. J., and STAKELY and MAYFIELD, JJ., concur. | January 19, 1956 |
f48e45fb-9c66-4e60-9fb2-25542743617b | Mobile City Lines v. Hardy | 86 So. 2d 393 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 393 (1956)
MOBILE CITY LINES, Inc.
v.
Edward L. HARDY, as Administrator.
1 Div. 638.
Supreme Court of Alabama.
March 22, 1956.
Rehearing Denied April 12, 1956.
Johnston, McCall & Johnston, Mobile, for appellant.
Chas. Hoffman, Mobile, for appellee.
LAWSON, Justice.
This suit was brought by Edward L. Hardy, as administrator, under the homicide statute, § 123, Title 7, Code 1940, against Mobile City Lines, Inc., to recover damages for the alleged unlawful death of his son, James Wendell Hardy.
Plaintiff's son lost his life as a result of a collision between a motorcycle upon which he was riding and a bus belonging to the defendant, which was being driven by its agent, Thomas Sawyer.
The case was submitted to the jury on one count charging simple negligence and on the plea of the general issue and four pleas of contributory negligence. There was verdict for the plaintiff in the sum of $15,000. Judgment was in accord with the verdict. Defendant's motion for new *394 trial was overruled and it has appealed to this court.
Reversible error is not made to appear in connection with the trial court's action in overruling defendant's objection to the following question asked defense witness Sawyer on cross-examination: "You say the boy had the right of way and you didn't give it to him." The ground of objection was: "He is not to decide who has the right of way." The question called for testimony which had been previously given by the same witness without objection, so even if it be conceded that the objection interposed was well taken, the court's action thereon cannot work a reversal for the rule is that prejudicial error may not be predicated upon admission of evidence previously elicited without objection. Baker v. Shoemaker, 201 Ala. 443, 78 So. 826; Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 633.
It is insisted that the trial court erred in refusing to give the general affirmative charge with hypothesis requested in writing by the defendant. In considering that question, we must review the tendencies of the evidence most favorable to the plaintiff, regardless of any view we may have as to the weight of the evidence, and must allow such reasonable inferences as the jury was free to draw, not inferences we may think the more probable. Martin v. Anniston Foundry Co., 259 Ala. 633, 68 So. 2d 323; Southern Ry. Co. v. Sanford, 262 Ala. 5, 76 So. 2d 164.
On the morning of December 31, 1953, at about 9 o'clock, the plaintiff's intestate was riding his motorcycle southwardly on Ann Street in the city of Mobile. The defendant's bus was travelling east on Texas Street. The motorcycle and the bus collided in the intersection.
Stop signs were located on Texas Streets at its intersection with Ann Street at the time of the accident. Presumptively the stop signs were properly and authoritatively so placed. Mobile City Lines v. Orr, 253 Ala. 528, 45 So. 2d 766. Accordingly Ann Street was a "through highway." Subsecs. (12) and (48), § 1, Title 36, Code 1940, as amended. Since Ann Street was a "through highway" the movement of defendant's bus on Texas Street as it approached Ann Street was governed by the following provisions of § 19, Title 36, Code 1940, as amended:
It is without dispute in the evidence that the driver of the defendant's bus did bring the vehicle to a stop before entering the intersection and according to the bus driver, Sawyer, after he stopped the bus he looked in both directions and seeing no traffic on Ann Street, he drove the bus slowly into the intersection. Sawyer testified that the motorcycle was traveling at a terrific rate of speed when he first saw it approximately 20 feet north of the point of impact. In substance the defendant's theory of the collision is that at the time the bus proceeded into the intersection the motorcycle was so far north on Ann Street that Sawyer could not see it and that because of its great speed and the slowness of the bus the two vehicles met almost in the center of the intersection.
But there is evidence for the plaintiff tending to show that the motorcycle was traveling at a speed of approximately 30 miles an hour when it was 100 feet north of the intersection and that the speed had been reduced to approximately 20 miles an hour at the time of impact as a result of a full application of brakes. Evidence for the plaintiff tends to show that the two vehicles entered the intersection at approximately *395 the same time. Photographs and a drawing of the locus in quo introduced in evidence clearly show that there was no building or other object which could have obstructed the bus driver's view of traffic moving southwardly on Ann Street for a distance of several hundred feet.
The fact that the horn on the motorcycle was blown and brakes applied before the motorcycle entered the intersection does not show as a matter of law that the bus had already entered the intersection.
As pointed out above, the evidence shows that the motorcycle was traveling at a speed of approximately 30 miles an hour when it was about 100 feet north of the intersection. The speed limit in a residence district such as where this collision occurred is fixed by statute at 25 miles an hour unless a different speed limit is fixed by local authorities and the record before us fails to show a local ordinance on the subject. § 5, Title 36, Code 1940. But the rule of our cases construing the section just mentioned is that whether a certain speed is unlawful or not depends upon the conditions existing, so that the speed shall not be dangerous or unsafe. Ditsch v. Baggett Transp. Co., 258 Ala. 26, 61 So. 2d 98, and cases cited.
We have given careful consideration to the briefs which have been filed and to the oral argument made at time of submission and we are clear to the conclusion that under the evidence in the record before us the question as to whether the plaintiff was guilty of contributory negligence which proximately contributed to the collision or whether the collision was due solely to the negligence of defendant's bus driver were questions for the jury, the triers of the facts.
Verdicts are presumed to be correct and no ground of new trial is more carefully scrutinized or more rigidly limited than that the verdict is against the weight of the evidence. Cobb v. Malone, 92 Ala. 630, 9 So. 738. It is recognized by this court that when the presiding judge refuses, as here, to grant a new trial, the presumption in favor of the correctness of the verdict is strengthened. Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799; Southern R. Co. v. Kirsch, 150 Ala. 659, 43 So. 796; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Crescent Amusement Co. v. Knight, 263 Ala. 445, 82 So. 2d 919; Tucker v. Thompson, 263 Ala. 516, 83 So. 2d 238. After allowing all reasonable presumptions in favor of the correctness of the verdict, we cannot say that the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust. Cobb v. Malone, supra; Johnston v. Weissinger, 225 Ala. 425, 143 So. 464. We hold, therefore, that the trial court did not err in overruling those grounds of the motion for new trial taking the point that the verdict was contrary to the great weight of the evidence.
We have considered the assignments of error which have been argued in brief and having concluded that reversible error is not shown therein, the judgment of the trial court is due to be affirmed.
It is so ordered.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MERRILL, JJ., concur. | March 22, 1956 |
5fada149-1239-40bb-a700-ba5474a2a6ce | Peacock v. Peacock | 87 So. 2d 626 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 626 (1956)
Lillie Pearl PEACOCK
v.
M. W. PEACOCK.
4 Div. 871.
Supreme Court of Alabama.
May 24, 1956.
*627 Joe Cassady, Enterprise, for appellant.
J. Hubert Farmer, Dothan, for appellee.
PER CURIAM.
This is an appeal by cross complainant from a decree sustaining a demurrer to the cross bill. That ruling of the court is the only error assigned.
The suit was begun by a bill on the equity side of the Circuit Court of Coffee County by appellee against appellant, seeking to have annulled a marriage entered into between the parties on September 17, 1954 in Coffee County, Alabama. The bill alleges that at that time appellant was insane, which fact was unknown to complainant (appellee); and that she is now confined to the Florida insane hospital at Chattahoochee, alleging that she was insane and committed by a Florida court.
The bill is sufficient to invoke the power of the court to annul the marriage as being void on account of the alleged insanity of appellant. Henley v. Foster, 220 Ala. 420, 125 So. 662. It has been held in this State that a court of equity has jurisdiction to decree that a marriage is null and void if it was celebrated in this State, although both parties are at present residents of another state. Jordan v. Courtney, 248 Ala. 390, 27 So. 2d 783. We note that this Court has held that the state of residence of the parties also has jurisdiction although the marriage was celebrated in another state. Gwin v. Gwin, 219 Ala. 552, 122 So. 648; Hamlet v. Hamlet, 242 Ala. 70, 4 So. 2d 901. The foregoing principles are not questioned here, and are repeated only to show that *628 in this suit the court of equity is not without jurisdiction invoked by the original bill.
The cross bill is in two aspects: (1) to obtain a reasonable allowance for the support of respondent pending the suit, and (2) on final hearing to obtain permanent alimony.
The answer, apart from the cross bill, admitted the marriage as alleged, but denied respondent's insanity at the time. It alleged that complainant caused her to be committed to the insane hospital in Florida, and that she was not then insane.
The demurrer is to the cross bill as a whole. The ground of demurrer which the trial judge thought was good is that the cross bill was not germane to the original bill.
Equity Rule 26, as amended December 17, 1954, permits a cross bill by a respondent against complainant (and others specified) to obtain relief connected with or growing out of the bill.
It is generally held that in an action instituted by a husband against his wife for the annulment of marriage alleged by him to be invalid, if the existence of the marital relation is in actual dispute and clear proof is not made of its invalidity, the wife may be allowed alimony pendente lite, counsel fees and suit money. 4 A.L.R. 927, annotation; 17 Am.Jur. 436, section 541; 110 A.L.R. 1284, annotation; Ex parte Jones, 172 Ala. 186, 55 So. 491; Ex parte McLendon, 239 Ala. 564, 195 So. 733; Courtney v. Courtney, 108 Fla. 276, 146 So. 229.
The right to suit money and temporary support will be determined on a hearing of the application for it, based on the principle stated above. It is immaterial whether the claim for temporary alimony and suit money is brought to the attention of the court by a petition for that purpose, 27 C.J.S., Divorce, § 243a, p. 1001, or by a cross bill. We believe that the most usual practice is by a cross bill (when not by an original bill). It is certainly "connected with or growing out of the bill." Equity Rule 26, supra. Cf. Carter v. Carter, 248 Ala. 251, 27 So. 2d 201; Bickley v. Bickley, 136 Ala. 548, 34 So. 946.
The cross bill invokes the equity jurisdiction of the court, and an allowance there sought may be awarded if the parties entered into a ceremonial marriage, which they both admit, and if the evidence presented on hearing the application shows that there is an actual dispute as to the validity of the marriage and "clear proof is not made of its invalidity". We pause to observe that such allowance is not dependent upon section 30, Title 34, or other provisions of the Code. Ex parte Smith, 34 Ala. 455.
We think the cross bill shows a right to maintenance and support pending this suit and an attorney's fee. Of course, the facts proven on hearing the application must be sufficient as alleged. Having equity in that aspect, the demurrer to the cross bill as a whole should have been overruled.
But whether the cross bill shows a right to "permanent support" on final hearing is a different question. The cross bill does not seek a divorce. If complainant is successful in having the marriage annulled on final hearing there would be no duty shown to support respondent. If he is unsuccessful in having the marriage annulled, the wife upon application might obtain separate maintenance without seeking a divorce (either a vinculo matrimonii or a mensa et thoro), but she cannot obtain permanent alimony without a divorce. Ex parte Tucker, 254 Ala. 222, 48 So. 2d 24; Norrell v. Norrell, 241 Ala. 170, 1 So. 2d 654.
The pleading here presented does not show a right to permanent alimony on final hearing. Therefore, that aspect of the cross bill is without equitable standing, but there was no demurrer addressed to it. The cross bill has standing for support and maintenance pendente lite and suit money as sought in one aspect. Therefore, the demurrer to it as a whole should have been overruled.
*629 The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, § 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | May 24, 1956 |
0db78494-ca2a-447b-85a0-9695778ced65 | Wheeler v. Bullington | 87 So. 2d 27 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 27 (1956)
W. Raymond WHEELER
v.
Frank BULLINGTON.
8 Div. 839.
Supreme Court of Alabama.
April 12, 1956.
Calvin M. Whitsell, Montgomery, for appellant.
Rankin Fite, Hamilton, and Fite & Wilson, Jasper, for appellee.
GOODWYN, Justice.
On August 3, 1955, appellee, as a resident citizen and taxpayer of Colbert County, filed in the circuit court of Colbert County, in equity, a bill for declaratory judgment seeking a decree holding Act No. 174, p. 440, approved July 29, 1955, to be void, invalid and unconstitutional. (This Act has for its purpose the abolishment of the office of county commissioner of public schools in Colbert County and, in place thereof, the establishment of the office of county superintendent of education. The Act calls for a referendum election in Colbert County to determine whether its provisions shall become effective; such election to be held "on the second Tuesday after the expiration of thirty days from the date of this enactment". The Act was approved on July 29, 1955. Acts 1955, pp. 440-443.) The bill was filed against the judge of probate, sheriff (appellant here), clerk of the circuit court, and the judge of the law and equity court of Colbert County. Decrees pro confesso were taken against the respondents. Thereupon, on September 9, 1955, a final decree was rendered declaring Act No. 174 to be void, invalid and unconstitutional. In the decree it was stated that the Act was approved on the 29th day of June, 1955. On September 10, 1955, the decree was amended to show the correct month of approval as July instead of June. On September 12, 1955, the appellant filed a motion to set aside the final decree as last amended on the ground, among others, that the decree was void because the Attorney General of the State was not "served with a copy of the proceeding" and given an opportunity to be heard, as required by Code 1940, Tit. 7, § 166. On September 19, 1955, a decree was rendered overruling and denying said motion. Such decree in no way modified the original decree as amended. On September 23, 1955, appellant took an appeal "from *28 the order or decree of the Circuit Court rendered on September 19, 1955, denying and overruling the motion of respondent W. Raymond Wheeler, to set aside and hold for naught that certain decree entered in the above styled cause by the Circuit Court on the 9th day of September, 1955."
Submission of the cause was had here on January 18, 1956, on appellee's motion to dismiss the appeal and on the merits.
With respect to the motion to dismiss the appeal, it is insisted by appellee that the decree appealed from will not support an appeal to this court. The argument is that the motion to set aside the final decree was nothing more than an application for rehearing and that an appeal will not lie from the decree overruling said application since it did not modify the decree sought to be set aside, citing in support Equity Rule 62, Code 1940, Tit. 7, Appendix. If the motion to set aside the decree is an application for rehearing within the influence of Equity Rule 62, then there is merit in appellee's insistence. Wood, Wire & Metal Lathers International, Local No. 216 v. Brown & Root, Inc., 258 Ala. 430, 432, 63 So. 2d 372; Whitman v. Whitman, 253 Ala. 643, 645, 46 So. 2d 422; Valenzuela v. Sellers, 253 Ala. 142, 145, 43 So. 2d 121; Rudolph v. Rudolph, 251 Ala. 317, 318, 36 So. 2d 902; Brown v. Lee, 242 Ala. 159, 161, 5 So. 2d 620; Robertson v. Council, 238 Ala. 432, 435, 191 So. 257; Money v. Galloway, 236 Ala. 55, 56, 181 So. 252; Commercial Credit Co. v. State, 224 Ala. 123, 125, 139 So. 271; Ford v. Ford, 218 Ala. 15, 16, 117 So. 462; Ex parte Upchurch, 215 Ala. 610, 611, 112 So. 202. But our view is that the motion, and the action taken thereon by the trial court, are not controlled by Equity Rule 62 for the reasons which we now discuss.
It is stated in Capps v. Norden, 261 Ala. 676, 680, 75 So. 2d 915, 918, as follows:
Additional authorities supporting the right of appeal from a decree overruling a motion to vacate a decree void on the face of the record are Robinson Co. v. Beck, 261 Ala. 531, 533, 74 So. 2d 915; Ford v. Ford. 218 Ala. 15, 16, 117 So. 462, supra; and Sweeney v. Tritsch, 151 Ala. 242, 245, 44 So. 184.
In Ford v. Ford, supra [218 Ala. 15, 117 So. 463], an appeal was taken by respondent from an order or decree overruling her motion to set aside a final decree in favor of complainant in a suit for divorce. While the court held that the ruling on the motion would not support an appeal, it seems clear that such holding was based on the conclusion that the decree of divorce was not void on the face of the record. As there stated:
*29 The decisive question, then, is whether the decree sought to be vacated is void on the face of the record. If so, the case is properly here on appeal from the decree denying the motion to vacate.
As already indicated, this is a proceeding under the Declaratory Judgments Act, Code 1940, Tit. 7, §§ 156-168, as amended, which involves the validity of a statute, Act No. 174, supra, it being alleged in the bill that said statute is unconstitutional. Applicable in this situation is § 166, Tit. 7, supra, which provides as follows:
This section is identical with Sect. 11 of the Uniform Declaratory Judgments Act, 9 U.L.A.
It does not appear from the record that the Attorney General was served with a copy of the proceeding; nor does it appear from the record that he had notice of the proceeding or participated in it in any way. Accordingly, it is our view that jurisdiction of the trial court was not invoked and that the decree declaring Act No. 174 to be unconstitutional is void. It follows that the case is properly here on appeal from the decree of September 19, 1955, and that appellee's motion to dismiss the appeal must be denied.
We have not been referred to any Alabama case dealing with the requirements of Sect. 166, supra, that "if the statute * * * is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard"; nor have we found any. However, the effect of this provision has been dealt with in a number of other jurisdictions, and it appears to be universally held that compliance with this provision is mandatory and goes to the jurisdiction of the court. But as to what constitutes compliance and the extent to which the attorney general may or should participate, the cases are divided.
In the case now before us we need only decide at this time whether the requirement of service on the attorney general is mandatory and jurisdictional, and we limit our decision to that question. Among the cases holding that service on the attorney general is mandatory and jurisdictional are the following: Cummings v. Shipp, 156 Tenn. 595, 3 S.W.2d 1062, 1063; Cummings v. Beeler, 189 Tenn. 151, 223 S.W.2d 913, 916-917; Day v. Ostergard, 146 Pa.Super. 27, 21 A.2d 586, 588; Ethington v. Wright, 66 Ariz. 382, 189 P.2d 209, 213; Watson v. Claughton, 160 Fla. 217, 34 So. 2d 243, 246-247; Pressman v. State Tax Commission, 204 Md. 78, 102 A.2d 821, 826; City Manager of Medford v. Civil Service Commission, 329 Mass. 323, 108 N.E.2d 526, 530; Lowell v. City of Boston, 322 Mass. 709, 740-741, 79 N.E.2d 713, 731; Roehl v. Public Utility Dist. No. 1 of Chelan County, 43 Wash. 2d 214, 261 P.2d 92, 108; Parr v. City of Seattle, 197 Wash. 53, 84 P.2d 375, 377; Lee v. Clark, 224 S.C. 138, 77 S.E.2d 485, 487-488; Wichita County v. Robinson, Tex., 276 S.W.2d 509, 511-512; Land Clearance for Redevelopment Authority of City of St. Louis v. City of St. Louis, Mo., 270 S.W.2d 58, 63; Johnston v. Board of Adjustment and Town Council of Westfield, 190 A. 782, 783, 15 N.J.Misc. 283; Jefferson County Fiscal Court v. Trager, 300 Ky. 606, 189 S.W.2d 955; Liberty Mutual Ins. Co. v. Jones, 344 Mo. 932, 130 S.W.2d 945, 125 A.L.R. 1149, 1161. See, also, Borchard, Declaratory Judgments, 2d Ed., p. 275.
From what we have said it follows that the action of the trial court in denying the *30 motion to set aside the decree is due to be reversed. Judgment will be rendered here granting said motion and remanding the cause to the trial court for such further proceedings as the parties may be advised.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON, SIMPSON and MERRILL, JJ., concur. | April 12, 1956 |
bc0edce0-d5dc-4f95-90e1-53b22c0d8596 | Salter v. Cobb | 88 So. 2d 845 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 845 (1956)
J. M. SALTER et al.
v.
Eva Mae COBB.
6 Div. 937.
Supreme Court of Alabama.
May 10, 1956.
Rehearing Denied July 26, 1956.
*847 McEniry, McEniry & McEniry, Bessemer, for appellants.
Barber & Barber, Birmingham, for appellee.
SIMPSON, Justice.
This is a case of a boundary line dispute between coterminous landowners. The issues appear to be twofold, viz.: 1. The beginning point of appellee's western boundary was described in the deed to be 919.5 feet west of the S.E. corner of N.W. ¼ of N.W. ¼ Section 18, Township 17, Range 5W.; the court fixed the boundary at a point 1,027.3 feet west of said S.E. corner. This controversy affects the ownership of a strip of land 108.7 feet west of the line called for in the deed whereby appellee acquired title. (Appellant's property is west and north of appellee.) 2. The northern and northwestern boundaries between appellee's and appellant's land.
A map is subjoined for a better understanding of the case.
*848 At the outset appellant contends that the trial court erred in failing to establish appellee's western boundary. In this we cannot concur. The court, in its decree, found that the line as set forth and described by the appellee was the true boundary line. And while it is true that the trial court in describing the boundary line defined the "beginning of the dividing lines" between appellee and appellant at a point 367 feet north of the court's described S.W. beginning point of appellant's property and on the western boundary, it was necessary in order to so find that the court first determine said S.W. corner of appellant's lot and then follow this western boundary line to the point where the court established the "beginning of the dividing lines." The decree in locating the decribed beginning point specifically followed a western line located at a distance of 1,027.3 feet west of the southeast corner (of the quarter section) instead of the 919.5 feet as called for in the deed. We conclude, therefore, that the trial court did in fact ascertain appellee's western boundary; the decree, for clarity, should be, nonetheless, modified to the extent of setting the "beginning" point of the boundary line between appellee and appellant at the S.W. corner of appellee's lot "which said corner is located 818.53 feet from the `Tennessee Company's Corner' thence turn an angle of 90 degrees right and north 367 feet." Brewer v. Brewer, 252 Ala. 629, 42 So. 2d 244. To this extent the decree will be reversed to the end that the lower court modify the description in the decree as stated.
In support of the correctness of the western line, as found by the court, appellee relies on adverse possession. Appellant, holding record title, urges error. While not attempting to set out all the evidence, the recital below presents the pertinent facts with regard to the appellee's adverse possession. Appellee's lot was cut out of a larger tract, all of which was formerly owned by one Hicks. Hicks conveyed a lot to appellee in 1931; his successive heirs conveyed the disputed strip to appellant in 1945.
In 1931 appellee went into and has remained continuously in possession of the tract east of the western boundary as established by the court. She has built her home on the disputed tract; a tract which was not described in her deed. The evidence and the reasonable inferences therefrom show that appellee planted a hedgerow on what she believed to be the true dividing western line, which line was established by the court as being the western line, that she had a wire fence placed on said boundary. She has cleared the land, planted gardens, cut timber on it and claimed to own all of this tract from the time of the conveyance in 1931. After appellant was conveyed the disputed strip, the evidence shows that he and the appellee had logs placed on the western boundary, as claimed by appellee and established by the court. There is no evidence showing that a question had ever been raised between the parties, or between appellee and the grantor and heirs as to appellee's western boundary until shortly before this suit, when appellant had a survey made.
Appellant challenges the sufficiency of the evidence to prove adverse possession. A decree establishing a boundary line between coterminous lands on evidence submitted ore tenus in open court is presumed on appeal to be correct. Spradling v. May, 259 Ala. 10, 65 So. 2d 494.
As between coterminous landowners where a question of boundary line is presented, when parties agree upon the location of a line fence or one of them proceeds to enclose his property and erects a fence intended as a line fence and holds actual and exclusive possession to it as such, his possession is adverse and if continued for ten years ripens into title. The controlling fact is one of intention and if there is an inference arising from the evidence that there was an intention on the part of the complainant to hold and enjoy the property up to the line claimed by the complainant as the true dividing line between the property, with the assent or apparent recognition of it as such on the part *849 of respondent and his predecessors in title for the stated period, this is sufficient to discharge the complainant's burden of proof. And if the possessor considered and claimed the land up to the established line as her own, the possession is hostile even though she is claiming more than she owns and claims by mistake of fact. Though the established division line might have been erroneous in fact, if it may be inferred that the fence was believed to be the true line and the claim of ownership was to the fence, the possession is adverse and "`does not originate in an admitted possibility of a mistake.'" Denton v. Corr, 253 Ala. 497, 45 So. 2d 288, 290; Guy v. Lancaster, 250 Ala. 287, 34 So. 2d 499; Milstead v. Devine, 254 Ala. 442, 48 So. 2d 530. The evidence, therefore, was sufficient to establish title to the aforementioned disputed strip, both coterminous owners recognizing the western boundary as claimed by complainant as the true line for more than ten years.
The determination of the northern and northwestern boundaries of appellee's lot and the southern and northeastern boundaries of appellant's lot presents a more difficult question. The line, as established by the trial court has the effect of destorying the appellant's record title to certain portions of land which was conveyed by the appellee to the appellant. While it is true that a grantor may by adverse possession acquire title to land which he has conveyed, the possession of the grantor after conveyance is presumed to be subordinate to the title of the grantee. This presumption, however, is rebuttable. Bellamy v. Shryock, 211 Ark. 116, 199 S.W.2d 580; Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882; Chandler v. Pope, 205 Ala. 49, 87 So. 539; Mahan v. Smith, 151 Ala. 482, 44 So. 375; Abbett v. Page, 1890, 92 Ala. 571, 9 So. 332; 4 Tiffany Real Property, § 1182.
"The grantor's adverse possession may be initiated by actual notice of hostility, or by retention of actual possession and exercise of dominion over the property consistent only with a claim of exclusive and adverse right, either being sufficient * * *." 2 C.J.S., Adverse Possession, § 95, p. 654. See also Chandler v. Pope, 205 Ala. 49, 87 So. 539; Turnipseed v. Moseley, supra; 1 Am.Jur. 819, 39 A.L.R.2d 353, 356.
The question, therefore, is whether or not the appellee-grantor's possession of the conveyed land was adverse to the grantee-appellant. The rules of law governing adverse possession between coterminous landowners where possession is based upon mistake will supply the guide in determining this question.
Where two coterminous proprietors agree on a boundary line and each occupies to its location, the possession is presumed to be adverse and fixes the boundary line after ten years. Winbourne v. Russell, 255 Ala. 158, 50 So. 2d 721. Or otherwise stated where coterminous landowners hold possession up to a hedgerow and each holds to the hedgerow as the true line between them, possession to the hedgerow of each would be adverse to that of the other. Smith v. Bachus, 195 Ala. 8, 70 So. 261.
In Rains v. Louisville & N. R. Co., 1934, 254 Ky. 794, 72 S.W.2d 482, the grantee so located a fence as to leave the land in dispute enclosed with the grantor's other property, and placed the grantor's house on said disputed strip where it remained for the statutory period before the mistake was discovered. In holding that the grantor's possession thereof was hostile, the court posed the question of what better notice of disclaimer and assertion of ownership in himself (the grantor) could there be that the grantor intended to claim this property as his own than what was done when the grantee itself so located the fence and house.
In the case at bar the appellant-grantee so located his shrubbery line, on the south, and an embankment on the east, as to leave the land in dispute enclosed with the grantor's other property.
Where there was a mistake in the boundaries of the original conveyance but the grantor remained in possession of a part *850 conveyed for over the statutory period, the court in Moore v. McDonald, Tex.Civ.App. 1927, 298 S.W. 662 held that the grantor's adverse possession ripened into title. There the disputed area was enclosed by a fence and the grantor cultivated, used and enjoyed the said property. See also Bower v. Earl, 1869, 18 Mich. 367; Fort Wayne Smelting & Refining Works v. City of Fort Wayne, 1938, 214 Ind. 454, 14 N.E.2d 556; Great Southern Life Ins. Co. v. Dodson, Tex.Civ. App.1941, 155 S.W.2d 379, 39 A.L.R.2d 353.
This case is to be distinguished from Turnipseed v. Moseley, 248 Ala. 340, 27 So. 2d 483, 170 A.L.R. 882, wherein neither the grantor nor the grantee's possession was exclusive or continuous, nor was there in said case an agreed hedgerow and embankment line, as in the case at bar. Nor since the evidence was not taken ore tenus before the court, was there a presumption of correctness of the trial court's decree.
The respondent does not in his answer allege fraud on the part of the grantor. It appears that the grantee-appellant was conveyed a lot 100'× 110' in the northwest corner of appellee's lot by the grantor-appellee in 1940-41. The grantee went into possession and set up what he thought were the true southerly and easterly boundaries thereof, which excluded the disputed part. The evidence shows that the grantee planted a hedgerow on the southern boundary of said lot, as established by the trial court; logs were also placed on this line. The grantee further testified that he did not claim any of the disputed area until said land was surveyed, which was shortly before this suit was begun. On the grantee's eastern boundary, as established by the court, the grantee placed "a three foot fill," or embankment under the belief that it was the true eastern boundary; he also planted trees on said eastern boundary. The grantee did not place anything east of said embankment nor did he claim any of the disputed area until the aforementioned survey was made. There was evidence that the grantor always exercised exclusive possessory acts over the disputed area.
While no attempt has been made to set out all the evidence, the above will suffice to show that the boundaries as determined by the trial court are not plainly and palpably wrong, and as so often said the decree of the trial court on testimony ore tenus will not be disturbed unless plainly and palpably wrong. Stewart v. Stewart, 261 Ala. 374, 74 So. 2d 423; Turner v. Turner, 261 Ala. 129, 73 So. 2d 549. In light of the legal principles adverted to, the decree of the trial court is due to be affirmed except as to the modification thereof first hereinabove mentioned.
Appellant cites Title 7, § 828, Code of Alabama 1940, in support of his claim. This section does not apply to "cases involving a question as to boundaries between coterminous owners." See Duke v. Wimberly, 245 Ala. 639, 18 So. 2d 554; Denton v. Corr, 250 Ala. 149, 33 So. 2d 625.
Certain rulings of the trial court on admission of evidence are challenged by appellant. Appellant argues that the questions propounded were leading and the overruling of his objections thereto is error. This court has held that the trial courts are vested with a large discretion in allowing leading questions; the exercise of which will not be disturbed unless it is clearly abused. Birmingham Ry., Light & Power Co. v. Pritchett, 161 Ala. 480, 49 So. 782; Davis v. Smitherman, 209 Ala. 244, 96 So. 208; Title 7, § 444, Code of Alabama 1940. The location of the appellee's house, what acts, if any, she performed as to the land and the origin of the hedgerow on the western boundary were germane to the issue of appellee's adverse possession. We are of the opinion, therefore, that the trial court did not herein abuse its discretion in overruling appellant's objections thereto.
In Assignment of Error 18, appellant urges error on the part of the trial court in the overruling of another of appellant's objections. The overruling of objections to questions will not be considered by the reviewing court where, as here, the objection *851 was not interposed until after a responsive answer from the witness. Housing Authority of City of Decatur v. Decatur Land Co., 258 Ala. 607, 64 So. 2d 594; Lusk v. Wade, 259 Ala. 555, 67 So. 2d 805.
It results from the foregoing that the decree below is affirmed in all except the portion of the decree misdescribing the beginning point of the appellee's property. The decree will be reversed as to this last phase and the cause remanded so the decree may be to that extent corrected.
Affirmed in part and in part reversed and remanded.
LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur.
On Application for Rehearing
SIMPSON, Justice.
The appellant in brief, in support of his application for rehearing, asserts that appellee did not claim or request the location of the western boundary as set out in the opinion, supra. But appellant in the original brief appends thereto a map attached to which is a legend. The legend states that the blue markings on the map represent "Boundaries claimed in Cobb complaint, marked EEEE" which, of course, includes the land referred to in the opinion and "Western boundary claimed by Cobb, marked EE." This western boundary is the boundary set out in the opinion as the correct one.
Also it is clear from the amended complaint (p. 10, Ts.) that the appellee claimed to own and alleged that she was in the possession of all of this land.
It cannot be said then that the appellee did not claim the land over to the western boundary, as set out in the opinion.
Opinion extended and application overruled.
LIVINGSTON, C. J., and MERRILL and SPANN, JJ., concur. | May 10, 1956 |
f8ca9d3e-87ee-4c22-8a03-078a91a0667f | State v. Joe H. Brady & Associates | 87 So. 2d 852 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 852 (1956)
STATE of Alabama
v.
JOE H. BRADY & ASSOCIATES.
6 Div. 961.
Supreme Court of Alabama.
April 12, 1956.
Rehearing Denied June 14, 1956.
John Patterson, Atty. Gen., and Willard W. Livingston and Jas. R. Payne, Asst. Attys. Gen., for appellant.
Pritchard, McCall & Jones, Birmingham, for appellees.
MERRILL, Justice.
This is an appeal by the state from a final decree of the Circuit Court of Jefferson County, in Equity, vacating and setting aside a sales tax assessment made by the *853 State Department of Revenue against the appellees.
The sole question for our determination is whether the Alabama sales tax applies to sales by the appellees of McCulloch "power chain saws" to various consumers or users who employ said saws in a manner hereinafter described.
The appellees contend that such sales are exempt from the sales tax by the provisions of Title 51, § 755(p), Code of Alabama, 1940 as amended, which, as pertinent here, reads:
The appellant contends that the provisions of the above quoted section are not applicable because the chain saws here involved are used for the purpose of obtaining raw material which is subsequently used in manufacturing; that the saws are not used to manufacture anything; and that the users or consumers of the saws are not manufacturers or processors but are "loggers" or "woodsmen".
The appellant concedes that the saws involved are machines, thus the question resolves itself to the issue of whether they are used in "processing" or "manufacturing" as those words are used in Title 51, § 755(p), supra.
The evidence which was heard ore tenus by the judge consisted of the testimony of two witnesses for the appellees. Their testimony reveals that these power chain saws are portable machines which weigh about 25 pounds and are operated by one man. The owner or operator of the saw, who normally is either an independent contractor or an employee of a lumber mill or a paper mill, receives an order for a certain number of logs the lengths of which are usually specified. The number of logs he is able to secure from a single tree depends upon the size of log desired, and, of course, the size of the tree. He may make as many as 15 "cuts" on a tree, exclusive of the "cuts" required to remove the limbs, and thus acquire 14 logs. The logs are then transported by various means to a lumber mill or paper mill to be made into lumber or paper.
In the case of State v. Try-Me Bottling Co., 257 Ala. 128, 57 So. 2d 537, 539, this court stated:
Does the usage of the saws in the manner above outlined constitute an operation or process "by which the finished or ultimate product has been integrated from elements originally diverse in their forms"? We are at the conclusion that it does not. The end product derived from the operation of these saws is logs. Logs are not, in a proper sense, a finished or ultimate product nor a manufactured product. Logs are raw material from which is manufactured the finished or ultimate product, which, in this case, is either lumber or paper.
*854 Black's Law Dictionary, Fourth Edition, page 1092 defines logs as:
A definition substantially the same as the one above quoted is found in 54 C.J.S., Logs and Logging, § 1a:
In the case of Mitchell v. Page, 107 Me. 388, 78 A. 570, 571, the court in ascertaining the meaning of the word "lumber" as used in a lien statute then under consideration, stated:
See also Craddock Mfg. Co. v. Faison, 138 Va. 665, 123 S.E. 535, 536, 39 A.L.R. 1309, where it is said that logs "refer to the section or sections of a tree which have been cut or sawed from the trunks after the same has been severed from the stump; while by `lumber' is meant the manufactured product from the logs"; Ladnier v. Ingram Day Lumber Co., 135 Miss. 632, 100 So. 369, 370, which approves a definition of logs as "`the stems or trunks of trees cut into convenient lengths for the purpose of being afterwards manufactured into lumber of various kinds'"; and Dead River Co. v. Assessors of Houlton, Me., 103 A.2d 123, 129, where it was held that "pulpwood is not `manufactured lumber' within the meaning of R.S.1944, Chap. 81, Sec. 13, subsec. 1, as amended. Rather does it fall within the meaning of `logs' as used therein."
We would not be understood as attempting to provide or approve definitions for use in all cases. There is a distinction made in our cases between "logs" and "cordwood" under certain schedules and circumstances. Southern Ry. Co. v. Lowe, 170 Ala. 598, 54 So. 51; Monogram Hardwood Co. v. Louisville & N. R. Co., 6 Ala. App. 629, 60 So. 949. We limit our definitions to their applicability to the instant case and approve what was said by the Supreme Judicial Court of Maine in Dead River Co. v. Assessors of Houlton, supra, as follows:
We do not think the intent of the legislature in enacting the exemption statute under consideration was to include therein all machines used to obtain raw materials. While it is true that raw materials are an essential prerequisite to manufacturing or processing, it does not logically follow that all machines which are used to obtain raw materials are used in manufacturing or processing. To so hold would extend the exemption statute to an extent never intended.
We are mindful of the well established rule of statutory construction that exemption statutes are to be strictly construed against the taxpayer and in favor of the state. Curry v. Reeves, 240 Ala. 14, 195 So. 428; 18 Alabama Digest Taxation. We are also mindful of the established principle that a presumption should be indulged in favor of the conclusion of a trial judge who sees and hears the witnesses when the evidence is in conflict. Here, however, as already stated the evidence consisted of the testimony of two witnesses both of whom were called for the appellees. Their admissible testimony was in no respects conflicting, thus no presumption in favor of the findings of the trial court need be indulged. State v. Mobile Stove & Pulley Mfg. Co., 255 Ala. 617, 52 So. 2d 693.
On appeal from the final assessment of sales tax the burden is on the taxpayer to prove its incorrectness as the final assessment is prima facie correct. State v. Mims, 249 Ala. 217, 30 So. 2d 673; Title 51, §§ 140, 767, Code of Alabama, 1940. The appellees have not met the burden of proof so imposed.
The decree of the lower court is reversed and one is here rendered for the amount which has been agreed to be due to the State of Alabama if the proceeds from the sale of the saws are not exempt from the sales tax.
Reversed and rendered.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | April 12, 1956 |
2c5019ad-c97b-4a22-b828-a5db8f6553d1 | Hamilton v. Smith | 86 So. 2d 283 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 283 (1956)
Drayton N. HAMILTON, as Guardian,
v.
Irene Williams SMITH, Ex'x.
3 Div. 739.
Supreme Court of Alabama.
March 22, 1956.
*284 Drayton N. Hamilton, Montgomery, for appellant.
Jones, Murray & Stewart, Montgomery, for appellee.
MERRILL, Justice.
This is an appeal by the Guardian ad litem from a decree of the Circuit Court of Montgomery County, In Equity, denying the ward of appellant the right to share in the estate of her adoptive parent, who had executed a will prior to the adoption.
In 1953, Lillian Stone made a will leaving all her property to her adult daughter, Irene Smith. In 1954 Mrs. Stone adopted Catherine Stone, the minor represented by a guardian ad litem in this proceeding. In 1955 Mrs. Stone died, but prior thereto she had been divorced from her husband, Stone, and had resumed her former name, Lillian S. Williams. Her will was duly probated and the administration of the estate was transferred to the Circuit Court, in Equity.
The single question for our decision, and it is one of first impression here, isdoes an adopted child become a pretermitted heir upon the death of his adoptive parent if his adoption was made final after the execution of the will of his adoptive parent and in the absence, in such will, of the contingency of after-born children. There is an annotation on this subject in 24 A.L.R.2d 1085.
It is obvious that the adult daughter, Irene Smith, takes the entire estate of Lillian Stone, deceased, under the will, unless there is some "provision of positive law" which directs otherwise; and it is equally obvious that the adopted child would have shared in the estate of the decedent under our law of descent and distribution had there been no will. Franklin v. White, 263 Ala. 223, 82 So. 2d 247.
Appellant contends that Title 61, Sec. 10, Code of 1940, should be construed so as to protect the adopted child. The Code provision reads:
*285 A mere reading of this statute containing the words "born" and "birth" is indicative that it is intended to apply only to a natural child or children. This statute has been a part of our law from the time that Alabama was a part of the Mississippi territory, Toomer v. Van Antwerp Realty Corp., 238 Ala. 87, 189 So. 549, 123 A.L.R. 1063, and at the time this pretermission statute became a part of our law, the right of adoption, as we know it today, did not exist under our statutes, and the Legislature could not have intended the word "child" to include adopted children. Any effort on our part to construe the statute to include adopted children would be legislation by judicial decree. There are occasions when courts must correct or ignore or supply obvious inadvertences in order to give a law the effect which was plainly intended by the legislature, but we do not subscribe to the doctrine that the judiciary can or should usurp the legislative function in a republican form of government. We must therefore leave the amendment of the statute to the legislature.[1]
The position of the appellants is not aided when the adoption statute is considered. The applicable part of Title 27, Sec. 5, Code of 1940 defining the status of an adopted child, says: "* * * and the child shall be invested with every legal right, privilege, obligation, and relation in respect to education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock." (Emphasis supplied.) The present adoption statute is different from that in effect in 1885, but remains substantially the same insofar as "the right of inheritance" is concerned. This Court, in the case of Russell v. Russell, 84 Ala. 48, 3 So. 900, in holding that Cyrus George Russell took nothing under the will of his adoptive father, Thomas S. Russell, who had executed his will prior to the adoption of Cyrus George Russell, the will providing "`I give to my children two-thirds of all my personal and real estate'," said:
As Chief Justice Stone said in the Russell case, supra, "the conclusion we have reached probably presents a great hardship" and we would prefer that the pretermission statute provided for adopted as well as natural children, but the statute is clear and unambiguous and as already stated, we do not care to embark on a venture of judicial legislation.
Appellant filed a petition in this cause requesting that this court allow a reasonable fee for his services rendered as guardian ad litem on this appeal. Although unsuccessful in this court, appellant was justified in bringing the question to this court for a decision because it was one of first impression in this state and there was no decisive precedent to follow. A fee of $250.00 is allowed, to be taxed as was the earlier fee in the court below in this cause.
The decree of the lower court is correct and should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and GOODWYN, JJ., concur.
[1] The statute has been amended as a result of this decision. Act No. 112, approved April 14,1956, 2d Sp.Sess.1956. | March 22, 1956 |
d2b10b07-c38a-43a9-9b6d-43ed616724df | Hays v. Deaton Truck Line | 87 So. 2d 825 | N/A | Alabama | Alabama Supreme Court | 87 So. 2d 825 (1956)
Priestley B. B. HAYS
v.
DEATON TRUCK LINE, Inc., et al.
6 Div. 884.
Supreme Court of Alabama.
January 12, 1956.
Rehearing Denied June 14, 1956.
*826 J. Terry Huffstutler, Birmingham, for appellant.
Sadler & Sadler, Birmingham, for appellee Deaton Truck Line.
Bryan A. Chancey, Birmingham, for appellee Compton.
R. Clifford Fulford, Birmingham, amicus curiae.
SIMPSON, Justice.
This is an appeal from a judgment of nonsuit suffered by the plaintiff after the court sustained the demurrers of the defendants to the complaint.
Suit arose out of an accident involving the automobile of the plaintiff and a truck owned by the defendant Compton while under lease to defendant Deaton Truck Line, Inc. The complaint as amended Count A in simple negligence, Count B in wantonnessalleges that on December 4, 1953, the truck involved was owned by Compton and driven by John McWhorter under lease for hauling motor freight for Deaton Truck Line; that on December 3 McWhorter had completed a delivery at Deaton's terminal in Birmingham, Alabama, had dropped his trailer there and had received instructions that he was to pick up his next load at Tuscaloosa at 7:00 the following day, December 4; on the evening of December 3 McWhorter was also informed that his baby daughter was ill and that he was needed at home, Blountsville, Alabamaa town northeast of Birmingham.
The complaint further alleges that McWhorter drove the truck without its trailer home on that night; that on the morning of December 4 McWhorter left his home and was proceeding en route to Birmingham to get the trailer and to proceed to Tuscaloosa to pick up the load when the accident happened. The complaint also alleges that McWhorter made out trip tickets to Blountsville and return to Birmingham for his truck and trailer, not for the truck alone. These were filed with Deaton and mileage tax thereon was paid by Deaton but, as stated, showed that the truck and trailer had made the trip.
Both defendants assigned as grounds of demurrer inter alia that the driver McWhorter was not shown to have been acting within the line and scope of his employment on the occasion of the accident.
In construing a lease similar to the one before us, this court in Stevens v. Deaton Truck Line, 256 Ala. 229, 54 So. 2d 464, leaned to the view that when carrying out his duties under the terms of said lease, the truck owner was a servant or employee of Deaton rather than an independent contractor. In our view this relationship is not changed by the owner's employment of a driver. The master-servant relationship continues with Deaton and the owner as the servant-driver's master. The driver would be the servant for both. Cf. Deaton Truck Line v. Acker, 261 Ala. 468, 74 So. 2d 717.
In the Stevens case, supra, at 256 Ala. 233, 54 So. 2d 468, it was stated:
So the question for decision is whether or not driver McWhorter, on the occasion complained of, was acting within the line and scope of his employment or engaged in the accomplishment of objects in or about the duties of the business of hauling freight. We think not. At the time of the accident McWhorter was returning from a strictly personal mission, a visit to his home. He had abandoned work for his employer Compton and for Deaton when he dropped his trailer at the terminal, and had not resumed his duties at the time of the accident. His trip to Blountsville and return was of no benefit to them. Stevens v. Deaton Truck Line, supra; Smith v. Brown-Service Ins. Co., 250 Ala. 613, 35 So. 2d 490; Schoenith, Inc., v. Forrester, 260 Ala. 271, 69 So. 2d 454; Bell v. Martin, 241 Ala. 182, 1 So. 2d 906, and authorities cited; United States Steel Co. v. Butler, 260 Ala. 190, 69 So. 2d 685.
We do not find in this jurisdiction a case with the identical factual situation, but as we have often said each case must be ruled by its own peculiar or particular facts. However, as we view it, the foregoing authorities and many others which could be cited point to the correctness of our conclusion. The Bell v. Martin case, supra [241 Ala. 182, 1 So. 2d 908], holding the master not liable because the agent-driver of the truck had temporarily abandoned his employer's business and had not resumed it when the accident happened, contains several apt quotations, such as the following from 122 A.L.R. 873-874:
While the instant case does not present a situation where the servant temporarily deviated from his duty, it is quite analogous. McWhorter had never entered upon any business for his master on this particular occasion. He was merely returning to Birmingham to enter upon that duty. The fact that he was in a Deaton truck which was to later be used in the business for Deaton would not change the status. It would have been all the same had he been in his own or a borrowed conveyance. The simply stated rule controlling is that:
See also Stevens v. Deaton Truck Line, supra; Ware v. Roadway Express, Inc., D.C.Mo., 81 F. Supp. 893; Kirtland v. Interstate Motor Freight System, 53 Ohio App. 459, 5 N.E.2d 707.
With reference to a similar situation the court observed in the Ware case, supra [81 F.Supp. 895]:
And in the Kirtland case, supra, the Ohio court held to the following effect:
Appellant further contends that Deaton's payment of the mileage taxes on the Blountsville trip amounts to ratification. In his complaint appellant alleges only payment of the taxes and makes no allegation with reference to any ratification of the acts of McWhorter. We therefore deem the pleadings insufficient to support his argument for at least the following two reasons: (1) It does not affirmatively appear that Deaton had full knowledge of the facts surrounding the accident at the time of the tax payment and (2) an intent to ratify is not necessarily inferred from the facts alleged. 52 Am.Jur. 455, § 115; 2 C.J.S., Agency, § 47(b), p. 1094; Birmingham News Co. v. Birmingham Printing Co., 209 Ala. 403, 96 So. 336. In the state of the pleading the ultimate fact of ratification should have been averred. Screws v. Williams, 230 Ala. 392, 161 So. 453.
Moreover, construing the pleadings most strongly against the pleader, it could be well assumed that Deaton had no knowledge that these trip tickets had reference to McWhorter's trip to and from home, since the tickets showed four axles and since McWhorter was on no business for Deaton or his immediate superior, Compton, it cannot be reasonably implied that Deaton would have thus ratified any such conduct into liability against itself.
The amicus curiae brief argues that the filing of the trip tickets has some evidentiary value of showing agency on the part of McWhorter and that he was acting in line of duty when the accident occurred. We cannot agree. The trip tickets describe an entirely different status, namely, a truck and trailer. In the face of the allegations of the complaint showing clearly that McWhorter was on a personal mission and in no way acting as agent for his master or in behalf of the business of hauling freight for Deaton, these trip tickets were not sufficient to warrant the stated inference.
Appellant argues that if the relationship of master and servant does not obtain *829 that the relationship between Deaton and Compton was that of joint venturers, but even so, if, when the accident occurred, McWhorter was not on business for the venturers, but on a personal mission of his own, as appears from allegations of the complaint, his negligence in causing the accident could not be attributed to the venturers.
We find no error in the ruling below.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and MAYFIELD, JJ., concur. | January 12, 1956 |
aa00d0e9-4899-4506-b606-5e32db864a8d | Birmingham Coal & Coke Company, Inc. v. Charlotte Johnson et al. | N/A | 1070303 | Alabama | Alabama Supreme Court | REL: 12/5/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070303
____________________
Birmingham Coal & Coke Company, Inc.
v.
Charlotte Johnson et al.
Appeal from Winston Circuit Court
(CV-05-51)
SEE, Justice.
Birmingham Coal & Coke Company, Inc. ("Birmingham Coal"),
appeals
from
a judgment awarding monetary damages to Charlotte
Johnson and 18 other plaintiffs ("the plaintiffs") for
1070303
2
property
damage
and for emotional
distress
and mental anguish.
We affirm in part, reverse in part, and remand.
Facts and Procedural History
Birmingham Coal operated a surface coal mine in Winston
County. In 2001, Birmingham Coal hired Boren Explosives,
Inc., to perform blasting at the mine; the blasting continued
through 2004. The plaintiffs, who lived near the blasting
site, sued Birmingham Coal in the Winston Circuit Court
claiming damage to 10 houses from vibrations created by the
blasting. The distance to the houses from the point of the
blasting ranges from 2,875 feet to 4,779 feet. The
plaintiffs' complaint alleges that Birmingham Coal (1)
conducted its mining operation in a negligent and wanton
manner, (2) trespassed by interfering with the plaintiffs'
possession, use, and enjoyment of their properties, (3)
created a nuisance, and (4) engaged in an abnormally dangerous
activity.
The claims were tried in a bench trial. The plaintiffs
testified that they could hear and feel the blasting in their
houses and that they noted damage to their houses after
Birmingham
Coal
began
the blasting operation.
Birmingham
Coal
1070303
3
presented
expert
testimony that
it
had followed State blasting
regulations at all times and that the blasting could not have
caused the damage the plaintiffs claimed it caused to their
houses. At the close of all the evidence, Birmingham Coal
moved for a judgment as a matter of law ("JML") on all the
plaintiffs' claims. The trial court entered a JML for
Birmingham Coal on the wantonness, trespass, and nuisance
claims. It entered a judgment in favor of the plaintiffs on
their negligence claim and awarded compensatory damages to
each plaintiff, consisting of the cost to repair the
plaintiff's house and the diminution in the value of the
house. The trial court also awarded damages for mental
anguish and emotional distress in an amount equal to each
plaintiff's property-damages award. Birmingham Coal appeals.
Issues
Birmingham Coal raises four issues: first, whether the
plaintiffs presented sufficient evidence to support the trial
court's damages award for damage to the plaintiffs' houses;
second, whether the trial court
improperly
awarded damages for
both the cost to repair and the diminution in value; third,
whether the trial court improperly awarded damages for mental
1070303
4
anguish and emotional distress in the absence of any physical
injury; and, finally, whether the award for mental anguish and
emotional distress was excessive.
Standard of Review
The trial court entered its judgment after hearing ore
tenus evidence.
"'"'[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.'"' Water
Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,
443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.
2d 429, 433 (Ala. 2005), quoting in turn Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002)). '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083,
1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.
2d 77, 79 (Ala. 1985)). 'Additionally, the ore
tenus rule does not extend to cloak with a
presumption
of
correctness
a
trial
judge's
conclusions of law or the incorrect application of
law to the facts.' Waltman v. Rowell, 913 So. 2d at
1086."
Retail Developers of Alabama, LLC v. East Gadsden Golf Club,
Inc., 985 So. 2d 924, 929 (Ala. 2007).
Analysis
I. Sufficiency of the Evidence of Damage to the Houses
1070303
5
Liability in blasting cases is governed by the principles
established in Harper v. Regency Development Co., 399 So. 2d
248 (Ala. 1981). In that case this Court abandoned the
application of traditional negligence principles in blasting
cases and adopted a test based on the Restatement (Second) of
Torts §§ 519 - 520 (1977). The Restatement (Second) of Torts
§ 519 provides:
"(1) One who carries on an abnormally dangerous
activity is subject to liability for harm to the
person, land or chattels of another resulting from
the activity, although he has exercised the utmost
care to prevent the harm.
"(2) This strict liability is limited to the kind of
harm, the possibility of which makes the activity
abnormally dangerous."
The Restatement (Second) of Torts § 520 lists the following
factors as those that should be considered in determining
whether an activity is abnormally dangerous:
"(a) existence of a high degree of risk of some
harm to the person, land or chattels of others;
"(b) likelihood that the harm that results will
be great;
"(c) inability to eliminate the risk by the
exercise of reasonable care;
"(d) extent to which the activity is not a
matter of common usage;
1070303
6
"(e) inappropriateness of the activity to the
place where it is carried on; and
"(f) extent to which its value to the community
is outweighed by its dangerous attributes."
This Court concluded in Harper that "[t]he use of the
explosives
under
abnormally
dangerous
conditions
is
negligence, and thus actionable if such conduct proximately
causes damage to another." Harper, 399 So. 2d at 252. This
Court further held:
"A
finding,
guided
by
a
consideration
of
factors
outlined in the Restatement, that the blaster was
'one who carries on an abnormally dangerous
activity' is a finding of negligence -- the breach
of a legal duty –- and, a further finding that such
conduct proximately damaged another, renders the
blaster liable therefor. Ordinarily, both of these
determinations will be issues of fact for the jury."
Harper, 399 So. 2d at 253. This Court further stated that the
law will not "permit the blaster to defend on the ground that
he carefully prepared and detonated the explosive." Id.
In this case, the trial court found that "the plaintiffs
proved by substantial evidence that the use of explosives in
this case [was] under abnormally dangerous conditions and
proximately caused severe damage[] to the plaintiffs'
dwellings." Birmingham Coal argues in response that the
plaintiffs failed to present substantial evidence that its
1070303
7
blasting
constituted
an
abnormally
dangerous
activity
because,
it argues, the blasting was conducted according to State
regulations. However, this Court rejected that defense in
Harper. Therefore, Birmingham Coal did not establish that the
plaintiffs failed to present substantial evidence that the
blasting constituted an abnormally dangerous activity.
Birmingham Coal also argues that there was insufficient
evidence to support the trial court's damages award for damage
to the plaintiffs' houses because, it says, the plaintiffs did
not present any expert or eyewitness testimony linking the
damage to the plaintiffs' houses to Birmingham Coal's
blasting. In support of this insufficient-evidence argument,
Birmingham Coal notes the statement in Harper that "[b]oth
prongs of proof [of the traditional negligence standard] set
the stage for a battle of the experts," Harper, 399 So. 2d at
251,
which,
it
argues,
implicitly
recognizes
the
necessity
for
the plaintiff to present expert testimony. However, this
Court also stated in Harper that "[proving that the blasting
caused the claimed damage] pits the plaintiff's evidence of
before and after damage –- in the context of circumstantial
cause and effect –- against the defendant's expert," which
1070303
8
implies that the plaintiff is not required to present expert
testimony. Harper, 399 So. 2d at 251. Moreover, the Court of
Civil Appeals has concluded that the defendant in a blasting
case is not entitled to a summary judgment on the issue of
proximate cause when the plaintiff did not present any expert
testimony. McCuller v. Drummond Co., 714 So. 2d 298, 299 (Ala
Civ. App. 1997) (McCuller testified that Drummond's blasting
could be felt in his house, and he presented evidence
indicating that the extent of the damage to his house went
beyond normal shrinkage of the floor slab or masonry or wear
and tear. Craig Ledbetter, a construction-management
consultant, said in his deposition that although he was not an
expert in blasting, he could say that the damage to McCuller's
house was consistent with blasting damage.).
In
this
case,
the
plaintiffs
presented
evidence
indicating that they could hear the blasts and could feel the
vibrations from the blasting in their houses and that they
noticed damage to their houses after Birmingham Coal began
blasting. It appears that under Harper this evidence was
sufficient to support the trial court's award for damage to
1070303
9
the plaintiffs' property. Therefore, we affirm the judgment
of the trial court on this issue.
II. Basis of Property-Damages Award
"The proper measure of compensatory damages in
a tort action based on damage to real property is
the difference between the fair market value of the
property immediately before the damage and the fair
market value immediately after the damage. Nelson
Brothers, Inc. v. Busby, 513 So. 2d 1015, 1017 (Ala.
1987); Dooley v. Ard Oil Co., 444 So. 2d 847, 848
(Ala. 1984). Although mathematical certainty is not
required, a jury cannot be left to speculate as to
the amount of damages, but '"[t]his does not mean
that the plaintiff must prove damages to a
mathematical certainty or measure them by a money
standard. Rather, he must produce evidence tending
to show the extent of damages as a matter of just
and reasonable inference." C. Gamble, Alabama Law of
Damages § 7-1 (2d ed. 1988).'"
IMAC Energy, Inc. v. Tittle, 590 So. 2d 163, 168 (Ala. 1991)
(quoting Industrial Chem. & Fiberglass Corp. v. Chandler, 547
So. 2d 812, 820 (Ala. 1988)) (emphasis omitted).
Birmingham Coal argues that the trial court erred in
setting the amount of its award of damages to the plaintiffs
for damage to their houses because six plaintiffs did not
express an opinion on the diminution, if any, in the value of
their houses and because the trial court based its award on
evidence of repair costs and diminution in value. Birmingham
Coal cites Poffenbarger v. Merit Energy Co., 972 So. 2d 792
1070303
10
(Ala. 2007), in support of its argument. This case, however,
is inapposite. In Poffenbarger, the Court addressed the
following question: "Under Alabama law, what is the general
rule for the measurement of direct, compensatory damages for
an injury to real property when the cost to remediate the
property exceeds the diminution in the value of the property
caused by the injury?" 972 So. 2d at 795. The Court in
Poffenbarger did not answer the question whether repair costs
could be considered in cases where damage to real property
occurred. Instead, it addressed only those situations in
which the cost to repair the real property exceeds the
diminution in the value of the property. Birmingham Coal does
not point to any evidence indicating that the trial court
awarded the plaintiffs property damages in excess of the
diminution in value of the property or that the evidence of
repair costs presented by the plaintiffs who did not express
an opinion as to diminution did not present a reasonable
inference of damage. Nor does Birmingham Coal present to us
any other argument or authority indicating that the trial
court's method of calculating the property damages is in
error. Therefore, we cannot say that the trial court's
1070303
11
property-damages award is palpably erroneous. We affirm the
judgment of the trial court on this issue.
III. Damages for Mental Anguish and Emotional Distress
Birmingham Coal argues that the trial court erred in
awarding damages for mental anguish and emotional distress,
because, it argues, blasting damages are negligence based and
this Court "has not recognized emotional distress as a
compensable injury or harm in negligence actions outside the
context of emotional distress resulting from actual physical
injury or, in the absence of physical injury, fear for one's
own physical safety." AALAR, Ltd. v. Francis, 716 So. 2d
1141, 1148 (Ala. 1998). "'In negligence actions, Alabama
follows the "zone-of-danger" test, which limits recovery of
mental anguish damages to "those plaintiffs who sustain a
physical injury as a result of a defendant's negligent
conduct, or who are placed in immediate risk of physical harm
by that conduct."'" Ex parte Grand Manor, Inc., 778 So. 2d
173, 179 (Ala. 2000) (quoting Wal-Mart Stores, Inc. v. Bowers,
752 So. 2d 1201, 1203 (Ala. 1999), quoting in turn AALAR, Ltd.
v. Francis, 716 So. 2d at 1147, and citing White Consol.
Indus., Inc. v. Wilkerson, 737 So. 2d 447, 449 (Ala. 1999)).
1070303
12
The plaintiffs argue that liability in blasting cases is
based in strict liability, not negligence. However, in Harper
this Court stated that "[t]he use of the explosives under
abnormally dangerous conditions is negligence," Harper, 399
So. 2d at 252, and compared an action based on blasting to an
action brought under the Alabama Extended Manufacturer's
Liability Doctrine ("the AEMLD"). This Court has held that
"[a] claim under the AEMLD is grounded in tort and is premised
on the notion that 'a [manufacturer's marketing] a product not
reasonably safe, when applied to its intended use in the usual
and customary manner, constitutes negligence as a matter of
law.'" White Consol. Indus., Inc., 737 So. 2d at 449 (quoting
Casrell v. Altec Indus., Inc., 335 So. 2d 128, 132 (Ala.
1976)). In White Consolidated Industries, this Court also
stated that under the AEMLD a plaintiff cannot recover damages
for mental anguish and emotional distress if he or she did not
suffer a physical injury or was not in the "zone of danger."
737 So. 2d at 449. Applying the principles set forth in
Harper and White Consolidated Industries, we hold that the
plaintiffs cannot recover for mental anguish or emotional
1070303
13
distress unless they suffered physical injury or were in the
"zone of danger."
The plaintiffs argue that although the general rule is
that "the law will not allow recovery of damages for mental
distress where the tort results in mere injury to property,"
Reinhardt Motors, Inc. v. Boston, 516 So. 2d 509, 511 (Ala.
1994), mental-anguish awards are proper in tort cases when the
property damaged is a person's home. The plaintiffs cite F.
Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So.
630 (1932); B&M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.
1979); and Orkin Exterminating Co. v. Donavan, 519 So. 2d
1330, 1333 (Ala. 1988), in support of their argument.
However,
as
the plaintiffs
admit, these cases involve
recovery
for breach of contract, not tort liability, and the plaintiffs
do not cite any caselaw in support of their argument that this
liability should be extended to tort actions. Thus, the
plaintiffs' argument is not persuasive in light of the well-
established rule that in tort cases damages for mental anguish
have to be linked to actual physical injury or "zone of
danger," and we decline to extend the exception to tort-
liability cases.
1070303
14
The plaintiffs next argue that damages for mental anguish
have been routinely awarded in blasting cases. However, each
of the cases cited by the plaintiffs involved physical injury
to the plaintiff, wantonness or trespass on the part of the
defendant, and/or a plaintiff who was in the "zone of danger."
See Birmingham Realty Co. v. Thomason, 8 Ala. App. 535, 542-
43, 63 So. 65, 67 (1912) (allowing mental-anguish damages
where "the blasting operations, as carried on throughout a
considerable period of time, without due precautions being
taken for the safety of persons or property within the zone of
danger therefrom, amounted to more than an isolated trespass,
and assumed the proportions of a nuisance as regards the
plaintiff's neighboring premises, involving injury to his
property and real or reasonably apprehended peril to himself
and to members of his family"); see also J.B. McCrary Co. v.
Phillips, 222 Ala. 117, 119, 130 So. 805, 807 (1930) (allowing
mental-anguish damages where the defendant "blasted rock and
dirt from the excavation, throwing the rock upon plaintiff's
house, which broke through the roof of the main house and the
porch in such sort as to endanger the lives of the
occupants"); Central of Georgia Ry. v. Kimber, 212 Ala. 102,
1070303
15
101 So. 827 (1924) (allowing mental-anguish and emotional-
distress damages where the plaintiff showed that the blasting
caused a "physical injury to her nervous system"); IMAC
Energy, Inc. v. Tittle, 590 So. 2d at 168 (allowing mental-
anguish and emotional-distress damages where there was
sufficient evidence to support a finding of wantonness);
Dockins v. Drummond Co., 706 So. 2d 1235, 1237 (Ala. Civ. App.
1997) (allowing damages for mental anguish and emotional
distress where the trespass to property was committed "under
circumstances of insult or contumely"). None of those issues
is present in this case. The cases cited by the plaintiffs in
support of the damages award for mental anguish and emotional
distress
are
distinguishable from
this case and,
therefore, do
not support the plaintiffs' argument.
Because damages for mental anguish and emotional distress
are proper only in tort cases in which the plaintiff is in the
"zone of danger" or has suffered a physical injury or the
defendant's action constitutes wantonness or trespass under
circumstances of insult or contumely, and because there is no
evidence indicating that such is the case here, we hold that
the trial court erred in awarding damages for mental anguish
1070303
16
and emotional distress. We, therefore, reverse the trial
court's judgment on this ground.
IV. Amount of Award for Mental Anguish and Emotional
Distress
Finally, Birmingham Coal argues that the amount of the
trial court's award for mental anguish and emotional distress
is excessive. Because we hold that the plaintiffs in this
case are not entitled to damages for mental anguish and
emotional distress, we need not address this issue.
Conclusion
We affirm the trial court's judgment insofar as it
awarded damages for damage to the plaintiffs' property and the
amount of that award, but we reverse the trial court's
judgment insofar as it awarded damages for mental anguish and
emotional distress and remand the case for the entry of a
judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | December 5, 2008 |
ebb6bada-604b-4340-b4b7-5929afd4c736 | INTERNATIONAL UNION, ETC. v. Russell | 88 So. 2d 175 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 175 (1956)
INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, C.I.O., et al.
v.
Paul S. RUSSELL.
8 Div. 751.
Supreme Court of Alabama.
March 22, 1956.
Rehearing Denied June 21, 1956.
*180 Adair & Goldthwaite, Atlanta, Ga., Harold A. Cranefield, Detroit, Mich., and Sherman B. Powell, Decatur, for appellants.
Horace C. Wilkinson, Birmingham, and Julian Harris and Norman W. Harris, Decatur, for appellee.
Cooper, Mitch & Black, Birmingham, for Congress of Industrial Organizations, American Federation of Labor, etc., amici curiae.
LIVINGSTON, Chief Justice.
This is the second appeal in this cause. Paul S. Russell brought suit against International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., an unincorporated organization, and other unions, later stricken by amendment, and Michael Volk, and other individuals, who were also stricken by amendment. Michael Volk is a resident of the State of Alabama and a member of the International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, C.I.O., an unincorporated organization. The defendants filed a plea to the jurisdiction, to which the plaintiff demurred. The court overruled the demurrer to the plea and because of this adverse ruling, the plaintiff took a nonsuit and appealed on the record, as authorized by Sec. 819, Tit. 7, Code 1940. On that appeal, this court held that the Circuit Court of Morgan County, Alabama, did have jurisdiction of the cause of action stated in the complaint and reversed and remanded the cause to the Circuit Court of Morgan County. Russell v. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, C.I.O., 258 Ala. 615, 64 So. 2d 384.
*181 After the cause was remanded to the circuit court, that court set aside its judgment of nonsuit and reinstated the cause on the trial docket. Thereafter, some amendments were made to the complaint, and the complaint as last amended contained two counts which were substantially the same as the counts before this court on former appeal. The plea to the jurisdiction of the court was refiled and demurrers thereto were sustained by the trial court. Demurrers to each count of the complaint being overruled, defendants entered a plea of the general issue in short by consent with leave, etc. The case was then tried by a jury and resulted in a verdict for the plaintiff for $10,000, and the defendants bring this appeal.
The question of jurisdiction is again raised and argued. Since our decision on former appeal, the Supreme Court of Virginia rendered its decision in the case of United Construction Workers v. Laburnum Construction Corp., 194 Va. 872, 75 S.E.2d 694, 699. The Virginia Court there said:
"The motion to dismiss was properly overruled."
The Supreme Court of the United States in reviewing the Laburnum case, supra, said:
These recent cases but fortify our decision on former appeal. The argument that there is a distinction between the Laburnum case and the instant case, in that the employer was the plaintiff in the one, and an employee is the plaintiff in the other, is clearly without merit.
The legal sufficiency of each of the two counts of the complaint which were submitted to the jury is assailed on this appeal. As stated above, the complaint was amended after the cause was remanded to the trial court by this court. We have indicated that the amendments worked no material change in either of the two counts, but for perfect clarity Count One of the complaint, as it reads giving effect to all amendments to it, will be set out in the report of the case. Count 2 is similar to Count One, except that it alleges a conspiracy among the defendants in connection with the same matters alleged in Count One.
In briefs, both appellants and appellee devote much time and space to the question as to whether the complaint states a cause of action for false imprisonment; also, as to whether it states a cause of action as for a nuisance in blocking a public street. But we lay these arguments aside. We think the complaint states a cause of action for unlawfully and maliciously preventing plaintiff from engaging in his employment. We also think that the evidence was sufficient to take the case to the jury on both counts of the complaint.
Two principal theories are advanced as to why the complaint does not state a cause of action for unlawfully and maliciously preventing plaintiff from engaging in his employment. First, that the complaint does not sufficiently allege that plaintiff lost wages as a result of the unlawful picketing. In other words, that it is not alleged that work would have been available to plaintiff at the plant had he been able to enter it during the period of time complained of. Second, that the names of the agents through whom the union acted is not shown, and that Count 2 is vague and indefinite.
We need not cite authority to the effect that peaceful picketing for a lawful purpose and in a lawful manner is lawful. We judicially know that, ordinarily, union employees will not cross a picket line. It is equally true that union or nonunion employees may lawfully cross a picket line if they desire to do so. But here, these matters are unimportant. The gravamen of the complaint is that defendants unlawfully and maliciously prevented plaintiff from engaging in his employment by unlawful means.
*183 This court recognizes that the right to pursue a lawful occupation is a property right, and the wrongful interference therewith is an actionable wrong. Sparks v. McCrary, 156 Ala. 382, 47 So. 332, 22 L.R.A.,N.S., 1224; Hardie-Tynes Mfg. Co. v. Cruise, 189 Ala. 66, 66 So. 657; U. S. Fidelity & Guaranty Co. v. Millonas, 206 Ala. 147, 89 So. 732, 29 A.L.R. 520; Bowen v. Morris, 219 Ala. 689, 123 So. 222; Hill Grocery Co. v. Carroll, 223 Ala. 376, 136 So. 789; Carter v. Knapp Motor Co., 243 Ala. 600, 11 So. 2d 383, 144 A.L.R. 1177; Russell v. International Union, etc., supra; Lash v. State, 244 Ala. 48, 14 So. 2d 229; Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810.
Sparks v. McCrary, supra [156 Ala. 382, 47 So. 334], was an action in which plaintiff alleged that defendant wrongfully prevented plaintiff from carrying on his retail business. In reversing a judgment sustaining a demurrer to the complaint, this court said:
Employees may strike and may picket their employer's place of business when it is done in a lawful manner and to accomplish a lawful purpose. Hotel & Restaurant Employees, International Alliance v. Greenwood, 249 Ala. 265, 30 So. 2d 696; Alabama State Federation of Labor v. McAdory, supra; Thornhill v. State of Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093. Picketing must be conducted in a lawful manner and it becomes unlawful when force and violence or the threat of force and violence are used to intimidate employees who are not engaging in the strike. Hardie-Tynes Mfg. Co. v. Cruise, supra; Milk Wagon Drivers Union, etc. v. Meadowmoor Dairies, 312 U.S. 287, 61 S. Ct. 552, 85 L. Ed. 836. The use of force and violence or the threat of force and violence against one's person is manifestly unlawful. Furthermore, the Alabama statutes make it unlawful for one to use force, threats or intimidation to prevent another from engaging in a lawful occupation. Tit. 14, § 57, Code 1940; Tit. 26, §§ 384, 385, Cumulative Pocket Part, Code 1940.
The rules of pleading in Alabama require that all matters essential to plaintiff's right to relief be stated with sufficient certainty, clearness and precision to enable defendant to prepare to defend against the action and so as to allow the court and jury to understand the allegations. Cauble v. Boy Scouts of America, 250 Ala. 152, 33 So. 2d 461; Dudley v. Martin, 241 Ala. 435, 3 So. 2d 7; Alabama Great Southern R. Co. v. Cardwell, 171 Ala. 274, 55 So. 185; Weller & Co. v. Camp, 169 Ala. 275, 52 So. 929, 28 L.R.A., N.S., 1106.
The complaint alleges that at the time complained of "Plaintiff was an employee of Calumet & Hecla Consolidated Copper Co. (Wolverine Tube Division) engaged in his said employment at the plant of his said employer in Decatur, Alabama," and the defendants "in order to make the strike effective, and in order to prevent plaintiff and various other employees of plaintiff's employer, who desired to continue working for their said employer, notwithstanding said strike, from entering their employer's place of business, established and maintained from, to-wit, July 18, 1951 to September 24, 1951, a picket line along and in said public street at a point thereon in close proximity to said plant, consisting of great numbers of persons * * *, some of whom were walking at various and sundry intervals during said period in a *184 close and compact circle across the entire traveled portion of said street, and said pickets, on or about July 18, 1951, by force of numbers, threats of bodily harm to plaintiff and damage to his property, and by force and violence consisting of taking hold of the automobile in which plaintiff was riding and thereby stopping it, and consisting of some of said pickets standing or walking in front of said automobile, blocked said public street and made passage to said plant over the same impossible for plaintiff and for others similarly situated, and defendants thereby willfully and maliciously prevented plaintiff from going to and from said plant and from engaging in his said employment, and caused plaintiff to lose much time from his work, to-wit, from July 18, 1951 to August 22, 1951, and to lose earnings from his employment at said plant which he would have received had he not been prevented as aforesaid from going to and from said plant * * *"
We think it would be indulging in hypercriticism to say that the complaint was demurrable because it did not spell out in so many words that work was available to the plaintiff at his employer's plant. The complaint alleges that plaintiff had a job; that he was on his way to it; that defendants unlawfully and maliciously prevented him from getting there, and as a consequence he lost wages on account thereof. These allegations of fact are sufficient to show that work was available to plaintiff had he been able to go to his employer's plant. Indeed, defendants under the plea of the general issue in short by consent attempted to prove that no work was available to plaintiff because of the strike at the plant. The evidence on this point was in conflict and resolved against defendants by the jury.
It is not necessary that plaintiff allege the name of the agent or agents through whom the defendant union was acting. Abingdon Mills v. Grogan, 167 Ala. 146, 52 So. 596. The criticism that Count 2 is vague and indefinite is also without merit. The demurrer to each count was properly overruled.
Appellants assign as error the action of the trial court in overruling appellants' motion for new trial, which motion recited as grounds that: (1) The verdict is contrary to the evidence, (2) the verdict is not sustained by the evidence, (3) the verdict is contrary to the great weight of the evidence, and (4) the verdict is contrary to law.
Appellants' argument is based on the theory that plaintiff is not entitled to any recovery against the defendants if plaintiff's loss of working time and wages was due to a closing of the plant by his employer and not due to any action on the part of the defendants which may have prevented plaintiff from crossing the picket line. Appellants argue that the evidence clearly shows that plaintiff's employer closed the plant to all hourly-rated employees pursuant to an agreement between the employer and the union, and that even though plaintiff had been able to cross the picket line, no work would have been available to him. The record in this case is very lengthy, making it impractical to set out the evidence in this opinion. It is sufficient to say that there was evidence introduced on behalf of the plaintiff which contradicts the defendants' evidence, and which, if believed, would justify a verdict for plaintiff. Under these circumstances, we will not overrule the trial court's ruling on the motion for new trial. Cobb v. Malone, 92 Ala. 630, 9 So. 738; Smith v. Smith, 254 Ala. 404, 48 So. 2d 546; Bell v. Nichols, 245 Ala. 274, 16 So. 2d 799.
A directed verdict for the defendants can only be justified upon the theory that the plaintiff, upon whom rests the burden of proof to establish the right to recover, has wholly failed to adduce evidence to support his cause of action, or that the testimony of the plaintiff's own witnesses, without conflict, makes out the defense of the opposing party. If plaintiff makes out a prima facie case, and the defense is dependent upon oral testimony, the court must leave the credibility of the evidence to the jury and not direct a verdict for the defendant. Schoenith, Inc., v. Forrester, *185 260 Ala. 271, 69 So. 2d 454; Byars v. Alabama Power Co., 233 Ala. 533, 172 So. 621, and cases cited therein. In this jurisdiction, there need be only a scintilla of evidence to require reference of the issue raised thereby to the jury. Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251. Appellants contend that plaintiff introduced no evidence to show that plaintiff was damaged by any illegal conduct on the part of the defendants.
The record reveals that plaintiff introduced evidence tending to prove the following: Plaintiff was a regular employee of the Calumet and Hecla Consolidated Copper Company (Wolverine Tube Division). He worked regularly at an hourly rate of pay and averaged approximately 50 hours a week for the six months preceding July 18, 1951. On occasions when no work was available, the employees were notified in advance by the company. Plaintiff had not been notified that there would be no work on July 18, 1951, and he and numerous other employees went to the plant on that morning expecting to work. When these employees arrived at the approaches to the plant, they found that a strike was in progress, directed by officials of defendant union, including defendant, Michael Volk. The union placed a picket line across the street leading into the plant. Plaintiff attempted to drive through the picket line, but large numbers of men closed in around his car, making it impossible to go forward. One of the strikers held onto the car door handle, and there were shouted threats to turn plaintiff's car over, along with other threatening shouts from the strikers. After some time, plaintiff left the scene and returned to his home. No hourly-rated employees were able to cross the picket line until August 22, 1951, when, with the aid of a large number of law enforcement officers, approximately 200 employees entered the plant and resumed work.
Frank W. Oakes, who was Industrial and Public Relations Director for the plant and who represented the management at a pre-strike meeting with the union, denied telling union officials that the plant would be closed to hourly-rated employees during the strike. Considering the evidence introduced by plaintiff, it was not error to refuse to direct a verdict for defendants.
Appellants assign as error the admission of testimony concerning events transpiring on August 22, 1951 over objection that such testimony was irrelevant, incompetent, immaterial and illegal for the reason that the pleading confined the issue to events occurring within a period which ended on August 21, 1951. The court admitted the evidence for the purpose of proving the allegations of Count 2 of the complaint which alleges a conspiracy to prevent plaintiff's engaging in his employment. The evidence was admissible for this purpose. In the recent case of Barber v. Stephenson, 260 Ala. 151, 69 So. 2d 251, 255, Mr. Justice Simpson, speaking for the court, said:
Under the above-stated principles, evidence of actions of the pickets on August *186 22, 1951 was clearly admissible to prove a conspiracy. On this theory it was also correct to admit evidence of an incident occurring on August 20, 1951, in which strikers used force to prevent a locomotive from pulling cars loaded with raw materials into the plant. All of the incidents have probative value toward the determination of whether or not a conspiracy existed on the part of the defendants.
The question is raised as to the admissibility of a motion picture film which the trial court allowed to be introduced into evidence over defendants' objection. The film purported to show action taking place on the picket line on the morning of August 22, 1951, which was the day plaintiff and others returned to work. The picture was taken by the witness McGregor who testified to facts tending to identify the film and verify it as a true representation of the action he saw on that occasion. He also testified as to the technical and mechanical features of producing the film and showing it to the jury in such a way as to accurately portray the events filmed. The introduction of the film was objected to on the grounds that it was a copy and not the original film, that it had been cut and edited, and that it was not a continuous picture, but had been taken at selected intervals during the morning.
The best evidence rule does not apply to this situation so as to make the copy inadmissible. The motion picture does not of itself prove an actual occurrence but the thing reproduced must be established by the testimony of witnesses. Decamp v. United States, 56 App.D.C. 119, 10 F.2d 984. The motion picture as exhibited to the jury is the pictorial communication of the witness' testimony and is used to convey the observations of the witness to the jury more fully and accurately than the witness can convey them verbally. Brown v. State, 186 Tenn. 378, 210 S.W.2d 670. The picture is not admissible unless a witness testifies that the picture as exhibited accurately reproduces the objects or actions which he observed. Pacific Mutual Life Ins. Co. of California v. Marks, 230 Ala. 417, 161 So. 543; City of Anniston v. Simmons, 31 Ala.App. 536, 20 So. 2d 52, certiorari denied 246 Ala. 153, 20 So. 2d 54; Louisville & Nashville R. Co. v. Sullivan, 244 Ala. 485, 13 So. 2d 877; Kansas City, Memphis & Birmingham R. Co. v. Smith, 90 Ala. 25, 8 So. 43; Alabama Trunk & Luggage Co. v. Hauer, 214 Ala. 473, 108 So. 339.
Where a witness testifies that the picture is an accurate reproduction of the matter it purports to portray, the fact that it is not the original film or that it has been cut to the extent of adding titles showing the time certain pictured events occurred does not necessarily make the film inadmissible. These matters affect the credibility and the weight to be given the picture by the jury.
There is no doubt that motion pictures are subject to change and falsification, as is the testimony of any witness, but protection against falsification or misrepresentation lies in the requirement of preliminary proof that the picture is an accurate reproduction of the event which it depicts and in the opportunity for cross examination of the witness making such proof. People v. Dabb, 32 Cal. 2d 491, 197 P.2d 1; Heiman v. Market Street Ry. Co., 21 Cal. App. 2d 311, 69 P.2d 178.
The objection that a motion picture film which does not show a continuity of action is misleading and therefore inadmissible is treated in McGoorty v. Benhart, 305 Ill.App. 458, 27 N.E.2d 289, in which the court held that where, as here, the photographer testified how the pictures were taken at intervals and at different times, the jury would not be misled.
The determination of the sufficiency of the preliminary proofs offered to identify the photograph or to show that it is an accurate representation of the objects which it purports to portray is a matter within the sound discretion of the trial court and will not be reviewable except for gross abuse. McKee v. State, 253 Ala. 235, 44 So. 2d 781.
*187 It is likewise a matter for the trial court in the exercise of his sound discretion to determine whether the motion picture will aid the jury or tend to confuse or prejudice the jury. Morris v. E. I. DuPont De Nemours & Co., 346 Mo. 126, 139 S.W.2d 984, 129 A.L.R. 352; State to Use of China v. United Railways & Electric Co. of Baltimore, 162 Md. 404, 159 A. 916, 83 A.L.R. 1307; Rogers v. City of Detroit, 289 Mich. 86, 286 N.W. 167; Denison v. Omaha & C. B. St. Ry. Co., 135 Neb. 307, 280 N.W. 905; Boyarsky v. G. A. Zimmerman Corp., 240 App.Div. 361, 270 N.Y.S. 134.
In this case, testimony showed that McGregor operated the motion picture camera taking the picture. He had been trained in photography and the exhibition of motion pictures. He sent the film to the Eastman Laboratory in Chicago to be developed as is the usual practice among those making industrial motion pictures. When it was returned to him, he cut off the unexposed portions on each end of the film and spliced in titles giving the time each pictured event occurred. The film was sent again to the Eastman Laboratory where the copy which was introduced was made. McGregor testified that the film introduced and shown in court is identical to the original, and depicts the objects and action exactly as he took it. McGregor also testified to other details of making and exhibiting the picture which were necessary to a proper foundation for admission of the film but which are unimportant to the question now before us. Captain C. M. Thorsen, of the Alabama Highway Patrol, who was on duty at the scene of the strike on August 22, 1951, also testified that the film as shown to the jury accurately portrayed the action he had observed there on that morning.
It does not appear that the trial judge abused his discretion by allowing this film to be introduced.
Charge No. 2, given at the request of plaintiff, is as follows:
This charge is not subject to defendants' ground of objection that it does not instruct that punitive damages may be awarded only if the acts of defendants were found to have been done willfully, wantonly, or maliciously. The charge predicates the awarding of punitive damages on a determination that plaintiff is entitled to a recovery. In order to determine that plaintiff is entitled to a recovery the jury must find that defendants' acts were willfully and maliciously done, since malice is an essential element of the cause of action alleged in plaintiff's complaint. Wherever malice is an ingredient of the cause of action, the plaintiff's recovery may include punitive damages in the sound discretion of the jury. Penney v. Warren, 217 Ala. 120, 115 So. 16.
Appellants further argue that the charge was erroneously given because it fails to instruct that punitive damages could be awarded only if the jury determined that plaintiff suffered actual damages. This argument is without merit for the subject is fully covered in the oral charge given by the judge. Such being the case, if any error existed, it is not reversible error. Marbury Lumber Co. v. Lamont, 198 Ala. 566, 73 So. 923; Western Union Telegraph Co. v. Gorman, 237 Ala. 146, 185 So. 743; McGough Bakeries Corp. v. Reynolds, 250 Ala. 592, 35 So. 2d 332. The oral charge also cured any possible defect in plaintiff's requested Charge No. 3, given by the court.
Appellants assign as error the giving of an unnumbered explanatory charge at the request of the plaintiff. *188 However, as the charge appears in the transcript of the record, it does not contain the endorsement by the judge as required by Sec. 273, Tit. 7, Code 1940, and, therefore, presents nothing for review. Appellants filed a motion to set aside submission and correct the record to show that the charge was actually properly endorsed by the judge. This motion is not granted for it would be unavailing to do so since the subject matter of the charge was fully and correctly covered in the court's oral charge.
Appellants argue that Charge No. 9, given at the request of plaintiff, authorizes the jury to find for plaintiff upon the basis that unlawful picketing alone is sufficient to create a cause of action. We are not convinced that the charge necessarily must be so construed. Where a charge is susceptible of two constructions, appellate courts will indulge the construction which will sustain rather than condemn. Birmingham Southern Ry. Co. v. Harrison, 203 Ala. 284, 82 So. 534; Alabama Consolidated C. & I. Co. v. Heald, 171 Ala. 263, 55 So. 181.
The refusal of the court to give defendants' requested charges numbered 40 and 28 are separately assigned as error and argued. The principles of law contained in these charges were covered in the court's oral charge and in charges given at the request of the defendants; therefore, the refusal to give these charges was not error. Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 633; Atlantic Coast Line R. Co. v. French, 261 Ala. 306, 74 So. 2d 266; City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259; Lackey v. Lackey, 262 Ala. 45, 76 So. 2d 761.
Charge 33, requested by defendants, is misleading in that it would deny recovery to plaintiff on Count 2 of the complaint if the jury should find that at some indefinite time prior to the strike the defendants believed or had reason to believe no work was available to plaintiff in the plant. Defendants' requested charges numbered 26 and 27 are subject to the same criticism.
Defendants' requested charges 3 and 36 were correctly refused as singling out and placing undue emphasis upon the evidence contained in interrogatories introduced by plaintiff. Huntsville Knitting Mills v. Butner, 200 Ala. 288, 76 So. 54; Lester v. Jacobs, 212 Ala. 614, 103 So. 682.
Defendants' counsel objected to asking defendants' witnesses Duncan and Starling on cross-examination what their salaries were as officials of defendant union. The testimony was allowed to be introduced by the trial judge as having a bearing on the credibility of the witnesses. It was within the discretion of the trial court to allow this testimony. Wide latitude is allowed on cross-examination to bring out facts tending to show bias on the part of a witness. The extent of such cross-examination is within the sound discretion of the trial court. Hackins v. State, 212 Ala. 606, 103 So. 468; Drummond v. Drummond, 212 Ala. 242, 102 So. 112; Ex parte Ford, 213 Ala. 410, 104 So. 840, granting certiorari Ford v. State, 20 Ala. App. 663, 104 So. 838.
Grounds 95 and 96 of defendants' motion for new trial contend that the following statements by plaintiff's counsel during his closing argument were so grossly improper and prejudicial as to be grounds for granting a new trial:
There was no objection to the argument at the time it was made. The question of the propriety of the argument *189 was raised for the first time in defendants' motion for a new trial. Therefore, in order to work a reversal, the argument must have been so grossly improper and highly prejudicial that, even if appropriate objection had been interposed, its influence could not have been counteracted by proper action. Birmingham Railway Light & Power Co. v. Gonzales, 183 Ala. 273, 61 So. 80, Ann.Cas.1916A, 543; Brotherhood of Railroad Trainmen v. Jennings, 232 Ala. 438, 168 So. 173. It does not appear that the arguments are so highly prejudicial and improper as to warrant a reversal. In fact, an argument very similar to the first one listed above was considered by this court in Tutwiler Coal, Coke & Iron Co. v. Nail, 141 Ala. 374, 37 So. 634, and was held to be proper.
The excessiveness of the verdict was assigned as grounds for new trial and argued on appeal. Where, as here, the verdict may include punitive damages, the imposition of such damages must be left to the discretion of the jury, whose judgment will not be interfered with unless the amount is so excessive as to show passion or prejudice, or some other improper sentiment. Key v. Dozier, 252 Ala. 631, 42 So. 2d 254; Abingdon Mills v. Grogan, supra; Powell v. Bingham, 29 Ala.App. 248, 196 So. 154, certiorari denied, 239 Ala. 515, 196 So. 160; Tennessee Coal, Iron & R. Co. v. Aycock, 248 Ala. 498, 28 So. 2d 417.
Considering that the jury was properly instructed as to punitive damages, and considering the nature of the wrong complained of, and the necessity of preventing similar wrongs, as the court in Coleman v. Pepper, 159 Ala. 310, 49 So. 310, said that we must do, the verdict in this case cannot be held to be excessive.
We find no reversible error in the record; therefore, this case should be, and is, hereby affirmed.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur. | March 22, 1956 |
56370f87-d6be-4dac-a79f-0638e4c17dda | Ex parte Governor Bob Riley and Robert L. Childree, comptroller of the State of Alabama. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Joint Fiscal Committee of the Alabama Legislature et al. v. Governor Bob Riley and Comptroller Robert Childree) | N/A | 1071702 | Alabama | Alabama Supreme Court | Rel 12/17/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071702
_________________________
Ex parte Governor Bob Riley and Robert L. Childree,
comptroller of the State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: Joint Fiscal Committee of the Alabama Legislature
et al.
v.
Governor Bob Riley and Comptroller Robert Childree)
(Montgomery Circuit Court, CV-08-900752)
PER CURIAM.
1071702
2
Bob Riley, Governor of the State of Alabama, and Robert
L. Childree, comptroller of the State of Alabama (hereinafter
referred to collectively as "the Riley defendants"), have
petitioned this Court for a writ of mandamus directing the
trial court to dismiss the complaint in the underlying case
against
them
for
lack of subject-matter jurisdiction.
Pursuant to this Court's order of September 23, 2008, the
plaintiffs in the underlying case, Hank Sanders and Roger
Bedford, members of the Alabama Senate; John Knight, a member
of the Alabama House of Representatives; and the Joint Fiscal
Committee of the Alabama Legislature (of which Sanders,
Bedford, and Knight are members)(hereinafter referred to
collectively as "the legislators"), were directed to file an
answer and briefs addressing the issue whether the underlying
case was ripe for judicial review, and all proceedings in the
trial court were ordered to be stayed during the pendency of
this Court's consideration of that issue. On November 18,
2008, the parties presented oral arguments to this Court on
that issue.
The underlying action arises from Governor Riley's veto
of § 4 of House Bill 328 ("H.B. 328"), the general-fund
1071702
3
appropriations bill for fiscal year 2009, enacted during the
2008 Regular Session of the Alabama Legislature. That section
provides, in pertinent part:
"Of the amounts appropriated in this act from
the State General Fund for the fiscal year ending
September 30, 2009, 17.75% of each appropriation is
conditioned upon the availability of funds in the
State General Fund, the recommendation of the
Director of Finance, and the approval of the
Governor with the exception of the following
appropriations from the State General Fund to the
following agencies:
"Alabama Medicaid
Agency
$622,478,155
"Alabama Department
of Public Health
$84,641,324
"Alabama Department
of Senior Services
$17,554,599
"Alabama Department
of Human Resources
$112,881,321
"Alabama Department of
Mental Health and
Mental Retardation
$143,258,026
"Department of Child Abuse
and Neglect Prevention $1,011,610
"The
above-listed
appropriations
shall
be
funded
in their entirety from the State General Fund in
[fiscal year] 2009. In the event funds are not
available
to
fully
fund
the
conditional
appropriations from the State General Fund made in
this section to other agencies, the Governor shall
apportion available funds in the General Fund
proportionately across-the-board to those agencies
for the fiscal year that ends September 30, 2009.
In the event revenue is not available to fund all of
these conditional appropriations, earmarked items
and line-item appropriations shall be released
1071702
The disparity in the October 30, 2008, date in a
1
preceding sentence and the October 15, 2008, date as the date
that Governor Riley certifies the amount of funds available
for conditional appropriations is not explained.
4
proportionately. On October 30, 2008, the Governor
shall certify to the Director of Finance and notify
the Chair of the Senate Finance and Taxation-General
Fund Committee, the Chair of the House Government
Appropriations Committee, and the Legislative Fiscal
Officer the amount of projected available revenue in
the State General Fund and the source of the
additional revenue available to fund all or any
portion of the conditional appropriations made in
this section. The conditional appropriations made
in this section from the State General Fund are
first priority conditional appropriations and shall
be released in their entirety before any other
conditional appropriations from the State General
Fund may be released. The amount of revenue
certified by the Governor on October 15, 2008
[sic],
to be available for the conditional State
[1]
General Fund appropriations made in this section
shall
be
the
amount
of
funds
allocated
proportionately to each agency for its operation
plan for [fiscal year] 2009."
1071702
Section 126 provides:
2
"The governor shall have power to approve or
disapprove any item or items of any appropriation
bill embracing distinct items, and the part or parts
of the bill approved shall be the law, and the item
or items disapproved shall be void, unless repassed
according to the rule and limitations prescribed for
the passage of bills over the executive veto; and he
shall in writing state specifically the item or
items he disapproves, setting the same out in full
in his message, but in such case the enrolled bill
shall
not
be
returned
with
the
governor's
objection."
5
On May 19, 2008, pursuant to Ala. Const. 1901, Art. V, §
126, Governor Riley sent a message to the legislature that he
2
was disapproving § 4 of H.B. 328:
"Beginning on page 128, line 10, by striking
through line 10 and each subsequent line, through
line 20, on page 128, and resuming on page 129, line
1, and striking through that line 1 and each
subsequent line on page 129, through line 23, and
resuming on page 130, line 1, strike through said
line and each succeeding line through line 7, thus
striking and deleting the entire section 4 of said
bill. This item, or these items, are both illegal
under the laws of the State of Alabama and
unconstitutional under the Constitution of the State
of Alabama. In the Alabama Constitution of 1901, as
amended, in Article XI, Section 213, there is a
specific constitutional requirement that the state
comptroller shall issue warrants for that proportion
of each claim which the money available for payment
of all claims bears to the whole, and such warrants
for such prorated sums shall thereupon be paid by
the state treasurer. This provision clearly imposes
a constitutional obligation on the state comptroller
to prorate, both across the board, proportionately
1071702
6
to all departments and agencies. Similarly, under
state law, Code of Alabama, § 41-4-90, requires the
governor,
in
the
event
the
estimated
budget
resources during the budget year are not sufficient
to pay all appropriations in full, to restrict
allotments to prevent an overdraft or deficit in any
fiscal year for which appropriations are made, by
prorating,
without
discrimination
against
any
department,
board,
bureau,
commission,
agency,
office, or institution of the state, the available
revenues among the various departments, boards,
bureaus,
commissions,
agencies,
offices,
and
institutions of the state. The law goes further to
more specifically state, 'in other words, said
appropriations shall be payable in such proportion
as the total sum of all appropriations bears to the
total revenues estimate by the Department of Finance
as available in each of said fiscal years.'
"The Legislature, in its appropriation bill,
House Bill 328, cannot supersede, change, alter, or
amend either this constitutional amendment or this
statutory
provision,
both
of
which
require
proportional proration among all recipients of state
funds in said appropriations bill.
"Although well intended, in the unfortunate
event
that
proration
becomes
necessary,
the
Legislature cannot provide, either constitutionally
or legally, special protection for any individual
agencies or departments of state government.
"For these reasons I have found it necessary to
line item veto said bill. I most sincerely
encourage you to agree with my disapproval of said
item, or items. Done this 19th day of May, 2008."
Section 126, Ala. Const. 1901, does provide that the
legislature may "repass" the vetoed item; however, Governor
Riley's message was delivered to the legislature on the last
1071702
7
day of the 2008 Regular Session of the Alabama Legislature. In
an affidavit filed with the trial court, Greg Pappas, the
clerk of the Alabama House of Representatives, testified that
at 11:54 p.m. on May 19, 2008, as a motion for adjournment
sine die was being made, he was given Governor Riley's message
vetoing § 4 of H.B. 328. The motion to adjourn was passed at
11:55 p.m. Thus, the legislature had no opportunity to
address Governor Riley's action while it was in session.
On July 21, 2008, the legislators sued the Riley
defendants in the Montgomery Circuit Court seeking declaratory
and injunctive relief. The complaint alleged, among other
things:
"The entire section vetoed by the Governor does
not
constitute
an
'item
or
items
of
any
appropriation bill embracing distinct items' as
required by Art. V, § 126, of the Constitution.
"The Governor does not have the power under §
126 or otherwise under the laws of Alabama to reduce
or increase particular items in the Bill, remove
substantive legislative policy or conditions from
the Bill, or add to the Bill.
"Governor Riley's message, in which he conveyed
his attempted item veto of Section 4 of HB 328 to
the Alabama House of Representatives, failed to set
out 'in full' the portion of HB 328 which he
attempted
to
veto,
contrary
to
the
express
provisions of § 126.
1071702
8
"The Governor otherwise violated §§ 42, 43, and
126 of the Constitution, as well as other applicable
provisions of law.
"Plaintiffs contend the action of the Governor,
allegedly taken pursuant to § 126, to veto Section
4 of HB 328 in its entirety, is unconstitutional,
null, void, and of no force or effect, and that
Section 4 is therefore due to be restored to the
Act.
"An actual, justiciable controversy exists
between the parties by virtue of the action of the
Governor allegedly made pursuant to § 126, in
vetoing Section 4 of HB 328 in its entirety.
"A declaratory judgment and other equitable
relief are appropriate under the circumstances to
declare the respective rights, liabilities, and
obligations
of
the
parties
and
to
protect
Plaintiffs' interests."
Based on these allegations, the complaint sought the following
relief:
"A. That [the Riley defendants] be made parties
to this action by appropriate legal process and be
required to answer or otherwise respond hereto in
the manner prescribed by the Alabama Rules of Civil
Procedure.
"B. That the court will require a copy of this
complaint to be personally served upon the Honorable
Troy King, Attorney General of the State of Alabama,
pursuant to § 6-6-227.
"C. That this court will set this matter for an
early hearing on [the legislators'] request for
Declaratory and Preliminary and Permanent Injunctive
Relief.
1071702
9
"D. That, upon such hearing, the court will
enter a declaratory judgment or decree determining
and directing the rights of the parties hereto with
respect to the matters set forth in this complaint,
and that in said judgment or decree this court will
declare that the attempted veto of Section 4 of HB
328 is unconstitutional, and otherwise null, void,
and of no force or effect, and will declare that the
appropriation of funds made by the legislature
pursuant to HB 328 is lawful and of full effect,
including Section 4, which was struck by the
Governor
in
his
unlawful and unconstitutional
attempt to exercise a veto pursuant to § 126 of the
Alabama Constitution of 1901.
"E. That, upon a hearing of this cause, [the
Riley defendants] and those acting in concert with
them be preliminarily and permanently enjoined and
restrained from acting inconsistently with HB 328 as
it was enacted by the legislature."
On August 25, the Riley defendants moved to dismiss the
complaint on grounds that the legislators lacked standing,
that the case was not ripe for review, that the case was not
justiciable, and that the legislators had failed to state a
claim upon which relief could be granted. On September 2,
2008, the legislators moved for a summary judgment. The trial
court denied the Riley defendants' motion to dismiss and set
a hearing for the legislators' summary-judgment motion on
September 24, 2008. The Riley defendants moved, pursuant to
Rule 5, Ala. R. App. P., for a certification to perfect a
permissive appeal to this Court and, alternatively, moved for
1071702
10
a stay of the hearing on the legislators' summary-judgment
motion pending review of a petition to this Court for a writ
of mandamus. The trial court denied both motions on September
19, 2008, and the Riley defendants filed this petition for the
writ of mandamus. This Court stayed all proceedings in the
trial court pending disposition of the Riley defendants'
petition.
Our standard for the appellate review of a petition for
a writ of mandamus is well settled:
"A writ of mandamus is an extraordinary remedy,
and it will be 'issued only when there is: 1) a
clear legal right in the petitioner to the order
sought; 2) an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; 3) the
lack of another adequate remedy; and 4) properly
invoked jurisdiction of the court.' Ex parte United
Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.
1993). A writ of mandamus will issue only in
situations where other relief is unavailable or is
inadequate, and it cannot be used as a substitute
for appeal. Ex parte Drill Parts & Serv. Co., 590
So. 2d 252 (Ala. 1991). It is well settled that 'a
writ of mandamus will not issue to review the merits
of an order denying a motion for a summary
judgment.' Ex parte Central Bank of the South, 675
So. 2d 403, 406 (Ala. 1996)."
Ex parte Empire Fire & Marine Ins. Co., 720 So. 2d 893, 894
(Ala. 1998). The sole issue before this Court is whether,
under the circumstances alleged in this petition, the
1071702
11
underlying case is ripe for review. The Riley defendants
asserted that because the underlying controversy is not ripe
for judicial review, they have a clear legal right to a writ
of mandamus from this Court directing the trial court to
dismiss the underlying case.
In a legal context,
"'[r]ipeness is defined as "[t]he circumstance
existing when a case has reached, but has not
passed, the point when the facts have developed
sufficiently to permit an intelligent and useful
decision to be made."' Ex parte Safeway Ins. Co. of
Alabama, Inc., [Ms. 1061613, February 29, 2008] ___
So. 2d ___, ___ n. 5 (Ala. 2008) (quoting Black's
Law Dictionary 1353 (8th ed. 2004))."
Martin v. Battistella, [Ms. 1070394, Nov. 26, 2008] ___ So. 2d
___, ___ (Ala. 2008). Courts generally restrain themselves
from addressing cases that have not reached the point of
ripeness. The United States Supreme Court has stated that the
basic rationale of the ripeness doctrine is "to prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements ...." Abbott
Labs. v. Gardner, 387 U.S. 136, 148 (1967). See also National
Park Hospitality Ass'n v. Department of the Interior, 538 U.S.
803, 807 (2003). Alabama cases often address ripeness in the
context of whether a case is justiciable, or appropriate for
1071702
12
judicial review. That is, the case must concern a dispute
that is "'"a real and substantial controversy admitting of
specific relief through a [judgment]."'" Ex parte Bridges,
925 So. 2d 189, 193 (Ala. 2005)(holding that declaratory
relief is not available for an "anticipated controversy"
(quoting Baldwin County v. Bay Minette, 854 So. 2d 42, 45
(Ala. 2003), quoting in turn Copeland v. Jefferson County, 284
Ala. 558, 561, 226 So. 2d 385, 387 (1969))).
In order to properly assess whether this case is ripe for
review, this Court must begin with two assumptions. First, we
assume that the legislative enactment of § 4 of H.B. 328 is
valid, and second, we assume that Governor Riley's veto of §
4 is invalid. In the context of a determination of ripeness,
and only in that context, we must determine whether, assuming
that the allegations in the legislators' complaint are true,
an actual, as opposed to an "anticipated," dispute has arisen
such that the trial court can meaningfully adjudicate claims
concerning the legislators' alleged claims of injury. Bridges
and Baldwin County, supra. The Riley defendants assert that
this case is not ripe for review because, they argue, the
conditions imposed by § 4 of H.B. 328 are triggered only if
1071702
13
general-fund revenues are insufficient to fully fund the
conditional appropriations. The Riley defendants assert that
Governor Riley's veto has not created an actual controversy
that is ripe for adjudication because, they say, nothing will
occur until the State allocates funds to sources that would
not have otherwise received such funds had § 4 survived.
Because, the Riley defendants contend, § 4 has effect only if
"funds are not available to fully fund the conditional
appropriations from the State General Fund" and that
determination has not been made, there is no actual dispute,
and the legislators' complaint is thus not ripe for review.
Although the legislators have advanced a number of
arguments as to why their case is ripe for review, we focus on
their assertion that a dispute presently exists because
budgetary planning for State agencies for fiscal year 2009 has
already begun, and State agencies have already calculated
budgets based on the amount of allocations they are to receive
pursuant to the redacted version of H.B. 328, i.e., the
version without § 4. The legislators note that because an
agency's allocations are made on the basis of that agency's
absolute
appropriation,
those
agencies
that
were
not
1071702
14
"protected" from proration under § 4 have already calculated
budgets based on the receipt of funds that exceeds what they
would receive if Governor Riley's veto is determined to be
unconstitutional. The legislators presented this argument to
the trial court and supported it with the affidavit of Joyce
Bigbee, the director of the Legislative Fiscal Office of the
Alabama Legislature. Bigbee, stated, in pertinent part:
"The fiscal year 2009 budget process is
underway. State agencies were required to submit an
operations plan to the Department of Finance by
August 1, 2008 detailing the proposed expenditure of
funds for the fiscal year. The effect of the
Governor's line-item veto of Section 4 of House Bill
328
is
to
increase
absolute
General
Fund
appropriations by a total of approximately $180
million. Agencies were instructed by the Department
of Finance to include this additional $180 million
in the operations plans they have submitted.
Expenditure of [fiscal year] 2009 appropriations by
state agencies will begin October 1, 2008. Indeed,
a
percentage
of
the
entire
(now
absolute)
appropriation will be allotted to the agencies on
October 1, 2008, and for most of the agencies, the
allotment will be at least 25% of the total
appropriation. For all of the agencies, the
allotment will be more than it would have been
without the Governor's veto."
Also before the trial court was the affidavit of William
D. Newton, assistant finance director for the State of
Alabama. He stated, in pertinent part:
1071702
15
"After the Legislature adjourned in May 2008,
state agencies were instructed to include in their
operating budgets the appropriations purportedly
made conditional by Section 4. These agencies and
departments relied on Governor Riley's veto of
Section 4 in planning their expenditures for Fiscal
Year 2009."
The legislators note examples of agency operational
funding showing that if an agency conducts its operations
based on a larger budget than will actually be available in
the
event
that
Governor
Riley's
veto
is
found
unconstitutional, the effect of the revival of § 4 later in
the fiscal year would have a significant impact on the
agency's ability to operate. This evidence supports the
conclusion that, if the legislators' claims are correct, State
agencies are presently spending funds for operations that are
not properly available for expenditure. The present
expenditure of agency operational funds means that those
agencies will not have those funds available for operations
later in the year. In most instances this will result in a
significant impairment of an affected agency's ability to
provide citizens those services the agency is obligated to
supply. In some instances, this present inability to
accurately determine operational budgets will result in the
1071702
16
cessation of important services later in the fiscal year. We
conclude that the legislators provided evidence to the trial
court that Governor Riley's veto created an actionable
dispute, i.e., evidence indicating that Governor Riley's
action required the legislature to fund State agencies as
though the appropriations affected by his veto were valid,
even though the legislators contend that H.B. 328 was
unconstitutionally limited by Governor Riley's veto.
For the purpose of assessing whether this case is ripe
for review, the legislators have shown that the Governor
Riley's veto of § 4 required State agencies to calculate their
operating budgets based on inaccurate funding information,
information that requires agencies to allocate for their
operations money that will not be available. Moreover, State
agencies are presently allocating and spending operating
expenses according to that inaccurate information. This is
not merely an "anticipated controversy." Bridges and Baldwin
County, supra. In the context of a ripeness determination,
Governor Riley's veto of § 4 immediately raises a dispute as
to whether those State agencies that are not protected under
§ 4 are presently operating on budgets that, if Governor
1071702
17
Riley's veto is held to be invalid, will exhaust their
available
funds
before
the
end
of
the
fiscal
year.
Accordingly, we hold that the trial court correctly denied the
Riley
defendants'
motion
to
dismiss
the
legislators'
complaint. Because the Riley defendants have no clear legal
right to such relief, the Riley defendants' petition for a
writ of mandamus is due to be denied.
PETITION DENIED.
Lyons, Woodall, Smith, Parker, and Murdock, JJ., concur.
Cobb, C.J., concurs specially.
See, Stuart, and Bolin, JJ., concur in the result.
1071702
18
Cobb, Chief Justice (concurring specially).
I concur in the main opinion. I write specially to note
that I also believe that this case became ripe for judicial
review on separate bases that are resolved on a purely legal,
as opposed to factual, analysis. Although these points of
legal analysis represent issues of first impression of the
jurisprudence of this State, they find strong support in the
majority of American jurisdictions.
First, I believe that the legislators suffered a legally
cognizable injury the moment Governor Riley vetoed § 4 of
House Bill 328 ("H.B. 328"). Assuming, only for the purpose
of analyzing the ripeness issue, that Governor Riley's veto
was
constitutionally
invalid,
that
veto
invalidated
the
lawful
votes of the legislators the moment it was entered. A similar
situation was addressed in Silver v. Pataki, 96 N.Y.2d 532,
755 N.E.2d 842, 730 N.Y.S.2d 482 (2001). In that case, the
speaker of the State Assembly for the State of New York
brought an action in his official capacity seeking a judgment
declaring that the governor's exercise of his line-item veto
1071702
The
Silver
court
noted
that
"[t]he
term
3
'non-appropriation' bill is not found in the [New York]
Constitution. These bills contain programmatic provisions and
commonly include sources, schedules and sub-allocations for
funding provided by appropriation bills, along with provisions
authorizing the disbursement of certain budgeted funds
pursuant to subsequent legislative enactment." 96 N.Y.2d at
535 n.1, 755 N.E.2d at 845 n.1, 730 N.Y.S.2d at 485 n.1.
19
power
with
respect
to
"non-appropriation"
bills
3
constitutionally invalid. Although couched in terms of
challenging the speaker's standing or "capacity to sue," the
governor's motion to dismiss asserted that the speaker lacked
the legal capacity to bring the action because the speaker had
suffered no injury, i.e., the speaker's case was not ripe for
judicial review because the speaker had suffered no legally
cognizable injury. The court's analysis makes this point as
follows:
"A plaintiff has standing to maintain an action upon
alleging an injury in fact that falls within his or
her zone of interest. 'The existence of an injury in
fact--an actual legal stake in the matter being
adjudicated--ensures that the party seeking review
has some concrete interest in prosecuting the action
which casts the dispute "in a form traditionally
capable of judicial resolution"' (Society of
Plastics Indus. v. County of Suffolk, 77 N.Y.2d
[761,] 772[, 573 N.E.2d 1034, 570 N.Y.S.2d 778
(1991)] [citation omitted]).
"Cases
considering
legislator
standing
generally
fall into one of three categories: lost political
1071702
20
battles, nullification of votes and usurpation of
power. Only circumstances presented by the latter
two categories confer legislator standing (see,
e.g., Coleman v. Miller, 307 U.S. 433 [(1939)]
[vote nullification]; Dodak v. State Admin. Bd.,
441 Mich. 547, 495 N.W.2d 539 [(1993)] [usurpation
of power belonging to legislative body]; cf.,
Raines v. Byrd, 521 U.S. 811 [(1997)] [no standing
to challenge lost vote]; Matter of Posner v.
Rockefeller, 26 N.Y.2d 970[, 311 N.Y.S.2d 15, 259
N.E.2d 484 (1970)] [same])."
96 N.Y.2d at 539, 755 N.E.2d at 847, 730 N.Y.S.2d at 487. In
considering
whether the
speaker had
suffered
an
actual injury,
the Silver court then noted:
"Here, plaintiff as a Member of the Assembly won
the legislative battle and now seeks to uphold that
legislative
victory
against
a
claimed
unconstitutional use of the veto power nullifying
his vote. If plaintiff's allegations are correct,
and at this point in the litigation we must assume
they are, the vetoed provisions were improperly
invalidated and should be in effect. Such a direct
and personal injury is clearly within a legislator's
zone of interest and unquestionably represents a
'"concrete and particularized"' harm (Raines [v.
Byrd], 521 U.S. [811], at 819 [(1997)] [citation
omitted]; accord, Dennis v. Luis, 741 F.2d 628,
630-631 [3d Cir. (1984)]; Fordice v. Bryan, 651 So.
2d 998, 1003 [Miss. (1995)]; Hendrick v. Walters,
865 P.2d 1232, 1236-1238 [Okla. (1993)]). As [the]
Supreme Court noted, plaintiff is not 'seeking to
obtain a result in a courtroom which he failed to
gain in the halls of the Legislature' (179 Misc.2d
315, 322, 684 N.Y.S.2d 858 [(1999)])."
96 N.Y.2d at 540, 755 N.E.2d at 848, 730 N.Y.S.2d at 488.
With respect to the idea of "capacity to sue," the Silver
1071702
21
court noted that "[n]o other jurisdiction in the nation has
held that an individual legislator lacks capacity to sue." 96
N.Y.2d at 539 n.4, 755 N.E.2d at 847 n.4, 730 N.Y.S.2d at 487
n.4.
Thus, in a situation precisely like the situation in
this case, where the legislators assert that the Riley
defendants injured them when Governor Riley entered his veto
by nullifying their votes on a bill that had passed, the
Silver court held that such a veto by a governor was an
actionable injury. Moreover, the court in Silver relied upon
precedent from the United States Supreme Court:
"As a Member of the Assembly who voted with the
majority in favor of the budget legislation,
plaintiff undoubtedly has suffered an injury in fact
with
respect
to
the
alleged
unconstitutional
nullification of his vote sufficient to confer
standing. The circumstances here are analogous to
those present in Coleman v. Miller, 307 U.S. 433
[(1939)]. In Coleman, the United States Supreme
Court recognized the standing of 20 members of the
Kansas
State
Senate
challenging
that
body's
ratification of an amendment to the Federal
Constitution when a 20-20 deadlock was broken by the
vote of the State's Lieutenant Governor. The Supreme
Court determined that the Senators had 'a plain,
direct and adequate interest in maintaining the
effectiveness of their votes' (id., at 438; see
also, Kennedy v. Sampson, 511 F.2d 430, 436 [D.C.
Cir. (1974)] [no more essential interest could be
asserted by a legislator than to vindicate the
effectiveness of his vote]. The Court explained
that the Senators' votes had been held for naught
because, if their allegations were correct, the
1071702
22
amendment would not have been ratified. Thus, the
legislators were sufficiently aggrieved--suffering
an injury in fact--to allow them to maintain the
action."
96 N.Y.2d at 540-41, 755 N.E.2d at 848-49, 730 N.Y.S.2d at
488-89 (footnote omitted).
I find the analysis in Silver persuasive. In light of
that analysis I conclude that the legislators here suffered a
legally significant injury that gave rise to a definite and
concrete controversy sufficient to ensure both that they had
standing to sue and that the issue they presented was ripe for
review under Alabama law at the time Governor Riley vetoed §
4. See Ex parte Bridges, 925 So. 2d 189 (Ala. 2005); Baldwin
County v. Bay Minette, 854 So. 2d 42 (Ala. 2003). At the time
Governor Riley exercised that veto, its effect was to
invalidate votes the legislators had cast on a bill that had
been passed by the Alabama Legislature. Because the
legislators have "'a plain, direct and adequate interest in
maintaining the effectiveness of their votes'" and because
Governor Riley's veto impaired that interest, this case is
ripe for judicial review in our courts.
In addition to Silver and the various state and federal
cases it discusses for the proposition that this case is ripe
1071702
23
for our review because the legislators' otherwise valid votes
were invalidated by Governor Riley's veto, other cases have
adopted a similar rationale for holding that judicial review
of a governor's use of a line-item veto is appropriate. For
example, in State ex rel. Ohio General Assembly v. Brunner,
114 Ohio St. 3d 386, 872 N.E.2d 912 (2007), the Supreme Court
of Ohio considered a case in which the Ohio General Assembly,
the president of the Senate, and the speaker of the House of
Representatives petitioned for a writ of mandamus to order the
Ohio Secretary of State to treat a bill that had passed the
legislature as a duly enacted law for purposes of her
statutory duties, when a successor governor attempted to veto
the bill after his predecessor had filed the bill in the
office of the Secretary of State. As did the New York court
in Silver, the Ohio court in Brunner cited Coleman v. Miller,
307 U.S. 433 (1939), to determine that the attempted
nullification
of
the
legislators'
votes
by
the
governor's
veto
was a legally cognizable injury that established their
standing to sue and, based on law analogous to that of this
State, see Bridges and Baldwin County, supra, caused their
legal action to be ripe for judicial review. More
1071702
24
significantly, the court in Brunner discussed the application
of Raines v. Byrd, 521 U.S. 811 (1997):
"The secretary of state cites Raines v. Byrd
(1997), 521 U.S. 811, 830, 117 S.Ct. 2312, 138
L.Ed.2d 849, in support of her request that this
court hold that the Senate president and Speaker of
the House lack standing. In Raines, the United
States Supreme Court held that individual members of
Congress
lacked
standing
to
challenge
the
constitutionality of the Line Item Veto Act because
they 'do not have a sufficient "personal stake" in
this dispute and have not alleged a sufficiently
concrete injury to have established Article III
standing.' Id.
"Raines, however, is not controlling. The
congressional members in Raines challenged the
constitutionality of legislation that had been
passed by Congress, which they had merely voted
against. Raines, 521 U.S. at 814, 117 S.Ct. 2312,
138 L.Ed.2d 849.
"Instead, this matter is akin to Coleman [v.
Miller, 307 U.S. 433 (1939)], which has been
interpreted as standing 'for the proposition that
legislators whose votes would have been sufficient
to defeat (or enact) a specific legislative Act have
standing to sue if that legislative action goes into
effect (or does not go into effect), on the ground
that their votes have been completely nullified.'
Raines, 521 U.S. at 823, 117 S.Ct. 2312, 138 L.Ed.2d
849. In this case, the Senate president and the
Speaker of the House voted for the bill at issue,
there were sufficient votes to pass the bill, and
their votes would in effect be nullified by the
governor's veto and the secretary of state's refusal
to treat the bill as a validly enacted law.
Therefore, we hold that the Senate president and the
Speaker of the House, as legislators who voted for
the bill, have the requisite standing to bring this
1071702
In Bennett, four legislators, the president of the
4
Senate, the speaker of the House, and the majority leaders of
both chambers, brought an action to the Arizona Supreme Court
challenging the governor's certain line-item vetoes of
provisions from four bills that constituted the state's
operating budget. The challenged veto struck certain budget
reductions that would have otherwise been required of
particular state agencies in their operations. In Bennett, the
court held that the legislators lacked standing to sue based
on reliance on Raines, supra, after concluding that the
legislators in their case were more akin to the legislators in
Raines.
The
court
in
Bennett
determined
that
the
effectiveness of the legislators' votes in their case was not
affected by the governor's vetoes and stated: "[T]here is a
vast difference between the level of vote nullification at
issue in Coleman and the abstract dilution of institutional
legislative power that is alleged here." 206 Ariz. at 526, 81
P.3d at 317. Under those circumstances the court in Bennett
found no particularized injury sufficient to vest standing in
the legislators.
25
mandamus action to prevent their votes from being
nullified."
114 Ohio St. 3d 390-91, 872 N.E.2d 918.
Brunner further supports the conclusion that this case is
ripe for review. Brunner makes clear that Raines is also
supportive of this conclusion in that Raines establishes that
had the members of Congress had their votes nullified as to a
bill that had passed, i.e., had they voted in favor of the
bill, they would have had the requisite standing, and their
cause would have been ripe for review. Cf. Bennett v.
Napolitano, 206 Ariz. 520, 81 P.3d 311 (2003).
4
1071702
26
Also supporting the conclusion that the legislators' case
is ripe for review are the cases of South Carolina Coin
Operators Ass'n v. Beasley, 320 S.C. 183, 464 S.E.2d 103
(1995), and State ex rel. Sundby v. Adamany, 71 Wis.2d 118,
237 N.W.2d 910 (1976). In Beasley, the Supreme Court of South
Carolina considered a challenge by the petitioner Coin
Operator's Association of the governor's line-item veto
striking parts of a section of an appropriations bill relating
to the regulation of video slot machines. The court held,
among other things, that the petitioner's challenge presented
a justiciable controversy that was ripe for judicial
determination even though the South Carolina General Assembly
had not yet attempted to override the veto.
In Sundby, the Supreme Court of Wisconsin considered a
taxpayer's action seeking a judgment declaring that the
governor's veto of portions of an appropriations bill was
unconstitutional. The court in Sundby held that the taxpayer
had standing, and the case was therefore justiciable and ripe
for review, because "the respondent secretary of the
department
of
revenue
is
administering
the
challenged
sections
of the appropriation bill as if the partial vetoes of the
1071702
27
governor are valid and effective." 71 Wis. 2d at 124, 237
N.W.2d at 913. Thus, the governor's veto, if exercised in
violation of the state
constitution,
would
directly
affect the
taxpayer's pecuniary interests. The rationale of Sundby also
provides additional support.
As discussed in the main opinion, a dispositive factor
for concluding that this case is ripe for adjudication is the
fact that State agencies have already begun to calculate their
budgets as if Governor Riley's veto of § 4 was valid.
Assuming, only for the purposes of the ripeness analysis, that
Governor Riley's veto was no valid, the effect of ignoring
this present issue until a shortfall, which is already
extremely probable, becomes a certainty will result in a
catastrophic reduction in the operating budgets of non-
protected State agencies with
the
likely result that essential
State services will be impaired or halted completely. The
effect on the pecuniary interests of the legislators as
individual taxpayers is at least as profound as the effect on
the taxpayer's pecuniary interests in Sundby. I believe that
the courts of this State can and should address this issue as
expeditiously as possible. | December 17, 2008 |
865f9ab1-4487-49bb-887a-ad9fe7bccf71 | Colquett v. Williams | 86 So. 2d 381 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 381 (1956)
J. F. COLQUETT et al.
v.
Jimmy D. WILLIAMS, pro aml.
4 Div. 844.
Supreme Court of Alabama.
March 22, 1956.
*382 Robt. B. Albritton, Albrittons & Rankin, Andalusia, for appellants.
Frank J. Tipler, Jr., Andalusia, for appellee.
MERRILL, Justice.
This is an appeal from a judgment of the Circuit Court of Covington County in the sum of $12,000 damages for personal injuries, *383 which was rendered in favor of appellee, plaintiff below. The cause was submitted on motion to dismiss the appeal and on the merits.
Appellee moves that the transcript of the record be stricken because it was not filed in compliance with Rule 37, Revised Rules, which rule, as applicable here, provides:
"* * * the transcript of the record shall be filed in this court within sixty days after the transcript of the evidence has been established in the court below." The ground for appellee's motion is that the transcript of the evidence was filed on June 27, 1955 and more than 60 days elapsed before the transcript of the record was filed in this court on September 2, 1955.
On July 5, 1955, appellants filed objections to the transcript of the evidence and to the record. With the objections was a motion to correct the record by adding certain alleged omitted matter. On July 6th, the court ordered the clerk to include certain specified matter in the transcript, and on July 8th, ordered the court reporter to certify certain additional proceedings, and at the same time denied appellants' motion to have incorporated in the record the argument of appellee's counsel to the jury.
That part of the act which is listed in the 1953 cumulative pocket part, Code of Alabama 1940, as Title 7, § 827(la) provides:
The apparent effect of this section is to extend the time in which the transcript must be filed. There is no conflict with Rule 37 because the transcript of the evidence was not established until the expiration of the ten day period, in which either party may interpose objections to the certified transcript. The transcript was not established until July 8, 1955 when the court ruled on the objections to the transcript of the evidence. The transcript of the record was filed in this court within sixty days after July 8; therefore appellee's motion to dismiss the appeal is without merit and is due to be, and is, denied.
Appellants insist that their case was tried in disregard of a mandate of this court to the trial court. This contention arises out of the following facts. After one continuance had been granted appellants, the cause was set for trial on April 5, 1955. On March 24, 1955, appellants propounded interrogatories to the appellee and to one Hair, who was originally a codefendant, but was stricken as such by appellee on March 28, 1955. On March 31, 1955 appellants filed a petition in this court praying that this court issue a Rule Nisi or an alternative writ of mandamus directed to the *384 Judge of the Circuit Court of Covington County commanding him to enter an order requiring the appellee and Hair to answer said interrogatories; or to appear and show cause why a peremptory writ of mandamus should not issue, etc., and for general relief.
This court granted the relief prayed for, and ordered all proceedings stayed pending compliance with the Rule Nisi. On April 2, the trial court ordered appellee and Hair to answer the interrogatories and they filed their answers on April 4th. The same day appellants filed a motion for a stay of proceedings and a motion to continue the cause. The grounds for each of these motions were that the mandate of the Supreme Court had not been complied with in that the answers to the interrogatories were not responsive, incomplete, evasive, and sought to inject matter prejudicial to the appellants. These motions were overruled. Appellants then filed motions to require appellee and Hair to make full answers to the interrogatories. The judge overruled this motion, stating that it was his opinion that the answers were full and complete, but did grant appellants' motions to strike certain answers or portions thereof.
We have examined carefully the interrogatories in question and the answers filed in reply thereto. We concur in the opinion of the trial court that the answers given constituted a sufficient compliance with the order issued by this court. Whether the answers to the interrogatories were sufficiently full is a matter of discretion with the trial court, Roll v. Howell, 9 Ala. App. 171, 62 So. 463, and it is the general rule that matters resting in the sound discretion of the court will not be disturbed on appeal unless there has been a clear abuse of discretion, Ex parte Jonas, 186 Ala. 567, 64 So. 960. See Ex parte Nolen, 223 Ala. 213, 135 So. 337; Sovereign Camp, W. O. W. v. Ward, 201 Ala. 446, 78 So. 824. There was no abuse of discretion by the trial court in his ruling on appellants' motion.
We have examined all of appellants' argued assignments of error relating to matters and rulings occurring prior to the trial and find no reversible error.
A condensation of the essential facts for an understanding of how the accident occurred follow. Appellant Wishum was an employee of appellant Colquett. Wishum, while acting in the line and scope of his employment, was driving Colquett's oil truck along East Three Notch Street in Andalusia in a westerly direction in the lane of traffic at a low rate of speed. Herman Hair's automobile was parked parallel to the curb, also headed west. The appellee, 15 years of age, was riding his bicycle along the street between the parked cars and the line of traffic. He, too, was going west. Just as he came abreast of Hair's automobile, Hair opened the left front door and appellee was knocked off his bicycle in front of, or even with, the oncoming oil truck. The front wheel of the truck did not touch appellee but the rear wheel ran over and crushed his leg. Appellee was not far from the back end of the truck when it stopped. As already stated, Hair had been dropped as a codefendant prior to the trial.
Assignments of error 22 through 32 deal with rulings on admission of evidence relating to defendant's insurance coverage.
On cross examination of defendant Wishum, the following occurred:
"Mr. Albritton: We object.
"The Court: Overrule it.
"Mr. Albritton: We except.
"A. You mean a signed statement?
"Q. Yeah, a signed statement.
"A. I can't call his name right now an insurance adjuster.
"The Court: Overrule your motion.
*385 "Mr. Albritton: We except."
That part of the answer "an insurance adjuster" was not responsive to the question and the motion to exclude should have been sustained. Then on re-direct examination appellants brought out that the insurance adjuster was representing Hair's insurance company. This evidence tended to cure any prejudicial effect of the error in not excluding the unresponsive answer. But on recross the following transpired:
"Mr. Albritton: We object.
"The Court: Overrule it.
"Mr. Albritton: We except and move to exclude it.
"The Court: Overrule it.
"The Court: Overrule your motion.
"Mr. Albritton: We except.
"Q. Do you have that statement? A. No, sir.
"Q. Do you know who it has been turned over to? A. No, sir.
"Mr. Albritton: We object again.
"The Court: Overrule it.
"The Court: Overrule your motion.
"Mr. Albritton: We except."
The questions concerning "your insurance company" were highly improper and prejudicial and the objections to them should have been sustained.
Assignment of error 22 is that "the court erred in failing to sustain appellants' objection to the following statement made by counsel for the appellee in the presence of the jury: `I haven't got a big company behind me'". This remark was improper and had no connection with the issues, either directly or indirectly, and should have been excluded, but, we are unable to ascertain from the record whether the appellants' objection was addressed to opposing counsel or to the court, and the trial court definitely states that "there was no appeal to the court to exclude that statement, nor was there any objection made that was addressed to the court". Thus, under our rules, no reversible error was committed.
It is next urged by appellants that remarks, statements and arguments of counsel for appellee during the course of the trial with reference to the insurance coverage of appellants "were not only objectionable but were so grossly improper and highly prejudicial that their evil influence could not have been eradicated from the minds of the jury by any admonition from the trial judge, even if he had sustained appellants' several objections and attempted to do so". This contention is the basis of numerous assignments of error and is also urged as grounds in their motion for a new trial.
The following transpired after the court below finished qualifying the jurors generally:
"The Court: What says the Plaintiff?
"The Court: Overrule it.
"Mr. Albritton: We except.
"The Court: Overrule it.
"Mr. Albritton: We except".
The court then proceeded to qualify the panel as requested, and, it might be added, one of the veniremen was an agent of Travelers Insurance Company.
The almost identical situation arose in Vredenburgh Saw Mill Co. v. Black, 251 Ala. 302, 37 So. 2d 212, 218, and this court found "no reversible error in the record". That case was followed in Wagnon v. Patterson, 260 Ala. 297, 70 So. 2d 244. The assignments of error directed at the court's rulings in the qualification of the jurors are not well taken.
The arguments made to the jury by the attorneys were recorded on a tape recorder. These arguments were not transcribed into the record by court reporter, but certain portions are set out in the opinion of the trial judge in his judgment overruling the motion for a new trial, and other portions are included in the testimony taken on the motion. During the course of his argument to the jury, counsel for appellants concluded as follows:
Counsel for appellee in reply, stated as follows:
Whereupon, the following colloquy took place:
"The Court: Overrule it.
"Mr. Albritton: And we except.
"Mr. Tipler: I was replying to what he said.
The record further reveals that during his argument to the jury, counsel for appellants made the following remarks:
Also, during his argument to the jury, counsel for appellee said:
Whereupon the following transpired
"The Court: What was it you said?
We are unable to agree with the contention of appellee that the above complained of arguments were proper replies in kind to arguments of counsel for appellants.
We are in accord with the opinion of the trial court that a logical inference to be drawn from the first quoted argument of counsel for appellants is an admonition to the jury "that by rendering a verdict for plaintiff they would be taking Tom Wishum's money and Buck Colquett's money out of a feeling of compassion." Pretermitting a consideration of the propriety vel non of these remarks or the inference logically drawn therefrom, we are still convinced that the statement of appellee's counsel was not proper reply in kind. The only logical inference we are able to deduce from his remarks is that appellee (the boy) is not trying to get appellants' money, but the money of their insurance company.
As to the last quoted argument of counsel for appellee wherein he stated "* * * wouldn't you feel that the people you paid to protect you should take care of this child in some way", we think the import thereof too obvious to require amplification. True, the trial court excluded any personal reference to any juror and admonished counsel in that respect, but made no mention or exclusion of the highly prejudicial part of the statement quoted in the preceding sentence.
In the case of Standridge v. Martin, 203 Ala. 486, 84 So. 266, 267, it was said:
We are aware of the fact that the objections interposed by counsel for appellants failed to point out the particular portion of the argument to which they were addressed by quoting or giving the substance of the objectionable remarks, but we think this case falls within the rule stated in Anderson v. State, 209 Ala. 36, 95 So. 171, 179:
See also Watts v. Espy, 211 Ala. 502, 101 So. 106; Metropolitan Life Ins. Co. v. Carter, 212 Ala. 212, 102 So. 130; Prudential Ins. Co. v. Calvin, 227 Ala. 146, 148 So. 837.
It is our opinion that neither retraction nor rebuke would have destroyed the strongly prejudicial suggestions that it was an insurance company and not appellants who should and would have to pay for appellee's injuries. Thus, there is manifest error in the record and the motion for a new trial should have been granted. It follows that the judgment should be reversed and the cause remanded.
Reversed and remanded.
LAWSON and GOODWYN, JJ., concur.
LIVINGSTON, C. J., concurs in the result but is of the opinion that the objections to the arguments in this case and the overruling of same, were sufficient for a reversal. | March 22, 1956 |
be90d589-c3ad-412d-8c8d-92a38ba3b25e | Cooper v. Perry County Board of Education | 86 So. 2d 832 | N/A | Alabama | Alabama Supreme Court | 86 So. 2d 832 (1956)
Carl COOPER
v.
PERRY COUNTY BOARD OF EDUCATION et al.
2 Div. 353.
Supreme Court of Alabama.
April 12, 1956.
*833 Geo. S. Brown and Crampton Harris, Birmingham, and Sheldon Fitts, Marion, for appellant.
LeMaistre, Clement & Gewin, Walter P. Gewin and Perry Hubbard, Tuscaloosa, for appellees.
SIMPSON, Justice.
This is an appeal from a judgment of the Circuit Court of Perry County denying appellant's petition for a peremptory writ of mandamus to be directed to the County Board of Education, the members of said Board, and the County Superintendent of Education, to reinstate appellant as a teacher. Appellant has attained "continuing service status" under the Teachers' Tenure Law, Tit. 52, § 351 et seq., Code of Alabama 1940, as amended.
On July 12, 1954, the Board of Education notified appellant that the Board would meet on August 11, 1954 to consider cancellation of appellant's contract as a teacher, giving as reasons therefor incompetency, insubordination, neglect of duty and other good and just causes. (See Code of Alabama 1940, Tit. 52, § 358, pocket part.) As evidence of the foregoing reasons for cancellation, the Board recited twenty-four specifications in the notice to the appellant. Appellant filed with the Board notice of an intention to contest the cancellation. A full hearing in which the appellant appeared and evidence was presented was held by the Board; on August 17, 1954, appellant was notified by the Board of its unamimous resolution cancelling appellant's contract. Appellant then filed a petition in the Circuit Court seeking a peremptory writ of mandamus. From the Circuit Court's final judgment denying the writ, this appeal followed.
While the Tenure Commission referred to in Title 52, Sections 360, 361, Code of Alabama 1940, as amended (providing for appeal from the Board's decision) has not been established nor is there any provision in the present Tenure Law expressly giving the right of review by mandamus, the Circuit Court properly entertained the petition for mandamus seeking to compel the County Board of Education to reinstate the appellant and from the final judgment denying the writ, this case is properly here by appeal. Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So. 2d 549.
Appellant insists, as we understand from his brief and argument, that the action of the Board of Education was (1) arbitrary and unjust in that it was taken for political and personal reasons; and (2) the action of the Board was arbitrary and unjust in that the existence of one or more of the statutory grounds for cancellation was unsupported by the evidence and the appellant was thereby denied due process of law.
The reasons given by the Board for cancelling appellant's contract are included in *834 those enumerated in § 358, Title 52, Code of Alabama 1940, as amended. The section reads:
The trial court found that the action of the Board in cancelling appellant's contract was in compliance with the provisions of Chapter 13 of Title 52, Code of Alabama 1940, as amended, and that such action was not arbitrarily unjust and was not unjust.
We would like to say at the outset that this court has held that the Teachers' Tenure Law meets the requirements of due process. Board of Ed. of Choctaw County v. Kennedy, 256 Ala. 478, 55 So. 2d 511.
In support of his contention that his contract was cancelled for political and personal reasons, appellant directs our attention to the fact that he ran for Superintendent of Education of Perry County in 1952; his opponent in the race was the present Superintendent of Education, L. G. Walker. Appellant argues that this was "when his troubles started; Mr. Walker wanted to get (the appellant) out of Perry County." The evidence shows, however, that the County Board of Education was, in May, 1954, requested to consider the cancellation of appellant's contract by the Trustees of the Perry County High School where the appellant was coach. Mr. Walker was not a member of the Board of Trustees. The action ultimately terminating the appellant's contract was unanimously taken by the members of the County Board of Education and while L. G. Walker as Superintendent of Education is Secretary and Executive Officer of said Board, he has no voting privilege on the Board. Tit. 52, § 69, Code of Alabama 1940. Nor is it insignificant that while the appellant ran for office in 1952, the cancellation of his contract occurred in 1954.
No evidence was presented of a personal difficulty or disagreement between the appellant and the County Board of Education or between the appellant and the Board of Trustees. In fact, the appellant testified in substance that he and the members of the County Board had been friendly throughout his time there and the appellant also stated that the members of the Board of Trustees had been kind to him.
It appears that one N. P. Benton served as Principal of Perry County High School from 1950 until 1953; upon his resignation, one Dr. J. S. Burbage was hired to replace him. Appellant insists that the Superintendent of Education, Walker, attempted to get Benton to suggest cancellation of appellant's contract and, being unsuccessful, Dr. Burbage was hired to "get rid of" the appellant. We are not impressed with this argument; Benton was not released by Walker nor indeed by anyone; Benton resigned. Walker was not, therefore, responsible for the leaving of the man who, according to the appellant, would not suggest cancellation of the appellant's contract. The evidence also shows that Dr. Burbage had never met Walker until he was interviewed for the job. On the hearing and as a witness for the appellant, Benton testified that one of the reasons he left was because of a disagreement with and an unpleasant relationship with the appellant.
In Williams v. Board of Education of Lamar County, 263 Ala. 372, 82 So. 2d 549, 551, this court referred to the applicable rules for reviewing decisions of school boards rendered pursuant to Teachers' Tenure Acts as follows:
We conclude that the evidence does not support appellant's contention that his contract was cancelled for political or personal reasons.
Appellant's second contention that the action of the Board was arbitrarily unjust, in that the statutory and specified grounds for cancellation are not supported by the evidence, will be treated in the light of the foregoing guiding rule.
While no attempt will be made to set out all the evidence which tends to support the grounds for cancellation, the following will suffice to show that the trial court did not commit error in holding that the action of the Board was not arbitrary, etc.
The appellant was charged with neglect of duty; the evidence, although conflicting, showed that on several occasions the appellant was absent from his classes and could not be found on the school campus; the class over which the appellant had charge could be found, but the appellant was not with them. On another occasion, and at a time when the schedule of classes called for appellant to be teaching a science class in a particular room, the class was located around the football field cleaning up the grandstands and doing the manual labor of getting the football field prepared for a game.
Other grounds which were assigned by the Board and which are specified in § 358, Tit. 52, Code of Alabama 1940, as amended, as proper grounds for the cancellation of the contract of a teacher were insubordination, incompetency and "other good and just cause." The latter term has not been defined by the Courts of Alabama. The Supreme Court of Indiana in Stiver v. State ex rel. Kent, 211 Ind. 380, 1 N.E.2d 1006, 1008, 7 N.E.2d 183, interpreted the term "other good and just cause" as used in the Teachers' Tenure Law, to include any cause which bears a reasonable relation to the teacher's fitness or capacity to discharge the duties of his position. That Court held that "`lack of co-operation'" is legal cause within the provision "`other good and just cause.'"
The Alabama statutory grounds for removal are almost identical with those in Indiana and were considered by the Indiana Court in Stiver v. State ex rel. Kent, supra. Indiana Acts 1927, c. 97.
This Court, in Faircloth v. Folmar, 252 Ala. 223, 40 So. 2d 697, cited with approval decisions of the Indiana Court interpreting the meaning of terms in the Teachers' Tenure Law. In fact, the Stiver case, supra, was cited by this Court in Faircloth v. Folmar, supra.
The evidence showed that two principals of the high school resigned; in each case one of the reasons for the resignation was the unpleasant relationships with the appellant. On the occasion of the first meeting between Dr. Burbage, the principal, and the appellant, following the former's appointment as principal, the appellant informed Dr. Burbage that he, the appellant, was better qualified to be the principal. Appellant stated to the principal that if permission were not given to him to use the school bus on a certain occasion on the appellant's terms and conditions, then he, the appellant, would go out in the community, inform the people and secure from the community nonsupport for action of the principal. On another occasion the appellant, in a loud voice and within the hearing distance of appellant's classroom of students, asserted to the principal that he would like to argue about a school policy with the principal. The appellant criticized the management of the school by the principal to a member of the Board of Trustees; the appellant stated to said member of the Board that the principal was critical of him and the other members of the Board. It also appears that as a result of the appellant's statement to the students that the football team had to pay the band to get them to play, a disturbance or *836 dissension was caused among the students. Certain moneys were, in fact, transferred from the game receipts to the band fund.
Much of the foregoing evidence was in sharp conflict. We will not lengthen this opinion by a further recital of other evidence tending to support the grounds for cancellation, but the above suffice to show that the grounds for cancellation were sufficiently supported by the evidence within the aforementioned rule of review to require an affirmance of the judgment of the trial court.
Affirmed.
LAWSON, GOODWYN and MERRILL, JJ., concur. | April 12, 1956 |
dfbee8c4-18d3-4cbd-ad5b-f12a3ffc1276 | Brown v. Huckabaa | 89 So. 2d 180 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 180 (1956)
John Mark BROWN
v.
W. O. HUCKABAA.
4 Div. 883.
Supreme Court of Alabama.
August 2, 1956.
*181 Baldwin & Baldwin and Murphy & Murphy, Andalusia, for appellant.
Ralph Clark, Andalusia, for appellee.
PER CURIAM.
This is an appeal by complainant from a final decree in equity denying him a permanent injunction to prohibit respondent from cutting timber on a certain forty acres of land in Covington County.
Complainant purchased the land from Hinton Bogan who purchased it from R. I. Hart, and respondent claimed the right to cut the timber under a prior deed from Hart. The timber deed was on record when the others purchased the land.
This controversy is controlled by a construction of the timber deed, which is dated September 29, 1945, and conveyed to respondent "all the merchantable timber now standing and growing upon the following described land" etc., describing it, with the right of ingress, egress and regress. It was also agreed that respondent "be allowed ten years if necessary from the date hereof within which to cut and remove said timber herein conveyed". During the next year respondent entered upon the land and cut timber until he saw fit to stop. Complainant claims that he cut all the merchantable timber there was on the land. Last year respondent went back upon the land and proposed to cut more timber within the ten year period. He claims there is considerable timber on the land which was merchantable on September 29, 1945 and which he proposed to cut. He claims some of it is merchantable saw logs and a larger amount of it is merchantable pole timber.
The trial court found and held that "merchantable timber" as recited in the deed includes merchantable pole timber as well as merchantable saw timber, and also found that there is some timber now on the land which was merchantable saw timber on September 29, 1945, but did not undertake to find just how much there is. The trial judge dissolved the temporary injunction, and the ten years having expired pending this suit, after which respondent was prohibited from cutting, the judge allowed six months time in which to remove both the saw timber and pole timber which was merchantable on September 29, 1945.
Neither the original nor cross bill alleges that the description of the timber is ambiguous due to facts and circumstances then existing and makes no allegation that the description is erroneous or incomplete, and seeks no reformation of it. It is particularly true that there is no allegation in the pleading nor effort to prove that the term "merchantable timber" has a meaning in that section of Alabama different from its ordinary import: although the law permits such a showing when justified by the facts (since timber sometimes has an enlarged and sometimes a restricted meaning). W. T. Smith Lumber Co. v. Jernigan, 185 Ala. 125, 64 So. 300.
The description has been held ambiguous on its face when it is "`all of *182 the pine timber and trees of every kind and description.'" Williams v. Johns-Carroll Lumber Co., 238 Ala. 536, 192 So. 278, 279; Nettles v. Lichtman, 228 Ala. 52, 152 So. 450, 91 A.L.R. 1455. The right to aid such a description does not permit evidence of prior or contemporaneous verbal negotiations and conversations: they are merged into the writing. But that does not conflict with the further principle that when the language is ambiguous the intention of the parties may be ascertained by a consideration of the surrounding circumstances existing at the time of the execution of the instrument. Williams v. Johns-Carroll Lumber Co., supra. There was some evidence given by Hart, the grantor in the deed to respondent, that he mentioned to Wiggins, who negotiated the sale for respondent, something about "light poles" as well as "sawmill stuff". Further explanation is not offered. That evidence served no purpose in this controversy. There was no other evidence of that sort nor any other sort to shed light on the meaning of the words used.
Therefore, it is the duty of the court to construe the meaning of "merchantable timber" from the "four corners" of the deed. When so, our cases have long held that such words mean timber suitable for being manufactured into lumber for building and like purposes at the time of the execution of the deed. Roanoke-Goodwater Pine Co. v. Cosby, 255 Ala. 435, 51 So. 2d 885; W. T. Smith Lumber Co. v. Jernigan, supra; Gulf Yellow Pine Lumber Co. v. Monk, 159 Ala. 318, 49 So. 248. Webster defines timber as "wood suitable for use in buildings, carpentry, etc., whether in the trees or cut and seasoned". 91 A.L.R. 1462 et seq., and 54 C.J.S., Logs and Logging, § 1, p. 672, generally use that definition in substance.
It follows that we cannot agree with the trial court in the interpretation of the deed in question. Its decree should be reversed and one here rendered making the injunction permanent except as to such trees now on the forty acres in question as on September 29, 1945 were suitable for being manufactured into lumber for building and like purposes, as herein declared. The trial court found there are some trees but does not identify or further describe them. The cause should be remanded to the circuit court in equity with direction to order a reference to the register to determine what trees now standing, if any, were on September 29, 1945 merchantable timber as herein defined. The register should mark the same, if he finds any, and make his report to the circuit court for consideration. When that court finally finds and marks such trees, if there are any, it should decree that the time in which respondent may cut and remove them be extended beyond the date of the final decree by a time equal to that which elapsed between the date of the issuance of the injunction (April 30, 1955) and the end of the ten year period fixed by the contract (September 29, 1955), during all of which period the injunction was in effect: that is, five months after the date of the final decree which will be made. Shubert v. Lacy, 257 Ala. 629(9), 60 So. 2d 442.
The decree should be reversed and rendered in part and the cause remanded with instructions.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and rendered in part and remanded with instructions.
LIVINGSTON, C. J., and LAWSON, STAKELY and MERRILL, JJ., concur. | August 2, 1956 |
9d09d0a3-6198-4741-8138-c985833dbe73 | Rebecca Jean Henriksen v. Charles Glenn Roth, D.M.D., P.C., and the estate of Charles Glenn Roth | N/A | 1060875 | Alabama | Alabama Supreme Court | REL:12/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1060875
____________________
Rebecca Jean Henriksen
v.
Charles Glenn Roth, D.M.D., P.C.,
and the estate of Charles Glenn Roth
Appeal from Mobile Circuit Court
(CV-02-2790)
MURDOCK, Justice.
Rebecca Jean Henriksen, the plaintiff below, appeals from
a judgment entered on a jury verdict in favor of the estate of
Dr. Charles Glenn Roth and the professional corporation
1060875
Dr. Roth died during the pendency of the proceedings in
1
the present case. Dr. Roth's estate was substituted as a
party. See Rule 25(a), Ala. R. Civ. P.
2
Charles Glenn Roth, D.M.D., P.C. ("the Roth defendants"), in
an action asserting claims under the Alabama Medical Liability
Act in relation to a dental procedure Dr. Roth performed on
Henriksen. Henriksen contests rulings by the trial court on
judicial estoppel and rulings in which the trial court
accepted a jury charge requested by the Roth defendants and
rejected a jury charge requested by Henriksen. We affirm.
I. Facts and Procedural History
Henriksen began seeing Dr. Roth as her dentist in May
1
1992, and, except for 1996, maintained regular appointments
with him every year until 2000. Henriksen testified that she
had not been aware of any injuries sustained by Dr. Roth
during that period and that she never noticed him laboring
under any pain or impairment of his faculties when he attended
to her. On August 23, 2000, Henriksen went to see Dr. Roth
about a particular tooth that was giving her trouble. He re-
cemented a temporary bridge he had originally installed in
1998 and advised Henriksen that a root canal would be
necessary. On Thursday, August 24, 2000, Dr. Roth performed
1060875
3
the root canal on Henriksen's tooth. Henriksen experienced
discomfort in the area over the following weekend, and on
Sunday, August 27, 2000, she telephoned Dr. Roth to inform him
of the pain. He advised her to come into his office the
following morning so he could evaluate the situation.
The next day, August 28, 2000, Henriksen came in for her
scheduled appointment; she was accompanied by Mr. Henriksen.
According to Henriksen, Dr. Roth told Mr. Henriksen that
everything would be fine, so he left her at Dr. Roth's office.
Henriksen testified that Dr. Roth told her that he would look
at the area, and he placed her under nitrous-oxide sedation.
Dr. Roth then performed either an apicoectomy or a boney
trephination.
Henriksen's dental expert, Martha Wallace, testified that
in her opinion the surgery Dr. Roth performed on Henriksen was
an apicoectomy, which is the removal of the root tip of an
abscessed tooth and the surrounding infected tissue. Dr.
Roth's dental expert, Gerard Weinacker, testified that in his
opinion Dr. Roth performed a boney trephination, which
involves creating an opening by puncturing the soft tissue and
the cortical bone overlaying the apex of the root tip of the
1060875
4
tooth in order to allow drainage to prevent infection inside
the jawbone. The important distinction between the two, for
purposes of this case, is that a boney trephination is an
emergency procedure because the oral infection is potentially
fatal, while an apicoectomy is not considered an emergency
surgery.
Henriksen testified that Dr. Roth did not tell either her
or Mr. Henriksen that he was going to perform a surgical
procedure, and she claimed he did not obtain consent from
either of them to do so. She testified that the next thing
she remembered after being placed in the dentist chair and
being administered nitrous oxide was her husband coming back
to the dental office late in the day to take her home.
Henriksen testified that several days later she began to
experience severe pain, numbness, and tingling on the right
side of her face, the side on which the surgery had been
performed. Henriksen returned to Dr. Roth for a follow-up
visit during which he related to her that the pain and
numbness were temporary and that the area was "healing well."
Henriksen claims, however, that the pain and numbness did not
subside and that she sustained permanent nerve damage to the
1060875
Dr. Roth presented expert testimony and evidence
2
disputing both the cause and the permanence of Henriksen's
condition.
Dr. Roth died before his deposition could be taken in the
3
present case.
5
right side of her face. Her treating physician for the pain,
Dr. Lee Irvin, testified by deposition that in his opinion
there was "a reasonable degree of medical probability" that
the surgery performed by Dr. Roth caused Henriksen's medical
problem.2
Henriksen sued Dr. Roth and his professional corporation
on August 23, 2002, alleging negligence and wantonness
regarding the August 28, 2000, surgery. Dr. Roth subsequently
became ill and died on June 5, 2004, of complications related
3
to HIV/AIDS. Henriksen subsequently amended her complaint to
substitute Dr. Roth's estate as a defendant and to add claims
related to Dr. Roth's contraction of HIV/AIDS, claims the
trial court later dismissed on summary judgment. Ultimately,
Henriksen argued at trial that Dr. Roth had breached the
standard of care applicable to practitioners of general
dentistry under the Alabama Medical Liability Act in three
ways: (1) he failed to refer her to a specialist for the
surgery; (2) he failed to provide Henriksen with material
1060875
6
information concerning the risks of the surgery, specifically
the risk of possible nerve damage and thus failed to obtain
informed consent for the surgery; and (3) he failed to
disclose his medical situation to her.
Before the trial, Henriksen filed a motion invoking the
doctrine of judicial estoppel, arguing that the Roth
defendants should be estopped from contending that Dr. Roth
was not disabled when he performed the surgery. The motion
was based on injuries sustained by Dr. Roth before Henriksen's
surgery and litigation Dr. Roth had engaged in against his
insurance company regarding those injuries. Specifically, in
February and March 1995, Dr. Roth was involved in two
accidents that resulted in injuries to his neck. At that
time, Dr. Roth had been working full-time as a dentist for 10
years, but the injuries forced him to start working part-time
(30-40 hours per week). Dr. Roth received pain-management
treatment from March 1995 to August 1998 for the injuries, but
his condition worsened.
On September 21, 1998, Dr. Roth applied for disability
benefits under his employment-insurance policy with Provident
Life Insurance Company ("Provident"). In the letter applying
1060875
The Roth defendants contend that the letter and other
4
evidence reflect that Dr. Roth requested residual disability
benefits from the date of the second accident forward and
total-disability benefits from September 3, 1998, through
September 21, 1998, a period during which Dr. Roth had to stop
working completely because of the pain caused by his injuries.
Henriksen contends that the letter and other evidence
indicates that Dr. Roth was requesting total-disability
benefits from the date he sustained his second injury to the
date of the letter.
7
for the benefits, Dr. Roth explained his injuries and the fact
that he was working only part-time and that he believed his
condition met the "policy definition of total and/or residual
disability." On an accompanying form, Dr. Roth described the
4
limitations on his practice caused by his injuries:
"Because of the pain resulting from my injury,
I am unable to sit in the positions required to
perform dental procedures for any extended period of
time. Bending and craning of the head and neck to
visualize the operative field causes pain, the
positions which the arms must be held in to perform
t h e s e
p r o c e d u r e s
e x a c e r b a t e s
t h e
numbness/neurological deficit in my hand, and the
chronic pain has destroyed my ability to handle
other
aspects
of
the
practice,
including
practice-building, oversight and management of the
personnel. Even my ability to handle simple things
like
diagnosis
and
treatment
planning
are
compromised by my narrowed ability to concentrate."
In support of Dr. Roth's disability claim, one of his treating
physicians, Dr. John McAndrew III, filed a statement in which
1060875
In the present case Dr. McAndrew testified, in reference
5
to Dr. Roth's condition at that time, that he (Dr. McAndrew)
did not feel he had "worked [Dr. Roth] up vocationally enough
to make a hard determination" that Dr. Roth was truly unable
to practice dentistry any longer. In fact, Dr. McAndrew
testified that Dr. Roth maintained his practice on a part-time
basis by working less and taking frequent breaks during each
day.
8
he stated that he had advised Dr. Roth "not to practice
general dentistry any longer."
5
Provident denied Dr. Roth's disability claim in February
1999, contending that Dr. Roth's disability was the result of
a pre-existing condition. Subsequently, Dr. Roth sued
Provident for allegedly improperly denying his disability
claim. In the complaint, Dr. Roth alleged that he filed the
disability claim because, as of September 1998, he "was no
longer able to perform the substantial and material duties of
his occupation." In his deposition for that case, however,
Dr. Roth testified that he continued to perform all of his
dental duties after the accidents as he had done before the
accidents, albeit on a part-time basis, with the exception
that he no longer performed total-mouth reconstructions
because of the length of those procedures. Dr. Roth and
Provident
entered
into
a
confidential
settlement
in
December 2004 that ended the litigation, but the settlement
1060875
9
agreement stated that the settlement did not constitute an
admission of liability by Provident. The trial court denied
Henriksen's motion invoking the doctrine of judicial estoppel.
At the close of the evidence, the parties submitted
various requested jury charges. One of Henriksen's requested
jury charges concerned Dr. Roth's failure to obtain consent
for the surgery. Henriksen's requested jury charge provided:
"Plaintiff, Rebecca Henriksen, alleges that
Glenn Roth, DMD, performed a surgical procedure on
Plaintiff to which she did not consent. A medical
procedure performed without the consent of a patient
constitutes an assault and battery or a trespass to
the person. If you find that Rebecca Henriksen did
not consent to the August 28, 2000 procedure
performed by Glenn Roth, DMD, then Glenn Roth, DMD,
is liable for all damages proximately caused by the
performance of the procedure or procedures to which
Rebecca Henriksen did not consent."
The trial court rejected Henriksen's requested jury charge on
the ground that the requested charge was "virtually subsumed"
by the lack-of-consent charge the trial court did read to the
jury. The lack-of-consent charge the trial court gave to the
jury provided:
"A doctor may not treat a patient without the
consent or permission of the patient. When the
patient is unable to give permission, a doctor must
obtain permission from someone authorized to give it
for the patient."
1060875
10
In addition, Henriksen objected to a jury charge
requested by the Roth defendants concerning emergency medical
treatment. The requested jury charge on emergency medical
treatment provided:
"When
an
emergency
requires
immediate
treatment,
a doctor is not required to get permission to treat
the patient if it is impossible or impractical to
get permission and a delay would cause harm to the
patient's life or health.
"When a doctor finds medical conditions that
could not reasonably have been known before the
treatment, and it is impossible or impractical to
obtain permission, a doctor is not required to get
permission to give additional or different treatment
if a delay would cause harm to the patient's life or
health."
The trial court gave the Roth defendants' requested jury
charge over Henriksen's objection.
The jury returned a verdict in favor of the Roth
defendants on all claims. Henriksen appeals from the judgment
entered on that verdict, taking issue with the trial court's
denial of Henriksen's judicial-estoppel motion, the trial
court's refusal to give Henriksen's requested instruction on
lack of consent, and the trial court's refusal to sustain
Henriksen's objection to the Roth defendants' requested jury
instruction on emergency medical treatment.
1060875
11
II. Standard of Review
Henriksen urges this Court to apply a de novo standard of
review regarding the trial court's refusal to grant her
judicial-estoppel motion, arguing that the issue is purely a
question of law. The Roth defendants urge this Court to
employ an abuse-of-discretion standard of review, noting that
Alabama law provides trial courts with considerable discretion
concerning equitable remedies and observing that the United
States Court of Appeals for the Eleventh Circuit reviews such
rulings applying that same standard. See Transamerica
Leasing, Inc. v. Institute of London Underwriters, 430 F.3d
1326, 1331 (11th Cir. 2005).
This Court has not determined what standard of review
ordinarily applies to a trial court's decision on an issue
involving judicial estoppel. This Court need not decide the
issue in this case, however, because the result is the same
regardless of the standard applied.
As to the issues raised regarding jury charges,
"a party is entitled to have its case tried to a
jury that is given the appropriate standard by which
to reach its decision, and a wrongful refusal of a
requested jury charge constitutes a ground for a new
trial. See C.I.T. Financial Services, Inc. v.
Bowler, 537 So. 2d 4 (Ala. 1988). An incorrect,
1060875
12
misleading, erroneous, or prejudicial charge may
form the basis for granting a new trial. See Nunn
v. Whitworth, 545 So. 2d 766 (Ala. 1989)."
Shoals Ford, Inc. v. Clardy, 588 So. 2d 879, 883 (Ala. 1991).
Moreover, this Court "must look to the total effect of the
entire charge to see if there is reversible error." Taylor v.
Owen, 294 Ala. 543, 546, 319 So. 2d 672, 674 (1975).
III. Discussion and Analysis
A. Judicial Estoppel
Henriksen contends that the trial court erred in denying
her motion and allowing the Roth defendants to take the
position at trial that Dr. Roth was not disabled at the time
he performed the surgery on her. She argues that Dr. Roth's
position
in
his
action
against
Provident
is
clearly
inconsistent with his position in this case and that, under
the doctrine of judicial estoppel, the Roth defendants should
have been prevented from taking that inconsistent position.
Henriksen is correct that the doctrine of judicial
estoppel "'"applies to preclude a party from assuming a
position in a legal proceeding inconsistent with one
previously asserted."'" Ex parte First Alabama Bank, 883
So. 2d 1236, 1241 (Ala. 2003) (quoting Jinright v. Paulk, 758
1060875
13
So. 2d 553, 555 (Ala. 2000), quoting in turn Selma Foundry &
Supply Co. v. Peoples Bank & Trust Co., 598 So. 2d 844, 846
(Ala. 1992)).
"The purpose of judicial estoppel is '"to protect
the
integrity
of
the
judicial
process"
by
"prohibiting parties from deliberately changing
positions according to the exigencies of the
moment."' New Hampshire v. Maine, 532 U.S. 742,
749-50, 121 S.Ct. 1808, 149 L.Ed. 2d 968 (2001)
(quoting Edwards v. Aetna Life Ins. Co., 690 F.2d
595, 598 (6th Cir. 1982), and United States v.
McCaskey, 9 F.3d 368, 378 (5th Cir. 1993))."
Middleton, 979 So. 2d at 59.
"In Ex parte First Alabama Bank, [883 So. 2d 1236 (Ala.
2003),] this Court 'embrace[d] the factors set forth in New
Hampshire v. Maine[, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.
2d 968 (2001),] and join[ed] the mainstream of jurisprudence
in dealing with the doctrine of judicial estoppel.'"
Middleton, 979 So. 2d at 60 (quoting Ex parte First Alabama
Bank, 883 So. 2d at 1246). For the doctrine of judicial
estoppel to apply (1) "a party's later position must be
'clearly inconsistent' with its earlier position"; (2) "the
party [must have] succeeded in persuading a court to accept
that party's earlier position, so that judicial acceptance of
an inconsistent position in a later proceeding would create
1060875
14
'the perception that either the first or the second court was
misled'"; and (3) the party seeking to assert an inconsistent
position must "derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped." New
Hampshire, 532 U.S. at 750-51 (citations omitted). See
Middleton, 797 So. 2d at 60-61; Ex parte First Alabama Bank,
883 So. 2d at 1244-45.
Henriksen contends that Dr. Roth's position in his case
against Provident that he was "totally disabled" is "clearly
inconsistent" with the Roth defendants' position in this case,
i.e., that Dr. Roth was capable of performing the work he
performed on Henriksen. Qualifying for disability benefits
under an insurance policy, however, is not necessarily the
same thing as actually being incapable of performing some work
obligations. As noted, Dr. Roth testified in his case against
Provident that he was still performing, albeit on a part-time
basis, all the tasks and operations as a dentist that he had
performed before his injuries, with the exception of full-
mouth reconstructions. One doctor recommended in 1998 that
Dr. Roth should find another profession, but Dr. Roth clearly
chose to continue his practice even as his action against
1060875
The Eleventh Circuit Court of Appeals went on to
6
summarize the current federal caselaw on the subject:
"Some courts have held that judicial estoppel does
not apply when the prior position was asserted in a
case that resulted in settlement. See In re
Bankvest Capital Corp., 375 F.3d 51, 60-61 (1st Cir.
2004) (refusing to apply judicial estoppel where
prior proceeding ended in settlement); Blanton v.
Inco Alloys Int'l, Inc., 108 F.3d 104, 109-10 (6th
15
Provident moved forward and after the case ended by way of
settlement. Thus, the fact that the Roth defendants contended
that Dr. Roth was not totally disabled when he performed the
surgery on Henriksen is not "clearly inconsistent" with
Dr. Roth's position in the prior action against Provident.
Henriksen also contends that Dr. Roth was successful in
his action against Provident because that action ended in a
settlement. Because of the confidential nature of the
settlement agreement, however, we do not know to what extent
Dr. Roth may have been "successful" in the prior litigation.
Moreover, this Court has not determined whether a settlement
constitutes "success" for purposes of judicial estoppel. In
Transamerica
Leasing,
Inc.
v.
Institute
of
London
Underwriters, supra, the Eleventh Circuit Court of Appeals
labeled this question "a difficult question" that has "divided
the [federal] circuits." 430 F.3d at 1336 n.8. Deciding
6
1060875
Cir.), supplemented by, 123 F.3d 916 (6th Cir. 1997)
(noting that judicial estoppel should be applied
only to positions a party successfully maintained in
a prior suit, and that a settlement results in
'successful' positions for neither side); Bates v.
Long Island R.R. Co., 997 F. 2d 1028, 1038 (2d Cir.
1993) (noting that because a settlement neither
requires nor implies judicial endorsement of a
particular argument, a position taken in a case that
settles cannot give rise to judicial estoppel). Not
all courts share this view. See Commonwealth Ins.
Co. v. Titan Tire Corp., 398 F. 3d 879, 887 (7th
Cir. 2004) (noting that judicial estoppel can apply
when the prior dispute resulted in settlement);
Rissetto v. Plumbers Local 343, 94 F. 3d 597, 604-05
(9th Cir. 1996) (noting that a favorable settlement
is the equivalent of winning a judgment for the
purposes of judicial estoppel)."
Transamerica Leasing, Inc., 430 F.3d at 1336 n.8.
16
this question is not necessary here, however, because even if
the settlement constituted "judicial acceptance" of Dr. Roth's
previous position, as already discussed, that position is not
"clearly inconsistent" with the position the Roth defendants
took in the present case. As a result, there is no perception
that either the court in the first action or the court in the
second action was misled.
Finally, Henriksen argues that the Roth defendants'
position taken here, which Henriksen alleges is inconsistent
with Dr. Roth's position in his earlier action, gave them an
"unfair advantage" because, she says, they were "allowed to
1060875
17
present the confusing and sympathy-laden argument that
Dr. Roth was not disabled, just in pain." Henriksen's reply
brief at 9. It is unclear how the argument that Dr. Roth was
not disabled at the time of the surgery offered the Roth
defendants an advantage, however, given Henriksen's arguments
at trial. Henriksen argued that Dr. Roth breached the
standard of care by failing to inform her of his mental and
physical condition, not that he breached the standard of care
in his technical performance of the surgery. Thus, Dr. Roth's
disability -- or lack thereof -- went only to the issue
whether it was improper for him as a dentist not to reveal a
disability to a patient. Even if the Roth defendants had been
judicially estopped from arguing that Dr. Roth was not
disabled at the time of the surgery, Henriksen still had to
demonstrate that the standard of care required Dr. Roth to
reveal any disability to Henriksen.
Moreover, the trial court allowed Henriksen to present
all of her evidence related to Dr. Roth's condition. It let
the jury weigh that evidence against the facts that Dr. Roth
performed the surgery and that Henriksen was not disputing his
performance. Given that the Roth defendants' position was not
1060875
18
"clearly inconsistent" with the position Dr. Roth had taken in
his case against Provident and that the Roth defendants could
not gain an unfair advantage through its position, the trial
court chose to err on the side of letting the jury settle the
disputed facts over Dr. Roth's condition. We cannot say that
Henriksen was unfairly prejudiced by the trial court's
decision in this regard.
Based on the foregoing, we conclude that the doctrine of
judicial estoppel did not prevent the Roth defendants from
taking the position at trial that Dr. Roth was not disabled at
the time he performed the surgery on Henriksen.
B. Henriksen's Objections to Requested Jury Charges
The Roth defendants contend that Henriksen failed to
properly object to the trial court's rulings regarding the
giving and receiving of requested jury charges and, thus, that
she did not preserve these issues for appeal. Rule 51, Ala.
R. Civ. P., provides, in part:
"No party may assign as error the giving or failing
to give a written instruction, or the giving of an
erroneous, misleading, incomplete, or otherwise
improper oral charge unless that party objects
thereto before the jury retires to consider its
verdict, stating the matter objected to and the
grounds of the objection."
1060875
19
(Emphasis added.) The Roth defendants contend that Henriksen
failed to state the grounds of her objections with regard to
the requested jury charges.
During the pre-charge conference, Henriksen's counsel
apparently made specific objections to the trial court's
refusal to read Henriksen's requested jury charge on lack of
consent and the trial court's giving of the Roth defendants'
instruction on emergency medical treatment. The pre-charge
conference was not, however, on the record. During the trial,
Henriksen's counsel objected as follows:
"THE COURT: .... Exceptions from [Henriksen]?
"MR. FILLINGIM: Two, Your Honor, The reading of
[the Roth defendants'] jury charge number 17 on
emergency.
"THE COURT: Yeah, yeah. I note your exception.
"MR.
FILLINGIM:
And
the
failure
to
read
[Henriksen's] jury charge 33 on lack of consent.
"THE COURT: Okay. As we discussed, probably off
the record, I——I note your exception. I've already
articulated my reason for not giving the absence of
consent. I think that its virtually subsumed in
this case by the lack of consent charge I gave. I
think it really would be confusing and unnecessary,
but I note your exception."
In McElmurry v. Uniroyal, Inc., 531 So. 2d 859, 859-60
(Ala. 1988), this Court stated:
1060875
20
"To be timely, an objection to the trial court's
oral charge must be made at the close of the court's
initial instructions to the jury, and it must be
stated with sufficient clarity or specificity to
preserve the error——in other words, an exception
designating only the subject treated by the court in
its oral charge is insufficient. ... Although
Rule 51[, Ala. R. Civ. P.,] does not contemplate
that the objecting party, in order to preserve for
appellate review an erroneous instruction, deliver
a discourse on the applicable law of the case, he
must adequately state specific grounds for his
objection. ...
"Because the only objection raised by McElmurry
to the trial court's jury instructions, both oral
and written, referred to earlier objections made
during the pre-charge conference, and because the
record is devoid of any specific objection to the
charge regarding punitive damages, the only issue
raised on appeal, there is nothing for this Court to
review. Rule 51, Ala. R. Civ. P., expressly
requires that a party state the grounds for his
objection; the failure to do so prevents appellate
review of the alleged error."
(Citations omitted.) Furthermore, "[i]n order to comply with
the policy behind Rule 51, a party should leave nothing at
large in objecting to the court's oral charge. The objection
must be definite." Coleman v. Taber, 572 So. 2d 399, 402
(Ala. 1990).
Henriksen did not provide specific objections on the
record regarding the requested jury charges. Concerning the
charge on emergency medical treatment, there is nothing in the
1060875
21
trial transcript elucidating why Henriksen objected to the
charge. Accordingly, the objection was not specific enough to
preserve any alleged error for review on appeal.
Whether Henriksen's objection to the trial court's
refusal to give her requested instruction on lack of consent
was sufficient to preserve that objection for appeal is not as
clear. "The purpose of stating grounds for objections is to
give the trial court an adequate opportunity to correct the
instructions and to avoid the waste of time and money from
reversals that result from oversight, technical omissions, or
remedial mistakes." American Cast Iron Pipe Co. v. Williams,
591 So. 2d 854, 856 (Ala. 1991). It can be argued based on
the colloquy described above that the trial court was aware of
Henriksen's specific reasons for objecting to the lack-of-
consent instruction given by the trial court and why it was
necessary for the trial court instead to give the instruction
proposed by Henriksen. On the other hand, the absence of that
objection in the record on appeal makes it difficult, if not
impossible, for this Court to assess the extent to which the
argument now made by Henriksen on appeal on this issue is the
same as the argument Henriksen, and perhaps the trial court,
1060875
Henriksen's requested instruction does not track the
7
language of any instruction provided in the Alabama Pattern
Jury Instructions.
22
had in mind at trial. Ultimately it is unnecessary to resolve
this issue because, even if we knew that the argument now made
on appeal was the same as the one made before the trial court,
we find that argument to be unpersuasive.
The trial court gave an instruction on lack of consent.
When that instruction is compared to Henriksen's requested
charge, both unequivocally state that a doctor may not treat
a patient without the patient's consent. The major difference
between the instruction given and the requested instruction is
that
Henriksen's
instruction states that
"[a] medical
procedure performed without the consent of a patient
constitutes an assault and battery or trespass to the
person."7
It is true that "[i]n Donald v. Swann, 24 Ala. App. 463,
137 So. 178 (1931), the Court of Appeals held that a medical
procedure performed without the consent of
a patient
constituted an assault and battery or a trespass to the
person." Cain v. Howorth, 877 So. 2d 566, 580 (Ala. 2003).
This Court has since recognized that claims of so-called
1060875
23
"medical battery" based on a lack of consent have been
subsumed by the Alabama Medical Liability Act, § 6-5-540 et
seq., Ala. Code 1975. See Black v. Comer, 920 So. 2d 1083,
1093 (Ala. 2005). The present case was tried under the
Alabama Medical Liability Act, testing whether Dr. Roth met
the standard of care for the practice of general dentistry as
to certain of his actions toward Henriksen on August 28, 2000.
At a minimum, as the trial court concluded, giving the
requested
instruction
would
have
been
"confusing
and
unnecessary." Henriksen never pleaded or mentioned at trial
a cause of action for assault, battery, or trespass to the
person. "[E]ach party is entitled to have proper instruction
given the jury regarding the issues presented in the case."
American Cast Iron Pipe Co. v. Williams, 591 So. 2d at 856.
It obviously follows that if an issue has not been presented,
the jury should not be instructed about it. See 75A Am. Jur.
2d Trial § 991 (2007) (noting that "[t]he instructions given
by the trial court should be confined to the issues raised by
the pleadings in the case at bar and the facts developed by
the evidence in support of those issues or admitted at the
bar").
1060875
24
In sum, the trial court's instruction was a correct
statement of law, and, looking at the instructions as a whole,
we conclude that its "oral instruction was sufficient to cover
the issues presented to the jury by the pleadings." Meyer v.
Wal-Mart Stores, Inc., 813 So. 2d 832, 840-41 (Ala. 2001).
Accordingly, there was no reversible error in the trial
court's refusal to give Henriksen's requested instruction.
See, e.g., Sewell v. Internal Med. & Endocrine Assocs., P.C.,
600 So. 2d 242, 244 (Ala. 1992) (citing McLemore v. Alabama
Power Co., 289 Ala. 643, 270 So. 2d 657 (1972), and Alabama
Power Co. v. Tatum, 293 Ala. 500, 306 So. 2d 251 (1975)).
IV. Conclusion
Based on the foregoing, we see no ground for reversal of
the trial court's judgment. We therefore affirm the judgment.
AFFIRMED.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur. | December 31, 2008 |
8e4eb657-fdb0-4e57-9df5-a893c6e28b64 | Smitherman v. State | 85 So. 2d 427 | N/A | Alabama | Alabama Supreme Court | 85 So. 2d 427 (1956)
Roosevelt SMITHERMAN
v.
STATE.
1 Div. 647.
Supreme Court of Alabama.
February 2, 1956.
*428 J. R. Meriwether, Prichard, for appellant.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
GOODWYN, Justice.
Appellant was convicted of murder in the first degree and sentenced to death by electrocution. His appeal is here under the provisions of the Automatic Appeal Statute. Act No. 249, appvd. June 24, 1943, Gen.Acts 1943, p. 217, Code 1940, Tit. 15, § 382(1) et seq., Pocket Part.
The indictment charges that appellant "unlawfully and with malice aforethought, killed Thomas J. Harper, by shooting him with a gun, against the peace and dignity of the State of Alabama." Appellant entered a plea of "not guilty" and relies on "self-defense" as a justification for the killing.
It is undisputed that appellant shot deceased twice with a .22-calibre rifle, thereby causing his death. The first shot was fired when deceased was in front of appellant's home on Chinquepin Street, in Mobile County, the bullet entering his body from the back. The second shot was fired about thirty minutes later just off Stanton Road in Mobile County, at a point where appellant carried deceased in deceased's automobile and left him, the bullet entering on the right side of deceased's head. It appears to be clearly established by expert medical testimony that the first shot caused the death. It further appears that the second shot was fired after deceased's death.
We have given most careful consideration to all of the testimony, even though no lawful objection or exception was made thereto, as is required of us, and we do not find any testimony that was seriously prejudicial to the rights of the appellant; nor can we say, upon consideration of all the testimony, that the verdict is so decidedly contrary to the great weight of the evidence as to be wrong or unjust, which would call for an order reversing the judgment and granting a new trial. Code 1940, Tit. 15, § 382(10), Pocket Part, Act No. 249, appvd. Jan. 24, 1943, Gen.Acts 1943, p. 219, § 10, supra. We are clear to the conclusion that the verdict is amply supported by the evidence.
Two written confessions signed by appellant were introduced in evidence. We think the proper predicate was laid for the introduction of each of these confessions. "It is settled law that when a confession is offered in evidence against a defendant in criminal trial, the duty devolves upon the court to ascertain and declare by its ruling whether or not such confession was free and voluntary. When confessions have been admitted as evidence against a defendant's objection, the presumption is in favor of the correctness of the ruling of the trial court, on appeal, and reversal will not be had because of the admission of such evidence, unless the record affirmatively shows that manifest error was committed in the admission of such evidence. Price v. State, 117 Ala. 113, 23 So. 691; Wilson v. State, 191 Ala. 7, 67 So. 1010; Sharp v. State, 193 Ala. 22, 26, 69 So. 122." Curry v. State, 203 Ala. 239, *429 242, 82 So. 489, 492. We find no error in admitting the confessions in evidence. We here note that no evidence was offered on behalf of appellant to contradict the State's evidence that the confessions were freely and voluntarily made.
Appellant's wife elected to testify against him. Code 1940, Tit. 15, § 311. Before testifying she was advised by the solicitor and her own counsel that she could not be compelled to testify against appellant. She replied in each instance that she wanted "to tell the truth". She was also questioned by the court as to her willingness to testify. She again stated that she wanted "to tell the truth". Aside from appellant, she was the only eye witness to the shooting in front of their house. Her testimony, in some material respects, is in direct conflict with appellant's testimony given on the trial but conforms generally with the statements contained in appellant's confessions.
Appellant's wife was placed in custody shortly after appellant's arrest and was held in jail until about two weeks before the trial. On being taken into custody she was brought together with appellant, after appellant had made his confessions, and was told by him at that time to tell the truth. She then made an oral statement. That was several days after the shooting and about four months before the trial. There is nothing to indicate that the statement of facts given by her then was in any respect different from her testimony on the trial. Whether the wife was properly held in jail can have no bearing on her right to testify at her election. Of course, if her decision to testify against her husband was the result of coercion against her will, then her decision was not voluntary. But we find nothing in the record to indicate that her decision was motivated by anything except a desire "to tell the truth".
Counsel for appellant make the point that the trial court committed reversible error in sustaining the State's objection to the following question asked appellant's wife on cross-examination, viz.:
Appellant argues the point as follows:
We cannot agree with appellant's insistence that the trial court's ruling calls for a reversal. Suffice it to say that we are unable to see how the fact that the witness' family either did or did not visit her in jail or come to get her out of jail could have any bearing on the witness' feelings toward her husband.
On consideration of all of the evidence, it is clear to us that the question of appellant's guilt was purely and simply one for the jury's determination. The jury resolved the factual issues, including the issue of self-defense, against appellant. We find nothing in the record to warrant a reversal of the judgment rendered on the jury's verdict.
There were no requests for written charges to the jury. The law of the case was ably and fully stated by the trial judge in his oral charge to the jury.
The judgment is due to be, and is, affirmed.
Affirmed.
All the Justice concur. | February 2, 1956 |
aa8fb2f1-9d9f-4a00-bd75-aeca72b425bb | Southeast Environmental Infrastructure, L.L.C. v. Larry Rivers | N/A | 1060615 | Alabama | Alabama Supreme Court | REL: 12/19/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1060615
____________________
Southeast Environmental Infrastructure, L.L.C.
v.
Larry Rivers
Appeal from Jefferson Circuit Court
(CV-05-1176)
On Return to Remand
SMITH, Justice.
On June 27, 2008, we remanded this case with directions
for the trial court to conduct a hearing on the motion for a
remittitur filed by Southeast Environmental Infrastructure,
1060615
This case was consolidated with two other appeals
1
(1060643 and 1060876) also arising out of an action Larry
Rivers filed against SEI and others. On June 27, 2008, we
affirmed the judgment in case no. 1060643 and affirmed in
part, reversed in part, and remanded in case no. 1060876.
Neither of those cases is before us in this return to remand.
2
L.L.C. ("SEI"). Specifically, we directed the trial court to
1
hold a hearing to consider SEI's motion for a remittitur of
the $1.1 million compensatory-damages award and the $400,000
punitive-damages award in Larry Rivers's action against SEI.
We also directed the trial court to make a return to this
Court following that hearing. In response, the trial court
conducted a hearing on August 12, 2008, and entered an order
on August 22, 2008, that, among other things, denied SEI's
motion for a remittitur of the compensatory- and punitive-
damages awards. A copy of that order was filed with this
Court on September 26, 2008.
As to the compensatory-damages award, the trial court's
order states:
"The compensatory award of $1,100,000.00 is
supported by the evidence in this case. The areas
of damage to Rivers in addition to the proven
medical bills of $207,000.00, include, but are not
limited to, loss of hearing, facial palsy, lost time
and inability to work, problems with family and
interpersonal interaction in social situations,
difficulty
in
understanding
and
remembering
1060615
3
instructions, the potential need for vocational
re-training, depression, neurological treatment,
impulsivity, disinhibition, lability, and other
permanent effects of a traumatic brain injury. Dr.
James Banos, neuropsychologist, was called to
testify by SEI. Dr. Banos testified that Mr. Rivers
sustained impact to his head on the right side of
the head in the region of the temporal and parietal
bones. Dr. Banos testified that the right side of
the brain can be involved in non-verbal aspects of
communication,
social
interaction,
memory
for
non-verbal things, images, songs and aspects of
interpersonal behavior. Dr. Banos also testified
that an injury to the right side of the brain will
affect the left side of the body. Dr. Banos
characterized Mr. Rivers' injury as a traumatic
brain injury and that the long-term consequences can
include cognitive problems, memory problems, and
executive functioning problems in addition to the
medical problems mentioned above. Finally, Dr.
Banos testified that some of the problems associated
with traumatic brain injury can be lifelong with
difficulties
finding
employment,
maintaining
employment,
and family and
interpersonal interaction
issues. With regard to future treatment, Dr. Banos
testified that there may [be] a future need for
psychiatric treatment, treatment for depression,
counseling and neurological issues.
"The Court has given significant consideration
to [the] lasting impact on the mind and body of Mr.
Rivers and the debilitating injury that he suffered.
Accordingly,
the
Court
concludes
that
the
compensatory award of $1,100,000 was justified based
upon the evidence and is not due to be remitted."
The trial court's order states that, in reviewing the
punitive-damages award, the trial court considered the award
in light of the decisions of this Court in Hammond v. City of
1060615
In its order, the trial court cites evidence indicating
2
that despite SEI's notice of and knowledge about proper
safety procedures for rigging and excavation, SEI exhibited a
"continuous disregard for such safety rules and regulations."
For example, the trial court's order notes that a dangerous
and unsafe strap had been confiscated from SEI before Rivers's
injury and that, even though SEI had been informed not to use
an unsafe strap, "the evidence was overwhelming and clear and
convincing that ... the rigging equipment being used [when
Rivers was injured] was so deteriorated and in such a
dangerous condition that a strap which should have been able
to hold at least 12,000 pounds broke under a 400-600 pound
load." Additionally, the trial court's order cites evidence
of spoliation by SEI with regard to the strap involved in
Rivers's injury.
4
Gadsden, 493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v.
Hornsby, 539 So. 2d 218 (Ala. 1989). The trial court, in
upholding the $400,000 punitive-damages award, emphasized in
particular the reprehensibility of SEI's conduct and noted
2
that the ratio of the punitive-damages award to the
compensatory-damages award was .36 to 1.
After reviewing the trial court's order, we agree with
the trial court that SEI was not entitled to a remittitur of
the compensatory- and punitive-damages awards. Those awards
are hereby affirmed.
AFFIRMED.
Cobb, C.J., and See, Woodall, and Parker, JJ., concur. | December 19, 2008 |
70b7dac5-641b-43cc-854b-c7eb2d7e255f | Moore v. Stephens | 84 So. 2d 752 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 752 (1956)
E. C. MOORE, as Adm'r,
v.
Myrtle A. STEPHENS, as Adm'x.
6 Div. 722.
Supreme Court of Alabama.
January 19, 1956.
*753 Walter G. Woods, Tuscaloosa, for appellant.
Dominick, Rosenfeld, Roberts & Beatty and Samuel A. Beatty, Tuscaloosa, for appellee.
MERRILL, Justice.
Appellant, plaintiff below, sued appellee alleging a cause of action for wrongful death under Title 7, Sec. 123, Code 1940. Appellee filed a special plea setting up the statute of nonclaim, Title 61, Sec. 211, Code 1940. Issue was joined on this plea, and the judge gave the affirmative charge for the appellee. From the judgment rendered on the verdict pursuant to the charge, appellant has taken this appeal.
The facts out of which this litigation arose follow. Appellant's intestate Anna D. Moore, deceased, was injured in an automobile accident on February 2, 1952 and died on September 8, 1952. Appellee's intestate, Callie Stephens, deceased, was the driver of the automobile in which Anna D. Moore was riding when she was injured, and Callie Stephens died on February 2, 1952, the date of the accident. Appellee was appointed administratrix of his estate and was granted letters of administration by the Probate Court of Tuscaloosa County on February 14, 1952. This suit was filed on December 8, 1952, more than nine months after the granting of letters of administration.
It is agreed and stipulated between the parties that the sole issue to be decided here is whether Title 61, Sec. 211 constitutes a bar to this action. Appellant admits that no suit or claim of any kind arising out of the cause of action alleged in his complaint was ever filed against the estate of Callie Stephens, deceased, with the Probate Judge, nor in Probate Court, nor with appellee within six months from the grant of letters of administration.
*754 Title 61, Section 211 provides:
Appellant contends that this statute has no application to a claim arising out of a tort. We have been cited no case, nor does our research disclose a case wherein we have decided the instant question.
Through the years this court has recognized one exception to the requirement in the statute of nonclaim, and that exception is where the claim is a contingent one. A discussion of the progenitor of Title 61, Sec. 211, the exception, and what constitutes a contingent claim is found in Fretwell v. McLemore, 52 Ala. 124, 140-141, where the court, Chief Justice Brickell writing, said:
Other cases which recognize the existence of the quoted exception are McDowell v. Jones, 58 Ala. 25; Farris v. Stoutz, 78 Ala. 130; Chamblee v. Proctor, 203 Ala. 61, 82 So. 21; Dallas Compress Co. v. Liepold, 205 Ala. 562, 88 So. 681; Murwin v. Birmingham Trust & Savings Co., 237 Ala. 100, 185 So. 756. None of these cases, however, are authority for the proposition that claims arising out of tort are contingent claims to which the statute has no application.
*755 There is an expression in the case of Roche Undertaking Co. v. De Bardelaben, 7 Ala.App. 232, 60 So. 1000, which indicates that the court considered tort claims to be subject to the statute of nonclaim, but the statement is dictum. The Court of Appeals was showing that a claim for funeral expenses was against the personal representative and not against the decedent. The court said: "When he [the personal representative] has paid such funeral expenses, his claim against the estate, for reimbursement or credit thereforunlike claims held by him against the estate arising under contracts made or torts done by the deceased in his lifetimedoes not have to be formally verified and filed, like they do, as a claim against the estate".
In our case of Ex parte Zepernick, 259 Ala. 493, 66 So. 2d 757, where a claim was filed in probate court for wrongful death within the time required by the statute of nonclaim and suit also brought in the circuit court, we refused to prohibit the circuit judge from trying the cause where there had been no contest of the claim in the probate court prior to the filing of the suit in the circuit court, but expressly found that it was not necessary to decide whether a tort claim is required to be filed in the probate court. In our more recent case of Barrett v. Fondren, 262 Ala. 537, 80 So. 2d 243, 246, we held that the filing of a suit in circuit court within the six months obviated the filing of the claim in the probate court within the six months, but in that case also it was not necessary to decide whether tort claims are within the statute of nonclaim, although there is a discussion of the question, and we pointedly invited the legislature, which was to meet shortly in regular session, to "clear up the difficulty". No action was taken by the legislature.
An examination of some of the authorities from other jurisdictions is convincing that the decided weight of authorities requires the filing of notice of a tort claim within the time provided in the statute of nonclaim. See 21 Am.Jur., Executors and Administrators, Sec. 352, p. 581; 34 C.J.S., Executors and Administrators, § 398, p. 166.
In Rhode Island, the statute, Gen.Laws 1909, c. 314, § 3, provides that "All persons having claims, including pending suits, preferred claims, and claims of the executor or administrator, against the estate of a deceased person shall file statements of their claims in the office of the clerk of the probate court." In Hicks v. Wilbur, 38 R.I. 268, 94 A. 872, 874, a leading case on the subject before us, the court said:
In Massachusetts, the statute provided that an action for either bodily injury or property damage was barred by the statute requiring a creditor of a decedent to commence his action against the executor or administrator within one year and the court said "one who has a cause of action in tort that survives is a `creditor' within that statute". Mulligan v. Hilton, 305 Mass. 5, 24 N.E.2d 676, 678, 133 A.L.R. 376.
In Indiana, the statute, Burns' Ann.St. § 6-1001, provided "No action shall be brought by complaint and summons against *756 the executor or administrator of an estate for the recovery of any claim against the decedent, but the holder thereof, whether such claim be due or not, shall file a succinct and definite statement thereof in the office of the clerk of the court in which the estate is pending * * *". The court said "the phrase `any claim' is broad enough to include claims ex contractu and ex delicto. The clear intent of the statute is to include all such claims". Williams v. Williams, 217 Ind. 581, 29 N.E.2d 557, 558.
In Iowa the statute, I.C.A. § 635.68, provided "All claims not filed as hereinbefore provided within six months from the giving of the notice aforesaid, will be barred * * *". The court held that a tort claim is not a contingent claim and should have been filed within six months. Des Moines Transp. Co. v. Haring, 238 Iowa 395, 27 N.W.2d 210.
In Washington the statute, Rem.Comp.St. § 1477, provided "If a claim be not filed within the time aforesaid [6 mos. after the date of the first publication of notice to creditors], it shall be barred". The court held that this section of the code "is a statute applying to the settlement of estates and supercedes all other statutes of limitation and applies to every kind and character of claim against an executor and administrator, and the trial court was therefore correct in sustaining the demurrer". Davis v. Shepard, 135 Wash. 124, 237 P. 21, 24, 41 A.L.R. 163.
In Michigan the statute, Pub.Acts 1939, No. 288, c. 8, § 3, provided "All claims in each estate shall be heard by the probate court * * *". The court held that "we, therefore, must assume that in the present act, the legislature used the word `claims' advisedly to include claims ex delicto as well as claims ex contractu". Chabre v. Page, 298 Mich. 278, 299 N.W. 82, 85.
In Ohio the statute, Gen.Code, § 10509-112, provided that "Creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment. Such executor or administrator shall allow or reject all claims, except contingent claims, within thirty days after their presentation * * *". The court said "a liability on an unliquidated claim for damages arising out of a tort does not depend for its creation upon the occurrence of some uncertain event in the future. On the contrary, such claim is, as of necessity it must be, based on the theory that the event, the tort, giving rise to liability, has already occurred, and that a cause of action has already accrued and is in existence. A claim thus grounded cannot be said to be contingent." Pierce v. Johnson, 136 Ohio St. 95, 23 N.E.2d 993, 995, 125 A.L.R. 867.
In Wyoming the statute, Comp.St.1945, § 6-1609, provided "No holder of any claim against an estate shall maintain any action thereon unless the claim is first presented to the executor or administrator * * *". It was held that in the absence of proof of the presentation of the claim, no recovery could be held. Lindsay v. Collins, 96 F. Supp. 994.
The courts of two states, Mississippi and New Mexico, reach an opposite result. In New Mexico, the statute, 1941 Comp. § 33-803, provided "All claims against the estate of deceased persons not filed and notice given, as provided in the preceding section, within six [6] months from the date of the first publication of notice of the appointment of the executor or administrator, shall be barred * * *". The court held the statute did "not cover tort claims". Frei v. Brownlee, 56 N.M. 677, 248 P.2d 671.
In Mississippi, the statute, Code 1930, § 1672, provided "All claims against the estate of deceased persons, whether due or not, shall be registered, probated, and allowed in the court in which letters testamentary or of administration were granted within six months after the publication of notice to creditors to present their claims; otherwise the same shall be barred * *". The court said "that statute applies alone to contractual claims and not to those ex delicto". Hancock v. Pyle, 191 Miss. 546, 3 So. 2d 851, 853.
In some states, the statute is in terms limited to claims arising on contract, or specifically includes tort claims.
*757 In Tennessee, the court held that the statute of nonclaim by its terms, only referred to a claim evidenced by a written instrument, or a judgment or decree, or an open account and thus, tort claims were excluded. Collins v. Ruffner, 185 Tenn. 290, 206 S.W.2d 298.
In Utah, it was held that the statute of nonclaim did not apply to tort actions because the statute, Comp.Laws 1917, § 7648, was specifically limited to "all claims arising upon contracts". Van Wagoner v. Whitmore, 58 Utah 418, 199 P. 670.
In Nebraska, the court held that a tort claim is not contingent and must be tried in the county court because the statute gave exclusive jurisdiction to that court for the administration of estates of deceased persons and approved the following statement: "The word `claim' includes every species of liability which an executor or an administrator of an estate can be called upon to pay, or provide for payment of, out of the general fund of the estate". Rehn v. Bingaman, 151 Neb. 196, 36 N.W.2d 856, 857.
In California, from 1874 to 1949, the statute, Probate Code, § 707, read "`If a claim arising upon a contract heretofore made, be not presented * * *, it is barred forever * * *'". Obviously, it was held that the statute excluded tort claims. National Automobile & Casualty Ins. Co. v. Ainge, 34 Cal. 2d 806, 215 P.2d 13, 15. In 1949 the legislature amended the statute to require the presentation of claims "for damages for physical injury or death, or injury to property". Such tort claims have since been required to be filed. Casey v. Katz, 114 Cal. App. 2d 391, 250 P.2d 291.
In Illinois, it was decided that under the constitution of that state, probate courts "do not have jurisdiction of claims ex delicto" and the statutes requiring the filing of claims in the probate court could not apply to tort claims, Howard v. Swift, 356 Ill. 80, 190 N.E. 102, 104, but there is language in the case of In re Collignon's Estate, 333 Ill.App. 562, 77 N.E.2d 841, which strongly suggests that the suits in Circuit and Superior courts would have been barred had they not been filed within the nine-month period provided in the Probate Act.
An analogous question arose in the case of Barrett v. City of Mobile, 129 Ala. 179, 30 So. 36, 38, where the problem was the construction of a provision in the charter of the city of Mobile which provided that "`no claim against the city of Mobile shall be sued on until a statement thereof * * * shall have been filed with the clerk for consideration of the general council, and either rejected by them or held for sixty days without action'". It was there stated:
It is interesting to note that the Supreme Court of Indiana quoted from the Barrett case when it held that a tort claim against a decedent must be filed in accordance with the nonclaim statute in Williams v. Williams, supra.
*758 We think the reasoning of the Barrett case is applicable here. The purpose of the statute of nonclaim is to "promote a speedy, safe, and definitive settlement of estates by giving the personal representative notice of all claims against the estate in his hands." Smith v. Fellows, Adm'r, 58 Ala. 467. The use of the words "all claims" in the statute certainly denotes a legislative intention to include claims ex delicto as well as those ex contractu. In the case of Yniestra v. Tarleton, 67 Ala. 126, wherein this court dealt with the question of whether a cause of action of fraud, or fraudulent concealment of a cause of action were subject to the statute of nonclaim, it was stated:
The appellant insists that no cause of action arose under our statutes until Anna D. Moore died, that this fact made the claim contingent and it was therefore exempted from the statute of nonclaim.
Title 7, Section 150, Code 1940, as amended in 1951, reads:
Title 7, Section 123 provides:
Even though the cause of action survives under Section 150, as amended, it still does not create two causes of action when considered in conjunction with Section 123, the wrongful death statute. Our cases construing that statute, are discussed in Woodward Iron Co. v. Craig, 256 Ala. 37, 53 So. 2d 586, 593, and the entire court concurred in this statement:
There is an analogy between that case and the instant case. There the injured party filed a suit before his death, but he had delayed the filing until it was barred by the statute of limitations, and thus his administratrix was denied the right to recovery under the wrongful death statute, even though the suit was filed within one year after the death of his intestate. Here the injured party, Anna D. Moore, continued to live until after her claim was barred by the statute of nonclaim. This being so, any defense is available against the personal representative that existed against Anna D. Moore. Woodward Iron Co. v. Craig, supra, and cases therein cited and discussed. Anna D. Moore could have filed suit any time within six months from February 14, 1952, Barrett v. Fondren, supra; or she could have filed her claim in probate court within the six months and still have elected to file suit in circuit court if she chose to do so prior to the contest of her claim in probate court. Ex parte Zepernick, supra.
Once again we refer to Fretwell v. McLemore, 52 Ala. 124, where in 1875, the court said:
Chief Justice Brickell, writing further in the Fretwell case said that the statute of nonclaim was "one of the most important statutes to be found in our statute book,a statute founded on the wisest public policy, affording protection to the living and the dead; a statute, which gives repose to society, quiets litigation, removes temptations to fraud and perjury, secures titles, and preserves domestic peace", and further that "the whole theory of the statute is to create a defense broader in its operation than the statute of limitations, not only barring remedies, but extinguishing debts and liabilities".
*760 We conclude that the statute of nonclaim is clear and unambiguous and "must be construed to mean just what the words import", and the words "all claims against the estate of the decedent" should be construed to include all claims not specifically excepted, and thus to include tort claims.
It follows that when the plea setting up noncompliance with Title 61, Section 211, Code 1940 was admitted by the appellant, the trial court correctly gave the affirmative charge at the request of the appellee, and the cause should be affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | January 19, 1956 |
2cb57cf3-b561-4330-9b04-e2a2394b1efc | Geter v. United States Steel Corp. | 84 So. 2d 770 | N/A | Alabama | Alabama Supreme Court | 84 So. 2d 770 (1956)
Willie GETER
v.
UNITED STATES STEEL CORP.
6 Div. 966.
Supreme Court of Alabama.
January 19, 1956.
*771 Lipscomb, Brobston, Jones & Brobston, W. E. Brobston and Jerry Stapp, Bessemer, for appellant.
J. R. Forman, Jr., C. V. Stelzenmuller and Burr, McKamy, Moore & Thomas, Birmingham, for appellee.
PER CURIAM.
This review is by certiorari to test the conclusions of law reached in a final judgment of the Circuit Court of Jefferson County, denying the petitioner workmen's compensation upon complaint filed in said court.
The petitioner's action for workmen's compensation was brought under the 1951 amendment to the Workmen's Compensation Law of Alabama, Code 1940, Tit. 26, § 313(1) et seq., treating occupational pneumoconiosis as an accident. The proceeding was against defendant, United States Steel Corporation, a corporation. The petitioner claimed compensation for total and permanent disability caused from occupational pneumoconiosis contracted in defendant's Docena Coal Mine, claiming that such disease arose out of and in the course of his employment with the defendant and resulted from the nature of the employment in which plaintiff was engaged for defendant.
The cause was submitted upon petition for workmen's compensation, answer and replication, together with testimony presented in open court and exhibits introduced.
At the hearing it was stipulated that the parties were subject to the provisions of the Workmen's Compensation Law of Alabama, and that plaintiff, who was fifty-one years of age, had worked underground in defendant's coal mine since the year 1926. During his employment he was exposed to the hazards of coal dust, and his last employment was on October 10, 1952.
Upon leaving defendant's mine on October 10, 1952, his physical condition was diagnosed as active tuberculosis, in the contagious stage. About three weeks thereafter, during which time he had remained at home and in bed, he was taken by rail transportation to a sanatorium in North Carolina. His condition was there diagnosed as advanced tuberculosis and pneumoconiosis, and emphysema. An operation was performed on his chest and he remained a patient at this hospital until some time in August of 1954 when he returned to Birmingham. He is now, and has been since leaving the employ of defendant, totally and permanently disabled from performing any gainful employment as a result of his pneumoconiosis and tuberculosis. Plaintiff has a dependent wife.
The foregoing are some of the facts found by the court in its decree.
The defendant pleaded in defense the statute of limitation of one year, as provided in section 313(10), Title 26, pocket part, Code.
*772 The petitioner contended that section 313 (16), Title 26, pocket part, Code, reads into this statute of limitation section 296, Title 26, Code.
Section 296, supra, provides in material part: "In case of physical or mental incapacity, other than minority of the injured person or his dependents, to perform or cause to be performed any act required within the time in this section specified, the period of limitation in any such case shall be extended to become effective one year from the date when such incapacity ceases". Section 313(10), supra, in material part provides: "In case of mental incapacity of the injured employee or his dependents, to perform or cause to be performed any act required within the time in this section specified, the period of limitation in any such case shall be extended to become effective one year from the date when such incapacity ceases". (Italics supplied.) It will be noted that section 313 (16), supra, brings forward into the new article all of the old law that is not inconsistent with the new. It reads:
Section 11 of the Act, § 313(10), Code, supra, sets up a statute of limitations which is applicable alone to the occupational disease which is defined in the Act. Section 296, supra, provides a statute of limitations for all claims resulting from accidents as defined in the Code. They both fix one year as a limitation on the assertion of the claim. Section 296 fixes the date of the accident as the beginning of the period, subject to the named exceptions. Section 11, § 313(10), supra, fixes the "date of the injury, as hereinafter (thereinafter) defined" as the beginning of the period subject to named exceptions different from those set up in section 296, to which we have referred specifically above. "The date of injury" is defined in the last sentence of section 11, § 313(10), as "the date of the last exposure to the hazards of the disease in the employment of the employer in whose employment the employee was last exposed, within a period of five years prior to the date of the injury, to the hazards of the disease in each of at least twelve months".
Counsel for petitioner contend that section 17 of the Act of 1951, section 313(16), Title 26, supra, serves to add to section 11, supra, all the provisions of section 296, supra, not included expressly in it, and not inconsistent with it, which means to contend that the clause tolling the statute for incapacity as set out in section 296 should be applicable to section 11, because it is not inconsistent with said section 11 as set out in the Act. The argument is that such construction would only add to section 11 provisions which are not inconsistent with those of section 11, but are merely in addition thereto. Counsel refer to the principle applicable to section 89 of the Constitution, which prohibits a city from enacting an ordinance inconsistent with a State law. That is not violated by an ordinance which adds matter not inconsistent with what is set out in the State law. City of Birmingham v. West, 236 Ala. 434(2), 183 So. 421; Smith v. Town of Notasulga, 257 Ala. 382(2), 59 So. 2d 674. They argue that there can be no rational reason for writing different incapacity clauses in the two acts: that they are not only not inconsistent, but that we must assume that when the legislature wrote the incapacity clause it knew that there was no inconsistency in those two clauses, so that the one in section 296 would apply to section 11 of the Act.
We agree it is difficult to understand why there should be a difference in the two clauses. But we must also remember that legislative language which is clear and deliberately made, is conclusive on the Court in regard to its meaning. And where it is clearly expressed it is our duty to apply it as so expressed. While we must look to the whole Act to get a clear idea of its meaning, we cannot ignore clearly expressed terms because we are not able to understand the reason behind them.
*773 There is much occasion for the operation of section 17, § 313(16), supra, without having it substitute the incapacity clause of section 296, supra, for the incapacity clause clearly set out in section 11, supra. Section 17 of the Act is very general in its terms. It does not provide expressly that section 296, Title 26, shall apply to section 11 of the Act when not inconsistent with it. Section 17, § 313(16), does not mention either section 296 or section 11. But it refers to all the provisions of Articles 1, 2 and 3 of Chapter 5, except section 294, Title 26, and makes them applicable to this (added) article, "unless otherwise provided or inconsistent herewith".
Our cases, without conflict, give emphasis to the well defined rule that "`"special provisions relating to specific subjects control general provisions relating to general subjects"'"; and "`"when the law descends to particulars, such more special provisions must be understood as exceptions to any general rules laid down to the contrary."'" Miller v. State ex rel. Peek, 249 Ala. 14, 29 So. 2d 411, 416, 172 A.L.R. 1356; Alabama Electric Co-op. v. Alabama Power Co., 251 Ala. 190, 36 So. 2d 523; State v. Elliott, 246 Ala. 439, 21 So. 2d 310; Downing v. City of Russellville, 241 Ala. 494, 3 So. 2d 34; Herring v. Griffin, 211 Ala. 225, 100 So. 202; Pepper v. Horn, 197 Ala. 395, 73 So. 46; City of Birmingham v. Southern Express Co., 164 Ala. 529(6), 51 So. 159; City Council of Montgomery v. National Building & Loan Ass'n, 108 Ala. 336, 18 So. 816.
We think it is perfectly clear that the legislature in drafting section 11, the statute of limitations, took from section 296, Title 26, as much of it as was intended to apply to the occupational disease there dealt with. It is inconceivable that the legislature intended to include material features of the incapacity clause of section 296 when, apparently, they were intentionally omitted; and, therefore, we cannot agree that the general terms of section 17, § 313 (16), supra, should supersede the specific provisions of section 11 of the same Act.
The judgment of the circuit court was in accord with our interpretation of the law and it should be affirmed.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Judgment affirmed.
LIVINGSTON, C. J., and LAWSON, STAKELY and MAYFIELD, JJ., concur. | January 19, 1956 |
e48c3449-6cd6-47f0-8ae5-62078cb547a2 | Ex parte Roger Tavares Malone, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Roger Tavares Malone, Jr. v. State of Alabama) | N/A | 1061424 | Alabama | Alabama Supreme Court | REL: 12/19/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061424
____________________
Ex parte Roger Tavares Malone, Jr.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Roger Tavares Malone, Jr.
v.
State of Alabama)
(Jefferson Circuit Court, CC-05-1888;
Court of Criminal Appeals, CR-05-1806)
SEE, Justice.
1061424
2
Robert Tavares Malone, Jr., seeks a reversal of the
decision of the Court of Criminal Appeals affirming, by
unpublished memorandum, his conviction in the Jefferson
Circuit Court for manslaughter. Malone v. State (No. CR-05-
1806, May 18, 2007), ___ So. 2d ___ (Ala. Crim. App. 2007)
(table). We affirm.
Facts and Procedural History
On the night of December 30, 2004, Malone got into an
argument with Searcy Owens at a pool hall in Ensley. The
argument escalated. Owens hit Malone with at least one pool
cue and then grabbed Malone. Malone pulled a gun from his
pocket and shot Owens five times in the abdomen; Owens later
died from his wounds. Malone was indicted and tried for
murder.
At the conclusion of the testimony of the first witness,
the trial court informed the State and Malone that it intended
to allow jurors to question the witnesses directly. Malone
objected, but the trial court overruled Malone's objection.
The trial court subsequently issued instructions to the
jurors:
"All right, ladies and gentlemen, I will allow
you to ask the witness a question. If you have a
1061424
3
burning question in your mind as a result of the
testimony, if the question is improper then I can't
let you ask the question. If you ask a question,
you receive the answer. You simply receive it.
"In other words, it would be improper to say, 'I
believe you or I don't believe you,' that sort of
thing, okay? Okay."
Malone's brief at 4-5. Thereafter, as each witness finished
testifying, the trial court asked the jurors if they wanted to
ask that witness any questions. The jurors asked their
questions directly, without
first
submitting them to the trial
court. Jurors asked a total of eight questions of five
witnesses. Malone did not object to any specific question,
but he objected generally to the trial court's soliciting
questions from the jurors. Malone himself testified. At the
conclusion of his testimony there were no juror questions, and
Malone rested his case. The trial court then excused the jury
for the evening. After the jury had left the courtroom, the
bailiff informed the judge that one of the jurors had a
question for Malone. Malone renewed his earlier objection,
and the trial court again overruled it. The judge brought the
jury back into the courtroom and allowed the juror to ask
Malone a question.
1061424
4
The jury convicted Malone of the lesser-included offense
of manslaughter, and the trial court sentenced Malone to 20
years' imprisonment. The Court of Criminal Appeals affirmed
Malone's conviction in an unpublished memorandum. Malone v.
State (No. CR-05-1806, May 18, 2007), ___ So. 2d ___ (Ala.
Crim. App. 2007) (table). This Court granted certiorari
review to address, as a question of first impression, whether
a trial court has discretion to invite the jury to ask
questions of witnesses in a criminal trial.
Issue
The first issue Malone presents is whether the trial
court
exceeded
its discretion
by
soliciting
jurors
to
question
witnesses directly during a criminal trial. The second issue
is whether the trial court exceeded its discretion by allowing
a juror to question Malone after he and the State had rested
their cases.
Standard of Review
Malone objected to the trial court's practice of
soliciting juror questions of witnesses; he did not, however,
object to the content or form of any specific question. Trial
judges are vested with broad discretion in determining
1061424
5
courtroom procedure "as long as the exercise of that
discretion does not result in the denial of the defendant's
basic constitutional right." Hyde v. State, 778 So. 2d 199,
236 (Ala. Crim. App. 1998); see also Ephraim v. State, 627 So.
2d 1102, 1105 (Ala. Crim. App. 1993).
"'A court exceeds its discretion when its
ruling is based on an erroneous conclusion
of law or when it has acted arbitrarily
without employing conscientious judgment,
has exceeded the bounds of reason in view
of all circumstances, or has so far ignored
recognized principles of law or practice as
to cause substantial injustice. Hale v.
Larry Latham Auctioneers, Inc., 607 So. 2d
154, 155 (Ala. 1992); Dowdy v. Gilbert
Eng'g Co., 372 So. 2d 11, 13 (Ala. 1979).'"
Wright Therapy Equip., LLC v. Blue Cross & Blue Shield of
Alabama, 991 So. 2d 701, 705 (Ala. 2008) (quoting Edwards v.
Allied Home Mortgage Capital Corp., 962 So. 2d 194, 213 (Ala.
2007)).
Analysis
I.
Malone first argues that the trial court exceeded its
discretion by "actively soliciting questions from the jurors
at
the
conclusion
of
each
witnesses'[sic]
testimony."
Malone's
brief at 19. Malone concedes that there would be times when
1061424
See, e.g., Landt v. State, 87 P.3d 73 (Alaska Ct. App.
1
2004); State v. LeMaster, 137 Ariz. 159, 669 P.2d 592 (Ariz.
Ct. App. 1983); Nelson v. State, 257 Ark. 1, 513 S.W.2d 496
(1974); People v. McAlister, 167 Cal. App. 3d 633, 213 Cal.
Rptr. 271 (1985); Gurliacci v. Mayer, 218 Conn. 531, 590 A.2d
914 (1991); Bradford v. State, 722 So. 2d 858 (Fla. Dist. Ct.
App. 1998); Carter v. State, 250 Ind. 13, 234 N.E.2d 650
(1968); Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550
(Iowa 1980); State v. Culkin, 97 Haw. 206, 35 P.3d 233 (2001);
State v. Hays, 256 Kan. 48, 883 P.2d 1093 (1994); Transit
Auth. of River City v. Montgomery, 836 S.W.2d 413 (Ky. 1992);
6
it would be proper for a court to allow occasional questions
by the jurors. We granted certiorari review, however, to
determine whether
a trial
court
may actively solicit
questions
from jurors, which is a material question of first impression
before this Court.
Prather v. Nashville Bridge, 286 Ala. 3, 236 So. 2d 322
(1970), is the only published case from an Alabama court that
has presented the question whether jurors may directly
question witnesses. This Court did not, however, reach the
merits of that question in Prather because the issue was not
properly preserved for appeal.
A
substantial
number
of
state
courts
in
other
jurisdictions have considered the issue whether jurors may
question witnesses. They have overwhelmingly held that the
practice is not error per se. Moreover, "every [federal]
1
1061424
Commonwealth v. Urena, 417 Mass. 692, 632 N.E.2d 1200 (1994);
People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972); Callahan
v. Cardinal Glennon Hosp., 863 S.W.2d 852 (Mo. 1993); State v.
Graves, 274 Mont. 264, 907 P.2d 963 (1995); State v. Jumpp,
261 N.J. Super. 514, 619 A.2d 602 (1993); State v. Howard, 320
N.C. 718, 360 S.E.2d 790 (1987); State v. Fisher, 99 Ohio St.
3d 127, 789 N.E.2d 222 (2003); Cohee v. State, 942 P.2d 211
(Okla. Crim. App. 1997); State v. Anderson, 108 Utah 130, 158
P.2d 127 (1945); State v. Doleszny, 176 Vt. 203, 844 A.2d 773
(2004); and Williams v. Commonwealth, 24 Va. App. 577, 484
S.E.2d 153 (1997).
See, e.g. United States v. Collins, 226 F.3d 457, 461
2
(6th Cir. 2000); United States v. Hernandez, 176 F.3d 719, 724
(3d Cir. 1999); United States v. Feinberg, 89 F.3d 333, 336
(7th Cir. 1996); United States v. Bush, 47 F.3d 511, 515 (2d
Cir. 1995); United States v. Cassiere, 4 F.3d 1006, 1017-18
(1st Cir. 1993); United States v. Groene, 998 F.2d 604, 606
(8th Cir. 1993); United States v. Polowichak, 783 F.2d 410,
413 (4th Cir. 1986); and United States v. Callahan, 588 F.2d
1078, 1086 (5th Cir. 1979).
7
circuit to consider the practice has permitted it, holding
that the decision to allow juror questioning rests within the
discretion of the trial judge." United States v. Richardson,
233 F.3d 1285, 1289 (11th Cir. 2000). "Allowing jurors to
2
ask witnesses questions is 'neither radical nor a recent
innovation.' State v. Doleszny, 176 Vt. 203, [211,] 844 A.2d
773, [780] (2004). It is a practice with 'deeply entrenched'
roots in the common law. United States v. Bush, 47 F.3d 511,
515 (2nd Cir. 1995)." Medina v. People, 114 P.3d 845, 851
(Colo. 2005). "American courts have long sanctioned the
1061424
8
practice." United States v. Bush, 47 F.3d 511, 515 (2d Cir.
1995).
The jury's role in a trial is to "'"assure a fair and
equitable resolution of factual issues."'" Richardson, 233
F.3d at 1289 (quoting Standard Oil Co. of California v.
Arizona 738 F.2d 1021, 1031 (9th Cir. 1984), quoting in turn
Colgrove v. Battin, 413 U.S. 149, 157 (1973)). Allowing
jurors to question witnesses can "serve to advance the search
for truth by alleviating uncertainties in the jurors' minds,
clearing up confusion, or alerting the attorneys to points
that bear further elaboration." United States v. Sutton, 970
F.2d 1001, 1005 n.3 (1st Cir. 1992). Juror questioning can
also lead to "more attentive jurors and thereby leads to a
more informed verdict." Richardson, 233 F.3d at 1290 (citing
Larry
Heuer
& Steven
Penrod,
Increasing Juror Participation in
Trials: A Field Experiment with Jury Notetaking and Question
Asking, 12 Law and Hum. Behav. 231, 233-34 (1988)). Proper
communication is necessary for a jury to correctly fulfill its
factfinding duty and "there is reason to believe that
permitting receivers of information, e.g., jurors, to ask
questions enhances not only their ability to understand what
1061424
Georgia,
Minnesota,
Mississippi,
Nebraska,
and
Texas
have
3
rejected
the practice
of
juror
questioning
in
criminal
trials.
State v. Williamson, 247 Ga. 685, 279 S.E.2d 203 (1981); State
v. Costello, 646 N.W.2d 204 (Minn. 2002); Wharton v. State,
734 So. 2d 985 (Miss. 1998); State v. Zima, 237 Neb. 952, 468
N.W.2d 377 (1991); and Morrison v. State, 845 S.W.2d 882 (Tex.
Crim. App. 1992). Malone also references Ohio and Colorado
cases; however, neither of those states prohibits juror
questioning. Malone cites Ohio v. Gilden, 144 Ohio App. 3d 69,
759 N.E.2d 468 (Ohio Crim. App. 2001); however, in Ohio v.
Fisher, 99 Ohio St. 3d 127, 135, 789 N.E.2d 222, 230 (2003),
the Ohio Supreme Court overruled that decision and held that
"the practice of allowing jurors to question witnesses is not
error--constitutional or otherwise." Malone also cites two
Colorado cases: People v. Merklin, 80 P.3d 921 (Colo. Ct. App.
2003), and Medina v. People, 114 P.3d 845 (Colo. 2005). In
both of those cases, the courts held that allowing juror
questions was not structural error. Malone cites the Supreme
Court of Colorado's discussion in Medina of reasons other
courts have rejected the practice of juror questioning;
however, the Colorado Supreme Court goes on to reject those
reasons and to hold that allowing juror questions does not
"violate a defendant's constitutional rights to a fair trial
and an impartial jury." Medina, 114 P.3d at 857. Currently,
both Ohio and Colorado are among the states that do not
prohibit juror questioning.
9
is being communicated, but results in their putting forth more
effort to listen and to understand because they know they may
ask questions." Yeager v. Greene, 502 A.2d 980, 999-1000
(D.C. 1985).
Against
this
consensus,
a
few
states,
including
Mississippi and Georgia, have forbidden the practice in
criminal trials. As reasons for rejecting the practice,
3
1061424
10
those courts cite the jurors' lack of familiarity with the
rules of evidence, the risk of counsel's offending jurors by
objecting to their questions, a loss of juror objectivity, the
potential creation of antagonism between a juror and a
witness,
and
the
potential
of
disruption
to
courtroom
decorum.
Wharton v. State, 734 So. 2d 985 (Miss. 1998).
One of the concerns expressed by those jurisdictions that
do not allow juror questioning is that allowing jurors to
directly question witnesses will "redefine[] their role and
transform[] them from 'fair and impartial' to active
participants in the trial." Wharton, 734 So. 2d at 988. The
Nebraska Supreme Court was concerned that allowing jurors to
ask questions would result in "a change in [the jury] system
whereby jurors become advocates and possible antagonists of
the witnesses." State v. Zima, 237 Neb. 952, 956, 468 N.W.2d
377, 380 (1991). Even courts that allow jurors to ask
questions of witnesses note that "[i]t is difficult for jurors
to be both active participants in the adversarial process,
embroiled in the questioning of witnesses, and detached
observers, passing on the credibility of the witnesses and the
plausibility of the facts presented." Bush, 47 F.3d at 515.
1061424
11
In order to guard against this possibility, most courts that
allow juror questioning
of
witnesses require
certain
safeguards, such as the submission of written questions for
review by the trial judge and an opportunity for counsel to
object to the question out of the presence of the jury. See
Richardson, 233 F.3d at 1290-91; Bush, 47 F.3d at 511; and
Sutton, 970 F.2d at 1005-06.
We agree with the majority position that allowing jurors
to question witnesses is not error per se on the part of the
trial court. For the same reasons the aforementioned
jurisdictions have upheld the practice, we hold that it is
within the discretion of the trial court to allow jurors to
question a witness.
Malone argues that the trial court here erred when it
went beyond merely allowing jurors to ask questions of the
witnesses and actively solicited questions from the jurors.
In United States v. Ajmal, 67 F.3d 12, 15 (2d Cir. 1995), the
United States Court of Appeals for the Second Circuit held
that the trial court exceeded its discretion by allowing
extensive juror questioning as a matter of course and by
inviting questions at the end of each witness's testimony.
1061424
12
That court stated that the trial court's decision to invite
and allow
extensive
juror
questioning
was not "necessitated by
the factual intricacies of [that case]." Ajmal, 67 F.3d at
14. It also noted that it considered the practice of juror
questioning an allowable but disfavored practice.
In contrast, the Supreme Court of Utah, in a case in
which the trial judge invited jurors to ask questions at the
end of each witness's testimony, held:
"The fact that the trial court granted the jurors
permission to ask questions of witnesses without any
special request from them for this privilege does
not, in our opinion, in and of itself constitute
error. The determining factors as to whether error
has been committed is the type of questions asked
and allowed to be answered. If the questions asked
are not germane to the issues involved or are such
as
would
be
clearly
improper
and
therefore
prejudicial to the rights of the defendants to a
fair and impartial trial, the court's allowing them
to be answered would be error."
State v. Anderson, 108 Utah 130, 133, 158 P.2d 127, 128
(1945).
We agree with the Utah Supreme Court that soliciting
questions from jurors is not error per se, but that whether
the trial court has exceeded its discretion in so doing is
determined by the type of questions the trial judge allows and
whether those questions are prejudicial to the defendant's
1061424
The dissent
would
have us hold that
solicitation of juror
4
questions for witnesses is error as a general rule, except in
extraordinary or compelling circumstances, and, in support of
this argument, the dissent cites United States v. Ajmal,
supra. We note that other federal courts have not followed
Ajmal. See United States v. Feinberg, 89 F.3d 333, 336 (7th
Cir. 1996) (holding that juror questions were not prejudicial
per
se
where
"[f]ollowing each
witness's testimony,
[the trial
court judge] turned to the jury and inquired whether they had
any questions for the witness" and on 10 occasions jurors
asked questions). This case is closer to the limited
questioning present in Feinberg than to the "extensive"
questioning allowed in Ajmal. Moreover, as was the case in
Feinberg, Malone has not shown that he suffered any prejudice
from the limited number of juror questions allowed in this
case.
Justice Murdock, in his dissent, cites in support of his
argument also the decisions of the state courts of Georgia,
Minnesota, Mississippi, Nebraska, and Texas. However, those
courts have not established a general rule disallowing juror
questions only when those questions are solicited by the trial
court; rather, they have established a rule disallowing all
juror questions, whether or not they were solicited. In
disallowing all juror questions, those states are in the
decided minority. See supra note 1.
13
rights. However, we also agree with the Second Circuit Court
4
of Appeals that the practice should be disfavored and that a
trial court should not promote or encourage the practice
because it risks "altering the role of the jury from neutral
fact-finder to inquisitor and advocate." Ajmal, 67 F.3d at
15.
1061424
The federal courts and the courts of many states follow
5
guidelines for
juror
questioning
of
witnesses of the following
general form. First, the trial court should instruct the
jury, before hearing any witness testimony, that jurors will
be permitted to submit questions for the purpose of clarifying
the witness's testimony. See United States v. Collins, 226
F.3d 457, 463 (2000); Sutton, 970 F.2d at 1006. Second,
proposed questions from jurors should be submitted to the
judge in writing. See Bush, 47 F.3d at 516; Sutton, 970 F.2d
at 1005-06. Third, the judge should review the questions and
confer with the attorneys, outside the presence of the jury,
regarding any objections to the proposed questions. This
allows the attorneys to object to questions without fear of
alienating or antagonizing the jurors. See Richardson, 233
F.3d at 1291. It also protects against witnesses' answering
improper questions before the court can intervene. Finally,
the judge, not the juror, should "pose the questions to the
witness in a neutral manner." Richardson, 233 F.3d at 1290.
14
For the reasons set forth above, we hold that it is
within the discretion of the trial court to solicit from
jurors questions for the witnesses. We stress, however, that
there are dangers inherent in the process. The trial judge in
soliciting such questions should, therefore, adopt practices
that protect the rights of the accused.5
This Court will not reverse a trial court's judgment
unless, "after an examination of the entire cause, it should
appear that the error complained of has probably injuriously
affected substantial rights of the parties." Rule 45, Ala. R.
App. P. Here, the questions asked by the jurors were few in
1061424
15
number, factual in nature, and did not solicit improper
testimony. Moreover, Malone did not object in the trial court
to any specific question, nor does he now argue that any
specific question posed by a juror affected his substantial
rights. Therefore, it does not appear that Malone's
substantial
rights
were
affected
by
the trial court's
decision
to allow the witnesses to be questioned by the jurors or to
solicit those questions from the jurors. Accordingly, we
conclude that the trial court did not err in soliciting the
jurors to ask questions of the witnesses.
II.
Malone also argues that the trial court exceeded its
discretion by allowing a juror to ask Malone a question after
Malone and the State had rested their cases. At trial,
however, Malone did not object to the timing of this juror
question. Malone merely renewed his earlier objection to
jurors' asking questions. As the Court of Criminal Appeals
noted in its unpublished memorandum:
"'To preserve an issue for appellate review, the
issue must be timely raised and specifically
presented to the trial court and an adverse ruling
obtained.' Mitchell v. State, 913 So. 2d 501, 505
(Ala. Crim. App. 2005). The purpose of requiring an
issue to be preserved for review is to allow the
1061424
16
trial court the first opportunity to correct any
error. See, e.g., Ex parte Coulliette, 857 So. 2d
793 (Ala. 2003)."
Because Malone did not raise before the trial court the issue
of allowing a question to be asked after the parties had
rested their cases, the trial court did not have an
opportunity to correct its error, and Malone did not properly
preserve the issue for appeal. We, therefore, affirm the
judgment of the Court of Criminal Appeals on this ground as
well.
Conclusion
Because we hold that the trial court's soliciting the
jurors to question the witnesses did not affect Malone's
substantial
rights
and
because
Malone
has
not
demonstrated
any
other ground on which the Court of Criminal Appeals' decision
should be reversed, we affirm the judgment of the Court of
Criminal Appeals.
AFFIRMED.
Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Murdock, J., dissents.
Cobb, C.J., recuses herself.
1061424
I do not take issue with the various cases cited by the
6
main opinion in which courts have allowed questions from
jurors on an occasional, ad hoc basis. My concern is with the
more specific issue of the active solicitation by the trial
judge of jurors to engage in the questioning of witnesses,
especially when the practice is announced by the trial court
in advance.
17
MURDOCK, Justice (dissenting).
The main opinion recognizes that the practice of
soliciting questions from jurors "should be disfavored and
that a trial court should not promote or encourage the
practice because it risks 'altering the role of the jury from
neutral fact-finder to inquisitor and advocate.'" ___ So. 2d
at ___ (quoting United States v. Ajmal, 67 F.3d 12, 15 (2d
Cir. 1995)). The stated risk recognized by the United States
Court of Appeals for the Second Circuit in Ajmal weighs
sufficiently heavy in my mind to compel me to conclude that
the practice of actively soliciting juror questions should be
deemed error as a general rule and that it should be allowed
only
where
there
are
extraordinary
or
compelling
circumstances.
6
Numerous courts that have considered the practice of
actively soliciting juror questions for witnesses have
determined that the disadvantages of the practice outweigh the
1061424
18
potential advantages. As the Minnesota Supreme Court
explained in State v. Costello, 646 N.W.2d 204, 213 (Minn.
2002), "maintaining the neutral role of jurors in an
adversarial system outweighs whatever enhancement to the
truthfinding function that juror questioning allows." Even
among courts that have decided to consider the propriety of
juror questioning of witnesses on a case-by-case basis, there
is almost universally a recognition that "[a]llowing jurors to
pose questions during a criminal trial is a procedure fraught
with perils." See, e.g., United States v. Sutton, 970 F.2d
1001, 1005 (lst Cir. 1992). As the Sutton court aptly put it,
"[i]n most cases, the game will not be worth the candle."
Sutton, 970 F.2d at 1005 (emphasis added).
In Steele v. Atlanta Maternal-Fetal Medicine, P.C., 271
Ga. App. 622, 610 S.E.2d 546 (2005), the court explained:
"In this case, the procedures implemented by the
trial court modified the traditional roles of the
jury, the trial judge, and the lawyers. These
procedures encouraged the jury to take an active,
inquisitorial role, made the trial judge to some
extent the jury's mouthpiece in pursuing its own
version of the facts, and correspondingly reduced
counsels' control over the presentation of the
evidence. Clearly these changes have an effect on
the traditional adversary system. Although the
trial court cited many sources in support of its
opinion that the nationwide trend is to allow juries
1061424
19
to discuss the evidence before final deliberations
and to submit questions for witnesses, we are not
persuaded that Georgia has embraced that trend."
271 Ga. App. at 629, 610 S.E.2d at 552-53 (footnotes omitted).
See also State v. Williamson, 247 Ga. 685, 279 S.E.2d 203
(1981); Wharton v. State, 734 So. 2d 985 (Miss. 1998); and
State v. Zima, 237 Neb. 952, 468 N.W.2d 377 (1991). The court
in Brown v. State, 122 S.W.3d 794, 797-98 (Tex. Crim. App.
2003), stated:
"[T]he judge is a neutral arbiter between the
advocates; he is the instructor in the law to the
jury, but he is not involved in the fray. The
advocates have the task of producing the evidence,
arguing its significance, and pointing out the
logical inferences that flow from that evidence.
The
jurors,
meanwhile,
are
primarily
passive
listeners who are supposed to remain open-minded
until the evidence is completed and the judge has
given them the black-letter law in his written
charge. 'The adversary theory ... maintains that
the devotion of the participants, judge, juror and
advocate, each to a single function, leads to the
fairest and most efficient resolution of the
dispute.'5
_____________________
" See Morrison v. State, 845 S.W. 2d 882, 885
5
(Tex. Crim. App. 1992). This strict division of
labor has been explained as necessary because
'maintaining juror impartiality [is] fundamental to
adversarial integrity' .... Id. at 887."
1061424
The main opinion comments on my citation to cases from
7
Georgia, Minnesota, Mississippi, Nebraska, and Texas, stating
that the courts in these states have not recognized the same
rule I would recognize, i.e., a general prohibition of the
active solicitation of juror questions, with exceptions
available for extraordinary or compelling circumstances. ___
So. 2d at ___ n. 4. This is true. Indeed, the courts in
these states have taken the even more restrictive approach of
disallowing all juror questions. Accordingly, I cite these
cases for their articulation of the gravity of the risks
associated with allowing juror questions -- and only for this
purpose. Such use of these cases is appropriate in that, like
the courts in these states, I view the articulated risks as
weighing more heavily in the balance we must strike today than
does the main opinion.
The main opinion also notes that "[i]n disallowing all
juror questions, those states are in the decided minority."
___ So. 2d at ___ n. 4. The fact that a complete disallowance
of juror questions may be a decidedly minority view, however,
is inapposite to the merits of my view. It is not clear how
many states would at least impose a rule of the nature I
recommend.
I also note the main opinion's statement that state
courts have "overwhelmingly" held that the practice of
allowing juror questions is not error per se. ___ So. 2d at
___. Again, I emphasize that I do not take the position that
any questioning of witnesses by jurors is error or that juror
questioning is error per se. My point of departure from the
main opinion concerns only the active solicitation by the
trial judge of questions from the jurors. It is my position
that such a practice, as a general rule, should be treated as
error, and that juror questioning should be allowed only when
safeguards of the nature described in the main opinion are
used and, even then, only in extraordinary or compelling
circumstances.
20
(One footnote omitted.)7
1061424
21
In an effort to ameliorate some of the concerns raised by
allowing trial courts actively to solicit juror questioning of
witnesses, the main opinion identifies a number of recommended
safeguards. ___ So. 2d at ___ n. 5. The fact that these are
only "recommended" safeguards concerns me. Moreover, even if
these safeguards were mandatory, they do not go to the core
risk associated with allowing trial courts to actively solicit
juror questions.
A special concurrence written by the Chief Judge of the
United States Court of Appeals for the Eighth Circuit and
joined by one of the other two panel members in the case of
United States v. Johnson, 892 F.2d 707, 713 (8th Cir. 1989),
discusses the risks that exist in actively soliciting juror
questions, even if safeguards of the nature described in
note 5 of the main opinion were mandatory:
"Some would respond to the concerns about juror
questions by suggesting that the court could require
the questions to be submitted in writing, and the
court could then hear and rule on objections outside
of the jury's presence. Apart from concerns about
the disruption this procedure might cause, the
practice of juror questioning raises an even more
basic problem than matters of procedure: The
fundamental problem with juror questions lies in the
gross distortion of the adversary system and the
misconception of the role of the jury as a neutral
factfinder in the adversary process. Those who
1061424
22
doubt the value of the adversary system or who
question
its
continuance
will
not
object
to
distortion of the jury's role. However, as long as
we adhere to an adversary system of justice, the
neutrality and objectivity of the juror must be
sacrosanct."
(Some emphasis original; some added; footnote omitted.) The
author went on to say:
"Allowing juror questions disrupts neutrality,
because even a seemingly innocuous response to a
seemingly innocuous juror question can sway the
jury's appraisal of the credibility of the witness,
the party, and the case. The factfinder who openly
engages in rebuttal or cross-examination, even by
means of a neutral question, joins sides prematurely
and potentially closes off its receptiveness to
further suggestions of a different outcome for the
case. While nothing can assure the jury will remain
open-minded to the end, keeping the jury out of the
advocacy process increases the probability."
Johnson, 892 F.2d at 713 (emphasis added). Other courts have
expressed similar concerns. See, e.g., United States v.
Cassiere, 4 F.3d 1006, 1018 (lst Cir. 1993) ("[T]he practice
should be reserved for exceptional situations, and should not
become routine, even in complex cases.").
In Ajmal, supra, the United States Court of Appeals for
the Second Circuit concluded that, even with safeguards
similar to those recommended by the main opinion, the practice
1061424
23
of actively soliciting juror questions for witnesses should be
reserved for "extraordinary circumstances":
"At trial, over the objection of Ajmal's
attorney, the district court allowed extensive juror
questioning of witnesses. While conceding that the
decision to allow or disallow juror questioning of
witnesses
lies
within
the
district
court's
discretion, see United States v. Witt, 215 F.2d 580,
584 (2d Cir.), cert. denied, 348 U.S. 887, 75 S.Ct.
207, 99 L.Ed. 697 (1954), Ajmal asserts that the
district court abused its discretion by allowing
such questioning as a matter of course. We agree.
"....
"In our recent discussion of juror questioning
of witnesses, we made clear the danger inherent in
such a practice. See [United States v. ]Bush, 47
F.3d [511,] 515-16 [(2d Cir. 1995)]. When acting as
inquisitors, jurors can find themselves removed from
their appropriate role as neutral fact-finders. See
id. at 515; United States v. Johnson, 892 F.2d 707,
713 (8th Cir. 1989) (Lay, C.J., concurring). If
allowed to formulate questions throughout the trial,
jurors may prematurely evaluate the evidence and
adopt a particular position as to the weight of that
evidence before considering all the facts. See id.
at 714 ('The factfinder must remain neutral until it
is time to make its findings.'); DeBenedetto[ v.
Goodyear Tire & Rubber Co.], 754 F.2d [512,] 517
[(4th Cir. 1985)]. 'The practice also delays the
pace of trial, creates a certain awkwardness for
lawyers
wishing
to
object
to
juror-inspired
questions, and runs a risk of undermining litigation
strategies.' [United States v. ]Sutton, 970 F.2d
[1001,] 1005 [(1st Cir. 1992)]; see also Bush, 47
F.3d at 515. Moreover, juror questioning is
particularly troublesome when it is directed at the
defendant himself in a criminal trial. See Sutton,
970 F.2d at 1006 n. 6; [United States v. ]Lewin, 900
1061424
24
F.2d [145,] 147 [(8th Cir. 1990)]. In such
circumstances, premature deliberation and expressed
skepticism by jurors can be highly prejudicial.
"The case at hand does not present sufficiently
'extraordinary or compelling circumstances' as to
justify juror questioning of witnesses. Bush, 47
F.3d at 516 ('Balancing the risk that a juror's
question may be prejudicial against the benefit of
issue-clarification will almost always lead trial
courts to disallow juror questioning, in the absence
of extraordinary or compelling circumstances.').
The district court's decision to invite juror
questioning was not necessitated by the factual
intricacies of this banal drug conspiracy, nor was
it prompted by the urging of the jurors themselves.
Rather, the district court, as a matter of course,
established at the outset of the trial that jurors
would be allowed to question witnesses. Indeed, the
district
court
encouraged
juror
questioning
throughout the trial by asking the jurors at the end
of each witness's testimony if they had any queries
to pose. Not surprisingly, the jurors took
extensive advantage of this opportunity to question
witnesses,
including
Ajmal
himself.
Such
questioning tainted the trial process by promoting
premature deliberation, allowing jurors to express
positions through non-fact-clarifying
questions,
and
altering
the
role
of
the
jury
from
neutral
fact-finder
to
inquisitor
and
advocate.
Accordingly, the district court's solicitation of
juror questioning absent a showing of extraordinary
circumstances was an abuse of discretion.
"The government urges us to sustain the district
court's actions because it incorporated prophylactic
procedures to lessen the potential prejudice caused
by juror questioning of witnesses. Specifically,
the district court only accepted questions in
writing and posed from the bench only those
questions which it viewed to comport with the
Federal Rules of Evidence. Although the district
1061424
25
court substantially complied with the procedures
this Court advocated in Bush, 47 F.3d at 516 (juror
questions should be 1) in writing; 2) reviewed by
counsel in camera; and 3) put to the witness by the
court), such measures alone cannot purge the harm
caused by the extensive juror questioning in the
case at hand. Regardless of the procedures adopted
by the district court to vet juror questions, there
must be ample justification for adopting the
disfavored practice in the first instance. To hold
otherwise
would
sanction juror questioning of
witnesses
in
any
circumstance,
so
long
as
appropriate prophylactic measures are adopted. We
cannot accept such a proposition."
Ajmal, 67 F.3d at 14-15 (emphasis added).
In this case, the objection registered by defense counsel
at trial expressed common-sense concerns in a straightforward
manner:
"I object, in that I think though there may
arise an occasion where a juror may pose a question
to the Court that the Court will allow the juror to
ask that question to a witness, as a general rule I
would say that that is a policy that is fraught with
all kind of dangers.
"First, it takes away the opportunity for either
the State of [sic] the defendant to have a
prosecution strategy. And there may be questions
that we intentionally don't ask jurors [sic] for a
particular reason, and to allow the jury to have an
opportunity to ask a question takes away that
opportunity of the lawyer to have any kind of a
trial strategy.
"To allow the jurors to do that puts the jury in
a position of looking for facts and more than just
making a ruling on the evidence before them, but let
1061424
26
them have an opportunity to seek evidence. And I
think allowing the jury to expand their role to
where they're seeking evidence is outside the scope
of what a jury should do. Though I don't disagree
that there may be an occasion a juror may say,
'Excuse me, Judge. I'd like to ask something.' And
I think in those cases that -- depending on the
question it may be appropriate."
Malone's brief, pp. 23-24. Defense counsel then distinguished
the practice of allowing an occasional juror-initiated
question from the practice used in the present case of
"solicit[ing] a jury, if they have questions, as [the trial
court did] after every witness in this case, and asked them
and there's been a long pause if they didn't have a question
so [the trial court's] basically encouraging them to ask
questions." Id. at 24.
Malone's
argument
to
this
Court
also
contains
straightforward
reasons
for
not
allowing
the
active
solicitation of juror questions:
"The jurors are meant to be impartial observers, and
to be the finders of fact -- facts as presented to
them by the prosecution and the defendant. They do
not have the role of being investigators or
advocates. They only judge on the facts and evidence
presented to them. It is the role of the State to
present evidence and prove [its] case beyond a
reasonable doubt. By soliciting questions from the
jurors, [the trial judge puts jurors] in the shoes
of the prosecution, or the defense ....
1061424
27
"The actively soliciting of questions from the
jury leads the jury to believe that their role is
something more than neutral and impartial fact
finders, and triers of the evidence as presented to
them by the State and the defendant. [Malone] would
also argue that the trial court advising the jury at
the beginning of the trial that they will be allowed
to ask questions puts both defense and state
attorneys at a disadvantage. This practice is
likely to require the attorney to change their trial
strategy, or even their theory of defense, thereby
causing prejudice to the defendant, and ultimately
change the outcome of the trial."
Malone's brief, pp. 25-26.
Based on the foregoing, I respectfully dissent. | December 19, 2008 |
d1b99142-b636-4783-9703-00bbb7ef3040 | James Robinson v. State of Alabama | N/A | 1070180 | Alabama | Alabama Supreme Court | REL: 12/19/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070180
____________________
James Robinson
v.
State of Alabama
Appeal from Montgomery Circuit Court
(CV-07-1003)
SEE, Justice.
James Robinson filed a declaratory-judgment action in the
Bibb Circuit Court challenging an Alabama Department of
Corrections
("DOC")
disciplinary
action
arising
out
of
conduct
that occurred while he was incarcerated in the Bibb
1070180
Ala. Code 1975, § 41-22-3(9)g.1. excludes from judicial
1
review "any rules or actions relating to ... [t]he conduct of
inmates of public institutions."
2
Correctional Facility. The Bibb Circuit Court entered an
order transferring Robinson's case to the Montgomery Circuit
Court and converting it to a petition for the writ of
certiorari.
The
Montgomery
Circuit
Court
dismissed
Robinson's
petition, and Robinson appealed to the Court of Criminal
Appeals. That court transferred his appeal to this Court. We
now transfer it back to the Court of Criminal Appeals.
In Ex parte Boykins, 862 So. 2d 587, 593 (Ala. 2002),
this Court stated:
"[T]he DOC, as stated in Ala. Code 1975, § 14-1-1.2,
is an 'administrative department responsible for
administering and exercising direct and effective
control over penal and corrections institutions
throughout this state.' Ala. Code 1975, § 41-22-
3(1), defines 'agency' as '[e]very board, bureau,
commission,
department,
officer,
or
other
administrative office or unit of the state.'
(Emphasis added [in Boykins].) Accordingly, the DOC
is an administrative agency that is within the scope
of the Alabama Administrative Procedure Act, Ala.
Code 1975, § 41-22-1 et seq. ('the Act'). The
appropriate remedy to review the actions of
administrative agencies is an appeal made in
accordance with § 41-22-20(a) of the Act. However,
pursuant to § 41-22-3(9)(g)(1)[ ], as noted in Cox
1
[v. State, 628 So. 2d 1075 (Ala. Crim. App. 1993)],
Boykins has no right to avail himself of such
1070180
3
judicial review."
"Alabama law is clear that, in the absence of a right of
appeal,
a
party
seeking review
of
a ruling
by
an
administrative agency may petition the circuit court for a
common law writ of certiorari." State Pers. Bd. v. State
Dep't of Mental Health & Mental Retardation, 694 So. 2d 1367,
1371 (Ala. Civ. App. 1997) (citing Ellard v. State, 474 So. 2d
743 (Ala. Crim. App. 1984)). Therefore, the Bibb Circuit
Court correctly converted Robinson's action seeking a
declaratory judgment to a petition for the writ of certiorari.
We have held that the Court of Criminal Appeals has
jurisdiction to hear an inmate's appeal of the trial court's
denial of his petition for the writ of certiorari challenging
a decision of the DOC. Collins v. Alabama Dep't of Corr., 982
So. 2d 1078, 1081 (Ala. 2007) ("The Court of Criminal Appeals
has misconstrued this Court's decision in Boykins. In
Boykins, we certainly did not state, and we did not intend to
imply, that the Court of Criminal Appeals' jurisdiction is
limited to appeals in cases where the petitions for a writ of
certiorari challenge DOC actions involving the conduct of
inmates while they are incarcerated. Consequently, we
1070180
4
overrule Collins[ v. Alabama Department of Corrections, 911
So. 2d 739 (Ala. Crim. App. 2004)], and we transfer this
appeal to the Court of Criminal Appeals. Further, we overrule
all decisions of the Court of Criminal Appeals that conflict
with today's decision, including, but not necessarily limited
to, Boykins v. State, 862 So. 2d 594 (Ala. Crim. App. 2003)
(opinion on remand from the Alabama Supreme Court), McConico[
v. Alabama Department of Corrections, 893 So. 2d 577 (Ala.
Crim. App. 2004)], Jacobs[ v. Alabama Department of
Corrections, 900 So. 2d 485 (Ala. Crim. App. 2004)], Beck[ v.
Alabama Board of Pardons & Paroles, 907 So. 2d 1096 (Ala.
Crim. App. 2005)], and Block[ v. Alabama Department of
Corrections, 923 So. 2d 342 (Ala. Crim. App. 2005)]."). Based
on our decisions in Boykins and Collins, we transfer
Robinson's appeal to the Court of Criminal Appeals.
APPEAL TRANSFERRED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | December 19, 2008 |
06ee942f-777d-4fd2-9954-ff1b07dfa35a | Prattville Memorial Chapel and Memory Gardens, Inc. v. W.E. Parker | N/A | 1061756 | Alabama | Alabama Supreme Court | REL: 12/05/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1061756
_________________________
Prattville Memorial Chapel and Memory Gardens, Inc.
v.
W.E. Parker
Appeal from Autauga Circuit Court
(CV-05-22)
LYONS, Justice.
Prattville Memorial Chapel and Memory Gardens, Inc.
("Memorial Chapel"), appeals from a judgment entered on a jury
verdict against it and in favor of W.E. Parker on Parker's
1061756
2
claims alleging breach of contract and fraud. We affirm in
part and reverse in part.
Procedural History
Parker sued Prattville Memory Gardens, Inc. ("PMG"), in
the Autauga Circuit Court on January 27, 2005. Parker
asserted claims of breach of contract and fraud arising from
his purchase in 1976 of interment rights to 16 plots in PMG's
cemetery. PMG filed a timely answer to the complaint, and the
parties proceeded with discovery. Although not named as a
party to Parker's action, Memorial Chapel, the current owner
of the cemetery, which it purchased in 1993 from an entity
that had purchased it from PMG, filed an answer to the
complaint and a motion for a summary judgment on January 12,
2006. Subsequently, on February 1, 2006, Parker amended his
complaint to name Memorial Chapel as a defendant. The trial
court denied Memorial Chapel's motion for a summary judgment
and its later renewed motion for a summary judgment.
Parker's claims were tried to a jury in March 2007.
Pursuant to Rule 50(a), Ala. R. Civ. P., Memorial Chapel moved
for a judgment as a matter of law ("JML") at the close of
Parker's evidence and again at the close of all evidence. The
1061756
3
trial court denied both motions, finding that Parker had
presented sufficient evidence to submit his claims to the
jury. Also at the close of all evidence, Parker moved for a
JML on the issue whether Memorial Chapel was a continuation of
PMG. Pursuant to that motion, and over Memorial Chapel's
objection, the trial court held as a matter of law that
Memorial Chapel was a continuation of PMG and that it had
assumed PMG's liabilities and responsibilities.
Upon the trial court's determination that Memorial Chapel
was a continuation of PMG and therefore that PMG and Memorial
Chapel were one and the same entity, the case was submitted to
the jury against only Memorial Chapel. On this rationale, the
jury was never given the opportunity to return a verdict
against PMG. The trial court's granting of Parker's motion
for a JML as to successor liability left Memorial Chapel as
the lone remaining defendant, and PMG was thereby dismissed
from the action.
Attorneys for Parker and Memorial Chapel gave closing
arguments; however, neither party asked the official court
reporter to transcribe the arguments, and no transcription of
the arguments was made. The trial court charged the jury;
1061756
4
several of the charges were given over Memorial Chapel's
objection. After deliberating, the jury returned a $30,000
compensatory-damages
award
against
Memorial
Chapel
on
Parker's
breach-of-contract
claim,
a
$50,000
compensatory-damages
award
against Memorial Chapel on Parker's fraud claim, and a
$1,000,000 punitive-damages award against Memorial Chapel on
Parker's fraud claim. The trial court entered a judgment on
the jury's verdict.
Memorial Chapel moved to remit the compensatory-damages
awards and for a hearing pursuant to § 6-11-23(b), Ala. Code
1975, Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989),
and Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986),
to determine whether the punitive-damages award was excessive.
Memorial Chapel also renewed its motion for a JML pursuant to
Rule 50(b), Ala. R. Civ. P., and alternatively moved for a new
trial and to alter, amend, or vacate the judgment pursuant to
Rule 59, Ala. R. Civ. P. Additionally, Memorial Chapel moved
the trial court to authorize a transcription of the parties'
closing arguments.
The trial court held a hearing on Memorial Chapel's
postjudgment motions and received evidence on the motion for
1061756
5
a remittitur. The trial court entered an order denying each
of Memorial Chapel's postjudgment motions. Memorial Chapel
then filed a timely notice of appeal.
Facts
At trial, the parties stipulated that in April 1976 a
representative of PMG, Philip Gidiere, sold Parker interment
rights to 16 grave sites in the cemetery owned by PMG for a
total purchase price of $1,595. The parties also stipulated
that Parker received a deed for the rights dated July 14,
1976. The parties did not stipulate to any other facts.
Gidiere did not testify at trial, and the only evidence
submitted to the jury regarding the events surrounding
Parker's purchase of the interment rights in 1976 was Parker's
testimony, a drawing, a written contract, and the July 14,
1976, deed.
Parker testified to the following facts: Parker was 71
years old at the time of trial. He first knew Gidiere in 1965
when he rented a house from Gidiere. Several times during the
following years, Gidiere asked Parker to purchase interment
rights in PMG's cemetery; however, Parker declined. In the
spring of 1976, Gidiere offered Parker what Gidiere called an
1061756
6
"estate plot" in the cemetery. Parker and Gidiere went to the
cemetery, where Gidiere showed Parker a specific plot, later
identified as lot no. 60, in an undeveloped part of the
cemetery. Without objection from Memorial Gardens, Parker
testified regarding Gidiere's description of what Parker would
receive if he purchased the estate plot. Gidiere stated that
Parker's estate plot would be bordered by plants along the
edge of the cemetery and between adjoining estate plots.
Gidiere told Parker that the estate plot would have a 4-foot
walkway down the center with a total of 16 graves, 2 rows of
4 graves on each side of the walkway. Gidiere also told
Parker that the estate plot would have sections for plants,
family markers, individual markers, and a bench. Gidiere
advised Parker that his family could choose whether to have
plants on either side of the estate plot and along the
walkway.
Parker submitted a drawing into evidence, which he
testified Gidiere gave him shortly after their visit to the
cemetery ("the drawing"). The drawing is not dated; however,
it matches Parker's testimony regarding Gidiere's description
of the estate plot. According to the drawing, the center
1061756
The cemetery is divided into seven sections referred to
1
as gardens; each garden has a different name.
7
walkway was to be 4 feet wide, and each interment space was to
be 3 feet 9 inches by 10 feet. During cross-examination,
Memorial Chapel's attorney asked: "Well, Philip Gidiere told
you your plots were going to look like [the drawing], didn't
he?" Parker answered: "Correct." Parker testified that based
on the drawing and on Gidiere's description, he decided to
purchase the estate plot, and he paid $1,595 for it.
Parker testified that after he paid for the estate plot,
Gidiere delivered a written contract ("the contract") to him.
In response to questions asked by Memorial Chapel's attorney
during cross-examination, Parker testified that he owned the
estate plot before he received any written contract from PMG.
The contract, dated April 14, 1976, identified Parker as the
purchaser and PMG as the seller of interment rights to 16
spaces in lot no. 60 in a part of the cemetery referred to as
the Garden of Devotion. The contract identified Prim Parker
1
as Parker's wife, but not as a purchaser. It stated a
purchase price of $1,595. The contract did not specify that
Parker was to receive an estate plot, nor did it describe the
walkway, plants, and other features shown in the drawing. The
1061756
8
contract provided that Parker would receive a deed for the
interment rights and that Parker would "comply at all times
with all Rules and Regulations heretofore or hereafter
promulgated and adopted for the operation, care, and control
of said Prattville Memory Gardens." The contract also
contained the following paragraphs:
"9.
Entire
Agreement:
This
instrument
represents the entire agreement of the parties
hereto, and shall be binding upon and inure to the
benefit
of
heirs,
next
of
kin,
personal
representatives, successors and assigns of the
parties.
"10. PURCHASER CERTIFIES THAT NO ORAL OR
WRITTEN STATEMENTS, PROMISES, REPRESENTATIONS OR
GUARANTEES OTHER THAN THOSE CONTAINED HEREIN HAVE
BEEN MADE BY SELLER, ITS AGENTS, SERVANTS, OR
EMPLOYEES, WITH REFERENCE TO CARE AND MAINTENANCE OF
THE SAID PLOT OR PRATTVILLE MEMORY GARDENS, OR
OTHERWISE IN RELATION TO THIS AGREEMENT."
(Capitalization in original.) Gidiere signed the contract on
behalf of PMG.
Parker subsequently received a deed dated July 14, 1976,
that granted interment rights in the 16 spaces in lot no. 60
in PMG's Garden of Devotion to "Dr. W.E. Parker and/or Prim H.
Parker (wife)." As was the case with the contract, the deed
did not specify that Parker was to receive an estate plot, nor
did it describe the walkway, plants, and other features shown
1061756
9
in the drawing. Also as was the case with the contract, the
deed provided that it was "subject to the Rules and
Regulations now in effect, or which may hereafter be adopted
or enacted for the control, regulation, and government of said
cemetery." The deed provided that those rules and regulations
were "on file for inspection in the office of [PMG]" and were
incorporated by reference.
Parker did not sign the contract or the deed. He
testified that he did not sign anything with respect to his
purchase. Without objection from Memorial Gardens, Parker's
attorney asked: "[W]hat paper describes your agreement with
that cemetery?" and Parker answered: "They didn't have one.
I had his [Gidiere's] word and his description, and the
drawing, to back it up. That's what he told me."
After Parker received the deed, he and his wife, Prim,
divorced. Parker testified that, after the divorce, Prim had
no interest in the estate plot and she would not be buried
there. The parties did not submit any other evidence
regarding Prim's interest, or lack thereof, in the estate
plot.
1061756
10
As of the date of trial, Parker had not buried or
attempted to bury anyone in the cemetery. The record shows
that the cemetery was operated by three companies between
Parker's April 1976 purchase and the March 2007 trial. PMG
operated the cemetery until 1989, when it was sold to Douglas
Massey, Timothy Massey, Curtis Massey, Sr., Curtis Massey,
Jr., James Seal, and Jefferson Memorial Companies, Inc.
(collectively "Jefferson"). Jefferson continued to operate
the cemetery under the name "Prattville Memory Gardens." It
also developed a funeral home on the property. The evidence
showed that, when Jefferson purchased the cemetery, it was
assigned all PMG's "pre-need contracts," contracts for
interment spaces purchased before burial was needed. The
purchase agreement pursuant to which Jefferson purchased the
cemetery from PMG provided that Jefferson assumed no
liabilities, debts, or obligations of PMG's other than those
stated in the agreement.
In 1993, Jefferson sold the cemetery and funeral home to
Memorial Chapel, a corporation owned by Tom and Carol
Huntington; Tom Huntington was an employee of Jefferson.
Memorial Chapel operated the cemetery and funeral home from
1061756
11
1993 through the trial in March 2007. Upon Memorial Chapel's
purchase of the cemetery, the Huntingtons placed a photograph
of Gidiere in the funeral-home lobby with a plaque stating:
"Founder of Prattville Memory Gardens." The asset-purchase
agreement between Memorial Chapel and Jefferson provided that
Memorial Chapel was to "assume the aggregate amount of all
contractual liabilities ... to provide funeral and interment
services, interment spaces and related merchandise, of
[Jefferson] and all preceding owners of the cemetery facility
...." (Emphasis added.) A separate document specified
Jefferson's transfer to Memorial Chapel of the pre-need
contracts. That document provided: "[Memorial Chapel] does
hereby assume and agree to perform the contractual obligations
of [Jefferson] pertaining to the Pre-Need Contracts ...." The
parties do not dispute that Parker's was one of the pre-need
contracts Memorial Chapel assumed. The asset-purchase
agreement between Jefferson and Memorial Chapel also provided
that, except for pre-need contracts: "[Memorial Chapel] shall
not assume by virtue of this agreement or the transactions
contemplated herein any obligation or liability of [Jefferson]
of any kind whatsoever ...."
1061756
12
Parker testified that between his purchase of the plot in
1976 and the trial in 2007, whenever he learned that the
cemetery had a new owner, he would call the cemetery office
"just to verify." In 1992, in response to one such call,
Parker received a letter from Jefferson confirming that he had
16 "cemetery lots" in the Garden of Devotion. Parker
testified: "Whenever they would confirm that I had the sixteen
spaces, automatically in my mind, I assumed I had the estate."
Parker also occasionally drove by the cemetery to see his
plot. On cross-examination he confirmed that between 1976 and
2007 the plot was never developed with a walkway, plants, or
other features as shown in the drawing. Parker explained that
he understood that he would have what was shown in the drawing
when he first buried someone in one of the interment spaces in
the plot.
In July 2004, Parker visited the cemetery and noticed
that someone had been buried near his plot. Parker asked
Carol Huntington to confirm that his plot had not been
encroached. During the course of their conversation, Parker
told Carol Huntington that he had an "estate" plot and Carol
Huntington denied knowledge of the existence of any "estate
1061756
13
plot" in the cemetery. Parker later showed the drawing to
Carol Huntington and Marilyn Kilgore, a Memorial Chapel
employee. Both women denied that the cemetery had any plots
laid out as shown in the drawing. They told Parker that lot
no. 60, in which he had interment rights, consisted of 16
standard burial spaces.
Tom Huntington, Carol Huntington, and Marilyn Kilgore
each testified that Memorial Chapel's file regarding Parker's
purchase did not include a copy of the drawing and that they
had never seen a similar drawing before. They also testified
that after Parker showed them the drawing, they searched
Memorial Chapel's records for similar drawings and found no
plots like those shown on the drawing. Carol Huntington
testified that she found nothing in Memorial Chapel's files
that referred to "estate plots" and that none currently
existed in the cemetery. Tom and Carol Huntington both
testified that they had never heard the term "estate plot"
before Parker's July 2004 inquiries.
Tom and Carol Huntington testified that Parker had
interment rights in 16 standard burial spaces but that he had
no right to or space for a walkway or the other features shown
1061756
14
on the drawing. Tom Huntington testified that Parker would
not receive those amenities. According to Tom Huntington,
granting Parker the amenities shown on the drawing would
require the equivalent of four additional burial spaces and
there was no room among the plots adjoining lot no. 60 to
grant Parker what he requested. At the time of trial,
interment rights to a single grave site in the cemetery sold
for $1,032.
Tom Huntington, Carol Huntington, and Marilyn Kilgore
also testified that the rules and regulations of the cemetery
did not allow, and never had allowed, plants between interment
spaces as shown in the drawing. Rule 56 of the rules and
regulations Gidiere had drafted stated: "All work and all
planting of any kind on all lots and graves is strictly
prohibited." The same rule is included in the rules and
regulations the Huntingtons used to operate the cemetery. Tom
Huntington testified that plants were not allowed between
interment spaces because the plants would have to be removed
to make space for funerals at nearby spaces.
The individual burial spaces shown on Memorial Chapel's
maps, including those in lot no. 60, are 4 feet by 11 feet,
1061756
15
somewhat larger than those spaces shown on the drawing. James
Seale, one of the owners of the cemetery during the time
Jefferson owned it, testified that when Jefferson purchased
the cemetery, it received maps of the burial spaces and that
he did not recall Jefferson receiving any drawings. Seale
further testified that the only maps Jefferson had were those
it had received from PMG. Tom Huntington testified that none
of the maps Memorial Chapel had obtained from Jefferson showed
burial spaces laid out like those in the drawing, with
walkways and plants among the burial spaces. Tom Huntington
denied that Memorial Chapel had altered any of the maps it
received from Jefferson.
Parker presented testimony from George Creel, who the
documentary evidence showed was president of PMG in 1989.
According to Creel, PMG had sold "family estates," like the
one shown in the drawing, and he had personally purchased one.
Creel testified that, when he was president of PMG, the
cemetery maps showed these family estates, and the maps were
given to Jefferson upon Jefferson's purchase of the cemetery
in 1989. He also testified that PMG's records regarding
1061756
16
Parker's plot, which were given to Jefferson, included a copy
of the drawing.
Creel also testified that, sometime after Jefferson
purchased the cemetery, he saw Tom Huntington, who was then
employed by Jefferson, removing plants from between the family
estates. Tom Huntington denied doing so and testified that
there never were plants between burial spaces. Creel
testified that, if Parker had presented a body for burial
while Creel was president of PMG, he would have allowed Parker
to bury the body in accordance with the drawing. Memorial
Chapel called Creel's credibility into question during cross-
examination,
soliciting testimony that Creel had been
convicted of theft by deception on an unrelated matter.
Parker testified that he would not have considered
purchasing 16 standard gave sites without the walkway between
the sites and the other amenities. Parker testified that he
was worried about his own burial, and, because he had health
problems, he worried that the issue of his burial would not be
resolved before he died. Parker stated that after his first
conversation with Carol Huntington in July 2004, he felt
stunned, shocked, and a little angry. Parker testified that,
1061756
17
after he showed her the drawing in August 2004, he had a bad
feeling. He described feeling angry and thought that he had
been treated wrongfully, unfairly, and unjustly. He stated
that he thought about the situation nearly every day and that
he did not want the same thing to happen to others. On cross-
examination, Parker admitted that he had suffered from
depression after his divorce and that he had been on
prescription medicine for depression at some time in the past.
Analysis
Memorial Chapel raises more than 20 issues on appeal.
Our resolution of several of these issues pretermits
discussion of the rest.
I.
Continuation and Assumption of Liabilities as to the
Fraud Claim Against Memorial Chapel
Memorial Chapel argues that the trial court erred in
denying its motion for a JML as to Parker's fraud claim,
specifically as to whether it may be held liable for tort
claims against PMG arising from activities that predated
Memorial Chapel's acquisition of the cemetery. Memorial
Chapel also argues that the trial court erred in granting
Parker's motion for a JML and holding that Memorial Chapel is
1061756
18
liable for tort claims predicated on the pre-acquisition
conduct of PMG. We apply the following standard of review:
"When reviewing a ruling on a motion for a JML,
this Court uses the same standard the trial court
used initially in deciding whether to grant or deny
the motion for a JML. Palm Harbor Homes, Inc. v.
Crawford, 689 So. 2d 3 (Ala. 1997). Regarding
questions of fact, the ultimate question is whether
the nonmovant has presented sufficient evidence to
allow the case to be submitted to the jury for a
factual resolution. Carter v. Henderson, 598 So. 2d
1350 (Ala. 1992). The nonmovant must have presented
substantial evidence in order to withstand a motion
for a JML. See § 12-21-12, Ala. Code 1975; West v.
Founders Life Assurance 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, 598 So. 2d at 1353. In reviewing a ruling on
a motion for a JML, 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)."
Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875
So. 2d 1143, 1152 (Ala. 2003).
This Court has stated:
"As a general rule, where one company sells or
otherwise transfers all its assets to another
company, the transferee is not liable for the debts
and liabilities of the transferor unless (1) there
is an express agreement to assume the obligations of
1061756
19
the transferor, (2) the transaction amounts to a de
facto merger or consolidation of the two companies,
(3) the transaction is a fraudulent attempt to
escape liability, or (4) the transferee corporation
is a mere continuation of the transferor. 15
Fletcher, Cyclopedia Corporations § 7122 (Perm. ed.
1973); 19 Am. Jur. 2d § 1546."
Andrews v. John E. Smith's Sons Co., 369 So. 2d 781, 785 (Ala.
1979). See also Lloyd Noland Found., Inc. v. City of
Fairfield Healthcare Auth., 837 So. 2d 253, 265 (Ala. 2002);
Colonial Bank of Alabama v. Coker, 482 So. 2d 286, 292 (Ala.
1985).
During trial, Parker attempted to show that Memorial
Chapel had expressly assumed all the liabilities of its
predecessors and thus was liable in tort pursuant to the first
exception stated above. However, the asset-purchase agreement
between Memorial Chapel and its predecessor, Jefferson,
contained an express assumption of contractual liabilities and
a disclaimer of all other liabilities, which would exclude the
tort liability upon which the jury verdict in favor of Parker
on his fraud claim was based. Accordingly, the first
exception to the general rule regarding transferees does not
apply to Parker's fraud claim. Parker never argued that the
second or third exception applies. Therefore, we must
1061756
Cf. Andrews, 369 So. 2d at 785 (stating the exception as
2
part of a general rule and declining to hold that the
exception did not apply in product-liability actions).
20
determine whether the trial court erred when it entered a JML
in Parker's favor based on the fourth exception--that Memorial
Chapel was a mere continuation of its predecessors.
Memorial Chapel contends that the continuation exception
applies only to liabilities arising out of product-liability
claims. However, this Court has applied the exception in
other contexts, and Memorial Chapel has not presented any
reason for us to limit the application of the exception to
product-liability actions. See, e.g., Parrett Trucking, Inc.
v. Telecom Solutions, Inc., 989 So. 2d 513, 519-20 (Ala. 2008)
(considering the exception in a breach-of-contract action);
Asher v. KCS Int'l, Inc., 659 So. 2d 598, 601 (Ala. 1995)
(considering the exception in a breach-of-warranty action);
Coker, 482 So. 2d at 293 (considering the exception as to
guarantee issued by bank's predecessor). Accordingly, the
2
exception may apply to cases outside the product-liability
context, and we will consider whether Parker presented
sufficient evidence showing that it applies here.
1061756
21
In Turner v. Wean United, Inc., 531 So. 2d 827, 830 (Ala.
1988), this Court explained that there must be substantial
evidence of four factors to support a finding that a successor
corporation is a mere continuation of its predecessor:
"'1)
There
was
basic
continuity
of
the
enterprise of the seller corporation, including,
apparently, a retention of key personnel, assets,
general business operations and even the [seller's]
name.
"'2) The seller corporation ceased ordinary
business operations, liquidated, and dissolved soon
after distribution of consideration received from
the buying corporation.
"'3) The purchasing corporation assumed those
liabilities and obligations of the seller ordinarily
necessary for the continuation of the normal
business operations of the seller corporation.
"'4) The purchasing corporation held itself out
to the world as the effective continuation of the
seller corporation.'"
(Quoting Turner v. Bituminous Cas. Co., 397 Mich. 406, 430,
244 N.W.2d 873, 883-84 (1976).) Parker contends that he is
not required to establish each of these four factors, if the
totality of the transaction demonstrates that Memorial Chapel
was a continuation of its predecessors. Parker bases this
contention on this Court's statements in Andrews, supra, on
1061756
22
Rivers v. Stihl, Inc., 434 So. 2d 766 (Ala. 1983), and on
cases from other jurisdictions.
This Court's 1976 decision in Andrews stated the general
rule that a transferee is not liable for the debts and
liabilities of the transferor and identified four exceptions
to that rule. In determining whether to apply the rule and
its exceptions in a product-liability context, this Court
considered a case from the Michigan Supreme Court, Turner v.
Bituminous Casualty Co., supra. This Court noted the Michigan
court's holding that "there may be a cause of action where the
totality of the transaction demonstrates a basic continuity of
the enterprise." Andrews, 369 So. 2d at 785. This Court then
found the following reasoning from Turner v. Bituminous
Casualty Co. persuasive: "'Justice would be offended if a
corporation which holds itself out as a particular company for
the purpose of sales, would not be estopped from denying that
it is that company for the purpose of determining products
liability.'" 369 So. 2d at 785 (quoting Turner v. Bituminous
Cas. Co., 397 Mich. at 426, 244 N.W.2d at 882). Although this
Court in Andrews found the estoppel theory persuasive, it
declined to base a ruling on that theory because the plaintiff
1061756
23
had not asserted it in the complaint. Id. This Court in
Andrews did not expressly adopt a totality-of-the-transaction
approach
instead
of
the
four-factors
requirement
for
determining whether a successor corporation is a mere
continuation of its predecessor. Indeed, Andrews did not
expressly examine the four factors at all, and we cannot say
that the statements in Andrews precluded this Court's
subsequent application of the factors.
This Court's 1983 decision in Rivers v. Stihl, Inc.,
supra, quoted Andrews as having held that "a transferee may be
held liable for its predecessor's liabilities 'where the
totality of the transaction demonstrates a basic continuity of
the enterprise.'" 434 So. 2d at 771 (quoting the discussion
of Turner v. Bituminous Casualty Co. in Andrews, 369 So. 2d at
785). The Rivers opinion stated that this Court had adopted
in Andrews a "'basic continuity of the enterprise' test." 434
So. 2d at 771. This Court reversed the trial court's summary
judgment for the defendant, finding that the plaintiff had
presented sufficient evidence from which a jury could have
found a continuity of the enterprise. 434 So. 2d at 772. This
Court never stated the four factors of the continuation
1061756
Although Parker does not cite them, this Court's
3
decisions in Matrix-Churchill v. Springsteen, 461 So. 2d 782
(Ala. 1984), and Colonial Bank of Alabama v. Coker, 482 So. 2d
286 (Ala. 1985), also discuss the continuation exception in
more general terms. In Springsteen, this Court applied only
three of the four factors as "guidelines," 461 So. 2d at 787,
and in Coker this Court simply noted some of the "traditional
indicia" of the continuation exception, 482 So. 2d at 293.
24
exception, but based its finding on several "factors" from
Andrews and Turner v. Bituminous Casualty Co., including an
express assumption of liabilities.3
Parker also relies on cases from the Michigan Court of
Appeals and the United States District Court for the Western
District of Michigan to show that a plaintiff need not submit
evidence of each factor in order to show a continuity of the
enterprise under the totality-of-the-transaction approach.
Ammend v. BioPort, Inc., 322 F. Supp. 2d 848 (W.D. Mich.
2004); Pelc v. Bendix Mach. Tool Corp., 111 Mich. App. 343,
314 N.W.2d 614 (1981). However, this Court expressly applied
the four factors in 1988 in Turner v. Wean United, Inc.,
supra. Turner cited Andrews and Rivers, but went further than
those cases did and expressly applied all four factors,
ultimately concluding that the successor corporation did not
fall within the continuation exception. Since our decision in
1061756
25
Turner, this Court has rejected arguments that the four
factors of the continuation exception are not mandatory.
In Brown v. Economy Baler Co., 599 So. 2d 1, 3 (Ala.
1992), this Court stated that the "factors are to be
considered in the conjunctive, not in the alternative."
Accordingly, we affirmed the trial court's summary judgment
for the defendant because the plaintiff had failed to present
substantial evidence of the second and third factors.
Likewise, in Asher v. KCS International, Inc., 659 So. 2d at
601, the plaintiff argued that "when the totality of the
circumstances demonstrates a basic continuity of enterprise it
should not be necessary that each of the four factors be
proved." Based on Brown, we disagreed, stating that "each of
the four factors must be met before a successor corporation
may be held liable based on the 'mere continuation' of the
enterprise exception." 659 So. 2d at 601. Most recently, in
Parrett Trucking, Inc. v. Telecom Solutions, Inc., this Court
stated: "[U]nder the continuity-of-enterprise test adopted by
this Court, there is no 'weighing' of the factors; rather, as
we stated in Asher, there must be 'substantial evidence of
each of the four factors.'" 989 So. 2d at 521-22. In Parrett
1061756
26
Trucking, we reversed the trial court's judgment, holding that
the successor corporation could not be held liable as a
continuation of the predecessor corporation because the
plaintiff had not presented evidence that the predecessor
corporation had been dissolved. 989 So. 2d at 522.
Parker argues that Brown and Asher are inconsistent with
Andrews and Rivers and that we should follow a totality-of-
the-transaction approach to determine whether Memorial Chapel
was a mere continuation of PMG instead of requiring proof of
all four factors. However, our decisions in Brown and Asher
and more recently in Parrett Trucking clearly state, over
objections identical to Parker's, that the four factors are
mandatory. In a single sentence in a footnote to his brief on
appeal, Parker states that Brown and Asher should be
overruled. However, Parker does not cite any basis upon which
we may overrule those cases. Parker acknowledges this Court's
decision in Parrett Trucking in a subsequent footnote but
states that that case is distinguishable because it did not
apply the totality-of-the-transaction approach. Parker has
not made a sufficient showing that we should overrule these
cases and depart from an approach this Court has followed for
1061756
27
the last 20 years. In Ex parte First Alabama Bank, 883 So. 2d
1236, 1245 (Ala. 2003), we stated:
"Justice Houston, writing specially in Southern
States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala.
1989), embraced a useful standard for weighing the
need for change against the advantages of settled
principles of law under the doctrine of stare
decisis. He posed the question as follows: whether
the ratio decidendi of earlier precedent would
'"hypothetically be consented to today by the
conscience and the feeling of justice of the
majority of all those whose obedience is required by
[that] rule of law?"' Southern States Ford, Inc.,
541 So. 2d at 1093 (quoting Laun, Stare Decisis, 25
Va. L. Rev. 12, 22 (1938))."
Applying this question to our consideration of whether to
depart from the rule established by Brown and Asher, we cannot
say that the "conscience and feeling of justice of the
overwhelming majority whose obedience is required" would be
shocked by requiring adherence to the view that each of the
four factors must be present before a successor corporation
may be held liable under the continuation-of-the-enterprise
exception. 883 So. 2d at 1245-46. Therefore, on the basis of
stare decisis, we decline to overrule Brown and Asher.
Accordingly,
we
consider
whether
Parker
presented
substantial evidence of each element of the continuation
exception and whether he was entitled to a JML on that issue.
1061756
28
As to the first element of the continuation exception, we must
consider whether there was a basic continuity of PMG's
enterprise, including a retention of key personnel, assets,
general business operations, and PMG's name. Turner, 531 So.
2d at 830. It is undisputed that first Jefferson and then
Memorial Chapel retained the same basic assets and maintained
the same general business operations as PMG. Furthermore,
upon its purchase of the cemetery, Jefferson continued
operating under the name "Prattville Memory Gardens." This
evidence tends to show a continuity of the enterprise.
However, upon Memorial Chapel's purchase of the cemetery
and funeral home from Jefferson, it operated under the name
"Prattville Memorial Chapel and Memory Gardens." Furthermore,
the evidence presented at trial showed that the primary
shareholders, owners, and operators of PMG, Jefferson, and
Memorial Chapel changed with each sale of the cemetery. This
evidence tends to demonstrate a lack of continuity of the
enterprise between Memorial Chapel and its predecessors.
Regarding
the
second
factor
of
the
continuation
exception, Parker must have presented evidence indicating that
PMG and/or Jefferson "'ceased ordinary business operations,
1061756
29
liquidated,
and
dissolved
soon
after
distribution
of
consideration received'" upon the sale of the business.
Turner, 531 So. 2d at 830. This Court recently held that
"[t]here must be evidence of dissolution" and that testimony
that the predecessor company may have been dissolved is
insufficient to satisfy this element. Parrett Trucking, 989
So. 2d at 521-22. Although the evidence clearly shows that
PMG no longer operated the cemetery after it was purchased by
Jefferson and that Jefferson no longer operated the cemetery
after it was purchased by Memorial Chapel, no evidence shows
whether Jefferson and PMG dissolved soon after those sales.
Regarding PMG, Parker cites his attorney's statement to
the trial court that PMG no longer existed at the time of
trial. However, statements of counsel are not evidence. See,
e.g., Carver v. Foster, 928 So.2d 1017, 1025 (Ala. 2005).
Furthermore, even if the statement were evidence, the
statement does not show that PMG dissolved "soon after"
Jefferson's purchase of the cemetery.
Regarding the
dissolution of Jefferson, Parker cites an August 30, 1993,
document captioned "Assignment and Assumption of Pre-Need
Contracts" between Jefferson and Memorial Chapel, which was
1061756
30
signed by Massey-Seal Corporation "f/k/a Jefferson Memorial
Companies, Inc." According to Parker, this "formerly known
as" designation following the signature shows that Jefferson
no longer existed as of the date of the assignment of the pre-
need contracts to Memorial Chapel. However, the "formerly
known as" designation alone does not show that Jefferson had
actually been dissolved; it merely shows that the Massey-Seal
Corporation was once known by that name. Parker offers no
other evidence showing that Jefferson or PMG were dissolved
soon after the distribution of the proceeds of their sales of
the cemetery.
Regarding
the
third
element
of
the
continuation
exception, it is undisputed that Memorial Chapel and Jefferson
"'assumed
those
liabilities and obligations of [their
predecessors] necessary for the continuation of the normal
business operations'" of the cemetery. Turner, 531 So. 2d at
830. Regarding the fourth element of the continuation
exception, whether first Jefferson and then Memorial Chapel
held themselves out as the effective continuation of PMG, 531
So. 2d at 830, Parker cites the fact that Memorial Chapel
continues to include the phrase "Memory Gardens" in its name
1061756
31
and the fact that the Huntingtons placed a photograph of
Gidiere in the lobby of the funeral home with a plaque that
says "Founder of Prattville Memory Gardens." By this
evidence, Parker argues that Memorial Chapel has sought to
profit from PMG's accumulated goodwill and therefore should be
liable for PMG's liabilities. Memorial Chapel contends that
because it operated under a different name, Parker cannot
satisfy the fourth factor of the continuation exception.
Parker had the burden of raising substantial evidence of
each of the four factors of the continuation exception.
Brown, 599 So. 2d at 3. As to the second factor--the
dissolution--there is a lack of substantial evidence in view
of the speculation necessary to treat "f/k/a Jefferson
Memorial Companies, Inc." as evidence of timely dissolution of
Jefferson. This Court has stated that "[t]here must be
evidence of dissolution." Parrett Trucking, 989 So. 2d at
521. Because Parker failed to offer substantial evidence of
timely dissolution of the predecessor corporations, Memorial
Chapel was entitled to a JML on this issue and, consequently,
on Parker's fraud claim. The trial court thus erred in
granting Parker's motion for a JML and denying Memorial
1061756
32
Chapel's motion for a JML on this issue. Accordingly, we
reverse the trial court's judgment against Memorial Chapel on
Parker's fraud claim.
II. Breach-of-Contract Claim Against Memorial Chapel
A. Overview
Memorial Chapel does not dispute that it assumed PMG's
contractual liabilities when it purchased the cemetery from
Jefferson. We therefore address Memorial Chapel's arguments
regarding
Parker's
breach-of-contract
claim
against
it
dealing
with issues other than the assumption of liability.
B.
Failure to Join an Indispensable Party
Memorial Chapel argues that the trial court's judgment
against it on Parker's breach-of-contract claim is due to be
reversed because, it argues, Parker failed to join an
indispensable party. Citing only the 1976 deed that conveyed
interment rights to "Dr. W.E. Parker and/or Prim H. Parker,"
Memorial Chapel argues that Parker's former wife, Prim, has a
property interest in Parker's interment rights and, therefore,
is an indispensable party to the breach-of-contract action.
Parker contends that Memorial Chapel waived this argument by
failing to raise it in the trial court; however, the failure
1061756
33
to join an indispensable party may be raised for the first
time on appeal. See Town of Dauphin Island v. Point Props.,
Inc., 620 So. 2d 602, 604-05 (Ala. 1993).
Although Memorial Chapel may raise this issue for the
first time on appeal, we nonetheless decline to consider it
because Memorial Chapel has failed to comply with the
requirements of Rule 28(a)(10), Ala. R. App. P. This Court
has stated:
"Rule 28(a)(10), Ala. R. App. P., requires that
arguments in an appellant's brief contain 'citations
to the cases, statutes, other authorities, and parts
of the record relied on.' Further, 'it is well
settled
that
a
failure
to
comply
with
the
requirements of Rule 28(a)(10) requiring citation of
authority in support of the arguments presented
provides this Court with a basis for disregarding
those arguments.' State Farm Mut. Auto. Ins. Co. v.
Motley, 909 So. 2d 806, 822 (Ala. 2005)(citing Ex
parte Showers, 812 So. 2d 277, 281 (Ala. 2001)).
This is so, because '"it is not the function of this
Court to do a party's legal research or to make and
address legal arguments for a party based on
undelineated general propositions not supported by
sufficient authority or argument."' Butler v. Town
of Argo, 871 So. 2d 1, 20 (Ala. 2003)(quoting Dykes
v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.
1994))."
Jimmy Day Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1, 9
(Ala. 2007). In Jimmy Day Plumbing, the appellant's argument
consisted of three sentences and one citation to a general
1061756
Memorial Chapel incorrectly states that Taliaferro was
4
decided by this Court; it was decided by the Court of Civil
Appeals.
34
proposition of law with no discussion of how the law related
to the facts presented in that case. Similarly, Memorial
Chapel's argument on this issue consists of a single paragraph
and one citation to Taliaferro v. Goff Group, 947 So. 2d 1073
(Ala. Civ. App. 2006), for the general proposition that a
4
trial court's judgment may be reversed for failure to join an
indispensable party. Memorial Chapel does not discuss the
rules regarding joinder, particularly Rule 19, Ala. R. Civ. P.
Nor does it discuss the two-step process courts follow in
determining whether a party is necessary and indispensable.
E.g., Liberty Nat'l Life Ins. Co. v. University of Alabama
Health Servs. Found., P.C., 881 So. 2d 1013, 1021-22 (Ala.
2003). Nor does it offer any analysis regarding how the facts
of this case apply to the joinder rules. Accordingly, as to
its joinder argument, Memorial Chapel has not complied with
the requirements of Rule 28(a)(10), Ala. R. App. P., and we
will not consider the argument.
C.
Parol Evidence
1061756
Rule 50(a), Ala. R. Civ. P., as amended effective October
5
1, 1995, renamed the "motion for a directed verdict" as a
"motion for judgment as a matter of law."
35
Memorial Chapel argues that the trial court erred in
admitting parol evidence regarding the contract between Parker
and PMG. Memorial Chapel bases its argument on the Statute of
Frauds, on Alabama law regarding the interpretation of deeds,
and on the parol-evidence rule. Parker argues that the trial
court did not err in admitting parol evidence because Memorial
Chapel did not object when the evidence was offered at trial.
Therefore, Parker argues, Memorial Chapel waived any argument
that the evidence was inadmissible.
In Alfa Mutual Insurance Co. v. Northington, 561 So. 2d
1041 (Ala. 1990), a policyholder sued his insurance company
alleging breach of contract and fraud. The policyholder,
Northington, contended that his agreement with the insurance
company, Alfa, included coverage for the loss of personal
property due to theft; Alfa denied coverage based on a written
policy, and Northington sued. 561 So. 2d at 1042. During
trial, Alfa moved for a directed verdict, arguing that any
5
oral
negotiations
between
Northington
and
Alfa's
representative were merged into a written policy. 561 So. 2d
1061756
36
at 1043. Therefore, according to Alfa, no evidence supported
Northington's contention that his policy covered loss of
personal property due to theft. The trial court denied the
motion, and Alfa appealed.
On appeal, this Court noted that during the trial of the
case,
"Northington
sought
to
introduce
the
testimony
concerning the oral negotiations for the purpose of proving
the terms of his contract with Alfa and ... the testimony was
admitted into evidence without any objection." 561 So. 2d at
1043-44. This Court recognized that once contracts have been
reduced to a writing and the parties have acknowledged that
the writing represents the complete agreement between them,
parol evidence of the negotiations will not be admitted to
alter or contradict the writing. However, in Alabama, parties
"may try their case on evidence that would otherwise be
inadmissible upon proper objection and ... where evidence
violative of the parol evidence rule is admitted without
objection, it may be considered and allowed such force and
effect as its weight entitles it in construing the agreement
of the parties." 561 So. 2d at 1044. Because Alfa did not
object to the admission of the parol evidence Northington
1061756
37
offered to prove the terms of his policy, this Court held that
the trial court did not err in denying Alfa's motion for a
directed verdict. Accord, ALFA Life Ins. Corp v. Jackson, 906
So. 2d 143, 156 (Ala. 2005).
Similarly, the trial transcript in this case shows that
Parker
submitted
parol
evidence
regarding
his
oral
negotiations with Gidiere for the purpose of proving the terms
of the contract. Specifically, Parker testified regarding
Gidiere's oral representations in order to show that he had
contracted to receive an estate plot, which included a
walkway, plants, and special markers. Memorial Chapel did not
object to the admission of this evidence. In fact, Memorial
Chapel's attorney solicited testimony from Parker regarding
Gidiere's oral representations. Because Memorial Chapel
failed to object during trial to the admission of parol
evidence regarding the terms of Parker's agreement with PMG,
it now has no basis on which to argue that the evidence should
have been excluded. Like Alfa in Northington, Memorial Chapel
has waived its arguments regarding parol evidence.
D.
Statements During Closing Argument
1061756
38
Memorial Chapel argues on appeal that it is entitled to
a new trial because Parker's attorney made what it claims were
prejudicial statements during closing arguments. However,
neither party requested that the closing arguments be
transcribed, either before or during the trial. After the
jury returned its verdict, Memorial Chapel filed a motion
requesting that the closing arguments be transcribed from the
court reporter's backup audio recording of the proceedings.
The trial court denied the motion, stating: "The rules do not
require an official court reporter to [transcribe] arguments
of counsel. If closing was taken by this Court's former
official court reporter ... and he is compensated for the
same, they may be transcribed. Otherwise, this Court will not
order that they be transcribed." Memorial Chapel then
arranged for the closing arguments to be transcribed and
subsequently moved for the transcription to be made part of
the record. Parker opposed that motion.
In its ruling on Memorial Chapel's postjudgment motions,
the trial court stated the following regarding Memorial
Chapel's motion to supplement the record with a transcription
of the closing arguments:
1061756
39
"Neither [Parker] nor [Memorial Chapel] requested
that the official court reporter transcribe closing
arguments
during
the
trial
of
this
case.
Thereafter,
after
being
requested
by
defense
counsel, this Court's former official court reporter
attempted to transcribe the closing arguments by
reviewing his backup tape. That transcription
included
a
great
number
of
'unintelligible'
entries."
In fact, in the 42-page transcript of the closing arguments,
the court reporter made 32 notes that the argument was
unintelligible. Instead of certifying that the transcript of
the closing arguments was a full, true, and correct transcript
of the proceedings, the court reporter's certificate states
only that he has "transcribed from tape recordings the
aforesaid transcript and [that] the foregoing pages contain as
correct a transcript of the proceedings to the best of [his]
understanding and to the best of [his] ability." The trial
court concluded:
"The official court reporter would have written and
transcribed closing arguments if he had been
requested to do so. However, counsel did not
request the same and the Court will not include as
a part of this record something that cannot be
certified
as
accurate
by
the
official
court
reporter. Therefore, [Memorial Chapel's] motion is
DENIED."
Accordingly, the trial court did not consider whether the
statements were prejudicial, and the transcript has not been
1061756
40
made a part of the court reporter's record on appeal. Based
on Memorial Chapel's failure to request a transcript, on the
number of "unintelligible" portions of the transcript, and on
the
court
reporter's
inability
to
fully
certify
the
transcript, we cannot say that the trial court exceeded its
discretion in denying Memorial Chapel's motion to supplement
the record. See, e.g., Ex parte Edwards, 450 So. 2d 464, 465-
66 (Ala. 1984)(reviewing trial court's decision whether to
supplement appellate record under Rule 10(f), Ala. R. App. P.,
under abuse-of-discretion standard).
Parker contends that "[b]ecause there is no record of the
allegedly improper statement, this issue presents nothing for
this Court to review." Johnston v. Frost, 547 So. 2d 528, 529
(Ala. 1989). We agree. Memorial Chapel contends that it need
only show "'with reasonable certainty what was said in the
court below.'" Mathews v. Tuscaloosa County, 421 So. 2d 98,
100 (Ala. 1982) (quoting Flowers v. State, 269 Ala. 395, 397,
113 So. 2d 344, 345 (1959)). Memorial Chapel urges this Court
to consider the transcript attached to its motion to
supplement the record. According to Memorial Chapel, because
those portions of the transcript it now challenges are not the
1061756
41
portions
that
contain
notes
that
the
argument
is
unintelligible, it has shown with reasonable certainty what
was said in the court below, and its argument should be
considered.
In Mathews, upon which Memorial Chapel relies, the
plaintiff made a timely objection during the defendant's
opening statement; however, the objection was not recorded
because of an inadvertent error by the court reporter. 421
So. 2d at 99. The plaintiff moved, pursuant to Rule 10(f),
Ala. R. App. P., to supplement the record; the plaintiff
supported its motion with affidavits from the court reporter
and counsel for both parties. Id. The trial court denied
the motion but included the supporting affidavits in the
record on appeal. Additionally, the record on appeal included
a transcript of the
parties' arguments regarding the
objection. That transcript contained references to the
objectionable statement sufficient to show its substance and
the basis for the trial court's ruling. 421 So. 2d at 100.
The record of the trial proceedings, therefore, contained
sufficient undisputed information for this Court to discern
1061756
42
that the statement violated consistent precedent and that the
trial court's ruling on the objection was erroneous. Id.
Here, the court reporter's record on appeal does not
contain any information regarding or reference to the closing
arguments. Therefore, unlike Mathews, there is nothing in the
record from which this Court can determine the substance of
the statements Memorial Chapel challenges on appeal. We
agree with Parker that, "[b]ecause there is no record of the
allegedly improper statement, this issue presents nothing for
this Court to review." Johnston, 547 So. 2d at 529.
Additionally, unlike the plaintiff in Mathews, Memorial
Chapel has not complied with the requirements of Rule 10, Ala.
R. App. P., and the trial court has not approved any
supplement to the record on appeal that shows the substance of
the closing arguments. This Court has stated: "Rule 10(d),
[Ala. R. App. P.], is the appropriate rule with which [a
party] must comply in order to supplement the record when no
report of the proceedings was made. This rule carefully fixes
the procedure and time limits that must be followed in order
to effect such supplementation." Todd v. United Steelworkers
of America, AFL-CIO-CLC, 441 So. 2d 889, 891 (Ala. 1983).
1061756
Rule 10(d), Ala. R. App. P., provides:
6
"If no report of the evidence or proceedings at a
hearing or trial was made, or if a transcript is
unavailable, the appellant may prepare a statement
of the evidence or proceedings from the best
available
means,
including
the
appellant's
recollection. If the appellant prepares such a
statement, the appellant shall serve it on the
appellee within 28 days (4 weeks) after filing the
notice of appeal; the appellee, within 14 days (2
weeks) after service, may serve on the appellant
objections or proposed amendments to the statement.
... If the appellee serves on the appellant any
objections or proposed amendments, then, within 7
days (1 week) after service, the appellant shall
file the statement and any objections or proposed
amendments with the trial court for settlement and
approval. Within 21 days (3 weeks) after the filing,
the trial court shall rule, settling any questions
regarding the objections and proposed amendments,
and issuing an approved statement of the evidence or
proceedings. The statement, either as approved by
the court or as issued by the court after its
ruling, shall be filed with the clerk of the trial
court, who shall include it in the record on
appeal."
43
Specifically, Rule 10(d) requires that the trial court approve
a statement of the proceedings that were omitted from the
record. The record on appeal does not show that Memorial
6
Chapel attempted to comply with Rule 10(d). However, even if
we were to construe Memorial Chapel's proffer of the
incomplete transcript as compliant with the rule, it is
apparent that Parker objected to the transcript and that the
1061756
44
trial court did not approve it. For the reasons stated above,
we cannot conclude that the trial court exceeded its
discretion in declining to approve the transcript of the
closing arguments prepared after the conclusion of the trial
proceedings.
Furthermore, this Court has stated:
"'This Court has generally held that
improper arguments by an attorney are not
sufficient grounds for a new trial without
a timely objection and a ruling by the
trial court or a refusal by the trial court
to make a ruling. Lawrence v. Alabama Power
Co., 385 So. 2d 986, 987 (Ala. 1980). The
exception to this rule is "where the
comment is so prejudicial that its effect
is ineradicable." Banner Welders, Inc. v.
Knighton, 425 So. 2d 441, 450 (Ala. 1982).'
"Isbell v. Smith, 558 So. 2d 877, 881 (Ala. 1989),
cert. denied, 498 U.S. 821, 111 S. Ct. 68, 112 L.
Ed.2d 42 (1990)."
Alfa Mut. Ins. Co. v. Moreland, 589 So. 2d 169, 171 (Ala.
1991). Even if we were to consider the transcript, it is
apparent that Memorial Chapel did not raise a timely objection
to the statements it now challenges on appeal, nor did it
obtain a ruling on any objection from the trial court that
this Court can review. Additionally, without a complete
transcript, Memorial Chapel has not shown, and we cannot
1061756
45
determine, whether the statements at issue were so prejudicial
as to have an ineradicable effect. Therefore, we will not
consider
Memorial
Chapel's
argument
regarding
Parker's
closing
argument.
E.
Damages for Mental Anguish
1. Remittitur
As to Parker's breach-of-contract claim, the jury awarded
Parker $30,000 in compensatory damages. Memorial Chapel
argues that the trial court impermissibly instructed the jury
that it could award damages for mental anguish and that Parker
proved only $4,128 in actual damages. Accordingly, Memorial
Chapel argues that the trial court should have ordered a
remittitur as to the compensatory-damages award for breach of
contact. To support its argument, Memorial Chapel cites only
National Security Fire & Casualty Co. v. Vintson, 414 So. 2d
49, 52 (Ala. 1982), for the proposition that the "general rule
in this state is that mental anguish is not a recoverable
element of damages arising from breach of contract."
The evidence submitted to the jury showed that, at the
time of trial, individual burial spaces in the cemetery were
selling for $1,032. The evidence further showed that in order
1061756
46
for Parker to have the walkway, plants, special markers, and
other amenities he says he had been promised, he would have to
have the equivalent of 20 burial spaces. Parker already owned
16 burial spaces; however, the Huntingtons testified that
Parker would not be given the extra features and that there
was physically no space in the Garden of Devotion for Parker
to have the 4 additional spaces necessary to do so.
Purchasing 20 burial spaces in another part of the cemetery at
$1,032 per space would cost Parker $20,640. Memorial Chapel
contends that, because interment spaces cost $1,032, Parker
suffered actual damages of only $4,128--i.e., the cost of four
additional spaces. Without showing how he calculated the
amount, Parker contends that he received 388 fewer square feet
from Memorial Chapel than Gidiere had promised him and that
the decreased value as a result of that loss of space is
$9,437.
The record shows that the trial court instructed the jury
as follows:
"[T]here's
two
types
of
compensatory
damages
claimed, if you find that the plaintiff is entitled
to recover. One are the economic, pure add them up,
count them, money damages, okay? And with regard to
that, the law says that the purpose of such damages
is to put the plaintiff in as good a position as he
1061756
47
would have been with regard to a contract, if it
hadn't been broken. ... Now, it says where a
contractual duty or obligation is so related to
matters of mental concern or apprehensiveness, or
with the feelings of the party to whom a duty is
owed, that breach of duty will necessitate or
reasonably result in mental anguish or suffering,
and if such matters that are reasonably within the
contemplation of the parties when a contract is
made, then in that event, then the party is entitled
to recover and he would be entitled to recover such
sum as would reasonably compensate him for mental
anguish and physical suffering."
This Court has stated:
"An
award
of
damages
for
mental
anguish
generally is not allowed in breach-of-contract
actions in Alabama. Ruiz de Molina v. Merritt &
Furman Ins. Agency, 207 F.3d 1351 (11th Cir. 2000),
citing Vincent v. Blue Cross-Blue Shield, Inc., 373
So. 2d 1054, 1056 (Ala. 1979).
"'The ground on which the right to recover
such damages [for mental anguish] is
denied, is that they are too remote, were
not
within
the
contemplation
of
the
parties, and that the breach of the
contract is not such as will naturally
cause mental anguish. "Yet where the
contractual duty or obligation is so
coupled with matters of mental concern or
solicitude, or with the feelings of the
party to whom the duty is owed, that a
breach of that duty will necessarily or
reasonably result in mental anguish or
suffering, it is just that damages therefor
be taken into consideration and awarded."'
"F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala.
655, 656, 141 So. 630, 631 (1932) (citations
omitted)."
1061756
48
Bowers v. Wal-Mart Stores, Inc., 827 So. 2d 63, 68-69 (Ala.
2001). It is pursuant to this exception that the trial court
instructed the jury. To determine whether the trial court
erred in instructing the jury as to the availability of
mental-anguish
damages
for
breach
of
a
contract
and
subsequently in failing to order a remittitur of the damages
the jury awarded, we must determine whether this exception
applies to Parker's breach-of-contract claim.
Memorial Chapel cites authority regarding the general
prohibition of mental-anguish damages for breach of contract;
however, it does not point us to any authority regarding the
application of the mental-concern or solicitude exception, the
legal issue upon which its argument turns. Rule 28(a)(10),
Ala. R. App. P., provides that an appellant's argument must
set out "the contentions of the appellant/petitioner with
respect to the issues presented, and the reasons therefor,
with citations to the cases, statutes, other authorities, and
parts of the record relied on." We have stated that "it is
not the function of this Court to do a party's legal research
or to make and address legal arguments for a party based on
undelineated general propositions not supported by sufficient
1061756
We note that we do not decide whether this contract falls
7
within the mental-concern or solicitude exception identified
in Bowers v. Wal-Mart Stores, Inc., 827 So. 2d at 68-69.
There is simply insufficient argument and authority allowing
us to reverse the trial court's judgment or, indeed, to make
any determination as to this issue.
49
authority or argument." Dykes v. Lane Trucking, Inc., 652 So.
2d 248, 251 (Ala. 1994). Rather, it is the appellant's duty
to present "relevant legal authorities that support [its]
position." White Sands Group, L.L.C. v. PRS II, LLC, [Ms.
1070050, April 18, 2008] ___ So. 2d ___, ___ (Ala. 2008).
Although Memorial Chapel has cited one case stating the
general prohibition of mental-anguish damages, it has not
cited any authority regarding the mental-concern or solicitude
exception. Accordingly, as to mental-anguish damages,
Memorial Chapel has not complied with the requirements of Rule
28(a)(10), and we will not address the issue.7
2. Stipulation
Based on our refusal to order a remittitur as to the
damages awarded for mental anguish, we must address Memorial
Chapel's argument that the trial court erred in failing to
instruct the jury that Parker stipulated that he never sought
treatment for mental anguish. During trial, Memorial Chapel
attempted to elicit testimony regarding Parker's history of
1061756
50
mental anguish and his failure to seek treatment for the
mental anguish he alleges he suffered as a result of Memorial
Chapel's actions. Parker objected to the testimony, and the
parties argued the objection outside the hearing of the jury.
During their argument, Parker stipulated that he had not
sought psychological treatment for mental anguish resulting
from Memorial Chapel's actions. The trial court otherwise
sustained the objection.
Thereafter,
Memorial
Chapel
did
not
attempt
to
communicate Parker's stipulation to the jury. Furthermore, at
no time before the claims were submitted to the jury did
Memorial Chapel request the trial court to instruct the jury
as to the stipulation, although it now argues that the trial
court erred to reversal in failing to do so. Parker contends
that, if the trial court erred in this respect, we should not
reverse the trial court's judgment because Memorial Chapel
invited the error. See Lawrence v. Alabama Power Co., 385 So.
2d 986, 987 (Ala. 1980). Memorial Chapel responds, stating
simply that it "obviously ... intended for the information to
be presented to the jury ...."
This Court has stated:
1061756
51
"It is ... well settled 'that a party may not
induce an error by the trial court and then attempt
to win a reversal based on that error. "A party may
not predicate an argument for reversal on 'invited
error,' that is, 'error into which he has led or
lulled the trial court.'"' Mobile Infirmary Med.
Ctr. v. Hodgen, 884 So. 2d 801, 808 (Ala. 2003)
(quoting Atkins v. Lee, 603 So. 2d 937, 945 (Ala.
1992), quoting in turn Dixie Highway Express, Inc.
v. Southern Ry., 286 Ala. 646, 651, 244 So. 2d 591,
595 (1971))."
White Sands Group, L.L.C. v. PRS II, LLC, ___ So. 2d at ___.
If the trial court in fact erred in failing to instruct the
jury on this issue, Memorial Chapel invited that error by
failing to make any attempt to present Parker's stipulation to
the jury. It further invited error by failing to request the
trial court to instruct the jury on the stipulation. If
Memorial Chapel had desired such an instruction, it should
have requested one; we will not reverse the judgment of the
trial court for failing to do what Memorial Chapel did not
request.
Conclusion
We reverse the trial court's judgment against Memorial
Chapel as to Parker's fraud claim, and we affirm the trial
court's judgment against Memorial Chapel on Parker's breach-
1061756
52
of-contract claim; we remand this case for the entry of a
judgment consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
See, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Murdock, J., concurs in part and concurs in the result.
Cobb, C.J., recuses herself.
1070816
53
MURDOCK, Justice (concurring in part and concurring in the
result).
I concur in the main opinion except as to Parts I and
II.D., as to which I concur in the result. I write separately
to address briefly the continuity-of-the-enterprise issue
discussed in Part I.
The main opinion declines to revisit Brown v. Economy
Baler Co., 559 So. 2d 1 (Ala. 1992), and Asher v. KCS
International, Inc., 659 So. 2d 598 (Ala. 1995)(per Hornsby,
C.J., with only three Justices concurring and one Justice
concurring in the result), insofar as they stand for the
proposition that all four of the elements of the continuity-
of-the-enterprise test must be met in order to hold that a
successor
corporation
is
a
mere
continuation
of
its
predecessor. The main opinion also declines to address
Parker's related and more specific argument that Brown and
Asher should be overruled to the extent, among other things,
that they require the fourth of the four continuity-of-the-
enterprise elements to be satisfied, even if all the other
three elements are met. Because Parker does not supply us
with a sufficient rationale for revisiting these cases, see,
1070816
54
e.g., Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251 (Ala.
1994), I concur in the result as to the main opinion's refusal
to do so.
As to the "subissue" of dissolution, upon which the main
opinion ultimately relies to resolve the continuity-of-the-
enterprise issue in this case, please see my special writing
in Parrett Trucking, Inc. v. Telecom Solutions, Inc., 989 So.
2d 513, 523 (Ala. 2008) (Murdock, J., concurring in part and
concurring in the result in part). | December 5, 2008 |
827091b7-cba5-44b0-8e0e-eaddf2f492a9 | State Farm Fire and Casualty Company, Sally Hines and B.G. Hines v. Wonderful Counselor Apostolic Faith Church | N/A | 1050872 | Alabama | Alabama Supreme Court | REL: 12/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1050872
____________________
State Farm Fire and Casualty Company, Sally Hines, and B.G.
Hines
v.
Wonderful Counselor Apostolic Faith Church
Appeal from Tuscaloosa Circuit Court
(CV-02-1068)
On Application for Rehearing
PER CURIAM.
APPLICATION OVERRULED. NO OPINION.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Bolin, and
1050872
2
Parker, JJ., concur.
Smith, J., concurs specially.
Murdock, J., dissents.
1050872
WCAFC is also referred to in the record as "Wonderful
1
Council Pentecostal Assembly, Inc.," and "Wonderful Counselor
Church."
3
SMITH, Justice (concurring specially).
State Farm Fire and Casualty Company ("State Farm"),
Sally Hines, and B.G. Hines (hereinafter referred to
collectively as "the defendants") appealed from a judgment
entered on a jury verdict in favor of the plaintiff below,
Wonderful Counselor Apostolic Faith Church ("WCAFC"), in this
1
action seeking damages for suppression and breach of contract.
On May 23, 2008, this Court affirmed the judgment of the trial
court without an opinion. Subsequently, the defendants filed
an application for rehearing. I concur to overrule their
application, and I write to express why I do so.
In 1989, WCAFC began constructing a new church building.
Bennie Sue Morgan, the pastor of WCAFC, contacted Sally Hines,
a State Farm agent, to obtain a quote for insurance coverage
for the new church building. Sally's husband, B.G. Hines, was
employed by Sally in her office and provided Morgan with a
quote for the insurance. Both Sally and B.G. testified that
Morgan requested an insurance limit of $100,000. Morgan
completed an application, which requested a policy on the
1050872
4
church building with "replacement cost coverage" and a policy
limit of $100,000.
The insurance policy was issued February 18, 1990. The
policy limited the amount payable for a loss to the church
building at $100,000. The declarations page of the policy
specified this limit and referred to it as the "limits of
insurance." Every year at renewal the "limits of insurance"
amount was increased, purportedly to account for inflation.
The policy at issue in this case, which was renewed on January
12, 2000, set the "limits of insurance" amount for the church
building at $127,500.
In addition to the increase in the "limits of insurance"
amount at the policy renewal every year, the policy also
contained a provision to increase the "limits of insurance"
amount throughout the year the policy is in place. This
provision is titled "Inflation Coverage."
On August 2, 2000, the church building was destroyed by
fire. WCAFC obtained two estimates to rebuild the church
building--both estimates exceeded $200,000. Using the
inflation-coverage
provision,
State
Farm
calculated
that
under
the "limits of insurance" at the date of the loss the payment
1050872
5
under the policy for the church building was $129,795.
WCAFC and Morgan subsequently sued State Farm, Sally
Hines, and B.G. Hines seeking damages for, among other things,
breach of contract, suppression, negligent failure to procure
insurance, and various theories of fraud.
The jury returned a verdict finding that Sally and B.G.
were agents of State Farm and found in favor of all three
defendants on the counts of fraud and negligent failure to
procure insurance. As to the breach-of-contract count, the
jury found in favor of WCAFC and against State Farm. As to
the suppression count, the jury found in favor of WCAFC and
against all defendants. The trial court ultimately entered a
judgment in favor of WCAFC in the amount of $90,000 in
compensatory damages against all defendants; $300,000 in
punitive damages against State Farm; $25,000 in punitive
damages against Sally; and $25,000 in punitive damages against
B.G. The defendants appealed, and this Court affirmed the
trial court's judgment without an opinion. The defendants now
apply for a rehearing.
In their application for rehearing, the defendants raise
four issues. First, the defendants claim that the punitive-
1050872
6
damages award against them was excessive and that it was
wrongly apportioned between the parties. In their brief
supporting the application for rehearing, the defendants
state:
"In the initial Brief of [the defendants], logical
exposition demanded that other issues be discussed
before this issue. Therefore, the issue was not
addressed until after page 70 and perhaps this Court
was worn out before it reached this issue and did
not grasp the significance of the trial court's
error."
However, no authority was cited in the discussion in the
original brief on this issue; therefore, the judgment of the
trial court was due to be affirmed on this ground. See Rule
28(a)(10), Ala. R. App. P. (requiring that an appellate brief
provide "[a]n argument containing the contentions of the
appellant/petitioner with respect to the issues presented, and
the reasons therefor, with citations to the cases, statutes,
other authorities, and parts of the record relied on"
(emphasis added)); City of Birmingham v. Business Realty Inv.
Co., 722 So. 2d 747, 752 (Ala. 1998) ("When an appellant fails
to cite any authority for an argument on a particular issue,
this Court may affirm the judgment as to that issue, for it is
neither this Court's duty nor its function to perform an
1050872
Additionally, the evidence at trial indicated that money
2
"was tight" at WCAFC. The jury could have concluded that the
defendants knew that Morgan would not have purchased a more
expensive policy, which would have had adequate coverage;
thus, Morgan was induced to purchase a less expensive policy
because she was not told that the less expensive policy did
not provide the level of coverage she requested.
7
appellant's legal research.").
In their second issue, the defendants claim that WCAFC
failed to present any evidence to satisfy the requirements of
Ala. Code 1975, § 6-11-27, for holding a principal vicariously
liable for punitive damages. However, I believe that the
record demonstrated that WCAFC submitted substantial evidence
on this issue.2
The defendants also argue on rehearing that the trial
court erred in ruling that State Farm had a duty to disclose
to WCAFC its "internal operating procedure" by which it
estimated the replacement cost of the church building. In
support of this argument, State Farm, in its original brief,
cited, without explanation, State Farm Fire & Casualty Co. v.
Owen, 729 So. 2d 834 (Ala. 1998). Owen sets forth an
analysis, which can include numerous factual considerations,
to determine, in an action alleging suppression, whether an
1050872
Under Ala. Code 1975, § 6-5-102, an obligation to
3
communicate may arise from the "confidential relations" of the
parties or from the particular circumstances of the case. In
determining the "particular circumstances of the case," the
Court in Owen looked to "(1) the relationship of the parties;
(2) the relative knowledge of the parties; (3) the value of
the particular fact; (4) the plaintiff's opportunity to
ascertain the fact; (5) the customs of the trade; and (6)
other relevant circumstances." 729 So. 2d at 842-43.
8
insurer had a duty to speak. Under the facts of that case,
3
this Court held that the insurer had no duty to disclose
certain underwriting procedures. Owen, however, does not
establish a per se rule barring the admission of internal
underwriting procedures.
The defendants in their original brief in this case did
not address the factors found in Owen; instead, they cited
Owen for the proposition that "State Farm had no duty to
disclose
its internal operating procedure
to
[WCAFC]."
Again,
Owen did not establish a per se rule; without any explanation
as to why Owen forbade the admission of the procedures into
evidence or why there was no duty to disclose the estimated
replacement amount, the defendants did not meet their burden
in establishing that the trial court erred to reversal.
Finally, the defendants state: "This Honorable Court left
undisturbed and unaddressed the trial court's ruling, as a
1050872
9
matter of law, that the Inflation Coverage contained in State
Farm's church policy was ambiguous." State Farm contends that
its policy was not ambiguous and that the trial court erred in
holding otherwise. I agree. However, as explained below,
this error does not alter the result in this case or require
a reversal.
At trial, the trial court determined that the inflation-
coverage provision of the policy was ambiguous. This ruling
formed the basis of the breach-of-contract claim that was
submitted to the jury.
"Whether a provision of an insurance policy is
ambiguous is a question of law. Turvin v. Alfa Mut.
Gen. Ins. Co., 774 So. 2d 597, 599 (Ala. Civ. App.
2000). To the extent the language of an insurance
policy provision is ambiguous, all ambiguities must
be resolved against the insurance company. Twin City
Fire Ins. Co. [v. Alfa Mut. Ins. Co.], 817 So. 2d
[687,] 692 [(Ala. 2001)]. However, the parties
cannot create ambiguities by setting forth different
interpretations or '[by inserting] ... strained or
twisted reasoning.' Id. Moreover, the mere fact
that a word or a phrase used in a provision in an
insurance policy is not defined in the policy does
not mean that the word or phrase is inherently
ambiguous. Id. If a word or phrase is not defined
in the policy, then the court should construe the
word or phrase according to the meaning a person of
ordinary intelligence would reasonably give it. Id."
Safeway Ins. Co. of Alabama v. Herrera, 912 So. 2d 1140, 1143
(Ala. 2005).
1050872
10
"A term in a contract is ambiguous only if, when given
the context, the term can reasonably be open to different
interpretations by people of ordinary intelligence." Lambert
v. Coregis Ins. Co., 950 So. 2d 1156, 1162 (Ala. 2006).
Additionally, in determining whether an insurance policy is
ambiguous, "a court cannot consider the language in the policy
in isolation, but must consider the policy as a whole." State
Farm Fire & Cas. Co. v. Slade, 747 So. 2d 293, 309 (Ala.
1999); see also Allstate Ins. Co. v. Hardnett, 763 So. 2d 963,
965 (Ala. 2000) ("An insurance policy must be read as a whole.
The provisions of the policy cannot be read in isolation, but,
instead, each provision must be read in context with all other
provisions.").
Because the issue whether a contract is ambiguous is a
question of law, a de novo determination as to whether the
inflation-coverage provision is ambiguous is required. See
State Farm Fire & Cas. Co. v. Slade, 747 So. 2d at 308.
The inflation-coverage provision states, in pertinent
part:
"The limits of insurance specified in the
Declarations of this policy for Coverage A-Buildings
and Coverage B-Business Personal Property will
automatically increase by the applicable Inflation
1050872
11
Coverage Index shown in the Declarations.
"To determine the limits of insurance on a
particular date, the Index level available on that
date will be divided by the Index level as of the
effective date of this inflation coverage provision
and the resulting factor multiplied by the limits of
insurance for Coverage A and Coverage B separately.
In no event will the limits of insurance be reduced
to less than those shown in the Declarations or most
recent renewal notice, whichever is greater."
As noted above, the declarations page for the policy issued
January 12, 2000, specifies the "limits of insurance" for
"Buildings" at $127,500. The inflation-coverage index is
specified on that page as "141.2." According to State Farm,
the "index level available" on the date of the loss--August 2,
2000--was "143.8."
After WCAFC rested its case, the trial court ruled that
the first paragraph of the provision was ambiguous:
"The Court also feels obligated to find that
there is an ambiguity in the policy. The ambiguity
the Court finds is in paragraph one, inflation
coverage. ...[I]t is clear to the Court ... that the
limits of insurance will automatically increase by
the applicable inflation coverage index shown in the
declaration. The policy being a replacement cost
coverage policy on its face and in its application
tends to beg: Well, what is the purpose of that? In
the
Court's
mind,
it
creates
confusion
and,
therefore, I interpreted it against the drafter and
against State Farm in this case, and the Court would
find it creates in the mind of the layperson or
could very likely create, as it did with the Court,
1050872
12
that you have to increase your coverage by that
multiple factor on the front page. It could have
just as easily been handled by looking to the second
paragraph and, to me, would have been sufficient in
and of itself to handle any adjustment at the point
in time of loss."
As stated above, in interpreting the inflation-coverage
provision, this Court must not read any part of the language
of the inflation-coverage provision, including the first
paragraph, "in isolation." Slade, 747 So. 2d at 309.
Instead, this Court must read the policy "as a whole" and the
language of the inflation-coverage provision must be "read in
context with all other provisions." Hardnett, 763 So. 2d at
965. See also Royal Ins. Co. of America v. Thomas, 879 So. 2d
1144, 1153-54 (Ala. 2003) ("'Insurance contracts, like other
contracts, are construed to give effect to the intention of
the parties and, to determine this intent, the court must
examine more than an isolated sentence or term; it must read
each phrase in the context of all other provisions. State
Farm Mut. Auto. Ins. Co. v. Lewis, 514 So. 2d 863 (Ala.
1987).'" (quoting Hall v. American Indem. Group, 648 So. 2d
556, 559 (Ala. 1994))).
The first paragraph of the inflation-coverage provision
states generally that the policy "limits of insurance"
1050872
I have rounded the "resulting factor" in this case to the
4
nearest one thousandth: 1.018.
State Farm actually paid WCAFC $144,233, which reflects
5
payment under the policy for coverage for both the church
building and the personal property lost in the fire. The
13
automatically increase "by the applicable Inflation Coverage
Index." The second paragraph explains how this calculation is
made: "To determine the limits of insurance on a particular
date ['the adjusted limit'], the Index level available on that
date ['A'] will be divided by the Index level as of the
effective date of this inflation coverage provision ['B'] and
the resulting factor multiplied by the limits of insurance
['C']...." (Emphasis added.) This can be expressed in the
following equation: A÷B×C= "the adjusted limit."
The index level available on the date of the loss, 143.8,
is divided by the "Index level as of the effective date of
this inflation coverage provision," which was 141.2. The
resulting
quotient
("the
resulting
factor")
is
then
4
"multiplied by the limits of insurance," $127,500, resulting
in the adjusted limit: 143.8 ÷ 141.2 × $127,500 = $129,795.
This result is the same "adjusted limit" State Farm calculated
under the inflation-coverage provision and paid WCAFC for the
loss of the church building.5
1050872
amount of coverage for the church building under the policy is
the issue on appeal.
14
WCAFC's
interpretation
of
the
inflation-coverage
provision, however, is quite different. WCAFC stated in its
brief:
"However, the more reasonable interpretation of the
inflation coverage provision is that the limits of
insurance as specified on the current declarations
page, or $127,500 for 2000, are automatically
increased by the Inflation Coverage Index of 141.2.
Because it is an inflation index, it is 'obvious,'
as
conceded
by
State
Farm's
corporate
representative, John Hill, that 141.2 represents a
percentage and must be divided by 100 before the
limits are increased through multiplication. (R.
997). It is more than reasonable, therefore, that
paragraph one automatically increases the 'limits of
insurance' to $180,030. Paragraph two then provides
a minor adjustment to the 'limits of insurance' as
previously figured in paragraph one by dividing the
index level on the date of loss, 143.8, by the
inflation coverage index on the declarations page,
141.2, and then multiplying the result by $180,030."
WCAFC's brief at 26 n.3.
This is not a reasonable interpretation of the inflation-
coverage provision. First, WCAFC reads the first paragraph in
isolation, ignoring the second paragraph, the opening phrase
of which explains how "[t]o determine the limits of insurance
on a particular date." Attempting to determine the adjusted
limit using the plain text of the first paragraph alone
1050872
15
requires one to "increase" the "limits of insurance" by the
"applicable Inflation Coverage Index." Thus the $127,500
"limits of insurance" would be "increased" by 141.2, which if
multiplied results in the incredible adjusted limit of
$18,003,000--a
facially
unreasonable
adjustment
for
only
eight
months of inflation.
WCAFC suggests, however, that the "applicable Inflation
Coverage Index" is actually a percentage, and that the
$127,500
"limits
of
insurance"
would
be
"increased"
by
141.2%.
To perform this calculation, WCAFC reads the text of the
inflation-coverage provision to require that 141.2 be divided
by 100, then multiplies the resulting quotient by the policy
limit, resulting in an adjusted limit of $180,030. WCAFC's
interpretation requires that the inflation-coverage index be
read as a percentage, that this figure be divided by 100, and
that the resulting quotient then be multiplied by the policy
limit--none of which is actually specified in that paragraph.
The second paragraph, WCAFC suggests, makes a "minor
adjustment" to the "limits of insurance" calculated in the
first paragraph. To do this, the index level on the date of
loss, 143.8, is divided by the inflation-coverage index,
1050872
WCAFC does not suggest, as it does for the first
6
paragraph, that the second paragraph requires the "inflation-
coverage index" to be multiplied by 100 or to be considered a
percentage.
16
141.2, and then multiplied by the previously determined
adjusted limit to come to the final total limit: 143.8 ÷ 141.2
× $180,030 = $183,345.
6
WCAFC's interpretation requires that a term in the first
paragraph--"limits of insurance"--have a different meaning in
the second paragraph. Specifically, in the first paragraph,
the term "limits of insurance" refers to the policy limit of
$127,500, which is "specified in the Declarations" of the
policy.
The
inflation-coverage
provision
modifies
this
amount
to reach the adjusted limit, which is the "limits of insurance
on a particular date." Under the defendants' interpretation
of the inflation-coverage provision, the term "limits of
insurance" always refers to the $127,500 amount. WCAFC's
interpretation,
however,
requires
"limits
of
insurance"
in
the
first paragraph to refer to the $127,500 limit, but in the
second paragraph to refer to the new "limits of insurance" as
modified by the first paragraph.
WCAFC's reading of the inflation-coverage provision is
1050872
17
unreasonable; it fails to read the provision in the context of
the entire policy, thus giving new meaning--or no meaning--to
terms in second paragraph. Additionally, WCAFC's reading
changes the value and meaning of terms in the first paragraph,
but not the second paragraph, and adds calculations and unit
conversions not actually required. WCAFC's argument is
without merit, and I see no ambiguity in the inflation-
coverage provision.
The court "must enforce the insurance policy as written
if the terms are unambiguous...." Safeway Ins. Co. of Alabama
v. Herrera, 912 So. 2d at 1143. The trial court erred in
determining
that
the
inflation-coverage
provision
was
ambiguous and in submitting the breach-of-contract claim to
the jury on that basis. It is undisputed that State Farm paid
WCAFC the amount required by the unambiguous text of the
insurance policy; thus, State Farm is due a judgment in its
favor on this count.
However, it appears to me that the fact that the breach-
of-contract claim should not have been submitted to the jury
would not make a difference in the judgment award in this
case. Because the defendants have not demonstrated that the
1050872
Because the parties do not dispute that Sally and B.G.
7
could not be liable for breach of contract, no compensatory-
damages award on the breach-of-contract claim was entered
18
trial court erred in denying their motion for a judgment as a
matter of law or in entering a judgment on the suppression
claim, that particular judgment is due to be affirmed. This
raises a troubling issue. The jury rendered two different
compensatory-damages
awards:
$90,000
on
the
breach-of-contract
claim against State Farm, and $90,000 on the suppression claim
against all three defendants. The trial court, however, in an
apparent attempt to avoid a double recovery, entered a single
$90,000
compensatory-damages
award
against
all
three
defendants.
If, as I believe, the breach-of-contract claim is due to
be reversed but the suppression claim is due to be affirmed,
to what extent should the $90,000 compensatory-damages award
remain standing? The verdict in this case was not a general
verdict. There is no dispute that the jury found against
State Farm on the breach-of-contract claim and awarded
$90,000. There is no dispute that the jury found in favor of
WCAFC on the suppression claim and awarded $90,000 in
compensatory-damages against all three defendants and
7
1050872
against them.
19
$350,000 in punitive damages. Removing the $90,000
compensatory-damages judgment on the breach-of-contract claim
leaves the same monetary judgment against all three
defendants: $440,000.
Neither party addresses this issue or presents authority
demonstrating what this Court should do in this situation. It
is not the duty of this Court to seek out authority or to
formulate legal rationales in an attempt to reverse a trial
court's decision based on a jury's verdict. Instead, it is
the appellants' duty to provide a basis for reversing the
judgment of the trial court. Because the verdict on the
suppression claim would support all the damages awarded in
this case, and because the parties do not provide the Court
with authority or legal reasoning on which to hold otherwise,
I concurred originally to affirm the judgment of the trial
court, and I concur in overruling the application for
rehearing. | December 31, 2008 |
f0978bd6-a266-4a45-9f39-61b2a65362af | Hagan v. Crowley | 90 So. 2d 760 | N/A | Alabama | Alabama Supreme Court | 90 So. 2d 760 (1956)
Eugene W. HAGAN et al.
v.
John J. CROWLEY, as Executor, et al.
1 Div. 584.
Supreme Court of Alabama.
November 15, 1956.
*761 Gordon & Jansen, Mobile, for appellants.
Mell A. Frazer and Caffey, Gallalee & Caffey, Mobile, for appellees.
GOODWYN, Justice.
This is a statutory ejectment suit brought by appellees against appellants to recover possession of a tract of land bordering on what is now known as Robinson's Bayou, near Dog River in Mobile County. The case was tried without the intervention of a jury, the evidence being taken orally before the trial judge. From a judgment in favor of plaintiffs, the defendants prosecute this appeal.
It is insisted by appellants that judgment should have been in their favor because, first, appellant Hagan has acquired title to the property by adverse possession, and second, title to the property is outstanding in a third party. The other appellant-defendant, Rachel Hayes, is Hagan's tenant in actual occupancy of the property.
In the final analysis, the validity of appellants' defenses turns upon questions of fact. We have carefully examined the evidence which, on the points in issue, is conflicting. From a consideration of this conflicting evidence the trial court resolved the factual issues in favor of the plaintiffs. When, as here, testimony is taken orally before the trial court, the established rule is that a finding by such court on the facts has the effect of a jury's verdict and will not be disturbed on appeal unless plainly and palpably wrong or against the great preponderance of the evidence. Spruiell v. Stanford, 258 Ala. 212, 216, 61 So. 2d 758, and cases there cited. In the light of this rule, we see no basis for disturbing the trial court's decision.
It appears to be established by the evidence, and the parties apparently concede, that title to the disputed tract was vested in one Daniel Kelly in 1859. Plaintiffs made out their prima facie case by showing a direct chain of title from Kelly to them. There is no question about the property in dispute being included in the instruments in the chain of title.
Briefly, the evidence as to adverse possession is as follows: Defendant Hagan received a deed from Eleanor S. Burgett, a widow, dated October 1, 1936, which he claims conveys to him the disputed property together with an additional tract. This deed was not recorded until 1942, some six years before the filing, in 1948, of the ejectment suit. Hagan listed the property for taxation and paid the taxes for the years 1937 through 1948. In 1946 he built two small houses on the tract, one of which was occupied by defendant Rachel Hayes with Hagan's permission. He testified that he did not rent to the people on the place, that "they were just free to stay there, so they could take care of the boats, and we would go down there on Sunday or something like that fishing, we would have a boat." Prior to 1946 there was no one living on the property and it was not put to any use except as an occasional fishing and picnicking spot. There is some evidence that people kept boats anchored on the water front, with Hagan's permission, but it is not clear how long this had been done, nor just how it had been so used. Hagan testified that he had lived in Mobile and had been regularly engaged in business there for the past 20 years.
Code 1940, Tit. 7, § 828, provides in part as follows:
There appears to be no question that Hagan has fulfilled the requirements of § 828 by listing the property for taxation for ten years prior to the commencement of this action. However, such listing for taxation is not alone sufficient to give him title. It must also be shown that he has been in actual adverse possession of the land during the ten years he listed the property for taxation. It seems to us that what was said in Spradling v. May, 259 Ala. 10, 14-15, 65 So. 2d 494, 498, is of controlling influence here, viz.:
It appears, as already noted, that the only possessory acts by the defendant Hagan prior to 1946 were occasional visits for fishing and picnicking, and the anchoring (for how long and how often not being made clear) of boats at the water's edge with Hagan's permission. We do not think these acts are sufficient, under the rule of our cases, to constitute such an adverse possession as is required in order to work a divestiture of one's title claimed through an unbroken chain of record title.
Briefly, the evidence on this point is as follows: As already noted, it is conceded by the parties that title to the disputed tract was vested in one Daniel Kelly in 1859 as part of a much larger tract. The evidence shows that on December *763 20, 1866, before Kelly's conveyance (on March 18, 1870) to plaintiffs' predecessor in title, he conveyed to one John H. Herbert, out of his lands, a tract containing three acres, more or less, it being recited in the deed that it embraces "the present location of the Herbert saw mill." Defendants contend that the disputed tract is a part of this saw mill site conveyed to Herbert and hence did not pass to plaintiffs' predecessor in title. The defendant does not connect his title with Herbert's title but seeks to prove that title to the disputed tract is outstanding in a third party and not in plaintiffs. It is well-settled that a defendant in ejectment who "[is] in possession in good faith under color of title may defend by showing an outstanding title in another with which he does not connect himself." Lathem v. Lee, 249 Ala. 532, 535, 32 So. 2d 211, 214; Tapia v. Williams, 172 Ala. 18, 29, 54 So. 613; Dodge v. Irvington Land Co., 158 Ala. 91, 96, 48 So. 383, 22 L.R.A.,N.S., 1100. However, the evidence is in conflict as to whether the disputed tract is in fact included in the deed to Herbert. The description in the Herbert deed is as follows:
It will be noted that the north boundary of the property conveyed to Herbert is described as "following the meanderings of Stickney Creek". If the present bed of "Stickney Creek" (now called Robinson's Bayou) is in fact the only bed the creek has had, and is the "Stickney Creek" indicated in the Herbert deed, it would appear that the disputed tract is, as claimed by defendants, included in the Herbert deed. Plaintiffs, however, introduced evidence tending to show that "Stickney Creek" once had two branches, and that a strip of low, marshy land running south of the disputed area was actually "Stickney Creek" referred to in the Herbert deed. It appears that the low, marshy strip coincided with the other metes and bounds in the Herbert description more closely than the present bed of "Stickney Creek" (now known as Robinson's Bayou). It is also to be noted that the description in the Herbert deed recites that it embraces "the present location of the Herbert Saw Mill." Hagan testified that he remembered the mill while it was still partially standing and that it was located on the tract in dispute. A registered surveyor, however, stated that he had found old brick pillars and pilings south of the disputed area, across the strip of marshy ground, indicating that the mill was situated to the south of the disputed tract. This evidence clearly presented a question of fact as to whether the tract now in dispute was actually contained in the conveyance to Herbert. In order for defendants to maintain their defense that title was outstanding in a third party it was essential that there be a finding by the court that the disputed tract was contained in the Herbert deed. The trial court, however, resolved this question in favor of the plaintiffs. Under the settled rule of review we would not *764 be justified in disturbing the trial court's findings from the evidence.
Affirmed.
SIMPSON, MERRILL and SPANN, JJ., concur. | November 15, 1956 |
83047789-0860-46cf-b9ab-188aef81375c | Sharee Self, as successor trustee of the revocable trust of Georgia B. Slaughter v. Bruce Slaughter, individually and as personal representative of the estate of Georgia B.Slaughter, deceased, and Barbara Slaughter Jones | N/A | 1061041 | Alabama | Alabama Supreme Court | REL:12/19/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061041
____________________
Sharee Self, as successor trustee of the revocable trust of
Georgia B. Slaughter
v.
Bruce Slaughter, individually and as personal representative
of the estate of Georgia B. Slaughter, deceased, and Barbara
Slaughter Jones
Appeal from Mobile Circuit Court
(CV-06-2795)
BOLIN, Justice.
Sharee Self, as the successor trustee of the revocable
trust of Georgia B. Slaughter, appeals from the trial court's
1061041
2
summary judgment in favor of Bruce Slaughter and Barbara
Slaughter Jones, which required Self, in her capacity as
trustee, to transfer to Georgia B. Slaughter's estate all
assets held by the revocable trust.
Facts and Procedural History
Wright Slaughter and Georgia B. Slaughter (collectively
referred to as the "Slaughters") were married for 32 years.
There were no children born of their marriage but each had
children born of prior marriages. Wright's four children
included Bruce Slaughter, Rebecca Slaughter Norwood, Barbara
Slaughter Jones, and Wright Slaughter III ("Buddy"). Georgia's
two children included Mike Self and Don Self.
In 1998, the Slaughters had assets totaling approximately
$1.2 million. The assets were apportioned as follows: Wright
had assets totaling $664,464, Georgia had assets totaling
$238,194, and they had joint assets totaling $347,229.
Additionally, Georgia owned a policy of life insurance that
insured Wright's life for $415,986 and that named Georgia as
the beneficiary.
In 1998, the Slaughters sought estate-planning advice
from attorney Harwell E. Coale, Jr. Coale recommended as part
1061041
No provision was made in these two wills for Buddy
1
Slaughter
because
Buddy
was
disabled,
on
government
assistance, and incapable of handling assets.
3
of the Slaughters' estate plan the creation of two separate
and equal estates in order to minimize estate taxes by the use
of a credit-bypass trust. To this end various assets were
transferred between Wright and Georgia so that each individual
estate was approximately equal in value to the other. On June
1, 1998, Wright and Georgia executed identical wills that
provided for a family-support trust upon the death of the
first to die, with the surviving spouse being the lifetime
beneficiary of the trust. Upon the death of the surviving
spouse, the remaining assets of the family-support trust would
be distributed to the Slaughters' children as follows: 22%
each to Wright's children Bruce Slaughter, Rebecca Slaughter
Norwood, and Barbara Slaughter Jones, and 17% each to
Georgia's children Don Self and Mike Self. The wills
1
provided that each spouse would be the other's personal
representative and that successor co-personal representatives
would be Mike Self and Bruce Slaughter.
On June 1, 1998, Wright also executed an irrevocable
trust into which the life insurance policy with death benefits
1061041
4
totaling $415,986 was transferred. Georgia was made the life
beneficiary of the trust with the remainder being distributed
to the Slaughters' children in the same proportions as the
remainder of the family-support trust assets was to be
distributed under the wills.
At the time the Slaughters executed their wills, Georgia
also executed the following agreement:
"I swear before God, the Court, and my husband
that I will NOT change my Last Will and Testament
executed on June 1, 1998, after my husband, Wright
B. Slaughter, becomes physically or mentally ill or
dies; and if I do change my said Will for any reason
whatsoever, or if I marry again and change my said
Will, that will be ample reason to break or
disregard any future Will that I make and Harwell
Coale will represent this Will in Court."
Wright executed a substantially identical agreement. Coale
testified that the Slaughters presented these agreements to
him in handwritten form and that he had the agreements typed
and notarized. He stated that the Slaughters wanted to
execute the agreements to ensure that the surviving spouse
could not change his or her will after the other died.
In January 2002, the Slaughters executed identical
codocils to their 1998 wills. The Slaughters reduced Rebecca
Slaughter Norwood's share from 22% to 17% and increased Bruce
1061041
5
Slaughter's and Barbara Slaughter Jones's shares to 24.5%.
Georgia's two children, Mike Self and Don Self, did not
receive an increased share.
In June 2002, the Slaughters again executed identical
codicils to the 1998 wills. The purpose of the codicils was
to assure that Georgia would receive monthly income from the
family-support trust and to completely remove from the wills
Wright's daughter, Rebecca Slaughter Norwood. Pursuant to the
codicils executed in June 2002, Rebecca's 17% share was
reallocated to Bruce Slaughter and Barbara Slaughter Jones so
that their shares under the 1998 wills increased to 33% each.
Georgia's two children, Mike and Don, did not receive an
increased share. Subsequent to the execution of the 1998
wills and the subsequent codicils, Wright began day-trading on
the stock market and lost approximately $203,000 between 2000
to 2005.
Wright died in November 2005. Wright's will was admitted
to probate, and his estate passed consistent with the terms of
the will to fund the family-support trust for Georgia.
Shortly after Wright's death, Georgia discussed with Coale the
possibility of changing her will because she felt that the way
1061041
6
the assets were to be distributed under the will was unfair to
her two children and to Wright's son Buddy. Coale advised
Georgia that it would be inappropriate for him to assist her
in changing her will because of the agreement that she and
Wright had executed in which they each agreed not to change or
revoke their 1998 wills subsequent to the other's death.
Coale referred Georgia to attorney Greg Watts.
In November 2005, Georgia, Mike Self, and Mike's wife
Sharee Self met with Watts to discuss Georgia's will. Georgia
informed Watts that the disposition of her estate under her
will was not fair to her children and Buddy and that she
wanted to change it. Watts recommended to Georgia, Mike, and
Sharee that Georgia create a revocable trust that would own
all of her assets and would provide for disposition of those
assets to her children and Buddy upon her death. Georgia
executed the Georgia B. Slaughter Revocable Trust on March 3,
2006. Pursuant to the terms of the revocable trust, Georgia's
children Mike and Don were to receive her residence, household
effects, furniture, furnishings, silverware, chinaware, art,
jewelry, automobiles, and other personal property in equal
shares. The balance of the trust was to be distributed to
1061041
Buddy's share was not to be distributed to him but was
2
to be held in trust by the trustee of the revocable trust for
his benefit during his lifetime.
Mike Self is a co-personal representative of Georgia's
3
estate and agreed that he would not participate in, but would
not oppose the filing of, the declaratory-judgment action by
the personal representative.
Georgia was the trustee of her revocable trust until her
4
death; Sharee was then named as the successor trustee.
7
Don, Mike, and Buddy, each receiving 33 1/3%. All Georgia's
2
assets were transferred into the trust during March and April
2006. The effect of establishing the revocable trust and
transferring Georgia's assets into it was that there would be
no assets to be distributed to the two of Wright's children
who were benificiaries of Georgia's 1998 will –- Bruce and
Barbara. Georgia died on April 13, 2006, shortly after
executing the revocable trust. Her will was admitted to
probate in July 2006.
On August 11, 2006, Bruce Slaughter, individually and as
the personal representative of Georgia's estate, and Barbara
Slaughter Jones, individually (collectively referred to
hereinafter as "the personal representative"), sued Sharee
3
Self ("the trustee") as the successor trustee of the Georgia
4
B. Slaughter Revocable Trust, seeking a judgment declaring
1061041
8
that the transfer of assets into the trust was a nullity and
that the assets purportedly transferred into the trust are the
property of Georgia's estate. The complaint also sought an
attorney fee.
On October 23, 2006, the trustee answered the complaint
and asserted a counterclaim, seeking a judgment declaring 1)
that the revocable trust is valid and enforceable because, she
argued, the execution of the codocils in 2002 served as a
revocation of any agreement that may have existed between
Wright and Georgia not to change their wills and 2) that the
dissipation by Wright of the assets of his estate constitutes
an anticipatory breach of the agreement or a failure of
consideration for the agreement not to change the wills.
On January 12, 2007, the personal representative moved the
trial court for a summary judgment. On March 1, 2007, the
trustee amended her answer to add failure of consideration as
an affirmative defense. The trustee also on that same day
filed
her
motion
in
opposition
to
the
personal
representative's motion for a summary judgment.
Following a hearing, the trial court, on March 30, 2007,
entered
a
summary
judgment
in
favor
of
the
personal
1061041
9
representative, finding that the transfer of Georgia's assets
from her estate to the revocable trust breached the agreement
executed by her and Wright that the latter of them to die
would not change his or her will after the other's death. The
trial court ordered the trustee to transfer to Georgia's
estate all assets held in the revocable trust; ordered that
all attorney fees and expenses be paid out of Mike Self's and
Don Self's shares of Georgia's estate; and denied the
trustee's counterclaim.
Standard of Review
This Court has stated the applicable standard of review
as follows:
"'Summary judgment is appropriate only when
"there is no genuine issue as to any material fact
and ... the moving party is entitled to a judgment as
a matter of law." Rule 56(c)(3), Ala. R. Civ. P.,
Young v. La Quinta Inns, Inc., 682 So. 2d 402 (Ala.
1996). A court considering a motion for summary
judgment will view the record in the light most
favorable to the nonmoving party, Hurst v. Alabama
Power Co., 675 So. 2d 397 (Ala. 1996), Fuqua v.
Ingersoll-Rand Co., 591 So. 2d 486 (Ala. 1991); will
accord the nonmoving party all reasonable favorable
inferences from the evidence, Fuqua, supra, Aldridge
v. Valley Steel Constr., Inc., 603 So. 2d 981 (Ala.
1992); and will resolve all reasonable doubts against
the moving party, Hurst, supra, Ex parte Brislin, 719
So. 2d 185 (Ala. 1998).
1061041
10
"'An appellate court reviewing a ruling on a
motion for summary judgment will, de novo, apply
these same standards applicable in the trial court.
Fuqua,
supra,
Brislin,
supra.
Likewise,
the
appellate court will consider only that factual
material available of record to the trial court for
its consideration in deciding the motion. Dynasty
Corp. v. Alpha Resins Corp., 577 So. 2d 1278 (Ala.
1991), Boland v. Fort Rucker Nat'l Bank, 599 So. 2d
595 (Ala. 1992), Rowe v. Isbell, 599 So. 2d 35 (Ala.
1992).'"
Ex parte Turner, 840 So. 2d 132, 135 (Ala. 2002) (quoting Ex
parte Rizk, 791 So. 2d 911, 912-13 (Ala. 2000)).
Discussion
Contracts not to revoke a will or devise are enforceable
under Alabama law. See § 43-8-250, Ala. Code 1975. In
Humphries v. Whiteley, 565 So. 2d 96, 97 (Ala. 1990), a
husband and wife made reciprocal wills that contained the
following provisions:
"'THIRD ITEM: At my death I hereby give, devise and
bequeath all the rest and residue of my estate, both
real and personal, wheresoever situate, unto my
spouse in absolute fee simple.
"'....
"'FIFTH ITEM: My spouse and I are executing our wills
at or about the same time and such wills are intended
to be and should be construed [as] contractual and
reciprocal wills. Neither wills [sic] shall be
subject to revocation by it's [sic] maker without the
consent of the other party.'"
1061041
11
The husband and wife each had children from previous
marriages. The wife's will also contained the following
provision:
"'[I]n the event my said spouse shall predecease me,
then in such event I give, devise and bequeath all my
estate, both real and personal, wheresoever situate,
of which I may die seized or possessed, or to which
I may be or become entitled to have any interest or
over which I may have any power of appointment, unto
my children, Gwinnette Meads Bates and Travis
Humphries, and my husband's children, Morris W.
Whiteley, Bobby Whiteley, David Whiteley and Lanny
Whiteley, in equal shares, share and share alike, in
absolute fee simple, per stirpes and not per
capita.'"
Humphries, 565 So. 2d at 97. The husband's will contained a
similar provision to leave all of his property to all of their
children equally in the event that the wife died first.
The husband predeceased the wife, and, under the terms of
the husband's will, she took title to all of their property.
Subsequently, the wife began making gifts to her children
only. By the time the wife died, the estate had been
significantly
reduced.
The
wife's
children
filed
a
declaratory-judgment action to determine how the wife's estate
was
to
be
handled.
The
husband's
children
filed
a
counterclaim, seeking to set aside the gifts the wife had made
1061041
12
to her children. The trial court entered a judgment in favor
of the husband's children and set aside the gifts. Id.
In affirming the trial court's decision, this Court quoted
the following from the trial court's findings of fact and
conclusions of law:
"'"'The weight of authority is that a contract
to devise does not prevent the making of gifts during
the lifetime of the promisor; but such gifts must be
reasonable, absolute, bona fide, not testamentary in
effect, and not made for the purpose of defeating the
contract to devise, nor having such effect.' Skinner
v. Rasche, 165 Ky. 108, [112,] 176 S. W. 942, 944
[(1915)]."'"
Humphries, 565 So. 2d at 100 (quoting in turn Wagar v.
Marshburn, 241 Ala. 73, 78-79, 1 So. 2d 303, 307 (1941)).
In this case, it is clear from the record that the
creation of the revocable trust and the transfer of Georgia's
assets into the trust were for the clear purpose of defeating
the contract Wright and Georgia had entered into whereby each
agreed not to change his or her 1998 will upon the other's
death. Georgia informed Watts in November 2005 that the
disposition of her estate under her will was not fair to her
children and Buddy and that she wanted to change it. Watts
testified in his deposition as follows:
1061041
13
"Q. [By Slaughter and Jones's counsel:] All
right. Looking back now at the November 28 memo, in
the final paragraph on the first page you have the
line: 'Georgia Slaughter now believes that the
disposition under her will does not treat her
children fairly and desires to change her will.' Did
she explain to you her thought process as to why she
felt it was not fair to her children?
"A. That if -- the first important thing was
that when Rebecca Norwood and Buddy were not provided
for, the share for her children should have been
higher. She was also concerned at that time that her
house would be included in this estate plan, and we
had a specific discussion about her jewelry, which
she regarded to be hers.
"Q. The next sentence in that same paragraph
you have the line: 'Unfortunately, Harwell Coale also
prepared a contract signed by each of Georgia and
Wright Slaughter by which each of them agreed not to
change or revoke their 1998 wills.'
"A. Yes.
"Q. Why was it unfortunate?
"A. Because it was a problem to comply with
what she wanted to do.
"Q. It stood in the way, so to speak --
"A. Yes.
"Q. –- of her desire to change her will?
"A. Yes.
"....
1061041
14
"Q. ... [C]an you tell me, Greg, what the
subject matter of the paragraph, redacted paragraph,
is?
"A. Different means of accomplishing what she
wanted to do without violating that contract.
"Q. That's fair enough. The next line that we
have in the memo that's not redacted is: 'After an
extended discussion, we determined that the cleanest
approach would be for me to prepare an inter vivos
revocable trust that would own all of [Georgia's]
assets and that would provide for disposition of her
assets at her death.'
"....
"Q. Why was using the inter vivos trust the
cleanest approach?
"A. It addressed her concerns across the board
as opposed to other alternatives that would involve
other
alternatives,
like
payable-on-death
designations or life estates in houses. To provide
for what she wanted to do was to provide for her
property to go to Mike, Don, and set up a trust for
[Buddy]. ..."
Watts also testified that he informed Georgia, Sharee, and
Mike that agreements not to revoke or change a will were valid
and enforceable agreements and that a challenge to the
creation of the revocable trust and the transfer of Georgia's
assets into the trust was likely.
The trustee testified in her deposition as follows:
1061041
15
"Q. If the Revocable Trust is upheld, there
won't be any assets to pass under [Georgia's] 1998
will, right?
"A. That's what I understand.
"Q. And that was the intent, wasn't it, in
drafting a Revocable Trust, to have it, in effect,
replace [Georgia's] will?
"A. Yes, I would think so."
Here, Georgia and Wright executed a valid and enforceable
agreement by which the surviving spouse would not change or
revoke his or her will following the other's death. That
agreement cannot be circumvented by the creation of the
revocable trust and the transfer of Georgia's assets into the
trust when it is clear that the sole purpose for creating the
revocable trust was to defeat the agreement not to change or
revoke the 1998 wills executed by Wright and Georgia.
The trustee argues, however, that the depletion by Wright
of his separate estate by day-trading on the stock market
constitutes
a
failure
of
consideration
that
renders
unenforceable the agreement not to change the wills. We
disagree. "Consideration must be present when the contract is
made." Fant v. Champion Aviation, Inc., 689 So. 2d 32, 37
(Ala. 1997). "The requirement of consideration means that a
1061041
16
gratuitous promise is not enforceable." Id. The failure of
consideration is "'the neglect, refusal and failure of one of
the contracting parties to do, perform, or furnish, after
making and entering into the contract, the consideration in
substance and in fact agreed on.'" Lemaster v. Dutton, 694
So. 2d 1360, 1366 (Ala. Civ. App. 1996) (quoting 17 C.J.S.
Contracts § 129 (1963)). Additionally, a failure of
consideration is "'predicated on the happening of events which
materially change the rights of the parties, which events were
not within their contemplation at the time of the execution of
the contract.'" Lemaster, 694 So. 2d at 1366 (quoting
Contracts § 129).
Wright supplied consideration for Georgia's promise not
to change her will when he transferred to Georgia a
significant amount of assets titled solely in his name in
order to create two separate and equal estates. Before the
transfer of assets to Georgia, Wright had titled solely in his
name $664,464 of the couple's approximately $1.2 million in
total assets (including jointly held assets and Georgia's
solely owned assets of $238,194). Thus, a transfer of assets
by Wright to Georgia in order to create two separate and equal
1061041
17
estates resulted in a significant reduction in the value of
Wright's individual estate. Additionally, Wright supplied
consideration to Georgia in exchange for her promise not to
change or revoke her will when upon his death the balance of
his estate passed into the family-support trust for Georgia's
benefit.
The trustee contends that the $203,000 diminution in
Wright's estate due to losses from day-trading materially
altered the amount each child would receive under the wills
and that that diminution could not have been contemplated by
Georgia at the time she executed her will, the agreement not
to change the will, and the codicils. On the contrary, the
diminution of the parties' assets was reasonably expected due
to several considerations. A diminution of assets would be
reasonably contemplated by Wright and Georgia because the
couple had been retireed for approximately seven years after
the estate plan was put in place. Further, because the estate
plan called for the creation of the family-support trust upon
the death of the first spouse, it was easily within Wright's
and Georgia's contemplation that the parties' assets would be
reduced because they would have been used for the support of
1061041
18
the surviving spouse under the terms of the trust until the
death of the surviving spouse. However, this aspect of
diminution of the assets is ignored by the trustee in arguing
failure of consideration. Rather, the trustee focuses solely
on the investment losses suffered by Wright. However, it was
certainly within contemplation that Wright, a retiree of
significant wealth, would seek investment opportunities on the
stock market and that both gains and losses could result from
those investments. The assets could have easily increased had
Wright been more successful at trading on the stock market.
Accordingly, we conclude that there was no failure of the
consideration given by Wright in exchange for Georgia's
executing the agreement not to change or revoke her will.
The trustee next argues that Georgia agreed only not to
change her will and that the inter vivos transfer of her
assets into the revocable trust does not constitute a breach
of the agreement not to change her will. Here, the parties
did indeed use the word change in reaching the agreement at
issue, and by creating the revocable trust and transferring
the balance of her estate into the revocable trust Georgia did
not technically work a change to her will. However,
1061041
19
transferring the balance of her estate into the revocable
trust had the effect of revoking her will, because upon her
death there was nothing left in her estate to be distributed
in accordance with the terms of her will. As discussed above,
contracts not to revoke a will or devise are enforceable under
Alabama
law
and
inter
vivos
transfers
–-
whether
to
individuals or trusts –- cannot be used to circumvent such
contracts. Indeed, "'such gifts must be reasonable, absolute,
bona fide, not testamentary in effect, and not made for the
purpose of defeating the contract to devise, nor having such
effect.' Skinner v. Rasche, 165 Ky. 108, [112,] 176 S.W.
942, 944 [(1915)]." Humphries, 565 So. 2d at 100 (emphasis
added). There is a fundamental principle of law that "one
cannot do indirectly what one cannot do directly." Blue Cross
& Blue Shield of Alabama, Inc. v. Butler, 630 So. 2d 413, 416
(Ala. 1993). See also Baldwin County v. Jenkins, 494 So. 2d
584, 589 (Ala. 1986); Sanders v. Cabaniss, 43 Ala. 173 (1869).
Accordingly, we conclude that the transfer of the assets of
Georgia's estate into the revocable trust, which was created
for the purpose of circumventing the terms of her will,
1061041
20
constitutes a breach of the agreement not to change or revoke
her will.
The trustee next argues that the trial court erred in
ordering that all attorney fees and expenses be paid out of
Mike Self's and Don Self's shares of Georgia's estate. The
personal representative argued in its motion for a summary
judgment that the transfer of assets from Georgia's estate to
the revocable trust should be set aside and that all attorney
fees should be awarded out of Don Self's and Mike Self's
shares of Georgia's estate. The trustee argued in response
only that genuine issues of material facts existed relating to
the enforcement of the agreement not to change the wills and
offered nothing in response to the personal representative's
argument
in
support
of
attorney
fees
and
expenses.
Additionally, following the entry of the summary judgment by
the trial court, the trustee offered no opposition by way of
a postjudgment motion to the trial court's award of attorney
fees and expenses. This Court has stated:
"'As a general rule, an appellate court will not
reverse a summary judgment on a ground not presented
in the trial court.
"'"[T]he appellate court can consider an
argument against the validity of a summary
1061041
21
judgment only to the extent that the record
on appeal contains material from the trial
court record presenting that argument to
the trial court before or at the time of
submission
of
the
motion
for
summary
judgment."
"'Ex parte Ryals, 773 So. 2d 1011, 1013 (Ala. 2000)
(citing Andrews v. Merritt Oil Co., 612 So. 2d 409
(Ala. 1992)). Put another way, on an appeal from a
summary judgment, this Court cannot hold the trial
court in error on the basis of arguments made for the
first time on appeal. See Barnett v. Funding Plus of
America, Inc., 740 So. 2d 1069 (Ala. 1999); West Town
Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.
2d 1290 (Ala. 1993).'"
Cain v. Howorth, 877 So. 2d 566, 578 (Ala. 2003) (quoting Ex
parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So. 2d 308,
311-12 (Ala. 2001)). Accordingly, because the trustee failed
to submit to the trial court her arguments in opposition to
the award of attorney fees and expenses, we will not address
those arguments, which are presented for the first time on
appeal.
AFFIRMED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | December 19, 2008 |
8a118cee-d048-472a-9748-bceb1d589910 | Cherrie Lawson v. William H. Moore, Jr., M.D., and Whittington, Moore & Kouri, P.C. | N/A | 1070634 | Alabama | Alabama Supreme Court | REL: 12/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070634
____________________
Cherrie Lawson
v.
William H. Moore, Jr., M.D., and Whittington, Moore & Kouri,
P.C.
Appeal from Montgomery Circuit Court
(CV-05-3246)
SMITH, Justice.
Cherrie Lawson appeals from a judgment as a matter of law
entered against her in an action she filed against William H.
Moore, Jr., M.D., and Whittington, Moore & Kouri, P.C.
(collectively referred to as "the Moore defendants"). We
reverse and remand.
1070634
According to Dr. Moore's brief,
1
"[in] an ectopic pregnancy, the developing embryo
does not implant on the endometrial wall, but
instead attaches to some other surface. Ectopic
pregnancy allows the conceptus to implant and mature
outside the endometrial cavity, which ultimately
ends in death of the fetus. Without timely
diagnosis and treatment, ectopic pregnancy can
become
a
life-threatening situation. Ectopic
pregnancy
currently
is
the
leading
cause
of
pregnancy-related death during the first trimester
in the United States."
2
Facts and Procedural History
On December 27, 2003, Lawson went to the emergency room
of Baptist Medical Center South in Montgomery with complaints
of pain in her abdomen and pelvic area. Dr. Henry Kurusz, an
emergency-room physician, examined Lawson and ordered that she
undergo several tests, including a pregnancy test and an
ultrasound. The pregnancy test was positive, and the
ultrasound revealed the existence of a cyst on Lawson's left
ovary. The ultrasound did not, however, definitely show the
existence an intrauterine pregnancy, and the hospital records
from Lawson's visit indicate that Lawson informed Dr. Kurusz
that she had previously experienced an ectopic pregnancy.1
Dr. Kurusz diagnosed Lawson as being at risk for a
miscarriage, and he discharged her with instructions to return
1070634
Dr. Moore's brief states: "Pseudo gestational sacs are
2
created as a result of hormones excreted by the body in
response to the developing ectopic pregnancy. These sacs
typically develop in the central aspect of the endometrial
cavity, as opposed to being buried within the uterine wall as
common with healthy or viable gestational sacs."
3
to the hospital in 48 hours for additional examination.
Lawson did not return to the hospital in accordance with
Dr. Kurusz's instructions. However, on December 31, 2003, she
again went to the emergency room of the hospital with
complaints of abdominal pain. A different emergency-room
physician, Dr. James Bradwell, examined Lawson and ordered a
repeat ultrasound, a quantitative pregnancy test, and a
urinalysis.
At 3:30 a.m. on the morning of January 1, 2004, Dr.
Bradwell asked Dr. Moore, an obstetrician/gynecologist, to
examine Lawson, and Dr. Moore agreed to do so. According to
Dr. Moore, Dr. Bradwell stated that Lawson had an ectopic
pregnancy and that the ultrasound revealed the presence of a
pseudo- or "false" gestational sac located in the endometrial
cavity. After examining Lawson, Dr. Moore diagnosed her as
2
having an ectopic pregnancy.
Dr. Moore instructed Lawson that an ectopic pregnancy is
a serious, life-threatening condition and that she would be
1070634
According to Dr. Moore's brief, "[m]ethotrexate is an
3
antimetabolite drug used for treatment of ectopic pregnancies.
Methotrexate causes ectopic pregnancies to degenerate without
having to utilize surgical methods of removal."
Dr. Moore testified that Lawson informed him that she had
4
undergone a number of specific surgical procedures. He
testified further that Lawson, in deciding to be treated by
the use of methotrexate, told him she "did not want to have
another surgery."
4
monitored closely pending a follow-up laboratory analysis. He
discussed giving her the drug methotrexate to terminate her
3
pregnancy; he also told Lawson that she might need surgical
intervention.
On the morning of January 2, 2004, Dr. Moore again
evaluated Lawson. Lawson continued to be in tremendous pain,
and Dr. Moore again discussed her treatment options. He
provided her with medical literature discussing methotrexate
and its benefits and the risks of treatment with that drug.
That afternoon, Lawson informed Dr. Moore that she had decided
to undergo the methotrexate treatment. Lawson received an
4
injection of methotrexate later that evening.
Lawson remained in the hospital under Dr. Moore's care
until January 4, 2004. After her discharge from the hospital,
Lawson continued to receive treatment from Dr. Moore at his
office, including follow-up ultrasounds. Ultimately, the
1070634
The Moore defendants did not move for a summary judgment
5
before the case was tried.
5
methotrexate injection terminated Lawson's pregnancy. On
January 30, 2004, Dr. Moore performed a dilation-and-curettage
procedure to remove the remnants of the terminated pregnancy.
On December 23, 2005, Lawson sued the Moore defendants,
alleging that at the time she received the methotrexate
injection she had in fact had a viable intrauterine pregnancy
and that Dr. Moore acted negligently (1) in failing to
discover the alleged intrauterine pregnancy and (2) in
recommending and administering the methotrexate injection.
The Moore defendants answered the complaint, denying the
allegations.
After the parties completed discovery, the cause was
tried before a jury. The trial court denied the Moore
5
defendants' motions for a judgment as a matter of law ("JML")
made at the close of Lawson's case and at the close of all the
evidence.
The jury was unable to reach a verdict. The Moore
defendants moved for a mistrial and again moved for a judgment
as a matter of law. In a written order, the trial court
granted the motion for a JML but did not explain in that order
1070634
6
its basis for doing so. Lawson filed a motion to alter,
amend, or vacate the judgment. The trial court held a hearing
on that motion, and the motion was denied by operation of law
under Rule 59.1, Ala. R. Civ. P. This appeal followed.
Standard of Review
The standard of review applicable to a ruling on a motion
for a JML was stated in Mobile Infirmary Medical Center v.
Hodgen, 884 So. 2d 801, 808-09 (Ala. 2003):
"Our standard of review for a renewed motion for
a JML is well settled:
"'In reviewing the trial court's ruling on
a motion for a JML, an appellate court uses
the same standard the trial court used in
ruling on the motion initially. Thus, "'we
review the evidence in a light most
favorable
to
the
nonmovant,
and
we
determine whether the
party
with the
burden
of proof has produced sufficient evidence
to
require
a
jury
determination.'"
Acceptance Ins. Co. v. Brown, 832 So. 2d 1,
12
(Ala. 2001),
quoting American Nat'l Fire
Ins. Co. v. Hughes, 624 So. 2d 1362,
1366-67 (Ala. 1993); see, also, Jim Walter
Homes, Inc. v. Kendrick, 810 So. 2d 645,
649-50 (Ala. 2001).'
"Hicks v. Dunn, 819 So. 2d 22, 23-24 (Ala. 2001).
Thus, in reviewing the evidence in this case, we are
required to construe the facts and any reasonable
inferences that the jury could have drawn from them
most favorably to [the nonmovant]."
Additionally, this Court noted in Liberty Life Insurance Co.
1070634
7
v. Daugherty, 840 So. 2d 152, 156 (Ala. 2002):
"'"A judgment as a matter of law is proper only
where there is a complete absence of proof on a
material issue or where there are no controverted
questions of fact on which reasonable people could
differ and the moving party is entitled to a
judgment as a matter of law."' Southern Energy
Homes, Inc. v. Washington, 774 So. 2d 505, 510-11
(Ala. 2000), quoting Locklear Dodge City, Inc. v.
Kimbrell, 703 So. 2d 303, 304 (Ala. 1997). In
reviewing the denial of a motion for a judgment as
a matter of law, this Court is required to view the
evidence in a light most favorable to the nonmovant.
Kmart Corp. v. Kyles, 723 So. 2d 572, 573 (Ala.
1998). Therefore, where the evidence in the record
is disputed, we present it in a light most favorable
to [the nonmovant]."
Discussion
The sole issue in this appeal, as argued by the Moore
defendants in their motion for a JML in the trial court and in
their materials to this Court, is whether Lawson offered
substantial evidence indicating that, when the methotrexate
was administered, there was a viable intrauterine pregnancy.
The Moore defendants contend:
"Based on the nature of Ms. Lawson's allegations,
she could recover damages against [Dr. Moore] if,
and only if, her intrauterine pregnancy was viable,
i.e., if the pregnancy probably would have survived
to
term
without
Dr.
Moore
administering
methotrexate.
If
Ms.
Lawson's
intrauterine
pregnancy was probably nonviable--and probably would
not have survived to term regardless of Dr. Moore's
treatment--then
there
would
be
no
basis
for
1070634
Dr. Blackwell testified specifically as follows:
6
"Q. All right, sir. Now with regard to the
ultrasound on January 1, do you have an opinion as
to whether that ultrasound demonstrated a normal,
healthy, viable fetus, a fetus that had opportunity
to be born?
"A. I don't believe this was a viable
pregnancy. No matter how you dated the pregnancy,
you basically didn't see any of the markers that
should have been seen.
"....
"Q. ... Based on what you see on the ultrasound
report for January 1, what is your opinion with
regard to whether--whatever was defined had any
opportunity to develop into a live healthy baby?
"A. I don't think this would have resulted in
a live birth.
8
attributing Ms. Lawson's alleged damages to Dr.
Moore. Simply stated, if the intrauterine pregnancy
probably would have failed regardless of Dr. Moore's
treatment, he cannot be found to have caused Ms.
Lawson's injury."
The Moore defendants cite the testimony of their expert,
Dr. Richard Blackwell, who testified that, taking into account
the information Dr. Moore had at the time, Dr. Moore acted
appropriately in administering the methotrexate on January 2,
2004, because, Dr. Blackwell asserted, Lawson's pregnancy
would have failed regardless of the administration of the
methotrexate. Additionally, the Moore defendants contend
6
1070634
"Q. What in your judgment would have occurred
in time?
"A. If you simply left it alone long enough,
you would have had an ultimate miscarriage hopefully
without having some of the complications that can
occur from a retained pregnancy.
"....
"Q. ... In your judgment, did Dr. Moore provide
appropriate and good care to this patient?
"A. Yes, he did.
"Q. Did he do
anything to destroy an
opportunity
for
an
intrauterine
pregnancy
to
develop?
"A. Absolutely not. And I think probably helped
preserve her fertility.
"Q. And did he also potentially save her life
by treating the ectopic pregnancy?
"A. Yes, sir."
9
that the ultrasounds conducted on Lawson on January 1 and
January 3, 2004, demonstrate that no viable intrauterine
pregnancy was present. In support of that assertion, the
Moore defendants cite Dr. Moore's testimony at trial as well
as the testimony of Dr. Berto Lopez, who testified as an
expert on Lawson's behalf.
Lawson, however, contends that Dr. Lopez's testimony at
1070634
"The hormone human chorionic gonadotropin (better known
7
as hCG) is produced during pregnancy and can be used to
determine the viability of pregnancy." Dr. Moore's brief, p.
18 n.6.
10
trial provided substantial evidence indicating that a viable
intrauterine pregnancy existed and that, based on the
information available to him on January 2, 2004, Dr. Moore
acted
negligently
in
recommending
and
administering
methotrexate to Lawson. Specifically, Dr. Lopez testified as
follows:
"A. .... On the basis of the information Dr.
Moore had on January 2, he had ultrasounds that
showed what you would expect a progression of a
normal pregnancy. He had hormone numbers that
showed a normal progression of a pregnancy. And
that's not the candidate that you give methotrexate
to if you suspect an ectopic pregnancy or other type
of pregnancy other than a normal pregnancy. Because
once you give it you can't give it back. And the
worse thing in the world is to administer something
you can't take back and the very next day you find
out that it was in fact a pregnancy inside of the
uterus.
"That
baby
is now doomed to suffer
the
consequences of methotrexate.
"Q. And that consequence is what?
"A. Consequence is that baby will die and it is
substandard in the presence of his knowledge that
the beta HCG,
the hormone numbers were rising.
[7]
The serum progesterone indicated that this is a baby
that was going to survive more likely than not. And
that the ultrasounds were encouraging that there was
1070634
11
something inside of the uterus that looked like a
baby.
"He should not have used methotrexate. And I'm
critical of his use of methotrexate knowing these
facts in advance of his administration on the 2nd of
January of 2004.
"Q. Do you express that opinion to a medical--
to a reasonable degree of medical certainty?
"A. Yes, to a reasonable degree of medical
certainty it was inappropriate for Dr. Moore to have
administered methotrexate to patient Lawson in light
of the fact that I mentioned before.
"Q. And is this your opinion that there is a
cause and effect relationship between his breach of
the standard of care and the ultimate fetus, demise
of the fetus?
"A. Yes. To a reasonable degree of medical
certainty the reason this baby died is because of
the administration of methotrexate.
"Q. Do you still or do you maintain or advocate
that opinion in light of what you know and what you
have reviewed from Mrs. Lawson's presentment at the
emergency room and on December 27 and/or December
31, 2003?
"A. Yes. Because again she has progression of
her beta HCGs. Her ultrasounds showed progression
of the things, the landmarks that you would expect
in a normal pregnancy. And the possibility that
this was a pregnancy inside of the uterus had to be
respected above all else.
"Now if he had concerns that it was an ectopic
pregnancy, he had other options for treating an
ectopic pregnancy. He could have taken her to the
operating room and either cut her stomach open and
1070634
Dr. Lopez
also
testified
that
ultrasounds
performed
after
8
January 2, 2004, confirmed that Lawson had a viable
intrauterine pregnancy. Specifically, Dr. Lopez testified
that one of the ultrasounds showed the fetus as having a
heartbeat of 88 beats per minute, which he testified was
"slower than normal" but consistent with what he would expect
given that "this baby [had] been exposed to [a] lethal dose of
methotrexate." Dr. Moore testified, however, that the normal
heartbeat range for a fetus in the first trimester is between
12
looked around for an ectopic pregnancy or gone in
through her belly button and looked for ectopic
pregnancy. And those two things would not have
harmed the pregnancy that was inside of her uterus.
It would not have been, you know, something that
could not be taken back, shall we say. In other
words, it was not a course of action for which there
was no recourse.
"If you do surgery on a patient and they turn
out not to have an ectopic pregnancy, most of the
time the pregnancy progresses normally to whatever
destiny it is going to have otherwise. So there
were other options that were available to him with
the information he had. The one he chose was the
one that was probably the worse for the baby and
certainly the one that you couldn't take back. And
that was a mistake."
(Emphasis added.)
We agree with Lawson that Dr. Lopez's testimony in that
regard is substantial evidence indicating that a viable
intrauterine pregnancy existed and that, based on the
information available to him on January 2, 2004, Dr. Moore
acted
negligently
in
recommending
and
administering
methotrexate to Lawson.
8
1070634
120 and 160 beats per minute and that such a fetus, if viable,
could not have a heartbeat rate of 88 beats per minute.
13
At the hearing on Lawson's postjudgment motion, the trial
court stated "that there was absolutely no credible evidence,
none, I mean, not a shred of credible evidence to support a
finding for [Lawson]" and that "the overwhelming evidence, the
substantial evidence, was for a defense verdict." In ruling
on a motion for a JML, however, a court is to determine
whether there is substantial evidence to support each element
of the nonmovant's claim. Mobile Infirmary Med. Ctr., 884
So. 2d at 808-09; Liberty Life Ins. Co., 840 So. 2d at 156.
In this case, Lawson presented substantial evidence through
Dr. Lopez's testimony indicating that Dr. Moore acted
negligently and that his alleged negligence terminated a
viable intrauterine pregnancy. Although Dr. Lopez's testimony
in that regard is in conflict with Dr. Moore's testimony and
the testimony of the Moore defendants' expert, Dr. Blackwell,
"[a] motion for a judgment as a matter of law 'is properly
denied where there exists any conflict in the evidence for
consideration by the jury.'" Williams v. BIC Corp., 771 So.
2d 441, 446 (Ala. 2000) (quoting Cloverleaf Plaza, Inc. v.
Cooper & Co., 565 So. 2d 1147, 1149 (Ala. 1990)). See also
1070634
14
Liberty Life Ins. Co., 840 So. 2d at 156 ("'"A judgment as a
matter of law is proper only where there is a complete absence
of proof on a material issue or where there are no
controverted questions of fact on which reasonable people
could differ and the moving party is entitled to a judgment as
a matter of law."'" (quoting Southern Energy Homes, Inc. v.
Washington, 774 So. 2d 505, 510-11 (Ala. 2000), quoting in
turn Locklear Dodge City, Inc. v. Kimbrell, 703 So. 2d 303,
304 (Ala. 1997))). Consequently, the trial court erred in
granting the Moore defendants' motion for a JML.
Conclusion
The judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
See, Woodall, Bolin, and Parker, JJ., concur.
Cobb, C.J., recuses herself. | December 31, 2008 |
2e52b9bf-c028-4d84-923e-5e27ac4ce22a | Nationwide Mutual Fire Insurance Company v. Estate of Jack Files | N/A | 1071288 | Alabama | Alabama Supreme Court | rel: 11/26/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071288
_________________________
Nationwide Mutual Fire Insurance Company
v.
Estate of Jack Files, deceased
Appeal from Walker Circuit Court
(CV-04-318)
WOODALL, Justice.
Nationwide Mutual Fire Insurance Company ("Nationwide")
appeals from a $75,000 judgment against it and in favor of the
estate of Jack Files, deceased. We reverse and render a
judgment for Nationwide.
1071288
2
The relevant facts are undisputed. On May 1, 2001, Jack
Files and Herbert Sanford were involved in a physical
altercation that resulted in injuries to Files. At the time
of the incident, Sanford was insured under a homeowner's
insurance policy issued by Nationwide that included personal-
liability coverage. Sanford never notified Nationwide of the
incident involving Files.
Nationwide first learned of the altercation between Files
and its insured on October 1, 2001, when it was contacted by
Files's attorney. Subsequently, both Nationwide and its
attorney
sought
to
secure cooperation in Nationwide's
investigation of the altercation. However, Sanford failed to
cooperate, and Nationwide was unable to obtain any information
from him. On March 29, 2002, Nationwide advised Sanford that
it would not defend or indemnify him for the claims brought
against him in Files's personal-injury action. Nationwide
advised Sanford that its decision was based, in part, upon his
failure to give it notice of the underlying occurrence "as
soon as practicable," as required by the conditions of the
liability coverage in his homeowner's policy.
1071288
3
Sanford never answered the complaint filed against him by
Files. On February 20, 2004, the trial court entered a
default judgment against Sanford in the amount of $75,000.
When Files sought to garnish his wages, Sanford filed for
bankruptcy protection. The bankruptcy court allowed Files to
seek to collect the judgment against Sanford only to the
extent of any available insurance proceeds.
Section 27-23-2, Ala. Code 1975, provides:
"Upon recovery of a final judgment against any
person,
firm,
or
corporation
by
any
person,
including administrators or executors, for loss or
damage on account of bodily injury, or death or for
loss or damage to property, if the defendant in such
action was insured against the loss or damage at the
time when the right of action arose, the judgment
creditor shall be entitled to have the insurance
money provided for in the contract of insurance
between the insurer and the defendant applied to the
satisfaction of the judgment, and if the judgment is
not satisfied within 30 days after the date when it
is entered, the judgment creditor may proceed
against the defendant and the insurer to reach and
apply the insurance money to the satisfaction of the
judgment."
On May 11, 2004, Files filed this action against Nationwide
seeking to apply the liability coverage in Sanford's
homeowner's policy to the satisfaction of the judgment against
1071288
Files died on January 14, 2005; his estate was
1
substituted as the plaintiff on May 5, 2005. See Rule
25(a)(1), Ala. R. Civ. P.
4
him. Nationwide answered the complaint, stating, in relevant
1
part, that it was not obligated to make any payment, because
Sanford, its insured, had failed to satisfy conditions
precedent to coverage under his policy. Ultimately, after a
trial at which ore tenus evidence was presented, the trial
court entered a judgment against Nationwide for $75,000, and
Nationwide timely appealed.
In Haston v. Transamerica Insurance Services, 662 So. 2d
1138, 1139-40 (Ala. 1995), this Court stated:
"A claim under §§ 27-23-1 and -2 [, Ala. Code
1975,] to apply the proceeds of a contract of
insurance to satisfy a judgment has been described
by this Court as follows:
"'Under Alabama law, the injured party
acquires a vested interest (secondary) in
the nature of a hypothecation of the
insured's rights under the policy.
"'....
"'Once an injured party has recovered
a judgment against the insured, the injured
party may compel the insurer to pay the
judgment. The injured party, however, can
bring an action against the insurer only
after he has recovered a judgment against
the insured and only if the insured was
covered against the loss or damage at the
1071288
5
time the injured party's right of action
arose against the insured tort-feasor.'
"Maness v. Alabama Farm Bureau Mut. Casualty Ins.
Co, 416 So. 2d 979, 981-82 (Ala. 1982). The injured
party's 'vested interest' is subject to the further
qualification that 'the terms of the policy imposing
obligations on the insured are effective as against
the injured party.' George v. Employers' Liab.
Assurance Corp., 219 Ala. 307, 310, 122 So. 175, 177
(1929); see James & Hackworth v. Continental
Casualty Co., 522 F. Supp. 785, 787 (N.D.Ala. 1980).
Thus, defenses to liability available to the insurer
in an action brought by the insured would also be
available to the insurer in an action brought
pursuant to §§ 27-23-1 and -2 by the injured party.
Employers Ins. Co. v. Crook, 276 Ala. 177, 183, 160
So. 2d 463, 469-70 (1964); Employers Ins. Co. v.
Johnston, 238 Ala. 26, 31, 189 So. 58, 62 (1939);
see Fleming v. Pan American Fire & Casualty Co., 495
F.2d 535, 541 (5th Cir. 1974); Southeastern Fire
Ins. Co. v. Helton, 192 F. Supp. 441, 444-45
(S.D.Ala. 1961)."
Consequently, if Sanford failed to comply with terms of the
policy imposing obligations on him -- his homeowner's policy
-- Files is not entitled to reach and apply the liability
coverage of that policy to the satisfaction of the judgment he
obtained against Sanford.
It is undisputed that the Nationwide policy required
Sanford to notify Nationwide of the altercation with Files "as
soon as practicable." This Court addressed identical policy
language in United States Fidelity & Guaranty Co. v. Baldwin
1071288
6
County Home Builders Ass'n, Inc., 770 So. 2d 72, 75 (Ala.
2000):
"If an 'occurrence' takes place, ... the policy
requires that the insured give USF&G notice 'as soon
as practicable.' This Court has held:
"'The requirement of notice "as soon
as practicable" means that the insured must
give notice "within a reasonable time under
all the circumstances." See American
Liberty Insurance Co. v. Soules, 288 Ala.
163, 258 So. 2d 872 (1972). In making this
determination, the only factors to be
considered are the length of the delay in
giving notice and the reasons therefor.
Absence of prejudice to the insurer from
the delay is not a factor to be considered.
Southern Guaranty Insurance Co. v. Thomas,
334 So. 2d 879 (Ala. 1976).'
[United States Fidelity & Guar. Co. v.] Bonitz
Insulation Co., 424 So. 2d [569,] 572 [(Ala. 1982)].
In Thomas, cited by this Court in Bonitz Insulation,
this Court stated:
"'Where facts are disputed or where
conflicting inferences may reasonably be
drawn from the evidence, the question of
the reasonableness of a delay in giving
notice is a question ... for the [trier of
fact]. Provident Life & Accident Ins. Co.
v. Heidelberg, 228 Ala. 682, 154 So. 809
([Ala.]
1934).
Conflicting
inferences
concerning the reasonableness of a delay
may sometimes be drawn where the insured
offers evidence of mitigating circum-
stances.
"'"However, where an insured
fails to show a reasonable excuse
1071288
7
or the existence of circumstances
which would justify a protracted
delay, the Court should as a
matter of law hold that there has
been a breach of the condition as
to notice...."
"'Zurick General Accident & Liability
Insurance Co. v. Harbil Restaurant, Inc.,
7 A.D.2d 433, 435, 184 N.Y.S. 2d 51, 53
(1959).'
"Thomas, 334 So. 2d 879, 882-83. Thus, the
determination of the fundamental issue, whether
notice of the occurrence or claim was given to the
insurer within a reasonable time, rests on the
reasonableness of the delay. ... If conflicting
inferences can be drawn from the evidence, the
question of reasonableness is submitted to the trier
of fact. If the facts are undisputed, however, and
the insured does not show justification for the
protracted delay, the court may find the delay
unreasonable as a matter of law. Thomas, 334 So. 2d
at 883: Bonitz Insulation, 424 So. 2d at 572-73."
Nationwide argues that Sanford, as a matter of law, failed to
give it notice of the altercation between him and Files within
a reasonable time. We agree.
The facts of this case are somewhat unusual, because it
is undisputed that Sanford has never notified Nationwide of
his altercation with Files. Thus, it could be argued that his
failure to give notice is a continuing violation of the notice
condition of his policy. However, as previously stated,
Nationwide learned of the incident five months after it
1071288
8
occurred. A few days later, Nationwide sent a letter to
Sanford advising him that it had been contacted by Files's
attorney. For the purposes of our review, we will assume,
without deciding, that Nationwide's actual notice of the
occurrence excused Sanford from any continuing duty to provide
the notice required of him by the policy.
A five-month delay in giving notice is sufficiently
protracted as to require the insured to offer evidence of a
reasonable excuse for the delay. See Phoenix Assurance Co. v.
Harris Harless Co., 303 F. Supp. 867 (N.D. Ala.), aff'd, 414
F.2d 794 (5th Cir. 1969)(four-month delay); Pharr v.
Continental Cas. Co., 429 So. 2d 1018 (Ala. 1983)(eight-month
delay); Southern Guar. Ins. Co. v. Thomas, 334 So. 2d 879
(Ala. 1976)(six-month delay). Sanford did not testify at
trial; thus, there is no evidence of any excuse or
justification for his failure to provide the requisite notice
as soon as practicable. In his brief, Files makes no attempt
to justify Sanford's failure.
For the foregoing reasons, we hold that, as a matter of
law, Sanford failed to comply with the notice requirement of
his homeowner's insurance policy. Therefore, as a matter of
1071288
Our
conclusion
concerning
the
notice
requirement
2
pretermits the need to address Nationwide's contentions that
Sanford violated the policy conditions in other ways.
9
law, Files is not entitled to reach and apply the liability
coverage of that policy to satisfy the judgment he obtained
against Sanford. Consequently, the trial court's judgment is
reversed, and a judgment is rendered for Nationwide.2
REVERSED AND JUDGMENT RENDERED.
See, Lyons, Stuart, Smith, Bolin, Parker, and Murdock,
JJ., concur.
Cobb, C.J., concurs in the result. | November 26, 2008 |
a2737567-3884-4d5d-8961-8df0aee81458 | Ex parte Susan Staats-Sidwell, Glen Archibald, and Shelby County Treatment Center, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Robert White and Jake Bivona v. Susan Staats-Sidwell et al.) | N/A | 1071602 | Alabama | Alabama Supreme Court | REL: 12/19/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071602
_________________________
Ex parte Susan Staats-Sidwell, Glen Archibald,
and Shelby County Treatment Center, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Robert White and Jake Bivona
v.
Susan Staats-Sidwell et al.)
(Jefferson Circuit Court, Bessemer Division, CV-04-280)
WOODALL, Justice.
Susan Staats-Sidwell, Glen Archibald, and Shelby County
Treatment Center, Inc. ("Shelby"), petition this Court for a
1071602
2
writ of mandamus directing the trial court to vacate the order
it entered on August 11, 2008, in the derivative action filed
against the petitioners by Robert White and Jake Bivona as
shareholders of Northwest Alabama Treatment Center, Inc.
("Northwest"). We deny the petition.
In their complaint, White and Bivona alleged that Staats-
Sidwell and Archibald had breached their duties as directors
of Northwest, by participating in the formation of Shelby, a
competing facility. In separate counts, they sought to
recover for violation of the corporate-opportunity doctrine,
breach of fiduciary duty, unjust enrichment at the expense of
Northwest, and violation of the Alabama Trade Secrets Act.
White and Bivona requested both compensatory and punitive
damages, as well as the imposition of a constructive trust in
order to prevent unjust enrichment.
On April 8, 2008, the trial court entered a partial
summary judgment in favor of White and Bivona. In pertinent
part, the trial court held that Staats-Sidwell and Archibald
are liable to Northwest for breach of fiduciary duty and for
breach of the corporate-opportunity doctrine. With regard to
those causes of action, White and Bivona were "given leave to
1071602
3
prove resulting damages at a later date." The partial summary
judgment did not address the unjust-enrichment claim or the
trade-secrets claim. However, it did contain the following
language regarding the imposition of a constructive trust:
"3. The Court hereby imposes a constructive
trust in favor of Northwest ... and against the
shares
of
Susan
Staats-Sidwell
and
Dr.
Glen
Archibald, in Shelby ..., which equal 30% of the
outstanding shares of each entity, to aid in the
recoupment of damages suffered by Northwest ... in
connection with the foregoing breaches of fiduciary
duty and of the Corporate Opportunity Doctrine by
Defendants, Sidwell and Archibald, with leave to
prove at a later date whether the other 70%
stockholder ownership of Shelby ... should also be
subject to a constructive trust."
On April 30, 2008, the petitioners filed a notice of appeal
from the partial summary judgment.
On May 2, 2008, the trial court entered an order
enlarging the constructive trust to include Staats-Sidwell's
and Archibald's shares in Northwest. The petitioners also
filed a notice of appeal from that order. On August 4, 2008,
this Court dismissed both appeals. The appeals were dismissed
because the trial court had not purported to certify either
order as a final judgment pursuant to Rule 54(b), Ala. R. Civ.
P., and, furthermore, because "it is well-established that a
claim for which damages are sought is insufficiently
1071602
4
adjudicated for Rule 54(b) purposes until the element of
damages is resolved ...." Dzwonkowski v. Sonitrol of Mobile,
Inc., 892 So. 2d 354, 362 (Ala. 2004).
On August 11, 2008, the trial court entered another
order, stating, in pertinent part:
"This Court has before it numerous motions and
responses from both Plaintiffs and Defendants. In
addition, Counsel for all parties were present at
the August 4, 2008 status conference when oral
arguments were entertained. In consideration of the
above, the Court issues the following decision.
"It is ordered that Plaintiffs, White and
Bivona, and their agents shall have access to the
Books and Records of Shelby. ... The items to be
made available to the Plaintiffs shall be those
items requested by Northwest ... in its April 23,
2008 letter to Mr. Frank Combs, President [of
Shelby].
"The Plaintiffs are instructed to advise the
Defendants in writing as to what day they intend to
begin their examinations. The Defendants have
assured this Court that they have no desire to
interfere with this process.
"It is Ordered that within ten (10) days
[Shelby] shall notify the Plaintiffs and this Court
in writing of a date for a [Shelby] shareholder
meeting to be held before NOON on August 29, 2008.
[Shelby] shall place on the meeting's agenda any
items from the Plaintiffs received by noon on the
date prior to the meeting.
"....
1071602
5
"Finally, this Court's Order of May 2, 2008,
directing dividends from Northwest to Defendants,
Sidwell and Archibald, to be paid to Earl N. Carter,
Clerk of the Circuit Court remains in full effect.
..."
(Emphasis added.) It is from this order that the petitioners
seek mandamus relief.
Petitioners seek relief from an order meant to resolve
"numerous motions." However, they have not furnished us with
a copy of any of the motions. Indeed, the petition never
mentions the motions. Consequently, the petitioners have
failed to heed the requirement of Ala. R. App. P. 21(a)(1)(E)
that "[c]opies of any ... parts of the record that would be
essential to an understanding of the matters set forth in the
petition" must be attached to the petition.
According to the order, it was entered after the trial
court had considered "numerous motions and responses," as well
as "oral arguments." Not only have the petitioners failed to
provide this Court with any information concerning the
motions, if any, but they have also failed to provide any
information concerning their responses to any motions or their
arguments in the trial court, whether written or oral. These
deficiencies are fatal to their petition, because, on mandamus
1071602
According to the order, the petitioners "assured" the
1
trial court "that they have no desire to interfere with the
[books-and-records review] process." Thus, it appears that
the petitioners' arguments before this Court may, at least in
part, be inconsistent with their position in the trial court.
6
review, "we look only to the factors actually argued before
the trial court." Ex parte Antonucci, 917 So. 2d 825, 830
(Ala. 2005)(citing Ex parte Ebbers, 871 So. 2d 776, 792 (Ala.
2003)). See also Ex parte Trawick, 959 So. 2d 51, 59 (Ala.
2006)(the Court will not review an argument raised for the
first time in a mandamus petition). For all that appears, the
petitioners made no arguments relating to the issues resolved
by the August 11 order.
1
For the foregoing reasons, the petition for the writ of
mandamus is denied.
PETITION DENIED.
Cobb, C.J., and See, Stuart, and Parker, JJ., concur. | December 19, 2008 |
57f449cb-ad4e-4d26-ad47-e1b533e0fe10 | Alabama Department of Conservation and Natural Resources et al. v. Exxon Mobil Corporation f/k/a Exxon Corporation | N/A | 1070716 | Alabama | Alabama Supreme Court | REL:12/12/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070716
____________________
Alabama Department of Conservation and Natural Resources et
al.
v.
Exxon Mobil Corporation f/k/a Exxon Corporation
Appeal from Montgomery Circuit Court
(CV-99-2368)
BOLIN, Justice.
This case has been before this Court on two prior
occasions. See Exxon Corp. v. State Dep't of Conservation &
Natural Res., 859 So. 2d 1096 (Ala. 2002), and Exxon Mobil
1070716
2
Corp. v. Alabama Dep't of Conversation & Natural Res., 986 So.
2d 1093 (Ala. 2007), for a detailed statement of the history
and factual background of the case.
In 1981 and again in 1984 Exxon Mobil Corporation,
formerly known as Exxon Corporation ("Exxon"), leased sites in
the Mobile Bay natural-gas fields from the State of Alabama.
In addition to paying $573.3 million in nonrefundable bonuses
to the State for the leases, Exxon agreed to pay royalties to
the State based on the production from the wells it drilled in
the leased areas of Mobile Bay. Following audits of the
leaseholds by the Alabama Department of Conservation and
Natural Resources ("DCNR"), the State agency responsible for
overseeing the leases, a disagreement arose between the State
and Exxon regarding the manner in which Exxon was calculating
the royalties payable to the State under the leases. In a
letter to Exxon dated February 4, 1997, DCNR stated that Exxon
had paid to the State $102,915,386 in royalties for the period
beginning October 1, 1993, through December 31, 1995, and
that, according to DCNR's calculations, Exxon owed the State
an additional $50,495,418 in royalties. Exxon and DCNR
continued to negotiate the correct interpretation of the
1070716
3
royalty provisions of the leases, but no mutually agreeable
settlement was reached.
On July 28, 1999, Exxon sued the State, seeking a
judgment declaring the proper method of calculating royalties
under the lease form pursuant to which Exxon leased the sites
in Mobile Bay. The State asserted a counterclaim against
Exxon, alleging breach of contract and fraud and claiming that
Exxon had fraudulently underpaid royalties on the leases from
October 1, 1993, the date production from the leased fields
began. The State amended its counterclaim to assert a claim
for punitive damages. Subsequently, the trial court realigned
the parties naming the State as the plaintiff and Exxon as the
defendant, and the case proceeded to trial.
On December 19, 2000, the jury returned a verdict for the
State and awarded it $60,194,174 in additional royalties for
the period between October 1, 1993, through December 1999,
plus interest of $27,498,521, calculated at the statutory rate
of 12%. On December 20, 2002, this Court reversed the
judgment and remanded the case, holding that the trial court
had impermissibly admitted into evidence a confidential letter
1070716
The jury verdict form incorporated into the judgment
1
showed a total of $63,592,647 in additional royalties; the sum
of the individual awards, however, equals $63,769,568. The
$11,902,827,801 figure reflects the $63,592,647 amount and not
the sum of the compensatory awards. See Exxon Mobil Corp.,
986 So. 2d at 1099 n. 4 and 1102 n. 5.
4
written by Exxon's in-house counsel. See Exxon Corp., 859
So. 2d at 1108.
Following a trial after that remand, the jury returned a
verdict in favor of the State and awarded it $63,769,568 in
additional royalties for the period from October 1993 through
December 2002. The jury found that, of that amount,
$23,449,186 was the result of Exxon's fraudulent suppression
of information relating to royalty payments through February
1997. The jury also awarded the State $11.8 billion in
punitive damages. Pursuant to § 9-17-33(d), Ala. Code 1975,
the trial court, on November 19, 2003, added to the
compensatory-damages award an additional $39,235,154, which
represented statutory interest in the amount of 12%. The
trial court entered a final judgment in favor of the State on
that
same
date
for
the
full
verdict
amount
of
$11,902,827,801.1
On December 1, 2003, Exxon moved the trial court for a
hearing to obtain guidance on how to compute future royalty
1070716
Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986);
2
Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala. 1989).
5
payments, based on the jury's verdict. On December 5, 2003,
the trial court entered an order denying Exxon's request for
a hearing and directing Exxon to pay the royalties "according
to the plain, unambiguous language of the leases as reflected
in the jury's verdict." Exxon also moved the trial court for
a postverdict judgment as a matter of law or, alternatively,
for a new trial or a remittitur. Following a Hammond/Green
Oil hearing, the trial court entered an order reducing the
2
punitive-damages award to $3.5 billion and denying the motion
for a judgment as a matter of law or a new trial.
The jury's verdict for each of the claims asserted by the
State was as follows:
1. Royalty due for unpaid volumes of gas: $15,570,921;
2. Royalty due for improper royalty rates: $12,075,343;
3. Royalty due on deductions taken: $28,112,819;
4. Royalty due on value of cogenerated electricity:
$2,953,043;
5. Royalty due on sulfur production: $4,379,048; and
6. Royalty due on condensate: $678,394.
1070716
6
As mentioned above, of the $63,769,568 in additional royalties
awarded the State by the jury, the jury, by completing a blank
on the verdict form, attributed $23,449,186 to fraud.
On appeal, this Court reversed the $15,570,921 judgment
awarding the State royalties due for unpaid volumes of gas in
the amount of $6,804,492; reversed the judgment awarding the
State $4,379,048 in royalties due on sulfur production; and
reversed the judgment awarding the State $678,394 in royalties
due on the condensate oil. Additionally, this Court concluded
that the State had failed to establish its fraud claim as a
matter of law, and it reversed the judgment in favor of the
State on the fraud claim. This Court stated:
"In conclusion, we affirm the judgment entered
on the $63,769,568 jury verdict for compensatory
damages on the contractual issues only in the
principal amount of $51,907,634. In all other
respects, we reverse the judgment as to compensatory
damages. We remand the cause for the trial court to
enter a judgment in favor of the State and against
Exxon on the breach-of-contract claims and to award
compensatory damages, with interest, in an amount
consistent with this opinion.
"No fraud was proven under Alabama law, and the
verdict and punitive damages awarded on the fraud
claim should have been precluded by the trial
court's entry of a [judgment as a matter of law] for
Exxon on this claim. Accordingly, we reverse the
judgment in favor of the State on the fraud claim,
and we instruct the trial court on remand to enter
1070716
This
$31,907,638
constitutes
the
$51,907,638
in
principal
3
amount affirmed by this Court in its decision of November 1,
2007, less a $20,000,000 payment previously made to the State
by Exxon.
Exxon agreed that postjudgment interest pursuant to § 8-
4
8-10, Ala. Code 1975, should accrue on the $26,255,150 in
interest owed pursuant to § 9-17-33(d).
7
a judgment in favor of Exxon on the State's fraud
claim."
Exxon Mobil Corp., 986 So. 2d at 1118.
In order to facilitate this Court's mandate that a final
judgment be entered in favor of the State on the contractual
issues and that compensatory damages be awarded, with
interest, the parties on remand agreed to the following:
1. That Exxon owed the State $31,907,638 in unpaid
3
royalties for the production months October 1993 through
December 2002, which were encompassed in the trial court's
judgment of November 19, 2003;
2. That Exxon owed the State $26,255,150 in interest
pursuant to § 9-17-33(d), Ala. Code 1975, for the unpaid
royalties due from October 1993 through the judgment date of
November 19, 2003;
3. That Exxon owed the State $29,373,080 in postjudgment
4
interest pursuant to § 8-8-10, Ala. Code 1975, on the
1070716
For purposes of accurately calculating interest in this
5
case, the parties and the trial court chose January 31, 2008,
as the "date certain" for the entry of judgment and
satisfaction of that judgment.
8
$31,907,638 of unpaid royalties and $26,255,150 of interest
pursuant to § 9-17-33(d), from November 19, 2003, through
January 31, 2008;
5
4. That Exxon owed the State $26,266,395 in additional
royalties for the production months January 2003 (the first
month in which a royalty payment came due following this
Court's December 2002 decision) through August 2007 (the last
month for which a royalty payment came due before this Court's
November 2007 decision) that were not encompassed in the trial
court's judgment of November 19, 2003, but were subject to the
trial court's declaratory judgment of December 5, 2003, which
stated that Exxon was to pay future royalties "according to
the plain and unambiguous language of the leases as reflected
by the jury's verdict";
5. That Exxon owed the State $7,708,968 of interest
pursuant to § 9-17-33(d), Ala. Code 1975, on the $26,266,395
of additional royalties from January 2003 through January 31,
2008 (the "date certain" on which Exxon paid the judgment).
1070716
9
However, two significant points of disagreement arose
between the parties regarding the interest owed the State by
Exxon. In addition to the $29,373,080 in postjudgment
interest the State was entitled to for the period November 19,
2003, through January 31, 2008, the State claimed that Exxon
owed, pursuant to § 9-17-33(d), an additional $16,113,836 in
interest on the judgment amount of $31,907,638 –- the
$51,906,631 principal amount affirmed by this Court less a
$20,000,000 payment -- for that same period. The State argued
that because the amount of $31,907,638 owed by Exxon was not
paid until January 31, 2008, the State was entitled, pursuant
to § 9-17-33(d), to interest on that amount from November 19,
2003, until January 31, 2008, the date it was paid. In other
words, the State claims that interest pursuant to § 9-17-33(d)
should run concurrently with the postjudgment interest
pursuant to § 8-8-10 from November 19, 2003, through January
31, 2008.
Second, in addition to the $7,708,968 in interest on the
additional royalty amount of $26,266,395 the State was
entitled to pursuant to § 9-17-33(d) from January 2003 through
January 31, 2008, the State claimed that Exxon owed, pursuant
1070716
10
to § 8-8-10, an additional $6,898,725 in postjudgment interest
on the additional royalty amount of $26,266,395 from December
5, 2003, until Exxon satisfied the judgment on January 31,
2008. The State argued that the trial court's declaratory
judgment of December 5, 2003, which ordered Exxon to pay
future royalty payments "according to the plain, unambiguous
language of the leases as reflected in the jury's verdict" had
the effect of incorporating into that judgment each monthly
royalty payment as it came due. Thus, the State argued that
it is entitled to postjudgment interest pursuant to § 8-8-10
from the date of the declaratory judgment on December 5, 2003,
until the judgment was satisfied by Exxon on January 31, 2008.
In other words, the State claims that postjudgment interest
pursuant to § 8-8-10 should run concurrently with interest
pursuant to § 9-17-33(d), from December 5, 2003, the date of
the declaratory judgment, through January 31, 2008, the date
the judgment was paid.
Exxon argued in opposition that to allow interest under
§§ 9-17-33(d) and 8-8-10 to run concurrently, as the State
urges, would result in its paying interest at a doubled rate
of 24%. Exxon argued that Alabama law does not permit a party
1070716
11
to collect both prejudgment and postjudgment interest because
that would constitute compound interest, which is prohibited.
Following a hearing, the trial court, on January 31,
2008, entered a judgment in favor of the State and against
Exxon for the amounts agreed to by the parties as set out
above. However, the trial court denied the State's claim for
interest in the amount of $16,113,836 pursuant to § 9-17-33(d)
for the period November 19, 2003, through January 31, 2008,
and it further denied the State's claim for postjudgment
interest in the amount of $6,898,725 pursuant to § 8-8-10 for
the period December 5, 2003, through January 31, 2008. On
January 31, 2008, Exxon paid to the State $121,511,231 in
satisfaction of the judgment entered against it. On that same
date, the State filed with the trial court a notice of partial
satisfaction of the judgment and expressly reserved its right
to appeal the trial court's denial of its claim for additional
interest under §§ 9-17-33(d) and 8-8-10. The State filed its
timely notice of appeal on February 21, 2008.
Standard of Review
Because this appeal involves only questions of law
relating to the applicability of §§ 9-17-33(d) and 8-8-10,
1070716
12
Ala. Code 1975, our review is de novo. Alabama Dep't of
Transp. v. Williams, 984 So. 2d 1092 (Ala. 2007).
Discussion
I. Interest under § 9-17-33(d) from November 19, 2003,
through January 31, 2008
The parties agreed that Exxon owed the State $29,373,080
in postjudgment interest pursuant to § 8-8-10, from November
19, 2003, the date that the trial court entered a judgment on
the jury's verdict, through January 31, 2008, the date Exxon
paid the judgment. However, the State contends on appeal that
Exxon owes an additional $16,113,836 in interest pursuant to
§ 9-17-33(d) on the remitted judgment amount of $31,907,638
from November 19, 2003, through January 31, 2008. The State
argues that interest under § 9-17-33(d) is in the nature of a
penalty and that because the judgment amount of $31,907,638
remained unpaid until January 31, 2008, it is entitled to
interest under § 9-17-33(d) for each month the judgment
remained unpaid from November 19, 2003, through January 31,
2008.
Exxon argues that the interest imposed under § 9-17-33(d)
is prejudgment interest, which no longer accrued once the
trial court entered its judgment on November 19, 2003, that
1070716
13
adjudicated and fixed Exxon's liability on unpaid royalties
from October 1993 through December 2002. Rather, Exxon
contends that postjudgment interest pursuant to § 8-8-10 began
to run on November 19, 2003, and accrued from that date until
the judgment was paid on January 31, 2008.
Section 9-17-33(d), Ala. Code 1975, provides:
"(d) Any first purchaser of production or
operator and/or owner of the right to drill
substituted for the first commercial purchaser as
provided herein, that violates this section shall be
liable to the persons legally entitled to the
proceeds from production for the unpaid amount of
the proceeds plus interest at the rate of 12 per
cent per annum, the interest accruing from the date
at which the proceeds were due as specified herein."
Nothing in the text of § 9-17-33(d) expressly indicates that
that section is penal in nature. However, the title of the
bill that enacted § 9-17-33(d) states that the bill is "[t]o
provide for and prescribe time limits in which proceeds
derived from the sale of oil and gas production shall be paid
to the person or persons legally entitled thereto and to
further prescribe interest penalties for failure to meet the
said limits." Act No. 82-557, Ala. Acts 1982. Although § 9-
17-33 was amended in 1991, subsection (d) remained unchanged.
1070716
14
The title of the bill amending § 9-17-33 in 1991 states that
the bill is
"[a]n Act, to amend Section 9-17-33 of the Code of
Alabama
1975,
as
amended,
relating
to
the
disposition of proceeds or royalties from the sale
of oil or gas production, penalties for violations
and judicial jurisdiction, so as to further provide
therefor and for payment information requirements to
interest owners; to provide for definitions for the
section and exceptions; and to provide an effective
date."
Act No. 91-681, Ala. Acts 1991. Section 9-17-33 was again
amended in 1999. See Act No. 99-396, Ala. Acts 1999.
Although the text of § 9-17-33(d) remained unchanged by this
most recent amendment, the term "penalty" was omitted from the
title of the bill amending § 9-17-33.
In interpreting § 9-17-33(d), it is appropriate for this
Court to look to other jurisdictions that have interpreted
similarly worded statutes. Cagle v. City of Gadsden, 495 So.
2d 1141 (Ala. 1986). Both parties cite this Court to the
Oklahoma Supreme Court's decision in Fleet v. Sanguine, Ltd.,
854 P.2d 892 (Okla. 1993). At issue in Fleet was Okla. Stat.,
tit. 52, § 540(b) (1981), which provided the following:
"'Any said first purchasers or owner of the right to
drill
and
produce
substituted
for
the
first
purchaser as provided herein that violates this act
[52 O.S.1981 § 540] shall be liable to the persons
1070716
Section 540(b) was subsequently amended to remove the
6
"penalty" language from its text and was recodified at Okla.
Stat., tit.52, § 570.10D.1 (Supp. 1992), which provides, in
part, that royalties "not timely paid shall earn interest at
the rate of twelve percent (12%) per annum to be compounded
annually, calculated from the end of the month in which such
production is sold until the day paid." Unlike the current
version of § 9-17-33(d), the amended version of § 540(b) (now
§ 570.10D.1) expressly provides that interest on unpaid
royalties is calculated from the date due until the date paid.
The Oklahoma courts no longer refer to § 570.10D.1 as a
"penalty" provision. Purcell v. Santa Fe Minerals, Inc., 961
P.2d 188 (Okla. 1998).
15
legally entitled to the proceeds from production for
the unpaid amount of such proceeds with interest
thereon at the rate of twelve percent (12%) per
annum, as the penalty.'"
854 P.2d at 897 n. 14 (emphasis added). The language then
contained in § 540(b) is virtually identical to the language
contained in § 9-17-33(d), except that § 540(b) expressly
referred to providing for interest on unpaid royalties "as a
penalty." The court in Fleet characterized § 540(b) as a
6
penalty
provision
that,
nevertheless,
provided
for
"prejudgment interest" at a rate of 12%. Fleet, 854 P.2d at
895. We find the Fleet court's treatment of the language in
§ 540(b) to be persuasive in our treatment of the nearly
identical language in § 9-17-33(d) and conclude that § 9-17-
1070716
The dissent states that the author is "constrained to
7
interpret [§ 9-17-33(d)] based upon what it says" and that
"'[i]n the past, this Court operated under a duty to adhere to
legal precedent without regard to the outcome of the case
....'" (quoting Edwards v. Kia Motors of America, [Ms.
1061167, May 16, 2008] ___ So. 2d ___, ___ (Ala. 2008)(Cobb,
C.J., dissenting)). The dissent seemingly ignores the well
established rule of statutory construction that permits this
Court to look to other jurisdictions that have interpreted
similarly worded statutes. The dissent further ignores Fleet
–- which is the only real "legal precedent" presented –- in
which the Oklahoma Supreme Court construed a statute worded
almost identically as § 9-17-33(d) to provide for prejudgment
interest.
16
33(d), which is penal in nature, nevertheless provides for
prejudgment interest on the unpaid royalties.
7
"Prejudgment interest runs until the date of the
judgment; postjudgment interest runs thereafter." State v.
Marble City Plaza, Inc., 989 So. 2d 1059, 1060 n. 4 (Ala. Civ.
App. 2006), aff'd, 989 So. 2d 1065 (Ala. 2007). Because we
have concluded that the interest on unpaid royalties payable
pursuant to § 9-17-33(d) is prejudgment interest, the State is
entitled to interest under § 9-17-33(d) up to November 19,
2003, the date on which the trial court entered its judgment,
at which point interest imposed pursuant to § 9-17-33(d)
ceased to accrue.
This holding is further supported by analogous precedent
set forth in Burgess Mining & Construction Corp. v. Lees, 440
1070716
17
So. 2d 321 (Ala. 1983). Section 8-8-8, Ala. Code 1975, sets
forth the time from which interest accrues upon a breach of
contract: "All contracts, express or implied, for the payment
of money ... bear interest from the day such money ... should
have been paid." This section, however, fails to designate
when this interest ceases to accrue.
Burgess, however, considered the relationship between §
§ 8-8-1 (entitled "Maximum rates of interest - Generally") and
8-8-10 (entitled "Interest on money judgments and costs," as
amended after the plaintiff's cause of action in Burgess
accrued but before the circuit court's entry of a final
judgment). This Court stated in Burgess:
"The consideration of the applicable rate of
interest in this case warrants a discussion of the
appropriate interest rate for prejudgment as opposed
to postjudgment interest.
"Section 8-8-1 states:
"'Except as otherwise provided by law,
the maximum rate of interest upon the loan
or forebearance of money, goods or things
in action, except by written contract is
$6.00 upon $100.00 for one year, and the
rate of interest by written contract is not
to exceed $8.00 upon $100.00 for one year
and at that rate for a greater or less sum
or for a longer or shorter time.'
1070716
18
"The legislature 'otherwise provided by law'
that postjudgment interest, where no other rate is
established by contract, should be 12% per annum.
As amended, § 8-8-10 reads in relevant part:
"'Judgments for the payment of money,
other than costs, if based upon a contract
action, bear interest from the day of the
cause of action, at the same rate of
interest as stated in said contract; all
other judgments shall bear interest at the
rate of twelve (12) percent per annum, the
provisions of Section 8-8-1 of the Code of
Alabama
1975
to
the
contrary
notwithstanding; ...' (Emphasis added).
"The legislature chose not to amend, but rather left
unchanged, § 8-8-1, upon enactment and subsequent
amendment of § 8-8-10.
"Utilizing the general rules of statutory
construction, we cannot read § 8-8-10, as amended,
as providing for 12% prejudgment interest. No
statute
'otherwise
provide[s]'
for
prejudgment
interest at any other rate than the legal rate.
Consequently, the Court holds that where, as in this
case, no written contract controls the interest
rate, thereby precluding the 8% rate of 8-8-1, the
legal rate of prejudgment interest is 6% per annum.
See Southern Security Services, Inc. v. Esneault,
435 So. 2d 1309 (Ala. Civ. App. 1983).
"In this case, Lees is entitled to prejudgment
interest of 6% from October 26, 1977, until the
judgments were entered on September 15, 1982, and
postjudgment interest of 12% thereafter."
440 So. 2d at 337-38.
In this case, the legislature also "otherwise provided by
law" when it enacted § 9-17-33(d), Ala. Code 1975, providing
1070716
19
for "12 percent per annum" interest on the unpaid amount of
proceeds from the sale of oil or gas production. Neither §
9-17-33(d) nor §§ 8-8-1 and 8-8-8 provide for a specific end
date upon which the interest allowed under these sections
should cease, whether by payment or by final judgment.
However, Burgess makes clear the difference between the
applicable prejudgment-interest statute and the postjudgment-
interest statute involved there, providing that interest as
allowed by a statute (§ 8-8-1), which is similar to §
9-17-33(d) in that neither has a stated end date, is
prejudgment interest, and that postjudgment interest per §
8-8-10 continues alone after a final judgment is entered.
II. Interest under § 8-8-10 from December 5, 2003,
through January 31, 2008
The parties agreed that the State was entitled to
$7,708,968 in interest pursuant to § 9-17-33(d) on the
additional royalty amount of $26,266,395 from January 2003
through January 31, 2008. However, the State argues on appeal
that under § 8-8-10 Exxon owes an additional $6,898,725 in
postjudgment interest on the additional royalty amount of
$26,266,395 from December 5, 2003, until Exxon satisfied the
judgment on January 31, 2008. The State contends that the
1070716
20
trial court's declaratory judgment of December 5, 2003, which
ordered Exxon to calculate future royalty payments "according
to the plain, unambiguous language of the leases as reflected
by the jury's verdict" had the effect of incorporating into
that judgment each monthly royalty payment as it came due.
Thus, the State argues that it is entitled to postjudgment
interest pursuant to § 8-8-10 from the date of the declaratory
judgment on December 5, 2003, until Exxon satisfied the
judgment on January 31, 2008.
Section § 8-8-10, Ala. Code 1975, entitled "Interest on
money judgments and costs," provides as follows:
"Judgments for the payment of money, other than
costs, if based upon a contract action, bear
interest from the day of the cause of action, at the
same rate of interest as stated in said contract;
all other judgments shall bear interest at the rate
of 12 percent per annum, the provisions of Section
8-8-1 to the contrary notwithstanding; provided,
that
fees
allowed
a
trustee,
executor,
administrator, or attorney and taxed as a part of
the cost of the proceeding shall bear interest at a
like rate from the day of entry."
"Section 8-8-10 authorizes the payment of post-judgment
interest as compensation for the loss of use of money as a
result of the nonpayment of a liquidated sum for which
liability has already been determined." Elmore County Comm'n
1070716
21
v. Ragona, 561 So. 2d 1092, 1093 (Ala. 1990). Further,
"'[p]ost-judgment interest is not a punishment inflicted on a
judgment debtor for exercising the right to appeal. Instead,
like pre-judgment interest, post-judgment interest is simply
compensation for a judgment creditor's lost opportunity to
invest the money awarded as damages at trial.'" Birmingham
Pain Ctr., Inc. v. Cosgrove, 896 So. 2d 538, 543 (Ala. Civ.
App. 2004) (quoting Miga v. Jenson, 96 S.W.3d 207, 212 (Tex.
2002)).
Section 8-8-10 applies only when the judgment is one for
the payment of money, i.e., a "money judgment." See Bank
Independent v. Coats, 621 So. 2d 951 (Ala. 1993) (holding that
judgment following jury's verdict declaring there was no
fraudulent conveyance was not a money judgment entitling wife
to 12% postjudgment interest). Following the entry of
judgment on the jury's verdict in this case, Exxon sought
guidance from the trial court on how to apply the jury's
verdict to future royalty-payment computations. On December
5, 2003, the trial court entered an order directing Exxon to
pay future royalties "according to the plain, unambiguous
language of the leases as reflected in the jury's verdict."
1070716
22
This judgment did not constitute a money judgment for purposes
of § 8-8-10. It did not adjudicate or fix an amount of future
royalties owed the State by Exxon. Rather, the judgment
simply informed Exxon that it was to compute future royalties
according to the leases as interpreted by the jury.
Accordingly, because the trial court's December 5, 2003,
judgment did not constitute a money judgment, the State is not
entitled to postjudgment interest pursuant to § 8-8-10 from
the period December 5, 2003, through January 31, 2008.
Conclusion
We conclude that the State is not entitled to the
requested interest pursuant to §§ 9-17-33(d) and 8-8-10, and
we affirm the trial court's judgment.
AFFIRMED.
See, Lyons, Woodall, Stuart, Smith, Parker, and Murdock,
JJ., concur.
Cobb, C.J., concurs in part and dissents in part.
1070716
23
COBB, Chief Justice (concurring in part and dissenting in
part).
I respectfully dissent from Part I of the opinion,
interpreting § 9-17-33(d), Ala. Code 1975. That Code section
states:
"Any first purchaser of production or operator
and/or owner of the right to drill substituted for
the first commercial purchaser as provided herein,
that violates this section shall be liable to the
persons legally entitled to the proceeds from
production for the unpaid amount of the proceeds
plus interest at the rate of 12 percent per annum,
the interest accruing from the date at which the
proceeds were due as specified herein."
Even though the majority acknowledges that § 9-17-33(d) is
penal in nature as noted by the 1991 amendment, and even
though the plain language of this statute does not limit the
interest charged to "prejudgment" interest, the majority
nonetheless concludes that language limiting the extent of the
penalty to prejudgment interest is contained in the statute.
I am constrained to interpret this statute based upon
what it says. As I have said before in an analogous context:
"In the past, this Court operated under a duty
to adhere to legal precedent without regard to the
outcome of the case, and it consistently concluded
that the plain language of a statute required that
this Court apply it as stated. The rule was
generally stated as follows:
1070716
24
"'"When [a] statutory pronouncement is
clear and not susceptible to a different
interpretation,
it
is
the
paramount
judicial duty of a court to abide by that
clear pronouncement."'
"Macon v. Huntsville Utils., 613 So. 2d 318, 320
(Ala. 1992) (quoting Parker v. Hilliard, 567 So. 2d
1243, 1346 (Ala. 1990)). This rule has found
application even in the recent past. See, e.g.,
Bright v. Calhoun, 988 So. 2d 492, 498 (Ala. 2008)
(quoting City of Bessemer v. McClain, 957 So. 2d
1061, 1074 (Ala. 2006) ('"To discern the legislative
intent [for purposes of statutory construction], the
Court must first look to the language of the
statute. If, giving the statutory language its
plain and ordinary meaning, we conclude that the
language is unambiguous, there is no room for
judicial construction."')); Boutwell v. State, 988
So. 2d 1015, 1020 (Ala. 2007) ('"[P]rinciples of
statutory
construction instruct this Court to
interpret the plain language of [the] statute to
mean exactly what it says and to engage in judicial
construction only if the language in the statute is
ambiguous." Ex parte Pratt, 815 So. 2d 532, 535
(Ala. 2001).'); Cleburne County Comm'n v. Norton,
979 So. 2d 766, 773 (Ala. 2007)('"'"Words used in a
statute
must
be
given
their
natural,
plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret
that language to mean exactly what it says. If the
language of the statute is unambiguous, then there
is no room for judicial construction and the clearly
expressed intent of the legislature must be given
effect."'"' (quoting Tolar Constr., LLC v. Kean
Elec. Co., 944 So. 2d 138, 149 (Ala. 2006), quoting
in turn Blue Cross & Blue Shield v. Nielsen, 714 So.
2d 293, 296 (Ala. 1998), quoting in turn ICED Corp.
v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346
(Ala. 1992))). I believe that the majority opinion
flies in the face of this precedent and the many
other cases that have espoused the principle that
1070716
25
this Court's paramount duty is to apply the plainly
expressed language of the law to mean what it says."
Edwards v. Kia Motors of America, [Ms. 1061167, May 16, 2008]
___ So. 2d at ___, ___ (Ala. 2008)(Cobb, C.J., dissenting).
Because § 9-17-33(d) imposes interest "from the date at which
the proceeds were due," without reference to the date of a
particular judgment, I would construe it accordingly, rather
than substitute the Court's judgment for that of the
legislature. I must therefore dissent as to this part of the
opinion. In all other respects, I concur with the opinion. | December 12, 2008 |
92c0ebba-5d69-4c38-9313-8cc8b666b94d | Simpson v. Glenn | 88 So. 2d 326 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 326 (1956)
Mildred SIMPSON
v.
Carey E. GLENN, Adm'r.
6 Div. 885.
Supreme Court of Alabama.
February 2, 1956.
Rehearing Denied June 21, 1956.
*327 Jackson, Rives, Pettus & Peterson, Birmingham, for appellant.
Hare, Wynn & Newell, Birmingham, for appellee.
SIMPSON, Justice.
This is an appeal from a judgment granting plaintiff's motion for a new trial in a wrongful death action in which the jury found for the defendant (appellant). The basis of the trial judge's decision as shown by the judgment was the claimed error in giving defendant's written Charge Z, to wit:
Plaintiff's intestate was run down by the automobile of the defendant while attempting to cross 12th Street at the place stated in the charge in the city of Birmingham in the nighttime. This conduct of the plaintiff's intestate was in violation of Sec. 1292 (a) of the General City Code of Birmingham of 1944, which reads as follows:
It thus appears that Charge Z which was given for the defendant was founded upon a violation by the plaintiff's intestate of the aforesaid traffic ordinance. After a careful study we have reached the conclusion that the charge stated a correct legal principle. The holding in the better reasoned Alabama cases is that the violation of a traffic ordinance or rule of the road constitutes negligence per se and a person proximately injured thereby may recover for such injuries against the violator of the law if suing and if the plaintiff is guilty of such conduct which proximately contributes to his injuries that constitutes a defense of contributory negligence to a simple negligence charge. Winfrey v. Witherspoon's, Inc., 260 Ala. 371, 71 So. 2d 37; Triplett v. Daniel, 255 Ala. 566, 52 So. 2d 184; McBride v. Baggett Transportation Co., 250 Ala. 488, 35 So. 2d 101; McGough Bakeries Corporation v. Reynolds, 250 Ala. 592(6), 35 So. 2d 332; Cosby v. Flowers, 249 Ala. 227, 30 So. 2d 694; Clift v. Donegan, 237 Ala. 304, 186 So. 476; Greer v. Marriott, 27 Ala.App. 108, 167 So. 597, certiorari denied 232 Ala. 194, 167 So. 599; Newell Contracting Co. v. Berry, 223 Ala. 111, 134 So. 868; Smith v. Baggett, 218 Ala. 227, 118 So. 283; City Ice Delivery Co. v. Lecari, 210 Ala. 629, 98 So. 901; Reynolds v. Woodward Iron Co., 199 Ala. 231, 74 So. 360; Watts v. Montgomery Traction Co., 175 Ala. 102, 57 So. 471; Kansas City, M. & B. R. Co. v. Flippo, 138 Ala. 487, 35 So. 457. Many other cases of like import could be cited.
There, of course, can be no sound distinction between the rule with respect to violation of a statute and a municipal traffic ordinance. As stated in 65 C.J.S., Negligence, § 19(b), p. 420:
Our court has not attempted to rationalize any sound distinction as indicated from the above cited cases, some of which involve the violation of a statute and others the infraction of a traffic ordinance.
The trial court in granting the motion for a new trial was influenced by Alabama By-Products Corporation v. Rutherford, 239 Ala. 413, 195 So. 210, and Salter v. Carlisle, 206 Ala. 163, 90 So. 283 (both cases involving violation of traffic ordinances). The decision of the learned judge may be said to be supported by these two cases, but in our opinion they and some others of somewhat similar import are unsound in holding that a person violating such an ordinance was not guilty of negligence as a matter of law seemingly because the ordinance was "a mere traffic regulation." The two last cited cases are predicated upon the erroneous conclusion that Ivy v. Marx, 205 Ala. 60, 87 So. 813, 814, 14 A.L.R. 1173, was authority for the holding. A careful reading of the Marx case will disclose that the single question decided was that an ordinance punishing by fine or imprisonment a pedestrian who crosses a street diagonally at a street intersection does not relieve the driver of an automobile of his duty to keep a lookout for a pedestrian who so crosses, the holding being that a charge which sought to relieve the automobile driver of such a duty was erroneous. Indeed, the opinion in the Marx case took note of the fact that the trial court instructed the jury that "if the plaintiff was violating said ordinance, and such violation was the proximate cause of injury, then he would be guilty of contributory negligence, and could not recover."
In our study of the instant case we find some cases which hold to the effect that the violation of a traffic ordinance is not pleadable as negligence where the city is sued for the reason that the ordinance was not passed for the benefit of the city. See City of Birmingham v. Blood, 228 Ala. 218, 153 So. 430. Of similar import is Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 633, with reference to the driver's license law. These cases, we view as sound in so holding. But a traffic regulation, statutory or by municipal ordinance, is passed for the benefit of a particular class of people who use the public streets and highways for travel and to conserve safety in such travel and a violation of the same by a party to the cause if proximately contributing to the accident is pleadable against him as negligence.
Other cases such as Newman v. Lee, 222 Ala. 499, 133 So. 10, and Cooper v. Agee, 222 Ala. 334, 132 So. 173, hold to the effect that not only is it a question for the jury to decide whether the violation of the statute or ordinance proximately contributed to the accident or injury, but also it is a question for the jury to determine whether or not the law was passed for the benefit of the party pleading it or the class to which he belongs. It seems to us that such cases which hold the latter question to be for the jury violate the principle that a question of law is for the court and not for the jury.
We are therefore at the conclusion that the cases cited first hereinabove correctly exposit the rule of law under consideration and that other cases which run contrary to that strong current of opinion are unsound and must be overruled.
It results therefore that there was error in granting the new trial for giving Charge Z.
Though the trial court granted the motion upon the specific ground discussed hereinabove, this court nevertheless will affirm the judgment granting the new trial if the motion contains any good ground. Sullivan v. Alabama Power Co., 246 Ala. 262, 20 So. 2d 224; Louisville & N. R. Co. v. Scott, 232 Ala. 284, 167 So. 572; First Nat. Bank *329 of Birmingham v. Searcy, 31 Ala.App. 553, 19 So. 2d 559. Consistent with this rule, we have carefully considered the other grounds in the motion for a new trial and like the trial court, have come to the conclusion that they are not well taken.
It results, therefore, that the judgment of the trial court granting the new trial is reversed, the judgment setting aside the original judgment is vacated, the original judgment is reinstated, and the cause is remanded. Cook v. Sheffield Co., 206 Ala. 625, 91 So. 473.
Reversed and remanded.
All Justices concur. | February 2, 1956 |
ca0e437b-3bf1-4d1a-b747-1be6587413cb | Ex parte Charles Philon. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Chadwick Timber Company v. Charles Philon) | N/A | 1061210 | Alabama | Alabama Supreme Court | REL: 12/19/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061210
____________________
Ex parte Charles Philon
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Chadwick Timber Company
v.
Charles Philon)
(Choctaw Circuit Court, CV-02-78;
Court of Civil Appeals, 2050697)
PER CURIAM.
The petition for the writ of certiorari is denied.
1061210
2
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280
So. 2d 155 (1973).
WRIT DENIED.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur.
Murdock, J., concurs specially.
1061210
3
MURDOCK, Justice (concurring specially).
The Court in this case denies the petition for the writ
of certiorari, but in so doing explains that it "does not wish
to be understood as approving all the language, reasons, or
statements of law in the Court of Civil Appeals' opinion."
___ So. 2d at ___. I concur in the order denying the
petition. The purpose of this separate writing is to explain
my reasons for "not wish[ing] to be understood as approving
all the language, reasons, or statements of law in the Court
of Civil Appeals' opinion."
I. Background Facts and Procedural History
Charles Philon sued his employer, Chadwick Timber Company
("Chadwick"), seeking worker's compensation benefits for an
alleged permanent total disability arising from injuries to
his left leg and his back. Philon worked as a "chainsaw hand"
for Chadwick. On March 8, 2001, Philon was injured in an on-
the-job accident when a tree he was cutting snapped back and
broke his left leg immediately below the knee. Philon
testified that, during this incident, he also suffered an
injury to his back when he fell and hit his back on a tree
limb.
1061210
4
During surgery on his leg the next day, three screws were
placed in his left leg to repair the fracture. Dr. Albert
Pearsall IV was the treating physician. At the trial of this
case in September 2005, Philon testified that he experienced
substantial pain in his left leg and lower back. The
materials before us do not indicate, however, to what degree
this pain was attributable to his leg injury as opposed to his
back.
After a trial at which evidence was presented ore tenus,
the trial court entered a judgment finding Philon to be
permanently and totally disabled and awarding benefits
accordingly. Chadwick appealed with respect to the award of
worker's compensation benefits for the injury to Philon's
back.
Chadwick
contends
that
Philon
should
receive
compensation only for the injury to his leg.
The Court of Civil Appeals reversed the trial court's
judgment; it concluded that Philon had not presented
substantial evidence of medical causation with respect to his
back injury. Chadwick Timber Co. v. Philon, [Ms. 2050697,
March 16, 2007] ___ So. 2d ___ (Ala. Civ. App. 2007). Philon
1061210
5
then filed the present petition for the writ of certiorari
with this Court.
II. Analysis
A.
Was there substantial evidence that Philon hurt his back
during the March 8, 2001, accident?
The Court of Civil Appeals first considered whether the
record contained substantial evidence to support the trial
court's factual determination that Philon injured both his leg
and his back in the accident. The standard of appellate
review in workers' compensation cases is governed by § 25-5-
81(e), Ala. Code 1975, which provides that "[i]n reviewing
pure findings of fact, the finding of the circuit court shall
not be reversed if that finding is supported by substantial
evidence." "Substantial evidence" is "'evidence of such
weight and quality that fair-minded persons in the exercise of
impartial judgment can reasonably infer the existence of the
fact sought to be proved.'" Ex parte Trinity Indus., Inc.,
680 So. 2d 262, 269 (Ala. 1996) (quoting West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)).
The medical records from the two facilities at which
Philon was treated on March 8, 2001, contain no mention of any
1061210
The records from Philon's visit to the hospital at the
1
University of South Alabama on March 8, 2001, state that
Philon did not complain of any injury other than the injury to
his left leg.
The opinion of the Court of Civil Appeals states:
2
"At the hearing, Philon testified that he had
informed Dr. Pearsall several times that he was
having back pain; Philon acknowledged, however, that
6
complaints by Philon of back pain. Dr. Pearsall testified
1
that his first notation that Philon complained of back pain
was dated September 28, 2001. Philon repeated his complaint
of back pain to Dr. Pearsall again in October 2001 and also
told his physical therapist in the fall of 2001 that he was
experiencing back pain.
According to the opinion of the Court of Civil Appeals,
however, Philon testified at trial that he did injure his
lower back in the March 8, 2001, on-the-job accident. That
opinion also notes that Philon testified that he informed
medical personnel at both medical facilities he visited
immediately following the accident that he was experiencing
back pain. The Court of Civil Appeals' opinion also indicates
that Philon testified that he informed Dr. Pearsall "several
times" before September 2001 that he was experiencing back
pain.2
1061210
he 'might have' told Dr. Pearsall that that back
pain was mild. Dr. Pearsall testified that he could
have failed to document one complaint of back pain
before September 2001 but that he would 'find it
almost impossible to believe that [Philon] would
have mentioned [his claim of back pain] to me on
multiple occasions and I would have ignored him on
every occasion.'"
___ So. 2d at ___.
7
Based on the above-described conflicting evidence, the
trial court made the following specific factual findings:
"2. That on March 8, 2001, while employed with
Chadwick Timber Company as a chainsaw hand, [Philon]
sustained injuries while performing his job and such
injuries arose out of and in the course of his
employment. [Philon] received an injury to his left
leg and lower back in the course of performing his
work as a chainsaw hand. ... The Court is
satisfied that [Philon] proved causation in the
present case.
"....
"8. ... [Philon] testified and was a very
believable witness. ..."
The Court of Civil Appeals took up the issue whether "the
evidence in the record ... support[s] a conclusion that the
March 8, 2001, on-the-job accident caused an injury to
Philon's back." ___ So. 2d at ___. The court found that
"[o]ther than his own testimony that he fell and hit
his back on a tree limb, Philon failed to present
any evidence tending to indicate that he had
1061210
8
suffered a back injury as a result of his March 8,
2001, on-the-job accident. Given the evidence in
the
record,
we
must
hold
that
the
'overall
substance' of the evidence in the record does not
support a conclusion that Philon suffered a back
injury on March 8, 2001. See Ex parte Southern
Energy Homes, Inc., [873 So. 2d 1116, 1122 (Ala.
2003)]; Jackson Landscaping, Inc. v. Hooks, [844
So. 2d 1267 (Ala. Civ. App. 2002)]."
___ So. 2d at ___ (emphasis added).
In voting to deny the petition in this case, I do not
wish to be understood as approving the Court of Civil Appeals'
assertion that the testimony by Philon that "he fell and hit
his back on a tree limb" is the only evidence he presented
indicating that he hurt his back during the March 8, 2001,
accident; as already noted, the Court of Civil Appeals'
opinion describes other testimony by Philon that supports such
a finding. Moreover, I do not wish to be understood as
approving (1) the suggestion by the Court of Civil Appeals
that the testimony of Philon –- whom the trial court expressly
found to be a credible witness –- that he hurt his back when
he fell and hit a tree limb in his March 8, 2001, on-the-job
accident,
cannot
constitute
"substantial
evidence"
that
Philon
hurt his back in his March 8, 2001, on-the-job accident, or
(2) the finding by the Court of Civil Appeals, contrary to the
1061210
9
factual finding made by the trial court based on conflicting
evidence, that the record cannot "support a conclusion that
Philon suffered a back injury on March 8, 2001." ___ So. 2d
at ___.
Nonetheless, denial of certiorari review is appropriate
in this case. Even though the Court of Civil Appeals took up
this issue, that court also acknowledged that, "in his brief
submitted to [that] court Philon maintain[ed] that he did not
seek to establish in the trial court that he suffered an
injury to his lower back on March 8, 2001, when he injured his
leg in the on-the-job accident." ___ So. 2d at ___ n. 1
(emphasis added). Moreover, Philon's petition to this Court
contains no request for relief based on this issue. It is for
these reasons that I agree that no relief should be given in
this case based on this issue.
B.
Could the Court of Civil Appeals examine the "change-of-
gait" theory for Philon's back pain under the principle
that an appellate court can affirm a trial court's
judgment on any valid legal ground?
After addressing the issue whether the evidence supported
a conclusion that Philon directly injured his back on March 8,
2001, the Court of Civil Appeals turned its attention to the
alternative factual theory that Philon's back injury was
1061210
10
caused over time by changes in his gait resulting from his leg
injury. The Court of Civil Appeals stated its reason for
addressing this issue as follows: "This court may affirm a
correct judgment for any reason, even if the trial court did
not rely on that reason in reaching its judgment." ___ So. 2d
at ___. Even though the trial court made no finding on this
factual issue, the Court of Civil Appeals coupled the
foregoing statement with the assertion that "if properly
supported by the evidence, such a claim could support the
trial court's judgment."
It is important to note, however, that, although an
appellate court may affirm a judgment of a trial court on a
ground not relied upon by the trial court, this is so only if
the alternative ground is a "valid legal ground." Liberty
Nat'l Life Ins. Co. v. University of Alabama Health Servs.
Found., 881 So. 2d 1013, 1020 (Ala. 2003) (emphasis added)
(subject to due-process constraints, appellate courts "will
affirm the trial court on any valid legal ground presented by
the record, regardless of whether that ground was considered,
or even if it was rejected, by the trial court"); Smith v.
Equifax Servs., Inc., 537 So. 2d 463, 465 (Ala. 1988) (an
1061210
11
appellate court "'will affirm the judgment appealed from if
supported on any valid legal ground,'" even if that ground is
not raised below (quoting Tucker v. Nichols, 431 So. 2d 1263,
1265 (Ala. 1983) (emphasis added))); Pavilion Dev., L.L.C. v.
JBJ P'ship, 979 So. 2d 24, 41-43 (Ala. 2007) (Murdock, J.,
concurring specially). The role of an appellate court is to
decide questions of law. As this Court stated in Curtis White
Construction Co. v. Butts & Billingsley Construction Co., 473
So. 2d 1040, 1041 (Ala. 1985):
"It is the function of a trial judge sitting as
factfinder to decide facts where conflicts in the
evidence exist. ... The appellate courts do not
sit in judgment of the facts, and review the
factfinder's determination of facts only to the
extent of determining whether it is sufficiently
supported by the evidence, that question being one
of law."
(Emphasis added.) See also Ex parte Golden Poultry Co., 772
So. 2d 1175, 1177 (Ala. 2000) (after determining that the
trial court had applied the erroneous legal standard, the
Court of Civil Appeals erred by weighing the evidence under
the correct standard; the case should have been remanded for
the trial court to make the necessary findings under the
proper standard; an appellate court "is not authorized to
independently weigh the evidence").
1061210
Here, in fact, we are presented with a factual theory
3
that is different from the express factual findings made by
the trial court.
12
Applying the foregoing principles to the present case, I
note first that the trial court made no factual finding as to
whether Philon's back injury was caused over time by changes
to his gait resulting from his leg injury. Therefore, the
only basis upon which the Court of Civil Appeals could have
affirmed the judgment of the trial court on this alternative
factual theory is if the Court of Civil Appeals could have
determined, as a matter of law, that the record before it
could not reasonably support any conclusion other than that
Philon's back injury occurred in the stated manner. See
Gartman v. Hill, 874 So. 2d 555, 559 (Ala. Civ. App. 2003)
("While it is true that this court will affirm the judgment
appealed from if supported on any valid legal ground, the
evidence in this case falls well short of what would be
required for this court to hold, as a matter of law, that [the
plaintiff] is entitled [to prevail on a factual theory as to
which the trial court made no finding]."). See generally
3
§ 25-5-81(e), Ala. Code 1975; Ex parte Trinity Indus., Inc.,
680 So. 2d at 268-69.
1061210
13
The evidence of which we have been made aware is far from
sufficient to support the altered-gait theory as the only
reasonable factual explanation for Philon's back injury. The
verified statement of facts set forth in Philon's petition
mentions several occasions over the course of the year
following his injury in which Philon complained of some degree
of pain in his back, but the verified statement of facts
contains no mention of any attribution by Philon, on any such
occasion, of his back pain to changes in his gait resulting
from his leg injury. Unable to rely on any such attribution,
Philon takes the tack in his petition to this Court of arguing
that "Chadwick Timber offered no evidence of any other cause
of Mr. Philon's back pain" other than changes to his gait
resulting from his leg injury. (Emphasis added.)
The burden of proving medical causation lies with the
plaintiff, not the defendant. Ex parte Moncrief, 627 So. 2d
385, 388 (Ala. 1993) ("[F]or an injury to be compensable under
the Workers' Compensation Act, the employee must establish
both legal and medical causation."); Hammons v. Roses Stores,
Inc., 547 So. 2d 883 (Ala. Civ. App. 1989). The foregoing
evidence, as postured by Philon, the plaintiff, provides no
1061210
Notwithstanding Philon's testimony (according to the
4
trial court) that he hurt his back on March 8, 2001, the
opinion of the Court of Civil Appeals contains a brief
statement at one point that "Philon testified that his leg
injury caused him to suffer back pain." ___ So. 2d at ___.
Philon's petition makes no meaningful argument based on
whatever testimony he gave in this regard.
14
basis upon which the Court of Civil Appeals could have
concluded as a matter of law that there was no explanation for
Philon's back injury other than the alleged changes to his
gait resulting from his leg injury.
Philon's petition contains a passing reference to the
fact that he testified about his back pain, but it does not
explain what that testimony was or how it supports his
alternative factual theory. The only other evidence offered
4
by Philon in support of this alternative theory is the
testimony
of
his
treating
physician,
Dr.
Pearsall.
Dr. Pearsall, however, testified only that a change in a
person's gait resulting from a knee injury "potentially could"
"have an effect on the back." When asked, "could that be
causing Mr. Philon to have lower back pain," Dr. Pearsall
merely testified, "it could, yes." When asked further if he
had an opinion "as to whether or not Mr. Philon experienced
back pain or back problems as a result of any changes in his
1061210
15
gait," Dr. Pearsall testified, "I think that's possible."
Dr. Pearsall apparently was not asked for and did not offer
any opinion as to whether it was "probable" or "likely" that
Philon experienced problems with his back as a result of
changes in his gait caused by his leg injury. As the Court of
Civil Appeals recognized, Dr. Pearsall's testimony amounts to
"'evidence of mere possibilities that would only serve to
'guess' the employer into liability.'" ___ So. 2d at ___
(quoting Ex parte Southern Energy Homes, Inc., 873 So. 2d
1116, 1122 (Ala. 2003), quoting in turn Hammons v. Roses
Stores, Inc., 547 So. 2d at 885 (emphasis added)).
The record presented to the Court of Civil Appeals did
not support an affirmance of the trial court's judgment on the
alternative ground that Philon's back injury was a result of
changes in his gait caused by his leg injury. Accordingly, as
to this alternative theory, I find no probability of merit in
the petition for the writ of certiorari. I therefore vote to
deny the petition. | December 19, 2008 |
cddfa89e-4ae2-47ed-af28-d33718e6acf9 | Opinion of June 27, 2008, Withdrawn; Opinion Substituted; Judgment Vacated; Alabama Department of Corrections and Richard Allen v. Montgomery County Commission | N/A | 1051455 | Alabama | Alabama Supreme Court | REL: 12/12/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1051455
_________________________
Alabama Department of Corrections and Richard Allen
v.
Montgomery County Commission
Appeal from Montgomery Circuit Court
(CV-04-1433)
On Rehearing Ex Mero Motu
PER CURIAM.
The opinion of June 27, 2008, is withdrawn, and the
following opinion is substituted therefor.
1051455
2
The Alabama Department of Corrections ("the DOC") and
Richard Allen, its commissioner, appeal from a summary
judgment in favor of the Montgomery County Commission ("the
Commission") entered by the Montgomery Circuit Court. We
dismiss the appeal, vacate the summary judgment, and dismiss
the action.
I. Facts and Procedural History
This case arose out of a dispute between the Commission
and the DOC over responsibility for the payment of medical
expenses incurred in the treatment of Betti Jo Day while she
was housed at the Montgomery County Detention Facility. On
May 27, 2004, the Commission sued the DOC in the Montgomery
Circuit Court. The one-count complaint sought a judgment
declaring that Day's "medical bills [were] the financial
responsibility of the [DOC] pursuant to Ala. Code 1975, § 14-
3-30(b)." On July 20, 2004, the DOC filed an answer in which
it denied the material allegations of the complaint.
On November 18, 2005, the Commission filed a motion for
a summary judgment in which it argued that, under Ala. Code
1975, § 14-3-30(b), the DOC was obligated to cover Day's
medical expenses, which, according to the Commission, totaled
1051455
3
$127,032.93. The circuit court denied the motion. On March
2, 2006, the Commission filed an amended complaint in which it
purported to add as a defendant Richard Allen, in his official
capacity as commissioner of the DOC. The amended complaint
sought an order from the court requiring Allen "to perform his
legal duties" under § 14-3-30(b) and "to reimburse [the
Commission] for its payment of [Day's] medical bills that were
the financial responsibility of" the DOC.
The DOC filed a motion for a summary judgment on
March 31, 2006. On May 11, 2006, the Commission filed a
cross-motion for a summary judgment. On May 31, 2006, the
circuit court granted the Commission's motion and entered a
summary judgment in its favor. The court declared that the
expenses of Day's medical care were the responsibility of the
DOC and ordered Allen to ensure that DOC funds were used to
reimburse the Commission the $127,032.93 the Commission had
spent on Day's medical care. The DOC and Allen appealed.
On June 27, 2008, this Court issued an opinion. After
considering the arguments made by the parties at that time, we
dismissed the appeal as to the DOC, stating that as to it the
circuit court's judgment was void. We affirmed the judgment
1051455
4
against Allen. No application for rehearing was filed, and we
issued a certificate of judgment on July 15, 2008. However,
on September 18, 2008, pursuant to Supreme Court Internal Rule
VI.J.3., see Ex parte James, 836 So. 2d 813, 877 (Ala. 2002)
(Johnstone, J., dissenting), we recalled the certificate of
judgment and placed the case on rehearing ex mero motu. In so
doing, we directed the parties to "file simultaneous
supplemental
briefs
addressing
the
issue
whether
the
Montgomery Circuit Court had subject-matter jurisdiction to
allow the amendment of the complaint to add [Allen] as a
defendant," with specific reference to Ex parte Alabama
Department of Transportation (In re Good Hope Contracting Co.
v. Alabama Department of Transportation), 978 So. 2d 17 (Ala.
2007)
(hereinafter
"Good
Hope").
The
parties
have
appropriately responded.
II. Discussion -- Sovereign Immunity
Allen and the DOC now contend that the entire action,
which was initially filed against the DOC only, was barred by
the doctrine of sovereign immunity. Relying on Ala. Const.
1901, § 14, and recent caselaw, they argue that the initial
complaint did not confer subject-matter jurisdiction on the
1051455
5
circuit court. They insist that such "lack of jurisdiction
cannot be cured by amendment, and that a circuit court lacking
subject-matter
jurisdiction
has
no
authority
except
to
dismiss
the complaint. Consequently, anything the circuit court did
..., including allowing the amendment to add Commissioner
Allen as a defendant, [was] null and void." Allen and DOC's
rehearing brief, at 4. We agree.
Section 14, Ala. Const. 1901, provides: "[T]he State of
Alabama shall never be made a defendant in any court of law or
equity." (Emphasis added.) "The wall of immunity erected by
§ 14 is nearly impregnable." Patterson v. Gladwin Corp., 835
So. 2d 137, 142 (Ala. 2002). Indeed, as regards the State of
Alabama and its agencies, the wall is absolutely impregnable.
Ex parte Alabama Dep't of Human Res., [Ms. 1070042, June 20,
2008] ___ So. 2d ___, ___ (Ala. 2008) ("Section 14 affords
absolute immunity to both the State and State agencies."); Ex
parte Jackson County Bd. of Educ., [Ms. 1070878, Aug. 22,
2008] ___ So. 2d ___, ___ (Ala. 2008) (same); Atkinson v.
State, 986 So. 2d 408, 410-11 (Ala. 2007) (same); Good Hope
(same); Ex parte Alabama Dep't of Transp., 764 So. 2d 1263,
1268 (Ala. 2000) (same); Mitchell v. Davis, 598 So. 2d 801,
1051455
6
806 (Ala. 1992) (same). "Absolute immunity" means just that
-- the State and its agencies are not subject to suit under
any theory.
"This immunity may not be waived." Patterson, 835 So. 2d
at 142. Sovereign immunity is, therefore, not an affirmative
defense, but a "jurisdictional bar." Ex parte Alabama Dep't
of Transp., 985 So. 2d 892, 894 (Ala. 2007). The
jurisdictional bar of § 14 simply "preclud[es] a court from
exercising subject-matter jurisdiction" over the State or a
State agency. Lyons v. River Road Constr. Co., 858 So. 2d
257, 261 (Ala. 2003). Thus, a complaint filed solely against
the State or one of its agencies is a nullity and is void ab
initio. Ex parte Alabama Dep't of Transp. (In re Russell
Petroleum, Inc. v. Alabama Dep't of Transp.), [Ms. 1070721,
June 13, 2008] ___ So. 2d ___ (Ala. 2008) (hereinafter
"Russell"). Any action taken by a court without subject-
matter jurisdiction -- other than dismissing the action -- is
void. State v. Property at 2018 Rainbow Drive, 740 So. 2d
1025, 1029 (Ala. 1999).
Russell, like this case, began with a complaint filed
solely against a State agency, namely, the Alabama Department
1051455
7
of Transportation ("ADOT"). Specifically, the complaint was
filed on September 30, 2005.
"On November 18, 2005, ADOT moved to dismiss on the
ground that the action [was] barred by [§ 14] ....
Subsequently, Russell filed a motion seeking to
'substitute (or add) D.J. McInnes, as Director of
[ADOT] as the Defendant in this case [("the
director")], to dismiss [ADOT] as a Defendant, and
to permit this litigation to proceed accordingly.'
It also filed an amended complaint styled 'Russell
Petroleum,
Inc.
v.
Alabama
Department
of
Transportation; and D.J. McInnes, as Director of the
Alabama Department of Transportation.' The claims
in the amended complaint were in three counts.
Count one sought a judgment declaring that the
director had taken Russell's property without just
compensation. Count two sought a writ of mandamus
compelling the director to compensate Russell for
the alleged taking. Count three sought 'an award of
money that [would] justly compensate [Russell] for
the
inverse
condemnation
and
taking
of
its
property.'
"On November 30, 2007, ADOT and the director
filed a joint motion to dismiss the case, arguing
that, based on the authority of [Good Hope], the
court did not have subject-matter jurisdiction over
them. In their brief in support of that motion,
ADOT and the director argued that the amended
complaint was a nullity and that the court had no
alternative but to dismiss the action. This was so,
because, they argued, the original complaint failed
to invoke the subject-matter jurisdiction of the
trial court, having named only ADOT, which is
absolutely immune from suit, and the amended
complaint, which purported to amend an action that
was void ab initio, was a nullity; therefore, no
jurisdiction attached as a result of the purported
amendment. The trial court denied the motion to
dismiss, and [ADOT's mandamus] petition followed."
1051455
8
Russell, ___ So. 2d at ___.
This Court granted ADOT's petition and issued the writ of
mandamus, saying: "[W]e hold that the trial court lacked
subject-matter jurisdiction to entertain an amendment to the
original complaint, which was filed solely against ADOT.
Because the trial court does not have -- and has never had --
subject-matter jurisdiction over this action, it must be
dismissed." Russell, ___ So. 2d at ___ (emphasis added).
In so holding, we discussed and relied on Good Hope,
stating:
"In Good Hope, Good Hope Contracting Company,
Inc. ('the Company'), sued ADOT seeking declaratory
relief, damages for breach of contract, and a writ
of mandamus directing ADOT to pay for services the
Company had allegedly rendered to ADOT. Good Hope,
978 So. 2d at 20. ADOT 'moved the trial court to
dismiss the complaint on the ground that [ADOT], as
an agency of the State of Alabama, is entitled to
sovereign immunity under § 14, Ala. Const. 1901.'
Good Hope, 978 So. 2d at 20. When the trial court
failed to rule on the motion, ADOT petitioned this
Court for a writ of mandamus. Id. In its response
to the petition, the Company asked this Court to
direct the trial judge 'to allow [the Company] to
amend its complaint to add the proper party.' 978
So. 2d at 25 (emphasis added)."
Russell, ___ So. 2d at ___.
1051455
9
We then explained how, in Good Hope, we had "also refused
to allow the Company to amend its complaint to add the proper
party." Russell, ___ So. 2d at ___. We stated:
"'[ADOT] argued in its motion to dismiss
that, as a State agency, it was not the
proper party to be sued, and it pointed out
that [the Company] had failed to name any
State
official
as
a
party.
[ADOT]'s
supplemental
submission
and
brief
in
support of motion to dismiss, tab 3 at 8.
"'Further, in Ex parte Blankenship,
893 So. 2d 303, 306-07 (Ala. 2004), this
Court held that, if a trial court lacks
subject-matter jurisdiction, it has no
power to take any action other than to
dismiss the complaint. A trial court lacks
subject-matter
jurisdiction
if
the
defendant is immune under the doctrine of
sovereign immunity. Larkins [v. Department
of Mental Health & Mental Retardation, 806
So. 2d [358,] 364 (Ala. 2002)] ("'Article
I, § 14, of the Alabama Constitution of
1901
thus
removes
subject-matter
jurisdiction from the courts when an action
is determined to be one against the
State.'" (quoting [Alabama State Docks
Terminal Ry. v.] Lyles, 797 So. 2d [432,]
435 [(Ala. 2001)])). Thus, this Court
cannot order the trial court to allow Good
Hope to amend its complaint because the
trial
court
lacks
subject-matter
jurisdiction.'
"Good Hope, 978 So. 2d at 26 (emphasis added).
Accord Ex parte Alabama Dep't of Transp., 990 So. 2d
366 (Ala. 2008)."
Russell, ___ So. 2d at ___.
1051455
10
Russell
and
Good
Hope
control
this
case.
The
Commission's original complaint named only the DOC as a
defendant. Because the DOC is a State agency, it is, under §
14, absolutely immune from suit. Because the original
complaint named only a party that has absolute State immunity,
it failed to trigger the subject-matter jurisdiction of the
circuit court. Consequently, it was a nullity. The purported
amendment of a nullity is also a nullity. See Porter v.
Commonwealth, 276 Va. 203, 228, 661 S.E.2d 415, 427 (2008) ("A
defect in subject matter jurisdiction cannot be cured by
reissuance
of
process,
passage
of
time,
or
pleading
amendment."). Because the circuit court never acquired
subject-matter jurisdiction over this action, its orders and
judgments are void, including the judgment that is the subject
of this appeal.
The Commission attempts to distinguish this case from
Good Hope. It concedes that both cases involved claims for
declaratory relief, but it argues that Good Hope also included
a breach-of-contract claim, while this case involves the
construction of a statute. More specifically, according to
the Commission, caselaw going back nearly 40 years supports
the proposition that the prohibition of § 14 is subject to
1051455
11
certain exceptions, such as "'(1) [a]ctions brought to compel
State officials to perform their legal duties[;].... (2)
[a]ctions brought to enjoin State officials from enforcing an
unconstitutional law[;].... (3) [a]ctions to compel State
officials to perform ministerial acts[;].... [and] (4)
[a]ctions ... seeking construction of a statute ....'"
Patterson v. Gladwin Corp., 835 So. 2d at 142 (quoting Aland
v. Graham, 287 Ala. 226, 229-30, 250 So. 2d 677, 679 (1971)).
Recently, in Alabama Department of Transportation v.
Harbert International, Inc., 990 So. 2d 831, 841 (Ala. 2008),
we acknowledged some lack of clarity in our caselaw. There,
we said:
"'It is true that [some of our opinions have been]
worded in such a way as to leave open the
possibility that the exception[s] ... [are] not
limited to actions against State officials. It is
[our] conclusion, however, that [such cases] have
not been careful in their articulation of [the
exceptions] to sovereign immunity, particularly in
light of the absolute immunity that it is now well
established extends both to the State and to State
agencies.'"
(Quoting Raley v. Main, 987 So. 2d 569, 583 (Ala. 2007)
(Murdock, J., concurring in part and concurring in the result)
(first emphasis added).)
1051455
12
However, careless language is never a justification for
ignoring the clearly expressed mandate of the Constitution.
It is well established that the State and its agencies have
absolute immunity from suit, not simply immunity from certain
claims. That is the plain meaning of § 14 ("the State of
Alabama shall never be made a defendant in any court"). See
also Mitchell v. Davis, 598 So. 2d 801, 806 (Ala. 1992) ("The
State and its agencies have absolute immunity from suit in any
court under [§ 14]."). Thus, the exceptions are relevant only
as they relate to claims against State officials in their
official capacities, not as they relate to the State agency or
the State itself. For actions against the State or one of its
agencies, there are no exceptions, and, for pleading purposes
as explained above, the distinction is critical.
III. Conclusion
In conclusion, the Montgomery Circuit Court does not have
-- and has never had -- subject-matter jurisdiction over this
action. Thus, its judgment is void, and it is hereby vacated,
and this action is dismissed. Moreover, a void judgment will
not support an appeal. Faith Props., LLC v. First Commercial
Bank, 988 So. 2d 485, 492 (Ala. 2008). Therefore, this appeal
is dismissed.
1051455
13
OPINION OF JUNE 27, 2008, WITHDRAWN; OPINION SUBSTITUTED;
JUDGMENT VACATED; APPEAL DISMISSED; AND CASE DISMISSED.
See, Lyons, Woodall, Stuart, Smith, Bolin, and Parker,
JJ., concur.
Cobb, C.J., and Murdock, J., dissent.
1051455
14
MURDOCK, Justice (dissenting).
For the reasons explained in my special writings in Cadle
Co. v. Shabani, [Ms. 1070116, Sept. 5, 2008] ___ So. 2d ___
(Ala. 2008) (Murdock, J., dissenting), and Ex parte Alabama
Department of Transportation, [Ms. 1070721, Oct. 24, 2008] ___
So. 2d ___ (Ala. 2008) (Murdock, J., dissenting), I
respectfully dissent.
Cobb, C.J., concurs. | December 12, 2008 |
1642fe63-7459-4113-9ded-bcb6dac97e18 | Ex parte LCS Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Carl Braxton Toole v. LCS Inc.) | N/A | 1071668 | Alabama | Alabama Supreme Court | REL: 12/19/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071668
_________________________
Ex parte LCS Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Carl Braxton Toole
v.
LCS Inc.)
(Montgomery Circuit Court, CV-07-001595)
LYONS, Justice.
LCS Inc. petitions this Court for a writ of mandamus
directing the Montgomery Circuit Court to dismiss the claims
1071668
2
against it in the underlying action on the basis of res
judicata. We grant the petition and issue the writ.
I. Factual Background and Procedural History
Carl
Braxton
Toole
is
an
inmate
in
the
Alabama
correctional system. During his incarceration he has been
moved from prison to prison, including a private prison in
Louisiana operated by LCS Inc. On October 3, 2006, while
incarcerated in Louisiana, Toole filed a 42 U.S.C. § 1983
action in the Evangeline, Louisiana, District Court contending
that he had been denied a fundamental right to access the law
library in the private prison. Toole contended that the lack
of access led to his being unable to file a brief in an appeal
he had pending in the Alabama Court of Criminal Appeals from
the denial of a Rule 32, Ala. R. Crim. P., petition for
postconviction relief and that his failure to file the brief
resulted in the dismissal of his appeal. The Louisiana
district court entered a summary judgment against Toole on
October 1, 2007.
On October 11, 2007, Toole, now back in an Alabama
prison, filed a § 1983 action in the Montgomery Circuit Court
asserting the same facts and law and seeking the same relief.
1071668
3
LCS filed a motion to dismiss the Alabama action on the basis
of res judicata and collateral estoppel; the trial court
denied LCS's motion. LCS timely filed this petition on
September 12, 2008.
II. Standard of Review
"'Mandamus
is
a
drastic
and
extraordinary writ to be issued only where
there is (1) a clear legal right in the
petitioner to the order sought; (2) an
imperative duty upon the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of
the court.'"
Ex parte Mardis, 628 So. 2d 605, 606 (Ala. 1993) (quoting Ex
parte Ben-Acadia, Ltd., 566 So. 2d 486, 488 (Ala. 1990)).
Moreover, a petition for a writ of mandamus is an appropriate
method by which to seek this Court's review of the denial of
a motion to dismiss predicated on the doctrine of res
judicata. Ex parte Sears, Roebuck & Co., 895 So. 2d 265 (Ala.
2004).
III. Analysis
Toole has filed two actions seeking the same relief in
courts of proper jurisdiction in two states. The Louisiana
complaint named as defendants LCS Inc. and three officers with
1071668
4
the Louisiana corrections system. Toole alleged a § 1983
civil-rights claim against the defendants "for denying
plaintiff meaningful access to court and the denial [of]
access to the law library at Pine Prairie Correctional Center
which resulted in plaintiff losing his time to file an Appeal
Brief" with the Alabama Court of Criminal Appeals. The
Evangeline District Court adjudicated Toole's claim on its
merits and entered a final judgment against Toole.
The Alabama complaint, as originally filed, named as
defendants "in their individual capacity" Richard Allen, as
commissioner of the Alabama Department of Corrections, and
Patrick LeBlanc, as president of LCS Inc. Toole alleged that
he was denied "his First Amendment Right to the United States
Constitution to meaningful access to the courts, by depriving
[him] access to the prison law library in a timely manner
based upon a contract between the defendants and a policy
written in one of the defendant's Inmate Offenders Handbook."
Both defendants filed motions to dismiss. On April 30, 2008,
the trial court granted Allen's motion to dismiss. On August
15, 2008, the trial court denied LeBlanc's motion to dismiss
based upon the doctrines of res judicata and collateral
1071668
Neither party explains the substitution of LCS for
1
LeBlanc. We interpret the trial court's order allowing LCS to
be named as a defendant in place of LeBlanc "and/or his
estate" to indicate that LeBlanc died during the pendency of
this litigation.
5
estoppel. In the same order, the trial court granted Toole's
motion for substitution of a party "such that Defendant,
Patrick LeBlanc and/or his estate is hereby dismissed from
this case and LCS, Inc. (Louisiana Correctional Services,
Inc.) is hereby added as a named Defendant."
1
In Lee L. Saad Construction Co. v. DPF Architects, P.C.,
851 So. 2d 507, 516-17 (Ala. 2002), this Court discussed the
elements of res judicata:
"Res judicata and collateral estoppel are two
closely related, judicially created doctrines that
preclude the relitigation of matters that have been
previously adjudicated or, in the case of res
judicata, that could have been adjudicated in a
prior action.
"'The doctrine of res judicata, while
actually embodying two basic concepts,
usually refers to what commentators label
"claim
preclusion,"
while
collateral
estoppel ... refers to "issue preclusion,"
which is a subset of the broader res
judicata doctrine.'
"Little v. Pizza Wagon, Inc., 432 So. 2d 1269, 1272
(Ala. 1983) (Jones, J., concurring specially). See
also McNeely v. Spry Funeral Home of Athens, Inc.,
724 So. 2d 534, 537 n.1 (Ala. Civ. App. 1998). In
Hughes v. Martin, 533 So. 2d 188 (Ala. 1988), this
1071668
6
Court explained the rationale behind the doctrine of
res judicata:
"'Res judicata is a broad, judicially
developed doctrine, which rests upon the
ground that public policy, and the interest
of the litigants alike, mandate that there
be an end to litigation; that those who
have contested an issue shall be bound by
the ruling of the court; and that issues
once tried shall be considered forever
settled between those same parties and
their privies.'
"533 So. 2d at 190. The elements of res judicata
are
"'(1) a prior judgment on the merits, (2)
rendered
by
a
court
of
competent
jurisdiction,
(3)
with
substantial
identity
of the parties, and (4) with the same cause
of action presented in both actions.'
"Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634,
636 (Ala. 1998). 'If those four elements are
present, then any claim that was, or that could have
been, adjudicated in the prior action is barred from
further litigation.' 723 So. 2d at 636. Res
judicata, therefore, bars a party from asserting in
a subsequent action a claim that it has already had
an opportunity to litigate in a previous action."
Clearly, the four elements necessary to establish res
judicata are present in this case: (1) There is a prior
judgment on the merits of Toole's claim that he was improperly
denied access to the law library in the Louisiana prison
operated by LCS; (2) the prior judgment was rendered by a
1071668
7
court of competent jurisdiction; (3) there is complete
identity of the parties--Toole was the plaintiff in both
actions, and, upon the trial court's order granting the motion
for substitution, LCS, a defendant in the Louisiana action,
became a defendant in the Alabama action; and (4) the same
cause of action, namely, Toole's claim that he was denied
access to the prison law library and thus to the courts, was
presented in this and the previously filed action. The
doctrine of res judicata applies not only to the exact legal
theories presented in the prior action, but to "all legal
theories and claims arising out of the same nucleus of
operative facts." Old Republic Ins. Co. v. Lanier, 790 So. 2d
922, 928 (Ala. 2000). The doctrine of res judicata,
therefore, bars Toole from asserting in the Alabama action the
claim that he has already had an opportunity to litigate in
the previous Louisiana action.
IV. Conclusion
LCS has shown a clear legal right to the relief it seeks
in that it was entitled to have its motion to dismiss granted
on the basis of res judicata. We therefore grant LCS's
petition for the writ of mandamus and direct the Montgomery
1071668
8
Circuit Court to enter an order dismissing Toole's claims
against LCS.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur. | December 19, 2008 |
a5d81cf9-bc51-43f7-bf7c-5afc5f2eea94 | Dorrough v. McKee | 89 So. 2d 77 | N/A | Alabama | Alabama Supreme Court | 89 So. 2d 77 (1956)
Ellen DORROUGH et al.
v.
Sam B. McKEE et al.
5 Div. 586.
Supreme Court of Alabama.
June 21, 1956.
Rehearing Denied August 2, 1956.
*78 Robert E. Varner, Montgomery, and Walker & Walker, Opelika, for appellants-petitioners.
Henry Neil Segrest and Russell & Russell, Tuskegee, for appellee.
LAWSON, Justice.
On December 17, 1952, Ellen Dorrough and Clara Bell Kimbrough filed their bill in the circuit court of Macon County, in equity, seeking sale of land for division of proceeds among tenants in common. The respondents to the bill, twelve in number, together with the complainants, are alleged to be the heirs at law of Mary Louise McKee, who died intestate on June 19, 1952. One of the respondents, Sam B. McKee, is sued in his individual capacity and as administrator of the estate of Mary Louise McKee. The bill does not allege where the administration of the estate of Mary Louise McKee is pending or on what date letters of administration were granted to Sam B. McKee.
The land sought to be sold for division is approximately 140 acres situate in Macon County, which is specifically described.
The bill avers the interest in the suit property of each alleged tenant in common. According to the averments of the bill, the property cannot be equitably divided without a sale. The bill further alleges: "The personal property of said estate is sufficient to pay the said decedent's debts if any."
On March 25, 1953, there was filed the following sworn plea in abatement:
Thereafter on June 3, 1953, the complainants filed their motion, containing eleven grounds, to strike the plea in abatement.
Before any action was taken on the motion to strike the plea in abatement, the complainants filed the following motion:
October 8, 1953, was the day set by the trial court for hearing the motion to strike the plea in abatement as well as the day set for the hearing as to the sufficiency of said plea. Thereafter on November 3, 1953, the trial court rendered the following decree:
From that decree the complainants have sought to prosecute an appeal to this court.
Submission here by the appellants was on the merits and on a motion for the alternative writ of mandamus and by the appellees on their motion to dismiss the appeal.
No appeal can be taken from a decree or judgment overruling or sustaining the sufficiency of a plea.§§ 745, 755, Title 7, Code 1940; State v. Jabeles, 203 Ala. 670, 85 So. 16; Worthington v. Morris, 212 Ala. 334, 102 So. 620; Bullen v. Bullen, 231 Ala. 192, 164 So. 89; Austin v. Eyster, 242 Ala. 402, 6 So. 2d 892; Rowe v. Bonneau-Jeter *80 Hardware Co., 245 Ala. 326, 16 So. 2d 689, 158 A.L.R. 1266; Dobbs Truss Co., Inc., v. Sutherland, 256 Ala. 581, 56 So. 2d 638; Forbes v. Summers, 259 Ala. 271, 66 So. 2d 762.
But the decree of the trial court here sought to be reviewed by appeal concludes: "* * * and the bill of complaint in this cause is hereby dismissed." The appellants contend that the quoted language makes the decree such a final decree as will support an appeal. We cannot agree. In Ex parte Adams, 216 Ala. 241, 242, 113 So. 235, 236. Chief Justice Anderson, writing for the court, said:
In Graves v. Barganier, 223 Ala. 167, 134 So. 874, on an appeal from a decree striking the bill of complaint in an equity case, the author of the opinion in the Adams case, supra, writing for the court, said in part as follows: "Whatever may be the rule in other jurisdictions, our court has long been committed to the rule that an order of the trial court in striking a complaint without more will not support an appeal, but can be reviewed by mandamus. Davis v. McColloch, 191 Ala. 520, 67 So. 701, and cases cited."
The record in the instant case shows that the bill of complaint was merely dismissed and that such order was not followed up by a decree for costs. Under the rule of our cases the appeal is due to be dismissed. Davis v. McColloch, 191 Ala. 520, 67 So. 701; Graves v. Barganier, supra; Cooper v. Cooper, 216 Ala. 366, 113 So. 239; Townsend v. McCall, 262 Ala. 235, 78 So. 2d 310.
It is so ordered.
We come now to a consideration of the written motion for alternative writ of mandamus.
We do not ordinarily entertain a petition or motion for mandamus to review a ruling of the trial court on the sufficiency of a plea in abatement, which is subject to review on appeal from a final decree. But we have done so when adequate relief was not available on appeal from the final decree. Ex parte Morton, 261 Ala. 581, 75 So. 2d 500, and cases cited.
In the case at hand the trial court has rendered a decree dismissing the complainant's bill. Yet the decree is not in such form as to support an appeal. Mandamus is the proper method of reviewing the action of the trial court in dismissing the bill in question. Ex parte Adams, supra; Davis v. McColloch, supra. We also think that under the circumstances which prevail that in the mandamus proceeding we should review the action of the trial court upholding the legal sufficiency of the plea in abatement.
As pointed out in several of our cases, a demurrer to a plea in an equity case is not contemplated. Ex parte Morton, supra; International Moving Picture & Film Co. v. Smith, 211 Ala. 3, 99 So. 303; Glasser, Kuder & Ottensosser v. Meyrovitz, 119 Ala. 152, 24 So. 514. But when a plea is set down for argument in an equity case the inquiry is substantially as it would be on a demurrer to the plea. The only question considered is the sufficiency of the plea as a defense. For the purpose of *81 determining that question, the plea is construed most strongly against the pleader and the truth of the facts alleged is admitted for the sole purpose of determining the sufficiency of the plea as a defense. The respondent is not to be relieved of the burden of proving his plea even though it be held legally sufficient. Templeton v. Scruggs, 234 Ala. 146, 174 So. 237; Badham v. Badham, 244 Ala. 622, 14 So. 2d 730; Little v. Little, 249 Ala. 144, 30 So. 2d 386, 171 A.L.R. 1399. See 30 C.J.S., Equity, § 326, p. 746, and "Pleas in Equity," by the late Judge E. M. Creel, Alabama Lawyer, Vol. 13, No. 2, p. 125.
The holding by the trial court "that said plea in abatement filed by the respondent to the original bill of complaint in this cause is sufficient, is a good plea, and the plea in abatement is therefore sustained, etc." did not authorize the court to dismiss the bill of complaint. The record does not disclose a joinder by the complainants on the plea in abatement. The complainants did not amend their bill after the sufficiency of the plea was sustained. No proof of the averments of the plea was adduced. As heretofore indicated, there is a distinct difference between a decree sustaining the sufficiency of a plea on a hearing of the kind here involved and a decree in favor of the respondent after a hearing on the merits. Templeton v. Scruggs, supra.
The submission being only to test the sufficiency of the plea, it was error to dismiss the bill even though it be assumed that the court correctly determined the plea to be legally sufficient. Badham v. Badham, supra. The action of the trial court in dismissing the bill after finding the plea sufficient is tantamount to dismissing a complaint after overruling a demurrer to a plea in a case on the law side which, of course, would be improper. In brief filed here in support of the trial court's action in dismissing the bill, counsel for appellees relies upon the case of Austin v. Eyster, 242 Ala. 402, 6 So. 2d 892, 893, wherein the trial court sustained the plea in abatement in a case somewhat similar to the one at bar and then dismissed the bill. Although we dismissed the appeal in that case, we stated in the opinion: "The trial court correctly sustained the plea in abatement and dismissed appellant's bill." At this point in the opinion we are not concerned with the correctness of the statement to the effect that the trial court correctly sustained the plea in abatement, but we are compelled to observe that we were in error in holding that the bill of complaint was correctly dismissed and to that extent the opinion in Austin v. Eyster, supra, will not be followed. Badham v. Badham, supra. Perhaps it is well to state also that we erroneously dismissed the appeal in the case of Austin v. Eyster, supra, inasmuch as examination of the original transcript in that case discloses that the bill was not only dismissed but the costs were taxed against the complainant, hence it was a final decree from which an appeal could be taken to this court. Ex parte Hendree, 49 Ala. 360; Ex parte Adams, supra.
Since the respondents had not pleaded on the merits or otherwise waived their right to file a plea in abatement, the trial court had a discretion to allow the plea although it was not filed within the period of time provided in Equity Rule 17, Code 1940, Tit. 7, Appendix. Dorrough v. Mackenson, 229 Ala. 336, 157 So. 257, and cases cited; Ex parte Anderson, 242 Ala. 31, 4 So. 2d 420; Ex parte Union Planters Nat. Bank & Trust Co., etc., 249 Ala. 461, 31 So. 2d 596.
We come now to a consideration of the question as to whether the trial court correctly sustained the sufficiency of the plea in abatement.
There are two occasions when an administrator is empowered to sell the lands of the decedent. One is when the personal property is insufficient to pay debts and it is necessary to resort to the lands for that purpose. § 244, Title 61, Code 1940. This is a mandatory duty, part of the general *82 duty to faithfully administer the estate. The other is for a division among the heirs of the estate when the lands cannot be equitably divided when one or more of the adult heirs files a written consent to the sale. § 245, Title 61, Code 1940; Boyte v. Perkins, 211 Ala. 130, 99 So. 652.
The plea in abatement alleges that the petition was filed in the probate court by the administrator under the provisions of § 245, Title 61, supra, at the request of an adult heir. When the plea is construed most strongly against the pleader, it appears that the lands of the intestate are not needed to pay the debts of her estate or the costs of administration and that the time for filing claims against the estate has expired. True, the plea does not expressly allege the date on which letters of administration were issued to the respondent Sam B. McKee, but the plea was filed more than six months after the death of the intestate and since it is to be assumed that the administrator put forward his best case in the plea, it follows that the plea is subject to the construction that letters of administration were granted to the administrator by the probate court of Macon County more than six months, §§ 210, 211, Title 61, Code 1940, prior to the time the plea was filed.
Since there is no question of dower or homestead rights involved and the lands of the estate are not needed to pay debts of the estate or costs of administration, the following cases relied upon by the respondents below are not controlling here. Garth v. Ewing, 218 Ala. 143, 117 So. 665; Ex parte Stephens, 233 Ala. 167, 170 So. 771; Austin v. Eyster, supra; Jordan v. Jordan, 251 Ala. 620, 38 So. 2d 865; Luker v. Hyde, 253 Ala. 283, 45 So. 2d 32. And in some of the cases just cited the question was the suffciency of the bill as against demurrer rather than the sufficiency of a plea in abatement as a defense to a bill in equity.
The circuit court, in equity, first took cognizance of this matter. § 186, Title 47, Code 1940. The general rule is that when two courts have concurrent jurisdiction, the court which first takes cognizance in a case has the right to retain it to the exclusion of the other. Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 94 Ala. 303, 11 So. 353. We think that rule applicable here since the administrator, who was made a party to the bill in equity, has filed a plea in abatement wherein he fails to show any legal reason why the matter should not proceed in the equity court. A contrary holding would, in our opinion, give to the administrator, under the provisions of § 245, Title 61, rights prior to those conferred upon the heirs at law as tenants in common or joint owners under the provisions of § 186, Title 47, Code of 1940, which we do not believe was the legislative intent.
The questions which are presented here have not proven easy of solution. The case has been given our studied consideration and we do not believe that the conclusion reached as to the insufficiency of the plea in abatement does violence to any of our cases which relate to the general subject of jurisdiction of the circuit courts in equity and the probate court in cases involving the sale for distribution of lands of an estate.
We are of the opinion that the plea in abatement fails to show a defense to the bill in equity and that the trial court erred in holding to the contrary.
If upon being advised of this opinion the trial judge shall refuse or fail to vacate the decree upholding the sufficiency of the plea in abatement and dismissing the bill, a peremptory writ will be ordered by this court upon the further application of the complainants below.
Writ of mandamus awarded conditionally.
SIMPSON, STAKELY, GOODWYN, MERRILL and SPANN, JJ., concur.
LIVINGSTON, C. J., not sitting. | June 21, 1956 |
87455a83-eca6-485d-8a6a-45f3711fcf48 | Ex parte Indiana Mills & Manufacturing, Inc. and McNeilus Truck and Manufacturing, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Marcy Johnson, as personal representative of the estate of James Johnson, deceased v. McNeilus Truck and Manufacturing, Inc., et al.) | N/A | 1070229 | Alabama | Alabama Supreme Court | REL:12/5/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070229
____________________
Ex parte Indiana Mills & Manufacturing, Inc., and McNeilus
Truck and Manufacturing, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Marcy Johnson, as personal representative of the
estate of James Johnson, deceased
v.
McNeilus Truck and Manufacturing, Inc., et al.)
(Macon Circuit Court, CV-06-139)
SMITH, Justice.
Indiana Mills & Manufacturing, Inc. ("IMMI"), and
McNeilus
Truck
and
Manufacturing,
Inc.
("McNeilus")
1070229
2
(collectively "the petitioners"), petition for a writ of
mandamus directing the Macon Circuit Court to transfer this
action to the Lee Circuit Court on the basis of forum non
conveniens. We grant the petition and issue the writ.
Facts and Procedural History
James
Johnson
worked
for
Sunflower
Waste,
LLC
("Sunflower"),
a
waste-disposal
company
whose
principal
office
is located in Tallapoosa County. On March 7, 2006, James was
driving a garbage truck owned by his employer. While James
was traveling on Marvyn Parkway in Lee County, the raised rear
door of the truck struck an overhead railroad trestle. The
truck crashed, and James was killed when he was ejected
through the front windshield.
The Opelika police and fire departments responded to the
scene of the accident. James's body was transported to the
East Alabama Medical Center, and his death was investigated by
the Lee County coroner. The garbage truck was towed to a
Sunflower facility located in Lee County.
Subsequently, Marcy Johnson, James's widow, on behalf of
James's estate, sued
McNeilus, the manufacturer
of
the garbage
truck, and IMMI, the manufacturer of the seat belts in the
1070229
3
garbage truck, alleging, among other things, that the truck
and its seat belts were defective. Additionally, Marcy sued
three individuals who were employees of Sunflower at the time
of the accident: Jack Conner, a maintenance manager; Russell
Davis, an operations manager; and Van Forrester, a district
manager, alleging that these individual defendants willfully
breached a duty to provide James with a safe work environment
and that they willfully removed, failed to install, or failed
to maintain certain safety devices on the garbage truck and,
in doing so, contributed to James's death. See Ala. Code
1975, § 25-5-11.
The petitioners, joined by Conner, Davis, and Forrester,
filed motions to transfer the case to the Lee Circuit Court
based on the doctrine of forum non conveniens. The trial court
denied the motion, and IMMI and McNeilus petition for mandamus
relief.
Standard of Review
"'The proper method for obtaining review of a
denial of a motion for a change of venue in a civil
action is to petition for the writ of mandamus.' Ex
parte National Sec. Ins. Co., 727 So. 2d 788, 789
(Ala. 1998). A writ of mandamus is appropriate when
the petitioner can demonstrate '(1) a clear legal
right to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a
1070229
4
refusal to do so; (3) the lack of another adequate
remedy; and (4) the properly invoked jurisdiction of
the court.' Ex parte BOC Group, Inc., 823 So. 2d
1270, 1272 (Ala. 2001). Additionally, this Court
reviews mandamus petitions challenging a ruling on
venue on the basis of forum non conveniens by asking
whether the trial court exceeded its discretion. Ex
parte Fuller, 955 So. 2d 414 (Ala. 2006); Ex parte
Verbena United Methodist Church, 953 So. 2d 395
(Ala. 2006). Our review is limited to only those
facts that were before the trial court. Ex parte
Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala.
2002)."
Ex parte Kane, 989 So. 2d 529, 511 (Ala. 2008).
Discussion
Alabama Code 1975, § 6-3-21.1(a), provides when a civil
action must be transferred under the doctrine of forum non
conveniens:
"With respect to civil actions filed in an
appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses,
or in the interest of justice, transfer any civil
action or any claim in any civil action to any court
of general jurisdiction in which the action might
have been properly filed and the case shall proceed
as though originally filed therein. ..."
(Emphasis added.) A party moving for a transfer under §
6-3-21.1 has the initial burden of showing, among other
things, one of two factors: (1) that the transfer is justified
based on the convenience of either the parties or the
witnesses, or (2) that the transfer is justified "in the
1070229
Again, a transfer under 6-3-21.1 is appropriate based on
1
either the convenience of the parties and witnesses or in the
interest of justice. Chief Justice Cobb, in her dissent,
faults this Court for not analyzing the convenience-of-the-
parties-and-witnesses factor, which she argues would not
require a transfer in this case. If this were true, however,
then a discussion of that issue--given this Court's resolution
of the case--would be dicta. Additionally, Chief Justice
Cobb's analysis seems to elevate the convenience-of-the-
parties-and-witnesses factor of § 6-3-21.1 over the interest-
of-justice factor, which she criticizes as requiring the
consideration
of
"subjective"
elements.
However, by including
the "interest of justice" in § 6-3-21.1, the legislature has
deemed this factor as one of two that may be considered when
determining if a transfer under that statute is required.
5
interest of justice." Ex parte Masonite Corp., 789 So. 2d
830, 831 (Ala. 2001); Ex parte National Sec. Ins. Co., 727 So.
2d 788, 789 (Ala. 1998). A party may show that either or both
of these factors require a transfer.
There is no dispute that venue in this case is proper in
both Macon County and Lee County. However, the petitioners
argued in their motion for a change of venue and in their
mandamus petition both that the convenience of the parties and
witnesses required that the case be transferred to Lee County
and that it was in the interest of justice to do so. We need
not analyze the convenience of the parties and witnesses in
this case, because we hold that the interest of justice
requires a transfer.
1
1070229
Nothing in the plain language of the statute implies that one
factor is less worthy of consideration or that it should be
ignored altogether.
6
The "interest of justice" prong of § 6-3-21.1 requires
"the transfer of the action from a county with little, if any,
connection to the action, to the county with a strong
connection to the action." Ex parte National Sec. Ins. Co.,
727
So.
2d
at
790.
Therefore,
"in
analyzing
the
interest-of-justice prong of § 6-3-21.1, this Court focuses on
whether the 'nexus' or 'connection' between the plaintiff's
action and the original forum is strong enough to warrant
burdening the plaintiff's forum with the action." Ex parte
First Tennessee Bank Nat'l Ass'n, [Ms. 1061392, April 11,
2008] ___ So. 2d ___, ___ (Ala. 2008). Additionally, this
Court has held that "litigation should be handled in the forum
where the injury occurred." Ex parte Fuller, 955 So. 2d 414,
416 (Ala. 2006). Further, in examining whether it is in the
interest of justice to transfer a case, we consider "the
burden of piling court services and resources upon the people
of a county that is not affected by the case and ... the
interest of the people of a county to have a case that arises
in their county tried close to public view in their county."
1070229
Chief Justice Cobb also asserts that this Court's
2
decision to order the case transferred to Lee County moves
this case from a county with an average caseload to a county
with a higher caseload. However, no argument or evidence on
this issue was presented to this Court by the parties;
therefore, we may not consider it. In any event, an argument
that a case should not be transferred to a circuit court with
a higher caseload than the circuit court from which the case
is being transferred is negated by the fact that the court
services and resources of a county should not be burdened with
a case that is only remotely connected with that county. Ex
7
Ex parte Smiths Water & Sewer Auth., 982 So. 2d 484, 490 (Ala.
2007). The petitioners in this case are thus required to
demonstrate "'that having the case heard in [Lee] County would
more serve the interest of justice'" than having the case
heard in Macon County. Ex parte First Tennessee Bank, ___ So.
2d at ___ (quoting Ex parte Fuller, 955 So. 2d 414, 416 (Ala.
2006)).
Marcy argues that the interest of justice does not
require a transfer in this case to Lee County because none of
the
parties
reside
or
are
located
in
Lee
County.
Additionally, she notes that neither IMMI or McNeilus "have
business relationships" in Lee County, whereas Sunflower
conducts business in Macon County and Conner resides there.
Finally, litigating the case in Lee County, Marcy contends,
would be less convenient for the parties.
2
1070229
parte Smiths Water & Sewer Auth., supra. Additionally,
citizens should not be required to suspend their lives and
jobs to serve on a jury in a case with only a tenuous
connection to their county merely because their local court
has a lighter caseload. See Ex parte First Family Fin.
Servs., Inc., 718 So. 2d 658, 661 (Ala. 1998) ("'"Jury duty is
a burden that ought not to be imposed upon the people of a
community which has no relation to the litigation."'" (quoting
Ex parte Gauntt, 677 So. 2d 204, 221 (Ala. 1996) (Maddox, J.,
dissenting), quoting in turn Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 508-09 (1947))).
8
We agree that this case certainly has a connection with
Macon County--as Marcy notes, Conner resides there and
Sunflower conducts business there. Additionally, it is true
that none of the parties in this case actually resides in Lee
County. However, we nevertheless hold that the overall
connection between Macon County and this case is weak and that
the connection between the case and Lee County is strong.
First and foremost, the accident occurred in Lee County.
Lee County police and emergency personnel--the Opelika Police
Department and the Opelika Fire Department--responded to the
scene and investigated the accident. Additionally, Gene
Manning, the chief deputy coroner of Lee County, investigated
James's death. He testified in an affidavit that all the work
he performed in connection with the investigation took place
in Lee County. Additionally Danny Cotney, the assistant fire
1070229
The petitioners also contend that numerous witnesses in
3
this case reside in Lee County. Although the petitioners
present affidavits from some of these witnesses, they fail to
present affidavits for many others. See Ex parte ADT Sec.
Servs., Inc., 933 So. 2d 343, 345 (Ala. 2006) (noting that, in
considering a mandamus petition, this Court looks only to
those facts presented to the trial court, and those facts
"must be based upon 'evidentiary material,' which does not
include statements of counsel in motions, briefs, and
arguments").
The Johnsons lived in Montgomery County at the time of
4
the accident; Marcy has since moved to Florida. IMMI is an
Indiana corporation, and McNeilus is located in Minnesota.
Sunflower is located in Tallapoosa County. Davis and
Forrester live in Elmore County.
9
chief of the Opelika Fire Department, testified that the
various records and documents generated by the department are
located in Lee County.
3
On the other hand, the "connection" or "nexus" with Macon
County in this case is weak. No party but Conner resides or
is located there. Additionally, none of the relevant facts
4
in this case actually involve Macon County.
In her dissent, Chief Justice Cobb suggests that this
Court should defer to the trial court's decision. In Ex parte
First Family Financial Services, Inc., 718 So. 2d 658 (Ala.
1998), the plaintiff maintained that a transfer was not
required "upon the proposition that '[t]ransfers under §
6-3-21.1 are within the discretion of the trial judge ... [and
1070229
10
that a] trial court [should] give deference to the plaintiff's
choice of venue." Under the venue system established by the
Alabama Legislature, "the plaintiff has the initial choice of
venue." 718 So. 2d at 659. This "choice" exists because, in
many situations, Ala. Code 1975, § 6-3-7, would allow proper
venue to exist in more than one county. "Reading [§ 6-3-7] in
isolation, one would not discern that the Legislature intended
to limit the plaintiff's choice of forum. However, § 6-3-7
must be read in pari materia with other Code sections dealing
with the same subject, i.e., venue. ... Accordingly, we must
read § 6-3-7 in pari materia with § 6-3-21.1." 718 So. 2d at
659-60.
We held in First Family that the adoption of § 6-3-21.1
"substantially modified the law relating to the venue of civil
actions." 718 So. 2d at 660. Formerly, "'[t]he ability to
transfer cases within Alabama for the convenience of parties
and witnesses and in the interest of justice was denied
Alabama courts ....'" 718 So. 2d at 660 (quoting Robert D.
Hunter, Alabama's 1987 Tort Reform Legislation, 18 Cumb. L.
Rev. 281, 289-90 (1988)). We concluded, however, "that the
Legislature, in adopting § 6-3-21.1, intended to vest in the
1070229
11
trial courts, the Court of Civil Appeals, and this Court the
power and the duty to transfer a cause when 'the interest of
justice' requires a transfer." 718 So. 2d at 660 (emphasis
added).
The plaintiff in First Family argued "that a trial judge
has almost unlimited discretion in such matters." We noted
that although the trial court "has a degree of discretion in
determining whether the factors listed in the statute ... are
in favor of transferring the action," this degree of
discretion is not unlimited and "must be considered in light
of the fact that the Legislature used the word 'shall' instead
of the word 'may' in § 6-3-21.1." 718 So. 2d at 660 (emphasis
added). This statute, we have subsequently noted, is
"compulsory," Ex parte Sawyer, 892 So. 2d 898, 905 n.9 (Ala.
2004), and the use of the word "shall" is "imperative and
mandatory." Ex parte Prudential Ins. Co. of America, 721 So.
2d 1135, 1138 (Ala. 1998) (comparing the use of the word
"shall" in Alabama's interstate forum non conveniens statute,
Ala. Code 1975, § 6-5-430, with its use in § 6-3-21.1).
The accident made the basis of this case occurred in Lee
County, and the accident was investigated by Lee County
1070229
Chief Justice Cobb, citing caselaw prior to the enactment
5
of § 6-3-21.1, suggests that our review of this ruling risks
"expanding this Court's 'piecemeal' appellate jurisdiction."
However, this Court has consistently reviewed rulings on
motions to transfer filed pursuant to § 6-3-21.1 since that
Code section was enacted in 1987. Additionally, this Court
has reviewed rulings on motions to transfer under the common-
law doctrine of forum non conveniens since at least 1957. See
Ex parte Southern Bell Tel. & Tel. Co., 267 Ala. 139, 99 So.
2d 118 (1957). Given the clear mandate of § 6-3-21.1 and this
Court's historic practice, we decline to abandon our review of
rulings on § 6-3-21.1 motions.
12
authorities. We see no need for Macon County, with its weak
connection with this case, to be burdened with an action that
arose in Lee County simply because one of several defendants
resides there. Instead, Lee County clearly has a strong
connection with this case. See Ex parte Verbena United
Methodist Church, 953 So. 2d 395, 400 (Ala. 2006) (holding
that the "weak nexus" with the county in which an action was
filed did not "justify burdening" that county with the trial
of that action; thus, the doctrine of forum non conveniens
required the case be transferred to a county that had "a much
stronger nexus"). We thus conclude that having the case
heard in Lee County would "more serve the interest of
justice." Ex parte First Tennessee Bank, ___ So. 2d at ___.
The trial court therefore exceeded its discretion in refusing
to transfer the case to Lee County.
5
1070229
Additionally, review by petitions for the writ of
mandamus does not offend the maxim that "justice delayed is
justice denied." Alabama law specifically provides that a
party may move for a transfer under § 6-3-21.1, and § 6-3-21.1
was specifically designed to end prior abuse of the legal
process. Justice is not denied when a party successfully
exercises the rights provided it by law--in this case, seeking
the correct disposition of a transfer under § 6-3-21.1.
King v. Russell, 963 F.2d 1301 (9th Cir. 1992), involves
6
claims that were filed in an improper venue; the court cited
Wood v. Santa Barbara Chamber of Commerce, 705 F.2d 1515, 1523
(9th Cir. 1983), in which the appellant claimed that the trial
court should have transferred the case to a proper forum
instead of dismissing it outright. The court noted in Wood
that, under 28 U.S.C. § 1406(a), the trial court had the
option of dismissing the case or transferring it "in the
interest of justice." In determining whether a transfer,
instead of a dismissal, was "in the interest of justice," the
court held that "justice would not have been served" by
transferring a case "to a jurisdiction that [the plaintiff]
purposefully sought to avoid through blatant forum shopping."
13
Chief Justice Cobb in her dissent urges this Court to
adopt a rule requiring parties to demonstrate a significant
likelihood of injustice in order to warrant a change of venue
based on the interest-of-justice factor of § 6-3-21.1.
Although acknowledging that Alabama law does not require such
a showing, Chief Justice Cobb cites several cases in support
of the idea that a party should show a "significant likelihood
of injustice in the absence of the transfer of the case."
However, the decisions cited in her dissent do not appear to
support this assertion. Additionally, it is unclear how the
6
1070229
Neither King nor Wood discussed whether a party, to show that
a transfer is in the interest of justice, must show a
"significant likelihood of injustice" in the absence of the
transfer.
Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209,
1212 (D. Haw. 2002), addressed a federal forum non conveniens
statute and held that the convenience of the parties and
witnesses required a transfer because most of the parties and
witnesses lived in California and hearing the case in Hawaii
was thus inconvenient. The court did not look to whether
there would be a significant likelihood of injustice if the
case were not transferred.
Garza v. Garcia, 137 S.W.3d 36 (Tex. 2004), involves a
Texas statute that specifically requires a determination of
whether a transfer or the refusal to transfer would "work an
injustice" on either the movant or any other party. See Tex.
Civil Practice & Remedies Code § 15.002(b). Our legislature,
in enacting § 6-3-21.1, chose not to include a similar
explicit rule.
Finally, In re Trust Created Under Agreement Dated
September 19, 1983, 469 N.E.2d 768, 772 (Ind. Ct. App. 1984),
involves the interpretation of Indiana's interstate forum non
conveniens statute by the courts of that state, which require
a showing that a "substantial injustice is likely to result"
if a case is tried in that state. However, this decision
contains no analysis as to why Indiana's caselaw requires such
a consideration.
14
new analysis proposed by Chief Justice Cobb would require any
less consideration of "subjective" elements, to which Chief
Justice Cobb objects. Moreover, this proposed limitation to
the interest-of-justice factor has no support in the text of
§ 6-3-21.1; no persuasive authority urges its adoption; and
1070229
15
neither party in this case has discussed this proposed
limitation. We thus see no need to engraft such an analysis
to restrict the application of § 6-3-21.1.
Conclusion
The trial court is directed to transfer the case to the
Lee Circuit Court.
PETITION GRANTED; WRIT ISSUED.
See, Lyons, Woodall, Stuart, Bolin, and Parker, JJ.,
concur.
Murdock, J., concurs in the result.
Cobb, C.J., dissents.
1070229
16
COBB, Chief Justice (dissenting).
I respectfully dissent. I write first to note my
continued concern with this Court's inclination to intrude
into areas properly reserved to the trial court's discretion,
with the added detriment of unduly expanding this Court's
"piecemeal" appellate jurisdiction. Previously, this Court
sought to avoid reviewing cases in such a fashion and quoted
with approval the federal plan of constraining the use of
extraordinary writs:
"'In strictly circumscribing piecemeal appeal,
Congress must have realized that in the course of
judicial decision some interlocutory orders might be
erroneous. The supplementary review power conferred
on the courts by Congress in the All Writs Act is
meant to be used only in the exceptional case where
there is clear abuse of discretion or "usurpation of
judicial power."'"
Ex parte Alabama Power Co., 280 Ala. 586, 589, 196 So. 2d 702,
705 (1967) (quoting Bankers Life & Cas. Co. v. Holland, 346
U.S. 379, 383-84 (1953)(emphasis added)). See also Ex parte
Textile Workers Union of America, 249 Ala. 136, 30 So. 2d 247
(1947).
With respect to the circumstances presented by this case,
it is apparent that the main opinion avoids any conclusion
that under the doctrine of forum non conveniens, Ala. Code
1070229
17
1975, § 6-3-21.1, the trial court exceeded its discretion in
refusing to transfer the case because the facts show that
there is little difference between the forums in convenience
to the parties. That is, the facts do not support the
issuance of the instant writ under the doctrine of forum non
conveniens. The doctrine of forum non conveniens requires the
proponents of a change in venue to show that the proposed
location -- here Lee County -- would be "significantly more
convenient" than the current location -- here Macon County --
a showing that the instant facts do not support. Moreover, in
this situation, the trial court would be well within its
discretion in deferring to the plaintiff's choice of the forum
in which to try the cause. See, e.g., Ex parte Bloodsaw, 648
So. 2d 553 (Ala. 1994); Ex parte Johnson, 638 So. 2d 772 (Ala.
1994); and Ex parte Townsend, 589 So. 2d 711 (Ala. 1991).
Thus, the main opinion shifts its emphasis to whether the
change in venue is warranted in the "interest of justice."
Under Ex parte First Tennessee Bank National Ass'n, [Ms.
1061392, April 11, 2008] ___ So. 2d ___, ___ (Ala. 2008), and
Ex parte Fuller, 955 So. 2d 414, 416 (Ala. 2006), the Court
would then simply weigh factors concerning "justice," such as
1070229
See Bloodsaw, Johnson, and Townsend, supra. See also Ex
7
parte Nichols, 757 So. 2d 374 (Ala. 1999).
18
the connection between the case and the county in which venue
is sought, to decide, entirely subjectively, whether justice
is better served by trying the case in one county than in
another. Unlike the standard articulated in the main opinion,
in which the Court lists such factors as the facts that none
of the parties reside in Lee County and that some of the
parties do conduct business in Macon County before concluding
that, nevertheless, the case must be transferred to Lee County
because the "connection" with that county is stronger than the
"connection" with Macon County, primarily because the accident
and the subsequent investigation of the accident occurred in
Lee County.
In my view, this sort of analysis flies in the face of
the deference this Court once paid to a plaintiff's right to
choose among appropriate forums for the prosecution of his or
her cause, and it further permits this Court to substitute
7
its discretion for that of the trial court. Moreover, the
simple weighing of factors to determine the strength of a
particular forum's connection or the extent that a transfer
would serve justice invites parties to petition this Court for
1070229
19
a writ of mandamus to change between two equally "convenient"
venues in most situations where there are two or more
acceptable venues. I believe that a proper evaluation of the
interest-of-justice factor in § 6-3-21.1 would require the
movant to show a significant likelihood of injustice if the
transfer does not occur before this Court invalidates the
plaintiff's choice of forum and displaces the trial court's
discretion with its own. Accordingly, in order to warrant a
change of venue based on the interest of justice, the movant
should be required to present facts showing a significant
likelihood of injustice in the absence of the transfer of the
case. Although this requirement has not been adopted in this
State, it underlies the rationale of the transfer of, or the
refusal to transfer, a case in numerous decisions in other
jurisdictions. See, e.g., King v. Russell, 963 F.2d 1301,
1304 (9th Cir. 1992)(approving the federal district court's
dismissal of a cause based on improper venue in part because
the plaintiff had been unsuccessful in filing the same claims
in another venue -- "it would not be in the interests of
justice to transfer this case because, among other reasons,
King herself expressed no interest in transfer and because 'of
1070229
20
the fact that the action smacks of harassment and bad faith on
the plaintiff's part in that it appears that she filed it here
after repeatedly losing on at least some similar claims in
California.'"); Wood v. Santa Barbara Chamber of Commerce, 705
F.2d 1515, 1523 (9th Cir. 1983)(approving the federal district
court's refusal to transfer a cause to a venue where personal
jurisdiction did exist because "[j]ustice would not have been
served by transferring Wood's claims back to a jurisdiction
that he purposefully sought to avoid through blatant forum
shopping"); Kawamoto v. CB Richard Ellis, Inc., 225 F. Supp.
2d 1209, 1212 (D. Haw. 2002)(holding generally that a showing
of the relative injustice to the parties was a factor to be
considered in transferring a case under federal law); Garza v.
Garcia, 137 S.W.3d 36 (Tex. 2004)(applying the Texas statutory
requirement that "the transfer of the action would not work an
injustice to any other party"); and In re Trust Created Under
Agreement Dated September 19, 1983, 469 N.E.2d 768 (Ind. Ct.
App. 1984)(noting that a change of venue in the interest of
justice must be based upon a showing that the litigation of
the cause in the state is so inconvenient that substantial
injustice is likely to result). See, generally, C.P. Jhong
1070229
21
Annotation, Construction and Application of Federal Statute
(28 U.S.C.A. § 1406) Providing for Dismissal or Transfer of
Cases for Improper Venue, §§ 22-31, 3 A.L.R. Fed. 467 (1970,
Supp. 2008-2009).
I recognize that none of these cases is precisely on
point with the venue scheme set out in § 6-3-21.1. They do,
however, give examples of what factors might be considered as
a basis for venue decided on the "interest of justice." The
point is that the distinction between a change of venue for
the convenience of the parties and a change of venue in the
interest of justice should be more significant than simply
assessing the relative travel times. A change of venue based
on the "interest of justice" should meet a higher standard,
one that can be plainly and specifically articulated. It is
this Court's responsibility to enunciate such a standard,
based on the statute, which can then be understood and applied
by the trial courts and all practitioners. I believe that the
connection test as employed by the majority here falls short
of the appropriate analysis for changing venue "in the
interest of justice." Although "connectedness" might be one
consideration, the Court should also consider factors such as
1070229
22
the ability of the parties to obtain a fair and timely trial
in the respective venues, the selection of venue for purposes
of harassment or fraud on the court, and the judicial
resources that are available in a particular venue to
adjudicate the cause. That is, the party seeking a change of
venue "in the interest of justice" should be prepared to show
that the denial of the motion for a change of venue will
result in a significant likelihood of injustice.
It is a long-settled maxim of American jurisprudence that
"justice delayed is justice denied." Folsom v. Wynn, 631 So.
2d 890, 898 (Ala. 1993)("This Court recognizes that implicit
in the Judiciary's constitutional requirement to render
services is the requirement that those services be delivered
in a timely manner."). See also Chism v. Jefferson County,
954 So. 2d 1058 (Ala. 2006), and Willis v. State ex rel. Flynt
Oil Co., 290 Ala. 227, 275 So. 2d 657 (1973). The ever
increasing tendency of parties to seek mandamus relief, thus
adding many more months to the adjudicative process, must be
reexamined. In this case, the counties in which this case
would properly be adjudicated are equally convenient to the
parties. Although the courts' relative caseloads were not a
1070229
23
factor argued in the context of this case, this Court's
decision moves a case from a county with an average caseload
to a county with one of the highest caseloads in the State, a
decision that will almost certainly add increased delay to the
resolution of this case. In the future, this factor should
also be considered when this Court acts in "the interest of
justice" to examine a transfer or a refusal to transfer under
§ 6-3-21.1. | December 5, 2008 |
f774b329-481d-4d2c-9cf2-f711940b697d | Orix Financial Services, Inc. v. John Allen Murphy | N/A | 1070996 | Alabama | Alabama Supreme Court | REL: 11/26/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070996
____________________
Orix Financial Services, Inc.
v.
John Allen Murphy
Appeal from Lee Circuit Court
(CV-07-417)
STUART, Justice.
Orix Financial Services, Inc., appeals the order of the
Lee Circuit Court holding the default judgment Orix obtained
against Opelika resident John Allen Murphy in a New York court
void. We reverse and remand.
1070996
When Murphy entered into this transaction, the name of
1
the other party to the note was Orix Credit Alliance, Inc. On
September 26, 2000, Orix Credit Alliance formally changed its
name to Orix Financial Services, Inc. For convenience, the
entity is referred to simply as "Orix" throughout this
opinion.
2
I.
On February 7, 1998, Murphy executed a promissory note
pursuant to which he agreed to pay Orix $67,048. That
1
promissory note contained the following clause:
"As part of the consideration for making the
advance represented by this promissory note, [Orix],
maker(s), and any endorser(s) hereby designate and
appoint Edwin M. Baum, Esq., and C-A Credit Corp.,
both of New York, or either of them, as their true
and lawful attorney-in-fact and agent for them and
in their name, place and stead to accept service of
any process within the State of New York, the party
causing such process to be served agreeing to notify
the other party(ies) at their address indicated
above, or at their last known address, certified
mail, within three days of such service having been
effected. [Orix], maker(s) and any endorser(s)
hereby agree to the EXCLUSIVE VENUE AND JURISDICTION
OF ANY STATE OR FEDERAL COURT IN THE STATE AND
COUNTY OF NEW YORK for all actions, proceedings,
claims,
counterclaims
or
crossclaims
arising
directly or indirectly in connection with, out of,
or in any way related to this promissory note,
whether based in contract or in tort or at law or in
equity, with the sole exceptions that an action to
obtain possession of all or part of the collateral
or any other assets of the maker(s) or endorser(s)
however denominated and equitable proceedings to
enforce the terms of this promissory note, may, in
the sole discretion of [Orix], be brought in a state
or federal court having jurisdiction over the
1070996
3
collateral, and/or any other assets of the maker(s)
or endorser(s) may be located."
(Capitalization in original.)
Murphy thereafter defaulted on the promissory note when
he failed to make the scheduled payments. On December 19,
2006, Orix sued Murphy in the Supreme Court of the State of
New York, New York County. On January 23, 2007, pursuant to
the relevant clause in the promissory note, Orix served the
summons and complaint upon Murphy's designated agent, C-A
Credit Corp., and also mailed copies to Murphy's address in
Opelika, which was the address shown on the promissory note.
C-A Credit maintains that it also forwarded the summons and
complaint it received to Murphy the same day it received them.
Murphy denies receiving any of these mailings.
On May 7, 2007, after failing to receive a response from
Murphy, the New York court entered a default judgment against
Murphy for $31,857. On August 15, 2007, Orix filed a copy of
the default judgment with the Lee Circuit Court pursuant to
the Alabama Uniform Enforcement of Foreign Judgments Act, § 6-
9-230 et seq., Ala. Code 1975. On August 17, 2007, Murphy
filed a motion to stay the domestication of that judgment,
arguing that he had not been properly served with the
1070996
4
complaint and that he had had no knowledge of the New York
action or opportunity to defend himself. After a hearing and
further briefing, the trial court, on January 29, 2008,
entered an order making the following findings:
"1. The note provided by [Orix] for [Murphy] to
sign already contained the name of the designated
agent for [Orix] to serve in the event of default
and was not a matter negotiated by [Murphy].
"2. Under the New York law, i.e., N.Y. C.P.L.R.
§§ 308 and 318 (2007), the effectiveness of the
designated agent expires three (3) years after the
date of the signing of the note, and therefore the
time for the effectiveness of the designation of the
agent expired prior to the filing of the lawsuit.
"3. [Murphy] did not receive any actual notice
that the suit was being filed in New York.
"4. The 'forum selection clause' was not
negotiated by [Murphy].
"5. The distance between the states of New York
and Alabama was too great to be convenient for
[Murphy] to defend the matter and was not fair to
[Murphy].
"6. [Murphy] had insufficient contacts with the
State of New York.
"7. Enforcement of the New York default
judgment in the courts of Alabama through the
domestication process under all of the circumstances
would
be
unfair
to
[Murphy]
and
create
an
injustice."
1070996
5
The trial court concluded by declaring the default judgment
entered by the New York court void for lack of personal
service. After the trial court denied Orix's subsequent
motion to alter, amend, or vacate its judgment, Orix filed its
notice of appeal to this Court.
II.
Murphy's motion to stay the domestication of the default
judgment entered against him by the New York court was the
equivalent of a postjudgment motion made pursuant to Rule
60(b)(4), Ala. R. Civ. P., challenging a judgment as void.
See Ex parte Trinity Auto. Servs., Ltd., 974 So. 2d 1005, 1009
(Ala. Civ. App. 2006) ("Both our Supreme Court and this court
have held that the appropriate procedural mechanism by which
to collaterally attack a foreign judgment on the basis that
the judgment is void for lack of jurisdiction is by a motion
filed pursuant to Rule 60(b)(4)."). In Insurance Management
& Administration, Inc. v. Palomar Insurance Corp., 590 So. 2d
209, 212 (Ala. 1991), we explained that we review de novo a
trial court's ruling on such a motion:
"The standard of review on appeal from the
denial [or granting] of relief under Rule 60(b)(4)
is
not
whether
there
has
been
an
abuse
of
discretion. When the grant or denial of relief
1070996
6
turns on the validity of the judgment, as under Rule
60(b)(4), discretion has no place. If the judgment
is valid, it must stand; if it is void, it must be
set aside. A judgment is void only if the court
rendering it lacked jurisdiction of the subject
matter or of the parties, or if it acted in a manner
inconsistent with due process. Satterfield v.
Winston Industries, Inc., 553 So. 2d 61 (Ala.
1989)."
Additionally, we note that "[t]he validity and effect of a
foreign judgment, of course, are to be determined by the law
of the state in which it was rendered." Morse v. Morse, 394
So. 2d 950, 951 (Ala. 1981) (citing Forbes v. Davis, 187 Ala.
71, 65 So. 516 (1914)).
III.
The trial court held the default judgment entered by the
New York court void for essentially two reasons –– a perceived
lack of due process in the service of process and its belief
that the forum-selection clause in the promissory note was
unenforceable. A review of the relevant New York law,
however, reveals that Murphy was lawfully served and that he
submitted to the jurisdiction of the New York court by signing
a promissory note containing a clause designating New York as
the venue for any and all legal disputes related to that note.
In regard to whether the service of process provided Murphy
1070996
7
complied with due-process requirements, we agree with the
rationale of the United States District Court for the Southern
District of New York, which decided a similar dispute
involving Orix in Orix Financial Services, Inc. v. Kielbasa,
(No. 01 Civ. 1789, Dec. 3, 2007) (S.D.N.Y. 2007) (not
published in F.Supp.2d):
"Service in New York is governed by N.Y. C.P.L.R. §
1
308(3) (2007), which provides, in relevant part,
that service of process may be made upon an
individual 'by delivering the summons within the
state to the agent for service of the person to be
served as designated under N.Y. C.P.L.R. § 318
(2007).'2
"[The defendant] contends that Orix did not
fulfill the requirements of sections 308(3) and 318
of the C.P.L.R. Specifically, [the defendant]
argues that the guaranty, as the writing that
designated C-A Credit as [the defendant's] agent,
did not contain C-A Credit's signed endorsement;
that there is no proof that the guaranty was filed
in the county clerk's office; and that the guaranty
was dated November 1995, more than three years prior
to service of the complaint, and the designation of
an agent remains in effect for only three years
after the execution of the writing that designates
the agent.
"C-A Credit was a valid agent for acceptance of
service of process on [the defendant's] behalf,
despite non-compliance with the provisions of the
C.P.L.R. 'It is well settled that parties to a
contract "may agree to service upon a third person
with
respect
to
litigation
arising
from
the
contract, even where that person is not an agent
authorized under ... C.P.L.R. § 318."' Orix
1070996
8
Financial Services, Inc. v. First Choice Freight
Sys., Inc., No. 03 Civ. 9296 (RMB) ... [not reported
in F.Supp. 2d] (S.D.N.Y. Aug. 1, 2006) (quoting Orix
Financial Services, Inc. v. Baker, 1 Misc. 3d 288,
291, 768 N.Y.S.2d 780 (N.Y.Sup.Ct. 2003); see also
National Equip. Rental v. Szukhent, 375 U.S. 311, 84
S.Ct. 411, 11 L.Ed.2d 354 (1963). Here, it is
undisputed that the guaranty expressly designated
C-A Credit as [the defendant's] agent for acceptance
of service of process in New York. Thus, C-A Credit
was
a
valid
agent,
despite
C-A
Credit's
non-compliance with technical provisions of C.P.L.R.
section 318.
________________
" The guaranty provides, and the parties agree, that
1
this case is governed by New York law.
" Section 318, in turn, states: 'A person may be
2
designated by a natural person, corporation or
partnership as an agent for service in a writing,
executed and acknowledged in the same manner as a
deed, with the consent of the agent endorsed
thereon. The writing shall be filed in the office
of the clerk of the county in which the principal to
be served resides or has its principal office. The
designation shall remain in effect for three years
from such filing unless it has been revoked by the
filing of a revocation, or by the death, judicial
declaration of incompetency or legal termination of
the agent or principal.'"
(Emphasis added.) See Orix Fin. Servs., Inc. v. Baker, 1
Misc. 3d 288, 291, 768 N.Y.S.2d 780 (N.Y. Sup. Ct.
2003)(recognizing that New York courts have held that service
upon a designated agent agreed upon by the parties for the
purpose of litigation arising from a contract dispute is
1070996
9
acceptable); and National Equip. Rental, Ltd. v. Szukhent, 375
U.S. 311 (1963)(recognizing the validity of a provision in a
contract creating agency for service of process in litigation
in New York). Thus, New York law provides for the designation
of an agent for the receipt of process in an action related to
a contract dispute pursuant to the procedure set forth in N.Y.
C.P.L.R. §§ 308 and 318 or within the contract itself. See
also Fashion Page, Ltd. v. Zurich Ins. Co., 50 N.Y.2d 265,
272, 406 N.E.2d 747, 751, 428 N.Y.S.2d 890, 893 (1980) ("A
corporation may appoint an agent to accept service without
observing the formalities necessary to 'designate' an agent
pursuant to C.P.L.R. § 318. Designation is merely a type of
appointment which might, under certain circumstances, offer
special benefits to the corporation or principal. ... In any
event the designation procedure is optional. It is not the
only way of appointing an agent for receipt of process ....").
It is undisputed that the promissory note provided that C-A
Credit could accept service on behalf of Murphy and that C-A
Credit did in fact do so; therefore, service in this case was
proper.
1070996
10
Moreover, Orix submitted evidence to the trial court,
both documentary and in the form of affidavits from personnel
at Orix and C-A Credit, indicating that both it and C-A Credit
sent notice of the action to Murphy's correct address.
Murphy's argument that the otherwise proper service effected
on C-A Credit somehow became improper because he did not
receive notice of the action is not supported by New York law.
See Beckman v. Greentree Sec., Inc., 87 N.Y.2d 566, 570, 663
N.E.2d 886, 888 (1996) ("Due process does not require actual
receipt of notice before a person's liberty or property
interests may be adjudicated; it is sufficient that the means
selected for providing notice was 'reasonably calculated,
under all the circumstances, to apprise interested parties of
the pendency of the action and afford them an opportunity to
present their objections,' (Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 314 [(1950)]).").
We
further
note
that
although
the
trial
court
specifically found that Orix had selected C-A Credit as
Murphy's agent and that Murphy had not negotiated that aspect
of the promissory note, Murphy has wisely chosen not to argue
to this Court that the clause appointing C-A Credit as
1070996
11
Murphy's agent was unconscionable for that reason. We are
aware of no New York caselaw that would support that argument,
and caselaw from the Supreme Court of the United States would
appear to weigh against it. See National Equipment Rental,
Ltd. v. Szukhent, 375 U.S. at 317-18 ("It is argued, finally,
that the agency sought to be created in this case was invalid
because [the designated agent] may have had a conflict of
interest. This argument is based upon the fact that she was
not personally known to the respondents at the time of her
appointment and upon a suggestion in the record that she may
be related to an officer of the petitioner corporation. But
such a contention ignores the narrowly limited nature of the
agency here involved. [The designated agent] was appointed
the respondents' agent for the single purpose of receiving
service of process. An agent with authority so limited can in
no meaningful sense be deemed to have had an interest
antagonistic to the respondents, since both the petitioner and
the respondents had an equal interest in assuring that, in the
event of litigation, the latter be given that adequate and
timely notice which is a prerequisite to a valid judgment.").
1070996
12
Having established that Murphy was properly served via
his designated agent C-A Credit, we now turn to the forum-
selection clause and the issue whether Murphy submitted to the
jurisdiction of the New York court when he signed the
promissory note containing the forum-selection clause. New
York courts generally enforce a forum-selection clause unless
it is shown to be unreasonable. See, e.g., Brooke Group Ltd.
v. JCH Syndicate 488, 87 N.Y.2d 530, 534, 663 N.E.2d 635, 637,
640 N.Y.S.2d 479, 481 (1996) ("Although once disfavored by the
courts, it is now recognized that parties to a contract may
freely select a forum which will resolve any disputes over the
interpretation or performance of the contract. Such clauses
are prima facie valid and enforceable unless shown by the
resisting party to be unreasonable."). Our Court of Civil
Appeals specifically recognized this fact in a similar case
when it stated:
"Specifically, New York courts will enforce an
otherwise valid forum-selection clause as a basis
for
personal
jurisdiction
over
a
nonresident
defendant unless enforcement of the clause would be
"'unreasonable,
unjust,
in
contravention
of
public policy, invalid due to fraud or
overreaching, or it is shown that a trial
in the selected forum would be so gravely
difficult that the challenging party would,
1070996
13
for all practical purposes, be deprived of
its day in court.'
"Premium Risk Group, Inc. [v. Legion Ins. Co.], 294
A.D.2d [345,] 346, 741 N.Y.S.2d [563,] 564 [(2002)].
Under New York law, a defendant challenging the
enforcement of a forum-selection clause bears the
burden of proving a basis for nonenforcement of the
clause. Id."
Ex parte Trinity Auto. Servs., Ltd., 974 So. 2d at 1010-11.
In the present case, Murphy successfully argued to the trial
court that the clause was unreasonable, and therefore
unenforceable, because: (1) he did not negotiate it; (2) it
would be highly inconvenient for him to defend an action in
New York because of the distance between New York and Alabama;
and (3) he had insufficient contacts with New York to warrant
being subject to suit there. The trial court erred, however,
because, under the relevant law, none of these reasons is
sufficient to merit the invalidation of the forum-selection
clause.
Although Murphy did not negotiate the forum-selection
clause in the promissory note, he nevertheless signed the note
and is therefore subject to its terms. As the United States
District Court for the Southern District of New York has
stated:
1070996
14
"A forum selection clause can bind contracting
parties even when the contract in question is a form
contract and not subject to negotiation. See
Carnival Cruise [Lines, Inc. v. Shute], 499 U.S.
[585,] 593, 111 S.Ct. 1522 [(1991)] (enforcing a
forum selection clause written on the backs of
passenger ship tickets, despite the passengers'
objection that they had not been able to bargain
over the tickets' conditions); Design Strategy Corp.
[v. Nghiem], 14 F.Supp.2d [298,] 301, [(S.D.N.Y.
1998)] (refusing to set aside a forum selection
clause contained in a standard employment contract).
By
signing
the
Purchase
Order
Form,
[the
plaintiff's] officers accepted the prerequisites of
doing business with [the defendant], and [the
plaintiff's] complaint that it did not fully
negotiate these conditions is unavailing. 'The
forum selection clause was part of the bargain into
which [the plaintiff] freely entered,' Bense [v.
Interstate Battery Sys. of America, Inc.], 683 F.2d
[718,] 722 [(2d Cir. 1982)], and [the plaintiff] can
not now escape its terms."
Strategic Marketing & Commc'ns, Inc. v. Kmart Corp., 41 F.
Supp. 2d 268, 272 (S.D.N.Y. 1998).
Similarly, our Court of Civil Appeals has previously
reviewed New York law and addressed the arguments that the
distance between Alabama and New York makes defending an
action in New York so inconvenient as to make it unreasonable
to defend one's self in a New York court, and that an Alabama
defendant must have some level of minimum contacts with New
York, even in the presence of a forum-selection clause
identifying New York as the forum for a dispute, to be subject
1070996
Under New York law, a party seeking the invalidation of
2
a forum-selection clause must do more than merely establish
that it would be expensive, time-consuming, and inconvenient
to defend a claim in a New York court. Rather, the party must
show that such a trial "'would be so gravely difficult and
inconvenient that the challenging party would, for all
practical purposes, be deprived of his or her day in court.'"
Bell Constructors, Inc. v. Evergreen Caissons, Inc., 236
A.D.2d 859, 860, 654 N.Y.S.2d. 80, 81 (N.Y. App. Div. 1997)
(quoting Price v. Brown Grocery, Inc., 206 A.D.2d 195, 198,
619 N.Y.S.2d 414, 416 (N.Y. App. Div. 1994)).
15
to suit there and found those arguments to be lacking. In Ex
parte Trinity Automotive Services, Ltd., the Court of Civil
Appeals specifically stated:
"[U]nder New York law, the distance between Alabama
and New York is not sufficient to hold that the
forum-selection clause in the present case is
unenforceable in the absence of any evidence that
[the defendant] was unable to travel to New York for
the purpose of defending itself against [the
plaintiff's] claim."
974 So. 2d at 1013. Similarly, Murphy has presented no
evidence in the present case indicating that he would be
utterly unable to travel to New York to defend himself in an
action in that forum. In that same case, the Court of Civil
2
Appeals stated:
"[A] forum-selection clause can be sufficient under
federal and New York law, without more, to vest a
New York court with jurisdiction over a nonresident
defendant, notwithstanding the defendant's lack of
sufficient contacts with the State of New York or an
independent jurisdictional basis under the New York
1070996
16
long-arm statute. See Burger King Corp. [v,
Rudzewicz], 471 U.S. [462,] 472 n. 14, 105 S.Ct.
2174[, 2182 n. 14 (1982)]."
Ex parte Trinity Auto. Servs., Ltd., 974 So. 2d at 1011 n. 4.
Thus, whether Murphy had some other level of contact with New
York is ultimately irrelevant to a determination of whether
the forum-selection clause should be enforced.
IV.
The trial court held that the default judgment entered
against Murphy by a New York court was void because Murphy had
not been served and because that court did not have personal
jurisdiction over Murphy. However, because the agent Murphy
designated in the promissory note to receive service on his
behalf was properly served and because the promissory note
contained a valid forum-selection clause designating New York
as the appropriate venue for any disputes related to the
promissory note, the trial court's judgment was erroneous.
The default judgment entered against Murphy in New York is
valid and Orix has established that it is now entitled to
domestication of that judgment in Alabama. Accordingly, the
judgment entered by the trial court is hereby reversed and the
1070996
17
case is remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin, and
Parker, JJ., concur.
Murdock, J., concurs specially.
1070996
18
MURDOCK, Justice (concurring specially).
I concur in the main opinion. I write separately to
comment briefly upon the standard of review and to explain my
understanding of the Court's holding today regarding service
of process.
First, I agree with the proposition that appellate review
in this case is de novo, as it typically is in appeals from
the denial of a motion filed under Rule 60(b)(4), Ala. R. Civ.
P. This case, like most such cases, does not involve factual
findings by the trial court based on live testimony of
witnesses that could implicate the ore tenus rule and thereby
require some deference by this Court to the findings of the
trial court. The factual findings of the trial court in this
case were based upon affidavits and documentary evidence,
evidence which this Court is as competent to assess as was the
trial court.
As for the merits of this case, the main opinion states
that "the promissory note provided that C-A Credit could
accept service on behalf of Murphy and that C-A Credit did in
fact do so; therefore, service in this case was proper." ___
So. 2d at ___ (emphasis added). That statement is correct so
far as it goes, but it should not in my opinion be read to
1070996
As the main opinion goes on to note, due process, and not
3
just New York law alone, "'does not require actual receipt of
notice before a person's liberty or property may be
adjudicated; it is sufficient that the means selected for
providing notice was "reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency
of the action and afford them an opportunity to present their
objections."'" ___ So. 2d at ___ (quoting Beckman v.
19
mean that service on C-A Credit alone is all that was required
to make "service in this case ... proper." It is important to
note that the same contractual provision by which Murphy
authorized Orix to deliver process to C-A Credit, instead of
directly to Murphy, coupled that authorization with a
requirement that Orix contemporaneously (within three days)
mail notice of any legal action in a prescribed manner
directly to Murphy. In the present case, however, the record
indicates that this mailing requirement was met.
The main opinion goes on to state (1) that Orix submitted
evidence "both documentary and in the form of affidavits from
personnel at Orix and C-A Credit" indicating that they each
had mailed notice of the lawsuit to Murphy, and (2) that
Murphy's argument that service upon him was "somehow ...
improper because he did not receive [the mailed notices] is
not supported by New York law." ___ So. 2d at ___ (emphasis
added). In the context of the particular contractual
3
1070996
Greentree Sec., Inc., 87 N.Y.2d 566, 570, 663 N.E.2d 886, 888
(1996)) (emphasis added).
20
provisions of the promissory note at issue in this case, I
agree that actual receipt by Murphy is not the condition to
which he and Orix agreed. The provision in the promissory
note for notice to be addressed either to the address shown on
the note or to Murphy's "last known address," and posted via
"certified mail" (with no requirement for a signed, returned
receipt), is more consistent with a contractual obligation by
the plaintiff to mail the notification in a certain manner
than with a contractual condition that the defendant actually
receive that mailing. Having agreed to this method of
notification as a supplement to the formal service of process
upon C-A Credit, Murphy in essence took the risk that it would
be effective. See Beckman v. Greentree Sec., Inc., 87 N.Y.2d
566, 570, 663 N.E.2d 886, 888 (1996) ("The notice procedure
chosen need not eliminate all risk that notice might not
actually reach the affected party."); see also note 3, supra.
I do not read the main opinion as saying that it would
make no difference if the record before us indicated that Orix
and
C-A
Credit
did
not
actually
mail
the
required
notifications to Murphy in the agreed-upon manner. In such an
1070996
21
event, the contractually agreed-upon method of service, formal
service upon a specially designated New York-based agent
coupled with a supplemental notification by mail, would not
have been fully satisfied. Cf. National Equip. Rental, Ltd.
v Szukhent , 375 U.S. 311, 318 (1964) ("A different case would
be presented if [the designated agent] had not given prompt
notice to the respondents, for then the claim might well be
made that her failure to do so had operated to invalidate the
agency.") (quoted with approval in Orix Fin. Servs., Inc. v.
Baker, 1 Misc.3d 288, 290, 768 N.Y.S.2d 780, 782 (2003)).
But that is not the case before us. In the case before
us, affidavits from both Orix and C-A Credit evidence the
actual mailing of the notifications to Murphy. Furthermore,
the record contains a copy of a certified-mail receipt
evidencing the mailing by Orix to the required address. In
response, Murphy's affidavit essentially is limited to an
averment that he did not receive these mailings. I also note
that he did not assert that the address to which Orix and C-A
Credit averred that they mailed the required notices was not
his correct address. Based on this evidence and the above-
described law, I agree that the New York judgment in favor of
Orix should be domesticated. | November 26, 2008 |
bf609b45-888b-44d3-90b6-9c89df23094e | Susan Martin v. Mary S. Battistella | N/A | 1070394 | Alabama | Alabama Supreme Court | rel: 11/26/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070394
____________________
Susan Martin
v.
Mary S. Battistella
Appeal from Tallapoosa Circuit Court
(CV-07-119)
BOLIN, Justice.
Susan Martin, doctor of veterinary medicine, appeals
from a summary judgment in favor of Mary S. Battistella,
doctor of veterinary medicine. We dismiss the appeal.
1070394
2
Facts and Procedural History
On May 27, 2005, Battistella sold her veterinary-medicine
practice in Alexander City to Martin. The sales agreement
quoted a purchase price of $345,000; that price included (1)
$40,000 for equipment, furniture, and fixtures; (2) $282,000
for intangibles (including "goodwill"); (3) $18,000 for
inventory; and (4) $5,000 for a covenant not to compete. The
covenant not to compete provided as follows:
"Provided that [Martin] is not in default under
this Agreement neither [Battistella], whether as a
principal, principal owner, part owner, owner,
interest holder, unit holder, stockholder, partner,
employee,
independent
contractors,
contractor,
agent, or in any other capacity, nor any entity in
which [Battistella] has an interest, will for a
period of five (5) years after the Effective Date,
and within a fifteen (15) mile radius of the
Facility engage in the operation of a veterinary
medical practice or veterinary hospital or otherwise
perform veterinary services."
On June 12, 2007, Battistella filed a declaratory-
judgment action, naming Martin as a defendant and seeking a
determination of the enforceability of the noncompetition
clause because she wanted to open a veterinary health resort.
On July 18, 2007, Martin filed an answer along with a
counterclaim alleging that Battistella would be in breach of
the sales agreement if she opened a new veterinary practice
1070394
3
because Martin would no longer receive the "goodwill" of the
business. Martin later amended her counterclaim, asking the
court to restore her to the condition she would have occupied
had Battistella not breached the sales agreement. Following a
hearing, the trial court, on September 12, 2007, entered an
order declaring the noncompetition clause unenforceable.
Battistella filed a motion for a summary judgment on
Martin's counterclaim. On October 3, 2007, the trial court
held a hearing on Battistella's summary-judgment motion. On
October 10, 2007, the trial court entered a summary judgment
in favor of Battistella on Martin's counterclaim. The trial
court's order provided, in pertinent part:
"[Martin] now alleges that [Battistella's]
opening of a competing business is a breach of the
contract in another manner. Specifically, [Martin]
states
that
she
purchased
the
goodwill
and
intangibles
from
[Battistella]
and
that
[Battistella] has breached the agreement by the
potential opening of her new business which will
reduce the value of the goodwill and intangibles
that [Martin] purchased. She is requesting monetary
damages for the alleged breach.
"[Martin's] claim is without merit. The law
does not allow a restraint of a professional's
ability to practice his/her profession. The Court
cannot allow economic damages against [Battistella]
for her lawful practice of veterinary medicine. As
stated in Cherry, Bekaert & Holland v. Brown, 582
So. 2d 502 (Ala. 1991), the law does not allow a
1070394
4
restraint on the practice of a profession on a
monetary basis. A breach of contract claim dealing
with the sale of goodwill and intangibles in this
manner would simply be a covenant not to compete
called by another name."
On October 25, 2007, Martin filed a motion to alter,
amend, or vacate the judgment, arguing that the trial court
erred in applying Cherry, Bekaert & Holland v. Brown, 582 So.
2d 502 (Ala. 1991), to the facts in this case. Martin also
contended that the trial court failed to address the $5,000
she had paid Battistella in exchange for Battistella's
agreement not to compete. She also included testimony from
Battistella that Battistella had removed from the clinic
before the sale certain items valued at $2,500 that should
have been included in the sale. On November 2, 2007, the
trial court granted Martin's motion in part, ordering that
Battistella repay Martin the $5,000 Martin had paid for the
unenforceable covenant not to compete and that she pay Martin
$2,500 for breaching the contract by removing items from the
practice that were part of the sales agreement. Martin
appeals from that portion of the summary judgment entered in
favor of Battistella.
Standard of Review
1070394
5
"'"This Court's review of a summary judgment is
de novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12.
'[S]ubstantial evidence is evidence of such weight
and quality that fair-minded persons in the exercise
of impartial judgment can reasonably infer the
existence of the fact sought to be proved.' West v.
Founders Life Assur. Co. of Fla., 547 So. 2d 870,
871 (Ala. 1989)."'"
Gooden v. City of Talladega, 966 So. 2d 232, 235 (Ala. 2007)
(quoting Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006)).
Discussion
Martin did not appeal from the trial court's judgment
declaring the noncompetition clause unenforceable. Instead,
Martin argues that simply because the noncompetition clause
was unenforceable the remainder of the sales agreement was not
rendered void. She argues that because Battistella will be
1070394
6
operating a competing business, Martin will no longer receive
the "goodwill" she paid for under the sales agreement because,
she
says,
Battistella's
former
patients
will
go
to
Battistella's new business.
We note § 8-1-1(a), Ala. Code 1975, provides that
"[e]very contract by which anyone restricted from exercising
a lawful profession, trade, or business of any kind otherwise
than is provided by this section is to that extent void." In
Friddle v. Raymond, 575 So. 2d 1038 (Ala. 1991), the parties
were veterinarians who were practicing veterinary medicine
pursuant to a partnership agreement. One of the partners
agreed to sell the other partner his half of the partnership.
Under the terms of the sales agreement, the selling partner
agreed not to compete with the buying partner in the
veterinary-hospital business within six miles of the hospital
at which they had operated their practice for a period of
three years. The selling partner began to practice within the
three-mile area shortly after signing the sales agreement.
The
buying
partner
sued
and
argued
on
appeal
that
veterinarians are not "professionals" and are therefore not
prohibited by § 8-1-1 from entering into restrictive covenants
1070394
7
not to compete. This Court held that veterinarians are
"professionals" and stated
"Although the remaining subsections of § 8-1-1
provide for exceptions to the general rule [stated
in subsection (a)], including an exception for the
sale of the good will of a business, this Court has
stated on numerous occasions that a 'professional'
cannot fall within these statutory exceptions. ...
This point is further supported by the Court's
observation that § 8-1-1 expresses the public policy
of Alabama that contracts that place a restraint on
trade are disfavored '"because they tend not only to
deprive the public of efficient service but also
tend to impoverish the individual."'"
575 So. 2d at 1040.
In Gilmore Ford, Inc. v. Turner, 599 So. 2d 29, 31 (Ala.
1992), this Court defined "goodwill" as follows:
"'Goodwill' has been defined as the advantage or
benefit acquired by a business beyond the mere value
of the capital, stock, funds, or property employed
therein, in consequence of the general public
patronage
and
encouragement
it
receives
from
constant and habitual customers, on account of its
local position, common celebrity, reputation for
skill, affluence, or punctuality, or from other
accidental circumstances or necessities, or even
from ancient partialities or prejudices. See Collas
v. Brown, 211 Ala. 443, 100 So. 769 (1924); see,
also, 38 Am.Jur.2d Goodwill § 1 (1968). Goodwill is
property of an intangible nature and constitutes a
valuable asset of the business of which it is a
part, unless in a particular instance it is too
uncertain and contingent in nature to be appraised.
38 Am.Jur.2d, supra, § 3. It is well settled that
goodwill, being property, is transferable and may be
bought and sold in connection with the sale of a
1070394
8
business; it is not essential, however, that the
contract for the sale of a business expressly
mention the goodwill of the business. Covenants not
to compete that are designed to protect the goodwill
of a business being sold imply a sale of the
goodwill. 38 Am.Jur.2d, supra, §§ 9, 10; Yost v.
Patrick, 245 Ala. 275, 17 So. 2d 240 (1944).'"
Martin cites Salisbury v. Semple, 565 So. 2d 234, 236
(Ala. 1990), in support of her position. In Salisbury, one
doctor agreed to sell his practice to another doctor. The
buying doctor agreed to pay $900,000 in monthly installments
over a period of 11 years. The agreement provided that 30% of
the purchase price was considered to be payment for the
purchase of the goodwill of the practice. The selling doctor
agreed not to compete with the existing practice. The buying
doctor stopped making payments and filed a declaratory-
judgment action seeking a declaration that the purchase
agreement was void and unenforceable because it contained a
covenant not to compete. The buying doctor did not allege
that the covenant not to compete had been violated. Instead,
he alleged that the practice of medicine is a profession, that
the covenant not to compete was therefore unenforceable, and
that, because, he contended, 70% of the purchase price for the
purchase agreement was for the covenant not to compete, he was
1070394
9
obligated to pay only 30% of the sales price. This Court
stated:
"[The buying doctor] admits that the [selling
doctor] has not violated the covenant not to
compete. Furthermore, [the buying doctor] received
[the
selling
doctor's]
medical
practice,
the
fixtures, the optical business, and the goodwill, as
contemplated by the contract. In short, [the buying
doctor] has received all the he bargained for. We
hold that [the buying doctor] ... is now estopped
from refusing to perform his obligation to pay the
agreed purchase price under the contract simply
because it contains a covenant not to compete. We
note that any other result would be particularly
inequitable in view of the fact that the covenant
not to compete was included in the contract a [the
buying doctor's] request."
565 So. 2d at 236.
Martin argues that as was the case in Salisbury, the
remainder of the sales agreement (excluding the noncompetition
clause) is enforceable. She argues that because Battistella
will breach the contract with regard to the sale of the
goodwill of the business when she opens her new clinic, Martin
should be allowed to recover from Battistella based on a
breach of the sales agreement. Martin contends that
Battistella received all that she bargained for, less the
$5,000 for the covenant not to compete, and that Battistella's
new clinic will take away business from Martin, who, under the
1070394
10
sales agreement, was to receive the "goodwill" of the business
for five years.
Battistella argues that Martin's damages are speculative
because, Battistella says, Martin presented no evidence
indicating that she would be damaged by Battistella's new
clinic. Battistella contends that Martin has only speculated
that she may be entitled to damages once Battistella opens her
new clinic and Battistella's former patients may choose to go
to Battistella's new clinic rather than the clinic Martin
purchased from Battistella. Martin argues that Battistella
impaired the goodwill of the clinic by building a new clinic
and that that portion of the purchase price allocated to
goodwill should be the amount of her damages. "Total
destruction of the goodwill is not to be presumed from the
mere breach of the contract not to compete; hence, it has been
held erroneous to base a recovery on an amount representing
the portion of the purchase price regarded as having been paid
for the goodwill, in the absence of evidence that such amount
corresponds with the actual loss sustained." Annot. 127
A.L.R. 1152 (1940).
1070394
11
In Howard v. Taylor, 90 Ala. 241, 8 So. 36 (1890), the
defendant sold the plaintiff his bar and its fixtures,
together with the goodwill of the business, an unexpired lease
on a house out of which the business was operated, and an
agreement by the defendant not to carry on the same business
at any other place in town. The defendant then started a
competing business, and the plaintiff sued. The trial court
declared that among the elements of damages might be loss of
profits, if there were evidence from which such amount might
be ascertained with reasonable certainty, and the diminution
of the value of the property sold. However, this Court held
that it was error for the trial court to instruct the jury
that the plaintiff was entitled to recover the difference
between the value of the fixtures, together with the right to
lease the house, and the agreed-upon sales price, because such
an instruction was based upon the theory that total
destruction of goodwill necessarily resulted from the breach
of contract and the incorrect assumption that the mere fact
that because the defendant was engaged in the same business in
the same town the plaintiff suffered damage to the extent
indicated without proof of actual injury and its extent. The
1070394
12
Court stated: "[A] violation of the promise not to engage in
the same business does not necessarily work the total
destruction of the good-will nor deprive plaintiff wholly of
its enjoyment and benefit." 90 Ala. at 245, 8 So. at 38.
In the present case, Martin's damages are speculative in
nature. There is nothing in the record to show that any loss
or harm to Martin has occurred, because Battistella has not
yet opened her clinic. In her original counterclaim, Martin
stated that Battistella's alleged breach of the sales
agreement caused her "significant monetary damages." However,
the only particularized description of those damages appears
in Martin's amended counterclaim, in which she states:
"If this Court declares paragraph #27 Covenant
Not to Compete null and void as requested in
Plaintiff's Complaint for Declaratory Judgment, the
Good Will purchased by [Martin] from the Plaintiff
in the amount of $282,000.00 is a loss. ... The
market value of the practice is based upon what it
will earn in the future, which is based on historic
data and page 13 'Intangible Assets' primarily
refers to Goodwill, blue sky, etc. ... [I]ncluded in
this is a Veterinary Medical Practice, the market
location, continuity of service of place and name,
competition or lack of it, low rate of client
turnover, reputation for quality medical care, or
any other thing that established or particular
veterinary practice as 'the place where it is
preferable to do business,' can be considered
contributing to the intangible asset value. Dr.
Battistella would be competing against [Martin] at
1070394
13
her new address, 8610 Kowaliga Road, Eclectic,
Alabama, which is 13.9 miles from Wayside Animal
Hospital and within the fifteen mile radius of the
Covenant Not to Compete. [Martin] will suffer
damage[]
each
time
Dr.
Battistella
provides
Veterinarian services to clients of Wayside Animal
Hospital that Dr. Battistella sold [Martin] in the
Agreement of Sale. This will continue until in the
expiration of the Covenant Not to Compete expires on
June 30, 2010."
Martin makes a similar statement in her brief to this Court on
appeal:
"Obviously, Dr. Battistella's new clinic is
going to take away business from Dr. Martin. The
goodwill Dr. Martin was to receive for five (5)
years from Dr. Battistella, while she was not
competing with her is now gone. Dr. Battistella's
old clients will go to her new office and reduce the
retention of clients."
Martin's brief at 21. Thus, Martin argues that she expects to
lose business once Battistella opens her facility. However,
she has not presented this Court with any evidence to indicate
that Battistella's facility had even opened or that Martin has
lost any clients or suffered any monetary damages in
anticipation of that opening. In fact, when asked during her
deposition whether she had, at that time, "lost any patients
or income as a result of Mary's potential opening," she
responded that she did not know. When asked whether she had
suffered significant damage as alleged in her counterclaim,
1070394
14
she repeatedly responded that she did not know. From this
testimony and the arguments in the briefs, it appears that
Martin's breach-of-contract claim is based on the expectation
of a future event. "Ripeness is defined as '[t]he
circumstance existing when a case has reached, but has not
passed, the point when the facts have developed sufficiently
to permit an intelligent and useful decision to be made.'" Ex
parte Safeway Ins. Co. of Alabama, Inc., [Ms. 1061613,
February 29, 2008] So. 2d , n. 5 (Ala.
2008)(quoting Black's Law Dictionary 1353 (8th ed. 2004)).
This case has not reached that point as Martin as only
speculated as to what her damages may be.
"Damages can be awarded only where they are reasonably
certain and not based upon speculation." Industrial Chem. &
Fiberglass Corp. v. Chandler, 547 So. 2d 812, 820 (Ala. 1988).
Accordingly, because Martin's breach-of-contract claim is not
ripe, the trial court was without jurisdiction to review her
counterclaim at this time, and the appeal is dismissed.
APPEAL DISMISSED.
Cobb, C.J., and See, Lyons, Stuart, Smith, Parker, and
Murdock, JJ., concur.
Woodall, J., dissents.
1070394
15
WOODALL, Justice (dissenting).
As the trial court held, Dr. Battistella may lawfully
resume the practice of veterinary medicine. If she chooses to
do so, Dr. Martin, as the trial court correctly held, will be
entitled to no economic damages as a matter of law.
Consequently, I would affirm the summary judgment in favor of
Dr. Battistella. Therefore, I respectfully dissent from the
dismissal of this appeal. | November 26, 2008 |
a49b1e37-687c-4541-8ec9-dc6e4db7e008 | Ex parte Jimmy Davis, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jimmy Davis, Jr v. State of Alabama) | N/A | 1071293 | Alabama | Alabama Supreme Court | Rel: 11/26/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071293
_________________________
Ex parte Jimmy Davis, Jr.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jimmy Davis, Jr.
v.
State of Alabama)
(Calhoun Circuit Court, CC-93-534.60;
Court of Criminal Appeals, CR-03-2086)
WOODALL, Justice.
The petition for the writ of certiorari is denied.
1071293
2
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of
Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782,
280 So. 2d 155 (1973).
WRIT DENIED.
See, Lyons, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Murdock, J., dissents.
Cobb, C.J., recuses herself. | November 26, 2008 |
968614eb-f3a8-4867-a10b-697838c0ad0c | Ex parte Alabama Department of Transporation. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Russell Petroleum, Inc. v. Alabama Department of Transportation) | N/A | 1070721 | Alabama | Alabama Supreme Court | Rel: 10/24/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1070721
_________________________
Ex parte Alabama Department of Transportation
PETITION FOR WRIT OF MANDAMUS
(In re: Russell Petroleum, Inc.
v.
Alabama Department of Transportation)
(Montgomery Circuit Court, CV-05-2534)
On Application for Rehearing
WOODALL, Justice.
APPLICATION OVERRULED; NO OPINION.
See, Lyons, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., and Murdock, J., dissent.
1070721
This case was decided on original submission by a
1
division on which I do not sit. The application for
rehearing, however, was considered by the entire Court.
2
MURDOCK, Justice (dissenting).
I respectfully dissent.
1
The opinion on original submission relies in part upon
the decision of this Court in Ex parte Alabama Department of
Transportation, 978 So. 2d 17 (Ala. 2007) ("Good Hope"). I
concurred in this Court's opinion in Good Hope. Were I voting
in that case today, however, I would dissent as to Part III of
the Court's opinion, "Proper Parties." Specifically, I would
vote to remand the case for the trial court to consider
whether to allow the plaintiff to amend the complaint to add
a proper defendant. There was no statute of limitations or
other temporal bar to bringing a claim against a properly
named party in Good Hope. Based on the position I outlined
recently in my dissenting opinion in Cadle Co. v. Shabani,
[Ms. 1070116, Sept. 5, 2008] ___ So. 2d ___, ___ (Ala. 2008),
I see no reason why the trial court in Good Hope should not
have been given the opportunity to consider whether to allow
an amendment to the complaint in that case.
Aside from the payment of any necessary filing fee,
whether a trial court has subject-matter jurisdiction over an
1070721
3
action depends on whether the complaint states a claim, of a
type and against a defendant, over which the trial court has
subject-matter jurisdiction. In the present case, as in Good
Hope, the attempt to amend the complaint to cause it to do
exactly
that
comes
before
the
applicable
statute
of
limitations has run. For the reasons articulated in my
special writing in Cadle, ___ So. 2d at ___, I see no
persuasive reason for not allowing the plaintiff to amend the
complaint already on file with the trial court, thereby making
that complaint one over which the trial court has subject-
matter jurisdiction, rather than requiring the plaintiff to
initiate an entirely new action. | October 24, 2008 |
ff303e42-5edf-4920-a3a1-7ac4c46d4c51 | Ex parte State of Alabama. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: State of Alabama v. Dennis Lee Jones) | N/A | 1070536 | Alabama | Alabama Supreme Court | REL: 11/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070536
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama
v.
Dennis Lee Jones)
(Jefferson Circuit Court, CC-06-1996)
SMITH, Justice.
The State of Alabama seeks a writ of mandamus directing
Judge Tommy Nail to vacate his order suspending the
confinement portion of the split sentence he imposed upon
Dennis Lee Jones's conviction. We deny the petition.
1070536
The Commission was established by the legislature in
1
2000. Act No. 2000-596, Ala. Acts 2000, codified at §§ 12-25-
1 to -12, Ala. Code 1975.
2
Facts and Procedural History
This petition for the writ of mandamus involves the
Alabama Sentence Reform Act of 2003. Act No. 2003-354, Ala.
Acts 2003. As amended by Act No. 2006-312, Ala. Acts 2006,
the Alabama Sentence Reform Act of 2003 is codified at §§ 12-
25-30 to -38, Ala. Code 1975 ("the Act"). Section 12-25-31(a)
states the legislature's conclusion that the following are
necessary for the provision of "a fair, effective, and
efficient criminal justice system":
"(1) Voluntary sentencing standards used to
guide judicial decision makers in determining the
most appropriate sentence for convicted felony
offenders.
"(2) The abolition of traditional parole and
good time credits for convicted felons.
"(3)
The
availability
of
a
continuum
of
punishment options."
Section
12-25-34
directed
the
Alabama
Sentencing
Commission ("the Commission") to develop statewide voluntary
1
sentencing standards and to present those standards to the
legislature over a three-year period beginning in 2004. On
September 30, 2005, the Commission adopted the "initial
1070536
On the date this opinion was released, a copy of those
2
standards
and
worksheets
could
be
found
at:
http://sentencingcommission.alacourt.gov
(as
visited
on
November 21, 2008; the material quoted in this opinion from
those standards and worksheets is available in the case file
of the clerk of the Supreme Court).
3
voluntary sentencing standards" (hereinafter "the standards,"
"the initial standards,"
or
"the
voluntary
sentencing
standards"),
along
with
accompanying
worksheets
and
instructions. See § 12-25-34(a)(3); § 12-25-34.1. The
legislature approved the initial standards, along with the
accompanying worksheets and instructions, for implementation
effective October 1, 2006. § 12-25-34.1, Ala. Code 1975.
According to § 12-25-34(a)(4), the initial standards are
scheduled to be replaced by the "voluntary truth-in-sentencing
standards," which the Commission is to present for approval
during the 2009 regular session of the Alabama Legislature; if
approved, the voluntary truth-in-sentencing standards will be
effective October 1, 2009.
The general instructions for the initial standards and
the accompanying worksheets state that the initial standards
"cover the 26 most frequently sentenced offenses and 87% of
sentenced cases." Initial Voluntary Sentencing Standards &
Worksheets 22 (2006). If an offense is covered by the
2
1070536
4
initial
standards,
the
applicable
worksheets
must
be
completed. § 12-25-35, Ala. Code 1975. Specifically, there
are "three sets of worksheets and prison sentence length
tables that divide the covered offenses into three offense
types designated property, drug, and personal offenses."
Initial Voluntary Sentencing Standards & Worksheets 22.
"For each offense type, there is an In/Out Worksheet
and a Sentence Length Worksheet. Each sheet has a
set of statistically relevant sentencing factors
specific to each offense type. Examples of factors
include:
most
serious
current
offense,
other
offenses being sentenced at the current sentencing
event, prior convictions, previous incarcerations,
juvenile/youthful offender adjudications, etc. The
worksheets will result in a score that is calculated
based on the information provided for each factor.
"....
"The
In/Out
Worksheet
produces
a
score
that
recommends either a prison or a non-prison sentence.
The Sentence Length Worksheet score tells the judge
what sentence range (in months) is recommended based
on the defendant’s characteristics."
Id. at 122. Thus, each offender sentenced under the initial
standards is given a sentence-disposition recommendation
(prison or non-prison) and a sentence-length recommendation.
Although the sentencing court must "consider" the initial
standards and the worksheets, the court may decline to follow
the recommendations resulting from the application of the
1070536
The case-action summary does not indicate that Jones
3
admitted to violating § 13A-12-250. However, the petitioner
and the respondents (Judge Nail and Jones) assume that Jones
did so, and portions of the transcript of the hearing at which
Jones entered his plea suggest that he did.
The instructions state that "[w]orksheets must be
4
completed and considered when the 'most serious offense' at a
sentencing event is a worksheet offense." Initial Voluntary
Sentencing Standards & Worksheets 26. Unlawful distribution
of a controlled substance is a Class B felony. § 13A-12-
211(b), Ala. Code 1975. Failure to affix tax stamps is a
Class C felony. § 40-17A-9(a), Ala. Code 1975. Therefore, in
Jones's case, the unlawful-distribution charge was the "most
5
initial standards and instead impose a sentence "outside the
voluntary sentencing standards in accordance with existing
law." § 12-25-35(c), Ala. Code 1975.
In the underlying case, the grand jury indicted Jones on
charges of the unlawful distribution of clonazepam, a
controlled substance, in violation of § 13A-12-211, Ala. Code
1975, within a three-mile radius of a school, in violation of
§ 13A-12-250, Ala. Code 1975, and failure to affix tax stamps,
a violation of § 40-17A-4, Ala. Code 1975. On November 5,
2007, Jones pleaded guilty, without a plea agreement, to
violating § 13A-12-211 and § 40-17A-4.
3
A violation of § 13A-12-211 is a Class B felony and a
"covered offense" under the initial standards; consequently,
the worksheets were completed for Jones. The instructions
4
1070536
serious offense."
6
for the in/out worksheet for a drug offense recommend "prison"
if the in/out score is eight or more. Jones's in/out score
was 14; therefore, the in/out worksheet recommended "prison"
for Jones.
The in/out worksheet has three recommended alternatives
of sentence disposition if a recommendation of prison results
from the completion of the worksheet: "Department of
Corrections," "DOC at Community Corrections," or "DOC Split
Sentence."
Initial
Voluntary
Sentencing
Standards
&
Worksheets 35-36. The instructions state as follows regarding
those alternatives:
"Several prison alternatives are provided.
"Department of Corrections should be checked if the
sentence is a straight prison sentence.
"DOC at Community Corrections should be checked if
the offender is sentenced to DOC and ordered to a
community corrections program.
"DOC Split Sentence should be checked if the
sentence is a split sentence. Any split to be
served in DOC or DOC Community Corrections is
considered a prison sentence.
"The sentence disposition type should be checked
even if it is not consistent with the recommended
disposition. This information will be useful for
1070536
The list of scores on the Prison Sentence Length Ranges
5
Table is from "actual cases analyzed by the Alabama Sentencing
Commission in developing the worksheets and standards."
Initial Voluntary Sentencing Standards & Worksheets 32.
The three columns under the "Total Sentence" heading
6
"list the recommended sentence ranges from which a sentence
may be chosen." Initial Voluntary Sentencing Standards &
Worksheets 32. The three columns under the "Time to Serve On
Split"
heading
"list
the
recommended
ranges
for
the
incarceration portion of a split sentence in the event the
judge chooses to impose a split sentence." Id.
7
possible
modification
of
the
worksheet
recommendations."
Initial Voluntary Sentencing Standards & Worksheets 36
(emphasis in original).
The instructions state that "[w]here Prison is the
sentence disposition on the In/Out Worksheet, the prison
sentence must be chosen from within the recommended range for
the corresponding score on the Prison Sentence Length Ranges
Table ...." Initial Voluntary Sentencing Standards &
Worksheets 27. Jones's score on the prison-sentence-length
worksheet for a drug offense was 199. The Prison Sentence
5
Length Ranges Table recommends the number of months--
designated low, mid, and high--to serve for the "Total
Sentence" and the "Time to Serve On Split." For Jones's
6
score of 199, the recommendations are as follows:
1070536
8
"Total Sentence
Time to Serve On Split
"Low Mid High
Low Mid High
"45 87 130
24 30
36."
Judge Nail sentenced Jones to serve 5 years (60 months);
that sentence was split, and Jones was to serve 24 months in
the penitentiary followed by 2 years on supervised probation.
Judge Nail then "probated" the "split portion of [Jones's]
sentence ... condition[ed] on [the] completion of [an]
alternate sentencing plan." State's brief, Exhibit B. Judge
Nail cited Soles v. State, 820 So. 2d 163 (Ala. Crim. App.
2001), in support of his decision to probate the confinement
portion of Jones's split sentence.
The State petitioned the Court of Criminal Appeals for a
writ of mandamus directing Judge Nail to set aside the
sentence and "to enter a sentence consistent with either the
Initial Voluntary Sentencing Standards or to sentence under
applicable law without regard to the Sentencing Standards."
State's brief, p. 6. In an unpublished order, the Court of
Criminal Appeals denied the petition. Jones v. State (No. CR-
07-0293, Jan. 7, 2008), ___ So. 2d ___ (Ala. Crim. App. 2008).
The State has filed a similar petition in this Court.
1070536
9
Standard of Review
"Our review of a decision of the Court of
Criminal Appeals on an original petition for a writ
of mandamus is de novo. Rule 21(e)(1), Ala. R. App.
P.; Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003).
The standard for issuance of a writ of mandamus is
well settled:
"'A
writ
of
mandamus
is
an
extraordinary remedy, and is appropriate
when the petitioner can show (1) a clear
legal right to the order sought; (2) an
imperative duty upon the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) the properly invoked jurisdiction
of the court.'
"Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272
(Ala. 2001) (citing Ex parte Inverness Constr. Co.,
775 So. 2d 153, 156 (Ala. 2000))."
Ex parte McCormick, 932 So. 2d 124, 127-28 (Ala. 2005).
Discussion
The State contends that the sentence imposed on Jones is
an illegal sentence because, the State argues, it complies
with neither the initial standards nor existing law outside
the initial standards. Citing § 12-25-35(c) and (f), Ala.
Code 1975, Judge Nail and Jones contend that because Judge
Nail indicated that he sentenced Jones under the initial
standards, this Court does not have jurisdiction to consider
1070536
Section 19.2-298.01.F provides: "The failure to follow
7
any or all of the provisions of this section or the failure to
follow any or all of the provisions of this section in the
prescribed manner shall not be reviewable on appeal or the
basis of any other post-conviction relief."
10
the State's petition challenging the legality of Jones's
sentence.
Generally "[t]he State may file a mandamus petition
challenging an illegal sentence." State v. Monette, 887 So.
2d 314, 315 (Ala. Crim. App. 2004) (citing Smith v. State, 447
So. 2d 1334 (Ala. 1984)). Section § 12-25-35(f) provides:
"Failure to follow any or all of the provisions of this
section, or failure to follow any or all of the provisions of
this section in the prescribed manner, shall not be reviewable
on appeal or the basis of any other post-conviction relief."
The
initial
standards were patterned after Virginia's
Sentencing Guidelines, and § 12-25-35(f) is nearly identical
to § 19.2-298.01.F, Va. Code Ann. See Initial Voluntary
7
Sentencing
Standards
&
Worksheets
124
("[The
initial
standards] were patterned after Virginia's guidelines and are
voluntary and not subject to appellate review."). Virginia's
courts
have
interpreted
§ 19.2-298.01.F as permitting
appellate review of a sentence imposed under Virginia's
1070536
11
guidelines for the limited purpose of determining if the
sentence is within the range recommended by the those
guidelines. In Hunt v. Commonwealth, 25 Va. App. 395, 404-05,
488 S.E.2d 672, 677 (1997), the Court of Appeals of Virginia
stated:
"The sentencing guidelines are not binding on
the trial judge. Belcher v. Commonwealth, 17 Va.
App. 44, 45, 435 S.E.2d 160, 161 (1993). Rather,
they are a tool designed to assist the judge in
fixing an appropriate punishment. Id. It is
well-settled that '[i]f the sentence was within the
range set by the Legislature [for the crime with
which the defendant was convicted], an appellate
court will not interfere with the judgment.' Hudson
v. Commonwealth, 10 Va. App. 158, 160-61, 390 S.E.2d
509, 510 (1990)."
Thus, under Virginia's corresponding provision to § 12-35-
25(f), Ala. Code 1975, an appellate court's review of a
sentence imposed under the initial standards is "limited to
whether the sentence fell within the permissible statutory
range." Smith v. Commonwealth, 26 Va. App. 620, 626, 496
S.E.2d 117, 120 (1998).
In the present case, the State acknowledges that the
total sentence Judge Nail imposed--5 years--and the time Jones
was ordered to serve on the split--24 months--complied with
the recommended sentence ranges of the initial standards.
1070536
Specifically, the State argues that if Jones had been
8
sentenced outside the standards and in accordance with
existing law, he would have faced a minimum prison sentence of
25 years. A 25-year sentence would make Jones's sentence
ineligible for consideration under Alabama's Split-Sentence
Act, § 15-18-8, Ala. Code 1975, which authorizes sentencing
courts to split certain sentences of not more than 20 years.
12
However, the State argues that Judge Nail did not have
authority under the initial standards to suspend or probate
the confinement portion of the split sentence. Therefore, the
State contends, the sentence is not a sentence under the
initial standards; instead, it argues, the sentence is, in the
language
of
§
12-35-25(c),
"outside
the
standards."
Consequently, the State contends that this Court has
jurisdiction to consider whether the sentence imposed on Jones
is "in accordance with existing law."8
In
arguing
that
the
sentence
imposed
on
Jones's
conviction is outside the initial standards but not in
accordance with existing law, the State seeks to avoid
application of the bar on appellate review in § 12-25-35(c),
Ala. Code 1975, which provides:
"In any felony case in which the trial court imposes
a
sentence
that
departs
from
the
voluntary
standards, and sentences outside the voluntary
sentencing standards in accordance with existing
law, the court may provide a brief written reason
for the departure. Neither the departure nor the
1070536
13
reason stated for the departure shall be subject to
appellate review ...."
The flaw in the State's argument, however, is that the initial
standards in fact authorized the sentence imposed; therefore
Jones's sentence is not "outside the standards."
By suspending the confinement portion of Jones's split
sentence, Judge Nail imposed a "reverse split" sentence. See
Ex parte McCormick, 932 So. 2d at 139 n.18 ("In a 'reverse
split' sentence, the sentencing court orders a defendant to
serve the probationary period of the split sentence first,
with the period of incarceration to follow."). As noted,
Judge Nail relied on Soles v. State, supra, in which the Court
of Criminal Appeals unanimously held that the Split-Sentence
Act, § 15-18-8, Ala. Code 1975, "allows a trial court to
suspend a sentence imposed pursuant to the school/housing
enhancements [in §§ 13A-12-250 and 13A-12-270, Ala. Code 1975]
notwithstanding that those provisions disallow probation."
820 So. 2d at 165. In Ex parte McCormick, 932 So. 2d at 139,
which Judge Nail cites in his brief to this Court, we held
that the authority of a sentencing court under § 15-18-8(c)
"'to suspend that portion of the minimum sentence that remains
[under § 15-18-8(a)] and place the defendant on probation'"
1070536
14
also includes "the authority to suspend the 3-year minimum
term of confinement required by § 15-18-8(a)(1) for sentences
of more than 15 years but not more than 20 years" (quoting §
15-18-8(c), Ala. Code 1975).
The State contends, however, that the initial standards
deny a sentencing court the authority to suspend the
confinement portion of a split sentence imposed under the
initial standards. In support of that contention, the State
cites the 2007 Judges' Sentencing Reference Manual published
by the Commission. Specifically, page 78 of that manual
states that if the in/out worksheet recommends "prison," the
sentencing court is "[n]oncompliant if entire sentence is
suspended."
In this case, however, Judge Nail did not suspend the
entire five-year prison sentence. Rather, he suspended the
24-month confinement portion of the split sentence--i.e., he
essentially imposed a reverse split sentence. The Alabama
Sentence Reform Act of 2003 and the initial standards
expressly incorporate the Split-Sentence Act, § 15-18-8, Ala.
Code 1975. Section 12-25-32(2)b. of the Act lists "[a] split
sentence pursuant to Section 15-18-8" as an "intermediate
1070536
15
punishment" that is available to sentencing courts using the
initial standards. Moreover, the instructions for completing
the worksheets that accompany the initial standards state:
"Where Prison is the sentence disposition on the
In/Out Worksheet, the prison sentence must be chosen
from
within
the
recommended
range
for
the
corresponding score on the Prison Sentence Length
Ranges Table for the most serious offense worksheet
offense type.
"....
"When choosing a sentence from the recommended
sentence range, the sentence chosen must not be less
than the statutory sentences specified in Section
13A-5-6(a)(1)-(3), provided, however, the minimum
sentence may still be 'split' pursuant to Section
15-18-8.
"1.
For a Class A felony, the minimum
sentence imposed must be at least 120
months.
"2.
For a Class B felony, the minimum
sentence imposed must be at least 24
months.
"3.
For a Class C felony, the minimum
sentence imposed must be at least 12
months and 1 day."
Initial Voluntary Sentencing Standards & Worksheets 27-28
(emphasis added).
As noted, the split sentence imposed by Judge Nail was 24
months, which was within the sentence range recommended by the
1070536
We note that the 24-month sentence of confinement was
9
consistent with the 2-year minimum required under § 13A-5-
6(a)(1)-(3), Ala. Code 1975, for a Class B felony.
16
Prison Sentence Length Ranges Table in the initial standards
and which was compliant with the worksheet instructions quoted
above. Additionally, page 78 of the manual cited by the
9
State specifically states that if the "In/Out" recommendation
is prison, a reverse split is "[c]ompliant if within sentence
range." Thus, the sentence that Judge Nail imposed was not
outside the initial standards and was within the recommended
ranges of the initial standards. Consequently, our review of
the sentence can go no further. See § 12-35-25(c) and (f),
Ala. Code 1975.
Conclusion
The petition is denied.
PETITION DENIED.
Cobb, C.J., and See, Woodall, and Parker, JJ., concur. | November 21, 2008 |
55a28b87-4488-4438-ab04-ebfaa3a547fa | Ex parte Cynthia Davis and Suzann Isaacs. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: The estate of Natasha Lee, by and through its personal representative David N. Cutchen v. Jefferson Metropolitan Healthcare Authority et al.) | N/A | 1060734 | Alabama | Alabama Supreme Court | Rel: 11/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1060734
____________________
Ex parte Cynthia Davis and Suzann Isaacs
PETITION FOR WRIT OF MANDAMUS
(In re: The estate of Natasha Lee, by and through its
personal representative David N. Cutchen
v.
Jefferson Metropolitan Healthcare Authority et al.)
(Jefferson Circuit Court, CV-06-2508)
PARKER, Justice.
The petitioners, Cynthia Davis and Suzann Isaacs, are
Jefferson County sheriff's deputies who claim sovereign
immunity in a wrongful-death action brought against them and
1060734
Other named defendants sued by the estate, but not at
1
issue in this petition, included the Jefferson Metropolitan
Healthcare Authority, Prison Health Services, 3 doctors, and
at least 10 nurses.
2
others by the estate of Natasha Lee ("the estate"), by and
1
through its personal representative David N. Cutchen. On
October 23, 2006, the trial court granted Davis and Isaacs's
motion to dismiss the complaint against them based on the
doctrine of sovereign immunity and gave the estate 21 days to
file an amended complaint. The estate filed an amended
complaint on November 13, 2006, which included a wrongful-
death claim and a 42 U.S.C. § 1983 claim alleging deliberate
indifference to Lee's serious medical needs. Davis and Isaacs
again moved for a dismissal, arguing that the amended
complaint, filed more than two years after Lee's death, is
time-barred and could not relate back to the initial
complaint, which had been dismissed as to Davis and Isaacs on
the basis of sovereign immunity. Sovereign immunity is a
jurisdictional bar and, Davis and Isaacs argue, the trial
court had no authority to do anything with the initial
complaint other than to dismiss it, i.e., it had no authority
to allow the estate 21 days to file an amended complaint. The
trial court denied their motion to dismiss, and Davis and
1060734
3
Isaacs petitioned this Court for a writ of mandamus ordering
the trial court to dismiss the wrongful-death action and the
§ 1983 claim asserted against them in the amended complaint.
This Court ordered answer and briefs, and after examining the
answer and briefs, we now grant the petition and issue the
writ of mandamus.
I. Background
Lee, a 32-year-old female, was placed in the Jefferson
County jail on March 19, 2004, where she was being held
pending the hearing of federal charges against her in the
United States District Court for the Northern District of
Alabama. The estate alleges that Lee's medical records, the
information provided during the intake and screening, and
other documentation in her medical file contain multiple
references to the fact that Lee suffered from Graves' disease
and other disorders and that she required medication for these
conditions. The medications she had been taking include
propylthiouracil ("PTU"), atenolol, Inderal, Prozac, and
trazadone.
Lee's prescription for PTU,which she was to take orally
three times daily for seven days, ran out on or about April 9,
1060734
4
2004, and was not reordered, refilled, re-prescribed, or
administered to Lee after that date. Lee was released from
the jail on April 22, 2004. She was admitted to the University
of Alabama at Birmingham hospital on April 26, 2004, after
complaining of chest pain and becoming unresponsive; she died
at the hospital on that same date. The autopsy findings of the
Jefferson County medical examiner's office state that the
cause of death was a "thyroid storm" due to Graves' disease.
Blood taken upon Lee's admission to the University of Alabama
at Birmingham hospital reflects that Lee had no PTU in her
blood at the time of her death.
The estate claims that Davis, Isaacs, and the other
defendants were responsible for Lee's physical care because
they had incarcerated her and prevented her from obtaining
medical treatment on her own, that they were aware of Lee's
medical condition, that they provided no medical care for Lee
and did not allow her to obtain medical care, and that their
failure to provide medical care or allow her to obtain medical
care constitutes willful and wanton misconduct and violation
of a duty imposed upon sheriffs and jailers by Ala. Code 1975,
§ 14-6-19. The estate alleges that on March 20, 2004, the day
1060734
5
after Lee's admission to the jail, Davis entered the D Block
on Level 5 of the jail to perform a head count, that she found
Lee lying on the floor, that she asked Lee what was wrong, and
that Lee told Davis that she did not feel well, that she had
Graves' disease, and that she needed her medication. Davis
then transferred Lee to the medical block and informed someone
on the medical staff that Lee had told her she had Graves'
disease and needed her medication.
Davis and Isaacs claim that they are immune from this
action under § 14 of the Alabama Constitution of 1901. They
deny that they were negligent in any respect as to Lee's
custody and her treatment while in custody. They admit that
Lee told them that she suffered from Graves' disease, but they
assert that they had no further knowledge of Lee's medical
condition, that they had no knowledge about Graves' disease or
about any medications used to treat Graves' disease, that they
have no medical training except basic first aid and CPR, and
that they are prohibited by regulations applicable to the jail
(Corrections Division Manual of General Orders §§ 4-1, 4-9,
and 4-11) and by state law (Ala. Code 1975, §§ 34-24-51, 34-
24-50, and 34-23-50) and federal law (the Health Insurance
1060734
6
Portability and Accountability Act of 1996, Pub. L. No. 104-
191) from accessing prisoners' medical records or giving
medications to prisoners.
II. Standard of Review
"'A writ of mandamus is an extraordinary remedy
that requires the showing of: (1) a clear legal
right in the petitioner to the order sought; (2) an
imperative duty on the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) the properly
invoked jurisdiction of the court.' Ex parte
McNaughton, 728 So. 2d 592, 594 (Ala. 1998)."
Ex parte State Farm Mut. Auto. Ins. Co., 761 So. 2d 1000, 1002
(Ala. 2000). "It is well established that mandamus will lie
to compel a dismissal of claim that is barred by the doctrine
of sovereign immunity." Ex parte Blankenship, 893 So. 2d 303,
305 (Ala. 2004) (citing Ex parte McWhorter, 880 So. 2d 1116,
1117 (Ala. 2003)). "'Mandamus review is available when the
question presented is one of subject-matter jurisdiction.'" Ex
parte Richardson, 957 So. 2d 1119, 1124 (Ala. 2006) (quoting
Ex parte Chemical Waste Mgmt., Inc., 929 So. 2d 1007, 1010
(Ala. 2005)).
III. Analysis
Article I, § 14, Alabama Constitution of 1901, states
simply: "[T]he State of Alabama shall never be made a
1060734
7
defendant in any court of law or equity." Although counties do
not necessarily possess the same sovereign immunity as do
states and state agencies, county sheriffs are executive
officers of the State of Alabama and are therefore immune from
liability for actions taken in executing the duties of their
offices. Boshell v. Walker County Sheriff, 598 So. 2d 843, 844
(Ala. 1992). This Court has also recognized that a "deputy
sheriff is afforded the same immunity from suit as a sheriff
in regard to claims for monetary damages stemming from
activities performed while working in the line and scope of
his or her employment." Ex parte Purvis, 689 So. 2d 794, 796
(Ala. 1996).
When Lee was in custody in the Jefferson County jail,
Davis and Isaacs were acting within the line and scope of
their employment while guarding the prisoners in the county
jail. They were prohibited from prescribing or dispensing
medications;
those
services
were
the
contractual
responsibility of the medical-service providers for the jail.
Davis and Isaacs are therefore immune from liability for the
estate's wrongful-death claim because of the sovereign
immunity afforded them by § 14, Alabama Constitution of 1901.
1060734
8
The
trial
court
therefore appropriately dismissed
the
wrongful-death claim against them in the original complaint.
The issue raised in this mandamus petition is whether the
trial court then erred in allowing the estate to file an
amended complaint including a new wrongful-death count and a
42 U.S.C. § 1983 count after the original complaint had been
dismissed on the ground of sovereign immunity and the statute
of limitations on the claims asserted in the amended complaint
had expired. We conclude that the trial court did err in
allowing the estate to file an amended complaint.
After the original complaint was dismissed as to Davis and
Isaacs on October 23, 2006, the estate filed an amended
complaint on November 13, 2006, more than two and one-half
years after Lee's death on April 26, 2004, that stated two new
causes of action against Davis and Isaacs. The new wrongful-
death claim against Davis and Isaacs is barred by § 14,
Alabama Constitution of 1901, just like the original wrongful-
death claim that was dismissed by the trial court.
Because the original complaint purported to state a cause
of action against Davis and Isaacs in violation of § 14,
Alabama Constitution of 1901, the trial court did not acquire
1060734
9
subject-matter jurisdiction over the claims against the
deputies when the original complaint was filed. Ex parte
Blankenship, 893 So. 2d 303, 306-07 (Ala. 2004). Thus, when
the amended complaint was filed, the newly asserted § 1983
claim against Davis and Isaacs was time-barred by the
applicable two-year statute of limitations:
"(l) All actions for any injury to the person or
rights of another not arising from contract and not
specifically enumerated in this section must be
brought within two years."
§ 6-2-38(l); Gorman v. Wood, 663 So. 2d 921, 922 (Ala.
1995)("[T]he only statute of limitations applicable to § 1983
claims in Alabama is the two-year statute of limitations in
Ala. Code 1975, § 6-2-38(l).").
Therefore, Davis and Isaacs's motion to dismiss was due
to have been granted.
IV. Conclusion
For the above-stated reasons, we grant the petition and
issue the writ of mandamus; the trial court is directed to
dismiss the amended complaint against Davis and Isaacs.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, and
Bolin, JJ., concur.
Murdock, J., concurs in the result.
1060734
10
MURDOCK, Justice (concurring in the result).
Unlike the main opinion, I do not see a causal connection
between the fact that the trial court did not acquire subject-
matter jurisdiction over the state-law claims against Cynthia
Davis and Suzann Isaacs in the original complaint and the
disallowance of the state- and federal-law claims against
Davis and Isaacs in the amended complaint.
Unlike the undismissed, but void, claims in the original
complaint in Cadle v. Shabani, [Ms. 1070116, Sept. 5, 2008] __
So. 2d __ (Ala. 2008), the claims in the original complaint
against Davis and Isaacs had actually been dismissed by the
trial court by the time the amended complaint was filed.
Therefore, there literally was no pre-statute-of-limitations
complaint still pending to which the amended complaint could
relate under Rule 15(c), Ala. R. Civ. P. It matters not that
the claims in the original complaint were insufficient to
provide the trial court with subject-matter jurisdiction.
What matters is that, with respect to the claims against Davis
and Isaacs, the original complaint had been dismissed. Rule
15(c), therefore, was not available to save either the new
wrongful-death claim or the new claim under 42 U.S.C. § 1983
from
the bar of the applicable two-year statute of
1060734
11
limitations. See Ala. Code 1975, § 6-2-38(l).
Accordingly, although I concur in the result reached by
the main opinion, I respectfully decline to join in the
reasoning offered by that opinion. | November 21, 2008 |
2d3d84fc-2888-4deb-8f7a-17dd9c3b9d0e | Walter M. James and Allen K. James v. James W. Rane | N/A | 1061222 | Alabama | Alabama Supreme Court | REL:10/17/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061222
____________________
Walter M. James and Allen K. James
v.
James W. Rane
Appeal from Henry Circuit Court
(CV-99-122)
SMITH, Justice.
The plaintiffs below, Walter M. James and Allen K. James,
appeal an order of the trial court granting a motion to
dismiss filed by the defendant, James W. Rane. We dismiss the
appeal.
1061222
2
In 1999, the Jameses sued Rane, seeking a declaration as
to the ownership of certain parcels of property located in
Henry County. Both the Jameses and Rane claimed title to the
property. Rane filed an answer to the complaint.
In September 2004, the trial court dismissed the case for
lack of action. The Jameses retained new counsel, and the
case was reinstated. In January 2007, the Jameses filed an
amendment to their original complaint adding fictitiously
named defendants and asserting new causes of action. As
amended, the complaint sought a declaratory judgment (counts
I through III) and damages for trespass (count IV), trespass
to chattel (count V), "unlawful cutting of trees" (count VI),
negligence (count VII), wantonness (count VIII), infliction of
emotional distress (count IX), and the tort of outrage (count
X).
On February 21, 2007, Rane filed a motion pursuant to
Rule 12(b)(6), Ala. R. Civ. P., seeking the dismissal of
counts VII through X of the complaint for failure to state a
claim. The motion conceded that counts IV, V, and VI stated
a claim but sought, pursuant to Rule 12(e), Ala. R. Civ. P.,
1061222
3
an order requiring the Jameses to provide a more definite
statement regarding those counts.
The Jameses replied to the motion to dismiss and also
filed a statement providing additional factual and legal
arguments regarding the claims stated in the amended
complaint. On February 26, 2007, the trial court entered an
order stating: "Motion to dismiss pursuant to Rule 12(b) filed
by [Rane] is hereby granted. [The Jameses have] fourteen days
to respond to [Rane's] motion to dismiss." Additionally, the
following entry appeared on the case-action summary: "E-filed
order giving [the Jameses] 14 days to respond and motion to
dismiss granted."
On March 12, 2007, the Jameses filed a motion "to
reconsider and/or reinstate, or in the alternative, motion to
alter, amend or vacate." In it, the Jameses contended that
their counsel did not receive notice of the trial court's
order until March 9, 2007. The motion requested the trial
court to set aside its dismissal or, alternatively, to allow
the Jameses 14 days from March 9, 2007, to respond to Rane's
motion.
1061222
4
A hearing on the Jameses' motion was scheduled; however,
the trial court denied the motion before the hearing was to
take place. The Jameses then filed a notice of appeal. This
Court ordered appellate mediation, which was unsuccessful.
On appeal, the Jameses appear to contend that the trial
court dismissed all of their claims against Rane. The Jameses
state: "[T]he trial court summarily dismissed the [Jameses']
entire case." Jameses' brief at 2. Although the Jameses do
not contest the dismissal of counts VII, VIII, IX, and X, they
offer numerous grounds to demonstrate that the trial court
should not have dismissed the remaining counts I through VI.
After reviewing the record, we conclude that, contrary to
the Jameses' premise, the trial court did not dismiss counts
I through VI of the complaint. Rane's motion, which was
titled "Combined Motion to Dismiss and Motion for Definitive
Statement," sought a dismissal of only counts VII, VIII, IX,
and X. As to the counts IV, V, and VI, Rane sought only an
order requiring a more definite statement. The declaratory-
judgment counts are not even mentioned in Rane's motion. The
motion thus concludes:
"Counts Seven, Eight, Nine and Ten of the
[Jameses']
Amended
Complaint,
which
allege
1061222
5
negligence, wantonness, intentional infliction of
emotional distress and outrage, fail to state a
claim upon which relief can be granted; therefore,
these claims should be dismissed pursuant to Rule
12(b)(6) of the Alabama Rules of Civil Procedure as
a matter of law. ...
"Moreover, with respect to Counts Four, Five and
Six of the [Jameses'] Amended Complaint which allege
trespass, trespass to chattels and unlawful cutting
of trees and shrubs, the [Jameses] should provide a
more definite statement pursuant to Rule 12(e) of
the Alabama Rules of Civil Procedure. These counts
do not allege with sufficient specificity the
alleged facts and allegations against [Rane] to
allow [Rane] the ability to properly investigate and
respond to these allegations."
The trial court's order appears to grant Rane's motion in
its entirety: "Motion to dismiss pursuant to Rule 12(b) filed
by [Rane] is hereby granted. [The Jameses have] fourteen days
to respond to [Rane's] motion to dismiss." The case-action-
summary entry is slightly different: "E-filed order giving
[the Jameses] 14 days to respond and motion to dismiss
granted." Although not models of clarity, the trial court's
orders indicate that Rane's motion to dismiss, which requested
the dismissal of only some claims, was granted; as to the
motion for a more definite statement, it appears that the
trial court granted that motion as well and required the
Jameses to respond in 14 days.
1061222
6
Because Rane requested a dismissal of only counts VII,
VIII, IX, and X, only those claims were properly before the
trial court on the motion to dismiss. Cf. Baugus v. City of
Florence, 968 So. 2d 529 (Ala. 2007); Robinson v. JMIC Life
Ins. Co., 697 So. 2d 461, 461 (Ala. 1997) ("[W]e note that the
trial court's judgments adjudicated all of Robinson's claims.
This was error, because the defendants had sought summary
judgments only as to the fraudulent suppression claim.").
Thus, only counts VII, VIII, IX, and X of the complaint were
dismissed; the remaining counts, including the original counts
seeking a declaratory judgment, which were not even mentioned
in Rane's motion, remain pending in the trial court.
"The general rule is that a trial court's order is not
final unless it disposes of all claims as to all parties."
Dickerson v. Alabama State Univ., 852 So. 2d 704, 705 (Ala.
2002) (citing Rule 54(b), Ala. R. Civ. P.). "For a judgment
to be final, it must put an end to the proceedings and leave
nothing for further adjudication. Ex parte Wharfhouse Rest. &
Oyster Bar, Inc., 796 So. 2d 316, 320 (Ala. 2001). '[W]ithout
a final judgment, this Court is without jurisdiction to hear
an appeal.' Cates v. Bush, 293 Ala. 535, 537, 307 So. 2d 6, 8
1061222
7
(1975)." Hamilton v. Connally, 959 So. 2d 640, 642 (Ala.
2006).
Because counts I through VI remain pending below, the
trial court's order dismissing part of the Jameses' case is a
nonfinal
judgment.
Thus,
this
Court
does
not
have
jurisdiction, and we must dismiss this appeal. Horn v. Brown,
[Ms. 1061656, August 22, 2008] ___ So. 2d ___ (Ala. 2008).
APPEAL DISMISSED.
Cobb, C.J., and See, Woodall, and Murdock, JJ., concur. | October 17, 2008 |
d9725ace-c5ed-45cc-ac13-9edafc7b8e1f | Ex parte Allianz Life Insurance Company of North America. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Mary-George D. Watson v. Allianz Life Insurance Company of North America and Jeffrey D. Fredrickson) | N/A | 1070114 | Alabama | Alabama Supreme Court | Rel: 12/05/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070114
____________________
Ex parte Allianz Life Insurance Company of North America
PETITION FOR WRIT OF MANDAMUS
(In re: Mary-George D. Watson
v.
Allianz Life Insurance Company of North America
and Jeffrey D. Fredrickson)
(Barbour Circuit Court, CV-07-900019)
PARKER, Justice.
Allianz
Life
Insurance
Company
of
North
America
("Allianz") petitions for a writ of mandamus directing the
Barbour Circuit Court to vacate its orders to compel
1070114
Watson's complaint names Allianz and "Jeffrey D.
1
Fredrickson" as defendants. The first paragraph of the
complaint, however, refers to "Robert E. Fredrickson."
2
production of certain discovery documents for an individual
plaintiff in a fraud case involving the sale of an annuity.
The requested documents were produced in class actions in
California and in Minnesota, and Allianz alleges that the
documents are patently irrelevant or duplicative. For the
reasons discussed below, we deny the petition.
Background
In 2003, Mary-George D. Watson bought an Allianz BonusDex
Elite Annuity policy for $14,397.66. She subsequently sued
Allianz and Jeffrey D. Fredrickson, the agent who sold her
1
the policy, in the Barbour Circuit Court, alleging fraud based
on representations allegedly made to her by Fredrickson at the
point of sale.
The BonusDex Elite Annuity is a deferred annuity; it
begins paying a stream of payments at a point in time after
its purchase. Watson alleges that she told Fredrickson that
she did not understand the sales literature provided by
Allianz or the written contract and that she would rely on
Fredrickson's explanation of the policy. She claims that he
1070114
As discussed later in this opinion, Allianz did not
2
include a copy of the motion for a protective order with its
petition; therefore, we cannot know the contents of the
3
misrepresented the terms of the policy to her. In addition to
her fraud claim, Watson alleges that Allianz negligently or
wantonly hired, trained, or supervised Fredrickson, and that
Allianz and Fredrickson failed to procure a suitable insurance
product for her. She also alleges against both Allianz and
Fredrickson breach of contract, breach of fiduciary duty, and
conspiracy.
Allianz is a defendant in several actions involving the
same and similar annuity contracts, and, according to Allianz,
Watson sought, and obtained orders in the trial court
compelling Allianz to produce, documents previously produced
for two of those cases, including:
"1.
All documents produced by [Allianz] in the case
of Vida F. Negrete, et al. v. [Allianz](Civil Docket
# 2:05-cv-06838-CAS-MAN), United States District
Court for the Central District of California, as
well as the case of Mooney, et al. v. [Allianz]
(Civil Docket # 06-cv-00545 (ADM/FLN)), United
States District Court for the District of Minnesota.
"2. All depositions taken in [Negrete], as well as
[Mooney], including exhibits to the depositions."
Allianz filed a motion for a protective order as to the
documents, which the trial court denied. Allianz states that
2
1070114
motion.
Watson asserts that she "was a member of the Mooney
3
class, but she has chosen to pursue her individual claims
against Allianz and the agent in this case." Watson's response
4
the Negrete court has certified the class in a nationwide RICO
class action as follows:
"'All persons who within the applicable
statute of limitations of the date of
commencement of this action and while 65
years of age or older, purchased one or
more Allianz Life Insurance Company of
North America deferred Annuities either
directly, or through surrender(in whole or
in part) of an existing permanent life
insurance
policy
or
annuity,
or
by
borrowing against an existing permanent
life insurance policy.'
"App. Exh. 6, [Stephen] Jordan Aff. Exh. B at 26-27.
The Negrete class consists of approximately 200,000
members[, and Watson] is neither a member of the
Negrete class, nor a California sub-class, because
she was age 52 when she purchased her policy, and is
not a California resident."
Petition at 3. Allianz notes that production of the documents
in Negrete has resulted in over 180,000 documents produced
under 143 requests, and it anticipates that production will be
substantially more than one million documents, not including
over 2,800 pages of transcripts resulting from 13 days of
depositions. Petition at 4.
The Mooney action pending in the United States District
3
1070114
at 4. This assertion is followed by a footnote that states:
"Because the Court in Mooney has not disseminated notice to
the class, class members have not been advised of any right or
obligation to opt out of the class." Watson has apparently not
yet opted out of the class in Mooney, but the parties did not
address the significance of that footnote.
Allianz is incorporated under Minnesota law, with its
4
principal place of business and headquarters in Minneapolis,
Minnesota.
Allianz attaches to its petition an affidavit by Stephen
5
Jordan, one of the attorneys representing Allianz in the
Negrete action, discussing the Negrete litigation and the
Mooney litigation, but Allianz does not explain if or how
those materials were before the trial court.
5
Court for Minnesota is based entirely on alleged violations of
the Minnesota Consumer Protection Fraud Act and on common-law
unjust enrichment. The Mooney court certified a nationwide
4
class consisting of:
"'All individuals who from February 9, 2000 to the
present purchased one of the following two-tiered
annuities from Allianz Life insurance Company of
North
America:
BonusMaxxx,
BonusMaxxx
Elite,
BonusDex, BonusDex Elite, 10% Bonus PowerDex Elite,
MasterDex 10, and the InfiniDex 10 ("Annuities").
The class excludes all persons who purchased the
above-listed Annuities from Allianz while they were
California residents and when they were 65 or
older.'"
Petition at 5 (quoting Affidavit of Stephen Jordan). This
5
class includes approximately 337,000 members. Under Mooney,
Allianz has produced approximately 70,000 documents in
1070114
6
response to 53 requests and has produced about 8,400 pages of
transcripts from 53 days of depositions and about 500
associated exhibit documents. Petition at 5. Allianz petitions
this Court for a writ of mandamus directing the Barbour
Circuit Court to vacate its orders compelling production here
of the documents produced in the Negrete and Mooney class
actions.
Standard of Review
"A writ of mandamus can be issued to affect the
trial court's control of the discovery process, but
this Court's review of a petition seeking a writ in
a discovery dispute is particularly stringent:
"'The law relating to the issuance of
a writ of mandamus in a case involving a
discovery dispute was recently set out in
Ex parte Henry, 770 So. 2d 76 (Ala. 2000).
In Ex parte Henry, this Court stated:
"'"Rule 26 Ala. R. Civ. P.,
governs
the
discovery
of
information in civil actions.
When
a
dispute
arises
over
discovery matters, the resolution
of the dispute is left to the
sound discretion of the trial
court. 'Discovery matters are
within the trial court's sound
discretion, and its ruling on
those
matters
will
not
be
reversed absent a showing of
abuse
of
discretion
and
substantial
harm
to
the
appellant.' Wolff v. Colonial
Bank, 612 So. 2d 1146, 1146 (Ala.
1070114
7
1992) (citations omitted); see
also Ex parte Hicks, 727 So. 2d
23, 33 (Ala. 1998) (Maddox, J.,
dissenting).
"'"... The writ of mandamus
is a drastic and extraordinary
remedy, to be issued only when
there is (1) a clear legal right
in the petitioner to the order
sought; (2) an imperative duty
upon the respondent to perform,
accompanied by a refusal to do
so; (3) the lack of another
adequate remedy; and (4) properly
invoked
jurisdiction
of
the
court. Ex parte Horton, 711 So.
2d 979, 983 (Ala. 1998) (citing
Ex parte United Serv. Stations,
Inc.,
628
So.
2d
501
(Ala.
1993)); Ex parte Alfab, Inc., 586
So. 2d 889, 891 (Ala. 1991)
(citing Martin v. Loeb & Co., 349
So. 2d 9 (Ala. 1977)). Moreover,
this Court will not issue a writ
of mandamus compelling a trial
judge to alter a discovery order
unless this Court 'determines,
based on all the facts that were
before the trial court, that the
trial court clearly abused its
discretion.' Ex parte Horton, 711
So. 2d at 983. Moreover, '"[t]he
right sought to be enforced by
mandamus
must
be
clear
and
certain with no reasonable basis
for controversy about the right
to relief," and "[t]he writ will
not issue where the right in
question is doubtful."' Ex parte
Bozeman, 420 So. 2d 89, 91 (Ala.
1982) (quoting Ex parte Dorsey
Trailers, Inc., 397 So. 2d 98,
1070114
8
102 (Ala. 1981))."'
"Ex parte Pitts, 822 So. 2d 418, 421-22 (Ala. 2001).
See also Ex parte Ocwen Federal Bank, FSB, 872 So.
2d 810, 813 (Ala. 2003) (holding that 'mandamus will
issue to reverse a trial court's ruling on a
discovery issue only (1) where there is a showing
that
the
trial
court
clearly
exceeded
its
discretion, and (2) where the aggrieved party does
not have an adequate remedy by ordinary appeal. The
petitioner has an affirmative burden to prove the
existence of each of these conditions.'). The Court
in Ocwen noted that '[i]n certain exceptional cases
... review by appeal of a discovery order may be
inadequate' and that among those exceptional cases
were those in which 'a discovery order compels the
production of patently irrelevant or duplicative
documents, such as to clearly constitute harassment
or impose a burden on the producing party far out of
proportion to any benefit that may obtain to the
requesting party ....' 872 So. 2d at 813. See also
Ex parte Crawford Broad. Co., 904 So. 2d 221 (Ala.
2004).
Moreover,
we
are
also
aware
of
the
fundamental disinclination of the appellate courts
to intrude into the trial court's province of
conducting the litigation process. Appellate courts
are fundamentally directed toward the review of an
appeal after a case is concluded in the trial court,
and they are not well equipped to manage the trial
court's business, particularly where the appellate
caseload is more than sufficient to fully occupy the
court's time. This Court has long recognized the
principle that '"[c]ases should not be tried by
piecemeal, and separate and distinct rulings upon
the evidence brought to this court pending the
progress of the trial ...."' Ex parte Alabama Power
Co., 280 Ala. 586, 599, 196 So. 2d 702, 715 (1967)
(quoting Ex parte Little, 205 Ala. 517, 517, 88 So.
645, 646 (1921))."
Ex parte Cooper Tire & Rubber Co., 987 So. 2d 1090, 1100-01
(Ala. 2007).
1070114
9
Analysis
Allianz states the issue as:
"Whether a Plaintiff
asserting
Alabama
fraud
and
other claims based on oral representations by an
independent agent in the purchase of single annuity
product in 2003, may compel discovery or more than
one million documents and 66 days of depositions
(with hundreds of exhibits), produced in two
national class actions pending in federal courts in
California and Minnesota involving hundreds of
thousands of individual transactions from 1997 and
thereafter for the purchase of annuity products."
Petition at 6.
Allianz argues that the writ of mandamus should issue
because, it says, the documents covered by the orders
compelling discovery are neither relevant nor reasonably
calculated to lead to the discovery of admissible evidence and
because Watson should not be provided access to trade secrets
or confidential documents.
As to the permissible scope of discovery, Allianz states
that "the right to discovery, even in cases including fraud
claims seeking punitive damages, 'is not unlimited.' Ex parte
Union Sec. Life Ins. Co., 723 So. 2d 34, 38 (Ala. 1998)."
Petition at 6. Citing Ex parte National Security Life
Insurance Co., 773 So. 2d 461, 465-66 (Ala. 2000), Allianz
further notes that Alabama courts allow broader discovery than
1070114
10
normal when fraud is alleged and punitive damages are sought,
if the requests are closely tailored to the nature of the
fraud alleged and are not oppressive or unduly burdensome.
Petition at 7. Allianz argues that Watson's Alabama common-law
claims against Allianz and one Alabama agent stemming from her
purchase of a single annuity policy are very narrow, but her
discovery requests are very broad. Id. Allianz suggests that
Watson's
misrepresentation
claim
against
Fredrickson
concerning the suitability of the policy features to her needs
can be established only through discovery of the facts that
are unique to her policy and to her transaction, which
occurred in 2003. Id. Allianz notes that the discovery
ordered, however, includes information regarding "essentially
all
information
related
to
hundreds
of
thousands
of
transactions involving 63 different ... [policies] ... in all
50 states since December 1997." Petition at 8. Allianz argues
that the discovery requests and the orders compelling
discovery are not closely tailored, or tailored at all, to
Watson's claims, and that, therefore, the orders should not be
allowed to stand. Id.
As to relevance of the ordered production, Allianz notes
that Watson's claims are supported solely by the alleged oral
1070114
11
misrepresentations of Fredrickson, an independent agent, and
that her complaint does not allege participation by Allianz in
the sales process, nor does it allege that Allianz's written
sales materials contain any misrepresentations. Allianz
argues:
"The scope of discovery needed to establish the
claims of the 337,000 members of the nationwide
class in Mooney, is clearly not the same as that
needed
by
the
individual
policyholder
here.
Documents related to hundreds of thousands of other
transactions involving
other
annuities,
dissimilarly
situated non-party agents and customers in states
other than Alabama at times other than November 2003
are irrelevant to [Watson's] claims. The ordered
production is utterly untailored to the time,
geography,
or
scope
of
the
particular
fraud
allegations [Watson] asserts."
Petition at 9.
Watson argues that the writ of mandamus should not issue
because, she says, the documents are relevant to her claims
and because Allianz has failed to meet its burden under Ex
parte Ocwen Federal Bank, FSB, 872 So. 2d 810 (Ala. 2003), of
showing that the documents and items requested in discovery
are patently irrelevant and that the production of those
documents and items "'clearly constitute[s] a burden on the
producing party far out of proportion to any benefit that may
obtain to the requesting party.' Ocwen, 872 So. 2d at 313."
1070114
12
Watson's response at 15.
While Allianz has provided a plethora of information on
the merits of the case below that appears to justify its
request, we note that the issue presented by Allianz does not
accurately reflect the task of this Court. Our task in this
case is to evaluate the decision of the trial court to
determine whether, in exercising its discretion, it exceeded
that discretion. To conduct such an evaluation, it is
necessary to review the information on which the trial court
based its decision.
Allianz has provided this Court with no evidence
indicating that it responded to Watson's motion to compel
production of the documents it now says are not discoverable.
Because a "trial judge's order should not be reversed for the
judge's
failing
to
heed
an
argument
never
made
in
the
trial
court,"
ConAgra, Inc. v. Turner, 776 So. 2d 792, 799 (Ala.
2000)(Lyons, J., concurring in the judgment affirming the
award of compensatory damages and otherwise concurring both in
the judgment and the opinion), we are provided no basis for
finding error in the trial court's exercise of its discretion
in that regard. Rule 21(a)(1)(E), Ala. R. App. P. Similarly,
when we next seek justification for the trial court's denial
1070114
Watson has provided a transcript of the hearing on her
6
motion to compel held on September 12, 2007. The transcript
contains mention of a proposed protective order being
negotiated by the parties, indicating that Allianz had
submitted the order to Watson's counsel and that it had not
been provided to the trial court at that time. Watson states
in her response that "since [the hearing,] the parties have
reached an agreement on the terms of a Protective Order."
Watson's response at 25.
13
of Allianz's motion for a protective order, we find that
Allianz has not provided this Court a copy of the motion or
any
supporting
information
as
part
of
its
petition.
Accordingly, we can find no error in the trial court's
exercise of its discretion regarding the denial of the
protective order because we have no evidence that the motion
was more than a mere unsupported request for a protective
order. Indeed, the sole evidence this Court has of the
existence of such a motion is the word "denied" on a single-
page order from the trial court that references a motion for
a protective order.
6
The trial court's October 3, 2007, order to compel reads
in part:
"There being good cause shown that these documents
and depositions are available to Defendant Allianz
and either could be admissible in this matter or are
reasonably calculated to lead to the discovery of
admissible
information,
the
Court
finds
that
[Watson's] Motion to Compel is due to be granted."
1070114
14
Petition, App. Tab 3.
The trial court subsequently denied Allianz's motion for
a protective order, and the "presumption must be indulged by
this court in favor of the ruling of the trial court," Harris
v. Basden, 162 Ala. 367, 370, 50 So. 321, 322 (1909), because
"[d]iscovery matters are within the trial court's sound
discretion, and its ruling on those matters will not be
reversed absent a showing of abuse of discretion and
substantial harm to the appellant." Wolff v. Colonial Bank,
612 So. 2d 1146, 1146 (Ala. 1992) (citing Smith v. Wilcox
County Bd. of Educ., 365 So. 2d 659 (Ala. 1978); Selby v.
Money, 403 So. 2d 218 (Ala. 1981); Riddlesprigger v. Ervin,
519 So. 2d 486, 487 (Ala. 1987); Iverson v. Xpert Tune, Inc.,
553 So. 2d 82 (Ala. 1989); Ragan v. Blazon Flexible Flyer,
Inc., 590 So. 2d 882 (Ala. 1991); and Napier v. McDougal, 601
So. 2d 446 (Ala. 1992)).
Allianz has failed to provide "parts of the record that
would be essential," Rule 21(a)(1)(E), Ala. R. App. P., to
overcome the presumption of correctness attendant to the trial
court's order. See Ex parte Atchley, 936 So. 2d 513, 516 (Ala.
2006).
Conclusion
1070114
15
This Court has stated that "the writ of mandamus will not
issue to compel a trial court to change its discovery order
unless the appellate court determines, based on all the facts
that were before the trial court, that the trial court clearly
abused its discretion." Ex parte Horton, 711 So. 2d 979, 983
(Ala. 1998).
Allianz has not met its burden of demonstrating that the
trial court exceeded its discretion in granting Watson's
motion to compel production and in denying Allianz's motion
for a protective order. The petition, therefore, is denied.
PETITION DENIED.
Cobb, C.J., and See, Woodall, and Smith, JJ., concur. | December 5, 2008 |
07311f63-c8a8-4ba9-8891-d05115e8bedc | Ex parte Montgomery County Department of Human Resources and Alabama Department of Human Resources. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS AND FOR WRIT OF MANDAMUS: CIVIL (In re: Montgomery County Department of Human Resources and Alabama Department of Human Resources v. The matter of D. R. S., a minor) | N/A | 1071250 | Alabama | Alabama Supreme Court | REL:12/05/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1071250
____________________
Ex parte Montgomery County Department of Human Resources and
Alabama Department of Human Resources
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL
APPEALS AND FOR WRIT OF MANDAMUS
(In re: Montgomery County Department of Human Resources and
Alabama Department of Human Resources
v.
The matter of D.R.S., a minor)
(Montgomery Juvenile Court, JU-93-102.08;
Court of Civil Appeals, 2070163)
BOLIN, Justice.
1071250
2
The Montgomery County Department of Human Resources ("the
County DHR") and the Alabama Department of Human Resources
("the State DHR") (hereinafter referred to collectively as
"DHR") and the Department of Mental Health and Mental
Retardation ("DMH") request both a writ of certiorari and a
writ of mandamus.
Facts and Procedural History
D.R.S. is deaf and mentally retarded. She also suffers
from diabetes, mental illness, and alopecia. The record
indicates that the juvenile court has exercised jurisdiction
over D.R.S. for a number of years. During some of those
years, D.R.S. was in the legal custody of various relatives.
The most recent proceedings involving D.R.S. began on May 23,
2007, when the County DHR petitioned the juvenile court to
find that D.R.S., who was then in the legal custody of her
paternal aunt, was dependent and to award custody of D.R.S. to
the County DHR. Upon the filing of the County DHR's petition,
the juvenile court appointed an attorney to serve as D.R.S.'s
guardian ad litem. On May 30, 2007, following an expedited
hearing, the juvenile court found that D.R.S. was dependent
and granted the County DHR legal custody of D.R.S.
1071250
3
The County DHR made arrangements for D.R.S. to reside
temporarily at the National Deaf Academy in Florida ("the
NDA") while it sought joint-agency funding from the "State
Multiple Needs Team" for a long-term placement for D.R.S. On
June 15, 2007, the juvenile court entered an order requiring
the County DHR to give the juvenile court 30 days' written
notice of any proposed change in D.R.S.'s placement.
On June 22, 2007, the State DHR, acting on behalf of the
County DHR, notified the juvenile court in writing of the
County DHR's intent to change D.R.S.'s placement from the NDA
to BayPointe Children's Residential Services ("BayPointe") in
Mobile, Alabama, and moved the juvenile court to amend its
June 15, 2007, order to allow the change in placement to take
place immediately. As grounds for seeking the immediate
change in placement, the State DHR alleged that BayPointe
could provide services that were equivalent to those being
provided by the NDA; that the State Multiple Needs Team had
approved joint-agency funding for residential placement of
D.R.S. at BayPointe at a cost not to exceed $435 per day from
the date of admission through September 30, 2007; and that
BayPointe then had a space available for D.R.S. but might not
1071250
4
have space available at a later date. The motion was
accompanied by a brief asserting that the juvenile court
lacked authority to condition D.R.S.'s placement on the
juvenile court's prior approval; that the constitutional
doctrine of separation of powers prohibited the juvenile court
from preventing D.R.S.'s placement at BayPointe; that the
juvenile court lacked the authority to control the expenditure
of State funds by directing that State agencies place D.R.S.
at a particular facility; that the juvenile court lacked the
authority to require State agencies to incur the cost of
providing care for a child at a private facility; and that the
counties of the State are statutorily responsible for the care
of indigent children under the supervision of a juvenile
court.
An entry made by the juvenile court on the case-action
summary on June 26, 2007, indicates that on that date the
juvenile court held a hearing on the State DHR's motion to
amend the juvenile court's June 15, 2007, order and found that
it was not in D.R.S.'s best interest to be moved from the NDA.
On July 27, 2007, the guardian ad litem moved the
juvenile court to find the County DHR in contempt. As
1071250
5
grounds, the guardian ad litem alleged, among other things,
(1) that the County DHR had moved D.R.S. to BayPointe on July
25,
2007;
(2)
that,
contrary
to
the
State
DHR's
representations to the juvenile court, BayPointe did not
provide services that were equivalent to those provided by the
NDA; and (3) that BayPointe was an unsuitable placement for
D.R.S. The County DHR denied the allegations in the guardian
ad litem's motion.
After a hearing, the juvenile court entered the following
order on November 13, 2007:
"This matter came before the Court for a review
of placement of the minor child by the Montgomery
County Department of Human Resources. Custody of
the minor child, [D.R.S.], age 17, was vested in
Montgomery County DHR and the matter is ongoing as
to placement of the child, safety and stability,
medical treatment and education. At the time and
date set for the hearing, the following persons were
present: The minor child, [D.R.S.]; Guardian ad
Litem, Hon. Beverly Howard; Hon. Andrea Mixson,
representing the minor child; the Hon. James Long,
representing the State Department of Human Resources
in substitution for the Montgomery County Department
of Human Resources attorney; Hon. Lisa Melvin,
Attorney for the Montgomery County Department of
Human Resources; Hon. John Wible, Attorney for the
Alabama Department of Public Health; Hon. Tamara
Pharrams, representing the Alabama Department of
Mental Health and Mental Retardation; Hon. Tim
Tyler, Montgomery County District Attorney's Office;
Hon. Gene Spencer, the child's defense attorney (for
day one of the hearing only); Hon. Dudley Perry,
1071250
6
representing
the
Alabama
Department
of
Youth
Services (for day one of the hearing only); and Hon.
Barney March, attorney for BayPointe (day two of the
hearing only). Also present for the hearing were
Ms. Liz Hill, Alabama Department of Mental Health
and Mental Retardation; Mr. Fred Vrgora, probation
officer for the minor child; Ms. Beverly Wise,
probation supervisor for Montgomery County Juvenile
Court; Ms. Sue Parker, Montgomery County Department
of
Human
Resources;
Ms.
Ruthie
Fitzpatrick,
Montgomery County Department of Human Resources; Ms.
Margaret
Bonham,
State
Department
of
Human
Resources; Ms. Beth Williams, Montgomery County
Department of Human Resources; and Ms. Jody Jernigan
and Ms. Wendy Darling, American Sign Language
interpreters.
"The Court heard testimony ore tenus over a two-
day period and entered certain exhibits. The purpose
of this two-day hearing was to review and determine
whether or not the unilateral decision made by the
Department of Human Resources to place [D.R.S.] at
BayPointe in Mobile, Alabama was a viable placement
under the facts and circumstances surrounding this
case. At all times pertinent, custody of [D.R.S.]
has been vested in DHR.
"The record reflects that [D.R.S.] has been
previously determined to be mentally ill, has been
diagnosed
as
mentally
retarded,
is
deaf,
communicates primarily by sign language, is diabetic
and suffers from alopecia in addition to other
medical problems. She came to the attention of this
Court through a criminal charge for a misdemeanor.
It appears that the basis for [D.R.S.'s] criminal
charge was for her acting-out behavior in a DHR
placement. [D.R.S.] had been placed by DHR in a
facility
where
staff
members
were
unable
to
communicate with her by sign language and she had no
peers
or
other
deaf
persons
around
her
to
communicate with her as to her needs on a daily
basis.
1071250
7
"After coming to the attention of the Montgomery
County Juvenile Court, the Montgomery County Multi-
Needs Team met to consider the multiple needs of
this deaf child. The County recommendation made to
the State Multi-Needs Team was that the child be
placed at the National Deaf Academy in Mt. Dora,
Florida, hereinafter referred to as NDA. For
reasons known only to the State Multi-Needs Team,
the executive director, Donna Glass, determined that
[D.R.S.] should be sent to University of Alabama at
Birmingham
Children's Hospital for a physical
examination instead of NDA. After a hearing
regarding the best interest and safety of [D.R.S.],
Montgomery County Department of Human Resources made
the decision to send [D.R.S.] to NDA and to pay for
that facility for only 30 days. That specific
placement was certainly in this child's best
interest because NDA is a fully licensed medical and
educational facility wherein deaf children with
multiple needs (such as mental illness, mental
retardation, medical problems and the like) may be
cared for and may interact with other children who
are also hearing impaired and who have educational
and medical needs as well.
"At some point in this process, State DHR,
through its attorney, James Long, unilaterally
removed [D.R.S.] from NDA, transporting her to a
facility called BayPointe Hospital in Mobile. At
all times pertinent, Mr. Long asserted that State
DHR had absolute authority to place any child in DHR
custody anywhere it wished without oversight by any
authority including the Circuit Court and without
answering to any agency or Court for any harm
perpetrated upon the child. At the conclusion of
the two-day hearing, in response to the Guardian ad
Litem, Mr. Long stated on the record, in substance
that, 'I'm the State of Alabama; I say where she
goes, and she's coming back to Alabama.' Mr. Long
continued by telling the Guardian ad Litem and the
Court that, if [D.R.S.] were Ordered to NDA, someone
other than DHR would have to pay for it.
1071250
8
"The testimony during the two-day trial can only
be described as a horror story. Olivia Nettles,
Director of the 94-bed hospital at BayPointe,
testified that BayPointe had no deaf interpreters on
staff, no employees who were available twenty-four
hours a day seven days a week and who were fluent in
American Sign Language. Ms. Nettles stated that
BayPointe had never provided services, including
medical attention, for a single deaf child prior to
[D.R.S.'s] placement. Ms. Nettles admitted that she
was not familiar with the protocols endorsed by the
State Department of Mental Health regarding deaf
children. Therefore, she was unsure as to whether
or not BayPointe was in compliance with those
protocols, which included procedures for restraining
a deaf child and for communication with the deaf
child. Consistent with her lack of knowledge, Ms.
Nettles stated that she had approved the BayPointe
staff to provide 'dry erase boards' for [D.R.S.] to
communicate with staff rather than bear the cost of
sign
language
interpreters.
Cross-examination
revealed that [D.R.S.] cannot write on the dry erase
board when she is upset and her arms are restrained.
The Guardian ad Litem posited that, 'because you
understand a deaf person, it should not be assumed
that the deaf person understands you.' Ms. Nettles
responded that she had heard that. However she
continued to assert that BayPointe was effectively
communicating with [D.R.S.].
"Ms. Nettles confirmed that BayPointe was
administering a high dosage of amphetamines to
[D.R.S.] to such an extent that she tested positive
for benzodiazepine and amphetamines. However, the
staff physician for BayPointe as well as other on-
site staff appeared baffled by the positive drug
screen and could not explain why this child would
have tested positive for amphetamines. The Court
took note that clearly, the child is being over-
medicated by the physicians and staff at BayPointe
for reasons known only to BayPointe. The positive
1071250
9
drug screen conducted by Drug Test Services in
Montgomery confirmed the over-medication.
"Of particular concern to the Court was an
incident which occurred the day before the hearing
in Montgomery. The staff at BayPointe had injured
[D.R.S.] while again attempting to restrain her. The
BayPointe staff 'busted' [D.R.S.'s] lip, yet they
did not report the injury to the case worker on
staff, the physician or the Guardian ad Litem. Ms.
Nettles confirmed that BayPointe doesn't always
prepare written reports concerning injuries. The
Court is particularly concerned about the injuries
this child has sustained which have gone untreated
by BayPointe because [D.R.S.] is diabetic. An
injury left untreated can have major medical
consequences for the diabetic. It was clear that in
this
incident,
[D.R.S.]
had
been
improperly
restrained by BayPointe staff so as to render the
deaf, diabetic, mentally ill and mentally retarded
child unable to communicate, leaving the child, no
doubt, terrified in her virtually silent world.
"During the course of the hearing, several
BayPointe staff members testified, including Carla
Ladnier, who is the assistant coordinator of
residential programs at BayPointe. She admitted that
she had gotten one week's notice that she would be
a mental health therapist for [D.R.S.]. She does
not sign, is not hearing-impaired and is not
familiar with needs of deaf children. Also, she
stated that she does not know protocols for
providing such specialized therapy. Her therapy for
[D.R.S.] consists of 30 minutes to an hour per week,
in which she focuses on [D.R.S.'s] acting-out, angry
behavior. Ms. Ladnier admitted that she was present
for the very first restraint of [D.R.S.] on August
6, 2007, as was a staff member, Anita Cox, who is
also not hearing impaired, but who has some
knowledge of signing.
1071250
10
"There was testimony throughout the hearing
regarding numerous restraints of [D.R.S.], all of
which rendered her unable to communicate even by dry
erase boards and caused injuries to her associated
with those restraints.
"One of these injuries occurred when [D.R.S.]
was improperly restrained and collided with a trash
can, which broke the skin on her leg. Once again the
injury was left untreated by BayPointe, causing
massive infection to develop. Such a course of
action by BayPointe can only be described as medical
neglect and abuse for this diabetic, deaf child.
Subsequent to the hearing, the Guardian ad Litem
filed BayPointe case notes and reports with this
Court which indicate that they (BayPointe) are
continuing to restrain [D.R.S.] in such a manner as
to continue to cause injury to her. BayPointe
cannot be considered an appropriate placement for
[D.R.S.]
under
these
circumstances.
The
professionals involved with [D.R.S.] including Liz
Hill, the Guardian ad Litem, the probation officer
and the Montgomery County Multi-Needs team advised
DHR and James Long that BayPointe was inappropriate
prior to Mr. Long's unilateral decision to place
[D.R.S.] at BayPointe. Where the health, well-being
and life of a child are at issue, ill-informed,
power plays by government attorneys cannot be
allowed.
"The Mobile School for the Deaf refuses to
accept [D.R.S.] as a student and made such a
determination
based
on
unspecified
documents
provided to them by BayPointe. The Mobile school
indicated that they believed [D.R.S.'s] behavior was
not stabilized as she had determined from the level
she had reached at NDA. At the time of the hearing,
[D.R.S.'s] educational status was abysmal, little
having been provided to her by BayPointe.
"BayPointe utilizes a 'point system' wherein a
'consumer' (resident) earn points which allow the
1071250
11
child to be taken outside BayPointe for outings to
parks or a mall or a pet store. BayPointe terms
such outings to be 'therapeutic outings.' [D.R.S.]
has had one therapeutic outing to Wal-Mart because
she has not earned points for additional outings.
Further, [D.R.S.] is required to earn an outing even
to interact with other deaf children, which also has
not been allowed as of the date of the hearing.
Therefore the status of the child, [D.R.S.], is
isolation from the deaf community and with no
recourse while she is in the custody of DHR. The
Court finds it frightening that the agents of DHR
find nothing amiss or cause for alarm in BayPointe's
treatment of this child and condones same.
"Ms. Olivia Nettles testified that she really
had no direct knowledge of [D.R.S.'s] care, nor did
her schedule and duties allow time to oversee care
of all of the patients which she refers to as
'consumers.' She then asserted that [D.R.S.] likes
to sleep and doesn't want to get up in the morning.
When [D.R.S.] doesn't get up, BayPointe employees
punish and restrain her. When asked about the level
of [D.R.S.'s] medications and the side effects which
are known to induce sleepiness, Ms. Nettles,
Director of BayPointe operations, was uninformed as
to the side effects of each of the medications
prescribed for the child at BayPointe.
"Gregory Broadnax is an LPN at BayPointe. He
testified that [D.R.S.] is prescribed Cymbalta,
Dulcolax, Depakote, Loratadine, Ranitidine, Geodon,
Amaryl, Lorazepam, Ativan, Reglan, Metformin and
others. All these medications are given to [D.R.S.]
on a daily basis. The side effects of Cymbalta are
drowsiness, dizziness, headaches, sleep problems,
dizziness [sic], hypotension. He also testified
that Loratadine, which is Claritin, can cause
hallucinations
in
combination
with
other
medications.
Lorazepam, likewise, will cause
drowsiness, as will the drug Geodon. Based on
comparison with the medications prescribed and
1071250
12
administered to [D.R.S.] at NDA, it appears that
BayPointe and its personnel over-medicate [D.R.S.]
and then punish her when she cannot respond because
of the medications they administer to her.
"Another concern is that BayPointe apparently
believes that depriving [D.R.S.] of food will
stabilize her diabetic condition. There was
testimony that [D.R.S.] has Type II diabetes and is
insulin dependent. Testimony indicated that a
patient who is stable on insulin can eat favorite
foods on occasion but in smaller portions. NDA
managed [D.R.S.'s] diabetes while providing her with
occasional small portions of her favorite foods such
as hamburgers and potato chips. BayPointe prefers
to simply deprive [D.R.S.] of even small portions of
favorite foods. [D.R.S.'s] response to the constant
deprivation is to engage in acting-out behavior.
"By comparison, when [D.R.S.] was at the
National Deaf Academy in Mt. Dora, she was less
medicated and was able to interact with other deaf
children on a daily basis. There was no earned
points system at NDA, as outings for the children
were
considered
positive
experiences.
The
administrators and medical personnel, as well as the
educational staff at NDA, are all fluent in American
Sign Language, and many of those employees are also
deaf. NDA personnel were clearly able to understand
[D.R.S.'s] needs and to communicate directly with
her regarding those needs. In addition, they are
able to communicate with her to explain treatment
procedures
and
reasons therefor. The opposite
occurred at BayPointe. While placed at the National
Deaf Academy, [D.R.S.] was prescribed 500 milligrams
of Depakote at bedtime only. At BayPointe, [D.R.S.]
was prescribed 1500 milligrams twice daily. The
amounts of medications prescribed for [D.R.S.]
across the board at National Deaf Academy were far
less than the amount prescribed for her by BayPointe
personnel.
1071250
13
"Following her placement at NDA, [D.R.S.]
underwent
a
full
physical
examination
and
psychological
evaluation.
[D.R.S.'s]
behavior
stabilized within the thirty (30) days she was at
NDA and she appeared to be well-adjusted. She was
beginning to adjust to her educational structure and
responding to therapy when she was summarily removed
from NDA at the insistence of DHR attorney James
Long and placed at BayPointe. Mental health
therapist Liz Hill testified that the practice of
'earning
outings'
employed
by
BayPointe
is
therapeutically destructive. Ms. Hill is a deaf
therapist who is fluent in American Sign Language
and had made excellent progress with [D.R.S.] in
terms of communication and had gained [D.R.S.'s]
trust. Ms. Hill is employed with the Alabama
Department of Mental Health and Mental Retardation
and is in the ideal position to make a therapeutic
recommendation for [D.R.S.]. Based on Ms. Hill's
work with deaf children throughout Alabama she
testified that there is no program in the State of
Alabama for multi-needs deaf children which will
provide the continuum of services that NDA provides.
It is unfortunate that the State of Alabama does not
have such a facility, but the fact remains, that
Alabama does not have a facility to accommodate the
multiple needs of a child such as [D.R.S.]. Ms.
Hill testified that based upon her interaction with
[D.R.S.] over a period of time, the child needs to
be in a facility where the staff are trained to work
with deaf children who are emotionally disturbed,
like [D.R.S.]. She recommends that [D.R.S.] be
placed at NDA or a comparable facility where
[D.R.S.] will be in the best position to progress
and become behaviorally stable. It appears that NDA
is the closest such facility to Montgomery County
geographically.
"Ms.
Hill
points
to
an
incident
wherein
BayPointe employees punished [D.R.S.] because one of
their
non-fluent
interpreters
for
the
deaf
misunderstood a sign which [D.R.S.] made in an
1071250
14
effort to communicate with them. She also testified
that, based on the protocols prepared by the Alabama
Mental Health Office of Deaf Services regarding
restraints, BayPointe's use of restraints regarding
[D.R.S.] was improper and not consistent with those
protocols. BayPointe's restraints render [D.R.S.]
unable to communicate as her hands are bound. Of
particular concern in the case of [D.R.S.] is the
fact that, in mental health therapy, having a third
person in the room to interpret, through sign
language,
patient
and
therapist
communication
destroys the dynamics of therapy. It is no longer
one-on-one, as it should be. Thus a therapist who
if fully fluent in American Sign Language is
required and is the right of the child.
"Donna Glass, director of the State Multi-Needs
Office, testified that she believes BayPointe is
more appropriate than NDA for [D.R.S.]. It should
be noted that Donna Glass was not present for the
testimony of the BayPointe personnel who admitted
that they have no services for deaf children and
have never provided services for a child like
[D.R.S.] and, therefore, have no programs or
protocols
in
place
to
insure
the
child's
development, stability and safety. It is unknown
why Ms. Glass and the State Multi-Needs Team has
consistently supported the Department of Human
Resources' baseless position that BayPointe is an
appropriate placement for [D.R.S.], particularly
when
the
Montgomery
County
Multi-Needs
Team
recommended placement of this child at NDA. The
inconsistent opinions are troubling and are cause
for concern when weighed with the child's needs.
Also troubling, Ms. Glass demonstrated a marked lack
of understanding for a child with [D.R.S.'s] special
multiple needs, as Ms. Glass is woefully unaware of
what services BayPointe can and does provide and she
was completely unaware of the lack of resources at
BayPointe for a deaf child. Ms. Glass's testimony
was less than credible.
1071250
15
"Subsequent to the two-day hearing, the Court
has reviewed records from BayPointe dated 10/10/07
which were delivered to the Guardian ad Litem and
filed with the Court. The BayPointe staff state that
[D.R.S.'s] behavior has deteriorated over the last
month, that her hearing is getting worse and that
she has been prescribed the 'wrong medicine,' Ms.
Ladnier says in her report,
"'Cons [consumer] has reported feeling
lonely at BayPointe, wants to be with other
deaf peers, feels isolated from hearing
staff members and hearing peers. Although
consumer initially seems to be adjusting to
BayPointe
and
connecting
with
her
therapist, at present time consumer is
withdrawing from others and has shown a
decrease
in
her
participation
during
therapy.
She
was
observed
to
have
experienced anxiety related to several
controversial meetings in Montgomery and
aggressive behaviors toward self and others
significantly intensified. Discussed the
Guardian ad Litem's and probation officer's
opposition to her placement at BayPointe.
Initial outbursts at BayPointe were related
primarily to food issues and program rules
(consistent with her history), current
frustration now seem[s] to be related to
uncertainty about her placement. She seems
to have lost trust in staff and states that
the Court plans to send her back to NDA.
Consumer
is
no
longer
interested
in
treatment,
may
not
be
successful
at
BayPointe due to these circumstances. We
discussed making recommendation to seek
alternative
placement
for
cons
at
a
facility with other deaf peers. She will
require same level of care.'
"It is signed Carla Ladnier.
1071250
16
"On October 9, 2007, Ms. Ladnier wrote in
[D.R.S.'s] chart that it is not in the child's best
interest to continue treatment at BayPointe and she
would be better served in a different residential
program. Ms. Ladnier instructed Ms. Ferrere to send
a letter to DHR regarding their recommendation. ...
"Alabama State
Department
of
Human
Resources
and
the State Multi-Needs Team have attempted to paint
a picture of the National Deaf Academy as being
prohibitively expensive in order to justify their
decision to place this child at BayPointe. There
was testimony that the cost for NDA is approximately
$525 per day. The cost per day for placement at
BayPointe is approximately $435 per day. The Court
does not find the difference in this cost to be
particularly significant, particularly in light of
the fact that the State Multi-Needs Team has,
throughout the recent past, placed numerous children
who are hearing impaired with special needs at the
National Deaf Academy. There was testimony that
there presently are two such children from the State
of Alabama placed at NDA.
"Clearly, all those involved with [D.R.S.] know
full well that BayPointe is not equivalent to the
National Deaf Academy and BayPointe employees admit
that BayPointe cannot provide services for [D.R.S.].
Despite
this
admission,
DHR
has
consistently
attempted to paint the services at BayPointe as
equivalent, but they are not. Ms. Hill had
predicted
that
[D.R.S.]
would
deteriorate
at
BayPointe, and such has been the case. Based on
DHR's protocols and Alabama statutes, if a natural
parent placed a child in a facility such as
BayPointe under these same facts and circumstances,
DHR would likely seek custody of the child with
abuse and neglect charges brought against that
parent. In this case, it is DHR who is the
custodial 'parent' and who has intentionally left
[D.R.S.] in a facility were she is harmed and
continues to deteriorate in this inappropriate
1071250
17
placement. Under these circumstances, this Court
must intervene to protect [D.R.S.].
"Based on the foregoing, a review of the record,
the testimony and the exhibits, it is hereby ordered
as follows:
"1. That the Court specifically finds that the
Alabama Department of Human Resources has not made
reasonable efforts to assure the health, safety and
educational and medical needs of [D.R.S.] by placing
her at BayPointe. Despite DHR's assertion that this
Court cannot tell DHR where to place a child, the
Court believes that when DHR fails or refuses to
protect a child from harm or mistreatment, the
Circuit Court must step in to stop the continued
medical maltreatment, over-medication and personal
violations of [D.R.S.].
"2.
That
[D.R.S.]
shall
be
immediately
transported to Mt. Dora, Florida, to the National
Deaf Academy (or other facility equivalent to the
National Deaf Academy), where she shall remain at
the expense of the State of Alabama until such time
as
she
is
able
to
function
and
communicate
independently; it is undisputed that presently
Alabama has no such facility within its borders.
"3. That copies of any and all records
pertaining to [D.R.S.] shall be regularly provided
to the Guardian ad Litem and [D.R.S.'s] Montgomery
County Juvenile probation officer.
"4. That based on the recommendation of the
probation officer, [D.R.S.'s] probation is hereby
extended for one year.
"5. That probation officer Fred Vrgora shall be
available to transport [D.R.S.] from BayPointe to
Mt. Dora, Florida, or equivalent facility. The
Guardian ad Litem may assist if her schedule
permits.
1071250
18
"6. That Mr. Vrgora and the Guardian ad Litem
shall monitor [D.R.S.'s] placement at NDA or
equivalent facility and notify the Court and DHR as
to progress or lack thereof.
"7. That the Court Orders that Mrs. Liz Hill be
reinstated
as
therapist
for
[D.R.S.]
by
the
Department of Mental Health, so as to allow her to
continue her work with this multi-needs child. Ms.
Hill had clearly made progress and has achieved a
level of trust which cannot be duplicated quickly.
It cannot be in this child's best interest to have
Ms. Hill summarily removed from interaction with
[D.R.S.].
"8. That based upon testimony from BayPointe
personnel
regarding
improper
restraints
and
continued injuries to this deaf, diabetic child,
together with their recent case notes, it appears
that BayPointe has communicated with the Department
of Human Resources to remove [D.R.S.] in an effort
to minimize their liability. The Court believes, as
previously stated, that immediate removal of this
child from this improper placement is necessary as
Ordered herein.
"9. That all Orders not modified herein remain
in full force and effect.
"10. That the Clerk shall transmit a copy of
this Order to counsel and/or the parties."
DHR then requested that the court reporter who recorded
the hearing provide DHR with a transcript of the evidentiary
hearing; however, the court reporter informed DHR that it
would have to obtain a court order authorizing the court
reporter to provide it with a transcript. Accordingly, DHR
1071250
19
moved the juvenile court to authorize the court reporter to
provide it with a transcript; the juvenile court denied DHR's
motion.
DHR filed a petition for a writ of mandamus to the Court
of Civil Appeals, seeking to have the November 13, 2007, order
vacated insofar as it directed (1) that D.R.S. be removed from
BayPointe and placed at the NDA or at an equivalent facility;
(2) that the State of Alabama pay the cost of placing D.R.S.
at the NDA; and (3) that Liz Hill, a DMH employee, be
reinstated as D.R.S.'s therapist. DHR also sought to have the
juvenile court's order denying it a transcript of the
evidentiary hearing vacated. The Court of Civil Appeals
granted the petition in part and denied it in part. Ex parte
Montgomery County Dep't of Human Res., [Ms. 2070163, May 23,
2008] ___ So. 2d ___ (Ala. Civ. App. 2008).
First, the Court of Civil Appeals held that DHR did
establish its right to a writ of mandamus directing the
juvenile court to vacate its November 13, 2007, order insofar
as the order required the State to pay the expense of placing
D.R.S. at the NDA. Section 12-15-10, Ala. Code 1975, a part
of the Alabama Juvenile Justice Act designates the county as
1071250
20
the entity responsible for maintenance and care of a juvenile.
The Court of Civil Appeals noted that in Ex parte Department
of Mental Health, 511 So. 2d 181 (Ala. 1987), this Court held
that an order of the Houston Juvenile Court directing DMH to
place a child at Charter Woods Hospital, a private facility,
for a psychiatric evaluation to be paid for by DMH violated §
12-15-10 and the separation-of-powers provisions of the
Alabama Constitution of 1901. ___ So. 2d at ___.
Second, the Court of Civil Appeals held that DHR was not
entitled to a writ of mandamus directing the juvenile court to
vacate its November 13 order insofar as the order required
that D.R.S. be placed at the NDA and that Liz Hill, a DMH
employee, be reinstated as her therapist. The Court of Civil
Appeals cited In re Morris, 491 So. 2d 244 (Ala. Civ. App.
1986), in which the juvenile court ordered that the child in
need of supervision be placed in a facility operated by the
State DHR and further ordered that under no circumstances was
the child to be sent to another facility, to be placed for a
visit, or to be released without the express written consent
of the court. The State DHR appealed, arguing that the
juvenile court had overstepped its constitutional authority by
1071250
21
adding those three conditions. The Morris court held that
the State DHR had been empowered with discretion to deal with
troubled children in a professional manner and that the
juvenile court was authorized to commit mentally disturbed
children to the care of the State DHR. However, the juvenile
court was not authorized to tell the State DHR how to exercise
that discretion, and there had been no allegations that the
State DHR had abused, neglected, or improperly treated the
child in Morris. The juvenile court's instruction that the
State DHR could not take any action without its prior written
approval invaded the State DHR's exercise of its discretion.
"'We are not to be understood as holding that the juvenile
court cannot review actions taken by the Department in
treatment and care of mentally disturbed children committed to
its care. All we are saying is that the Department must be
given an opportunity to carry out its legislative mandate.'"
Ex parte Montgomery County Dep't of Human Res., ___ So. 2d at
___ (quoting Morris, 491 So. 2d at 246). The Court of Civil
Appeals noted that Morris was distinguishable because in the
present case the juvenile court did not dictate to DHR how it
was to care for D.R.S. without first giving DHR the
1071250
22
opportunity to carry out its legislative mandate. The court
also noted that a juvenile court has the authority to review
a State agency's care of a child committed to its custody and
to direct the agency to change the child's care if the court
determines that the care the child is receiving is not in the
child's best interest.
Third, the Court of Civil Appeals held that DHR was
entitled to a writ of mandamus ordering the juvenile court to
vacate its order denying it a transcript of the evidentiary
hearing. Rule 20(B), Ala. R. Juv. P., provides that testimony
from a juvenile court shall be transcribed upon order of the
court or upon the request of any party at the requesting
party's expense. DHR filed a motion requesting that the
testimony from the evidentiary hearing be transcribed and
quoted Rule 20(B), Ala. R. Juv. P. The juvenile court denied
DHR's motion because DHR did not expressly offer to pay for
the transcript. However, DHR did quote from Rule 20(B),
implying that it was willing to comply with the rule.
Accordingly, the Court of Civil Appeals directed the juvenile
court to vacate its order denying DHR a transcript of the
evidentiary hearing.
1071250
Although DHR and DMH ask for a "statutory writ of
1
certiorari," they do not cite any authority regarding a
statutory writ of certiorari nor do they explain how such a
writ would apply in this case. Historically, the purpose of
a statutory writ of certiorari was to secure review by trial
de novo in the circuit court after the right of appeal was
lost, and it existed as the result of the interaction of
several statutory provisions that the legislature did not
carry forward into the Code of Alabama 1975. See Norton v.
Staples, 377 So. 2d 1095 (Ala. Civ. App. 1979).
23
In its petition to this Court, DHR and DMH ask this Court
to issue a writ of certiorari to direct the Montgomery Circuit
Court and the Court of Civil Appeals to send up the record,
including the transcript of the evidentiary hearing, so that
this Court may have the full record to review the important
constitutional separation-of-powers issue presented by this
case. DHR and DMH ask that a writ of mandamus or other order
"upon statutory
or common law certiorari review be issued to
[1]
the Court of Civil Appeals reversing the court's May 23, 2008,
opinion affirming [sic] the Montgomery County Circuit Court
Order directing that D.R.S. be placed at [the NDA or
equivalent facility] and directing that state employee Liz
Hill be reassigned to the case by the Department of Mental
Health and Mental Retardation as therapist because the order
exceeds the authority of the Court and violates Separation-of-
Powers under the Alabama Constitution." DHR and DMH argue
1071250
24
that the transcript of the evidentiary hearing and the record
will show that they were attempting to create an in-state
program for deaf children with mental-health problems and that
D.R.S. was receiving a full array of services at BayPointe.
They contend that this Court should issue a writ of
"certiorari to bring up the entire record in order to make a
fully
informed
decision
regarding
the
separation-of-powers
and
the boundaries of judicial discretion." It appears that DHR
and DMH are asking this Court to issue a writ of certiorari to
have the record and the transcript from the evidentiary
hearing reviewed by this Court in order that it can then
determine whether the Court of Civil Appeals erred in denying
DHR and DMH's petition for the writ of mandamus as to certain
portions of the juvenile court's order.
Discussion
DHR and DMH cite Max J. Winkler Brokerage, Co. v.
Courson, 160 Ala. 374, 49 So. 341 (1909), for the proposition
that this Court could issue a common-law writ of certiorari in
order to review the entire record because, they argue, a writ
of certiorari is issued by a superior court to an inferior
court to bring up the record and to determine whether the
1071250
25
judgment of the inferior court was erroneous. In that case,
the petition for a common-law writ of certiorari was filed in
the circuit court, seeking to have the proceedings in an
inferior court certified. They cite but do not discuss Ex
parte Hennies, 33 Ala. App. 377, 34 So. 2d 22 (1948), which
involved a common-law writ of certiorari to review the record
of the Jefferson County Court of Misdemeanors in a contempt
action. DHR and DMH quote from, but do not discuss, Nashville
Chattanooga & St. Louis Ry. v. Town of Boaz, 226 Ala. 441,
443, 147 So. 195, 196 (1933). In that case, this Court
stated: "The remedy by common-law certiorari only extends to
courts or boards required by law to keep a record or quasi
record of their proceedings, and the only proper return to the
writ is such record or a transcript thereof duly authenticated
by the legal custodian, as it exists at the time of the
issuance of the writ." In short, these three cases hold that
when an inferior court has acted based on the information
before it, a superior court could review the inferior court's
judgment in light of the same information that was before the
inferior court.
1071250
Part of the relief DHR sought, and received, in the Court
2
of Civil Appeals was a writ ordering the juvenile court to
26
In the present case, the Court of Civil Appeals would
have original jurisdiction over an appeal regarding D.R.S.,
and that court would also have original jurisdiction of a
petition for a writ of mandamus relating to a matter over
which it would have appellate jurisdiction. § 12-3-11, Ala.
Code 1975. In granting in part and denying in part DHR and
DMH's petition for the writ of mandamus, the Court of Civil
Appeals reached the merits of the case without the benefit of
the same information that was before the juvenile court. DHR
and DMH ask this Court to review the merits of the Court of
Civil Appeals' decision with the benefit of information that
was never before the Court of Civil Appeals. By their
petition for a writ of certiorari or the petition for a writ
of mandamus DHR and DMH can seek review of only the decision
of the Court of Civil Appeals, not the decision of the
juvenile court.
DHR and DMH have not complained, and could not complain,
that the Court of Civil Appeals erred in entertaining their
mandamus petition without the transcript from the hearing in
the juvenile court. In other words, DHR and DMH have not
2
1071250
vacate its order denying DHR a transcript of the evidentiary
hearing.
27
asked this Court to issue a writ of mandamus ordering the
Court of Civil Appeals to review the merits of the juvenile
court's decision in light of the transcript. Instead, they
ask this Court to review the Court of Civil Appeals'
disposition of the merits of the case, in light of the
transcript of the evidentiary hearing, which was not before
the Court of Civil Appeals. Absent any argument that the
Court of Civil Appeals erred in reaching the merits without
the transcript, there is no need for this Court to review the
transcript, and any issue surrounding the necessity for a
transcript has been waived. When a petitioner fails to argue
an issue in his brief, that issue is waived. See Ex parte
Martin, 775 So. 2d 202, 206 (Ala. 2000).
Even if DHR and DMH had not waived the issue regarding
the necessity of the transcript, the cases concerning a
common-law writ of certiorari have to do with the interaction
between an inferior court from which an appeal lies to a
superior court. As discussed earlier, this Court's review of
the decisions of tribunals from which an appeal lies to the
Court of Civil Appeals is limited, and we will not expand the
1071250
28
broad language in cases such as Max J. Winkler Brokerage
beyond the context in which the rule regarding common-law
writs of certiorari is stated.
Regarding the mandamus petition, DHR and DMH have not
shown that they have a clear legal right to the relief sought
because they waived any argument regarding the Court of Civil
Appeals' review of the juvenile court's order, and this Court
is limited in its appellate jurisdiction to reviewing the
Court of Civil Appeals' actions or misdeeds, not those of the
trial court.
Based on the foregoing, DHR and DMH's petition seeking
either a common-law or statutory writ of certiorari or a writ
of mandamus is denied.
PETITION DENIED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | December 5, 2008 |
29e675e4-75b6-4500-80a5-62f0dd918139 | Alfred Douglas Hammock, as executor of the estate of Annie L. Moncus, deceased v.Wal-Mart Stores, Inc., et al. | N/A | 1070939 | Alabama | Alabama Supreme Court | Rel:11/07/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070939
____________________
Alfred Douglas Hammock, as executor of the estate of Annie
L. Moncus, deceased
v.
Wal-Mart Stores, Inc., et al.
Appeal from Chambers Circuit Court
(CV-05-209)
BOLIN, Justice.
Alfred Douglas Hammock, as executor of the estate of
Annie L. Moncus, deceased, appeals from a summary judgment in
1070939
Hammock subsequently amended his complaint to add Wal-
1
Mart Stores East, L.P., as a defendant; Wal-Mart Real Estate
Business Trust, Inc., was dismissed as a defendant.
2
favor of Wal-Mart Stores, Inc., Wal-Mart Stores East, L.P.,
and Merissa Lashaun Ransom. We dismiss the appeal.
Facts and Procedural History
On the afternoon of December 29, 2004, Annie Moncus and
her husband, Elmer Boyd Moncus, were in the parking lot of the
Wal-Mart discount store in Valley, walking toward the entrance
of the store. While Annie and Elmer were walking through the
yellow-painted crosswalk, Annie was struck and killed by an
automobile driven by Ransom. At the time, Ransom was employed
at the Wal-Mart store and was returning from her lunch hour.
Ransom was on her way to the employee parking lot when the
accident occurred.
On September 29, 2005, Hammock, Annie's son, as executor
of his mother's estate, filed a wrongful-death action against
Ransom, alleging negligence and wantonness. Hammock also
named as defendants Wal-Mart Stores, Inc., and Wal-Mart Real
Estate Business Trust, Inc., which Hammock asserted owns the
1
property on which the Wal-Mart discount store is located,
alleging that at the time of the accident Ransom was acting
1070939
3
within the line and scope of her employment for Wal-Mart
Stores and Wal-Mart Real Estate and that, therefore, they were
liable for Ransom's negligence. He also alleged that Wal-Mart
Stores and Wal-Mart Real Estate negligently or wantonly
designed,
constructed,
controlled,
inspected,
and/or
maintained the parking lot and crosswalk where the accident
occurred and that they were negligent in training and
supervising their employees by allowing the employees to drive
through the customer parking lot, exposing business invitees
to an unreasonable risk of harm, instead of requiring
employees to take an alternate route to the employee parking
lot.
On January 2, 2008, Wal-Mart Stores and Wal-Mart Real
Estate filed a summary-judgment motion. Hammock filed a
response, and the trial court held a hearing on the motion.
On February 1, 2008, the trial court entered an order
dismissing Hammock's wantonness claim. The court granted Wal-
Mart Stores and Wal-Mart Real Estate's summary-judgment motion
with regard to Hammock's claim based on respondeat superior.
However, the trial court denied the summary-judgment motion as
to the remainder of Hammock's claims.
1070939
4
On February 13, 2008, Hammock filed a motion to amend his
complaint to remove his wantonness claim pursuant to the trial
court's order of February 1, 2008, and to add Wal-Mart Stores
East, L.P., as a party. On February 15, 2008, Hammock filed
a motion to alter, amend, or vacate the summary judgment on
his claim of respondeat superior. On March 3, 2008, Hammock
filed a motion dismissing Wal-Mart Real Estate as a defendant.
On March 4, 2008, the trial court granted Hammock's motion to
amend his complaint. That same day, the trial court entered
an order, finding, in pertinent part, as follows:
"[T]hat Ransom was not being paid by Wal-Mart at
the time of the accident, that Ransom was driving
her own vehicle, that Ransom was on her lunch hour
and not performing a special errand for Wal-Mart,
that Ransom was not compensated by Wal-Mart in any
manner for her travel time or expenses that day,
that Wal-Mart did not require Ransom to commute to
work in her own vehicle as a condition of her
employment, or that Ransom was not designated a
specific route through the parking lot by Wal-Mart
to the employee parking area. In the case at bar,
the court finds that there exists no genuine issue
of material fact and the defendants, Wal-Mart
Stores, Inc., and Wal-Mart Stores East, L.P., are
entitled to judgment as a matter of law on the issue
involving respondeat superior."
On March 19, 2008, the trial court entered an order
making the summary judgment against Wal-Mart Stores and Wal-
Mart Stores East (hereinafter referred to collectively as
1070939
5
"Wal-Mart") on the claim of respondeat superior final pursuant
to Rule 54(b), Ala. R. Civ. P. The claims against Ransom and
the other claims against Wal-Mart remain pending. Hammock
appealed.
Analysis
Hammock seeks to hold Wal-Mart liable under the doctrine
of respondeat superior for Ransom's action. Before we can
address that argument, however, it is necessary to determine
whether this Court has jurisdiction to hear Hammock's appeal.
In our recent case of North Alabama Electric Cooperative
v. New Hope Telephone Cooperative, [Ms. 1051800, October 17,
2008] So. 2d , (Ala. 2008), this Court stated:
"It is incumbent upon this Court to ensure that it
has jurisdiction to hear the appeal.
"'"As this court has said many times
previously, a final judgment is necessary
to give jurisdiction to this court on an
appeal, and it cannot be waived by the
parties. ..."
"'....
"'When it is determined that an order
appealed from is not a final judgment, it
is the duty of the Court to dismiss the
appeal ex mero motu.'
"Powell v. Republic Nat'l Life Ins. Co., 293 Ala
101, 102, 300 So. 2d 359, 360 (1974) (quoting
1070939
6
McGowin Investment Co. v. Johnstone, 291 Ala. 714,
715, 287 So. 2d 835, 836 (1973)).
"'Ordinarily, an appeal can be brought
only from a final judgment. Ala. Code
1975, § 12-22-2. If a case involves
multiple claims or multiple parties, an
order is generally not final unless it
disposes of all claims as to all parties.
Rule 54(b), Ala. R. Civ. P. However, when
an action contains more than one claim for
relief, Rule 54(b) allows the court to
direct the entry of a final judgment as to
one or more of the claims, if it makes the
express determination that there is no just
reason for delay.'
"Grantham v. Vanderzyl, 802 So. 2d 1077, 1079-80
(Ala. 2001).
"As noted above, the trial court certified its
judgment as final pursuant to Rule 54(b), Ala. R.
Civ. P. As this Court has held, however, '"[n]ot
every order has the requisite element of finality
that can trigger the operation of Rule 54(b)."'
Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d
354, 361 (Ala. 2004) (quoting Goldome Credit Corp.
v. Player, 869 So. 2d 1146, 1147 (Ala. Civ. App.
2003) (emphasis omitted from Dzwonkowski)). Indeed,
' " [ i ] t
b e a r s
repeating,
here,
that
'"[c]ertifications under Rule 54(b) should be
entered only in exceptional cases and should not be
entered routinely."' ... '"'Appellate review in a
piecemeal fashion is not favored.'"'"' Schlarb v.
Lee, 955 So. 2d 418, 419 (Ala. 2006) (quoting
Dzwonkowski, 892 So. 2d at 363, quoting in turn
State v. Lawhorn, 830 So. 2d 720, 725 (Ala. 2002),
and Goldome, 869 So. 2d at 1148) (other citations
omitted) (some emphasis added)). See, e.g.,
Winecoff v. Compass Bank, 854 So. 2d 611, 613 (Ala.
Civ. App. 2003); Moss v. Williams, 747 So. 2d 905,
907 (Ala. Civ. App. 1999).
1070939
7
"In Scrushy v. Tucker, 955 So. 2d 988 (Ala.
2006), this Court expounded on how courts determine
whether claims are so intertwined that a Rule 54(b)
certification is untenable. The Scrushy Court
quoted with approval the United States Court of
Appeals for the Seventh Circuit for '"certain rules
of thumb to identify those types of claims that can
never be considered separate"' for purposes of Rule
54(b). 955 So. 2d at 998 (quoting Stearns v.
Consolidated Mgmt., Inc., 747 F.2d 1105, 1108 (7th
Cir. 1984)). One such rule is that '"'claims cannot
be separate unless separate recovery is possible on
each.... Hence, mere variations of legal theory do
not constitute separate claims.'"' Id. (quoting
Stearns, 747 F.2d at 1108-09, quoting in turn
Amalgamated Meat Cutters v. Thompson Farms Co., 642
F.2d 1065, 1071 (7th Cir.1981)). The Scrushy Court
also noted the similar rule of the United States
Court of Appeals for the Second Circuit, see Rieser
v. Baltimore & Ohio R.R., 224 F.2d 198, 199 (2d Cir.
1955), which was summarized by the commentators of
Federal Practice and Procedure:
"'"A single claimant presents multiple
claims
for
relief
under
the
Second
Circuit's formulation when the possible
recoveries are more than one in number and
not mutually exclusive or, stated another
way, when the facts give rise to more than
one legal right or cause of action....
However, when a claimant presents a number
of legal theories, but will be permitted to
recover only on one of them, the bases for
recovery are mutually exclusive, or simply
presented in the alternative, and plaintiff
has only a single claim for relief for
purposes of Rule 54(b)."'
"955 So. 2d 998 (quoting 10 Charles Alan Wright et
al., Federal Practice & Procedure § 2657 (3d ed.
1998) (footnotes omitted))."
1070939
8
In the present case, the trial court certified as final
Hammock's claim against Wal-Mart based on respondeat superior.
Specifically, Hammock had alleged that Ransom was acting in
the line and scope of her employment at Wal-Mart when the
accident occurred because Wal-Mart required Ransom to park her
automobile in an employee parking lot and Ransom was operating
her car incident to and in furtherance of the duties assigned
her by Wal-Mart under its parking policy. Wal-Mart controls
the location of its employee and customer parking lots,
controls the design, construction, and operation of its
parking lots, and has the authority to control the routes
employees take to get to the employee parking lot. The trial
court concluded that Ransom was not acting within the line and
scope of her employment and that, therefore, Wal-Mart was not
liable under the doctrine of respondeat superior.
Hammock's remaining claim involves negligent supervision
and training. With regard to negligent supervision and
training, Hammock alleged in his complaint that Wal-Mart was
negligent in failing to adopt and to enforce appropriate
training policies requiring its employees to use an alternate
route to the employee parking lot so that employees would not
1070939
9
expose business invitees to an unreasonable risk of harm.
Hammock further alleged that Wal-Mart's failure to adopt and
to enforce such policies and "its failure to adequately train
and supervise [Ransom] by requiring her to take an alternate
route to the employee parking lot, subjected Mrs. Moncus to an
unreasonable risk of harm."
The respondeat superior claim certified under Rule 54(b),
Ala. R. Civ. P., and the negligent supervision and training
claim that remains to be adjudicated are "intertwined" because
of the common element they share. Like a claim of respondeat
superior, liability under a theory of negligent supervision is
based on the employment relationship. The trial court ruled
on Hammock's respondeat superior claim, determining that
Ransom was not acting within the line and scope of her
employment when she struck and killed Moncus. As a result, a
separate adjudication by the trial court on negligent
supervision and training leaves open the possibility of
"inconsistent results."
Accordingly, the trial court erred in certifying its
summary judgment on the claim of respondeat superior as final
pursuant to Rule 54(b), Ala. R. Civ. P. "When it is
1070939
10
determined that an order appealed from is not a final
judgment, it is the duty of the Court to dismiss the appeal ex
mero motu." Powell v. Republic Nat'l Life Ins. Co., 293 Ala.
101, 102, 300 So. 2d 359, 360 (1974).
APPEAL DISMISSED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, and
Parker, JJ., concur.
Murdock, J., concurs specially.
1070939
11
MURDOCK, Justice (concurring specially).
I fully concur in the main opinion. I write separately
to add that the "intertwining" of the respondeat superior
claims and the negligent supervision and training claims
against Wal-Mart Stores, Inc., and Wal-Mart Stores East, L.P.,
would appear to extend to the elements of causation and
damage, in addition to the element of line and scope of
employment. I also note for Rule 54(b), Ala. R. Civ. P.,
purposes that these two additional elements are common to the
remaining claims against Wal-Mart Stores and Wal-Mart Stores
East, which allege negligent design, construction, control,
inspection, and/or maintenance of the parking lot and
crosswalk where the accident occurred. | November 7, 2008 |
e9c3dfdb-d436-4690-9ce9-ce068ad4fc1a | Southside Community Development Corporation, by Frank C. GAlloway III as guardian ad litem. v. Jeffrey White | N/A | 1070989 | Alabama | Alabama Supreme Court | REL: 12/5/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070989
____________________
Southside Community Development Corporation, by Frank C.
Galloway III as guardian ad litem
v.
Jeffrey White
Appeal from Jefferson Circuit Court
(CV-07-2446)
SEE, Justice.
Frank C. Galloway III, as guardian ad litem for Southside
Community Development Corporation ("Southside"), appeals from
1070989
Section 6-6-562 provides that "[o]n the filing of a
1
complaint as authorized under Section 6-6-560, ... should the
identity of some, or all, of said defendants be unknown, the
court shall forthwith appoint a guardian ad litem to represent
and defend the interest of such ... unknown parties in the
proceeding."
2
a judgment in favor of Jeffrey White in an in rem action
seeking to quiet title to a parcel of real property.
Facts and Procedural History
Southside is the owner of record of a certain parcel of
real property in Birmingham ("the property"). Diane Vandiver
was the addressee who received tax notices for the property.
The State took title to the property in 1997 after Southside
failed to pay the annual tax assessment. White acquired title
to the property from the State on February 23, 2007, by paying
the tax lien and, on July 16, 2007, brought an in rem action
to quiet title in his name. White moved the trial court to
appoint a guardian ad litem under § 6-6-562, Ala. Code 1975,1
to protect the interests of Southside and Vandiver because he
could not locate the parties. The trial court appointed
Galloway. Galloway located Vandiver, who stated that she was
associated with Southside and that she was designated to
receive the property-tax bills. Vandiver disclaimed all
1070989
Section 40-10-82 provides that "[n]o action for the
2
recovery of real estate sold for the payment of taxes shall
lie unless the same is brought within three years from the
date when the purchaser became entitled to demand a deed
therefor ...."
Three owners of adjoining properties sought to intervene
3
in the case, alleging that they had an interest in the
property through adverse possession and through a deed
3
interest in the property, and, accordingly, she had no
interest for Galloway to represent at trial. Galloway also
located Betty Bock, an officer of Southside, who testified at
trial that Southside still existed as a legal entity but that
it was no longer in the development business and currently had
no assets to use to redeem the property. Southside moved for
a judgment as a matter of law at the close of White's case and
renewed that motion at the end of its case, arguing that White
had not adversely possessed the property for the requisite
three years as provided in § 40-10-82, Ala. Code 1975. The
2
trial court denied both motions. The trial court found that
the three-year statutory period within which Southside could
redeem the property under § 40-10-82 commenced when "the State
took the property for back taxes" as opposed to when White
obtained his tax deed to the property and entered a judgment
quieting title in the property in White. Southside appeals.3
1070989
purportedly executed by Southside on the day of the trial.
The trial court found that the deed was void and that the
interveners had no valid interest in the property. These
parties have not appealed the trial court's judgment;
therefore, we do not express any opinion on the correctness of
the trial court's judgment as to this matter.
4
Issue
The issue presented by this case is whether the three-
year statutory period of § 40-10-82 begins to run when the
property is transferred to the State for failure to pay taxes,
or, instead, begins to run when the tax purchaser becomes
entitled to a deed.
Standard of Review
The trial court entered its judgment after hearing ore
tenus testimony.
"'"'[W]hen a trial court hears ore tenus
testimony, its findings on disputed facts are
presumed correct and its judgment based on those
findings will not be reversed unless the judgment is
palpably erroneous or manifestly unjust.'"' Water
Works & Sanitary Sewer Bd. v. Parks, 977 So. 2d 440,
443 (Ala. 2007) (quoting Fadalla v. Fadalla, 929 So.
2d 429, 433 (Ala. 2005), quoting in turn Philpot v.
State, 843 So. 2d 122, 125 (Ala. 2002)). '"The
presumption of correctness, however, is rebuttable
and may be overcome where there is insufficient
evidence presented to the trial court to sustain its
judgment."' Waltman v. Rowell, 913 So. 2d 1083,
1086 (Ala. 2005) (quoting Dennis v. Dobbs, 474 So.
2d 77, 79 (Ala. 1985)). 'Additionally, the ore
tenus rule does not extend to cloak with a
1070989
5
presumption
of
correctness
a
trial
judge's
conclusions of law or the incorrect application of
law to the facts.' Waltman v. Rowell, 913 So. 2d at
1086."
Retail Developers of Alabama, LLC v. East Gadsden Golf Club,
Inc., 985 So. 2d 924, 929 (Ala. 2007).
Analysis
Section 40-10-82 provides that "[n]o action for the
recovery of real estate sold for the payment of taxes shall
lie unless the same is brought within three years from the
date when the purchaser became entitled to demand a deed
therefor ...." Southside argues that the three-year adverse-
possession period in § 40-10-82 did not begin to run until
White acquired the tax deed from the State.
"Section 40-10-82 has been construed as a 'short'
statute of limitations (Williams v. Mobil Oil
Exploration & Producing Southeast, Inc., 457 So. 2d
962 (Ala. 1984)), and does not begin to run until
the purchaser of the property at a tax sale has
become entitled to demand a deed to the land; and
the tax purchaser is entitled to 'quiet title'
relief only after being in exclusive, adverse
possession for the statutory three-year period.
Gulf Land Co. v. Buzzelli, 501 So. 2d 1211 (Ala.
1987)."
Reese v. Robinson, 523 So. 2d 398, 400 (Ala. 1988).
White argues that he should not have to adversely possess
the property for three years after acquiring his tax deed in
1070989
6
order to bring a quiet-title action because, in this case, the
record owner was not in possession and because he acquired
title from the State and not from the tax commissioner.
However, neither the plain language of § 40-10-83, Ala. Code
1975, which confers a right of redemption, nor our application
of the rule as set forth in Reese provides such an exception.
Moreover, we have held that § 40-10-83 "applies to cases where
the land is purchased from the State, as well as to instances
where the purchase is made from the tax collector." Gulf Land
Co. v. Buzzelli, 501 So. 2d 1211, 1213 (Ala. 1987) (citing
Merchants Nat'l Bank of Mobile v. Lott, 255 Ala. 133, 50 So.
2d 406 (1951)). See also McGuire v. Rogers, 794 So. 2d 1131,
1136 (Ala. Civ. App. 2000) ("[The] Supreme Court [of Alabama]
has applied the rule in Gulf Land to require the purchasers of
a tax deed to show that they have maintained continuous
adverse possession of the tax-sale property for three years to
defeat a right of redemption under 40-10-83 without regard to
possession by the redemptioner." (citing Reese, 523 So. 2d at
398)). In this case, the State issued White a tax deed on
February 23, 2007, and White sued on July 16, 2007, well short
of the three-year limitations period for redemption in § 40-
1070989
7
10-82. We hold that White's action to quiet title is
premature because "the owner's right of action is not
extinguished until the tax purchaser has retained adverse
possession for three years." Karagan v. Bryant, 516 So. 2d
599, 601 (Ala. 1987).
White argues that Almon v. Champion International Corp.,
349 So. 2d 15 (Ala. 1997), supports his argument that a tax-
deed purchaser can bring a quiet-title action before the
three-year statute of limitations in § 40-10-82 has run. In
Almon, Champion had failed to pay taxes on a piece of its
property because the tax notice had been sent to the previous
owner. The State bought the property for taxes owed, and
Almon
purchased
the
property
from
the
State
land
commissioner.
Champion brought an action to have title quieted in itself,
arguing that the tax deed was void. In holding that Almon's
tax deed was void, this Court stated:
"[T]he legislature has provided a beacon light by
which the purchaser at a tax sale can be assured he
has found a 'safe harbour.' This it does through
the special short statute of limitations which
enables the purchaser, who enters into adverse
possession for a period of three years, to acquire
good title without regard to the deficiencies
underlying the proceedings. Tit. 51, § 295, Code.
1070989
White also argues that Southside is no longer entitled
4
to be represented by the guardian ad litem because it is not
now an unknown party as designated in § 6-6-562; however, a
review of the record before the trial court reveals that White
did not raise this issue in the court below; therefore, we
will not address it on appeal. Andrews v. Merritt Oil Co.,
612 So. 2d 409, 410 (Ala. 1992). We also note that neither
party has challenged the propriety of the initial appointment
8
"It appears from the record before us that Almon
first acquired his tax deed on February 20, 1974.
A few months later, Champion instituted this action
and thereby foreclosed any possibility that Almon
could perfect a good title under the three year
statute. If Almon is to prevail, it must be on the
strength of the title he acquired from his tax
deed."
Almon, 349 So. 2d at 17. White argues that this implies that
the holder of a valid tax deed need not wait until the
expiration of the three-year limitations period before
bringing a quiet-title action. However, although the above-
quoted language indicates that the prior owner can bring an
action to quiet title prior to the running of the § 40-10-82
three-year period, it does not stand, either expressly or by
implication, for the proposition that a tax purchaser can
bring an action to quiet title prior to the running of the
three-year statutory period of § 40-10-82. Almon is,
therefore, distinguishable, and White's argument with regard
to that case is without merit.4
1070989
of the guardian ad litem under § 6-6-562.
Southside also argues that White has not shown that he
5
adversely possessed the property. Because White's action to
quiet title was premature, we do not address this argument.
9
Conclusion
Because the owner's right of redemption has not yet been
extinguished, title cannot be quieted in White based on his
tax deed. Therefore, we reverse the trial court's judgment
5
and remand the case to the trial court for proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | December 5, 2008 |
0b86ef29-1356-452d-bf11-1e28eb0d52a3 | Ex parte Donald Deardorff. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Donald Deardorff v. State of Alabama) | N/A | 1040163 | Alabama | Alabama Supreme Court | Rel: 10/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1040163
____________________
Ex parte Donald Deardorff
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Donald Deardorff
v.
State of Alabama)
(Baldwin Circuit Court, CC-00-151;
Court of Criminal Appeals, CR-01-0794)
On Application for Rehearing
PARKER, Justice.
This Court's opinion of January 4, 2008, is withdrawn,
and the following is substituted therefor.
1040163
2
Donald Deardorff petitions for a writ of certiorari to
review the decision of the Court of Criminal Appeals affirming
his convictions for capital murder and his sentence of death.
We affirm. The facts pertinent to our review are as follows:
On September 22, 1999, Donald Deardorff, armed with a
stolen handgun and accompanied by an associate, Millard
Peacock, broke into the house of Ted Turner, a local
businessman in Mobile, with whom Deardorff had had some
dealings that had resulted in Turner's pursuing legal action
against Deardorff. They awaited Turner's return to the house,
at which time they subdued him at gunpoint. They kept Turner
in a closet with his hands bound with duct tape. Over the
course of the next 24 hours, Deardorff forced Turner to write
5 checks to Peacock for a total of $21,750. Peacock cashed
the checks at a bank and gave the money to Deardorff. On
September 24, 1999, Deardorff and Peacock drove Turner, whose
hands and mouth were taped with duct tape and whose head was
covered with a pillowcase that was taped in place, to the end
of a logging road, at a point at which the road was blocked by
a gate. There, they walked Turner, who had recently had knee
surgery, to the end of the road and shot him four times in the
1040163
3
head, killing him. Turner's body remained undiscovered until
July 2001. Deardorff was arrested in October 1999 for
possessing a firearm without a permit; he was subsequently
convicted on several capital-murder and other charges and was
sentenced to death.
Deardorff was charged in a 23-count indictment with
capital murder and related offenses surrounding Turner's
death. A jury convicted him of three counts of capital murder,
seven counts of theft, and one count of receiving stolen
property. After a penalty-phase hearing, a jury, by a 10-2
vote, recommended the imposition of the death penalty. After
a separate hearing, the trial court followed the jury's
recommendation and sentenced Deardorff to death. On June 25,
2004, the Court of Criminal Appeals affirmed the capital-
murder convictions and the sentence of death but ordered the
seven
theft
convictions vacated because they violated
Deardorff's double-jeopardy rights. Deardorff v. State, [Ms.
CR-01-0794, June 25, 2004] __ So. 2d __ (Ala. Crim. App.
2004). The Court of Criminal Appeals remanded the case to the
trial court for the limited purpose of vacating the seven
theft convictions and the associated sentences. On September
1040163
4
17, 2004, the Court of Criminal Appeals, on return to remand,
affirmed the trial court's action in vacating the theft
convictions, without an opinion. Deardorff petitioned this
Court for a writ of certiorari seeking review of 21 claimed
conflicts and/or errors in the Court of Criminal Appeals'
opinion. We granted certiorari on four grounds, including
three evidentiary issues and Deardorff's claim that the trial
court improperly found as an aggravating circumstance that the
offense was "especially heinous, atrocious, or cruel," when
compared to other capital offenses. Because no objection was
made at trial on the evidentiary issues, Deardorff has
petitioned this Court to conduct a plain-error review of those
issues under Rule 39(a)(2)(A), Ala. R. App. P.
Legal Analysis
I. Was the offense "especially heinous, atrocious, or
cruel," when compared to other capital offenses?
Deardorff asserts that the Court of Criminal Appeals'
holding that "'[t]he trial court's determination that the
evidence
established
the
§
13A-5-49(8)
aggravating
circumstance,
that
the murder was especially heinous,
atrocious, or cruel, is fully supported by the record'"
conflicts with both the record in this case and this Court's
1040163
5
decision in Ex parte Clark, 728 So. 2d 1126 (Ala. 1998).
Deardorff's petition at 24 (quoting Deardorff, __ So. 2d at
__).
The trial court ruled that Deardorff's execution-style
murder of Turner fell within the meaning of the "especially
heinous, atrocious, or cruel" aggravating circumstance; the
Court of Criminal Appeals determined that there was sufficient
evidence
to
support
a
finding
that
that
aggravating
circumstance existed, stating:
"From the moment Deardorff threatened Turner with
'blowing his brains out' to the moment he was forced
to kneel, bound and with his head covered with a
pillowcase secured with duct tape, Turner's fear for
his life was undoubtedly great. ... The terror he
experienced must have escalated tremendously when
his mouth was taped and his hands were bound as he
was taken away from his home, driven away in his own
car. When the pillowcase was taped and he could no
longer see where he was being taken, he had to know
that his death was imminent."
Deardorff, ___ So. 2d at ___.
Deardorff disputes whether Turner was aware of his
impending death. However, the evidence introduced at trial
shows that at one point while Turner was being held captive by
Deardorff and Peacock, Deardorff drew his gun, pointed it at
Turner, and told him to be quiet and say nothing or Deardorff
1040163
6
would "blow his brains out." Turner pleaded with Deardorff,
telling him that he would give him whatever he wanted so long
as Deardorff did not kill him. Two months before his death,
Turner had made a notation on his will, which had been
executed in January 1999, reaffirming its validity "just in
case Don Deardorff is really crazy." Thus, there is sufficient
evidence indicating that Turner was aware of his impending
death through the threat, the fears, the pleas, the final
abduction in the car, and the forced walk down a dirt road.
The Court of Criminal Appeals repeatedly asserted in its
opinion that Turner was forced to kneel on the ground before
he was shot; however, the only eyewitness to the killing,
Peacock, testified that he was not aware that Deardorff was
going to shoot Turner, and he testified that "[Deardorff]
walked [Turner] a few more feet and he shot him." Deardorff's
brief at 83 and 85. The State concedes that evidence in
support of those statements in the Court of Criminal Appeals'
opinion that Turner was "forced to kneel" is lacking:
"Deardorff makes much of the statements in the Court
of Criminal Appeals' opinion that Turner was 'forced
to kneel' before he died. This finding was not made
by the trial court, nor did the State argue [that]
this was the case. The evidence is silent on this
question. But the finding is not necessary to
1040163
7
support the [aggravating circumstance that the
offense
was
especially heinous, atrocious, or
cruel].... [S]tanding or kneeling, Turner had every
reason to fear that his death was imminent and
unpreventable. The trial court properly found that
the murder of Ted Turner was 'especially heinous,
atrocious, or cruel.' No error, much less plain
error, occurred."
State's brief at 54-55. The absence of evidence indicating
that Turner was forced to kneel, however, does not negate the
impact of the evidence previously cited showing Turner's fear
and his knowledge of his impending death.
This Court discussed the meaning of the words "especially
heinous, atrocious or cruel," as used in § 13A-5-49(8), Ala.
Code 1975, in Ex parte Clark as follows:
"We cannot depart from the established meaning
of the words enacted by the Legislature–-'especially
heinous, atrocious or cruel'–- and apply those words
to
include
murders
that
do
not
involve
the
infliction of torture on the victim. Such a
departure would abandon the essential characteristic
that made our previous applications of § 13A-5-49(8)
compatible with the Eighth Amendment. We are bound
to retain the interpretation of 'especially heinous,
atrocious or cruel' that has provided a consistent
and principled distinction between those murders for
which the death penalty sentence is appropriate and
those for which it is not. See [Maynard v.]
Cartwright, 486 U.S. [356] at 363, 108 S. Ct. 1853
[(1988)]; Godfrey [v. Georgia], 446 U.S. [420] at
433, 100 S. Ct. 1759 [(1980)]."
728 So. 2d at 1140-41. This Court in Ex parte Clark refused to
1040163
8
expand the definition of "especially heinous, atrocious or
cruel" to include murder not involving torture:
"The State urges us to hold that the 'execution-
style' murder in this case, for which the record
does
not
reflect
torture
of
the
victim,
is
nonetheless
'especially
heinous,
atrocious
or
cruel.' Such an expansion of the aggravating
circumstance set out in § 13A-5-49(8) to encompass
a murder not involving torture, merely because the
State labels the murder an 'execution-style' slaying
would abandon the very interpretation that the
Eleventh Circuit held critical to the constitutional
application
of
that
aggravating
circumstance.
Indeed, the Supreme Court of the United States has
held that a state supreme court's failure to apply
its previously recognized limiting construction of
an
aggravating
circumstance, which required a
finding of torture or aggravated battery of the
victim, rendered the application of the aggravating
circumstance
unconstitutional.
Godfrey
[v.
Georgia], 446 U.S. [420,] 429, 432, 100 S.Ct. 1759
[(1980)]."
728 So. 2d at 1140.
When considering whether a particular capital offense is
especially heinous, atrocious, or cruel, the Court of Criminal
Appeals adheres to the standard set out in Ex parte Kyzer, 399
So. 2d 330, 334 (Ala. 1981), namely, the particular offense
must be one of those "'conscienceless or pitiless homicides
which are unnecessarily torturous to the victim.'" Duke v.
State, 889 So. 2d 1, 36 (Ala. Crim. App. 2002).
"One
factor
this
Court
has
considered
particularly indicative that a murder is 'especially
1040163
9
heinous, atrocious or cruel' is the infliction of
psychological torture. Psychological torture can be
inflicted where the victim is in intense fear and is
aware of, but helpless to prevent, impending death.
Such torture 'must have been present for an
appreciable lapse of time, sufficient enough to
cause prolonged or appreciable suffering.' Norris v.
State, 793 So. 2d 847, 861 (Ala. Crim. App. 1999)."
Ex parte Key, 891 So. 2d 384, 390 (Ala. 2004). See also Ex
parte Rieber, 663 So. 2d 999, 1003 (Ala. 1995).
Deardorff has not shown any merit in his claim that the
aggravating circumstance that the offense was especially
heinous, atrocious, or cruel does not exist here. Being
threatened with death, being held in captivity and confined in
a closet, being transported by car while his head was hooded
and his hands taped, being forced to walk down the dirt road
with a hood over his head and his hands taped, and the events
immediately
preceding
Turner's
killing
constitute
psychological torture so as to meet the standard for a murder
that is "especially heinous, atrocious, or cruel." There was
no plain error in the trial court's finding that Turner's
murder was especially heinous, atrocious, of cruel, and
Deardorff is not entitled to any relief on this claim.
II. Did the trial court err in admitting evidence of
Deardorff's prior bad acts?
1040163
10
Deardorff specifically challenged certain testimony that
he asserts constitutes the improper admission of evidence of
prior bad acts: testimony that Deardorff had killed several
people before Turner's murder, that he had illegally possessed
a handgun, and that he had been incarcerated in the
penitentiary before Turner's murder.
Because no objection was made to this testimony at trial,
Deardorff has petitioned this Court for plain-error review of
this issue, under Rule 39(a)(2)(A), Ala. R. App. P.
"As this Court stated in Hall v. State, 820 So.
2d 113, 121-22 (Ala. Crim. App. 1999), aff'd, 820
So. 2d 152 (Ala. 2001), regarding our standard of
review when conducting a plain-error analysis:
"'The standard of review in reviewing a
claim under the plain-error doctrine is
stricter
than
the
standard
used
in
reviewing an issue that was properly raised
in the trial court or on appeal. As the
United States Supreme Court stated in
United States v. Young, 470 U.S. 1, 105 S.
Ct. 1038, 84 L. Ed. 2d 1 (1985), the
plain-error doctrine applies only if the
error is "particularly egregious" and if it
"seriously
affect[s]
the
fairness,
integrity or public reputation of judicial
proceedings." See Ex parte Price, 725 So.
2d 1063 (Ala. 1998), cert. denied, 526 U.S.
1133, 119 S. Ct. 1809, 143 L. Ed. 2d 1012
(1999); Burgess v. State, 723 So. 2d 742
(Ala. Cr. App. 1997), aff'd, 723 So. 2d 770
(Ala. 1998), cert. denied, 526 U.S. 1052,
119 S. Ct. 1360, 143 L. Ed. 2d 521 (1999);
1040163
11
Johnson v. State, 620 So. 2d 679, 701 (Ala.
Cr. App. 1992), rev'd on other grounds, 620
So. 2d 709 (Ala. 1993), on remand, 620 So.
2d 714 (Ala. Cr. App.), cert. denied, 510
U.S. 905, 114 S. Ct. 285, 126 L. Ed. 2d 235
(1993).'"
Irvin v. State, 940 So. 2d 331, 341 (Ala. Crim. App. 2005).
As to the testimony that Deardorff had previously killed
several other people, we note that defense counsel, during
the cross-examination of Walter Fambro, a convict in whom
Deardorff had confided while they were both incarcerated,
admitted into evidence a letter from Fambro to federal
authorities detailing conversations Fambro alleged he had had
with both Peacock and Deardorff about Turner's murder. On
redirect
examination,
the
prosecutor
questioned
Fambro
concerning that letter. When asked to read a page of the
letter, Fambro stated that Deardorff had mentioned to him that
he had committed other murders. The now complained-of
testimony by Fambro was based entirely on the letter admitted
into evidence as a defense exhibit. State's brief at 30.
Likewise, as to the testimony that Deardorff had
previously been incarcerated in a penitentiary, Alabama Bureau
of Investigation Agent Andrew Huggins read from a report that
had been admitted into evidence by the defense for impeachment
1040163
12
purposes; the report stated that Deardorff told police when he
was arrested for Turner's murder that he was on probation for
another offense. Deardorff now complains that this testimony
was admitted in error, when this information was in fact
placed in evidence by defense counsel.
The scope of cross-examination in Alabama is quite broad.
Rule 611(b), Ala. R. Evid. This means that any question may be
asked on cross-examination that is relevant either to any
substantive issue in the case or to the witness's credibility.
See Rule 611(b), Ala. R. Evid., Advisory Committee's Notes.
The trial court shall exercise reasonable control over the
mode and order of interrogating witnesses and presenting
evidence. Rule 611(a), Ala R. Evid. Deardorff challenges both
the testimony that he had previously killed several people
and that he had previously been incarcerated, and he asserts
that such testimony constitutes the improper admission of
evidence of prior bad acts under Rule 404(b), Ala. R. Evid.
The testimony, however, was not offered to introduce
Deardorff's prior bad acts and to show that he acted in
conformity with those prior bad acts, but was elicited on
redirect examination by the State regarding documents that
1040163
13
had already been offered into evidence by the defense on
cross-examination.
"[O]n redirect examination, the object is to answer
any matters brought out on the cross-examination of
the witness by his adversary. Whether, on redirect
examination, a calling party may elicit from a
witness matters which do not rebut that which was
brought out on cross-examination is within the
discretion of the trial court."
Charles Gamble, McElroy's Alabama Evidence § 439.01(1) (5th
ed. 1996) (footnote omitted). See Sistrunk v. State, 596 So.
2d 644, 647 (Ala. Crim. App. 1992).
"It does not seem consonant with sound principles of
judicial
administration
to
allow
a
party
to
introduce evidence and assert on appeal that the
trial court erred to reversal by admitting that
evidence. In 32A C.J.S. Evidence § 1040(1) (1964)
the appropriate rule is stated:
"'[A] party who has introduced certain
evidence cannot subsequently object that
...
it
should
not
be
given
such
consideration as its natural probative
value entitled it to, or that it is
insufficient to sustain a judgment based
thereon.' (Footnotes omitted.)"
Peterson v. Jefferson County, 372 So. 2d 839, 842 (Ala. 1979).
"'Under the doctrine of invited error, a defendant
cannot by his own voluntary conduct invite error and
then seek to profit thereby.' Phillips v. State, 527
So. 2d 154, 156 (Ala. 1988). Although evidence that
he had been convicted of a prior crime would not
ordinarily have been admissible at trial, the
appellant cannot claim that it was error to receive
1040163
14
testimony concerning his arrest for a parole
violation when he injected the issue into the
trial."
Franklin v. State, 644 So. 2d 35, 38 (Ala. Crim App. 1994).
As to the testimony that Deardorff was in illegal
possession of a gun, testimony was elicited that Deardorff had
told Peacock that his grandmother's house had been broken into
and that the gun was reported stolen. However, the testimony
indicated that Deardorff later found the gun but did not tell
anyone it had been recovered; instead, he kept it. Deardorff
was questioned as a suspect in Turner's disappearance on
October 1, 1999, when the car in which he was riding was
stopped by the police. A gun was found during a search of the
car, along with the proceeds from the checks Deardorff had
forced Turner to write. In a tape-recorded interview,
Deardorff admitted that he had lied about having the gun
because he was afraid of going back to the penitentiary.
Deardorff was arrested on a charge of possessing a firearm
without a permit; the offense he expressed concern about was
possession of a firearm by a convicted felon.
"'[T]he State is not permitted to give in
evidence other crimes alleged to have been
committed by the defendant unless they are
so connected by circumstances with the
1040163
15
particular crime charged as that proof of
one fact with its circumstances has some
bearing on the issue on trial other than to
show in the defendant a tendency or
disposition to commit the crime with which
he is charged.'"
Ex parte Casey, 889 So. 2d 615, 618 (Ala. 2004) (quoting
Garner v. State, 269 Ala. 531, 533, 114 So. 2d 385, 386 (1959)
(emphasis omitted)).
Deardorff challenges the admission of this testimony --
two concerning prior bad acts and one concerning the source of
a gun in Deardorff's possession, also involving a prior bad
act. The first two were derived from evidence admitted by
Deardorff, and, under the doctrine of invited error, he may
not challenge evidence he has presented to the court. The
testimony regarding his retention of a gun after it was
reported stolen from his grandmother's house was related to
one of the offenses actually charged in the indictment,
receiving stolen property, in that it was intended to
establish the source of the gun in his possession. His
challenge on appeal to the evidence has no merit, and there
was no error in admitting the testimony at trial.
III. Did the trial court err in allowing the State's
expert witness to testify to facts not in evidence?
1040163
16
Deardorff contends that the testimony of George Glaser,
an agent of the Federal Bureau of Investigation who testified
as an expert for the State, was based on hearsay and on
collateral sources that were not admitted into evidence.
Rule 703, Ala. R. Evid., requires that the facts or data
relied upon by the expert in testifying and procured by the
expert other than by firsthand knowledge generally must be
admitted into evidence. See Charles Gamble, McElroy's Alabama
Evidence § 127.02(5) (5th. ed. 1996). It is clear that under
Alabama law the State must introduce into evidence the
information upon which an expert relies. See Ex parte Wesley,
575 So. 2d 127, 129 (Ala. 1990) (holding that reversible error
occurred where expert, in giving opinion on defendant's mental
condition, based opinion in part on police reports and medical
records that were not admitted into evidence).
"Alabama has followed the traditional rule. Carroll
v. State, 370 So. 2d 749 (Ala. Cr. App.), cert.
denied, 370 So. 2d 761 (Ala. 1979); Hurst v. State,
356 So. 2d 1224 (Ala. Cr. App. 1978); Cordle v.
State, 53 Ala. App. 148, 298 So. 2d 77, cert.
denied, 292 Ala. 717, 298 So. 2d 85 (1974), cert.
denied, 419 U.S. 1033, 95 S. Ct. 516, 42 L. Ed. 2d
309 (1974). However, in Nash v. Cosby, 574 So. 2d
700 (Ala. 1990), the Alabama Supreme Court modified
the traditional rule by allowing a medical expert to
give opinion testimony based in part on the opinions
of others when those other opinions are found in the
1040163
17
medical records admitted into evidence. However, as
the Alabama Supreme Court noted in Ex parte Wesley[,
575 So. 2d 127 (Ala. 1990)], Nash did not change
'the traditional rule followed in Alabama that the
information upon which the expert relies must be in
evidence,' 575 So. 2d at 129 (footnote omitted). In
Ex parte Wesley, the expert, in giving his opinion
on the mental condition of the defendant in that
case, based his opinion in part on police reports
and medical records that were not in evidence.
Following the traditional rule, as modified, the
Wesley
court
found
the
expert's
testimony
inadmissible. More recently, in W.S. v. T.W., 585
So. 2d 26 (Ala. 1991), Justice Houston, the author
of the opinion in Ex parte Wesley, in an effort to
clarify the rule in Alabama, stated in a concurring
opinion, as follows:
"'It is my understanding that an
expert witness may give opinion testimony
based upon facts of which he has personal
knowledge; based upon opinions of others,
if these are opinions of a type customarily
relied upon by the expert in the practice
of his profession; or based upon facts that
are assumed in a hypothetical question. In
any event, the facts known to the expert,
the
opinions
of
others
of
a
type
customarily relied upon by the expert in
the practice of his profession, and the
hypothesized facts must all be facts in
evidence.'
"585 So. 2d at 29."
Madison v. State, 620 So. 2d 62, 68 (Ala. Crim. App. 1992).
Deardorff asserts that the prosecution relied on the
testimony of Agent Glaser, using information obtained from two
computers–-one belonging to Turner and one belonging to Dawn
1040163
18
Dunaway, Peacock's girlfriend–-to place Deardorff in a
particular place and time to prove that Deardorff, and not
Peacock, the only witness against him, was the killer. Agent
Glaser analyzed the computers, searching for information
provided by Tom Montgomery, an agent with the Federal Bureau
of Investigation. Agent Glaser testified that Agent Montgomery
gave him a list of words, all of which he found on the hard
drives of the computers he examined. Agent Glaser "was not
sure exactly how [Agent Montgomery] derived that information
during the investigation, but when I got [the words] they were
there."
The State contends that all the facts upon which Agent
Glaser based his testimony were within his direct knowledge.
State's brief at 35. Deardorff states:
"Agent Glaser testified that his analysis of the
computer hard drives was based on information
provided to him by a third party, Agent Montgomery.
... In describing his methodology, Agent Glaser
testified that [Agent] Montgomery gave him some
information, including a list of words or part
numbers [for automobile parts] ... and he was 'not
sure exactly' how Agent Montgomery derived that
information."
Deardorff's reply brief at 15.
However, before Agent Glaser testified, Agent Montgomery
1040163
19
had already testified, and he presented substantial evidence
that laid the foundation for Agent Glaser's analysis.
"The relevance
of
computer
searches
performed
by
Agent Glaser had already been demonstrated by
evidence
admitted
during
Agent
Montgomery's
testimony. For example, documents found in a car
Deardorff had used, which Agent Montgomery described
as receipts from car parts ordered on the internet
in Turner's name, were admitted into evidence. ...
Similarly, Agent Montgomery testified that other
website names were discovered based on reports from
Turner's family that they had discovered websites on
Turner's computer that were 'odd, unusual, out of
character sites visited on the dates in question
when Mr. Turner was missing.' ... Receipt for orders
placed on Turner's credit card, provided by the
credit card company and the various merchants, were
also admitted into evidence. ... Agent Montgomery
also testified concerning the seizing of the
computers and the handing off of the computers to
Agent Glaser for analysis."
State's brief at 35-36 n.12.
Therefore, the basis for Agent Glaser's testimony
regarding information Agent Glaser sought on the computers had
already been admitted into evidence when Agent Glaser
testified. We find no plain error.
IV. Did the prosecutor's arguments in the penalty phase
amount to improper "testifying"?
Deardorff
asserts
that
the
prosecutor
improperly
"testified" in the penalty phase of his trial. Specifically,
Deardorff states:
1040163
20
"The
prosecutor
presented
as
evidence
facts,
inferences, and opinions going to critical issues at
the penalty phase .... The prosecutor offered
testimony that the victim suffered 'extensive pain,'
'great fear in his heart,' and 'great torture in his
mind' and that he was kept 'gagged and bound' in his
house and dragged to his death."
Deardorff's reply brief at 21-22.
During the penalty phase of Deardorff's trial, the State
offered no evidence; instead, it relied on the evidence
presented during the guilt phase of the trial. See § 13A-5-
45(c), Ala. Code 1975. However, the trial court allowed the
prosecutor to "argue" the properly incorporated evidence
during the evidentiary stage of the penalty phase. According
to Deardorff, "[t]his ... misconduct apparently is infrequent
in Alabama capital trials, as [his] research has [found] no
published decisions dealing with [this] precise situation."
Deardorff would have us recognize the allowance of such
argument as plain error. Under the facts of this case, we
will not do so.
Deardorff's
trial
counsel
did
not
object
to
the
prosecutor's untimely argument. This failure weighs against
the claim of prejudice Deardorff makes on appeal. See Brooks
v. State, 973 So. 2d 380, 387 (Ala. Crim. App. 2007). "To
1040163
21
rise to the level of plain error, the claimed error must not
only seriously affect a defendant's 'substantial rights,' but
it must also have an unfair prejudicial impact on the jury's
deliberations." Hyde v. State, 778 So. 2d 199, 209 (Ala.
Crim. App. 1998), aff'd, 778 So. 2d 237 (Ala. 2000). We
cannot conclude that the prosecutor's arguments seriously
affected Deardorff's substantial rights or that they had an
unfair impact on the jury's penalty-phase deliberations.
At the conclusion of the guilt phase, the trial court
carefully charged the jury on the applicable law. The jury
was told three times that the arguments of the attorneys were
not evidence. As the trial court began its instructions to
the jury during the penalty phase, it reminded the jury of the
instructions given at the end of the guilt phase and offered
to recharge the jury if any juror felt that it was necessary
for it to do so. No juror requested any repetition of the
earlier instructions. Under these circumstances, we consider
it highly unlikely that any juror considered the prosecutor's
untimely arguments to be evidence. In fact, the prosecutor
specifically asked the jury to consider the evidence that it
had already heard in the guilt phase. At no point did the
1040163
22
prosecutor suggest that the jury disregard the evidence or
substitute his recollection of the evidence for its own.
In his application for rehearing, Deardorff alleges that
the prosecutor's untimely argument referred to "facts that
were unproven by reliable, sworn testimony." Our review of
the record indicates that that is not the case. For example,
the prosecutor argued that the victim had suffered a fractured
cheekbone that would have been painful. A forensic pathologist
had testified that the fracture had resulted from blunt-force
trauma and that it would have caused severe pain. Although
Deardorff argues that there was no evidence indicating that
Turner's cheekbone was fractured before Turner was killed, he
ignores evidence elicited by defense counsel on cross-
examination
of
prosecution witness Walter Fambro that
Deardorff told him that he and Peacock had taken turns beating
Turner until Turner lost consciousness. In fact, during the
cross-examination of the forensic pathologist, Deardorff's
trial counsel raised the possibility that the blunt-force
trauma had rendered Turner unconscious before the shooting.
We certainly do not sanction allowing any attorney to
make arguments during the evidentiary stage of the penalty
1040163
23
phase of a capital-murder trial. However, under the facts of
this case, we cannot conclude that allowing such an argument
amounted to plain error. See Brooks, 973 So. 2d at 387.
Conclusion
Based on the foregoing, the judgment of the Court of
Criminal Appeals is affirmed.
APPLICATION OVERRULED; OPINION OF JANUARY 4, 2008,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.
See, Lyons, Woodall, Smith, and Bolin, JJ., concur.
Murdock, J., concurs in the result.
Cobb, C.J., and Stuart, J., recuse themselves. | October 31, 2008 |
b1d5791f-cc99-490c-ae39-eebfe1dc82ac | Flying J Fish Farm et al. v. Peoples Bank of Greensboro et al. | N/A | 1061833 | Alabama | Alabama Supreme Court | REL: 10/24/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061833
____________________
Flying J Fish Farm et al.
v.
Peoples Bank of Greensboro et al.
____________________
1070120
____________________
Peoples Bank of Greensboro et al.
v.
Flying J Fish Farm et al.
2
____________________
1070140
____________________
Flying J Fish Farm et al.
v.
Alabama Catfish, Inc., d/b/a Harvest Select
Appeals from Hale Circuit Court
(CV-04-12)
SEE, Justice.
Flying J Fish Farm, Charles Jay, and Charles's mother
Anne Jay (hereinafter referred to collectively as "the Jays")
and Renee Laurie Jay ("Renee"), Charles's wife, appeal from a
summary judgment in favor of Peoples Bank of Greensboro
("Peoples Bank"), its directors, Wynne Coleman, and C. Reid
Lawson, Jr. (hereinafter referred to collectively as "the
Peoples Bank defendants"), on the Jays' claims of breach of
fiduciary duty, suppression, deceit, unjust enrichment, and
conspiracy and on Renee's claim of loss of consortium (case
no. 1061833). The Jays and Renee also appeal from a summary
judgment in favor of Alabama Catfish, Inc., d/b/a Harvest
Select ("Alabama Catfish"), on all of their claims against it
(case no. 1070140). The Peoples Bank defendants cross-appeal,
1061833, 1070120, and 1070140
3
pursuant to Rule 5, Ala. R. App. P., from the trial court's
denial of their motion for a summary judgment on the Jays'
negligence and/or wantonness and negligent- and/or wanton-
supervision claims (case no. 1070120). We affirm in case no.
1061833 and case no. 1070140, and we reverse and remand in
case no. 1070120.
Facts and Procedural History
The Jays entered the catfish-farming business around
1994. At that time Charles Jay met with Wynne Coleman, a loan
officer at Peoples Bank, to secure financing for the business
venture, which was named the Flying J Fish Farm. Coleman
initially refused to provide financing for the venture because
Charles could not offer collateral to guarantee the loan.
Charles returned to the bank with Anne, and, based on her
personal guarantee, Coleman agreed to provide financing for
the Flying J Fish Farm. Coleman renewed and modified the loan
each year in order to finance the continuing operations and
the expansion of the Flying J Fish Farm, until his retirement
in 1998. Upon Coleman's retirement, C. Reid Lawson, Jr., took
over as the Jays' loan officer at Peoples Bank, and he
continued to renew and to modify the Jays' loan until the Jays
1061833, 1070120, and 1070140
4
left the catfish-farming business in 2003. By that time, the
Jays owed Peoples Bank $640,000. Anne Jay sold some
timberland to satisfy her personal guarantee of the loan.
Coleman, and later Lawson, had met with the Jays each
year while they were operating the Flying J Fish Farm to
discuss their loan. Based on his own experience in the
catfish-farming business, Lawson offered suggestions to the
Jays on ways they could improve the operation and financial
condition of their catfish farm.
Alabama Catfish is one of two main catfish-processing
businesses located in the area in which the Flying J Fish Farm
operated; the other is Southern Pride Fish, LLC. Alabama
Catfish and Southern Pride employ tasters who determine
whether catfish are "on flavor" or "off flavor" at the time of
harvest. The processors will refuse to accept catfish that
they determine are "off flavor" and that, therefore, cannot be
sold to customers. All catfish farmers have periodic issues
with "off flavor" fish.
Coleman and Lawson were both shareholders in Alabama
Catfish while they were acting as the Jays' loan officer, but
they did not disclose that fact to the Jays. Charles
1061833, 1070120, and 1070140
5
regularly offered to sell his fish to Alabama Catfish, and
Lawson encouraged him to do so. Charles did not have a
contract with either Alabama Catfish or with Southern Pride.
He initially focused his catfish-selling efforts on Alabama
Catfish, partly based on Lawson's advice and experience. The
Jays' catfish were often refused by Alabama Catfish as being
"off flavor."
In 1999, Alabama Catfish began building catfish ponds of
its own, with the goal of providing all the catfish for the
processing plant from its own ponds or the ponds of its
shareholders. This action, combined with a declining market,
prompted Charles to shift the focus of his sales efforts to
Southern Pride. He experienced difficulties similar to those
he had experienced in trying to sell his catfish to Alabama
Catfish. In January 1999, George Smelley, president of
Alabama Catfish, sent a letter to the catfish farmers with
whom it did business informing them that he, along with Paul
Bryant and Lawson, had purchased Alabama Catfish. The Jays
deny that they received the letter; however, they rely on the
information in that letter to support their allegation that
Alabama Catfish suppressed material information regarding its
1061833, 1070120, and 1070140
6
decision to increase the proportion of catfish raised by
Alabama Catfish supplying its processing plant.
The Jays sued the Peoples Bank defendants and Alabama
Catfish in the Hale Circuit Court, alleging, in their
complaint as finally amended, (1) that Peoples Bank, Lawson,
and Alabama Catfish had breached a fiduciary duty, (2) that
the Peoples Bank defendants and Alabama Catfish, in violation
of § 6-5-102, Ala. Code 1975, had suppressed material facts,
(3) that Lawson, Peoples Bank, its directors, and Alabama
Catfish, in violation of § 6-5-103, Ala. Code 1975, had
deceived the Jays regarding material facts, (4) that the
Peoples Bank defendants and Alabama Catfish were unjustly
enriched at the Jays' expense, (5) that the Peoples Bank
defendants and Alabama Catfish were negligent and/or wanton in
their dealings with the Jays, (6) that Peoples Bank and its
directors had negligently and/or wantonly supervised Lawson,
(7) that the Peoples Bank defendants and Alabama Catfish
conspired to commit the aforementioned tortious acts, and (8)
that, as a result of the actions of the Peoples Bank
defendants and Alabama Catfish, Renee had suffered a loss of
Charles's consortium. The Peoples Bank defendants and Alabama
1061833, 1070120, and 1070140
7
Catfish each moved for a summary judgment on all the Jays'
claims and Renee's loss-of-consortium claim. The trial court
entered a summary judgment for Alabama Catfish on all claims
and, in a separate order, for the Peoples Bank defendants on
all claims except for the claims alleging negligence and/or
wantonness and negligent and/or wanton supervision. This
Court consolidated the Jays' and Renee's appeals of the trial
court's summary judgments with the permissive cross-appeal
filed by the Peoples Bank defendants of the order denying
summary judgment on the Jays' negligence and/or wantonness and
negligent- and/or wanton-supervision claims for the purpose of
writing one opinion.
Issues
The issues presented are whether the trial court erred in
entering a summary judgment in favor of the Peoples Bank
defendants
on
the
Jays'
breach-of-fiduciary-duty,
suppression,
deceit, unjust-enrichment, and conspiracy claims and on
Renee's loss-of-consortium claim; whether the trial court
erred in entering a summary judgment in favor of Alabama
Catfish on all the Jays' claims and on Renee's loss-of-
consortium claim; and whether the trial court erred in denying
1061833, 1070120, and 1070140
8
the motion for a summary judgment filed by the Peoples Bank
defendants on the Jays' negligence and/or wantonness and
negligent- and/or wanton-supervision claims.
Standard of Review
"'"On appeal, this Court reviews a
summary judgment de novo." DiBiasi v. Joe
Wheeler Elec. Membership Corp., 988 So. 2d
454, 459 (Ala. 2008) (citing Ex parte
Essary, [Ms. 1060458, Nov. 2, 2007] ___ So.
2d ___, ___ (Ala. 2007)). In order to
uphold
a
summary
judgment,
we
must
determine that "there is no genuine issue
as to any material fact and that the moving
party is entitled to a judgment as a matter
of law." Rule 56(c)(3), Ala. R. Civ. P.
"When the movant makes a prima facie
showing that those two conditions have been
satisfied, the burden then shifts to the
nonmovant to present substantial evidence
creating a genuine issue of material fact."
Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949, 952 (Ala. 2004).
Substantial evidence is "evidence of such
weight and quality that fair-minded persons
in the exercise of impartial judgment can
reasonably infer the existence of the fact
sought to be proved." West v. Founders
Life Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989); see also § 12-21-
12(d), Ala. Code 1975. In reviewing a
summary judgment, we must view the evidence
in
the
light
most
favorable
to
the
nonmovant. Johnny Ray Sports, Inc. v.
Wachovia Bank, 982 So. 2d 1067, 1071 (Ala.
2007). "Finally, this Court does not
afford any presumption of correctness to
the trial court's ruling on questions of
law or its conclusion as to the appropriate
1061833, 1070120, and 1070140
9
legal standard to be applied." DiBiasi,
988 So. 2d at 459.'
"Catrett v. Baldwin County Elec. Membership Corp.,
[Ms. 1061538, May 23, 2008] ___ So. 2d ___, ___
(Ala. 2008)."
Moon v. Pillion, [Ms. 1070124, July 11, 2008] ___ So. 2d ___,
___ (Ala. 2008).
Analysis
I. Breach of Fiduciary Duty
The Jays allege that the trial court erred in entering a
summary judgment in favor of Peoples Bank, Lawson, and Alabama
Catfish on the Jays' breach-of-fiduciary-duty claim.
"Courts
have
traditionally
viewed
the
relationship between a bank and its customer as a
creditor-debtor relationship that does not impose a
fiduciary duty on the bank. See Power Equipment Co.
v. First Alabama Bank, 585 So. 2d 1291 (Ala. 1991);
Faith, Hope & Love, Inc. v. First Alabama Bank of
Talladega County, N.A., 496 So. 2d 708 (Ala. 1986).
However, a fiduciary duty may arise when the
customer reposes trust in the bank and relies on the
bank for financial advice, or in other special
circumstances. Bank of Red Bay v. King, 482 So. 2d
274 (Ala. 1985); Baylor v. Jordan, 445 So. 2d 254
(Ala. 1984)."
K&C Dev. Corp. v. AmSouth Bank, 597 So. 2d 671, 675 (Ala.
1992). Advice alone, however, is not enough to impose a
fiduciary duty. Even where the bank has taken an active role
1061833, 1070120, and 1070140
10
in attempting to improve a debtor company's financial
position, this Court has not found a fiduciary relationship.
See Nettles v. First Nat'l Bank of Birmingham, 388 So. 2d 916,
920 (Ala. 1980) (holding that no fiduciary relationship
existed where bank "caused various documents to be prepared,
made additional secured loans, and kept close tabs on the
Company's operation. Notwithstanding this active role, the
essential relationship between the parties remained that of
debtor-creditor, and the parties dealt with each other at
arm's length.").
Lawson, based on his extensive experience in the catfish-
farming business, offered the Jays advice on how to improve
the operation of their catfish farm, advice the Jays were free
to disregard. The Jays cite Lawson's "superior knowledge" in
the catfish industry as a basis for the formation of a
fiduciary duty. However, the fact that the Jays respected
Lawson's opinion and accepted his advice does not supply the
basis for the formation of a fiduciary relationship between
the Jays and Lawson or Peoples Bank. See Nettles, 388 So. 2d
at 921 ("[T]he fact that appellant ... repose[d] great
confidence in appellees' ability to save his business and that
1061833, 1070120, and 1070140
11
he acquiesced in their recommendations, ultimately to his
financial detriment, does not serve to establish some special
fiduciary relationship ....").
The
Jays
also
allege
that
Lawson
exerted
an
"overmastering influence" over the Jays, but they do not offer
facts that support this assertion. Anne Jay testified that
Lawson urged her and Charles to expand their catfish farm
"year after year," yet the record shows that the Jays added
their last pond in 1999, shortly after Lawson took over as
their loan officer. The Jays also allege that Lawson exerted
an "overmastering influence" by advising them to focus their
sales efforts on Alabama Catfish, and not on Southern Pride.
However, in late 2000, the Jays began to focus their sales
efforts on Southern Pride.
The Jays did not present substantial evidence indicating
that they had a fiduciary relationship with Peoples Bank or
Lawson; therefore, we affirm the summary judgment in favor of
Peoples Bank and Lawson on this claim.
The Jays also allege a breach of fiduciary duty on the
part of Alabama Catfish. The Jays allege that because Lawson
was a director of Alabama Catfish, his actions as a loan
1061833, 1070120, and 1070140
The Jays make separate claims alleging suppression and
1
deceit, but they present one argument in support of both
claims, so we analyze those claims together.
12
officer for Peoples Bank not only created a fiduciary duty on
the part of Peoples Bank, but also extended that duty to
Alabama Catfish. For the same reasons that we hold that
Lawson's actions did not create a fiduciary relationship with
Peoples Bank, we also conclude that there was no fiduciary
relationship between
the Jays
and
Alabama Catfish.
Therefore,
we affirm the summary judgment in favor of Alabama Catfish on
this claim.
II. Suppression and Deceit
The Jays allege that the trial court erred in entering a
summary judgment in favor of the Peoples Bank defendants and
Alabama Catfish on the Jays' suppression and deceit claims.1
"In order to establish a cause of action for
fraudulent suppression, the plaintiff must show 1)
that the defendant had a duty to disclose material
facts, 2) that the defendant concealed or failed to
disclose those facts, 3) that the concealment or
failure to disclose induced the plaintiff to act;
and 4) that the defendant's action resulted in harm
to the plaintiff. Interstate Truck Leasing, Inc. v.
Bender, 608 So. 2d 716 (Ala. 1992). A duty to
communicate
can
arise
from
a
confidential
relationship
between
the
plaintiff
and
the
defendant, from the particular circumstances of the
case, or from a request for information, but mere
1061833, 1070120, and 1070140
13
silence in the absence of a duty to disclose is not
fraudulent. Dodd v. Nelda Stephenson Chevrolet,
Inc., 626 So. 2d 1288 (Ala. 1993); Hardy v. Blue
Cross & Blue Shield of Alabama, 585 So. 2d 29 (Ala.
1991); King v. National Foundation Life Ins. Co.,
541 So. 2d 502 (Ala. 1989); [s]ee, McGowan v.
Chrysler Corp., 631 So. 2d 842 (Ala. 1993); Ala.
Code 1975, § 6-5-102."
Jewell v. Seaboard Indus., Inc., 667 So. 2d 653, 658 (Ala.
1995).
The Jays argue that "[t]he question as to whether a duty
to disclose exists is for the jury," citing Liberty National
Life Insurance Co. v. McAllister, 675 So. 2d 1292, 1296 (Ala.
1995). However, as we explained in State Farm Fire & Casualty
Co. v. Owen, 729 So. 2d 834, 840 (Ala. 1998):
"The judge should decide whether, assuming as truth
all of the plaintiff's factual assertions, they are
sufficient to give rise to a legal duty. If, even
presuming that all of the plaintiff's facts are
true, the judge determines that, as a matter of law,
no duty was owed, then a summary judgment ... is
appropriate."
The Jays allege that the Peoples Bank defendants and
Alabama Catfish had superior knowledge, i.e., they knew
Coleman and Lawson were both loan officers at Peoples Bank and
principals in Alabama Catfish, and they note that this Court
has stated: "[W]hen one party has superior knowledge of a fact
that is unknown to the other party, and the lack of knowledge
1061833, 1070120, and 1070140
14
will induce the other party to act in a manner in which he
otherwise might not act, the obligation to disclose is
'particularly compelling.'" McAllister, 675 So. 2d at 1296
(citing Baker v. Bennett, 603 So. 2d 928, 935 (Ala. 1992)).
However, "'[s]uperior knowledge of a fact, without more, does
not impose upon a party a legal duty to disclose such
information.'" State Farm Fire & Cas. Co., 729 So. 2d at 843
(quoting Surrett v. TIG Premier Ins. Co., 869 F. Supp. 919,
925 (M.D. Ala. 1994)).
The Jays allege that the "existence of confidential and
fiduciary relations and special circumstances" gave rise to a
duty to disclose. They also allege that "under the law of
Alabama" Coleman and Lawson, because of their superior
knowledge of material facts under "all the circumstances,"
were required to disclose to the Jays certain facts regarding
Coleman and Lawson's relationship with Alabama Catfish.
However, the Jays do not support their allegations with
citations to caselaw or to other authority. "'Where an
appellant fails to cite an authority, we may affirm, for it is
neither our duty nor function to perform all the legal
research for an appellant.'" Henderson v. Alabama A & M Univ.,
1061833, 1070120, and 1070140
Although the Jays allege both suppression and deceit,
2
they do not present any argument addressing deceit, apart from
the disclosure
argument
in
support of
their
suppression
claim.
Therefore, we do not address that claim.
15
483 So. 2d 392, 392 (Ala. 1986) (quoting Gibson v. Nix, 460
So. 2d 1346, 1347 (Ala. Civ. App. 1984)). Moreover, we have
already held that Peoples Bank, Lawson, and Alabama Catfish
were not involved in a fiduciary relationship with the Jays.
Therefore, the Jays did not present substantial evidence
indicating that
the
Peoples Bank defendants
or
Alabama Catfish
was under any duty to disclose material facts, and we affirm
the summary judgment on these claims.
2
III. Unjust Enrichment
The Jays allege that the trial court erred in entering a
summary judgment in favor of the Peoples Bank defendants and
Alabama Catfish on the Jays' unjust-enrichment claim. To
succeed on a claim of unjust enrichment, the plaintiff must
show that
"'the "'defendant holds money which, in equity and
good conscience, belongs to the plaintiff or holds
money which was improperly paid to defendant because
of mistake or fraud.'" Dickinson v. Cosmos Broad.
Co., 782 So. 2d 260, 266 (Ala. 2000) (quoting
Hancock-Hazlett Gen. Constr. Co. v. Trane Co., 499
So. 2d 1385, 1387 (Ala. 1986)).... "The doctrine of
unjust enrichment is an old equitable remedy
1061833, 1070120, and 1070140
16
permitting the court in equity and good conscience
to disallow one to be unjustly enriched at the
expense of another." Battles v. Atchison, 545 So.
2d 814, 815 (Ala. Civ. App. 1989).'"
Mantiply v. Mantiply, 951 So. 2d 638, 654 (Ala. 2006) (quoting
Avis Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1123
(Ala. 2003)).
The
Jays
base
their
unjust-enrichment
claim
on
unspecified
"legal arguments
and
references to the
record that
are contained in the other sections of this brief." Jays'
brief, p. 73. Because we hold that the trial court properly
entered a summary judgment in favor of the Peoples Bank
defendants and Alabama Catfish on the Jays' breach-of-
fiduciary-duty, suppression, and deceit claims, the Jays
cannot show that they paid any moneys to Peoples Bank or to
Alabama Catfish because of mistake or fraud, and their claim
of unjust enrichment is without merit. Therefore, we affirm
the summary judgment for the Peoples Bank defendants and
Alabama Catfish on this claim.
IV. Negligence and/or Wantonness
The Peoples Bank defendants allege that the trial court
erred in not entering a summary judgment in their favor on the
Jays' negligence and/or wantonness claim. In its order
1061833, 1070120, and 1070140
17
certifying its ruling on this issue as appropriate for
permissive appeal under Rule 5, Ala. R. App. P., the trial
court stated the controlling question of law as follows:
"Whether [the Peoples Bank defendants] can be liable
to the Bank's customers for negligence or wantonness
on the theory that the Bank loaned those customers
money for use in their business when both the Bank
and those customers appreciated that there was a
substantial risk that revenues from the business
would not be sufficient to repay the loans."
This appears to be a question of first impression for
this Court. We agree with the courts in other jurisdictions
that have answered this question in the negative as to
negligence. See FDIC v. Fordham (In re Fordham), 130 B.R.
632, 646 (Bankr. D. Mass. 1991) ("A lender, moreover, owes to
its borrower or guarantor no duty to use reasonable care to
determine that a project is sufficiently feasible to permit
repayment of the loan."); see also Commercial Nat'l Bank in
Shreveport v. Audubon Meadow P'ship, 566 So. 2d 1136, 1140
(La. Ct. App. 1990) ("To impose such requirements would
significantly alter the relationship between banks and those
with whom they deal. In effect, it would impose liability upon
banks for business failures arising through ventures they
financed."); Wagner v. Benson, 101 Cal. App. 3d 27, 35, 161
1061833, 1070120, and 1070140
18
Cal. Rptr. 516, 521 (1980) ("[T]he Wagners allege they
suffered substantial foreseeable harm from the Bank's
negligence in loaning money to them, as inexperienced
investors, for a risky venture over which the Bank exercised
influence and control. However, the Bank owes no duty of care
to the Wagners in approving their loan."). The Jays made the
decision
to
start
a catfish-farming
business;
they
applied for
and received a loan with the anticipation that they stood to
profit if the business succeeded and that they could be
exposed to economic loss should the business fail. The
Peoples Bank defendants should not now be made insurers of
their business decisions. See Gries v. First Wisconsin Nat'l
Bank of Milwaukee, 82 Wisc. 2d 774, 780, 264 N.W.2d 254, 257
(1978) ("[The plaintiffs] called the bank; they prepared a
proposal; they applied for the loan; they invested the money
in the business. Although the failure of the business is
unfortunate for both the plaintiffs and the bank, it was a
risk which the plaintiffs assumed, and which can not be
shifted to the bank.").
The Jays cite two cases in which this Court has held a
bank liable under a negligence theory; however, both cases are
1061833, 1070120, and 1070140
19
distinguishable. In Schoen v. Gulledge, 481 So. 2d 1094 (Ala.
1985), this Court concluded that the loan officer had a duty
to recommend only sound loans. The loan officer in Schoen
held a one-half interest in the property Schoen wanted to
purchase and allegedly purposely misstated Schoen's cash flow
so that he would qualify for the loan. Schoen was unable to
pay the first installment of his loan. Schoen, 481 So. 2d at
1096. Thus, there was not just a risk that Schoen could not
repay the loan; it was virtually certain that he could not.
In this case, the evidence, if any, indicating that Coleman or
Lawson purposely misstated the Jays' potential for success or
that it was a near certainty that they could not repay their
loan is not substantial. In fact, the Jays ran their
business, with varying degrees of success, for nearly 10
years.
In Patrick v. Union State Bank, 681 So. 2d 1364 (Ala.
1996), the other case the Jays cite, this Court held that a
bank owed a customer a duty of due care in applying its
procedures in opening checking accounts. In Patrick, an
imposter opened a checking account in Patrick's name after the
bank failed to follow its identification procedures and
1061833, 1070120, and 1070140
20
safeguards in opening the account. The imposter wrote several
bad checks, causing arrest warrants to be issued for Patrick
in 11 jurisdictions. In imposing a duty on the bank, this
Court stated that the bank was in the best position to prevent
the fraud that injured Patrick, that the nature of the harm --
arrest for writing bad checks -- was foreseeable, and that it
was commercially reasonable for the bank to take steps to
prevent the fraud. Patrick, 681 So. 2d at 1369-71. In this
case, however, the Jays ran the day-to-day operations of their
business; thus, they were in the best position to ensure its
success. The failure of the business was at least equally
foreseeable to the Jays as it was to Peoples Bank, Lawson, or
Coleman. Moreover, unlike the identification procedures and
other safeguards in place to prevent the fraud that would harm
the bank customer at issue in Patrick, this Court has held
that a bank's loan-approval policies are intended solely for
the bank's benefit.
"We conclude that the record supplies no basis
for a holding that AmSouth owed ABS a common-law
duty that could support its claims of negligence or
wantonness based on its loan-application policies.
Unlike the policies employed by the defendants in
Lance[, Inc. v. Ramanauskas, 731 So. 2d 1204 (Ala.
1999)], Collins [v. Wilkerson, 679 So. 2d 1100 (Ala.
Civ. App. 1996)], and [Wal-Mart Stores, Inc. v.]
1061833, 1070120, and 1070140
21
Tuck, [671 So. 2d 101 (Ala. Civ. App. 1995)], all of
which were policies intended to provide for public
safety, the AmSouth policy that ABS references was
solely for AmSouth's benefit. See Spriggs v. Compass
Bank, 742 So. 2d 178 (Ala. Civ. App. 1997) (holding
that
a
bank's
internal
policy
of
notifying
mortgagors of the cancellation of their property
insurance was for the bank's benefit and did not
imply a duty to the mortgagors)."
Armstrong Bus. Servs., Inc. v. AmSouth Bank, 817 So. 2d 665,
681 (Ala. 2001). Therefore, we hold that the Peoples Bank
defendants do not owe the Jays a duty that would give rise to
the Jays' negligence claim. To answer the trial court's
question, the Peoples Bank defendants cannot "be liable to
[the Jays] for negligence ... on the theory that the Bank
loaned [the Jays] money for use in their business when both
the Bank and [the Jays] appreciated that there was a
substantial risk that revenues from the business would not be
sufficient to repay the loans."
The Peoples Bank defendants also cite the above-quoted
language in Armstrong to support their allegation that the
trial court should have entered a summary judgment for them on
Jays' wantonness claim. In response, the Jays merely quote
the statutory definition of wantonness found at § 6-11-
1061833, 1070120, and 1070140
Wantonness is defined as "[c]onduct which is carried on
3
with a reckless or conscious disregard of the rights or safety
of others." § 6-11-20(b)(3).
22
20(b)(3), Ala. Code 1975, and say that "[g]iven the clear
3
conflict of interest, a jury could find that the defendants'
actions constitute wantonness." Jays' reply brief, p. 36.
Their argument thus consists of nothing more than an
undelineated general legal proposition and does not meet the
requirements of Rule 28, Ala. R. App. P. Such an argument is
insufficient to invoke this Court's review. See Jimmy Day
Plumbing & Heating, Inc. v. Smith, 964 So. 2d 1 (Ala. 2007)
(holding that an appellant's argument citing a single case for
a general proposition of law failed to comply with Rule 28,
Ala. R. App. P.). Because the Jays have not presented
substantial evidence either of a negligence claim or of a
wantonness claim against the Peoples Bank defendants, we
reverse the trial court's order denying a summary judgment on
this claim and direct the trial court to enter a summary
judgment for the Peoples Bank defendants on this claim.
The Jays allege that the trial court erred in entering a
summary judgment in favor of Alabama Catfish on the Jays'
negligence and/or wantonness claim. The Jays allege that "by
1061833, 1070120, and 1070140
23
virtue of their business relationship, the affirmative
representations of George Smelley, and the involvement of the
banking officers in the
[Jays'] business,
Alabama
Catfish owed
a duty of care to the [Jays] to act reasonably and to exercise
reasonable care to avoid injury or damage to the [Jays]."
Jays' brief, p. 76. The Jays then allege that Alabama Catfish
breached this duty of care. The Jays do not cite any
authority or make any additional argument in their principal
brief with respect to this allegation. It is not the duty of
this Court to make arguments or perform the legal research to
supplement an inadequate brief. Dykes v. Lane Trucking, Inc.,
652 So. 2d 248, 251 (Ala. 1994) ("We have unequivocally stated
that it is not the function of this Court to do a party's
legal research or to make and address legal arguments for a
party
based
on
undelineated
general
propositions
not
supported
by sufficient authority or argument."); Harper v. Coats, [Ms.
1050145, January 18, 2008] ___ So. 2d ___, ___ (Ala. 2008).
Therefore, the Jays' argument is not properly before this
Court, and we affirm the summary judgment for Alabama Catfish
on this claim.
V. Negligent and/or Wanton Supervision
1061833, 1070120, and 1070140
24
The Jays allege that the trial court erred in entering a
summary judgment in favor of Alabama Catfish on the Jays'
negligent- and/or wanton-supervision claim. In their cross-
appeal, Peoples Bank and its directors allege that the trial
court erred in denying their motion for a summary judgment on
the
Jays'
negligent-
and/or
wanton-supervision
claim.
Peoples
Bank and its directors allege that the claim is dependent on
proving that one of Peoples Bank's employees committed an
underlying wrong. "[A] party alleging negligent supervision
and hiring must prove the underlying wrongful conduct of the
defendant's
agents."
University
Fed. Credit
Union
v.
Grayson,
878 So. 2d 280, 291 (Ala. 2003) (citing Voyager Ins. Cos. v.
Whitson, 867 So. 2d 1065, 1073 (Ala. 2003), citing in turn
Stevenson v. Precision Standard, Inc., 762 So. 2d 820 (Ala.
1999)). Because we hold that the Jays' claims alleging
wrongful conduct on the part of any employees or officers of
Peoples Bank or Alabama Catfish were properly dismissed on
summary judgment, their negligent- and/or wanton-supervision
claim is without merit. Therefore, we affirm the summary
judgment in favor of Alabama Catfish on this claim, and we
reverse the trial court's order denying a summary judgment for
1061833, 1070120, and 1070140
25
Peoples Bank and its directors on this claim and direct the
trial court to enter a summary judgment in favor of Peoples
Bank and its directors on this claim.
VI. Conspiracy
"[L]iability for civil conspiracy rests upon the
existence of an underlying wrong and if the underlying wrong
provides no cause of action, then neither does the conspiracy.
Allied Supply Co. v. Brown, 585 So. 2d 33 (Ala. 1991); Webb v.
Renfrow, 453 So. 2d 724 (Ala. 1984)" Jones v. BP Oil Co., 632
So. 2d 435, 439 (Ala. 1993). Because the underlying claims
against the Peoples Bank defendants and Alabama Catfish are
properly disposed of on summary judgment, so is the conspiracy
claim. Therefore, we affirm the summary judgment in favor of
the Peoples Bank defendants and Alabama Catfish on this claim.
VII. Loss of Consortium
A loss-of-consortium claim is derivative of the claims of
the injured spouse. Therefore, Renee's loss-of-consortium
claim must fail if Charles Jay's claims fail. See Ex parte
Progress Rail Servs. Corp., 869 So. 2d 459, 462 (Ala.
2003)("Even if the claims alleging loss of consortium and loss
of services could otherwise be legally cognizable, they are
1061833, 1070120, and 1070140
The Peoples Bank defendants and Alabama Catfish argue
4
that the Jays' breach-of-fiduciary-duty, suppression, deceit,
conspiracy, unjust-enrichment, and loss-of-consortium claims
26
derivative of, and dependent upon the outcome of, the direct
claim ...."). Because all the underlying claims against the
Peoples Bank defendants and Alabama Catfish are properly
disposed of on summary judgment, summary judgment is also
proper on Renee's loss-of-consortium claim. Therefore, we
affirm the summary judgment in favor of the Peoples Bank
defendants and Alabama Catfish on this claim.
Conclusion
For the foregoing reasons, we affirm the summary judgment
in favor of the Peoples Bank defendants on the Jays' breach-
of-fiduciary-duty,
suppression,
deceit,
unjust-enrichment,
and
conspiracy claims and on Renee's loss-of-consortium claim. We
affirm the summary judgment in favor of Alabama Catfish on all
the Jays' claims and on Renee's claim against it. We reverse
the trial court's order denying the motion for a summary
judgment in favor of the Peoples Bank defendants on the Jays'
negligence and/or wantonness and negligent- and/or wanton-
supervision claims and direct the trial court to enter a
summary judgment for them on those claims.
4
1061833, 1070120, and 1070140
are barred by the statute of limitations. They point to
testimony in Charles Jay's deposition regarding alleged
"coffee shop talk" as proof of his knowledge of Coleman's and
Lawson's alleged conflict of interest given their roles as
loan officers at Peoples Bank and as directors of Alabama
Catfish, and they argue that "a party will be deemed to have
'discovered' a fraud as a matter of law upon the first of
either the actual discovery of the fraud or when the party
becomes privy to facts that would provoke inquiry in a
reasonable person that, if followed up, would lead to the
discovery of the fraud." Dickinson v. Land Developers Constr.
Co., 882 So. 2d 291, 298 (Ala. 2003). Therefore, they argue,
the statutory limitations period has run against the Jays.
Because we decide the case on other grounds, we need not
address this issue.
27
1061833 -- AFFIRMED.
1070120 -- REVERSED AND REMANDED.
1070140 -- AFFIRMED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | October 24, 2008 |
feeaedf9-92fd-4f0a-8cb7-01467e14aa0b | Ex parte Harry Franklin Brunner. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Harry Franklin Brunner v. Beverly T. Brunner Ormsby) | N/A | 1070931 | Alabama | Alabama Supreme Court | rel: 11/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070931
____________________
Ex parte Harry Franklin Brunner
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Harry Franklin Brunner
v.
Beverly T. Brunner Ormsby)
(Cullman Circuit Court, DR-03-351.01;
Court of Civil Appeals, 2061030)
PER CURIAM.
WRIT DENIED. NO OPINION.
Lyons, Woodall, Stuart, Smith, and Parker, JJ., concur.
See, Bolin, and Murdock, JJ., dissent.
1070931
The former husband was, at the time of the entry of the
1
divorce judgment, and is currently, a circuit judge.
Section 30-2-55, Ala. Code 1975, provides that "periodic
2
payments of alimony shall be modified by the court to provide
for the termination of such alimony upon petition of a party
to the decree and proof that the spouse receiving such alimony
2
MURDOCK, Justice (dissenting).
On July 15, 2003, Harry Franklin Brunner ("the former
husband") and Beverly T. Brunner Ormsby ("the former wife")
were divorced by a judgment of the Cullman Circuit Court. The
judgment, based on an agreement between the parties, provided,
in part as follows:
"1. That the Husband shall pay to the Wife the
sum of Two Thousand & No/100 Dollars ($2,000.00) per
month as alimony in gross. ... The Husband's
obligation hereunder shall terminate upon the first
to occur of the following events: the Husband is no
longer a full-time active sitting Judge,
death of
[1]
the Husband, or death of the Wife. It is the
intention of the parties that this transfer not be
taxed to the Wife or deductible by the Husband."
The issue in this case is whether the above-described payments
constitute
a
distribution
of
marital
property
and,
specifically, constitute alimony in gross, or whether instead
they must be considered periodic alimony. The resolution of
this issue in turn controls the disposition of the former
husband's petition to terminate those payments in light of the
former wife's remarriage.
2
1070931
has remarried ...."
3
In finding the payments to be alimony in gross, the trial
court first stated that the parties "clearly designated the
award as alimony in gross." Labels applied by the parties or
by the trial court, however, are not dispositive; it is the
true nature of the obligation that matters. "The substance of
the award takes precedence over the form or label." Kenchel
v. Kenchel, 440 So. 2d 567, 569 (Ala. Civ. App. 1983). "[T]he
labels provided in a judgment are not controlling on the
question of the true nature of the obligation." Anderson v.
Anderson, 686 So. 2d 320, 324 (Ala. Civ. App. 1996). It is
"the effect of the [judgment]" that determines what it is that
has been prescribed by that judgment:
"'The allowance in the case at bar will be
considered and construed in accordance with its
substance and not its mere form. If, when so
considered, the effect of the decree rendered was
not that of a division of property, but of an
allowance of alimony payable by installments for the
support of the wife and children, it may be
modified.'"
DuBoise v. DuBoise, 275 Ala. 220, 228, 153 So. 2d 778, 785
(1963)(quoting Sullivan v. Sullivan, 215 Ala. 627, 629, 111
So. 911, 912 (1927) (emphasis added)).
1070931
4
The trial court also relied upon its finding that it was
"the intent of the parties ... to establish alimony in gross."
As to this finding, I first would note that it is the legal
effect of the judgment of divorce that is at issue. The
parties' agreement was merged into that judgment and thereupon
lost its contractual nature. Ex parte Owens, 668 So. 2d 545
(Ala. 1995); see generally Bass v. Bass, 434 So. 2d 280, 281
(Ala. Civ. App. 1983) ("[t]he [trial] court is not bound by an
agreement of the parties in contemplation of a divorce," but
may accept or reject the agreement in whole or in part).
Second, it may be true that the trial court intended to
effect a property division; that, however, does not mean that
it succeeded in doing so. It may be that, because of error or
misunderstanding as to the fundamental characteristics of
alimony in gross, or for whatever reason, the divorce judgment
simply creates a payment obligation that by its nature is not
a division of the parties' property. If so, that obligation
cannot be made into something it is not. As noted, an
allowance must be "considered and construed in accordance with
its substance"; what matters is whether "the effect of the
decree rendered" was of an award of periodic alimony for
maintenance and support or an allocation of the property of
1070931
It is now well settled that, following an award of
3
alimony in gross, the trial court loses jurisdiction to modify
the award. See Trammell v. Trammell, 523 So. 2d 437, 439
(Ala. Civ. App. 1988); Banks v. Banks, 336 So. 2d 1365, 1367
(Ala. Civ. App. 1976).
5
the marital estate. What must be assessed is the fundamental
character of that which is created in the divorce judgment.
In LeMaistre v. Baker, 268 Ala. 295, 105 So. 2d 867
(1958), a case cited in the petition before us, we find the
following exposition, which begins with a quotation from
Justice Somerville's opinion in Smith v. Rogers, 215 Ala. 581,
583, 112 So. 190, 192 (1927):
"'But, on principle, there is no
escape from the conclusion that a decree
for
alimony
in
gross,
if
without
reservation,[ ] becomes a vested right from
3
the date of its rendition and survives the
death of the husband. Differing from a mere
periodic
allowance
for
current
and
continuous support, it is intended to
effect a final termination of the property
rights and relations of the parties, and is
an approximate appraisal of the present
value of the wife's future support, and, in
a measure, a compensation for her loss of
inchoate property rights in her husband's
homestead and other estate, given to her by
statute in case of her survival. The
decree therefore has the effect of a final
judgment for the payment of money, and is
as binding upon the estate of the husband
as upon himself while living.'
"....
1070931
6
"... [I]n Borton v. Borton, 230 Ala. 630, 162
So. 529, 530, 101 A.L.R. 320 [(1935)],... Justice
Bouldin, speaking for the Court, made the following
pertinent concise comment:
"'In Epps v. Epps, 218 Ala. 667, 120
So. 150 [(1929)], the full court considered
the nature and basis of a monthly allowance
for future support of the wife. Being an
allowance in lieu of the legal obligation
of the husband to support the wife,
payable, if need be, from the current
earnings of the husband from time to time,
it was decided that the court had inherent
power to modify such decree in the future
because
of
changed
conditions,
notwithstanding no reservation of future
control was written in the decree.
"'This has become the settled law of
Alabama. The rule applies notwithstanding
the decree was pursuant to an agreement of
the parties. Worthington v. Worthington,
224 Ala. 237, 139 So. 334 [(1932)]; Ex
parte Allen, 221 Ala. 393, 128 So. 801
[(1930)].
"'....'
"....
"As stated, the trial court in the instant case
ruled that the decree of divorce which he had
rendered almost three years previously, in which
there was the foregoing quoted provision, was in
fact an award of alimony in gross and that, as such,
the obligation of H. Powell Baker to pay to Emma
Baker the amount as provided therein survived his
death and became a charge against the estate.
Although this conclusion was stated as a finding of
fact, it is manifest that it was in reality an
exercise of judgment on a question of law and is
therefore subject to review."
1070931
7
LeMaistre, 268 Ala. at 296-98, 105 So. 2d at 868-69 (emphasis
added).
In Zinnerman v. Zinnerman, 803 So. 2d 569, 574 (Ala. Civ.
App. 2001), the Court of Civil Appeals stated:
"'"'Alimony in gross' is the present value of the
wife's inchoate marital rights -- dower, homestead,
quarantine, and distributive share. It is payable
out of the husband's present estate as it exists at
the time of divorce."' Murphy v. Murphy, 624 So. 2d
620, 622 (Ala. Civ. App. 1993), quoting Hager v.
Hager 293 Ala. 47, 299 So. 2d 743 (1974) (emphasis
added [in Zinnerman])."
See also Johnson v. Johnson, 840 So. 2d 909, 912 (Ala. Civ.
App. 2002) (confirming that alimony in gross is a form of
property division and therefore by its nature must be payable
out of the estate "as it exists at the time of the divorce");
Epps v. Epps, 218 Ala. 667, 668, 120 So. 150, 151 (1929)
(allowance of $100 per month was considered to be periodic
alimony because it would be "equivalent to her share in quite
a considerable estate" and, yet, "[t]he husband had no such
estate"). In addition to compensation for the wife's inchoate
marital rights,
"an award in gross may also represent a division of
the fruits of the marriage where liquidation of a
couple's jointly owned assets is not practicable.
For this very reason 'alimony in gross,' which has
come to represent a settlement of property rights,
is often coupled with an award of periodic alimony."
1070931
8
Hager v. Hager, 293 Ala. 47, 54, 299 So. 2d 743, 749 (1974)
(emphasis added).
The payments here hardly can be considered a division of
the existing property of the former husband's estate or of the
marital estate. The continuation of their payment by the
former husband is tied to the former husband's continuation of
his employment and thus to income he has yet to earn.
In contrast, the law provides that the continuation of
periodic alimony for the support and maintenance of the payee
may be tied to the payor's future income. See, e.g., Sharp v.
Sharp, 230 Ala. 539, 161 So. 709 (1935). Here, by tying the
former husband's obligation to continue paying the alimony to
his continued employment and earning a current income, the
judgment did not, despite whatever intention the parties or
the trial court might have had, succeed in dividing currently
owned assets of the marital estate; instead, it succeeded in
fashioning something that bears an essential earmark of
periodic alimony.
In addition to not having the fundamental character of
division of property, the payments at issue simply fail to
meet the specific legal requirements that must be met to
1070931
9
qualify as that subspecies of property division known as
"alimony in gross." Time and again our decisions have
affirmed that to be considered alimony in gross, an award
"must meet and satisfy two requirements, i.e., (1) the time of
payment and the amount must be certain; [and] (2) the right to
alimony must be vested." Trammell v. Trammell, 523 So. 2d
437, 439 (Ala. Civ. App. 1988) (quoting Montgomery v.
Montgomery, 275 Ala. 364, 366, 155 So. 2d 317, 319 (1963)).
In TenEyck v. TenEyck, 885 So. 2d 146, 151-52 (Ala. Civ. App.
2003), the Court of Civil Appeals summarized well the
essential nature and the specific requirements of an award of
alimony in gross, while contrasting the purpose and nature of
periodic alimony:
"Alimony in gross is considered 'compensation for
the [recipient spouse's] inchoate marital rights
[and] ... may also represent a division of the
fruits of the marriage where liquidation of a
couple's jointly owned assets is not practicable.'
Ex parte Hager, 293 Ala. [47,] 54, 299 So. 2d [743,]
749 [(1974)]. An alimony-in-gross award 'must
satisfy two requirements, (1) the time of payment
and the amount must be certain, and (2) the right to
alimony must be vested.' Cheek v. Cheek, 500 So. 2d
17, 18 (Ala. Civ. App. 1986). It must also be
payable out of the present estate of the paying
spouse as it exists at the time of the divorce. Ex
parte Hager, 293 Ala. at 55, 299 So. 2d at 750. In
other words, alimony in gross is a form of property
settlement. Ex parte Hager, 293 Ala. at 54, 299 So.
1070931
10
2d at 749. An alimony-in-gross award is generally
not modifiable. Id.
"Periodic alimony, on the other hand, 'is an
allowance for the future support of the [recipient
spouse] payable from the current earnings of the
[paying spouse].' Ex parte Hager, 293 Ala. at 55,
299 So. 2d at 750. Its purpose 'is to support the
former dependent spouse and enable that spouse, to
the extent possible, to maintain the status that the
parties had enjoyed during the marriage, until that
spouse is self-supporting or maintaining a lifestyle
or status similar to the one enjoyed during the
marriage.' O'Neal v. O'Neal, 678 So. 2d 161, 164
(Ala. Civ. App. 1996) (emphasis added [in TenEyck]).
Periodic alimony is modifiable based upon changes in
the parties' financial conditions or needs, such as
an increase in the need of the recipient spouse, a
decrease in the income of the paying spouse, or an
increase in the income of the recipient spouse. See
Tibbetts v. Tibbetts, 762 So. 2d 856, 858 (Ala. Civ.
App. 1999)."
(All but last two emphases added.)
Here, the time of payment is not certain. The amount is
not certain. The former wife's entitlement to the payment is
not vested inasmuch, as already noted, her entitlement is
contingent upon how long the former husband might live and on
how long the former husband continues to work as a judge.
Moreover, it is clear that the award is tied to the future
earnings of the former husband and, in any event, is not an
award from the former husband's estate or the marital estate
as it existed at the time of the divorce. In short, the award
1070931
"In no sense can it be said that the
4
alimony provision considered here was
either certain in amount or time of
payment. True, the amount was set at $300
per month, but the full amount to be
eventually paid depended upon the duration
of the payments, which was limited in time
only by the death or remarriage of the
appellee. Such a limitation cannot be
termed certain with respect to a particular
time."
LeMaistre, 268 Ala. at 298, 105 So. 2d at 870.
11
simply does not have the fundamental character of a property
division or satisfy the specific legal requirements for
alimony in gross.
4
Although the former wife here may have given up a claim
to certain of the former husband's retirement benefits in
exchange for the payments at issue, nothing prevents a spouse
from negotiating a release of the right to a share of property
to which he or she might otherwise be entitled in return for
a larger periodic-alimony payment. See generally Dodd v.
Dodd, 669 So. 2d 915, 916 (Ala. Civ. App. 1995) (noting that
we consider periodic alimony and property division together in
deciding the equity of an award). Also, it is true that the
parties stated in their agreement that the payments would not
be taxable to the former wife nor deductible by the former
husband. Again, this may have been part of the negotiated
1070931
Further, neither an agreement as to how payments are to
5
be taxed nor the designation given those payments by the court
in the original divorce case, or for that matter by the court
in the present case, is binding upon the taxing authority.
See, e.g., White v. United States, 550 F. Supp. 96 (M.D. Ala.
1982).
12
give and take of the parties. It does not, however, change
the objective fact that the payments do not satisfy the well
established, objective criteria for alimony in gross. It is
those criteria, as well as the above-discussed criteria for
periodic alimony, that determine under the law whether a
payment constitutes alimony in gross or periodic alimony. And
it is whether the payment constitutes alimony in gross or
periodic alimony that determines how the payment will be
taxed, not vice versa.5
The Court of Civil Appeals relied upon Hager v. Hager,
supra, pointing out that the fact that the payments in that
case were to end upon the death of the payee did not prevent
those payments from being deemed alimony in gross. Hager is
distinguishable.
Even alimony in gross has its roots in the desire of the
law that a divorcée be able to support herself and not be left
destitute. See Hager, 293 Ala. at 49-53, 299 So. 2d at
745-48, (discussing the common-law roots of alimony, both "in
1070931
13
gross" and "periodic"). Thus, although the cessation of
alimony payments upon a payee's death would appear to be in
tension with the modern day understanding that alimony in
gross is a vested share of the property of the marital
property, the provision in Hager for the termination of
alimony payments upon the death of the payee can at least be
considered as consistent with those roots. Termination of
payments upon the payor's death, on the other hand, is not
consistent with those roots. Of course, the termination of
the right to payments upon the payee's death also conflicts
with the legal requirement for alimony in gross that the right
to the payments be "vested." See Trammell, 523 So. 2d at 439
(noting that, in addition to other factors, "[t]he language
[of the judgment providing for termination of a monthly
payment obligation upon the death of the payor husband]
clearly indicates no intention for the estate of the husband
to be bound in the event of his death. Thus, the right is not
vested."). Indeed, the decision in Hager itself was based
upon a distinction between a termination of payments upon the
death of the payee wife and termination upon the death of the
payor husband: "We ... must reject the Court of Civil
Appeals' reasoning that because an award of alimony in gross
1070931
14
survives against the husband it must also survive in favor of
the wife if it is to be unmodifiable." 293 Ala. at 55, 299
So. 2d at 750.
The Court of Civil Appeals also seeks support for its
holding in the case of Stockbridge v. Reeves, 640 So. 2d 947
(Ala. Civ. App. 1994). In Stockbridge, the divorce judgment
provided that the husband "'shall assign to the wife [his]
military retirement pension income to the maximum extent
allowed by law, and shall cause the remainder to be paid
directly to the wife.'" 640 So. 2d at 947. The payments were
to terminate "'upon the husband's death, the wife's death, or
upon the termination of the military retirement pension income
benefit for whatever reason beyond the husband's control.'"
Id. The Court of Civil Appeals held that the payments
constituted an award of property, rather than periodic
alimony.
The payments at issue here clearly contrast with those in
Stockbridge in that the payments here are to be made only to
the extent the former husband earns new, future income from a
specified job. The award in Stockbridge was of a pension that
already had been earned, that already was vested in the former
husband as a property right, and that by its very nature
1070931
15
constituted existing property of the estate. E.g., Wilkinson
v. Wilkinson, 905 So. 2d 1, 9-10 n. 2 and accompanying text
(Ala. Civ. App. 2004) (Yates, P.J., surveying cases and
concurring in the result). A judgment providing that the
former wife would receive that pension as it is paid out over
a period of years is nothing more than an award of the vested
property right represented by that pension. It is a
fundamentally different thing than awarding payments to a wife
tied to certain future earnings of the payor. Indeed, the
payments in Stockbridge were not even referred to by the court
as alimony in gross, which they clearly were not, but rather
as simply a "property settlement." 640 So. 2d at 948.
In Kelley v. State Department of Revenue, 796 So. 2d 1114
(Ala. Civ. App. 2000), the Court of Civil Appeals addressed a
payment obligation on the part of a former husband that was
linked, not to the receipt of vested retirement benefits as in
Stockbridge, but, like the present case, to the payor's
continued employment with the State of Alabama and thus to his
future earnings from that job. Specifically, the judgment
provided:
"'as part of the property settlement, the Wife shall
be entitled to 40% of the net salary of the Husband
as Director of Game, Fish and Natural Resources
1070931
16
Division (or any other position [with the State of
Alabama or the federal government]), ... until the
retirement of the husband.'"
796 So. 2d at 1116-17 (emphasis added). Utilizing reasoning
that could just as easily be applied to the present case, the
court stated:
"This court has held that in order for an award
in a divorce judgment to be considered a property
settlement, the following two requirements must be
met: (1) the amount and time of payment must be
certain; and (2) the right to it must be vested and
not subject to modification. Daniels v. Daniels,
599 So. 2d 1208, 1209 (Ala. Civ. App. 1992); Thomas
v. Thomas, 392 So. 2d 233 (Ala. Civ. App. 1980).
This court has further stated:
"'"[L]abels provided in a judgment are not
controlling on the question of the true
nature of the obligation. In order for an
award to constitute a property settlement,
the amount and time of payment must be
certain and the right to payment must be
vested and not subject to modification. 11
U.S.C.A. § 727(b); Segers v. Segers, 655
So.2d 1014 (Ala. Civ. App.1995)."'
"....
"'A decree providing for monthly payments
..., to run indefinitely, implies an
allowance for support and maintenance to be
met by the husband from his income or
earnings, if need be.'
"Laminack v. Laminack, 675 So. 2d 479, 482 (Ala.
Civ. App. 1996) (quoting Hager v. Hager, 293 Ala.
47, 53, 299 So. 2d 743, 749 (1974) (distinguishing
between periodic alimony and alimony in gross)).
1070931
The trial court apparently was not presented in this case
6
with the issue whether some form of estoppel should thwart the
former husband's petition to terminate the alimony award. Nor
was it presented the issue whether, even if the payments in
question were periodic-alimony payments for support and
maintenance of the former wife, they nonetheless were part of
a so-called "integrated bargain" and thus not modifiable
except with the consent of both parties. See DuValle v.
DuValle, 348 So. 2d 1067 (Ala. Civ. App. 1977).
17
"Based upon the caselaw cited above, we must
disagree with the wife's assertion that the award of
40% of the husband's income is in the nature of a
property settlement rather than in the nature of
alimony. The award is for no definite amount,
because the amount of the husband's income may
change and there is no specific number of years for
which the husband must make such payments. The
amount and the time of payment is not certain. Thus,
we conclude that under Alabama law, the award is an
award of periodic alimony."
796 So. 2d at 1117-18 (emphasis added) (also noting that "the
husband's obligation to pay the wife 40% of his salary from
his 'present employment' would end upon his death ...." 796
So. 2d at 1117.)
Hard facts can make bad law. In an effort to reach a
6
just result in a case with hard facts, I believe the opinion
of the court below fails to apply, and to some degree erodes,
the well established, fundamental principles under Alabama law
that define an award of property -- and the well established,
essential legal requirements for payments to qualify as
alimony in gross. The payments at issue are not payable out
1070931
18
of the existing property of the former husband's estate or the
marital estate; the time of their payment and their total
amount is uncertain; and the former wife's right to receive
them is not vested. They do not constitute an award of
property generally, nor an award of alimony in gross in
particular.
Unlike the majority of this Court today, I believe the
petition before us asserts viable grounds for review by this
Court. See Rule 39, Ala. R. App. P. I therefore am compelled
to dissent from the majority's decision to deny the writ.
See and Bolin, JJ., concur. | November 21, 2008 |
56d3b6a9-79a4-477c-bf56-6159346ba119 | Gracie Van Voorst, individually and as mother and next friend of Cheyenne Van Voorst, a minor v. Federal Express Corporation and Diane M. Hyde | N/A | 1050577 | Alabama | Alabama Supreme Court | Rel: 10/03/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
____________________
1050577
____________________
Gracie Van Voorst, individually and as mother and next
friend of Cheyenne Van Voorst, a minor
v.
Federal Express Corporation and Diane M. Hyde
Appeal from Morgan Circuit Court
(CV-04-715)
PARKER, Justice.
This appeal arises out of a motor-vehicle accident that
occurred in Morgan County involving a vehicle operated by
Evelyn Van Voorst and one operated by Diane M. Hyde. A parked
vehicle belonging to Federal Express Corporation ("FedEx"),
was also allegedly involved in the accident. The trial court
1050577
2
entered a summary judgment in favor of FedEx and Hyde and a
partial summary judgment in favor of the estate of Evelyn Van
Voorst, who died as a result of injuries sustained in the
accident. This appeal followed.
Facts
The underlying action arises out of a motor-vehicle
accident that occurred on September 26, 2002, at the
intersection of Alabama Highway 36 and Freeman Avenue in
Morgan County. The accident involved two vehicles, one of
which was operated by Evelyn Van Voorst and the other by Hyde.
Gracie Van Voorst and her minor daughter, Cheyenne Van Voorst,
were passengers in the vehicle operated by Evelyn Van Voorst.
Gracie alleges that at the time of the accident a FedEx
vehicle was parked on Highway 36 near where that highway
intersects with Freeman Avenue. She alleges that the location
of the parked FedEx vehicle interfered with Hyde's and Evelyn
Van Voorst's ability to appreciate traffic approaching and
entering the intersection where the collision occurred. But
Gracie also testified in deposition that Evelyn Van Voorst,
who was traveling on Freeman Avenue, did not come to a
complete stop before entering Highway 36.
1050577
3
Alabama State Trooper Cpl. Tim White, one of the
officers who investigated the accident, testified that the
FedEx vehicle was stopped at a house to make a delivery when
the accident occurred. By the time Trooper White arrived at
the scene, the FedEx vehicle had left. Trooper White did not
try to locate the FedEx driver and was not aware of any action
taken by the State of Alabama against FedEx as a result of
this accident. To Trooper White's knowledge, neither FedEx nor
the driver of the FedEx vehicle was charged with any traffic
violation in conjunction with the accident.
Hyde testified that at the time of the accident between
Hyde's vehicle and Evelyn Van Voorst's vehicle, the FedEx
vehicle was parked in a gravel area adjacent to Alabama
Highway 36. Hyde was traveling west on Highway 36. She passed
the parked FedEx vehicle, which was parked to the right of
Hyde's travel lane in a gravel area. Hyde testified that no
portion of the FedEx vehicle extended onto the paved surface
of Highway 36 at the time of the accident. She recalled that
the wheels of the FedEx vehicle were on the gravel adjacent to
the roadway, not on the asphalt. Hyde said that she did not
have to swerve around the FedEx vehicle as she approached it
1050577
4
while traveling on Highway 36. The FedEx vehicle did not block
Hyde's vision. Hyde's testimony is consistent with the police
report, which places the FedEx vehicle on the gravel adjacent
to the roadway. The FedEx vehicle was parked at the time of
the impact between Hyde's vehicle and Evelyn Van Voorst's
vehicle.
In her deposition, Gracie initially testified that she
did not remember whether any portion of the parked FedEx
vehicle protruded onto Highway 36. After a recess in the
deposition, Gracie changed her testimony and stated that the
front tire on the driver's side of the FedEx vehicle was on
the road, but she could not estimate as to how far into the
road. She testified that more of the parked FedEx vehicle was
on the gravel shoulder than on the road.
Case History
Gracie, individually and as representative of her minor
daughter, Cheyenne, sued FedEx, Hyde, and the estate of Evelyn
Van Voorst alleging, among other things, negligence. FedEx
filed an answer denying every material allegation and denying
any negligent conduct on its part. Gracie amended her
complaint on December 17, 2004, identifying the personal
1050577
We note that Evelyn, not Gracie, was driving the
1
automobile.
5
representative for the estate of Evelyn Van Voorst and stating
that FedEx is also known and identified as Federal Express
Corporation and as FedEx, a corporation. FedEx answered the
amended complaint on January 3, 2005, reasserting every
defense set forth in its original answer. FedEx filed a second
amended answer on May 2, 2005, adding as a defense that
Gracie failed to keep an adequate lookout at the time of the
1
accident.
On June 21, 2005, FedEx filed a motion for summary
judgment and a brief in support of the motion. Gracie filed a
response to FedEx's summary-judgment motion on September 2,
2005. Along with her response, Gracie submitted her own
affidavit. FedEx filed a motion to strike Gracie's affidavit
because,
it
said,
the affidavit contained speculative
statements, inadmissible hearsay, and legal conclusions and
was untimely filed. Hyde and the estate of Evelyn Van Voorst
also filed motions for a summary judgment.
On September 7, 2005, the trial court conducted a hearing
on all pending motions. On October 31, 2005, the trial court
granted FedEx's motion to strike Gracie's affidavit and the
1050577
6
summary-judgment motions of FedEx, Hyde, and the estate of
Evelyn Van Voorst as to the negligence count, which was the
only claim asserted against FedEx and Hyde. On November, 21,
2005, the trial court certified the summary judgment as final
pursuant to Rule 54(b), Ala. R. Civ. P. Thereafter, on
November 28, 2005, Gracie filed a motion to vacate the summary
judgment pursuant to Rule 59(e), Ala R. Civ. P.; that motion
was denied on December 20, 2005, without a hearing.
Gracie appealed. The appeal was subsequently dismissed as
to the estate of Evelyn Van Voorst, leaving FedEx and Hyde as
appellees.
Standard of Review
"In reviewing the disposition of a motion for
summary judgment, 'we utilize the same standard as
the trial court in determining whether the evidence
before [it] made out a genuine issue of material
fact,' Bussey v. John Deere Co., 531 So. 2d 860, 862
(Ala. 1988), and whether the movant was 'entitled to
a judgment as a matter of law.' Wright v. Wright,
654 So. 2d 542 (Ala. 1995); Rule 56(c), Ala. R. Civ.
P. When the movant makes a prima facie showing that
there is no genuine issue of material fact, the
burden
shifts
to
the
nonmovant
to
present
substantial evidence creating such an issue. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989). Evidence is 'substantial' if it
is of 'such weight and quality that fair-minded
persons in the exercise of impartial judgment can
reasonably infer the existence of the fact sought to
be proved.' Wright, 654 So. 2d at 543 (quoting West
1050577
7
v. Founders Life Assurance Co. of Florida, 547 So.
2d 870, 871 (Ala. 1989)). Our review is further
subject to the caveat that this Court must review
the record in a light most favorable to the
nonmovant and must resolve all reasonable doubts
against the movant. Wilma Corp. v. Fleming Foods of
Alabama, Inc., 613 So. 2d 359 (Ala. 1993); Hanners
v. Balfour Guthrie, Inc., 564 So. 2d 412, 413 (Ala.
1990)."
Hobson v. American Cast Iron Pipe Co., 690 So. 2d 341, 344
(Ala. 1977).
Analysis
A. Did the trial court err in striking Gracie's affidavit?
Rule 56(e), Ala. R. Civ. P., states:
"Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show
affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or
certified copies of all papers or parts thereof
referred to in an affidavit shall be attached
thereto or served therewith. The court may permit
affidavits
to
be
supplemented
or
opposed
by
depositions, answers to interrogatories, or further
affidavits. When a motion for summary judgment is
made and supported as provided in this rule, an
adverse party may not rest upon the mere allegations
or denials of the adverse party's pleading, but the
adverse party's response, by affidavits or as
otherwise provided in this rule, must set forth
specific facts showing that there is a genuine issue
for trial. If the adverse party does not so respond,
summary judgment, if appropriate, shall be entered
against him."
1050577
8
Gracie mailed a response to FedEx's summary-judgment
motion on September 2, 2005; she submitted her affidavit at
that time. FedEx moved to strike Gracie's affidavit, asserting
four separate grounds: (1) that the affidavit was untimely
filed in light of the trial court's order and Rule 56(c)(2),
Ala. R. Civ. P.; (2) that the affidavit represented hearsay,
speculation, and contradictory testimony and was based on an
absence of personal knowledge; (3) that the affidavit
contained legal conclusions; and (4) that the affidavit
included an unauthenticated photograph of the house in front
of which the FedEx truck was parked at the time of the
accident. The trial court, "after careful consideration of
[FedEx's] separate motion, [Gracie's] response thereto, as
well as argument presented by counsel at the hearing," granted
the motion to strike on October 31, 2005, without stating a
reason.
The affidavit was filed with Gracie's response to FedEx's
summary-judgment motion in an effort to create a factual issue
and thereby prevent the entry of a summary judgment.
"In Lady Corrine Trawlers, Inc. v. Zurich Ins.
Co., 507 So. 2d 915 (Ala. 1987), we adopted the
reasoning of Van T. Junkins & Assoc. v. U.S.
Industries, 736 F.2d 656 (11th Cir. 1984), which
1050577
9
held that on a motion for summary judgment, a party
may not create an issue of fact 'with an affidavit
that
merely
contradicts
without
explanation,
previously clear testimony.' 736 F.2d at 657.
Likewise,
the
contradiction
between
Enoch's
affidavit and his deposition testimony cannot
defeat a motion for summary judgment when no basis
or explanation is given for that contradiction other
than recollection three years later."
Enoch v. Firestone Tire & Rubber Co., 534 So. 2d 266, 269-70
(Ala. 1988); see also Powers Equip. Co. v. First Alabama Bank,
585 So. 2d 1291, 1299 (Ala. 1991).
Gracie argues that the trial court erred in striking her
affidavit. In her affidavit, Gracie stated:
"As we approached the intersection I observed that
the FedEx truck had its left front wheel on the
highway blacktop and its front bumper was nearly
aligned with the edge of Freeman Avenue to my left.
I am absolutely certain that the left front wheel of
the FedEx truck was resting on the blacktop of
highway 36."
(Emphasis in original.)
In her deposition taken on December 1, 2004, Gracie
indicated that she could or did not remember whether any
portion of the FedEx vehicle was on the highway. However,
after a recess, she testified that the left front wheel of the
vehicle was on the blacktop; however, she could not testify as
to how far the wheel was onto the road. She said that the
1050577
10
diagram on the police report refreshed her recollection and
that she recalled seeing the driver's side front wheel on the
blacktop. She "decline[d] to estimate the inches" the wheel
protruded into the roadway. (Gracie's brief at 31.)
In addition to statements based on personal knowledge,
Gracie's affidavit was replete with legal conclusions. Such
conclusions were couched in language like "negligently drove,"
"at a speed that was excessive," "willfully drove," "dangerous
and negligent to park," "willfully drive," and "[t]he
negligence of the FedEx driver, thereof also of defendant
FedEx, combined with the negligence of defendant Diane M. Hyde
and the willful conduct of Evelyn A. Van Voorst to cause the
injury to myself and my child, Cheyenne Van Voorst." Her
affidavit also included such statements as "Hyde ... not
having clear vision of the intersection" and "Evelyn certainly
knew."
"Rule 56(e) 'plainly requires (the word "shall"
being mandatory) that an affidavit state matters
personally known to the affiant.' Jameson v.
Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949). See,
also, Wright, Miller, and Kane, Federal Practice &
Procedure: Civil 2d § 2738, p. 467 (1983).
"....
1050577
11
"'In Moore's Federal Practice, we find
the
following
language
regarding
affidavits
in support of, or in opposition to, summary
judgment:
"'"Affidavits
containing
statements
made
merely
'on
information and belief' will be
disregarded. Hearsay testimony
and opinion testimony that would
not be admissible if testified to
at trial may not be set forth in
an affidavit. The affidavit is no
place for ultimate facts and
conclusions
of
law,
nor
for
argument
of
the
party's
cause...."
"'6 J. Moore & J. Wicker, Moores Federal
Practice, Paragraph 56.22[I] at 56-1312
through 56-1317 (2d ed. 1982) (footnotes
omitted). See, also, Day v. Merchants Bank
of Mobile, 431 So. 2d 1254 (Ala. 1983).'"
Ex parte Head, 572 So. 2d 1276, 1279 (Ala. 1990)(quoting
Osborn v. Johns, 468 So. 2d 103, 108 (Ala. 1985)).
Gracie also attached an unauthenticated photograph of the
house in front of which the FedEx truck was parked to her
affidavit. Affidavits "shall set forth such facts as would be
admissible in evidence ...." Rule 56(e), Ala. R. Civ. P. For
a photograph to be admitted into evidence, the following two
conditions must satisfied:
1050577
12
"First, the picture must be properly verified and
secondly, the photograph must tend to prove or
disprove some relevant fact or must corroborate or
disprove some other evidence offered or to be
offered."
Harrison v. Woodley Square Apartments, Ltd., 421 So. 2d 101,
103 (Ala. 1982). Gracie commented on the photograph in her
affidavit, but provided no authentication of it.
"In determining admissibility under Rule 56[, Fed.
R. Civ. P.,] the same standards apply as at trial.
... Thus, in ruling upon summary judgment motions,
courts
refuse
to
consider
hearsay
...;
unauthenticated documents ...; inadmissible expert
testimony ...; documents without a proper foundation
...; parol evidence ..., and even evidence barred by
the dead man's rule."
Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F.
Supp. 1125, 1139 (E.D. Pa. 1980), aff'd in part, rev'd in
part, In re Japanese Elec. Prods. Antitrust Litigation, 723
F.2d 238 (3d Cir. 1983).
FedEx's
motion
to
strike
was
also
based
on
the
untimeliness of the affidavit. The trial court's order setting
the hearing on the summary-judgment motions instructed the
parties that any materials in opposition should be served at
least two days before the scheduled hearing. The court's
instruction was in accord with Rule 56(c)(2), Ala. R. Civ. P.,
which provides that: "any statement or affidavit in opposition
1050577
13
shall be served at least two (2) days prior to the hearing."
FedEx received its copy of the affidavit on Tuesday, September
6, the day before the September 7 hearing. Gracie mailed the
affidavit on Friday, September 2, but Monday, September 5, was
the Labor Day holiday, so there was no possibility of a timely
delivery two days before the hearing. Rule 6, Ala. R. Civ. P.
("When the period of time prescribed or allowed [by the Rules]
is less than eleven (11) days, intermediate Saturdays,
Sundays, and legal holidays shall be excluded in the
computation.").
Although the trial court did not state a reason for
striking the affidavit, there were multiple valid grounds.
"'[T]he
trial
court
has
great
discretion
in
determining whether evidence ... is relevant and
whether it should be admitted or excluded.' Sweeney
v. Purvis, 665 So. 2d 926, 930 (Ala. 1998). When
evidentiary rulings of the trial court are reviewed
on appeal, 'rulings on the admissibility of evidence
are within the sound discretion of the trial judge
and will not be disturbed on appeal absent an abuse
of that discretion.' Bama's Best Party Sales, Inc.
v. Tupperware, U.S., Inc., 723 So. 2d 29, 32 (Ala.
1998), citing Preferred Risk Mut. Ins. Co. v. Ryan,
589 So. 2d 165 (Ala. 1991)."
Bowers v. Wal-Mart Stores, Inc., 827 So. 2d 63, 71 (Ala.
2001). The trial court did not exceed its discretion in
striking Gracie's affidavit.
1050577
14
B. Did the trial court err in entering a summary judgment in
favor of FedEx on Gracie's negligence claim?
Gracie argues in her brief to this Court that "defendant
FedEx is negligent even if the FedEx truck was lawfully
parked." (Gracie's brief at 25.) However, Gracie cites no
authority in support of this assertion. See Rule 28(a)(10),
Ala. R. App. P.
"The purpose of Rule 28, Ala. R. App. P.,
outlining the requirements for appellate briefs, is
to conserve the time and energy of the appellate
court and to advise the opposing party of the points
he or she is obligated to make. United States v.
Levy, 391 F.3d 1327 (11th Cir. 2004) (discussing the
rule that issues not briefed are waived and Rule 28,
Fed. R. App. P., which sets out the requirements for
appellate briefs in the federal courts). Rule
28(a)(10), Ala. R. App. P., provides that the
argument section of the appellant's brief shall set
out 'the contentions of the appellant/petitioner
with respect to the issues presented, and the
reasons therefor, with citations to the cases,
statutes, other authorities, and parts of the record
relied on.' Additionally, '"[i]t is not the function
of this Court to do a party's legal research or to
make and address legal arguments for a party based
on undelineated general propositions not supported
by sufficient authority or argument."' Butler v.
Town of Argo, 871 So.2d 1, 20 (Ala.2003) (quoting
Dykes v. Lane Trucking, Inc., 652 So.2d 248, 251
(Ala.1994))."
1050577
15
Ex parte Borden, [Ms. 1050042, August 17, 2007] ___ So. 2d
___, ___ (Ala. 2007). Because Gracie has not complied with
Rule 28(a)(10), we do not consider this issue.
C. Did the trial court err in entering a summary judgment for
FedEx on Gracie's claim of negligence per se?
Gracie claims that FedEx was negligent per se because,
she says, the FedEx vehicle was parked illegally on the
roadway at the time of the accident, in violation of §§ 32-5A-
136 and 32-5A-137(a)(1)g., Code of Alabama 1975. (Gracie's
brief at 27.) Section 32-5A-136(a), Ala. Code 1975, provides:
"(a) Outside a business or residence district no
person shall stop, park or leave standing any
vehicle, whether attended or unattended, upon the
roadway when it is practicable to stop, park or so
leave such vehicle off the roadway, but in every
event an unobstructed width of the highway opposite
a standing vehicle shall be left for the free
passage of other vehicles and a clear view of such
stopped vehicle shall be available from a distance
of 200 feet in each direction upon such highway."
Section 32-5A-137(a)(1)g., Ala. Code 1975. provides:
"(a) Except when necessary to avoid conflict
with other traffic, or in compliance with law or the
directions
of
a
police
officer
or
official
traffic-control device, no person shall:
"(1) Stop, stand or park a vehicle:
1050577
16
"a. On the roadway side of any
vehicle stopped or parked at the edge
or curb of a street;
"b. On a sidewalk;
"c. Within an intersection;
"d. On a crosswalk;
"e. Between a safety zone and the
adjacent curb or within 30 feet of
points
on
the
curb
immediately
opposite the ends of a safety zone,
unless a different length is indicated
by signs or markings;
"f. Alongside or opposite any
street excavation or obstruction when
stopping, standing or parking would
obstruct traffic;
"g. Upon any bridge or other
elevated
structure,
upon
a
highway
or
within
a
highway
tunnel ...."
Gracie fails to establish the application of these
statutes to the location of the accident. Moreover, there was
no evidence establishing that the FedEx vehicle was illegally
parked. Hyde testified that the FedEx vehicle was off the
highway and that she did not have to swerve around it as she
entered the intersection where the collision occurred. The
police report indicated that the vehicle was off the road. No
citations were given to the driver of the FedEx vehicle. Even
1050577
17
though Gracie changed her deposition testimony to say that the
driver's side front tire of the FedEx vehicle was on the road,
she could not estimate how far into the road. Thus, there was
no evidence indicating that the FedEx vehicle was obstructing
traffic or that its position left no unobstructed width of
road.
Gracie draws the conclusion that "(1) [Gracie is] in the
protected class [of the statutes she alleges FedEx violated],
(2) the injury caused was the type contemplated by the
statute, (3) the FedEx driver violated the statute, and (4)
this violation caused the injury to the plaintiffs." (Gracie's
brief at 28.) See Fox v. Barthalf, 374 So. 2d 294, 295-96
(Ala. 1979) (setting out the elements necessary to establish
a cause of action for negligence per se). Gracie, however,
does not offer any evidence to support these conclusions.
"This Court ... will not address the merits of
either
party's
argument
because
Davis,
the
appellant, has not satisfied the requirements of
Rule 28(a)(10), Ala. R. App. P., for presenting this
issue. Davis's citation to the statute and a general
principle of law, along with a conclusory statement
that she presented substantial evidence to support
her claims do not establish sufficient argument to
necessitate reversal."
1050577
18
Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d 1076, 1092-93
(Ala. 2007).
The trial court did not err in entering the summary
judgment on Gracie's negligence per se claim.
D. Did the trial court err in entering a summary judgment in
favor of Hyde on Gracie's negligence claim against Hyde?
Gracie contends that Hyde was negligent in failing to see
Evelyn Van Voorst's automobile before the collision or in
failing to take evasive action to avoid the collision.
(Gracie's brief at 32.) Immediately before the accident, Hyde
was traveling west on Highway 36 while Evelyn Van Voorst was
driving south on Freeman Avenue in Morgan County. Hyde was
traveling at 40-50 m.p.h., within the established speed limit
of 55 m.p.h. Cpl. White, the state trooper who investigated
the accident, testified that this was a reasonable speed for
the misty weather conditions. Hyde was driving on a main
thoroughfare; Evelyn Van Voorst was entering Highway 36 from
a side street, which had a stop sign at its intersection with
Highway 36. The accident report lists the vehicle Evelyn Van
Voorst was driving as unit 1, and the vehicle Hyde was driving
as unit 2. The accident report states that "unit 1 pulled into
1050577
19
the intersection failing to yield right of way to unit 2." In
fact, there was testimony indicating that unit 1 never stopped
for the stop sign but rolled right through it. In her
deposition, when asked if Evelyn Van Voorst stopped at the
stop sign, Gracie stated: "No." When asked, "But as far as you
know, that's what happened. She didn't come up to the stop
sign and stop. She pulled into Highway 36 even though she
couldn't see if the road coming to her left was clear?" Gracie
Van Voorst answered "yes." Thus, there is no evidence of
negligence on Hyde's part. The trial court did not err in
granting Hyde's motion for a summary judgment.
E. Did the trial court err in denying Gracie's motion to
vacate the summary judgment without a hearing?
Gracie filed a motion to vacate the summary judgment
under Rule 59, Ala. R. Civ. P. FedEx filed a response in
opposition. The trial court denied the motion, without a
hearing. Gracie now contends that "the failure to hold a
hearing injuriously affected [her] substantial rights ...
because there being no opinion, they could only speculate as
to the justification employed by the Honorable Trial Court."
1050577
20
(Gracie's brief at 39.) Gracie offers absolutely no evidence
in support of this allegation.
Rule 59(g), Ala. R. Civ. P., provides for an opportunity
to be heard on postjudgment motions:
"Presentation of any post-trial motion to a judge is
not required in order to perfect its making, nor is
it required that an order continuing any such
motions to a date certain be entered. All such
motions remain pending until ruled upon by the court
(subject to the provisions of Rule 59.1), but shall
not be ruled upon until the parties have had
opportunity to be heard thereon."
Under Rule 61, Ala. R. Civ. P., any error in the court's
refusing to hold a hearing on a motion is harmless "unless
refusal to take such action appears to the court inconsistent
with substantial justice." This Court has stated the following
regarding whether a denial of a Rule 59 motion without a
hearing was harmless error:
"This
error,
however,
is
not
necessarily
reversible error. Under Rule 45, Ala. R. App. P.,3
the failure to grant a hearing on a motion for new
trial pursuant to Rule 59(g) is reversible error
only
if
it
'probably
injuriously
affected
substantial rights of the parties.' See Greene[ v.
Thompson], 554 So. 2d [376] at 380-81 [(Ala. 1989)];
Walls[ v. Bank of Prattville], 554 So. 2d [381] at
382 [(Ala. 1989)]. In Greene v. Thompson, supra,
this Court formulated a test to determine when the
denial of a Rule 59(g) request for a hearing is
harmless error:
1050577
21
"'Harmless error occurs, within the context
of a Rule 59(g) motion, where there is
either no probable merit in the grounds
asserted in the motion, or where the
appellate
court
resolves
the
issues
presented therein, as a matter of law,
adversely to the movant, by application of
the same objective standard of review as
that applied in the trial court.'
"_____
" Rule 45 provides:
3
"'No judgment may be reversed or set
aside, nor new trial granted in any civil
or
criminal
case
on
the
ground
of
misdirection of the jury, the giving or
refusal of special charges or the improper
admission or rejection of evidence, nor for
error as to any matter of pleading or
procedure, unless in the opinion of the
court to which the appeal is taken or
application is made, after an examination
of the entire cause, it should appear that
the error complained of has probably
injuriously affected substantial rights of
the parties.'"
Kitchens v. Maye, 623 So. 2d 1082, 1088-89 (Ala. 1993).
In Greene v. Thompson, 554 So. 2d 376 (Ala. 1989), cited
in Kitchens, this Court stated:
"If it is clearly perceivable to the appropriate
appellate court that the failure to hold the hearing
did not injuriously affect the movant's substantial
rights, as it is in this case, where the Estate's
motion was not well taken as a matter of law, the
error will be considered harmless. See Hicks v.
Alabama Pest Services, Inc., 548 So. 2d 148 (Ala.
1989)."
1050577
22
554 So. 2d at 381.
Gracie has not presented any evidence that shows that her
substantial rights were injuriously affected by the trial
court's failure to hold a hearing on her motion to vacate. She
simply states that she "could only speculate as to the
justification
employed
by
the Honorable Trial Court."
(Gracie's brief at 39.) The failure of the trial court to hold
a hearing was harmless error.
F. Did the trial court err by certifying the summary judgment
as final pursuant to Rule 54(b), Ala. R. Civ. P.?
Both FedEx and Hyde filed motions pursuant to Rule 54(b),
Ala. R. Civ. P., asking the trial court to certify the summary
judgment as final, which the trial court did. Gracie contends
that "there was no necessity to make [the] summary judgment
final and the case would likely have been completely resolved
on the claims remaining without review." (Gracie's brief at
39-40.)
For a court to be in error in certifying a judgment as
final, the party claiming error must show that the issues
presented in the complaint are so intertwined that a separate
adjudication of one claim would present the possibility of
1050577
23
inconsistent results on the other claims. On this matter, this
Court has stated:
"Rule 54(b), Ala. R. Civ. P., states:
"'Judgment Upon Multiple Claims or
Involving Multiple Parties. When more than
one claim for relief is presented in an
action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when
multiple parties are involved, the court
may direct the entry of a final judgment as
to one or more but fewer than all of the
claims or parties only upon an express
determination that there is no just reason
for delay and upon an express direction for
the entry of judgment....'
"This rule clearly provides that under an
appropriate set of facts a trial court may enter a
judgment on fewer than all the claims and make that
judgment a final judgment. See Donald v. City
National Bank of Dothan, 295 Ala. 320, 329 So. 2d 92
(1976); Pate v. Merchants Nat. Bank of Mobile, 409
So. 2d 797 (1982).
"When
the
issues
raised
in
a
complaint
containing multiple claims are directly related to,
and intertwined with, each other to such a degree
that a separate adjudication of one of those claims
would pose an unreasonable risk of inconsistent
results on the adjudication of the remaining claims,
then, of course, the entry of a final judgment as to
that claim would be an abuse of discretion by the
trial court. See Branch v. SouthTrust Bank of
Dothan, N.A., 514 So. 2d 1373 (Ala. 1987); Gray v.
Central Bank of Tuscaloosa, 519 So. 2d 477 (Ala.
1987)."
1050577
24
Parsons v. Bank Leumi Le-Israel, B.M., 565 So. 2d 20, 25-26
(Ala. 1990).
There is no threat of inconsistent results here; the
claims are not dependent upon each other. The only remaining
claim is a wantonness claim against the estate of Evelyn Van
Voorst. This claim has no relation to the alleged cause of
actions against either FedEx or Hyde. It deals with the
actions of Evelyn Van Voorst while in control of her vehicle.
Thus, this issue has no merit.
Conclusion
For the reasons expressed in this opinion, the judgment
of the trial court is affirmed.
AFFIRMED.
Cobb, C.J., and See, Woodall, and Smith, JJ., concur. | October 3, 2008 |
0f1a5418-32f8-4aed-9d49-687f34ec3e87 | Christopher Howard and Linda Howard, individually and as mother and next friend of Lacy Howard and Katlin Howard v. Allstate Insurance Company et al. | N/A | 1071215 | Alabama | Alabama Supreme Court | REL: 11/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1071215
____________________
Christopher Howard and Linda Howard, individually and as
mother and next friend of Lacy Howard and Katlin Howard
v.
Allstate Insurance Company et al.
Appeal from Mobile Circuit Court
(CV-07-631)
STUART, Justice.
Christopher Howard and Linda Howard, individually and as
mother and next friend of Lacy Howard and Katlin Howard,
appeal the summary judgments entered in favor of Allstate
1071215
Gonzales also goes by the names Gonzales Tomas, Diego
1
Gonzales, Julio Tomas, Gomez, Martinez, and Matias.
Preston states that Gonzales was never a full-time
2
employee and that he merely worked sporadically as a day
laborer.
2
Insurance Company, Preston Thompson, Perry Thompson, and South
Alabama Property Services, Inc. ("SAPS"), defendants in an
action filed by the Howards in the Mobile Circuit Court. We
dismiss the appeal.
I.
On February 26, 2007, the Howards were traveling
southbound on Schillinger Road in Mobile when, after slowing
down to make a left turn, the 1993 Buick Regal automobile they
were traveling in was struck in the rear by a 2001 Chevrolet
Silverado 1500 pickup truck driven by Tomas Gonzales. All
1
four members of the Howard family were injured in the
accident.
The truck Gonzales was driving at the time of the
accident was owned by Preston Thompson. Preston and his wife
Rachel own SAPS, a company that cleans and services foreclosed
homes, and Gonzales worked at least occasionally as a laborer
for SAPS. On the date of the accident, Gonzales and his
2
housemate, Juan Elizondo, had been helping Preston and his
1071215
Preston states that Gonzales and Elizondo volunteered to
3
help him and Perry move furniture that day, that the work was
unrelated to SAPS, and that Gonzales and Elizondo were not
compensated for their help.
3
brother Perry move furniture and items belonging to the family
between Mobile and Baldwin Counties. After their work in
3
Baldwin County was completed, Preston allowed Elizondo to
drive the truck home to Mobile so that Elizondo could
transport a piece of furniture he wanted and so that Preston
did not have to drive them back to Mobile and then return to
Baldwin County, where he lived. Preston and Elizondo agree
that Preston specifically told Elizondo not to let Gonzales
drive the truck, because Preston was aware that Gonzales had
problems with his eyesight.
Elizondo claims that, after Gonzales and Elizondo
returned home, he showered and went to bed to rest his ankle,
which he had hurt that day. He further states that the keys
to the truck were in his room when he went to bed. Gonzales,
however, claims that Elizondo gave him the keys to the truck
later that night so that Gonzales could get them some food.
Elizondo denies this; he claims that Gonzales must have taken
the keys to the truck while he slept. Regardless of how he
1071215
After taking her deposition, the Howards agreed to
4
dismiss Rachel as a defendant.
4
got the keys, Gonzales subsequently left in the truck and was
involved in the accident with the Howards.
On March 23, 2007, the Howards sued Gonzales, Preston and
Rachel Thompson, Perry Thompson, and SAPS in the Mobile
Circuit Court, asserting claims of negligence and wantonness.4
On December 12, 2007, Allstate filed a motion to intervene in
the case, noting that it had issued an automobile-insurance
policy to Preston on the truck involved in the accident and
that there were outstanding issues regarding coverage for the
accident with the Howards. Allstate maintained that there was
no coverage for the accident because, it argued, Gonzales was
not an insured person under the policy.
Between December 17, 2007, and January 15, 2008, Preston,
Perry, SAPS, and Allstate all moved separately for a summary
judgment, arguing that Gonzales was not acting as an agent or
employee of Preston or SAPS at the time of the accident and
that nobody had given Gonzales permission or authorization to
use the truck on the date of the accident; the Howards opposed
the motions. On February 13, 2008, the Howards amended their
complaint to assert additional negligence and wantonness
1071215
5
claims and to add Elizondo as a defendant, arguing that he was
an agent of Preston, Perry, and/or SAPS and that he had
negligently or wantonly either entrusted Gonzales with the
truck or failed to secure the keys to the truck.
On March 7, 2008, the trial court granted the pending
summary-judgment motions and dismissed those defendants from
the case. They subsequently moved the trial court to make
those judgments final pursuant to Rule 54(b), Ala. R. Civ. P.,
and, on May 23, 2008, over the Howards' objection, the trial
court granted those motions and entered an order making the
previously entered summary judgments final. On May 23, 2008,
the Howards filed their notice of appeal to this Court.
II.
"This Court looks with some disfavor upon
certifications under Rule 54(b).
"'It
bears
repeating,
here,
that
"'[c]ertifications under Rule 54(b) should
be entered only in exceptional cases and
should not be entered routinely.'" State
v. Lawhorn, 830 So. 2d 720, 725 (Ala. 2002)
(quoting Baker v. Bennett, 644 So. 2d 901,
903 (Ala. 1994), citing in turn Branch v.
SouthTrust Bank of Dothan, N.A., 514 So. 2d
1373 (Ala. 1987)). "'"Appellate review in
a piecemeal fashion is not favored."'"
Goldome Credit Corp. [v. Player, 869 So. 2d
1146, 1148 (Ala. Civ. App. 2003)] (quoting
Harper
Sales
Co.
v.
Brown,
Stagner,
1071215
6
Richardson, Inc., 742 So. 2d 190, 192 (Ala.
Civ. App. 1999), quoting in turn Brown v.
Whitaker Contracting Corp., 681 So. 2d 226,
229 (Ala. Civ. App. 1996)) (emphasis
added).'
"Dzwonkowski v. Sonitrol of Mobile, Inc., 892 So. 2d
354,
363
(Ala.
2004).
Also,
a
Rule
54(b)
certification should not be entered if the issues in
the claim being certified and a claim that will
remain pending in the trial court '"are so closely
intertwined that separate adjudication would pose an
unreasonable
risk
of
inconsistent
results."'
Clarke-Mobile Counties Gas Dist. v. Prior Energy
Corp., 834 So. 2d 88, 95 (Ala. 2002) (quoting Branch
v. SouthTrust Bank of Dothan, N.A., 514 So. 2d 1373,
1374 (Ala. 1987))."
Schlarb v. Lee, 955 So. 2d 418, 419-20 (Ala. 2006). In the
instant case, the trial court certified as final the judgments
entered in favor of Preston, Perry, SAPS, and Allstate while
the claims against Gonzales and the claims made against
Elizondo, asserted after the other defendants had moved for
summary judgments, remained pending. The claims against
Gonzales specifically alleged that he was acting in the line
and scope of his employment with Preston and SAPS at the time
of the accident; the claims against Elizondo specifically
alleged that "at all material times" Elizondo was acting as
an agent, servant, or employee for Preston, Perry, and SAPS.
It would accordingly be contrary to the interests of justice
1071215
7
to adjudicate these remaining claims against Gonzales and
Elizondo separately from the claims against the other
defendants; the common issues are intertwined. We therefore
conclude that the trial court exceeded its discretion in
certifying the summary judgments against Preston, Perry, SAPS,
and Allstate as final. Because "[a] nonfinal judgment will
not support an appeal," Dzwonkowski v. Sonitrol of Mobile,
Inc., 892 So. 2d 354, 363 (Ala. 2004), the Howards' appeal
must be dismissed.
APPEAL DISMISSED.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur. | November 21, 2008 |
4eab6c85-a16c-4b88-8095-303ceddfdae7 | Ex parte Willie Albert McCall. PETITION FOR WRIT OF CERTIORARI TO THE COURTOF CRIMINAL APPEALS (In re: Willie Albert McCall v. State of Alabama) | N/A | 1070633 | Alabama | Alabama Supreme Court | REL: 11/7/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1070633
_________________________
Ex parte Willie Albert McCall
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Willie Albert McCall
v.
State of Alabama)
(Mobile Circuit Court, CC-03-1276.60 and CC-03-1277.60;
Court of Criminal Appeals, CR-06-0021)
SEE, Justice.
The Court of Criminal Appeals affirmed the trial court's
dismissal of Willie Albert McCall's Rule 32, Ala. R. Crim. P.,
1070633
2
petition for postconviction relief. This Court granted
McCall's petition for the writ of certiorari to address a
possible conflict between the Court of Criminal Appeals'
decision and this Court's decision in Ex parte Grau, 791 So.
2d 345 (Ala. 2000). We hold that the Court of Criminal
Appeals' judgment conflicts with prior caselaw, and we
therefore reverse that judgment and remand this case.
Facts and Procedural History
Willie Albert McCall was indicted and tried for capital
murder and attempted murder and for being a convicted felon in
possession of a firearm. He was convicted on the firearm
charge and was sentenced to five years' imprisonment. The
jury, however, could not reach a unanimous verdict on the
other two charges, and the trial court therefore declared a
mistrial. McCall was reindicted and was eventually convicted
of murder and attempted murder. He was sentenced to life
imprisonment without parole on each conviction. McCall
appealed his convictions for murder and attempted murder, and
the Court of Criminal Appeals affirmed the trial court's
judgment, without an opinion. McCall v. State, 919 So. 2d 1237
(Ala. Crim. App. 2004) (table).
1070633
The same attorney represented McCall at his trial and on
1
appeal.
McCall alleged in his Rule 32 petition that the agreement
2
to nol-pros related to his indictments for capital murder and
attempted murder. However, his testimony at the evidentiary
hearing was that the agreement related to "the capital murder
case and first degree robbery." McCall was not convicted of
first-degree robbery, nor is there any indication in the
record that he was actually indicted for that offense.
3
McCall then petitioned the trial court for post-
conviction relief under Rule 32, Ala. R. Crim. P., alleging
ineffective assistance of counsel at both his trial and on
appeal. He later amended his petition to allege 12 instances
1
of ineffective assistance. The trial court held a hearing on
his motion, at which McCall offered testimony on only 1 of his
12 claims: that his trial counsel's performance was deficient
because counsel had failed to move the trial court to dismiss
his capital-murder and attempted-murder indictments even
2
though, he argued, the State had promised to nol-pros those
indictments if he withdrew his appeal of the firearms
conviction. McCall contends that he withdrew his appeal of
the firearms conviction but that the State tried him on the
charges of capital murder and attempted murder anyway. McCall
entered into evidence an appellate brief filed by counsel in
the Court of Criminal Appeals, the State's brief in response,
1070633
4
and the Court of Criminal Appeals' unpublished memorandum,
which, McCall stated, were offered to show ineffective
assistance of counsel "on the appeal process."
In response to his claims, the State offered the
testimony of McCall's counsel and of the prosecutor. McCall's
counsel explained his trial strategy. The trial court
dismissed McCall's Rule 32 petition, stating:
"[McCall's] allegations that the failure of the
trial and appellate counsel to do certain things
does not indicate how he believes any of those
actions would have made a difference in the jury's
findings of guilt. The bare allegations of [McCall]
do not rise to the level, either on a legal or
practical trial level, of showing the reasonable
probability of a different result, and they do not
meet the requirements of Strickland[ v. Washington],
466 U.S. 688 (1984)]."
See Strickland v. Washington, 466 U.S. 688, 694 (1984) ("The
defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of
the proceeding would have been different. A reasonable
probability
is
a
probability
sufficient
to
undermine
confidence in the outcome.").
McCall moved the trial court to alter, amend, or vacate
its order, arguing that the trial court erred in not making
specific findings of fact as required by Rule 32.9, Ala. R.
1070633
Rule 32.9(d) provides: "The court shall make specific
3
findings of fact relating to each material issue of fact
presented."
5
Crim. P. The trial court denied that motion. McCall
3
appealed the trial court's decision, and the Court of Criminal
Appeals affirmed, by unpublished memorandum. McCall v. State
(No. CR-06-0021, Dec. 14, 2007), ___ So. 2d ___ (Ala. Crim.
App. 2007) (table). McCall then petitioned this Court for the
writ of certiorari. We granted the writ to determine whether
the Court of Criminal Appeals' decision conflicts with Ex
parte Grau, 791 So. 2d 345 (Ala. 2000).
Issue
McCall argues that the Court of Criminal Appeals'
decision affirming the trial court's dismissal of his Rule 32,
Ala. R. Crim. P., petition, which was issued after an
evidentiary hearing and which did not contain specific
findings of fact, conflicts with Ex parte Grau.
Analysis
McCall argues here that the Court of Criminal Appeals'
decision conflicts with Ex parte Grau because the trial court
did not make specific findings as to the material issues of
fact presented in his Rule 32, Ala. R. Crim. P., petition for
1070633
6
postconviction relief. Grau was convicted of possession of a
controlled substance and possession of drug paraphernalia.
The arresting officer found cocaine and drug paraphernalia in
the pocket of Grau's companion, Holly Simmons. The Court of
Criminal Appeals affirmed Grau's conviction without an
opinion.
Grau petitioned the trial court for postconviction relief
under Rule 32, Ala. R. Crim. P., alleging that his counsel
should have solicited the testimony of an expert witness as to
a drug test Grau had taken a few days after his arrest. Grau
argued that the "expert testimony would have indicated that,
because there was no cocaine in Grau's system at the time of
the test, Grau could not have ingested cocaine shortly before
his arrest." Grau, 791 So. 2d at 346. Grau also argued that
"his trial counsel should have subpoenaed Simmons to establish
that he did not use the cocaine and did not know that Simmons
was in possession of the cocaine and drug paraphernalia."
Grau, 791 So. 2d at 346. The trial court denied Grau's Rule
32 petition without making any findings of fact on his
ineffective-assistance-of-counsel
claim.
The
Court
of
Criminal Appeals affirmed.
1070633
7
On certiorari review, this Court concluded that "because
the circuit court did not make specific findings of fact, any
review of Grau's claims by the Court would be premature." Ex
parte Grau, 791 So. 2d at 346-47. We stated: "'Rule 32.9(d),
Ala. R. Crim. P., requires that if an evidentiary hearing is
conducted on the Rule 32 petition, "[t]he court shall make
specific findings of fact relating to each material issue of
fact presented."'" 791 So. 2d at 347 (quoting Anglin v. State,
719 So. 2d 855, 857 (Ala. Crim. App. 1996)). We went on to
note that "'[a] statement of the basis of the trial court's
decision is essential to afford the appellant due process.'"
791 So. 2d at 347 (quoting Owens v. State, 666 So. 2d 31, 32
(Ala. Crim. App. 1994)). We then reversed the judgment and
remanded the case to the Court of Criminal Appeals, with
instructions for that court to remand the case to the trial
court to make specific findings of fact and to state the basis
of its ruling.
Here, McCall, like Grau, petitioned for postconviction
relief, alleging ineffective assistance of counsel, and the
trial court, like the trial court in Ex parte Grau, held an
evidentiary hearing, but it did not issue specific findings of
1070633
This Court has stated:
4
"[T]o establish a claim of ineffective assistance of
counsel, a petitioner must prove (1) that counsel
did not provide reasonably effective assistance and
(2) that counsel's deficient performance prejudiced
8
fact when it dismissed McCall's petition. McCall argues,
therefore, that the Court of Criminal Appeals should have
reversed the trial court's judgment and remanded the case to
allow the trial court to issue specific findings of fact. The
Court of Criminal Appeals' failure to do so, McCall argues, is
in conflict with the precedent set forth in Ex parte Grau;
therefore, its judgment should be reversed and the case
remanded. We agree.
The State argues that "[a]lthough McCall sufficiently
pleaded some of his claims warranting him an evidentiary
hearing, he failed to present any evidence at his evidentiary
hearing showing that there was a material issue of fact
concerning any of those claims." State's brief at 11.
Specifically, the State argues that the trial court's judgment
was sufficient because McCall, unlike the petitioner in Ex
parte Grau, did not present sufficient evidence of any
prejudice he suffered as a result of counsel's allegedly
deficient performance. Therefore, the State argues, there
4
1070633
the petitioner. ... '[To show prejudice, the]
defendant must show that there is a reasonable
probability that, but for counsel's unprofessional
errors, the result would have been different. A
reasonable probability is a probability sufficient
to undermine confidence in the outcome.'"
Ex parte Land, 775 So. 2d 847, 850 (Ala. 2000) (quoting
Strickland, 466 U.S. at 694).
The State apparently confuses a "material issue of fact,"
5
that is, a factual issue that is material to the claim for
relief, with a "genuine issue of material fact," that is, an
issue of material fact that is supported by substantial
evidence. See Black's Law Dictionary 708 (8th ed. 2004)
(defining genuine issue of material fact as "a triable,
substantial, or real question of fact supported by substantial
evidence").
9
was no violation of the Rule 32.9(d) requirement that "[t]he
court shall make specific findings of fact relating to each
material issue of fact presented."
5
We note that Rule 32.7(d), Ala. R. Crim. P., provides:
"If the court determines that the petition is not
sufficiently specific, or is precluded, or fails to
state a claim, or that no material issue of fact or
law exists which would entitle the petitioner to
relief under this rule and that no purpose would be
served by any further proceedings, the court may
either dismiss the petition or grant leave to file
an amended petition. Leave to amend shall be freely
granted. Otherwise, the court shall direct that the
proceedings continue and set a date for hearing."
Thus, a hearing need not be held if the petitioner fails to
adequately present a material issue. If, however, the court
1070633
We stated in Ex parte Grau:
6
"'Rule 32.9(d), Ala. R.Crim. P., requires that
if an evidentiary hearing is conducted on the Rule
32 petition, "[t]he court shall make specific
findings of fact relating to each material issue of
fact presented."' ...
"Although the circuit court held an evidentiary
hearing on Grau's claims, the only order that court
entered is this notation in the case action summary
sheet: 'Petition for relief from conviction or
sentence denied.' Accordingly, the judgment of the
10
holds a hearing, then Rule 32.9, Ala. R. Crim. P., provides,
in pertinent part, as follows:
"(a) Hearing. Unless the court dismisses the
petition, the petitioner shall be entitled to an
evidentiary hearing to determine disputed issues of
material fact ....
"....
"(d) Findings of Fact. The court shall make
specific findings of fact relating to each material
issue of fact presented."
Thus, the trial court must first determine whether the
petition raises "material issue[s] of fact or law ... which
would entitle the petitioner to relief under [Rule 32]." Rule
32.7(d). Once a hearing is held on those issues, the trial
court is required to make findings of fact as to each of the
material issues upon which the hearing was held. See Ex parte
Grau, supra.6
1070633
Court of Criminal Appeals is reversed and the case
is remanded for that court to remand the case for
the circuit court to enter an order pursuant to Rule
32.9, Ala. R. Crim. P., making specific findings of
fact as to each issue of fact presented and clearly
stating the basis of its ruling on the petition."
791 So. 2d at 347 (quoting Anglin, 719 So. 2d at 857).
McCall raised the following grounds for postconviction
7
relief: (1) trial counsel failed to invoke Rule 9.3, Ala. R.
Crim. P., which requires that all witnesses who testify on the
State's behalf be removed from the courtroom; (2) trial
counsel deprived him of his right to take the witness stand
and testify in his own defense; (3) trial counsel failed to
object or to move for a mistrial on the ground that the court
failed to admonish the jurors before allowing them to separate
during their deliberation; (4) trial counsel failed to secure
funds to hire an identification expert to testify in McCall's
defense; (5) trial counsel failed to move to dismiss the
indictment on the ground that the State had breached the
agreement it reached to nol-pros the original charges; (6)
trial counsel failed to request that the jury be polled when
it returned the verdict; (7) trial counsel failed to move that
the indictment be dismissed on the ground that favorable and
material evidence had been intentionally destroyed or lost;
(8) trial counsel failed to pursue and present as a defense
the planting of or tampering with evidence by the corrupted
officers; (9) trial counsel failed to request a mistrial or
curative instructions when the trial court erroneously allowed
the jury to consider inadmissible hearsay evidence; (10)
appellate counsel failed to raise on appeal McCall's challenge
to the composition of the venire from which the petit jury was
selected; (11) appellate counsel failed to raise on appeal
McCall's challenge to the prosecution's exercise of its
peremptory strikes to remove males from serving on the petit
jury; and (12) appellate counsel failed to properly present on
appeal McCall's claim that he was denied a speedy trial.
11
In this case, McCall petitioned for postconviction relief
alleging 12 grounds of ineffective assistance of counsel.7
1070633
12
The trial court held an evidentiary hearing on the petition.
By holding that hearing, the trial court implicitly found that
the issues presented were "material issue[s] of law or fact
... which would entitle [McCall] to relief," Rule 32.7(d),
and, under Rule 32.9(d), the trial court therefore had a
responsibility to make findings of fact as to each of those
issues. Instead of issuing any such findings, however, the
trial court dismissed McCall's petition on the ground that his
"bare allegations" of prejudice were not sufficient to state
a claim of ineffective assistance of counsel. Although this
conclusion may have been an appropriate basis for a summary
dismissal of the petition before a hearing was held, once a
hearing has been held Rule 32.9(d) requires findings of fact
in support of the judgment. Under our decision in Ex parte
Grau, the trial court's failure to issue such findings is
grounds for reversal. Therefore, the Court of Criminal
Appeals' decision to affirm the trial court's judgment
conflicts with Ex parte Grau, and we reverse the Court of
Criminal Appeals' decision and remand the case to that court
for proceedings consistent with this opinion.
Conclusion
1070633
13
Because the trial court failed to issue findings of fact
in support of its judgment as required by Rule 32.9(d), Ala.
R. Crim. P., the Court of Criminal Appeals' decision affirming
its judgment is in conflict with Ex parte Grau. Therefore, we
reverse the Court of Criminal Appeals' judgment and remand the
case for further proceedings.
REVERSED AND REMANDED.
Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur.
Cobb, C.J., recuses herself. | November 7, 2008 |
d985d0b2-3dc6-427d-b042-a42fef1a2770 | Etole C. Furrow v. Gregory Helton | N/A | 1070667 | Alabama | Alabama Supreme Court | REL: 10/24/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070667
____________________
Etole C. Furrow
v.
Gregory Helton
Appeal from Mobile Probate Court
(No. 2006-2093)
SMITH, Justice.
Etole C. Furrow is the proponent of a will her mother,
Jewell B. Malone, executed in 2003. Gregory Helton is a
1070667
2
grandson of Malone who contested the 2003 will. After a trial
before the Mobile County Probate Court, a jury returned a
verdict in favor of Gregory, and Furrow appeals from a
judgment entered on that verdict. We reverse and remand.
Facts and Procedural History
Malone, a resident of Mobile County, had three daughters:
Furrow; Sarah C. Lott; and Dorothy June C. Helton, who was
Gregory's mother. Malone had grandchildren by each daughter.
Malone executed a will in 1995 devising her estate to her
three daughters in equal shares. If a daughter predeceased
Malone, that daughter's share under the 1995 will would pass
to the daughter's children per stirpes. The 1995 will named
Furrow as the executrix of Malone's estate; in the event
Furrow could not serve, Lott and Helton were to be co-
executrixes.
After a protracted illness, Malone's daughter Helton died
on November 30, 2003. Malone executed a new will on December
16, 2003, devising her estate equally between Furrow and Lott,
Malone's two remaining living daughters. The 2003 will made
no provision for any of Malone's grandchildren; instead, it
provided that if either Furrow or Lott preceded Malone in
1070667
3
death, the surviving daughter would receive Malone's entire
estate. The 2003 will named Furrow as the executrix or,
alternatively, Lott, if Furrow could not serve.
Malone died on June 20, 2006. Furrow sought to have the
2003 will probated in the Mobile County Probate Court, and
Gregory filed a will contest alleging, among other things,
that the 2003 will was the result of Furrow's undue influence.
The will contest was tried before a jury. Before the
matter was submitted to the jury at the conclusion of the
trial, the probate court entered a judgment as a matter of law
("JML") against Gregory on all claims except the claim
alleging that Furrow had exercised undue influence over Malone
regarding the 2003 will. The jury returned a verdict in
Gregory's favor on his claim of undue influence, and the
probate court entered a judgment on the verdict in favor of
Gregory and against the 2003 will. Furrow filed a renewed
motion for a JML under Rule 50(b), Ala. R. Civ. P., which the
trial court later denied. Furrow appealed to this Court. See
§ 12-22-21, Ala. Code 1975 (authorizing an appeal to this
Court from an order, judgment, or decree of the probate court
"on a contest as to the validity of a will").
1070667
4
Discussion
Furrow contends she was entitled to a JML as to
Gregory's claim that the 2003 will was the result of Furrow's
allegedly exercising undue influence over Malone.
"'When reviewing a ruling on a motion for a JML
[judgment as a matter of law], this Court uses the
same standard the trial court used initially in
deciding whether to grant or deny the motion for a
JML. Regarding questions of fact, the ultimate
question is whether the nonmovant has presented
sufficient evidence to allow the case to be
submitted to the jury for a factual resolution. The
nonmovant must have presented substantial evidence
in order to withstand a motion for a JML. 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. In reviewing a ruling on a
motion for a JML, 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. Regarding a question
of law, however, this Court indulges no presumption
of correctness as to the trial court's ruling.'"
City of Birmingham v. Brown, 969 So. 2d 910, 915 (Ala. 2007)
(quoting Waddell & Reed, Inc. v. United Investors Life Ins.
Co., 875 So. 2d 1143, 1152 (Ala. 2003)).
Gregory, as the contestant, had the burden at trial of
proving the elements of undue influence. Clifton v. Clifton,
529 So. 2d 980, 983 (Ala. 1988) ("It is well established that
the contestant who challenges a will on the basis of undue
1070667
5
influence bears the burden of proving such allegations."
(citing Kelly v. Donaldson, 456 So. 2d 30, 33 (Ala. 1984))).
As the proponent of the will, Furrow opposed Gregory's claim
of undue influence; therefore, the following is relevant to
our review of the trial court's denial of Furrow's motion for
a JML:
"JML in favor of a movant who does not assert
the claim or affirmative defense but who only
opposes it, and who therefore does not bear the
burden of proof, is appropriate in either of two
alternative cases. One is that the claim or
affirmative defense is invalid in legal theory. See
Harkins & Co. v. Lewis, 535 So. 2d 104 (Ala. 1988).
The other is that one or more contested essential
elements of the claim or affirmative defenses is
unsupported by substantial evidence. See Banks v.
Harbin, 500 So. 2d 1027 (Ala. 1986), and McKerley
[v. Etowah-DeKalb-Cherokee Mental Health Bd., Inc.,
686 So. 2d 1194 (Ala. Civ. App. 1996)]. If either
alternative be true, JML is appropriate. See
Harkins, supra, Banks, supra, and McKerley, supra.
If, however, the nonmovant's claim or affirmative
defense is valid in legal theory and is supported by
substantial evidence on every contested element, JML
is inappropriate irrespective of the presence or
weight of countervailing evidence. See Driver [v.
National Sec. Fire & Cas. Co., 658 So. 2d 390 (Ala.
1995)], and First Financial [Ins. Co. v. Tillery,
626 So. 2d 1252 (Ala. 1993)]."
Ex parte Helms, 873 So. 2d 1139, 1143-44 (Ala. 2003).
Furrow contends that the second scenario described in
Helms applies in the present case, i.e., "that one or more
1070667
6
contested essential elements of the claim or affirmative
defenses is unsupported by substantial evidence." 873 So. 2d
at 1143. Furrow argues that the burden of proof never shifted
to her and that the trial court erred in denying her motion
for a JML on the undue-influence claim. We agree.
As the contestant, Gregory was required to offer
substantial evidence showing
"(1)
that
a
confidential relationship existed
between a favored beneficiary and the testator; (2)
that the influence of or for the beneficiary was
dominant and controlling in that relationship; and
(3) that there was undue activity on the part of the
dominant party in procuring the execution of the
will."
Clifton, 529 So. 2d at 983 (citing Penn v. Jarrett, 447 So. 2d
723, 724 (Ala. 1984); Reed v. Walters, 396 So. 2d 83, 86 (Ala.
1981)). See also Hubbard v. Moseley, 261 Ala. 683, 686-87, 75
So. 2d 658, 661 (1954).
In the present case, Gregory failed to offer substantial
evidence suggesting that Furrow exercised a dominant or
controlling influence over Malone or that Furrow engaged in
undue activity in procuring the execution of the will. Thus,
Gregory failed to meet his burden of proof on at least two of
1070667
Because of our disposition of this appeal, we need not
1
decide the issue whether Furrow is a favored beneficiary.
7
the three elements of his undue-influence claim.1
The presumption is that the parent (Malone) was dominant
over the child (Furrow). Clifton, 529 So. 2d at 984 (citing
Nottage v. Jones, 388 So. 2d 923, 926 (Ala. 1980) (where the
party in a will contest alleged to have exerted undue
influence over the testatrix is the child of the testatrix, it
is ordinarily presumed that the parent is dominant over the
child)). Thus, Gregory had the burden of offering substantial
evidence to the contrary. Wilson v. Wehunt, 631 So. 2d 991,
993-94 (Ala. 1994). See also Clifton, 529 So. 2d at 983-84.
Gregory correctly notes that the issue of dominance may
be proved by circumstantial evidence. See Ex parte Helms, 873
So. 2d at 1148; Allen v. Sconyers, 669 So. 2d 113, 118 (Ala.
1995). However, the circumstantial evidence offered to show
dominance must nevertheless be substantial evidence. See,
e.g., Wilson, 631 So. 2d at 993-94. "Substantial evidence is
evidence of such weight and quality that fair-minded persons
in the exercise of impartial judgment can reasonably infer the
existence of the fact sought to be proved." West v. Founders
Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1070667
Specifically, Gregory testified that for approximately
2
two years before the 2003 will was executed, Malone was
"feeble." He testified that Malone would "hallucinate, see
things," and that "[s]he would repeat herself. She would tell
you one thing, five minutes later she would tell you the same
thing. You would sit there an hour and she would tell you the
story three or four times." Bubba testified that Malone was
"a very unstable woman" a week or so after June Helton's death
in November 2003 and was still "crying every day" about
Helton's death. Bubba testified that Malone said "off-the-
wall things" during that time.
Winfred, Sr., testified that
Malone would often repeat things.
In that regard, Bubba testified as follows:
3
"Q. As far as you know, based on your
observations, did anyone care for Ms. Malone during
the say two- or three-year period before your mother
passed on in 2003?
8
1989). See also § 12-21-12(d), Ala. Code 1975.
Gregory contends that "the jury accepted the testimony of
[Gregory], [Gregory's father, Winfred Helton, Sr.], and
[Gregory's brother, Winfred Helton, Jr. ('Bubba')], that
[Malone] was feeble, hallucinating, and vulnerable" around the
time she executed the 2003 will. Bubba testified that Malone
2
"probably took over 10 pills a day" in the two- to three-year
period before June Helton died in November 2003. He testified
that "on a few occasions" he saw her take the medication
Haldol, which he testified his ex-wife thought was for the
treatment of Alzheimer's disease.3
1070667
"A. My Aunt Sarah come down in the evening and
brought her supper.
"Q. Did anybody else go by there and care for
her?
"A. My mother and father.
"Q. Did you have the opportunity to go into your
grandmother's house on few or many occasions?
"A. Many occasions.
"Q. And while you were there, did you ever have
an opportunity to observe if she was--had any
medications sitting around there?
"A. Yes, sir. She probably took over 10 pills
a day.
"Q. And do you know if you ever saw the
prescriptions what those were for?
"A. The only prescription that I really
realized what--me and my ex-wife Dana was in there
looking to get her medicine ready for her one day
and it was Haldol and it stood out for her--her
grandmother had Alzheimer's and that's what the
medication was for.
"Q. I see, sir. Did you ever have an
opportunity to see your grandmother take the
medication?
"A. Yes, sir.
"Q. And on few or many occasions?
"A. Few occasions."
9
Gregory also argues that the jury rejected most of or all
1070667
10
Furrow's testimony because, he says, the jury found it lacking
in credibility. He contends that the jury's rejection of
Furrow's testimony and the jury's acceptance of his testimony
and the testimony of Winfred, Sr., and Bubba "was in and of
itself [substantial evidence from which] the jury could have
inferred [Furrow] was dominant in her exercise of a
confidential relationship at the time the contested will was
procured." Gregory contends, therefore, that the facts in the
present case present a jury question on the issue of undue
influence as did the facts in Ex parte Helms, supra, in which
this Court held that a summary judgment was improper on an
undue-influence claim. 873 So. 2d at 1148-49.
In Ex parte Helms, this Court found that the contestants
had presented substantial evidence of dominance and control
and undue activity in procuring the execution of the will
being contested. The testator in Ex parte Helms executed a
second will in 1997, approximately 12 days after her doctor
informed her that she was dying of cancer and "that [her]
family situation need[ed] to be put in order." The second
will "'practically disinherited all of the contestants and
left almost all her estate to the proponents.'" 873 So. 2d at
1070667
Lortab consists of "hydrocodone, a synthetic morphine-
4
like narcotic." 873 So. 2d at 1145.
11
1146 (quoting Morrow v. Helms, 873 So. 2d 1132, 1135 (Ala.
Civ. App. 2001)). Under the testator's prior will, the
contestants would have inherited "substantial property." 873
So. 2d at 1145.
The evidence showed that the testator in Ex parte Helms
was taking the medication Lortab for pain on a regular basis
4
both before and after the date of the execution of the second
will. 873 So. 2d at 1145, 1147-48. There was extensive
medical testimony regarding the side effects of Lortab;
specifically, there was testimony that Lortab alters the mind,
affects thinking, interferes with the ability to think
clearly, "makes a person 'sedated and confused,'" affects the
central nervous system, causes drowsiness, and can cause a
person "to lose the ability to know what he or she is doing."
873 So. 2d at 1146. Further, there was evidence suggesting
that the testator in Ex parte Helms experienced many of those
side effects.
This Court held that there was substantial evidence of
the proponents' dominance and control in
"[t]he evidence of the proponents' access to and
1070667
12
control over [the testator's] money and property,
their profiting from this access and control during
[the testator's] last two years of life and soon
after
[her]
death,
their
control
over
[her]
transportation, and their control, to some extent,
of access to [the testator] during the 16 critical
days culminating with the execution of the putative
second will."
873 So. 2d at 1148-49. Additionally, this Court in Ex parte
Helms held that the substantial evidence of the proponents'
undue activity in the procurement of the will included the
following:
--
During the last two years of the testator's life,
the proponents obtained joint ownership with right
of survivorship to certificates of deposit totaling
$215,743.95 in value;
--
One of the proponents opened a joint checking
account in the names of the testator and the
proponents with right of survivorship and deposited
only the testator's money in the account, and the
statements for the account were mailed only to the
address of one of the proponents;
--
Both proponents had a key and access to the
testator's safe-deposit box, although one of the
proponents
had denied during the will-contest
litigation that she had such access;
--
One of the proponents suggested the lawyer who
drafted the second will, and that lawyer was not the
same lawyer who drafted the testator's first will;
--
During the weeks preceding her death, the testator
was dependent on the proponents for all of her
transportation, and one of the proponents must have
driven her to the lawyer's office to execute the
1070667
13
second will; and
--
"[B]oth proponents falsely denied any knowledge of
the second will."
873 So. 2d at 1145-46, 1148-49.
Furrow contends, however, that the facts here are more
analogous to Wilson, supra, in which this Court examined a
claim that a son had exerted undue influence over his mother
in procuring a deed conveying property to the son. In Wilson,
the son who was alleged to have exerted undue influence argued
to this Court that the grandchildren seeking to cancel the
deed had not offered sufficient evidence showing that he had
exercised dominance over his mother. 631 So. 2d at 995. In
agreeing with the son, this Court considered the evidence that
the son had provided his mother with financial assistance and
assistance
in
handling
her
affairs,
had
provided
transportation, had assisted her in writing her checks, and
had arranged to have the deed in question prepared and her
signature notarized. 631 So. 2d at 994. This Court concluded
that "evidence of this nature, without more, is simply not
sufficient to justify a finding of subservience on the part of
the parent, so as to create a legal presumption of undue
influence." 631 So. 2d at 994. As to the proof necessary to
1070667
14
overcome the presumption that a parent is dominant over a
child, this Court stated:
"It is well settled that one alleging dominance of
a child over a parent must prove that 'time and
circumstances have reversed the order of nature, so
that the dominion of the parent has not merely
ceased, but has been displaced, by subservience to
the child.' Hawthorne v. Jenkins, 182 Ala. 255,
260, 62 So. 505, 506 (1913) (emphasis in original).
'Subservient' is defined in The American Heritage
Dictionary of the English Language (1969) as
'[u]seful as a means or instrument; serving to
promote some end ...[; s]ubordinate in capacity or
function.' Black's Law Dictionary 486 (6th ed.
1990) defines 'dominate' as '[t]o master, to rule,
or to control.' Thus, for the burden of proof to
shift, it is clear that our cases require proof of
more than a reversal of the traditional roles of
parent as care giver and child as care recipient;
they require proof that the parent's will has become
subordinate to the will of the child. It is also
clear from our cases that the mere relationship of
parent and child alone, even when coupled with some
activity on the part of the child in securing the
preparation of legal papers for the parent, is not
sufficient to prove subservience on the part of the
parent, so as to shift to the child the burden of
proving an absence of undue influence. See, e.g.,
Keeble v. Underwood, 193 Ala. 582, 586-87, 69 So.
473, 475 (1915), a will contest case wherein this
Court noted:
"'It is now well settled that where a
donee occupies to the donor a position of
trust and confidence, such as that between
a beneficiary occupying a confidential
relation and the testatrix, and such donee
or beneficiary takes part or exercises some
activity in the preparation or in the
procurement of the execution of the will,
1070667
15
the burden of proof is shifted to the
beneficiary to show that the contested
instrument was not superinduced by undue
influence. Scarbrough v. Scarbrough, 185
Ala. 468, 64 So. 105 [1913]; Bancroft v.
Otis, 91 Ala. 279, 8 So. 286, 24 Am. St.
Rep. 904 [1890]. This is the general rule.
However, while the relationship of parent
and child is per se confidential, yet it is
well settled that it is always presumed
prima facie that in all transactions
between them the parent is the dominant
party and that such are free from undue
influence. The mere relationship alone,
coupled with activity on the part of the
child in securing the preparation of the
will,
is
not
sufficient,
under
the
authorities, to shift the burden of proof
upon the child in cases of gift by the
parent, as we hold that, prima facie, the
parent is the dominant spirit in the
transaction, and gifts flow naturally from
parent to child. One of the foundations of
the rule as to presumption of undue
influence is the theory that the donor is
the weaker party. While the relation of
parent and child is per se confidential,
yet in view of the presumption, recognized
in this state and abundantly supported by
authorities elsewhere, that the parent is
the dominant spirit, the burden of proof is
not
shifted
upon
the
mere
proof
of
relationship and activity, on the part of
the beneficiary child, in the preparation
of the will....'
"(Emphasis added.) See, also, Bain v. Bain, 150
Ala. 453, 43 So. 562 (1907) (an action to set aside
conveyances from a father to the wife of one of his
sons and his son's children)."
1070667
Gregory contends that Wilson is distinguishable because
5
it involved an action to cancel a deed rather than a will
contest; Gregory asserts that the principles governing the
"legal shifting of the burden" in an action seeking to set
aside an inter vivos transfer "is distinct from wills." We
disagree that Wilson is distinguishable on that basis. Many
of the authorities cited in Wilson as to the claim of undue
influence involved claims of undue influence in the actions
contesting wills. See, e.g., Wilson, 631 So. 2d at 992-94
(citing and quoting extensively from Chandler v. Chandler, 514
So. 2d 1307 (Ala. 1987), and Keeble v. Underwood, 193 Ala.
582, 69 So. 473 (1915), both of which involved will contests).
16
631 So. 2d at 993-94.5
In the present case, there was evidence indicating that
Malone's relatives--including Furrow, June Helton, Lott,
Gregory, and Gregory's wife--would drive her places, help her
into her bath, bring her meals, and write checks on her
behalf. However, there is no evidence indicating that Furrow
in particular assumed a dominant role over Malone or that she
denied others access to her.
Furrow testified that she drove Malone to the office of
the attorney who drafted the 2003 will, and Gregory cites
evidence suggesting that Furrow was present in the same room
along with two witnesses and a notary when Malone executed the
2003 will. Gregory also cites evidence suggesting that when
June Helton died, Furrow and Lott were angered by the listing
in Helton's obituary of one "Jimbo Lambert" as Helton's
1070667
17
stepson even though Lambert apparently was not related to
Helton or to Malone by marriage or otherwise. Bubba testified
that Furrow told him Malone "was very upset that Jimbo Lambert
was in the obituary" and "that we probably get [sic] the last
thing we would ever get from my grandmother," and that
evidence suggests Furrow's displeasure with the reference to
Lambert in the obituary may have prompted her to talk to
Malone about executing a new will. Further, Gregory cites
Bubba's testimony that Furrow "is a woman that had a lot of
influence over" Malone, and he contends that the jury could
have reasonably inferred that Furrow used that alleged
influence unduly during the time she was at Malone's house
before the 2003 will was executed. We disagree.
Unlike the evidence in Ex parte Helms, there is no
evidence in the present case that Furrow profited from Malone
during the time leading up to Malone's death or that she
exercised exclusive control over Malone and denied others
access to her during the time leading up to the execution of
the 2003 will. Moreover, the lawyer who drafted the 2003 will
for Malone was the same lawyer who had drafted her first will,
unlike the situation in Ex parte Helms, and the attorney who
1070667
18
drafted Malone's 2003 will testified that he met with Malone
a week before she executed the 2003 will. Specifically, the
attorney testified that Malone met with him privately and told
him that she wanted to execute a will containing the terms
ultimately included in the 2003 will.
Further, the witnesses to the 2003 will and the
individual who notarized the 2003 will testified at trial, and
those individuals testified uniformly that Malone did not
exhibit signs of mental slowness when she executed the 2003
will, that she appeared to be of a sound mind, that she knew
the extent of her bounty and her wishes in disposing of it,
and that she claimed to be acting freely and voluntarily in
signing the 2003 will. Although Bubba testified that Malone
"probably took over 10 pills a day," including Haldol, there
was no evidence as to the possible side effects of those
medications or evidence indicating that Malone had taken any
of those medications on the day she executed the 2003 will.
Finally, unlike the testator in Ex parte Helms, there was no
evidence indicating that Malone was dependent on Furrow for
all of her transportation in the time leading up to the
execution of the 2003 will or immediately thereafter.
1070667
19
The undisputed evidence at trial showed that during the
last 10 years or so of Malone's life, Furrow, who has lived in
Louisiana for more than 30 years, visited Malone "three to
four times every two months." Furrow testified that she
sometimes would come more often--"[i]t might be for 10 or 12
days." Again, however, there was no evidence at trial
indicating that Furrow ever exercised any degree of dominance
or control over Malone during those visits or that Furrow
denied others access to her during those visits. Furrow's
visits to her mother, her driving Malone to the lawyer's
office to execute the 2003 will, and her possibly sitting in
the room in which the will was executed are no more dominating
or controlling than were the actions of the son in Wilson,
supra, which this Court held as a matter of law did not
constitute substantial evidence of dominance or control.
Likewise, Furrow's actions in the present case are not
analogous to the actions described in the following summary by
the Wilson Court of cases illustrating
dominating or
controlling behavior:
"[S]ee Haginas v. Haginas, 598 So. 2d 1334 (Ala.
1992) (involving an elderly woman, confined to a
nursing home, who was pressured by her son over a
period of several years to execute a deed, the son
1070667
20
threatening to stop his visits if she did not sign);
Brothers v. Moore, 349 So. 2d 1107 (Ala. 1977)
(involving an elderly woman who could not read or
write and whose son had taken over all of her
business affairs); Gosa v. Willis, 341 So. 2d 699
(Ala. 1977) (involving an elderly couple who had
exhibited signs of mental feebleness, had little
education, and whose former son-in-law had duped
them into believing that the conveyance of their
property to him would resolve a 'tax problem');
Jackson v. Rodda, 291 Ala. 569, 285 So. 2d 77 (1973)
(involving a man who had suffered a nervous
breakdown after his wife was accidentally killed and
whose daughter not only had looked after him and
advised him in his personal affairs, but also had
'insisted' that he convey his property to her and
had promised to 'do the right thing by the other
children,' and then refused to reconvey the property
to her father at his request); Orton v. Gay, 285
Ala. 270, 231 So. 2d 305 (1970) (involving an
elderly woman who, shortly after the death of her
husband, conveyed her real property and turned over
significant holdings of personal property to her
daughter, who clearly had manipulated her so as to
obtain her property); and Jones v. Boothe, 270 Ala.
420, 119 So. 2d 203 (1960) (involving an elderly
couple who had conveyed their property to their
daughter shortly before the death of the father,
under circumstances clearly indicating that the
daughter had secretly lied to and pressured the
couple in an attempt to avoid the operation of the
father's will). We find it significant that in each
of the last four cases mentioned above at least one
of the grantors was alive at the time of the trial
and testified directly with respect to the question
of dominance. In the first case cited, Haginas v.
Haginas, the grantor was coerced into executing the
deed by repeated threats on the part of her son that
he would not visit her in the nursing home if she
did not cooperate with him, and in the second case,
Brothers v. Moore, the evidence indicated that the
grantor was illiterate, in addition to being totally
1070667
Effective June 11, 1987, the scintilla rule was abolished
6
in favor of the substantial-evidence rule. See § 12-21-12,
Ala. Code 1975.
21
dependent on her son to handle her business affairs.
These
cases,
we
think,
are
materially
distinguishable from the present case."
Wilson, 631 So. 2d at 994-95.
In Hall v. Hall, 502 So. 2d 712, 714 (Ala. 1987), this
Court stated that "there must be active interference [by the
dominant party] in procuring the execution of the will, and
such interference must go beyond compliance with the voluntary
directors of the testator." In Hall, the testator executed a
will making his second wife, Theresa, the sole beneficiary of
his estate; the will made no provision for his three adult
children from his first marriage. One of those children
contested the will, alleging that Theresa had exerted undue
influence. This Court held that there was not a scintilla of
evidence indicating that Theresa had exercised dominance over
the testator or actively interfered in procuring the execution
of the will. 502 So. at 713-14. This Court stated:
6
"This Court has consistently held that the fact
that a person is a favored beneficiary and is in a
confidential relationship with the testator does not
alone raise a presumption that the will was executed
by undue influence. Arrington v. Working Woman's
Home, [368 So. 2d 851 (Ala. 1979)], Kahalley v.
1070667
22
Kahalley, 248 Ala. 624, 28 So. 2d 792 (1947);
Lockridge v. Brown, 184 Ala. 106, 63 So. 524 (1913).
In addition to the confidential relationship, there
must be active interference in procuring the
execution of the will, and such interference must go
beyond compliance with the voluntary directions of
the testator. Arrington v. Working Woman's Home,
supra.
"In Arrington v. Working Woman's Home, supra,
this Court stated:
"'The scintilla rule is not satisfied
by
speculation.
[Citation
omitted.]
Moreover,
evidence
to
support
undue
influence
must
provide
at
least
a
reasonable inference, rather than mere
suspicion. [Citation omitted.]'
"The affidavits submitted by the contestant do
not provide any facts which show undue activity on
the part of Theresa in procuring the execution of
Floyd
Sr.'s
will.
The
affidavits
state
in
conclusory fashion that Theresa was the dominant
person in the marriage. These statements appear to
be based upon speculation or suspicions of the
affiants. There is no evidence that the will was
the result of anything other than the strong bond of
love and affection between Theresa and Floyd."
502 So. 2d at 714.
In the present case, Gregory did not present substantial
evidence indicating that Furrow unduly influenced Malone or
that she caused Malone to do something Malone did not
independently want to do. The evidence does not suggest that
Malone ever went "beyond compliance with the voluntary
1070667
Because there was not substantial evidence showing that
7
Furrow dominated or controlled Malone or otherwise unduly
influenced the making and execution of the 2003 will, we
pretermit consideration of Furrow's argument that she was not
a favored beneficiary under the 2003 will.
23
directions of the testator." Hall, 502 So. 2d at 714.
Consequently, under Wilson, supra, and Hall, supra, Gregory
did not present substantial evidence of undue influence, and
the trial court erred in denying Furrow's motion for a JML on
the undue-influence claim.7
Conclusion
The trial court's judgment is reversed, and the cause is
remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and See, Woodall, and Parker, JJ., concur. | October 24, 2008 |
6a2749f6-e50d-4f07-9082-c9f5dd16e734 | Ex parte Hensel Phelps Construction Company. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Thomas Childers v. Carter-Burgess, Inc., et al.) | N/A | 1070877 | Alabama | Alabama Supreme Court | REL: 10/17/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070877
____________________
Ex parte Hensel Phelps Construction Company
PETITION FOR WRIT OF MANDAMUS
(In re: Thomas Childers
v.
Carter-Burgess, Inc., et al.)
(Pike Circuit Court, CV-05-301)
MURDOCK, Justice.
Hensel Phelps Construction Company ("Hensel Phelps")
petitions this Court for a writ of mandamus directing the
1070877
2
trial court to vacate its February 14, 2008, order denying
Hensel Phelps's motion to dismiss Thomas Childers's claim
against it and to enter a dismissal in its favor. We grant
the petition and issue the writ.
Facts and Procedural History
On October 28, 2003, while acting within the line and
scope of his employment with Wal-Mart Stores, Inc., Childers
injured his leg when he fell while performing maintenance on
the roof of the Wal-Mart distribution-center building in Pike
County. Childers filed a complaint on October 27, 2005, one
day before the expiration of the statute of limitations,
against
Carter-Burgess,
Inc.
("Carter-Burgess"),
Nixon
&
Laird
Architects/Engineers, P.C. ("Nixon & Laird"), his supervisor
at Wal-Mart, Charles Murray, and several fictitiously named
defendants allegedly "responsible for constructing, building
and/or maintaining the premises in question, including the
stairwell-hatch-area, where the accident which is the subject
of this case occurred." The complaint stated with regard to
the fictitiously named defendants that their "true and correct
names are unknown at present but will be added by amendment
when ascertained."
1070877
Childers states that, at that time, Nixon & Laird was a
1
subsidiary of Carter-Burgess.
3
The summons and complaint were mailed to the location
Childers believed to be the principal address of Carter-
Burgess and Nixon & Laird on October 27, 2005. Childers did
1
not serve any discovery with the summons and complaint.
Childers's counsel claims that the Pike County circuit clerk
informed him on November 3, 2005, that service had been
perfected on Nixon & Laird, and that on November 7, 2005, the
clerk's office informed him that service had been perfected on
Carter-Burgess. The service copies of the summons and
complaint intended for Nixon & Laird and for Carter-Burgess,
however, were returned as undeliverable on November 15, 2005.
Murray was served, and on November 28, 2005, he filed a
motion to dismiss the claims against him. The motion was set
for a hearing several times; Hensel Phelps alleges —— and
Childers does not dispute —— that each time the hearing date
neared, Childers requested that it be postponed to allow for
service of Carter-Burgess and Nixon & Laird. Childers's
counsel contends that he made numerous attempts to serve both
Nixon & Laird and Carter-Burgess, but that, at the time,
Carter-Burgess
maintained
approximately
40
locations
1070877
4
nationwide, making service difficult. Wal-Mart Stores, Inc.,
moved to intervene on February 23, 2006, and the trial court
granted Wal-Mart's motion on February 27, 2006.
On July 5, 2006, Childers served The Corporation Company,
the registered agent for Carter-Burgess. On August 3, 2006,
Carter-Burgess and Nixon & Laird filed a motion to dismiss the
claims against them, alleging that Childers failed to serve
them in a timely manner. Following a January 9, 2007,
hearing, the trial court denied the motion, provided that
Childers perfect service on Nixon & Laird within 30 days.
Service was perfected on Nixon & Laird on February 5, 2007.
Childers's counsel avers that, once service was perfected on
Nixon & Laird, he began talking with Carter-Burgess's
attorneys about the identities of other possible entities
involved with the construction of the Pike County Wal-Mart
distribution-center building, and that in these conversations
Hensel Phelps's name was mentioned for the first time.
On February 6, 2007, Carter-Burgess and Nixon & Laird
filed a notice to serve discovery on Childers, Murray, and
intervenor Wal-Mart. On March 9, 2007, counsel for Carter-
Burgess wrote Childers's counsel and Wal-Mart's counsel to
1070877
5
alert them that their clients were overdue in responding to
Carter-Burgess's discovery motion. Carter-Burgess filed a
motion to compel discovery against Childers on March 22, 2007.
The trial court granted this motion on May 8, 2007, ordering
Childers to respond within 30 days. Childers responded to the
Carter-Burgess discovery request on June 7, 2007. On May 10,
2007, Carter-Burgess filed a notice of intent to serve
subpoena on nonparties, including Hensel Phelps. On June 6,
2007, Carter-Burgess served a nonparty subpoena on Hensel
Phelps.
On September 13, 2007, 23 months after the filing of the
original complaint, Childers filed an amended complaint that
added Hensel Phelps as a defendant, asserting a claim of
negligence and/or wantonness against all the defendants named
in the amended complaint. It is undisputed that Childers
never filed any formal discovery before filing the amended
complaint.
Hensel Phelps filed its motion to dismiss on October 31,
2007, asking the trial court to dismiss the claim against it
on the ground that the statute of limitations had expired with
regard to any claims against it. Childers did not file a
1070877
6
response to the motion to dismiss. On February 14, 2008, the
trial court denied Hensel Phelps's motion to dismiss, stating,
in pertinent part: "[T]he Court having reviewed and considered
the [motion to dismiss], the supporting brief, and argument of
counsel, and not being persuaded that [Hensel Phelps] is
entitled to the requested relief, it is ... ORDERED AND
ADJUDGED that the above referred to motion to dismiss is
denied." (Capitalization in original.) Hensel Phelps
subsequently filed this petition for a writ of mandamus.
Standard of Review
"'"A
writ
of
mandamus
is
an
extraordinary remedy, and it 'will be
issued only when there is: 1) a clear legal
right in the petitioner to the order
sought; 2) an imperative duty upon the
respondent to perform, accompanied by a
refusal to do so; 3) the lack of another
adequate remedy; and 4) properly invoked
jurisdiction of the court.'"'
"Ex parte Monsanto Co., 862 So. 2d 595, 604 (Ala.
2003) .... A writ of mandamus is the proper means by
which to seek review of a denial of a motion to
dismiss filed by a party originally listed as a
fictitiously named defendant 'when "the undisputed
evidence shows that the plaintiff failed to act with
due diligence in identifying the fictitiously named
defendant as the party the plaintiff intended to
sue."' Ex parte Chemical Lime of Alabama, Inc., 916
So. 2d 594, 596-97 (Ala. 2005) (quoting Ex parte
Snow, 764 So. 2d 531, 537 (Ala.1999))...."
1070877
7
Ex parte Nationwide Ins. Co., [Ms. 1061708, April 18, 2008]
___ So. 2d ___, ___ (Ala. 2008).
Analysis
The question presented is whether the trial court
exceeded its discretion in denying Hensel Phelps's motion to
dismiss, in essence determining that Childers's substitution
of Hensel Phelps for one of the fictitiously named defendants
in the amended complaint of September 13, 2007, relates back
to the filing of the original complaint of October 27, 2005.
This Court has previously stated that Rule 9(h) and Rule
15(c)(4), Ala. R. Civ. P., "'allow a plaintiff to avoid the
bar of a statute of limitations by fictitiously naming
defendants
for
which
actual
parties
can
later
be
substituted.'" Ex parte Chemical Lime of Alabama, Inc., 916
So. 2d 594, 597 (Ala. 2005) (quoting Fulmer v. Clark Equip.
Co., 654 So. 2d 45, 46 (Ala. 1995)). Rule 9(h), Ala. R. Civ.
P., provides:
"When a party is ignorant of the name of an opposing
party and so alleges in the party's pleading, the
opposing party may be designated by any name, and
when that party's true name is discovered, the
process and all pleadings and proceedings in the
action may be amended by substituting the true
name."
1070877
8
Rule 15(c)(4), Ala. R. Civ. P., provides that "[a]n amendment
of a pleading relates back to the date of the original
pleading when ... relation back is permitted by principles
applicable to fictitious party practice pursuant to Rule 9(h),
Ala. R. Civ. P."
In order to invoke the relation-back principle of Rule
15(c) in regard to fictitious-party practice under Rule 9(h),
a plaintiff
"(1) must state a cause of action against the party
named fictitiously in the body of the original
complaint and (2) must be ignorant of the identity
of the fictitiously named party, in the sense of
having no knowledge at the time of the filing that
the later-named party was in fact the party intended
to be sued."
Crawford v. Sundback, 678 So. 2d 1057, 1059 (Ala. 1996).
"A plaintiff is ignorant of the identity of a
fictitiously named defendant when, after exercising
due diligence to ascertain the identity of the party
intended to be sued, he lacks knowledge at the time
of the filing of the complaint of facts indicating
to him that the substituted party was the party
intended to be sued. Likewise, to invoke the
relation-back principle of Rule 15(c), a plaintiff,
after filing suit, must proceed in a reasonably
diligent manner to determine the true identity of a
fictitiously named defendant and to amend his
complaint accordingly."
Ex parte FMC Corp., 599 So. 2d 592, 593-94 (Ala. 1992)
(emphasis added). Thus, it is incumbent upon the plaintiff to
1070877
9
exercise due diligence to determine the true identity of
defendants both before and after filing the original
complaint. It is also incumbent upon the plaintiff to
"substitute the named defendant for the fictitious party
within a reasonable time after determining the defendant's
true identity," and "'the same policy considerations which
require a plaintiff to amend his complaint within a reasonable
time after learning the defendant's true identity also require
the plaintiff to proceed in a reasonably diligent manner in
determining the true identity of the defendant.'" Crawford,
678 So. 2d at 1060 (quoting Kinard v. C.A. Kelly & Co., 468
So. 2d 133, 135 (Ala. 1985) (emphasis added)).
Hensel Phelps contends that the evidence is undisputed
that Childers did not exercise due diligence in attempting to
ascertain its true identity and that Childers did not amend
his complaint within a reasonable time after determining
Hensel Phelps's true identity. For his part, Childers
contends that it is "very much in dispute" whether he "did
nothing to ascertain the names of fictitiously named parties."
He
argues
that
"[f]ormal
discovery
is
not
the
only
investigative means by which to determine the identity of a
1070877
10
party" and that Hensel Phelps "cannot know what steps were
taken ... to determine the identity of the fictitiously named
parties." (Childers's brief at 6.)
In making this argument, Childers lowers the standard for
ascertaining the true identity of a fictitiously named
defendant from "due diligence" to doing "something." He
attempts to force Hensel Phelps into the impossible position
of proving a negative: demonstrating that Childers did
absolutely nothing to obtain the company's true identity when
a defendant's knowledge of a plaintiff's activity is
necessarily limited to evidence in the record.
The facts before us show that 23 months elapsed between
the filing of the original complaint and the filing of the
amended complaint that named Hensel Phelps as a defendant.
For all that appears from the materials before us and from the
briefs of the parties, during this 23 months, Childers
conducted little, if any, informal discovery in an effort to
determine the identity of Hensel Phelps as one of the
fictitiously named defendants. In that period, Childers also
failed to conduct any formal discovery for the purpose of
ascertaining the true identities of the fictitiously named
1070877
Childers's only defense to this lack of filing discovery
2
is the length of time it took him to properly serve Carter-
Burgess and Nixon & Laird. The facts show, however, that
Childers must shoulder a large part of the blame for the
significant delay in perfecting service on these entities.
11
defendants. Although it is true that formal discovery is not
2
the only method of determining the identity of a fictitiously
named defendant, it commonly is vital to demonstrating due
diligence because it provides objective evidence of the
plaintiff's case activity. Furthermore, Childers did not
amend his complaint and specifically name Hensel Phelps as a
defendant until seven months after he discovered its identity
and over three months after Carter-Burgess filed a nonparty
subpoena on Hensel Phelps.
"The recalcitrant plaintiff cannot ... use the [relation-
back] rule to gain what might otherwise amount to an
open-ended statute of limitations." Kinard, 468 So. 2d at
135. This Court has determined on numerous occasions that
case activity similar to or even greater than Childers's
demonstrated activity in this case constituted a lack of due
diligence on the part of the plaintiff. See, e.g., Crowl v.
Kayo Oil Co., 848 So. 2d 930 (Ala. 2002) (finding that
plaintiff's failure to do anything for over a year and a half
1070877
12
to ascertain the identity of the defendant constituted a lack
of due diligence); Jones v. Resorcon, Inc., 604 So. 2d 370
(Ala. 1992) (finding lack of due diligence in determining the
identity of a fictitiously named manufacturer of a fan when
plaintiff failed to seek an order from the court compelling
inspection of the fan at issue); Ex parte Klemawesch, 549 So.
2d 62 (Ala. 1989) (concluding that plaintiff did not act with
due diligence when she did not initiate any discovery until
over two years after filing the original complaint); and Bowen
v. Cummings, 517 So. 2d 617 (Ala. 1987) (holding that
plaintiff failed to comply with the spirit or letter of Rule
9(h) and Rule 15(c)(4), Ala. R. Civ. P., when he made no
effort to ascertain the identity of fictitiously named
defendant doctor).
In short, "[f]ictitious party practice ... was not
intended for use whenever it is merely inconvenient for the
plaintiff to learn the name of the true defendant." Bowen,
517 So. 2d at 618. Childers plainly failed to comply with the
rules governing fictitious-party practice in his overall delay
in ascertaining Hensel Phelps's identity and in waiting seven
months after obtaining knowledge of the identity of Hensel
1070877
13
Phelps as a defendant to amend his complaint. Accordingly,
the petition for the writ of mandamus is granted. The trial
court is directed to vacate its order denying Hensel Phelps's
motion to dismiss and to enter a dismissal for Hensel Phelps
on Childers's claim against it.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur. | October 17, 2008 |
75e014e9-41d9-4e75-b621-b0dde2a279b5 | Ex parte Ronald Slater Doucette. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Ronald Slater Doucette v. State of Alabama) | N/A | 1071664 | Alabama | Alabama Supreme Court | rel: 11/26/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071664
_________________________
Ex parte Ronald Slater Doucette
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Ronald Slater Doucette
v.
State of Alabama)
(Jefferson Circuit Court, Bessemer Division, CC-06-73;
Court of Criminal Appeals, CR-06-1712)
COBB, Chief Justice.
The petition for the writ of certiorari is denied.
1071664
2
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of
Criminal Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782,
280 So. 2d 155 (1973).
WRIT DENIED.
See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock,
JJ., concur.
Lyons, J., dissents. | November 26, 2008 |
2f53593f-8757-4356-82ce-e2a9a7919366 | Ex parte N.J.J. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: N.J.J. v. Wesfam Restaurants, Inc., d/b/a Burger King) | N/A | 1070173 | Alabama | Alabama Supreme Court | REL:10/24/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070173
____________________
Ex parte N.J.J.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: N.J.J.
v.
Wesfam Restaurants, Inc., d/b/a Burger King)
(Madison Circuit Court, CV-05-1732;
Court of Civil Appeals, 2060444)
PER CURIAM.
N.J.J. filed a complaint in the Madison Circuit Court,
seeking
worker's
compensation
benefits
from
Wesfam
1070173
2
Restaurants, Inc., d/b/a Burger King ("Burger King"). After
a nonjury trial, the trial court found that N.J.J. had not
sustained a compensable injury under § 25-5-1(9), Ala. Code
1975, because, it reasoned, her injuries were caused by the
acts of third parties who intended to injure her for reasons
personal to her and not directed against her as an employee or
because of her employment. Specifically, the trial court
found that the attack as a result of which N.J.J. was injured
was racially motivated. N.J.J. appealed. The Court of Civil
Appeals affirmed the trial court's judgment, without an
opinion. N.J.J. v. Wesfam Rests., Inc. (No. 2060444, October
12, 2007), So. 2d (Ala. Civ. App. 2007)(table). This
Court granted certiorari review and held oral argument.
However, after reviewing the record and the briefs of the
parties, we now quash the writ.
N.J.J. worked for Burger King for 19 years. She was a
restaurant manager for 10 of those 19 years. During the early
morning of August 11, 2002, N.J.J. was assaulted while
attempting to unlock the Burger King restaurant on Memorial
Parkway in Huntsville. N.J.J. was grabbed by two white males
who pulled her behind the Burger King building. The two men
1070173
3
physically and sexually assaulted N.J.J. A third man acted as
a lookout during the assault. After she was discovered,
N.J.J. was transported by ambulance to Huntsville Hospital,
where she was treated for multiple injuries sustained during
the attack, including abrasions and lacerations to her body,
face, and genitals.
N.J.J. testified that, during the attack, the attackers
repeatedly stated: "We'll show you what we do to nigger
lovers." N.J.J., who is white, testified that shortly before
the attack she had banned the man who acted as the lookout
from the Burger King restaurant for setting a napkin holder on
fire. N.J.J. testified that before the attack she had never
seen the two men who attacked her. N.J.J. identified D.S. as
the man who had acted as the lookout. N.J.J. testified that,
during the attack, D.S. did not make any statements regarding
his earlier ejection from the Burger King restaurant. No
evidence was presented of any statements made during the
attack that would indicate that the attack was related to
N.J.J.'s employment. N.J.J. testified that D.S. asked the two
attackers, who were burning her with a cigarette, not to do so
and ultimately asked the two attackers to leave.
1070173
The polygraph results were admitted as part of the
1
evidence in this worker's compensation case.
4
Records from the Huntsville Police Department contain the
results of a polygraph test administered to D.S. as part of
the investigation of the attack. During the polygraph test,
D.S. was asked whether he was present when N.J.J. was
assaulted and whether he participated in any manner in the
assault. He answered in the negative to both questions, and
the test did not indicate any deception.1
The
standard
of
review
on
appeal
in
a
worker's
compensation case is well settled:
"'[W]e will not reverse the trial court's
finding
of
fact
if
that
finding
is
supported by substantial evidence--if that
finding is supported by "evidence of such
weight and quality that fair-minded persons
in the exercise of impartial judgment can
reasonably infer the existence of the fact
sought to be proved."'
"Ex parte Trinity Indus., Inc., 680 So. 2d 262, 268-
69 (Ala. 1996) (quoting West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989)). However, 'an appellate court's review of the
proof and [its] consideration of other legal issues
in a workers' compensation case shall be without a
presumption of correctness.' Ex parte American
Color Graphics, Inc., 838 So. 2d 385, 387-88 (Ala.
2002) (citing § 25-5-81(e)(1), Ala.Code 1975))."
1070173
5
Ex parte Southern Energy Homes, Inc., 873 So. 2d 1116, 1121
(Ala. 2003).
The Alabama Workers' Compensation Act, § 25-5-1 et seq.,
Ala. Code 1975, is intended to make workers' compensation the
exclusive remedy for most job-related injuries. The Act
excludes from its provisions an injury caused by the act of a
third party who intends to injure the employee because of
reasons personal to the employee and not directed against him
or her as an employee or because of his or her employment or
where the attack had no relationship to the employment. § 25-
5-1(9), Ala. Code 1975; see also Jacobs v. Bowden Elec. Co.,
601 So. 2d 1021 (Ala. Civ. App. 1992). In other words, an
employee's injury caused by the willful act of a third person
arises out the employment and is compensable under the
Workers' Compensation Act only if the willful act was directed
against the employee because of his or her employment, and
this requirement is met if there is a causal connection
between the conditions under which the work is required to be
performed and the resulting injury.
In Dean v. Stockham Pipe & Fittings Co., 220 Ala. 25, 123
So. 225 (1929), this Court analyzed § 36(j) of the Workmen's
1070173
6
Compensation Act in effect at that time. That subdivision was
very similar to § 25-5-1(9), Ala. Code 1975. Under § 36(j),
an injury was not compensable if it was "'caused by the act of
a third person or fellow employee, intended to injure the
employee because of reasons personal to him, and not directed
against him as an employee, or because of his employment.'"
220 Ala. at 27, 123 So. at 226. Similarly, § 25-5-1(9),
provides, in pertinent part:
"Injury does not include an injury caused by the act
of a third person or fellow employee intended to
injure the employee because of reasons personal to
him or her and not directed against him or her as an
employee or because of his or her employment."
In Dean, a night watchman was robbed and murdered while
he was on duty. The trial court denied compensation to the
watchman's widow, holding that the sole motive of the murder
was to rob the night watchman of his personal belongings.
This Court reversed the judgment of the trial court and held
that determining the motive for the injury did not end the
inquiry. This Court held that the night watchman's injury was
compensable, although the attacker had no motive to injure the
employer, because the peculiar hazards of being a night
watchman not only furnished the occasion and opportunity for
1070173
7
the robbery and the murder, but also suggested the opportunity
for robbery; thus, the Court reasoned, his employment
contributed to the injury. This Court specifically found a
causal connection between the type of employment and the
robbery/murder.
In the present case, substantial evidence supports the
trial court's factual finding that the assault was not
directed against N.J.J. because of her employment but was
instead instigated by racial motives. Among other things, the
trial court's finding is supported by the fact that racial
slurs were directed at N.J.J. during the attack and by the
lack of any statements made during the attack that would
indicate that the attack was related to N.J.J.'s employment.
The facts that a restaurant manager is periodically required
to unlock a restaurant in the early morning hours and that the
manager might be forced to confront a customer at the
restaurant as part of his or her duties are not peculiar
hazards that would suggest an unusually high opportunity for
the manager to be the victim of a sexual assault in contrast
to the robbery and murder of the night watchman in Dean.
Where the criminal act is accomplished for reasons personal to
1070173
Although Justice Bolin did not sit for oral argument of
2
this case, he has viewed the video recording of that oral
argument.
8
the victim, though the employment may give the assailant a
convenient opportunity for committing the crime, the injury
does not arise out the employment within the meaning of the
Workers' Compensation Act. Here, the fact that N.J.J. had to
open the store in the early morning hours gave the assailants
the opportunity to surprise N.J.J. when she was alone and to
commit this grotesque assault, but the trial court's finding
that the assailants acted for personal reasons is supported by
the evidence, including the racial slurs.
WRIT QUASHED.
See, Lyons, Stuart, Bolin, and Parker, JJ., concur.
2
Smith, J., concurs in the rationale in part and concurs
in the result.
Woodall and Murdock, JJ., concur in the result.
Cobb, C.J., dissents.
1070173
9
SMITH, Justice (concurring in the rationale in part and
concurring in the result).
I concur with the main opinion's holding that the trial
court's factual findings are not due to be disturbed.
In this worker's compensation case the employee, N.J.J.,
seeks worker's compensation benefits as a result of injuries
sustained in a sexual assault that occurred as N.J.J. arrived
at work at an early hour. Employers often pay workers'
compensation to employees for injuries that occur as the
result of an on-the-job assault--including sexual assaults.
However, this case involves a unique exception to that rule
found in our workers' compensation law.
Not every injury that occurs on-the-job qualifies as a
compensable injury under our workers' compensation law. One
such exception applies in this case: An "injury" for purposes
of workers' compensation "does not include an injury caused by
the act of a third person ... intended to injure the employee
because of reasons personal to him or her and not directed
against him or her as an employee or because of his or her
employment." Ala. Code 1975, § 25-5-1(9) (emphasis added).
Essentially, when a person assaults a worker for "personal"
reasons and not because she is an employee or because of her
1070173
The time of the attack is unclear from the record.
3
N.J.J. testified at trial that she left home at 3:30 a.m. and
that she lived nearby. Police investigation records indicate
that N.J.J. stated that she arrived at the restaurant at a
"little before" 4:00 a.m. The police report indicates that
N.J.J. was assaulted after 4:00 a.m.
The trial court's order inexplicably appears to state
4
that this incident occurred "earlier that day."
10
employment, then our workers' compensation law does not
require the employer to provide benefits.
In this case N.J.J. was a manager of a Burger King fast-
food restaurant owned by her employer, Wesfam Restaurants,
Inc. N.J.J. had recently returned to work after suffering a
back injury. In the early morning hours of August 11, 2002,
N.J.J. was brutally attacked and sexually assaulted while
attempting to enter the restaurant.
3
N.J.J. identified a patron of the restaurant, D.S., as
the
lookout
for
the
attackers.
N.J.J.
told
police
investigators that although she recognized D.S., who had been
barred from the restaurant, she had not seen him "in a couple
of months." At trial, however, N.J.J. testified that "in
August of 2002," "shortly" before the attack, she had barred
D.S. from the restaurant because he had set a napkin holder on
fire. When questioned by police, D.S. produced an alibi for
4
1070173
11
the night of the attack. Additionally, the police records in
the criminal investigation of the rape, which were admitted
into evidence without objection, contain the results of three
tests conducted during a polygraph examination of D.S.
performed by the Huntsville Police Department. The results
indicated "no deception" when D.S. was asked if he had
participated in the assault. Apparently, no charges where
filed against D.S., and N.J.J.'s attackers are still at large.
According to N.J.J.'s complaint, she suffered pain and
other psychological and physical injuries as a result of the
assault. Wesfam paid N.J.J. temporary-total-disability
benefits until September 2004. When Wesfam's workers'
compensation carrier eventually stopped paying benefits,
N.J.J.
filed
the
underlying action seeking additional
benefits.
At trial, Wesfam argued that the attack against N.J.J.
was motivated by personal reasons. Wesfam thus argued that
there was no "injury" as defined by § 25-5-1(9) and that
worker's compensation benefits were not due to be paid.
Specifically, Wesfam pointed to evidence indicating that
N.J.J.'s attackers said to her at the beginning of the attack
1070173
The record indicates that N.J.J. is white and her husband
5
is black.
12
that "they were going to show [her] what they do to nigger
lovers" and repeated similar statements during the attack.5
Here, the trial court was called upon by N.J.J. and
Wesfam to determine whether the attack against N.J.J. resulted
from
"personal"
reasons
and
not
because
of
N.J.J.'s
employment. Because this determination of fact was made by
the trial judge based in part on live in-court testimony, the
ore tenus rule applies. Thus, the trial court's findings are
presumed correct:
"'"The trial court heard this case without a
jury. Where evidence is presented to the trial court
ore tenus, the court's findings of fact are presumed
correct; its findings will not be disturbed except
for a plain and palpable abuse of discretion."'"
Ex parte Squires, 960 So. 2d 661, 664 (Ala. 2006) (quoting
Squires v. City of Saraland, 960 So. 2d 651, 656 (Ala. Civ.
App. 2005), quoting in turn Ex parte Board of Zoning
Adjustment of Mobile, 636 So. 2d 415, 417 (Ala. 1994)).
Furthermore, in a worker's compensation case, this Court "must
view the facts in the light most favorable to the findings of
the trial court." Ex parte Professional Bus. Owners Ass'n
Workers' Comp. Fund, 867 So. 2d 1099, 1102 (Ala. 2003).
1070173
13
Because the trial court's factual findings are presumed
correct under the ore tenus rule, this Court cannot conclude
that the trial court was wrong unless it can say that those
findings "are clearly erroneous, without supporting evidence,
manifestly unjust, or against the great weight of the
evidence. Jasper City Council v. Woods, 647 So. 2d 723, 726
(Ala. 1994)." Carquest Auto Parts & Tools of Montgomery,
Alabama, Inc. v. Waite, 892 So. 2d 422, 424 (Ala. Civ. App.
2004). Finally, the trial court's findings of fact are not to
be disturbed if those findings are supported by substantial
evidence. Williams v. Union Yarn Mills, Inc., 709 So. 2d 71,
72 (Ala. Civ. App. 1998).
It was N.J.J.'s burden at trial to prove that she
sustained an injury for purposes of the Workers' Compensation
Act, Ala. Code 1975, § 25-5-1 et seq. Additionally, it was
N.J.J.'s burden to establish that the injury was not the
result of "reasons personal" or that the attack was directed
against her as an employee or because of her employment. In
entering a judgment for Wesfam, the trial court stated:
"After due consideration of all of the evidence
and having observed the demeanor of [N.J.J.] from
the witness stand and in the courtroom and having
made due inquiry into [N.J.J.'s] claim and the
1070173
14
credibility and defenses of [Wesfam], the court
makes the following determination:
"....
"... The Court finds that based upon the
evidence presented at trial, the assault of [N.J.J.]
was motivated by reasons personal to the attackers
and was not directed against [N.J.J.] as an employee
of [Wesfam] or because of her employment with
[Wesfam]."
On appeal, the Court is called upon to decide if the
trial court erred in determining:
1. That the attackers intended to injure N.J.J.
because of "reasons personal," and
2. that the attack was not directed against N.J.J.
as an employee of Wesfam or because of her
employment with Wesfam.
The evidence presented in this case is sparse: N.J.J.
briefly testified at trial, and the trial court accepted into
evidence--without
objection--certain
police
records
and
medical records. After reviewing the record, I cannot
conclude that the trial court's findings "are clearly
erroneous, without supporting evidence, manifestly unjust, or
against the great weight of the evidence."
As to the first finding, testimony at trial indicated
that the attack on N.J.J. was racially motivated. As to the
second factor, the Chief Justice notes that the record
1070173
15
contains
substantial
evidence
indicating
that
N.J.J.'s
employment, which placed her in the restaurant parking lot in
the early morning hours, exposed N.J.J. to an increased risk
of attack. Specifically, the Chief Justice finds that "it can
readily be inferred" that the parking lot was a place where
N.J.J.'s attackers could more easily carry out the assault.
However, in reviewing ore tenus findings in a worker's
compensation case, this Court is to "view the facts in the
light most favorable to the findings of the trial court,"
Professional Business Owners, 867 So. 2d at 1102, and not to
make inferences of fact that would call the trial court's
findings into question. Therefore, I cannot make the
inference the Chief Justice makes that N.J.J.'s employment
exposed her to an increased danger of assault. Further,
N.J.J. testified that the area where she was initially
accosted was "well-lit," requiring her attackers to remove her
to a more concealed place. The police report indicated that
the "parking lot" in which the attack took place was lighted
by artificial lighting. Additionally, there is no evidence
indicating that N.J.J. was required to report to work at such
an early hour or that Wesfam even knew she was doing so. An
1070173
16
assistant manager at the restaurant, who was interviewed by
the police regarding the attack, indicated that N.J.J.
"normally" did not arrive at work until 5:00 a.m., when two
employees would open the restaurant. Another employee stated
that N.J.J. changed her schedule the day before the attack so
that she would start work at 4:00 a.m. instead of 5:00 a.m.
These facts, viewed with the presumption of correctness
accorded to the findings of the trial court, tend to indicate
that the parking lot posed no increased danger of assault and
that N.J.J.'s employment did not require her to be in the
parking lot at that time.
I voted to grant certiorari review in this case because
I was concerned that the trial court erred in determining that
the attack was not directed against N.J.J. because of her
employment. Specifically, it appeared to me during this
Court's preliminary examination of the petition for certiorari
review that D.S. could have participated in the attack because
N.J.J. had banned him from the restaurant or that N.J.J.'s
employment had contributed to the attack because she was
required to be in a dangerous place when opening the
restaurant. In this case, however, the trial court found
1070173
17
otherwise. There is evidence to support its conclusion.
Although I might have decided the facts differently, the
standard of review does not allow me to substitute my own
judgment for the trial court's.
I am convinced that a female employee who is raped while
reporting to work during early morning hours can demonstrate
at trial that her job exposed her to an increased risk of an
attack. Given that the trial court's findings in this case
are presumed correct and construing the facts in a light most
favorable to the trial court, I cannot conclude that the trial
court's decision is plainly and palpably wrong, clearly
erroneous, without supporting evidence, manifestly unjust, or
against the great weight of the evidence. Therefore, I must
concur to quash the writ.
1070173
18
MURDOCK, Justice (concurring in the result).
I concur in the result based on principles articulated in
Dean v. Stockham Pipe & Fittings Co., 220 Ala. 25, 28, 123 So.
225, 227 (1929), including those articulated in the following
queries posed in Dean:
"[D]id the fact and nature of the employment, not
only furnish the opportunity, but suggest the
opportunity? Did the employment mark the deceased
as the special victim of the robbery? Was he
murdered because he was Mr. Dean, or because he was
a night watchman, an easy mark, because of the
conditions of his employment?"
(Emphasis added.)
Here, the fact and nature of N.J.J.'s employment may have
"furnished the opportunity" for her attack; they did not
"suggest the opportunity" in the causal sense contemplated by
Dean. In other words, there was substantial evidence from
which the trial court could conclude that it was not N.J.J.'s
"employment [that] mark[ed her] as the special victim" of the
attack, but that she was attacked because of reasons personal
to her (in the words of Dean, "because [s]he was [N.J.J.]"),
and not "because of the conditions of h[er] employment."
As the Dean court explained: "'The rational mind must be
able to trace the resultant injury to a proximate cause set in
1070173
19
motion by the employment, and not by some other agency.'" 220
Ala. at 28, 123 So. at 227 (quoting Madden Case, 222 Mass.
487, 111 N.E. 379 (1916)). Here, the trial court, based on
substantial evidence, traced N.J.J.'s injury not to "a
proximate cause set in motion by her employment," but to one
set in motion by "some other agency," i.e., the personal
animus of N.J.J.'s attackers identified by the trial court.
1070173
20
COBB, Chief Justice (dissenting).
I respectfully dissent from this court's decision to
quash the writ in this case. I would review the decision of
the Court of Civil Appeals. I believe substantial evidence
demonstrates that N.J.J.'s workplace created an increased
danger of an assault, that no substantial evidence supports
the trial court's conclusion to the contrary, and that N.J.J.
is entitled to worker's compensation benefits.
In August 2002, N.J.J. was 38 years old and was employed
by Wesfam Restaurants, Inc., d/b/a Burger King ("Burger
King"), as the store manager for the Burger King restaurant on
South Memorial Parkway in Huntsville. Sometime during August
2002, a shift manager reported to N.J.J. that some teenagers
were making noise in the dining room of the restaurant.
N.J.J. approached the teenagers and saw that one of them had
set a napkin holder on fire. N.J.J. recognized D.S. as the
one in the group who lit the fire. N.J.J. told D.S. to leave.
N.J.J. had never talked to D.S. outside the restaurant and did
not know him from anywhere else.
On August 11, 2002, N.J.J. went to work between 3:30 and
4:30 a.m. to do office paperwork. The record reflects that,
1070173
21
on the days when N.J.J. did not arrive at work early to do
paperwork, she reported to work at 5:00 a.m. N.J.J. testified
about the reason for her early arrival at work on August 11,
2002, as follows:
"It was on a Sunday morning and I came in early to
do paperwork. We usually have a day manager that
would come in at 7:00 to do the paperwork, but I
came in as a restaurant manager and did it before we
opened -- or planned on doing it before we opened.
So I allowed myself the extra time. I did that
often."
When N.J.J. arrived at work that morning, she drove
around the restaurant looking for suspicious activity. Seeing
nothing suspicious, she parked her car and began walking to
the doors of the restaurant. As N.J.J. was attempting to
enter the restaurant, two white males whom N.J.J. had never
seen before grabbed her and forced her behind the restaurant.
The area behind the restaurant between the back of the
building and the dumpster was "a well-lit area," so the men
pushed N.J.J. farther into the dumpster area near some
concrete barriers. As they forced N.J.J. behind the
restaurant, the two men told N.J.J. they were going to show
her "what they do to nigger-lovers," and they repeated this
statement several times during the attack. The two men hit,
1070173
22
slapped, and verbally berated N.J.J., ripped and cut her
clothes off, and smashed her face against a wall. They burned
her with cigarettes and cut her with a knife, and they raped
her. A third man, whom N.J.J. recognized as D.S., served as
a lookout while the two strangers assaulted her.
N.J.J.'s attackers did not make any specific statements
during the attack to indicate that they felt she was a "nigger
lover" because of the way she treated employees or customers
at the Burger King restaurant. N.J.J.'s attackers also did
not make any specific statements during the attack to indicate
that they felt she was a "nigger lover" because she, a white
woman, was married to an African-American man. The attackers
also did not state whether they knew N.J.J.'s husband was an
African-American. N.J.J. recognized D.S. solely from her
interaction with him at the restaurant, and she had never seen
the two assailants before.
A
Burger
King
employee
discovered
N.J.J.
lying
unconscious and partially clothed in the shrubbery outside the
dumpster area around 5:15 a.m. on the morning of the attack.
A three-foot-long metal dustpan handle was in N.J.J.'s vagina.
An ambulance took her to Huntsville Hospital, where she was
1070173
23
treated for injuries sustained during the assault. The
doctors removed the metal dustpan handle from N.J.J.'s vagina
and treated her other injuries, including abrasions and
lacerations to her body, face, and genitals. N.J.J.
subsequently underwent psychiatric treatment and was treated
for back injuries sustained in the attack.
N.J.J. believes the attackers assaulted her because she
banned D.S. from the restaurant, although her attackers made
no references to the napkin-burning incident or to the fact
that she had banned D.S. from the restaurant. During the
ensuing police investigation, D.S. gave police an alibi for
the time of the incident. The police contacted one of D.S.'s
friends to investigate his alibi. The friend stated that he
telephoned his girlfriend's house between 5:00 and 5:30 a.m.
on August 11, 2002, and spoke to D.S., who was there. The
police did not verify D.S.'s alibi for the time of the attack.
D.S. also took a polygraph test, which did not indicate that
he was being deceptive when D.S. denied participating in the
attack. D.S. was not prosecuted. The only disputed issue of
fact in this case is whether D.S. was present during the
attack. Burger King questions whether D.S. was present during
1070173
Because the trial court expressly based its findings of
6
fact and conclusions of law both on evidence indicating that
D.S. was present and on evidence indicating that D.S. was not
present, I cannot conclude that the trial court found that
D.S. was not present during the attack. However, even if the
trial court had so found, such a finding would not affect my
analysis or conclusion. Although D.S.'s presence or absence
during the attack is relevant to whether N.J.J.'s attack was
motivated by reasons personal to her attackers, it is not
determinative as to whether, by placing N.J.J. in the parking
lot in the early morning hours, N.J.J.'s job "as a restaurant
manager" subjected N.J.J. to a hazard of assault she would not
be exposed to equally apart from her employment. See Dallas
Mfg. Co. v. Kennemer, 243 Ala. 42, 44, 8 So. 2d 519, 520
(1942).
24
the attack, while N.J.J. testified unequivocally that he was.
The trial court's order makes clear that the trial court did
not resolve this dispute in reaching its findings. The trial
court noted evidence indicating that D.S. gave the police an
alibi and that a polygraph test indicated no deception when
D.S. denied being present during the attack. However, the
trial court also noted N.J.J.'s testimony that D.S. was
present and "asked the two attackers not to burn [N.J.J.] with
a cigarette and further asked the two attackers to leave."
6
After a nonjury trial, the trial court in N.J.J.'s
worker's compensation action found that N.J.J. did not sustain
a compensable injury under § 25-5-1(9), Ala. Code 1975,
because, it reasoned, her injuries were caused by the acts of
1070173
25
third parties who intended to injure her for reasons personal
to them and not directed against her as an employee or
resulting from her employment.
The Court of Civil Appeals affirmed the trial court's
judgment, without an opinion. N.J.J. v. Wesfam Rests., Inc.,
d/b/a Burger King (No. 2060444, October 12, 2007), __ So. 2d
__ (Ala. Civ. App. 2007)(table).
I note the following standard of review applies when an
appellate court reviews a worker's compensation case: "An
appellate court reviews the burden of proof applied at trial
and other legal issues in workers' compensation claims without
a presumption of correctness." Ex parte USX Corp., 881 So. 2d
437, 441 (Ala. 2003) (citing Ala. Code 1975, § 25-5-81(e)(1));
Ex parte Drummond Co., 837 So. 2d 831, 832 (Ala. 2002).
However, "[i]n reviewing pure findings of fact, the finding of
the circuit court shall not be reversed if that finding is
supported by substantial evidence." § 25-5-81(e)(2), Ala.
Code 1975.
Under § 25-5-1(9), Ala. Code 1975, known as Alabama's
"special-assault statute," the Workers' Compensation Act does
not apply to and a claimant will be denied benefits for an
1070173
Now codified as § 25-5-1(9), Ala. Code 1975.
7
26
"injury caused by the act of a third person or
fellow employee intended to injure the employee
because of reasons personal to him or her and not
directed against him or her as an employee or
because of his or her employment."
(Emphasis added.)
By operation of the word "and" in the above-quoted
portion of § 25-5-1(9), Ala. Code 1975, the special-assault
statute will not bar worker's compensation benefits in this
case if N.J.J.'s injuries were not "caused by the act of a
third person or fellow employee intended to injure the
employee because of reasons personal to him or her" or if the
injurious acts were "directed against [N.J.J.] as an employee
or because of ... her employment." Harris v. Sloss-Sheffield
Steel & Iron Co., 222 Ala. 470, 471, 132 So. 727, 727 (1931)
(noting that the special-assault statute "does not exclude all
cases where the assault is 'intended to injure the employee
because of reasons personal to him,' but adds: 'And not
directed against him as an employee, or because of his
employment'" (quoting Ala. Code 1923, § 7596(J) )); Dean v.
7
Stockham Pipe & Fitting Co., 220 Ala. 25, 123 So. 225 (1929);
1070173
27
1 Terry A. Moore, Alabama Workers' Compensation § 10:31
(1998).
Our courts have developed a test for determining whether
injurious acts of third parties are "directed against [the
worker] as an employee or because of his or her employment."
§ 25-5-1(9), Ala. Code 1975. "To prove that the assault was
directed at the employee as an employee or because of the
employment, the claimant must show a causal relation between
the employment and the assault." Moore, § 10:24. "[T]he
assault will be considered an accident arising out of the
employment if the employment subjected the employee to a
hazard of assault he or she would not be exposed to equally
apart from his or her employment." Id. "The employment may
materially increase the risk of assault in essentially two
ways: the nature of the employment duties may naturally
expose the employee to a greater probability of being
assaulted or the environment in which the employee works may
subject the worker to an increased risk of assault." Id. §
10:25 (citing Southern Cotton Oil Co. v. Bruce, 249 Ala. 675,
32 So. 2d 666 (1947); Dallas Mfg. Co. v. Kennemer, 243 Ala.
42, 8 So. 2d 519 (1942); Howard Odorless Cleaners, Inc. v.
1070173
28
Blevins, 237 Ala. 210, 186 So. 141 (1939); Republic Iron &
Steel Co. v. Ingle, 223 Ala. 127, 134 So. 878 (1931); Southern
Ry. v. Brown, 223 Ala. 140, 134 So. 643 (1931); Dean v.
Stockham Pipe & Fittings Co., 220 Ala. 25, 123 So. 225 (1929);
and McLaughlin v. Davis Lumber Co., 220 Ala. 440, 125 So. 608
(1929)).
A long history of caselaw in our state has consistently
applied the principle that, in the absence of some causal
connection between the injury and the employment, the mere
fact that the employment put the employee in the place where
he or she was injured is not sufficient to demonstrate that an
employee was attacked "because of his or her employment," §
25-5-1(9), Ala. Code 1975. See Harris v. Sloss-Sheffield
Steel & Iron Co., 222 Ala. at 471, 132 So. at 727; Jacobs v.
Bowden Elec. Co., 601 So. 2d 1021 (Ala. Civ. App. 1992); and
Dallas Mfg. Co. v. Kennemer, supra.
However, our courts have also long recognized that an
employee is attacked "because of his or her employment,"
within the meaning of the special-assault statute, when the
employment not only furnishes the setting and opportunity for
the attack, but also exposes the worker "to a danger
1070173
29
materially in excess of that to which people commonly in that
locality are exposed when not situated as [the injured
employee] was in the course of his employment." Dallas Mfg.
Co. v. Kennemer, 243 Ala. at 44, 8 So. 2d at 520. Therefore,
when an employee demonstrates that the workplace setting
itself increased the risk that the worker would be the victim
of an of attack or injury caused by a third party, then the
employee has demonstrated the requisite causal link between
the employment and the injury, and the special-assault statute
does not exclude the worker from eligibility for worker's
compensation benefits, even if the attacker's motivation was
entirely personal. See, e.g., Dean v. Stockham Pipe & Fitting
Co., 220 Ala. at 29, 123 So. at 228 (finding that the
predecessor to the special-assault statute did not bar
recovery where a night watchman was robbed and murdered for
reasons entirely personal to the attacker, because the night
watchman's job placed him alone on the employer's premises at
night with money in his pocket, "thus furnishing an
opportunity for robbery without interference -- a risk beyond
the common risk" (quoting Lanni v. Amsterdam Bldg. Co., 217
A.D. 278, 216 N.Y.S. 763 (1926)); but see Dallas Mfg. Co. v.
1070173
30
Kennemer, supra (holding that no causal relation existed
between the employment and injury where the injured employee
was struck by an errant bullet from the pistol of the angry
wife of another employee who came to the workplace and
attempted to shoot a third employee with whom she had been
having an affair, because the employment did not "specially
expose [the injured employee] to a hazard of this sort"), and
Harris v. Sloss-Sheffield Steel & Iron Co., supra (finding
that the predecessor to the special-assault statute barred
recovery where the employee did not show that a workplace
injury was caused by an increased risk of injury inherent in
the workplace); cf. Southern Cotton Oil Co. v. Bruce, 249 Ala.
675, 679-80, 32 So. 2d 666, 679-80 (1947) (noting that "'the
employment caused the exposure to the risk'" of a fatal
gunshot wound caused when a boy playing with a pistol
accidentally shot an employee whose job required him to carry
and be around pistols; the Court reasoned that firearm
accidents are "unquestionably a hazard peculiar to the
employment of a ... person whose duties require the use of
firearms"); Boris Constr. Co. v. Haywood, 214 Ala. 162, 106
So. 799 (1925) (holding that a delivery truck driver's
1070173
31
employment "caused the exposure to the risk" of injury, where
a small boy accidentally shot and killed the truck driver in
front of the employer's place of business while the truck
driver was stepping into his delivery truck to make a delivery
for the employer); and Ex parte Rosengrant, 213 Ala. 202, 104
So. 409 (1925) (holding that a causal relation existed between
an employee's gunshot wound and the employment because the
employee's job, which caused him to be among barges tallying
lumber as it was removed from a barge, exposed him to "hazards
from loafing and working crews" on other boats to which he
would not otherwise have been exposed).
In this case, the trial court found that the attack on
N.J.J. was "racially motivated." A finding that an attack was
"racially motivated" does not answer the legal question of
whether "the employment subjected [N.J.J.] to a hazard of
assault ... she would not be exposed to equally apart from ...
her employment." Moore, § 10:24. If workplace hazards were
a contributing factor in the attack, then, as a matter of law,
the injurious acts were "directed against N.J.J. as an
employee or because of her employment," regardless of whether
1070173
32
the attackers' motivation was "personal to them" and "racial."
See Dean, supra; Harris, supra.
I recognize that N.J.J. could have developed the record
more fully as to whether the dangers inherent in the parking
lot of the Burger King restaurant when she arrived in the
darkness of the early morning were factors that increased her
risk of attack beyond that of a normal citizen not employed as
a manager of a fast-food restaurant. However, the record
contains
substantial
evidence
indicating
that
N.J.J.'s
employment, which placed her in the Burger King parking lot in
the early morning hours, did expose N.J.J. to an increased
risk of attack. N.J.J.'s undisputed testimony established
that she was acting in her position "as restaurant manager"
when she arrived at the Burger King restaurant between 3:30
and 4:00 a.m. to report to work. From the facts presented, it
can readily be inferred that the parking lot of the Burger
King restaurant was a place where three men had little
difficulty carrying out an extensive, coordinated, terrible
assault on N.J.J. without detection between 3:30 a.m. and 4:00
a.m. Moreover, the fact that N.J.J. felt the need to drive
around the parking lot looking for suspicious activity before
1070173
I note, however, unlike the usual rules of tort
8
liability, the Workers' Compensation Act does not require that
injuries must be forseeable to be compensable. See Moore §
10:4.
33
getting out of her car demonstrates that a reasonable person
who was familiar with the parking lot of the Burger King
restaurant and the surrounding environment would understand
that the parking lot posed an increased hazard of an attack at
that time of the morning. Thus, although N.J.J. could have
8
developed a more elaborate record as to the fact that the
parking lot posed an increased hazard in the pre-dawn hours,
the record contains substantial evidence indicating that
N.J.J.'s early-morning work environment increased her risk of
being attacked and that her duties "as restaurant manager"
placed her in that environment at that time.
Moreover, in similar cases, our courts have not required
expert testimony, local crime statistics, or other such
evidence to establish that, when workplace conditions place
the employee alone on the employer's premises at night, the
workplace creates an increased risk that the employee will be
attacked. Rather, this Court has stated, as a matter of law
and reason, that "'crimes of violence flourish under cover of
the night and darkness,'" Dean, 220 Ala. at 29, 123 So. at 228
1070173
34
(quoting Heidemann v. American Dist. Tel. Co., 230 N.Y. 305,
308, 130 N.E. 302, 303 (1921) (Cardozo, J.)). In Dean, for
example, this Court adopted the reasoning of another court
that, where a night watchman's "'employment placed him alone
on the premises with his wages in his pocket,'" the employment
thus
"furnishe[d]
an
opportunity
for
robbery
without
interference -- a risk beyond the common risk." 220 Ala. at
29, 123 So. at 228 (quoting Lanni v. Amsterdam Bldg. Co., 217
A.D. at 279, 216 N.Y.S. at 764); cf., e.g., Bruce, 249 Ala. at
680, 32 So. 2d at 670 ("When guns are handled shooting
accidents can be expected. Such an accident is unquestionably
a hazard peculiar to the employment of a ... person whose
duties require the use of firearms."); Rosengrant, 213 Ala. at
205, 104 So. at 412 (observing that the injured employee's
"duties ... called him to this place, where ... barges with
crews were coming and going. This exposed him to hazards from
loafing and working crews on these boats, to which he would
not otherwise have been subjected.").
I also note that N.J.J. could have more fully developed
the record with regard to whether, as the manager of the
Burger King restaurant, she was required to obtain Burger
1070173
35
King's approval of her work hours and whether Burger King
generally made a practice of reviewing or approving her work
schedule in advance. N.J.J. could also have created a more
complete record as to whether, as is often the case with
restaurant managers, she was responsible for setting the work
schedules of all store employees, including her own.
Nevertheless, I respectfully disagree with Justice Smith's
conclusion that, when viewed in the light most favorable to
the trial court's findings, evidence indicating that N.J.J.
set her own schedule on the day of the attack, combined with
a lack of evidence of whether Burger King acquiesced in
N.J.J.'s practice of "often" arriving at work early to do
paperwork, provides reasonable support for the trial court's
judgment.
In this regard, Justice Smith finds significance in
statements of other Burger King employees included in the
police report of the assault. Those statements convey that,
before the day of the attack, N.J.J. changed her work schedule
so that she would start work at 4:00 a.m. on the day of the
attack instead of her usual 5:00 a.m. start time. Although I
agree that this evidence reasonably supports the inference
1070173
As Justice Smith notes, at the trial in this case the
9
entire police report of the investigation into the assault
was admitted into the record without objection.
Moreover, I see no reason to interpret the workers'
10
compensation statute so as to punish an employee for arriving
at work early to perform her duties for the employer's benefit
where there is no evidence that early arrival is prohibited.
Ex parte Ruggs, [Ms. 1061379, August 22, 2008] __ So. 2d __,
__ (Ala. 2008) ("'"[C]ourts must liberally construe the
workers' compensation law 'to effectuate its beneficent
purposes,' although such a construction must be one that the
language of the statute 'fairly and reasonably supports.'"'").
36
that N.J.J. set her own schedule to arrive early on the day of
the attack, this evidence simply does not shed any light on
9
whether N.J.J. was (or was not) required to schedule an early
arrival for the day of the attack. Therefore, I cannot agree
with Justice Smith that such evidence reasonably supports the
inference that N.J.J.'s employment did not require her to be
at work at 4:00 a.m.10
In fact, the only evidence as to whether N.J.J. was
operating within her job responsibilities and requirements as
a restaurant manager in arriving early to complete paperwork
was N.J.J.'s testimony that she "came in as a restaurant
manager and did [the paperwork] before we opened -- or planned
on doing it before we opened. So I allowed myself the extra
1070173
37
time. I did that often." That evidence is uncontradicted and
leaves no room for an inference that N.J.J.'s early arrival
was not a function of her responsibilities "as a restaurant
manager." See § 25-5-1(9), Ala. Code 1975 ("'Injury and
personal injury' shall mean only injury by accident arising
out of and in the course of the employment ....").
Justice Smith and Burger King also rely on testimony from
N.J.J. that the restaurant parking lot was "well-lit" as
substantial evidence indicating that N.J.J. was not exposed to
an increased risk of attack by being in the parking lot
between 3:30 and 4:00 a.m. However, N.J.J. did not testify
that the parking lot was "well-lit," only that a portion of
the parking lot was "well-lit." The record contains no
evidence as to whether the level of lighting in the Burger
King parking lot made the parking lot safe for workers
arriving in the pre-dawn hours. Even if I were to speculate
that the lighting in the parking lot ameliorated the risk of
attack to some degree, the record contains no evidence
indicating that the lighting in the parking lot so reduced the
risk of attack in the pre-dawn hours that N.J.J.'s risk of
attack was no greater than that of other people in the area
1070173
38
"not situated as [s]he was in the course of [her] employment."
Dallas Mfg. Co. v. Kennemer, 243 Ala. at 44, 8 So. 2d at 520
(emphasis added). Thus, the fact that the parking lot was
"well-lit," even if true, does not reasonably support the
trial court's conclusion that N.J.J.'s injury was not caused
by her employment.
In sum, substantial evidence exists in this record
indicating that, by placing N.J.J., a female, alone in the
Burger King parking lot around 3:30 a.m., N.J.J.'s employment
furnished an opportunity for rape and assault without
interference, a risk that exceeded the risk that N.J.J. would
have been subjected to in other employment. Cf. Dean, 220
Ala. at 29, 123 So. at 228. Conversely, the record contains
no evidence to support a finding that the parking lot did not
pose a risk of rape and assault materially in excess of that
faced by ordinary citizens not reporting to work in the
parking lot of a Burger King fast-food restaurant alone at
3:30 in the morning. See Dallas Mfg. Co. v. Kennemer, 243
Ala. at 44, 8 So. 2d at 520. On this record, a conclusion by
the trial court that the parking lot did not create an
1070173
39
increased risk of attack would have been unsupported by the
evidence and plainly erroneous.
I share Justice Smith's respect for the ore tenus rule
and her concern that this Court must never substitute its
judgment for the trial court's by failing to draw all
reasonable factual inferences favorable to the trial court's
factual findings. However, the ore tenus standard of review
does not permit this Court to affirm a trial court's judgment
when, "after considering all the evidence and all reasonable
inferences that can be drawn therefrom, [this Court] concludes
that the judgment is plainly and palpably wrong, manifestly
unjust, or without supporting evidence." Boggan v. Judicial
Inquiry Comm'n, 759 So. 2d 550, 555 (Ala. 1999) (emphasis
added). I conclude that the trial court erred in finding that
N.J.J.'s employment did not subject her to an increased risk
of attack because I find no evidence in the record that
reasonably supports that conclusion, not because I have
reweighed conflicting evidence to find that, on balance,
another conclusion or inference is more probable. See
Friedman v. Friedman, 971 So. 2d 23, 28 (Ala. 2007)
("Appellate courts do not sit in judgment of disputed evidence
1070173
40
that was presented ore tenus before the trial court. ...[I]t
is not within the province of the appellate court to reweigh
the testimony and substitute its own judgment for that of the
trier of fact. ...[A]n appellate court may not substitute its
judgment for that of the trial court. To do so would be to
reweigh the evidence, which Alabama law does not allow."
(internal quotation marks omitted)).
Finally, I note that policy concerns do not preclude a
holding that a worker attacked on workplace property while
arriving at (or leaving) work at night is entitled to workers'
compensation benefits if the environment increases the risk of
attack. Such a holding would be consistent with Alabama law
governing which workplace injuries are compensable under the
Workers' Compensation Act.
"Generally, Alabama law has held that injuries
sustained in accidents that occur while an employee
is traveling to and from work are not covered under
the Act because those injuries do not meet the
'arising out of and in the course of employment'
requirement. Alabama courts have carved out only a
few exceptions to this general rule:
"'Such exceptions include situations where
...
the
accident
occurs
on the
employer's property
o r
o n p u b l i c
property
that
is
tantamount
to
the
employee's ingress to and egress from the
employer's property ....'
1070173
41
"An additional exception to the general rule arises
when an employee, during his travel to and from
work, is engaged in some duty for his employer that
is in furtherance of the employer's business."
Ex parte Shelby County Health Care Auth., 850 So. 2d 332, 336
(Ala. 2002) (emphasis added) (citations omitted); cf. Hughes
v. Decatur Gen. Hosp., 514 So. 2d 935, 937 (Ala. 1987) ("Most
courts consider parking lots owned or maintained by an
employer as part of the employer's premises whether the lots
are within the main company premises or separated from it.");
Thompson v. Anserall, Inc., 522 So. 2d 284, 286 (Ala. Civ.
App. 1988) ("'[T]he employment is not limited by the actual
time when the workman reaches the scene of his labor and
begins it nor when he ceases, but includes a reasonable time,
space, and opportunity before and after while he is at or near
his place of employment.'"(quoting Barnett v. Britling
Cafeteria Co., 225 Ala. 462, 463, 143 So. 813, 813 (1932)).
If the special-assault statute operates to exclude
injuries such as those suffered by N.J.J. from the definition
of injuries compensable under the Workers' Compensation Act,
then employers will be liable for such injuries, if at all,
under the broader remedies afforded by tort law, rather than
for the more limited recovery available under the Workers'
1070173
42
Compensation Act. Lowman v. Piedmont Exec. Shirt Mfg. Co.,
547 So. 2d 90, 93 (Ala. 1989) ("[I]f an accident is not
compensable because it is outside the coverage of the Act,
then the exclusive remedy provisions of the Act are also
inapplicable. Thus, an employer is protected from tort
liability only as to injuries expressly covered by the
language of the Act."); cf., e.g., Rose v. Cadillac Fairview
Shopping Ctr. Props. (De.) Inc., 668 A.2d 782 (Del. Super. Ct.
1995) (holding that the Delaware workers' compensation statute
was the exclusive remedy and barred the tort action of a Sears
Roebuck & Co. employee who was abducted from her employer's
parking lot and raped when she arrived 55 minutes early to
work).
In conclusion, this case is indistinguishable from Dean.
In Dean, the night watchman had something his attackers wanted
-- his money, which he was carrying on his person. Because of
his service to his employers, he was in a place of increased
vulnerability that suggested to the robbers the opportunity to
capitalize on their wholly personal desire to rob Mr. Dean.
Likewise, in this case, N.J.J. had something personal to her
that her attackers wanted. Although evidence exists that
1070173
I note, however, that the record contains absolutely no
11
evidence indicating why the attackers called N.J.J. a "nigger-
lover." If D.S. was present during the attack, her only
acquaintance with the attackers came from a brief interaction
through her employment that had nothing to do with her
personal life. If, as Burger King argues, D.S. was not
present during the attack, then the record shows that N.J.J.'s
attackers were entirely strangers to her. In either case (and
especially if D.S. was not present), there is not substantial
evidence from which to conclude that the attackers could have
known N.J.J. was married to an African-American or how she
treated African-Americans apart from her employment.
43
could support a finding that the attackers wanted to retaliate
against N.J.J. for banning D.S. from the restaurant,
substantial evidence supports the trial court's conclusion
that N.J.J.'s attackers' motivation was entirely personal,
regardless of whether her attackers wanted to molest her
because she was a female or because of some desire to exact
vengeance on N.J.J. because they perceived her as "nigger-
lover."
However, the evidence in this case leads only to the
11
conclusion that, because of her service to her employer,
N.J.J. was in a place of increased vulnerability that
suggested to the attackers the opportunity to capitalize on
their personal desire to rape and attack her. The attackers
knew N.J.J. was alone in an isolated parking lot, and this
exposure incident to her employment furnished and suggested to
1070173
44
the attackers their opportunity, and so had a causal
connection with the assault. Cf. Dean, 220 Ala. at 28, 123
So. at 227 (distinguishing Common Sch. Dist. v. District
Court, 168 N.W. 555 (Minn. 1918)). "If the hazard peculiar to
the employment is a contributing cause, it matters not whether
violence was directed to [the employee] as an employee."
Dean, 220 Ala. at 28, 123 So. at 227 (emphasis added).
Therefore, as in Dean, the special-assault statute does not
operate as a bar to worker's compensation benefits.
Because substantial evidence demonstrates that N.J.J.'s
workplace created an increased risk of attack, and because
substantial evidence does not exist upon which the trial court
could have concluded otherwise, I believe the trial court's
judgment is plainly and palpably wrong, and the Court of Civil
Appeals erred in affirming the trial court's order denying
N.J.J. worker's compensation benefits based on the special-
assault statute. Accordingly, I respectfully dissent. | October 24, 2008 |
e4c1f5df-9f96-467c-b4e7-58c58f75a9ad | Ex parte Michael Sale. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Michael Sale v. State of Death Alabama) | N/A | 1071283 | Alabama | Alabama Supreme Court | REL: 10/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071283
_________________________
Ex parte Michael Sale
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Michael Sale
v.
State of Alabama)
(Houston Circuit Court, CC-06-112;
Court of Criminal Appeals, CR-05-1447)
LYONS, Justice.
WRIT DENIED. NO OPINION.
1071283
2
See, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., and Murdock, J., dissent.
1071283
See Rule 39(a)(2)(D), Ala. R. App. P.
1
3
COBB, Chief Justice (dissenting).
I respectfully dissent from the denial of this petition
for a writ of certiorari. I believe that the petition is
procedurally sufficient, particularly in the context of a
death-penalty case reviewed under the plain-error standard,1
to assert grounds for review as to two issues. First, I
believe that this Court should grant Sale's petition to
further examine the issue whether Sale was denied a fair trial
and the protections afforded by Ala. Code 1975, § 13A-5-54,
when the trial court failed to stop the proceedings for a day
when Sale's lead counsel -- the only fully experienced counsel
available to Sale -- was ill and unable to attend court.
Second, I believe that the Court should grant Sale's petition
in order to examine whether the trial court violated Rule
16.2(d), Ala. R. Crim. P., in ordering the forensic
psychologist who had been appointed to assist the defense in
trial preparation and to be a witness at trial to surrender
his interview notes to the prosecution, and, if so, whether
that error rose to the level of plain error. | October 31, 2008 |
5afff6b4-8bf3-4cfa-b15c-c226f9657f11 | Melinda Fenn v. Ozark City Schools Board of Education | N/A | 1070821 | Alabama | Alabama Supreme Court | REL:11/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070821
____________________
Melinda Fenn
v.
Ozark City Schools Board of Education
Appeal from Dale Circuit Court
(CV-07-120)
BOLIN, Justice.
Melinda Fenn, a teacher in the Ozark City School System,
after being notified that the local regional newspaper, the
Dothan Eagle, had made a request to view specific disciplinary
information in her personnel file pursuant to Alabama's Open
1070821
2
Records Act, § 36-12-40 and -41, Ala. Code 1975, filed an
action against the Ozark City Schools Board of Education ("the
Board") in the Dale Circuit Court seeking a judgment declaring
that the requested information was not subject to disclosure
under the Open Records Act and ordering the Board not to
release the information. The trial court entered a judgment
holding that the requested information was subject to
disclosure, and Fenn appealed. Because Fenn's action does not
present a justiciable controversy, we vacate the judgment and
dismiss the appeal.
In Ex parte State ex rel. James, 711 So. 2d 952, 960 (Ala.
1998), this Court stated:
"Not all controversies, even very public ones,
are justiciable. Justiciability is a compound
concept, composed of a number of distinct elements.
Chief among these elements is the requirement that a
plaintiff have 'standing to invoke the power of the
court in his behalf.' Ex parte Izundu, 568 So. 2d
771, 772 (Ala. 1990). Unless a plaintiff's interest
in acquiring a favorable judgment is one that is
'tangible,' Reid v. City of Birmingham, 274 Ala. 629,
639, 150 So. 2d 735, 744 (1963), and 'concrete,'
Brown Mechanical Contractors, Inc. v. Centennial Ins.
Co., 431 So. 2d 932, 937 (Ala. 1983), he has no
standing to assert his claims. Moreover, as we
explained in Reid:
"'"Not only must the plaintiff prove
his
tangible
interest
in
obtaining
a
judgment, but the action must be adversary
in character, that is, there must be a
1070821
3
controversy between the plaintiff and a
defendant,
subject
to
the
court's
jurisdiction,
having
an
interest
in
opposing his claim. Unless the parties
have such conflicting interests, the case
is likely to be characterized as one for an
advisory opinion, and the controversy as
academic, a mere difference of opinion or
disagreement not involving their legal
relations, and hence not justiciable."'
"274 Ala. at 639, 150 So. 2d at 744 (quoting E.
Borchard, Declaratory Judgments, 29-30) (emphasis
added). Thus, '"[t]he absence of adversary or the
correct adversary parties is in principle fatal."'
Rogers v. Alabama Bd. of Educ., 392 So. 2d 235, 237
(Ala.
Civ.
App.
1980)
(quoting
E.
Borchard,
Declaratory Judgments 76 (2d ed. 1941)) (emphasis
added). See also Stamps [v. Jefferson County Bd. of
Educ.], 642 So. 2d [941,] 944 [(Ala. 1994)]."
Thus, for a controversy to be justiciable, there must be some
controversy between the parties. See also Gulf Beach Hotel,
Inc. v. State ex rel. Whetstone, 935 So. 2d 1177, 1183 (Ala.
2006) ("[I]t is inarguable that the State's declaratory-
judgment complaint does not allege any controversy between
parties whose legal interests are adverse."). There is no
controversy in the present case –- both Fenn and the Board have
consistently taken the position that the information in Fenn's
personnel file requested by the Dothan Eagle is exempt from
1070821
The Board has expressed some doubt about whether its
1
position
is
correct;
nevertheless, it
unequivocally
argues
that
the Open Records Act does not require it to disclose to the
Dothan Eagle the requested information in Fenn's personnel
file.
4
disclosure. Both in the trial court and before this Court,
1
the briefs filed by the Board merely support and expand upon
the arguments made in Fenn's briefs. At no point in this
litigation has the Board taken a position contrary to Fenn's;
indeed, it might be said that "[t]he record before us depicts
a case, a trial, and an appeal between a plaintiff and
defendant who had no real differences between themselves."
State ex rel. Baxley v. Johnson, 293 Ala. 69, 73, 300 So. 2d
106, 109 (1974). Thus, there is no party before this Court
arguing that the requested disciplinary information in Fenn's
personnel file should be released to the Dothan Eagle. We have
stated on many occasions that this Court will not craft
arguments for parties, see, e.g., University of South Alabama
v. Progressive Ins. Co., 904 So. 2d 1242, 1247-48 (Ala. 2004);
we are even less inclined to craft arguments on behalf of
nonparties.
This Court confronted a similar scenario in Ex parte State
ex rel. James, a case arising from Etowah County Circuit Judge
1070821
5
Roy Moore's display in his Etowah County courtroom of a plaque
bearing the Ten Commandments. After the Alabama Freethought
Association ("AFA") sued Judge Moore in the United States
District Court for the Northern District of Alabama, the State
filed a declaratory-judgment action in the Montgomery Circuit
Court naming the AFA, the American Civil Liberties Union of
Alabama ("the ACLUA"), and Judge Moore as defendants,
notwithstanding the fact that the State's position was
favorable to Judge Moore. Relying heavily on Johnson, this
Court vacated the judgment entered by the trial court, stating:
"The controversy in Johnson is closely analogous
to the one in this case, and the rationale in that
case is particularly pertinent in this one. Indeed,
as to the claim of the plaintiff State against the
defendant Judge Moore, there is not even facial
adverseness. On the contrary, the pleadings show, on
the face, that the plaintiff and Judge Moore actually
support one another. More specifically, the State
does not seek a declaration that Judge Moore's
actions are incorrect in any respect. On the
contrary, the complaint –– particularly, in those
emphasized portions quoted above –– extols the
actions of Judge Moore and seeks a judgment declaring
that his practices are eminently correct and must be
sanctioned. The State does not allege that it has
been harmed in any manner by Judge Moore's practices.
It does not seek to interfere with this defendant's
practices, but, in fact, seeks to perpetuate this
defendant's conduct.
"Predictably, Judge Moore, in his answer,
admitted all the substantive allegations in the
complaint. As we stated above, Judge Moore 'join[ed]
1070821
6
with the State of Alabama in requesting a judgment'
declaring
that
the
challenged
practices
were
constitutional. (Emphasis added.) In other words,
this defendant expressly agrees with the plaintiff
that his practices are constitutional and that he is
entitled to continue them in perpetuity.
"The absence of adverseness has been evident
throughout this litigation. It was evidenced, for
example, by the fact that Judge Moore was the only
defendant who opposed removal of the action to the
federal court. Indeed, the AFA and the ACLUA, at
various times throughout the litigation in the trial
court, contended that Judge Moore should be realigned
as a plaintiff.
"Judge
Moore
thus
goes
further
than
the
defendant superintendent of banks in Johnson, who
took no position on the merits. Judge Moore takes a
position on the merits, but he takes a position that
is identical to that of the State, and he argues it
strenuously. As between the State and Judge Moore,
there exists no controversy, whatever –– not even a
contrived one. This is not what lawsuits are about."
711 So. 2d at 961-62 (footnote omitted). Because the present
case similarly lacks adverseness or a real controversy between
the parties, the judgment entered by the trial court is void
and is hereby vacated. Because a void judgment will not
support an appeal, City of Mobile v. Scott, 278 Ala. 388, 390,
178 So. 2d 545, 547 (1965), Fenn's appeal is dismissed.
JUDGMENT VACATED AND APPEAL DISMISSED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | November 21, 2008 |
dfec5adf-58ef-48cf-853c-bf20f5ae7e44 | Springhill Hospitals, Inc., d/b/a Springhill Memorial Hospital v. Sharon Larrimore, as administratrix of the estate of Luther Shelton Larrimore, deceased | N/A | 1051748 | Alabama | Alabama Supreme Court | REL: 2/29/08
REL: 9/19/08, as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
____________________
1051748
____________________
Springhill Hospitals, Inc., d/b/a Springhill Memorial
Hospital
v.
Sharon Larrimore, as administratrix of the estate of Luther
Shelton Larrimore, deceased
Appeal from Mobile Circuit Court
(CV-02-3205)
SEE, Justice.
Sharon Larrimore, as administratrix of the estate of her
husband, Luther Shelton Larrimore ("the estate"), sued
Springhill
Hospitals,
Inc.,
d/b/a
Springhill
Memorial
Hospital
1051748
2
("SMH"), among others, alleging wrongful death resulting, at
least in part, from the negligence of SMH's pharmacist, H.
Gregory Weeks. The jury returned a general verdict in favor
of the estate for $4 million in punitive damages. We hold
that the learned-intermediary doctrine cuts off SMH's
liability for Weeks's alleged breach of a duty of care. We,
therefore, reverse the trial court's judgment and render a
judgment as a matter of law in favor of SMH.
Facts and Procedural History
On August 15, 2001, Luther, accompanied by his wife,
Sharon, went to the SMH emergency room complaining of severe
knee pain. The attending physician, Dr. John M. McMahon, Jr.,
a physician with approximately 22 years of experience who had
performed emergency-room services at SMH since about 1988,
conducted a physical examination and ordered a blood test, a
uric acid test, and an X-ray. Dr. McMahon diagnosed Luther's
pain as an attack of gout in his knee. Dr. McMahon discussed
three possible options for treatment by medication. Luther
rejected the first two options because he was concerned that
1051748
Luther rejected Indocin, because he was afraid it would
1
aggravate his ulcerative colitis. He also rejected
prednisone, because it had previously caused aseptic necrosis
in his hips.
A "loading dose" is "a comparatively large dose given at
2
the beginning of treatment to start getting the effect of a
drug, especially one with slow clearance thus requiring a long
period to achieve stable blood levels without a high initial
dose." Stedman's Medical Dictionary 538 (27th ed. 2000).
In addition to the PDR, Dr. McMahon had various other
3
sources available to him, including at least four additional
medical reference books that described how to dose colchicine
for the treatment of gout. Dr. McMahon also had the option of
walking to the hospital pharmacy to review pharmaceutical
references. Dr. McMahon did not use any of these additional
methods for obtaining information regarding administering
colchicine.
[substituted p. 3]
they would aggravate his existing medical problems. He
1
accepted
the third
option,
treatment with
colchicine,
which
he
had taken in small doses in the past when he had suffered from
attacks of gout in his toe. The last time Dr. McMahon had
prescribed colchicine was 17 years earlier. Dr. McMahon
testified that after referring to the Physician's Desk
Reference ("the PDR"), which he had in his office, he sent a
prescription to the SMH pharmacy for Luther, prescribing a
loading dose of 2 mg. of colchicine to be taken orally.
2
3
1051748
Although
Weeks
has no specific recollection of any
of
the
4
pertinent facts, it is undisputed that he was the only SMH
pharmacist on duty at the time of Luther's initial visit to
the emergency room, and he would have been the pharmacist who
received Dr. McMahon's prescription for 2 mg. of colchicine to
be administered orally to Luther in the emergency room.
At the time Luther was treated at SMH, SMH had in effect
5
a written policy applicable to its pharmacy entitled
"Interventions." That policy applied to both inpatients and
outpatients:
"Purpose: To define a collaborative patient
monitoring system which is necessary to assure
appropriateness and continuity of care and provide
the information necessary for creating an accurate
medication history and profile.
"Policy: The prescribing physician shall be
called for consultation whenever the pharmacist
deems it necessary upon reviewing a medication order
to prevent any unwanted outcome.
"These
consultations
shall
be
termed
'interventions' and shall be reviewed by the
Pharmacy and Therapeutic Committee."
4
When Weeks received the prescription, he telephoned Dr.
4
McMahon to tell him that although 2 mg. is the proper loading
dosage when colchicine is administered intravenously, it is
not the proper loading dosage when the drug is administered
orally. Weeks also informed Dr. McMahon that the pharmacy
5
stocked colchicine in tablet form only, not for intravenous
administration. Dr. McMahon asked Weeks what the proper oral
1051748
[substituted p. 5]
dosage was and what the proper prescription dosage was. Weeks
informed Dr. McMahon that the proper oral loading dosage of
colchicine would be 0.5 to 1.2 mg. and a prescription dosage
would be a 0.5 to 0.6 mg. tablet to be taken every hour until
the symptoms lessened or until the onset of gastrointestinal
problems such as cramping, nausea, vomiting, and/or diarrhea.
Dr. McMahon testified that Weeks did not ask him any questions
about Luther, nor did Dr. McMahon volunteer any information.
Dr. McMahon testified that among Luther's other health
problems, Luther suffered from "renal insufficiency," or
kidney impairment. Dr. McMahon also testified that he knew
that the dosage of colchicine for a patient with renal
problems should be lower than for a patient whose kidney
function is normal. In fact, as the trial court pointed out
in its order denying SMH's postjudgment motions, the proper
dosage of colchicine for a patient with normal kidney function
is a single 0.5 or 0.6 mg. tablet taken every hour until the
1051748
6
gout pain lessens or gastrointestinal symptoms appear
(whichever happens first), but not to exceed a total of 6 mg.
The proper dosage for a patient with a history of "renal
insufficiency" is a single 0.5 to 0.6 mg. tablet taken every
hour until the gout pain lessens or gastrointestinal symptoms
appear (whichever happens first), but not to exceed a total of
3 mg. Colchicine is contraindicated for patients with severe
renal impairment.
At the conclusion of Dr. McMahon's conversation with
Weeks, he altered Luther's prescription and prescribed a
loading dose of one 0.6 mg. tablet of colchicine, which the
SMH pharmacy sent to Dr. McMahon and which Luther took while
he was at the hospital. Dr. McMahon also wrote Luther a
prescription for sixteen 0.6 mg. tablets, which could be
refilled twice. Weeks was not aware that Dr. McMahon was
going to prescribe any tablets for Luther beyond the one
tablet dispensed by the SMH pharmacy or that Dr. McMahon was
providing any treatment for Luther beyond the emergency room.
Dr. McMahon's prescription for sixteen 0.6 mg. tablets of
colchicine did not indicate the maximum number of pills that
could be taken. Dr. McMahon testified that he prescribed more
1051748
7
medication than Luther was supposed to take for the gout
attack in his knee so that if he had of another attack, Luther
would not have to pay another co-pay to have the medication
refilled. Dr. McMahon further testified that he did not
specify in the prescription the maximum number of pills or
milligrams of colchicine Luther should take because he had
repeatedly emphasized to Luther and his wife during their
discussions that Luther should stop taking the colchicine as
soon as he experienced either a lessening of the gout symptoms
or the onset of gastrointestinal symptoms such as cramping,
nausea, vomiting, and/or diarrhea. Luther chose to fill the
prescription for 16 colchicine tablets at a local drugstore,
independent of SMH. There is no evidence in the record
indicating that the pharmacist at the local drugstore
contacted Dr. McMahon with concerns about the dosage or that
that pharmacist was ever named as a defendant in this action.
On August 15, 2001, Luther took the loading dose at SMH
and then, after returning home that same night, continued
taking one tablet every hour throughout the night, taking a
total of 7.2 mg of colchicine. On August 16, 2001, Luther
returned to the SMH emergency room, complaining of vomiting,
1051748
Dr. McMahon and Dr. Mahoney were not employees of SMH;
6
they were members and employees of a physicians' professional
corporation.
8
nausea, diarrhea, fever, abdominal pain, and abdominal
cramping. His attending physician that morning, Dr. Michael
Mahoney, diagnosed him with a viral syndrome and a drug
6
reaction to colchicine and sent him home. Luther's symptoms
continued to worsen. He was admitted to the Mobile Infirmary
Medical Center on August 17, 2001, and he died two days later.
The estate brought a wrongful-death action against
several defendants, including Dr. McMahon, Dr. Mahoney, and
SMH, alleging that the defendants had negligently failed to
provide Luther "reasonably proper and adequate medical care
and treatment." A summary judgment was eventually entered for
Dr. Mahoney and all the other defendants, except Dr. McMahon
and SMH. On January 9, 2006, the first day of the first trial
of this case, Dr. McMahon entered into a pro tanto settlement
agreement with the estate for $200,000, the existence and
amount of which was admitted into evidence at trial, leaving
SMH as the only defendant. The first trial ended in a
mistrial when the jury could not return a unanimous verdict.
In the second trial, the jury returned a general verdict
1051748
SMH alleges eight other instances of error on the part
7
of the trial court; however, our reversal of the trial court's
judgment on this first issue pretermits consideration of the
other alleged errors.
9
against SMH for $4 million in punitive damages. SMH moved the
trial court for, in the alternative, a judgment as a matter of
law, a new trial, or a remittitur of the punitive-damages
award. The trial court denied the motions, and SMH now
appeals to this Court.
Issue
SMH argues that the trial court erred in denying its
motion for a judgment as a matter of law by refusing to apply
the learned-intermediary doctrine, which, SMH alleges, cuts
off Weeks's liability -- and therefore SMH's vicarious
liability -- to the estate.7
Standard of Review
"This Court reviews de novo the grant or denial of
a motion for a [judgment as a matter of law],
determining whether there was substantial evidence,
when viewed in the light most favorable to the
nonmoving party, to produce a factual conflict
warranting jury consideration. Alfa Life Ins. Corp.
v. Jackson, 906 So. 2d 143, 149 (Ala. 2005) (citing
Ex parte Helms, 873 So. 2d 1139, 1143-44 (Ala.
2003)). '"'[S]ubstantial evidence is evidence of
such weight and quality that fair-minded persons in
the exercise of impartial judgment can reasonably
infer the existence of the fact sought to be
1051748
In Walls v. Alpharma USPD, Inc., 887 So. 2d 881, 882
8
(Ala. 2004), the United States District Court for the Northern
District of Alabama, presented to this Court the following
certified question: "Does a pharmacist have a duty to warn of
foreseeable injuries from the use of the prescription drug
10
proved.'"'"
Jones Food Co. v. Shipman, [Ms. 1051322, December 15, 2006]
___ So. 2d ___, ___ (Ala. 2006). Because SMH's argument is
that the trial court erred when it denied SMH's postjudgment
motion for a judgment as a matter of law, our review is de
novo.
Analysis
SMH argues that the trial court erred in denying its
motion for a judgment as a matter of law because, it argues,
the learned-intermediary doctrine cuts off any duty Weeks may
have owed Luther. The estate, however, argues that the
learned-intermediary doctrine does not apply in this case
because, it says, the doctrine "exists as a defense in
products liability cases" and this is a "simple medical
negligence case based on breaches of the standard of care."
Estate's brief at 31.
Although we disagree that the learned-intermediary
doctrine is limited to products-liability cases, the facts of
8
1051748
he/she
is
dispensing
under
AEMLD
[Alabama
Extended
Manufacturer's Liability Doctrine], common-law negligence or
other Alabama law?" Walls, 887 So. 2d at 882. The plaintiff
in Walls, who was pregnant, took prescription medication that
she alleged caused her child to be born with numerous medical
conditions.
The
plaintiff
sued
both
the
prescribing
physician
and the pharmacist who dispensed the prescribed drugs. After
discussing the principles underlying the learned-intermediary
doctrine, we answered the federal court's question in the
negative and concluded that the doctrine "forecloses any duty
upon a pharmacist filling a physician's prescription ... to
warn the physician's patient, the pharmacist's customer, or
any other ultimate customer of the risks or potential side
effects of the prescribed medication." Walls, 887 So. 2d at
886. We did not limit our review or our holding to products-
liability issues.
11
this case do require an analysis outside the traditional
setting in which we have applied the doctrine. This Court
adopted the learned-intermediary doctrine in Stone v. Smith,
Kline & French Lab., 447 So. 2d 1301 (Ala. 1984), a case
addressing whether a manufacturer's duty to warn extends
beyond the prescribing physician to the physician's patients
who would ultimately use the drugs. Then, in Walls v.
Alpharma USPD, Inc., 887 So. 2d 881, 882 (Ala. 2004), we
applied the doctrine to address whether a pharmacist has a
"duty to warn of foreseeable injuries from the use of the
prescription drug he/she is dispensing." In those cases, the
duty at issue was a drug manufacturer's or a drug dispenser's
1051748
12
duty to warn customers. Here, the duty at issue is not a duty
to warn a customer, Luther, of potential risks or side
effects, but a duty of care, allegedly breached by Weeks when
he gave Dr. McMahon allegedly incomplete dosing information
for colchicine. The learned-intermediary doctrine is more
than just a narrow rule of law regarding a manufacturer's or
pharmacist's limited duty to warn. It addresses questions of
liability in light of the relationships between the parties
involved in the distribution, prescribing, and use of
prescription drugs. We discussed in Walls the policies
underlying the learned-intermediary doctrine:
"'The relationship between physician-patient-
manufacturer applies equally to the relationship
between the physician-patient and pharmacist. In
both circumstances the patient must look to the
physician, for it is only the physician who can
relate the propensities of the drug to the physical
idiosyncrasies of the patient. "It is the physician
who is in the best position to decide when to use
and how and when to inform his patient regarding
risks and benefits pertaining to drug therapy." W.
Keeton, R. Keeton & D. Owen, Prosser and Keeton on
Torts § 96, at 688 (5th ed. 1984).
"'In Young v. Key Pharmaceuticals, Inc., 112
Wash. 2d 216, 770 P.2d 182 (1989), we stated "[The
physician's standard of care regarding] proper
dosages of medication is not within the scope of
matters on which nonphysicians are competent ...."
Young, at 230, 770 P.2d 182.
1051748
13
"'....
"'Neither manufacturer nor pharmacist has
medical education or knowledge of the medical
history of the patient which would justify a
judicial imposition of a duty to intrude into the
physician-patient relationship. ... Requiring the
pharmacist to warn of potential risks associated
with a drug would interject the pharmacist into the
physician-patient relationship and interfere with
ongoing treatment. We believe that duty, and any
liability arising therefrom is best left with the
physician.'"
Walls, 887 So. 2d at 885-86 (quoting McKee v. American Home
Prods. Corp., 113 Wash. 2d 701, 782 P.2d 1045, 1051 (1989)).
See also Stone, 447 So. 2d at 1305 ("'Prescription drugs are
likely to be complex medicines, esoteric in formula and varied
in effect. As a medical expert, the prescribing physician can
take into account the propensities of the drug as well as the
susceptibilities of his patient. His is the task of weighing
the benefits of any medication against its potential dangers.
The choice he makes is an informed one, an individualized
medical judgment bottomed on knowledge of both patient and
palliative.'" (quoting Reyes v. Wyeth Labs., 498 F.2d 1264,
1276 (5th Cir. 1974))). On the basis of those underlying
policies,
we
determined
in
Walls
that
the
learned-intermediary
doctrine" forecloses any duty upon a pharmacist filling a
1051748
14
physician's prescription, valid and regular on its face, to
warn the physician's patient, the pharmacist's customer, or
any other ultimate consumer of the risks or potential side
effects of the prescribed medication." 887 So. 2d at 886.
Although the facts of Walls differ from those here, the
rationale and policies
discussed
in
that decision are
directly
applicable. Here, we are asked to address the allocation of
liability between the same parties involved in Walls -- the
pharmacist, the physician, and the patient -- in order to
answer the same
ultimate
question: whether
a pharmacist should
be liable for harm to a physician's patient resulting from
medication prescribed by the physician. The rationale in
Walls answers that question: the physician, not the
pharmacist, has the medical education and training and the
knowledge of a patient's individual medical history necessary
for properly prescribing medication; therefore, it is the
physician, not the pharmacist, who should bear the liability
for mistakes in prescribing or dosing the medication. Walls,
887 So. 2d 886 ("'"[The physician's standard of care
regarding] proper dosages of medication is not within the
scope of matters on which nonphysicians are competent" ....
1051748
The estate also argues that Weeks's duty of care arose
9
from statutes and regulations related to the practice of
pharmacy and pharmacists. However, as the estate itself
notes, the estate "elected as a matter of trial strategy not
to introduce evidence of the statutorily and regulatorily
[sic] imposed duties out of concern that [it] might run afoul
of caselaw holding generally that legislation regulating
learned professions cannot be used to establish a private
right of action in the breach." "'[T]his Court will affirm a
judgment for any reason supported by the record that satisfies
the requirements of due process.'" CitiFinancial Corp., LLC
v. Peoples, [Ms. 1051519, May 18, 2007] ___ So. 2d ___, ___
(Ala. 2007) (quoting Smith v. Mark Dodge, Inc., 934 So. 2d
375, 380 (Ala. 2006), citing in turn Taylor v. Stevenson, 820
So. 2d 810, 814 (Ala. 2001)). By the estate's own admission,
there is no evidence in the record regarding the alleged
statutory or regulatory duties. Moreover, the estate has not
directed us to any law or facts indicating that the actions of
the SMH pharmacy with regard to the only prescription it
received from Dr. McMahon, the prescription for a loading dose
of 2 mg. of colchicine, violated any of the alleged duties.
15
Neither manufacturer nor pharmacist has the medical education
or knowledge of the medical history of the patient which would
justify a judicial imposition of a duty to intrude into the
physician-patient
relationship.'"
(quoting
McKee,
113
Wash.
2d
at 711, 782 P.2d at 1051, quoting in turn Young v. Key Pharm.,
Inc., 112 Wash. 2d 216, 230, 770 P.2d 182, 190 (1989))).
The estate maintains that Weeks breached a duty of care
to Luther, which duty, the estate alleges, arose when Weeks
voluntarily undertook to give Dr. McMahon information about
the proper dosage in administering colchicine. We have held
9
1051748
Therefore, we cannot affirm the judgment on this ground.
16
that "one who volunteers to act, though under no duty to do
so, is thereafter charged with the duty of acting with due
care and is liable for negligence in connection therewith."
Dailey v. City of Birmingham, 378 So. 2d 728, 729 (Ala. 1979).
The estate argues that SMH, through its policies and
procedures, voluntarily assumed a duty of care through its
pharmacy, and that "SMH's pharmacy
voluntarily
undertook to be
a drug information resource for physicians to rely upon; SMH's
clinical pharmacist voluntarily undertook to intervene and
consult with Dr. McMahon upon identifying the initial
prescription error; and SMH's clinical pharmacist voluntarily
undertook to provide dosing information when asked to do so by
Dr. McMahon."
The application of the voluntary-undertaking doctrine to
a pharmacist is a question of first impression for this Court.
The estate argues that courts "have held in numerous factual
scenarios that pharmacists voluntarily assumed duties of
care." Estate's brief at 46. The estate cites Ferguson v.
Williams, 101 N.C. App. 265, 399 S.E.2d 389 (1991); Baker v.
Arbor Drugs, Inc., 215 Mich. App. 198, 205-06, 544 N.W.2d 727,
1051748
17
731 (1996); and Cottam v. CVS Pharmacy, 436 Mass. 316, 764
N.E.2d 814 (2002).
The cases cited by the estate are readily distinguishable
from this one and therefore unpersuasive. In each case cited,
the respective court found that the pharmacy or pharmacist had
voluntarily undertaken a duty to the customer based on the
interactions between the pharmacist and the customer. None of
those cases addresses the voluntary assumption of a duty based
on a pharmacist's interaction with the customer's physician.
See Ferguson, 101 N.C. App. at 272, 399 S.E.2d at 393 ("A
druggist simply has the duty to act with due, ordinary care
and
diligence
in
compounding
and
selling
drugs.
...
[H]owever,
... if a pharmacist undertakes to advise a client concerning
a medication, the pharmacist is under a duty to advise
correctly."); Baker, 215 Mich. App. at 205-06, 544 N.W.2d at
730-31 ("[T]here is no legal duty on the part of a pharmacist
to monitor and intervene in a customer's reliance on drugs
prescribed by a licensed treating physician. ... [However],
defendant [Arbor Drugs, Inc.] voluntarily assumed a duty of
care when it implemented the Arbortech Plus [computer] system
and then advertised that this system would detect harmful drug
1051748
18
interactions for its customers."); Cottam, 436 Mass. at 323-
26, 764 N.E.2d at 821-23 ("A pharmacy, like any other person
or entity, may voluntarily assume a duty ... to provide
information, advice or warnings to its customers. ... [T]he
scope of the duty voluntarily undertaken by a pharmacy is a
fact-specific inquiry based on the totality of the pharmacy's
communications with the patient and the patient's reasonable
understanding, based on those communications, of what the
pharmacy has undertaken to provide.").
Moreover, the pharmacist in Ferguson had specific
knowledge related to the patient's medical history, and in
Baker the pharmacy had taken steps to provide warnings based
on the customer's individual medication profile. Ferguson,
101 N.C. App. at 272, 399 S.E.2d at 394 ("It is undisputed
that [the pharmacist] knew that Ferguson was allergic to
Percodan .... It is also clear she knew that Ferguson had
suffered from an anaphylactic reaction to Percodan."); Baker,
215 Mich. App. at 205, 544 N.W.2d at 731 ("Plaintiff has
presented evidence that defendant implemented, used, and
advertised through the media that it used, the Arbortech Plus
computer system to monitor its customers' medication profiles
1051748
The estate argues that "the standard of care [in this
10
case] required [Weeks] to ask for and obtain more information
before he gave an answer to the question about how to dose
[c]olchicine."
19
for adverse drug interactions."). Here, there is no evidence
indicating that Weeks knew anything of Luther's medical
history.
Further, the standard of care put forward by the estate10
would place the physician in a position adjunct to the
pharmacist, resulting in exactly the situation our decisions
in Walls and Stone sought to prevent, asking the pharmacist to
intrude himself or herself into the physician-patient
relationship and requiring the pharmacist to give advice or
take actions that he or she is neither licensed nor trained to
give or take. See Walls, 887 So. 2d at 886 ("'"[The
physician's standard of care regarding] proper dosages of
medication is not within the scope of matters on which
nonphysicians are competent ...." "[P]harmacists are not
doctors and are not licensed to prescribe medication because
they lack the physician's training in diagnosis and
treatment."'" (quoting McKee, 113 Wash. 2d at 711, 782 P.2d at
1051, quoting in turn Young, 112 Wash. 2d at 230, 770 P.2d at
1051748
Even if we were to hold that SMH's "Interventions"
11
policy imposed a duty of care on Weeks, the facts of this case
do not demonstrate a breach of that duty. As noted
previously, SMH's policy, entitled "Interventions," provided
that "[t]he prescribing physician shall be called for
consultation whenever the pharmacist deems it necessary upon
reviewing a
medication
order
to
prevent any
unwanted
outcome."
Weeks followed this policy when he telephoned Dr. McMahon
about the only prescription he received with respect to
medication to be administered to Luther, namely, one 2 mg.
tablet of colchicine. Weeks caught Dr. McMahon's error in
prescribing 2 mg. of colchicine to be administered orally --
an improper loading dosage for oral administration -- and
informed Dr. McMahon that 2 mg. of colchicine would be a
proper loading dosage for colchicine only if it was
administered intravenously, and that SMH did not have
colchicine available in a format to be administered
intravenously.
20
190)).
11
In light of the foregoing, we are unpersuaded by the
estate's argument that Weeks voluntarily assumed a duty of
care when he answered Dr. McMahon's question about dosing
colchicine. Because we find the principles articulated in
Walls and Stone applicable to this case, we hold that the
learned-intermediary doctrine precludes SMH's liability for
harm resulting from any mistakes on Dr. McMahon's part in
prescribing colchicine. In light of that holding, we hold
that the estate, therefore, did not present "substantial
evidence ... to produce a factual conflict warranting jury
1051748
21
consideration," Jones Food Co. v. Shipman, [Ms. 1051322,
December 15, 2006] ___ So. 2d at ___, and that SMH was
entitled to a judgment as a matter of law on this issue. Our
decision on this issue pretermits consideration of the other
issues argued by SMH on this appeal.
Conclusion
We hold that the principles of the learned-intermediary
doctrine apply in this case to foreclose any duty of care owed
by Weeks to Luther, based on Weeks's statements to Dr. McMahon
regarding the dosing of colchicine. SMH, therefore, was
entitled to a judgment as a matter of law, and the trial court
erred in denying its postjudgment motion seeking that relief.
We reverse the trial court's judgment and render a judgment as
a matter of law in favor of SMH.
REVERSED AND JUDGMENT RENDERED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | September 19, 2008 |
23340d54-013a-453e-91f1-39ea13e0545c | Ex parte Dolgencorp, Inc. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Dolgencorp, Inc. v. Barbara Ann Gibson) | N/A | 1060428 | Alabama | Alabama Supreme Court | Rel: 10/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1060428
____________________
Ex parte Dolgencorp, Inc.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Dolgencorp, Inc.
v.
Barbara Ann Gibson)
(Clarke Circuit Court, CV-00-142;
Court of Civil Appeals, 2050335)
PARKER, Justice.
We granted certiorari in this workers' compensation case
to review an alleged conflict between the no-opinion
1060428
Section 25-5-1(6) defines "wages or weekly wages" as
1
follows: "The terms shall in all cases be construed to mean
'average weekly earnings,' based on those earnings subject to
federal income taxation and reportable on the Federal W-2 tax
form ...."
2
affirmance of the trial court's judgment by the Court of Civil
Appeals and that court's earlier decisions regarding the
appropriate application of § 25-5-57(b), Ala. Code 1975, a
portion of the Workers' Compensation Act, § 25-5-1 et seq.,
Ala Code 1975. Section 25-5-57(b) provides:
"(b) Computation of compensation; determination
of average weekly earnings. Compensation under this
section shall be computed on the basis of the
average weekly earnings. Average weekly earnings
shall be based on the wages, as defined in Section
25-5-1(6)
of
the
injured
employee
in
the
[1]
employment in which he or she was working at the
time of the injury during the period of 52 weeks
immediately preceding the date of the injury divided
by 52, but if the injured employee lost more than
seven consecutive calendar days during the period,
although not in the same week, then the earnings for
the remainder of the period, although not in the
same week, then the earnings for the remainder of
the 52 weeks shall be divided by the number of weeks
remaining after the time so lost has been deducted.
Where the employment prior to the injury extended
over a period of less than 52 weeks, the method of
dividing the earnings during that period by the
number of weeks and parts thereof during which the
employee earned wages shall be followed, provided
results just and fair to both parties will thereby
be obtained. Where by reason of the shortness of the
time during which the employee has been in the
employment of his or her employer or the casual
nature
or
terms
of
the
employment
it
is
1060428
We note that the period from December 2, 1998, the date
2
of Gibson's hire, and July 28, 1999, the date of her injury,
spans 34 weeks; however, because no one disputes the use of
the 33-week period, we will use 33 as the number of weeks
Gibson worked for Dolgen.
3
impracticable to compute the average weekly earnings
as above defined, regard shall be had to the average
weekly amount which during the 52 weeks prior to the
injury was being earned by a person in the same
grade, employed at the same work by the same
employer, and if there is no person so employed, by
a person in the same grade employed in the same
class of employment in the same district. Whatever
allowances of any character made to an employee in
lieu of wages are specified as part of the wage
contract shall be deemed a part of his or her
earnings."
We conclude that a conflict does exist, and we reverse the
judgment of the Court of Civil Appeals and remand the case to
that court for resolution.
Facts
Barbara Ann Gibson began work for Dollar General, a
retail discount store owned by Dolgencorp, Inc. ("Dolgen"), as
an hourly wage employee on or about December 2, 1998. She
continued to work for Dolgen for 33 weeks until she suffered
2
a work-related injury on July 28, 1999. She had become store
manager in June 1999, and her salary was increased to $425 per
week. After her injury, Gibson resigned. Her earnings for the
33 weeks that she worked totaled $8,715.88. This amount
1060428
Although the record contains significant discussion
3
regarding the extent of Gibson's disability, no argument or
discussion regarding the average weekly wage was presented to
the trial court orally. Beyond opening statements that the
average weekly wage was an issue, there was only one statement
on that subject. It was made after both sides had rested, when
Gibson's attorney gave the court and Dolgen's attorney a
brief, stating that the brief was "in regard to the average
weekly wage on which we have a dispute."
4
divided by 33 weeks results in average weekly earnings of
$264.12.
Gibson sued Dolgen in the Clarke Circuit Court in a
dispute over the extent of her disability and the amount of
her average weekly earnings, which would determine the amount
of any disability payments. The extent of Gibson's disability
is not at issue on appeal, but Dolgen challenges the trial
court's finding that Gibson's average weekly earnings were
$425. The trial court, apparently relying heavily on the fact
that Dolgen reported Gibson's salary as $425 per week when it
filed the "Employer's First Report of Injury," used that
amount as the basis for computing Gibson's benefits.
The trial court's order, dated December 13, 2005, reads,
in pertinent part, as follows:
"This cause came before the Court on the 27th
day of June, 2005, upon the pleadings, the evidence
ore tenus adduced at trial,
and the arguments of
[3]
counsel. Upon consideration of the same, the Court
1060428
5
finds as follows:
"....
"The parties are in dispute regarding two
material issues:
"1. The calculation
of
[Gibson's]
average
weekly
earnings. Dolgencorp, Inc. contends that the second
method of [Ala.] Code [1975,] § 25-5-57(b) should be
used
to
calculate
[Gibson's]
average
weekly
earnings, which would result in the amount of
$264.12. [Gibson] contends that the third method of
[Ala.] Code [1975,] § 25-5-57(b) should be used to
calculate her average weekly earnings, which would
result in the amount of $425.00. Four Hundred and
Twenty-five dollars ($425.00) is also the average
weekly wage self-reported by Dolgencorp, Inc. to the
State of Alabama in Employer's First Report of
Injury. This issue was briefed extensively by the
parties, evidence was submitted on the issue, and
counsel for both parties argued the issue.
"....
"Findings and Conclusions
"Upon consideration
of
the
medical
evidence,
the
vocational evidence, and the other evidence ore
tenus, including the Court's observations of Barbara
Ann Gibson, the Court has arrived at the following
findings of fact and conclusions of law:
"1. That calculating Barbara Ann Gibson's
average weekly earnings using the second method of
[Ala.] Code [1975,] § 25-5-57(b) would not obtain a
just and fair result for both parties.
"2. That it is impracticable to compute the
average weekly earnings in this case using the
second method of [Ala.] Code [1975,] § 25-5-57(b).
1060428
6
"3. That calculating [Gibson's] average weekly
earnings using the third method of [Ala.] Code
[1975,] § 25-5-57(b) is practicable in obtaining a
result that is just and fair to both parties.
"4. That the overwhelming evidence in support of
the
calculation
of
[Gibson's]
average
weekly
earnings using the third method of [Ala.] Code
[1975,] § 25-5-57(b) obtains a result of $425.00 per
week.
"5. That the result of $425.00 per week
calculating [Gibson's] average weekly earnings using
the third method of [Ala.] Code [1975,] § 25-5-57(b)
is equal to the average weekly wage self-reported by
Dolgencorp, Inc. to the State of Alabama in
Employer's First Report of Injury."
Dolgen
appealed
to
the
Court
of
Civil
Appeals,
challenging only the trial court's finding of average weekly
earnings of $425, arguing that the trial court should have
calculated Gibson's benefit based on average weekly earnings
of $264.12 under the statute, and not on average weekly
earnings of $425. The Court of Civil Appeals affirmed the
trial court's judgment, without an opinion, on October 20,
2006, citing only Henderson v. Johnson, 632 So. 2d 488, 490
(Ala. Civ. App. 1993), presumably that portion of Henderson
that states that "when it is impracticable to apply the
formulas for determining average weekly wage so as to arrive
at a just and fair result to both parties, it is left to the
1060428
7
sound judgment and judicial discretion of the trial court."
Dolgencorp, Inc. v. Gibson (No. 2050335, Oct. 20, 2006), ___
So. 2d ___ (Ala. Civ. App. 2006) (table). Dolgen sought
certiorari review of the Court of Civil Appeals' decision,
arguing that it conflicts with several decisions of this Court
and of the Court of Civil Appeals. This Court granted Dolgen's
petition.
Dolgen argues that in Collins v. Westmoreland, 600 So. 2d
253, 255 (Ala. Civ. App. 1991), the Court of Civil Appeals
construed § 25-5-57(b), Ala. Code 1975, to mean that where the
duration of employment is less than 52 weeks, the second
method in the statute for determining average weekly earnings
should be used. Dolgen argues that the Court of Civil Appeals'
decision to affirm the judgment of the trial court here
conflicts with that earlier opinion. Gibson argues that the
trial court was within its discretion to determine her average
weekly earnings as it did, because, Gibson asserts, the
statute is not mandatory when the employee, as here, did not
work in the employment for 52 weeks preceding the injury.
Gibson also argues that Dolgen's insertion of $425 as the
average weekly salary on the Employer's First Report of Injury
1060428
8
is an admission against interest that supports the trial
court's finding even where other evidence might support a
contrary finding. Gibson's brief at 27.
Standard of review
"On certiorari review, this Court accords no presumption
of correctness to the legal conclusions of the intermediate
appellate court. Therefore, we must apply de novo the standard
of review that was applicable in the Court of Civil Appeals."
Ex parte Toyota Motor Corp., 684 So. 2d 132, 135 (Ala. 1996).
The standard of review in the Court of Civil Appeals was as
follows:
"[An appellate court] will not reverse the trial
court's finding of fact if that finding is supported
by
substantial
evidence--if
that
finding
is
supported by 'evidence of such weight and quality
that
fair-minded
persons
in
the
exercise
of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved.'"
Ex parte Trinity Indus., Inc., 680 So. 2d 262, 268-69 (Ala.
1996) (quoting West v. Founders Life Assurance Co. of Florida,
547 So. 2d 870, 871 (Ala. 1989)). However, "an appellate
court's review of the proof and consideration of other legal
issues in a workers' compensation case shall be without a
presumption of correctness." Ex parte American Color Graphics,
1060428
9
Inc., 838 So. 2d 385, 387-88 (Ala. 2002) (citing § 25-5-
81(e)(1), Ala. Code 1975). Ex parte Southern Energy Homes,
Inc., 873 So. 2d 1116, 1121 (Ala. 2003).
As previously noted, no ore tenus evidence was presented
to the trial court regarding this issue. Our review,
therefore, is de novo, requiring no deference to the trial
court as would be the case under the ore tenus rule.
Analysis
"The Legislature enacted the schedule in the Workers'
Compensation Act with a primary purpose of minimizing costly
and time-consuming litigation over work-related injuries." Ex
parte Addison Fabricators, Inc., 989 So. 2d 498, 502-03 (Ala.
2007).
"The Workers' Compensation Law was adopted in
deference to a widespread belief and demand that
compensation should be awarded to workers injured
and disabled temporarily or permanently in the
course of the employment, even though sometimes the
accident might occur under such circumstances as
would not permit a recovery in an ordinary action at
law. The underlying thought was that such a system
of compensation would be in the interest of the
general welfare by preventing a worker from being
deprived of means of support as the result of an
injury received in the course of employment. The
statute is the expression of what was regarded by
the Legislature as a wise public policy concerning
injured employees."
1060428
10
1 Terry A. Moore, Alabama Workers' Compensation § 2:3 (1998)
(footnote omitted).
"[The
Workers'
Compensation
Act]
has
as
its
beneficial and humanitarian purpose to afford to
injured workers and their dependents a means of
maintenance during periods of disability where that
disability arose from the hazards of the employment.
A primary purpose of workers' compensation is to
financially aid the employee and his or her
dependents for earnings lost by the employee's
injury. The [Alabama Workers'] Compensation Act has
thus been construed to have as its one overriding
purpose the protection of injured workers from the
devastating effect of personal injuries arising out
of and in the course of employment."
Id. at § 2:5 (footnotes omitted)(emphasis added).
As
expressed
above,
one
purpose
of
the
Workers'
Compensation Act is to provide the injured worker a means of
maintenance during periods of disability, by providing
compensation based on his or her average weekly earnings for
the prior 52 weeks, or for the number of weeks the employee
worked in his or her employment, if less than 52 weeks. The
methodology used in providing this maintenance level of
compensation is a major consideration in this case.
Dolgen argues that § 25-5-57(b) requires that where the
duration of employment was less than 52 weeks, the second
method in the statute for determining average weekly earnings
1060428
11
should be used. That portion of the statute reads as follows:
"Where the employment prior to the injury extended
over a period of less than 52 weeks, the method of
dividing the earnings during that period by the
number of weeks and parts thereof during which the
employee earned wages shall be followed, provided
results just and fair to both parties will thereby
be obtained."
§ 25-5-57(b), Ala. Code 1975. Dolgen argues that the Court of
Civil Appeals' decision conflicts with its earlier opinion,
Collins, supra, which, Dolgen says, clarified the statutory
requirement and requires the trial court to use the second
method unless it determines that that method will not produce
a fair and just result. Collins states, in pertinent part:
"It has been held that the second method of
dividing the employee's earnings by the number of
weeks and parts of weeks employed is not mandatory
but that it allows the trial court to determine if
its use will provide just and fair results. However,
this is not an optional method and should be used
unless the trial court determines a valid reason
that its use will not produce fair and just
results."
Collins, 600 So. 2d at 255 (emphasis added). "Unless the court
determines that for some valid reason the use of such method
[dividing the earnings by the number of weeks] will not
produce just and fair results, the method is not merely
optional and should be used." Odell v. Myers, 52 Ala. App.
1060428
12
558, 563, 295 So. 2d 413, 416 (1974) (citing Brunson Milling
Co. v. Grimes, 267 Ala. 395, 103 So. 2d 315 (1958)). Dolgen
argues that "the trial court failed to make any factual
finding of any valid reason why the use of the statutory
method would produce substantial unfairness or unjust results
to the parties." Petition at 6 (emphasis in original). See §
25-5-88, Ala. Code 1975 (noting that "judgment shall be
entered ... and shall contain a statement of the law and facts
and conclusions as determined by said judge"). In Brunson
Milling, a case analogous to this one, this Court determined:
"Appellee was employed by appellant for only 24
weekly pay periods prior to his accident and is
therefore not within such mandatory provision, but
this case is brought within that portion of the same
subdivision which reads:
"'Where the employment prior to the
injury extended over a period of less than
fifty-two weeks, the method of dividing the
earnings during that period by the number
of weeks and parts thereof which the
employee earned wages shall be followed,
provided results just and fair to both
parties will thereby be obtained.'
"The method of computing compensation provided
in this subdivision is not mandatory, but gives the
trial court the right to determine if said method
will produce just and fair results to both parties.
Garrison v. Woodward Iron Co., 210 Ala. 45, 97 So.
64, 65 [(1923)]; H.C. Price Co. v. Lee, [249 Ala.
230, 30 So. 2d 579 (1947)]; Deaton Truck Line v.
1060428
13
Acker, 261 Ala. 468, 476, 74 So. 2d 717 [(1954)].
"While some discretion is allowed the court
under
this
subsection,
the
method
therein
established is not merely optional, but should be
used unless substantial unfairness or injustice will
result. We find no indication of an intention of the
legislature to extend to the trial court the power
whereby the court, after computing the compensation
as prescribed in said section, can then adjust for
a raise in pay received by the injured employee on
the last week of his employment next preceding his
injury, as was done by the court in the case before
us. We conclude that the court exceeded its
discretionary power in the way compensation was
computed. We think the computation should be made in
accordance with the principles hereinabove stated."
267 Ala. at 399, 103 So. 2d at 317 (emphasis added). Here, the
trial court determined to use the third method to determine
Gibson's average weekly earnings, but, as shown by the
"findings and conclusions" section of its order, it presents
no facts or reasoning in support of that determination. Both
the statute and the applicable caselaw require a finding by
the trial court that a "just and fair" result requires
deviation from the second method, which "is not an optional
method and should be used unless the trial court determines a
valid reason that its use will not produce fair and just
results." Collins, 600 So. 2d at 255.
Gibson argues that because she did not work for Dolgen
1060428
14
for 52 weeks preceding her injury the use of the statutory
formula is not mandatory. In her brief in the trial court and
again in her brief to this Court, Gibson argues that the first
method in § 25-5-57(b) for calculating the average weekly
earnings applies only to employees who were in their
employment for 52 weeks before the injury and is thus
inapplicable to her case. Gibson's brief at 12. We agree.
Gibson then argues that the use of the second method
would not obtain a just and fair result for both parties, that
it would be impracticable to calculate her earnings using the
second method, and that calculating the earnings using the
third method is practicable in obtaining a result that is just
and fair to the parties. Gibson's brief at 13. As authority,
Gibson cites only the trial court's decision that forms the
basis for our review. The record, the trial court's order, and
Gibson's brief, however, present no caselaw or reasoning in
support of the claim that the use of the second method is
impracticable, or of the claim that a calculation using the
second method would not obtain a result that is just and fair
to both parties. Gibson merely quotes this Court's statement
that the Workers' Compensation Act, being remedial in nature,
1060428
15
should be liberally construed in favor of the employee when
reasonable doubts exist. See Ex parte Byrom, 895 So. 2d 942,
946 (Ala. 2004); Riley v. Perkins, 282 Ala. 629, 213 So. 2d
796 (1968). Gibson's brief at 13. She has presented no
argument or evidence, however, that such reasonable doubts
exist.
It is true that,
"in determining legislative intent from the language
used in a statute, we may not add or detract from
that language and '[w]hen [that] language is clear,
there is no room for judicial construction.' Water
Works & Sewer Bd. of Selma, 833 So. 2d at 607. See
also, e.g., Alabama Indus. Bank v. State ex rel.
Avinger, 286 Ala. 59, 62, 237 So. 2d 108, 111 (1970)
('When [statutory] language is plain, it should be
considered to mean exactly what it says.')."
Limestone County Water & Sewer Auth. v. City of Athens, 896
So. 2d 531, 537 (Ala. Civ. App. 2004). Section 25-5-57(b)
provides for a liberal construction of its terms by requiring
the use of the second method of calculation only where a
result just and fair to both parties will thereby be obtained.
This statutory provision leaves it for the "'sound judgment
and judicial discretion of the trial court'" to determine
those instances where the statutory formula cannot be applied
to determine the average weekly wage. See Ex parte Fryfogle,
1060428
16
742 So. 2d 1258, 1261 (Ala. 1999) (quoting Aluminum Workers
Int'l v. Champion, 45 Ala. App. 570, 574, 233 So. 2d 511, 514
(1970)).
The proper exercise of judicial discretion, however, is
"'"the exercise of judicial judgment, based on facts and
guided by law, or the equitable decision of what is just and
proper under the circumstances."' Shiv-Ram, Inc. v. McCaleb,
892 So. 2d 299, 321-22 (Ala. 2003) (Houston, J., dissenting
and quoting Black's Law Dictionary 467 (6th ed. 1990))." Ex
parte Wilson, 984 So. 2d 1161, 1175 (Ala. 2007)(Cobb, C.J.,
dissenting). The statute itself provides guidance regarding
the method to be used in the event the less-than-52-week
employment period is too short or too casual in nature to
obtain a just and fair result using the second method. The
third method the trial court elected to use here provides for
the use of the "average weekly amount which during the 52
weeks prior to the injury was being earned by a person in the
same grade, employed in the same work by the same employer
...." § 25-5-57(b).
The term "too short" is not defined in the statute, but
the Court of Civil Appeals has analyzed several sets of
1060428
17
circumstances in that regard and has upheld the use of the
third method in several cases. Dolgen discusses these
decisions as follows:
"When the statute speaks of employment being so
short or casual in nature that it is impracticable
to use the statutorily preferred method, it really
means short and casual such that an alternate means
of determining the average weekly wage must be made,
and the cases where an alternate method has been
used and approved demonstrate why. See, for example:
Henderson v. Johnson, 632 So. 2d 488 (Ala. Civ. App.
1993) (worker employed just 7 weeks before injury);
Shields v. GTI Corp., 607 So. 2d 253 (Ala. Civ. App.
1992), cert. denied, 622 So. 2d 939 (Ala. 1993)
([worker] employed only 2 days before injury);
Stevison v. Qualified Personnel, Inc., 571 So. 2d
1178 (Ala. Civ. App. 1990) ([worker] employed less
than one week before injury); C.E. Adams & Co. v.
Harrell, 257 Ala. 25, 57 So. 2d 83 (1952) ([worker]
employed 'about 3 days' before injury)."
Dolgen's brief at 11-12.
Dolgen directs our attention to Meinhardt v. SAAD'S
Healthcare Servs., Inc., 952 So. 2d 368 (Ala. Civ. App. 2006),
a case in which the Court of Civil Appeals discussed what
length of employment is sufficient to justify using the second
method. In Meinhardt, the employee, Meinhardt, had been
employed for 35 weeks before the injury. The Court of Civil
Appeals decided as follows:
"The
calculation
method
...
dividing
the
earnings by the number of weeks of employment, is
1060428
18
appropriate
given
the
length
of
Meinhardt's
employment. Although § 25-5-57(b) goes on to address
circumstances in which the 'shortness of time'
during which the employee has been employed or 'the
casual nature or terms of the employment' makes it
'impracticable'
to compute the average weekly
earnings, the circumstances of this case do not
support a deviation from the [second] calculation
method .... Meinhardt's 35-week period of employment
was not so short, nor so casual in nature, as to
make it 'impracticable' to compute her average
weekly earnings in accordance with the [second
method]. The record reveals that Meinhardt chose to
work fewer hours on average than other employees
during the 35-week period. It is both 'just and
fair' to calculate Meinhardt's average weekly wage
based on the amount of time she worked. Therefore,
we reverse the judgment of the trial court on this
issue."
952 So. 2d at 378.
Gibson argues that Meinhardt did not alter the rule
affording the trial court discretion to calculate the average
weekly earnings using the third method "when it finds, based
on substantial evidence, that use of the second method would
be unjust, unfair, or impracticable." Gibson's brief at 21-22.
Gibson overlooks the statutory preference for the second
method expressed in the requirement that deviation from that
method requires a finding that the result produced using that
method would not be just and fair to both parties. No such
finding was explicitly stated in the trial court's decision.
1060428
19
Gibson goes on to argue that Meinhardt is clearly
distinguishable because, unlike Gibson, Meinhardt had not
experienced a major increase in earnings, Meinhardt had chosen
to work fewer hours on average than other employees during the
35-week period, and the calculation of Meinhardt's average
earnings using the second statutory method would be just and
fair. Gibson does not elaborate on the alleged significance
that should be attached to her promotion to a steady weekly
salary, when it "is clear from the plain language of the
statute that the average weekly wage is to be determined
retrospectively." W.W. Dyar & Sons, Inc. v. Cochran, 693 So.
2d 527, 529 (Ala. Civ. App. 1997). Further, it would appear
that Gibson, too, worked irregular hours, working less than 40
hours in 16 of the weeks she worked prior to her promotion.
There is no evidence presented as to whether the shorter hours
were her choice or Dolgen's choice, but Gibson did not argue
before the trial court that a portion of her employment was
casual. Gibson worked for 33 weeks before her injury and
Meinhardt worked 35 weeks. The periods are comparable, and
they contrast sharply with the cases cited above that
justified deviation from the second method in cases in which
1060428
20
the duration of employment ranged from two days to seven
weeks.
Contrary to Gibson's stated position that the statutory
methods are not mandatory, the statute does use the mandatory
word "shall" when it provides for the method of calculating
average weekly wages for employees who were not in their
employment for 52 weeks before their injury. It says: "Where
the employment ... extended over ... less than 52 weeks, the
method of dividing the earnings during that period by the
number of weeks ... during which the employee earned wages
shall be followed ...." § 25-5-57(b), Ala. Code 1975 (emphasis
added). Gibson apparently posits that the wording that follows
--"provided results just and fair to both parties will thereby
be obtained"--renders the second method optional because of
her unsupported assertion that in her case the method would
not obtain just and fair results for both parties. We
disagree. Short of a demonstration that the results would not
be just and fair to both parties, the second method is to be
used. "Unless the court determines that for some valid reason
the use of such method will not produce just and fair results,
the method is not merely optional and should be used." Odell,
1060428
21
52 Ala. App. at 563, 295 So. 2d at 416. We hold that if the
trial court finds that such a reason exists, it should be
presented as justification for the departure from the second
method for calculating average weekly earnings for employees
with less than 52 weeks' tenure. Here the trial court
presented no reason or reasoning, and the Court of Civil
Appeals erred in deferring to the trial court where no
deference was warranted under the applicable standard of
review.
Our search of the record reveals no finding of fact on
the part of the trial court that would require deference on
the part of an appellate court, nor do we find in the trial
court's order any evidence indicating that the court found a
valid reason that the use of the second method to determine
Gibson's average weekly earnings would not produce a just and
fair result. Because such a reason is required by Collins and
by the statute, we hold that the Court of Civil Appeals erred
in affirming the trial court's order, which did not meet the
requirements that the Court of Civil Appeals presented in
Collins.
Gibson
raises
several
other
issues
that
bear
1060428
22
consideration, and because we will not reverse the trial
court's judgment if that judgment is based on a finding of
fact that is supported by substantial evidence, we have
reviewed all aspects of the record in search of such evidence.
Gibson appears to argue that, if the second method is
used to calculate her average weekly earnings, the court
should consider only her period of employment from the time of
her promotion to the time of her injury, stating that her
"lower irregular wages prior to her promotion cannot
reasonably be said to provide a 'just and fair'
basis
for
calculation
of
her
average
weekly
earnings.
Under
such
circumstances,
therefore,
calculation
of
the
employee's
average
weekly
earnings pursuant to the second method would have
been impracticable, unjust, and unfair, and the
trial court was well within its discretion in so
finding."
Gibson's brief at 11. Not only does this argument confuse the
standards of the second and third methods of calculating
average weekly earnings, but Gibson has provided no factual or
legal foundation to support her argument that the wages earned
for 24 of the 33 weeks she was employed by Dolgen should not
be considered in calculating her average weekly earnings under
the statute. Furthermore, the method Gibson insists should be
used requires that the "shortness of the time during which the
1060428
23
employee has been in the employ of his or her employer" must
make it impracticable to use the other methods, not the
shortness of time in a particular position.
We note that the statutory scheme may result in
differences between a new hire to a position versus an
employee promoted to that position. The third method of
calculating average weekly earnings under the statute provides
that the average weekly earnings of a newly hired manager
injured after a few days on the job would be calculated by
using the wages of a surrogate who had worked in the same
grade and performed the same work for the same employer for 52
weeks, while the average weekly earnings of a similarly
injured newly promoted manager would be calculated by
including her earnings in the her lesser-paid position under
the second method. Such dissimilarities were the subject of
oral argument, but we find no reasoned resolution of the
apparent disparity within the confines of the statute. The
legislature alone has the authority to correct the statute to
alleviate the possibility of any such divergent results.
In her brief, Gibson characterizes the issue as whether
the trial court exceeded its discretion in calculating the
1060428
24
average weekly earnings as it did. This is a question that the
Court of Civil Appeals may have considered. We note, however,
that "[a] judge abuses his discretion only when his decision
is based on an erroneous conclusion of law or where the record
contains no evidence on which he rationally could have based
his decision." Dowdy v. Gilbert Eng'g Co., 372 So. 2d 11, 12
(Ala. 1979) (citing Premium Serv. Corp. v. Sperry &
Hutchinson, Co., 511 F.2d 225 (9th Cir. 1975)). Based on the
guidance provided in Collins, on the Meinhardt decision, on
the wording of the statute, and on the dearth of evidence
presented at trial, it appears that the trial court exceeded
its discretion.
Gibson argues that the fact that she was making $425 per
week at the time she was injured, as documented by the
Employer's First Report of Injury filed by Dolgen, provides
justification for using the third method to calculate her
average weekly earnings. Gibson's brief at 24. She uses
Dolgen's entry in the Employer's First Report of Injury as
evidence of an average weekly salary of $425. That entry was
made in a section of the form that asked if the injured
employee had returned to work (yes), if so, the date
1060428
25
(8/24/1999), at what wage ($425), at what occupation (store
manager), length of time in the employment (9 months), length
of time in present job (9 months), average weekly wage ($425),
and whether the employee received full pay for day of injury
(yes). No evidence was presented to indicate the period for
which the "average weekly wage" was sought on the form.
Gibson's average weekly wage at the time of her injury was
$425, and that amount had been her average weekly wage since
she was promoted. It is incorrect to say that $425 was the
average weekly wage for the period of her total employment
when the overwhelming evidence presented to the trial court in
the form of payroll records shows otherwise. Gibson argues
that the entry on the Employer's First Report of Injury should
justify the decision of the trial court under the authority of
Garden City Heading Co. v. Thomas, 225 Ala. 273, 142 So. 534
(1932), a case that has been cited one time--in 1955. In
Garden City Heading Co., this Court affirmed the judgment of
the trial court, stating:
"[W]hile the time sheets and earnings as set out
upon the trial may have shown that the plaintiff had
not earned as much as $15 per week for the year
preceding the injury, yet the manager of the
defendant,
Kinser, reported to the 'Workmen's
Compensation Commission' that the average weekly
1060428
26
earnings of the plaintiff for the past 52 weeks was
$15 a week, and this was a fact or inference to
support the finding of the trial court."
225 Ala. at 273, 142 So. at 534. In Garden City Heading Co.
the manager testified to the $15 salary as being paid for the
preceding 52 weeks, and the trial court accepted his testimony
over the written records. However, at the time Garden City
Heading Co. was decided, the statute did not define the term
"average weekly earnings" as the current statute does. See §
7550(g), Ala. Code 1923. The current statute defines average
weekly earnings by reference to § 25-5-1(6), which provides
that "average weekly earnings [shall be] based on those
earnings subject to federal income taxation and reportable on
the Federal W-2 tax form ...." This would mean a retrospective
focus on actual earnings, rather than an annualized projection
of most recent earnings. Because the statute requires the use
of the income reportable on the federal W-2 tax form, use of
the information provided on the employer's First Report of
Injury is not an option.
Conclusion
The Court of Civil Appeals affirmed the trial court's
judgment on the basis that the determination of Gibson's
1060428
27
average weekly earnings should be left to the trial court's
sound judgment and judicial discretion. However, the exercise
of judicial discretion is based on facts and guided by law or
what is just and proper under the circumstances. In 1869,
Justice Peters of this Court discussed judicial discretion,
saying:
"In further illustration of what judicial
discretion ought to be, but not unfrequently is not,
I add an extract from an opinion, in a case of
national importance, by one of our country's
greatest men, and ablest and purest judges. Chief
Justice Marshall says: 'Courts are mere instruments
of the law, and can will nothing. When they are said
to exercise a discretion, it is a mere legal
discretion;
a
discretion
to
be
exercised
in
discerning the course prescribed by law; and when
that is discerned, it is the duty of the court to
follow it. Judicial power is never exercised for the
purpose of giving effect to the will of the judge;
always for the purpose of giving effect to the will
of the legislature; or, in other words, to the will
of the law.'-- Osburn v. United States Bank, [22
U.S.] 9 Wheat. 738, 866 [(1824)]."
Ex parte Chase, 43 Ala. 303, 311 (1869). Here, the statute
provides the course prescribed by law, giving effect to the
will of the legislature. It requires that in circumstances
such as those presented in this case the second method of
calculating average weekly earnings should be used, provided
that the results will be just and fair to both parties.
1060428
28
Deviation from the second method in favor of the third method
requires the documentation of a reasoned and valid finding
that the second method would not provide a result that is just
and fair to both parties. No such finding was provided in
this case; consequently, the decision of the Court of Civil
Appeals must be reversed and the matter remanded for
reconsideration in accordance with this opinion.
REVERSED AND REMANDED.
See, Lyons, Woodall, Stuart, Smith, and Bolin, JJ.,
concur in the result.
Cobb, C.J., dissents.
Murdock, J., recuses himself.
1060428
29
COBB, Chief Justice (dissenting).
Section
25-5-57(b),
Ala.
Code
1975,
provides,
in
pertinent part: "Where the employment prior to the injury
extended over a period of less than 52 weeks, the method of
dividing the earnings during that period by the number of
weeks and parts thereof during which the employee earned wages
shall be followed, provided results just and fair to both
parties will thereby by obtained." (Emphasis added.) Given
that Barbara Ann Gibson became a salaried employee upon her
promotion to a managerial position approximately two months
before she sustained her work-related injury, I cannot agree
with the main opinion that computing Gibson's average weekly
wage based on the entire sum of compensation she received
while employed at the Dollar General store provides a result
that is just and fair to both parties. I believe the Court
of Civil Appeals was correct in affirming the trial court's
judgment. I therefore respectfully dissent. | October 31, 2008 |
8768927d-257e-470c-b70a-1cb220e25604 | Thomas O'Troy Killings v. Enterprise Leasing Company, Inc. | N/A | 1070816 | Alabama | Alabama Supreme Court | REL: 11/21/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070816
____________________
Thomas O'Troy Killings
v.
Enterprise Leasing Company, Inc.
Appeal from Mobile Circuit Court
(CV-06-1654)
STUART, Justice.
After Thomas O'Troy Killings was injured in an automobile
accident in May 2004, he sued in the Mobile Circuit Court the
manufacturer of the van he was driving at the time of the
accident and various other entities that had performed
1070816
Killings
filed
a
worker's compensation
claim
against
CBIZ
1
that was settled in April 2006. That claim is not involved in
this appeal.
2
maintenance on that van. Enterprise Leasing Company, Inc.,
owned the van, and when it sold the wrecked van for scrap,
Killings added Enterprise Leasing as a defendant, claiming
that it had negligently allowed evidence crucial to his
pending action against the other defendants to be destroyed.
After the other defendants were dismissed from the case, the
trial court entered a summary judgment in favor of Enterprise
Leasing, and Killings appealed. We reverse and remand.
I.
On May 11, 2004, Killings was driving a 2001 Ford E-150
van on behalf of his employer, CBIZ Network Solutions, LLC,
when the van lost its right rear wheel while traveling
westbound on I-10 in Mobile. The loss of the wheel caused to
van to leave the roadway, and, in the ensuing accident,
Killings suffered injuries including a broken clavicle and a
broken thumb.
1
Following the accident, the wrecked van, which CBIZ had
been leasing from Enterprise Leasing, was taken to Duke's
Garage in Mobile. Several days later, Enterprise Leasing had
1070816
3
the van moved to Cockrell's Body Shop in Theodore. On June
21, 2004, Shane Lucado, an attorney retained by Killings,
telephoned Enterprise Leasing to request that the van be
preserved for investigative purposes. A follow-up letter sent
by Lucado to Enterprise Leasing the next day memorialized that
conversation, stating:
"Thank you for taking the time to speak with me
yesterday. As you are aware, the vehicle in which
Mr. Killings was riding in at the time of his
injuries is very important to our investigation.
Therefore,
as
I
stated
to
you
during
our
conversation, I would like to inspect the vehicle on
July 2, 2004.
"Additionally, let me take this opportunity to
cover the things I need to cover with regard to the
vehicle. I ask that you please do not change,
modify, discard, destroy, alter, sell, or remove
this vehicle from Cockrell's Body Shop without first
giving me notice of [your] intentions. If it
becomes necessary for you to change, modify,
destroy, or alter the vehicle in any way, please
notify
me
immediately
so
that
I
can
make
arrangements to preserve the evidence needed in my
investigation. If the subject vehicle is changed in
any manner which compromises the integrity of my
investigation, you may be liable for negligent
spoliation of evidence under Alabama law. See Brown
Electro
Mechanical
Systems,
Inc.
v.
Thompson
Engineering, et al., [848 So. 2d 238] (Ala. 2002)."
Subsequently, on July 2, 2004, Lucado and A.E. Carden, a
mechanical engineer he had hired, visited Cockrell's Body Shop
to inspect the van. On July 16, 2004, Lucado sent Enterprise
1070816
4
Leasing the following letter, notifying it that further
testing would likely be needed and again requesting that the
van be preserved:
"Please be advised that we need to perform
destructive testing on the van Mr. Killings was
driving at the time of his accident on May 11, 2004.
This testing may take several months to conduct. As
such, we need to keep the van in its present
condition. We ask that Enterprise Leasing not
change, modify, discard, destroy, alter, sell, or
remove this vehicle from Cockrell's Body Shop
without first giving me notice of its intentions.
If it becomes necessary for Enterprise Leasing to
change, modify, destroy, or alter the vehicle in any
way, please notify me immediately so that I can make
arrangements to preserve the evidence needed in my
investigation. If the subject vehicle is changed in
any manner which compromises the integrity of my
investigation, you may be liable for negligent
spoliation of evidence under Alabama law. See Brown
Electro
Mechanical
Systems,
Inc.
v.
Thompson
Engineering, et al., [848 So. 2d 238] (Ala. 2002).
"Should you have any questions, please feel free
to contact me."
Shortly thereafter, Lucado spoke with Jason Leone, a claims
representative from Cambridge Integrated Services, which was
representing Enterprise Leasing in connection with the
accident. In an affidavit, Lucado recalled that conversation
as follows:
"Mr. Leone said that he would like to have the
van inspected. I told Mr. Leone that it would be
1070816
5
fine to inspect the van, but that no destructive
testing could be done. Mr. Leone assured me that no
destructive testing would be done and that the van
would not be moved without first letting us know.
During the conversation, I explained that we were
investigating the cause of the axle breaking, that
we
had
inspected
the
van
and
that
we
were
investigating to determine whether there was a
manufacturing defect in the wheel bearing or whether
the van was improperly maintained or serviced. I
told Mr. Leone that it could take several years
before
doing
destructive
testing
because
any
potential defendants would have to be identified
before that testing could occur. I asked Mr. Leone
what Enterprise's role was in the maintenance and
service of the vehicle and explained that Enterprise
did not seem to be a target as a defendant. During
the conversation, Mr. Leone assured me that the van
would stay right where it was and would not be moved
without calling first and indicated that there would
be no problem leaving the van at Cockrell's. I then
received a letter from Mr. Leone indicating that an
engineer would be inspecting the van in early August
2004."
On May 10, 2006, Killings sued Ford Motor Company (the
manufacturer of the van), Dobbs Mobile Bay, Inc., d/b/a
Treadwell Ford (a Ford dealership that had performed
maintenance on the van), Firestone Tire & Service Center (an
automobile-repair shop that had also performed maintenance on
the van), BFS Retail and Commercial Operations, LLC (the
corporate parent of Firestone Tire & Service Center),
Bridgestone Americas Holding, Inc. (the corporate parent of
BFS Retail and Commercial Operations, LLC), and various other
1070816
6
fictitiously named parties in the Mobile Circuit Court.
Killings's lawsuit included a product-liability claim made
pursuant to the Alabama Extended Manufacturer's Liability
Doctrine ("AEMLD"), a breach-of-warranty claim, and various
negligence and wantonness claims. The discovery process
ensued, during which the trial court issued protective orders
at the request of both Ford and the Firestone defendants
prohibiting the parties, their representatives, or any other
persons from disposing of or materially altering the subject
van. Nevertheless, on November 27, 2006, Enterprise Leasing,
apparently unaware of those protective orders and without
giving notice to any of the parties, had the van transferred
to Manheim Auto Auction in Mississippi where it was sold for
scrap and subsequently destroyed. On approximately December
6, 2006, the parties discovered that the van had been moved
and destroyed.
On March 16, 2007, Killings amended his complaint to
include third-party spoliation claims against Enterprise
Leasing and Cockrell's Body Shop. The original defendants
then all moved to dismiss the claims against them and, on
March 23, 2007, Killings agreed to dismiss its claims against
1070816
A transcript of the January 11, 2008, hearing is not in
2
the record; however, Killings states in his appellate brief
that, at that hearing, the trial court denied both his motion
to continue and Enterprise Leasing's motion to strike.
7
all the original defendants except Ford. On June 15, 2007, a
hearing was held, after which the trial court dismissed the
claims against Ford and Cockrell's Body Shop, leaving only the
spoliation claim against Enterprise Leasing to be resolved.
On December 28, 2007, Enterprise Leasing moved for a
summary judgment, arguing that it had no duty to preserve the
van, especially for a period exceeding two and a half years,
that it had no knowledge that there was pending litigation
involving the van, and that the van was not vital to
Killings's case. The trial court scheduled a hearing on the
motion for January 11, 2008. On January 9, 2008, Killings
filed his response to Enterprise Leasing's motion and moved
the trial court to continue the scheduled hearing. On January
11, 2008, Enterprise Leasing moved the trial court to strike
Killings's response. The January 11, 2008, hearing was
ultimately held as scheduled, and, at its conclusion, the
trial court entered an order granting Enterprise Leasing's
motion for a summary judgment without stating its rationale.2
1070816
Enterprise Leasing served its summary-judgment motion on
3
December 28, 2007. When, as required by Rule 6(a), Ala. R.
Civ. P., Saturdays, Sundays, and legal holidays (here, New
Year's Day) are excluded, the January 11, 2008, hearing was
held only nine days after the filing of the motion.
8
On February 10, 2008, Killings filed a motion to alter,
amend, or vacate the trial court's judgment, arguing that the
trial court had erred both by entering a summary judgment in
favor of Enterprise Leasing and by failing to continue the
hearing
on
Enterprise
Leasing's
summary-judgment
motion
either
on the basis of Rule 56(c)(2), Ala. R. Civ. P., which requires
a hearing on a summary-judgment motion to be held at least 10
days after that motion is served, or pursuant to Rule 56(f),
Ala. R. Civ. P., which provides for a continuance so that the
opposing party can obtain additional evidence. On March 11,
3
2008, the trial court denied Killings's motion, and, on March
14, 2008, Killings filed his notice of appeal to this Court.
II.
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same
standard of review as the trial court applied.
Specifically, we must determine whether the movant
has made a prima facie showing that no genuine issue
of material fact exists and that the movant is
entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952-53 (Ala.
1070816
Enterprise
Leasing
argues that this Court
should
overrule
4
Smith and join the majority of states that do not recognize
third-party spoliation claims. In support of its argument, it
notes that a California case relied upon by the Smith Court,
Johnson v. United Services Automobile Ass'n, 67 Cal. App. 4th
626, 79 Cal. Rptr. 2d 234 (1998), was subsequently overruled.
However, as evidenced by Justice See's dissenting opinion in
Smith, this Court was already aware at the time Smith was
decided that California no longer recognized the tort of
spoliation of evidence either by a party or by a third party.
See Smith, 771 So. 2d at 440 (See, J., dissenting) ("Several
years after a California District Court of Appeal, in Smith v.
Superior Court, 151 Cal. App. 3d 491, 198 Cal. Rptr. 829
(1984), had become the first court to recognize the tort of
intentional spoliation of evidence by a third party, the
9
2004). In making such a determination, we must
review the evidence in the light most favorable to
the nonmovant. Wilson v. Brown, 496 So. 2d 756, 758
(Ala. 1986). Once the movant makes a prima facie
showing that there is no genuine issue of material
fact, the burden then shifts to the nonmovant to
produce 'substantial evidence' as to the existence
of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797-98 (Ala. 1989); Ala. Code 1975, § 12-21-12."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III.
In Smith v. Atkinson, 771 So. 2d 429, 432 (Ala. 2000),
this Court recognized that general principles of negligence
law afford an Alabama plaintiff a remedy when evidence crucial
to that plaintiff's case is lost or destroyed through the acts
of a third party. We further explained how a claim of
4
1070816
Supreme
Court
of
California
joined
the
majority
of
jurisdictions and held that California does not recognize the
tort of spoliation of evidence either by a party or by a third
party. See Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal.
4th 1, 954 P.2d 511, 74 Cal. Rptr. 2d 248 (1998); Temple
Community Hosp. v. Superior Court, 20 Cal. 4th 464, 976 P.2d
223, 84 Cal. Rptr. 2d 852 (1999)."). We decline to reconsider
Smith at this time.
10
spoliation of evidence against a third party fit within the
negligence framework:
"As in all negligence actions, the plaintiff in
a third-party spoliation case must show a duty to a
foreseeable plaintiff, a breach of that duty,
proximate causation, and damage. Crowne Invs., Inc.
v. Bryant, 638 So. 2d 873, 878 (Ala. 1994). We
announce today a three-part test for determining
when a third party can be held liable for negligent
spoliation of evidence. In addition to proving a
duty, a breach, proximate cause, and damage, the
plaintiff in a third-party spoliation case must also
show: (1) that the defendant spoliator had actual
knowledge of pending or potential litigation; (2)
that a duty was imposed upon the defendant through
a voluntary undertaking, an agreement, or a specific
request; and (3) that the missing evidence was vital
to the plaintiff's pending or potential action.
Once all three of these elements are established,
there arises a rebuttable presumption that but for
the fact of the spoliation of evidence the plaintiff
would have recovered in the pending or potential
litigation;
the
defendant
must
overcome
that
rebuttable presumption or else be liable for
damages."
Smith, 771 So. 2d at 432-33.
The trial court did not state for the record its
rationale for entering a summary judgment in favor of
1070816
11
Enterprise Leasing; however, in its motion for a summary
judgment, Enterprise Leasing argued that Killings's third-
party spoliation claim failed all three additional prongs of
the Smith test. In their briefs to this Court, both parties
primarily focus on whether Enterprise Leasing had a duty to
preserve the wrecked van, but they nevertheless address all
three prongs of the Smith test. Accordingly, we will consider
all three prongs in turn.
In regard to whether it had actual knowledge of
litigation involving the wrecked van, Enterprise Leasing does
not, on appeal, deny that it had knowledge of the action filed
by Killings; rather, it argues that Killings failed to present
substantial evidence of that fact. Specifically, Enterprise
Leasing argues that Killings submitted no evidence in
opposition to its motion for a summary judgment indicating
that Enterprise Leasing was ever informed that an action
involving the wrecked van had been filed at any time during
the approximately two-and-one-half-year period between the
date of the accident and the date the wrecked van was sold.
However, Enterprise Leasing overlooks the fact that Alabama
law requires only that the accused spoliator have "actual
1070816
Enterprise Leasing was apparently also served with a
5
subpoena by BFS Retail and Commercial Operations in October
2006, approximately a month before it sold the wrecked van.
However, Killings failed to introduce evidence of that
subpoena into the record until after the trial court had held
a hearing and had ruled on Enterprise Leasing's summary-
judgment motion. This evidence is partially the reason for
Killings's argument on appeal that the trial court erred by
denying his motion to continue the summary-judgment hearing.
However, because it is undisputed that Enterprise Leasing had
actual knowledge of potential litigation involving the wrecked
van, which is all the law requires, it is ultimately
irrelevant whether it had knowledge that litigation was
actually pending as well. Under these circumstances, the
assertion made by Justice Murdock in his dissent that
Enterprise Leasing had "no notice that a lawsuit had ever been
filed" is, at the least, misleading.
12
knowledge of pending or potential litigation." Smith, 771 So.
2d at 432 (emphasis added). Even if we accept that Enterprise
Leasing had no actual knowledge of Killings's action, it is
undisputed that Enterprise Leasing had actual knowledge that
there was the potential for litigation involving the wrecked
van; the two letters Lucado sent to Enterprise Leasing in June
and July 2004 are conclusive evidence of that fact.5
Moreover, although Enterprise Leasing highlights the lack of
communication by Killings after the period immediately
following
the
accident,
Killings
submitted
evidence
indicating
that Enterprise Leasing was apprised early on that the process
might take "several years." See affidavit of Shane Lucado,
1070816
13
quoted supra. Thus, Killings has established, at the very
least, that a genuine issue of material fact exists on this
point.
We next turn to whether Enterprise Leasing had a duty to
preserve the wrecked van. In Smith, we recognized that a
third party has no general duty to preserve evidence; however,
we recognized that such a duty may arise if: 1) the third
party voluntarily assumes the duty to preserve evidence; 2)
the third party agrees with the plaintiff that it will
preserve the evidence; or 3) the plaintiff makes a specific
request to the third party to preserve the evidence. 771 So.
2d at 433. In the present case, Killings argues that a duty
was established in both of the latter two ways –– Enterprise
Leasing agreed with Killings that it would preserve the
wrecked van and Killings made a specific request to Enterprise
Leasing to do so.
In an affidavit filed in response to Enterprise Leasing's
summary-judgment motion, Killings's attorney, Shane Lucado,
swore that, during a conversation with Enterprise Leasing's
claims representative, "[the representative] assured me that
the van would stay right where it was and would not be moved
1070816
14
without calling first." Additionally, two letters sent to
Enterprise Leasing by Killings's attorney also requested that
the wrecked van be preserved and stated that "[i]f it becomes
necessary for Enterprise Leasing to change, modify, destroy,
or alter the vehicle in any way, please notify me immediately
so that I can make arrangements to preserve the evidence
needed in my investigation."
Enterprise Leasing argues that Killings's request to
preserve the wrecked van was insufficient to create a duty
because the request was not accompanied by an offer to pay the
cost or otherwise bear the burden of preservation. See Smith,
771 So. 2d at 433 ("'The specific request to preserve must be
accompanied by an offer to pay the cost or otherwise bear the
burden of preserving. We do not think a tort duty to preserve
should be created simply by someone specifically requesting a
third party to preserve something.'" (quoting Johnson v.
United Servs. Auto. Ass'n, 67 Cal. App. 4th 626, 638, 79 Cal.
Rptr. 2d 234, 241 (1998))). Killings responds that his
attorney did offer to bear the burden of preservation when he
stated that he would "make arrangements to preserve the
evidence needed in [his] investigation" if it became necessary
1070816
Chief Justice Cobb and Justice Murdock, in their
6
dissents, emphasize that Enterprise Leasing had no duty to
preserve the wrecked van because Killings never offered to pay
it to do so. However, this Court made it clear in Smith that
the duty to preserve evidence can be imposed even in the
absence of such an offer if a defendant voluntarily undertakes
to do so or agrees with the plaintiff that it will do so. See
Smith, 771 So. 2d at 432 (stating that the duty to preserve
evidence can be "imposed upon the defendant through a
voluntary undertaking, an agreement, or a specific request"
(emphasis added)). Because Enterprise Leasing voluntarily
agreed to preserve the wrecked van, it took upon itself the
duty to do so, and Killings's failure to offer to pay the
associated storage costs is wholly irrelevant.
15
"for Enterprise Leasing to change, modify, destroy, or alter
the vehicle in any way." However, it is ultimately
unnecessary for us to determine whether Killings's request is
viewed as including an offer to bear the burden of
preservation because Enterprise Leasing has not refuted the
other evidence put forth by Killings indicating that it agreed
to preserve the wrecked van. By making that agreement,
Enterprise Leasing assumed the duty of preserving the van.
6
Once Enterprise Leasing assumed that duty, it is
ultimately of no import that approximately two and a half
years passed between the date of the accident and the date the
van was sold. Enterprise Leasing emphasizes this fact
throughout its brief to this Court, arguing that it had no
contact from Killings throughout most of that period and that
1070816
Killings argues that Enterprise Leasing's complaints
7
about the burden associated with preserving the wrecked van
are disingenuous and has submitted an affidavit from the
manager of Cockrell's Body Shop indicating that the wrecked
16
it is too onerous a burden for one to reasonably expect a
third party to preserve evidence for that length of time.
However, as discussed above, the evidence indicates that
Enterprise Leasing was apprised early on that the process
might take "several years" and that Enterprise Leasing
nevertheless agreed that "the van would stay right where it
was and would not be moved without calling first."
Moreover,
Enterprise
Leasing
initially
had
no
responsibility or duty whatsoever to preserve the wrecked van
after the accident. See Smith, 771 So. 2d at 433 ("If the
third party does not wish to take responsibility for evidence,
it can decline the responsibility, shifting the risk of loss
back to the plaintiff."). As a corollary to that principle,
Enterprise Leasing could have rid itself of that duty even
once it had assumed it by notifying Killings that it wished to
do so. It could not, however, unilaterally decide to shed
itself of that assumed duty without even attempting to provide
any notice to Killings, regardless of the length of time or
the burden involved.
7
1070816
van was being stored at not cost to Enterprise Leasing.
17
Last, we consider whether the missing evidence was vital
to Killings's underlying action. Among the evidentiary
material accompanying Killings's response to Enterprise
Leasing's motion for a summary judgment was an affidavit from
A.E. Carden, the mechanical engineer who examined the wrecked
van with Killings's attorney in July 2004. In that affidavit,
Carden stated:
"I was retained by M. Shane Lucado, attorney for
Thomas Killings for the purpose of determining the
cause of Mr. Killings accident that occurred in
Mobile on May 11, 2004. On July 2, 2004, I met Mr.
Lucado at the Cockrell Body Shop [sic] in Theodore,
Alabama, for the purpose of inspecting the vehicle
involved
in
this
accident,
a
Ford
van,
VIN
1FTRE14W01HB71346, Alabama License Plate 2B6705L.
Among other things, I visually inspected the
portions of the rear axle that [were] readily
visible, took several photographs, and samples. I
also read the accident report. Mr. Lucado had the
wheel-tire which had separated from the vehicle. I
subsequently prepared a preliminary reported for Mr.
Lucado (see copy attached). I am of the opinion
that this accident resulted from a major failure of
the right rear axle of the van, which caused the
right rear tire and wheel to separate from the
vehicle, resulting in loss of control and caused the
vehicle to roll over. The cause of this failure
(whether
by
improper
or
defective
design,
manufacture or maintenance) could only be determined
by further testing which never occurred because the
vehicle was disposed of."
1070816
18
(Emphasis added.) Enterprise Leasing argues that, because
Killings removed and presumably retains possession of the
right rear wheel, tire, and brake assembly of the wrecked van,
he could have continued to pursue his underlying claims;
therefore, it concludes, the van itself was not vital to
Killings's action. However, Enterprise Leasing has not
supported this argument with any evidence nor has it in any
way responded to Carden's affidavit stating the contrary.
Killings has therefore established the existence of a genuine
issue of material fact in regard to whether the missing
evidence was vital to Killings's underlying action.
IV.
Enterprise Leasing moved for a summary judgment on
Killings's third-party spoliation claim against it, arguing
that it had no knowledge of litigation involving the wrecked
van, that it had no duty to preserve the wrecked van, and that
the wrecked van was not vital to Killings's underlying claims.
Enterprise Leasing could have shown that it was entitled to a
summary judgment by establishing that there was no genuine
issue of material fact in regard to any of those three
arguments; however, it failed to do so. Killings put forth
1070816
19
evidence establishing at least a genuine issue of material
fact with regard to each argument; therefore, the summary
judgment was erroneous. It is hereby reversed and the case
remanded.
REVERSED AND REMANDED.
Lyons, Woodall, Smith, Bolin, and Parker, JJ., concur.
Cobb, C.J., and See and Murdock, JJ., dissent.
1070816
20
COBB, Chief Justice (dissenting).
The record in this case shows that it is undisputed that
no one on Thomas O'Troy Killings's behalf, including his
attorney, ever offered to pay Enterprise Leasing Company,
Inc., to store the van in such a way as to preserve it. Nor
was Enterprise Leasing kept informed as to whether litigation
involving the van was ever filed or the status of the
investigation, for over two years after Killings's initial
inspection of the van. This Court has held:
"'The
specific
request
to
preserve
must
be
accompanied by an offer to pay the cost or otherwise
bear the burden of preserving. We do not think a
tort duty to preserve should be created simply by
someone specifically requesting a third party to
preserve
something.
Preservation
may
entail
significant burdens.'"
Smith v. Atkinson, 771 So. 2d 429, 433 (Ala. 2000)(quoting
Johnson v. United Servs. Auto. Ass'n, 67 Cal. App. 4th 626,
627, 79 Cal. Rptr. 2d 234, 241 (1998)). Moreover, Killings's
communications
to
Enterprise
Leasing
concerning
the
likelihood
of the need for the evidence in question -- the van -- implied
that that need would be outstanding for a period of months
rather than two and one-half years. I believe that this
summary judgment is due to be affirmed because Killings cannot
1070816
21
show that Enterprise Leasing had a "duty," as defined in
Smith, to preserve the evidence in question. Therefore, I
respectfully dissent.
1070816
22
SEE, Justice (dissenting).
I dissent for the reasons stated in my dissent in Smith
v. Atkinson, 771 So. 2d 429, 438 (Ala. 2000) (See, J.,
dissenting).
1070816
23
MURDOCK, Justice (dissenting).
I respectfully dissent.
As a preliminary matter, I note that a duty cannot be
imposed upon Enterprise Leasing Company, Inc., on the basis of
the request made by Thomas O'Troy Killings unless that request
was "'"accompanied by an offer to pay the cost or otherwise
bear the burden of preserving [the evidence]."'" ___ So. 2d
at ___ (Cobb, C.J., dissenting) (quoting Smith v. Atkinson,
771 So. 2d 429, 433 (Ala. 2000), quoting in turn Johnson v.
United Servs. Auto. Ass'n, 67 Cal. App. 4th 626, 627, 79 Cal.
Rptr. 2d 234, 241 (1998)). In two letters written in the
summer of 2004, Killings's attorney requested that Enterprise
Leasing notify Killings before taking any action "to change,
modify, destroy, or alter the vehicle in any way" in order
that he could make arrangements to preserve any needed
evidence in such an event. I see nothing in these requests,
or in any other communication made on behalf of Killings, in
the way of an offer to pay the expenses of storage, either
before or after Enterprise Leasing might find it necessary to
"to change, modify, destroy, or alter" the vehicle.
1070816
24
More generally, it is my view that the extended duration
of the period between the last communication between the
parties in the summer of 2004 and the eventual removal of the
van from storage in late November 2006 -- a period of
approximately two and one-half years -- together with the lack
of any communication from Killings or his attorney during this
extended period, is inconsistent with the continued imposition
of a duty upon Enterprise Leasing.
In June 2004, shortly after the accident, Killings's
attorney wrote the first of two letters to Enterprise Leasing.
This first letter makes no mention of any time frame during
which Enterprise Leasing was being requested not to remove the
vehicle from Cockrell's Body Shop. The second of the two
letters, sent on July 16, 2004, stated only that any testing
that might be needed "may take several months to conduct."
According
to
an
affidavit
executed
by
Killings's
attorney, he had a conversation with a representative of
Enterprise Leasing shortly after he wrote the July 16, 2004,
letter, in which that representative assured the attorney that
"the van would not be moved without first letting us know."
Later in the same affidavit, the attorney also recalled that,
1070816
The main opinion makes mention of a subpoena supposedly
8
received by Enterprise Leasing in October 2006 and contends
that, "[u]nder these circumstances, the assertion made by
Justice Murdock in his dissent that Enterprise Leasing had 'no
notice that a lawsuit had ever been filed' is, at the least,
misleading." __ So. 2d at __ n.5. The only factual
25
during that same conversation, he told the representative of
Enterprise Leasing "that it could take several years before
doing destructive testing because any potential defendants
would have to be identified before that testing could occur."
Despite this conversation, the fact remains that Killings did
not file an action against Ford Motor Company or any other
defendant in relation to his accident until May 10, 2006,
almost two years after the last communication with Enterprise
Leasing. In addition, another six months passed before
Enterprise Leasing had the van transferred to an automobile
auction in Mississippi on November 27, 2006. During the
approximately two and one-half years following the last
communication between Killings's attorney and Enterprise
Leasing, Killings did not communicate with Enterprise Leasing.
Among other things, Killings did not inform Enterprise Leasing
that a lawsuit finally had been filed, nor did he notify
Enterprise Leasing of the protective orders entered by the
court in that lawsuit.8
1070816
"circumstances" the trial court could properly consider,
however, were those presented to it at the time it held a
hearing and issued a ruling on Enterprise Leasing's summary-
judgment motion. Serra Chevrolet, Inc. v. Edwards Chevrolet,
Inc., 850 So. 2d 259, 265 (Ala. 2002) (noting that on a motion
for a summary judgment "'the trial court can consider only the
material which is before it at the time of submission of the
motion'" (quoting Prudential Ins. Co. of America v. Coleman,
428 So. 2d 593, 598 (Ala. 1983))). In evaluating a summary
judgment, this Court is limited to the same evidence that was
presented to the trial court before its ruling on the summary-
judgment motion. See, e.g., Cleveland v. Central Bank of the
South, 574 So. 2d 741, 743 (Ala. 1990) (stating that this
Court "must review only those matters that were before the
trial court when it made its decision"). Neither the content
of any subpoena that might have been served upon Enterprise
Leasing in October 2006 nor any evidence that Enterprise
Leasing was even served with a subpoena was before the trial
court at the time of its ruling on Enterprise Leasing's
summary-judgment motion. Concomitantly, neither the content
of any subpoena nor any evidence as to whether any subpoena
was actually served on Enterprise Leasing is part of the
record this Court may properly consider on appeal.
26
Given the particular circumstances of this case --
including Killings's failure ever to offer to pay the expense
of storing the van, the particularly long delay of almost two
and one-half years between the last communication from
Killings's attorney and the eventual removal of the van from
storage by Enterprise Leasing, the failure of Killings to
maintain any communication with Enterprise Leasing during this
time and, in particular, the failure of Killings to apprise
Enterprise Leasing of the fact that Killings had, in fact,
1070816
27
finally proceeded with a lawsuit -- I believe the trial court
correctly concluded that Enterprise Leasing acted reasonably
and that it was not under a duty to continue storing the van
at the time it eventually decided to remove the van to
Mississippi, where it was sold as scrap and destroyed.
Although Killings's attorney did make a specific request
to Enterprise Leasing to preserve the van and Enterprise
Leasing, through its representative, did represent that it
would leave the van in its present location for an unspecified
period, I cannot conclude that any duty arising from these
facts should persist after an almost two-and-one-half-year
period during which Enterprise Leasing received no further
communications from Killings or his attorney and no notice
that a lawsuit had ever been filed. In this context, I
particularly disagree with the statement in the main opinion
that a third party, such as Enterprise Leasing, should, under
circumstances such as those presented here, continue to have
a duty to preserve evidence "regardless of the length of time
or the burden involved." __ So. 2d at __. A majority of
states other than Alabama do not extend a cause of action
against third parties for spoliation of evidence under any
1070816
28
circumstances, see ___ So. 2d at ___ n.4, much less
circumstances of the nature presented here.
Having said the foregoing (which is predicated on the
viability of the cause of action recognized in Smith v.
Atkinson), I would add that I am concerned, as is Justice See,
that the benefits of the cause of action recognized by the
Court in Smith "are outweighed by the burden to litigants,
witnesses, and the judicial system that would be imposed by
potentially endless litigation over a speculative loss."
Smith, 771 So. 2d at 441 (See, J., dissenting) (quoting
Temple Cmty. Hosp. v. Superior Court, 20 Cal. 4th 464, 478,
976 P.2d 223, 233, 84 Cal. Rptr. 2d 852, 862 (1999)). In my
opinion, this concern is validated by the fact that this cause
of action is to be applied to the circumstances presented in
a case such as this one. | November 21, 2008 |
0ff26fdc-34e2-4862-94b1-5bcf1b61321f | Petition Granted. Writ Issued Ex parte Gentiva Health Services, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Jerry Savage v. Gentiva Health Services, Inc., and Tracy Chaviers) | N/A | 1061805 | Alabama | Alabama Supreme Court | rel: 11/14/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061805
____________________
Ex parte Gentiva Health Services, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Jerry Savage
v.
Gentiva Health Services, Inc., and Tracy Chaviers)
(Shelby Circuit Court, CV-05-1018)
PER CURIAM.
Gentiva Health Services, Inc. ("Gentiva"), seeks a writ
of mandamus compelling the trial court to vacate its discovery
order requiring Gentiva to produce the resignation letter of
Tracy Chaviers, Gentiva's codefendant. Gentiva argues that
1061805
A wound vac is a technique of wound closure that is used
1
to promote healing in large wounds.
2
this letter is protected from discovery by § 6-5-551, Ala.
Code 1975, a part of the Alabama Medical Liability Act of
1987, § 6-5-540 et seq., Ala. Code 1975. Jerry Savage, the
plaintiff in the underlying action, argues that Gentiva is
procedurally barred from seeking mandamus relief from this
Court because it failed to file a motion for a protective
order before petitioning for the writ and because its petition
was not timely filed; Savage also argues that Chaviers's
resignation letter is not protected from discovery by § 6-5-
551. For the reasons stated below, we grant the petition and
issue the writ.
Facts and Procedural History
On June 17, 2005, Savage filed the underlying medical-
malpractice action against Gentiva and Chaviers. The
malpractice claim arises from the administration of home
health care to Savage during follow-up treatment for a
surgical procedure to remove a cyst from the back of Savage's
leg. Savage's doctor ordered that a wound vac be applied to
1
the surgical site following the surgery. On June 25, 2004, in
1061805
3
her capacity as a nurse and an employee of Gentiva, Chaviers
went to Savage's home to apply the wound vac. While examining
Savage's wound, Chaviers found that the wound was not open and
that it could not drain. Chaviers then telephoned Savage's
doctor for instructions as to how to proceed. According to
Savage, Chaviers misrepresented the doctor's instructions and
then proceeded to open the wound with a nonsterile instrument
and to pack the wound with gauze. Savage further alleges
that, because of Chaviers's actions, on June 26, 2004, he was
forced to undergo a surgical debridement of a post-operative
hematoma. Savage also alleges that at a drug screening on
July
9,
2004,
Chaviers
screened
positive
for
amphetamine/methamphetamine use.
On July 27, 2004, Chaviers resigned her employment with
Gentiva and submitted a letter setting forth her purported
reasons for resigning. This letter has been filed "under
seal" with this Court. Although critical of Gentiva, the
letter does not make any reference to Savage or to Chaviers's
alleged drug use. The letter does not cite any specific
instance of a patient's being injured as a result of lack of
proper care.
1061805
4
On June 17, 2005, Savage sued Gentiva and Chaviers,
alleging fraud, suppression, negligence, reckless and/or
wanton hiring and training, and breach of contract. Savage
requested production of Chaviers's personnel file, including
any documents related to her resignation. Initially, Gentiva
filed "objections and responses to [Savage's] requests for
production." On February 22, 2006, a hearing was held on all
pending discovery issues. On May 22, 2006, the trial court
ordered
Gentiva
to
produce
to
Savage
Chaviers's
personnel
file
up to the date that Chaviers provided treatment to Savage and
to produce to the court all other documents within her
personnel file for an in camera review. On July 20, 2006, the
trial court ordered Gentiva to produce the resignation letter
to Savage, but the court delayed the production of the letter
for 14 days "so that defendants may have an opportunity to
file written objection within said time period." On August 3,
2006, Gentiva filed a motion entitled "Motion to Reconsider
Order Requiring Production of Tracy Chaviers' 'Termination
Letter.'" On August 14, 2007, the trial court issued an order
that denied Gentiva's motion. The order also stated that
"production of the letter shall be withheld for 42 days to
1061805
5
afford [Gentiva and Chaviers] the opportunity to seek
appropriate review of this order pursuant to [Ala. R. App. P.]
Rule 21."
This petition for writ of mandamus was filed on September
21, 2007.
Standard of Review
"Mandamus
is
an
extraordinary
remedy
and
will
be
granted only where there is '(1) a clear legal right
in the petitioner to the order sought; (2) an
imperative duty upon the respondent to perform,
accompanied by a refusal to do so; (3) the lack of
another adequate remedy; and (4) properly invoked
jurisdiction of the court.' Ex parte Alfab, Inc.,
586 So. 2d 889, 891 (Ala. 1991). This Court will not
issue the writ of mandamus where the petitioner has
'"full and adequate relief"' by appeal. State v.
Cobb, 288 Ala. 675, 678, 264 So. 2d 523, 526 (1972)
(quoting State v. Williams, 69 Ala. 311, 316
(1881)).
"Discovery matters are within the trial court's
sound discretion, and this Court will not reverse a
trial court's ruling on a discovery issue unless the
trial court has clearly exceeded its discretion.
Home Ins. Co. v. Rice, 585 So. 2d 859, 862 (Ala.
1991). Accordingly, mandamus will issue to reverse
a trial court's ruling on a discovery issue only (1)
where there is a showing that the trial court
clearly exceeded its discretion, and (2) where the
aggrieved party does not have an adequate remedy by
ordinary appeal. The petitioner has an affirmative
burden to prove the existence of each of these
conditions.
"Generally, an appeal of a discovery order is an
adequate remedy, notwithstanding the fact that that
1061805
6
procedure may delay an appellate court's review of
a petitioner's grievance or impose on the petitioner
additional expense; our judicial system cannot
afford immediate mandamus review of every discovery
order. See Walker v. Packer, 827 S.W.2d 833, 842
(Tex.
1992)
('Mandamus
disrupts
the
trial
proceedings, forcing the parties to address in an
appellate court issues that otherwise might have
been resolved as discovery progressed and the
evidence was developed at trial.'). In certain
exceptional cases, however, review by appeal of a
discovery order may be inadequate, for example, (a)
when a privilege is disregarded, see Ex parte
Miltope Corp., 823 So. 2d 640, 644-45 (Ala. 2001)
('If a trial court orders the discovery of trade
secrets and such are disclosed, the party resisting
discovery will have no adequate remedy on appeal.')
.... The burden rests on the petitioner to
demonstrate that its petition presents such an
exceptional case -- that is, one in which an appeal
is not an adequate remedy. See Ex parte Consolidated
Publ'g Co., 601 So. 2d 423, 426 (Ala. 1992)."
Ex parte Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813-14 (Ala.
2003) (footnote omitted).
The exemption from discovery offered by § 6-5-551, Ala.
Code 1975, which prohibits a party in a medical-malpractice
action "from conducting discovery with regard to any other act
or omission," i.e., any act or omission other than the one
that allegedly renders the health-care provider liable, is
treated as a privilege for purposes of determining whether in
issuing the discovery order the trial court has disregarded a
privilege, thus warranting review of the discovery order by
1061805
7
way of a petition for a writ of mandamus. Ex parte Mendel, 942
So. 2d 829, 836 (Ala. 2006).
Discussion
Gentiva contends that Chaviers's resignation letter is
protected from discovery under § 6-5-551, Ala. Code 1975, and,
thus, that the trial court's discovery order should be
reviewed by a petition for a writ of mandamus. Savage
responds that Gentiva is procedurally barred from seeking
mandamus relief because, Savage alleges, Gentiva failed to
file a motion for a protective order before it petitioned this
Court for the writ and the petition was not timely filed.
Moreover, Savage further contends that the resignation letter
is not protected from discovery under § 6-5-551.
In Ex parte Orkin, Inc., 960 So. 2d 635 (Ala. 2006), this
Court "reaffirm[ed] the principle that 'the party seeking a
writ of mandamus in a discovery dispute must properly move for
a protective order under Rule 26(c), Ala. R. Civ. P.[, before
petitioning for the writ].'" 960 So. 2d at 640 (quoting Ex
parte CIT Commc'n Fin. Corp., 897 So. 2d 296, 298 (Ala.
2004)). This Court further stated that "[t]his sequencing
promotes the sound policy of 'afford[ing] the trial court the
1061805
8
opportunity to address its alleged error before a party seeks
mandamus relief from an appellate court to correct the alleged
error.'" Orkin, 960 So. 2d at 640 (quoting Ex parte Reynolds
Metals Co., 710 So. 2d 897, 900 (Ala. 1998)).
The requirements regarding a protective order are set
forth in Rule 26(c), Ala. R. Civ. P.:
"Upon motion by a party or by the person from whom
discovery is sought, and for good cause shown, the
court
in
which
the
action
is
pending
or
alternatively, on matters relating to a deposition
or production or inspection, the court in the
circuit where the deposition or production or
inspection is to be taken may make any order which
justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue
burden or expense, including one or more of the
following: (1) that the discovery not be had; (2)
that the discovery may be had only on specified
terms and conditions, including a designation of the
time or place; (3) that the discovery may be had
only by a method of discovery other than that
selected by the party seeking discovery; (4) that
certain matters not be inquired into, or that the
scope of the discovery be limited to certain
matters; (5) that discovery be conducted with no one
present except persons designated by the court; (6)
that a deposition after being sealed be opened only
by order of the court; (7) that a trade secret or
other
confidential
research,
development,
or
commercial information not be disclosed or be
disclosed only in a designated way; (8) that the
parties simultaneously file specified documents or
information enclosed in sealed envelopes to be
opened as directed by the court. A motion for a
protective order shall be accompanied by a statement
of the attorney for the moving party stating that
1061805
9
the attorney, before filing the motion, has
endeavored to resolve the subject of the discovery
motion through correspondence or discussions with
opposing counsel or, if the opposing party is not
represented by counsel, with the opposing party."
In the present case, Gentiva has sufficiently satisfied
the procedural requirement of filing a motion for a protective
order before it sought mandamus relief. Gentiva's motion to
"reconsider" the trial court's order requiring production of
Chaviers's resignation letter specifically sought to prohibit
discovery
of
Chaviers's
resignation
letter,
as
protected
under
§ 6-5-551, Ala. Code 1975, and the motion clearly afforded the
trial court the opportunity to address its alleged error
before Gentiva sought mandamus relief from this Court to
correct the alleged error. In substance, Gentiva's motion to
"reconsider" was actually a motion for a protective order. See
Pontius v. State Farm Mut. Auto. Ins. Co., 915 So. 2d 557,
562-63 (Ala. 2005) (noting that "[t]his Court will look at the
substance of a motion, rather than its title, to determine how
that motion is to be considered under the Alabama Rules of
Civil Procedure"). Therefore, Gentiva filed a motion for a
protective order before it petitioned this Court for the writ
of mandamus; thus, Gentiva is not procedurally barred from
1061805
10
seeking mandamus relief on the basis that it failed to file a
motion for a protective order.
Next, Savage argues that Gentiva's petition to this Court
was not timely filed. This argument is based on Savage's
mistaken belief that Gentiva failed to file a motion for a
protective order.
Rule 21(a)(3), Ala. R. App. P., provides:
"The petition [for the writ of mandamus] shall be
filed within a reasonable time. The presumptively
reasonable time for filing a petition seeking review
of an order of the trial court or of a lower
appellate court shall be the same as the time for
taking an appeal. If a petition is filed outside
this presumptively reasonable time, it shall include
a statement of circumstances constituting good cause
for the appellate court to consider the petition,
notwithstanding that it was filed beyond the
presumptively reasonable time."
Rule 4(a)(1), Ala. R. App. P., states that appeals as of right
shall be filed within 42 days of the judgment or order from
which relief is sought.
The presumptively reasonable time for filing a petition
for writ of mandamus in a case in which a motion for a
protective order has been filed begins to run on the date the
trial court denies the motion. Ex parte Nationwide Mut. Ins.
1061805
11
Co., [Ms. 1051502, March 7, 2008] ___ So. 2d ___, ___ (Ala.
2008); Orkin, 960 So. 2d at 640.
In the present case, Gentiva's petition for writ of
mandamus was filed within 42 days of the date the trial court
denied its motion to reconsider the trial court's order
requiring production of Chaviers's resignation letter but
beyond 42 days from the date the trial court issued the
initial order requiring Gentiva to produce the resignation
letter. As discussed earlier, Gentiva's motion was in
substance a motion for a protective order; thus, Gentiva's
petition for a writ of mandamus is timely because the
presumptively reasonable time for filing the petition did not
begin to run until the trial court ruled on the motion.
Finally, Gentiva contends that the trial court erred in
holding that § 6-5-551, Ala. Code 1975, does not protect
Chaviers's resignation letter from discovery. We agree.
Section 6-5-551, Ala. Code 1975, provides:
"In any action for injury, damages, or wrongful
death, whether in contract or in tort, against a
health care provider for breach of the standard of
care, whether resulting from acts or omissions in
providing health care, or the hiring, training,
supervision, retention, or termination of care
givers, the Alabama Medical Liability Act shall
govern the parameters of discovery and all aspects
1061805
12
of the action. The plaintiff shall include in the
complaint
filed
in
the
action
a
detailed
specification and factual description of each act
and omission alleged by plaintiff to render the
health care provider liable to plaintiff and shall
include when feasible and ascertainable the date,
time, and place of the act or acts. The plaintiff
shall amend his complaint timely upon ascertainment
of new or different acts or omissions upon which his
claim is based; provided, however, that any such
amendment must be made at least 90 days before
trial. Any complaint which fails to include such
detailed specification and factual description of
each act and omission shall be subject to dismissal
for failure to state a claim upon which relief may
be granted. Any party shall be prohibited from
conducting discovery with regard to any other act or
omission or from introducing at trial evidence of
any other act or omission."
(Emphasis added.)
In Ex parte Ridgeview Health Care Center, Inc., 786 So.
2d 1112 (Ala. 2000), this Court held:
"Section 6-5-551, as amended, makes it clear that in
an action against a health-care provider, based on
acts or omissions in the 'hiring, training,
supervision, retention, or termination of [the
health-care
provider's employees],'
the plaintiff is
entitled only to discovery concerning those acts or
omissions 'detailed specifica[lly] and factual[ly]
descri[bed]' in the complaint and 'alleged by [the]
plaintiff to render the health care provider liable
to [the] plaintiff.' Thus, if the plaintiff alleges
that the defendant health-care provider breached the
standard
of
care
by
negligently
training,
supervising, retaining, or terminating an employee
or by negligently entrusting an employee with an
instrumentality, then the plaintiff may discover
information only concerning those acts or omissions
1061805
13
by those employees whose conduct is detailed
specifically
and
factually
described
in
the
complaint as rendering the health-care provider
liable. Consequently, Hayes is not entitled to
discovery regarding acts or omissions by Ridgeview
in the hiring, training, supervising, retaining, or
terminating of employees other than those employees
whose acts he detailed specifically and factually
described in his complaint as rendering Ridgeview
liable."
786 So. 2d at 1116-17; see also Ex parte Coosa Valley Health
Care, Inc., 789 So. 2d 208, 218 (Ala. 2000) (holding that,
under § 6-5-551, a nursing-home resident, who alleged that the
nursing home was negligent, wanton, and/or willful and had
breached a contractual duty to provide adequate hiring,
training, and staffing of its personnel was not entitled to
discovery regarding acts or omissions by the nursing home in
hiring, training, and supervising employees other than those
employees who had provided care and/or services to the
resident).
In the present case, the acts or omissions specifically
set forth in Savage's complaint consist of the following: (1)
that
Chaviers
misrepresented
to
Savage
the
treatment
prescribed by Savage's doctor; (2) that Gentiva negligently
hired, retained, trained, and supervised Chaviers; (3) that
Chaviers
failed to obtain Savage's
informed
consent before
she
1061805
Without seeing the letter, Savage is under the impression
2
that the resignation letter contains information concerning
only the conduct of Chaviers and the provision of medical care
to Savage. Savage's brief at p. 18. However, the letter
simply does not contain this information. As a practical
matter, this petition is a dispute over the discovery of
material that appears to be largely irrelevant to the
underlying claims.
14
performed a medical procedure on him; (4) that Gentiva and
Chaviers
breached
the
acceptable standard of care in providing
medical services to Savage; (5) that Gentiva and Chaviers
breached an implied contract to provide adequate medical
services to Savage; and (6) that Chaviers allegedly was using
illegal drugs when she was working for Gentiva and Gentiva
knew or should have known about this drug use. Chaviers's
resignation
letter
does
not
contain
any
information
concerning
any of the alleged acts or omissions set forth in the
complaint. The letter does not make any reference to anything
associated with Savage's care, to Chaviers's training or
supervision, or to Chaviers's alleged drug use. Furthermore,
the letter does contain information regarding alleged acts or
omissions by Gentiva in the hiring, training, and supervising
of employees other than Chaviers. Therefore, based on prior
2
decisions of this Court and a plain reading of § 6-5-551, Ala.
1061805
15
Code 1975, we conclude that Savage is prohibited from
obtaining
Chaviers's
resignation
letter
through
discovery
and,
thus, that Gentiva has a clear legal right to have the trial
court's discovery order vacated.
Conclusion
Gentiva
sufficiently
satisfied
the
procedural
requirement
of filing a motion for a protective order before seeking
mandamus relief in this Court. Also, Gentiva's petition for
the
writ
of
mandamus
was
timely
filed
because
the
presumptively reasonable time for filing the petition did not
begin to run until the trial court ruled on Gentiva's motion
for a protective order. Finally, the trial court erred in
holding that § 6-5-551, Ala. Code 1975, does not protect
Chaviers's
resignation
letter
from
discovery.
The
resignation
letter does not contain information concerning any of the
alleged acts or omissions set forth by Savage in the
complaint. Furthermore, the letter does contain information
regarding other alleged acts or omissions by Gentiva; thus,
discovery of the letter is prohibited under § 6-5-551, Ala.
Code 1975.
PETITION GRANTED; WRIT ISSUED.
1061805
16
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,
Bolin, Parker, and Murdock, JJ., concur. | November 14, 2008 |
ce6359af-af2c-46c0-9ba5-ed46dda5de03 | Marty Thompson, administrator of the estate of Peggy Sue Ellis v. Rita W. Patton, M.D., and Frank Kay Psychiatric Clinic | N/A | 1061540 | Alabama | Alabama Supreme Court | REL: 10/10/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1061540
____________________
Marty Thompson, administrator of the estate of Peggy Sue
Ellis
v.
Rita W. Patton, M.D., and Frank Kay Psychiatric Clinic
Appeal from Jefferson Circuit Court
(CV-01-7153)
SMITH, Justice.
Marty Thompson, administrator of the estate of Peggy Sue
Ellis, appeals from a judgment entered in favor of Dr. Rita W.
1061540
2
Patton and her employer, Frank Kay Psychiatric Clinic ("the
Clinic"). We affirm.
Facts and Procedural History
This is the second time this case has come before this
Court. See Patton v. Thompson, 958 So. 2d 303 (Ala. 2006).
The following facts and procedural history as summarized in
Patton are relevant to this appeal:
"Peggy Sue Ellis suffered from and had been
treated for a serious psychiatric illness for
approximately 30 years when she was admitted to
Baptist
Medical
Center
Montclair
(hereinafter
'BMCM') on November 11, 1999. She had previously
been hospitalized for management of her psychiatric
illness, and she had a history of suicide attempts.
Before her November 11, 1999, admission, Ellis had
been admitted three times to BMCM in 1999 for
management of her psychiatric illness. Dr. Patton
was Ellis's physician during all of her admissions
in 1999.
"Ellis was admitted to BMCM on November 11,
1999, following a suicide attempt. Dr. Patton
prescribed Seroquel, a psychotropic agent used to
treat schizophrenia. Ellis was placed on a suicide
watch in the hospital; the watch continued during
her hospital stay. Her condition waxed and waned
during her stay. Her condition regressed from
November 18 to November 19, and the dosage of her
medication was increased. On November 22, 1999,
when Ellis was asked whether she would hurt herself,
she replied 'I hope not.' That same day, Ellis
stated that she was scared and worried, and she
showed signs of paranoia and unreasonable fears
regarding her family. She also stated that she was
anxious about being discharged the next day.
1061540
3
"Ellis was discharged on November 23, 1999, with
a discharge plan formulated by Dr. Patton. The plan
included: (1) a follow-up appointment with Ellis's
therapist at the Eastside Mental Health Center for
the next morning; (2) arrangements for daily visits
by a home-health psychiatric nurse to monitor
Ellis's mental state and to monitor compliance with
the prescribed medication; and (3) help from Ellis's
cousin in monitoring compliance with the prescribed
medication.
"On November 24, 1999, Ellis went to the
Eastside Mental Health Center, where she was
evaluated by her therapist. The therapist noted
that Ellis had been unable to fill her prescription
for Seroquel and that she was confused about her
medications, obsessed with psychotic thoughts, and
frightened and that she had an 'inappropriate and
blunted affect.' Dr. Patton was unaware that Ellis
had not been able to fill her prescription. On
November 26, 1999, Ellis was found dead in her
apartment
of
a
drug
overdose.
The
coroner
determined that the manner of death was suicide. At
the time of her death, Ellis was 53 years old.
"On November 19, 2001, Marty Thompson, as
administrator of Ellis's estate, sued Dr. Patton and
the Clinic, alleging wrongful death under the
Alabama Medical Liability Act, § 6-5-480 et seq. and
§ 6-5-541 et seq., Ala. Code 1975 ('the AMLA').
Thompson alleged that Dr. Patton had breached the
standard of care by discharging Ellis from the
hospital
prematurely, failing to formulate an
appropriate outpatient-treatment plan, failing to
readmit Ellis to a psychiatric unit, and failing to
implement proper suicide precautions.
"At trial on March 19, 2004, Dr. Nathan Strahl,
a psychiatrist, testified as an expert witness for
1061540
Relevant
portions
of
Dr.
Strahl's
testimony
are
1
reproduced later in this opinion.
4
Thompson.
...
[1]
"'....'
"Dr. Patton and the Clinic moved for a judgment
as a matter of law at the close of Thompson's case,
which the trial court denied. Dr. Patton and Dr.
Joseph Lucas, a psychiatrist, testified for the
defense. Dr. Patton and the Clinic again moved for
a judgment as a matter of law at the conclusion of
all the evidence. The trial court denied the
motion. The jury was unable to reach a verdict, and
the trial court declared a mistrial. Dr. Patton and
the Clinic filed a motion entitled 'Defendants' Rule
50(b)[, Ala. R. Civ. P.,] Renewed Motion for a
Judgment as a Matter of Law, or, Alternatively
Styled, Motion for a Summary Judgment.' In that
motion, they argued that Thompson failed to meet his
burden of producing sufficient evidence to prove
that Dr. Patton's alleged negligence was the
proximate cause of Ellis's death. The trial court
denied the motion ...."
958 So. 2d at 304-06.
In its order denying Dr. Patton and the Clinic's motion,
the trial court concluded "'that [Thompson] has proffered
sufficient evidence that a genuine issue of material fact
exists, so as to allow this case to proceed to trial.'" 958
So. 2d at 306. Relying on the decisions of this Court in
Keeton v. Fayette County, 558 So. 2d 884 (Ala. 1989), and
Keebler v. Winfield Carraway Hospital, 531 So. 2d 841 (Ala.
1061540
5
1988), the trial court held that Thompson's evidence regarding
the foreseeability of Ellis's suicide was also sufficient to
create a genuine issue of fact as to whether Dr. Patton's
alleged negligence proximately caused Ellis's death. Patton,
958 So. 2d at 306. The trial court then certified, for a
permissive appeal to this Court under Rule 5, Ala. R. App. P.,
the following controlling question of law:
"'The controlling question of law is the degree
of proof necessary to establish the essential
element
of
proximate
causation
in
a
medical
malpractice/wrongful
death
action
against
a
psychiatrist for the suicide of that psychiatrist's
patient and whether the plaintiff in this case has
met that requisite degree of proof.'"
958 So. 2d at 304.
In Patton, this Court noted that "the record support[ed]
the trial court's findings in its order that Dr. Patton knew
that Ellis had suicidal proclivities and that she was aware
that Ellis had manifested suicidal proclivities during her
last hospitalization," and Thompson argued that "he [had]
established proximate cause by presenting evidence of Ellis's
suicidal proclivities, in accordance with Keebler." 958 So.
2d at 311. However, this Court stated that Thompson's
reliance on Keebler and Keeton was misplaced, because those
1061540
6
decisions addressed "the duty owed, based upon the presence or
absence of the foreseeability of suicide, rather than the
proximate-causation issue presented by the trial court in the
controlling question here." Patton, 958 So. 2d at 309
(emphasis added). Accordingly, this Court concluded:
"The
trial
court
in
its
order
denying
the
defendants' motion for a judgment as a matter of law
blurred
the
distinction between the different
elements necessary to establish medical malpractice
when it stated, based on Keebler and Keeton:
'Alabama law bases proximate causation in suicide
cases on the foreseeability of the decedent's
suicide.' However, the answer to the first part of
the controlling question is that the plaintiff in
any
medical-malpractice
action,
including
medical-malpractice/wrongful-death actions against
a psychiatrist resulting from the suicide of that
psychiatrist's patient, must prove by substantial
evidence
that
the
psychiatrist
breached
the
applicable standard of care and that that breach was
a proximate cause of the patient's injuries."
958 So. 2d at 312.
Noting that "'"the question of proximate cause is almost
always a question of fact,"'" however, this Court refused to
answer that part of the question certified by the trial court
asking "whether Thompson met the burden of proof in this case
regarding proximate cause." 958 So. 2d at 312 (quoting Norris
v. City of Montgomery, 821 So. 2d 149, 155 (Ala. 2001),
quoting in turn Lemond Constr. Co. v. Wheeler, 669 So. 2d 855,
1061540
7
862 (Ala. 1995)). This Court stated that "'Rule 5[, Ala. R.
App. P.,] is not a vehicle by which to obtain review of
"significant and unresolved factual issues."'" 958 So. 2d at
312 (quoting Gowens v. Tys. S., 948 So. 2d 513, 530 (Ala.
2006), quoting in turn Spain v. Brown & Williamson Tobacco
Corp., 872 So. 2d 101, 104 (Ala. 2003) (emphasis added in
Gowens)).
After this Court's decision in Patton, Dr. Patton and the
Clinic filed another motion entitled "Rule 50(b) Renewed
Motion for Judgment as a Matter of Law or, Alternatively
Styled, Motion for Summary Judgment." Dr. Patton and the
Clinic again argued that Thompson had failed to offer
sufficient evidence of proximate cause.
The trial court granted Dr. Patton and the Clinic's
motion and entered a judgment against Thompson on June 26,
2007. The trial court held that expert testimony was required
to establish proximate causation in Thompson's case because,
the trial court held, the issue was "beyond the ken of the
layman in his common knowledge and experience." The trial
court concluded that the expert testimony of Dr. Nathan
Strahl, the psychiatrist who testified as Thompson's expert
1061540
8
witness, was not substantial evidence suggesting that Dr.
Patton's alleged negligence probably caused Ellis's suicide.
Thompson timely appealed to this Court.
Standard of Review
The trial court, in its order granting Dr. Patton and the
Clinic's motion, did not state whether it was treating the
motion as a renewed motion for a judgment as a matter of law
under Rule 50(b), Ala. R. Civ. P., or as a motion for a
summary judgment under Rule 56, Ala. R. Civ. P. In either
case, our review of the sufficiency of the evidence of
proximate causation, as well as the trial court's application
of law in making its causation determinations, is de novo.
See Leiser v. Raymond R. Fletcher, M.D., P.C., 978 So. 2d 700,
705-06 (Ala. 2007), in which this Court quoted the following
from Waddell & Reed, Inc. v. United Investors Life Insurance
Co., 875 So. 2d 1143, 1152 (Ala. 2003):
"'When reviewing a ruling on a motion for a
[judgment as a matter of law], this Court uses the
same standard the trial court used initially in
deciding whether to grant or deny the motion for a
[judgment as a matter of law]. Palm Harbor Homes,
Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997).
Regarding questions of fact, the ultimate question
is whether the nonmovant has presented sufficient
evidence to allow the case to be submitted to the
jury for a factual resolution. Carter v. Henderson,
1061540
9
598 So. 2d 1350 (Ala. 1992). The nonmovant must
have presented 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 Assurance 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, 598 So. 2d 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.'"
See also Parrish v. Blazer Fin. Servs., Inc., 868 So. 2d 406,
409 (Ala. 2003) (de novo review of a summary judgment); Driver
v. National Sec. Fire & Cas. Co., 658 So. 2d 390, 392 (Ala.
1995) (de novo review of a directed verdict/judgment as a
matter of law); Alfa Life Ins. Co. v. Hughes, 861 So. 2d 1088,
1094 (Ala. 2003) (de novo review of the trial court's
application of legal standards in reaching its decision).
Discussion
I.
Thompson first argues that the expert testimony of Dr.
Strahl provided substantial evidence that Dr. Patton's alleged
negligence in discharging Ellis from the hospital proximately
caused Ellis to commit suicide.
1061540
10
In Patton, this Court stated:
"[Thompson] must prove, generally through expert
testimony, that there was an applicable standard of
care, that Dr. Patton breached that standard, and
that the breach was a proximate cause of Ellis's
injuries. Lyons v. Walker Reg'l Med. Ctr., 791 So.
2d 937 (Ala. 2000). With regard to proximate cause,
1
this Court has stated:
"'A plaintiff in a medical-malpractice
action must also present expert testimony
establishing a causal connection between
the
defendant's
act
or
omission
constituting the alleged breach and the
injury suffered by the plaintiff. Pruitt
v. Zeiger, 590 So. 2d 236, 238 (Ala. 1991).
See also Bradley v. Miller, 878 So. 2d 262,
266 (Ala. 2003); University of Alabama
Health Servs. Found., P.C. v. Bush, 638 So.
2d 794, 802 (Ala. 1994); and Bradford v.
McGee, 534 So. 2d 1076, 1079 (Ala. 1988).
To prove causation in a medical-malpractice
action, the plaintiff must demonstrate
"'that the alleged negligence probably
caused, rather than only possibly caused,
the plaintiff's injury.'" Bradley, 878 So.
2d at 266 (quoting University of Alabama
Health Servs., 638 So. 2d at 802). See
also DCH Healthcare Auth. v. Duckworth, 883
So. 2d 1214, 1217 (Ala. 2003)("'There must
be more than the mere possibility that the
negligence complained of probably caused
the injury.'" (quoting Parker v. Collins,
605 So. 2d 824, 826 (Ala. 1992))); and
Pendarvis v. Pennington, 521 So. 2d 969,
970 (Ala. 1988)("'The rule in medical
malpractice
cases
is
that
to
find
liability, there must be more than a mere
possibility
among
others
that
the
negligence complained of caused the injury;
there must be evidence that the negligence
1061540
11
probably caused the injury.'" (quoting
Williams v. Bhoopathi, 474 So. 2d 690, 691
(Ala. 1985), and citing Baker v. Chastain,
389 So. 2d 932 (Ala. 1980))).'
"Sorrell v. King, 946 So. 2d 854, 862 (Ala. 2006).
"_______________
" The [Alabama Medical Liability Act, § 6-5-480
1
et seq. and § 6-5-541 et seq., Ala. Code 1975 ('the
AMLA')] provides that in any medical-malpractice
action 'the plaintiff shall have the burden of
proving by substantial evidence' that the health-
care provider failed to exercise the requisite care,
skill, and diligence, § 6-5-548(a), and that 'the
minimum standard of proof required to test the
sufficiency of the evidence to support any issue or
fact shall be proof by substantial evidence.' § 6-
5-549. The legislature, in 1996, added the
following sentence to § 6-5-549: 'In the case of a
jury trial, the jury shall be instructed that in
order to return a verdict against a health care
provider, the jury shall be reasonably satisfied by
substantial evidence that the health care provider
failed to comply with the standard of care and that
such failure probably caused the injury or death in
question.' Act No. 96-511, § 3, Ala. Acts 1996
(emphasis added). A jury in a medical-malpractice
case now must be instructed that it can return a
verdict for the plaintiff only if the plaintiff has
proven his case by substantial evidence. See
Edgeworth v. Family Chiropractic & Health Ctr.,
P.C., 940 So. 2d 1011 (Ala. 2006) (discussing the
1996 amendment to the AMLA)."
Patton, 958 So. 2d at 311-12.
Thompson cites the following from Dr. Strahl's testimony
at trial:
1061540
12
"Q. ... In your opinion, given your review of
the records and your understanding of Ms. Ellis's
condition on 11/23/99, was there a probability that
she would attempt suicide or self harm if she was
released from the hospital?
"....
"A. That was a probability. The probability
increases the more factors that she would carry
leaving the hospital that are risk factors for
suicide.
"Q. And did Ms. Ellis possess many of these risk
factors?
"A. She did.
"Q. Was it highly probable?
"A. It was highly probable that she might do
something to herself, yes.
"Q. Doctor, in your opinion, should a treating
psychiatrist, given what we know and what you have
reviewed about Ms. Ellis, exercising reasonable
care, diligence and skill have recognized this
probability that you just testified to?
"A. I would think so, yes, sir.
"....
"Q. I think you just answered my next question,
but I want to ask it so the record is clear.
Strictly concerning this discharge which you have
criticized today, given the facts and circumstances
that you're aware of in Ms. Ellis's condition on
11/22/99, what would be the standard of care or what
would the standard of care have dictated on the date
concerning discharge?
1061540
13
"A. In my medical opinion, with the night
before,
the
statements
about
'I
hope
so,'
reservations about not being suicidal, the continued
psychotic features, I would be very concerned about
discharge. Usually, the record shows some anxiety
typically prior to discharge. I would not count
that as a negative factor. Most patients would have
some anxiety about leaving. But here we're having
clear indication of psychotic symptoms and concerns
that she voiced last night about being able to take
care of herself in terms of safety. I think based
on those two things, hospitalization [sic] is a bit
premature.
"Q. Doctor, did Ms. Ellis's discharge fall below
the recognized standard of care for a psychiatrist?
"A. In my medical opinion, it did.
"....
"Q. Doctor, do you have an opinion as to whether
suicide was an eminent potential given Ms. Ellis's
release on November 23, 1999?
"A. Yes.
"Q. And what is that opinion?
"A. That it was."
Thompson
contends
that
that
testimony
provides
substantial evidence indicating that Dr. Patton's alleged
negligence in releasing Ellis from the hospital proximately
caused her to commit suicide. We disagree.
At most, Dr. Strahl's testimony is substantial evidence
indicating that when Ellis was discharged from the hospital on
1061540
14
November 23, 1999, it was reasonably foreseeable to Dr. Patton
that there was a "probability" that Ellis "would attempt
suicide or self harm" or that it was "highly probable that she
might do something to herself" or that suicide was "an eminent
potential." That evidence, along with Dr. Strahl's testimony
that Dr. Patton's decision to discharge Ellis fell below the
standard of care, creates a question of fact as to whether Dr.
Patton breached the standard of care.
That evidence, however, shows only that there was a
unquantitative probability that Ellis might possibly attempt
suicide or self harm. Under Alabama law, evidence showing
only a probability of a possibility is not sufficient to
establish proximate causation in a negligence action alleging
medical malpractice. See Levesque v. Regional Med. Ctr. Bd.,
612 So. 2d 445, 448 (Ala. 1993) (quoting Hannon v. Duncan, 594
So. 2d 85, 91 (Ala. 1992) ("'The rule of our cases in
malpractice suits is that there must be something more than a
mere possibility--something more than one possibility among
others--that the negligence complained of was the cause of the
injury. There must be some evidence to the effect that such
negligence probably caused the injury....'")).
1061540
15
In Levesque, a plaintiff in a medical-malpractice action
contended that the defendant doctor had acted negligently in
delivering the plaintiff's child at birth, which, the
plaintiff alleged, caused the child to suffer injuries. As to
the element of proximate causation, this Court noted:
"The plaintiff
asserts
that
certain
testimony
by
Dr. Engel, one of her experts, establishes the
proximate causation element. She specifically
relies on the following exchange between her
attorney and Dr. Engel in an offer of proof:
"'Q. The question, Dr. Engel, would
be: Based on your education, training, and
experience, would you describe to us if you
have an opinion as to a reasonable medical
certainty that could generalized seizure
disorders be caused by the actions or
inactions of Dr. Victoria during the labor
and delivery of [the child] based on ...
the criticisms that you told us about in
relationship to your opinions in the
delivery of [the child]?
"'A. I believe in--the answer is yes.
In all medical probability.'
"(Emphasis added.) The ensuing questions concerning
[the child's] conditions of hemiparesis and optic
nerve hypoplasia were phrased in exactly the same
manner; Dr. Engel responded 'yes, in all medical
probability' to each of the questions."
612 So. 2d at 448. This Court in Levesque stated that, even
assuming that Dr. Engel was
"qualified as an expert on the causation issue, the
1061540
In his special writing concurring in the result, Justice
2
Murdock asserts that, by reading Dr. Strahl's opinion that
"[i]t was highly probable that [Ellis] might do something to
herself" to mean what it literally says (i.e., that it was
highly probable that Ellis might do something to herself), we
are imposing too strict "a standard of precision in the oral
use of the English language," ___ So. 2d at ___--a standard he
contends is neither appropriate nor required as a matter of
law. However, Levesque, which like the present case involved
an expert's oral testimony, illustrates that there is an
important
legal
difference
between testimony that the
negligence complained of probably caused the injury and
testimony that the negligence complained of probably could
have or possibly caused the injury.
The expert's testimony at issue in Giada v. Tucker, 746
So. 2d 998 (Ala. 1999), the primary case upon which Justice
Murdock relies, was not that "it is most likely probable that
blindness might not have occurred"; the testimony instead was
"'it is most likely probable that blindness would not have
occurred,'" 746 So. 2d at 1000 (emphasis added). In the
present case, however, the testimony from Dr. Strahl was not
that "[i]t was highly probable that [Ellis] would do something
to herself"; rather, Dr. Strahl testified that "it was highly
probable that [Ellis] might do something to herself" (emphasis
added).
Significantly, the scintilla rule of evidence applied in
3
Levesque to test the sufficiency of evidence of proximate
causation. Levesque, 612 So. 2d at 448. In 1987, the
legislature abolished the scintilla rule in actions filed
16
plaintiff's claim would still fail, because Dr.
Engel was unable to testify that acts or omissions
of Dr. Victoria probably caused Anthony's injuries.
The questions posed to Dr. Engel elicited only the
answer that Dr. Victoria's actions probably could
have caused the injuries; this answer falls short
when measured by the standard by which evidence of
proximate causation is tested."
2
612 So. 2d at 449.
3
1061540
after June 11, 1987, against health-care providers based on a
breach of the standard care. § 6-5-549, Ala. Code 1975. The
sufficiency of evidence in such actions against health-care
providers filed after June 11, 1987, is tested by the
substantial-evidence standard. § 6-5-549.
17
In the present case, Dr. Strahl's testimony quoted above
does not suggest that Dr. Patton's decision to discharge Ellis
probably caused Ellis to commit suicide. Dr. Strahl's
testimony does not suggest "a causal connection between [Dr.
Patton's] act or omission constituting the alleged breach and
the injury suffered by [Ellis.]" Sorrell v. King, 946 So. 2d
854, 862 (Ala. 2006) (emphasis added). His testimony does not
suggest that Dr. Patton's alleged negligence "probably caused,
rather than only possibly caused, the plaintiff's injury" or
that there is anything "more than the mere possibility that
the negligence complained of probably caused the injury."
Sorrell, 946 So. 2d at 862 (quotation marks and citations
omitted).
Although
Dr. Strahl's testimony is evidence
indicating that Dr. Patton's alleged negligence in discharging
Ellis could have possibly caused Ellis's suicide, evidence
that a health-care provider's alleged negligence possibly
caused an injury is not substantial evidence of proximate
causation under Alabama law. Sorrell, 946 So. 2d at 862;
1061540
As noted, the day after her discharge from the hospital,
4
Ellis went to a mental-health center for treatment; at that
time, Ellis had not filled her prescription for--and had
missed two doses of--Seroquel, the medication Dr. Patton had
prescribed for her. Dr. Patton was never informed that Ellis
had been unable to fill her prescription. In addition to Dr.
Strahl's failure to testify that Dr. Patton's alleged
negligence probably caused Ellis's suicide, the trial court's
order entering a judgment in favor of Dr. Patton and the
Clinic noted that Dr. Strahl testified that those events
occurring after Ellis's discharge from the hospital compounded
any effect of Dr. Patton's decision to discharge Ellis from
the hospital.
18
Levesque, 612 So. 2d at 448-49.4
Thompson next cites the following from Dr. Strahl's
testimony at trial:
"Q: Doctor, do you have an opinion as to whether
the early release of Peggy Sue Ellis by Dr. Patton
was the proximate cause of her death?
"A: Well, certainly."
At that point in Dr. Strahl's testimony, counsel for Dr.
Patton and the Clinic objected on the basis that the testimony
"invade[d] the province of the jury," and the trial court
sustained that objection. Later in Dr. Strahl's testimony,
the following exchange occurred:
"Q. And do you have an opinion about whether her
release directly led [to] and caused her death?
"A. Yes, I do.
"Q. And what is that opinion?
1061540
19
"[Counsel for Dr. Patton and the Clinic]:
Excuse me. I believe that invades the province of
the jury as well, Your Honor. I object.
"THE COURT: What was the question?
"(Record read.)
"THE COURT: I'll sustain based on the way the
question was asked."
Thompson asserts that Dr. Patton and the Clinic "invited
error by objecting to direct questioning of Dr. Strahl
concerning causation," because, Thompson contends, "[e]xperts
are permitted to draw conclusions regarding causation." Dr.
Patton and the Clinic, however, argue that the doctrine of
invited error is inapplicable.
As Dr. Patton and the Clinic point out, the doctrine of
invited error "provides that a party may not complain of error
into which he has led the court." Ex parte King, 643 So. 2d
1364, 1366 (Ala. 1993) (citing Aetna Life Ins. Co. v. Beasley,
272 Ala. 153, 157, 130 So. 2d 178, 182 (1961)). In the
present case, the parties alleged to have invited the error
(Dr. Patton and the Clinic) are not seeking to have the
judgment of the trial court reversed on the basis of that
alleged error; instead, it is Thompson who argues that the
trial court erred. Consequently, the doctrine of invited
1061540
20
error is not applicable against Dr. Patton and the Clinic in
the present case.
Additionally, we agree with Dr. Patton and the Clinic's
contention that, because Thompson made no offer of proof as to
the substance of what Dr. Strahl's testimony would have been
regarding proximate cause, Thompson did not preserve for
appellate review the alleged error in sustaining Dr. Patton
and the Clinic's objection to the question calling for Dr.
Strahl's opinion as to "whether [Ellis's] release directly led
[to] and caused her death." Rule 103(a)(2), Ala. R. Evid.,
states:
"(a) Effect of Erroneous Ruling. Error may not
be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is
affected, and
"....
"(2) Offer of Proof. In case the ruling is one
excluding evidence, the substance of the evidence
was made known to the court by offer or was apparent
from the context within which questions were asked."
Thus, when an objection has been sustained, the party
attempting to offer the evidence generally must make an offer
of proof in order to seek appellate review of the trial
court's ruling. See also K.W. v. J.G., 856 So. 2d 859, 869
1061540
21
(Ala. Civ. App. 2003), in which the Court of Civil Appeals
stated:
"Additionally, the mother did not attempt to make
any offer of proof regarding the testimony that she
now contends was limited by the trial court. See
Charles W. Gamble, McElroy's Alabama Evidence §
425.01(1) (5th ed. 1996) ('The party offering the
evidence, to which an objection has been sustained,
must make an offer of proof as a condition precedent
to appellate review.' (footnote omitted)). See
also Strickland v. Mobile Asphalt Co., 650 So. 2d
893, 894 (Ala. Civ. App. 1994) ('The failure to make
such an offer of proof resulted in a failure to
preserve any error for our review.'). The mother
has made no argument that objecting before the trial
court or making an offer of proof would have been a
'useless
gesture.'
See
Killingsworth
v.
Killingsworth, 283 Ala. 345, 354, 217 So. 2d 57, 66
(1968)."
Thompson did not make an offer of proof to the trial
court as to what Dr. Strahl's testimony would have been
regarding proximate causation. Consequently, nothing in the
record before us indicates what Dr. Strahl's opinion as to
causation would have been.
In his reply brief to this Court, Thompson quotes
material from Dr. Strahl's deposition in an attempt to
demonstrate what Dr. Strahl's testimony as to proximate
causation would have been. However, because Dr. Strahl's
deposition testimony is not a part of the record on appeal,
1061540
22
Dr. Patton and the Clinic have moved to strike the portions of
Thompson's reply brief referencing and quoting portions of Dr.
Strahl's deposition testimony, as well as the arguments
founded on that testimony. In Green v. Standard Fire
Insurance Co. of Alabama, 398 So. 2d 671, 673 (Ala. 1981),
this Court noted:
"[I]t is well settled in Alabama that an appellate
court will not consider matters outside the record.
American Benefit Life Insurance Co. v. Ussery, Ala.,
373 So. 2d 824 (1979). This Court is limited to a
review of the record alone and 'the record cannot be
changed, altered or varied on appeal by statements
in briefs of counsel, nor by affidavits or other
evidence not appearing in the record.' Cooper v.
Adams, 295 Ala. 58, 322 So. 2d 706 (1975)."
We therefore grant Dr. Patton and the Clinic's motion to
strike and do not consider the portions of Dr. Strahl's
deposition that Thompson quotes in his reply brief. Thompson
thus has not preserved for appellate review the issue whether
the trial court erred in sustaining Dr. Patton and the
Clinic's objection to Dr. Strahl's testimony regarding
proximate causation.
Finally,
Thompson
notes
that
Dr.
Patton,
in
her
testimony, agreed with the statement "that had [Ellis] been
hospitalized, the likelihood of her committing suicide would
1061540
23
have been lessened," and Thompson contends that Dr. Patton's
testimony in that regard is expert testimony providing
sufficient proof of proximate causation. We disagree.
The testimony of Dr. Patton's to which Thompson cites was
as follows:
"Q. Let's put it another way. If [Ellis had
been admitted to the hospital on November 24], more
than likely or probably, she would not have
committed suicide on the 25th or 26th?
"A. If she was hospitalized, there would have
been certainly a less likelihood if she was in the
hospital.
"Q. Well, is it a less likelihood or would you
consider that a probability?
"A. There would be a less likelihood. People
have committed suicide in hospitals even under the
best of care."
(Emphasis added.) Dr. Patton's testimony in that regard
indicates that continued hospitalization would have made it
less likely that Ellis would have committed suicide, but it
does not provide substantial evidence indicating that Dr.
Patton's decision to discharge Ellis probably caused her
death.
II.
Thompson next argues that expert testimony was not
1061540
There was testimony at trial that Ellis had been treated
5
for approximately 30 years for a psychiatric illness and that,
in the year before her death, she had been hospitalized more
than once for management of that illness and had twice
attempted suicide.
24
required to establish proximate causation in the present case.
After citing portions of the above-quoted testimony in which
Dr. Strahl opined that Dr. Patton's decision to discharge
Ellis fell below the applicable standard of care, Thompson
argues: "Any layperson weighing this testimony along with
both Dr. Strahl and Dr. Patton's testimony regarding [Ellis's]
suicidal history,
can reliably determine the issue of
[5]
causation without expert testimony to assist in that
determination." We disagree.
In Ex parte HealthSouth Corp., 851 So. 2d 33 (Ala. 2002),
this Court affirmed the holding of the Court of Civil Appeals
"that expert testimony was not needed to prove that
HealthSouth [Corporation] breached its duty of care to Heath
[the plaintiff] when its nursing staff allegedly failed to
respond to her calls for assistance, which failure proximately
caused Heath's injuries." 851 So. 2d at 36. HealthSouth
argued that Heath was required to present expert testimony
because the facts of her case did not fit within one of the
1061540
25
four categories of cases identified in Anderson v. Alabama
Reference Laboratories, 778 So. 2d 806 (Ala. 2000), as
exceptions to the expert-testimony requirement in a medical-
malpractice action. The four categories stated in Anderson
were as follows:
"'"'1) where a foreign instrumentality is
found in the plaintiff's body following
surgery; 2) where the injury complained of
is in no way connected to the condition for
which the plaintiff sought treatment; 3)
where the plaintiff employs a recognized
standard or authoritative medical text or
treatise to prove what is or is not proper
practice; and 4) where the plaintiff is
himself
or
herself
a
medical
expert
qualified
to
evaluate
the
doctor's
allegedly negligent conduct.'"
"'Allred [v. Shirley], 598 So. 2d [1347,] at 1350
[(Ala. 1992)](quoting Holt v. Godsil, 447 So. 2d
191, 192-93 (Ala. 1984) (citations omitted in
Allred)).'"
Ex parte HealthSouth, 851 So. 2d at 37 (quoting Anderson, 778
So. 2d at 811).
This Court rejected HealthSouth's argument, however,
concluding that the list of categories in Anderson was
illustrative, not exclusive. 851 So. 2d at 38. Consequently,
the Court in Ex parte HealthSouth reformulated the statement
of the exceptions to the general rule requiring expert
1061540
26
testimony. 851 So. 2d at 38. Thompson contends that this
case falls within the first exception stated in Ex parte
HealthSouth, which is
"when the act or omission is in a class of cases
'"where want of skill or lack of care is so apparent
... as to be understood by a layman, and requires
only common knowledge and experience to understand
it,"' [Tuscaloosa Orthopedic Appliance Co. v.]
Wyatt, 460 So. 2d [156,] at 161 [(Ala. 1984)]
(quoting Dimoff v. Maitre, 432 So. 2d 1225, 1226-27
(Ala. 1983)), such as when a foreign object is left
in, the wrong body part is operated on, or a call
for assistance is ignored for an unreasonable time
...."
851 So. 2d at 42.
This Court concluded that the situation in Ex parte
HealthSouth--a nurse failed to respond to a routine call
within a 30-minute period--was within that exception. This
Court
rejected
HealthSouth's
contention
"that
allowing
'patient monitoring standards' to be within a layperson's
'common knowledge' opens the door for cases that should be
evaluated as medical-malpractice cases to be treated as simple
negligence cases." 851 So. 2d at 40. HealthSouth
specifically raised the following scenarios as illustrative of
"'factually complex decisions' that would then be submitted to
juries without the requisite assistance from medical experts":
1061540
27
"'What if there is an emergency on the floor? What
if the call light is not working or is improperly
used
by
the
patient?
And,
if
an
alleged
thirty-minute
delay
is
somehow
within
the
understanding of laypeople for purposes of assessing
liability, what then of fifteen minutes? Or five?
Or one? ... [W]hat about issues of causation, such
as where, as here, HealthSouth's expert testified
that the plaintiff's own conduct (i.e., failing to
follow her physician's orders about not getting out
of bed) was the actual cause of the injury?'"
851 So. 2d at 40-41. This Court concluded:
"A layperson does not need an expert to assist him
or her in understanding that an emergency on the
floor could cause a delay or that a one-minute delay
could be reasonable, for example, when the nurses'
desk is two minutes from the patient's room. As to
causation, it is clear that Heath's injuries
occurred because she got out of the hospital bed and
fell. A jury can certainly weigh the facts in
determining causation, be they a nurse's failure to
respond within a 30-minute time frame or a doctor's
order to stay in bed. We do not see why a medical
expert would be necessary to establish that Heath's
failure to follow doctor's orders--by getting out of
bed and injuring herself--was the result of the
failure to respond to a call for assistance for an
unreasonable period. In this case, where the issue
is whether a nurse breached the standard of care by
not responding to a routine call within a 30-minute
period,
laypersons
could
answer
all
of
the
aforementioned hypotheticals by using their 'common
knowledge and experience.' We do not see how an
expert would be necessary to testify as to the
'medical standards' involved."
851 So. 2d at 41.
Relevant to the resolution of the present case is this
1061540
28
Court's conclusion in Ex parte HealthSouth that "the nurse's
responsibility to respond to Heath's call for assistance
clearly [fell] within the category of routine hospital care";
that "routine hospital care" involved custodial care rather
than medical care, and, consequently, "[a] jury could use
'common knowledge and experience' to determine whether the
standard of care was breached." 851 So. 2d at 39. See also
Ex parte HealthSouth, 851 So. 2d at 42-43 (See, J., concurring
specially) ("I concur with the majority's decision to affirm
the judgment of the Court of Civil Appeals because the Heaths'
claim on which that court reversed the summary judgment does
not appear to be a medical-malpractice claim, but is instead
a claim alleging negligent or wanton-and-willful failure to
provide requested custodial care. Because, and to the extent
that, the Heaths' claims are not medical-malpractice claims,
I concur that the Heaths need not show the applicable standard
of care through expert medical testimony.").
Unlike the alleged negligence at issue in Ex parte
HealthSouth, the underlying issue here does not involve a
matter of "routine hospital care." Dr. Patton's decision to
discharge Ellis from the hospital was one of a number of
1061540
29
decisions she made about the appropriate medical care for
treating Ellis's psychiatric illness. For example, the
decision to discharge Ellis from the hospital was accompanied
by a discharge plan created by Dr. Patton. Dr. Patton and the
Clinic provide the following summary of Ellis's discharge plan
and treatment:
"Ms. Ellis was discharged with the following
discharge plan formulated by Dr. Patton: (1) a
follow-up appointment was scheduled for the
following
morning
with
Ms.
Ellis's
long-time
counselor
at
the
Mental
Health
Center;
(2)
arrangements were made for daily visits by a home-
health psychiatric nurse to monitor Ms. Ellis's
mental state and monitor medication compliance; and
(3) a commitment was obtained from Ms. Ellis's
cousin
to
assist
Ms.
Ellis
with
medication
c o m p l i a n c e .
A d d i t i o n a l l y ,
during
th e
hospitalization,
Ms.
Ellis's
medications
were
adjusted and she was discharged with an increased
dosage of Seroquel. This discharge plan was unique
and different from other discharge plans formulated
for Ms. Ellis in the past in that it included many
new interventions that had not been a part of
previous discharge plans. The undisputed testimony
at trial from all three psychiatrists who testified,
including [Thompson's] expert witness, was that this
was an excellent discharge plan that met the
standard of care."
Dr. Patton and the Clinic's brief, pp. 8-9 (footnote and
citations omitted).
The decision to discharge Ellis thus was accompanied by
a number of additional medical determinations. Deciding
1061540
30
whether Dr. Patton's decision to discharge Ellis probably
caused Ellis to commit suicide includes evaluating the
reasonableness of that decision in light of the other medical
determinations
accompanying
it.
Evaluating
the
reasonableness
of medical decisions is not a matter for which "[a] jury could
use 'common knowledge and experience.'" Ex parte HealthSouth,
851 So. 2d at 49.
We note that other jurisdictions have also found that in
medical-malpractice cases involving suicide, expert testimony
is required to establish that the alleged breach of the
standard of care proximately caused the suicide. See, e.g.,
Wilkins v. Lamoille County Mental Health Servs., 179 Vt. 107,
116-17, 889 A.2d 245, 252-53 (2005), in which the Supreme
Court of Vermont stated:
"Plaintiff's case rests squarely on the allegation
expressed
in
her
complaint
that
defendant's
negligence
'in
treating
[decedent's]
suicidal
condition' proximately caused her death. We have
repeatedly
held
that the standard-of-care and
causation elements of professional negligence claims
'[o]rdinarily
...
must
be
proved
by
expert
testimony,' Jones v. Block, 171 Vt. 569, 569, 762
A.2d 846, 848 (2000) (mem.), and this is no less
true of claims relating to the negligent treatment
or assessment of patients at risk of committing
suicide. See, e.g., Dimitrijevic v. Chi. Wesley
Mem'l Hosp., 92 Ill. App. 2d 251, 236 N.E.2d 309,
313 (1968) ... Moats v. Preston County Comm'n, 206
1061540
31
W. Va. 8, 521 S.E.2d 180, 188 (1999) (determining
whether mental health center's negligence caused
suicide
'involves
complicated
medical
issues,
specifically, the manner and method of protecting
someone who is suicidal,' that are not within
knowledge of lay jurors); see also Estate of Joshua
T. v. State, 150 N.H. 405, 840 A. 2d 768, 772 (2003)
(holding that because '[s]uicide is not easily
explained
or
understood'
and
'[i]ts
causes,
prevention, triggers and warning signs cannot be
readily calculated,' expert testimony is required to
establish causal link between suicide and alleged
negligence in placing decedent in foster home).
"Plaintiff's claim that defendant deviated from
the standard of care by prematurely evaluating
decedent while she was still feeling the effects of
the overdose; failing to conduct a sufficient
suicide-risk evaluation, including the risk posed by
firearms; failing to require a written safety
contract;
and
failing
to
schedule
follow-up
appointments, together with the claim that such
conduct was the proximate cause of decedent's
suicide, all involve complex psychiatric/medical
issues relating to the causes, warning signs, and
prevention of suicide. These are plainly not issues
within
a
lay
juror's
common
knowledge
and
experience. See Estate of Fleming v. Nicholson, 168
Vt. 495, 497-98, 724 A.2d 1026, 1028 (1998) (expert
testimony not required '[w]here a professional's
lack of care is so apparent that only common
knowledge and experience are needed to comprehend
it')."
The issue of proximate causation in this case was not an issue
that could be determined without expert testimony.
1061540
32
Conclusion
The judgment of the trial court is affirmed.
MOTION TO STRIKE GRANTED; AFFIRMED.
See, Lyons, Woodall, Stuart, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., and Murdock, J., concur in the result.
1061540
33
MURDOCK, Justice (concurring in the result).
The question addressed in Part I of the main opinion is
whether a jury reasonably could understand Dr. Nathan Strahl's
testimony to mean that it was probable that Peggy Sue Ellis,
the decedent, would commit suicide if released from the
hospital when she was. I believe they could, especially when
that testimony is considered as a whole. Nonetheless, as
discussed at the end of this writing, I do not believe Dr.
Strahl's testimony addressed precisely the right question in
relation to the issue of proximate causation, and I therefore
concur in the result.
The main opinion focuses in particular on Dr. Strahl's
statement that, given Ellis's condition at the time of her
release, "[i]t was highly probable that she might do something
to herself, yes." The main opinion takes the position that
this wording should be read literally and must be construed to
mean that there is a high probability that there was a
possibility that Ellis would do something to harm herself upon
discharge. I understand that it is possible to take the word
"might" in this sentence in a strict and literal sense to mean
1061540
In the first sentence of note 2, the main opinion
6
paraphrases a portion of this statement, and, in the process,
rewords it in a way that oversimplifies it and changes its
import.
34
"possible." That this could be the only reasonable
6
interpretation of this particular statement, however, assumes
or imposes upon both Dr. Strahl and the jury a standard of
precision in the oral use of the English language that I do
not think is appropriate or, more importantly, required as a
matter of law in this case. This is particularly true when
one considers the entirety of Dr. Strahl's testimony.
As both the jury and Dr. Strahl were well aware, Ellis
had a 30-year history of psychiatric problems, with repeated
hospitalizations, more than one hospitalization in the past
year, and two suicide attempts within the past year. Against
this factual backdrop, the context of the above-quoted
statement by Dr. Strahl includes the immediately preceding
questions and answers, namely:
"Q[uestion:] In your opinion, given your review of
the records and your understanding of Ms. Ellis's
condition on 11/23/99, was there a probability that
she would attempt suicide or self-harm if she was
released from the hospital?
"....
"A[nswer:] That was a probability."
1061540
35
(Emphasis added.) Dr. Strahl then added to this answer the
following additional statement, and a follow-up question was
posed:
"The probability increases the more factors that she
would carry leaving the hospital that are risk
factors for suicide.
"[Question:] And did Ms. Ellis possess many of
these risk factors?
"A[nswer:] She did."
(Emphasis added.) Only as a follow-up to these questions and
answers do the following question and answer appear in the
transcript:
"Q[uestion:] Was it highly probable?
"A[nswer:] It was highly probable that she might do
something to herself, yes."
(Emphasis added.) Taken as a whole, and in context, Dr.
Strahl's testimony reasonably could be construed by jurors to
be testimony by Dr. Strahl that it was probable that Ellis
would attempt to harm herself upon her discharge from the
hospital on the date in question. That context is
supplemented by the subsequent testimony of Dr. Strahl that
"suicide was an imminent potential given Ms. Ellis's release
on November 23, 1999." Indeed, in my opinion, the
1061540
36
interpretation urged by the appellant, the administrator of
Ellis's estate, is more reasonable than that urged by
Dr. Patton and the Clinic.
In addition, the construction urged by Dr. Patton and the
Clinic essentially deprives Dr. Strahl's statement of any
meaning at all. Anything is "possible"; thus, there always is
a high probability -- if not a certainty -- that it is
"possible" that anyone discharged from the hospital could at
any time thereafter commit suicide. Given the context within
which Dr. Strahl gave his testimony, and considering that
testimony as a whole, I decline the invitation to conclude
that it was Dr. Strahl's intent, or that the jury must
conclude that it was his intent, to give expert opinion
testimony bereft of any probative value.
The testimony in Giada v. Tucker, 746 So. 2d 998 (Ala.
1999), was sufficiently similar to that in the present case to
make the Giada Court's analysis instructive:
"In the present case, Ms. Giada presented the
trial court with an affidavit from Dr. Scott A.
Kale,
a
physician board-certified in internal
medicine, with a specialty in rheumatology. Dr.
Kale testified, by way of affidavit, that had Dr.
Tucker correctly diagnosed and treated Ms. Giada's
condition,
'it
is
most
likely
probable
that
blindness would not have occurred.' It is clearly
1061540
Note 2 of the main opinion suggests that Giada is
7
distinguishable from the present case because the testimony in
Giada used the term "would" rather than the term "might," as
does the present case. ___ So. 2d at ___. In asserting this
as a distinction, the main opinion misperceives the apposite
comparison between the language in Giada and the language in
the present case. The parallelism that makes Giada
instructive does not involve the term "would." Rather, the
apposite comparison is between the Giada expert's use of the
two equivocal terms, "most likely" and "probable," and the use
in the present case of the two equivocal terms, "highly
probable" and "might." The Giada Court held, in the context
of written testimony, that the expert's use of the phrase
"most likely probable" did not necessarily have a different
meaning in common parlance than if the expert had simply used
the term "probable" by itself. My point is that it is
similarly difficult to say, in the context of the oral
testimony at issue here, that the expert's use of the phrase
"highly probable that [Ellis] might" necessarily has a
different meaning in common parlance than if the expert had
simply used the phrase "highly probable." I do not believe we
can say as a matter of law that there is such a difference,
particularly when this is considered in conjunction with the
balance of Dr. Strahl's testimony and the Giada Court's
admonitions that we must review such testimony "in a light
most favorable to the nonmovant and must resolve all
reasonable doubts against the movant." 746 So. 2d at 1000.
37
difficult to distinguish between the meaning of the
phrase 'most likely probable' and the meaning of the
word 'probable.'
Dr. Kale's words could mean that
[7]
there is only a chance that it is probable that had
treatment begun earlier blindness would not have
occurred; if this is the case, the trial court would
have been correct in entering the summary judgment.
However, the statement could also have been Dr.
Kale's way of restating what he had said earlier.
The insertion of a comma would have dramatically
changed the statement to 'most likely, probable.'
The doctor could have meant to say that the delay in
administering steroid therapy most likely caused Ms.
Giada's blindness, i.e., that it was probable that
1061540
38
Dr.
Tucker's
negligence
caused
Ms.
Giada's
blindness. Or Dr. Kale may have intended to
strengthen the meaning of the word 'probable,' as in
'very probable.'
"In reviewing a summary judgment, this Court
must review the record in a light most favorable to
the nonmovant and must resolve all reasonable doubts
against the movant. Hanners v. Balfour Guthrie,
Inc., 564 So. 2d 412, 413 (Ala. 1990). Ambiguities
must be resolved in favor of the nonmovant. See Ex
parte Brislin, 719 So. 2d 185 (Ala. 1998); Hurst v.
Alabama Power Co., 675 So. 2d 397 (Ala. 1996); Fuqua
v. Ingersoll-Rand Co., 591 So. 2d 486 (Ala. 1991).
Resolving the ambiguity in Dr. Kale's statement in
favor of Ms. Giada, we conclude that the phrase
'most likely probable' is indistinguishable from the
single word 'probable.' Therefore, we conclude that
Ms. Giada presented substantial evidence that Dr.
Tucker's negligence probably caused her injury. Dr.
Kale's affidavit created a jury question as to
proximate cause in this case."
Gaida, 746 So. 2d at 1000-01 (emphasis added).
That said, I nonetheless concur in the result reached by
the main opinion. I do so because, regardless of which view
is taken of Dr. Strahl's testimony, that testimony did not
address the precise question that it had to address in order
to establish proximate causation.
The question that had to be addressed in order to
establish whether Dr. Patton's discharge of Ellis caused
Ellis's death was not whether suicide was probable following
any discharge of Ellis from the hospital on November 23, 1999,
1061540
39
but, instead, whether suicide was probable given the
particular discharge that was implemented by Dr. Patton on
that date. The discharge implemented by Dr. Patton was not a
"naked" discharge, but was one accompanied by three specific
safeguards, including the prescription of strong medication
and the engagement of two other parties to hold Ellis
accountable for filling the prescription for and thereafter
taking that medication. There was no testimony, however, by
Dr. Strahl or any other expert witness that it was probable
that Ellis would commit suicide upon being discharged under
these arrangements. Nor was there any testimony by any
witness that Ellis probably would not fill the prescription or
take the medicine, or that both of the other parties engaged
to hold Ellis accountable in these respects would not fulfill
their commitments. The failure of each of these three
safeguards,
cumulatively
if
not
separately,
arguably
constitute independent intervening efficient causes. Without
testimony that it was probable that these safeguards would
fail, and in particular that Dr. Patton knew or should have
known that it was probable that these safeguards would fail,
I do not see substantial evidence in the record that Ellis's
1061540
40
discharge on November 23, 1999, with these safeguards in
place, was the proximate cause of Ellis's suicide. | October 10, 2008 |
75623351-db61-4c32-8823-d8d6b3f158b5 | Board of Trustees of the University of Alabama, for its division, University of Alabama Hospital, and Gadsden Regional Medical Center v. American Resources Insurance Company, Inc., et al. | N/A | 1061492 | Alabama | Alabama Supreme Court | REL: 5/2/08
REL: 9/19/08, as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
_________________________
1061492
_________________________
Board of Trustees of the University of Alabama, for its
division, University of Alabama Hospital, and Gadsden
Regional Medical Center
v.
American Resources Insurance Company, Inc., et al.
Appeal from Jefferson Circuit Court
(CV-06-4216)
SEE, Justice.
The Board of Trustees of the University of Alabama, for
its division, University of Alabama Hospital in Birmingham
("UAB
Hospital"),
and
Gadsden
Regional
Medical
Center
1061492
2
("Gadsden Regional") (hereinafter collectively referred to as
"the hospitals") claim that a settlement among American
Resources
Insurance
Company,
Inc.
("American
Resources"),
Hill
Plumbing and Heating Inc. ("Hill Plumbing"), Raymond Luther
Hill ("Hill"), the law firm of Cory, Watson, Crowder &
Degaris, P.C. ("Cory Watson"), and David A. Gann, as
administrator of the estate of Patricia Ann Gann, deceased
("Gann") (hereinafter collectively referred to as "the Gann
parties"), impaired the hospitals' respective statutory
hospital liens. The hospitals appeal from a summary judgment
in favor of the Gann parties and argue that there is
substantial
evidence
indicating
that
the
hospitals'
respective
liens are enforceable against the Gann parties. We affirm in
part and reverse in part.
Facts and Procedural History
The facts of the case are undisputed. On May 22, 2004,
Patricia Ann Gann ("Patricia") was fatally injured in an
automobile accident in Gadsden in Etowah County. The accident
occurred when the vehicle in which Patricia was a passenger
was struck by a sport-utility vehicle ("SUV") driven by Hill,
an agent of Hill Plumbing. Patricia was taken to Gadsden
Regional for emergency care and then, later that same day, was
1061492
Section 35-11-370 provides:
1
"Any
person,
firm,
hospital
authority
or
corporation operating a hospital in this state shall
have a lien for all reasonable charges for hospital
care, treatment and maintenance of an injured person
who entered such hospital within one week after
receiving such injuries, upon any and all actions,
claims, counterclaims and demands accruing to the
person to whom such care, treatment or maintenance
was
furnished,
or
accruing
to
the
legal
representatives of such person, and upon all
judgments, settlements and settlement agreements
entered into by virtue thereof on account of
injuries giving rise to such actions, claims,
counterclaims, demands, judgments, settlements or
settlement agreements and which necessitated such
hospital care, subject, however, to any attorney's
lien."
Section 35-11-371(a) provides:
2
"In order to perfect such lien the operator of such
hospital, before or within 10 days after such person
shall have been discharged therefrom shall file in
the office of the judge of probate of the county or
3
transferred to UAB Hospital. Patricia remained at UAB
Hospital until she died of her injuries on June 18, 2004. The
charges for Patricia's treatment totaled $23,817.25 at Gadsden
Regional and $415,229.12 at UAB Hospital. Under § 35-11-370,
Ala. Code 1975, the hospitals had an automatic lien for all
1
reasonable charges the hospitals incurred for Patricia's
treatment, and each hospital attempted to perfect its lien
pursuant to § 35-11-371(a), Ala. Code 1975. Gadsden Regional
2
1061492
counties in which such cause of action arose a
verified statement setting forth the name and
address of such patient, as it shall appear on the
records of such hospital, the name and location of
such hospital and the name and address of the
operator thereof, the dates of admission and
discharge of such patient therefrom, the amount
claimed to be due for such hospital care, and to the
best
of
claimant's
knowledge,
the
names
and
addresses of all persons, firms or corporations
claimed by such injured person, or the legal
representative of such person, to be liable for
damages arising from such injuries; such claimant
shall also within one day after the filing of such
claim or lien, mail a copy thereof by registered or
certified mail, postage prepaid, for each person,
firm or corporation so claimed to be liable on
account of such injuries, at the addresses so given
in such statement, and to the patient, his guardian
or his personal representative at the address given
at the time of admission. The filing of such claim
or lien shall be notice thereof to all persons,
firms or corporations liable for such damages
whether or not they are named in such claim or
lien."
It appears that Patricia was a resident of St. Clair
3
County and that an estate was opened in the Probate Court of
St. Clair County.
4
filed its hospital lien in the Etowah Probate Court on June
23, 2004. UAB Hospital filed its lien on June 30, 2004, in
the St. Clair Probate Court and, in February 2005, filed a
3
second lien, this time in Etowah County.
A personal-injury action was filed in the Etowah Circuit
Court on behalf of Patricia and against Hill, Hill Plumbing,
1061492
5
and others (hereinafter collectively referred to as "the
Etowah defendants"), seeking, among other things, past and
future medical expenses. Following Patricia's death, the
complaint was amended to add a wrongful-death claim and to
name David Gann as Patricia's personal representative. This
Etowah action was subsequently sent to mediation, and,
although neither hospital was a party to the action, the
hospitals were invited to the mediation by court order because
of their respective liens.
All the parties to the Etowah action and UAB Hospital
attended the mediation. UAB Hospital eventually withdrew from
the process because it was unable to settle with Gann. The
remaining parties reached a settlement and reduced their
agreement to a memorandum; that memorandum provided:
"Following mediation of this cause on November
30, 2005, it is hereby agreed that this action will
be settled and the claims against [the Etowah
defendants] for wrongful death under the first
amended
complaint
dismissed with prejudice in
consideration
of
the
payment
of
the
sum
of
$700,000.00. Additional Terms of Settlement:
"(1) [Gann] will dismiss all personal
injury claims under the original complaint
or complaint as amended with prejudice.
"(2) [Gann] and his counsel will save
and hold defendants harmless from all liens
or subrogation claims, including but not
1061492
It appears that UAB Hospital actually attempted to move
4
to intervene on the same day that the settlement was reached
but failed to include with its motion the requisite filing
fee. Thus, the filing date for the motion is December 5,
2006.
6
limited
to
UAB
Hospital
and
Gadsden
Regional Medical Center and any expense,
lawyers fees or costs necessary to defend
same.
"It is understood and agreed that the foregoing
'additional terms of settlement' have been agreed
upon by the parties with the mediator acting as
scrivener. The parties agree to execute such
releases and a stipulation of dismissal or other
request
for
a
dispositive
order
as
may
be
appropriate."
The day after the parties reached this agreement, on
December 1, 2005, Gann sought, and was granted, an order
dismissing with prejudice the personal-injury claims against
the Etowah defendants. On December 5, 2005, UAB Hospital
moved the Etowah Circuit Court to intervene in the Etowah
action. After conducting a hearing, the Etowah Circuit Court
4
denied UAB Hospital's motion to intervene. UAB Hospital did
not appeal that decision. Gann eventually signed a pro tanto
settlement agreement and release with the Etowah defendants on
January 16, 2006 ("the settlement"). It is undisputed that
all parties in the Etowah action were aware of the liens of
the hospitals at the time of the settlement.
1061492
The January 2007 amended complaint also alleged, among
5
other things, that the hospitals were intended third-party
beneficiaries of the settlement and that Cory Watson and Gann
breached the settlement agreement by failing to satisfy the
hospitals' liens.
Gann and Cory Watson moved the trial court to dismiss the
6
hospitals' claim against them alleging impairment of the
hospitals' liens. The parties argued that the second amended
complaint was filed a year and a day after the settlement was
signed and, thus, that the statute of limitations had run on
the hospitals' impairment claim as to Gann and Cory Watson.
See § 35-11-372, Ala. Code 1975 (a lien-impairment action
"shall be commenced against the person liable for such damages
within one year after the date such liability shall be finally
determined by a settlement release covenant not to sue or by
the judgment of a court of competent jurisdiction").
7
In July 2006, the hospitals filed in the Jefferson
Circuit Court ("the trial court") the present action against
the Etowah defendants, alleging that the settlement impaired
the hospitals' statutory hospital liens. On January 17, 2007,
the hospitals amended their complaint to include Cory Watson
and Gann as defendants. The Gann parties moved the trial
5
court for a summary judgment, arguing that the hospitals had
failed to perfect their liens, that the hospitals' liens did
not attach to the proceeds derived from a settlement of a
wrongful-death claim, and that the hospitals' claims were
barred by the doctrine of res judicata. The trial court
6
entered a summary judgment in favor of the Gann parties "as to
1061492
The trial court also entered a summary judgment in favor
7
of the Gann parties on the hospitals' third-party-beneficiary
claim. The hospitals, however, do not appeal that decision.
8
the claims for impairment," finding that "the parties to the
settlement in the Etowah Action intended to attribute their
settlement and the funds paid, only to the Gann wrongful death
claims." The trial court denied the Gann parties' motion for
a summary judgment on the issues of res judicata and the
hospitals' alleged failure to perfect their liens. The
7
hospitals now appeal.
Standard of Review
A summary judgment is appropriate only if the trial court
finds that there are no genuine issues of material fact and
that the movant is entitled to a judgment as a matter of law.
Rule 56(c)(3), Ala. R. Civ. P. On appeal, this Court reviews
a summary judgment de novo, Ex parte Essary, [Ms. 1060458,
Nov. 2, 2007] ___ So. 2d ___, ___ (Ala. 2007), and affords no
presumption of correctness to the trial court's ruling on
questions of law or its conclusion as to the appropriate legal
standard to be applied. McCutchen Co. v. Media Gen., Inc.,
[Ms. 1060211, Jan. 25, 2008] ___ So. 2d ___, ____ (Ala. 2008).
Analysis
1061492
9
The trial court stated as follows in its summary-judgment
order:
"The
Court
finds
that
the
Defendants'
Motion
for
Summary Judgment is due to be GRANTED as to the
claims for impairment. It appears that the parties
to the settlement in the Etowah Action intended to
attribute their settlement and the funds paid, only
to the Gann wrongful death claims.
"In reaching this decision, the starting point
for the Court is that a Court should encourage
parties to settle their disputes. The Court
believes that this is best done by giving the
parties the greatest possible latitude in reaching
settlements. This can be best accomplished by
leaving the Plaintiff as 'master of his lawsuit.'
The Court recognizes that in so holding this may on
occasion result in injury or loss to persons who
would stand to benefit were the settlement couched
under one claim rather than another. Although
Plaintiffs call this Court's attention to the fact
that the dismissal of the personal injury action was
a condition of the overall settlement, the Court
finds that the settlement documents in the Etowah
Action are clear. [The Gann parties] were primarily
motivated by their desire to frame their settlement
so as to avoid reach of Plaintiffs' hospital liens
to that settlement. The settlement documents were
carefully prepared so as to specifically pay the
settlement only under the wrongful death claim.
Under Alabama Code section 6-5-410(c) (1975), a
hospital lien does not attach to the proceeds of a
wrongful death settlement. Board of Trustees of
University of Alabama v. Harrell, 43 Ala. App. 258,
188 So. 2d 555 (Ala. App. 1965)."
It appears from the order that the trial court entered a
summary judgment for the Gann parties because it found that,
1061492
10
as a matter of law, the Gann parties were entitled to
characterize the dismissal of the personal-injury claims as
unrelated to the agreement that settled Gann's wrongful-death
claim, notwithstanding the fact that the dismissal of the
personal-injury claims was a condition of the settlement
agreement. This is a question of law and, under the
applicable standard of review, is afforded no presumption of
correctness. Ex parte Graham, 702 So. 2d 1215, 1221 (Ala.
1997) ("[O]n appeal, the ruling on a question of law carries
no presumption of correctness, and this Court's review is de
novo.").
The hospitals frame the issue on appeal as wether their
impairment claim is supported by "substantial evidence";
however, the gravamen of the hospitals' argument is that they
had automatic statutory liens that attached to Gann's
personal-injury claims and that, because all parties to the
settlement had actual knowledge of the hospitals' liens before
the settlement, the hospitals' liens were perfected even
though the hospitals had failed to strictly comply with the
hospital-lien-perfection statute. Hospitals' brief at 14, 21,
and 35. Therefore, the hospitals argue, they have a valid
1061492
11
impairment claim against the Gann parties and that claim is
supported by substantial evidence. Id. at 23.
I. Creation of a Hospital Lien
Section 35-11-370, Ala. Code 1975, provides:
"Any
person,
firm,
hospital
authority
or
corporation operating a hospital in this state shall
have a lien for all reasonable charges for hospital
care, treatment and maintenance of an injured person
who entered such hospital within one week after
receiving such injuries, upon any and all actions,
claims, counterclaims and demands accruing to the
person to whom such care, treatment or maintenance
was
furnished,
or
accruing
to
the
legal
representatives of such person, and upon all
judgments, settlements and settlement agreements
entered into by virtue thereof on account of
injuries giving rise to such actions, claims,
counterclaims, demands, judgments, settlements or
settlement agreements and which necessitated such
hospital care, subject, however, to any attorney's
lien."
(Emphasis added.)
"[S]ection [35-11-370] was intended to give hospitals and
other health care providers an automatic lien for the
reasonable value of their services." Ex parte Infinity
Southern Ins. Co., 737 So. 2d 463, 464 (Ala. 1999) (citing
Guin v. Carraway Methodist Med. Ctr., 583 So. 2d 1317, 1319
(Ala. 1991)). The Gann parties do not dispute that the
hospitals have a valid lien for the reasonable charges the
hospitals incurred on Patricia's behalf. Gann parties' brief
1061492
We do not decide, nor are we asked to decide, whether
8
hospital liens attach to claims that have "accrued" but that
have not yet been asserted.
12
at 36. This Court has previously noted that a hospital lien
does not attach to the proceeds of a wrongful-death claim,
Jones v. DCH Health Care Auth., 621 So. 2d 1322, 1324 (Ala.
1993); however, under § 35-11-370 the hospitals' statutory
liens attached to the personal-injury claims filed on
Patricia's behalf. The Gann parties admit that the
8
hospitals' liens were automatic, but they argue that the liens
were not perfected. Gann Parties' brief at 36.
II. Perfection of a Hospital Lien
Although a hospital lien may be automatic, perfection of
the lien is not. Section 35-11-371(a), Ala. Code 1975,
provides:
"In order to perfect such lien the operator of such
hospital, before or within 10 days after such person
shall have been discharged therefrom shall file in
the office of the judge of probate of the county or
counties in which such cause of action arose a
verified statement setting forth the name and
address of such patient,... the name and location of
such hospital and the name and address of the
operator thereof, the dates of admission and
discharge of such patient therefrom, the amount
claimed to be due for such hospital care, and to the
best
of
claimant's
knowledge,
the
names
and
addresses of all persons, firms or corporations
claimed by such injured person, or the legal
1061492
The briefs and the record are silent as to whether the
9
hospitals in this action, within one day of filing their
respective liens, mailed a copy of the liens to the parties
alleged to be liable for Patricia's injuries.
13
representative of such person, to be liable for
damages arising from such injuries; such claimant
shall also within one day after the filing of such
claim or lien, mail a copy thereof by registered or
certified mail, postage prepaid, for each person,
firm or corporation so claimed to be liable on
account of such injuries, at the addresses so given
in such statement, and to the patient, his guardian
or his personal representative at the address given
at the time of admission. The filing of such claim
or lien shall be notice thereof to all persons,
firms or corporations liable for such damages
whether or not they are named in such claim or
lien."
(Emphasis added.) A hospital perfects its lien under 35-11-
371(a) if it files within 10 days of the patient's discharge
from the hospital a verified statement (containing the
required information) in the office of the judge of probate of
the county in which the cause of action arose and, within one
day of filing the lien, mails a copy of the lien to the
parties alleged to be liable for the injuries. It is worth
9
noting, however, that in Alabama, a hospital's failure to
"perfect" a hospital lien does not affect the validity of the
lien. Guin, 583 So. 2d at 1319.
1061492
UAB Hospital does not argue that Patricia's date of
10
death is not the date of "discharge." In fact, in its lien
filings, UAB Hospital provides the date of her death as the
day of her discharge from the hospital.
14
The record indicates that Patricia was injured on May 22,
2004, in Etowah County. That same day she was taken to
Gadsden Regional; she was then transferred to UAB Hospital,
where she died on June 18, 2004. Gadsden Regional filed its
lien in the Etowah Probate Court on June 23, 2004, some 31
days after Patricia was transferred to UAB Hospital. UAB
Hospital filed its lien in the St. Clair Probate Court on June
30, 2004, 12 days after Patricia's death,
and later, in
10
February 2005, it filed a lien in Etowah County.
The hospitals acknowledge that they did not strictly
comply with the requirements of § 35-11-371(a); however, they
argue that the statute should be broadly construed so that the
technical requirements of the statute do not defeat a
hospital's claim, especially in this instance, where it is
undisputed that the Gann parties had actual knowledge of the
liens at the time of the settlement. Hospitals' brief at 35.
On the other hand, the Gann parties argue that under the plain
language
of
the
statute neither hospital's respective
statutory lien was perfected, because, they argue, the liens
1061492
15
were untimely and improperly filed. Gann parties' brief at
34. We disagree.
We begin by noting that "[t]he purpose of Alabama's
hospital-lien statute is, by giving a hospital an automatic
lien for the reasonable value of its services, to induce it to
receive a patient injured in an accident, without first
considering whether the patient will be able to pay the
medical bills incurred." Ex parte University of South Alabama,
761 So. 2d 240, 244 (Ala. 1999). This Court has not yet
addressed "[t]he issue whether such actual notice [of a
hospital lien] can serve in place of the constructive notice
[required by the statute]." Ex parte Infinity Southern Ins.
Co., 737 So. 2d at 466. However, this Court has had the
opportunity to construe Alabama's hospital-lien statutes in
the past and, in Guin v. Carraway Methodist Medical Center, we
noted: "'[I]t has generally been held or recognized that [the
hospital-lien statutes] should not be technically applied so
as to defeat just hospital claims, and that such statutes are
to be liberally construed in this respect.'" 583 So. 2d at
1319 (quoting Annot., 25 A.L.R.3d 874, § 5(b) (1969)).
The hospitals cite Macon-Bibb County Hospital Authority
v. National Union Fire Insurance Co., 793 F. Supp. 321 (M.D.
1061492
At the time of the Macon-Bibb County Hospital Authority
11
decision, Ga. Code Ann., § 44-14-471, Georgia's hospital-lien-
perfection statute, provided:
"In order to perfect the lien provided for in
Code
Section
44-14-470,
the
operator
of
the
hospital, within 30 days after the person has been
discharged therefrom, shall file in the office of
the clerk of the superior court of the county in
which the hospital is located and in the county
wherein the patient resides, if a resident of this
state, a verified statement setting forth the name
and address of the patient as it appears on the
records of such hospital; the name and location of
the hospital and the name and address of the
operator thereof; the dates of admission and
discharge of the patient therefrom; the amount
claimed to be due for the hospital care; and, to the
best of the claimant's knowledge, the names and
addresses of all persons, firms, or corporations
claimed
by
the
injured
person
or
the
legal
representative of the person to be liable for
16
Ga. 1992), and Rolla Community Hospital, Inc. v. Dunseith
Community Nursing Home, Inc., 354 N.W.2d 643 (N.D. 1984), in
support of their position that actual notice may serve in the
place of the constructive-notice requirement of § 35-11-
371(a). Hospitals' brief at 32-33. Although these
authorities are not binding on this Court, we find them
persuasive.
The federal district court in Macon-Bibb County Hospital
Authority noted that the purpose of Georgia's hospital-lien-
perfection statute
was "to provide notice [of the hospital's
11
1061492
damages arising from the injuries. Such claimant
shall also, within one day after the filing of the
claim or lien, mail a copy thereof to any person,
firm, or corporation claimed to be liable for the
damages, said copy to be mailed to the address given
in the statement. The filing of the claim or lien
shall be notice thereof to all persons, firms, or
corporations liable for the damages, whether or not
they are named in the claim or lien."
The statute, however, was amended in 2002; it now provides, in
part:
"The failure to perfect such lien by timely
complying with the notice and filing provisions ...
shall invalidate such lien, except as to any person,
firm, or corporation liable for the damages, which
receives prior to the date of any release, covenant
not to bring an action, or settlement, actual notice
of
a
notice
and
filed
statement
made
under
subsection (a) of this Code section, via hand
delivery, certified mail, return receipt requested,
or statutory overnight delivery with confirmation of
receipt."
The Georgia Court of Civil Appeals adopted the federal
12
court's decision in Thomas v. McClure, 236 Ga. App. 622, 513
S.E.2d 43 (1999).
17
lien] to all potentially liable parties." 793 F. Supp at 325.
The court concluded that because the settling parties "had
actual notice of the hospital lien on [the injured party's]
causes of action against [the settling parties] several months
before they agreed to settle [the] claims" the settling
parties "cannot now rely upon a technical filing requirement
to escape this liability." 793 F. Supp. at 325.12
1061492
18
Similarly, the Supreme Court of North Dakota concluded in
Rolla Community Hospital that "if the enforcement of the
[hospital] lien depends upon constructive notice[,] the timely
filing requirements ... must first be met; but, if actual
knowledge existed or actual notice was given[,] the need for
constructive notice is eliminated." 354 N.W. 2d at 650-51.
In its decision, the Supreme Court of North Dakota noted:
"'The object of the recording (filing) statutes is the
constructive notice which is given to all the world as to the
rights of the parties thereto. Actual notice to third
parties, where it can be shown, is as effective as
recordation.'" 354 N.W.2d at 650 (quoting Bank of Ringgold v.
West Publ'g Co., 61 Ga. App. 426, 6 S.E.2d 598, 599 (1939)).
The Gann parties argue that this Court should narrowly
construe § 35-11-371(a), Ala. Code 1975, but they do not
address this Court's recognition that § 35-11-371(a) is to be
broadly construed. See Guin, supra. The Gann parties instead
direct our attention to three decisions in which courts have
narrowly construed hospital-lien-perfection statutes: Duke
University Medical Center v. Hardy, 89 N.C. App. 719, 367
S.E.2d 6 (1988), In re Harris, 50 B.R. 157 (Bankr. E.D. Wis.
1985), and Melichar v. Michelson, 281 N.Y. 671, 22 N.E.2d 868
1061492
The Gann parties also cite West Nebraska General
13
Hospital v. Farmers Insurance Exchange, 239 Neb. 281, 475 N.W.
2d 901 (1991); however, the Supreme Court of Nebraska, instead
of
requiring
strict
compliance,
held
"that
at
least
substantial compliance with the notice requirements [of
Nebraska's hospital-lien-perfection statute] is necessary to
perfect a hospital lien." 239 Neb. at 289, 475 N.W.2d at 908.
Therefore, this case does not support the Gann parties'
argument that the hospital-lien-perfection statute should be
strictly construed in this case.
19
(1939).
The first two decisions are inapposite because they
13
address the validity of the lien itself, rather than the
perfection of an otherwise valid lien. See Duke University
Med. Ctr., 89 N.C. App. at 720, 367 S.E.2d at 7 ("Since the
action for the child's damages was instituted in the Edgecombe
County Superior Court and plaintiffs did not file a claim for
their lien with the Clerk of that court within the time
designated by the statute, they are not entitled to a lien
under its provisions, as the trial court correctly ruled.");
In re Harris, 50 B.R. at 161 ("Consequently, because Family
Hospital failed to present evidence that it complied with the
requirements of WIS. STAT. § 779.80 for obtaining a hospital
lien, the court finds that Family Hospital does not have a
valid hospital lien.").
In Melichar, the third case cited by the Gann parties, a
New York intermediate appellate court affirmed the decision of
1061492
The appeal to the Court of Appeals of New York, New
14
York's highest appellate court, was dismissed as moot. 281
N.Y. at 665-66, 22 N.E.2d at 488.
20
the trial court without an opinion, 256 A.D. 962, 9 N.Y.S.2d
1016 (1939), and New York's highest appellate court dismissed
a subsequent appeal of that decision. 281 N.Y. 665, 22 N.E.2d
488; see also 281 N.Y. 671, 22 N.E.2d 868.
The dissent to
14
the decision of the intermediate appellate court suggests that
the trial court entered a summary judgment against the
hospital in that case because the hospital had failed to
timely perfect its lien. 256 A.D. 962, 9 N.Y.S.2d 1016 (Dore,
J., dissenting). Although the affirmance by the intermediate
appellate court in Melichar may provide marginal support for
the Gann parties' argument that there are states that have
narrowly construed their hospital-lien-perfection statutes,
the decision of the intermediate appellate court in Melichar
is without an opinion and does not provide any reasoning for
its decision; therefore, we do not find it persuasive.
We also note that this Court has held that actual notice
can satisfy the requirement of constructive notice in the area
of recordation of a conveyance. See Alexander v. Fountain,
195 Ala. 3, 5, 70 So. 669, 669-70 (1916) ("From the earliest
1061492
Not before us in this case is the question when there
15
must have been actual knowledge of the existence of the
hospital lien or when actual notice of such a lien must have
been given.
21
decisions of this court construing unrecorded conveyances void
as to 'purchasers without notice,' etc., it has been held that
actual notice is equivalent to the constructive notice
afforded by the registration of the conveyance. The whole
object and design of the statute is said to be to give notice
of the existence of the conveyance." (citing Ohio Life Ins.
Co. v. Ledyard, 8 Ala. 871 (Ala. 1846); Gamble v. Black
Warrior Coal Co., 172 Ala. 672, 55 So. 190 (1911))). Given
the purpose of the hospital-lien statutes, this Court's
precedent of broadly interpreting Alabama's hospital-lien
statutes, and the decisions of other jurisdictions on this
issue, we hold that where there is actual knowledge or where
actual notice is given, constructive notice is not required.15
Here it is undisputed that at the time the Gann parties
attended
mediation
and
subsequently
entered
into
the
settlement, all parties were aware of the hospitals' liens.
Because the Gann parties had actual knowledge of the
hospitals'
liens,
the
hospitals'
failure
to
provide
1061492
22
constructive notice under 35-11-371(a), Ala. Code 1975, is
immaterial to the validity and enforceability of the liens.
III. Impairment of a Hospital Lien
Once a hospital has perfected its lien, the lien is
protected from impairment. The pertinent portion of § 35-11-
372 provides:
"During the period of time allowed by section
35-11-371 for perfecting the lien provided for by
this division [10 days] and also after the lien
provided for by this division has been perfected, as
provided in this division, by any lienholder
entitled thereto, no release or satisfaction of any
action,
claim,
counterclaim,
demand,
judgment,
settlement or settlement agreement, or of any of
them, shall be valid or effectual as against such
lien unless such lienholder shall join therein or
execute a release of such lien.
"Any acceptance of a release or satisfaction of
any such action, claim, counterclaim, demand or
judgment and any settlement of any of the foregoing
in the absence of a release or satisfaction of the
lien referred to in this division shall prima facie
constitute an impairment of such lien, and the
lienholder shall be entitled to a civil action for
damages on account of such impairment, and in such
action may recover from the one accepting such
release or satisfaction or making such settlement
the reasonable cost of such hospital care, treatment
and maintenance."
Thus, under § 35-11-372, once a hospital has perfected its
lien, no settlement is valid against that lien unless the
hospital consents to the settlement. The statute further
1061492
The Gann parties further argue that UAB Hospital waived
16
its right to appeal because it failed to appeal the Etowah
Circuit Court's decision to deny UAB Hospital's motion to
intervene in the Etowah action. Gann parties' brief at 48.
In support of this argument, the Gann parties cite Ex parte
Smith, 683 So. 2d 431 (Ala. 1996). This Court in Ex parte
Smith granted certiorari review to determine "[t]he preclusive
effect of an administrative determination of a constitutional
claim, when the aggrieved person [did] not seek judicial
review of the administrative decision as authorized by law."
683 So. 2d 433. This Court in Ex parte Smith addressed the
failure of a party to pursue its statutory right to appeal an
administrative decision to the circuit court, not a party's
failure to appeal an adverse ruling on a motion to intervene
to an appellate court. We thus find Ex parte Smith inapposite
and the Gann parties' argument unpersuasive.
23
provides the hospital with a cause of action if its lien is,
in fact, impaired.
The Gann parties argue that even if the hospitals' liens
were perfected, the entry of a summary judgment in their favor
was nonetheless proper because, they argue, Gann is the
"master of his lawsuit" and was therefore entitled to choose
to dismiss his personal-injury claims and to pursue only his
wrongful-death claim.
Under the facts of this case, we
16
disagree.
Although this Court has determined that a hospital lien
does not attach to the proceeds of a wrongful-death claim,
Jones, supra, the hospitals' liens did, in fact, attach to the
personal-injury claims. See § 35-11-370 ("Any ... hospital
1061492
24
authority or corporation operating a hospital in this state
shall have a lien for all reasonable charges for hospital care
... of an injured person ... upon any and all actions [and]
claims ... accruing to the person to whom such care ... was
furnished, or accruing to the legal representatives of such
person."). The hospitals' liens were perfected by actual
knowledge; therefore, "no release or satisfaction of any
action, claim, counterclaim, demand, judgment, settlement or
settlement agreement, or any of them, [is] valid or effectual
as against [the hospitals' liens]" unless the hospitals joined
the settlement or executed a release of the liens. § 35-11-
372, Ala. Code 1975. The Gann parties settled not only the
wrongful-death claim, but also the personal-injury claims.
Pursuant to the settlement, Gann dismissed the personal-injury
claims and released the Etowah defendants "from any and all
present and future claims, demands, actions, causes of action,
suits, damages, loss and expenses, of whatever kind or nature,
for or on account of anything relating in any manner
whatsoever" to the May 22, 2004, accident. The settlement is
broad enough to encompass the personal-injury claims, and the
fact that it was made "in the absence of a release or
satisfaction of [a hospital] lien" constitutes a prima facie
1061492
The final sentence of § 35-11-372 provides:
17
"Such action shall be commenced against the person
liable for such damages within one year after the
date such liability shall be finally determined by
a settlement release covenant not to sue or by the
judgment of a court of competent jurisdiction."
The original text of the act does not include commas between
the words "settlement release covenant not to sue" in its
final sentence. However, for clarity, we have bracketed in
the commas where it appears that commas should be located.
[substituted p. 25]
case of impairment of the hospitals' liens; thus, the
hospitals are entitled to institute a civil action for damages
on account of such impairment. Ex parte Infinity Southern Ins.
Co., 737 So. 2d at 464; § 35-11-372, Ala. Code 1975.
The hospitals' civil action must "be commenced against
the person liable for such damages within one year after the
date such liability shall be finally determined by a
settlement[,] release[,] covenant not to sue[,] or by the
judgment of a court of competent jurisdiction."
§ 35-11-372,
17
Ala. Code 1975. The settlement was signed on January 16,
1061492
26
2006, and the hospitals did not file their impairment claim
against Cory Watson and Gann until January 17, 2007;
therefore, the summary judgment in favor of these two
defendants is due to be affirmed because the hospitals'
impairment claim against them was not filed "within one year
after the date such liability [was] finally determined by
[the] settlement[,] release[,] covenant not to sue[,] or by
judgment of a court ...." § 35-11-372, Ala. Code 1975.
IV. The Doctrine of Res Judicata
Finally, the Gann parties argue that the summary judgment
of the trial court in their favor is due to be upheld because,
they argue, UAB Hospital's impairment claim is barred by the
doctrine of res judicata. "Two causes of action are the same
for res judicata purposes when the following four elements are
satisfied: '(1) a prior judgment on the merits, (2) rendered
by a court of competent jurisdiction, (3) with substantial
identity of the parties, and (4) with the same cause of action
presented in both actions.'" Chapman Nursing Home, Inc. v.
McDonald, [Ms. 1060543, Nov. 16, 2007] ___ So. 2d ___, ___
(quoting Equity Res. Mgmt., Inc. v. Vinson, 723 So. 2d 634,
636 (Ala. 1998)).
1061492
27
In denying the Gann parties' summary-judgment motion on
this ground, the trial court stated that "[i]n order for res
judicata to be applicable, the prior judgment must have been
on the merits of the litigation [and] [t]he denial of a motion
to intervene, especially where it appears that the denial was
based upon the timeliness of the motion, is not a decision on
the merits of the underlying claim." We agree.
"'If the judgment is general, and not based on any
technical defect or objection, and the parties had a full
legal opportunity to be heard on their respective claims and
contentions, it is on the merits, although there was no actual
hearing or argument on the facts of the case.'" Mars Hill
Baptist Church of Anniston, Alabama, Inc. v. Mars Hill
Missionary Baptist Church, 761 So. 2d 975, 978 (Ala. 1999)
(quoting 50 C.J.S. Judgment § 728 (1997)) (emphasis omitted).
Although it may be true that the Etowah Circuit Court held a
hearing on UAB Hospital's motion to intervene, it appears that
that court did not address and dispose of the intervention
motion on the merits of UAB Hospital's lien-impairment claim.
Therefore, there was no prior adjudication on the merits, and
we cannot affirm the judgment of the trial court on this
basis.
1061492
28
Conclusion
For the forgoing reasons, we affirm the summary judgment
entered in favor of Cory Watson and Gann, but we reverse the
summary judgment in all other respects and remand this cause
to the Jefferson Circuit Court for proceedings consistent with
this decision.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Cobb, C.J., and Lyons, Woodall, Stuart, Bolin, Parker,
and Murdock, JJ., concur. | September 19, 2008 |
fb10bbe2-3879-468b-9504-25f6e53e2fd2 | Reeves v. State | 88 So. 2d 561 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 561 (1956)
Jeremiah REEVES, Jr.
v.
STATE of Alabama.
3 Div. 751.
Supreme Court of Alabama.
June 21, 1956.
*562 Peter A. Hall and Orzell Billingsley, Jr., Birmingham, for appellant.
John Patterson, Atty. Gen., and Robt. Straub, Asst. Atty. Gen., for the State.
STAKELY, Justice.
*563 Jeremiah Reeves, Jr. (appellant), was indicted by the Grand Jury of Montgomery County for the offense of rape. He was tried before a jury upon a plea of not guilty and a plea of not guilty by reason of insanity. The trial resulted in a conviction. The case was appealed to this court where it was affirmed. Reeves v. State, 260 Ala. 66, 68 So. 2d 14. On certiorari to the Supreme Court of the United States the judgment of conviction was reversed. Reeves v. State, 348 U.S. 891, 75 S. Ct. 214, 99 L. Ed. 700.
Appellant was arraigned on November 26, 1952, and on that date pleaded not guilty and not guilty by reason of insanity. When the case came up for trial the second time on May 30, 1955, appellant made a motion for permission to withdraw his former pleas in order to attack the legality of the indictment. A motion to quash the indictment was also filed. On May 30, 1955, a motion to quash the venire drawn on May 16, 1955, was filed. Appellant also filed a motion for the appointment of a lunacy commission. Another motion to quash the indictment was also filed. Appellant also filed a motion to set aside the entire jury box and to declare it void. Appellant also made a motion to allow the public to remain in the court room during the trial and further made a motion that the public be excluded only while the prosecutrix testified. All of the aforesaid motions were denied.
Testimony was taken before the court on the motion to quash the venire on the ground of systematic exclusion of Negroes from jury duty in Montgomery County. The motion was denied and the case went to trial. The jury returned a verdict of guilty and fixed the punishment at death. Counsel moved the court to set aside the verdict and the motion was denied. The court adjudged appellant guilty and sentenced him accordingly. It is from such judgment and sentence that this appeal has been taken.
We see no reason to set out the details of the alleged rape of the prosecutrix and the identification of the appellant as the guilty party. We have read the evidence very carefully in this regard and consider that there was clearly evidence from which the jury had the right to infer that the prosecutrix was raped and that this appellant was the one who perpetrated the act. It should be mentioned here that while on the first trial the questions of an alleged confession and inculpatory statements were raised, these questions are not involved in the instant case. In other words the entire case for the State was testimony tending to show the act which constituted the crime, with the attendant circumstances, and the identification of appellant as the party committing the crime. The defendant denied that he committed the crime and there was testimony tending to show that he was at another place at the time the alleged crime was committed.
I. On this trial of the case the appellant sought to withdraw his pleas of not guilty and not guilty by reason of insanity, which were entered on arraignment in order to permit him to attack the indictment on the ground of systematic exclusion of Negroes on the grand jury. The defendant was represented by counsel at the time the pleas were filed. The competency of counsel then representing defendant is not questioned. We find no error in the court's refusal to allow the aforesaid pleas to be withdrawn. Ordinarily an accused need not be rearraigned upon the second or subsequent trial of his case. We find that in most jurisdictions when a case has been reversed it is not necessary that the defendant be rearraigned. Thomas v. State, 17 Okl.Cr. 550, 190 P. 711; Hamit v. State, 42 Okl.Cr. 168, 275 P. 361; Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047; State v. Farrell, 223 N.C. 804, 28 S.E.2d 560; State v. Hewitt, 206 S.C. 409, 34 S.E.2d 764. In Alabama the courts have placed a limitation upon this rule but this limitation is not important under the facts presented in this case. In Alabama if the indictment is changed by amendment (by agreement) or its scope by the fact that the earlier conviction acts as an acquittal of a higher degree of the offense, the better practice is to rearraign the defendant prior to the second trial. Thomas v. State, 255 Ala. 632, 53 So. 2d 340. In the case at bar the indictment has not been *564 changed in any way and once having pleaded to the charge against him, we see no abuse of the court's discretion when the court refused to allow the defendant to reopen the pleading.
In Alabama there are certain statutory regulations with reference to objections to an indictment. In §§ 278, 279 and 286, Title 15, Code of 1940, there are provisions setting forth the method of attacking an indictment. Section 278 provides that the proper method is by plea in abatement. Section 279 provides that in all cases such a plea in abatement must be filed before the plea to the merits. The same is true in section 286. In Clark v. State, 239 Ala. 380, 195 So. 260, it is shown that under the procedural law of this state pleas in abatement must be filed before pleading to the merits or in bar and it is only where the court in its discretion allows pleas to the merits to be withdrawn that pleas in abatement can be filed. The principle here referred to was recently dealt with by the Supreme Court of the United States in Michel v. Louisiana, 350 U.S. 91, 76 S. Ct. 158, 100 L.Ed. . In that case the appellant was indicted on February 19, 1953, and was presented to the court for arraignment on February 23, 1953. The arraignment was continued in order that counsel might be secured. In Louisiana the defendant is required to object to the grand jury before three judicial days after its term and in any case before arraignment. The Supreme Court of the United States in holding that the three day limitation was not a denial of due process, said that a motion to quash is normally a short, simple document, easily prepared in a single afternoon. It then appeared that the term of the grand jury which indicted the defendant expired March 2, 1953. The motion to quash the indictment was filed March 9, 1953, five days after the expiration of the term of the grand jury. Counsel contended that they had not been formally appointed until March 5, 1953. The Supreme Court of Louisiana held that counsel had been appointed on March 2 and the Supreme Court of the United States refused to overturn the findings of the Louisiana Court. It should be noted that in the Michel case, supra, the ground for challenge of the indictment was the systematic exclusion of Negroes from the grand jury. The state court found that question had been waived by the failure to file the motion to quash at the proper time. The Supreme Court of the United States did not disturb that ruling.
But there is more in this case than waiver by failure to make a timely assertion of an alleged right. As we understand the situation the question of the systematic exclusion of Negroes from the grand jury was raised on the first trial of the case and was before the Supreme Court of the United States. The reversal however by the Supreme Court of the United States was apparently based upon the erroneous introduction in evidence of the alleged confession. This is borne out by the citation of authorities on which the reversal is based. Reference to the opinion of this court in Reeves v. State, supra, as well as the record before the court on the former appeal, of which we take judicial notice, Alabama Water Co. v. City of Anniston, 227 Ala. 579, 151 So. 457, shows that the defendant filed a motion to quash the indictment by the grand jury panel on the ground that Negroes had been systematically excluded therefrom. The defendant called two members of the jury commission as his witnesses in support of the motion. This court held that there was no evidence to sustain the motion. In other words the appellant had full opportunity at that time to present the contention now made.
II. There is another basis which the appellant has advanced, because of which he should be allowed to withdraw his pleas of not guilty and not guilty by reason of insanity, in order that he might now attack the indictment against him. It appears to be the insistence of appellant that the indictment was based solely on evidence before the grand jury of an alleged confession obtained from appellant and since the confession has been held invalid, it is argued that there was no evidence before the grand jury on which it could lawfully return an indictment. We are not impressed with the contention here made.
*565 On the first trial the motion to quash the indictment was based on two grounds, (1) that an invalid confession was used before the grand jury and (2) that Negroes were systematically excluded from the grand jury in Montgomery County. The court denied the motion. It is obvious, therefore, that on the first trial the indictment was attacked because of the use before the grand jury of an invalid confession, the change from the original attack now being that the invalid confession is the sole evidence on which the indictment was found. We think it is clear that the appellant had every opportunity to seek to quash the indictment for any reason growing out of the confession and that it comes too late for him now to complain of the invalidity of the indictment. Authorities supra.
Cases such as Allen v. State, 162 Ala. 74, 50 So. 279, cited by appellant, are not in point. In this line of cases the indictment did not meet the requirements of what is now § 419, Title 14, Code of 1940. This statute applies only to seduction cases. The present case is not a seduction case.
The original indictment is not in the present record because the court did not wish to prejudice the defendant by the verdict of guilty shown on the original indictment. The record shows that by stipulation of the parties a copy of the indictment was used and that the original indictment had a list of witnesses on the back thereof. The record certainly does not indicate that the sole evidence before the grand jury when it found the indictment was the alleged confession made by the defendant. Where there is some evidence before the grand jury tending to connect the accused with the offense charged, the lack of evidence upon some essential element of the offense is not a ground for quashing the indictment. Clark v. State, 240 Ala. 65, 197 So. 23, 30. Furthermore, "`Where an investigation was made before the grand jury which returned the indictment, the sufficiency of the evidence adduced before that body cannot be raised on a motion to quash the indictment. * * *'" Clark v. State, supra, and cases cited therein. See Costello v. United States, 350 U.S. 359, 76 S. Ct. 406.
We say again that there was no error in the refusal of the circuit court to permit the withdrawal of the pleas so that the motion might be filed.
III. The appellant filed a motion to quash the venire on the ground that Negroes were systematically excluded from the jury rolls of Montgomery County. A considerable amount of testimony was heard by the court on this motion. Appellant introduced United States Census Reports indicating that in 1950 out of 40,144 males in Montgomery County over the age of twenty-one years, 25,021 were white and 15,123 were non-white. However, the lack of proportional representation of Negroes on the jury does not constitute discrimination under the facts in this case. Brown v. Allen, 344 U.S. 443, 73 S. Ct. 397, 97 L. Ed. 469; Akins v. State of Texas, 325 U.S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692; Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132, certiorari denied 333 U.S. 846, 68 S. Ct. 659, 92 L. Ed. 1129; People v. Price, 371 Ill. 137, 20 N.E.2d 61, certiorari denied 308 U.S. 551, 60 S. Ct. 94, 84 L. Ed. 463; Thomas v. State of Texas, 212 U.S. 278, 29 S. Ct. 393, 53 L. Ed. 512.
The Board of Jury Supervisors of Montgomery County is composed of the two Circuit Judges, Judge Walter B. Jones and Judge Eugene W. Carter, the Clerk of the Circuit Court, John R. Mathews, the Probate Judge, David E. Dunn and the Sheriff of Montgomery County, Sim Butler. Without going into great detail the testimony may be summarized as showing that the Board and the various members thereof had gone through the county in search of a list of qualified jurors. They obtained the list of names from the Association of Colored People as well as from the telephone directory, city directory and the voters list. The Board got names from stores or wherever people congregate and names were secured from everyone possible. A list had been obtained from the *566 old Civic Betterment Society, civic clubs and labor organizations. Six or seven Negroes were on the venire selected to try the case at bar. There is no way of knowing from the cards taken from the jury box whether a name was that of a white or a colored man, except that the fact might be determined sometimes from the address on the card. The testimony showed that some negroes have served on grand juries in Montgomery. The method of drawing and selection of juries was as follows: Fifty names were drawn from the jury box. These persons are summoned and the names of those appearing are put in a hat. The hat is then covered by a handkerchief and eighteen names are drawn out in open court. There was nothing on the card to distinguish white from colored persons. The board considered that it was necessary to consider both the reputation and education of prospective jurors and that an honest effort was made to see that names of competent jurors were placed in the box, whether they were white or colored. There was no discussion as to whether a man was white or colored when his name was being considered for inclusion in the jury box. Voting qualification was not necessarily the criterion for jury duty and some of the jurors were not voters. Any person wanting to be on the jury list need only contact a member of the board and his name would be considered. The board tried not to put the name of anyone on the jury list who was dead, convicted of a crime involving moral turpitude, was a drunkard, or a narcotic addict. There was testimony showing that one list of suggested names came from the head of the N. A. A. C. P. and names were received from people calling in, writing in or visiting. Social groups had not been consulted but civic clubs had been consulted and a number of representative colored people had been consulted for recommendations. One of the judges testified that whenever he saw a Negro sitting on a jury he tried to contact that Negro for more names. There was proof that the supervisors had never refused or failed to put persons on the roll by reason of his color, race or creed. There was testimony by one of the supervisors that he did not know of any venires where more than ten Negroes were listed and he did not remember whether there were any Negroes on the grand jury which indicted the appellant. He testified that the box was last refilled in January 1955, after this case had been argued before the Supreme Court of the United States. The names of leading Negroes were given who were consulted for the purpose of securing the names of Negroes to serve on the juries. There was testimony also from attorneys practicing before the bar who had more or less familiarity with the make up of juries in criminal cases and that they were accustomed in recent years to seeing Negroes serving on grand and petit juries in Montgomery County. A former sheriff and a present bailiff testified that a good many grand juries had Negroes on them and that there had been as many as four in some of them and that Negroes had been seen sitting on juries in criminal cases and that he remembered one jury with five Negroes on the jury. In short, the testimony for the State was all to the effect that there was no discrimination on account of race, color or creed when it came to selection of those to serve on juries of Montgomery County. The appellant put a number of Negroes on the stand as witnesses. These witnesses testified that they had never been called for jury duty or that they had been called but once. Many of these witnesses were pullman porters who are out of town a considerable part of the time. All of the persons put on the stand by the appellant, according to their testimony, had spent very little, if any time around the court house.
In the case of Thomas v. State of Texas, 212 U.S. 278, 29 S. Ct. 393, 53 L. Ed. 512, the Supreme Court of the United States in finding no evidence of discrimination stated that the evidence showed that those responsible for obtaining jurors had fairly and honestly attempted to carry out their duties.
The court heard all of this testimony orally before it and found that there was no discrimination against Negroes and no systematic *567 exclusion of Negroes from service on juries in Montgomery County because of race, creed or color.
A careful consideration of the evidence satisfies us that the great weight of the evidence shows that there was no systematic exclusion of Negroes from the juries in Montgomery County. We consider that the court reached a correct conclusion and acted properly in denying the motion to quash the venire.
IV. It is insisted that the remarks of the solicitor in asking the court to present certain questions to the jury were prejudicial to the rights of appellant. The solicitor asked the court, "Inquire of the venire whether any were members of the N. A. A. C. P.?" The solicitor also stated that it was his information that the case was being financed by that group. It is not necesary that the questions asked the jury venire bring forth answers which provide a ground for challenge for cause. It is proper to have questions which might bring out matters which would enable the party to select an unbiased and unprejudiced jury. Without question attorneys may wish to omit certain persons from the jury even though they might not be able to challenge the jurors for cause. Wide latitude is allowed in the questions asked voir dire in order to give counsel the opportunity for intelligent selection of the final twelve men who will make up the jury. There was no error in this ruling of the court. Rose v. Magro, 220 Ala. 120, 124 So. 296; Burgess v. Singer Mfg. Co., Tex.Civ.App., 30 S.W. 1110; Redus v. State, 243 Ala. 320, 9 So. 2d 914, certiorari denied 318 U.S. 774, 63 S. Ct. 771, 87 L. Ed. 1143, rehearing denied 318 U.S. 802, 63 S. Ct. 852, 87 L. Ed. 1166; §§ 63, 64, Title 30, Code of 1940.
V. When the case reached the stage for taking testimony on the merits, the court excluded the general public from the trial. The court permitted the following persons to remain in the room, the defendant, counsel representing the parties, the court officers, members of the press, radio, television or other news gathering services, uniformed officers, members of the bar, defendant's pastor, members of the family and relatives of the defendant. The Alabama Constitution provides that the court may in its discretion exclude from the court room all persons not necessary in the conduct of a trial in cases of this sort. § 169, Constitution of Alabama of 1901. The legislature has also provided for this same exercise of discretion. § 320, Title 15, Code of 1940. The court was clearly not in error in its ruling in this regard. Similar acts have been upheld in many courts throughout this country. Attention is called to the following authorities in addition to the foregoing constitutional and statutory provisions hereinabove noted. Scott v. State, 249 Ala. 304, 30 So. 2d 689; Wade v. State, 207 Ala. 1, 92 So. 101; Keddington v. State, 19 Ariz. 457, 172 P. 273, L.R.A.1918D, 1093; Robertson v. State, 64 Fla. 437, 60 So. 118; Reagan v. United States, 9 Cir., 202 F. 488, 44 L.R.A.,N.S., 583; Melanson v. O'Brien, 1 Cir., 191 F.2d 963; Sawyer v. Duffy, D.C., 60 F. Supp. 852; Benedict v. People, 23 Colo. 126, 46 P. 637; Commonwealth v. Blondin, 324 Mass. 564, 87 N.E.2d 455; Moore v. State, 151 Ga. 648, 108 S.E. 47; People v. Swafford, 65 Cal. 223, 3 P. 809; Sallie v. State, 155 Miss. 547, 124 So. 650; Baker v. Utecht, 8 Cir., 161 F.2d 304; State v. Callahan, 100 Minn. 63, 110 N.W. 342.
VI. Upon proof that two witnesses on the former trial, who were at that time stationed at the Maxwell Field Air Base in Montgomery, Alabama, were absent from the jurisdiction of the trial court, one of them being in Minnesota and the other in England, the trial court permitted their testimony on the former trial to be read into the record. In this state upon the proper proof of the absence from the jurisdiction of witnesses who have previously given sworn testimony before a tribunal of competent jurisdiction, the earlier testimony may be introduced. Lovejoy v. State, 32 Ala.App. 110, 22 So. 2d 532, certiorari denied 247 Ala. 48, 22 So. 2d 537; Pruitt v. State, 92 Ala. 41, 9 So. 406; Burton v. State, 107 Ala. 68, 18 So. 240; Lett v. State, 124 Ala. 64, 27 So. 256; Percy v. State, 125 Ala. 52, 27 So. 844; Jacobi v. State, 133 Ala. 1, 32 So. 158, appeal dismissed 187 U.S. 133, 23 *568 S. Ct. 48, 47 L. Ed. 106; Wilson v. State, 140 Ala. 43, 37 So. 93. There was no error in this ruling of the court.
VII. There were some written charges refused the appellant. They were affirmative in nature and under the evidence in the case, were properly refused.
As is our duty, we have carefully examined the entire record to see if there was any error prejudicial to the appellant even though not called to our attention by briefs of counsel. We find no such error.
It is our conclusion that the sentence and judgment of the lower court must be upheld.
Affirmed.
All the Justices concur. | June 21, 1956 |
bcbef386-ffb7-4b2b-a5af-54393af0a105 | Ex parte Bruce Brian Daniels. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Bruce Brian Daniels v. Jennifer Hubbard Daniels) | N/A | 1070084 | Alabama | Alabama Supreme Court | rel: 09/19/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1070084
_________________________
Ex parte Bruce Brian Daniels
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Bruce Brian Daniels
v.
Jennifer Hubbard Daniels)
(Lee Circuit Court, DR-06-3;
Court of Civil Appeals, 2060348)
COBB, Chief Justice.
The petition for the writ of certiorari is quashed.
1070084
2
In quashing the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.
2d 155 (1973).
WRIT QUASHED.
See, Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur. | September 19, 2008 |
7f86ab01-90b5-4be3-807e-90df4315a853 | Ex parte Anthony Ray Hinton. PETITION FOR WRIT OF CERTIORARI TO THECOURT OF CRIMINAL APPEALS (In re: Anthony Ray Hinton v. State of Alabama) | N/A | 1051390 | Alabama | Alabama Supreme Court | REL:10/17/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1051390
____________________
Ex parte Anthony Ray Hinton
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Anthony Ray Hinton
v.
State of Alabama)
(Jefferson Circuit Court, CC-85-3363.10 and CC-85-3364.10;
Court of Criminal Appeals, CR-04-0940)
PER CURIAM.
Anthony Ray Hinton challenges his two capital-murder
convictions and the resulting sentences of death. We granted
certiorari review to determine one issue: whether Hinton was
1051390
2
denied effective assistance of counsel because his trial
counsel allegedly failed to procure a competent firearms-
identification expert to testify in his defense.
Background
Hinton was convicted in September 1986 of two counts of
murder made capital because the murders were committed during
the course of a robbery. The jury recommended by a vote of
10-2 that Hinton be sentenced to death on each count. The
trial court accepted the jury's advisory verdict and sentenced
Hinton to death. Hinton appealed.
The Court of Criminal Appeals affirmed the convictions
and sentences. Hinton v. State, 548 So. 2d 547 (Ala. Crim.
App. 1988). This Court then affirmed the judgment of the
Court of Criminal Appeals, Ex parte Hinton, 548 So. 2d 562
(Ala. 1989), and the United States Supreme Court denied
Hinton's petition for certiorari review. Hinton v. Alabama,
493 U.S. 969 (1989).
Hinton subsequently filed a petition pursuant to Rule 32,
Ala. R. Crim. P., challenging his convictions and sentences.
The petition was amended several times. After an evidentiary
hearing, the trial court denied the petition. Hinton appealed
1051390
3
the trial court's denial of his Rule 32 petition to the Court
of Criminal Appeals.
The Court of Criminal Appeals affirmed the judgment of
the trial court. Hinton v. State, [Ms. CR-04-0940, April 28,
2006] ___ So. 2d ___ (Ala. Crim. App. 2006). Hinton filed an
application for rehearing, which was overruled. He then
petitioned this Court for certiorari review.
Hinton's certiorari petition alleges numerous grounds for
review, including, among other things, that evidence existed
that allegedly proved that he was innocent, that the State
failed to disclose certain exculpatory evidence before trial,
and that he had been denied the effective assistance of trial
counsel.
Because the Court of Criminal Appeals' opinion thoroughly
refuted most of Hinton's arguments, we granted the petition as
to only one ground--whether Hinton's trial counsel was
ineffective in failing to procure a competent firearms-
identification expert to testify in Hinton's defense.
Facts
The facts of this case are set out in detail in the Court
of Criminal Appeals' opinion on direct appeal. 548 So. 2d at
1051390
4
550-53. However, we briefly note the following:
This case involves two murders committed during two
separate robberies; there was also a third robbery in which
the victim survived. The two murders involved two factually
similar robberies committed at fast-food restaurants located
in the Birmingham area late at night: in both robberies, the
victims, who were working alone closing the restaurants, were
shot in the head twice with a .38 caliber handgun and were
left in or near the coolers in the restaurants. In the third
robbery, the victim was wounded by a gunshot but was able to
escape. Hinton was later identified as the gunman in the
third robbery, and a .38 caliber revolver was recovered from
Hinton's home (hereinafter "the Hinton revolver").
The testimony at trial tended to show that Hinton was the
gunman in the third robbery; however, the only evidence
linking Hinton to the two murders were forensic comparisons of
the bullets recovered from those crime scenes to the Hinton
revolver. At trial, the State called as witnesses two
forensic examiners, both of whom testified that the bullets
recovered from all three crime scenes had been fired from the
Hinton revolver.
1051390
During
the
Rule
32
proceeding, Hinton
presented
testimony
1
from three expert firearms-identification witnesses. All
three witnesses were unable to conclude whether or not the
bullets recovered from the robberies had been fired from the
Hinton revolver.
5
In rebuttal at trial, the defense presented its own
expert witness, Andrew Payne. Payne testified that he had
examined each of the bullets recovered from the three
robberies and bullets from the Hinton revolver. He concluded
that, based on his examination, the bullets recovered from the
robberies had not been fired from the Hinton revolver.
1
Discussion
Hinton argued in his Rule 32 petition that it was
undisputed
that
a
competent
firearms-identification
expert
was
required for an effective defense at trial because, he
contended, the State's case against him hinged on linking the
bullets recovered from the two murders to the Hinton revolver.
Hinton argued that his trial counsel knew that a competent
expert was indispensable to his case. Hinton argued, however,
that his counsel instead retained a retired engineer, Payne,
who, Hinton maintained, was not qualified and who was not a
competent firearms-identification expert. The State, on the
other hand, argued that Payne was indeed qualified and
1051390
6
competent.
After reviewing the arguments and the record before us,
we conclude that Judge Shaw, in his dissent to the Court of
Criminal
Appeals'
opinion,
correctly
noted
that
a
determination of this issue is premature:
"After carefully reviewing the briefs and after
examining both the record on direct appeal and the
Rule 32 record, I am satisfied that there is only
one issue that has been properly raised and that
merits this Court's intervention -- whether, based
on the standard set out in Strickland v. Washington,
466 U.S. 668 (1984), Hinton's trial counsel rendered
ineffective assistance by retaining and proceeding
to trial with an unqualified firearms witness.
"....
"... I feel that it is premature to reverse the
circuit court's judgment because it does not appear
31
to me, after examining the record on direct appeal
and the Rule 32 record, that a specific finding as
to whether Andrew Payne was a qualified firearms and
toolmarks expert has ever been made. ... Payne
testified that he was a civil engineer with a
military background primarily in heavy weapons and
ordnance and that he had had limited experience
during his career in toolmarks examination of
handguns. To say that Payne was soundly discredited
at trial on cross-examination by the prosecutor
would be an understatement. However, prosecutors
successfully challenge the credibility of even
qualified expert defense witnesses in many cases and
for many reasons. Therefore, to me it is not
dispositive
that
the
prosecutor
successfully
challenged Payne's credibility before the jury.
Rather, the dispositive issue is whether Payne was
a qualified firearms and toolmarks expert.
1051390
7
"... [T]he trial court never specifically found
Payne to be qualified to testify about toolmarks.
Likewise, the record of the Rule 32 proceedings also
reflects that the circuit court made no specific
findings on this question. ...
"....
"... The circuit court did not address directly
the issue whether Payne was qualified to be
testifying in the first place. Additionally,
although the circuit court noted in passing that
Payne had 'been qualified as an expert ballistics
witness for several criminal and civil cases in
Alabama,' that statement does not necessarily
reflect a finding that Payne was qualified to
testify as a toolmarks expert in this case. ...
"'....'
"... It is impossible for me to tell ... whether
Payne was really ever found to be qualified to
testify in court as a firearms and toolmarks expert.
"If Payne was in fact a qualified firearms and
toolmarks expert, even if his qualifications did not
necessarily match up with those possessed by the
State's experts, then I would affirm the circuit
court's judgment denying Rule 32 relief. Sorting
out conflicting testimony from qualified experts
presented at trial is solely within the province of
the jury. Rule 32 is not a mechanism by which those
convicted of criminal offenses may argue many years
after trial that they now have found better expert
witnesses that a newly selected jury should hear.
On the other hand, if Payne was not qualified to
testify authoritatively as a firearms and toolmarks
expert, then, based on the Strickland v. Washington
standard, I would have no choice but to reverse the
circuit court's judgment denying Rule 32 relief on
the
ground
that
trial
counsel
had
rendered
ineffective assistance to Hinton. It goes without
1051390
8
saying that, with knowledge that sufficient funds
were available to have a qualified firearms and
toolmarks expert, no reasonable criminal defense
lawyer would seek out and hire an unqualified
firearms witness. Such a lawyer would be charged
with the knowledge that in a situation where that
witness's testimony was crucial to the pivotal issue
in the case, the witness would be subjected to a
withering cross-examination that could ultimately
result in the complete impeachment of his or her
credibility. In addition, based on the evidence
presented at trial, if the testimony or the only
physical evidence that connected Hinton to the
capital murders was, in fact, presented by a witness
who was not competent to render an opinion, then it
was useless to him in rebutting the opinions of the
State's experts, thereby resulting in prejudice
under the Strickland v. Washington standard.
"....
"This is an extremely important case, not only
for Hinton and the families of the victims of these
horrendous crimes, but also for the people of
Alabama, who must have confidence that the criminal
justice system is capable of achieving its ultimate
purpose--the fair conviction and punishment of the
guilty and the protection of the innocent. It is
regrettable that the wheels of justice have turned
slowly in this case, from the perspectives of both
Hinton and the families of the victims. However, as
I noted in my special writing in Dowdell v. State,
854 So. 2d 1195 (Ala. Crim. App. 2002), the orderly
processing of cases through the courts is an
important value, but it is not the end in itself.
"For these reasons, I would remand this case to
the circuit court for a specific finding as to
whether Andrew Payne was indeed qualified to testify
as an expert firearms and toolmarks examiner based
on his knowledge, skill, experience, training, or
education. Rule 32.9(d), Ala. R. Crim. P., requires
1051390
9
that if an evidentiary hearing is conducted on a
Rule 32 petition, '[t]he court shall make specific
findings of fact relating to each material issue of
fact presented.' A statement of the basis of a
circuit court's decision is essential to afford the
appellant due process. See, e.g., Dedeaux v. State,
976 So. 2d 1045 (Ala. Crim. App. 2005) (remanded for
findings on ineffective-assistance claim); Crum v.
State, 911 So. 2d 34 (Ala. Crim. App. 2004) (same);
Cain v. State, 876 So. 2d 1178 (Ala. Crim. App.
2003) (same). I would also authorize the circuit
court to hold another evidentiary hearing should it
deem it necessary. ... Because, in my view, Hinton's
ineffective-assistance claim turns on whether Payne
was a qualified firearms and toolmarks expert, that
issue should first be addressed by the circuit
court. Until that is done, I do not believe that
this case is in the right posture for us to decide
one way or the other whether the circuit court
exceeded its discretion in denying Rule 32 relief.
_________________
"
The same judge presided over both the trial
31
and the Rule 32 proceedings. For clarity, I will
refer to the 'trial court' when addressing the trial
proceedings
and
to
the
'circuit
court'
when
addressing the Rule 32 proceedings."
Hinton, __ So. 2d at ___ (citations to record and some
footnotes omitted).
We agree with Judge Shaw that "the dispositive issue is
whether Payne was a qualified firearms and toolmarks expert"
and that in denying Hinton's Rule 32 petition the trial court
did not directly rule on "the issue whether Payne was
qualified to be testifying in the first place."
1051390
Our decision should not be interpreted as a decision
2
regarding the merits of Hinton's claim regarding this issue.
10
The State presents an extensive argument in its brief
detailing facts and testimony in the record evidencing that
Payne was a qualified and competent expert in firearms
identification and suggests that this Court could easily make
that determination. However, as Judge Shaw notes, Rule
32.9(d), Ala. R. Crim. P., "requires that if an evidentiary
hearing is conducted on a Rule 32 petition, '[t]he court shall
make specific findings of fact relating to each material issue
of fact presented.'" ___ So. 2d at ___. Under the facts of
this case, it would be premature for this Court to examine
this issue without the trial court's first making specific
findings. See Ex parte Grau, 791 So. 2d 345, 346-47 (Ala.
2000) (holding that it would be "premature" to examine a claim
of ineffective assistance of counsel where the trial court
failed to make specific findings of facts under Rule 32.9(d),
Ala. R. Crim. P.).2
The judgment of the Court of Criminal Appeals is reversed
as to this issue, and the case is remanded for that court to
remand the case for the trial court to enter an order pursuant
to Rule 32.9, Ala. R. Crim. P., making specific findings as to
1051390
11
whether Andrew Payne was indeed qualified and competent to
testify as a firearms-identification expert based on his
knowledge, skill, experience, training, or education. "On
remand, the trial court may conduct such further proceedings
or take such other evidence as it deems necessary." Pardue v.
State, 793 So. 2d 838, 846 (Ala. Crim. App. 1998) (emphasis
added).
REVERSED AND REMANDED.
See, Lyons, Woodall, Stuart, Bolin, Parker, and Murdock,
JJ., concur.
Smith, J., concurs specially.
Cobb, C.J., recuses herself.
1051390
12
SMITH, Justice (concurring specially).
I concur in the main opinion. As the main opinion notes,
this Court, by granting certiorari review as to only one
issue, denied certiorari review as to several other issues
raised in the certiorari petition including, among other
things, that new ballistics evidence proved that Hinton was
innocent.
At Hinton's original trial, experts for the State linked
six bullets recovered from the murder scenes and the third
shooting to the revolver seized from Hinton's mother's house
("the Hinton revolver"). Hinton's most compelling argument is
that his expert witnesses demonstrated at the Rule 32, Ala. R.
Crim. P., proceeding that the six bullets could not "be linked
to a single weapon." However, the testimony actually
established that the experts were unable to determine whether
or not all six bullets had been fired from the same weapon.
Hinton's expert at the Rule 32 proceeding, John Dillon, Jr.,
stated: "in all six cases I was not able to determine whether
or not they were fired by [the Hinton revolver]." The testing
was inconclusive, and the experts did not exclude the
possibility that the Hinton revolver fired those bullets.
1051390
"Timing" refers to when the cylinder of a revolver
3
rotates to place a chamber in line with the axis of the
forcing cone and barrel of the firearm. When a cylinder
chamber is not correctly in line with the forcing cone and
barrel, a "timing" problem occurs and distinctive markings can
be produced on the projectile when the revolver is fired.
13
Hinton also claimed that the Hinton revolver "was
mechanically incapable" of firing the bullets recovered from
the third shooting. Specifically, Hinton's Rule 32 experts
testified that those bullets contained a defect produced by a
timing problem. The Hinton revolver had a timing problem,
3
but the experts were unable to reproduce the markings. This
testimony, however, was inconclusive and did not show that the
Hinton revolver could not produce the marking. Specifically,
the testing to produce the timing error was limited: the
experts tested only one cylinder of the gun, and their test
consisted of manually holding the gun cylinder out of time
with their hands. Additionally, one expert testified that the
timing problem found in the Hinton revolver would not always
occur.
Although the testimony of Hinton's experts was certainly
relevant to the claims in the Rule 32 proceeding, the evidence
was inconclusive and did not exclude the possibility that the
1051390
14
Hinton revolver fired the bullets. To say that the evidence
shows that the bullets cannot "be linked to a single weapon"
thus overstates the evidence. | October 17, 2008 |
82f5bfe7-a266-4741-8691-58625da24a03 | Ex parte Morgan County Commission. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Thelma Sue Eckles v. Fort Dearborn Life Insurance Company et al.) | N/A | 1071545 | Alabama | Alabama Supreme Court | REL: 10/10/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1071545
____________________
Ex parte Morgan County Commission
PETITION FOR WRIT OF MANDAMUS
(In re: Thelma Sue Eckles
v.
Fort Dearborn Life Insurance Company et al.)
(Morgan Circuit Court, CV-07-249)
STUART, Justice.
1071545
2
The Morgan County Commission ("the Commission") petitions
this Court for a writ of mandamus directing the Morgan Circuit
Court to vacate its order denying the Commission's motion for
mediation and to enter an order ordering mediation and
appointing a mediator. We grant the petition and issue the
writ.
Facts
The underlying civil action was filed by Thelma Sue
Eckles, the widow of Jimmy O. Eckles and the beneficiary of a
life-insurance policy issued on Jimmy's life by Fort Dearborn
Life Insurance Company, after she allegedly received less
benefits than she maintains the policy provided for. Eckles,
an employee of the Commission, sued Fort Dearborn and The
Wenzler Agency, Inc., the agent that sold the Commission the
Fort Dearborn life-insurance policy on Jimmy's life. Fort
Dearborn filed a third-party complaint against the Commission
to recover any damages Eckles might recover from Fort
Dearborn.
The Commission filed a motion, citing § 6-6-
20(b)(2), Ala. Code 1975, and Rule 2, Alabama Civil Court
Mediation Rules, asking the Morgan Circuit Court to require
the parties to submit all issues in the case to mediation.
1071545
3
The circuit court denied the motion, stating that the court
was "of the opinion that mediation [was] not appropriate at
this time."
Standard of Review
"'"A
writ
of
mandamus
is
an
extraordinary remedy that requires the
showing of: (1) a clear legal right in the
petitioner to the order sought; (2) an
imperative duty on the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) the properly invoked jurisdiction
of the court." Ex parte McNaughton, [728
So. 2d 592, 594] (Ala. 1998)....'
"Ex parte Napier, 723 So. 2d 49, 52 (Ala. 1998)."
Ex parte Southern United Fire Ins. Co., 843 So. 2d 151, 154-
55 (Ala. 2002)(footnote omitted).
Discussion
The Commission contends that the circuit court exceeded
the scope of its authority in denying the Commission's request
for mediation.
Section 6-6-20, Ala. Code 1975, provides:
"(a) For purposes of this section, 'mediation'
means a process in which a neutral third party
assists the parties to a civil action in reaching
their own settlement but does not have the authority
to force the parties to accept a binding decision.
1071545
4
"(b) Mediation is mandatory for all parties in
the following instances:
"(1) At any time where all parties
agree.
"(2) Upon motion by any party. The
party asking for mediation shall pay the
costs of mediation, except attorney fees,
unless otherwise agreed.
"(3) In the event no party requests
mediation, the trial court may, on its own
motion, order mediation. The trial court
may allocate the costs of mediation,
except
attorney fees, among the parties.
"(c) If any party fails to mediate as required
by this section, the court may apply such sanctions
as it deems appropriate pursuant to Rule 37 of the
Alabama Rules of Civil Procedure. ..."
(Emphasis added.) See also Mackey v. Mackey, 799 So. 2d 203
(Ala. Civ. App. 2001)(recognizing that if a party moves for
mediation pursuant to § 6-6-20(b)(2), Ala. Code 1975, a trial
court is required to order mediation).
Rule 2 of the Alabama Civil Court Mediation Rules also
recognizes that a court is required to order mediation if one
party so requests, stating:
"Parties to a civil action may engage in
mediation by mutual consent at any time. The court
in which an action is pending shall order mediation
when one or more parties request mediation or it may
order mediation on its own motion. In all instances
except where the request for mediation is made by
1071545
5
only one party, the court may allocate the costs of
mediation, except attorney fees, among the parties.
In cases in which only one party requests mediation,
the party requesting mediation shall pay the costs
of mediation, except attorney fees, unless the
parties agree otherwise.
"Upon entry of an order for mediation, the
proceedings as to the dispute in mediation may be
stayed for such time as set by the court in its
order of mediation. Upon motion by any concerned
party, the court may, for good cause shown, extend
the time of the stay for such length of time as the
court may deem appropriate."
(Emphasis added.)
Although a trial court has discretion as to whether to
stay the proceedings during the mediation, the trial court has
to order mediation upon request of a party. See Comment to
Amendment to Rule 2 Effective June 26, 2002, which states:
"Section 6-6-20, Ala. Code 1975, allows one
party to require a court to order mediation of a
dispute, irrespective of the position of any other
party to the dispute. ...
"....
"Rule 2 as originally adopted provided in the
last paragraph that the underlying proceedings
'shall be stayed'; the change to 'may be stayed'
provides
greater
flexibility
to
courts
and
disputants in staying all or part of a dispute
during the course of mediation."
Here, the circuit court exceeded the scope of its
discretion in denying the Commission's request for mediation.
1071545
6
Although
the
circuit
court
has
discretion
to
determine
whether
to stay any or all of the proceedings during mediation, it
does not have the discretion to deny the Commission's motion
for mediation.
Conclusion
The Commission has properly invoked the jurisdiction of
this Court, it has no other remedy, and it has established a
clear legal right to mediation; the circuit court has an
imperative duty to order mediation, pursuant to § 6-6-
20(b)(2), Ala. Code 1975. Therefore, we grant the
Commission's petition and direct the Morgan Circuit Court to
vacate its order denying mediation and to enter an order
ordering mediation, pursuant to § 6-6-20(b), Ala. Code 1975.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur. | October 10, 2008 |
208304fc-1ec7-45fd-bdba-3026822932a0 | Dan Fox et al. v. City of Huntsville | N/A | 1051276 | Alabama | Alabama Supreme Court | REL: 11/26/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1051276
____________________
Dan Fox et al.
v.
City of Huntsville
Appeal from Madison Circuit Court
(CV-04-1398)
MURDOCK, Justice.
Dan Fox, Ken Guffey, Paul Jones, Phil Kramer, Charlie
Lifer, Randy Mearse, Coleman Sanders, Floyd Smith, and Danny
Vaughn, police officers for the City of Huntsville Police
Department ("the officers"), appeal from a denial of their
1051276
As a general rule, TTF officers use motorcycles to
1
perform their duties.
2
petition for a common-law writ of certiorari filed against the
City of Huntsville ("the City") in a payroll dispute. We
reverse.
I. Facts and Procedural History
At the time of the events in question, the officers were
patrol-car police officers. Beginning around January or
February 2002, the officers were regularly assigned traffic-
patrol duties, which included issuing a certain number of
traffic tickets and performing traffic-flow services for
funerals in the Huntsville area. In April 2002, the officers
filed a grievance against the City asserting that they were
performing traffic task force ("TTF") duties without receiving
the mandatory five percent increase in pay that TTF officers
receive for performing their special duties.
1
The chief of police for the City, Compton Owens,
responded to the grievance on April 23, 2002, with a written
denial, in which he explained that in his view the officers
were not entitled to the five percent pay increase because
"[e]nforcement of vehicle and traffic laws is a requirement
for all police officers without regard to where they are
1051276
3
assigned," whereas TTF officers receive extra pay because they
are deemed by Chief Owens to be in a "special assignment
capacity" under City of Huntsville Ordinance No. 97-216, §
8.7(A). Section 8.7(A) provides, in pertinent part:
"Police Officers, while serving at the direction of
the Chief of Police in a special assignment capacity
to Criminal Investigation Division, Internal Affairs
Division, Special Response, Bomb Squad, or other
comparable assignment as determined by the Chief of
Police, shall receive a five (5) percent higher rate
of pay than the established rate of pay for the
employee(s) concerned."
(Emphasis added.)
The officers appealed Chief Owens's decision to the
City's personnel committee ("the personnel committee"),
maintaining that, if they were going to be assigned traffic-
patrol duties at specified times, they should be considered to
be on special assignment and therefore were entitled to
receive the same rate of pay as TTF officers. For its part,
the City contended that the officers' grievance constituted an
impermissible challenge to a validly adopted ordinance.
Section 14.1(B)(1) of the Personnel Policies and Procedures
Manual for the City ("the manual") provides that "[a]
grievance shall not be filed to," among other things, "contest
the validity of an adopted, approved ordinance or a properly
1051276
4
enacted resolution of the City Council." City of Huntsville
Ordinance No. 94-375 (Personnel Policies and Procedures
Manual), § 14.1.
The personnel committee heard arguments, testimony, and
accepted written evidence in the course of the grievance
proceeding. On February 20, 2003, the personnel committee
issued its decision, stating, in pertinent part:
"The Personnel Committee unanimously concludes
there is sufficient evidence to support your
grievance. Ordinance 97-216 states that Police
officers while serving at the direction of the Chief
of Police in a Special Assignment shall receive
Special Assignment Pay. The Personnel Committee by
Ordinance 9[7]-216 does not have the authority to
grant you Special Assignment Pay, nor does the
Personnel Committee have the authority to grant you
any retroactive pay. The Personnel Committee
recommends that the Chief of Police re-evaluate his
policy of Special Assignment Pay to the Traffic Task
Force to make sure it is equitable to those officers
who are performing Traffic Task Force Assignments or
duties."
On March 6, 2003, the officers appealed the decision of
the personnel committee to the Huntsville City Council ("the
city council"), contending that the personnel committee erred
in determining that it did not have the power to order the pay
increase for the officers. The city council, pursuant to the
grievance procedures spelled out in the manual, reviewed all
1051276
5
the evidence from the personnel committee grievance hearing
and received some additional testimony. The city council
issued its decision on December 11, 2003, stating, in
pertinent part:
"[T]he City Council, by majority vote on December 4,
2003, modified the decision of the Personnel
Committee. The City Council determined that the
grievance contests the validity of an adopted,
approved ordinance or a properly enacted resolution
of the City Council. Ordinance No. 97-216, upon
which your grievance is based, gives the Chief of
Police the authority and discretion to grant special
assignment pay under the circumstances complained of
in your grievance. Accordingly, Section 14.1(B)(1)
of the Person[nel] Policies and Procedures Manual,
as amended, bars your grievance."
There is no statute or ordinance specifying a method of
appealing an employment decision by the city council.
Accordingly, the officers sought review of the city council's
decision by filing a petition for a common-law writ of
certiorari in the Madison Circuit Court on June 8, 2004. The
officers contended that the city council had impermissibly
substituted its judgment for that of the personnel committee
in ruling that their grievance was barred by § 14.1(B)(1) of
the manual. Following the submission of briefs and two
hearings at which oral argument was presented, the circuit
court issued a written decision on April 20, 2006. The
1051276
Counsel for both sides stipulated in the circuit court
2
that Chief Owens had accepted the recommendation of the
personnel committee by limiting TTF officers' pay to the same
rate as other police officers' pay.
6
circuit court emphasized the limited nature of the review
available on a petition for a common-law writ of certiorari,
and it agreed with the officers that they were not challenging
the validity of Ordinance No. 97-216. The circuit court
concluded, however, that the city council "'adopted' the
judgment of the personnel committee rather than substituting
its judgment for that entity." Because "[t]he Personnel
Committee denied the petitioning officers' grievance and the
[City] Council affirmed the decision of the Personnel
Committee," the circuit court concluded that it lacked "the
statutory authority to quash the decision made by the City
Council." The officers appeal from that decision.
2
II. Standard of Review
"'Alabama law is clear that, in the absence of a right of
appeal,
a
party
seeking
review
of
a
ruling
by
an
administrative agency may petition the circuit court for a
common law writ of certiorari.'" Ex parte Boykins, 862 So. 2d
587, 593 (Ala. 2002) (quoting State Personnel Bd. v. State
Dep't of Mental Health & Retardation, 694 So. 2d 1367, 1371
1051276
7
(Ala. Civ. App. 1997)). See also Hardy v. Birmingham Bd. of
Educ., 634 So. 2d 574, 576 (Ala. Civ. App. 1994) (explaining
that "where an applicable statute provides no right of appeal
and no statutory certiorari review, the only means of review
is the common law writ of certiorari").
"'[T]he standard
of
review
for
certiorari
limits
the scope of review to questions of law and does not
extend to review of the weight and preponderance of
the evidence.' Parker v. Reaves, 531 So. 2d 853
(Ala. 1988). Thus, 'if there is any legal evidence
to support the decision of the lower tribunal, such
is conclusive on the reviewing court.' Lovelady v.
Lovelady, 281 Ala. 642, 206 So. 2d 886 (1968). In
other words, the only question for the reviewing
court is 'whether the evidence will justify the
finding [of the lower tribunal] as a legitimate
inference from the facts proved regardless of
whether such inference would or would not have been
drawn by the appellate tribunal.' Alabama Electric
Cooperative v. Alabama Power Co., 278 Ala. 123, 126,
176 So. 2d 483, 485 (1965)."
Sanders v. City of Dothan, 642 So. 2d 437, 440 (Ala. 1994).
Furthermore, because the circuit court's review on a common-
law writ of certiorari was limited to the record before the
city council, see, e.g., Sanders, 642 So. 2d at 440 n.4, this
Court reviews the circuit court's decision de novo.
III. Analysis
The officers contend that the circuit court erred in
ruling that the city council in effect "adopted" the ruling of
1051276
8
the personnel committee. They argue that the city council in
fact substituted its own judgment for that of the personnel
committee, which the guidelines in the manual specifically
prohibit it from doing. The City argues that those same
guidelines authorize the city council, by a majority vote, to
modify the decision of the personnel committee in whole or in
part, which, the City argues, is what the city council did.
Ultimately, according to the City, the result reached by the
city council was the same as that reached by the personnel
committee, so the city council "essentially affirmed the
decision of the Personnel Committee." City's brief, p. 21.
Section 14.2 of the manual provides the guidelines under
which the city council reviews an appeal from the personnel
committee:
"The [City] Council shall consider the record on
appeal and any supplemental testimony presented at
the hearing, together with the arguments of each
party made at the hearing, and may question the
parties concerning any relevant matter. A majority
vote of those members elected to the City Council is
required in order to alter a decision of the
Personnel Committee. If the City Council is unable,
by a majority of those members elected to the [City]
Council, to alter the decision of the Personnel
Committee, then the decision of the Personnel
Committee shall stand unmodified. The [City]
Council shall render a decision within fourteen (14)
days after the hearing, either upholding the
1051276
9
[Personnel] Committee's decision or modifying it in
part or in full. The [City] Council shall state the
reason(s) for any modification of the Personnel
Committee's
decision
and
shall
give
specific
instructions, in writing, as to the steps to be
taken to carry out its decision.
"The Standard of Review before the City Council
shall be whether the record before the Personnel
Committee, as it may be supplemented before the
[City] Council, contains evidence supporting the
findings of the Personnel Committee. Determination
of the weight and credibility of the evidence before
the Personnel Committee is for the [Personnel]
Committee, and not the [City] Council, to decide,
but the [City] Council may consider the weight and
credibility of testimony actually presented before
the [City] Council in rendering any decision on the
grievance. The [City] Council may not substitute
its judgment for that of the Personnel Committee as
long as there is sufficient evidence in the record
or in supplemental form to support the Personnel
Committee's findings and decision."
(Emphasis added.)
It is clear from the quoted portion of § 14.2 of the
manual that the city council does possess the authority to
amend, by a majority vote, in whole or in part the personnel
committee's decision. It is also clear, however, that the
city council's ability to modify the personnel committee's
decision is limited by the standard of review imposed upon the
city council. If sufficient evidence exists in the record to
support the finding of the personnel committee, then the city
1051276
10
council may not substitute its judgment for that of the
personnel committee as to that finding.
The personnel committee explicitly determined that the
officers presented sufficient evidence to support their
grievance that being assigned traffic-patrol duty at specified
times constituted "a special assignment" that should entitle
them to receive "special assignment pay." The personnel
committee
declined
to
award the salary-related relief
requested by the officers, however, because of its conclusion,
as a matter of law, that it had no authority to do so. For
its part, the city council concluded that the officers'
grievance did not even fall within the types of grievances
allowed under § 14.1(B)(1) of the manual, citing the
prohibition in that section of grievances "to contest the
validity of an adopted, approved ordinance or a properly
enacted resolution of the City Council."
In actuality, however, the officers were not challenging
the validity of § 8.7(A) of Ordinance No. 97-216, which
authorizes a five percent pay increase for any police officer
placed in a "special assignment capacity" by the chief of
police. To the contrary, they were asking that the ordinance
1051276
11
be enforced to their benefit. The officers contended that
being assigned to traffic-patrol duty at specified times when
it is not within the regular duties of a vehicle patrol
officer is akin to being on the TTF, a designated "special
assignment."
The circuit court concluded that even though the city
council had incorrectly categorized the officers' grievance as
a challenge to the validity of the ordinance, the court had no
authority to do anything other than affirm that decision
because, it reasoned, the city council had reached the same
result as had the personnel committee and therefore, in
effect, had "'adopted' the judgment of the personnel committee
rather than substituting its judgment for that entity." The
circuit court erred in this reasoning. Although the personnel
committee determined that there was sufficient evidence to
support
the
officers'
grievance,
the
city
council's
modification of the personnel committee's decision never even
addressed this issue and therefore did not implicate the
deferential standard of review found in § 14.2 of the manual.
(Nor did the city council address the other determination made
by the personnel committee, i.e., that it had no authority to
1051276
12
grant the officers' requested relief.) Instead, the city
council determined that § 14.1(B)(1) of the manual barred the
officers' grievance altogether.
In other words, although it is true that the city council
did not substitute its judgment for that of the personnel
committee on the issue whether the officers' presented
sufficient evidence to sustain their grievance, it is true
only because the city council did not reach this issue. It
did not reach this issue because it mistakenly treated the
officers' grievance as an attempt to contest the validity of
an ordinance, which was not permitted as a matter of law,
rather than as an attempt to enforce the ordinance, which it
plainly was.
A common-law writ of certiorari is available to "correct
errors of law apparent on the face of the record. ...[T]he
only matter to be determined is the quashing, or affirmation,
of the proceedings brought up for review." Jefferson County
v. Berkshire Dev. Corp., 277 Ala. 170, 173, 168 So. 2d 13, 16
(1964). It was legal error for the city council to foreclose
any determination on the officers' grievance by categorizing
it as a challenge to the validity of an ordinance. Once the
1051276
13
circuit court reached this conclusion, the proper course of
action was to grant the writ and quash the proceedings below
because the city council never made a determination about the
sufficiency
of
the
evidence
concerning
the
officers'
grievance.
Accordingly, because the circuit court erroneously
affirmed the proceedings before the city council, we reverse
its judgment and remand the case with the instruction that
the circuit court grant the writ to allow the city council to
further consider the officers' grievance.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur. | November 26, 2008 |
b798571f-fe12-49ca-a285-eb864cfc509c | John Trotman Carroll v. Alton D. Williams | N/A | 1060832 | Alabama | Alabama Supreme Court | rel: 09/12/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1060832
_________________________
John Trotman Carroll
v.
Alton D. Williams
Appeal from Dale Circuit Court
(CV-05-221)
BOLIN, Justice.
John Trotman Carroll appeals from a default judgment
entered in favor of Alton D. Williams on Williams's cross-
claim against Carroll. We affirm.
1060832
2
Facts and Procedural History
On April 12, 2004, Southern Sports, Inc., which operated
a retail sporting-goods store, executed a promissory note for
$141,761.56 in favor of The Commercial Bank of Ozark
("Commercial Bank"), which was secured by a mortgage in favor
of Commercial Bank on the store premises. Additionally,
Southern Sports' shareholders, Carroll and Williams, executed
individual
personal
guarantee
agreements
guaranteeing
Southern
Sports' obligation on the indebtedness owed Commercial Bank.
On August 5, 2005, Commercial Bank sued Southern Sports
and Carroll and Williams, as individual guarantors, to recover
the deficient balance of $103,730.68 on the promissory note
plus interest and a reasonable attorney fee. Southern Sports,
Carroll, and Williams were served with the complaint on August
8, 2005.
On September 16, 2005, Commercial Bank filed with the
trial court an "Application, Affidavit, and Entry of Default
and Default Judgment" seeking a default judgment against
Carroll. On October 3, 2005, the trial court entered a
1060832
It appears from the record that Commercial Bank offered
1
to release Williams from any further obligation under the
guarantee agreement upon payment of one-half of the judgment.
Williams executed a promissory note for $50,000 in favor of
Commercial Bank on December 14, 2005. It appears that Carroll
satisfied the balance of the judgment in May 2006.
3
default judgment in favor of Commercial Bank and against
Carroll in the amount of $120,444.05.
1
On December 16, 2005, Williams cross-claimed against
Carroll alleging breach of contract, breach of a fiduciary
relationship, and conversion. Carroll was served with a copy
of the cross-claim complaint on January 11, 2006. Carroll
failed to answer the cross-claim or otherwise to defend
against the cross-claim.
On September 13, 2006, Williams moved the trial court for
a default judgment pursuant to Rule 55, Ala. R. Civ. P.
Williams supported his motion for a default judgment with his
deposition and other documents, which indicated the following:
Williams and Carroll were shareholders in Southern Sports, a
corporation that operated a retail sporting-goods store.
Williams became a shareholder in August 1995, after purchasing
for $20,000 49 shares of Southern Sports' 99 authorized
shares. Williams served as Southern Sports' secretary; he
wrote checks, made bank deposits, and completed tax forms,
1060832
4
including
employee
income-withholding
and
FICA
forms.
Williams was required to execute a personal guarantee on the
$141,761.56 promissory note with Commercial Bank, which was
also secured by a mortgage on Southern Sports' property and
its inventory. Additionally, store vendors required Williams
to execute personal guarantees on purchases of store
inventory. Carroll assured Williams that the personal
guarantees would never be an issue because he would satisfy
those obligations from Southern Sports' earnings and that "in
the worst case ... [Carroll] would pay it if it ever came to
that."
Williams subsequently discovered that Carroll was
taking money from Southern Sports. Carroll would take money
from the cash register at the Southern Sports' store and write
himself checks from Southern Sports' bank account. He would
also pay personal debts and expenses out of Southern Sports'
bank account. On one occasion Carroll borrowed $10,000 from
Peoples Bank, supposedly to apply against Southern Sports'
debts; however, Carroll kept the money for himself and then
repaid the loan from Southern Sports' funds. When Williams
confronted him, Carroll responded by saying, "[W]hat [are you]
going to do about it?"
1060832
5
Williams stated that Carroll refused to pay vendors, that
he discarded bills in the garbage, and that he refused to pay
the state and federal income-withholding and FICA taxes. In
October 2003, Carroll denied Williams access to Southern
Sports' bank accounts and prevented him from signing checks
and paying bills. Williams states that, in addition to being
sued by Commercial Bank, he was sued on his personal guarantee
by several vendors, and he remains liable for a substantial
tax debt and penalty.
On September 25, 2006, the trial court entered a default
judgment in favor Williams. The trial court awarded Williams
$114,110 on the breach-of-contract claim; $89,635 on the
breach-of-fiduciary-relationship and conversion claims; and
$100,000 in punitive damages.
On October 24, 2006, Carroll moved the trial court to set
aside the default judgment, stating as grounds:
"1. That [Carroll's] default is excused by reason of
fact that he was unrepresented by an attorney at the
time the suit was initially filed or when the Cross-
Claim was filed by [Williams];
"2. That [Carroll] did not realize that he had to
respond to the Cross-Claim;
"3. That [Carroll] thought that the case was over
with when he paid his share of the note to
1060832
6
Commercial Bank on or about May 17, 2006, as
evidenced by the judgment release attached hereto
and marked Exhibit A.
"4. That [Carroll] was under the misunderstanding
that the payment to The Commercial Bank resolved all
issues in the above styled cause.
"5. That [Carroll] has a meritorious defense against
Count 1 in that he did not breach a contract with
[Williams]. Further, [Carroll] is not guilty of
breach of any contract with [Williams].
"6. [Carroll] has a meritorious defense against
Count 2 in that he did not breach a fiduciary
relationship to [Williams]. Further, that the award
of punitive damages are based upon evidence that is
inadmissable and not true.
"7. [Carroll] has a meritorious defense against
Count 3 in that he did not convert Two hundred
thousand ($200,000) Dollars of [Williams's] money to
his own use.
"8. [Carroll] represents into this Court that he can
provide evidence to disprove statements made in the
affidavits supporting said default judgment and the
ultimate award of damages as set out in the default
judgment entered by this court on September 25,
2006."
The only evidence presented by Carroll in support of the
motion was a "judgment release" indicating that Carroll's
original obligation to Commercial Bank had been satisfied.
Carroll's motion to set aside the default judgment was
originally
set
for
a
hearing
on
December
18,
2006.
Subsequently, the hearing on Carroll's motion to set aside the
1060832
On February 22, 2007, the parties purported to file,
2
pursuant to Rule 59.1, Ala. R. Civ. P., a joint motion to
extend the time to rule on Carroll's motion to set aside the
default judgment. However, the extension of the 90-day period
provided for in Rule 59.1 "must be of record before the 90-day
period expires, because any purported extension after the 90
days is a nullity." Ex parte Caterpillar, Inc., 708 So. 2d
142, 143 (Ala. 1997).
7
default judgment was continued on several occasions by motion
of both parties. The motion to set aside was denied by
operation of law on January 22, 2007. See Rule 59.1, Ala. R.
Civ. P. Carroll filed this appeal on March 2, 2007.
2
Standard of Review
This Court has stated:
"A trial court has broad discretion in deciding
whether to grant or deny a motion to set aside a
default judgment. Kirtland v. Fort Morgan Auth.
Sewer Serv., Inc., 524 So. 2d 600 (Ala. 1988). In
reviewing an appeal from a trial court's order
refusing to set aside a default judgment, this Court
must determine whether in refusing to set aside the
default judgment the trial court exceeded its
discretion. 524 So. 2d at 604. That discretion,
although broad, requires the trial court to balance
two competing policy interests associated with
default judgments: the need to promote judicial
economy and a litigant's right to defend an action
on the merits. 524 So. 2d at 604. These interests
must
be
balanced
under
the
two-step
process
established in Kirtland.
"We begin the balancing process with the
presumption that cases should be decided on the
1060832
8
merits whenever it is practicable to do so. 524 So.
2d at 604. The trial court must then apply a
three-factor analysis first established in Ex parte
Illinois Central Gulf R.R., 514 So. 2d 1283 (Ala.
1987), in deciding whether to deny a motion to set
aside a default judgment. Kirtland, 524 So. 2d at
605. The broad discretionary authority given to the
trial court in making that decision should not be
exercised without considering the following factors:
'1) whether the defendant has a meritorious defense;
2) whether the plaintiff will be unfairly prejudiced
if the default judgment is set aside; and 3) whether
the default judgment was a result of the defendant's
own culpable conduct.' 524 So. 2d at 605."
Zeller v. Bailey, 950 So. 2d 1149, 1152-53 (Ala. 2006).
Discussion
Carroll argues on appeal that because his motion to set
aside the default judgment was denied by operation of law, the
trial court did not apply the analysis set forth above from
Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So.
2d 600 (Ala. 1988). Therefore, he contends, the default
judgment entered in favor of Williams must be reversed and the
case remanded so that the trial court can conduct an
evidentiary hearing and apply the Kirtland analysis.
The law is well settled in Alabama that the defaulting
party has the initial burden of demonstrating the existence of
the three Kirtland factors. Ex parte Family Dollar Stores of
Alabama, Inc., 906 So. 2d 892, 899-900 (Ala. 2005); Phillips
1060832
9
v. Randolph, 828 So. 2d 269, 278 (Ala. 2002); and Kirtland,
524 So. 2d at 605-08. The only Kirtland factor addressed by
Carroll in his motion to set aside the default judgment was
the meritorious-defense factor. Carroll's claims –- that he
was not represented by counsel; that he was unaware that a
response to the cross-claim was required; that he thought the
case was over; and that he was under a misunderstanding –- are
completely irrelevant to the Kirtland analysis. With regard
to a meritorious defense in the context of a Kirtland
analysis, this Court has stated:
"[A] defaulting party has satisfactorily made a
showing of a meritorious defense when allegations in
an answer or in a motion to set aside the default
judgment and its supporting affidavits, if proven at
trial, would constitute a complete defense to the
action, or when sufficient evidence has been adduced
either by way of affidavit or by some other means to
warrant submission of the case to the jury. ...
"The allegations set forth in the answer and in
the motion must be more than mere bare legal
conclusions without factual support; they must
counter the cause of action averred in the complaint
with specificity--namely, by setting forth relevant
legal grounds substantiated by a credible factual
basis.
Such
allegations
would
constitute
a
'plausible defense.'"
Kirtland, 524 So. 2d at 606 (emphasis added).
1060832
10
Carroll has failed to argue, or even to allege, that
Williams would not be unfairly prejudiced if the default
judgment is set aside and that the default judgment was not a
result of Carroll's own culpable conduct. Carroll's assertion
that he has a meritorious defense to Williams's claim is
nothing more than a bare legal conclusion unsupported by
affidavit or other evidence. The sole piece of evidence
presented by Carroll in support of his motion was the
"judgment release" indicating that he had satisfied his
original obligation to Commercial Bank. However, that
document has no significance whatsoever to the claims asserted
by Williams against Carroll. Accordingly, we conclude that
Carroll has failed to meet his initial burden under the
Kirtland analysis. Because Carroll has failed to satisfy his
initial burden under the Kirtland analysis, we will not hold
the trial court in error for allowing Carroll's motion to set
aside the default judgment to be denied by operation of law
without having applied the Kirtland analysis. See Rudolph v.
Philyaw, 909 So. 2d 200 (Ala. Civ. App. 2005).
1060832
11
Conclusion
The default judgment in favor of Williams is affirmed.
AFFIRMED.
Cobb, C.J., and Lyons, Woodall, and Stuart, JJ., concur. | September 12, 2008 |
4ebe65b8-ad70-43f4-9967-1f012164ec89 | Ex parte Mike Hale, sheriff of Jefferson County. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Emma Jean Jenkins, as the personal representative and administratrix of the estate of Belinda Denise Hodge, deceased v. Mike Hale, individually and in his official capacity as sheriff of Jefferson County, Alabama, et al.) | N/A | 1070252 | Alabama | Alabama Supreme Court | REL: 5/23/08
REL: 10/10/08 as modified on denial of rehearing
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
_________________________
1070252
_________________________
Ex parte Mike Hale, sheriff of Jefferson County
PETITION FOR WRIT OF MANDAMUS
(In re: Emma Jean Jenkins, as the personal representative
and administratrix of the estate of Belinda Denise Hodge,
deceased
v.
Mike Hale, individually and in his official capacity as
sheriff of Jefferson County, Alabama, et al.)
(Jefferson Circuit Court, CV-06-7109)
SEE, Justice.
1070252
2
Emma
Jean
Jenkins,
in
her
capacity
as
personal
representative and administratrix of the estate of Belinda
Denise Hodge, filed this action against numerous defendants,
including Jefferson County Sheriff Mike Hale, whom she sued
individually and in his official capacity. During the course
of the litigation, Jenkins dismissed the claims against
Sheriff Hale in his official capacity. Sheriff Hale then
moved the trial court to dismiss Jenkins's remaining claims
against him on the basis that he is immune from liability.
The Jefferson Circuit Court denied Sheriff Hale's motion, and
Sheriff Hale now petitions this Court for the writ of mandamus
directing the trial court to dismiss the claims asserted
against him. We grant the petition in part and deny it in
part.
Facts and Procedural History
"Because we are reviewing a trial court's ruling on a
motion to dismiss, we treat the allegations in [Jenkins]'s
complaint as true." Ex parte Davis, 930 So. 2d 497, 498 (Ala.
2005) (citing Creola Land Dev., Inc. v. Bentbrooke Housing,
L.L.C., 828 So. 2d 285, 288 (Ala. 2002)). Jenkins alleges
that Sheriff Hale violated Hodge's constitutional rights
1070252
The materials before this Court do not indicate to whom
1
such a request is made, only that Hodge made her request for
"immediate
medical
care"
to
"Sheriff
Hale
and
other
defendants."
3
following her arrest and detention at the Jefferson County
jail and that those violations caused Hodge's death. Hodge
was arrested on August 11, 2004, and was detained in the
Jefferson County jail. Four days later, Hodge was taken to
Cooper Green Hospital because of pain associated with surgery
on Hodge's back performed several months before her arrest.
Hodge was transferred from Cooper Green to the University of
Alabama at Birmingham Hospital ("UAB Hospital"), where she was
diagnosed with an infection related to her back surgery.
Hodge underwent additional back surgery at UAB Hospital and
eventually returned to the Jefferson County jail on September
1, 2004. Jenkins alleges that Hodge made a written request
for medical care on November 28, 2004, because her lower
abdomen was swollen and she was not having bowel movements.1
Hodge was admitted to Cooper Green on December 13, 2004; she
died the next day. Jenkins alleges that when Hodge arrived at
Cooper Green in December 2004, Hodge "had been constipated for
three weeks, had not voided in three days and had suffered
from fever and chills for four to five days." Jenkins's brief
1070252
42 U.S.C. § 1983 provides:
2
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in
any action brought against a judicial officer for an
act or omission taken in such officer's judicial
capacity, injunctive relief shall not be granted
unless
a
declaratory
decree
was
violated
or
declaratory relief was unavailable. For the purposes
of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be
considered to be a statute of the District of
Columbia."
4
at 12. The complaint asserts that an autopsy revealed sepsis
as the cause of Hodge's death.
Jenkins filed this action in her capacity as personal
representative
and
administratrix
of
Hodge's
estate,
asserting
two claims against Sheriff Hale in his individual capacity.
Jenkins's first count against Hale is brought under 42 U.S.C.
§ 1983, in which she alleges that Sheriff Hale violated
2
Hodge's Eighth and Fourteenth Amendment rights by failing to
provide Hodge with adequate medical care. The complaint also
asserts a claim alleging breach of contract, specifically that
1070252
Rule 12(b)(6), Ala. R. Civ. P., provides:
3
"Every defense, in law or fact, to a claim for
relief
in
any
pleading,
whether
a
claim,
counterclaim, cross-claim, or third-party claim,
shall be asserted in the responsive pleading thereto
if one is required, except that the following
defenses may at the option of the pleader be made by
motion: ... 6) failure to state a claim upon which
relief can be granted ...."
5
Sheriff Hale's failure to provide adequate medical care to
Hodge violated the terms of Sheriff Hale's official bond with
Western Surety Company. On this count, Jenkins alleges that
she is "entitled to recover from ... Western Surety Company
for the said breach," but also "demands judgment against the
defendants,
jointly
and severally, for incidental and
consequential damages in an amount to be determined by a
struck jury ...." Jenkins's brief at Exhibit 2.
Sheriff Hale moved the trial court to dismiss Jenkins's
claims against him, pursuant to Rule 12(b)(6), Ala. R. Civ.
P., arguing that he was entitled to qualified immunity from
3
Jenkins’s § 1983 claim. The trial court, however, found that
Jenkins's complaint was sufficiently pleaded to establish a §
1983 claim and that Sheriff Hale was not entitled to a
dismissal. Sheriff Hale now petitions this Court for the writ
1070252
6
of mandamus directing the trial court to dismiss both of
Jenkins's claims against him.
Issues
Sheriff Hale argues that he is entitled to the writ of
mandamus on two grounds. First, he argues that he is entitled
to immunity under Art. I, § 14, Ala. Const. 1901, on Jenkins's
breach-of-contract claim. Second, Sheriff Hale argues that he
is entitled to qualified immunity from Jenkins's § 1983 claim.
I. Jenkins's Breach-of-Contract Claim
Sheriff Hale asks this Court to direct the circuit court
to dismiss Jenkins's breach-of-contract claim against him on
the basis of State immunity. Sheriff Hale argues that he is
entitled to immunity under § 14, Ala. Const. 1901, because, he
says, Jenkins seeks in her breach-of-contract claim to recover
money damages for those acts Sheriff Hale performed while he
was working within the line and scope of his employment as a
sheriff for the State of Alabama.
A. Standard of Review
"The writ of mandamus is an extraordinary legal
remedy. Ex parte Mobile Fixture & Equip. Co., 630
So. 2d 358, 360 (Ala. 1993). Therefore, this Court
will not grant mandamus relief unless the petitioner
shows: (1) a clear legal right to the order sought;
(2) an imperative duty upon the trial court to
1070252
7
perform, accompanied by its refusal to do so; (3)
the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of the Court. See Ex
parte Wood, 852 So. 2d 705, 708 (Ala. 2002)."
Ex parte Davis, 930 So. 2d at 499. "'[I]f an action is an
action against the State within the meaning of § 14, such a
case "presents a question of subject-matter jurisdiction,
which cannot be waived or conferred by consent."'" Ex parte
Davis, 930 So. 2d at 499 (quoting Haley v. Barbour County, 885
So. 2d 783, 788 (Ala. 2004), quoting in turn Patterson v.
Gladwin Corp., 835 So. 2d 137, 142-43 (Ala. 2002)).
"'Therefore, a court's failure to dismiss a case for lack of
subject-matter jurisdiction based on sovereign immunity may
properly be addressed by a petition for the writ of
mandamus.'" Ex parte Davis, 930 So. 2d at 499-500 (quoting Ex
parte Alabama Dep't of Mental Health & Retardation, 837 So. 2d
808, 810-11 (Ala. 2002)). Moreover, this Court may address
this argument even if it was not presented to the trial court.
See Atkinson v. State, [Ms. 1061553, Dec. 7, 2007] ___ So. 2d
___, ___ (Ala. 2007) ("The assertion of State immunity
challenges the subject-matter jurisdiction of the court;
therefore, it may be raised at any time by the parties or by
a court ex mero motu.").
1070252
8
B. Analysis
Sheriff Hale argues that Art. 1, § 14, Ala. Const. 1901,
affords him immunity "in his individual capacity for actions
taken in the line and scope of his employment as Sheriff."
Sheriff Hale's petition at 7. He asserts that Jenkins's
breach-of-contract
claim
"seeks
compensation
for
[the]
alleged
actions taken [by Sheriff Hale] during the course and scope of
Sheriff Hale's employment as Sheriff of Jefferson County" and,
thus, that Sheriff Hale's State immunity bars Jenkins's breach
of contract claim. Sheriff Hale's petition at 8. Jenkins
argues that she does not seek damages from Sheriff Hale but
seeks only "to recover on her breach of contract claim through
Sheriff Hale's official bond with Western Surety Company."
Jenkins's brief at 28.
"Article I, § 14, Const. of Ala. 1901, states that 'the
State of Alabama shall never be made a defendant in any court
of law or equity.' 'The wall of immunity erected by § 14 is
nearly impregnable.'" Ex parte Davis, 930 So. 2d at 500
(quoting Patterson, 835 So. 2d at 142). This Court has
concluded that § 14, Ala. Const. 1901, prohibits suits against
a sheriff in his official capacity for conduct that occurred
1070252
9
in the line and scope of the sheriff's employment. See Parker
v. Amerson, 519 So. 2d 442, 442-43 (Ala. 1987) ("A sheriff is
an executive officer of the State of Alabama, who is immune
from suit under Article I, § 14, Alabama Constitution of 1901,
in the execution of the duties of his office ...."); Employees
of the Montgomery County Sheriff's Dep't v. Marshall, 893 So.
2d 326, 331 (Ala. 2004) ("State immunity immunizes the sheriff
in his official capacity from liability for money damages.").
On the other hand, as this Court noted in Ex parte Davis:
"'Section 14 does not necessarily immunize State
officers
and
agents
from
individual
civil
liability.' Gill v. Sewell, 356 So. 2d 1196, 1198
(Ala. 1978). Whether immunity serves as a defense
to an action against a state officer or employee
sued in his individual capacity depends upon the
degree to which the action involves a State
interest. ...
"When determining whether a State interest in an
action against a state official or employee in his
or her individual capacity is sufficient to trigger
the immunity granted by § 14, our cases distinguish
between the standards applied to those state agents
or employees whose positions exist by virtue of
legislative pronouncement and those who serve as the
constitutional officers of this State. We have held
that State-agent immunity may bar an action against
a state agent or employee under the principles
announced in Ex parte Cranman, 792 So. 2d 392 (Ala.
2000). See Ex parte Butts, 775 So. 2d 173 (Ala.
2000)
(adopting,
by
majority,
the
Cranman
restatement
of
the rule governing State-agent
immunity). However, this Court has consistently
1070252
10
held that a claim for monetary damages made against
a constitutional officer in the officer's individual
capacity is barred by State immunity whenever the
acts that are the basis of the alleged liability
were performed within the course and scope of the
officer's employment."
930 So. 2d at 500-01 (emphasis added).
In this instance, Jenkins has asserted a breach-of-
contract claim against Sheriff Hale in his individual
capacity; accordingly, Sheriff Hale is not automatically
entitled to immunity. See Ex parte Davis, supra. To determine
whether Sheriff Hale is entitled to immunity we must determine
whether Jenkins's breach-of-contract claim is, in effect, a
claim against the State. Jenkins does not contest that the
actions giving rise to her breach-of-contract claim were
actions taken by Hale in the execution of his duties as
sheriff. Jenkins argues, however, that she seeks to recover
on her breach-of-contract claim only on Sheriff Hale's
official bond from Western Surety Company and, thus, that her
claim is not a claim against the State. Jenkins's brief at
Exhibit B. We disagree. Although Jenkins alleges that she
"is entitled to recover from the defendant Western Surety
Company for the said breach," she also "demands judgment
against the defendants, jointly and severally, for incidental
1070252
Our holding leaves Western Surety Company as a defendant
4
in Jenkins's breach-of-contract claim. Dixon v. American
Liberty Insurance Co., 332 So. 2d 719, 721 (Ala. 1976),
allowed an action brought by a widow, individually and as next
friend of her minor son, and as administratrix of the estate
of her deceased husband, to proceed against a surety on the
bond of a sheriff on the ground that the decedent died as a
result of the failure of the sheriff to provide him with
adequate medical treatment while he was in jail. Neither
party in the case before us asks this Court to address whether
such an action is permissible or to revisit the holding in
Dixon.
11
and consequential damages in an amount to be determined by a
struck jury ...." Jenkins's brief, Exhibit B. Jenkins's
second amended complaint clearly seeks a monetary award from
Sheriff Hale in his individual capacity; thus, under our
holding in Ex parte Davis, Sheriff Hale is entitled to State
immunity on Jenkins's breach-of-contract claim.4
II. Jenkins's § 1983 Claim
Jenkins alleges that Sheriff Hale, as the supervisor of
the jail, is liable for the alleged violations of Hodge's
constitutional rights. "'Supervisory liability [under § 1983]
occurs either when the supervisor personally participates in
the alleged constitutional violation or when there is a causal
connection between actions of the supervising official and the
alleged constitutional deprivation.'" Hartley v. Parnell, 193
F.3d 1263, 1269 (11th Cir. 1999). Sheriff Hale argues that he
1070252
Sheriff Hale also asserts that Jenkins's § 1983 claim
5
against him should be dismissed because, he argues, Jenkins's
claim fails to meet the "heightened pleading standard" applied
by "the federal courts" to § 1983 claims against government
officials. In support of this position, he relies exclusively
on caselaw from the United States Court of Appeals for the
Eleventh Circuit and states that this Court is required to
abide by those decisions. However, "the correct rule, briefly
stated, is that '[t]his Court may rely on a decision of any
federal court, but it is bound by the decisions of the United
States Supreme Court.'" Weems v. Jefferson-Pilot Life Ins.
Co., 663 So. 2d 905, 913 (Ala. 1995) (quoting Ex parte
Gurganus, 603 So. 2d 903, 908 (Ala. 1992) (Shores, J.,
concurring specially)(emphasis omitted; emphasis added)).
Because we are not bound by the decisions of the Eleventh
Circuit and because Sheriff Hale has not asked us to adopt the
"heightened pleading standard" applied by the Eleventh
Circuit, we do not address whether this standard is applicable
under Alabama law, nor do we apply such a heightened pleading
standard in this case.
Jenkins argues that Sheriff Hale violated Hodge’s Eighth
6
and Fourteenth Amendment rights. However, the parties agree
that because Hodge was a pretrial detainee, the Eighth
Amendment is inapplicable. See Jenkins’s brief at 29 ("Jenkins
conceded in the trial court that since [Hodge] was a pre-trial
detainee at the time of her death, her § 1983 claims against
[Sheriff] Hale should only be brought under ... the Fourteenth
Amendment.").
[substituted p. 12]
is entitled to qualified immunity from liability on Jenkins's
§ 1983 claim because, he says, Jenkins's complaint is
insufficiently pleaded. Jenkins argues, however, that the
5
pleadings are sufficient to defeat Sheriff Hale's claim of
immunity.6
A. Standard of Review
"A petition for a writ of mandamus 'is an appropriate
means for seeking review of an order denying a claim of
1070252
13
immunity.'" Ex parte Haralson, 853 So. 2d 928, 931 (Ala. 2003)
(quoting Ex parte Butts, 775 So. 2d 173, 176 (Ala. 2000)).
"'While the defense of qualified immunity
is typically addressed at the summary
judgment stage of a case, it may be, as it
was in this case, raised and considered on
a motion to dismiss. See Chesser v. Sparks,
248 F.3d 1117, 1121 (11th Cir. 2001). The
motion to dismiss will be granted if the
"complaint fails to allege the violation of
a
clearly
established
constitutional
right." Id. (citing Williams v. Ala. State
Univ., 102 F.3d 1179, 1182 (11th Cir.
1997)). Whether the complaint alleges such
a violation is a question of law that we
review de novo, accepting the facts alleged
in the complaint as true and drawing all
reasonable inferences in the plaintiff's
favor. Id.'"
Ex parte Alabama Dep't of Youth Servs., 880 So. 2d 393, 402-03
(Ala. 2003) (emphasis omitted) (quoting St. George v. Pinellas
County, 285 F.3d 1334, 1337 (11th Cir. 2002)).
B. Analysis
Under our standard of review, the primary issue this
Court must address with regard to Sheriff Hale's qualified-
immunity defense is whether Jenkins's "complaint fails to
allege the violation of a clearly established constitutional
right." Ex parte Alabama Dep't of Youth Servs., supra.
Inherent in this analysis are two questions: (1) whether "the
1070252
14
applicable law was clearly established at the time of the
challenged action," Adams v. Franklin, 111 F. Supp. 2d 1255,
1263-64 (M.D. Ala. 2000), and (2) whether the complaint
alleges the violation of that right. It does not appear that
Sheriff Hale disputes that "the applicable [Fourteenth
Amendment right] was clearly established at the time of the
challenged action." See Adams, supra. Therefore, whether
Sheriff Hale is entitled to qualified immunity from Jenkins's
§ 1983 claim turns on whether the "complaint ... allege[s]
the violation of [that] clearly established constitutional
right." See Ex parte Alabama Dep't of Youth Servs., 880 So. 2d
at 402-03.
i. Sheriff Hale's personal participation
Jenkins argues that her second amended complaint alleges
that Hodge's medical condition while she was at the Jefferson
County jail was serious, that Sheriff Hale was aware of
Hodge's condition, and that Sheriff Hale failed or refused to
obtain medical treatment for Hodge. The complaint further
states that "[o]n or about November 28, 2004, [Hodge] made a
written request for immediate medical care because her lower
abdomen was extremely swollen and because her bowels were not
1070252
15
moving." Jenkins’s brief at 12-13. She also alleges that at
the time Hodge was taken to the emergency room, Hodge "had
been constipated for three weeks, had not voided in three days
and had suffered from fever and chills for four to five days."
Jenkins's brief at 12. The complaint further alleges that
"[Sheriff Hale] ... [was] aware of Hodge’s condition but
intentionally, knowingly, and/recklessly denied Hodge medical
treatment for the condition" and that "[Sheriff] Hale ...
[was] aware that Hodge had a serious and/or life threatening
medical condition but failed to provide Hodge with medical
treatment for her said condition." Jenkins’s brief at 13.
Finally, Jenkins alleges that "the failure of the above named
defendants [including Sheriff Hale] to provide Hodge with
medical care proximately caused Hodge's death." Jenkins's
brief, Exhibit B.
"The case law [has] made it clear that an official acts
with deliberate indifference when he knows that an inmate is
in serious need of medical care, but he fails or refuses to
obtain medical treatment for the inmate." Lancaster v. Monroe
County, 116 F.3d 1419, 1425 (11th Cir. 1997). As noted above,
in determining whether Jenkins has "allege[d] the violation of
1070252
16
[this] clearly established constitutional right" we look to
the complaint, "accepting the facts alleged in the complaint
as true and drawing all reasonable inferences in the
plaintiff's favor." See Ex parte Alabama Dep't of Youth
Servs., 880 So. 2d at 403 (emphasis omitted).
The matter before us is Sheriff Hale's clear legal right
under Rule 12(b)(6), Ala. R. Civ. P., to have the § 1983 claim
against him dismissed for failure to state a claim on which
relief can be granted; therefore, we do not address the merits
of the claim. On a motion to dismiss a § 1983 claim because
of qualified immunity, this Court looks to the complaint to
determine only whether the "'"complaint ... allege[s] the
violation of a clearly established constitutional right."'"
Alabama Dep't of Youth Servs., 880 So. 2d at 402 (quoting St.
George, 285 F.3d at 1337, quoting in turn Chesser v. Sparks,
248 F.3d 1117, 1121 (11th Cir. 2001)). "[A] jail official
violates a pre-trial detainee's Fourteenth Amendment right to
due process if he acts with deliberate indifference to the
serious medical needs of the detainee," Lancaster, 116 F.3d at
1425 (footnote omitted). Jenkins has alleged in her complaint
that Hodge had a serious medical need, that Sheriff Hale was
1070252
17
aware of that need, and that he acted with deliberate
indifference to that need. Therefore, we cannot conclude at
this stage of the proceedings that Sheriff Hale is entitled to
a dismissal of that portion of Jenkins § 1983 claim in which
she alleges that Sheriff Hale personally deprived Hodge of her
Fourteenth Amendment rights because her complaint alleges the
violation of a clearly established constitutional right.
ii. Sheriff Hale's supervisory liability
"'Supervisory officials are not liable under section 1983
on the basis of respondeat superior or vicarious liability.'
They may, however, be liable under section 1983 'when there is
a causal connection between actions of the supervising
official
and
the
alleged
constitutional
deprivation.'"
Belcher
v. City of Foley, 30 F.3d 1390, 1396-97 (11th Cir. 1994)
(citations omitted). As the United States Court of Appeals
for the Eleventh Circuit stated in Hartley v. Parnell, 193
F.3d at 1269:
"'The causal connection can be established when a
history of widespread abuse puts the responsible
supervisor on notice of the need to correct the
alleged deprivation, and he fails to do so. The
deprivations
that
constitute
widespread
abuse
sufficient to notify the supervising official must
be obvious, flagrant, rampant and of continued
duration, rather than isolated occurrences.'"
1070252
18
(Quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir.
1990).) The Eleventh Circuit Court of Appeals also noted that
"the causal connection may be established and supervisory
liability imposed where the supervisor's improper 'custom or
policy
...
result[s]
in
deliberate
indifference
to
constitutional rights.'" Hartley, 193 F.3d at 1269 (quoting
Rivas v. Freeman, 940 F.2d 1491, 1495 (11th Cir.1991)).
a. Widespread abuse
With respect to a history of widespread abuse, Jenkins
alleges in her complaint that Sheriff Hale, as the supervisor
of the jail, is liable for the alleged violations of Hodge's
constitutional rights because, she argues, "[Sheriff] Hale ...
[was] on notice that a widespread problem existed wherein
inmates of the County Jail were not receiving medical
treatment for serious medical needs." Jenkins's brief, Exhibit
B.
Jenkins
further
alleges
that
the
constitutional
deprivations were "obvious, flagrant, rampant and/or of
continu[ed] duration." In her complaint, Jenkins supports the
allegations with references to statements made by Sheriff Hale
in his March 2007 complaint for a declaratory judgment in the
Jefferson Circuit Court in Hale v. Jefferson County et al.,
1070252
19
(CV-2007-01040) ("the DJA"). These references in her
complaint allege that, in the complaint in the DJA, Sheriff
Hale admitted to a "troubling pattern" with respect to inmate
health care at the county jail. Jenkins's complaint then
identifies, from the DJA complaint, eight "lawsuits or notices
of claims [that have been] filed ...[that] demonstrate that
[Sheriff] Hale is fully aware this troubling pattern exists."
She alleges in her complaint that "[s]ome of these instances
and others ... placed [Sheriff Hale] ... on notice of
widespread problems of inadequate medical care in the County
Jail and his need to correct the inmates' constitutional
deprivations" and that "[Sheriff Hale] ... failed to correct
the widespread problems and constitutional deprivations."
Jenkins's brief, Exhibit B (emphasis omitted). Jenkins
concludes that "[Sheriff Hale's] ... conduct proximately
caused Hodge's death."
Sheriff Hale argues that "by interjecting the DJA into
these proceedings, [Jenkins] has plead[ed] herself out of the
litigation." Sheriff Hale's petition at 20. Sheriff Hale
argues that the DJA demonstrates that the problem of inmate
medical care was not widespread, given the fact that the
1070252
See Phillips v. Thomas, 555 So. 2d 81, 86 (Ala. 1989)
7
("This Court has held that qualified immunity from suit for
negligence arising out of a discretionary act is an
affirmative defense which must be raised and proved by the
defendant. See Bell v. Chisom, 421 So. 2d 1239 (Ala. 1982);
and Hickman[v. Dothan City Bd. of Educ.], 421 So. 2d 1257
(Ala. 1982). As such, a plaintiff's complaint against a state
official or employee, seeking damages for personal injury
arising out of the negligent performance of the defendant's
official duties, does state a valid cause of action, and, as
such, will survive the defendant's motions to dismiss and for
judgment on the pleadings, even if the defendant raises the
affirmative defense of qualified immunity. The summary
judgment stage, then, becomes the step at which the court must
determine whether the case should proceed forward, and at
which the defendant must meet his burden of showing that the
20
complaint in the DJA references only nine incidents over a
three-year period, one of which is the incident involving
Hodge. Furthermore, Sheriff Hale argues that not all of these
incidents occurred before December 2004 and, thus, would not
serve as notice of the alleged widespread violations.
Finally, Sheriff Hale asserts that the existence of the DJA
proves that he was, in fact, attempting to improve inmate
health care.
This matter is before us because the trial court declined
to dismiss the § 1983 claim against Sheriff Hale, not because
of the denial of a summary-judgment motion; therefore, we do
not address whether Jenkins's reference to the DJA would
constitute substantial evidence of her claim. We agree with
7
1070252
alleged
negligence
arose
out
of
a
discretionary
or
nonministerial act, in order to avail himself of qualified
immunity from suit.").
21
Jenkins that she has sufficiently pleaded this issue to avoid
a Rule 12(b)(6) dismissal. See Lloyd Noland Found., Inc. v.
HealthSouth Corp., [Ms. 1041121, Aug. 24, 2007] ___ So. 2d
___, ___ (Ala. 2007) ("'In making this determination, [whether
the pleader could prove any set of circumstances that would
entitle her to relief under 12(b)(6), Ala. R. Civ. P.,] this
Court does not consider whether the plaintiff will ultimately
prevail, but only whether she may possibly prevail.'" (quoting
Nance v. Matthews, 622 So. 2d 297, 299 (Ala. 1993))).
Jenkins's complaint alleges the existence of widespread
constitutional violations, alleges that those violations were
"obvious, flagrant, rampant and of continued duration, rather
than isolated occurrences," and alleges that Sheriff Hale was
aware of those violations and failed to take corrective
action. Hartley, 193 F.3d at 1269. Therefore, Jenkins's
"complaint
...
allege[s]
the
violation
of
a
clearly
established constitutional right," Alabama Dep't of Youth
Servs., 880 So. 2d at 402. Thus, in light of Jenkins's
allegation of widespread abuse with respect to medical care
1070252
Sheriff Hale cites McDowell v. Brown, 392 F.3d 1283, 1289
8
(11th Cir. 2004), and Fundiller v. City of Cooper City, 777
F.2d 1436, 1442 (11th Cir. 1985). Both involve § 1983 claims
against municipalities, and both essentially state the same
requirement that we recite above from Hartley -- that the
"causal
connection
may
be established and supervisory
liability imposed where the supervisor's improper 'custom or
policy
...
result[s]
in
deliberate
indifference
to
constitutional rights.'" See McDowell, 392 F.3d at 1289 ("[T]o
impose § 1983 liability on a municipality, a plaintiff must
show: (1) that his constitutional rights were violated; (2)
that the municipality had a custom or policy that constituted
deliberate indifference to that constitutional right; and (3)
that the policy or custom caused the violation."); Fundiller,
22
for inmates, Sheriff Hale has not demonstrated that he is
entitled to a dismissal based on qualified immunity or that he
has a clear legal right to mandamus relief on this issue.
b. Custom or policy
Jenkins also alleges that Sheriff Hale had in place at
the jail the following four specific policies and/or customs
that, she alleges, proximately resulted in Hodge's death:
"(a) policy and/or custom of failing to adequately
staff the jail with medical personnel; (b) policy
and/or custom of failing to train deputies and/or
jail personnel on how to respond to an inmate's
request for medical attention; (c) policy and/or
custom in place of failing to administer the correct
dosage of medications and/or antibiotics to inmates
of the County Jail; (d) policy and/or custom of
failing to monitor and/or properly treat inmates of
the County Jail who have known serious medical
problems."
Jenkins's brief, Exhibit B. Sheriff Hale argues:
8
1070252
777 F.2d at 1442 ("[L]iability [of a municipality] may be
predicated upon a showing that a government employee's
unconstitutional action 'implements or executes a policy
statement, ordinance, regulation, or decision officially
adopted and promulgated by that body's officers,' or is
'visited pursuant to governmental "custom" ....' Regardless
whether the basis of the claim is an officially promulgated
policy or an unofficially adopted custom, it must be the
'moving force behind the constitutional deprivation before
liability may attach.'").
23
"As set out in the DJA, Jefferson Metropolitan
Health Care Authority and/or Jefferson County d/b/a
Cooper Green Hospital and/or Jefferson Health System
controlled the provision of inmate healthcare at the
Jails.
Therefore,
these
entities
that
were
responsible for providing inmate healthcare enacted
the customs or policies relating thereto.
"....
"Because the aforementioned entities undertook
and controlled the provision of inmate healthcare,
Sheriff Hale did not establish or promulgate
policies or customs regarding the provision of
inmate healthcare at the Jails."
Sheriff Hale's petition at 24. In support of this argument,
Sheriff Hale cites Williams v. Limestone County, 198 Fed.
Appx. 893 (11th Cir. 2006), an unpublished decision of the
United States Court of Appeals for the Eleventh Circuit, in
which that court noted that "supervisory officials are
entitled to rely on medical judgments made by medical
professionals responsible for prisoner care." 198 Fed. Appx.
1070252
24
at 897. However, even if this Court were to find Williams
persuasive, at least one of the policies alleged by Jenkins to
have enabled Jefferson County jail officials to allegedly
deprive Hodge of her constitutional rights, that is, the
"policy and/or custom of failing to train deputies and/or jail
personnel on how to respond to an inmate's request for medical
attention," is not related to "medical judgments made by
medical
professionals
responsible
for
prisoner
care."
Williams, supra.
Sheriff
Hale
also
cites
Fretwell
v.
Deese,
No.
2:04cv878-WHA (M.D. Ala. July 25, 2006)(not reported in
F.Supp.2d), an unpublished order adopting the findings of the
magistrate judge, in which the district court recognized that
"[t]he law does not impose upon correctional officials a duty
to directly supervise health care personnel, to set treatment
policy for the medical staff, or to intervene in treatment
decisions
where
they
have
no
actual
knowledge
that
intervention is necessary to prevent a constitutional wrong."
Again, however, at least one of the policies Jenkins alleges
contributed
to
the
alleged
deprivation
of
Hodge's
constitutional rights was unrelated to medical treatment,
1070252
25
medical care, or medical judgment. Therefore, neither
Williams nor Fretwell demonstrates that Sheriff Hale is
entitled to a dismissal of Jenkins's § 1983 claim under Rule
12(b)(6).
Under Hartley, Jenkins was required to plead that Sheriff
Hale's "improper 'custom or policy ... resulted in deliberate
indifference to constitutional rights,'" Hartley, 193 F.3d at
1269. In her complaint, Jenkins alleges that "[Sheriff Hale]
... had policies and/or customs in place that caused medical
treatment to be denied to inmates of the County Jail" and that
"the failure of [Sheriff Hale] ... to correct these policies
and/or customs ... enabled Sheriff's Deputies, jail personnel
and/or medical personnel to deprive Hodge ... of [her]
constitutional right." Jenkins's brief, Exhibit B. Jenkins's
"complaint
...
allege[s]
the
violation
of
a
clearly
established constitutional right," Alabama Dep't of Youth
Servs., 880 So. 2d at 402. Therefore, at this stage of the
proceedings, Sheriff Hale is not entitled to a dismissal of
Jenkins's § 1983 claim against him based on qualified immunity
and, thus, is not entitled to mandamus relief on this issue.
Conclusion
1070252
26
We conclude that Sheriff Hale is entitled to State
immunity under § 14, Ala. Const. 1901, on Jenkins's breach-
of-contract claim. Therefore, we grant his petition as to
that claim and direct the trial court to dismiss Jenkins's
breach-of-contract claim against Sheriff Hale. However, we
conclude that Jenkins's complaint sufficiently alleges a
violation of Hodge's constitutional rights and that at this
stage in the proceedings Sheriff Hale is not entitled to a
dismissal of Jenkins's § 1983 claim based upon Sheriff Hale's
qualified immunity. Therefore, we deny Sheriff Hale's
petition on that ground.
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | October 10, 2008 |
4142c252-efc1-49be-be14-776cd4519305 | The City of Birmingham, a municipal corporation v. Eric L. Major | N/A | 1070944 | Alabama | Alabama Supreme Court | REL: 11/21/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1070944
_________________________
The City of Birmingham, a municipal corporation
v.
Eric L. Major
Appeal from Jefferson Circuit Court
(CV-06-2523)
SEE, Justice.
The City of Birmingham ("the City") appeals from the
Jefferson Circuit Court's denial of the City's postjudgment
motion for a judgment as a matter of law in the underlying
civil-rights action against it. The trial court refused to
set aside the judgment it entered on a jury verdict awarding
1070944
In their briefs, both the City and Major spell Sgt.
1
Erwin's last name as "Irwin." We are using the spelling
contained in the record.
2
Eric L. Major $500,000 in compensatory damages on Major's
civil-rights action against the City brought pursuant to 42
U.S.C. § 1983. We reverse the trial court's judgment and
render a judgment in favor of the City.
Facts and Procedural History
On the night of April 29, 2004, Officer Al Anger of the
Birmingham Police Department was on patrol in the City's South
Precinct. Sometime around 11:30 p.m., Officer Anger saw a
woman get out of an automobile on the other side of the
street; she ran toward him. The woman approached Officer
Anger and identified herself as Shamanda Joseph. Joseph told
Officer Anger that the car she had just gotten out of was
being driven by Eric L. Major and that she had just been
assaulted by Major.
Officer Anger reported the incident over the police
radio, and several other police officers, including Sergeant
Paul Erwin, arrived to assist with the investigation.
1
Officer Anger questioned Joseph about
the
incident, and Joseph
told Officer Anger that she and Major were returning from a
1070944
3
concert they had attended with a group of friends. Joseph
also told Officer Anger that she and Major had been engaged
but that Major had ended their engagement in January 2004.
Joseph alleged that after they left the concert, Major pulled
into a parking lot at the Embassy Suites Hotel, where he
assaulted her and attempted to rape her. Joseph told Officer
Anger that the physical altercation had lasted approximately
one hour, that Major had struck her on the left side of the
face, and that she had used Mace to defend herself against
Major. Joseph also indicated to Officer Anger that she did
not wish to have Major arrested and prosecuted.
Officer Anger also spoke with Major, who confirmed that
he and Joseph had attended a concert earlier that evening and
that he and Joseph had previously been engaged. Major told
Officer Anger that after the concert Joseph had asked Major if
she could ride with him to meet a group of friends at a local
café. Major stated that on the way to the café Joseph began
questioning him about their relationship and wanted to know
why Major had ended their engagement. Major stated that he
told Joseph he did not want to talk about their relationship
and that Joseph became confrontational and began to attack him
1070944
Section 15-10-3(a), Ala. Code 1975, provides:
2
"An officer may arrest a person without a
warrant, on any day at any time in any of the
following instances:
4
verbally. Major told Officer Anger that he then decided to
drive Joseph back to her car, but that Joseph maced him before
they reached her car. Major stated that his eyes began to
burn and that he pulled his car over to the side of the road.
At that point, Joseph got out of the car.
During
the
on-scene
investigation,
Officer
Anger
reported
that Joseph appeared to have a small red blotch beside the
left side of her nose and a little puffiness and discoloration
around her left eye. Officer Anger noted that Joseph's and
Major's clothing appeared disheveled. Officer Anger also
observed a dark stain on the left knee area of Joseph's pants.
Officer Anger observed similar dark-colored stains on the
dashboard and the passenger's side of the center console of
Major's car. Sgt. Erwin also noticed that Joseph had marks on
her neck and on her wrists.
Following the investigation by Officer Anger, Sgt. Erwin,
and the other officers, Officer Anger arrested Major at the
scene on one charge of assault. Major was first taken to a
2
1070944
"....
"(8) When an offense involves domestic
violence as defined by this section, and
the arrest is based on probable cause,
regardless of whether the offense is a
felony or misdemeanor."
The date of the second amendment was December 7, 2004,
3
approximately seven months after the alleged incident.
Section 13A-6-132(a) provides, in relevant part:
4
"A person commits domestic violence in the third
degree if the person commits the crime of assault in
the third degree pursuant to Section 13A-6-22 ...
5
nearby hospital for a physical examination and was later
transported to the Birmingham city jail.
Officer Anger presented the case to a magistrate judge
for a probable-cause determination. The affidavit submitted
by Officer Anger stated that Major had struck "the affiant."
Based upon Officer Anger's affidavit, the magistrate judge
found that there was probable cause to arrest and charge Major
for assaulting Officer Anger. However, the charge was later
amended to specify that Major was being charged for the
alleged assault of Joseph. The charge was subsequently
amended a second time to charge Major specifically with
3
third-degree domestic violence pursuant to § 13A-6-132, Ala.
Code 1975.4
1070944
and the victim is a current or former spouse,
parent, child, any person with whom the defendant
has a child in common, a present or former household
member, or a person who has or had a dating or
engagement relationship with the defendant."
Section 13A-6-22, Ala. Code 1975, provides, in relevant part:
"(a) A person commits the crime of assault in
the third degree if:
"(1) With intent to cause physical
injury to another person, he causes
physical injury to any person; or
"(2) He recklessly causes physical
injury to another person ...."
6
Major was tried in the Birmingham municipal court, and he
was found guilty of third-degree domestic violence against
Joseph. Major appealed that judgment to the Jefferson Circuit
Court, where the case was tried before a jury. The jury found
Major not guilty of third-degree domestic violence, and the
circuit court entered a judgment on the jury's verdict.
On April 27, 2006, Major filed a nine-count complaint
against the City, Officer Anger, in his individual and
professional capacity, and Joseph. Specifically, Major
alleged a 42 U.S.C. § 1983 civil-rights violation and
negligence against Officer Anger and the City. Major also
alleged
malicious
prosecution,
"false
arrest/false
1070944
7
imprisonment,"
assault
and
battery,
"verbal
abuse/harassment,"
defamation, and intentional infliction of emotional distress
against all defendants, and he also asserted a conspiracy-to-
violate-civil-rights claim against Officer Anger and Joseph.
The City moved to dismiss the claims against it or, in the
alternative, for a summary judgment. The trial court held a
hearing on the City's motion, and at the hearing the City
moved the trial court for a more definite statement regarding
Major's § 1983 civil-rights claim. The trial court dismissed
with prejudice the claims in which the City was named as a
defendant,
except
for
the
§
1983
and
"verbal
abuse/harassment"
claims. The trial court also ordered Major to amend his
complaint and to
include
a more definitive
statement regarding
his § 1983 claim.
Major filed a second amended complaint realleging the
same material claims from his original complaint and included
a more definite statement regarding his § 1983 claim, alleging
that the City and Officer Anger had violated Major's Fourth
Amendment right "not to be arrested or seized without probable
1070944
Major
had
previously
amended
his
complaint
to
add
several
5
factual details that had not been included in the original
complaint.
Sgt. Major is Eric Major's brother.
6
At the start of the trial, the defense moved the trial
7
court to dismiss Joseph as a defendant. The trial court
granted that motion.
8
cause." Officer Anger answered Major's second amended
5
complaint and denied every material allegation contained in
it.
The case went to trial, and Major presented the testimony
of Sergeant Wendell Major and of Officer Anger. Sgt. Major
6
7
testified that he had had previous law-enforcement experience
as a detective, a sheriff's deputy with the Jefferson County
Sheriff's Office, and a patrol officer and that he had
responded to numerous domestic-violence calls. Sgt. Major
testified that when responding to a domestic-violence call, a
law-enforcement officer has an affirmative duty to determine
which party is the primary aggressor and that if an officer is
unable to make this determination then there is no probable
cause for an arrest. Sgt. Major further testified that, based
upon his experience, he did not believe that Officer Anger
conducted
a
thorough
investigation
by
adequately
investigating
1070944
9
and recording Major's version of events. Sgt. Major also
testified that, in his opinion, Officer Anger did not have
probable cause to arrest Major for the assault of Joseph and
that Officer Anger had been inadequately trained in how to
determine whether probable cause for an arrest exists.
Officer Anger testified that be believed there was
probable cause to arrest Major for assaulting Joseph. Officer
Anger testified that the redness on the left side of Joseph's
face and the puffiness and discoloration around her left eye
appeared to corroborate her allegation that Major had struck
her on the left side of her face. Officer Anger also
testified that there was evidence to corroborate Joseph's
claim of a physical altercation because, he said, the dark red
stains he observed on Joseph's clothing and in Major's car
appeared to be bloodstains. Officer Anger testified that
under Alabama law he is authorized to make a warrantless
arrest in a domestic-violence case only when there is probable
cause that the primary aggressor abused the alleged victim.
Officer Anger admitted that he did not question Major
about Joseph's allegation that Major attempted to rape her.
Officer Anger also admitted that he arrested Major based upon
1070944
During direct examination, Officer Anger stated that he
8
did meet with Joseph in late November or early December 2004
when the charge was amended to charge Major with third-degree
domestic violence. Officer Anger testified that he met with
Joseph at the behest of the City prosecutor's office in order
to document some additional information that the prosecutor's
office needed to try the case against Major. Officer Anger
stated that his meeting with Joseph could be construed as a
follow-up investigation. However, he also stated that this
follow-up meeting was unusual in that it was the first
domestic-violence case in which he had come into contact with
the victim after the initial on-site investigation. Officer
Anger
also
testified
that
domestic-violence
cases
are
assigned
to the department's domestic-violence detectives after the
initial on-site investigation has been completed. He
testified that the domestic-violence detectives do not
normally conduct a follow-up investigation because most
domestic-violence cases involve misdemeanor offenses.
10
the
on-scene
investigation
and
that
no
follow-up
investigation
was conducted after Major was arrested. Officer Anger also
8
admitted that he never had an evidence technician perform a
test to determine if the dark red substance on Joseph's
clothing and in Majors's car was, in fact, blood.
After Major presented his case-in-chief, the City and
Officer Anger moved the trial court for a judgment as a matter
of law. The trial judge granted the motion as to the
defamation and conspiracy claims against Officer Anger and
denied the motion as to the remaining claims. The City and
Officer
Anger
then
presented
the
testimony
of
Jeffrey
Gilliam,
1070944
11
a prosecutor with the City of Birmingham Law Department, and
Sgt. Erwin, a patrol supervisor with the South Precinct Task
Force of the Birmingham Police Department.
Gilliam testified that he was the prosecutor who had
prosecuted Major on the charge of third-degree domestic
violence. Gilliam testified that, in his opinion, the police
had collected good evidence during the initial investigation
and that the evidence collected by the police, such as the
photographs of Joseph's face, Joseph's statements to the
police, and the police report, created "a very good domestic
violence case." Gilliam also testified that the first
warrant, which indicated that Officer Anger had been the
victim of the assault, was the result of a clerical error that
sometimes occurs.
Sgt. Erwin testified that he arrived on the scene after
he received Officer Anger's call over the police radio. Sgt.
Erwin testified that he interviewed Major and that Major told
him that the incident was just a "misunderstanding." Sgt.
Erwin testified that he also interviewed Joseph and that she
told him that she and Major had gotten into a fight while they
were in Major's car and that Major attempted to have sexual
1070944
Sgt. Erwin also testified that he told Major at the scene
9
that Alabama's domestic-violence law authorized an officer to
arrest a suspect if the officer determined that there was
probable cause to believe that the suspect had committed a
domestic-violence offense.
12
intercourse with her against her will. Sgt. Erwin testified
that there appeared to be blood on Joseph's pants and in
Major's car and that he observed marks on Joseph's neck,
wrists, and face that were consistent with a physical
altercation. Sgt. Erwin also stated that both Major and
Joseph confirmed that they had previously been engaged. Sgt.
Erwin testified that, based upon all this evidence, he
believed that there was probable cause to arrest Major for
domestic violence.9
After the City and Officer Anger finished presenting
their case, both parties again moved the trial court for a
judgment as a matter of law. The trial court granted the
motion in part as to the City, dismissing the "verbal
abuse/harassment" claim against the City, and denied the
motion as to the § 1983 claim. The trial court also granted
the motion in part as to Officer Anger, dismissing the § 1983,
malicious-prosecution,
negligence,
"false
arrest/false
imprisonment," and assault and battery claims, and denied the
1070944
Rule 50(b), Ala. R. Civ. P., provides, in relevant part:
10
"Whenever a motion for a judgment as a matter of law
made at the close of all the evidence is denied or
for any reason is not granted, the court is deemed
to have submitted the action to the jury subject to
a later determination of the legal questions raised
by the motion."
13
motion in part as to the "verbal abuse/harassment" and
intentional-infliction-of-emotional-distress
claims.
The
case
was sent to the jury. The jury returned a verdict in favor of
Officer
Anger
on
the
"verbal
abuse/harassment"
and
intentional-infliction-of-emotional-distress
claims.
However,
the jury returned a verdict in favor of Major and against the
City on the § 1983 claim, and it awarded Major $500,000 in
compensatory damages.
The trial court entered a judgment on the jury's verdict,
and the City renewed its motion for a judgment as a matter of
law pursuant to Rule 50(b), Ala. R. Civ. P. The City also
10
moved the trial court pursuant to Rule 15(b), Ala. R. Civ. P.,
to amend the pleadings to conform to the evidence presented at
trial on Majors's § 1983 claim. The trial court held a
hearing on those motions but did not rule on them. Pursuant
to Rule 59.1, Ala. R. Civ. P., both of the City's motions were
1070944
14
denied by operation of law on March 7, 2008. The City
appeals.
Standard of Review
"When reviewing a ruling on a motion for a JML
[judgment as a matter of law], this Court uses the
same standard the trial court used initially in
deciding whether to grant or deny the motion for a
JML. Palm Harbor Homes, Inc. v. Crawford, 689 So. 2d
3 (Ala. 1997). Regarding questions of fact, the
ultimate question is whether the nonmovant has
presented sufficient evidence to allow the case to
be submitted to the jury for a factual resolution.
Carter v. Henderson, 598 So. 2d 1350 (Ala. 1992).
The nonmovant must have presented substantial
evidence in order to withstand a motion for a JML.
See § 12-21-12, Ala. Code 1975; West v. Founders
Life Assurance 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,
598 So. 2d at 1353. In reviewing a ruling on a
motion for a JML, 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)."
Waddell & Reed, Inc. v. United Investors Life Ins. Co., 875
So. 2d 1143, 1152 (Ala. 2003).
Analysis
Major asserts a civil-rights claim against the City
1070944
42 U.S.C. § 1983, provides, in relevant part:
11
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State ... subjects, or causes to be subjected, any
citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or
other proper proceeding for redress ...."
15
pursuant to 42 U.S.C. § 1983. In Monell v. Department of
11
Social Services of New York, 436 U.S. 658 (1978), the Supreme
Court of the United States held that a local governmental
entity is not vicariously liable for an injury inflicted by
its employees or agents. "Instead, it is when execution of
the government's policy or custom, whether made by its
lawmakers or by those whose edicts or acts may be fairly said
to represent official policy, inflicts the injury that the
government as an entity is responsible under § 1983." Monell,
436 U.S. at 694. In order to hold a governmental entity
liable for an injury inflicted by an employee or agent of the
entity, an individual must demonstrate that he or she suffered
"a constitutional injury at the hands of the individual
[governmental employee or agent.]" City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986). See also Hartline v. Gallo,
1070944
16
[Ms. 06-5309-CV, Oct. 8, 2008] ___ F.3d ___, ___ (2d Cir.
2008) ("To prevail against a municipality on a § 1983 claim,
a
plaintiff
must
demonstrate
both
an
injury
to
a
constitutionally protected right and that the injury 'was
caused by a policy or custom of the municipality or by a
municipal official "responsible for establishing final
policy."'" (quoting Skehan v. Village of Mamaroneck, 465 F.3d
96, 108-09 (2d Cir. 2006))). Therefore, the City is entitled
to a judgment as a matter of law if it can demonstrate that
Major failed to produce substantial evidence either that he
suffered a constitutional injury or that his injury was caused
by police action pursuant to a municipal policy or custom.
We first address the City's argument that the trial court
erred in submitting this case to the jury because, it says,
Major failed to prove that he suffered a constitutional injury
sufficient to sustain his § 1983 claim. Major argues that he
suffered a constitutional injury as a result of Officer
Anger's actions because, Major says, he was arrested without
probable cause in violation of the Fourth Amendment to the
1070944
The Fourth Amendment to the United States Constitution
12
provides, in relevant part:
"The right of the people to be secure in their
persons ... against unreasonable searches and
seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause ...."
17
United States Constitution. Major further contends that the
12
issue whether Officer Anger had probable cause to arrest him
on a domestic-violence charge is a question of fact that the
trial court properly submitted to the jury.
"'A warrantless arrest without probable cause violates
the Constitution and provides a basis for a section 1983
claim.'" Strickland v. City of Dothan, 399 F. Supp. 2d 1275,
1286 (M.D. Ala. 2005) (quoting Kingsland v. City of Miami, 382
F.3d 1220, 1226 (11th Cir. 2004)). "However, an action for
impermissible arrest is barred if probable cause existed at
the time of arrest." Strickland, 399 F. Supp. 2d at 1286
(citing Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003)).
"'In general, the existence of probable cause in a § 1983
action presents a jury question, unless there is only one
reasonable determination possible.'" Fridley v. Horrighs, 291
F.3d 867, 872 (6th Cir. 2002) (quoting Pyles v. Raisor, 60
F.3d 1211, 1215 (6th Cir. 1995)); see also Gray v. Burke, 466
1070944
18
F. Supp. 2d 991, 996 (N.D. Ill. 2006) ("Probable cause
typically presents questions fit for the jury, but when the
facts are undisputed, probable cause may be resolved as a
matter of law.").
Although Joseph and Major gave conflicting accounts as to
what transpired on the night of Major's arrest, the basic
facts with which Officer Anger was confronted are undisputed:
Both Joseph and Major admitted that they had previously been
engaged, that an argument arose as they were driving from the
concert to meet some friends at a local café, that Joseph
sprayed Mace in Major's face, that there was a slight swelling
and
discoloration
around
Joseph's
left
eye,
some
discoloration
on the left side of her face, and marks on Joseph's neck and
wrists, that both Major's and Joseph's clothing was
disheveled, and that there were dark red stains on Joseph's
left pant leg and on the dashboard and the passenger's side of
the center console of Major's car. Thus, we are confronted
with a legal question of the sufficiency of these facts to
establish probable cause.
This Court has stated that "[p]robable cause exists if
facts and circumstances known to the arresting officer are
1070944
19
sufficient to warrant a person of reasonable caution to
believe that the suspect has committed a crime." Dixon v.
State, 588 So. 2d 903, 906 (Ala. 1991) (citing United States
v. Rollins, 699 F.2d 530 (11th Cir. 1983)). "The officer need
not have enough evidence or information to support a
conviction in order to have probable cause for arrest. Only
a probability, not a prima facie showing, of criminal activity
is the standard of probable cause." Dixon, 588 So. 2d at 906
(citing Stone v. State, 501 So. 2d 562 (Ala. Crim. App.
1986)).
Major was arrested for violating § 13A-6-132(a), Ala.
Code 1975, which provides that a person commits the crime of
domestic violence in the third degree "if the person commits
the crime of assault in the third degree pursuant to Section
13A-6-22 ... and the victim is ... a person who has or had a
dating or engagement relationship with the defendant."
Section 13A-6-22, Ala. Code 1975, provides that a person
commits the crime of third-degree assault if "[w]ith intent to
cause physical injury to another person, he causes physical
injury to any person." In light of the undisputed facts, we
hold that there was a sufficient factual basis for Officer
1070944
20
Anger to believe that Major had committed a crime of domestic
violence against Joseph.
The first requirement of § 13A-6-132(a) is that an
individual commit the crime of third-degree assault against
the alleged victim. In this case, several undisputed facts
provided a sufficient basis from which Officer Anger could
conclude that Major had the intent to injure Joseph and that
he did, in fact, physically injure her: the fact that Major
and Joseph had an argument while in Major's car, Joseph's use
of Mace against Major, and the disheveled appearance of their
clothing would provide a sufficient basis for concluding that
there had been some type of heated altercation between Major
and Joseph. The swelling around Joseph's left eye and other
visible marks on her neck and wrists and the dark red, blood-
like stains on Joseph's left leg and in Major's car all
provided a sufficient basis for Officer Anger to conclude that
Major had physically struck or forcibly grabbed Joseph.
The second requirement of § 13A-6-132(a) is that the
victim must have had a dating or engagement relationship to
the alleged assailant. In this case, both Major and Joseph
told Officer Anger that they had previously been engaged.
1070944
21
Therefore, as a matter of law, the undisputed facts provided
Officer Anger with probable cause to arrest Major for
committing the offense of third-degree domestic violence.
Major contends that these circumstances could not have
provided Officer Anger with probable cause to arrest him for
third-degree domestic violence because, Major says, he had
alternative
explanations
for
many
of
these
circumstances.
For
instance, Major pointed out that both he and Joseph were
disheveled in appearance because they were returning from a
music concert. Major also argued that the dark red stains on
Joseph's left leg and in his car could have been a residue
from the Mace Joseph had used on Major. Finally, during his
direct examination, Major,
afer
being
shown
the photographs of
Joseph's face after the alleged assault, commented that the
redness on the left side of her face was caused by facial
blemishes. "'[F]acts ostensibly sufficient to establish
probable cause for an arrest are not negated simply because
such facts also may be consistent with the suspect's
innocence.'" United States v. Gilkeson, 431 F. Supp. 2d 270,
280 (N.D.N.Y. 2006) (quoting United States v. Webb, 623 F.2d
758, 761-62 (2d Cir. 1980)); see also Gagliardi v. Fisher, 513
1070944
22
F. Supp. 2d 457, 479 (W.D.Pa. 2007) (holding that the
defendant's
alternative
explanation
of
the
evidence,
which
was
"equally consistent" with his guilt as with his innocence, did
"not negate the existence of probable cause" for his arrest).
This case is analogous to Signorile v. City of Perth
Amboy, 523 F. Supp. 2d 428 (D.N.J. 2007). In that case,
Signorile was arrested for assaulting his wife after she told
law-enforcement authorities that Signorile had hit her,
causing a visible injury to her right eye. 523 F. Supp. 2d at
430. However, the wife later recanted and told the police
that she had injured herself when she had fallen in her
bathroom. Id. The charges against Signorile were eventually
dropped because the police were unable to collect sufficient
evidence to prove that Signorile had assaulted his wife. 523
F. Supp. 2d at 431. Signorile then filed a § 1983 action
against the City of Perth Amboy and the Perth Amboy Police
Department, alleging, among other things, that the police had
falsely arrested and imprisoned him in violation of his Fourth
Amendment rights. 523 F. Supp. 2d at 432.
The court began its analysis by noting that New Jersey's
domestic-violence statute required police officers to arrest
1070944
23
a suspect if there was probable cause that an act of domestic
violence had occurred and the victim exhibited signs of
physical injury. Signorile, 523 F. Supp. 2d at 433. The court
recognized that "an absolute defense to Signorile's false
arrest and imprisonment claims, under 42 U.S.C. § 1983, is the
existence of probable cause." Id. The court found that there
was no dispute of material fact "that the arresting officers
had probable cause to arrest Signorile" for assaulting his
wife based upon the "exhibition of a physical injury to Mrs.
Signorile's eye" and her initial statement to the police that
her husband had caused that injury. 523 F. Supp. 2d at 434.
Thus, the court concluded that "[b]ecause the officers had
probable
cause
to
arrest
Signorile,
Signorile
cannot
establish
that Defendants deprived him of
any
constitutional
right." Id.
Similarly, we conclude that based upon the undisputed
facts presented at trial, Major was unable to demonstrate that
he was deprived of his constitutional right not to be arrested
except upon a showing of probable cause, because the
undisputed
facts
provided
Officer
Anger
with
probable
cause
to
arrest Major for third-degree domestic violence.
Conclusion
1070944
Because we decide this case on the ground that there was
13
no constitutional injury, we do not address the other issues
raised on this appeal.
24
Because the undisputed facts were sufficient to give
Officer Anger probable cause to arrest Major for third-degree
domestic violence against Joseph, we conclude that Major has
not demonstrated that he suffered a constitutional injury to
sustain his § 1983 claim. Therefore, we hold that the City
was entitled to a judgment as a matter of law. We reverse the
trial court's judgment and render a judgment in favor of the
City.13
REVERSED AND JUDGMENT RENDERED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | November 21, 2008 |
95012b07-2315-40ca-a909-994911125ee3 | Steven Greene et al. v. Jefferson County Commission and The General Retirement System for Employees of Jefferson County | N/A | 1070300 | Alabama | Alabama Supreme Court | REL: 11/14/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1070300
_________________________
Steven Greene et al.
v.
Jefferson County Commission and the General Retirement
System for Employees of Jefferson County
Appeal from Jefferson Circuit Court
(CV-07-900939)
SEE, Justice.
Steven Greene, Mark Persall, Larry Owen, Charles Horton,
James Phillips, and Cassie Bell, on behalf of themselves and
all others similarly situated, appeal from a summary judgment
in favor of the Jefferson County Commission and the General
Retirement System for Employees of Jefferson County. We
1070300
Act No. 497 provides: "Except as herein otherwise
1
provided, every person becoming an employee of [Jefferson]
County subsequent to the effective date of this Act and
occupying a position subject to the civil service system
applicable to the County shall become a member of the system
on the date he enters the service of the County."
2
affirm.
Facts and Procedural History
The General Retirement System for Employees of Jefferson
County ("the retirement system") was created in 1965 by the
enactment of Act No. 497, Ala. Acts 1965. The retirement
1
system requires that each employee-member contribute six
percent of his or her regular gross salary to the retirement
system. Employee-members are credited with one year of paid
service for each year they are employed by Jefferson County
and contribute their six percent to the retirement system. In
return for an employee-member's six-percent contribution to
the retirement system, Jefferson County contributes six
percent in matching funds. However, in order to ensure that
the
retirement system
remains
actuarially
sound,
the
retirement system invests the contributed funds to compensate
for the difference between the total contributions and the
1070300
The pension an employee-member receives from the
2
retirement system is tied to the number of years of "paid
service" the employee-member has accumulated. This is the
number of years the employee-member was employed by Jefferson
County and paid into the retirement system. The years an
employee works for Jefferson County but does not make
contributions into the retirement system are referred to as
"unpaid service."
3
actual pension payouts.2
At some point during the 1970s, approximately 238
Jefferson County sheriff's deputies voluntarily ceased
participating in the retirement system and withdrew their
contributions, with interest. Those employees who opted out
of the retirement system had their years of paid service
reduced to zero, although they continued to receive one year
of unpaid service for each year they continued to work for
Jefferson County.
In June 2003, the legislature passed Act No. 2003-343,
Ala. Acts 2003 (hereinafter "the Act"), allowing Jefferson
County employees who had opted out of the retirement system to
opt back in and to receive credit for prior periods of unpaid
service rendered to Jefferson County, the Jefferson County
sheriff's department, or any municipality in Jefferson County
"or other jurisdiction." The Act also allowed Jefferson
1070300
Section 2, subsection (a), of the Act provides that
3
"[c]onversion of unpaid prior service to paid service shall be
limited to 20 years."
4
County employee-members who did not opt out and who were
contributing to the
retirement
system to convert
prior
periods
of unpaid service to paid service. In order to convert
3
unpaid prior service to paid service, an employee-member must
contribute six percent of his or her current annual salary for
each year the employee-member wishes to convert. The Act then
requires Jefferson County to contribute six percent in
matching funds and any further contributions that are
necessary to ensure that the retirement system remains
actuarially sound.
Subsequent to the passage of the Act, two groups of
Jefferson County employees filed separate class-action
lawsuits to enforce the provisions of the Act. Sheriff Deputy
Jimmy Black brought one of the class-action lawsuits against
the pension board of the retirement system on behalf of other
deputies who had opted out of the retirement system and who
were seeking to enforce the provisions of the Act and to
rejoin the retirement system. A second subclass in the first
class-action lawsuit consisted of employees who had sought a
1070300
5
hearing before a special master when Jefferson County did not
allow the employees to convert unpaid service to paid service
under the Act. Employee-members who had not opted out of the
retirement system brought a separate lawsuit seeking to
invalidate
the
Act.
The
lawsuits
were
eventually
consolidated, and both Jefferson County and the retirement
system were named as defendants (the consolidated actions are
hereinafter referred to as "the Black litigation").
Judge Jerry Fielding was specially assigned to preside
over the Black litigation in the Jefferson Circuit Court.
Judge Fielding found that the Act was not unconstitutional on
the grounds asserted, and he ordered Jefferson County and the
retirement system to implement the provisions of the Act
allowing nonparticipating employees to opt back into the
retirement system. None of the defendants appealed Judge
Fielding's decision.
In response to Judge Fielding's order requiring Jefferson
County to implement the provisions of the Act, the County
passed Resolution JUN-7-2006-683 ("the resolution"). The
resolution provides that eligible employees of Jefferson
County who convert unpaid service to paid service under the
1070300
Jefferson County enacted the Sick Leave Retirement
4
Conversion Program in 1993. This program allows employees of
Jefferson County to conserve their paid sick-leave benefits.
A retiring employee with at least 15 years of employment with
Jefferson County who has opted to save his or her sick-leave
time is eligible to receive a credit whereby the retiring
employee uses the accumulated sick-leave time to remain on the
Jefferson County payroll as an off-duty employee until the
employee's actual retirement date.
6
Act forfeit any claim to retirement benefits under both the
Jefferson County Retiree Health Insurance Plan and the
Jefferson County Sick Leave Retirement Conversion Program.4
Jefferson County defended the resolution as a necessary
measure to preserve the economic stability of the County. The
actuary for Jefferson County estimated that if all eligible
employees availed themselves of the provisions of the Act,
Jefferson
County's
obligation
to
contribute
matching
funds
and
to compensate for investment earnings that would have been
realized
if
the
employees
had
been
making
ongoing
contributions to the retirement system would cost the County
$64 million. The resolution also stated that one of its
express purposes is to allow Jefferson County to "fulfill its
statutory financial obligations."
On June 19, 2006, the plaintiffs in the Black litigation
moved for supplemental relief in the form of a preliminary
1070300
Section 43 provides: "In the government of this state,
5
except in the instances in this Constitution hereinafter
expressly directed or permitted, the legislative department
shall never exercise the executive and judicial powers, or
either of them; the executive shall never exercise the
legislative and judicial powers, or either of them; the
judicial shall never exercise the legislative and executive
powers, or either of them; to the end that it may be a
government of laws and not of men."
7
injunction enjoining Jefferson County from enforcing the
provisions of the resolution. The Jefferson County
Commission, the pension board of the retirement system, and
the retirement system challenged the motion, arguing, among
other things, that the plaintiffs had failed to post an
injunction bond. The plaintiffs responded by requesting that
the trial court consolidate the hearing on the preliminary
injunction with the trial on the permanent injunction.
Judge Fielding denied the plaintiffs' motion for
supplemental relief, finding that there was no justiciable
issue in the motion because the court could not enjoin the
enforcement of the resolution. He held that to do so would
violate Article III, § 43, Alabama Constitution 1901. Judge
5
Fielding also found that "the issues presented in the
plaintiffs' challenge to the Resolution are completely
separate and involve different facts, issues, and theories
1070300
Each of these individuals was a member of one of the
6
several plaintiff subclasses in the Black litigation.
8
than the previous action challenging [the Act]." The
plaintiffs in the Black litigation did not appeal Judge
Fielding's denial of the motion for supplemental relief.
On November 21, 2006, Judge Fielding certified his
judgment in the Black litigation as final pursuant to Rule
54(b), Ala. R. Civ. P. The judgment specifically states that
"[t]his Final Judgment entered under Ala. R. Civ. P. 54
together with the previous orders entered by this Court in
these matters disposes of all claims for relief made by any
party." Neither side to the dispute in the Black litigation
appealed Judge Fielding's judgment.
On May 18, 2007, Steven Greene, Mark Persall, Larry Owen,
Charles Horton, James Phillips, and Cassie Bell, on behalf of
6
themselves
and
all
others
similarly
situated
(hereinafter
"the
Greene parties"),
sued the
Jefferson
County
Commission and
the
retirement
system
(collectively
"the
County")
in
the
Jefferson
Circuit Court. The Greene parties sought a judgment declaring
that the Jefferson County Commission, by passing the
resolution, "retaliated [against] and/or administered unequal
1070300
Section 6-5-20(a), Ala. Code 1975, provides:
7
"An action must not be commenced against a county
until the claim has been presented to the county
commission, disallowed or reduced by the commission
and the reduction refused by the claimant."
9
treatment"
to
Jefferson County employees
who sought to convert
unpaid service to paid service under the Act. The Greene
parties also sought a permanent injunction to prevent the
County from enforcing the resolution, as well as other
equitable relief to eliminate the effects of the resolution.
The County moved for a summary judgment, arguing (1) that the
Greene parties' claims are barred by the doctrines of res
judicata and collateral estoppel; (2) that Art. III, § 43,
Ala. Const. 1901, prevents the trial court from hearing the
Greene parties' challenge to the resolution; (3) that Alabama
law does not recognize an equal-protection challenge; and (4)
that the Greene parties' claims are due to be dismissed
because the Greene parties did not present their claims to the
Jefferson County Commission before commencing their action
and, thereby, violated § 6-5-20 et seq., Ala. Code 1975.7
Judge Vance of the Jefferson Circuit Court entered a
summary judgment in favor of the County. His order states,
1070300
Section 12-24-2, Ala. Code 1975, provides, in pertinent
8
part:
"If the action is assigned to ... a circuit judge
who has received more than two thousand dollars
($2,000) based on the information set out in any one
certificate of disclosure, then, within 14 days
after all parties have filed a certificate of
disclosure, any party who has filed a certificate of
disclosure setting out an amount including all
amounts contributed by any person or entity
designated in subsection (b), below the limit
applicable to the justice or judge, or an amount
above the applicable limit but less than that of any
opposing party, shall file a written notice
requiring recusal of the justice or judge or else
such party shall be deemed to have waived such right
to a recusal. Under no circumstances shall a
justice or judge solicit a waiver or participate in
the action in any way when the justice or judge
knows that the contributions of a party or its
attorney exceed the applicable limit and there has
been no waiver of recusal."
10
in its entirety:
"For
the
reasons
stated
therein,
the
defendants'
motion for summary judgment is due to be GRANTED.
Neither the named class representative nor any
member of the putative class may maintain the claims
raised in the complaint."
Twenty-two days later in a postjudgment motion, the Greene
parties moved Judge Vance to recuse himself because, the
Greene parties argued, Judge Vance and counsel for the County
had violated § 12-24-2, Ala. Code 1975, by failing to notify
8
the Greene parties that counsel for the County had contributed
1070300
11
more than $2,000 to Judge Vance's election campaign. The
Greene parties also moved the trial court for a new trial or,
in the alternative, to alter, amend, or vacate the judgment or
for relief from judgment. Judge Vance denied the Greene
parties' recusal motion and also denied the Greene parties'
motion for a new trial and other postjudgment relief. The
Greene parties now appeal.
Standard of Review
"'We review the trial court's grant or denial of
a summary judgment motion de novo.' Smith v. State
Farm Mut. Auto. Ins. Co., 952 So. 2d 342, 346 (Ala.
2006) (citing Bockman v. WCH, L.L.C., 943 So. 2d 789
(Ala. 2006)). A summary judgment is proper if there
is no genuine issue of material fact and the moving
party is entitled to a judgment as a matter of law.
Rule 56(c)(3), Ala. R. Civ. P. If the movant meets
this initial burden, the burden then shifts to the
nonmovant to present 'substantial evidence' of a
genuine issue of material fact. Ex parte Alfa Mut.
Gen. Ins. Co., 742 So. 2d 182, 184 (Ala. 1999).
Substantial evidence is 'evidence of such weight and
quality that fair-minded persons in the exercise of
impartial
judgment
can
reasonably
infer
the
existence of the fact sought to be proved.' West v.
Founders Life Assurance Co. of Florida, 547 So. 2d
870, 871 (Ala. 1989); see also § 12-21-12(d), Ala.
Code 1975. In determining whether a genuine issue
of material fact exists, this Court views the
evidence in the light most favorable to the
nonmovant and resolves all reasonable doubts in
favor of the nonmovant. Jones v. BP Oil Co., 632
So. 2d 435, 436 (Ala. 1993). 'The trial court's
ruling on a question of law carries no presumption
of correctness, and this Court reviews de novo the
1070300
In addition to the arguments addressed below, the Greene
9
parties also argue that Judge Vance was required to recuse
himself from this case pursuant to § 12-24-2(c), Ala. Code
1975. The Greene parties are precluded from seeking Judge
Vance's recusal on this ground, however, because they raised
this issue for the first time in their posttrial motion.
Alabama courts have held: "If a party has knowledge of a judge
or master's partiality and that information may support a
recusal, the party may not lie in wait and raise the issue of
recusal after learning the outcome of the proceeding." Adams
v. Board of Trs. of Univ. of South Alabama, 676 So. 2d 1326,
1328 (Ala. Civ. App. 1996). Campaign contributions are a
matter of public record; therefore, the Greene parties are
deemed to have
constructive knowledge
of
the alleged
violation
of §§ 12-24-1 and -2. See Ex parte Kenneth D. McLeod Family
Ltd. P'ship XV, 725 So. 2d 271, 273 (Ala. 1998) (denying the
plaintiff's motion for a new trial because the defendant's
campaign contribution "along with all other contributions
received by the trial judge in her campaign, was a matter of
public record," and therefore the plaintiff was "on notice
that grounds for a recusal motion might exist"). See also
Brackin v. Trimmier Law Firm, 897 So. 2d 207, 233-34 (Ala.
2004) (Brown, J., statement of nonrecusal) (noting that "the
12
trial court's conclusion as to the appropriate legal
standard to be applied.' Dunlap v. Regions Fin.
Corp., 983 So. 2d 374, 377 (Ala. 2007) (citing Ex
parte Graham, 702 So. 2d 1215, 1221 (Ala. 1997))."
McCutchen Co. v. Media Gen., Inc., 988 So. 2d 998, 1001 (Ala.
2008).
Analysis
The Greene parties provide several reasons why, they
contend, the trial court erred in entering a summary judgment
in favor the County. First, the Greene parties argue that
9
1070300
fact that it is questionable whether §§ 12-24-1 and -2, Ala.
Code 1975, which have not yet obtained 'preclearance' from the
United States Justice Department under the Voting Rights Act
of 1965, are even enforceable has been well documented by this
Court").
13
the County failed to carry its summary-judgment burden
because, they say, the County failed to include a narrative
summary of undisputed facts as required by Rule 56(c)(1), Ala.
R. Civ. P. Second, the Greene parties argue that the doctrine
of res judicata does not apply in this case because, they
argue, the Black litigation involved different parties and
issues. The Greene parties further argue that even if the
doctrine of res judicata applies in this case, the County
should be judicially estopped from asserting that defense
because, they say, the County's position in the Black
litigation is inconsistent with the position it asserts in
this action. Finally, the Greene parties argue that this case
does not implicate a separation-of-powers issue under § 43,
Ala. Const. 1901, because the resolution was not a valid
exercise of the County's legislative power.
A. The County's Summary-Judgment Burden
A summary judgment is proper if there is no genuine issue
of material fact and the moving party is entitled to a
1070300
Rule 56(c)(1), Ala. R. Civ. P., provides that a motion
10
for a summary judgment
"shall be supported by a narrative summary of what
the movant contends to be the undisputed material
facts; that narrative summary may be set forth in
the motion or may be attached as an exhibit. The
narrative summary shall be supported by specific
references to pleadings, portions of discovery
materials, or affidavits and may include citations
to legal authority."
The County also argues that the Greene parties have not
11
preserved for appellate review the issue of its failure to
provide a narrative summary of the undisputed facts with its
14
judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P.
If the movant meets this initial burden, the burden then
shifts to the nonmovant to present "substantial evidence" of
a genuine issue of material fact. Ex parte Alfa Mut. Gen.
Ins. Co., 742 So. 2d 182, 184 (Ala. 1999). The Greene parties
argue that the burden never shifted to them to present
substantial evidence creating a genuine issue of material fact
because, the Greene parties say, the County did not include a
narrative summary of undisputed facts with its summary-
judgment motion as required by Rule 56(c)(1), Ala. R. Civ. P.10
However, the County argues that it did support its
summary-judgment motion with a narrative summary of the
undisputed facts.
The County's brief in support of its
11
1070300
summary-judgment motion because, the County says, the Greene
parties did not raise this argument in the trial court. In
support of this argument, the County cites Copeland v. Samford
University, 686 So. 2d 190 (Ala. 1996). In Copeland, this
Court held that the Copelands did not preserve for appellate
review
the
argument
that
Samford
University's
summary-judgment
motion did not include a narrative summary of undisputed facts
because they "made no objection on this basis at any time
before the court ruled on the motion for summary judgment."
686 So. 2d at 196. Our decision in Horn v. Fadal Machining
Centers, LLC, 972 So. 2d 63 (Ala. 2007), however, calls into
question whether this aspect of our holding in Copeland
remains good law. We need not decide this question because we
conclude that the County did include such a narrative summary.
15
summary-judgment motion contains a statement of facts with
references to materials that are attached to the brief as
exhibits. Those exhibits include the stipulations regarding
class
certification
of
the
plaintiffs
in
the
Black
litigation,
the Black plaintiffs' motion for supplemental relief, Judge
Fielding's order denying the Black plaintiffs' motion for
supplemental relief, Judge Fielding's final judgment, and a
memorandum sent by the County to all Jefferson County
employees regarding conversion of unpaid service to paid
service under the terms of the resolution. The County
contends that the statement of facts contained in its brief
and the references to the attached exhibits satisfy the
requirement of Rule 56(c) that a motion for a summary
1070300
16
judgment include a narrative summary of undisputed facts. We
agree.
In Cashion v. Torbert, 881 So. 2d 408 (Ala. 2003), this
Court addressed a similar situation. In Cashion, Torbert
moved for a summary judgment based upon the affirmative
defense of res judicata. The summary-judgment motion provided
"a detailed history relevant to the defense of res judicata,
attaching numerous supporting affidavits." Cashion, 881 So. 2d
at 420. The supporting documents attached by Torbert included
copies of "Cashion's report of insolvency filed in the probate
court; her brief filed in support of that report"; and a copy
of the trial judge's order on final settlement. Cashion, 881
So. 2d at 420. This Court held that Torbert's "motion was
adequately supported and adequately presented the undisputed
issues of fact material to the defense of res judicata."
Cashion, 881 So. 2d at 420.
In this case, as in Cashion, the County included with its
motion a statement of facts relevant to the defense of res
judicata and attached to its brief in support of the motion
copies of relevant documents that provide the basis for the
County's assertion that this claim is barred by the doctrine
1070300
17
of res judicata. In the narrative statement, the County
refers to, and attaches a copy of, the motion for supplemental
relief in the Black litigation, Judge Fielding's order denying
that motion, and stipulations regarding class certifications
in the Black litigation. These documents form the basis for
the County's argument that the Greene parties' claims are
barred by the doctrine of res judicata and are cited by the
County in its statement of facts in its summary-judgment
motion. The County, like Torbert in Cashion, did provide "a
detailed history relevant to the defense of res judicata,
attaching numerous supporting affidavits." Cashion, 881 So. 2d
at 420. Therefore, we conclude that the County sufficiently
complied with Rule 56(c)(1), Ala. R. Civ. P., insofar as that
rule requires that a narrative summary of the undisputed facts
be included with a summary-judgment motion.
B. The Doctrine of Res Judicata
The Greene parties contend that the doctrine of res
judicata does not apply to bar their action because, they
argue, the judgment in the Black litigation was not a final
judgment on the merits and the Black litigation and this
action are different causes of action involving different
1070300
18
issues. The County contends that Judge Fielding's denial of
the motion for supplemental relief in the Black litigation and
his final order incorporating all of his previous orders in
that litigation satisfies the elements of res judicata.
The elements of res judicata are "'(1) a prior judgment
on the merits, (2) rendered by a court of competent
jurisdiction, (3) with substantial identity of the parties,
and (4) with the same cause of action presented in both
actions.'" Chapman Nursing Home, Inc. v. McDonald, 985 So. 2d
914, 919 (Ala. 2007) (quoting Equity Res. Mgmt., Inc. v.
Vinson, 723 So. 2d 634, 636 (Ala. 1998)).
1. Judgment on the Merits
First, we agree with the County that Judge Fielding's
denial of the motion for supplemental relief in the Black
litigation is a prior judgment on the merits. In his order
denying the plaintiffs' motion for supplemental relief, Judge
Fielding stated:
"The
Jefferson
County
Commission
has
been
vested
with the responsibility for maintaining a balanced
budget for the County and funding and overseeing
vital public services for the citizens of the
County. In adopting the Resolution, the Commission
did not abuse [its] vested discretion, and did not
engage in fraud. This Court's inquiry must end
1070300
19
there, as the authority to determine the amount of
appropriations necessary for the performance of
government function is a legislative power, not a
judicial power. In re R.B.J., 675 So. 2d 457, 458
(Ala. Civ. App. 1996). This Court would infringe
upon the boundaries between our State's branches of
government delineated in Sec. 43 of the Alabama
Constitution if it were to enjoin this Resolution.
This Court also find[s] that the issues presented in
Plaintiff's
challenge
to
the
Resolution
are
completely separate and involve different facts,
issues, and theories than the previous action
challenging Act 03-343. Thus, the Court finds that
there is no justiciable issue involved in the
Plaintiffs' Motion for Supplemental Relief."
Judge Fielding denied the motion for supplemental relief,
finding that the resolution was a discretionary legislative
act by the Jefferson County Commission that implicated the
Commission's obligation to enact and maintain a balanced
budget. Judge Fielding found that an injunction preventing
the enforcement of the resolution would violate the
separation-of-powers
doctrine
enshrined in §
43
of
the Alabama
Constitution. This was a judgment on the merits.
On November 21, 2006, Judge Fielding entered his final
order, which incorporated all previous orders entered by the
trial court, including the order denying the motion for
1070300
Rule 4(a)(1), Ala. R. App. P., provides, in relevant
12
part:
"Except as otherwise provided herein, in all cases
in which an appeal is permitted by law as of right
to the supreme court or to a court of appeals, the
notice of appeal required by Rule 3 shall be filed
with the clerk of the trial court within 42 days (6
weeks) of the date of the entry of the judgment or
order appealed from ...."
20
supplemental relief. Under Rule 4(a)(1), Ala. R. App. P.,12
the plaintiffs in the Black litigation had 42 days from the
date of the entry of that final judgment to appeal the denial
of their motion for supplemental relief. The plaintiffs did
not appeal. Therefore, that judgment became final for res
judicata purposes after the time for filing an appeal had
elapsed. See Omega Leasing Corp. v. Movie Gallery, Inc., 859
So. 2d 421, 424 n.1 (Ala. 2003) (summarizing Faison v. Hudson,
243 Va. 413, 419, 417 S.E.2d 302, 305 (1992), as "stating that
'a judgment is not final for the purposes of res judicata ...
when it is being appealed or when the time limits fixed for
perfecting the appeal have not expired'").
The
Greene
parties
contend,
however,
that
Judge
Fielding's statement -- that "the issues presented in
Plaintiff's challenge to the Resolution are completely
1070300
21
separate and involve different facts, issues, and theories
than the previous action challenging Act 03-343. Thus, the
Court finds that there is no justiciable issue involved in the
Plaintiffs' Motion for Supplemental Relief." -- makes it
impossible for the order to be a final judgment on the
merits. The Greene parties argue that this is so because,
they argue, there can be no final judgment from a dispute that
contains no justiciable issues. However, the Greene parties
do not cite any authority to support this argument. "'"Where
an appellant fails to cite any authority, we may affirm, for
it is neither our duty nor function to perform all the legal
research for an appellant."'" McCutchen Co., 988 So. 2d at
1004 (quoting Henderson v. Alabama A & M Univ., 483 So. 2d
392, 392 (Ala. 1986), quoting in turn Gibson v. Nix, 460 So.
2d 1346, 1347 (Ala. Civ. App. 1984)).
The Greene parties also argue that Judge Fielding's
denial of the motion for supplemental relief in the Black
litigation was not a final judgment on the merits because,
they say, in denying that motion Judge Fielding denied the
plaintiffs' motion for a preliminary injunction. The Greene
parties cite EB Investments, L.L.C. v. Atlantis Development,
1070300
Rule 65(c), Ala. R. Civ. P., provides, in relevant part:
13
"No ... preliminary injunction shall issue except
upon the giving of security by the applicant, in
such sum as the court deems proper, for the payment
of such costs, damages, and reasonable attorney fees
as may be incurred or suffered by any party who is
found
to
have
been
wrongfully
enjoined
or
restrained."
22
Inc., 930 So. 2d 502, 510 (Ala. 2005), in which this Court
stated that the trial court's ruling on a motion for a
preliminary injunction is not a prior judgment for res
judicata purposes because it is "neither a final judgment nor
was it rendered on the merits" of the claims involved in the
action.
The County, however, responds that in denying the motion
for supplemental relief, Judge Fielding was actually denying
a request for a permanent injunction rather than a request for
a preliminary injunction. The County points out that the
plaintiffs in the Black litigation sought to convert their
motion for a preliminary injunction into a motion for a
permanent
injunction
because
they
failed
to
post
a
preliminary-injunction bond as required
by
Rule 65(c),
Ala. R.
Civ. P.
13
In their response to the County's motion opposing the
1070300
23
motion for supplemental relief, the plaintiffs in the Black
litigation stated that their motion for supplemental relief
was "due to be granted in the form of a permanent injunction."
Thus, we agree with the County that the plaintiffs in the
Black litigation sought a permanent injunction and that when
Judge Fielding denied the motion for supplemental relief he
denied a motion for a permanent injunction. The denial of a
motion for a permanent injunction can be a final judgment for
res judicata purposes. See 43A C.J.S. Injunctions § 356 (2004)
("[A]n interlocutory judgment granting or refusing an
injunction may be res judicata with respect to the right to a
permanent injunction, where the judgment on the application
for a preliminary injunction was based solely on a question of
law, or where the proof at the trial is substantially the same
as it was at the interlocutory hearing."). Therefore, Judge
Fielding's denial of the motion for supplemental relief was a
final judgment on the merits for res judicata purposes.
2. Court of Competent Jurisdiction
Neither side disputes that Judge Fielding's denial of the
motion for supplemental relief and his final judgment in the
Black litigation was a decision rendered by a court of
1070300
24
competent jurisdiction. See AAA Mobile Home Movers, Inc. v.
Holmes, 607 So. 2d 236, 238 (Ala. Civ. App. 1992) ("Clearly,
the Jefferson County Circuit Court, which entered the summary
judgment denying the appellant's claims, was a court of
competent jurisdiction.").
3. Substantial Identity of Parties
The parties in the Black litigation are substantially
identical to the parties involved in this dispute. Our
caselaw requires that "there is a substantial identity of
parties in the two actions." Ex parte Ford Motor Credit Co.,
772 So. 2d 437, 440 (Ala. 2000). Substantial identity
requires that the "'"parties be identical, sometimes referred
to as the mutuality of estoppel requirement."'" Stewart v.
Brinley, 902 So. 2d 1, 10 (Ala. 2004) (quoting McMillian v.
Johnson, 878 F. Supp. 1473, 1520 (M.D. Ala. 1995)). "'An
exception is made to this requirement for parties in privity
with a party to the prior action.'" Stewart, 902 So. 2d at 10
(quoting McMillian, 878 F. Supp. at 1520) (emphasis omitted).
A party is deemed to be in privity with a party to a prior
action when there is "'"an identity of interest in the subject
matter of litigation."'" Stewart, 902 So. 2d at 11 (quoting
1070300
25
Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988), quoting in
turn Issue Preclusion in Alabama, 32 Ala. L. Rev. 500, 521
(1981)).
The County argues that the Greene parties were all class
members of one of the subclasses in the Black litigation. In
fact, Jim Phillips, one of the Greene parties involved in this
dispute, acted as a class representative in the Black
litigation for the subclass that filed the motion challenging
the validity of the resolution. The remaining Greene parties
who were not members of that particular subclass share that
same interest in the subject matter of the dispute, namely,
invalidating the resolution.
This Court has stated: "'"'A person may be bound by a
judgment even though not a party to a suit if one of the
parties to the suit is so closely aligned with his interests
as to be his virtual representative.'"'" Gonzalez, LLC v.
DiVincenti, 844 So. 2d 1196, 1203 (Ala. 2002) (quoting Green
v. Wedowee Hosp., 584 So. 2d 1309, 1315 (1991), quoting other
cases). In the Black litigation, the subclass of Jefferson
County deputies and the subclass of Jefferson County employees
had an identical interest in seeking the invalidation of the
1070300
The Greene parties have also failed to comply with Rule
14
28(a)(10), Ala. R. App. P., because they have failed to
include in their brief any mention of relevant facts or legal
authority that could controvert the conclusion that the
substantial-identity-of-the-parties requirement is satisfied
in this case. "Rule 28(a)(10) requires that arguments in
briefs contain discussions of facts and relevant legal
authorities that support the party's position. If they do
not, the arguments are waived." White Sands Group, L.L.C. v.
PRS II, LLC, [Ms. 1070050, April 18, 2008] ___ So. 2d ___, ___
(Ala. 2008).
26
resolution because, under the terms of the resolution, members
of both subclasses would have been required to forfeit certain
discretionary benefits in order to opt back into the
retirement system. Therefore, the third element of res
judicata is met in this case because the parties in this case
are substantially identical to the parties involved in the
Black litigation.14
4. Same Cause of Action
The fourth and final element of res judicata –- that the
same cause of action be presented in both actions –- is also
met in this case. "'Res judicata applies not only to the
exact legal theories advanced in the prior case, but to all
legal theories and claims arising out of the same nucleus of
operative facts.'" Old Republic Ins. Co. v. Lanier, 790 So.
2d 922, 928 (Ala. 2000) (quoting Wesch v. Folsom, 6 F.3d 1465,
1070300
27
1471 (11th Cir. 1993)). Two causes of action are the same for
res judicata purposes "'when the same evidence is applicable
in both actions.'" Old Republic Ins. Co., 790 So. 2d at 928
(quoting Hughes v. Martin, 533 So. 2d 188, 191 (Ala. 1988)).
In this case, the Greene parties seek a judgment
declaring that the sole purpose of the resolution is to punish
Jefferson County employees who convert unpaid service to paid
service under the Act and a permanent injunction to prevent
the County from enforcing the resolution. The plaintiffs in
the Black litigation who filed the motion for supplemental
relief likewise sought to enjoin the County from enforcing the
resolution. Because the claims in this litigation and those
in the Black litigation both seek to prevent the County from
enforcing the resolution, the claims in the two cases arise
out of the same nucleus of operative facts. Additionally, the
Greene parties, in seeking to prevent the County from
enforcing the resolution, rely on the same evidence and
advance many of the same arguments raised in the plaintiffs'
motion for supplemental relief in the Black litigation.
The Greene parties insist that this cause of action is
not the same as the cause of action in the Black litigation
1070300
28
because, they say, Judge Fielding recognized that there was no
justiciable dispute before him when he denied the motion for
supplemental relief. To support this argument, the Greene
parties point to the following language in Judge Fielding's
denial of the motion for supplemental relief: "This Court also
find[s] that the issues presented in Plaintiff's challenge to
the Resolution are completely separate and involve different
facts, issues, and theories than the previous action
challenging Act 03-343. Thus, the Court finds that there is
no justiciable issue involved in the Plaintiffs' Motion for
Supplemental Relief." The Greene parties argue that "a claim
that is not properly before an earlier court could [not]
preclude the claim being properly presented in a subsequent
action." Greene parties' brief at 34-35. However, as we noted
previously, this was an alternative holding. Judge Fielding
based his denial of the motion for supplemental relief on the
fact that the granting of injunctive relief would violate the
separation-of-powers doctrine as established in § 43 of the
Alabama Constitution. Therefore, we agree that the final
element of res judicata is met because this cause of action is
the same cause of action raised in the motion for supplemental
1070300
29
relief in the Black litigation.
The County has demonstrated that there was a prior final
judgment on the merits in the Black litigation, that that
judgment was rendered by a court of competent jurisdiction,
that the parties in the Black litigation and this action are
substantially identical, and that the cause of action was the
same in both disputes. Thus, the four elements of res
judicata are met, and the claims raised by the Greene parties
are barred.
C. Judicial Estoppel
The Greene parties argue that even if the doctrine of res
judicata would apply to prevent them from raising their
claims, the County should be judicially estopped from raising
the doctrine of res judicata as an affirmative defense. For
judicial estoppel to apply,
"'(1) "a party's later position must be 'clearly
inconsistent' with its earlier position"; (2) the
party must have been successful in the prior
proceeding so that "judicial acceptance of an
inconsistent position in a later proceeding would
create 'the perception that either the first or
second court was misled'" (quoting Edwards v. Aetna
Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982));
and (3) the party seeking to assert an inconsistent
position must "derive an unfair advantage or impose
an unfair detriment on the opposing party if not
1070300
The County's third argument, that jurisdiction was not
15
proper in the Bessemer Division of the Jefferson Circuit
Court, is not at issue in the Greene parties' judicial-
estoppel argument.
30
estopped." [New Hampshire v. Maine,] 532 U.S. [742,]
at 750-51, 121 S. Ct. 1808 [(2001)]. No requirement
of a showing of privity or reliance appears in the
foregoing statement of factors to consider in
determining the applicability of the doctrine of
judicial estoppel."
Middleton v. Caterpillar Indus., Inc., 979 So. 2d 53, 60-61
(Ala. 2007) (quoting Ex parte First Alabama Bank, 883 So. 2d
1236, 1244-45 (Ala. 2003), citing in turn New Hampshire v.
Maine, 532 U.S. 742 (2001)).
The County raised three arguments in response to the
motion for supplemental relief filed by the plaintiffs in the
Black litigation. One of the arguments was that § 43 of the
Alabama Constitution deprived the court of jurisdiction to
entertain the plaintiffs' motion absent a showing of fraud or
abuse of discretion by the County. The second argument was
that the trial court had no basis for hearing the motion,
because the subject matter of the resolution –- the Jefferson
County Retiree Health Insurance Plan and the Jefferson County
Sick Leave Retirement Conversion Program –- were unrelated to
the question of the validity of the Act. The
15
1070300
31
Greene parties argue that the first element of judicial
estoppel is met here because, they say, the County has
asserted inconsistent positions by successfully arguing "to
the court in the Black Litigation that the issue of the
Resolution's validity was not even before the court. But, in
the instant case [the County] argue[s] the issue was before
the Black court and was decided in [the County's] favor."
Greene parties' brief at 36.
The
County
contends
that
its
positions
were
not
inconsistent because, it says, it merely presented several
alternative arguments to support the denial of the motion for
supplemental relief. The County argues that its "current
position in this proceeding that Judge Fielding issued a final
judgment on the merits that § 43 [of the Alabama Constitution]
bars review of the Resolution is clearly not inconsistent with
their prior position that argued for this exact result."
County's brief at 39.
We agree with the County. Judge Fielding found that the
resolution was a valid exercise of Jefferson County's
legislative power and that, in enacting the resolution,
Jefferson County did not engage in fraud or abuse its
1070300
32
discretion. The County argued for this result in the Black
litigation and has maintained this position throughout this
action as well. Judge Fielding's second conclusion –- that
the challenge to the resolution involved different facts,
issues, and theories then the challenge of the Act –- was an
alternative holding that was based upon the County's
alternative argument that the challenge to the resolution was
not at issue in the Black litigation. The County raised
alternative arguments in seeking the denial of the motion for
supplemental relief in the Black litigation; however, the
County has consistently maintained in both actions the
position that judicial review of the resolution would violate
separation-of-powers principles. The doctrine of judicial
estoppel "'applies to preclude a party from assuming a
position in a legal proceeding inconsistent with one
previously asserted.'" Selma Foundry & Supply Co. v. Peoples
Bank & Trust Co., 598 So. 2d 844, 846 (Ala. 1992) (quoting
Oneida Motor Freight, Inc. v. United Jersey Bank, 848 F.2d
414, 419 (3d. Cir. 1988)). See also Astor Chauffeured
Limousine Co. v. Runnfeldt Inv. Corp., 910 F.2d 1540, 1548
(7th Cir. 1990) (stating that in the context of judicial
1070300
Because we have determined that this action is barred by
16
the doctrine of res judicata, we need not address the § 43
issue.
33
estoppel "[t]he offense is not taking inconsistent positions
so much as it is winning, twice, on the basis of incompatible
positions"). Because the County's positions appear to be
consistent throughout both the Black litigation and these
proceedings, we conclude that the County is not judicially
estopped from raising the affirmative defense of res
judicata.16
Conclusion
We hold that the County's summary-judgment motion was
properly supported with a narrative summary of undisputed
facts and that the County was entitled to summary judgment on
the basis of res judicata. We also hold that the County was
not judicially estopped from raising the affirmative defense
of res judicata. Therefore, we affirm the trial court's
judgment.
AFFIRMED.
Cobb, C.J., and Woodall, Stuart, Smith, Parker, and
Murdock, JJ., concur. | November 14, 2008 |
a2b56f22-687f-4ec5-9a97-2a87f5ba0baa | Ex parte Bama Concrete and Terry Dewayne Edwards. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Michelle Washington Mims v. Bama Concrete and Terry Dewayne Edwards) | N/A | 1071376 | Alabama | Alabama Supreme Court | REL: 10/17/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
_________________________
1071376
_________________________
Ex parte Bama Concrete and Terry Dewayne Edwards
PETITION FOR WRIT OF MANDAMUS
(In re: Michelle Washington Mims
v.
Bama Concrete and Terry Dewayne Edwards)
(Greene Circuit Court, CV-06-93)
LYONS, Justice.
1071376
The complaint avers that Bama Concrete is "an Alabama
1
company doing business in Greene County, Alabama." Although
both parties use the name "Bama Concrete" in the style and
body of most of the documents filed in this case, we note that
the motion for a change of venue filed by Bama Concrete refers
to the company by the name "Bama Concrete Products Co., Inc."
2
Bama Concrete ("Bama") and Terry Dewayne Edwards,
1
defendants in an action pending in the Greene Circuit Court,
petition for a writ of mandamus directing the trial court to
transfer the action to the Tuscaloosa Circuit Court on the
basis of the doctrine of forum non conveniens. We grant the
petition and issue the writ.
I. Factual Background
The underlying action arises out of an automobile
accident in which a concrete truck driven by Edwards and owned
by Bama collided with an automobile driven by Michelle
Washington Mims. The accident occurred in Tuscaloosa County,
approximately one mile from Bama's office. Mims resides in
Tuscaloosa County. The accident investigator, Tuscaloosa
Police Department Officer John Huff, lives and works in
Tuscaloosa County. All other witnesses to the accident live
in Tuscaloosa County. Edwards resides in Greene County. The
concrete truck being driven by Edwards was returning to Bama's
office from a delivery made in Tuscaloosa County. Mims's
1071376
3
medical treatment was administered in either Tuscaloosa County
or Jefferson County.
After Mims filed her complaint in the Greene Circuit
Court, Bama and Edwards filed a motion requesting a change of
venue to the Tuscaloosa Circuit Court on the basis of the
doctrine of forum non conveniens. The motion was supported
by, among other things, an affidavit from Edwards, who resides
in Greene County, in which he stated: "It is my preference
that this action be tried in Tuscaloosa County as it is more
convenient with my work schedule." In response to the motion
for a change of venue, Mims contended that Edwards had been
involved in several automobile accidents and had received
several traffic citations in Greene County and stated that she
intended to offer at trial the testimony or the depositions of
the officers involved in each incident, who were in Greene
County. The trial court denied the motion.
II. Standard of Review
In Ex parte Kane, [Ms. 1060528, February 15, 2008] ___
So. 2d ___, ___ (Ala. 2008), we stated the standard of review
in a similar setting as follows:
"'The proper method for obtaining review of a
denial of a motion for a change of venue in a civil
1071376
4
action is to petition for the writ of mandamus.' Ex
parte National Sec. Ins. Co., 727 So. 2d 788, 789
(Ala. 1998). A writ of mandamus is appropriate when
the petitioner can demonstrate '(1) a clear legal
right to the order sought; (2) an imperative duty
upon the respondent to perform, accompanied by a
refusal to do so; (3) the lack of another adequate
remedy; and (4) the properly invoked jurisdiction of
the court.' Ex parte BOC Group, Inc., 823 So. 2d
1270, 1272 (Ala. 2001). Additionally, this Court
reviews mandamus petitions challenging a ruling on
venue on the basis of forum non conveniens by asking
whether the trial court exceeded its discretion. Ex
parte Fuller, 955 So. 2d 414 (Ala. 2006); Ex parte
Verbena United Methodist Church, 953 So. 2d 395
(Ala. 2006). Our review is limited to only those
facts that were before the trial court. Ex parte
Pike Fabrication, Inc., 859 So. 2d 1089, 1091 (Ala.
2002)."
III. Analysis
Alabama's forum non conveniens statute is set forth in §
6-3-21.1, Ala. Code 1975, and provides, in part, as follows:
"(a) With respect to civil actions filed in an
appropriate venue, any court of general jurisdiction
shall, for the convenience of parties and witnesses,
or in the interest of justice, transfer any civil
action or any claim in any civil action to any court
of general jurisdiction in which the action might
have been properly filed and the case shall proceed
as though originally filed therein. Provided,
however, this section shall not apply to cases
subject to Section 30-2-5 [not applicable on these
facts]."
Venue for this case is proper in both Greene and
Tuscaloosa Counties, so a transfer on the basis of forum non
1071376
5
conveniens is the only method by which Bama and Edwards can
obtain a transfer of the case to the Tuscaloosa Circuit Court.
A party moving for a transfer under § 6-3-21.1 has the initial
burden of showing, among other things, that the transfer is
justified based either on the convenience of the parties and
witnesses or in the "interest of justice." Ex parte McKenzie
Oil Co., [Ms. 1071011, August 22, 2008] ___ So. 2d ___ (Ala.
2008); Ex parte Verbena United Methodist Church, 953 So. 2d
395 (Ala. 2006).
Bama and Edwards rely on a line of cases in which this
Court has construed the interest-of-justice prong of § 6-3-
21.1 to warrant a transfer of an action from a forum with
little or no nexus with the plaintiff's chosen venue to a
venue where the action could have been filed so as to spare
the local judicial circuit--the original forum--from being
burdened unnecessarily with litigation lacking a sufficient
connection to the circuit. We recently reaffirmed this
principle in Ex parte McKenzie Oil Co. as follows:
"'This Court has held that litigation should be
handled in the forum where the injury occurred.' Ex
parte Fuller, 955 So. 2d 414, 416 (Ala. 2006),
citing Ex parte Sawyer, 892 So. 2d 898, 904 (Ala.
2004). Furthermore, the 'interest of justice' prong
of § 6-3-21.1 requires 'the transfer of the action
1071376
Bama argues that evidence of Edwards's prior acts is not
2
admissible in a negligent-entrustment claim unless it can be
shown that Bama knew or should have known of those prior acts.
We cannot resolve the issue before us based on Bama's
anticipation that some of or all the evidence of Edwards's
prior acts might not be admissible at trial.
6
from a county with little, if any, connection to the
action, to the county with a strong connection to
the action.' Ex parte National Sec. Ins. Co., 727
So. 2d [788,] 790 [(Ala. 1998)]. Thus, 'in
analyzing
the
interest-of-justice
prong
of
§
6-3-21.1, this Court focuses on whether the "nexus"
or "connection" between the plaintiff's action and
the original forum is strong enough to warrant
burdening the plaintiff's forum with the action.'
Ex parte First Tennessee Bank Nat'l Ass'n, [Ms.
1061392, April 11, 2008] ___ So. 2d ___, ___ (Ala.
2008). McKenzie therefore had the burden of
demonstrating '"that having the case heard in
[Escambia] County would more serve the interest of
justice ...."' Ex parte First Tennessee Bank, ___
So. 2d at ___ (quoting Ex parte Fuller, 955 So. 2d
at 416)."
___ So. 2d at ___.
Mims seeks to distinguish the line of cases relied on by
Bama and Edwards by noting that Bama does business in Greene
County and that one of her claims is based upon Bama's
negligent entrustment of its vehicle to Edwards. Mims
2
contends in her brief to this Court that "[a] significant
amount of evidence on the negligent entrustment count concerns
traffic violations and accidents which occurred in Greene
County." Mims offered records indicating that Edwards had
1071376
7
been issued several traffic citations and had been involved in
two accidents in Greene County. Mims contended in her
response to the motion for a change of venue filed with the
Greene Circuit Court that she intended to call as witnesses
Greene County authorities who investigated each traffic
violation and accident, as well as any other drivers involved
in the accidents in Greene County. Mims also contended: "It
is also conceivable that [she] would call some of Defendant
Edwards'[s] family members to testify as to his driving
history and detail what, if any, wrecks or traffic stops they
[had] witnessed."
Mims disputes Bama and Edwards's contention that Edwards
admitted in his deposition the existence of the traffic
citations and events, thereby necessitating live testimony as
to them. However, Bama and Edwards respond by referring this
Court to that portion of Edwards's deposition in which Edwards
denied that he was disputing any of the citations. Records
relating to Edwards's earlier driving offenses or accidents
that were obtained by a computer search of the AlaCourt
database or from the Department of Public Safety in Montgomery
were attached as exhibits to Edwards's deposition and
1071376
8
submitted to this Court in support of the petition for a writ
of mandamus. None of those documents came from Greene County
or are being maintained in Greene County. Consequently, the
nexus to Greene County based on the need for live testimony of
officers to establish the undisputed citations is minimal.
Furthermore, the exhibits before this Court indicate that
Edwards had been cited for two prior traffic violations in
Tuscaloosa County, as well as others from a host of different
jurisdictions.
With respect to the claimed necessity for witnesses
involved in the two accidents that occurred in Greene County,
without more information as to who was at fault or the nature
of each accident, we cannot permit the nexus of the case to
Greene County to rest on so weak a reed, especially when
viewed in context with the overwhelming weight of factors
favoring transfer of the action to Tuscaloosa County in the
interest of justice.
Finally, Mims argues in her brief to this Court that the
interest of justice does not require a transfer of this action
to the Tuscaloosa Circuit Court because "the Greene County
Circuit Court handles a modest case load while the Tuscaloosa
1071376
Even if we were to consider such evidence as relevant to
3
the transfer issue, it would not support the trial court's
ruling because the total workload of the trial judge here is
approximately the same as the workload of each circuit judge
9
County Circuit Court is overwhelmed." She further argues:
"Transferring [an action] to a congested venue like Tuscaloosa
County is not in the interest of justice or in the best
interest of [Bama and Edwards], because it will thwart the
speedy and timely resolution of this controversy." Mims did
not present this argument to the trial court; rather, she
argues it to this Court for the first time in her responsive
brief. "In considering a mandamus petition, we must look at
only those facts before the trial court." Ex parte American
Res. Ins. Co., 663 So. 2d 932, 936 (Ala. 1995). We emphasize
that facts before the trial court must be based upon
evidentiary material, which does not include the statements of
counsel in motions, briefs, and arguments. Ex parte McCord-
Baugh, 894 So. 2d 679, 686 (Ala. 2004). In support of her
argument to this Court, Mims attached a report from the
Administrative Office of Courts detailing the number of civil
cases that were filed in each of Alabama's circuit courts
during fiscal year 2007. We therefore need not decide in this
case the impact of such evidence.
3
1071376
in Tuscaloosa County. According to the report from the
Administrative Office of Courts, 1,913 civil cases were filed
in the Tuscaloosa Circuit Court, and only 96 civil cases were
filed in the Greene Circuit Court. Bama and Edwards point out
that the circuit judge in Greene County also serves as the
circuit judge for two other counties, with a total number of
455 civil cases for which he is responsible, and that four
circuit judges in Tuscaloosa County divide the workload of the
civil cases filed there.
10
According to the evidence before the trial court, the
accident took place in Tuscaloosa County, the investigating
officer and witnesses to the accident reside in Tuscaloosa
County, Bama's corporate office is located in Tuscaloosa
County, and Mims resides in Tuscaloosa County and received
medical treatment for her injuries resulting from the accident
there. The only connection to Greene County is that Edwards
resides there, but he works in Tuscaloosa County. The traffic
citations issued to Edwards and the accidents in which he was
involved in Greene County, as discussed above, are not a
significant factor for this Court to consider. Based upon the
evidence before the trial court when it considered Bama and
Edwards's motion to transfer, the tenuous nexus of this case
with Greene County does not justify burdening Greene County
with the trial of this case, which has a much more substantial
nexus with Tuscaloosa County. See Ex parte Verbena United
1071376
11
Methodist Church, 953 So. 2d at 400; Ex parte ADT Sec. Servs.,
Inc., 933 So. 2d 343, 346-47 (Ala. 2006); Ex parte Clarksville
Refrigerated Lines I, Ltd., 860 So. 2d 1261, 1265 (Ala. 2003).
Consequently, the trial court exceeded its discretion when it
denied Bama and Edwards's motion for a change of venue. Bama
and Edwards have clearly demonstrated that they are entitled
to the relief requested.
IV. Conclusion
Based upon the facts properly before this Court, we hold
that the "interest of justice" and the "convenience of parties
and witnesses" require the transfer of this action from Greene
County to Tuscaloosa County. We therefore grant Bama and
Edwards's petition for the writ of mandamus and direct the
trial court to enter an order transferring the case from the
Greene Circuit Court to the Tuscaloosa Circuit Court for the
convenience of the parties and the witnesses and in the
interest of justice.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur. | October 17, 2008 |
015d1a41-d1ba-4d77-93c2-122e21c62098 | Rodney D. Truss v. Sandra N. Chappell | N/A | 1051093 | Alabama | Alabama Supreme Court | 1
REL: 08/22/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1051093
_________________________
Rodney D. Truss
v.
Sandra N. Chappell
Appeal from Jefferson Circuit Court
(CV-03-5814)
MURDOCK, Justice.
Rodney D. Truss, the defendant below, appeals from the
denial of his motion, made pursuant to Rule 60(b)(4), Ala. R.
1051093
2
Civ. P., to set aside a default judgment in favor of the
plaintiff, Sandra N. Chappell. Truss contends that the
default judgment was void because, he says, Chappell did not
properly serve him with process. We agree, and we reverse and
remand.
In September 2001, Chappell's automobile was struck by a
truck owned by Old Dominion Freight Line, Inc. ("Old
Dominion"), and driven by John Clark. Chappell alleged that
the collision occurred when she was forced to stop suddenly to
avoid
Truss's
vehicle,
which
had swerved
into Chappell's lane.
In September 2003, Chappell sued Truss, Old Dominion, and
Clark. Chappell made an attempt to serve Truss with process
by certified mail in 2003; that attempt was unsuccessful. In
February 2005, Chappell again attempted to serve Truss with
process by certified mail. This second mailing was addressed
to Truss at his mother's address in Birmingham. The case-
action-summary sheet notes that this certified mail was
received at that address on February 5, 2005. The return
receipt shows that the envelope was received and signed for by
Sam Edwards. The record contains evidence indicating that
1051093
The record indicates that the trial court made its
1
determination of the amount of Chappell's damages from
evidence presented during the jury trial of Chappell's claims
against Old Dominion and Clark.
3
Edwards was Truss's younger brother, and that he was 15 years
old at the time.
Truss did not file an answer or otherwise respond to the
summons and complaint. In September 2005, Chappell filed an
application
for
an
entry
of
default
against
Truss,
accompanied
by an affidavit from Chappell's counsel stating that service
had been effected on Truss. A default was entered against
Truss on September 26, 2005.
Beginning on October 31, 2005, Chappell tried her claims
against Old Dominion and Clark before a jury and apparently
presented evidence of her damages. Truss did not appear for
trial. The jury returned a verdict against Chappell and in
favor of Old Dominion and Clark. In November 2005, the trial
court entered a judgment in favor of Old Dominion and Clark
and against Chappell; the trial court also entered a default
judgment in favor of Chappell and against Truss in the amount
of $60,000.1
1051093
Chappell introduced this evidence in an effort to
2
establish that the person who took delivery of the certified
mail was of "suitable age and discretion," as required by Rule
4(c)(1), Ala. R. Civ. P. For reasons discussed below, we
dispose of this case without finding it necessary to consider
the true identity of the Sam Edwards who signed for the
receipt or whether that person was of "suitable age and
discretion."
4
In
February
2006,
Truss
filed
a
motion
under
Rule 60(b)(4), Ala. R. Civ. P., asking that the default
judgment in favor of Chappell be set aside as void because, he
said, he had not been properly served with process. Although
Truss's motion was not supported by any evidentiary
submissions, following a March 17, 2006, hearing on that
motion, Truss submitted an affidavit of his mother, a copy of
the return receipt for the certified-mail letter, and a
specimen of Edwards's signature. The only evidence Chappell
presented in response to Truss's Rule 60(b)(4) motion was
marriage
records
that,
according
to
Chappell,
established
that
the Sam Edwards who signed the return receipt was Truss's
grandfather and not Truss's brother. On March 30, 2006, the
2
trial court entered an order denying Truss's Rule 60(b)(4)
motion.
1051093
5
On April 7, 2006, Truss filed a "motion to reconsider"
the denial of his Rule 60(b)(4) motion, together with his own
affidavit. On April 11, 2006, the trial court held an
evidentiary hearing at which it heard ore tenus testimony from
Truss. On April 20, 2006, the trial court entered an order
denying Truss's motion to reconsider the denial of the Rule
60(b) motion as to liability but granting the motion as to the
amount of damages. Truss filed a notice of appeal on May 5,
2006.
In December 2006, this Court dismissed Truss's appeal
insofar as it was an appeal from the April 20 order, citing
Ex parte Keith, 771 So. 2d 1018 (Ala. 1998). For purposes of
this appeal, therefore, we consider only the March 30 order
denying Truss's Rule 60(b)(4) motion and the evidence before
the trial court when it entered that order. We also limit our
review to a single issue briefed by the parties to this Court:
Whether Chappell proved that the Birmingham address to which
service of process was attempted was in February 2005 Truss's
1051093
Both parties treat Rule 4(c)(1) ("Upon Whom Process
3
Served -- Individual") as the applicable rule for purposes of
resolving this case. Assuming, without deciding, that they
are correct in this treatment, we discuss in the text how the
evidence before the trial court when it entered its March 30
order was insufficient to establish one of the requirements
for proper service under that rule.
We note that, if we were to apply Rule 4(i)(2)(C)
("Methods of Service -- Service By Certified Mail -- When
Effective"), our disposition of this case would be no
different. In particular, the record before the trial court
when it entered its March 30 order contained no evidence as to
whether Truss "actually receive[d] the summons and complaint
in time to avoid a default."
6
"dwelling house or usual place of abode" for purposes of
Rule 4(c)(1), Ala. R. Civ. P.
3
When service of process is contested, the plaintiff bears
the burden of establishing proper service of process. This
Court has held:
"'One of the requisites
of
personal
jurisdiction
over a defendant is "perfected service of process
giving notice to the defendant of the suit being
b r o u g h t . "
E x
p a r t e
V o l k s w a g e n w e r k
Aktiengesellschaft, 443 So. 2d 880, 884 (Ala. 1983).
"When the service of process on the defendant is
contested as being improper or invalid, the burden
of proof is on the plaintiff to prove that service
of process was performed correctly and legally."
Id. A judgment rendered against a defendant in the
absence of personal jurisdiction over that defendant
is void. Satterfield v. Winston Industries, Inc.,
553 So. 2d 61 (Ala. 1989).'"
1051093
In
Insurance
Management
&
Administration,
Inc.
v.
Palomar
4
Insurance Corp., 590 So. 2d 209, 213 (Ala. 1991), this Court
held that the clerk's notation of proper service creates a
presumption of proper service that can be rebutted only by
"clear and convincing evidence." In Northbrook Indemnity Co.
v. Westgate, Ltd., 769 So. 2d 890, 893 n.4 (Ala. 2000), this
Court
stated
that
the
Palomar
Insurance
presumption
established only that the "clerk mailed the process and the
person signing the certified-mail receipt received the
process." Palomar Insurance did not establish a presumption
as to whether the person signing the receipt was a proper
person to receive process or whether the place of service was
the defendant's "dwelling house or usual place of abode."
7
Bank of America Corp. v. Edwards, 881 So. 2d 403, 405 (Ala.
2003) (considering an appeal from a trial court's denial of a
Rule 60(b)(4) motion) (quoting Horizons 2000, Inc. v. Smith,
620 So. 2d 606, 607 (Ala. 1993)) (emphasis added). See also
4
Duncan v. S.N., 907 So. 2d 428 (Ala. 2005); Cain v. Cain, 892
So. 2d 952 (Ala. Civ. App. 2004).
Rule 4(c)(1), Ala. R. Civ. P., provides:
"(c) Upon Whom Process Served. Service of
process, except service by publication as provided
in Rule 4.3, shall be made as follows:
"(1) Individual. Upon an individual,
other than a minor or an incompetent
person, by serving the individual or by
leaving a copy of the summons and the
complaint at the individual's dwelling
house or usual place of abode with some
person of suitable age and discretion then
residing therein or by delivering a copy of
the summons and the complaint to an agent
1051093
8
authorized by appointment or by law to
receive service of process...."
The affidavit from Chappell's attorney that accompanied
Chappell's motion for entry of default against Truss states
only that Truss "was duly served with a copy of the summons,
together with a copy of [Chappell's] complaint, on February 5,
2005." This conclusory statement is not sufficient to
establish any of the alternatives prescribed by Rule 4(c)(1)
for serving an individual defendant, particularly in light of
the contrary evidence in the record. Compare Fisher v.
Amaraneni, 565 So. 2d 84, 88 (Ala. 1990) (conclusory
statements in an affidavit were not sufficient to establish
that the defendants were avoiding service); Kanazawa v.
Williams, 838 So. 2d 392, 395 (Ala. Civ. App. 2002) ("[T]he
conclusory assertions made by ... legal counsel in counsel's
affidavit that Kanazawa had attempted to avoid service are
insufficient as a matter of law.").
Specifically, although the evidence that was before the
trial court on March 30, 2006, shows that process was
delivered by certified mail to Edwards at Truss's mother's
house, there is no evidence indicating that the mother's house
1051093
There also is no evidence in the record specifically
5
showing that Edwards was Truss's agent, and Chappell does not
argue that Edwards was Truss's agent. See Rule 4(c)(1), Ala.
R. Civ. P.
9
was Truss's "dwelling house or usual place of abode." To the
5
contrary, the affidavit of Truss's mother states that she had
resided at that Birmingham address since 2000 and that, on
February 5, 2005, Truss "was not a resident [there]. He had
been called to service in Iraq and may have been still
overseas or stationed in North Carolina at that time."
(Emphasis added.) The parties argue at length concerning
whether and when Truss changed his "domicile" from Alabama to
North Carolina, but there was no evidence before the trial
court showing that Truss was, at the time of the alleged
service, or ever had been, a resident at the particular
address in Birmingham at which service was attempted in
February 2005.
Because
Chappell
failed
to
meet
her
burden
of
establishing proper service of process on Truss, we must
reverse the judgment of the trial court and remand the cause
for further proceedings.
REVERSED AND REMANDED.
1051093
10
See, Smith, Bolin, and Parker, JJ., concur.
Murdock, J., concurs specially.
Cobb, C.J., and Lyons, Woodall, and Stuart, JJ., dissent.
1051093
11
MURDOCK, Justice (concurring specially).
I write separately to respectfully disagree with views
expressed by Justice Woodall in his dissenting opinion.
First, I cannot conclude that Rule 4(i)(2)(C), Ala. R. Civ.
P., is the "obviously applicable rule" to the exclusion of
Rule 4(c), Ala. R. Civ. P. As indicated by its title, as well
as by its text, the focus of Rule 4(c) is "Upon Whom Process
[may be] Served." (Emphasis added.) For eight different
categories of defendants, it describes the individuals into
whose hands the summons and complaint are to be placed. It is
a rule of general application; it is not limited by its terms
to service of process by a process server. For an individual
defendant, it provides that the summons and complaint be
placed in the hands of (i) the defendant, (ii) a person of
suitable age and discretion residing in the defendant's
dwelling house or usual place of abode, "or" (iii) an agent
authorized to receive service of process on behalf of the
defendant.
Nor do I read the main opinion as holding "that an
individual may be served by certified mail received and signed
for by an agent only at the individual's 'dwelling house or
usual place of abode.'" ___ So. 2d at ___. Nothing in the
1051093
12
main opinion purports to discard the disjunctive portions of
Rule 4(c) providing for service of process directly upon the
individual defendant or upon "an agent authorized by
appointment or by law," neither of which by its terms requires
service to be accomplished at the defendant's dwelling house
or usual place of abode. Nor does the main opinion discard
the portion of Rule 4(i)(2)(C) explaining that, for purposes
of service by certified mail, a defendant's "agent" is a
person or entity specifically authorized to receive the
addressee's mail and to deliver that mail to the addressee.
The main opinion merely recognizes that, at the time the trial
court entered its March 30, 2006, order, there was no evidence
before it upon which it could have ruled in favor of Chappell
on the basis of any of these provisions; that none of these
provisions were put at issue in the trial court prior to the
entry of the March 30 order; and that none of these provisions
have been argued on appeal to this Court.
1051093
13
WOODALL, Justice (dissenting).
"It is the appellant's obligation to demonstrate error on
the part of the trial court and ... that includes providing
this Court with citations to pertinent cases, statutes, and
other authorities." FabArc Steel Supply, Inc. v. Composite
Constr. Sys., Inc., 914 So. 2d 344, 355 (Ala. 2005)(emphasis
added). I cannot conclude that Truss has fulfilled this
obligation when his arguments do not address the obviously
applicable rule, namely, Rule 4(i)(2)(C), Ala. R. Civ. P.
Today, this Court has unnecessarily and incorrectly held that
an individual defendant may be served by certified mail
received and signed for by an agent only at the individual's
"dwelling house or usual place of abode." This holding is
contrary to the plain language of Rule 4 and ignores the
reality that many people regularly receive their mail by agent
at
other
locations,
including
post
office
boxes.
Consequently, I respectfully dissent.
Cobb, C.J., and Lyons, J., concur. | August 22, 2008 |
8c6baff5-65d1-4c03-af69-3279576814ba | Ex parte Patricia Phillips. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Patricia Phillips v. Asplundh Tree Expert Company) | N/A | 1061595 | Alabama | Alabama Supreme Court | REL:09/05/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
____________________
1061595
____________________
Ex parte Patricia Phillips
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Patricia Phillips
v.
Asplundh Tree Expert Company)
(Blount Circuit Court, CV-05-164;
Court of Civil Appeals, 2060307)
BOLIN, Justice.
1061595
2
Writ quashed on the authority of Ex parte McInish, [Ms.
1060600, Sept. 5, 2008] ___ So. 2d ___ (Ala. 2008).
WRIT QUASHED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,
Parker, and Murdock, JJ., concur. | September 5, 2008 |
66f9cc64-7094-449c-ae57-37d0b3ad6ce9 | Rachel Sanders Cochran v. Gregory Donald Cochran | N/A | 1061668 | Alabama | Alabama Supreme Court | Rel: 09/26/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1061668
_________________________
Rachel Sanders Cochran
v.
Gregory Donald Cochran
Appeal from Montgomery Circuit Court
(DR-00-1365.04)
WOODALL, Justice.
Rachel Sanders Cochran appeals from orders of the
Montgomery Circuit Court modifying a previous award of custody
of the two minor children of her former marriage with Gregory
Donald Cochran. We reverse and remand.
1061668
2
I. Procedural Background
The couple was divorced on February 22, 2001. The
marriage produced two children, namely, W.G., born in 1995,
and S.S., born in 1998. The judgment of divorce incorporated
a settlement agreement executed by the couple, which vested
joint legal custody of the children in Mr. Cochran and Mrs.
Cochran, with physical custody in Mrs. Cochran. The award of
physical custody to Mrs. Cochran was subject to Mr. Cochran's
"reasonable visitation" with the children, pursuant to a
detailed visitation schedule. Specifically, the children were
to be with Mr. Cochran every other weekend from 4:00 p.m on
Friday to 4:00 p.m. on Sunday. They were also to spend "two
separate weeks" with him each summer during June, July, or
August, the weeks to be designated by mutual agreement. In
the absence of an agreement, the judgment provided that Mr.
Cochran was to have the children during the "second full week
of June and the third full week of July." It also provided
that Mr. Cochran would have the children on Father's Day; for
spring school holidays during even-numbered years; for Easter
during odd-numbered years; for designated hours on Christmas
and Thanksgiving; and "any other times mutually agreed upon by
1061668
3
the parties." (Emphasis added.)
Paragraph 8(d) of the settlement agreement provided:
"For the month following the month during which
the youngest minor child begins first grade (or K-5
if such K-5 program is a full day program) and is no
longer in need of childcare services, husband's
child support payments shall be reduced by $500.00
of the amount then required to be made as child
support."
The judgment gave Mrs. Cochran "final authority" in matters
involving the health, education, and welfare of the children.
Mr. Cochran subsequently defaulted on child support and
other payments required of him under the divorce judgment.
Consequently, Judge Richard H. Dorrough entered arrearage
judgments against him in September 2002 and in January 2003,
in the amounts of $18,752.60 and $2,142.70, respectively.
Meanwhile, from February 2001 until at least August 2004,
Mr. Cochran enjoyed access to the children in addition to the
visitation specifically allowed by the settlement agreement.
For example, he routinely kept the children for two hours
after school every Tuesday and Thursday (hereinafter referred
to as "the weekday visits"). By approximately August 2004,
however, Mrs. Cochran was no longer consenting to the weekday
visits, and, on April 28, 2005, Mr. Cochran filed a "petition
1061668
4
for modification of custody or alternatively petition for
modification of visitation." The petition sought an order
awarding
Mr.
Cochran
primary
physical
custody
or,
alternatively, at least one-half the custodial period. The
petition also sought a "formal parenting plan" awarding Mr.
Cochran the "final decision-making authority with regard to
the children's education, emotional, and physical health
issues, and extracurricular and sports activities."
On July 13, 2005, pursuant to a joint motion filed by the
Cochrans, the trial court appointed Dr. Karl Kirkland as a
"parenting coordinator" to assist the Cochrans in "making and
implementing decisions ... regarding visitation matters." On
August 30, 2005, Mr. Cochran filed a motion to dismiss his
petition for modification on the ground that the "best
interests of the ... children [would be] served by ... the
parties' continuing participation in co-parenting counseling
with Dr. Kirkland." The trial court granted that motion.
However, on September 26, 2006, Mr. Cochran filed a
second "petition for modification," alleging that there had
"been a material change in circumstances since the entry of
the previous award of custody and visitation." He sought a
1061668
5
reallocation of the "rights and responsibilities between the
parties with regard to the parties' minor children to include
more of a shared parenting time" and an order giving him "the
final decision-making authority with regard to the children's
education, emotional, and
physical
health
issues,
and
extracurricular and sports activities." On February 23, 2007,
Mr. Cochran filed a sworn amended petition for modification,
seeking an order awarding him "true joint custody of the
children and designat[ing him] as having final decision-making
authority with regard to the children's medical care, their
education, and their sports activities."
On August 16, 2007, after an ore tenus hearing, the trial
court entered an order (hereinafter referred to as the
"modification order") that, among other things, awarded the
parties joint legal and physical custody and gave Mr. Cochran
final decision-making authority as to the children's health
care, education, and extracurricular activities, based on a
finding of a material change in circumstances. The court's
rationale related in large part to three matters that,
according to Mr. Cochran, amounted to material changes in
circumstances since the entry of the divorce judgment. One
1061668
6
was that, from November 2004 to approximately November 2006,
W.G. had been treated with the antidepressant drug Prozac.
Although the treatment had ended by February 23, 2007, when
Mr. Cochran filed his amended petition, he asserted that the
course of treatment for W.G. evidenced, among other things,
bad judgment on Mrs. Cochran's part. Second, he asserted that
Mrs. Cochran had undermined his relationship with the children
by terminating the weekday visits. Third, Mr. Cochran alleged
that, because the children had grown older since the divorce,
they needed to spend more time with him.
In the modification order, the trial court stated, in
pertinent part:
"[Mr. Cochran] adamantly objected to learning
that his older son, W.G., was prescribed Prozac at
[Mrs. Cochran's] request. The circumstances of
[Mrs. Cochran's] obtaining that prescription for
Prozac for this child were murky at best. What was
clear was that the child was not taken to a
physician prior to the prescription being written.
Testimony appeared to indicate that [Mrs. Cochran]
simply called the child's doctor and requested a
prescription for Prozac to cure W.G.'s behavior
problems at school. [Mr. Cochran] objects to the
children being placed on medication prior to
exhausting
other
remedies
for
whatever
the
behavioral problem may be. He appeared gravely
concerned that such action by [Mrs. Cochran] would
occur again. [Mr. Cochran] further objects to [Mrs.
Cochran's] continued exclusion of him from major
decisions about the children. He believes that her
1061668
7
decision to unilaterally allow W.G. to take Prozac
and to continue that medication after the physician
recommended stopping the medication, is not in the
child's best interest and does not evidence sound
judgment.
"The
court
believes
circumstances
have
materially changed since the entry of the final
decree of divorce such that the two young children
would
benefit
from
increased
direct
paternal
guidance at this crucial stage in their lives. For
example, the older child, W.G., was suspended for
two days from school because he and other children
wrote an inappropriate message at school. When W.G.
further manifested his reluctance or refusal to
comply with behavioral requirements of a child of
his age, the result was the prescription for Prozac.
There was testimony from several witnesses that both
children are frequently belligerent toward [Mrs.
Cochran] and that, on occasion, she has called [Mr.
Cochran] to assist in controlling the behavior
problems. There was testimony that the children had
hit [Mrs. Cochran] on occasion and that they speak
to her in a disrespectful manner.
"[Mrs. Cochran's] testimony confirmed that she
believes that it is within her purview, as the
physical custodian for the children, to determine
whether
or
not
the
children
should
exercise
visitation with their father. At some point after
the divorce, the parties agreed that, in addition to
scheduled visitation, [Mr. Cochran] would have
visitation on Tuesdays and Thursdays each week.
However, [Mrs. Cochran] only allowed him to pick up
the children at about 4:00 p.m. and to return them
to her home between 6:00 p.m. and 6:30 p.m. She
unrealistically expected that the children would
complete their homework and eat supper during this
time. Upon returning the children to her home, [Mr.
Cochran] testified that he was often greeted by a
baby-sitter waiting to care for them because [Mrs.
Cochran] was 'out' for the evening.
1061668
8
"On or about August of 2004, [Mrs. Cochran]
unilaterally stopped the weekday visitation. [Mr.
Cochran] asserts that the cessation of visitation
was because he refused to reimburse her for a fence
she built at her home. [Mrs. Cochran] asserted that
she stopped the visitation because [Mr. Cochran] was
unable to fulfill the requirements of a father
helping
the
children
with
elementary
school
homework. Given the level of intelligence and post-
secondary
education
of
these
parties,
[Mrs.
Cochran's] rationale is nothing more than an attempt
to
disguise
interference with [Mr. Cochran's]
visitation
and,
therefore,
his
long-term
relationship with his children."
In a separate order issued the same day (hereinafter referred
to as the "co-parenting order"), the court vested in Dr.
Kirkland the ultimate authority to, among other things,
"chang[e]
education,
daycare,
and/or
extra-curricular
activities for the children," and to "determin[e] appropriate
medical, mental health and counseling treatment (including
psychotherapy, domestic violence counseling and batterers'
prevention programs, substance abuse treatment or counseling
and parenting or co-parenting classes for the parents and/or
the children."
In the modification order, the court also declared void
the arrearage judgments of 2002 and 2003. Specifically, as to
the arrearage judgments, the order stated:
"That pursuant to the parties' original 2000
1061668
At the time of her appeal, Mrs. Cochran was serving as
1
a staff attorney for a judge on the Court of Civil Appeals.
9
Settlement Agreement, [Mr. Cochran's] child support
obligation was to be decreased by $500.00 per month
for the month following the youngest child's
enrollment in first grade or K-5 (September 2004).
Said child support amount was never decreased and
[Mr. Cochran] has continued to pay $500.00 over and
above what was reflected by the agreement for some
36 months (September 2004-August 2007). Therefore,
[Mr. Cochran] is due to receive a credit of $18,000
against
any
remaining
amounts
owed
to
[Mrs.
Cochran]. It appears such a credit would more than
satisfy the 2002 and 2003 judgments for monies owed
to [Mrs. Cochran] for arrearages. (The court did
not add the amounts of [Mr. Cochran's] payments
since 2002 which were in excess of [Mr. Cochran's]
monthly child support amount. It appears that such
an undertaking would yield a large over-payment to
be credited to [Mr. Cochran].) Therefore, as of the
date of this order, all arrearages and judgments
against [Mr. Cochran] are deemed fully satisfied and
the judgments are void. Neither party shall owe the
other any monies other than what is specifically
addressed in this order and/or not specifically
modified herein."
(Emphasis added.)
Mrs. Cochran appealed, requesting that the modification
order and the co-parenting order be reversed in toto.
Thereafter, all five judges on the Court of Civil Appeals
recused themselves, and the appeal was transferred to this
1
Court, pursuant to Ala. Code 1975, § 12-3-15.
II. Standard of Review
1061668
10
The parties agree in this Court -- as they did in the
trial court -- that the applicable standard is the standard
set forth in Ex parte McLendon, 455 So. 2d 863 (Ala. 1984).
"In situations in which the parents have joint legal
custody, but a previous judicial determination has
granted primary physical custody to one parent, the
other parent, in order to obtain a change in
custody, must meet the burden set out in Ex parte
McLendon. See Scholl v. Parsons, 655 So. 2d 1060,
1062 (Ala. Civ. App. 1995). The burden set out in
McLendon requires the parent seeking a custody
change to demonstrate that a material change in
circumstances has occurred since the previous
judgment, that the child's best interests will be
materially promoted by a change of custody, and that
the benefits of the change will more than offset the
inherently disruptive effect resulting from the
change in custody. Ex parte McLendon, 455 So.2d at
866."
Dean v. Dean, [Ms. 2060809, January 18, 2008] ___ So. 2d ___,
___ (Ala. Civ. App. 2008).
"A material change of circumstances occurs when important
facts unknown at the time of the initial custody judgment
arise that impact the welfare of the child. A custodial
parent's change of environment that endangers the child's
physical
or
emotional
health,
safety,
or
well-being
constitutes a material change of circumstances." K.E.W. v.
T.W.E., [Ms. 2060187, July 20, 2007] ___ So. 2d ___, ___ (Ala.
Civ. App. 2007)(citation omitted). "The McLendon standard is
1061668
11
a 'rule of repose,' meant to minimize disruptive changes of
custody because this Court presumes that stability is
inherently more beneficial to a child than disruption." Ex
parte Cleghorn, [Ms. 1061014, February 8, 2008] ___ So. 2d
___, ___ (Ala. 2008).
"On appellate review of custody matters, [the
appellate] court is limited when the evidence was
presented ore tenus, and, in such circumstances, a
trial court's determination will not be disturbed
'absent an abuse of discretion or where it is shown
to be plainly and palpably wrong.' Alexander v.
Alexander, 625 So. 2d 433, 434 (Ala. Civ. App.
1993)(citing Benton v. Benton, [520 So. 2d 534 (Ala.
Civ. App. 1988)]). As the Alabama Supreme Court
highlighted in [Ex parte] Patronas, [693 So. 2d 473
(Ala. 1997)], '"[T]he trial court is in the better
position to consider all of the evidence, as well as
the many inferences that may be drawn from that
evidence, and to decide the issue of custody."'
Patronas, 693 So. 2d at 474 (quoting Ex parte
Bryowsky, 676 So. 2d 1322, 1326 (Ala. 1996)). Thus,
appellate review of a judgment modifying custody
when the evidence was presented ore tenus is limited
to determining whether there was sufficient evidence
to support the trial court's judgment. See
Patronas, 693 So. 2d at 475.
"'However, even under the ore tenus rule,
"[w]here the conclusion of the trial court is so
opposed to the weight of the evidence that the
variable factor of witness demeanor could not
reasonably substantiate it, then the conclusion is
clearly erroneous and must be reversed."' B.J.N. v.
P.D., 742 So. 2d 1270, 1274 (Ala. Civ. App. 1999)
(quoting Jacoby v. Bell, 370 So. 2d 278, 280 (Ala.
1979))."
1061668
12
Cheek v. Dyess, [Ms. 2060124, September 7, 2007] ___ So. 2d
___, ___ (Ala. Civ. App. 2007). Moreover, the ore tenus rule
does not apply to a trial court's legal conclusions. Ex parte
Cater, 772 So. 2d 1117, 1119 (Ala. 2000).
III. Discussion
Mrs. Cochran contends that the conclusions underpinning
the modification order and the co-parenting order are legally
and factually insufficient.
In
particular,
she challenges
the
modification order inasmuch as it modified the custody
arrangement set out in the judgment of divorce. She also
argues that the modification order "erroneously voided vested
arrearage and cost judgments previously awarded to [her] for
[Mr. Cochran's] failure to abide by the final judgment of
divorce." Mrs. Cochran's brief, at 67 (emphasis added).
A. Modification of the Custody Arrangement
As noted previously in this opinion, Mr. Cochran's
arguments for modification of the custody arrangement
principally
involved
the
prescription
for
Prozac
for
the
older
son and
Mrs.
Cochran's alleged
interference with
Mr. Cochran's
parental relationship with the children.
(1) The Prozac Prescription
1061668
13
The trial court concluded that Mrs. Cochran essentially
commandeered a prescription for Prozac as a treatment for W.G.
and that she did so precipitously. This conclusion is without
factual support. Mrs. Cochran's first recourse for treatment
of W.G. was Dr. JoAnne W. Ray, a licensed clinical
psychologist. Dr. Ray was W.G.'s longtime therapist, having
provided "therapeutic services" to W.G. soon after the
couple's divorce in 2001 for "symptoms of mood disturbance and
defiant behavior." At another time, Dr. Ray "performed [a]
kindergarten evaluation" of W.G. in connection with his
enrollment at a private school. In August 2004, Mrs. Cochran
had again engaged the services of Dr. Ray for treatment of
anxiety and moodiness that W.G. was experiencing. Indeed, Mr.
Cochran had, several months earlier, recommended to Mrs.
Cochran that she seek counseling for W.G. Both Mr. Cochran
and Mrs. Cochran participated in W.G.'s sessions with Dr. Ray.
Those counseling sessions continued until mid-November
2004. By that time, Dr. Ray had become dissatisfied with the
progress of the sessions, and, according to Mrs. Cochran, she
recommended that W.G. "be evaluated by a psychiatrist for
1061668
Mr. Cochran was not present when Dr. Ray made this
2
recommendation.
14
possible medication." She gave Mrs. Cochran the names of the
2
only two psychiatrists in Alabama whom she would recommend.
However, Mrs. Cochran was unable to locate one of those
doctors, and the other was not accepting any new patients.
Mrs. Cochran then discussed Dr. Ray's recommendation with Dr.
Catherine L. Wood, a pediatrician at Partners in Pediatrics
(hereinafter referred to as "the Partners"), who had been one
of the primary physicians for the children since birth. After
that discussion and throughout the next two years, Dr. Wood,
as well as her associate, Dr. Susan A. Brannon, another of the
children's
life-long
primary
physicians,
prescribed
Prozac
for
W.G. During that time, Mr. Cochran discussed the medication
with Dr. Wood and Dr. Brannon. According to Mr. Cochran, he
understood that the medication was to help the child "through
a dark mood."
The only basis for the trial court's statement that
Prozac was administered even "after the physician recommended
stopping the medication" (emphasis added) appears to be an
assertion in Mr. Cochran's amended petition to that effect
1061668
15
with reference to Dr. Wood. However, Mr. Cochran presented no
testimony from Dr. Wood or from any other physician concerning
W.G.'s taking of Prozac. Moreover, in his own trial
testimony, Mr. Cochran agreed that "Dr. Wood and Dr. Brannon
prescribed the Prozac until some point in late ... November
2006." (Emphasis added.) The medication ceased in November
2006. In other words, the trial testimony directly refuted
the allegation that Prozac was administered to W.G. after the
prescribing physician recommended that it be stopped.
Neither does the record support the trial court's
assertion that an incident at school precipitated the
prescription for Prozac. W.G. was suspended from classes for
two days because of an inappropriate message he had drawn.
However, according to Mr. Cochran's brief, the incident at
school occurred in December 2004. Mr. Cochran's brief, at 14.
It is clear from the record that the Prozac treatment began
the preceding month. Thus, although Mr. Cochran allegedly
disapproved of the course of treatment prescribed by the
Partners, it is apparent that the course of treatment was the
culmination
of
a
methodical,
regular,
and
responsible
process.
(2) The Weekday Visits
1061668
16
The trial court characterized Mrs. Cochran's decision to
terminate the weekday visits as evidence of an attempt to
undermine Mr. Cochran's authority with the children. In that
connection, the trial court stated: "[Mrs. Cochran's]
testimony confirmed that she believes that it is within her
purview, as the physical custodian for the children, to
determine whether or not the children should exercise
visitation with their father." Mrs. Cochran argues -- and we
agree -- that her "pro-active stance in allowing Tuesday-
Thursday
and
other
additional
visitation
was
[improperly]
used
as a weapon against her." Mrs. Cochran's brief, at 56.
Mrs. Cochran was not legally obligated to continue the
weekday
visits,
which
merely
supplemented,
by
mutual
agreement, the visitation schedule set out in the divorce
judgment. It is the policy of the courts to encourage
amicable agreements between the parties in custody matters,
because such agreements benefit all the parties, and the
children in particular. Ex parte Couch, 521 So. 2d 987, 990
(Ala. 1988). That policy would be frustrated if "agreed-upon
changes to a custody arrangement [could] be considered to be
relinquishment of a part[y's] rights under the previous
1061668
17
custody judgment." Watters v. Watters, 918 So. 2d 913, 917
(Ala. Civ. App. 2005).
At any rate, modification of custody is not the proper
remedy for a visitation dispute. Foster v. Carden, 515 So. 2d
1258, 1260 (Ala. Civ. App. 1987); Smith v. Smith, 464 So. 2d
97, 100 (Ala. Civ. App. 1984). "Rather, the appropriate
remedy in such a situation is to punish the custodial parent
for contempt, not to uproot the children." Lami v. Lami, 564
So. 2d 969, 970 (Ala. Civ. App. 1989).
Mr. Cochran relies on Fricks v. Wood, 807 So. 2d 561
(Ala. Civ. App. 2001), in which the Court of Civil Appeals
affirmed a judgment modifying custody in favor of the non-
custodial parent on the ground that "the mother had
deliberately obstructed the father's relationship with the
child." 807 So. 2d at 564. Mrs. Cochran contends that Fricks
is easily distinguishable from this case, and we agree. In
Fricks, the following factors were determinative:
"The mother admitted that on numerous occasions, she
had denied the father his scheduled visitation
because she was confused or had made a mistake in
interpreting the parties' divorce judgment; that she
had prevented the father from picking the child up
from his preschool program .... She admitted that
she had purposely omitted the father's name and his
contact information from all of the child's school
1061668
18
enrollment forms, and that she had listed her new
husband as the child's father."
807 So. 2d at 563-64 (emphasis added). Additionally, she "did
not even list the father as a person approved to pick up the
child from school." Id. at 562-63.
In this case, there are no allegations that Mrs. Cochran
has violated the visitation schedule set out in the divorce
judgment so that she would be subject to contempt proceedings.
There is no authority in the settlement agreement -- or
anywhere else of which this Court is aware -- for the
proposition that a parent who has primary physical custody may
not engage the services of someone other than the former
spouse as an occasional babysitter.
Mr. Cochran concedes that he has always had complete
access to the children's school and medical records. Unlike
the mother in Fricks, Mrs. Cochran made no attempt to hide the
identity of the children's father or to isolate Mr. Cochran
from the personnel at the children's school or from the school
itself. Also, according to Mr. Cochran, he "had a lot of
access to the boys along with the structured two-hour visits
on Tuesdays and Thursdays." (Emphasis added.) Mr. Cochran
coaches a number of sports activities in which his children
1061668
Letter of Dr. Kirkland to the trial court, dated
3
September 13, 2006.
19
regularly participate. In that connection, he often drives
the children to and from the sports events. At trial, he
stated: "I have still a lot of access to the boys. It's
access during their sporting events. ... They are practicing
football or practicing basketball during the time that I am
with them." (Emphasis added.) Fricks does not aid Mr.
Cochran.
An issue involved in the termination of the weekday
visits was homework. However, it was Mrs. Cochran's position
that the weekday visits were interfering with the children's
ability to complete their homework within, in the words of
Dr. Kirkland, "the rigorous homework and structured schedule
requirements associated with private school in Montgomery."3
There was never any allegation, as the trial court suggested,
that Mr. Cochran was incapable of doing elementary-school
homework. There was no evidence to support Mr. Cochran's
contention, or the trial court's conclusion, that in
terminating the weekday visits Mrs. Cochran was attempting to
undermine his relationship with the children.
Finally, the mere passage of time is not a basis for a
1061668
20
modification of custody. Nichols v. Nichols, 516 P.2d 732,
734 n.3 (Alaska 1973). "'The fact that the children have
grown older in and of itself is no sufficient change of
condition to warrant a change in custody.'" Engler v. Engler,
455 S.W.2d 36, 41 (Mo. Ct. App. 1970) (quoting Fordyce v.
Fordyce, 242 S.W.2d 307, 314 (Mo. Ct. App. 1951)). The
natural aging process is a "contingency to be normally
expected and ... is one which it is to be presumed the trial
court took into consideration in making the original decree in
the infancy of the children." Fordyce, 242 S.W.2d at 314.
Moreover, it is disingenuous to suggest that any alleged
"belligeren[ce]"
of
the
children
toward
Mrs.
Cochran
constitutes a ground for modifying the custody arrangement in
favor of Mr. Cochran. See Pullum v. Webb, 669 So. 2d 925, 927
(Ala. Civ. App. 1995) ("erosion of the relationship between
the [custodial parent] and the children is insufficient to
support a change in custody").
For these reasons, we conclude that Mr. Cochran has not
met his burden of showing "that a material change in
circumstances has occurred since the previous judgment."
Dean, ___ So. 2d at ___. Because as to custody the
1061668
21
modification order is without legal and factual support, it
cannot be sustained. As to the custody issue, it is,
therefore, reversed. Likewise, the co-parenting order, which
is a product of the erroneous modification order, is also
reversed.
B. Credit on the Arrearage Judgments
Mrs.
Cochran
next
contends
that
the
trial
court
misconstrued paragraph 8(d) of the settlement agreement by
erroneously concluding that the $500 child-care provision
terminated in September 2004, the month after S.S. began
first grade, and she argued that the trial court lacked the
power to void the arrearage judgments of 2002 and 2003.
Because we agree that the trial court was without jurisdiction
to void the arrearage judgments, we do not decide whether it
correctly identified the terminus ad quem of the child-care
provision.
"It is well settled that child support payments
become final judgments on the day they are due and
may be collected as any other judgment is collected;
and that payments that mature or become due before
the filing of a petition to modify are not
modifiable. See State ex rel. Howard v. Howard, 671
So. 2d 83 (Ala. Civ. App. 1995); Cunningham v.
Cunningham, 641 So. 2d 807 (Ala. Civ. App. 1994);
Glenn v. Glenn, 626 So. 2d 638 (Ala. Civ. App.
1993); Frasemer v. Frasemer, 578 So. 2d 1346 (Ala.
1061668
The dissent cites Kuhn v. Kuhn, 706 So. 2d 1275 (Ala.
4
Civ. App. 1997), and Rubrigi v. Rubrigi, 630 So. 2d 67 (Ala.
22
Civ. App. 1991); Barnes v. State ex rel. State of
Virginia, 558 So. 2d 948 (Ala. Civ. App. 1990);
Endress v. Jones, 534 So. 2d 307 (Ala. Civ. App.
1988). Furthermore, it is well settled that a trial
court has no power to forgive an accrued arrearage.
See, State ex rel. McDaniel v. Miller, 659 So. 2d
640 (Ala. Civ. App. 1995); Hardy v. Hardy, 600 So.
2d 1013 (Ala. Civ. App. 1992), cert. denied, Ex
parte Hardy, 600 So. 2d 1016 (Ala. 1992). Although
the trial court has the discretion to give the
obligated parent credit for money and gifts given to
the child or for amounts expended while the child
lived with the obligated parent or a third party, it
may not discharge child support payments once they
have matured and come due under the divorce
judgment."
Ex parte State ex rel. Lamon, 702 So. 2d 449, 450-51 (Ala.
1997) (emphasis added). See also McIlwain v. Atchison, 571
So. 2d 1181, 1182 (Ala. Civ. App. 1990) (distinguishing Keller
v. Keller, 370 So. 2d 306 (Ala. Civ. App. 1979), and holding
that "the trial court ... lacked the authority" to allow "the
father credit against a [1986] arrearage judgment for sums
paid by the father to support and maintain the child for
periods of time [from 1986 to 1989] when the child did not
reside with the mother"). Thus, to the extent that the
modification order deemed the arrearage judgments "fully
satisfied" and "void," the order is reversed.4
1061668
Civ. App. 1993), in support of Mr. Cochran's claim for a
credit against the arrearage. Those cases are inapposite,
however, because they do not involve -- as this one does -- an
order essentially reopening a prior arrearage judgment.
23
IV. Conclusion
In conclusion, the modification order is reversed in
toto, and the co-parenting order is likewise reversed. This
case is remanded for the entry of an order or orders
consistent with this opinion.
REVERSED AND REMANDED.
Lyons and Bolin, JJ., concur.
Parker, J., concurs in the result.
See and Murdock, JJ., concur in the judgment of reversal,
but dissent as to the rationale and the instructions on
remand.
Cobb, C.J., and Stuart, J., recuse themselves.
1061668
The settlement agreement provided that Mrs. Cochran
5
"shall consult with [Mr. Cochran] relative to major
decisions concerning the health, education and
welfare of the minor children. [Mr. Cochran] shall
have
equal
access
to
the
medical,
dental,
educational, health and welfare information, and
school
records
regarding
the
children.
[Mrs.
24
MURDOCK, Justice (concurring in the judgment of reversal, but
dissenting as to the rationale and the instructions on
remand).
Because of the presumptions attendant to the ore tenus
rule, as well as for other reasons hereinafter stated
(including my disagreement with certain statements of law in
the main opinion), I respectfully dissent from the conclusions
in the main opinion and the instructions on remand.
I. The Modification of Legal Custody
The 2001 divorce judgment awarded the parties "joint
legal custody" of their two sons. See Ala. Code 1975, § 30-3-
151(2)(defining joint legal custody). The 2001 divorce
judgment also gave Mrs. Cochran "final authority" concerning
"major decisions" for the children. See Ala. Code 1975, § 30-
3-153(a)(6)(within the context of a joint-legal-custody
arrangement, discussing the designation of one parent who will
have "primary authority and responsibility" for certain
decisions "if the parents are unable to agree").
5
1061668
Cochran]
shall
take
into
consideration
[Mr.
Cochran's] input into major decisions regarding the
children; however in the event of a dispute, [Mrs.
Cochran] shall have the final authority."
25
In his modification petition, Mr. Cochran specifically
requested that the trial court enter an order awarding him
final decision-making authority for purposes of legal custody,
in addition to asking the trial court to modify the prior
physical-custody award. The trial court's August 2007
modification
order
continued
the
joint-legal-custody
arrangement that had been put in place by the 2001 divorce
judgment. The only modification made by the trial court to
this joint-legal-custody arrangement was to award Mr. Cochran
the "final decision-making authority" for the children on
three
issues:
"medical/health
care,
education,
[and]
extra-curricular activities." The main opinion's reversal of
the trial court's order "in toto," results in the reversal of
this
modification
to
the
parties'
joint-legal-custody
arrangement.
I
disagree
with
reversal
of
the
trial
court's
modification of the joint-legal-custody arrangement for two
reasons. First, Mrs. Cochran's briefs to this Court contain
no argument that the trial court's modification of legal
1061668
26
custody was in error. "'An argument not made on appeal is
abandoned or waived.'" Muhammad v. Ford, [Ms. 1050550, Dec.
7, 2007] ___ So. 2d ___, ___ (Ala. 2007) (quoting Avis Rent A
Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1124 n. 8 (Ala.
2003)); see also Rule 28(a)(10), Ala. R. App. P.
Second, even if Mrs. Cochran had made such an argument to
this Court, the trial court's order retaining, but modifying,
the parties' joint legal custody of the children clearly is
due to be affirmed based on (a) the proper application of the
ore tenus rule to the evidence before the trial court and (b)
the application of the appropriate standard for modification
of legal custody. As to the evidence before the trial court
upon which the ore tenus presumption operates in support of
the modification, I refer the reader to the discussion in Part
II below. As to the standard against which that evidence is
to be measured, I note that the standard discussed in Ex parte
McLendon, 455 So. 2d 863 (Ala. 1984), "does not apply to the
modification of legal custody." West v. Rambo, 786 So. 2d
1138, 1141 (Ala. Civ. App. 2000). "'To modify legal custody,
the trial court need only find that the best interests of the
child are served by the modification.'" Id. (emphasis added)
1061668
Joint physical custody is especially favored in Alabama,
6
see Ala. Code 1975, § 30-3-150 et seq., though the joint-
custody statutes do not alter the applicable standard for
modifying custody. Ala. Code 1975, § 30-3-157.
27
(quoting Harris v. Harris, 775 So. 2d 213, 215 (Ala. Civ. App.
1999)).
Referring to the parties' respective briefs to this
Court, the main opinion states that "[t]he parties agree ...
that the applicable standard is the standard set forth in Ex
parte McLendon." ___ So. 2d at ___. As noted, however, the
argument of Mrs. Cochran, as the appellant in this Court, is
directed only to the issue of modification of physical
custody. Mr. Cochran's brief responds to this argument. As
the prevailing party in the trial court, he is under no
obligation to discuss the standard applicable to modification
of legal custody when that issue is not discussed in the
appellant's brief.
II. The Modification of Physical Custody
The trial court's order modified physical custody of the
children from being primary physical custody in Mrs. Cochran
to being an equal, joint physical custody in both parents.6
Pursuant to Ex parte McLendon, this order is due to be
affirmed if the record contains substantial evidence in
1061668
In her brief, Mrs. Cochran relies upon some custody-
7
modification cases that utilized an obvious-and-overwhelming-
necessity-for-a-change-of-custody standard. E.g., Ex parte
Martin, 961 So. 2d 83, 87 (Ala. 2006). Mrs. Cochran's
appellate brief was filed before this Court decided Ex parte
Cleghorn,[Ms. 1061014, Feb. 8, 2008] ___ So. 2d ___ (Ala.
2008), in which we rejected that standard because it "places
a nearly insurmountable burden on the party seeking a
modification of custody, and, in doing so, elevates stability
above the best interests of the child." Id. at ___
(overruling Ex parte Martin insofar as it suggested that a
party seeking a modification of custody "must prove an
overwhelming necessity for the change in custody"). See
Marusich v. Bright, 947 So. 2d 1068, 1073 (Ala. Civ. App.
2006)(Murdock, J., dissenting)("I cannot agree with the
suggestion in the main opinion that a parent seeking to modify
a prior custody order always bears a heavy burden of proof.
It is true that such a parent will always have the burden of
proving a material change of circumstances, without which the
prior custody order will have res judicata effect. ... Once
a material change of circumstances has been proven, however,
the extent to which a child's interests must be promoted by a
proposed change of custody (and thus the weight of the
petitioning parent's ultimate burden) will depend on the
degree of disruption that must be overcome before the court
can conclude that the change will be in the child's best
interests."); see also Lewis v. Lewis, 958 So. 2d 896, 900-01
(Ala. Civ. App. 2006); T.B. v. C.D.L., 910 So. 2d 794, 797
(Ala. Civ. App. 2005) (Murdock, J., concurring specially)
("While I agree that the latter prong of the McLendon standard
28
support of two distinct elements: (1) a material change in
circumstances has occurred during the six years since the
entry of the 2001 divorce judgment and (2) a change from
primary physical custody in Mrs. Cochran to the "joint
physical custody" specifically ordered by the trial court in
this case would "materially promote" the children's best
7
1061668
appears to be met in this case, that does not foreclose an
inquiry on remand into the degree of disruption that will
result from the proposed change of custody ... or a
recognition that the disruptive effect of the proposed
custodial change in this case likely will be less than it
otherwise would be because it is the custodial parent who is
moving out of state and the noncustodial parent who is
remaining in the same locale in which the child has
resided.").
29
interests. 455 So. 2d at 866.
On appeal, Mrs. Cochran argues that "the evidence in the
record simply does not support the conclusion that a material
change in circumstances has occurred or that a change of
custody would materially promote the children's best interests
and welfare." Specifically, Mrs. Cochran's argument focuses
on four points:
"The
trial
court
erroneously
found
that
the
following factors constituted a material change in
circumstances
and
warranted a modification in
custody in this case:
"(1) that [Mrs. Cochran] had attempted to
interfere
with
[Mr.
Cochran's]
relationship
with
the
children
by
stopping
the
Tuesday-Thursday visits in 2004 and by
allegedly making certain statements to the
parties' children;
"(2) that [Mrs. Cochran] had allowed the
children
to
spend
time
with
her
'boyfriends'
rather
than
with
[Mr.
Cochran];
"(3) that [Mrs. Cochran] had shown poor
1061668
30
judgment
in
giving
the
oldest
child
antidepressant medication in 2004; and
"(4) that the children were older now and,
therefore, their needs had changed."
This argument by Mrs. Cochran is a truncation of the bases
laid out by the trial court in its 19-page order. To some
degree, Mrs. Cochran's argument also reflects a presentation
of the evidence in the light most favorable to her, rather
than Mr. Cochran, as required by the presumption in favor of
the trial court's findings accorded by the ore tenus rule.
"'Neither the Court of Civil Appeals nor this
Court is allowed to reweigh the evidence in this
case. This case, like all disputed custody cases,
turns on the trial court's perception of the
evidence. The trial court is in the better position
to evaluate the credibility of the witnesses ... and
the trial court is in the better position to
consider all of the evidence, as well as the many
inferences that may be drawn from that evidence, and
to decide the issue of custody."
Ex parte Patronas, 693 So. 2d 473, 475 (Ala. 1997); see also
Transamerica Commercial Fin. Corp. v. AmSouth Bank, 608 So. 2d
375, 378 (Ala. 1992).
Also, because of substantial conflicts between the
testimony of Mrs. Cochran, the testimony of Mr. Cochran, and
the testimony of the children's paternal grandmother, this
Court must conclude that the trial court rejected some, if not
1061668
31
all, of Mrs. Cochran's testimony. "It is axiomatic that it is
the [fact-finder's] province to resolve conflicts in testimony
... and to judge the credibility of witnesses. ... [A fact-
finder] concluding that any witness was willfully not truthful
about one material aspect of his or her testimony is free to
disregard all or any part of the testimony." Flint Constr.
Co. v. Hall, 904 So. 2d 236, 250 (Ala. 2004) (citations
omitted).
The trial court's 19-page order contains numerous
findings of fact in addition to those upon which Mrs. Cochran
would focus our attention. The trial court's order states
that it was "[b]ased on [the court's findings], together with
a review of the records, the exhibits, the testimony and
demeanor of the parties." As Mr. Cochran's brief to this
Court correctly notes, Mrs. Cochran
"argues that the trial court's award of custody to
[Mr. Cochran] was in error based on four individual
arguments. ... Her arguments neglect the fact that
the trial court's rationale and findings took into
consideration a compilation of all of the issues and
facts presented, rather than merely looking at or
relying on one single issue or fact as it applies to
McLendon.
"The Court of Civil Appeals has formerly held
that a trial court should take into consideration
all relevant evidence when making a determination as
1061668
32
it relates to a change in custody to the non-
custodial parent. ...
"....
"... As in Steward v. Steward, 464 So. 2d 525
(Ala. Civ. App. 1985), while one factor alone may be
insufficient to justify a change of custody, when
all of the factors presented as evidence by the
party seeking the change are considered, the change
in custody is warranted. Steward, supra, at 527.
In all respects [Mr. Cochran] ... put before the
trial court ample evidence of ... numerous factors
which directly affected the children negatively and
ample evidence of how the change of custody to an
equal
sharing
of
the
children's
time
would
materially promote the children's best interests,
thereby meeting his burden."
(Emphasis added.)
In addition to addressing the four factual issues raised
by Mrs. Cochran, Mr. Cochran (1) argues generally that the
trial court's order was based on "a compilation of all of the
issues and facts presented," and (2) directs this Court to
other specific factual matters that support the trial court's
order. For example, Mr. Cochran notes in his brief to this
Court that the present case did not involve a "visitation
dispute alone," but that the visitation issue was simply one
part of the evidence supporting the conclusion that Mrs.
Cochran was attempting to damage his relationship with the
children; that the trial court received evidence "involving
1061668
For example, there was evidence that would have permitted
8
the trial court to conclude that Mrs. Cochran, who had a long-
term problem with migraine headaches that were, on occasion,
incapacitating, had transposed this medical condition onto the
children, when in fact they had no such headaches.
In part, Mr. Cochran testified as follows:
9
"A. ... A lot of times when I've asked for
additional time with the boys, she has put them in
the middle, asking to talk to them and let them make
the decision. That has physically upset them and
made them very -- [the older child], on one
occasion, became sick, threw up.
"Q. Tell the Court a little bit more about that.
You said that she put them in the middle. Were the
boys with you?
"A. Yes, they were with me. We called her because
33
[Mrs. Cochran's] own physical and mental health and the
correlation between such [matters] and the physical and
emotional well-being of the minor children"; that Mrs.
8
Cochran had been unable to move past her anger toward Mr.
Cochran in the six years since the entry of the divorce
judgment and repeatedly had inserted the children into her
conflicts with Mr. Cochran even after she had been informed
that doing so was detrimental to the children (the trial court
could have concluded that Mrs. Cochran engaged in such
behavior as recently as one week before the April 2007
hearing); and that the children had become verbally and
9
1061668
we were in the middle of an activity.
"Q. You and the boys called?
"A. Yes. I went to the other room, called her, asked
her if we could spend some additional time together.
She said that she wanted to talk to the boys and
discuss it with them before she agreed to that.
Once they got on the phone with her, their demeanor
changed because she asked them to decide which
parent they wanted to spend the afternoon with.
"Q. Is that kind of a catch-22 for you? You don't
put them on the phone, and she won't let you have
them; you do put them on the phone -- I mean, what
do you -- what do you do about that?
"A. Well, what I've done in -- shortly after that
is I quit asking because of the -- if I had to put
them in the middle, because it upset them and I
didn't think it was fair for them to be put in the
middle of those.
"Q. And you say on this particular occasion after
she talked to [the older child], he threw up?
"A. Yes. He became physically ill, went to the
bathroom and threw up."
Also, Mr. Cochran testified:
"Q. Now, in working with Karl Kirkland, did he give
you materials to read and supporting the things that
he was telling y'all about how to co-parent and
leave the kids out of adult decisions and all those
things?
"A. Absolutely. He gave us materials and counseled
us on the importance of leaving the boys out of the
-- being put in the middle of parental issues."
34
1061668
Dr. Kirkland testified:
"Q. Involving children in decisions about these
type issues, access, parental access, visitation
time, that's not good for kids is it?
"A. It's a general 'never do that.' From our point
of view, it's you just keep them out of that.
"Q. Then I don't need to ask you whether or not
it's appropriate to say, 'Well, let me ask the boys
if they want to spend more time with you.'
"A. No, that would not be a good thing to do."
Later in his testimony, Mr. Cochran stated:
"Q. Do you believe that good co-parenting means
reduce conflict and reduce confusion for the boys?
"A. Absolutely.
"Q. Do you believe that [Mrs. Cochran] confuses
these boys?
"A. Yes. I think by including them in these co-
parenting issues, it creates confusion on them and
-- and disrupts them and anxiety.
"Q. And that level of anxiety has been pretty darn
high at times, hasn't it?
"A. Yes, ma'am. It has been very high."
I also note that on cross-examination Mrs. Cochran testified:
"Q. Do you also -- have you thought about if you
tell a child, 'Well, I'll be here by myself,' or,
'Don't you want to stay with me,' or, 'I've got
35
1061668
other plans,' that you're putting the child in the
middle of a loyalty issue?
"A. [Counsel for Mr. Cochran], I love my children
very much.
"Q. Do you understand that?
"A. If I had ever done that, that would be a
problem. Yes."
The
paternal
grandmother,
who
had
witnessed
the
10
children's belligerence toward Mrs. Cochran, testified that
her "biggest concern is that I see a path the boys are taking
that it really scares me to think about when they're
teenagers, what they're going to be like as far as their
behavior, having respect for people and that kind of thing."
Although the paternal grandmother stated that the children
were "well-rounded," she added that "they have problems, and
I think they're headed for more problems."
36
physically belligerent with Mrs. Cochran and she was unable to
properly cope with their belligerence.
10
Responding to Mrs. Cochran's line of argument, the main
opinion states (1) that "the mere passage of time is not a
basis for a modification of custody," ___ So. 2d at ___, (2)
that "it is disingenuous to suggest that any alleged
'belligeren[ce]'
of
the
children
toward
Mrs.
Cochran
constitutes a ground for modifying the custody arrangement in
favor of Mr. Cochran," ___ So. 2d at ___, and (3) that Mrs.
Cochran's satisfaction of her legal obligations as to Mr.
Cochran's visitation immunizes her from a contention that her
1061668
Mrs. Cochran cites Blackston v. Blackston, 607 So. 2d
11
1262 (Ala. Civ. App. 1991), in her argument as to the
visitation issue. In Blackston "[t]he father offered little
legal evidence to meet his burden of showing a material change
of circumstances, or that the award of joint custody would
materially promote the best interests and welfare of the
children." 607 So. 2d at 1264. In that context, the Court of
Civil Appeals stated: "'[V]isitation disputes alone are
insufficient to necessitate a change in custody.' Ward v.
Rodenbaugh, 509 So. 2d 910, 911 (Ala. Civ. App. 1987)
(citation omitted)." 607 So. 2d at 1264 (emphasis added).
The fuller context for the quote from Ward, however, is as
follows:
"The
mother
is
correct
in
stating
that
visitation
disputes alone are insufficient to
necessitate a change in custody. Pons v. Phillips,
406 So. 2d 932 (Ala. Civ. App. 1981). However, the
record in this case can support a conclusion of more
than a mere visitation problem. ... [T]he facts
support the court's conclusion that the mother's
conduct
has
affected
and
would
continue
to
detrimentally affect the relationship between the
father and the child. The record also supports the
court's conclusion that circumstances have changed
since the original divorce decree.
"The record shows that the father has remarried
and is employed. He has never failed to submit to
the jurisdiction of the court in this case or to
comply with its orders. He has expressed his desire
to see that his son obtains whatever help he needs
in dealing with any psychological problems he might
have. In short, the court had evidence upon which
to determine that a change of custody would
materially promote the child's best interests.
37
decisions as to additional visitation reflect the pursuit of
a personal agenda rather than the pursuit of the children's
best interests.
The main opinion concludes:
11
1061668
There was evidence upon which the court could
determine that the disruptive effect of a change of
custody would be more than overcome by the material
promotion of the child's best interests that would
be afforded by the stability and protection of the
father's home."
509 So. 2d at 911-12 (emphasis added). I believe the record
in the present case likewise demonstrates that more than a
mere visitation dispute is at issue.
In particular, I note that the trial judge apparently
12
read Dr. Kirkland's deposition after the trial. It appears
that the trial court attributed some of the testimony from
witnesses at trial to Dr. Kirkland and that it used the
testimony of some witnesses at trial to draw inferences as to
Dr. Kirkland's deposition testimony. As to the latter, I do
not believe all such inferences would be inappropriate.
38
"Mr. Cochran has not met his burden of showing 'that
a material change in circumstances has occurred
since the previous judgment.' Dean [v. Dean, [Ms.
2060809, January 18, 2008] ___ So. 2d ___, ___ (Ala.
Civ. App. 2008)]. Because as to custody the
modification order is without legal and factual
support, it cannot be sustained."
___ So. 2d at ___.
I respectfully disagree with the three propositions of
law described above, or at least with the manner in which they
are utilized in this case. Also, though I agree that some of
the specific findings of fact made by the trial court are
erroneous or are attributed to the wrong witness,
other
12
significant findings of fact made by the trial court in
1061668
The August 2007 order itself indicates that the trial
13
court was not describing all evidence that might support its
findings. Further, even if some of the trial court's findings
are erroneous, the proper instruction on remand would be for
the trial court to review the record and to enter a judgment
without taking into account any erroneous findings; that
judgment might or might not be in favor of modification.
I also note that, even assuming modification of physical
custody, per se, is not appropriate, there is ample evidence
in the record to support a decision to award Mr. Cochran
substantial additional scheduled visitation and to take such
award into account in determining the appropriate amount of
child support due Mrs. Cochran. See Rule 32(A)(1)(a), Ala. R.
Jud. Admin. In response to a question by the trial court
regarding what visitation should be awarded if Mrs. Cochran
retained physical custody, Mr. Cochran requested a 60/40
division of time, as Dr. Kirkland had recommended. Also, Mrs.
Cochran testified that she did not oppose more time for Mr.
Cochran than was allowed under the divorce judgment. In fact,
she did not object to the parties having custody on alternate
weeks during the summer of 2007 as part of the trial court's
interim custody order.
39
support of its order are amply supported by the record. Based
on the record before us, and particularly the testimony of Mr.
Cochran, the paternal grandmother, and Dr. Kirkland, I do not
believe this Court can conclude (1) that, as a matter of law,
Mr. Cochran has failed to meet his burden of showing a
material change of circumstances or (2) that, as a matter of
law, the specific change of physical custody ordered by the
trial court –- i.e., equal, joint physical custody –- would
not materially promote the children's best interests.13
1061668
40
First, as to the consideration of the children's ages,
when the 2001 divorce judgment was entered, the parties' sons
were approximately three years old and five years old. Mr.
Cochran testified that the reason he agreed during the divorce
proceedings for Mrs. Cochran to have physical custody of the
children was because "[t]hey were young [and] ... [w]e felt it
was in their best interest to minimize the effects of the
divorce on them by continuing to let them live the majority of
the time in her house." He stated that he believed Mrs.
Cochran was "very capable" of taking care of the children "at
that time."
When the trial court entered the August 2007 order, the
children were approximately 9 years old and 11 and 1/2 years
old. Mrs. Cochran argues that
"[n]ormal development of a child does not, per
se, justify a custody modification. In Ex parte
Devine, 398 So. 2d 686 (Ala. 1981), this Court
abolished the 'tender years' doctrine which created
a legal presumption that young children should be
placed in their mother's custody. The age of
children is now simply one of many factors to
consider. Sockwell v. Sockwell, 822 So. 2d 1219
(Ala. Civ. App. 2001). The trial court's bold
assumption, that because the children are older,
they should spend half their time with [Mr.
Cochran],
echoes
the
stereotypical
thinking
condemned by this Court in Devine. The age of the
children provides no basis for the trial court's
1061668
It is well settled that the age of a child is "a very
14
important consideration" in making an initial custody award.
Ex parte Devine, 398 So. 2d 686, 696 (Ala. 1981); see also
Sockwell v. Sockwell, 822 So. 2d 1219 (Ala. Civ. App. 2001),
cited in the above-quoted argument of Mrs. Cochran. I am
perplexed as to why the age of a child is "a very important
consideration" in making an initial custody award, Ex parte
Devine, 398 So. 2d at 696, yet, as a matter of law, a
substantial change in that very important consideration cannot
constitute a change in circumstances that might warrant a
trial court's considering whether, in light of age and other
factors, a child's best interests might be materially promoted
by a change in custody. Compare Fordyce v. Fordyce, 242
S.W.2d 307, 314 (Mo. Ct. App. 1951) ("The fact that the
children have grown older in and of itself is no sufficient
change of condition to warrant a change in custody."
(emphasis added)), with Bernstein v. Bernstein, 80 Cal. App.
2d 921, 923, 183 P.2d 43, 44 (Dist. Ct. App. 1947)("In her
opening brief plaintiff contended that there was no evidence
of any change of circumstances between the entry of the
decrees and the time of application for modification.
However, on the argument, plaintiff abandoned this point, as
well she might, because the evidence showed that there was a
decided change of circumstances. First, the child had grown
older. At the time of the interlocutory decree the child was
four months old; at the time of the final decree sixteen
months old; at the time of the hearing it was practically two
years old. It is now three years old. The child had changed
from an infant requiring close attention and constant care to
a youngster requiring less immediate attention and entitled to
start getting acquainted with its father.").
41
change of custody."
(Emphasis added.
)
14
In response to Mrs. Cochran's argument, the main opinion
states that "the mere passage of time is not a basis for a
modification of custody." ___ So. 2d at ___. It cites dicta
1061668
42
from an Alaska case, Nichols v. Nichols, 516 P.2d 732, 734 n.3
(Alaska 1973), in support of this statement. The fuller
context for the dicta in Nichols, however, is as follows:
"The passage of time as it affects the relationships of
parties may bear relevance to a change of custody. Mere
passage of time, however, is not of itself a change in
circumstances sufficient to support modification." Id.
(emphasis added).
I respectfully submit that the trial transcript and the
trial court's order clearly demonstrate that the trial court's
modification of custody was not based solely, or even
primarily, on "the mere passage of time." Mr. Cochran did not
argue, and the trial court did not conclude, that the bare
fact that the children's ages had changed, with no other
evidence as to their development or their relationships with
Mrs. Cochran and Mr. Cochran, would support a modification of
custody in the present case. To the contrary, the full record
in this case and the trial court's extensive findings of fact
reflect that the children's having grown older -- and having
grown and changed in their relationships with both Mr. Cochran
and Mrs. Cochran -- supported the conclusion that a material
1061668
In addition to all the other evidence of record
15
pertinent to this issue, I note that, when asked whether
"[w]hen boys get older, they have different needs," Dr.
Kirkland responded, "They do."
I also note that the main opinion quotes from the Court
of Civil Appeals' opinion in K.E.W. v. T.W.E., [Ms. 2060187,
July 20, 2007] ___ So. 2d ___, ___ (Ala. Civ. App. 2007), for
the
following
proposition:
"'A
material
change
of
circumstances occurs when important facts unknown at the time
of the initial custody judgment arise that impact the welfare
of the child.'" ___ So. 2d at ___ (emphasis added). To the
extent this passage can be read as suggesting that a material
change of circumstances cannot be based on facts that were
known at the time of an initial custody judgment (i.e., the
fact that the boys would grow older and experience a resulting
change in their needs), but which actually occur at some
subsequent point in time, I disagree with it. Our courts have
held that custody determinations must be based upon current
facts and not on speculation as to what will happen in the
future. E.g., Hovater v. Hovater, 577 So. 2d 461, 463 (Ala.
Civ. App. 1990) ("We find ... the custodial reversionary
clause in this instance to be of no effect because it is
premised on a mere speculation of what the best interests of
the children may be at a future date." (emphasis added)); see
also S.M. v. State Dep't of Human Res., 598 So. 2d 975, 978
(Ala. Civ. App. 1992) ("After reviewing all of the evidence in
a custody case, the trial court weighs certain factors[,] ...
considers all the evidence[,] and decides which party would
better promote the child's best interests at this time."
(emphasis added)); Thompson v. Thompson, 431 So. 2d 1310, 1310
(Ala. Civ. App. 1983) ("The present rule is simply that
custody of a young child is awarded according to the best
interest of the child as disclosed by the particular facts in
each case. ... [T]here was competent evidence upon which the
trial court could validly determine that, at the present time,
it is to the best interest of the child that she be in her
father's general care, custody and control."). It would be
inconsistent with this latter line of authority to say that
developments that the trial court "knows" will occur in the
43
change in circumstances had occurred in the present case.
15
1061668
future, but that have not occurred at the time of an initial
custody judgment, cannot be taken into consideration in the
future when they finally do occur. If this were so, then
given the above-cited cases, such developments could not find
their way into either the initial or the subsequent custody
determination.
44
Also, even assuming, as Mrs. Cochran argues, that the
"[n]ormal development of a child does not, per se, justify a
custody modification," this argument begs the question whether
the evidence before the trial court reflected the "[n]ormal
development of a child" between the entry of the 2001 divorce
judgment and the trial in the present case. I cannot conclude
that, as a matter of law, the trial court could not determine
as a factual matter that "normal" development is not reflected
in a young child who is described as "confused and struggling"
on occasion, who has been placed on the antidepressant Prozac
because of depression, who has been suspended from school for
inappropriate behavior, and who, along with his sibling (i.e.,
the other child),
"ha[s] been belligerent toward [Mrs. Cochran]. As
far as –- she would come to pick them up at [the
paternal grandmother's] house. They would hit on
her. They would, especially [the younger child],
ram her in the stomach with his head, and he would
yell and scream that he hated her. And this has
been going on for years, not just one or two
1061668
When
questioned
whether
the
child
was
"being
belligerent
16
at the time of the divorce or now," the paternal grandmother
responded, "I'm talking about after the divorce, and this has
gradually gotten this way." She noted that the children were
not "kidding" when the belligerent incidents occurred. She
further stated that "at first it was verbal, and then it
became physical." When questioned whether the belligerence
had "gotten better or worse over the years," the paternal
grandmother responded "it really hasn't gotten a lot better,
but [the older child] is quieter about things now. He just
goes off and is kind of quiet. [The younger child] is still
very vocal."
I note that Mrs. Cochran denied that the above-described
belligerent incidents occurred at all. This is just one
example of a direct conflict between the testimony of Mrs.
Cochran and that of other witnesses, which directly brought
her credibility into question at trial. (The record contains
other examples as well.) Based on the trial transcript and
the language used in the trial court's judgment in favor of
Mr. Cochran, it is clear to me that the trial court rejected
Mrs. Cochran's testimony and accepted that of some of the
other witnesses, i.e., particularly that of Mr. Cochran and
the paternal grandmother. I may not have made that same
determination had I been the trial judge and had I been able
to observe the witnesses at trial. Nonetheless, in light of
the well settled principles (1) "that it is the [fact-
finder's] province to resolve conflicts in testimony ... and
to judge the credibility of witnesses" and (2) that a fact-
finder "concluding that any witness was willfully not truthful
about one material aspect of his or her testimony is free to
disregard all or any part of the testimony," Flint Constr.
Co., 904 So. 2d at 250, I cannot see my way clear to reach the
result the main opinion reaches in the present case.
45
occasions."16
Second, as to the main opinion's conclusion that "it is
1061668
46
disingenuous to suggest that any alleged 'belligeren[ce]' of
the children toward Mrs. Cochran constitutes a ground for
modifying the custody arrangement in favor of Mr. Cochran,"
___ So. 2d at ___, I do not find it disingenuous for the trial
court to make a factual determination that a child's welfare
might be at issue when the children hit Mrs. Cochran and
scream at her in the presence of another person, much less in
the privacy of the home, yet apparently do not exhibit that
same behavior when they are in Mr. Cochran's custody. More
importantly, could the trial court not decide as a factual
matter that this behavior reflects a change in circumstances
where there is no evidence indicating that the children
behaved in that manner before the parties' divorce, but there
is evidence indicating that the behavior first occurred and
gradually grew worse after the divorce? Are we to assume that
the trial court "presumed" such behavior would occur when it
awarded Mrs. Cochran custody? Does such behavior not reflect
a material change as to a parent's ability to meet a child's
"emotional, social, moral, ... and educational needs," or as
to "the respective home environments offered by the parties,"
or as to "the interpersonal relationship between [the] child
1061668
This should not be read as support for the proposition
17
that such behavior alone would be sufficient to warrant a
change of custody in a particular case. At issue here is only
the basis for the main opinion's decision, i.e., whether the
noncustodial parent has offered sufficient evidence of a
material change of circumstances since the entry of the
previous custody judgment.
47
and each parent"? Ex parte Devine, 398 So. 2d 686, 696-97
(Ala. 1981). I believe the trial court reasonably could have
found that it does.
17
Also, I note that the main opinion cites Pullum v. Webb,
669 So. 2d 925, 927 (Ala. Civ. App. 1995), in support of its
conclusion that the children's belligerence toward Mrs.
Cochran cannot, as a matter of law, constitute a ground for
modifying custody. In this respect, I believe the main
opinion places too much reliance on Pullum.
In Pullum, the Court of Civil Appeals reversed the trial
court's judgment modifying custody because the trial court had
applied the "best interest" standard rather than the standard
announced in Ex parte McLendon. Pullum, 669 So. 2d at 927.
Ultimately, the court remanded the case, stating: "[T]he
trial court should consider all relevant evidence to determine
whether the father has met his burden by showing that the
change of custody would materially promote the children's best
1061668
48
interest and that the benefits of the change would outweigh
the disruptive effect of a change of custody." Id. It was in
the context of a discussion of the proper application of the
second prong of the McLendon standard ("material promotion")
that the Pullum court stated:
"In the present case, the trial court's order
modifying custody stated, in pertinent part, that
'the standard required and which should be applied
is the best interest of the children. The [trial]
court does not find that it would be in the best
interest of the two children, ages 17 and 14[,] to
be forced to live with their mother with the
relationship being so strained.' Thus, it appears
that the trial court erroneously applied the 'best
interest' standard. Additionally, a mere change in
circumstances
such
as
the
erosion
of
the
relationship between the mother and the children is
insufficient to support a change in custody. King
[v. King, 636 So. 2d 1249,] 1253 [(Ala. Civ. App.
1994)]; Clayton v. Clayton, 598 So. 2d 929 (Ala.
Civ. App. 1992). The failure of the trial court to
apply the appropriate standard is reversible error.
Clayton, supra, at 931."
669 So. 2d at 927. The two cases cited by the Pullum court in
this discussion, King v. King, 636 So. 2d 1249 (Ala. Civ. App.
1994), and Clayton v. Clayton, 598 So. 2d 929 (Ala. Civ. App.
1992), also focus upon the second prong of the McLendon
standard.
Further, whether a particular change is material is a
fact-dependent inquiry. The facts at issue in Pullum were
1061668
49
testimony from the noncustodial parent and the teenage
daughter that "the [teenage] children did not get along with
their mother anymore, and that both children preferred to live
with their father." 669 So. 2d at 927. Such generic facts
involving a teenager are a far cry from the specific evidence
involving the minor children that was before the trial court
in the present case.
Based on the foregoing, I conclude that Pullum provides
little if any support for the view expressed in the main
opinion.
Third, the main opinion states:
"Mrs. Cochran argues -- and we agree -- that her
'pro-active stance in allowing Tuesday-Thursday and
other additional visitation was [improperly] used as
a weapon against her.' ...
"Mrs. Cochran was not legally obligated to
continue
the
weekday
visits,
which
merely
supplemented, by mutual agreement, the visitation
schedule set out in the divorce judgment. It is the
policy
of
the
courts
to
encourage
amicable
agreements between the parties in custody matters,
because such agreements benefit all the parties, and
the children in particular. Ex parte Couch, 521 So.
2d 987, 990 (Ala. 1988). That policy would be
frustrated if 'agreed-upon changes to a custody
arrangement
[could]
be
considered
to
be
relinquishment of a part[y's] rights under the
previous custody judgment.' Watters v. Watters, 918
So. 2d 913, 917 (Ala. Civ. App. 2005).
1061668
50
"At any rate, modification of custody is not the
proper remedy for a visitation dispute."
___ So. 2d at ___ (emphasis omitted).
The parties' settlement agreement, which was incorporated
into
the
2001
divorce
judgment,
awarded
Mr.
Cochran
"reasonable visitation rights ... as set forth [there]in,"
including: visitation every other weekend, visitation for two
weeks during the summer, some visitation on holidays and the
children's birthdays, and "[a]ny other times mutually agreed
upon by the parties." In the last regard, the parties'
agreement provided that "[t]he visitation schedule set forth
herein may be changed by mutual agreement of the parties. The
parties agree to work together and cooperate for the benefit
of the children on any necessary changes to the visitation
schedule."
In April 2005, Mr. Cochran filed a petition requesting a
modification of custody or, in the alternative, a modification
of his visitation rights. In its August 2007 order, the trial
court noted:
"The parties voluntarily agreed to dismiss the
[father's April 2005] petition in favor of working
with Dr. Karl Kirkland toward a resolution of the
issues. Those issues concerned [Mrs. Cochran's]
control/limitation of [Mr. Cochran's] visitation
1061668
51
dates
and
times
and
her
unwillingness
or
inflexibility in allowing [Mr. Cochran] reasonable
visitation with the two children. The parties
engaged in counseling sessions with Dr. Kirkland for
a period of about six months. Ultimately, there was
little, if any, resolution to the visitation
issues."
The trial court also stated:
"On or about August of 2004, [Mrs. Cochran]
unilaterally stopped the weekday visitation. [Mr.
Cochran] asserts that the cessation of visitation
was because he refused to reimburse her for a fence
she built at her home. [Mrs. Cochran] asserted that
she stopped the visitation because [Mr. Cochran] was
unable to fulfill the requirements of a father
helping
the
children
with
elementary
school
homework. Given the level of intelligence and
postsecondary education of these parties, [Mrs.
Cochran's] rationale is nothing more than an attempt
to
disguise
interference with [Mr. Cochran's]
visitation
and,
therefore,
his
long-term
relationship with his children."
Mrs. Cochran testified that Mr. Cochran failed to ensure
that the children completed their homework on certain
occasions during his Tuesday-Thursday visitation and that she
stopped that visitation for that reason. The trial court
rejected her testimony in that regard. Further, based on Mr.
Cochran's testimony as to the cessation of his additional
visitation and other testimony from Mrs. Cochran that the
trial court could have considered in drawing an inference as
to the true reasons for Mrs. Cochran's actions, I cannot
1061668
52
conclude that the record does not provide an adequate basis,
in the context of the ore tenus rule, for the trial court's
finding that Mrs. Cochran's "rationale is nothing more than an
attempt to disguise interference with the [Mr. Cochran's]
visitation and, therefore, his long-term relationship with his
children."
Also, I note that, in part, the main opinion couches its
criticism of the trial court's judgment in terms of what Mrs.
Cochran's legal obligations were as to Mr. Cochran's
visitation and in terms of concern about cooperation between
parents as to custodial and visitation issues being used to
argue that there has been a relinquishment of the primary
custodian's rights. I share the latter general concern. Mr.
Cochran, however, did not argue that Mrs. Cochran relinquished
anything when she allowed him additional visitation with the
children, and the trial court did not make a finding to that
effect. Instead, Mr. Cochran's argument, and the trial
court's findings, concern the harmful motivations and effects
of Mrs. Cochran's stances on visitation.
I respectfully submit that to the extent Mrs. Cochran was
initially awarded primary physical custody of her children
1061668
In addition to the other evidence in the record,
18
including the fact that Mr. Cochran lived in close proximity
to Mrs. Cochran, Dr. Kirkland testified that he did not
believe a "reallocation of time" between the parties would be
detrimental to the children and that he believed it would be
beneficial to the children.
53
based on the assumption that she would put her personal
interests aside and pursue the best interest of the children
in regard to their visitation with Mr. Cochran, a pattern of
behavior resulting from a desire to harm Mr. Cochran's
relationship with the children could at least contribute to a
finding of a material change of circumstances. Also, such
behavior, along with other factors, might contribute to a
totality of circumstances sufficient to satisfy the second
prong of McLendon.
18
In Lewis v. Lewis, 958 So. 2d 896 (Ala. Civ. App. 2006),
the Court of Civil Appeals addressed a case similar in many
respects to the one now before us:
"The trial court found that there had been a
material change in circumstances since the entry of
the March 2002 modification order and 'that the
benefits accruing to the children from such a change
[of custody] would outweigh any disruptive effect.'
We have reviewed the record and conclude that there
is
evidence
to
support
the
trial
court's
determination. Although the parties have not
experienced what could be considered major life
changes -- e.g., changing jobs, moving to a
different town, remarriage, health problems, etc. --
1061668
I do not intend hereby to express any view as to what
19
ruling I would have made had I been the trial judge in this
54
since the divorce, the trial court could have
concluded that the cumulative effect of the events
and behaviors that the trial court found to have
occurred was sufficient to constitute a material
change in circumstances and to warrant a change of
custody. ...
"....
"Finally, the trial court reasonably could have
concluded that the disruptive effect of a change of
custody was not great. From the time of the divorce
until the trial court's judgment, the father and the
mother lived in the same community. The father
exercised his visitation rights and was actively
involved in the children's lives. Further, the
children will continue to attend the same school and
participate in the same activities regardless of
which parent has primary custody."
958 So. 2d at 900-01.
I believe the totality of the circumstances, viewed in
light most favorable to Mr. Cochran, as it must be under the
presumptions attendant to the ore tenus rule, provides
sufficient support for the trial court's conclusion that the
benefit to the children of the shift in this case to joint
physical custody between two parents who have both been
integrally involved in their children's lives would more than
offset the disruption that these children would experience
from such a change.
19
1061668
case.
55
III. Mr. Cochran's Credit Against
His Child-Support Arrearage
The trial court stated as follows in allowing Mr. Cochran
a credit against the child-support-arrearage judgments:
"[Mr. Cochran] pays child support in the amount
of $2,973.21 each month. However, based on
Paragraph [8(d)] of the Final Decree of Divorce,
[Mr. Cochran's] child support should have been
reduced to $2,400 in September of 2004. [Mrs.
Cochran] argues semantics in asserting that the $500
difference should remain as child support. The
Court believes that the Final Decree unambiguously
states that the additional $500 was to end when
[S.S.] (the younger child) entered the first grade
in 2004. Child support should have been reduced to
$2,400 at that time, and it was not. [Mr. Cochran]
is due a credit for all monies overpaid since
September 2004."
(Emphasis added.) As discussed in the main opinion, the
judgment continues:
"That pursuant to the parties' original 2000
Settlement Agreement, [Mr. Cochran's] child support
obligation was to be decreased by $500.00 per month
for the month following the youngest child's
enrollment in first grade or K-5 (September 2004).
Said child support amount was never decreased and
[Mr. Cochran] has continued to pay $500.00 over and
above what was reflected by the agreement for some
36 months (September 2004-August 2007). Therefore,
[Mr. Cochran] is due to receive a credit of $18,000
against
any
remaining
amounts
owed
to
[Mrs.
Cochran]. It appears such a credit would more than
satisfy the 2002 and 2003 judgments for monies owed
to [Mrs. Cochran] for arrearages. (The Court did
1061668
The child-support award was also subject to other
20
adjustments (thus, the $2,973.21 figure discussed by the trial
court), such as a cost-of-living adjustment, which are not at
issue in the present case.
56
not add the amounts of [Mr. Cochran's] payments
since 2002 which were in excess of [Mr. Cochran's]
monthly child support amount. It appears that such
an undertaking would yield a large over-payment to
be credited to [Mr. Cochran].) Therefore, as of the
date of this Order, all arrearages and judgments
against [Mr. Cochran] are deemed fully satisfied and
the judgments are void. Neither party shall owe the
other any monies other than what is specifically
addressed in this Order and/or not specifically
modified herein."
(Emphasis added.)
Paragraph 8(d) of the parties' settlement agreement, as
incorporated into the 2001 divorce judgment, provided that
"[f]or the month following the month during
which the youngest minor child begins first grade
(or K-5 if such K-5 program is a full day program)
and is no longer in need of childcare services, [Mr.
Cochran's] child support payments shall be reduced
by $500.00 of the amount then required to be made as
child support."20
As to whether the trial court erred by awarding Mr.
Cochran a credit against the arrearage judgments, Mrs. Cochran
first argues that the trial court erred in providing relief
"never requested by [Mr. Cochran's] pleadings" and in deciding
"issues which were not tried by implied or express consent."
Second, Mrs. Cochran argues that the trial court erred when it
1061668
57
awarded Mr. Cochran a credit because, she argues, the language
of paragraph 8(d) was unambiguous and the parties' younger
child continued to need "child care" after he entered the
first grade. Third, Mrs. Cochran argues that even if a credit
were due Mr. Cochran, the amount of his alleged overpayment
does not exceed the arrearage judgments, particularly after
taking into account postjudgment interest.
The main opinion pretermits discussion of these three
issues by first taking up the issue whether the trial court
had "jurisdiction" to "void" the arrearage judgments. I
disagree with the main opinion's interpretation of the trial
court's order.
"'Separate provisions of judgments, like provisions
of contracts, should be construed in pari materia,
and the entire judgment -- all provisions considered
-- should be read as a whole in the light of all the
circumstances, as well as of the conduct of the
parties. ... Further, if the terms of a judgment
are not ambiguous, they should be given their usual
and ordinary meaning.'"
Ex parte Snider, 929 So. 2d 447, 456-57 (Ala. 2005) (quoting
Moore v. Graham, 590 So. 2d 293, 295 (Ala. Civ. App. 1991)).
Further,
"'where
there
is
a
choice
between
a valid
construction and an invalid construction the court
has a duty to accept the construction that will
1061668
58
uphold, rather than destroy, the contract.' Homes
of Legend, Inc. v. McCollough, 776 So. 2d 741, 746
(Ala. 2000). See also Clark v. Board of Dental
Exam'rs of Georgia, 240 Ga. 289, 294, 240 S.E.2d
250, 254 (1977) ('"When a judgment is susceptible of
two meanings, one of which would render it illegal
and the other proper, that construction will, if
reasonably possible, be given it that would render
it legal."' (quoting Byrd v. Goodman, 195 Ga. 621,
25 S.E.2d 34 (1943)))."
929 So. 2d at 457.
Construing the trial court's order to have used the term
"void" in a literal sense would, as the main opinion
concludes, make the trial court's order erroneous. In fact,
it would make the trial court's order nonsensical. If the
trial court meant that the arrearage judgments were void so
that they had no legal effect whatsoever, it would have been
illogical for that court also to have talked in terms of
awarding a "credit" against those judgments. The issue
whether Mr. Cochran had paid a sufficient amount to "satisfy
the judgments" would not even need to be discussed. I
therefore believe we should look to see if the trial court's
order is reasonably susceptible to an interpretation that is
reasonable, that would allow us to "uphold that judgment
rather than destroy" it, and that would construe the various
phrases at issue "in pari materia" and "as a whole in the
1061668
59
light of all the circumstances." Ex parte Snider, 929 So. 2d
at 457.
An entirely reasonable interpretation of the trial
court's order readily presents itself. Assuming (as the trial
court apparently believed) that the overpayments made by Mr.
Cochran exceeded the amount of the arrearage judgments, those
payments operated to deprive the arrearage judgments of any
continuing, enforceable, legal effect. It is in that sense
that I believe the trial court used (or misused) the term
"void." This understanding is especially bolstered by the
above-stated rule requiring provisions of a judgment to be
read "in pari materia" and by the fact that the trial court,
in the very same sentence, explained that it considered the
judgments to have been "satisfied" by the excess child-support
payments made by Mr. Cochran between September 2004 and
September 2007.
With that said, whether to credit overpayments against an
existing arrearage is a matter of equity. Numerous
jurisdictions allow such credits, particularly where doing so
will not result in an undue hardship to the children and/or to
1061668
Mrs. Cochran does not argue that, assuming a credit is
21
otherwise permissible, the trial court erred or exceeded its
discretion by awarding a credit under the circumstances.
60
the parent to whom the payments are due to be made.
E.g.,
21
Young
v.
Williams,
583
P.2d
201,
203
(Alaska
1978)
(recognizing that the general rule is that "'special
considerations of an equitable nature may justify a court in
crediting [voluntary payments made to the children] on his
[arrearage] indebtedness to the plaintiff when that can be
done without injustice to the plaintiff wife.'" (emphasis
added) (quoting Briggs v. Briggs, 178 Or. 193, 204, 165 P.2d
772, 777 (1946))); see also In re Marriage of Rogers, 283 Ill.
App.3d 719, 721-22, 670 N.E.2d 1154, 1156 (1996) ("The
rationale supporting the rule [against allowing a credit] is
that such a credit would amount to a unilateral modification
of the dissolution judgment and could result in the
deprivation of future support benefits. ... Exceptions to the
rule have been recognized where the equities of the
circumstances so demand and where allowing the credit will not
work a hardship." (emphasis added)); Schafer v. Schafer, 95
Wash. 2d 78, 81, 621 P.2d 721, 723 (1980) ("Special
circumstances of an equitable nature ... may justify a court
1061668
61
crediting payments against the accrued support owing when that
can be done without injustice to the one to whom the divorce
decree directed the installments be paid."(emphasis added)).
Mr. Cochran argues that, under circumstances such as
those presented here, a trial court has discretion in
determining a proper credit to be allowed against a child-
support arrearage. He also argues that the trial court's
determination of such a credit "will not be reversed absent an
abuse of discretion by the trial court." In both respects, he
cites this Court to Kuhn v. Kuhn, 706 So. 2d 1275 (Ala. Civ.
App. 1997). As the Court of Civil Appeals correctly observed
in Kuhn, "[a] trial court, in determining an arrearage, may
allow a credit to the obligated parent upon proof that
monetary support was actually provided." 706 So. 2d at 1278.
As the Kuhn court also correctly observed,
"'[a] trial court's determination of the amount of
a child support arrearage, including the grant or
refusal of a credit, is largely a discretionary
matter, and the trial court's ruling in that regard
will not be reversed on appeal absent an abuse of
discretion.' Vlahos v. Ware, 690 So. 2d 407, 410
(Ala. Civ. App. 1997)."
706 So. 2d at 1278; see also, e.g., Rubrigi v. Rubrigi, 630
So. 2d 67, 68 (Ala. Civ. App. 1993) ("The trial court may ...
1061668
The main opinion's statement that Kuhn and Rubrigi are
22
inapposite reflects a fundamental misunderstanding of the
nature of past-due child-support obligations and arrearage
judgments. "[C]hild support payments become final judgments
when due and thereafter cannot be changed." Cox v. Dunn, 669
So. 2d 963, 966 (Ala. Civ. App. 1995); see, e.g., Ex parte
State ex rel. Daw, 786 So. 2d 1134, 1137 (Ala. 2000)("[T]he
character of the [child support] obligation changes once it
becomes delinquent, because the fact of the delinquency causes
the party to whom the debt is owed to become a judgment
creditor, a creditor who may then pursue the typical means of
collection
that
are
available
to
the
holder
of
any
judgment."). A child-support-arrearage judgment simply
reflects a trial court's adding up existing final judgments
for past-due child support (plus any interest that might be
due). Yet, as Kuhn and Rubrigi note, the awarding of a credit
against such final judgments, i.e., past-due child-support
obligations, in an arrearage proceeding is within the
discretion of the trial court and is not considered an
impermissible modification of the already existing final
judgments, i.e., the past-due child-support obligations.
There is no logical, legal distinction between awarding a
credit for payments made against a final judgment that is
reflected by a past-due child-support obligation itself and
awarding a credit for payments made against a final judgment
that states the total amount of past-due child-support
amounts, plus interest, owed. Kuhn and Rubrigi are thus not
inapposite; they establish the very point at issue: equity
authorizes a trial court to award a credit against (but not
make a modification of) a final judgment in appropriate
circumstances.
62
allow credit against an arrearage for expenditures related to
support by the obligated parent ... or for amounts expended
while the child actually lived with the obligated parent or a
third party, and the obligated parent is able to prove that he
made contributions to the child's support.").22
1061668
63
In the present case, the evidence supports the conclusion
that Mr. Cochran made overpayments of child support with the
specific intention of satisfying an existing child-support
arrearage. He made the overpayments directly to the person to
whom he owed the original payments in the first place, i.e.,
Mrs. Cochran. Further, the evidence would support the
conclusion that Mrs. Cochran accepted these payments with
knowledge
that
Mr.
Cochran
claimed
they
represented
overpayments that were to be used to satisfy the arrearage
judgments. In such an instance, I do not believe this Court
can say that Mrs. Cochran is prejudiced by the allowance of a
credit or that in allowing a credit the trial court abused its
discretion.
As for the arguments made by Mrs. Cochran, she first
contends that Mr. Cochran did not include the credit issue in
his pleadings and that she did not expressly or implicitly
consent to the trial of the credit issue. It is true that Mr.
Cochran did not include the credit issue in his pleadings.
After reviewing the record, however (see trial transcript, pp.
99-105, 205-08), I cannot conclude that the trial court erred
when it implicitly determined that the parties had tried the
1061668
64
credit issue by implied consent.
As for Mrs. Cochran's argument that paragraph 8(d) of the
settlement agreement is unambiguous and, thus, that the
admission of extrinsic evidence as to the meaning of the
paragraph was inappropriate, I again note that paragraph 8(d)
states:
"For the month following the month during which
the youngest minor child begins first grade (or K-5
if such K-5 program is a full day program) and is no
longer
in
need
of
childcare
services,
[Mr.
Cochran's] child support payments shall be reduced
by $500.00 of the amount then required to be made as
child support."
The trial court concluded that paragraph 8(d) was in fact
unambiguous, but that, in contrast to Mrs. Cochran's view of
it, paragraph 8(d) called for the reduction in Mr. Cochran's
child-support obligation when the younger child entered first
grade in September 2004. I agree with the trial court.
When a contract contains unambiguous language, "and but
one reasonable construction of the contract is possible, it
must be expounded as made, for the courts are not at liberty
to make new contracts for the parties." Life & Cas. Ins. Co.
of Tennessee v. Bottoms, 225 Ala. 382, 383, 143 So. 574, 575
(1932). A straightforward reading of paragraph 8(d),
1061668
65
particularly when taking into account the K-5 parenthetical,
leads one to the conclusion that the "childcare services"
under discussion are those that would be displaced by a normal
"full-day" school program, i.e., either first grade or a full-
day K-5 program. To read paragraph 8(d) otherwise tends to
render any discussion of school attendance in conjunction with
child-care services meaningless; all that would matter is
whether the child was in need of child-care services, not
whether he was attending school. Likewise, such a reading
would render meaningless any need to distinguish between K-5
as a part-day program and K-5 as a full-day program, as the
parenthetical clearly does.
Even
assuming
the
foregoing
understanding
of
paragraph 8(d) is not the only reasonable construction of that
paragraph that is possible, however, it certainly is a
reasonable construction of that paragraph. If that is so,
then, at a minimum, paragraph 8(d) is ambiguous and was
properly the subject of explanation by parol evidence admitted
at trial. The trial court's conclusion as to the meaning of
paragraph 8(d) is supported by that evidence. For example,
Mr. Cochran testified that the younger child was in "full-time
1061668
Mrs. Cochran sent an e-mail to Mr. Cochran on
23
February 27, 2004, stating:
"Our agreement specifically states that the $500 is
to be discontinued the month after [the younger
child] begins 1 grade (or K-5 if K-5 is a full day
st
program). K-5 at [the school he will be attending]
is not a full day program, it is a 1/2 day program.
[The younger child] has required childcare since he
began K-5. I enrolled him in [a particular program]
in order to meet his childcare needs. Thus,
according to the agreement, the triggering event for
discontinuing the $500 childcare amount will occur
when [the younger child] starts 1st grade and your
September 2004 payment will be reduced by $500."
Thereafter, Mr. Cochran informed Mrs. Cochran that he would
continue to pay the $500 after the younger child began first
grade, but that it should be applied against his child-support
arrearage. As noted above, after consulting her attorney,
Mrs. Cochran's opinion as to the nature of the parties'
agreement concerning the $500 reduction changed. Mr. Cochran
testified that Mrs. Cochran took the position that the $500
66
daycare" when the parties divorced and that "at the time ...
we were paying my mother [$]500 a month to keep [the younger
child]. And that's why that provision was in there, that the
onus would be on me to continue to pay that amount until he
started school." Mr. Cochran further stated, "[p]rior to [the
younger child] beginning the first grade, I questioned the
$500, when it would come off; and [Mrs. Cochran] sent an
e-mail stating that once he started the first grade, it would
come off."
23
1061668
"would not roll off; and so I contended that it
should by her earlier e-mail and our agreement
through that whole process. So -- but in order to
stay in good faith and work through the child issues
that we had, the visitation issues, I continued to
pay it. And I've paid it ever since."
(Emphasis added.) Mr. Cochran continued, "I would plead with
the Court to apply that towards the arrearage because, again,
I was paying it in good faith to keep us on the right road on
the boys' visitation schedules."
67
I cannot conclude that the trial court erred as to the
meaning of paragraph 8(d) of the parties' settlement
agreement.
Finally, I agree with Mrs. Cochran's argument that Mr.
Cochran's credit, if due, was insufficient to satisfy the
amounts of arrearage, plus interest, due under the judgments
at issue. Mr. Cochran submitted an exhibit (exhibit 16)
showing the amounts that he had allegedly paid to Mrs. Cochran
as contrasted with the amount of child support he allegedly
owed. The exhibit reflects payments between September 2004
and February 2007, and it reflects a total amount to be
applied toward Mr. Cochran's arrearage of $16,071.35. As of
February 2007, Mr. Cochran apparently was making overpayments
of $578.72. Nothing in the record discloses, however, what
specific amounts Mr. Cochran paid to Mrs. Cochran after
1061668
68
February 2007, or, more particularly, between the April 2007
and May 2007 hearings and the entry of the August 2007 order.
Likewise, though Mr. Cochran testified that he had made a
lump-sum payment toward the arrearages, there is no evidence
concerning the amount of the lump-sum payment or what other
amounts Mr. Cochran might have paid towards the arrearages, if
any. It is clear, however, that the arrearage judgments
totaled
$18,752.60
and
$2,142.70,
respectively,
plus
interest.
Thus, the record does not support the trial court's conclusion
that Mr. Cochran's credit exceeded the value of the amounts at
issue that were due to Mrs. Cochran.
IV. Conclusion
Although I agree that there should be a judgment of
reversal in this case, I do not agree with the conclusions
upon
which
the
main
opinion
bases
such
a
judgment.
Concomitantly, I do not agree with the instructions on remand
provided by the main opinion. I would remand the cause for
the trial court (1) to enter an order as to custody and
visitation based on the factual findings that are supported by
the record, and (2) to calculate the specific amount of the
overpayments made by Mr. Cochran, based on the record as it
1061668
69
presently stands, and to enter a judgment awarding Mr. Cochran
a credit in that amount.
See, J., concurs. | September 26, 2008 |
b0a5c987-0d2e-4293-ad06-c3b7b38d55cb | Michael Banker v. Circuit City Stores, Inc. | N/A | 1070424 | Alabama | Alabama Supreme Court | REL: 09/05/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1070424
_________________________
Michael Banker
v.
Circuit City Stores, Inc.
Appeal from Mobile Circuit Court
(CV-01-1084)
LYONS, Justice.
Michael Banker appeals pursuant to § 6-5-642, Ala. Code
1975, from the order of the Mobile Circuit Court denying his
motion for nationwide class certification in an action pending
1070424
2
in that court against Circuit City Stores, Inc. We affirm the
order denying class certification.
I. Facts and Procedural History
On August 28, 2000, Banker purchased a Sony CPDE400
computer monitor from a Circuit City store in Mobile for
$549.99. Packed with the monitor was a document evidencing a
one-year manufacturer's warranty from Sony. The same day
Banker also purchased from Circuit City a three-year service
plan for the monitor for $139.99; this service plan, known as
the "Computer Support Plus" ("the CSP"), is provided by
Circuit City on a variety of computer products.
Banker's sales receipt from his purchases on August 28,
2000, stated that "this sales receipt and the accompanying
terms and conditions constitute your SERVICE CONTRACT." The
"accompanying terms and conditions" are found in a brochure
known as the service guide for the CSP, which Circuit City
instructed its sales representatives to give to customers who
purchase the CSP. The service guide states that the CSP
"provide[s] for the repair or replacement (if non-repairable)
of the Products(s) resulting from failures that occur during
normal usage." The service guide also states:
1070424
3
"Coverage on your Product(s) begins at 12:01
a.m. on the effective date specified by your sales
receipt or, if your Product has a manufacturer's
warranty of more than one year, this Contract
coverage will begin one year following your purchase
date. However, damage to your Products(s) caused by
power surge will be covered under this Contract from
the Product purchase date. Coverage ends at 11:59
p.m. on the ending date specified by your sales
receipt."
Thus, the CSP that Banker purchased provided coverage for
repairs for damage caused by power surges for four years
beginning with the date of purchase, and it provided coverage
for repairs resulting for normal usage of the product for
three years after the expiration of the manufacturer's
warranty or 12 months of ownership, whichever is less.
Banker's sales receipt from Circuit City dated August 28,
2000, states that "Computer Support Plus for the SONY CPDE400
starts 08/28/03 and expires 08/28/04." However, the service
guide for the CSP states: "If there is a conflict between the
terms of this Contract and information communicated either
orally or in writing by one or more of our employees or
agents, this Contract shall control." In a deposition Banker
testified that he does not recall whether he received the
service guide for the CSP or any document that explained the
coverage of the CSP other than his sales receipt.
1070424
4
Banker experienced problems with the monitor during his
first year of ownership, and he contacted Circuit City on or
about January 24, 2001, to request a replacement monitor.
Banker believed that the CSP was a three-year warranty on the
monitor that began with the date of purchase and that the CSP
required Circuit City to replace the monitor at any instance
of a malfunction during his first three years of ownership.
In a deposition Banker testified that he believed the CSP
constituted a three-year warranty because "the salesperson
told [him]." Banker stated that the salesperson for Circuit
City stated that "instead of having a one-year warranty, [he
could] get a three-year warranty for this price. [Banker]
said okay"; he further stated that his understanding was that
"instead of having a one-year warranty, [he] would have a
three-year warranty."
When Banker first requested a replacement monitor from
Circuit City, Circuit City referred Banker to Sony because the
monitor was then under the manufacturer's warranty from Sony.
Banker contacted Sony, and Sony representatives informed
Banker that the monitor was covered by a three-year
manufacturer's warranty. Circuit City asserts that it
1070424
5
believed that the monitor came with a one-year manufacturer's
warranty because Sony had placed a one-year warranty in the
box containing the monitor. In a deposition a designated
representative for Circuit City stated that "the fact that the
product had a three-year warranty was the mistake, not the
fact that it had a three year and we thought it had a one-year
warranty."
After Banker spoke with a Sony representative he again
requested a replacement monitor from Circuit City. Circuit
City asserts that, although, it says, it was not obligated to
replace the monitor, it subsequently gave Banker a replacement
monitor. Banker accepted the new monitor from Circuit City.
Banker then requested that Circuit City refund the $139.99 he
had paid for the CSP. Circuit City refused to refund the
purchase price of the CSP because, it said, Banker had already
received the full benefit of the CSP by receiving a new
monitor from Circuit City.
Banker then sued Circuit City in the Mobile Circuit Court
on March 30, 2001, alleging fraud and fraudulent suppression.
However, Banker amended his complaint six times and ultimately
dismissed the claims of fraud and fraudulent suppression and
1070424
6
asserted claims against Circuit City alleging breach of
contract, unjust enrichment, and violation of the Magnuson-
Moss Warranty-Federal Trade Commission Improvement Act, 15
U.S.C. § 2301 et seq. ("the MMWA"). Banker contends that the
CSP violates the disclosure requirements of the MMWA because,
he says, important terms and conditions of the CSP are not
fully, clearly, and conspicuously disclosed in simple and
readily understood language. Banker also contends that
Circuit City violated the MMWA because, he says, "[n]either
the Circuit City sales receipt nor its CSP brochure
sufficiently disclosed the fact that the Circuit City extended
warranty would primarily run concurrently and be duplicative
of the manufacturer's warranty." Banker also claimed that
Circuit City's failure to disclose the term, duration, and
scope of the CSP constituted a breach of contract. Lastly,
Banker claimed that Circuit City was unjustly enriched by the
amount he paid for the CSP because, he said, the "payments
were for the provision of three years extended service
contract coverage and Circuit City provided less than three
years of extended warranty coverage."
1070424
7
Banker moved for the trial court to certify him as the
representative for a nationwide class of individuals who had
purchased the CSP from Circuit City in connection with the
purchase of any computer product. Banker defined the proposed
class as follows:
"All persons who from January 1, 2000 to the
date this action is certified purchased a consumer
product and Circuit City's service plan, [Computer]
Support Plus (hereinafter 'CSP') where either:
"• The dates of coverage of the CSP
either create an overlap in coverage with
the manufacturer's warranty, OR
"• The dates of coverage of the CSP
create
gaps
in
coverage
between
the
warranty and the service plan, OR
"• The dates and scope of coverage of
the CSP are not fully, clearly, and
conspicuously disclosed to the consumer and
its terms and conditions are not presented
in simple and readily understood language."
On November 16, 2007, the trial court entered an order
denying Banker's motion for class certification and stating
the following reasons for its denial: Banker had failed to
show that his claims are typical of his proposed class; Banker
was not an adequate class representative and his proposed
class is not ascertainable; and Banker had not met his burden
under Rule 23(b)(3), Ala. R. Civ. P., of showing that common
1070424
8
questions
of
fact
predominate over the individualized
questions that must be addressed for each class member.
II. Standard of Review
It is a well-settled principle that "'[t]his Court
applies an abuse-of-discretion standard of review to a trial
court's class-certification order, but we will review de novo
the question whether the trial court applied the correct legal
standard in reaching its decision to certify a class.'" Alfa
Life Ins. Corp. v. Hughes, 861 So. 2d 1088, 1094 (Ala.
2003)(quoting Smart Prof'l Photocopy Corp. v. Childers-Sims,
850 So. 2d 1245, 1248 (Ala. 2002)). In Atlanta Casualty Co.
v. Russell, 798 So. 2d 664, 666 (Ala. 2001), this Court
further stated:
"The trial court is endowed with a substantial
amount of discretion in determining whether to
certify a class, and [an appellate court] will not
disturb its determinations without a showing of
abuse. Ex parte Holland, 692 So. 2d 811, 814 (Ala.
1997). In determining whether certification [or the
refusal to certify] was proper, we consider whether
the party seeking certification produced substantial
evidence satisfying the requirements of Rule 23(a),
Ala. R. Civ. P."
III. Analysis
In order to maintain an action as a class action, a
plaintiff must establish the prerequisites of Rule 23(a), Ala.
1070424
9
R. Civ. P., as well as one of the requirements set forth in
Rule 23(b). Alfa Life Ins. Corp. v. Hughes, 861 So. 2d 1088,
1094 (Ala. 2003). Rule 23(a), "Prerequisites to a Class
Action," provides:
"One or more members of a class may sue or be sued
as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all
members is impracticable, (2) there are questions of
law or fact common to the class, (3) the claims or
defenses of the representative parties are typical
of the claims or defenses of the class, and (4) the
representative parties will fairly and adequately
protect the interests of the class."
Banker asserts that he has met the prerequisites of Rule 23(a)
and that class certification in this cause is proper under
Rule 23(b)(2) or Rule 23(b)(3). Rule 23(b) provides:
"(b) Class Actions Maintainable. An action may
be maintained as a class action if the prerequisites
of subdivision (a) are satisfied, and in addition:
"....
"(2) the party opposing the class has acted or
refused to act on grounds generally applicable to
the
class,
thereby
making
appropriate
final
injunctive
relief
or
corresponding
declaratory
relief with respect to the class as a whole; or
"(3) the court finds that the questions of law
or fact common to the members of the class
predominate
over any questions affecting only
individual members, and that a class action is
superior to other available methods for the fair and
efficient adjudication of the controversy. The
1070424
10
matters pertinent to the findings include: (A) the
interest of members of the class in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation
concerning the controversy already commenced by or
against members of the class; (C) the desirability
or undesirability of concentrating the litigation of
the claims in the particular forum; (D) the
difficulties likely to be encountered in the
management of a class action."
Section 6-5-641(e), Ala. Code 1975, provides, in pertinent
part: "When deciding whether a requested class is to be
certified, the court shall determine, by employing a rigorous
analysis,
if
the
party
or
parties
requesting
class
certification have proved its or their entitlement to class
certification under Ala. R. Civ. P. 23."
Banker
contends
that
he
has
satisfied
all
the
requirements of Rule 23 for entitlement to class certification
of his claims. Because this issue is dispositive of this
appeal, we will first address whether Banker demonstrated that
his claims of a violation of the MMWA, breach of contract, and
unjust enrichment are typical of the claims of the putative
class. See Rule 23(a)(3), Ala. R. Civ. P. This Court has
held that "'"[t]he essence of the typicality requirement is
that the relationship between the injury to the class
representatives and the conduct affecting the entire class of
1070424
11
plaintiffs must be sufficient for the court to properly
attribute a collective nature to the challenged conduct."'"
Avis Rent A Car Sys., Inc., v. Heilman, 876 So. 2d 1111, 1117
(Ala. 2003) (quoting Atlanta Cas. Co. v. Russell, 798 So. 2d
at 668, quoting in turn Warehouse Home Furnishing Distribs.,
Inc. v. Whitson, 709 So. 2d 1144, 1149 (Ala. 1997)).
The trial court found that Banker's claims were not
typical of the putative class because, it reasoned, Banker was
not injured by his purchase of the CSP in that Circuit City
provided him with a new monitor. The order of the trial court
states:
"[Banker] asserts that he was injured, but in
reality
mistakenly
believed--based
solely
upon
alleged
oral
representations--that
the
manufacturer's warranty had been superseded by the
CSP and that Circuit City would replace the product
if it malfunctioned for three years following its
purchase. Put simply, [Banker] entered into a
bargain, misunderstood the terms, received exactly
what he believed the benefit of his bargain to be,
and then demanded and now demands a refund of
consideration. The Court has difficulty perceiving
what constitutes [Banker's] 'injury,' and counsel's
argument at the hearing that the 'violation ...
occurred when he bought a warranty that was unclear'
does not answer how Mr. Banker was injured, if at
all, and how that injury is similar to any injury
suffered by the class. (Transcript at 50). Logic
dictates that it is not. [Banker] has not suggested
how [he] was deprived of any benefit of his
perceived bargain, or how he was deprived of
1070424
12
anything under the terms of the CSP. By the CSP's
terms, the most [Banker] would be entitled to was a
'new or factory reconditioned Product.' (CSP at ¶ 6)
[Banker] received a new monitor about which he has
no complaints."
Banker asserts that his damages are not related to
whether Circuit City satisfied the terms of the CSP; rather,
he asserts, his damages are the cost of the CSP. Banker
asserts that he and all other members of the putative class
have been harmed by Circuit City's alleged failure to provide
"proper disclosures ... concerning the CSP service contract so
that he could make an informed decision, at the point of sale,
as to whether or not to purchase the CSP." Banker's brief at
p. 39. Banker contends that the only differences among the
members of the putative class would be the various products
purchased and the amount each member paid for his or her CSP.
Banker contends that his claims are typical of all the members
of the putative class because Circuit City uses a form
document
for
the
CSP;
therefore,
he
says,
documents
substantially similar to the documents he received form the
basis of the claims of all members of the putative class.
Banker further contends that this case is analogous to
Keele v. Wexler, 149 F.3d 589, 592 (7th Cir. 1998), in which
1070424
13
the United States Court of Appeals for the Seventh Circuit
affirmed a class-certification order. In Keele, Karen Keele
had written a personal check to a Wal-Mart discount store for
$85.26; the check was later dishonored by Keele's bank. 149
F.3d at 590. Wal-Mart retained a law firm that subsequently
sent Keele a debt-collection letter stating that Keele must
pay the law firm the amount of the dishonored check, a $20.00
service charge, and a $12.50 collection fee. 149 F.3d at 590.
Keele subsequently paid the law firm the amount of the
dishonored check and the service charge, but not the
collection fee. 149 F.3d at 591. Keele sought class
certification for claims against the law firm of violations of
the Fair Debt Collection Practices Act ("the FDCPA") and the
Colorado Fair Debt Collection Practices Act ("the CFDCPA").
149 F.3d at 592. Relevant to Banker's argument, Keele claimed
that the CFDCPA prohibited the law firm from seeking a
collection fee from Wal-Mart debtors in Colorado, and the
trial court certified a class as to this claim. 149 F.3d at
592.
On appeal, the law firm argued that Keele's claim that
the law firm could not seek a collection fee from Wal-Mart
1070424
14
debtors was not typical of the class because she never paid
the collection fee. 149 F.3d at 592. The Court of Appeals
for the Seventh Circuit held that Keele's claim was typical of
the claims of the class. 149 F.3d at 595. That court held:
"By mailing the form letters seeking the $12.50
collection fee, the [law firm] engaged in the same
course of conduct towards Keele and the members of
classes A and B. These individuals are now suing the
[law firm] under the FDCPA and CFDCPA, alleging
violations of the same statutory sections under the
same legal theory."
149 F.3d at 595. Banker contends that just as Keele's non-
payment of the collection fee was immaterial to her class-
action claim that the law firm illegally sought to recover
collection fees from Wal-Mart debtors, his receipt of a new
monitor from Circuit City is immaterial to whether Circuit
City violated the disclosure requirements of the MMWA.
Circuit City contends that the trial court properly found
that Banker failed to meet his burden of proving that his
claims are typical of those of the putative class. See Rule
23(a)(3), Ala. R. Civ. P. Circuit City contends that Banker
failed to show how he was injured because, it says, Banker
received the full benefit of the CSP and proof of injury and
damage are necessary to allegations of violations of the MMWA,
1070424
"Federal cases construing the Federal Rules of Civil
1
Procedure are persuasive authority in construing the Alabama
Rules of Civil Procedure, which were patterned after the
Federal Rules of Civil Procedure." Ex parte Novartis Pharms.
Corp., 975 So. 2d 797, 300 n.2 (Ala. 2007).
15
unjust enrichment, and breach of contract. Circuit City first
notes that the United State Supreme Court has interpreted
subsection (3) of Rule 23(a), Fed. R. Civ. P., to require a
class representative to "'"possess the same interest and
suffer the same injury" as the class members.'" General Tel.
Co. of the Southwest v. Falcon, 457 U.S. 147, 156 (1982)
(quoting East Texas Motor Freight Sys., Inc. v. Rodriguez, 431
U.S. 395 (1977), quoting in turn Schlesinger v. Reservists
Comm. to Stop the War, 418 U.S. 208, 216 (1974)). Circuit
1
City contends that because Banker received the full benefit of
what he thought he had purchased, he has not suffered the same
alleged injury as other putative class members and therefore
that his claims cannot be typical of the claims of the
putative class. Circuit City further notes that in Rodriguez,
431 U.S. at 403-04, the United States Supreme dealt with
whether named plaintiffs were representative of a class and
held that the named plaintiffs "lacked the qualifications to
be hired as line drivers. Thus, they could have suffered no
1070424
16
injury as a result of the alleged discriminatory practices,
and they were, therefore, simply not eligible to represent a
class of persons who did allegedly suffer injury." (Footnote
omitted.)
Circuit City also contends that Banker's reliance on
Keele is misplaced because, he says, unlike the FDCPA, the
MMWA does not provide for statutory damages. Rather, the MMWA
provides for only compensatory and equitable relief, for which
individualized proof of damage is required. Circuit City
notes that in Keele the Seventh Circuit stated that the "FDCPA
does not require proof of actual damages as a precursor to the
recovery of statutory damages." 149 F.3d at 593 (footnote
omitted). Although Keele's claim regarding the collection fee
was made pursuant to the CFDCPA, the Seventh Circuit also
noted that its "legal discussion of the FDCPA is equally
applicable to the CFDCPA" because the CFDCPA is patterned
after the FDCPA. 149 F.3d at 594 n. 6.
We agree that Keele is distinguishable from the present
case because the MMWA requires proof of injury to recover
under its provisions. See 15 U.S.C. § 2310(d). Subsection
(d) of the MMWA, titled "Civil action by consumer for damages,
1070424
17
etc.; jurisdiction; recovery of costs and expenses; cognizable
claims," provides that "a consumer who is damaged by the
failure of a supplier, warrantor, or service contractor to
comply with any obligation under this chapter, or under a
written warranty, implied warranty, or service contract, may
bring suit for damages and other legal and equitable relief
...." 15 U.S.C. § 2310(d)(1) (emphasis added). Thus, the
MMWA does not provide that a consumer may recover statutory
damages.
Banker has not been damaged by Circuit City's alleged
violation of the disclosure requirements of the MMWA or by
Circuit City's alleged breach of contract, nor has Circuit
City been unjustly enriched; Banker accepted a new monitor
from Circuit City without any reservations or conditions.
Banker asserts that his damages and the damages of every
member of the putative class is the cost of the CSP. Yet
Banker has received more than three times his cost of the
CSP--$139.99--by accepting a new monitor from Circuit City,
which was worth $549.99. We note that Banker also alleges
that because of Circuit City's alleged failure to provide
proper disclosures about the terms and conditions of the CSP
1070424
18
he was unable to make an informed decision about purchasing
the CSP. However, had Banker been given the information he
claims he lacked, the most he could have saved was $139.99,
the amount of the CSP, which he presumably would have declined
to purchase. And, once again, Banker is faced with the
undisputed fact that he unconditionally accepted a benefit
from Circuit City substantially in excess of the amount he
claims he could have saved by not purchasing the CSP.
Likewise, because Circuit City has conferred upon Banker a
benefit in excess of his claimed out-of-pocket loss, which
Banker accepted unconditionally before he commenced his
action, his status is not typical of other putative class
members who might have claims against Circuit City for
disgorgement of sums as to which Circuit City has allegedly
been unjustly enriched. We are not here dealing with the
effect of a pre-suit tender of compensatory damages in the
context of a fraud claim because Banker dismissed the fraud
count of his complaint. Likewise we are not dealing with the
payment of compensatory damages by a third party because it is
undisputed that the replacement monitor was furnished by
Circuit City, not Sony.
1070424
19
We conclude that the trial court did not exceed its
discretion in finding that Banker failed to sustain his burden
of showing that his claims are typical of the claims of the
putative class. Banker's claims of violations of the MMWA,
breach of contract, and unjust enrichment are not typical of
the putative class because Banker has not suffered any damage
from the alleged wrongful conduct out of which the claims of
the putative class arise.
IV. Conclusion
Because we find that Banker's claims are not typical of
the claims of the putative class, we pretermit consideration
of all other arguments by Banker and Circuit City. We affirm
the order denying class certification.
AFFIRMED.
Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur. | September 5, 2008 |
1a6b467b-aae8-4193-a8b5-b662e7e65267 | Bon Aventure, L.L.C., and William Staggers v. Craig Dyas L.L.C. and Olympia Corte Dyas | N/A | 1051679 | Alabama | Alabama Supreme Court | The notice of appeal describes this appellant as
1
"Bon Adventure and/or Bon Adventure, L.L.C." It appears,
however, that the real party in interest is Bon Aventure,
L.L.C.
REL: 08/29/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
____________________
1051679
____________________
Bon Aventure, L.L.C., and William Staggers
v.
Craig Dyas L.L.C. and Olympia Corte Dyas
Appeal from Baldwin Circuit Court
(CV-04-1279)
MURDOCK, Justice.
William Staggers and Bon Aventure, L.L.C., appeal from
1
1051679
2
a judgment in favor of Craig Dyas L.L.C. and Olympia Corte
Dyas, Craig Dyas's mother. We reverse and remand.
I. Facts and Procedural History
Mrs. Dyas and her husband owned a tract of land on
Highway 98 in Baldwin County. In 1979, they named the
property "Bayou Volanta Commercial Park" and subdivided it
into three "units." The northern portion of the property was
divided into Units 1 and 2. The southern portion of the
property, measuring 6.8 acres in area, was designated as Unit
3.
In 1986, Mrs. Dyas and her husband recorded restrictive
covenants on Units 1 and 2 ("the restrictive covenants"),
which, among other things, prohibited construction of more
than "one permanent building for housing professional offices"
on any of the various lots or parcels within those two units.
The restrictive covenants were recorded at Miscellaneous Book
58, page 1022, in the Baldwin County Probate Court. The
restrictive covenants contained a paragraph indicating that
they did not apply "to any portion of Bayou Volanta Commercial
Park, Unit 3 ...."
1051679
We assume for purposes of this opinion that Staggers
2
holds an ownership interest in Bon Aventure, although the
nature and extent of his affiliation with Bon Aventure is not
apparent from the record.
3
As of March 2001, Mrs. Dyas apparently had become the
sole owner of Unit 3. In that month, she entered into an
agreement to sell a portion of Unit 3 to Staggers. Among
other
things,
the
agreement
included
the
following
contingency: "Buyer intends to develop this property into a
medical office park and possibly other health related
operations.
The
purchase
is
subject
to
the
proper
subdivision,
zoning
verification
and
approval
by
the
jurisdictional governing body in order to accomplish this type
of project." As called for in the purchase agreement, Mrs.
Dyas resubdivided Unit 3 into two lots. Apparently at
Staggers's request, Mrs. Dyas thereafter conveyed Lot 1 of
Unit 3 to Bon Aventure, L.L.C., in June 2001. The deed to
2
Bon Aventure provided that the conveyance of the property was
"made subject to ... [r]estrictive covenants as contained in
Miscellaneous Book 58, Page 1022 ...."
On November 5, 2004, Staggers and Bon Aventure sued Mrs.
Dyas and Craig Dyas L.L.C., which, according to Staggers and
Bon Aventure, had acted as Mrs. Dyas's agent for the sale of
1051679
4
Lot 1. Staggers and Bon Aventure alleged that the defendants,
as part of the agreement by which Bon Aventure purchased
Lot 1, agreed that the purchaser could erect a sign on certain
property owned by Mrs. Dyas that fronted on Highway 98. They
alleged that the defendants breached this agreement by
subsequently refusing to allow Staggers to erect a sign, and
that their previous agreement to allow him to do so
constituted a misrepresentation. Mrs. Dyas and Craig Dyas
L.L.C.
answered
the
complaint,
denying
the
material
allegations thereof. Mrs. Dyas also filed a counterclaim in
which she asserted that Lot 1 was subject to the restrictive
covenants and that, among other things, Bon Aventure had
violated the restrictive covenants by erecting two buildings
on Lot 1.
A bench trial was held on March 1, 2006. On April 25,
2006, the trial court entered a judgment in favor of Mrs. Dyas
and Craig Dyas L.L.C. on the complaint and in favor of
Mrs. Dyas on her counterclaim. With regard to the
counterclaim, the trial court stated:
"[T]he Court does hereby determine and declare that
those certain Restrictive Covenants dated September
23, 1986 and recorded in Miscellaneous Book 58, page
1022 in the Office of the Judge of Probate of
1051679
They do not appeal from the portion of the judgment
3
ruling against them on their claim against Mrs. Dyas and Craig
Dyas L.L.C.
5
Baldwin County, Alabama are properly incorporated by
reference in that certain Warranty Deed from Olympia
Corte Dyas to Bon Aventure, L.L.C., dated June 20,
2001, which is recorded as Instrument No. 603226 in
the Office of the Judge of Probate, Baldwin County,
Alabama,
and
that those restrictive covenants
constitute a burden on the title to the real
property conveyed by that deed, and that the said
covenants are valid and fully enforceable as to said
real property according to their terms ...."
Staggers and Bon Aventure appeal from the trial court's
judgment related to Mrs. Dyas's counterclaim.3
II. Standard of Review
As noted, this case was tried without a jury. "Where
evidence is presented to the trial court ore tenus, a
presumption of correctness exists as to the court's
conclusions on issues of fact ...." American Petroleum Equip.
& Constr., Inc. v. Fancher, 708 So. 2d 129, 132 (Ala. 1997).
The presumption of correctness accorded a trial court's
judgment following a bench trial where evidence is presented
ore tenus does not extend to its decisions on questions of
law. Instead, this Court reviews de novo the trial court's
1051679
Staggers and Bon Aventure's argument as quoted is
4
somewhat confusing. Although Bayou Volanta Commercial Park
includes all three units, they apparently intend their
references to Bayou Volanta Commercial Park in the first two
sentences of the quoted paragraph to refer to only Units 1 and
2.
6
rulings on questions of law. Ex parte Graham, 702 So. 2d
1215, 1221 (Ala. 1997).
III. Analysis
Staggers and Bon Aventure initially contend that the
trial court should have dismissed Mrs. Dyas's counterclaim
because, they argue, Mrs. Dyas was without standing to enforce
the restrictive covenants. Although they did not raise this
issue in the trial court, "'[s]tanding represents a
jurisdictional
requirement
which
remains
open
to
review
at
all
stages of the litigation.'" Ex parte Fort James Operating
Co., 871 So. 2d 51, 54 (Ala. 2003) (quoting National Org. for
Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994)). Thus, we
will address the issue of Mrs. Dyas's standing to assert her
counterclaim.
According to Staggers and Bon Aventure, the restrictive
covenants
"constitute a common development scheme for the
Bayou Volanta Commercial Park.
Those who are
[4]
1051679
7
owners of lots in Bayou Volanta are required to
comply with all of the restrictions in the general
scheme, and only those owners have the right to
enforce those restrictions. Paragraph 15 of the
restrictions provides: [']The covenants contained
herein may be enforced by the owner of any lot in
the subject property or by any member of the
Covenant
Review
Committee.'
...
The
'subject
property' is defined in the legal descriptions of
Units One and Two in the first two paragraphs of the
restrictions. As there is no evidence that the Dyas
defendants owned property in Units One or Two, the
Dyas defendants lack standing to enforce the
[restrictive covenants]."
We disagree.
Mrs. Dyas executed and filed the restrictive covenants.
The restrictive covenants contained the following clause:
"WHEREAS, [Mrs. Dyas] is interested in restricting
the use, occupancy and improvement of all lots in
said subdivision and on said parcel, so as to keep
the
use,
occupancy
and
improvement
of
said
subdivision and parcel at a high level for the
benefit and pleasure of the owners of the lots in
said subdivision and for the owners of neighboring
property, which is owned by [Mrs. Dyas] and also to
promote the appearance and protect the value of lots
in the subdivision and adjoining property ...."
(Emphasis added.) Thus, the record reflects that the
restrictive covenants were put in place for the express
benefit of property owned by Mrs. Dyas that is adjacent to the
property to which the restrictive covenants apply (Units 1 and
2). Because Mrs. Dyas owns property that is expressly
1051679
See also Nature Conservancy v. Congel, 253 A.D.2d 248,
5
251, 689 N.Y.S.2d 317, 319 (1999) ("Subsequently, New York
courts adopted the view that an owner of neighboring land, for
whose benefit a restrictive covenant is imposed by a grantor,
may enforce the covenant as a third-party beneficiary despite
the absence of any privity of estate between the grantor and
the neighbor ...."); Amir v. D'Agostino, 328 N.J. Super. 141,
152, 744 A.2d 1233, 1239 (1998) ("Amir contends that he has
standing even without the purported assignment. It is his
position that he is the intended beneficiary of the
restrictive covenants in the Fernicola/D'Agostino deed. It is
true that persons not a party to a transaction may
nevertheless be the intended beneficiary of a covenant and
thereby gain standing to enforce it."); Southeast Toyota
Distribs., Inc. v. Fellton, 212 Ga. App. 23, 25, 440 S.E.2d
708, 711 (1994) ("If a grantor sells his property with
restrictions which he intends are for the benefit of his
neighbors, the neighbors, as beneficiaries, may enforce the
benefiting restrictions."); and Muldawer v. Stribling, 243 Ga.
673, 675, 256 S.E.2d 357, 359 (1979) ("Where a grantor sells
his property with a restriction benefiting his neighbors, the
neighbor, as the beneficiary, may enforce it.").
8
benefited by the restrictive covenants, she is entitled to
enforce those restrictive covenants. See 20 Am. Jur. 2d
Covenants, Conditions, and Restrictions § 247 (2005) ("[A]
breach of ... a [restrictive] covenant may be restrained at
the suit of one who owns property or for whose benefit the
restriction has been established ...."); 2 Restatement (Third)
of Property: Servitudes § 8.1 (2000) ("A person who holds the
benefit of a servitude ... has a legal right to enforce the
servitude.").5
1051679
9
Furthermore, it is undisputed that Bon Aventure purchased
Lot 1 of Unit 3 directly from Mrs. Dyas, who owns the
remaining portion of Unit 3. The deed by which Mrs. Dyas
conveyed Lot 1 to Bon Aventure references, on its face, the
restrictive covenants. Assuming solely for purposes of this
discussion of the standing issue that this reference to the
restrictive covenants resulted in the incorporation of those
covenants into the deed (an issue we address below), Bon
Aventure, by its acceptance of the deed, would have agreed
that its ownership of Lot 1 was encumbered by the covenants
contained in the deed. See McKee v. Club-View Heights, Inc.,
230 Ala. 652, 654, 162 So. 671, 673 (1935) ("The grantee in
accepting the deed containing such conditions or covenants
accepts the title encumbered thereby, and is bound as though
he had signed the conveyance ...."). As the covenantee to the
restrictive covenants allegedly incorporated in the deed
conveying the property to Bon Aventure, Mrs. Dyas would have
standing to seek enforcement of the restrictive covenants.
See 20 Am. Jur. 2d Covenants, Conditions, and Restrictions
§ 242 (2005) ("The parties to a restrictive covenant may
enforce it among themselves, at least so long as the
1051679
The record does not reflect whether Mrs. Dyas is a member
6
of the "Covenant Review Committee."
10
covenantee continues to own any part of the tract for the
benefit of which the restrictions have been created."
(footnotes omitted)).
The foregoing analysis is not altered by the language in
paragraph 15 of the restrictive covenants, which states that
"[t]he covenants contained herein may be enforced by the owner
of any lot in the subject property or by any member of the
Covenant Review Committee." We do not read this clause as
6
being restrictive, but rather as permissive. That is, we do
not read this clause as limiting the scope of individuals and
entities with the authority to enforce the restrictive
covenants. Instead, we read this clause as expressly
affirming that certain individuals who might or might not
otherwise have a right to do so "may" enforce the covenants.
Specifically, this provision makes it clear that, in addition
to the owners of lots in Units 1 and 2, any member of the
Covenant
Review
Committee
"may"
sue
to
enforce
the
restrictive
covenants. Under the circumstances of this case, and without
more upon which to base such a reading, we decline to read the
1051679
11
affirmative grant of authority in this clause as negatively
implying an abrogation of Mrs. Dyas's right to seek
enforcement of the restrictive covenants under the common-law
principles discussed above.
Having determined that Mrs. Dyas has standing to enforce
the restrictive covenants, we turn now to the issue whether
the restrictive covenants are enforceable against Lot 1,
Bon
Aventure's
property.
Regarding
the
restrictive
covenants,
the deed for Lot 1 provides:
"This conveyance is made subject to the
following:
"....
"Restrictive
covenants
as
contained
in
Miscellaneous Book 58, Page 1022, but deleting any
covenant, condition, or restriction indicating a
preference, limitation or discrimination based on
race, color, religion, sex, handicap, familial
status, or national origin to the extent such
covenants, conditions or restrictions violate 42
U.S.C. 3604(c)."
Staggers and Bon Aventure contend that this language is
ambiguous and, as a result, that it did not effectively
incorporate the restrictive covenants into the deed. We
agree.
1051679
12
Recently, we stated: "Regarding the construction of
deeds, it is well settled that a deed is construed most
strongly against the grantor." Barnett v. Estate of Anderson,
966 So. 2d 915, 918 (Ala. 2007). See also Earle v.
International Paper Co., 429 So. 2d 989, 994 (Ala. 1983)
("[D]eeds of bargain and sale for valuable consideration are
to be construed against the grantor and in favor of the
grantee, when ambiguous."). See generally 23 Am. Jur. 2d
Deeds § 200 (2002) ("Most courts agree that if there is any
ambiguity
rendering
a
deed
subject
to
alternative
constructions,
that construction
will
be
adopted which is more
favorable to the grantee than to the grantor, all doubts being
resolved against the grantor." (footnotes omitted)).
Furthermore, "[i]t is also well settled that restrictions
on the use of land are not favored in the law, and such
restrictions are strictly construed in favor of the free use
of such property." Hill v. Rice, 505 So. 2d 382, 384 (Ala.
1987). Indeed, the construction this Court gives a
restrictive covenant "will not be extended by implication or
include anything not plainly prohibited and all doubts and
ambiguities must be resolved against the party seeking
1051679
13
enforcement." Bear v. Bernstein, 251 Ala. 230, 231, 36 So. 2d
483, 484 (1948).
The portion of the deed indicating that the conveyance of
Lot 1 to Bon Aventure was "subject to" the "[r]estrictive
covenants as contained in Miscellaneous Book 58, Page 1022,"
is ambiguous in two ways. First, the language employed does
not specifically state that the deed incorporates the
restrictive covenants, but only that the act of conveying the
property is "subject to" the restrictive covenants. The deed
is simply not clear with regard to whether the restrictive
covenants, which by their terms are not applicable to the
property conveyed to Bon Aventure, were to become a new
encumbrance on the property by operation of the deed.
Moreover, the document entitled "Restrictive Covenants"
appearing at "Miscellaneous Book 58, Page 1022," states
explicitly and in no uncertain language that it has no
application to Unit 3, a portion of which was eventually
conveyed to Bon Aventure. Specifically, it provides that "the
Restrictive Covenants contained herein are not intended to
apply to any portion of Bayou Volanta Commercial Park, Unit
Three ...." Thus, even if the "subject to" language employed
1051679
14
in the deed unambiguously incorporated the restrictive
covenants into the deed, those covenants, by their own terms,
do not apply to Bon Aventure's property, and, as a result, the
incorporation, even if effective, would create a further
ambiguity between the terms of the deed and the terms of the
restrictive covenants that would be incorporated therein.
Applying the rules of construction set forth above and
construing the deed most strongly in favor of both the grantee
(Bon Aventure) and the free use of the property conveyed, we
determine that the "subject to" clause in the deed listing the
book and page of the restrictive covenants did not effectively
encumber the property with the restrictive covenants that
apply to Units 1 and 2 of Bayou Volanta Commercial Park. The
trial court erred when it held otherwise.
IV. Conclusion
For the foregoing reason, we reverse the judgment of the
trial
court
finding
that
the
restrictive
covenants
applying
to
Units 1 and 2 of Bayou Volanta Commercial Park also encumber
Bon Aventure's property, and we remand the case for the entry
of an order consistent with this opinion.
1051679
15
REVERSED AND REMANDED.
Cobb, C.J., and See, Stuart, Smith, Bolin, and Parker,
JJ., concur.
Lyons, J., concurs in the result.
Woodall, J., dissents.
1051679
16
LYONS, Justice (concurring in the result).
The trial court awarded Mrs. Dyas relief on her
counterclaim in which she asserted that the property
Bon Aventure purchased, which was part of Unit 3, was subject
to the restrictive covenants applicable to Units 1 and 2. The
main opinion concludes that Mrs. Dyas had standing to enforce
the restrictive covenants but then reverses the judgment of
the trial court in favor of Mrs. Dyas on her counterclaim
based upon a finding that the restrictive covenants do not
apply to the subject property.
Mrs. Dyas and her husband are the source of the
restrictive covenants because they initially placed the
restrictive covenants of record. Paragraph 15 of the
restrictive
covenants
states:
"The
covenants
contained
herein
may be enforced by the owner of any lot in the subject
property or by any member of the Covenant Review Committee."
Mrs. Dyas is not within the category of entities described in
paragraph 15 that may enforce the restrictive covenants.
The main opinion "decline[s] to read the affirmative
grant of authority in [paragraph 15] as negatively implying an
abrogation of Mrs. Dyas's right to seek enforcement of the
1051679
17
restrictive
covenants
under
the
common-law
principles
discussed above." ___ So. 2d at ___. In so doing, the main
opinion disregards the plain language of paragraph 15 of the
restrictive covenants. Moreover, even if we were to deem the
reference in paragraph 15 to who may enforce the restrictive
covenants as ambiguous, we cannot construe it in favor of
Mrs. Dyas, the source of the covenants, because the relevant
rule
of
construction,
"expressio
unius
est
exclusio
alterius,"
operates to prevent her from being a member of the group
entitled to standing to enforce the covenants. In Ex parte
Haponski, 395 So. 2d 971, 972 (Ala. 1981), this Court stated:
"Similarly the meaning of 'curbs, gutters, and
pavement' should not be extended to include
underground storm drainage systems. The agreement
contained in respondent's letter specifically named
the items for which the petitioner was to pay fifty
percent of the costs. A familiar [maxim] of
statutory construction,
expressio unius est exclusio
alterius, is equally applicable in contract to
construction of contract language so that specific
mention of one of a class of things implies the
exclusion of those items not mentioned. Black's Law
Dictionary, p. 521 (5th Ed. 1979). It is axiomatic
that if a contract is ambiguous the court will
construe the contract most strongly against the
party who drew it; in this case, Todd Farms. Jewell
v. Jackson & Whitsitt Cotton Co., 294 Ala. 112, 313
So. 2d 157 (1975).
"Where, as here, the language of the contract is
unambiguous and plain in its expression, the court
1051679
18
cannot alter the agreement by construction but
rather must expound it as it is made by the parties.
Flowers v. Flowers, Ala., 334 So. 2d 856 (1976);
Springdale Gayfer's Store Co. v. D.H. Holmes Co.,
281 Ala. 267, 201 So. 2d 855 (1967). The terms of
this contract are clear as to what items of cost are
to be shared, but even if they were considered to be
ambiguous, the relevant rules of construction
mandate reversal of the decision of the Court of
Civil Appeals."
I therefore respectfully concur in the result.
1051679
19
WOODALL, Justice (dissenting).
I agree with the majority that Mrs. Dyas has standing to
enforce
the
restrictive
covenants.
However,
I
must
respectfully dissent, because, in my opinion, the restrictive
covenants
are
enforceable
against
the
property
conveyed
to
Bon
Aventure by Mrs. Dyas.
"A contractual provision is ambiguous if it is reasonably
susceptible of more than one meaning." FabArc Steel Supply,
Inc. v. Composite Constr. Sys., Inc., 914 So. 2d 344, 357
(Ala. 2005). In my opinion, the language of the conveyance
from Mrs. Dyas to Bon Aventure is reasonably susceptible of
only one meaning, namely, that it imposed upon that portion of
Unit 3 conveyed to Bon Aventure the same restrictive covenants
that had been imposed on Units 1 and 2 by the referenced
recorded instrument. I agree with Mrs. Dyas that any other
construction "would mean that there is no significance to the
'subject
to'
provision
of
the
deed
referencing
the
restrictive
covenants, contrary to the general rules of construction."
Mrs. Dyas's brief, at 19-20. See Wittmeir v. Leonard, 219
Ala. 314, 317, 122 So. 330, 333 (1929)("In construing
1051679
20
conveyances, 'each word is presumed to have been used for some
purpose, and deemed to have some force and effect.'"). | August 29, 2008 |
2ebe7df1-02a8-46d0-af89-17c1a6697967 | Ex parte Larry Ray Dunn. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: State of Alabama v. Larry Ray Dunn) | N/A | 1071267 | Alabama | Alabama Supreme Court | REL: 10/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1071267
____________________
Ex parte Larry Ray Dunn
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama v. Larry Ray Dunn)
(Tuscaloosa Circuit Court, CC-05-1539;
Court of Criminal Appeals, CR-07-0644)
STUART, Justice.
Larry Ray Dunn petitions this Court for a writ of
mandamus directing the Court of Criminal Appeals to vacate its
order granting the State's petition for a writ of mandamus.
In that order the Court of Criminal Appeals directed the trial
1071267
Rule 15.6(b), Ala. R. Crim. P., provides:
1
"(b) Admissibility of Evidence. Upon motion of
either party or upon its own motion, the court may
order that the question of the admissibility of any
specified
evidence be submitted for pre-trial
determination as if a motion to suppress had been
timely
filed
by
the
party
opposed
to
the
introduction of the evidence."
A request by the State for a pretrial ruling on the
admissibility of evidence permits the State, if its evidence
is suppressed, to appeal the trial court's suppression order
to the Court of Criminal Appeals. See Rule 15.7, Ala. R.
2
court to set aside its order granting Dunn's motion to
suppress, to accept the jury's verdict, and to sentence Dunn.
Dunn, in effect, asks this Court to direct the Court of
Criminal Appeals to enter an order denying the State's
petition for a writ of mandamus. We grant the petition and
issue the writ.
Facts
Dunn moved the trial court to suppress evidence that was
seized from his residence and that provided the basis for a
criminal charge against him. After conducting a suppression
hearing outside the presence of the jury, the trial court
stated that it was taking Dunn's suppression motion "under
advisement" and that the trial would proceed. The State did
not move, pursuant to Rule 15.6(b), Ala. R. Crim. P., for a
1
1071267
Crim. P. See also State v. A.R.C., 873 So. 2d 261, 267 (Ala.
Crim. App. 2003)(recognizing that if the State filed a motion
in limine seeking a pretrial ruling on the admissibility of
the evidence and the trial court suppressed the evidence, the
State could appeal the ruling, pursuant to Rule 15.7, Ala. R.
Crim. P., to the Court of Criminal Appeals).
3
pretrial determination on the admissibility of the evidence.
At the close of the State's case, Dunn renewed his motion to
suppress. The trial court stated that it would continue to
take Dunn's suppression motion under advisement. After the
jury returned a verdict of guilty, the trial court and counsel
for both sides discussed a schedule for briefing Dunn's
suppression issues. The parties briefed the issues, and,
after considering the briefs, the trial court granted Dunn's
motion to suppress.
The State then filed a petition for a writ of mandamus
with the Court of Criminal Appeals, asking that court to
prohibit the trial court from granting Dunn's motion to
suppress and to direct the trial court to enter a judgment of
guilt finalizing the jury's verdict and to pronounce sentence.
The Court of Criminal Appeals granted the State's petition and
ordered the trial court to set aside its suppression order, to
accept the jury's verdict, and to sentence Dunn. State v.
1071267
4
Dunn (CR-07-0644, May 28, 2008), ___ So. 2d ___ (Ala. Crim.
App. 2008)(table).
Dunn petitions this Court for a writ of mandamus
directing the Court of Criminal Appeals to vacate its order
granting the State's petition and to enter an order denying
the State's petition.
Standard of Review
"Our review of a decision of the Court of
Criminal Appeals on an original petition for a writ
of mandamus is de novo. Rule 21(e)(1), Ala. R. App.
P.; Ex parte Sharp, 893 So. 2d 571, 573 (Ala. 2003).
The standard for issuance of a writ of mandamus is
well settled:
"'A
writ
of
mandamus
is
an
extraordinary remedy, and is appropriate
when the petitioner can show (1) a clear
legal right to the order sought; (2) an
imperative duty upon the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) the properly invoked jurisdiction
of the court.'
"Ex parte BOC Group, Inc., 823 So. 2d 1270, 1272
(Ala. 2001)(citing Ex parte Inverness Constr. Co.,
775 So. 2d 153, 156 (Ala. 2000))."
Ex parte McCormick, 932 So. 2d 124, 127-28 (Ala. 2005).
Discussion
Dunn contends that the Court of Criminal Appeals erred in
issuing the writ because, he says, among other reasons, the
1071267
5
State did not establish that the trial court had "an
imperative duty ... to perform" and that it "refus[ed] to do
so."
"Mandamus
is
relief
to
be
issued
only
in
rare
circumstances." Ex parte United Equitable Life Ins. Co., 595
So. 2d 1373, 1374 (Ala. 1992). Here, the materials before us
clearly establish that the State failed to satisfy the
requirement for mandamus relief of "an imperative duty upon
the [trial court] to perform, accompanied by a refusal to do
so." Because the State did not move for a pretrial
determination on the admissibility of the evidence, the trial
court had the discretion to take Dunn's suppression motion
under advisement, proceed with the trial, and issue a ruling
after the jury returned its verdict. Thus, nothing before us
indicates that at the time the trial court entered its order
suppressing the evidence it had an imperative duty to perform
and refused to do so. Mandamus is a drastic and extraordinary
remedy that "will be denied, [when] there is another specific
and sufficient remedy provided by law." Arrington v. Van
Houton, 44 Ala. 284, 286 (1870). Because the State failed to
1071267
Although Justice Murdock did not sit for oral argument
2
of this case, he has viewed the video recording of that oral
argument.
6
satisfy the requirements for mandamus relief, the Court of
Criminal Appeals erred in issuing the writ.
Conclusion
Based on the foregoing, we grant Dunn's petition and
direct the Court of Criminal Appeals to vacate its writ and to
enter an order denying the State's petition.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and See, Lyons, Smith, Bolin, and Parker,
JJ., concur.
Woodall and Murdock, JJ., concur in the result.
2
1071267
7
MURDOCK, Justice (concurring in the result).
I believe the main opinion reaches the right result, but
for the wrong reason. The State was not entitled to a writ of
mandamus from the Court of Criminal Appeals if it could not
establish all four of the elements necessary for the issuance
of such a writ:
"(1) a clear legal right to the relief sought;
(2) an imperative duty upon the trial court to
perform, accompanied by its refusal to do so;
(3) the lack of another adequate remedy; and (4) the
properly invoked jurisdiction of this Court."
Ex parte Bill Heard Chevrolet, Inc., 927 So. 2d 792, 798 (Ala.
2005). The main opinion concludes, wrongly in my view, that
the State failed to establish the second element, i.e., that
the trial court was under "an imperative duty ... to perform"
but refused to do so. I believe the proper ground upon which
to base our decision in this case, however, is that the State
failed to establish the first element, i.e., that it had "a
clear legal right to the relief sought."
If the State had a clear legal right to the entry of a
judgment based on the jury's verdict, then I do not see how it
would not be "imperative" for the trial court to enter that
judgment at the procedural juncture at which the trial court
1071267
8
and the parties had arrived when the State sought mandamus
relief from the Court of Criminal Appeals. The trial was at
an end. The jury had returned its verdict against the
defendant. The trial court had ruled that some of the
evidence upon which the jury had reached its verdict should
have been suppressed. The only thing left for the trial court
to do –- indeed, the very next thing for the trial court to do
–- was to consider the entry of an order granting the
defendant a new trial or a judgment of acquittal. If the
State was to obtain the relief it sought –- the avoidance of
an order for a new trial or a judgment of acquittal, and
instead the procurement of a judgment of conviction based upon
the jury's verdict –- it obviously was imperative for the
State to obtain that at the juncture at which it sought it.
Further, the trial court's posttrial, postverdict order
granting the defendant's motion to suppress the evidence was
tantamount, at least in this particular case, to a refusal to
enter a judgment of conviction based on the jury's verdict.
The problem in my view is not that the duty, if any, on
the part of the trial court to perform was not imperative; it
is that there simply was no such duty –- at least not as this
1071267
9
case has been argued. In other words, the problem for the
State as I see it is that it has no "clear legal right to
relief" in the circumstances presented.
The order of the trial court suppressing the evidence in
question has not been challenged on its merits in the Court of
Criminal Appeals or in this Court. The only other challenge
to this ruling that the State could make, and the only
challenge that it has in fact attempted to make, is that the
suppression
order
by
the
trial
court
came
too
late
procedurally –- specifically, that the trial court could not
suppress the evidence at the late date (posttrial and
postverdict) at which it purported to do so. It is not
necessary to address the merits of this argument in order to
determine that the State does not have a clear legal right to
relief based upon it. This is so because it is an argument
that the State did not make to the trial court. To the
contrary, the State repeatedly had the opportunity throughout
the litigation –- before, during, and after the trial –- to
assert this position but did not do so. It repeatedly
acquiesced in the trial court's continued reservation of the
1071267
10
issue of suppression until after the trial had been concluded
and a verdict returned.
Our appellate courts do not grant relief based on
arguments presented for the first time to the appellate court.
Ex parte Farley, 981 So. 2d 392, 397 (Ala. 2007) (quoting
Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992),
and Baldwin County Elec. Membership Corp. v. Catrett, 942
So. 2d 337, 348 (Ala. 2006)). See also Baltimore & Carolina
Line, Inc. v. Redman, 295 U.S. 654, 659 (1935) ("The verdict
for the plaintiff was taken pending the court's rulings on the
motions and subject to those rulings. No objection was made
to the reservation or this mode of proceeding, and they must
be regarded as having the tacit consent of the parties.").
Thus, the State did not seek in its petition to the Court of
Criminal Appeals to vindicate a "clear legal right to relief."
It is on this basis that I concur in the result. | October 31, 2008 |
bd5a6b1d-2c8d-46fc-9b7d-dbf67f237397 | Blackwell v. State | 88 So. 2d 347 | N/A | Alabama | Alabama Supreme Court | 88 So. 2d 347 (1956)
Tom BLACKWELL
v.
STATE.
2 Div. 356.
Supreme Court of Alabama.
May 24, 1956.
Rehearing Denied June 30, 1956.
*348 Pitts & Pitts, Selma, Beddow, Gwin & Embry and Roderick Beddow, Jr., Birmingham, for appellant.
John Patterson, Atty. Gen., and Robt. Straub and Robt. G. Kilgore, Jr., Asst. Attys. Gen., for the State.
MERRILL, Justice.
Appellant was tried under an indictment charging first degree murder, was found guilty of second degree murder and sentenced to 25 years imprisonment. His motion for a new trial was overruled and he appealed.
The evidence discloses that around 12:01 a. m. on the morning of January 1, 1955, the deceased, Clarence Chester and his brother James (also deceased) were present at the *349 Embassy Club, located about two miles from Selma, along with a crowd of 100 or so persons including the appellant, Tom Blackwell, and his brother Mickey. James Chester and Mickey Blackwell got into a fight; the deceased and the appellant joined in a general melee which lasted some 15-25 minutes. At the conclusion of the melee, both Chesters left the club; appellant and Mickey followed a few seconds later. All of the parties had been drinking. Shortly thereafter both Chesters were observed lying on the ground in front of the club, motionless, and clasped in an embrace. Appellant and his brother, along with the witness Travis, went to appellant's car and got in. With appellant at the wheel, the car backed out of its parking place and proceeded forward toward the point where the Chesters were lying on the ground. Other cars were leaving at the time and it was raining. The left front wheel of appellant's car passed over the bodies of both Chesters, the frame of the car pinning them under it. The car was equipped with lowering blocks, the effect of which is to lower the rear end of the car. Both Chesters were dead when removed from under the car some 15 minutes later. According to Dr. Rehling, State Toxicologist, deceased died of asphyxiation caused by great force or pressure being applied to the neck and upper portion of the chest cavity which obstructed blood circulation and breathing by pressure at this point.
State witness Travis testified that when they arrived at the car from the club, appellant said, "We will fix those bastards"; that just before they ran over the bodies, someone yelled, "don't run over them boys"; that when the car came to a stop, someone came up to the car and said "you ran over those boys," at which time appellant said that was what he meant to do and if the man did not shut up the appellant would stomp his ass; that he (Travis) got out of the car, felt for the pulse of the deceased, found none, got back in the car and informed appellant that deceased was dead, and after they were transferred to the automobile of the officers, that appellant said over and over, "we will get twenty to twenty-five years for it". State's witness Wackerle testified that he was the person who shouted, "stop, stop, don't run over them" when the car was about twelve feet from the deceased and he corroborated substantially the third and fourth statements testified to by Travis. The defendant denied each of these statements except that someone yelled about the time he felt his wheels hit a bump and he brought the car to a halt. He testified that he never saw the Chesters on the ground and did not know he had run over them until the car was resting on their bodies. He further testified that his brother and Travis were on the front seat with him, that he was not drunk, that he remembered everything that took place outside and that he was in charge of his faculties.
Appellant urges that the court erred in that on rebuttal, after the defendant had testified, the state called the witness Baker, who stated that he had a conversation with the defendant after his arrest. The predicate as to the voluntariness of this statement was properly laid. After the question, "what was said in that conversation?", the defendant objected as follows:
The objection was overruled; defendant excepted and the witness testified:
These statements attributed to the defendant were inculpatory in part and exculpatory in part, but since no effort was made to have any particular part excluded, we shall proceed to treat the answer as though it were an inculpatory admission against interest in all respects, since it was an admission against interest in some respects. The questioned testimony of Baker relative to what the defendant said regarding his being drunk and not remembering is almost identical with that of officer Tompkins in Elkins v. State, 250 Ala. 672, 35 So. 2d 693, where it was held that such statement was in the nature of an inculpatory admission.
Appellant insists that Baker's testimony was inadmissible because the proper impeachment predicate was not laid to the defendant when he was on the witness stand. The established rule was restated in our recent case of Sparks v. State, 261 Ala. 2, 75 So. 2d 103, 106, as follows:
Every case cited in appellant's brief is one like the Sparks case, supra, where the witness sought to be impeached was not the accused. When the accused takes the stand to testify in his own behalf, he does so in a dual capacity(1) as the accused and (2) as a witness; Chambers v. State, Ala., 84 So. 2d 342, 343. There are instances when the impeachment predicate must be laid to the defendant when he is testifying; e. g., by proof of prior contradictory statements not admissible as confessions because not shown to have been voluntarily made. Smith v. State, 137 Ala. 22, 34 So. 396; Brown v. State, 243 Ala. 529, 10 So. 2d 855; Alberson v. State, 254 Ala. 87, 47 So. 2d 182. Another example is the case of Slaton v. State, 21 Ala.App. 422, 109 So. 118, 119, where "The defendant, when being examined as a witness, testified that the still was owned by a man named Poe, who was then dead. It was proper to allow the state to prove that at the time the defendant was arrested he made the statement that Poe had nothing to do with the still. This tended to impeach the witness on a material point."
The general rule in this state relative to an accused is that "the acts, declarations and conduct of the accused, against interest, are always competent." Woodard v. State, 253 Ala. 259, 44 So. 2d 241, 245; Hill v. State, 194 Ala. 11, 69 So. 941, 2 A.L.R. 509, and among the reasons why this is so insofar as declarations are concerned is that "all that the accused voluntarily wrote or said which is material to the charge, is competent against him because it is his own admission and against his own interest". Elkins v. State, supra [250 Ala. 672, 35 So. 2d 695].
In 2 Wharton's Criminal Evidence (12th Edition 1955) Section 397, we read:
*351 "Admissions are admissible although they contain exculpatory matter.
In IV Wigmore on Evidence, Third Edition, Sec. 1051, p. 8, we find: "The rule requiring that the witness must have been warned when on the stand, and asked whether he had made the statement about to be offered as a self-contradiction (ante, §§ 1025 ff.), has always been understood not to be applicable to the use of a party's admissions, i. e., they may be offered without a prior warning to the party."
Other authorities say:
"Statements and declarations by accused, before or after the commission of the crime, although not amounting to a confession, but from which, in connection with other evidence or surrounding circumstances, an inference of guilt may be drawn, are admissible against him as admissions. Such statements and declarations are original evidence and may be introduced without laying the foundation which is necessary when it is sought to impeach a witness". 16 C.J. Criminal Law, Sec. 1243, p. 626; 22 C.J.S., Criminal Law, § 730.
"In laying a predicate for the admission of a confession, it is proper for the prosecution, as a preliminary question, to inquire whether a confession was made. The time and place of the making of the confession, and the persons present, however, need not be established, the rule as to the foundation necessary when it is sought to impeach a witness being inapplicable." 22 C.J.S., Criminal Law, § 817, p. 1438.
"It is clear that admissions and declarations may be proved by a person other than the one who made them. * * * It is not essential to call the declarant's attention to the statement or to lay a foundation for its introduction, except such as may be necessary to show that it is relevant and material." 20 Am.Jur., Evidence, Sec. 549, p. 463.
A case in point is Roney v. State, 167 Miss. 827, 150 So. 774, 775, where the court said:
See also: Roberts v. State, 2 Boyce 385, 25 Del. 385, 79 A. 396; State v. Forsythe, 99 Iowa 1, 68 N.W. 446; Belt v. State, 103 Ga. 12, 29 S.E. 451; State v. Wertz, 191 Mo. 569, 90 S.W. 838; State v. Allen, 34 Mont. 403, 87 P. 177; State v. Green, 158 Wash. 574, 291 P. 728; State v. Freeman, 43 S.C. 105, 20 S.E. 974; People v. Ferrara, 31 Cal. App. 1, 159 P. 621; Keffer v. State, 12 Wyo. 49, 73 P. 556; State v. McDermott, 52 Idaho 602, 17 P.2d 343; Oney v. Commonwealth, 225 Ky. 590, 9 S.W.2d 723; People v. Griswold, 405 Ill. 533, 92 N.E.2d 91; Wooten v. State, 220 Ark. 750, 249 S.W.2d 964; State v. Johnson, 69 Ariz. 203, 211 P.2d 469; City of Middletown v. Dennis, Ohio Mun., 120 N.E.2d 903.
The Alabama case most nearly in point is King v. State, 24 Ala.App. 267, 134 So. 133, 135. The court there considered the necessity of an impeachment predicate to a witness and admissions of the defendant. Respecting the latter, it was said:
Of similar import is the civil case of Hesk v. Ellis, 200 Ala. 17, 75 So. 329, 330, when the court said: "The witness Hesk was therefore not a party to the cause on trial, and was not impeachable, as parties are, by proof of inconsistent statements without a proper predicate laid giving him an opportunity to admit, deny, or explain the statement assailed." Civil cases from other jurisdictions holding the same are listed in notes to the citations from Wigmore on Evidence, C.J., C.J.S., and Am.Jur. supra.
We think a reasonable and simple test to be applied to govern the admissibility of inculpatory admissions against interest is whether or not it could have been given in evidence if the defendant had not testified, or as stated in Eaton v. Commonwealth, 230 Ky. 250, 19 S.W.2d 218, 224:
Here Baker's testimony would have been admissible irrespective of whether the defendant had testified and the trial court properly admitted this evidence.
Prior to submission, the instant case was argued orally and appellant then cited the case of Wiggins v. State, 27 Ala.App. 451, 173 So. 890, in addition to those cited in brief. The applicable part of the opinion reads:
Because this holding seemed to be different from every other inference to be drawn from our cases and to be in conflict with the rule in most other jurisdictions, we examined the original record. The opinion is correct in stating that the question was asked for the sole purpose of impeaching the defendant Foster Wiggins, because these events happened sometime after the alleged robbery and larceny, at a different place, were not inculpatory admissions and were not pertinent to the issue of guilt and did not tend, in connection with proof of other facts to prove defendant Wiggins' guilt. But the opinion is incorrect in the statement that "no sufficient predicate was laid for the introduction of this evidence * * *". The bill of exceptions (p. 35) shows that after he had testified, the defendant Foster Wiggins, "being recalled on rebuttal, testified as follows on re-cross examination: `"I did not tell Lonnie Smith that he was a God dam lie and then get out of the car and knock him down. I did not testify that on the preliminary hearing."'." As said in Terry v. State, *353 16 Ala.App. 430, 78 So. 460, "although the predicate question is not set out in the bill of exceptions, the answers show that it was properly laid." It was after Foster Wiggins had thus testified upon being recalled, that Lonnie Smith testified as set out in the opinion of the Court of Appeals. It therefore follows that the Wiggins case, supra, cannot be considered as authority for the proposition for which it was cited by appellant.
Appellant's next contention is that Baker's testimony "should have been offered on the State's direct proof" and not on rebuttal. We cannot agree. It is within the discretion of the trial court to receive, in rebuttal, testimony which more properly should have been offered as part of the case in chief. Jackson v. State, 167 Ala. 44, 52 So. 835; Lambert v. State, 208 Ala. 42, 93 So. 708; Payne v. State, 261 Ala. 397, 74 So. 2d 630; Roney v. State, 167 Miss. 827, 150 So. 774; Berry v. Commonwealth, 227 Ky. 528, 13 S.W.2d 521. However, there is a strong inference in Delaney v. State, 204 Ala. 685, 87 So. 183, 184, that Baker's testimony was proper in rebuttal. It was there stated that the defendant's statements could be admissible "in rebuttal by the state to show a statement or statements, made on the occasion of these interviews or conversations, contradictory of any testimony given by the defendant on his trial."
The attorney general states in brief as a proposition of law that "conversations had by the defendant with a state witness in the nature of inculpatory admissions of collateral facts and not confessions of guilt are admissible in evidence without the necessity of laying a predicate", and cites many cases including Read v. State, 195 Ala. 671, 71 So. 96; Herring v. State, 242 Ala. 85, 5 So. 2d 104; Tillison v. State, 248 Ala. 199, 27 So. 2d 43. The proposition is correct and the cases support it, but they are not here applicable because they hold that no predicate as to voluntariness need be laid for such statements to be admissible, and they do not refer to the requirement that an impeachment predicate be laid as to time, place and circumstances. It will be recalled that in the instant case the predicate as to voluntariness was properly laid before the witness Baker testified as to the declarations of the defendant.
After arguing the question of the necessity of the predicate or foundation disposed of supra, appellant's brief cites thirteen instances in which it is argued that the questions asked by counsel for appellee, statements or arguments made by them to the judge or to the jury were so prejudicial to the appellant that a mistrial or a new trial should have been ordered.
The trial of this case began on Tuesday, May 24, 1955 and was concluded on Tuesday, May 31, 1955. It was hard fought and bitterly contested on both sides. Based on remarks of the trial court to the jury, it must have been very hot in the courtroom. Counsel for appellant and counsel for appellee argued with each other, made many side remarks and used expressions which could better have been left unsaid, and which under less stress and strain would not have been uttered; and each side on one or more occasions asked questions of witnesses which were patently inadmissible and were obviously asked to get objectionable matter before the jury or to discredit the witness before the jury. In each instance the trial court sustained objections and instructed the jury to disregard and exclude from their minds the objectionable inferences or insinuations springing from the questions. Near the end of the trial the court reminded counsel of his authority to punish for contempt and that he was ready to use that authority.
We have not only examined each of the instances cited by appellant, but others in the record, and have discussed each in consultation. There is nothing new about them; they are typical of questions which have arisen many times in a trial which is vigorously prosecuted and just as vigorously defended. The case was tried carefully and patiently by Judge Moore and he was prompt to exclude inadmissible and objectionable matter. No good purpose would be served to identify and discuss each *354 separate instance urged as error in brief. Suffice it to say that after a careful examination of each and the record as a whole, we find no reversible error relating thereto.
The evidence supported the verdict and the motion for a new trial was properly overruled. We fail to find error sufficient to effect a reversal in any other aspects of the record, even though not specifically urged in brief.
The judgment of the circuit court is affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 24, 1956 |
2e0ebccf-9595-423f-b1ad-adb44cedb058 | Jennifer Lynn Jordan, a minor, by and through her mother and next friend, Amanda Jordan v. Robin Calloway, individually and as the personal representative of the estate of Amanda Calloway, deceased | N/A | 1070354 | Alabama | Alabama Supreme Court | REL: 9/19/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
____________________
1070354
____________________
Jennifer Lynn Jordan, a minor, by and through her mother and
next friend, Amanda Jordan
v.
Robin Calloway, individually and as the personal
representative of the estate of Amanda Calloway, deceased
Appeal from Mobile Circuit Court
(CV-06-1073)
SEE, Justice.
Jennifer Lynn Jordan, a minor, by and through her mother
and next friend, Amanda Jordan, appeals from the trial court's
1070354
2
denial of her motion for a new trial in a tort action
resulting from an automobile accident. We affirm.
Facts and Procedural History
On March 30, 2004, in Orange Beach, Jennifer, who was
then 14 years old, was a passenger in an automobile driven by
Amanda Calloway ("Amanda"), who was then 16 years old. The
automobile driven by Amanda and owned by her mother, Robin
Calloway, struck the rear end of a truck that was stopped at
a traffic signal. Jennifer, who was sitting in the front
passenger seat, injured her knee when it struck the dashboard
during the collision. At the time of the collision, the truck
had been sitting at the traffic signal for 15 to 30 seconds
and the road was straight, with no obstructions between Amanda
and the truck. Jennifer did not receive any medical treatment
at the scene of the accident, but two days later she
complained of knee pain and went to her doctor. Jennifer's
knee pain worsened, and in June 2005, Jennifer underwent the
first of three surgeries; she had the second surgery in
September 2005 and the third in June 2006. Jennifer's mother,
Amanda Jordan ("Jordan"), as Jennifer's next friend, filed
this action on Jennifer's behalf against Robin Calloway
1070354
Amanda, who had a history of cancer, died from cancer in
1
April 2004.
Amanda was first diagnosed with cancer in her right leg
2
and hip in 2000. After treatment, Amanda's doctors thought
she was free of cancer, but in July 2003 Amanda was diagnosed
with a cancerous tumor on her skull, which was surgically
removed. In January 2004, Amanda was diagnosed with an
inoperable cancerous brain tumor, and she died in April 2004.
3
("Calloway"), individually and as personal representative of
the estate of Amanda, alleging that Calloway had wantonly
1
and/or negligently entrusted the vehicle to Amanda, and that
Amanda had wantonly operated it. Calloway filed a motion in
limine in the trial court to prevent Jordan from entering
Amanda's medical records into evidence, arguing that the
2
records had not been properly authenticated and that they
lacked probative value. Jordan argued that the records were
authenticated because they were produced by Calloway in
response to a discovery request. The trial court granted the
motion in limine to exclude the medical records, agreeing with
Calloway that the records were not properly authenticated and
that they lacked probative value.
After opening statements, Jordan moved the court to
reconsider the motion in limine, arguing that Calloway had
1070354
4
"opened the door" for the medical records to be admitted into
evidence
by
discussing
Amanda's
medical history in her opening
statement, specifically
the dimensions
and
extent of the brain
tumor that had been discovered in January 2004. Calloway
responded that there was nothing in the opening statement that
could not be testified to by her. The trial court, however,
allowed Amanda's medical records from the University of South
Alabama Medical Center to be admitted into evidence because
"they
are
properly
authenticated,"
but
it
continued
to
exclude
her
records
from
Nemours
Children's
Clinic,
Alabama
Orthopedic
Clinic, and the University of Alabama Pediatric Oncology
Clinic.
During the trial, Jordan testified, in support of
Jennifer's mental anguish claim, that the medical bills from
Jennifer's knee surgeries had placed Jordan's family in a
precarious financial condition and that they could not afford
to pay both Jennifer's medical bills and their regular
household expenses. During cross-examination, Calloway's
attorney asked Jordan whether she had recently purchased a new
car for Jennifer. Both parties were subject to a motion in
limine preventing them from disclosing a pretrial insurance
1070354
5
settlement
between
Jordan
and
Calloway's
automobile-liability-
insurance carrier. Jordan had paid for the car, at least in
part, with the proceeds from the settlement with the insurance
carrier. The trial court allowed the question over Jordan's
objection and refused to allow Jordan to mention the insurance
settlement in her answer.
At the close of Jordan's case, Calloway moved for a
judgment as a matter of law ("JML") on Jordan's claims. The
trial court entered a JML as to the wanton-entrustment claim
against Calloway, but it denied a JML as to the negligent-
entrustment claim against Calloway and as to the wantonness
claim against Amanda's estate. The jury returned a verdict in
favor of Calloway on both the negligent-entrustment claim and
the wantonness claim. Jordan moved for a new trial. The
trial court denied the motion, and Jordan now appeals.
Issues
Jordan raises three issues in her appeal: (1) whether the
trial court erred in excluding Amanda's medical records, other
than her records from the University of South Alabama Medical
Center; (2) whether the trial court erred in allowing cross-
examination of Jordan as to the purchase of the new car for
1070354
6
Jennifer; and (3) whether the trial court erred in entering a
JML on Jordan's wanton-entrustment claim.
Standard of Review
"'The decision to grant or to deny a motion for
a new trial rests within the sound discretion of the
trial court.' Bowers v. Wal-Mart Stores, Inc., 827
So. 2d 63, 73 (Ala. 2001); Hill v. Cherry, 379 So.
2d 590 (Ala. 1980). 'A denial of a motion for a new
trial strengthens the presumption of correctness
afforded a jury verdict.' Bowers, 827 So. 2d at 73.
This Court will not disturb the decision of the
trial court 'unless the verdict is against the
preponderance of the evidence or is clearly wrong or
unjust.' Bowers, 827 So. 2d at 73."
Keibler-Thompson Corp. v. Steading, 907 So. 2d 435, 440 (Ala.
2005).
"The standard applicable to a review of a trial
court's rulings on the admission of evidence is
determined by two fundamental principles. The first
grants trial judges wide discretion to exclude or to
admit evidence. 'The test is that the evidence must
... shed light on the main inquiry, and not withdraw
attention from the main inquiry.' Atkins v. Lee,
603 So. 2d 937 (Ala. 1992) (citing Ryan v. Acuff,
435 So. 2d 1244 (Ala. 1983)). The second principle
'is that a judgment cannot be reversed on appeal for
an error unless ... it should appear that the error
complained of has probably injuriously affected
substantial rights of the parties.'" Atkins, 603
So. 2d at 941.
Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 655 (Ala
1998).
1070354
7
"In reviewing a trial court's ruling on a motion
for a judgment as a matter of law, we apply the same
standard the trial court applied initially in
granting or denying the motion. Palm Harbor Homes,
Inc. v. Crawford, 689 So. 2d 3 (Ala. 1997). The
nonmovant must present substantial evidence to
withstand a motion for a judgment as a matter of
law. Palm Harbor Homes; West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989). When 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, entertaining any reasonable inferences
that the jury would have been free to draw. Carter
v. Henderson, 598 So. 2d 1350 (Ala. 1992). This
Court indulges no presumption of correctness as to
the trial court's rulings on questions of law."
Ricwil, Inc. v. S.L. Pappas & Co., 599 So. 2d 1126
(Ala. 1992).
Keibler-Thompson Corp., 907 So. 2d at 440.
Analysis
I.
Jordan's
first
argument
is
that
the
trial
court
improperly excluded Amanda's medical records as not being
properly authenticated. In Alabama Power Co. v. Tatum, 293
Ala. 500, 508, 306 So. 2d 251, 258 (1975), this Court held:
"It is an established rule of evidence in this state
that a party is relieved from the necessity of
proving the authenticity of a document which he
offers in evidence when such document is produced by
the adverse party on notice or motion, and the party
producing the document is a party to the instrument
or claims a beneficial interest thereunder."
1070354
8
Calloway, however, argues that Tatum should be read to include
only those documents created by the party to the action. We
need not address this question, however, because this Court
will not reverse the trial court's decision to deny a motion,
including a motion for a new trial, unless, "after an
examination of the entire cause, it should appear that the
error complained of has probably injuriously affected
substantial rights of the parties." Rule 45, Ala. R. App. P.
The trial court granted Calloway's motion in limine to exclude
all Amanda's medical records on the grounds, first, that the
records were not properly authenticated and, second, that the
records were not probative.
After Calloway's opening statement, Jordan moved the
trial court to reconsider its ruling excluding the medical
records. She argued that in her opening statement Calloway
had "opened the door" to admitting the records by discussing
Amanda's medical condition in general, by mentioning the
specific size of her brain tumor, and by comparing Amanda to
a normal 16-year-old. The trial court concluded that the
medical records from the University of South Alabama Medical
Center
had
been
"authenticated"
and
were
therefore
admissible.
1070354
Those excluded medical records contained treatment
3
information regarding (1) seizures Amanda had occasionally
suffered
from,
the
last
one
having
occurred
approximately
four
years before the accident; (2) Amanda's earlier bouts with
cancer; and (3) Amanda's final treatment for brain cancer,
which took place two weeks after the accident and during which
she died.
9
Those records contained the CT scan that had been performed on
Amanda, showing the size and location of the brain tumor she
was suffering from at the time of the accident. The trial
court continued to exclude Amanda's remaining medical
records.
3
Jordan argues that under Holly v. Huntsville Hospital,
865 So. 2d 1177 (Ala. 2003), the trial court's decision to
exclude the medical records is reversible error. In Holly,
after the defendant doctor testified that he had not breached
the standard of care, the trial court would not allow the
plaintiff's expert witnesses to testify as to the standard of
care. This prevented the plaintiffs from responding to the
doctor's testimony as to the standard of care and as to
whether he had breached it. On appeal, the doctor argued that
the error in not allowing the plaintiff's experts to testify
as to the standard of care was harmless because, he argued,
the plaintiffs were allowed to introduce sufficient expert
1070354
10
testimony to present a prima facie case as to whether the
defendant was liable, and, therefore, it was not prejudicial
to exclude the expert witnesses' testimony on the particular
issue of the standard of care. This Court stated that the
exclusion of evidence is reversible error if the evidence
"'"goes to settle an ultimate issue in the case and ... is
different from the testimony given by the witnesses who have
already testified."'" 865 So. 2d at 1188 (quoting State ex
rel. Pryor v. Cupps, 770 So. 2d 1111, 1112 (Ala. Civ. App.
2000), quoting in turn C. Gamble, McElroy's Alabama Evidence
§ 10.6 at 34 (5th ed. 1996)).
This case is distinguishable from Holly because in Holly
the excluded evidence went to the doctor's liability and
directly contradicted the doctor's own testimony concerning
his breach of the standard of care. In the case before us,
Calloway testified and was cross-examined on the information
contained in the medical records. The excluded medical
records would have been cumulative in that they would not have
contradicted or differed from Calloway's testimony. "The
exclusion
of
admissible
evidence
does
not
constitute
reversible error where the evidence 'would have been merely
1070354
11
cumulative of other evidence of the same nature, which was
admitted.'" Houston v. State, 565 So. 2d 277, 281 (Ala. Crim.
App. 1990) (quoting Ex parte Lawson, 476 So. 2d 122, 122 (Ala.
1985). Therefore, the trial court's error, if any, in finding
that the excluded medical records were not properly
authenticated was not prejudicial to Jordan, and we affirm the
trial court's denial of Jordan's motion for a new trial on
this issue. See Rule 45, Ala. R. App. P.
II.
Jordan argues that by allowing Calloway to ask on cross-
examination whether Jordan had purchased a new car, the trial
court permitted inadmissible evidence regarding Jordan's
general wealth or poverty. See Marks v. Intergraph Corp.,
Inc., 740 So. 2d 1066, 1068 ("Reference to a party's wealth or
poverty is generally not permitted under Alabama law.").
However,
in
support
of
Jennifer's
mental-anguish
claim,
Jordan
testified on direct examination that she and her family had
difficulty paying Jennifer's medical bills; that the family
had to choose between paying the medical bills and buying
groceries; and that she had had to beg creditors for payment
1070354
Jordan claims in her brief that her testimony on direct
4
examination as to the difficulty in paying bills went only to
establishing the amount of Jennifer's medical bills; however,
the record shows that Jordan offered the testimony in support
of
Jennifer's
mental-anguish
claim.
When
Calloway
objected
to
the direct-examination testimony on the ground that it
interjected Jordan's general wealth or poverty, Jordan
responded that "the jury has to hear what position that family
was in" to determine whether Jennifer had a reasonable basis
for her claim. Thus, Jordan's testimony went to the impact of
the medical bills on Jennifer, not to the amount of those
bills.
12
plans allowing her to make payments as low as $10 per month.4
Marks, however, stands not only for the general
proposition that a reference to a party's wealth or poverty is
not permitted, but also for the proposition that "[i]t is
generally recognized that a party may inquire into an opposing
party's wealth on cross-examination or in rebuttal if that
opposing party 'opens the door' to such an inquiry." 740 So.
2d at 1068. Calloway explains that her question regarding
Jordan's purchase of the car for Jennifer was an attempt to
refute Jordan's prior testimony regarding her family's
inability to pay Jennifer's medical bills. Thus, Calloway's
question regarding Jordan's purchase of an automobile was a
direct response to Jordan's mental-anguish claim, which arose
out of the family's inability to pay its bills.
1070354
13
Jordan further argues that because the money used to
purchase Jennifer's car came, at least in part, from a
settlement with Calloway's insurer, the question allowed the
introduction of evidence of an insurance settlement. Jordan
notes that "[t]he principle that reference to indemnification
or insurance of an opposing party is highly prejudicial and
grounds for a mistrial or a new trial is firmly established."
Cook v. Anderson, 512 So. 2d 1310, 1311 (Ala. 1987). However,
in pursuing that line of questioning, Calloway made no mention
of the insurance settlement.
Jordan alleges that the trial court compounded its error
by not allowing Jordan to disclose in her answer the source of
the money she used to purchase the car and that she was then
prejudiced because the jury was allowed to impermissibly
consider
the allegedly irrelevant
fact
of
Jordan's
purchase
of
a new car for Jennifer. Calloway did not mention the
insurance settlement or infer its existence in asking her
question. Jordan argues that Calloway "opened the door" to
disclosing the insurance settlement by asking the question
regarding the purchase of the car. That question, however,
was relevant to the substantive issue whether Jennifer's
1070354
14
medical bills were the cause of the family's financial
difficulties, and that issue was introduced by Jordan's
testimony on direct examination.
For the foregoing reasons, we hold that the trial court
did not exceed its discretion by allowing Calloway to ask
Jordan about the purchase of the new car or by preventing
Jordan from
discussing the
insurance
settlement in her
answer,
and, as to this ground, we affirm the trial court's denial of
Jordan's motion for a new trial.
III.
Finally, Jordan argues that she is entitled to a new
trial because, she says, the trial court erred in entering a
JML
in
favor
of
Calloway
on
Jordan's
wanton-entrustment
claim.
Wantonness is "'the conscious doing of some act or the
omission of some duty, while knowing of the existing
conditions and being conscious that, from doing or omitting to
do an act, injury will likely or probably result.'" Barker v.
Towns, 747 So. 2d 907, 907 (Ala. Civ. App. 1999) (quoting Alfa
Mutual Ins. Co. v. Roush, 723 So. 2d 1250, 1256 (Ala. 1998)).
In order to establish wanton entrustment, Jordan must show
that
Calloway
entrusted
the
automobile
to
Amanda
while
knowing
1070354
15
that that entrustment would likely or probably result in
injury to others.
Jordan argues that she presented substantial evidence of
wantonness by showing that Calloway was aware that Amanda was
suffering from terminal brain cancer at the time she entrusted
her with a vehicle and that, after the accident, Calloway
allegedly stated that she should not have let Amanda drive
"during spring break." First, Jordan did not present any
evidence indicating that the accident was causally related to
Amanda's medical condition, and none of those present at the
accident scene, including Jennifer, gave any indication that
they had seen anything that would suggest that Amanda's
cancer, or its symptoms, had caused the accident.
Second, Calloway's statement that she should not have
allowed her 16-year-old daughter to drive her vehicle during
spring break is not substantial evidence indicating that
Calloway knew that Amanda was incompetent to drive and that
she was conscious that injury to others would likely or
probably result if she let Amanda drive her vehicle.
"'Substantial evidence is "evidence
of
such
weight
and quality
that
fair-minded
persons
in
the
exercise
of
impartial
judgment
1070354
It would be speculative to conclude that by her comment
5
Calloway was speaking of Amanda's medical condition, and
"[e]vidence which affords nothing more than mere speculation,
conjecture, or guess is insufficient to warrant submission of
a case to a jury." Nelson v. Dunaway, 536 So. 2d 955, 956
(Ala. Civ. App. 1988).
16
can reasonably infer the existence of the fact sought to be
proved."'" Moon v. Pillion, [Ms. 1070124, July 11, 2008] ___
So. 2d ___, ___ (Ala. 2008) (quoting Catrett v. Baldwin County
Elec. Membership Corp., [Ms. 1061538, May 23, 2008] ___ So. 2d
___, ___ (Ala. 2008), quoting in turn West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989)).
Jordan did not
present
any
evidence
indicating that Calloway's
statement regarding not
allowing
Amanda to
drive
during spring
break was somehow related to Amanda's medical condition.
5
For the foregoing reasons, we conclude that the trial
court did not err in entering a judgment as a matter of law on
Jordan's wanton-entrustment claim, and we affirm the trial
court's judgment on this issue.
Conclusion
Jordan has not demonstrated that the trial court
committed reversible error or that it exceeded its discretion
1070354
17
in denying her motion for a new trial. Therefore, we affirm
the trial court's judgment.
AFFIRMED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | September 19, 2008 |
736b485d-1a39-42f4-bea1-9c9944639440 | Ex parte City of Arab and Alabama Department of Revenue. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: IEC Arab Alabama, Inc. v. City of Arab and Alabama Department of Revenue) | N/A | 1071652 | Alabama | Alabama Supreme Court | REL: 10/31/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1071652
____________________
Ex parte City of Arab and Alabama Department of Revenue
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: IEC Arab Alabama, Inc.
v.
City of Arab and Alabama Department of Revenue)
(Marshall Circuit Court, CV-06-36;
Court of Civil Appeals, 2070174)
STUART, Justice.
The petition for the writ of certiorari is denied.
1071652
2
In denying the petition for the writ of certiorari, this
Court does not wish to be understood as approving all the
language, reasons, or statements of law in the Court of Civil
Appeals’ opinion. Horsley v. Horsley, 291 Ala. 782, 280 So.
2d 155 (1973).
WRIT DENIED.
Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin, and
Parker, JJ., concur.
Murdock, J., concurs specially.
1071652
3
MURDOCK, Justice (concurring specially).
I concur with the decision of this Court to deny the
petition in this case. I write separately to explain my
disagreement with the rationale employed by the Court of Civil
Appeals as to one of the several issues presented to that
court.
First, I note my agreement with the conclusion of the
Court of Civil Appeals as to the primary issue presented,
i.e., the intent of the legislature as to the retroactivity of
§ 40-23-62(1), Ala. Code 1975, as amended by Act No. 97-301,
Ala. Acts 1997, which provides in § 3 that it shall be
"retroactively effective." I also agree with the reasoning
employed by the Court of Civil Appeals to reach that
conclusion. Further, I agree with the result reached by the
Court of Civil Appeals, as well as its reasoning, as to the
disallowance of the retroactive failure-to-file penalties.
As to the issue of notification of the attorney general,
however, I disagree with the notion expressed in the opinion
of the Court of Civil Appeals that the constitutional
challenge advanced by IEC Arab Alabama, Inc., is an "as
applied" challenge and not a "facial" challenge. If we were
1071652
4
to decide in this case (in agreement with the position of the
Alabama Department of Revenue) that the meaning of the statute
was to allow unlimited retroactive assessments (thus allowing
a retroactive application for the seven years at issue here),
that would be the facial meaning of the statute and it would
be this facial meaning that IEC would be challenging as
unconstitutional. The fact that the Court of Civil Appeals
rejected the Department's position as to the facial meaning of
the statute does not mean that IEC's challenge would not have
been facial in nature; it simply means that that challenge is
moot. The result reached is the same, however, and I
therefore concur in denying the petition. | October 31, 2008 |
e6731379-08d9-4375-baf0-2210c1653915 | Ex parte Nacola Ruggs. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: MasterBrand Cabinets, Inc., f/k/a NHB Industries, Inc. v. Nacola Ruggs) | N/A | 1061379 | Alabama | Alabama Supreme Court | Rel 08/22/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1061379
_________________________
Ex parte Nacola Ruggs
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: MasterBrand Cabinets, Inc.,
f/k/a NHB Industries, Inc.
v.
Nacola Ruggs)
(Talladega Circuit Court, CV-01-0521;
Court of Civil Appeals, 2050800)
COBB, Chief Justice.
1061379
2
Nacola Ruggs petitioned this Court for the writ of
certiorari to review the judgment of the Court of Civil
Appeals reversing the decision of the trial court, which had
found MasterBrand Cabinets, Inc., f/k/a NHB Industries, Inc.
("MasterBrand"), liable, pursuant to § 25-5-8(e), Ala. Code
1975, for two times the amount of compensation that would
otherwise have been payable. We granted certiorari review to
determine the question of first impression: Whether the
double-compensation penalty provided in § 25-5-8(e), Ala. Code
1975, is subject to the time limitations set forth in Rule 59,
Ala. R. Civ. P. Because we find that a claim asserted under
§ 25-5-8(e) is independent of the claim for workers'
compensation benefits and that, therefore, a motion seeking
the double-compensation penalty is not a Rule 59 motion, we
reverse and remand.
Facts and Procedural History
Ruggs sustained an on-the-job injury while she was
employed by MasterBrand. The details of the injury and
Ruggs's subsequent treatment are set forth in the Court of
Civil Appeals' opinion. MasterBrand Cabinets, Inc. v. Ruggs,
891 So. 2d 869 (Ala. Civ. App. 2004) ("MasterBrand I").
Although this fact is not revealed in the opinion in
1061379
3
MasterBrand I, Ruggs was paid temporary-total-disability
benefits for approximately a year by Gallagher Bassett
Services,
Inc.,
a
workers'
compensation
third-party
administrator. A dispute arose over the payment of Ruggs's
benefits, and Ruggs sued MasterBrand, seeking workers'
compensation benefits. Following an ore tenus proceeding, the
trial court entered an order finding Ruggs 100% permanently
and totally disabled. MasterBrand appealed the judgment to
the Court of Civil Appeals, which affirmed the judgment in
part, reversed it insofar as it found that Ruggs suffered a
100% total disability, and remanded the case to the trial
court. MasterBrand I. On remand, the trial court again found
Ruggs
to
be
100%
permanently
and
totally
disabled.
MasterBrand again appealed, and the Court of Civil Appeals
affirmed the trial court's judgment, without an opinion.
MasterBrand Cabinets, Inc. v. Ruggs, 945 So. 2d 496 (Ala. Civ.
App. 2005) (table) ("MasterBrand II"). The Court of Civil
Appeals issued its certificate of judgment on September 16,
2005.
On October 20, 2005, Ruggs's counsel wrote MasterBrand
demanding payment of the lump sum due under the trial court's
judgment
and
requesting that MasterBrand designate
an
1061379
4
authorized treating physician for Ruggs; MasterBrand failed to
respond to Ruggs's letter.
Clarence Haynes, the circuit clerk for Talladega County,
mailed a letter to MasterBrand's counsel of record inquiring
as to whether to pay Ruggs the supersedeas bond that had been
deposited with the circuit clerk pending appeal. He received
no response. Haynes also telephoned MasterBrand's local
counsel regarding the supersedeas bond. According to Haynes,
local counsel stated he would contact Haynes within a week
regarding the supersedeas bond, but he did not do so. Haynes
then declared the bond forfeited and paid the proceeds of the
bond and the accrued interest to Ruggs. The bond proceeds and
accrued interest, however, failed to satisfy the judgment.
Ruggs then attempted to garnish the balance due on the
judgment from MasterBrand's bank accounts, but the garnishment
document was returned "not indebted."
On November 29, 2005, Ruggs filed with the trial court a
pleading styled "Motion to Enforce Judgment of Court and
Petition for Rule Nisi." In her motion, Ruggs sought to have
the trial court enforce its judgment, to hold MasterBrand in
contempt for failing to comply with the trial court's
judgment, and to assess a double penalty on MasterBrand
1061379
Section 25-5-8(c), Ala. Code 1975, states:
1
"(c) Evidence of compliance. An employer
subject to this chapter shall file with the director
[of DIR], on a form prescribed by the director,
annually or as often as the director in his or her
discretion deems necessary, evidence of compliance
with the requirements of this section. In cases
where insurance is taken with a carrier duly
authorized to write such insurance in this state,
notice of insurance coverage filed by the carrier
shall be sufficient evidence of compliance by the
insured."
5
pursuant to § 25-5-8(e), Ala. Code 1975, for failure to be
insured or self-insured. The trial court set a hearing on
Ruggs's motion for December 14, 2005. In its six-line order
setting the hearing date, the trial court ordered MasterBrand
to have "its duly authorized representative that is familiar
with
[MasterBrand's]
workers'
compensation
insurance,
if
any,"
present at the hearing. MasterBrand, however, failed to have
such a representative at the hearing. Instead, Joseph Scott
Ammons, general counsel for the workers' compensation division
of the Alabama Department of Industrial Relations ("DIR"), as
a witness for Ruggs, testified at the hearing that DIR's
records indicated that MasterBrand was neither insured nor
enjoying self-insurer status at the time Ruggs sustained her
on-the-job injury. On April 4, 2006, the trial court entered
1
1061379
6
an order finding that MasterBrand was not insured and did not
hold self-insurer status at the time of Ruggs's injury and
thus that Ruggs was entitled to double compensation under §
25-5-8(e), Ala. Code 1975. The trial court also found that
although MasterBrand had failed to comply with the trial
court's order on more than one occasion, its noncompliance was
due to negligence instead of willful disregard and, thus, it
did not find MasterBrand in contempt of court. On May 4,
2006, MasterBrand moved the trial court to vacate or amend its
judgment pursuant to Rule 59(e), Ala. R. Civ. P., and asserted
for the first time that Ruggs's motion to enforce the judgment
and her petition for rule nisi was actually a Rule 59, Ala. R.
Civ. P., motion to alter or amend the judgment; MasterBrand's
motion was denied on May 11, 2006.
MasterBrand appealed to the Court of Civil Appeals. On
appeal, MasterBrand again argued that the trial court lacked
jurisdiction to award double compensation because, it argued,
Ruggs's motion, which it asserted was a Rule 59(e), Ala. R.
Civ. P., motion, was untimely filed. The Court of Civil
Appeals agreed, concluding that the "motion was in substance
a Rule 59(e), Ala. R. Civ. P., motion seeking to amend the May
24, 2004, final judgment," and that the trial court lacked
1061379
After granting Ruggs's petition for a writ of certiorari
2
and receiving the record and appellate briefs from the Court
of Civil Appeals, this Court noticed that the motion that the
Court of Civil Appeals had concluded was a Rule 59(e) motion
was not included in the record. Instead, it was attached as
an appendix to Ruggs's brief. Appellate courts are not
permitted to consider matters outside the record. See, e.g.,
Etherton v. City of Homewood, 700 So. 2d 1374, 1378 (Ala.
1997). "'"[A]ttachments to briefs are not considered part of
the record and therefore cannot be considered on appeal."'"
Roberts v. Nasco Equip. Co., [Ms. 1060170, November 16, 2007]
___ So. 2d ___, ___ (Ala. 2007) (quoting Morrow v. State, 928
So. 2d 315, 320 n. 5 (Ala. Crim. App. 2004), quoting in turn
Huff v. State, 596 So. 2d 16, 19 (Ala. Crim. App. 1991)).
However, because Ruggs did not raise this issue in her
petition, this Court, ex mero motu, remanded this matter to
the trial court pursuant to Rule 10(f), Ala. R. App. P., for
the record to be supplemented with Ruggs's motion.
7
jurisdiction to entertain the motion, and it reversed the
April 4, 2006, judgment of the trial court. MasterBrand
2
Cabinets, Inc. v. Ruggs, [Ms. 2050800, April 13, 2007] ___ So.
2d ___ (Ala. Civ. App. 2007) ("MasterBrand III"). Ruggs
petitioned this Court for the writ of certiorari. We granted
certiorari review in this case to address whether Ruggs's
motion seeking to enforce the judgment and to assess double
compensation under § 25-5-8(e) is an untimely Rule 59(e), Ala.
R. Civ. P., motion so as to preclude her from seeking relief
under § 25-5-8(e), even though she learned of MasterBrand's
noninsured status more than 30 days after the entry of
judgment.
1061379
8
Analysis
This is not the first time our appellate courts have
addressed § 25-5-8(e). Previously the Court of Civil Appeals
has issued opinions in which the double-compensation penalty
assessed by § 25-5-8(e) was imposed at the time judgment was
entered. See, e.g., CIGNA Ins. Co. v. Ward, 658 So. 2d 504
(Ala. Civ. App. 1994); Highfield's Alignment Serv. v. Scott,
624 So. 2d 630 (Ala. Civ. App. 1993); and Hester v. Ridings,
388 So. 2d 1218 (Ala. Civ. App. 1980). The Court of Civil
Appeals has also issued opinions in which the issue of the
double-compensatory penalty has been raised during the
pendency of a timely filed Rule 59(e), Ala. R. Civ. P., motion
to alter, amend, or vacate a judgment. See, e.g., Christopher
v. Hunter, 674 So. 2d 564 (Ala. Civ. App. 1995), and Hastings
v. Hancock, 576 So. 2d 666 (Ala. Civ. App. 1991). However,
the instant case raises for the first time the issue whether
a claimant may assert a claim based on the double-penalty
provision in § 25-5-8(e) more than 30 days after judgment has
been entered.
It is well settled that the double-compensation penalty
provision in § 25-5-8(e) is mandatory. See Hastings, 576 So.
2d at 667 ("This court has previously determined that the
1061379
9
double award penalty provision of § 25-5-8(e), [Ala.] Code
1975, is mandatory."); Rush v. Heflin, 411 So. 2d 1295, 1296
(Ala. Civ. App. 1982) ("[T]here is no legal right to relief
from a penalty which is required to be imposed by law."); and
Harris v. Vaughan, 373 So. 2d 1111, 1112-13 (Ala. Civ. App.
1979) ("In view of the mandatory language of [§ 25-5-8(e)] ...
and because of the requirement that the remedial and
beneficent purposes of the Workmen's Compensation Act be
recognized through liberal construction of its provisions ...,
we hold that plaintiff is entitled to the award of double the
amount to which she would have otherwise been entitled."). As
the Court of Civil Appeals has previously observed regarding
§ 25-5-8(e):
"The [double-compensation] penalty was designed to
promote compliance with our workmen's compensation
law just as other penalties are designed to promote
compliance with other laws. Compensation laws were
enacted to make more certain the relief available to
the employee who comes under its influence. Alabama
By-Products Co. v. Landgraff, 32 Ala. App. 343, 27
So. 2d 209 (1946). These laws are a form of
regulation by the state. It is within the limits of
permissible regulation, in aid of a system of
compulsory compensation, to require the employer
either to carry workmen's compensation insurance or
furnish satisfactory proof of his financial ability
to pay compensation when due. Ward & Gow v.
Krinsky, 259 U.S. 503, 42 S. Ct. 529, 66 L. Ed. 1033
(1922). The penalty provided in § 25-5-8(e) is
1061379
10
permissible in that it promotes compliance with a
valid legislative objective."
Hester, 388 So. 2d at 1220.
As a member of this Court noted during oral argument in
this case, it appears that the Court of Civil Appeals
attempted to "pigeonhole" Ruggs's pleading as an authorized
pleading under the Alabama Rules of Civil Procedure and
determined that it fit best under Rule 59(e), Ala. R. Civ. P.
Before considering whether Ruggs's pleading was properly
characterized as a Rule 59 motion to alter or amend the
judgment, this Court must first consider a more rudimentary
question: Whether the double-compensation penalty provision
of § 25-5-8(e) creates a claim or cause of action independent
of an employee's claim for workers' compensation benefits.
Accordingly, we consider the application of § 25-5-8(e) under
the following standard:
"'The
fundamental
principle
of
statutory
construction is that words in a statute must be
given their plain meaning.' Mobile Infirmary Med.
Ctr. v. Hodgen, 884 So. 2d 801, 814 (Ala. 2003).
'When a court construes a statute, "[w]ords used in
[the] statute must be given their natural, plain,
ordinary, and commonly understood meaning, and where
plain language is used a court is bound to interpret
that language to mean exactly what it says."' Ex
parte Berryhill, 801 So. 2d 7, 10 (Ala. 2001)
(quoting IMED Corp. v. Systems Eng'g Assocs. Corp.,
602 So. 2d 344, 346 (Ala. 1992)). Additionally,
1061379
11
'"[c]ourts must liberally construe the workers'
compensation law 'to effectuate its beneficent
purposes,' although such a construction must be one
that the language of the statute 'fairly and
reasonably' supports."' Ex parte Weaver, 871 So. 2d
820, 824 (Ala. 2003)(quoting Ex parte Beaver Valley
Corp., 477 So. 2d 408, 411 (Ala. 1985))."
Trott v. Brinks, Inc., 972 So. 2d 81, 85 (Ala. 2007).
Similarly, "[w]e have often stated that 'the meaning of
statutory language depends on context,' and that, as a result,
statutes must be read as whole in order to ascertain the
meaning and intent of each component." Ex parte Master Boat
Builders, Inc., 779 So. 2d 192, 196 (Ala. 2000) (quoting Ex
parte Jackson, 614 So. 2d 405, 406 (Ala. 1993)).
Section 25-5-8(e), Ala. Code 1975, provides:
"(e) Penalties for failure to secure payment of
compensation; injunctions. An employer required to
secure the payment of compensation under this
section who fails to secure compensation shall be
guilty of a misdemeanor, and upon conviction
thereof, shall be subject to a fine of not less than
$100.00 nor more than $1,000.00. In addition, an
employer
required
to
secure
the
payment
of
compensation under this section who fails to secure
the compensation shall be liable for two times the
amount of compensation which would have otherwise
been payable for injury or death to an employee.
The director may apply to a court of competent
jurisdiction
for
an
injunction
to
restrain
threatened or continued violation of any provisions
relating to the requirements of insurance or
self-insurance.
The
court
may
impose
civil
penalties against an employer in noncompliance with
this amendatory act, in an amount not to exceed
1061379
12
$100.00 per day. Subsequent compliance with this
amendatory act shall not be a defense."
(Emphasis added.)
Section 25-5-8(e) provides four distinct, separate
penalties or remedies for failure to secure the payment of
compensation for an employee's injury or death: (a) a criminal
penalty in the form of a fine paid to the State; (b) a civil
penalty in the form of double compensation; (c) equitable
relief, which may be sought by the director of the DIR; and
(d) civil penalties that may be imposed by the trial court.
Section 25-5-8(e) does not state that a claimant must seek the
double-compensation penalty contemporaneously with filing a
claim for workers' compensation benefits pursuant to § 25-5-
31. Indeed, the amount of the penalty cannot be determined
until the amount of the liability is ascertained. In a
setting where the amount of the liability is in dispute, § 25-
5-8(e) cannot reasonably be construed as requiring that a
claim for the double-compensation penalty be asserted in the
complaint in the action for workers' compensation benefits.
Moreover, as Judge Thompson noted in his dissent to the Court
of Civil Appeals' opinion in this case:
"I
do
not
read the penalty
provision §
25-5-8(e), Ala. Code 1975, as being limited to an
1061379
13
original workers' compensation judgment. Nothing in
§ 25-5-8 precludes the filing of a motion seeking
double compensation in conjunction with a motion for
contempt when, as in this case, the employer has
failed to pay the judgment. In fact, limiting the
application of § 25-5-8(e) to allowing awards of
double
compensation only in original workers'
compensation judgments, as the main opinion seems to
advocate,
might
allow
employers,
either
intentionally or unintentionally, to avoid the
application of the penalty provision of § 25-5-8(e)
by paying benefits until the expiration of the time
allowed to modify an original judgment."
(Emphasis added.)
The general rule in Alabama has long been "'that
[workers'] compensation statutes will be liberally construed
to effect their beneficent purposes.'" Ex parte Steelcase,
Inc., 893 So. 2d 429, 432 (Ala. 2004) (quoting Ex parte Beaver
Valley Corp., 477 So. 2d 408, 411 (Ala. 1985)). In view of
the
aforementioned
standard,
the
previously
recognized
mandatory status of the penalty, and the absence of specific
direction from the legislature requiring assertion of a claim
for
the
double-compensation
penalty
earlier
than
in
proceedings to enforce the judgment, where, as here, the
employer's noncompliance with its obligation to secure the
payment of compensation first comes to light, we decline to
confine a proceeding seeking a penalty under § 25-5-8(e)
within the strictures of motion practice under Rule 59. The
1061379
14
mechanisms in § 25-5-8(e) for assuring the ability of a
defendant to pay a judgment in a workers' compensation case
fall into that category of statutory provisions that justifies
displacement of an otherwise applicable procedural rule. See
Rule 81(a).
Conclusion
The Court of Civil Appeals incorrectly held that Ruggs's
motion to enforce the judgment was a Rule 59(e), Ala. R. Civ.
P., motion and that it was untimely filed. The judgment of
the Court of Civil Appeals is therefore reversed, and this
matter is remanded to that court for proceedings consistent
with this opinion.
REVERSED AND REMANDED.
See, Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur. | August 22, 2008 |
22e6438c-c78a-4423-98c3-22048c1f2627 | The Cadle Company v. David Shabani a/k/a Aziz Shabani and AmSouth Bank | N/A | 1070116 | Alabama | Alabama Supreme Court | Regions Bank, by merger, has become the successor to the
1
Bank. That merger, however, is not relevant to our
disposition of this case.
Rel: 09/05/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
________________________
1070116
_________________________
The Cadle Company
v.
David Shabani, a/k/a Aziz Shabani, and AmSouth Bank
Appeal from Jefferson Circuit Court
(CV-04-5665)
WOODALL, Justice.
The Cadle Company ("Cadle") appeals from a summary
judgment for David Shabani, a/k/a Aziz Shabani, and AmSouth
Bank ("the Bank"), in Cadle's ejectment action against
1
1070116
2
Shabani and the Bank. We dismiss the appeal, vacate all
judgments and orders in this action, and dismiss the action.
This is the second appeal in Jefferson Circuit Court case
no. CV-04-5665. See Cadle Co. v. Shabani, 950 So. 2d 277
(Ala. 2006), which involved a summary judgment entered on
September 8, 2005 ("the first summary judgment"). The first
summary judgment, in favor of Shabani and the Bank and against
Cadle based on the parties' motions and cross-motions,
purported to address substantive facts and issues materially
identical to those argued by the parties in this appeal.
Those facts are fully set forth in Shabani and will be
only summarily stated here. The dispute involves the
execution of a judgment entered in the Jefferson Circuit Court
in case no. CV-90-4081 in favor of American Express Travel
Related Services Company, Inc. ("AMEX"), against Shabani,
which judgment was allegedly assigned to Cadle. The subject
of the execution was real estate owned by Shabani and
mortgaged to the Bank. At a sale of the real estate by the
Jefferson County Sheriff, AMEX -- the judgment creditor and
alleged assignor -- purchased the property. A sheriff's deed
was issued in the name of AMEX. 950 So. 2d at 278.
1070116
3
We could not address the merits of the dispute in
Shabani, because we determined that the trial court lacked
subject-matter jurisdiction. We said:
"On our own motion, we vacate the trial court's
judgment because we conclude that [Cadle] lacked
standing to bring the ejectment action. In order to
maintain an action for ejectment, a plaintiff must
allege either possession or legal title, and the
'action must be commenced in the name of the real
owner of the land or in the name of the person
entitled to possession thereof....' § 6-6-280, Ala.
Code 1975; see Morris v. Yancey, 267 Ala. 657, 659,
104 So. 2d 553, 555 (1958) ('to authorize the
recovery by the plaintiff, it must be made to appear
by the evidence that plaintiff, at the commencement
of the suit, had the legal title to the land sued
for'); Douglass v. Jones, 628 So. 2d 940, 941 (Ala.
Civ. App. 1993) (beneficiary of will lacked standing
to maintain ejectment because title of property
remained with estate).
"The ejectment complaint filed by [Cadle] in
this case alleged that it held title to the subject
property. It is clear, however, from the record
before us that [Cadle] could not prove that it held
title because the deed is titled to AMEX. Although
[Cadle] is undisputedly the assignee of the judgment
initially taken by AMEX against Shabani, there is no
evidence indicating that [Cadle] is also the
assignee of the sheriff's deed in favor of AMEX.
Although the trial court in this case acknowledged
that [Cadle] did not have title to the property, it
nonetheless resolved the case on the merits ....
Because [Cadle] lacked standing to maintain the
ejectment action, the trial court lacked subject-
matter jurisdiction over this case, and its
resulting judgment is therefore void. Carey v.
Howard, 950 So. 2d 1131 (Ala. 2006)."
1070116
The sheriff was eventually dismissed from the action, and
2
a default judgment was entered against AMEX.
4
Shabani, 950 So. 2d at 279 (emphasis added). Thus, we vacated
the summary judgment and dismissed the appeal, because a void
judgment will not support an appeal. 950 So. 2d at 280.
Despite our holding on July 28, 2006, that the trial
court lacked subject-matter jurisdiction in case no. CV-04-
5665, litigation in the case proceeded apace. For example, on
August 25, 2006, Cadle filed a motion to reform the sheriff's
deed. On September 18, 2006, the trial court entered an order
stating, in pertinent part: "This court having considered
[Cadle's] motion to reform sheriff's deed and the responses to
said motion filed by defendants, it is hereby ... ordered
[that] the court shall retain jurisdiction of the matter for
thirty (30) days from the date hereof in order to allow
[Cadle] to amend its complaint." (Emphasis added.) On
October 11, 2006, Cadle amended its complaint to add the
sheriff and AMEX as defendants. Later, the trial court
entertained renewed motions and cross-motions for a summary
judgment. On September 13, 2007, the trial court purported to
enter a second summary judgment in favor of Shabani and the
Bank and against Cadle, resulting in this appeal. The
2
1070116
5
language in the second summary judgment essentially mirrored
the language in the first summary judgment.
It is clear that all the parties, as well as the trial
court, have failed to understand the import of our
determination in Shabani that subject-matter jurisdiction is
lacking. The significance of the jurisdictional defect
pointed out in Shabani has been ignored by the parties in this
appeal. Nevertheless, we are "'duty bound to notice ex mero
motu the absence of subject-matter jurisdiction.'" Baldwin
County v. Bay Minette, 854 So.2d 42, 45 (Ala. 2003) (quoting
Stamps v. Jefferson County Bd. of Educ., 642 So. 2d 941, 945
n. 2 (Ala. 1994)).
Perhaps the trial court and the parties assumed that the
jurisdictional defect created by Cadle's lack of standing to
commence this ejectment action was cured by the pleading
purporting to amend the complaint to add additional parties.
If so, they were mistaken. Standing is "'"[t]he requisite
personal interest that must exist at the commencement of the
litigation."'" Pharmacia Corp. v. Suggs, 932 So. 2d 95, 98
(Ala. 2005)(quoting In re Allison G., 276 Conn. 146, 156, 883
A. 2d 1226, 1231 (2005), quoting in turn H. Monaghan,
Constitutional Adjudication: The Who and When, 82 Yale L.J.
1070116
6
1363, 1384 (1973)). "When a party without standing purports
to commence an action, the trial court acquires no subject-
matter jurisdiction." State v. Property at 2018 Rainbow
Drive, 740 So. 2d 1025, 1028 (Ala. 1999). The jurisdictional
defect resulting from the plaintiff's lack of standing cannot
be cured by amending the complaint to add a party having
standing. Id. ("[A] pleading purporting to amend a complaint,
which complaint was filed by a party without standing, cannot
relate back to the filing of the original complaint, because
there is nothing 'back' to which to relate."). See also Grand
Lodge of Fraternal Order of Police v. Vann, 344 So. 2d 1212,
1214 (1977) ("We are unaware of any case where any court has
reached a substantive issue absent a named plaintiff who has
standing at the time the action was filed."). Thus, when, on
September 18, 2006, the trial court entered an order
purporting to "retain jurisdiction of the matter for thirty
(30) days ... in order to allow [Cadle] to amend its
complaint," it had no jurisdiction to retain. Indeed, since
July 28, 2006, the date this Court issued its opinion in
Shabani, case no. CV-04-5665 has been, and is, over.
When the absence of subject-matter jurisdiction is
noticed by, or pointed out to, the trial court, that court has
1070116
7
no jurisdiction to entertain further motions or pleadings in
the case. It can do nothing but dismiss the action forthwith.
"'Any other action taken by a court lacking subject matter
jurisdiction is null and void.'" Rainbow Drive, 740 So. 2d at
1029 (quoting Beach v. Director of Revenue, 934 S.W.2d 315,
318 (Mo. Ct. App. 1996)). Thus, upon our issuance of the
opinion in Shabani, the trial court was duty bound to dismiss
this action.
It follows that every order and judgment entered in case
no. CV-04-5665 is void. Every order and judgment entered
since the issuance of our opinion on July 28, 2006, is
vacated; this appeal is dismissed as being from a void
judgment; and case no. CV-04-5665 is hereby dismissed for lack
of subject-matter jurisdiction.
JUDGMENT VACATED; APPEAL DISMISSED; CASE DISMISSED.
See, Lyons, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., concurs in the result.
Murdock, J., dissents.
1070116
8
COBB, Chief Justice (concurring in the result).
Under other circumstances, I would find Justice Murdock's
dissent persuasive, particularly with respect to the savings
in judicial resources that would be effected if the filing and
prosecution of an entirely new legal action could be avoided.
However, under the circumstances of this case, it does not
appear to me that the jurisdictional impediment first noted in
Cadle Co. v. Shabani, 950 So. 2d 277 (Ala. 2006), was ever
removed. Accordingly, I concur in the result.
1070116
9
MURDOCK, Justice (dissenting).
The main opinion finds that the parties and the trial
court "failed to understand the import" of the jurisdictional
defect pointed out in Cadle Co. v. Shabani, 950 So. 2d 277
(Ala. 2006) ("Shabani I"). Respectfully, I disagree.
In Shabani I, this Court's mandate did not include an
instruction to the trial court to enter a judgment in favor of
Shabani. Nor did it include an instruction to the trial court
to dismiss the action. Instead, this Court merely vacated the
particular judgment that had been entered. For all that
appears from the opinion (and the only thing that was
necessary for this Court to decide), Cadle simply did not have
standing to assert the particular claims alleged in the
complaint as it existed at the time of the judgment reviewed
in Shabani I.
On remand, therefore, Cadle apparently reasoned --
understandably in my view -- that if the problem was its lack
of standing to bring the particular claims it had alleged in
the original complaint, that problem could be solved simply by
amending the complaint to assert claims that it did have
standing to assert. That is all it did. Its doing so, and
the parties and the trial court's decision to proceed with the
1070116
10
litigation thereafter, did not conflict with this Court's
decision that the original judgment entered by the trial court
must be vacated.
Had it been necessary for the amendment to the complaint
filed by Cadle on remand to relate back to the filing of the
original complaint, that would be a different matter. The
amendment would be ineffective for that purpose. Such is the
import of this Court's seminal decision in State v. Property
at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999), in
which this Court stated that "a pleading purporting to amend
a complaint, which complaint was filed by a party without
standing, cannot relate back to the filing of the original
complaint, because there is nothing 'back' to which to
relate."
The original complaint in Rainbow Drive was filed by the
City of Gadsden, seeking a "condemnation and forfeiture" of
property under § 20-2-93, Ala. Code 1975. The City, however,
did not have authority under that statute to initiate such an
action. It was not until another 15 months had passed (and an
even greater time had passed from the actual seizure of the
subject property) that the City of Gadsden and the State of
Alabama jointly moved the trial court to "'amend the complaint
1070116
11
... to add the State of Alabama as a party plaintiff.'" 740
So. 2d at 1027. This delay occurred against the backdrop of
a procedural statute that required the "'Attorney General of
the state to institute at once or cause to be instituted
condemnation proceedings in the circuit court by filing a
complaint in the name of the State against the property
seized....'" 740 So. 2d at 1027 (quoting § 28-4-286, Ala. Code
1975 (emphasis added)). Accordingly, the opinion of this
Court in Rainbow Drive necessarily was concerned with whether
the City and State's efforts to add the State as a plaintiff
well over a year after the arrest of the defendant and the
seizure of his property would "'relate[] back,' pursuant Ala.
R. Civ. P. 15(c), to the date the original complaint was
filed." 740 So. 2d at 1027. The Court made clear that it was
concerned with whether the defect in the City's original
complaint could "'be cured nunc pro tunc back to the date when
the original complaint was filed.'" 740 So. 2d at 1028
(quoting Tyler House Apartments, Ltd. v. United States, 38
Fed. Cl. 1, 7 (Fed. Cl. 1997)).
Rainbow Drive relied upon three federal cases, all of
which addressed the efficacy of amendments to complaints in
the context of whether they related back to the date the
1070116
12
original complaint was filed. Tyler House Apartments, Ltd.,
supra, involved an attempt by a party without standing to
acquire a cause of action after the party had already filed an
action and after the statute of limitations had run. GAIA
Techs., Inc. v. Reconversion Techs., Inc., 93 F.3d 774 (Fed.
Cir. 1996), did not involve an amendment to a complaint adding
a party or a new claim. Instead, in that case, the plaintiff
attempted, after filing an action to vindicate certain
intellectual-property rights, to acquire those particular
rights. The GAIA court was concerned with whether the
plaintiff's actions could effect a "nunc pro tunc assignment
of
patent and trademark
rights" "sufficient
to
confer standing
on GAIA retroactively." 93 F.3d at 779. Finally, in Reynolds
v. United States, 748 F.2d 291, 292 (5th Cir. 1984), the court
was concerned, as was the court in Tyler House, with whether
an amended complaint "should have 'related back' under Rule
15(c), Fed. R. Civ. P.," because, if it did not, it would be
barred by the applicable statute of limitations, which had run
in the interim between the filing of the original complaint
and the plaintiff's attempt to file the amended complaint.
748 F.2d at 293.
1070116
I further note that neither Rainbow Drive nor Beach
3
imposes a time limit on when the trial court must dismiss the
action. Neither of those cases requires that the trial court
dismiss the action so quickly as to frustrate an otherwise
proper attempt by a plaintiff to cure a pleading defect that
contributed to the standing problem in the first place. The
main opinion represents the first example of which I am aware
of this Court's appending the word "forthwith" to the general
statement that the trial court must dismiss an action in which
the allegations of the complaint are not sufficient to invest
the court with subject-matter jurisdiction. ___ So. 2d at
___.
13
The case of Beach v. Director of Revenue, 934 S.W.2d 315,
318 (Mo. Ct. App. 1996), cited by the Rainbow Drive Court for
the proposition that when a court lacks subject-matter
jurisdiction, it must dismiss the action and that "'[a]ny
other action taken by a court lacking subject matter
jurisdiction is null and void,'" 740 So. 2d at 1029, did not
involve an amendment to a complaint that, if allowed, would
give rise from the time of that amendment to a viable action
brought by a party with proper standing. Instead, as in Tyler
House and Reynolds, the plaintiff's attempt in Beach to amend
his complaint came only after the expiration of a deadline for
seeking judicial review. Therefore, it was indeed true that
the only action the trial court could take was to dismiss the
petition before it. 934 S.W.2d at 317.3
1070116
The Advisory Committee Notes to the 1966 Amendment of
4
Rule 15(c), Fed. R. Civ. P., explains that, the relation-back
doctrine "is intimately connected with the policy of the
statute of limitations." See also 6A Charles Alan Wright
et al., Federal Practice and Procedure § 1496 at 64-65 (2d ed.
1990) (explaining that the purpose of Rule 15(c) is to allow
a plaintiff to avoid the preclusive effect of statute of
limitations). Thus, the operative principle in the above-
discussed cases in not applicable here because we are not
engaging the relation-back mechanism of Rule 15(c) in an
effort to "cure" a jurisdictional defect nunc pro tunc.
Instead, we have here a situation where the amended complaint
becomes the operative pleading for purposes of evaluating the
trial court's subject-matter jurisdiction on remand. This
result draws support from the United States Supreme Court
decision in Rockwell Int'l Corp. v. United States, ___ U.S.
___, ___, 127 S.Ct. 1397, 1409 (2007), in which the Justices
stated that "when a plaintiff files a complaint in federal
court and then voluntarily amends the complaint, courts look
to the amended complaint to determine jurisdiction." See also
InterGen N.V. v. Grina, 344 F.3d 134, 145 (1st Cir. 2003)
14
In the present case, however, the viability of Cadle's
amended complaint does not depend on its ability to relate
back to anything. It is not necessary that there be anything
"back" to which Cadle's amended complaint can relate. This is
so because, unlike Rainbow Drive and the cases upon which the
Court based its decision in that case, between the time of the
filing of the original complaint and the filing of the amended
complaint, no statute of limitations ran and no other temporal
bar arose. Unlike Rainbow Drive, it is enough that Cadle's
claim for reformation was viable beginning merely on the date
it was filed.
4
1070116
(stating holding that, under ordinary rules of pleading and
practice,
the
amended
complaint replaces the original
complaint).
15
Because there is no concern in this case, as there was in
Rainbow Drive and the cases it relied upon, as to whether
Cadle's amended complaint relates back to the time of the
filing of the original complaint, the proper result in the
present case is suggested by the following discussion in
Pressroom Unions—Printers League Income Security Fund v.
Continental Assurance Co., 700 F.2d 889 (2d Cir. 1983):
"Though we have previously recognized that an
amendment adding a party that brings the case within
a district court's jurisdiction can be granted,
Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d
Cir.), cert. denied, 313 U.S. 559 (1941), such an
amendment, where new service is required, does not
relate back to the original suit, and would be a new
action, id.; York v. Guaranty Trust Co., 143 F.2d
503, 518 (2d Cir. 1944) (construing Hackner), rev'd
on other grounds, 326 U.S. 99 (1945). In such
circumstances, the district court has discretion
whether to permit the 'amendment,' ... and Judge
Conner properly exercised his discretion to deny the
motion to amend after noting that possible statute
of limitations defenses distinguished this case from
Hackner, where no such obstacles appeared."
700 F.2d at 893 n. 9 (emphasis added).
As the United States Court of Appeals for the Second
Circuit opined in the case of Hackner v. Guaranty Trust Co. of
New York, 117 F.2d 95 (2d Cir. 1941), a trial court's allowing
1070116
16
the parties to amend the pleadings so as to allege a viable
claim over which the court has subject-matter jurisdiction
does not contravene the fundamental principle that a court
without subject-matter jurisdiction may not address the merits
of the case before it:
"Since [the plaintiff] alleges grounds of suit in
the federal court, the only question is whether or
not she must begin a new suit again by herself.
Defendants'
claim
that
one
cannot
amend
a
nonexistent action is purely formal, in the light of
the wide and flexible content given to the concept
of action under the new rules. Actually [the
plaintiff] has a claim for relief, an action in that
sense; as ... the Supreme Court has pointed out,
there is no particular magic in the way it is
instituted. Chisholm v. Gilmer, 299 U.S. 99
[(1936)], ... upholding a suit instituted by mere
motion for judgment. ... So long as a defendant
has had service 'reasonably calculated to give him
actual notice of the proceedings,' the requirements
of due process are satisfied. ... Hence no
formidable obstacle to a continuance of the suit
appears here, whether the matter is treated as one
of amendment or of power of the court to add or
substitute
parties,
Federal
Rule
21,
or
of
commencement of a new action by filing a complaint
with the clerk, Rule 3. In any event we think this
action can continue with respect to [the plaintiff]
without the delay and expense of a new suit ....
"....
"Where new service of process is required, it
would appear that [the plaintiff's] claim would not
relate back to the date of original suit .... But
that issue is not one of jurisdiction, but of time
and manner of its exercise."
117 F.2d at 98-99 (emphasis added).
1070116
17
In Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826
(1989), the United States Supreme Court began its analysis of
subject-matter
jurisdiction
by
observing
the
general
principle
that "[t]he existence of federal jurisdiction ordinarily
depends on the facts as they exist when the complaint is
filed." 490 U.S. at 830. The Court then went on to discuss
an exception to this general rule in the form of Rule 21 of
the Federal Rules of Civil Procedure, which allows parties to
be added or dropped at any stage of the proceedings,
discussing in the process the earlier case of Mullaney v.
Anderson, 342 U.S. 415 (1952):
"Almost every modern Court of Appeals faced with
this issue has concluded that it has the authority
to dismiss a dispensable nondiverse party by virtue
of Rule 21. ... [W]e are reluctant to disturb this
well-settled judicial construction, particularly
when there is no evidence that this authority has
been abused by the courts of appeals (or the
district courts for that matter). Furthermore, we
have ourselves exercised a similar authority under
Rule 21. In Mullaney v. Anderson, 342 U.S. 415
(1952),
the
defendant
first
questioned
the
plaintiff-union's standing to bring suit when the
case reached this Court. Relying explicitly on Rule
21, we avoided deciding the standing issue by
granting the union's motion to add as parties two of
its
members.
Although
we
did
not
discuss
extensively Rule 21's applicability in the appellate
setting, we did note that the change in the parties
would
not
have
'affected
the
course
of
the
litigation' if it had occurred at some earlier
point, and would not 'embarrass the defendant.'
Id., at 417. The Court further remarked that
1070116
Nor does the fact that it is this Court, an appellate
5
court, that brought the jurisdictional defect in the original
complaint to the plaintiff's attention, rather than the
opposing party or the trial court, make it any more necessary
that the plaintiff start over with its action. See generally
6 Charles Alan Wright et al., Federal Practice and Procedure
§ 1488 at 652-57 (2d ed. 1990) ("Quite appropriately, the
courts have not imposed any arbitrary time restrictions on a
party's leave to amend and permission has been granted under
Rule 15(a) at various stages of the litigation ... even on
remand following an appeal."). A lower court to which a case
has been remanded may permit new issues to be presented by an
amended pleading that is consistent with the judgment of the
appellate court. 6 Wright, § 1489 at 698-99.
I also note that a court may constitutionally exercise
jurisdiction over a case even though it does not secure solid
jurisdictional footing until some time after the case has been
18
dismissing the petition and thereby requiring the
plaintiffs to start over in the District Court
'would entail needless waste and runs counter to
effective judicial administration.' Ibid."
490 U.S. at 833 (emphasis added) (footnote omitted).
In the present case, unlike in Pressroom Unions, there
was no "possible statute of limitations defense" that would
call into question the trial court's discretionary decision to
allow Cadle to amend its complaint to state a viable cause of
action, seeking reformation of the sheriff's deed, which Cadle
had standing to bring. I see no compelling reason it should
not have been allowed to do so, rather than requiring it to
incur the additional time and expense associated with
initiating an entirely new action.
5
1070116
brought. See, e.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61,
73
(1996)
(curing
a
wrongful
exercise
of
removal
jurisdiction); Newman-Green, 490 U.S. at 837 (involving
dropping a party in order to cure a jurisdictional defect).
19
By looking to the amended, rather than the original,
complaint, the trial court here will not have, on the basis of
the problematic original complaint, "assumed jurisdiction for
the purpose of deciding the merits." Steelco v. Citizens for
a Better Env't, 523 U.S. 83, 94 (1998). It will have
exercised authority over the case only for the purpose of
addressing, or allowing the plaintiff to address, issues
pertaining to the court's own jurisdiction. See generally Ex
parte Textile Workers Union of America, 249 Ala. 136, 141, 30
So. 2d 247, 250 (1947) ("It is an accepted principle that
every court of general jurisdiction has the judicial power to
determine the question of its own jurisdiction.").
Based on the foregoing, I dissent from the decision in
the main opinion to vacate the judgment, dismiss the case, and
dismiss this appeal. I do not think the trial court was
without jurisdiction
to
enter
the second
summary
judgment, and
I would proceed to consider this case on its merits. | September 5, 2008 |
9d50dc00-b7f3-4ab5-8d7a-8b2866928081 | Francis Price Crosslin v. Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital, and Thomas J. Calvert, M.D. | N/A | 1051537 | Alabama | Alabama Supreme Court | REL: 9/12/08
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
____________________
1051537
____________________
Francis Price Crosslin
v.
Health Care Authority of the City of Huntsville d/b/a
Huntsville Hospital, and Thomas J. Calvert, M.D.
Appeal from Madison Circuit Court
(CV-06-377)
MURDOCK, Justice.
Francis Price Crosslin appeals from a judgment of
dismissal by the Madison Circuit Court in his medical-
malpractice action against the Health Care Authority of the
1051537
2
City of Huntsville d/b/a Huntsville Hospital ("Huntsville
Hospital") and Thomas J. Calvert, M.D. We reverse.
I. Facts and Procedural History
On February 23, 2002, Crosslin presented himself at the
emergency room at Huntsville Hospital complaining of nausea,
dizziness, and weakness. Dr. Calvert evaluated Crosslin and
ordered a CT scan of Crosslin's head, an electrocardiogram, a
chest X-ray, and a blood count. The CT scan was performed at
Huntsville Hospital later the
same day.
Immediately
following
the CT scan, a radiologist reviewed the images produced by the
scan and issued a preliminary radiology report. This report
indicated that Crosslin had a tumor on his pituitary gland.
Later in the day, Dr. Calvert spoke with Crosslin concerning
his condition, but he failed to inform him of the findings of
the preliminary radiology report indicating that he had a
pituitary tumor. There is no allegation that the symptoms
from which Crosslin suffered on February 23, 2002, were
related to the existence of the pituitary tumor. Thereafter,
Crosslin was discharged from Huntsville Hospital.
On September 1, 2005, Crosslin presented himself at
Huntsville Hospital complaining of a loss of vision in his
1051537
3
left eye and decreased vision in his right eye. A CT scan of
Crosslin's head again indicated the presence of the pituitary
tumor that had been identified by means of the previously
performed CT scan. It was on this date, according to
Crosslin, that he first learned of the pituitary tumor. He
alleges that he was unaware before this date of any facts that
would have reasonably led to the discovery of the tumor.
On September 3, 2005, surgery was performed on Crosslin
to remove the tumor. Since the time of the surgery,
Crosslin's vision has not improved, and he presently suffers
from blindness and/or severely limited vision in both eyes.
On February 24, 2006, Crosslin filed the present medical-
malpractice
action
against
Huntsville
Hospital
and
Dr. Calvert. He alleged that Huntsville Hospital and Dr.
Calvert were negligent and wanton by failing to inform him of
the existence of the pituitary tumor that was identified by
the 2002 CT scan. He alleged that, as a direct and proximate
result of Huntsville Hospital's and Dr. Calvert's negligence
and wantonness, he suffered severe bodily injury, including
blindness or severely limited vision in both eyes. He also
1051537
4
included allegations of negligence and wantonness against
numerous fictitiously named defendants.
On March 16, 2006, Huntsville Hospital and Dr. Calvert
filed a motion to dismiss pursuant to Rule 12(b)(6), Ala. R.
Civ. P. On March 29, 2006, they filed a brief in support of
their motion. In their brief, Huntsville Hospital and
Dr. Calvert argued:
"The alleged breach of the standard of care in this
case was a failure to inform Mr. Crosslin of the
presence of a pituitary tumor on February 23, 2002.
If the defendants breached the standard of care and
caused damages as Crosslin claims, Crosslin would
have been damaged on the same date as the alleged
negligence, because he was already suffering from
the tumor."
Because Crosslin did not file his complaint until four years
and one day after February 23, 2002, they argued, Crosslin's
action was barred by § 6-5-482(a), Ala. Code 1975, a part of
the Alabama Medical Liability Act, Ala. Code 1975, §§ 6-5-480
to -488 ("the AMLA").
On May 18, 2006, Crosslin amended his complaint to allege
that he suffered bodily injury after February 24, 2002, as a
direct and proximate result of Huntsville Hospital's and
Dr. Calvert's alleged negligence and wantonness. On that same
day, Crosslin filed a response to Huntsville Hospital and
1051537
5
Dr. Calvert's motion to dismiss. He argued that his cause of
action did not accrue until he suffered an injury, which,
according to his amended complaint, allegedly happened after
February 24, 2002. Thus, he argued, his complaint was not
barred by § 6-5-482(a).
On June 14, 2006, the trial court granted Huntsville
Hospital and Dr. Calvert's motion to dismiss. In its order
entering the judgment of dismissal in their favor, the trial
court stated:
"All claims asserted against the Hospital and Dr.
Calvert by the plaintiff, Francis Price Crosslin,
are hereby DISMISSED, with prejudice, because the
claims are barred by the statute of limitations
contained in Ala. Code § 6-5-482 (1975). The
allegations
of
[Crosslin's]
own
complaint
demonstrate that the claims were filed more than
four years after the date on which the cause of
action accrued, which means the claims are barred as
a matter of law."
(Capitalization in original.) Crosslin filed a postjudgment
motion seeking to have the trial court reconsider its
dismissal, which the trial court denied. Crosslin appeals.
II. Standard of Review
In considering whether a complaint is sufficient to
withstand a motion to dismiss under Rule 12(b)(6), Ala. R.
Civ. P., a court "must accept the allegations of the complaint
1051537
6
as true." Creola Land Dev., Inc. v. Bentbrooke Housing,
L.L.C., 828 So. 2d 285, 288 (Ala. 2002) (emphasis omitted).
"'The appropriate standard of review under Rule 12(b)(6)[,
Ala. R. Civ. P.,] is whether, when the allegations of the
complaint are viewed most strongly in the pleader's favor, it
appears that the pleader could prove any set of circumstances
that would entitle [it] to relief.'" Smith v. National Sec.
Ins. Co., 860 So. 2d 343, 345 (Ala. 2003) (quoting Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993)). In determining
whether this is true, a court considers only whether the
plaintiff may possibly prevail,
not
whether the
plaintiff will
ultimately prevail. Id. Put another way, "'a Rule 12(b)(6)
dismissal is proper only when it appears beyond doubt that the
plaintiff can prove no set of facts in support of the claim
that would entitle the plaintiff to relief.'" Id. (emphasis
added). Specifically, with regard to an affirmative defense
like the one that is the basis of Huntsville Hospital and Dr.
Calvert's motion in the present case, the standard for
granting a motion to dismiss is "'whether the existence of the
affirmative defense appears clearly on the face of the
pleading.'" Jones v. Alfa Mut. Ins. Co., 875 So. 2d 1189,
1051537
7
1193 (Ala. 2003) (addressing the affirmative defense of the
statute of limitations) (quoting Braggs v. Jim Skinner Ford,
Inc., 396 So. 2d 1055, 1058 (Ala. 1981)).
III. Analysis
Crosslin points out that his amended complaint alleges
that he was injured sometime after February 24, 2002, as a
result of Huntsville Hospital's and Dr. Calvert's alleged
failure to inform him of the existence of the pituitary tumor
discovered by the CT scan taken on February 23, 2002. Thus,
he argues, his complaint is not inconsistent with his
ultimately proving a set of facts under which his claim would
not be barred, i.e., that his complaint was filed within four
years of the date on which his cause of action accrued.
Section 6-5-482(a), Ala. Code 1975, provides, in
pertinent part:
"(a) All actions against physicians, surgeons,
dentists, medical institutions, or other health care
providers for liability, error, mistake, or failure
to cure, whether based on contract or tort, must be
commenced within two years next after the act, or
omission, or failure giving rise to the claim, and
not afterwards; provided, that if the cause of
action is not discovered and could not reasonably
have been discovered within such period, then the
action may be commenced within six months from the
date of such discovery or the date of discovery of
facts which would reasonably lead to such discovery,
1051537
Consistent with the cases cited, in both the trial court
1
and in this Court both parties have framed the dispositive
issue as when Crosslin's cause of action accrued. Our review
8
whichever is earlier; provided further, that in no
event may the action be commenced more than four
years after such act ...."
The parties do not dispute that the present action is governed
by the AMLA. The parties likewise do not dispute that, under
the allegations of the complaint, Crosslin is entitled to the
benefit of the six-month discovery rule contained in
§ 6-5-482(a), and, thus, that his complaint alone does not, on
its face, provide a basis for determining that his claims are
barred by the two-year statute of limitations. The only
question before this Court is whether the trial court erred
when it found that the affirmative defense that Crosslin's
action is barred by the above-quoted four-year limitation
"appears clearly on the face" of Crosslin's complaint.
This Court has held that the four-year period of repose
in § 6-5-482(a) "is an 'absolute bar to all medical
malpractice claims which are brought more than four years
after the cause of action accrues.'" Ex parte Sonnier, 707
So. 2d 635, 637 (Ala. 1997) (quoting Bowlin Horn v. Citizens
Hosp., 425 So. 2d 1065, 1070 (Ala. 1982)). "A cause of
1
1051537
is limited accordingly.
We note that the Grabert Court also quoted Street v. City
2
of Anniston, 381 So. 2d 26 (Ala. 1980), for the proposition
that "'in malpractice actions, legal injury occurs at the time
of the negligent act or omission, whether or not the injury is
or could be discovered within the statutory period.'"
Grabert, 571 So. 2d at 294 (quoting Street, 318 So. 2d at 31).
In making this statement, the Court was focused on a different
issue than the one before this Court in the present case. In
contrast to the present case, the focus of this statement was
9
action 'accrues' under § 6-5-482 when the act complained of
results in legal injury to the plaintiff." Mobile Infirmary
v. Delchamps, 642 So. 2d 954, 958 (Ala. 1994). "When the
wrongful act or omission and the resulting legal injury do not
occur simultaneously, the cause of action accrues and the
limitations period of § 6-5-482 commences when the legal
injury occurs." Id.; see also Grabert v. Lightfoot, 571 So.
2d 293, 294 (Ala. 1990) ("'The statutory limitations period
does not begin to run until the cause of action accrues. ...
A cause of action accrues when the act complained of results
in injury to the plaintiff.'" (quoting Colburn v. Wilson, 570
So. 2d 652, 654 (Ala. 1990))); Ramey v. Guyton, 394 So. 2d 2,
4 (Ala. 1981) (noting that when the negligent act and the
resultant harm do not coincide, the accrual date of a cause of
action under the AMLA is the date of the latter).2
1051537
the issue of discovery of an injury and, more specifically,
whether a failure to discover an injury postpones the accrual
of a cause of action based on the injury. (The six-month
discovery provision in § 6-5-482(a) was not applicable in
either Grabert or Street.) The quoted passage does not speak
to the situation where there is a failure of the injury and
the negligent act to occur simultaneously, but instead
presupposes
that the
injury
occurs
immediately
upon the
taking
place of the negligent act or omission. See Grabert
(involving a negligently performed surgery and a resultant
immediate physical injury to the plaintiff); Street, 381 So.
2d at 31 (rejecting the plaintiff's effort to distinguish
certain previous cases, and instead reconciling those cases
with Street on the ground that they involved the occurrence of
an injury "which resulted immediately upon the taking place of
the negligent act or omission"). In several medical-
malpractice cases decided after Street, this Court has held
that a legal injury does not necessarily occur at the same
time as the negligent act or omission causing the injury.
See, e.g., Mobile Infirmary v. Delchamps, 642 So. 2d at 958
(rejecting argument that there was no set of facts under which
the plaintiff could recover and holding that there was a right
to present evidence as to whether implants placed in the
plaintiff's jaw on December 5, 1985, did not result in "legal
injury until December 10, 1991, or some other time within two
years of the filing of [the] complaint"); Colburn v. Wilson,
570 So. 2d at 654 (to similar effect); and Ramey v. Guyton,
394 So. 2d at 4-5 (to similar effect).
10
In the present case, Crosslin has alleged that Huntsville
Hospital and Dr. Calvert failed to inform him that he had a
tumor on his pituitary gland on February 23, 2002. Crosslin
has alleged that, as a result of the failure of Huntsville
Hospital and Dr. Calvert to inform him of the existence of the
pituitary tumor, he later suffered vision loss in both of his
1051537
Unlike other cases in the which the medical provider's
3
negligence is the failure to treat an existing malady, see,
e.g., Tobiassen v. Sawyer, 904 So. 2d 258 (Ala. 2004), and
Grabert v. Lightfoot, supra, discussed infra, the medical
providers'
alleged
failure here, because of its unique
nature,
is not, in and of itself, alleged to have immediately caused
an actual injury to Crosslin.
For all that appears from the face of the complaint, the
4
tumor may not have grown or otherwise worsened until the
passage of a substantial amount of time following February 23,
2002.
11
eyes. Thus, it appears that the legal injury Crosslin is
alleging is that, because Huntsville Hospital and Dr. Calvert
did not inform him of the existence of the pituitary tumor
when it was discovered on February 23, 2002, he did not have
the condition remedied before the tumor worsened and other
physical injuries were caused by it.3
The allegations of the complaint, if taken as true, do
not foreclose the possibility of Crosslin's proving a set of
facts that would entitle him to relief. For example, the
evidence might show that the tumor was not in a growth phase
when Dr. Calvert first diagnosed it on February 23, 2002, and
therefore that the tumor did not worsen on that date. Nor do
4
the allegations of the complaint foreclose the possibility of
proof that, even if the tumor did worsen on February 23, 2002,
1051537
12
a disclosure of the presence of the tumor to Crosslin on
February 23, 2002, would likely not have resulted in surgery
on that same day so as to halt whatever worsening of his
condition otherwise would have occurred between that day and
the following day, February 24, 2002. Indeed, even after the
tumor was discovered in a much advanced state several years
later, surgery to remove it was not scheduled until two days
after its discovery. In other words, the complaint does not,
on its face, establish that Huntsville Hospital's and
Dr. Calvert's failure to inform Crosslin of the tumor on
February 23, 2002, resulted in any actual injury to Crosslin
before February 24, 2002, the first day of the four-year
period in question.
Relying on Grabert v. Lightfoot, supra, and Tobiassen v.
Sawyer, 904 So. 2d 258 (Ala. 2004), Huntsville Hospital and
Dr. Calvert argue that Crosslin necessarily sustained a legal
injury on February 23, 2002, the date they allegedly failed to
inform him of the existence of the pituitary tumor, and that,
therefore, his action is time-barred under § 6-5-482(a).
Grabert
and
Tobiassen,
however,
are
distinguishable
because
in
those
cases
the
act
of
alleged
medical
malpractice
immediately
1051537
13
caused an identifiable injury to the complaining party and
that injury fell outside the applicable time period, whereas,
in the present case, Crosslin's complaint does not foreclose
his ability to prove that the injury caused by Huntsville
Hospital's
and
Dr.
Calvert's
alleged
malpractice
did
not
occur
until some time after the actual act of malpractice and
therefore within the applicable time period.
In Grabert, the plaintiff was diagnosed with a hernia and
underwent surgery for the purpose of repairing it. During
that surgery, however, the surgeon failed to locate and repair
the hernia. After a second surgery to repair the hernia left
the plaintiff impotent, he sued the first surgeon because of
that surgeon's failure to remedy the hernia during the first
surgery. We held that the plaintiff's cause of action for
medical malpractice accrued on the date of the first surgery
because it was immediately after the first, unsuccessful
operation that the plaintiff was entitled to maintain an
action against the surgeon. Grabert, 571 So. 2d at 294.
1051537
As this Court stated: "[I]t is clear that Grabert was
5
damaged at the time of the first operation ...; he had a
hernia and Dr. Lightfoot failed to find or to remedy that
condition." Grabert, 571 So. 2d at 294.
14
Because of the alleged negligence of the first surgeon, the
plaintiff had "suffered" a surgery that availed him nothing.5
Unlike the malpractice at issue in Grabert, Dr. Calvert's
alleged failure to inform Crosslin of the existence of the
pituitary tumor did not, in and of itself, cause Crosslin any
actual injury. As explained above, Crosslin may be able to
prove a set of facts establishing that he suffered no actual
injury until within the applicable four-year period at issue.
Thus, our holding in Grabert does not compel a finding in this
case that Crosslin's injury arose at the time of Huntsville
Hospital's and Dr. Calvert's alleged negligent or wanton act
or omission.
Huntsville Hospital and Dr. Calvert's reliance on
Tobiassen is likewise misplaced. In that case, the plaintiff
presented himself for treatment at the emergency room of a
hospital, suffering from the following symptoms as a result of
a stroke: "'severe headache, impaired balance, numbness to
only one side of the body, and tingling on only one side of
1051537
15
the body.'" 904 So. 2d at 259. As the opinion notes, the
doctor who treated the plaintiff in the emergency room on that
day failed to discover the reason for the plaintiff's symptoms
and sent him home "'with no treatment for the stroke.'" 904
So. 2d at 261 n.2 and accompanying text. The plaintiff,
continuing to suffer symptoms from the stroke, returned to the
emergency room on the following day, at which time he was
admitted to the hospital; an additional three days passed
before he was told that he had suffered a stroke.
Two years and four days after he had first been treated
at the emergency room, the plaintiff sued the physician who
had treated him at the emergency room and the hospital at
which the emergency room was located. The plaintiff alleged
that the physician and hospital had negligently failed to
diagnose and treat the stroke the plaintiff had suffered. The
physician moved for a judgment on the pleadings, and the
hospital moved for a summary judgment, both arguing that the
plaintiff's claim was barred by the two-year statute of
limitations on medical-malpractice claims. After the trial
court denied the motions, this Court granted permission to
appeal. Reversing the trial court's order denying the
1051537
16
physician's and the hospital's motions and rendering a
judgment for both defendants, this Court held that the
plaintiff's cause of action accrued on his first visit to the
emergency room when the defendants failed to diagnose and
treat his stroke. Tobiassen, 904 So. 2d at 261.
Our holding in Tobiassen was fully justified under the
facts of that case. The plaintiff's injury from the
defendants' failure to diagnose and treat the plaintiff's
stroke was immediate.
In the present case, however, Crosslin has not alleged
when he was harmed as a result of the tumor remaining in his
body longer than it would have had Huntsville Hospital and
Dr. Calvert immediately informed him of its presence. The
complaint alleges only that injury occurred "after February
24, 2002." The allegations in Crosslin's complaint thus stand
in contrast to the circumstance presented in Tobiassen, where
the failure to diagnose and treat the stroke caused the
plaintiff to suffer an immediate legal injury.
IV. Conclusion
In the present case, it does not "'appear[] beyond doubt
that the plaintiff can prove no set of facts in support of
1051537
17
[his] claim that would entitle [him] to relief.'" Smith, 860
So. 2d at 345 (quoting Nance, 622 So. 2d at 299).
Specifically, the allegations of Crosslin's complaint, if
true, would not prevent Crosslin from proving a set of facts
establishing that he first suffered actual injury within the
four-year period immediately preceding the filing of his
complaint. Consequently, the trial court was incorrect in
concluding that Crosslin's action was due to be dismissed
under Rule 12(b)(6). We therefore reverse the trial court's
judgment and remand the cause for further proceedings.
REVERSED AND REMANDED.
Cobb, C.J., and Stuart, J., concur.
Lyons and Bolin, JJ., concur in part and concur in the
result.
1051537
18
LYONS, Justice (concurring in part and concurring in the
result).
I concur in the main opinion to the extent that it
concludes that the allegations of the complaint, even if taken
as true, do not foreclose the possibility of proof that
Crosslin's tumor was not in a "growth phase when Dr. Calvert
first diagnosed it on February 23, 2002," thereby creating a
fact situation where the tumor "did not worsen on that date."
___ So. 2d at ___. Our settled caselaw, discussed in the main
opinion, defers accrual of a cause of action to the date of
injury when the negligent act and the resultant harm do not
coincide. See, e.g., Ramey v. Guyton, 394 So. 2d 2 (Ala.
1980).
The main opinion then goes further, stating:
"Nor do the allegations of the complaint foreclose
the possibility of proof that, even if the tumor did
worsen on February 23, 2002, a disclosure of the
presence of the tumor to Crosslin on February 23,
2002, would likely not have resulted in surgery on
that same day so as to halt whatever worsening of
his condition otherwise would have occurred between
that day and the following day, February 24, 2002."
___ So. 2d at ___. The main opinion cites no authority for
deferral of accrual of a cause of action in the context of
impracticality
of
immediate
treatment,
notwithstanding
1051537
19
worsening condition. We have not yet considered this issue,
so far as my research has determined. Until such facts are
presented, making it necessary to decide the issue of deferral
of accrual by impracticality of immediate treatment, I express
no opinion, and, as to this aspect of the main opinion, I
concur only in the result.
Bolin, J., concurs. | September 12, 2008 |
c6d42dd5-b121-4dad-a39a-229b1bbca42f | Ex parte Walter Griffin. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Mary Howard v. Mac Equipment Company, Inc., et al.) | N/A | 1070727 | Alabama | Alabama Supreme Court | REL:08/29/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
SPECIAL TERM, 2008
_________________________
1070727
_________________________
Ex parte Walter Griffin
PETITION FOR WRIT OF MANDAMUS
(In re: Mary Howard
v.
Mac Equipment Company, Inc., et al.)
(Montgomery Circuit Court, CV-03-1707)
BOLIN, Justice.
Walter Griffin petitions this Court for a writ of
mandamus directing the trial court to dismiss as untimely Mary
Howard's claims against him. We deny the petition.
1070727
It is unclear what type of business entity Southeast
1
Pallet is.
2
Facts and Procedural History
Southeast Pallet and Box is in the business of recycling
1
wooden pallets and producing new pallets. In 2002, Southeast
Pallet hired Mac Equipment Company, Inc. ("Mac"), to design a
certain board-cutting machine for its plant. On April 23,
2003, Howard, who was employed by Southeast Pallet, was
injured while working at the machine designed by Mac. She had
never worked on this machine before the day she was injured.
A conveyor belt fed wooden boards into the machine. Howard
was told to keep the wooden boards in a straight line on the
conveyor belt and that if any boards fell to the ground, to
pick them up and place them back on the conveyor belt. While
Howard was working at the machine, Mark Fuhrlong, an employee
of Mac, was adjusting the machine. When Howard bent down to
pick up a board that had fallen from the conveyor belt, the
sleeve of her shirt got caught in the chain and sprocket of
the machine, severing her arm. The safety guard designed to
cover the chain and sprocket was not installed on the machine.
On the day of the accident, Walter Griffin was employed by
Southeast Pallet as a "gopher," picking up the mail, taking
1070727
3
deposits to the bank, and other small jobs. Walter had
recently sold his interest in Southeast Pallet to his son,
Woody Griffin.
Howard sued Southeast Pallet, seeking to recover worker's
compensation benefits for her injury. On June 27, 2003, in a
separate action Howard sued Mac and Fuhrlong, alleging
negligence and wantonness in designing, building, installing,
and adjusting the machine. She also sued several fictitiously
named defendants, including "the person, firm, corporation who
designed, manufactured, installed, set-up, and adjusted a
piece of machinery at Southeast Pallet and Box which caused
[Howard] to suffer serious bodily injury on the occasion
complained of in [Howard's] complaint" and "those persons,
firms or corporations responsible for providing and installing
a guard for the chain and sprockets for the machine
manufactured by the defendant Mac Equipment Co., all of whose
true names are otherwise unknown but will be substituted by
amendment when ascertained."
In response to discovery requests, Mac, on December 15,
2003, produced documents containing written quotes and
contracts prepared by Mac and sent to Southeast Pallet
1070727
4
regarding the design and specifications for the machine on
which Howard was injured. Two of the documents were addressed
to Walter Griffin at Southeast Pallet and one of the documents
was addressed to Woody Griffin at Southeast Pallet.
On February 3, 2004, Southeast Pallet filed a motion to
intervene in Howard's action against Mac and Fuhrlong, seeking
subrogation from Mac of the worker's compensation and medical
benefits Southeast Pallet paid to Howard. On August 19, 2004,
the trial court granted the motion.
On October 7, 2004, Howard filed a motion to amend her
complaint to assert a claim against her supervisor, Tony
Randall Emfinger, and other fictitiously named defendants.
Howard identified the fictitiously named defendants as "that
person or persons who were the supervisor(s) of [Howard] on
the occasion complained of in [Howard's] complaint" and "those
persons, firms, or corporations who violated § 25-5-11 of the
Code of Alabama 1975, on the occasion complained of in
[Howard's] complaint, all of whose true names are otherwise
unknown
but
will
be
substituted
by
amendment
when
ascertained."
Howard
alleged
that
Emfinger
and
the
fictitiously named defendants had violated § 25-5-11(c)(2),
1070727
5
Ala. Code 1975, by requiring her to work on a machine without
the safety guard in place with the knowledge that injury would
likely occur. On December 17, 2004, the trial court granted
the motion to amend.
Howard attempted to serve Emfinger on several occasions
at various addresses, but Emfinger had moved often, and
ultimately Howard served Emfinger on January 7, 2006. On
January 25, 2006, Emfinger filed an answer, pro se, stating
that he was not responsible for Howard's injuries and that
Walter Griffin had assigned Howard to work at the machine. On
January 31, 2006, Emfinger filed an affidavit stating, in
pertinent part:
"I was employed as a machine operator and
maintenance man. Mary Howard was taken to the back
of a board cutting machine by Walter Griffin. The
machine was kicking the boards sideways because the
blades were dull. Walter Griffin slid the machine
guard back which exposed the hydraulics and chain
drive. Management did not like to shut the machine
down because it cut into production time. Walter
Griffin had placed people here for about a week.
They were to keep the boards straight as they passed
through the machine. Several people had gotten
their hand caught in the machine doing this. I
reported this to Walter Griffin and Wayne Gill.
They did nothing about this. About two hours later
I heard one of the employees scream 'shut it off.'
I looked up and saw Mary caught up in the machine."
1070727
6
That same day, Howard filed a motion to again amend her
complaint, to substitute Walter Griffin as the fictitiously
named defendant who had supervised Howard and the fictitiously
named defendant who had violated § 25-5-11 by removing a
safety guard from the machine.
Mac had attempted to depose Walter Griffin in 2003 or
2004. On April 12, 2004, Mac sent Walter a "re-notice" of his
deposition set for May 19, 2004. Mac attempted to depose
Walter on July 22, 2005, but that deposition was canceled
because of work schedules at Southeast Pallet. Walter's
deposition was to be scheduled for September 2005, but the
deposition did not take place. On May 29, 2007, Walter was
deposed; he stated that he was not at the plant on the day of
Howard's accident, and he denied removing the safety guard
from the machine.
On October 1, 2007, Walter filed a motion for a summary
judgment, arguing that Howard's claims against him were time-
barred because Howard was not ignorant of his identity well
before she amended her complaint to name him as a defendant
and she did not use due diligence in substituting him for a
fictitiously named defendant so as to invoke the relation-back
1070727
7
principles of Rule 9(h) and Rule 15(c), Ala. R. Civ. P.
Specifically, Walter argues that Howard was aware that he was
involved with the design, performance, installation, and
operation of the board-cutting machine because of the
materials produced in discovery on December 15, 2003, which
were specifications and contracts regarding the machine and
which were addressed to Walter. Walter stated in the brief in
support of his summary-judgment motion:
"Shortly after her accident on April 23, 2003,
[Howard] retained an attorney. Her attorney advised
Southeast Pallet by way of a letter dated May 2,
2003, that [Howard] had retained his services....
The
letter
further
refers
to:
'Willful
and
intentional conduct on the part of your supervisors,
managers and officers in causing serious bodily
injury to Mary Howard in violation of 25-5-11 of the
Code of Alabama, 1975.' This letter further states
that 'the [board-cutting] machine was designed by
certain management employees [of Southeast Pallet]
with the assistance of Mac Equipment' and that it
'was designed in such a hazardous manner that it was
overwhelmingly foreseeable that someone would get
seriously injured while operating the machine.'...
Clearly [Howard] knew that someone at Southeast
Pallet was involved in the design of the machine
that injured her and that this person should be a
defendant.
"By December of 2003, [Howard] also had in her
possession the contracts/quotes between Mac and
Southeast Pallet regarding the design, requirements,
performance, construction and installation of the
machine
that
eventually injured her.... These
contract documents clearly reflect that Walter
1070727
8
Griffin
and
his
son
Woody
Griffin
were
the
representatives of Southeast Pallet who were working
with Mac.
"[Howard] also had the address of Southeast
Pallet and could have propounded subpoenas or taken
depositions to develop this information further.
She knew of the identity of Walter Griffin by
December 15, 2003, and could have deposed Mr.
Griffin and his son Woody Griffin at that time.
[Howard] also knew employees at Southeast Pallet,
one of whom was her own cousin from whom she could
have obtained information. Exactly as in McGhee [v.
Martin, 892 So. 2d 398 (Ala. Civ. App. 2004)],
[Howard] could have easily obtained information from
these sources--which she was quite aware of--prior
to the expiration of the statute of limitations.
The fact that she did not shows that she did not
exercise due diligence in adding Walter Griffin as
a defendant in this case."
In response, Howard argued that after she received
discovery materials from Mac, she amended her complaint to add
Emfinger, the fictitiously named defendant who supervised
Howard, and the fictitiously named defendant who had violated
§ 25-5-11 by removing a safety guard from the machine. She
stated that several attempts were made to depose Walter, but
those depositions were canceled by Walter's attorney. On
February 7, 2008, the trial court denied Walter's summary-
1070727
Howard has settled her claims against Mac and Fuhrlong,
2
and she has settled her worker's compensation claim against
Southeast Pallet.
9
judgment motion. Walter timely filed a petition for a writ of
mandamus with this Court.2
Standard of Review
"Mandamus is an extraordinary writ by which 'a
party seeks emergency and immediate appellate review
of an order that is otherwise interlocutory and not
appealable.' Rule 21(e)(4), Ala. R. App. P.
Mandamus is appropriate
"'"where there is (1) a clear legal right
in the petitioner to the order sought; (2)
an imperative duty upon the respondent to
perform, accompanied by a refusal to do so;
(3) the lack of another adequate remedy;
and (4) properly invoked jurisdiction of
the court."'
"Ex parte Perfection Siding, Inc., 882 So. 2d 307,
309-10 (Ala. 2003)(quoting Ex parte Integon Corp.,
672 So. 2d 497, 499 (Ala. 1995)). In part, this
Court may issue a writ of mandamus 'to prevent an
abuse of discretion, or to correct an arbitrary
action outside of the exercise of a reasonable
discretion.' Foshee v. State, 210 Ala. 155, 157, 97
So. 565, 566 (1923)."
Ex parte Brookwood Med. Ctr., [Ms. 1061307, May 23, 2008]
So. 2d , (Ala. 2008). Generally, the denial of a
motion for a summary judgment is not reviewable by a petition
for a writ of mandamus. A petition for a writ of mandamus,
however, is an appropriate means for challenging a trial
1070727
10
court's denial of a motion for a summary judgment when that
motion asserts a statute-of-limitations defense based on the
plaintiff's failure to state a cause of action against the
defendant who was initially named fictitiously. Ex parte
International Refining & Mfg. Co., 972 So. 2d 784 (Ala. 2007).
Discussion
In his petition, Walter argues that Howard's claims
against him pursuant to § 25-5-11(c), Ala. Code 1975, which
provides for actions against co-employees for "willful
conduct" in the removal of a safety guard, are governed by a
two-year statute of limitations as set out in § 6-2-38(g),
Ala. Code 1975. Because Howard was injured on April 23, 2003,
and Walter was not added as a defendant until January 31,
2006, Walter claims that the two-year statute of limitations
bars Howard's claims against him. Walter acknowledges that a
claim substituting a defendant for a fictitiously named
defendant will relate back to the date of the filing of the
original complaint if: (1) the plaintiff was ignorant of the
identity of the fictitiously named defendant at the time the
original complaint was filed and (2) if the plaintiff used due
diligence to discover the defendant's true identity before the
1070727
11
statute of limitations expired. Therefore, Walter argues, if
Howard knew, or should have known or was on notice, that
Walter was the party she described fictitiously in her first
amended complaint, her amendment adding Walter as a defendant
does not relate back.
Walter also argues that Howard was aware or should have
been aware of Walter's identity at the time she asserted her
claims
against
Emfinger
and
other
fictitiously
named
defendants on October 7, 2004. Walter further argues that
Howard failed to use due diligence in determining the identity
of the fictitiously named defendants added in the October 7,
2004, complaint. He points out that shortly after her
accident, Howard retained legal counsel, who advised Southeast
Pallet by letter that Howard had been injured using a machine
that had been designed by Mac with the assistance of certain
management employees of Southeast Pallet and that the conduct
of those employees constituted "willful conduct" under § 25-5-
11. Walter again argues that by December 2003, Howard had
documents in her possession that indicated Walter had worked
on the design of the machine.
1070727
12
Last, Walter argues that the amendment adding him as a
defendant will significantly prejudice him because, he argues,
there was such a long delay in adding him that he was
justified in believing that he was not going to be named as a
defendant in this case.
Rule 9(h), Ala. R. Civ. P., provides:
"When a party is ignorant of the name of an opposing
party and so alleges in the party's pleading, the
opposing party may be designated by any name, and
when that party's true name is discovered, the
process and all pleadings and proceedings in the
action may be amended by substituting the true
name."
This Court has held with regard to Rule 9(h) and the relation-
back principles of Rule 15(c), Ala. R. Civ. P., that the
plaintiff
must
state
a
cause
of
action
against
the
fictitiously named party in the body of the original
complaint; that the plaintiff's ignorance of the true identity
of the party intended to be sued is "in the sense of having no
knowledge" of the party's identity at the time the complaint
was filed; and that the plaintiff must have used due diligence
in attempting to discover the identity of the fictitiously
named party. Columbia Eng'g Int'l Ltd. v. Espey, 429 So. 2d
955, 958 (Ala. 1983). To be entitled to the benefit of the
1070727
13
relation-back principles, the plaintiff must act with due
diligence to ascertain the fictitiously named defendant's true
name and to promptly amend the complaint to correctly identify
that defendant. The due-diligence standard, as stated in
Davis v. Mims, 510 So. 2d 227, 229 (Ala. 1987), "is whether
the plaintiff knew, or should have known or was on notice,
that the substituted defendants were in fact the parties
described fictitiously."
In the present case, Howard added Walter as the
fictitiously named defendant who was supervising her on the
day of the accident and the fictitiously named defendant who
had violated § 25-5-11(c)(2), Ala. Code 1975, by removing the
safety guard. Section 25-5-11, provides, among other things,
an employee the right to maintain an action against an
employer for workers' compensation benefits while at the same
time pursuing an action for damages against a third party for
that same injury. Section 25-5-11(b), provides, in pertinent
part, that "[i]f personal injury ... to any employee results
from the willful conduct, as defined in subsection (c) herein,
of any ... employee of the same employer ..., the employee
1070727
14
shall have a cause of action against the person ...."
Subsection (c) provides:
"(c) As used herein, 'willful conduct' means any
of the following:
"....
"(2)
The
willful
and
intentional
removal from a machine of a safety guard or
safety device provided by the manufacturer
of the machine with knowledge that injury
or death would likely or probably result
from the removal; provided, however, that
removal of a guard or device shall not be
willful conduct unless the removal did, in
fact, increase the danger in the use of the
machine and was not done for the purpose of
repair of the machine or was not part of an
improvement or modification of the machine
which
rendered
the
safety
device
unnecessary or ineffective."
We agree with Walter that Howard knew on December 15,
2003, that Walter was, at the very least, Mac's contact at
Southeast Pallet and that he could have knowledge of who had
designed or set out the specifications for the machine on
behalf of Southeast Pallet. With due diligence, Howard could
have discovered Walter's role in the design of the machine.
However, Howard did not substitute Walter for a fictitiously
named defendant that had designed the machine. Instead,
Howard subsequently obtained information from Emfinger that
1070727
15
indicated Walter had been Howard's supervisor on the day of
the accident, that there had been a safety guard on the
machine, and that Walter had removed the safety guard on the
machine. Howard then substituted Walter as the fictitiously
named defendant who had supervised her on the day of the
accident and the fictitiously named defendant who had violated
§ 25-5-11(c)(2) by removing the safety guard. Any claim that
Howard would have had against Walter arising out of the design
of the machine would now be barred by the applicable statute
of limitations. Nevertheless, Howard's claim against Walter
arises out of his supervising her on the day of the accident
and the removal of the safety guard.
In Ex parte Bowman, [Ms. 1061079, December 7, 2007]
So. 2d (Ala. 2007), the employee was injured while working
on a fermenter tank. The employee and his wife sued the
manufacturer of the tank and several fictitiously named
defendants, alleging that they had been negligent in
designing, manufacturing, and installing the tank. After the
statute of limitations had run, the employee and his wife
filed a motion to amend their complaint to substitute the
quality-assurance manager for one of the fictitiously named
1070727
16
defendants. The quality-assurance manager filed a motion to
dismiss the claims against him on the ground that the amended
complaint did not relate back to the original complaint, which
the trial court denied. The manager then petitioned this
Court for a writ of mandamus directing the trial court to
dismiss him as a defendant. We held that although the
employee knew the identity of the quality-assurance manager at
the time the original complaint was filed, he was unaware that
the manager had also been responsible for acquiring,
installing, and modifying the tank. The fact that the
employee knew that the manager was in charge of quality
control of the product produced was not related to the
plaintiffs' claim. "There is no logical and necessary linkage
between knowledge that such an individual [responsible for
quality control] was a participant in acquiring, installing,
and modifying the machine that makes the product." So. 2d
at . This Court denied the manager's petition. Similarly,
in the present case, Howard knew, as early as December 2003,
that Walter had some involvement in the design of the machine.
However, she did not know, until Emfinger filed his affidavit,
that Walter allegedly had been her supervisor on the day of
1070727
17
the accident and that he allegedly had removed a safety guard
from the machine.
We recognize that the evidence is disputed as to whether
the machine was designed without a safety guard or designed
with a safety guard that Southeast Pallet failed to install,
or whether someone had removed the safety guard. However,
that factual dispute is not dispositive of this procedural
issue. We leave those factual questions for a jury to decide.
The issue then becomes whether Howard used due diligence
in discovering Walter's identity as her supervisor on the day
of the accident or as the person who removed the safety guard.
In Oliver v. Woodward, 824 So. 2d 693 (Ala. 2001), the patient
brought a medical-malpractice action against certain real and
fictitiously named doctors arising out of the improper
placement of a catheter, which resulted in the amputation of
the patient's arm. The patient amended her complaint to
substitute Dr. Woodward for one of the fictitiously named
doctors. The trial court granted Dr. Woodward's motion for a
summary judgment, and the patient appealed. This Court
stated:
"The issue before the Court is when [the patient]
knew or should have known Dr. Woodward's identity as
1070727
18
a
tortfeasor
'described
fictitiously'
in
the
complaint. ... Dr. Woodward claims that [the
patient] knew his identity on November 25, 1998,
when [the hospital] identified Drs. Pepper and
Woodward as emergency-room doctors on duty between
8:00 a.m. and 3:00 p.m. on March 25, 1995. [The
patient]
asserts
that
she
did
not
know
Dr.
Woodward's identity as the emergency-room doctor who
read [her] X-ray until April 28, 1999, when [the
radiographer]
identified
Dr.
Woodward
as
the
emergency-room doctor who read [the patient's] X-ray
and verified placement of [the patient's] central
venous catheter. We agree with [the patient].
"Although on November 25, 1998, [the hospital]
identified Dr. Woodward as an emergency-room doctor
on duty on March 25, 1995, [the hospital] did not
identify Dr. Woodward as the emergency-room doctor
who read [the patient's] X-ray and who verified
placement of [her] central venous catheter. [The
patient] diligently and reasonably began serially
deposing the four doctors identified as working in
the emergency room on March 25, 1995. Three of the
four doctors, including Dr. Woodward, denied being
the emergency-room doctor who read [the patient's]
X-ray. Not until [the patient] deposed [the
radiographer] did [the patient] have any notice that
Dr.
Woodward
was
the
emergency-room
doctor
responsible for verifying placement of her central
venous catheter."
824 So. 2d at 698-99.
In the present case, Howard discovered that Emfinger had
been a supervisor and on October 7, 2004, well within the
applicable two-year statute of limitations, she amended her
complaint to add Emfinger, along with two fictitiously named
defendants who had supervised Howard or who had removed the
1070727
19
safety device in contravention of § 25-5-11(c)(2). She
attempted to serve Emfinger on several occasions. Very
shortly after she served Emfinger, Emfinger provided her with
the information that Walter had been Howard's supervisor and
that Walter had removed the safety guard. We also note that
Mac attempted to depose Walter on several occasions, but that
would have been to no avail in discovering Walter's alleged
involvement as one of the fictitiously named defendants
because, when Walter was deposed, he denied being at the plant
on the day of the accident and denied removing the safety
guard.
This Court stated in Ex parte Stover, 663 So. 2d 948, 952
(Ala. 1989):
"As to Stover's contention that the plaintiffs
failed to exercise due diligence in ascertaining his
identity, we hold that our standard of reviewing
summary judgments prevents us from holding, as a
matter of law, that the Chaverses were not diligent
in substituting him as one of the fictitiously named
defendants. Ex parte FMC Corp., 599 So. 2d 592
(Ala. 1992). In Ex parte FMC Corp., this Court
wrote:
"'Although
the
record
indicates
that
reasonable people could differ as to
whether the plaintiffs proceeded in a
reasonably diligent manner in identifying
[the fictitiously named defendant added by
amendment], a writ of mandamus would be
1070727
20
proper in this case only if undisputed
evidence showed that the plaintiffs had
failed to act with due diligence in
identifying
[the
fictitiously
named
defendant] as the party intended to be
sued. 599 So. 2d at 595. See Ex parte
Klemawesch, 549 So. 2d 62 (Ala. 1989).'"
Walter has not presented undisputed evidence that Howard
failed to exercise due diligence in ascertaining his identity.
Last, Walter argues that he would be prejudiced if he
were substituted for one of the fictitiously named defendants
because, he says, he was justified in believing that he was
not going to be a defendant in Howard's action because it had
been pending since 2003 and there were already defendants
named in the complaint. "This court has recognized that delay
in amending a complaint to substitute a named party for a
fictitiously named party once information is available can
defeat the availability of relation back." Ex parte Bowman,
So. 2d at . The accident occurred on April 23, 2003,
and Howard brought her action on June 27, 2003. The statute
of limitations would have run on or about April 23, 2005, and
Walter was substituted as a defendant on January 31, 2006,
very shortly after Howard learned of Walter's alleged
involvement. Walter was aware of the action because Mac had
1070727
21
attempted to depose him on several occasions. The purpose of
a statute of limitations was not defeated by applying the
doctrine of relation-back where Walter was sufficiently
alerted to the proceedings from an early stage and Howard
promptly amended her complaint.
Because Walter has failed to establish a clear legal
right to the relief sought, we deny the petition for a writ of
mandamus.
PETITION DENIED.
Cobb, C.J., and See, Lyons, Stuart, Smith, Parker, and
Murdock, JJ., concur.
Woodall, J., dissents.
1070727
22
WOODALL, Justice (dissenting).
In my opinion, the undisputed evidence shows that Howard
failed to act with due diligence in identifying Walter Griffin
as the party intended to be sued. Within a few days of the
accident, Howard's attorney was given information identifying
Emfinger as Howard's supervisor and identifying Walter Griffin
as a person of authority at Southeast Pallet. Howard did
nothing to determine the extent of the responsibilities of
Emfinger or Walter and added Walter as a defendant only after
Emfinger volunteered information in an affidavit filed in
January 2006. | August 29, 2008 |
0b5070b6-f54a-4a1e-afd9-bc4ad1fa8946 | Price McLemore et al. v. Hyundai Motor Manufacturing Alabama, ( 359 ) LLC, and the Industrial Development Board of the City of Montgomery | N/A | 1070516 | Alabama | Alabama Supreme Court | REL: 10/10/2008
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2008-2009
____________________
1070516
____________________
Price McLemore et al.
v.
Hyundai Motor Manufacturing Alabama, LLC, and the Industrial
Development Board of the City of Montgomery
____________________
1070517
____________________
George E. Russell and Thomas E. Russell, as coexecutors and
cotrustees of the will and testamentary trust of Ernest W.
Russell; and Myrtis Russell
v.
Hyundai Motor Manufacturing Alabama, LLC, and the Industrial
Development Board of the City of Montgomery
Appeals from Montgomery Circuit Court
(CV-05-1728; CV-04-3282)
1070516 and 1070517
2
STUART, Justice.
George E. Russell and Thomas E. Russell, as coexecutors
and cotrustees of the will and testamentary trust of Earnest
W. Russell, and Myrtis Russell ("the Russells"), and Price
McLemore, Mary H. McLemore, John McInnis, Jr., Timothy N.
McInnis, Charles R. McInnis, Williams S. Newell, and the
Peoples Bank and Trust Company, as trustee for the Adaline
Hooper Trust A and B ("the McLemore group"), sued the
Industrial Development Board of the City of Montgomery ("the
IDB")
and
Hyundai
Motor
Manufacturing
Alabama,
LLC
("Hyundai"), alleging breach of contract. Specifically, they
alleged that the IDB, on behalf of Hyundai, exercised options
to purchase their real property but failed to pay them in
accordance with the most-favored-nation clause in the option
agreements the same price per acre that was paid to another
landowner. The trial court entered summary judgments for the
IDB and Hyundai. We affirm in part, reverse in part, and
remand.
Facts
In September 2001, various officials of the State of
Alabama, the City of Montgomery ("the City"), the Montgomery
County Commission ("the County"), the Montgomery Area Chamber
1070516 and 1070517
The IDB explained in its brief to this Court that it is
1
involved in the process "to comply with laws for tax breaks
and incentives to the industry."
3
of Commerce, and the Montgomery Water Works Board began making
preparations to secure options to purchase property in the
Montgomery area to create an incentive package in the hope
that they could persuade Hyundai to build an industrial plant
in the Montgomery area for the purpose of manufacturing and
assembling motor vehicles. This intent is evidenced by a
signed letter to Hyundai from the City, the County, and the
IDB stating that they, "in partnership with the State," would
commit to providing an industrial site to Hyundai at no cost.
Although the funds to purchase the property were to be
provided by the City and the County only, the option
agreements on the property were acquired by the IDB, whose
primary role in industrial projects is to "serve as the entity
through which monies flow for the purchase of land for the
ultimate
use
in
industry."
B.M.
Ahn,
the
Hyundai
1
representative in charge of Hyundai's project to open a plant
in the United States, testified during his deposition that one
of the basic elements of an incentive package is "free land"
offered to an automobile company as part of the incentive for
1070516 and 1070517
At Hyundai's request, the IDB did not reveal the identity
2
of the potential industrial project.
The provision "the purchase price shall in no event be
3
less than the price per acre paid to any other landowner
included in the project planned for the Property" is known as
a most-favored-nation clause or a price-escalation clause.
4
the company to locate in a certain area. Ahn stated that
Hyundai had no role in acquiring the options on the land.
The Russells owned approximately 328 acres of land in
Montgomery County. In the fall of 2001, Reuben Thornton, the
chairman of the IDB, entered into an option agreement on
behalf of the IDB to purchase the Russells' property for an
industrial project. The agreement provided an option period
2
of 120 days and stated:
"3. If Purchaser elects to exercise this Option
the purchase price for the Property shall be
determined as follows:
"Seller and Purchaser shall each, at
its own cost and expense, secure a current
appraisal of the Property. The purchase
price shall be the average of the two
appraisals provided, however, in no event
shall the purchase price be less than
$4,500 per acre and further provided that
the purchase price shall in no event be
less than the price per acre paid to any
other landowner included in the project
planned for the Property. The acreage
shall be determined by a good and accurate
survey provided by Purchaser.[3]
"....
1070516 and 1070517
5
"16. This Option constitutes the entire and
complete agreement between the parties hereto and
supersedes any prior oral or written agreements
between the parties with respect to the Property.
It is expressly agreed that there are no verbal
understandings or agreements which in any way change
the terms, covenants, and conditions herein set
forth, and that no modification of this Option and
no waiver of any of its terms and conditions shall
be effective unless made in writing and duly
executed by the parties hereto."
The Russells and the IDB amended the option agreement in
February 2002 to provide:
"1. It is hereby agreed that the purchase price
for the Property is Four Thousand Five Hundred and
No/100 Dollars ($4,500.00) per acre. The exact
number of acres to be determined by the survey
provided by Purchaser.
"2. The option period is hereby extended for a
period of 120 days from the Effective Date of the
Option, which Effective Date is October 3, 2001.
The expiration date of the Option, as extended, is
now May 31, 2002.
"3. Except as amended hereby, the Option is in
all other respects ratified and confirmed."
In February 2002, Thornton, on behalf of the IDB, entered
into an option agreement with the McLemore group, who owned
approximately 54 acres of land near the Russell property. The
terms in the option agreement with the McLemore group are
identical to the terms in the original option agreement
between the Russells and the IDB.
1070516 and 1070517
In the pleadings and briefs to this Court, this property
4
is also referred to as the Shelton-Walker property.
6
The IDB also acquired four additional option agreements
with landowners near the property belonging to the Russells
and the McLemore group. During the acquisition process, the
IDB approached Joy Shelton about an option to purchase her
property; however, she refused to enter into an option
agreement. The IDB decided that the Shelton property was not
4
necessary for the incentive package. By mid-March 2002, the
IDB determined that it was not going to designate any
additional funds, other than the funds already committed, to
this particular project. The State and the IDB sent the
incentive package, including the proposed project site, to
Hyundai for consideration.
On March 28, 2002, Ahn contacted Todd Strange, then the
director of the Alabama Development Office. He stated that
Hyundai had not decided whether to locate the plant in
Montgomery or in Kentucky but that additional property would
need to be acquired for the rail access Hyundai required if
Montgomery was to be selected as the site for the Hyundai
plant. Ahn informed Strange that he would need an answer by
noon of the next day as to whether the property could be
1070516 and 1070517
7
acquired. Strange met with various State, City, and County
officials to discuss Hyundai's request. Recognizing that the
City and the County would not provide additional funds to
acquire more property and that the other option agreements
contained most-favored-nation clauses, they decided to ask CSX
Transportation, Inc., the rail company, to acquire the option
to purchase the Shelton property. On March 29, 2002, Strange
sent David Hemphill, an assistant vice president for CSX, the
following letter via facsimile:
"Last evening, Thursday, March 28, 2002, at 6:05
p.m. Central Standard Time, I received a call from
Mr. B.M. Ahn, President Hyundai Motor Company, U.S.
from Seoul, Korea. He told me they were in the
final stages of the decision and needed to make
modifications
to their Montgomery site layout
because the CSX Railroad yard estimate had come in
extremely high. In their (Hyundai's) redesign, he
wanted to do parallel tracks running north and south
on the eastern side of the property boundary. His
engineers told him he would not have enough room
unless [additional property was] obtained in the
southeast corner of the quadrant. This property had
been discussed a couple of months ago but we had
been told as recently as two weeks ago that it would
not be necessary. So accordingly, we did not pursue
any options....
"As I indicated to you last night, our option
agreements have a 'most favored nation' clause where
we agreed to pay no more for any one parcel than any
of the other parcels. Accordingly, I assembled a
working group of the local Chamber of Commerce
1070516 and 1070517
Echols was the project manager at the Alabama Development
5
Office for the Hyundai project.
Evans is another CSX official involved in the Hyundai
6
project.
8
executives, engineering expertise, Dave Echols
and
[5]
myself. We decided the most appropriate course to
follow would be to ask CSX to obtain a parcel for
rail
access
to
keep
it
outside
the
project
agreement. As you know CSX's agreement with Hyundai
is separate and this property in their view is for
rail access only....
"....
"Dave, as you can appreciate there are a lot of
details to be worked out, but the spirit and concept
is for CSX to obtain the needed parcel for rail
access and whatever the purchase price, CSX would be
made whole in a manner we mutually agreed upon."
Also on March 29, 2002, Hemphill sent the following e-
mail to Dave Echols:
"Regarding the [Shelton property] that will need to
be purchased, you asked if CSX would be willing to
buy this property for the State and Montgomery at
approximately $8,000.00 an acre. There is no
contract or option on the property currently and you
estimate it will cost us approximately $750,000.00
which you are willing to refund to us in some
fashion during the track construction phase. Randy
Evans,
in principle agreed to this and I ask that
[6]
you fax us a letter outlining exactly what you have
in mind. The purpose of doing it this way rather
than what you did in getting control of the other
1600 acres is to avoid paying the other landowners
$8,000.00 an acre which would have a negative impact
of $10,000,000.00 on the site cost. The railroad
does not get good land values in a situation like
this and so I think there will be upward pressure on
1070516 and 1070517
9
that $8,000 number. Moreover, the other landowners
will get wind of this ploy and may create negative
community publicity. ... In your letter to us we
would ask that you indicate exactly how you intend
to pay us during the track work construction."
Mayor Bobby Bright, mayor of the City of Montgomery and
an ex officio member of the IDB, was selected as the main
representative to meet with Shelton to acquire an assignable
option agreement designating the City as the purchaser of the
Shelton property. Before Bright agreed to meet with Shelton,
he told Strange and other State officials that the City and
the County would not provide any additional money toward the
project. They assured him that the City and the County would
not be asked or expected to contribute any funds toward the
purchase of the Shelton property and that the option would be
assigned to either CSX or the State. Randy George, president
of the Montgomery Area Chamber of Commerce and secretary of
the IDB, and Elaine McNair, a member of the Chamber of
Commerce, went with Bright to meet with Shelton. Bright
obtained an assignable option, designating the City, not the
IDB, as the purchaser of the property; the purchase price of
the property was $12,000 per acre.
1070516 and 1070517
Frank McPhillips was one of the attorneys for the State
7
involved in the Hyundai project.
10
McNair informed Thomas H. Gallion III, the IDB's
attorney, of the acquisition of the option to purchase the
Shelton property. During her deposition, she stated:
"On Friday when ... I came back from visiting with
Mrs. Shelton, I contacted both Mr. Gallion and Mr.
McPhillips.
My concern was, ... just to let them
[7]
know what had happened, you know, with Thursday
night because it happened so fast. They were not
aware of it until after the fact, so I wanted to
tell them what had happened.
"But also I was just a little concerned with [Mayor
Bright] taking out the option –- because he was a
local person, and his action of just taking out the
option which would be assigned to CSX or somebody,
that just made me a little nervous.
"So I just said –- you know, I was, you know, just
calling them just to be sure that that wouldn't
trigger any –- you know, we just didn't know whether
or not that would, and so I just wanted to be sure.
So I contacted both of them."
On April 1, 2002, Hyundai announced that it was going to
build the plant in Montgomery. On April 15, 2002, the various
State and local governmental entities involved, including the
IDB, entered into a project agreement with Hyundai detailing
the location and development of the plant ("the project
agreement"). The project agreement, in section 3.1 of Article
3, stated that "the Montgomery IDB presently holds purchase
1070516 and 1070517
11
options necessary to acquire fee simple title to each parcel
of real estate comprising the Project Site." The project
agreement further provided in section 3.4 that the IDB was to
exercise each option and in section 3.6(a) that the IDB was
then to transfer title of the property to Hyundai. Section
3.20 of the project agreement, entitled "CSX Agreement,"
provided separately for the acquisition of the Shelton
property, stating:
"The State and Local Governments shall use their
best efforts to cause CSX Transportation to enter
into
an
agreement
with
[Hyundai]
in
form
satisfactory to [Hyundai], which will provide for
rail service for [Hyundai] on terms and conditions
as favorable to [Hyundai] as those offered to other
automobile manufacturers. In addition, the State
and City shall use their best efforts to cause CSX
Transportation to provide the incentives set forth
in the letter from CSX Transportation dated December
17, 2001. The State represents and warrants that
[Hyundai] will acquire fee simple title to [the
Shelton property] for use in connection with
construction of a rail switch yard by or before
September 30, 2002. If and to the extent [Hyundai]
makes any payment for the cost of acquiring such
acreage, the State shall reimburse [Hyundai] for
such costs by increasing by an equivalent amount the
monies made available from the State in Training
Equipment Fund pursuant to Article 4 by no later
than the last quarter of the calendar year 2003.
The City agrees that it will zone such additional
acreage the same as the Project Site. The Local
Governments agree to abate taxes that are applicable
to such additional acreage in the same manner and to
the same extent as ... abatement of taxes of the
Project Site."
1070516 and 1070517
12
The IDB assigned the options on the property owned by the
Russells and the McLemore group to the City and the County.
On May 14, 2002, the City and the County purchased the
property for $4,500 per acre. The City and the County then
deeded the property to the IDB, which then deeded the property
to Hyundai.
The City never exercised its option on the Shelton
property. On May 22, 2002, Henry Mabry, then director of
finance for the State, sent Ahn a letter confirming that the
State would be funding the purchase of the Shelton property,
stating:
"This is to confirm that the State of Alabama
will provide the funding for the purchase of the 93
acres set aside for Hyundai's rail yard on the date
of closing. This will obviate any need for Hyundai
to borrow to pay for this acquisition. In addition,
the State will pay the reasonable due diligence
costs
incurred
in
connection
with
Hyundai's
acquisition of this property. This letter of
assurance is being provided to you pursuant to
Section 3.20 of the Project Agreement."
On May 31, 2002, the day the option agreement on the Shelton
property was to expire, CSX entered into a real-estate sales
contract for the purchase of the property at $12,000 per acre.
When Hyundai learned that CSX, and not the State, was to pay
for the rail installation and that Hyundai would be expected
1070516 and 1070517
In order for ALDOT to perform site preparation, the
8
property had to be owned by a governmental entity. Therefore,
Hyundai leased the property to the IDB so that a governmental
entity would have a possessory interest in the property, which
would allow ALDOT to perform the site preparation.
13
to enter into a long-term contract with CSX, Hyundai decided
to install the rail using its own funds. As a result of
Hyundai's decision not to involve CSX in rail installation,
CSX assigned the real-estate contract to Hyundai. According
to the assignment contract, CSX assigned the contract to
Hyundai on May 28, 2002, three days before the real-estate
contract between CSX and Shelton was executed. On July 12,
2002, funds from the State of Alabama Incentives Finance
Authority were transferred to Hyundai to pay for the Shelton
property, and Hyundai purchased the property.
After all the land was acquired and deeded to Hyundai,
Hyundai leased all the property, including the Shelton
property, to the IDB so that the Alabama Department of
Transportation ("ALDOT") could perform site preparation on the
property. Additionally, the IDB entered into a tax-abatement
8
agreement with Hyundai so that Hyundai's property could
receive the previously agreed upon abatement from ad valorem
taxation and other tax incentives. The Shelton property was
included in the tax-abatement agreement.
1070516 and 1070517
14
Subsequently, the Russells and the McLemore group each
filed a breach-of-contract action against the IDB and Hyundai,
alleging that the IDB and Hyundai had breached the most-
favored-nation clause in the option agreements by not paying
them $12,000 per acre for their property. According to the
Russells and the McLemore group, the Shelton property was
"included in the project agreement" and, consequently, they
should have been paid, as Shelton was paid, $12,000 per acre
for their property. After some discovery, the IDB and Hyundai
moved for summary judgments. The trial court denied the
motions. Additional discovery was conducted, and a special
master was appointed. The IDB and Hyundai filed renewed
motions for a summary judgment. The special master heard oral
arguments on the motions and then recommended to the trial
court that the motions for a summary judgment be granted. The
trial
court,
after
considering
the
special
master's
recommendation, entered summary judgments for the IDB and
Hyundai. The Russells and the McLemore group appealed. We
have consolidated the appeals for the purpose of writing one
opinion.
Standard of Review
1070516 and 1070517
15
"'On appeal, this Court reviews a summary
judgment de novo.' DiBiasi v. Joe Wheeler Elec.
Membership Corp., [Ms. 1060848, Jan. 11, 2008] ___
So. 2d ___, ___ (Ala. 2008) (citing Ex parte Essary,
[Ms. 1060458, Nov. 2, 2007] ___ So. 2d ___, ___
(Ala. 2007)). In order to uphold a summary
judgment, we must determine that 'there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter
of law.' Rule 56(c)(3), Ala. R. Civ. P. 'When the
movant makes a prima facie showing that those two
conditions have been satisfied, the burden then
shifts to the nonmovant to present substantial
evidence creating a genuine issue of material fact.'
Blue Cross & Blue Shield of Alabama v. Hodurski, 899
So. 2d 949, 952 (Ala. 2004). Substantial evidence
is 'evidence of such weight and quality that
fair-minded persons in the exercise of impartial
judgment can reasonably infer the existence of the
fact sought to be proved.' West v. Founders Life
Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.
1989); see also § 12-21-12(d), Ala. Code 1975. In
reviewing a summary judgment, we must view the
evidence in the light most favorable to the
nonmovant. Johnny Ray Sports, Inc. v. Wachovia
Bank, 982 So. 2d 1067, 1071 (Ala. 2007). 'Finally,
this Court does not afford any presumption of
correctness to the trial court's ruling on questions
of law or its conclusion as to the appropriate legal
standard to be applied.' DiBiasi, ___ So. 2d at
___."
Catrett v. Baldwin County Elec. Membership Corp., [Ms.
1061538, May 23, 2008] ___ So. 2d ___, ___ (Ala. 2008).
Questions of law are reviewed de novo. Davis v. Hanson
Aggregates Southeast, Inc., 952 So. 2d 330 (Ala. 2006).
Issues
1070516 and 1070517
16
As we analyze the issues presented by the parties, we are
mindful of the following:
"When a trial court is [faced] with a contract
issue, it is important for the trial court to
determine as soon as practicable the 'threshold
issue' whether the contract is ambiguous. If the
trial court determines that there is no ambiguity,
it must '"determine the force and effect of the
terms of the contract as a matter of law."' Cherokee
Farms, Inc. [v. Fireman's Fund Ins. Co.], 526 So. 2d
[871,] 873 [(Ala. 1988)], quoting Wigington v. Hill-
Soberg Co., 396 So. 2d 97, 98 (Ala. 1981). However,
if the trial court finds the contract to be
ambiguous, it 'must employ established rules of
contract construction to resolve the ambiguity.'
Voyager Life Ins. Co. v. Whitson, 703 So. 2d 944,
948 (Ala. 1997). If the application of such rules
is not sufficient to resolve the ambiguity, factual
issues arise:
"'If one must go beyond the four
corners of the agreement in construing an
ambiguous
agreement,
the
surrounding
circumstances,
including
the
practical
construction put on the language of the
agreement by the parties to the agreement,
are
controlling
in
resolving
the
ambiguity.'
"Id. at 949. Where factual issues arise, the
resolution of the ambiguity becomes a task for the
jury. McDonald v. U.S. Die Casting & Dev. Co., 585
So. 2d 853 (Ala. 1991)."
Alfa Life Ins. Corp. v. Johnson, 822 So. 2d 400, 404-05 (Ala.
2001).
"'"Whether a contract is ambiguous is
a question of law for the trial court to
determine." P & S Business, Inc. v. South
1070516 and 1070517
17
Central Bell Tel. Co., 466 So. 2d 928, 931
(Ala. 1985) (citing Haddox v. First Alabama
Bank of Montgomery, 449 So. 2d 1226, 1228
(Ala. 1984); Food Service Distributors,
Inc. v. Barber, 429 So. 2d 1025, 1028 (Ala.
1983)). In interpreting a contract, the
"'words of the agreement will be given
their ordinary meaning.'" Hibbett Sporting
Goods, Inc. v. Biernbaum, 391 So. 2d 1027,
1029
(Ala.
1980)(quoting
Flowers
v.
Flowers, 334 So. 2d 856, 857 (Ala. 1976)).
An "instrument is unambiguous if only one
reasonable
meaning
clearly
emerges."
Vainrib v. Downey, 565 So. 2d 647, 648
(Ala. Civ. App. 1990); see also Flowers,
334 So. 2d at 857. "If the terms within a
contract are plain and unambiguous, the
construction of the contract and its legal
effect become questions of law for the
court and, when appropriate, may be decided
by a summary judgment. However, if the
terms within the contract are ambiguous in
any respect, the determination of the true
meaning of the contract is a question of
fact to be resolved by a jury." McDonald
v. U.S. Die Casting & Development Co., 585
So. 2d 853, 855 (Ala. 1991)(citations
omitted).'
"Reeves Cedarhurst Dev. Corp. v. First Amfed Corp.,
607 So. 2d 184, 186 (Ala. 1992)."
Ex parte Gardner, 822 So. 2d 1211, 1217 (Ala. 2001).
Moreover, "just because the parties allege different
constructions of an agreement, it does not necessarily mean
that the agreement is ambiguous." Yu v. Stephens, 591 So. 2d
858, 859-60 (Ala. 1991).
1070516 and 1070517
18
I. Whether the trial court erred in entering a
summary judgment for Hyundai.
The Russells and the McLemore group contend that the
trial court erred in entering a summary judgment for Hyundai
because, they say, the IDB, the City, the County, and the
State were acting as agents of Hyundai or were involved in a
joint venture with Hyundai to acquire the land for the project
site; therefore, they maintain, Hyundai is also liable for the
alleged breach of the contract.
A. Were the IDB, the City, the County, and the
State acting as agents of Hyundai in acquiring the
property of the Russells and the McLemore group?
"When a defendant's liability is to be based on agency,
agency may not be presumed; rather, when on a motion for
summary judgment a defendant has made a prima facie showing
that there was no agency relationship, the party asserting
agency has the burden of presenting substantial evidence of
the alleged agency." Malmberg v. American Honda Motor Co.,
644 So. 2d 888, 890 (Ala. 1994).
"The authority of an agent to contract on behalf
of a principal must be either expressed, implied or
apparent. 2A C.J.S. Agency. ... It is stated in 2A
C.J.S. Agency § 153 as follows:
"'Implied authority may be viewed as actual
authority given implicitly by the principal
to the agent; and, as otherwise stated, it
1070516 and 1070517
19
is
actual
authority
circumstantially
proved, or evidenced by conduct or inferred
from course of dealing between the alleged
principal and agent. It differs from
apparent authority in that it is authority
which the principal intended that the agent
should have. ... Implied powers, like any
others, must be bottomed on some act or
acquiescence of the principal, express or
implied. They are created by act of the
parties and in every case depend largely
upon
the
particular
circumstances
involved.
"'They are not to be extended beyond the
legitimate scope of implied authority,
their existence or non-existence in any
particular
instance
being
always
determinable by reference to the intention
of the parties. So an agent has no implied
authority unless he believes that he had
such authority. ...' ....
"....
"... The doctrine of apparent authority rests
upon the principle of estoppel, which forbids one by
his acts to give an agent an appearance of authority
which he does not have and to benefit from such
misleading conduct to the detriment of one who has
acted in reliance upon such appearance. We find in
Am.Jur. 2d, Agency, § 74, p. 476 the following:
"'The apparent power of an agent is to be
determined by the acts of the principal,
and not the acts of the agent; a principal
is responsible for the acts of the agent
only where the principal by his acts or
conduct has clothed the agent with the
appearance of authority and not where the
agent's own conduct and statements have
created apparent authority.'"
1070516 and 1070517
20
Patterson v. Page Aircraft Maint., Inc., 51 Ala. App. 122,
125-26, 283 So. 2d 433, 436 (Ala. Civ. App. 1973)(emphasis
omitted).
To avoid a summary judgment, a party relying on apparent
agency must
"'"show that he was misled by the appearances relied
upon. It is not enough that he might have been, ...
so misled. It must also appear that he had
reasonable cause to believe that the authority
existed; mere belief without cause, or belief in the
face of facts that should have put him on his guard
is not enough."'"
Brown v. St. Vincent's Hosp., 899 So. 2d 227, 241 (Ala. 2004)
(quoting Union Oil Co. of California v. Crane, 288 Ala. 173,
180, 258 So. 2d 882, 887 (1972), quoting in turn Birmingham
News Co v. Birmingham Printing Co., 209 Ala. 403, 405, 96 So.
336, 339 (1923)).
The Russells and the McLemore group did not present
substantial evidence indicating that the IDB, the City, the
County, or the State were acting as Hyundai's express,
implied, or apparent agent with regard to the acquisition of
their property. The option agreements do not state that the
IDB or Thornton, the chairman of the IDB, was acting as an
agent of Hyundai; therefore, there is no evidence of express
agency. Additionally, we find no evidence of implied agency.
1070516 and 1070517
21
Nothing
before
us
creates
an
inference
that
Hyundai
participated in identifying the location of the property
proposed for the project site, that it was involved in
drafting the option agreements, that it met with the property
owners, or that it was a party to the option agreements.
Therefore, the Russells and the McLemore group did not present
substantial evidence of express or implied agency. Likewise,
the Russells and the McLemore group did not present
substantial evidence of apparent agency. The evidence
indicates that Hyundai was never involved in selecting the
properties for acquisition, that it did not participate in any
of the negotiations for the option agreements, and that no
Hyundai representative was ever present or communicated with
any property owner. Indeed, Thornton testified that the
IDB's purpose in obtaining the option agreements was to
"acquire land on behalf of the City and County" in order to
"serve the City of Montgomery and promote industry." Thus,
the evidence indicates that the IDB, the City, the County, and
the State were not acting to acquire the properties as an
agent or under the direction of Hyundai, but at their own
direction and on their own initiative to entice Hyundai to
build an automobile plant in Montgomery County.
1070516 and 1070517
22
The Russells and the McLemore group urge that evidence of
an agency relationship is found in the project agreement.
They direct this Court to a provision in the project agreement
that required the IDB to exercise the option agreements, to
unify the title of the property constituting the project site
for transfer of the title of the property to Hyundai, to
transfer title of the property to Hyundai, and to perform the
site preparation for the property to Hyundai's specifications.
Additionally, they point out that the option agreements were
not exercised until after the project agreement was signed.
The project agreement, however, does not evidence an
agency relationship. The option agreements were acquired
before the IDB, the City, the County, and the State had a
relationship with Hyundai. The testimony indicates that they
were executed as part of the creation of an incentive package
to encourage Hyundai to select the Montgomery area as the site
for its automobile plant, and the project agreement is
evidence of Hyundai's acceptance of the package. As Ahn
testified, the reason for the project agreement and its
requirements was to allow Hyundai to obtain control over the
property. Moreover, nothing in the project agreement
indicates that Hyundai selected the location for the project
1070516 and 1070517
23
or that it was bound by the option agreements or the sales
agreements for the property. Thus, the project agreement does
not provide substantial evidence of the existence of an agency
relationship.
A review of the record does not yield substantial
evidence indicating that the IDB, the City, the County, or the
State was acting as an agent of Hyundai in acquiring the
property of the Russells and the McLemore group.
B. Were Hyundai, the IDB, the City, the County, and
the State engaged in a joint venture to acquire the
property of the Russells and the McLemore group?
The Russells and the McLemore group contend, in the
alternative, that Hyundai is liable for breach of contract
because, they say, Hyundai was engaged in a joint venture with
the IDB, the City, the County, and the State to acquire their
property. According to the Russells and the McLemore group,
they presented substantial evidence of the existence of a
joint venture through the language in the project agreement
indicating a sharing of efforts, property, skill, money, and
knowledge to purchase and develop property for a manufacturing
plant for a community of interest.
"'This Court wrote in Arndt v. City of
Birmingham, 547 So. 2d 397 (Ala. 1989):
1070516 and 1070517
24
"'"'A joint venture is
an
association
of
persons with intent, by
way
of
express
or
implied
contract,
to
engage in and carry out
a
single
business
venture
for
joint
profit,
for
which
purpose
they
combine
t h e i r
e f f o r t s ,
property, money, skill,
and knowledge, without
creating a partnership
or
a
corporation,
p u r s u a n t
t o
a n
agreement
that
there
shall be a community of
interest among them as
to the purpose of the
undertaking, and that
each participant shall
stand in the relation
of principal as well as
agent as to each of the
other
coadventurers,
with an equal right of
control of the means
employed to carry out
the common purpose of
the venture.'
"'"46 Am.Jur. 2d Joint Ventures §
1 (1969). As we stated in Moore
v. Merchants & Planters Bank, 434
So. 2d 751, 753 (Ala. 1983),
'while
every
element
is
not
necessarily
present
in
every
case, it is generally agreed that
in order to constitute a joint
venture,
there
must
be
a
community of interest and a right
1070516 and 1070517
25
to
joint
control.'
(Emphasis
added [in Arndt].)
"'"What constitutes a joint
venture is a question of law, but
whether a joint venture exists
has been held to be a question of
fact for the jury. 46 Am.Jur. 2d
Joint Ventures § 7 (1969). Unless
the trial court can say that the
parties were or were not engaged
in a joint venture as a matter of
law,
the
question
must
be
presented
to
the
jury.
As
between the parties themselves,
the
relationship
of
joint
venturers is a matter of intent.
As
to
third
persons,
it
is
generally the rule that the legal
rather than the actual intent of
the parties controls. 46 Am.Jur.
2d Joint Ventures § 9 (1969).
'The burden of establishing the
existence of a joint venture is
upon the party asserting that the
relation
exists.'
Moore
v.
Merchants & Planters Bank, 434
So. 2d 751, 753 (Ala. 1983); Kim
v. Chamberlain, 504 So. 2d 1213
(Ala. Civ. App. 1987)."
"'547 So. 2d at 399-400; see Moore v.
Merchants & Planters Bank, 434 So. 2d 751,
753 (Ala. 1983).'
"Environmental WasteControl,
Inc.
v.
Browning-Ferris
Indus., Inc., 657 So. 2d 885, 887-88 (Ala. 1995).
"'The elements of a joint venture have been
held to be: a contribution by the parties
of money, property, effort, knowledge,
skill,
or
other
assets
to
a
common
undertaking; a joint property interest in
1070516 and 1070517
26
the subject matter of the venture and a
right to mutual control or management of
the enterprise; expectation of profits; a
right to participate in the profits; and
usually, a limitation of the objective to
a single undertaking or ad hoc enterprise.
While every element is not necessarily
present in every case, it is generally
agreed that in order to constitute a joint
venture, there must be a community of
interest and a right to joint control.'
"Moore v. Merchants & Planters Bank, 434 So. 2d 751,
753 (Ala. 1983)(citing 46 Am.Jur. 2d Joint Ventures
§ 12 (1969))."
Flowers v. Pope, 937 So. 2d 61, 65-66 (Ala. 2006).
The record does not contain substantial evidence to
create a jury question with regard to the existence of a joint
venture involving Hyundai. Nothing in the evidence supports
a finding of a community of interest. Hyundai never had a
joint ownership interest with any of the alleged joint
venturers in the property of the Russells or the McLemore
group upon the closings on the property. Additionally,
Hyundai did not provide financing for the purchase of the
property, and it had no risk or expenses with regard to the
purchase. Thus, nothing supports a finding of a community of
interest involving Hyundai with regard to the acquisition of
the property to constitute the project site. Cf. Flowers v.
Pope, 937 So. 2d at 68 (holding that there was no community of
1070516 and 1070517
27
interest because the alleged joint venturers did not have an
equal proprietary interest and only one of the alleged joint
venturers bore the risks and paid the expenses).
Moreover, the record indicates that Hyundai did not have
a right of control with regard to how the property was
obtained. Nothing indicates that Hyundai controlled the
actions of the IDB or other governmental entities with regard
to the selection of the property for the project site, the
negotiation of the option agreements on the property, or the
drafting of the option agreements. Thus, substantial evidence
of right of control by Hyundai is not presented in the record.
Although the evidence does tend to establish that a joint
venture may have existed between the IDB, the City, the
County, and the State for the purpose of enticing Hyundai to
locate
an
automobile-manufacturing
plant
in
Montgomery
County,
substantial evidence does not exist to create a jury question
as to whether Hyundai was a participant in the joint venture.
The
evidence
indicates
that
Hyundai
merely
evaluated
Montgomery's incentive package, compared it to the incentive
packages offered by other communities, and determined that
Montgomery provided the best place to build its plant. Thus,
the Russells and the McLemore group have not presented
1070516 and 1070517
28
substantial evidence indicating that Hyundai was a participant
in a joint venture; therefore, Hyundai cannot be liable for
the alleged breach of contract.
Because substantial evidence of neither an agency
relationship nor a joint venture is present in the record, the
summary judgment for Hyundai is affirmed.
II. Whether the amendment to the Russells' option
agreement waived the most-favored-nation clause in
the original option agreement.
The Russells and the IDB amended their option agreement
in February 2002. The IDB argues that the amendment
effectively waived the most-favored-nation clause. The
Russells contend that the amendment did not waive the most-
favored-nation clause set forth in the original option
agreement.
According to the Russells, the sole purpose of the
amendment to the option agreement was to extend the date of
the option another 120 days past the February 2002 expiration
date. They maintain that because the amendment to the option
agreement did not specifically state that it was deleting or
waiving the most-favored-nation clause, the clause remained in
effect. The Russells rely on the language in the amended
option agreement, which provides that "[e]xcept as amended
1070516 and 1070517
29
hereby, the Option is in all other respects ratified and
confirmed," and the language in the original option
agreement, which requires that "no waiver of any of [the]
terms and conditions [of the option agreement] shall be
effective unless made in writing and duly executed by the
parties" to the option agreement. They reason that because
the amendment to the option agreement did not specifically
delete or waive the most-favored-nation clause, that clause
remains enforceable.
The IDB maintains that because the language in the
amendment to the option agreement with regard to the purchase
price is unambiguous and no longer includes a formula to
determine the purchase price, i.e., a most-favored-nation
clause, but establishes a definite purchase price of $4,500
per acre, the most-favored-nation clause was eliminated from
the option agreement between the Russells and the IDB.
In Winkleblack v. Murphy, 811 So. 2d 521, 528 (Ala.
2001), this Court stated that if a court determines that a
contract provision is ambiguous and
"'there is a choice between a valid construction and
an invalid construction the court has a duty to
accept the construction that will uphold, rather
than destroy, the contract and that will give effect
and meaning to all of its terms. Additionally, "if
1070516 and 1070517
30
there exists inconsistency between two clauses of a
contract
which
cannot
be
reconciled,
the
inconsistency must be resolved in favor of the prior
clause, unless an intention to thereafter qualify is
plainly expressed."'"
(Quoting Homes of Legend, Inc. v. McCollough, 776 So. 2d 741,
746 (Ala. 2000).)
Parties may modify the terms of their agreement and "if
the terms of a subsequent agreement contradict the earlier
agreement, the terms of the later agreement prevail."
Cavalier Mfg., Inc. v. Clarke, 862 So. 2d 634, 641 (Ala.
2003).
"It is a general rule that a party claiming that
a contract modifies a prior contract must show that
the later contract is definite and certain as to the
terms of modification, and the modification extends
only so far as the terms are definite, certain and
intentional. 17 C.J.S. Contracts § 347, p. 424.
"'[W]hen the terms of the original contract are
undisputed and were thereafter altered or changed by
the mutual agreement of the parties and the extent
of that modification only was in dispute, it is
clearly "a question for the jury to determine."'
Jeff D. Jordan & Co. v. Yancey & Abernathy, 242 Ala.
385, 6 So. 2d 473 [(1942)]."
Johnson-Rast & Hays, Inc. v. Cole, 294 Ala. 32, 37, 310 So. 2d
885, 889 (1975).
"'[I]t is elementary that it is the terms of the
written contract, not the mental operations of one
of the parties, that control its interpretation.'
Kinmon v. J.P. King Auction Co., 290 Ala. 323, 325,
1070516 and 1070517
31
276 So. 2d 569, 570 (1973)(citing Todd v. Devaney,
365 Ala. 486, 92 So. 2d 24 (1957)). 'Stated another
way, the law of contracts is premised upon an
objective rather than a subjective manifestation of
intent approach.' Lilley v. Gonzales, 417 So. 2d
161, 163 (Ala. 1982). '"[A] court should give the
terms of the agreement their clear and plain meaning
and should presume that the parties intended what
the terms of the agreement clearly state."' Turner
v. West Ridge Apartments, Inc., 893 So. 2d 332 (Ala.
2004)(quoting Ex parte Dan Tucker Auto Sales, Inc.,
718 So. 2d 33, 36 (Ala. 1998))."
Harbison v. Strickland, 900 So. 2d 385, 391 (Ala. 2004).
The original option agreement between the Russells and
the IDB provided:
"3. If Purchaser elects to exercise this
Option, the purchase price for the Property shall be
determined as follows:
"Sellers and Purchaser shall each, at
its own cost and expense, secure a current
appraisal of the Property. The purchase
price shall be the average of the two
appraisals provided, however, in no event
shall the purchase price be less than
$4,500 per acre and further provided that
the purchase price shall in no event be
less than the price per acre paid to any
other landowner included in the project
planned for the Property. The acreage
shall be determined by a good and accurate
survey provided by Purchaser.
"....
"16. This Option constitutes the entire and
complete agreement between the parties hereto and
supersedes any prior oral or written agreements
between the parties with respect to the Property.
1070516 and 1070517
32
It is expressly agreed that there are no verbal
understandings or agreements which in any way change
the terms, covenants, and conditions herein set
forth, and that no modification of this Option and
no waiver of any of its terms and conditions shall
be effective unless made in writing and duly
executed by the parties hereto."
(Emphasis added.)
The amendment to the option agreement stated:
"1. It is hereby agreed that the purchase price
for the Property is Four Thousand Five Hundred and
No/100 ($4,500) per acre. The exact number of acres
to
be
determined
by
the
survey
provided
by
Purchaser.
"....
"3. Except as amended hereby, the Option is in
all other respects ratified and confirmed."
(Emphasis added.)
We hold that the terms of the amendment to the option
agreement are not "definite and certain" as to waiver of the
most-favored-nation clause in the original option agreement.
The language of the original option agreement specifically
provided that for a waiver of a term of the agreement to be
effective, the waiver must be in writing and executed by both
parties. Although the language in the amendment to the
option agreement sets forth the price per acre at $4,500, we
cannot conclude that the language in the amended option as a
1070516 and 1070517
33
matter of law modified or waived the most-favored-nation
clause in the Russells' original option agreement. Therefore,
a question for the jury exists as to whether the amended
option agreement modified or waived the most-favored-nation
clause in the Russells' original option agreement, and a
summary judgment for the IDB and against the Russells on this
ground is not proper.
III. Whether summary judgment for the IDB and
against the Russells and the McLemore group on the
basis that under the doctrine of merger the option
agreements had no effect once the deeds were
executed and delivered is proper.
The Russells and the McLemore group contend that the
trial court erred in entering a summary judgment for the IDB
because, they say, there is a genuine issue of material fact
as to the meaning and application of the most-favored-nation
clause in the option agreements. The IDB argues that,
pursuant to the doctrine of merger, the Russells' and the
McLemore group's execution and the delivery of the deeds to
their properties to the City and the County merged the option
agreements into the deeds and discharged any additional debt
owed for the properties; therefore, the IDB contends, their
breach-of-contract claims are barred.
1070516 and 1070517
34
When an option is exercised, the agreement becomes a
contract between the parties. McGuire v. Andre, 259 Ala. 109,
65 So. 2d 185 (1953), and Jenkins v. Thrift, 469 So. 2d 1278
(Ala. 1985).
"'Under
the
doctrine
of
"merger,"
ordinarily, in the absence of fraud or
mistake, when a contract to sell and convey
real estate has been consummated by the
execution and delivery of a deed, as in
this case, the preliminary contract becomes
functus officio, and the deed becomes a
sole memorial of the agreement, and upon it
the rights of the parties rest; but the
doctrine may be inapplicable to cases in
which stipulations of the preliminary
contract, instead of becoming merged in the
deed, are incorporated therein and thus
survive to confer independent causes of
action, and in such instances the intention
of the parties is of paramount importance.'
"Russell v. Mullis, 479 So. 2d 727, 730 (Ala.
1985)(citing Alger-Sullivan Lumber Co. v. Union
Trust Co., 207 Ala. 138, 92 So. 254 (1922); Roberts
v. Peoples Bank & Trust Co., 410 So. 2d 393 (Ala.
1982))."
Eubanks v. Pine Plaza Joint Venture, 562 So. 2d 220, 221-22
(Ala. 1990). See Boyce v. Cassese, 941 So. 2d 932, 942-43
(Ala. 2006).
However, a deed does not have to set forth the amount of
consideration. § 35-4-34, Ala. Code 1975. This Court stated
1070516 and 1070517
35
in Albreast v. Heaton, 276 Ala. 185, 188-90, 160 So.2d 470,
472-74 (1964):
"It is said in 32 C.J.S. Evidence § 950, pp.
873-876, as follows:
"'It is a well established rule,
sometimes embodied in statutes, that the
true consideration of a deed of conveyance
may always be inquired into, and shown by
parol evidence, without allegations of
fraud or mistake, or seeking reformation of
the deed, as for the purpose of showing the
amount or character of the consideration,
or by whom it was paid, for the obvious
reason that a change in, or contradiction
of, the expressed consideration does not
affect in any manner the covenants of the
grantor or grantee, and neither enlarges
nor
limits
the
grant.
It
is
also
permissible,
where
there
is
no
contradiction of the contractual terms of
the instrument, to show want or failure of
the consideration recited in a deed; but
these rules cannot be extended so as to let
in proof overturning the operative words of
the grant in a deed free from ambiguity, or
contradicting the deed itself or the
descriptions therein, or for the purpose of
invalidating the instrument or impairing
its effect as a conveyance, as by showing
that there was no consideration, unless
there are special circumstances such as
fraud, retention of possession by the
grantor,
or
the
like.
Where
the
consideration is stated not by way of mere
receipt or recital of fact, but in such a
way as to make it one of the terms of the
contract between grantor and grantee, a
different
consideration,
whether
variant
or
additional, cannot be shown by parol.'
1070516 and 1070517
36
"This court, in the case of Union Bank & Trust
Co. v. Royall, 226 Ala. 670, 148 So. 399(2)
[(1933)], held as follows:
"'It is a well settled general rule
that parol evidence is admissible to show
the true consideration of like kind as
expressed in the deed, that it is greater
or less, but evidence going to show a
consideration of a different kind is not
admissible. Pique Manier & Hall v.
Arendale, 71 Ala. 91 [(1881)]; Gilliland v.
Hawkins, 216 Ala. 97, 112 So. 454 [(1927)];
McGehee v. Rump, 37 Ala. 651 [(1861)]; 10
R.C.L. p. 1043, § 237; 22 C.J. p. 1161, §
1557; Maurice O'Connell v. Jasper Kelly,
114 Mass. 97 [(1873)].'
"....
"In Murphy v. Branch Bank at Mobile, 16 Ala. 90
[(1849)], we observed:
"'The
general
rule
is
too
well
established now to be shaken, that a
consideration not expressed in a deed, and
which
is
inconsistent
with
the
consideration expressed cannot be shown by
parol proof. 1 Greenl.Ev. §§ 285; Mead v.
Steger, 5 Port. 498 [(1837)]; [Toulmin v.
Austin] 5 Stew. and P. 410. If, however,
there is no consideration expressed, proof
may
be
received
to
show
what
the
consideration was. 1 Vesey, 128; [Davenport
v. Mason] 15 Mass. 92. And it is said, if
a deed mentions a consideration, and adds
the words for other considerations, that
proof may be received to show what those
other considerations are. So if a monied
consideration is expressed, proof may be
received to show that the sum was greater
or less than the amount expressed in the
deed. But the authorities deny that parol
1070516 and 1070517
37
proof can be received to establish a
consideration wholly different from that
expressed in the deed. Garrett v. [Stuart],
1 McCord, 514 [(1821)]; Starkie Ev. 1004;
[Mead v. Steger] 5 Port. 506; [Schemerhorn
v. Vanderheyden] 1 Johns. 139 [3 Am.Dec.
304] [(1806)].'"
In Gilliland v. Hawkins, this Court stated that
"'the consideration clause of a deed is
open to the influence of parol proof,
except for two purposes: First it is not
permissible for a party to the deed to
prove a different consideration, if such
change vary the legal effect of the
instrument; and, second, the grantor in a
deed, who acknowledges the receipt of
payment of the consideration, will not be
allowed,
by
disproving
the
fact,
to
establish a resulting trust in himself.'
"Subject to the two restrictions stated, it has
always been held that the consideration in a deed
may always be inquired into, and any other or any
additional consideration may be shown, if not
inconsistent with that expressed in the deed."
216 Ala. 97, 101, 112 So. 454, 457 (1927)(opinion on
rehearing). See also Milu, Inc. v. Duke, 204 So. 2d 31 (Fla.
Dist. Ct. App. 1967)(concluding that evidence is admissible to
show what consideration is paid although a deed has been
accepted because contractual provisions as to considerations
to be paid by the purchaser are ordinarily not merged in the
deed); Purbaugh v. Jurgensmeier, 240 Neb. 679, 483 N.W.2d 757
(1992)(holding that because the purchase price typically is
1070516 and 1070517
38
not included in the deed, this term of the contract of sale is
not merged with the deed).
Thus, the mere execution and delivery of a deed does not
merge the consideration in the contract of sale into the deed.
As we stated in Lipscomb v. Tucker, 294 Ala. 246, 256, 314 So.
2d 840, 848 (1975):
"If the receipt of valuable consideration is
recited in a deed, the recital is merely prima facie
evidence of the full agreed consideration and parol
evidence is admissible to show that other and
additional valuable consideration was to be received
by the grantor such as additional money or credit on
a pre-existing debt or mortgage."
Here,
the
deeds
in
question
provide
that
the
consideration is "$10.00 and other valuable consideration."
This recitation of consideration permits inquiry into like
consideration for the sale of the properties, and the
Russells' and the McLemore group's breach-of-contract claims
are not barred by the doctrine of merger.
We reject the IDB's argument that this Court's decision
in Carter v. Beck, 40 Ala. 599 (1867), requires the conclusion
that the execution and delivery of the deed forecloses the
breach-of-contract claims of the Russells and the McLemore
group. The IDB explains Carter as follows:
1070516 and 1070517
39
"Beck sued Carter for Carter's failure to convey
1229 acres of land as called for in their agreement.
Carter had only conveyed 1190 acres; however Beck
claimed that the unsecured personal promissory note
given for the purchase price, which was subsequently
paid in full, should have been reduced by a per-acre
price of $19.90 for the acreage not conveyed. The
buyer was suing the seller to recover an excess
amount paid, whereas in the case sub judice, the
seller
is
suing
the
buyer
for
an
alleged
underpayment. The Court emphatically held that the
deed was 'a complete execution of the antecedent
agreement to convey, and annulled it; and no action
at law can be sustained upon it.' 40 Ala. at 606."
(IDB's brief at p. 37.) The IDB argues that Carter requires
the conclusion that the delivery and execution of the deed
forecloses the breach-of-contract claims. However, the
language for consideration provided in the deed in Carter is
different from the language providing for consideration in the
deeds in this case. In summarizing the facts in Carter, it
was specifically noted:
"The deed recited the sale under the order of the
probate court; described the several tracts of land
by the numbers of the section, township, and range,
specifying the number of acres in each tract, and as
'containing in all about twelve hundred and twenty-
nine acres,' though the aggregate number of acres
specified as contained in the several tracts
amounted to eleven hundred and ninety 94-100;
recited that the 'said land was struck off to Wm.K.
Beck, for the sum of twenty-four thousand four
hundred
and
fifty-seven
10-100
dollars,'
and
conveyed to said Beck the title which the decedent
had at the time of his death."
1070516 and 1070517
40
40 Ala. at 603. Thus, unlike the deed in Carter where the
consideration was specified in the deed and the deed became
the evidence of the previous agreement between the seller and
the buyer, the deeds here do not provide the specific
consideration, but provide only for consideration of "$10.00
and other valuable consideration," which permits further
inquiry. Consequently, the deeds in this case are not "a
complete execution of the antecedent agreement to convey," 40
Ala. at 605, and the doctrine of merger is inapplicable.
Next, we must determine whether the language in the
option agreements is ambiguous. According to the Russells and
the McLemore group, the language in the most-favored-nation
clause is ambiguous and a genuine issue of material fact
exists for the jury as to whether the Shelton property was
part of "the project planned for this Property" and, if the
Shelton property is part of the project, whether, like
Shelton, the Russells and the McLemore group should have been
paid $12,000 per acre. They maintain that the following
presents substantial evidence to overcome a summary judgment
for the IDB on this issue:
1. The most-favored-nation clause provided that
"[t]he purchase price shall be the average of the
two appraisals provided, however, in no event shall
1070516 and 1070517
41
the purchase price be less than $4,500 per acre and
further provided that the purchase price shall in no
event be less than the price per acre paid to any
landowner included in the project planned for the
Property."
2. The language in the most-favored-nation clause
does not state that the purchase price would be no
less than "the price per acre paid by the IDB to any
other landowner in the project," but states that the
price would be no less than "the price per acre paid
to any other landowner included in the project."
3. The IDB's admission that it did not provide the
funds to purchase any of property for the project.
4. The project involved the assimilation and
preparation of land for the Hyundai automobile-
manufacturing facility.
5. The initial project plans included a rail yard
that ran east and west on the optioned property.
6. The IDB had approached Shelton several times
about acquiring an option agreement to purchase the
Shelton property.
7. Hyundai made a decision to run its rail yard
north to south only a few days before it announced
where it would locate its plant, and, at that time,
it requested that an option agreement be acquired on
the Shelton property to permit the revision of the
rail yard.
8. Because Shelton had been previously approached
about an option agreement on her property, Strange
and various officials confronted with Hyundai's
last-minute request knew that Shelton would not
agree to a purchase price of $4,500 per acre.
9. The option agreement on the Shelton property was
acquired by Mayor Bright, an ex officio member of
the IDB, and Randy George, the secretary of the IDB.
1070516 and 1070517
42
10. When the property for the project was surveyed,
as required by the project agreement, the survey
included the Shelton property as part of the project
site.
11. Section 3.20 of the project agreement requires
the Shelton property be acquired for the project.
12. The tax-abatement agreement between the IDB and
Hyundai includes the Shelton property.
13. The IDB leased the Shelton property as well as
the other property from Hyundai for development of
the project site.
The IDB argues that it cannot be held to have breached
the option agreements because, it says, Hyundai decided to
purchase the Shelton property with funds provided by the State
at a price greater than $4,500 per acre. The IDB reminds this
Court that the evidence establishes that it refused to have
any involvement with the purchase of the Shelton property. It
further argues that the evidence establishes that the IDB did
not pay any landowner with which it executed an option
agreement more than $4,500 per acre. It reasons that the only
reasonable interpretation of the option agreements is that the
most-favored-nation clause obligated the IDB to pay all
landowners with which it executed an option agreement the same
amount. It argues that the fact that another entity paid
Shelton a greater amount does not establish that the IDB
1070516 and 1070517
43
breached the option agreements with the landowners to whom it
paid $4,500 per acre.
Additionally, the IDB argues that the option agreements
are unambiguous with regard to which parcels of land were
"included in the project planned for this Property." They
disagree with the Russells and the McLemore group that the
Shelton property is part of the project and maintain that the
project agreement defines the "project planned for this
Property" as only the property as to which the IDB had
obtained options to purchase.
We agree with the Russells and the McLemore group that
the language in the option agreements is ambiguous, that it
cannot be resolved by rules of contract construction, and that
they presented substantial evidence creating a genuine issue
of material fact for the jury as to the meaning and
application of the most-favored-nation clause in the option
agreements. Specifically, the provisions, "[i]f Purchaser
elects to exercise this Option the purchase price for the
Property shall be determined as follows" and "the purchase
price shall in no event be less than the price per acre paid
to any other landowner included in the project planned for the
Property" are ambiguous because reasonable persons could
1070516 and 1070517
44
differ on whether "the price per acre paid to any other
landowner included in the project" refers to a purchase price
paid only by the IDB or to a purchase price paid by any
purchaser for property included in the project. If the
implication is that the language refers to payments only by
the IDB, then the most-favored-nation clause is triggered only
if the IDB paid other landowners more than it paid the sellers
–- the Russells and the McLemore group. If the language
refers to a purchase price paid by any purchaser on property
for the project, then the most-favored-nation clause is
triggered regardless of whether the purchase price was paid by
the IDB or another entity. Reasonable persons could differ
over whether the reference to "price per acre paid to any
other landowner" includes by implication the interlineation of
the phrase "by the IDB" so that the contract means that the
most-favored-nation clause is triggered only when the purchase
price paid by the IDB to any other landowner exceeds the price
paid to the seller. Thus, a jury question is presented.
Additionally, depending on resolution of the above ambiguity,
the evidence is in conflict as to whether Shelton was a
"landowner included in the project." Because reasonable
persons can differ on the meaning of the clause, i.e., whether
1070516 and 1070517
45
the language "price per acre paid to any other landowner
included in the project" obligated the IDB to pay the Russells
and the McLemore group $12,000 per acre and whether the
Shelton property was included as part of the project site, the
evidence presents questions for the jury to resolve, and the
summary judgment for the IDB is reversed.
The language in the option agreements is ambiguous, and
its meaning and whether the clause was breached cannot be
determined without considering evidence outside "the four
corners" of the option agreements.
"It is the province of the court to construe written
instruments, and declare the legal effect. But when
the legal operation and effect of an instrument
depends, not only on the meaning and construction of
its words, but upon collateral facts in pais
[outside the contract] and extrinsic evidence, the
inference from the facts to be drawn from the
evidence should be submitted to the jury."
Boykin v. Bank of Mobile, 72 Ala. 262, 269 (1882). See also
Merchants Nat'l Bank of Mobile v. Cotnam, 250 Ala. 316, 326,
34 So. 2d 122, 130 (1948)("'While it is the province of the
court to construe written contracts, where the meaning is to
be collected from the writing without the aid of evidence
aliunde [from another source], yet where the meaning, the
intent of the parties, depends upon the ascertainment of facts
1070516 and 1070517
46
aliunde the instrument, this "admixture of parol and written
evidence draws the whole to the jury requires the submission
of the issue to, the deduction of the inference of fact, by
the jury."'"). Thus, submission of the case to the jury is
proper, and the summary judgment for the IDB is reversed.
IV. Whether the trial court erred in granting the
IDB's motion for a protective order prohibiting
deposing Thomas T. Gallion III, counsel for the IDB.
Because we reverse the summary judgment for the IDB, we
do not reach the issue whether the trial court exceeded the
scope of its discretion by granting the IDB's motion for a
protective order prohibiting deposing Thomas T. Gallion III,
legal counsel for the IDB. Reconsideration of this issue by
the trial court on remand is proper.
Conclusion
The summary judgment for Hyundai is affirmed; the summary
judgment for the IDB is reversed, and this case is remanded
for proceedings consistent with this opinion.
1070516 –- AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
1070517 –- AFFIRMED IN PART; REVERSED IN PART; AND
REMANDED.
1070516 and 1070517
47
Cobb, C.J., and See, Lyons, Woodall, Smith, and Bolin,
JJ., concur.
Murdock, J., concurs in part and dissents in part.
1070516 and 1070517
48
MURDOCK, Justice (concurring in part and dissenting in part).
I agree with the main opinion that the trial court did
not err in entering a summary judgment for Hyundai, and I
therefore concur in Part I of the main opinion. I
respectfully dissent, however, as to the issue whether the
amendment to the Russell option agreement effectively removed
the most-favored-nation clause from the agreement between the
parties. Finally, I agree with the reversal of the judgment
in favor of the IDB and against the McLemore group, but, for
the reasons described below, I would remand that portion of
the case with different instructions than does the main
opinion.
The Amendment to the Russell Option Agreement
The original option agreement signed by the Russells
contained a single sentence describing the price to be paid to
the Russells for their property. That sentence read as
follows:
"The purchase price shall be the average of the two
appraisals provided, however, in no event shall the
purchase price be less than $4,500 per acre and
further provided that the purchase price shall in no
event be less than the price per acre paid to any
other landowner included in the project planned for
this Property."
1070516 and 1070517
49
Similarly, the amendment to the option agreement signed
by the Russells contained a single sentence describing the
price to be paid to the Russells for their property. That
sentence reads as follows: "It is hereby agreed that the
purchase price for the Property is Four Thousand Five Hundred
and No/100 ($4,500.00) per acre."
On the basis of the well established principles stated by
this Court in such cases as Harbison v. Strickland, 900 So. 2d
385 (Ala. 2004), and Johnson-Rast & Hayes, Inc. v. Cole, 294
Ala. 32, 310 So. 2d 885 (1975), I must dissent as to the
conclusion reached by the main opinion regarding the amendment
to the Russells' option agreement. As this Court stated in
Harbison:
"'[I]t is elementary that it is the terms of the
written contract, not the mental operations of one
of the parties, that control its interpretation.'
Kinmon v. J.P. King Auction Co., 290 Ala. 323, 325,
276 So. 2d 569, 570 (1973) (citing Todd v. Devaney,
365 Ala. 486, 92 So. 2d 24 (1957)). 'Stated another
way, the law of contracts is premised upon an
objective rather than a subjective manifestation of
intent approach.' Lilley v. Gonzales, 417 So. 2d
161, 163 (Ala. 1982). '"[A] court should give the
terms of the agreement their clear and plain meaning
and should presume that the parties intended what
the terms of the agreement clearly state."' Turner
v. West Ridge Apartments, Inc., 893 So. 2d 332 (Ala.
2004) (quoting Ex parte Dan Tucker Auto Sales, Inc.,
718 So. 2d 33, 36 (Ala. 1998))."
1070516 and 1070517
50
900 So. 2d at 391 (emphasis added).
In essence, the main opinion states that it is not clear
that the amendment to the option agreement definitely and
certainly modifies the most-favored-nation clause. Based on
an "objective approach," I must conclude that it does. The
requirement articulated in Johnson-Rast & Hayes, Inc., is that
the amendment to the contract be "definite and certain as to
the terms of the modification." 294 Ala. at 37, 310 So. 2d at
889. Read objectively, the terms of the amendment to the
option agreement are indeed "definite and certain" as to the
price to be paid for the Russells' property.
It also is true that the original option agreement states
that "no modification of this Option and no waiver of any of
its terms and conditions shall be affected unless made in
writing and duly executed by the parties hereto." The
amendment to the option agreement satisfies this condition.
Reversal of the Judgment
in Favor of the IDB and Against the McLemore Group
A written contract may be of such a nature as to require
reference to parol evidence or facts in order to determine its
"legal operation and effect" for at least two different
reasons. First, the "meaning and construction of its words"
1070516 and 1070517
51
might be ambiguous; that is, the words may be susceptible to
more than one reasonable interpretation. Second, even if the
meaning of the words used in a contract is not ambiguous, the
legal operation and effect of those words may depend upon
"collateral facts in pais." Boykin v. Bank of Mobile, 72
Ala. 262, 269 (1882). As this Court stated in Boykin:
"[W]hen the legal operation and effect of an instrument
depends, not only on the meaning and construction of its
words, but upon collateral facts in pais [outside the
contract] and extrinsic evidence, the inference from the facts
to be drawn from the evidence should be submitted to the
jury." 72 Ala. at 269.
In this case, I believe we are in error to say that the
term "project," as used in the option agreements, and the
concept of property "included in the project" are ambiguous.
Neither that term nor that concept is susceptible to more than
one reasonable meaning. It is true that, in order ultimately
to determine the "legal operation and effect" of the option
agreement's reference to land "included in the project," it is
necessary to consult facts not found within the four corners
of the instrument, i.e., "facts in pais." But this is no
different than the manner in which unambiguous contractual
1070516 and 1070517
52
provisions often depend upon some reference to external facts
in order to establish their operation.
For example, in this very case, the "legal operation and
effect" of the pricing mechanism in the most-favored-nation
clause is not discernible solely from the four corners of the
option agreement in which it is found. Instead, it requires
a consideration of the price at which other parcels in the
project ultimately are purchased. Yet, we would not say that
the pricing mechanism is "ambiguous." Its "meaning" is clear;
it simply depends upon collateral facts in pais for its
"operation and effect."
In the same way, the "meaning" of the reference in the
option agreements to land "included in the project" is clear.
That we must examine "collateral facts in pais" in order to
determine which parcels of land ultimately were included in
the project does not make the use of that term in the
agreement ambiguous.
That said, and upon consideration of the parol evidence
with which we are presented in this case, I do not find there
to be a genuine issue of material fact as to whether the
Shelton property was "included in the project." Nor do I find
there to be any doubt as to the manner in which the option
1070516 and 1070517
53
agreement was intended to operate in regard to the issue of
"who the purchaser must be in order to trigger the most-
favored-nation clause," at least not as applied to the facts
with which we are presented. The purchase of the Shelton
property in the manner "arranged" and orchestrated by the
governmental entities that engaged in a joint venture to
purchase land for use by Hyundai clearly constituted a
purchase of property "included in the project" for purposes of
the most-favored-nation clause. I therefore would instruct
the trial court on remand to enter a judgment for the McLemore
group. | October 10, 2008 |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.