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cf8d8521-761a-4978-b1bc-b70366eca605 | Ex parte VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: G.Thomas Surtees, in his official capacity as commissioner of the Alabama Department of Revenue, and the Alabama Department of Revenue v. VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc.) | N/A | 1070718 | 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
_________________________
1070718
_________________________
Ex parte VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: G. Thomas Surtees, in his official capacity as
commissioner of the Alabama Department of Revenue, and the
Alabama Department of Revenue
v.
VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc.)
(Montgomery Circuit Court, CV-03-3172;
Court of Civil Appeals, 2060478)
LYONS, Justice.
1070718
2
VFJ Ventures, Inc., f/k/a VF Jeanswear, Inc. ("VFJ"),
sued in the Montgomery Circuit Court the commissioner of the
Alabama Department of Revenue, in his official capacity, and
the Alabama Department of Revenue. At the time the complaint
was filed, Dwight Carlisle was the commissioner of the Alabama
Department of Revenue. During the pendency of the case, G.
Thomas Surtees was substituted pursuant to Rule 25(d), Ala. R.
Civ. P., as a defendant, in his official capacity, when he
became the commissioner of the Alabama Department of Revenue.
Tim Russell is now the commissioner of the Alabama Department
of Revenue; he is now a defendant, in his official capacity,
pursuant to Rule 43(b), Ala. R. App. P. (Russell and the
Alabama Department of Revenue will hereinafter be referred to
collectively as "the Department.") The trial court entered a
judgment in favor of VFJ. VFJ appealed to the Court of Civil
Appeals; that court reversed the judgment of the trial court
and remanded the case for the entry of a judgment in favor of
the Department. Surtees v. VFJ Ventures, Inc., [Ms. 2060478,
February 8, 2008] ___ So. 2d ___ (Ala. Civ. App. 2008). VFJ
then filed a petition for certiorari with this Court; we
granted certiorari review.
1070718
Although Justice See did not sit for oral argument of
1
this case, he has viewed the video recording of that oral
argument.
3
After considering the record in this case, the briefs of
the parties and the amici curiae, the oral arguments of the
parties, and the opinion of the Court of Civil Appeals, we
agree with the views expressed by Presiding Judge Thompson in
his thorough and well reasoned opinion. In light of that
thoughtful opinion, we see no need to explicate further. We
affirm the judgment of the Court of Civil Appeals, and we
adopt Presiding Judge Thompson's opinion in its entirety, as
the opinion of this Court.
AFFIRMED.
Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin,
1
Parker, and Murdock, JJ., concur. | September 19, 2008 |
54e47725-874d-44c0-b448-4dcda1feabb9 | Ex parte Donald McInish. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: KGS Steel, Inc. v. Donald McInish) | N/A | 1060600 | 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
_________________________
1060600
_________________________
Ex parte Donald McInish
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: KGS Steel, Inc.
v.
Donald McInish)
(Jefferson Circuit Court, Bessemer Division, CV-99-392;
Court of Civil Appeals, 2040526)
BOLIN, Justice.
1060600
2
In April 1999, Donald McInish sued his employer, KGS
Steel, Inc., seeking worker's compensation benefits for
injuries he allegedly sustained during the course of his
employment as a truck driver with KGS. McInish specifically
alleged that, during the course of his employment as a truck
driver, he had been subjected to "violent bouncing and jerking
movement" that had caused him to suffer from carpal tunnel
syndrome and that this movement, combined with "strain caused
by strapping and binding cargo loads," had caused him to
suffer injury to his shoulders and neck. McInish further
alleged that he had suffered both a temporary- and a
permanent-partial disability as the result of his alleged
respective injuries.
Following an ore tenus proceeding, the trial court
entered an order finding that McInish was totally and
permanently disabled as a result of his neck and shoulder
injuries; that he had sustained a 100% loss of earning
capacity; that he had proven both medical and legal causation;
and that KGS was responsible for payment of certain medical
expenses incurred by McInish as a result of treatment
undertaken by a medical provider not authorized by KGS.
1060600
3
KGS appealed the trial court's judgment to the Court of
Civil Appeals. The Court of Civil Appeals, in a per curiam
opinion with which one judge concurred (three judges concurred
in the result), reversed the judgment of the trial court, on
the basis that McInish had failed to prove causation by clear
and convincing evidence. KGS Steel, Inc. v. McInish, [Ms.
2040526, June 30, 2006] __ So. 2d __ (Ala. Civ. App. 2006).
We granted McInish's petition for a writ of certiorari to
determine: (1) whether the Court of Civil Appeals applied an
improper standard of review; and (2) whether the Court of
Civil Appeals improperly considered only the testimony of the
medical experts in determining the issue of causation, in
contravention of this Court's decision in Ex parte Price, 555
So. 2d 1060, 1063 (Ala. 1989).
Facts
The Court of Civil Appeals set forth the following
statement of the facts:
"McInish was a tractor-trailer truck driver for KGS,
and there was evidence adduced at trial indicating
that the suspension system of his assigned truck
subjected
him
to
violent
vibrations.
McInish
testified
that
during
the
last
year
of
his
employment with KGS he had started to experience
severe pain, numbness, and a tingling sensation in
1060600
4
his hands and arms and that he had reported those
symptoms to KGS.
"McInish was referred by KGS to Dr. Donald Autry
for treatment. Dr. Autry determined that McInish
had carpal tunnel syndrome and performed a surgical
carpal-tunnel-release procedure on each of McInish's
wrists. In subsequent months, McInish reported
further pain, including pain in his shoulder and
upper arm. McInish was then referred to Dr. Richard
Meyer, an orthopedic surgeon, for a second opinion;
Dr. Meyer determined that McInish had problems in
his neck and hand. Dr. Meyer suggested that McInish
undergo a second carpal-tunnel-release procedure;
however, because McInish was dissatisfied with the
results of the carpal-tunnel-release procedures that
had already been performed and because he did not
want to go through another carpal-tunnel-release
procedure if carpal tunnel syndrome was not his
principal
medical
problem, McInish sought the
opinion of his own personal physician without
obtaining
KGS's
approval. McInish's personal
physician
then
referred
McInish
to
Dr.
Cem
Cezayirli, a neurosurgeon. Dr. Cezayirli, who was
also not authorized by KGS to treat McInish,
nonetheless admitted him into the hospital for
cervical-disk surgery, during which significant
ruptured-disk
material
and
a
herniated
disk
compressing the neuroforamen and the spinal cord
were found. After his cervical-disk surgery,
McInish was permitted by Dr. Cezayirli to return to
work. However, McInish was reportedly unable to
perform his job because of pain, and he has not
worked since January 27, 1999.
"....
"Dr. Meyer, McInish's authorized orthopedic
surgeon, testified at his deposition that after a
magnetic-resonance-imaging
procedure
had
been
performed in late 1998 and had revealed bulging
cervical disks and neck-nerve pressure related to
1060600
5
osteoarthritis, he had referred McInish to Dr. John
S. Kirkpatrick, who had concluded that the arthritis
in McInish's neck 'would probably not be work
related.' Dr. Meyer also opined that the majority
of the pain McInish had experienced was related to
that
osteoarthritis and denied that McInish's
occupation could have caused or aggravated his
osteoarthritis. Dr. Meyer further opined on
cross-examination by McInish's attorney that driving
a truck subject to constant vibration and shaking
would not adversely affect McInish's condition as to
his neck and shoulders.
"Dr. Edward Kelsey, a pain specialist whom
McInish consulted without authorization from KGS,
opined that McInish suffered from degenerative joint
disease (essentially, a pronounced case of advanced
osteoarthritis)
and
from
'post
laminectomy
syndrome.' After indicating that repeated trauma
'can cause microscopic changes in the bone structure
and
in
the
joints'
so
as
to
accelerate
osteoarthritis, he opined that McInish's occupation
would be 'consistent with' this type of trauma and
that the problems reported by McInish 'could have
been' as a result of cumulative trauma. However,
Dr. Kelsey also opined that McInish's advanced
osteoarthritis had set in over the course of an
approximately 'ten-year period of time,' whereas
McInish worked for KGS for less than one and a half
years before filing a first report of injury in
November
1997.
Further,
Dr.
Kelsey,
on
cross-examination, admitted that he did not have any
evidence to dispute Dr. Kirkpatrick's and Dr.
Meyer's opinions that McInish's neck and shoulder
conditions were not work related, and in response to
a question concerning whether he could state with
any degree of medical certainty that McInish's neck
and shoulder problems were work related, he stated
that he could not definitely say that those symptoms
were work related.
1060600
6
"Dr. Laura B. Kezar, a physician who examined
McInish in March 1999 upon the referral of Dr.
Thomas, noted in her report of that examination her
impression that McInish suffered from cervical
spondylosis and degenerative disk disease; she noted
in her report that McInish had not supplied a
'history to suggest an acute disc herniation related
to a traumatic event at work' and that he had
reported 'no history of neck pain until after the
surgery on his neck' was performed by Dr. Cezayirli.
Dr.
Kezar
opined
that
McInish's
neck
pain
'appear[ed] to be mainly myofascial in origin'
(i.e., muscular) and averred that it 'd[id] not seem
likely' that McInish's work caused the problems in
his neck 'based on the history that he ha[d] given'
her.
"Certain records
of
Dr.
Cezayirli,
who
performed
the cervical-disk surgery on McInish, were also
admitted into evidence. In a March 1999 letter to
Dr. Reid S. Christopher, Dr. Cezayirli indicated
that McInish had told him that 'he thinks this is
work-related.'
Dr.
Cezayirli
opined
that
'it
certainly could be work-related,' but he stated that
it was difficult for him to render such an opinion
because, he said, McInish consulted him well after
any on-the-job injury would have occurred. However,
in a November 1999 letter to McInish's counsel, he
expressly deferred to the treating physician who had
seen McInish at the time he had originally reported
symptoms (e.g., Dr. Meyer).
"At trial, McInish himself testified that he had
not experienced comparable levels of neck and
shoulder pain before working for KGS, that he
believed that that pain could be related to
'throwing ... chains and binders and driving [his]
truck,' and that KGS was responsible for his having
sustained what he termed 'spinal cord damage'
because, he said, KGS 'wouldn't take care of the
problem in my neck and kept pushing me off.'
However, on cross-examination, McInish admitted
1060600
7
having executed an application for disability-income
benefits in March 1999 on which appeared the
response of 'no' to a question asking whether his
claimed disability had resulted from his employment;
he also admitted having received monthly benefit
payments of over $500 after that application was
submitted. McInish further testified to having
unsuccessfully requested KGS personnel in April 1999
to amend his November 1997 written first notice of
injury, which had indicated only 'wrist pain and
numbness,' to include a shoulder injury."
KGS Steel, __ So. 2d at __.
Discussion
In reversing the trial court's decision, the Court of
Civil Appeals applied the following standard of review:
"It
is
well
settled
that
when
the
preponderance-of-the-evidence standard applies to a
particular workers' compensation claim, such as one
arising from an injury caused by a sudden trauma, an
appellate court will not reverse a judgment based
upon a particular 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 Assur.
Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989))
(emphasis added). However, as the main opinion in
Ex parte Russell Corp., 725 So. 2d 264 (Ala. 1998),
indicates, a mere 'substantial evidence' standard of
appellate review is not to be applied if the
'clear-and-convincing-proof'
standard
was
applicable
at trial. In other words, by incorporating a 'clear
and convincing' evidentiary standard into the Act
with
respect
to
gradual-deterioration
and
1060600
8
cumulative-stress injuries, the legislature has
'require[d] a comparison between the supporting
evidence
and
any
countervailing
evidence'
on
appellate review. See Ex parte Southern Energy
Homes, Inc., 873 So. 2d 1116, 1128 (Ala. 2003)
(Johnstone, J., dissenting, joined by Woodall, J.).
Thus, 'there is necessarily a "reweighing" of the
evidence at the appellate level[] for th[e] limited
purpose'
of
determining
whether
factual
determinations are supported by the appropriate
level of evidence (here, 'clear and convincing
proof'). See id. at 1131 (Harwood, J., dissenting)
(emphasis omitted)."
KGS Steel, __ So. 2d at __. The per curiam opinion of the
Court of Civil Appeals ultimately held that the expert medical
evidence presented amounted to "nothing more than a showing of
'possible' causation" that was insufficient to establish that
McInish's injuries arose out of his employment. KGS Steel, __
So. 2d at __.
Justice Murdock, a member of the Court of Civil Appeals
when that court decided this case, explained, in a special
writing concurring in the result, the import of the court's
application in this case of the particular standard of
appellate review, stating:
"Were the lead opinion to be joined by a
majority of the judges of this court, it would
disturb
what
heretofore
have
been
the
most
fundamental and settled of principles governing
appellate
review--principles
that
are
firmly
1060600
9
established in workers' compensation cases, just as
they are in civil cases generally. ...
"....
"The
lead
opinion
reaches
its
result
by
proposing to unsettle two fundamental principles of
appellate review. The first is that when a trial
court makes findings based on evidence received ore
tenus, those findings are to be upheld on appeal if
supported by 'substantial evidence.' The second
principle, which is a corollary to and informs the
proper operation of the first, is that when evidence
is received by a trial court ore tenus, it is
uniquely the trial court's responsibility to assess
the
quality
of
that
evidence,
including
its
credibility, and the weight to be assigned thereto,
and that the appellate courts are not equipped, and
it is not their role, to make their own assessment
of the quality, credibility, or weight to be
assigned to the evidence. In other words, appellate
courts do not reweigh the evidence."
KGS Steel, __ So. 2d at __ (Murdock, J., concurring in the
result).
We initially point out that the authority relied on by
the per curiam opinion of the Court of Civil Appeals in
fashioning this standard of review is not binding authority
and has no precedential value. This Court's opinion in Ex
parte Russell Corp., 725 So. 2d 264 (Ala. 1998), was joined by
only four Justices serving on this Court at that time. Of
course the dissenting opinions of Justice Johnstone and
1060600
10
Justice Harwood in Ex parte Southern Energy Homes, Inc., 873
So. 2d 1116 (Ala. 2003), are not binding precedent.
Second, this Court has repeatedly held that "the [1992
Workers' Compensation] Act 'did not alter the rule that [the
Court of Civil Appeals] does not weigh the evidence before the
trial court.' (Emphasis added.)" Ex parte Phenix Rental Ctr.,
873 So. 2d 226, 229 (Ala. 2003)(quoting Edwards v. Jesse
Stutts, Inc., 655 So. 2d 1012, 1014 (Ala. Civ. App. 1995));
see also Ex parte Kmart Corp., 812 So. 2d 1205, 1207 (Ala.
2001); Ex parte Golden Poultry Co., 772 So. 2d 1175, 1176-77
(Ala. 2000); and Ex parte Alabama Ins. Guar. Ass'n, 667 So. 2d
97 (Ala. 1995).
This Court's holding that appellate courts do not reweigh
the evidence on appeal in a workers' compensation case is
supported by the express language of the Workers' Compensation
Act itself. Section 25-5-81(c), Ala. Code 1975, sets forth
two evidentiary standards and further designates the type of
workers' compensation claims to which each evidentiary
standard is applicable. Section 25-5-81(c) provides:
"(c) Evidence. The decision of the court shall
be based on a preponderance of the evidence as
contained in the record of the hearing, except in
cases involving injuries which have resulted from
1060600
11
gradual deterioration or cumulative physical stress
disorders, which shall be deemed compensable only
upon a finding of clear and convincing proof that
those injuries arose out of and in the course of the
employee's employment.
"For the purposes of this amendatory act, 'clear
and convincing' shall mean evidence that, when
weighted
against evidence in opposition, will
produce in the mind of the trier of fact a firm
conviction as to each essential element of the claim
and a high probability as to the correctness of the
conclusion. Proof by clear and convincing evidence
requires
a
level
of
proof
greater
than
a
preponderance of the evidence or the substantial
weight of the evidence, but less than beyond a
reasonable doubt."
(Emphasis added.)
The statutory definition of clear and convincing evidence
found in § 25-5-81(c) reaffirms and embodies the well-
established and fundamental principle of appellate review that
the weighing of evidence presented ore tenus in a workers'
compensation case is to be performed by the trier of fact, not
the appellate court. Indeed, the trial court is in the best
position to weigh conflicting evidence and to judge the
credibility of witnesses in determining such issues as
causation. See Ex parte Alabama Ins. Guar. Ass'n, supra;
Drummond Co. v. Green, 895 So. 2d 977 (Ala. Civ. App. 2004).
1060600
12
Section 25-5-81(e), Ala. Code 1975, sets forth the
following standards that govern the appellate court's review
of a trial court's findings of fact and rulings on issues of
law in a workers' compensation case, including standards of
proof:
"(e) Review. From an order or judgment, any
aggrieved party may, within 42 days thereafter,
appeal to the Court of Civil Appeals and review
shall be as in cases reviewed as follows:
"(1) In reviewing the standard of
proof set forth herein and other legal
issues, review by the Court of Civil
Appeals shall be without a presumption of
correctness.
"(2) In reviewing pure findings of
fact, the finding of the circuit court
shall not be reversed if that finding is
supported by substantial evidence."
(Emphasis added.)
Then Judge Murdock noted in his special writing in this
case that § 25-5-81(e) does not "draw[] any distinction
between [the] two trial-court evidentiary standards," i.e.,
preponderance of the evidence versus clear and convincing
proof, when setting forth the applicable appellate standard of
review for workers' compensation cases.
1060600
13
Although the statutorily prescribed substantial-evidence
standard of appellate review found in § 25-5-81(e) draws no
distinction
between
the
preponderance-of-the-evidence
standard
of proof and the clear-and-convincing-evidence standard of
proof, nevertheless, the two standards obviously differ as to
the quantum of proof necessary to sustain a factual finding on
appeal based on the two different standards. The quantum of
proof necessary to sustain on appeal a finding of fact based
on the heightened clear-and-convincing-evidence standard of
proof is greater than the quantum of proof necessary to
sustain on appeal a finding of fact based on the lesser
preponderance-of-the-evidence standard. Then Judge Murdock
explained, in his special writing, the substantial-evidence
standard of review in the context of the heightened clear-and-
convincing evidentiary standard as follows:
"[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.' E.g.,
West v. Founders Life Assurance Co. of Florida, 547
So. 2d 870, 871 (Ala. 1989) (quoted with approval in
Ex parte Southern Energy Homes, Inc., 873 So. 2d
[1116] at 1122 [(Ala. 2003)]).
"Although 'substantial evidence' must be found
by the appellate court in order to sustain the trial
court's findings in any workers' compensation case,
1060600
14
it is necessary to take into consideration the
nature of the finding that must be made by the trial
court in order to determine what qualifies as
'substantial evidence' to support that finding. In
a case in which, in order to find for the plaintiff,
the trial court is required to find that a given
fact has been established by a 'preponderance' of
the evidence, the evidence is not sufficient to
allow appellate affirmance of a judgment based on
that finding unless the record contains evidence
from which the fact-finder reasonably could have
determined
that
the
fact
was
proven
by
a
preponderance of the evidence. In a case in which,
in order to find for the plaintiff, the trial court
is required to find that a given fact has been
established by 'clear and convincing' evidence, the
evidence is not sufficient to allow appellate
affirmance of a judgment based on that finding
unless the record contains evidence from which the
fact-finder reasonably could have determined that
the fact was proven by clear and convincing
evidence. Contrary to the suggestion in the lead
opinion, the process of making this determination by
an appellate court is, in its essence, no different
in one case than in the other, and no more requires
an appellate court to engage in the weighing or
'reweighing' of evidence in one case than in the
other.
"In Ex parte Norwood Hodges Motor Co., 680 So.
2d 245 (Ala. 1996), our Supreme Court considered the
quantum of evidence necessary to require submission
of factual questions to the jury when the ultimate
evidentiary
standard
is
greater
than
a
mere
preponderance of the evidence. The Court began its
analysis by taking note of § 12-21-12(a) and (c),
Ala. Code 1975, which state:
"'"(a) In all civil actions brought in
any court of the state of Alabama, proof by
substantial evidence shall be required to
submit an issue of fact to the trier of the
1060600
15
facts. Proof by substantial evidence shall
be required for purposes of testing the
sufficiency of the evidence to support an
issue of fact in rulings by the court,
including without limitation, motions for
summary judgment, motions for directed
verdict,
motions
for
judgment
notwithstanding the verdict, and other such
motions
or
pleadings
respecting
the
sufficiency of evidence."
"'____________
"'"(c) With respect to any issue of
fact for which a higher standard of proof
is required, whether by statute, or by rule
or decision of the courts of the state,
substantial
evidence
shall
not
be
sufficient to carry the burden of proof,
and such higher standard of proof shall be
required with respect to such issue of
fact."'
"680 So. 2d at 248 (emphasis added).
"Although Ex parte Norwood Hodges Motor Co.
involved the question whether the trial court had
erred in granting a directed verdict (now a judgment
as a matter of law ...) to a defendant on the
question of the plaintiff's entitlement to punitive
damages, as noted in the above-quoted text of §
12-21-12(a), the statute contemplates the same
treatment for any motion testing the sufficiency of
the evidence. Logically, of course, the same
treatment is proper for testing the sufficiency of
the evidence by an appellate court. It therefore is
instructive that, in considering the text of both
subsection (a) and subsection (c) of § 12-21-12, the
Supreme Court concluded in Ex parte Norwood Hodges
Motor Co. that
1060600
16
"'the trial court should have determined
whether the evidence warranted submitting
the issue of punitive damages to the jury,
i.e., whether there was evidence of such
quality
and
weight
that
a
jury
of
reasonable and fair-minded persons could
find by clear and convincing evidence that
the defendant consciously or deliberately
engaged in fraud.'
"Ex parte Norwood Hodges Motor Co., 680 So. 2d at
249 (emphasis added). As our Supreme Court
explained in Lowman v. Piedmont Executive Shirt
Manufacturing Co., 547 So. 2d 90 (Ala. 1989),
"'a plaintiff, in order to go to the jury
on a claim [alleging intentional tortious
conduct], must make a stronger showing than
that required by the "substantial evidence
rule" as it applies to the establishment of
jury issues in regard to tort claims
generally. See Code 1975, § 12-21-12.
Therefore, ... the plaintiff must present
evidence that, if accepted and believed by
the jury, would qualify as clear and
convincing proof of fraud.'
"547 So. 2d at 95 (quoted with approval in Hobbs v.
Alabama Power Co., 775 So. 2d 783, 787 (Ala. 2000),
ITT Specialty Risk Servs., Inc. v. Barr, 842 So. 2d
638, 646 (Ala. 2002), and Soti v. Lowe's Home Ctrs.,
Inc., 906 So. 2d 916, 923 (Ala. 2005)) (emphasis
added). Cf. Palm Harbor Homes, Inc. v. Crawford,
689 So. 2d 3, 9 (Ala. 1997) (quoting with approval
the trial court's order denying a postjudgment
motion for relief in which the trial court explained
that '"[t]here was evidence from which the jury
could find, by a clear and convincing standard,
that"' the requisite element of the plaintiff's
claim had been proven).
1060600
17
"As I wrote in Gary v. Crouch, 923 So. 2d 1130
(Ala. Civ. App. 2005):
"'The
"clear-and-convincing-evidence"
standard ... is the standard ultimately to
be applied at trial by the fact-finder in
this
[defamation]
case,
just
as
the
"preponderance-of-the-evidence"
standard
is
applied
in
most
civil
cases
by
the
fact-finder. The responsibility for making
ultimate factual determinations resides
with the fact-finder, in this case a jury,
not with a trial judge in considering a
summary-judgment motion. It is no more the
responsibility
of
a
trial
judge
in
considering a motion for a summary judgment
to make the ultimate determination of
whether a plaintiff in a defamation suit
has proven constitutional malice by clear
and convincing evidence than it would be
for
a
trial
judge
considering
a
summary-judgment motion in an ordinary
lawsuit to determine whether a plaintiff
has demonstrated the elements of his or her
claim by a preponderance of the evidence.
"'When the ultimate standard to be
applied by the fact-finder in a civil case
is
a
preponderance-of-the-evidence
standard, it is for the trial judge ... to
determine only whether there is a genuine
issue
of
material
fact.
That
determination, in turn, is a function of
whether there is "substantial evidence" as
to that material fact. In the context in
which preponderance of the evidence is the
ultimate
standard
of
proof
for
the
fact-finder, substantial evidence has been
defined simply as that evidence from which
the fact-finder could reasonably infer the
existence of the fact sought to be proved.
1060600
18
"'Similarly, substantial evidence in
the context of a case in which the ultimate
standard for a decision is clear and
convincing evidence is evidence that a
fact-finder
reasonably
could
find
to
clearly and convincingly establish [the
existence of] the fact sought to be proved.
Thus, even if a trial judge reaches his or
her own conclusion that the evidence
presented does not clearly and convincingly
establish constitutional malice, it is not
for him or her to act upon that factual
determination, but to determine instead
whether
the
actual
fact-finder
could
reasonably make a different finding based
upon the same evidence. ... [T]he opinion
of the United States Supreme Court in
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 106 S. Ct. 2505, 91 L. Ed.2d 202
(1986), ... verifies that any different
conclusion would be inappropriate.'
"923 So. 2d at 1141-42 (Murdock, J., concurring in
the result) ....
"Likewise, the evidence necessary for appellate
affirmance of a judgment based on a factual finding
in the context of a case in which the ultimate
standard for a factual decision by the trial court
is clear and convincing evidence is evidence that a
fact-finder reasonably could find to clearly and
convincingly establish the fact sought to be proved.
Even if an appellate court in considering the
evidence of record would reach its own conclusion
that the evidence presented does not clearly and
convincingly establish the fact sought to be proved,
it is not for that court to act upon its own factual
determination but to determine instead whether the
fact-finder below reasonably could have made a
different finding based on the same evidence.
"Although it dealt with the issue of the
sufficiency of the evidence in the context of
1060600
19
summary-judgment and directed-verdict motions, the
reasoning of the United States Supreme Court in
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106
S.Ct. 2505, 91 L. Ed. 2d 202 (1986), is persuasive:
"'[T]he inquiry involved in a ruling on a
motion for summary judgment or for a
directed
verdict
necessarily
implicates
the
substantive evidentiary standard of proof
that would apply at a trial on the merits.
...
"'... [In a defamation case], where
the First Amendment mandates a "clear and
convincing" standard, the trial judge in
disposing of a directed verdict motion
should
consider
whether
a
reasonable
fact-finder could conclude, for example,
that the plaintiff had shown actual malice
with convincing clarity.
"'... [I]n United States v. Taylor,
464 F. 2d 240 (2d Cir. 1972), ... [the
Court] pointed out that almost all the
Circuits had adopted something like Judge
Prettyman's formulation in Curley v. United
States, 160 F. 2d 229, 232-233 (D.C. Cir.
1947):
"'"The true rule, therefore, is
that a trial judge, in passing
upon
a
motion
for
directed
verdict
of
acquittal,
must
determine
whether
upon
the
evidence, giving full play to the
right of the jury to determine
credibility, weigh the evidence,
and draw justifiable inferences
of fact, a reasonable mind might
fairly conclude guilt beyond a
reasonable doubt...."
1060600
20
"'This view is equally applicable to
a civil case to which the "clear and
convincing" standard applies....
"'....
"'Thus, in ruling on a motion for
summary judgment, the judge must view the
evidence presented through the prism of the
substantive evidentiary burden....
"'Our
holding
that
the
clear-and-convincing
standard
of
proof
should be taken into account in ruling on
summary judgment motions does not denigrate
the role of the jury. It by no means
authorizes
trial
on
affidavits.
Credibility
determinations,
the
weighing
of
the evidence, and the drawing of legitimate
inferences
from
the
facts
are
jury
functions, not those of a judge, whether he
is ruling on a motion for summary judgment
or for a directed verdict. The evidence of
the non-movant is to be believed, and all
justifiable inferences are to be drawn in
his favor. Adickes [v. S.H. Kress & Co.],
398 U.S. [144], at 158-159 [(1970)].
Neither do we suggest that the trial courts
should act other than with caution in
granting summary judgment or that the trial
court may not deny summary judgment in a
case where there is reason to believe that
the better course would be to proceed to a
full trial. Kennedy v. Silas Mason Co., 334
U.S. 249 (1948).
"'In
sum,
we
conclude
that
the
determination of whether a given factual
dispute requires submission to a jury must
be guided by the substantive evidentiary
standards that apply to the case ....
Consequently, where the New York Times [Co.
v. Sullivan, 376 U.S. 254 (1964),] "clear
1060600
21
and
convincing"
evidence
requirement
applies, the trial judge's summary judgment
inquiry as to whether a genuine issue
exists
will
be
whether
the
evidence
presented is such that a jury applying that
evidentiary standard could reasonably find
for either the plaintiff or the defendant.
Thus, where the factual dispute concerns
actual malice, clearly a material issue in
a New York Times case, the appropriate
summary judgment question will be whether
the evidence in the record could support a
reasonable jury finding either that the
plaintiff has shown actual malice by clear
and
convincing
evidence
or
that
the
plaintiff has not.'
"477 U.S. at 252-56, 106 S. Ct. 2505 (emphasis
added; footnote omitted)."
KGS Steel, __ So. 2d at __ (Murdock, J., concurring in the
result)(footnote
omitted;
some
emphasis
omitted;
some
emphasis
added).
Subsections (a) and (c) of § 12-21-12, Ala. Code 1975,
referred to above, were enacted by the legislature as part of
tort-reform legislation in 1987. Section 25-5-81(e), Ala.
Code 1975, was enacted by the legislature in 1992 as part of
the amendments to the Workers' Compensation Act. Subsections
12-21-12(a) and (c) address the amount of proof necessary for
the "establishment of jury issues in regard to tort claims
generally." Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So.
2d 90, 95 (Ala. 1989). On the other hand, the subsequently
1060600
22
enacted § 25-5-81(e) addresses specifically the standard of
review applicable to factual findings made by the trial court
in the less general and more specific area of workers'
compensation law. It was well within the purview of the
legislature,
in
enacting
§
25-5-81(e),
to
fashion
a
substantial-evidence
standard
of
reviewing
factual
findings
of
the trial court that is applicable to both the preponderance-
of-the-evidence
and
clear-and-convincing-evidence
standards
of
proof.
In sum, the statutorily prescribed substantial-evidence
standard of appellate review in workers' compensation cases
makes
no
distinction
between
the
preponderance-of-the-evidence
level of proof and the clear-and-convincing-evidence level of
proof and is applicable to findings of fact made pursuant to
each, albeit in necessarily different degrees because of the
heightened level of evidence necessary to satisfy the latter.
Put another way, the quantum of proof necessary to sustain on
appeal, as supported by substantial evidence in the record, a
finding of fact based on a clear-and-convincing-evidence
standard is greater than the quantum of proof necessary to
sustain on appeal, as supported by substantial evidence in the
1060600
23
record, a finding of fact based on the lesser standard of a
preponderance of the evidence.
Stated specifically in the context of a substantial-
evidence standard of review required in a proceeding like the
one
before
us,
a
cumulative-physical-stress/gradual-
deterioration worker's compensation case, the burden that an
employee must bear was accurately stated by then Judge Murdock
in his special concurrence:
"[T]he evidence necessary for appellate affirmance
of a judgment based on a factual finding in the
context of a case in which the ultimate standard for
a factual decision by the trial court is clear and
convincing evidence is evidence that a fact-finder
reasonably could find to clearly and convincingly
[as clear and convincing is defined by § 25-5-81(c)]
establish the fact sought to be proved."
KGS Steel, __ So. 2d at __.
To analogize the test set out above by Judge Prettyman
for trial courts ruling on motions for a summary judgment in
civil cases to which a clear-and-convincing-evidence standard
of proof applies, "the judge must view the evidence presented
through the prism of the substantive evidentiary burden";
thus, the appellate court must also look through a prism to
determine whether there was substantial evidence before the
trial court to support a factual finding, based upon the trial
1060600
24
court's weighing of the evidence, that would "produce in the
mind [of the trial court] a firm conviction as to each element
of the claim and a high probability as to the correctness of
the conclusion." § 25-5-81(c).
In reviewing a decision of the trial court, an appellate
court is not permitted to reweigh the evidence, because
weighing the evidence is solely a function of the trier of
fact. However, it is the function of the appellate court to
ascertain that the trial court's findings of fact are
supported by substantial evidence with due regard to, and
respect for, the appropriate level of evidentiary proof
required, which in this case is clear and convincing. Based on
the foregoing, we conclude that the Court of Civil Appeals
erred in applying a standard of review in this cumulative-
physical-stress case that permitted the reweighing on appeal
of the evidence presented to the trier of fact, i.e., the
trial court.
We next address the issue whether the Court of Civil
Appeals improperly considered only the testimony of the
medical experts in determining the issue of causation in
contravention to this Court's decision in Ex parte Price, 555
1060600
See International Paper Co. v. Melton, 866 So. 2d 1158
1
(Ala. Civ. App. 2003), for a thorough discussion by then Judge
Murdock of the nature of the evidence routinely found in cases
involving cumulative-physical-stress injuries.
25
So. 2d 1060, 1063 (Ala. 1989). The main opinion of the Court
of Civil Appeals states:
"As our recent opinion in Madix, Inc. v. Champion,
927 So. 2d 833 (Ala. Civ. App. 2005), holds, a
judgment awarding workers' compensation benefits
based upon a cumulative-stress disorder or a gradual
deterioration cannot properly be affirmed when the
testimony
of
the
pertinent
medical
experts
establishes 'no more than a "possibility" that [an
employee's]
employment
contributed
to
[the
employee's] injuries' so as to simply '"'guess' the
employer into liability."' 927 So. 2d at 838
(quoting Hammons v. Roses Stores, Inc., 547 So. 2d
883, 885 (Ala. Civ. App. 1989))."
KGS Steel, __So. 2d at __. Although we agree that the
evidence establishing causation must be such as not to "guess"
an employer into liability, to the extent that the main
opinion suggests that proof of causation is solely dependent
upon the presence of expert medical testimony, we reverse the
judgment of the Court of Civil Appeals.
1
This Court held in Ex parte Price that a trial court may
find medical causation without the benefit of testimony from
medical experts. Additionally, lay testimony may combine with
medical testimony to provide proof of causation because "[i]t
1060600
26
is in the overall substance and effect of the whole of the
evidence, when viewed in the full context of all the lay and
expert evidence, and not in the witness's use of any magical
words or phrases, that the test finds its application." Ex
parte Price, 555 So. 2d at 1063. This "totality-of-the-
evidence" standard is well established by caselaw and has
become a bedrock principle of law in the area of workers'
compensation law. This principle was reaffirmed in this
Court's decision in Ex parte Southern Energy Homes, supra.
Although Ex parte Southern Energy Homes, in which this Court
reversed a finding of compensability, involved a traumatic-
event injury, as opposed to a cumulative-physical-stress
injury, this Court nevertheless rejected a per se rule that
would require expert medical testimony to prove causation in
a workers' compensation case. 873 So. 2d at 1123-24.
Accordingly, we conclude that the Court of Civil Appeals
erred to the extent that its per curiam opinion suggests that
the presence or lack of expert medical testimony is solely
determinative of the issue of causation in a workers'
compensation case. We reverse the judgment of the Court of
Civil Appeals and remand the case to that court for its
further consideration consistent with this opinion.
1060600
27
REVERSED AND REMANDED.
See, Woodall, Stuart, Smith, and Parker, JJ., concur.
Cobb, C.J., and Lyons, J., concur in part in the
rationale and dissent from the judgment.
Murdock, J., recuses himself.
1060600
28
LYONS, Justice (concurring in part in the rationale and
dissenting from the judgment).
I agree with the main opinion's discussion of the
standard of review and its embrace of then Judge Murdock's
persuasive analysis of that issue in his opinion concurring in
the result. However, I differ as to the appropriate relief.
The main opinion, as I understand it, returns the case to
the Court of Civil Appeals for further consideration without
the availability of reliance upon Madix, Inc. v. Champion, 927
So.2d 833 (Ala. Civ. App. 2005), to the extent that the one-
judge opinion below correctly concluded that it stands for the
proposition
that
a
judgment
awarding
benefits
for
a
cumulative-stress disorder or a gradual deterioration cannot
properly be affirmed when the testimony of the pertinent
medical experts establishes no more than a possibility that
the employee's employment contributed to the employee's
injuries.
I would reverse the judgment of the Court of
Civil Appeals and remand the case with instructions to that
court to affirm the judgment of the trial court. I agree with
Judge Crawley's dissenting opinion:
"In this case, although Dr. Meyer, KGS's authorized
physician, determined that McInish's condition was
not related to his employment, Dr. Kelsey stated
that McInish's neck problems were 'consistent with'
1060600
29
the cumulative trauma described by McInish. In
addition, McInish's physique had drastically changed
from when he started working for KGS to the time of
trial, and testimony indicated that the onset of
McInish's symptoms of his condition occurred during
his employment with KGS, where he was subjected to
violent vibrations. The resolution of conflicting
evidence as to medical causation is the province of
the trial court, not the appellate courts, and based
on the totality of the evidence the trial court
could have reasonably found that McInish presented
clear and convincing evidence indicating that his
disability arose out of his employment."
I must therefore respectfully dissent from the judgment.
Cobb, C.J., concurs. | September 5, 2008 |
30a35ae4-a33c-47bf-bdb0-5e97f13d8f26 | Green v. Merrill | 308 So. 2d 702 | N/A | Alabama | Alabama Supreme Court | 308 So. 2d 702 (1975)
Larry W. GREEN
v.
Walter M. MERRILL and Southern Fire and Casualty Company.
SC 734.
Supreme Court of Alabama.
February 20, 1975.
*703 Dunn, Porterfield, McDowell, School & Clark and Thomas E. Baddley, Jr., Birmingham, for appellant.
London, Yancey, Clark & Allen, Birmingham, for appellee Southern Fire and Casualty Company.
HEFLIN, Chief Justice.
This is an appeal from a judgment rendered by the Circuit Court of Jefferson County in a garnishment proceeding.
Larry W. Green, appellant, was seriously injured in an accident on Lay Lake when he was struck in the water by a motor boat operated by defendant-appellee Walter M. Merrill.
Subsequently a suit was filed by Green to recover damages for injuries sustained in the accident. In May 1971 a judgment was entered in his favor for $37,500.
Ten thousand dollars of this judgment was collected, and the balance remained unsatisfied. Garnishment was issued by Green against the Southern Fire and Casualty Company, which insured the defendant Merrill under comprehensive liability coverage in a homeowner's policy of insurance. The Southern Fire and Casualty Company answered the garnishment "not indebted."
Green filed an affidavit contesting the insurer's answer. After a hearing before the trial court on the contest of the insurer's answer, a judgment was entered in favor of the insurance company. The trial court found that the insurance company was not indebted to Larry Green on the basis of the following exclusion contained in the subject policy:
"Section II of this Policy does not apply:
The judgment of the trial court is affirmed.
The boat that ran over Green was an eighteen-foot Mercury Cruiser powered by a one hundred-fifty (150) horsepower engine. Green's expert witness, Robert Morris, described this boat as an "inboard-outdrive" boat. Mr. Morris also testified that there are basically three types of motor boats: (1) an outboard boat; (2) an inboard boat; and (3) an inboard-outdrive boat. According to this expert's testimony, the engine in an outboard boat is mounted completely outside the hull of the boat. In both the inboard and inboard-outdrive boats, however, the engine is located completely within the hull of the boat.
Green's expert further testified that the inboard-outdrive boat differs from the straight inboard boat in that the engine is mounted to the transom at the very back of the boat, whereas, in the straight inboard boat the engine is located in the midship of the boat. Another difference is that in the inboard-outdrive boat the drive shaft is located outside the hull.
The trial court's finding that the boat in question was within the exclusions of the policy was based on the interpretation of the following phrase: "* * * if with inboard motor power exceeding fifty horsepower * * *." It was concluded by the trial court that this phrase referred to any type of watercraft where the power head or power source is located inside the craft.
The crucial issue presented to this court on appeal is whether or not Merrill's boat *704 comes within the above-mentioned exclusion.
Green argues that when the language of an insurance policy is vague, uncertain, and subject to two different interpretations, the court should adopt the interpretation most favorable to the insured. While this is a correct statement of the law, it is not here applicable, because this court is not of the opinion that the language employed in the subject policy was uncertain, vague, or ambiguous. Where there is no ambiguity this court will not indulge in constructions favorable to the insured. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Goodman, 279 Ala. 538, 188 So. 2d 268 (1966); The Praetorians v. Hicks, 234 Ala. 451, 175 So. 258 (1937); Empire Life Insurance Co. v. Gee, 178 Ala. 492, 60 So. 90 (1912).
In construing the provisions of an insurance policy, the language contained therein must be given its common interpretation. As was stated by this court in Alabama Farm Bureau Mutual Casualty Insurance Co. v. Goodman, supra:
The essential words in the subject policy are "watercraft * * * if with inboard motor power exceeding fifty horsepower * * *." There is no doubt that the watercraft in question was a boat with motor power exceeding fifty horsepower. The expert testified that the motor in an inboard-outdrive boat is located within the hull of the boat and that no part of the power unit is outside the hull of the boat.
It is well settled that the terms of an insurance policy are to be given a rational and practical construction. Alabama Farm Bureau Mutual Casualty Insurance Co. v. Preston, 287 Ala. 493, 253 So. 2d 4 (1971); Globe Life Insurance Co. of Alabama v. Howard, 41 Ala.App. 621, 147 So. 2d 853 (1962). Also, provisions of a policy which clearly indicate the parties' real intent are not to be given a strained construction to raise doubts where none exist. Chemstrand Corp. v. Maryland Casualty Co., 266 Ala. 626, 98 So. 2d 1 (1957).
In light of these rules, it appears that the only reasonable construction of this exclusion is that a boat with all of the motor power located within the hull and with a motor exceeding fifty horsepower is not covered under the policy. It must be remembered that the rule concerning ambiguities in insurance policies does not authorize this court to refine away the terms of the contract that are expressed with sufficient clarity to convey the intent and meaning of the parties. Northam v. Metropolitan Life Insurance Co., 231 Ala. 105, 163 So. 635 (1935); Protective Life Insurance Co. v. Hale, 230 Ala. 323, 161 So. 248 (1935).
The words used in the subject policy clearly reflect what was intended to be excluded. In Webster's Third New International Dictionary the word "inboard" when used as an adverb is defined as "inside the line of a ship's bulwarks or hull." When used as an adjective "inboard" is defined as "located, moving, or being inboard." An example given with this last definition is that of an "engine" being inboard.
Green, however, argues that the words "inboard motor power" are not commonly used in the boat trade to refer to a type of watercraft. It is contended by Green that to exclude his boat, the exclusion should have referred to an "inboard-outboard" boat. This court, however, is not of the opinion that failure to use a name commonly referred to in the trade makes the terms of the exclusion ambiguous. The terminology used by the insurer sufficiently described what type of boat *705 was excluded from coverage. The insurer was not trying to exclude only one particular type of inboard boat, but any type of boat with the power source inboard. For the foregoing reasons this court finds no ambiguity in the words employed by the insurer in the subject policy.
The only other issue before this court is whether a subsequent policy of insurance should have been admitted into evidence. Green sought to introduce the subsequent policy to show that the insurer had changed the special exclusions so as to add an exclusion of "inboard-outboard" watercraft. This terminology, however, was not contained in the subject policy at the time of the accident.
Green's contention that the later policy should have been admitted is without merit. Since the trial court found that the terms of the exclusion were not ambiguous, subsequent acts and declarations of the parties are immaterial on the question of the construction of the policy. Hubert v. Sistrunk, 53 So. 819 (Ala.1910). Where there is no ambiguity in a contract, the determination of its meaning is a question of law and should be decided without resort to extrinsic evidence. Foster & Creighton Co. v. Box, 259 Ala. 474, 66 So. 2d 746 (1953).
Affirmed.
MERRILL, MADDOX, FAULKNER and SHORES, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result).
I concur in the result. I am not altogether certain that this case turns purely on a question of law. In my opinion, the words of exclusion used in the policy"inboard motor power"and the words used to describe this water craft"inboard-outdrive" are specialized trade terms and are not common to everyday language; therefore, a question of fact is presented for the trial Court's determination. The trial Judge's findings of fact and conclusions are amply supported by the evidence. | February 20, 1975 |
7985ee19-fbd5-4f4b-b5f8-8cf40b8bef91 | Randal L. Harris v. Health Care Authority of the City of Huntsville d/b/a Huntsville Hospital, and Norman Solliday, M.D. | N/A | 1070271 | 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
_________________________
1070271
_________________________
Randal L. Harris
v.
Health Care Authority of the City of Huntsville d/b/a
Huntsville Hospital, and Norman Solliday, M.D.
Appeal from Madison Circuit Court
(CV-06-346)
SEE, Justice
Randal L. Harris appeals from summary judgments entered
by the Madison Circuit Court in favor of the Health Care
Authority of the City of Huntsville d/b/a Huntsville Hospital
("Huntsville Hospital") and Dr. Norman Solliday. We affirm.
1070271
Delirium tremens is a severe form of alcohol withdrawal
1
that can cause acute physiological and
psychological
reactions. See Dorland's Illustrated Medical Dictionary 469
(29th ed. 2000).
2
Facts and Procedural History
On February 10, 2005, Harris was admitted to Huntsville
Hospital after he lost consciousness at his home. Dr.
Solliday diagnosed Harris with possible delirium tremens and
1
prescribed and administered Ativan, a mild tranquilizer and
antianxiety medicine, as treatment for Harris's medical
condition. Harris became increasingly agitated and restless
under the administration of Ativan. Dr. Solliday increased
the dosage of Ativan in order to sedate Harris and transferred
him to the intensive care unit, where he was intubated for
airway protection. Harris was subsequently placed in soft
restraints to prevent him from interfering with his treatment
or from removing his breathing tube.
Three days after Harris was admitted to Huntsville
Hospital, Harris's medication was changed from Ativan to
Diprivan. Harris responded positively to the Diprivan.
Several days after Harris's medical condition had improved, he
was extubated and the soft restraints were removed. Harris
was discharged nine days after he was first admitted to
1070271
3
Huntsville Hospital. After his discharge, Harris complained
of residual numbness in his right hand. Harris was
subsequently examined by Dr. Lynn Boyer, who diagnosed Harris
as suffering from a severe nerve injury to the forearm and
biceps of his right arm.
On February 22, 2006, Harris sued Huntsville Hospital and
various fictitiously named defendants pursuant to the Alabama
Medical Liability Act, § 6-5-480 et seq., Ala. Code 1975, and
the Medical Liability Act of 1987, § 6-5-540 et seq., Ala.
Code 1975, alleging that he had sustained severe nerve injury
to his right arm because Huntsville Hospital had breached the
applicable medical standard of care by failing to monitor
Harris's condition while he was restrained.
Huntsville Hospital answered the complaint, and the trial
court set the case for a scheduling conference. At Harris's
request, the scheduling conference was continued until
November 20, 2006. At the scheduling conference, the trial
court set the case for trial on December 20, 2007, and issued
an order specifying certain dates for the completion of
discovery and for the disclosure of expert witnesses. That
order required Harris to disclose any expert witnesses by
1070271
4
April 16, 2007, and Huntsville Hospital was required to
disclose its expert witnesses by July 31, 2007. The trial
court's order also instructed the parties to submit their
witness and exhibit lists 30 days before trial.
On February 12, 2007, Harris amended his complaint to add
Dr. Solliday as a defendant. One month later Dr. Solliday
answered Harris's amended complaint and served Harris with
interrogatories and requests for production. Specifically,
Dr. Solliday requested that Harris identify all expert
witnesses Harris intended to call at trail. Harris did not
respond to Dr. Solliday's discovery requests and, on June 6,
Dr. Solliday moved the trial court to compel Harris to
respond. Two days later, the trial court granted Dr.
Solliday's motion to compel and ordered Harris to respond to
Dr. Solliday's discovery requests within 20 days. Harris
failed to respond within 20 days and failed to comply with the
trial court's scheduling order to disclose by April 16, 2007,
the identity of the expert witnesses he intended to call at
trial.
On July 31, Huntsville Hospital moved for a summary
judgment. In support of its motion for a summary judgment,
1070271
Rule 56(f), Ala. R. Civ. P., provides:
2
"Should it appear from the affidavits of a party
opposing the motion that the party cannot, for
reasons stated, present by affidavit facts essential
to justify the party's opposition, the court may
deny the motion for summary judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or
may make such other order as is just."
5
Huntsville Hospital attached the affidavit of Chasity Killen,
a nurse who had administered medical care to Harris while he
was being treated at Huntsville Hospital. Nurse Killen
testified that the nursing staff at Huntsville Hospital had,
at all times, met the applicable standard of care in treating
Harris. Over two weeks later, Dr. Solliday moved for a
summary judgment and supported that motion with his own
affidavit, in which he testified that he too had, at all
times, met the applicable standard of care in rendering
medical treatment to Harris. The trial court scheduled both
summary-judgment motions for a hearing on September 19.
On September 18, Harris moved the trial court pursuant to
Rule 56(f), Ala. R. Civ. P., to deny both summary-judgment
2
motions or, in the alternative, to continue the hearing on the
motions. Harris argued in his motion that the testimony of
Dr. Richard Berryman was essential to his opposition of the
1070271
The parties do not state and the record does not indicate
3
whether Nurse Seales was employed by Huntsville Hospital.
Harris apparently presented Nurse Seales's affidavit in order
to controvert the affidavit testimony of Nurse Killen.
6
summary-judgment motions. Harris included in his motion the
affidavit of his attorney, in which the attorney stated that
Harris was unable to obtain Dr. Berryman's testimony because
Dr. Berryman was then undergoing chemotherapy treatment.
Harris did not, however, move the trial court to amend its
scheduling order. The following day Huntsville Hospital and
Dr. Solliday responded to Harris's motion, and the trial court
conducted the scheduled hearing on the summary-judgment
motions.
The day after the hearing, Harris filed a brief
responding to Huntsville Hospital's and Dr. Solliday's motions
for summary judgments and in opposition to Harris's request
for a continuance. In support of his brief, Harris attached
the affidavits of Mary Seales, R.N., and Dr. Boyer.
3
Huntsville Hospital moved the trial court to strike both
affidavits, arguing that the affidavits were submitted after
the deadline established in the trial court's scheduling order
and after the trial court had already held a hearing on the
summary-judgment motions.
1070271
Rule 10(d),
Ala. R. App. P., provides,
in
pertinent part:
4
"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."
7
The trial court granted Huntsville Hospital's motion to
strike the affidavits of Nurse Seales and Dr. Boyer and
entered a summary judgment in favor of Huntsville Hospital.
The trial court also entered a summary judgment in favor of
Dr. Solliday, finding that Harris had not produced substantial
evidence to rebut Dr. Solliday's showing that he had met the
applicable standard of care in treating Harris. In this same
order, the trial court denied Harris's motion to deny or to
continue the hearing on the summary-judgment motions of
Huntsville Hospital and Dr. Solliday.
Harris appealed and filed a statement of proceedings
pursuant to Rule 10(d), Ala. R. App. P. Harris attached to
4
his statement of proceedings an affidavit executed by Dr.
Berryman. Dr. Solliday moved the trial court to strike
Harris's statement of proceedings on the ground that the trial
court did not hear ore tenus evidence at the hearing on the
summary-judgment motions. The trial court granted Dr.
1070271
8
Solliday's
motion,
finding that Harris's statement
of
proceedings, including Dr. Berryman's affidavit, was not
properly before the court. Harris now appeals.
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
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., [Ms. 1060211, January 25,
2008] ___ So. 2d ___, ___ (Ala. 2008). This Court will not
1070271
9
reverse a trial court's decision to grant or to deny a motion
for a continuance unless the party challenging the trial
court's ruling demonstrates that the trial court exceeded its
discretion. See Ex parte H.P.W., 628 So. 2d 514, 517 (Ala.
1993) ("It is well settled that the disposition of a motion
for a continuance is vested in the sound discretion of the
trial court and that its ruling will not be disturbed on
appeal, except upon a clear showing of abuse of discretion.").
This Court reviews a trial court's decision to amend or not to
amend a pretrial order to determine whether the trial court
exceeded its discretion. Hughes v. Arlando's Style Shop, 399
So. 2d 830, 831 (Ala. 1981).
Analysis
Harris
argues
that
the
trial
court
exceeded
its
discretion by failing to amend its scheduling order and by
denying his Rule 56(f), Ala. Civ. P., motion asking the trial
court to deny the summary-judgment motions or, in the
alternative, to continue the hearing on the motions. He
further argues that the trial court erred when it "sanctioned"
him by excluding the affidavits of Nurse Seales, Dr. Boyer,
and Dr. Berryman and entering summary judgments in favor of
1070271
10
Huntsville Hospital and Dr. Solliday.
A. The trial court's scheduling order
Harris first argues that the trial court exceeded its
discretion by not amending its scheduling order to change the
date for the disclosure of expert witnesses. Harris argues
that the "exclusion of witnesses pursuant to a scheduling
order is to prevent a party from being 'ambushed' at trial."
Harris's brief at 1. Harris further contends that strict
compliance with a trial court's scheduling order is not
required when the opposing party knows that the noncompliant
party intends to call expert witnesses to testify at trial.
Huntsville Hospital and Dr. Solliday, however, argue that
Harris cannot demonstrate that the trial court exceeded its
discretion by not amending its scheduling order because Harris
never moved the trial court to do so.
Rule 16(b), Ala. R. Civ. P., provides: "The court may
enter a scheduling order that limits the time ... to complete
discovery. ... Once a scheduling order is issued, the schedule
set thereby shall not be modified except by leave of court
upon a showing of good cause." (Emphasis added.) Harris is
unable to demonstrate that the trial court exceeded its
1070271
11
discretion in not amending its scheduling order. In response
to the summary-judgment motions, Harris admitted that he "did
not file a motion to amend the scheduling order, assuming that
it would automatically be amended with the addition of a party
...." Harris did not seek or obtain, by motion or otherwise,
modification of the scheduling order, and he never showed that
he had good cause for modification of the order. Harris did
not ask the trial court to modify the scheduling order, and
this Court will not reverse an order for a trial court's
failing to do what it was not asked to do. See Barnett v.
Estate of Anderson, 966 So. 2d 915, 920 (Ala. 2007) ("We
decline to review an issue ... that was not considered by the
trial court.").
Moreover, none of the caselaw cited by Harris supports
his argument that the amendment of a complaint to add a new
defendant requires the trial court sua sponte to modify its
scheduling order to extend the time for the disclosure of
expert witnesses. Harris cites Mitchell v. Moore, 406 So. 2d
347 (Ala. 1981), and Erwin v. Sanders, 294 Ala. 649, 320 So.
2d 662 (1975), in support of that argument. In Mitchell, this
Court held that the trial court did not exceed its discretion
1070271
12
in allowing the plaintiff to call a witness to testify at
trial after the plaintiff had not amended her answers to the
defendants' interrogatories to reflect her intention to call
the witness. 406 So. 2d at 350. This Court stated that the
trial court had not exceeded its discretion in concluding
that, "under the circumstances, plaintiff had not knowingly
concealed the identity of [the witness] in violation of Rule
26(e)[, Ala. R. Civ. P.]," because the plaintiff "originally
learned of [the witness's] identity through answers to
interrogatories propounded to defendants." Mitchell, 406 So.
2d at 350.
In Erwin, plaintiff's counsel had indicated that he was
considering
obtaining
an
expert witness. Defense counsel
then
obtained an additional expert witness the weekend before the
start of the trial on Monday. He notified the plaintiff's
attorney of the newly retained expert witness at the docket
call on the morning of the trial. Two and one-half days after
the trial began, the plaintiff's attorney objected to the
testimony of the recently acquired expert witness, arguing
that the plaintiff was prejudiced because defense counsel had
failed to
supplement
the answer to an interrogatory requesting
1070271
Rule 26(e)(1), Ala. R. Civ. P., provides, in pertinent
5
part:
"A party is under a duty seasonably to supplement
the response with respect to any question directly
addressed to ... the identity of each person
expected to be called as an expert witness at trial,
the subject matter on which the expert witness is
expected to testify, and the substance of the
witness's testimony."
13
the identity of each person expected to testify as an expert
witness, in accordance with Rule 26(e)(1), Ala. R. Civ. P.5
Erwin, 294 Ala. at 652, 320 So. 2d at 663. The trial court
overruled the plaintiff's objection, and this Court held that
the trial court did not exceed its discretion in doing so.
Mitchell and Erwin are inapposite here. Neither case
addresses whether a trial court should automatically amend a
scheduling order to change the date for the disclosure of
expert witnesses when the plaintiff amends a complaint to add
a new party as a defendant. Instead, those cases address
whether the trial court exceeded its discretion by allowing
certain witnesses to testify even though the party calling
them had not complied with Rule 26(e)(1), Ala. R. Civ. P., by
supplementing
their
answers
to
interrogatories
to
disclose
the
identities of the witnesses. Mitchell, 406 So. 2d at 350
1070271
The remaining cases cited by Harris are likewise
6
inapposite. See Edwards v. Valentine, 926 So. 2d 315, 330
(Ala. 2005) (holding that the trial court did not exceed its
discretion in allowing the plaintiff's expert witness to
testify about Valentine's loss of earning capacity when that
portion of the testimony did not differ from the conclusions
in the expert witness's report that had been disclosed to the
defendants months before trial); Coastal Lumber Co. v.
Johnson, 669 So. 2d 803, 811 (Ala. 1995) ("[T]he admission of
testimony from witnesses whose identity may not have been
disclosed in accordance with properly conducted pretrial
discovery procedure is within the trial court's sound
discretion."); Cone Builders, Inc. v. Kulesus, 585 So. 2d 1284
(Ala. 1991) (holding that the trial judge did not exceed his
discretion in admitting the testimony of the plaintiff's
expert witness when Cone Builders failed to adequately use the
discovery process to discover the nature of the expert's
testimony).
14
("[U]nder the circumstances, plaintiff had not knowingly
concealed the identity of [the witness] in violation of Rule
26(e)[, Ala. R. Civ. P.]", because the plaintiff "originally
learned of [the witness's] identity through answers to
interrogatories propounded to defendants."); Erwin, 294 Ala.
at 652, 320 So. 2d at 664 (holding that the trial court did
not exceed its discretion in allowing the expert witness to
testify, because there was "ample evidence to show that the
defendants, faced with the possibility that the plaintiff
would have a 'live' expert at trial, would also seek, as a
matter of trial strategy, to obtain expert testimony").6
1070271
15
Because the authority Harris relies on is inapposite, we
conclude that Harris has not demonstrated that he was entitled
to have the trial court, sua sponte, amend its scheduling
order to alter the date for the disclosure of expert witnesses
after Harris amended his complaint to add Dr. Solliday as a
defendant.
Moreover, Erwin lends support to our holding today. In
Erwin, this Court concluded that plaintiff's counsel could
have pursued several ameliorative alternatives to counter the
defense expert's testimony; those alternatives included
announcing the plaintiff's readiness to proceed to trial
subject to the plaintiff's deposing the defense's expert,
requesting
a
continuance,
taking
the
expert's
deposition
while
the trial was in recess, or requesting that the trial court
adjourn for a sufficient time to allow the plaintiff to take
the deposition. Erwin, 294 Ala. at 652, 320 So. 2d at 664.
Harris
never
availed
himself
of
such
ameliorative
alternatives
in the trial court. In particular, Harris never asked the
trial court to amend its scheduling order to extend the
deadline for disclosing the identity of expert witnesses.
Because Harris failed to pursue other alternatives, he has not
1070271
16
demonstrated
that
the trial court exceeded its discretion when
it did not amend its scheduling order.
B. Harris's motion for a continuance
Harris argues that the trial court exceeded its
discretion in denying Harris's Rule 56(f), Ala. R. Civ. P.,
motion to deny the summary-judgment motions or to continue the
hearing on those motions. Rule 56(f), Ala. R. Civ. P.,
provides:
"Should it appear from the affidavits of a party
opposing the motion that the party cannot, for
reasons stated, present by affidavit facts essential
to justify the party's opposition, the court may
deny the motion for summary judgment or may order a
continuance to permit affidavits to be obtained or
depositions to be taken or discovery to be had or
may make such other order as is just."
This Court has stated that "[t]he burden is on the nonmoving
party to comply with Rule 56(f)[, Ala. R. Civ. P.], or to
otherwise prove that the matter sought by discovery is or may
be crucial to the nonmoving party's case." McCullar v.
Universal Underwriters Life Ins. Co., 687 So. 2d 156, 162. In
McCullar, this Court also noted that "a trial judge has broad
discretion to grant or to deny a motion for a continuance."
687 So. 2d at 161 (citing Wood v. Benedictine Soc'y of
1070271
17
Alabama, Inc., 530 So. 2d 801, 805 (Ala. 1988)).
Harris cites McGhee v. Martin, 892 So. 2d 398, 401 (Ala.
Civ. App. 2004), for the proposition that a trial court should
grant a Rule 56(f) motion "'if the nonmoving party can
demonstrate that the outstanding discovery is crucial to his
case.'" (quoting Wright v. State, 757 So. 2d 457, 459 (Ala.
Civ. App. 2000)). Harris contends that the trial court
exceeded its discretion in denying his Rule 56(f) motion
because, Harris says, his motion was accompanied by the
supporting affidavit of his attorney indicating that Dr.
Berryman's testimony was necessary to oppose the summary-
judgment motions. Harris also alleges that the supporting
affidavit stated that Harris needed additional time to obtain
Dr. Berryman's testimony because Dr. Berryman had been out of
town and was unable to complete his testimony by affidavit.
Although the affidavit of Harris's counsel did state why
Dr. Berryman's testimony was necessary to oppose the summary-
judgment motions, Harris has not demonstrated that the trial
court exceeded its discretion in denying his Rule 56(f)
motion. In Griffin v. American Bank, 628 So. 2d 540 (Ala.
1993), this Court addressed a similar situation. In that
1070271
18
case, Griffin's counsel moved the trial court for a Rule 56(f)
continuance on the morning of the scheduled hearing on the
bank's summary-judgment motion. The Rule 56(f) motion
specifically alleged that counsel had been unable to contact
Griffin and that obtaining his evidence and affidavit was
necessary "to defend his cause." Griffin, 628 So. 2d at 542.
This Court held that the trial court did not exceed its
discretion in denying the last-minute Rule 56(f) motion
because Griffin's attorney had "received a copy of the motion
for summary judgment" nearly two weeks before the scheduled
hearing and "the attorney had adequate notification of the
hearing." Griffin, 628 So. 2d at 543. This Court further
stated that "[a] typical situation for the application of Rule
56(f) is where the opposing party cannot present by affidavits
facts
essential to justify
his
opposition
because knowledge
of
those facts is exclusively with, or largely under the control
of, the moving party." Griffin, 628 So. 2d at 542.
Harris's case is analogous to Griffin in several
important respects. First, Griffin's counsel moved the trial
court for a continuance the morning of the hearing on the
summary-judgment motion, contending that more time was
1070271
19
required
to
obtain Griffin's affidavit, which counsel
said was
essential to Griffin's defense. Similarly, in this case,
Harris moved the trial court for a Rule 56(f) continuance the
day before the scheduled hearing on the summary-judgment
motions and included an affidavit stating that Harris had been
unable to procure the affidavit of a witness whose testimony
was essential to his defense of the summary-judgment motions.
Second, just as Griffin's counsel had received copies of the
summary-judgment motion and had received adequate notice of
the hearing, Harris's
attorney
received
copies of the summary-
judgment motions and had over four weeks' notice of the
scheduled hearing. Finally, as was the case in Griffin,
Harris's inability to obtain the affidavit testimony of Dr.
Berryman is not a "typical situation" calling for the
application of Rule 56(f). This is not a situation where
Harris "cannot present by affidavits facts essential to
justify his opposition because knowledge of those facts is
exclusively with, or largely under the control of, the moving
party." Griffin, 628 So. 2d at 542. Harris has not
demonstrated that the trial court exceeded its discretion in
not granting a continuance or denying the summary-judgment
1070271
Rule 37(b)(2), Ala. R. Civ. P., provides, in pertinent
7
part:
"If a party ... fails to obey an order to provide or
permit discovery, ... the court in which the action
is pending may make such orders in regard to the
failure as are just ...."
20
motions based on Harris's Rule 56(f) motion.
C. The summary judgments
Harris argues that the trial court erred in entering
summary judgments
because,
he
says,
the summary
judgments were
improper "sanctions" under Rule 37(b), Ala. R. Civ. P., for
7
his failure to disclose his experts in accordance with the
trial court's scheduling order. Harris contends that the
trial court could not sanction him because neither Huntsville
Hospital nor Dr. Solliday moved the trial court to compel
Harris to disclose the identity of any expert witnesses.
Huntsville Hospital and Dr. Solliday argue that the trial
court did not sanction Harris for failing to disclose the
identity of any expert witnesses. Instead, Huntsville
Hospital and Dr. Solliday argue that the trial court entered
the summary judgments in their favor because Harris failed to
produce substantial evidence to demonstrate that a genuine
1070271
21
issue of material fact exists. We agree.
Addressing first Harris's argument that the summary
judgments entered by the trial court were improperly imposed
sanctions under Rule 37(b), Ala. R. Civ. P., we conclude from
reviewing the trial court's summary-judgment order that the
trial court did not enter the summary judgments as a sanction.
Rather, the trial court found that Harris had failed to
present evidence demonstrating the existence of a genuine
issue of material fact. The trial court did not consider the
affidavits of Nurse Seales and Dr. Boyer because they were
disclosed after the scheduling-order deadline for the
disclosure of expert witnesses had passed and a day after the
trial court had held a hearing on the summary-judgment
motions. Specifically, in entering a summary judgment in
favor of Dr. Solliday, the trial court found that there was no
genuine issue of material fact because Harris "has presented
no qualified expert testimony to support his claims that Dr.
Solliday
breached
the applicable
standard
of
care." Likewise,
the trial court found that a summary judgment in favor of
Huntsville Hospital was appropriate because Harris "did not
file any evidence in opposition to the motion until September
1070271
22
20, 2007, the day after the Court heard the motion and took it
under submission."
"In a medical-malpractice action, the plaintiff must
present
expert
testimony
establishing
the
appropriate
standard
of care, the doctor's deviation from that standard, and 'a
proximate causal connection between the doctor's act or
omission constituting the breach and the injury sustained by
the
plaintiff.'"
Rivard
v.
University
of
Alabama
Health
Servs.
Found., P.C., 835 So. 2d 987, 988 (Ala. 2002) (quoting
Bradford v. McGee, 534 So. 2d 1076, 1079 (Ala. 1988)). "If
the movant in a medical-malpractice case makes a prima facie
showing that there is a genuine issue of material fact, then,
as in other civil cases, the burden shifts to the nonmovant to
present substantial evidence creating such an issue." Cain v.
Howorth, 877 So. 2d 566, 575 (Ala. 2003) (citing Ex parte Elba
Gen. Hosp. & Nursing Home, Inc., 828 So. 2d 308, 311 (Ala.
2001)). To demonstrate that a genuine issue of material fact
exists in a medical-malpractice action, a nonmovant must
present "expert testimony in support of
[his]
claim." Swendsen
v. Gross, 530 So. 2d 764, 768 (Ala. 1988).
In this case, Dr. Solliday supported his summary-judgment
1070271
23
motion with his affidavit, in which he testified that he did
not breach the applicable standard of care in diagnosing and
treating
Harris.
Huntsville Hospital
supported
its motion for
a summary judgment with the affidavit of Nurse Killen, in
which she stated that Huntsville Hospital had adhered to the
standard
of
care
in
administering medical treatment to Harris.
These two affidavits shifted the burden of proof to Harris,
requiring him to produce substantial evidence in the form of
expert testimony to support his claims that Huntsville
Hospital
and Dr.
Solliday
had breached the applicable standard
of care in rendering medical care. See Carraway v. Kurtts,
[Ms. 1060589, December 14, 2007] ___ So. 2d ___, ___ (Ala.
2007) (holding that Dr. Kurtts's affidavit denying "that he
breached the applicable standard of care" constituted
"sufficient evidence to shift the burden of proof to [the
plaintiff]"); S.A. v. Thomasville Hosp., 636 So. 2d 1, 2 (Ala.
1993) ("Dr. Prescott's affidavit was accompanied by hospital
records sufficient to shift the burden of proof to S.A. to
offer evidence creating a genuine issue of material fact and
indicating that the defendants were not entitled to a judgment
as a matter of law.").
1070271
24
The burden shifted to Harris to produce substantial
evidence indicating that Huntsville Hospital and Dr. Solliday
had breached the applicable standard of care in caring for
Harris. Harris failed to present any evidence, let alone
substantial evidence, indicating that Huntsville Hospital and
Dr. Solliday had breached the standard of care, because Harris
did not provide the affidavit testimony of Nurse Seales and
Dr. Boyer until the day after the trial court held the hearing
on the summary-judgment motions. Rule 56(c)(2), Ala. R. Civ.
P., provides that "any statement or affidavit in opposition
[to a motion for a summary judgment] shall be served at least
two (2) days prior to the hearing." Because Harris did not
provide his expert affidavit testimony at least two days
before the hearing, he did not carry his burden of providing
substantial
evidence
creating
a genuine
issue
of
material
fact
that Huntsville Hospital and Dr. Solliday had breached the
applicable standard of care. Therefore, the trial court
properly entered summary judgments in favor of Huntsville
Hospital and Dr. Solliday, and Harris's argument that the
trial court entered the summary judgments as a sanction under
Rule 37(b), Ala. R. Civ. P., is without merit.
1070271
25
Conclusion
We conclude that Harris has failed to demonstrate that
the trial court exceeded its discretion in not amending its
scheduling order and in denying Harris's Rule 56(f) motion.
We also conclude that Harris has not demonstrated that the
trial court erred in entering summary judgments in favor of
Huntsville Hospital and Dr. Solliday. We, therefore, affirm
the trial court's judgments.
AFFIRMED.
Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur.
Cobb, C.J., concurs in the result. | September 19, 2008 |
4b535420-6da2-4db0-9a18-28cc2bb5e8fd | Ex parte Michael Brown. PETITION FOR WRIT OF CERTIORARI TO THE Death COURT OF CRIMINAL APPEALS (In re: Michael Brown v. State of Penalty Alabama) | N/A | 1061663 | 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
_________________________
1061663
_________________________
Ex parte Michael Brown
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Michael Brown
v.
State of Alabama)
(Jefferson Circuit Court, Bessemer Division, CC-02-348;
Court of Criminal Appeals, CR-04-0293)
LYONS, Justice.
Michael Brown was convicted of two counts of capital
murder for the killing of Betty Kirkpatrick. The murder was
1061663
2
made capital because it was committed during the course of a
robbery and a burglary. The jury recommended by a vote of 11-
1 that Brown be sentenced to death, and the trial court
followed the jury's recommendation. Brown appealed. The
Court of Criminal Appeals unanimously affirmed Brown's
conviction and sentence. Brown v. State, [Ms. CR-04-0293,
June 29, 2007] ___ So. 2d ___ (Ala. Crim. App. 2007). Brown
petitioned this Court for certiorari review; we granted his
petition to review one issue: whether the Court of Criminal
Appeals
correctly
concluded
that
certain
out-of-court
statements were admissible under the doctrine of curative
admissibility. For the reasons discussed below, we need not
decide that issue to affirm the judgment of the Court of
Criminal Appeals.
I. Facts and Procedural History
The following facts are from the Court of Criminal
Appeals' opinion:
"The State's evidence tended to show the
following. On October 12, 2001, Ricky Kirkpatrick
and his wife discovered the body of his 65-year-old
mother, Betty Kirkpatrick, in her mobile home in
Hueytown. Her head was covered with a plastic bag
and her throat had been cut. A knife and a paper
towel were lying on her chest. Betty Kirkpatrick's
purse and her gold 1986 Ford Thunderbird automobile
1061663
3
were missing. The forensic pathologist testified
that
Betty
Kirkpatrick
died
of
'asphyxia
by
strangulation and smothering.' (R. 431.) She also
had bruises on her face and hands that, he said,
were caused by blunt-force trauma.
"Several witnesses
testified
that
they
saw
Brown
driving a gold Thunderbird around the time of the
murder. Alisha Spindlow testified that she saw
Brown driving a gold Thunderbird and that he told
her that he had killed Betty Kirkpatrick. Another
individual, Kevin Clayton, testified that he saw
Brown two days after the murder, that he was driving
a gold Thunderbird, and that he told him that he got
the car from a lady and the car would not be 'hot'
until the lady's body was discovered. Kelly Watkins
said that Brown was driving a gold Thunderbird
around the time of the murder and that he told her
that he had killed the lady who owned it. Watkins
said that Brown told her that he had tried to choke
the victim but she would not die so he cut her
throat with a knife he got from the kitchen of her
house.
"Forensic tests were also conducted on the
blood-stains found on the paper towel discovered on
Betty Kirkpatrick's chest. Carl Mauterer, a
forensic scientist with the Alabama Department of
Forensic Sciences, testified that one stain was
tested and found to be consistent with Brown's blood
-- Brown could not be excluded as the donor.
"Detective Charles Hagler also testified that
Brown told him that he went to Betty Kirkpatrick's
mobile home with three other individuals, Robert
Smith, Kevin Clayton (who testified at Brown's
trial), and Moses Smiley, to rob Betty Kirkpatrick
but that Robert Smith killed Kirkpatrick."
Brown, ___ So. 2d at ___.
II. Standard of Review
1061663
4
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)). However, because Brown was sentenced to death, the
Court of Criminal Appeals reviewed the proceedings for plain
error.
"Plain error is defined as error that has 'adversely
affected the substantial right of the appellant.'
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)."
Hall v. State, 820 So. 2d 113, 121-22 (Ala. Crim. App. 1999)
(additional citations omitted). See also Ex parte Walker, 972
So. 2d 737, 742-43 (Ala. 2007).
III. Analysis
In his petition for a writ of certiorari, Brown argues
that the admission of out-of-court statements at his trial
violated his right to cross-examination and that the
1061663
5
statements were not admissible under the doctrine of curative
admissibility. Brown states that the State's theory of the
case is that he acted alone in robbing and killing the victim,
while the defense theory is that, although Brown was present
at the scene, he did not kill Kirkpatrick. Instead, Brown
said, three people in addition to him were at the scene, and
one of them, Robert Smith, killed her. Brown states that the
defense theory of the case was supported by the State's
evidence in that his prints did not match any of the readable
prints from the victim's car; DNA from a cigarette found in
the car excluded both the victim and Brown; and, of two DNA
samples collected from the blood on a paper towel found at the
murder scene, one excluded Brown and the other included the
DNA of at least two individuals, although it did not exclude
Brown.
During the testimony of the lead investigative officer,
Detective Charles Hagler, the prosecutor, without objection
from Brown, elicited evidence that Smith had made out-of-court
statements
denying
his
involvement
in
the
crime
and
implicating Brown. Brown argues that, because he had had no
opportunity to cross-examine Smith, his constitutional right
1061663
6
to confront witnesses was violated. Brown relies upon
Crawford v. Washington, 541 U.S. 36, 59 (2004), which holds
that "[t]estimonial statements of witnesses absent from trial
have been admitted only where the declarant is unavailable,
and only where the defendant has had a prior opportunity to
cross-examine."
The Court of Criminal Appeals concluded that the content
of Smith's statements was admissible under the doctrine of
curative admissibility, reasoning that defense counsel's
cross-examination
of
Hagler
opened
the
door
for
the
prosecutor, on redirect, to elicit the content of Smith's out-
of-court statements implicating Brown in the murder. Brown
argues that Hagler's testimony regarding Smith's statements
violated Crawford, in which the United States Supreme Court
held that "[w]here testimonial statements are at issue, the
only
indicium
of
reliability
sufficient
to
satisfy
constitutional demands is the one the Constitution actually
prescribes: confrontation." 541 U.S. at 68-69. Therefore,
Brown argues, the Court of Criminal Appeals erred in admitting
Smith's
statements
under
the
doctrine
of
curative
admissibility.
1061663
7
Brown states that in response to the prosecutor's
questions Hagler testified that Smith adamantly stated that he
was not involved in Kirkpatrick's murder, gave him names of
people he was with on the night she was murdered, and
specifically implicated Brown in the murder. The admission of
these statements, Brown insists, violated his right to cross-
examine Smith because, he says, Smith's statements were
clearly testimonial, the State failed to establish that Smith
was an unavailable witness, and the defense had had no prior
opportunity to cross-examine Smith. The Court of Criminal
Appeals concluded:
"Here, the defense counsel implied on cross-
examination that Det. Hagler acted irresponsibly in
not investigating Robert Smith. To rebut the
matters that were presented on cross-examination the
State had a right to question Det. Hagler so that
Det. Hagler could explain his actions during the
course of the investigation. Under the caselaw
cited above, we hold that there was no error, much
less plain error."
Brown, ___ So. 2d at ___. Brown argues that the above holding
by the Court of Criminal Appeals conflicts with Alabama cases
establishing that the doctrine of curative admissibility is
applicable only where the opposing party has introduced
illegal or otherwise inadmissible evidence. See, e.g., Ex
1061663
8
parte D.L.H., 806 So. 2d 1190, 1193 (Ala. 2001); and Varner v.
State, 497 So. 2d 1135, 1138 (Ala. Crim. App. 1986).
In this case, Brown says, the subject of Hagler's
investigation was never a forbidden area of inquiry for either
party, being the primary topic of his testimony during the
State's direct examination; therefore, Brown says, it was not
necessary for defense counsel to "open the door" on cross-
examination in order for the investigation to be an
appropriate subject on redirect. Brown alleges that defense
counsel's questioning of Hagler was a direct response to the
State's
examination
and thus was classic impeachment.
Specifically, Brown says he never elicited testimony from
Hagler as to what Smith told him during questioning and thus
never opened the door to such testimony on redirect by the
prosecutor. Brown argues that it would have been proper for
the State to elicit testimony from Hagler that he had
investigated and questioned Smith and later determined that he
was not a suspect without introducing Smith's statements
implicating Brown in the offense, but that the State was not
entitled to rebut defense counsel's effort to impugn the
sufficiency of Hagler's investigation by introducing the
1061663
9
statements of other suspects. According to Brown, the
statements at issue in this case, like those in Crawford,
directly undermined the defense theory and thus were severely
prejudicial to Brown. Given that Brown's defense centered
around the possibility that Smith was the party responsible
for the murder, Brown maintains that Hagler's testimony as to
what Smith said allowed the State to argue in its closing that
Brown was solely responsible for Kirkpatrick's death and that
there was no evidence to support the defense theory that Smith
was involved in the murder.
The Court of Criminal Appeals stated in its opinion that
the record shows that during direct examination Hagler
testified that Brown told him that he and three other
individuals were involved in the robbery but that Smith had
committed the murder. He did not mention any statements that
Smith had made to police or even mention that Smith had been
questioned by police. During cross-examination, the Court of
Criminal Appeals said, defense counsel elicited testimony that
Smith had been questioned by police; that his statement had
been audiotaped; that Smith had been read his Miranda rights
and had signed a waiver-of-rights form; that Hagler had not
1061663
10
submitted Smith's fingerprints for comparison with the
fingerprints discovered in the victim's car and that when
Hagler obtained a warrant for a sample of Brown's blood, he
stated in his affidavit supporting the warrant that Brown had
stated that he and three others had entered the victim's
residence to rob her; that one of the other suspects had
choked the victim and cut her throat; and that they then had
taken her purse, jewelry, and car. On redirect, the
prosecutor asked Hagler whether Smith said anything to him
about being involved in the victim's death, and Hagler
answered:
"'He was adamant that he was not involved. He gave
the names of people that he was with ... who
verified where he was during the night of the
evening in question. And he also said that Mr.
Brown had made statements about the murder.'"
Brown, ___ So. 2d at ___. The Court of Criminal Appeals then
went on to discuss the doctrine of curative admissibility.
Because Brown failed to object to the testimony he now
challenges, our review is limited to an examination for plain
error. See Rule 45A, Ala. R. App. P. Brown argues in his
initial brief to this Court that the Court of Criminal
Appeals' conclusion that the admission of testimonial out-of-
1061663
11
court statements was not error under the doctrine of curative
admissibility conflicts with established law. In its
responsive brief, the State argues that this Court need not
reach the merits of Brown's argument because, it argues, even
if the admission of Hagler's testimony regarding Smith's
statements was erroneous, any error was harmless and certainly
does not rise to the level of plain error.
"'To 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.'" Ex parte Bryant, 951 So. 2d 724,
727 (Ala. 2002) (quoting Hyde v. State, 778 So. 2d 199, 209
(Ala. Crim. App. 1998)). In United States v. Young, 470 U.S.
1, 15 (1985), the United States Supreme Court, construing the
federal plain-error rule, stated:
"The Rule authorizes the Courts of Appeals to
correct
only
'particularly
egregious
errors,'
United States v. Frady, 456 U.S. 152, 163 (1982),
those errors that 'seriously affect the fairness,
integrity
or
public
reputation
of
judicial
proceedings,' United States v. Atkinson, 297 U.S.
[157], at 160 [(1936)]. In other words, the plain-
error exception to the contemporaneous-objection
rule is to be 'used sparingly, solely in those
circumstances in which a miscarriage of justice
would otherwise result.' United States v. Frady,
456 U.S., at 163, n.14."
1061663
12
See also Ex parte Hodges, 856 So. 2d 936, 947-48 (Ala. 2003)
(recognizing that plain error exists only if failure to
recognize the error would "seriously affect the fairness or
integrity of the judicial proceedings," and that the
plain-error doctrine is to be "used sparingly, solely in those
circumstances in which a miscarriage of justice would
otherwise result" (internal quotation marks omitted)).
The State argues that in order to establish that the
admission of the testimony was plain error, Brown must show
that the admission of Hagler's testimony concerning Smith's
statements
was
"particularly
egregious"
and
"seriously
affect[ed] the fairness, integrity or public reputation of
[his trial]." In addition, Brown must establish that the
admission of this testimony "had an unfair prejudicial impact
on the jury's deliberation." Ex parte Price, 725 So. 2d 1063,
1072 (Ala. 1998). The State maintains that because it
presented overwhelming evidence proving that Brown murdered
Kirkpatrick, Brown cannot establish that the admission of
Hagler's testimony had any impact on the jury's deliberation.
Assuming, without deciding, that the testimony would have
been inadmissible on proper objection, the State's evidence
1061663
13
showed that Brown admitted to being in Kirkpatrick's mobile
home when the murder occurred and that he drove her car and
boasted to his friends how he had killed her. He told a
friend that when he was unable to choke the victim, he got a
knife from her kitchen and slit her throat but that there
would be no fingerprints on the knife because he had wrapped
the handle with a paper towel, which was discovered at the
murder scene. The Alabama Department of Forensic Sciences
determined that Brown was a possible donor of DNA recovered
from the paper towel. The State argues that even without
Hagler's testimony about Smith's statements, there is no
possibility that the jury would have believed that Smith, and
not Brown, was the actual killer. Because there was
sufficient evidence, apart from Hagler's testimony, to show
that Brown, not Smith, murdered the victim, the State argues
that any error in the admission of Hagler's testimony was
harmless beyond a reasonable doubt. See Ex parte T.D.T., 745
So. 2d 899, 906 (Ala. 1999) (the erroneous admission of an
out-of-court statement "was harmless error because, even
without it, the record contains overwhelming evidence of [the
defendant's] guilt").
1061663
14
Kevin Clayton, a friend of Brown's, testified as follows:
"Q. [By the prosecutor:] Did you have an opportunity
to discuss with Michael Brown where he got that gold
Thunderbird?
"A. Yes, sir.
"Q. What did he tell you about it?
"A. He had told me he had got it from a lady. At
first he told me it was his.
"Q. First he told you it was his Thunderbird; is
that right?
"....
"A. Yes, sir.
"Q. Did he later tell you something different?
"A. Yes, sir.
"Q. What did he tell you?
"A. He told me he had killed somebody for it.
"....
"Q. Did Michael Brown ever say anything to you about
how he killed the person?
"A. Yes, sir.
"Q. Tell us what he told you.
"A. He had cut her.
"Q. He had cut her. Okay. Did he ever go into any
more detail about that?
1061663
15
"A. All I remember him saying is that she screamed,
and he had cut her.
"Q. Okay . Now did he ever -- strike that. Did you
at first believe him when he told you that?
"A. No, sir.
"Q. Did he say anything to you to make you think
that he was serious?
"A. Yes, sir.
"Q. What did he say?
"A. On the boss.
"....
"Q. When we broke, you had said Michael said 'on the
boss.' Is that like an oath or like saying 'I
swear' or something like that?
"A. Yes, sir."
Kelly Watkins, who had once dated Brown, testified as
follows:
"Q. [By the prosecutor:] And when Michael pulled up
in this gold Thunderbird, did you ask him about
where he got the car or anything like that?
"....
"A. I never thought about it because he knew the
lady.
"Q. What did you think about the car?
"A. That she had let him borrow it.
1061663
16
"Q. Did you ever have a conversation with him where
something else was discussed?
"A. Yes, sir.
"Q. Okay. How did that first start, if you remember?
"A. Well, we was riding in a car, and a song came on
the radio.
"Q. When you say, 'We were in the car,' who was in
the car?
"A. Michael Brown, me, and Kevin [Clayton].
"....
"Q. Okay. Did he say anything about that song?
"A. He said that the song was referring to what he
had done to Betty, or Grandma, as I knew her.
"Q. What did you think when he told you that?
"A. I didn't think nothing, 'cause --
"Q. Did you believe it when he said it?
"A. No.
"Q. And so you, Michael Brown, and Kevin Clayton are
in the car. Where are y'all going?
"A. We was headed to my friend, Catherine's house.
"....
"Q. Was anything said when y'all pulled up there?
"A. Mike said that he had killed -- Mike said that
he had got him one and made a lick [killed someone].
1061663
17
"Q. Who did he say that to?
"A. He told that to Alisha [Spindlow] and Catherine.
"Q. Did y'all believe him at that time?
"A. No.
"....
"Q. Did you have -- during the course of that
weekend, did you have more conversations with
Michael about what happened?
"A. Yes, sir.
"Q. And did -- what was your purpose in --
"A. I was trying to catch him in a lie.
"Q. When you say, 'catch him in a lie,' what do you
mean by that?
"A. I thought he was lying about what he had done is
all. I was just asking him numerous questions.
"Q. Okay. What kind of questions were you asking
him?
"A. I asked him where the murder weapon was, and he
said he left it at the house. And I said, 'You were
not that stupid. You would have brought the murder
weapon with you.' And he said that he placed a
napkin around the handle so y'all couldn't get his
fingerprints.
"Q. And he said he left the napkin --
"A. He left the napkin at the crime scene, too.
"Q. Did he say anything specifically about how he
killed Ms. Kirkpatrick?
1061663
18
"A. He knocked on the door, and she was letting him
in. Whenever she turned around, he tried to choke
her, but she wouldn't die. So, he cut her throat.
"Q. Did he say where he got the knife?
"A. He got the knife in her kitchen."
After reviewing the evidence presented at trial, we
conclude that, even assuming that the challenged evidence was
inadmissible
on
proper
objection,
there
has
been
no
miscarriage of justice that would cause a loss of confidence
in the validity of judicial proceedings in this case. See Ex
parte Hodges and Young, supra. Therefore, under all the
circumstances, any error in the admission of Hagler's
testimony regarding Smith's statements would be harmless and
would not constitute plain error.
IV. Conclusion
We conclude that any error in the admission of Hagler's
testimony
concerning
Smith's
statements,
assuming
the
validity
of Brown's claim in that respect, could not rise to the level
of plain error; therefore, we affirm the judgment of the Court
of Criminal Appeals.
1061663
Although Justice Bolin did not sit for oral argument of
1
this case, he has viewed the video recording of that oral
argument.
19
AFFIRMED.
See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock,
1
JJ., concur.
Cobb, C.J., recuses herself. | October 3, 2008 |
8548c8ad-1848-4f07-8e9a-4a71bfd57812 | Ex parte Brett Yancey. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Paul Dodd and Cynthia Dodd, as parents and next friends of Charles Alexander Coker, a minor v. Matthew Messer and Brett Yancey) | N/A | 1070922 | 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
_________________________
1070922
_________________________
Ex parte Brett Yancey
PETITION FOR WRIT OF MANDAMUS
(In re: Paul Dodd and Cynthia Dodd, as parents and next
friends of Charles Alexander Coker, a minor
v.
Matthew Messer and Brett Yancey)
(Etowah Circuit Court, CV-05-1451)
BOLIN, Justice.
Brett Yancey, a football coach and teacher employed by
the Etowah County Board of Education ("the Board"), petitions
1070922
2
this Court for a writ of mandamus directing the Etowah Circuit
Court to enter a summary judgment in his favor on the basis of
State-agent immunity as to the negligence and wantonness
claims asserted against him by Paul Dodd and Cynthia Dodd, as
next friends and parents of Charles Alexander Coker, a minor
(collectively referred to as "Coker"), and by Matthew Messer.
Facts
At the time of the incident made the basis of this
action, Charles was enrolled in the 11th grade at Southside
High School ("the school"). Brett Yancey was employed as the
head football coach and director of athletics at the school.
In the spring of 2004, Charles was enrolled in the first-block
weight-lifting class taught by Yancey for those students
participating in the school's football program. Yancey was
given no guidelines or direction on how to teach the weight-
lifting class, and there was no textbook for the class. The
weight-lifting class consisted of the students' lifting
weights and participating in speed and agility drills as part
of the strength and conditioning program for the members of
the football team. The students were required by Yancey, as
part of the weight-lifting class, to clean the weight room,
1070922
Yancey testified that immediately after instructing the
1
students to carry the trash barrels to the dumpsters, he
returned to his office in the field house to take a telephone
call. He stated that he was not present when the students
were loading the barrels onto Messer's pick-up truck. Charles
testified in his deposition taken on February 28, 2006, that
he and the other students loaded the barrels onto the truck
and that Yancey was not present. However, later in the same
deposition Charles stated that he did not load any trash
barrels onto Messer's pick-up truck; rather, he stated that
Yancey asked him to "go help them unload it." It could be
inferred from this statement that Yancey was present when the
3
locker room, and bathrooms located in the field house. Yancey
stated that the purpose of having the students clean the field
house was to help prepare them for football by instilling
"team discipline" in the students.
On April 13, 2004, at the conclusion of the weight-
lifting class and after the students had changed into their
school clothes, Charles and the other students cleaned the
field house as they normally did. After the field house was
cleaned, Yancey directed several students, including Charles
and Messer, to carry the filled trash barrels to the school's
dumpsters, which were located behind the school's cafeteria,
a relatively short distance from the field house. Messer, a
licensed driver, retrieved his pick-up truck from a campus
parking lot and drove it to the field house, where the
students loaded the trash barrels onto the pick-up truck.1
1070922
trash barrels were being loaded onto Messer's pick-up truck.
Messer testified that Yancey was present when the trash
barrels were being loaded onto his truck and told the students
to "put up the tailgate." Nevertheless, Yancey testified that
he routinely allowed the students in the weight-lifting class
to use their pick-up trucks to remove the trash barrels to the
dumpsters.
Football coaches before Yancey had routinely allowed the
2
students to use their personal vehicles to carry the trash
barrels to the dumpsters.
4
Although Yancey testified that he routinely allowed students
to use their pick-up trucks to haul the trash barrels to the
dumpsters, he did not specifically instruct the students --
including Messer on this occasion -- to use one of their
vehicles to carry the trash barrels to the dumpsters.
2
After the trash barrels were loaded onto Messer's pick-up
truck, Messer and three other students climbed into the cab of
the truck while Charles and Barry Hill, another student in
Yancey's weight-lifting class, climbed into the bed of the
pick-up truck with the trash barrels. Messer stated that he
was not aware that Charles had climbed onto the truck.
Charles, on the other hand, testified that Messer was aware
that he had climbed onto the truck. The tailgate on Messer's
truck was left down. Charles testified that he could have
closed the tailgate and then climbed over it when he entered
1070922
5
the bed of the truck but did not do so. Charles testified
that he sat near the rear of the truck bed with his legs
extended out in front of him. Hill testified in his affidavit
that Charles kneeled on the tailgate and held onto the
tailgate's support cable.
The field house is located at the end of the athletic
practice field for the school. The practice field is
surrounded by a track and enclosed by a fence. School parking
lots are located on both the right and left sides of the
practice field. A one-way street runs adjacent to the parking
lot on the left side of the practice field. This one-way
street, which runs in the opposite direction of the field
house, separates the parking lot on the left side of the
practice field from an additional school parking lot located
across the one-way street. The school's cafeteria and
dumpsters are located behind the field house.
There appears to have been three possible routes from the
field house to the dumpsters. Yancey did not instruct Messer
and the other students to take a particular route to the
dumpsters. He testified that the route students normally took
to the dumpsters, and the one he assumed the students would
1070922
6
take on the day in question, required a truck to be positioned
in the parking lot on the left side of the practice field
close to the field house. The students would carry the trash
barrels from the field house to the truck through a small
opening in the fence that encloses the practice field. Once
the trash barrels were loaded onto the truck, the truck would
exit the parking lot and turn right onto the one-way street,
going the wrong way. The truck would then travel a short
distance in the wrong direction on the one-way street to the
dumpsters. Yancey opined that this route did not require the
students to actually leave the campus.
Yancey testified that when he carried the trash barrels
to the dumpsters he would drag them along a walking path.
This path runs to the rear of the field house along the left
side and across a parking lot to the dumpsters.
The route actually taken by Messer and the students on
the day in question allowed Messer to position his truck
directly in front of the field house by driving onto the track
surrounding the practice field through a gate on the fence on
the right side of the practice field. Once the trash barrels
were loaded onto the truck, Messer exited the practice field
1070922
Nothing in the materials before us indicates whether this
3
street runs through the school campus or whether it is off
campus.
Hill testified in his affidavit that because a gate was
4
kept locked the only possible way to access the dumpsters was
to drive on the one-way street.
7
through the gate by which he had entered and drove into the
parking lot on the right side of the field house. Messer then
drove to the lower end of the parking lot and turned right
onto a street. Messer then turned right off of this street
3
onto the one-way street that bisects the parking lots and
proceeded in the wrong direction on the one-way street to the
dumpsters. This route, as opposed to the route students
normally took to the dumpsters, required Messer to drive in
the wrong direction on the one-way street for a greater
distance in order to reach the dumpsters. As Messer was
4
driving down the one-way street to the dumpsters his truck hit
a "dip" and Charles fell from the bed of the truck and was
severely injured.
Charles testified that the students could have walked the
trash barrels to the dumpsters from the field house in less
time than it took to retrieve Messer's truck and haul the
barrels to the dumpsters. Charles also testified that he
1070922
8
could have walked to the dumpsters to meet Messer and the
other students to help them unload the trash barrels.
Yancey presented the affidavit of Jerome Wilkens, a
retired member of the Board, who testified that the Board had
no written policy prohibiting students from leaving the school
campus in their vehicles during school hours. Yancey stated
that students were permitted to leave campus during school
hours to attend vocational school, baseball practice, and
softball practice. However, the student handbook in effect at
the time of the incident provides under its general rules
provision that "[s]tudents are not permitted to go to a car or
parking lot without permission of Principal or Assistant
Principal." The student handbook also provides the following
with regard to parking rules: "All students will come
immediately into the school after parking their cars, and
shall not return to the car until the end of the school day
without permission from the administration. When possible an
administrator will accompany the student to the car." Yancey
stated that he was provided a copy of the student handbook but
that he had not read it. Following the accident, Gene
Johnson, the school's principal, notified Yancey by letter
1070922
Coker also named as a defendant Messer's grandfather,
5
with whom Messer resided. The grandfather was later
dismissed.
By the time Messer filed his answer and cross-claim, he
6
had reached the age of majority.
9
that when "giving instructions to students be very specific to
detail and at no time can you let a student use their vehicle
unless we have written permission from the parent."
Coker sued Messer, who was then a minor, alleging
negligence and wantonness in the operation of his truck, which
proximately resulted in Charles's being injured. On April 5,
5
2006, Coker amended his complaint to add Yancey as a
defendant, alleging that Yancey had negligently and wantonly
directed the students to remove the trash barrels to the
school dumpsters and had negligently and wantonly supervised
the students.
On May 4, 2006, Yancey answered the complaint, asserting
among other defenses, State-agent immunity as a defense to
Coker's complaint. On May 11, 2006, Messer answered Coker's
complaint and cross-claimed against Yancey. Messer alleged
6
that Yancey had negligently and wantonly ordered him to drive
his truck off campus by requiring him to carry the trash
barrels to the dumpsters without first obtaining permission
1070922
10
from a parent and had negligently and wantonly failed to
supervise the students Yancey had ordered to remove the trash
barrels to the dumpsters.
On November 13, 2007, Messer moved for a summary judgment
as to the cross-claim asserted against Yancey. Messer argued
that Yancey was not entitled to State-agent immunity because,
Messer argued, Yancey was not acting within the general scope
of his authority because his actions violated school policy
set forth in the student handbook. On November 15, 2007,
Yancey moved for a summary judgment arguing, among other
things, that he was entitled to State-agent immunity as to the
negligence and wantonness claims asserted against him by Coker
and Messer. The trial court, on February 21, 2008, entered an
order denying Yancey's motion for a summary judgment. This
petition followed.
Standard of Review
This Court has stated:
"'While the general rule is that the denial of
a motion for summary judgment is not reviewable, the
exception is that the denial of a motion grounded on
a claim of immunity is reviewable by petition for
writ of mandamus. Ex parte Purvis, 689 So. 2d 794
(Ala. 1996)....
1070922
11
"'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).
"'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)). A writ of
mandamus is an extraordinary remedy available only 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
1070922
12
jurisdiction of the court.'" Ex parte Nall, 879 So. 2d 541,
543 (Ala. 2003) (quoting Ex parte BOC Group, Inc., 823 So. 2d
1270, 1272 (Ala. 2001)).
Discussion
In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), a
plurality of this Court restated the test for determining when
a State employee is entitled to State-agent immunity:
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's
"(1) formulating
plans,
policies,
or
designs;
or
"(2) exercising his or her judgment in the
administration
of
a
department
or
agency
of
government, including, but not limited to, examples
such as:
"(a)
making
administrative
adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d) hiring, firing, transferring,
assigning, or supervising personnel; or
"(3) discharging duties imposed on a department
or agency by statute, rule, or regulation, insofar
as the statute, rule, or regulation prescribes the
manner for performing the duties and the State agent
performs the duties in that manner; or
1070922
13
"(4) exercising judgment in the enforcement of
the criminal laws of the State, including, but not
limited to, law-enforcement officers' arresting or
attempting to arrest persons; or
"(5) exercising judgment in the discharge of
duties imposed by statute, rule, or regulation in
releasing prisoners, counseling or releasing persons
of unsound mind, or educating students.
"Notwithstanding
anything
to
the
contrary
in
the
foregoing statement of the rule, a State agent shall
not be immune from civil liability in his or her
personal capacity
"(1) when the Constitution or laws of the United
States, or the Constitution of this State, or laws,
rules, or regulations of this State enacted or
promulgated for the purpose of regulating the
activities
of
a
governmental
agency
require
otherwise; or
"(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his
or her authority, or under a mistaken interpretation
of the law."
792 So. 2d at 405. Although Cranman was a plurality
decision, the restatement of law as it pertains to State-agent
immunity set forth in Cranman was subsequently adopted by this
Court in Ex parte Rizk, 791 So. 2d 911 (Ala. 2000), and Ex
parte Butts, 775 So. 2d 173 (Ala. 2000).
Additionally, this Court has stated:
"This Court has established a 'burden-shifting'
process
when
a
party
raises
the
defense
of
State-agent immunity. Giambrone v. Douglas, 874 So.
1070922
14
2d 1046, 1052 (Ala. 2003). In order to claim
State-agent immunity, a State agent bears the burden
of demonstrating that the plaintiff's claims arise
from a function that would entitle the State agent
to immunity. Giambrone, 874 So. 2d at 1052; Ex
parte Wood, 852 So. 2d 705, 709 (Ala. 2002). If the
State agent makes such a showing, the burden then
shifts to the plaintiff to show that the State agent
acted willfully, maliciously, fraudulently, in bad
faith, or beyond his or her authority. Giambrone,
874 So. 2d at 1052; Wood, 852 So. 2d at 709; Ex
parte Davis, 721 So. 2d 685, 689 (Ala. 1998). 'A
State agent acts beyond authority and is therefore
not immune when he or she "fail[s] to discharge
duties pursuant to detailed rules or regulations,
such as those stated on a checklist."' Giambrone,
874 So. 2d at 1052 (quoting Ex parte Butts, 775 So.
2d 173, 178 (Ala. 2000))."
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006).
I.
We first must determine whether Yancey sufficiently
demonstrated that the claims asserted against him arise from
a function that would entitle him to State-agent immunity. As
stated in Cranman:
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's
"....
"(5)
exercising
judgment
in
the
discharge of duties imposed by statute,
rule, or regulation in releasing prisoners,
1070922
15
counseling or releasing persons of unsound
mind, or educating students."
792 So. 2d at 405 (emphasis added).
"Generally, State agents are afforded immunity from civil
liability when the conduct made the basis of the claim is
based on the exercise of judgment in supervising and educating
students." Ex parte Nall, 879 So. 2d at 544. This Court
recently stated that "[e]ducating students includes not only
classroom teaching, but also supervising and educating
students in all aspects of the educational process." Ex parte
Trottman, 965 So. 2d 780, 783 (Ala. 2007).
Yancey was employed by the Board as the school's head
football coach and the director of athletics. Part of his
duties included teaching a weight-lifting class for those
students participating in the school's football program.
Yancey was given no guidelines or direction on how to teach
the weight-lifting class, and there was no textbook for the
class. Yancey required the students, as part of the weight-
lifting class, to clean the weight room, locker room, and
bathrooms located in the field house. Yancey's purpose for
having the students clean the field house was to help prepare
them for football by instilling "team discipline" in the
1070922
16
students. Because Yancey was given no guidelines in teaching
the weight-lifting class, the conduct of the class was left to
the exercise of his judgment and discretion. Accordingly, we
conclude that, at the time of Charles's injury, Yancey was
engaged in a function that would entitle him to immunity. Ex
parte Cranman, supra.
II.
Because we have concluded that when Charles was injured
Yancey was engaged in a function that would entitle him to
immunity, the burden shifts to Coker and Messer to establish
that Yancey acted willfully, maliciously, fraudulently, in bad
faith, or beyond his authority. Ex parte Cranman, supra. "A
State agent acts beyond authority and is therefore not immune
when he or she 'fail[s] to discharge duties pursuant to
detailed rules or regulations, such as those stated on a
checklist.'" Giambrone v. Douglas, 874 So. 2d 1046, 1052
(Ala. 2003) (quoting Ex parte Butts, 775 So. 2d at 178).
In this case Yancey was provided a copy of the student
handbook that prohibited students from going to their vehicles
or to the parking lot "without the permission of Principal or
Assistant Principal." The handbook also required students to
1070922
17
come immediately into the school after parking their cars and
forbade them from returning to their vehicles until the end of
the school day without first obtaining "permission from the
administration."
Yancey contends that he is not bound by the student
handbook because, he says, it governs students only and not
faculty. He further contends that, assuming he is bound by
the student handbook, as the school's athletics director he
was a member of the "administration" and, therefore, had the
authority to allow the students to return to their vehicles
during the course of the school day. We disagree.
The student handbook was provided to both students and
faculty alike. Although the handbook primarily references
student conduct, it nonetheless establishes by implication
limits on the faculty's authority. In the context of a
student-teacher relationship, the teacher assumes the role of
the authority figure. In order to function in that role, the
teacher assumes a duty pursuant to the handbook to ensure that
the student abides by the limits placed on the conduct by the
handbook. For example, if the handbook limits the student's
conduct by forbidding the student from returning to his or her
1070922
18
vehicle in the parking lot during the school day, the
teacher's authority with respect to permitting or directing
the student's conduct must be correspondingly limited.
Otherwise, the teacher would become complicit in the violation
of the rule, and the rule would be rendered meaningless.
Accordingly, we conclude that the student handbook established
limits on Yancey's authority in exercising his judgment in
educating students.
As for Yancey's contention that as the director of
athletics
for
the
school
he
was
a
member
of
the
"administration," we note that the handbook identifies on its
cover the principal and assistant principal of the school,
along with the superintendent and assistant superintendent and
other school officials. The director of athletics is not
identified there. Rather, the director of athletics is
identified on the inside of the handbook, together with the
other teachers, under a section entitled "Faculty and Staff."
Thus, we conclude that Yancey was a teacher and an
administrator insofar as school athletics are concerned but
that he was not a school administrator, and therefore he had
no authority to grant permission for a student to return to
1070922
19
his vehicle during the school day. Moreover, even assuming
Yancey could have been considered an administrator, he would
have had the authority under the handbook only to allow the
students to return to their vehicles during the school day.
Nothing in the handbook can be read as giving an administrator
the authority to permit the students to operate their vehicles
for the purpose of hauling trash. This is further supported
by the letter to Yancey from Principal Johnson following the
accident informing Yancey that the students are not allowed to
operate their vehicles during the school day without
permission from their parents.
The materials before this Court indicate that Yancey, by
his own admission, routinely permitted his students to return
to, and use, their vehicles to remove trash barrels from the
field house to the dumpsters behind the field house. This
practice is a clear violation of the policy set forth in the
student handbook, to which Yancey is bound. Accordingly, we
conclude that Coker and Messer presented substantial evidence,
in large degree through Yancey's own statements, that Yancey
acted beyond his authority in permitting Messer to use his
vehicle to move the trash barrels from the field house to the
1070922
20
dumpsters and has therefore failed to establish a clear legal
right to the relief sought. Therefore, his petition for the
writ of mandamus is denied.
PETITION DENIED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, and
Parker, JJ., concur.
See, J., concurs specially.
Murdock, J., dissents.
1070922
21
SEE, Justice (concurring specially).
I agree with the main opinion that Yancey has not
demonstrated that he is entitled to the writ of mandamus. The
doctrine of sovereign immunity does more than offer a defense
at trial. Qualified immunity "is an immunity from suit rather
than a mere defense to liability; and like an absolute
immunity, it is effectively lost if a case is erroneously
permitted to go to trial." Mitchell v. Forsyth, 472 U.S. 511,
526 (1985). See also Siegert v. Gilley, 500 U.S. 226, 232
(1991) ("One of the purposes of immunity, absolute and
qualified, is to spare a defendant not only unwarranted
liability but unwarranted demands customarily imposed upon
those defending a long drawn out lawsuit."). Therefore, we
should be reluctant to send the question of sovereign immunity
to the jury, because doing so defeats a fundamental function
of the doctrine.
Additionally, sovereign immunity is not intended to be
limited to protecting a public actor only when he or she is
acting in complete compliance with every statute, rule, and
regulation; instead, it is intended to protect the public
actor when he or she has a lapse in judgment or imperfectly
1070922
22
carries out responsibilities. See, e.g., Ex parte Kennedy,
[Ms. 1061377, April 25, 2008] ___ So. 2d ___, ___ (Ala. 2008)
("'State-agent
immunity
protects
state
employees,
as
agents
of
the State, in the exercise of their judgment in executing
their work responsibilities.'" (quoting Ex parte Hayles, 852
So. 2d 117, 122 (Ala. 2002))).
I have previously noted that "to deny teachers State-
agent immunity and to require them to defend themselves in
civil actions brought by students or parents would discourage
them in the performance of their public responsibilities."
Giambrone v. Douglas, 874 So. 2d 1046, 1057 (Ala. 2003) (See,
J., specially concurring). In the case before us, however,
Yancey did not display a mere lapse in judgment by allowing
Messer to use his own truck to move the trash barrels to the
dumpster. The record indicates that it was Yancey's practice
to allow the students in his weight-lifting class to use their
personal cars and trucks to move the trash barrels to the
dumpster –- a practice that is a direct violation of a clear
school policy stated in the student handbook. There is no
suggestion that Yancey had requested or received a variance
from compliance with that policy or that the handbook is not
1070922
23
binding on Yancey. See Ex parte Cranman, 792 So. 2d 392, 405
(Ala. 2000) ("Notwithstanding anything to the contrary in the
foregoing statement of the rule, a State agent shall not be
immune from civil liability in his or her personal capacity
... when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law.").
Thus, I agree that Yancey has failed to demonstrate that
he has a clear legal right to a summary judgment based on his
immunity defense. I also agree, therefore, that Yancey is not
entitled to the writ of mandamus. Ex parte Nall, 879 So. 2d
541, 543 (Ala. 2003). | October 31, 2008 |
7c7f2a6b-4ccd-44cb-ac7a-129cc72b30d7 | AmerUs Life Insurance Company v. Bobby Ray Smith et al. | N/A | 1061535 | 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
_________________________
1061535
_________________________
AmerUs Life Insurance Company
v.
Bobby Ray Smith et al.
Appeal from St. Clair Circuit Court
(CV-02-304)
LYONS, Justice.
AmerUs Life Insurance Company appeals from the trial
court's order denying its postjudgment motion for a judgment
as a matter of law ("JML"), a new trial, or a remittitur. The
trial court refused to set aside or modify a judgment entered
1061535
The complaint named as a plaintiff the Bobby Ray Smith
1
Family Trust. Martha Smith, in her capacity as the trustee,
was later substituted as a plaintiff in place of the trust.
2
on a jury verdict in favor of Bobby Ray Smith; Martha Smith,
as trustee of the Bobby Ray Smith Family Trust; and Precision
1
Husky Corporation (hereinafter sometimes referred to as "the
insureds"). We reverse and render a JML in favor of AmerUs.
I. Factual Background and Procedural History
In 1987, Carl Edward Jeffrey, an agent for Central Life
Assurance Company (the predecessor corporation of AmerUs),
contacted Bobby Ray Smith to solicit Smith's purchase of life
insurance. Jeffrey, an independent agent, represented a
number of insurance companies, but he wrote the majority of
his insurance policies through Central Life. Jeffrey was a
member of the church where Smith served as the minister; Smith
also operated his own business. When Smith met with Jeffrey
to discuss purchasing life insurance, Smith already had a
$3,000,000 life-insurance policy issued by Principal Mutual
Life Insurance Company, which he canceled when he subsequently
purchased insurance from Jeffrey. The Principal Mutual policy
was issued at a standard rating and was pledged to a bank as
security for a loan made by one of Smith's businesses. Smith
1061535
3
says that Jeffrey told him that he could provide him a better
policy than the Principal Mutual policy and that Jeffrey
showed him a written projection illustrating a $3,000,000
policy to be issued by Central Life that extended until Smith
was 95 years old; Smith was then 53 years old. Smith says
that Jeffrey represented to him that the policy would last for
42 years, that the annual premium would be $42,840, and that
the annual premium would remain level for the entire 42 years.
Smith completed an application dated January 6, 1987, for a
policy with a death benefit of $3,500,000, which Jeffrey
submitted to Central Life. Central Life agreed to issue the
policy, but stated in a letter to Jeffrey that because of
Smith's medical history, the policy would be issued with a
class "C" rating. Jeffrey then amended the application for
the policy to reduce the requested coverage to $500,000.
Jeffrey submitted another application dated March 24, 1987,
for a $3,000,000 policy.
Pursuant to the applications, Central Life issued two
policies insuring Smith's life. The first policy, issued on
April 14, 1987, had a death benefit of $500,000 ("the small
policy"). The second policy, issued on May 19, 1987, had a
1061535
4
death benefit of $3,000,000 ("the large policy"). Both
policies were issued with a class "C" rating. Smith says that
Jeffrey did not tell him that the policies did not have a
standard rating or explain to him the meaning of a class "C"
rating
and
that
Jeffrey
did
not
provide
an
amended
illustration to show how the policy projections might differ
from the original projections Jeffrey had showed him if the
policy had a class "C" rating as compared to a standard
rating. The rating class, a class "C," appeared on the face
of the policies.
Both policies issued to Smith by Central Life were
flexible-premium adjustable life-insurance policies, known in
the insurance industry as universal life-insurance policies.
Both the premium and the death benefit are flexible in a
universal life-insurance policy. Smith's policies provided
for the payment of a "planned premium." AmerUs states that a
planned premium is the product of a discussion between the
agent and the client as to the amount of the premium the
client wishes to pay for the policy. The premium is set in a
range, with a minimum premium at the low range and a maximum
premium at the high range.
1061535
5
Each of Smith's policies advised: "Please read your
policy carefully." Each policy also contained a provision
giving the insured 20 days to examine the policy and allowing
the policy to be canceled "for any reason within 20 days after
you receive it." Smith stated that when he received the large
policy, he looked at the declarations page, but that he did
not otherwise read the policy. He also said that after
Jeffrey delivered the policies to him, Jeffrey never told him
that Central Life had not been able to provide a policy with
the premium amount and the guaranteed period he and Jeffrey
had discussed. Smith further stated that he never received
any information from any source informing him that the policy
terms as conveyed to him by Jeffrey were wrong.
The cover page of each policy describes it as a "FLEXIBLE
PREMIUM ADJUSTABLE LIFE POLICY." The schedule of benefits and
premiums reflects a "planned premium" and a "payment period"
of 42 years. The annual planned premium under the large
policy was $42,840. The annual planned premium under the
small policy was $5,739.96. Each policy also contained the
following disclaimer:
1061535
6
"THIS POLICY MAY END BEFORE THE INSURED REACHES AGE
95 IF SUBSEQUENT PREMIUMS ARE NOT SUFFICIENT TO
CONTINUE THIS POLICY IN FORCE UNTIL THAT TIME."
Approximately a year after Central Life issued the large
policy, Smith talked with Jeffrey about increasing its
coverage to $3,500,000. Smith says that Jeffrey told him that
he could obtain the additional coverage without any change in
the planned premium. Smith also says that Jeffrey did not
tell him that the additional $500,000 in coverage would result
in an increase in the cost of insurance that would be deducted
from the policy values. Smith then had the coverage on the
large policy increased to $3,500,000.
When
the
policies
were
issued,
Southern
Comfort
Conversions, Inc., a company in which Smith held a 50%
interest, owned the small policy, and Precision Husky
Corporation, the company in which Smith held a 100% interest,
owned the large policy. Each company paid the premiums on the
policy it owned. Southern Comfort transferred the small
policy to Precision Husky in 1991. On December 29, 1993,
Precision Husky transferred both policies to Smith. The next
day, he transferred ownership of both policies to his wife,
Martha Smith, as trustee of the Bobby Ray Smith Family Trust.
1061535
7
Thereafter, Bobby Ray Smith paid the premiums on both
policies.
Central Life sent annual statements concerning both
policies, which Smith acknowledged receiving. The annual
statements reflected, as early as 1988, that if only the
planned premiums were paid, the policies would terminate well
before Smith reached age 95. For example, the 1991 annual
statement for the large policy advised that it would terminate
in October 2004 if only the planned premiums were paid. Smith
denied having read any of the annual statements, but admitted
that if he had read them, he would have seen that if only the
planned premiums were paid, the policies would lapse well
before he reached age 95. Smith suffered a heart attack in
1989 and thereafter was unable to obtain other insurance to
replace the policies. Smith testified that because he had
become uninsurable, any information concerning the policies
that he received after 1989 was irrelevant to him.
In 1991, George Brooks, another Central Life agent,
called on Smith to solicit his insurance business. Brooks was
an agent for Central Life from 1984 until 2005. Smith stated
that he understood that Jeffrey was no longer associated with
1061535
8
Central Life and that Brooks had "inherited" Jeffrey's files.
Brooks testified that he and Jeffrey were both employed as
"career agents" with Central Life, which meant that the agent
did the majority of his business with Central Life and
received from the company health insurance and retirement-plan
contributions. Brooks said that a career agent was more than
just a soliciting agent, with the right to complete
applications, sign them as a licensed agent, and turn them in
to the company for acceptance. A career agent, he said, had
binding authority that was higher than that of a typical
insurance broker.
Brooks reviewed Smith's insurance file, which included
the small policy and the large policy, as well as the
illustration that Jeffrey had used in his original sale of the
policies to Smith. That illustration was premised upon a
policy with a $3,000,000 death benefit, a $42,800 annual
premium, and an interest rate of 8.5% projected to age 95.
The illustration was based upon the assumption that the policy
would be issued at a standard rate, but the policy was in fact
issued at a higher class "C" rate because of Smith's health
conditions. Brooks testified that the effect of the higher
1061535
9
class "C" rating was a 75% increase in the underlying cost-of-
insurance expense. After reviewing Smith's insurance file,
Brooks stated that he concluded that the large policy would
not extend for 42 years at the premium quoted by Jeffrey and
that Jeffrey's representation to Smith that the policy would
pay a $3,500,000 death benefit with a stable premium for 42
years was not accurate. Likewise, Brooks concluded that the
small policy also would not extend for 42 years at the premium
quoted by Jeffrey.
During discussions in early 1991, Smith asked Brooks to
obtain copies of the annual statements on the large policy and
the small policy. Brooks did so, sending copies of the
statements to Smith. The 1990 statements reflected that
payment of the annual planned premium of $5,739.96 on the
small policy would carry the policy only to December 2003
(approximately 26 years) and payment of the annual planned
premium of $42,840 on the large policy would carry the policy
only to November 2004 (approximately 27 years). Brooks also
provided Smith with illustrations showing that a policy with
a life-insurance benefit of $3.5 million based upon a
projected premium of $42,000 per year would not extend to age
1061535
10
95. Brooks testified that, based on these illustrations, the
annual statements, and other information, he informed Smith
that his policies would not extend to age 95 with the level
premiums quoted by Jeffrey. Smith said that Brooks told him
that he might "have a problem down the road" and that he did
not think that either policy would extend for 42 years without
increasing the planned premiums. According to Brooks, Smith
was concerned and seemed surprised when Brooks advised him
that the premiums on the large policy and the small policy
would not remain level for 42 years. Smith testified that he
never would have purchased the policies if he had thought
there would be a problem "down the road."
Brooks stated that after advising Smith that the policies
would not maintain coverage for 42 years at the fixed annual
premiums as Jeffrey had represented, he discussed with Smith
the options available to him: discontinuing the policies,
seeking a lesser death benefit for the same premiums, paying
higher premiums, or asking Central Life to lower the rating on
the policies from a class "C" rating to a standard rating.
Brooks testified that Smith seemed to understand the problems
and his various options. Brooks tried to secure other
1061535
11
insurance for Smith, but he was unsuccessful in obtaining
coverage at a rate acceptable to Smith. Smith stated that he
then made the judgment call to continue paying the premiums on
the policies and to see how long they would last. According
to Smith, the policies actually extended another 10 years
after he made that decision. Smith said that he had trusted
Jeffrey and had believed what Jeffrey had told him but that he
did not believe what Brooks told him because he thought Brooks
was just trying to sell him some insurance.
In 2001, Smith had additional discussions with Brooks.
Brooks said that he informed Smith at that time that his
policies would lapse within a few months, perhaps as long as
a year. By then, AmerUs had acquired Central Life. Smith
obtained legal counsel, who drafted a letter dated September
16, 2002, for Smith to send to AmerUs stating that he had been
told his monthly premium payment on the large policy would not
change for the life of the policy and that unless AmerUs
agreed to continue the large policy in effect at the same
premium he had been paying, he could not continue to maintain
the policy. On September 25, AmerUs responded to Smith's
letter, advising him that the premiums were not sufficient to
1061535
12
cover the cost of insurance and that the cash value had fallen
below the amount necessary to sustain the payment of the
premiums. AmerUs further advised Smith that in order to keep
the large policy from lapsing, a payment of $24,905.75 would
be required by October 12, 2002. Smith did not make any
further premium payments, and both policies lapsed in October
2002.
The insureds sued AmerUs, Jeffrey, and the Jeffrey
Planning Group, Inc. (a corporation owned by Jeffrey). The
complaint alleged claims of fraudulent misrepresentation,
fraudulent suppression, and breach of contract as to all
defendants, and a claim of negligent and wanton hiring,
training, or supervision of Jeffrey as to AmerUs. AmerUs
answered the complaint, denying the allegations, denying any
agency relationship with Jeffrey, and asserting various
affirmative defenses, including a statute-of-limitations
defense. Neither Jeffrey nor Jeffrey Planning ever answered
the complaint.
AmerUs then filed a motion for a summary judgment. One
of its arguments was that the insureds' claims were barred by
res judicata or collateral estoppel because of the settlement
1061535
13
of a class action against AmerUs in which the insureds were
members of the class. The trial court denied the motion, but
allowed AmerUs to petition this Court for permission to appeal
pursuant to Rule 5, Ala. R. App. P. This Court allowed the
interlocutory appeal and affirmed the trial court's order
denying the summary-judgment motion, concluding that the
insureds' claims were not barred by the class-action
settlement. AmerUs Life Ins. Co. v. Smith, 937 So. 2d 510
(Ala. 2006). The case then proceeded to a jury trial.
On the first day of trial, the insureds moved for the
entry of a default judgment against Jeffrey and Jeffrey
Planning. The trial court orally granted the insureds'
motion. Contending that Jeffrey had never been properly
served, AmerUs sought to have the default judgment set aside.
The trial court then set aside the default judgment and placed
the insureds' claims against Jeffrey and Jeffrey Planning on
its administrative docket. Thereafter, the trial court, ex
mero motu, ordered a separate trial for Jeffrey and Jeffrey
Planning pursuant to Rule 42, Ala. R. Civ. P.
The case was tried on the insureds' fraud claims and
breach-of-contract claim against AmerUs. During the trial,
1061535
14
the insureds introduced evidence that Smith had paid a total
of $648,075.27 in premiums on the large policy and a total of
$80,128.24 in premiums on the small policy. They also
introduced
schedules
reflecting
their
calculations
of
interest
Smith could have earned on the amount Smith had paid in
premiums. Smith testified as to his mental anguish, stating
only that when he received the letter from AmerUs in 2002, it
gave him a "terrible feeling." AmerUs filed motions for a JML
at the conclusion of the insureds' evidence and at the
conclusion of the case, but the trial court denied both
motions.
After all evidence had been presented, Smith and
Precision Husky moved to amend their complaint to add as a
plaintiff Martha Smith, as trustee of the Bobby Ray Smith
Family Trust, stating that the purpose of the amendment was
"to simply specify that the trust is suing through Martha
Smith, as the Trustee of the Bobby Ray Smith Trust." The
trial court allowed the amendment over AmerUs's objection.
The court refused to reopen the case to permit AmerUs to
question the newly added plaintiff, but allowed the insureds
to place Martha Smith's 11-page deposition into the record.
1061535
The court charged the jury on both the fraud claims and
2
the breach-of-contract claim. The jury was specifically
instructed that it could not return a verdict on the fraud
claims and the breach-of-contract claim and was told that
punitive damages could be awarded only on the fraud counts.
AmerUs concluded that the jury's verdict awarding both
compensatory and punitive damages necessarily indicated that
it found in favor of the plaintiffs solely on the fraud causes
of action. We agree. Indeed, AmerUs, after referring to the
trial court's instruction and the resulting jury verdict for
both compensatory and punitive damages, stated in its
principal brief that it would present arguments primarily
relating to the fraud claims. Smith, in his principal brief,
mentions the breach-of-contract claim having been included in
the initial complaint but does not thereafter refer to it.
15
The jury returned a verdict in favor of the insureds,
awarding compensatory damages of $2,500,000 and punitive
damages of $4,000,000. The trial court entered a judgment on
2
the verdict and certified the judgment as final pursuant to
Rule 54(b), Ala. R. Civ. P. AmerUs filed a postjudgment
motion for a JML, a new trial, or a remittitur. The trial
court denied the motion. AmerUs then appealed.
II. Standard of Review
The dispositive issue in this case is whether AmerUs is
entitled to a JML. This Court's standard of review on a
motion for a JML is well settled:
"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.
1061535
16
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).
III. Analysis
We first address AmerUs's argument that the insureds'
reliance upon the representations made by Jeffrey was
unreasonable as a matter of law. In order to recover for
fraud, the insureds needed to establish (1) that AmerUs made
a false representation, (2) that the misrepresentation
involved a material fact, (3) that the insureds relied on the
misrepresentation, and (4) that the misrepresentation damaged
1061535
See Black's Law Dictionary 1605 (8th ed. 2004), defining
3
the maxim "volenti non fit injuria" as "[t]he principle that
a person who knowingly and voluntarily risks danger cannot
recover for any resulting injury."
17
the insureds. Liberty Nat'l Life Ins. Co. v. Ingram, 887 So.
2d 222, 227 (Ala. 2004). See also § 6-5-101, Ala. Code 1975.
Moreover, a plaintiff must prove that he or she reasonably
relied on the defendant's misrepresentation in order to
recover damages for fraud. This Court explained the
reasonable-reliance principle in Torres v. State Farm &
Casualty Co., 438 So. 2d 757, 758-59 (Ala. 1983):
"Because it is the policy of courts not only to
discourage fraud but also to discourage negligence
and inattention to one's own interests, the right of
reliance comes with a concomitant duty on the part
of the plaintiffs to exercise some measure of
precaution to safeguard their interests. In order
to recover for misrepresentation, the plaintiffs'
reliance must, therefore, have been reasonable under
the circumstances. If the circumstances are such
that a reasonably prudent person who exercised
ordinary care would have discovered the true facts,
the plaintiffs should not recover. Bedwell Lumber
Co. v. T&T Corporation, 386 So. 2d 413, 415 (Ala.
1980).
"'If the purchaser blindly trusts, where he
should not, and closes his eyes where
ordinary diligence requires him to see, he
is willingly deceived, and the maxim
applies,
"volunti
[sic]
non
fit
injuria."'[3]
1061535
18
"Munroe v. Pritchett, 16 Ala. 785, 789 (1849)."
In Foremost Insurance Co. v. Parham, 693 So. 2d 409 (Ala.
1997), this Court overruled Hickox v. Stover, 551 So. 2d 259
(Ala. 1989), in which this Court had adopted a "justifiable-
reliance" standard under which the plaintiff, to recover on a
fraud cause of action, had to prove only that he or she had
justifiably relied on the defendant's misrepresentation. The
Court stated:
"[W]e conclude that the 'justifiable reliance'
standard adopted in Hickox [v. Stover, 551 So. 2d
259 (Ala. 1989)], which eliminated the general duty
on the part of a person to read the documents
received in connection with a particular transaction
(consumer or commercial), should be replaced with
the 'reasonable reliance' standard most closely
associated with Torres v. State Farm Fire & Casualty
Co., 438 So. 2d 757 (Ala. 1983). The 'reasonable
reliance'
standard
is,
in
our
view,
a
more
practicable standard that will allow the fact-finder
greater flexibility in determining the issue of
reliance
based
on
all
of
the
circumstances
surrounding a transaction, including the mental
capacity,
educational
background,
relative
sophistication, and bargaining power of the parties.
In addition, a return to the 'reasonable reliance'
standard will once again provide a mechanism ...
whereby the trial court can enter a judgment as a
matter of law in a fraud case where the undisputed
evidence indicates that the party or parties
claiming fraud in a particular transaction were
fully capable of reading and understanding their
documents,
but
nonetheless
made
a
deliberate
decision to ignore written contract terms."
1061535
19
Foremost, 693 So. 2d at 421. Therefore, in order to satisfy
the reliance element of their fraud claim, the insureds must
show not only that they relied on Jeffrey's alleged
misrepresentation, but also that their reliance was reasonable
in light of the facts surrounding the transaction in question.
The return to the reasonable-reliance standard imposes
again on a plaintiff a "general duty ... to read the documents
received in connection with a particular transaction,"
Foremost, 693 So. 2d at 421, together with a duty to inquire
and investigate. "Fraud is deemed to have been discovered
when the person either actually discovered, or when the person
ought to or should have discovered, facts which would provoke
inquiry by a person of ordinary prudence, and, by simple
investigation of the facts, the fraud would have been
discovered." Gonzales v. U-J Chevrolet Co., 451 So. 2d 244,
247 (Ala. 1984). As this Court stated in Ex parte Caver, 742
So. 2d 168, 172-73 (Ala. 1999):
"Foremost ended the era of 'ostrichism' that had
been heralded in when this Court adopted the
'justifiable reliance' standard in Hickox v. Stover,
551 So. 2d 259 (Ala. 1989), and it foreclosed the
right of a person to blindly rely on an agent's oral
representations or silence to the exclusion of
written disclosures in a policy."
1061535
20
When reviewing a plaintiff's actions pursuant to the
reasonable-reliance
standard,
this
Court
has
consistently
held
that a plaintiff who is capable of reading documents, but who
does not read them or investigate facts that should provoke
inquiry, has not reasonably relied upon a defendant's oral
representations that contradict the written terms in the
documents. In Traylor v. Bell, 518 So. 2d 719 (Ala. 1987), a
case decided under the reasonable-reliance standard before
Hickox, the plaintiff alleged that an automobile dealership
had represented to him that it would sell him an automobile
for a certain price but that the actual sales price was
higher. The plaintiff signed the sales documents reflecting
the higher price. He stated that he did not read the sales
documents because he had only a fourth-grade education and was
a poor reader and because he had poor eyesight that could not
be corrected by glasses. However, he did not disclose those
conditions to the dealership. This Court affirmed the trial
court's summary judgment in favor of the defendants, stating:
"If, indeed, in the final sales price charged to
plaintiff there was a difference from what he
understood it to be, that difference would have been
easily discovered by even a casual reference by him
to the sales price clearly indicated on the sales
document which he signed. The fact that he did not
1061535
21
make such a reference discloses an absence of that
ordinary care which, had it been exercised, would
have led to the discovery of any such difference,
and the failure to exercise which renders his
reliance unreasonable. The element of reasonable
reliance being absent from the evidence, the trial
court did not err in granting summary judgment."
518 So. 2d at 720-21.
In Alfa Life Insurance Corp. v. Green, 881 So. 2d 987,
992-93 (Ala. 2003), decided after this Court had readopted the
reasonable-reliance standard in Foremost, the plaintiffs
alleged that an insurance agent had represented to them that
they would be required to make only nine annual premium
payments for a life-insurance policy. The insurance company
presented evidence indicating that the plaintiffs had been
provided with a two-column premium schedule, one column
showing the number of premiums they would have to pay if
interest rates remained the same as the rates were when they
purchased the policy, and one showing that premiums would be
required for more than nine years if interest rates changed.
One of the plaintiffs had an eleventh-grade education and had
owned a tire business for 20 years and a hay business for 10
years; the other was a high-school graduate and had worked as
a bookkeeper for 20 years. Both were 47 years old when they
1061535
22
purchased the policy at issue; both could read and write.
This Court held that the insurance company was entitled to a
JML because the plaintiffs had not shown that they had
reasonably relied on the alleged misrepresentations of the
insurance agent.
In Ingram, 887 So. 2d at 229, the plaintiff alleged that
the insurance company had guaranteed that his policy would be
"paid up" in 10 years and that he would not need to make
additional payments beyond 10 years. The plaintiff had access
to tables indicating cash values and insurance rates
applicable to the policy he intended to purchase that
contradicted what he alleged an agent had represented to him
and that should have put the plaintiff on notice of the
agent's alleged misrepresentations. The plaintiff had the
equivalent of a seventh-grade education, could read and write,
was 52 years old when he purchased the policy, and had owned
numerous insurance policies over the course of approximately
37 years. The Court held that the plaintiff had not presented
substantial evidence indicating that he reasonably relied on
what he was told by the agent regarding the number of premium
1061535
23
payments required, and it reversed the trial court's order
denying the insurance company's motion for a JML.
In Baker v. Metropolitan Life Insurance Co., 907 So. 2d
419, 422-23 (Ala. 2005), the plaintiff alleged that in selling
him a policy, an insurance agent represented that after he had
paid premiums for 11 years, the policy would become self-
sustaining, and he would not have to pay any additional
premiums. The insurance company presented evidence indicating
that the plaintiff was presented with a premium schedule
indicating that premiums were payable for 73 years, as well as
a document describing choices available for paying premiums
after 11 years so long as policy dividends were sufficient to
support the alternative choices. The plaintiff was 27 years
old when he applied for the policy, a high-school graduate,
could read and write, and owned his own railroad-construction
company. We held that in light of the information contained
in the documents surrounding the transaction, the plaintiff
had not produced substantial evidence indicating that his
reliance on the agent's alleged misrepresentation, if any,
was reasonable. We therefore affirmed the summary judgment in
favor of the insurance company and agent.
1061535
24
This Court has recognized one exception to the general
rule that a plaintiff's reliance on the representations of a
defendant is unreasonable when the plaintiff was in possession
of documents the plaintiff could have read that were
inconsistent with the statements on which the plaintiff
alleges he relied. In Potter v. First Real Estate Co., 844
So. 2d 540 (Ala. 2002), the plaintiffs' real-estate agent told
them that she represented them as buyers as much as she
represented the sellers of the property the plaintiffs were
purchasing. Nevertheless, when she was asked whether the
property being purchased was in a flood plain, the agent
stated that it was not, showing the plaintiffs an almost
illegible survey. The sales contract stated that the property
was not in a flood plain. At the closing, the plaintiffs were
provided with another copy of the survey, and the agent again
assured them that the property was not in a flood plain,
contrary to what appeared in a document presented at closing.
Under those circumstances, we concluded that there was
evidence of a special relationship between the plaintiffs and
their acknowledged real-estate agent, together with evidence
indicating that the agent had employed an artifice at the
1061535
25
closing that lulled the plaintiffs into a false sense of
security as to the contents of a document the plaintiffs were
unable to read. We reversed the summary judgment in favor of
the real-estate agent and her company. The exception to the
rule discussed in Potter does not apply in this case, however,
because Smith and Jeffrey do not have the kind of special
relationship that was present between the plaintiffs and the
defendant in Potter. Had Jeffrey been the minister and Smith
the congregant, a different situation might exist, but that
case is not presented here.
Chief Justice Cobb's conclusion in her dissenting opinion
that a confidential relationship exists between an insurance
sales agent and the purchaser of insurance stemming from a
preexisting relationship of congregant and minister is
problematic in that it stands the typical role of a minister
as the dominant figure giving spiritual advice on its head by
making the congregant the dominant party in a discussion of
secular affairs unrelated to spiritual concerns. Moreover,
even assuming a confidential relationship existed between
Jeffrey and Smith, the dissenting opinion misses the mark for
a separate reason.
1061535
26
It is undisputed in this case that Jeffrey made no
additional oral representations when the policy was delivered,
unlike Potter, where the agent made additional representations
at the closing. Chief Justice Cobb, in her dissenting
opinion, states that the absence of misrepresentations at the
time of delivery of the policy does not distinguish this case
from Potter. The dissenting opinion concludes: "If the
majority is of the opinion that Potter should not be the law,
then instead of attempting to distinguish this case from
Potter, it should overrule Potter." ___ So. 2d at ___. This
Court's insistence upon conformity with a critical fact
present in Potter and absent in this case to qualify for the
exception recognized in Potter is by no means a retreat from
Potter. Our opinion in Potter repeatedly emphasized the
significance of the fact that misrepresentations were made at
the time the documents were delivered. We stated:
"In our willingness to eliminate [the justifiable-
reliance] standard that recognized a jury question
whenever a plaintiff simply failed to read the
agreement,
we
must
avoid
embracing
a
rule,
inconsistent with our settled precedent, that would
tolerate
abuse
of
special
relationships,
particularly involving artifices to deceive as to
the content of documents when presented at the time
the agreement is memorialized."
1061535
27
844 So. 2d at 550 (emphasis added). We further stated:
"Under
these
circumstances,
applying
the
standard in [Southern Building & Loan Ass'n v.]
Dinsmore, [225 Ala. 550, 144 So. 21 (1932),] as
amplified in Holman [v. Joe Steele Realty, Inc., 485
So. 2d 1142 (Ala. 1986)], we conclude that there is
evidence of a special relationship between the
Potters and Borden, evidence indicating that Joseph
was unable to read an earlier version of a document
that was presented again at the closing in a legible
condition, evidence of renewed assurances that the
document presented at the closing was consistent
with the previous document described by Joseph as
almost illegible. Suffice it to say that the
conclusion reached in Holman, 485 So. 2d at 1144
('there is no evidence of any misrepresentation of
the content of the agreement or the employment of
trick or artifice that would lull the Holmans into
a false sense of security') does not apply to these
facts. Here there is sufficient evidence to warrant
a determination by the jury that there was a
'misrepresentation of the content of the agreement
or the employment of trick or artifice' at the time
of the closing that lulled the Potters into a 'false
sense of security.'"
844 So. 2d at 551-52 (emphasis added). Based on the
foregoing, it cannot be said that today's insistence on
contemporaneous misrepresentations is a post hoc contrivance
to limit the true holding in Potter. Indeed, if we were to
accept the immateriality of silence at delivery, as the
dissenting opinion contends, we would dramatically expand
Potter and thereby revert to a post-Hickox/pre-Foremost
standard of reliance.
1061535
28
The foregoing recognition of the significance of more
than mere silence at delivery is not incompatible with the
insureds' view. In their brief the insureds demonstrated
their awareness of Potter by citing it solely for an unrelated
proposition of law dealing with standing to sue. Further,
during oral argument in this case, the insureds' attorney was
questioned concerning the applicability of Potter to the facts
presented by this case. The Justice posing the question
described the facts in Potter as "a situation where at the
closing of a real estate transaction, there were conversations
about what those documents showed" and then asked, "That
doesn't appear to apply?" The insureds' attorney replied,
"That doesn't appear." In light of the foregoing, we simply
cannot affirm the trial court's judgment for the insureds
based on Potter.
AmerUs argues that the insureds' reliance on Jeffrey's
alleged misrepresentations was not reasonable. Smith is a
high-school graduate and was 53 years old at the time he
purchased the policies. He had considerable business acumen,
being a skilled businessman who had participated in million-
dollar negotiations with banks and in acquisitions of
1061535
29
companies, who had dealt with insurance agents in purchasing
numerous life-insurance policies, and who had previously
brought an action alleging fraudulent misrepresentations on
the part of an insurance agent concerning a different policy.
Smith presented no evidence indicating that he could not read
the policies. Rather, he testified that he did not read them:
"Q. [By counsel for AmerUs:] So you had sued one
insurance agent in 1984 who you trusted?
"A. Yes, sir.
"Q. And now you're telling us you didn't question at
all the allegations of what Mr. Jeffrey told you?
"A. Not at all. No, sir.
"Q. Not at all. Even in light of you -- Even having
done that and having sued an insurance agent, you
didn't feel any need to look at these other
documents?
"A. No, sir.
"Q. At all, did you?
"A. No, sir.
"Q. Do you take any responsibility for not looking
at the other documents that Central Life sent to you
at all, Mr. Smith?
"....
"A. No, sir.
1061535
30
"Q. You take no responsibility for not having looked
at those documents, even though you had previously
had a bad experience with an agent you trusted with
another company that you had to sue; is that right?
"A. It's a whole different arrangement, but you're
correct in what you're saying."
AmerUs also argues that Smith could have reviewed, but
did not review, the policies during the 20-day "free look"
period provided for in the policies. In Ex parte Caver, 742
So. 2d at 173, we concluded that if an insurance policy
provides the insured an opportunity to examine it and to
cancel it for a full premium refund if the insured does not
agree with the provisions of the policy, and if the insured
presents no evidence indicating that he or she could not have
read and understood those provisions, then the insurer does
not have an affirmative duty to orally inform the insured of
the provisions of the policy. Both AmerUs policies had "free
look" provisions. However, Smith testified that he reviewed
only the declarations page of each policy.
"Q. [By counsel for the insureds:] When Mr. Jeffrey
brought the policy to you, Bob, did he give you any
documents and say, 'Bob, I need you to look at these
papers because we're not able to do what we thought
we were going to be able to do; we've had to do a
different plan?' Did he ever say that or show you
any papers that indicated that to you?
1061535
31
"A.
Never.
"Q. Now, there's been some questions about the
policy. Did you read every line of the policy?
"A. No, sir.
"Q. What did you look at on the policy when he
delivered it to you?
"A. I looked at the front page or the second,
whatever the -- wherever the terms are.
"Q. When you looked at it, what did it show you?
"A. It showed me the amount of the policy was,
indeed, what we had talked about. The premium was
also what we talked about, and it was for a term of
42 years."
Each policy insuring Smith's life stated on the first
page that it was issued pursuant to a "C Rating Class." After
the provision giving the insured 20 days in which to examine
the policy, the initial page stated that the policy was a
"FLEXIBLE PREMIUM ADJUSTABLE LIFE POLICY" and then stated:
"The insurance benefits are payable when the insured
dies.
"Insurance benefits are adjustable.
"Flexible premiums are payable to the Company for a
specified period.
"Annual dividends."
The schedule of benefits and premiums on the following page
again indicated that the rating class of the policy was a "C"
and that it was a "flexible premium adjustable life" plan.
1061535
Although the schedule of benefits and premiums for the
4
large policy states that the minimum monthly premium is
$2,845, we note that 12 monthly payments of $2,845 equals
$34,140. Twelve monthly payments of $3,570, the amount stated
as the initial premium, equals $42,840--the stated planned
premium. There is no explanation in the record for that
discrepancy.
32
For the small policy, the schedule listed the amount of the
benefit as $500,000 with an annual planned premium of
$5,739.96, an initial premium of $478.33, a minimum monthly
premium of $478.33, and a payment period of 42 years. For the
large policy, the schedule listed the amount of the benefit as
$3,000,000 with an annual planned premium of $42,840, an
initial premium of $3,570, a minimum monthly premium of
"$2,845," and a payment period of 42 years. Immediately
4
below that information on both policies was the statement that
the policy might end before the insured reached age 95 "if
subsequent premiums are not sufficient to continue this policy
in force until that time." Each policy referred to the term
"planned premium" as follows:
"Planned premium payments can be made during the
Insured's life and before the end of the payment
period. Planned premiums can be scheduled for
payment
annually,
semi-annually,
quarterly,
or
monthly. We can limit the amount of any change in
the planned premium."
Each policy defined the "cost of insurance rate" as follows:
1061535
33
"The monthly rate is based on the Insured's sex,
attained age and risk class as determined by us for
the initial face amount and each increase in face
amount. The risk class with the most recent
effective date will apply .... We can change the
rates from time to time. The rates are determined
by us according to expectations of future mortality,
interest, persistency and expenses. ..."
Although Smith stated that he did not understand the
language of the policies, he made it clear that it was not his
practice to review an insurance policy after it was delivered
to him. When asked to compare the language in the Central
Life policies to the language in the Principal Mutual policy
Smith had owned previously and had canceled when he purchased
the Central Life policies, Smith testified:
"Q. [By counsel for AmerUs:] I want you to look at
the face of this [Principal Mutual] policy. And
where it says 'modified premium whole life policy,'
if you would enlarge that, please. This type of
policy tells you that the death benefit is stable at
the death of insured, premiums payable for the
period shown on page three, premiums increase for
the first five policy years. And what does it say
after that?
"A.
'And remain level thereafter.'
"Q. That language 'remain level' is nowhere in the
Central Life policy, is it?
"A. If it is, I don't know. I haven't seen it.
"Q. But by having this policy, you knew that
insurance policies were issued with the words
1061535
34
'premiums remain level' after a certain time, didn't
you?
"A. Sir, I have never read an insurance policy. I
don't know the answer to that question.
"Q. And you are telling these people that you have
no responsibility whatsoever, even though you have
never read an insurance policy?
"A. I do have some responsibility, and it was a
mistake when I let Eddie Jeffrey represent me.
That's my responsibility."
When the insured's counsel produced the large policy and
the small policy to AmerUs's counsel in response to a
discovery request, they also produced a document entitled
"Statement of Policy Cost Benefit Information." The cost-
benefit statement is dated May 20, 1987, the day after the
large policy was issued. It bears a number stamped with a
Bates numbering machine indicating that it came from the
insureds' counsel, and the number immediately follows the last
stamped page number of the insurance policies. Smith denied
having ever seen the cost-benefit statement, although he
acknowledged that it had been produced by his lawyers together
with the policies. A representative of AmerUs testified that
it was standard company practice for the agent to deliver the
cost-benefit statement at the time a policy was delivered.
1061535
Because the insureds' receipt of the cost-benefit
5
statement cannot be disputed, we are not here required to deal
with cases regarding the sufficiency of proof of mailing that
creates a presumption of receipt, such as Sisson v. State Farm
Fire & Casualty Co., 824 So. 2d 708 (Ala. 2001), or Birmingham
News Co. v. Moseley, 225 Ala. 45, 141 So. 689 (1932).
35
Smith does not contend that he did not receive the cost-
benefit statement; indeed, he cannot so argue because the
document was produced from his files. Moreover, the insureds
5
do not argue that whether Smith received the cost-benefit
statement should have been a jury question.
The cost-benefit statement advised that the illustrated
values might change with variations in interest rates, cost-
of-insurance rates, and the frequency, timing, and amount of
premium payments. The statement projected end-of-year policy
values only to age 65 and contained the following cautionary
statement warning that the policies would lapse before Smith
reached age 95: "BASED ON GUARANTEED ASSUMPTIONS, THIS POLICY
WILL LAPSE IN THE 6TH YEAR UNLESS A HIGHER PREMIUM IS PAID."
(Capitalization original.) Smith's testimony that he did not
see the cost-benefit statement must be considered in
conjunction with his testimony that he had never read an
insurance policy and that when he received the Central Life
policies, his review consisted only of a cursory review of the
1061535
36
declarations page. Smith's testimony when asked about the
cost-benefit statement confirms his reliance on Jeffrey's oral
representations
despite
contradictory
language
in
the
documents that were available to Smith:
"Q. [By counsel for AmerUs:] When you got this
document and saw the guarantee was for five years
only, did you think that you had been defrauded?
"A. When I got the document, if I got it--I don't
remember ever getting it, but it's the day after the
policy was issued.
"Q. Right.
"A. If that had caused me any concern, I wouldn't
have gone through with the policy, Mr. Dauphin
[counsel for AmerUs]. I had a perfectly good
policy. It was fixed premiums. I'm not a fool,
sir. You think I'm going to take something that I
think is guaranteed for five years?
"Q. I think you didn't look at it. Did you look at
it?
"A. What's wrong with trusting a man? ... I
trusted Eddie Jeffrey. He said his policy was
better."
Smith acknowledged that if he had read the cost-benefit
statement, he would have seen that it contradicted what
Jeffrey had told him.
The insureds argue that the only evidence AmerUs provides
in support of its argument that Smith's reliance on Jeffrey's
1061535
37
representations was unreasonable "is the written words on the
policies themselves." The insureds' brief at 59. The
insureds rely on the declarations page of each policy, which
they contend conforms to what Jeffrey represented to Smith.
For the large policy, the declarations page on the policy
Smith received in 1987 lists a coverage amount of $3,000,000,
a planned premium of $42,840, and a payment period of 42
years. For the small policy, the declarations page lists a
coverage amount of $500,000, a planned premium of $5,739.96,
and a payment period of 42 years. Smith testified that when
Jeffrey delivered the large policy, Smith looked at the policy
and "[i]t showed me the amount of the policy was, indeed, what
we had talked about. The premium was also what we talked
about, and it was for a term of 42 years. ... I understood
there was a plan, if the premium was paid, that premium was
paid every year up to 42 years. And that's what I was told by
Mr. Jeffrey." Smith testified that he did not see anything
that would have told him that the policy was going to
terminate before 42 years even if he paid the premiums in the
amount reflected on the declarations page. Smith testified
similarly about the small policy. Smith also testified that
1061535
38
Jeffrey never alerted him to any potential problems with the
policies and that he did not see anything when he looked at
the policies to indicate that his policies would end before
the expiration of 42 years.
"Q. [By counsel for the insureds:] When Mr. Jeffrey
brought the policy to you, Bob, did he give you any
documents and say, 'Bob, I need you to look at these
papers because we're not able to do what we thought
we were going to be able to do; we've had to do a
different plan?' Did he ever say that or show you
any papers that indicated that to you?
"A. Never.
"....
"Q. Do you see anything on here, Bob, based on your
station in life and your education and your
training, do you see anything here that would tell
you that the policy is going to stop sometime before
42 years, even if you paid the $42,840 a year?
"A. No, sir, I didn't."
The insureds argue that in determining whether Smith's
reliance
on
Jeffrey's
alleged
misrepresentations
was
reasonable, this Court should consider Brooks's testimony that
the Central Life policies were not readily understood by
laymen. Brooks was asked: "If you read that policy, every
single page of it, and read it line by line, is there anything
in that policy that you have found that would tell the
1061535
39
policyholder that what is represented on a schedule of
benefits at the beginning is untrue?" Brooks answered: "No."
When asked whether he felt "that there was a lot of
information at this point in time involving these types of
policies that was misleading," Brooks stated that he thought
"there were things in the wording and the way things were laid
out that allowed the individual to come up with the wrong
assumption." Brooks did not elaborate, however, on what
"things" in the policies might allow an insured to draw
inaccurate conclusions about the provisions of the policies.
Brooks also stated that he thought most clients relied on
their agents to interpret information from the company and
that he felt that policyholders and customers had a right to
believe what their agents told them.
The insureds argue that "AmerUs offered no testimony of
its witnesses or any other evidence to show that, in light of
the way the policy was written and the representations [that]
were
made
by
Mr.
Jeffrey,
Mr.
Smith's
reliance
was
unreasonable." The insureds' brief at 63. Under Foremost,
they say, the reasonableness of one's reliance is what is
reasonable under the facts or circumstances of the case. In
1061535
40
this case, the insureds conclude, the jury heard both sides
and obviously chose to believe that Smith's reliance was
reasonable.
What the jury chose to believe is irrelevant here,
however, because the trial court erred in submitting the case
to the jury for decision. In light of the language of the
documents surrounding the insureds' purchase of the life-
insurance policies at issue in this case and the conflict
between
Jeffrey's
alleged
misrepresentations
and
the
documents
presented to Smith, it cannot be said that Smith reasonably
relied on Jeffrey's representations. As this Court stated in
Torres: "[T]he right of reliance comes with a concomitant
duty on the part of the plaintiffs to exercise some measure of
precaution to safeguard their interests." 438 So. 2d at 759.
The insureds here took no precautions to safeguard their
interests. If nothing else, the language in the policies and
the cost-benefit statement should have provoked inquiry or a
simple investigation of the facts by Smith. Instead, based
upon the record before us, we must conclude that Smith
"blindly trust[ed]" Jeffrey and "close[d] [his] eyes where
ordinary diligence require[d] [him] to see." Munroe v.
1061535
41
Pritchett, 16 Ala. 785, 789 (1849). Moreover, the testimony
of Brooks that "there were things in the wording [of the
policies] and the way things were laid out that allowed the
individual to come up with the wrong assumption" does not
resolve the issue whether, as a matter of law, a reasonable
person, upon reading the entire policy and the cost-benefit
statement, would be put on inquiry as to the consistency of
those documents with the previous representations by Jeffrey.
Of course, if so, that person is then charged with knowledge
of all of the information that the inquiry would have
produced. Redman v. Federal Home Mortgage Corp., 765 So. 2d
630, 634-35 (Ala. 1999); Baxter v. Ft. Payne Co., 182 Ala.
249, 252-53, 62 So. 42, 43 (1913). We conclude that no
reasonable person could read the policies and the cost-benefit
statement and not be put on inquiry as to the existence of
inconsistencies,
thereby
making
reliance
on
Jeffrey's
representations unreasonable as a matter of law. Because the
insureds failed to present substantial evidence indicating
that Smith's reliance on Jeffrey's representations was
reasonable, AmerUs is entitled to a JML.
1061535
Justice Murdock's special writing concurring in the
6
result offers the tempting simplicity of resolving this appeal
on the basis of the statute of limitations. Deciding the case
on
the
basis
that
Smith's
reliance
on
Jeffrey's
representations was not reasonable eliminates the necessity of
reaching complex questions as to the interest-sensitive nature
of this policy and potentially the continuing validity of
Williamson v. Indianapolis Life Insurance Co., 741 So. 2d 1057
(Ala. 1999), and its progeny, questions that are crucial to
the conclusion reached by Justice Murdock.
Although Justice Parker did not sit for oral argument of
7
this case, he has viewed the video recording of that oral
argument.
42
IV. Conclusion
We reverse the trial court's judgment for the insureds
and render a judgment as a matter of law in favor of AmerUs.
We therefore pretermit consideration of any other issues
argued by AmerUs on appeal.6
REVERSED AND JUDGMENT RENDERED.
See, Stuart, Smith, Bolin, and Parker, JJ., concur.
7
Murdock, J., concurs in the result.
Cobb, C.J., dissents.
Woodall, J., recuses himself.
1061535
43
MURDOCK, Justice (concurring in the result).
In its brief to this Court, AmerUs argues that the
insureds' fraud claims were subject to a two-year statute of
limitations, see Ala. Code 1975, § 6-2-38(1), and that this
limitations period commences when the plaintiff discovers the
fraud or when facts are known that would "'put a reasonable
mind on notice that facts to support a claim of fraud might be
discovered upon inquiry.'" Auto-Owners Ins. Co. v. Abston,
822 So. 2d 1187, 1195 (Ala. 2001) (quoting Jefferson County
Truck Growers Ass'n v. Tanner, 341 So. 2d 485, 488 (Ala.
1977)). AmerUs argues that, at the latest, the insureds
discovered or were put on notice of the alleged fraud in 1991
when Smith was told by its agent, George Brooks, that the
representation by the previous agent, Eddie Jeffrey, that the
policy premiums would remain level for 42 years was simply not
true. I agree, and I concur in the result on that basis. I
would not reach the other issues raised by AmerUs on appeal.
1061535
44
COBB, Chief Justice (dissenting).
I respectfully dissent.
Before it decided Hickox v. Stover, 551 So. 2d 259 (Ala.
1989), in which it adopted the justifiable-reliance standard,
this Court had applied a reasonable-reliance standard in
regard to a fraud claim. However, several exceptions existed
at that time to the reasonable-reliance standard. For
example, an illiterate party to a contract could allege fraud
and overcome the other party's reliance on the terms of a
written contract. Paysant v. Ware, 1 Ala. 160 (1840).
Another exception existed based on the relationship between
the parties. In Southern Building & Loan Ass'n v. Dinsmore,
225 Ala. 550, 144 So. 21 (1932), a case involving the sale of
stock, this Court held: "But plaintiff did not read the
certificate and there is no evidence he had any actual
knowledge of its contents, and his proof tends to show that he
was lulled into a feeling of security and into any neglect to
read the same by the misrepresentations of the agent. Under
these circumstances the law imputes to him no knowledge of its
contents." 225 Ala. at 552, 144 So. at 23. This exception
1061535
45
was more fully articulated by this Court in Holman v. Joe
Steele Realty, Inc., 485 So. 2d 1142, 1144 (Ala. 1986):
"The instant case does not come within the rule
of Southern Building & Loan Ass'n v. Dinsmore, 225
Ala. 550, 144 So. 21 (1932), that the law imputes no
knowledge of a contract's contents to a party who
signs the contract without having read or having
knowledge of its contents, if that party is lulled
into
a
feeling
of
security
because
of
a
misrepresentation of the contents of the contract
and because of special circumstances, relationships,
or
disability
of
the
party
relating
to
the
contract's execution. See also Arkel Land Co. v.
Cagle, 445 So. 2d 858 (Ala. 1983); Rose v. Lewis,
157 Ala. 521, 48 So. 105 (1908). There is no
evidence that the Holmans did not read or were
incapable of understanding the import of the
contract provision. There is no evidence of any
special relationship between the Holmans or Clokey
or any special circumstance or disability of the
Holmans that would negate a finding that they knew
of the contract provision. Moreover, there is no
evidence of any misrepresentation of the content of
the agreement or the employment of trick or artifice
that would lull the Holmans into a false sense of
security."
When it decided Hickox v. Stover, supra, in 1989, this
Court departed from its longstanding jurisprudence regarding
reasonable
reliance
and
adopted
a
justifiable-reliance
standard for fraud claims. However, in 1997, with Foremost
Insurance Co. v. Parham, 693 So. 2d 409 (Ala. 1997), this
Court discarded the justifiable-reliance standard and once
again adopted the reasonable-reliance standard that had for so
1061535
46
long governed fraud claims in Alabama. Foremost, however,
left unanswered the question whether in readopting the
reasonable-reliance standard this Court had readopted all the
caselaw regarding the reasonable-reliance standard, including
the exceptions to the application of the standard recognized
by this Court before Hickox. In Potter v. First Real Estate
Co., 844 So. 2d 540 (Ala. 2002), this Court determined that
the exceptions to the reasonable-reliance standard had
survived
the
justifiable-reliance
era
in
Alabama
jurisprudence.
Potter concerned a young engaged couple who had located
a house they wanted to purchase and had contracted with the
listing agent to represent them, the buyers, as well as the
seller. The agency contract stated, in pertinent part:
"'Seller, Buyer, and Broker understand that
Limited Consensual Dual Agency can create conflicts
of interest. Therefore, Broker will not represent
the interests of one party to the exclusion or
detriment of the interest of the other party.
Seller and Buyer, hereby acknowledge that Broker's
relationship with them is not one of a fiduciary,
and they waive all claims which they have now or
which may arise in the future in connection with
conflict of interest and/or limited consensual dual
agency.
"'The parties understand that because Broker
represents both parties, Broker must endeavor to be
1061535
47
impartial as between Seller and Buyer. Except as
expressly provided below, Broker in its capacity as
Limited Consensual Dual Agency, will disclose to
both Seller and Buyer all facts and information
which Broker believes are material and which might
affect Seller's or Buyer's decisions with respect to
this transaction, whether or not the facts or
information would be confidential except for the
limited consensual dual agency.'"
844 So. 2d at 543. One of the buyers asked the agent if the
house was located in a floodplain, and the agent responded by
showing the buyer an "almost illegible" survey and told him
that the survey showed that the house was not located in a
floodplain. The agent had the buyers execute a contract for
the sale of the house that stated: "'THE PROPERTY ... ___ IS
X IS NOT LOCATED IN A FLOOD PLAIN ....'" 842 So. 2d at 544.
At the closing, the buyers were given a copy of the survey of
the property, which contained in small print the following
statement: "'[T]he property described herein (is) (is not)
located in a special flood area.'" A slightly diagonal
handwritten line was drawn through the words "is not."
Thirty-two months after the closing the house flooded, and the
buyers sued, alleging fraud.
The
trial
court,
applying
the
reasonable-reliance
standard, entered a summary judgment in favor of the real-
1061535
48
estate agent, reasoning that the buyers' claims were time-
barred because the buyers knew or should have known at the
time of the closing that the house was located in a flood-
plain. This Court reversed the summary judgment, concluding,
based on Dinsmore and Holman, that a special relationship
existed between the buyers and the agent and that, thus, the
buyers could not be deemed to have reasonably relied on the
documents
given
to
them
at
closing
in
view
of
the
representations made by the agent.
I respectfully disagree with my colleagues' rationale
that a special relationship may exist between a home buyer and
a real-estate agent but that no similar relationship could
exist between a pastor and a congregant. In its opinion, the
majority states:
"The exception to the rule discussed in Potter does
not apply in this case, however, because Smith and
Jeffrey do not have the kind of relationship that
was present between the plaintiffs and the defendant
in Potter. Had Jeffrey been the minister and Smith
the congregant, a different situation might exist,
but that case is not presented here."
___ So. 2d at ___. The relationship in Potter appears to have
been purely contractual; nothing in that opinion indicates
that the buyers and the agent had any personal interaction
1061535
49
before the buyers saw the agent's name on the "for sale" sign
in front of the house they wanted to buy and telephoned the
agent. The facts in this case, however, show that a personal
relationship existed between Smith and Jeffrey before the
purchase of the life insurance policies arising out of their
relationship as a pastor and a congregant. Smith testified as
follows:
"[SMITH'S ATTORNEY]: Bob, I want to start sort
of the next subject matter with you here, as to how
you first knew Mr. Jeffrey, Eddie Jeffrey. Can you
tell the jury about that?
"[SMITH]: Eddie and his family were members of
Parkway Christian Fellowship. They might have even
been members of Huffman Assembly, which later
changed its name to Beacon of The Cross. My
recollection is they were members of the Huffman
Assembly also, but he was -- they were members of
the Parkway Christian Church the 10 years that I was
the pastor.
"[SMITH'S ATTORNEY]: So they were actually
regular members, attending members?
"[SMITH]: They were regular members. His wife,
a beautiful voice, she was a soloist in the choir.
Two kids that, as I remember, I dedicated both of
them when they were infants. So they were members of
the church, very active in the church, yes, sir.
"[SMITH'S ATTORNEY]: Before you actually had
some dealings with him on a business point of view
or from a business point of view, did you ever know
anything about him that made you be cautious about
1061535
50
what he did or what he might say? Did you ever have
any concern that he was anything less than honest?
"[SMITH]: No. It was quite the contrary."
Save immediate family, many people of faith are closer to
their pastors than to any other individuals. A minister of
the gospel baptizes an individual, guides a new believer as he
or she makes a profession of faith, performs a congregant's
wedding and counsels the betrothed as they prepare for their
wedding, and performs a congregant's funeral and comforts the
bereaved family. A congregant often shares his or her life
troubles with the pastor and seeks the pastor's guidance. So
intimate is the relationship between a congregant and a member
of the clergy that this Court has seen fit to promulgate an
evidentiary rule that makes communications between a member of
the clergy in his professional capacity and another person a
privileged communication. Rule 505, Ala. R. Evid. Neither is
the relationship between a minister of the gospel and his
congregant a one-way relationship. Such a relationship
requires trust and faith on part of both individuals.
Given the foregoing, I am unable to agree with my
colleagues that a special relationship could not exist between
Smith and Jeffrey. In Potter, the purchasers of the house had
1061535
51
no personal relationship with the real-estate agent before
purchasing the house. In fact, their first contact with the
agent was when the purchasers called the agent's telephone
number listed on the sign in front of the house they wanted to
buy. If a contractual relationship between a home buyer and
a real-estate agent that is not preceded with any personal
relationship can be of such nature that a buyer is "lulled
into a feeling of security because of a misrepresentation of
the contents of the contract and because of special
circumstances [or] relationships," Holman, 485 So. 2d at 1144,
then it seems equally, or more, likely that a pastor could be
"lulled into a feeling of security" by his congregant, whom he
has befriended and spiritually shepherded for many years.
I also respectfully disagree with the majority that the
fact that Jeffrey made no additional oral representations at
the time the policy was delivered to Smith distinguishes this
matter from Potter. The record indicates that Jeffrey showed
Smith only one illustration regarding the performance of the
life-insurance policy during the sale of the policy. That
illustration indicated that the policy would be in effect
until Smith was 95 years old and that the premium would remain
1061535
52
constant. When Jeffrey delivered the policy to Smith, he did
not inform Smith that the policy had been rated on a different
rating schedule or that the policy would require larger
premiums in order to remain in effect until Smith was 95.
AmerUs's own agent, George Brooks, testified that at the time
the policy was issued that he felt "that Central Life [AmerUs'
predecessor] did specific things that allowed the –- where a
lot of individuals had to rely upon interpretation from the
agent." Brooks also agreed that a lot of the information
provided in the policies was misleading because "there were
things in the wording and the way things were laid out that
allowed the individual to come up with the wrong assumption."
The misrepresentation made in this case is as egregious as the
misrepresentation made in Potter. I believe that, by his
silence
at
delivery,
Jeffrey
perpetuated
the
misrepresentation
he had made to Smith during the sale of the life-insurance
policies.
Accordingly, I conclude that the jury's verdict should be
upheld because a special relationship existed between Smith
and Jeffrey as pastor and congregant, thus invoking an
exception to the reasonable-reliance standard. If the
1061535
53
majority is of the opinion that Potter should not be the law,
then instead of attempting to distinguish this case from
Potter, it should overrule Potter. Thus, I respectfully
dissent. | September 19, 2008 |
783ba2b3-39a7-4404-9638-8cb508a08076 | Kimberly Bond v. Adam Pylant et al. | N/A | 1060568 | Alabama | Alabama Supreme Court | REL:08/15/2008
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
____________________
1060568
____________________
Kimberly Bond
v.
Adam Pylant et al.
Appeal from Lee Circuit Court
(CV-06-399)
BOLIN, Justice.
Kimberly Bond appeals from the circuit court's order
dismissing
her
complaint
for
lack
of
subject-matter
jurisdiction. We affirm.
1060568
In a proceeding to probate an alleged lost or destroyed
1
will, the burden is on the proponent to establish: (1) the
existence of a will; (2) the loss or destruction of the will;
(3) the nonrevocation of the will by the testator; and (4) the
contents of the will in substance and effect. Barksdale v.
Pendergrass, 294 Ala. 526, 529, 319 So. 2d 267, 269 (1975).
2
Facts and Procedural History
Kenneth D. Pylant II died on September 5, 2005. When he
died, Kenneth was married to Kimberly Bond; he had four
children from a previous marriage, two of whom were minors.
Subsequently, James Sprayberry, as executor of Kenneth's
estate, filed a petition in the Lee County Probate Court
seeking to admit to probate a copy of Kenneth's will, which
Sprayberry alleged had been lost or destroyed. Apparently,
1
Sprayberry, who is an attorney, had a copy of an unexecuted
will he had prepared on Kenneth's behalf, which he asserted
was a copy of the will Kenneth executed. We assume that the
heirs at law were notified of the petition as required by §
43-8-164 through -166, Ala. Code 1975. On November 29, 2005,
the probate court held a hearing and that same day entered an
order admitting the copy of the lost will to probate.
On April 26, 2006, Bond filed in the probate court a
"Complaint contesting the Will." That same day, Bond also
filed in the probate court a motion to transfer the will
1060568
We note that Bond did not file a petition to remove the
2
administration of the estate from the probate court to the
circuit court pursuant to § 12-11-41, Ala. Code 1975, which
petition could have been filed in the circuit court at any
time before final settlement, after the will was admitted to
probate.
3
contest to the circuit court pursuant to § 43-8-198, Ala. Code
1975. On May 2, 2006, the probate court purported to transfer
the will contest to the circuit court by having someone take
the file to the circuit court clerk's office. A member of
the probate court's staff informed Bond's counsel that there
was no order of transfer. On May 30, 2006, the probate court
entered an order again purporting to transfer the will contest
to the circuit court.
2
On June 9, 2006, Bond filed a complaint in the circuit
court contesting the will. On June 16, 2006, Sprayberry, as
executor, along with Kenneth's two adult children, filed an
answer and moved to dismiss the complaint filed in the circuit
court on the ground that the circuit court lacked subject-
matter jurisdiction over the matter. On November 30, 2006,
the circuit court entered an order dismissing Bond's complaint
for lack of subject-matter jurisdiction because Bond failed to
file her will contest in the circuit court within six months
1060568
The probate courts of Mobile, Jefferson, and Shelby
3
Counties have concurrent jurisdiction with the circuit court
to try will contests after a will has been admitted to probate
based on local acts. See Act No. 974, Ala. Acts 1961, Act No.
4
after the will was admitted to probate as required by § 43-8-
199, Ala. Code 1975. Bond timely appealed.
Standard of Review
In Newman v. Savas, 878 So. 2d 1147 (Ala. 2003), this
Court set out the standard of review of a ruling on a motion
to dismiss for lack of subject-matter jurisdiction:
"A ruling on a motion to dismiss is reviewed
without a presumption of correctness. Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993). This
Court must accept the allegations of the complaint
as true. Creola Land Dev., Inc. v. Bentbrooke
Housing, L.L.C., 828 So. 2d 285, 288 (Ala. 2002).
Furthermore, in reviewing a ruling on a motion to
dismiss we will not consider whether the pleader
will ultimately prevail but whether the pleader may
possibly prevail. Nance, 622 So. 2d at 299."
878 So. 2d at 1148-49.
Discussion
"In Alabama, a will may be contested in two
ways: (1) under § 43-8-190, Ala. Code 1975, before
probate, the contest may be instituted in the
probate court or (2) under § 43-8-199, Ala. Code
1975, after probate and within six months thereof,
a contest may be instituted by filing a complaint in
the circuit court of the county in which the will
was probated."
Stevens v. Gary, 565 So. 2d 73, 74 (Ala. 1990).3
1060568
1144, Ala. Acts 1971, and Act No. 2003-123, Ala. Acts 2003,
respectively; see also Coleman v. Richardson, 421 So. 2d 113
(Ala. 1982)(addressing the concurrent jurisdiction of the
Mobile Circuit Court and the Mobile County Probate Court in
hearing a will contest after a will has been admitted to
probate).
5
In the present case, Bond did not contest the will before
it was admitted to probate. Section 43-8-198, Ala. Code 1975,
provides for the transfer of a will contest from the probate
court to the circuit court, but this section must be read in
conjunction with § 43-8-190, Ala. Code 1975. See Bardin v.
Jones, 371 So. 2d 23 (Ala. 1979)(addressing the transfer of a
will contest to the circuit court). Section 43-8-190 pertains
only to a will contest filed in the probate court "before the
probate thereof." (Emphasis added.) Other than as noted in
note 3, supra, the only provision for contesting a will after
its admission to probate, as is the case here, is § 43-8-199,
Ala. Code 1975, which states:
"Any person interested in any will who has not
contested the same under the provisions of this
article may, at any time within the six months after
the admission of such will to probate in this state,
contest the validity of the same by filing a
complaint in the circuit court in the county in
which such will was probated."
(Emphasis added.)
1060568
6
Bond filed a will contest in the probate court, after the
will had been admitted for probate, and moved the probate
court to transfer the will contest to the circuit court. Under
§ 43-8-190, Bond was precluded from filing the contest in the
probate court after the will had been admitted to probate, and
therefore there was no proper contest to transfer to the
circuit court pursuant to § 43-8-198. Although the probate
court physically transferred the file and subsequently entered
an order transferring the will contest to the circuit court,
these actions are not sufficient to invoke the circuit court's
jurisdiction
under
§
43-8-199.
"A
circuit
court's
jurisdiction over a will contest is statutory and limited."
Forrester v. Putnam, 409 So. 2d 773, 775 (Ala. 1981).
In Kelley v. English, 439 So. 2d 26 (Ala. 1983), the
decedent's children petitioned for the probate of his
purported will, which named them as executors. The probate
court admitted the will to probate. Subsequently, the
decedent's widow filed a will contest in the probate court,
along with a demand that the contest be transferred to circuit
court. The probate court entered a order transferring the
contest to the circuit court. The children filed a motion to
1060568
7
dismiss the will contest on the ground that § 43-1-70 (now §
43-8-190) authorized a contest before the probate of the will
and § 43-1-79 (now § 43-8-199) authorized a will contest by
filing a complaint in the circuit court within six months
after the admission of the will to probate, and that the
decedent's widow had taken neither action. The circuit court
granted the motion to dismiss. Subsequently, the widow filed
an amendment to the complaint contesting the will in the
circuit court. The children filed a motion to strike the
amendment because there was no valid complaint to which the
amendment could attach. The circuit court granted the motion;
the widow appealed. This Court held that the widow did not
properly file a contest in the circuit court so as to invoke
that court's jurisdiction under what is now § 43-8-199.
In order to timely contest the will after it was admitted
for probate, Bond had to file a will contest in the circuit
court within six months of the admission of the will to
probate. Bond's will contest filed in the probate court was
a nullity because it was filed after the will was admitted to
probate, and the probate court's order purporting to transfer
1060568
8
the file to the circuit court could not and did not confer
jurisdiction on the circuit court.
Conclusion
The judgment of the circuit court dismissing Bond's will
contest for lack of subject-matter jurisdiction is affirmed.
AFFIRMED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | August 15, 2008 |
86b6fb7e-6da8-420c-b275-029b7ff26138 | Ex parte Auburn University, Dr. Jay Gogue and Dr. Gaines Smith. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Brenda M. Allen et al. v. Auburn University et al.) | N/A | 1070174 | 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
_________________________
1070174
_________________________
Ex parte Auburn University, Dr. Jay Gogue, and Dr. Gaines
Smith
PETITION FOR WRIT OF MANDAMUS
(In re: Brenda M. Allen et al.
v.
Auburn University et al.)
(Lee Circuit Court, CV-06-69)
BOLIN, Justice.
1070174
While this case was pending below, Dr. Gogue was
1
substituted for Dr. Ed Richardson, the former president of
Auburn University. See Rule 25(d)(1), Ala. R. Civ. P.
2
Auburn University, its president Dr. Jay Gogue, and Dr.
1
Gaines Smith (hereinafter collectively referred to as "the
petitioners"), petition this Court for a writ of mandamus
directing the Lee Circuit Court to enter a summary judgment in
their favor based on sovereign immunity and State-agent
immunity as to the claims asserted against them by Brenda M.
Allen, Austin K. Hagan, Charles C. Mitchell, Jr., James L.
Novak, J. Walter Prevatt, Eugene H. Simpson III, and James O.
Donald
(hereinafter
collectively
referred
to
as
"the
plaintiffs"), all tenured professors employed by Auburn
University ("the University").
Facts and Procedural History
The plaintiffs are faculty members in both the College of
Agriculture and the School of Forestry and Wildlife Sciences.
Before the 1987-1988 academic year, the plaintiffs were
designated as federal Schedule A appointees employed by the
University-affiliated Alabama Cooperative Extension Systems
("ACES") as extension specialists. ACES delivers research
findings/information
of
the
various
land-grant
universities
to
1070174
3
Alabama's farmers. As Schedule A appointees, the plaintiffs
were
eligible
for
certain federal benefits, including
participation in the Federal Civil Service Retirement System.
During the 1987-1988 academic year, the University's Board of
Trustees approved a reorganization of the University's
administrative structure. As part of this reorganization, the
plaintiffs were merged into the College of Agriculture and the
School of Forestry and Wildlife Sciences as faculty members
and were given rank and tenure. Each plaintiff was given the
title "Extension Specialist & Professor" and was no longer
considered an ACES employee. However, the plaintiffs, as
Schedule A appointees, remained eligible for federal benefits,
including the participation in the Federal Civil Service
Retirement System.
Before 1997, faculty in the University's College of
Agriculture and School of Forestry and Wildlife Sciences were
hired
on
12-month
appointments.
Under
the
12-month
appointments, the faculty members worked for the University
year-round. Beginning in 1997, the University began hiring
faculty in the University's College of Agriculture and School
of Forestry and Wildlife Sciences on nine-month appointments.
1070174
4
The University also allowed faculty members who had been hired
before 1997 to convert from 12-month appointments to 9-month
appointments. Chapter 7, § B. 1., of the University's Faculty
Handbook provides:
"Faculty participation in programs and projects
administered or conducted by the University and
supported by extramural contracts, grants, or other
types of agreements shall be considered a part of
the
faculty
member's
responsibilities
to
the
University. During the time that a faculty member
is under contract to the University, be it on a
nine-month or a 12-month appointment, the individual
is
expected
to
fulfill
his
or
her
total
responsibilities. Therefore, if a faculty member is
participating in an extramural program or project
within the University, whether it is in his or her
own or a different department or division of the
University, an appropriate part of the faculty
member's salary shall be provided by the program or
project budget. Under these circumstances, no
increase in the faculty member's base compensation
shall be permitted."
The import of this policy is that a faculty member on a nine-
month appointment is free to supplement his or her salary by
pursuing other opportunities, such as research grants through
extramural funding, during the three months of the year that
he or she is not obligated to the University. A faculty
member on a 12-month appointment is obligated to the
University on a year-round basis and is unable to supplement
his or her base salaries through extramural funding because
1070174
5
participation in externally funded programs during the period
of the faculty member's appointment, whether it be 9 months or
12 months, is considered part of the faculty member's
responsibility to the University and a portion of that faculty
member's salary is already provided for by the externally
funded program.
When
a
faculty
member
converts
from
a
12-month
appointment to a 9-month appointment, that faculty member
agrees to a permanent reduction in his or her base salary to
approximately 91% of his or her 12-month salary. Faculty
members who were converting from 12-month appointments to 9-
month appointments were guaranteed by the University two
summer salaries at 25% of the 9-month base salary until
extramural funding could be obtained. Once the University had
met its commitment as to the summer salaries, it was the
faculty member's responsibility to obtain extramural funding
to supplement his or her nine-month base salary, and there was
no guarantee that the faculty member could obtain the
extramural funding.
Dr. Smith, the interim director of ACES during the
conversion, contacted
the United States Department
of
1070174
6
Agriculture ("the USDA") in June 2002, to inquire as to the
possibility of Schedule A appointees converting from 12-month
appointments to 9-month appointments. The USDA responded that
Schedule A appointees were not eligible for nine-month
appointments, stating that Schedule A appointees must be
"employed [by the University] under a permanent year round
arrangement with Extension functions being performed at least
50% of the time throughout the entire year."
Section 7220 of the Farm Security and Rural Investment
Act of 2002 terminated all Schedule A appointments on January
31, 2003. However, the plaintiffs, as former Schedule A
appointees, remained eligible for participation in the Federal
Civil Service Retirement System under the Farm Security and
Rural Investment Act if the plaintiffs remained employed by
the University on a permanent year-round basis with at least
50% of their employment time being devoted to extension
functions. ACES is required to certify annually to the USDA
that the former Schedule A appointees are meeting the USDA's
requirements in order to maintain their eligibility for the
Federal Civil Service Retirement. These former Schedule A
appointees were also permitted to begin participating in the
1070174
7
State of Alabama Retirement Systems at a rate of 50% of their
annual salaries. The vast majority of the University's
faculty, who are not former Schedule A appointees, are not
eligible to participate in the Federal Civil Service
Retirement System.
In April 2005, the plaintiffs expressed to Dr. Smith
their discontent with being denied the opportunity to
participate in the nine-month conversion process afforded the
other faculty members in their departments. The plaintiffs
had determined that their being denied the opportunity to
participate in the nine-month conversion process had resulted
in their annual compensation levels falling below those of
their colleagues who were not former Schedule A appointees,
who had been allowed to convert to nine-month appointments.
The plaintiffs requested an increase of 13.75% to 21.13% in
their base salary in order, they said, to create equity with
the
salaries
of
their
colleagues
who,
as
nine-month
appointees, were allowed to enhance their salaries through
extramural sources during the summer months.
Dr. Smith responded to the plaintiffs by letter in June
2005, expressly informing the plaintiffs that conversion from
1070174
8
12-month
appointments
to
nine-month
appointments
was
prohibited by the federal regulations of the USDA. Dr. Smith
also denied the plaintiffs' requested salary increases as
unjustified, explaining:
"There are two additional points to consider.
First, all faculty who have elected to convert their
salaries at 91% or less have opted to have their
base salary reduced permanently. While summer
salary, whether guaranteed or funded from funds
raised
by
the
faculty
member,
increases
compensation, it does not increase the base salary
for these individuals.
"Secondly, after summer funding commitments are
met, then the faculty member is responsible for
raising funds for additional compensation. There is
a risk for the individual that the funds will not be
available. By electing to shift to a nine-month
appointment, the individual has assumed the risk.
"Therefore, based on these points relating to
the conversions, the requested increase in base
salary for a continuing 12-month appointment would
place your benefits substantially above others in
the College. Further, the average salary of your
group making this request is 120% of the southern
region average for Extension specialists. Hence,
your requested salary adjustments are not approved."
Although Dr. Smith denied the plaintiffs' request to increase
their salaries, he did offer the plaintiffs the following
option:
"There is, however, another straightforward
process
for
removing
the
circumstances
that
disallows you to be on a nine-month appointment;
1070174
9
that is, your former Schedule A federal appointment
that requires a 12-month appointment can be ended
through retirement or job abolishment. As the
designated
administrator
responsible
for
the
management of federal Schedule A appointees, I have
the authority to abolish your current position
making you eligible to receive an immediate federal
retirement annuity and free to negotiate a nine-
month appointment as others in the College of
Agriculture have done.
"For
those
eligible,
the
same
can
be
accomplished through regular retirement.
"Let me know if there is any interest in either
of these options. We can initiate the process
immediately."
The plaintiffs rejected this option, apparently because they
did not want to forgo their federal benefits.
In sum, the plaintiffs, as former Schedule A appointees,
are prohibited by federal regulations from converting from 12-
month appointments to 9-month appointments; if they converted
to 9-month appointments, they would lose their eligibility to
participate in the Federal Civil Service Retirement System.
University policy prohibits the plaintiffs, as 12-month
appointees, from supplementing their base salaries through
participation in externally funded programs.
1070174
See note 1.
2
10
On January 31, 2006, the plaintiffs sued the University;
its president, Dr. Ed Richardson, in his official capacity;
2
and Dr. Smith, in both his official and individual capacities,
alleging against all the defendants a denial of their equal
protection as established by the Constitution of Alabama of
1901
and
age
discrimination
under
the
Alabama
Age
Discrimination in Employment Act, § 25-1-20 et seq., Ala. Code
1975. The petitioners answered the complaint on March 13,
2006, asserting, among other things, that they were immune
from suit based on the doctrine of sovereign immunity and
State-agent immunity and that the complaint failed to state a
claim upon which relief could be granted.
The plaintiffs amended their complaint on August 22,
2006, to assert a fraud claim against the University, the
president of the University (now Dr. Gogue), in his official
capacity, and Dr. Smith, in his official and individual
capacities. The plaintiffs also alleged that Dr. Smith had
acted beyond the scope of his authority in denying the
plaintiffs' request for increases in their base salaries. The
petitioners answered the amended complaint on November 8,
1070174
The plaintiffs' motion for a summary judgment and
3
supportive briefs have not been included in the materials
filed in opposition to the petitioner's petition for a writ of
mandamus.
11
2006, again asserting the doctrines of sovereign immunity and
State-agent immunity. The petitioners also asserted that the
amended complaint failed to state a claim upon which relief
could be granted.
Both sides moved the trial court for summary judgments
and filed briefs in support of their respective motions. On
3
September 14, 2007, the trial court entered an order denying
the summary-judgment motions and expressly determining: (1)
that the "issues involving sovereign immunity" would be
decided during the course of the trial and (2) that an issue
of fact existed as to whether Dr. Smith had acted beyond his
authority, which would have removed him from the protection of
State-agent immunity as to the plaintiffs' claims asserted
against him in his individual capacity. This petition
followed.
Standard of Review
This Court has stated:
"'While the general rule is that the denial of
a motion for summary judgment is not reviewable, the
exception is that the denial of a motion grounded on
1070174
12
a claim of immunity is reviewable by petition for
writ of mandamus. Ex parte Purvis, 689 So. 2d 794
(Ala. 1996)....
"'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).
"'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)). A writ of
mandamus is an extraordinary remedy available only when the
petitioner demonstrates: "'(1) a clear legal right to the
order sought; (2) an imperative duty upon the respondent to
1070174
13
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 Nall, 879 So. 2d 541,
543 (Ala. 2003) (quoting Ex parte BOC Group, Inc., 823 So. 2d
1270, 1272 (Ala. 2001)).
Discussion
The petitioners argue that the trial court erred in
choosing to address their sovereign-immunity defenses at trial
rather than addressing at the summary-judgment stage of the
litigation. "'One of the purposes of immunity, absolute or
qualified, is to spare a defendant not only unwarranted
liability, but unwarranted demands customarily imposed upon
those defending a long drawn out lawsuit.'" Ryan v. Hayes, 831
So. 2d 21, 31 (Ala. 2002) (quoting Siegert v. Gilley, 500 U.S.
226, 232 (1991)). Additionally, this Court has stated:
"'Where the defendant seeks qualified immunity, a
ruling on that issue should be made early in the
proceedings so that the costs and expenses of trial
are avoided where the defense is dispositive.
Qualified immunity is "an entitlement not to stand
trial or face the other burdens of litigation."
Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct.
2806, 86 L. Ed.2d 411 (1985). The privilege is "an
immunity from suit rather than a mere defense to
liability; and like an absolute immunity, it is
effectively lost if a case is erroneously permitted
to go to trial." Ibid. As a result, "we repeatedly
1070174
14
have stressed the importance of resolving immunity
questions
at
the
earliest
possible
stage
in
litigation." Hunter v. Bryant, 502 U.S. 224, 227,
112 S. Ct. 534, 116 L. Ed.2d 589 (1991) (per
curiam).'"
Ryan, 831 So. 2d at 31-32 (quoting Saucier v. Katz, 533 U.S.
194, 199-202 (2001)).
The trial court reasoned that because the parties had
waived the right to a jury trial in this case, in favor of a
bench trial, that a "great deal of costs and expense"
associated with a jury trial would be alleviated. However, by
delaying until trial its determination of the sovereign-
immunity defenses asserted by the petitioners, the trial court
has effectively denied the petitioners their privilege of not
being subjected to suit and their right to not stand trial and
face the burdens of litigation should their immunity defenses
prove dispositive. Ryan, supra. Accordingly, we conclude
that the trial court erred in failing to address the
sovereign-immunity defenses at the summary-judgment stage of
the litigation.
The petitioners next argue that the trial court erred in
finding that a genuine issue of fact existed as to whether Dr.
Smith had acted fraudulently or beyond his authority thereby
1070174
The plaintiffs do not include in the argument section of
4
their brief a description of how Dr. Smith acted fraudulently
or beyond the scope of his authority so as to remove him from
the protection afforded him by State-agent immunity. Instead,
they simply refer to Dr. Smith's conduct as "acting under a
mistaken interpretation of the law" with almost no development
of this argument. Therefore, it could be assumed that the
plaintiffs have abandoned their contentions on appeal as they
relate to Dr. Smith's claim of State-agent immunity. However,
because the trial court found that a genuine issue of material
fact existed as to whether Dr. Smith had acted fraudulently
and/or beyond his authority and, therefore, whether he was
entitled to State-agent immunity, we will address the issue
whether Dr. Smith was entitled to State-agent immunity.
15
removing him from the protection of State-agent immunity.
4
In Ex parte Cranman, 792 So. 2d 392 (Ala. 2000), a
plurality of this Court restated the test for determining when
a State employee is entitled to State-agent immunity:
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's
"(1) formulating
plans,
policies,
or
designs;
or
"(2) exercising his or her judgment in the
administration
of
a
department
or
agency
of
government, including, but not limited to, examples
such as:
"(a)
making
administrative
adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
1070174
16
"(d) hiring, firing, transferring,
assigning, or supervising personnel; or
"(3) discharging duties imposed on a department
or agency by statute, rule, or regulation, insofar
as the statute, rule, or regulation prescribes the
manner for performing the duties and the State agent
performs the duties in that manner; or
"(4) exercising judgment in the enforcement of
the criminal laws of the State, including, but not
limited to, law-enforcement officers' arresting or
attempting to arrest persons; or
"(5) exercising judgment in the discharge of
duties imposed by statute, rule, or regulation in
releasing prisoners, counseling or releasing persons
of unsound mind, or educating students.
"Notwithstanding
anything
to
the
contrary
in
the
foregoing statement of the rule, a State agent shall
not be immune from civil liability in his or her
personal capacity
"(1) when the Constitution or laws of the United
States, or the Constitution of this State, or laws,
rules, or regulations of this State enacted or
promulgated for the purpose of regulating the
activities
of
a
governmental
agency
require
otherwise; or
"(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his
or her authority, or under a mistaken interpretation
of the law."
792 So. 2d at 405. Although Cranman was a plurality decision,
the restatement of law as it pertains to State-agent immunity
set forth in Cranman was subsequently adopted by this Court's
1070174
17
decisions in Ex parte Rizk, 791 So. 2d 911 (Ala. 2000), and Ex
parte Butts, 775 So. 2d 173 (Ala. 2000).
Additionally, this Court has stated:
"This Court has established a 'burden-shifting'
process
when
a
party
raises
the
defense
of
State-agent immunity. Giambrone v. Douglas, 874 So.
2d 1046, 1052 (Ala. 2003). In order to claim
State-agent immunity, a State agent bears the burden
of demonstrating that the plaintiff's claims arise
from a function that would entitle the State agent
to immunity. Giambrone, 874 So. 2d at 1052; Ex
parte Wood, 852 So. 2d 705, 709 (Ala. 2002). If the
State agent makes such a showing, the burden then
shifts to the plaintiff to show that the State agent
acted willfully, maliciously, fraudulently, in bad
faith, or beyond his or her authority. Giambrone,
874 So. 2d at 1052; Wood, 852 So. 2d at 709; Ex
parte Davis, 721 So. 2d 685, 689 (Ala. 1998). 'A
State agent acts beyond authority and is therefore
not immune when he or she "fail[s] to discharge
duties pursuant to detailed rules or regulations,
such as those stated on a checklist."' Giambrone,
874 So. 2d at 1052 (quoting Ex parte Butts, 775 So.
2d 173, 178 (Ala. 2000))."
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006).
Dr. Smith, as the interim director of ACES during the
period
faculty
members
were
converting
from
12-month
appointments to 9-month appointments, exercised his judgment
in the administration of that agency, thereby establishing
that he was engaged in a function that would entitle him to
State-agent immunity. Ex parte Cranman, supra. Therefore,
1070174
In June 2005, Dr. Smith responded by letter to the
5
plaintiffs' request for an increase in their base salaries
allegedly to create equity with the nine-month appointees. In
that letter Dr. Smith simply stated that federal policy
prohibited the plaintiffs from converting from 12-month
appointments to 9-month appointments and still remain eligible
for their Federal Civil Service Retirement. He did not state
that
federal
policy
prohibited
the
plaintiffs
from
18
the burden then shifted to the plaintiffs to show that that
Dr. Smith acted willfully, maliciously, fraudulently, in bad
faith, or beyond his authority in order to remove Dr. Smith
from the protection of State-agent immunity. Ex parte Estate
of Reynolds, supra.
The plaintiffs alleged in their complaint that Dr. Smith
fraudulently represented to them that federal regulations
prohibited the plaintiffs, as former Schedule A appointees,
from supplementing their base salaries with externally funded
programs when, in fact, it was University policy, not federal
regulations,
that
prohibited
the
plaintiffs
from
supplementing
their salaries as 12-month appointees. Assuming that Dr.
Smith did misrepresent to the plaintiffs that federal policy
prevented
them
from
supplementing
their
salaries,
we
nevertheless conclude that Dr. Smith's conduct did not fall
within the willful, malicious, and fraudulent exception to
State-agent
immunity.
The
plaintiff in Segrest v. Lewis,
5
1070174
supplementing their 12-month salaries through externally
funded programs. Dr. Smith later testified in his deposition
and affidavit that it was the University's policy that
prohibited the plaintiffs from enhancing their 12-month
salaries with externally funded programs.
19
907 So. 2d 452 (Ala. Civ. App. 2005), was employed with the
Retirement Systems of Alabama ("the RSA") as an administrative
support assistant I. During her probationary period, the
plaintiff interviewed for a similar position with the State
Board of Pardons and Paroles ("the Parole Board"). On March
18, 2002, the Parole Board decided to employ the plaintiff.
On March 20, 2002, William Segrest, then the executive
director of the Parole Board, sent the plaintiff a letter
informing her that she had been approved for employment with
the Parole Board and that she was to report to work on April
8, 2002, to begin her employment. However, the State
Personnel Department did not approve the plaintiff's transfer
from the RSA to the Parole Board.
In reliance upon the letter from Segrest, the plaintiff,
on March 22, 2002, sent a letter to the RSA stating that she
would be leaving the RSA on April 5, 2002, to assume a
position with the the Parole Board. However, because the
State Personnel Department had not approved the plaintiff's
1070174
20
transfer to the Parole Board, she requested that she be
allowed to retract her resignation from her employment with
the RSA. The RSA informed the plaintiff on April 2, 2002,
that her request to retract her resignation could not be
approved because her resignation had been accepted and a
"Certification of Candidates" had been issued to fill her
position. Segrest, supra.
On May 3, 2002, the plaintiff sued Segrest, among others,
seeking to enforce Segrest's "commitment to employ" her. She
also alleged fraudulent misrepresentation and sought backpay
and benefits. On December 5, 2003, the trial court entered a
judgment in favor of the plaintiff, and Segrest appealed.
Segrest, supra.
The plaintiff argued on appeal that Segrest's conduct in
communicating the decision to employ her fell within the
exception to State-agent immunity that applies when a State
agent "acts willfully, maliciously, fraudulently, in bad
faith, beyond his or her authority, or under a mistaken
interpretation of the law." Ex parte Cranman, 792 So.2d at
405. In reversing the decision of the trial court, the Court
of Civil Appeals determined that the facts of the case were
1070174
21
such that Segrest was protected from liability by the doctrine
of State-agent immunity. The court stated:
"We do not read this provision from Ex parte
Cranman[, 792 So. 2d 392 (Ala. 2000),] and Ex parte
Butts[, 775 So. 2d 173, 178 (Ala. 2000)], nor do we
read any of the progeny of those cases, as holding
that an innocent misrepresentation by a state agent
falls outside the protection that for so long has
been provided by our law to state officials and
employees while acting within reason and in good
faith in the discharge of their responsibilities to
the public. If something more were not required in
order for conduct to fall within the exception
relied upon by [the plaintiff], that exception would
'swallow' the whole of the general rule of immunity
itself. Any misrepresentation is beyond the
authority of a state agent. Indeed, any misstep by
any state employee or other state agent that wrongs
another can be said to be beyond his or her
authority
and/or
committed
under
a
mistaken
interpretation of the law. Construing the exception
at issue in the manner urged by [the plaintiff]
would mean that missteps by a state agent, no matter
how innocently or reasonably taken, would in every
case pull the agent out from under the umbrella of
state-agent immunity provided by Ex parte Cranman
and Ex parte Butts and supported by the results
reached in decades of decisions that preceded those
cases. See Howard v. City of Atmore, 887 So. 2d
201, 206 (Ala. 2003) (Cranman is a 'restatement of
the law of immunity, not a statute'). Our conclusion
in this regard is supported by the fact that the
word
'fraudulently'
appears
in
the
exception
articulated in Ex parte Cranman and Ex parte Butts
sandwiched
between
the
terms
'willfully,
maliciously,' and 'in bad faith. Cf. King v. St.
Vincent's Hosp., 502 U.S. 215, 221, 112 S. Ct. 570,
116 L. Ed.2d 578 (1991) (quoting NLRB v. Federbush
Co., 121 F. 2d 954, 957 (2d Cir. 1941)) ('"Words are
not pebbles in alien juxtaposition; they have only
1070174
22
a communal existence; and not only does the meaning
of each interpenetrate the other, but all in their
aggregate take their purport from the setting in
which they are used...."').
"Our
conclusion
in
this
regard
also
is
consistent with the manner in which our appellate
courts have applied the principles of immunity to
state agents both before and after Ex parte Cranman
and Ex parte Butts. Compare, e.g., Byrd v. Lamar,
846 So. 2d 334 (Ala. 2002) (holding that acts of
promissory fraud--which require proof that the
defendants intended not to perform promised acts--
were
not
protected
by
state-agent
immunity);
Tuscaloosa County v. Henderson, 699 So. 2d 1274,
1277 (Ala. Civ. App. 1997) (holding that state-agent
immunity was not available to a county employee who
sued the plaintiff and had him arrested for
operating without a business license because the
evidence showed that, in so doing, the defendant
acted with 'malice, willfullness, or ... so beyond
his authority that sovereign immunity would not
apply' (footnote omitted)); Ex parte Tuscaloosa
County, 796 So. 2d 1100, 1106-07 (Ala. 2000)
(holding that a state agent was entitled to immunity
notwithstanding the fact that there was sufficient
evidence for a jury to return a verdict for
malicious prosecution, because malice for purposes
of malicious prosecution can be based upon a lack of
probable cause but such 'malice in law' is not
enough to satisfy the Ex parte Cranman exception for
acts
committed
'willfully,
maliciously,
fraudulently, in bad faith, beyond his or her
authority, or under a mistaken interpretation of the
law'); Bayles v. Marriott, 816 So. 2d 38 (Ala. Civ.
App. 2001)."
Segrest, 907 So. 2d at 456-57.
In this case, Dr. Smith allegedly represented to the
plaintiffs that federal regulations prohibited the plaintiffs
1070174
23
from supplementing their 12-month salaries with externally
funded programs, when in fact it was actually University
policy that prohibited the plaintiffs from supplementing their
salaries. Like the State agent in Segrest, Dr. Smith did no
more than misspeak when he allegedly communicated to the
plaintiffs that federal regulations prohibited them from
supplementing their 12-month salaries. In fact, both the
federal regulations and University policy acted together to
prevent the plaintiffs from supplementing their salaries with
externally funded programs. University policy prohibits 12-
month appointees from supplementing their salaries, while the
federal regulations prohibit the plaintiffs, as Schedule A
appointees, from converting to nine-month appointments so as
to be allowed to supplement their salaries. Dr. Smith simply
miscommunicated
to
the
plaintiffs
the
source
of
the
prohibition against their supplementing their salaries. He
did not miscommunicate to the plaintiffs that they were
prohibited from supplementing their salaries. Nothing in the
record before this Court indicates that Dr. Smith acted
"willfully, maliciously, fraudulently, or in bad faith" so as
1070174
24
to remove him from the umbrella of protection afforded him by
State-agent immunity.
Although not entirely clear, it appears that the
plaintiffs argued that Dr. Smith had acted beyond his
authority in his June 2005 letter by offering, even though he
allegedly lacked the authority to do so, to abolish "[their]
current position making [the plaintiffs] eligible to receive
an immediate federal retirement annuity and free to negotiate
a nine-month appointment." The plaintiffs submitted the
affidavit of Dr. James L. Smith, the former associate director
for human resources for ACES, who testified that the
plaintiffs were not ACES employees and that ACES had no
authority over them.
The plaintiffs' contention that Dr. Smith acted beyond
his authority in stating that he had the authority to abolish
their positions fails for the same reasons that their
contention that he acted fraudulently in communicating to them
that
federal
regulations,
and
not
University
policy,
prohibited them from supplementing their salaries. Assuming
Dr. Smith did not have the actual authority to abolish the
plaintiffs' positions, thus making them eligible to negotiate
1070174
25
nine-month appointments, nothing in the record indicates that
the plaintiffs' positions could not in fact be abolished by
the person with the actual authority to do so, thereby making
the plaintiffs eligible to negotiate nine-month appointments.
In other words, Dr. Smith may have miscommunicated to the
plaintiffs as to who actually had the authority to abolish
their positions, but he did not miscommunicate when he stated
that their positions could be abolished, thus making them
eligible for nine-month appointments. Further, Dr. Smith also
correctly informed the plaintiffs that they could become
eligible for 9-month appointments if they simply resigned
their 12-month positions. The plaintiffs offer nothing in
contradiction to this representation by Dr. Smith. Nothing in
the record indicates that Dr. Smith was acting in bad faith
when he miscommunicated to the plaintiffs that he had the
authority to abolish their positions in order to make them
eligible to negotiate nine-month appointments.
Accordingly, we conclude that Dr. Smith is entitled to
State-agent immunity as to the claims asserted against him in
his individual capacity by the plaintiffs in their amended
complaint.
1070174
26
We grant the petition for a writ of mandamus and direct
the trial court to address the petitioners' sovereign-immunity
claims and to enter a summary judgment in favor of Dr. Smith
as to the claims asserted against him in his individual
capacity in the plaintiffs' amended complaint.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and See, Stuart, Smith, Parker, and Murdock,
JJ., concur.
Lyons, J., concurs in the result.
1070174
27
LYONS, Justice (concurring in the result).
The complaint, as initially filed, contained two counts.
Count one sought to enjoin the defendants from discriminating
against the plaintiffs on the basis of age, as well as
backpay, plus costs and reasonable attorney fees, pursuant to
§ 25-1-22, Ala. Code 1975. Count two sought damages for a
denial of equal protection under the Alabama Constitution of
1901. An amended complaint added count three, seeking damages
for intentional and willful misrepresentation of material
facts and bad faith, and count four, seeking damages for
action by Dr. Gaines Smith allegedly in excess of his
authority.
The defendants moved for a summary judgment based upon 1)
sovereign immunity, 2) the unavailability of relief against
the State officials in their individual capacities on the age-
discrimination claim because neither individual is the
employer of the plaintiffs, 3) the absence of any provision
for equal protection of the laws under the Alabama
Constitution of 1901, and 4) failure of the fraud and bad-
faith count (count three) to state a claim upon which relief
can be granted. After receiving briefs and hearing arguments,
1070174
28
the trial court entered what is best described as an oblique
order that, among other things, stated: "[T]he remaining
issue before the Court was whether or not Dr. Gaines Smith
should be granted immunity." The trial court concluded that
there was a genuine issue of material fact as to whether Dr.
Smith had acted beyond his authority, justifying imposing
individual liability under the exception recognized in Ex
parte Cranman, 792 So. 2d 392 (Ala. 2000), for conduct beyond
a State agent's authority. Specifically, the trial court
concluded that there was a genuine issue of material fact as
to whether Dr. Smith "exceeded his authority by misstating his
actual authority." The trial court found that "the
Defendants' motion for summary judgment is due to be denied on
this ground." (Emphasis added.) The trial court then
concluded: "In our case at bar, the issue of sovereign
immunity does not need to be addressed prior to further
litigation, and the case may go forward with a discussion of
the issue of immunity during the course of the bench trial."
In conclusion, the trial court stated: "[S]ince all issues
will be heard in a bench trial, making a determination as to
sovereign immunity can best be decided by hearing all of the
1070174
29
testimony regarding the subject instead of bifurcating the
issues." (Emphasis added.)
The trial court did not specifically refer to the
necessity of further proceedings with respect to the merits of
the age-discrimination claim, the equal-protection claim, or
the fraud and bad-faith count. The propriety of summary
judgment as to the merits of those claims or, indeed, whether
the trial court indirectly disposed of them by failing to
refer to them, is not before us on this proceeding, which is
limited solely to the availability of the defense of immunity.
Evidence as to the personal liability of Dr. Smith by
reason of his action in excess of his authority is the sole
basis for the trial court's recognition of the existence of a
genuine issue of material fact as to the availability to Dr.
Smith of the defense of State-agent immunity. Only count four
of the amended complaint refers to action in excess of
authority. However, the trial court's reference to Dr.
Smith's "misstating his actual authority" could also be
relevant to count three of the complaint, charging fraud and
bad faith. Thus, the trial court's order can be said to sweep
in favor of triable issues as to the availability of State-
1070174
30
agent immunity as to both counts three and four. Whether the
trial court's order should also be correctly interpreted as
recognizing or rejecting triable issues as to immunity with
respect to counts one (age discrimination) and two (equal
protection) simply cannot be determined at this juncture. I
am not willing to address an issue that mere speculation might
suggest is properly before us. Thus, the sole issue before
this Court at this stage of the proceeding coming to us by a
petition for a writ of mandamus seeking enforcement of the
defense of immunity is whether the trial court erred in not
entering a summary judgment in favor of the defendants as to
counts three and four of the amended complaint.
The controversy centers around Dr. Smith's having
described his authority in a letter to the plaintiffs in terms
that erroneously attributed to him greater authority than he
in fact possessed. We recognize an exception to State-agent
immunity "when the State agent acts willfully, maliciously,
fraudulently, in bad faith, beyond his or her authority, or
under a mistaken interpretation of the law." See Ex parte
Cranman, 792 So. 2d at 405. The plaintiffs argue before us
that they are entitled to the exception from immunity
1070174
31
described as "a mistaken interpretation of the law."
Respondents' brief, p. 14. However, count four of the
complaint does not allege a mistaken interpretation of the
law; instead, as previously noted, it charges that Dr. Smith
acted beyond his authority. Confining review to that issue,
in Finnell v. Pitts, 222 Ala. 290, 293, 132 So. 2, 4 (1930),
this Court stated: "If in the promotion of the state's
business its officers without authority of law apply private
property to the state's enterprises, they are guilty of the
same nature of wrong, as if they were acting as agents of a
private corporation." We lose the sense of the exception if
we take it beyond the context of intentional conduct, such as
the taking of property as was the case in Pitts, one of the
early cases in which it was recognized. See also Elmore v.
Fields, 153 Ala. 345, 351, 45 So. 66, 67 (1907) ("Here, we
have an agent charged with a tort [trespass], setting up by
plea that he was acting for and in behalf of the state, and
the authorities hold that he has no authority to act for the
state in the commission of a tort."). The foundation of the
trial court's denial of immunity--the inaccurate description
of Dr. Smith's authority--does not in and of itself constitute
1070174
32
a freestanding intentional tort to which the exception from
immunity based on action beyond a State agent's authority can
apply.
With respect to the allegation of fraud in count three of
the amended complaint, I agree with the conclusion in the main
opinion that an innocent misrepresentation does not fall
within an exception to State-agent immunity. Therefore, the
petition for a writ of mandamus can be denied if a question of
fact exists as to whether Dr. Smith acted willfully in
misstating his authority. The petitioners (the defendants in
the trial court) did not provide a complete record of the
responses filed by the plaintiffs in opposition to their
summary-judgment motion. In Ex parte Covington Pike Dodge,
Inc., 904 So. 2d 226, 232 n.2 (Ala. 2004), this Court
explained the role of the parties in assembling a record in a
mandamus proceeding:
"The materials reviewed by this Court in
considering a petition for writ of mandamus consist
of exhibits provided by the parties:
"'[A] petitioner for a writ of mandamus is
obliged to provide with the petition
"copies of any order or opinion or parts of
the record that would be essential to an
understanding of the matters set forth in
the petition." Rule 21(a), Ala. R. App. P.
1070174
33
In the event the petition is not denied,
the respondent is directed to file an
answer to the petition, which provides the
respondent
with
an
"opportunity
to
supplement
the
'record'
by
attaching
exhibits of its own...."'
"Ex parte Fontaine Trailer Co., 854 So. 2d 71, 74
(Ala. 2003) (quoting Ex parte Miltope Corp., 522 So.
2d 272, 273 (Ala. 1988))."
In their answer to the petition the plaintiffs attach numerous
affidavits and documents as exhibits, but they fail to attach
any responses to the summary-judgment motion. Of course, such
responses do exist, as some of the materials attached to the
petition respond to them. The plaintiffs do not argue in
their brief in opposition to the petition that there is a
genuine issue of material fact as to a state of mind
consistent with intentional misrepresentations on the part of
Dr. Smith. Nothing in the trial court's order suggests the
existence of a genuine issue of material fact as to Dr.
Smith's state of mind.
I would grant the petition and order the trial court to
hold
further
proceedings,
before
holding
any
bench
trial,
with
respect to the defendants' motion for a summary judgment, with
such proceedings to culminate in an order either entering or
denying a summary judgment as to each count of the complaint
1070174
34
and with such further proceedings to be governed by the
conclusions expressed herein with respect to the absence of
any impediment to State-agent immunity arising from Dr.
Smith's having exceeded his authority or misstated his
authority. | October 3, 2008 |
63b8d7a2-e11e-4b8a-b418-b11cba2dae20 | Robert Horn v. Latrice Brown | N/A | 1061656 | Alabama | Alabama Supreme Court | REL:8/22/2008
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
____________________
1061656
____________________
Robert Horn
v.
Latrice Brown
Appeal from Shelby Circuit Court
(CV-07-120)
SMITH, Justice.
Robert Horn appeals from an order of the Shelby Circuit
Court in an action filed against him by his daughter, Latrice
Brown. Because the order from which Horn appeals is not a
final judgment, we dismiss the appeal.
1061656
2
Facts and Procedural History
In 1993, Brown's mother, Felicia Yvonne Brown Carson, was
killed in a motor-vehicle accident. Carson and Horn, who were
not married at the time of Carson's death, had three
children, including Brown, who were minors at the time of her
death. Carson died intestate, and a civil action was filed on
behalf of Carson's estate against the driver of the other
vehicle involved in the accident and the driver's employer.
That action eventually settled, and, according to Brown, the
estate received over $6,000,000.
In February 2007, Brown filed the underlying action
against Horn, alleging that she was entitled to one-third of
the proceeds from the settlement of the civil action filed on
behalf of Carson's estate and that Horn had control over those
proceeds. Brown contended that Horn had prevented her from
obtaining her portion of the settlement proceeds, and Brown
sought compensatory and punitive damages from Horn under
theories of conversion and unjust enrichment.
Horn did not file a timely answer to Brown's complaint,
and Brown moved for a default judgment. Horn subsequently
1061656
3
filed an answer generally denying the allegations of Brown's
complaint.
On March 30, 2007, Brown served Horn with a written
request for admissions under Rule 36, Ala. R. Civ. P. Among
other things, Brown requested that Horn admit or deny the
following:
"6. A lawsuit was filed concerning the death of
Ms. Carson.
"....
"15. Said lawsuit was settled for more than
$6,000,000.
"16. As one of Ms. Carson's three living heirs,
[Brown] was entitled to one-third of said money.
"17. Because [Horn was] not one of Ms. Carson's
heirs, [he] had no legal right to any portion of
said money.
"18. Because [Brown] was a minor child at the
time said money was received, [Horn] took possession
of her share of said money.
"19. Despite the fact that [Brown] is now an
adult, [Horn] refused to give to [her] her share of
said money."
Horn did not file a timely response to the request for
admissions. Relying on that part of Rule 36, Ala. R. Civ. P.,
that states that a requested "matter is admitted unless,
within thirty (30) days after service of the request, or
1061656
4
within such shorter or longer time as the court may allow, the
party to whom the request is directed serves upon the party
requesting the admission a written answer or objection
addressed to the matter," Brown moved for a summary judgment
as to her request for compensatory damages for her claims of
conversion and unjust enrichment when Horn failed to file an
answer or objection within 30 days. Specifically, her motion
asserted:
"31. Based on the facts admitted by [Horn],
there
is
no
genuine
issue
of
material
fact
concerning whether [Brown] is entitled to prevail on
her claim of unjust enrichment. ... [Horn] admits
that he took possession of money that rightfully
belonged to [Brown] and refuses to give said money
to [Brown].
"32. Based on the above, there is no genuine
issue of material fact that [Brown] is entitled, as
a matter of law, to a judgment against [Horn] for
compensatory damages in the amount of $2,000,000.
"... [Brown] requests that this court enter a
[summary] judgment ... in her favor against [Horn]
for
compensatory
damages
in
the
amount
of
$2,000,000, with leave to prove punitive damages."
After Brown filed her summary-judgment motion, Horn filed
responses to Brown's request for admissions. Brown then filed
a motion arguing that Horn's responses to the request for
admissions were untimely under Rule 36, Ala. R. Civ. P. Brown
1061656
5
contended that, because Horn had failed to file a timely
response to her request for admissions, the matters in Brown's
written request for admissions were deemed admitted by Horn.
Brown again asked the court to enter a summary judgment in her
favor for $2,000,000 in compensatory damages "with leave to
prove punitive damages."
The trial court held a hearing on Brown's motions on July
9, 2007. Following that hearing, the trial court entered an
order on July 16, 2007, stating that Brown's motion for a
summary judgment "is hereby GRANTED." On July 25, 2007, the
trial court denied Horn's motion to alter, amend, or vacate
the judgment of July 16, 2007.
Horn filed his notice of appeal to this Court on August
17, 2007. After briefs were filed, this Court, in an order
issued on November 21, 2007, dismissed the appeal as being
from a nonfinal order. Horn v. Brown (Ms. 1061656, Nov. 21,
2007). The order stated that the appeal was being dismissed
because it appeared "that there [had] been no entry of final
judgment from which an appeal [could] be taken."
Horn then moved to supplement the record to include an
order of the trial court dated August 22, 2007, which Horn
1061656
Horn actually filed an application for rehearing; this
1
Court treated the filing of that application as a motion to
reinstate the appeal.
Brown has not filed a brief with this Court. Although
2
she was represented by counsel in the trial court, Brown
discharged her attorney after the trial court entered a
summary judgment in her favor. In this appeal, the attorney
who represented Brown in the trial court filed briefs as an
amicus curiae arguing in support of the trial court's
judgment.
6
asserted "was intended to be a final order of this cause."
That
motion
was
granted,
and
after
the
record
was
supplemented, Horn filed a motion seeking to have the appeal
reinstated. The appeal was reinstated, and briefs were
1
refiled.2
Discussion
Horn
contends
that
the
trial
court
exceeded
its
discretion in refusing to consider Horn's responses--which
Horn concedes were untimely filed--to Brown's written request
for admissions under Rule 36, Ala. R. Civ. P. Therefore, Horn
argues, the trial court erred in entering a summary judgment
on Brown's claim for $2,000,000 in compensatory damages.
Horn's appeal, however, is due to be dismissed because there
has been no final judgment entered in this action.
"'An appeal will ordinarily lie only from a
final
judgment;
that
is,
a
judgment
that
1061656
7
conclusively determines the issues before the court
and ascertains and declares the rights of the
parties.' Palughi v. Dow, 659 So. 2d 112, 113 (Ala.
1995). 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 (1975)."
Hamilton v. Connally, 959 So. 2d 640, 642 (Ala. 2006).
In her complaint, Brown asserted claims of conversion and
unjust enrichment. For those two claims, Brown sought two
types of relief: compensatory damages and punitive damages.
In moving for a summary judgment, Brown specifically requested
a judgment "for compensatory damages in the amount of
$2,000,000, with leave to prove punitive damages" (emphasis
added). Although the trial court entered an order awarding
Brown $2,000,000 in compensatory damages on her conversion
and unjust-enrichment claims, the trial court has not disposed
of Brown's request for punitive damages on those same claims.
In Haynes v. Alfa Financial Corp., 730 So. 2d 178, 181
(Ala. 1999), this Court noted that "'there is no such thing as
a "claim of punitive damages." Rather, there are claims on
which our law authorizes the trier of fact to impose punitive
damages if certain wrongfulness is proved by a sufficient
1061656
8
weight of the evidence.'" (Quoting Hines v. Riverside
Chevrolet-Olds, Inc., 655 So. 2d 909, 925 (Ala. 1994),
overruled on other grounds, State Farm Fire & Cas. Co. v.
Owen, 729 So. 2d 834 (Ala. 1998).) Thus, there remains a
pending request for punitive damages on Brown's claims of
conversion and unjust enrichment; consequently, there has been
no judgment finally disposing of all the claims in the
underlying action. Haynes, supra. In Grantham v. Vanderzyl,
802 So. 2d 1077, 1080 (Ala. 2001), this Court stated:
"Damages are only one portion of a claim to
vindicate a legal right, even though the damages
claimed may consist of several elements. See
[Haynes, 730 So. 2d] at 181. An order is not final
if it permits a party to return to court and prove
more damages or if it leaves open the question of
additional recovery. See Precision American Corp.
v. Leasing Serv. Corp., 505 So. 2d 380, 382 (Ala.
1987)."
This Court noted in Dzwonkowski v. Sonitrol of Mobile, Inc.,
892 So. 2d 354, 361-62 (Ala. 2004):
"[I]t must be remembered that '[d]amages are [an
element] of a claim to vindicate a legal right.'
Grantham v. Vanderzyl, 802 So. 2d 1077, 1080 (Ala.
2001).
"'Where the amount of damages is an issue, ...
the recognized rule of law in Alabama is that no
appeal will lie from a judgment which does not
adjudicate that issue by ascertainment of the amount
of those damages.' Moody v. State ex rel. Payne,
1061656
The August 22, 2007, order states:
3
"This court granted [Brown's motion for a
summary judgment] on July 16, 2007, based upon the
facts admitted by [Horn] as a result of [Horn's]
failure to respond to [Brown's] First Request for
Admissions. Accordingly it is the order of this
Court that judgment is rendered for [Brown] and
against [Horn] in the amount of $2,000,000.
"Furthermore, it is the intention of this Court
that the judgment granted herein is not to be
dischargeable by [Horn], pursuant to § 523 of the
Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005. Specifically, this Court notes that §
523(4) prevents discharge of a debt created through
defalcation while acting in a fiduciary capacity.
It is the opinion of this Court that, based on the
admitted facts, [Horn] was acting as a fiduciary
concerning the $2,000,000 that belonged to [Brown]
and that [Horn] misappropriated this money to his
own benefit.
"This Court also notes that § 523(6) prevents
discharge of a debt created through willful and
malicious
injury.
This
Court
observes
that
[Brown's] complaint pleads conversion, which is an
intentional tort. See, e.g., Industrial Techs., Inc.
v. Jacobs Bank, 872 So. 2d 819 (Ala. 2003).
Additionally, this Court observes that [Horn's]
9
351 So. 2d 547, 551 (Ala. 1977). 'That a judgment
is not final when the amount of damages has not been
fixed by it is unquestionable.' 'Automatic'
Sprinkler Corp. of America v. B.F. Goodrich Co., 351
So. 2d 555, 557 (Ala. 1977)."
Although Horn supplemented the record to include an
order of the trial court dated August 22, 2007, that order
does not address Brown's request for punitive damages, nor
3
1061656
tortious conduct, evidenced by the admitted facts,
was intentional, willful, and malicious."
10
does any other order in the record before us. Thus, there has
been no final judgment in the underlying action; no order has
"put an end to the proceedings and [left] nothing for further
adjudication." Hamilton, 959 So. 2d at 642. This appeal is
therefore due to be dismissed.
Conclusion
The appeal is dismissed.
APPEAL DISMISSED.
Cobb, C.J., and See, Woodall, and Parker, JJ., concur. | August 22, 2008 |
ac0e895e-799e-4be0-b21e-c61a793429ab | Ex parte Virginia Moses. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Terry Elizabeth Denson v. Virginia Moses) | N/A | 1071134 | Alabama | Alabama Supreme Court | REL: 08/08/2008
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
____________________
1071134
____________________
Ex parte Virginia Moses
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Terry Elizabeth Denson
v.
Virginia Moses)
(Dale Circuit Court, CV-00-97;
Court of Civil Appeals, 2070140)
STUART, Justice.
The petition for the writ of certiorari is quashed.
1071134
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.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur. | August 8, 2008 |
8f03c24d-3e85-4a66-b3d7-8563ebdef5d3 | Ex parte Theresa Lawson, d/b/a The Design Company. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re:Theresa Lawson, d/b/a The Design Company v. Brian Homes, Inc., et al.) | N/A | 1060206 | Alabama | Alabama Supreme Court | EL:07/18/2008
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
_________________________
1060206
_________________________
Ex parte Theresa Lawson d/b/a The Design Company
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Theresa Lawson d/b/a The Design Company
v.
Brian Homes, Inc., et al.)
(Madison Circuit Court, CV-04-869, CV-04-871, CV-04-1113,
CV-04-1477, CV-04-1478, CV-04-2012, and CV-04-2013;
Court of Civil Appeals, 2040619, 2040620, 2040621, 2040622,
2040623, 2040624, and 2040625)
BOLIN, Justice.
1060206
2
Theresa Lawson d/b/a The Design Company ("Lawson")
petitioned this Court for a writ of certiorari to review the
Court of Civil Appeals' opinion in Lawson v. Brian Homes,
Inc., [Ms. 2040619, October 20, 2006] So. 2d (Ala.
Civ. App. 2006). Lawson asked this Court to review whether
the Court of Civil Appeals' opinion conflicts with prior
decisions of this Court and the Court of Civil Appeals
regarding equitable subrogation. We granted the writ on this
ground.
Facts and Procedural History
The Court of Civil Appeals' opinion sets out the facts as
follows:
"Brian
Homes,
Inc.
('Brian
Homes'),
a
homebuilding company, developed certain parcels of
property in Madison County by building single-family
residences on those parcels. On June 20, 2003,
Brian Homes obtained a construction loan secured by
a
mortgage
upon
those
parcels
('the
senior
mortgage') from New South Federal Savings Bank.
Theresa Lawson, who does business as The Design
Company ('Lawson'), performed subcontractor work for
Brian Homes, installing carpet, tile, and marble
flooring in numerous residences. In January 2004,
the construction loan secured by the senior mortgage
was paid in full with the proceeds of loans made on
behalf of the ultimate occupiers of the constructed
houses ('the purchasers') by Wells Fargo Home
Mortgage,
Inc.;
Chase
Manhattan
Mortgage
Corporation; Countrywide Home Loans, Inc.; and Full
Spectrum Lending, Inc. ('the lenders'). At the time
1
1060206
3
that the construction loan was paid in full, no
materialman's liens had been recorded as to any of
the parcels. In fact, it is undisputed that the
lenders had no notice of a junior or secondary lien
at the time they provided the funds to satisfy the
loan secured by the senior mortgage. Lawson
perfected materialman's liens as to the seven
parcels at issue during the spring of 2004, and in
August 2004 she filed multiple actions against the
lenders and the purchasers to enforce those liens.
The time line of each of the seven actions is
marginally different from the others, but the
priority issues are the same in all seven cases.
"In each of the cases, the sequence of events is
substantially the same: New South Federal Savings
Bank held a first mortgage on each parcel on which
a house was to be built by Brian Homes and its
subcontractors. Lawson then provided material and
labor to complete the flooring as to each house.
Shortly after the completion of Lawson's work, Brian
Homes sold each separate parcel of property to one
of the purchasers, who acted in good faith and had
no notice of the existence of Lawson's potential
lien. After Brian Homes had failed to pay Lawson
with proceeds from those sales, Lawson attempted to
perfect liens as to each parcel. The filing and
2
recording
of
those
liens
occurred
after
the
recording of the senior mortgage and after the
recording of the lenders' mortgages. In each
action, Lawson asserted that her lien took priority
over the lenders' mortgages pursuant to § 35-11-211,
Ala. Code 1975, and she requested that the trial
court order the sale of each of those parcels in
order to pay Lawson the amount due on each lien.
"The lenders filed summary-judgment motions in
each of Lawson's actions to enforce the liens; in
those motions, the lenders argued that either
Lawson's liens did not have priority over the
lenders' mortgages or that the lenders were due to
be equitably subrogated as to the senior mortgage.
1060206
4
Lawson,
relying
on
this
court's
decision
in
Collateral Investment Co. v. Pilgrim, 421 So. 2d
1274 (Ala. Civ. App. 1982), opposed the lenders'
motions and filed her own summary-judgment motion in
each action.
"The trial court entered summary judgments in
favor of the lenders and the purchasers in all of
Lawson's
lien-enforcement
actions,
noting
that
Lawson might otherwise have priority pursuant to §
35-11-211, Ala. Code 1975 (the materialman's lien
priority statute), but that, in each case at issue,
the lenders were equitably subrogated to the first-
priority position of the senior mortgage. Lawson
3
appeals and asserts that the trial court erred in
failing to correctly apply § 35-11-211, Ala. Code
1975, and the holding in Pilgrim.
"The primary question on appeal is whether the
trial court could properly enter a summary judgment
against Lawson in each of her actions seeking to
force a sale of the pertinent parcel of property in
order to enforce her lien. In each case, Lawson and
the current homeowners and the lenders agreed to
accept the trial court's judgment without a hearing
and based upon the pleadings and exhibits, and, in
each case, the trial court determined that despite
Lawson's statutory-priority argument, her position
was secondary to that of the lenders, who were held
to be entitled to equitable subrogation as to the
senior mortgage.
" Although Lawson named the purchasers of each
1
parcel in her seven complaints, the purchasers are
not parties to this appeal.
" The
record
contains
detailed
statements
2
concerning the total amount that Brian Homes owed
Lawson; although that total was over $425,000, the
liens involved in these appeals range in value from
$5,500 to $10,800.
1060206
5
" The trial court entered a Rule 54(b), Ala. R.
3
Civ. P., order at the same time that it entered the
summary judgments in these cases; each judgment also
noted that '[t]his judgment does not establish the
existence of a lien in favor of [Lawson], which
issue is reserved for trial.'"
Lawson, So. 2d at .
The Court of Civil Appeals concluded that Wells Fargo
Home Mortgage, Inc., Chase Manhatten Mortgage Corporation,
Countrywide Home Loans, Inc., and Fall Spectrum Lending, Inc.
("the lenders"), all of whom loaned money to the homeowners to
purchase their homes, had established all the elements
necessary to invoke the doctrine of equitable subrogation.
Lawson conceded that her materialman's liens were subordinate
to the mortgage held by New South Federal Savings Bank, which
financed
Brian
Homes'
construction
loan
("the
senior
mortgage"). The lenders had satisfied the senior mortgage
without actual notice of the materialman's liens claimed by
Lawson and, therefore, the Court of Civil Appeals reasoned,
should be treated as assignees of the senior mortgage. The
Court of Civil Appeals further held that that result was not
inequitable because it leaves Lawson in the same position she
occupied at the time she supplied the materials and labor to
Brian Homes and that the application of the doctrine of
1060206
6
equitable subrogation will not change the priority of her
liens because she started in a subordinate position.
The Court of Civil Appeals stated that although the
materialman's lien statutes, §§ 35-11-210 through 35-11-234,
Ala. Code 1975, provide subcontractors the opportunity and
procedure by which to perfect liens against property to which
improvements have been made, those statutes do not guarantee
that such liens will not be subject to equitable subrogation
when the facts and equity require it. In reaching its
conclusion, the Court of Civil Appeals overruled Collateral
Investment Co. v. Pilgrim, 421 So. 2d 1274 (Ala. Civ. App.
1982). It stated:
"The construction
industry
today
relies
on
banks
and mortgage lenders to provide both initial
construction-loan
moneys
to
underwrite
the
construction of new houses and other buildings as
well
as
purchase-money
loans
to
prospective
individual buyers of those completed structures. In
a completely honest and fair world, every developer,
contractor, and subcontractor would be paid for his
or her work from the proceeds of the sale of the
property to the ultimate purchaser. However, if we
were
to
accept
Lawson's
argument
that
the
materialman's lien statute gives her liens priority
over the lenders' purchase-money mortgages, all
unpaid subcontractors who perfected materialman's
liens as to these pertinent properties will receive
an immediate windfall by forcing the sale of the
residences, leaving the lenders (and the purchasers)
without recourse. The doctrine of equitable
1060206
7
subrogation therefore serves a remedial purpose in
this context, and we conclude that the trial court's
application of that doctrine in these cases is
consistent with cases decided since Pilgrim that
discuss the doctrine."
Lawson v. Brian Homes, So. 2d at .
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). We are reviewing the Court of Civil Appeals'
affirmance of summary judgments. "The law is well established
that a de novo standard applies to appellate review of a trial
court's summary judgment." Ex parte Patel, [Ms. 1060897,
October 5, 2007] So. 2d , (Ala. 2007).
Analysis
The dispositive issue before us is whether the Court of
Civil Appeals properly applied the doctrine of equitable
subrogation to hold that the lenders' loans are subrogated to
the priority position of the senior mortgage held by the
1060206
8
construction lender even though there was an intervening
materialman's lien.
In Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So.
2d 138 (Ala. 1990), this Court set out the history of
mechanic's liens and materialman's liens. In 1791, Maryland
passed the first mechanic's lien law. In 1821, Alabama
enacted its first mechanic's lien statute for the protection
of materialmen and mechanics. The section of the statute
regarding priorities remained virtually unchanged until 1933.
Before 1933, a materialman had an advantage over a lender.
The materialman had absolute priority. Following pleas from
construction lenders, the legislature in 1933 amended the
priority section of the mechanic's lien statute. The effect
of the 1933 amendment was to reverse the priorities between a
materialman's lien and a prior recorded mortgage. However,
the legislature made it clear that a materialman's lien had
"priority over all other liens, mortgages or incumbrances
created subsequent to the commencement of work on the building
or improvement ...." Act No. 64, Ala. Acts 1933, Ex. Sess.
(emphasis added). Today, § 35-11-211(a) still provides, in
pertinent part, that "[s]uch lien as to the land and buildings
1060206
9
or improvements thereon, shall have priority over all other
liens, mortgages or incumbrances created subsequent to the
commencement of work on the buildings or improvement. ..."
"[A materialman's] lien comes into existence
immediately when one provides any materials or
performs labor upon the property but remains
inchoate unless a statement of lien is timely filed
with the judge of probate of the county in which the
property is situated (§ 35-11-213), and unless suit
is timely filed to perfect the [materialman's] lien
(§ 35-11-221). Once these two steps are timely
undertaken, the lien relates back to the date that
the materials or labor was provided, and the
priority of the lien is determined according to §
35-11-211.
Such
a
lien
has
priority
over
encumbrances attaching after the commencement of the
work."
Greene v. Thompson, 554 So. 2d 376, 379 (Ala. 1989)(citations
and footnotes omitted).
This Court has long recognized the doctrine of equitable
subrogation. See, e.g., Bolman v. Lohman, 74 Ala. 507, 512
(1883)("[W]here money is expressly advanced in order to
extinguish a prior incumbrance, and is used for this purpose,
with the just expectation on the part of the lender of
obtaining a valid security; or where its payment is secured by
a mortgage, which for any reason is adjudged to be defective,
the lender or mortgagee may be subrogated to the rights of the
of the prior incumbrancer, whose claim he has satisfied, there
1060206
10
being no intervening equity to prevent. ... So, where there
is misrepresentation and fraud, by which one has been induced
to advance money to discharge a lien on property, and the
money is so appropriated, it is common for equity to protect
the lender, by subrogating him to the lien which his money has
been used to extinguish.").
The elements of the doctrine of equitable subrogation
are:
"(1) [T]he money is advanced at the instance of the
debtor in order to extinguish a prior incumbrance;
(2) the money is used for that purpose with the just
expectation on the part of the lender for obtaining
security
of
equal
dignity
with
the
prior
incumbrance; (3) the whole debt must be paid before
subrogation can be enforced; (4) the lender must be
ignorant of the intervening lien; and (5) the
intervening
lienor
must
not
be
burdened
or
embarrassed."
Pilgrim, 421 So. 2d at 1276.
The Court of Civil Appeals has addressed the application
of the doctrine of equitable subrogation when the intervening
lien was a materialman's lien. In Pilgrim, the Court of Civil
Appeals held that a materialman's lien had a priority position
over a mortgage company that held a purchase-money mortgage on
the property after paying off a construction mortgage. In
Pilgrim, a construction company executed construction-money
1060206
11
mortgages on townhomes on the real property in question. The
materialman supplied lighting equipment and related fixtures
for the construction project. The townhome owners purchased
the finished townhomes. The mortgage company loaned the town-
home owners money in exchange for a purchase-money mortgage on
the townhomes. The attorneys for the mortgage company
examined a title abstract and found no materialman's liens.
Additionally, the construction company and the mortgage
company signed an affidavit at closing stating that all moneys
owed to materialmen had been paid. However, the materialman
in question had not been paid, and he filed a verified
statement of lien. The trial court concluded that the
materialman's lien had priority over the mortgage company's
purchase-money mortgage.
The mortgage company appealed. The Court of Civil
Appeals in Pilgrim noted that the construction-money mortgage
had been executed before the materialman supplied any
materials to the job site and that, as a result, it was
undisputed that the construction-money mortgage had priority
over the materialman's lien. The mortgage company satisfied
the construction-money mortgage and argued that by satisfying
1060206
12
that mortgage, it should now be allowed to claim first
priority under the doctrine of equitable subrogation. The
Court of Civil Appeals affirmed the judgment of the trial
court on two grounds. First, it held that the mortgage
company did not meet the first element of equitable
subrogation because the money had not been advanced at the
instance of the debtor to satisfy the prior mortgage. In
other words, the mortgage company loaned the money to the
townhome owners based on their individual credit. The money
was not loaned for the express purpose of satisfying the
construction-money mortgage. The mortgage company ordered
that the closing attorney pay the construction-money mortgage
for its own benefit, and not for the benefit of the debtor,
i.e., the construction company. Second, the Court of Civil
Appeals held that the mortgage company did not meet the fourth
element of equitable subrogation. The mortgage company was
satisfying a construction-money mortgage for new homes, and it
had constructive notice that by statute materialmen had six
months within which to file liens. The mortgage company was
not ignorant of the materialman's lien; therefore, another
element of equitable subrogation was not met.
1060206
13
In the present case, instead of following its decision in
Pilgrim, the Court of Civil Appeals overruled Pilgrim and
relied upon three cases from this Court that applied the
doctrine of equitable subrogation. See Brooks v. Resolution
Trust Corp., 599 So. 2d 1163 (Ala. 1992)(granting the
purchasers' request for equitable subrogation where the
purchasers discharged a debt to the senior lienholder without
knowledge that an intermediate vendor had mortgaged the
property to a junior lienholder); Whitson v. Metropolitan
Life Ins. Co., 225 Ala. 262, 142 So. 564 (1932)(imposing
equitable subrogation upon a showing of lack of actual
knowledge by the party paying to discharge a prior incumbrance
at the debtor's instance); and Shields v. Hightower, 214 Ala.
608, 108 So. 525 (1926)(holding that purchasers of real estate
from a tax collector, who satisfied, with part of the purchase
money, a mortgage that had been given prior to the execution
of the tax collector's bond, are entitled to subrogation to
the rights of the mortgagee as against the lien of the bond
despite being charged by law with notice of the tax
collector's lien). However, none of these cases involved a
materialman's lien.
1060206
14
In the present case, all the elements of the doctrine of
equitable subrogation have not been met. The first element of
equitable subrogation is that "the money is advanced at the
instance of the debtor in order to extinguish a prior
incumbrance." Pilgrim, 421 So. 2d at 1276. In his dissent in
Lawson v. Brian Homes, Judge Murdock stated:
"The second loans, which the main opinion
believes should be subrogated to the developer's
construction loan, were not made to the original
debtor. That is, they were not made to the
developer. Rather, they were made to the ultimate
purchasers of the houses. Also, the second loans
were made to the ultimate purchasers not for the
direct
purposes
of
extinguishing
any
prior
encumbrance, but rather for the purpose of enabling
the purchasers to make their purchases of the
houses. Although the moneys from these second loans
were loan proceeds in the hands of the purchasers,
they merely constituted payments by the purchasers
to the developer. Under the majority's analysis,
the lien of a material's supplier properly recorded
under our statutes would become all but meaningless
whenever a house is purchased by a purchaser who
utilizes loan proceeds to pay the builder or
developer
for
the
house
and
the
builder
or
developer, in turn, upon being paid for the house by
the purchaser, uses the proceeds of the sale of pay
off its construction loan."
So. 2d at . We agree.
Additionally, the fourth element of equitable subrogation
has not been met. That is, the lender must be ignorant of the
intervening lien. In the present case, the Court of Civil
1060206
15
Appeals concluded that the lenders satisfied the senior
mortgage without actual notice of the materialman's liens
claimed by Lawson and that, therefore, the lenders should be
treated as assignees of the senior mortgage.
This Court has addressed notice in the context of
materialman's liens. In Starek v. TKW, Inc., 410 So. 2d 35
(Ala. 1982), overruled on other grounds, Ex parte Grubbs, 571
So. 2d 1119 (Ala. 1990), the purchasers bought a house from
a builder. The purchasers obtained a mortgage from a lending
company in order to buy the house. Unknown to the purchasers,
the builder had failed to pay one of its suppliers that had
provided materials for the construction of the house, even
though the builder had signed an affidavit stating that he had
paid all materialmen. The builder filed a petition in
bankruptcy. The unpaid supplier filed a lien against the
property. This Court noted that although the general rule of
law protects a purchaser who is without notice of the
existence of a lien, a lien filed on a new building does have
priority over a purchaser, regardless of actual notice. "This
is true because a purchaser of a new building has constructive
notice that material used to build the structure may not be
1060206
16
paid for. Therefore, one who purchases a new home prior to
the running of the six-month statute of limitations is put on
constructive notice that the filing of a lien is still
statutorily permissible." 410 So. 2d at 36-37 (emphasis
added).
We hold that the constructive notice supplied by the
materialman's lien statute defeats the lenders' equitable-
subrogation claim. The materialman's lien statutes "are an
expression of legislative intent that should stay the hand of
equity in this situation. If we held otherwise, we would
violate the equitable maxim that equity follows the law."
Richards v. Security Pacific Nat'l Bank, 849 P.2d 606, 611
(Utah 1993)(holding that under Utah's mechanic's lien statute
a subsequent lender had constructive notice of the intervening
mechanic's lien so that the subsequent lender was not entitled
to use the doctrine of equitable subrogation to defeat the
mechanic's lien). In determining the meaning of a statute,
this Court looks to the plain meaning of the words as written
by the legislature, and the legislature, in § 35-11-211,
clearly stated that a materialman's "lien as to the land and
buildings or improvements thereon, shall have priority over
1060206
17
all other liens, mortgages or incumbrances created subsequent
to the commencement of the work on the building or
improvement." (Emphasis added.)
In Bank of America, N.A. v. Prestance Corp., 160 Wash. 2d
560, 160 P.3d 17 (2007), the Washington Supreme Court held, as
a matter of first impression, that it would adopt the approach
of the Restatement (Third) of the Law of Property § 7.6
(1997), under which a refinancing mortgagee's actual or
constructive
knowledge
of
intervening
liens
does
not
automatically preclude a court from applying the doctrine of
equitable subrogation. The Washington court quoted with
approval from Ex parte AmSouth Mortgage Co., 679 So. 2d 251,
255-56 (Ala. 1996), the following: "'If all persons who
negligently confer an economic benefit upon another are
disqualified
from
equitable
relief
because
of
their
negligence, then the law of restitution, which was conceived
in order to prevent unjust enrichment, would be of little or
no value'" and "'"[O]ne is not penalized for lack of care
unless this results in harm to someone else"'"(quoting
1060206
In AmSouth Mortgage, a mother bought a house for the use
1
and benefit of her daughter, paying off the seller's equity
and assuming an existing mortgage. The mother and daughter
understood that as soon as she was able, the daughter would
refinance the loan in her own name. Subsequently, the
daughter applied for a loan from AmSouth, and the mother's
mortgagor paid off the mother's loan. As part of the
refinancing, the mother executed a warranty deed conveying
title to herself and the daughter. However, as a result of
the closing attorney's negligence, only the daughter signed
the new note and mortgage from AmSouth. Less than a month
after the closing, the daughter died, and the mother claimed
to be the owner of an undivided one-half interest in the
property as a tenant in common. She sued AmSouth, seeking a
sale of the property and a division of the proceeds. The
trial court determined that the mother was the sole owner of
the property but that her ownership was subject to a mortgage
in favor of AmSouth. The Court of Civil Appeals reversed the
trial court's judgment, holding that because AmSouth (through
its attorney) had been negligent and the mother was free from
fault, AmSouth was not entitled to a mortgage on the property.
The Court of Civil Appeals also concluded that the mother
owned an undivided one-half interest in the property. This
Court reversed the judgment of the Court of Civil Appeals,
holding that AmSouth's negligence in failing to discover that
the mother was a one-half owner of the property and in failing
to have the mother sign the new mortgage did not bar
restitution.
18
Restatement of the Law of Restitution § 59 cmts. at 232
(1937)).1
We are aware of the approach in the Restatement, but it
is not necessary for this Court to embrace that approach in
this case because a mechanic's/materialman's lien falls within
an exception as set out in the Restatement. Illustration no.
1060206
19
30, Restatement (Third) of the Law of Property § 7.6, cmt. f
(1997), provides:
"30. Mortgagor owns Blackacre subject to a
mortgage held by Mortgagee-1. Mortgagor obtains a
loan from Mortgagee-2 for the purpose of discharging
Mortgagee-1's mortgage. Mortgagee-2 makes the loan
and disburses the proceeds to pay and discharge
Mortgagee-1's mortgage. A satisfaction of Mortagee-
1's mortgage is recorded in the public records.
However, Mortgagee-2's mortgage is not recorded
until several days later. During the period between
recordation
of
the
satisfaction
and
the
new
mortgage, Mechanic, a contractor hired by Mortgagor,
commences work under a contract to build a house on
Blackacre. Mortgagor fails to pay Mechanic, who
records a notice of mechanics lien on Blackacre.
Under applicable law, such liens take their priority
from the date work on the contract commenced. A
court is warranted in finding that a grant of
subrogation to Mortgagee-2 would be unjust to
Mechanic,
and
upon
such
a
finding
may
deny
Mortgagee-2's subrogation claim."
The Court of Civil Appeals contends that Lawson would be
receiving
a
"windfall" if
the lenders' purchase-money
mortgages were not subrogated to the builder's construction
loan. If we held against Lawson, however, the builder would
receive the windfall. The builder would have the value of
Lawson's work without having paid anything for it. The
legislature created a specific statutory scheme in which a
materialman's lien is given priority over a subsequently
created mortgage. The lenders who loaned the money to the
1060206
The lenders argue that the subcontractors could have
2
protected themselves by "(1) a credit check on the general
contractor; (2) agreement with the contractor's lender to
require joint checks to the subcontractor and the contractor
for work done by the subcontractor; (3)escrow of earmarking of
loan funds for the benefit of the subcontractor; (4) mortgage
on the personal residence of the contractor; (5) letters of
credit; (6) payment bond; (7) individual guarantees from
principals of the contractor; (8) advances from the contractor
for work or materials; and (9) criminal indictments for
theft." (Lenders' brief, p. 16.) It is also true that the
lenders could have obtained a subrogation agreement or
assumed the rights of the earlier lender by an assignment of
the construction mortgage.
20
purchasers in the present case are sophisticated mortgage
companies that could have easily protected their interests.2
Based on the statutory preference given to materialmen, it is
the commercial lenders who bear the burden of protecting
themselves.
Conclusion
The judgment of the Court of Civil Appeals is reversed,
and the cause is remanded for proceedings consistent with this
opinion.
REVERSED AND REMANDED.
Cobb, C.J., and See, Woodall, Stuart, Smith, and Parker,
JJ., concur.
Lyons, J., concurs in part and concurs in the result.
Murdock, J., recuses himself.
1060206
21
LYONS, Justice (concurring in part and concurring in the
result).
I concur based on the recognition in the main opinion of
the statutory mandate for priority of liens over subsequent
encumbrances as set forth in § 35-11-211(a), Ala. Code 1975,
and the obligation of equity to follow the law. See Moulton v.
Reid, 54 Ala. 320, 324 (1875) ("Equity follows the law, and
'when a rule, either of common, or statute law, is direct, and
governs the case with all its circumstances, or the particular
point, a court of equity is as much bound by it as a court of
law, and can as little justify a departure from it.'--1
Story's Eq. § 64." (cited with approval in Turner v. Cooper,
347 So. 2d 1339, 1346-47 (Ala. 1977))).
I concur in the result as to the discussion in the main
opinion of the Restatement of the Law of Restitution § 59
(1937). I would conclude that it is simply unnecessary to
decide in this case whether the principles there announced are
sound and susceptible of application, notwithstanding § 35-11-
211(a), because, even if we were to embrace them, illustration
no. 30 of the Restatement (Third) of the Law of Property §
7.6, cmt. f (1997), quoted in the main opinion, recognizes
this Court's authority to deny equitable subrogation to a
1060206
22
mortgagee so as to prevent unfairness to a holder of a
mechanic's lien. The unfairness in this proceeding stems from
the status of a mechanic's lienholder when subordinated to a
construction mortgage with an indebtedness of limited duration
being substantially more advantageous to the lienholder than
subordination
to
the
typical
purchase-money
mortgage
authorizing repayment over a term of many years. | July 18, 2008 |
f5d06af9-48b3-4250-8a6f-30d3fb55d27c | ClimaStor IV, L.L.C. v. Marshall Construction, L.L.C. | N/A | 1051833 | 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
_________________________
1051833
_________________________
ClimaStor IV, L.L.C.
v.
Marshall Construction, L.L.C.
Appeal from Montgomery Circuit Court
(CV-05-9)
BOLIN, Justice.
ClimaStor IV, L.L.C. ("ClimaStor"), appeals from an order
of the Montgomery Circuit Court denying its motion to compel
arbitration.
Facts and Procedural History
1051833
2
On July 5, 2002, ClimaStor, a Louisiana limited liability
company, contracted with Goodwyn, Mills, & Cawood, Inc.
("GMC"), an architectural and engineering firm, to design an
80,000-square-foot climate-controlled storage facility to be
constructed in Montgomery. On January 21, 2003, ClimaStor
entered into a contract with Marshall Construction, L.L.C.
("Marshall"), an Alabama limited liability company, to
construct the climate-controlled storage facility designed by
GMC for a contract price of $1,855,900. The contract between
ClimaStor and GMC required GMC to administer the construction
contract. The contract between ClimaStor and Marshall
required
Marshall
to
have
substantially
completed
construction
of the storage facility by July 4, 2003. The contract also
contained the following arbitration agreement:
"4.6.1 Any Claim arising out of or related to
the Contract, except, Claims relating to aesthetic
effect and except those waived as provided for in
Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall,
after decision by the Architect [GMC] or 30 days
after submission of the Claim to the Architect, be
subject to arbitration. Prior to arbitration, the
parties shall endeavor to resolve disputes by
mediation in accordance with the provisions of
Paragraph 4.5.
"4.6.2 Claims not resolved by mediation shall be
decided by arbitration which, unless the parties
mutually agree otherwise, shall be in accordance
1051833
3
with the Construction Industry Arbitration Rules of
the American Arbitration Association currently in
effect. The demand for arbitration shall be filed
in writing with the other party to the Contract and
with the American Arbitration Association, and a
copy shall be filed with the Architect."
After Marshall had completed construction of the storage
facility
and
ClimaStor had taken possession, Marshall
submitted its final two applications for payment to ClimaStor,
each of which had been approved by GMC, as the administrator
of the construction contract. However, ClimaStor withheld
payment of the final two applications because of certain
alleged deficiencies in the construction of the storage
facility.
On July 1, 2004, Marshall filed in the Probate Court of
Montgomery County a verified statement of lien against
ClimaStor in the amount of $114,548.15 plus interest. On
January 3, 2005, Marshall sued ClimaStor in the Montgomery
Circuit Court under § 35-11-222, Ala. Code 1975, seeking to
satisfy its lien.
On February 8, 2005, ClimaStor's Louisiana-based counsel
notified Marshall's counsel by letter that ClimaStor would
"take steps to have the litigation stayed and the matter
referred to arbitration" in accordance with the terms of the
1051833
4
contract between ClimaStor and Marshall. However, rather than
have
the
matter
stayed
and
referred
to
arbitration,
ClimaStor's Alabama counsel, on February 10, 2005, filed a
notice of removal to the United States District Court for the
Middle District of Alabama. ClimaStor specifically stated in
its notice of removal that the removal was being filed "with
full reservation of any and all defenses, objections and
exceptions, including its right to seek arbitration of the
claims asserted in the Complaint ...."
On February 17, 2005, ClimaStor filed an answer and a
counterclaim in the United States District Court for the
Middle District of Alabama. ClimaStor specifically stated
that in submitting its answer, it was "reserving all of its
rights and defenses, including its right to seek arbitration
of the claims asserted in the Complaint ...." ClimaStor also
asserted in paragraph 11 of its answer the following:
"The Complaint is premature in light of the
terms of [Marshall's] contract with ClimaStor which
provides for arbitration. This action should be
dismissed or, in the alternative, stayed, pending
final, binding arbitration between ClimaStor and
Marshall."
ClimaStor alleged in its counterclaim that Marshall had
breached the construction contract by failing to achieve
1051833
5
substantial completion of the project by July 4, 2003; by
failing to construct the storage facility according to the
plans, specifications, and building codes; by failing to
construct a storage facility that was free from defects; and
by failing to make permanent repairs to cure the defects.
ClimaStor further asserted in the counterclaim that it had
withheld payment of the balance due Marshall under the
construction contract. ClimaStor expressly stated in the
counterclaim that it was asserting the counterclaim "without
intending to waive, and expressly reserving, its right to have
the claims asserted by Marshall and the claims asserted in
this counterclaim decided by final, binding arbitration."
On
March
14,
2005,
Marshall
answered
ClimaStor's
counterclaim and asserted counterclaims against ClimaStor
alleging breach of contract and failure to make timely
payments pursuant to § 8-29-2 et seq., Ala. Code 1975.
Marshall also moved on that same date to have the matter
remanded to the Montgomery Circuit Court.
On March 29, 2005, ClimaStor filed a memorandum in
opposition to Marshall's motion to remand. On April 5, 2005,
Marshall filed a reply to ClimaStor's memorandum in opposition
1051833
6
to the motion to remand. On May 24, 2005, the United States
District Court entered an order finding that ClimaStor had
failed to sufficiently demonstrate diversity of citizenship
necessary for jurisdiction in the district court. However,
the district court allowed ClimaStor the opportunity to submit
supplemental pleadings disclosing its citizenship and that of
Marshall. On June 1, 2005, ClimaStor filed its supplemental
memorandum in opposition to the motion to remand. On June 8,
2005, the United States District Court entered an order
granting Marshall's motion to remand.
On August 23, 2005, ClimaStor's counsel again notified
Marshall's counsel by letter that ClimaStor would "take steps
to have the litigation stayed and the matter referred to
arbitration" in accordance with the terms of their contract.
On September 19, 2005, ClimaStor filed demands for arbitration
against both Marshall and GMC with the American Arbitration
Association seeking damages totaling $787,431.46.
On October 4, 2005, Marshall moved the circuit court to
for a temporary restraining order and a preliminary injunction
enjoining ClimaStor and the American Arbitration Association
from participating in arbitration proceedings. Marshall
1051833
7
contended that ClimaStor had waived its right to arbitration
by substantially invoking the litigation process. On that
same date, the circuit court entered an order granting
Marshall's temporary restraining order.
On October 7, 2005, ClimaStor moved the circuit court to
stay the proceedings and to compel arbitration. On November
1, 2005, ClimaStor filed its brief in opposition to Marshall's
motion for a preliminary injunction and in support of its
motion to compel arbitration. On that same day, Marshall
filed its brief and evidentiary submission in opposition to
the motion to stay and to compel arbitration. On November 7,
2005, Marshall filed its response to ClimaStor's brief in
opposition to the motion for a preliminary injunction and in
support of the motion to compel arbitration.
Following a hearing, the circuit court, on November 8,
2005, ordered the parties to mediate their claims. Mediation
was unsuccessful. Thereafter, the circuit court set for
hearing the still pending motions for a preliminary injunction
and to compel arbitration. Each party filed a supplemental
submission in support of its respective motion. Following a
hearing, the circuit court, on August 7, 2006, entered an
1051833
Marshall does not dispute that a "contract calling for
1
arbitration" exists and that that contract "evidences a
transaction affecting interstate commerce." See Elizabeth
Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala. 2003).
8
order denying ClimaStor's motion to stay the proceedings and
to compel arbitration, finding that ClimaStor had waived its
right to arbitration. This appeal followed.
Standard of Review
No ore tenus testimony was presented to the trial court;
therefore, "'the trial court is in no better -- or different
-- position than this Court to decide the legal significance
of a party's conduct,'" Hales v. ProEquities, Inc., 885 So. 2d
100, 105 (Ala. 2003)(quoting Karl Story Endoscopy-America,
Inc. v. Integrated Med. Sup., Inc., 808 So. 2d 999, 1008 (Ala.
2001)), and we review de novo the trial court's determination
that a party has waived its right to arbitration.
Discussion
The sole issue before this Court on appeal is whether
ClimaStor waived its right to arbitration by substantially
invoking the litigation process. This Court has stated:
1
"Our review of the issue whether a party has
waived its right to arbitration by substantially
invoking the litigation process is governed by the
standard enunciated in Companion Life Insurance Co.
1051833
9
v. Whitesell Manufacturing, Inc., 670 So. 2d 897,
899 (Ala. 1995):
"'It is well settled under Alabama law
that a party may waive its right to
arbitrate a dispute if it substantially
invokes the litigation process and thereby
substantially
prejudices
the
party
opposing
arbitration.
Whether
a
party's
participation in an action amounts to an
enforceable
waiver
of
its
right
to
arbitrate
depends
on
whether
the
participation bespeaks of an intention to
abandon the right in favor of the judicial
process and, if so, whether the opposing
party would be prejudiced by a subsequent
order
requiring
it
to
submit
to
arbitration. No rigid rule exists for
determining what constitutes a waiver of
the right to arbitrate; the determination
as to whether there has been a waiver must,
instead, be based on the particular facts
of each case.'
"Both substantial invocation of the litigation
process and prejudice must be present to establish
waiver. Ex parte Merrill Lynch, Pierce, Fenner &
Smith, Inc., 494 So. 2d 1 (Ala. 1986). Because of
the strong federal policy applicable to arbitration
proceedings set forth in the Federal Arbitration
Act, 9 U.S.C. § 1 et seq., one seeking to establish
a waiver of arbitration bears a heavy burden.
SouthTrust Bank v. Bowen, 959 So. 2d 624 (Ala.
2006); Mutual Assurance, Inc. v. Wilson, 716 So. 2d
1160 (Ala. 1998)."
Paw Paw's Camper City, Inc. v. Hayman, 973 So. 2d 344, 347
(Ala. 2007).
Marshall argues that ClimaStor waived its right to
arbitration by removing the lien action to federal court; by
1051833
10
filing an answer and asserting a counterclaim to be determined
"at trial"; by opposing remand of the case to the Montgomery
Circuit Court; by failing to move to compel arbitration in the
federal district court; and by waiting approximately four
months following remand to move the circuit court to compel
arbitration. Relying on this Court's decision in U.S. Pipe &
Foundry Co. v. Curren, 779 So. 2d 1171 (Ala. 2000), ClimaStor
argues that it did not substantially invoke the litigation
process. In Curren, the plaintiff sued his employer, U.S.
Pipe and Foundry Company, Inc., alleging conversion, fraud,
and breach of contract, all related to its administration of
a payroll-deduction plan that the plaintiff had enrolled in
when he was first employed by U.S. Pipe. U.S. Pipe answered
the complaint asserting the following affirmative defense:
"[The plaintiff's] claims under the LMRA [Labor Management
Relations Act of 1947] are barred by his failure to utilize
the grievance and arbitration procedure contained in the
collective bargaining agreements between U.S. Pipe and the
union which represented [the plaintiff] and other bargaining
unit employees." 779 So. 2d at 1172. U.S. Pipe removed the
case to the United States District Court for the Northern
District of Alabama, contending that the payroll-deduction
1051833
11
plan was covered under a November 1995 collective-bargaining
agreement entered into by U.S. Pipe and the United Steel
Workers of America. In its notice of removal and accompanying
brief, U.S. Pipe referred to the arbitrability of the
plaintiff's
claims,
stating
that
the
"'grievance
and
arbitration
provisions
of
the
Collective
Bargaining
Agreements
applicable to [the plaintiff's] employment with U.S. Pipe
expressly reach "all disputes that may arise between them
relevant to the provisions" of the Agreements.'" 779 So. 2d
at 1173.
The parties' attorneys reached a scheduling agreement
pursuant to Rule 26(f), Fed. R. Civ. P., to govern the
litigation of the matter in the federal district court. The
scheduling agreement indicated that the matter would be ready
for trial by June 1998. The scheduling agreement was signed
by U.S. Pipe's attorney and was filed with the federal
district court. Thereafter, the federal district court
remanded the case to the Jefferson Circuit Court upon the
plaintiff's motion. Curren, supra.
U.S. Pipe moved the trial court to stay the proceedings
and to compel arbitration. The plaintiff opposed the motion
to compel arbitration, arguing, among other things, that U.S.
1051833
12
Pipe had waived its right to compel arbitration. The trial
court entered an order denying U.S. Pipe's motion to compel
arbitration, and U.S. Pipe appealed.
The plaintiff argued on appeal that U.S. Pipe had waived
any right it had to compel arbitration by failing to move in
the federal court to compel arbitration. The plaintiff relied
on Ex parte Hood, 712 So. 2d 341 (Ala. 1998), a case Marshall
also relies on. This Court addressed the issue of waiver by
distinguishing Ex parte Hood as follows:
"The present case, while factually somewhat
similar, is clearly distinguishable from Ex parte
Hood. In Ex parte Hood, the defendant failed to
give notice of its intention to enforce the
arbitration agreement until three months after the
case had been removed to the federal court and two
months after the parties' counsel had met to discuss
how the federal litigation would proceed. This
Court stated:
"'We might assume that if [the defendant]
Golden had immediately followed its removal
with service of its answer pleading an
arbitration defense, such action would have
been sufficient to put Hood on notice that
Golden still intended in the federal court
to reserve its right to seek arbitration.
Cf. Terminix Int'l Co. v. Jackson, 669 So.
2d 893, 896 (Ala. 1995) (holding that the
plaintiff did not establish a waiver where
the
defendant's
answer
had
put
the
plaintiff on notice of an arbitration
defense). Filing an answer at such a time
might have indicated that Golden intended
to pursue arbitration instead of a federal
1051833
13
judicial remedy, and it would have given
Hood the opportunity to avoid spending the
resources necessary to have the case
remanded to the state court for a trial.
As it was, Golden removed the case to the
federal court and proceeded as if it was
preparing for a judicial resolution of
Hood's claim. Golden's answer pleading the
arbitration agreement simply came too late,
after Golden had substantially invoked the
judicial
process,
to
the
substantial
prejudice of Hood.'
"712
So.
2d
at
346.
Under
the
particular
circumstances of Ex parte Hood, this Court concluded
that the defendant, by its unexplained delay, after
removal, in seeking to resolve the controversy
through arbitration, had waived its right to compel
arbitration.
"As noted earlier in this opinion, U.S. Pipe
asserted the affirmative defense of arbitration in
its initial answer. See Ex parte Merrill Lynch,
Pierce, Fenner & Smith, Inc., 494 So. 2d 1, 3 (Ala.
1986)(indicating that a party clearly has not waived
the right to arbitrate if it has asserted that right
in its initial answer on the merits). U.S. Pipe
referred to arbitration in its notice of removal and
in its discovery-plan report. We can find no
persuasive
evidence indicating that U.S. Pipe
intended to waive or abandon its right to seek
arbitration
in
accordance
with
the
grievance
procedure set forth in the [collective-bargaining
agreement]."
Curren, 779 So. 2d at 1174-75. See also the companion case
of Jim Walter Res., Inc. v. Argo, 779 So. 2d 1167 (Ala. 2000).
We find Curren dispositive of the issue presented in this
case. Before ClimaStor removed the case to the federal
1051833
14
district court, it notified Marshall of its intent to "take
steps to have the litigation stayed and the matter referred to
arbitration" in accordance with the terms of the contract
between ClimaStor and Marshall. ClimaStor specifically
referenced arbitration in its notice of removal by stating
that the case was being removed "with full reservation of any
and all defenses, objections and exceptions, including its
right to seek arbitration of the claims asserted in the
Complaint ...." Promptly after removing the case to the
federal district court, ClimaStor filed its initial answer,
again "reserving all of its rights and defenses, including its
right to seek arbitration of the claims asserted in the
Complaint ...." More importantly, like U.S. Pipe in Curren,
ClimaStor asserted its arbitration defense in its initial
answer, stating:
"The Complaint is premature in light of the
terms of [Marshall's] contract with ClimaStor which
provides for arbitration. This action should be
dismissed or, in the alternative, stayed, pending
final, binding arbitration between ClimaStor and
Marshall."
Although ClimaStor asserted a counterclaim against
Marshall, it did so with the express reservation that it was
not waiving its right to have the claims asserted by Marshall
1051833
We note that U.S. Pipe had participated in the discovery
2
process in Curren, supra, to the extent that it participated
in a discovery planning conference, agreed to a comprehensive
discovery schedule, and submitted the discovery schedule to
the federal district court indicating that the case would be
ready for trial in June 1998.
15
and the claims asserted in the counterclaim decided by
arbitration. Further, "[m]erely answering on the merits,
asserting a counterclaim (or cross-claim) or participating in
discovery, without more, will not constitute a waiver."
Voyager Life Ins. Co. v. Hughes, 841 So. 2d 1216, 1219
(Ala. 2001) (internal quotation marks omitted). In this case,
ClimaStor simply answered the complaint, in which it raised
its arbitration defense, and asserted a counterclaim against
Marshall. ClimaStor did not engage in any discovery or any
other pretrial activity.2
Marshall relies substantially on Ocwen Loan Servicing,
L.L.C. v. Washington, 939 So. 2d 6 (Ala. 2006). In Ocwen
Loan, this Court summarized the following pretrial procedure
before holding that Ocwen had waived its right to arbitration:
"Before filing its motion to compel arbitration,
Ocwen, on September 27, 2004, removed the action to
the United States District Court for the Southern
District of Alabama and filed an answer in that
court at the time of removal. The answer did not
assert
Ocwen's
right
to
arbitration.
Ocwen
requested that the action be transferred to a
1051833
16
pending multidistrict litigation in the United
States District Court for the Northern District of
Illinois. Ocwen thereafter filed in the federal
court in Alabama a motion to stay the proceedings
pending a decision from the Judicial Panel on
Multidistrict Litigation. [The plaintiff] filed an
opposition to the motion for a stay. The Judicial
Panel on Multidistrict Litigation then entered a
conditional transfer order transferring the action
to the federal court in Illinois. The transfer
order provided that it would not become effective
until it had been filed in that federal court and
that the transmittal of the order would be stayed
for 15 days from its entry, with the stay continued
until further order of the panel if any party
opposed the transfer. [The plaintiff] filed in the
federal court in Alabama a brief opposing the
transfer and a motion to remand the action to the
state court. Ocwen filed in the federal court in
Alabama responses to [the plaintiff's] opposition to
the motion to stay, opposition to the motion to
transfer, and motion to remand. The federal court
in Alabama initially denied [the plaintiff's] motion
to remand. [The plaintiff] then filed a motion to
reconsider, which was granted, and the court entered
an order remanding the action to the state court.
However, on the day of the federal court's order
remanding the action to the state court, Ocwen
obtained leave to file a brief in opposition to the
motion to reconsider, thereby apparently suspending
the operation of the remand order. Ocwen thereafter
filed a response to [the plaintiff's] motion to
reconsider, and [the plaintiff] filed a reply to
Ocwen's response. The federal court in Alabama
ultimately remanded the action to the state court on
January 19, 2005, several days after its initial
order
granting
[the
plaintiff's]
motion
for
reconsideration and remanding the action. Ocwen
filed its motion to compel arbitration over two
months later on March 23, 2005."
939 So. 2d at 14-15 (emphasis added).
1051833
17
In
finding
that
Ocwen
had
waived
its
right
to
arbitration, this Court relied significantly on Ocwen's
failure to assert its arbitration defense in its initial
answer. This Court stated:
"The record is devoid of any evidentiary basis for
Ocwen's failure to assert its right to arbitrate
when it filed its answer in the federal court. For
purposes of this proceeding, it must therefore be
assumed that Ocwen learned of its right to arbitrate
soon after the commencement of this action. Had
Ocwen seasonably invoked its right to arbitrate when
it served its answer in the federal proceeding in
Alabama in September 2004, instead of waiting until
March 2005, two months after the federal court
remanded the case to the state court, it would have
given [the plaintiff] the option of avoiding the
incurrence of the costs attendant to the various
rounds of motions and briefs filed in connection
with the remand of this proceeding to the state
court for what [the plaintiff] had the right to
conclude would be a trial in a judicial, rather than
an arbitral, forum. As was true in [Ex parte] Hood,
[712 So. 2d 341 (Ala. 1998),] '[f]iling an answer
[pleading an arbitration defense] at such a time
[removal] might have indicated that [Ocwen] intended
to pursue arbitration instead of a federal judicial
remedy, and it would have given [the plaintiff] the
opportunity
to
avoid
spending
the
resources
necessary to have the case remanded to the state
court for a trial.' 712 So. 2d at 346."
939 So. 2d at 16-17. Additionally, Ocwen Loan is further
distinguishable from this case in that Ocwen evidenced an
intent to abandon its right to arbitration with its
considered efforts "to pursue its defense in a judicial forum
1051833
18
[multidistrict litigation] in the federal court in Illinois."
Ocwen Loan, 939 So. 2d at 15. Here, ClimaStor simply removed
the case to federal court and then opposed remand based on
diversity of jurisdiction.
Conclusion
Based on the foregoing reasons, we conclude that Marshall
failed to establish that ClimaStor had waived its right to
arbitration by substantially invoking the litigation process.
Accordingly, we reverse the judgment of the trial court and
remand the case for further proceedings consistent with this
opinion. We pretermit discussion of whether Marshall would be
prejudiced by an order requiring it to submit to arbitration.
REVERSED AND REMANDED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | September 5, 2008 |
ed048e7c-80b8-47cf-9c9e-8e5871a784f8 | Chandrakant Choksi v. Manan Shah and Jankhana Shah | N/A | 1070769 | 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
____________________
1070769
____________________
Chandrakant Choksi
v.
Manan Shah and Jankhana Shah
Appeal from Jackson Circuit Court
(CV-05-81)
STUART, Justice.
Manan Shah and Jankhana Shah sued Chandrakant Choksi in
the Jackson Circuit Court after Choksi failed to fulfill the
terms of a settlement agreement he had entered into with the
Shahs that required him to pay them $800,000. After a trial,
1070769
2
the jury returned a verdict in favor of the Shahs, awarding
them $800,000. The trial court subsequently entered a
judgment on that verdict, adding to the amount an additional
$110,729 for prejudgment interest. We affirm.
I.
The defendant, Choksi, owns and leases multiple gasoline
service stations and convenience stores in north Alabama and
surrounding states. Sometime in 2000 or 2001, a mutual friend
introduced Choksi to Manan Shah, and Choksi subsequently hired
Manan to work at a gas station and convenience store in
Madison. In November 2003, Choksi transferred Manan to a
different gas station and convenience store in Scottsboro
(hereinafter referred to as "The Pantry"). In May 2004, Manan
entered into an agreement with Choksi pursuant to which Manan
would lease The Pantry from Choksi and operate it. During
this same period, Manan also operated another gas station in
the same immediate area, Hi-Tech Fuel, which was not owned by
Choksi.
On occasion, Jankhana Shah, Manan's wife, would work at
The Pantry when Manan had to leave to tend to Hi-Tech Fuel or
to take care of other business. One day in October 2004,
1070769
3
Jankhana was working at The Pantry when Choksi stopped by to
collect the monthly lease payment. Jankhana alleges that,
while he was in the store, Choksi grabbed, touched, and
attempted to kiss her. Jankhana did not tell Manan about
Choksi's behavior at that time; however, after Choksi behaved
in a similar manner when he came to pick up the next month's
lease payment, Jankhana told Manan what had occurred.
Manan thereafter purchased an audio-video recording
surveillance system and, with the help of a friend Bipin
Patel, who operated a gas station in Fort Payne and who was
also a business associate of Choksi's, installed the recording
system in the ceiling of The Pantry. On December 26, 2004,
Choksi went to The Pantry to collect the December lease
payment. Choksi again attempted to hug, touch, and kiss
Jankhana, at one point even trying to pull her into a closet.
Unbeknownst to him, however, the recording system captured the
entire episode on tape.
On December 29, Manan contacted Choksi and told him he
had a videotape of Choksi harassing his wife during his visit
to The Pantry on December 26. Manan also told Choksi that he
was terminating his lease of The Pantry and that Choksi should
1070769
At trial, Manan and Choksi each testified that the other
1
had invited Patel to the meeting.
4
come and pick up the keys. Choksi subsequently traveled to
The Pantry, and, once he arrived, Patel, who was also there,
took him outside and showed him several still photographs that
had been extracted from the videotape. Choksi then agreed to
1
let Manan terminate the lease but asked him to continue
operating The Pantry until Choksi could find another tenant.
Manan agreed to do so and continued operating The Pantry until
January 15, 2005.
On January 20, 2005, Manan and Choksi met at the office
of the Alcoholic Beverage Control Board in Huntsville to
transfer The Pantry's permit to sell alcohol from Manan to
Choksi. After doing so, Manan and Choksi had a conversation
in Choksi's automobile during which Choksi expressed concern
about his family's reaction to the incidents with Jankhana and
offered to let Manan operate one of his gas stations and
convenience stores for five years rent free. Their
conversation ended, however, when Manan told Choksi that he
had retained an attorney and that he was going to sue Choksi
for $1 million. Feeling that he was being blackmailed, Choksi
1070769
The contracts that were executed were written in the
2
parties' native language of Gujarati. The translations quoted
here were provided by the defense, but Manan agreed at trial
that the translations were correct in all material respects.
The suffixes "bhai" (men) and "ben" (women) are
3
honorifics sometimes added to names in Gujarat culture.
5
consulted an attorney the next day, who advised him to meet
with the Alabama Bureau of Investigations ("ABI"). Choksi
subsequently met with an ABI investigator, as well as with
representatives from the district attorney's offices in both
Jackson and DeKalb Counties. Meanwhile, Choksi continued to
negotiate with Manan, using Patel as an intermediary.
Pursuant to instructions given him by the ABI, Choksi recorded
many of the telephone calls between him and Patel.
On Saturday, February 12, 2005, Choksi and Manan met at
Patel's gas station in Fort Payne to formalize an agreement
Patel had helped them reach. That agreement was memorialized
in two separate handwritten contracts, both witnessed by
Patel. The contract signed by Choksi reads as follows:
2
"Confession Note
"I, Chandrakant Choksi, resident of Huntsville,
Alabama, aged 40 years, with God as my witness admit
that I have insulted and hurt the self-respect of
the wife of Mananbhai Shah, Jhankhanaben,
aged 23
[3]
years,
and
her
husband
Mananbhai
by
taking
inappropriate liberties with her body at their store
1070769
6
at the Shell Gas Station in Scottsboro. They
possess video cassettes and photographs as a proof
for this crime. As a retribution for bodily and
mental damage and insult and also to protect the
honor of my family and myself from going to police
or to court, I have agreed with my own free will and
according to Hindu religion law, to pay Mananbhai
and his wife Jhankhanaben $800,000 with the help of
my friend Bipinbhai K. Patel as an intermediary
which is agreed upon by me and Mananbhai and
Jhankhanaben. As soon as Mananbhai and Jhankanaben
receive the compensation for this crime by May 30,
2005; they will be required to return all the
cassettes and photographs to Chandrakant Choksi.
"After this contract, neither I, nor Mananbhai
nor Jhankhanaben will have a right to file a case or
sue for money or interfere in each other's lives,
which
is
agreed
upon
by
me,
Mananbhai
and
Jhankhanaben."
The contract signed by Manan provided as follows:
"Contract
"I, Manan Shah, and my wife, Jhankhana Shah,
today, with God and Bipinbhai Patel, my friend, as
witness, agree that according to the contract by
Chandrakantbhai
Choksi,
that
after
accepting
$800,000 as retribution, we or our family [has] no
right to go to court for money or to the police
station and no right to slander Chandrakantbhai
Choksi in the society or in the family. Also, as
soon as we receive the compensation we will be
required to return all videos, CDs, photographs to
Chandrakantbhai."
After the contracts were completed, Choksi gave Manan three
postdated checks for $100,000, $50,000, and $50,000, as an
initial payment.
1070769
7
On Monday, February 14, 2005, Choksi stopped payment on
the three checks. He also arranged another meeting for that
date with Manan at Patel's gas station. Choksi led ABI agents
to that meeting, and the agents subsequently questioned Manan
and Patel; however, there is no evidence in the record
indicating that the ABI took any action concerning the
dispute. Choksi thereafter refused to pay Manan the $800,000,
and, on March 23, 2005, the Shahs sued Choksi and his
business, Hartselle Food Mart, Inc., in the Jackson Circuit
Court alleging that Choksi had breached the settlement
contract by refusing to pay them $800,000. Choksi filed an
answer claiming, among other things, that he had signed the
settlement contract under duress after being threatened,
intimidated, and coerced.
On September 10, 2007, the Shahs' case was called for a
jury trial. Choksi and Hartselle Food Mart moved for a
judgment as a matter of law at the conclusion of the Shahs'
case and at the close of all the evidence, but both motions
were denied. On September 13, 2007, the jury returned a
verdict in favor of the Shahs and against only Choksi for
$800,000. The trial court entered a judgment on that verdict
1070769
8
and subsequently added an additional $110,729 to the verdict
for prejudgment interest. The Shahs subsequently moved the
trial court to correct the judgment entered on the jury's
verdict to indicate that that judgment was against Hartselle
Food Mart also. The trial court denied that motion. Choksi
moved the trial court to alter, amend, or vacate its judgment
or, in the alternative, to grant him a new trial; however,
that motion was denied. On February 13, 2008, Choksi filed
his notice of appeal with this Court. We then remanded the
case to the trial court because of the outstanding claims
against Hartselle Food Mart. On remand, the trial court
dismissed those claims.
II.
"In discussing the standard of review in an
appeal from a judgment based on a jury verdict where
the trial court has denied a motion for a new trial,
this Court has stated:
"'"Jury verdicts are presumed correct,
and this presumption is strengthened by the
trial court's denial of a motion for a new
trial. Therefore, a judgment based on a
jury verdict will not be reversed unless it
is 'plainly and palpably' wrong."'
"Tanksley v. Alabama Gas Corp., 568 So. 2d 731, 734
(Ala. 1990) (quoting Davis v. Ulin, 545 So. 2d 14,
15 (Ala. 1989))."
1070769
9
Petty-Fitzmaurice v. Steen, 871 So. 2d 771, 773 (Ala. 2003).
III.
Choksi raises four issues on appeal. First, he argues
that the Shahs' claims against him are barred by statute
because they are, he claims, essentially alienation-of-
affection claims. In Bailey v. Faulkner, 940 So. 2d 247 (Ala.
2006), this Court recognized that § 6-5-331, Ala. Code 1975,
which provides that "[t]here shall be no civil claims for
alienation of affections, criminal conversation, or seduction
of any female person of the age of 19 years or over,"
abolished any claim for damages –- no matter how those claims
are denominated –– based on allegations of interference with
the marriage relationship. Choksi concludes that "[t]he
claims asserted by one spouse against a third party who had
become involved with the other spouse can only be classified
as alienation of affection." (Choksi's brief, p. 25.)
Although Bailey accurately states the law, Choksi's
argument nonetheless fails because the only "involvement"
Jankhana had with Choksi was as an unwilling victim of his
assault; no evidence was submitted indicating that she
welcomed his advances or that she consented to his touching
1070769
10
her. This case is not about an aggrieved husband suing his
wife's paramour, see, e.g., Bailey and D.D. v. C.L.D., 600 So.
2d 219 (Ala. 1992); rather, it is about a husband and wife
suing a third party who had assaulted the wife, who had
preemptively agreed to settle to avoid legal action based on
that assault, and who then allegedly had breached the terms of
the settlement contract. Section 6-5-331 is irrelevant to
such a case.
Choksi's
next
two
arguments
concern
whether
the
settlement contract is enforceable. He first argues that the
writings signed by him and Manan do not form an enforceable
contract because, he claims, he agreed to the settlement only
after he was threatened with criminal prosecution, a civil
lawsuit, and public humiliation. Accordingly, he argues, the
settlement was the product of blackmail or extortion.
Blackmail and extortion are prohibited by law, and, he argues,
as a matter of public policy, contracts that result from
either blackmail or extortion should not be enforced. Choksi
cites Dickerson v. Deno, 770 So. 2d 63 (Ala. 2000), in support
of his argument, a case in which this Court held that an
alleged contract to share lottery winnings was unenforceable
1070769
We note that our decision in Dickerson was based on § 8-
4
1-150, Ala. Code 1975, which specifically provides that "[a]ll
contracts founded in whole or in part on a gambling
consideration are void."
11
because it was, at its core, based on illegal gambling.4
Choksi also argues that the settlement contract should not be
enforced because he entered into it only after being
threatened and while he was under great duress. See Tidwell
v. Tidwell, 505 So. 2d 1236, 1238 (Ala. Civ. App. 1987)
("Alabama recognizes that upon showing of duress or undue
influence
a
party
may
be
relieved
of
contractual
obligations.").
We cannot say, however, that the settlement contract
entered into by Choksi was the product of blackmail or
extortion. The jury heard Choksi's testimony that he signed
the contract only because he felt threatened:
"Q:
Now, you eventually signed this document that
has been marked as plaintiffs' exhibit number
three, which is written in Gujarati, is that
correct?
"A:
Yes, I signed it under duress.
"Q:
Well, now, tell the ladies and gentlemen of the
jury why you signed that document.
"A:
I had that telephone conversation where he
threatened me about, 'if you don't come, I will
1070769
12
bring your partners and all of your employees
into court on my side and you will be alone in
court and I will ruin you with your family and
I will ruin your business and I will ruin you
in society and your church,' which we call
temple, 'and I will send these documents,' you
know, the pictures and the videotapes, 'and I
will send to the Gujarati Times,' which is our
Indian community newspaper, 'and I will send it
to them and I will publish that.' And also he
told me that, 'if you don't pay me, I will do
it my way.' And those words I recorded on tape
and that word hurt my feelings and threatened
me like I've never been threatened like that."
The jury heard this testimony, was charged by the trial court
on the elements of the affirmative defense of duress, and, as
evidenced by the verdict it returned, rejected it. Moreover,
"'[i]t is the well-settled general rule that it is
not duress to institute or threaten to institute
civil suits, or take proceedings in court, or for
any person to declare that he intends to use the
courts wherein to insist upon what he believes to be
his legal rights. It is never duress to do that
which a party has a legal right to do, and the fact
that a threat was made of a resort to legal
proceedings to collect a claim which was at least
valid in part constitutes neither duress nor fraud
such as will avoid liability on a compromise
agreement.'"
Neuberger v. Preferred Acc. Ins. Co. of New York, 18 Ala. App.
72, 74, 89 So. 90, 92 (1921). Considering all the evidence
adduced at trial, including the evidence indicating that
Choksi
was
a
sophisticated
and
educated
businessman
1070769
13
experienced in negotiating contracts, we cannot say that the
verdict returned by the jury was plainly and palpably wrong.
Choksi's final argument is that the Shahs cannot sue him
based on a breach of the settlement contract when they have
breached that settlement contract themselves. See, e.g.,
Southern Energy Homes, Inc. v. Gregor, 777 So. 2d 79, 82 (Ala.
2000) ("A plaintiff cannot simultaneously claim the benefits
of a contract and repudiate its burdens and conditions."). In
his brief to this Court, Choksi states:
"The terms of the 'settlement' agreement stated
that defendant Choksi would pay money to the [Shahs]
and [the Shahs] in turn agreed that they would not
disclose defendant Choksi's actions nor disseminate
the photographs of defendant Choksi's acts to the
public. [The Shahs'] trial testimony admitted that
they repudiated the terms of this agreement with
Choksi by making public disclosures of Choksi's
attempt to have sexual relations with Mrs. Shah by
showing photographs of Choksi's actions to numerous
members of the public."
(Choksi's brief, p. 32.)
It is undisputed that Manan did discuss Choksi's alleged
assault of Jankhana and that he did share photographs of that
incident with other parties. However, contrary to Choksi's
assertion, that behavior did not violate the terms of the
contract Manan signed. That contract provided only that
1070769
Choksi has not argued to this Court that the term
5
"slander," as it is used in the contract executed by Manan,
means anything other than its ordinary legal definition as
explained here, that is, it requires the communication of a
false and defamatory statement.
14
"after accepting $800,000 as retribution, we or our family
[has] no right to go to court for money or to the police
station and no right to slander Chandrakantbhai Choksi in the
society or in the family." Ignoring the fact that the Shahs
never actually received $800,000, there is no evidence
indicating that the Shahs in fact slandered Choksi. Manan may
have showed the videotape and photographs extracted from the
videotape to others; however, Choksi agreed at trial that
"what is on the videotape is what occurred." Slander is a
form of defamation and "[t]ruth is an absolute defense to a
defamation claim." S.B. v. Saint James School, 959 So. 2d 72,
100 (Ala. 2006) (citing Foley v. State Farm Fire & Cas. Ins.
Co., 491 So. 2d 934 (Ala. 1986)). There is no evidence
5
indicating that the Shahs themselves breached the settlement
contract.
IV.
The Shahs sued Choksi alleging breach of contract, and,
after a jury trial, the jury returned a verdict in favor of
1070769
15
the Shahs for $800,000. A judgment was subsequently entered
on that verdict, and Choksi has failed to establish that that
judgment was plainly and palpably wrong. Accordingly, that
judgment is affirmed.
AFFIRMED.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur. | October 17, 2008 |
c69e2dc6-662c-4634-85e4-9883b1e9395b | Felicia D. Brown, as dependent widow and personal representative of the estate of Jeremiah Brown, deceased v. ABUS Kransysteme GmbH | N/A | 1071184 | 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
_________________________
1071184
_________________________
Felicia D. Brown, as dependent widow and personal
representative of the estate of Jeremiah Brown, deceased
v.
ABUS Kransysteme GmbH
Appeal from Morgan Circuit Court
(CV-06-763)
WOODALL, Justice.
Felicia D. Brown, as dependent widow and personal
representative of the estate of Jeremiah Brown, deceased,
appeals from a judgment dismissing for lack of in personam
jurisdiction
her
product-liability
action
against
ABUS
1071184
2
Kransysteme GmbH ("ABUS"), a limited liability company
organized under the laws of the Federal Republic of Germany
and the manufacturer of the component part of a crane that
allegedly malfunctioned, resulting in the death of her
husband. We affirm.
I. Factual Background
On August 2, 2006, Jeremiah Brown was operating a crane
for his employer Steel Related Technology New, LLC ("SRT").
The crane was manufactured by Wolverine Crane & Service, Inc.
("Wolverine"), a Michigan corporation, and was equipped with
a hoist manufactured by ABUS bearing serial number 78838. He
was killed when a wire rope on the hoist snapped, allowing a
beam to fall on him. On October 4, 2006, Felicia Brown sued
ABUS and others asserting claims under the Alabama Extended
Manufacturer's Liability Doctrine and other theories.
On December 20, 2006, ABUS moved to dismiss the claims
against it, arguing that it "lack[ed] minimum contacts with
the State of Alabama sufficient to permit an exercise of in
personam jurisdiction consistent with the Due Process Clause
of the Fourteenth Amendment to the Constitution of the United
States." In support of its motion, ABUS filed the affidavit
1071184
3
of Lothar Bühne, a managing partner of ABUS. The affidavit
stated, in pertinent part:
"3. ABUS does not have any contacts with the State
of Alabama.
"4. ABUS has no offices, factories, real or personal
property, product inventory, bank accounts, or
assets of any kind in the United States of America
or in the State of Alabama.
"5. ABUS has no employees or regular agents anywhere
in the United States of America and no employees or
agents whatsoever in the State of Alabama.
"6. ABUS' sole representative on the North American
continent is located in the Commonwealth of Canada,
and only handles sales in Canada. ABUS has never
had any sales representative relations with any
person or entity in the State of Alabama.
"7. ABUS has not designed, manufactured for, or sold
any ABUS product, including wire rope product, to
the employer of plaintiff's decedent.
"8. ABUS did not send the crane or hoist product
described in the complaint into the United States of
America or into the State of Alabama.
"9. ABUS has had no contacts in or with or any
presence in or any involvement with the State of
Alabama.
"10. ABUS has never purposefully availed itself of
any privilege, benefit or protection afforded by the
laws of the State of Alabama."
On
February
1,
2007,
Brown
moved
to
continue
consideration of ABUS's motion to dismiss, asserting that
1071184
4
resolution of the question of personal jurisdiction should be
deferred until she could "conduct jurisdictional discovery."
More specifically, Brown contended:
"[J]urisdictional discovery might shed information
on how the ABUS hoist got to Alabama, whether it was
designed for the American market, whether it was
designed for the specific Alabama application for
which it was being used, the extent of ABUS'
'subsidiary and partner' distribution network in the
United States, whether it or its network is
servicing the Decedent's employer's needs, and
whether it is otherwise aiming its activities to a
multi-state market that includes Alabama."
On March 7, 2007, the trial court granted Brown's motion.
On March 21, 2007, ABUS's counsel sent a letter to
Brown's counsel; that letter states:
"Yesterday I received a copy of [Brown's] Amended
Complaint and just today received a copy of
[Brown's] First Set of Interrogatories and Requests
for Production of Documents. ... Given that ABUS has
a pending motion to dismiss based on personal
jurisdiction ABUS will not be participating in any
discovery not relating to its personal jurisdiction
defense."
(Emphasis added.)
On approximately April 10, 2007, Brown sent ABUS a
"notice of [Ala. R. Civ. P.] 30(b)(6) deposition of corporate
representative of defendant [ABUS] and request for production
of documents under [Ala. R. Civ. P.] 30(b)(5)" (hereinafter
1071184
5
"the deposition notice"). The deposition notice contained 50
paragraphs
with
subparagraphs
describing
the
requested
information and documents. Approximately 24 of the paragraphs
sought information regarding the sales of ABUS's products "in
the United States," as well as information regarding ABUS's
business contacts "in the United States" or "in North
America." Examples of these paragraphs are as follows:
"1.
Testimony
and
documents
regarding
all
relationships,
agreements
and/or
contracts,
including
but
not
limited
to
distribution
agreements,
service
contracts,
and/or
sales
agreements, [ABUS has] with any natural person,
corporation,
partnership,
proprietorship,
association, organization, group of persons, or any
governmental body or subdivision thereof, company or
other business entity in the United States.
"....
"4.
Testimony
and
documents
related
to
the
distribution of ABUS ... products, including any
crane, hoist, gantry, accessory, component part,
spare part, or other item manufactured, produced,
designed and/or distributed by ABUS ... or any of
its subsidiaries, including but not limited to the
ABUS ... crane/hoist which bears Serial Number 78838
('the subject crane'), in the United States.
"5. Testimony and documents, including but not
limited to invoices, receipts, sales records, sales
ledgers, and/or electronically stored information,
relating to the sales of ABUS Kransysteme GmbH
products made to any natural person, corporation,
partnership,
proprietorship,
association,
organization, group of persons, or any governmental
1071184
Judge Glenn Thompson is the circuit judge presiding over
1
this case.
6
body or subdivision thereof, company or other
business, in the United States.
"6. Testimony and documents which evidence, refer or
relate to all payments received directly or
indirectly, from any person, company or other
business entity in the United States for the
purchase of your products, including but not limited
to the subject crane.
"7. Testimony and documents, including but not
limited
to
all
invoices,
receipts,
records,
electronically
stored
information,
or
other
documentation, regarding shipment, directly or
indirectly, of your products to the United States."
(Emphasis added.) The deposition notice also sought
"[t]estimony and documents, including but not limited to
agreements and/or contracts, describing and/or reflecting
[ABUS's] relationship with [EMH, Inc., an Ohio corporation,
whose principal place of business is Cleveland, Ohio]."
On approximately April 17, 2007, ABUS sent Brown a
letter, stating, in pertinent part:
"In reviewing the proposed deposition topics, I
noticed that a number of these topics have no
relevance to any contacts of ABUS within the State
of Alabama, and some of the other topics are in part
not related to Alabama jurisdiction. Obviously, I
will be filing objections to those topics and/or
parts. If you disagree with those objections and
want Judge Thompson
to review validity of those,
[1]
1071184
7
I will be glad to cooperate with you in getting a
hearing scheduled to address that before the
deposition on jurisdictional contacts.
"....
"In view of this information, if you would like to
revise the topic list and limit it to personal
jurisdiction contacts only, instead of using the
current topic list, ... the deposition can probably
be expedited to some further degree."
(Emphasis in original.)
On May 25, 2007, ABUS filed a notice of objections to the
deposition notice. Typical of the objections was the response
to paragraph six, which stated, in pertinent part: "ABUS
objects to the topic as overly broad insofar as it seeks
information not relevant to alleged contacts by ABUS with the
State of Alabama." (Emphasis added.)
On September 6, 2007, Brown took the deposition of Karl
Rudolph Vom Stein, who was in charge of ABUS's exports.
During the deposition, however, ABUS's counsel instructed Vom
Stein not to answer questions from Brown's counsel regarding
ABUS's nationwide sales or business operations. On September
27, 2007, Brown filed a motion to compel ABUS "to fully and
completely respond to [her deposition notice]."
1071184
8
However, on November 19, 2007, before the trial court
ruled on Brown's motion to compel, ABUS filed a 23-page
affidavit of Vom Stein, in which, as Brown concedes, he "gave
detailed facts ... concerning topics foreclosed by ABUS'
counsel during his deposition." Brown's brief, at 20.
According to Vom Stein, for example, the only entity in the
United States authorized to sell ABUS's products is EMH, Inc.
("EMH"). The pertinent facts of the affidavit were succinctly
summarized by the trial court as follows:
"[Vom Stein] identifie[d] hoist number 78838 as a
model GM 7000 and state[d] that this ABUS model is
not authorized for sale to anyone in the United
States. In addition, Mr. Vom Stein reiterate[d]
that neither ABUS, nor its sole distributor in the
United States, [EMH], sold hoist number 78838 to any
party to this civil litigation and that ABUS did not
sell, deliver, install, service or maintain this
hoist in the State of Alabama and did not sell any
replacement parts for this hoist in the United
States or the State of Alabama.
"Instead, according to Mr. Vom Stein, ABUS
manufactured hoist number 78838 in Germany in the
year 2000 pursuant to a special order by its former
customer,
Kaverit
Steel
and
Cranes,
Ltd.
(hereinafter 'Kaverit'), a Canadian-based crane
manufacturer. Mr. Vom Stein further state[d] the
sale of hoist number 78838 to Kaverit was transacted
in Germany and that prior to this sale 'it was
agreed between ABUS and Kaverit, and Kaverit
acknowledged in writing[,] that Kaverit would not
resell ABUS products to any Kaverit customer in the
United States of America.' ... Sometime after this
1071184
9
sale, hoist number 78838 was acquired by Wolverine
... a crane manufacturing company incorporated in
the State of Michigan that markets its goods and
services in the United States. Thereafter,
Wolverine incorporated hoist number 78838 into a
crane system that was installed at the [SRT]
facility in the State of Alabama. In his affidavit,
Mr. Vom Stein state[d] that ABUS did not sell hoist
number 78838 to Wolverine and also state[d] his
understanding -- based on information obtained in
the course of this litigation -- that Wolverine
purchased this hoist from Kaverit.
"Mr. Vom Stein further state[d] that hoist
number 78838 'was not manufactured in anticipation
of a sale to any kind of purchaser in the State of
Alabama' and that, at the time the hoist was
manufactured for and sold to Kaverit, 'ABUS did not
contemplate that the purchase of an ABUS custom-
ordered hoist by a Canadian crane manufacturer (who
was forbidden to sell ABUS products to its own
customers in the U.S.A.) would subject ABUS to a
lawsuit in the State of Alabama.' In addition, Mr.
Vom Stein state[d] that ABUS was not aware until
after the initiation of this lawsuit that Kaverit
had sold the hoist to Wolverine or that the hoist
had been installed in a crane system located in the
State of Alabama."
(Emphasis added; footnote omitted.)
Apparently, the "acknowledg[ment] in writing" to which
the trial court referred, namely, "that Kaverit would not
resell ABUS products to any Kaverit customer in the United
States," is a document purporting to be the redacted version
of a letter from Kaverit to ABUS, dated January 12, 1996
(hereinafter referred to as "the Kaverit letter"). The
1071184
10
Kaverit letter, which was filed with Vom Stein's affidavit,
states: "ABUS does not allow Kaverit to sell its products into
the USA. We sell cranes into Washington, Oregon, California,
Alaska, Idaho, Nevada, Montana, Utah, and Wyoming. We do not
consider ABUS on any of these crane inquiries. This is
madness, but we are following your rules."
On November 27, 2007, at a hearing on ABUS's motion to
dismiss, the trial court ordered Brown to file a response to
that motion. The next day, the court entered an order stating
that it was taking "under advisement" Brown's motion to compel
ABUS to respond to her deposition notice. Also that day,
Brown filed a "preliminary response" to the motion to dismiss.
On December 20, 2007, the trial court entered an order
denying Brown's motion to compel, but allowing her an
additional 21 days to file a "final response" to ABUS's motion
to dismiss. The order stated, in pertinent part:
"As to [Brown's] request that ABUS be required
to tender a corporate representative to continue the
noticed [Rule] 30(b)(6) deposition and to produce
all the requested documents in her [Rule] 30(b)(5)
request for production, the Court finds that [Brown]
has failed to identify any specific area of inquiry
or
potentially
responsive
materials
that
if
compelled would be 'material to the disposition of
the issue of personal jurisdiction.' See Ex parte
1071184
11
Duck Boo Int'l Co., Ltd., 985 So. 2d 900, 907 (Ala.
2007).
"....
"Based
on
the
allegations
in
[Brown's]
complaint, the injury giving rise to this action was
caused by an ABUS model GM 7000 wire rope hoist
(serial
number
78838)
that
was
originally
manufactured by ABUS and thereafter was installed in
a crane system that was ultimately located and used
on the premises of the defendant [SRT], located in
Morgan County, Alabama.
"As to in personam jurisdiction based on
specific contacts with Alabama, [Brown] has not
asserted that any outstanding testimony or materials
responsive to her [Rule] 30(b)(6) and [Rule]
30(b)(5) notices will lead to evidence relevant to
whether or not ABUS played a direct role, either
acting on its own or through an authorized agent, in
causing this hoist to be installed in a crane system
or effecting the sale or delivery of this crane
system to a facility located in Alabama."
(Emphasis added; footnote omitted.)
On January 4, 2008, Brown filed a brief in opposition to
ABUS's motion to dismiss. In that brief, she conceded that
this Court, in Ex parte Alloy Wheels International, Ltd., 882
So. 2d 819 (Ala. 2003), adopted the "stream-of-commerce-plus"
test for in personam jurisdiction set out in Asahi Metal
Industry Co. v. Superior Court, 480 U.S. 102 (1987) (plurality
opinion
by
O'Connor,
J.)
(hereinafter
"the
O'Connor
plurality"). See Ex parte Duck Boo Int'l Co., 985 So. 2d
1071184
12
900, 911 (Ala. 2007). Brown argued, however, that the trial
court should apply the more liberal "stream-of-commerce" test
espoused in a second Asahi plurality, which was authored by
Justice Brennan (hereinafter "the Brennan plurality").
According to Brown, the exercise of jurisdiction over ABUS was
proper under the rule set out in the Brennan plurality.
On March 24, 2008, the trial court granted ABUS's motion
to dismiss. In so doing, it declined Brown's invitation to
depart from the binding precedent of Alloy Wheels and held
that jurisdiction was lacking under the test adopted in that
case. The court went further, however, and held:
"[E]ven if ABUS's [contacts with Alabama] were to be
assessed according to the less stringent stream-of-
commerce
test
articulated
[by
the
Brennan
plurality], the result in this case would be the
same, that is, a finding that the assertion of
jurisdiction over ABUS would exceed this court's
powers under the Due Process Clause."
After the trial court certified that order as a final judgment
pursuant to Ala. R. Civ. P. 54(b), Brown filed a timely notice
of appeal.
Brown essentially makes three arguments on appeal.
First, she contends that this Court should overrule Alloy
Wheels and replace the test based on the O'Connor plurality
1071184
13
with one based on the Brennan plurality as the framework for
the exercise of personal jurisdiction in the stream-of-
commerce context. Second, she argues that the record
establishes the basis for jurisdiction over ABUS under the
test of Alloy Wheels. Finally, in the alternative, she
contends that the trial court exceeded its discretion in
denying her motion to compel ABUS to fully respond to her
deposition notice.
II. Discussion
"The Due Process Clause of the Fourteenth Amendment
permits a forum state to subject a nonresident defendant to
its courts only when that defendant has sufficient 'minimum
contacts' with the forum state." Elliott v. Van Kleef, 830
So. 2d 726, 730 (Ala. 2002) (quoting International Shoe Co. v.
Washington, 326 U.S. 310 (1945)). "The critical question with
regard to the nonresident defendant's contacts is whether the
contacts are such that the nonresident defendant '"should
reasonably anticipate being haled into court"' in the forum
state." Id. (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 473 (1985), quoting in turn World-Wide Volkswagen Corp.
v. Woodson, 444 U.S. 286, 295 (1980)).
1071184
14
Alabama recognizes two categories of in personam
jurisdiction -- general and specific. Alabama courts have
general jurisdiction over a nonresident defendant if that
defendant's activities in Alabama "'"are 'substantial' or
'continuous and systematic,' regardless of whether those
activities give rise to the lawsuit."'" Ex parte Troncalli
Chrysler Plymouth Dodge, Inc., 876 So. 2d 459, 463 (Ala. 2003)
(quoting Ex parte Dill, Dill, Carr, Stonbraker & Hutchings,
P.C., 866 So. 2d 519, 525 (Ala. 2003), quoting in turn
Leventhal v. Harrelson, 723 So. 2d 566, 569 (Ala. 1998)). Our
courts have "'"specific jurisdiction when a defendant has had
few contacts with the forum state, but those contacts gave
rise to the lawsuit."'" 876 So. 2d at 463 (quoting Ex parte
Dill, 866 So. 2d at 525, quoting in turn Leventhal, 723 So. 2d
at 569). "Furthermore, this Court has held that, for specific
in personam jurisdiction, there must exist 'a clear, firm
nexus between the acts of the defendant and the consequences
complained of.'" Elliott v. Van Kleef, 830 So. 2d at 731
(quoting Duke v. Young, 496 So. 2d 37, 39 (Ala. 1986)).
"[T]he stream of commerce theory provides a valid basis
for finding requisite minimum contacts." Beverly Hills Fan
1071184
15
Co. v. Royal Sovereign Corp., 21 F.3d 1558, 1566 (Fed. Cir.
1994). It is widely regarded as a basis for asserting specific
jurisdiction. See Purdue Research Found. v. Sanofi-
Synthelabo, S.A., 338 F.3d 773, 788 (7th Cir. 2003); Pennzoil
Prods. Co. v. Colelli & Assocs., Inc., 149 F.3d 197, 203 (3d
Cir. 1998); and Matthews v. Brookstone Stores, Inc., 469 F.
Supp. 2d 1056, 1064 (S.D. Ala. 2007).
A. Standards of Review
"'[T]he plaintiff bears the burden of proving the court's
personal jurisdiction over the defendant.'" Ex parte Dill,
866 So. 2d at 525 (quoting Daynard v. Ness, Motley, Loadholt,
Richardson & Pool, P.A., 290 F.3d 42, 50 (1st Cir. 2002)).
"An appellate court considers de novo a trial court's judgment
on a party's motion to dismiss for lack of personal
jurisdiction." Elliott, 830 So. 2d at 729. "[I]f the
defendant makes a prima facie evidentiary showing that the
Court has no personal jurisdiction, 'the plaintiff is then
required
to
substantiate
the
jurisdictional
allegations
in
the
complaint by affidavits or other competent proof ....'" Ex
parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229-30 (Ala.
1071184
16
2004) (quoting Mercantile Capital, LP v. Federal Transtel,
Inc., 193 F. Supp. 2d 1243, 1247 (N.D. Ala. 2002)).
"'The trial court has broad and considerable discretion
in controlling the discovery process and has the power to
manage its affairs ... to ensure the orderly and expeditious
disposition of cases.'" Ex parte Vulcan Materials Co., [Ms.
1051184, April 25, 2008] ___ So. 2d ___, ___ (Ala. 2008)
(quoting Salser v. K.I.W.I., S.A., 591 So. 2d 454, 456 (Ala.
1991)). "Therefore, this Court will not interfere with a
trial court's ruling on a discovery matter unless this Court
'"determines, based on all the facts that were before the
trial court, that the trial court clearly [exceeded] its
discretion."'" Id. (quoting Ex parte Henry, 770 So. 2d 76, 80
(Ala. 2000), quoting in turn Ex parte Horton, 711 So. 2d 979,
983 (Ala. 1998)).
B. The Applicability of the
Stream-of-Commerce Theory and Alloy Wheels
Brown insists that the test adopted in Alloy Wheels
conflicts with an opinion of the United States Supreme Court,
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980),
which she characterizes as "binding precedent." She urges
this Court to overrule Alloy Wheels. We decline to do so,
1071184
17
because this case involves neither the stream-of-commerce
theory of the Brennan plurality nor the stream-of-commerce-
plus theory of the O'Connor plurality as adopted in Alloy
Wheels.
The source of both versions of the stream-of-commerce
doctrine, which divided the Asahi Court, is dictum in World-
Wide Volkswagen Corp. v. Woodson. In Woodson, New York
residents Harry Robinson and Kay Robinson purchased a new Audi
automobile from Seaway Volkswagen, Inc. ("Seaway"), a retail
dealer in Massena, N.Y. 444 U.S. at 288. The regional
distributor for Audi automobiles -- which served the states of
New York, New Jersey, and Connecticut -- was World-Wide
Volkswagen Corporation ("World-Wide"). Id. at 288-89. The
automobile
was
manufactured
by
Audi
NSU
Auto
Union
Aktiengesellschaft ("Audi") and was imported by Volkswagen of
America, Inc. ("Volkswagen"). 444 U.S. at 288.
The following year, the Robinsons were driving through
Oklahoma when their automobile collided with another vehicle.
The impact created a fire, and Kay Robinson and the Robinsons'
two children were injured. "The Robinsons subsequently
brought a products-liability action in the District Court for
1071184
18
Creek County, Okla., claiming that their injuries resulted
from defective design and placement of the Audi's gas tank and
fuel system." 444 U.S. at 288. Defendants named in the suit
were (1) Seaway, (2) World-Wide, (3) Audi, and (4) Volkswagen.
Id.
The New York defendants, Seaway and World-Wide, contested
the exercise of personal jurisdiction over them in Oklahoma.
Specifically, they sought a writ of prohibition restraining
the trial judge "from exercising in personam jurisdiction."
444 U.S. at 289. From the denial of that relief in the
Oklahoma Supreme Court, they sought certiorari review in the
United States Supreme Court.
The United States Supreme Court reversed the judgment of
the Oklahoma Supreme Court, holding that the unilateral
activity of the New York residents in driving a car they had
purchased from a New York retailer to Oklahoma did not
constitute contacts sufficient to subject the New York
retailer and distributor to suit in Oklahoma. 444 U.S. at
299. In the course of its discussion, the Court stated:
"[I]f the sale of a product of a manufacturer or
distributor
...
is
not
simply
an
isolated
occurrence, but arises from the efforts of the
manufacturer or distributor to serve, directly or
1071184
19
indirectly, the market for its product in other
States, it is not unreasonable to subject it to suit
in one of those States if its allegedly defective
merchandise has there been the source of injury to
its owner or to others. The forum State does not
exceed its powers under the Due Process Clause if it
asserts personal jurisdiction over a corporation
that delivers its products into the stream of
commerce with the expectation that they will be
purchased by consumers in the forum State. Cf. Gray
v. American Radiator & Standard Sanitary Corp., 22
Ill. 2d 432, 176 N.E.2d 761 (1961)."
444 U.S. at 297-98 (emphasis added).
This language in Woodson has been correctly characterized
as dicta, because there was in Woodson no such manufacturer or
importer before the Court contesting jurisdiction. See Nelson
v. Park Indus., Inc., 717 F.2d 1120, 1124-25 (7th Cir. 1983);
Spartan Motors, Inc. v. Lube Power, Inc., 337 Ill. App. 3d
556, 564, 786 N.E.2d 613, 620, 272 Ill. Dec. 74, 81 (2003);
Ruckstuhl v. Owens Corning Fiberglas Corp., 731 So. 2d 881,
887 (La. 1999); Juelich v. Yamazaki Mazak Optonics Corp., 682
N.W.2d 565, 571 n.4 (Minn. 2004); and Kawasaki Steel Corp. v.
Middleton, 699 S.W.2d 199, 201 (Tex. 1985).
Nevertheless, the language served as the foundation for
both plurality opinions in Asahi. The point of disagreement
between the authors of those plurality opinions was whether
jurisdiction may turn on the mere "foreseeability" that the
1071184
20
seller's product would "enter the forum state." Asahi, 480
U.S. at 111-12 (due process requires "something more" than
mere foreseeability (per O'Connor, J.)); 480 U.S. at 117
(defendant need only be "aware that the final product is being
marketed in the forum State" (per Brennan, J.)).
Thus, the stream-of-commerce doctrine contemplates that
the offending product will have been sold by a "participant in
the process" with, at a minimum, the "awareness that the
stream of commerce may or will sweep the product into the
forum State." 480 U.S. at 116-17 (Brennan, J.). "The stream
of commerce refers not to unpredictable currents or eddies,
but to the regular and anticipated flow of products from
manufacture to distribution to retail sale." Asahi, 480 U.S.
at 117 (Brennan, J.) (emphasis added).
In this case, the subject hoist found its way into
Alabama, not by a "regular and anticipated flow," but through
"unpredictable currents or eddies." It was a model that was
not authorized for sale in the United States. Based on Vom
Stein's affidavit and deposition, the trial court found that
neither Kaverit, ABUS's customer in Canada, nor EMH, ABUS's
American distributor in Ohio, was authorized to sell the GM
7000 model hoist in the United States. Instead, Kaverit
1071184
21
purchased the hoist in Germany with the understanding that it
would not place it in the stream of commerce in the United
States. In spite of this agreement, Kaverit apparently sold
the hoist to Wolverine, which, in turn, incorporated it into
the crane system that was installed at the SRT job site where
Brown's husband was working. Under these uncontroverted
facts, ABUS had no "awareness that the stream of commerce
[might] or [could] sweep the product into [Alabama]." Asahi,
480 U.S. at 116-17 (Brennan, J.).
The hoist was, therefore, not within the stream of
commerce, as defined by any test proposed in Asahi. See
Simeone v. Bombardier-Rotax GmbH, 360 F. Supp. 2d 665, 672
(E.D. Pa. 2005) (plaintiffs in a product-liability action
against the foreign manufacturer of airplane engines could not
assert in personam jurisdiction under the stream-of-commerce
theory, where the particular engine that was the subject of
the action had not entered the United States through the
distribution channels the manufacturer had established to
serve the market in the United States, there being no
connection "between the activities that [the manufacturer]
purposefully directed at Pennsylvania and the accident that
ultimately occurred"). It is fundamental that "the Due
1071184
22
Process Clause ... gives a degree of predictability to the
legal system that allows potential defendants to structure
their primary conduct with some minimum assurance as to where
that conduct will and will not render them liable to suit."
Woodson, 444 U.S. at 297.
Although this Court does not currently operate within the
framework of the Brennan plurality, see Alloy Wheels, supra,
it recently signaled a willingness to revisit the issue in the
appropriate case. See Ex parte Duck Boo, 985 So. 2d at 911-
12. According to Brown, this is such a case; we disagree.
Alloy Wheels was a typical stream-of-commerce case. The
foreign
defendant
contesting
jurisdiction
manufactured
aluminum alloy wheels in the United Kingdom ("the UK"). 882
So. 2d at 825. Those wheels were installed on Landrover
Discovery
sport-utility
vehicles
in
the
UK.
Id.
Nevertheless, the manufacturer anticipated that some of its
wheels would be used on "'vehicles to be exported to the
United States.'" 882 So. 2d at 824. Indeed, one such vehicle
was involved in an automobile accident that formed the basis
of the plaintiff's product-liability action against the
foreign manufacturer. Thus, the offending product in that
case was placed within the stream of commerce. For these
1071184
23
reasons, the jurisdictional discussions in Alloy Wheels and Ex
parte Duck Boo shed little light on this case.
In short, Brown's theory of jurisdiction over ABUS -- the
stream-of-commerce doctrine -- is inapplicable. For all that
appears, the subject hoist was the only specimen of the GM
7000 model that ever entered the United States. Thus, because
the accident arose out of a single contact that is
functionally
irrelevant
under
the
stream-of-commerce
doctrine,
that contact affords an insufficient basis for jurisdiction
over ABUS.
C. Motion to Compel
Alternatively, Brown contends that the trial court
exceeded its discretion in denying her motion to compel ABUS
to fully respond to her deposition notice. She asks this
Court to "reverse the trial court and remand this case with
instructions to allow [her] to retake the deposition of [Vom
Stein] on the topics set forth in her notice and to conduct
any and all follow-up jurisdictional discovery that is
necessary." Brown's reply brief, at 24 (emphasis added).
Although Brown was ultimately allowed to depose Vom
Stein, she contends that ABUS's counsel improperly interfered
with her deposition, in violation of Ala. R. Civ. P. 26(b) and
1071184
Brown
concedes
that
ABUS eventually "gave other
2
information that it precluded questioning about during the
deposition." Brown's reply brief, at 14.
24
30(c). More specifically, she contends that ABUS's counsel
improperly instructed Vom Stein not to answer questions
pertaining to ABUS's nationwide sales or business operations
and that ABUS's counsel made "speaking objections" and
otherwise improperly coached Vom Stein during the deposition.
According to Brown, questions regarding "ABUS' contacts with
the United States and within North America" were proper,
because,
she
insists,
"such
discovery
was
reasonably
calculated to lead to the discovery of facts regarding ABUS'
contacts with Alabama." Brown's brief, at 46.
However, Brown bears the burden of "show[ing] that the
outstanding discovery is material to the disposition of the
issue of personal jurisdiction." Ex parte Duck Boo, 985 So.
2d at 907. She has failed to make such a showing.
After Vom Stein's deposition, ABUS filed materials
relevant
to
Brown's
stream-of-commerce
theory
of
jurisdiction,
including a lengthy affidavit from Vom Stein. These
2
materials clearly show that Brown's theory of jurisdiction is
unavailable in this case, as discussed in Part II.B. of this
opinion. Thus, assuming, without deciding, that ABUS's
1071184
25
counsel improperly interfered with Brown's deposition of Vom
Stein, Brown has failed show how -- in light of the
information subsequently admitted through the deponent -- the
answers precluded by the interference were material.
In this connection, Brown focuses on the activities of
EMH and its relationship with ABUS. More specifically, she
states: "ABUS admits that it supplies products to EMH, which
shows that it knows that the ABUS products will flow into the
American market. ABUS' own testimony and distributorship
agreement both
establish
that [EMH] was
to
aggressively market
and sell its products in all states, including the State of
Alabama." Brown's brief, at 60.
However, the activities of EMH and its relationship with
ABUS are inapposite. It is undisputed that neither the
activities of EMH nor or its relationship with ABUS had any
bearing on this accident. Instead, the record establishes
conclusively that the product at issue was not authorized for
sale in the United States by EMH. The fact that EMH
distributes some types of ABUS products in the United States
does not supply a nexus to this case, where EMH did not -- and
could not -- sell the product model that allegedly caused the
1071184
26
accident. See Simeone v. Bombardier-Rotax GmbH, 360 F. Supp.
2d at 672.
The questions Brown proposes to ask Vom Stein on any
remand of this case incorrectly presuppose the applicability
of her stream-of-commerce theory. She cites a number of such
cases, which, she says, stand for the proposition that "ABUS'
contacts with the rest of the United States is relevant
because it could lead to evidence of contacts with Alabama."
Brown's brief, at 51. In particular, her brief includes the
following quote from Hanamint Corp. v. Alliant Marketing
Group, LLC, 481 F. Supp. 2d 444, 447 (M.D.N.C. 2007):
"'The analytical tool useful in cases in
which the defendant's contacts are the
result of establishing a distribution
network in the forum State for the sale of
defendant's products is generally referred
to as the "stream of commerce" theory.'
"Viam Corp. [v. Iowa Export-Import Trading Co.,] 84
F.3d [424], 427 [(Fed. Cir. 1996)]. 'Under this
theory, a defendant has minimum contacts with the
forum when it purposefully ships a product into the
forum [S]tate through an "established distribution
channel."' Akeva L.L.C. v. Mizuno Corp., 199 F.
Supp. 2d 336, 339 (M.D.N.C. 2002) (citing Beverly
Hills [Fan Co. v. Royal Sovereign Corp.,] 21 F.3d
[1558,] 1565 [(Fed. Cir. 1994)].
"In determining what constitutes an established
distribution channel, it is sufficient that the
defendant '[arrange] for [the] introduction of [a
product] into the United States stream of commerce
1071184
27
with the expectation (or at least the intention and
hope) that [the product] will be shelved and sold at
numerous local outlets in diverse parts of the
country.' Stabilisierungsfonds Fur Wein v. Kaiser
Stuhl Wine Distributors Pty. Ltd., 647 F.2d 200, 203
(D.C. Cir. 1981) (quoted and cited with approval by
the Federal Circuit in Beverly Hills, 21 F.3d at
1567). Indeed, it is not required that a foreign
defendant exercise control of the distributing agent
in order to show that an established distribution
channel exists."
(Emphasis added.)
Brown also cites Clune v. Alimak AB, 233 F.3d 538 (8th
Cir. 2000), which, she says, is "[d]irectly on point."
Brown's brief, at 48. From Clune, Brown quotes:
"The record shows that [the Swedish manufacturer]
did not seek to limit the states or regions where
their construction hoists would be sold. Rather, it
utilized distributors that had sales territories
across the United States. A foreign manufacturer
that successfully employs a number of regional
distributors to cover the United States intends to
reap the benefits of sales in every state where the
distributors
market.
Similarly,
a
foreign
manufacturer that successfully employs one or two
distributors to cover the United States intends to
reap the benefit of sales in every state where those
distributors market. The difference is one of form,
not function, and the practical effect is the same.
"We are not persuaded by [the manufacturer's]
argument that it was unaware of what happened to its
products after they left Swedish port. '[S]uch
ignorance defies reason and could aptly be described
as "willful."' Barone [v. Rich Bros. Interstate
Display Fireworks Co.], 25 F.3d [610,] 614 [(8th
Cir. 1994)]. See also id. at 613 n. 4 (explaining
how the distinction between what the defendant knew
1071184
28
and should have known is immaterial to the personal
jurisdiction analysis). If we were to conclude that
despite its distribution system, [the manufacturer]
did not intend its products to flow into Missouri,
we would be bound to the conclusion that the company
did not intend its products to flow into any of the
United States."
233 F.3d at 544.
Brown's
reliance
on
these
and
similar
cases
is
inapposite, because they are, in fact, stream-of-commerce
cases. Hanamint involved the distribution of allegedly
patent-infringing products in the United States by means of a
distribution
system
authorized
by
the
foreign
manufacturers/sellers. 481 F. Supp. 2d at 448. The offending
product in Clune, a "construction hoist," was one of many such
hoists sold in the United States through a distribution system
authorized by the foreign manufacturer. 233 F.3d at 540.
Here, the unequivocal testimony of Vom Stein establishes
that the subject hoist was not designed or manufactured for
distribution in the United States market and that ABUS never
agreed to, or authorized, the sale of the hoist in the United
States. The trial court recognized the fundamental
distinction between actual stream-of-commerce cases and this
case, in which ABUS's authorized sales in the United States
and North America through EMH have nothing to do with the
1071184
To be sure, at the time Brown was attempting to depose
3
Vom Stein, the distinction was not apparent. The distinction
has been clearly revealed, however, by Vom Stein's affidavit
and the Kaverit letter.
29
accident at the SRT job site or the subject hoist.3
Consequently, Brown has failed to demonstrate how further
inquiry into those authorized sales would be reasonably
calculated to lead to the discovery of evidence relevant to
her purported basis of jurisdiction over ABUS in Alabama. The
trial court did not, therefore, exceed its discretion in
denying Brown's motion to compel.
III. Conclusion
In
summary,
Brown's
theory
of
jurisdiction
is
unavailable. She has failed to show that ABUS had the
requisite minimum contacts for the assertion of in personam
jurisdiction, and she has failed to show that the trial court
exceeded its jurisdiction in denying her motion to compel ABUS
to respond to further discovery. Consequently, the judgment
of the trial court is affirmed.
AFFIRMED.
Cobb, C.J., and See, Lyons, Stuart, Smith, Bolin, and
Parker, JJ., concur.
Murdock, J., dissents.
1071184
The main opinion states that it is only based on Vom
4
Stein's affidavit -- and not his deposition testimony -- that
we now know that ABUS-authorized sales of hoists through EMH,
Inc., into the United States had nothing to do with the
particular hoist by which Brown's husband was injured.
It is also worth noting that the "stream of commerce"
30
MURDOCK, Justice (dissenting).
I disagree with the analysis regarding the motion to
compel, as set out in Part II.C. of the main opinion. The
holding that Brown was not entitled to complete jurisdictional
discovery, particularly the deposition of a representative of
ABUS, hinges on the finding that this is not an "actual
stream-of-commerce case[]." __ So. 2d at __. Information
relevant to whether this case is in fact an "actual stream-of-
commerce case," however, is the type of information into which
Brown legitimately was attempting to inquire in her discovery
efforts,
including
her deposition of ABUS's corporate
representative. The only basis we now (post-deposition) have
for finding that this is not an actual stream-of-commerce case
is a set of statements from the same corporate representative
prepared and given in the form of an affidavit after he, with
the aid of counsel, refused to have his testimony as to this
issue properly elicited and tested by cross-examination in his
deposition.4
1071184
argument made by Brown arguably could allow for in personam
jurisdiction over ABUS if, because of the flow of the stream
of commerce, a significant number of ABUS's hoists were used
in Alabama. See generally Ex parte Phil Owens Used Cars,
Inc., [Ms. 1060596, Aug. 1, 2008] __ So. 2d __, __ (Ala.
2008)(Murdock, J., concurring in the rationale in part and
concurring in the result)("Neither party has argued for a
modification of the elements of specific jurisdiction -- or
for a hybrid of general and specific jurisdiction -- to be
applied to determine whether the assertion of personal
jurisdiction in this case would comport with constitutional
standards of fairness. See, e.g., Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 415 n. 10 (1984)
('Absent any briefing on the issue, we decline to reach the
questions (1) whether the terms "arising out of" and "related
to" describe different connections between a cause of action
and a defendant's contacts with a forum, and (2) what sort of
tie between a cause of action and a defendant's contacts with
a forum is necessary to a determination that either connection
exists. Nor do we reach the question whether, if the two
types of relationship differ, a forum's exercise of personal
jurisdiction in a situation where the cause of action "relates
to," but does not "arise out of," the defendant's contacts
with the forum should be analyzed as an assertion of specific
jurisdiction.'); Ex parte Kamilewicz, 700 So. 2d 340, 345 n.
2 (Ala. 1997); Linda Sandstrom Simard, Hybrid Personal
Jurisdiction: It's Not General Jurisdiction, or Specific
Jurisdiction, but Is It Constitutional?, 48 Case W. Res. L.
Rev. 559, 582 (1998); William M. Richman, Jurisdiction in
Civil Actions, 72 Cal. L. Rev. 1328, 1345 (1984); Arthur T.
von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate:
A Suggested Analysis, 79 Harv. L. Rev. 1121 (1966)."). See Ex
parte Duck Boo Int'l Co., Ltd., 985 So. 2d 900 (Ala.
2007)(declining to revisit previous holdings regarding the
nature of contacts necessary to establish in personam
jurisdiction on the ground that discovery as to the nature and
extent of contacts between the defendant and the forum state
had not been completed).
31
I therefore respectfully dissent. | December 12, 2008 |
42ca28a2-97dc-4631-aad8-f45bbe98a4e2 | North Alabama Electric Cooperative and St. Paul Fire and Marine Insurance Company v.New Hope Telephone Cooperative | N/A | 1051800 | 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
____________________
1051800
____________________
North Alabama Electric Cooperative and St. Paul Fire and
Marine Insurance Company
v.
New Hope Telephone Cooperative
Appeal from Marshall Circuit Court
(CV-04-295)
MURDOCK, Justice.
North Alabama Electric Cooperative ("NAEC") and St. Paul
Fire and Marine Insurance Company ("St. Paul") appeal from a
partial summary judgment entered in favor of New Hope
1051800
The record indicates that the "lashing wire" at issue was
1
a wire used to support New Hope's cable-television wire strung
between utility poles.
2
Telephone Cooperative ("New Hope") regarding a common-law
indemnity claim stemming from a wrongful-death action filed
against the above parties by the estate of J.C. Phillips ("the
Phillips estate"). We dismiss the appeal.
I. Background
On
June
29,
2004,
Danny
Phillips,
as
personal
representative of the Phillips estate, filed a wrongful-death
action against NAEC, New Hope, and others. The complaint
alleged that, on April 3, 2004, J.C. Phillips was operating a
riding lawnmower when a "lashing wire" strung between utility
1
poles fell to the ground and became entangled with the mower
blade. Electrical current flowing through the utility wire
allegedly gave Phillips a shock that resulted in his death.
NAEC owns the utility poles on which the lashing wire was
strung. New Hope strung its wires from the utility poles
pursuant to an agreement with NAEC executed August 18, 1998,
the "General Agreement Joint Use of Wood Poles" ("the pole-
sharing agreement"). In the pole-sharing agreement, NAEC
granted New Hope permission to attach cable-television and
1051800
3
telephone wires to NAEC's utility poles, and New Hope agreed,
"at its own expense, and at all times, to maintain all of its
attachments in safe condition [and] thorough repair."
Article XV of the pole-sharing agreement contains an
indemnification clause, which provides:
"Either
party
hereto,
to
the
fullest
extent
permitted by law, agrees to and shall indemnify and
hold harmless the other Party from and against any
and all claims, damages, losses and expenses,
including but not limited to attorneys fees, arising
out of or resulting from the joint use of the poles,
and or any acts or omissions under this Agreement.
Any interpretations regarding this Agreement or any
activities arising hereunder shall be governed by
the laws of the state of Alabama."
NAEC entered into a pro tanto settlement in the amount of
$1,750,000 with the Phillips estate on April 8, 2005. NAEC's
liability insurer, St. Paul, paid the settlement amount and
the costs of defense. Following the settlement, NAEC filed
cross-claims against New Hope seeking contractual indemnity
(based on Article XV of the pole-sharing agreement) and/or
common-law indemnity and asserting negligence and wantonness.
NAEC also filed, and the trial court granted, a motion to add
St. Paul as a real party in interest as to its cross-claims.
1051800
4
New Hope entered into a settlement with the Phillips
estate in the amount of $875,000 on April 10, 2006. As a
result of the settlements, no claims by the Phillips estate
against NAEC and New Hope remain before the trial court.
New Hope subsequently filed a motion for a summary
judgment as to NAEC's cross-claims. With regard to NAEC's
common-law indemnity claim, New Hope argued that the
indemnification
clause
in
the
pole-sharing
agreement
precluded
NAEC from relying on common-law indemnity as a basis for its
cause of action.
On September 6, 2006, the trial court granted New Hope's
motion for a summary judgment as to NAEC's common-law
indemnity claim, but it denied the motion with regard to
NAEC's
other
cross-claims,
including
its
contractual
indemnity
claim. In entering the partial summary judgment, the trial
court explicitly found that it did not see any "just reason
for delay and directs entry of the judgment as final pursuant
to Rule 54(b), [Ala. R. Civ. P.,]" with regard to the common-
law indemnity claim. NAEC appeals.
1051800
5
II. Analysis
Both NAEC and New Hope make several arguments concerning
the viability of NAEC's common-law indemnity claim against New
Hope. Before we examine those arguments, however, 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 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).
1051800
6
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 bears 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).
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
1051800
7
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).'"
1051800
8
955 So. 2d 998 (quoting 10 Charles Alan Wright et al., Federal
Practice & Procedure § 2657 (3d ed. 1998) (footnotes
omitted)).
Our caselaw thus makes it clear that claims that are
mutually exclusive or that reflect alternative claims for the
recovery of damages should not be split for appellate review
by way of Rule 54(b). NAEC's cross-claims for contractual
indemnity and common-law indemnity fall squarely within this
category of intertwined claims. "'The basis for indemnity is
restitution, and the concept that one person is unjustly
enriched at the expense of another when the other discharges
liability that it should be his responsibility to pay.'"
Amerada Hess Corp. v. Owens-Corning Fiberglass Corp., 627
So. 2d 367, 370 (Ala. 1993) (quoting Restatement (Second) of
Torts § 886B cmt. c (1977)). Though NAEC pleaded different
theories of indemnification recovery, i.e., contract and
common law, by definition it may still receive only one
recovery for indemnification. NAEC admits as much in its
initial brief to this Court, labeling the two claims
"alternative
theories
of
recovery
of
indemnification."
Consequently, the adjudication of NAEC's common-law indemnity
1051800
9
cross-claim is not appropriate for certification under Rule
54(b).
We further note that this case does not represent the
kind of "exceptional case[]" that warrants immediate appellate
review under Rule 54(b). Schlarb, 955 So. 2d at 419.
Accordingly, our holding today is consistent with the fact
that "[t]he purpose of the provision in the rule that only a
final judgment is appealable is to ensure that there be but
one appeal of an entire case, thereby saving time and expense
for litigants, as well as bench and bar." Powell v. Republic
Nat'l Life Ins. Co., 293 Ala. at 103, 300 So. 2d at 361.
For these reasons, we dismiss the appeal as being from a
nonfinal judgment.
APPEAL DISMISSED.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur. | October 17, 2008 |
73621f77-639c-4b92-ad74-64133be86ba6 | Ex parte McKenzie Oil Company, Inc. PETITION FOR WRIT OF MANDAMUS OR ALTERNATIVE WRIT OF PROHIBITION: CIVIL (In re: Lee Harris Franklin v. Gary Dewayne Heathcock and McKenzie Oil Company, Inc.) | N/A | 1071011 | Alabama | Alabama Supreme Court | REL:8/22/2008
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
_________________________
1071011 and 1071021
_________________________
Ex parte McKenzie Oil Company, Inc.
and
Ex parte Gary Dewayne Heathcock
PETITIONS FOR WRIT OF MANDAMUS
(In re: Lee Harris Franklin
v.
Gary Dewayne Heathcock and McKenzie Oil Company, Inc.)
(Barbour Circuit Court, CV-07-900036)
1071011 & 1071021
2
SMITH, Justice.
McKenzie Oil Company, Inc. ("McKenzie"), and Gary Dewayne
Heathcock, defendants in an action pending in the Barbour
Circuit Court, petition for a writ of mandamus directing the
trial court to transfer the case to the Escambia Circuit Court
on the basis of forum non conveniens. We grant the petition
and issue the writ.
Facts and Procedural History
In the early morning hours of September 24, 2006,
Heathcock was allegedly driving a vehicle that collided with
a vehicle driven by Lee Harris Franklin. The accident
occurred on Alabama Highway 21 near the City of Atmore in
Escambia County. Franklin was injured in the accident and was
transported to Atmore
Community Hospital.
Heathcock
subsequently pleaded guilty in an Escambia County court to a
charge of reckless driving stemming from the accident.
According to the allegations in the materials before us,
McKenzie operated a convenience store in Escambia County
referred to in the documents before us as "Atmore Interstate
BP." It is alleged that Heathcock, while he was visibly
intoxicated, purchased alcoholic beverages at this store
1071011 & 1071021
3
before
the
accident.
The
accident,
apparently
by
coincidence,
occurred in front of the Atmore Interstate BP convenience
store several hours after the alleged sale.
Franklin is a resident of Clarke County. In January
2007, Franklin sued Heathcock in the Clarke Circuit Court,
seeking damages for, among other things, Heathcock's alleged
negligence and wantonness. Before Heathcock was served with
the complaint, Franklin moved to dismiss the case; in July
2007,
the
Clarke
Circuit
Court
dismissed
the
complaint
without
prejudice.
On August 28, 2007, Franklin filed a new complaint, this
time naming both Heathcock and McKenzie as defendants, in the
circuit court in Barbour County, where McKenzie's corporate
headquarters is located. Against Heathcock, Franklin sought
damages for negligent, wanton, and willful conduct. Against
McKenzie, Franklin sought damages under the Dram Shop Act,
Ala. Code 1975, § 6-5-71.
McKenzie answered the complaint and, as an affirmative
defense, alleged that venue in the Barbour Circuit Court was
neither appropriate nor convenient. McKenzie subsequently
filed a motion to transfer the case to the Escambia Circuit
1071011 & 1071021
4
Court on the basis of forum non conveniens. The motion was
supported by a brief and by evidentiary exhibits. Franklin
responded to the motion, and the Barbour Circuit Court held a
hearing on December 4, 2007. When it was discovered that
Heathcock had not yet been served with a complaint, the trial
court entered the following notation in the case-action
summary: "Attorneys to do more discovery."
Heathcock was ultimately served with the complaint; he
later also filed a motion to transfer the case to Escambia
County on the basis of forum non conveniens. A hearing was
set for this motion; before the hearing was held, McKenzie
filed a "Motion for Clarification," asking the trial court to
clarify whether the notation in the case-action summary
stating that the attorneys were "to do more discovery"
directed the parties to conduct discovery on the merits or
whether such discovery should be limited to the issue of
venue.
On March 12, 2008, the trial court held a hearing on
Heathcock's motion to transfer and McKenzie's "Motion for
Clarification." That day, the trial court entered an order
stating: "Merits and venue discovery to continue. Venue to be
1071011 & 1071021
5
decided post discovery." McKenzie filed a petition in this
Court for a writ of mandamus, and the next day Heathcock also
filed a petition for the writ of mandamus in this Court, in
essence joining McKenzie's petition (hereinafter McKenzie and
Heathcock will be referred to collectively as "McKenzie").
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
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, [Ms. 1060528, February 15, 2008] ___ So. 2d
___,___ (Ala. 2008).
Discussion
Alabama Code 1975, § 6-3-21.1, Alabama's forum non
1071011 & 1071021
The parties make no argument before this Court that this
1
action was not "filed in an appropriate venue."
6
conveniens statute, provides when an 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. ..."
Ala. Code 1975, § 6-3-21.1(a).
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 Masonite Corp., 789 So. 2d 830, 831 (Ala. 2001); Ex
parte National Sec. Ins. Co., 727 So. 2d 788, 789 (Ala. 1998).
In its motions for a change of venue, McKenzie argued that
both the convenience of the parties and witnesses and the
interest of justice required a transfer of the case to
Escambia County. Because McKenzie has demonstrated that the
1
interest of justice requires a transfer in this case, we do
not address the convenience of the parties and witnesses.
1071011 & 1071021
7
"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 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. 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).
Franklin
points
out
that
McKenzie's
corporate
headquarters is located in Barbour County; thus, Franklin
claims that Barbour County and its citizens have an interest
1071011 & 1071021
8
in McKenzie's "well-being" and a "significant interest in
whether McKenzie" has fulfilled its obligations as a vendor of
alcoholic beverages.
We agree that McKenzie has "a connection" with Barbour
County
by
virtue
of
the
location
of
its
corporate
headquarters. However, we find this connection to Barbour
County to be "little" and the connection with Escambia County
to be "strong." Ex parte National Sec. Ins. Co., supra.
First, we note that the courts of Escambia County have
been invoked to punish the traffic violation arising from the
accident. Cf. Kane, ___ So. 2d ___ (holding, in part, that
the interest of justice required a transfer to a forum where
a related action involving the same incident and the same
witnesses was pending).
Additionally, we note that virtually none of the events
or circumstances involved in this case occurred in or relate
to Barbour County. Specifically, the accident giving rise to
Franklin's claims and the alleged tortious conduct by both
Heathcock and McKenzie took place in Escambia County. Law-
enforcement
personnel
and
medical
personnel
in
Escambia
County
investigated the accident and treated Franklin's injuries.
1071011 & 1071021
9
Additionally,
the
employees
of
McKenzie
who
allegedly
violated
the Dram Shop Act work not at the corporate headquarters in
Barbour County but at the Atmore Interstate BP convenience
store, which actually conducts business for McKenzie in
Escambia County. Heathcock resides in Escambia County. For
all that appears, all material events in this case, including
the accident, occurred in Escambia County.
Given this small nexus and little connection with the
facts of this case to Barbour County and the strong connection
with Escambia County, we hold that hearing the case in
Escambia County "would more serve the interest of justice."
Ex parte First Tennessee Bank, supra. Therefore, McKenzie has
demonstrated that the action is due to be transferred to
Escambia County under Ala. Code 1975, § 6-3-21.1.
"Alabama's forum non conveniens statute is compulsory.
See Ex parte Prudential Ins. Co. of America, 721 So. 2d 1135,
1138 (Ala. 1998) ('The word "shall" is clear and unambiguous
and is imperative and mandatory.')." Ex parte Sawyer, 892 So.
2d 898, 905 n.9. (Ala. 2004). The language of § 6-3-21.1(a)
requires that the trial court "shall" transfer an action when
the statute so requires. In this case, McKenzie had
1071011 & 1071021
10
demonstrated that the action is due to be transferred to
Escambia County. Instead of transferring the action, the
trial court ordered discovery to continue. There is no
argument presented that discovery on the issue of forum non
conveniens was required, and the materials before us do not so
indicate; therefore, the trial court exceeded its discretion
in refusing to transfer the case to Escambia County.
Conclusion
Both McKenzie's and Heathcock's petitions for the writ of
mandamus are granted, and the trial court is directed to
transfer the case to the Escambia Circuit Court.
1071011--PETITION GRANTED; WRIT ISSUED.
1071021--PETITION GRANTED; WRIT ISSUED.
See, Woodall, Bolin, and Parker, JJ., concur.
Cobb, C.J., recuses herself. | August 22, 2008 |
599fca8b-be10-4be0-9eda-0da458efea65 | Ex parte J.C. Duke & Associates, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: DelZak Builders, Inc. v. J.C. Duke & Associates, Inc. and Arch Insurance Company) | N/A | 1070298 | 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
____________________
1070298
____________________
Ex parte J.C. Duke & Associates, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: DelZak Builders, Inc.
v.
J.C. Duke & Associates, Inc., and Arch Insurance Company)
(Clarke Circuit Court, CV-06-194)
PARKER, Justice.
J.C. Duke & Associates, Inc. ("Duke"), petitions this
Court for a writ of mandamus ordering the trial court to
vacate its order denying Duke's motion to dismiss the claims
1070298
2
against it pursuant to Ala. Code 1975, § 6-5-440, Alabama's
abatement statute. We grant the petition and issue the writ.
I. Facts and Procedural Posture
In February 2005, Duke sued C.L. Roofing Professionals,
Inc., and DelZak Builders, Inc., in the Mobile Circuit Court,
alleging poor workmanship, untimely performance, and breach of
warranty. Duke's claims arise out of its contract with DelZak
for the installation of a roof on a Merchants Bank building
in Jackson, located in Clarke County. DelZak and its related
company, C.L. Roofing, filed an answer and counterclaim in
April 2005; they did not object to venue or jurisdiction. The
counterclaim alleged that Duke owed DelZak and C.L. Roofing
$250,000 for labor and materials for previous jobs DelZak had
completed for Duke in Mobile County; that Duke lied about its
intent to pay the amount DelZak claimed was owed; and that
Duke had committed fraud, misrepresentation, and coercion in
its dealings with DelZak and C.L. Roofing. In addition, DelZak
and C.L. Roofing alleged that Duke had slandered the companies
and their employees. The counterclaim, in part, stated:
"Duke attempted
to
coerce
DelZak
into
performing
work on [a Mobile County project] by withholding
funds and money directly and justly due from other
projects. When [DelZak and C.L. Roofing] explained
1070298
3
to J.C. Duke that the intervention of hurricanes and
tropical storms had doubled or quadrupled the cost
of materials, J.C. Duke slandered [Delzak and C.L.
Roofing] and their employees by stating of and
concerning [DelZak and C.L. Roofing] and their
employees that they were not good roofers, and did
not perform good work. J.C. Duke, his company,
and/or
his
agents, servants, and/or employees
published of and concerning [DelZak and C.L.
Roofing] that one or more of them was 'the sorriest
roofer in Mobile County.' This statement was made
after J.C. Duke refused to pay monies justly due to
[DelZak and C.L. Roofing], and after [DelZak and
C.L. Roofing] refused to do any further work for
J.C. Duke until he paid all past due accounts."
Petition, Appendix 2, at unmarked 5.
On October 2, 2006, DelZak sued Duke in Clarke County,
basing its complaint on the contract for roofing the Merchants
Bank building in Clarke County. DelZak contended that it was
due funds for work and labor done and damages for, among other
things, breach of contract and fraud as well as recovery under
a theory of quantum meruit. On January 3, 2007, Duke moved to
dismiss the action based on § 6-5-440, Ala. Code 1975,
sometimes referred to as the abatement statute. DelZak did not
file a response to the motion to dismiss. On October 18, 2007,
the Clarke Circuit Court issued an order denying Duke's motion
to dismiss.
II. Standard of Review
1070298
4
"A writ of 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 Wood, 852 So. 2d 705, 708 (Ala. 2002) (quoting Ex
parte United Serv. Stations, Inc., 628 So. 2d 501, 503 (Ala.
1993)).
III. Analysis
Duke contends that unless this Court issues a writ of
mandamus directing the Clarke Circuit Court to dismiss the
action filed there by DelZak, it faces the expense of
litigating two actions and the possibility of inconsistent
verdicts or adverse judgments. It maintains that both the
complaint filed in the Mobile Circuit Court and the lawsuit
filed in the Clarke Circuit Court state claims that arise out
of the same construction project –- roofing the Merchants Bank
building in Clarke County. Petition at 2.
The abatement statute provides:
"No plaintiff is entitled to prosecute two
actions in the courts of this state at the same time
1070298
5
for the same cause and against the same party. In
such a case, the defendant may require the plaintiff
to elect which he will prosecute, if commenced
simultaneously, and the pendency of the former is a
good defense to the latter if commenced at different
times."
§ 6-5-440, Ala. Code 1975. A question presented to determine
whether a party has run afoul of § 6-5-440 is whether the
claim presented in the second action is a compulsory
counterclaim in the first action. "[A] compulsory counterclaim
is considered an 'action' for purposes of § 6-5-440." Ex parte
Norfolk Southern Ry., [Ms. 1060374, April 25, 2008] __ So. 2d
__, __ (Ala. 2008). "Under the logical-relationship test '[a]
counterclaim is compulsory if there is any logical relation of
any sort between the original claim and the counterclaim.'
Committee Comments on the 1973 adoption of Rule 13, ¶6."
Bedsole v. Goodloe, 912 So. 2d 508, 521 (Ala. 2005).
In Ex parte Breman Lake View Resort, L.P., 729 So. 2d
849, 851 (Ala. 1999), this Court applied the abatement statute
in a case where the issue involved was whether the claim
asserted in a subsequent action was a compulsory counterclaim
in the first-filed action:
"[T]he obligation imposed on a defendant under Rule
13(a), Ala. R. Civ. P., to assert compulsory
1070298
6
counterclaims, when read in conjunction with §
6-5-440, Ala. Code 1975, which prohibits a party
from prosecuting two actions for the same cause and
against the same party, is tantamount to making the
defendant with a compulsory counterclaim in the
first action a 'plaintiff' in that action (for
purposes of § 6-5-440) as of the time of its
commencement.
See,
e.g.,
Ex
parte
Parsons
&
Whittemore Alabama Pine Constr. Corp., 658 So. 2d
414 (Ala. 1995); Penick v. Cado Systems of Cent.
Alabama, Inc., 628 So. 2d 598 (Ala. 1993); Ex parte
Canal Ins. Co., 534 So. 2d 582 (Ala. 1988). Thus,
the defendant subject to the counterclaim rule who
commences
another
action
has
violated
the
prohibition in § 6-5-440 against maintaining two
actions for the same cause. We affirm the general
rule expressed in these cases; to do otherwise would
invite waste of scarce judicial resources and
promote piecemeal litigation."
The complaint filed by DelZak in Clarke County involves
the construction agreement between Duke and DelZak regarding
the Merchants Bank project. This is the same dispute that gave
rise to the action filed by Duke in Mobile County, to which
DelZak has filed an answer and counterclaim. There is a
readily apparent logical relationship between Duke's original
complaint
and
DelZak's
counterclaim;
thus
DelZak's
counterclaim was a compulsory one. Venue is not at issue in
the action pending in Mobile County because DelZak did not
challenge venue in Mobile County when it filed its responsive
pleading to Duke's complaint; thus DelZak has waived any
1070298
7
potential
affirmative
defense of improper venue. Rule
12(h)(1), Ala. R. Civ. P.
In its complaint filed in Clarke County, DelZak also
named as a defendant Arch Insurance Company, which was Duke's
payment and performance bond company. DelZak did not name Arch
Insurance in its counterclaim in the Mobile County action.
DelZak appears to argue that because it named Arch Insurance
as a defendant in the Clarke County action, the claims
asserted in the Clarke County action are not compulsory
counterclaims in the Mobile County action.
"A pleading shall state as a counterclaim any claim
which at the time of serving the pleading the
pleader has against any opposing party, if it arises
out of the transaction or occurrence that is the
subject matter of the opposing party's claim and
does not require for its adjudication the presence
of third parties of whom the court cannot acquire
jurisdiction."
Rule 13(a), Ala. R. Civ. P. (emphasis added). However, DelZak
presents no authority to support its proposition; it merely
quotes Rule 13(a). DelZak does not explain how or why the
Mobile Circuit Court could not acquire jurisdiction over
Duke's surety, Arch Insurance.
1070298
8
Pursuant to § 6-5-440, Ala. Code 1975, and this Court's
decision in Breman Lake View Resort, L.P., supra, DelZak's
action in Clarke County must be abated in favor of the Mobile
County action, in which DelZak has already filed its
compulsory counterclaim.
IV. Conclusion
Duke has met the requirements for the issuance of the
writ. Accordingly, we order the Clarke Circuit Court to
dismiss DelZak's complaint.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and See and Smith, JJ., concur.
Woodall, J., concurs in the result. | August 22, 2008 |
7faf8bc6-fa2e-4365-af16-17624110b235 | Ex parte Rick Allen Belisle. PETITION FOR WRIT OF CERTIORARI TO Death THE COURT OF CRIMINAL APPEALS (In re: Rick Allen Belisle v. Penalty State of Alabama) | N/A | 1061071 | Alabama | Alabama Supreme Court | REL: 10/3/08
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
____________________
1061071
____________________
Ex parte Rick Allen Belisle
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Rick Allen Belisle
v.
State of Alabama)
(Marshall Circuit Court, CC-99-200075;
Court of Criminal Appeals, CR-02-2124)
SEE, Justice.
Rick Allen Belisle was convicted of the capital offenses
of murder committed during the course of a robbery, see § 13A-
1061071
2
5-40(a)(2), Ala. Code 1975, and murder committed during the
course of a burglary, see § 13A-5-40(a)(4), Ala. Code 1975,
and was sentenced to death. The Court of Criminal Appeals
affirmed his conviction and sentence. Belisle v. State, [Ms.
CR-02-2124, March 2, 2007] ___ So. 2d ___ (Ala. Crim. App.
2007). Belisle subsequently petitioned this Court for the
writ of certiorari, and we granted certiorari review to
address whether the decision of the Court of Criminal Appeals
conflicts with Giglio v. United States, 405 U.S. 150 (1972),
Ex parte Johnson, 507 So. 2d 1351 (Ala. 1986), and Cochran v.
Ward, 935 So. 2d 1169 (Ala. 2006). We also granted the writ
to address whether Alabama's method of execution is cruel and
unusual. After reviewing the record and the briefs of both
parties, we determine that the decision of the Court of
Criminal Appeals does not conflict with prior caselaw, and we
conclude that Alabama's lethal-injection protocols do not
violate
the
Eighth
Amendment
to
the
United
States
Constitution.
Facts and Procedural History
On May 19, 1999, Joyce Moore, a cashier at the T&J Kwik-
Mart convenience store in Boaz, was bludgeoned to death with
1061071
A more complete rendition of the facts relating to the
1
murder are found in the Court of Criminal Appeals' opinion.
Belisle v. State, ___ So. 2d at ___.
Annette and Belisle were indicted on two counts: murder
2
during the course of a robbery, see § 13A-5-40(a)(2), Ala.
Code 1975, and murder during the course of a burglary, see §
13A-5-40(a)(4), Ala. Code 1975.
3
a six-pound can of peas and with a metal pipe. State
1
investigators arrested Belisle and Annette Belisle, Belisle's
wife, and charged Annette with capital murder and held Belisle
on outstanding traffic warrants. Annette and Belisle were
both eventually indicted on two counts of capital murder.
2
According to Belisle, investigators interrogated Annette
on separate occasions over three days and obtained five
separate inconsistent statements. Also according to Belisle,
the State negotiated a plea agreement with Annette because
those statements were illegally obtained and thus inadmissible
at her trial. The State subsequently offered Annette a plea
agreement in which she would serve a 15-year sentence, without
the possibility of parole, in exchange for her testimony at
Belisle's
capital-murder
trial.
The
agreement
was
memorialized (hereinafter "the proffer") and provides:
"Annette Belisle is expected to cooperate fully
in all continuing facets of the investigation and
prosecution of Rick Belisle for the Capital Murder
1061071
4
of Joyce Moore on or about May 19, 1999 at [the T&J
Kwik-Mart convenience store] in Boaz, Alabama.
[Mrs.] Belisle will be required to testify fully and
truthfully at the trial of Rick Belisle. [Mrs.]
Belisle has given several statements to law
enforcement officials regarding this case. [Mrs.]
Belisle agrees that her final statement given on
June 14, 1999 to Investigator Bill Strickland was
truthful and that the truth is as follows:
"Prior to May 19, 1999 Annette and
Rick Belisle were virtually destitute,
having no money to get their van out of
impound and to finance their planned trip
to Missouri.
"In order to remedy this situation,
Rick
Belisle
proposed
to
'rob'
(technically, burglarize) the [T&J Kwik-
Mart convenience store] where Annette
Belisle had been previously employed.
"Prior to the murder, Rick Belisle had
indicated
his
intentions
to
burglarize
[the
T&J Kwik-Mart convenience store]
to
Annette
Belisle.
"Rick
Belisle
had
specifically
communicated
that
he
intended
to
burglarize
the store on the evening of May 19, 1999.
"Rick Belisle had either asked for, or
obtained
from
Annette
Belisle,
the
combination to the store's ([T&J Kwik-Mart
convenience store]) safe and the number to
the store's alarm system.
"Annette Belisle was privy to this
information
(the
combination
to
the
store's
safe and the number to the store's alarm
system) by virtue of her former employment
with this entity.
1061071
5
"Annette
Belisle
provided
this
information to Rick Belisle as per his
request by writing it down for him.
"At
Rick
Belisle's
instruction,
Annette Belisle distracted Joyce Moore on
May 19, 1999, while Rick Belisle concealed
himself in the back of the store, in
furtherance
of
their
plan to
burglarize the
store.
"In accordance with the plan, Annette
Belisle left the store at approximately
10:50 p.m. on May 19, 1999.
"Annette Belisle arrived home by 11:05
p.m.
"Rick
Belisle
returned
to
the
residence they shared at approximately
12:30 a.m.
"Testify as to Rick's appearance and
the amount of money in his possession upon
his return from the murder. (Approximately
$898.00 and some change.)
"Rick
Belisle's
initial
statement
upon
arriving home after the murder 'I think I
killed her, Annette.' (in reference to
victim, Joyce Moore, cashier/clerk of the
[T&J Kwik-Mart convenience store])
"Annette
Belisle
witnessed
Rick
Belisle cut up
coin wrappers
that contained
change stolen from T & J's and flushed them
down the toilet in their residence.
"Rick Belisle confessed to hitting
Joyce Moore eight times in [the] head with
a can of food and also to repeatedly
1061071
6
beating her about the head with a table leg
or metal pole.
"Rick Belisle described the victim
choking on her own blood as he beat her.
"Rick Belisle admitted to wearing
latex gloves, during the murder, that he
claimed to have obtained from inside the
store to comprise [sic] his fingerprints.
"Annette Belisle counted the proceeds
from the robbery and counted approximately
$898.00
in
paper
currency
and
approximately
$70.00 in change and Rick bought concert
tickets with $40.00 in quarters.
"Annette Belisle was asked by Rick
Belisle to see if he had blood in his hair
while he was taking a bath subsequent to
the murder.
"Following the murder -- the couple
fled to Missouri where they stayed with a
friend of Annette Belisle's.
"Annette Belisle agrees to testify
where the proceeds of the robbery were
spent.
"Annette Belisle reaffirms the truth of the
above portions of her earlier statement. Should
Annette Belisle lie, fail to cooperate, or fail to
fullfill fully any of the conditions of her plea
agreement in any way, the agreement will be void, as
will Belisle's guilty plea, and the charge of
capital murder, set forth in the original indictment
against her, will be reinstated and all of her
statements will be used against her in court
(subject to constitutional challenges). It shall be
unacceptable and a violation of the terms of this
agreement for Annette Belisle to 'forget' or 'fail
1061071
7
to recall' testimony previously provided and/or
mentioned specifically herein."
(Emphasis in original.) Annette, however, successfully
withdrew this plea, and the State offered her a new plea
agreement,
which
provided
that
Annette
would
receive
a
20-year
sentence and that the State would remain silent regarding the
possibility of parole.
The case against Belisle proceeded. Before his trial,
Belisle moved the trial court "for an order directing the
State to reveal the identity of all confidential informants,
to reveal any promises or understand[ings] (explicit or
implicit) with any witness or informant, and to reveal whether
any threats or inducements of any nature whatsoever have been
made regarding any witness or informant." The State, however,
did not provide the defense a copy of the proffer from
Annette's original plea agreement. It was not until the
eighth day of trial, the third day of the defense's cross-
examination of Annette, that, through Annette's testimony,
Belisle discovered the existence of the proffer.
Belisle immediately moved the trial court to strike
Annette's testimony and for a mistrial based on the fact that
1061071
8
the proffer had not been disclosed. The trial court denied
both motions, and, in doing so, stated:
"The Court finds, number one, that there was no
prosecutorial misconduct or intent on the part of
the prosecutors to hide [the proffer] from the
defense. Number two, the Court denies the mistrial.
And, number three, the Court finds that this
document, on its face, is beneficial to the
defendant and could be used to [his] benefit in this
trial. So it really wouldn't -- I mean, to order a
mistrial, I don't think -- I don't think you are
prejudiced any by the document being produced at
this -- at this hour."
Although the trial court did not grant Belisle's motions, the
proffer
was
admitted
into
evidence,
and
Belisle
cross-examined
Annette using the document.
Belisle also made a pretrial motion in which he asked the
trial court to exclude any mention of alleged prior bad acts,
specifically, any allegations of spousal abuse. The trial
court decided, and the State agreed, that the State would not
present evidence relating to any prior criminal history or bad
acts, or any instances of spousal abuse, absent notice to and
a decision from the trial court. However, one of the State's
exhibits included a fingerprint card that bore Belisle's name
and fingerprints. It stated that the charge for which the
fingerprint card had been issued was "'Harassment (DV)'" and
1061071
9
that the "'date of offense [was] "01-02-99."'" Belisle, ___
So. 2d at ___. Belisle did not object to the introduction of
the fingerprint card.
Belisle argued at trial that the State could not prove
its case beyond a reasonable doubt "because its main witness,
Annette Belisle, was testifying in order to gain her freedom."
Petition at 5. The defense also cast blame for the murder on
Annette and presented the testimony of three inmates who had
been incarcerated with Annette: Kitty Hyatt, Valerie Wheeler,
and Juanita Pitts. Kitty Hyatt testified that Annette said
she was present at the murder but that she did not strike the
victim initially. Valerie Wheeler testified that she
overheard Annette say that Annette had hit the victim with a
can of peas and that the man with her had hit the victim with
an iron bar. Juanita Pitts testified that Annette said that
she struck the initial blow with a can and then asked Belisle
to help.
The jury convicted Belisle on both counts of capital
murder. Belisle waived his right to a sentencing hearing
before the jury, and he also waived the presentation of
mitigating evidence. The trial judge sentenced Belisle to
1061071
10
death. Belisle appealed his conviction, arguing, among other
things, that he was entitled to a new trial because, he says,
the State withheld the proffer and because, he says, Belisle's
fingerprint card had been introduced into evidence. The Court
of Criminal Appeals affirmed his conviction and sentence.
Belisle v. State,
supra. Belisle
subsequently
petitioned this
Court for the writ of certiorari. We granted certiorari
review to address whether the Court of Criminal Appeals'
decision conflicts with Giglio v. United States, 405 U.S. 150
(1972), Cochran v. Ward, 935 So. 2d 1169 (Ala. 2006), and Ex
parte Johnson, 507 So. 2d 1351 (Ala. 1986). We also granted
the writ to address whether Alabama's method of execution by
lethal injection is cruel and unusual.
Discussion
A. Standard of Review
"'"This Court reviews pure questions of law in criminal
cases de novo."'" Ex parte Jett, [Ms. 1060281, July 20, 2007]
___ So. 2d ___, ___ (Ala. 2007) (quoting Ex parte Morrow, 915
So. 2d 539, 541 (Ala. 2004), quoting in turn Ex parte Key, 890
So. 2d 1056, 1059 (Ala. 2003)).
1061071
11
B. Does the Court of Criminal Appeals' decision conflict
with Giglio v. United States, 405 U.S. 150 (1972)?
Belisle argues that in not disclosing the proffer "the
State did not disclose the most significant piece of
impeachment evidence with respect to its star witness, Annette
Belisle." Belisle's brief at 6. Belisle argues that the
State's failure to disclose the proffer is grounds for
reversal; thus, Belisle argues, the Court of Criminal Appeals'
refusal to reverse the conviction conflicts with Giglio v.
United States, 405 U.S. 150 (1972). The State counters that
the proffer was irrelevant because it was associated with a
plea agreement that was rendered void and that Belisle was not
prejudiced by his late discovery of the proffer.
The Court of Criminal Appeals held that the State's
failure to disclose the proffer did not amount of reversible
error, stating:
"Here, the document that was not disclosed to
the defense was based on the first plea agreement
that the State had with Annette, which was rendered
void when she withdrew that plea. Also, both of
Annette's
plea
agreements
were
based
on
her
testifying truthfully at her husband's trial. There
is no indication, as Belisle argues, that the
prosecutor had compiled a transcript for Annette to
follow at trial. Nor is there any indication that
the defense was not given a copy of Annette's
statement
to
police.
Annette
was
thoroughly
1061071
12
cross-examined
about
her
plea
agreement
and
repeatedly said that the State had told her to
testify truthfully. Under the facts of this case,
there is no indication that the late disclosure of
the document affected the outcome of the trial."
Belisle, ___ So. 2d ___.
Belisle argues that this holding of the Court of Criminal
Appeals conflicts with Giglio v. United States, in which the
Supreme Court of the United States held:
"... Brady v. Maryland, 373 U.S. [83], at 87
[1963)], held that suppression of material evidence
justifies a new trial 'irrespective of the good
faith or bad faith of the prosecution.' See American
Bar Association, Project on Standards for Criminal
Justice,
Prosecution Function and the Defense
Function § 3.11(a). When the 'reliability of a
given witness may well be determinative of guilt or
innocence,' nondisclosure of evidence affecting
credibility falls within this general rule. Napue[v.
Illinois, 360 U.S. 264, 269 (1959)]."
405 U.S. at 153-54. However, the Supreme Court also noted in
Giglio:
"We do not, however, automatically require a new
trial whenever 'a combing of the prosecutors' files
after the trial has disclosed evidence possibly
useful to the defense but not likely to have changed
the verdict ....' United States v. Keogh, 391 F.2d
138, 148 (CA2 1968). A finding of materiality of
the evidence is required under Brady, supra, at 87.
A new trial is required if 'the false testimony
could ... in any reasonable likelihood have affected
the judgment of the jury ....' Napue, supra, at
271."
1061071
In Brady, 373 U.S. at 87, the United States Supreme Court
3
held that "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process
where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution."
See also Ex parte Brown, 548 So. 2d 993, 994 (Ala. 1989)
4
("This Court has held in Ex parte Kennedy, 472 So. 2d 1106
(Ala. 1985), cert. den., Kennedy v. Alabama, 474 U.S. 975, 106
S.Ct. 340, 88 L.Ed.2d 325 (1985), that a defendant must
demonstrate, first, that the State suppressed the evidence,
and, second, that the evidence suppressed was favorable to the
defendant or exculpatory, and, finally, that the evidence was
material.").
13
Giglio, 405 U.S. at 154. "Impeachment evidence, however, as
well as exculpatory evidence, falls within the Brady rule."
United States v. Bagley, 473 U.S. 667, 676 (1985).
Thus, under Giglio, the progeny of Brady v. Maryland, 373
U.S. 83 (1963), reversal is required when the State (1)
3
suppresses (2) evidence favorable to a defendant and (3) that
evidence is material. Therefore, in order to determine
4
whether the Court of Criminal Appeals' decision conflicts with
Giglio, we address each element.
1. Was the evidence suppressed?
Belisle argues that regardless of the status of the plea
agreement, the proffer was impeachment material to which the
defense was entitled. The State argues that it was not
1061071
It appears that the State believed that the proffer had
5
in fact been turned over to the defense. ("[District
attorney:] When I received this file, I saw this proffer, saw
the case number. I think, on record, I'll say as we were
walking out, I thought it was made part of the court file. It
was executed. So if it was not provided -- I admit I have not
provided it. It was a complete oversight. I assumed that
[the defense] had it.").
14
required
to
disclose
the
proffer
because Annette had withdrawn
from the plea agreement for which the proffer was created. We
agree that the proffer was discoverable evidence that was
suppressed.
First, one of the State's attorneys stated at trial that
he did not "dispute that [the proffer] should have been turned
over to the defense. Absolutely." Second, the State signed
5
the proffer on April 29, 2002, at which time the trial court
had already entered an order entitling Belisle to discover
"[a]ll records, notes, memoranda, and documents in the
possession of the state relating to the grant of immunity,
promises, consideration, threats or any other inducements to
any individual to obtain information or testimony about this
crime by the State and any of its law enforcement or other
1061071
The trial court entered its discovery order on October
6
26, 2001.
Section II, paragraph 3, of the trial court's discovery
7
order states "[p]ursuant to Rule 16.3 of the Alabama Rules of
Criminal Procedure, each request is continuing in nature and
additional responsive information should be revealed as soon
as it occurs."
Rule 16.3, Ala. R. Crim. P., provides:
8
"If prior to or during trial a party discovers
additional evidence or decides to use additional
evidence, which evidence has been subject to
discovery under this rule, that party shall promptly
notify the court and the opposing party of the
existence of the additional evidence."
15
agencies." Under both the terms of the order and Rule 16.3,
6
7
Ala. R. Crim. P., the State had a continuing duty to disclose
8
the requested discovery as it became available. Therefore,
the State's argument that it was not required to disclose the
proffer because the plea agreement it accompanied was later
rendered void is incorrect. At the time the plea agreement
was made and the proffer was signed, the State was obligated
to disclose the proffer because it "relat[ed] to the ...
promises, consideration, [and] threats ... to any individual
to obtain information or testimony." Therefore, we conclude
that the proffer was subject to the discovery order and was
suppressed.
1061071
16
2. Is the suppressed evidence favorable to Belisle?
Belisle contends that the proffer is "a 'script' on which
the
State's
key
witness
relied
at
trial
[that]
is
unambiguously favorable to the defense." Petition at 9. The
State argues however, that the proffer was irrelevant and not
favorable to the defense because "the evidence contained in a
null and void proffer -- detailing an agreement that was no
longer in existence" -- was not relevant to Annette's
credibility and, thus, not favorable to the defense.
"[I]mpeachment
evidence
is
favorable
evidence."
Jefferson v. State, 645 So. 2d 313, 316 (Ala. Crim. App.
1994). See also United States v. Bagley, 473 U.S. 667, 676
("Impeachment evidence ..., as well as exculpatory evidence,
falls within the Brady rule."). "We have further held that
exculpatory evidence, regardless of its trustworthiness or
admissibility, should be disclosed ...." Ex parte Brown, 548
So. 2d 993, 994 (Ala. 1989). The proffer begins by stating
that "the truth is as follows," and then outlines expected
testimony,
emphasizes
specific
passages,
threatens
to
reinstate capital
charges
if
Annette does not cooperate
fully,
and lastly notes that "[i]t shall be unacceptable and a
1061071
17
violation of the terms of this agreement for Annette Belisle
to 'forget' or 'fail to recall' testimony previously provided
and/or mentioned specifically herein." Even if the original
plea agreement and accompanying proffer were no longer in
effect, the proffer certainly casts doubt on Annette's
testimony and the State's handling of the case. Therefore,
regardless of its admissibility, the proffer is impeachment
material favorable to Belisle.
3. Is the suppressed evidence material?
"Last, but perhaps most importantly, we must determine
whether the evidence was 'material.'" Jefferson, 645 So. 2d at
316. Belisle argues that "impeaching Annette Belisle ...
was critical to the defense." Belisle's brief at 9. The
State argues that even if the proffer should have been
disclosed, the Court of Criminal Appeals was correct that
"'[u]nder the facts of this case, there is no indication that
the late disclosure of the documents affected the outcome of
the trial.'" State's brief at 19-20 (quoting Belisle, ___ So.
2d at ___).
"The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
1061071
See also United States v. Agurs, 427 U.S. 97, 112-13
9
(1976) ("It necessarily follows that if the omitted evidence
creates a reasonable doubt that did not otherwise exist,
constitutional error has been committed. This means that the
omission must be evaluated in the context of the entire
record. If there is no reasonable doubt about guilt whether
or not the additional evidence is considered, there is no
justification for a new trial. On the other hand, if the
verdict is already of questionable validity, additional
evidence of relatively minor importance might be sufficient to
create a reasonable doubt." (footnote omitted)).
18
different. A 'reasonable probability' is a probability
sufficient to undermine confidence in the outcome." United
States v. Bagley, 473 U.S. at 682. The same rule applies
9
when the State discloses Brady material in an untimely manner.
See Coral v. State, 628 So. 2d 954, 979 (Ala. Crim. App. 1992)
("Tardy disclosure of Brady material is generally not
reversible error unless the defendant can show that he was
denied a fair trial." (citing United States v. Gordon, 844
F.2d 1397 (9th Cir. 1988); United State v. Shelton, 588 F.2d
1242 (9th Cir. 1978); Ex parte Raines, 429 So. 2d 1111 (Ala.
1982); and McClain v. State, 473 So. 2d 612 (Ala. Crim. App.
1985)).
First, the issue of materiality distinguishes Belisle's
case from Giglio. In this case, the proffer was discovered and
used by the Belisle during trial, and it contained no
1061071
19
undisclosed promises or threats. In Giglio, however, "defense
counsel discovered new evidence [during the pendency of the
defendant's appeal] indicating that the Government had failed
to disclose an alleged promise made to its key witness
[Taliento] that he would not be prosecuted if he testified for
the Government." Giglio, 405 U.S. at 150-51. Furthermore, the
facts of Giglio also indicate that Taliento testified at trial
that he had received no promises for his testimony, and that
"[i]n summation, the Government attorney stated, '(Taliento)
received no promises that he would not be indicted.'" Giglio,
405 U.S. at 152. Because the facts of Giglio are
distinguishable from those in this case, the Court of Criminal
Appeals' decision in this case does not conflict with Giglio.
Even if the facts of Giglio were not distinguishable,
however, Belisle still has failed to demonstrate that had the
proffer been disclosed sooner, the outcome of his trial would
have been different. The gravamen of Belisle's arguments is
that the proffer "destroys [Annette's] credibility ... and
casts suspicion on the State's investigation and handling of
the case," Belisle's brief at 11, and that the State's failure
1061071
See also Agurs, 427 U.S. at 112 n.20 ("It has been
10
argued that the standard should focus on the impact of the
undisclosed
evidence
on
the defendant's ability
to
prepare for
trial, rather than the materiality of the evidence to the
issue of guilt or innocence. Such a standard would be
unacceptable for determining the materiality of what has been
generally recognized as 'Brady material' for two reasons.
First,
that
standard
would
necessarily
encompass
incriminating
evidence as well as exculpatory evidence, since knowledge of
the prosecutor's entire case would always be useful in
planning the defense. Second, such an approach would
primarily involve an analysis of the adequacy of the notice
given to the defendant by the State, and it has always been
the Court's view that the notice component of due process
refers to the charge rather than the evidentiary support for
the charge.").
20
to disclose the proffer "prevented [Belisle] from formulating
a key part of his defense." Belisle's brief at 12.
Belisle's second argument has been previously addressed
by this Court.
"Appellant's argument that the information would
have enabled more effective preparation for trial
was rejected in United States v. Agurs, supra, 427
U.S. [97,] at 112 n. 20, 96 S.Ct. at 2401 n. 20
[(1976)], on the grounds that an argument could
always be made that knowledge of the prosecutor's
case, both incriminating and exculpatory, would help
defense counsel in preparation of the case for the
defense. Therefore, the proper focus is upon the
materiality
in
the
nondisclosure
or
delayed
disclosure of exculpatory information in determining
the denial vel non of defendant's rights of due
process and fair trial ...."
Ex parte Raines, 429 So. 2d 1111, 1113-14 (Ala. 1982). Thus,
10
Belisle is not entitled to a new trial simply because having
1061071
21
the proffer would have enabled him to more effectively prepare
for trial.
Belisle also argues that the proffer was material because
"Belisle's theory of defense was that the State did not prove
beyond a reasonable doubt the elements of the crime because
its main witness, Annette Belisle, was lying to gain her
freedom.
Impeaching
Annette
Belisle
therefore
was
critical
to
the defense of this case." Belisle's brief at 9. He also
argues that the "revelation of this agreement committing her
to a specific version of facts would have undermined the
State's attempt to shore up Annette's credibility and would
have 'put the whole case in such a different light as to
undermine the confidence in the verdict.'" Belisle's brief at
19 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). We
disagree.
Belisle did not initially have access to the proffer;
thus, he could not at that time attack Annette's alleged
"scripted" testimony. The record, however, indicates that
Belisle had many other components of that proffer by which he
could similarly impeach Annette: Belisle was aware of and
cross-examined Annette on the fact that she was testifying as
part of a plea agreement with the State; he was aware of the
1061071
Belisle also argues:
11
"The lower court found that the fact that this
evidence [the proffer] came out before the close of
trial, allowing defense counsel an opportunity to
cross-examine Annette about it, rendered this error
harmless. This is wrong for several reasons."
Petition at 13. In support of this argument Belisle cites Ex
parte Williams, 642 So. 2d 391, 393 (Ala. 1993), Ex parte
Grandberry, 640 So. 2d 919 (Ala. 1993), Ex parte Brown, 548
So. 2d 993 (Ala. 1989), and Padgett v. State, 668 So. 2d 78
(Ala. Crim. App. 1985). However, as explained above, our
conclusion that the tardy disclosure of the proffer is not
reversible error is not premised solely on the fact that the
proffer was eventually disclosed to Belisle and that Belisle
was able to cross-examine Annette using the proffer. Instead,
as noted above, Belisle had many other components of that
proffer by which he could similarly impeach Annette, in
addition to getting the opportunity to cross-examine Annette
on the proffer and to admit the proffer into evidence.
22
original
plea agreement
with
which
the proffer
was associated;
and he used Annette's various previous statements given to
State detectives to impeach her. Additionally, once the
defense was made aware of the proffer, it was admitted into
evidence, and defense counsel had the opportunity to
thoroughly cross-examine Annette regarding it.
11
Moreover, the defense also presented other impeachment
testimony from three inmates who had been incarcerated with
Annette: Kitty Hyatt, Valerie Wheeler, and Juanita Pitts.
Kitty Hyatt testified that Annette said she was present at the
1061071
23
murder but that she had not struck the initial blow. Valerie
Wheeler testified that she overheard Annette say that Annette
had hit the victim with a can of peas and that the man with
her had hit the victim with an iron bar. Juanita Pitts
testified that Annette said that she struck the initial blow
with a can and then asked Belisle to help. Thus, although
Belisle did not originally have the proffer in his possession,
Belisle was certainly able to establish that Annette had
incentive to lie (and had lied to investigators), to
demonstrate that Annette was not a credible witness, and, once
the proffer was disclosed, to cast suspicion on the State's
investigation and handling of the case.
Although the proffer both was suppressed and was
favorable to Belisle, so as to meet those two elements, we
cannot conclude that it was material. Therefore, the decision
of the Court of Criminal Appeals does not conflict with Giglio
and Belisle is not entitled to a reversal.
C. Does the Court of Criminal Appeals' decision conflict
with Cochran v. Ward, 935 So. 2d 1169 (Ala. 2006), and Ex
parte Johnson, 777 So. 2d 1351 (Ala. 1986)?
Before trial, Belisle moved the trial court to exclude
any mention of alleged prior bad acts, specifically, any
1061071
24
allegations of spousal abuse. The trial court decided, and
the State agreed, that the State would not present evidence
relating to any prior criminal history or bad acts or any
instances of spousal abuse, absent notice to and a decision
from the trial court. However, one of the State's exhibits
included a fingerprint card that bore Belisle's name and
fingerprints and that stated that the charge for which he was
being fingerprinted was "'Harassment (DV)'" and that the
"'date of offense [was] "01-02-99."'" Belisle, ___ So. 2d at
___. Belisle did not object to the admission of the exhibit;
thus, the Court of Criminal Appeals reviewed the admission of
the fingerprint card for plain error. That court held that
"[b]ased on the unique facts presented in this case, we cannot
say that the admittance of Belisle's fingerprint card was
plain error." Belisle, ___ So. 2d at ___. The Court of
Criminal Appeals noted that "[t]here is no indication that the
jury was made aware of the contents of the fingerprint card,"
Belisle, ___ So. 2d at ___, because the card was 1 of 115
exhibits and no reference was made to the card when it was
admitted into evidence.
Belisle argues that the Court of Criminal Appeals'
conclusion conflicts with Ex parte Johnson, 507 So. 2d 1351
1061071
25
(Ala. 1986), in which this Court held that it was plain error
to admit into evidence a fingerprint card containing a list of
dates and prior arrests that had no relevance to the charged
offense except to show the bad character of the accused.
Belisle also argues that the Court of Criminal Appeals'
conclusion that "[t]here is no indication that the jury was
made aware of the contents of the fingerprint card," Belisle,
___ So. 2d at ___, conflicts with Cochran v. Ward, 935 So. 2d
1169, 1176 (Ala. 2006), which states that an appellate court
"presume[s] that the jury follows the trial court's
instructions unless there is evidence to the contrary."
1. Cochran v. Ward
First, it does not appear that the decision of the Court
of Criminal Appeals conflicts with Cochran. Although the
Court of Criminal Appeals in Belisle concluded that "[t]here
is no indication that the jury was made aware of the contents
of the fingerprint card," ___ So. 2d at ___, it does not
appear that the Court of Criminal Appeals concluded that the
jury did not examine or consider the fingerprint card.
Instead, it appears that the Court of Criminal Appeals was
merely distinguishing this case from Ex parte Johnson and
Brown v. State, 369 So. 2d 881 (Ala. Crim. App. 1979), in
1061071
26
which police officers testified regarding fingerprint cards
being admitted into evidence and, thus, focused the jury's
attention on those fingerprint cards. See Belisle, ___ So. 2d
___ ("'The circumstances of this case are clearly not as
compelling as those of Johnson and Brown.'" (quoting Thomas
v. State, 824 So. 2d 1, 18 (Ala. Crim. App. 1999))); Ex parte
Johnson, 507 So. 2d at 1354 ("On direct examination, Officer
Brand was asked whether the name of the person whose print was
taken was on both sides of the [fingerprint] card and whether
the person was asked to sign the card."); and Brown, 369 So.
2d at 883 ("Officer McDonald stated that the appellant had
been admitted to jail and fingerprinted 'about a year or two
ago' ...."). Therefore, it does not appear that the decision
of the Court of Criminal Appeals conflicts with Cochran, and
Belisle is not entitled to a reversal of his conviction or
sentence on this issue.
2. Ex parte Johnson
Belisle argues that the decision of the Court of Criminal
Appeals conflicts with Ex parte Johnson, 507 So. 2d 1351 (Ala.
1986).
"This Court has held that the exclusionary rule prevents
the State from using evidence of a defendant's prior bad acts
1061071
27
to prove the defendant's bad character and, thereby, protects
the defendant's right to a fair trial." Ex parte Drinkard,
777 So. 2d 295, 302 (Ala. 2000). Thus, under Alabama law, the
admission
of
the
fingerprint
card,
which
contained
information
about a prior arrest, was error. However, because Belisle did
not object to the admission of the card, the error will
constitute reversible error only if "'such error has or
probably has adversely affected the substantial right of the
[defendant].'" Ex parte Johnson, 507 So. 2d at 1356.
Before trial, Belisle moved the trial court to exclude
any mention of alleged prior bad acts, specifically, any
allegations of spousal abuse. The trial court decided, and
the State agreed, that the State would not present evidence
relating to any prior criminal history or bad acts or any
instances of spousal abuse, absent notice to and a decision
from the trial court. However, State's exhibit 82 included
"several ... documents –- a time card, a two-page letter to
the
Alabama
Public
Safety
Department,
a
fingerprint-examination request form, and a copy of a
fingerprint card for Annette, and a copy of a fingerprint card
that bears the name 'Rick Allen Belisle.'" Belisle, ___ So.
2d at ___. The exhibit was admitted with some testimony
1061071
It appears that the following colloquy is the only
12
mention of the admitted fingerprint card during trial:
"Q.[Prosecution]: I'm going to show you what has
been marked as State's Exhibit 82. What's in State's
Exhibit 82?
"A. [Detective Turner]: The time card of Joyce Moore
at [the T&J Kwik-Mart convenience store], some
fingerprint cards, and a letter from DFS, Department
of Forensic Science.
"Q. So they tried to match fingerprints to that time
card, didn't they?
"A. Yes, sir.
"Q. And they didn't find any fingerprints belonging
to Rick Belisle, did they?
"A. No, sir."
28
regarding its contents, without objection from Belisle, and,
12
apparently, without specific approval from the trial court.
Belisle, ___ So. 2d at ___. Because there was no objection to
the admission of this exhibit, we are limited to reviewing
this issue for plain error. See Rule 45A, Ala.R.App.P.
The front of Belisle's fingerprint card includes the date
the fingerprints were taken, Belisle's fingerprints, his
signature,
his
vital
statistics,
and
other
personal
information. It also contains the "Signature of Official
Taking Fingerprints," a box titled "CHARGE" in which
1061071
29
"Harassment (DV)" is written, a box titled "DATE ARRESTED OR
RECEIVED" in which "01-02-99" is written, and a box titled
"YOUR NO. OCA" in which 0199003 is written. It also contains
boxes titled "FINAL DISPOSITION," "ALIASES," "FBI NO.," and
"SID NO.," but these were left blank. The reverse of the
fingerprint card included Belisle's address, as well as "01-
02-99" written in a box entitled "DATE OF OFFENSE."
The Court of Criminal Appeals, addressing the admission
of the fingerprint card under the plain-error standard of
review, concluded:
"Based on the unique facts presented in this case,
we cannot say that the admittance of Belisle's
fingerprint card was plain error. Even if the
jurors examined the exhibit, '[i]t is inconceivable
that a jury could have been influenced, under the
circumstances here, to convict [the appellant] of
crimes of the magnitude charged here because of an
oblique reference to a prior criminal record."
Belisle, ___ So. 2d at ___. Belisle argues that this holding
by the Court of Criminal Appeals conflicts with Ex parte
Johnson.
In Ex parte Johnson this Court addressed whether the
admission of Johnson's fingerprint card was plain error and
required a reversal of Johnson's conviction. 507 So. 2d at
1352. In that case, the front of Johnson's fingerprint card
1061071
30
contained Johnson's name, an alias, "a series of police
numbers and an FBI number, the fingerprints themselves, and
the signature of the taker of the impressions and the date of
the card." 507 So. 2d at 1352. The reverse of the
fingerprint card included Johnson's signature, the offense
charged at the time the fingerprints were taken, and a list of
dates of arrest, which
"show[ed] an arrest for burglary in 1977 followed by
a release, an arrest for burglary and grand larceny
in 1977 followed by a release, an arrest in 1978 for
grand larceny from a person followed by a release,
and the present charge of murder in 1978 followed by
a delivery to the sheriff's office. The card also
show[ed] the original arrest in 1973 for robbery
followed by a delivery to the sheriff's office."
507 So. 2d at 1352-53.
At trial, the State admitted Johnson's fingerprint card
into evidence without objection, and a police officer
testified regarding the exhibit. See Ex parte Johnson, 507
So. 2d at 1354. It appears that the front of Johnson's
fingerprint card was admitted into evidence, but it is unclear
whether the reverse of the fingerprint card was admitted as
well. 507 So. 2d at 1354 ("'It is not clear whether a
photocopy of only the front of [State's exhibit] 'EE' was
received into evidence or whether a copy of both front and
1061071
31
back were received into
evidence.'"
(quoting
Johnson v. State,
507 So. 2d 1337, 1342 (Ala. Crim. App. 1985))).
Johnson was subsequently convicted of capital murder and
was sentenced to death. The Court of Criminal Appeals
affirmed Johnson's conviction and sentence. Johnson v. State,
507 So. 2d 1337 (Ala. Crim. App. 1985). The Court of Criminal
Appeals concluded that Johnson had waived his right to appeal
the admission of the fingerprint card because he was aware of
the contents of the card but did not object when it was
admitted into evidence. The Court of Criminal Appeals also
concluded that "this is a case where evidence of guilt is so
overwhelming that evidence of previous arrests was not
significant, and its admission was harmless error in light of
the strong evidence identifying Johnson as the perpetrator."
Johnson, 507 So. 2d at 1344.
This Court granted certiorari review in Johnson. We
first noted that
"[i]t is apparent that the Court of Criminal
Appeals concluded that a substantial right of the
defendant had not been, or probably had not been,
adversely affected by the admission of state's
exhibit 'EE.' As we read the opinion, this
conclusion is based upon its determination that
evidence
of
the
defendant's
guilt
was
'so
overwhelming that evidence of previous arrests was
not significant, and its admission was harmless
1061071
32
error in light of the strong evidence identifying
[the defendant] as the perpetrator.' However, the
proper inquiry here is not whether evidence of the
defendant's guilt is overwhelming but, instead,
whether a substantial right of the defendant has or
probably has been adversely affected."
507 So. 2d at 1356. We then concluded:
"In the present case, the copy showing the front
of exhibit 'EE' contained information which clearly
revealed the defendant's past contacts with law
enforcement agencies. From this the jury could have
readily inferred, at a minimum, that he had been
arrested in the past. In our view, such an
inference would have had an almost irreversible
impact upon the minds of the jurors."
507 So. 2d at 1357.
Belisle contends that Ex parte Johnson is controlling,
and he argues that the fingerprint card "leaves no room for
question that [Belisle] had recently been charged with [an]
offense. The reference to this prior charge was more than
likely to have [a] tremendous impact on the jury." Belisle's
brief at 25. The State counters, arguing that "a reversal is
not required in this case because the admission of [the]
fingerprint card in this case is distinguishable from the
admission of the prejudice[cial] information [found on the
fingerprint card] in Ex parte Johnson." State's brief at 35.
The State, like the Court of Criminal Appeals below,
argues that this case is distinguishable from Ex parte
1061071
The State also cites Maples v. State, 758 So. 2d 1, 61-
13
62 (Ala. Crim. App. 1999). However, Maples is clearly
distinguishable from this case because, in Maples, "[t]he
redacted copy of the fingerprint card did not contain any
reference to the appellant's prior arrest record. The
offenses involved and the headings 'Date Arrested' and 'Date
of Offense' were deleted from the copy of the fingerprint
card." 758 So. 2d at 62.
33
Johnson, and analogous to Thomas v. State, 824 So. 2d 1
(1999), rev'd on other grounds, Ex parte Carter, 889 So. 2d
528 (Ala. 2004). In Thomas, the defendant's fingerprint card
13
was admitted without objection and contained,
"[i]n
addition
to
Thomas's
fingerprints,
...
his
name and signature, an alias ('Tank'), his date and
place of birth, his physical description, and his
Social Security number. Below the signature blank
appeared
the
sentence:
'THIS
DATA
MAY
BE
COMPUTERIZED IN LOCAL, STATE AND NATIONAL FILES.'
The card also contained the name of the 'OFFICIAL'
who took the fingerprints and the following
information blocks with the information supplied as
indicated:
'DATE
ARRESTED
OR
RECEIVED
DOA'-
'09-17-92';
'YOUR
NO.
OCA'-'COO62417';
'FBI
NO.'-[blank]; 'SID NO.'-[blank]; 'CAUTION'-[blank];
'STATE USAGE'-[blank]; 'NCIC CLASS-FPC'-[blank];
'CONTRIBUTOR'-'AL0020000 SO MOBILE, AL.'; 'CLASS.'-
[blank]; 'REF.'-[blank]; and 'FBI'-[blank]. (R.
531.) There was no reference to the charge of any
offense."
824 So. 2d at 15-16 (capitalization in original). The Court
of Criminal Appeals in Thomas concluded that there was no
plain error, stating that "we believe the possibility of
prejudice that resulted from the admission of the fingerprint
1061071
34
card was remote." 824 So. 2d at 20. In so concluding, the
Thomas court noted that the only reference to contact with law
enforcement was a date in the box entitled "DATE ARRESTED OR
RECEIVED" and thus determined that "the nature of Thomas's
presumed contact with law enforcement authorities was
'oblique.'" Thomas, 824 So. 2d at 19. Additionally, the Court
of Criminal Appeals in Thomas noted that its conclusion that
the admission of the fingerprint card was not plain error "is
buttressed by the fact that defense counsel apparently did not
notice any allegedly potentially prejudicial information on
the card when he viewed it, as disclosed by the record" and
the fact that "testimony at trial contained references,
properly admitted into evidence, to Thomas's illegal drug
activity." Id.
We find Thomas distinguishable from this case. The
fingerprint card in Thomas contained "no reference to the
charge of any offense" and merely showed a date in the "DATE
ARRESTED OR RECEIVED." 824 So. 2d at 19. In this case,
however, a charge is listed on the fingerprint card, and, in
addition to the date entered in the box entitled "DATE
ARRESTED OR RECEIVED," the box entitled "DATE OF OFFENSE" is
completed. Further, there is no argument by the State that,
1061071
35
in this case, there was testimony regarding any previous
illegal activities in which Belisle may have been involved.
We conclude that this case is distinguishable from Thomas
and Maples v State, 758 So. 2d 1 (Ala. Crim. App. 1999) (see
note 13), we also conclude that it is distinguishable from Ex
parte Johnson. As the State notes, the fingerprint card in
this case was admitted as an exhibit along with "several other
documents –- a time card, a two-page letter to the Alabama
Public Safety Department, a fingerprint-examination request
form, and a copy of a fingerprint card for Annette ....," with
little testimony regarding the exhibit and apparently no
specific mention of Belisle's fingerprint card. Belisle, ___
So. 2d at ___. The fingerprint card in Ex parte Johnson was
admitted as a separate exhibit and was accompanied by
extensive testimony. 507 So. 2d at 1341, rev'd, Ex parte
Johnson, supra (discussing the testimony of at least two
witnesses
who
testified
regarding
the
defendant's
fingerprints
and the fingerprint card).
The information found on Belisle's fingerprint card
further distinguishes this case from Ex parte Johnson. Unlike
Johnson's fingerprint card, Belisle's fingerprint card does
not contain an alias. Even though it is unclear whether the
1061071
Belisle has not argued, and we do not address, whether
14
Alabama's form of execution constitutes cruel and unusual
punishment under Alabama's Constitution. See Art. I, § 15
("That excessive fines shall not be imposed, nor cruel or
unusual punishment inflicted.").
36
reverse of Johnson's fingerprint card (which contained the
list of prior arrests) was admitted at his trial, the front of
the card contained "a series of police numbers and an FBI
number" that "clearly revealed the defendant's past contacts
with law enforcement agencies." 507 So. 2d at 1357. Here,
Belisle's fingerprint card contains only one charge, and a
date of offense that coincides with the "DATE ARRESTED OR
RECEIVED."
Ex
parte
Johnson is therefore
distinguishable from
this case. Moreover, the other caselaw cited by Belisle does
not support a reversal of his conviction and sentence. Thus,
the Court of Criminal Appeals did not err by determining that
the admission of the fingerprint card was harmless error.
D. Does Alabama's method of execution constitute cruel
and unusual punishment in violation of the Eighth Amendment?
Belisle argues that "Alabama's method of execution
constitutes cruel and unusual punishment in violation of the
Eight Amendment." Petition at 158; Belisle's brief at 29.
14
1061071
See Harbison v. Little, 511 F. Supp. 2d 872, 883 (M.D.
15
Tenn. 2007) ("It is undisputed that, without proper
37
In Alabama, lethal injection is the method of execution
of a death sentence unless the inmate chooses electrocution.
See § 15-18-82(a), Ala. Code 1975 ("Where the sentence of
death is pronounced against a convict, the sentence shall be
executed ... as the court may adjudge, by lethal injection
unless the convict elects execution by electrocution as
provided by law.").
Belisle notes that "Alabama's lethal injection execution
procedure, which is similar to the procedure typically used by
lethal
injection
states,
proscribes
the
sequential
administration
of
sodium
thiopental
for
anaesthesia,
pancuronium bromide or Pavulon to induce paralysis, and
potassium chloride." Belisle's brief at 30. He contends,
however,
that
evidence
indicates
that
"the
three-drug
protocol
creates an unnecessary risk of agonizing pain." Id. The risk
of unnecessary pain and suffering arises, says Belisle, "if
the sedative effect of the sodium thiopental is ineffective
and the inmate has retained or regained conscious[ness]" when
the State administers the final two drugs to induce paralysis
and death. Belisle's brief at 31. Belisle argues that "the
15
1061071
anaesthesia, the administration of pancuronium bromide and
potassium
chloride,
either
separately
or
in
combination,
would
result in a terrifying, excruciating death. The basic
mechanics are that the inmate would first be paralyzed and
suffocated (because the paralysis would make him unable to
draw breath), then feel a burning pain throughout his body,
and then suffer a heart attack while remaining unable to
breathe.").
38
State of Alabama has taken none of the steps necessary to
safeguard against unnecessary pain and suffering." Belisle's
brief at 30. Specifically, Belisle contends that the method
employed
by
Alabama
to
check
an
inmate's
level
of
consciousness after the administration of the first drug --
sodium thiopental -- is insufficient. Belisle's brief at 37-
38.
The State argues that "Alabama's execution protocol is
designed to minimize pain and is not inherently cruel and
unusual." State's brief at 47. It notes that "Alabama
eliminates the risk of unnecessary pain by using 2.5 grams of
sodium thiopental –- itself a lethal dose -– to sufficiently
anesthetize the inmate." State's brief at 52-53. The State
notes that "[a]s an additional safeguard to ensure that the
inmate
is
properly
anesthetized,
the
Department
of
Corrections
recently
modified
the
execution
protocol
to
add
a
1061071
39
consciousness assessment." These additional safeguards
include
"(1) examination of the prisoner by an execution
team member, following administration of the sodium
[thiopental] but before administration of the
pancuronium bromide, to assess his consciousness (by
calling his name, gently stroking his eyelashes, and
pinching his arm); and (2) administration of a
second dosage of sodium [thiopental] if the
preceding examination reveals consciousness."
Arthur v. Allen (Civil Action 07-0722-WS-M, Nov. 15, 2007)
(S.D. Ala. 2007) (not published in F. Supp. 2d). Thus, the
State contends that Alabama's lethal-injection procedures do
not constitute cruel and unusual punishment.
The Eighth Amendment to the United States Constitution
provides:
"Excessive
bail
shall
not
be
required,
nor
excessive
fines imposed, nor cruel and unusual punishments inflicted."
"Punishments are cruel when they involve torture or a
lingering death; but the punishment of death is not cruel
within the meaning of that word as used in the constitution.
It
implies
there
something inhuman
and barbarous,
--
something
more than the mere extinguishment of life." In re Kemmler, 136
U.S. 436, 447 (1890). However, as the Supreme Court of the
United States recently stated in Baze v. Rees, ___ U.S. ___,
128 S.Ct. 1520 (2008):
1061071
40
"Our cases recognize that subjecting individuals to
a risk of future harm -- not simply actually
inflicting pain -- can qualify as cruel and unusual
punishment. To establish that such exposure
violates
the
Eighth
Amendment,
however,
the
conditions presenting the risk must be 'sure or very
likely to cause serious illness and needless
suffering,' and give rise to 'sufficiently imminent
dangers.' Helling v. McKinney, 509 U.S. 25, 33,
34-35 (1993) (emphasis added). We have explained
that to prevail on such a claim there must be a
'substantial risk of serious harm,' an 'objectively
intolerable risk of harm' that prevents prison
officials from pleading that they were 'subjectively
blameless for purposes of the Eighth Amendment.'
Farmer v. Brennan, 511 U.S. 825, 842, 846, and n. 9
(1994)."
___ U.S. at ___, 128 S.Ct. at 1530-31.
In Baze, two death-row inmates challenged Kentucky's use
of the three-drug protocol, arguing "that there is a
significant risk that the procedures will not be properly
followed -- in particular, that the sodium thiopental will not
be properly administered to achieve its intended effect --
resulting in severe pain when the other chemicals are
administered." ___ U.S. at ___, 128 S.Ct. at 1530. Belisle's
claim, like the claims made by the inmates in Baze, "hinges on
the improper administration of the first drug, sodium
thiopental." Baze, ___ U.S. at ___, 128 S.Ct. at 1533.
The Supreme Court upheld the constitutionality of
Kentucky's method of execution, Baze, ___ U.S. at ___, 128
1061071
41
S.Ct. at 1538, and noted that "[a] State with a lethal
injection protocol substantially similar to the protocol we
uphold today would not create a risk that meets this
standard." Baze, ___ U.S. at ___, 128 S.Ct. at 1537. Justice
Ginsburg and Justice Souter dissented from the main opinion,
arguing that "Kentucky's protocol lacks basic safeguards used
by other States to confirm that an inmate is unconscious
before injection of the second and third drugs." Baze, ___
U.S. at ___, 128 S.Ct. at 1567 (Ginsburg, J., dissenting). The
dissenting Justices recognized, however, that Alabama's
procedures,
along
with
procedures
used
in
Missouri,
California, and Indiana "provide a degree of assurance --
missing from Kentucky's protocol -- that the first drug had
been properly administered." Baze, ___ U.S. at ___, 128 S.Ct.
at 1571 (Ginsburg, J., dissenting).
The State argues, and we agree, that Belisle, like the
inmates in Baze, cannot meet his burden of demonstrating that
Alabama's lethal-injection protocol poses a substantial risk
of harm by asserting the mere possibility that something may
go wrong. "Simply because an execution method may result in
pain, either by accident or as an inescapable consequence of
death, does
not establish the
sort
of
'objectively intolerable
1061071
42
risk of harm' that qualifies as cruel and unusual." Baze, ___
U.S. at ___, 128 S.Ct. at 1531. Thus, we conclude that
Alabama's use of lethal injection as a method of execution
does not violate the Eighth Amendment to the United States
Constitution.
Conclusion
For the foregoing reasons, we hold that the decision of
the Court of Criminal Appeals does not conflict Giglio v.
United States, 405 U.S. 150 (1972), Cochran v. Ward, 935 So.
2d 1169 (Ala. 2006), or Ex parte Johnson, 507 So. 2d 1351
(Ala. 1986), and that Alabama's use of lethal injection as a
method of execution does not violate the Eighth Amendment.
AFFIRMED.
Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Murdock, J., concurs in the result.
Cobb, C.J., recuses herself. | October 3, 2008 |
400b5ec8-480a-4b3d-bf56-96395894dca3 | Ex parte G. Thomas Surtees, as commissioner of the Alabama Department of Revenue. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Vulcan Lands, Inc. v. G. Thomas Surtees, as commissioner of the Alabama Department of Revenue) | N/A | 1070386 | 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
_________________________
1070386
_________________________
Ex parte G. Thomas Surtees, as commissioner of the Alabama
Department of Revenue
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Vulcan Lands, Inc.
v.
G. Thomas Surtees, as commissioner of the Alabama Department
of Revenue)
_________________________
1070399
_________________________
Ex parte Vulcan Lands, Inc.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
While this petition was pending, Tim Russell replaced G.
1
Thomas Surtees as the commissioner of the Alabama Department
of Revenue. Rule 43(b), Ala. R. App. P., provides: "When a
public officer is a party to an appeal or other proceeding in
the appellate court in that officer's official capacity, and
during its pendency dies, resigns, or otherwise ceases to hold
office, the action shall not abate and the public officer's
successor is automatically substituted as a party."
2
(In re: Vulcan Lands, Inc.
v.
G. Thomas Surtees, as commissioner of the Alabama Department
of Revenue)
(Montgomery Circuit Court, CV-01-1106;
Court of Civil Appeals, 2060607)
WOODALL, Justice.
G. Thomas Surtees, as commissioner of the Alabama
Department of Revenue ("the Department"), and Vulcan Lands,
1
Inc. ("Vulcan"), sought certiorari review in case nos. 1070386
and 1070399, respectively, of an opinion of the Court of
Civil Appeals in Vulcan's action seeking a refund of franchise
taxes it paid pursuant to former Ala. Code 1975, § 40-14-41.
We affirm in case no. 1070386 and reverse and remand in case
no. 1070399.
I. Background
This case is another chapter in the long-running dispute
over franchise taxes assessed against foreign corporations
1070386 and 1070399
3
under § 40-14-41. In White v. Reynolds Metals Co., 558 So. 2d
373 (Ala. 1989), this Court upheld § 40-14-41 against a claim
that it violated the Commerce Clause of the United States
Constitution. The United States Supreme Court denied
certiorari review in that case. In South Central Bell
Telephone Co. v. Alabama, 526 U.S. 160 (1999) ("SCB I"),
however, the Supreme Court struck down § 40-14-41 as violative
of the Commerce Clause. The Court did not discuss remedies
available to parties who have paid taxes under § 40-14-41, but
merely remanded the case "for further proceedings not
inconsistent with [the] opinion." 526 U.S. at 171. In South
Central Bell Telephone Co. v. State, 789 So. 2d 147 (Ala.
2000) ("SCB II"), this Court discussed "what remedy, if any,
should be fashioned." 789 So. 2d at 148 (emphasis added). We
remanded the case "for the parties to present evidence dealing
with the issues" regarding an appropriate remedy. 789 So. 2d
at 151. On remand, before this Court could determine an
appropriate remedy for the plaintiff taxpayers, the parties
settled their dispute.
The opinion of the Court of Civil Appeals in this case
sets forth the following facts:
1070386 and 1070399
4
"On March 15, 1999, eight days before the United
States Supreme Court delivered its decision in [SCB
I], Vulcan ..., a corporation incorporated under the
laws of the State of New Jersey, paid the Department
$29,890 in franchise tax. On August 31, 1999,
approximately five months after the United States
Supreme Court delivered its decision in [SCB I],
Vulcan ... voluntarily paid an additional $371 in
franchise tax to the Department.
"On August 28, 2000, Vulcan ... petitioned the
Department for a refund of the $30,261 in franchise
tax Vulcan ... had paid during 1999. The Department
did not respond to [Vulcan's] petition within six
months. Consequently, pursuant to § 40-2A-7(c)(3),
Ala. Code 1975, the petition ... was deemed denied.
"Vulcan ... appealed from the denial of its
petition to the Montgomery Circuit Court on April
16, 2001."
Vulcan Lands, Inc. v. Surtees, [Ms. 2060607, November 30,
2007] ___ So. 2d ___, ___ (Ala. Civ. App. 2007).
In an interrogatory propounded to the Department, Vulcan
asked: "State every reason, whether legal or factual, that the
[Department] contends is a basis for affirmance of the
Department's denial of Vulcan's Foreign Franchise Tax Refund
Petition filed in connection with Vulcan's 1999 Alabama
Foreign Franchise Tax Return." In response, the Department
stated (1) that the "outstanding claims of foreign franchise
taxpayers ... total over $269,000,000"; (2) that it expected
the evidence to show that the State was in a "unique position"
1070386 and 1070399
5
to suffer a hardship "that would be inflicted on the
infrastructure of the State from paying the outstanding
claims"; and (3) that "the Defendant reasonably relied on
published case law, [namely,] White v. Reynolds Metals Co.,
558 So. 2d 373 (Ala. 1989)," in collecting the taxes.
The parties filed cross-motions for a summary judgment.
In its motion, Vulcan argued that there was no genuine issue
of material fact with respect to the availability of the
defense that the State had relied on now overruled precedent
and that the State faces extreme hardship if it is forced to
refund the taxes ("the reliance-hardship defense") and that
the reliance-hardship defense was unavailable as a matter of
law. The trial court granted the commissioner's motion and
denied Vulcan's motion, holding that Vulcan had failed to show
that it had been injured by disparate tax treatment and that,
therefore, it was not entitled to any refund. More
specifically, the trial court stated:
"'[Vulcan] filed this action with this Court
seeking a tax refund of its 1999 foreign franchise
tax. The unconstitutionality of Alabama's franchise
tax scheme is well settled. South Central Bell
Telephone Co. v. Alabama, 526 U.S. 160, 119 S. Ct.
1180, 143 L. Ed. 2d 258 (1999).... Further, it is
well established that the Taxpayer bears the burden
of proving that it suffered discrimination because
1070386 and 1070399
6
of the unconstitutional franchise tax scheme, that
is, the Taxpayer bears the burden of proving that it
was injured. Gregg Dyeing Co. v. Query, 286 U.S.
472, 481-82, 52 S. Ct. 631, 76 L. Ed. 1232 (1932).
"'A taxpayer's injury, that is, its refund
amount, is the difference between what it actually
paid
and
what
a
similarly
situated
domestic
competitor would have paid. As the United States
Supreme Court noted in McKesson Corp. v. Division of
Alcoholic Beverages and Tobacco, 496 U.S. 18, 110 S.
Ct. 2238, 110 L. Ed. 2d 17 (1990), "the State may
cure the invalidity of the [unconstitutional tax] by
refunding to petitioner the difference between the
tax it paid and the tax it would have been assessed
were it extended the same rate reductions that its
competitors actually received." 496 U.S. at 40-41.
"'... Competitive injury is the basis of a
Commerce Clause violation. If a company has no
competition,
and
specifically
no
in-state
competition, it cannot prove harm. Thus a taxpayer
cannot prove economic damage from its status of
being "disfavored" without the presence of a
"favored" competitor, and that favored competitor's
existence must be actual, that is, not speculative.
Gregg Dyeing Co. v. Query, 286 U.S. 472, 481, 52 S.
Ct. 631, 76 L. Ed. 1232 (1932). "Hence, the salient
feature of the position petitioner 'should have
occupied' absent any Commerce Clause violation is
its equivalence to the position actually occupied by
petitioner's favored competitors." McKesson, 496
U.S. at 42.
"'Under the facts presented in this case,
[Vulcan] offered no specific evidence of a domestic
competitor, and consequently there is no injury and
therefore
no
refund
due.
Furthermore,
the
[Department]
offered
undisputed
evidence
that
[Vulcan] is not a normal competitive entity.
[Vulcan] is merely a holding company and is an
entity that was formed for the administrative
1070386 and 1070399
7
efficiency of the group, and it is insulated from
the normal competitive pressures by virtue of its
relationship with its parent company. [Vulcan's]
corporate representative testified to the same.
([The Department's] Brief in Support of Motion for
Summary Judgment, Exhibit B, Reese deposition, pp.
14-15, 20-22, and 121-22.)
"'[Vulcan] has not carried its burden of proving
that it had domestic competition such that it was
discriminated against or disfavored by the tax.
[Vulcan] has not suffered any injury in this case.
"[I]n
the
absence
of
actual
or
prospective
competition between the supposedly favored and
disfavored entities in a single market there can be
no local preference...." General Motors Corp. v.
Tracy, 519 U.S. 278, 300, 117 S. Ct. 811, 136 L. Ed.
2d 761 (1997).'"
Surtees, ___ So. 2d at ___ (emphasis added). From that
judgment, Vulcan appealed, contending that the trial court
erred in granting the Department's summary-judgment motion and
in refusing to grant Vulcan's motion as to the unavailability
of the reliance-hardship defense.
On appeal, the Court of Civil Appeals reversed the
summary judgment to the extent it had granted the Department's
summary-judgment motion. However, it rejected Vulcan's
argument that it was entitled to a summary judgment as to the
Department's reliance-hardship defense. In that connection,
the court stated:
1070386 and 1070399
8
"[A]
state
may
[redress
an
unconstitutional
deprivation of tax payments] by (1) giving the
taxpayer a refund, (2) collecting back taxes from
the favored class, (3) combining aspects of (1) and
(2), (4) barring a refund to a taxpayer that did not
follow a state procedural law in seeking a refund,
or (5) refusing to give a remedy, in the rare case
in which the state relied on now overturned
precedent and the state now faces an extreme
hardship if it must give a remedy. ...
"In the case now before us, it is undisputed
that the Department has elected not to collect back
taxes from the favored class and that Vulcan Lands
has followed Alabama procedural law governing claims
seeking refunds. Therefore, the United States
Supreme Court's holding in [SCB I] required the
Department either (1) to give Vulcan ... a refund or
(2) to prove that the Department relied on now
overturned precedent and that the State now faces an
extreme hardship if it must give Vulcan ... a
refund.
"....
"As
one
of
its
affirmative
defenses
to
[Vulcan's] refund claim, the Department asserted
that the State was entitled to refuse to give Vulcan
... a remedy for its payment of taxes pursuant to
Alabama's
unconstitutional
franchise-tax
scheme
because, the Department said, it had relied on now
overturned precedent and the State now faces an
extreme hardship if it must give Vulcan ... a
refund. In support of this defense, the Department
introduced substantial evidence tending to prove
that the Alabama Supreme Court had held in White v.
Reynolds Metals Co., 558 So. 2d 373, that Alabama's
franchise-tax scheme did not violate the Commerce
Clause; ... and that no decision of the United
States Supreme Court had held that Alabama's
franchise-tax scheme or any comparable state tax
scheme violated the Commerce Clause before the
1070386 and 1070399
9
United States Supreme Court decided [SCB I]. The
Department also introduced substantial evidence
tending to prove that the State would incur an
extreme financial hardship if it is required to
refund the franchise taxes paid by all foreign
taxpayers who had requested refunds. At the very
least, this evidence established the existence of a
genuine issue of material fact with respect to
[Vulcan's] summary-judgment motion. Therefore, the
trial court did not err in denying [Vulcan's]
summary-judgment motion."
Surtees, ___ So. 2d at ___ (emphasis added).
Subsequently, both parties petitioned this Court for
certiorari review. The Department, in case no. 1070386,
asserts, among other things, that the opinion of the Court of
Civil Appeals conflicts with a prior decision of the Supreme
Court of the United States, namely, McKesson Corp. v. Division
of Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990). Vulcan,
in case no. 1070399, asserts, among other things, that the
opinion presents a question of first impression in this Court,
namely, whether the reliance-hardship defense is available, as
a matter of law, to the Department. We granted the petitions
and consolidated them for the purpose of writing one opinion.
II. Discussion
1070386 and 1070399
10
For ease of discussion, we will first address the
availability of the reliance-hardship defense as presented in
case no. 1070399.
A. Case No. 1070399
The Court of Civil Appeals held that Vulcan was not
entitled to a summary judgment as to the Department's right to
assert a reliance-hardship defense. More specifically, it
concluded that there was substantial evidence creating a
genuine issue of material fact on the issue whether this was
that "rare case in which the state relied on now overturned
precedent and the state now faces an extreme hardship if it
must give a remedy." Surtees, ___ So. 2d at ___ (emphasis
added). Vulcan contends that the court erred as to this
question of first impression.
The parties agree that, in any such "rare case," the
reliance-hardship defense is a two-pronged one and that both
prongs must be satisfied. As for the first prong, the
Department contends that it "reasonably relied on [overturned]
precedent in administering the former franchise tax scheme."
Department's reply brief, at 22 (emphasis added). Vulcan,
however, contends that, by March 15, 1999, the date of its
1070386 and 1070399
11
first 1999 franchise-tax payment, the Department had abandoned
any reliance on such precedent. We agree.
In SCB I, the Court stated:
"Rather than [join issue with South Central Bell
Telephone Company as to whether Alabama's franchise-
tax scheme complies with established Commerce Clause
caselaw],
the
[Department] instead says, with
'respect
to
the
merits,'
that
'the
flaw
in
petitioners' claim lies not in the application to
Alabama's corporate franchise tax of this Court's
recent negative Commerce Clause cases; the flaw lies
rather in the negative Commerce Clause cases
themselves.'
Brief
of
Respondents
3.
The
[Department] adds that the Court should 'formally
reconsider' and 'abando[n]' its negative Commerce
Clause jurisprudence."
526 U.S. at 170-71 (emphasis added). Thus, it is clear that
on January 19, 1999, the date the case was argued in the
United States Supreme Court, the Department was, in fact, no
longer relying on the cases on which it now purports to have
later "reasonably relied." In other words, it was not relying
on "overturned precedent" when it accepted Vulcan's 1999
franchise-tax payments. Because the Department cannot satisfy
the first prong of the reliance-hardship defense, the defense
is inapplicable to Vulcan's franchise-tax-refund claim as a
matter of law. The Court of Civil Appeals erred, therefore,
in holding that Vulcan was not entitled to a summary judgment
1070386 and 1070399
12
on the reliance-hardship defense. To the extent that it so
held, the judgment of the Court of Civil Appeals is reversed,
and the case is remanded.
B. Case No. 1070386
According to the Department, the trial court correctly
applied that portion of McKesson, which says that "the State
may cure the invalidity of the [unconstitutional tax] by
refunding to petitioner the difference between the tax it paid
and the tax it would have been assessed were it extended the
same rate reductions that its competitors actually received."
496 U.S. at 40 (emphasis added). Seizing on McKesson's use of
the term "favored competitors," the Department attempts to
support the trial court's holding that Vulcan failed to
identify sufficiently a specific competitor for the purpose of
proving that it suffered an injury.
The Department's position is that "[a] taxpayer must
stand in the place of the very domestic corporation it claims
was advantaged by the tax in order to determine the extent, if
any, to which it was disadvantaged as a foreign corporation."
Department's
brief,
38-39
(emphasis
added).
This
position,
as
1070386 and 1070399
13
we understand it, is best illustrated by the following example
posited by the Department:
"Consider a [foreign] corporation established by a
group of partners of a law firm for the sole purpose
of owning the building in which the law firm will do
business. The corporation may own real property
suitable for law firm operations, but it does not
compete with [domestic] commercial real estate
corporations that own property in which law firms
could do business. In fact, like [Vulcan] here, it
does not compete with any other corporation."
Department's reply brief, at 17 (emphasis added). Apparently,
the foreign corporation in the Department's example would be
sufficiently similar to the domestic corporation only if both
corporations were established by lawyers for the sole purpose
of owning the building in which they practice law. The
Department thus requires a foreign taxpayer to identify a
specific domestic corporation that is its virtual mirror image
as a prerequisite to a refund. In so doing, it misconstrues
McKesson.
McKesson involved the remedy available to taxpayers that
had paid taxes under a Florida liquor-excise-tax scheme that
violated the Commerce Clause. The Florida state courts had
correctly held the tax unconstitutional but had granted only
1070386 and 1070399
The taxpayer in McKesson was a "licensed wholesale
2
distributor of alcoholic beverages whose products did not
qualify for [special] rate reductions," 496 U.S. at 23, "for
certain specified citrus, grape, and sugarcane products, all
of which are commonly grown in Florida and used in alcoholic
beverages produced there." Id.
14
prospective relief. 496 U.S. at 31. The Court held that,
2
"[i]f a State places a taxpayer under duress promptly to pay
a tax when due and relegates him to a postpayment refund
action in which he can challenge the tax's legality, the Due
Process Clause ... obligates the State to provide meaningful
backward-looking relief to rectify any unconstitutional
deprivations," 496 U.S. at 31 (footnote omitted), including,
in some cases, a refund. 496 U.S. at 40-41.
In its discussion, the Supreme Court, as the Department
points out, often used the term "favored competitors."
However, there was no issue in McKesson regarding the
existence of favored competitors. "It [was] undisputed that
[they were the] manufacturers and distributors of [alcoholic]
beverages [made from local products] which qualif[ied] for
preferential treatment under [the challenged] scheme."
Division of Alcoholic Beverages & Tobacco v. McKesson Corp.,
524 So. 2d 1000, 1008 (Fla. 1988), rev'd on other grounds, 496
1070386 and 1070399
15
U.S. 18 (1990). The Court used the phrase interchangeably
with
"favored
distributors"
throughout;
once
with
"competitors
distributing preferred local products," 496 U.S. at 48
(emphasis added); and once with "a category of distributors."
496 U.S. at 42 (emphasis added). There is no indication that
the Supreme Court was using the term "competitors" in the
talismanic sense urged by the Department. The Court merely
had in view a category or class counterposed to the class to
which the litigant-taxpayer belonged. Certainly, there is no
indication that, by its use of the term "competitors," the
Court intended to confine the class of litigants receiving
refunds, as the Department proposes, to those that could
actually name certain domestic entities that mirrored them in
corporate structure and operation.
Thus, although we do not necessarily agree with the
rationale of the Court of Civil Appeals, that court's opinion
is not inconsistent with McKesson, and the Court did not err
in reversing the summary judgment for the Department, which
denied a refund solely on the basis of the "mirror-image rule"
as propounded by the Department and applied by the trial
1070386 and 1070399
16
court. To the extent that it did so, the judgment of the
Court of Civil Appeals is affirmed.
III. Conclusion
In conclusion, we reverse the judgment of the Court of
Civil Appeals as to the issue we have addressed in Part II.A
(case no. 1070399). We affirm the judgment as to the issue we
have addressed in Part II.B (case no. 1070386). Thus, we have
confined our consideration to the only two issues actually
addressed by the Court of Civil Appeals. Although the
parties' briefs raise numerous additional arguments, those
arguments involve legal -- as well as factual -- issues
heretofore unaddressed by any court. Chief among those issues
is the amount of franchise taxes Vulcan actually would have
paid in 1999 had it been assessed as a domestic corporation.
See SCB I, 526 U.S. at 169 ("the record ... shows that the
average domestic corporation pays ... one-fifth the franchise
tax
it
would
pay
if
it
were
treated
as
a
foreign
corporation"); McKesson, 496 U.S. at 49 n.33 (where a refund
of taxes collected in violation of the Commerce Clause is
mandated, "the State's obligation under the Due Process Clause
... extends only to refunding the excess taxes collected under
1070386 and 1070399
17
the [discriminatory tax scheme]"). Consistent with our
approach
in
these
franchise-tax
cases
to
proceed
incrementally, see SCB II, 789 So. 2d at 151 (articulating
specific issues to be addressed on remand and contemplating
further briefing and arguments of the parties), we deem it
imprudent to be the first court to address such issues.
Consequently, this case is remanded to the Court of Civil
Appeals for it to remand the case to the trial court for
further proceedings consistent with this opinion.
1070386--AFFIRMED.
1070399--REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Stuart, Smith, Bolin, Parker,
and Murdock, JJ., concur. | September 26, 2008 |
917621eb-3ceb-40b3-ada4-ae92d1eb9492 | Ex parte Jeff Green. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jeff Green v. State of Alabama) | N/A | 1070388 | Alabama | Alabama Supreme Court | Rel: 07-18-08
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
_________________________
1070388
_________________________
Ex parte Jeff Green
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jeff Green
v.
State of Alabama)
(Houston Circuit Court, CC-03-479 and CC-03-1073;
Court of Criminal Appeals, CR-05-1597)
WOODALL, Justice.
Jeff Green sought certiorari review of a judgment of the
Court of Criminal Appeals, which affirmed a judgment of the
Houston
Circuit
Court
denying
Green's
petition
for
1070388
2
postconviction relief pursuant to Rule 32, Ala. R. Crim. P.
Green's Rule 32 petition sought relief from convictions for
the unlawful manufacturing and possession of a controlled
substance
on
the
ground
that
his
trial
counsel
was
ineffective. We reverse and remand.
I. Factual Background
Green's arrest and convictions arose out of a warrant
executed for the search of a residence occupied by Green and
three other individuals. The warrant was issued by a Houston
County district judge upon the affidavit of Officer Thomas
Flathman; Officer Flathman's affidavit stated, in pertinent
part:
"I have probable cause and do believe that
located at ---- Hubbard Rd. Wicksburg Houston County
Alabama, there is now being concealed certain
property
namely
Methamphetamine
and
that
the
following facts tend to establish the facts thereof:
I am Off. Thomas Flathman of the Dothan Police
Department and I have received information from a
confidential
informant
that
Jeff
Green
is
manufacturing and selling methamphetamine inside of
the residence and in the shed beside of the
residence. The confidential informant also stated
that Paula Anderson resides at the residence. ----
Hubbard Road is the address Anderson used on
September 21st 2002 when Off. Elkins arrested her
for a felony narcotics violation. Both Green and
Anderson
have
prior
arrests
for
narcotics
violations. Dothan Swat team snipers have observed
continuous foot traffic between the residence and
1070388
3
the shed. They have also smelled a strong acidic
chemical odor coming from the property that is
consistent with the manufacture of methamphetamine.
"Affiant shows that, based on the above and
foregoing
facts
and
information,
affiant
has
probable cause to believe that the above described
property is concealed upon the aforesaid premises
and is subject to seizure and makes this affidavit
so that a warrant may issue to search the said
premises."
The judge signed the warrant at his residence at 12:08 a.m.
Hours after the warrant was issued, Officer Flathman and
at least three other police officers searched the shed, where
they discovered and seized what has been described as a
"methamphetamine lab." A search of the residence yielded
various smoking devices and a plastic container that tested
positive for methamphetamine residue. Green was indicted for
first-degree manufacturing of methamphetamine in violation of
Ala. Code 1975, § 13A-12-218 ("the manufacturing charge"), and
possession of methamphetamine in violation of Ala. Code 1975,
§ 13A-12-212 ("the possession charge").
At Green's trial, his counsel did not challenge the
sufficiency of the search warrant or its supporting affidavit,
nor did counsel move to suppress the evidence discovered as a
result of the search. Green was convicted on both charges and
1070388
4
was sentenced to 25 years' imprisonment and 5 years'
imprisonment for the manufacturing charge and the possession
charge, respectively, with the sentences to run consecutively.
He appealed. The Court of Criminal Appeals affirmed the
convictions and sentences, and this Court denied Green's
petition for certiorari review.
On September 23, 2005, Green filed in the circuit court
a petition for postconviction relief under Rule 32, Ala. R.
Crim. P. He sought to set aside his convictions on the
ground that, among other things, he was denied the effective
assistance of counsel guaranteed by the Alabama Constitution
and the United States Constitution by his counsel's failure to
challenge the validity of the search warrant and the
admissibility of the evidence seized during its execution.
The circuit court held an evidentiary hearing at which
Officer Flathman testified. At that hearing, the following
colloquy occurred:
"Q.
[By Green's counsel:] Other than what was on
the
four
corners
of
[the
search-warrant
affidavit], did you present to the judge any
other
information?
After
you
obviously
apologized for the lateness of the hour, did
you present any other material facts to him?
"A.
[By Officer Flathman:] I don't recall."
1070388
5
(Emphasis added.)
The circuit court denied Green's Rule 32 petition, and he
appealed. The Court of Criminal Appeals affirmed the denial
in an unpublished memorandum, Green v. State (No. CR-05-1597,
September 21, 2007), ___ So. 2d ___ (Ala. Crim. App.
2007)(table), and Green filed this petition for certiorari
review in this Court. We granted his petition to consider
whether the decision of the Court of Criminal Appeals
conflicts with its prior decisions in Lewis v. State, 589 So.
2d 758 (Ala. Crim. App. 1991), Nelms v. State, 568 So. 2d 384
(Ala. Crim. App. 1990), and Thomas v. State, 353 So. 2d 54
(Ala. Crim. App. 1977), regarding the sufficiency of an
affidavit supporting a search warrant. We hold that it does.
II. Discussion
To obtain postconviction relief on a claim of ineffective
assistance of counsel, a defendant must prove "(1) that
counsel did not provide reasonably effective assistance and
(2) that counsel's deficient performance prejudiced the
petitioner." Ex parte Land, 775 So. 2d 847, 850 (Ala. 2000)
(applying the rule set forth in Strickland v. Washington, 466
U.S. 668 (1984)). Counsel's "performance [is] measured
1070388
The second prong is not at issue in this case; the State
1
does not dispute that, if counsel did not provide reasonably
effective assistance, Green was prejudiced.
6
against an 'objective standard of reasonableness.'" Rompilla
v. Beard, 545 U.S. 374, 380 (2005)(quoting Strickland, 466
U.S. at 688). "[A] determination of the reasonableness of
counsel's actions must be determined on a 'case-by-case'
basis." Emmett v. Kelly, 474 F.3d 154, 167 (4th Cir. 2007).
To
prevail
on
an
ineffective-assistance-of-counsel
claim,
both
prongs of the Strickland test must be met. Altherr v. State,
911 So. 2d 1105, 1107 (Ala. Crim. App. 2004).
1
The Fourth Amendment to the United States Constitution
provides, in pertinent part, that "[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation." Thus, "[a] search
warrant may only be issued upon a showing of probable cause
that evidence or instrumentalities of a crime or contraband
will be found in the place to be searched." United States v.
Gettel, 474 F.3d 1081, 1086 (8th Cir. 2007). Moreover,
"'[s]ufficient evidence must be stated in the affidavit to
1070388
7
support a finding of probable cause for issuing the search
warrant,' and '[t]he affidavit must state specific facts or
circumstances which support a finding of probable cause[;]
otherwise the affidavit is faulty and the warrant may not
issue.'" Ex parte Parker, 858 So. 2d 941, 945 (Ala. 2003)
(quoting Alford v. State, 381 So. 2d 203, 205 (Ala. Crim. App.
1979)).
"A probable cause determination is made after considering
the totality of the circumstances." Gettel, 474 F.3d at 1086.
To pass constitutional muster, "the facts must be sufficient
to justify a conclusion that the property which is the object
of the search is probably on the premises to be searched at
the time the warrant is issued." United States v. Greany,
929 F.2d 523, 524-25 (9th Cir. 1991) (emphasis added). Thus,
"[t]he police will ... encounter problems of 'staleness' of
their information if they delay too long in seeking a search
warrant." United States v. Watson, 423 U.S. 411, 450 n.14
(1976).
Green contends that the warrant authorizing the
search of his residence was not based on probable cause,
because, he argues, Officer Flathman's affidavit, which
provided the basis for the warrant, "failed to establish that
1070388
8
the information being provided [by the affiant] was current
rather than stale or remote." Green's brief, at 10.
According to Green, Flathman's affidavit differs in no
material respect from the supporting affidavits deemed to be
fatally deficient in Nelms, Lewis, and Thomas, supra.
Although the Court of Criminal Appeals found the affidavit
sufficient, we agree with Green.
All three cases cited by Green involved motions to
suppress evidence of controlled substances discovered in the
execution of search warrants supported by affidavits lacking
information sufficient to determine whether the information
provided to, and by, the affiant was current. In Thomas,
heroin was found pursuant to a search warrant executed on
March 14, 1973. Thomas, 353 So. 2d at 55. One of the police
officers who executed the warrant was the affiant, who had
stated, in pertinent part:
"'On February 23rd, 1973, a search warrant was
served at 2624 Tempest Drive, Apartment H, residence
of Marie Haley. A quantity of heroin was seized on
this date. On the afternoon of March 6th, 1973, an
undercover police officer purchased a quantity of
heroin from Eric Rogers at 2624 Tempest Drive,
Apartment H. On March 13th, 1973, I received
information from a reliable informant who has given
me information over a period of the last 30 days
which has led to narcotic cases being made with
1070388
9
trials pending. This informant gave me information
that he had observed heroin being used and sold at
2624
Tempest
Drive,
Apartment
H,
Birmingham,
Alabama.'"
353 So. 2d at 56 (emphasis added). In holding that the
defendant's motion to suppress the heroin found during the
search should have been granted, the Court of Criminal Appeals
stated:
"The affidavit is deficient because it fails to
show
that
the
information
received
from
the
informant was fresh as opposed to being remote. ...
The affidavit stated that the informant 'had
observed' heroin being used and sold from the
premises described. The affidavit does not state
the date or the time the informant allegedly
observed the heroin on the premises. ...
"....
"The fact that heroin was previously seized on
February 23, 1973, at 2624 Tempest Drive, Apartment
H, did not establish probable cause to believe that
heroin was on the premises three weeks later.
"Also, the fact that on March 6, 1973, an
undercover police officer purchased a quantity of
heroin from Eric Rogers on the premises did not
establish probable cause to believe that a week
later such narcotic would be still found thereon.
Seven days is a considerable length of time in which
to remove heroin from the premises or dispose of it
in another fashion. Such makes for a stale
warrant."
353 So. 2d at 56 (emphasis added).
1070388
10
The search warrant challenged in Lewis was based on an
affidavit that stated, in pertinent part: "'[W]ithin the last
seventy-two hours, a reliable, confidential informant advised
this affiant that said informant had been at the above
described residence and observed a quantity of powder
cocaine.'" Lewis, 589 So. 2d at 759 (emphasis added). In
reversing the trial court's denial of the defendant's motion
to suppress evidence of a controlled substance found during
the search, the Court of Criminal Appeals explained that the
affidavit
was
constitutionally
"deficient,
because
it
fail[ed]
to refer to the date when the informant allegedly observed
cocaine at the [defendant's] residence." 589 So. 2d at 759
(emphasis added).
Similarly, in Nelms, a controlled substance was found in
executing a search warrant obtained on the basis of an
affidavit that stated, in pertinent part:
"'And that the facts tending to establish the
foregoing grounds for issuance of a search warrant
are as follows: That within the last seventy-two
hours a confidential police informant, who has
provided information to the affiant in the past that
led to an arrest, stated to the affiant that they
[sic] have seen Crack-Cocaine in the residence of
Tommie Lee Nelms, alias, located at 625 Westview
Drive, Auburn, Lee County, Alabama.'"
1070388
11
Nelms, 568 So. 2d at 385 (emphasis added in Nelms). In
reversing the trial court's denial of the defendant's motion
to suppress evidence of the controlled substance, the Court of
Criminal Appeals stated:
"The
affidavit
in
this
case
is
[constitutionally] deficient because it does not
state when the drugs were seen by the informant at
the [defendant's] residence. The words 'within the
last seventy-two hours' refer to when the informant
told this information to the affiant, not to when
the
informant
observed
the
narcotics
in
the
[defendant's] residence. There is absolutely no
reference to the date or time when the narcotics
were observed by the informant. Thus, the affidavit
was defective and was insufficient to support the
issuance of the search warrant in this case."
568 So. 2d at 386 (emphasis added).
The dispute in this case centers on the following three
statements in Flathman's affidavit: (1) "I have received
information from a confidential informant that Jeff Green is
manufacturing and selling methamphetamine inside of the
residence and in the shed beside of the residence"; (2)
"Dothan Swat team snipers have observed continuous foot
traffic between the residence and the shed"; and (3) "[t]hey
have also smelled a strong acidic chemical odor coming from
the property that is consistent with the manufacture of
methamphetamine." To be sure, the first statement contains a
1070388
12
verb tense that is ostensibly the present tense, i.e., "is
manufacturing and selling." (Emphasis added.) However, any
present-tense aspect of this phrase is qualified by, and
subject to, the introductory clause, "I have received
information" (emphasis added), which indicates an action in
the past.
The Court of Criminal Appeals has explained in regard to
the phrase "had observed" that such statements in affidavits
evidencing past actions are ineffective. This is so, because
the allegedly illegal activity "'could have been any time in
the past.'" Thomas, 353 So. 2d at 56 (quoting Walker v.
State, 49 Ala. App. 741, 743, 275 So. 2d 724, 725-26 (Ala.
Crim. App. 1973)). When "'[t]he informer [does] not tell the
officer-affiant the date or time he allegedly observed the
[activity] on the premises,'" then "'[t]here is nothing in the
affidavit which hints of time except the use of the past tense
in connection with the informant's ... report to the
affiant.'" 353 So. 2d at 56 (quoting Walker, 49 Ala. App. at
743, 275 So. 2d at 726)(emphasis added).
Similarly, nothing in Officer Flathman's affidavit
reveals when the tip from the informant was received or when
1070388
13
the alleged activity was observed. The most that can be
gained from that portion of the affidavit is that -- at some
indefinite time in the past -- an anonymous individual
allegedly learned of a methamphetamine operation involving
Green at the address indicated on the search warrant. Because
Officer Flathman's affidavit contained no chronological
reference
in
which
to
place
the
informant's
alleged
observation of the methamphetamine operation, it afforded no
basis on which to determine whether "the object of the search
[was] probably on the premises to be searched at the time the
warrant [was] issued." Greany, 929 F.2d at 525.
The information supplied to Officer Flathman by the
"Dothan SWAT team snipers" is defective for the same reasons.
The affidavit provides no information as to when the SWAT-team
snipers were deployed. It relates only what the snipers
allegedly "have ... observed" and "have ... smelled" at some
indefinite time in the past. Lacking a relevant time frame,
the statements of the snipers provided no basis on which to
determine whether a methamphetamine operation was ongoing at
the residence at the time the warrant was issued. For these
reasons, the affidavit fails to state facts or circumstances
1070388
14
that would support a finding of probable cause within the
framework of Thomas, Nelms, and Lewis.
Even if an affidavit is facially defective for the
reasons just discussed, its deficiency may be cured by
information an affiant supplied to the issuing authority in
addition to the assertions in the affidavit. However, no such
circumstance is presented in this case, because Officer
Flathman testified at the hearing on Green's Rule 32 petition
that he "[did]n't recall" telling the district judge who
issued the warrant anything "[o]ther than what was on the four
corners of the [search-warrant affidavit]." In that respect,
also, this case is on point with Nelms and Lewis.
Both of those cases involved, as does this case,
allegations
that
the
supporting
affidavits
lacked
a
chronological context by which to assess the timeliness of the
search warrant. Nelms, 568 So. 2d at 386; Lewis, 589 So. 2d
at 759. In both cases, the State attempted to cure the
deficiency of the affidavits with testimony of the affiants
regarding facts they had orally communicated to the judges who
issued the warrants. Nelms, 568 So. 2d at 386-87, Lewis, 589
So. 2d at 759. In both cases, as in this case, the affiants
1070388
15
testified that they could not recall what they had told the
issuing judge as to when the informant had observed the
illegal activity. In both cases, the Court of Criminal
Appeals held, contrary to the holding in its unpublished
memorandum in this case, that such oral testimony is
insufficient to cure the deficiency of a supporting affidavit.
Finally, the State argues that "[e]ven if the affidavit
was [insufficient to establish probable cause], the evidence
was admissible under the 'good-faith exception' to the
exclusionary rule." The State's brief, at 22. Similar
arguments based on materially indistinguishable facts were
made by the State and rejected in Nelms and Lewis.
The Court of Criminal Appeals in Nelms, in particular,
stated:
"[T]he only possible way to justify the admission of
the evidence seized pursuant to the search warrant
in this case would be as a 'good faith' exception to
the exclusionary rule as enunciated in United States
v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d
677 (1984). In Leon, 'the Supreme Court held that
evidence obtained pursuant to a facially-valid
search warrant, later found to be invalid, is
admissible if the executing officers acted in good
faith and in objectively reasonable reliance on the
warrant.' United States v. Hove, 848 F.2d 137, 139
(9th
Cir.
1988).
However,
the
Leon
Court
specifically noted four circumstances when it cannot
be asserted that the officer is acting in 'good
1070388
16
faith' because 'the officer will have no reasonable
grounds for believing that the warrant was properly
issued.' Leon, 468 U.S. at 923, 104 S. Ct. at 3420.
One of these circumstances is when an officer relies
'on a warrant based on an affidavit "so lacking in
indicia of probable cause as to render official
belief in its existence entirely unreasonable."' In
its discussion of this circumstance, the Supreme
Court stated that '"Sufficient information must be
presented to the magistrate to allow that official
to determine probable cause; his action cannot be a
mere ratification of the bare conclusion of
others."' Leon, 468 U.S. at 915, 104 S. Ct. at 3416
(quoting Illinois v. Gates, 462 U.S. 213, 103 S. Ct.
2317, 76 L. Ed. 2d 527 (1983)).
"In Herrington v. State, 287 Ark. 228, 697
S.W.2d 899 (1985), the Arkansas Supreme Court was
faced with a situation similar to the one at bar.
In that case, the court held that the affidavit,
which was the basis for the issuance of a search
warrant, did not contain sufficient information to
support a probable cause determination because it
contained no reference to when the informant had
seen marijuana growing in the defendant's home.
Thus, the court held that the search in that case
could not be justified under the 'good faith'
exception enunciated in Leon.
"....
"The affidavit in this case was 'so lacking in
indicia of probable cause as to render official
belief in its existence entirely unreasonable,'
since there was no reference at all in the affidavit
as to when the informant saw the narcotics at the
appellant's residence. An argument could be made
that the 'good faith' exception should be applicable
in this instance because the affiant knew the time
the informant saw the narcotics in the appellant's
residence at the time he prepared the affidavit and
at the time he executed the search warrant.
1070388
17
"'Leon does not extend, however, to allow
the consideration of facts known only to an
officer and not presented to a magistrate.
The Leon test for good faith reliance is
clearly an objective one and it is based
solely
on
facts
presented
to
the
magistrate. Leon, 468 U.S. at 923, 104 S.
Ct. at 3421. An obviously deficient
affidavit cannot be cured by an officer's
later
testimony
on
his
subjective
intentions
or
knowledge.
"Reviewing
courts
will not defer to a warrant based on an
affidavit that does not 'provide the
magistrate with a substantial basis for
determining the existence of probable
cause.'" Leon, 468 U.S. at 915, 104 S. Ct.
at 3416 (quoting Illinois v. Gates, 462
U.S. 213, 239, 103 S. Ct. 2317, 2332, 76 L.
Ed. 2d 527 (1983)).
"'Leon creates an exception to the
exclusionary rule when officers have acted
in reasonable reliance on the ruling of a
judge or magistrate. The point is that
officers
who present a colorable showing of
probable cause to a judicial officer ought
to be able to rely on that officer's ruling
in executing the warrant. [Citation
omitted.] When the officers have not
presented a colorable showing, and the
warrant and affidavit on their face
preclude
reasonable
reliance,
the
reasoning
of Leon does not apply. To permit the
total deficiency of the warrant and
affidavit to be remedied by subsequent
testimony
concerning
the
subjective
knowledge of the officer who sought the
warrant would, we
believe,
unduly erode the
protections of the fourth amendment.'
"Hove, 848 F.2d at 140.
1070388
18
"Here, the affidavit was deficient on its face
and, although the affiant testified that he and the
judge who issued the warrant talked about the time
when the informant had observed the drugs at the
[defendant's] house, he stated that he could not
remember what he told the judge with regard to this
matter. Thus, we cannot say that the affiant made a
colorable showing of probable cause to the judge.
Therefore, Leon does not apply here and the
[defendant's] motion to suppress should have been
granted."
Nelms, 568 So. 2d at 387-89 (emphasis added).
The application of and rationale for the good-faith
exception are particularly inappropriate where, as here, the
officer is executing a search warrant that depends on his own
affidavit. It is "'disingenuous, after having gone to [a
district judge] with the paltry showing seen here, to suggest,
as the [State] suggests, that at bottom it was the [district
judge] who made the error and the search and seizure are
insulated because the officer's reliance on that error was
objectively reasonable.'" Ball v. State, 868 So. 2d 474, 475
(Ala. Crim. App. 2003) (Cobb, J., dissenting) (quoting United
States v. Zimmerman, 277 F.3d 426, 438 (3d Cir. 2002)).
The State does not discuss -- or even acknowledge --
Thomas, Nelms, or Lewis. Instead, it relies on Harrelson v.
State, 897 So. 2d 1237 (Ala. Crim. App. 2004). The State's
1070388
19
reliance on Harrelson, however, is misplaced. In Harrelson,
the search-warrant affidavit stated, in pertinent part, that
"'[o]n August 9, 2002, information was received from a
confidential informant indicating that Mr. Harrelson was
responsible for [certain described] tire thefts,'" and that
Harrelson "'had "tens of thousands of dollars worth" of [said
stolen] property at his residence,'" 897 So. 2d at 1238
(emphasis added). The warrant was issued that same day. 897
So. 2d at 1239.
The Harrelson affidavit is distinguishable in that,
unlike the affidavit in this case, the date of the informant's
information was manifest. In other words, it was fairly
inferable from the face of the affidavit that the stolen
property was at Harrelson's residence on August 9, 2002 -- the
benchmark date of the informant's tip. Indeed, the Court of
Criminal Appeals so concluded:
"In this case, the affidavit provides that the
informant said that Harrelson, at the time of the
execution of the affidavit, had stolen goods stored
in a building on his property, that is, the presence
of the stolen goods was ongoing at the time of the
execution of the affidavit."
1070388
20
Harrelson, 897 So. 2d at 1239-40. Officer Flathman's
affidavit, on the other hand, contains no comparable
benchmark.
In short, the affidavit is facially defective within the
framework of Thomas, Nelms, and Lewis, and, moreover, is "so
lacking indicia of probable cause" that it does not satisfy
the good-faith exception discussed in Nelms and Lewis. The
affiant's testimony reveals nothing about when any of the
relevant activities took place, thus "render[ing] official
belief in [the existence of probable cause] entirely
unreasonable." Nelms, 568 So. 2d at 388.
III. Conclusion
Given the glaringly defective affidavit, reasonably
effective counsel would have challenged the search warrant and
the admission of evidence obtained as a result of its
execution. In failing to do so, Green's trial counsel did not
provide reasonably effective assistance. For these reasons,
the judgment of the Court of Criminal Appeals is reversed, and
the cause is remanded to that court for the entry of an
appropriate order.
1070388
21
REVERSED AND REMANDED.
See, Lyons, Stuart, and Parker, JJ., concur.
Smith, J., concurs specially.
Bolin and Murdock, JJ., dissent.
Cobb, C.J., recuses herself.
1070388
22
SMITH, Justice (concurring specially).
I concur with the main opinion. I write only to note
that at the time a search warrant is challenged, the affiant,
or additional witnesses produced by the affiant, may not
recall the details of critical supplemental testimony that was
provided to the judge or magistrate when the warrant was
issued. Thus, in order to preserve this supplemental
testimony, Rule 3.9(a), Ala. R. Crim. P., provides that
"[s]uch additional sworn examination shall be recorded
verbatim by a court reporter, by recording equipment, or by
other means ...."
1070388
See Lewis, 589 So. 2d at 759 (finding deficient an
2
affidavit that stated merely that the informant advised the
affiant that "'said informant had been at the above-described
residence and observed a quantity of powder cocaine'"
(emphasis added)); Nelms, 568 So. 2d at 385 (rejecting an
affidavit that stated merely that the informant "'stated to
the affiant that they [sic] have seen Crack-Cocaine in the
residence of'" the defendant (some emphasis omitted)); Thomas,
353 So. 2d at 56 (finding that the affidavit "fail[ed] to
show that the information received from the informant was
fresh as opposed to being remote" where the affidavit stated
merely that the informant "'had observed heroin being used and
sold'" at the defendant's address (emphasis added)).
23
MURDOCK, Justice (dissenting).
For the reasons discussed below, I respectfully dissent.
I find the cases of Lewis v. State, 589 So. 2d 758 (Ala.
Crim. App. 1991), Nelms v. State, 568 So. 2d 384 (Ala. Crim.
App. 1990), and Thomas v. State, 353 So. 2d 54 (Ala. Crim.
App. 1977), to be distinguishable from the present case. The
problematic, past-tense verb usage in each of these cases was
part of the informant's statement and was in reference to the
occurrence at some unknown time in the past of the illegal
activity itself or the informant's observation of that
activity. In contrast, in the present case the "past tense"
2
reference is found only in the affiant's statement that "I
have received" certain information from the informant. If
this makes the affidavit deficient, then very few affidavits
1070388
24
will be able to pass constitutional muster. Obviously, any
time an affidavit describes information from an informant, it
is of necessity information the affiant has received before
signing the affidavit.
The real question is what is the information the affiant
has received from the informant. According to the affidavit
in this case, it is that, at the time the affidavit is signed,
the defendant "is manufacturing and selling methamphetamine."
The main opinion disagrees with this understanding of the
affidavit. It asserts that the present tense of the phrase
"is manufacturing and selling" is qualified by the reference
to prior activity in the clause "I have received information."
I believe the converse is true. Moreover, the issuing court
reasonably could have understood the converse to be true. By
stating that "I have received information from a confidential
informant that Jeff Green is manufacturing and selling
methamphetamines inside of the residence and in the [adjacent]
shed," the affidavit impliedly and necessarily states that the
affiant has received information from the informant that
speaks to the current state of affairs. Compare Harrelson v.
State, 897 So. 2d 1237, 1239 (Ala. Crim. App. 2004) (finding
1070388
The Harrelson court further explained:
3
"In this case, the affidavit provides that the
informant said that Harrelson, at the time of the
execution of the affidavit, had stolen goods stored
in a building on his property, that is, the presence
of the stolen goods was ongoing at the time of the
execution
of
the
affidavit.
As
opposed
to
absolutely no reference to the date or time, as was
the problem in Nelms and Lewis, the affidavit in
this case contained not only a general time frame,
but also it provided that at the moment of the
execution
of
the
affidavit
Harrelson
was
in
possession of the stolen goods."
897 So. 2d at 1239-40. The Harrelson court also stated:
"Finally, the plain meaning of the statement in the
affidavit that reads, 'The informant stated that Mr.
Harrelson
had
air-conditioning
units,
ladders,
tools, and other property at his residence that were
thought to be stolen from Auburn University,'
indicates that, as of the date of the affidavit, the
stolen goods were at that point in time on
Harrelson's property."
897 So. 2d at 1242 (emphasis added).
25
that affiant's statement that "[i]nformation was also received
from the informant indicating that the suspect stored some of
the stolen property in an open-faced barn structure located
approximately 1/4 mile east of the suspect's residence,"
speaks to the current state of affairs at the time of the
execution of the affidavit).3
1070388
26
In Illinois v. Gates, 462 U.S. 213 (1983), the United
States Supreme Court stated:
"'[T]he term "probable cause," according to its
usual acceptation, means less than evidence which
would justify condemnation.... It imports a seizure
made under circumstances which warrant suspicion.'
[Locke v. United States, 7 Cranch. 339, 348 (1813)].
...
"We also have recognized that affidavits 'are
normally drafted by nonlawyers in the midst and
haste of a criminal investigation. ...' [United
States v.] Ventresca, 380 U.S. 102, 108 [(1965)].
... The rigorous inquiry into the Spinelli [v.
United States, 393 U.S. 410 (1969),] prongs and the
complex superstructure of evidentiary and analytical
rules that some have seen implicit in our Spinelli
decision, cannot be reconciled with the fact that
many warrants are -- quite properly ... -- issued on
the basis of nontechnical, common-sense judgments of
laymen applying a standard less demanding than those
used in more formal legal proceedings. ...
"Similarly,
we
have
repeatedly
said
that
after-the-fact scrutiny by courts of the sufficiency
of an affidavit should not take the form of de novo
review. A magistrate's 'determination of probable
cause should be paid great deference by reviewing
courts.' Spinelli, supra, 393 U.S., at 419."
462 U.S. at 235-36.
"The task of the issuing magistrate is simply to
make a practical, common-sense decision whether,
given all the circumstances set forth in the
affidavit before him, including the 'veracity' and
'basis of knowledge' of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in
a particular place. And the duty of a reviewing
1070388
27
court is simply to ensure that the magistrate had a
'substantial
basis for ... conclud[ing]' that
probable cause existed."
Gates, 462 U.S. at 238-39 (emphasis added). As I read it, and
considering it in its entirety, the affidavit at issue here
gave the issuing court "substantial basis for ... concluding
that probable cause existed." As an appellate court, this
Court should defer to an issuing court's "common-sense"
understanding of the wording of the affidavit presented to it.
Alternatively, even if the affidavit in this case did not
provide a reasonable basis for the issuing court to conclude
that it had probable cause to believe that the manufacture and
sale of methamphetamine was ongoing at the time the affidavit
was executed, I agree with the Court of Criminal Appeals that
the evidence obtained pursuant to the resulting warrant should
have been admissible under the "good-faith exception" to the
exclusionary rule. Specifically, I cannot conclude that the
affidavit is "so lacking [in] indicia of probable cause as to
render
official
belief
in
its
existence
entirely
unreasonable." Straughn v. State, 876 So. 2d 492, 500 (Ala.
Crim. App. 2003)(citing United States v. Leon, 468 U.S. 897,
921 (1984)).
1070388
28
Finally, I note that Lewis v. State, Nelms v. State, and
Thomas v. State all were appeals of convictions in which the
question of the adequacy of the affidavit and resulting
warrant was directly at issue. In the present case, we are
not confronted with the direct question whether the affidavit
and warrant pass constitutional muster; rather, the question
is whether counsel's representation of the defendant was
reasonable. Effective representation does not entitle a
defendant to error-free representation. Saffold v. State, 570
So. 2d 727, 731 (Ala. Crim. App. 1990). "In any case
presenting an ineffectiveness claim, the performance inquiry
must
be
whether
counsel's
assistance
was
reasonable
considering all the circumstances." Strickland v. Washington,
466 U.S. 668, 688 (1984) (emphasis added). At a bare minimum,
I cannot conclude, in light of what are at least substantial
questions as discussed above, that counsel's representation of
Green fell below constitutional standards because counsel
failed to object to the validity of the warrant in the present
case. See generally Strickland, 466 U.S. at 689 ("Judicial
scrutiny of counsel's performance must be highly deferential.
... A fair assessment of attorney performance requires that
1070388
For the reasons discussed above, I also am not persuaded
4
that counsel's conduct necessarily resulted in any prejudice
to the defendant so as to meet the second prong of the
Strickland test.
29
every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time.").4
Bolin, J., concurs. | July 18, 2008 |
0420fc5d-f1e5-42b3-b442-7d3c6e708736 | Ex parte Daniel S. Wolter and Dana K. Wolter. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Dan Weinrib, in his official capacity as Jefferson County Tax Assessor v. Daniel S. Wolter and Dana K. Wolter) (Jefferson Circuit Court: CV-06-6647; Civil Appeals : 2060932). Writ Denied. No Opinion. | N/A | 1070753 | Alabama | Alabama Supreme Court | REL: 07/25/2008
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
____________________
1070753
____________________
Ex parte Daniel S. Wolter and Dana K. Wolter
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Dan Weinrib, in his official capacity as Jefferson
County Tax Assessor
v.
Daniel S. Wolter and Dana K. Wolter)
(Jefferson Circuit Court, CV-06-6647;
Court of Civil Appeals, 2060932)
STUART, Justice.
WRIT DENIED. NO OPINION.
1070753
2
Cobb, C.J., and See, Lyons, Woodall, Bolin, and Parker,
JJ., concur.
Murdock, J., dissents.
1070753
3
MURDOCK, Justice (dissenting).
I believe that the trial court correctly decided this
case; that in reversing the trial court's judgment the Court
of Civil Appeals misinterpreted Art. IV, § 217(a), Ala. Const.
1901 (Official Recomp.) (formerly Amendment No. 373), and
§§ 40-8-1(a) and (b)(6), Ala. Code 1975; that the petition
before us states valid grounds for certiorari review; and that
we should grant that review. I therefore am compelled to
dissent from the decision of the majority of this Court to
deny certiorari review in this case.
Before October 1, 2005, Daniel S. Wolter and Dana K.
Wolter, husband and wife ("the Wolters"), purchased a
residence in Jefferson County, Alabama, in an area zoned
solely for single-family dwellings. When their builder
determined that they could not construct an addition to the
house, the Wolters decided to remove the house from their lot
and construct a new home for their use on the same site. At
all times relevant to these proceedings, the Wolters intended
to use their property, including the newly constructed home,
as their family's personal residence. Following the trial
court's entry of a summary judgment in the Wolters' favor,
1070753
4
their new home was completed and, consistent with their stated
intentions from the outset, the Wolters and their children
moved into their new home and occupied it as their personal
residence.
On October 1, 2005, during the construction of the
Wolters' new home and before it was completed, the Jefferson
County Board of Equalization appraised the new residence. The
Wolters appealed the appraisal and were awarded relief by the
Board of Equalization. During the appraisal-appeal process,
notices from the Board of Equalization to the Wolters never
discussed or mentioned the taxation classification of the
property.
In October 2006, while their new home was still under
construction, the Wolters received a notice indicating that
the tax-assessment classification for their property had been
changed from Class III to Class II. This meant that their
property would be subject to ad valorem taxation based on an
assessment rate of 20% of fair market value rather than 10%.
Section 217(a), Ala. Const. 1901 (Official Recomp.),
defines "Class III" property, in part, as "single-family
owner-occupied residential property." Sections 40-8-1(a) and
1070753
5
(b)(6), Ala. Code 1975, implement § 217(a). Section 40-8-1(a)
defines "Class III" property as "[a]ll agricultural, forest
and residential property, and historic buildings and sites,"
and specifies a ratio of assessed value to fair market value
for such property of 10%. Section 40-8-1(b)(6) defines
"residential property" as "real property, used by the owner
thereof exclusively as the owner's single-family dwelling."
Section 40-8-1(a) also defines "Class II" property as
"[a]ll property not otherwise classified," and prescribes a
ratio of assessed value to fair market value for such property
of 20%. Class II is a designation used primarily for income-
producing property, i.e., rental property.
The Wolters filed an appeal of the assessment of their
property to the Jefferson Circuit Court, seeking an order
requiring the county to return their property to a Class III
designation. The parties filed cross-motions for summary
judgment. The defendants -- the tax assessor and the
Jefferson County Board of Equalization -- contended that,
because the Wolters were not actually occupying their house on
October 1, 2005, the property must be classified as "Class II"
and, further, that the Wolters were not entitled to the
1070753
The facts as presented in the petition and in the Court
1
of Civil Appeals' opinion contain no suggestion that the
Wolters were attempting to "game" the system in any manner.
For example, there is no indication that the Wolters, at the
time they were constructing their residence, were claiming a
Class
III
assessment
on
any
other
house
they
were
constructing. Nor was the decision of the Court of Civil
Appeals against the Wolters premised upon such a notion.
6
"homestead" exemption provided for Class III property. The
Wolters contended that their new house was being constructed
for the use of their family as a single-family residence and
that this was the only use for which their property was zoned.
They argued that they are entitled to a Class III designation,
that the house was their "homestead," and that the property
should be assessed at 10% of fair market value.1
The trial court entered a summary judgment in favor of
the Wolters, stating, in part, as follows:
"The legal issue upon which this case turns is
whether the taxpayers' single family residence was
within the statutory definition of 'residential
property.' The court has concluded as a matter of
law that it was 'residential property' and is
entitled to be included in the Class III category.
"The property should be assessed at the rate of
other private residences. The property had no other
use than that of a single-family, owner-occupied
dwelling house. It is undisputed that there was
never an intent to use the property for anything
1070753
The trial court continued by agreeing with the Wolters'
2
argument that the literal interpretation of the taxation
provision applied by the defendants would have the result of
requiring a homeowner to camp out in a sleeping bag in an
unfinished house on any October 1 in order to avoid the higher
tax classification.
7
other than a private, owner occupied house. The
zoning allows no other use."2
Dan Weinrib, in his official capacity as tax assessor for
Jefferson County, appealed. Citing Ex parte Waddail, 827 So.
2d 789, 794 (Ala. 2001), for the general proposition that
"'"'[w]ords used in a statute must be given their natural,
plain, ordinary, and commonly understood meaning,'"'" the
Court of Civil Appeals reversed the judgment of the trial
court. Weinrib v. Wolter, [Ms. 2060932, February 15, 2008]
___ So. 2d ___, ___ (Ala. Civ. App. 2008). That court
reasoned as follows:
"'Residential property' is defined in Ala. Code
1975, § 40-8-1(b)(6), as '[o]nly real property, used
by the owner thereof exclusively as the owner's
single-family
dwelling.'
(Emphasis
added.)
Furthermore, the definition of Class III property in
Art. IV, § 217(a), includes 'single-family owner-
occupied residential property.' (Emphasis added.)
In construing either § 40-8-1 or Art. IV, § 217(a),
there is little room for interpretation as to what
type of property is included in Class III property.
We conclude that § 40-8-1 and Art. IV, § 217(a), are
unambiguous as written and require that residential
property, in order to be classified as Class III
1070753
8
property, must be being used by the owners as their
dwelling at the time taxes are assessed.
"In
the
present
case,
because
the
Wolters'
house
was still under construction and was not occupied by
or being used by the Wolters as a single-family
dwelling on the applicable assessment date –-
October 1, 2006 –- the property was properly
classified as Class II property according to § 40-8-
1 and Art. IV, § 217(a)."
___ So. 2d at ___ (emphasis added).
In their petition, the Wolters assert valid grounds for
certiorari review, including the fact that the interpretation
of
the
above-referenced
constitutional
and
statutory
provisions is an issue of first impression and that the
decision of the Court of Civil Appeals is in conflict with a
prior decision of the Supreme Court, Blum v. Carter, 63 Ala.
235 (1879). They also argue that the decision of the Court of
Civil Appeals is contrary to the oft-recognized principle
that, when the proper interpretation of a taxing statute is in
doubt, a court must adopt "the interpretation most favorable
to the taxpayer." Alabama Farm Bureau Mut. Cas. Ins. Co. v.
City of Hartselle, 460 So. 2d 1219, 1223 (Ala. 1984); see also
State v. Tenaska Alabama Partners, L.P., 847 So. 2d 962, 966
(Ala.
Civ.
App.
2002)(requiring
tax
statutes
to
be
1070753
9
"construe[d] ... strictly in favor of the taxpayer and against
the taxing authority").
The Wolters put it well in their petition: "To opine
[that the] statutes are clear in their application to these
circumstances, as the Court of Civil Appeals does, is
imprudent." Petition, p. 8 (emphasis added). Their argument
continues:
"The Court of Civil Appeals' decision ignores the
nature, the clear intent and the purpose of these
statutes regarding the taxation of residential
property. 'The policy of this section, regarding
the taxation of the residential property is plain --
the state intended to tax owners of single-family
residences at a lower rate than owners of other
residential property, because residential property
which is not used as a single family residence
generally is used as income producing property.'
Howell v. Malone, 388 So. 2d 908 (Ala. 1980). The
Court
of
Civil
Appeals,
via
its
'strict
construction' of the statute's language, has yielded
an unintended result at the expense of the taxpaying
public."
Petition, pp. 8-9.
The Wolters' argument, at the very least, has the
"probability of merit" contemplated by Rule 39(f), Ala. R.
App. P. A married couple purchases a home for use by them and
their children. That home and the lot upon which it is
situated are zoned for use as a single-family dwelling only
1070753
According to the trial court's judgment, the zoning
3
allowed for no use other than occupancy by the owner, although
my vote to grant certiorari review in this case is not
dependent upon that fact.
10
and can be put to no other use. Upon learning from their
3
builder that their plans to expand their newly purchased home
are not feasible, they decide to remove the existing house
from the property and to replace it with a newly constructed
one. They set about the task of doing so. Under such
circumstances, I do not see how it fairly can be said that the
property is not devoted to use as the site of a "single-
family, owner-occupied" dwelling.
The Court of Civil Appeals appears to have been hamstrung
by the term "owner-occupied" in § 217 of the Alabama
Constitution. I would first note, however, that the quoted
term is used as an adjective in § 217, not a verb clause. As
such, it modifies, or describes, the type of property eligible
to receive a Class III assessment. Section 217 does not
unambiguously, as the Court of Civil Appeals reasoned, require
an owner to be engaged in the physical act of occupying his or
her property on October 1 in order for that property to be the
type of property contemplated by § 217 to fall within the
Class III designation. Properly understood, the import of
1070753
11
§ 217 is simply to treat as Class III property that property
which is devoted to use as the residence of its owner.
This understanding of § 217 is in accord with the
legislature's understanding of Class III property as expressed
in § 40-8-1. That statute defines "residential property"
merely as real property "used by the owner thereof exclusively
as the owner's single-family dwelling." That was the use to
which the property in question was being put. It was in the
construction phase of that use, but that was the use to which
it was being put.
To interpret the constitutional and statutory provisions
in a manner urged by the defendants and adopted by the Court
of Civil Appeals -- focusing on the fact that the property was
not occupied by the Wolters on the assessment date -- is, in
my view, an overly technical approach. It is an approach that
does not comport with the intent of either those who framed or
those who ratified our constitution, or with the intent of the
legislature in adopting § 40-8-1. It is an impractical
approach and one that does not accommodate the logistical
realities of purchasing, renovating, and reconstructing
1070753
Indeed, based on the position asserted by the defendants
4
in the trial court, apparently any residential homeowner who
moves out of his or her residence for even a few days to allow
new flooring to be installed would not be entitled to have the
house assessed as Class III property for that small portion of
the year during which the homeowner is not occupying the
house.
12
existing residential properties. As far as I can see, it is
an approach that would yield results such as the following:
1.
A residential property that has been taxed for years (as
presumably this one has) as a single-family dwelling
would have its taxation classification temporarily
changed from Class III to Class II during any period in
which any renovation or construction requires the owners
(whether preexisting owners or new purchasers) to
temporarily move out of the house, only to have the
classification revert to the Class III, residential,
classification on the day the renovation or construction
is sufficiently complete and at least one of the owners
begins spending the night in the dwelling again. This
would be true even if the owners were to move out of a
preexisting home on the property for only a month or two
while some renovation work was performed.4
1070753
13
2.
A family whose renovation work is performed and completed
either before or after October 1 would avoid any change
in the assessment of its property. A family whose
renovation work overlaps any October 1 would not be so
fortunate.
3.
A family whose home construction is completed and who is
able to resume sleeping on its residential property on
September
30
of
a
given
year
would
be
treated
differently than a family whose construction work lasted
only a day or two longer and who, consequently, is unable
to resume sleeping on its property until October 2.
Similar impractical results were rejected by the Supreme
Court in Blum v. Carter, supra, with which the Wolters contend
the Court of Civil Appeals' opinion is in conflict. In a case
involving the issue of homestead, this Court considered a
phrase virtually identical to the one at issue here, namely
"owned and occupied." The Court also considered what it meant
for a parcel of land to be "used" as a single-family dwelling
by its owner. Moreover, it did so in a case in which, as
here, owner-occupancy was an "essential condition." The
conclusion reached in the present case by the Court of Civil
1070753
14
Appeals -- that the meanings of § 217, Ala. Const. 1901, and
§ 40-8-1, Ala. Code 1975, begin and end with what the Court of
Civil
Appeals
concludes
is
"plain
language"
that
"unambiguously" excludes a single-family residence under
construction or renovation from being assessed as Class III
property -- is a conclusion that conflicts with this Court's
holding in Carter. That holding is that it is the type of use
to which a property is devoted that matters:
"Occupancy is an indispensable element in every
valid claim of homestead. Title and possession may
both be complete in law -- such possession as will
maintain trespass quare clausum fregit; and yet, if
the premises be not actually occupied -- a pedis
possessio, as the law phrases it -- the claim is not
good under the constitution of 1868. Owned and
occupied are essential conditions. McConnaughy v.
Baxter, 55 Ala. 379 [(1876)]. 'Unless devoted to use
and
occupancy
as
a
home,
a
dwelling
place,
protection is not extended to it. It is because of
its use and occupancy as a home -- to secure and
preserve it as such -- that exemption from sale
under judicial process is granted.' Ib.; Dexter v.
Strobach, 56 Ala. 233 [(1876)]."
63 Ala. at 237-38 (emphasis added). Moreover, the Court
continued as follows:
"A question is raised in this case, whether an
intention to occupy, and preparation therefor, are
the equivalent of actual occupancy. In cases of
change of homestead from one place to another, or of
purchase of a place for a homestead, some interval
1070753
15
of time must elapse before there can be an actual
occupancy of the new homestead. ...
"The case of Neal v. Coe, 35 Iowa 407 [(1872)],
presented the case of a change of residence of the
debtor; and, consequently, the inquiry whether an
intention to occupy was equivalent to occupancy, and
how that intention should be manifested. The
defendant had removed and placed part of his
furniture in the newly purchased residence, and the
residue had been removed from the old homestead; and
it, together with himself and family, were only
awaiting necessary repairs that were being made,
preparatory to taking possession of the newly
acquired house as a residence. They had left the
former home, and were boarding temporarily near the
newly purchased premise. The court said: 'While the
intention is not alone sufficient to impress the
homestead character, yet it may be considered in
connection with the circumstances. Some time
usually intervenes after the purchase of property
before it can be actually occupied. Even after the
process of moving begins, it frequently takes days
before the furniture can be arranged, and the house
placed in comfortable position for actual occupancy.
Under such circumstances, great inconvenience might
arise, if the homestead character was made to depend
upon the actual, personal presence of the members of
the family. Law is entitled to, and can command
respect, only when it is reasonable, and adapted to
the ordinary conduct of human affairs. In this
case, the house in question was used by defendants
for holding a portion of their furniture on the 15th
of March. On the 1st of April, the family came,
expecting to possess it; but the repairs not being
completed, they did not actually sleep and eat in
it, until twelve weeks thereafter. In the meantime,
the repairs were progressing, and the furniture was
unpacked and left there as it arrived. The plaintiff
had knowledge of this possession, and of the
intention of defendants to fully occupy the premises
as a home, as soon as they were made fit. Under
1070753
16
these circumstances, it seems to us the court did
not err in holding it exempt from liability for
plaintiff's judgment.' [35 Iowa at ___ (discussing
Williams v. Swetland, 10 Iowa 51 (1859)).]"
Carter, 63 Ala. at 238-39 (emphasis added).
The Court concluded in Carter as follows:
"[W]e hold that, to constitute a valid claim of
homestead, there must be an occupancy in fact, or a
clearly defined intention of present residence and
actual
occupation,
delayed
only
by
the
time
necessary to effect removal, or to complete needed
repairs,
or
a
dwelling-house
in
process
of
construction."
63 Ala. at 240 (emphasis added). The condition described is
exactly the condition present here -- a dwelling-house in the
process of construction. The Carter Court also concluded:
"An undefined, floating intention to build or occupy
at some future time, is not enough. And this
intention must not be a secret, uncommunicated
purpose. It must be shown by acts of preparation of
visible character, or by something equivalent to
this."
63 Ala. at 240. The Wolters did not have a "secret,
uncommunicated purpose"; they did have "acts of preparation"
of as "visible [a] character" as one could possibly have.
Because the Wolters have presented to this Court valid
grounds for certiorari review in the form of an issue of first
impression as to the meaning of provisions in § 217, Ala.
1070753
17
Const. 1901, and § 40-8-1, Ala. Code 1975, and in the form of
a conflict between the decision of the Court of Civil Appeals
and the principles recognized in Carter and Alabama Farm
Bureau Mutual Casualty Insurance Co. v. City of Hartselle, I
respectfully dissent. | July 25, 2008 |
562e3d61-6826-4a3e-821d-affc39ccc59f | Ex parte Burr & Forman, LLP. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: A. Dwight Blair et al. v. Burr & Forman, LLP) | N/A | 1060801 | 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
____________________
1060801
____________________
Ex parte Burr & Forman, LLP
PETITION FOR WRIT OF MANDAMUS
(In re: A. Dwight Blair et al.
v.
Burr & Forman, LLP)
(St. Clair Circuit Court, CV-03-321)
MURDOCK, Justice.
Burr & Forman, LLP, petitions this Court for a writ of
mandamus ordering the St. Clair Circuit Court to dismiss the
1060801
2
underlying action or, in the alternative, to transfer it to
the Jefferson Circuit Court. For the reasons stated herein,
we grant the petition.
I. Background
This mandamus petition arises from an action filed in the
St. Clair Circuit Court by A. Dwight Blair, William Trussell,
and their law firms, respectively, Blair and Parsons, P.C.,
and Trussell & Funderburg, P.C. (collectively referred to
herein as "Blair and Trussell"), against the law firm of Burr
& Forman, LLP. In their action, Blair and Trussell alleged
that Burr & Forman violated an agreement into which the
parties had entered in 1994 ("the 1994 agreement") whereby
they associated one another and agreed to share attorney fees
in certain cases relating to the alleged release of
contaminants
into
the
environment
by
Monsanto Company
("Monsanto").
At the time the parties entered into the 1994 agreement,
which was memorialized in a letter from Blair to Frank Davis
(a partner at Burr & Forman at the time), there were two
pending lawsuits related to alleged discharges by Monsanto in
which the parties were serving as counsel, Dyer v. Monsanto
1060801
3
Corp. and Shelter Cove Management v. Monsanto Corp. Blair's
letter stated:
"The purpose of this letter is to confirm our
agreement to associate each other in the [Dyer and
Shelter Cove] actions and in all other claims which
each firm may pursue or handle arising out of the
actions
of
Monsanto
and
all
other
parties
responsible for the placing of PCBs [polychlorinated
biphenyls] and other contaminants in the waterways
of Snow Creek, Choccolocco Creek and Lake Logan
Martin.
"1.
Fees and Expenses
"Any attorneys fees obtained in either of the
above actions or in any other claims or lawsuits
which may be pursued by either firm (including but
not limited to claims for business loss and/or
personal injury arising out of Monsanto's or others'
conduct in placing PCBs and other contaminants in
Snow Creek, Choccolocco Creek and Lake Logan Martin,
whether such claims are asserted in a class action
or are asserted on an individual basis) will be
divided as follows: 60% to Burr & Forman, 20% to my
firm and 20% to Trussell & Funderburg. Expenses
will be paid on a similar basis: Burr & Forman will
pay 60% of expenses, my firm will pay 20% of
expenses and Trussell & Funderburg will pay 20% of
expenses; however, neither my firm nor Bill's firm
will be required to pay more than $20,000 (each) of
the expenses. Frank will furnish Bill and me an
itemized list of expenses before we are called upon
to pay our share and any anticipated expense of more
than $1,000.00 will be discussed by Frank and Bill
and me and will be agreed to by Bill and me prior to
the incurring of such expense (e.g., the hiring of
experts).
"2.
Procedural Matters
1060801
4
"Before the certification hearing, I will file
a conditional motion to dismiss, without prejudice,
all of the parties in the Shelter Cove action,
except Harris, and will dismiss, without prejudice,
all claims for business loss. This motion will be
conditioned upon the Court's certifying The Class of
property owners whose property has been devalued and
whose riparian rights have been adversely affected
by the wrongful conduct of Monsanto, etc. You would
then file an appearance for Harris.
"Before the certification hearing, Frank and
Bill will file a conditional motion to dismiss,
without prejudice, all of the parties in the Dyer
action, except those three, four or five who you
decide will remain as Class representatives, and
except those parties presently named who have
personal injury or loss of income claims. I will
then
file
an
appearance
for
those
Class
representatives, as well as the remaining parties
who have personal injury or loss of income claims.
"The three of us will file a joint motion to
consolidate the two cases for all purposes.
"If this does not represent your understanding
of the agreement, please let me know immediately."
The Dyer and Shelter Cove actions were settled in June 1999.
In May 2001, attorney Richard Roden and Burr & Forman,
acting as cocounsel, sued Monsanto in the United States
District Court for the Northern District of Alabama on behalf
of 3,000 plaintiffs based on personal injuries and property
damage allegedly caused by Monsanto's release of contaminants
into certain waterways ("the Tolbert litigation"). Blair and
1060801
5
Trussell were not associated as counsel in that action. In
January 2003, Davis and John Norris, another partner at Burr
& Forman, left Burr & Forman and formed the law firm of Davis
and Norris LLP (Davis, Norris, and their law firm are
collectively referred to hereinafter as "Davis and Norris").
Davis and Norris were retained to represent the same clients
in the Tolbert litigation they had been representing while
they were partners at Burr & Forman.
The Tolbert litigation ended in September 2003 with a
settlement agreement between the parties that was incorporated
into a final judgment by the federal district court. The
settlement proceeds and attorney fees generated by the Tolbert
litigation were placed in a settlement fund under the
supervision of the federal district court.
On October 17, 2003, Davis and Norris filed a complaint
in the Jefferson Circuit Court against Burr & Forman and Blair
and Trussell ("the Jefferson County action"), seeking a
judgment declaring the appropriate distribution of the
attorney fees generated by the Tolbert litigation. Through
their complaint, they sought "a declaration as to whether
Blair, Trussell or their respective law firms have any right
1060801
6
or entitlement to part of the fees paid for representation of
the clients in Tolbert." They also sought
"a declaration of the rights of Davis, Norris and
their new law firm, known as Davis and Norris LLP,
regarding representation of clients in contingent
fee matters that began while they were partners at
Burr [& Forman], but whom they continued to
represent after their withdrawal from Burr [&
Forman], including but not limited to, the work they
performed in Tolbert."
On October 30, 2003, Blair and Trussell filed a complaint
against Burr & Forman in the St. Clair Circuit Court ("the St.
Clair County action"). In count one of their complaint in the
St. Clair County action, they sought "a declaratory judgment
that they are entitled to a total of forty percent (40%) of
any attorneys' fee awarded to the defendant, based upon the
1994 Agreement," an injunction giving effect to the requested
declaration, and an injunction prohibiting Burr & Forman "from
spending or disbursing any attorneys' fees awarded in the
Tolbert matter" until the St. Clair County action was
concluded. In count two, they sought damages for breach of
the 1994 agreement.
On November 4, 2003, Blair and Trussell filed in the
Jefferson County action a motion to sever the claims against
them and then to dismiss those claims or, in the alternative,
1060801
7
to transfer a portion of that action to St. Clair County.
They argued that the interpretation of the 1994 agreement,
which was between them and Burr & Forman, had nothing to do
with the dispute between Burr & Forman and Davis and Norris.
They asserted that Davis and Norris's dispute with Burr &
Forman was pending in the federal court in the Tolbert
litigation before the Jefferson County action was filed, and,
in that dispute, there was no mention of the 1994 agreement.
The absence in the federal dispute of any issue regarding the
1994 agreement was further proof, according to Blair and
Trussell, that the claims in the Jefferson County action
related to the 1994 agreement were due to be severed from that
action. Blair and Trussell argued that, upon severance, the
claims related to the 1994 agreement should be transferred to
St. Clair County, where Blair and Trussell resided and where,
they contended, the "events leading to the 1994 agreement"
occurred. The Jefferson Circuit Court denied Blair and
Trussell's motion.
On November 25, 2003, Burr & Forman removed the St. Clair
County action and the Jefferson County action to the United
States District Court for the Northern District of Alabama.
1060801
8
The federal district court consolidated those actions with the
Tolbert litigation on the ground that they presented issues
pending before the court in Tolbert. On December 11, 2003,
Burr & Forman filed an answer in the St. Clair County action
in the federal court. On July 7, 2004, the federal district
court remanded the St. Clair County action and the Jefferson
County action.
On July 20, 2004, Burr & Forman filed its first amended
answer, counterclaim, and cross-claim in the Jefferson County
action. In its cross-claim, which was directed at Blair and
Trussell, Burr & Forman argued that, because Blair and
Trussell did not perform any legal services in the Tolbert
litigation, they were barred, "legally and ethically," from
receiving any fees generated in that litigation. It also
contended that Blair and Trussell could not recover on the
1994 agreement because, it argued, that agreement did not
"cover, address or relate to the claims of the plaintiffs that
were settled" in the Tolbert litigation, and, even if it did,
Davis had executed the 1994 agreement "without notice to, or
approval by, Burr's executive committee."
1060801
9
On August 3, 2004, Burr & Forman filed a motion in the
St. Clair County action to dismiss the action or to transfer
the action to Jefferson County. It asserted that the St.
Clair Circuit Court lacked jurisdiction over the action
because the claims asserted therein were the subject of the
Jefferson County action, which was the first-filed action. It
also contended that, because Burr & Forman was a partnership,
venue was proper only where one of its partners resided.
Because none of its partners resided in St. Clair County, it
argued, venue was not proper there. It further contended that
the action should be dismissed because Blair and Trussell had
failed to name as a defendant Davis, who, it contended, was an
indispensable party. Finally, it contended that the St. Clair
County action should be transferred to Jefferson County under
the doctrine of forum non conveniens.
On August 16, 2004, Blair and Trussell responded to Burr
& Forman's motion, arguing that Burr & Forman had waived its
venue and abatement arguments by failing to include them in
the answer it filed in the federal court following removal of
the St. Clair County action to the federal court and by
failing to amend its answer to include those defenses. They
1060801
10
also argued that Burr & Forman's abatement defense did not
apply in the St. Clair County action because, they said, the
Jefferson County action did not implicate the 1994 agreement
and because they could not be compelled to file a cross-claim
against Burr & Forman in the Jefferson County action. They
contended that venue was proper in St. Clair County because,
they said, it was in that county that their cause of action
arose. Finally, they argued that Davis was not an
indispensable party to the St. Clair County action because,
under Ala. Code 1975, § 6-7-70, a partnership can be sued
without having to name the individual partners.
On August 20, 2004, Burr & Forman filed an amended answer
in the St. Clair County action asserting that venue there was
not proper, that the action was due to be abated due to the
pending Jefferson County action, that Blair and Trussell had
failed to name an indispensable party, and that the action was
due to be transferred to Jefferson County on the basis of
forum non conveniens.
On August 19, 2004, Burr & Forman and Davis and Norris
filed a motion in the Tolbert litigation to distribute the
undistributed attorney fees that had been awarded in that
1060801
11
case. On August 25, the federal district court ordered Blair
and Trussell to show cause why they should be entitled to a
portion of the undistributed attorney fees. On September 22,
2004, Blair and Trussell filed an objection to, and a motion
to vacate, the show-cause order. They also filed a response
to the show-cause order in which they argued the merits of
their position that they were entitled to a portion of the
attorney fees awarded in the Tolbert litigation.
On September 27, 2004, Blair and Trussell filed a motion
in the St. Clair County action to compel discovery responses
from Burr & Forman. In particular, they sought an order from
the court compelling Burr & Forman to respond to two document-
production requests they had served on it in August 2004 and
compelling Burr & Forman to submit to depositions they had
requested in July and August 2004. On October 6, 2004, the
St. Clair Circuit Court granted Blair and Trussell's motion,
requiring Burr & Forman to produce the requested documents by
October 20, 2004, and to submit a representative of the firm
and Robert Rutherford, an attorney with Burr & Forman, for
depositions by October 27, 2004.
1060801
12
On October 18, 2004, the federal district court entered
an order in the Tolbert litigation in which it determined that
it had jurisdiction to decide the proper allocation of
attorney fees generated by the Tolbert litigation and held
that Blair and Trussell were not entitled to any of those
fees. The federal court made this order final pursuant to
Rule 54(b), Fed. R. Civ. P., and Blair and Trussell appealed
the judgment to the United States Court of Appeals for the
Eleventh Circuit.
On October 21, 2004, the St. Clair Circuit Court entered
an order postponing ruling on Burr & Forman's motion to
dismiss or to transfer and allowing the parties an opportunity
to conduct discovery on the issue of venue. It also
determined that it had "sole and exclusive jurisdiction" over
the dispute between Burr & Forman and Blair and Trussell and
that the federal court's October 18, 2004, order had no effect
on that jurisdiction. The court stated that, "[t]o the extent
the federal court order purports to adjudicate the parties'
claims and defenses already remanded to this Court for
adjudication in this case, the Court respectfully disagrees
with the conclusions of the federal court."
1060801
13
On October 25, 2004, Burr & Forman removed the St. Clair
County action to federal court a second time. Blair and
Trussell moved the federal court to remand the case.
On November 2, 2004, the federal district court ordered
that the undistributed attorney fees generated by the Tolbert
litigation be distributed evenly between Burr & Forman and
Davis and Norris.
On July 22, 2005, the federal district court remanded the
St. Clair County action. In spite of this remand, the federal
district court, on August 2, 2005, entered an order
preliminarily enjoining Blair, Trussell, Davis, and Burr &
Forman from participating in further litigation in the
Jefferson County and St. Clair County actions pending
resolution of Blair and Trussell's appeal of its judgment
against them on the merits of their attorney-fee claim. Blair
and Trussell appealed this preliminary injunction to the
United States Court of Appeals for the Eleventh Circuit, which
consolidated the appeal with their previous appeal.
On November 27, 2006, the Eleventh Circuit Court of
Appeals reversed the federal district court's judgment denying
Blair and Trussell's attorney-fee claim and dissolved its
1060801
14
preliminary injunction of August 2, 2005. Burr & Forman v.
Blair, 470 F.3d 1019, 1022 (11th Cir. 2006). The court found
that when the federal district court remanded the St. Clair
County action and the Jefferson County action to the state
courts from which they had been removed, it thereby disavowed
any jurisdiction over those actions. 470 F.3d at 1034-35.
The court held that the federal district court's disavowal of
jurisdiction
prevented
it
from
subsequently
exercising
jurisdiction over Blair and Trussell's claims in those
actions. 470 F.3d at 1035. The court said: "Once the court
remanded the case its power to adjudicate Blair and Trussell's
claim ceased." 470 F.3d at 1036. The appeals court issued
its mandate on December 26, 2006, dissolving the federal
district court's injunction of the state-court actions.
On December 27, 2006, Burr & Forman filed a supplemental
brief in support of its motion to dismiss or to transfer in
the St. Clair County action. It pointed out to the trial
court that, after it had filed its original motion, this Court
decided Ex parte Miller, Hamilton, Snider & Odom, LLC, 942 So.
2d 334 (Ala. 2006). In that case, this Court held that a
limited-liability company that is treated as a partnership for
1060801
15
federal income-tax purposes resides, for purposes of venue,
where its individual partners reside. 942 So. 2d at 336-37.
Burr & Forman argued that this holding provided further
support for its position that, because it was a partnership
and none of its partners resided in St. Clair County, venue
was not proper in the St. Clair Circuit Court.
Also on December 27, 2006, Burr & Forman filed in the
Jefferson County action its first amended cross-claim against
Blair and Trussell and a motion for a summary judgment.
On January 12, 2007, Blair and Trussell filed a "motion
for default judgment and other sanctions for violation of
court order and discovery abuses" against Burr & Forman in the
St. Clair County action. They asserted that Burr & Forman
never complied with the order of the St. Clair Circuit Court
entered on October 6, 2004, compelling it to respond, by
October 20, 2004, to the requests for production Blair and
Trussell had served on it and compelling it to submit both a
representative of the firm and Robert Rutherford for
depositions by October 27, 2004. Citing Rule 37, Ala. R. Civ.
P., Blair and Trussell requested that the St. Clair Circuit
Court enter a default judgment against Burr & Forman or, in
1060801
16
the alternative, enter an order denying Burr & Forman's
pending motion to dismiss or to transfer the action.
On February 2, 2007, the St. Clair Circuit Court entered
the following order:
"This case comes before the Court on two
separate but related motions: (1) [Burr & Forman]'s
Motion to Dismiss or Abate for Lack of Jurisdiction
and/or for Failure to Join Indispensable Parties, or
in the Alternative, to Transfer on Forum Non-
Conveniens Grounds, filed on August 3, 2004; and
(2) [Blair and Trussell]'s Motion for Default
Judgment and Other Sanctions for Violation of Court
Order and Discovery Abuses, filed on January 12,
2007. The Court has carefully considered the
parties'
written
submissions
concerning
these
motions, as well as the arguments of counsel during
the hearing conducted on January 23, 2007. For the
reasons discussed below, the Court finds that venue
for this dispute is proper in St. Clair County, and
therefore the case shall not be dismissed, abated,
or transferred.
"This fee dispute has roots dating back to 1994,
when the parties to this case, three law firms,
served as co-counsel for the plaintiffs [in] certain
class action lawsuits against Monsanto pending in
St. Clair County, named the Dyer case, case number:
CV-1993-250, and the Shelter Cove case, case number:
CV-1994-50. [Blair and Trussell] contend that the
law firms signed a letter agreement to join together
in pursuing Dyer and Shelter Cove, and to associate
each other and share fees in future cases against
Monsanto for claims arising from alleged PCB
contamination in Lake Logan Martin, which is
situated in St. Clair County, and its tributaries,
Snow Creek and Choccolocco Creek.
1060801
17
"In 2003, Defendant Burr & Forman negotiated a
substantial fee award as part of another PCB case
against Monsanto. [Blair and Trussell] contend they
were never informed of that other case or of Burr &
Forman's involvement, and that disclosure would have
been required by the duties and obligations of the
parties arising from their 1994 letter agreement.
The Complaint seeks damages by asserting claims for
declaratory relief arising out of the letter
agreement, including suppression and breach of
fiduciary duty; and for breach of contract.1
"Under Ala. Code [§] 6-3-2(a)(3), venue is
proper in St. Clair County because this dispute
involves personal actions, and a substantial portion
of the acts and omissions complained of occurred in
St. Clair County. [Burr & Forman] also failed to
assert its venue and abatement defenses in its
original Answer to the Complaint filed in December
2003, and [Burr & Forman] did not amend its Answer
to assert venue or abatement defenses until after
[Blair and Trussell] first had pointed out (in a
brief to this Court) [Burr & Forman]'s failure to
properly and timely raise these defenses.
"It is therefore ORDERED, ADJUDGED AND DECREED
that [Burr & Forman]'s Motion to Dismiss or Abate
for Lack of Jurisdiction and/or for Failure to Join
Indispensable Parties, or in the Alternative, to
Transfer on Forum Non-Conveniens Grounds is hereby
DENIED. Except to the extent [Burr & Forman]'s
venue and abatement objections are overruled, in all
other respects [Blair and Trussell]'s Motion for
Default Judgment and Other Sanctions for Violation
of Court Order and Discovery Abuses is hereby
Denied.
__________________________________
" Rule 8 of the Alabama Rules of Civil Procedure
1
implemented modern rules of notice pleadings, and
the comments to the rule recognize that there is no
1060801
18
technical pleading requirement other than describing
in general the events that transpired, coupled with
a demand for judgment. As a result, this Court's
review of the voluminous record in this case
establishes that tort claims are at issue here
arising from the parties' fee sharing association.
In addition to references in the Complaint, the
underlying claims of suppression and breach of
fiduciary duty were also discussed at length in the
record in connection with [Blair and Trussell's]
Response to Show Cause Order filed in Federal Court
in 2004."
This case is now before this Court on Burr & Forman's
petition seeking a writ of mandamus. The petition asks this
Court to vacate the February 2, 2007, order of the St. Clair
Circuit Court denying Burr & Forman's motion to dismiss the
St. Clair County action or to transfer it to Jefferson County
on the ground that venue in St. Clair County is improper and
to order that court either to dismiss that action or to
transfer it to the Jefferson Circuit Court. Among other
things, the parties also address in their filings in this
Court the issue whether either the Jefferson County action or
the St. Clair County action should be abated because of the
pendency of the other.
On June 6, 2007, after the parties had filed their briefs
with this Court, Blair and Trussell filed a motion to
supplement their answer to the petition with a copy of an
1060801
Burr & Forman opposed the motion to supplement, arguing
1
that the Jefferson Circuit Court's order did not impact the
merits of its mandamus petition.
19
order entered in the Jefferson Circuit Court on June 1, 2007.1
We hereby grant that motion. In that order, the Jefferson
Circuit Court dismissed Burr & Forman's cross-claim against
Blair and Trussell, holding that at the time Burr & Forman
filed its cross-claim against Blair and Trussell in the
Jefferson County action, Blair and Trussell had already filed
their complaint in the St. Clair County action "involving the
same subject matter and ... the same parties" as Burr &
Forman's cross-claim. The court held that because the St.
Clair County action was pending before the cross-claim was
filed in the Jefferson County action, Burr & Forman was barred
from filing its claim against Blair and Trussell in the
Jefferson County action; instead, Burr & Forman was required
by Rule 13(a), Ala. R. Civ. P., and Ala. Code 1975, § 6-5-440,
to file its claim as a compulsory counterclaim in the St.
Clair County action.
II. Standard of Review
Mandamus is an extraordinary remedy, requiring "a showing
that there is: '(1) a clear legal right in the petitioner to
1060801
20
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 Inverness Constr. Co., 775 So. 2d
153, 156 (Ala. 2000) (quoting Ex parte Edgar, 543 So. 2d 682,
684 (Ala. 1989)). A trial court's denial of a motion to
transfer based on improper venue is reviewable by a petition
for writ of mandamus, and "such a petition is due to be
granted if the petitioner makes a clear showing of error on
the part of the trial court." Ex parte Alabama Power Co., 640
So. 2d 921, 922 (Ala. 1994).
III. The Venue Defense
A. The Merits of the Venue Defense.
Burr & Forman contends that venue in St. Clair County is
improper. As it argued to the trial court, Burr & Forman
argues to this Court that, because it is a partnership and
because Blair
and
Trussell's claims
are contractual in nature,
venue for Blair and Trussell's claims is proper only in a
county in which one of its partners reside. According to Burr
& Forman, because none of its partners reside in St. Clair
County, venue is not proper there.
1060801
The fact that Burr & Forman is a limited-liability
2
partnership does not change its treatment as a partnership for
venue purposes. See § 10-8A-1001(i), Ala. Code 1975 ("A
partnership that has registered as a registered limited
liability partnership is for all purposes, except as provided
in Section 10-8A-306, the same entity that existed before the
registration and continues to be a partnership under the laws
of this state subject to the registered limited liability
partnership provisions of this chapter.").
21
Blair and Trussell respond that their complaint asserted
claims sounding in tort, not just in contract. They contend
that the acts complained of occurred in St. Clair County and
that, therefore, venue is proper in that county.
The statute governing venue for individuals, § 6-3-2,
Ala. Code 1975, also governs venue for partnerships. For
purposes of venue, a partnership is deemed to reside where its
partners reside. See Ex parte Miller, Hamilton, Snider &
2
Odom, LLC, supra. Section 6-3-2 provides, in relevant part:
"(a) In proceedings of a legal nature against
individuals:
"....
"(2) All actions on contracts, except as
may be otherwise provided, must be commenced in
the county in which the defendant or one of the
defendants resides if such defendant has within
the state a permanent residence.
"(3) All other personal actions, if the
defendant or one of the defendants has within
1060801
22
the state a permanent residence, may be
commenced in the county of such residence or in
the county in which the act or omission
complained of may have been done or may have
occurred.
"(b) In proceedings of an equitable nature
against individuals:
"....
"(3) Except as may be otherwise provided,
actions must be commenced in the county in
which the defendant or a material defendant
resides."
Because, under the above-quoted statute, venue is
determined based on whether the claims asserted are
contractual or "personal," i.e., sounding in tort, we must
review Blair and Trussell's complaint in the St. Clair County
action to determine the nature of their claims against Burr &
Forman.
As previously noted, the trial court stated in its order
that "[t]he Complaint seeks damages by asserting claims for
declaratory relief arising out of the 1994 letter agreement,
including suppression and breach of fiduciary duty; and for
breach of contract." However, allegations of suppression and
breach of fiduciary duty do not appear on the face of the
complaint. The trial court tacitly recognized as much in
1060801
23
footnote 1 of its order, in which it attempted to buttress the
aforesaid statement as to the types of actions alleged in the
complaint. In that footnote, the trial court correctly noted
that Rule 8, Ala. R. Civ. P., implemented modern rules of
notice pleading. It went on to state, however, that "the
comments to the rule recognize that there is no technical
pleading requirement other than describing in general the
events that transpired, coupled with a demand for judgment."
This latter statement is not correct. As we stated in Archie
v. Enterprise Hospital & Nursing Home, 508 So. 2d 693, 696
(Ala. 1987): "Although the Alabama Rules of Civil Procedure
have established notice pleading, see Rule 8, a pleading must
give fair notice of the claim against which the defendant is
called to defend." (Emphasis added.) Moreover, "[i]t is not
the duty of the courts to create a claim which the plaintiff
has not spelled out in the pleadings." McCullough v. Alabama
By-Prods. Corp., 343 So. 2d 508, 510 (Ala. 1977).
The complaint filed by Blair and Trussell in the St.
Clair County action begins with eight numbered paragraphs by
which Blair and Trussell plead background facts and describe
1060801
24
the general nature of their claims. Paragraph number "1" of
the complaint reads as follows:
"1. This is a complaint for declaratory and
injunctive relief and breach of contract, based on
and arising from an agreement among the parties to
associate each other and share any attorneys' fees
obtained
through
litigation
against
Monsanto
Corporation for the placement of PCB's and other
contaminants in the water systems."
(Emphasis added.)
The claims for relief that follow the eight numbered
paragraphs in the complaint comprise two counts. "Count One"
is titled "Request for Declaratory Judgment and Injunctive
Relief." It consists of paragraph number "9" and a prayer for
relief. Paragraph number 9 reads in its entirety as follows:
"9. Pursuant to the Alabama Declaratory Judgment
Act, Ala. Code § 6-6-222, [Blair and Trussell] seek
a declaration of the parties' rights and obligations
with respect to the 1994 Agreement and the
settlement of the Tolbert matter. Specifically,
[Blair and Trussell] seek a declaratory judgment
that they are entitled to a total of forty percent
(40%) of any attorneys' fee awarded to [Burr &
Forman], based upon the 1994 Agreement."
(Emphasis added.)
"Count Two" is titled "Breach of Contract." (Emphasis
added.) It consists only of paragraph number "10" and a
prayer for relief. Paragraph number 10 reads in its entirety
1060801
We find fault not with the allegations of the complaint,
3
but with the manner in which the trial court construed those
allegations. The complaint appears to be appropriately
drafted to assert the contractual claims it intended to
assert.
25
as follows: "In violation of the 1994 Agreement, [Burr &
Forman] has refused and failed to pay [Blair and Trussell] any
portion of the attorneys' fee award from the Tolbert
litigation." (Emphasis added.)
Even under notice pleading, the allegations of the
complaint simply cannot be construed as asserting claims
sounding in tort. To the contrary, Blair and Trussell's
3
complaint makes clear that the nature of the claims they
assert is contractual. Count one essentially seeks nothing
more than specific performance on the 1994 agreement. Count
two explicitly seeks damages for the alleged breach of the
1994 agreement.
The trial court sought to buttress its conclusion that
the complaint included tort claims by stating that "this
Court's review of the voluminous record in this case
establishes that tort claims are at issue here arising from
the parties' fee sharing association." The trial court's
purported use of the record in this case to determine what
1060801
26
claims
were
being
asserted
by
the
plaintiffs
was
inappropriate; we see no basis for the trial court to have
gone outside the complaint to determine what Blair and
Trussell have pleaded. See Archie, 508 So. 2d at 696;
McCullough, 343 So. 2d at 510. Although it is true that
parties may try by implied consent a claim that has not been
pleaded, see Rule 15(b), Ala. R. Civ. P., here there has been
no trial. We are aware of no rule or other authority
authorizing a trial court to read into a complaint allegations
of unpleaded claims merely because the court sees material in
the pretrial record upon which such claims could be based.
Although Blair and Trussell may believe that Burr &
Forman breached a fiduciary duty it owed them or suppressed
certain facts, they do not seek, through their complaint, to
obtain a remedy for those alleged torts. Indeed, neither the
word "suppression" nor the words "fiduciary duty" nor any
other words of similar import appear anywhere in the complaint
-– not even in the background facts. The complaint simply
1060801
In its brief to this Court, Burr & Forman recount the
4
numerous times in "their Eleventh Circuit briefing [in which
Blair and Trussell] describe their claims in the St. Clair
County complaint ... as breach of contract claims." In its
opinion, the Eleventh Circuit Court of Appeals referred to the
St. Clair action as a "run-of-the-mill contract action." Burr
& Forman v. Blair, 470 F.3d at 1033.
27
fails to give fair notice that any claims other than those
asserting breach of contract are being pursued.4
Because Blair and Trussell's claims are based on the 1994
agreement and sound in contract, venue for their action is
proper, under § 6-3-2, only in a county in which a partner of
Burr & Forman resides. In support of their motion, Burr &
Forman established that none of its partners resides in
St. Clair County. Thus, venue for the St. Clair County action
is not proper in St. Clair County.
B. Other Issues Related to Venue.
In its order denying Burr & Forman's motion for a change
of venue, the St. Clair Circuit Court held that Burr & Forman
waived its defense of improper venue because it did not assert
that defense in its original answer and because it did not
amend its answer to assert that defense until Blair and
Trussell first pointed out that failure to the trial court.
The trial court's holding is in error in both respects.
1060801
28
Rule 12, Ala. R. Civ. P., and, for purposes of this case
particularly Rules 12(b) and 12(h)(1), governs "when" and
"how" a defense such as improper venue is to be asserted. As
a preliminary matter, we summarily dispense with the
suggestion in the trial court's order that anything in Rule 12
forecloses the assertion of a defense merely because the
plaintiff "first point[s] out" to the trial court a
defendant's
failure
to
have
theretofore
asserted
that
defense.
Nothing in Rule 12 does so.
What Rule 12, specifically Rule 12(b), does require is
that "[e]very defense ... be asserted in the responsive
pleading thereto if one is required." As an exception to this
general requirement, Rule 12(b) provides that certain
defenses, including improper venue, may be made by motion.
Even without the benefit of this exception, the answer filed
by Burr & Forman following the removal of the St. Clair County
action to federal court cannot be found lacking for failure to
assert the improper-venue defense at issue here. That defense
-- that § 6-3-2 prevented Blair and Trussell from bringing
their contract action in St. Clair County -- was inapposite to
an action in a federal court. We see nothing in Rule 12 that
1060801
We also note that other jurisdictions have held that, in
5
an action that has been removed to federal court and
subsequently remanded to state court, a defendant does not
waive a defense by waiting until the action is remanded to
assert it when the defense was not available in the federal
court. See Lewis v. Transocean Terminal Operators, Inc., 900
So. 2d 179, 183 (La. Ct. App. 2005) (The "failure to assert an
objection to venue that could not legally be asserted in
federal court should not constitute a waiver of its right to
assert the exception in state court after remand."); Toliver
v. Dallas Fort Worth Hosp. Council, 198 S.W.3d 444, 446-48
(Tex. App. 2006) (objection to venue contained in motion for
a change of venue filed following remand not waived by failure
to include defense in answer filed in federal court). See
generally Ex parte Till, 595 So. 2d 871, 872 (Ala. 1992) ("[A]
party can waive only an objection '"then available to
him."'").
29
would operate to penalize a defendant for failing to raise in
an answer filed in an action removed to federal court a state-
law, procedural defense that would be available to the
defendant only if the case were pending in state court.
5
The defense of improper venue under § 6-3-2 did, of
course, become available to Burr & Forman following the remand
of the St. Clair County action to state court on July 7, 2004.
It thereafter became incumbent upon Burr & Forman, if it
wished to avoid waiving that defense, to assert it in a motion
as contemplated by Rule 12(b) and by Rule 12(g) (requiring the
consolidation in a motion filed under Rule 12 of all defenses
then available which Rule 12 permits to be made by motion) or
1060801
30
in an amendment to its answer. Burr & Forman asserted the
defense both in a motion and in an amendment to its answer.
Rule 12(h)(1) provides that a defense of improper venue
is waived under two circumstances:
"(A) if omitted from a motion in the circumstances
described in subdivision (g), or (B) if it is
neither made by motion under this rule nor included
in a responsive pleading or an amendment thereof
permitted by Rule 15(a) to be made as a matter of
course."
The motion made by Burr & Forman on August 3, 2004, was the
first motion it had made in response to the complaint; the
defense of improper venue was asserted in that motion.
Clause (A) of Rule 12(h)(1) therefore is not applicable
because the defense was not "omitted from a motion in the
circumstances described in subdivision (g)." By the same
token, clause (B) is not applicable because, obviously, the
defense was in fact "made by motion under this rule." For
that matter, it also was "included in a responsive pleading or
an amendment thereof permitted by Rule 15(a) to be made as a
matter of course" when Burr & Forman amended its answer on
August 20. Therefore, there is no basis on which to conclude
that Burr & Forman waived the defense of improper venue.
1060801
31
Blair and Trussell also contend that the trial court's
rejection of Burr & Forman's improper-venue defense was a
discovery sanction that the trial court was within its
discretion to impose. They base this argument on the final
two sentences of the trial court's February 2, 2007, order:
"It is therefore ORDERED, ADJUDGED AND DECREED
that [Burr & Forman]'s Motion to Dismiss or Abate
for Lack of Jurisdiction and/or for Failure to Join
Indispensable Parties, or in the Alternative, to
Transfer on Forum Non-Conveniens Grounds is hereby
DENIED. Except to the extent [Burr & Forman]'s
venue and abatement objections are overruled, in all
other respects [Blair and Trussell]'s Motion for
Default Judgment and Other Sanctions for Violation
of Court Order and Discovery Abuses is hereby
Denied."
In determining the intent of a trial court's order, this
Court considers the trial court's entire writing. E.g.,
Boykin v Law, 946 So. 2d 838, 848 (Ala. 2006). In the present
case, the trial court spent the bulk of its order discussing
the merits of Burr & Forman's motion. As to those merits, the
court specifically and expressly found that venue was proper
in St. Clair County and that it was for this reason that Burr
& Forman's objection to venue was "overruled":
"venue for this
dispute is proper in St. Clair County, and therefore the case
shall not be dismissed, abated, or transferred." Further, the
1060801
32
trial court went on to expressly and specifically discuss its
conclusion that Burr & Forman had waived its improper-venue
defense, clearly indicating in its order that this provided a
supplemental basis for its decision to "overrule" Burr &
Forman's objections to venue in St. Clair County. At no point
in its order does the trial court discuss Blair and Trussell's
request for discovery sanctions.
We take note of the juxtapositional wording found in the
latter of the two sentences of the trial court's order relied
upon by Blair and Trussell. In the context of the entire
order, however, we cannot conclude merely on the basis of that
language that the trial court "overruled" Burr & Forman's
objection
to
venue
as
a
sanction
for
a
discovery
transgression. We reject Blair and Trussell's argument to the
contrary.
IV. Conclusion
Based on the foregoing, we grant the petition. The trial
court is ordered to vacate its February 2, 2007, order denying
Burr & Forman's motion to dismiss or to transfer the St. Clair
County action to the Jefferson Circuit Court, and to enter an
order either dismissing the St. Clair County action or
1060801
33
transferring that action to the Jefferson Circuit Court.
Because of our disposition of the venue issue, we need not
reach the separate issue presented by this petition -- whether
the pendency of either the Jefferson County action or the St.
Clair County action is cause for the abatement of the other.
RESPONDENTS' MOTION TO SUPPLEMENT THE RECORD GRANTED;
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Lyons and Stuart, JJ., concur.
Bolin, J., concurs in the result. | September 12, 2008 |
a4ae7002-a4ac-421b-918f-f6f7b056da90 | Ex parte Jackson County Board of Education. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: John Congleton and Neely Congleton, as the parents and next friend of Kaitlyn Congleton, a minor v. Jackson County Board of Education et al.) | N/A | 1070878 | Alabama | Alabama Supreme Court | REL:8/22/2008
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
____________________
1070878
____________________
Ex parte Jackson County Board of Education
PETITION FOR WRIT OF MANDAMUS
(In re: John Congleton and Neely Congleton, as the parents
and next friends of Kaitlyn Congleton, a minor
v.
Jackson County Board of Education et al.)
(Jackson Circuit Court, CV-04-488)
SMITH, Justice.
The Jackson County Board of Education ("the Board")
petitions for the writ of mandamus directing the Jackson
1070878
2
Circuit Court to enter a summary judgment in its favor in the
underlying action against it based on the immunity provision
of Ala. Const. 1901, § 14. We grant the petition and issue
the writ.
Facts and Procedural History
On November 22, 2002, Kaitlyn Congleton, then five years
old, attended a high school football game with her aunt and
uncle, Michelle and Michael Willingham. Deshler High School
was playing North Jackson High School in the quarter-final
round of the Alabama High School Athletic Association
("AHSAA") Class 4A football play-offs. The game was held at
R.D. Hicks Stadium on the campus of North Jackson High School,
which is located in Jackson County and owned by the Board.
Kaitlyn and her aunt and uncle watched the game from the
visitors' bleachers located in the stadium. At some point
during the game, Kaitlyn fell through an opening between the
footboard and the seat of the bleachers. She suffered a cut
to her head and broke both of her wrists.
Kaitlyn's parents, John Congleton and Neely Congleton, as
Kaitlyn's parents and next friends, subsequently sued the
1070878
3
Board. The Congletons sought damages under theories of breach
of implied contract and breach of implied warranty.
After discovery, the Board filed a motion for summary
judgment,
contending,
among
other
things,
that
the
Congletons'
action was barred by Ala. Const. 1901, § 14, because, the
Board maintained, it was an action against the State. The
trial court denied the Board's motion, and the Board petitions
this Court for mandamus relief.
Standard of Review
"While the general rule is that denial of a
summary-judgment
motion
is
not
immediately
reviewable by an appellate court, the exception to
the general rule is that a denial of a motion for a
summary judgment grounded on a claim of immunity is
immediately reviewable by a petition for a writ of
mandamus ...."
Ex parte Wood, 852 So. 2d 705, 708 (Ala. 2002).
"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).
"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.
1070878
4
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)."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
Discussion
"Section 14, Ala. Const. 1901, provides '[t]hat
the State of Alabama shall never be made a defendant
in any court of law or equity.' This section affords
the State and its agencies an 'absolute' immunity
from suit in any court. Ex parte Mobile County Dep't
of Human Res., 815 So. 2d 527, 530 (Ala. 2001)
(stating that Ala. Const. 1901, § 14, confers on the
State of Alabama and its agencies absolute immunity
from suit in any court); Ex parte Tuscaloosa County,
796 So. 2d 1100, 1103 (Ala. 2000) ('Under Ala.
Const. of 1901, § 14, the State of Alabama has
absolute immunity from lawsuits. This absolute
immunity extends to arms or agencies of the state
1070878
5
....'). Indeed, this Court has described § 14 as an
'almost invincible' 'wall' of immunity. Alabama
State Docks v. Saxon, 631 So. 2d 943, 946 (Ala.
1994).
This
'wall
of
immunity'
is
'nearly
impregnable,' Patterson v. Gladwin Corp., 835 So. 2d
137, 142 (Ala. 2002), and bars 'almost every
conceivable type of suit.' Hutchinson v. Board of
Trustees of Univ. of Ala., 288 Ala. 20, 23, 256 So.
2d 281, 283 (1971). Moreover, if 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.' Patterson, 835 So. 2d at 142-43."
Haley v. Barbour County, 885 So. 2d 783, 788 (Ala. 2004)
(emphasis added). For purposes of § 14 immunity, county
boards of education are considered agencies of the State.
Louviere v. Mobile County Bd. of Educ., 670 So. 2d 873, 877
(Ala. 1995) ("County boards of education, as local agencies of
the State, enjoy [§ 14] immunity."). Thus, this Court has
held that county boards of education are immune from tort
actions. See Brown v. Covington County Bd. of Educ., 524 So.
2d 623, 625 (Ala. 1988); Hutt v. Etowah County Bd. of Educ.,
454 So. 2d 973, 974 (Ala. 1984).
Although it is undisputed that county boards of education
are immune from actions seeking damages under tort claims, the
Congletons contend on appeal, citing Sims v. Etowah County
Board of Education, 337 So. 2d 1310 (Ala. 1976), that prior
1070878
Michelle
Willingham
testified that
she
purchased
a
ticket
1
for Kaitlyn, although the AHSAA's policy was to not charge
admission for children Kaitlyn's age. For purposes of this
mandamus petition, we assume that a ticket was purchased for
Kaitlyn.
6
caselaw has allowed breach-of-contract actions to proceed
against county boards of education. The Congletons contend
that Kaitlyn purchased a ticket, or a ticket was purchased on
her behalf, to enter the premises of North Jackson High School
to watch the football game. The Congletons stated in their
1
complaint that this purchase of a ticket created an implied
contract:
"[The Congletons] further allege that the Defendant,
The Board of Education of Jackson County, Alabama,
entered
into
an
implied
contract
with
the
[Congletons] wherein for consideration paid for said
ticket, the Defendant by implication contracted,
undertook, promised or agreed to provide premises in
a
reasonably
safe
condition
for
use
by
spectators...."
This implied contract, the Congletons maintained, placed the
Board "under a legal duty to provide a reasonably safe
premises" and created an implied warranty that the premises
were safe from defects and were reasonably safe to use. The
Congletons further alleged that the Board breached this duty
and was thus liable for damages on theories of breach of
contract and breach of warranty.
1070878
The Board contends that Sims and its progeny essentially
2
hold that legislation enacted to allow county school boards to
enter into contracts creates an exception to § 14 immunity,
thus
allowing
breach-of-contract
actions
against
county
school
boards. The Board argues that this caselaw is poorly
reasoned, because legislation cannot waive the immunity
provided by the Alabama Constitution and other State agencies
with the power to enter into contracts enjoy protection under
§ 14 from breach-of-contract actions. Additionally, the Board
contends that recent caselaw indicates that an exception to §
14 immunity would allow only actions naming proper officials
in their representative capacity, but not an action against
the Board itself. See Ex parte Alabama Dep't of Transp., 978
So. 2d 17, 22 (Ala. 2007) (stating that "any exceptions to [§
14] immunity extend only to suits naming the proper State
official in his or her representative capacity"), and Alabama
Dep't of Transp. v. Harbert Int'l, Inc., [Ms. 1050271, March
7, 2008] ___ So. 2d ___,___ (Ala. 2008) (dismissing the
Alabama Department of Transportation as a party in the case
because § 14 deprived the trial court of jurisdiction to hear
the action). However, in light of our disposition in this
case, we see no need to address these arguments, and we
express no opinion as to their validity.
7
In response, the Board contends, among other things, that
it is not a party to a contract with the Congletons in this
case. Therefore, the Board argues, the Congletons' action
against
it
actually
sounds
in
tort
and
is
barred.
Specifically, the Board contended in its summary-judgment
motion that there was no contractual relationship between it
and the Congletons, because the football game was conducted by
the AHSAA, not the Board.
2
1070878
8
"The elements of a breach-of-contract claim under Alabama
law are (1) a valid contract binding the parties; (2) the
plaintiffs'
performance
under
the
contract;
(3)
the
defendant's nonperformance; and (4) resulting damages."
Reynolds Metals Co. v. Hill, 825 So. 2d 100, 105-06 (Ala.
2002). The elements of a valid contract include: "'an offer
and an acceptance, consideration, and mutual assent to terms
essential to the formation of a contract.'" Ex parte Grant,
711 So. 2d 464, 465 (Ala. 1997) (quoting Strength v. Alabama
Dep't of Fin., Div. of Risk Mgmt., 622 So. 2d 1283, 1289 (Ala.
1993)). "A contract implied in fact requires the same
elements as an express contract, and differs only in the
'method of expressing mutual assent.' Implied contracts
normally arise in situations where there is a bargained-for
exchange contemplated by the parties, but no overt expression
of agreement." Ellis v. City of Birmingham, 576 So. 2d 156,
157 (Ala. 1991) (quoting Berry v. Druid City Hosp. Bd., 333
So. 2d 796, 799 (Ala. 1976)).
In support of its summary-judgment motion, the Board
presented substantial evidence indicating that it was not a
party to any contract with Kaitlyn, that it made no offer, and
1070878
We note that any contract that might have existed with
3
Kaitlyn, a minor, would not be void, but voidable. Ex parte
Odem, 537 So. 2d 919, 920 (Ala. 1988).
9
that it received no consideration. Specifically, the Board
3
provided the deposition and the affidavit of Kenneth Harding,
a supervisor with the Board who was the principal of North
Jackson High School on the date Kaitlyn was injured.
Harding testified that during the regular football
season, North Jackson High School would conduct home games,
charge admission to the game, "and keep the money." This
changed during the football play-off games, which were under
the "jurisdiction" of the AHSAA. For those games, the AHSAA
would "sponsor" the game, set the ticket prices, and specify
"all the rules and regulations." The AHSAA would schedule the
game, determine who would be the "home" and "visiting" team
for the game, and require the "home" team to provide the venue
for the game. The AHSAA would supply the actual tickets for
the play-off game and would require the "home" school to
provide volunteers to sell those tickets. The money collected
at play-off games was sent to the AHSAA's offices in
Montgomery. Sometime later, the AHSAA would send money back
to the play-off team, the amount based on how far the school
1070878
10
had advanced in the play-offs and how much the ticket sales
had generated. Harding testified that some of the money
collected from ticket sales to a play-off game goes to the
State, some to pay expenses, and some, "not a great
percentage," is given to the school hosting the game.
Harding further testified that the AHSAA set the criteria
that ultimately determined that North Jackson High School
would be the "home" team to host the November 22, 2002, play-
off game between North Jackson High School and Deshler High
School. The AHSAA set the price for admission and furnished
the tickets that were to be sold. Harding was required to
arrange for volunteers to sell those tickets at the game.
Although some of the volunteers were employees of the Board,
Harding testified that the employees' participation was not
required by the Board, that they were not compensated by the
Board, and that they were not acting under the direction of
the Board at the game. All the proceeds from ticket sales
were turned over to the AHSAA after the game. The North
Jackson High School football team subsequently received a
small percentage of the revenue from the play-off games in
which it participated. That money was sent by the AHSAA
1070878
Indeed, the tickets for the game were not even sold
4
exclusively at a facility of the Board; Michael Willingham
bought his ticket at Deshler High School in Tuscumbia.
11
directly to the school and was deposited in the football fund,
which was under the control of the head football coach.
We hold that the Board presented substantial evidence
indicating that it was not a party to a contract with Kaitlyn.
Although the play-off game at which Kaitlyn was injured took
place at a facility owned by the Board, the game was actually
sponsored and controlled by the AHSAA. The decision to hold
the game at North Jackson High School was a decision made by
the AHSAA, not the Board. The AHSAA and volunteers, not the
Board, sold the tickets for the game. Although Harding
4
recruited the volunteers to sell the tickets and collect the
ticket-sale proceeds for the AHSAA, Harding's affidavit
indicates that the Board did not direct or control the
volunteers' activities. All the money received--including the
consideration given for Kaitlyn's ticket--was sent to the
AHSAA. North Jackson High School's football team ultimately
received a payment from AHSAA, but the amount of that payment
was determined by the AHSAA.
1070878
12
For all that appears, the AHSAA--not the Board--conducted
the November 22, 2002, play-off game. Although the Board,
through the North Jackson High School football team,
participated in the game, the evidence suggests that the game
was a function of the AHSAA. Because the Board presented
substantial evidence indicating that it was not a "party" to
any contract formed by the purchase of Kaitlyn's ticket (and,
by necessity, therefore extended no implied warranty), the
burden shifted to the Congletons to produce substantial
evidence creating a genuine issue of material fact as to that
issue.
The Congletons acknowledge in their appellate brief that
the AHSAA was the sponsor of the game and that it set the
rules, regulations, and ticket prices for the game. They
argue, however, that the Board was the "proprietor" of the
game and that North Jackson High School's football team
ultimately received payment from the AHSAA and that,
therefore, the Board was a party to the contract. They note,
citing Harding's deposition testimony, that it was "the
responsibility of the school to provide whatever is necessary
for the playoff game .... This would include providing the
1070878
13
stadium to play the game, as well as personnel to sell
tickets."
Harding's deposition testimony on this issue actually
reveals that he was responding to the directions of the AHSAA:
"[T]he home school and the principal usually is the person
that has to carry out the duties of the [AHSAA] that they
[sic]
assign,
and
so,
you
know,
it's
the
school's
responsibility to provide whatever need is necessary for them
to do what they want you to do." Although this evidence may
suggest that the Board was required to assist the AHSAA in
conducting the game, the evidence shows that the AHSAA was
actually in control. This evidence does not create a genuine
issue of material fact as to whether the Board was a party to
a contract with Kaitlyn.
In Brown v. Covington County Board of Education, supra,
the plaintiff, Brown, was injured when he fell down an
embankment on the grounds of Pleasant Home High School, an
entity operating under the Covington County Board of Education
("Covington County Board"). Brown sued the Covington County
Board, alleging breach of implied warranty and breach of
implied contract, stating that he was on the school grounds to
1070878
14
attend a beauty pageant, a school function for which admission
was charged. This Court noted that no contract existed,
because Brown was injured before he was able to pay for
admission to the beauty pageant. We stated: "If [the
Covington County Board] was culpable under the facts adduced
below, then, it would have been for a tort, for which the
[Covington County Board] was immune." 524 So. 2d at 625.
Because in the instant case the Board established that it
had no contractual relationship with Kaitlyn, the Congletons'
claims that the Board was "under a legal duty to provide a
reasonably safe premises" and that it breached that duty
sounds in tort. Like the claim in Brown, supra, the
Congletons' claim is barred by § 14.
Conclusion
We hold that the Board is entitled State immunity under
§ 14. Therefore, the petition is granted, and the trial court
is directed to enter a summary judgment in the Board's favor.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and See, Woodall, and Parker, JJ., concur. | August 22, 2008 |
beec858e-4eaa-495e-bb13-66f397b275ed | Ex parte Tahsin Industrial Corporation, U.S.A. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: John W. Clanton v. Tahsin Industrial Corporation, U.S.A.) | N/A | 1070998 | 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
_________________________
1070998
_________________________
Ex parte Tahsin Industrial Corporation, U.S.A.
PETITION FOR WRIT OF MANDAMUS
(In re: John W. Clanton
v.
Tahsin Industrial Corporation, U.S.A.)
(Jefferson Circuit Court, CV-07-901818)
LYONS, Justice.
Tahsin
Industrial
Corporation,
U.S.A.
("Tahsin"),
petitions this Court for a writ of mandamus directing the
1070998
2
Jefferson Circuit Court to vacate its order granting John W.
Clanton's consolidated motion for a partial summary judgment,
for a judgment on the pleadings, and to strike its defense
that the Sales Representative's Commission Contracts Act, § 8-
24-1 et seq., Ala. Code 1975 ("the Commission Act"), applies
only to transactions and shipments within Alabama. Tahsin
further asks us to direct the trial court to reinstate its
defense relating to the Commission Act. We deny the petition.
I. Facts and Procedural History
Tahsin is a New Jersey corporation that manufactures
outdoor apparel and sports gear. In 1996 Tahsin and Clanton,
a resident of Alabama, entered into a sales-representation
agreement, which provided that Clanton "shall serve as
[Tahsin's] exclusive sales representative for all accounts
located in the assigned territory specified on Schedule B."
Schedule B specified that Clanton's assigned territory
included Alabama and 16 other states. As compensation for
Clanton's
services,
the
sales-representation
agreement
provided that "[Clanton] shall be entitled to a commission on
the net sales of goods to [Tahsin's] customers in the assigned
territory for orders received by the company ...." The
1070998
3
agreement further provided that "[c]ommission statements
containing accurate purchase order numbers, shipping dates,
customer's name and address, invoice numbers and invoice
dollar amounts shall be sent, together with payment, to
[Clanton] on or about the Fifteenth (15th) day of the month
following the month which the goods are paid for by the
customer."
On August 31, 2007, Clanton sued Tahsin in the Jefferson
Circuit Court, claiming that Tahsin had breached the sales-
representation
agreement
by
secretly
selling
products
directly
to accounts within his assigned territory and by using other
sales representatives to sell products to accounts within his
territory. Clanton asserted that Tahsin had failed to furnish
him, on a monthly basis, certain invoices reflecting sales
that had occurred within his territory and the commissions
owed from these sales. Clanton asserted that the sales-
representation agreement with Tahsin is governed by the
Commission Act, and Clanton therefore sought an award of
treble damages and attorney fees pursuant to § 8-24-3, Ala.
Code 1975. Section 8-24-3 provides: "A principal who fails to
1070998
Section 8-24-2(a) provides: "The terms of the contract
1
between the principal and sales representative shall determine
when a commission is due."
4
pay a commission as required by Section 8-24-2
is liable to
[1]
the sales representative in a civil action for three times the
damages sustained by the sales representative plus reasonable
attorney's fees and court costs."
On October 24, 2007, Tahsin answered Clanton's complaint,
asserting general denials of liability and special defenses.
Tahsin's fifth defense asserted: "Alabama Code 1975[,] § 8-
24-1 et seq.[,] applies only to commissions due and owing for
transactions
or
shipments within Alabama" ("the fifth
defense"). On December 21, 2007, Clanton filed a consolidated
motion for a partial summary judgment, for a judgment on the
pleadings, or to strike Tahsin's fifth defense. Clanton
argued that the plain language of the Commission Act does not
limit its application to transactions or shipments within
Alabama.
After a hearing on Clanton's motion, the trial court
issued an order striking the fifth defense. The trial court's
March 10, 2008, order stated:
"[T]he court concluded that [Clanton] is not limited
to recover for acts or breaches which occurred
1070998
5
within the State of Alabama. The legislature could
have limited the operation of the statute, if that
had been its intent. In the absence of such
limitation, the plaintiff is entitled to prove all
of his claims, wherever they arise, in this forum."
Tahsin then petitioned this Court for a writ of mandamus
directing the trial court to vacate its March 10, 2008, order
and to reinstate Tahsin's fifth defense.
II. Analysis
Tahsin contends that it has a clear legal right to have
the order of the trial court vacated and its fifth defense
reinstated. According to Tahsin, the trial court's order
striking its fifth defense improperly gives § 8-24-3
extraterritorial
effect
and
thereby
improperly
creates
subject-matter jurisdiction for an Alabama court to award
punitive damages for conduct that occurred outside Alabama.
Tahsin avers in its petition:
"Mandamus is a proper means to review the order
of a trial court disallowing the right of a party to
assert an affirmative defense. See Ex Parte Buffalo
Rock Co., 941 So. 2d 273, 277 (Ala. 2006)."
An affirmative defense is in the nature of a confession
and avoidance. See Ex parte Wilson, [Ms. 1051697, November 2,
2007] ___ So. 2d ___, ___ (Ala. 2007) (Lyons, J., concurring
specially). By asserting that it is not subject to the
1070998
6
statutory claim for three times the damages allegedly
sustained by Clanton plus reasonable attorney fees and court
costs under the Commission Act, Tahsin only partially avoids
judgment because its defense, if upheld, would not be
determinative of the action. See Ex parte Employers Mut. Cas.
Co., 845 So. 2d 773, 776 (Ala. 2002) ("Likewise, governed by
the particular concerns of judicial economy raised by the
scenario involved here--a trial court's pretrial decision to
strike a potentially determinative affirmative defense--we
have previously issued the writ [of mandamus] after holding
that the trial court's decision was erroneous, focusing mainly
on the inherent prejudice on the petitioner."). We find no
basis for relief by way of mandamus stemming from Tahsin's
reliance on authority dealing with striking an affirmative
defense.
Tahsin further avers in its petition:
"Mandamus is a proper procedure to review
questions of subject matter jurisdiction. See Ex
Parte Davidson, 782 So. 2d 237, 240 (Ala. 2000); Ex
Parte Alabama Department of Mental Health, 837 So.
2d 808, 810-11 (Ala. 2002)."
We have heretofore recognized mandamus as the appropriate
remedy when the underlying action is beyond the subject-matter
1070998
7
jurisdiction of the circuit court. In Ex parte Davidson, 782
So. 2d 237 (Ala. 2000), cited by Tahsin, this Court issued the
writ of mandamus in a setting where the trial court's order
was void for having been entered after posttrial motions had
been denied by operation of law pursuant to Rule 59.1, Ala. R.
Civ. P. In Ex parte Alabama Department of Mental Health, 837
So. 2d 808 (Ala. 2002), also cited by Tahsin, this Court
awarded mandamus relief where the petitioners asserted State
and State-agent immunity under the Alabama Constitution of
1901. See also Ex parte Fluor Contractors Int'l, 772 So. 2d
1157, 1159-60 (Ala. 2000), dealing with a claim seeking an
award of benefits under the Alabama Workers' Compensation Act,
§ 25-5-1 et seq., Ala. Code 1975, for an injury that occurred
while the employee was working outside Alabama, a circumstance
giving rise to subject-matter jurisdiction only if one of the
conditions specified in § 25-5-35(d) applies; Ex parte
Blankenship, 893 So. 2d 303, 307 (Ala. 2004), dealing with a
sheriff's immunity under the Alabama Constitution of 1901
("[W]e grant the petition for a writ of mandamus and direct
the Talladega Circuit Court to vacate its order denying the
motion to dismiss and to enter an order dismissing the action
1070998
8
for lack of subject-matter jurisdiction."); Ex parte Punturo,
928 So. 2d 1030, 1035 (Ala. 2002), dealing with jurisdiction
conferred by the Parental Kidnapping Prevention Act ("PKPA"),
28 U.S.C. § 1738A, and the Uniform Child Custody Jurisdiction
Act ("UCCJA"), § 30-3-20 et seq., Ala. Code 1975, and issuing
the writ of mandamus ("[T]he PKPA and the UCCJA foreclosed the
Tuscaloosa County Circuit Court from exercising jurisdiction
over the parties and the issues."). None of the foregoing
cases is analogous to the theory of the absence of subject-
matter jurisdiction advanced here by Tahsin.
"Subject-matter jurisdiction concerns a court's power to
decide certain types of cases." Ex parte Seymour, 946 So. 2d
536, 538 (Ala. 2006). It is axiomatic that an Alabama circuit
court has subject-matter jurisdiction over an action for
breach of the sales-representation agreement, given the amount
in controversy in this case. See, e.g., Rose v. Delaney, 576
So. 2d 232, 233 (Ala. 1991) ("This case is a breach of
contract action, a civil matter over which the circuit court
has jurisdiction. § 12-11-30, Alabama Code 1975."). We see
no defect in the trial court's subject-matter jurisdiction
with respect to Tahsin's claimed error in striking its fifth
1070998
9
defense. If a trial court erroneously rejects a contention
that the United States Constitution requires it to refrain
from awarding a certain form of damages, notwithstanding a
state statute authorizing such damages, the remedy is appeal
from the final judgment.
III. Conclusion
Based on the foregoing reasons, we deny Tahsin's
petition.
PETITION DENIED.
Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | August 22, 2008 |
3f319647-42c8-4a48-9f3c-98f29cb485df | Ex parte A.S. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re:L.S. v. A.S.) | N/A | 1071104 | Alabama | Alabama Supreme Court | REL: 8/15/08
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
_________________________
1071104
_________________________
Ex parte A.S.
PETITION FOR WRIT OF MANDAMUS
(In re: L.S.
v.
A.S.)
(Madison Circuit Court, CS-08-19;
Court of Civil Appeals, 2070635)
SEE, Justice.
The Madison County Juvenile Court entered a pendente lite
order granting L.S. ("the great-grandmother") temporary
1071104
The great-grandmother did not file a brief in response
1
to the mother's petition in this Court.
2
emergency custody of her 11-month-old great-grandson ("the
minor child"). The minor child's mother, A.S. ("the mother"),
petitioned the Madison Circuit Court for the writ of mandamus
seeking review of the juvenile court's order. The circuit
court concluded that it lacked jurisdiction to consider the
mandamus petition, and the mother then petitioned the Court of
Civil Appeals for the writ of mandamus. That court dismissed
the mother's mandamus petition as untimely filed.
The mother now petitions this Court for the writ of
mandamus, asking us to review the decisions of the circuit
court and of the Court of Civil Appeals, and to review other
matters both pending before and already decided by the
juvenile court. We deny the petition.
Facts and Procedural History
Three pleadings filed by the great-grandmother and two
1
orders entered by the juvenile court are at issue in this
case.
On February 29, 2008, the great-grandmother filed a
"Motion for Emergency Ex Parte Temporary Relief," in which she
sought "emergency relief due to the dire circumstances which
1071104
Section 12-15-153, Ala. Code 1975, provides:
2
"The court may enter a protection or restraint
order on an emergency basis, without prior notice
and hearing, upon a showing of verified written or
oral evidence of abuse or neglect injurious to the
health or safety of the child and the likelihood
that such abuse or neglect will continue unless the
order is issued. If an emergency order is issued,
a hearing, after notice, must be held within 72
hours or the next judicial business day thereafter,
to either dissolve, continue or modify the order."
See also K.S. v. G.A.B., 911 So. 2d 1085, 1097 (Ala. Civ. App.
2005) ("Both Ala. Code 1975, § 12-15-60(a), ... and Ala. Code
1975, § 12-15-153, ... require a trial court to hold a 72-hour
hearing when a child is summarily removed from parental
custody."). The mother does not address these statutes, and
she does not explain why she was not served with the pendente
lite order until 6 days after it was entered or why,
3
currently exist for the child." Petition at exhibit A. On
March 13, 2008, the great-grandmother also filed a petition
for custody seeking primary physical custody of the minor
child ("the custody petition"). The Madison County Juvenile
Court granted the great-grandmother's motion for emergency
relief and entered an ex parte emergency pendente lite order
on March 18, 2008, giving the great-grandmother emergency
temporary custody of the minor child until the juvenile court
could address the great-grandmother's custody petition. The
mother was served with a summons, the petition, and the
pendente lite order on March 24, 2008.
2
1071104
apparently, no hearing was held within 72 hours.
4
On that same day, the great-grandmother petitioned the
juvenile court for an "Order for Immediate Pick-up of Child"
after the mother refused to allow the great-grandmother to
retrieve the minor child from a neighbor who was temporarily
watching the minor child. On March 27, the juvenile court
entered a second ex parte order authorizing the great-
grandmother to pick up the minor child.
On March 31, 2008, the mother petitioned the Madison
Circuit Court for the writ of mandamus, challenging the ex
parte orders entered by the juvenile court and asking that the
great-grandmother's
custody
petition
be
dismissed
because,
the
mother argued, it failed to invoke the jurisdiction of the
juvenile court. The mother argued to the circuit court that
there were "simply no allegations of sufficient gravity as to
justify the entry of the [pendente lite] order" and, further,
that the custody petition also should be dismissed because it
"did not allege dependency or any other allegation sufficient
to invoke the juvenile court's jurisdiction." Petition at
exhibit B. On April 8, 2008, the circuit court dismissed the
1071104
In its order of dismissal, the Court of Civil Appeals
3
provided only the bare citation to Ex parte Fiber Transport.
In Ex parte Fiber Transport, the court noted that the time
period for filing a petition for the writ of mandamus is not
tolled by the filing of postjudgment motions and that the
issue of timeliness of a petition for the writ of mandamus is
dispositive.
The mother's petition for the writ of mandamus was filed
4
in this Court on May 6, 2008.
5
mother's mandamus petition "for lack of subject matter
jurisdiction." Petition at exhibit D.
The following day, the mother petitioned the Court of
Civil Appeals for the writ of mandamus. She argued that the
circuit court had erred when it dismissed her mandamus
petition. She reiterated that the ex parte orders entered by
the juvenile court had not been supported by allegations that
justified the orders and that the great-grandmother's custody
petition should have been dismissed because, the mother
argued, it failed to invoke the limited jurisdiction of the
juvenile court. On April 22, 2008, the Court of Civil
Appeals, by order, dismissed the mother's mandamus petition as
untimely, citing Ex parte Fiber Transport, L.L.C., 902 So. 2d
98 (Ala. Civ. App. 2004).3
The mother now petitions this Court for the writ of
mandamus. She argues, as she did below, that the ex parte
4
1071104
6
orders entered by the juvenile court were unsupported by
allegations that justified the relief granted and that the
great-grandmother's custody petition should be dismissed
because, the mother argues, it fails to invoke the limited
jurisdiction of the juvenile court. She also argues that both
the circuit court and the Court of Civil Appeals erred in
dismissing her previous mandamus petitions.
Discussion
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
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 497, 499 (Ala. 2005).
"'A decision of a court of appeals on an original
petition for writ of mandamus or prohibition or other
extraordinary writ (i.e., a decision on a petition filed in
the court of appeals) may be reviewed de novo in the supreme
court....'" Ex parte Sharpe, 893 So. 2d 571, 573 (Ala. 2003)
(quoting Rule 21(e)(1), Ala. R. App. P.). "If an original
1071104
7
petition for extraordinary relief has been denied by the court
of appeals, review may be had by filing a similar petition in
the supreme court (and, in such a case, in the supreme court
the petition shall seek a writ directed to the trial judge)
...." Rule 21(e)(1), Ala. R. App. P. "Such review in the
supreme court of a grant or denial must be commenced by filing
the petition in the supreme court within fourteen (14) days of
the grant or denial of the writ by the court of appeals."
Rule 21(e)(2), Ala. R. App. P. The mother filed her petition
for the writ of mandamus in this Court pursuant to Rule
21(e)(1) on May 6, 2008, 14 days after the Court of Civil
Appeals had dismissed her petition. Thus, the mother's
petition is timely, and we proceed to review de novo the
decision of the Court of Civil Appeals.
B. Analysis
In this case, the mother petitioned the Court of Civil
Appeals for the writ of mandamus following the circuit court's
dismissal of her petition. The Court of Civil Appeals,
without an opinion, dismissed the mother's mandamus petition
as untimely, citing in its order of dismissal Ex parte Fiber
Transport, L.L.C., 902 So. 2d 98 (Ala. Civ. App. 2004). The
1071104
"A petition for mandamus pursuant to Rule 21, Ala. R.
5
App. P., and not an appeal, is the proper mechanism available
to a party who deems himself or herself aggrieved by a
pendente lite custody order ...." Trevino v. Blinn, 897 So.
2d 358, 361 (Ala. Civ. App. 2004). See also G.B. v. State
Dep't of Human Res., 959 So. 2d 1116, 1119 (Ala. Civ. App.
2006) ("'As this court has stated before, whether to grant a
pendente lite order is in the trial court's discretion, and
our review of the trial court's exercise of such discretion is
by way of a petition for the writ of mandamus, because a
pendente lite order is not a final judgment. Sizemore v.
Sizemore, 423 So. 2d 239, 241 (Ala. Civ. App. 1982).'"
(quoting P.B. v. P.C., 946 So. 2d 896, 898 (Ala. Civ. App.
2006))).
8
mother argues that her mandamus petition in the Court of Civil
Appeals was not untimely. However, even if the mother's
mandamus petition in the Court of Civil Appeals was timely, we
nonetheless conclude that the mother was not entitled to the
writ because she did not demonstrate a "lack of another
adequate remedy." Ex parte Davis, 930 So. 2d at 499.
Although a petition for the writ of mandamus is a proper
avenue by which to challenge a pendente lite order, an
5
appeal, not a petition for the writ of mandamus, is the proper
avenue for challenging a circuit court's disposition of a
petition for the writ of mandamus. See § 12-22-6, Ala. Code
1975 ("Appeals may be taken to the appropriate appellate court
from the judgment of the circuit court on application for
1071104
9
writs of certiorari, supersedeas, quo warranto, mandamus,
prohibition, injunction and other remedial writs as provided
by the Alabama Rules of Appellate Procedure ...."). See also
Ex parte Ropchock, 510 So. 2d 855, 856 (Ala. Crim. App. 1987)
("'Appeals may be taken to the appropriate appellate court
from the judgment of the circuit court on application for
writs of ... mandamus ... as provided by the Alabama Rules of
Appellate Procedure.' A judgment dismissing a petition for
the writ of mandamus is appealable.").
After the circuit court dismissed the mother's mandamus
petition, she was entitled to appeal that decision under § 12-
22-6, Ala. Code 1975. "It is well settled in this
jurisdiction that mandamus will not lie when there is a remedy
by appeal, and the writ cannot be used as a substitute for
appeal." Echols v. Housing Auth. of Auburn, 377 So. 2d 952,
953 (Ala. 1979). Therefore, we conclude that even if the
mother's petition for the writ of mandamus was timely, she was
not entitled to the writ because she has not demonstrated a
"lack of another adequate remedy." Ex parte Davis, 930 So. 2d
at 499.
Conclusion
1071104
10
For the foregoing reason, we deny the mother's petition
for the writ of mandamus.
PETITION DENIED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | August 15, 2008 |
b9a69408-07b1-46e9-a36a-68b3280db9b9 | James Randall Moon v. Mark R. Pillion | N/A | 1070124 | Alabama | Alabama Supreme Court | REL: 7/11/08
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
____________________
1070124
____________________
James Randall Moon
v.
Mark R. Pillion
Appeal from Baldwin Circuit Court
(CV-05-1226)
SEE, Justice.
James Randall Moon appeals from a partial summary
judgment in favor of Mark R. Pillion on Moon's claims alleging
abuse of process and malicious prosecution against Pillion
1070124
2
stemming from a boundary dispute between the parties. We
affirm.
Facts and Procedural History
Moon and Pillion are owners of adjoining properties that
share a common wire fence for about 616 feet. Pillion
purchased his property in 1992; Moon purchased his property in
1995. At the time the parties became neighbors, the fence was
in place. Around 2000, the parties replaced the wire on the
fence using the existing fence posts. In June 2005, Pillion
commissioned a survey of his property. The surveyor placed
boundary stakes at various points along the property line that
indicated that the fence deviated from the property line by as
much as 18 inches onto Pillion's property for a distance of
about 425 feet. Pillion alleges that after he discovered that
some of the survey stakes had been removed and tossed onto his
side of the fence, he replaced the stakes and placed a 4-foot
high metal "T-post" on Moon's side of the fence to mark the
property line. On June 4, 2005, Moon telephoned the Baldwin
County Sheriff's Department to report that Pillion had placed
a fence post on Moon's property as a "booby trap" for Moon's
children and animals. Officer Scott Boyd responded. After
1070124
3
discussing the matter with both parties, Officer Boyd
encouraged Pillion to paint the post a bright color to prevent
injury to anyone. That same day, Pillion painted the post,
and Moon removed the post and placed it under his barn.
Pillion then contacted Officer Boyd regarding the missing
post. Officer Boyd suggested that Pillion could swear out a
criminal warrant against Moon for third-degree theft for
taking the post. Pillion swore out a warrant against Moon for
theft of "one property boundary marker post." After a trial,
Moon was acquitted of the criminal charge, and he returned the
post to Pillion.
In October 2005, Moon sued Pillion in the circuit court,
alleging malicious prosecution, abuse of process, and
trespass and seeking a judgment declaring the existing fence
to be the true boundary line between the properties. In
October 2006 Pillion moved for a partial summary judgment on
the tort claims. The trial court granted the motion as to the
malicious-prosecution
and
abuse-of-process
claims.
Thereafter, Moon voluntarily dismissed his trespass claim and
withdrew his jury demand on the boundary-line dispute. The
trial court, after a bench trial at which it considered ore
1070124
4
tenus evidence, ruled that Pillion's deed, which the surveyor
had used to place the boundary stakes, and not the fence,
reflected the true boundary between the properties. Moon now
appeals the partial summary judgment as to the malicious-
prosecution and abuse-of-process claims.
Issues
Moon presents two issues on appeal. First, Moon argues
that the trial court erred in entering a summary judgment on
his malicious-prosecution claim because, he says, there is a
genuine issue of material fact as to whether Pillion acted in
good faith in swearing out the criminal warrant against Moon
for theft of the post. Moon also argues that the trial court
erred in entering a summary judgment on his abuse-of-process
claim because, he says, there is a genuine issue of material
fact as to whether Pillion used the issuance of the criminal
warrant against Moon for a wrongful purpose.
Standard of Review
"'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
1070124
5
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, [Ms. 1060306, August 17, 2007] ___ So. 2d ___,
___ (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).
Analysis
I.
Moon argues that the trial court erred in entering a
summary judgment on his malicious-prosecution claim because,
he says, a genuine issue of material fact remains as to
whether Pillion acted in good faith.
1070124
6
"'The elements of malicious prosecution are: (1) a
judicial proceeding initiated by the defendant, (2) the lack
of probable cause, (3) malice, (4) termination in favor of the
plaintiff, and (5) damage.'" Lee v. Minute Stop, Inc., 874 So.
2d 505, 512 (Ala. 2003) (quoting Cutts v. American United Life
Ins. Co., 505 So. 2d 1211, 1214 (Ala. 1987)). However, we
begin by noting that "'"'[m]alicious prosecution is an action
disfavored in the law.'"'" Lee, 874 So. 2d at 511 (quoting
Mitchell v. Folmar & Assocs., LLP, 854 So. 2d 1115, 1117 (Ala.
2003), quoting other cases). "'The reason for such disfavor
is clear: "[P]ublic policy requires that all persons shall
resort freely to the courts for redress of wrongs and to
enforce their rights, and that this may be done without the
peril of a suit for damages in the event of an unfavorable
judgment by jury or judge."'" Mitchell, 854 So. 2d at 1117
(quoting Eidson v. Olin Corp., 527 So. 2d 1283, 1284 (Ala.
1988), quoting in turn Boothby Realty Co. v. Haygood, 269 Ala.
549, 554, 114 So. 2d 555, 559 (1959)).
Moon appears to allege that the summary judgment entered
on his malicious-prosecution claim was improper because, he
says, there is a genuine issue of material fact as to the
1070124
7
second
element
of
malicious
prosecution
–-
whether
Pillion
had
probable cause for the issuance of a criminal warrant.
"Probable cause is defined as '"[a] reasonable ground for
suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in the belief that the
person accused is guilty of the offense charged."'" Eidson,
527 So. 2d at 1285 (quoting Parisian Co. v. Williams, 203 Ala.
378, 383, 83 So. 122, 127 (1919)). This Court has stated:
"The test that this Court must apply when
reviewing the lack-of-probable-cause element in a
malicious prosecution case in which summary judgment
has been granted to a defendant is as follows: Can
one or more undisputed facts be found in the record
below establishing that the defendant acted in good
faith on the appearance of things as they existed
when suit was filed, based upon direct evidence, or
upon circumstantial evidence and inferences that can
reasonably be drawn therefrom? If so, then summary
judgment in favor of the defendant on plaintiff's
malicious prosecution count would be appropriate."
Eidson, 527 So. 2d at 1285-86. In other words, "[i]f there
are any undisputed facts of record establishing that [the
defendant] had probable cause to bring the former action ...
against [the plaintiff], then [the plaintiff] cannot recover
for
malicious
prosecution
and
summary
judgment
is
appropriate." Eidson, 527 So. 2d at 1285. Moon admitted in
his deposition that on June 4, 2005, after Officer Boyd had
1070124
8
spoken with him and Pillion and Pillion had painted the post,
he "went out there and [he] went to the house and got a pair
of gloves and [he] pulled [the post] up .... [He] throwed it
under the barn with a stack mower [he] had." In light of the
undisputed fact that Moon had telephoned the sheriff to
complain about the post and that the post was removed that
same day after Pillion had painted it and placed it back on
Moon's side of the fence, it is clear that Pillion had a
reasonable ground for suspicion that Moon was guilty of theft
of the post. Because Pillion had probable cause for swearing
out the criminal warrant against Moon, Moon failed to prove
lack of a probable cause for the underlying prosecution, and
the summary judgment on the claim of malicious prosecution was
appropriate. We, therefore, affirm the judgment of the trial
court on that claim.
II.
Moon argues that the trial court erred in entering a
summary judgment on his abuse-of-process claim because, Moon
asserts, a genuine issue of material fact remains as to
whether Pillion "'willfully made use of [the criminal action]
for a purpose not justified by law.'" Moon's brief at 20
1070124
9
(quoting Drill Parts & Serv. Co. v. Joy Mfg. Co., 619 So. 2d
1280, 1286 (Ala. 1993) (citations omitted)). "This Court has
held that in order to prove the tort of abuse of process, a
plaintiff must prove: '"(1) the existence of an ulterior
purpose; 2) a wrongful use of process, and 3) malice."'"
Preskitt v. Lyons, 865 So. 2d 424, 430 (Ala. 2003) (quoting
Willis v. Parker, 814 So. 2d 857, 865 (Ala. 2001), quoting in
turn C.C. & J., Inc. v. Hagood, 711 So. 2d 947, 950 (Ala.
1998)). Moon argues two facts in support of his allegation
that Pillion committed a "wrongful use of process" by
"attempting to use the criminal action to resolve a civil
boundary dispute." Moon's brief at 20. First, Moon alleges
that when the parties were entering the courthouse on the day
of the trial of the theft charge against him, he overheard
Pillion tell a security guard that "he was here on a boundary
line
dispute."
Second,
Moon
argues
that
Pillion
"misrepresented to the criminal court that [Moon] had
interfered with a 'boundary' marker as opposed to a T-pole."
Moon's brief at 20. We note that the T-pole apparently was
used by Pillion to mark the boundary between the two
properties.
1070124
10
This Court has stated that "abuse of process will not lie
[where] no result was obtained that is unlawful or improperly
attainable under the law." Dempsey v. Denman, 442 So. 2d 63,
65 (Ala. 1983). In this case, first, even though Moon alleges
that Pillion accused him of stealing a "T-pole" in an attempt
to resolve a boundary dispute, the record reflects that Moon
was found not guilty of the charge of theft and that the
criminal prosecution had no apparent effect on the settlement
of the boundary dispute. Second, even viewing the factual
allegations in the light most favorable to Moon, he "has not
proved that
[Pillion] pursued
the
[criminal] action
'to obtain
a result which the [criminal] process was not intended by law
to effect.'" Willis v. Parker, 814 So. 2d 857, 866 (Ala. 2001)
(quoting Dempsey, 442 So. 2d at 65). We conclude, therefore,
that the trial court did not err in entering a summary
judgment
in
favor
of
Pillion on
Moon's
abuse-of-process claim.
Conclusion
Viewing the facts in the light most favorable to Moon, as
we are required to do, we conclude that he has not
demonstrated that there is a genuine issue of material fact as
to either his claim of malicious prosecution or his claim of
1070124
11
abuse of process. We therefore affirm the trial court's
partial summary judgment in favor of Pillion.
AFFIRMED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | July 11, 2008 |
b3b37348-7889-42f3-97ee-3e509fe1b786 | Ex parte T. R. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: T. R. v. R. C.) | N/A | 1070636 | Alabama | Alabama Supreme Court | REL: 06/27/2008
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, 2007-2008
____________________
1070636
____________________
Ex parte T.R.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: T.R.
v.
R.C.)
(Madison Juvenile Court, CS-03-2556.01;
Court of Civil Appeals, 2060443)
MURDOCK, Justice.
1070636
It does not appear from the materials in the record on
1
appeal that this arrearage related solely to the payment of
2
T.R. ("the mother") is the mother of T.I.R., who was born
in June 1999; the mother and T.I.R. are residents of Ohio. In
June 2000, the Shelby County, Tennessee, Juvenile Court
entered an order declaring that R.C. ("the father") was
T.I.R.'s natural father; the father was a resident of
Tennessee at the time of the adjudication. In part, the order
also required the father to pay "all medical expenses incident
to the birth of [T.I.R.]," to pay child support to the mother
in the amount of $157.50 per month, and to provide medical
insurance for T.I.R. The father's child-support payments were
apparently forwarded to the mother through Tennessee's
"Central Child Receipting Unit" (which withheld a fee of $7.50
from each installment payment) and through the Ohio Department
of Job and Family Services.
At some point after the entry of the June 2000 order, the
State of Tennessee, on the relation of the mother, instituted
proceedings to modify the father's child-support obligation
and to hold him in contempt. In August 2001, the Shelby
County, Tennessee, Juvenile Court entered an order requiring
the father to pay the mother an arrearage of $1,500 but
1
1070636
child support.
3
denying the petition to modify his child-support obligation.
The record does not disclose whether the court held the father
in contempt.
At some point, the father moved to the Huntsville area.
In October 2003, the "Madison County Child Support Unit,"
apparently at the request of the Summit County, Ohio, Child
Support Enforcement Agency, filed a "Notice of Registration of
Order" in the Madison Juvenile Court; the matter was assigned
case no. CS-03-2556. See Ala. Code 1975, § 30-3A-601 et seq.
(providing for the registration and enforcement of foreign
child-support judgments under Alabama's Uniform Interstate
Family Support Act). The notice of registration informed the
father that the June 2000 order had been registered for
purposes of enforcement in Alabama; that according to the Ohio
agency he had a child-support arrearage of $606; that he had
30 days to contest the "validity or enforcement" of the June
2000 order; and that payments under the order should be made
to the Alabama Child Support Payment Center in Montgomery for
transmittal to the State of Ohio. The father apparently did
not contest the registration or the enforcement of the June
1070636
The
Madison
Juvenile
Court
had
jurisdiction
to
modify
the
2
June 2000 order based on the application of § 30-3A-611(a)(1),
Ala. Code 1975.
Also, the State of Alabama, on the relation of the
mother, was named a party plaintiff. The State has not
participated in the present appeal.
4
2000 order. See Ala. Code 1975, § 30-3A-605 (discussing the
contents of the notice of registration); Ala. Code 1975, § 30-
3A-606(a) ("A nonregistering party seeking to contest the
validity or enforcement of a registered order in this state
shall request a hearing within 30 days after the date of
service of notice of the registration obtained under the
Alabama Rules of Civil Procedure."); Ala. Code 1975, § 30-3A-
606(b) ("If the nonregistering party fails to contest the
validity or enforcement of the registered order in a timely
manner, the order is confirmed by operation of law.").
In August 2006, the mother initiated a proceeding in the
Madison Juvenile Court (case no. CS-03-2556.01), alleging that
the father had failed to pay child support as ordered and that
the father's child-support obligation should be increased.2
The mother requested a "judgment ... for child-support
arrearage," an "[o]rder modifying the [father's] child support
[obligation]... pursuant to Rule 32 of the Alabama Rules of
1070636
It is unclear how the referee determined this amount was
3
due.
5
Judicial Administration" (emphasis omitted), and an award of
attorney fees. The Madison Juvenile Court assigned the case
to a referee, who conducted an ore tenus hearing in December
2006. The referee filed her findings and recommendations on
January 5, 2007, which she amended on January 31, 2007. As
amended, the referee's findings and recommendations included
the following:
"6.
At the time the Notice of Registration of Order
was filed in this Court, the [father] owed
$606.00 in arrearages. That arrearage plus
interest was satisfied on or about January
2005.
"7.
There
has
been
a
material
change
in
circumstances, to wit: the respective income
of the parties has changed as well as the
material needs of the child.
"8.
The defendant shall pay the sum of $685 per
month commencing on September 1, 2006, for the
support and maintenance of the minor child.
"9.
The defendant shall pay $585.00 representing
the difference in the amount of child support
since the modification was filed in August
2006. This amount shall be paid within sixty
days of this Report.[3]
"....
"16. ... Each party shall be responsible for their
respective attorney fees.
1070636
Section 12-15-6 has recently been amended and renumbered
4
as Ala. Code 1975, § 12-15-106. See Act No. 2008-277, Ala.
Acts 2008. Paragraph (e)(1) of § 12-15-106 states that "[t]he
[referee's]
written
findings
and
recommendations
shall
contain
a notice that any party has a right to request a rehearing
within 14 days of the date those findings and recommendations
were filed in the office of the clerk of juvenile court."
6
"17. The award of child support made herein was
determined by application of the Child Support
Guidelines established by Rule 32 of the
Alabama Rules of Judicial Administration."
The findings, as amended, informed the parties that they had
14 days to request a rehearing before the Madison Juvenile
Court. See Ala. Code 1975, § 12-15-6(d); Rule 2.1(F), Ala.
4
R. Juv. P.
On February 5, 2007, the mother filed a "Request for
Rehearing." On February 8, 2007, the Madison Juvenile Court
entered an "Order on Re-hearing," stating that it had
considered the mother's motion and that it had
"reviewed the record of such proceedings [before the
referee] as well as the Amended Report, Findings,
and Recommendations [of the referee] ... and concurs
with the findings of the Referee.
"It is therefore ORDERED, ADJUDGED and DECREED
that
the
Amended
Report,
Findings,
and
Recommendations [of the referee] ... are hereby
ratified and they are hereby made the Decree of this
Court."
1070636
7
The mother appealed to the Court of Civil Appeals, which
affirmed the trial court's judgment, without issuing an
opinion. See T.R. v. R.C. [No. 2060443, Oct. 19, 2007] ___
So. 2d ___ (Ala. Civ. App. 2007). Judge Thomas, joined by
Judge Moore, issued a dissenting opinion; Judge Bryan
concurred in the result without issuing an opinion.
On appeal to the Court of Civil Appeals, the mother
argued that the Madison Juvenile Court erred to reversal
because it did not conduct a rehearing, because it ratified an
order that failed to award her a child-support arrearage,
because it ratified an order that failed to properly apply the
Rule 32, Ala. R. Jud. Admin., Child Support Guidelines, and
because it ratified an order that failed to award her attorney
fees. In her brief to this Court, the mother essentially
repeats the arguments she made to the Court of Civil Appeals.
We address the first of these issues: whether the trial court
erred to reversal by failing to conduct a rehearing. In light
or our disposition of this issue, we pretermit consideration
of the latter three issues.
At the time relevant to this appeal, § 12-15-6(d), Ala.
Code 1975, provided:
1070636
As noted above, the legislature recently amended and
5
renumbered § 12-15-6 as Ala. Code 1975, § 12-15-106. See note
4, supra. The parallel provision to § 12-15-6(d) is § 12-15-
106(f), which is almost identical to Rule 2.1(F). Section 12-
15-106(f) provides:
"A rehearing before a judge with authority over
juvenile court matters concerning the matter heard
by the referee shall be scheduled if any party files
a written request therefor within the time frames
provided in subsection (e). Once a rehearing is
scheduled, the parties shall be notified of the
date, time, and the place of the rehearing. Notice
8
"(d) A rehearing before the judge may be ordered
by the judge at any time and shall be ordered if any
party files a written request therefor within 14
days after receipt of the referee's written notice.
Upon rehearing, when adequate records have been kept
in the proceedings before the referee, the court
shall review the record and, in the discretion of
the judge, may admit new evidence. If the referee
has not kept adequate records, the rehearing shall
be de novo."
(Emphasis added.) Also, Rule 2.1(F), Ala. R. Juv. P., states:
"A rehearing before a judge with authority over
juvenile matters concerning the matter heard by the
referee shall be scheduled if any party files a
written request therefor within the time frames
provided in subsection (E) above. Once a rehearing
is scheduled, the parties shall be notified of the
date, the time, and the place of the rehearing.
Notice to a party represented by counsel shall be
given to counsel and such notice shall be sufficient
unless the court orders otherwise. When an adequate
record has been made in the proceeding before the
referee, the judge shall review the record before
rehearing and, in his or her discretion, may admit
new evidence at the rehearing. If the record is not
adequate, the rehearing shall be de novo."
5
1070636
to a party represented by counsel shall be given to
counsel, and this notice shall be sufficient unless
the juvenile court orders otherwise. When an
adequate record has been made in the proceeding
before the referee, the judge shall review the
record before rehearing and may admit new evidence
at the rehearing. If the record is not adequate,
the rehearing shall be de novo."
(Emphasis added.)
9
(Emphasis added.)
Rule 2.1(F) provides, and § 12-15-6 provided, that upon
a written request for a rehearing before a judge, the trial
court shall schedule and conduct a hearing, if for no other
purpose, to provide a party with an opportunity to argue why
the referee erred, why the record is not adequate, and/or why
the record should be supplemented with additional evidence
(regardless of whether there is an adequate record of the
referee's proceedings). In the present case, the mother was
denied her right to a "rehearing" under the rule and the
statute. This was error on the part of the trial court and,
we conclude, error that "affected [a] substantial right[]" of
the mother, i.e., the right to have her case reheard by a
1070636
See also T.R., ___ So. 2d at ___ (Thomas, J.,
6
dissenting)(noting that "the line between a judge and a
referee is not [to be] blurred" and that it is reasonable to
assume that the legislature, in enacting § 12-15-6,
"envisioned that, although referees could perform vital
functions to assist trial judges, they were not to become
substitutes for trial judges").
10
judge. See generally Rule 45B, Ala. R. App. P. (harmless-
error rule).6
Based on the foregoing, the decision of the Court of
Civil Appeals is reversed and this cause remanded for
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,
Bolin, and Parker, JJ., concur. | June 27, 2008 |
e08b8281-e326-41bd-a715-594d34881f96 | Little Narrows, LLC v. Robert B. Scott and Vicki Scott, d/b/a Re/Max Advantage South | N/A | 1061624 | Alabama | Alabama Supreme Court | REL: 06/27/2008
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, 2007-2008
____________________
1061624
____________________
Little Narrows, LLC
v.
Robert B. Scott and Vicki Scott, d/b/a Re/Max Advantage
South
Appeal from Jefferson Circuit Court
(CV-07-900767)
On Application for Rehearing
STUART, Justice.
The opinion of March 7, 2008, is withdrawn, and the
following opinion is substituted therefor.
1061624
2
Little Narrows, LLC, a real-estate-development company
owned and operated by Isaac David, sued real-estate broker
Robert Scott and his wife Vicki Scott, d/b/a Re/Max Advantage
South ("Re/Max"), in the Jefferson Circuit Court, alleging
breach of contract and fraud. The Scotts moved the trial
court for a change of venue to the Shelby Circuit Court and
subsequently moved to dismiss the action on the basis that
Little Narrows' action was based on the same facts and claims
as an action pending in the Shelby Circuit Court; in response
to the Scotts' latter motion, the Jefferson Circuit Court
dismissed Little Narrows' action with leave to file its claims
as counterclaims in the action pending in Shelby County.
Little
Narrows
appealed the Jefferson Circuit Court's
dismissal of its claims. We reverse and remand.
I.
On March 3, 2005, Little Narrows entered into a real-
estate listing agreement naming Re/Max as the listing agent
for the sale of 73 lots in the Courtyard Manor subdivision in
Shelby County; Isaac David's ex-wife, real-estate agent Patti
David, is shown on the agreement as the listing agent. The
purpose of the listing agreement was to give Patti David and
1061624
Little Narrows alleges that both the listing agreement
1
and the addendum are defective; however, that claim is
irrelevant to the issue presented in this case.
3
her company, List With Us, Inc., the exclusive right to sell
the lots in the Courtyard Manor subdivision. Under Alabama
law, real-estate agents such as Patti David, who are not
licensed as real-estate brokers, must work under the direction
of a licensed real-estate broker. Patti David accordingly
operated as a listing agent and salesperson under the
authority of Robert Scott, a licensed real-estate broker.
Section 34-27-34(a)(2), Ala. Code 1975, provides, in pertinent
part:
"A qualifying broker shall be held responsible to
the [Alabama Real Estate] [C]ommission and to the
public for all acts governed by this chapter of each
salesperson and associate broker licensed under him
or her and of each company for which he or she is
the qualifying broker. It shall be the duty of the
qualifying broker to see that all transactions of
every licensee engaged by him or her or any company
for which he or she is the qualifying broker comply
with this chapter. Additionally, the qualifying
broker shall be responsible to an injured party for
the damage caused by any violation of this chapter
by any licensee engaged by the qualifying broker."
On April 26, 2005, Re/Max and Little Narrows entered into
an addendum to the listing agreement. Pursuant to trade
1
standards and the custom in the industry, separate listing
1061624
4
agreements were also subsequently entered into with all the
builders operating in Courtyard Manor.
At some point, the business relationship between Isaac
David and Patti David deteriorated. Isaac David alleges that
Patti David, and by extension her broker Robert Scott, failed
to perform their duties in a professional manner by not
properly staffing the Courtyard Manor sales office, by not
complying with the decisions made by the owners of the lots
and the builders, and by not answering telephone calls and
returning messages, among other things. Isaac David further
alleges that he attempted to discuss these issues with Robert
Scott, but that Scott refused to intervene in Patti David's
operation of the sales office for Courtyard Manor.
Patti David agrees that her business relationship with
Isaac David deteriorated; she, however, alleges that it
deteriorated after he began making repeated and insistent
demands that she engage in sexual relations with him. She
alleges that after she continually refused to do so, Isaac
David threatened that he and his companies, Little Narrows and
The David Group, Inc., would breach the terms of the listing
agreement and cease working with her and further cause the
1061624
Morton works for Isaac David's businesses; Martin is an
2
attorney who was representing Little Narrows.
5
builders and other entities associated with Courtyard Manor to
cease working with her also.
On February 8, 2007, Patti David and "List With Us, Inc.,
d/b/a Re/Max Advantage South" sued Isaac David, Little
Narrows, The David Group, Pat Morton, Guy Martin, and
fictitiously named parties in the Shelby Circuit Court,
alleging
intentional
interference
with
business
or
contractual
relations, conspiracy, and breach of contract. The named
2
defendants subsequently moved to dismiss the action on the
basis that Alabama law allows only licensed real-estate
brokers –– not agents like Patti David –– to enter into
listing agreements and to collect commissions. On April 26,
2007, Patti David filed an amended complaint clarifying that
she was a real-estate agent operating under the authority of
the licensed real-estate broker Robert Scott and his brokerage
Re/Max, and that Re/Max was the party that was to actually
receive the commissions on properties sold in Courtyard Manor.
She also added a third-party-beneficiary claim alleging that
she was the third-party beneficiary of the listing agreement
between Little Narrows and Re/Max and asserting claims of
1061624
6
breach of contract, "intentional, willful, and wrongful
violation of duty," and unjust enrichment.
On April 30, 2007, Little Narrows sued Robert Scott and
his wife Vicki Scott, d/b/a Re/Max, in the Jefferson Circuit
Court, alleging breach of contract and fraud and seeking a
declaration that there were no existing valid contracts
between the parties. On May 10, 2007, the Scotts moved for a
change of venue to the Shelby Circuit Court on the basis that
the action in Jefferson County was based on the same facts and
claims as those in Patti David's previously filed action in
Shelby County. The Scotts also moved, pursuant to Rule
12(b)(6), Ala. R. Civ. P., to dismiss the complaint for
failure to state a claim upon which relief could be granted.
Little Narrows opposed the Scotts' motions and also filed
its own motions seeking to disqualify the Scotts' attorney and
seeking a partial summary judgment. On June 8, 2007, the
Jefferson Circuit Court denied the Scotts' motion for a change
of venue and denied Little Narrows' motion to disqualify the
Scotts' attorney. On June 29, 2007, the Scotts moved the
Jefferson Circuit Court to dismiss or abate Little Narrows'
1061624
7
action on the basis of § 6-5-440, Ala. Code 1975, which
states:
"No plaintiff is entitled to prosecute two
actions in the courts of this state at the same time
for the same cause and against the same party. In
such a case, the defendant may require the plaintiff
to elect which he will prosecute, if commenced
simultaneously, and the pendency of the former is a
good defense to the latter if commenced at different
times."
On July 12, 2007, the Jefferson Circuit Court entered an order
granting the Scotts' motion to dismiss or to abate Little
Narrows' action, stating:
"It appears to the court that the issues are the
same in both cases, that is, whether there was a
valid agreement between [Re/Max] and Little Narrows,
LLC. There are claims for damages by [Re/Max] and
[Patti] David against Little Narrows, LLC, and
claims for damages by Little Narrows, LLC, against
Robert Scott and Vicki Scott, d/b/a [Re/Max]. All
the claims arise out of the same transaction or
events.
"This court finds that a decision in the Shelby
County case would be res judicata on the issues in
this case. Therefore, the claims in this case are
compulsory counterclaims in the action in Shelby
County.
"This action is dismissed with leave for
plaintiff to file counterclaims in the Circuit Court
of Shelby County, Alabama."
Little Narrows appeals.
1061624
Little Narrows also raises the issue whether the Scotts'
3
attorney should be disqualified. However, the attorney whose
disqualification was sought withdrew while this case was
pending on appeal and that issue is thus moot. Little Narrows
has also argued that its motion for a summary judgment should
have been granted; however, this Court will not entertain the
attempted appeal of a denial of a motion for a summary
judgment. See Continental Cas. Co. v. SouthTrust Bank, N.A.,
933 So. 2d 337, 340 (Ala. 2006) ("Although we will review on
the merits the summary judgment for [the appellee], we cannot
entertain [the appellant's] attempted appeal of the denial of
its own motion for a summary judgment. '"Such an order is
inherently non-final and cannot be made final by a Rule 54(b)
certification .... An order denying summary judgment is
interlocutory
and
nonappealable."' Fahey v. C.A.T.V.
Subscriber Servs., Inc., 568 So. 2d 1219, 1222 (Ala. 1990)
(quoting Parsons Steel, Inc. v. Beasley, 522 So. 2d 253,
257-58 (Ala. 1988)).").
8
II.
Little Narrows raises three issues; however, the only
issue we ultimately must consider is whether the Jefferson
County action and the Shelby County action are based on claims
arising from the same facts and circumstances and asserted by
the same parties so as to fall within the scope of § 6-5-440.3
We have previously stated that "[w]hen the facts underlying a
motion filed pursuant to § 6-5-440 are undisputed, as is the
case here, our review of the application of the law to the
facts is de novo." Ex parte Metropolitan Prop. & Cas. Ins.
Co., 974 So. 2d 967, 969 (Ala. 2007) (citing Greene v. Town of
Cedar Bluff, 965 So. 2d 773, 779 (Ala. 2007)).
1061624
9
III.
In Ex parte Bremen Lake View Resort, L.P., 729 So. 2d
849, 851 (Ala. 1999), we stated:
"This Court has held that the obligation imposed
on a defendant under Rule 13(a), Ala. R. Civ. P., to
assert
compulsory
counterclaims, when read in
conjunction with § 6-5-440, Ala. Code 1975, which
prohibits a party from prosecuting two actions for
the same cause and against the same party, is
tantamount to making the defendant with a compulsory
counterclaim in the first action a 'plaintiff' in
that action (for purposes of § 6-5-440) as of the
time of its commencement. See, e.g., Ex parte
Parsons & Whittemore Alabama Pine Constr. Corp., 658
So. 2d 414 (Ala. 1995); Penick v. Cado Systems of
Cent. Alabama, Inc., 628 So. 2d 598 (Ala. 1993); Ex
parte Canal Ins. Co., 534 So. 2d 582 (Ala. 1988).
Thus, the defendant subject to the counterclaim rule
who commences another action has violated the
prohibition in § 6-5-440 against maintaining two
actions for the same cause. We affirm the general
rule expressed in these cases; to do otherwise would
invite waste of scarce judicial resources and
promote piecemeal litigation."
Thus, the question we must answer is whether the claims
asserted by Little Narrows in the underlying action in
Jefferson County are compulsory counterclaims that should have
been asserted in the Shelby County action. Rule 13(a), Ala.
R. Civ. P., defines a "compulsory counterclaim" as
"any claim which at the time of serving the pleading
the pleader has against any opposing party, if it
arises out of the transaction or occurrence that is
the subject matter of the opposing party's claim and
1061624
10
does not require for its adjudication the presence
of third parties of whom the court cannot acquire
jurisdiction."
Little Narrows argues that its claims cannot be considered
compulsory counterclaims because, it argues, its claims are
claims against the Scotts and the Scotts were not "opposing
part[ies]" in the Shelby County action when this action was
filed in Jefferson County. The Shelby County action, Little
Narrows argues, is an action filed by a real-estate agent
(Patti David) against Isaac David and his companies, including
Little Narrows, clients of the licensed real-estate broker
with whom she was working. It would have been impossible,
Little Narrows argues, for it to assert a counterclaim against
the Scotts in the Shelby County action because, Little Narrows
argues, the Scotts were not parties to that case.
The Scotts respond by arguing that the parties in the
Shelby County action and the Jefferson County action are
"substantially identical," inasmuch as Patti David was an
agent of the Scotts' brokerage firm and was acting with their
express authorization and approval when she asserted a third-
party-beneficiary claim based on the contract between Re/Max
and Little Narrows. (Scotts' brief, pp. 19-20.) The Scotts
1061624
11
further note that the doctrine of res judicata –– upon which
both § 6-5-440 and the compulsory-counterclaim rule are based
–– requires only the substantial identity of parties, not
absolute identity. See, e.g., Century 21 Preferred Props.,
Inc. v. Alabama Real Estate Comm'n, 401 So. 2d 764, 770 (Ala.
1981) ("Judgments can bind parties not party (or privy) to the
litigation in question where the nonparties' interests were
represented adequately by a party in the original suit.").
This Court has not previously considered the issue that
is now before us, that is, whether the term "opposing party"
as used in Rule 13(a) should be read strictly to mean a named
party who has asserted a claim against the prospective
counterclaimant in the first instance. However, the United
States Court of Appeals for the Third Circuit discussed this
issue at length in Transamerica Occidental Life Insurance Co.
v. Aviation Office of America, Inc., 292 F.3d 384 (3d Cir.
2002), and concluded that the term "opposing party" in the
parallel federal rule should not be read strictly to encompass
only named parties. After reviewing the existing caselaw on
the topic, current United States Supreme Court Justice Samuel
Alito wrote:
1061624
12
"In each of these cases, courts interpreted
'opposing party' broadly for essentially the same
reasons that courts have interpreted 'transaction or
occurrence' liberally –– to give effect to the
policy rationale of judicial economy underlying Rule
13. Where parties are functionally equivalent as in
Avemco[Insurance Co. v. Cessna Aircraft Co., 11 F.3d
998 (10th Cir. 1993)], where an unnamed party
controlled the litigation, or where, as in Banco
Nacional[de Cuba v. First National City Bank of New
York, 478 F.2d 191 (2d Cir. 1973)], an unnamed party
was the alter ego of the named party, they should be
treated as opposing parties within the meaning of
Rule 13.
"The doctrine of res judicata provides further
support for this approach. Courts have recognized
the close connection between Rule 13(a) and the
doctrine of claim preclusion. See, e.g., Publicis
Communication v. True North Communications Inc., 132
F.3d 363, 365 (7th Cir. 1997) ('The definition of a
compulsory counterclaim mirrors the condition that
triggers
a
defense
of
claim
preclusion
(res
judicata) if a claim was left out of a prior
suit.'). While the Publicis court acknowledged that
it is debatable whether Rule 13(a) is 'strictly an
application of claim preclusion,' it noted that
'both the scope of the doctrine and its rationale
are the same as those of claim preclusion, and most
of the time the label is inconsequential.' Id. at
366. It is therefore noteworthy that in the claim
preclusion
context,
where
an
earlier
lawsuit
establishes the rights or liabilities of a party,
both the named party and those in privity with it
are bound by the holding. See, e.g., CoreStates
Bank, N.A. v. Huls America, Inc., 176 F.3d 187, 194
(3d Cir. 1999) (stating that claim preclusion
applies to 'the same parties and their privities');
Martino v. McDonald's System, Inc., 598 F.2d 1079,
1083 (7th Cir. 1979) ('The principle of res judicata
at issue here treats a judgment on the merits as an
1061624
13
absolute bar to relitigation between the parties and
those in privity with them....').
"....
"...[I]nsofar as Rule 13(a) embodies the scope
and rationale of the doctrine of claim preclusion,
it stands to reason that the term 'opposing party'
in Rule 13(a) should mirror the understanding of the
parallel actors in the res judicata context. Res
judicata acts as a bar to relitigation of an
adjudicated claim between parties and those in
privity with them. See, e.g., CoreStates Bank, N.A.
v. Huls America, Inc., 176 F.3d 187, 194 (3d Cir.
1999); Martino, 598 F.2d at 1083. The rationale is
that if the adjudication of an action is binding on
parties in privity with the parties formally named
in the litigation, then any claims against parties
in privity should be brought in the same action lest
the door be kept open for subsequent relitigation of
the same claims. This is the same reasoning that
underlies Rule 13(a). Therefore, 'opposing party'
in Rule 13(a) should include parties in privity with
the formally named opposing parties."
292 F.3d at 391-93 (footnotes omitted). However, "'[a]lthough
we
attempt
to
weave
a
consistent
pattern
with
our
interpretations of our rules of civil procedure, which were
patterned after the federal rules of civil procedure, we are
constrained not to follow the federal precedent in this
case.'" Ex parte Phillips, 900 So. 2d 412, 417 (Ala. 2004)
(quoting Western Union Tel. Co. v. Crowder, 547 So. 2d 876,
879 (Ala. 1989)).
1061624
14
Rather, our construction of Rule 13(a) begins with the
plain language of the rule itself. Ex parte Haynes Downard
Andra & Jones, LLP, 924 So. 2d 687, 692 (Ala. 2005) ("'"We
start with the basic premise that words used in court rules
must be given their plain meaning."'" (quoting Southeastern
Meats of Pelham, Inc. v. City of Birmingham, 895 So. 2d 909,
913 (Ala. 2004), quoting in turn Nieto v. State, 842 So. 2d
748,
749
(Ala.
Crim.
App.
2002))).
A
"compulsory
counterclaim" is defined in Rule 13(a) as
"any claim which at the time of serving the pleading
the pleader has against any opposing party, if it
arises out of the transaction or occurrence that is
the subject matter of the opposing party's claim and
does not require for its adjudication the presence
of third parties of whom the court cannot acquire
jurisdiction."
(Emphasis added.) Black's Law Dictionary defines a "party"
as: "[o]ne by or against whom a lawsuit is brought." Black's
Law Dictionary 1154 (8th ed. 2004). It is undisputed that the
Shelby County action was neither brought by nor against the
Scotts; thus, the Scotts were not "parties" to it. This is
true regardless of the relationship between the Scotts and
Patti David and regardless of whether the Scotts might have
had some sort of interest in that litigation. Because the
Scotts are not parties in the Shelby County action, any
1061624
This Court has not yet had occasion to consider whether
4
the strong policy reasons favoring the resolution of all
claims based on the same facts in one action are sufficient to
merit the transfer of an action based on "the interest of
justice" as that term is used in Alabama's forum non
conveniens statute, § 6-3-21.1(a), Ala. Code 1975 ("With
15
factually related claims Little Narrows might have against
them are not compulsory counterclaims that must be asserted in
that action. Accordingly, Little Narrows is free to assert
its claims against the Scotts in a separate action in any
appropriate venue without violating § 6-5-440.
Of course, Little Narrows could have elected to assert
its claims against the Scotts in the Shelby County action
filed by Patti David by first joining them as parties.
Principles of judicial economy favor the resolution of claims
based on the same facts –– and certainly claims asserting
breaches of the same contract –– in a singular action.
Separate trials for claims based on the same underlying facts
waste scarce judicial resources and raise the possibility of
inconsistent verdicts. Nevertheless, in spite of the strong
policy reasons that favor resolving Little Narrows' claims
against the Scotts in the same action as Patti David's claims
against Little Narrows, Rule 13(a) cannot be used as a
mechanism to force that result.4
1061624
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 ....").
16
IV.
Rule 13(a) requires a person against whom a claim has
been asserted to state as a counterclaim any potential claims
he or she has against "any opposing party" if those claims
arise out of the same transaction or occurrence that is the
subject matter of the original claim. The failure to do so
results in the waiver of those potential claims. In this
case, Patti David asserted claims against Little Narrows, and
Little Narrows then asserted, in a different venue, claims
against the Scotts. However, even though those claims
asserted by Little Narrows in the Jefferson County action were
based on the same facts and circumstances as the claims
previously asserted by Patti David in the Shelby County
action, they were not counterclaims that Little Narrows was
required to assert in the action initiated by Patti David
because the Scotts were not "opposing parties" in that case.
Thus, Little Narrows, as the defendant subject to the
1061624
17
counterclaim rule, did not violate the prohibition in §
6-5-440 against maintaining two actions for the same cause by
filing its action in the Jefferson Circuit Court, and the
order of the Jefferson Circuit Court dismissing this case was
in error; that order is reversed and the cause remanded.
APPLICATION FOR REHEARING GRANTED; OPINION OF MARCH 7,
2008, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin, and
Parker, JJ., concur.
Murdock, J., concurs specially.
1061624
I have made minor editorial changes to the quoted
5
excerpts.
18
MURDOCK, Justice (concurring specially).
I concur in the main opinion's conclusion and write
separately for the purpose of noting sound policy concerns and
substantial legal authority in support of that conclusion as
set forth in the following excerpts from Little Narrows'
5
brief in support of its application for rehearing:
"The wording 'opposing party' defined as it has
always been to mean 'named party' has the virtue of
clarity. The plain meaning of 'opposing party' is
a named party who asserted a claim against the
putative counterclaimant. ... HID Global Corp. v.
Leighton, [No. 1:07 CV 1972, Nov. 15, 2007] (N.D.
Ohio) [not published in F. Supp. 2d]; GIA-GMI, LLC
v. Michener, 2007 U.S. Dist. [No. C 06-7949 SBA]
(N.D.Cal. June 7, 2007) [not published in F. Supp.
2d]."
In further support of this argument, Little Narrows cites the
case of Noel v. Hall, 341 F.3d. 1148, 1170 (9th Cir. 2003), in
which the court, quoting the Washington case of Nancy's
Product, Inc. v. Fred Meyer, Inc., 61 Wash. App. 645, 650, 811
P.2d 250, 253 (1991), stated: "To interpret the term
'opposing party' in the context of the court rules so as to
include a nonparty with an adverse interest is a non
sequitur."
1061624
19
Little Narrows continues in its brief by arguing that the
position urged by the Scotts would
"place the burden of determining the real party in
interest on the defendant rather than the plaintiff
filing the complaint. So long as 'opposing party'
in Rule 13(a) means exactly that, the named opposing
party, there is no guessing game needed to protect
a client's interest. ...
"....
"... The defendant under the definition of
'opposing party' urged by appellees would be
required at its peril to assume the burden of
figuring out who else may be involved in the range
of 'functional identity of interest' and bear the
burden of waiving its claim if it or its lawyer
guesses wrong.
"The interpretation of Rule 13(a) urged by
appellees will not reduce the demand on precious
judicial resources, but will instead increase that
demand. The only way to know for certain what party
is within the range of 'functional identity of
interest' is to litigate the issue and obtain a
ruling. Discovery must be increased to accommodate
the new needs for knowledge at an early stage of the
proceedings."
I also note that decisions from other federal courts are
in accord with this Court's decision today. See, e.g.,
Ponderosa Dev. Corp. v. Bjordahl, 787 F.2d 533 (10th Cir.
1986); Mesker Bros. Iron Co. v. Donata Corp., 401 F.2d 275
(4th Cir. 1968). See generally Sanders v. First Bank of Grove
Hill, 564 So. 2d 869 (Ala. 1990). | June 27, 2008 |
4dc2a342-dfcb-48cb-84cb-03399f91f09f | J.K., individually, and as next friend of his minor children, K.K. and S.K.; and P.K. v. UMS-Wright Corp., et al. | N/A | 1060407 | Alabama | Alabama Supreme Court | This case was originally assigned to another Justice on
1
this Court; it was reassigned to Justice See on April 22,
2008.
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
____________________
1060407
____________________
J.K., individually and as next friend of his minor children,
K.K. and S.K.; and P.K.
v.
UMS-Wright Corporation et al.
Appeal from Mobile Circuit Court
(CV-06-1184.51)
SEE, Justice.1
J.K., individually and as next friend of his minor
1060407
2
children K.K. and S.K., and P.K., the mother of the minor
children, appeal from a judgment enforcing a settlement
agreement with the defendants, UMS-Wright Corporation; Dr.
Tony Havard, individually and in his official capacity as
headmaster of the school; Mr. Ed Lathan, individually and in
his official capacity as upper-school principal; and the
members of the board of trustees of UMS-Wright. We affirm in
part, reverse in part, and remand.
I. Facts and Procedural History
UMS-Wright Corporation operates UMS-Wright Preparatory
School, which is located in Mobile. In 2001, J.K. and P.K.
had three children, V.K., S.K., and K.K., enrolled at UMS-
Wright Preparatory School. On November 8, 2001, V.K. was
placed on behavior and academic probation. According to a
memorandum prepared by Principal Lathan, on the day after V.K.
was placed on probation he violated the terms of that
probation by making physical threats toward another student.
Principal Lathan recommended that V.K. be expelled. On
November 10, Principal Lathan informed P.K. that V.K. was
being expelled from UMS-Wright Preparatory School.
On November 17, 2004, V.K. entered the UMS-Wright campus.
1060407
3
School administrators approached him and asked him to leave.
UMS-Wright sent a letter to J.K. and P.K. informing them that
V.K. had violated UMS-Wright policy by entering the campus
without permission, that V.K. was not to enter the campus
without prior administrative permission, and that the letter
was to serve as "a trespassing after warning letter."
Principal Lathan conferred with P.K. to discuss the
trespassing
incident.
Principal
Lathan
informed
P.K.
that,
if
V.K. continued to enter the UMS-Wright campus, he would be
arrested; and that any further incidents involving V.K. could
jeopardize S.K. and K.K.'s enrollment at the school.
During the 2005-2006 school year, S.K. and K.K. were
enrolled as students at the school. On March 28, 2006, V.K.,
who was by then an adult, and two unidentified companions
entered the UMS-Wright campus and confronted a student. V.K.,
or one of his companions, assaulted the student and knocked
him unconscious. Another student attempted to help his
unconscious classmate. While the student was struggling with
one of V.K.'s companions, his wallet fell onto the ground, and
one of V.K.'s companions took the wallet. V.K. and his
companions then left the campus.
1060407
4
The next day Dr. Havard learned about the incident. He
believed that, so long as S.K. and K.K. were enrolled as
students, V.K. would continue to have a reason to come onto
the campus. Therefore, he concluded, S.K. and K.K.'s
enrollment at UMS-Wright Preparatory School posed a safety
risk to students and staff. On March 30, 2006, Dr. Havard met
with P.K. and told her that S.K. and K.K. were being dismissed
as students. Security escorted P.K., S.K., and K.K. from the
UMS-Wright campus.
On April 6, 2006, J.K., individually and as next friend
of S.K. and K.K., and P.K. sued UMS-Wright Corporation, Dr.
Havard, and Principal Lathan (hereinafter referred to
collectively as "UMS-Wright"), as well as the members of the
board of trustees of UMS-Wright Corporation, alleging
negligence, breach of contract, and due-process violations.
J.K. and P.K. also alleged against Dr. Havard and Principal
Lathan, both in their individual capacities and as employees
of
UMS-Wright
Corporation,
intentional
infliction
of
emotional
distress as to P.K., S.K., and K.K. In the final count of the
complaint, J.K. and P.K. alleged that the members of the board
of trustees negligently and/or wantonly failed to supervise
1060407
Upon motion by UMS-Wright and the members of the board
2
of trustees, V.K. was added as a third-party defendant.
5
the school's employees and staff. J.K. and P.K. also moved
2
for a temporary restraining order, contending that S.K. and
K.K. would be irreparably harmed if they were not immediately
reinstated as students and contending that an expulsion on
their academic records would adversely impact their prospects
for admission to the college or university of their choice.
After hearing arguments, the trial court denied the motion for
a temporary restraining order.
Four days later, J.K. and P.K. moved for a preliminary
injunction. The trial court held a hearing on the motion, but
the parties reached an agreement before the trial court
decided the motion. The agreement allowed S.K. and K.K. to
complete their school year at home but prohibited S.K. and
K.K. from entering the UMS-Wright campus or attending any
school functions. This agreement effectively rendered moot
the pending petition for injunctive relief.
On April 20, 2006, the members of the board of trustees
moved the trial court to dismiss all claims against them,
arguing that pursuant to § 10-11-3, Ala. Code 1975, the
1060407
J.K. later informed Galanos that Galanos's authority to
3
settle the case was subject to J.K.'s prior approval of Dr.
Havard's apology letter.
6
trustees, as non-compensated officers of a not-for-profit
institution, are immune from suit. The trial court heard oral
arguments from the parties and dismissed with prejudice all
the claims against the members of the board of trustees. J.K.
and P.K. moved the trial court to reconsider that dismissal,
but the trial court denied the motion.
The
remaining
parties
entered
into
settlement
negotiations. They discussed the dismissal of the action in
exchange for a letter of apology from Dr. Havard. At a second
meeting, Chris Galanos, one of the attorneys for J.K. and
P.K., apparently represented to the other parties that he had
the authority to settle the case. Counsel for UMS-Wright
3
presented J.K. and P.K.'s attorneys with a proposed letter of
apology, a stipulation for dismissal with prejudice, a
proposed settlement agreement, and a proposed release. J.K.
and P.K.'s attorneys reviewed the documents and signed the
stipulation for dismissal; however, they did not sign the
proposed
settlement agreement
or
proposed
release,
in
order
to
give J.K. the opportunity to review the documents, including
1060407
7
the proposed letter of apology. According to UMS-Wright, J.K.
and P.K. were to sign the settlement agreement, and counsel
for UMS-Wright would then file the joint stipulation for
dismissal.
J.K.
refused
to
sign
the
settlement
agreement.
Consequently, UMS-Wright's
attorney
wrote
a letter
to
J.K. and
P.K.'s counsel stating that it was his belief that the parties
had reached a valid settlement and that if J.K. and P.K. did
not sign the settlement agreement UMS-Wright would move to
enforce the settlement agreement. Counsel for J.K. and P.K.
responded by letter indicating that his clients were willing
to settle the case if Dr. Havard would agree to sign a
proposed letter of apology drafted by J.K. The attorneys for
the parties scheduled a meeting between Dr. Havard and J.K. so
that they could attempt to resolve the dispute. That meeting,
however, did not occur.
UMS-Wright moved to enforce the settlement agreement.
J.K. and P.K. responded that the settlement agreement was not
enforceable against S.K. and K.K., because a next friend does
not have the authority to settle the case on behalf of a
minor. Therefore, they argued, the settlement could not be
1060407
Section 34-3-21, Ala. Code 1975, provides:
4
"An attorney has authority to bind his client,
in any action or proceeding, by any agreement in
relation to such case, made in writing, or by an
entry to be made on the minutes of the court."
8
enforced against S.K. and K.K. without the appointment of a
guardian ad litem and a pro ami hearing. Also, although J.K.
and P.K. acknowledged that an attorney has the authority to
bind a client, they argued that the settlement agreement is
unenforceable against them because, they say, it does not
comply with the requirements of § 34-3-21, Ala. Code 1975.4
Specifically, J.K. and P.K. contended that the agreement does
not satisfy the requirements of the statute because it had not
been reduced to writing or entered upon the minutes of the
court and because there had been no meeting of the minds as to
the terms of the settlement. UMS-Wright agreed that a pro ami
hearing
was
needed
to
enforce
the
settlement
agreement
against
S.K. and K.K.
The trial court held a hearing and granted UMS-Wright's
motion to enforce the settlement agreement against J.K. and
P.K. and, based on the stipulation of dismissal, dismissed
J.K. and P.K.'s claims against UMS-Wright and scheduled a pro
1060407
9
ami
hearing
to
determine whether
the agreement was
enforceable
as to the minor children.
J.K. and P.K. moved the trial court to vacate and/or set
aside the dismissal of their claims. J.K. and P.K. reiterated
their
argument
that
the
settlement
agreement
was
unenforceable
against them because it had not been reduced to writing or
entered upon the minutes of the court. J.K. and P.K. argued
further that their attorney did not have the authority to bind
them to the settlement agreement.
The trial court held a pro ami hearing that included
testimony from J.K., P.K., S.K., and K.K. At the conclusion
of the hearing, the trial judge found that the settlement was
in the best interests of the children and dismissed the
remaining claims against UMS-Wright. He later entered a final
order denying J.K. and P.K.'s motion to vacate or set aside
the dismissal of their claims and confirming the finding that
the settlement was in the best interests of the children.
J.K. and P.K. appeal.
II. Dismissal of the Board of Trustees
A. Standard of Review
"The appropriate standard of review of a trial
court's grant of a motion to dismiss under Rule
1060407
10
12(b)(6) 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 [him] to
relief. In making this determination,
this Court does not consider whether the
plaintiff
will
ultimately
prevail,
but
only
whether [he] may possibly prevail.'"'"
Rester v. McWane, Inc., 962 So. 2d 183, 185 (Ala. 2007)
(quoting EB Invs., L.L.C. v. Atlantis Dev., Inc., 930 So. 2d
502, 507 (Ala. 2005), quoting in turn other cases).
B. Analysis
J.K. and P.K. first argue that the trial court erred in
dismissing the members of the board of trustees as defendants
only two weeks after their action was filed. In their motion
to dismiss, the trustees argued that they were entitled to
immunity under § 10-11-3, Ala. Code 1975, which provides:
"Any noncompensated officer of a qualified
entity shall be immune from suit and not subject to
civil liability arising from the conduct of the
affairs of such qualified entity except when the act
or omission of such officer, which gives rise to a
cause of action, amounts to willful or wanton
misconduct or fraud, or gross negligence. Provided
however, such immunity shall not, except to such
extent as may otherwise be provided by law, extend
to the qualified entity, to a for-profit subsidiary
of such qualified entity or to the officers of such
for-profit subsidiary but only to the qualified
1060407
The Internal Revenue Code expressly provides that
5
"[c]orporations, and any community chest, fund, or foundation
organized and operated exclusively for ... educational
purposes" qualifies as a tax-exempt
entity.
I.R.C.
§ 501(c)(3)
(2000).
11
entity's officers as defined in this chapter.
Nothing contained herein shall be construed to
immunize the corporate entity or qualified entity
for the acts or omissions of noncompensated officers
as defined in this chapter."
A qualified entity is defined as "[a]ny not-for-profit
corporation, association or organization which is exempt from
federal income taxation under 501(c) of the Internal Revenue
Code of 1954, as amended." Section 10-11-2(1)(a), Ala. Code
1975. J.K. and P.K. contend that the trustees are not
5
entitled to the qualified immunity provided by § 10-11-3
because their complaint alleged that the board of trustees had
acted "negligently/wantonly." Therefore, we must determine
whether J.K. and P.K. alleged any cause of action that could
overcome the trustees's claim of immunity.
J.K. and P.K. named the board of trustees as defendants
in four of the six claims asserted in the complaint. The only
claims that could arguably overcome the trustees' invocation
of immunity are the claims in Counts one and six of the
complaint, alleging, as to the trustees, "negligent/wanton"
1060407
J.K. and P.K. also alleged in the complaint that the
6
trustees wantonly failed to supervise the school's employees.
However, this claim is neither raised nor addressed in J.K.
and P.K.'s principal or reply briefs on appeal; thus, we do
not address this argument. "'[W]hen the appellant fails to
invite the appellate court's review of any issues raised from
the court below, the trial court's judgment is due to be
affirmed.'" Waters v. University of Alabama Hosps., 591 So. 2d
450, 451 (Ala. 1991) (quoting Wilger v. James, 431 So. 2d
1166, 1168 (Ala. 1983)).
12
conduct and "negligent/wanton" failure to supervise.
J.K. and P.K. do not adequately demonstrate in their
brief to this Court how the trial court erred in dismissing
with prejudice their claims against the trustees. They cite
Shaddix v. United Ins. Co. of America, 678 So. 2d 1097 (Ala.
Civ. App. 1995), for the general proposition that a dismissal
based upon a failure to state a claim for which relief can be
granted is properly granted only when the plaintiff cannot
prove any set of facts that would entitle the plaintiff to
relief.
Although
this
accurately describes
the legal standard
with which a court evaluates a Rule 12(b)(6), Ala. R. Civ. P.,
motion, J.K. and P.K. do not point to any set of facts that
would entitle them to relief on their claims that the trustees
acted wantonly by dismissing S.K. and K.K. as students. J.K.
6
and P.K. merely cite to page 7 of their complaint, where they
1060407
13
allege that the defendants, including the members of the board
of trustees, "owed the Plaintiffs' minor children the duty to
fairly and impartially promulgate rules governing honor,
personal conduct, and academic standards and avoid arbitrary
and capricious decisions in enforcing those rules," and that
UMS-Wright and the members of the board of trustees wantonly
breached those duties by expelling the children based upon the
conduct of a third party. These allegations do not
demonstrate that the members of the board of trustees were or
could have been wanton in the performance of their alleged
responsibilities. Not only do J.K. and P.K. not describe with
any specificity conduct of the trustees that they consider to
have been wanton, but they also fail to cite any statute or
caselaw that defines wantonness, and they do not illustrate
how the actions by the members of the board of trustees could
satisfy any such definition. "'"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. v. Media General, Inc., [Ms.
1060211, January 25, 2008] ___ So. 2d ___, ___ (Ala. 2008)
(quoting Henderson v. Alabama A & M Univ., 483 So. 2d 392, 392
1060407
14
(Ala. 1986), quoting in turn Gibson v. Nix, 460 So. 2d 1346,
1347 (Ala. Civ. App. 1984)). Because J.K. and P.K. have not
provided us with a standard against which to evaluate the
trustees' allegedly wanton behavior in expelling the children
on the basis of a third party's actions, the trial court's
judgment on this issue is affirmed.
J.K. and P.K. also argue that the motion to dismiss filed
by the members of the board of trustees should have been
treated as a motion for a summary judgment, because in ruling
on the motion the trial court considered matters outside the
pleadings. J.K. and P.K. cite Phillips v. AmSouth Bank, 833
So. 2d 29 (Ala. 2002), for the proposition that a trial court
commits reversible error if it converts a Rule 12(b)(6), Ala.
R. Civ. P., motion into a motion for a summary judgment under
Rule 56, Ala. R. Civ. P., and enters a summary judgment
without affording the opposing party a reasonable opportunity
to conduct discovery. See Rule 12(c), Ala. R. Civ. P. In
Phillips, this Court stated that when a motion to dismiss is
converted into a motion for a summary judgment, the nonmovant
is entitled to receive "'(1) adequate notice that the trial
court intends to treat the motion as one for summary judgment
1060407
J.K. and P.K. also cite Parmater v. Amcord, Inc., 699 So.
7
2d 1238 (Ala. 1997), for the proposition that a dismissal with
prejudice operates as an adjudication on the merits. J.K. and
P.K. contend that "[t]he dismissal of the Board clearly was
not an adjudication on the merits and resulted in a permanent
denial of the fundamental right to prove a claim made in good
faith." J.K. and P.K.'s brief at 35. However, Parmater does
not support J.K. and P.K.'s argument because this Court in
Parmater merely concluded that a dismissal with prejudice can
operate as an adjudication on the merits for res judicata
purposes. 699 So. 2d at 1241 ("Iowa courts have held that a
settlement or consent judgment and subsequent dismissal with
prejudice ... can be the basis of a plea of res judicata. ...
Likewise, this Court has also held that a dismissal with
prejudice is an adjudication on the merits.").
15
and (2) a reasonable opportunity to present material in
opposition.'" 833 So. 2d at 31 (quoting Graveman v. Wind Drift
Owners' Ass'n, 607 So. 2d 199, 202 (Ala. 1992)). However,
J.K. and P.K. do not argue that the members of the board of
trustees submitted additional materials with their motion to
dismiss. In fact, the materials in the record indicate that
the trustees did not submit any accompanying affidavits or
documents with their motion to dismiss. Therefore, Phillips
does not support J.K. and P.K.'s argument. Because J.K. and
P.K. have not adequately articulated how the trial court erred
in dismissing with prejudice their claims against the members
of the board of trustees, we affirm the trial court's
dismissal of those claims.7
1060407
16
III. Enforceability of Settlement Agreement
J.K. and P.K. also argue that the trial court erred in
finding that the settlement agreement was enforceable,
because, they say, J.K. and P.K.'s attorney did not have
express authority to bind them and their minor children to a
settlement agreement. Section 34-3-21, Ala. Code 1975,
provides: "An attorney has authority to bind his client, in
any action or proceeding, by any agreement in relation to such
case, made in writing, or by an entry to be made on the
minutes of the court." In applying § 34-3-21, Alabama courts
have recognized that
"'"[a]n attorney may not consent to a final
disposition of his client's case without express
authority. Although an attorney of record is
presumed
to
have
his
client's
authority
to
compromise and settle litigation, a judgment entered
upon an agreement by the attorney may be set aside
on affirmative proof that the attorney had no right
to consent to its entry."'"
Roberson v. State ex rel. Smith, 842 So. 2d 709, 712 (Ala.
Civ. App. 2002) (quoting Warner v. Pony Express Courier Corp.,
675 So. 2d 1317, 1320 (Ala. Civ. App. 1996), quoting in turn
Blackwell v. Adams, 467 So. 2d 680, 684-85 (Ala. 1985)).
"'"[W]hether an attorney has authority to bind his client by
an agreement to settle the case by consent is a question of
1060407
17
fact."'" Alexander v. Burch, 968 So. 2d 992, 996 (Ala. 2006)
(quoting Warner, 675 So. 2d at 1320, quoting in turn
Blackwell, 467 So. 2d at 684). "Where a trial court does not
make an express finding of a particular fact, this court will
assume that it found the fact necessary to support its
judgment unless the finding of fact would be clearly erroneous
and against the great weight of the evidence." Benitez v.
Beck, 872 So. 2d 844, 847 (Ala. Civ. App. 2003) (citing Jones
v. Stedman, 595 So. 2d 1355 (Ala. 1992)).
J.K. and P.K. also contend that the trial court erred in
finding
that
the
settlement
agreement
was
enforceable
because,
they argue, the trial court never held a hearing to determine
whether J.K. and P.K.'s attorney in fact had express authority
to settle the case. J.K. and P.K. cite Alexander v. Burch for
the proposition that "[a]n express finding of fact that the
attorney had the authority to bind his client is a condition
precedent to a conclusion that a settlement exists." J.K. and
P.K.'s brief at 23. They maintain that "[t]he only way,
therefore, to have determined the presence or absence of
'express, special authority' would have been to conduct an
evidentiary hearing for the purpose of considering the
1060407
18
testimony of [J.K.] and Mr. Galanos, since they were the only
two persons who participated in the conversation." J.K. and
P.K.'s reply brief at 10-11.
In Alexander, the plaintiff contested the enforceability
of a proposed settlement agreement because the plaintiff
insisted that she never authorized her attorney to settle her
personal-injury claim for the particular amount in the
settlement
offer.
At
a
hearing
to
determine
the
enforceability of the settlement agreement, the trial judge
heard conflicting testimony from the plaintiff and her
attorney concerning whether the attorney had authority to
settle the plaintiff's claim. Alexander, 968 So. 2d at 995.
The trial judge found that the settlement agreement was
enforceable. However, we reversed the judgment of the trial
court, concluding that "[i]f the judge had actually made a
finding accepting [the attorney's] version of the disputed
facts, or if the state of the record was such that a finding
to that effect could be deemed implicit in the trial court's
order, we would affirm." 968 So. 2d at 997-98. We remanded
the case with instructions for the trial court to explain on
return to remand whether it had made a finding of fact
1060407
19
regarding the settlement authority of the plaintiff's
attorney.
Relying on Alexander, J.K. and P.K. argue that the trial
court erred by failing to conduct a hearing to make an
explicit finding of fact regarding whether their attorney was
authorized to accept the proposed settlement agreement. In
Alexander, the trial court had not made an explicit finding
that the plaintiff's attorney was authorized to settle the
plaintiff's claim. Further, the conflicting evidence in the
record in Alexander, including a statement by the trial judge
that he was forgoing making a finding on the authority issue,
did not allow this Court to assume that the trial judge had
found that the attorney was authorized to settle the
plaintiff's claim.
In this case, as in Alexander, the trial court did not
make a finding of fact that J.K. and P.K.'s attorney was
authorized to settle the case. Moreover, J.K. and P.K.'s
attorney's refusal to sign the settlement agreement and to
approve the letter, J.K.'s rejection of the proposed apology
letter and his statement to the attorney that his authority to
settle was subject to J.K.'s approval of the apology letter,
1060407
20
the ongoing telephone conversations between counsel for UMS-
Wright and J.K. and P.K.'s attorney after the settlement
meeting, and the later scheduled-but-canceled meeting between
J.K. and Dr. Havard indicate that no settlement had been
reached because the attorneys were awaiting J.K. and P.K.'s
approval of the settlement agreement. This Court will not
assume that the trial court made the finding that J.K.
authorized J.K. and P.K.'s attorney to settle the case because
that would appear to be against the great weight of the
evidence. See Benitez, 872 So. 2d at 847 ("Where a trial court
does not make an express finding of a particular fact, this
court will assume that it found the fact necessary to support
its judgment unless the finding of fact would be clearly
erroneous and against the great weight of the evidence.").
This case, however, differs from Alexander in that J.K.
and P.K. have argued only that the agreement was unenforceable
because it was not reduced to writing or entered on the
minutes of the court and because there was no meeting of the
minds as to the terms of the agreement. J.K. and P.K. raised
the argument that their attorney lacked the authority to
settle the case in their postjudgment motion after the trial
1060407
21
court had already found that the settlement agreement was
enforceable and dismissed the claims against UMS-Wright. The
trial court conducted a hearing, on September 27, 2006, to
decide whether the settlement agreement was enforceable.
Nothing in J.K. and P.K.'s response to UMS-Wright's motion to
enforce the settlement, or in the record, indicates whether
J.K. and P.K.'s attorney argued at that hearing that Galanos
was not authorized to settle the case. As UMS-Wright points
out, it was not until after the trial court decided that the
settlement agreement was enforceable that J.K. and P.K. first
argued that their attorney did not have the authority to
settle the case. Because the issue of Galanos's authority to
settle was not before the trial court at the enforceability
hearing, the trial judge was not required to make a finding of
fact on that issue, and Alexander is inapposite. Therefore,
we must determine whether a challenge to an attorney's
authority to settle a case raised in a postjudgment motion,
requires the trial court to conduct a hearing and make a
finding of fact as to whether the attorney was authorized to
settle the claim. We hold that it does.
In Warner v. Pony Express Courier Corp., supra, the
1060407
22
attorneys met in the trial judge's chambers to discuss the
possibility
of
settling
Warner's
claim. During
the settlement
negotiations, Warner's attorney represented that Warner would
accept $7,500 as a settlement for all demands. That
settlement offer was ultimately accepted, and the trial court
dismissed Warner's action with prejudice. Warner moved the
trial court to set aside the dismissal, arguing that he was
unaware of the settlement and that he would not have agreed to
its terms. Warner, 675 So. 2d at 1319. The Court of Civil
Appeals cited Jones v. Blanton, 644 So. 2d 882 (Ala. 1994),
and Jones v. Stedman, 595 So. 2d 1355 (Ala. 1992), for the
rule that "if a party is present when a settlement agreement
is announced by counsel in open court and the party fails to
object to the settlement, the trial court is warranted in
concluding that counsel has the apparent authority to settle
the dispute." Warner, 675 So. 2d at 1320. The Court of Civil
Appeals concluded, however, that there was insufficient
evidence that Warner's attorney had settlement authority
because the trial court relied on an agreement between the
attorneys when it dismissed the claims, and there was "no
indication in the record ... that Warner was present during
1060407
23
the settlement discussion in chambers." Warner, 675 So. 2d at
1321. The Court of Civil Appeals, therefore, reversed the
trial court's order denying the motion to vacate its dismissal
and remanded the case to the trial court with instructions "to
conduct a hearing to determine whether, at the time the
settlement was stated to the court and the dismissal was
entered, Warner's attorney was authorized to settle Warner's
claims for $7500." Warner, 675 So. 2d at 1321.
In this case, neither J.K. nor P.K. was present at the
settlement negotiations or at the enforceability hearing.
Instead, the trial court relied on an agreement between
counsel when it found that the settlement agreement was
enforceable. Although the trial court was apparently not
faced with the question whether J.K. had authorized J.K. and
P.K.'s attorney to settle the case, the trial court was
presented with that precise question when J.K. and P.K. moved
the trial court to set aside or to vacate the dismissal of
their claims against UMS-Wright. At that point, the trial
court should have held a hearing to determine whether J.K. had
authorized J.K. and P.K.'s attorney to settle the case. See
Roberson, 842 So. 2d at 713 (holding that "the trial court
1060407
24
[exceeded] its discretion in failing to hold a hearing on the
issue whether [counsel] had the authority to enter into the
stipulation agreement on behalf of Roberson" when Roberson
raised the issue of his attorney's authority to settle in a
motion for a new trial); see also, Garabedian v. Allstates
Eng'g Co., 811 F.2d 802, 804 (3d Cir. 1987) (stating that the
district court erred in denying the motion to vacate because
"[t]he district court should have held a hearing to determine
whether Garabedian had indeed authorized Di Pietro to settle
on
the
terms
set
forth
in
the
proposed
settlement
agreement."); Greater Kansas City Laborers Pension Fund v.
Paramount Indus., Inc., 829 F.2d 644, 646 (8th Cir. 1987)
(holding that the trial court "erred in summarily denying the
motion [to vacate the judgment] without any type of
evidentiary hearing" after the plaintiffs argued that the
attorney had agreed to the settlement without their consent).
Because we hold that the trial court erred in denying the
motion to set aside or to vacate its dismissal of J.K. and
P.K.'s claims without first holding a hearing to make a
finding of fact as to whether J.K. had authorized J.K. and
P.K.'s attorney to settle the case, we reverse that aspect of
1060407
Because we remand this case with instructions for the
8
trial court to conduct a hearing to resolve whether J.K. and
P.K.'s attorney was authorized to settle the case, we do not
reach the remaining issues raised in this appeal.
25
the trial court's judgment and remand this case with
instructions that it conduct such a hearing and make an
express finding.
Conclusion
We affirm that portion of the trial court's judgment
dismissing the claims against the members of the board of
trustees. We reverse the trial court's judgment denying J.K.
and P.K.'s motion to set aside or vacate the dismissal of
their remaining claims as to all other defendants, and we
remand this case for the trial court to conduct a hearing to
determine whether
J.K. had
authorized
J.K.
and P.K.'s attorney
to settle the case.8
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH
INSTRUCTIONS.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Parker,
and Murdock, JJ., concur.
Bolin, J., concurs in part and dissents in part.
1060407
26
BOLIN, Justice (concurring in part and dissenting in part).
I agree with that portion of the main opinion that holds
that the claims against the board of trustees of UMS-Wright
Preparatory School were properly dismissed. However, I
believe that J.K. and P.K. entered into a binding settlement
agreement; therefore, I dissent from that portion of the main
opinion reversing the trial court's order denying J.K. and
P.K.'s motion to set aside the dismissal of their remaining
claims and remanding the case for a hearing. | September 19, 2008 |
708a86f2-16eb-4fa8-9451-c0894237ee96 | Ex parte Macon County Greyhound Park, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Sherry Knowles v. Macon County Greyhound Park, Inc.) | N/A | 1070798 | Alabama | Alabama Supreme Court | rel: 08/15/2008
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
_________________________
1070798
_________________________
Ex parte Macon County Greyhound Park, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Sherry Knowles
v.
Macon County Greyhound Park, Inc.)
(Macon Circuit Court, CV-06-99)
WOODALL, Justice.
Macon County Greyhound Park, Inc. ("MCGP"), petitions
this Court for a writ of mandamus directing the Macon Circuit
1070798
2
Court to vacate an order compelling MCGP to produce statements
from two of its employees in an action filed against it by
Sherry Knowles. We grant the petition and issue the writ.
MCGP operates a gaming facility known as VictoryLand,
where Knowles is employed. On May 2, 2006, Knowles was
playing an electronic bingo game at VictoryLand. Knowles
alleges that while playing the game she hit a jackpot on the
machine worth $41,800,000. According to her, the machine did
not appear to be malfunctioning when the jackpot was
indicated.
Shortly after the apparent jackpot, James Graham and
Chris Fogarty, MCGP employees, approached Knowles. She says
that they informed her that the jackpot was "not a valid win,"
because, according to them, the machine had "malfunctioned."
The machine was "cleared," and Knowles continued to play the
same machine. Within a few minutes, she won a jackpot of
$2,505, which MCGP paid. Knowles made no complaint concerning
the earlier apparent jackpot and MCGP's failure to pay the
winnings, and the other employees prepared no report of the
event or their response to it.
1070798
The purported jackpot actually occurred on May 2, 2006,
1
one week after April 25, 2006. However, neither party makes
any issue of the discrepancy in the attorney's letter
concerning the date.
3
On May 12, 2006, MCGP received a letter from an attorney
representing Knowles. The letter stated in its entirety:
"Please be advised that I represent Sherry
Knowles. Please preserve all evidence relating to
her winnings on or about April 24, 2006 or April 25,
2006.
This would include video surveillance,
[1]
evidence from computer memory and any other evidence
of any kind. Also, we ask that there be no action
undertaken on the machine in question that would
alter or destroy any record of events occurring on
April 24th or April 25th."
The letter was seen that same day by Stanley Hubbard, the
gaming director at VictoryLand. He, at that time, directed
Graham and Fogarty to prepare written statements concerning
their knowledge of the May 2 events involving Knowles. The
employees prepared the statements on "incident report" forms
and submitted them to Hubbard.
On May 16, 2006, Knowles sued MCGP. In substance, she
claimed that she had been wrongfully deprived of the jackpot
win of $41,800,000 and that she is entitled to recover
compensatory and punitive damages. During discovery, Knowles
learned of the statements prepared by Graham and Fogarty. She
requested copies of those statements, but MCGP objected to
1070798
4
their production, arguing that the statements were prepared in
anticipation of litigation and, therefore, that they qualify
as work-product. However, the trial court ordered the
production of the statements, and MCGP then petitioned this
Court for relief.
"The order challenged in this case involving alleged work
product ... is reviewable [by a petition for a writ of
mandamus]." Ex parte Meadowbrook Ins. Group, Inc., [Ms.
1061493, December 21, 2007] ___ So. 2d ___, ___ (Ala.
2007). However, "'this Court will not reverse a trial court's
ruling on a discovery issue unless the trial court has clearly
exceeded its discretion.'" Id. at ___ (quoting Ex parte Ocwen
Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala. 2003)).
MCGP insists that "the employee statements here are
protected from disclosure by the work-product privilege, as
they were prepared in anticipation of litigation." Petition,
at 19-20. Knowles, on the other hand, argues that MCGP "has
failed to carry its burden of establishing that the
[statements] were done in anticipation of litigation."
Knowles's brief, at 19. We agree with MCGP.
1070798
5
"Documents and tangible things otherwise discoverable,
which are prepared in anticipation of litigation or trial by
or for another party or by or for that other party's
representative, are protected as work product and are not
otherwise discoverable. See Rule 26(b)(3), Ala. R. Civ. P."
Ex parte Flowers, [Ms. 1061201, March 28, 2008] ___ So. 2d
___, ___ (Ala. 2008) (footnote omitted). In this case, MCGP
objected to discovery, claiming that Graham's and Fogarty's
statements are work-product, and Knowles sought an order
compelling their production. At that time, MCGP was required
to make an evidentiary showing of the elements of the work-
product exception. See Meadowbrook, ___ So. 2d at ___. Those
elements are "'"(1)[that] the materials sought to be protected
are documents or tangible things; (2) [that] they were
prepared in anticipation of litigation or for trial; and (3)
[that]
they
were
prepared
by
or
for
a
party
or
a
representative of that party."'" Id. at ___ (quoting Johnson
v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000)). Statements
of witnesses taken in anticipation of litigation are protected
by Rule 26(b)(3), Ala. R. Civ. P. Ex parte Norfolk Southern
Ry., 897 So. 2d 290, 292-95 (Ala. 2004). "Of course, the
1070798
6
involvement of an attorney as the person taking the statement
is not a prerequisite to the qualification of the statement as
work-product." Id. at 294. However, it must be shown that
"it was reasonable for the [objecting party] to [assume], in
light of the circumstances [existing when the statements were
taken], that litigation could be expected." Ex parte Alabama
Dep't of Youth Servs., 927 So. 2d 805, 808 (Ala. 2005).
In support of its work-product claim, MCGP submitted an
affidavit from Stanley Hubbard, the management employee who
directed Graham and Fogarty to prepare their statements
regarding the events of May 2. According to Hubbard, on May
2, Graham telephoned him "and informed [him] that the credit
meter on a machine being played by Sherry Knowles was rolling
up far in excess of the credits which can be won on that
machine." Hubbard "instructed ... Graham to notify the
machine vendor technician." He did not request that any
statements be prepared concerning the incident. According to
Hubbard, Knowles made no complaint regarding the events of May
2, and, "[i]f a patron does not make a complaint, [MCGP]
employees do not complete an 'incident report' in the normal
course of business."
1070798
7
Hubbard's affidavit indicates that his perception of the
situation changed on May 12 when he saw the letter from
Knowles's attorney. He says that after he saw the letter he
"believed that [Knowles] was about to file a lawsuit" and
"expect[ed] a lawsuit to be imminent." On that same date, he
instructed Graham and Fogarty to prepare the statements at
issue, "based upon [his] belief that ... Knowles was about to
file a lawsuit against VictoryLand." In light of the
significant amount of the purported jackpot, as well as the
attorney's request that "all evidence" be preserved, it was
certainly reasonable for Hubbard to conclude that litigation
could be expected. Consequently, MCGP's claim that the
statements are work-product is well-founded.
Knowles characterizes her attorney's letter as "a
nonthreatening
letter
requesting
nothing
more
than
preservation
of
information relative to her jackpot."
Knowles's brief, at 6. According to Knowles, the letter
"offered no threat of litigation." Id. at 17. Presumably,
she would have this Court hold that it was unreasonable for
Hubbard to conclude that she was planning to institute legal
action regarding "her jackpot." However, such a holding would
1070798
8
be untenable. As Hubbard reasonably concluded, legal action
was likely, and, in fact, a complaint was filed only four days
after the letter was received.
Knowles argues that this Court's decision in Ex parte
Cryer, 814 So. 2d 239 (Ala. 2001), supports her argument that
the employees' statements are not work-product. In Cryer, we
held that a defendant in a medical-malpractice action "ha[d]
not satisfied her burden of establishing that her notes
[concerning the treatment of her patients] were prepared in
anticipation of litigation." 814 So. 2d at 248. However,
unlike the situation in this case, when the doctor in Cryer
"made her notes ..., [she] did not know that [the plaintiffs]
had hired an attorney." 814 So. 2d at 247. Although the
plaintiffs' attorney had written a letter requesting medical
records, the doctor's affidavit, unlike Hubbard's affidavit,
did not aver that the doctor was aware of the letter when she
prepared her notes. Stated simply, MCGP carried its burden of
proof through an adequate affidavit, while the defendant in
Cryer did not.
"Even if the work-product privilege applies, Rule
26(b)(3), Ala. R. Civ. P., recognizes an exception when the
1070798
9
party requesting the material can show substantial need
coupled with undue hardship." Ex parte Norfolk Southern Ry.,
897 So. 2d at 295. However, Knowles does not argue that this
exception applies here. Indeed, she has already deposed James
Graham and, when MCGP filed its petition for a writ of
mandamus, she had scheduled the deposition of Chris Fogarty.
For the foregoing reasons, we hold that the trial court
clearly exceeded its discretion when it ordered the production
of the written statements prepared by Graham and Fogarty at
Hubbard's request. MCGP is clearly entitled to an order
directing the trial court to vacate its discovery order.
Thus, we grant the petition and issue the writ.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and See, Smith, and Parker, JJ., concur. | August 15, 2008 |
77274f44-19b8-4df2-970f-7c960e72734b | Joe Harrison, as executor of the estate of Wyatt Harrison, deceased v. The Alabama Forever Wild Land Trust | N/A | 1070768 | 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
____________________
1070768
____________________
Joe Harrison, as executor of the estate of Wyatt Harrison,
deceased
v.
The Alabama Forever Wild Land Trust
Appeal from Colbert Circuit Court
(CV-05-519)
STUART, Justice.
Joe Harrison, as executor of the estate of Wyatt
Harrison, deceased, sued the Alabama Forever Wild Land Trust
1070768
The other named defendants included the property at
1
issue; "all other persons claiming any present, future,
contingent, remainder, reversion or other interest in said
land"; and the tax revenue commissioner of Colbert County,
Bill Thompson. According to the Trust Fund's appellate brief,
the revenue commissioner has never appeared in this action and
has never filed a claim to the property.
The Trust Fund was established by Amendment No. 543 to
2
the Alabama Constitution of 1901, ratified on February 2,
1993, "for the purpose of identifying, acquiring, managing,
protecting and preserving natural lands and waters that are of
environmental or recreational importance." Art. XI, § 219.07,
Ala. Const. 1901 (Off. Recomp.).
2
("the Trust Fund") and others pursuant to § 6-6-540, Ala.
1
Code 1975, seeking to quiet title to an uninhabited 160-acre
parcel of land in Colbert County ("the property") claimed by
both the Harrison family and the Trust Fund. The trial court
2
entered a summary judgment quieting title to the property in
favor of the Trust Fund, and Harrison now appeals. We affirm.
I.
The property was originally granted to Greenberry
Williams, Sr., by the United States government in 1848. At
that time, the property was located in Franklin County;
however, the property was located in that part of Franklin
County that became Colbert County when the legislature created
Colbert County in 1870.
1070768
The family kept a copy of the 1856 deed; thus, that
3
record exists even though most other pre-1890 records were
destroyed in the fire.
3
In 1856, Greenberry Williams, Sr., conveyed the property
to his son, Ausker Williams, by deed. Thereafter, there is a
break in the chain of title because the Franklin County
courthouse was destroyed by fire in 1890. The next
3
instrument involving the property was not recorded until 1907,
when a deed was recorded in Colbert County by which Greenberry
Williams, Jr. –– son of Greenberry Williams, Sr., and brother
to Ausker Williams –– purported to convey the property to J.T.
Crotts and P.B. Worley. The property thereafter was owned by
various individuals and timber companies, with each conveyance
recorded in Colbert County, before the land was ultimately
purchased by the Trust Fund in 2002. Since that time the
property has been managed by the Alabama Department of
Conservation and Natural Resources.
Joe Harrison lays claim to the property via the chain of
title involving Ausker Williams. Harrison, a descendant of
Greenberry Williams, Jr., disputes the validity of the 1907
deed purportedly executed by his great-great-grandfather and
argues that the property was instead passed down through the
1070768
4
Ausker Williams family pursuant to the 1856 deed by which
Greenberry Williams, Sr., conveyed the property to Ausker
Williams. In 1953, that 1856 deed was refiled in Colbert
County by Mary Waddell Harrison –– the granddaughter of
Greenberry Williams, Jr., and the grandmother of Joe Harrison.
Subsequently, between 1985 and 1987, the living descendants of
Ausker Williams, all of whom appear to have left Alabama,
executed quitclaim deeds conveying their respective interests
in the property to Mary Waddell Harrison. Mary Waddell
Harrison then devised the property to her son Wyatt Harrison
–– the deceased father of Joe Harrison –– when she died in
1990.
On December 23, 2005, Harrison filed a complaint in the
Colbert Circuit Court seeking to quiet title to the property.
The Trust Fund answered the complaint, and both Harrison and
the Trust Fund thereafter filed summary-judgment motions
asking the trial court to quiet title to the property in their
favor. The trial court initially denied both motions;
however, after conducting additional discovery, the parties
filed renewed motions for summary judgment and, on January 14,
2008, the trial court entered a summary judgment in favor of
1070768
5
the Trust Fund without specifying the grounds for its ruling.
On February 22, 2008, Harrison 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.
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.
Section 6-6-540, Ala. Code 1975, provides:
"When any person is in peaceable possession of
lands, whether actual or constructive, claiming to
own the same, in his own right or as personal
representative or guardian, and his title thereto,
or any part thereof, is denied or disputed or any
1070768
6
other person claims or is reputed to own the same,
any part thereof, or any interest therein or to hold
any lien or encumbrance thereon and no action is
pending to enforce or test the validity of such
title, claim, or encumbrance, such person or his
personal
representative
or
guardian,
so
in
possession, may commence an action to settle the
title to such lands and to clear up all doubts or
disputes concerning the same."
Pursuant to this statute, Harrison argues that he presented
substantial evidence indicating that he and his family were in
peaceable possession of the property and that any evidence the
Trust Fund presented to the contrary merely created a genuine
issue of material fact for the fact-finder to decide. See,
e.g., Adams v. Bethany Church, 380 So. 2d 788, 791 (Ala. 1980)
("What constitutes peaceable possession will vary as it is a
determination based on the facts in each case." (citing
Williams v. Romano, 289 Ala. 190, 266 So. 2d 750 (1972))).
The Trust Fund, however, argues that the undisputed facts
establish that the Harrison family was not in peaceable
possession of the property; rather, it was the Trust Fund that
was in peaceable possession of the property at the time this
action was filed. Additionally, the Trust Fund argues that
Harrison's action is barred by the rule of repose. We agree
that the rule of repose bars Harrison's action.
1070768
7
In Boshell v. Keith, 418 So. 2d 89, 91-92 (Ala. 1982),
this Court summarized the rule of repose as follows:
"Since McArthur v. Carrie's Admr., 32 Ala. 75
(1858), this State has followed a rule of repose, or
rule of prescription, of 20 years. This principle
of repose or prescription is similar to a statute of
limitations, but not dependent upon one, and broader
in scope. Scott v. Scott, 202 Ala. 244, 80 So. 82
(1918); Patterson v. Weaver, 216 Ala. 686, 114 So.
301 (1927). It is a doctrine that operates in
addition to laches. Unlike laches, however, the
only element of the rule of repose is time. It is
not affected by the circumstances of the situation,
by personal disabilities, or by whether prejudice
has resulted or evidence obscured. Wilkerson v.
Wilkerson, 230 Ala. 567, 161 So. 820 (1935); 30A
C.J.S., Equity § 113 (1965), at p. 33. It operates
as an absolute bar to claims that are unasserted for
20 years. Roach v. Cox, 160 Ala. 425, 49 So. 578
(1909). The rationale for this absolute bar to such
actions was set forth in Snodgrass v. Snodgrass, 176
Ala. 276, 58 So. 201 (1912), as follows:
"'As a matter of public policy, and
for the repose of society, it has long been
the settled policy of this state, as of
others, that antiquated demands will not be
considered by the courts, and that, without
regard to any statute of limitations, there
must
be
a
time
beyond
which
human
transactions will not be inquired into. It
is settled that, after a period of 20
years, without any payment, settlement, or
other recognition of liability, mortgages
and liens will be presumed to have been
paid, settlements will be presumed to have
been made by administrators, trustees,
agents,
and
other
persons
occupying
fiduciary positions. It is necessary for
the peace and security of society that
1070768
8
there should be an end of litigation, and
it is inequitable to allow those who have
slept upon their rights for a period of 20
years, after they might have demanded an
accounting, and after, as is generally the
case, the memory of transactions has faded
and parties and witnesses passed away, to
demand an accounting. The consensus of
opinion in the present day is that such
presumption is conclusive, and the period
of 20 years, without some distinct act in
recognition of the trust, a complete bar;
and, as said in an early case, "the
presumption rests not only on the want of
diligence in asserting rights, but on the
higher ground that it is necessary to
suppress frauds, to avoid long dormant
claims, which, it has been said, have often
more of cruelty than of justice in them,
that it conduces to peace of society and
the happiness of families, 'and relieves
courts from the necessity of adjudicating
rights so obscured by the lapse of time and
the accidents of life that the attainment
of
truth
and
justice
is
next
to
impossible.'" –- Harrison et al. v.
Heflin, Adm'r, et al., 54 Ala. 552, 563,
564[(1875)]; Greenlees' Adm'r v. Greenlees
et al., 62 Ala. 330 [(1878)]; Nettles v.
Nettles, 67 Ala. 599, 602 [(1880)]; Garrett
v. Garrett, 69 Ala. 429, 430 [(1881)];
Semple v. Glenn, 91 Ala. 245, 260, 6 South.
46, 9 South. 265, 24 Am. St. Rep. 929
[(1891)]; Roach v. Cox, 160 Ala. 425, 427,
49 South. 578, 135 Am. St. Rep. 107
[(1909)].'
"Snodgrass, at 176 Ala. 280, 281, 58 So. 201."
(Emphasis omitted.)
1070768
We note, however, that "[l]ack of notice is not
4
sufficient to avert the application of the doctrine [of
repose]." Ballenger v. Liberty Nat'l Life Ins. Co., 271 Ala.
318, 322, 123 So. 2d 166, 169 (1960).
9
The Trust Fund claims ownership of the property by way of
the 1907 deed whereby Greenberry Williams, Jr., transferred
the property to Crotts and Worley. That deed was properly
recorded in Colbert County, and Harrison's ancestors were
accordingly on notice as of that date that another party
claimed an interest in the property. See § 35-4-63, Ala. Code
1975 ("The recording in the proper office of any conveyance of
property or other instrument which may be legally admitted to
record operates as a notice of the contents of such conveyance
or instrument without any acknowledgment or probate thereof as
required by law."). Nevertheless, none of those ancestors
4
took any steps to contest the 1907 deed. Rather, it was not
until 2005 –– 98 years after the 1907 deed was recorded ––
that Harrison initiated the present action to quiet title to
the property. During those 98 years in which Harrison and his
ancestors "slept upon their rights" and took no action to
quiet title to the property, "the memory of transactions ...
faded and parties and witnesses passed away." Boshell, 418
So. 2d at 91 (emphasis omitted). Indeed, Harrison has raised
1070768
10
the possibility that the 1907 deed was a forgery; however, the
parties
that
might
have
personal
knowledge
of
the
circumstances surrounding the execution and filing of that
deed have almost certainly all passed away. These are
precisely the facts for which the rule of repose was
fashioned, and that rule accordingly serves as an absolute bar
to Harrison's action.
Nevertheless, Harrison argues that the rule of repose
should not apply to his case for two reasons. First, Harrison
argues that the Trust Fund waived its right to rely on the
rule of repose because it failed to assert the rule as an
affirmative defense in its initial answer to the complaint and
because the trial court thereafter never explicitly granted
the Trust Fund leave to file its amended answer, in which it
asserted the rule of repose as a defense. See Ex parte
Liberty Nat'l Life Ins. Co., 858 So. 2d 950, 953 (Ala. 2003)
("Typically, if a party fails to plead an affirmative defense,
that defense is deemed to have been waived. However, there
are exceptions to this rule, one of which is that an
affirmative defense can be revived if a party is allowed to
amend his pleading to add the defense." (citations omitted)).
1070768
11
The Trust Fund responds by arguing, first, that Harrison has
impermissibly raised this argument for the first time in his
reply brief on appeal and, second, that the trial court in
fact implicitly granted the Trust Fund leave to file its
amended answer by affirmatively denying Harrison's motion to
strike the amended answer. Setting aside the issue whether
Harrison's argument on this point is timely, we agree that the
trial court implicitly granted the Trust Fund leave to amend
its answer to include the rule-of-repose defense.
On January 12, 2007, the trial court entered a scheduling
order setting the trial date for March 26, 2007, and stating
that "no causes of action, defenses, or parties may be added
after forty-two (42) days before trial." Subsequently, but
without first seeking leave from the trial court, the Trust
Fund filed an amended answer asserting the rule of repose as
a defense. That amended answer was filed on February 2, 2007
–– 52 days before trial and thus within the deadline set by
the trial court. On May 21, 2007, Harrison moved to strike
the Trust Fund's amended answer and, on August 7, 2007, the
trial court affirmatively denied that motion. By denying
Harrison's motion to strike, the trial court effectively held
1070768
12
that the amended answer was properly before the court and part
of the record, even though it did not explicitly issue an
order so stating. See Hilb, Rogal & Hamilton Co. v.
Beiersdoerfer, [Ms. 1060522, December 14, 2007] ___ So. 2d
___, ___ n. 2 (Ala. 2007) ("Although this Court's opinion in
[Beiersdoerfer v. Hilb, Rogal & Hamilton Co., 953 So. 2d 1196
(Ala. 2006),] stated that the trial court denied the
[appellants'] postjudgment motion for a JML, upon further
review of the orders of the trial court entered in 2002, we do
not find any order explicitly denying a motion for a JML after
the jury returned its verdict. Nevertheless, we conclude that
the trial court implicitly denied the postverdict motion for
a JML when it granted the [appellants'] motion for a new
trial. The order granting a new trial is inconsistent with
the view that the motion for a JML was meritorious."). The
rule of repose was thus properly asserted, and the Trust Fund
is not procedurally barred from relying on it.
Harrison next argues that the rule of repose should not
operate to bar his action because, he says, this Court has
recognized an exception to the rule of repose when the party
asserting that defense has expressly recognized the opposing
1070768
13
party's claimed right. See, e.g., Boshell, 418 So. 2d at 92
(stating that "[t]he only circumstance that will stay the
running of the 20-year period of repose is a recognition of
the existence of the claimant's right by the party defending
against the claim"). Harrison argues that the Trust Fund, a
State entity, cannot dispute that it knew of his family's
claim to the property, inasmuch as his family has continually
remitted ad valorem taxes on the property to the State since
the 1950s. Therefore, Harrison argues, the Trust Fund should
be barred from asserting the rule of repose because, he says,
the State was aware of his family's claim to the property.
The Trust Fund responds by arguing that Harrison is confusing
notice of a "claim" with recognition of a "right." We agree.
In Eatman v. Goodson, 262 Ala. 242, 248-49, 78 So. 2d 625,
630-31 (1954), this Court clarified that distinction, stating:
"In order to avert the application of the
doctrine appellees contend that the rule of repose
rests on the failure of the claimant to assert
rights
adverse
to
his
opponent
during
the
prescriptive period and that therefore the effort on
their part to plead the setoff in the case of Eatman
v. Goodson, 36 Ala. App. 360, 58 So. 2d 129
[(1951)], certiorari denied, 257 Ala. 239, 58 So. 2d
133 [(1952)], in the proceeding of scire facias to
revive the judgments in 1952 had the effect of
tolling the prescriptive period even though the
setoff in that proceeding was denied. This is not
1070768
14
the law. There are intimations in our cases to the
effect that the principle of prescription is
affected by whether or not the claimant allows
twenty years to elapse without taking any steps to
compel a settlement or assert the right. ... Many
of [these] cases were dealing with laches where, of
course, lack of notice and rights unasserted enter
into a consideration of that principle.
"In prescription,
however,
the
mere
assertion
of
a claim does not stop the running of the period. In
order to do so, a right asserted during the twenty
years must have eventuated successfully. For
analogy see Staten v. Shumate, 243 Ala. 261, 9 So.2d
751 [(1942)].
"As was pointed out in Snodgrass v. Snodgrass,
[176 Ala. 276, 58 So. 201 (1912),] supra, quoting
from Harrison v. Heflin, 54 Ala. 552, 563-564
[(1875)], the conclusive presumption of payment or
satisfaction '"rests not only on the want of
diligence in asserting rights, but on the higher
ground that it is necessary to suppress frauds, to
avoid long dormant claims, which, it has been said,
have often more of cruelty than of justice in them
...."'
"As was stated in Hendley v. First Nat. Bank of
Huntsville, 234 Ala. 535, 537, 176 So. 348, 349
[(1937)], Id., 235 Ala. 664, 180 So. 667, '[t]he
basic principle of prescription is not the mere
lapse of time, but the lapse of time within which no
recognition of a subsisting and continuing right or
obligation appears.'"
(Final emphasis added.) Thus, the mere fact that the Trust
Fund, and/or its predecessors in title, may have known that
Harrison and his family laid claim to the property is
insufficient to stay the running of the 20-year period.
1070768
The fact that Harrison's family paid, and the State
5
accepted, property taxes is not tantamount to a recognition of
their right to the property. Tax records submitted by the
Trust Fund show that the Trust Fund's predecessors in title
(the Trust Fund is exempt from paying property taxes) paid
property taxes on the property both before and after
Harrison's family began paying a redundant assessment in the
1950s. To accept Harrison's argument would require us to hold
that the State simultaneously recognized ownership of the
property by both Harrison's family and the Trust Fund's
predecessors in title –– an impossibility.
Moreover, even if we did agree that the State, and
therefore the Trust Fund, recognized Harrison's family's right
to the property by accepting their payment of property taxes,
Harrison has not claimed that the Trust Fund's predecessors in
title also recognized his family's right to the property so as
to toll the 20-year prescriptive period that began to run in
15
Indeed, the Trust Fund acknowledges that its predecessors in
title became aware of Mary Waddell Harrison's claim to the
property around 1953 at the latest, after she refiled the 1856
deed. However, rather than recognize her claimed rights to
the property, the Trust Fund's predecessor in title filed
affidavits contesting Mary Waddell Harrison's claim to the
property. There is no evidence in the record indicating that
the Trust Fund or its predecessors have ever recognized
Harrison's and his family's claim to the property as
legitimate or enforceable; to the contrary, the evidence
indicates they have always claimed exclusive ownership of the
property for themselves. The cited exception to the rule of
5
1070768
1907 and thus presumably ran in 1927.
16
repose accordingly does not apply, and that rule now bars
Harrison's claim.
IV.
In 1907, the Trust Fund's predecessors in title, Crotts
and Worley, formally recorded a deed whereby they took
ownership of the property. Possession of the property
subsequently changed hands several times –– with each new deed
also being recorded –– until the Trust Fund obtained the
property in 2002. Harrison claims that he and his family were
the rightful owners of the property throughout this period,
but it was not until he filed the instant action in 2005 that
any member of the family formally challenged the claim of the
Trust Fund or its predecessors in title to the property.
However, because they failed to assert their rights during the
preceding 98 years, those rights have been lost, and the rule
of repose bars Harrison's quiet-title action. The summary
judgment entered by the trial court quieting title to the
property in favor of the Trust Fund was therefore proper and
is hereby affirmed.
AFFIRMED.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur. | August 22, 2008 |
c6396836-3016-40d7-8a00-8262a092444e | Ex parte A.M.B. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: A.M.B. v. R.B.B. and P.B.) | N/A | 1061455 | 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
____________________
1061455
____________________
Ex parte A.M.B.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: A.M.B.
v.
R.B.B. and P.B.)
(St. Clair Juvenile Court, JU-06-14;
Court of Civil Appeals, 2050826)
MURDOCK, Justice.
1061455
2
We granted A.M.B.'s petition for a writ of certiorari to
review the Court of Civil Appeals' affirmance of a May 2006
judgment entered by the St. Clair Juvenile Court. See A.M.B.
v. R.B.B., [Ms. 2050826, April 13, 2007] __ So. 2d __ (Ala.
Civ. App. 2007). The May 2006 judgment declared that A.M.B.
was an unfit parent, and it awarded custody of A.M.B.'s
daughter, H.S.B., to R.B.B. and P.B. ("the paternal
grandparents"). We now quash the writ, noting that this case
involved ore tenus proceedings and that the following summary
reflects those factual findings the trial court made or could
have made in support of its judgment. See Transamerica
Commercial Fin. Corp. v. AmSouth Bank, 608 So. 2d 375, 378
(Ala. 1992); see also Ex parte Patronas, 693 So. 2d 473, 475
(Ala. 1997) ("'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
1061455
In
her brief, A.M.B.
presents
a compelling version
of
the
1
facts in support of her arguments. A review of the record,
however, reveals that A.M.B.'s representation of the facts
does not accurately reflect the totality of the evidence
presented to the juvenile court.
Between the date of H.S.B.'s birth and the date of the
2
trial, A.M.B. worked at a Piggly Wiggly grocery store for "a
month or two," and she babysat one summer. A.M.B. began
working as a cashier at two grocery stores two or three months
before the trial.
3
be drawn from that evidence, and to decide the issue of
custody.").
1
Facts and Procedural History
The record supports the facts that follow. A.M.B., who
was born in June 1986, gave birth to H.S.B. in March 2003.
K.S.B., who was born in April 1979, is the father of H.S.B.
K.S.B. and A.M.B. have never been married; they have had an
"on-again-off-again" relationship.
A.M.B. dropped out of school when she was in the 10th
grade. She was employed at a McDonald's fast-food restaurant
when H.S.B. was born, but she was unemployed for most of the
time between H.S.B.'s birth and the March 2006 trial in the
present case.
2
After H.S.B.'s birth, A.M.B. and H.S.B. resided at
various times with A.M.B.'s mother, A.M.B.'s sister, and the
1061455
A.M.B. alleged
that the
signature on her consent form
was
3
forged, and she testified that she had not met with the
attorney who prepared the adoption petition and consent form
or the notary public who allegedly notarized her signature.
However, Linda C. Venable, the notary public who notarized
A.M.B.'s signature, and Jimmy Ray Calvert, the attorney who
prepared and filed the adoption petition and A.M.B.'s consent
form, testified that A.M.B. executed the consent form in
Calvert's
office
after
Calvert
had
discussed
the
adoption
with
A.M.B. Because the foregoing conflicting evidence was
presented in an ore tenus proceeding, we must conclude that
the
trial
court
rejected
A.M.B.'s
testimony.
See
Transamerica, supra; see also Flint Constr. Co. v. Hall, 904
So. 2d 236, 250 (Ala. 2004)("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." (citations
omitted)). We also note that A.M.B.'s mother and her sister
attempted
to
corroborate
various
aspects
of
A.M.B.'s
testimony
4
paternal grandparents. In the fall of 2004, A.M.B. requested
that the paternal grandfather adopt H.S.B. "or she would find
somebody
that would."
(According
to
the paternal grandfather,
it was the third adoption request A.M.B. had made to him.) In
November 2004, the paternal grandparents filed an adoption
petition in the St. Clair Probate Court. Along with their
petition, the paternal grandparents submitted a notarized
"Consent of Minor for Adoption" that had been executed by
A.M.B. and a similar consent that had been executed by K.S.B.;
the consents were dated October 29, 2004.
3
1061455
concerning the consent (either as to its execution or as to
when A.M.B. became aware of the adoption proceeding), which
testimony likewise placed doubt upon their credibility.
5
After the paternal grandparents filed their adoption
petition, the probate court entered an interlocutory judgment
of adoption. Because the paternal grandparents were related
to H.S.B., the court concluded that no pre-placement
investigation was necessary, see Ala. Code 1975, § 26-10A-28,
and it "grant[ed] custody of [H.S.B.] to [the paternal
grandparents,] ... hereby confer[ring] the responsibility of
the maintenance and support of the adoptee." The probate
court set the matter for a "dispositional hearing" to be held
on January 18, 2005. See Ala. Code 1975, § 26-10A-25.
In November 2004, after the entry of the interlocutory
judgment, A.M.B. was arrested for disorderly conduct at the
paternal grandparents' home after a dispute between her and
1061455
According to A.M.B., the dispute occurred because she
4
wanted to take H.S.B. with her, but K.S.B. refused to allow
her to do so. We note that A.M.B. later gave conflicting
testimony concerning where H.S.B. resided between the date of
her arrest in November 2004 and the January 2005 dispositional
hearing. On the one hand, she testified that H.S.B. resided
with her between November 2004 and January 2005; on the other
hand, she testified that she visited H.S.B. "maybe twice a
week" at the paternal grandparents' home during that same
period.
A.M.B. suffered serious injuries that required surgery
5
and
extended
rehabilitation.
At trial,
however,
her
testimony
concerning the extent of her injuries was inconsistent with
her medical records. For example, A.M.B. testified that she
was unconscious for a month after the incident, but her
medical records reflect that she was responsive to the medical
staff within a few days after her admission to the hospital on
January 16, 2005.
We also note that A.M.B. apparently had a "bad temper,"
and that, while in rehabilitation, she displayed immature
behavior. The hospital discharge summary states that during
A.M.B.'s
stay
at
the
rehabilitation
facility
she
"consistently
behav[ed] childlike.
...
She ... refused medication. [A.M.B.]
6
K.S.B. concerning H.S.B. A.M.B. was taken to jail and was
4
subsequently released.
On January 16, 2005, K.S.B. apparently forcefully removed
A.M.B. from a friend's home, violently beat her, and left her
unconscious in an abandoned mobile home. A.M.B. subsequently
was taken to the hospital, where she remained until February
28, 2005, when she was discharged for outpatient physical
therapy. K.S.B. was arrested and placed in jail; he remained
5
1061455
tend[ed] to throw tantrum[s] at times in both floor as well as
therapies. She smoked in her room on the day prior to
discharge and required confiscation by the nursing staff of
her lighter and cigarette."
A.M.B. explained this by stating that the paternal
6
grandparents told her that they would not let her visit with
H.S.B. unless she asked that the charges be dropped. She
admitted,
however,
that
the
paternal
grandparents
were
already
allowing her to visit with H.S.B. at the time.
7
in jail until August 2005, when he was released pending a
criminal trial on charges of kidnapping and attempted murder
resulting from
the incident
involving
A.M.B. Despite K.S.B.'s
attack on A.M.B., she and K.S.B. continued their "on-again-
off-again" relationship after his release from jail in August
2005. In fact, A.M.B. admitted that she asked that the
charges against K.S.B. be dropped. Also, according to the
6
paternal grandmother, A.M.B. requested that K.S.B. stay with
her while she was visiting with H.S.B.
The probate court conducted the scheduled dispositional
hearing in January 2005. Before the hearing, the paternal
grandparents informed their attorney that A.M.B. was in the
hospital. According to the paternal grandparents' attorney,
he did not convey that information to the probate court
because A.M.B. had already consented to the adoption and had
1061455
A.M.B. admitted that she did not see H.S.B. in February,
7
March, April, or May 2005. She stated that she did not
attempt to visit with H.S.B. because she was afraid of the
paternal grandparents. She later admitted, however, that the
paternal grandparents had never threatened her. Also,
K.S.B.'s presence was not an issue during that period because
he was in jail until August 2005. It appears that the
juvenile court disregarded A.M.B.'s testimony concerning the
reason she failed to attempt to visit with A.M.B. We note
that A.M.B.'s testimony as to her alleged fear of the paternal
grandparents is inconsistent with other testimony concerning
her relationship with the paternal grandparents and their
amenability to her visitation with H.S.B.
8
waived further notice of the adoption proceedings. After the
January 18, 2005, hearing, the probate court entered a final
judgment, granting the paternal grandparents' petition to
adopt H.S.B.
According to A.M.B., while she was in the hospital
recovering from the beating by K.S.B., she "discovered" that
the paternal grandparents had adopted H.S.B. While she was in
the hospital, A.M.B. also met with an attorney concerning the
adoption. It is undisputed that after her release from the
hospital, A.M.B. did not contact the paternal grandparents
concerning H.S.B. or attempt to visit her for several months.7
In July 2005, A.M.B. filed a motion to set aside the
January 2005 judgment of adoption on the ground that she had
not consented to H.S.B.'s adoption, see note 3, supra, and on
1061455
9
the ground that the probate court failed to appoint a guardian
ad litem to represent A.M.B., who was a minor in January 2005.
See Ala. Code 1975, § 26-10A-8(a)("Prior to a minor parent
giving consent a guardian ad litem must be appointed to
represent the interests of a minor parent whose consent is
required."). A.M.B. argued that the January 2005 judgment of
adoption
was void.
The
paternal
grandparents opposed
A.M.B.'s
petition.
In September 2005, at the request of the paternal
grandparents, the
St.
Clair
Probate Court transferred the
case
to the St. Clair Juvenile Court. Upon receipt of the case,
the juvenile court appointed a guardian ad litem to represent
H.S.B.'s interests; no guardian ad litem was appointed for
A.M.B., who was by then no longer a minor and had retained
counsel.
The paternal grandparents allowed A.M.B. to visit with
H.S.B. during the pendency of the juvenile court proceedings,
and the evidence would support a finding that, contrary to
A.M.B.'s
assertions,
the
paternal
grandparents
did
not
attempt
to keep her from visiting H.S.B. In September 2005, upon
A.M.B.'s request, the paternal grandparents agreed to a
1061455
10
regular visitation schedule. Thereafter, however, according
to the paternal grandfather, "[a] lot of times" A.M.B. did not
attend the scheduled visitation.
In December 2005, A.M.B. was arrested and charged with
domestic violence based on an incident involving her sister
that occurred in the presence of the sister's young children.
Specifically, A.M.B. was charged with harassment under Ala.
Code 1975, § 13A-11-8(a)(1)a,
a Class-C
misdemeanor
("A person
commits the crime of harassment if, with intent to harass,
annoy, or alarm another person, he or she ... [s]trikes,
shoves, kicks, or otherwise touches a person or subjects him
or her to physical contact."). A.M.B. pleaded guilty to the
charge. She was sentenced to 60 days in jail. That sentence
was suspended, and she was placed on probation for 12 months;
she was also fined $500.
In March 2006, the juvenile court conducted an ore tenus
proceeding. The paternal grandparents took the position at
the proceeding that the adoption should not be set aside, but
that if it was set aside, they should be awarded custody of
H.S.B. In April 2006, before the juvenile court entered its
judgment, the paternal grandparents also filed a petition
1061455
Although the paternal grandparents made an allegation of
8
dependency, the Department of Human Resources did not
participate in the proceeding, and no attempt appears to have
been made to require the Department's involvement.
11
alleging that H.S.B. was a dependent child "in that the
natural mother and natural father are unable to provide the
proper food, clothing, shelter, and parental care and control
necessary for the well being of [H.S.B.]." The petition was
8
filed under the same case number as the proceeding initiated
by A.M.B. to set aside H.S.B.'s adoption. A.M.B. filed a
motion to dismiss the paternal grandparents' dependency
petition, arguing, in part, that the issues "brought before
the Court ... are encompassed in the issues pending before the
Court and currently under the Court's advisement in the
adoption case." The juvenile court set the dependency
petition for a hearing. It is unclear, however, whether a
hearing was ever held on the petition.
Thereafter, on May 26, 2006, the juvenile court entered
a judgment acknowledging that the paternal grandparents had
filed a dependency petition, but stating that "all matters
involving custody of the minor [could] be determined in the
original proceeding." The juvenile court determined that
1061455
12
A.M.B.'s consent to the adoption was invalid, and it dismissed
the paternal grandparents' adoption petition. The court then
proceeded to declare that A.M.B. and K.S.B. were unfit
parents, and it awarded custody of H.S.B. to the paternal
grandparents, subject to A.M.B.'s right to "supervised
visitation with the minor child at all reasonable times and
places as shall be agreed to by [A.M.B.] and [the paternal
grandparents]." The order also required that K.S.B., who was
living with the paternal grandparents pending his trial on
criminal charges arising out of his beating of A.M.B., "shall
not reside nor have overnight visits with [H.S.B.], and his
visitation with [H.S.B.] shall be supervised by the [paternal
grandparents]." We note that, at trial, the paternal
grandparents stated that they would require K.S.B. to move
from their home if the juvenile court believed that that would
be appropriate.
A.M.B. filed a postjudgment motion, which was denied by
operation of law. She then appealed to the Court of Civil
Appeals, arguing that the juvenile court erred in finding her
to be an unfit parent and, alternatively, that, even if
custody remained with the paternal grandparents, it erred in
1061455
13
failing to set out a visitation schedule. The Court of Civil
Appeals affirmed the juvenile court's judgment as to custody,
specifically noting that the evidence supported the juvenile
court's custody award under the standard announced in Ex parte
Terry, 494 So. 2d 628, 632 (Ala. 1986). A.M.B., __ So. 2d at
__. The Court of Civil Appeals reversed the judgment as to
visitation because the juvenile court failed "to set forth a
specific visitation schedule so as to provide for reasonable
contact between [A.M.B.] and [H.S.B.]." __ So. 2d at __.
A.M.B. filed a petition for a writ of certiorari as to the
custody issue, which we granted.
Discussion of the Merits
A.M.B. contends that the juvenile court's custody award
is not supported by clear and convincing evidence of her
unfitness as a parent as required by Ex parte Terry, supra.
As to custody disputes between a parent and a nonparent, this
Court, in Ex parte Terry, adopted the standard announced in Ex
parte Berryhill, 410 So. 2d 416, 417 (Ala. 1982), requiring
"clear and convincing evidence that the natural [parent] is
either unfit or unsuited for the role of [parent]." This
Court further stated in Ex parte Terry that the right of a
1061455
A.M.B. testified that she intended for her and H.S.B. to
9
reside with her mother if she was awarded custody. A.M.B.
admitted, however, that she had repeatedly moved out of her
mother's home and her sister's home because she fought with
them.
It is not clear from the record whether the juvenile
10
court considered the custody presumptions that apply in cases
involving incidents of "domestic of family abuse." Ala. Code
14
natural parent to the custody of his or her child, as against
the right to custody of a nonparent, is
"'grounded in the common law concept that the
primary parental right of custody is in the best
interest and welfare of the child as a matter of
law. So strong is this presumption, absent a
showing of voluntary forfeiture of that right, that
it can be overcome only by a finding, supported by
competent evidence, that the parent seeking custody
is guilty of such misconduct or neglect to a degree
which renders that parent an unfit and improper
person to be entrusted with the care and upbringing
of the child in question.'"
494 So. 2d at 632 (quoting Ex parte Mathews, 428 So. 2d 58, 59
(Ala. 1983))(some emphasis omitted; emphasis added).
Citing various precedents that apply the Terry standard,
the mother argues that the factors relied upon by the Court of
Civil Appeals (specifically, she notes the evidence concerning
her changes in residence, her reliance upon family members
9
for support, her inconsistent work history, the December 2005
domestic-violence charge filed against her by her sister,
her
10
1061455
1975, § 30-3-130 et seq. Harassment (§ 13A-11-8) is one of
the crimes that may give rise to "a rebuttable presumption by
the court that it is detrimental to the child and not in the
best interest of the child to be placed in sole custody, joint
legal custody, or joint physical custody with the perpetrator
of domestic or family violence." Ala. Code 1975, § 30-3-131.
A court must also consider, however, "what, if any, impact the
domestic violence had on the child." Id.
15
temper, her smoking habits, and her immature behavior) did not
"afford an adequate basis for favoring a non-parent over a
parent" for custody purposes. She concludes that the paternal
grandparents "failed to present any evidence that [A.M.B.]
either engaged in any misconduct concerning [H.S.B.] or
neglected her in any way." To say that A.M.B.'s conclusion in
this regard is an overstatement would be an understatement.
We agree with A.M.B. that, in the abstract and in a given
case, no one factor she notes or no combination of the factors
she notes might be sufficient to support a determination of
parental unfitness. For example, in the abstract, a parent's
reliance on others, particularly family, for support is not,
in and of itself, determinative of the parent's unfitness.
Indeed, in a particular case such reliance may indicate a
level of maturity and resourcefulness that is designed to
further the best interest of the child or children whose
1061455
16
custody is at issue. Likewise, demonstrations of immaturity,
or selfish decision-making, may not, in a particular case, be
sufficient to support a finding of unfitness. Based on the
conflicting evidence presented to the juvenile court in the
present case, however, and the ample evidence that lends
itself to the conclusion that A.M.B.'s testimony was not
credible in many respects and was disbelieved by the juvenile
court, such considerations avail A.M.B. nothing. In addition
to the other deficiencies in her behavior that are reflected
in the record and discussed above, we particularly note the
evidence concerning A.M.B.'s lack of effort to visit with her
child after A.M.B. left the hospital in February 2005 and her
numerous failures to attend scheduled visitation after she
filed the petition to set aside the adoption. See Ex parte
J.W.B., 933 So. 2d 1081, 1092 (Ala. 2005)("'We should not
equate the filing of "court papers" and the taking of legal
positions with the establishment of human relationships.'"),
reversing K.W.J. v. J.W.B., 933 So. 2d 1075 (Ala. Civ. App.
2005).
After carefully reviewing the record, and in light of the
presumption that attends a trial court's judgment in ore tenus
1061455
17
proceedings, we cannot conclude that the juvenile court's
judgment in the present case is unsupported by clear and
convincing evidence of unfitness. Accordingly, we quash the
writ.
WRIT QUASHED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, and
Parker, JJ., concur.
Bolin, J., dissents. | September 5, 2008 |
141c723f-3a0f-4416-88f9-2a2ee73694b8 | Raymond C. Bryan et al. v. Mike Hubbard and Gene Howard (Appeal | N/A | 1071590 | 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
____________________
1071590
____________________
Raymond C. Bryan et al.
v.
Mike Hubbard and Gene Howard
____________________
1071662
____________________
Gene Howard
v.
Raymond C. Bryan et al.
Appeals from Jefferson Circuit Court
(CV-08-902067)
1071590, 1071662
2
BOLIN, Justice.
This is an expedited appeal and cross-appeal. Raymond C.
Bryan, Rodney James, and Jonathon Thompkins appeal from a
summary judgment in favor of Mike Hubbard and Gene Howard,
upholding the Alabama Republican Party's revocation of Bryan's
certificate of nomination as a candidate for judicial office.
Howard cross-appeals, arguing that the summary judgment is not
a final judgment. We affirm in case no. 1071590 and dismiss
the cross-appeal in case no. 1071662.
Facts and Procedural History
On April 4, 2008, Bryan, a licensed attorney in Alabama
residing in the Seventh Judicial Circuit, filed a candidate-
qualifying form with the Alabama Republican Party formally
declaring his intention to seek election to the office of
circuit judge of the Seventh Judicial Circuit, place 4. The
Seventh Judicial Circuit comprises Calhoun and Cleburne
Counties. James and Thompkins are registered voters who
reside in the Seventh Judicial Circuit. Both James and
Thompkins voted for Bryan in the Republican Party primary
election. Hubbard is the chairman of the Alabama Republican
Party executive committee. Howard is a registered voter who
1071590, 1071662
3
resides in the Seventh Judicial Circuit and who voted for
Bryan's opponent and the incumbent judge, Mannon Bankson, Jr.,
in the Republican Party primary election.
Bryan and Bankson were certified to the secretary of
state's office as candidates for the office of circuit judge
of the Seventh Judicial Circuit by the Alabama Republican
Party for placement on the ballot for the primary election set
for June 3, 2008. Both names appeared on the Republican Party
primary-election ballot. No candidate qualified to run for
the judgeship in the Democratic Party primary election.
On May 29, 2008, five days before the primary election,
Bryan mailed to the secretary of state's office by certified
mail, return receipt requested, his pre-election report of
campaign contributions and expenditures required by the Fair
Campaign Practices Act, § 17-5-1 et seq., Ala. Code 1975
(hereinafter "the FCPA"). Bryan's report arrived at the
United States post office in Montgomery at 5:14 a.m. on
Monday, June 2, 2008. June 2, 2008, was a state holiday, and
no one from the secretary of state's office retrieved the mail
from the post office that day. Bryan's report was delivered
to the secretary of state's office at 7:42 a.m. on June 3,
1071590, 1071662
4
2008. Bryan's report was posted on the secretary of state's
Web site later that same day.
On June 13, 2008, Hubbard, as chairman of the Alabama
Republican Party executive committee, certified the vote
totals from the June 3, 2008, Republican primary election:
Bryan received 3,051 votes and Bankson received 2,838 votes.
On that same day, Bankson wrote a letter to Hubbard, which
stated:
"Please accept this correspondence as a contest
of the June 3, 2008 Republican Primary Election held
in Calhoun and Cleburne Counties for the position of
Circuit Judge, Place 4. I wish to contest the
election and the Republican nomination of candidate
Raymond C. Bryan, and his position on the ballot as
the candidate for November General Election. I
contend and aver that due to Mr. Bryan's willful
failure to comply with the Fair Campaign Practices
Act
in
this
election
therefore
renders
him
ineligible to be a candidate for this position.
Furthermore, I contend that his failure to comply is
compounded by the fact that in Mr. Bryan's previous
election, he failed to also comply with the Fair
Campaign Practices Act."
Bryan received a telephone call from someone in Hubbard's
office, informing him of the receipt by the Alabama Republican
Party of Bankson's statement of election contest. Bryan
responded to the telephone call by sending a letter to Hubbard
on June 16, 2008. That letter stated:
1071590, 1071662
Section 17-5-8(a)(1), Ala. Code 1975, requires a
1
candidate's campaign committee to file, between 10 and 5 days
before
an
election,
a
report
of
contributions
and
expenditures. The parties refer to this report as a "10/5 day
report" and a "10-5 day report."
5
"This letter is in response to the election
challenge filed by Mannon Bankson to my victory over
him in the June 3rd primary. Mr. Bankson contends
the Party should not issue a certificate of election
to me due to my alleged '... willful failure to
comply with the Fair Campaign Practices Act (FCPA)
in this election.'
"I strongly deny that I have willfully failed to
comply with any requirement of the FCPA and have
filed all reports required by the Act. The
following is the time line of reports mailed to the
Secretary of State by certified mail/return receipt
requested
with
copies of supporting documents
attached:
"1). April 7, 2008 - Appointment Of Principal
Campaign Committee.
"2). April 19, 2008 - 45 day Candidate Pre-
Election Report.
"3). May 29, 2008 - 10/5 day Candidate Pre-
Election Report.[ ] Attached are receipts showing
1
date/time stamp of this report being posted at the
Anniston Post Office on Thursday, May 29, 2008, at
02:07:40 PM. When the report had not posted to the
Secretary of State's web site by Tuesday morning,
June 3rd, I contacted the Election's Division of the
Secretary of State. I was informed they were not in
possession of this report. I then used the United
States Postal Service tracking service to trace the
report having arrived at the Montgomery Post Office
on Monday, June 2nd at 05:14 AM (June 2nd was a
State holiday for Jefferson Davis' birthday.) The
tracking service showed the report was delivered to
1071590, 1071662
6
the Secretary of State Tuesday, June 3rd at 07:42
AM. After contacting the Secretary of State with
this information a search was conducted within the
Secretary of State's office and it was discovered
the report had been erroneously delivered to the
Corporation's division of that office. I was
informed the report would be immediately scanned
into the system for posting to the web site.
"I learned at the time that I was trying to
trace the 10/5 day Report that the Secretary of
State had a deadline for certified mail of this
report to be May 27th. I honestly did not know the
deadline for mailing this report was different than
the actual deadline when the report was due on May
29th. Had I known, I would most certainly have
mailed the report on the 27th or driven the report
to the Secretary of States' office that Thursday for
filing. At the time I mailed the report I believed
mailing by certified mail was effective on the date
it was mailed just as it is done in the law by the
Rules of Civil Procedure and as is done when mailing
tax returns.
"Mr. Bankson requests the Republican Party
disqualify me from being the Republican candidate
for election in the November General Election due to
the 10/5 day report having been tardy in mailing.
The Alabama Supreme Court has spoken to the issue of
a campaign report having been late in filing as
opposed to not having been filed at all pursuant to
the FCPA. So long as the untimely report is filed
before the election to which it applies the law is
that an untimely filed FCPA-required report does not
impose the harsh penalty of disqualifying the
candidate pursuant to Ala. Code § 17-22A-21.
Instead, there may be criminal penalties for failing
to file the report timely pursuant to Ala. Code §
17-22A-22(b). See, Davis vs. Reynolds, 592 So. 2d
546 (Ala. 1991).
1071590, 1071662
7
"I contend that my election should stand as it
is undisputed that the 10/5 day 'Candidate Pre-
Election Report' was mailed by certified mail five
(5) days before the election and would have been
received by the Secretary of State no later than
Monday, June 2nd, had there not been a state holiday
for Jefferson Davis' birthday. To deny the popular
vote of the people of Calhoun and Cleburne County of
my election over Mannon Bankson due to the state
having been on holiday would be a severe injustice
and unconstitutional. I pray the leaders of our
Party will not grant Mr. Bankson what he could not
win by popular election and certify me as the
Republican party candidate for election in the
November general election for Circuit Judge in the
7th Circuit Place 4.
"Due to Mr. Bankson having raised a prior
election in which I was a candidate, although it
should have no bearing on the decision of the
Steering Committee in this matter, I feel I should
speak to the matter. My opponent raises as
purported
evidence
of
my
willfulness
in
not
complying with the requirements of the FCPA in
missing the certified mail deadline that I did not
close out my campaign account in another election in
which I ran in 2006. I lost that election and it
has no relation to the present election which I won
on June 3, 2008. However, I would point out for my
opponent's sake that he also ran for election in
1998 and lost. He also did not close out his
campaign account or file annual reports after the
1999 annual report reflecting a balance in his
campaign account of $1,720.25. Having not filed an
annual report since January, 1999, on January 31,
2008, Mr. Bankson filed a waiver with the Secretary
of State that reflected a zero balance in the 1998
campaign account. This was done without there being
any previous report having been filed explaining
what Mr. Bankson did with the campaign contributions
that had been present in his account in 1999 and
which no longer exist. The disappearance of these
1071590, 1071662
8
campaign funds is a violation of the FCPA. This
violation is compounded by the fact that all
receipts of funds to Mr. Bankson's campaign accounts
in the 1998 election were from contributors to his
campaign and there were no personal loans made by
Mr. Bankson to his campaign account. Thank you for
considering my defense in this matter and [I] trust
the
Republican
Party
will
proudly
uphold
my
election."
On June 20, 2008, the steering/candidate committee of the
Alabama Republican Party met in Birmingham. The minutes of
that meeting state, in pertinent part, as follows:
"The Chairman then
called
the
Steering
Committee
into session as the Candidate Committee of the
Alabama Republican Party. The first discussion was
the matter of Mannon G. Bankson, Jr. and Raymond C.
Bryan. Raymond C. Bryan won the primary election
for Circuit Judge, Place 4 in Cleburne and Calhoun
Counties. Mr. Bankson contested the election
stating that Mr. Bryan failed to comply with the
Fair Campaign Practices Act, therefore making him
ineligible to be a candidate for the position.
Individuals [involved] in that dispute were asked to
leave the room until the Committee reviewed the
case. After review of the documents provided by Mr.
Bankson and Mr. Bryan and reviewing the law
governing elections, Bettye Fine Collins made a
motion that the Committee directs the Chairman to
decertify the election of Raymond C. Bryan, but to
delay it until July [2], 2008. After discussion and
a second, the motion carried. Elbert Peters voted
no. Del Marsh abstained."
On
June
27,
2008,
Bryan,
James,
and
Thompkins
(hereinafter referred to collectively as "the petitioners")
filed in the Circuit Court of Jefferson County, where
1071590, 1071662
9
Hubbard's office is located, a petition for a writ of
prohibition, mandamus, certiorari, or other appropriate
extraordinary relief to preclude Hubbard, the probate judges
in Calhoun and Cleburne Counties, and the secretary of state
from preventing Bryan's name from appearing on the November 4,
2008, general-election ballot. That same day, the petitioners
also filed a motion for a preliminary injunction seeking to
enjoin Hubbard from sending a letter to the secretary of state
stating that the Alabama Republican Party was revoking Bryan's
certificate of nomination. On June 30, 3008, Howard filed a
motion to intervene in the action as a registered voter and a
resident of the Seventh Judicial District, which the trial
court granted. Howard asserted that Bryan failed to comply
with the FCPA and that, therefore, the executive committee had
a duty to revoke Bryan's certificate of nomination. He also
sought relief, in the alternative, from the secretary of state
and the respective probate judges in the form of not placing
Bryan's name on the November 4, 2008, general-election ballot.
On June 30, 2008, the trial court held a hearing on the
petitioners' motion for a preliminary injunction. At the
hearing, the parties stipulated to certain facts, including
1071590, 1071662
10
the fact that Hubbard did not conduct an election-contest
proceeding as requested by Bankson, even though § 17-13-70,
Ala. Code 1975, requires a hearing. The parties also
stipulated that if Hubbard were to testify he would say that
the reason the Alabama Republican Party revoked Bryan's
certificate of nomination was that, based on the filings by
the parties, there was no dispute as to the facts, so there
was no need to conduct an election-contest proceeding. At
the hearing, it was agreed that Hubbard would not send the
letter of revocation to the secretary of state's office until
July 7, 2008, in order to give the trial court time to review
the submissions and to prepare and enter an order.
Also on June 30, 2008, Bankson filed additional materials
with the Alabama Republican Party, supplementing his original
letter of June 13, 2008, contesting the election, with an
affidavit attesting to the truth of the facts set out in his
original letter and offering to supply security for costs.
When the hearing concluded on June 30, 2008, Hubbard filed a
motion with the trial court, stating:
"Mike
Hubbard,
chairman
of
the
Alabama
Republican Party Executive Committee, hereby gives
notice of the filing of an election contest by
Mannon G. Bankson, Jr. on June 13, 2008. The
1071590, 1071662
11
statement challenges the nomination of Raymond C.
Bryan to the position of Circuit Judge, Place 4, by
the election results of the June 3, 2008 Republican
primary election. A hearing on written materials
submitted by both Mannon G. Bankson and Raymond C.
Bryan was conducted on June 20.
"The matter is set for further hearing on July
2, 2008 and at such additional times as may be
needed for a proper resolution of the matter. A
copy of the Bankson filing is attached. ..."
On July 1, 2008, Bryan filed an objection with the
Alabama Republican Party contesting the steering/candidate
committee's jurisdiction to hold a hearing on Bankson's
election contest because, he argued, under § 17-13-85, Ala.
Code 1975, an election contest must be heard not less than 5
nor more than 10 days after the filing of the statement of
election contest; therefore, he stated, the hearing had to
have been held by June 23, 2008. That same day, the
petitioners also filed a motion with the trial court, giving
the
court
notice
of
Bryan's
filings
contesting
the
steering/candidate committee's election-contest hearing set
for July 2, 2008.
On July 2, 2008, the steering/candidate committee of the
Alabama Republican Party met again. The minutes from the
meeting provide, in pertinent part, as follows:
1071590, 1071662
12
"The duly called Candidate Committee meeting of
the Alabama Republican Party was convened by
Chairman Mike Hubbard at the headquarters of the
Party in Birmingham, Alabama on July 2, 2008 at 3:08
PM. The roll was called by Secretary Sallie Bryant.
In attendance were Ed Allen, Bill Armistead (by
phone), Martha Stokes (proxy for Pierce Boyd),
Sallie Bryant, Bettye Fine Collins, Susan Filippeli
(by phone), Mike Fricker, Mike Hubbard (by phone),
Homer Jackson, Jerry Lathan (by phone), Bobbi Lou
Leigh (by phone), Del Marsh, Elbert Peters (by
phone), Greg Reed, Paul Reynolds (by phone), Harold
Sachs, Kevin Speed, George Williams (by phone), and
Bill Wood (by phone).
"The Chairman stated the purpose of the meeting
was to hear the facts on the matter of Mannon G.
Bankson, Jr. and Raymond C. Bryan. He turned control
of the meeting over to Senior Vice Chairman Greg
Reed. Mr. Reed stated parties in the matter had
agreed Al Agricola would recite the stipulation of
facts. After his presentation of the stipulation of
facts, Mr. Agricola spoke on behalf of Raymond C.
Bryan, then Burt Jordan spoke on behalf of Mannon G.
Bankson, Jr.
"After receipt of the documents related to the
case, statements from both attorneys and oral
statements from both candidates, Mr. Reed called the
Candidate Committee into closed session. Control was
returned to Chairman Hubbard. After discussion,
Elbert Peters made a motion that the Candidate
Committee finds that Mr. Bryan filed his 10-5 day
report late. The motion failed due to the lack of
a second. After further discussion, Jerry Lathan
made a motion that the Committee affirms its
decision made on June 20, 2008 disqualifying Mr.
Bryan based on the facts of the case. After a
second and discussion, the motion passed by a vote
of 12 to 5. Those voting Aye were Bryant,
Filippeli, Fricker, Hubbard, Jackson, Lathan, Leigh,
Reed, Reynolds, Speed, Williams, and Wood. Those
1071590, 1071662
13
voting No were Armistead, Stokes, Collins, Peters
and Sachs. Mr. Marsh abstained.
"During discussion of the above motions, the
supplemental Bankson filings were received over the
objection of Mr. Bryan; and the Bryan objections to
the Bankson contest and the Committee's jurisdiction
were overruled because the committee has not made it
a practice to require security for costs, also
because the original Bankson contest letter was
factually true and was undisputed by the Bryan
response and was substantiated by the Secretary of
State's website, and because Mr. Bankson had
qualified as a candidate and therefore was known to
be a qualified elector who participated in the
primary. Susan Filippeli moved that we further
state that we believe the law requires that we
revoke Mr. Bryan's certification. After a second,
the motion passed. Mr. Allen was instructed by the
Chairman to tell the candidates and the meeting was
adjourned at 5:55 PM."
On July 3, 2008, Hubbard filed the minutes of the July 2,
2008, hearing with the trial court.
On July 3, 2008, the petitioners amended their petition,
arguing that Bankson could not amend his statement of election
contest to include an affidavit and offer to pay security for
costs
after
the
expiration
of
the
24-hour
statutory
limitations period for filing an election contest in a
primary-election matter under § 17-13-70. They also argued
that the Alabama Republican Party executive committee lost
jurisdiction over the election-contest proceedings because,
1071590, 1071662
14
they argued, the last day within which to timely hold the
election-contest hearing under § 17-13-85 was on or before
June 23, 2008, and the hearing was held on July 2, 2008.
On July 7, 2008, the trial court entered an order denying
the petitioners' motion for a preliminary injunction because
the matter would be heard expeditiously and the petitioners
would suffer no harm by the denial of the motion for a
preliminary injunction. In that same order, the trial court
dismissed without prejudice the probate judges of Calhoun and
Cleburne Counties, and the secretary of state, with the
understanding that those parties would carry out the trial
court's orders if necessary. On July 11, 2008, the remaining
parties agreed to submit the case for a decision on the merits
on motions for a summary judgment.
On July 21, 2008, the parties submitted their motions for
a summary judgment and on July 28, 2008, each side responded
to the other side's motion. On August 18, 2008, the trial
court granted Hubbard and Howard's motion for a summary
judgment and declared all other pending motions moot. The
petitioners appeal; Howard cross-appeals.
Standard of Review
1071590, 1071662
15
"'"[B]ecause the underlying facts are not
disputed and this appeal focuses on the application
of the law to those facts, there can be no
presumption of correctness accorded to the trial
court's ruling." Beavers v. County of Walker, 645
So. 2d 1365, 1373 (Ala. 1994) (citing First Nat'l
Bank of Mobile v. Duckworth, 502 So. 2d 709 (Ala.
1987)). Appellate review of a ruling on a question
of law is de novo. See Rogers Found. Repair, Inc. v.
Powell, 748 So. 2d 869 (Ala. 1999); Ex parte Graham,
702 So. 2d 1215 (Ala. 1997).'"
Woods v. Booth, [Ms. 1060953, Feb. 22, 2008] So. 2d ,
(Ala. 2008)(quoting Ex parte Forrester, 914 So. 2d 855, 858
(Ala. 2005)).
Discussion
Case no. 1071590
The petitioners argue that Hubbard, in his official
capacity as chairman of the executive committee of the Alabama
Republican Party, lacked the authority to hear Bankson's
election contest challenging Bryan's compliance with the FCPA
because Bankson failed to file his contest within 24 hours as
provided in § 17-13-70, failed to timely file an affidavit
averring that the statements in his letter were true as
provided in § 17-13-78(b), Ala. Code 1975, failed to timely
post security for costs as provided in § 17-13-78(b), and
failed to aver that he was a qualified elector who
1071590, 1071662
16
participated in the primary election as required by § 17-13-
78(a)(1). Hubbard argues that it was not necessary for Bankson
to have filed an election contest challenging Bryan's
candidacy under the unambiguous provisions of the FCPA and
that this Court should overrule recent caselaw holding that an
election contest is necessary to challenge a violation of the
FCPA and enforcement of the disqualification sanction set out
in § 17-5-18, Ala. Code 1975.
Section 17-5-18 provides:
"A certificate of election or nomination shall
not be issued to any person elected or nominated to
state or local office who shall fail to file any
statement or report required by this chapter. A
certificate of election or nomination already issued
to any person elected or nominated to state or local
office who fails to file any statement or report
required by this chapter shall be revoked."
The legislature's primary purpose in enacting the FCPA
was to require candidates for public office in Alabama to
disclose campaign contributions and expenditures before an
election. In accordance with this purpose, the legislature
provided for the harshest penalty of all in § 17-5-18 -- a
candidate who fails to file the reports required by the FCPA
before an election shall forfeit the election.
1071590, 1071662
17
In the present case, Bryan mailed his campaign-finance
report, by certified mail, on May 29, 2008. The last day for
Bryan to have timely mailed the required campaign-finance
report and have it "deemed to be filed in a timely fashion"
pursuant to 17-5-10(b), Ala. Code 1975, was May 27, 2008,
because the report had to be postmarked two days before the
required filing date. Although the report arrived at the post
office in Montgomery on June 2, 2008, that date was a state
holiday, and the secretary of state was under no duty to pick
up the report from the post office. Bryan's report was
received at the secretary of state's office on June 3, 2008,
the day of the primary election. This Court held in the
plurality opinion of Ex parte Krages, 689 So. 2d 799 (Ala.
1997), that a filing of a report required by the FCPA on the
day of the election is the equivalent of not filing the report
at all. As noted above, the purpose of the FCPA campaign-
finance report is to allow the electorate to view a
candidate's list of contributors and expenditures. Bryan's
filing on the day of the primary election was the equivalent
of not filing a report at all because information contained in
1071590, 1071662
18
the campaign-finance report was not available to the
electorate before the time for voting.
The question we must answer is whether an election
contest was necessary to challenge a violation of the FCPA in
light of the action taken by the Alabama Republican Party. If
an election contest was necessary, then we must also decide
whether Hubbard, in his official capacity as chairman of the
Alabama Republican Party executive committee, was without
authority to hear Bankson's election contest because he failed
to comply with the statutes governing an election contest.
This Court has recently addressed the need for filing an
election contest when a candidate's compliance with the FCPA
has been questioned. See Roper v. Rhodes, [Ms. 1060331,
January 11, 2008] So. 2d (Ala. 2008). William Roper
was a candidate in the Democratic Party primary election to
select the Party's nominee for a seat on the county board of
education. Following the primary election, Roper and Ronald
Rhodes participated in a runoff election for that office; the
runoff election resulted in a tie vote. Roper lost to Rhodes
in a "domino draw" conducted by the county Democratic Party,
and Rhodes was certified as the nominee. Roper sued the
1071590, 1071662
19
probate judge and the secretary of state, seeking to revoke
the certificate of nomination issued to Rhodes and to remove
Rhodes's name from the general-election ballot. Also, Roper
alleged that Rhodes had violated the FCPA before the primary
and runoff elections. Specifically, Roper claimed that Rhodes
had violated § 17-22A-8 (now § 17-5-8) of the FCPA, and he
asserted that the circuit court had jurisdiction to enforce §
17-22A-21 (now § 17-5-18) of the FCPA, which requires, under
certain circumstances, the revocation of the certificate of
election or nomination issued to a candidate who has not
complied with the FCPA.
The Roper Court held that the circuit court did not have
jurisdiction to hear Roper's claims because the alleged
violations of the FCPA occurred before the primary and runoff
elections; it further noted that Roper was claiming that
Rhodes was ineligible to participate in those elections, and,
therefore, that Roper was attempting to contest those
elections. This Court held that, because Roper had not
pursued an election contest of the primary election or the
runoff election as then provided for in § 17-16-70 to -89 (now
§§ 17-13-70 to -89), Ala. Code 1975, the circuit court did not
1071590, 1071662
20
have jurisdiction to hear any claims regarding an alleged
violation of the FCPA before the general election.
In Wood v. Booth, supra, a voter filed an action against
the county probate judge and the secretary of state seeking
declaratory, injunctive, and other relief and seeking a
revocation of certificates of nomination issued to certain
candidates for the state senate, as well as the removal of the
candidates' names from the general-election ballot. The voter
alleged that the candidates had not filed pre-primary-election
campaign-finance reports as required under the FCPA. Certain
others intervened. This Court noted that although it was
unclear whether the voter could have filed a pre-primary-
election contest because the senate candidates at issue were
unopposed, the voter was required to file an election contest
following the general election, which he failed to do.
Both Roper and Wood cite Harvey v. City of Oneonta, 715
So. 2d 779 (Ala. 1998), in which a candidate for city council
sought a judgment declaring that her opponent had not complied
with the FCPA and an injunction against certifying her
opponent as the winner of the election. This Court held that
the circuit court did not have jurisdiction to hear the
1071590, 1071662
21
action, and it dismissed the candidate's appeal. We held
that, instead of seeking declaratory and injunctive relief in
the courts, the candidate should have filed a contest to the
municipal election under § 11-46-69, Ala. Code 1975, which
sets out the grounds for filing a contest to a municipal
election and the period for filing such a contest. On the
authority of Davis v. Reynolds, 592 So. 2d 546 (Ala. 1991),
the Harvey Court stated that "a candidate who does not file a
statement or report required by the FCPA before the election
in question is ineligible to be elected to the office at that
election." 715 So. 2d at 780. The candidate in Harvey should
have filed an election contest, and, because she failed to do
so, the circuit court lacked jurisdiction to entertain the
action for declaratory and injunctive relief.
In Roper, Wood, and Harvey, the party was seeking to
disqualify a candidate who allegedly had not complied with the
FCPA, and, after the respective election was held, the party
did not file an election contest. In each case, the party
sought relief in the courts to enforce the mandates of the
FCPA. Roper, Wood, and Harvey held that the circuit courts
did not have jurisdiction to compel compliance with the
1071590, 1071662
22
mandates of the FCPA and, in particular, the disqualification
sanction, where the political parties or other officials
charged with the issuance of certificates of nomination or
election have not already acted. This Court did not in Roper,
Wood, or Harvey address the issue whether a political party
lacked authority to implement the disqualification sanction
set out in § 17-5-18 (or its predecessor § 17-22A-21), Ala.
Code 1975, in the absence of an election contest. That issue
was simply not before the Court in any of those cases.
Although Roper, Wood, and Harvey recognize the existence
of an orderly mechanism for judicial enforcement of the
disqualification sanction in § 17-5-18 by way of statutorily
created election contests, those cases cannot be cited as
authority for limiting the power of a political party to act
extrajudicially when there is no statutory basis for such a
limitation because that issue was not before the Court in
those cases. We would thus limit Roper, Wood, and Harvey to
proceedings seeking judicial enforcement of § 17-5-18 by
persons who, unlike a political party, lack the authority on
their own to accomplish the revocation called for by § 17-5-18
without resort to an election contest.
1071590, 1071662
23
Applying Roper to limit the authority of a political
party to revoke a certificate of nomination it has previously
issued, which, as stated above, is an issue not presented in
Roper, without any indication of legislative intent to so
limit a political party's power, would unduly narrow the
protection conferred by the legislature on the public from a
candidate's failure to file a necessary financial report.
Section 17-5-18 states that "[a] certificate of election or
nomination .... shall be revoked"; it is silent as to whether
the political party has the power to effectuate the revocation
on its own initiative.
It should be noted that the Alabama Democratic and
Republican Parties, having received more than 20 percent of
the entire vote cast in that last general election, have the
right to hold a primary election if they so choose. See § 17-
13-40 and § 17-13-42, Ala. Code 1975. Here, the Alabama
Republican Party by resolution chose to have a primary
election for state-wide and county-wide offices. After the
primary election, it was the duty of the Party to certify its
nominees for the respective offices based on the results of
the primary election. However, the disqualification sanction
1071590, 1071662
24
of the FCPA set out in § 17-5-18 contains a penalty for
failure to comply with financial-reporting requirements that
overlap into the eligibility to be a nominee for the office in
question. Political parties are not bound by the holdings in
Roper, Wood, and Harvey, because a political party, which is
clearly not a court, is not bound by § 17-16-44, Ala. Code
1975 (the jurisdiction-stripping statute).
Whether the Alabama Republican Party learned of Bryan's
failure to file his campaign-finance report by Bankson's
letter
or
otherwise,
it
had
the
right,
duty,
and
responsibility to determine, under its rules and regulations,
whether Bryan failed to file a report required by the FCPA and
was thus ineligible to be issued a certificate of nomination,
and it did so on June 20, 2008, and again on July 2, 2008. A
political party has the right to determine eligibility of its
nominees and to refuse to issue a certificate of nomination or
to revoke a certificate of nomination if one has been entered.
On
June
13,
2008,
Bankson's
letter
notified
the
Republican Party that an issue existed as to whether Bryan had
complied
with
the
requirements
of
the
FCPA.
The
steering/candidate committee gave notice, held a hearing based
1071590, 1071662
25
on stipulated facts, and determined that Bryan was not
qualified to be a candidate. The committee's right, as an arm
of the political party, to do so was outside the grounds for
contesting an election or hearing a contest of an election.
As stated above, the parties stipulated that if Hubbard were
called to testify he would say that the reason the Alabama
Republican Party revoked Bryan's certificate of nomination was
that, based on the filings before the steering/candidate
committee, there was no dispute as to the facts, so there was
no need to conduct an election-contest proceeding; Hubbard
later filed a motion with the trial court stating that the
hearing held by the steering/candidate committee was "on
written materials submitted by both Mannon G. Bankson and
Raymond C. Bryan"; and finally, the minutes of the subsequent
hearing on July 2, 2008, state, in part, that "the Chairman
stated the purpose of the meeting was to hear the facts on the
matter" and that, after further discussion, "a motion [was
made] that the Committee affirms its decision made on June 20,
2008 disqualifying Mr. Bryan based on the facts of the case,"
and "Susan Filippeli moved that we further state that we
believe the law requires that we revoke Mr. Bryan's
1071590, 1071662
26
certification." (Emphasis added.) Both of these motions were
seconded, discussed, and passed. Therefore, it is apparent
that both hearings conducted by the Republican Party were
concerned with matters embraced in the attempted contest, but
the action of the Party was taken outside the contest. Once
Bryan's certificate was revoked, a vacancy was created, and,
by virtue of § 17-13-23, Ala. Code 1975, the Republican Party
had the authority to certify another person as its nominee.
Even if Bankson had complied with all the requirements of
§§ 17-13-70 through -89, Ala. Code 1975, in filing his
"election contest," the Alabama Republican Party could have
decided independently whether its nominees were qualified.
The Party, based on the undisputed facts before it -- that
Bryan mailed his report on May 29, 2008, and that the report
was received by the secretary of state on June 3, 2008 -- had
the duty to revoke the certificate of nomination under § 17-5-
18 of the candidate, Bryan, who failed to file a report
required by the FCPA. The reason the parties in Roper, Wood,
and Harvey had to file an election contest is because, unlike
a political party, an individual with standing who wants to
challenge an election must file a timely and proper contest.
1071590, 1071662
27
An individual has the right to assert a candidate's
eligibility as a ground for contest and thereby bring the
issue before the political party involved, but separate and
apart from the individual's right to proceed, the political
party still has the duty, obligation, and responsibility,
consistent with its rules and bylaws and in accordance with
legislative enactments, to determine whether its nominees are
entitled to a certificate of nomination.
As we noted earlier, political parties are not bound by
the holdings in Roper, Wood, and Harvey, because a political
party, which is not a court, is not bound by § 17-16-44 (the
jurisdiction-stripping statute). However, there remains a
question as to whether § 17-16-44 barred the trial court from
acting in the present case.
Section 17-16-44 provides:
"No jurisdiction exists in or shall be exercised
by any judge or court to entertain any proceeding
for ascertaining the legality, conduct, or results
of any election, except so far as authority to do so
shall be specially and specifically enumerated and
set down by statute; and any injunction, process, or
order from any judge or court, whereby the results
of any election are sought to be inquired into,
questioned, or affected, or whereby any certificate
of election is sought to be inquired into or
questioned,
save
as
may
be
specially
and
specifically enumerated and set down by statute,
1071590, 1071662
28
shall be null and void and shall not be enforced by
any officer or obeyed by any person. If any judge or
other officer hereafter undertakes to fine or in any
wise deal with any person for disobeying any such
prohibited injunction, process, or order, such
attempt shall be null and void, and an appeal shall
lie forthwith therefrom to the Supreme Court then
sitting, or next to sit, without bond, and such
proceedings shall be suspended by force of such
appeal; and the notice to be given of such appeal
shall be 14 days."
Clearly,
in
enacting
§
17-16-44
the
legislature
restricted the jurisdiction of the circuit courts in regard to
elections. "Election challenges are strictly statutory, and
this Court has consistently recognized the Legislature's
intent in empowering the political parties to settle primary
election disputes." McAdory v. Alabama Democratic Party, 729
So. 2d 310, 311 (Ala. 1999). "The only caveat to a state
executive committee's otherwise plenary power to make such a
determination is that, in doing so, the committee cannot 'run
afoul of some statutory or constitutional provision.'" Alabama
Republican Party v. McGinley, 893 So. 2d 337, 346 (Ala.
2004)(quoting Ray v. Garner, 257 Ala. 1168, 171, 57 So. 2d
824, 826 (1952)).
In the present case, the petitioners filed a petition for
a writ of prohibition, mandamus, certiorari, or other
1071590, 1071662
29
appropriate extraordinary relief pursuant to § 6-6-640, Ala.
Code 1975, to prevent Hubbard, in his official capacity as
chairman of the Alabama Republican Party executive committee,
from revoking Bryan's certificate of nomination because, they
alleged, Bankson's election contest "was defective and failed
to quicken the jurisdiction of the committee for the reason
that it failed to provide security, it was not certified by
the affidavit of Mannon G. Bankson, Jr., and it did not
contain any averment that the said Mannon G. Bankson, Jr., was
a qualified elector when the primary was held and that he
participated in it as required by § 17-13-78." The
petitioners also sought to prohibit Hubbard, the probate
judges, and the secretary of state from taking any action that
would prevent Bryan's name from appearing on the November 4,
2008, general-election ballot.
The petitioners' challenge is in essence a challenge to
the Alabama Republican Party's actions in revoking Bryan's
certificate of nomination. Hubbard specifically argues, and
we agree, that the Alabama Republican Party was not
determining an election contest but was acting to comply with
§ 17-5-18 to revoke a certificate of nomination of a candidate
1071590, 1071662
30
who had failed to comply with the reporting requirements of
the FCPA. The petitioners sought relief in the trial court to
ascertain the validity of the actions taken by the Alabama
Republican Party, and the trial court had jurisdiction to
determine whether the Alabama Republican Party had "'run afoul
of some statutory or constitutional provision'" in revoking
the certificate of nomination of the candidate with the most
electoral votes in the June 3, 2008, primary. Therefore, the
jurisdictional limits of § 17-16-44 are not applicable here.
The judgment of the trial court in case no. 1071590 is
affirmed.
Case no. 1071662
Howard
intervened
in
the
underlying
action
and
subsequently filed a cross-appeal from the trial court's
summary judgment, arguing that the summary judgment was not a
final judgment. Howard intervened in the petitioners' action,
asserting that Bryan had not complied with the FCPA and that,
as a voter, Howard did not have the benefit of the financial
information regarding Bryan's campaign prior to the election
that he needed to make an informed decision. However, unlike
a political party, Howard's only remedy was judicial in nature
1071590, 1071662
31
-- to file an election contest as discussed in Roper. Howard
did not have standing to intervene in the actions taken by the
Alabama Republican Party to enforce the FCPA with regard to
the certification of its nominees. "'"Standing represents a
jurisdictional requirement which remains open to review at all
stages of the litigation."'" Dunning v. New England Life Ins.
Co., 890 So. 2d 92, 97 (Ala. 2003)(quoting Ex parte Fort James
Operating Co., 871 So. 2d 51, 54 (Ala. 2003), quoting in turn
National Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255
(1994)). Howard did not have standing to intervene in the
underlying action; therefore, we dismiss Howard's cross-
appeal.
1071590 -- AFFIRMED.
Cobb, C.J., and Lyons, Woodall, Stuart, and Parker, JJ.,
concur.
See, Smith, and Murdock, JJ., concur in the result.
1071662 -- APPEAL DISMISSED.
Cobb, C.J., and Lyons, Woodall, Stuart, and Parker, JJ.,
concur.
See and Smith, JJ., concur in the result.
Murdock, J., dissents.
1071590, 1071662
32
SMITH, Justice (concurring in the result).
I concur in the result in both cases.
In essence, the action filed by Raymond C. Bryan, Rodney
James, and Jonathan Thompkins (hereinafter "the petitioners")
is a collateral attack on the election-contest proceedings
conducted by the Republican Party in regard to the primary
election for the circuit judgeship for the Seventh Judicial
Circuit. To the extent Bryan sought a judgment declaring
those election-contest proceedings invalid, the trial court
had jurisdiction to proceed. Bryan's status as the contestee
adversely affected by the election-contest proceedings is
analogous to that of the appellant in Boyd v. Garrison, 246
Ala. 122, 125, 19 So. 2d 385, 387 (1944), in which this Court
stated:
"[I]nsofar
as
the
petition
seeks
to
have
a
declaration as to the validity and legal effect of
the
contest
proceedings,
thereby
seeking
no
restraining order or prohibition, we see no reason
why the Declaratory Judgment Act, section 156 et
seq., Title 7, Code of 1940, is not available. See
Avery Freight Lines v. White, 245 Ala. 618, 18 So.
2d 394(8), 400 [(1944)].
"We there held that such proceeding was usable
to construe the judgment of a court as it affects
the rights of parties after that court had lost all
control over it and there was an actual controversy
as to its meaning or effect as it appears on record;
1071590, 1071662
33
that is 'whether it is void in toto or in part;
whether errors in that decree, if any, were errors
reviewable only on appeal, or were jurisdictional;
to what extent, if any, (the decree) was without
jurisdiction of the court and void.'"
As to the claims in Gene Howard's cross-appeal, I agree
that they should be dismissed. Howard did not file an
election contest after the primary election; therefore, he was
precluded from seeking judicial enforcement of a provision of
the Fair Campaign Practices Act ("the FCPA") based on an
alleged violation of the FCPA. See Roper v. Rhodes, 948 So.
2d 471 (Ala. 2008); Harvey v. City of Oneonta, 715 So. 2d 779
(Ala. 1998); and Davis v. Reynolds, 592 So. 2d 546 (Ala.
1991). However, Howard's claims in intervention in the
underlying action seek judicial enforcement of the FCPA.
Consequently, the jurisdiction-stripping statute, § 17-16-44,
Ala. Code 1975, as construed in Davis, supra, and subsequent
cases, prevented the trial court from asserting jurisdiction
over Howard's claims.
Finally, the main opinion asserts that "[p]olitical
parties are not bound by the holdings in Roper, Wood, and
Harvey, because a political party, which is clearly not a
court, is not bound by § 17-16-44, Ala. Code 1975 (the
1071590, 1071662
34
jurisdiction-stripping statute)." ___ So. 2d at ___. I agree
with both conclusions: (1) that Roper, Wood, and Harvey do not
speak to the issue of a political party's power to
independently enforce the FCPA, and (2) that a political party
is not a "court" as that term is used in § 17-16-44. The
reason for the first conclusion is evident. However, based on
language in Boyd, in which this Court suggested that the
legislature gave a limited judicial power to political parties
to hear election contests, see Boyd, 246 Ala. at 126, 19 So.
2d at 387-88, the petitioners challenge the second conclusion.
In suggesting that the legislature invested political
parties with limited judicial powers, the Boyd Court relied on
§ 139 of the then existing judicial article of the Alabama
Constitution of 1901. When Boyd was decided, § 139 allowed
the legislature to give "powers of a judicial nature" to
persons through legislation. See Boyd, 246 Ala. at 126, 19
So. 2d at 388. However, the judicial article was amended in
1973 to create a unified judiciary. Section 139, as amended,
now provides:
"(a) Except as otherwise provided by this
Constitution, the judicial power of the state shall
be vested exclusively in a unified judicial system
which shall consist of a supreme court, a court of
1071590, 1071662
35
criminal appeals, a court of civil appeals, a trial
court of general jurisdiction known as the circuit
court, a trial court of limited jurisdiction known
as the district court, a probate court and such
municipal courts as may be provided by law.
"(b)
The
legislature
may
create
judicial
officers with authority to issue warrants and may
vest in administrative agencies established by law
such judicial powers as may be reasonably necessary
as an incident to the accomplishment of the purposes
for which the agencies are created."
(Emphasis added.) Because of the change in the Alabama
Constitution of 1901, political parties may not exercise
"judicial power." Consequently, § 17-16-44, which by its
terms applies only to "any judge or court," does not apply to
political parties.
See, J., concurs.
1071590, 1071662
36
MURDOCK, Justice (concurring in the result in case no. 1071590
and dissenting in case no. 1071662).
I concur in the result as to case no. 1071590; I
respectfully dissent from the dismissal, on the ground of lack
of jurisdiction, of the appeal in case no. 1071662. See my
dissent in Roper v. Rhodes, [Ms. 1060331, January 11, 2008]
___ So. 2d ___, ___ (Ala. 2008) (Murdock, J., dissenting). | October 10, 2008 |
ca380059-b186-4b00-8cef-fa886e0a9853 | Betty M. Bradley and the State of Alabama ex rel. Betty M.Bradley v. Town of Argo et al. | N/A | 1070258 | Alabama | Alabama Supreme Court | REL: 06/27/2008
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, 2007-2008
_________________________
1070258
_________________________
Betty M. Bradley and State of Alabama ex rel. Betty M.
Bradley
v.
Town of Argo et al.
Appeal from St. Clair Circuit Court
(CV-07-107)
LYONS, Justice.
Betty M. Bradley and the State of Alabama on the relation
of Bradley ("Bradley") appeal from an order of the St. Clair
Circuit Court vacating its August 15, 2007, order, which was
favorable to her. In its August 15, 2007, order the circuit
1070258
2
court (1) had declared that the prerequisites of § 11-42-
100.1, Ala. Code 1975, for a special election in the Town of
Argo on the question of the annexation of the Town of Argo
into the City of Springville had been satisfied and (2) had
ordered the Town of Argo to hold such a special election. We
affirm the circuit court's vacatur of the August 15, 2007,
order.
I. Facts and Procedural History
Betty M. Bradley, a resident of the Town of Argo, wants
the Town of Argo to be annexed by the City of Springville.
The Town of Argo is a municipal corporation whose territory is
located in St. Clair County and Jefferson County. The Town of
Argo is contiguous to the City of Springville.
Section 11-42-100.1, entitled "Mode of consolidation -–
When municipality to annex city or town," provides that
contiguous municipalities may consolidate and operate as one
municipality. Section 11-42-100.1(b) provides that if the
governing bodies of contiguous municipalities each adopt,
pass, and publish an ordinance expressing a willingness to
consolidate ("a willingness ordinance"), "the governing body
of the municipality to be annexed shall, by resolution submit
1070258
3
the question of annexation at a special election." If "a
majority of the voters cast votes in favor of the annexation,
and the number so voting in favor of the annexation equals or
is greater than one-half of the number of voters who voted in
the last general municipal election held in such city or town"
then the contiguous municipalities will be consolidated. §
11-42-100.1(d).
Absent a willingness ordinance by the municipality to be
annexed, § 11-42-100.1(c) provides that citizens of that
municipality may petition the probate court of the county or
counties in which the municipality is located to require an
election on the question of annexation. Such a petition must
be "signed by 10 percent or more of the number of qualified
voters who voted in the last general municipal election held
in such municipality immediately preceding the presentation of
said petition ...." § 11-42-100.1(c). Section 11-42-100.1(c)
provides that upon receipt of the petition the probate court
shall
"examine said petition to determine the genuineness
of the signatures thereon, the correctness and
adequacy of the information given by each person
signing the petition and the qualification of
electors signing such petition. If the probate
judge determines that the petition meets statutory
1070258
4
requirements, he shall certify such fact to the
chief executive officer of the municipality for
which such election is so petitioned .... The
certificate of the judge of probate as to the
sufficiency of said petition shall be final."
After the probate judge certifies that the petition meets the
statutory requirements and the annexing municipality passes a
willingness ordinance, "the governing body of the municipality
to be annexed shall by resolution submit the question of
annexation at a special election to be held at a time
specified in such proclamation ...." § 11-42-100.1(c). The
election must be held "not less than 40 days nor more than 90
days after passage of the willingness ordinance by the
annexing city, or after receipt of the petition certification,
whichever event occurs last, or at a time otherwise specified
by law." § 11-42-100.1(c).
On February 23, 2007, Bradley petitioned the St. Clair
Probate Court for a special election in the Town of Argo on
the question of annexation into the City of Springville. The
petition contained the signatures of nearly 350 residents of
the Town of Argo, which was more than 10 percent of the
approximately 800 residents of the Town of Argo who voted in
the immediately preceding general municipal election. On
1070258
5
March 20, 2007, the probate court certified that Bradley's
petition met the requirements of § 11-42-100.1. On April 2,
2007, the City of Springville adopted ordinance no. 2007-02,
which stated that the City of Springville "is willing to annex
the Town of Argo, Alabama, if the voters of the Town of Argo,
Alabama, vote in favor of the said annexation as provided in
[§ 11-42-100.1, Ala. Code 1975]."
On May 15, 2007, the Town of Argo appealed to this Court
the adequacy of the St. Clair Probate Court's certification of
Bradley's petition. On June 21, 2007, this Court dismissed
the appeal on the ground that it was from an unappealable
certification. Town of Argo v. Shrader (No. 1061185). On May
15, 2007, the Town of Argo also sued Bradley in the St. Clair
Circuit Court seeking a judgment declaring that Bradley had
not met the requirements of § 11-42-100.1 for a special
election on the question of annexation and that the Town of
Argo could not lawfully hold an election until the statutory
requirements have been met.
On July 11, 2007, Bradley answered the Town of Argo's
declaratory-judgment complaint, and she filed a counterclaim,
in essence, petitioning for a writ of mandamus. Bradley
1070258
6
petitioned for a writ of mandamus directing the Town of Argo
to conduct a special election to submit to the voters the
question of the annexation of the Town of Argo by the City of
Springville. In the petition Bradley asserted that in
addition to seeking relief individually, she also sought
relief on the relation of the State of Alabama because, she
said, the public has an interest in the Town of Argo's
complying with the law and performing its official duties.
See Homan v. State of Alabama ex rel. Smith, 265 Ala. 17, 19,
89 So. 2d 184, 186 (1956). That same day Bradley moved for a
preliminary injunction to require that the Town of Argo take
the actions necessary to hold a special election on the issue
of annexation. Also on July 11, 2007, Bradley moved to
consolidate the instant action with City of Springville v.
Town of Argo (case no. CV-07-138), an action pending in the
St. Clair Circuit Court in which the City of Springville
sought to prevent the Town of Argo from incurring new and
substantial indebtedness pending the results of the special
election.
On July 25, 2007, Paul Jennings and Gordon Massey, Jr.,
residents of the Town of Argo, moved to intervene in the this
1070258
7
action for the purpose of aligning themselves with the Town of
Argo. The circuit court granted the motion and allowed
Jennings and Massey to intervene. On July 26, 2007, Bradley
amended
her
motion
for
a
preliminary
injunction
and
counterclaim petition for a writ of mandamus. The amended
motion
for
a
preliminary
injunction
and
the
amended
counterclaim each requested that the circuit court enjoin the
Town of Argo from incurring debt for construction of a
municipal building pending the special election on the issue
of annexation.
On August 8, 2007, the circuit court conducted a trial in
which no live testimony was presented, but the parties
presented arguments and documentary evidence as to whether the
statutory requirements for a special election had been
satisfied. On August 15, 2007, the circuit court found that
Bradley had met the requirements of § 11-42-100.1, and it
ordered the Town of Argo to hold a special election on the
question of annexation. The circuit court denied any other
relief sought by the parties.
On September 5, 2007, the Town of Argo moved for a new
trial or, in the alternative, to amend or vacate the circuit
1070258
8
court's August 15, 2007, order pursuant to Rule 59, Ala. R.
Civ. P. In its motion, the Town of Argo asserted that
subsequent to the circuit court's August 15, 2007, order the
City of Springville announced that it planned to reconsider
its willingness ordinance. The circuit court stayed its
August 15, 2007, order pending its disposition on the Town of
Argo's motion and set the matter for a hearing on October 4,
2007.
On September 13, 2007, the City of Springville adopted
ordinance no. 2007-09, rescinding its willingness ordinance.
Ordinance no. 2007-09 stated:
"[B]ecause the City [of Springville] would be
required to assume and pay all debts and liabilities
of Argo in the event at a special election the
citizens of Argo were to vote at a special election
in
favor
of
annexation
into
the
City
[of
Springville], the City [of Springville] filed a
lawsuit seeking an order to prevent Argo from
incurring new and substantial indebtedness pending
the results of the said special election; and
"WHEREAS, the City [of Springville] was unable
to obtain an order to prevent Argo from incurring
new and substantial indebtedness pending a vote of
the citizen's of Argo on whether to annex Argo into
the City [of Springville]; and
"WHEREAS, Argo has incurred new and substantial
indebtedness since the City [of Springville] adopted
the Willingness Ordinance; and
1070258
9
"WHEREAS, the City
[of
Springville]
has
concerns
that Argo will continue to incur indebtedness
despite the fact the Circuit Court of St. Clair
County has ordered that the special election be
held; and
"WHEREAS, the City Council is of the opinion
that, in light of Argo's new and additional debt, it
is
in
the
best
interests
of
the
City
[of
Springville] and its citizens that the City [of
Springville] not annex Argo and that the Willingness
Ordinance should be rescinded, revoked and repealed.
"NOW, THEREFORE, BE IT ORDAINED by the Mayor and
City Council of the City of Springville, Alabama,
that Ordinance No. 2007-02, also referred to as the
Willingness Ordinance, is hereby repealed, revoked
and rescinded."
On September 20, 2007, the Town of Argo amended its
motion for a new trial or, in the alternative, to amend or
vacate the order. To this motion the Town of Argo attached a
copy of ordinance no. 2007-09. Bradley opposed the Town of
Argo's motion, arguing that the City of Springville's
rescission of the willingness ordinance was immaterial to the
Town of Argo's obligation to conduct the special election
pursuant to § 11-42-100.1 and the circuit court's August 15,
2007, order. Bradley argued that § 11-42-100.1 does not allow
the proposed change or vacation of the August 15, 2007, order
and that Bradley's right to a special annexation election in
the Town Argo had vested.
1070258
10
The circuit court held a hearing on the Town of Argo's
motion for a new trial or, in the alternative, to amend or
vacate the August 15, 2007, order, and on October 9, 2007, the
circuit court vacated its August 15, 2007, order. The circuit
court held that because the City of Springville had rescinded
its willingness ordinance, the requirements of § 11-42-100.1
had not been satisfied and that the Town of Argo was not
required to hold an election on the question of annexation.
Bradley, as an individual, and the State, on the relation of
Bradley, appealed the circuit court's vacation of its August
15, 2007, order.
II. Standard of Review
Whether to grant relief under Rule 59(e), Ala. R. Civ.
P., is within the trial court's discretion. See Moore v.
Glover, 501 So. 2d 1187, 1191 (Ala. 1986) (Torbert, C.J.,
concurring specially) ("During the 30-day period after the
entry of judgment, the trial court has great judicial
discretion that it may exercise over its final judgment. The
trial judge should be able to consider any evidence in
deciding whether to vacate the entry of summary judgment. Any
reasonable explanation of the party's failure to offer
1070258
11
evidence in response to a motion for summary judgment will
suffice, but this does not mean that under the guise of a Rule
59(e) motion a party can belatedly submit available evidence
in opposition to a motion for summary judgment."). In In re
Brickell, 142 Fed. Appx. 385, 391 (11th Cir. 2005) (not
selected for publication in the Federal Reporter), the United
States Court of Appeals for the Eleventh Circuit addressed the
comparable Federal Rule 59(e), stating:
"We review the denial of a Rule 59(e) motion to
alter or amend judgment for abuse of discretion.
Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th
Cir. 1997) (per curiam). 'The only grounds for
granting [a Rule 59(e)] motion are newly-discovered
[previously unavailable] evidence or manifest errors
of law or fact.' Kellogg v. Schreiber (In re
Kellogg), 197 F.3d 1116, 1119 (11th Cir. 1999).
Rule 59(e) may not be used to relitigate a claim or
to present arguments or evidence that could have
been raised prior to the entry of judgment. Mincey
v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir.
2000)."
(Emphasis added.)
Ordinance no. 2007-09, the newly discovered evidence
offered here as the basis for relief under Rule 59(e), was
"previously unavailable" because it did not exist when the
circuit court issued its August 15, 2007, order. Under the
circumstances here presented the circuit court did not exceed
1070258
12
its discretion in vacating the August 15, 2007, order to allow
the court to consider the "previously unavailable" evidence.
However, the circuit court's application of law to the
undisputed fact of the City of Springville's adoption of
ordinance no. 2007-09 is subject to de novo review. See
Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus., Chem.
& Energy Workers Int'l Union Local 4-487, 328 F.3d 818, 820
(5th Cir. 2003) (applying the analogous Federal Rule 59(e))
("We generally review a decision on a motion to alter or amend
judgment under Rule 59(e) for abuse of discretion. See
Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000); Midland
West Corp. v. FDIC, 911 F.2d 1141, 1145 (5th Cir. 1990). To
the extent that a ruling was a reconsideration of a question
of law, however, the standard of review is de novo. Tyler v.
Union Oil Co., 304 F.3d 379, 405 (5th Cir. 2002); Fletcher,
210 F.3d at 512.").
III. Analysis
Bradley contends that the circuit court improperly
vacated its August 15, 2007, order because, she says, the
language of § 11-42-100.1 imposes a mandatory duty upon the
municipality to be annexed to conduct an election once the
1070258
13
probate court certifies the petition and the annexing city has
adopted a willingness ordinance. Bradley contends that § 11-
42-100.1 does not allow the annexing city to rescind its
willingness ordinance before the special election. Bradley
recognizes that § 11-42-100.1 does not explicitly address the
situation here--when the annexing city rescinds a willingness
ordinance before the special election--but she argues that
"several facts and features" of the statute strongly imply
that the City of Springville's rescission of its willingness
ordinance is immaterial to the Town of Argo's duty to conduct
a special election on the question of annexation. Bradley's
brief at 20.
First, Bradley notes that § 11-42-100.1(c) provides that
the purpose of the filing of the petition with the probate
court is to "mandatorily require an election to be held as
herein provided ...." (Emphasis added.) Second, Bradley
asserts that nothing in § 11-42-100.1 or its structure implies
that the mandatory character of the election disappears after
the the probate court has certified the petition and the
annexing city has passed a willingness ordinance. Bradley
notes that § 11-42-100.1(c) provides that after those two
1070258
14
prerequisites are met "the governing body of the municipality
to be annexed shall by resolution submit the question of
annexation at a special election ...." (Emphasis added.)
Third, Bradley contends that the municipality to be annexed
has a mandatory duty to hold the special election once the
requirements of § 11-42-100.1(c) have been met because the
statute specifies a definite time within which to hold the
special election ("not less than 40 days nor more than 90
days after passage of the willingness ordinance, or after
receipt of the petition certification, whichever event occurs
last ....").
Bradley further contends that § 11-42-100.1 implies that
the adoption of a willingness ordinance is not subject to
revocation after there has been final certification of the
petition by the probate judge. She notes that § 11-42-
100.1(c) provides that the "certificate of the judge of
probate as to the sufficiency of said petition shall be
final." (Emphasis added.) Bradley argues that the term
"final" implies that the probate court's certification takes
the process beyond the point where the initiators can change
1070258
The eight instances of the Town of Argo's allegedly
1
wrongful conduct are: 1) insisting that the certification of
the Probate Court of Jefferson County was also necessary; 2)
its earlier appeal from the probate court's certification; 3)
obtaining a stay of the certification while its earlier appeal
15
course and serves to prevent the withdrawal of a willingness
ordinance.
Bradley argues that the right to vote is contractual in
nature and that, therefore, the circuit court's vacation of
its August 15, 2007, order allows the Town of Argo, by
attempting to block the special election, to cause a violation
of § 95 of the Alabama Constitution of 1901. Section 95
provides:
"There can be no law of this state impairing the
obligation of contracts by destroying or impairing
the
remedy
for
their
enforcement;
and
the
legislature shall have no power to revive any right
or remedy which may have become barred by lapse of
time, or by any statute of this state. After suit
has been commenced on any cause of action, the
legislature shall have no power to take away such
cause of action, or destroy any existing defense to
such suit."
Lastly, Bradley asserts that the Town of Argo's efforts
to block the referendum by a pattern of alleged wrongful
conduct makes relief important to the rule of law. Bradley
then asserts eight instances of the Town of Argo's allegedly
wrongful conduct. Bradley asserts that this Court's
1
1070258
was pending; 4) incurring additional debt for a new municipal
building; 5) the litigation by the City of Springville to
block the borrowing; 6) requesting and obtaining a stay of the
August 15, 2007, order; 7) arguing that the City of
Springville's ordinance rescinding its willingness ordinance
excused the Town of Argo from holding the annexation election;
and 8) seeking to block inclusion in the record on appeal of
the transcript of the July 26, 2007, hearing in which the
circuit court dismissed the City of Springville's action, case
no. CV-07-138.
16
assistance is needed in this matter in light of the Town of
Argo's past conduct because, she says, a citizen of the Town
of Argo could never achieve compliance with § 11-42-100.1 and
a referendum could never be held in a timely fashion.
The Town of Argo contends that the circuit court properly
vacated its August 15, 2007, order because, it says, the City
of Springville had the authority to rescind its willingness
ordinance before the special election. The Town of Argo
contends that the plain language of § 11-42-100.1 does not
provide or imply that the annexing city lacks the right to
rescind an earlier adopted willingness ordinance. The Town of
Argo further asserts that to construe § 11-42-100.1 as
implying that the City of Springville lacks such a right would
limit a municipality's authority to act in its best interest.
The Town of Argo then argues that the circuit court
properly vacated its order requiring the Town of Argo to hold
1070258
17
a special election, because, it says, the Town of Argo cannot
proceed with a special election without a willingness
ordinance from the City of Springville. The Town of Argo
further asserts that an election held pursuant to § 11-42-
100.1 when all the requirements of the statute have not been
met would be void or voidable. See Boulding v. City of
Homewood, 277 Ala. 665, 174 So. 2d 306 (1965). Lastly, the
Town of Argo contends that Bradley's contention that the
circuit court's determination that the Town of Argo was not
required to conduct a special annexation election violates
Art. IV, § 95, Alabama Constitution 1901, is misplaced
because, it says, the language of § 95 applies to the
legislature's power to determine the period within which an
action may be brought and protects against the revival of an
action once it is time-barred.
This Court has not previously considered whether a
municipality may rescind a willingness ordinance before the
election on the question of annexation is held pursuant to §
11-42-100.1, and "[t]here is very little authority which
discusses whether an annexation or detachment ordinance or
resolution may be repealed." 2 Eugene McQuillin, Law of
Municipal Corporations § 7:39.38 at 843 (3d ed. rev. 2006).
1070258
18
McQuillin goes on to state, however, that "[o]f the few cases
that do decide the issue, most hold that the ordinance or
resolution may be repealed ...." See Vesenmeir v. City of
Aurora, 232 Ind. 628, 115 N.E.2d 734 (1953); Allen Parish
Water Dist. No. 1 v. City of Oakdale, 540 So. 2d 564 (La. Ct.
App. 1989); Mitrus v. Nichols, 171 Misc. 869, 13 N.Y.S.2d 990
(N.Y. Sup. Ct. 1939); and State ex rel. Maxson v. Board of
County Comm'rs of Franklin County, 167 Ohio St. 458, 149
N.E.2d 918 (1958).
We recognize the general rule that the power of the
municipality to enact an ordinance implies the power to
rescind an ordinance, but that the rescission of an ordinance
is ineffective as to rights that were acquired under the
ordinance and that have vested prior to its rescission. See
56 Am. Jur. 2d Municipal Corporations § 370 (2000). In
Vesenmeir, 232 Ind. at 632, 115 N.E.2d at 737, the Supreme
Court of Indiana held:
"As a general rule a municipality which has been
given the power to enact ordinances has, as a
necessary incident thereto and without any express
authorization in the statute, the power to modify or
repeal such ordinances unless the power so to do is
restricted in the law conferring it. The power is
subject to the limitation that the repeal or change
cannot be made so as to affect any vested rights
1070258
19
lawfully acquired under the ordinance sought to be
modified or repealed."
Because a municipality has the right to rescind an ordinance
and § 11-42-100.1 does not explicitly restrict the annexing
municipality from rescinding the willingness ordinance before
the special election on the question of annexation, the
circuit court properly recognized the City of Springville's
rescission of its willingness ordinance and vacated its August
15, 2007, order. We limit our holding that a willingness
ordinance may be rescinded before the special election on the
question of annexation to the extent that such rescission does
not disturb any vested rights. Here, there is no evidence
indicating that the Town of Argo had set a date for the
special election or that it had disbursed any funds in
anticipation of such an election. It is not necessary to
decide in this case whether such evidence would have been
sufficient to establish a vested right.
Moreover, § 11-42-100.1 is dependent on the existence of
a desire to consolidate on the part of at least one of the
contiguous municipalities. Based on the circumstances here
presented, we also need not decide whether the continued
existence of a willingness ordinance at all stages is a
1070258
20
jurisdictional issue. In view of the rescission of the
willingness ordinance by the City of Springville at this early
stage of the process provided for by § 11-42-100.1, the
circuit court correctly concluded that the prerequisites of §
11-42-100.1 for a special election in the Town of Argo on the
question of annexation have not been satisfied.
IV. Conclusion
Based on the foregoing, we affirm the circuit court's
judgment vacating its August 15, 2007, order.
AFFIRMED.
Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | June 27, 2008 |
e470dc1f-8586-48b8-b433-e18975d21e80 | Robert M. Beauchamp v. Coastal Boat Storage, LLC, Mark Mallett and Todd Flanders (Appeal from Baldwin Circuit Court: | N/A | 1061491 | 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
_________________________
1061491
_________________________
Robert M. Beauchamp
v.
Coastal Boat Storage, LLC, Mark Mallett, and Todd Flanders
_________________________
1061497
_________________________
Christopher Jones
v.
Coastal Boat Storage, LLC, Mark Mallett, and Todd Flanders
2
__________________________
1061515
__________________________
Christy Hotz
v.
Coastal Boat Storage, LLC, Mark Mallett, and Todd Flanders
Appeals from Baldwin Circuit Court
(CV-05-1215)
BOLIN, Justice.
Robert M. Beauchamp, Christopher Jones, and Christy Hotz
(hereinafter collectively referred to as "the buyers") appeal
from the trial court's grant of a motion for a new trial filed
by Coastal Boat Storage, LLC, Todd Flanders, and Mark Mallet
(hereinafter collectively referred to as "the sellers") after
the jury returned a verdict in favor of the buyers.
Facts and Procedural History
In late March 2005, Coastal Boat obtained a 60-day option
to purchase approximately 88 acres of waterfront property in
Baldwin County, referred to as the Wolf Bay property, from the
Orange Beach
Development
Company for
$2,500,000.
Coastal
Boat
is a limited liability company owned by Flanders and Mallett.
The option to purchase was to expire on June 1, 2005. During
1061491; 1061497; 1061515
3
the option period, Rick Harris, a real-estate agent working on
behalf of Costal Boat, offered the Wolf Bay property for sale
by contacting several real-estate agents he knew.
In late April or early May 2005, the buyers showed
interest in the Wolf Bay property. Christy Hotz is a real-
estate agent who works in Birmingham; Christopher Jones is a
real-estate developer in Birmingham; and Robert M. Beauchamp
is a lawyer licensed to practice law in Georgia and a real-
estate developer. The buyers had been involved in a project
to convert the 32d Street Baptist Church located in Jefferson
County into condominium units. To effectuate that project,
Beauchamp, Hotz, Jones, and Sean Denard had formed a limited
liability partnership in Georgia called "Birmingham Design
Build, LLP." Jones sent Beauchamp aerial photographs of the
Wolf Bay property. On April 26, 2005, Beauchamp executed a
power of attorney authorizing Hotz to act on his behalf,
including authorizing her to purchase real property.
On May 20, 2005, Hotz and Jones flew to Baldwin County to
view the Wolf Bay property. Harris was present, along with
Don Bain, a real-estate agent from Baldwin County who was
representing the buyers. That same day, Hotz and Jones signed
1061491; 1061497; 1061515
4
a purchase agreement, on behalf of Birmingham Design Build,
LLP, with Coastal Boat to buy the property. The agreement
provided that the closing was set for May 27, 2005, and the
purchase
price
was
$4,750,000.
The
purchase
agreement
allowed
for an additional 30 days following the date of closing to
correct any defects in title that could be "readily
corrected." The purchase agreement further provided: "Coastal
Boat Storage LLC to retain first 460 feet from Cypress Street
then west Perdido Ave. to water's edge (Wolf Bay). Approx. 5
acres. Parcel # 65-03-05-0-000-02500." Hotz signed a check
for $500,000 in earnest money from the account of 32nd Street
Baptist Church, LLC, a limited liability corporation, whose
members were Beauchamp and Hotz.
On May 21, 2005, Beauchamp viewed the Wolf Bay property.
On May 24, 2005, Beauchamp stopped payment on the earnest-
money check. That same day, he sent a letter by facsimile to
Flanders and Mallet, among others, stating that he believed
that everyone involved in the marketing of the Wolf Bay
property had misrepresented the amount of land on the Wolf Bay
property that was suitable for development. On May 27, 2005,
the sellers and agents for Orange Beach Development Company
1061491; 1061497; 1061515
5
appeared for the closing. The buyers did not appear. On June
1, 2005, Coastal Boat's option to purchase the property
expired and was not renewed.
On October 25, 2005, the sellers sued the buyers, among
others, alleging breach of contract and fraud. The sellers
dismissed their fraud claim before trial, and the case was
tried only on the breach-of-contract claim.
Before the trial began, the sellers filed a motion in
limine, seeking to prohibit the buyers from presenting any
evidence regarding the number of acres on the Wolf Bay
property that were suitable for developing. The sellers
asserted that Beauchamp had stated in a deposition that he
believed almost all the property was wetlands and not suitable
for developing. However, the sellers argued that there had
been no expert testimony as to whether the Wolf Bay property
was composed mostly of wetlands, and they further argued that
the buyers viewed the Wolf Bay property and signed the
contract to purchase the property "as is," without any
contingencies, including a wetlands delineation performed by
the appropriate expert. The trial court granted the motion.
1061491; 1061497; 1061515
Hurricane Katrina was a devastating hurricane that made
1
landfall on the Gulf Coast as a category 3 hurricane.
6
At the trial, Rick Harris testified that he was familiar
with the real-estate market in Baldwin County and that the
Wolf Bay property was valuable because it was waterfront
property and there was not much undeveloped property left in
the area. He testified that another person had entered into
an agreement with the sellers to purchase the Wolf Bay
property before the buyers did and that that person had
included
a
30-day
"due diligence" contingency clause,
but that
the buyers' contract did not contain any contingencies.
Although Harris had not signed a listing-agent agreement with
Coastal Boat, he testified that Flanders and Mallett had
promised to pay him a commission if the Wolf Bay property
sold. Harris testified that 60-foot-long waterfront lots in
Baldwin County in May 2005 would have been worth an average of
$800,000 to $1,000,000 a piece. Harris testified that, as of
the date of trial, the Wolf Bay property had not sold,
although he stated that interest in the area had waned after
Hurricane Katrina struck the Gulf Coast.
1
1061491; 1061497; 1061515
7
Beauchamp testified that he had been involved in over 100
real-estate transactions on behalf of his family. He
testified that the four members of Birmingham Design Build,
LLP, were him, Hotz, Jones, and Denard, and that they were
each going to divide any profits they realized from the Wolf
Bay property equally. Beauchamp also testified that he
originally believed that he was buying a piece of property for
less than $5 million that he could "flip" and sell for $15
million. Hotz testified that she was a real-estate agent, and
Jones testified that he owns a small business that develops
real property and that he had been involved in approximately
50 real-estate transactions.
Dan Blackburn testified that he was an attorney licensed
to practice law in Alabama and that most of his practice
involved real estate. Blackburn was proffered and admitted
as a legal expert in real-estate law and subdivision
procedures in the Orange Beach area. Blackburn testified that
the City of Orange Beach has subdivision regulations and that
he was familiar with those regulations. Blackburn stated that
he had reviewed the purchase agreement at issue, along with
Coastal Boat's option contract, that he had reviewed a survey
1061491; 1061497; 1061515
8
of the Wolf Bay property, and that he had personally inspected
the Wolf Bay property. Blackburn testified that under the
purchase agreement as written, the proposed transaction
constituted a subdivision within the meaning of the Orange
Beach
subdivision
regulations
because,
under
those
regulations, any subdivision of land or any division of land,
without regard to the number of acres in the parcel, would
require that the property be presented to the planning
commission to be subdivided. Because Coastal Boat had
retained 460 feet of waterfront land on the Wolf Bay property,
Blackburn stated, the Wolf Bay property had to be subdivided.
Blackburn testified that under the terms of the purchase
agreement, the sellers had 30 days following closing to cure
any defect in the title, including the requirement that the
Wolf Bay property be subdivided. He opined that the sellers
could have obtained timely permission from the planning
commission to subdivide the Wolf Bay property because the
Orange Beach subdivision regulations included an expedited
procedure:
"Q. Alright. Now, would this subdivision [of
the Wolf Bay property] keep a closing from
occurring?
1061491; 1061497; 1061515
9
"A. No, sir.
"Q. Why, not?
"A. Well, a couple of reasons. Orange Beach
has a expedited procedure in their subdivision
regulations that specifically addresses a situation
like this one. It's for the purpose of dividing one
lot into two. And we're dealing with a 75- or 80-
acre tract where there was going to be roughly a 5-
acre tract held out of that. In my opinion, if the
parties had been aware of this provision, they could
have simply complied with the expedited procedure
for dividing one lot into two.
"Q. And would this have qualified for that
expedited procedure?
"A. I think it would have."
Blackburn stated that the planning commission would have
approved a request by the sellers to subdivide the Wolf Bay
property to carve out the five-acre tract being reserved. He
testified that although a planning commission has discretion
in zoning and other matters, it has no discretion concerning
a "plain vanilla" request for the subdivision of land so long
as the minimum requirements are met and that those
requirements were met in this case. Blackburn stated that the
sellers could have had the property subdivided within the 30
days provided for in the purchase agreement to correct any
title defects.
1061491; 1061497; 1061515
10
On cross-examination, Blackburn stated that his opinion
was based on the Orange Beach subdivision regulations adopted
by the Orange Beach Planning Commission in 1991, as revised
through January 2007. In a version of the Orange Beach
subdivision
regulations
that
included
revisions
up
to
December
2001, there was a 30-day filing period in the expedited
provisions.
The
following
exchange
occurred
between
Blackburn
and the buyers' counsel:
"Q. All right. If you would, point out the
particular subdivision regulation, can you tell if
there's an expedited provision in that particular
regulation?
"A. It's 3.01, where in the later version it's
numbered 3.1. Looks like there is 30-day filing
rule in the older version.
"Q. If you would, read that particular section
as to the requirements for filing for subdivision
with the City of Orange Beach in this particular
regulation.
"A. All associated documents must be filed 30
days prior to the second Tuesday of each month for
Planning Commission consideration at its regular
monthly meeting. The application must be filed so
that an advertisement of the proposed subdivision
can be posted in four conspicuous locations in the
city at least 15 days prior to the public hearing
before the Planning Commission, and be published
twice a week in a newspaper of general circulation.
1061491; 1061497; 1061515
11
"Q. In reading that particular regulation,
would it have been possible to have this property
subdivided even in the month of June?
"A. I think the question is which version was
in effect in 2005.
"Q. Okay.
"A. This one is only good through December
2001.
"Q. My question to you is under this provision,
would it have been possible to subdivide this
property prior to July of 2005?
"A. Yes. But it would have taken more notice
to the Planning Commission than under the later
version of the sub-regs."
Blackburn admitted that he did not know whether the copy of
the subdivision regulations that included revisions adopted
through January 2007 was in force and effect in May 2005, and
that under the 2001 regulations, it would have been impossible
for the sellers to have cured title by having the property
subdivided within 30 days following closing as provided for in
the purchase agreement. It was never established which
version of the Orange Beach subdivision regulations were in
place in May 2005.
Blackburn admitted that both the 2001 amendments and the
2007 amendments to the subdivision regulations imposed a fine
1061491; 1061497; 1061515
12
if property was sold as subdivided without final approval of
the subdivision from the planning commission, and he stated
that the regulations carried the same force as state law. He
also testified that contracts entered into in anticipation of
subdividing property are valid. Blackburn testified that in
order to remedy the defect in title (failing to have the Wolf
Bay property subdivided), the sellers could have conveyed the
entire parcel to the buyers and, at the same time, received a
contract from the buyers to sell the sellers the five acres
for a nominal amount, and then gotten subdivision approval at
a later date. Blackburn admitted that on May 27, 2005, the
date set for the closing, there was a defect in the title
created by the subdivision regulations. He also stated that
there would have been no need to go through the process of
subdividing the property so as to provide good title, because
the buyers had repudiated the purchase agreement and refused
to attend the closing.
Mallett testified that he knew the property had to be
subdivided but that he understood that it could be subdivided
after the sale. Flanders testified that he did nothing to
1061491; 1061497; 1061515
13
have the property subdivided and the subdivision approved by
the Orange Beach Planning Commission.
On April 13, 2007, the jury returned a verdict in favor
of the buyers. On May 1, 2007, the sellers filed a motion to
alter, amend, or vacate the judgment or, in the alternative,
for a new trial. They argued that the jury's verdict was
contrary to the evidence because, they said, the undisputed
evidence established that there was a valid contract among the
parties and that the buyers had repudiated the contract;
therefore, the sellers were under no duty to subdivide the
property. They further argued that the purchase agreement
contained no contingencies and that the buyers based their
repudiation on alleged fraud regarding the number of acres
suited for development, an issue the court removed from the
case by granting the motion in limine, not an alleged
inability of the sellers to perform under the purchase
agreement. The sellers also argued that the trial court erred
in not granting their motion for a judgment as a matter of law
made at the close of the buyers' case. On June 14, 2007, the
trial court entered the following order:
1061491; 1061497; 1061515
14
"Plaintiffs' May 1, 2007, motion to alter,
amend, or vacate the April 13, 2007 order of
judgment or, in the alternative, to grant a new
trial was argued on June 12, 2007. Upon careful
consideration, the court finds that the motion is
due to be, and hereby is, granted. The case shall
be set for a new trial as to all Defendants."
Hotz, Jones, and Beauchamp filed separate appeals. Those
appeals have been consolidated for the purpose of writing one
opinion.
Standard of Review
In Jawad v. Granade, 497 So. 2d 471 (Ala. 1986), this
Court established the standard of review it would apply when
a party appeals from an order granting a motion for a new
trial on the basis that the jury's verdict was "against the
great weight or preponderance of the evidence":
"[A]n order granting a motion for a new trial on the
sole ground that the verdict is against the great
weight or preponderance of the evidence will be
reversed for abuse of discretion where on review it
is easily perceivable from the record that the jury
verdict is supported by the evidence."
497 So. 2d at 477.
Where a motion for a new trial is granted for reasons
"other than, or in addition to, a finding that the verdict
[was] against the great weight or preponderance of the
evidence," this Court applies a standard of review that is
1061491; 1061497; 1061515
15
more deferential to the trial court's determination that a new
trial is warranted. Curtis v. Faulkner Univ., 575 So. 2d
1064, 1065 (Ala. 1991). Where a trial court grants a motion
for a new trial for grounds other than, or in addition to,
that the verdict is against the great weight of the evidence,
this Court's review is limited:
"'It is well established that a ruling on a
motion for a new trial rests within the sound
discretion of the trial judge. The exercise of that
discretion carries with it a presumption of
correctness, which will not be disturbed by this
Court unless some legal right is abused and the
record plainly and palpably shows the trial judge to
be in error.'"
Kane v. Edward J. Woerner & Sons, Inc., 543 So. 2d 693, 694
(Ala. 1989) (quoting Hill v. Sherwood, 488 So. 2d 1357, 1359
(Ala. 1986)).
Discussion
The first issue that must be addressed is which standard
of review should be applied to the trial court's order
granting the sellers' motion for a new trial. The buyers
contend that the only ground stated in the sellers' motion for
a new trial was that the verdict was against the great weight
of the evidence, and, they argue, because the trial court did
not state a reason for granting the motion, this Court must
1061491; 1061497; 1061515
16
apply the standard set out in Jawad, supra. The sellers
contend that because a trial court has the inherent power to
grant a motion for a new trial on its own, the trial court
could
have
determined
that
the
buyers'
continued
violations
of
the motion in limine prohibiting the parties from mentioning
the condition of the land warranted a new trial.
In Scott v. Farnell, 775 So. 2d 789 (Ala. 2000), the
plaintiff filed a motion for a new trial on the sole ground
that the verdict was against the great weight of the evidence,
and the trial court granted the motion. This Court applied
the standard set out in Jawad because the plaintiff did not
state any other ground in her motion for a new trial. Because
the sellers stated no ground other than that the verdict was
against the great weight of the evidence, we apply the
standard of review set out in Jawad. In reviewing the trial
court's decision, we "must review the evidence in the light
most favorable to the prevailing party and must indulge all
reasonable inferences the jury was free to draw." Floyd v.
Broughton, 664 So. 2d 897, 900 (Ala. 1995). Based upon the
foregoing,
we
must
determine
whether
it
is
"easily
perceivable" from the record that the jury verdict in favor of
1061491; 1061497; 1061515
17
the buyers is supported by the evidence when that evidence is
viewed in the light most favorable to the buyers and indulging
all reasonable inferences that the jury was free to draw.
In order to establish a breach of contract, the sellers
had to show "'(1) the existence of a valid contract binding
the parties in the action, (2) [their] own performance under
the contract, (3) the defendant[s'] nonperformance, and (4)
damages.'" State Farm Fire & Cas. Co. v. Slade, 747 So. 2d
293, 303 (Ala. 1999)(quoting Southern Med. Health Sys., Inc.
v. Vaughn, 669 So. 2d 98, 99 (Ala. 1995)). In Winkleblack v.
Murphy, 811 So. 2d 521, 529 (Ala. 2001), a plurality of this
Court stated, and we agree, that "in order to establish that
a defendant is liable for a breach of a bilateral contract, a
plaintiff must establish that he has performed, or that he is
ready, willing, and able to perform under the contract." See
also Moss v. King, 186 Ala. 475, 65 So. 180 (1914)(holding
that the plaintiff must show his readiness and ability to
perform under the contract, even when the defendant has
repudiated the contract).
The sellers presented undisputed evidence of the
existence of a valid contract, nonperformance by the buyers,
1061491; 1061497; 1061515
18
and damages. The question is whether it is easily perceivable
from the record that the sellers were ready, willing, and able
to perform under the purchase agreement. The sellers
presented the testimony of Dan Blackburn, an expert in real-
estate law in the Orange Beach area. Blackburn originally
testified that the sellers could comply with the Orange Beach
subdivision regulations and could have had the Wolf Bay
property
subdivided
within
the
30-day
period
following
closing
provided in the purchase agreement to correct any defects in
title. However, Blackburn admitted that the subdivision
regulations he was interpreting included amendments up to
2007. He also admitted that under the subdivision regulations
that included amendments only through 2001 there would not
have been enough time for the sellers to have the Wolf Bay
property subdivided within the 30-day period provided in the
purchase agreement. Under the particular facts of this case,
this created a question for the jury as to which subdivision
regulations were in place in May 2005. Because it is easily
perceivable from the record that the jury could have
determined that the subdivision regulations that included the
amendments through 2001 were in operation in May 2005, then
1061491; 1061497; 1061515
19
there is evidence in the record to support the jury's verdict
in favor of the buyers. That is, there is evidence from which
the jury could have determined that the sellers were not
ready, willing, and able to perform under the purchase
agreement because there was insufficient time for them to have
the property subdivided within 30 days after the closing, the
period provided for in the purchase agreement to correct any
defect in title. It was the jury's job to consider the
conflicting evidence from the sellers and the buyers, and its
conclusion that the sellers were not ready, willing, and able
to perform was easily perceivable from the record.
The sellers argue that when Beauchamp stopped payment on
the earnest-money check and notified the parties that he
believed there had been a misrepresentation as to the amount
of land on the Wolf Bay property that was suitable for
development, he repudiated the purchase agreement and his
repudiation excused the sellers of their obligation to prove
that they were ready, willing, and able to perform. The
general rule with respect to repudiation is that when one
party repudiates a contract, the nonrepudiating party is
discharged from its duty to perform. HealthSouth Rehab. Corp.
1061491; 1061497; 1061515
20
v. Falcon, 799 So. 2d 177 (Ala. 2001). However, the
nonrepudiating
party
cannot
recover
damages
for
the
repudiation of the contract if he was unable to perform his
obligation. See Restatement (Second) of Contracts § 254
(1981)("A party's duty to pay damages for total breach by
repudiation is discharged if it appears after the breach that
there would have been a total failure by the injured party to
perform his return promise."); see also 9 A. Corbin, Corbin on
Contracts § 978, at 818-19 (Interim ed. 2002)("In an action
for breach by an unconditional repudiation it is still a
condition precedent to the plaintiff's right to a judgment for
damages that he should have the ability to perform all such
conditions. If he could not or would not have performed the
substantial equivalent for which the defendant's performance
was agreed to be exchanged, he is given no remedy in damages
for
the
defendant's
non-performance
or
repudiation.
Of
course,
the
willingness
and ability
that remains a
condition precedent
in spite of the defendant's repudiation, is willingness and
ability to perform if there had been no repudiation. The
defendant's wrongful repudiation justifies the plaintiff in
taking him at his word and at once taking steps that may make
1061491; 1061497; 1061515
21
subsequent
performance
impossible.
The
willingness
and
ability
to perform need not continue after the repudiation; it is
merely required that they should have existed before the
repudiation and that the plaintiff would have rendered the
agreed performance if the defendant had not repudiated."). In
short, if the
nonrepudiating
party
was incapable of performing
anyway, then he cannot recover damages for the repudiation.
In Moss v. King, 186 Ala. 475, 482, 65 So. 180, 182-83
(1914), this Court stated:
"It is the theory of plaintiff, however, that
the allegation of defendants' complete repudiation
of the contract, without giving plaintiff a
reasonable
opportunity
to
comply
with
his
obligations
thereunder,
dispenses with
the otherwise
necessary allegation of plaintiff's readiness and
ability to perform.
"....
"But we are aware of no authority which holds
that the plaintiff need not show his readiness and
ability to perform, even when the defendant has
repudiated
the
contract.
On
the
contrary,
affirmative authority is not lacking.
"In an action for damages for breach of an
agreement to sell and deliver flour, with the
allegation that the defendant refused to comply with
his contract and refused to ship the flour, an
instruction to the jury that, 'there being no
evidence before them that plaintiff had offered to
pay, or was able to pay, for the flour, before
1061491; 1061497; 1061515
22
bringing this suit, they must find for the
defendant,' was held correct. ... There was no
objection to the complaint for omitting the
allegation of ability to perform, but proof of it
was held essential."
(Citations omitted.) In the present case, there was evidence
indicating that the sellers could not have performed their
contractual obligations even if Beauchamp had not repudiated
the purchase agreement.
Because the jury's verdict was not against the great
weight or preponderance of the evidence, we conclude that the
trial court erred in granting the sellers' motion for a new
trial. We reverse the order granting a new trial and remand
the cause for the trial court to vacate that order.
REVERSED AND REMANDED WITH DIRECTIONS.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | September 5, 2008 |
58e4f971-3e12-4245-a48b-4900910e05c1 | Ex parte Phil Owens Used Cars, Inc. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Harrison Johnson, Jr., as administrator of the estate of Harrison Johnson, Sr., et al. v.Bridgestone Firestone North America Tire, L.L.C., et al.) | N/A | 1060596 | Alabama | Alabama Supreme Court | REL: 08/01/2008
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
_________________________
1060596
_________________________
Ex parte Phil Owens Used Cars, Inc.
PETITION FOR WRIT OF MANDAMUS
(In re: Harrison Johnson, Jr., as administrator of the
estate of Harrison Johnson, Sr., et al.
v.
Bridgestone Firestone North America Tire, L.L.C., et al.)
(Bullock Circuit Court, CV-05-111)
PER CURIAM.
1060596
2
Phil Owens Used Cars, Inc. ("Owens Used Cars"), petitions
for a writ of mandamus directing the Bullock Circuit Court to
vacate its order denying Owens Used Cars' motion to dismiss
for lack of personal jurisdiction and to enter an order
granting the motion to dismiss. We grant the petition.
The complaint in the underlying action alleges that on
October 5, 2003, Frank Johnson, Sr. ("Frank"), Harrison
Johnson, Sr. ("Harrison"), and several of their relatives were
traveling in Frank's 1985 Chevrolet conversion van when one of
the tires on the van rapidly deflated. Frank, who was
apparently driving, lost control of the van. The van left the
roadway and overturned. The roof of the van detached from the
remainder of the vehicle; the seat-belt mechanisms in the van
failed; and the occupants were ejected. As a result of the
accident, Frank and Harrison were killed and the other
passengers in the vehicle were injured.
The testatrix of Frank's estate, the administrator of
Harrison's estate, and the other passengers (hereinafter
collectively referred to as "the plaintiffs") filed a
complaint in the Bullock Circuit Court against General Motors
Corporation,
which
designed and manufactured the
van;
1060596
3
Bridgestone Firestone North America Tire, L.L.C., which
manufactured the tires that were on the van at the time of the
accident; Owens Used Cars, which was one of the previous
owners of the van and which performed conversion work on the
van; and others. The numerous claims in the plaintiffs'
complaint all relate to the October 2003 accident and all
sound in tort.
As to Owens Used Cars, the complaint alleges that it
"is a corporation organized and existing under the
laws of the State of Georgia, with its principal
place of business in Lavonia, Georgia. Defendant
[Owens Used Cars] has sufficient contacts with the
State of Alabama to allow this Court to exercise
jurisdiction over it and may be served through its
registered agent for service of process [in] ...
Lavonia, Georgia."
The complaint further alleges that "[a]t the time the subject
... Van was placed into the stream of commerce the vehicle was
defective and unreasonably dangerous as those terms are
defined by Alabama law and specifically the Alabama Extended
Manufacturer's Liability Doctrine in that it did not provide
reasonable occupant protection in a foreseeable collision."
It further alleges that "[t]he ... Van was defective in its
design, manufacture and/or in the warnings that accompanied
it."
1060596
4
In February 2006, Owens Used Cars filed a motion to
dismiss it as a defendant on the ground that the trial court
lacked personal jurisdiction over it. Owens Used Cars argued
that it did not have sufficient minimum contacts with the
State of Alabama for the trial court to assert personal
jurisdiction over it and that it had not "purposefully availed
itself of the privilege of conducting activities" in Alabama.
The motion was supported, in part, by an affidavit from Phil
Owens, president of Owens Used Cars. Phil Owens's affidavit
stated, in part:
"4. [Owens Used Cars] is a Georgia corporation.
It has always been a Georgia corporation. [Owens
Used Cars] has never been incorporated in the State
of Alabama.
"5. The principle place of business of [Owens
Used Cars] is ... Lavonia, Georgia. That is the
only business location of [Owens Used Cars].
"6. [Owens Used Cars] has never had an office or
business
location
in
the
State
of
Alabama.
Furthermore, [Owens Used Cars] has never employed
anyone who was a resident of the State of Alabama.
"7. [Owens Used Cars] has never been registered
to do business in the State of Alabama, and the
dealership does not do business by agent in the
State of Alabama.
"8. [Owens Used Cars] does not, and has not,
advertised goods and/or services in the State of
Alabama. Likewise, [Owens Used Cars] has never
1060596
5
owned any real or personal property located in the
State of Alabama.
"9. [Owens Used Cars] does not solicit business
or otherwise engage in any other persistent course
of conduct or business in the State of Alabama.
Accordingly, [Owens Used Cars] does not derive
substantial revenue from goods and/or services used
or consumed in the State of Alabama, nor from
services rendered in the State of Alabama.
"10. [Owens Used Cars] purchased in 1985 a
[General Motors] Van made the basis of this
litigation from Maypole Chevrolet, Inc., located in
Toccoa, Georgia. ... [Owens Used Cars] performed
work upon the van and then sold the van to O & M
Motor Company, located in the State of Georgia.
[Owens Used Cars] did not sell, lease, or otherwise
enter into a contract for the purchase of the van
made the basis of the case with any of the named
plaintiffs. Likewise, [Owens Used Cars] did not
know where the vehicle would be sold by O & M ...
(such as in the State of Georgia or in any other
state.)"
The plaintiffs opposed Owens Used Cars' motion, relying
on Phil Owens's deposition testimony, hereinafter discussed,
and Owens Used Cars' ledger records from 1985. The 1985
ledger records reflect that Owens Used Cars sold the van to O
& M Motor Company ("O & M") in June 1985 and that it sold
numerous other conversion vans to O & M in 1985. The ledger
records also reflect that in 1985 Owens Used Cars delivered
approximately 30 vans to 2 Alabama automobile dealerships,
1060596
Phil Owens stated in his deposition testimony that Owens
1
Used Cars' other business records were destroyed in 2001, when
it sold the property on which it had performed its conversion-
van work.
The plaintiffs assert, based on an affidavit from Farrel
2
Bruce (a former employee of Ray Hughes Chevrolet, an
automobile dealership in southeast Alabama), that in 1985
Owens Used Cars delivered an additional 21 vans to Ray Hughes
Chevrolet, a third Alabama automobile dealership, and that,
based on the fact that the names of other dealerships appear
both on the ledger records and on a printout of an Internet
search result attached to the plaintiffs' brief to this Court,
Owens Used Cars delivered automobiles to other Alabama
automobile dealerships as well. It does not appear, however,
that either Bruce's affidavit, which bears a style for this
Court and not the trial court, or the Internet search result
was presented to the trial court. Phil Owens did testify in
his deposition that, in addition to the two dealerships
discussed in the text "there's probably some more [Alabama
dealerships that purchased vans from Owens Used Cars], but I
don't recall no more." In light of the foregoing and for
purposes of resolving the personal-jurisdiction issue, we have
considered
the
sales
to
the
two
Alabama
dealerships
6
Bill DeLoach Lincoln Mercury and Cooper Chevrolet. The
1
ledger records indicate that Owens Used Cars delivered vans to
one or both of the foregoing Alabama dealerships in all but
one month of that year; in some months, sales to the two
Alabama dealerships represented approximately five percent of
Owens Used Cars' van sales for the month. The record also
contains evidence from which the trial court properly could
have concluded that "probably more" than the above-described
vans were sold by Owens Used Cars in Alabama.2
1060596
specifically identified by Phil Owens and the fact that the
trial court could have properly concluded that there were
"probably more" sales to Alabama dealerships; we have not
considered information from Bruce's affidavit or the Internet
search result.
7
In addition, we note that Phil Owens testified as follows
in his deposition:
1. That Owens Used Cars had "done business with
people in Alabama" and that its "contacts with
people
in
Alabama
came
about
through
[its]
conversion van business";
2. That Owens Used Cars "first learned of Alabama
dealers
through
[its] conversion van business
through Atlanta Auto Auction";
3. That the Alabama automobile dealers initially
"bought vans from [Owens Used Cars] at the Atlanta
Auto Auction";
4. That Owens Used Cars sold more than 10
conversion vans to Alabama dealers through the
Atlanta Auto Auction alone and that those sales
resulted from more than one transaction;
5. That at the time of Phil Owens's deposition,
Owens Used Cars was in the "used car business" and
that it had been in the used car business since
1975;
6. That ... Owens Used Cars continued to conduct
its conversion-van business until 1992;
7. That after Alabama automobile dealers purchased
conversion vans from Owens Used Cars through the
Atlanta Auto Auction, they began "call[ing] me and
tell[ing] me what kind of van they wanted, and we
would convert it for them" and ship it to Alabama;
1060596
8
8. That Owens Used Cars had been a defendant in a
lawsuit in Alabama because its "truck driver got
involved" in an accident while he was delivering a
conversion van to an Alabama automobile dealer.
9. That O & M, a Columbus, Georgia, dealer, was a
"regular customer" of Owens Used Cars.
Specifically, as to Owens Used Cars' conversion-van sales
to Alabama automobile dealerships, Phil Owens testified, in
part:
"Q.
When is the last time you took a van over to
Atlanta for sale at the auction?
"A. Approximately 1988.
"Q. 1988?
"A. '87, '88.
"Q.
'87, '88. And in that 1987 or '88 time frame,
did any of these vans end up in Alabama?
"[Phil Owens's counsel]: When you say 'wind
up' [sic], what do you mean?
"Q. Well, you know, did you sell any of the vans to
dealers in Alabama?
"[Phil
Owens's
counsel]:
Through
the
auction in Atlanta?
"[Plaintiffs'
counsel]:
Through
the
auction
in Atlanta.
"A.
It would have been, yes.
"Q. Could have been. Did you ever deal directly
with any dealers in Alabama?
1060596
9
"A.
No.
"Q.
All your dealings with Alabama people came
about through the auction in Atlanta?
"A. Well,
they
would
call
me
afterwards and
purchase.
"Q. They would call you afterwards and purchase?
"A.
Yes.
"Q. Tell me how that all worked?
"A. They'd call me and tell me what kind of van
they wanted and we would convert it for them.
"Q.
Okay. So dealers from Alabama would call you
up and say I want a conversion van based on
plan X?
"A.
Yes.
"Q.
And you would convert it and ship it to
Alabama?
"A.
Yes.
"Q.
Now, is this in addition to vans that you would
take over to the auction and sell?
"A. Yes."
Also, as to O & M, the following colloquy appears in Phil
Owens's deposition testimony:
"Q. And it would be expected by you, wouldn't it,
that a dealer in Columbus, Georgia, might well sell
one of your vans to somebody in Alabama.
"A. I have no idea where he'd sell it.
1060596
10
"Q. Exactly. He might well sell it right across
the river in Alabama.
"A. Being as close as he was, yes.
"Q. Same deal with --
"A. South Carolina.
"Q. –- the location –- Might wind up in South
Carolina?
"A. Yes.
"Q.
And
that's
not
something
that
would
be
unexpected; correct?
"A. No.
"Q. As a matter of fact, you'd expect that to
happen; right?
"A. Possibly."
In November 2006, the trial court entered an order
denying Owens Used Cars' motion to dismiss the claims against
it. The trial court did not state the grounds upon which it
based its denial of the motion. Owens Used Cars has
petitioned this Court for a writ of mandamus directing the
trial court to vacate its November 2006 order and to enter an
order dismissing the plaintiffs' claims against Owens Used
Cars.
Standard of Review
1060596
Courts have struggled with the fact-dependent nature of
3
the personal-jurisdiction inquiry for some time. As Judge
Learned Hand lamented when he attempted to apply the
"presence" test for personal jurisdiction, "[i]t is quite
impossible to establish any rule from the decided cases; we
must step from tuft to tuft across the morass." Hutchinson v.
Chase & Gilbert, Inc., 45 F.2d 139, 142 (4th Cir. 1930); see,
e.g., Echeverry v. Kellogg Switchboard & Supply Co., 175 F.2d
900, 902-03 (2d Cir. 1949) ("The published decisions on what
constitutes 'doing business' in a State by a foreign
corporation are literally legion. Yet, in spite of this vast
array of judicial authority, border-line cases still have to
be decided each on its own peculiar set of facts, which too
often cannot be fitted into a stereotyped pattern. In this
field,
realism,
not formalism,
should be dominant; the
problem
must be solved in the light of commercial actuality, not in
the aura of juristic semantics.").
11
It is well settled that
"[m]andamus 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 Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).
Also, this Court has held that a petition for a writ of
mandamus can be used to challenge the denial of a motion to
dismiss for lack of personal jurisdiction. Ex parte McInnis,
820 So. 2d 795, 798 (Ala. 2001).
The issue of personal jurisdiction "'stands or falls on
the unique facts of [each] case.'" Ex parte I.M.C., Inc.,
3
1060596
12
485 So. 2d 724, 725 (Ala. 1986) (quoting and adopting trial
court's order). "An appellate court considers de novo a trial
court's judgment on a party's motion to dismiss for lack of
personal jurisdiction." Elliott v. Van Kleef, 830 So. 2d 726,
729 (Ala. 2002) "In considering a Rule 12(b)(2), Ala. R.
Civ. P., motion to dismiss for want of personal jurisdiction,
a court must consider as true the allegations of the
plaintiff's complaint not controverted by the defendant's
affidavits ...." Ex parte McInnis, 820 So. 2d at 798. If,
however,
"the defendant makes a prima facie evidentiary
showing that the Court has no personal jurisdiction,
'the plaintiff is then required to substantiate the
jurisdictional allegations in the complaint by
affidavits or other competent proof, and he may not
merely reiterate the factual allegations in the
complaint.'"
Ex parte Covington Pike Dodge, Inc., 904 So. 2d 226, 229-30
(Ala. 2004) (quoting Mercantile Capital, LP v. Federal
Transtel, Inc., 193 F. Supp. 2d 1243, 1247 (N.D. Ala. 2002)).
"'"[W]here
the
plaintiff's
complaint
and
the
defendant's affidavits conflict, the ... court must
construe all reasonable inferences in favor of the
plaintiff."' Robinson [v. Giarmarco & Bill, P.C.],
74 F.3d [253,] 255 [(11th Cir. 1996)] (quoting
Madara v. Hall, 916 F.2d 1510, 1514 (11th Cir.
1990)). 'For purposes of this appeal [on the issue
of in personam jurisdiction] the facts as alleged by
1060596
13
the ... plaintiff will be considered in a light most
favorable to him [or her].' Duke v. Young, 496
So. 2d 37, 38 (Ala. 1986)."
Ex parte McInnis, 820 So. 2d at 798.
Alabama's Long-Arm Rule
The present case involves service of process on a foreign
defendant pursuant to Alabama's long-arm rule. The long-arm
rule reads as follows:
"An appropriate basis exists for service of process
outside of this state upon a person or entity in any
action in this state when the person or entity has
such contacts with this state that the prosecution
of the action against the person or entity in this
state is not inconsistent with the constitution of
this state or the Constitution of the United States
...."
Rule 4.2(b), Ala. R. Civ. P. In accordance with the plain
language of Rule 4.2, this Court has stated that "[t]his rule
extends the personal jurisdiction of Alabama courts to the
limit of due process under the United States and Alabama
Constitutions." Hiller Invs., Inc. v. Insultech Group, Inc.,
957 So. 2d 1111, 1115 (Ala. 2006).
Due Process and Personal Jurisdiction
In International Shoe Co. v. State of Washington, 326
U.S. 310 (1945), the Supreme Court discussed its view of the
"limits of due process" under the United States Constitution
1060596
"A writ commanding the sheriff to take the defendant into
4
custody to ensure that the defendant will appear in court."
Black's Law Dictionary 221 (8th ed. 2004).
14
in the context of out-of-state service of process on a foreign
defendant. The Supreme Court stated:
"Historically the jurisdiction of courts to
render judgment in personam is grounded on their de
facto power over the defendant's person. Hence his
presence within the territorial jurisdiction of
court was prerequisite to its rendition of a
judgment personally binding him. But now that the
capias ad respondendum[ ] has given way to personal
4
service of summons or other form of notice, due
process requires only that in order to subject a
defendant to a judgment in personam, if he be not
present within the territory of the forum, he have
certain minimum contacts with it such that the
maintenance of the suit does not offend 'traditional
notions of fair play and substantial justice.'"
326 U.S. at 316 (citation omitted) (quoting Milliken v. Meyer,
311 U.S. 457, 463 (1940)); see also Sudduth v. Howard 646 So.
2d 664, 667 (Ala. 1994) ("'"[W]hat is required is that the
out-of-state resident have 'some minimum contacts with this
state [so that], under the circumstances, it is fair and
reasonable to require the person to come to this state to
defend an action.'"'" (quoting Knowles v. Modglin, 553 So. 2d
563, 565 (Ala. 1989), quoting in turn other cases)).
The Supreme Court continued in International Shoe:
1060596
15
"It is evident that the criteria by which we
mark the boundary line between those activities
which justify the subjection of a corporation to
suit, and those which do not, cannot be simply
mechanical or quantitative. The test is not merely,
as has sometimes been suggested, whether the
activity, which the corporation has seen fit to
procure through its agents in another state, is a
little more or a little less. Whether due process
is satisfied must depend rather upon the quality and
nature of the activity in relation to the fair and
orderly administration of the laws which it was the
purpose of the due process clause to insure. That
clause does not contemplate that a state may make
binding a judgment in personam against an individual
or corporate defendant with which the state has no
contacts, ties, or relations.
"But to the extent that a corporation exercises
the privilege of conducting activities within a
state, it enjoys the benefits and protection of the
laws of that state. The exercise of that privilege
may give rise to obligations; and, so far as those
obligations arise out of or are connected with the
activities within the state, a procedure which
requires the corporation to respond to a suit
brought to enforce them can, in most instances,
hardly be said to be undue."
326 U.S. at 319-20 (citations omitted; emphasis added).
In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286,
297 (1980), the Supreme Court further explained:
"When a corporation 'purposefully avails itself
of the privilege of conducting activities within the
forum State,' Hanson v. Denckla, 357 U.S. [235] at
253 [(1958)], it has clear notice that it is subject
to suit there, and can act to alleviate the risk of
burdensome litigation .... Hence if the sale of a
product of a manufacturer or distributor ... is not
1060596
16
simply an isolated occurrence, but arises from the
efforts of the manufacturer or distributor to serve,
directly or indirectly, the market for its product
in other States, it is not unreasonable to subject
it to suit in one of those States if its allegedly
defective merchandise has there been the source of
injury to its owners or to others."
(Emphasis added.)
In Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408 (1984), the Supreme Court further refined its
personal-jurisdiction analysis by discussing two bases on
which personal jurisdiction might rest. First, the Court
stated:
"When a controversy is related to or 'arises out of'
a defendant's contacts with the forum, the Court has
said that a 'relationship among the defendant, the
forum,
and
the
litigation'
is
the
essential
foundation of in personam jurisdiction. Shaffer v.
Heitner, 433 U.S. 186, 204 (1977)."
466 U.S. at 414 (footnote omitted). The Court further noted:
"It has been said that when a State exercises
personal jurisdiction over a defendant in a suit
arising out of or related to the defendant's
contacts with the forum, the State is exercising
'specific jurisdiction' over the defendant. See Von
Mehren & Trautman, Jurisdiction to Adjudicate: A
Suggested Analysis, 79 Harv. L. Rev. 1121, 1144-1164
(1966)."
466 U.S. at 414 n.8 (emphasis added).
Second, the Supreme Court stated:
1060596
17
"Even when the cause of action does not arise
out of or relate to the foreign corporation's
activities in the forum State, due process is not
9
offended by a State's subjecting the corporation to
its
in
personam
jurisdiction
when
there
are
sufficient contacts between the State and the
foreign
corporation.
Perkins
v.
Benguet
Consolidated Mining Co., 342 U.S. 437 (1952); see
Keeton v. Hustler Magazine, Inc., 465 U.S. 770,
779-780 (1984).
______________
" When a State exercises personal jurisdiction
9
over a defendant in a suit not arising out of or
related to the defendant's contacts with the forum,
the State has been said to be exercising 'general
jurisdiction' over the defendant. See Brilmayer, How
Contacts Count: Due Process Limitations on State
Court Jurisdiction, 1980 S. Ct. Rev. 77, 80-81; Von
Mehren & Trautman, 79 Harv. L. Rev., at 1136-1144;
Calder v. Jones, 465 U.S. [783] at 786 [(1984)]."
466 U.S. at 414-16; see also Burger King Corp. v. Rudzewicz,
471 U.S. 462, 475 (1985); Ex parte Covington Pike Dodge, Inc.,
supra.
Owens Used Cars argues (1) that it did not have
continuous and systematic contacts with Alabama so as to allow
for general jurisdiction, and (2) that the plaintiffs' causes
of action do not arise out of Owens Used Cars' contacts with
Alabama so as to confer specific jurisdiction. We agree.
As to general jurisdiction, the materials before this
Court indicate that Owens Used Cars' only contacts with
1060596
18
Alabama occurred during the mid-1980s. Although the level of
those mid-1980s contacts might have been sufficient to fall
within the parameters for general jurisdiction that are
reflected in some of this Court's precedents, see, e.g., Ex
parte Lagrone, 839 So. 2d 620 (Ala. 2002); see also Ex parte
McInnis, 820 So. 2d at 810 (Lyons, J., writing specially,
joined by See and Brown, JJ.), we conclude that those contacts
are too remote in time from the accrual of the plaintiffs'
causes of action and the filing of the complaint to form a
constitutionally satisfactory basis for general jurisdiction.
Compare Ex parte Covington Pike Dodge, 904 So. 2d at 231
("Daniels's affidavit establishes that at the time of the
accident that is the subject of this litigation, Covington
Pike did no business in the State of Alabama and had no
presence or contacts in Alabama." (emphasis added)), with,
e.g., Metropolitan Life Ins. Co. v. Robertson-Ceco Corp., 84
F.3d 560, 569-70 (2d Cir. 1996) ("[O]ur review of general
jurisdiction cases reveals that contacts are commonly assessed
over a period of years prior to the plaintiff's filing of the
complaint. ... In general jurisdiction cases, district
courts should examine a defendant's contacts with the forum
1060596
Whether, for purposes of general jurisdiction, the
5
pertinent time period for reviewing a defendant's contacts
with the forum state should be measured in relation to the
accrual of a plaintiff's cause of action, see Ex parte
Covington Pike Dodge, supra, or in relation to the filing of
the complaint, see Metropolitan Life, supra, does not appear
to have been at issue in Ex parte Covington Pike Dodge. See
also
generally
Charles
W.
Rhodes,
Clarifying
General
Jurisdiction, 34 Seton Hall L. Rev. 807, 893-98 (2004)
(proposing, as to general jurisdiction, that a proper
understanding of the principles underlying the Supreme Court's
post-International Shoe precedents would, in part, use the
following test: "[I]f the court determines the defendant's
forum
conduct
includes
those
qualitatively
substantial
activities that may define a commercial domiciliary, the court
should next discern whether such activities occurred in a
comparable frequency to at least some local businesses over a
reasonable period of time preceding the service of summons.
If so, the requisite minimum contacts exist for general
jurisdiction."). In order to decide the present case, we need
not decide whether Ex parte Covington Pike Dodge or
Metropolitan Life represents the correct statement of law as
to the proper time at which to assess the defendant's contacts
for purposes of general jurisdiction; Owens Used Cars'
contacts are insufficient under either approach.
19
state
over
a
period
that
is
reasonable
under
the
circumstances--up to and including the date the suit was
filed--to assess whether they satisfy the 'continuous and
systematic' standard. The determination of what period is
reasonable in the context of each case should be left to the
court's discretion." (footnote omitted; emphasis added)).5
Indeed, the plaintiffs have directed us to no case in which a
court found general jurisdiction where there was a temporal
1060596
20
gap between the defendant's contacts and the accrual of the
cause of action or the filing of the complaint that was as
extensive as the approximately 15-year temporal gap in the
present case. Our research has discovered no such case.
Likewise, as to specific jurisdiction, although in the
mid-1980s Owens Used Cars produced conversion vans based on
specifications
it
received
from
Alabama
automobile
dealerships
and employees of Owens Used Cars apparently delivered the
conversion vans to those dealerships in Alabama, see Asahi
Metal Indus. Co. v. Superior Court of California, 480 U.S.
102, 112 (1987)(plurality opinion)("Additional conduct of the
defendant may indicate an intent or purpose to serve the
market in the forum State, for example, designing the product
for the market in the forum State ...." (emphasis added)), the
plaintiffs' causes of action do not "arise out of or relate
to" alleged defects in one of the vans Owens Used Cars
produced specifically for the Alabama market. See Burger King
Corp., 471 U.S. at 472-73 (noting that a defendant must have
"fair warning" that his contacts with a state might subject
him to the jurisdiction of that state's courts: "Where a
forum seeks to assert specific jurisdiction over an out-of-
1060596
As discussed above, the materials before this Court
6
reflect that the only activity Owens Used Cars directed at
Alabama was in response to specific orders from Alabama
businesses for vans; the materials reflect no relationship
between such activities and the plaintiffs' causes of action.
21
state defendant who has not consented to suit there, th[e]
'fair warning' requirement is satisfied if the defendant has
'purposefully directed' his activities at residents of the
forum, ... and the litigation results from alleged injuries
that 'arise out of or relate to' those activities." (emphasis
added)). Instead, the plaintiffs' causes of action "arose out
of and relate to" alleged defects in a van that Owens Used
Cars sold in Georgia to O & M, a Georgia automobile
dealership, which in turn sold the van to Frank, an Alabama
resident. As to the van at issue, the plaintiffs failed to
present any evidence indicating (1) that Owens Used Cars
conducted any marketing activities in Alabama that might have
enticed Frank to purchase the van or (2) that O & M conducted
6
marketing activities in Alabama and that Owens Used Cars had
sufficient knowledge of or control over such Alabama marketing
activities on O & M's part so as to support a finding that
Owens Used Cars sought to serve the Alabama market through the
sale of its vans to O & M. See World-Wide Volkswagen Corp.,
1060596
22
444 U.S. at 297; Burger King Corp., supra; Ex parte Troncalli
Chrysler Plymouth Dodge, Inc., 876 So. 2d 459 (Ala. 2003).
Conclusion
Based on the foregoing, Owens Used Cars' petition for a
writ of mandamus is hereby granted. The trial court is
directed to vacate its order denying Owens Used Cars' motion
to dismiss for lack of personal jurisdiction and to enter an
order granting the motion to dismiss, without prejudice.
Also, the plaintiffs have argued that the petition for a
writ of mandamus is frivolous, and they have requested that we
award them attorney fees and expenses. We deny this request.
PETITION GRANTED; WRIT ISSUED.
Woodall, Stuart, Bolin, and Parker, JJ., concur.
Murdock, J., concurs in the rationale in part and concurs
in the result.
Cobb, C.J., and See, Lyons, and Smith, JJ., concur in the
result.
1060596
23
MURDOCK, Justice (concurring in the rationale in part and
concurring in the result).
Specific Jurisdiction
As to the issue of specific jurisdiction, I concur with
the main opinion that the plaintiffs failed to establish that
their causes of action arose out of or were related to
activities of Owens Used Cars that occurred in Alabama or that
were directed at Alabama residents. This is a close case. On
the one hand, the evidence does fall short -- perhaps, just
short -- of establishing the elements of specific jurisdiction
as articulated in prior cases and repeated in the main
opinion. On the other hand, the evidence in this case does
not intuitively lead to the result reached. Owens Used Cars
engaged in not incidental activity in Alabama of precisely the
same nature, and during the same time frame, as that activity
in which it engaged just across the Alabama line in Georgia
that led to the sale of the van in question to an Alabama
resident and, in turn, to the injuries suffered in Alabama by
that resident and the plaintiffs. Phil Owens testified that
he "possibly" would "expect" these activities in Georgia to
result in the sale of vans, such as the one in question, to
1060596
24
Alabama residents. Such facts, however, do not fall within
the elements of specific jurisdiction that have been carved
out to date in prior decisions. Neither party has argued for
a modification of the elements of specific jurisdiction -- or
for a hybrid of general and specific jurisdiction -- to be
applied to determine whether the assertion of personal
jurisdiction in this case would comport with constitutional
standards of fairness. See, e.g., Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.10 (1984) ("Absent
any briefing on the issue, we decline to reach the questions
(1) whether the terms 'arising out of' and 'related to'
describe different connections between a cause of action and
a defendant's contacts with a forum, and (2) what sort of tie
between a cause of action and a defendant's contacts with a
forum is necessary to a determination that either connection
exists. Nor do we reach the question whether, if the two
types of relationship differ, a forum's exercise of personal
jurisdiction in a situation where the cause of action 'relates
to,' but does not 'arise out of,' the defendant's contacts
with the forum should be analyzed as an assertion of specific
jurisdiction."); Ex parte Kamilewicz, 700 So. 2d 340, 345 n.2
1060596
I note that the Harvard Law Review article by Von Mehren
7
and Trautman is the same law review article that first
proposed the use of the terms "general jurisdiction" and
"specific jurisdiction," which were ultimately adopted by the
United States Supreme Court in Helicopteros.
25
(Ala.
1997);
Linda
Sandstrom
Simard,
Hybrid
Personal
Jurisdiction: It's Not General Jurisdiction, or Specific
Jurisdiction, but Is It Constitutional?, 48 Case W. Res. L.
Rev. 559, 582 (1998); William M. Richman, Jurisdiction in
Civil Actions, 72 Cal. L. Rev. 1328, 1345 (1984); Arthur T.
von Mehren & Donald T. Trautman, Jurisdiction to Adjudicate:
A Suggested Analysis, 79 Harv. L. Rev. 1121 (1966).7
General Jurisdiction
As to the issue of general jurisdiction, I concur only in
the result reached by the main opinion. Based on my review of
the materials before this Court, though it too is a close
question, I do not believe that Owens Used Cars sufficiently
argued to the trial court or to this Court that it was not
subject to personal jurisdiction in Alabama because its
contacts with Alabama were too remote in time. In my opinion,
Owens Used Cars waived any such argument. See McDowell v.
Key, 557 So. 2d 1243, 1249 (Ala. 1990) (noting that this Court
"cannot hold the trial court in error for not considering an
1060596
26
argument that was not made"); see also Rule 28(a)(10), Ala. R.
App. P.; Dykes v. Lane Trucking, Inc., 652 So. 2d 248, 251
(Ala. 1994).
That said, I do not believe that Owens Used Cars' mid-
1980s contacts with Alabama (at least those that were proven)
were sufficiently "continuous and systematic" to form the
basis for general jurisdiction, even had such contacts
occurred at a time closer in proximity to the events giving
rise to the plaintiffs' causes of action or the filing of the
complaint. See, e.g., Perkins v. Benguet Consol. Mining Co.,
342 U.S. 437 (1952); see also, e.g., Nichols v. G.D. Searle &
Co.,
991
F.2d
1195,
1200
(4th
Cir.
1993)
("[B]road
constructions of general jurisdiction should be generally
disfavored."). See generally Von Mehren & Trautman, supra
(discussing multiple forms of general jurisdiction and
specific jurisdiction that are reflected in United States
Supreme Court precedent, and questioning the usefulness of
general-jurisdiction analysis to resolve most cases).
1060596
27
SEE, Justice (concurring in the result).
I concur in the result reached by the main opinion for
the reasons stated in Justice Lyons's special writing.
1060596
28
LYONS, Justice (concurring in the result).
The main opinion states:
"As to general jurisdiction, the materials
before this Court indicate that Owens Used Cars'
only contacts with Alabama occurred during the
mid-1980s. Although the level of those mid-1980s
contacts might have been sufficient to fall within
the parameters for general jurisdiction that are
reflected in some of this Court's precedents, see,
e.g., Ex parte Lagrone, 839 So. 2d 620 (Ala. 2002);
see also Ex parte McInnis, 820 So. 2d [795] at 810
[(Ala. 2001)] (Lyons, J., writing specially, joined
by See and Brown, JJ.), we conclude that those
contacts are too remote in time from the accrual of
the plaintiffs' causes of action and the filing of
the
complaint
to
form
a
constitutionally
satisfactory basis for general jurisdiction."
___ So. 2d at ___.
I do not agree with the foregoing observation that Ex
parte Lagrone, 839 So. 2d 620 (Ala. 2002), and the special
writing in Ex parte McInnis, 820 So. 2d 795, 808 (Ala. 2001),
could lead to a result inconsistent with the holding in the
main opinion. I therefore respectfully concur in the result.
Justice Murdock, in his special writing, concludes that
Owens Used Cars waived any argument as to the absence of
general jurisdiction based upon the remoteness of its activity
in Alabama and then concurs in the result as to issuing the
writ of mandamus based on the absence of general jurisdiction.
1060596
29
I am puzzled as to how this conclusion would nonetheless
permit him to concur in the result, as opposed to dissenting
from issuing the writ. In all events, I cannot agree with his
conclusion of waiver.
Owens Used Cars' petition and reply repeatedly cite
authority from the United States Supreme Court requiring that
a defendant's activity must be "continuous and systematic" to
sustain general jurisdiction. Owens Used Cars says that the
plaintiffs offered no such evidence. The answer to the
petition brings out Owens Used Cars' activity during the mid-
1980s. Owens Used Cars, in reply, again cites authority
requiring continuous and systematic activity to sustain
general jurisdiction. It discusses the plaintiffs' evidence
and concludes:
"Respondents/Plaintiffs contend that [Owens] Used
Cars had 'direct sales business in Alabama.'
However, the record shows that the only 'business'
activities of [Owens] Used Cars that relates to the
State of Alabama was when Alabama dealerships
initiated contacts with [Owens] Used Cars to
purchase vehicles. As demonstrated in the record,
this activity occurred in the mid 1980's."
Owens Used Cars' reply brief, p. 5 (emphasis added). Later,
Owens Used Cars argues:
1060596
30
"The limited amount of business activities of
[Owens] Used Cars in the mid 1980's does not rise to
the level of a 'continuous and systematic' course of
conduct that would confer general jurisdiction over
[Owens] Used Cars by an Alabama court."
Owens Used Cars' reply brief, p. 8.
Although I recognize that Owens Used Cars places greater
emphasis on lack of solicitation as the basis for finding no
personal jurisdiction, I cannot conclude that it waived any
argument as to the insufficiency of personal jurisdiction
based on the failure of its activities to constitute a
continuous and systematic course of conduct.
Cobb, C.J., and Smith, J., concur. | August 1, 2008 |
4fe02548-2078-4f88-ba4c-d1edcf782f07 | Ex parte John Alden Life Insurance Company. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: H.M. Beasley v. Fortis Insurance Company and John Alden Life Insurance) | N/A | 1070414 | Alabama | Alabama Supreme Court | rel: 06/20/2008
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, 2007-2008
_________________________
1070414
_________________________
Ex parte John Alden Life Insurance Company
PETITION FOR WRIT OF MANDAMUS
(In re: H.M. Beasley
v.
Fortis Insurance Company and John Alden Life Insurance
Company)
(Barbour Circuit Court, CV-05-117)
COBB, Chief Justice.
John Alden Life Insurance Company ("JALIC") petitions
this Court for a writ of mandamus ordering the Barbour Circuit
1070414
2
Court to vacate its December 4, 2007, order compelling JALIC
to produce a list of names and addresses of individuals who
have been issued individual medical certificates by JALIC
(known as a JALIC Form 390), from June 1, 2002, through
December 4, 2007, and directing the trial court to enter a
protective order preventing JALIC from having to produce the
names and addresses of its insureds. We deny the petition.
In June 2002, Jeffrey Fredrickson, a JALIC agent,
approached H.M. Beasley regarding the purchase of health
insurance from JALIC. According to Beasley, Fredrickson
marketed the health plan as a true "group" health-insurance
product. Specifically, Beasley recalled that Fredrickson
explained to him that JALIC's health-insurance plan was a
"group-type policy" and thus that the rates and premiums would
be lower than his current policy and that his premiums would
be rated as part of a group. Beasley also contends that
Fredrickson represented to him that any future increases in
premiums would be uniform as to all policyholders in the
group. Beasley purchased a family-plan health-insurance
policy under a "Master Group Policy" from JALIC, effective
July 1, 2002, to cover both him and his ex-wife. Beasley's
1070414
During the course of this litigation the defendant Fortis
1
began filing documents as "Time Insurance Company f/k/a Fortis
Insurance Company."
3
initial monthly premiums for the family plan were $245.76;
however, by 2005 his monthly premiums had increased to
$440.21. Beasley asserts that this increase was not
instituted uniformly among all policyholders and that JALIC
employs a rating system that discriminates against various
policyholders based upon certain personal factors such as
claim history and the policyholder's health.
On July 1, 2005, Beasley sued JALIC and Fortis Insurance
Company, the administrator of the policy, alleging breach of
1
contract, negligence, recklessness, wantonness, fraud in the
sale of the insurance policy, suppression, breach of a
fiduciary
duty,
negligent training and supervision
of
Fredrickson, and negligent procurement of the insurance policy
by Fredrickson. Contemporaneously with the filing of the
complaint, Beasley served JALIC with interrogatories and
requests for production. In his interrogatories and requests
of production, Beasley requested the following:
"14. Please produce a list of names and addresses
for any and all policyholders in the State of
Alabama that have the same or similar type of health
1070414
4
insurance
policy
with
[JALIC
and
Fortis]
as
[Beasley] during the years 1998 through 2005."
On May 11, 2006, JALIC responded to Beasley's request for
production and objected to the discovery of the information
sought in request no. 14, alleging that it was overly broad
and unduly burdensome, sought information for an unreasonable
and inappropriate time frame, and sought information that was
confidential and proprietary. JALIC further objected that the
information sought was "health information" as defined by the
Health Insurance Portability and Accountability Act of 1996
("HIPAA"), 42 U.S.C. § 1320d(4) and that disclosure of the
information would be a violation of the HIPAA privacy rule, 45
C.F.R. §§ 160 and 164. On August 23, 2006, Beasley's attorney
wrote JALIC's attorney asking that within 15 days he provide
the documents and information JALIC had not produced. On
December 5, 2006, Beasley's attorney again wrote JALIC's
attorney inquiring as to the status of the outstanding
discovery.
On May 31, 2007, and again on June 6, 2007, Beasley filed
with the trial court motions to compel the production of the
documents and information sought in request no. 14. Fortis
and JALIC responded to Beasley's motions to compel on July 19,
1070414
5
2007. The response asserted that Beasley has never been
insured by Fortis and that it did not possess the information
requested in Beasley's discovery responses. It further
responded that JALIC does not maintain a list of the names and
addresses of JALIC's certificate holders in Alabama, that its
policyholder lists are confidential proprietary information,
that Beasley had not demonstrated a particularized need for
the discovery, that the discovery request was not closely
tailored to the nature of his fraud claim, and that production
of the requested information would be a violation of HIPAA and
the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq. On July
26, 2007, the trial court entered an order requiring JALIC to
provide a list of names and addresses of individuals in
Alabama who have been covered during the period from July 1,
2002, to July 26, 2007, by the same or similar type of health
insurance as Beasley.
On August 15, 2007, JALIC and Fortis filed a motion
asking the trial court to reconsider its order of July 26,
2007, and also asking for a protective order preventing JALIC
and Fortis from producing any of the information requested in
Beasley's request no. 14. Additionally, JALIC and Fortis
1070414
6
requested that if they had to produce the information
requested that it be designated as confidential and that
Beasley be able to contact JALIC's insureds only via a court-
approved letter. On December 4, 2007, the trial court granted
JALIC and Fortis's motion in part so that Fortis was not
required to produce any documents requested in Beasley's
request no. 14; however, the trial court ordered JALIC to
produce the names and addresses requested in request no. 14
within 20 days of the order. The trial court also ordered (1)
that the list JALIC produce be designated "confidential," (2)
that the list not be used for purposes other than the current
litigation, (3) that the list must be returned to JALIC at the
conclusion of the case, (4) that Beasley's attorneys make
contact with any individual on the list only one time and
through a court-approved letter, (5) that, within 30 days of
mailing the letter and within 5 days of any response made
after the initial 30-day period, Beasley notify JALIC of the
individuals who responded to the letter, and (6) that Beasley
notify JALIC if he wished to make additional contact with any
individual on the list and explain why such contact was needed
and if JALIC did not agree to the additional contact then
1070414
7
Beasley must petition the trial court to make the additional
contact. Attached to the order was a court-approved form
letter that Beasley's attorneys were to use to contact JALIC's
insureds.
On December 20, 2007, JALIC filed this petition for the
writ of mandamus. JALIC contemporaneously filed an emergency
motion to stay compliance with the trial court's December 4,
2007, order, which this Court granted.
"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. 1992) (citations omitted); see also
Ex parte Hicks, 727 So. 2d 23, 33 (Ala. 1998)
(Maddox, J., dissenting).
"Petitioning for the writ of mandamus is the
proper method for determining whether a trial judge
has abused his discretion in limiting discovery. Ex
parte Allstate Ins. Co., 401 So. 2d 749, 751 (Ala.
1981). 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
1070414
8
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, 102 (Ala.
1981))."
Ex
parte
Henry,
770
So.
2d
76,
79-80
(Ala.
2000).
Furthermore, "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." Ex parte Ocwen Federal Bank, FSB, 872 So.
2d 810, 813 (Ala. 2003). "Moreover, we are also aware of the
fundamental disinclination of the appellate courts to intrude
into the trial court's province in conducting the litigation
process." Ex parte Cooper Tire & Rubber Co., [Ms. 1050638,
October 26, 2007] ___ So. 2d ___, ____ (Ala. 2007). As has
been previously noted, this Court is bound to "'[l]et the
trial
court
be
the
trial
court,
without
microscopic
1070414
9
manipulation of its discretion by this Court.'" Ex parte
Henry, 770 So. 2d at 81 (quoting Ex parte Howell, 704 So. 2d
479, 483 (Ala. 1997) (Houston, J., dissenting)).
JALIC asserts that it has a legal right to a writ of
mandamus because, it argues, the trial court's December 4,
2007, order (1) disregards a privilege, (2) compels the
production of irrelevant or duplicative documents, the
production of which would constitute harassment, and (3)
disregards the fact that Beasley has failed to demonstrate a
"particularized need" for the discovery. This Court agrees
that if the discovery ordered by the trial court in this case
disregards a privilege, JALIC will have no remedy by appeal
after it has complied with the discovery order.
JALIC first argues that the trial court's order violates
the HIPAA privacy rule because "none of JALIC's insureds have
authorized the disclosure of their names and addresses to
[Beasley], which is protected information under HIPAA."
(JALIC's petition, p. 15.) Although the HIPAA privacy rule
does provide that an insured must authorize the disclosure of
individually identifiable health information, exceptions to
this rule exist.
1070414
10
In 1996, the United States Congress enacted, and the
President signed into law, Pub. L. No. 104-191, 110 Stat. 1936
–- HIPAA . As another court has noted:
"Congress enacted HIPAA principally to increase
the portability and continuity of health insurance
and to simplify administrative procedures so as to
reduce health care costs (see HIPAA, Pub. L.
104-191, 110 U.S. Stat 1936 (1996)). The 'corner-
stone' of HIPAA's 'administrative simplification'
provisions (Pub. L. 104-191 §§ 261-264) was the
electronic record, 'believed in the 1990s to be the
future key to the efficient delivery of health care
(see Kutzko, Boyer, Thoman and Scott, HIPAA in Real
Time: Practical Implications of the Federal Privacy
Rule, 51 Drake L. Rev. 403, 407 [2002-2003]). Thus,
HIPAA mandated national standards for electronic
medical data management. At the same time, this
shift
away
from
paper-based
to
systematized
electronic records was perceived to threaten the
confidentiality of sensitive patient information.
As a result, HIPAA also authorized the Secretary of
the United States Department of Health and Human
Services (HHS) to promulgate standards governing
disclosure of patient health information in the
event Congress did not pass privacy legislation
within three years of HIPAA's enactment.
"When Congress did not meet its self-imposed
deadline, HHS proposed and subsequently adopted a
Privacy Rule (see 45 CFR parts 160, 164; see also
South Carolina Med. Assn. v. Thompson, 327 F. 3d 346
[4th Cir. 2003] [discussing HIPAA and rejecting
claims that Congress impermissibly delegated its
legislative function to HHS]). When devising the
Privacy Rule, HHS sought to 'strike[] a balance that
permits
important
uses
of
information,
while
protecting the privacy of people who seek care and
healing'; and to fashion a scheme sufficiently
'flexible and comprehensive to cover the variety of
1070414
"Protected
health
information
means
individually
2
identifiable health information ... that is (i) Transmitted by
electronic media; (ii) Maintained in electronic media; or
(iii) Transmitted or maintained in any other form or medium."
45 C.F.R. § 160.103 (1997). "Individually identifiable health
information" is defined as:
"[I]nformation
that
is
a
subset
of
health
information,
including
demographic
information
collected from an individual, and:
"(1) Is created or received by a health
care provider, health plan, employer, or
health care clearinghouse; and
"(2) Relates to past, present, or future
physical or mental health or condition of
an individual; the provision of health care
to an individual; or the past, present, or
future payment for the provision of health
care to an individual; and
11
uses and disclosures that need to be addressed'
(United States Department of Health and Human
Services, Office for Civil Rights, Summary of the
HIPAA Privacy Rule, at 1, available at http://
www.hhs.gov/ocr/privacysummary.pdf
[last
revised
May
2003]). In most instances, compliance with the Rule
was required by April 14, 2003 (45 C.F.R. [§]
164.534)."
Arons v. Jutkowitz, 9 N.Y.3d 393, 411-12, 880 N.E.2d 831, 839-
40, 850 N.Y.S.2d 345, 353-54 (2007) (footnote omitted).
The HIPAA privacy rule generally forbids a covered
entity, including a group-health-plan or health-insurance
issuer,
from
using
an
individual's
"protected
health
information" except as provided by the rule. 45 C.F.R. §
2
1070414
"(i)
That
identifies
the
individual; or
"(ii) With respect to which there
is a reasonable basis to believe
the information can be used to
identify the individual ...."
45 C.F.R. § 160.103 (1997).
12
164.502(a) (2007). Disclosure is mandated when an individual
seeks his or her own health information from a covered entity
and when the Secretary of the Department of Health and Human
Services asks for such information from a covered entity in
order to enforce HIPAA. 45 C.F.R. § 164.502(a)(2); see also
Arons, 9 N.Y.3d at 413, 880 N.E.2d at 840, 850 N.Y.S.2d at
354. The rule permits disclosure in other circumstances. 45
C.F.R. § 164.502(a)(1).
"Uses and disclosures qualifying as permissive under
the Privacy Rule are just that –- for purposes of
compliance with HIPAA, the covered entity is
permitted, but not required, to use the information
or make the disclosure. ... Stated another way, a
covered entity, such as a physician, who releases a
patient's protected health information in a way
permitted by the Privacy Rule does not violate
HIPAA; however, neither the statute nor the Rule
requires the physician to release this information."
Arons, 9 N.Y.3d at 413, 880 N.E.2d at 840, 850 N.Y.S.2d at
354.
1070414
13
One of the exceptions provided for in the HIPAA privacy
rule is for judicial and administrative proceedings. 45
C.F.R. § 164.512 (2007) provides, in pertinent part:
"A covered entity may use or disclose protected
health information without the written authorization
of the individual, as described in § 164.508, or the
opportunity for the individual to agree or object as
described in § 164.510, in the situations covered by
this section, subject to the applicable requirements
of this section ....
"....
"(e)
Standard:
Disclosures
for
judicial
and
administrative
proceedings
–-
(1)
Permitted
disclosures.
A
covered
entity
may
disclose
protected health information in the course of any
judicial or administrative proceeding:
"(i) In response to an order of a court or
administrative tribunal, provided that the covered
entity
discloses
only
the
protected
health
information expressly authorized by such order; or
"(ii) In response to a subpoena, discovery request,
or other lawful process, that is not accompanied by
an order of a court or administrative tribunal, if:
"(A)
The
covered entity receives satisfactory
assurance ... from the party seeking the information
that reasonable efforts have been made by such party
to ensure that the individual who is subject of the
protected health information that has been requested
has been given notice of the request; or
"(B)
The
covered entity receives satisfactory
assurance ... from the party seeking the information
that reasonable efforts have been made by such party
1070414
14
to secure a qualified protective order that meets
the requirements of ... this section."
The HIPAA privacy rule defines a "qualified protective order"
as an order of a court or a stipulation of the parties to the
litigation that
"(A)
[p]rohibits
the
parties
from
using
or
disclosing the protected health information for any
purpose other than the litigation or proceeding for
which such information was requested; and
"(B) [r]equires the return to the covered entity or
destruction of the protected health information
(including all copies made) at the end of the
litigation or proceeding."
45 C.F.R. §164.512(e)(1)(v).
As the Assistant Secretary for Planning and Evaluation of
the Department of Health and Human Services has noted:
"When a request is made pursuant to an order from a
court or administrative tribunal, a covered entity
may disclose the information requested without
additional process. For example, a subpoena issued
by a court constitutes a disclosure which is
required by law as defined in this rule, and nothing
in this rule is intended to interfere with the
ability of the covered entity to comply with such
subpoena."
Standards for Privacy of Individually Identifiable Health
Information, 65 Fed. Reg. 82462-01, 82529 (Dec. 28, 2000).
Thus, the HIPAA privacy rule does not impede a covered entity
from complying with a court order, nor does it impede
1070414
15
responding to discovery when a qualified protective order has
been entered. That being said, the HIPAA privacy rule also
does not prohibit a covered entity from objecting to a
discovery order on other grounds such as a recognized
privilege.
Given the plain language of the HIPAA privacy rule, this
Court disagrees with JALIC's argument that in ordering it to
produce the information sought in Beasley's request no. 14 the
trial court disregarded a privilege created by HIPAA for
JALIC's insureds. The HIPAA privacy rule clearly permits
JALIC to comply with the trial court's discovery order without
violating HIPAA. In fact, the trial court's order exceeds the
standards set by the HIPAA privacy rule. The HIPAA privacy
rule provides that JALIC is permitted to comply with the trial
court's order so long as JALIC discloses only the information
expressly
authorized
by
the
order.
45
C.F.R.
§
164.512(e)(1)(i). Although not required to do so, the trial
court entered an order that meets the standards of a
"qualified protective order" as that term is defined by the
HIPAA privacy rule: the order provides that the names and
addresses on the list are to be designated as confidential,
1070414
16
prohibits the use of the information for any other purpose
other than the current litigation, and requires that the list
be returned to JALIC at the conclusion of the litigation.
Additionally, the order requires Beasley to make initial
contact with JALIC's insureds through a court-approved letter,
and the language of the letter requires the insureds to
initiate any further contact with Beasley. Thus, this Court
concludes that the trial court's order of December 4, 2007,
requiring disclosure of the names and addresses of JALIC's
insureds in Alabama with the same or similar type of health-
insurance policy as Beasley does not violate the HIPAA privacy
rule.
JALIC also argues that the trial court exceeded its
discretion by allowing Beasley to discover the names and
addresses of its Alabama insureds because, it argues,
Beasley's request was not closely tailored to any of the
allegations
in
his
complaint,
Beasley
has
failed
to
demonstrate a particularized need for the information, and the
information sought is patently irrelevant. JALIC premises
these arguments on Beasley's deposition testimony, which it
1070414
17
contends contradicts the allegations of Beasley's fraud claim.
Specifically, Beasley asserted in his complaint that
"[a]t the time [Beasley] applied for and agreed to
purchase the referenced health insurance policy, it
was represented to him by [JALIC's] employee/agent
... that the health insurance policy was a policy
which would help keep premiums at a lower level and
that any increase in the premiums in the future
would have to be equally increased over all the
policyholders at the same rate. Upon information
and belief, [JALIC] employed a rating system that
discriminated against various policyholder based
upon certain personal factors such as claims
experience and/or health status. This fact was
suppressed from [Beasley]. [Beasley], in reasonable
reliance
upon
the
aforesaid
representations,
purchased said policy of health insurance."
In his deposition, Beasley testified as follows:
"[JALIC'S COUNSEL]: Let me ask with respect to the
certificate you purchased from [JALIC]. Is it fair
to say the reason you purchased that was your
dealings with Mr. Fredrickson?
"[BEASLEY]: No.
"[JALIC'S COUNSEL]: Why did you purchase it? What
caused you to purchase insurance from [JALIC]?
"[BEASLEY]: Well, I purchased it, you know, because
I was looking for better coverage and lower
premiums."
(Emphasis added.) Thus, JALIC argues, Beasley does not have
a viable fraud claim because, it argues, he did not rely on
the representations of Fredrickson, its agent. Thus, JALIC
1070414
18
argues, the trial court should not have permitted the
discovery.
"'The first step in determining whether the
court has abused its discretion is to determine the
particularized need for discovery, in light of the
nature of the claim.' Ex parte Rowland, 669 So. 2d
125, 127 (Ala. 1995). A plaintiff in a fraud action
'is accorded a broader range of discovery in order
to meet the heavy burden imposed on one alleging
fraud.' Ex parte Clarke, 582 So. 2d 1064, 1067
(Ala. 1991). ... 'When the discovery request of a
plaintiff alleging fraud is closely tailored to the
nature of the fraud alleged, the discovery should be
allowed in full, as long as the party opposing
discovery does not show that the requested discovery
is oppressive or overly burdensome.' Ex parte
Horton, 711 So. 2d [979,] 983 [(Ala. 1998)]."
Ex parte Henry, 770 So. 2d at 80.
Given the imprecision of the term "dealings" in the
question posed as to why Beasley purchased the policy and
Beasley's
testimony
regarding
Fredrickson's
representations
as
to the determination of any future rate change, the question
of reliance cannot at this stage of the proceedings be
resolved in favor of JALIC and thereby insulate it from
discovery relating to Beasley's fraud claim.
This Court on several occasions has permitted the
discovery of the name of nonparty customers in other fraud
cases. See, e.g., Ex parte First Nat'l Bank of Pulaski, 730
1070414
19
So. 2d 1160 (Ala. 1999) (holding that bank-loan transactions
of other customers over a two-year period were discoverable);
Ex parte Clarke, 582 So. 2d 1064 (Ala. 1991) (holding that
plaintiff was entitled to meaningful contact with other
purchasers of conversion policies like the one it had
purchased); Ex parte State Farm Mut. Auto. Ins. Co., 452 So.
2d 861 (Ala. 1984) (holding that the identity of other
insureds located in Alabama with uninsured-motorist coverage
was discoverable); and Ex parte Allstate Ins. Co., 401 So. 2d
749 (Ala. 1981) (holding that the identity of other insureds
with uninsured-motorist coverage who had been paid the one-
vehicle benefit when more than one vehicle was covered by the
policy was discoverable).
In Ex parte Orkin, Inc., 960 So. 2d 635 (Ala. 2006),
however, this Court held that a plaintiff was not entitled to
review approximately 23,000 customer files located in 5 states
and spanning a 25-year period because the discovery was not
tailored closely enough to the plaintiff's fraud claim. This
Court noted in a footnote that "[a]n example of 'tailored'
discovery would be a request that, during a relevant time
period, Orkin produce lawsuits, claims, or customer complaints
1070414
20
similar to the allegations made by the [plaintiffs]." Orkin,
960 So. 2d at 642 n. 8.
Given the nature of the fraud claimed by Beasley, this
case is more akin to Ex parte State Farm Mutual Auto Insurance
Co. and Ex parte Allstate Insurance Co. than to Ex parte
Orkin. Likewise, the trial court is permitting Beasley to
discover only the names and addresses of other insureds
located in Alabama who purchased the same health-insurance
policy from JALIC over an approximately five-year period.
Such discovery is closely tailored to the fraud claim asserted
in Beasley's complaint.
JALIC also argues that the information Beasley is seeking
is patently irrelevant. Its argument is premised on its
contention that Beasley did not rely on any representations by
Fredrickson in purchasing the health insurance. As explained
above, this Court does not agree with JALIC's contention.
Therefore, this Court cannot find that the trial court clearly
exceeded its discretion in permitting the discovery.
JALIC further argues that Beasley has not shown a
"particularized need" for the information he is attempting to
discover. In Ex parte Union Security Life Insurance Co., 723
1070414
21
So. 2d 34 (Ala. 1998), this Court held that "[t]o determine
whether the trial court abused its discretion in ordering [a
defendant] to comply with [a plaintiff's discovery request],
we must consider the nature of her claim and whether, in light
of that claim, she demonstrated a particularized need for the
discovery she seeks." 723 So. 2d at 37. JALIC's argument
rises and falls on its assertion that Beasley does not
actually state a fraud claim and it relies on Beasley's
deposition testimony as support for that assertion. As stated
previously, this Court does not agree with JALIC's assertion.
JALIC also argues that Beasley has not shown the trial court
why he needs this information. This argument, however, is
answered by Ex parte Union Security:
"Clearly, the nature
of
[the
plaintiff's]
claims
supports a finding of a need for broad discovery.
The complaint alleges fraud, misrepresentation, and
deceit, and resulting damage.
"'When a plaintiff has alleged fraud,
discovery must necessarily be broader than
in other cases; this is because of the
heavy burden of proof imposed on one
alleging fraud. It is well settled in this
state that at trial of a fraud case a
plaintiff can present evidence of prior
similar misconduct to show existence of a
plan or scheme, motive, or intent on the
part of the defendant. Rule 404(b), Ala.
R. Evid.; Charles W. Gamble, McElroy's
1070414
JALIC also argues that "it is apparent that the only
3
'need' for the list is to conduct a fishing expedition so that
[Beasley's] attorneys can try to conjure up additional
clients." (JALIC's brief, p. 24.) In its reply brief, JALIC
asserts that "this Court has refused to permit discovery that
effectively amounts to a 'fishing expedition.'" (JALIC's reply
brief, p. 5.) In support of this assertion, JALIC cites Ex
parte Wal-Mart Stores, Inc., 682 So. 2d 65 (Ala. 1996).
Although not crediting it as such, JALIC cites, not the main
opinion, but Chief Justice Hooper's dissent in Ex parte Wal-
Mart. In that case this Court actually denied Wal-Mart's
petition for the writ of mandamus and permitted the discovery
the trial court had ordered.
22
Alabama Evidence § 34.02(2)(5th ed. 1996).
...
Thus,
"[e]vidence
of
similar
misrepresentations made by the defendant is
admissible in a fraud action." Ex parte
Allstate Ins. Co., 401 So. 2d 749, 751
(Ala. 1981).'
"Ex parte Horton, 711 So. 2d [979,] 983 [(Ala.
1998)] (some citations omitted)."
723 So. 2d at 37-38. Thus, because of the nature of Beasley's
fraud claim, he has a particularized need for the discovery.3
Finally, JALIC argues that the trial court exceeded its
discretion in ordering the discovery because the trial court's
order does not reflect an appropriate balance between meeting
Beasley's discovery needs and protecting JALIC and the
interests of its insureds. The law is settled that "[i]f the
record reflects the requisite need for discovery, then we must
determine whether the trial court's order reflects an
1070414
23
appropriate
balance
between
meeting
[the
plaintiff's]
discovery needs and protecting the legitimate confidentiality
of [the insurer] and its customers." Union Security, 723 So.
2d at 37. As JALIC notes, this Court has previously held that
"[a]n insurance company's policyholder lists are confidential
proprietary information to which a litigant has no right
except through court-ordered discovery." Ex parte Henry, 770
So. 2d at 80. However, the discovery here is court-ordered;
thus, JALIC's argument is without credence. JALIC also argues
that the discovery order does not take into consideration that
JALIC will be inundated with calls from insureds asking why
their information was provided to Beasley and that insureds
may decide to have another insurer issue their policies
because JALIC disclosed their information. JALIC also argues
that disclosing this information will establish a precedent
that allows plaintiffs' counsel to go on "fishing expeditions"
to obtain client information under the guise of pattern-and-
practice discovery, thus potentially damaging insurers'
business in Alabama and causing insurers to choose not to
issue insurance to Alabama residents. As noted previously,
this Court has permitted the production of insureds' names and
1070414
24
addresses in cases where the plaintiff's claims are based on
fraud. See, e.g., Ex parte Clarke, supra, Ex parte State Farm
Mut. Auto. Ins. Co., supra, and Ex parte Allstate Ins. Co.,
supra.
The trial court's order is crafted so as to permit
Beasley to obtain the discovery he needs to substantiate his
fraud claim while protecting JALIC's interests. The list of
the names and addresses of JALIC's insureds must be marked
"confidential" under a protective order previously entered by
the trial court. The trial court's order provides that the
list cannot be used for any purpose other than the current
litigation, and Beasley must return the list at the conclusion
of the litigation. Furthermore, the order permits Beasley to
make initial contact with the insureds only through one court-
approved letter, and the order places the burden on the
insureds who have been contacted to contact Beasley's
attorneys if they feel they too have been defrauded and want
to be a potential witness in the trial. The court-approved
letter states that JALIC was ordered by the trial court to
produce a list of policyholders, thus quelling JALIC's
concerns that its insureds will believe it produced this
1070414
25
information voluntarily. The trial court's order also
requires Beasley to inform JALIC of each individual who
responds to the letter within 30 days of the mailing of the
letter and thereafter to inform JALIC within 5 days of
receiving a response from an insured. The trial court's order
further provides that if Beasley desires to make additional
contact with any insured he must inform JALIC of the identity
of the individual and the reason for contacting the
individual. If JALIC objects, the order provides that Beasley
must petition the trial court to make such contact. As
demonstrated, this order strikes an appropriate balance
between Beasley's discovery needs and JALIC's obligation to
its insureds. Thus, the trial court did not exceed its
discretion in ordering the discovery.
We therefore conclude that the trial court did not exceed
its discretion in ordering JALIC to respond to Beasley's
discovery request. The HIPAA privacy rule does not impede the
discovery of the information sought, and the information
sought is not patently irrelevant. Likewise Beasley has a
particularized need for the discovery because of his fraud
claim, and the discovery request is sufficiently tailored to
1070414
26
his fraud claim. JALIC's petition for a writ of mandamus is
hereby denied.
PETITION DENIED.
See, Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur. | June 20, 2008 |
4363ce95-ccb0-4af7-814e-57338309c038 | Debra Johnson v. Jefferson County Racing Association, Inc. d/b/a The Birmingham Race Course | N/A | 1061398 | Alabama | Alabama Supreme Court | REL: 06/27/08
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, 2007-2008
_________________________
1061398
_________________________
Debra Johnson
v.
Jefferson County Racing Association, Inc., d/b/a The
Birmingham Race Course
Appeal from Jefferson Circuit Court
(CV-06-6921)
SEE, Justice.
Debra Johnson appeals a Jefferson Circuit Court order
compelling her to arbitrate her claims against the Jefferson
County Racing Association, Inc., d/b/a The Birmingham Race
1061398
Section 13A-12-27, Ala. Code 1975, provides:
1
"(a) A person commits the crime of possession of
a gambling device if with knowledge of the character
thereof he manufactures, sells, transports, places
or
possesses,
or
conducts
or
negotiates
any
transaction
affecting
or
designed
to
affect
ownership, custody or use of:
"(1) A slot machine; or
"(2) Any other gambling device, with
the intention that it be used in the
advancement of unlawful gambling activity.
"(b) Possession of a gambling device is a Class
A misdemeanor."
Section 8-1-150(a), Ala. Code 1975, provides:
2
2
Course ("JCRA"), and dismissing her action. We affirm in part
and reverse in part.
Facts and Procedural History
Johnson brought the present action following this Court's
decision in Barber v. Jefferson County Racing Ass'n, Inc., 960
So. 2d 599, 604 (Ala. 2006), in which we determined that an
activity
advertised
as
"Quincy's
MegaSweeps"
("the
MegaSweeps") initiated by Innovative Sweepstakes Systems,
Inc., at the Birmingham Race Course "involve[d] the use of
slot machines," a gambling device that is illegal in Alabama.1
Johnson sued JCRA pursuant to § 8-1-150(a), Ala. Code 1975,2
1061398
"(a) All contracts founded in whole or in part
on a gambling consideration are void. Any person who
has paid any money or delivered any thing of value
lost upon any game or wager may recover such money,
thing, or its value by an action commenced within
six months from the time of such payment or
delivery."
The relevant portions of the "Quincy's MegaSweeps
3
Official Sweepstakes Rules" provide:
"1. No Purchase Necessary to Win. A purchase
will not improve the chance of winning. Void where
prohibited by law.
"....
"3. Rules Are Binding. Participation in the
Sweepstakes constitutes an entrant's understanding
of, and full and unconditional agreement to and
acceptance of, these Official Rules.
"....
"8. Arbitration and Disputes. As a condition of
participating in this Sweepstakes, entrant agrees
3
on her own behalf and on behalf of a class of similarly
situated persons, seeking to recover money that she, and
others, had paid to participate in the MegaSweeps.
JCRA moved the trial court to compel Johnson to arbitrate
her claims and to dismiss Johnson's action. JCRA argued that
by participating in the MegaSweeps, Johnson had assented to
the arbitration provision found in the "official rules" for
the MegaSweeps ("the MegaSweeps contract"). Johnson opposed
3
1061398
that any and all disputes which cannot be resolved
between the parties, claims and causes of action
arising out of or connected with this Sweepstakes,
or any prizes awarded, or the determination of
winners shall be resolved individually, without
resort to any form of class action and exclusively
by
arbitration
pursuant
to
the
commercial
arbitration
rules
of the American Arbitration
Association, then effective. Further, in any such
dispute, under no circumstances will entrant be
permitted to obtain awards for, and entrant hereby
waives all rights to claim[,] punitive, incidental
or consequential damages, including but not limited
to attorneys' fees, out-of-pocket expenses, costs
associated with entering the Sweepstakes, and/or any
other damages, and entrant further waives all rights
to have damages multiplied or increased. All issues
and questions concerning the construction, validity,
interpretation and enforceability of these Official
Rules, or the rights and obligations of entrant and
Sponsor in connection with this Sweepstakes, shall
be governed by, and construed in accordance with,
the laws of the State of Alabama, without giving
effect to the conflict of laws rules thereof, and
all proceedings shall take place in that State in
the City of Birmingham, County of Jefferson."
4
JCRA's motion, arguing that JCRA could not establish a valid
contract calling for arbitration. Specifically, Johnson
argued that the MegaSweeps contract amounted to a contract
founded on a gambling consideration and that, therefore, the
contract is void and unenforceable under § 8-1-150(a), Ala.
Code 1975. Johnson alternatively argued that, even if the
MegaSweeps contract is not void in its entirety, because one
of the MegaSweeps rules includes a void-where-prohibited-by-
1061398
5
law provision, the arbitration clause found in those rules is
void and unenforceable.
The trial court noted that "the crux of [Johnson]'s
complaint is that the agreement as a whole, including the
arbitration provision, was rendered void or invalid by the
Court's holding in Barber [v. Jefferson County Racing Ass'n,
Inc., 960 So. 2d 599 (Ala. 2006)]." Relying on the United
States Supreme Court's decision in Buckeye Check Cashing, Inc.
v. Cardegna, 546 U.S. 440 (2006), the trial court then
determined that because Johnson's challenge was to the
MegaSweeps contract as a whole, rather than the arbitration
clause specifically, the issue of the validity of the contract
was to be decided by the arbitrator. The trial court then
dismissed Johnson's action and ordered that she arbitrate her
claims.
Johnson moved the trial court to alter, amend, or vacate
its order under Rule 59(e), Ala. R. Civ. P. In her motion,
Johnson reasserted and clarified the arguments she had made in
her brief opposing JCRA's motion to compel arbitration, but
she also argued that the trial court should have stayed the
action pending arbitration instead of dismissing it. The
trial court denied her motion. Johnson now appeals, arguing
1061398
6
that neither the MegaSweeps contract nor the arbitration
clause itself is valid or enforceable. Alternatively, Johnson
argues that, even if we conclude that the arbitration clause
is valid and enforceable, the trial court should have stayed,
rather than dismissed, her action pending the outcome of
arbitration.
Analysis
I. Order Compelling Arbitration
Johnson argues that the trial court erred when it
compelled her to arbitrate her claims against JCRA because,
she says, the MegaSweeps contract is void ab initio and
because, she argues, the arbitration clause itself is void.
A. Standard of Review
"We review the trial court's grant or denial of a motion
to compel arbitration de novo." McKay Bldg. Co. v. Juliano,
949 So. 2d 882, 884 (Ala. 2006) (citing Bowen v. Security Pest
Control,
Inc.,
879
So.
2d
1139,
1141
(Ala.
2003)).
"'Initially, the party seeking to compel arbitration must
prove 1) the existence of a contract calling for arbitration,
and 2) that the contract "is 'a contract evidencing a
transaction involving commerce' within the meaning of the
Federal Arbitration Act (FAA)."'" Owens v. Coosa Valley Health
1061398
7
Care, Inc., 890 So. 2d 983, 986 (Ala. 2004) (quoting Hudson v.
Outlet Rental Car Sales, Inc., 876 So. 2d 455, 457 (Ala.
2003), quoting in turn Citizens Bank v. Alafabco, Inc., 539
U.S. 52, 53 (2003), quoting in turn 9 U.S.C. § 2). "The
moving party 'must "'produce some evidence which tends to
establish its claim.'"'" Edwards v. Costner, 979 So. 2d 757,
761 (Ala. 2007) (quoting Wolff Motor Co. v. White, 869 So. 2d
1129, 1131 (Ala. 2003), quoting in turn Jim Burke Auto., Inc.
v. Beavers, 674 So. 2d 1260, 1265 (Ala. 1995), quoting in turn
In re American Freight Sys., Inc., 164 B.R. 341, 345 (D.Kan.
1994)). Finally, "[o]nce the moving party has supported his
or her motion to compel arbitration, the nonmovant then has
the burden to present evidence tending to show that the
arbitration agreement is invalid or inapplicable to the case."
McKay, 949 So. 2d at 884 (citing Polaris Sales, Inc. v.
Heritage Imports, Inc., 879 So. 2d 1129, 1132 (Ala. 2003)).
B. Existence of a Contract
Johnson argues that JCRA cannot meet its initial burden
of demonstrating the existence of a contract calling for
arbitration because, she argues, "under this Court's unanimous
decision in Barber[ v. Jefferson County Racing Ass'n, Inc.,
960 So. 2d 599 (Ala. 2006)], the MegaSweeps contracts relied
1061398
JCRA notes that "[a]t no time has Johnson ever disputed
4
that she assented to [the] terms [of the MegaSweeps
contract]." JCRA's brief at 9. Although Johnson argues that
the MegaSweeps contract is "void" because it was founded on a
gambling consideration, Johnson does not otherwise dispute the
existence of the contract or that she assented to it.
Additionally, Johnson does not argue that JCRA cannot meet its
burden of demonstrating that the MegaSweeps contract involves
interstate commerce.
The dissent argues that "[h]ad the Legislature intended
5
that some provisions of those [gambling] contracts [addressed
in § 8-1-150] not be void, it could have said so in clear
terms, but its language is all-encompassing and unmistakable."
___ So. 2d at ___. The dissent continues that "[t]he
Legislature has clearly provided that the customer's remedy
for losses in an illegal gambling activity is an action in
court, not arbitration provided by a clause in a contract that
is void ab initio." ___ So. 2d at ___. However, whether the
arbitration clause in the MegaSweeps contract is severable is
not a question of state law, but one of federal law.
In Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,
445 (2006), the Supreme Court of the United States said that
"the [Federal Arbitration Act] 'create[d] a body of federal
substantive law,' which [is] 'applicable in state and federal
courts.'" (quoting Southland Corp. v. Keating, 465 U.S. 1, 12
(1984)). The Supreme Court noted that it had previously
8
on by the JCRA are void ab initio." Johnson's brief at 15
4
(emphasis in the original).
Section 8-1-150(a), Ala. Code 1975, provides:
"All contracts founded in whole or in part on a
gambling consideration are void. Any person who has
paid any money or delivered any thing of value lost
upon any game or wager may recover such money,
thing, or its value by an action commenced within
six months from the time of such payment or
delivery."5
1061398
"rejected the view that the question of 'severability' was one
of state law, so that if state law held the arbitration
provision not to be severable a challenge to the contract as
a whole would be decided by the court." 546 U.S. at 445. This
Court is bound by decisions of the Supreme Court of the United
States. See Ex parte Procom Servs., Inc., 884 So. 2d 827, 834
(Ala. 2003) ("'"This Court may rely on a decision of any
federal court, but it is bound by the decisions of the United
States Supreme Court."'" (quoting Weems v. Jefferson-Pilot
Life Ins. Co., 663 So. 2d 905, 913 (Ala. 1995), quoting in
turn Ex parte Gurganus, 603 So. 2d 903, 908 (Ala. 1992)));
Ingram v. American Chambers Life Ins. Co., 643 So. 2d 575, 577
(Ala. 1994) ("Under Article VI of the United States
Constitution, we are bound by the decisions of the United
States Supreme Court.").
9
Johnson contends that the MegaSweeps contract is void under §
8-1-150 because, she says, this Court in Barber "held that, as
a matter of Alabama law, playing the MegaSweeps involved the
payment of consideration to gamble." Johnson's brief at 17.
Johnson thus concludes that the arbitration clause in the
MegaSweeps contract is unenforceable because, she argues,
under Alabama law "'when a contract is utterly void, it does
not have any existence even for the protection of one who
relied and acted upon it without notice of its infirmity.'"
Johnson's brief at 15 (quoting Metropolitan Life Ins. Co. v.
Bramlett, 224 Ala. 473, 475, 140 So. 752, 753 (1932)). JCRA,
however, argues that Johnson cannot avoid arbitration by
1061398
The Paragon decision was released after the parties to
6
this appeal submitted their briefs.
The relevant portion of § 34-14A-14, Ala. Code 1975,
7
provides: "A residential home builder, who does not have the
license required, shall not bring or maintain any action to
enforce the provisions of any contract for residential home
building which he or she entered into in violation of this
chapter."
10
challenging the validity or legality of the MegaSweeps
contract as a whole, rather than the arbitration clause
itself. JCRA is correct.
Recently, in Paragon Ltd., Inc. v. Boles, [Ms. 1061255,
December 21, 2007] ___ So. 2d ___, ___ (Ala. 2007), this Court
rejected an argument similar to the one Johnson now makes.6
In that case Emily Boles sued Paragon alleging that Paragon
had breached a construction contract by failing to complete
the construction of a house and overcharging Boles for the
work it had completed. Paragon responded by arguing "that the
construction contract contained a valid and enforceable
arbitration clause, which required that any dispute related to
the contract be settled by arbitration." ___ So. 2d at ___.
Boles argued in response that, "under § 34-14A-14, Ala. Code
1975,[ ] Paragon [could] not maintain an action to enforce any
7
provision of the contract, including the arbitration clause,
1061398
11
because ... Paragon admitted [to the Alabama Home Builders
Licensure Board] that it had engaged in the construction of
Boles's residence without holding a required license."
Paragon, ___ So. 2d at ___.
This Court first noted in Paragon that Boles's argument,
like Johnson's argument in the case now before us, "clearly
attacks Paragon's ability to enforce the contract as a whole
and does not specifically attack the arbitration clause within
the contract." ___ So. 2d at ___. This Court also stated that
"[i]t is well established that challenges to the validity of
the contract as a whole and not specifically to the
arbitration clause within the contract must go to the
arbitrator, not a court." Paragon, ___ So. 2d at ___; see also
Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395,
403-04 (1967) ("Accordingly, if the claim is fraud in the
inducement of the arbitration clause itself -- an issue which
goes to the 'making' of the agreement to arbitrate -- the
federal court may proceed to adjudicate it. But the statutory
language does not permit the federal court to consider claims
of fraud in the inducement of the contract generally."
(footnotes omitted)). Relying on the United States Supreme
Court decision in Buckeye Check Cashing, Inc. v. Cardegna, the
1061398
The dissent argues that Buckeye Check Cashing is
8
distinguishable from this case because in Buckeye Check
Cashing a decision had not yet been made as to whether the
contract at issue was, in fact, void. See Cardegna v. Buckeye
Check Cashing, Inc., 894 So. 2d 860, 863 (Fla. 2005) ("In the
case before us today, however, the underlying contract at
issue would be rendered void from the outset if it were
determined that the contract indeed violated Florida's usury
laws."), rev'd, Buckeye Check Cashing, 546 U.S. 445-46.
Justice
Parker
asserts
that
in
this
case
"[t]he
illegality of the MegaSweeps scheme is ... not an issue on the
12
same decision relied on by the trial court here, this Court in
Paragon concluded that "the arbitration clause in the contract
between Paragon and Boles is enforceable, and it is irrelevant
whether Paragon's actions render the contract as a whole void.
That question is for the arbitrator to decide, not this
Court." Paragon, ___ So. 2d at ___; see also Buckeye Check
Cashing, Inc. v. Cardegna, 546 U.S. at 445-46 ("Prima Paint
and Southland [Corp. v. Keating, 465 U.S. 1 (1984)] ...
establish[ed] three propositions. First, as a matter of
substantive federal arbitration law, an arbitration provision
is severable from the remainder of the contract. Second,
unless the challenge is to the arbitration clause itself, the
issue of the contract's validity is considered by the
arbitrator in the first instance. Third, this arbitration law
applies in state as well as federal courts."). We
8
1061398
table for either an arbitrator or a trial court to decide"
because "in Barber ... this Court clearly and unanimously held
that the MegaSweeps scheme constitutes illegal gambling." ___
So. 2d at ___. This Court in Barber did address "the
MegaSweeps scheme" and declared it to be a gambling operation;
however, neither this Court, nor the trial court, addressed in
that decision what effect the decision would have on the
MegaSweeps contract in this case. This case, therefore, is
legally indistinguishable from Buckeye Check Cashing. Whether
this particular contract is void is a decision for the
arbitrator, and not for this Court or for the trial court (or,
as suggested by the dissent, for the legislature, whose
constitutional mandate is to pass general laws and which is
prohibited by the separation-of-powers doctrine from deciding
the effect of a statute on particular parties in particular
cases). No matter how obvious we might consider the answer to
a question, we cannot answer that question with legal effect
absent the jurisdiction to do so. Moreover, the question
whether the MegaSweeps contract may later be deemed void or
merely voidable under state law is not of consequence when
deciding whether the arbitration clause in that contract is
severable and enforceable. See Buckeye Check Cashing, 546
U.S. at 446 ("In declining to apply Prima Paint [Corp. v.
Flood & Conklin Mfg. Co., 388 U.S. 395 (1967)]'s rule of
severability, the Florida Supreme Court relied on the
distinction between void and voidable contracts. ... Prima
Paint makes this conclusion irrelevant. That case rejected
application of state severability rules to the arbitration
agreement without discussing whether the challenge at issue
would have rendered the contract void or voidable."). See also
Paragon, ___ So. 2d at ___ ("Therefore, the arbitration clause
in the contract between Paragon and Boles is enforceable, and
it is irrelevant whether Paragon's actions render the contract
as a whole void. That question is for the arbitrator to
decide, not this Court.").
13
concluded Paragon by stating that "the arbitration clause is
enforceable even if the contract as a whole is later found to
be void." Paragon, ___ So. 2d at ___.
1061398
14
The case before us is closely analogous to Paragon.
Johnson emphasizes that in this case "there is no relevant
determination to be made as to the validity of the MegaSweeps
contracts under § 8-1-150(a) that has not already been finally
established as a matter of Alabama law in Barber [v. Jefferson
County Racing Ass'n, Inc., 960 So. 2d 599 (Ala. 2006)]."
Johnson's brief at 19. She further contends that
"[this] Court examined the MegaSweeps itself and
determined that, as a matter of Alabama law, the
MegaSweeps itself was illegal gambling and, more
specifically,
that
it
involved
gambling
consideration.
And
under
§
8-1-150(a),
the
existence of gambling consideration is the only
issue in the determination of whether the MegaSweeps
contracts were void ab initio."
Johnson's brief at 19 (emphasis in the original). Similarly,
however, at the time Paragon asserted arbitration as a defense
to litigation, it had "entered into a consent agreement with
the Alabama Home Builders Licensure Board in which Paragon
admitted that it had engaged in the construction of Boles's
residence without holding a required license." Paragon, ___
So. 2d at ___. Thus, the sole question under § 34-14A-14 as
to whether Paragon could "bring or maintain any action to
enforce the provisions of any contract for residential home
building which he or she entered into" was already answered --
1061398
The dissent argues that the MegaSweeps contract is void
9
as a whole under § 8-1-150(a), Ala. Code 1975, because it is
founded on gambling consideration and, thus, that "the
arbitration clause is just as void as the rest of the
contract." ___ So. 2d at ___. However, as noted above, no
court has made a determination as to the status of the
MegaSweeps contract; thus, as the United States Supreme Court
noted in Buckeye Check Cashing: "[U]nless the challenge is to
the arbitration clause itself, the issue of the contract's
validity is considered by the arbitrator in the first
instance." 546 U.S. at 445-46.
15
Paragon did not have the "license required." Nevertheless, we
held in Paragon that arbitration was required. Applying our
decision in Paragon to the facts of this case, we conclude
that, like the construction contract in Paragon, "the
arbitration clause in the [MegaSweeps] contract between [JCRA]
and [Johnson] is enforceable, and it is irrelevant whether
[JCRA]'s actions render the contract as a whole void. That
question is for the arbitrator to decide, not this Court."9
Paragon, ___ So. 2d at ___. Therefore the trial court did not
err in determining that a contract calling for arbitration
exists.
C. Validity of the Arbitration Provision
Johnson argues alternatively that the trial court erred
when it compelled Johnson to arbitrate her claims against JCRA
because "the arbitration provision at issue is and always was
1061398
16
void under its own terms." Johnson's brief at 21. The
Supreme Court of the United States noted in Prima Paint that
a federal district court may adjudicate "an issue which goes
to the 'making' of the agreement to arbitrate," such as fraud
in the inducement. 388 U.S. at 403-04. As the Supreme Court
made clear in Buckeye Check Cashing, "unless the challenge is
to the arbitration clause itself, the issue of the contract's
validity is considered by the arbitrator." 546 U.S. at 445-46.
Johnson asserts that the first provision in the MegaSweeps
"Official Rules," which Johnson characterizes as a "separate
addendum"
to
the
MegaSweeps
"contracts,"
"expressly
provid[es]
that the Rules are void and unenforceable if the MegaSweeps is
'prohibited by law.'" Johnson's brief at 21. Rule 1 of the
"Quincy's MegaSweeps Official Sweepstakes Rules" provides:
"1. No Purchase Necessary to Win. A purchase
will not improve the chance of winning. Void where
prohibited by law."
Thus, Johnson argues that the void-where-prohibited-by-law
language renders the arbitration clause itself void and
unenforceable.
JCRA responds, first, that the void-where-prohibited-by-
law language should apply only to the rule in which it
appears, i.e., Rule 1, and not to all the official rules as
1061398
17
argued by Johnson. JCRA's brief at 48. Alternatively, JCRA
argues that even if Rule 1 were applicable to all the official
rules,
the
rules
themselves
constitute the MegaSweeps
contract; thus, JCRA contends, this "alternative" argument
does nothing more than rehash Johnson's original argument that
the MegaSweeps contract as a whole is void. JCRA is correct.
Even though Johnson characterizes the official rules as
"a separate addendum to the MegaSweeps contract allegedly
available on the [I]nternet and posted at the MegaSweeps
facility," Johnson provides no citation to the record to
support this proposition, nor does she clarify what, if
anything, is included in the MegaSweeps contract, other than
the "Official Rules." Moreover, as JCRA notes, Rule 1 does
not refer directly to the arbitration provision contained in
Rule 8. In fact, Rule 1 does not refer to any of the other
rules, individually or collectively. Thus, it appears that if
the void-where-prohibited-by-law language were to apply to
anything outside Rule 1, it would appear to apply to the
MegaSweeps contract as a whole.
Johnson does not argue that she was unaware of the
arbitration agreement, that she was fraudulently induced to
enter into the arbitration agreement, that the arbitration
1061398
18
agreement itself is unconscionable, or any other "issue that
goes to the 'making' of the agreement to arbitrate." Prima
Paint, 388 U.S. at 403-04. Instead, Johnson in effect argues
again that the contract containing the arbitration agreement
is void. It is the role of the arbitrator, however, and not
of the court, to determine whether the contract as a whole is
void. Buckeye Check Cashing, supra. Therefore, the trial
court did not err in ordering Johnson to arbitrate her claims.
II. Dismissal of Johnson's Action
After the trial court ordered Johnson to arbitrate her
claims against JCRA and dismissed her action, Johnson moved
the trial court to alter, amend, or vacate its order under
Rule 59(e), Ala. R. Civ. P. In her motion, Johnson reasserted
the arguments she had made in her brief opposing JCRA's motion
to compel arbitration and also argued that the trial court
should have stayed the action instead of dismissing it. The
trial court denied her motion. Johnson now argues that, even
if this Court determines that the trial court was correct in
ordering Johnson to arbitrate her claims, the trial court
exceeded its discretion when it refused to stay her action
pending the outcome of arbitration. We agree.
A. Standard of Review
1061398
We recognize that in other cases, this Court has applied
10
a de novo standard of review; however, in those cases, this
Court was reviewing a trial court's denial of a party's motion
to stay, not reviewing a postjudgment motion in which a party,
for the first time, asks the trial court for a stay. See
Liberty Nat'l Life Ins. Co. v. Douglas, 826 So. 2d 806, 809
(Ala. 2002) ("We review de novo a trial court's denial of a
motion to stay pending arbitration."); Lee v. YES of
Russellville, Inc., 784 So. 2d 1022, 1025 (Ala. 2000) ("A
trial court's denial of a motion to stay proceedings pending
arbitration is reviewable by direct appeal.... Our review of
that decision is de novo.").
Section 3 of the FAA provides:
11
"If any suit or proceeding be brought in any of the
courts of the United States upon any issue referable
19
Our standard of review for rulings on postjudgment
motions is well settled.10
"'In general, whether to grant or to
deny a posttrial motion is within the sound
discretion of the trial court, and the
exercise of that discretion will not be
disturbed on appeal unless by its ruling
the court abused some legal right and the
record plainly shows that the trial court
erred.'"
Hitt v. State of Alabama Pers. Bd., 873 So. 2d 1080, 1085
(Ala. 2003) (quoting Flagstar Enters., Inc. v. Foster, 779 So.
2d 1220, 1221 (Ala. 2000)).
B. Analysis
Johnson argues that she is entitled to a stay as a matter
of right under § 3 of the Federal Arbitration Act ("the FAA")11
1061398
to arbitration under an agreement in writing for
such arbitration, the court in which such suit is
pending, upon being satisfied that the issue
involved in such suit or proceeding is referable to
arbitration under such an agreement, shall on
application of one of the parties stay the trial of
the action until such arbitration has been had in
accordance
with
the
terms
of
the
agreement,
providing the applicant for the stay is not in
default in proceeding with such arbitration."
9 U.S.C. § 3.
Because we conclude that under Alabama law the trial
12
court exceeded its discretion in denying Johnson a stay
pending arbitration, we do not address the applicability of §
3 of the FAA to this case, and whether or when a trial court
has discretion under § 3 to dismiss an action instead of
granting a stay pending arbitration. See Lloyd v. Hovensa,
LLC, 369 F.3d 263, 269 (3d Cir. 2004) ("Here, the plain
language of § 3 affords a district court no discretion to
dismiss a case where one of the parties applies for a stay
pending arbitration."); Choice Hotels, Inc. v. BSR Tropicana
Resort, Inc., 252 F.3d 707, 709 (4th Cir. 2001) ("[T]he FAA
requires a district court, upon motion by any party, to stay
judicial proceedings involving issues covered by written
arbitration agreements."); Adair Bus Sales, Inc. v. Blue Bird
Corp., 25 F.3d 953, 955 (10th Cir. 1994) ("[T]he Federal
20
or, alternatively, that even if she is not entitled to a
mandatory stay, a stay is nonetheless warranted in this case.
We pretermit discussion of whether Johnson is entitled to a
mandatory stay under § 3 of the FAA because we conclude that,
under Alabama law, the trial court exceeded its discretion
when it failed to grant Johnson's postjudgment motion to stay
the proceedings pending the outcome of arbitration.12
1061398
Arbitration Act provides the district court 'shall on
application of one of the parties stay the trial of the action
until such arbitration has been had in accordance with the
terms of the agreement.' 9 U.S.C. § 3. Blue Bird did indeed
move the district court for a stay pending arbitration. The
proper course, therefore, would have been for the district
court to grant Defendant's motion and stay the action pending
arbitration.").
21
Johnson argues that the trial court exceeded its
discretion when it refused to grant her Rule 59(e), Ala. R.
Civ. P., motion, requesting the trial court to stay her action
pending the outcome of arbitration instead of dismissing it.
Although this Court has not squarely addressed how trial
courts should treat an action that has been compelled to
arbitration, this Court has instructed trial courts either to
stay or to dismiss an action in which the trial court has
compelled arbitration. See CitiFinancial Corp., L.L.C. v.
Peoples, 973 So. 2d 332, 341 (Ala. 2007) ("On remand, the
trial court shall grant the motion to compel arbitration and
either issue a stay of these proceedings pending arbitration
or dismiss the case."); Ameriquest Mortgage Co. v. Bentley,
851 So. 2d 458, 462 (Ala. 2002) ("A trial court is required to
stay or dismiss proceedings and to compel arbitration if the
parties have entered into a valid contract containing an
arbitration agreement." (citing Ex parte Colquitt, 808 So. 2d
1061398
22
1018, 1022 (Ala. 2001))). Our previous decisions thus give
implicit support to the proposition that under Alabama law a
trial court has discretion to determine whether an action
compelled to arbitration should be stayed or dismissed, and
today we so hold.
Johnson asserts that a stay, rather than a dismissal, is
warranted in this case because, she notes, the arbitrator may
decline to hear the case if the arbitrator determines that a
valid contract does not exist. Johnson's brief at 29. In
support of this argument, she cites Lewis v. Oakley, 847 So.
2d 307, 330 (Ala. 2002), in which this Court recognized that
where an arbitrator may decline to accept a case "it is
prudent that the trial court retain jurisdiction pending a
decision by the [arbitrator] concerning whether it will accept
this dispute for arbitration."
Johnson also contends that a stay is justified in this
case because an action under § 8-1-150 must be "commenced
within six months from the time of such payment or delivery."
§ 8-1-150(a), Ala. Code 1975. This short statute of
limitations, Johnson argues, "will make it difficult for
absentee class members to pursue their claims in court even if
1061398
See also Mostella v. N&N Motors, 840 So. 2d 877, 880
13
(Ala. 2002)(abrogation on other grounds recognized in Wolff
23
the arbitrator declines jurisdiction." Johnson's brief at 30.
She further contends:
"Because the statute of limitations as to the absent
class members' claims will toll only while the
action is pending ... even a short arbitration will
foreclose the possibility of recovery. ... Because
the trial court dismissed the action instead [of]
staying it, even if Ms. Johnson wins in arbitration,
absentee class members may not be able to recover
against the JCRA."
Johnson's brief at 30.
She directs our attention to Porter v. Colonial Life &
Accident Insurance Co., 828 So. 2d 907, 908 (Ala. 2002), in
which this Court stated:
"We note a potential for injustice. If a
plaintiff's court action be dismissed to enforce an
arbitration agreement, but, through no fault of the
plaintiff's, the arbitration be not concluded or
some of the plaintiff's claims be not arbitrated, a
statute of limitations could bar a refiling of the
unarbitrated
claims
in
court.
Sometimes,
for
instance, an arbitrator's first duty under an
arbitration
agreement
is
to
determine
the
arbitrability of a plaintiff's claims. In such a
case, the arbitrator could rule that some or all of
the plaintiff's claims should be litigated and not
arbitrated. Moreover, a stay, as distinguished from
a dismissal, would likely better conserve the time
and resources of the parties and the trial court
even in the event of a successful arbitration,
inasmuch
as
the
winner
commonly
wants
the
arbitration award reduced to a judgment."13
1061398
Motor Co. v. White, 869 So. 2d 1129, 1135 n. 7 (Ala. 2003))
("When a trial court enters an order compelling arbitration,
a stay of the proceedings in the trial court during the
pendency of the arbitration protects the plaintiff from facing
the prospect of the expiration of an applicable statute of
limitations or from paying another filing fee in the event
future legal proceedings become necessary. An order
compelling arbitration should not constitute an adjudication
on the merits; therefore, a trial court should not dismiss
with prejudice a case in which arbitration is ordered.").
24
JCRA asserts that "Johnson's argument is not that she
herself would be harmed or prejudiced in any way by the trial
court's dismissal of her case, but that other persons who she
wishes to represent ... might be harmed if the arbitrator
ultimately declined jurisdiction." JCRA's brief at 64. JCRA
notes that no class has been certified in this action and that
"no notice of Johnson's putative class action suit was
provided to any other MegaSweeps customers and thus no one has
relied on her lawsuit to resolve any potential [MegaSweeps]
claims." JCRA's brief at 64.
Although no class has been certified, we recognize that
in this case, as there was in Porter, there is a real
potential for injustice. The statute of limitations in § 8-1-
150(a), Ala. Code 1975, is a short one, and, if "through no
fault of [Johnson], the arbitration be not concluded or some
1061398
25
of [Johnson's] claims be not arbitrated, a statute of
limitations could bar a refiling of the unarbitrated claims in
court." Porter, 828 So. 2d at 908. In the case before us, an
arbitrator may well decide that there is no valid contract
containing an arbitration clause and decline jurisdiction.
Then, because of the short statute-of-limitations period, both
Johnson's claims and the claims of the prospective class could
be time-barred. For these reasons, we hold that the trial
court exceeded its discretion when it dismissed, rather than
stayed, Johnson's claims. We, therefore, reverse the decision
of the trial court and remand this case for the trial court to
vacate its dismissal of Johnson's claims and to enter an order
staying her action pending the outcome of the arbitration
proceedings.
Conclusion
The trial court did not err in compelling Johnson to
arbitrate her claims; however, it did exceed its discretion
when it declined to stay Johnson's action pending the outcome
of the arbitration proceedings. Therefore, we affirm the
trial court's order insofar as it compels Johnson to arbitrate
her claim against JCRA but reverse it insofar as it dismisses
Johnson's action, and we remand the case for the trial court
1061398
26
to enter an order staying this action pending the outcome of
the arbitration proceedings.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, and Bolin,
JJ., concur.
Murdock, J., concurs in the result.
Parker, J., concurs in part and dissents in part.
1061398
27
PARKER, Justice (concurring in part and dissenting in part).
In § 8-1-150(a), Ala. Code 1975, the Legislature has
clearly articulated the position of the State of Alabama on
gambling: "All contracts founded in whole or in part on a
gambling consideration are void." The language could hardly
be more explicit. The statute declares that "[a]ll
contracts," not just some, are "void," not voidable, if those
contracts are founded "in whole or in part on a gambling
consideration."
The Jefferson County Racing Association, Inc. ("JCRA"),
argues that when a customer buys a cybertime card to engage in
the MegaSweeps activity, that customer enters into a contract
with JCRA. The back side of the card states: "All rules and
regulations are available at Quincy's Cashier locations," and
"Your participation in this program is your acceptance and
agreement with these rules." Rule 8 of those rules is an
arbitration clause. However, the customer does not receive or
see this card until after he has purchased it and has thereby
entered into this alleged contract.
Even if a contract is formed between JCRA and the
customer, and even if that contract does include the posted
rules -- including the arbitration clause -- that contract is,
1061398
28
according to § 8-1-150(a), "void." If, as JCRA insists, the
arbitration clause is part of that (void) contract, then the
arbitration clause is just as void as the rest of the
contract. As distinguished from a voidable contract, a void
contract is the same as a nonexistent contract. Mason v.
Acceptance Loan Co., 850 So. 2d 289, 295 (Ala. 2002). JCRA
insists that the arbitration clause in the contract confers
upon the arbitrator the authority to decide this dispute. But
a void or nonexistent contract cannot confer any authority
upon anyone.
JCRA relies upon Buckeye Check Cashing, Inc. v. Cardegna,
546 U.S. 440 (2006), for the proposition that an arbitrator,
not a court, must decide a challenge to the validity and
enforcement of a contract containing an arbitration clause.
Buckeye Check Cashing involved an allegedly illegal payday
loan, but the illegality of the loan, including the rate of
interest actually charged, was the disputed issue. There is
no dispute in this case as to the illegality of the MegaSweeps
scheme. Only two years ago, in Barber v. Jefferson County
Racing Association, Inc., 960 So. 2d 599 (Ala. 2006), this
Court clearly and unanimously held that the MegaSweeps scheme
constitutes illegal gambling. The illegality of the
1061398
29
MegaSweeps scheme is therefore not an issue on the table for
either an arbitrator or a trial court to decide.
The main opinion contends that, although the Court in
Barber held that the MegaSweeps scheme is an illegal gambling
operation, it did not address the effect of that determination
upon the legality or voidness of a MegaSweeps contract. This
is a distinction with no significance. The Court need not
specifically declare a gambling contract void, because the
Legislature has already done so. Section 8-1-150(a) is clear:
"All contracts founded in whole or in part on a gambling
consideration
are
void."
The
logic
is
simple
and
unmistakable: All gambling contracts are void; MegaSweeps
contracts are gambling contracts; therefore, MegaSweeps
contracts are void.
JCRA contends that even if the contract to purchase a
MegaSweeps card is a void contract, the arbitration clause is
nonetheless severable from the rest of the contract. JCRA's
position is internally inconsistent: It has strenuously argued
that the posted rules are part of the MegaSweeps contract, but
it now wants this Court to hold that some of the rules, but
not all of the rules, are part of the contract. But § 8-1-
150(a) is explicit on this point. It declares that "[a]ll
1061398
30
contracts founded in whole or in part on a gambling
consideration are void." (Emphasis added.) Had the Legislature
intended that some provisions of those contracts not be void,
it could have said so in clear terms, but its language is all-
encompassing and unmistakable. And subsection (a) continues:
"Any person who has paid any money or delivered any
thing of value lost upon any game or wager may
recover such money, thing, or its value by an action
commenced within six months from the time of such
payment or delivery."
§ 8-1-150(a)(emphasis added). The Legislature has clearly
provided that the customer's remedy for losses in an illegal
gambling activity is an action in court, not arbitration
provided by a clause in a contract that is void ab initio.
Nevertheless, the main opinion insists that the United
States Supreme Court noted in Buckeye Check Cashing that
"unless the challenge is to the arbitration clause itself, the
issue of the contract's validity is considered by the
arbitrator in the first instance." 546 U.S. at 445-46.
However, Buckeye Check Cashing did not extend to a fact
situation like the one here. In determining what kinds of
contracts must be submitted to arbitration, the Supreme Court
stated that "[t]here can be no doubt that 'contract' as used
this last time [referring to its use in Prima Paint Corp. v.
1061398
31
Flood & Conklin Mfg. Co., 388 U.S. 395. 412-13 (1967),] must
include contracts that later prove to be void." Buckeye Check
Cashing, 546 U.S. at 448. In this case, the MegaSweeps
contract has already been proven void by the legislative
declaration followed by the judicial determination. I
therefore believe that this case can be distinguished from
Buckeye Check Cashing.
Finally, I note that the posted Quincy's MegaSweeps
Official Sweepstakes Rules declare themselves to be "[v]oid
where prohibited by law." This declaration is found at the
beginning of the rules in Paragraph 1 and appears to apply to
the entire rules. Paragraph 2 provides that "[t]he
Sweepstakes is subject to all federal, state and local laws
and regulations, including without limitation Ala. Code § 8-
19D-1 et seq. and Ala. Atty. Gen. Ops. 1999-28 and 2005-173."
The rules contain no severability clause or any other language
that would suggest that the void-where-prohibited-by-law
provision applies to anything less than the entire set of
rules. If, as JCRA insists, the rules are part of the
contract, then by operation of the rules themselves, the
arbitration clause is void.
1061398
32
Because I believe that a void and illegal contract cannot
confer authority upon an arbitrator, and because I believe
that the facts of this case –- a "contract" consisting of a
card the customer receives only after paying for it, a
contract that allegedly incorporates rules that declare
themselves "[v]oid where prohibited by law," and a statute
that not only declares such contracts void but also provides
that an action in court is the customer's remedy -- present a
situation not contemplated in Buckeye Check Cashing, I dissent
as to that holding of the majority.
However, when a trial court orders a case to arbitration,
the court should stay the proceedings rather than dismiss the
case, so that the court can reassume jurisdiction if the
parties change their minds about arbitration, if the
arbitration process breaks down, or if a party needs to
enforce an arbitration agreement or award in court, or to toll
the statute of limitations. Accordingly, I concur with the
majority's ruling that the trial court exceeded its discretion
in dismissing Johnson's complaint, and I agree with the
majority that the proper course would have been for the trial
court to stay the action pending arbitration. | June 27, 2008 |
a1bfe39a-37fc-44bf-b234-a90ad1410fb7 | Mary Ann Johnson and Cheryl Johnson, individually and as next friend of Samuel Johnson, a minor v. Willie L. Strain et al. | N/A | 1071028 | 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
_________________________
1071028
_________________________
Mary Ann Johnson and Cheryl Johnson, individually
and as next friend of Samuel Johnson, a minor
v.
Willie L. Strain et al.
Appeal from Macon Circuit Court
(CV-03-66)
WOODALL, Justice.
Mary Ann Johnson and Cheryl Johnson, individually and as
next friend of Samuel Johnson, a minor, appeal from the trial
court's denial of their motion for a new trial. We reverse and
remand.
1071028
2
After Mary Ann Johnson and Samuel Johnson, a minor, were
injured in a house fire, Mary Ann and Cheryl Johnson,
individually and as next friend of Samuel, filed a personal-
injury action against Willie L. Strain and Darryl O. Strain,
the owners of the house that was being leased to the Johnsons,
and Mendy Strain, the wife of Willie L. Strain. Ultimately,
a jury returned verdicts in favor of the Strains, and the
trial court entered its judgments accordingly.
On March 11, 2008, the Johnsons filed a motion for a new
trial. Relevant to this appeal is what the Johnsons describe
as "a juror impropriety issue." Johnsons' brief, at 3. In
that regard, the motion for a new trial alleged, in pertinent
part:
"12. Secondly, one of the venire selected to be
on the jury was [R.E.L.]. She was number 132 on the
Circuit Clerk's venire list. She was selected among
the first twelve persons to serve. She was not
selected as an alternate juror. Two others were the
alternates: number 190, [D.D.R.,] and number 225,
[M.B.T.]. The alternates ... are believed to have
been properly released prior to the case being
submitted to the jury.
"13. [R.E.L.] has
stated
to
undersigned
counsel,
Richard Lawrence (by phone on 2/21/08 and in person
on 3/7/08), and also to Scott Johnson, trial co-
counsel (in person on 3/7/08), that she was removed
as a juror from this case at the close of the case
(after sitting through all testimony) and was not
1071028
3
allowed to take part in the deliberations of the
jury.
"14. The Circuit Clerk's records show that
number 190, [D.D.R.,] and number 225, [M.B.T.,] were
the alternate jurors in this case. As noted above,
[they] are believed to have been properly removed
from the jury prior to the jury beginning their
deliberations.
"15. Rule 47 of the Alabama Rules of Civil
Procedure addresses the selection of jurors and
alternate jurors.
"16. There was no basis for the removal of
[R.E.L.] from the jury. Such removal was without
the knowledge of the undersigned counsel.
"17. The [Johnsons] had a right to have the
case
decided
by
the
jury
selected.
Alabama
Constitution 1901, section 11.
"18. The [Johnsons] request that they be
allowed to present oral testimony on this issue.
The Comments to Rule 59 note that oral testimony may
be taken on a motion for a new trial.
"19. Alternatively, should the evidence be that
the juror in question in fact took part in the
deliberations of the jury but has no memory of doing
so, the [Johnsons] allege that a juror of unsound
mind took part in deciding the instant case, and
that such was not disclosed prior to jury selection.
Sanders v. Scarvey, 284 Ala. 215, 218-219, 224 So.
2d 247 (1969); § 12-16-150, Code of Alabama, 1975.
"WHEREFORE, the Plaintiffs, Mary Ann Johnson,
Cheryl Johnson, individually; and Cheryl Johnson as
next
of
friend
of
Samuel
Johnson,
a
minor,
respectfully pray that this motion be set for
hearing for the taking of testimony and for
argument, and that at the conclusion of the hearing
1071028
4
that this Honorable Court enter an order granting
the Plaintiffs a new trial."
(Emphasis added.) The day after the motion was filed, the
trial court denied it without granting the hearing the
Johnsons requested. The Johnsons' appeal presents a single
issue, namely, whether the trial court erred in denying the
motion for a new trial without granting the requested hearing.
In Flagstar Enterprises, Inc. v. Foster, 779 So. 2d 1220,
1221 (Ala. 2000), this Court stated:
"In general, whether to grant or deny a
posttrial motion is within the sound discretion of
the trial court, and the exercise of that discretion
will not be disturbed on appeal unless by its ruling
the court abused some legal right and the record
plainly shows that the trial court erred. See Green
Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38
(Ala. 1990). However, if a party requests a hearing
on its motions for a new trial, the court must grant
the request. Rule 59(g), Ala. R. Civ. P. See Walls
v. Bank of Prattville, 554 So. 2d 381, 382 (Ala.
1989) ('[W]here a hearing on a motion for [a] new
trial is requested pursuant to Rule 59(g), the trial
court errs in not granting such a hearing.').
Although it is error for the trial court not to
grant such a hearing, this error is not necessarily
reversible error. For example, if an appellate
court determines that there was no probable merit to
the motion, it may affirm based on the harmless-
error rule. See Rule 45, Ala. R. App. P.; and
Kitchens v. Maye, 623 So. 2d 1082, 1088 (Ala.
1993)('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"')."
1071028
5
See also Unicare, Inc. v. Hood, 823 So. 2d 1252, 1253 (Ala.
2001)("This Court has held that when a hearing is requested
pursuant to Rule 59(g), the trial court errs in not granting
a hearing.").
The
Johnsons
unambiguously
requested
a
hearing;
therefore, the trial court erred in not affording them an
opportunity to be heard on their motion for a new trial.
Based upon the record before this Court, we cannot conclude
"that
there
was
no
probable
merit
to
the
motion."
Consequently, we may not affirm the judgments based on the
harmless-error rule.
For the foregoing reasons, the judgments of the trial
court are reversed, and the cause is remanded for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and See, Smith, and Parker, JJ., concur. | November 21, 2008 |
82f58f9d-68a4-454a-a75f-b749166ebe23 | Portofino Seaport Village, LLC v. William A. Welch and Hawkins-Cobb, Inc. | N/A | 1070051 | Alabama | Alabama Supreme Court | REL: 8/22/08
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
____________________
1070051
____________________
Portofino Seaport Village, LLC
v.
William A. Welch and Hawkins-Cobb, Inc.
Appeal from Baldwin Circuit Court
(CV-05-1082)
SEE, Justice.
Portofino Seaport Village, LLC ("Portofino"), appeals
from a judgment in favor of William A. Welch and Hawkins-Cobb,
Inc., on Portofino's counterclaim of unjust enrichment
stemming from a failed real-estate transaction. We affirm.
1070051
Welch, Hawkins-Cobb, and Wright had previously worked
1
together on a number of real-estate-development projects.
Typically, Wright would develop land owned by Welch and
Hawkins-Cobb, and, after successful development, Wright would
be compensated with a share of the profits from the
development.
Those plans included an RV park, a golf course, and a
2
marina, none of which ever materialized.
The presence of wetland areas on the property made the
3
entitlements necessary. The annexation was required in order
to obtain zoning approval for the proposed high-density
development; the county zoning regulations did not allow such
2
Facts and Procedural History
Welch and Hawkins-Cobb owned a 267-acre parcel of land
("the property") along the Fort Morgan Parkway in Baldwin
County. Welch and Hawkins-Cobb sought the assistance of
Roderick Wright in improving the marketability and value of
the property. Over a period of several years, Wright
1
conceptualized various development plans for the property.2
In 1999, Wright conceived a plan for the construction of a
high-rise residential tower and related amenities. In order
to
construct
the
development,
Wright
had
to
obtain
entitlements from the Alabama Department of Environmental
Management and the United States Army Corps of Engineers and
also had to secure annexation of the property into the City of
Gulf Shores.
3
1070051
high-density development.
Pointe Development had two shareholders, Wright and his
4
wife.
3
In April 2004, Welch and Hawkins-Cobb decided that they
preferred to sell the property rather than develop it. On
April 29, 2004, Wright executed a letter of intent ("LOI")
with Welch and Hawkins-Cobb, pursuant to which Wright would
purchase the property for $12.5 million. The LOI required
Welch and Hawkins-Cobb to cooperate with Wright's effort to
have the property annexed into Gulf Shores, and it provided
for a period of inspection and due diligence within which
Wright could evaluate the property.
In June 2004, Wright, as president and chief executive
officer of Pointe Development of Destin, Inc. ("Pointe
Development"), hired Volkert & Associates, Inc. ("Volkert"),
4
to assist him with the annexation of the property and in
acquiring the entitlements necessary for the development. On
December 6, 2004, Gulf Shores annexed the property pursuant to
an
application
submitted by Volkert.
Wright,
individually and
as
president
and
chief
executive
officer
of
Pointe
Development, executed a real-estate purchase agreement,
1070051
4
pursuant to which he would purchase the property from Welch
and Hawkins-Cobb; the closing date was set for July 31, 2005.
The purchase agreement contained
a
merger clause that provided
that any of the provisions of the LOI that had not been
included in the purchase agreement were of no further force
and effect. Wright and two other investors formed Portofino,
and Pointe Development assigned the purchase agreement to
Portofino. Before the scheduled July 31, 2005, closing date,
Wright informed Welch that Portofino needed an extra 30, 60,
or possibly 90 days to obtain the purchase money and that
Portofino would make additional earnest-money payments as
consideration for the extensions. Welch and Hawkins-Cobb
agreed to the extensions; however, Portofino was unable to
make the additional earnest-money payments; therefore, Welch
and Hawkins-Cobb considered the purchase agreement void and
began entertaining other offers.
On June 12, 2006, Welch and Hawkins-Cobb filed a
complaint in the Baldwin Circuit Court for a judgment
declaring the purchase agreement void because of Portofino's
failure to close the transaction by July 31, 2005. Portofino
counterclaimed, seeking specific performance of the purchase
1070051
5
agreement or, alternatively, damages of $17 million under a
theory of unjust enrichment. The trial court entered a
judgment in favor of Welch and Hawkins-Cobb declaring the
purchase agreement void and denying Portofino's counterclaim
for specific performance. Then, after hearing testimony ore
tenus, the trial court entered a judgment in favor of Welch
and
Hawkins-Cobb
on
Portofino's
unjust-enrichment
counterclaim. Portofino now appeals the denial of its unjust-
enrichment claim.
Issue
Whether the trial court erred in finding that Welch and
Hawkins-Cobb were not unjustly enriched by Portofino's
successful effort to have the property annexed into the City
of Gulf Shores.
Standard of Review
The trial court based its findings on 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.
1070051
6
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., [Ms. 1060370, November 16, 2007] ___ So. 2d ___, ___
(Ala. 2007).
Analysis
Portofino argues that Florida law, not Alabama law,
should apply to its unjust-enrichment counterclaim. To
prevail on a claim of unjust enrichment under Alabama law, a
plaintiff must
show
that:
(1) the defendant
knowingly accepted
and retained a benefit, (2) provided by another, (3) who has
a reasonable expectation of compensation. See American Family
Care, Inc. v. Fox, 642 So. 2d 486, 488 (Ala. 1994). To
prevail on a claim of unjust enrichment under Florida law a
plaintiff must show that: "1) the plaintiff conferred a
benefit on the defendant, who has knowledge of the benefit; 2)
the defendant accepts and retains the conferred benefit; and
1070051
7
3) under the circumstances it would be inequitable for the
defendant to retain the benefit without paying for it."
Timberland Consol. P'ship v. Andrews Land & Timber, Inc., 818
So. 2d 609, 611 (Fla. Dist. Ct. App. 2002). It is not
necessary to determine whether Alabama or Florida law applies
in this case because Portofino has failed to prove unjust
enrichment under either Alabama law or Florida law.
The first requirement of unjust enrichment under either
Alabama law or Florida law is that one party must have
conferred a benefit on another. Portofino argues that it is
undisputed that Portofino's effort to have the property
annexed into Gulf Shores conferred a substantial benefit on
Welch and Hawkins-Cobb. However, the purported benefit of
annexation
was not,
as
Portofino
claims,
undisputed.
Portofino presented the expert testimony of Claude Clark III,
a real-estate appraiser, who stated that annexation of the
property into the City of Gulf Shores doubled the value of the
property based on the increase in allowed development density
versus the density allowed by the county zoning regulations.
Clark testified that if the property was worth $12.5 million
before it was annexed, then it would be worth $25 million
1070051
The purchase agreement between Reed and Welch and
5
Hawkins-Cobb never closed because of the impending threat of
this litigation.
8
after annexation. However, under cross-examination Clark
admitted that if the property had already been annexed at the
time the contract for $12.5 million was signed, the parties to
the contract would have already taken annexation into account
in negotiating that purchase price. In this case, the LOI
anticipated annexation, and the purchase agreement was signed
after the property had been annexed into Gulf Shores.
Additionally, after Portofino failed to close on the property
by the scheduled closing date, Welch and Hawkins-Cobb entered
into a purchase agreement with Mark Reed, a neighboring
landowner, pursuant to which Reed would purchase the property
for $19 million. Reed testified that at the time of his
5
offer he was not aware that the property had been annexed into
Gulf Shores and that he had based his offer on the development
density allowed by the county zoning regulations. Reed also
testified that the property was similar to his property and
that, because neither of the properties was on the beach,
increased development density beyond that allowed by the
county zoning regulations would not necessarily lead to
1070051
9
increased value. From this testimony, it is not apparent that
the annexation of the property conferred any benefit on Welch
and Hawkins-Cobb. Therefore, we discern no palpable error or
manifest injustice in the trial court's finding that Welch and
Hawkins-Cobb were not unjustly enriched by Portofino's
annexation efforts, and we affirm the trial court's judgment.
Conclusion
Portofino has not demonstrated palpable error or manifest
injustice in the trial court's finding that Welch and Hawkins-
Cobb were not unjustly enriched by Portofino's annexation
efforts. Therefore, we affirm the trial court's judgment in
favor of Welch and Hawkins-Cobb on Portofino's unjust-
enrichment counterclaim.
AFFIRMED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | August 22, 2008 |
f7dcd52d-64af-496f-849f-cc6e754f3dab | Ex parte Darryl Dewayne Turner. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: State of Alabama vs. Darryl Dewayne Turner) | N/A | 1061477 | Alabama | Alabama Supreme Court | REL: 6/27/08
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, 2007-2008
_________________________
1061477
_________________________
Ex parte Darryl Dewayne Turner
PETITION FOR WRIT OF MANDAMUS
(In re: State of Alabama
v.
Darryl Dewayne Turner)
(Limestone Circuit Court, CC-99-318.60;
Court of Criminal Appeals, CR-06-1033)
SEE, Justice.
Darryl Dewayne Turner ("Turner") petitions this Court for
the writ of mandamus directing the Court of Criminal Appeals
1061477
Section 13A-5-40(a), Ala. Code 1975, reads, in pertinent
1
part:
"(a) The following are capital offenses:
"....
"(2) Murder by the defendant during a
robbery in the first degree or an attempt
thereof committed by the defendant.
"(3) Murder by the defendant during a
rape in the first or second degree or an
attempt thereof committed by the defendant;
or murder by defendant during sodomy in the
first or second degree or an attempt
thereof committed by the defendant."
2
to vacate its June 29, 2007, order in which it instructed
Judge James W. Woodruff, Jr., to set aside his order granting
discovery of certain institutional files and prosecution
records. We conclude that Turner has not demonstrated a clear
legal right to the relief sought; therefore, we deny the
petition.
Facts and Procedural History
In 1999 Turner was convicted under §§ 13A-5-40(a)(2) and
(a)(3), Ala. Code 1975, of the capital murder of Barbara
1
Wilson and was sentenced to death. In October 2006, Turner
petitioned the Limestone Circuit Court for postconviction
relief under Rule 32, Ala. R. Crim. P., alleging ineffective
1061477
3
assistance of counsel at both the guilt phase and the penalty
phase of his capital-murder trial.
Turner
moved
the
trial
court
for
discovery
of
institutional files and prosecution records that he alleges
are "necessary to a fair Rule 32 evidentiary hearing."
Petition at Exhibit C, p. 1, and Exhibit D, p. 1. After a
hearing on the discovery requests, the trial court granted
Turner's motions as to (1) records related to the employment,
training, discipline, and promotions or demotions of Detective
Heath Emerson and Officer Lee Kennemer, who testified at his
capital-murder trial; (2) records maintained by the Limestone
County jail, where Turner was incarcerated pending his
capital-murder trial; (3) records maintained by the Alabama
Department of Human Resources related to Turner; and (4)
records maintained by the Alabama Department of Human
Resources related to Turner's mother, father, grandmother, and
anyone else who had claimed Turner as a dependant. Petition at
Exhibit G, pp. 1-2. The trial court also ordered the State
"to produce the entire Prosecution file kept and maintained in
connection with the investigation and trial of Darryl Turner."
Petition at Exhibit G, p. 2. The trial court denied Turner's
1061477
4
motion as to the records of the Alabama Department of Forensic
Sciences, as well as the institutional records related to the
administration of death by lethal injection. Petition at
Exhibit G, p. 2.
Following the issuance of the discovery order, the State
petitioned the Court of Criminal Appeals for the writ of
mandamus directing the trial court to vacate its discovery
order, except insofar as it related to the files of the
Department of Human Resources on Turner himself. The Court of
Criminal Appeals, concluding that Turner had failed to meet
his burden to show good cause for the requested discovery,
granted the State's petition and issued the writ. State v.
Turner, 976 So. 2d 508 (Ala. Crim. App. 2007) (hereinafter
"Turner"). Turner now petitions this Court for the writ of
mandamus directing the Court of Criminal Appeals to vacate its
writ.
Issues
Turner presents three grounds on which, he argues, he is
entitled to the writ of mandamus from this Court. First,
Turner argues that the Court of Criminal Appeals erred in
issuing its writ of mandamus because, he says, the State had
1061477
5
adequate remedies other than petitioning for the writ of
mandamus. Second, he argues that in reviewing the State's
petition for mandamus relief, the Court of Criminal Appeals
addressed the merits of his claim, instead of limiting its
analysis to whether the claims are facially meritorious.
Third, Turner argues that the Court of Criminal Appeals erred
in concluding that he had not demonstrated good cause for the
requested discovery.
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)
(quoting Ex parte Butts, 775 So. 2d 173, 176 (Ala. 2000),
quoting in turn Ex parte United Serv. Stations, Inc., 628 So.
2d 501, 503 (Ala. 1993)).
Rule 21(e)(1), Ala. R. App. P., provides:
"A decision of a court of appeals on an original
petition for writ of mandamus ... may be reviewed de
novo in the supreme court .... If an original
petition has been granted by the court of appeals,
review may be had by filing in the supreme court a
petition for writ of mandamus or prohibition or
1061477
6
other extraordinary writ directed to the court of
appeals, together with a copy of the proceedings in
the court of appeals, including the order granting
the writ."
Turner is seeking review of the writ of mandamus issued by the
Court of Criminal Appeals directing the trial court to vacate
its discovery order, and he has otherwise complied with the
requirements of Rule 21(e). Therefore, mandamus is an
appropriate remedy, and we review de novo the merits of
Turner's petition.
Analysis
I.
Turner first argues that the State is not entitled to
mandamus relief because it had other adequate remedies.
Specifically, Turner argues that the State could have moved
the trial court for reconsideration of the discovery order and
could have raised its concerns on appeal. The State argues in
response that "both this Court and the Court of Criminal
Appeals have repeatedly held that mandamus is the proper
mechanism to contest discovery orders in Rule 32 proceedings
and criminal cases." State's brief at 10. We agree with the
State.
1061477
7
In Ex parte Land, 775 So. 2d 847 (Ala. 2000), the
petitioner, Land, sought postconviction relief from the trial
court under Rule 32, Ala. R. Crim. P., alleging ineffective
assistance of counsel and moved the trial court to allow
discovery of various prosecution files and institutional
records. The trial court granted the motion as to some of
Land's discovery requests but denied it as to others. Land
petitioned the Court of Criminal Appeals for mandamus relief
related to the discovery requests the trial court had denied.
The Court of Criminal Appeals denied that petition, and Land
sought the writ of mandamus from this Court under Rule 21(e),
Ala. R. App. P. In addressing Land's petition, we set forth
the elements required for mandamus relief and stated:
"This Court has held that a petition for the writ of
mandamus is the proper means for seeking appellate
review of a trial court's discovery order. As noted
above, Land has complied with Rule 21, Ala. R. App.
P., and the State has refused to produce the
materials he sought. Therefore, the only issues to
be resolved are (1) whether the State has an
imperative duty to give Land access to the materials
requested and (2) whether Land has shown a clear
legal right to the discovery order he seeks."
775 So. 2d at 850 (citations omitted). See also State v.
Isbell, [Ms. 1061115, Nov. 30, 2007] ___ So. 2d ___, ___ (Ala.
2007) ("'This Court has held that a petition for the writ of
1061477
8
mandamus is the proper means for seeking appellate review of
a trial court's discovery order.'" (quoting Ex parte Land, 775
So. 2d at 850)). We then addressed the merits of Land's
petition, ultimately concluding that Land had demonstrated a
clear legal right to mandamus relief.
In Ex parte Perkins, 941 So. 2d 242 (Ala. 2006), we
reaffirmed our holding in Ex parte Land that "'[a] petition
for a writ of mandamus is the appropriate vehicle for
challenging a trial court's ruling on a discovery motion.'"
941 So. 2d at 245 (quoting Ex parte Steiner, 730 So. 2d 599,
600 (Ala. 1998)). Perkins, like Land, sought mandamus review
of a discovery order related to a Rule 32, Ala. R. Crim. P.,
petition for postconviction relief in which he alleged, among
other things, ineffective assistance of counsel. Perkins had
moved the trial court to allow discovery of certain records
"in the possession of the Alabama Board of Pardons and Paroles
... [and] various Alabama law-enforcement agencies." 941 So.
2d at 244. The trial court denied Perkins's motion, and the
Court of Criminal Appeals denied his petition for the writ of
mandamus. Perkins then petitioned this Court for the writ of
mandamus directing the trial court to grant the discovery
1061477
9
motions. Under the standard recited above, we addressed the
merits of Perkins's petition, ultimately denying the petition
on the ground that Perkins had not demonstrated a clear legal
right to the requested discovery.
In this case, Turner, like Perkins and Land, moved the
trial court for discovery related to an ineffective-
assistance-of-counsel claim raised in his Rule 32, Ala. R.
Crim. P., petition for postconviction relief. The trial court
granted Turner's motions for discovery, and the State
petitioned the Court of Criminal Appeals for the writ of
mandamus directing the trial court to vacate that order.
Under our decisions in Ex parte Perkins and Ex parte Land,
mandamus was the proper avenue for appellate review of those
orders. Therefore, we agree with the Court of Criminal
Appeals that "this case [was] correctly before [that] Court by
way of this extraordinary petition." Turner, 976 So. 2d at
510.
II.
Turner argues that the Court of Criminal Appeals, in
issuing the writ of mandamus, "improperly rewrote the
postconviction discovery standard set forth by this Court in
1061477
Rule 39(a)(1)(D), Ala. R. App. P., provides that a
2
petitioner can obtain certiorari review of decisions of the
Court of Criminal Appeals that are "in conflict with prior
decisions of ... the Supreme Court of Alabama." Turner
appears to argue here that the standard applied by the Court
of Criminal Appeals conflicts with the standard set forth by
this Court in Ex parte Land, 775 So. 2d at 853.
10
[Ex parte] Land ... by evaluating the substantive merits of
Mr. Turner's underlying claims." Petition at 11. In Ex parte
Land, we stated:
"[W]e must determine whether Land presented the
trial court with good cause for ordering the
requested discovery. To do that, we must examine
Land's basis for the relief requested in his
postconviction petition and determine whether his
claims are facially meritorious. Only after making
that examination and determination can we determine
whether Land has shown good cause."
775 So. 2d at 853. Turner argues that instead of limiting
itself to determining whether his claims were meritorious on
their face, the Court of Criminal Appeals examined and, in
some cases, adjudicated his claims based on the underlying
merits.
The State contends that although this argument may be an
appropriate argument for certiorari review, it is not a
2
ground on which the Court can award mandamus relief. We
agree. Rule 21(e), Ala. R. App. P., provides that "[a]
decision of a court of appeals on an original petition for
1061477
11
[the] writ of mandamus ... may be reviewed de novo in the
supreme court." The State argued before the Court of Criminal
Appeals that it had a clear legal right to the writ of
mandamus because, it argued, Turner had failed to demonstrate
good cause for the requested discovery. The Court of Criminal
Appeals agreed with the State and issued the writ. Under Rule
21(e), Ala. R. App. P., we review the court of appeals'
decision
de
novo;
therefore,
we
make
an
independent
determination
whether
Turner's
claims
are
facially
meritorious
and whether he has demonstrated good cause for the discovery.
See Ex parte Land, supra. What standard the Court of Criminal
Appeals applied in making its decision is irrelevant to that
determination. Thus, we agree with the State that Turner's
argument that the Court of Criminal Appeals applied the wrong
standard in evaluating the State's petition for the writ of
mandamus is not a ground on which we would grant mandamus
relief, and we deny his petition on this ground.
III.
Turner finally argues that he is entitled to mandamus
relief because he did, in fact, demonstrate good cause for the
requested discovery. In Ex parte Perkins we stated:
1061477
12
"'"[G]ood cause" is the appropriate standard by
which to judge postconviction discovery motions ....
"'...
[I]n
order
to
obtain
discovery,
a
petitioner must allege facts that, if proved, would
entitle him to relief. ... Furthermore, a petitioner
seeking postconviction discovery also must meet the
requirements of Rule 32.6(b), Ala. R. Crim. P.,
which states:
"'"The [Rule 32] petition must contain
a clear and specific statement of the
grounds upon which relief is sought,
including full disclosure of the factual
basis of those grounds. A bare allegation
that a constitutional right has been
violated and mere conclusions of law shall
not be sufficient to warrant any further
proceedings."'"
941 So. 2d at 245 (quoting Ex parte Land, 775 So. 2d at 852-
53). The threshold issue in a good-cause inquiry is whether
the Rule 32 petitioner has presented claims that are facially
meritorious –- that is, whether the petitioner has argued
facts that, if proven, would entitle the petitioner to relief.
See Ex parte Land, 775 So. 2d at 852 ("'[A]n evidentiary
hearing must be held on a [petition for postconviction relief]
which is meritorious on its face, i.e., one which contains
matters and allegations (such as ineffective assistance of
counsel) which, if true, would entitle the petitioner to
relief.'" (quoting Ex parte Boatwright, 471 So. 2d 1257, 1258
1061477
13
(Ala. 1985))). "Only after making that examination and
determination can we determine whether [the petitioner] has
shown good cause." Ex parte Land, 775 So. 2d at 853.
The basis of Turner's Rule 32 petition was that his
counsel rendered ineffective assistance during both the guilt
phase and the penalty phase of his trial. "[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 the petitioner." Ex parte Land, 775 So. 2d at 850
(citing Strickland v. Washington, 466 U.S. 668 (1984)).
"[T]he standard for showing prejudice [is] stated in
Strickland, in which the Supreme Court held: '[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 at 850 (quoting
Strickland, 466 U.S. at 694).
A. Records Related to Detective Emerson and Officer Kennemer
1061477
14
Turner first argues that he has demonstrated good cause
for the discovery of documents related to "the Employment,
Training, Discipline, and Promotions or Demotions of Detective
Heath Emerson and Officer Lee Kennemer." Petition at 18. He
argues that those records are necessary to prove his claim
that trial counsel rendered ineffective assistance by failing
to impeach Det. Emerson and to adequately cross-examine Det.
Emerson and Officer Kennemer.
Turner argued in his Rule 32 petition that his trial
counsel failed to impeach Det. Emerson's testimony regarding
inconsistent accounts of the crime given by Tavares McCurley,
the cousin of Turner's codefendant, and Det. Emerson's
knowledge of other suspects in the case. Turner argued that
this failure cost "trial counsel ... an opportunity to
challenge not only the testimony of this particular witness,
but also the very conduct of the police department's
investigation." Petition at Exhibit A, p. 57. Turner also
argued that trial counsel had failed to cross-examine Det.
Emerson and Officer Kennemer regarding their suspicions
concerning the involvement of Trent Rainey in the crime and
that "[i]f trial counsel had pursued this line of questioning,
1061477
15
they could have exposed the Athens Police Department's
premature focus on Mr. Turner as the primary suspect" and cast
"significant doubt ... on the extent to which Mr. Turner was
culpable for the charged crimes." Petition at Exhibit A, p.
59. Finally, Turner argued that trial counsel failed to
cross-examine Det. Emerson and Officer Kennemer regarding the
inconsistencies in statements concerning the crime made by
McCurley and Christopher Harris, a codefendant, and argued
that trial counsel, therefore, "missed not only an opportunity
to cast doubt on the shoddy police work that went into
investigating the Wilson death, but also a chance to discredit
the story implicating Mr. Turner as the primary suspect."
Petition at Exhibit A, p. 61.
Although Turner does allege some harm from trial
counsel's allegedly deficient assistance, we cannot say that
these allegations, if proven, would demonstrate that "'there
is
a
reasonable
probability
that,
but
for
counsel's
unprofessional errors, the result would have been different.'"
Ex parte Land, 775 So. 2d at 850 (quoting Strickland, 466 U.S.
at 694). Therefore, we cannot say that Turner has
demonstrated that he was prejudiced by the alleged failures.
1061477
16
Turner alleges that trial counsel's failure to impeach Det.
Emerson cost him an opportunity to cast doubt on the police
investigation into Wilson's murder, but Turner does not allege
that this was the only such opportunity or that there is a
reasonable probability that but for the loss of this
particular opportunity the outcome of his case would have been
different.
Similarly, Turner alleges that trial counsel's failure to
cross-examine Det. Emerson and Officer Kennemer on specific
issues cost him an opportunity to cast doubt on his
culpability and to discredit the story implicating him as the
primary suspect, but he fails to present facts or to argue
that this was the only such opportunity or that trial
counsel's failure at this juncture probably affected the
outcome of the trial. Thus, we conclude that Turner has not
demonstrated
that,
"'but
for
counsel's
[allegedly]
unprofessional errors, the result would have been different'"
and, therefore, that he has not met his burden to allege facts
that, if proved, would entitle him to relief. See Ex parte
Land, supra.
1061477
17
It further appears that even if we were to find Turner's
claims to be facially meritorious, he has not demonstrated
good cause for the requested discovery. Turner argues that
"discovery
related
to
the
prior
behavior
of
Detective Emerson and Officer Kennemer is essential
to proving Mr. Turner's claims that trial counsel
were ineffective for failing to impeach false
testimony. Likewise, records related to training
and protocols would have been highly material to
challenging the illegal arrest or impeaching the
testimony of crucial State witnesses."
Petition at 20-21. However, it is unclear how Det. Emerson's
training and employment history would have helped Turner
establish his ineffective-assistance-of-counsel claim that
trial counsel failed to use the police record of Det.
Emerson's interview with McCurley concerning the crime to
impeach Det. Emerson's testimony. Similarly, it is unclear
how the requested records would relate to Turner's allegation
that trial counsel was ineffective for failing to cross-
examine Det. Emerson and Officer Kennemer as to their
suspicions of other suspects or the inconsistent testimony of
certain witnesses. Instead, Turner's request appears to be
the type of "fishing expedition" warned against in Ex parte
Land: "[W]e caution that postconviction discovery does not
provide a petitioner with a right to 'fish' through official
1061477
18
files and that it 'is not a device for investigating possible
claims, but a means of vindicating actual claims.'" 775 So. 2d
at 852 (quoting People v. Gonzales, 51 Cal. 3d 1179, 1260, 800
P.2d 1159, 1206, 275 Cal. Rptr. 729, 776 (1990)). Therefore,
even if we were to find facially meritorious Turner's claim
that trial counsel rendered ineffective assistance by failing
to impeach Det. Emerson with certain documents and failing to
cross-examine Det. Emerson and Officer Kennemer as to certain
issues, we would conclude that Turner has not demonstrated
good cause for the requested discovery.
We deny Turner's petition for the writ of mandamus as to
this issue.
B. Limestone County Jail Records
Turner argues that he has demonstrated good cause for
discovery of the Limestone County jail records. In order to
determine whether Turner has demonstrated good cause for the
discovery of the jail records, we must first examine whether
this discovery relates to a facially meritorious claim. See Ex
parte Land, supra. Turner argues in his mandamus petition
before this Court that the requested records are related to
his claim that "trial counsel were ineffective for failing to
1061477
19
present certain mitigating evidence, specifically including
evidence related to a lack of disciplinary infractions while
Mr. Turner was incarcerated." Petition at 23. In his Rule 32
petition, Turner generally alleged that he was "denied
[effective] assistance [of counsel] by [counsel's] failure to
adequately present a large quantity of available mitigation
evidence," Petition at Exhibit A, p. 85, and that "[h]ad trial
counsel
conducted
a
reasonably
adequate
investigation,
developed a reasonable mitigation strategy, and presented the
wealth of available mitigating evidence, there is a reasonable
probability that Mr. Turner would not have been sentenced to
death." Petition at Exhibit A, p. 106. With regard to his
behavior while incarcerated, Turner specifically alleged that
"[c]ounsel failed to present testimony from Sergeant James
Pugh that Mr. Turner committed no disciplinary infractions
while incarcerated ... pending trial." Petition at Exhibit A,
p. 105. As noted previously, in order to demonstrate good
cause for the discovery sought, Turner must first establish
that his claims are meritorious on their face. See Ex parte
Land, supra. We hold that as to this claim Turner has met
this burden.
1061477
20
In Ex parte Land, the petitioner argued that his trial
counsel was ineffective for, among other things, failing to
present mitigating evidence at the penalty phase of trial,
including "evidence that he adjusts well to incarceration."
775 So. 2d at 853. The State argued, among other things, that
Land's claims were not facially meritorious. We disagreed,
stating:
"Land's claims, if proved to be true, would entitle
him to relief. The United States Court of Appeals
for the Eleventh Circuit has held that trial
counsel's failure to investigate the possibility of
mitigating
evidence
is,
per
se,
deficient
performance. ... Furthermore, trial counsel may be
found ineffective for failing to present evidence of
adjustment to incarceration .... See Skipper v.
South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.
2d 1 (1986) (holding that a capital defendant must
be permitted at the penalty phase of his trial to
introduce evidence of adjustment and good behavior
while incarcerated)."
775 So. 2d at 853-54. Under our decision in Ex parte Land,
and in light of Turner's argument that if trial counsel had
presented the mitigating evidence, including the evidence
shown by the records of the Limestone County jail relating to
his incarceration there, he would likely not have been
sentenced to death, Turner's claim that trial counsel failed
1061477
21
to present mitigating evidence regarding his behavior while
incarcerated is facially meritorious.
We now address whether Turner has otherwise demonstrated
good cause for discovery of the Limestone County jail records.
See Ex parte Land, 775 So. 2d at 853 ("[W]e must examine
Land's basis for the relief requested in his postconviction
petition and determine whether his claims are facially
meritorious. Only after making that examination and
determination can we determine whether Land has shown good
cause."). The Court of Criminal Appeals concluded that "some
of the information which Turner sought was, in part,
cumulative to other evidence that had been presented" and that
"'[t]his information was clearly available through other less
intrusive means; therefore, [the petitioner] can show no good
cause for disclosing information related to this claim.'"
Turner, 976 So. 2d at 517 (quoting Jackson v. State, 910 So.
2d 797, 808 (Ala. Crim. App. 2005)). Turner argues that he
has demonstrated good cause for discovery of the Limestone
County jail records because, he says, the information in those
records (1) was not cumulative of other evidence admitted at
1061477
22
trial, (2) was not available through other sources, and (3)
was of greater evidentiary value than testimony.
We agree with Turner that the requested records are not
cumulative. Before concluding that the evidence would be
cumulative "in part," the Court of Criminal Appeals listed the
following evidence:
"The record shows that the sentencing hearing
before the jury was waived after Turner became
disruptive when the jury returned a verdict finding
him guilty of capital murder. During the sentencing
hearing before the circuit court the defendant told
the court that he had become a Christian while he
was incarcerated. The probation officer's report
also states that Turner is a born-again Christian.
Turner's mother and his grandfather testified that
they were shocked by Turner's involvement in the
murder because, they said, such conduct was totally
uncharacteristic for Turner."
Turner, 976 So. 2d at 508. Although this evidence may fall
into the category of mitigating evidence, it does not appear
that this evidence would speak to whether Turner had had
disciplinary infractions while incarcerated. Therefore, we
agree with Turner that the requested discovery is not
cumulative of other evidence admitted at trial. Cf. Ex parte
Perkins, 941 So. 2d at 249 ("Apparently, Perkins's trial
counsel did perform an investigation and did present evidence
sufficient to convince the trial court of the existence of
1061477
23
mitigating factors substantially similar to that Perkins now
seeks to prove in his postconviction petition. Therefore, we
conclude that the documentary evidence in the form of law-
enforcement records Perkins now seeks would simply be
cumulative of the evidence his counsel presented during the
sentence phase of his trial.").
Turner next argues that the information in the Limestone
County jail records is not available by other means because
"[i]t is not plausible to suggest that Mr. Turner or Sergeant
Pugh could personally know all of the information contained in
the
Limestone
County
Jail's
intake,
assessment,
institutional,
personal, disciplinary, medical, psychological, psychiatric,
mental health, and any other records generated or maintained
by the Limestone County Jail relating to Mr. Turner." Petition
at 24. However, Turner's Rule 32 petition does not allege
that trial counsel failed to present any or all of this
information. Instead, the only claim in Turner's Rule 32
petition related to the Limestone County jail records is that
"[c]ounsel failed to present testimony from Sergeant James
Pugh that Mr. Turner committed no disciplinary infractions
while incarcerated at the [Limestone] County Jail pending
1061477
Ex parte Perkins, 920 So. 2d 599, 606 (Ala. Crim. App.
3
2005) (denying Perkins's request for certain records related
to his family's poverty during his childhood because "[w]hen
evidence is available through less intrusive means, a
petitioner fails to establish good cause for requested
discovery" (citing Jackson v. State, 910 So. 2d 797 (Ala.
Crim. App. 2005)); Jackson, 910 So. 2d at 808 ("Certainly,
Jackson could inform his Rule 32 counsel of the identities of
the individuals who visited him while he was incarcerated.
This information was clearly available through other less
intrusive means; therefore, Jackson can show no good cause for
disclosing information related to the claim.").
24
trial." Petition at Exhibit A, p. 105. The information
necessary to vindicate this claim is well within Sgt. James
Pugh's knowledge and would be available through his testimony.
Although the Court of Criminal Appeals has held that a
petitioner fails to show good cause for discovery when the
information sought is available by less intrusive means, we
3
have not had occasion to address this particular statement.
However, in adopting the good-cause standard in Ex parte Land,
we recognized that discovery in postconviction proceedings is
limited, stating:
"We
emphasize
that
this
holding
–-
that
postconviction discovery motions are to be judged by
a good-cause standard –- does not automatically
allow discovery under Rule 32, Ala. R. Crim. P., and
that it does not expand the discovery procedures
within Rule 32.4. ... By adopting this standard, we
are only recognizing that the trial court, upon a
petitioner's showing of good cause, may exercise its
inherent
authority
to
order
discovery
in
a
1061477
25
proceeding for postconviction relief. In addition,
we caution that postconviction discovery does not
provide a petitioner with a right to 'fish' through
official files and that it 'is not a device for
investigating possible claims, but a means of
vindicating actual claims.'"
775 So. 2d at 852 (quoting People v. Gonzales, 51 Cal. 3d at
1260, 800 P.2d at 1206, 275 Cal. Rptr. at 776). In that case,
we cited other jurisdictions that had adopted a "similar 'good
cause' or 'good reason' standard for the postconviction
discovery process." 775 So. 2d at 852. The courts in those
cases also emphasized the limited nature of discovery in
postconviction proceedings. See, e.g., State v. Lewis, 656 So.
2d 1248, 1250 (Fla. 1994) ("In most cases any grounds for
post-conviction relief will appear on the face of the record.
On a motion which sets forth good reason, however, the court
may allow limited discovery into matters which are relevant
and material, and where the discovery is permitted the court
may place limitations on the sources and scope."); People ex
rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 182-84, 526 N.E.2d
131, 134-35, 121 Ill. Dec. 937, 940-41 (1988) ("[T]he range of
issues in a post-conviction proceeding is relatively narrow,
and discovery requirements are correspondingly limited. ... In
deciding whether to permit the taking of a discovery
1061477
26
deposition, the circuit judge should consider, among other
relevant circumstances, the issues presented in the post-
conviction petition, the scope of the discovery sought, the
length of time between the conviction and the post-conviction
proceeding, the burden that the deposition would impose on the
opposing party and on the witness, and the availability of the
desired evidence through other sources."); State v. Marshall,
148 N.J. 89, 270, 690 A.2d 1, 92 (1997) ("[C]onsistent with
our
prior
discovery
jurisprudence,
any
[postconviction-relief]
discovery order should be appropriately narrow and limited.
... '[T]here is no postconviction right to "fish" through
official files for belated grounds of attack on the judgment,
or to confirm mere speculation or hope that a basis for
collateral relief may exist.'" (quoting People v. Gonzalez, 51
Cal. 3d at 1259, 800 P.2d at 1205, 275 Cal. Rptr. at 775)
(citation omitted)).
The rule set forth by the Court of Criminal Appeals in
Jackson v. State, 910 So. 2d 797 (Ala. Crim. App. 2005) –-
that a petitioner cannot show good cause for discovery if the
information sought is available through other less intrusive
means –- is consistent with and furthers our policy that
1061477
27
discovery in the Rule 32 setting is limited to discovery for
which the petitioner has demonstrated good cause. See Ex parte
Land, supra. Turner argues:
"As the trial court recognized at the discovery
hearing: '[Sgt. James Pugh] is not going to probably
remember eleven years ago what went on between him
and an inmate, when he's dealing with hundreds. ...
[T]he best evidence of any kind of disciplinary
infraction is probably beyond the scope of James
Pugh, probably beyond the scope of his current
memory and it's fair to get those records at the
Limestone County jail."
Petition at 24-25. However, Turner has not argued or
presented any evidence to indicate that Sgt. Pugh, in fact,
does not remember him or that Sgt. Pugh cannot testify as to
Turner's lack of disciplinary infractions while incarcerated
at the Limestone County jail. As the State noted at the
disciplinary hearing, "[b]efore [Turner] can establish good
cause [for the Limestone County jail records], [he would] have
to show that [Sgt.] James Pugh doesn't remember this inmate.
The burden is on [him] to establish good cause." Petition at
Exhibit E, p. 27; see also Ex parte Land, 775 So. 2d at 852
("[A] trial court, upon a petitioner's showing of good cause,
may exercise its inherent authority to order discovery in a
proceeding for postconviction relief."). Therefore, we agree
1061477
28
with the Court of Criminal Appeals and with the State that
Turner has not demonstrated good cause for the Limestone
County jail records, because he has not demonstrated that Sgt.
Pugh's testimony would be an insufficient alternative source
for the information necessary to vindicate the claim related
to those records.
Turner argues that even if the records are available
through other sources, he has nonetheless demonstrated good
cause for the requested discovery because "State records carry
greater evidentiary value than Sergeant Pugh's memory given
that State records do not have the credibility issues that go
along with one individual's memory from more than ten years
ago." Petition at 24. We rejected a similar argument in Ex
parte Perkins, in which the petitioner argued that trial
counsel had rendered ineffective assistance by relying on
recollections
of
Perkins's family members rather than
presenting evidence of his dysfunctional upbringing through
documents and records. We noted that the cases cited by
Perkins in support of his position "did not draw a distinction
between expert mitigating testimony based on interviews with
the defendant and his family members, on the one hand, and
1061477
29
objective documentary evidence, on the other." 941 So. 2d at
249. We "decline[d] to extend [those] cases ... to hold that
Perkins's trial counsel were ineffective for failing to
present the documentary evidence in question" and held,
instead, that "Perkins ha[d] failed to show good cause for the
discovery he [sought], and he ha[d] not met his burden for the
issuance of a writ of mandamus." 941 So. 2d at 251.
Because Turner failed to demonstrate that the information
that could be revealed by the discovery of the Limestone
County jail records cannot be obtained from another less
intrusive source, we conclude that he has not demonstrated
good cause for that discovery and, thus, has failed to
demonstrate a clear legal right to the writ of mandamus. We,
therefore, deny his petition as to those records.
C. Records of the Alabama Department of Human Resources
Finally, Turner argues that he is entitled to the writ of
mandamus because, he says, he has demonstrated good cause for
discovery of the records kept by the Alabama Department of
Human Resources related to several of his family members.
Turner argues that this information was related to his claim
that trial counsel were ineffective because they failed to
1061477
30
investigate and present mitigating evidence, in general, and
mitigating evidence related to his background, in particular.
See petition at 27. As discussed in the previous section,
Turner has presented a facially meritorious claim as to trial
counsel's failure to present mitigating evidence. See Ex parte
Land, supra. We therefore look to whether he has demonstrated
good cause for the requested discovery of the Alabama
Department of Human Resources.
Turner argued that trial counsel were ineffective for
failing to investigate and present mitigating evidence
concerning his background, including his family's poverty.
Turner moved the trial court for discovery of the records of
the Alabama Department of Human Resources because "[a]t times
during his childhood, Mr. Turner's family depended upon food
stamps or subsidies provided to them by the government.
Evidence of the family's reliance on government assistance is
likely contained in the records maintained by the Alabama
Department of Human Resources. This type of evidence is
undoubtedly mitigating." Petition at Exhibit C, pp. 7-8.
The State argued, and the Court of Criminal Appeals
agreed, that Turner does not need the records of the
1061477
31
Department of Human Resources to prove this claim because the
information is available through myriad other sources without
a court order, including the testimony of family members, tax
returns, subsidy applications, or documents presented to the
family upon receipt of food stamps or other subsidies. State's
brief at 29; Turner, 976 So. 2d at 517-18. We agree, and, for
the same reasons set forth in our discussion of Turner's
request for the Limestone County jail records, we conclude
that Turner has not demonstrated good cause for the requested
discovery. See Jackson, supra. We further conclude that
Turner has failed to demonstrate a clear legal right to the
relief sought; therefore, we deny Turner's petition on this
ground.
Conclusion
Because Turner has not demonstrated a clear legal right
to the issuance of the writ of mandamus directing the Court of
Criminal Appeals to vacate its order directing the trial court
to set aside its discovery orders, we deny his petition.
PETITION DENIED.
Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur.
Cobb, C.J., recuses herself. | June 27, 2008 |
c80db88d-e584-4799-9604-5b4574009bf3 | Dr. Therese Weber and The Radiology Group, P.A. v. Carolyn ( 329 ) Freeman, as mother of Samuel Freeman, a minor, deceased | N/A | 1060001 | Alabama | Alabama Supreme Court | REL:06/26/2008
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, 2007-2008
_________________________
1060001
_________________________
Dr. Therese Weber and The Radiology Group, P.A.
v.
Carolyn Freeman, as mother of Samuel Freeman,
a minor, deceased
_________________________
1060854
_________________________
Jackson Hospital & Clinic, Inc.
v.
Carolyn Freeman, as mother of Samuel Freeman,
a minor, deceased
Appeals from Montgomery Circuit Court
(CV-04-3324)
1060001; 1060854
2
BOLIN, Justice.
Pursuant to Rule 5, Ala. R. App. P., this Court, on
December 6, 2006, granted Dr. Therese Weber and The Radiology
Group, P.A., permission to file an interlocutory appeal from
an order of the trial court denying their motion to dismiss a
wrongful-death action alleging medical malpractice. On April
24, 2007, this Court granted Jackson Hospital & Clinic, Inc.
("Jackson"), permission to appeal from the denial of its
motion to dismiss in the same wrongful-death action. We
consolidated the appeals for the purpose of writing one
opinion.
Facts and Procedural History
On December 20, 2002, three-month-old Samuel Freeman was
treated at the emergency room at Jackson Hospital, a hospital
owned and operated by Jackson, and released. On December 22,
2002, Samuel died from a bowel obstruction. On December 20,
2004, Samuel's mother, Carolyn Freeman, sued Jackson, Dr.
Bryan P. Sweet, Dr. Richard Doyan, and certain fictitiously
named parties pursuant to Rule 9(h), Ala. R. Civ. P. Carolyn
alleged that the defendants failed to diagnose Samuel's bowel
obstruction. Specifically, Carolyn's complaint provided, in
pertinent part:
1060001; 1060854
3
"4. The Plaintiff's Decedent, infant Samuel
Freeman, was born prematurely at 31 weeks gestation.
Following his premature birth, Samuel Freeman was
hospitalized for approximately a ten-week period at
Baptist Medical Center South in Montgomery. During
this prolonged admission, Samuel Freeman suffered
several bouts of abdominal distention and on
November 19, 2002, the baby was transferred to
Children's Hospital so that the disorder known as
Hirshsprung's Syndrome could be ruled out. Based on
lab studies conducted at Children's Hospital by the
infant's physicians, the physicians were able to
rule out the possibility of Hirshsprung's Syndrome.
Thereafter, Samuel Freeman was transferred back to
Baptist Medical Center South on November 24, 2002,
and was discharged on December 4, 200[2].
"5. On December 20, 2002, CAROLYN FREEMAN,
presented to Jackson Hospital emergency room with
her infant son and told DR. SWEET, the doctor on
duty in the Jackson Hospital emergency room, that
she
believed
that
the
infant's
abdomen
was
distended. Mrs. Freeman also told DR. SWEET that her
son had not slept the night before, and had cried
continuously. Despite the fact that Carolyn Freeman
told DR. SWEET that her infant had been hospitalized
just a few weeks earlier, Dr. Sweet neither obtained
the infant's previous medical records nor did he
call the Baptist Medical Center South physicians who
had treated the infant during that recent admission.
Significantly, DR. SWEET did not perform an
abdominal examination of the infant. Moreover, DR.
SWEET did not order any blood tests, even though the
infant was breathing significantly higher than the
normal rate. DR. SWEET did order abdominal x-rays;
a flat and an upright x-ray of the infant's abdomen.
The
x-ray
films
revealed
a
'marked
gaseous
distention
of
the
colon
suggesting
bowel
obstruction,' a condition which DR. SWEET affirmed
by his handwritten notation on the infant's
emergency room medical record on December 20,
200[2]. With those radiographic findings, DR. SWEET
1060001; 1060854
4
knew or should have known of the probability that
the infant was experiencing a potentially fatal
bowel obstruction. However, DR. SWEET ignored the
obvious signs and symptoms of a bowel obstruction
and failed to reach a tentative or working diagnosis
of Samuel Freeman's medical problem. Instead, DR.
SWEET merely recorded in the chart a symptom,
'abdominal distention' and discharged the infant
with no diagnostic work up or treatment.
"6. On the morning of December 22, 2002, CAROLYN
FREEMAN brought Samuel back to the Jackson Hospital
Emergency Room. Samuel Freeman had been continually
crying and eating poorly, and his abdomen remained
distended since his discharge two days earlier.
Samuel Freeman was examined by Dr. Richard Doyan who
performed a physical examination and found the
infant's severely distended abdomen and a left-sided
inguinal hernia. Dr. Doyan noted that the infant
appeared ill and dehydrated with a sunken anterior
fontanel. Dr. Doyan ordered a complete blood count
('CBC'), and blood chemistry profile and additional
abdominal x-rays. The x-rays were interpreted as
follows:
'Films
are
consistent
with
bowel
obstruction as described on December 20, 2002, with
further increase in abdominal distention from the
comparison study.' Dr. Doyan determined that Samuel
Freeman was suffering from 'acute severe small bowel
obstruction and left inguinal hernia' and ordered
the infant to be transferred to Children's Hospital
in
Birmingham,
Alabama ('Children's'),
for emergency
surgery to correct the small bowel obstruction.
"7.
Samuel
Freeman
was
transported
to
Children's
in Birmingham via Haynes Ambulance. Approximately
ten
minutes
before
reaching
the
Children's
Hospital's emergency room, the infant suffered from
cardiopulmonary arrest and died.
"8. An autopsy was performed at Children's
Hospital. The cause of death was listed as 'midgut
volvulus with strangulation obstruction, marked
1060001; 1060854
5
dilatation and hemorrhagic infarction of the jejunum
and ileum.'
"Count One
"9.
Plaintiff
re-alleges
paragraphs
1-8
above
as
if stated herein.
"10.
DR.
SWEET,
JACKSON,
AND
FICTITIOUS
DEFENDANTS
LISTED
HEREIN,
negligently
and/or
wantonly breached the acceptable standards of
practice in providing medical services to Samuel
Freeman by: (a) failing to perform a proper physical
examination on December 20, 2002; (b) failing to
obtain a proper history of the infant's medical
history; (c) failing to timely assess, diagnose and
treat Samuel's bowel obstruction and (d) failing to
call for an immediate consult with a surgeon or
other specialist.
"11. The Plaintiff alleges that the negligent
conduct of the defendants, including the fictitious
party
defendants,
combined
and
concurred
to
proximately cause Samuel's death.
"12. The Plaintiff requests that the jury
selected to hear this case render a verdict for the
Plaintiff and against the Defendants in accordance
with the gravity of the wrong committed by the
Defendants in this case, and that it award damages
to plaintiff in an amount which will adequately
reflect the enormity of the defendants' wrong in
causing the death of plaintiff's decedent and which
will effectively prevent other similarly caused
deaths. Further, plaintiff requests that the Court
enter judgment consistent with the verdict, and that
it also award plaintiff interest from the date of
judgment and the costs incurred by the Court in
managing this lawsuit.
"Count Two
1060001; 1060854
6
"13. Plaintiff re-alleges paragraphs 1-12 as if
fully set out herein.
"14. Jackson had a duty to insure that the
physicians treating patients in its emergency room
were properly trained, monitored, supervised and
credentialed. Jackson failed to properly train,
monitor, and supervise Dr. Sweet and allowed him to
practice emergency medicine when he was not fit for
such activities.
"15. Jackson had a duty to insure that it
scheduled and provided a sufficient number of
physicians and nurses to work in its emergency
department so that the health care providers working
at Jackson Hospital had time to take a careful
history, perform a thorough physical examination,
and adequately diagnose and treat the patients
admitted to the emergency department.
"16. At the time Samuel Freeman was seen in the
Jackson Emergency Department on December 20, 2002
Jackson breached the above described duties and
violated the applicable standard of care by failing
to insure that Dr. Sweet was properly trained,
monitored, supervised and credentialed to provide
emergency room care to its patients and by failing
to provide sufficient staff in its emergency
department to properly treat the number of patients
it admitted to its emergency department.
"17. In addition to [Jackson's] independent
negligence, Jackson is liable for the conduct of DR.
SWEET under the doctrine of respondeat superior.
"18.
The
Plaintiff
alleges
that
the
aforementioned negligent conduct of the defendants,
including the fictitious part defendants, combined
and concurred to proximately cause Samuel's death.
"19. The Plaintiff requests that the jury
selected to hear this case render a verdict for the
1060001; 1060854
7
Plaintiff and against the Defendants in accordance
with the gravity of the wrong committed by the
Defendants in this case, and that it award damages
to plaintiff in an amount which will adequately
reflect the enormity of the defendants' wrong in
causing the death of plaintiff's decedent and which
will effectively prevent other similarly caused
deaths. Further, plaintiff requests that the Court
enter judgment consistent with the verdict, and that
it also award plaintiff interest from the date of
judgment and the costs incurred by the Court in
managing this lawsuit.
"Count Three
"20. Plaintiff re-alleges paragraphs 1-19 above
as if stated herein.
"21.
Jackson,
Dr.
Doyan
and
fictitious
defendants negligently breached the acceptable
standards of practice in providing medical services
to Samuel Freeman by: (a) failing to consult with
appropriate specialists in a timely fashion on
December 22, 2002; (b) failing to obtain a surgery
consult to determine whether Samuel needed immediate
surgery in Montgomery, Alabama as opposed to sending
Samuel to Children's Hospital in Birmingham, and (c)
failing
to
properly
stabilize
Samuel
before
transferring his care to Children's Hospital.
"22. The Plaintiff alleges that the negligent
conduct of the defendants, including the fictitious
party
defendants,
combined
and
concurred
to
proximately cause Samuel's death.
"23. The Plaintiff requests that the jury
selected to hear this case render a verdict for the
Plaintiff and against the Defendants in accordance
with the gravity of the wrong committed by the
Defendants in this case, and that it award damages
to plaintiff in an amount which will adequately
reflect the enormity of the defendants' wrong in
1060001; 1060854
8
causing the death of plaintiff's decedent and which
will effectively prevent other similarly caused
deaths. Further, plaintiff requests that the Court
enter judgment consistent with the verdict, and that
it also award plaintiff interest from the date of
judgment and the costs incurred by the Court in
managing this lawsuit."
(Capitalization in original.)
On September 14, 2005, Carolyn moved to amend her
complaint, substituting NES Healthcare for a fictitiously
named party, which the trial court granted. On February 16,
2006, Carolyn amended her complaint a second time, asserting
additional claims against Jackson. The amended complaint
asserted a claim against Jackson for negligently or wantonly
breaching the standard of care by failing to have a policy and
procedure in place to ensure that patients who had left the
hospital were contacted and asked to return to the hospital
when radiographs were read by board-certified radiologists and
potentially life-threatening conditions were discovered.
Carolyn alleged that Jackson breached the standard of care by
failing to contact her after receiving information that Samuel
had a potentially life-threatening condition. On March 17,
2006, Jackson filed a motion, objecting to Carolyn's second
amended complaint on the grounds that the amendment alleges
totally separate and distinct acts or omissions than those
1060001; 1060854
9
alleged against Jackson in the original complaint. On May 25,
2006, Carolyn filed an amendment to clarify the second amended
complaint to state that Jackson, "by and through the acts of
its agent Dr. Therese Weber, while acting within the line and
scope of her agency with Jackson Hospital," breached the
standard of care by negligently or wantonly failing to contact
Carolyn after receiving information that Samuel had a
potentially life-threatening condition. On June 7, 2006, the
trial court entered an order allowing the clarified second
amendment to the complaint.
On June 15, 2006, Carolyn filed a third amended
complaint, naming Dr. Therese Weber and her employer, The
Radiology Group, P.A., in the place of fictitiously named
parties. Carolyn alleged that Dr. Weber, the radiologist who
interpreted Samuel's abdominal radiograph and correctly found
a bowel obstruction, failed to follow Jackson's protocol and
notify emergency-room personnel when she had discovered a
life-threatening condition. On July 7, 2006, the trial court
entered an order allowing the third amended complaint.
On July 19, 2006, Weber and The Radiology Group filed a
motion to dismiss or, in the alternative, a motion for a
summary judgment. In their motion, they argued that the
1060001; 1060854
10
claims against them should be dismissed on the ground that
Carolyn's amended complaint did not relate back to the
original complaint and, therefore, that the statute of
limitations on her claims against them had run. On September
1, 2006, the trial court, after a hearing, although
recognizing that Carolyn knew the identity of Dr. Weber and
her employer when the original complaint was filed, denied the
motion, stating:
"However, they had no information that either
one of these defendants had done anything wrong
regarding the standard of care revolving around the
medical treatment of Samuel Freeman. Both sides
admitted at oral arguments that depositions in this
case, on certain parties and/or witnesses, took
place after the two-year statute of limitations had
run
for
various
reasons,
such
as
scheduling
conflicts. ... Due to no fault on either side, the
deposition of the hospital representative, Denise
Sweeney Portera, was not taken until May 17, 2006.
During this deposition, plaintiff's counsel learned
for the first time that not only was there a policy
requiring a radiologist to contact the emergency
room physician under the circumstances of this case,
but that Jackson had determined from internal
records, that were not part of the regular medical
record and were not available to the plaintiff, that
Dr. Weber had breached hospital procedures by
failing to notify the emergency room department of
the life-threatening bowel obstruction. The motion
to file a third amendment to the complaint adding
Dr. Weber and [her employer] was filed within three
weeks of the deposition taken of Ms. Portera."
1060001; 1060854
11
The trial court noted that if Dr. Weber and The Radiology
Group had been named in the original complaint on the sole
basis that they were identified in the medical records,
Carolyn and her attorneys "would have opened themselves up to
Rule 11[, Ala. R. Civ. P.,] sanctions and certainly would not
have been complying with the ethical obligations owed by
attorneys to pursue only valid causes of action."
On September 29, 2006, at the request of Dr. Weber and
The Radiology Group, the trial court entered a certification
pursuant to Rule 5, Ala. R. App. P., allowing Dr. Weber and
The Radiology Group to pursue an interlocutory appeal of its
order denying their motion to dismiss Carolyn's third amended
complaint. The trial court certified the following issues:
"Whether the plaintiff, after the applicable statute of
limitations had run, could properly substitute Dr. Weber and
her radiology group under [Rule] 9(h), [Ala. R. Civ. P.,] and
[Rule] 15, [Ala. R. Civ. P.,] when the plaintiff knew the
defendants' identities at the initiation of the lawsuit, but
did not name these parties as defendants until subsequent
discovery of a cause of action after the applicable statute
had run." Dr. Weber and The Radiology Group then petitioned
this Court for permission to appeal, which this Court granted.
1060001; 1060854
12
On February 12, 2007, Jackson filed a "renewed" motion to
dismiss the clarified second amended complaint. Jackson
argued that the allegations in the clarified second amended
complaint were based on wrongful conduct on a different day by
a different doctor from the allegations in the original
complaint. Jackson relied on this Court's decision in Prior
v. Cancer Surgery of Mobile, P.C., 959 So. 2d 1092 (Ala.
2006), in arguing that the clarified second amended complaint
did not relate back to the original complaint. At Jackson's
request, the trial court entered a certification order
pursuant to Rule 5(a), allowing Jackson to pursue an
interlocutory appeal. The trial court certified the following
issue: Whether the amendments in the clarified second amended
complaint were properly allowed, after the applicable statute
of limitations had run. Jackson then petitioned this Court
for permission to appeal, which this Court granted.
Analysis
Dr. Therese Weber and The Radiology Group (case no. 1060001)
Carolyn argues that Dr. Weber and The Radiology Group
were fictitious parties within the meaning of Rule 9(h), Ala.
R. Civ. P., and that the third amended complaint therefore
1060001; 1060854
13
related back to the filing of the original complaint. We
disagree.
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."
As this Court stated in Ex parte Atkinson, 976 So. 2d
1001, 1003 (Ala. 2007):
"This Court has stated on numerous occasions
that in order to invoke the relation-back principles
of Rule 9(h), that is, in order for the amended
complaint with the defendant's true name to relate
back to the original complaint with the fictitious
name, the plaintiff must establish (1) that the
plaintiff was ignorant of the identity of the
fictitiously named party, in the sense of having no
knowledge at the time the complaint was filed that
the party subsequently named was in fact the party
intended
to
be
sued,
Columbia
Engineering
International, Ltd. v. Espey, 429 So. 2d 955 (Ala.
1983); and (2) that the plaintiff used due diligence
to discover the defendant's true identity before
filing the original complaint, Fulmer v. Clark
Equipment Co., 654 So. 2d 45 (Ala. 1995)."
The purpose of Rule 9(h) is to toll the applicable
statute of limitations when the plaintiff has diligently
pursued the identity of, but has been unable to identify,
certain defendants. The fictitious name serves as a
1060001; 1060854
14
placeholder for the defendant, and Rule 15(c) allows the claim
against the substituted defendant to relate back to the date
of the original complaint. Toomey v. Foxboro Co., 528 So. 2d
302 (Ala. 1988).
"Rule 9(h)[, Ala. R. Civ. P.,] is not intended to
give
plaintiffs
additional
time
beyond
the
statutorily
prescribed period within which to
formulate causes of action. Instead, the principal
reason for the rule is to toll the statute of
limitations in emergency cases where [the] plaintiff
knows he has been injured and has a cause of action
against some person or entity, but has been unable
to ascertain through due diligence the name of that
responsible person or entity."
Columbia Eng'g Int'l, Ltd. v. Espey, 429 So. 2d 955, 959 (Ala.
1983)(citing Browning v. City of Gadsden, 359 So. 2d 361 (Ala.
1978)).
The dispositive question here is whether Carolyn was
"ignorant" of the identity Dr. Weber and The Radiology Group
within the meaning of Rule 9(h) when she filed her original
complaint.
In Marsh v. Wenzel, 732 So. 2d 985 (Ala. 1998), a patient
brought a medical-malpractice action against a surgeon who had
removed tissue from her breast but had failed to diagnose it
as cancerous. She also sued several fictitiously named
parties under Rule 9(h), Ala. R. Civ. P. After she deposed
1060001; 1060854
15
the pathologist who had also examined the tissue and failed to
diagnose the cancer, the patient substituted the pathologist
for one of the fictitiously named defendants. In Marsh, the
patient argued, pursuant to Rule 9(h), Ala. R. Civ. P., that
she was ignorant of the identity of the pathologist when she
filed her action. "However, ... one could not reasonably
conclude that she was ignorant of matters -- such as the name
of the pathologist who examined the tissue samples -- that
clearly were set forth in her medical records." 732 So. 2d at
990. We concluded that the patient had not been ignorant of
the identity of the pathologist but of her cause of action
against him and that Rule 9(h) excused only ignorance of the
identity of the party against whom a cause of action had been
stated in the original complaint. Therefore, this Court held
that the patient's claims were time-barred because she could
not have reasonably been ignorant of the pathologist's
identity, and her claims against the pathologist, therefore,
did not relate back to her original complaint.
In Ex parte Snow, 764 So. 2d 531 (Ala. 1999), the issue
was whether a plaintiff's ignorance of a cause of action
against a particular defendant is treated the same as the
plaintiff's ignorance of the identity of that defendant. In
1060001; 1060854
16
Snow, the patient and her husband brought a medical-
malpractice action against the surgeons who performed an
operation to alleviate her pain caused by gallstones. They
also listed other fictitiously named defendants. After the
statute of limitations had run, they sought to substitute the
names of two other surgeons who had performed a different
operation to remove the patient's gallbladder. The plaintiffs
argued that the substitution of the fictitiously named
defendants related back to the date of the filing of the
original complaint because, they said, it was not until a
deposition was taken that they learned that the two other
surgeons had acted negligently. The plaintiffs admitted that
they knew the names of the two surgeons and the procedure they
had performed when they filed their original complaint. This
Court held although the plaintiffs may not have known the
significance of the information they had regarding the two
surgeons and the operation performed, "it was incumbent upon
them to learn of that significance" before the running of the
statutory period. 764 So. 2d at 537.
In Harwood v. Blackwood, 623 So. 2d 726 (Ala. 1993), the
personal representative of his son's estate knew the identity
of a treating physician when the original complaint was filed.
1060001; 1060854
17
However, he sought to substitute the treating physician for a
fictitiously named defendant. This Court stated:
"When the plaintiff
filed
the
original
complaint
against
the
two
named
defendants
and
the
fictitiously named defendants number 3 and number 4,
he was apparently relying on a discussion with Dr.
Edward Conner, a neonatologist, concerning the
involvement in the child's death of the nurses in
the nursery at the hospital and of the obstetrician
who had delivered the child. Nonetheless, when a
plaintiff knows the name of a physician and the
involvement of that physician in the treatment of
the patient, it is incumbent upon the plaintiff,
before the running of the statutory period, to
investigate and to evaluate his claim to determine
who is responsible for the injury and to ascertain
whether there is evidence of malpractice. In this
case, the plaintiff did not do that."
623 So. 2d at 727 (emphasis added).
In the present case, Carolyn argues that her substitution
of Dr. Weber and The Radiology Group for fictitiously named
parties should be allowed because, she says, when she filed
her original complaint she was unaware of Jackson's protocol
requiring radiologists to notify emergency-room personnel if
they discovered a life-threatening condition in a patient who
had left the emergency room. However, Carolyn was not
"ignorant" of a relationship that gave rise to a duty. Carolyn
knew of the identity of Dr. Weber and The Radiology Group and
knew that Dr. Weber had interpreted Samuel's abdominal
1060001; 1060854
18
radiographs (the only diagnostic test performed on Samuel
during his visit to the emergency room) before she filed her
action. Because she knew of Dr. Weber's involvement in
Samuel's treatment, it was incumbent upon her, before the
statute of limitations on her claim expired, to investigate
and evaluate the claim to determine who was responsible for
Samuel's death. Carolyn attempts to raise an argument that,
under Rule 11, Ala. R. Civ. P., she could not, in good faith,
have named Dr. Weber and The Radiology Group as defendants,
because she was unaware of Dr. Weber's negligence. However,
given the facts of this case, there was a reasonable, good-
faith basis for counsel to have named Dr. Weber in the
original complaint.
This Court recently applied Rule 9(h), Ala. R. Civ. P.,
to allow a plaintiff to substitute a real party for a
fictitiously named defendant where the plaintiff knew of the
identity of the defendant before filing the action. See Ex
parte Bowman, [Ms. 1061079, December 7, 2007] So. 2d
(Ala. 2007). However, we find Ex parte Bowman to be
distinguishable. In Bowman, the plaintiff was injured on a
fermenter tank located at his place of employment. The
plaintiff and his wife sued the manufacturer of the tank and
1060001; 1060854
19
several fictitiously named defendants, alleging that they had
been negligent in designing, manufacturing, and installing the
fermenter tank. After the statute of limitations had run, the
plaintiffs filed a motion to amend their complaint to
substitute the employer's quality-assurance manager. The
quality-assurance manager filed a motion to dismiss 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 plaintiffs knew the identity of the quality-
assurance manager at the time the original complaint was
filed, they were unaware that he had also been responsible for
acquiring, installing, and modifying the tank. The fact that
the plaintiffs knew that the manager was in charge of quality
control of the product ultimately produced by the employer was
not related to the plaintiffs' claim. "There is no logical
and necessary linkage between knowledge that such an
individual was a participant in acquiring, installing, and
modifying the machine that makes the product." So. 2d at
. This Court denied the manager's petition.
1060001; 1060854
20
In the present case, the medical records obtained by
Carolyn before she filed her action showed that Dr. Weber and
The Radiology Group read the radiographs of Samuel's abdomen
and discovered an obstruction. Carolyn's complaint did not
allege that a fictitiously named party failed to contact
Carolyn after determining that Samuel had a life-threatening
condition, nor did the original complaint allege that a
fictitiously named party failed to comply with hospital
protocol (or common sense for that matter) by not contacting
the emergency-room physician to notify him of the life-
threatening condition discovered in the radiograph. In
contrast, the plaintiffs in Bowman alleged that a fictitiously
named party was negligent in designing, manufacturing, and
installing the tank, and they later substituted the manager as
one of those fictitiously named parties involved in installing
the tank.
Jackson (case no. 1060854)
Jackson argues, and we agree, that Prior v. Cancer
Surgery of Mobile, P.C., 959 So. 2d 1092 (Ala. 2006), is
dispositive of whether Carolyn's clarified second amended
complaint relates back to the original complaint.
1060001; 1060854
21
In Prior, the personal representative of a cancer
patient's estate filed a medical-malpractice action against
Dr. Bradley Scott Davidson and his employer, the surgery
center. She also asserted claims of vicarious liability. She
amended the complaint once to comply with the specificity
requirements of § 6-5-551, Ala. Code 1975. She filed a second
amended complaint, seeking to hold the surgery center
vicariously liable for the actions of another of its
employees, Dr. Gaylord T. Walker. Dr. Walker had cared for
the patient on a different day than did Dr. Davidson. Dr.
Davidson performed surgery on the patient that the personal
representative alleged was negligent, and Dr. Walker provided
care for the patient following the surgery.
The surgery center in Prior moved for a summary judgment
on the ground that the claims asserted in the second amended
complaint did not relate back to the date of the filing of the
original complaint and thus were time-barred. The trial court
granted
the
summary-judgment motion, and the personal
representative appealed. This Court affirmed the summary
judgment, concluding that the claim did not relate back to the
original complaint because the personal representative was
seeking to add new facts and a new claim that the surgery
1060001; 1060854
22
center was vicariously liable for a different doctor on a
different day from those actions that formed the basis of the
claims asserted in the original complaint and the first
amended complaint.
Carolyn's clarified second amended complaint was filed
after the statutory period had run; therefore, the claims
against Jackson set forth in the amended complaint are time-
barred unless Rule 15, Ala. R. Civ. P., applies. Under Rule
15(c)(2), an amendment relates back to the original complaint
when "the claim ... asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading ...."
Although Carolyn had timely made Jackson a party to her
medical-malpractice action, for the first time in her
clarified second amended complaint, she alleged that Jackson
was negligent in caring for Samuel by and through its
employee, Dr. Weber. The original complaint contained no
allegations regarding policies and procedures relating to
radiographs or any alleged breach of the standard of care. In
other words, the only allegations in the original complaint
were based on the actions of Dr. Sweet on December 20, 2002,
and Dr. Doyan on December 22, 2002. Carolyn's clarified
1060001; 1060854
23
second
amended
complaint
asserting
Jackson's
vicarious
liability for the medical services provided by Dr. Weber does
not relate back to the original complaint.
Conclusion
Dr. Weber and The Radiology Group were not proper
fictitious parties within the meaning of Rule 9(h), Ala. R.
Civ. P., and the statute of limitations now bars the action
against them. Therefore, we reverse the judgment of the
trial court denying Dr. Weber and The Radiology Group's motion
to dismiss, and we remand the cause for proceedings consistent
with this opinion. The claim against Jackson set out in
Carolyn's
clarified
second
amended
complaint
regarding
Jackson's vicarious liability based on its employee, Dr.
Weber, is time-barred because the original complaint did not
assert that Samuel's death was the result of any action by Dr.
Weber. Therefore, we reverse the judgment of the trial court
denying Jackson's motion to dismiss Carolyn's clarified second
amended complaint, and we remand the cause for proceedings
consistent with this opinion.
1060001 -- REVERSED AND REMANDED.
1060854 -- REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,
Parker, and Murdock, JJ., concur. | June 27, 2008 |
9f8ce96b-5656-48aa-859f-8837fe408db2 | Ex parte David Morris. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Robert Burton & Associates, LTD v. David Morris) | N/A | 1070384 | Alabama | Alabama Supreme Court | REL: 06/20/2008
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, 2007-2008
_________________________
1070384
_________________________
Ex parte David Morris
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Robert Burton & Associates, LTD
v.
David Morris)
(Calhoun Circuit Court, CV-06-852;
Court of Civil Appeals, 2060802)
LYONS, Justice.
1070384
2
David Morris ("the employee") petitioned this Court for
a writ of certiorari seeking review of the Court of Civil
Appeals' decision reversing the judgment of the Calhoun
Circuit Court awarding the employee worker's compensation
benefits for an injury he sustained while working for Robert
Burton & Associates, LTD ("the employer"). See Robert Burton
& Assocs., LTD v. Morris, [Ms. 2060802, Nov. 30, 2007] __ So.
2d __, __ (Ala. Civ. App. 2007). We granted the employee's
petition to determine, as a question of first impression,
whether payment of workers' compensation benefits under the
Georgia Workers' Compensation Act, Ga. Code Ann. § 34-9-1 et
seq. (2000) ("the Georgia Act"), tolls the statute of
limitations for filing a claim under the Alabama Workers'
Compensation Act, Ala. Code 1975, § 25-5-1 et seq. ("the
Alabama Act"). For the reasons discussed below, we affirm the
judgment of the Court of Civil Appeals.
I. Facts and Procedural History
The opinion of the Court of Civil Appeals outlines the
material facts as follows:
"The employee worked for the employer as a
regional sales manager; the employee resided in
Georgia and worked out of his home. As part of his
job
duties,
the
employee
routinely
traveled
1070384
3
throughout Georgia, Alabama, and parts of Tennessee.
On June 13, 2003, while in Alabama, the employee
injured his back changing a flat tire on the company
van he was driving to deliver the employer's
products. Two weeks later, the employee filed a
claim for workers' compensation benefits. The
employer acknowledged that the employee's back
injury arose out of and in the course of his
employment, and it commenced making payments of
benefits to the employee under the Georgia Workers'
Compensation Act, § 34-9-1 et seq., Ga. Code Ann.
(2000) ('the Georgia Act'). The employer has been
paying the employee Georgia workers' compensation
and medical benefits since 2003.
"The employee testified in his deposition that
he understood that he had been receiving workers'
compensation benefits under the Georgia Act since
2003. The employee further testified that he had
retained an attorney in Georgia to assist him in
expediting his claim for those benefits.
"On November 17, 2006, the employee filed an
action in the Calhoun Circuit Court ('the trial
court') seeking workers' compensation benefits under
the Alabama Act. The employee testified that the
primary reason he had filed a claim for Alabama
workers' compensation benefits was because of the
delays he had experienced in obtaining medical
benefits under the Georgia Act. The employer denied
the claim, asserting that the employee had failed to
timely
file
his
claim
for
Alabama
workers'
compensation benefits. The employee claimed that
the
employer's
payment
of
Georgia
workers'
compensation benefits to the employee had tolled the
applicable statute of limitations in the Alabama
Act. See § 25-5-80, Ala. Code 1975. The parties
submitted the controversy to the trial court based
on joint stipulations and the deposition of the
employee.
1070384
4
"On May 14, 2007, the trial court entered a
judgment in favor of the employee, concluding, as a
matter of law, that the payment of Georgia workers'
compensation benefits had tolled the Alabama statute
of limitations. The trial court awarded the
employee
temporary-total-disability
benefits
relating back to the date of the original injury and
ordered the employer to continue those payments
until
the
employee
reaches
maximum
medical
improvement. The trial court also ordered the
employer to pay all other workers' compensation
benefits owed to the employee under the Alabama Act.
The trial court certified its judgment as final,
pursuant to Rule 54(b), Ala. R. Civ. P."
Morris, __ So. 2d at __.
The employer appealed the judgment to the Court of Civil
Appeals, arguing that only payments of compensation made under
the Alabama Act toll the statute of limitations for filing a
claim for workers' compensation benefits in Alabama. The
employer argued that although § 25-5-80, Ala. Code 1975,
provides that "payments of compensation" toll the statute of
limitations, "compensation" is unambiguously defined within
the Alabama Act as payments made under Articles 3 and 4 of the
Alabama Act. See § 25-5-1(1), Ala. Code 1975. Thus, the
employer
contended,
payments
made
under
the
workers'
compensation act of a state other than Alabama do not toll the
statute of limitations for filing a claim under the Alabama
Act.
1070384
5
Section 25-5-35(e), Ala. Code 1975, in pertinent part,
provides:
"The payment or award of benefits under the workers'
compensation
law of another state, territory,
province or foreign nation to an employee or his
dependents otherwise entitled on account of such
injury or death to the benefits of this article and
Article 3 of this chapter shall not be a bar to a
claim for benefits under this article and Article 3
of this chapter; provided that claim under this
article is filed within the time limits set forth in
Section 25-5-80."
Section 25-5-80 provides a two-year statute of limitations for
claims for compensation arising from work-related personal
injuries. See Sagley v. ABC Rail Prods. Corp., 775 So. 2d 230,
234 (Ala. Civ. App. 2000). However, § 25-5-80 also includes
a tolling provision that states: "Where, however, payments of
compensation, as distinguished from medical or vocational
payments, have been made in any case, the period of limitation
shall not begin to run until the time of making the last
payment." (Emphasis added.) Section 25-5-1(1) provides that
within the Alabama Act "compensation" shall be considered to
mean "[t]he money benefits to be paid on account of injury or
death, as provided in Articles 3 and 4."
The Court of Civil Appeals found that when more than one
state has jurisdiction over a claim for workers' compensation
1070384
6
benefits, the issue whether "'payments of compensation made to
the injured worker under the laws of one of the states toll
the statute of limitations as to a claim later filed in the
other state'" presents a question of first impression in this
state. Morris, __ So. 2d at __ (quoting Houston Contracting
Co. v. Young, 267 Ark. 322, 322, 590 S.W.2d 653, 653 (1979)).
The Court of Civil Appeals first considered the definition of
"compensation" found in § 25-5-1(1) and concluded that "the
language employed by the legislature is not totally free from
ambiguity." Morris, __ So. 2d at __. "Compensation" is
defined at § 25-5-1(1) as follows:
"(1) Compensation. The money benefits to be paid
on account of injury or death, as provided in
Articles 3 and 4. The recovery which an employee
may receive by action at law under Article 2 of this
chapter is termed 'recovery of civil damages,' as
provided for in Sections 25-5-31 and 25-5-34.
'Compensation' does not include medical and surgical
treatment and attention, medicine, medical and
surgical
supplies, and crutches and apparatus
furnished an employee on account of an injury."
(Emphasis added.) The Court of Civil Appeals concluded that
the phrase "as provided in Articles 3 and 4" in § 25-5-1(1)
could be read as providing either (1) that only benefits paid
under the schedules in Articles 3 and 4 of the Alabama Act
constitute "compensation" for purposes of the Alabama Act or
1070384
7
(2) that benefits paid under the schedules in Articles 3 and
4 are merely examples of "compensation." See Morris, __ So.
2d at __.
The Court of Civil Appeals then noted that this Court has
consistently held that when a workers' compensation statute is
ambiguous it must be "liberally construed to effect [its]
beneficent purposes." Ex parte Beaver Valley Corp., 477 So.
2d 408, 411 (Ala. 1985). The court then discussed the law of
other jurisdictions and ultimately adopted the reasoning of
Auslander v. Textile Workers Union of America, 59 A.D.2d 90,
397 N.Y.S. 2d 232 (1977):
"[W]e reject the employer's contention that the
language of § 25-5-80 absolutely precludes the
receipt of out-of-state benefits from ever tolling
the Alabama statute of limitations. We hold that in
cases in which the employer improperly or in bad
faith channels the claim into one state without the
knowledge of the employee, or in cases in which the
employee is otherwise unaware of and has no reason
to know the source of his or her payments of
compensation, thereby lulling the employee into
forgoing the filing of a timely Alabama claim, the
payment of compensation under the foreign statute
will toll the Alabama statute of limitations.
"Once an employer sustains its burden of proving
that the claim was filed more than two years after
the date of the accident, the employee has the
burden of proving that the employer made payments of
compensation that toll the statute of limitations."
1070384
8
Morris, __ So. 2d at __.
Finding no such circumstances in this case, the Court of
Civil Appeals declined to hold that the out-of-state payments
tolled the statute of limitations for the employee's claim,
and it reversed the trial court's award of compensation
benefits under the Alabama Act. The court affirmed the
judgment of the trial court as to its award of medical
benefits under the Alabama Act, citing Ex parte Tuscaloosa
County, 522 So. 2d 782, 784 (Ala. 1988), which held that "a
claim [for medical benefits under the Alabama Act] is not
time-barred merely because the injured employee has not
complied with the statutorily prescribed period of limitations
for a compensation claim."
II. Standard of Review
The issue before us is entirely a question of law. The
legal
conclusions
of
the
trial
court
in
a
workers'
compensation case are reviewed de novo on appeal. Ex parte
Cash, 624 So. 2d 576, 577 (Ala. 1993); see also Mid-South
Elec. Co. v. Jones, 848 So. 2d 998, 999 (Ala. Civ. App. 2002).
"On certiorari review, this Court accords no presumption of
correctness to the legal conclusions of the intermediate
1070384
9
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).
III. Analysis
The employee contends that the fact that his payments of
compensation have been paid under the Georgia Act should not
matter as to whether those payments toll the statute of
limitations for filing a claim for compensation under the
Alabama Act. The employee asserts that the benefits paid
under the Georgia Act and the Alabama Act are substantially
the same and that the employer would not be prejudiced by
allowing the payments under the Georgia Act to toll the
statute of limitations for filing a claim under the Alabama
Act. The employee also stresses that the tolling provision in
§ 25-5-80 expressly applies where "payments of compensation
... have been made in any case." (Emphasis added.)
In order to determine whether the employer's payments of
compensation under the Georgia Act toll the statute of
limitations for filing a claim for workers' compensation under
the Alabama Act, we must first consider the plain meaning of
1070384
10
the words in § 25-5-1(1), which define "compensation" within
the Alabama Act. We have often stated:
"'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))."
Trott v. Brinks, Inc., 972 So. 2d 81, 85 (Ala. 2007).
"[I]t is our job to say what the law is, not to say
what it should be. Therefore, only if there is no
rational way to interpret the words as stated will
we look beyond those words to determine legislative
intent. To apply a different policy would turn this
Court into a legislative body, and doing that, of
course, would be utterly inconsistent with the
doctrine of separation of powers."
Ex parte National Western Life Ins. Co., 899 So. 2d 218, 223
(Ala. 2004) (quoting DeKalb County LP Gas Co. v. Suburban Gas,
Inc., 729 So. 2d 270, 275-76 (Ala. 1998)).
The employee and the employer both contend that the Court
of Civil Appeals erroneously concluded that the definition of
"compensation" in § 25-5-1(1) is ambiguous. Both argue that
the definition is unambiguous: The employee contends that §
1070384
Chief Justice Cobb's dissenting opinion relies on "the
1
Court's settled precedent that the workers' compensation laws
are to be 'liberally construed to effect their beneficent
purposes,'" citing Ex parte Beaver Valley Corp., 477 So. 2d
408, 411 (Ala. 1985); Ex parte City of Birmingham, [Ms.
1061225, Feb. 1, 2008] __ So. 2d __ (Ala. 2008); Ex parte
Mitchell, [Ms. 1060356, Jan. 25, 2008] __ So. 2d __ (Ala.
2008); and Trott v. Brinks, Inc., 972 So. 2d 81 (Ala. 2007).
11
25-5-1(1)
unambiguously
defines
"compensation"
as
any
benefits
paid on account of injury or death, while the employer
contends
that
§
25-5-1(1)
unambiguously
defines
"compensation"
as solely those benefits paid pursuant to Articles 3 or 4 of
the Alabama Act, on account of a worker's injury or death.
We agree with the employer that the plain meaning of §
25-5-1(1) unambiguously defines "compensation" as payments
made pursuant to Articles 3 or 4 of the Alabama Act. The
phrase "as provided in Articles 3 or 4" expressly limits the
scope of the definition to only benefits paid pursuant to
Article 3 and 4 of the Alabama Act. The conclusion of the
Court of Civil Appeals that the phrase "as provided in
Articles 3 and 4" could be read as providing that the benefits
paid under the schedules in Articles 3 and 4 are merely
examples of "compensation" requires us to read the phrase with
the word "such" inserted so that it reads "such as provided in
Articles 3 and 4." This we cannot do. Because the tolling
1
1070384
__ So. 2d at __. Each of the foregoing cases contains the
limitation on the rule of liberal construction that such
construction must be one that the language of the statute
fairly and reasonably supports. A construction cannot be said
to be fairly and reasonably supported when it is necessary to
resort to judicial interlineation of a term that alters the
plain meaning of the statute.
The dissenting opinion, invoking the rule requiring that
2
related provisions of an act be read in pari materia, relies
on § 25-5-35(e), which juxtaposes the laws of another state
against "benefits [under] this article and Article 3 of this
chapter," thereby recognizing the existence of the dichotomy--
benefits under laws of another state and benefits under the
Alabama Act, which serves as the foundation for this opinion.
Moreover, elevating § 25-5-35(e) to the point that this Court
can somehow ignore § 25-5-1(1) with its definition of
compensation as "[t]he money benefits to be paid on account of
injury or death, as provided in Articles 3 and 4" would stand
the rule of in pari materia on its head because § 25-5-35(e)
expressly refers to filing "within the time limits set forth
in Section 25-5-80." Of course, § 25-5-80 uses the term
"compensation," which must be read in pari materia with § 25-
5-1(1).
12
provision of § 25-5-80 provides that only payments of
"compensation," a defined term in § 25-1-1, toll the statute
2
of limitations, benefits paid pursuant to the workers'
compensation laws of another state do not toll the statute of
limitations for filing a claim for workers' compensation under
the Alabama Act because such benefits are not payments as
provided in Articles 3 and 4 and thus are not "compensation."
Because § 25-5-1(1) unambiguously limits compensation to
benefits awarded under Articles 3 and 4 of the Alabama Act,
1070384
13
the Court of Civil Appeals unnecessarily discussed the reasons
for the tolling provision in § 25-5-80 and caselaw from other
jurisdictions dealing with "the effect of out-of-state
compensation payments on in-state statutes of limitations."
Morris, __ So. 2d at __. "'If a statute is not ambiguous or
unclear, the courts are not authorized to indulge in
conjecture as to the intent of the Legislature or to look to
consequences of the interpretation of the law as written.'"
Gray v. Gray, 947 So. 2d 1045, 1050 (Ala. 2006) (quoting Ex
parte Presse, 554 So. 2d 406, 411 (Ala. 1989)). Therefore, we
reject the Court of Civil Appeals' holding that payments of
compensation made pursuant to the workers' compensation law of
a state other than Alabama will toll the statute of
limitations for filing a claim for workers' compensation under
the Alabama Act when the employer lulled the employee into
delaying the filing of the Alabama claim.
We recognize that, when § 25-5-1(1) is read in harmony
with § 25-5-80, the plain meaning of § 25-5-1(1) creates the
potential for a harsh result. However, we further note that
this Court has previously recognized the principle of
equitable tolling. See Ex parte Youngblood, 413 So. 2d 1146,
1070384
14
1149 (Ala. 1981) ("The representations of an employer or its
insurance carrier may be such as to estop them from asserting
the statute of limitations as a bar to a claim for workmen's
compensation, if the employer or the carrier, or their
representatives, in their dealings with the claimant, conduct
themselves
in
such
a
manner,
whether
innocently
or
fraudulently, as to mislead the claimant into believing that
he can postpone the filing of his claim until the period of
limitation has expired."). It is unnecessary to express an
opinion in favor of a rule of law grounded in equitable
tolling in a setting such as here, where, even if we were to
embrace the rule, there is no evidence indicating that the
employer
misled
the
employee,
either
innocently
or
fraudulently, into believing that the payment of compensation
under the Georgia Act tolled the statute of limitations for a
claim under the Alabama Act.
For the foregoing reasons, we affirm the judgment of the
Court of Civil Appeals insofar as it held that the employee's
claim was barred by the statute of limitations because his
claim under the Alabama Act was filed more than two years
after his injury. See § 25-5-80. However, we reject the
1070384
15
rationale of the Court of Civil Appeals in reaching that
holding, i.e., its conclusion that the language of § 25-5-1(1)
is ambiguous. We therefore do not consider the holdings the
Court of Civil Appeals reached unnecessarily after erroneously
concluding that § 25-5-1(1) is ambiguous.
IV. Conclusion
We affirm the judgment of the Court of Civil Appeals.
AFFIRMED.
See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock,
JJ., concur.
Cobb, C.J., dissents.
1070384
16
COBB, Chief Justice (dissenting).
I respectfully dissent. Given the Court's settled
precedent that workers' compensation laws are to be "liberally
construed to effect their beneficent purposes," Ex parte
Beaver Valley Corp., 477 So. 2d 408, 411 (Ala. 1985); see also
Ex parte City of Birmingham, [Ms. 1061225, Feb. 1, 2008] ___
So. 2d ___ (Ala. 2008); Ex parte Mitchell, [Ms. 1060356, Jan.
25, 2008] ___ So. 2d ___ (Ala. 2008); and Trott v. Brinks,
Inc., 972 So. 2d 81 (Ala. 2007), I am not persuaded that this
Court must conclude that the word "benefits" as used in the
definition of "compensation" in § 25-5-1(1), Ala. Code 1975,
is unambiguously restricted to those benefits provided in
Articles 3 and 4 of the Alabama Workers' Compensation Act, in
the sense that such benefits must be those paid only pursuant
to those articles. It would seem perfectly reasonable to me,
and more in accord with the beneficent purpose of the statute,
to construe the term "compensation," as defined in § 25-1-
1(1), to mean benefits received within the parameters of
Article 3 or 4, regardless of the source. Thus, workers'
compensation benefits from other states, when paid in the same
context as they would be paid in this state under Articles 3
1070384
17
and 4, would be recognized as compensation for purposes of the
tolling provision of § 25-5-80.
This interpretation is also supported by § 25-5-35(e),
Ala. Code 1975, which provides:
"(e) The payment or award of benefits under the
workers’
compensation
law
of
another
state,
territory, province, or foreign nation to an
employee or his dependents otherwise entitled on
account of such injury or death to the benefits of
this article [Article 2] and Article 3 of this
chapter shall not be a bar to a claim for benefits
under this article and Article 3 of this chapter;
provided that claim under this article is filed
within the time limits set forth in Section
25-5-80."
It follows that § 25-5-80 is appropriately read in para
materia with § 25-5-35 and that the term "benefits" includes
benefits paid in other states. | June 20, 2008 |
f3d63dd4-9405-46d4-b154-0292fb90840e | Bob Riley et al. v. Luther S. Pate, IV | N/A | 1071003 | Alabama | Alabama Supreme Court | Rel 07/03/08 Riley v. Pate
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
_________________________
1071003
_________________________
Bob Riley et al.
v.
Luther S. Pate IV
Appeal from Montgomery Circuit Court
(CV-08-477)
WOODALL, Justice.
Governor Bob Riley, State Treasurer Kay Ivey, Finance
Director James Allen Main, and Comptroller Robert L. Childree
(hereinafter referred to collectively as "the officials")
appeal from a preliminary injunction entered against them in
1071003
2
an action filed by Luther S. Pate IV. The officials argue, in
pertinent part, that Pate does not have standing to maintain
the action. We agree. Consequently, we vacate the
preliminary injunction, dismiss the action, and dismiss this
appeal.
I. Factual Background
This dispute arose following this Court's decision in
Exxon Mobil Corp. v. Alabama Department of Conservation &
Natural Resources, [Ms. 1031167, November 1, 2007] ___ So. 2d
___ (Ala. 2007). That decision affirmed a judgment entered
against Exxon Mobil ("the company") insofar as it awarded
certain compensatory damages for the underpayment of oil and
gas royalties owed to the State of Alabama by the company
under offshore leases. On remand, the Montgomery Circuit
Court entered a final judgment in the amount of $121,511,231.
Of that amount, $58,174,033 were compensatory damages for the
underpayment of oil and gas royalties. The remaining
$63,337,198 represented 12% interest due under § 9-17-33, Ala.
Code 1975, and § 8-8-10, Ala. Code 1975. The company paid the
judgment, and the officials were responsible for allocating
the proceeds to the appropriate State funds.
1071003
Although Amendment No. 450 has been incorporated into the
1
Alabama Constitution of 1901 as § 219.02, for ease of
reference, we will continue to refer to § 219.02 throughout
this opinion as Amendment No. 450.
3
At the center of this dispute is Amendment No. 450 to the
Alabama Constitution of 1901, which established the Alabama
Trust Fund ("the Trust Fund"). The Trust Fund receives and
1
manages 99% of the oil and gas capital payments derived from
the State's offshore leases for the production of oil, gas, or
other hydrocarbons. The remaining 1% is paid to the Lands
Division of the Department of Conservation. Once the oil and
gas capital payments are deposited into the Trust Fund, the
board of trustees of the Trust Fund is responsible for
investing the oil and gas capital payments for the purpose of
"produc[ing] the greatest trust income over the term of such
investments while preserving the trust capital." Amendment
No. 450, § 5(b). Ten percent of the trust income must be
reinvested in the Trust Fund. Amendment No. 450, § 4(c). The
remaining income, which includes all interest and dividends,
as well as up to 75% of capital gains, is paid directly into
the general fund and, subject to two conditions, is "subject
to
appropriation
and
withdrawal
by
the
legislature."
Amendment No. 450, § 5(a). In any year in which the income of
1071003
4
the Trust Fund exceeds $60 million, 10% of the income must be
distributed to the Municipal Government Capital Improvement
Fund and 10% must be distributed to the County Government
Capital Improvement Fund. See § 219.04, Ala. Const. 1901
(formerly Amend. No. 666, Ala. Const. 1901). Also, 10% of
each year's trust income, not to exceed $15 million, must be
distributed to the Alabama Forever Wild Land Trust. See §
219.07, Ala. Const. 1901 (formerly Amend. No. 543). The
current balance of the Trust Fund is approximately $3 billion.
Nine trustees serve on the board of trustees of the Trust
Fund. Those trustees include the governor, who serves as
chairman; the finance director, who serves as vice chairman;
and the state treasurer, who serves as secretary. Three other
trustees are appointed by the governor; two others by the
lieutenant governor; and another by the speaker of the house
of representatives. See Amendment No. 450, § 3(a)-(f).
After the company paid the amount of the judgment,
Finance Director Main requested an opinion from the attorney
general concerning the proper allocation of the proceeds
between the general fund and the Trust Fund. Consistent with
a written opinion of the attorney general, the officials
1071003
5
deposited the compensatory damages for the underpayment of oil
and gas royalties, less attorney fees and costs, into the
Trust Fund. Also consistent with that opinion, they deposited
the interest received into the general fund.
Pate, an Alabama citizen and taxpayer, filed a "Complaint
for Declaratory Judgment and Injunctive Relief and Petition
for Writ of Mandamus" in the Montgomery Circuit Court,
challenging the deposit of the interest into the general fund.
He
requested
declaratory relief, mandamus relief,
and
preliminary and permanent injunctive relief that would require
the officials to move the interest from the general fund to
the Trust Fund. Pate filed a motion for a preliminary
injunction, and the officials responded to the motion. Also,
the officials filed a motion to dismiss. In both their
response and their motion, the officials raised the issue of
Pate's standing to bring the action.
On April 10, 2008, the trial court held a hearing on
Pate's motion for a preliminary injunction. Pate presented no
evidence at the hearing. On April 15, without addressing the
issue of Pate's standing, the trial court granted the
requested preliminary injunctive relief and ordered the
1071003
6
officials "to immediately transfer into the ... Trust Fund all
monies received as part of the Exxon final judgment, less
appropriate legal fees, that have not been heretofore paid
into such trust fund." The officials timely appealed to this
Court. See Rule 4(a)(1)(A), Ala. R. App. P.
II. Discussion
"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). Action taken by a trial court
lacking subject-matter jurisdiction is void. 740 So. 2d at
1029. Of course, "a void order or judgment will not support
an appeal." Gallagher Bassett Servs., Inc. v. Phillips, [Ms.
1070416, April 11, 2008] ___ So. 2d ___, ___ (Ala. 2008).
"[S]tanding turns on whether the party has suffered an
actual injury and whether that injury is to a legally
protected right." Carey v. Howard, 950 So. 2d 1131, 1135
(Ala. 2006). A "'"mere 'interest in a problem[,]' no matter
how longstanding the interest and no matter how qualified the
[plaintiff] is in evaluating the problem, is not sufficient by
itself to render the [plaintiff] 'adversely affected' or
1071003
7
'aggrieved' so as to establish standing."'" Ex parte
Richardson, 957 So. 2d 1119, 1125 (Ala. 2006) (quoting Town of
Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253,
1260 (Ala. 2004) (See, J., concurring specially)). Instead,
an "actual or imminent, particularized, concrete, and palpable
injury ... is required for a showing of standing." Town of
Cedar Bluff, 904 So. 2d at 1261 (See, J., concurring
specially).
"'The right of a taxpayer to challenge[, either as
unconstitutional or as not conforming to statute,] the
unlawful disbursement of state funds ... is unquestioned.'"
Hunt v. Windom, 604 So. 2d 395, 396 (Ala. 1992) (quoting
Zeigler v. Baker, 344 So. 2d 761, 764 (Ala. 1977)). However,
recent decisions have emphasized that "'it is the liability to
replenish public funds that gives a taxpayer standing to
sue.'" Jordan v. Siegelman, 949 So. 2d 887, 891 (Ala. 2006)
(quoting Broxton v. Siegelman, 861 So. 2d 376, 385 (Ala.
2003)).
The Trust Fund is, insofar as its purposes are concerned,
no different than a charitable trust. See § 19-3B-405(a),
Ala. Code 1975 ("A charitable trust may be created for the
1071003
8
relief of poverty, the advancement of education ..., the
promotion of health, governmental or municipal purposes, or
other purposes the achievement of which is beneficial to the
community."). Also, the uncertainty of the ultimate
recipients of the income from the Trust Fund closely resembles
a common characteristic of a charitable trust. See Neal v.
Neal, 856 So. 2d 766, 780 (Ala. 2002). "'[B]eneficiaries with
a sufficient special interest in the enforcement of a
charitable trust can institute a suit as to that trust.'"
Rhone v. Adams, [Ms. 1060482, October 12, 2007] ___ So. 2d
___, ___ (Ala. 2007) (quoting Jones v. Grant, 344 So. 2d 1210,
1212 (Ala. 1977)). However, "mere potential beneficiaries,
whose interest is no greater than the interest of all the
other members of a large class of potential beneficiaries of
a charitable trust, have no standing to maintain an action for
the enforcement of the trust." Rhone, ___ So. 2d at ___
(emphasis added).
With these principles in mind, we turn to the issue of
Pate's
standing
to
insist
that
the
interest
on
the
compensatory-damages award that was deposited in the general
fund be transferred to the Trust Fund. Pate alleges that he
1071003
9
has standing both as a taxpayer and as an intended beneficiary
of the Trust Fund to challenge the deposit of the moneys to
the general fund. However, it is clear that he has no
standing in either capacity.
Pate's claim of standing as a taxpayer must fail, because
the Trust Fund receives no tax revenue; it is funded only from
royalties from the production of oil and gas under offshore
leases. Consequently, as Pate admits, no taxpayer is liable
to replenish any shortfall that might occur in the Trust Fund.
The absence of any such liability defeats a claim of taxpayer
standing. See Jordan and Broxton, supra. In attempting to
distinguish Jordan, Pate argues that "Jordan simply does not
control in a situation such as this, where a member of the
class being benefitted by a trust is bringing suit to protect
the capital of that trust from mismanagement." Pate's brief,
at 21-22. Although this argument is relevant to Pate's claim
of standing as an intended beneficiary of the Trust Fund, it
is irrelevant to his claim of standing as a taxpayer.
We now turn to Pate's claim of standing as an intended
beneficiary of the Trust Fund. As stated in Amendment No.
450, § 1, the Trust Fund was created "[f]or the continuing
1071003
10
benefit of the state of Alabama and the citizens thereof."
Thus, according to Pate, he, as does "each and every" Alabama
citizen, has a "vested right" in the moneys derived from the
assets of the Trust Fund. Pate's brief, at 20, 24. Pate
admits that the Alabama Constitution does "not promise that
any amount of trust-generated funds will be spent on projects
that personally benefit [him] to a degree greater than other
Alabama citizens." Pate's brief, at 27. However, according
to Pate, "any citizen of the State of Alabama is a beneficiary
of the ... Trust Fund [and] has standing to bring suit to
prevent the mismanagement of that trust." Pate's brief, at
25. We disagree.
It is obvious that Pate does not allege that he has
suffered the "actual or imminent, particularized, concrete,
and palpable injury," which is necessary to support a finding
of standing. Town of Cedar Bluff, 904 So. 2d at 1261.
Although Pate may be a member of the community to be benefited
by the Trust Fund, he cannot demonstrate a "sufficient special
interest in [its] enforcement [to entitle him] to institute a
suit as to that trust." Rhone, ___ So. 2d at ___. Indeed,
his arguments belie any contention that his interest is
1071003
11
"special" in any way. By his own admission, Pate's interest
is no greater than that of millions of other Alabamians, all
of whom may benefit, directly or indirectly, from the
expenditure of the income derived from the assets of the Trust
Fund. "'It is well established that persons are not entitled
to sue if their only benefit from the enforcement of the trust
is that shared by other members of the public.'" Hicks v.
Dowd, 157 P.3d 914, 920 (Wyo. 2007) (quoting In re Clement
Trust, 679 N.W.2d 31, 37 (Iowa 2004)).
In support of his argument that he has standing as a
beneficiary of the Trust Fund, Pate likens his status to that
of the plaintiff in Lee v. Bronner, 404 So. 2d 627 (Ala.
1981). In that case, this Court held that a "contributing
member of the [State] Employees' Retirement System" had
standing to bring an action alleging "dereliction of duty and
statutory violations concerning the retirement fund." 404 So.
2d at 629. However, unlike Pate, the member had "contributed
his own money to the retirement fund," and, thus, had a
"direct pecuniary interest" in the management of the fund.
Id. Indeed, Pate's situation is more analogous to that of the
plaintiff in Knutson v. Bronner, 721 So. 2d 678, 680 (Ala.
1071003
12
1998), in which this Court held that "a taxpayer who is not a
member of the [Retirement Systems of Alabama] has [no]
standing to bring an action against [its] chief executive
officer."
In conclusion, Pate asks: "Finally, who would have
standing to bring suit if not Pate or some other similarly
situated citizen?" Pate's brief, at 28. The officials argue
that the direct beneficiary of 1% of the oil and gas capital
payments -- i.e., the Lands Division of the Department of
Conservation -- would suffer "the first and most quantifiable
injury,"
State's
brief,
at
30,
and
that
the
funds
constitutionally entitled to receive portions of the income
from the Trust Fund would also be injured. Pate does not
contest the standing of these entities; instead, he merely
questions the strength of their incentives to sue the
officials. His doubts about their incentives in no way cloak
Pate with standing that otherwise cannot be established.
Although Pate may be quite interested in what he perceives to
be a problem, he has no standing to sue the officials under
the facts of this case.
III. Conclusion
1071003
13
For the foregoing reasons, the preliminary injunction
entered against the officials is vacated, and the action filed
by Pate is dismissed. Further, because a void order will not
support an appeal, this appeal is dismissed.
ORDER VACATED; ACTION DISMISSED; AND APPEAL DISMISSED.
Cobb, C.J., and Lyons, Stuart, Smith, Parker, and
Murdock, JJ., concur.
Bolin, J., concurs specially.
See, J., concurs in the result.
1071003
14
BOLIN, Justice (concurring specially).
The main opinion states that "[t]he Trust Fund is,
insofar as its purposes are concerned, no different than a
charitable trust." So. 2d at . Inasmuch as Amendment
No. 450 (now § 219.02, Ala. Const. 1901 (Off. Recomp.))
creates an express trust that is not a private trust, I agree
that the Alabama Trust Fund is in the nature of a charitable
trust. I write specially to comment that, notwithstanding the
fact that Pate in this action alleged and argued only that he
had standing as a taxpayer and/or as a beneficiary of the
Trust Fund, there remains the question of what person or
entity would have standing to enforce the trust as a settlor.
A settlor is defined in § 19-3B-103(16), Ala. Code 1975,
as
"a person, including a testator, who creates, or
contributes property to, a trust. If more than one
person creates or contributes property to a trust,
each person is a settlor of the portion of the trust
property attributable to that person's contribution
except to the extent another person has the power to
revoke or withdraw that portion."
(Emphasis added.) Assuming that the oil and gas capital
payments obligated to the trust res or trust capital are being
"contributed" by the State of Alabama, that accounts for only
1071003
15
one of the possible types of potential settlors embraced in
the definition above.
The Trust Fund was created not by legislative act, but
rather, by the ratification of Amendment No. 450 by the
citizens/electors of the State. Amendment No. 450 begins by
stating: "For the continuing benefit of the state of Alabama
and the citizens thereof, there is hereby created an
irrevocable, permanent trust fund named 'the Alabama trust
fund' which shall be funded and administered in accordance
with the provisions of this amendment"; it ends by stating
that "[t]his amendment shall be self-executing ...." (Emphasis
added.) The legislative act proposing Amendment No. 450 was
wholly ineffectual until it was given life by the electorate
-- the legislature can propose a constitutional amendment, but
cannot ratify one. See In Re Opinion of the Justices, 252
Ala. 89, 39 So. 2d 665 (Ala. 1949), and Gafford v. Pemberton,
409 So. 2d 1367 (Ala. 1982). I would submit that the Trust
Fund is an express trust created by the citizens of the State
of Alabama and funded by the sale of State assets, so that
both the citizens and the State are joint settlors of the
trust.
1071003
16
Contrary to the Restatement (Second) of Trusts, § 391
(1959), the Uniform Trust Code, in § 19-3B-405(c), Ala. Code
1975, specifically provides that "[t]he settlor of a
charitable trust, among others, may maintain a proceeding to
enforce the trust." (Emphasis added.) The question is
therefore posed: Who has the authority, and attendant
standing, to carry out the power of enforcement conferred by
this section with regard to the Trust Fund? A trustee is a
fiduciary and has a fiduciary's obligation to marshal and take
possession of all assets that properly belong to the trust
res. Section 19-3B-809, Ala. Code 1975, directs that "[a]
trustee shall take reasonable steps to take control of and
protect the trust property." Section 19-3B-812 further
directs that "[a] trustee shall take reasonable steps to
compel a ... person to deliver trust property to the trustee.
..." These sections from the Uniform Trust Code combine to
grant the settlor of a charitable trust the right to maintain
a proceeding to compel a negligent or recalcitrant trustee to
take control of trust property, and, if necessary, to compel
a person to deliver trust property to the trust. In addition
to the right of a trust beneficiary who has enforcement
1071003
17
standing by virtue of an "actual or imminent, particularized,
concrete, and palpable injury," Town of Cedar Bluff v.
Citizens Caring for Children, 904 So. 2d 1253, 1261 (Ala.
2004) (See, J., concurring specially), the legislature clearly
granted an additional right to a sole or joint settlor of a
charitable trust to enforce that trust; unfortunately,
however, the legislature was not as clear in setting out what
person or entity actually possesses that standing as a
settlor.
Notwithstanding any ability Pate may have had to bring
suit as a settlor to enforce the trust, either as a member of
the citizenry who created the trust or as a representative of
the same, it could not have been successful. A suit to
enforce a trustee's duty must be brought against the trustees
of the trust. In this action, Pate sued only three of the
nine trustees of the Trust Fund -- the governor, the finance
director, and the state treasurer, both in their official
capacities and as trustees of the Trust Fund. Therefore, even
assuming that Pate would have standing as a settlor, there
would have been a failure to name indispensable parties to the
action. | July 3, 2008 |
08f827cb-10c2-4242-a04b-4a7432410905 | Progressive Specialty Insurance Company v. Gerald Gore and Jeanette Gore | N/A | 1070491 | Alabama | Alabama Supreme Court | Rel 06/27/08 Progressive Specialty Insurance Company
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
_________________________
1070491
_________________________
Progressive Specialty Insurance Company
v.
Gerald Gore and Jeanette Gore
Appeal from Shelby Circuit Court
(CV-05-1280)
PER CURIAM.
Progressive Specialty Insurance Company ("Progressive")
appeals from a summary judgment in favor of Gerald Gore and
his wife, Jeanette Gore, in a declaratory-judgment action
commenced by Progressive to determine its obligation, if any,
1070491
2
to pay uninsured-motorist benefits under an automobile policy
issued to Gerald Gore. We affirm.
I. Factual Background
The dispositive facts are undisputed. On November 13,
2002, Jeanette Gore completed an application to purchase
automobile insurance from Progressive. The application
contemplated that the policy would be issued solely in the
name of Gerald Gore, who was not present during the
application process.
During the application process, Jeanette was presented
with the following document (hereinafter referred to as "the
rejection form"):
"REJECTION OF UNINSURED/UNDERINSURED MOTORIST COVERAGE
"I have been offered Uninsured/Underinsured Motorist
Coverage and I reject the option to purchase any
Uninsured/Underinsured
Motorist
Coverage.
I
understand
that
Uninsured/Underinsured
Motorist
Coverage would have protected me, my resident
relatives, and occupants of a covered vehicle if any
of us sustain bodily injury, including any resulting
death, in an accident in which the owner or operator
of a motor vehicle who is legally liable does not
have insurance (an uninsured motorist) or does not
have enough insurance (an underinsured motorist).
"I understand and agree that this rejection of
Uninsured/Underinsured Motorist Coverage shall be
binding on all persons insured under the policy, and
that this rejection shall also apply to any renewal,
1070491
3
reinstatement,
substitute,
amended,
altered,
modified, or replacement policy with this company or
any affiliated company, unless a named insured
submits a request to add the coverage and pays the
additional premium."
The rejection form included a space for the "signature of the
named insured." In that space, however, Jeanette signed her
own name.
On November 15, 2002, Progressive issued a policy to
Gerald as the only named insured. Both Gerald and Jeanette
were listed on the policy as "drivers." The declarations
stated that uninsured/underinsured-motorist coverage had been
"rejected." The policy was in force on August 12, 2005.
On that date, Jeanette was injured when the automobile
she was operating was struck by an uninsured driver. The
Gores filed a claim with Progressive for uninsured-motorist
("UM") benefits based on Jeanette's injuries. Subsequently,
Progressive
commenced
this action, seeking a judgment
declaring that "Jeanette Gore validly executed the UM
rejection in her individual capacity and as the agent for her
husband in procuring the policy" and, consequently, that
Progressive was not liable for UM benefits.
1070491
4
Progressive moved for a summary judgment. In their
response to Progressive's motion, the Gores argued:
"The law in Alabama which applies to UM coverage
mandates that only a named insured can reject [UM]
coverage under a policy of automobile liability
insurance. [Progressive] can offer no proof
whatsoever, that Gerald Gore, the only named insured
under the policy issued by Progressive, rejected
said coverage. Therefore, Gerald Gore is entitled
to [UM] coverage under the policy, and [Jeanette
Gore] is entitled to coverage as his spouse and as
a listed driver under the policy."
The Gores requested that the trial court "deny the relief
[sought] by Progressive, and ... enter an Order holding that
[they] are entitled to [UM] coverage and benefits under the
policy." The trial court entered a summary judgment so
holding, and Progressive appealed.
The resolution of this appeal turns on the application of
the Uninsured Motorist Statute, Ala. Code 1975, § 32-7-23(a),
to the undisputed facts of this case. Section 32-7-23(a)
provides, in pertinent part:
"(a) No automobile liability or motor vehicle
liability policy insuring against loss resulting
from liability imposed by law for bodily injury or
death suffered by any person arising out of the
ownership, maintenance or use of a motor vehicle
shall be delivered or issued for delivery in this
state with respect to any motor vehicle registered
or principally garaged in this state unless coverage
is provided therein or supplemental thereto, ... for
1070491
5
the protection of persons insured thereunder who are
legally entitled to recover damages from owners or
operators of uninsured motor vehicles because of
bodily injury, sickness or disease, including death,
resulting
therefrom; provided, that the named
insured shall have the right to reject such coverage
...."
(Emphasis added.)
II. Standard of Review
"Our standard of review is de novo. That is the standard
by which we review the trial court's grant or denial of a
summary-judgment motion, as well as the standard by which we
review questions of law regarding statutory construction."
Bishop v. Chilton County, [Ms. 1061153, January 18, 2008] ___
So. 2d ___, ___ (Ala. 2008). See Pinigis v. Regions Bank, 977
So. 2d 446 (Ala. 2007); Smith v. State Farm Mut. Auto. Ins.
Co., 952 So. 2d 342 (Ala. 2006).
III. Discussion
"The Uninsured Motorist Statute ..., absent rejection by
the named insured, mandates uninsured motorist coverage for
the protection of persons insured under a motor vehicle
liability policy." Holloway v. Nationwide Mut. Ins. Co., 376
So. 2d 690, 694 (Ala. 1979) (emphasis added). Under this
statute and well-established Alabama caselaw, any purported
1070491
6
rejection or waiver of UM coverage by one who is not the named
insured is invalid. Federated Mut. Ins. Co. v. Vaughn, 961
So. 2d 816, 819 (Ala. 2007) ("[I]f the named insured does not
reject UM coverage, the insurer must provide UM coverage not
only to the named insured, but also to any additional
insureds."); Continental Cas. Co. v. Pinkston, 941 So. 2d 926,
929 (Ala. 2006) ("[Section] 32-7-23, Ala. Code 1975, requires
that every automobile-liability-insurance policy issued or
delivered in Alabama provide uninsured/underinsured-motorist
coverage with limits for bodily injury or death of at least
$20,000 per person, unless the coverage is specifically
rejected in writing by the named insured."); State Farm Mut.
Auto. Ins. Co. v. Martin, 292 Ala. 103, 289 So. 2d 606 (1974)
(written rejection of UM coverage by the spouse of the named
insured was ineffective to waive coverage for the named
insured or for the couple's daughter, who was injured by an
uninsured motorist); Nationwide Ins. Co. v. Nichols, 868 So.
2d 457 (Ala. Civ. App. 2003) (written rejection of UM coverage
by one spouse, who was a named insured, was ineffective to
waive coverage for the other spouse, who was also a named
1070491
7
insured, or for the couple's son, who was killed by an
uninsured motorist).
Progressive
acknowledges,
as
it
must,
this
well-
established principle. However, relying on that portion of
the rejection clause in which Jeanette purported to "agree
that [her] rejection of [UM] Coverage [would] be binding on
all persons insured under the policy," Progressive invites
this Court to adopt an exception to this principle by
construing the statute to allow a person who is not a named
insured to reject coverage for the named insured as the
latter's "agent." For that proposition, it cites cases from
lower appellate courts in Kansas and Louisiana, namely,
Ridgway v. Shelter Ins. Cos., 22 Kan. App. 2d 218, 913 P.2d
1231 (1996), and Soileau v. Hartford Accident & Indem. Co.,
182 So. 2d 76 (La. Ct. App. 1966). Citing authority for
general principles of agency, Progressive argues that "[i]f
Jeanette Gore had the authority to bind her husband into a
policy of insurance with Progressive, [then she must have had]
the authority to bind him on one particular term of the
contract." Progressive's brief, at 14.
1070491
8
We need not decide whether, under our caselaw, general
principles of agency would allow an individual to waive UM
coverage by signing a rejection form as an agent for another,
because Jeanette signed the rejection form in her own name,
not in the name of the named insured. Our statute makes no
provision for waiver by anyone other than the named insured.
Section 32-7-23(a) flatly declares "that the named insured
shall have the right to reject such coverage." (Emphasis
added.) The purposes of 32-7-23(a) are to "assure that a
person injured by an uninsured motorist will be able to
recover the total amount of [her] damages and that the insurer
will not be allowed to insert provisions in the policy
limiting the insured's recovery." Star Freight, Inc. v.
Sheffield, 587 So. 2d 946, 957 (Ala. 1991) (some emphasis
added; some emphasis omitted). "'[A] person relying on
another to make him or her a named insured may reasonably
expect that the coverages obtained will be those mandated by
law.'" Nichols, 868 So. 2d at 462 (quoting Preferred Risk
Ins. Co. v. Cooper, 638 N.W.2d 717, 719 (Iowa 2002)). What
Jeanette signed does not purport to be a waiver of UM coverage
by the named insured. Instead, it merely purports to be a
1070491
9
rejection of UM coverage by Jeanette herself, acting only in
her individual capacity.
IV. Conclusion
Jeanette's execution of the rejection form was a nullity,
and the purported waiver of UM coverage was void. For these
reasons, the trial court did not err in entering a summary
judgment holding that the Gores are entitled to UM coverage
and benefits under the policy. That judgment is, therefore,
affirmed.
AFFIRMED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, and
Parker, JJ., concur.
See, J., concurs specially.
Murdock, J., concurs in the result.
1070491
10
SEE, Justice (concurring specially).
I concur fully in the main opinion. I write specially
simply to note why I do not believe that Gerald Gore "signed"
the
uninsured/underinsured-motorist
insurance-coverage
waiver.
The pertinent portion of § 32-7-23, Ala. Code 1975,
Alabama's Uninsured Motorist statute, provides:
"No automobile liability or motor vehicle liability
policy
insuring
against
loss
resulting
from
liability imposed by law for bodily injury or death
suffered by any person arising out of the ownership,
maintenance or use of a motor vehicle shall be
delivered or issued for delivery in this state with
respect
to
any
motor
vehicle
registered
or
principally garaged in this state unless coverage is
provided therein or supplemental thereto ... under
provisions approved by the Commissioner of Insurance
for the protection of persons insured thereunder who
are legally entitled to recover damages from owners
or operators of uninsured motor vehicles because of
bodily injury, sickness or disease, including death,
resulting therefrom; provided, that the named
insured shall have the right to reject such coverage
...."
(Emphasis added.) This Court has interpreted this statute to
"require[] that every automobile-liability-insurance policy
issued
or
delivered
in
Alabama
provide
uninsured/underinsured-motorist coverage with limits for
bodily injury or death of at least $20,000 per person, unless
the coverage is specifically rejected in writing by the named
1070491
11
insured." Continental Cas. Co. v. Pinkston, 941 So. 2d 926,
929 (Ala. 2006). As the main opinion states, "[u]nder this
statute and well-established Alabama caselaw, any purported
rejection or waiver of [uninsured-motorist] coverage by one
who is not the named insured is invalid." ___ So. 2d at ___.
Similarly, the main opinion notes that "[o]ur statute makes no
provision for waiver by anyone other than the named insured."
___ So. 2d at ___.
The Supreme Court of Rhode Island recently discussed what
constitutes a "signature." Carrozza v. Carrozza, 944 A.2d 161
(R.I. 2008). In that case, the question was the validity of
a grantor's "signature" on a deed when the "signature" "was
printed on the [deed] in separate block letters, rather than
in cursive adjoining letters." Carrozza, 944 A.2d at 165. The
court noted:
"Black's Law Dictionary defines the term
'signature' as 'A person's name or mark written by
that person or at that person's direction.' Black's
Law Dictionary 1415 (8th ed. 2004). We are further
persuaded by the more explicit entry in the
dictionary's sixth edition, in which the term
'signature' was defined quite broadly. 'A signature
may
be
written
by
hand,
printed,
stamped,
typewritten, engraved, photographed, or cut from one
instrument and attached to another ....' Black's Law
Dictionary 1381 (6th ed. 1990). The validity of a
signature, therefore, does not turn on the form of
1070491
12
the mark; indeed any mark will suffice, as long as
that mark is adopted as one's own."
944 A.2d at 195. See also Guam Election Comm'n v. Responsible
Choices for All Adults Coal., 2007 Guam 20 ¶ 68 (2007) ("A
'signature' is '1. A person's name or mark written by that
person or at the person's direction ....' (quoting Black's Law
Dictionary 1387 (7th ed. 1999))). This Court has reached
similar conclusions with respect to a signature on a deed.
See Loyd v. Oates, 143 Ala. 231, 233, 38 So. 1022, 1023 (1905)
("Moreover, this court has held ... that, if a husband and
wife
appear
before
an
officer
and
acknowledge
their
signatures
to a conveyance, the conveyance is valid, although neither of
them actually signed their names."); Lewis v. Watson, 98 Ala.
479, 483, 13 So. 570, 572 (1893) ("It follows ... that if the
jury believed that Fletcher signed the sheriff's name to the
deed ... at the instance and in the presence of the latter ...
Holley acquired a perfect title to the land in question ...
when that deed was executed.").
In the case before us, it is undisputed that the only
name (or mark) that appears on the waiver is that of Jeanette
Gore. Because Gerald Gore's name (or mark) does not appear on
1070491
13
the waiver, he did not waive the uninsured/underinsured-
motorist coverage. | June 27, 2008 |
06ffa2cc-5a95-4545-b8dc-e42e441ed3bc | Ex parte Nathan Rodgers Construction, Inc. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Nathan Rodgers Construction, Inc. v. City of Saraland) | N/A | 1070640 | Alabama | Alabama Supreme Court | REL: 06/20/2008
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, 2007-2008
_________________________
1070640
_________________________
Ex parte Nathan Rodgers Construction, Inc.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Nathan Rodgers Construction, Inc.
v.
City of Saraland)
(Mobile Circuit Court, CV-05-218.51;
Court of Civil Appeals, 2060803)
LYONS, Justice.
1070640
2
Nathan
Rodgers
Construction,
Inc.
("Rodgers"),
petitioned
this Court for a writ of certiorari seeking review of the
Court of Civil Appeals' no-opinion affirmance of the Mobile
Circuit Court's judgment upholding the City of Saraland's
denial of Rodgers's application for rezoning. See Nathan
Rodgers Constr., Inc. v. City of Saraland (No. 2060803,
January 18, 2008), __ So. 2d __ (Ala. Civ. App. 2008) (table).
We granted the petition to consider Rodgers's contention that
the decision of the Court of Civil Appeals conflicts with
Martin v. O'Rear, 423 So. 2d 829 (Ala. 1982). We affirm.
I. Facts and Procedural History
Rodgers is a real-estate development company that owns
eight acres of property in the City of Saraland on which it
wants to develop a subdivision consisting of patio homes.
However, patio homes traditionally sit on lots with frontage
of less than 100 feet and Rodgers's property is in an area
currently zoned R-1, which allows only single-family homes on
lots with frontage of 100 feet or more. Rodgers filed an
application for rezoning with the Saraland Planning Commission
requesting that its property be rezoned to R-1(A), which
1070640
3
allows single-family homes on lots with less than 100 feet of
frontage.
At
the
planning
commission
hearing
on
Rodgers's
application for rezoning, several residents expressed concern
that the rezoning would create traffic and drainage problems
in the surrounding areas, and the planning commission
recommended that the Saraland City Council deny Rodgers's
application. The city council then held a public hearing on
Rodgers's application for rezoning. Several residents again
expressed concern about potential traffic and drainage
problems caused by the rezoning, and the city council denied
Rodgers's application for rezoning.
Rodgers sued Saraland, seeking a judgment declaring that
Saraland's zoning regulations and ordinances, under which the
property is presently classified, are unconstitutional and
otherwise invalid as applied to its property. Rodgers also
sought injunctive relief to reverse Saraland's denial of the
application for rezoning and asserted a claim under 42 U.S.C.
1983 alleging that Saraland's actions in denying its
application for rezoning were discriminatory. After a bench
trial in which, among others, a city councilman, a member of
1070640
4
the planning commission, and a city councilman who also served
on the planning commission testified, the trial court found in
favor of Saraland on all counts. The trial court's order
stated:
"[Saraland] presented substantial evidence to the
Court that its decision was based on legitimate
police powers consideration, which was the City's
concern regarding increased traffic congestion on
Celeste Road. While some aspects of 'traffic
engineering' do require an expert witness in order
to
offer
testimony
to
a
court,
[Saraland's]
witnesses were qualified, as lay witnesses and
members of the City Council and long time residents
of the City of Saraland, to testify as to their
opinion regarding [the effect of Rodgers's] proposed
development on traffic on Celeste Road. The Court
could
accept
or
reject [Saraland's] testimony
regarding traffic congestion. The Court is not
impressed by the testimony offered by [Rodgers] to
counter [Saraland's] traffic testimony. ... Thus,
the City Council's decision to discourage increased
automobile traffic by not rezoning [Rodgers's]
property is a valid exercise of the city's police
power as increased traffic can impact public safety.
The Saraland City Council may not necessarily be
correct in [its] assumptions about increased traffic
but there is no evidence that [it] discriminated
against the defendant or reached [its] decision
based on an improper motive.
"Thus from hearing all the testimony and
reviewing the applicable law, as to [Rodgers's]
count asking the Court for a declaratory judgment,
the Court finds that the decision of the Saraland
City Council in denying [Rodgers's] zoning change
was valid and lawful and was not arbitrarily [sic]
or capricious."
1070640
5
Rodgers appealed to the Court of Civil Appeals, which
affirmed the trial court's judgment without an opinion, citing
in its no-opinion affirmance Pollard v. Unus Props., LLC, 902
So. 2d 18, 24-25 (Ala. 2004); American Petroleum Equip. &
Constr., Inc. v. Fancher, 708 So. 2d 129, 132 (Ala. 1997); BP
Oil Co. v. Jefferson County, 571 So. 2d 1026, 1028-29 (Ala.
1990); and City of Birmingham v. Morris, 396 So. 2d 53, 55
(Ala. 1981). Rodgers then petitioned this Court for
certiorari review, contending that prior decisions of this
Court conflict with the Court of Civil Appeals' no-opinion
affirmance. We granted certiorari review in this case to
consider Rodgers's contention that the Court of Civil Appeals'
no-opinion affirmance conflicts with Martin v. O'Rear, 423 So.
2d 829, 831 (Ala. 1982).
II. Standard of Review
"In reviewing a decision of the Court of Civil
Appeals on a petition for a writ of certiorari, 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)."
Ex parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005).
1070640
6
The standard of review in a zoning case is highly
deferential to the municipal governing body. See American
Petroleum Equip. & Constr., Inc., 708 So. 2d at 132 ("Because
the adoption of an ordinance is a legislative function, the
courts must apply a highly deferential standard in zoning
cases.").
"'[P]assage of a zoning ordinance is a legislative
act, and it is well established that municipal
ordinances are presumed to be valid and reasonable,
to be within the scope of the powers granted
municipalities to adopt such ordinances, and are not
to be struck down unless they are clearly arbitrary
and unreasonable.' Cudd v. City of Homewood, 284
Ala. 268, 270, 224 So. 2d 625, 627 (1969)."
Pollard, 902 So. 2d at 24.
III. Analysis
Rodgers contends that the Court of Civil Appeals'
affirmance of the trial court's judgment upholding Saraland's
denial of its application for rezoning conflicts with Martin.
According to Rodgers, Martin held that a city's zoning
decision must be based upon professional or expert studies,
and here, it says, Saraland's denial of its application was
based solely upon the speculative testimony of several
residents. Specifically, Rodgers asserts that in Martin, 423
So. 2d at 831, this Court reversed the trial court's judgment
1070640
7
affirming the City of Jasper's adoption of an amendment to a
zoning ordinance because the City of Jasper produced "no
documentary studies or expert witnesses to indicate that there
was any factual basis" for the fears that the amendment would
cause overcrowding and other problems. Rodgers contends that,
as was the case with the City of Jasper, Saraland had no
factual basis for denying its application for rezoning;
therefore, it argues, the Court of Civil Appeals' decision
affirming the trial court's judgment in favor of Saraland is
due to be reversed. Saraland contends that Martin is
distinguishable from the present case because in Martin the
City of Jasper passed a zoning ordinance to prevent a
landowner from building, unlike here, where Rodgers is
requesting that its property be rezoned in order to build.
In Martin, Eula Mae Martin purchased a parcel of property
in the City of Jasper that was zoned for single-family homes,
apartments, and businesses. 423 So. 2d at 829. Martin
obtained a permit to build a seven-unit condominium complex on
the property and began excavating. 423 So. 2d at 829. Schley
O'Rear and 10 other residents of the City of Jasper ("the
O'Rear group") petitioned the city's planning commission to
1070640
8
rezone Martin's property to allow only single-family homes and
thereby prevent construction of the condominium complex by
Martin. 423 So. 2d at 829-30. The O'Rear group appeared at
a planning commission meeting in support of the petition, and
the planning commission recommended that the Board of
Commissioners for the City of Jasper rezone the property and
surrounding areas to allow only single-family homes. 423 So.
2d at 830.
Pending action by the Board of Commissioners on its
petition for rezoning, the O'Rear group sought a temporary
restraining order ("TRO"), a preliminary injunction, and a
permanent injunction to prevent Martin from building her
condominium complex. 423 So. 2d at 829-30. The trial court
issued the TRO, and the Board of Commissioners then adopted an
ordinance to rezone Martin's property and the surrounding area
to allow only single-family homes. 423 So. 2d at 830. Based
on the Board's adoption of the rezoning ordinance, the trial
court issued a preliminary injunction preventing Martin from
proceeding with the construction of her condominium complex.
423 So. 2d at 830.
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9
After a hearing on the permanent injunction, the trial
court enjoined Martin from building the condominium complex.
423 So. 2d at 830. Martin then appealed the trial court's
judgment to this Court. 423 So. 2d at 829. This Court
reversed the judgment of trial court and remanded, stating:
"It is clear from this evidence that the new
classification is not consistent with the land use
pattern of the area. The attempts by the plaintiffs
to show a substantial relationship of the zoning
amendment to public health, safety, morals and
general welfare amounted to speculative testimony by
the plaintiffs that a seven-unit complex might cause
traffic problems or parking problems, and general
overcrowding of an old, quiet neighborhood. The
plaintiffs introduced no documentary studies or
expert witnesses to indicate that there was any
factual basis to these fears."
Martin, 423 So. 2d at 831.
Our review of the record in Martin shows that the
following individuals testified at the hearing on the
permanent injunction: the mayor, the chairman of the planning
commission, one member of the Board of Commissioners, the city
engineer, the city building inspector, four members of the
O'Rear group, and Martin.
Hal Coons, the chairman of the planning commission,
testified about the circumstances that led to the planning
commission's recommendation that the Board of Commissioners
1070640
10
rezone Martin's property and surrounding areas. Coons
testified that before the planning commission's consideration
of the O'Rear group's petition for rezoning, O'Rear came to
him to discuss Martin's property. The record reflects the
following exchange occurred between Coons and defense counsel:
"[DEFENSE COUNSEL]: And did Mr. O'Rear tell you what
his group planned to do or the intentions of his
group? Well, let me ask you this–-what did he tell
you on that occasion?
"[COONS]: Well, I went with Mr. O'Rear up to look at
this area, and we did discuss the fact that there
might be some blight beginning to creep into this
old established neighborhood.
"....
"[DEFENSE COUNSEL]: Did Mr. O'Rear voice to you some
concern about blacks coming into the neighborhood?
"[COONS]: Yes, I think he did.
"....
"[DEFENSE COUNSEL]: Did the question of a black
buying one of these proposed condominium units come
up in this discussion?
"[COONS]: I believe we discussed that.
"....
"[DEFENSE COUNSEL]: ... [A]t the planning commission
did anyone purport to have made a study of what
effect the rezoning would have or was there any
discussion along those lines?
1070640
11
"[COONS]: Well, we generally discuss it. In this
case I'll say maybe not enough, but we did.
"....
"[DEFENSE
COUNSEL]:
Why
did
you
tender
your
resignation as chairman of the planning commission?
"....
"[COONS]: I felt that we had committed–-we had done
a bad thing after it came to light that Mrs. Martin
would not be able to build her proposed building on
the lot, because at the time we made the ruling-–
"....
"[DEFENSE COUNSEL]: Do you have a judgment as to the
effect of the rezoning upon the safety of the
citizens of Jasper in this East Jasper community?
"[COONS]: I wouldn't think that it would be–-it
would not hurt the safety of it.
"[DEFENSE COUNSEL]: You don't feel that it would
affect it one way or the other?
"[COONS]: I don't.
"[DEFENSE COUNSEL]: It would have no effect one way
or the other?
"[COONS]: In my opinion.
"[DEFENSE COUNSEL]: As a matter of fact, Mr. Coons,
do you feel that the rezoning would affect the
public health one way or the other?
"[COONS]: In my opinion it would not affect it.
"[DEFENSE COUNSEL]: Do you feel that it would affect
one way or the other the public morals?
1070640
12
"[COONS]: I would think not.
"[DEFENSE COUNSEL]: Wouldn't affect it one way or
the other–-things would be just like they were
before as afterwards, is that correct?
"[COONS]: That's correct.
"....
"[DEFENSE COUNSEL]: Matter of fact this was done for
the benefit of Mr. Schley O'Rear, was it not?
"[COONS]: We did this one by heart instead of by
head.
"[DEFENSE COUNSEL]: And your heart is for O'Rear?
"[COONS]: That's correct."
Bill Trotter, a member of the Board of Commissioners, then
testified about the Board's adoption of the rezoning
ordinance. Trotter was the only member of the Board who
testified at the hearing, and the record reflects the
following exchange occurred between Trotter and defense
counsel:
"[DEFENSE COUNSEL]: What investigation did you make
with regard to the area after receipt of the
recommendation and before the ... Commission acted
on it?
"[TROTTER]: I didn't make no investigation.
"[DEFENSE COUNSEL]: Did you make any inquiries of
anybody about whether the rezoning would help the
public safety in the area?
1070640
13
"[TROTTER]: No, sir, the only thing I went by was
the zoning board's request.
"[DEFENSE COUNSEL]: You acted strictly in response
to
what
the
recommendations
of
the
planning
commission was. Made no further inquiries, had no
further judgment about it except that, is that
correct?
"[TROTTER]: I had my own feeling about the thing,
but other than that; no sir.
"[DEFENSE COUNSEL]: Mr. Trotter, do you have any
reason to think that the public health of the City
of Jasper would be improved by rezoning of that
property from R-4 to R-2?
"[TROTTER]: From my standpoint?
"[DEFENSE COUNSEL]: Yes, sir.
"[TROTTER]: I would presume that if you leave it
zoned R-2 I think it would help the neighborhood
over there; yes, sir.
"[DEFENSE COUNSEL]: Help the neighborhood?
"[TROTTER]: Well, yes, sir.
"[DEFENSE COUNSEL]: In what respect?
"[TROTTER]:
Well,
the neighborhood is crowded
anyway, it would just add more people to it.
"....
"[DEFENSE COUNSEL]: You acted totally in reliance on
the recommendation of the planning commission, is
that correct?
"[TROTTER]: That's true."
1070640
14
After a review of the record in Martin, we conclude that
this Court's reference in Martin to "speculative testimony" of
the ill effects of Martin's condominium complex was grounded
in the Board's adoption of the rezoning ordinance based solely
on the planning commission's recommendation, which, in turn,
was based solely on the concern of the O'Rear group that
Martin's condominium complex would be a blight to the
neighborhood and would enhance the probability that African-
Americans would move into the area. The reference in Martin
to the lack of "documentary studies or expert witnesses to
indicate that there was any factual basis to these fears" is
completely understandable in the context of the record in
Martin reflecting that the zoning decision was based solely on
speculation.
The facts of this case are distinguishable from those in
Martin. In the present case, Saraland presented evidence
indicating that its decision to deny Rodgers's application for
rezoning was not based solely on speculation. City councilman
Howard Rubenstein and planning commission member Barbara
Scarbrough both testified that the decisions they made
regarding Rodgers's application for rezoning were based on
1070640
15
personal knowledge of the traffic congestion in the area and
concerns that rezoning the property to allow smaller lots and
more residential units would enhance the traffic problems.
The record reflects the following exchange between Rubenstein
and plaintiff's counsel:
"[PLAINTIFF'S COUNSEL]: You didn't rely on any
expert studies or reports in voting regarding
traffic or drainage when you voted [to deny
Rodgers's application for rehearing]?
"[RUBENSTEIN]: I primarily relied on my experience
as a resident of Saraland. I drive this area twice
a day, sometimes four or six times a day. I've
experienced firsthand the traffic problems this
particular area has. This area has been a frequent
area of complaint over the last four years from
residents because of the congestion. And those were
some of the factors that as an elected official I
relied on in making my judgment.
"....
"[PLAINTIFF'S COUNSEL]: And do you have any evidence
that eight homes is going to create an impact on
traffic or drainage?
"[RUBENSTEIN]: In my opinion as an elected official
I think it would have an adverse effect on traffic
and congestion.
"[PLAINTIFF'S COUNSEL]: And that's based solely on
your personal knowledge of the area?
"[RUBENSTEIN]: Yes, ma'am."
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16
The record reflects the following exchange between Scarbrough
and defense counsel:
"[DEFENSE COUNSEL]: Why did you vote against [the
application for rezoning]?
"[SCARBROUGH]: I had questions about the traffic
flow, the ingress into the property, how the streets
were developed, how the traffic was going to flow.
And also I live on Alvarez Drive, the street that
would come out, so I was concerned about the
traffic.
"[DEFENSE COUNSEL]]: How long have you lived in that
area?
"[SCARBROUGH]: Thirty-five years."
Rodgers relies on the testimony of Marvin Adams, the city
councilman who also served on the planning commission, who
testified that he had only as much of a "clue" of what impact
the rezoning would have on traffic as defense counsel might
have. However, we conclude that the testimony of Rubenstein
and Scarbrough constitute an independent and adequate basis
for concluding that Saraland's decision was not based solely
on speculation. Thus, this case is distinguishable from
Martin. For the foregoing reasons, we conclude that
Saraland's denial of Rodgers's application for rezoning was
not arbitrary and capricious.
IV. Conclusion
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17
Finding no conflict with Martin, we affirm the judgment
of the Court of Civil Appeals.
AFFIRMED.
Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur. | June 20, 2008 |
f4523fd1-2285-4d8d-81ad-3ba76eecbd0b | Ex parte Arthur Felton Holbert. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Arthur Felton Holbert v. State of Alabama) | N/A | 1070456 | Alabama | Alabama Supreme Court | Rel: 07/11/08
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
_________________________
1070456
_________________________
Ex parte Arthur Felton Holbert
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Arthur Felton Holbert
v.
State of Alabama)
(Morgan Circuit Court, CC-05-1386 and CC-05-1387;
Court of Criminal Appeals, CR-06-1574)
LYONS, Justice.
Arthur Felton Holbert petitioned this Court for a writ of
certiorari to review the decision of the Court of Criminal
1070456
Holbert was convicted of the charges of violating
1
Decatur's open-container ordinance and carrying a pistol
without a permit and was sentenced accordingly. Those
convictions and sentences are not before us.
2
Appeals affirming his conviction for felony driving under the
influence of alcohol ("DUI"), a violation of § 32-5-191(a)(2)
and (h), Ala. Code 1975. We granted certiorari review to
consider, as a material question of first impression, whether
a prior in-state DUI conviction in a municipal court counts
toward the total number of prior DUI convictions necessary to
constitute the felony offense of DUI under § 32-5A-191(h).
For the reasons discussed below, we hold that they do not, and
we reverse the judgment of the Court of Criminal Appeals.
I. Facts and Procedural History
On March 22, 2005, a police officer for the City of
Decatur arrested Arthur Felton Holbert for DUI, for violating
Decatur's open-container ordinance, and for carrying a pistol
without a permit. As to the DUI offense, the Morgan County
1
grand jury indicted Holbert for felony DUI, a violation of §
32-5A-191(a)(2) and (h), based on numerous
prior DUI
convictions. Section 32-5A-191 provides, in pertinent part:
"(a) A person shall not drive or be in actual
physical control of any vehicle while:
1070456
3
"....
"(2) Under the influence of alcohol;
"....
"(e) Upon first conviction, a person violating
this section shall be punished by [stating the
penalty].
"(f) On a second conviction within a five-year
period, a person convicted of violating this section
shall be punished by [stating the penalty].
"(g) On a third conviction, a person convicted
of violating this section shall be punished by
[stating the penalty].
"(h) On a fourth or subsequent conviction, a
person convicted of violating this section shall be
guilty of a Class C felony and punished by [stating
the penalty]."
(Emphasis added.)
Before Holbert's trial, the State proffered court records
showing that Holbert had had four prior DUI convictions.
These records reflected a 1981 DUI conviction in the Cullman
County District Court, a 1982 DUI conviction in the Hillsboro
Municipal Court, a 1994 DUI conviction in the Morgan County
District Court, and a 1994 DUI conviction in the Decatur
Municipal Court. Holbert orally moved to dismiss the
indictment because, he said, his prior DUI convictions in
municipal courts cannot be counted toward the total number of
1070456
4
prior DUI convictions necessary to enhance his current DUI
offense to a felony DUI offense as defined by § 32-5A-191(h).
Holbert specifically argued that in Ex parte Bertram, 884 So.
2d 889 (Ala. 2003), this Court held that only convictions
under § 32-5A-191 count toward the number of prior convictions
necessary to elevate a DUI offense to a felony offense under
§ 32-5A-191(h). Thus, Holbert argued that his prior municipal
convictions do not count as prior DUI convictions for the
purpose of enhancement under § 32-5A-191(h) because, he said,
a municipal DUI conviction is a violation of a municipal
ordinance and not a violation of § 32-5A-191. The trial court
denied Holbert's motion to dismiss.
A jury returned a guilty verdict on the felony DUI
charge, and the trial court sentenced Holbert to five years'
imprisonment. The trial court then split the sentence and
ordered Holbert to serve 18 months in prison followed by a 5-
year probationary period. See § 15-18-8, Ala. Code 1975.
Holbert then appealed to the Court of Criminal Appeals,
arguing that the trial court improperly denied his motion to
dismiss the indictment and allowed the State to use his prior
municipal DUI convictions to elevate his DUI charge to a
1070456
5
felony offense under § 32-5A-191(h). Holbert contended in the
Court of Criminal Appeals, as he did in the trial court, that
pursuant to Ex parte Bertram, a municipal DUI conviction is
not a conviction under § 32-5A-191 that can elevate a DUI
offense to a felony offense as defined by § 32-5A-191(h).
The Court of Criminal Appeals affirmed the judgment of
the trial court, without an opinion. Holbert v. State (No.
CR-06-1574, Oct. 26, 2007), __ So. 2d __ (Ala. Crim. App.
2007) (table). In an unpublished memorandum, that court first
noted that Ex parte Bertram addressed only out-of-state DUI
convictions and not municipal DUI convictions. The Court of
Criminal Appeals then noted that, before this Court decided
Ex parte Bertram, the Court of Criminal Appeals had addressed
the relationship between municipal DUI convictions and § 32-
5A-191(h) in McDuffie v. State, 712 So. 2d 1118, 1120 (Ala.
Crim. App. 1997). The Court of Criminal Appeals quoted from
McDuffie as follows in its memorandum:
"'The appellant further contends that the state
should not have been allowed to introduce into
evidence two of his prior D.U.I. convictions
because,
he
says,
they
were
convictions
for
violating
a
municipal
ordinance,
rather
than
convictions for violating § 32-5A-191, Code of
Alabama 1975. He argues (1) that the language of §
32-5A-191(h) "refers to three prior violations of
1070456
In 2006 the legislature added § 32-5A-191(o), which
2
provides:
6
that provision as being a pre-requisite to being
guilty of felony-DUI" (appellant's brief, p. 8); and
(2) that the provisions of a municipal ordinance
might not be the same as those in the state statute
and[,] thus, the use of any municipal convictions as
any of the three prior convictions required by §
32-5A-191(h) would deprive him of proper notice of
the charge he was being called upon to defend. We
find no merit in these assertions.
"'Our examination of § 32-5A-191(h) reveals no
language
requiring that the prior convictions
required for that section to be applicable be
obtained under § 32-5A-191, as the appellant
contends.'"
(Quoting 712 So. 2d at 1120.) The Court of Criminal Appeals
then concluded: "Because Ex parte Bertram held only that out-
of-state DUI convictions do not qualify as prior convictions
under Alabama law, it is distinguishable from McDuffie.
Therefore, [Holbert's] argument is without merit."
Holbert petitioned this Court for certiorari review of
the Court of Criminal Appeals' decision. We granted
certiorari review to consider, as a material question of first
impression, whether a prior in-state DUI conviction in a
municipal court can be counted toward the total number of
prior DUI convictions necessary to constitute a felony DUI
offense as defined in § 32-5A-191(h).2
1070456
"A prior conviction within a five-year period for
driving under the influence of alcohol or drugs from
this state, a municipality within this state, or
another state or territory or a municipality of
another state or territory shall be considered by a
court for imposing a sentence pursuant to this
section."
(Emphasis added.) However, § 32-5A-191(o) is not applicable
here because it became effective after the commission of the
offense that led to Holbert's indictment for felony DUI.
7
II. Standard of Review
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)).
III. Analysis
Holbert contends that the Court of Criminal Appeals erred
in concluding that the trial court had properly denied his
motion to dismiss the indictment, holding that a DUI
conviction in a municipal court counts toward the total number
of prior DUI convictions necessary to constitute a felony DUI
offense under § 32-5A-191(h). Holbert asserts that under the
plain language of § 32-5A-191(h) only prior DUI convictions
for violating § 32-5A-191 can be counted toward those
necessary to elevate a DUI conviction to a felony. Holbert
1070456
8
contends that his prior DUI convictions in various municipal
courts are not violations of § 32-5A-191; rather, he argues,
they are violations of municipal ordinances and therefore do
not count toward the number of prior convictions necessary to
constitute a felony DUI offense under § 32-5A-191(h). Holbert
acknowledges that in McDuffie the Court of Criminal Appeals
held that its "examination of § 32-5A-191(h) reveal[ed] no
language requiring that the prior convictions required for
that section to be applicable be obtained under § 32-5A-191."
712 So. 2d at 1120. However, Holbert then notes that five
years after the Court of Criminal Appeals decided McDuffie,
this Court decided Ex parte Bertram, which, Holbert argues,
held that the plain language of § 32-5A-191(h) requires that
prior convictions that elevate a DUI offense to a felony
offense must be convictions for violations of § 32-5A-191.
In Ex parte Bertram, this Court granted certiorari review
to address the issue "whether Subsection (h) of Section
32-5A-191 means for prior out-of-state convictions for driving
under the influence of alcohol to count toward the total of
convictions necessary to constitute the felony defined by that
subsection." 884 So. 2d at 890. This Court first noted well-
1070456
9
established
rules
of
statutory
construction
such
as
"'"[s]tatutes creating crimes are to be strictly construed in
favor of the accused; they may not be held to apply to cases
not covered by the words used."'" Ex parte Bertram, 884 So. 2d
at 891 (quoting Ex parte Jackson, 614 So. 2d 405, 406 (Ala.
1993), quoting in turn United States v. Resnick, 299 U.S. 207,
209 (1936)). This Court also noted that "'[o]ne who commits
an act which does not come within the words of a criminal
statute, according to the general and popular understanding of
those words, when they are not used technically, is not to be
punished thereunder, merely because the act may contravene the
policy of the statute.'" Ex parte Bertram, 884 So. 2d at 891
(quoting Clements v. State, 370 So. 2d 723, 725 (Ala. 1979),
citing in turn Fuller v. State, 257 Ala. 502, 505, 60 So. 2d
202 (1952)).
This Court then held:
"We read Section 32-5A-191 according to these
traditional,
well-settled
rules
of
statutory
construction. At the very least in favor of the
defendant
before
us,
an
eminently
reasonable
construction of this section is that the word
conviction
means conviction of violating this
section everywhere the word conviction appears
within the section, including where the word
conviction appears in Subsection (h) defining the
felony. Such a construction would require that
1070456
10
Subsection (h) be read to mean 'On a fourth or
subsequent conviction [of violating this section],
a person convicted of violating this section shall
be guilty of a Class C felony and punished by
[stating the penalty].' The rules of statutory
construction we have quoted require us to adopt this
construction rather than the construction urged by
the State to the effect that 'On a fourth or
subsequent
conviction
[of
violating
any
driving-under-the-influence statute of any state],
a person convicted of violating this section shall
be guilty of a Class C felony and punished by
[stating the penalty].' The construction urged by
the
State
contains an internal inconsistency,
extends the purview of the statute beyond its
express text, and construes any ambiguity against
the defendant and in favor of the State, all
contrary to the traditional, well-settled rules of
statutory construction."
Ex parte Bertram, 884 So. 2d at 892.
Holbert contends that, consistent with the rationale of
Ex parte Bertram, § 32-5A-191(h) cannot be interpreted to
include DUI convictions from a municipal court because such
convictions are not convictions for violations of § 32-5A-191.
The State contends that Holbert's arguments are without
merit because, it argues, the Court of Criminal Appeals'
decision in McDuffie has not been overruled or abrogated. The
State also asserts that municipal DUI convictions count as
prior DUI convictions under § 32-5A-191(h) because § 32-5A-
191(h) does not expressly preclude consideration of prior
1070456
11
municipal convictions. The State then notes that after this
Court issued its decision in Ex parte Bertram, the Court of
Criminal Appeals decided Hoover v. State (No. CR-04-0159, June
10, 2005), 926 So. 2d 1082 (Ala. Crim. App. 2005) (table),
holding in an unpublished memorandum that municipal DUI
convictions count toward the number of prior DUI convictions
necessary to constitute the felony offense of DUI as defined
in § 32-5A-191(h). This Court granted certiorari review of
the Court of Criminal Appeals' decision in Hoover and then
quashed the writ as improvidently granted. See Ex parte
Hoover, 928 So. 2d 278 (Ala. 2005). Justice Stuart dissented
from this Court's decision to quash the writ, and the State
contends that we should now adopt the reasoning of her
dissent.
In her dissent, Justice Stuart stated, in pertinent part:
"I agree with the Court of Criminal Appeals that
the holding in Ex parte Bertram should not be read
to preclude a violation of a municipal ordinance for
driving under the influence of alcohol from counting
toward the felony of driving under the influence
defined in § 32-5A-191(h). I dissented in Ex parte
Bertram because I believe that the majority's
holding that the definition of the word 'conviction'
as used in § 32-5A-191(h), Ala. Code 1975, to mean
only a conviction for violating § 32-5A-191 is too
limiting. To me the word 'conviction' as used in §
32-5A-191 means any conviction for driving under the
1070456
The State erroneously refers to McDuffie and Hoover as
3
decisions of this Court. We assume that error to have arisen
from the State's failure to revise the brief filed before the
Court of Criminal Appeals before submitting its brief to this
Court as opposed to ignorance of the correct court from which
12
influence of alcohol, regardless of whether the
conviction is for a violation of § 32-5A-191(a) or
for a violation of a municipal ordinance or another
jurisdiction's statute prohibiting driving under the
influence of alcohol or a controlled substance,
provided that the underlying conduct would have
constituted a conviction for driving under the
influence of alcohol or a controlled substance under
§ 32-5A-191(a), Ala. Code 1975.
"Here, the decision of the Court of Criminal
Appeals properly limited the application of this
Court's holding in Ex parte Bertram. Because I
maintain that this Court needs to revisit its
holding in Ex parte Bertram and redefine the word
'conviction' to include any conviction for driving
under the influence of alcohol that satisfies §
32-5A-191(a), Ala. Code 1975, I would have affirmed
the judgment of the Court of Criminal Appeals and
overruled this Court's holding in Ex parte Bertram.
Thus, I respectfully dissent from the majority's
decision to quash the writ."
Ex parte Hoover, 928 So. 2d at 280.
In sum, the State contends that the Court of Criminal
Appeals properly upheld the trial court's use of Holbert's
municipal convictions to elevate Holbert's DUI offense to a
felony under § 32-5A-191(h) because, it says, McDuffie and
Hoover hold that municipal DUI convictions can be used to
enhance a subsequent DUI offense.3
1070456
these decisions emanated. We have treated the State's
contentions before us in a manner consistent with this
assumption.
It is not necessary for us to overrule the Court of
4
Criminal Appeals' decision in Hoover because that decision has
no precedential value. See Rule 54(d), Ala. R. App. P.
13
Under this Court's holding in Ex parte Bertram that § 32-
5A-191(h) should be read as stating "'On a fourth or
subsequent conviction [of violating this section], a person
convicted of violating this section shall be guilty of a Class
C felony and punished by [stating the penalty],'" 884 So. 2d
at 892, we must conclude that, independent of § 32-5A-191(o),
a DUI conviction in a municipal court does not count toward
the total number of prior convictions necessary to constitute
a felony DUI offense as defined in subsection (h) because a
municipal DUI conviction is not a conviction for violating §
32-5A-191 but merely a conviction for violating a municipal
ordinance. Thus, we decline the State's invitation to
overrule Ex parte Bertram, and we expressly overrule McDuffie,
a decision of the Court of Criminal Appeals, to the extent
that it is inconsistent with this holding. As this Court
4
held in Ex parte Bertram, the well-established rule of
statutory construction stating that "'[n]o person is to be
1070456
Justice Stuart's dissent relies upon the language of §
5
32-5A-191(k) and portions of the Alabama Driver License
Compact Act, § 32-6-30 et seq., Ala. Code 1975, to conclude
that restricting the definition of the term "conviction" as
used in § 32-5A-191(h) to a "conviction for violating this
section" is too narrow. The dissent states: "[A] reading of
the entire statute indicates that the legislature, when
drafting this statute, considered several types of convictions
for driving under the influence of alcohol or a controlled
substance, in addition to convictions for violations of 'this
section.'" __ So. 2d at __. The plain language of § 32-5A-
191(h) limits the definition of the term "conviction" to a
"conviction
for
violating
this
section"
and,
if
the
legislature had intended the expansive reading urged by the
dissent, embracing other sections of the Code, it could have
very easily so stated. Further, the dissent would have us
look to § 32-5A-191(k) and § 32-6-30 et seq. to construe §
32-5A-191(h) in favor of the State. As this Court noted in Ex
parte Bertram: "'[T]he fundamental rule [is] that criminal
statutes are construed strictly against the State. See Ex
parte Jackson, 614 So. 2d 405 (Ala. 1993).' Ex parte Hyde, 778
So. 2d 237, 239 n. 2 (Ala. 2000)." 884 So. 2d at 892.
14
made subject to penal statutes by implication and all doubts
concerning their interpretation are to predominate in favor of
the accused,'" 884 So. 2d at 891 (quoting Clements, 370 So. 2d
at 725), requires that § 32-5A-191(h) be read to mean that
only convictions under § 32-5A-191 can be counted toward the
total number of convictions needed to constitute felony DUI
under § 32-5A-191(h). Clements, 370 So. 2d at 725.
5
We recognize that many municipal DUI ordinances have
adopted the language of § 32-5A-191. However, an individual
convicted of violating a municipal ordinance has not been
1070456
Section 11-45-9(b), Ala. Code 1975, sets out the
6
penalties that may be imposed for violating municipal
ordinances and resolutions:
"No fine shall exceed $500.00, and no sentence of
imprisonment or hard labor shall exceed six months
except, when in the enforcement of the penalties
prescribed in section 32-5A-191, such fine shall not
exceed $5,000.00 and such sentence of imprisonment
or hard labor shall not exceed one year."
15
convicted of violating § 32-5A-191 merely because the
ordinance adopted the language of § 32-5A-191. We note that
the Court of Criminal Appeals recently and correctly held
that, although a municipal DUI ordinance may have adopted the
language of § 32-5A-191, the municipal ordinance and § 32-5A-
191 set out separate offenses. See City of Decatur v.
Lindsey, [Ms. CR-06-0806, June 29, 2007] __ So. 2d __, __
(Ala. Crim. App. 2007), writ quashed Ex parte Lindsey, [Ms.
1061673, Feb. 15, 2008] __ So. 2d __ (Ala. 2008). In Lindsey,
the Court of Criminal Appeals held:
"[W]e note that the penalty provisions set forth in
§§ 32-5A-191 and 11-45-9(b),
Ala. Code 1975,
[6]
address different subjects. Section 32-5A-191(e),
Ala. Code 1975, governs the fines and sentences that
may be imposed for the State offense of DUI.
Section 11-45-9(b), Ala. Code 1975, governs the
fines and sentences that may be imposed for the
municipal offense of DUI."
__ So. 2d at __ (emphasis added).
1070456
16
Based on the foregoing analysis, we conclude that the
trial court erred in counting Holbert's prior municipal
convictions toward the total number of convictions necessary
to constitute the felony offense of DUI under § 32-5A-191(h),
and the Court of Criminal Appeals erred in affirming Holbert's
conviction for felony DUI.
IV. Conclusion
The judgment of the Court of Criminal Appeals is
reversed, and the cause is remanded to that court for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Woodall, Smith, Bolin, and Murdock, JJ.,
concur.
See, Stuart, and Parker, JJ., dissent.
1070456
17
STUART, Justice (dissenting).
I respectfully dissent from the majority's refusal to
overrule Ex parte Bertram, 884 So. 2d 889 (Ala. 2003), and its
decision to reverse the judgment of the Court of Criminal
Appeals. The majority holds:
"Under this Court's holding in Ex parte Bertram
that 32-5A-191(h) should be read as stating '"On a
fourth or subsequent conviction [of violating this
section], a person convicted of violating this
section shall be guilty of a Class C felony and
punished by [stating the penalty],"' 884 So. 2d at
892, we must conclude that, independent of § 32-5A-
191(o), a DUI conviction in a municipal court does
not
count
toward
the
total
number
of
prior
convictions necessary to constitute a felony DUI
offense as defined in subsection (h) because a
municipal DUI conviction is not a conviction for
violating § 32-5A-191 but merely a conviction for
violating a municipal ordinance."
___ So. 2d at ___.
As I stated in my dissents in Ex parte Bertram and Ex
parte Hoover, 928 So. 2d 278 (Ala. 2005), this Court's
definition of the term "conviction" as used in § 32-5A-191(h)
to mean "conviction of violating this section" is too
limiting. This narrow definition finds no basis in the
statute, as a reading of the entire statute indicates that the
legislature, when drafting this statute, considered several
types of convictions for driving under the influence of
1070456
18
alcohol or a controlled substance, in addition to convictions
for violations of "this section." For example, the
legislature in § 32-5A-191(k) provided for fines collected for
"violations of this section charged pursuant to a municipal
ordinance."
Additionally,
the
legislature
considered
"generic" driving-under-the-influence-of-alcohol convictions
in § 32-5A-191(p) when it provided that the motor-vehicle
registration of a repeat driving-under-the-influence-of-
alcohol offender, whose offenses result from various "generic"
driving-under-the-influence-of-alcohol convictions, shall be
suspended.
Furthermore, I note that when the legislature enacted the
Alabama Driver License Compact Act, codified at § 32-6-30 et
seq., Ala. Code 1975, it established a definition for
"conviction" with regard to driving offenses, stating:
"(c) 'Conviction' means a conviction of any
offense related to the use or operation of a motor
vehicle which is prohibited by state law, municipal
ordinance or administrative rule or regulation, or
a forfeiture of bail, bond or other security
deposited to secure appearance by a person charged
with having committed any such offense and which
conviction or forfeiture is required to be reported
to the licensing authority."
1070456
19
Article II, § 32-6-31, Ala. Code 1975. The legislature
further established the effect of a conviction under that Act,
stating:
"a) The licensing authority in the home state,
for the purpose of suspension, revocation or
limitation of the license to operate a motor
vehicle, shall give the same effect to the conduct
reported, pursuant to article III of this compact,
as it would if such conduct had occurred in the home
state, in the case of conviction for:
"....
"(2) Driving a motor vehicle while
under the influence of intoxicating liquor
or a narcotic drug, or under the influence
of any other drug to a degree which renders
the driver incapable of safely driving a
motor vehicle."
Article IV, § 32-6-31, Ala. Code 1975. Thus, the legislature
has provided in terms of driving offenses a definition of
"conviction" that is much broader than the definition given
that term by this Court in Ex parte Bertram. Clearly, the
legislature, by the language it used in § 32-5A-191(k), § 32-
5A-191(p), and § 32-6-31, Ala. Code 1975, intended that the
term "conviction" as used in § 32-5A-191(e)-(h) –- the
sentence-enhancement statutes addressing repeated convictions
for driving under the influence of alcohol or a controlled
1070456
20
substance –- means a conviction for conduct constituting a
violation of § 32-5A-191(a), Ala. Code 1975.
In light of the foregoing, I would overrule Ex parte
Bertram, and I would affirm the judgment of the Court of
Criminal Appeals, holding that a conviction under a municipal
ordinance for conduct constituting a violation of § 32-5A-
191(a), Ala. Code 1975, can be counted toward the total
convictions necessary to constitute the felony defined by §
32-5A-191(h), Ala. Code 1975. Therefore, I dissent.
See and Parker, JJ., concur. | July 11, 2008 |
4c3d6c5f-7df0-47ce-81e8-6b3db1068bdf | Ex parte David W. Dyess. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Kristi S. Dyess Cheek v. David W. Dyess) | N/A | 1070286 | Alabama | Alabama Supreme Court | REL: 06/20/2008
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, 2007-2008
____________________
1070286
____________________
Ex parte David W. Dyess
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Kristi S. Dyess Cheek
v.
David W. Dyess)
(Montgomery Circuit Court, DR-01-1502.03;
Court of Civil Appeals, 2060124)
STUART, Justice.
The petition for the writ of certiorari is quashed.
1070286
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.
Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin,
Parker, and Murdock, JJ., concur. | June 20, 2008 |
055cbd72-5665-4dc6-af17-5e99edbfdf03 | Patricia J. Holt, Charles Holt, and Cori Nicole Howard, a minor, by her grandmother andnext friend Patricia J. Holt v. Lauderdale County | N/A | 1050740 | 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
____________________
1050740
____________________
Patricia J. Holt, Charles Holt, and Cori Nicole Howard, a
minor, by her grandmother and next friend Patricia J. Holt
v.
Lauderdale County
Appeal from Lauderdale Circuit Court
(CV-03-17)
PARKER, Justice.
Case History
The genesis of this case is a motor-vehicle accident that
occurred on county road 88 in Lauderdale County. On January
11, 2003, Patricia J. Holt and Cori Nicole Howard, Holt's
granddaughter, were traveling to Lexington Elementary School
1050740
2
in a vehicle that Holt was driving. To get to the school they
had to travel across a narrow bridge over a creek bed. Before
arriving at the bridge, Holt's vehicle crested a hill, entered
an "S" curve, which turned to the left and then to the right.
As Holt approached the bridge, her car began to slide,
apparently on ice, and she lost control of the vehicle. The
vehicle hit the end of a concrete barrier on the side of the
bridge, overturned, and landed upside down in the creek bed 10
feet below. Paramedics took Holt and Howard to the hospital.
Howard was treated and released; however, Holt remained in the
hospital for approximately 25 days.
This case originated in the Lauderdale Circuit Court
where Holt, her husband Charles Holt, and Howard, a minor, by
her grandmother and next friend Patricia J. Holt (hereinafter
referred to collectively as "Holt") sued Lauderdale County and
the county engineer, Ken Allamel, alleging negligence in that
they breached their duty to maintain county roads in a safe
manner, under both Ala. Code 1975, § 23-1-80, and the common
law. Specifically, they contend that a guardrail, extending
from the edge of the concrete barrier on the bridge, should
have been erected and that such a guardrail would have
1050740
3
prevented her vehicle from dropping into the creek bed. Both
defendants filed motions for a summary judgment. On February
10, 2005, the trial court, with Holt's consent, granted
Allamel's summary-judgment motion. On January 31, 2006, the
trial court entered a summary judgment for Lauderdale County.
On March 7, 2006, Holt filed a notice of appeal from the
summary judgment for Lauderdale County. We reverse and remand.
Standard of Review
On appeal, this Court reviews a summary judgment de novo,
applying the same standard of review as did the trial court.
Hornsby v. Session, 703 So. 2d 932 (Ala. 1997). To defeat a
summary judgment, the nonmoving party must show substantial
evidence creating a genuine issue of material fact. Ex parte
General Motors Corp., 769 So. 2d 903 (Ala. 1999). "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." Hobson v.
American Cast Iron Pipe Co., 690 So. 2d 341, 344 (Ala. 1977).
In a negligence action, the plaintiff must show that a duty
existed, that the defendant breached the duty, and that the
breach caused the plaintiff's injury. See Bowden v. E. Ray
1050740
4
Watson Co., 587 So. 2d 944 (Ala. 1991); Thompson v. Lee, 439
So. 2d 113 (Ala. 1983). Lauderdale County contends that Holt
has failed to meet her burden as to duty, breach, and
causation.
Legal Analysis
A. Duty
"A county, by virtue of its exclusive authority to
maintain and control its roads, is under a common law duty to
keep its roads in repair and in reasonably safe condition for
their intended use." Mixon v. Houston County, 598 So. 2d 1317,
1318 (Ala. 1992). A county also has a statutory obligation to
maintain the safety of its roadways. Section 23-1-80, Ala.
Code 1975, provides that a county has "general superintendence
of the public roads ... so as to render travel over the same
as safe and convenient as practicable."
Lauderdale County attempts to limit its general duty,
stating that there is "no authority ... that a county has a
legal duty to install guardrails or other devices." Lauderdale
County's brief at 13. Lauderdale County also contends that no
duty exists because at the time the bridge was built the
bridge was in compliance with all safety regulations then in
1050740
5
effect. Id.
Lauderdale County appears to be arguing that in order to
have a duty to perform a specific renovation to a county road,
there must be some statutory authority requiring it to do so.
However, Lauderdale County cites no Alabama caselaw that
suggests such a rule. It relies instead on a Kansas decision
that refers to a line of cases, based upon a since-repealed
statute, that held that "failure to place (or replace) a
guardrail ... does not constitute a defect unless there is a
statutory duty to erect such a ... guardrail." Schmeck v. City
of Shawnee, 232 Kan. 11, 23, 651 P.2d 585, 595 (1982). Alabama
does not have the same statutory scheme as did Kansas when
Schmeck was decided. To the contrary, this Court has
recognized that a county's duty may require it to do more than
is even required by a manual issued by the Sate and regulating
roadways. In Jefferson County v. Sulzby, 468 So. 2d 112, 114
(Ala. 1985), this Court, affirming a judgment against
Jefferson County in an action arising out of a one-vehicle
accident, said: "Claiming that because the Alabama Manual of
Uniform Control Devices (AMUTCD) does not require edge-of-
pavement markings or curve warning signs at the accident site,
1050740
6
the County contends that it was under no duty, statutory or
otherwise, to install such devices. We disagree."
In Springer v. Jefferson County, 595 So. 2d 1381 (Ala.
1992), Jefferson County was sued for negligently failing to
erect a guardrail on an allegedly unsafe stretch of road. This
Court proceeded on the assumption that if Springer presented
substantial evidence indicating that Jefferson County had
negligently acted or failed to act and that a guardrail would
have prevented the injury, then a summary judgment against
Springer was inappropriate. 595 So. 2d at 1384. There was no
mention as to whether the guardrail was specifically required
by statute, but the analysis proceeded under a county's
general duty to keep its roads safe. Clearly, under applicable
Alabama law, the lack of explicit statutory obligation does
not automatically eliminate a county's general statutory and
common-law duty to maintain safe roadways.
Lauderdale County also cites no Alabama law for the
proposition that the appropriate standard for bridge and
guardrail
construction
and
safety
are
the
standards
applicable at the time of construction of the bridge and not
at the time of the accident. Alabama law clearly describes a
1050740
7
county's duty to "'keep its roads in a reasonably safe
condition.'" Mixon, 598 So. 2d at 1318 (quoting Elmore County
Comm'n v. Ragona, 540 So. 2d 720, 724 (Ala. 1989))(emphasis
added). None of the limitations of that duty Lauderdale County
proposes are sufficient to defeat its general statutory and
common-law duty to keep its roadways in a reasonably safe
condition. Thus, it is clear that Lauderdale County had a duty
to keep the bridge and the roadway approaching it in a
reasonably safe condition.
B. Breach of Duty
Once a duty is established, the question then becomes
whether that duty was breached. A county's "standard of care
is to keep its streets in a reasonably safe condition for
travel, and to remedy defects in the roadway upon receipt of
notice." Sulzby, 468 So. 2d at 114. Constructive notice of a
defect, however, is enough to support an action based on a
breach of duty. Tuscaloosa County v. Barnett, 562 So. 2d 166,
168 (Ala. 1990).
Lauderdale County alleges that there was no evidence
presented indicating that there was a defect in the roadway.
Lauderdale County's brief at 11. However, Holt's expert, in
1050740
8
his deposition, noted the speed limit on the road on which the
accident occurred, the narrowness of the paved area on the
bridge, the raw end of the bridge-barrier rail, and the
steepness of the slope to the creek below and concluded that
"any of those four factors by themselves would warrant a
guardrail, but all four of them combined just almost makes it
a necessity."
Lauderdale County appears to contend that the lack of a
guardrail cannot be considered a defect in the roadway.
Lauderdale County's brief at 11. A county could breach its
duty by failing to erect a guardrail. Springer, 595 So. 2d at
1386 ( Houston, J., concurring in the result). This Court has
stated: "The duty [to keep streets safe for travel] extends
the entire width of the street and one injured by a defect or
obstruction outside the prepared part may still be entitled to
recover, if the defect is so near the traveled part as to
render its use unsafe." Jacks v. City of Birmingham, 268 Ala.
138, 143, 105 So. 2d 121, 126 (1958).
Lauderdale County contends that, even if the lack of a
guardrail can be considered a defect, it had no notice of the
alleged defect. Lauderdale County's brief at 11. However, as
1050740
9
previously noted, notice can be constructive. Barnett, 562 So.
2d at 168. Lauderdale County clearly has maintained control of
the bridge since its construction in 1937. Further, Holt's
expert,
Dr.
Deatherage,
testified
that
"safety
and
construction standards such as the Roadside Design Guide
require the construction of guardrails at points such as the
place where this accident occurred." Holt's brief at 6. There
is a genuine issue of material fact as to whether Lauderdale
County was put on constructive notice that the approach to the
bridge was not reasonably safe.
Lauderdale County states that "there is no accident data
that would indicate that guardrails should be placed extending
back from the end of that bridge," and it uses the lack of
such accident data to support its argument that it had no
constructive notice of any defect in the bridge or the
approach to the bridge. Lauderdale County's brief at 5.
However, the record reveals that there was no accident data
available because Lauderdale County did not release the data.
In response to the question, "Are you aware of any accident
data that would indicate that guardrails should be placed at
this place that we see on exhibit 1," county engineer Allamel
1050740
Exhibit 1 is mentioned in a partial transcript from
1
Allamel's deposition that was attached to Lauderdale County's
motion for a summary judgment. The available portion of the
transcript does not say what the exhibit is.
10
responded with a simple "no." The transcript of Allamel's
1
deposition reveals, however, that he was instructed not to
disclose any accident data during the deposition, for fear
that the State of Alabama would revoke Lauderdale County's
privilege of reviewing accident data in the future. Holt's
expert testified that "the physical evidence would indicate
that there have been other impacts at this sight [sic]." But
the absence of other accident reports in the record does not
offset the testimony of Holt's expert witness as to the road
conditions at the scene of the accident and the existence of
those conditions over time, which creates an issue of fact as
to whether Lauderdale County had constructive knowledge of
this alleged defect. Funera v. Jefferson County, 727 So. 2d
818, 822 (Ala. Civ. App. 1998).
C. Causation
Lauderdale County also contends that Holt failed to show
by substantial evidence that negligence on its part was the
cause of her injury. In fact, Lauderdale County states that
"the absence of guardrails extending back from the end of the
1050740
11
bridge was not the proximate cause of the accident."
Lauderdale County's brief at 15. Lauderdale County relies on
Jones v. General Motors Corp., 557 So. 2d 1259 (Ala. 1990),
and implies that Holt's failure to establish why her vehicle
left the road makes her claim the "'product of pure
supposition, conjecture and guesswork.'" Jones, 557 So. 2d at
1265 (quoting trial court's order). Lauderdale County's
reliance on Jones, however, is misplaced. The above-quoted
text is from the trial court's order. Neither in Jones nor
subsequently has this Court endorsed the trial court's
rationale. "In Jones, this Court equivocated –- saying that
'we do not necessarily agree with the trial court's "proximate
cause" rationale' set out in the trial court's judgment.
Jones, 557 So. 2d at 1265." Peters v. Calhoun County Comm'n,
669 So. 2d 847, 851 (Ala. 1995). Accord Ward v. Morgan County,
769 So. 2d 884, 888 (Ala. 2000). In Peters, basically in
response to the very same argument presented here, this Court
held, in part:
"We find that the circuit court erred in basing the
summary
judgment
upon
this
ground
[that
the
unreasonable condition of the roadway was the cause
of the accident], because Mr. Peters readily
concedes that he does not know why his tires dropped
off onto the road shoulder and because Mr. Peters's
1050740
12
theory of the Commission's liability in this case is
not based upon the Commission's having proximately
caused his tires to leave the pavement. Mr Peters
seeks to prove, through expert testimony of an
accident reconstructionist, that the Commission's
alleged negligent failure to perform necessary
shoulder work prevented him, after leaving the road
surface for whatever reason, from safely steering
back onto Coldwater Road."
669 So. 2d at 850. Similarly, in Ward, this Court held:
"Under the facts of this case, reasonable
persons could disagree as to whether it was
foreseeable that injury or death could result from
Morgan County's failure to repair the shoulder
drop-off on Indian Hills Road or to warn of the
drop-off level that existed after the resurfacing.
The trial court stated in Morgan County's summary
judgment that it was not foreseeable that any part
of Anthony Ward's vehicle would leave the paved
portion of the road in an area where the roadway was
straight
and
during
daylight
hours.
This
is
tantamount to concluding that it is unforeseeable
that a driver will leave the road in an attempt to
avoid an object, to avoid a collision with another
vehicle, or as a result of simple inadvertence--all
of these things, in fact, can happen on a straight
road during daylight hours. Why Anthony Ward's
vehicle left the road is not the central issue in
this case, given the fact that the complaint alleges
that his death occurred because the low shoulder
drop-off prevented him from being able to return to
the road safely. Moreover, the county's own engineer
testified that it was 'a known fact' that vehicles
leave the road for various reasons.
"Ward presented substantial evidence from which
a jury could conclude that the county knew or should
have known that a member of the motoring public
might experience difficulty returning a vehicle to
1050740
13
the paved portion of Indian Hills Road and might as
a
result
of
that
difficulty,
caused
by
an
unreasonably dangerous shoulder-drop-off level or
caused by a failure to warn motorists of that
danger, be involved in an accident."
769 So. 2d at 888-89.
Holt is not arguing here that any negligence on
Lauderdale County's part caused her vehicle to leave the road;
instead, she is arguing that Lauderdale County negligently
maintained the approach to the bridge by failing to install
guardrails. It is this failure, she alleges, that caused her
vehicle to roll over into the creek. She maintains, through
an expert witness, that had the guardrails been there, her
vehicle would have been deflected back toward the road and
would not have gone off the bridge into the creek. Holt's
brief at 6. Her proof for this claim goes beyond "mere
conclusory allegations." Brown v. St. Vincent's Hosp., 899 So.
2d 227, 238 (Ala. 2004). Her expert stated that, had a
guardrail been in place, Holt's vehicle would have "been
deflected back into County Road 88, or spun around to where
she would have basically been protected sideways from going
off the edge of the bridge," and he opined that "had those
guardrails been in place at the ... bridge, ... the accident
1050740
14
would have been much less severe."
A defendant will not usually be liable for harm that is
unforeseeable, even when it is proven that the defendant
breached a duty. Thetford v. City of Clanton, 605 So. 2d 835,
840 (Ala. 1992). The Peters Court stated that "a jury should
decide whether Mr. Peters's leaving the road, under the
circumstances, was so far outside the bounds of reasonable
driving as to be unforeseeable by the Commission." 669 So. 2d
at 850. Applying this same test to the facts here, we conclude
that a genuine issue of material fact exists regarding the
foreseeability of the vehicle's leaving the road under the
circumstances. The hill and the curves approaching the bridge,
the narrow bridge, and the possible ice on the roadway are all
pertinent facts that could allow a juror to find that it is
reasonable for Lauderdale County to foresee that a vehicle
might leave the paved portion of the road.
Conclusion
The trial court's ruling was in error. In this case,
there were genuine issues of material facts, and those issues
should have been presented to a jury for its decision. The
summary judgment is reversed, and the case is remanded for
1050740
15
further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Woodall, Smith, and Murdock, JJ., concur.
See, Lyons, Stuart, and Bolin, JJ., concur in the result. | November 7, 2008 |
244bff01-3fff-4e58-a9ee-f124b271a2ad | Ex parte J. C. C. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: J. C. C. v. State of Alabama) | N/A | 1061757 | Alabama | Alabama Supreme Court | REL: 5/23/08
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, 2007-2008
____________________
1061757
____________________
Ex parte J.C.C.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: J.C.C.
v.
State of Alabama)
(Jefferson Juvenile Court, JU-05-54163;
Court of Criminal Appeals, CR-05-1672)
SEE, Justice.
1061757
Rule 52(b), Ala. R. Civ. P., exempts a party from the
1
requirement of making an objection or filing a postjudgment
motion in order to preserve for appeal a sufficiency-of-the-
evidence claim in a nonjury trial in which specific findings
of fact are made.
2
J.C.C., a minor, petitioned this Court for the writ of
certiorari to review a decision of the Court of Criminal
Appeals. The Court of Criminal Appeals held that J.C.C.'s
sufficiency-of-the-evidence claim was not preserved because
the trial court did not enter findings of fact and J.C.C. did
not file a postjudgment motion to preserve his challenge.
This case presents an issue of first impression -- whether a
written stipulation of facts in a juvenile delinquency
adjudication may serve as "findings of fact" for purposes of
Rule 52(b), Ala. R. Civ. P., and thereby preserve for appeal
1
a sufficiency-of-the-evidence claim. We reverse the judgment
of the Court of Criminal Appeals, and we remand the case.
Facts and Procedural History
In December 2005, Officer J. Jones of the Birmingham
Police Department and another witness observed J.C.C. riding
in the front passenger seat of a stolen automobile. After
Officer Jones stopped the vehicle, the driver fled on foot and
was captured and arrested. J.C.C. remained in the vehicle,
1061757
Section 13A-8-16(a) provides:
2
"(a) A person commits the crime of receiving
stolen property if he intentionally receives,
retains or disposes of stolen property knowing that
it has been stolen or having reasonable grounds to
believe it has been stolen, unless the property is
received, retained or disposed of with intent to
restore it to the owner."
In B.B. v. State, 778 So. 2d 258 (Ala. Crim. App. 2000),
3
the Court of Criminal Appeals reversed B.B.'s adjudication of
delinquency based on a charge of receiving stolen property
after B.B. was arrested for being a passenger in a stolen car.
The Court of Criminal Appeals held that, "[i]n this case, the
appellant was not the sole occupant of the vehicle and there
was no evidence that the appellant exercised any degree of
power or dominion over the automobile." 778 So. 2d at 260.
3
was arrested, and was charged, under § 13A-8-16(a), Ala. Code
1975, with receiving stolen property.
2
Before trial, the parties filed a stipulation of facts in
the trial court, and no evidence was entered at J.C.C.'s
delinquency hearing. Based upon the stipulated facts, the
trial court adjudicated J.C.C. delinquent. J.C.C. appealed
the trial court's ruling to the Court of Criminal Appeals,
claiming that the State did not prove a prima facie case of
receiving stolen property. Specifically, J.C.C. alleged that
the State had failed to prove that J.C.C. had control over the
stolen car in which he had been a passenger.3
1061757
4
On June 29, 2007, the Court of Criminal Appeals affirmed
the trial court's judgment in an unpublished memorandum.
J.C.C. v. State (No. CR-05-1672, June 29, 2007). The
memorandum, authored by Judge Welch, stated that "[b]ecause
the [trial] court did not set forth its own written findings
in support of its judgment, J.C.C. was required to file a
postjudgment motion to preserve his challenge to the
sufficiency of the evidence." J.C.C. applied for a rehearing
before the Court of Criminal Appeals. The Court of Criminal
Appeals
denied
J.C.C.'s
application
for
rehearing
but
withdrew
its June 29, 2007, unpublished memorandum, and again affirmed
the judgment of the trial court, this time in an unpublished
memorandum issued per curiam. The substituted memorandum was
identical to the original unpublished memorandum. J.C.C. v.
State (No. CR-05-1672, August 31, 2007), ___ So. 2d ___ (Ala.
Crim. App. 2007). Judge Welch, the author of the June 29,
2007, memorandum, dissented from the per curiam unpublished
memorandum,
stating
that
J.C.C.'s
challenge
to
the
sufficiency
of the evidence had been preserved for review and that the
analysis in B.B. v. State, 778 So. 2d 258 (Ala. Crim. App.
2000), "requires that his conviction be reversed and judgment
1061757
Rule 52(b), Ala. R. Civ. P., provides:
4
"(b) Upon motion of a party filed not later than
thirty (30) days after judgment or entry of findings
and conclusions the court may amend its findings or
make additional findings or may amend the judgment
accordingly. The motion may be made with a motion
for a new trial pursuant to Rule 59. When findings
of fact are made in actions tried by the court
without a jury, the question of the sufficiency of
the evidence to support the findings may thereafter
be raised whether or not the party raising the
question has made in the court an objection to such
findings or has made a motion to amend them or a
motion for judgment or a motion for a new trial."
Rule 1(A), Ala. R. Juv. P., provides, in pertinent part,
that "[if] no procedure is specifically provided in these
rules or by statute, the Alabama Rules of Civil Procedure
shall be applicable to the extent not inconsistent herewith."
5
rendered in his favor." ___ So. 2d at ___ (Welch, J.,
dissenting).
Issue
We granted certiorari review to determine whether a
"stipulation of facts" operates as "findings of fact" under
the language of Rule 52(b), Ala. R. Civ. P., so as to allow a
juvenile appellant to raise the issue of sufficiency of the
4
evidence on appeal when the juvenile did not object to the
sufficiency of the evidence in the trial court or raise that
issue in a postjudgment motion.
1061757
The Committee Comments on 1973 Adoption of Rule 52, Ala.
5
R. Civ. P., further clarify the amendatory purpose of Rule
52(b):
6
Standard of Review
"'"This Court reviews pure questions of law in criminal
cases de novo."'" Ex parte Jett, [Ms. 1060281, July 20, 2007]
___ So. 2d ___, ___ (Ala. 2007) (quoting Ex parte Morrow, 915
So. 2d 539, 541 (Ala. 2004), quoting in turn Ex parte Key, 890
So. 2d 1056, 1059 (Ala. 2003)).
Analysis
J.C.C. argues that the Court of Criminal Appeals'
affirmance of his conviction raises a question of first
impression for this Court. He frames the issue as "whether a
Stipulation of Facts[,] when no other testimony or evidence is
presented, operates as findings of fact under the language of
Rule 52(b), Ala. R. Civ. P., so as to allow an appellant to
raise the issue of sufficiency of the evidence for the first
time on appeal." Petition at 2.
The language of Rule 52(b) suggests that the purpose of
the rule is to allow the parties to move the trial court to
"amend its findings or make additional findings or ... amend
the judgment accordingly."
5
1061757
"Subdivision (b) of Rule 52 seems to provide
adequate safeguards to all parties and to the court
for the amendment of findings after judgment. The
time limit for a motion to accomplish that objective
is 30 days after judgment, which is the time limit
for filing motions for new trial, although motions
for new trial are not prerequisite to appeal if all
grounds for review have already been presented to
the trial court, in a doubtful case it would be good
practice to do so. See 6A Moore's Federal Practice,
¶ 59.14 (2d ed. 1971)."
7
In this case, it is clear that both J.C.C. and the State
were satisfied
with the
stipulated facts
because
neither party
moved, pursuant to Rule 52(b), to amend those facts. The
trial court's adjudication of delinquency in connection with
the criminal charges against J.C.C. implies that the trial
court considered the stipulated facts sufficient to support
its conclusion of law. Therefore, J.C.C. has preserved the
sufficiency-of-the-evidence claim, and the sole issue for
review by the Court of Criminal Appeals is J.C.C.'s claim
"that the State did not prove a prima facie case of receiving
stolen property" because "the State failed to prove that he
had 'control' over the stolen automobile."
The Court of Criminal Appeals rejected J.C.C.'s appeal
and affirmed the trial court's judgment based solely on its
determination that "[b]ecause the court did not set forth its
1061757
See Ex parte Clemons, [Ms. 1041915, May 4, 2007] ___ So.
6
2d ___, ___ (Ala. 2007) ("'[W]hen the facts are undisputed and
an appellate court is presented with pure questions of law,
the court's review in a Rule 32[, Ala. R. Crim. P.,]
proceeding is de novo.'" (quoting Ex parte White, 792 So. 2d
1097, 1098 (Ala. 2001))); Town of Cedar Bluff v. Citizens
Caring for Children, 904 So. 2d 1253, 1255-56 (Ala. 2004)
("'Because no material facts are disputed and this appeal
focuses on the application of the law to the facts, no
presumption of correct[ness] is accorded to the trial court's
judgment. Therefore, we review de novo the application of the
law to the facts of this case.'" (quoting Allstate Ins. Co. v.
Skelton, 675 So. 2d 377, 379 (Ala. 1996))).
8
own written findings in support of its judgment, J.C.C. was
required to file a postjudgment motion to preserve his
challenge to the sufficiency of the evidence. This he did not
do." Although J.C.C.'s appeal is framed by the Court of
Criminal Appeals as a challenge to the sufficiency of the
evidence to support the trial court's findings of fact, we
note that the parties submitted no evidence; instead, the
parties submitted the case on a stipulation of facts. Because
there was no evidence to be weighed in this case, there was no
need for the trial court to make any findings of fact. The
trial court had only to apply the law to the facts as
stipulated by
the
parties;
therefore, J.C.C.'s appeal
does not
implicate Rule 52(b) but presents a pure question of law.6
Conclusion
1061757
9
We hold that J.C.C.'s appeal to the Court of Criminal
Appeals presented a pure question of law rather than a
challenge to the sufficiency of the evidence; therefore, we
reverse the Court of Criminal Appeals' affirmance, which was
based on J.C.C.'s failure to file a postjudgment motion
challenging the sufficiency of the evidence. We remand the
case to the Court of Criminal of Appeals for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur.
Cobb, C.J., recuses herself. | May 23, 2008 |
d5647b55-5e34-41a8-b527-740996f665a7 | Billy Frank Peterson and Jim E. Ellis, Jr. v. City of Abbeville, a municipal corporation | N/A | 1051802 | Alabama | Alabama Supreme Court | Rel:06/20/2008
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, 2007-2008
_________________________
1051802
_________________________
Billy Frank Peterson and Jim E. Ellis, Jr.
v.
City of Abbeville, a municipal corporation
Appeal from Henry Circuit Court
(CV-03-84)
BOLIN, Justice.
The City of Abbeville ("the City") sued Billy Frank
Peterson and Jim E. Ellis, Jr. (collectively referred to as
"the defendants"), on September 19, 2003, alleging that the
defendants had placed a mobile home on certain real property
1051802
2
owned by Peterson in such a way that violated § 91.3A2 of Art.
IX of the Code of Ordinances of the City of Abbeville,
entitled "Special Provisions for Zoning and Subdivision." The
City sought an order requiring the defendants to relocate the
mobile home on the property so as to comply with § 91.3A2.
On October 21, 2003, the defendants filed a motion to
dismiss the complaint against them, alleging that the
complaint failed to state a claim upon which relief could be
granted. See Rule 12(b)(6), Ala. R. Civ. P. The City
responded, and on March 24, 2004, the trial court entered an
order denying the defendants' motion to dismiss.
The defendants answered the complaint on April 28, 2004.
On May 5, 2004, the defendants amended their answer and filed
counterclaims
alleging breach of an agreement, fraud,
negligence and/or wantonness, interference with a contractual
relationship, trespass, defamation, invasion of privacy, and
negligence of the City's agent.
On June 16, 2004, the City moved pursuant to Rule
12(b)(6), Ala. R. Civ. P., to dismiss the counterclaims
against it. On June 29, 2004, the trial court entered an
order denying the City's motion to dismiss the counterclaims.
1051802
We note that an order denying a motion for a summary
1
judgment is an interlocutory order that will not support an
appeal unless certified for a permissive appeal pursuant to
Rule 5, Ala. R. App. P. See Continental Cas. Co. v.
SouthTrust Bank, N.A., 933 So. 2d 337 (Ala. 2006). The
defendants did not seek certification under Rule 5, Ala. R.
App. P.; therefore, the denial of their motion for a summary
judgment is not before this Court on appeal.
3
On June 29, 2005, the defendants moved for a summary
judgment. On August 3, 2005, the City responded to the
defendants' motion for a summary judgment. The trial court,
on December 14, 2005, entered an order denying the defendants'
motion for a summary judgment.1
On June 1, 2006, the City moved for a summary judgment.
On June 27, 2006, the defendants filed their response in
opposition to the City's motion for a summary judgment.
Following a hearing, the trial court, on August 17, 2006,
entered an order granting the City's motion for a summary
judgment and ordering the defendants to relocate the mobile
home on Peterson's lot so as to comply with § 91.3A2 of Art.
IX of the Code of Ordinances of the City of Abbeville. The
trial
court
also
summarily
dismissed
the
defendants'
counterclaims against the City with prejudice. The defendants
appeal.
1051802
4
Standard of Review
In reviewing the disposition of a motion for a summary
judgment, we apply the same standard the trial court used in
determining whether the evidence before it presented a genuine
issue of material fact. Bussey v. John Deere Co., 531 So. 2d
860, 862 (Ala. 1988); Rule 56(c), Ala. R. Civ. P. When the
movant makes a prima facie showing that no genuine issue of
material fact exists, the burden then shifts to the nonmovant
to present substantial evidence creating such an issue. Bass
v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (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." West v. Founders Life Assurance Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989). 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 (Ala. 1990).
Facts
On November 5, 2002, a tornado struck the City, causing
widespread and extensive damage. The tornado destroyed
1051802
5
Peterson's house, which was located on two contiguous lots at
374 Hickory Grove Road. Peterson's daughter and his son-in-
law, Ellis, resided in the house with him. Following the
destruction of the house, Peterson, his daughter, and Ellis
relied on friends for housing.
In December 2002, Ellis purchased a double-wide mobile
home to place on Peterson's property. Section 91.3A2 of Art.
IX of the City's Code of Ordinances addresses mobile homes and
provides:
"The mobile unit shall be oriented with the long
axis parallel to the street on which the lot fronts
and in no case shall the unit be located within
twenty (20) feet of any permanent type of building.
The unit shall not be located closer than ten (10)
feet of any lot line and must be a minimum of
twenty-five (25) feet from the street."
At some point after Ellis purchased the mobile home, Patricia
Jones, Peterson's neighbor, contacted James Giganti, the city
clerk, and informed him of the defendants' intentions of
placing a mobile home on the Peterson property. In his
capacity as city clerk, Giganti was the individual with the
authority to make decisions regarding the placement of mobile
homes within the municipal limits of the City. Jones contacted
Giganti a second time to inform him that the defendants had
1051802
6
poured a concrete slab perpendicular to Hickory Grove Road and
in close proximity to her property line. Giganti then
attempted to contact the defendants by telephone to discuss
the placement of the mobile home but was unsuccessful in doing
so because the defendants were staying with friends. Giganti
did not visit Peterson's property at this time to investigate
Jones's complaint because he was in the "middle of everything
else" in the aftermath of the tornado.
Subsequently, on December 18, 2002, Jones contacted
Giganti's office a third time complaining about the placement
of the mobile home on Peterson's property. Giganti's
secretary, knowing a permit had not been issued for a mobile
home in that location, sent a police officer to Peterson's
property to stop the installation of the mobile home. The
defendants were told that they needed to contact the city
clerk's office. At the time the installation of the mobile
home was stopped, the defendants had dug a septic tank and had
installed field lines, had poured a concrete pad, and had
installed half of the mobile home perpendicular to Hickory
Grove Road and approximately six to eight feet from Jones's
property line. The defendants did not inquire into the
1051802
7
applicable
zoning
requirements
before
beginning
the
installation of the mobile home and were unaware that a permit
was required before a mobile home could be placed within the
municipal limits of the City.
The defendants contacted the city clerk's office as
requested and met with Giganti on December 18, 2002. Also
present at this meeting was Rhett Taylor, a city councilman.
During this meeting Giganti informed the defendants of the
zoning requirements of § 91.3A2. Ellis represented to Giganti
that the Peterson property was approximately 100 feet wide and
that the mobile home they were installing was 80 feet long.
Ellis told Giganti that the debris from the destroyed house
remained on the lots, in the location of the original house,
i.e., in the center of the property; that a new septic tank
and field lines were in place; and that there was no other way
the mobile home could be positioned on the lot other than the
way it was being positioned. Ellis further informed Giganti
that the concrete pad and half of the mobile home had already
been installed on the property. Giganti determined that based
on the length of the mobile home and the width of the lot as
represented to him by Ellis, the mobile home could not be
1051802
8
positioned on the lot in a manner that complied with § 91.3A2
of the City's Code of Ordinances. However, Giganti gave the
defendants permission to complete the installation of the
mobile home in the nonconforming position –- perpendicular to
Hickory Grove Road and approximately six to eight feet from
Jones's property line –- because half of the mobile home had
already been installed, the defendants were homeless and
facing an emergency situation, and he did not believe, based
on Ellis's representations regarding the width of the
property, that the mobile home could be positioned on the
property in a manner that would comply with § 91.3A2. Ellis
testified that if Giganti had not granted the defendants
permission to complete the installation of the mobile home on
the Peterson property, he would have returned it to the
seller. Giganti testified in his deposition that he informed
the defendants that the City would investigate the matter at
a later date and that it would handle any problems that arise
at that time. Ellis denied in his deposition that Giganti told
him that the City would investigate the matter at a later
date.
1051802
Peterson's son resided in a mobile home that was located
2
at the rear of the two lots.
The debris from the destroyed house was removed from the
3
center of the property by the spring of 2003.
9
Giganti's subsequent investigation revealed the actual
dimensions of the two contiguous lots and the mobile home.
The mobile home measured 75 feet, 11 inches in length. The
front of the two Peterson lots that border Hickory Grove Road
had a combined width of 105 feet. The two lots are 210 feet
deep and widen from front to back; the rear width of the
combined lots is 154 feet. The width of the lots at the
2
approximate center from front to rear is 125 feet. The City
determined that the Peterson property was of sufficient size
to allow the mobile home to be placed on the property in a
manner that would comply with § 91.3A2.3
After the mobile home had been placed on the lots, the
City was presented with a petition signed by surrounding
property owners requesting that the City enforce § 91.3A2 of
the Code of Ordinances. The City ordered the defendants to
relocate the mobile home on the lot so that its placement
would comply with § 91.3A2. The City offered to pay the
expenses associated with relocating the mobile home, including
1051802
The warranty on the mobile home has since expired.
4
10
moving the septic tank and the field lines. The defendants,
however, refused to relocate the mobile home because, they
said, their warranty on the mobile home would be voided if
they moved it, they would lose their financing, and the move
could potentially damage the mobile home. Giganti testified
4
that in the wake of the tornado the City continued to issue
permits to its citizens but was not charging for the permits.
He stated that the situation the defendants found themselves
in could have been avoided if the defendants had applied for
a permit before installing the mobile home.
Analysis
The defendants rely on City of Foley v. McLeod, 709 So.
2d 471 (Ala. 1998), and argue that the City is estopped from
enforcing § 91.3A2 because, they say, Giganti waived the
enforcement of that ordinance by giving them permission to
install the mobile home in a nonconforming position on the
Peterson property.
In McLeod, the City of Foley sought to enforce a zoning
ordinance preventing the replacement of mobile homes in a
nonconforming mobile-home park. The Green Acres mobile-home
1051802
11
park had been in continuous operation since approximately
1955. Kenneth McLeod and Jackie McLeod purchased Green Acres
in 1982 and had operated the mobile-home park since then. In
1967, the City of Foley adopted a zoning ordinance that placed
the Green Acres mobile-home park into a single-family
residential zone. In 1987, the City of Foley adopted a new
zoning ordinance, which placed the Green Acres mobile-home
park into a high-density single-family residential zone.
Generally, the operation of a mobile-home park within a
single-family residential area would have been prohibited by
the zoning ordinances; however, the City of Foley had allowed
the continued operation of the Green Acres mobile-home park as
a preexisting nonconforming use.
In 1994, the McLeods purchased six new mobile homes to
replace existing rental units at the Green Acres mobile-home
park. The McLeods placed the mobile homes on lots at Green
Acres and prepared them for use as rental units. In August
1994, the City of Foley sent the McLeods a letter demanding
that the new mobile homes be removed from the Green Acres
mobile-home park within 10 days. The City of Foley contended
that because the McLeods' mobile-home park was a nonconforming
1051802
12
use, their locating different or additional mobile homes at
the Green Acres mobile-home park would violate the City of
Foley's zoning ordinance. The McLeods refused to remove the
mobile homes, and the City of Foley sued, seeking injunctive
and declaratory relief. The McLeods contended that the City
of Foley should be estopped from complaining of the
replacement of mobile homes at the Green Acres mobile-home
park because the City of Foley had permitted similar
replacements at various times since the enactment of the
current zoning ordinance in 1987. The trial court entered a
summary judgment in favor of the McLeods.
This Court concluded that the zoning ordinance prohibited
the replacement of the nonconforming mobile homes with new
mobile homes. However, this Court went on to determine that
the City of Foley was estopped from enforcing the zoning
ordinance because of its prior acquiescence in the replacement
of mobile homes at the Green Acres mobile-home park. This
Court stated:
"The McLeods contend that, even if the terms of
the City [of Foley's] zoning ordinance would prevent
their replacing mobile homes at Green Acres, the
City [of Foley] should be estopped from enforcing
the ordinance because the City [of Foley] has
allowed similar replacements at various times since
1051802
13
the ordinance was adopted in 1987. To support this
contention, the McLeods presented evidence to show
that numerous mobile homes were moved into and out
of Green Acres between 1987 and 1994. They also
point out that the City [of Foley] presented no
evidence indicating that it ever objected to the
moving and replacing of mobile homes at Green Acres
until August 1994. In further support of their
estoppel argument, the McLeods stated, in their
response to the City [of Foley's] interrogatories,
that they informed the City [of Foley's] building
inspector of their plan to purchase the six
replacement mobile homes and that he expressed no
objection to their plan. Again, the City [of Foley]
presented no evidence to refute this statement.
"In City of Prattville v. Joyner, 661 So. 2d
1158 (Ala. 1995) (Joyner I), this Court affirmed an
injunction estopping the City of Prattville from
denying fire protection services to residents and
businesses within its police jurisdiction. The
Court recited these general principles regarding the
application of the doctrine of estoppel against
municipal corporations:
"'In Alford v. City of Gadsden, 349
So. 2d 1132 (Ala. 1977), this Court
explained that "[t]he doctrine of estoppel
is rarely applied against a municipal
corporation, but it may be applied in a
proper case." Id. at 1135, citing City of
Montgomery v. Weldon, 280 Ala. 463, 195 So.
2d
110
(1967);
Powell
v.
City
of
Birmingham, 258 Ala. 159, 61 So. 2d 11
(1952); Brown v. Tuskegee Light & Power
Co., 232 Ala. 361, 168 So. 159 (1936). In
City of Guntersville v. Alred, 495 So. 2d
566, 568 (Ala. 1986), this Court stated
that "[t]he doctrine of estoppel may apply
against
a
municipal
corporation
when
justice and fair play demand it." See also
Alabama
Farm
Bureau
Mutual
Casualty
1051802
14
Insurance Co. v. Board of Adjustment, 470
So. 2d 1234 (Ala. Civ. App. 1985).'
"Joyner I, 661 So. 2d at 1161-62.
"This Court recently revisited the Joyner I
decision in City of Prattville v. Joyner, 698 So. 2d
122 (Ala. 1997) (Joyner II), and determined from the
facts of that case that the City of Prattville
should not have been estopped from denying fire
protection services. However, Joyner II did not
alter the general rule that, although estoppel is to
be
cautiously
applied
against
a
municipal
corporation, it may nonetheless be applied when a
municipality's conduct, language, or silence amounts
to a representation or concealment of a material
fact. See Joyner II, 698 So. 2d at 126, quoting
State Highway Dep't v. Headrick Outdoor Advertising,
Inc., 594 So. 2d 1202, 1204-05 (Ala. 1992).
"Thus, although the doctrine of estoppel is
rarely applied against a municipal corporation, it
may be applied in a proper case when justice and
fair play demand it and where there has been a
misrepresentation or concealment of material fact.
In the present case, the evidence indicates that
numerous mobile homes had been moved into and out of
Green Acres over the years. Nonetheless, the City
[of Foley] had declined to enforce the zoning
ordinance against Green Acres after Green Acres
became a nonconforming use in 1967. Even when the
City [of Foley] objected in 1994, it objected only
after the McLeods had already purchased the mobile
homes and had prepared them for rental. Taken as a
whole, these factors cause us to conclude that the
City [of Foley's] continued acquiescence amounted to
a misrepresentation of a material fact, namely that
it would not enforce the zoning ordinance to prevent
the McLeods from replacing mobile homes at Green
Acres. Moreover, it would be unjust and unfair at
this point to allow the City [of Foley] to force the
McLeods to remove the six mobile homes. Therefore,
1051802
15
we hold that as to the installation of these six
mobile homes the City [of Foley] is estopped from
enforcing the zoning ordinance against the McLeods.
On that basis, we affirm the summary judgment
against the City [of Foley]."
McLeod, 709 So. 2d at 474-75.
As noted in McLeod, the doctrine of estoppel is rarely
applied against a municipality; however, it may be applied "in
a proper case when justice and fair play demand it and where
there has been a misrepresentation or concealment of material
fact." McLeod, 709 So. 2d at 474. In this case, nothing in
the record indicates that the City had historically acquiesced
to nonconforming uses under or violations of § 91.3A2 by its
citizens.
Giganti
informed
the
defendants
of
the
applicability and requirements of § 91.3A2 during the meeting
on December 18, 2002. Although Giganti gave the defendants
permission to complete the nonconforming installation of the
mobile home on Peterson's property, he did so in an effort to
accommodate the defendants, who had been left homeless
following the tornado, and only after the defendants –-
whether intentionally or inadvertently -- had misled him as to
the dimensions of the Peterson property and had installed a
new septic tank, field lines, a concrete pad, and half of the
1051802
16
double-wide mobile home. Accordingly, we conclude that the
City is not estopped from enforcing § 91.3A2 because "justice
and fair play" do not demand that the doctrine of estoppel be
applied based on the facts of this case where there has been
no "misrepresentation or concealment of material fact" by the
City. McLeod, 709 So. 2d at 474.
The defendants next contend that to require them to re-
position the mobile home in a manner that complies with §
91.3A2 would work a substantial and unnecessary hardship. The
defendants insist that they could lose their financing for the
mobile home if they were to reposition it on the property and
that it would be virtually impossible to reposition the
double-wide mobile home without damaging it.
It is undisputed that the mobile home as currently
positioned on the Peterson property violates § 91.3A2 of Art.
IX of the City's Code of Ordinances. Section 153 of the
City's Code of Ordinances provides that the City may institute
such action or proceedings necessary to correct or abate a
violation of its ordinances. In Town of Orrville v. S & H
Mobile Homes, Inc., 872 So. 2d 856, 857 (Ala. Civ. App. 2003),
the Town of Orrville filed a complaint against S & H Mobile
1051802
17
Homes, Inc., and Lula Powell seeking to enforce the Town of
Orrville's zoning ordinance prohibiting the placement of
mobile homes on property within the municipal limits of the
Town of Orrville that is not specifically zoned for
mobile-home use. The evidence indicated that S & H Mobile
Homes and Powell were aware of the zoning ordinance and yet
placed the mobile home on the particular property. S & H
Mobile Homes and Powell requested a variance from the zoning
ordinance after the Town of Orrville filed its complaint. The
Town of Orrville's board of adjustments voted unanimously to
deny the variance. On appeal from the board's decision, the
circuit court entered a judgment in favor of S & H Mobile
Homes and Powell, denying the Town of Orrville's request to
enjoin them from placing a mobile home on property within the
municipal limits not specifically zoned for mobile-home use.
In holding that S & H Mobile Homes and Powell were not
entitled to a variance, the Court of Civil Appeals stated:
"Alabama law is clear and our courts have
repeatedly recognized that variances should be
granted sparingly and only under unusual and
exceptional
circumstances
where
the
literal
enforcement of the ordinance would result in
unnecessary hardship. Ex parte Chapman, 485 So. 2d
1161
(Ala.
1986);
see
also
Board
of
Zoning
Adjustment of Fultondale v. Summers, 814 So. 2d 851
1051802
18
Ala. 2001); Ex parte Board of Zoning Adjustment of
Mobile, 636 So. 2d 415 (Ala. 1994); Board of Zoning
Adjustment of Mobile v. Dauphin Upham Joint Venture,
688 So. 2d 823 (Ala. Civ. App. 1996); Board of
Adjustment of Gadsden v. VFW Post 8600, 511 So. 2d
216 (Ala. Civ. App. 1987). ...
"....
"...[T]he dispositive
issue
on
appeal
is
whether
the enforcement of the zoning ordinance and the
subsequent denial of a variance resulted in an
unnecessary hardship to the defendants. '"[T]he
unnecessary hardship which will suffice for the
granting of a variance must relate to the land
rather than to the owner [herself]. Mere personal
hardship does not constitute sufficient ground for
the granting of a variance."' Ex parte Chapman, 485
So. 2d at 1164 (quoting 82 Am.Jur.2d Zoning and
Planning § 275 (1976)). Further, a '"self-inflicted
or self-created hardship may not be the basis for a
variance or for a claim thereof."' Ex parte Chapman,
485 So. 2d at 1163 (quoting Thompson, Weinman & Co.
v. Board of Adjustments, 275 Ala. 278, 281, 154 So.
2d 36, 39 (1963)).
"It is undisputed that Powell knew of the zoning
restriction before she purchased the mobile home.
Nevertheless, Powell purchased the mobile home
without first seeking and securing a variance. In
her brief on appeal, Powell asserts that it would
have been futile to apply for a variance in light of
McHugh's
statement
that
the
zoning
ordinance
prohibited the placement of the mobile home on the
property. Regardless of the alleged futility in
applying for a variance, Powell was aware of the
zoning restriction but proceeded to place a mobile
home on the property. Clearly, Powell created the
hardship that she alleged existed, and, therefore,
she may not be permitted to take advantage of it.
See Ex parte Chapman, supra; see also City of
Russellville Zoning Board of Adjustment v. Vernon,
1051802
19
842 So. 2d 627 (Ala. 2002)(holding trial court erred
by granting variance from zoning restriction where
appellee created hardship)."
S & H Mobile Homes, 872 So. 2d at 858-61.
It is undisputed that the defendants here installed a new
septic tank, field lines, a concrete pad, and half of the
double-wide mobile home without inquiring as to the applicable
zoning requirements and without first obtaining a required
permit from the City. Giganti testified that the present
situation could have been avoided had the defendants inquired
as to the applicable zoning requirements and sought a permit
before beginning the installation of the mobile home.
Further, Giganti's permitting the defendants to complete
installation of the mobile home was based in part on
misrepresentations –- whether intentional or inadvertent –-
by the defendants regarding the dimensions of Peterson's
property and in part on the fact that the mobile home had
already been substantially installed. It is clear that the
defendants created any hardship that may exist by not
inquiring into the applicable zoning laws and obtaining the
required permission from the City before beginning to install
the mobile home. Therefore, the defendants cannot now rely on
1051802
20
that alleged hardship in refusing to reposition the mobile
home on Peterson's property in a manner that would comply with
§ 91.3A2.
The defendants next argue that the trial court erred in
summarily dismissing their counterclaims against the City.
Rule 28(a)(10), Ala. R. App. P., requires that an appellate
brief contain "[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." A
single citation to a general principle of law without specific
relevance to the issue presented will not satisfy the minimum
requirements of Rule 28(a)(10), Ala. R. App. P. Davis v.
Sterne, Agee & Leach, Inc., 965 So. 2d 1076 (Ala. 2007). The
defendants' argument as to this issue consists of a half page
and contains only a single citation to general authority
relating
to
the
summary-judgment
standard
of
review.
Accordingly, we conclude that the defendants' argument as to
this issue fails to comply with the requirements of Rule
28(a)(10). "[I]t is well settled that a failure to comply
with the requirements of Rule 28(a)(10) requiring citation of
1051802
21
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).
Conclusion
The trial court's summary judgment is affirmed.
AFFIRMED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,
Parker, and Murdock, JJ., concur. | June 20, 2008 |
03c12000-33bf-454b-ac2e-d59ea2a1c8e3 | Harold Jones and Pam Jones v. ALFA Mutual Insurance Company | N/A | 1060179 | Alabama | Alabama Supreme Court | Rel 06/13/2008
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, 2007-2008
_________________________
1060179
_________________________
Harold Jones and Pam Jones
v.
Alfa Mutual Insurance Company
Appeal from Coffee Circuit Court
(CV-98-315)
COBB, Chief Justice.
Harold Jones and Pam Jones, plaintiffs in a bad-faith and
breach-of-contract action in the Coffee Circuit Court, appeal
from a partial summary judgment entered in favor of Alfa
1060179
2
Mutual Insurance Company on the Joneses' bad-faith claims. We
affirm in part, reverse in part, and remand.
I. Factual Background and Procedural History
On October 4, 1995, Hurricane Opal made landfall along
the Florida Gulf Coast. Much of south Alabama, including
Coffee County, sustained damage as a result of the storm,
which retained hurricane status as it arrived inland. The
Joneses, who reside on their cattle farm in Coffee County,
awoke on October 5, 1995, to find that their house, garage,
and barn had suffered damage from the wind associated with
Hurricane Opal. Specifically, the Joneses contend that there
were cracks in their interior drywall, the seams in the
drywall ceiling of their house were visible, cracks appeared
in the mortar of the exterior brick veneer of their house, and
there were loose bricks in the veneer. The Joneses also
contend that a tree near their house was partially uprooted by
the wind and that the tree fell onto and damaged the roof of
their house. They further contend that at least one of the
metal trusses in an addition to their barn was bent during the
hurricane. The Joneses had a farm owner's policy with Alfa at
the time, and they submitted a claim to Alfa on October 6,
1060179
3
1995, for the damage to their property they say was caused by
Hurricane Opal. At an unspecified date, two Alfa adjusters
came to the Joneses' residence to inspect the damage to the
house. According to Harold Jones, the two adjusters noted the
damage to the roof of his house. Harold Jones then showed the
two adjusters damage to the drywall ceiling and the walls in
his house. The adjusters told Jones that that damage was
outside the realm of their expertise and that someone else
would inspect that damage.
According to Pam Jones, Alfa agent Wendell Sanders came
to the Joneses' house soon after Hurricane Opal, looked at the
house, and told the Joneses that they could proceed with
replacing their roof. Sanders, however, testified that he did
not make any such representation to the Joneses nor would he
have had the authority to do so.
Alfa adjuster Gary Bradshaw also inspected the Joneses'
house. Bradshaw inspected the roof, walked around the
exterior of the house, and noted cracks in the exterior brick
veneer and interior drywall that Harold Jones contended were
caused by Hurricane Opal. Bradshaw was uncertain about Harold
Jones's contention that the cracking of the brick veneer and
1060179
4
drywall was the result of Hurricane Opal, and Bradshaw
consulted his supervisor Hilton Godwin, an Alfa district
claims manager, and the two determined that an engineer's
opinion was warranted. Alfa then hired structural engineer
Ralph E. Jones to inspect the Joneses' house and to render an
opinion as to the causation of the cracks in the drywall and
the brick veneer.
Ralph Jones inspected the Joneses' house on November 13,
1995. Harold Jones and Bradshaw were both present during the
inspection,
and
Harold
Jones
showed Ralph Jones various
cracks
in the exterior and interior of the house. Ralph Jones also
inspected the crawl space under the house. During his
inspection Ralph Jones never went into the attic or onto the
roof. While he was inspecting the interior of the house,
Ralph Jones saw a crack in the fireplace surround. Ralph
Jones stated that he asked Harold Jones about the crack and
that Harold Jones told him that the crack had been present for
an extended time.
According to Harold Jones, after Ralph Jones completed
his inspection, Ralph Jones told Harold Jones that if the
Joneses' house was located in Montgomery County he would say
1060179
5
the damage was most likely caused by soil settlement but that
the soil in Coffee County did not tend to cause settlement
problems in structures. Harold alleges that Ralph Jones
continued by saying that it was his belief that wind had
become trapped in the carport of the house during Hurricane
Opal and that the trapped wind had lifted the roof and had
shifted the top of the house. Harold Jones recalls that Pam
Jones and possibly Bradshaw were present when Ralph Jones made
this
statement.
Ralph
Jones,
however,
testified
by
deposition
that he did not recall making such a statement.
On December 4, 1995, Ralph Jones submitted a two-page
written report on the Joneses' house to Hilton Godwin. In his
report, Ralph Jones wrote:
"It is my opinion that the brick cracks, caulk
separations, [S]heetrock cracks, and related damage
along the north and east sides of the carport are
due to settlement of the foundation in the vicinity
of the northeast corner of the carport, and that
this settlement and damage was not caused by wind
forces or otherwise related to Hurricane Opal."
According to Bradshaw, he had a telephone conversation with
Harold Jones the day after Bradshaw received Ralph Jones's
report. Bradshaw contends that he told Harold Jones that
Ralph Jones's report had arrived and that the cracks in the
1060179
According to Harold Jones, "At that time Bruce [McLean]
1
was, I guess, advising or helping me with [the claims process]
to make sure that I wasn't –- that I didn't sign off on
anything, you know, that would leave Alfa ...." Harold also
stated:
"As far as engaging, he was, I guess –- he did not
receive a retainer but he was –- I guess his doors
was [sic] open at any time that I needed to ask a
question or needed some advice. And, of course this
was something I needed advice and needed questions
answered and I took it to him. But now as far as
engaging him or hiring him as an attorney there had
not been any such thing as far as saying I want to
hire you to represent me in this matter."
6
drywall and exterior brick veneer were not covered by the
insurance policy and that Alfa would pay benefits only for the
damage to the roof. Harold Jones, however, denies that
Bradshaw ever told him that the claim would not be paid.
On December 29, 1995, Bradshaw wrote a letter to the
Joneses' attorney, Bruce McLean. In this letter, Bradshaw
1
stated:
"I understand that you are representing our
above insured for a hurricane claim which was filed
with ALFA for the October 4 hurricane that occurred
in our area. Enclosed is an estimate for the
replacement of the insured's shingle roof and a
draft representing payment less the deductible for
that roof.
"I also understand that you are in possession of
a copy of the engineer's report which indicates that
shifting and settlement of the insured house was not
1060179
7
related to the hurricane winds. Should you have any
questions concerning that report or any aspect of
the insured's claim or policy please feel free to
give me a call. Also if there is any other damage
that the insured has found as a result of the
hurricane that we have not already addressed please
have him to submit itemized estimates for those to
be considered. I thank you for your help and
cooperation and look forward to hearing from you."
According to the Joneses, there were no cracks in their
exterior brick veneer and interior drywall before Hurricane
Opal. They contend that Alfa knew that these cracks did not
exist before Hurricane Opal. During the summer of 1995,
Sanders came to the Joneses' house to inspect the house for a
"rewrite" of their farm owner's policy. During his
inspection, Sanders walked around the house and took
photographs of the house. In his deposition, Sanders
testified that he did not see any damage to the Joneses'
property during his inspection of the house.
Bradshaw called McLean about the Joneses' claim on August
5, 1996. Alfa's records state "[McLean] wasn't sure if
[Harold Jones] wanted to pursue this or not; [McLean] would
check with [Harold Jones] to see." On August 8, 1996, Sanders
had a telephone conversation with Joy Richardson of Alfa's
underwriting department in which he stated that Bradshaw had
1060179
8
spoken with the Joneses' attorney and that the Joneses were
dissatisfied with Alfa's handling of their claim.
Also on August 8, 1996, Bradshaw sent a memorandum to
Richardson asking that the Joneses' farm owner's policy be
canceled "based upon [the] engineer's report after the
hurricane that this house is suffering from settlement and
structural damage, none of which was related to the storm but
all attributed to the foundation." Richardson responded to
Bradshaw on August 13, 1996, stating the Joneses' policy was
to renew on September 9, 1996, that she did not receive
Bradshaw's
memorandum
until
August
12,
1996,
that
insufficient
time existed to give 30 days' notice of nonrenewal before the
renewal date, and thus that the policy would be renewed, but
it would be renewed for only 6 months. On August 13, 1996,
Richardson also wrote a memorandum to Sanders directing him
not to rewrite the Joneses' policy because it was being
renewed "as is" and that underwriting would make a final
decision before the next renewal.
On October 17, 1996, Bradshaw adjusted a claim at the
Joneses'
residence resulting from peanuts
that
had
boiled over
while cooking. While Bradshaw was adjusting that claim,
1060179
9
Harold Jones reminded Bradshaw that Alfa had not yet paid for
numerous
problems
the
Joneses alleged were
caused by Hurricane
Opal. According to Harold Jones, Bradshaw stated, "I'm out
here to take care of the peanut boil situation and that's it."
Harold Jones also testified that Bradshaw informed him that
Alfa had not ruled on the Joneses' hurricane claim, that Alfa
had not informed him how to handle the claim, and that as of
that date there had been no settlement of the claim.
On or around January 14, 1997, Richardson sent a
memorandum to Sanders instructing him to raise the Joneses'
deductible at the next renewal. In response to the
memorandum, Sanders called Richardson and inquired if Alfa
could legally raise the deductible while a claim was pending.
Richardson told Sanders that she would inquire as to whether
Alfa could legally raise the deductible. On January 19, 1997,
Alfa's underwriting department signed off on the August 13,
1996, recommendation not to renew the Joneses' farm owner's
policy. On January 20, 1997, Alfa closed the Joneses'
Hurricane Opal claim file and issued a $350 check to the
Joneses for damage their barn sustained during the hurricane.
1060179
10
According to Sanders, he was unaware until March 1997
that the Joneses' claim had been denied. Sanders stated that
he had been told that Alfa "was working on" the claim. Pam
Jones stated that on numerous occasions Sanders told the
Joneses that he would take care of their claim and that there
was no need to worry. According to both of the Joneses,
Sanders told them that he would go to Montgomery and try to
get their claim resolved. Sanders, however, stated that he
never made any such offer. The Joneses contend that Sanders
encouraged them not to pursue legal action on the claim, and
Sanders admits that he would have asked them not to get a
lawyer until an Alfa adjuster could talk to them.
On February 4, 1997, Alfa sent a letter to the Joneses
notifying them that their farm owner's policy was not being
renewed as the result of "substantial change in the risk due
to claims experience." Harold Jones alleges that he had a
conversation with Sanders about the nonrenewal in which
Sanders stated that he would go to Alfa's headquarters in
Montgomery on his day off to help the Joneses become reinsured
and that Sanders said "Alfa doesn't stand a snowball['s]
chance in hell because your house was not in this condition
1060179
11
two months prior to me renewing your insurance." According to
Sanders, he did not promise the Joneses he would go to
Montgomery on their behalf, but he did contact the Montgomery
headquarters about the nonrenewal by discussing the matter
with Jim Short, who was in charge of Alfa's underwriting
department. Sanders also contends that he made no statement
to the Joneses about the likelihood of success or failure of
a legal claim by the Joneses against Alfa.
After their Alfa policy was not renewed, the Joneses
attempted to find insurance coverage, but to no avail. Their
mortgagor force placed a policy with $35,000 limits on their
house.
In January and March 1997, the Joneses received
questionnaires from Alfa regarding their satisfaction with
Alfa's handling of their 1995 claim. They also received a
telephone call from an Alfa representative seeking their
comments about the handling of their claim. A few days after
the telephone call from the Alfa representative, Godwin
telephoned the Joneses and asked about their complaints with
the claims process. According to the Joneses, Godwin did not
1060179
The Joneses continued to live in the basement of the
2
fire-damaged house.
12
tell them that the claims that had not yet been settled had
been denied.
On November 12, 1997, the Joneses built a fire in their
fireplace for the first time since Hurricane Opal. That
evening, a fire caused by a crack in the chimney damaged the
Joneses' house. The Joneses contend that the crack occurred
during Hurricane Opal. The policy force placed by the
mortgagor provided insufficient coverage to repair the
Joneses' house.2
On November 17, 1997, Ralph Jones, Godwin, engineer Owen
Posey, and Alfa's attorney Merrill Shirley visited the
Joneses' house. Pam Jones stated that the four visited the
residence unannounced and without their permission. Alfa,
however, contends that it notified the Joneses' attorney
before visiting the premises. According to Godwin, the
purpose of the visit was "to have another engineer [Posey]
come out to take a look at [the house] to see there again if
there was anything that we had missed."
1060179
13
In December 1997, Godwin had two other engineers inspect
the Joneses' house again. According to Godwin, "We had asked
to have another engineer come out to take a look at it to see
there again if there was anything that we had missed."
On December 3, 1998, the Joneses filed a 12-count
complaint against Alfa, Bradshaw, and Ralph Jones in the
Coffee Circuit Court. The defendants moved for a dismissal
under Rule 12(b)(6), Ala. R. Civ. P., contending that the
statutory limitations period had expired before the Joneses
filed their action. The trial court granted the motion to
dismiss only as to the Joneses' claims of bad faith and
negligent hiring and supervision against Alfa.
After discovery was completed, the defendants moved for
a summary judgment on the remaining claims. The trial court
entered a summary judgment for all defendants on all the
remaining claims. The Joneses appealed the summary judgment
as well as the dismissal of their bad-faith claims to this
Court. On September 5, 2003, this Court affirmed the summary
judgment as to all claims except the Joneses' breach-of-
contract claim against Alfa, reversed the trial court's
dismissal of the Joneses' bad-faith claims, and remanded the
1060179
14
case to the trial court for further proceedings. Jones v.
Alfa Mut. Ins. Co., 875 So. 2d 1189 (Ala. 2003)("Jones I").
On November 17, 2004, Alfa moved for partial summary
judgment on the Joneses' bad-faith claims. In its motion for
a partial summary judgment, Alfa argued that the Joneses had
failed to file their action within two years of learning of
facts that would have led to the discovery of an action for
bad-faith refusal to honor the insurance policy and that their
action was thus barred by the statute of limitations. Alfa
alternatively argued that the Joneses had failed to state a
cognizable claim upon which relief could be granted because,
it said, Alfa had not acted in bad faith. The trial court
entered a partial summary judgment in favor of Alfa on the
bad-faith claims on September 6, 2006, concluding "that there
is no genuine issue of material facts to [the Joneses'] bad
faith claim." The Joneses then moved the trial court to enter
a Rule 54(b), Ala. R. Civ. P., order making its September 6,
2006, partial summary judgment final, which the trial court
did on September 25, 2006. This appeal followed.
II. Standard of Review
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
1060179
15
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."
Dow v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39
(Ala. 2004).
III. Analysis
A. Are the Joneses' bad-faith claims
barred by the statute of limitations?
On appeal, the Joneses argue that the trial court erred
in entering a summary judgment based on Alfa's statute-of-
limitations argument because, they claim, Alfa did not close
the file on their claim resulting from Hurricane Opal until
January 20, 1997, less than two years before they filed this
action, and because Alfa's actions following the issuance of
Ralph Jones's report were not in accordance with the denial of
1060179
16
the claim. Alfa, however, argues that Ralph Jones's report,
as well as Bradshaw's letter of December 29, 1995,
sufficiently placed the Joneses on notice that their claim for
damage to their drywall and brick veneer following Hurricane
Opal was being denied.
In Jones I, this Court summarized the law concerning the
statute of limitations of a bad-faith claim, stating:
"Bad faith is an intentional tort, Shelter
Mutual Insurance Co. v. Barton, 822 So. 2d 1149,
1154 (Ala. 2001), and a species of fraud. Dumas v.
Southern Guaranty Ins. Co., 408 So. 2d 86, 89 (Ala.
1981).
"'The cause of action for bad faith
refusal
to
honor
insurance
benefits
accrues
upon the event of the bad faith refusal, or
upon the knowledge of facts which would
reasonably lead the insured to a discovery
of the bad faith refusal. The accrual of
the tort of bad faith is a question of fact
to be determined by the circumstances of
each case.'
"Safeco Ins. Co. of America v. Sims, 435 So. 2d
1219, 1222 (Ala. 1983) (citation omitted). 'The
statute of limitations for bad faith claims arising
on or after January 9, 1985, is for two years.'
ALFA Mut. Ins. Co. v. Smith, 540 So. 2d 691, 692
(Ala. 1988) (citations omitted)."
875 So. 2d at 1193. Further, in regard to a statute of
limitations, the Court has held:
1060179
17
"When
a
claim
accrues,
for
statute-of-limitations purposes, is a question of
law if the facts are undisputed and the evidence
warrants but one conclusion. See LeBlang Motors,
Ltd. v. Subaru of America, Inc., 148 F.3d 680 (7th
Cir. 1998); JN Exploration & Production v. Western
Gas Resources, Inc., 153 F.3d 906 (8th Cir. 1998);
DXS, Inc. v. Siemens Medical Systems, Inc., 100 F.3d
462 (6th Cir. 1996). However, when a disputed issue
of fact is raised, the determination of the date of
accrual
of
a
cause
of
action
for
statute-of-limitations purposes is a question of
fact to be submitted to and decided by a jury. Id."
Kindred v. Burlington Northern R.R., 742 So. 2d 155, 157 (Ala.
1999).
Alfa argues that the December 29, 1995, letter from
Bradshaw to McLean, as well as Ralph Jones's December 4, 1995,
report, constituted a denial of the Joneses' claim seeking
proceeds for damage to the drywall and exterior brick veneer
of their house. The Joneses aver that the facts are disputed
and thus that summary judgment was not warranted on the
statute-of-limitations issue. In support of their argument,
the Joneses note that the December 29, 1995, letter from
Bradshaw to McLean does not explicitly state that the claim
was being denied and does not reference all the items the
Joneses claimed were damaged by the hurricane. Likewise, the
Joneses
note
that,
according
to
Godwin's
deposition
testimony,
1060179
18
Alfa's policy is to deny a claim orally whenever possible or,
in the alternative, to deny the claim in writing. The Joneses
testified that they had several face-to-face conversations
with both Sanders and Bradshaw after Ralph Jones had completed
his report, yet Alfa never orally denied the Joneses' claim.
In fact, Harold Jones testified that while he was adjusting
the peanut-boil-over claim, Bradshaw informed him that Alfa
had not ruled on the Joneses' hurricane claim, that Alfa had
not informed him how to handle the claim, and that as of that
date there had been no settlement of the claim.
The Joneses argue that Alfa's actions after Ralph Jones
issued his report indicated that their claim had not been
denied. They argue that after the report was issued Alfa
invited them
to
submit additional
information
to
support their
claim and that Alfa continued to investigate the claim for
almost
two
years
following
Ralph
Jones's
report.
Specifically, they note that Alfa reinspected the Joneses'
house in November 1997 and again in December 1997.
The Joneses further argue that Alfa did not close the
file on their hurricane claim until January 20, 1997, and that
Alfa was making payments on the claim as late as that date,
1060179
19
thus indicating that the claim was still open. Similarly they
note that Sanders did not know that the claim had purportedly
been denied and that he assured the Joneses on numerous
occasions that
their
hurricane claim would
ultimately
be
paid.
Alfa notes that this Court has previously held that
"'fraud is discoverable as a matter of law for purposes of the
statute of limitations when one receives documents that would
put one on such notice that the fraud reasonably should be
discovered.'" Kelly v. Connecticut Mut. Life Ins. Co., 628
So. 2d 454, 458 (Ala. 1993) (quoting Hickox v. Stover, 551 So.
2d 259, 262 (Ala. 1989), overruled on other grounds, Foremost
Ins. Co. v. Parham, 693 So. 2d 409 (Ala. 1997)). The sentence
immediately preceding the above-quoted sentence from Kelly,
however, states: "'The question of when a plaintiff should
have discovered fraud should be taken away from the jury and
decided as a matter of law only in cases where the plaintiff
actually knew of facts that would have put a reasonable person
on notice of fraud.'" 628 So. 2d at 458 (quoting Hicks v.
Globe Life & Acc. Ins. Co., 584 So. 2d 458, 463 (Ala. 1991),
overruled on other grounds, Foremost Ins. Co., supra); see
also Gilmore v. M & B Realty Co., 895 So. 2d 200, 210 (Ala.
1060179
20
2004) ("'"[t]he question of when a party discovered or should
have discovered the fraud is generally one for the jury"'"
(quoting Ex parte Seabol, 782 So. 2d 212, 216 (Ala. 2000),
quoting in turn Liberty Nat'l Life Ins. Co. v. Parker, 703 So.
2d 307, 308 (Ala. 1997))). Bradshaw's December 29, 1995, two-
paragraph letter to McLean does not quote applicable policy
language or explicitly state whether Alfa agreed with Ralph
Jones's report. Nor does it explicitly state that the claim
has been denied as claim-denial letters typically do.
There is also evidence that Alfa took actions subsequent
to writing the letter that could have led the Joneses to doubt
whether their claim had been denied. Among other things, this
includes Alfa's continuing to investigate the cracks in the
walls of the house, Bradshaw's stating in October 1996 that
Alfa had not instructed him as how to handle the Joneses'
claim and that it had not ruled on their claim, and the fact
that Sanders, the Joneses' insurance agent, was unaware until
March 1997 that the claim had been denied. This Court cannot
conclude as a matter of law that Alfa put the Joneses "on such
notice that the fraud reasonably should [have been]
discovered." Kelly, 628 So. 2d at 458.
1060179
21
A review of the evidence in a light most favorable to the
nonmovant, the Joneses, indicates that genuine issues of
material fact exist as to when Alfa actually denied the
Joneses' claim and as to when the Joneses would have or should
have known of facts that would reasonably lead them to
discover the denial. Thus, the partial summary judgment on
the Joneses' bad-faith claims is not barred by the statute of
limitations.
B. Does a genuine issue of material fact exist
as to the basis for the Joneses' bad-faith claims?
In their complaint, the Joneses alleged both a "normal"
bad-faith claim and an "abnormal" bad-faith claim. This Court
has defined "normal" and "abnormal" bad faith in the following
manner:
"In the 'normal' bad-faith case, the plaintiff must
show the absence of any reasonably legitimate or
arguable reason for denial of a claim. [State Farm
Fire & Cas. Co. v.] Slade, 747 So. 2d [293] at 306
[(Ala. 1999)]. In the 'abnormal' case, bad faith
can consist of: 1) intentional or reckless failure
to investigate a claim, 2) intentional or reckless
failure to properly subject a claim to a cognitive
evaluation or review, 3) the manufacture of a
debatable reason to deny a claim, or 4) reliance on
an ambiguous portion of a policy as a lawful basis
for denying a claim. 747 So. 2d at 306-07. ...
"'"Bad faith ... is not simply bad judgment or
negligence. It imports a dishonest purpose and
1060179
22
means a breach of a known duty, i.e., good faith and
fair dealing, through some motive of self-interest
or ill will."' Slade, 747 So. 2d at 303-04 (quoting
Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d
916, 924 (Ala. 1981))."
Singleton v. State Farm Fire & Cas. Co., 928 So. 2d 280, 283
(Ala. 2005). In order to recover on a "normal" bad-faith
claim, the plaintiff must prove: "(1) the existence of an
insurance contract; (2) an intentional refusal to pay the
claim; and (3) the absence of any lawful basis for refusal and
the insurer's knowledge of that fact or the insurer's
intentional failure to determine whether there is any lawful
basis for its refusal." Acceptance Ins. Co. v. Brown, 832 So.
2d 1, 16 (Ala. 2001). "For a 'normal' bad-faith claim to be
submitted to the jury, the underlying contract claim must be
so strong that the plaintiff would be entitled to a preverdict
judgment as a matter of law." Shelter Mut. Ins. Co. v.
Barton, 822 So. 2d 1149, 1155 (Ala. 2001). However, "'[t]he
rule in "abnormal" cases dispensed with the predicate of a
preverdict JML [judgment as a matter of law] for the plaintiff
on the contract claim if the insurer had recklessly or
intentionally failed to properly investigate a claim or to
subject the results of its investigation to a cognitive
1060179
23
evaluation.'" White v. State Farm Fire & Cas. Co., 953 So. 2d
340, 348 (Ala. 2006) (quoting Employees' Benefit Ass'n v.
Grissett, 732 So. 2d 968, 976 (Ala. 1998)).
1. "Normal" bad faith
As to their "normal" bad-faith claim, the Joneses contend
that there is no reasonable or justifiable ground for Alfa's
refusal to pay the disputed claim. In support of their
argument, they note their own testimony that no cracks existed
in the brick veneer or the drywall of their house before
Hurricane Opal. They further argue that this testimony is
supported by Sanders's testimony that he did not see or recall
seeing any damage or cracks to the exterior of the Joneses'
house when he inspected the house during the summer of 1995.
The Joneses contend that upon inspecting their house after
Hurricane Opal Ralph Jones informed them that he believed that
wind had become trapped under the carport during Hurricane
Opal, thus lifting and shifting the roof of the house, and
that the soil in Coffee County was not prone to cause
settlement. Likewise, the Joneses contend that Sanders told
Harold Jones upon learning of the nonrenewal of the Joneses'
policy by Alfa that Alfa did not "stand a snowball['s] chance
1060179
24
in hell" of being successful if the claim was litigated
because the cracks and other damage were not present when he
inspected
the house during the summer of 1995.
The Joneses
also contend that their case is analogous to this Court's
recent decision of White v. State Farm Fire & Casualty Co.,
supra. In White, a windstorm blew off portions of the roof of
a building that housed a business, and the interior of the
building suffered water damage. The business received an
estimate for repair of the roof after the business's office
manager had a telephone conversation with an individual with
State Farm's claims office indicating that it should go ahead
and repair the roof and keep the receipts for the work because
it might be a week before a State Farm adjuster could visit
the building. The business received an estimate to replace
the roof with a roof consisting of a single-ply rubber
membrane, although the damaged roof was a "built-up" roof.
Six days after the storm, an adjuster with State Farm's
national catastrophe team
inspected
the building and
authorized White, the managing partner for the owner of the
building, to proceed with the repairs. The next day the
adjuster left a telephone message for White, stating that she
1060179
25
needed a signed copy of the roofing company's proposal and
needed to know whether the new roof was an upgrade. White
attempted unsuccessfully to contact the adjuster and finally
the next day spoke with someone at State Farm who told him to
fax the signed proposal to State Farm, which White did. White
also told the State Farm employee that the new roof was not an
upgrade. White was unable to contact the adjuster, and
ultimately contacted the leader of the national catastrophe
team. The team leader told White that State Farm's estimate
for the roof replacement was approximately $20,000 less than
the proposal from the roofing company. State Farm arrived at
its estimate using a computerized estimating tool. State Farm
then issued a check to the owner of the building for the
damage to the exterior and interior of the building, including
the amount of State Farm's estimate for replacing the roof.
Upon inquiry by White, the team leader maintained that the
repair of the roof had been authorized. Only after White
retained counsel did State Farm decide to give him "the
benefit of the doubt" and offer to pay the difference between
State Farm's estimate and the roofing company's proposal.
White and his company rejected State Farm's offer.
1060179
26
White and his company sued State Farm, alleging bad-faith
failure to pay an insurance claim. The trial court entered a
summary judgment in favor of State Farm, and White appealed.
Reversing the summary judgment, this Court held:
"Based on the present state of the record in
this case, we conclude that material questions of
fact exist that make a summary judgment on the bad-
faith claim improper. White and his office manager
... testified that two different State Farm agents
told them to repair the roof. White insists that
[the adjustor] not only authorized him to proceed
with the repairs, but she also told him it would be
a day before State Farm had the check processed for
the claim. White says no one at State Farm ever
told him that there was a question whether State
Farm would pay the claim. John Hill, a State Farm
manager, testified that if State Farm authorized
repairs, then it should have paid the entire $43,395
proposed by Quality Roofing. Other State Farm
employees testified, however, that if [the adjustor]
had indeed authorized White to proceed with the
repairs proposed by Quality Roofing, it would not
have been necessary for her to have prepared an
estimate, which she did."
953 So. 2d at 350.
The Joneses argue that the same thing that happened to
White happened to them. They contend that Sanders told them
two days after Hurricane Opal to proceed with repairs to their
roof. Likewise, the Joneses allege that Ralph Jones told them
that the cracks in the interior and exterior walls of their
house were not caused by settlement and that he believed that
1060179
27
wind had become trapped in their carport during Hurricane
Opal, thus lifting and shifting the roof of their house. They
further allege
that Sanders
repeatedly
assured them that
their
claim would be paid.
Alfa, however, argues that White is distinguishable from
this case because it was never disputed in White that the
windstorm had caused the damage to the roof, whereas in this
case whether the cracks in the walls of the house were caused
by Hurricane Opal is disputed. Instead, Alfa notes that in
White State Farm refused to pay the full cost to replace the
roof, arguing that the new roof was an upgrade.
Alfa also argues that Adams v. Auto-Owners Insurance Co.,
655 So. 2d 969 (Ala. 1995), and Chastain v. Baldwin Mutual
Insurance Co., 495 So. 2d 684 (Ala. Civ. App. 1986), support
their
contention that the
summary
judgment
should be affirmed.
In Adams, an insured claimed roof damage caused by high winds
and a severe thunderstorm. Both the insurer's adjuster and an
engineer hired by the insurer concluded that the vast majority
of roof damage was caused, not by high winds or a
thunderstorm, but by age and deterioration. This Court
concluded
that
the
investigations
of
the
adjuster
and
engineer
1060179
28
provided reasonably arguable and legitimate reasons for
denying the insured's claim; thus the summary judgment in
favor of the insurer on the insured's bad-faith claim was due
to be affirmed. Likewise, in Chastain, the insureds contended
the roof of their manufactured home was damaged by a storm,
but the
insurer's
adjuster
who inspected the
manufactured home
found no evidence of damage to the manufactured home. In
affirming the summary judgment in favor of the insurer as to
the insureds' bad-faith claim, the Court of Civil Appeals held
that the insureds would not have been entitled to a directed
verdict (now a judgment as a matter of law) on their breach-
of-contract claim because a disputed question of fact existed
as to whether the roof damage was caused by wind.
This Court agrees with Alfa that the Joneses' claim is
distinguishable from those in White because in White there was
no question as to the cause of the roof damage. As this Court
has previously held in regard to a judgment as a matter of
law, "'the ultimate question is whether the nonmovant has
presented sufficient evidence to allow the case or the issue
to be submitted to the jury for a factual resolution.'" State
Farm Fire & Cas. Co. v. Williams, 926 So. 2d 1008, 1012 (Ala.
1060179
29
2005) (quoting Delchamps, Inc. v. Bryant, 738 So. 2d 824, 830
(Ala. 1999)). In other words, the nonmovant must present
substantial evidence in order to withstand a judgment as a
matter of law. We conclude that this matter is analogous to
Adams, supra, and Chastain, supra, because it is apparent that
Ralph Jones's report creates a question of material fact that
would preclude the Joneses from receiving a preverdict
judgment as a matter of law on the underlying breach-of-
contract claim. Accordingly, we affirm the summary judgment
on the Joneses' "normal" bad-faith claim.
2. "Abnormal" bad faith
The Joneses also argue that the trial court erred in
entering a summary judgment for Alfa on their "abnormal" bad-
faith claim. They argue that Alfa intentionally or recklessly
failed to investigate the claim because neither Ralph Jones
nor Bradshaw ever inspected the roof of the Joneses' house or
their attic. Specifically, they argue that Ralph Jones
focused exclusively on the foundation to the exclusion of all
evidence available to him even though they had made a specific
claim for roof damage and the hurricane had blown a tree onto
the eave of their house. They also argue that neither Ralph
1060179
30
Jones nor Bradshaw gathered any "before and after" evidence
from the Joneses or from any other source. The Joneses note
that their expert witness, Andrew Beverly, stated that "[a]ny
investigation by Alfa that
did not
include
the above-described
activities
would
not
satisfy
proper
claims
handling
practice."
In State Farm Fire & Casualty Co. v. Slade, 747 So. 2d
293 (Ala. 1999), this Court addressed a similar situation. In
Slade, a retaining wall attached to the insureds' house
collapsed after it was struck by lightning, causing the ground
around the pool area to give way. The insureds subsequently
noticed cracking in the ceilings and interior and exterior
walls of their house, and they informed their insurer of the
cracks. The insured also had three separate firms determine
what had caused the cracks, and all three reports indicated
that the cracks were caused by settling and sifting of the
soil beneath the house, which was caused by the collapse of
the retaining wall. The insurer hired a structural engineer
to inspect the house, but the insurer did not inform the
structural engineer about the lightning strike nor tell the
engineer that it was the insurer's claim-handling policy to
attempt to find coverage for the insured. The engineer was
1060179
31
not qualified to conduct nor did he conduct an investigation
regarding possible lightning damage. After visiting the
property with the structural engineer, the insurer's claims
superintendent sent the insureds a reservation-of-right
letter. The engineer concluded that the damage to the house
was the result of "post-construction differential foundation
settlement"; subsequently the insurer denied the insureds'
claim. However, the insurer did not communicate this to the
insureds. Instead, the insurer refused to give the insureds
a copy of the engineer's report and continued to hire more
engineers to investigate, even telling one engineer to
investigate the property "with the purpose being to defend the
insurance company against any claim of lightning-related,
settlement, or structural damage." Over five months after
deciding to deny the claim, the insurer wrote a formal denial
letter to the insureds. The insureds then sued the insurer,
alleging various claims, including a claim of abnormal bad-
faith failure to investigate. In affirming the trial court's
denial of the insurer's motion for a judgment as a matter of
law, this Court observed:
"'The absence of a debatable reason not to pay
a claim cannot be grounded on the vagaries of
1060179
32
construction of an ambiguity.' [Employees' Benefit
Ass'n v.] Grissett, 732 So. 2d [968,] 977 [(Ala.
1998)]. An insurer can be liable for the tort of
bad faith when it fails to properly investigate the
insured's claim. Thomas [v. Principal Fin. Group,
556 So. 2d 735 (Ala. 1990)]. Here, the [insureds]
produced substantial evidence, in the form of expert
testimony, indicating that the term 'dwelling' did
include their retaining wall. They also presented
substantial evidence indicating that [the insurer]
did not investigate their claim properly. The
[insured] produced evidence indicating that [the
insurer] never, in the course of its investigation,
sent to their home someone who was qualified to
conduct a lightning investigation. The [insureds]
presented evidence indicating that [the insurer]
never interviewed any of the witnesses present on
the day lightning struck their retaining wall. The
[insureds] presented expert testimony indicating
that these omissions amounted to an improper
investigation, on the basis that an investigation of
a claim such as the [insureds] made required the use
of a lightning expert. The [insureds] also
presented evidence indicating that [the insurer] did
not investigate lightning as a cause. The
[insureds] produced evidence indicating that [the
insurer] told its engineer ... to investigate a
'possible soil problem' and that it did not tell
[the engineer] about the lightning strike. This
evidence conflicted with [the insurer's] 'Good Faith
Claims Handling' video, which was admitted into
evidence and which contained a statement that [the
insurer's] claims-handling policy was to attempt to
find coverage.
"This evidence, the [insureds] say, shows that
[the insurer] never investigated the possibility
that lightning directly struck their dwelling, a
fact, which if proven, would negate the application
of the earth-movement exclusion. The [insureds]
maintain that this failure created a question of
fact
as
to
whether
[the
insurer]
properly
1060179
33
investigated their claim, and, therefore, that the
trial court properly submitted this portion of their
bad-faith claim to the jury. We agree.
"Furthermore, [the insurer's] argument on this
point, i.e., that it cannot be held liable because
it believes it properly investigated noncovered
events and found evidence that noncovered events
caused the [insureds'] loss, is unacceptable. An
insurance company's duty to investigate does not
extend only to those events that are not covered.
As this Court stated in [Aetna Life Insurance Co.
v.] Lavoie, 505 So. 2d [1050,] 1052-53 [(Ala.
1987)], an insurance company has a 'responsibility
to marshal all ... facts' necessary to make a
determination as to coverage 'before its refusal to
pay.' (Emphasis in original.) This duty must
include a duty to investigate a covered event that
an insured claims has caused his loss. Otherwise,
the duty to properly investigate, imposed by the law
regarding the tort of bad faith and recognized in
[Gulf Atlantic Life Insurance Co. v.] Barnes, [405
So. 2d 916 (Ala. 1981), would be meaningless.
Therefore, we reject [the insurer's] contention, and
we hold that this portion of the [insureds']
bad-faith claim was properly submitted to the jury."
Slade, 747 So. 2d at 315-16.
Similarly, even though the Joneses filed a claim with
Alfa for damage to their roof, even though the roof had
clearly visible damage from the hurricane, and even though the
Joneses contended that the damage to their house was caused by
the hurricane, neither Bradshaw nor Ralph Jones inspected the
roof or the attic during their investigation of the Joneses'
claim. It was not until after the Joneses' house had been
1060179
34
extensively damaged by fire and after Alfa had canceled the
Joneses' farm owner's policy that Alfa sent Ralph Jones, along
with three other engineers, to the Joneses' house to reinspect
the house, including the charred attic and roof. As Alfa's
attorney
admitted
during
oral
argument
before
this
Court,
Alfa
sent the engineers to the Joneses' house after the fire out of
fear that litigation may arise because of Alfa's denial of the
Joneses' claim following Hurricane Opal, its cancellation of
the Joneses' policy, and the fire damage to the Joneses'
house.
The following facts taken as a whole create a jury
question. After Hurricane Opal, Alfa never investigated any
records it had of the condition of the Joneses' house before
the hurricane. The record reflects that Alfa never contacted
a realtor who visited the Joneses' house three days before
Hurricane Opal
made landfall,
even though,
according
to
Harold
Jones, Bradshaw had inquired about purchasing the Joneses'
residence. Alfa never inquired of the Joneses as to who would
have seen their house before Hurricane Opal and never
attempted to interview anyone who may have visited the
Joneses' house before Hurricane Opal. Alfa never considered
1060179
Alfa argues to this Court that "Sanders was simply
3
without the training to know these problems existed" when he
conducted the "rewrite" inspection. (Alfa's brief, p. 53.)
This argument disregards the question of fact that an
untrained eye can observe cracks in drywall and in brick
veneer that were evident to the Joneses.
35
its own "rewrite" inspection of the Joneses' house, including
photographs of the exterior of the house and never inquired of
Sanders, its own employee, as to the condition of the Joneses'
house when he conducted the "rewrite" inspection, even though
Sanders testified that he did not recall seeing any cracks in
the interior or exterior walls of the Joneses' house when he
conducted the "rewrite" inspection three months before
Hurricane Opal.3
As this Court observed in Slade, "an insurance company
has a 'responsibility to marshal all ... facts' necessary to
make a determination as to coverage 'before its refusal to
pay.' ... This duty must include a duty to investigate a
covered event that an insured claims has caused his loss."
747 So. 2d at 316. Considering the evidence contained in the
record that is before this Court, there is certainly a
question of fact as to whether Alfa met its duty to marshal
all facts necessary to make a determination as to coverage
1060179
36
before it denied the Joneses' claim. Thus, the trial court
erred in granting Alfa's motion for a summary judgment as to
the Joneses' claims of "abnormal" bad-faith failure to
properly investigate the Joneses' insurance claim and failure
to investigate the condition of the house before Hurricane
Opal. We therefore reverse the summary judgment entered by
the trial court in favor of Alfa on the "abnormal" bad-faith
claim.
IV. Conclusion
We conclude that a question of material fact exists as to
when the statutory limitations period began to run and
prohibits the trial court from entering a partial summary
judgment on the Joneses' bad-faith claims based on Alfa's
argument that the Joneses failed to file their action before
the expiration of the statutory limitations period. Thus, the
Joneses' bad-faith claims were not barred by the statute of
limitations. Because Alfa failed to properly investigate the
Joneses' claim and failed to properly investigate the
condition of the Joneses' house before Hurricane Opal, the
trial court erred in entering partial summary judgment in
favor of Alfa as to the "abnormal" bad-faith claim brought by
1060179
37
the Joneses. However, the trial court's summary judgment was
proper as to the Joneses' "normal" bad-faith claim. The
summary judgment is affirmed in part an reversed in part, and
this case is remanded for proceedings consistent with this
opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Lyons, Woodall, and Parker, JJ., concur.
See, Smith, and Murdock, JJ., concur in part and concur
in the result.
Stuart and Bolin, JJ., concur in the result.
1060179
38
SEE, Justice (concurring in part and concurring in the
result).
I concur in the main opinion except for Part III.B.2, as
to which I concur only in the result.
Murdock, J., concurs.
1060179
39
SMITH, Justice (concurring in part and concurring in the
result).
I concur in the main opinion except for Part III.B.2, as
to which I concur only in the result. | June 13, 2008 |
3438cc8d-49e4-4ea7-be46-ced1fc0d7086 | Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Eric Rodney Hammonds v. State of Alabama) | N/A | 1060203 | Alabama | Alabama Supreme Court | REL:06/13/2008
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, 2007-2008
_________________________
1060203
_________________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Eric Rodney Hammonds
v.
State of Alabama)
(Mobile Circuit Court, CC-04-3840, CC-04-3841,
CC-04-3842, and CC-04-3843;
Court of Criminal Appeals, CR-04-1699)
BOLIN, Justice.
The State of Alabama petitioned this Court for a writ of
certiorari to review whether the Court of Criminal Appeals
1060203
2
erred in reversing the trial court's judgment convicting Eric
Rodney Hammonds of one count of reckless murder and two counts
of second-degree assault. We granted certiorari review. For
the reasons discussed below, we reverse the judgment of the
Court of Criminal Appeals.
Facts and Procedural History
The Court of Criminal Appeals set out the following
facts:
"In case number CC-04-3840, the appellant, Eric
Rodney Hammonds, was indicted for reckless murder
pursuant to § 13A-6-2(a)(2), Ala. Code 1975, for the
death of Rita Michelle Broglen. In case number CC-
04-3841, he was indicted for first-degree assault
pursuant to § 13A-6-20(a)(3), Ala. Code 1975, with
regard to injuries sustained by Stephanie Norman.
In case number CC-04-3842, he was indicted for
first-degree assault pursuant to § 13A-6-20(a)(3),
Ala. Code 1975, with regard to injuries sustained by
Elisha Danielle Allison. Finally, in case number
CC-04-3843, he was indicted for leaving the scene of
an accident pursuant to § 32-10-1, Ala. Code 1975.
The jury found [Hammonds] guilty of reckless murder
pursuant to § 13A-6-20(a)(2), Ala. Code 1975, in
case number CC-04-3840 and of leaving the scene of
an accident in case number CC-04-3843. In case
numbers CC-04-3841 and CC-04-3842, the jury found
him guilty of the lesser included offenses of
second-degree assault pursuant to § 13A-6-21(a)(3),
Ala.
Code
1975.
The
trial
court
sentenced
[Hammonds] to serve consecutive terms of ninety-nine
years in prison on the reckless murder conviction,
ten years in prison on each of the second-degree
assault convictions, and one year in the Mobile
County Metro Jail on the leaving the scene of an
1060203
3
accident conviction. [Hammonds] filed a 'Defendant's
Motion for Judgment of Acquittal Notwithstanding the
Verdict, or in the Alternative, Motion for New
Trial,'
which
the
trial
court
denied
after
conducting a hearing. This appeal followed.
"The State presented evidence that, during the
evening of March 7, 2004, and the early morning
hours of March 8, 2004, [Hammonds] was drinking at
Jewel's Lounge; that [Hammonds] left Jewel's Lounge
and got into his Nissan truck; that, as [Hammonds]
was leaving the parking lot, he hit a vehicle that
belonged to Michael Havard; that Michael Havard told
[Hammonds] that he had hit his vehicle; and that
[Hammonds] [ran a red light as he left the parking
lot], and proceeded onto Lott Road. The State also
presented evidence that [Hammonds] was traveling
south on Lott Road; that Bobby Smith and his wife
were in a vehicle that was traveling north on Lott
Road; that Stephanie Norman was driving a vehicle
that was traveling north on Lott Road behind Smith's
vehicle; that Rita Michelle Broglen, Elisha Danielle
Allison, Cassie Peacock, and Sheila Patton were in
the vehicle with Norman; that, at some point,
[Hammonds] crossed the center line of Lott Road and
was in the northbound lane traveling south; that
Smith saw [Hammonds's] vehicle in his lane and
swerved off of the road; that [Hammonds's] vehicle
hit the back of Smith's vehicle; that Norman saw
Smith's vehicle swerve off of the road and then saw
headlights in her lane; that Norman tried to swerve
out of the way; and that [Hammonds's] vehicle hit
the vehicle Norman was driving. The State further
presented evidence that Broglen died instantaneously
as a result of the injuries she received during the
accident; that Allison's pelvis was fractured; and
that Norman's left heel was crushed. Finally, the
State presented evidence that [Hammonds's] blood
alcohol content at the time of the accident was at
least 0.195."
1060203
4
Hammonds raised several arguments on appeal, including an
argument that his conviction for reckless murder was
inconsistent with his convictions for second-degree assault.
On April 28, 2006, the Court of Criminal Appeals issued an
opinion holding that the convictions were inconsistent
because, it reasoned, reckless murder is murder committed
under circumstances manifesting an extreme indifference to
human life while recklessly engaging in conduct that created
a grave risk of death to another person whereas Hammonds's
second-degree-assault convictions were based on recklessness
alone. Hammonds v. State, [Ms. CR-04-1699, April 28, 2006]
So. 2d (Ala. Crim. App. 2006). The Court of Criminal
Appeals also held that the offenses of reckless murder and
second-degree assault were mutually exclusive because they
"were based on one course of conduct and one set of
circumstances." So. 2d at . The court concluded that
because the jury found Hammonds guilty of the lesser-included
offense of second-degree assault, it could not find him guilty
of reckless murder. The Court of Criminal Appeals reasoned:
"The jury found [Hammonds] guilty of the
reckless murder of Broglen pursuant to § 13A-6-
20(a)(2), Ala. Code 1975, and guilty of the lesser
included offenses of second-degree assault with
1060203
5
regard to the injuries sustained by Norman and
Allison. All three of those convictions arose from
the automobile accident in which Broglen was killed
and Norman and Allison were injured, and all three
of the victims were in the same vehicle at the time
of the accident. Therefore, all three convictions
were based on one course of conduct and one set of
circumstances.
"By finding [Hammonds] guilty of reckless
murder,
the
jury
found
that
[Hammonds]
had
recklessly engaged in conduct that created a grave
risk of death to another person and that [Hammonds]
had acted under circumstances manifesting extreme
indifference to human life. However, by finding
[Hammonds] guilty of the lesser included offense of
second-degree assault in case numbers CC-04-3841 and
CC-04-3842, the jury implicitly acquitted [Hammonds]
of first-degree assault in both of those cases. See
Ex parte Dorsey, 881 So. 2d 533, 538 (Ala. 2003)
(holding that '"[t]he conviction for a lesser
included offense is an implied acquittal as to the
greater offense. Jeffers v. United States, 432 U.S.
137, 97 S. Ct. 2207, 53 L. Ed. 2d 168 (1977)." Ex
parte Ziglar, 675 So. 2d 543, 545 (Ala. Crim. App.
1996).'). Thus, although the jury found that
[Hammonds] acted recklessly in case numbers CC-04-
3841 and CC-04-3842, it also implicitly found that
he did not act under circumstances manifesting an
extreme indifference to human life and that he did
not engage in conduct that created a grave risk of
death to another person. Therefore, the jury found
two distinct degrees of culpability for one course
of conduct that arose from one set of circumstances,
and the verdict in case number CC-04-3840 was
inconsistent with the verdicts in case numbers CC-
04-3841 and CC-04-3842. Cf. Carter [v. State, 843
So. 2d 812 (Ala. 2002)]. Because the jury
implicitly acquitted [Hammonds] of acting under
circumstances manifesting an extreme indifference to
human life and of engaging in conduct that created
a grave risk of death to another in case numbers CC-
1060203
6
04-3841 and CC-04-3842, he could not be found guilty
of acting under circumstances manifesting an extreme
indifference to human life and of engaging in
conduct that created a grave risk of death to
another in case number CC-04-3840. See Heard v.
State, [Ms. CR-01-1810, March 18, 2005] ___ So. 2d
___ (Ala. Crim. App. 2002) (opinion on remand from
Supreme
Court);
Dorsey, supra. Consequently,
[Hammonds]'s reckless murder conviction must be
reversed.
"However, the trial court instructed the jury on
the lesser included offense of reckless manslaughter
pursuant to § 13A-6-3(a)(1), Ala. Code 1975, and the
jury found that [Hammonds] had acted recklessly in
case numbers CC-04-3841 and CC-04-3842. Also, the
evidence
presented
during
the
trial
clearly
supported a conviction for the lesser included
offense of reckless manslaughter. 'Appellate courts
have the "inherent authority to reverse a conviction
while at the same time ordering an entry of judgment
on a lesser included offense." Edwards v. State,
452 So. 2d 506, 507 (Ala. Crim. App. 1983), aff'd,
452 So. 2d 508 (Ala. 1984).' Campbell v. State,
555 So. 2d 252, 254 (Ala. Crim. App. 1989).
Accordingly, we remand this case to the trial court
with instructions that it enter a judgment of guilty
of
the
lesser
included
offense
of
reckless
manslaughter
and
impose
a
sentence
for
that
offense."
So. 2d at (footnote omitted).
After remand, the State filed an application for
rehearing, which the Court of Criminal Appeals overruled. On
November 3, 2006, the State filed a petition for a writ of
certiorari, arguing that this Court should revisit and
overrule its decision in Ex parte Dorsey, 881 So. 2d 533 (Ala.
1060203
7
2003), because the Court of Criminal Appeals tacitly relied
upon Dorsey to conclude that Hammonds had preserved the
argument that the verdicts convicting him of reckless murder
and second-degree assault were mutually exclusive, even though
Hammonds failed to object to the verdicts until he filed his
written motion for a new trial. The State also argued that
the Court of Criminal Appeals' opinion conflicted with United
States v. Powell, 469 U.S. 57 (1984), Ex parte Dorsey, supra,
Carter v. State, 843 So. 2d 812 (Ala. 2002), and Grikis v.
State, 552 So. 2d 187 (Ala. Crim. App. 1989), regarding
mutually exclusive verdicts.
While the State's petition for a writ of certiorari was
pending, this Court released Heard v. State, [Ms. 1041265,
January 12, 2007] So. 2d (Ala. 2007). In Heard, the
defendant was indicted on two counts of capital murder (Count
I, murder committed during the course of a robbery, and Count
II, murder committed by the use of a deadly weapon fired
outside a dwelling) for the death of one victim. He was
convicted of felony murder as a lesser-included offense under
Count I and of capital murder under Count II. The Court of
Criminal Appeals reversed the defendant's capital-murder
1060203
8
conviction and sentence reasoning that, based on Dorsey, the
conviction for capital murder was inconsistent with the
conviction for felony murder. This Court granted the State's
petition for the writ of certiorari and reversed the judgment
of the Court of Criminal Appeals, holding that although the
verdicts were inconsistent, such inconsistent verdicts are
permissible in a criminal trial, even though mutually
exclusive verdicts are not. Although the State in Heard had
raised the issue of when the argument that verdicts are
mutually exclusive must be raised, we did not address that
issue because the verdicts in that case were not mutually
exclusive. Heard, So. 2d at n. 4. Additionally, this
Court in Heard overruled that portion of Dorsey that held that
verdicts finding a defendant guilty of both felony murder and
capital murder were legally inconsistent because one murder
cannot be both unintended and intended (i.e., felony murder
does not require proof that the defendant unintentionally
killed the victim, only that the defendant intentionally
committed the underlying felony).
We granted the State's petition for a writ of certiorari
in the present case in order to determine if the Court of
1060203
9
Criminal Appeals' opinion conflicts with this Court's holding
in Heard.
Analysis
The dispositive issue is whether the verdicts convicting
Hammonds of both reckless murder and second-degree assault are
inconsistent verdicts or mutually exclusive verdicts. In
Heard, supra, this Court clarified the difference between
verdicts that are merely inconsistent and ones that are
mutually exclusive when a defendant is convicted of multiple
crimes:
"Heard was found guilty of more than one offense
based on crimes against one victim.
"....
"Confusion
exists
throughout
Alabama
courts
over
the difference between inconsistent verdicts and
mutually exclusive verdicts. 'The general rule is
that there need be no rational compatibility between
the verdicts on the several counts of an indictment.
The exception to this rule is where the jury returns
multiple convictions as to crimes which are mutually
exclusive of each other. Conway v. State, 489 So.
2d 641, 642 (Ala. Cr. App. 1986)....' Grikis v.
State, 552 So. 2d 187, 187 (Ala. Crim. App. 1989).
This
seemingly
straightforward
rule
has
been
somewhat difficult to apply because of confusion
over
the
meaning
of
the
terms
'inconsistent
verdicts' and 'mutually exclusive verdicts.'
"....
1060203
10
"... [M]utually exclusive verdicts are the
result of two positive findings of fact that cannot
logically coexist. In other words, it is legally
impossible for the State to prove the elements of
both crimes. In order to determine whether the
guilty verdicts are mutually exclusive as a matter
of law, the alleged underlying offenses or acts must
be carefully scrutinized. The two guilty verdicts
are not mutually exclusive if no element of one
crime necessarily negates an element of the other.
"Mutually exclusive
verdicts
exist
when
a
guilty
verdict on one count logically excludes a guilty
verdict on another count. In contrast, inconsistent
verdicts can exist where there is a verdict of
guilty and another of not guilty, as when there are
two guilty verdicts that are not mutually exclusive.
Inconsistent criminal verdicts are permissible;
mutually exclusive verdicts are not.
"There has been much confusion as to whether the
verdicts
returned
against Heard were mutually
exclusive
or
merely
inconsistent.
Heard
was
convicted of both capital murder and felony murder.
According to Alabama law, a defendant must have the
intent to kill in order to be found guilty of a
capital offense. § 13A-5-40(b), Ala. Code 1975; Ex
parte Woodall, 730 So. 2d 652, 657 (Ala. 1998)('No
defendant can be found guilty of a capital offense
unless he had an intent to kill, and that intent to
kill cannot be supplied by the felony-murder
doctrine.'). Felony murder, on the other hand, does
not require the specific intent to kill; it requires
only the intent to commit the underlying felony. §
13A-6-2(a)(3), Ala. Code 1975; Mitchell v. State,
706 So. 2d 787 (Ala. Crim. App. 1997). The absence
of an intent to kill, however, is not necessarily an
element of felony murder, as contrasted with the
intent to kill, which is an element of capital
murder.
1060203
11
"In other words,
a
felony-murder
conviction
does
not require proof that the defendant unintentionally
killed the victim, only that the defendant intended
to commit the underlying felony. Therefore, it is
possible that a defendant intended to kill the
victim (the element necessary for the capital
conviction) while at the same time intending to
commit an underlying felony (the element necessary
for the felony-murder conviction). Therefore, the
most that can be said of the verdicts finding Heard
guilty both of capital murder and of felony murder
is that they may be merely inconsistent. These two
verdicts are not mutually exclusive; they do not
contain mutually exclusive essential elements.
"Because
these
verdicts
are
not
mutually
exclusive, the verdicts should stand; '[t]hat the
verdict may have been the result of compromise, or
of a mistake on the part of the jury, is possible.
But verdicts cannot be upset by speculation of
inquiry into such matters.' Dunn [v. United
States], 284 U.S. [390,] 394 [(1932)]."
So. 2d at .
"'Inconsistency'
between
verdicts
is
generally
understood
to mean some logical impossibility or improbability implicit
in the jury's findings on several indictments or informations
tried together or as between several counts of a single
criminal accusation without severance of the counts." State
v. Purdie, 174 P.3d 881, 883 (Idaho Ct. App. 2007). An
inconsistent verdict on different counts of a multiple-count
indictment is permissible. A jury verdict on each count is
independent; a verdict of either conviction or acquittal of
1060203
12
one has no effect or bearing on another. A jury's verdict may
be inconsistent or even illogical but nonetheless permissible
if it is supported by sufficient evidence. The rationale for
allowing inconsistent verdicts is
"(1) there is no way to know why the jury rendered
an inconsistent verdict, and therefore such verdicts
must be upheld in the interest of protecting lenity;
(2) since the government cannot appeal inconsistent
acquittals, it would be unfair to allow a defendant
to appeal inconsistent convictions; and (3) the
requirement of a sufficiency of the evidence review
on appeal prevents any harm that could result from
an inconsistent verdict."
State v. Purdie, 174 P.3d at 884 (citing United States v.
Powell, 469 U.S. 57, 65-69 (1984) (footnote omitted)). This
Court will not disturb guilty verdicts on the basis of
apparent inconsistencies so long as there is sufficient
evidence to support the verdicts. However, mutually exclusive
verdicts are contradictory and cannot be reconciled. Verdicts
are mutually exclusive if the existence of any of the elements
of one offense negates the existence of any of the elements
for another offense of which the defendant also stands
convicted.
In the present case, Hammonds was indicted for reckless
murder, which is defined as murder committed "[u]nder
1060203
13
circumstances manifesting extreme indifference to human life"
by "recklessly engag[ing] in conduct which creates a grave
risk of death to a person other than himself or herself," and
"thereby caus[ing] the death of another person." § 13A-6-
2(a)(2). He was also indicted on two counts of first-degree
assault, which is defined as assault committed "[u]nder
circumstances manifesting an extreme indifference to the value
of human life," by "recklessly engag[ing] in conduct which
creates a grave risk of death to another person, and thereby
causes serious physical injury to any person." § 13A-6-
20(a)(3). However, Hammonds was ultimately convicted of
reckless murder and second-degree assault arising out of the
automobile accident that killed one victim and injured two
others. Although three victims were involved, only one course
of conduct was involved (Hammonds's driving his automobile
while he was under the influence of alcohol), and we must now
determine whether the verdicts finding Hammonds guilty of
reckless murder and second-degree assault arising from this
one course of conduct are mutually exclusive or merely
inconsistent.
1060203
14
With regard to reckless murder, § 13A-6-2(a), Ala. Code
1975, provides:
"(a) person commits the crime of murder if he or
she does any of the following:
"....
"(2) Under circumstances manifesting extreme
indifference to human life, he or she recklessly
engages in conduct which creates a grave risk of
death to a person other than himself or herself, and
thereby causes the death of another person."
With regard to second-degree assault, § 13A-6-21(a)(3),
Ala. Code 1975, provides:
"(a) person commits the crime of assault in the
second degree if the person does any of the
following:
"....
"(3) He or she recklessly causes serious
physical injury to another person by means of a
deadly weapon or a dangerous instrument."
The Court of Criminal Appeals stated in King v. State,
505 So. 2d 403, 407 (Ala. Crim. App. 1987), with regard to
reckless murder:
"Section 13A-6-2(a)(2) requires the prosecution
to
prove
conduct
which
manifests
an
extreme
indifference to human life, and not to a particular
person
only.
Its
gravamen
is
the
act
of
reckless[ness] by engaging in conduct which creates
a
grave
or
very
great
risk
of
death
under
circumstances 'manifesting extreme indifference to
1060203
15
human life.' What amounts to 'extreme indifference'
depends on the circumstances of each case, but some
shocking, outrageous, or special heinousness must be
shown. Commentary to § 13A-6-2(a)(2); Northington
[v. State, 413 So. 2d 1169 (Ala. Crim. App. 1981)].
A person acts recklessly when he is aware of and
consciously
disregards
a
substantial
and
unjustifiable risk. § 13A-2-2(3). 'The risk must be
of such nature and degree that disregard thereof
constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in
the situation.' Id. To bring appellant's conduct
within the murder statute, the State is required to
establish that his act was imminently dangerous and
presented a very high or grave risk of death to
others and that it was committed under circumstances
which evidenced or manifested extreme indifference
to human life. The conduct must manifest extreme
indifference to human life generally. Ex parte
McCormack, [431 So. 2d 1340 (Ala. Crim. App. 1983)];
Northington, supra. The crime charged here differs
from intentional murder in that it results not from
a specific, conscious intent to cause the death of
any particular person, but from an indifference to
or disregard of the risks attending appellant's
conduct."
(Emphasis added.)
The Court of Criminal Appeals here concluded that the
jury
rejected
a
finding
that
Hammonds
acted
under
circumstances manifesting an extreme indifference to human
life when it found Hammonds guilty of the lesser-included
offense of second-degree assault instead of first-degree
assault as charged. We disagree. A finding that Hammonds was
guilty of reckless murder required that the jury find that
1060203
16
Hammonds "1) consciously disregard[ed] the known substantial
and unjustifiable risks to the public at large that were
associated with driving his vehicle on the public roads while
under the influence of alcohol; 2) [drove] his vehicle while
under the influence of alcohol; 3) in doing so, creat[ed] a
grave risk of death to someone other than himself; and 4)
thereby caus[ed] the death of .... another person." Hammonds
v. State, So. 2d at (Shaw, J., concurring in part and
dissenting in part). Second-degree assault required that the
jury find that Hammonds 1) consciously disregarded the known
substantial and unjustifiable risks to the public at large
that are associated with driving his vehicle on the public
roads while under the influence of alcohol; 2) drove his
vehicle while under the influence of alcohol; and 3) thereby
caused serious physical injury to another person by means of
a deadly weapon or dangerous instrument. At most, the
verdicts have some factual inconsistency in that the jury
found that Hammonds acted under circumstances manifesting an
extreme indifference to human life by creating a grave risk of
death to his murder victim, but not to his two assault
victims. As Judge Shaw points out, this inconsistency could
1060203
17
possibly be attributed to confusion between language in the
indictment and the trial court's jury instructions.
"Consistency in the verdict is not necessary.
Each count in the indictment is regarded as if it
was a separate indictment. ... That the verdict may
have been the result of compromise, or of a mistake
on the part of the jury, is possible. But verdicts
cannot by upset by speculation or inquiry into such
matters."
Dunn v. United States, 284 U.S. 390, 393-94 (1932).
Conclusion
The judgment of the Court of Criminal Appeals is
reversed, and the cause is remanded for proceedings consistent
with this opinion.
REVERSED AND REMANDED.
See, Lyons, Woodall, Stuart, Smith, Parker, and Murdock,
JJ., concur.
Cobb, C.J., recuses herself. | June 13, 2008 |
2d01b5c5-fc93-4596-9c83-88746ad3b970 | Henry Murry v. City of Abbeville | N/A | 1070125 | Alabama | Alabama Supreme Court | REL:06/06/2008
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, 2007-2008
_________________________
1070125
_________________________
Henry Murry
v.
City of Abbeville
Appeal from Henry Circuit Court
(CV-05-42)
BOLIN, Justice.
The plaintiff, Henry Murry, appeals from a summary
judgment in favor of the defendant, the City of Abbeville
("the City"). We reverse and remand.
1070125
2
Facts and Procedural History
In 1992, the Alabama Legislature enacted Act No. 92-608,
Ala. Acts 1992, codified at § 34-14A-1 et seq., Ala. Code 1975
("the Act"), for the purpose of regulating the residential
home-building and remodeling industries. The Act created the
Home Builders Licensure Board, § 34-14A-3, set certain
licensing requirements for residential home builders, §§ 34-
14A-5 and -7, provided a procedure for the revocation or
suspension of licenses, § 34-14A-8, and established a
Homeowner's Recovery Fund for the purpose of paying a
homeowner for damage sustained as the direct result of the
conduct of a licensee under the Act, § 34-14A-15. At the
times relevant to this appeal, the Act provided:
"The county commissions of the several counties
are authorized and empowered to adopt building laws
and codes by ordinance which shall apply in the
unincorporated areas of the county. The building
laws and codes of the county commission shall not
apply within any municipal police jurisdiction, in
which that municipality is exercising its building
laws or codes, without the express consent of the
governing body of that municipality. The building
laws and codes of the county commission may apply
within the corporate limits of any municipality with
the express consent of the governing body of the
municipality. The county commission may employ
building inspectors to see that its laws or codes
are
not
violated
and
that
the
plans
and
specifications for buildings are not in conflict
1070125
In 2006, this provision of the Act was modified slightly
1
by Act No. 2006-105, Ala. Acts 2006, § 1. The 2006 amendment
added a subsection (a), inserted a subsection (b) designator
before the quoted paragraph, and designated the final two
sentences of that paragraph as subsections (c) and (d),
respectively.
In 2006, this provision of the Act was repealed by § 3
2
of Act No. 2006-105.
3
with the ordinances of the county and may exact fees
to be paid by the owners of the property inspected.
Utilizing the same authority and procedures as
municipalities pursuant to Sections 11-53A-20 to 11-
53A-26,
inclusive, the county commissions may
condemn buildings, parts of buildings, or structures
dangerous to the public and prohibit the use thereof
and abate the same as a nuisance. The county
commissions,
municipalities,
and
other
public
entities are hereby authorized to enter into mutual
agreements,
compacts,
and
contracts
for
the
administration and enforcement of their respective
building laws and codes."
§ 34-14A-12, Ala. Code 1975.
1
Section 34-14A-16 also provided:
"The provisions of this chapter shall not apply
to any county the population of which is 30,000 or
less according to the most recent federal decennial
census, unless the county commission of the county
irrevocably elects to have the county covered by
this chapter."
2
The City is located in Henry County, which in 1999 had a
population of less than 30,000. The Henry County Commission
elected in 1999 to have Henry County covered by the Act.
1070125
4
In April 2004, Murry hired Phillip Crawford of Southern
Trade Contractors, Inc., to do remodeling work on Murry's
house, which is located in the City. Murry asked Crawford if
he was a licensed home builder, and Crawford told him that he
was. Murry did not ask to see Crawford's home builder's
license. Crawford applied for and received a building permit
from the City on April 8, 2004, for remodeling work on Murry's
house.
After work had begun on Murry's house, Murry contacted
the City police department because he believed that he was
being "scammed" by Crawford. Murry based his belief on the
fact that Crawford had never actually finished any of the
remodeling work, yet he kept demanding money from Murry. The
police department contacted the Home Builders Licensure Board.
On June 30, 2004, the Home Builders Licensure Board
issued a "stop work" order against Crawford and Southern
Trade. The Board issued the order on the basis that
Crawford and Southern Trade were required to have a home
builder's license pursuant to § 34-14A-5, and neither had such
a license.
1070125
5
Murry contends that as a result of Crawford's allegedly
inadequate and incomplete work, he was required to hire
additional contractors to complete the remodeling job. On
June 2, 2005, Murry sued the City, alleging, among other
things, that the City was negligent under the Act by failing
to require proof of a home builder's license from Crawford
before it issued its building permit. Murry later amended his
complaint to add Crawford and Southern Trade as defendants.
On September 8, 2006, the City filed a motion for a
summary judgment, arguing that the Act does not apply to it.
Specifically, the City argued that it was not subject to the
Act even though the Henry County Commission elected to have
the County covered by the Act because § 34-14A-12 provided
that the Act applies only to the unincorporated areas of the
county. On June 22, 2007, Murry filed a motion for a summary
judgment, arguing that the Act was applicable to the City and
that the City breached its duty under the Act. On June 26,
2007, the trial court entered a summary judgment for the City
and denied Murry's summary-judgment motion. Murry filed a
petition for permission to appeal from an interlocutory order
pursuant to Rule 5(a), Ala. R. App. P. The trial court
1070125
6
granted Murry's petition, finding that an immediate appeal
from the summary-judgment order would materially advance the
ultimate termination of the litigation and would avoid
protracted and expensive litigation. On September 12, 2007,
this Court denied Murry's petition for permission to appeal.
On September 14, 2007, the trial court made the order granting
summary judgment in favor of the City final pursuant to Rule
54(b), Ala. R. Civ. P. Murry appeals.
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' showing
that a genuine issue of material fact exists. 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). 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).
Moreover, '[t]he trial court's ruling on a question
1070125
7
of law carries no presumption of correctness, and
this Court reviews de novo the trial court's
conclusion as to the appropriate legal standard to
be applied.' Dunlap v. Regions Fin. Corp., [Ms.
1060384, October 5, 2007] ___ So. 2d ___, ___(Ala.
2007) (citing Ex parte Graham, 702 So. 2d 1215, 1221
(Ala. 1997))."
Chapman Nursing Home, Inc. v. McDonald, [Ms. 1060543, November
16, 2007] So. 2d , (Ala. 2007).
Analysis
In the present case, the facts are undisputed and the
issue presents a pure question of law regarding the
interpretation of the Act. Specifically, the issue is whether
a municipality located within a county that has elected to be
covered by the Act is subject to the provisions of the Act
when § 34-14A-12 provides that "building laws and codes"
adopted by the county do not apply to a municipality located
within the county without the express consent of the governing
body of the municipality.
In Ex parte McCormick, 932 So. 2d 124, 132 (Ala. 2005),
this Court noted:
"In any case involving statutory construction,
our inquiry begins with the language of the statute,
and if the meaning of the statutory language is
plain, our analysis ends there. Ex parte Moore, 880
So. 2d 1131, 1140 (Ala. 2003) ('"'The cardinal rule
of statutory interpretation is to determine and give
1070125
8
effect
to
the
intent
of
the
legislature
as
manifested in the language of the statute.'"')
(quoting Ex parte Weaver, 871 So. 2d 820, 823 (Ala.
2003), quoting in turn Ex parte State Dep't of
Revenue, 683 So. 2d 980, 983 (Ala. 1996)). This
Court in DeKalb County LP Gas Co. v. Suburban Gas,
Inc., 729 So. 2d 270, 275-76 (Ala. 1998), explained:
"'In determining the meaning of a
statute, this Court looks to the plain
meaning of the words as written by the
legislature. As we have said:
"'"'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.'"'
"729 So. 2d at 275-76 (quoting Blue Cross & Blue
Shield v. Nielsen, 714 So. 2d 293, 296 (Ala. 1998),
additional citations omitted)."
The purpose of the Act is to protect the public by
regulating
the
home-building
and
private-dwelling-construction
industry by providing for the licensing of persons engaged in
home building and remodeling. § 34-14A-1. "Home builders may
pose significant harm to the public when unqualified,
1070125
Since it was amended in 2006 to repeal § 34-14A-16, the
3
Act applies to all counties.
9
incompetent, or dishonest home building contractors and
remodelers provide inadequate, unsafe or inferior building
services." § 34-14A-1. In 2004 when Murry hired Crawford, the
Act applied to all counties with a population greater than
30,000 and to those counties with a population of less than
30,000 if the county commission irrevocably elected to have
the county covered by the Act. § 34-14A-16. Before it issues
3
a license, the Home Builders Licensure Board examines the home
builder's experience, ability, character, business-related
financial condition, ability and willingness to serve the
public, and any other relevant information. § 34-14A-7.
At the times relevant to this appeal, the Act exempted
from its provisions the following:
"(1) Any employee of a licensee who does not
hold himself or herself out for hire or engage in
contracting, except as such employee of a licensee.
"(2) An authorized employee of the United
States, the State of Alabama, or any municipality,
county, or other political subdivision, if the
employee does not hold himself or herself out for
hire or otherwise engage in contracting except in
accordance with his or her employment.
1070125
10
"(3) General contractors holding a current and
valid license, issued prior to January 1, 1992,
under Sections 34-8-1 through 34-8-27.
"(4) Licensed real estate agents operating
within the scope of their respective licenses on
behalf of clients.
"(5) Owners of property when acting as their own
contractor and providing all material supervision
themselves, when building or improving one-family or
two-family residences on such property for the
occupancy or use of such owners and not offered for
sale.
"In any action brought under this chapter, proof
of the sale or offering for sale of such structure
by the owners of property, as provided in this
subdivision, within one year after completion of
same is presumptive evidence that the construction
was undertaken for the purpose of sale.
"(6) This chapter does not apply to mobile homes
or to any structure that is installed, inspected, or
regulated
by
the Alabama Manufactured Housing
Commission
or
the
repair,
improvement,
or
reimprovement of any such structure, and shall not
in any way change or interfere with the duties,
responsibilities, and operations of the Alabama
Manufactured
Housing Commission as defined in
Sections 24-4A-1 through 24-6-4.
"(7) The provisions of this chapter shall not
apply in those counties having populations of less
than 30,000 according to the most recent decennial
census provided however the county commissions of
such counties may irrevocably elect to have their
respective counties covered by the provisions of
this chapter in the same fashion and under the same
conditions as shall be applicable at the time of the
election."
1070125
Section 34-14A-6 was amended in 2006 to insert "licensed
4
engineers, and licensed architects" in subdivision (4) and to
delete subdivision (7). Act No. 2006-105, Ala. Acts 2006, §
1.
11
§ 34-14A-6. We note that nowhere in § 34-14A-6 did the
4
legislature exempt from the Act municipalities located within
a county subject to the Act.
Section 34-14A-12 provides that county commissions have
the authority to adopt by ordinance "building laws and codes"
that shall apply to the unincorporated areas of the county.
Section 34-14A-12 goes on to provide that the "building laws
and codes" adopted by the county may apply to any municipality
located within the county if the governing body of the
municipality expressly consents to the application of those
building laws and codes. The plain language of § 34-14A-12
does not exempt municipalities from the provisions of the Act.
Instead, the legislature created an exemption for "building
laws and codes" adopted by a county by ordinance. The phrase
"building laws and codes" refers to building guidelines or
standards, and the intent of the legislature was to ensure
that the building codes adopted by a county did not supplant
or replace any building codes adopted by a municipality unless
1070125
Murry asks this Court to order the trial court to enter
5
a summary judgment in his favor, i.e., to grant his summary-
judgment motion, which the trial court denied. However, Murry
is appealing from the trial court's summary judgment in favor
of the City. The trial court's denial of Murry's summary-
judgment motion is not before this Court.
12
the municipality expressly consented to operate under the
county's building codes.
Conclusion
In 2004 when Murry hired Crawford, the Act applied to
Henry County by virtue of the election in 1999 by the Henry
County Commission to be subject to the provisions of the Act.
The City is located in Henry County, and the county
commission, when it subjected the county to the Act, decided
that all the residents of Henry County, including those
residing in municipalities, should be protected by the
provisions of the Act. Accordingly, the summary judgment in
favor of the City is reversed and the cause remanded for
proceedings consistent with this opinion.
5
REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith,
Parker, and Murdock, JJ., concur. | June 6, 2008 |
96d5f5c2-a0e6-42e9-aeae-3c99dbc5e103 | Royal Automotive, Inc., et al. v. City of Vestavia Hills, Alabama; and City of Hoover, Alabama | N/A | 1061313 | Alabama | Alabama Supreme Court | REL: 05/23/2008
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, 2007-2008
_________________________
1061313
_________________________
Royal Automotive, Inc., et al.
v.
City of Vestavia Hills and City of Hoover
_________________________
1071152
_________________________
Trimensions, Inc.
v.
City of Vestavia Hills and City of Hoover
Appeals from Jefferson Circuit Court
(CV-04-5508 and CV-04-5560)
1061313; 1071152
2
LYONS, Justice.
Royal Automotive, Inc., Saturn of Birmingham, Inc.,
Vulcan
Lincoln-Mercury,
Inc.,
and
Trimensions,
Inc.
(collectively "the businesses"), sued the City of Vestavia
Hills and the City of Hoover in the Jefferson Circuit Court,
alleging trespass, nuisance, and negligent maintenance of a
natural waterway known as Patton Creek. The businesses'
claims arise from damage caused by the flooding of Patton
Creek in 2002. Vulcan-Lincoln Mercury also alleges damage
from a flood of Patton Creek that occurred in 2004. The
businesses appeal from a summary judgment in favor of Vestavia
and Hoover. We affirm.
I. Facts and Procedural History
Each of the businesses operates or has previously
operated in locations that are within the city limits of
Vestavia and near Patton Creek. Royal Automotive, Saturn of
Birmingham,
and
Vulcan
Lincoln-Mercury
are
automobile
dealerships whose operations are located at the intersection
of U.S. Highway 31, Interstate 65, Columbiana Road, and Tyler
Road. Trimensions is a collegiate-products manufacturer that
previously operated in the Southpark Shopping Center along
U.S. Highway 31. Patton Creek flows near the previous
1061313; 1071152
3
location of Trimensions, then behind the Vulcan Lincoln-
Mercury dealership, through the property on which Royal
Automotive and Saturn of Birmingham are located, and then
into Hoover.
The headwaters of Patton Creek originate on Shades
Mountain and flow southwesterly down the mountain--through
Vestavia, Hoover, and unincorporated areas of Jefferson
County–-before emptying into the Cahaba River. Specifically,
Patton Creek flows from Vestavia into Hoover, passes under the
Southland
Drive
bridge,
enters
unincorporated
Jefferson
County
for approximately one mile, and then re-enters Hoover near
Hummingbird Lane.
Vestavia asserts that Patton Creek existed before
Vestavia was incorporated as a municipality and that the area
where the businesses are or were located has served as a
natural flood basin for hundreds of years. In an affidavit,
Vestavia's hydrology expert, who created an official flood map
of Patton Creek in 2006, states that because the Patton Creek
flood basin is relatively short and wide and the hillsides
abutting the basin are quite steep, storm-water runoff tends
to concentrate quickly and thus flood surrounding areas,
including the areas where the businesses are or were located.
1061313; 1071152
4
The businesses and private citizens have frequently asked
Vestavia to clean and to maintain Patton Creek in order to
prevent the flooding of surrounding areas. In response to
these requests, Vestavia cleaned and dredged Patton Creek in
1985, 1996, and 2004. These dredgings included privately
owned portions of Patton Creek, such as the portion of Patton
Creek that traverses the Royal Automotive property. In 1985
Vestavia contracted with a construction company "for clearing
and grubbing, drainage ditch clean-out (approximately 17,000
cubic yards), some limited rock rip rap and grassing" of
Patton Creek for approximately $108,500. In 1996 Vestavia
paid the same construction company approximately $135,000 for
similar work on Patton Creek. In 2002 Vestavia also allocated
$142,560 for dredging Patton Creek; this dredging occurred in
the summer of 2004.
Aside from these three dredging projects, Vestavia
asserts that its only other maintenance of Patton Creek has
been removal of debris caught in ditches and channels of the
creek near city roads. However, the businesses assert that
Vestavia has also cleaned and inspected blocked culverts of
Patton Creek as often as once or twice a week, performed
storm-water maintenance on portions of Patton Creek when
1061313; 1071152
5
flooding impacted a public road, had a city employee walk
Patton Creek to check for drainage problems and beaver dams,
monitored the aggregate effect of upstream development on
storm-water runoff, and permitted developers to rechannel the
natural course of Patton Creek at the Olde Towne shopping
center. Vestavia asserts that it had no part in initiating or
directing the channeling of Patton Creek at the Olde Towne
shopping center. Vestavia acknowledges that developers of the
Olde Towne shopping center enlisted engineering firms to
straighten, widen, and deepen the portion of Patton Creek
flowing through the property on which the center is located.
Since 2000 Hoover asserts that it has cleaned portions of
Patton Creek on approximately four or five occasions in
response to complaints of residents living along the creek.
From about 1985 to 1995 Hoover periodically inspected and
cleaned Patton Creek in the Hummingbird Lane area. As part of
a 2004 public-works project, Hoover removed silt from two
partially blocked spans of the Southland Drive bridge. In
late 2004, Hoover also removed an island of silt in Patton
Creek a few hundred feet upstream from the Southland Drive
bridge at Vestavia's request. The businesses assert that
1061313; 1071152
6
Hoover has also removed or realigned rocks and sediment along
Patton Creek.
On September 22, 2002, Patton Creek overflowed its banks
and
damaged
the
businesses'
property,
particularly
automobiles
parked on the lots of Royal Automotive, Saturn of Birmingham,
and Vulcan Lincoln-Mercury. The businesses describe the
rainfall that occurred on September 22, 2002, as significant
and torrential. According to the businesses' meteorology
expert, the maximum 1-hour rainfall was 2.4 inches, which
translates to a 10-year rain event. The meteorology expert
also concluded that the maximum 3-hour rainfall was 4.57
inches and that the maximum 6-hour rainfall was 5.31 inches,
both of which translate to 50-year rain events. The
businesses' meteorology expert testified that rainfall over a
12-hour period on September 22, 2002, translated to a 25-year
rain event.
On July 26, 2004, as the result of heavy rainfall, Patton
Creek again overflowed its banks and damaged property at
Vulcan
Lincoln-Mercury. According to the businesses'
meteorology expert, the maximum 1-hour rainfall was 2.87
inches, which translates to between a 10-year and a 25-year
rain event. The meteorology expert also concluded that the
1061313; 1071152
A subrogation action by Motors Insurance Company, which
1
insures the inventory of Royal Automotive, Saturn of
Birmingham, and Vulcan Lincoln-Mercury (CV-05-684), was
consolidated with the present case. However, Motors Insurance
Company did not appeal the summary judgment entered against
it.
7
maximum 3-hour rain event was 3.58 inches, which translates to
a 10-year rain event. The businesses' meteorology expert
concluded that over five and a half hours the Patton Creek
drainage basin experienced 3.98 inches of rain.
The businesses timely filed both their notices of loss
with Vestavia and Hoover concerning the 2002 and 2004 floods
and their complaints seeking recovery from Vestavia and Hoover
for negligent maintenance of Patton Creek, nuisance, and
trespass. The Jefferson Circuit Court found that Vestavia
1
and Hoover did not have a duty to maintain Patton Creek and
entered a summary judgment in their favor. The trial court's
order stated that the businesses' negligence claims fail
because Vestavia and Hoover had no duty to maintain the creek;
therefore,
the
claims
of
nuisance
and
trespass
also
necessarily fail. See Hilliard v. City of Huntsville, 585 So.
2d 889, 893 (Ala. 1991) ("the viability of a negligence action
against a municipality ... determines the success or failure
1061313; 1071152
8
of a nuisance action based upon the same facts," citing § 11-
47-190, Ala. Code 1975). The businesses then appealed.
II. Standard of Review
"The standard by which this Court will review a
motion for summary judgment is well established:
"'The principles of law applicable to
a motion for summary judgment are well
settled. To grant such a motion, the trial
court must determine that the evidence does
not create a genuine issue 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. When the movant
makes a prima facie showing that those two
conditions are satisfied, the burden shifts
to the nonmovant to present "substantial
evidence" creating a genuine issue of
material fact. Bass v. SouthTrust Bank of
Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); § 12-21-12(d)[,] Ala. Code
1975. 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."
West v. Founders Life Assur. Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989).
"'In our review of a summary judgment,
we apply the same standard as the trial
court. Ex parte Lumpkin, 702 So. 2d 462,
465 (Ala. 1997). Our review is subject to
the caveat that we 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 (Ala.
1990).'"
1061313; 1071152
9
Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001)
(quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184
(Ala. 1999)).
III. Analysis
A. Contentions of the parties.
The businesses contend that the trial court improperly
entered a summary judgment in favor of Vestavia and Hoover
because, they argue, Vestavia and Hoover have both undertaken
a duty to maintain Patton Creek. The businesses recognize
that although a municipality in Alabama has no duty to create
or maintain a drainage system, this Court has held that "once
a municipality undertakes to either construct or maintain a
drainage system, a duty of care exists, and a municipality may
be liable for damages to a property owner whose property is
damaged as a result of the negligent construction or
maintenance of a drainage system by the City." Lott v. City
of Daphne, 539 So. 2d 241, 244 (Ala. 1989). The businesses
contend
that
they
have presented substantial evidence
indicating that Patton Creek is part of Vestavia's and
Hoover's drainage systems and that Vestavia and Hoover both
undertook maintenance of Patton Creek. Therefore, the
businesses argue that under Lott Vestavia's and Hoover's
1061313; 1071152
10
maintenance of Patton Creek imposes on them a continuing duty
to maintain Patton Creek. The businesses further argue that
Vestavia and Hoover breached this duty by failing to regularly
monitor the aggregate effects of upstream storm-water runoff
from new development and by only sporadically dredging and
cleaning Patton Creek.
The businesses rely heavily on this Court's holding in
Lott to contend that Vestavia and Hoover had a duty to
maintain Patton Creek. In Lott, a private landowner sued the
City of Daphne alleging that Daphne's negligent maintenance of
a storm-drainage system resulted in damage to his property,
specifically erosion. 539 So. 2d at 242-43. Daphne had
constructed a drainage system that "consist[ed] of a series of
underground
pipes
and
junction
boxes
that
eventually
discharge[d] storm water from the area surrounding Mazie's
Gulch [a natural gully that empties into Mobile Bay] into the
head of Mazie's Gulch." 539 So. 2d at 243. When a
subdivision was developed within the drainage basin of Mazie's
Gulch, Daphne attempted "to offset the effect of an increased
volume and velocity of water running from the subdivision into
Mazie's Gulch [by] requir[ing] the developers to install an
energy suppressor at the head of Mazie's Gulch." 539 So. 2d
1061313; 1071152
11
at 243. Mazie's Gulch traversed the landowner's property, and
he alleged that the increased water from the subdivision,
directed to the head of the gulch by Daphne's drainage system,
caused his property to erode. 539 So. 2d at 243.
Daphne argued that it had never undertaken maintenance of
Mazie's Gulch and that it was therefore not liable for the
erosion of the landowner's property. 539 So. 2d at 243-44.
However, this Court noted that "once a municipality undertakes
to maintain a 'drainage system,' a duty of care attaches in
the maintenance thereof" and held that the landowner presented
sufficient evidence from which a jury could conclude that
Daphne had undertaken to construct and/or maintain Mazie's
Gulch as part of its drainage system and therefore had
undertaken the duty to maintain Mazie's Gulch. 539 So. 2d
244-45. Thus, this Court held that a municipality may have a
duty to maintain a natural waterway that the municipality
incorporates into its drainage system.
The businesses assert that in Lott this Court held that
a jury could conclude that Daphne undertook a duty to maintain
Mazie's Gulch, in part, because the mayor of Daphne testified
that Daphne "had been using Mazie's Gulch as an important part
of [Daphne's] drainage system for the surrounding area."
1061313; 1071152
12
Lott, 539 So. 2d at 243-44. The businesses note that
Vestavia's former city engineer similarly testified that
Patton Creek is "one of the main drainage basins in the over-
the-mountain area period--from Shades Mountain to the South"
and that the mayor of Vestavia testified that Patton Creek is
one of the "primary conduits for storm water through
Vestavia." The businesses also contend that Vestavia has
performed substantially more work on Patton Creek than Daphne
had performed on Mazie's Gulch by spending more than $100,000
to dredge Patton Creek on each of three occasions, by
routinely cleaning and inspecting the creek and its culverts,
and by monitoring the effects on the creek of several upstream
developments.
The businesses contend that Hoover also has a duty to
maintain Patton Creek because, they say, Hoover's maintenance
and cleaning of portions of Patton Creek has been neither
isolated nor unique. The businesses assert that they have
presented
substantial
evidence
indicating
that
Hoover
regularly inspects and maintains Patton Creek. The businesses
also assert that there is substantial evidence indicating that
Hoover incorporated Patton Creek into its storm-water drainage
system because, they contend, Hoover installed a storm-water
1061313; 1071152
13
pipe on private property in 2006 to redirect storm water as it
flowed into Patton Creek and did similar work on a tributary
to Patton Creek.
Vestavia contends that the businesses' claim of negligent
maintenance fails as a matter of law because, it says, it
never undertook the duty to maintain Patton Creek. Vestavia
contends that its dredging of Patton Creek and cleaning of
culverts to prevent the flooding of public roads is
insufficient maintenance of Patton Creek to impose a
continuing duty to maintain Patton Creek. Vestavia relies on
Hursey v. City of Mobile, 406 So. 2d 397 (Ala. 1981), and
City of Dothan v. Sego, 646 So. 2d 1363 (Ala. 1994), for the
proposition that a municipality's discretionary and sporadic
maintenance of a drainage ditch is insufficient to impose a
continuing duty to maintain a drainage ditch. In Hursey, this
Court affirmed a summary judgment in favor of the City of
Mobile by concluding that Mobile did not have a duty to
maintain a drainage ditch. This Court held:
"The construction of a ditch by the City pursuant to
its easement and maintenance of the existing ditch
were discretionary functions; merely because the
City exercised its discretion and cleared the ditch
two times over a ten-year span of time is not
sufficient to impose a duty upon the City to
carefully maintain the ditch."
1061313; 1071152
14
Hursey, 406 So. 2d at 398.
In Sego, this Court addressed whether a city had
undertaken the duty to maintain a drainage ditch by cleaning
the ditch 3 times over a 22-year-period, each time at the
request of the owners of land abutting the ditch. This Court
held:
"Here, as in Hendrix [v. Creel, 292 Ala. 541, 297
So. 2d 364 (1974),] and Hursey, the City has
occasionally cleared a ditch that was naturally
occurring on, or was constructed by the owner of,
the land adjoining the plaintiffs' property. The
City did not thereby undertake a duty to exercise
due care in maintaining the ditch so that it would
not flood the plaintiffs' property or a duty to
provide for drainage of the plaintiffs' property."
Sego, 646 So. 2d at 1366.
Hoover likewise contends that its maintenance of Patton
Creek is insufficient to impose on it a continuing duty to
maintain Patton Creek. Hoover first contends that because it
is downstream from the businesses, it never assumed a duty to
maintain any portion of Patton Creek that could adversely
affect their property. As is the case with Vestavia, Hoover
also contends that the facts of the present case are
consistent with those in the Hursey, Hendrix, and Sego line of
decisions from this Court, holding that discretionary and
1061313; 1071152
15
sporadic maintenance of a drainage system is insufficient to
impose a continuing duty to maintain the system. Hoover
contends that, like the City of Dothan in Sego, its 2004
public-works project to remove silt from the area upstream
from and under Southland Drive bridge was discretionary. In
exercising its discretion and removing silt from Patton Creek
in order to assist a neighboring city on one occasion and
sporadically cleaning debris from Patton Creek at the requests
of private citizens, Hoover asserts, it did not undertake a
duty to maintain any portion of Patton Creek.
The businesses reply that contrary to Vestavia's and
Hoover's assertions, Sego and Hursey are not controlling on
the duty issue because, they say, in both of those cases there
was no evidence indicating that the cities had incorporated
the ditches into their drainage systems. According to the
businesses, Vestavia channels storm water into Patton Creek
through its constructed drainage system and allowed developers
to rechannel a significant portion of the creek. The
businesses also assert that Hoover installed a new storm-water
pipe on private property in 2006 to redirect storm water as it
flowed into Patton Creek and did similar work on a tributary
to Patton Creek. Thus, the businesses contend that the facts
1061313; 1071152
16
of Sego and Hursey are vastly different from those here, where
Vestavia and Hoover channeled storm water into Patton Creek,
incorporated Patton Creek into their drainage systems, spent
hundreds of thousands of dollars dredging Patton Creek,
monitored the effects of development on the creek, and
periodically inspected Patton Creek as part of the cities'
public-works functions.
B. Whether Vestavia or Hoover has assumed a duty by
incorporating Patton Creek into its respective drainage
system.
Surface water has flowed down adjoining mountainous
terrain into and through Patton Creek for hundreds of years.
There is no evidence indicating that Vestavia or Hoover has
constructed devices to direct water that would not otherwise
naturally flow through or into Patton Creek. In Lott, this
Court held that "in order for the City to be held liable for
any damages caused by its failure to act, it must also be
shown that the water from the City's drainage system, rather
than the natural drainage of surface water, caused the damage
complained of by the plaintiff." 539 So. 2d at 244 (emphasis
added). Unlike Lott, in which Daphne purposefully constructed
"a series of underground pipes and junction boxes" to redirect
1061313; 1071152
17
surface water through one area of Mazie's Gulch, there is no
evidence here indicating that Vestavia or Hoover constructed
a drainage system that directed surface water, other than by
natural drainage, into Patton Creek. We conclude that neither
Vestavia nor Hoover has undertaken a duty to maintain Patton
Creek because the cities have not purposefully directed into
Patton Creek water that would not otherwise naturally flow
through the creek.
C. Whether Vestavia or Hoover has assumed a duty by
periodic maintenance of Patton Creek.
Three dredgings of Patton Creek by Vestavia over a 23-
year period and the removal of debris in ditches and channels
of the creek to prevent the flooding of public roads do not
constitute undertaking maintenance of the creek. Such
occasional activity constitutes the sporadic exercise of
discretion to meet exigent circumstances. See Sego, 646 So.
2d at 1366; Hursey, 406 So. 2d at 398. "Sporadic" is defined
as "occurring occasionally, singly, or in irregular or random
instances." Merriam-Webster's Collegiate Dictionary 1207
(11th ed. 2003). The fact that Vestavia spent more than
$100,000 per dredging on 3 occasions over a 23-year period
does not serve to bring such intermittent activity above the
1061313; 1071152
18
level of sporadic activity. Further, we decline to hold that
evidence indicating that Vestavia monitored the effects of
storm-water runoff from some residential and commercial
developments is sufficient evidence of the assumption of a
duty to maintain the creek.
Hoover's occasional cleaning of Patton Creek in response
to requests from residents of adjoining property and one
public-works project to remove silt and debris from the creek
is also insufficient to support a finding that Hoover
undertook maintenance of Patton Creek.
Absent a duty to maintain Patton Creek, Vestavia and
Hoover cannot be held liable for negligent maintenance of the
creek. See Glass v. Birmingham Southern R.R., 905 So. 2d 789,
794 (Ala. 2004) ("In any negligence case, the plaintiff bears
the burden of proving the existence of a duty owed by the
defendant, a breach of that duty, causation, and damage.").
The trial court correctly found that because the businesses'
negligent-maintenance
claims
fail,
their
nuisance
and
trespass
claims must also fail. See Hilliard, 585 So. 2d at 893; City
of Prattville v. Corley, 892 So. 2d 845, 848 (Ala. 2003).
IV. Conclusion
1061313; 1071152
19
Because we conclude that neither Vestavia nor Hoover has
undertaken a duty to maintain Patton Creek, we pretermit
consideration of all other arguments by the businesses,
Vestavia, and Hoover. We affirm the summary judgment in favor
of Vestavia and Hoover.
1061313 -– AFFIRMED.
1071152 -– AFFIRMED.
Cobb, C.J., and See, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | May 23, 2008 |
bf005401-277d-4ff4-8483-99df168fb60f | Colie E. Crutcher, Jr., M.D. v. Iola Williams | N/A | 1050893m | Alabama | Alabama Supreme Court | Rel 05/30/2008
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, 2007-2008
_________________________
1050893
_________________________
Colie E. Crutcher, Jr., M.D.
v.
Iola Williams
Appeal from Sumter Circuit Court
(CV-00-68)
On Return to Remand
COBB, Chief Justice.
On
March
14,
2008,
we
remanded
this
case
with
instructions for the trial court to make its judgment final
pursuant to Rule 54(b), Ala. R. Civ. P., or to adjudicate a
1050893
2
cross-claim that remained pending against Colie E. Crutcher,
Jr., M.D. Crutcher v. Williams, [Ms. 1050893, March 14, 2008]
__ So. 2d __ (Ala. 2008) ("Crutcher I"). In response, the
trial court entered an order; however, that order contravened
our opinion and instructions. We again remand the case for
the trial court to enter another order in accordance with the
opinion and instructions in Crutcher I.
Facts
We described the procedural history of this case in
Crutcher I. In pertinent part, those facts are as follows:
"On June 23, 2000, Iola Williams filed a
medical-malpractice
action
against
Colie
E.
Crutcher, Jr., M.D., and the City of York Healthcare
Authority d/b/a Hill Hospital ('Hill Hospital').
Williams's action arose out of her visit to the Hill
Hospital emergency room in June 1998, during which
she was treated by Dr. Crutcher. Williams alleged
against Dr. Crutcher claims of medical negligence
and the tort of outrage and against Hill Hospital
claims of medical negligence, the tort of outrage,
negligence, and negligent hiring and supervision of
Dr. Crutcher and other Hill Hospital staff.
"On July 26, 2004, Hill Hospital filed the
following cross-claim, seeking indemnity from Dr.
Crutcher in the event it was found liable:
"'In the event Hill Hospital is found
liable predicated upon the acts and/or
omissions
of
[Dr.]
Crutcher,
while
allegedly
acting
as
its
agent,
Hill
Hospital
is
entitled
to
common
law
1050893
3
indemnity for [Dr.] Crutcher's acts and/or
omissions.'"
This court summarized the posttrial proceedings as
follows:
"On October 24, 2005, [following a jury trial,]
the trial court entered an order stating that
'judgment is rendered' in favor of Williams on her
claims against Dr. Crutcher and Hill Hospital in the
amount of $145,000. The trial court's order did not
address
Hill
Hospital's
indemnity
cross-claim
against Dr. Crutcher. Neither did it direct the
entry of a final judgment as to Williams's claims
against Dr. Crutcher and Hill Hospital in accordance
with the provision in Rule 54(b), Ala. R. Civ. P.,
for certifying as final a judgment disposing of
fewer than all claims in an action.
"The trial court
denied
the
postjudgment
motions
filed by Dr. Crutcher and Hill Hospital. On March 7,
2006, Dr. Crutcher filed a notice of appeal to this
Court."
___ So. 2d at ___.
This Court in Crutcher I found that the judgment from
which Dr. Crutcher appealed was not a final judgment because
it did not dispose of the cross-claim filed by the City of
York
Healthcare
Authority d/b/a/
Hill Hospital ("Hill
Hospital") against Dr. Crutcher and because the cross-claim
had not been otherwise adjudicated. Accordingly, we remanded
this case to the trial court with instructions to make its
October 24, 2005, judgment final pursuant to Rule 54(b), Ala.
1050893
4
R. Civ. P., or to adjudicate Hill Hospital's cross-claim
against Dr. Crutcher.
In Crutcher I, we specifically addressed and rejected
Iola Williams's argument that, on remand, the trial court
could "amend" its October 24, 2005, order pursuant to Rule
60(a), Ala. R. Civ. P., to "correct" the judgment so as to
adjudicate Hill Hospital's cross-claim and thus make the
October 24, 2005, judgment final. We stated:
"As an alternative to her argument that the
trial court's judgment is final, Williams asks this
Court to remand the case for the trial court to
amend or correct the judgment under Rule 60(a), Ala.
R.
Civ.
P.,
to
include
a
dismissal
of
the
cross-claim. ... Williams cites no authority for her
proposition that Rule 60(a) is the appropriate
vehicle for resolving the jurisdictional defect in
the appeal.
"Moreover, Rule 60(a) 'deals solely with the
correction of clerical errors,' not with 'errors of
a more substantial nature.' Rule 60, Ala. R. Civ.
P., Committee Comments on 1973 Adoption. 'Clerical
errors' are errors '"to which the judicial sanction
and discretion cannot be said reasonably to have
been applied."' Lester v. Commisky, 459 So. 2d 868,
870 (Ala. 1984) (quoting Ex parte ALK Radio Supply
Co. of Georgia, 283 Ala. 630, 635, 219 So. 2d 880,
885 (1969)). In this case, determining how to
adjudicate the cross-claim in light of the law, the
jury's
answers
to
interrogatories,
and
any
stipulation
by
the
parties
requires
judicial
discretion. The record contains no indication that
the trial court exercised that discretion. A Rule
60(a) motion 'cannot be used to make [the judgment]
1050893
5
say something other than what was originally
pronounced.' Ala. R. Civ. P. 60, Committee Comments
on 1973 Adoption. Therefore, in this case, Rule
60(a) does not permit a remand with instructions to
'correct'
the
judgment
under
Rule
60(a)
by
dismissing the cross-claim."
Crutcher I, __ So. 2d at __.
On March 26, 2008, the trial court entered the following
order, styled as an "Amended Judgment":
"Pursuant to the Jury Verdict of October 11, 2005,
judgment is rendered in favor of the Plaintiff Iola
Williams and against the Defendants Colie E.
Crutcher, Jr., M.D., and City of York Healthcare
Authority/Hill Hospital in the amount of One Hundred
Forty-Five
Thousand
Dollars
($145,000)
for
compensatory damages;
"Further,
for
purposes
of
clarification
in
accordance with Rule 60(a) Ala. R. Civ. P. to
correct the Court's oversight: Judgment is rendered,
nunc pro tunc, in favor of the Cross-Defendant Colie
E. Crutcher, Jr., M.D., on the City of York
Healthcare Authority/Hill Hospital's Cross-Claim
pursuant to the Jury Verdict of October 11, 2005, in
which Jury Questions #1 and #2 were incorporated.
This Court was of the opinion that the Jury's
Verdict and its answers to post-verdict Questions #1
and #2 disposed of Defendant Hill Hospital's cross-
claim against Defendant Crutcher as a matter of law
and thus left nothing further to be adjudicated and
no other verdict on which to render judgment.
"Accordingly this Court previously entered Judgment
on the Jury Verdict on October 24, 2005, intending
the Judgment to be final as to all parties and so as
to dispose of all claims in this matter.
1050893
6
"This Amended Judgment reflects the Court's original
intention and corresponds with the Jury Verdict of
October 11, 2005, into which Jury Questions #1 and
#2 were merged. ..."
(Emphasis added; footnote omitted.)
Analysis
"'It is well established that on remand the issues
decided by an appellate court become the "law of the case,"
and that the trial court must comply with the appellate
court's mandate.'" Sonnier v. Talley, 806 So. 2d 381, 388-89
(Ala. 2001) (quoting Gray v. Reynolds, 553 So. 2d 79, 81 (Ala.
1989)).
In Crutcher I, after directly and expressly considering
the parties' arguments on the issue, we explained that Rule
60(a), Ala. R. Civ. P., did not provide authority for the
trial court, on remand, to "amend" its October 24, 2005,
judgment to adjudicate Hill Hospital's cross-claim against Dr.
Crutcher. Nevertheless, the trial court entered an order on
remand purporting to do exactly that. We now remand the case
for the trial court to vacate its March 26, 2008 order and to
enter an order in accordance with Crutcher I and the
instructions in Crutcher I that it either (1) make the October
24, 2005, order a final judgment pursuant to Rule 54(b), Ala.
1050893
7
R. Civ. P.; or (2) adjudicate Hill Hospital's cross-claim.
Failure to respond within 28 days will result in the dismissal
of the appeal as being from a nonfinal judgment.
REMANDED WITH INSTRUCTIONS.
See, Woodall, Smith, and Parker, JJ., concur. | May 30, 2008 |
e103f689-0faa-455d-a1f9-ec4fc07ce2fe | Ex parte State of Alabama. PETITION FOR WRIT OF MANDAMUS: CRIMINAL (In re: Billy Don Evans, Jr. v. State of Alabama) | N/A | 1070703 | Alabama | Alabama Supreme Court | REL: 7/11/2008
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
____________________
1070703
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF MANDAMUS
(In re: Billy Don Evans, Jr.
v.
State of Alabama)
(Montgomery Circuit Court, CC-06-62)
SMITH, Justice.
The State of Alabama petitions for a writ of mandamus
directing the trial court to reinstate the guilty plea of the
defendant, Billy Don Evans, Jr. We dismiss the petition as
untimely filed.
1070703
It appears from the materials before us that the alleged
1
abuse did not occur in conjunction with Evans's teaching.
Act No. 706 provided for the creation of a "pre-trial or
2
a
pre-prosecution
diversionary
or
deferred
prosecution
program," § 2.a., in the Fifteenth Judicial Circuit. Persons
who are accepted into and satisfactorily complete the
diversion program are entitled to a "non-criminal disposition"
of the charges against them.
2
Facts and Procedural History
Evans, whom the materials before us identify as a school
teacher, was indicted on two counts of child abuse for
allegedly hitting two children with an extension cord and a
water hose. At arraignment, Evans pleaded not guilty, and
1
his case was scheduled for a trial to be held on April 17,
2006.
The trial court subsequently set a review date to
determine whether Evans was eligible to participate in the
"pre-trial diversionary program" (hereinafter "the diversion
program") established in the Fifteenth Judicial Circuit in
accordance with Act No. 706, Ala. Acts 1978. On May 3, 2006,
2
Evans filed a motion requesting that the trial court cancel
the review hearing and reschedule his case for trial. In his
motion, Evans sought to withdraw his application for
participation in the diversion program because a guilty plea
1070703
3
was a prerequisite to admission into the diversion program,
because the district attorney had expressed strong opposition
to Evans's admission to the diversion program, and because
Evans had determined that it was not in his best interest to
enter a guilty plea as the trial court would ultimately
sentence him as charged and a conviction would "most assuredly
cause [him] to lose his employment as a teacher along with all
opportunity to vest his retirement ...." The trial court
granted the motion and reset Evans's case for trial.
Although Evans had requested that he not be considered
for the diversion program, he later filed a "Petition to Allow
Application for Diversion." The trial court granted this
petition, and a plea hearing was held on June 22, 2006. At
the hearing, Evans's counsel stated that Evans wished to plead
guilty and to apply for the diversion program. The deputy
district attorney present, however, stated in open court that
she did not think Evans would be admitted to the program. The
trial court commented: "I'm going to campaign vigorously for
his admission into the program. We need to make an
exemption on this one. This guy needs to be in."
The trial court then proceeded to conduct a colloquy with
1070703
According to the State's brief, it has been the policy
3
of the diversion program for over 30 years to exclude all
violent offenders from participating in the program.
It is unclear what procedures Evans undertook in the
4
"appeal" process. The exhibits submitted with the petition for
the writ of mandamus simply reflect that Evans's "appeal" and
his "appeal reconsideration" had been denied by the district
attorney and that his case was "being returned to the court
system for prosecution."
4
Evans noting that "it was going to be tough" for Evans to be
admitted into the diversion program and that his counsel would
"campaign" for him and "hopefully" he would be accepted. The
trial court also explained that if Evans was not accepted into
the diversion program, he would be adjudicated guilty and
sentenced: "[L]et's say for some reason you don't get in or
you get in and you get kicked out ... I've got to adjudicate
you guilty and sentence you ...." Evans subsequently pleaded
guilty to two counts of felony child abuse and applied to the
diversion program.
Evans was ultimately denied entry into the diversion
program. He "appealed" his denial; however, his appeal and
3
his subsequent "motion for reconsideration" were also denied.4
Upon the motion of the State, Evans's case was scheduled for
sentencing; however, on November 28, 2006, the trial court
entered an order in the case-action summary continuing Evans's
1070703
5
sentencing "indefinitely" and placing the case on the trial
court's administrative docket.
On July 24, 2007, the trial court entered the following
order appointing new counsel for Evans and setting a hearing
for sentencing:
"Comes the Court and does hereby order that the
Honorable Richard White is appointed as counsel for
the defendant for the purposes of sentencing.
Defendant pled guilty to two counts of child abuse
on June 22, 2006 before this Court. The Court having
determined that, after several attempts, defendant
was unable to enroll in the Pre-trial Diversion
Program, does hereby set sentencing for September 6,
2007 ...."
The sentencing hearing was continued, and on October 4,
2007, the trial court held a hearing "to sentence Mr. Evans on
two counts of child abuse ...." The following exchange
occurred:
"MR. WHITE [defense counsel]: I've talked to
[Evans] in pretty good detail. ... I'm under the
impression if he gets a felony, if you adjudicate
him guilty, he's going to lose his job.
"....
"MR. WHITE: My understanding from talking with
him was he did not understand that .... But his
understanding [was] ... that he was going to go to
pretrial; that his case--
"THE COURT: They won't let him in. ... I think
Mr. Evans ought to be allowed to do pretrial because
1070703
6
he does teach school; he's taught school for a long
time, like twenty something years. ... Mr. Evans
here is a good person who's got a good job, who's
never been in trouble, who needs to get his
retirement, who needs--and who's a great teacher.
I've gotten great reports. And I'm just going, you
know, why can't we do pretrial diversion? Well, we
can't because the DA's office says no ....
"....
"THE COURT: Well, and this is what I was going
to do ... Mr. Evans, when can you retire?
"....
"[EVANS]: ... 2009.
"THE COURT: ... We'll just let him withdraw the
guilty plea, and we'll just--we'll reset the case
after his retirement.
"....
"[DEPUTY DISTRICT ATTORNEY]: The State would
object to him withdrawing his guilty plea. On June
22, 2006, he pled guilty with the understanding--I
made it very clear--that it was my opinion that he
would not be eligible for pretrial diversion and
that he would not get into pretrial diversion. The
adjudication was withheld pending the outcome of
pretrial diversion, so he did plead guilty on that
date.
He
made
a
knowing
and
voluntary
and
intelligent plea of guilt in this case. Mr. Freeman,
his attorney at that time, was given all of the
discovery, given the pictures, and there were
extensive talks about what would happen or what
could possibly happen if this case went to trial. So
based on that, the State would object to him being
allowed to withdraw his guilty plea.
"THE COURT: Okay. And I'll note your objection.
1070703
7
And I am going to allow him to withdraw.
"....
"THE COURT: ... And I am going to let you
withdraw your plea because I think you only entered
it with the understanding you would get in pretrial
diversion...."
The trial court granted Evans's oral motion to withdraw his
guilty plea, and it set the case for trial on January 4, 2010,
after Evans is scheduled to begin receiving his retirement
benefits.
On October 11, 2007, the State filed a petition for a
writ of mandamus in the Court of Criminal Appeals, presumably
seeking the same relief sought in the instant petition. The
Court of Criminal Appeals denied the State's mandamus petition
without an opinion on January 7, 2008. Evans v. State (No.
CR-07-0069, January 7, 2008), ___ So. 2d ___ (Ala. Crim. App.
2008) (table). The State asserts that it never received a
notice that the Court of Criminal Appeals had denied its
petition; after learning of the denial, the State filed the
instant petition in this Court on February 19, 2008.
In its petition, the State contends that Evans failed to
meet his burden of establishing that his pleas were due to be
withdrawn, that the trial court
clearly exceeded its
1070703
8
discretion in allowing Evans to withdraw his guilty pleas
simply because he had been denied entry in the diversion
program, and that the trial court exceeded its discretion in
postponing the trial date until after Evans is eligible to
begin receiving retirement benefits.
We express no opinion on the merits of the State's
arguments or the appropriateness of the trial court's actions
in this case, because we conclude that the petition must be
dismissed as untimely filed. Rule 21, Ala. R. App. P.,
governs the filing of mandamus petitions. Rule 21(a) governs,
among other things, mandamus petitions "directed to a judge or
judges," while Rule 21(e) specifically governs this Court's
review of a decision of a "court of appeals" on an "original
petition for writ of mandamus or prohibition or other
extraordinary writ." These two subdivisions also have
different timing provisions. Rule 21(a)(3) provides:
"The petition shall be filed within a reasonable
time. The presumptively reasonable time for filing
a petition seeking review of an order of a 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."
1070703
9
However, the timing for the filing of a petition pursuant
to Rule 21(e) is different. If a rehearing was sought in the
court of appeals, then the timing of the petition filed in the
supreme court (with some exceptions if the application is
withdrawn)
is
governed
by
subdivision
(e)(3).
That
subdivision incorporates the procedures for certiorari review
found in Rule 39, Ala. R. App. P., including the various
timing provisions found in that rule.
If no application for rehearing is filed (or is properly
withdrawn as specified in subdivision (e)(3)), then the timing
of the filing is governed by subdivision (e)(2), which
provides:
"(2) Such review in the supreme court of a grant
or denial must be commenced by filing the petition
in the supreme court within fourteen (14) days of
the grant or denial of the writ by the court of
appeals. Procedures on such review shall conform to
the provisions of subdivisions (a), (b), and (c) of
this rule where those subdivisions are applicable."
In the instant case, the State's "original petition for
extraordinary relief" was denied by the Court of Criminal
Appeals; therefore, the State has filed in this Court a
presumably "similar petition." Rule 21(e)(1). Because no
application for rehearing was filed, subdivision (e)(3),
1070703
10
requiring review by writ of certiorari, does not apply in this
case. Instead, the timeliness of the State's petition is
governed by subsection (e)(2), which requires that the
petition be filed "within fourteen (14) days of the grant or
denial of the writ by the court of appeals."
The Court of Criminal Appeals denied the State's mandamus
petition on January 7, 2008; the instant petition was not
filed with this Court until February 19, 2008, well beyond the
14 days specified in Rule 21(e)(2). Therefore, it is untimely
filed.
However, the State points to the second sentence in
subdivision (e)(2), which states that "[p]rocedures on such
review shall conform to the provisions of subdivisions (a),
(b), and (c) of this rule where those subdivisions are
applicable." The State suggests that "the review" of the
petition filed in this Court "must also conform to the
provisions in subdivisions (a), (b), and (c)." The State then
notes that Rule 21(a)(3) states that 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
1070703
11
it was filed beyond the presumptively reasonable time." The
State then suggests that the timing provisions in Rule
21(a)(3) apply in this case, and further contends that
although this petition was "filed beyond the presumptively
reasonable time, it is appropriate for this Court to review
because the State of Alabama filed this action immediately
after becoming aware of the decision of the Alabama Court of
Criminal Appeals."
The general timing provision in subdivision (a)(3) does
not apply to the State's petition for the writ of mandamus in
this case. As noted above, Rule 21(e) specifically governs a
petition filed in the "supreme court" to review a "decision of
a court of appeals on an original petition for writ of
mandamus ...." Furthermore, Rule 21(e)(2) invokes only the
provisions of subdivisions (a), (b), and (c), "where those
subdivisions are applicable." (Emphasis added.) Rule 21(e)
specifically governs the filing in the "supreme court" of a
petition to review a decision of a court of appeals, and Rule
21(e)(2) requires that such a petition be filed within 14 days
of the grant or denial of the writ by the court of appeals.
Because Rule 21(e)(2) specifically governs the timing of
1070703
The materials before us do not explain why the State did
5
not receive notice that the Court of Criminal Appeals had
denied the petition, and there is no explanation or affidavits
in the materials before us demonstrating the circumstances of
the State's alleged lack of notice.
12
filing in this Court of a petition for a writ of mandamus
reviewing a decision of a court of appeals, the general
provisions governing the time for filing mandamus petitions in
Rule 21(a)(3) are not "applicable" within the meaning of the
second sentence of Rule 21(e)(2). Cf. State Farm Mut. Auto.
Ins. Co. v. Brown, 894 So. 2d 643, 650 (Ala. 2004) ("[A]
statutory provision relating to a specific subject is
understood to act as an exception to a provision relating to
general subjects."). Because the petition in this case was
not filed within 14 days after the Court of Criminal Appeals'
denial of the State's petition for the writ of mandamus, we
5
hold that the instant petition is untimely filed and,
therefore, is due to be dismissed.
PETITION DISMISSED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Bolin,
Parker, and Murdock, JJ., concur. | July 11, 2008 |
832b527c-f788-4862-805f-a60d6c60fe3c | Ex parte W. Randall Mullis. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Lynda Marie Mullis v. W. Randall Mullis) | N/A | 1061456 | Alabama | Alabama Supreme Court | REL:
5/23/08
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, 2007-2008
_________________________
1061456
_________________________
Ex parte W. Randall Mullis
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Lynda Marie Mullis
v.
W. Randall Mullis)
(Baldwin Circuit Court, DR-05-201;
Court of Civil Appeals, 2051068)
COBB, Chief Justice.
1061456
2
On August 7, 2006, W. Randall Mullis ("the husband") and
Lynda Marie Mullis ("the wife") were divorced by the Baldwin
Circuit Court. The trial court awarded the husband and the
wife joint legal custody of the Mullises' two children, with
the husband having physical custody of the children. The
husband was ordered to pay the wife $600 per month in
periodic alimony, and the wife was ordered to pay the husband
$307 per month in child support. The husband was also ordered
to pay the wife $2,500 to purchase a vehicle. The husband was
awarded possession and ownership of the marital residence,
rental property, and business property owned by the couple but
was ordered to pay the wife $40,000 as a property settlement.
The wife appealed, arguing that the trial court's
property division was inequitable and that the trial court
erred by awarding physical custody of the children to the
husband. The Court of Civil Appeals affirmed the trial
court's custody award, but it reversed the trial court's
property division, holding that the division was inequitable.
Mullis v. Mullis, [Ms. 2051068, June 22, 2007] ___ So. 2d ___
(Ala. Civ. App. 2007). The husband then petitioned this court
for a writ of certiorari, arguing that the Court of Civil
1061456
The record indicates that the birth certificate of the
1
Mullises' first child, who was born before their marriage,
shows the mother as "Lynda Mullis."
3
Appeals' reversal of the property division conflicts with this
Court's holding in Ex parte Foley, 864 So. 2d 1094 (Ala.
2003). We granted the husband's petition for the writ of
certiorari, and we now affirm the judgment of the Court of
Civil Appeals.
The husband and wife were married on June 25, 1995,
although they had cohabited since June 1990. On February 18,
1
2005, the husband filed a complaint for divorce seeking
custody of the children. The wife answered and filed a
counterclaim for divorce in which she also sought custody of
the children. On June 14, 2005, after an hearing held on June
7, 2005, at which evidence was presented ore tenus, the trial
court entered an order awarding temporary custody of the
children to the husband and awarding the husband temporary
exclusive possession of the marital home.
On March 24, 2006, and July 7, 2006, the trial court held
hearings on the husband's and the wife's complaints for
divorce. As the Court of Civil Appeals summarized:
"The trial court conducted several ore tenus
hearings
in
this
case.
The
testimony
and
1061456
4
documentary evidence from those hearings revealed
the following pertinent facts. At the time of the
final hearing in this matter, the [husband] was 43
years old and the [wife] was 53 years old. This is
the [wife's] second marriage. The [wife] has four
children from her previous marriage, but she does
not have custody of those children. The [husband]
has one child with special needs from a previous
marriage, but he does not have custody of that
child.
"The parties separated in November 2003 when the
[husband] moved out of the marital home. The
[husband] returned to the marital home approximately
three weeks after the trial court awarded him
temporary custody of the children and possession of
the marital home on June 14, 2005. The [husband]
testified that when he returned to the house he
discovered that the [wife] had left the house in a
filthy condition. The [husband] submitted numerous
photographs into evidence at trial depicting an
unkempt house with trash strewn and clothes piled on
the floor. The [wife] denied leaving the house in
the condition as depicted in the pictures admitted
into evidence. The [wife] claimed that she kept the
house clean while she had custody of the children.
"The [husband] testified that he also found
marijuana and numerous prescription pills loose in
the house when he was cleaning the house. The
[husband] explained that he took the pills he found
to a pharmacist and learned that the pills were
'uppers' of various kinds. The [husband] submitted
as evidence a bottle containing various types of
pills and what appears to be stems of marijuana the
[husband] found while cleaning the marital home.
"The [husband] and the [wife] both admitted to
abusing illegal drugs in the past. The record
revealed that the [husband] had been convicted in
1997 for possession of marijuana. The [husband]
testified
that
he
had
previously
abused
1061456
5
methamphetamine and marijuana but that he had
stopped abusing drugs several years before the final
hearing in this case. According to the [husband],
the [wife] continued to smoke marijuana. The [wife]
testified that she and the [husband] used to smoke
marijuana together, but she testified that she no
longer smokes marijuana. The [wife] denied having
a drug problem. The [wife] testified that she had
consistently tested negative for drugs on drug
screens administered to her after the initial
hearings were held in the case.
"The record reveals that the evening before the
June 7, 2005, temporary hearing, the [wife] was
arrested and charged with possession of a controlled
substance. According to her testimony, the [wife]
was arrested two blocks from the marital home with
Xanax, a prescription drug, in her possession. At
the time the [wife] was arrested, she did not have
a prescription in her name for Xanax. The [wife]
explained that she had had a prescription for the
Xanax
found
in
her
possession
but
that
her
prescription had expired. The [wife] later pleaded
guilty to a lesser charge of illegal possession of
a prescription drug and was sentenced to two years'
probation.
"The [husband] testified that the [wife] did not
consistently exercise visitation with the children
after he received temporary custody of the children
in June 2005. According to the [husband], the
[wife] frequently declined to exercise overnight
visitation with the children on Wednesdays and
missed several scheduled weekend visitations. The
[wife]
testified
that
the
[husband]
made
it
difficult for her to exercise visitation with the
children and, at times, refused to allow her to
visit with the children. According to the [wife],
she
did
not
consistently
exercise
overnight
visitation with the children on Wednesdays because
she thought it best for the children to wake up in
their own beds during the school week. The [wife]
1061456
Hurricane Katrina was a devastating hurricane that made
2
landfall on the Gulf Coast as a Category 3 hurricane on August
29, 2005, causing severe damage.
6
testified that she missed visitation one weekend in
August 2005 because of a mandatory evacuation for
Hurricane Katrina.
The [wife] testified that she
[2]
had not paid child support to the [husband] since
the [husband] received temporary custody of the
children.
"The [husband] testified that the [wife] had
moved four times during the year preceding the final
hearing in this case and that he did not know where
the [wife] was living at the time of the final
hearing. Testimony presented over the course of
several ore tenus hearings held in this case
revealed that the [wife] had moved several times. At
the time of the final hearing, the [wife] was living
with her friend, Jill Richburg, and Richburg's two
children. The [wife] testified that she paid
Richburg $200 a week for rent.
"Testimony revealed that the [wife] worked
outside and inside the home during the parties'
marriage. The [wife] testified that when she was
not employed as a preschool teacher, she worked at
home and handled all of the telephone calls for the
[husband's] plumbing business. The [wife] testified
that she began substitute teaching at a private
school in 1994 and worked there for approximately 10
years. The [wife] testified that her employment at
the school guaranteed that the children could attend
the school without paying tuition. After leaving
her employment at the school, the [wife] worked for
a child-development center, but she was fired from
that job in March 2006. The [wife] testified at the
final hearing that she had a full-time job working
40 to 48 hours a week, earning $9 per hour. The
[wife] listed her gross monthly income as $1,560 in
her CS-41 child-support income affidavit filed in
the trial court.
1061456
7
"The [husband] is a self-employed plumber and
owns Coastal Plumbing and Heating. The [husband]
testified that he charges $78.50 an hour but that he
typically performs contract work and is paid a flat
rate for his services. The [husband] testified that
his gross monthly income, including rental income he
receives from commercial property and residential
property he owns, is $3,700 a month. The [husband]
testified that after he pays expenses associated
with the rental properties, his monthly income is
reduced to approximately $1,700.
"The parties purchased their marital home in
December 2000. The [husband] testified that the
marital home had been appraised for $230,000. The
[husband]
testified that $100,000 of mortgage
indebtedness remains on the marital home. The
[husband]
testified that the monthly mortgage
payment on the marital home was $947.
"In addition to the marital home, the parties
own real property located on Fort Morgan Road in
Gulf
Shores
(hereinafter
'the
Fort
Morgan
property').
The
[husband]
testified
that
a
commercial building, a rental house, and the shop
for his plumbing business all sit on the Fort Morgan
property. The [husband] estimated the total value
of the Fort Morgan property to be $300,000. The
[husband] testified that the Fort Morgan property
was subject to mortgage indebtedness of $197,000 and
that his monthly mortgage payment on the property
was $1,422.44.
"The
trial
court
heard
limited
testimony
regarding
other
marital
assets.
The
[wife]
testified that the [husband] left her a 1995 GMC
Jimmy [sport-utility vehicle] to drive after the
parties' separation. The [husband] testified that
he owned the vehicle. No value was given for the
vehicle, but the [wife] testified that the vehicle
was inoperable and had been inoperable for some
1061456
8
time. At the time of the final hearing, the
[husband] had the vehicle in his possession. The
[husband] and the [wife] both presented testimony
from character witnesses who testified in favor of
their respective abilities to parent the children."
___ So. 2d at ___. The evidence presented during the ore
tenus hearings indicated that before the divorce the wife had
removed money from the one of the children's savings account.
The evidence also indicated that after the parties separated
the wife fraudulently withdrew approximately $1,800 from the
husband's business checking account; the bank, however,
replaced the funds that the wife fraudulently withdrew.
"The
standard
appellate
courts
apply
in
reviewing a trial court's judgment awarding alimony
and dividing property is well established:
"'A trial court's determination as to
alimony and the division of property
following an ore tenus presentation of the
evidence is presumed correct. Parrish v.
Parrish, 617 So. 2d 1036 (Ala. Civ. App.
1993). Moreover, issues of alimony and
property
division
must
be
considered
together, and the trial court's judgment
will not be disturbed absent a finding that
it is unsupported by the evidence so as to
amount to an abuse of discretion. Id.'
"Morgan v. Morgan, 686 So. 2d 308, 310 (Ala. Civ.
App. 1996). ...
"'The trial court has wide discretion
over alimony and the division of property,
and
it
may
use
whatever
means
are
1061456
9
reasonable and necessary to equitably
divide the parties' property. Grimsley v.
Grimsley, 545 So. 2d 75, 77 (Ala. Civ. App.
1989). Its judgment is presumed correct
and will not be reversed unless it is so
unsupported by the evidence ... as to be
unjust and palpably wrong. Grimsley, 545
So. 2d at 76. However, that judgment is
subject to review and revision. Moody v.
Moody, 641 So. 2d 818, 820 (Ala. Civ. App.
1994). This court must consider the issues
of property division and alimony together
when reviewing the decision of the trial
court, Albertson v. Albertson, 678 So. 2d
118, 120 (Ala. Civ. App. 1996), and,
because the facts and circumstances of each
divorce case are different, this court must
also consider the particular facts and
circumstances of the case being reviewed.
Murphy v. Murphy, 624 So. 2d 620, 623 (Ala.
Civ. App. 1993).'
"Bushnell v. Bushnell, 713 So. 2d 962, 964-65 (Ala.
Civ. App. 1997)."
Ex parte Drummond, 785 So. 2d 358, 360-61 (Ala. 2000).
In reversing the trial court's division of property, the
Court of Civil Appeals relied on its decision in Courtright v.
Courtright, 757 So. 2d 453 (Ala. Civ. App. 2000). In
Courtright, the Court of Civil Appeals stated:
"The trial court's judgment on ... issues [of
property division and alimony] will not be reversed
absent a finding that the judgment is so unsupported
by the evidence as to amount to an abuse of
discretion. ... The property division need not be
equal, but it must be equitable. ... The factors the
trial court should consider in dividing the marital
1061456
10
property include 'the ages and health of the
parties, the length of their marriage, their station
in life and their future prospects, their standard
of living and each party's potential for maintaining
that standard after the divorce, the value and type
of property they own, and the source of their common
property.'"
757 So. 2d at 456 (quoting Covington v. Covington, 675 So. 2d
436, 438 (Ala. Civ. App. 2000)).
The Court of Civil Appeals noted that the husband is 43
years old and the wife is 53 years old. Both the husband and
the wife are employed; the husband earns approximately $3,700
per month while the wife earns approximately $1,560 per month.
The parties owned real property worth $530,000 that was
subject to mortgage indebtedness in the amount of $297,000.
Considering the net worth of the marital property, the Court
of Civil Appeals noted that the trial court awarded the
husband approximately 81.8% of the parties' net worth while
the mother was awarded 18.2% of the parties' net worth. ___
So. 2d at ___. The Court of Civil Appeals thus held that the
division of the marital assets was inequitable "[g]iven the
length of the parties' marriage, the parties' future
prospects, and the value and type of the marital property."
Mullis, ___ So. 2d at ___.
1061456
11
The husband argues that the Court of Civil Appeals'
judgment conflicts with this Court's opinion in Ex parte
Foley, supra. In Foley, a couple divorced, and a portion of
the marital property was divided in accordance with an
agreement entered into by the parties. The trial court,
however, divided marital property not included in the
agreement,
which
consisted primarily
of the husband's
retirement accounts totaling approximately $250,000. The
trial court awarded the wife $46,000 of the husband's combined
retirement accounts. The Court of Civil Appeals reversed the
trial court's judgment, concluding that the property division
was inequitable because the parties had been married for 28
years, during which the husband had accumulated a substantial
pension, and because the wife had not worked outside the home
during the marriage, was not a high school graduate, had no
prospects for future employment, and had no pension of her
own. The Court of Civil Appeals placed great weight on the
wife's allegations of infidelity and abuse by the husband,
although there was testimony disputing those allegations
during the trial. This Court, in turn, reversed the judgment
of the Court of Civil Appeals, holding that the trial court
1061456
12
did not exceed its discretion in the alimony award or the
division of property. This Court further concluded that the
Court of Civil Appeals had improperly reweighed the evidence.
The wife argues that Foley is distinguishable. She notes
that according to the opinion of the Court of Civil Appeals in
Foley, the wife received an automobile, various personal
property and furnishings, and one-half of the proceeds from
the sale of three parcels of real property, including the
marital residence, in addition to $46,000 from the husband's
combined retirement accounts. See Foley v. Foley, 864 So. 2d
1091, 1093 (Ala. Civ. App. 2002).
Although it did not so state in its written order, the
trial court in this case explained its rationale for the
alimony award and the division of the marital property at the
conclusion of the proceedings:
"[TRIAL COURT]: Okay. Having heard the
evidence, I am granting their divorce. I am going
to base it on incompatibility of temperament and
irretrievable breakdown of the marriage. There has
been conflicting evidence about whether or not we
have adulterous conduct prior to the separation
time, but they're certainly incompatible, so I know
I can find it from that, so the divorce is granted
on those grounds.
"Now, I'll give them joint legal custody of the
children. I am going tell y'all a few things that
1061456
13
I observed during the course of this testimony. It
appears to me that I have a dad who at times,
nothing personal, has been a real jerk about this
whole thing. It's just an observation, but there
have been problems that the mom has had that I
absolutely cannot avoid that are worse than being a
jerk at times, so I'll have to place primary
physical custody with the dad even though that means
I know I will see you here a lot because every time
he feels like a jerk she will bring him to court.
Maybe we can avoid that in the future. She will
have Schedule A visitation.
"....
"Additionally no one is to be under the
influence of alcohol or drugs in front of these
children. I have had ample testimony about each one
of you being involved with drug activity at various
points in time, so y'all just aren't going to be
under the influence or allow other people to be
under the influence in front of your children. They
are coming to be of age where they need to be seeing
good examples. I am going to order that the husband
pay alimony to the wife. I am going to order it in
the amount of [$600] a month. I am going credit
against that what she would owe him for child
support, which is [$307] a month, so I better get
out a calculator. That means the net that goes to
her is [$293] because then that'll take care of the
child support. If he just sends her the [$293] and
that recognizes that is child support that she would
have been paying. It doesn't make sense for one to
pay more than that and the other to make a payment
back. That's just silly.
"Where is that [automobile] right now?
"....
1061456
14
"[HUSBAND]: It's in my shop. I've been told
that it can be fixed, but it might be a month before
they can get to it.
"[TRIAL COURT]: Okay. The husband is to provide
the wife with $2,500 within 30 days time so she may
get some type of vehicle. If she is going to be
transporting kids around, she needs a vehicle, so
within 30 days he is to provide her $2,500 and she
can get a vehicle....
"[TRIAL COURT]: ... Okay. The property items.
I understand there is a marital home. There is a
rental home that was their home prior to the one we
are calling the marital home and there's a business
address?
"[HUSBAND'S COUNSEL]: Yes. And let me remind
Your Honor that on the marital residence and the
business, his father is on the mortgage and the note
for those and –- and the money that he gets out of
all the rental property --
"[TRIAL COURT]: Well, I counted it as part of
his income.
"[HUSBAND'S COUNSEL]: -- just about pays the
mortgage and the taxes, insurance and what have you.
"[TRIAL COURT]: I understand.
"[WIFE'S COUNSEL]: Judge, I don't believe his
father is on that house.
"[TRIAL COURT]: For the rental house?
"[WIFE'S COUNSEL]: No, is on the marital house.
"[HUSBAND]: He had to sign the note.
"[TRIAL COURT]: Which buildings is she on?
1061456
15
"[WIFE'S COUNSEL]: The marital home. It's
joint.
"[HUSBAND]: But he had to sign for the loan.
"[WIFE'S COUNSEL]: I've got a copy of that.
I'll find it.
"[TRIAL COURT]: And if I recall correctly,
there's some $130,000 of equity left in the marital
home.
"[WIFE'S COUNSEL]: At least.
"[HUSBAND]: I owe --
"[TRIAL COURT]: I understand. I have $100,000
owed and that a value per an appraisal of $230,000
which leaves $130,000.
"[HUSBAND]: (Witness nods head.)
"[TRIAL COURT]: That was easy math. I was able
to do that. I am going to require that the husband
pay a property settlement to the wife recognizing
some interest in the marital home. I am going to
require that he pay her $40,000 in that as property
settlement. I will give him 90 days to do whatever
financing or whatever he needs to do to get that
paid to her. Did I miss anything?
"[WIFE'S COUNSEL]: What about the business
property and the rental property?
"[TRIAL COURT]: I am awarding those to him
because they are making the money that allows him to
be able to make certain payments to her and to
support the children as well. So I am awarding them
to him for those reasons. Thank you. Sometimes I
don't say those things. What else?
1061456
16
"[WIFE'S COUNSEL]: Here's a copy of the
mortgage on the marital home and his dad is not on
it.
"[TRIAL COURT]: Well, I made a property award
out of that that he owes himself.
"[HUSBAND'S COUNSEL]: I think what -- what we
said was his dad signed the note that as the
guarantor."
After considering the record on appeal, we conclude that
the Court of Civil Appeals properly reversed the trial court's
judgment insofar as it divides the marital assets. Unlike
Foley, where the wife received numerous valuable items from
the marital estate before the trial court awarded the wife a
proportionally small amount of the husband's retirement
accounts, the 18.2% of the parties' net worth awarded to the
wife in this case represents all she will receive from the
marriage. Thus, we agree with the Court of Civil Appeals that
given the length of the parties' marriage, the parties' future
prospects, and the value of the marital property, the division
of which awarded the husband 81.8% of the parties' net worth
1061456
Although not explicitly stated in its order or at any
3
hearing, a review of the record clearly indicates that the
trial court was attempting with its division of the marital
property to ensure the best interest of the parties' minor
children. Although the trial court is to be commended for its
desire to protect the best interest of the minor children by
attempting to keep the children in the same or similar
circumstances after the divorce as they were in before the
divorce, the trial court could and should have fashioned a
more equitable division of marital property so that the wife's
needs would not be neglected in favor of the children. For
example, if the trial court had concerns that the husband
would be unable to maintain the marital residence if he was
ordered to pay more than $40,000 for the wife's share of the
equity in the house, it could have awarded use of the marital
residence to the husband until such time as the children are
emancipated and then ordered its sale so the parties could
receive their proportionate equity. See, e.g., Mattingly v.
Mattingly, 541 So. 2d 552 (Ala. Civ. App. 1989) (affirming the
trial court's judgment awarding possession of the marital
residence to the wife until the emancipation of the minor
child, at which time the husband was awarded the residence);
Chernau v. Chernau, 396 So. 2d 1061 (Ala. Civ. App. 1981)
(upholding the trial court's judgment awarding the wife use of
the marital home until she remarried, at which time it was to
be sold and the husband was to receive the greater of one-
third of the net proceeds or $38,000); but see Slater v.
Slater, 587 So. 2d 376 (Ala. Civ. App. 1991) (holding that
trial court's order that gave the wife use of the marital
residence and allowed continued joint tenancy with right of
survivorship of marital residence but that required the sale
of the residence upon the emancipation of the minor child, at
which time the husband was to be paid one-half of the
appraised total equity in the residence at the time of the
divorce, was plainly and palpably wrong in that the order
limited the wife's ability to sell her interest in the house
17
and awarded the wife 18.2% of the parties' net worth, is
inequitable.
3
1061456
or to refinance the home loan, it required the wife to protect
the husband's equity in the house, and the husband would
receive the wife's ownership interest in the house should she
die). Similarly, the trial court could have awarded the
husband use of the business and rental properties until the
children are emancipated if it was concerned that the sale of
those properties and the division of proceeds would inhibit
the father's ability to adequately support the children.
18
Because we find no conflict with the Court of Civil
Appeals' judgment and other Alabama caselaw, we affirm the
judgment of the Court of Civil Appeals.
AFFIRMED.
See, Stuart, Smith, Bolin, and Murdock, JJ., concur.
Woodall and Parker, JJ., concur in the result.
Lyons, J., recuses himself. | May 23, 2008 |
5fc86e93-a264-4d1c-a980-ceca0cf1ff0f | Ex parte Alabama Department of Human Resources. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Alabama Department of Human Resources v. Ideal Truck Service, Inc.) | N/A | 1070042 | Alabama | Alabama Supreme Court | rel: 06/20/2008
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, 2007-2008
_________________________
1070042
_________________________
Ex parte Alabama Department of Human Resources
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Alabama Department of Human Resources
v.
Ideal Truck Service, Inc.)
(Mobile Circuit Court, DR-00-501918;
Court of Civil Appeals, 2050625)
COBB, Chief Justice.
1070042
2
On January 9, 2008, this Court granted the petition for
a writ of certiorari filed by the Alabama Department of Human
Resources ("DHR") to review the Court of Civil Appeals'
holding that the sovereign-immunity provision of the Alabama
Constitution of 1901 did not bar the motion filed by Ideal
Truck Service, Inc., seeking to compel the Alabama Child
Support Payment Center ("the payment center"), which is
operated by DHR, to take certain actions to correct an error
in disbursing child-support moneys withheld from the paycheck
of an employee of Ideal Truck Service. Alabama Dep't of Human
Res. v. Ideal Truck Serv., Inc., [Ms. 2050625, March 23, 2007]
__ So. 2d __ (Ala. Civ. App. 2007). Because we conclude that
the trial court lacked subject-matter jurisdiction, we vacate
the trial court's order and dismiss the appeal.
Facts
On August 10, 2000, Laurie L. Miller ("the mother") filed
a complaint for divorce from William J. Miller ("the father")
in the Circuit Court of Mobile County, case no. DR-00-501918.
Two children had been born of their marriage; one was six
years old and the other four years old at the time the
complaint was filed. On January 19, 2001, the trial court
1070042
3
issued a judgment of divorce, awarding the mother custody of
the children, allowing the father to visit the children, and
requiring the father to provide a certain sum of money monthly
for the support of the children. On February 8, 2001, the
trial court issued an income-withholding order for payment of
child support; that order was subsequently amended.
Pursuant to the income-withholding order, the father's
employer would regularly withhold the amount of child support
so ordered from his paycheck and remit that amount to the
payment center. The payment center, in turn, normally
deposited the child-support money withheld from the father's
paycheck into an account held by the mother. Through a
contract with DHR, Tier Technologies, Inc., operates the
payment center.
During the years following the divorce, the father
changed jobs and employers several times and was unemployed at
times. At some point, the father was employed by Ideal Truck
Service. On March 22, 2005, Ideal Truck Service was served
with a copy of an income-withholding order regarding the
father. Pursuant to the income-withholding order, Ideal Truck
Service began withholding income from the father's paycheck
1070042
4
and remitting the withheld funds to the payment center. On
November, 18, 2005, Ideal Truck Service submitted a check to
the payment center in the amount of $837.72. On November 29,
2005, Ideal Truck Service submitted a second check to the
payment center in the amount of $139.62. These two checks
represented funds withheld from the father's paycheck pursuant
to his court-ordered support obligations to his children.
However, Ideal Truck Service mistakenly wrote on those two
checks the case number for the divorce action of a former
Ideal Truck Service employee, whose child-support payments had
previously been processed by the payment center. The payment
center deposited the funds from the two misidentified checks
into the account of the former employee's ex-wife. As a
result, the father's account showed that he was behind in his
child-support payments in the amount of $977.34 (the combined
value of the misidentified checks) and his account accrued
interest based on that "delinquency."
On December 13, 2005, Ideal Truck Service filed an
"Instanter Third Party Motion to Correct Accounting" in the
divorce action between the mother and the father. In its
motion, Ideal Truck Service asked the trial court to order the
1070042
5
payment center to credit the proper child-support account with
the money withheld from the father's paycheck and remitted to
the payment center by the incorrectly identified checks.
Ideal Truck Service further requested that the trial court
order the payment center to remove any interest the father had
incurred on his child-support obligations as a result of the
error in crediting the wrong person with the payment and
placing the money in the wrong person's account. In its
motion, Ideal Truck Service did not ask the trial court to
issue any order to a DHR official or to Tier Technologies.
The certificate of service on Ideal Truck Service's motion
reflects that Ideal Truck Service served the motion on the
mother, the father, and the "Alabama Child Support Payment
Center."
On December 15, 2005, the trial court issued the
following order:
"UPON CONSIDERATION of the Instanter Motion to
Correct Accounting filed by Ideal Truck Service,
Inc., employer of the Defendant, [the father], and
the Affidavit in Support of the Instanter Motion to
Correct Accounting, it is hereby
"ORDERED AND ADJUDGED BY THE COURT AS FOLLOWS:
"1. The Alabama Child Support Payment Center shall
recover immediately the funds in the amount of
1070042
6
[n]ine hundred seventy-seven and 34/100 Dollars
($977.34) erroneously paid to the recipient [K.J.C.]
(Case number DR 1999------) and said funds shall be
paid back to Ideal Truck Service, Inc. at 60 White
Avenue, Fairhope, Alabama 36532.
"2. Ideal Truck Service, Inc. is hereby ordered to
pay the sum of [n]ine hundred seventy-seven and
34/100 Dollars ($977.34) which it withheld from the
Defendant's wages to [the mother]'s account in the
above referenced case."
(Capitalization in original.)
Subsequently, Ideal Truck Service paid $977.34 to the
payment center to be credited to the mother's account, but the
payment center did not recover the funds it had erroneously
paid to the former employee's wife or return those funds to
Ideal Truck Service.
On January 12, 2006, DHR filed a motion requesting the
trial court to vacate its December 15, 2005, order. In its
motion, DHR argued that, because DHR is ultimately responsible
for the operation of the payment center, the sovereign-
immunity provision in Article I, § 14, Const. of Ala. 1901, as
construed by this Court, divested the trial court of
jurisdiction to order the payment center to recover the
misapplied funds and credit the correct account.
1070042
7
The trial court denied DHR's postjudgment motion, and DHR
appealed. The Court of Civil Appeals affirmed the trial
court's order. DHR filed a petition for a writ of certiorari
in this Court, seeking review of the Court of Civil Appeals'
decision, and we granted the petition.
Standard of Review
"'[I]f an action is an action against the State within
the meaning of § 14, [Const. of Ala. 1901,] such a case
"presents a question of subject-matter jurisdiction, which
cannot be waived or conferred by consent."'" Ex parte Davis,
930 So. 2d 497, 499-500 (Ala. 2005) (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)). On questions of subject-matter jurisdiction, this
Court is not limited by the parties' arguments or by the legal
conclusions of the trial and intermediate appellate courts
regarding the existence of jurisdiction. Rather, we are
obligated
to
dismiss
an
appeal
if,
for
any
reason,
jurisdiction does not exist. See Ex parte Smith, 438 So. 2d
766, 768 (Ala. 1983) ("Lack of subject-matter jurisdiction may
not be waived by the parties and it is the duty of an
1070042
8
appellate
court
to
consider
lack
of
subject-matter
jurisdiction ex mero motu." (citing City of Huntsville v.
Miller, 271 Ala. 687, 688, 127 So. 2d 606, 608 (1958))).
Analysis
The relief sought by Ideal Truck Service against the
payment center--an order compelling the payment center to take
action to correct the erroneous deposit of the child-support
money from the father's paycheck into the wrong account--is in
the nature of an injunction against the payment center. Cf.
Dawkins v. Walker, 794 So. 2d 333, 335 (Ala. 2001) ("An
injunction is defined as '[a] court order commanding or
preventing an action.' Black's Law Dictionary 788 (7th ed.
1999). Because the order at issue in this case directs the
[defendant] to take action ... we conclude that the order ...
was injunctive in nature."). Therefore, will evaluate the
relief Ideal Truck Service seeks as injunctive relief for
purposes of our sovereign-immunity analysis.
Article I, § 14, Const. of Ala. 1901, provides "[t]hat
the State of Alabama shall never be made a defendant in any
court of law or equity." Section 14 affords absolute immunity
to both the State and State agencies. Alabama Dep't of
1070042
9
Transp. v. Harbert Int'l, Inc., [Ms. 1050271, March 7, 2008]
__ So. 2d __, __ (Ala. 2007) (noting that it "'is now well
established'" that "'absolute immunity ... extends to the
State and to State agencies'" (quoting Raley v.Main, [Ms.
1050553, December 21, 2007] __ So. 2d __, __ (Ala. 2007)
(Murdock, J., concurring in part and concurring in the
result))); Ex parte Town of Lowndesboro, 950 So. 2d 1203, 1206
(Ala. 2006)(citing Lyons v. River Road Constr., Inc., 858 So.
2d 257, 261 (Ala. 2003)) ("When an action is one against the
State or a State agency, § 14 wholly removes subject-matter
jurisdiction from the courts."). "This absolute immunity from
suit also bars suits for relief by way of mandamus or
injunction." Ex parte Alabama Dep't of Transp., [Ms. 1060078
July 20, 2007] __ So. 2d __, __ (Ala. 2007) (citing Ex parte
Troy Univ., 961 So. 2d 105, 110 (Ala. 2006)). The wall of
absolute immunity created by § 14 for protecting the State and
its agencies from liability is "nearly impregnable." Ex parte
Davis, 930 So. 2d 497, 500 (Ala. 2005). We have long held,
however, that an action for an order or injunction compelling
a State official, in his or her official capacity, to perform
his or her legal duties is not an action against the State
1070042
10
within the meaning of § 14 and, therefore, is not prohibited
by § 14. See Ex parte Carter, 395 So. 2d 65, 68 (Ala. 1980);
see also Harbert, __ So. 2d at __.
The Court of Civil Appeals here held that DHR has a legal
duty to recover child support the payment center distributes
to the wrong recipient; thus, according to the Court of Civil
Appeals, Ideal Truck Service's request for relief was not
prohibited by § 14 because the request sought to compel DHR to
perform its legal duty. In so holding, the Court of Civil
Appeals quoted the following language from our opinion in
State Highway Department v. Milton Construction Co., 586 So.
2d 872, 875 (Ala. 1991):
"'It is true that § 14 of the Constitution
prevents a suit against the state as well as suits
against its agencies. However, this Court has also
recognized
that
there are certain established
exceptions to the protection afforded the state or
its agencies by sovereign immunity. Among those
recognized are actions brought to force state
employees or agencies to perform their legal
duties.'"
__ So. 2d at ___ (emphasis added).
DHR argues that the Court of Civil Appeals erred in
relying on the above-quoted language from Milton to conclude
that an action against a State agency to compel the agency to
1070042
The Court of Civil Appeals issued its opinion in this
1
case relying on Milton before we issued our opinion clarifying
Milton. However, as we explained in Ex parte Alabama
Department of Transportation, [Ms. 1060078, July 20, 2007],
___ So. 2d at ___, Milton did not change the law that § 14
prohibits actions against State agencies.
11
perform a legal duty is not barred by the doctrine of
sovereign immunity. Section 14 prohibits actions against the
State, including actions seeking relief from State agencies.
See Lowndesboro, 950 So. 2d at 1206.
"In Ex parte Alabama Department of Transportation,
[Ms. 1060078, July 20, 2007] ___ So. 2d [__,] at ___
[(Ala. 2007) ], this Court clarified the reason for
1
the trial court's subject-matter jurisdiction in
[Milton]. The trial court had subject-matter
jurisdiction in [Milton], not because the State
Highway Department was a defendant, but because the
director of the State Highway Department, in his
official capacity, was a defendant, and the action
sought to require the director to perform his legal
duties and to pay for the services rendered pursuant
to the contract."
Ex parte Alabama Dep't of Transp., [Ms. 1051661, August 10,
2007] __ So. 2d __, ___ (Ala. 2007). The Court of Civil
Appeals erred insofar as it held that an action against a
State agency, such as DHR, to compel the agency to perform its
legal duties is not barred by the doctrine of sovereign
immunity.
1070042
On March 3, 2008, this Court entered an order striking
2
Ideal Truck Service's responsive brief in this appeal as
untimely filed.
12
We next consider whether Ideal Truck Service's motion for
an order compelling the payment center to credit the amount of
the child support withheld from the father's paycheck to the
correct account and to remove any interest charges attributed
to the father on any "delinquency" in his payments caused by
the misidentification of the account on the check amounts to
an action against a State agency that is prohibited by § 14.
We note that the record contains no indication that, in its
arguments before the trial court and the Court of Civil
Appeals, Ideal Truck Service offered any basis in law or fact
2
for the conclusion that the relief it seeks against the
payment center falls within the well-recognized exception to
§ 14 that permits actions against State officials to compel
them to perform their legal duties. Neither has Ideal Truck
Service offered any arguments or support for the conclusion
that precedent prohibiting actions naming State agencies as
defendants should be overruled or modified in any way. "Even
if we would be amenable to such a request [that we overrule a
line of authority], we are not inclined to abandon precedent
1070042
13
without a specific invitation to do so." Clay Kilgore
Constr., Inc. v. Buchalter/Grant, L.L.C., 949 So. 2d 893, 898
(Ala. 2006). "Stare decisis commands, at a minimum, a degree
of respect from this Court that makes it disinclined to
overrule controlling precedent when it is not invited to do
so." Moore v. Prudential Residential Servs. Ltd. P'ship, 849
So. 2d 914, 926 (Ala. 2002).
The use of the word "State" in § 14 protects only
"immediate and strictly governmental agencies of the State"
from suit. Rodgers v. Hopper, 768 So. 2d 963, 966 (Ala.
2000). In determining whether a legislatively created body is
"'an immediate and strictly governmental agency' and thus
entitled to protection from suit under § 14," this Court
considers "several factors ... including ... '(1) the
character of the power delegated to the body; (2) the relation
of the body to the State; and (3) the nature of the function
performed by the body.'" Ex parte Troy Univ., 961 So. 2d at
109-10 (quoting Rodgers, 768 So. 2d at 966 (citing Armory
Comm'n v. Staudt, 388 So. 2d 991, 993 (Ala. 1980))). We hold
that the same factors ("the Staudt factors") are informative
in determining whether an entity established by a State agency
1070042
14
at the direction of the legislature is part of that agency for
purposes of sovereign immunity.
Title IV-D of the Social Security Act requires that
"the State agency must establish and operate a unit
(which shall be known as the 'State disbursement
unit') for the collection and disbursement of
payments under support orders ...."
42 U.S.C. 654b(a)(1).
In accordance with the Congressional directives contained
in 42 U.S.C. § 654b(a)(1), § 30-3-195, Ala. Code 1975,
requires DHR, as the State Title IV-D agency, to "establish
and operate a unit, which shall be known as the State
Disbursement Unit, for the collection and disbursement of
payments made under support orders ...."
S e c t i on 30- 3 - 1 9 5
further states that the "accurate identification of payments
received" and the "prompt disbursement of the custodial
parent's share of any payment" are the duties of the "State
Disbursement Unit," i.e., the payment center. Ala. Code
1975, § 30-3-195(c)(2) and (3). Section 30-3-195 expressly
places on DHR the responsibility for operating the "State
Disbursement Unit," either "directly" or by a "contractor
responsible directly to" DHR. § 30-3-195(b). In accordance
with 42 U.S.C. § 654b and Ala. Code 1975, § 30-3-195, DHR
1070042
15
established the payment center; it operates the payment center
through its agent, Tier Technologies.
In considering the character of the power delegated to,
and the nature of the function performed by, the payment
center, it is apparent, in light of the above statutes, that
the powers, duties, and functions conferred on the payment
center are powers, duties, and functions legislatively
delegated to DHR in conjunction with DHR's role as the State
agency charged with carrying out the provisions of Title IV-D
of the Social Security Act. See 42 U.S.C. § 654b; Ala. Code
1975, § 30-3-195. Thus, the first and third Staudt factors--
"'the character of the power delegated to the body'" and "'the
nature of the function performed by the body'"--support the
conclusion that the payment center is a unit of DHR for
purposes of sovereign immunity. See Troy Univ., 961 So. 2d
at 109-10. In considering the relation of the payment center
to the State agency, we note that DHR established the payment
center and that it is directly and ultimately responsible for
the payment center's operations, Ala. Code 1975, § 30-3-
195(b). Therefore, the second Staudt factor-- "'the relation
of the body to the State'"--also supports the conclusion that
1070042
We note that Ideal Truck Service did not in its motion
3
request the trial court to enter any order directed to Tier
Technologies. We express no opinion as to the application
sovereign-immunity principles to Tier Technologies.
16
the payment center is part of DHR and shares DHR's immunity.
See Troy Univ., 961 So. 2d at 109. Accordingly, we must
conclude that an injunction against the payment center is an
3
injunction against DHR itself, and, therefore, § 14 prohibits
such an injunction.
DHR further argues that the payment center is not
responsible to recoup child-support funds that the payment
center distributes to the wrong person as a result of a third
party's error. Thus, according to DHR, the Court of Civil
Appeals erred in holding that DHR is legally obligated to
recoup from the former employee's ex-wife the child-support
funds the payment center erroneously deposited in her account.
Because
sovereign
immunity
precludes
subject-matter
jurisdiction in this case, we are without jurisdiction to
consider whether or to what extent DHR or the payment center
is obligated to recoup incorrectly disbursed child-support
funds.
Thus,
although
we
hold
that
subject-matter
jurisdiction is lacking as the case is presently stated, we
express no opinion as to whether Ideal Truck Service could
1070042
17
have obtained relief from a State official pursuant to our
well-recognized authority that a State official may, in his or
her official capacity, be subject to an action to compel him
or her to perform his or her legal duties.
Because sovereign immunity precludes a civil action
against the payment center, the trial court did not have
jurisdiction to entertain Ideal Truck Service's request for
injunctive relief against the payment center, and the trial
court's order granting such injunctive relief is void. Gulf
Beach Hotel, Inc. v. State ex rel. Whetstone, 935 So. 2d 1177,
1182 (Ala. 2006) ("Where 'the trial court ha[s] no subject-
matter jurisdiction, [it has] no alternative but to dismiss
the action.' '"Any other action taken by a court lacking
subject matter jurisdiction is null and void."'" (quoting
State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1029
(Ala. 1999) (citations omitted))). Our remedy in such a
situation, when we find no subject-matter jurisdiction in the
trial court, is to dismiss the appeal and vacate the trial
court's judgment. Therefore, we vacate the trial court's
order granting Ideal Truck Service relief against the payment
center, and we dismiss this appeal. See Alabama Dep't of
1070042
18
Revenue v. Arnold, 909 So. 2d 192, 193 (Ala. 2005) (citing
Dunning v. New England Life Ins. Co., 890 So. 2d 92, 98 (Ala.
2003)).
JUDGMENT VACATED; APPEAL DISMISSED.
See, Lyons, Woodall, Stuart, Smith, Bolin, Parker, and
Murdock, JJ., concur. | June 20, 2008 |
ec024f7e-c21d-4228-8d56-47597b7ed829 | Ex parte Madison County Board of Education and Jim Nash, personnel director for the Madison County Board of Education. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: A.S., a minor, by and through her natural parents and next friends, J.S. and R.S.; et al. v. William Ford Re Application Overruled; Opinion of March 14, 2008 Withdrawn; Opinion Substituted; Petition Granted in Part and Denied in Part; Writ Issued. | N/A | 1061715 | Alabama | Alabama Supreme Court | REL: 06/27/2008
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, 2007-2008
____________________
1061715
____________________
Ex parte Madison County Board of Education and Jim Nash,
personnel director for the Madison County Board of Education
PETITION FOR WRIT OF MANDAMUS
(In re: A.S., a minor, by and through her natural parents
and next friends, J.S. and R.S.; et al.
v.
William Ford Reaves et al.)
(Madison Circuit Court, CV-05-217)
On Application for Rehearing
STUART, Justice.
1061715
2
This Court's opinion of March 14, 2008, is withdrawn, and
the following is substituted therefor.
The Madison County Board of Education ("the Board") and
Jim Nash, the personnel director for the Board, petition this
Court for a writ of mandamus directing Judge Karen K. Hall to
grant their motions for a summary judgment dismissing the
federal 42 U.S.C. § 1983 claim against them on the basis of
qualified immunity. We grant the petition as to Nash and deny
it as to the Board.
Facts
During the fall of 2002, A.S. was an 11-year-old fifth-
grade student attending Madison County Elementary School.
According to A.S., her physical-education teacher, William
Ford Reaves, raped her. She did not tell anyone about the
rape, but she asked to be removed from Reaves's physical-
education class. Her class schedule was changed, and she had
no further contact with Reaves. In January 2003, A.S.
transferred to Riverton Middle School. Her parents did not
provide Madison County Elementary School officials with any
reason for the transfer. However, it appears from the
materials submitted to this Court that A.S. wanted to change
1061715
3
schools because some of the other students at Madison County
Elementary School made fun of her learning and speech
disabilities.
In May 2004, A.S. told a couple of girlfriends at
Riverton Middle School that Reaves had raped her. The
girlfriends encouraged A.S. to tell the counselor at Riverton
Middle School. After A.S. informed the school counselor about
the rape, the school counselor notified A.S.'s parents and the
principal at Riverton Middle School, who notified Nash. Nash
immediately placed Reaves on administrative leave and went to
Riverton Middle School to investigate. Nash and the principal
met with A.S.'s parents; A.S.'s parents refused to allow Nash
to interview A.S. As part of his investigation into the
allegation, Nash interviewed the principal, the assistant
principal, the counselor at Madison County Elementary School,
Reaves, a student teacher under Reaves's supervision, and an
aide in Reaves's class. The student teacher and the aide
stated that they had never seen Reaves act inappropriately.
Nash reported his findings to the superintendent. School
and/or
Board
officials
arranged
for
A.S.
to
receive
counseling.
It appears that over a period of 16 years before they
became aware of this allegation, school and/or Board officials
1061715
Nash did not participate in the investigations of the
1
first reported incident in 1986 or the fourth reported
incident in 1996.
4
had investigated various allegations of inappropriate conduct
by Reaves on 5 occasions and had placed written reports in
Reaves's employee file. Nash was aware of three of the five
investigations at the time they were being conducted, and
1
school officials reprimanded Reaves in some form in response
to each investigation.
The first investigation occurred in 1986, before Nash
became personnel director. The report of that investigation
indicated that Reaves had been accused of inappropriately
touching a female high-school student on her buttocks and
inappropriately commenting that another female high-school
student was "looking good." The high-school principal orally
reprimanded Reaves and placed a notation about the incident in
Reaves's employee file.
The second reported incident occurred in 1990. A female
student complained to her high-school principal that Reaves
had asked her if she liked sex, had walked into the girls'
locker room while female students were changing clothes, had
straddled her legs while she performed sit-ups in his
1061715
5
physical-education class, had touched her breast through her
clothing, and had rubbed her leg. Nash and other school
officials investigated the allegation and obtained written
statements from the student and three other student witnesses.
The student was removed immediately from Reaves's class. When
the principal confronted Reaves, Reaves denied the accusations
and stated that he would be more careful in his conduct toward
students. The principal and the assistant principal increased
their supervision of Reaves.
The third reported incident occurred in 1991 when two
female
high-school
students
informed
the
high-school
principal
that Reaves had touched the legs of one of the female
students, had commented that she should not have worn a
certain shirt because he could see her black bra, had stated
that "he bet there wasn't a girl in the school he couldn't
get," and had rubbed a female student's hair, commented on her
chest, and patted her on the stomach. The principal and Nash
interviewed the two students making the complaint, as well as
two other female students. The two students alleging the
misconduct by Reaves made written statements about the
incidents. The principal and Nash also reinterviewed two of
1061715
6
the students who had been involved in the 1990 investigation
and were told of additional inappropriate sexual conduct and
comments by Reaves. The students' schedules were changed and
they had no further contact with Reaves. When confronted with
the accusations, Reaves denied the misconduct. School
officials, including the superintendent, met with the Board's
attorney and determined, with counsel's advice, that there was
insufficient evidence to terminate the employment of Reaves,
a tenured teacher. Another written reprimand was placed in
Reaves's file, and he was transferred to Madison County
Elementary School, where he would not have contact with high-
school-age females.
In 1996, the fourth report was created when a female
student at Madison County Elementary School and her mother
reported that Reaves had told the student to "suck my right
nut." The principal investigated the incident, and Reaves
denied making the statement, stating that he had instead said
"suck my nose." The principal, who did not involve Nash in
the investigation of the incident, informed Reaves that any
additional report would result in a recommendation that
Reaves's employment be terminated.
1061715
It is unclear from the materials submitted to this Court
2
whether this incident occurred before or after the alleged
rape of A.S.
According to the materials before this Court, criminal
3
charges were filed against Reaves but were subsequently
dropped.
7
The fifth incident occurred in 2002 when female students
in Reaves's physical-education class complained to the school
counselor about the way Reaves made them perform push-ups.2
The school counselor reported the complaints to the principal
but refused to give the principal the students' names. The
principal investigated and interviewed two adult female
teaching assistants in Reaves's class. The assistants
informed the principal that the female students had performed
the push-ups in the normal and proper way. The principal
confronted Reaves and ordered him not to place himself in such
a questionable situation in the future.
In 2004, when school officials and Nash learned of A.S.'s
accusation
that
Reaves
had
raped
her
in
2002,
Nash
3
immediately placed Reaves on administrative leave. Reaves
retired before a decision was made as to whether to terminate
his employment.
1061715
8
In 2005, A.S. and her parents sued Reaves, the Board,
Nash, and others alleging state and federal claims, including
a Title IX claim and the following 42 U.S.C. § 1983 claim:
"46. The School Board defendants [which include
the Board and Nash] deprived plaintiff A.S. of the
constitutional right to be free from sexual abuse
and molestation under the color of state law and
acted with deliberate indifference.
"47. The School Board defendants violated 42
U.S.C.A. § 1983 (2000) by allowing an employee, the
defendant
Reaves,
to continue teaching and/or
coaching with multiple complaints on his record for
sexual harassment while taking no action to punish
this pedophile or to stop this pedophile's sexual
misconduct. As a proximate result of the said
violation, the plaintiff A.S. was sexually molested
and raped.
"48. The above named defendants also failed to
develop, implement or administer procedures or
policies reasonably designed to provide protection
for the mentally handicapped plaintiff from sexual
molestation while attending a public school.
"49. This violation of 42 U.S.C.A. § 1983
(2000) by the above named Defendants, proximately
caused injuries and damage to the Plaintiff, A.S.
..."
The Board and Nash answered, alleging among other defenses
State-agency immunity, immunity under the Eleventh Amendment
to the United States Constitution, and qualified immunity. In
2007, they moved for a summary judgment, arguing that they
1061715
9
were immune from liability. After conducting a hearing, the
trial court entered a summary judgment for Nash on all state-
law claims, entered a summary judgment for Nash and the Board
on the Title IX claim, and denied the Board's and Nash's
summary-judgment motion on A.S.'s § 1983 claim. The Board and
Nash timely filed this petition for a writ of mandamus.
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 Integon Corp., 672 So. 2d 497, 499
(Ala. 1995).... Our review is further
limited to those facts that were before the
trial court. Ex parte American Resources
Ins. Co., 663 So. 2d 932, 936 (Ala. 1995).'
"Ex parte National Sec. Ins. Co., 727 So. 2d 788,
789 (Ala. 1998)."
Ex parte Alabama Dep't of Youth Servs., 880 So. 2d 393, 398
(Ala. 2003).
"'While the general rule is that the
denial of a motion for summary judgment is
not reviewable, the exception is that the
denial of a motion grounded on a claim of
immunity is reviewable by petition for writ
1061715
10
of mandamus. Ex parte Purvis, 689 So. 2d
794 (Ala. 1996)....
"'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).
"'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 Rizk, 791 So. 2d 911, 912-13 (Ala. 2000)."
1061715
A.S. argues the Board waived any immunity it might have
4
had because the Board did not present the defense of immunity
to the trial court as a ground for summary judgment. We,
however, need not determine whether the Board waived the
ground of immunity because federal immunity is not available
to the Board.
11
Ex parte Turner, 840 So. 2d 132, 135 (Ala. 2002). See also Ex
parte Sawyer, 876 So. 2d 433 (Ala. 2003)(addressing a petition
for a writ of mandamus filed by a public official seeking
review of the trial court's denial of immunity in a § 1983
action).
Discussion
The Board and Nash contend that they have a clear legal
right to a summary judgment on A.S.'s § 1983 claim.
First, the Board contends that it has a clear legal right
to a summary judgment on A.S.'s § 1983 claim because, it says,
it is immune from suit under § 1983. In Monell v. New York
4
City Department of Social Services, 436 U.S. 658, 694 (1978),
the United States Supreme Court held that a cause of action
under § 1983 can be brought against a local government when
its official policies result in a constitutional tort. In
Jett v. Dallas Independent School District, 491 U.S. 701, 737
(1989), the Supreme Court further held that it is a court's
1061715
12
duty to identify governmental bodies "who speak with final
policymaking authority for the local governmental actor
concerning the action alleged to have caused the particular
constitutional or statutory violation at issue." However, it
is well established that if a local government body is acting
as an "arm of the State," which includes agents or
instrumentalities of the State, then Eleventh Amendment
immunity bars the suit. Mt. Healthy City Sch. Dist. Bd. of
Educ. v. Doyle, 429 U.S. 274, 280 (1977), and Regents of the
Univ. of California v. Doe, 519 U.S. 425, 429-30 (1997).
"Whether a defendant is an 'arm of the State' must be assessed
in light of the particular function in which the defendant was
engaged when taking the actions out of which liability is
asserted to arise." Manders v. Lee, 338 F.3d 1304, 1308 (11th
Cir. 2003). See McMillan v. Monroe County, Alabama, 520 U.S.
781, 785-86 (1997); Jett, 491 U.S. at 738 (question is whether
school superintendent "possessed final policymaking authority
in the area of employee transfers"). Secondly, the
determination is dependent on an analysis of state law.
McMillan, 520 U.S. at 786.
1061715
13
In Manders, the United States Court of Appeals for the
Eleventh Circuit acknowledged that although the decision
whether an entity is an "arm of the State" for Eleventh
Amendment purposes is a question of federal law, "the federal
question can be answered only after considering provisions of
state law." 338 F.3d at 1309. See also Regents of the Univ.
of California, 519 U.S. at 429 n.5 (stating that the Eleventh
Amendment question "can be answered only after considering the
provisions of state law that define the agency's character").
To assist in the analysis, the Manders court established the
following four-factor test to apply when determining whether
an entity is an "arm of the State" in carrying out a
particular function:
"(1) [H]ow state law defines the entity; (2) what
degree of control the State maintains over the
entity; (3) where the entity derives its funds; and
(4) who is responsible for judgments against the
entity."
338 F.3d at 1309. We apply this four-factor federal law test
to the facts of this case to determine whether the Board is an
1061715
The Eleventh Amendment to the United States Constitution
5
states: "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or
prosecuted against any one of the United States by Citizens of
another State or by Citizens or Subjects of any Foreign
State."
14
"arm of the State" and thus entitled to Eleventh Amendment
immunity.5
In the case before us, the Board's function that is at
issue here involves the Board's ability to transfer and/or
terminate a teacher's employment. It is with regard to this
particular function that we will evaluate whether the Board is
entitled to Eleventh Amendment immunity.
1. How State law defines a county board of education.
The Alabama Legislature has specifically defined and
designated the responsibilities of a county board of
education. In § 16-8-1, Ala. Code 1975, the legislature
provided that a county board of education "shall be composed
of five members, who shall be elected by the qualified
electors of the county." Section 16-1-30(b), Ala. Code 1975,
provides that a county board of education shall determine its
own written educational policy for the board and its employees
and "shall prescribe rules and regulations for the conduct and
1061715
15
management of the schools." A county board of education is
vested with the "general administration and supervision" of
the schools in its county. § 16-8-8, Ala. Code 1975.
Specifically, a county board of education "may suspend or
dismiss for immorality, misconduct in the office, ... or
whenever, in the opinion of the board, the bests interests of
the school require it, superintendents, principals, teachers,
or any other employees ...." § 16-8-23, Ala. Code 1975.
Likewise, a county board of education can transfer any teacher
to a different position, school, or grade if the board
determines a transfer is needed. § 16-24-5, Ala. Code 1975.
The legislature also specifically provided that a teacher
subject to transfer or termination has the right to contest
the board's decision by a hearing before the board. § 16-24-6,
Ala. Code 1975. Thus, the Board maintains significant
authority with regard to the employment and conduct of its
teachers; this factor lends little weight to the Board's being
considered an "arm of the State" and thereby entitled to
Eleventh Amendment immunity.
2. The degree of control the State maintains over the
county board of education.
1061715
16
The Board argues that because the State superintendent of
education has final, binding "authority to review actions and
orders of county and city boards of education ... in matters
relating to finance and other matters seriously affecting the
educational interest," see § 16-4-8, Ala. Code 1975, a county
board of education is governed by and limited by the
boundaries set by the State. The Board provides an extensive
list of limitations placed on the authority of county boards
of education. This Court, however, has specifically
recognized:
"However broad may be the powers of the State Board
of Education, ... we think it clear that the
authority
to
exercise
general
control
and
supervision over the county ... boards of education
does not include the authority to exercise the
powers and authority which the Legislature has
specifically conferred upon such local boards.
"....
"In regard to the authority to transfer or
reassign teachers from one public school to another
public school within a ... county school system, it
is conferred upon local boards of education ...."
In re Opinion of the Justices No. 180, 276 Ala. 239, 241, 160
So. 2d 648, 650 (1964).
1061715
17
Thus, because the legislature has specifically vested in
county boards of education the authority to transfer, suspend,
or dismiss teachers, this second factor does not weigh in
favor of the Board's being considered an "arm of the State"
and thereby entitled to Eleventh Amendment immunity.
3. Where the county board of education derives its
funds.
The Board argues that because this Court has held that
all public-school funds are State funds, whether collected at
the State or the local level, we must conclude that this
factor weighs heavily in favor of the Board's being considered
an "arm of the State." See Mobile, Alabama-Pensacola,
Florida, Bldg. & Constr. Trades Council v. Williams, 331 So.
2d 647, 648 (Ala. 1976)(holding that regardless of whether the
public-school funds come from the State treasury or from local
taxation, public-school funds are State funds); and State v.
Tuscaloosa County, 233 Ala. 611, 613, 172 So. 892, 894
(1937)("[P]ublic school funds, as between the county and
State, are State funds."). The fact that this Court has
declared all public-school funds to be State funds does not
address the question from where the Board derives its funds.
1061715
The Board in its brief on application for rehearing
6
provided information from the Alabama Education Department,
Annual Report 2004, indicating that in 2004 the Board received
54.24% of its funding from the State. This information,
however, is contained in the argument of counsel and is not
supported by any documentation.
18
Nothing properly before us indicates the source of the Board's
funds; therefore, without any documentation to support this
6
factor, we cannot conclude that it weighs in favor on the
Board.
4. Who is responsible for judgments against the entity.
The Board boldly asserts that, "[i]f all school funds are
State funds, then any judgment against the Madison County
Board of Education must be satisfied entirely from State funds
allocated and intended for the education of students in
Madison County." As with the third factor, such a general
conclusion without any evidentiary support does not support
the conclusion that any judgment against the Board would be
payable out of the State treasury.
Thus, application of the Manders test to the facts before
us does not support a finding that the Board has established
a right to Eleventh Amendment immunity.
1061715
19
Before the United States Court of Appeals for the
Eleventh Circuit developed the Manders test, the court
addressed a situation similar to the one before us in Stewart
v. Baldwin County Board of Education, 908 F.2d 1499 (11th Cir.
1990). The court held that the Baldwin County Board of
Education was not entitled to Eleventh Amendment immunity
because the Baldwin County Board of Education was not acting
as an arm or alter ego of the State. Recognizing that
Eleventh Amendment immunity extended to an entity that was an
arm of the State, the court noted that because the Baldwin
County Board of Education managed its own funding, established
the general policy for education in Baldwin County schools,
administered and supervised education in the schools in
Baldwin County, and was "subject to a significant amount of
local control," 908 F.2d at 1511, the Baldwin County Board of
Education could not be considered an arm of the State and
therefore was not entitled to Eleventh Amendment immunity.
The Board argues in its application for rehearing that
this Court should not find Stewart persuasive, in light of the
holdings in McMillan and Regents of the University of
California. However, we recognize that "[u]ltimately, of
1061715
20
course, the question whether a particular state agency has the
same kind of independent status as a county ... is a question
of federal law." Regents of the Univ. of California, 519 U.S.
at 430 n. 5. Moreover, as the McMillan Court stated:
"[O]ur inquiry is dependent on an analysis of state
law. ... This is not to say that state law can
answer the question for us by, for example, simply
labeling as a state [agency] an [agency that]
clearly makes county policy. But our understanding
of the actual function of a governmental [agency],
in a particular area, will necessarily be dependent
on the definition of the [agency's] functions under
relevant state law."
520 U.S. at 786. Thus, because § 1983 liability is
determined by federal law, and because Stewart, which holds
that a board of education is not entitled to Eleventh
Amendment immunity, reflects what we understand to be the
federal law with regard to the status of a county board of
education and its authority to suspend, dismiss, or terminate
a teacher, we conclude that the Board, which fulfills the
same role for the schools in Madison County as the Baldwin
County Board of Education does for the schools in Baldwin
County, is also not an arm of the State for the purposes of §
1983 liability and is not entitled to Eleventh Amendment
immunity.
1061715
21
Because the Board has not established that it is entitled
to immunity from the § 1983 claims, it has not established a
clear legal right to a summary judgment on immunity grounds,
and the petition for the writ of mandamus is denied in this
regard.
Nash also contends that he has a clear legal right to a
summary judgment on A.S.'s § 1983 claim, because, he says, he
is entitled to qualified immunity.
"'[G]overnment
officials
performing
discretionary
functions
generally
are
shielded from liability for civil damages
insofar as their conduct does not violate
clearly
established
statutory
or
constitutional rights of which a reasonable
person would have known.'
"Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 73 L.Ed.2d 396 (1982). 'Qualified immunity is
designed to allow government officials to avoid the
expense and disruption of going to trial, and is not
merely a defense to liability.' Hardy v. Town of
Hayneville, 50 F. Supp. 2d 1176, 1189 (M.D. Ala.
1999). 'An official is entitled to qualified
immunity if he is performing discretionary functions
and his actions do "'not violate clearly established
statutory or constitutional rights of which a
reasonable person would have known.'"' Hardy, 50 F.
Supp. 2d at 1189 (quoting Lancaster v. Monroe
County, 116 F.3d 1419, 1424 (11th Cir. 1997))."
Ex parte Alabama Dep't of Youth Servs., 880 So. 2d at 402.
First, we must determine whether A.S. has established a
1061715
22
clear constitutional right to be safe from sexual abuse by a
teacher while in school. In C.B. v. Bobo, 659 So. 2d 98
(Ala. 1995), this Court recognized:
"'If the Constitution protects a schoolchild
against being tied to a chair or against arbitrary
paddlings, then surely the Constitution protects a
schoolchild from physical abuse ... by a public
schoolteacher. ... It is uncontrovertible that
bodily integrity is necessarily violated when a
state actor sexually abuses a schoolchild and that
such misconduct deprives the child of rights
vouchsafed by the Fourteenth Amendment. Obviously,
there is never any justification for sexually
molesting
a
schoolchild,
and
thus,
no
state
interest, analogous to the punitive and disciplinary
objectives attendant to corporal punishment, which
might support it.'"
659 So. 2d at 103-04 (quoting Doe v. Taylor Indep. Sch. Dist.,
15 F.3d 443, 450-52 (5th Cir. 1994)(emphasis added in C.B.)).
A.S.'s
complaint
alleges
a
violation
of
her
constitutional right to bodily integrity –- "to be free from
sexual abuse and molestation." Nash recognizes that A.S.
pleads this clearly established constitutional right, and he
appears to concede that A.S.'s right to bodily integrity may
have been violated by Reaves's actions.
Next, we must consider whether A.S. can establish that
Nash acted with deliberate indifference to the violation of
1061715
23
her constitutional right to bodily integrity. In Ray v.
Foltz, 370 F.3d 1079 (11th Cir. 2004), the United States
Court of Appeals for the Eleventh Circuit held that, to
overcome qualified immunity, not only must the government
official
violate
a
clearly
established
statutory
or
constitutional right of the plaintiff, but the government
official also must have acted with deliberate indifference to
that right. The Court of Appeals stated:
"Deliberate indifference is not the same thing
as negligence or carelessness. See Estelle v.
Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d
251 (1976). On the contrary, the Supreme Court has
made
clear
that
a
state
official
acts
with
deliberate indifference only when he disregards a
risk of harm of which he is actually aware. Farmer
v. Brennan, 511 U.S. 825, 836, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994) (to be deliberately indifferent
a state 'official must both be aware of facts from
which
the
inference
could
be
drawn
that
a
substantial risk of serious harm exists, and he must
also draw the inference')(emphasis added). ...
"Following this guidance, we have stated that in
order
to
establish
deliberate
indifference,
plaintiffs must be able to [establish] that the
defendant (1) was objectively aware of a risk of
serious harm; (2) recklessly disregarded the risk of
harm; and (3) this conduct was more than merely
negligent. McElligott v. Foley, 182 F.3d 1248, 1255
(11th Cir. 1999)."
370 F.3d at 1083.
1061715
The
parties
agree
that
Nash
was
performing
a
7
discretionary function; therefore, our focus is solely on
whether Nash's actions violated A.S.'s constitutional right.
24
Nash contends that he presented substantial evidence
indicating that he is entitled to qualified immunity because
he was performing a discretionary function and because, he
argues, his actions did not violate A.S.'s constitutional
right. Specifically, he maintains that a reasonable person
7
would not view his actions as being deliberately indifferent
to A.S.'s constitutional right to bodily integrity. A.S.
contends that Nash demonstrated deliberate indifference to the
risk of harm to the female students at the elementary school
and to her specifically by his failure to recommend to the
superintendent that Reaves's employment by the Madison County
Board of Education be terminated. Specifically, she maintains
that Nash had notice of the risk of harm to her and other
female students "by allowing an employee, the defendant
Reaves, to continue teaching and/or coaching with multiple
complaints on his record for sexual harassment while taking no
action to punish this pedophile or to stop this pedophile's
sexual misconduct." Because A.S. alleges that Nash is
individually liable for a constitutional injury caused
1061715
25
directly by someone else, her claim against Nash rests on
"supervisor liability."
"'"Supervisor 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. 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
[she]
fails
to
do
so.
The
deprivations that constitute widespread
abuse
sufficient
to
noti[fy]
the
supervising official must be obvious,
flagrant,
rampant,
and
of
continued
duration,
rather
than
isolated
occurrences."'
"Braddy v. Florida Dep't of Labor & Employment Sec.,
133 F.3d 797, 802 (11th Cir. 1998)(quoting Brown v.
Crawford,
906
F.2d
667,
671
(11th
Cir.
1990)(citations
omitted
and
emphasis
added)).
Accord George v. McIntosh-Wilson, 582 So. 2d 1058,
1062-63 (Ala. 1991)."
Ex parte Alabama Dep't of Youth Servs., 880 So. 2d at 403.
In Doe ex rel. Doe v. City of Roseville, 296 F.3d 431
(6th Cir. 2002), the United States Court of Appeals for the
Sixth Circuit confronted a factual situation similar to the
one now before this Court. In Roseville, a female elementary-
school student alleged that she had been abused by one of her
1061715
26
male elementary-school teachers in 1992. The teacher had had
complaints alleged against him throughout his teaching career.
During the 1975-76 and 1976-77 school years, several girls
alleged that the teacher had touched them inappropriately.
The teacher received an oral warning. The teacher was
transferred to a different elementary school, and in 1979 the
superintendent was notified that the teacher had fondled four
sixth-grade
girls.
The
superintendent
investigated,
concluded
that the teacher had used "poor judgment," placed a sealed
letter of reprimand in his file, and transferred him to yet
another school. No additional allegations of improper
behavior were made until 1988 when several girls reported that
the
teacher
had
touched
them
inappropriately.
The
superintendent conducted another investigation and issued a
letter of reprimand. Additionally, the superintendent
contacted the board of education and the district attorney,
informing them of the two incidents requiring a letter of
reprimand. The teacher was again transferred, and in 1992 and
1993 the special-education student who was the plaintiff in
the Roseville case was allegedly sexually abused. "The abuse
included [the teacher's] removing her clothing; touching her
1061715
27
private parts with his hands and penetrating her vagina with
his fingers; taking her into the boys' bathroom and, while
wearing [a] mask, tying her wrists with rope, gagging her,
hanging her from a hook on the door and hitting her with a
small wooden bat; and ... while again wearing a mask, putting
his fingers in her vagina and slapping her face." 296 F.3d at
435-36. The student did not immediately report the abuse, but
informed her parents of it in 1994, almost a year after a
criminal investigation had been initiated against the teacher
regarding another unrelated incident of sexual abuse against
a neighbor of the teacher's.
The student sued several entities and individuals
involved in employing and supervising the teacher, including
the superintendent who investigated the incidents, asserting,
among other claims, a § 1983 claim. In determining whether
the supervisors were immune from the § 1983 claim, the Court
of Appeals recognized that
"it is not enough for the plaintiff to show that the
defendant supervisors were sloppy, reckless or
negligent in the performance of their duties.
Rather, ... '[a] plaintiff must show that, in light
of the information defendants possessed, the teacher
who engaged in sexual abuse showed a strong
likelihood that he would attempt to sexually abuse
1061715
28
other students, such that the failure to take
adequate
precautions
amounted
to
deliberate
indifference to the constitutional rights of the
students.'...
Put
another
way,
we
said,
the
plaintiff must show that the 'defendants' conduct
amounted to a tacit authorization of the abuse.'"
296 F.3d at 439.
The court in Roseville acknowledged that the conduct of
the supervisors was "disturbing," but it held that their acts
did not constitute participation in or knowing acquiescence to
the abuse. Noting that the teacher's actions were sporadic -–
occurring in 1976 and then not until 1988, more than 10 years
apart -– the court concluded that the supervisors were not
confronted with conduct that was "'obvious, flagrant, rampant,
and of continued duration.'" 296 F.3d at 440 (quoting Braddy
v. Florida Dep't of Labor & Employment Sec., 133 F.3d 797, 802
(11th Cir. 1998)). The court then stated:
"Viewed from the
perspective
of
the
twenty-first
century, the responses of [the supervisors] to
reports of [the teacher's] conduct are disturbing.
Hindsight
reveals
that
[the
teacher]
was
a
pedophile. But our task is not to reconstruct the
reality of [the teacher's] proclivities. Our task
is to determine whether [the supervisors] were
confronted with conduct that was 'obvious, flagrant,
rampant, and of continued duration, rather than
isolated
occurrences,'
...
or
with
'such
a
widespread pattern of constitutional violations' ...
that
their
actions
demonstrated
deliberate
1061715
Nash was involved in investigating only two incidents --
8
the 1990 and 1991 incidents -- before the incident involving
A.S. Nash's investigation of the 1991 incident, which
involved revisiting the 1990 incident, resulted in meetings
29
indifference to the danger of [the teacher's]
sexually abusing students. We hold that they were
not. We cannot weave the threads of such a pattern
on the loom of hindsight, and the facts as [the
student] portrays them do not demonstrate anything
more
than
negligence
on
the
part
of
these
defendants.
Although
[the
student]
had
a
constitutional right to be free from sexual abuse at
the hands of a school teacher or official, she did
not have a constitutional right to be free from
negligence in the supervision of the teacher who is
alleged to have actually abused her. Negligence is
not enough to impose section 1983 liability on a
supervisor."
296 F.3d at 440-41. The court then held that the supervisors
were entitled to qualified immunity.
Like the Court of Appeals for the Sixth Circuit in
Roseville, we conclude that Nash's actions were at most
negligent and that he is entitled to qualified immunity. Nash
presented substantial evidence indicating that the previous
incidents of misconduct by Reaves were not "obvious, flagrant,
rampant, and of continued duration," but were 5 isolated
occurrences over a 16-year period that did not provide a basis
for terminating Reaves's employment or provide him with
sufficient notice that Reaves would seriously harm A.S. A.S.
8
1061715
with various school officials, including the superintendent,
to discuss whether a recommendation should be made to the
Board to terminate Reaves's employment.
30
relies on the facts that Nash had knowledge of the past
incidents involving Reaves, that he had investigated the
incidents and believed the female students' claims of
misconduct by Reaves, and that he had failed to recommend to
the Board or to other Board officials after investigating
those incidents that Reaves's employment be terminated; these
instances, however, do not amount to deliberate indifference
but to, at most, negligence. As the Court of Appeals for the
Sixth Circuit recognized, we cannot use hindsight to conclude
that Nash inferred from these incidents that Reaves posed a
substantial risk of harm to the female students. Thus,
because Nash has established a clear legal right to qualified
immunity, he is entitled to a summary judgment on A.S.'s §
1983 claim. Therefore, Nash has shown a clear legal right to
a dismissal of A.S.'s § 1983 claim on the ground of federal
qualified immunity.
Conclusion
Because the Board has failed to establish that it is
entitled to immunity, we deny the petition as to it. Nash,
1061715
31
however, has established that he is entitled to immunity on
A.S.'s § 1983 claim; therefore, he has established a clear
legal right to the dismissal of that claim, and the trial
court is directed to enter a summary judgment in favor of Nash
on A.S.'s § 1983 claim.
APPLICATION OVERRULED; OPINION OF MARCH 14, 2008,
WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED IN PART AND
DENIED IN PART; WRIT ISSUED.
Cobb, C.J., and See, Lyons, Woodall, Smith, and Bolin,
JJ., concur.
Stuart, J., concurs specially.
Parker and Murdock, JJ., concur in the result.
1061715
32
STUART, Justice (concurring specially).
I recognize that whether the Madison County Board of
Education ("the Board") is an "arm of the State" and is thus
entitled to immunity under the Eleventh Amendment to the
United States Constitution for a 42 U.S.C. § 1983 claim is a
question of federal law. I further recognize that under
current federal law a board of education is not entitled to
Eleventh Amendment immunity; that the Board is not entitled to
Eleventh Amendment immunity; and that, consequently, the Board
has not established a clear legal right to a summary judgment
on this ground. I also recognize that this Court does not
review a denial of a summary judgment by a petition for a writ
of mandamus unless an exception applies. See Liberty Nat'l
Life Ins. Co., 825 So. 2d 758, 761-62 (Ala. 2002) ("[B]ecause
an 'adequate remedy' exists by way of an appeal, the denial of
a motion to dismiss or a motion for a summary judgment is not
reviewable by petition for writ of mandamus."). I write
specially to state that my review of the materials submitted
to this Court indicates that the Board is entitled to a
summary judgment on the merits. The Board presented
substantial evidence indicating that there was not a genuine
1061715
33
issue of material fact with regard to A.S.'s § 1983 claim.
A.S. did not establish otherwise. Therefore, if I had been
the trial judge, I would have granted the Board's summary-
judgment motion.
1061715
34
MURDOCK, Justice (concurring in the result).
"There is no area of the law which is more confusing
than qualified immunity, unless it is that of
deliberate indifference."
Judge Robert Propst
Flowers v. Bennett,
123 F. Supp. 2d 595, 601
(N.D. Ala. 2000).
Before conducting research in an effort to understand the
issue presented in the present case, my vote for the most
confusing area of the law likely would have gone to that area
of Alabama state law dealing with "sovereign immunity" (or at
least to the manner in which this Court has sometimes applied
that law). See generally Alabama Dep't of Transp. v. Harbert
Int'l, Inc., [Ms. 1050271, March 7, 2008] ___ So. 2d ___, ___
(Ala. 2008) (Murdock, J., concurring specially) (addressing
so-called "State immunity"); Ex parte Randall, 971 So. 2d 652,
609 (Ala. 2007) (Murdock, J., dissenting) (addressing so-
called "State-agent immunity"). After reading quite a number
of federal cases dealing with Eleventh Amendment immunity,
however, I am now amenable to the suggestion that Judge Propst
has identified more deserving candidates.
1061715
35
The United States Supreme Court has stated that the issue
of qualified immunity turns on two questions: (1) whether the
defendant
was
performing a discretionary function and
(2)
whether
the
defendant's
conduct
violated
clearly
established statutory or constitutional rights. As the Court
held in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982):
"[G]overnment officials performing discretionary functions
generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable
person would have known." The latter question, itself, has
been examined in two parts: (a) "'[t]aken in the light most
favorable to the party asserting the injury, do the facts
alleged show the officer's conduct violated a constitutional
right?'" and, (b) if so, was "'the right ... clearly
established ... in light of the specific context of the
case'"? Scott v. Harris, ___ U.S. ___, ___, 127 S. Ct. 1769,
1774 (2007) (quoting Saucier v. Katz, 533 U.S. 194, 201
(2001)). Despite these holdings, under the approach utilized
by the United States Court of Appeals for the Eleventh Circuit
in Ray v. Foltz, 370 F.3d 1079 (11th Cir. 2004), and accepted
1061715
In Ray v. Foltz, the Court of Appeals for the Eleventh
9
Circuit quoted the "clearly established constitutional right"
36
by the main opinion, the issue whether a state official has
acted with "deliberate indifference," rather than merely
innocently or negligently, must somehow be spliced onto the
immunity analysis.
The main opinion quotes the Harlow v. Fitzgerald standard
as part of a longer passage from this Court's opinion several
years ago in Ex parte Alabama Department of Youth Services,
880 So. 2d at 393, 402-03 (Ala. 2003). ___ So. 2d at ___.
Without any predicate explanation of how, or even whether, the
concept of "deliberate indifference" is properly part of the
qualified-immunity analysis, the main opinion then states
that,
"[i]n Ray v. Foltz, 370 F.3d 1079 (11th Cir. 2004),
the United States Court of Appeals for the Eleventh
Circuit held that, to overcome qualified immunity,
not only must the government official violate a
clearly established statutory or constitutional
right of the plaintiff, but the government official
also must have acted with deliberate indifference to
that right."
___ So. 2d at ___ (emphasis added). In this regard, the
approach reflected in the main opinion seems little or no
different than that in Ray v. Foltz itself. As a result, and
9
1061715
standard from Harlow v. Fitzgerald and concluded that the
constitutional right violated in that case was a clearly
established one. The opinion then moved to the issue of
"deliberate indifference" (which, if not for the manner in
which it is discussed in Ray v. Foltz and some other cases, I
would have assumed was simply a substantive, scienter element
of the underlying constitutional/§ 1983 action), without
explaining how that concept relates to the above-stated
elements of the qualified-immunity defense. Nevertheless, the
manner in which the court organized its opinion does suggest
that the issue of deliberate indifference is to be considered
in the context of a qualified-immunity analysis. 370 F.3d at
1081-85 (Part II).
Ray v. Foltz relied heavily upon the discussion of
deliberate indifference in Taylor v. Ledbetter, 818 F.2d 791
(11th Cir. 1987) (en banc). The discussion in Taylor,
however, does not appear to be anything more than a discussion
of an element of the underlying cause of action. I also note
that in Williams v. Board of Regents of University System of
Georgia, 477 F.3d 1282, 1300 (11th Cir. 2007), a case, like
the present case, involving supervisor liability, the Court
of Appeals for the Eleventh Circuit discusses the deliberate-
indifference standard as a substantive element of the causes
of action under Title IX and § 1983. 477 F.3d at 1295-97
(Part II.B.3). The opinion in Williams makes no reference to
the concept of deliberate indifference in its separate
discussion of qualified immunity. As to that issue, the
opinion focuses solely on whether the defendant was "executing
a discretionary responsibility" and, if so, whether the right
of the plaintiff that was violated was a "'clearly established
statutory or constitutional right[] of which a reasonable
person would have known,'" consistent with the above-discussed
United States Supreme Court cases. 477 F.3d at 1300-02
(Part III.B and III.C) (quoting Courson v. McMillian, 939 F.3d
1479, 1486 (11th Cir. 1991)). Compare Saucier v. Katz, supra.
37
because the arguments of both parties in this case are based
on this approach, I accept this approach for purposes of the
1061715
38
present case. On that basis, I concur in the result reached
by the main opinion as to Nash.
I also concur in the result reached by the main opinion
as to the Madison County Board of Education. | June 27, 2008 |
499be799-8cd9-4ae8-9cc0-e0cd599582c2 | Ex parte Mary Ann Baggett, surviving spouse and dependent of Charles Baggett, deceased. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: General Electric Company v.Charles Baggett) (Morgan Circuit Court: CV-03-764; Civil Appeals : 2050469). Writ Quashed. No Opinion. | N/A | 1070112 | Alabama | Alabama Supreme Court | REL: 07/25/2008
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
____________________
1070112
____________________
Ex parte Mary Ann Baggett, surviving spouse and dependent
of Charles Baggett, deceased
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: General Electric Company
v.
Charles Baggett)
(Morgan Circuit Court, CV-03-764;
Court of Civil Appeals, 2050469)
STUART, Justice.
1070112
2
WRIT QUASHED. NO OPINION.
See, Smith, Bolin, and Parker, JJ., concur.
Murdock, J., concurs specially.
Cobb, C.J., and Lyons and Woodall, JJ., dissent.
1070112
3
MURDOCK, Justice (concurring specially).
I concur in quashing the writ. In so doing, I note my
agreement with most of the analysis in the opinion of the
Court of Civil Appeals but find it necessary to further
explain my understanding of the law as it relates to the issue
of pain resulting from injury to a "scheduled member."
First, I specifically note my agreement with the
conclusion of the Court of Civil Appeals that "any effects of
the injury to [Charles] Baggett's left knee that may have
extended to his right knee would not remove his injury from
the schedule because the 'loss' of two legs is itself a
scheduled injury. See § 25-5-57(a)(3)a.26., Ala. Code 1975."
General Elec. Co. v. Baggett, [Ms. 2050469, May 11, 2007] ___
So. 2d ___, ___ (Ala. Civ. App. 2007). See also Ala. Code
1975, § 25-5-57(a)(3)d. (providing that the loss of use of a
member is equivalent to the loss of that member and that
permanent disability resulting from partial loss of use of a
member is to be compensated on a pro rata basis in relation to
the compensation payable for total loss of use under the
schedule); Stone & Webster Constr., Inc. v. Lanier, 914 So. 2d
869, 876-78 (Ala. Civ. App. 2005) (stating that the effects of
1070112
4
an injury to an employee's right knee upon his left knee did
not remove the injury from the schedule because the loss of
both legs is a scheduled injury and "the ... loss of the use
of a member [is] considered as equivalent to the loss of that
member").
Second, I believe the approach reflected in the Court of
Civil Appeals' opinion -- determining first whether an injury
is to be compensated as an injury to a scheduled member -- is
correct. Only if it can be determined that the injury is not
compensable under the schedule prescribed in § 25-5-57(a)(3)a.
does the court then proceed to consider the degree of
disability to the body as a whole under § 25-5-57(a)(3) or
whether the degree of disability is great enough to be deemed
a "total" disability under § 25-5-57(a)(4). To first decide
whether an injury qualifies an employee for total-disability
benefits under § 25-5-57(a)(4) and, only if it is determined
that it does not, then to proceed to consider application of
the schedule would negate the intended operation of the
schedule, with its specific treatment of certain types of
injuries. It also would effectively unwind this Court's
holding in Ex parte Drummond, 837 So. 2d 831 (Ala. 2002), in
1070112
5
which this Court reversed numerous decisions that had relied
on a variety of factors, including work restrictions and
vocational
disabilities,
to
hold
that
injuries
were
compensable outside the schedule. Ex parte Drummond Co., 837
So. 2d at 834, nn. 6 & 8 and accompanying text.
In the present case, after determining that the injury
was to a scheduled member, the Court of Civil Appeals turned
its attention to the issue of Charles Baggett's pain. Earlier
in its opinion, the court had noted that, during a functional-
capacities evaluation performed in March 2005, Baggett "rated
the ... level of pain in his left knee as a 7" and "rated the
average level of pain in [his left] knee during the previous
month as a 7 on a 10-point scale, with 7 being the lowest
level of pain and 9 the highest level of pain he had
experienced during that period." General Elec. Co., ___ So.
2d at ___. The Court of Civil Appeals also noted, however,
that "Baggett testified that, because of the injuries to his
left leg, he experiences pain when performing any activity
other than 'just sitting around.' Baggett further testified
that he is unable to squat and lift without experiencing
pain." ___ So. 2d at ___.
1070112
6
The legal analysis provided by the Court of Civil Appeals
as to the issue of pain begins with the observation that
Ex parte Drummond Co.
"indicated that debilitating pain isolated to a
injured scheduled member may, in some circumstances,
be a basis for compensating an injury outside of the
schedule. See 837 So. 2d at 836 n. 11. However,
the record does not contain substantial evidence
indicating that Baggett experiences debilitating
pain that, by itself, causes a disability to the
body as a whole."
General Elec. Co., ___ So. 2d at ___. As a preliminary
matter, I do not believe this Court has ever said that the
debilitating pain upon which compensation outside the schedule
can be based must "by itself" be the cause of disability to
the body as a whole, i.e., that the court may not consider the
combined effects of the injury to the scheduled member and the
pain experienced by the employee. That said, I agree with the
essential conclusion of the Court of Civil Appeals -- that the
record in this case does not contain substantial evidence that
Baggett
experiences
debilitating
pain that would make
Baggett's injury compensable beyond the scheduled amount.
The Court of Civil Appeals offers the following analysis
in support of the aforesaid conclusion:
1070112
7
"The
record
does
not
indicate
that
Baggett
experiences more severe pain from his left-leg
injury than would normally be associated with an
injury of this nature, an injury listed in the
schedule. Moreover, we note that our supreme court
in Ex parte Drummond Co. overruled cases that
awarded compensation outside the schedule for 'pain,
swelling, and discoloration.'"
General Elec. Co., ___ So. 2d at ___ (citing Ex parte Drummond
Co., 837 So. 2d at 834-35 & n.5, and referencing cases
overruled by Ex parte Drummond Co.). Given the evidence of
pain experienced by the employee in this case, however, my
vote to quash the writ is based on the lack of a showing that
the employee's pain resulted from the use of the scheduled
member that cannot reasonably be avoided. I believe the
decision of the Court of Civil Appeals in Shoney's, Inc. v.
Rigsby, 971 So. 2d 722 (Ala. Civ App. 2007), correctly states
the applicable law:
"[T]o the extent ... Masterbrand Cabinets[, Inc. v.
Johnson, [Ms. 2030409, June 3, 2005] ___ So. 2d ___
(Ala. Civ. App. 2005) (plurality opinion),] asserts
that Ex parte Drummond Co. does not foreclose the
awarding of compensation outside the schedule 'when
an injury ... to a scheduled member[] entails ... a
debilitating pain ... that impairs the body as a
whole in a manner not contemplated by the schedule,'
it is correct. The Ex parte Drummond Co. Court
itself noted that its opinion did not foreclose such
compensation:
1070112
8
"'This
case
does
not
present
a
situation in which the pain, although
isolated to the scheduled member, causes a
disability to the body as a whole. We
recognize that pain can be totally, or
virtually totally, debilitating, but this
case does not present such a situation;
therefore, we decline to address that
situation here.'
"837 So. 2d at 836 n. 11. The test adopted in
Ex parte Drummond Co. would indeed appear to admit
of such compensation. See Masterbrand Cabinets, ___
So. 2d at ___ n. 3 (Noting '[b]y way of example,
[that] a worker could experience ongoing pain from
an injured member that is so continuous and severe,
even when the worker refrains from the use of that
member, as to materially adversely affect the
worker's ability to use his mind or to concentrate
to the degree necessary to accurately or safely
perform various tasks. In a real sense, the effect
of such pain could properly be considered as
"extend[ing] to other parts of the body and
interfer[ing] with their efficiency."'). Similarly,
it is conceivable that a worker's pain could be of
such frequency and severity as to adversely affect
his or her ability to sleep, thereby resulting in a
material deterioration of his mental or physical
health, or both."
971 So. 2d at 725 n. 2 (emphasis added). The opinion of the
Court of Civil Appeals continued:
"In Masterbrand Cabinets, Inc. v. Johnson, [Ms.
2030409, June 3, 2005] ___ So. 2d ___ (Ala. Civ.
App. 2005), this court applied Ex parte Drummond Co.
to affirm a trial court's judgment finding an
employee to be permanently and totally disabled as
a result of 'swelling and constant, throbbing pain
in her hands and arms that often reached a level of
1070112
9
8 on a scale of 10.' Masterbrand Cabinets, ___ So.
2d at ___. This court explained:
"'[T]he Drummond Court did not have before
it a case that required it to address an
abnormal or unusual pain that, although
isolated to a scheduled member, caused a
more general, debilitating effect on the
body as a whole. The ongoing pain
experienced by the worker in Ex parte
Drummond [Co.] was not unusually severe;
nor was it constant. Furthermore, it was
pain that largely was precipitated by the
worker's use, or overuse, of the scheduled
member. In such a case, the worker, by
refraining from the use of that member, may
largely avoid the pain in question with the
result being that the worker is in no worse
a position due to his inability to use the
affected member than if the member had been
completely lost.
"'....
"'Clearly,
pain
isolated
to
a
scheduled member might be sufficiently
constant and severe, even when the worker
refrains from using the scheduled member,
that it would cause a debilitating effect
to the body as a whole that is greater than
the disability resulting from the loss of,
or the loss of use of, that scheduled
member as contemplated by § 25-5-57(a)(3).
The Legislature undoubtedly assumed that
there could be ongoing pain associated with
the loss of or a permanent injury to a
scheduled member. The question becomes
whether the pain associated with a lost
member, or with a permanently injured
member even when the worker avoids the use
of that member to the extent he or she
reasonably can do so, ... extends to other
1070112
As noted in Shoney's, Inc., the last-quoted sentence was
1
modified in that case with the use of an ellipsis and
bracketed phrases to avoid the suggestion of a test other than
that articulated in Ex parte Drummond Co. Shoney's, Inc., 971
So. 2d at 726 n. 3.
10
parts of the body and interferes with their
efficiency
or[,
in
other
words,]
is
sufficiently abnormal in its frequency or
continuity and in its severity that it has
a debilitating effect on the body as a
whole [greater than that contemplated by
§ 25-5-57(a)(3)].'[1]
"Masterbrand Cabinets, ___ So. 2d at ___ (footnotes
omitted). See also Stone & Webster Constr., Inc. v.
Lanier, 914 So. 2d 869, 877 (Ala. Civ. App. 2005)
(discussing Masterbrand Cabinets, Inc. v. Ruggs, 891
So. 2d 869 (Ala. Civ. App. 2004)).
"In contrast to the record in Masterbrand
Cabinets, Inc. v. Johnson, the record in the present
case does not reveal substantial evidence indicating
that pain from Rigsby's injuries 'extends to other
parts of [her] body and interferes with their
efficiency' so as to warrant a recovery of benefits
outside the schedule. The trial court found that
Rigsby used her prescription pain medication two
times per week on average. Moreover, as in
Masterbrand Cabinets, Inc. v. Johnson, the evidence
indicates that Rigsby's pain is 'largely ...
precipitated by [her] use, or overuse, of the
scheduled member,' ___ So. 2d at ___, and there is
not substantial evidence from which the trial court
could find to the contrary. 'In such a case, the
worker, by refraining from the use of that member,
may largely avoid the pain in question with the
result being that the worker is in no worse a
position due to his inability to use the affected
member than if the member had been completely lost.'
1070112
I also note that the cases involving pain that were
2
listed in note 5 and overruled in the accompanying text of Ex
parte Drummond Co. "all involved pain associated with the use
or overuse of a scheduled member that apparently could have
been avoided by the worker's nonuse of the member," and that
Ex parte Drummond Co. overruled "those cases only 'insofar as
they expanded the Bell [v. Driskill, 282 Ala. 610, 213 So. 2d
806 (1968),] test.'" Masterbrand Cabinets, Inc. v. Johnson,
[Ms. 2030409, June 3, 2005] ___ So. 2d ___, ___ (Ala. Civ.
App. 2005) (citing Ex parte Drummond Co., 837 So. 2d at 834-
35).
11
Masterbrand Cabinets, Inc. v. Johnson, ___ So. 2d at
___ (footnote omitted)."2
971 So. 2d at 726-27 (footnote omitted and emphasis added).
Given the fact that § 25-5-57(a)(3)d. equates the loss of
use of a scheduled member with the loss of that member, the
showing that must be made is that the employee suffers pain
of sufficient frequency or continuity, and of sufficient
severity, that it interferes with the efficiency of other
parts of the body and has a debilitating effect greater than
that contemplated by the schedule "even when the [employee]
avoids the use of [the scheduled] member to the extent he or
she reasonably can do so" physically. Shoney's, Inc., 971 So.
2d at 727. Because the petition before us does not attempt to
make such a showing, and because the record before us does not
appear to support such a showing, I see no probability of
1070112
12
merit in the petition. See Rule 39(f), Ala. R. App. P. I
therefore concur in quashing the writ. | July 25, 2008 |
0f4fdfc0-dc2d-4d7d-8a7a-2fd545bd1ce8 | The Pittsburg & Midway Coal Mining Company v. Tuscaloosa County, Alabama and The Tuscaloosa County Special Tax Board | N/A | 1060496 | Alabama | Alabama Supreme Court | REL: 05/16/2008
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, 2007-2008
____________________
1060496
____________________
The Pittsburg & Midway Coal Mining Company
v.
Tuscaloosa County, Alabama, and the Tuscaloosa County
Special Tax Board
Appeal from Tuscaloosa Circuit Court
(CV-06-816)
SMITH, Justice.
The Pittsburg & Midway Coal Mining Company ("the
Company") appeals from a judgment of the Tuscaloosa Circuit
Court dismissing the Company's action against the Tuscaloosa
1060496
This Court previously denied a petition for a writ of
1
mandamus filed by the Tax Board asking this Court to intervene
in litigation in Fayette County between the Tax Board, the
Company, and the Fayette County Commission. See Ex parte
Tuscaloosa County Special Tax Bd., 963 So. 2d 610 (Ala. 2007).
In their materials to this Court in the present case, the
parties refer to that litigation as ongoing.
2
County Special Tax Board ("the Tax Board") and Tuscaloosa
County. We reverse and remand.
Facts and Procedural History
This appeal stems from an attempt to determine which of
two
counties--Fayette
County
or
Tuscaloosa
County--is
entitled
to the sales or use taxes on some of the equipment, supplies,
and mine fixtures the Company used in its mining operations in
those counties from 1999 to 2005. The Company alleges that,
1
in what it contends was good faith and based on a reasonable
interpretation of the law and on previous audits and advice by
the Alabama Department of Revenue, it paid the taxes for that
time period to Fayette County. The Tax Board claims, however,
that a large portion of those taxes should have been paid to
it instead.
On July 11, 2005, the Tax Board issued a "preliminary
assessment" of the taxes it claimed that the Company owed for
the period June 1, 1999, through April 30, 2005 ("the audit
1060496
3
period"). The preliminary assessment sought taxes, interest,
and penalties for the audit period. The preliminary
assessment stated:
"[I]f you believe these additional amounts are not
due to the [Tax Board], you have the right to
contest
this
preliminary
tax
assessment
to
Tuscaloosa County's Administrative
Appeals
Committee
discussed in the Taxpayer's [sic] Bill of Rights
(copy enclosed).
"Please take notice of the fact that you have
Thirty (30) DAYS after receipt of this letter within
which to file your formal written appeal with the
Tuscaloosa County Special Tax Board's Manager.
Please also be advised that if a formal protest is
not filed within this deadline, the unpaid balance
of these taxes, penalties, and interest will become
a final assessment against your business. Once the
assessment becomes a final assessment you have
Thirty (30) days to either file an appeal with the
Tax Boards' [sic] Appeals Officer or appeal to
Circuit Court. After thirty days has expired from
the date of the Final Assessment, the assessment
will become final and entered as a judgment.
"After this deadline, if no appeal has been
timely
filed
by
you
or
your
representative,
enforcement and other collection procedures will
then become applicable in this matter for any unpaid
amounts."
(Boldface type in original.)
A brochure entitled "Taxpayers' Bill of Rights" was
included
with
the
preliminary
assessment.
The
name
"Tuscaloosa County Special Tax Board, Tuscaloosa, Alabama"
1060496
Although the Alabama Department of Revenue is not listed
2
as an author of the brochure or otherwise, the brochure the
Tax Board provided to the Company with the preliminary
assessment
nevertheless
references
"the
Department"
throughout. The Company points out that the language of the
Tax Board's brochure is virtually identical to the language in
a brochure published by the Alabama Department of Revenue,
entitled
"Alabama
Taxpayers'
Bill
of
Rights,"
which
summarizes
the appeal procedures set forth in the Alabama Taxpayers' Bill
of Rights, §§ 40-2A-1 to -18, Ala. Code 1975.
4
appears at the top of the cover page of the brochure. After
describing the audit procedure, the brochure states:
"After your audit, we will take one of the
following three actions:
"....
"2. issue a 'preliminary assessment' which will
state any additional tax, penalty, and interest we
believe you owe ....
"If you do not agree with the Department's[2]
decision in your case, you may appeal this decision
by filing a written petition requesting a review
hearing on your case. The petition for review must
be filed within thirty (30) days of the issuance
date of the preliminary assessment. The petition
may be through a written letter addressed to the
Department outlining the amount you are protesting
and the reason.
"The Department will review your petition and
schedule a conference if requested or otherwise
necessary. During this conference you will have the
opportunity to discuss your case with designated
officers from the division whose actions you are
contesting. This conference will allow both you and
the Department to present each side of the issue and
1060496
5
to
review
any
additional
information
being
presented.
"Based on the outcome of this conference, the
Department will either cancel, change, or affirm its
previous action. If you do not timely file your
petition for review or the Department determines
from the conference that the preliminary assessment
is due to be upheld in whole or in part, the
Department will enter a final assessment.
"If a final assessment is entered, you will be
notified in writing and advised that you may appeal
to circuit court or the Department's appeals
representative."
On August 10, 2005, the Company filed a petition with the
Tax Board seeking a review of the preliminary assessment; the
petition asked for hearing before the Tax Board. Because the
Company contended that it had already paid taxes to Fayette
County on most of the items that were the subject of the Tax
Board's preliminary assessment, the Company also filed a
petition on August 18, 2005, with Fayette County under § 40-
23-2.1, Ala. Code 1975, which the parties refer to as the
"anti-whipsaw" statute. The Fayette County petition sought a
refund for the taxes the Company had paid during the audit
period on the items included in the Tax Board's preliminary
assessment.
1060496
6
The Tax Board revised its preliminary assessment on
August 30, 2005; the revised preliminary assessment claimed an
increased amount of taxes, interest, and penalties. According
to the complaint, representatives of the Company informally
met with representatives of the Tax Board on September 9,
2005, at the law offices of the Tax Board's then counsel. On
September 29, 2005, the Company filed a petition for a review
of the revised preliminary assessment.
According to the complaint, the Company made several
requests for a hearing before the Tax Board, but the Tax Board
did not grant those requests. The Tax Board issued a "final
assessment" on March 28, 2006, and the complaint alleges that
the Tax Board did so without prior notice or explanation to
the Company.
The August 30, 2005, assessment sought a total of
$1,200,412.27 in taxes, penalties, and interest, but the March
28, 2006, assessment sought $521,576.69 in taxes, $169,924.71
in interest, and $57,695.71 in penalties, for a total of
$749,197.11.
The March 28, 2006, final assessment stated:
"The purpose of this report is to give your
business the opportunity to pay these additional
1060496
7
local taxes. The taxpayer has Thirty (30) days to
either file an appeal with the Tax Boards' [sic]
Appeals Officer or appeal to Circuit Court. After
thirty days has expired from the date of this Final
Assessment, [t]he assessment will become final and
entered as a judgment.
"After this deadline, if no appeal has been
timely
filed
by
you
or
your
representative,
enforcement and other collection procedures will
then become applicable in this matter for any unpaid
amounts."
(Boldface type in original.)
On April 27, 2006, the Company delivered a five-page
"notice of appeal of final assessment" to the Tax Board, along
with attached exhibits. The Company addressed the "notice of
appeal" to the "appeals officer" of the Tax Board.
On May 31, 2006, the Tax Board, contrary to its earlier
position, notified the Company that it did not have an
administrative-appeal process. The Tax Board's May 31 letter
stated:
"Please take note that there is currently no
Appeals
Officer
employed
or
utilized
by
the
Tuscaloosa County Special Tax Board. Moreover,
there is no mechanism for the hearing of any
administrative appeals by the board or such an
officer on account of the special provisions of the
local act creating and governing the Board. See Act
56, 1953 Ala. Acts, Vol. I, pgs. 76-86, as amended
by Act 94-554, 1994 Ala. Acts, Vol. 2, pgs. 1010-21.
1060496
8
"These Acts provide that the sole avenue for
appealing an assessment lies with the Tuscaloosa
County Circuit Court. (See Section 10 of the Act,
as amended.) Please direct any appeals you wish to
file to that court. No further action will be taken
on your filing with the Board."
On June 30, 2006, the Company filed a complaint in the
Tuscaloosa Circuit Court. The complaint sought a judgment
declaring that the Tax Board, in issuing the final assessment
and in "reinterpreting" its appeal procedures, violated
various
Alabama
statutes
as
well
as
the
Company's
constitutional due-process rights. In the event that the
court held that the Tax Board's actions were constitutional,
the complaint also gave notice of appeal from the Tax Board's
final assessment.
The Tax Board filed a motion to dismiss. The Tax Board
argued that the local act that created the Tax Board provides
an exclusive appeal process, and that process, the Tax Board
contended, required the Company to file an appeal in the
Tuscaloosa Circuit Court within 30 days of the March 28, 2006,
final assessment. Because the Company had not filed an appeal
within that time, the Tax Board argued that the action filed
June 30, 2006, was an untimely appeal. The Company filed a
brief in opposition to the Tax Board's motion.
1060496
9
Following a hearing, the trial court agreed with the Tax
Board and dismissed the action. The Company timely appealed
to this Court.
Standard of Review
"Appellate review of a ruling on a question of law is de
novo." Ex parte Forrester, 914 So. 2d 855, 858 (Ala. 2005).
"A de novo review is a review without any assumption of
correctness." Kenworth of Dothan, Inc. v. Bruner-Wells
Trucking, Inc., 745 So. 2d 271, 273 (Ala. 1999).
The trial court dismissed this case on a motion to
dismiss grounded on Rule 12(b)(6), Ala. R. Civ. P.
"'"The standard of review of the grant of a
motion to dismiss ... was set out in Nance v.
Matthews, 622 So. 2d 297, 299 (Ala. 1993):
"'"'On appeal, a dismissal is not
entitled to a presumption of correctness.
The appropriate standard of review ... 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 [him] to
relief. In making this determination, this
Court
does
not
consider
whether
the
plaintiff will ultimately prevail, but only
whether [he] may possibly prevail. We note
that a ... dismissal is proper only when it
appears beyond doubt that the plaintiff can
prove no set of facts in support of the
1060496
10
claim that would entitle the plaintiff to
relief.'"
"'Jacks v. Madison County, 741 So. 2d 429, 430 (Ala.
Civ. App. 1999) (citations omitted). In addition,
"[m]otions to dismiss are rarely appropriate in
declaratory judgment proceedings. Such a motion
does,
however,
serve
one
purpose,
that
of
determining whether the [complaint] states the
substance of a bonafide justiciable controversy
which should be settled." Wallace v. Burleson, 361
So. 2d 554, 555 (Ala. 1978) (citation omitted).'"
Waite v. Waite, 959 So. 2d 610, 614 (Ala. 2006) (quoting Helms
v. Barbour County, 914 So. 2d 825, 828-29 (Ala. 2005)).
Discussion
The legislature created the Tax Board in 1953. See Act
No. 56, Ala. Acts 1953, as amended by Act No. 94-554, Ala.
Acts 1994, and Act No. 96-554, Ala. Acts 1996 ("the local
act"). The Tax Board is a five-member board; Tuscaloosa
County, the City of Tuscaloosa, the Tuscaloosa County Board of
Education, the City of Tuscaloosa Board of Education, and the
Druid City Hospital Board each elect one member of that board.
Local act §§ 1, 9.
Section 10 of the local act contains a specific
procedure for an appeal from a final assessment issued by the
Tax Board. As amended, § 10 provides:
1060496
Section 1 of the local act defines "county" as
3
"Tuscaloosa County in the state."
11
"Section 10. Appeals
from
Assessments.
Whenever
any taxpayer who has duly appeared and protested a
final
assessment
made
by
the
tax
board
is
dissatisfied with the assessment finally made, he
may appeal from said final assessment to the Circuit
Court of the county,
sitting in equity, by filing
[3]
notices of appeals with the secretary of the tax
board and with the register of said court within
thirty (30) days from the date of said final
assessment, and in addition thereto by giving bond
conditioned to pay all costs, such bond to be filed
with and approved by the register of said court.
All provisions of Chapter 2A of Title 40 of the Code
of Alabama 1975, as amended from time to time,
pertaining to payment of an assessment unless a
supersedeas bond shall be filed and approved, the
burden of proof, and the procedure to be followed in
appeals from the judgment of the said court, shall
be applicable to appeals from final assessments made
hereunder, and the tax board shall have with respect
to such appeals all the rights conferred on and the
functions assigned to the Department of Revenue by
said Chapter 2A."
In dismissing the Company's action, the trial court
concluded that "the [Company's] exclusive remedy to challenge
the final assessment entered against it by the Tuscaloosa
County Special Tax Board lies under the Local Act creating and
governing the [Tax] Board." The trial court construed § 10 as
permitting only one procedure by which the Company could
challenge the March 28, 2006, assessment: the filing of a
notice of appeal in the Tuscaloosa Circuit Court within 30
1060496
12
days of that assessment. Because the Company did not file a
notice of appeal within that time, the trial court held that
the notice of appeal the Company did file was untimely.
The trial court also dismissed the Company's declaratory-
judgment action, which was based on various Alabama statutes
as well as constitutional due-process protections. The trial
court held that that action was "an impermissible substitute
for an appeal" from the March 28, 2006, final assessment.
The Company, however, argues that after the Tax Board
issued the final assessment on March 28, 2006, the Company was
entitled to an administrative appeal before the Tax Board.
The Company further contends that the 30-day period for filing
a notice of appeal under § 10 of the local act did not begin
to run until such an administrative appeal had been exhausted.
The Company offers two arguments in support of that position.
First, the Company argues that the plain language of § 10
of the local act requires the Tax Board to provide some form
of an administrative hearing following issuance of a final
assessment. Noting that § 10 authorizes an appeal to the
Tuscaloosa Circuit Court "[w]henever any taxpayer who has duly
appeared and protested a final assessment made by the tax
1060496
13
board is dissatisfied with assessment finally made" (emphasis
added), the Company argues that the final assessment does not
become "finally made" until the Tax Board (1) holds a hearing
after issuance of the final assessment and (2) renders a final
decision after that hearing. We disagree.
Section 10 of the local act states that the notice of
appeal must be filed "within thirty (30) days from the date of
said final assessment." The Company does not dispute that the
March 28, 2006, assessment was a "final assessment." Thus,
according to § 10 of the local act, the Company was required
to do the following within 30 days of March 28, 2006: (1)
"duly appear[] and protest[] [the] final assessment" before
the Tax Board and (2) file a notice of appeal in the
Tuscaloosa Circuit Court.
However, the Company also argues that the Local Tax
Simplification Act of 1998, Act No. 98-192, Ala. Acts 1998
("the LTSA"), superseded the local act and required the Tax
Board to offer an administrative-appeal procedure like that
set forth in the Alabama Taxpayers' Bill of Rights, §§ 40-2A-1
to -18, Ala. Code 1975 ("the TBOR"). We agree.
1060496
14
The purpose of the TBOR is stated in § 40-2A-2(1), Ala.
Code 1975, entitled "Legislative Intent":
"a. The legislative intent of this chapter is to
provide equitable and uniform procedures for the
operation of the department and for all taxpayers
when dealing with the department. This chapter is
intended as a minimum procedural code and the
department may grant or adopt additional procedures
not inconsistent with this chapter. This chapter
shall be liberally construed to allow substantial
justice.
"b. The provisions of this chapter shall be
complementary
and
in
addition
to
all
other
provisions of law. In the event of any conflict
between the provisions of this chapter and those of
any other specific statutory provisions contained in
other chapters of this title, or of any other title,
it is hereby declared to be the legislative intent
that, to the extent such other specific provisions
are
inconsistent
with
or
different
from
the
provisions of this chapter, the provisions of this
chapter shall prevail."
In General Motors Acceptance Corp. v. City of Red Bay,
894 So. 2d 650 (Ala. 2004), this Court summarized some of the
procedures outlined in the TBOR:
"The TBOR prescribes uniform procedures that
must be followed in assessing and collecting taxes.
§ 40-2A-1 and -2. Pursuant to the TBOR, the State
Department of Revenue ('the Department') is required
to provide a taxpayer with notice of any planned
audit of the taxpayer's books and records; with a
statement of the taxpayer's procedural rights,
including the right to an administrative review of
a preliminary assessment; and with a written
description
of
the
grounds
for
any
claimed
1060496
15
underpayment or nonpayment of a tax. § 40-2A-4. ...
If
the
parties
are
unable
to
resolve
their
differences and the Department determines that the
assessment
is
valid,
it
must
enter
a
final
assessment. The taxpayer may then appeal the
assessment to the administrative law division of the
Department (or to a similar administrative agency in
the event the dispute involves local taxes levied by
a municipality or county not administered by the
Department) or to the circuit court in the county
where the taxpayer resides. § 40-2A-7."
894 So. 2d at 653 (emphasis added).
In particular, § 40-2A-7(b)(5), Ala. Code 1975, entitled
"Procedure for Appeal from Final Assessment," provides, in
relevant part:
"a. A taxpayer may appeal from any final
assessment entered by the department by filing a
notice of appeal with the Administrative Law
Division within 30 days from the date of entry of
the final assessment, and the appeal, if timely
filed, shall proceed as herein provided for appeals
to the Administrative Law Division.
"b.1. In lieu of the appeal under paragraph a.,
at the option of the taxpayer, the taxpayer may
appeal from any final assessment to the Circuit
Court of Montgomery County, Alabama, or to the
circuit court of the county in which the
taxpayer resides or has a principal place of
business in Alabama, as appropriate, by filing
notice of appeal within 30 days from the date
of entry of the final assessment with both the
secretary of the department and the clerk of
the circuit court in which the appeal is
filed."
1060496
16
In the event a taxpayer files an administrative appeal, § 40-
2A-9(g) of the TBOR gives the taxpayer 30 days after the final
order is issued in the administrative appeal in which to file
a notice of appeal to the appropriate circuit court. Thus,
the TBOR--unlike § 10 of the local act--offers the taxpayer
the option of filing an administrative appeal and obtaining an
administrative ruling before the 30-day period for filing a
notice of appeal in the appropriate circuit court begins to
run.
By its terms the TBOR applies only to the Department of
Revenue and not to a local taxing authority like the Tax
Board. Red Bay, 894 So. 2d at 653. Even so, it is undisputed
in this case that the Tax Board represented to the Company
more than once that the Tax Board had an administrative-appeal
process essentially identical to the appeal process the TBOR
requires in § 40-2A-7(b)(5) and § 40-2A-9(g). Moreover, the
Company alleges that, before the Tax Board's May 31, 2006,
letter informing the Company that it had "no mechanism for the
hearing of any administrative appeals," the Tax Board had in
fact offered an administrative-appeal process since at least
2001.
1060496
Those admissions, which the Tax Board made in litigation
4
in Fayette County between the Fayette County Commission, the
Company, and the Tax Board, see supra note 1, are (1) that the
Tax Board represented to the Company that it had an "appeals
officer" or "appeals representative" to which the Company
could appeal from the final assessment; (2) that other
taxpayers had been given the option to appeal a final
assessment
to
such
an
administrative
appeals
officer;
(3)
that
other taxpayers had appealed final assessments to the Tax
Board's "appeals officer"; and (4) that an individual named
Stanley McCracken had served as the Tax Board's "appeals
officer" for at least one such administrative appeal.
17
In its materials to this Court, the Tax Board states:
"[The Company] makes much ado about the Tax Board's
admissions in the proceedings in Fayette County
[between the Tax Board, the Company, and the Fayette
County Commission ], as if to give the impression
4
that
heretofore
the
Tax
Board
has
not
been
completely truthful about the facts of this case.
However, the Tax Board has never concealed the fact
of the contents of its brochure, nor has the Tax
Board ever represented to [the Company] or to any
court that it had never had an administrative
process in the past. The Tax Board's position on
this fact is quite simple: the Board discovered that
it had failed to follow the law as mandated by the
Local Act, and it corrected that error."
The Company argues, however, that the Tax Board's prior
practice of offering an administrative-appeal process was
correct because, the Company contends, the LTSA effectively
amended the procedure in § 10 of the local act to conform to
the appeal procedures outlined in the TBOR.
Section 2 of the LTSA provides:
1060496
18
"The Legislature hereby finds and declares that the
enactment by this state of a simplified system of
local sales, use, rental, and lodgings taxes which
may
be
levied
by
or
for
the
benefit
of
municipalities and counties in Alabama effectuates
desirable public policy by promoting understanding
of and compliance with applicable local tax laws.
The Legislature does therefore declare that the
provisions of this act are intended to accomplish
these purposes."
(Emphasis added.)
The LTSA amended § 11-3-11.2, Ala. Code 1975, to provide,
in part:
"(b) Any county commission which elects to
administer
and
collect,
or
contract
for
the
collection of, any local sales and use taxes or
other local taxes, shall have the same rights,
remedies, power and authority, including the right
to adopt and implement the same procedures, as would
be available to the Department of Revenue if the tax
or taxes were being administered, enforced, and
collected by the Department of Revenue."
In the same legislative session during which it passed the
LTSA, the legislature also passed the "Local Tax Procedures
Act of 1998," Act No. 98-191, Ala. Acts 1998 ("the LTPA").
Section 5 of the LTPA added § 40-2A-13(a), Ala. Code 1975, to
the TBOR, which provides:
"The Department of Revenue, a governing body of a
self-administered county or municipality, or an
agent of such a municipality or county may not
conduct an examination of a taxpayer's books and
records for compliance with applicable sales, use,
1060496
19
rental, or lodgings tax laws except in accordance
with this section and with the Alabama Taxpayers'
Bill of Rights and Uniform Revenue Procedures Act."
This Court in Red Bay held that the LTSA made the
administrative-appeal
procedures
in
the
TBOR
"equally
applicable to tax assessments and tax-collection procedures by
local taxing authorities such as the City [of Red Bay] and
[Franklin] County." 894 So. 2d at 653. This Court reached
that conclusion in part by reading § 11-3-11.2 and § 40-2A-
13(a) together. The Court also explained:
"The Alabama Administrative Code (Department of
Revenue), implementing the TBOR, sets forth the
following regulations:
"'This chapter sets forth the rules to
be used by the Alabama Department of
Revenue in the administration of Chapter 2A
of Title 40, Code of Ala. 1975, passed
during
the
1992
regular
legislative
session. Chapter 2A of Title 40, Code of
Ala. 1975, titled the "Alabama Taxpayers'
Bill
of
Rights
and
Uniform
Revenue
Procedures Act," was enacted to provide
equitable and uniform procedures for the
operation of the Department and for all
taxpayers when dealing with the Department.
These rules are promulgated to implement
the [TBOR] and clarify the rights of the
Alabama
taxpayer
and
the
role
and
responsibilities of the Department in
administering the state's tax laws.'
"Ala. Admin. Code (Department of Revenue) r. 810-14-
1-.01 (emphasis added).
1060496
20
"The City [of Red Bay] and [Franklin] County ask
us to restrict the Department's embrace of the TBOR
as
applicable
to counties and municipalities,
arguing that if the Legislature had intended for the
TBOR to apply to all counties and municipalities, it
could have so specified. In their brief to this
Court, the City and the County contend that 'only
the "direct pay permit and drive-out certificate
procedures, statutes of limitations, penalties,
fines, punishments, and deductions" of § 40-2A-7 of
the TBOR are applicable to municipalities under §
11-51-201 as a result of the [LTSA]. Because the
administrative remedies contained within § 40-2A-7
are not specifically listed, they do not apply.'
They further contend that § 11-3-11.2 'merely
clarifies that "[a]ny rules and regulations adopted
or utilized by the county or its designee shall be
consistent with the rules and regulations adopted
through the provisions of the Alabama Administrative
Procedures Act [§ 41-22-1 et seq., Ala. Code 1975]."
Nothing in this section requires that a county must
undergo administrative remedies prior to filing
suit.'
"We do not read the language of the TBOR, the
LTSA, and the regulations adopted by the Department
so narrowly. The statutes amended by the LTSA
clearly
adopt
the
administrative
rules
and
regulations
promulgated
by
the
Department
to
implement the TBOR, thus making municipalities and
counties
subject
to
the
statutory
mandates
applicable to both taxing authorities and taxpayers
alike when enforcing the State's tax laws.
"GMAC also points to § 40-2A-13(a) of the TBOR
....
"'....'
"They contend that § 11-3-11.2, § 11-51-201, and §
40-2A-13(a) combine to obligate municipalities and
1060496
21
counties to follow the Department's tax-collection
procedures and to comply with the TBOR in the same
manner as the Department must.
"In response to this contention, the City and
the County argue that § 40-2A-13(a) of the TBOR
deals exclusively with examining a taxpayer's books
and records and does not make the provisions of the
TBOR applicable to cities and counties. The fact
that
the
Legislature
specifically
listed
municipalities and counties in § 40-2A-13(a), they
argue, indicates that the Legislature intended that
only certain sections of the TBOR apply to local
taxing entities. Again, we find this argument a
narrow and strained interpretation of the TBOR and
the LTSA. It ignores the fact that the LTSA was
passed at the very same session of the Legislature
as, and became effective on the same day as, the act
codified as § 40-2A-13. We decline to read one
section of the statutory scheme in isolation. When
we consider both the TBOR and the LTSA in their
entirety, we can only conclude that the TBOR applies
not only to the Department and taxpayers, but also
to municipalities and counties."
894 So. 2d at 654-55.
The Tax Board contends that Red Bay is distinguishable
because, the Tax Board argues, the Tax Board is not the "agent
or alter ego of" and "is not controlled by [Tuscaloosa]
County." The Tax Board contends that its alleged status as a
non-agent is important because § 11-3-11.2 applies to a
"county commission" and 40-2A-13(a) applies to "a governing
1060496
Section 40-2A-3(21) defines a "self-administered county
5
or municipality" as:
"A county or municipality that administers its own
sales and use taxes or other local municipal or
county taxes levied or authorized to be levied by a
general or local act, or contracts out all or part
of that function to a private auditing or collecting
firm. The term does not include any of the
following:
"a. A county or municipality that allows the
department to administer a sales, use, rental, or
lodgings tax which is levied by or on behalf of that
county or municipality.
"b. A municipality or county that levies a gross
receipts tax in the nature of a sales tax, as
defined in subdivision (8). A county or municipality
that both self-administers a sales, use, rental, or
lodgings tax and allows the department to administer
a sales, use, rental, or lodgings tax that is levied
by or on behalf of the county or municipality is
only a self-administered county or municipality with
respect to those sales, use, rental, or lodgings
taxes that the county or municipality administers
itself or for those taxes that it contracts for the
collection."
22
body of a self-administered county" or its "agent." However,
5
§ 2 of the LTSA states that it is intended to simplify the
system of "local sales, use, rental, and lodgings taxes which
may be levied by or for the benefit of municipalities and
counties in Alabama." (Emphasis added.) Under the local act,
it is undisputed that the Tax Board collects taxes for the
1060496
23
benefit of Tuscaloosa County. See, e.g., Act No. 94-554, § 1,
amending § 11(a) of Act No. 56 to provide:
"After deduction of [certain] expenses, the tax
board shall distribute the remaining proceeds from
the said taxes as follows:
"(a) One hundred per cent (100%) of the proceeds
held or collected pursuant to Sections 3A [levying
a special sales tax] and 4A [levying a special use
tax] of this Act shall be paid to the governing body
of Tuscaloosa County for general county purposes."
(Emphasis added.) Assuming, without deciding, that the Tax
Board is not the agent of Tuscaloosa County, we are not
persuaded that it is outside the reach of the LTSA.
The Tax Board also argues that Red Bay is distinguishable
because "local laws pertaining to the City [of Red Bay] and
[Fayette] County ... indicate that they are obligated to
comply with the same statutory provisions as those that
regulate the Department, including the TBOR." 894 So. 2d at
655. In the present case, however, the Tax Board points to
the following emphasized language in § 4(b) of the local act:
"All provisions and procedures with respect to the
filing of returns, collection and payment of taxes,
keeping of records, making of reports, determination
of
the
amount
of
the
tax
due,
penalties,
assessments, notices, examinations of taxpayers and
their books provided in the state use tax statutes
with respect to the tax levied in those statutes
shall be applicable to the tax levied in this
1060496
24
section
excepting, however, the procedure for
appeals from assessments, and such appeals shall be
made as hereafter set forth; provided, however, that
any procedure or provision involving the State
Department of Revenue which is incorporated herein
by reference to the use tax statutes shall be deemed
to apply, with respect to the tax levied in this
section, to the tax board."
We do not agree with the Tax Board that Red Bay is
distinguishable on that basis. This Court in Red Bay cited
the language of the local acts merely as additional authority
in support of the Court's conclusion that the effect of the
LTSA was to apply the TBOR procedures to local taxing
authorities. See Red Bay, 894 So. 2d at 655 ("When we
consider both the TBOR and the LTSA in their entirety, we can
only conclude that the TBOR applies not only to the Department
and taxpayers, but also to municipalities and counties."
(emphasis added)).
The Tax Board also notes that the 1994 and 1996
amendments to the local act, which occurred after the passage
of the TBOR (but before the passage of the LTSA), did not
change the language the Tax Board quotes from § 4(b) of the
local act. But that observation does not advance the Tax
Board's argument, because the LTSA was enacted in 1998, after
the 1994 and 1996 amendments to the local act.
1060496
25
As noted, the LTSA, as construed in Red Bay, "made the
TBOR equally applicable to tax assessments and tax-collection
procedures by local taxing authorities such as the City [of
Red Bay] and [Franklin] County." 894 So. 2d at 653. The
specific TBOR procedure at issue in the present case is the
statutory right of the taxpayer, as stated in § 40-2A-7(b)(5)
and § 40-2A-9(g) of the TBOR, to pursue an administrative
appeal before the time begins to run for the taxpayer to file
a notice of appeal in an appropriate circuit court. That
statutory procedure, as noted, is in direct conflict with that
part of the procedure outlined in § 10 of the local act, which
does not guarantee the taxpayer the right to obtain a ruling
in an administrative appeal before the time begins to run for
filing a notice of appeal to the appropriate circuit court.
Section 11 of the LTSA provides:
"Subject to the limitations and exceptions provided
in Section 11-3-11.2, Code of Alabama 1975, as
amended by this act, any specific provisions of a
local or general law in direct conflict with a
specific provision of this act is hereby repealed.
The repeal of such portion, however, shall not
affect the remaining provisions of the local or
general law not in direct conflict with a specific
provision of this act."
Notably, the LTSA specifically provides that certain
1060496
26
types of local acts were not amended or repealed by the LTSA.
See § 11-3-11.2(c), Ala. Code 1975 (extending the operation of
local acts that authorize a county commission only to contract
with a designee for the enforcement of any tax enacted by the
county); § 11-3-11.2(d) (pertaining to local acts that
establish or limit the amount a county may retain for costs of
collection or may pay to a designee for collection). The
implication of these provisions, especially when considered
together with the purposes stated in § 2 of the LTSA and the
general repealer clause in § 11 of the LTSA, is that the
legislature intended that those local acts affecting the
various counties be amended or repealed unless excepted by the
LTSA.
A general act may amend or repeal a local act by express
words or by necessary implication. Vaughan v. Moore, 379 So.
2d 1240, 1241 (Ala. 1980).
"Whether the enactment of a general law repeals
a preexisting local law is, of course, dependent
upon ascertaining the legislature's intent from the
language used. Champion v. McLean, 266 Ala. 103, 95
So. 2d 82 (1957). Certain principles applied in
earlier cases, e.g. Connor v. State, 275 Ala. 230,
153 So. 2d 787 (1963), and expressed in Sutherland,
Statutes and Statutory Construction (Sands 4th ed.
1985) § 23.15 at 245, have been helpful in resolving
such an issue:
1060496
27
"'The enactment of a general law broad
enough in its scope and application to
cover the field of operation of a special
or local statute will generally not repeal
a statute which limits its operation to a
particular phase of the subject covered by
the general law.... An implied repeal of
prior statutes will be restricted to
statutes of the same general nature, since
the legislature is presumed to have known
of the existence of prior special or
particular
legislation,
and
to
have
contemplated only a general treatment of
the
subject
matter
by
the
general
enactment. Therefore, where the later
general
statute
does
not
present
an
irreconcilable conflict the prior special
statute will be construed as remaining in
effect as a qualification of or exception
to the general law.
"'However, since there is no rule of
law to prevent the repeal of a special by
a later general statute, prior special or
local
statutes
may
be
repealed
by
implication from the enactment of a later
general statute where the legislative
intent
to
effectuate
a
repeal
is
unequivocally expressed. A repeal will
also
result
by
implication
when
a
comprehensive revision of a particular
subject
is
promulgated,
or
upon
the
predication of a statewide system of
administration
to
replace
previous
regulation
by
localities.'
(Footnotes
omitted.)
"To the same effect is this Court's observation on
repeals by implication contained in Connor, supra,
275 Ala. at 234, 153 So. 2d at 791-92, quoting from
50 Am. Jur. Statutes, § 564:
1060496
28
"'There is no rule which prohibits the
repeal by implication of a special or
specific act by a general or broad one.
The question is always one of legislative
intention, and the special or specific act
must yield to the later general or broad
act, where there is a manifest legislative
intent that the general act shall be of
universal application notwithstanding the
prior special or specific act. It is,
however, equally true that the policy
against implied repeals has peculiar and
special
force
when
the
conflicting
provisions, which are thought to work a
repeal, are contained in a special or
specific act and a later general or broad
act. In such case, there is a presumption
that the general or broad law was not
designed to repeal the special or specific
act, but that the special or specific act
was intended to remain in force as an
exception to the general or broad act, and
there is a tendency to hold that where
there are two acts, one special or specific
act which certainly includes the matter in
question, and the other a general act which
standing alone would include the same
matter so that the provisions of the two
conflict, the special or specific act must
be given the effect of establishing an
exception to the general or broad act.
Hence,
it
is
a
canon
of
statutory
construction that a later statute general
in its terms and not expressly repealing a
prior special or specific statute, will be
considered as not intended to affect the
special or specific provisions of the
earlier statute, unless the intention to
effect the repeal is clearly manifested or
u n a v o i d a b l y
i m p l i e d
b y
t h e
irreconcilability
of
the
continued
operation of both, or unless there is
1060496
29
something in the general law or in the
course of legislation upon its subject
matter that makes it manifest that the
legislature contemplated and intended a
repeal. Unless there is a plain indication
of an intent that the general act shall
repeal the special act, the special act
will continue to have effect, and the
general words with which it conflicts will
be restrained and modified accordingly, so
that the two are to be deemed to stand
together, one as the general law of the
land, and the other as the law of the
particular case.'"
Day v. Morgan County Comm'n, 487 So. 2d 856, 858-59 (Ala.
1986) (emphasis added).
The LTSA is the type of comprehensive statewide revision
of a particular subject that this Court in Day, supra,
contemplated can amend or repeal prior local acts. This Court
has noted the manifest legislative intent in enacting the
LTSA, i.e., that the LTSA, a general act, shall be of
universal application in order to bring uniformity to local
taxing systems. Red Bay, 894 So. 2d at 655. Furthermore, the
LTSA specifically refers to the types of special and local
acts the legislature did not intend to repeal or amend,
thereby evidencing its intent to amend or repeal the remaining
provisions of special and local laws that conflict with the
LTSA. See LTSA § 11; § 11-3-11.2(c) and (d). The Tax Board
1060496
The Tax Board cites § 11-3-11.2(b) as evidence of
6
legislative intent to the contrary; that section provides, in
relevant part:
"If
a
specific
provision
of
the
rules
and
regulations
of
the
Department
of
Revenue
is
inconsistent with a specific provision of a local
act, resolution, or general law authorizing or
levying a local tax, including a gross receipts tax
in the nature of a sales tax, as defined in Section
40-2A-3(8), which was enacted or adopted prior to
February 25, 1997, the local act, resolution, or
general law provision shall prevail."
In the present case, the appeal provision in conflict with the
local act is not set forth in a rule or regulation of the
Department of Revenue; it is set forth in § 40-2A-7(b)(5) and
§ 40-2A-9(g) of the TBOR. Consequently, § 11-3-11.2(b) does
not suggest that the LTSA does not apply the administrative-
appeal process in § 40-2A-7(b)(5) and § 40-2A-9(g) to appeals
from final assessments issued by the Tax Board.
30
has not demonstrated that the unique appeal procedure of the
local act, which is in conflict with the appeal procedure
provided in the TBOR, falls within any of the excepted
categories of statutes.6
In sum, we see nothing in the LTSA indicating that the
administrative-appeal procedure stated in § 40-2A-7(b)(5) and
§ 40-2A-9(g) of the TBOR should not also apply to the Tax
Board, the local taxing authority in this case. Therefore, we
hold that the LTSA effectively amended § 10 of the local act
to incorporate an administrative-appeal process in conformity
1060496
In the event that this Court ruled that the LTSA and the
7
TBOR did not require the Tax Board to offer an administrative-
appeal process, the Company argued that principles of
equitable estoppel, such as those outlined in Ex parte State
Department of Human Resources, 548 So. 2d 176 (Ala. 1988),
should prevent the Company's appeal from being dismissed as
untimely filed.
In Ex parte State Department of Human Resources, the
Department
of
Human
Resources
("DHR")
had
adopted
a
regulation
that authorized a party to appeal from a DHR-administrative
ruling by filing a timely notice of appeal with the
appropriate circuit court. 548 So. 2d at 177. However, the
statutory provision governing appeals from DHR-administrative
proceedings required the party to file a timely notice of
appeal with DHR in addition to filing a petition with the
circuit court. 548 So. 2d at 176. After the petitioner in
that case relied on the regulation and filed a timely notice
of appeal with the circuit court but not with DHR, DHR
contended that the petitioner's appeal should be dismissed
because he had not filed a timely notice of appeal with DHR in
accordance with the statute. 548 So. 2d at 177. This Court
held that DHR did not have the authority to adopt a regulation
creating an appeal process that conflicted with the statutory
appeal process. However, applying principles of equitable
31
with § 40-2A-7(b)(5) and § 40-2A-9(g) of the TBOR.
Under the facts as alleged in the complaint, the Company
filed a notice of administrative appeal to the Tax Board
within 30 days of the final assessment. Because the Company
had the right, under the LTSA and the TBOR, to file an
administrative appeal after the final assessment, the Tax
Board's May 31, 2006, letter operated, in effect, as a denial
of the Company's administrative appeal. The Company filed a
7
1060496
estoppel, this Court refused to dismiss the appeal as
untimely, noting that "it would be unfair to permit the
Department to now rely on its own wrongdoing in order to deny
[the petitioner] an appeal." 548 So. 2d at 179.
In the present case, however, the appeal to the circuit
court was timely filed under the governing statutory
provisions. Consequently, we are not required to consider
whether principles of equitable estoppel should apply.
Because
the
trial
court
dismissed
the
Company's
remaining
8
claims not on the merits but on the basis that they were
untimely filed, we express no opinion on the merits of those
remaining claims.
32
notice of appeal to the circuit court within 30 days of the
Tax Board's May 31, 2006, letter; therefore, under the
procedure outlined in § 40-2A-9(g), the Company's notice of
appeal to the circuit court was timely. Consequently, the
trial court erred in dismissing the Company's notice of appeal
as untimely. Because the notice of appeal was timely filed,
the trial court erred in dismissing the Company's remaining
claims as an impermissible substitute for a timely appeal.8
Conclusion
The judgment of the trial court dismissing the Company's
action 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. | May 16, 2008 |
1ec49365-7f14-4838-a926-2b23b472cd94 | Hercules Panayiotou, M.D. v. Johnson Jamie Sullivan, as administratrix of the estate of Mae Sullivan, deceased | N/A | 1061829 | Alabama | Alabama Supreme Court | REL: 05/30/2008
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, 2007-2008
____________________
1061829
____________________
Hercules Panayiotou, M.D.
v.
Jamie Sullivan Johnson, as administratrix of the estate of
Mae Sullivan, deceased
Appeal from Mobile Circuit Court
(CV-04-728)
STUART, Justice.
Dr. Hercules Panayiotou appeals the order of the Mobile
Circuit Court denying his motion for a summary judgment in the
medical-malpractice action filed against him by Jamie Sullivan
1061829
Mobile Infirmary Medical Center and IMC Diagnostic &
1
Medical Clinic, P.C., were later dismissed from the case.
2
Johnson, as administratrix of the estate of Mae Sullivan,
deceased. We reverse and remand.
I.
On March 7, 2002, Dr. Panayiotou performed a heart-
catheterization procedure on Mae Sullivan at the Mobile
Infirmary Medical Center. During the course of the procedure,
a coronary artery ruptured. Emergency coronary artery bypass
surgery was performed; however, Sullivan died on March 9,
2002.
On March 8, 2004, Johnson sued Dr. Panayiotou, Mobile
Infirmary Medical Center, and Dr. Panayiotou's medical
practice, IMC Diagnostic & Medical Clinic, P.C., in the Mobile
Circuit Court, alleging medical malpractice. On May 11,
1
2007, Dr. Panayiotou moved for a summary judgment arguing that
Johnson could not establish, by substantial evidence, that he
had breached the appropriate standard of care during his
treatment of Sullivan. Specifically, Dr. Panayiotou argued
that because Johnson's action was governed by the Alabama
Medical Liability Act, § 6-5-540 et seq., Ala. Code 1975 ("the
AMLA"), Johnson was required to present expert testimony from
1061829
Section 6-5-548(c) provides:
2
"(c) Notwithstanding any provision of the
Alabama Rules of Evidence to the contrary, if the
health care provider whose breach of the standard of
care is claimed to have created the cause of action
is certified by an appropriate American board as a
specialist, is trained and experienced in a medical
specialty, and holds himself or herself out as a
specialist,
a
'similarly situated health care
provider' is one who meets all of the following
requirements:
3
a "similarly situated health care provider" to establish a
breach of the standard of care. See Holcomb v. Carraway, 945
So. 2d 1009, 1012 (Ala. 2006) (stating that a plaintiff
ordinarily must present expert testimony to establish that a
defendant health-care provider failed to meet the standard of
care; however, "such expert testimony is allowed only from a
'similarly situated health care provider'"). Dr. Panayiotou
further argued that the only expert witness identified by
Johnson, Dr. Jay N. Schapira, was not a "similarly situated
health care provider" as that term is defined in § 6-5-548(c)
because, he says, while Dr. Panayiotou was certified by the
American Board of Internal Medicine ("ABIM") in internal
medicine,
cardiovascular
disease,
and
interventional
cardiology, Dr. Schapira was certified by ABIM in only
internal medicine and cardiovascular disease. Therefore, Dr.
2
1061829
"(1) Is licensed by the appropriate
regulatory board or agency of this or some
other state.
"(2) Is trained and experienced in the
same specialty.
"(3) Is certified by an appropriate
American board in the same specialty.
"(4) Has practiced in this specialty
during the year preceding the date that the
alleged breach of the standard of care
occurred."
(Emphasis added.)
4
Panayiotou argued, because it was undisputed that he was
practicing interventional cardiology when he performed the
heart-catheterization procedure on Sullivan, Dr. Schapira was
not a similarly situated health-care provider eligible to
provide expert testimony regarding the standard of care. In
conjunction with his motion for a summary judgment, Dr.
Panayiotou submitted an excerpt of his own deposition in which
he stated that he received his "interventional cardiology
certification the first time [the examination] was ever given
in 1999" and a copy of his curriculum vitae showing, under a
heading listing the examinations he had passed:
"ABIM: Internal Medicine, 25 September 1991
1061829
5
"ABIM: Cardiovascular Subspecialty, November 1993
"ABIM: Interventional Cardiology, November 1999."
On June 14, 2007, Johnson filed her response to Dr.
Panayiotou's summary-judgment motion, arguing that § 6-5-
548(c) requires only that an expert witness be certified in
the same "specialty" as the defendant to be considered a
similarly
situated
health-care
provider
and
that
Dr.
Panayiotou and Dr. Schapira are in fact both certified in the
same specialty –– internal medicine. Cardiovascular disease,
she argues, is actually a "subspecialty" of internal medicine,
and interventional cardiology is, at best, she argues, another
"subspecialty" of internal medicine. However, she argues,
interventional cardiology is more properly viewed as a
subspecialty of cardiovascular disease and thus a "sub-
subspecialty" of internal medicine.
Johnson also argued that, although Dr. Panayiotou held an
ABIM-issued
"certificate
of
added
qualification"
in
interventional cardiology at the time he performed the heart
catheterization on Sullivan, ABIM did not formally recognize
interventional cardiology as a subspecialty of cardiovascular
disease until July 2006. In support of her argument, she
1061829
ABMS is an umbrella organization that oversees 24
3
specialty boards, including ABIM, and establishes standards
for specialty certification. The other boards governed by
ABMS include the American Board of Allergy & Immunology, the
American Board of Anesthesiology, the American Board of Colon
& Rectal Surgery, the American Board of Dermatology, the
American Board of Emergency Medicine, the American Board of
Family Medicine, the American Board of Medical Genetics, the
American Board of Neurological Surgery, the American Board of
Nuclear
Medicine, the American Board of Obstetrics &
Gynecology, the American Board of Ophthalmology, the American
Board
of
Orthopaedic
Surgery,
the
American
Board
of
Otolaryngology, the American Board of Pathology, the American
Board of Pediatrics, the American Board of Physical Medicine
& Rehabilitation, the American Board of Plastic Surgery, the
American Board of Preventive Medicine, the American Board of
Psychiatry & Neurology, the American Board of Radiology, the
American Board of Surgery, the American Board of Thoracic
Surgery, and the American Board of Urology.
6
submitted printed copies of pages from the Web sites of both
ABIM and the American Board of Medical Specialties ("ABMS")
indicating that, on July 14, 2006, ABIM, in an attempt to
standardize the way it recognized subspecialties, announced
that
it
now
recognized
all
certificates
of
added
qualifications as subspecialties of internal medicine.3
Johnson also submitted an affidavit from Dr. Schapira in which
he stated that
"Dr. Panayiotou was not board certified in the
specialty
or
subspecialty
of
interventional
cardiology at the time of the incident made the
basis of this suit (March 9, 2002), but rather had
a 'certificate of added qualification' that was not
recognized as either a specialty or a subspecialty
1061829
In court filings contained in the supplemental record,
4
Johnson indicated that, at a June 19, 2007, hearing on Dr.
Panayiotou's summary-judgment motion, she also proffered as
evidence a printed copy of e-mail correspondence her counsel
had engaged in with Joan Otto, senior credentials manager for
ABIM, on the topic of certificates of added qualifications and
subspecialties. However, she acknowledged in her motion to
supplement the record that the trial court rejected the
proffer as not being in the proper form, apparently because it
was unauthenticated.
During his deposition, Dr. Schapira testified that
5
interventional cardiology had been a subspecialty of internal
7
by [ABMS] ... until July of 2006 when [ABIM]
reclassified
the
'certificate
of
added
qualification' in interventional cardiology as a
subspecialty of cardiology."
Finally, Johnson also submitted a copy of Dr. Panayiotou's
curriculum vitae and noted that it specifically designated the
examination he passed in November 1993 as being for the
"Cardiovascular Subspecialty" (emphasis added), but the
November 1999 examination was merely listed as being for
"interventional cardiology" with any description of that
practice as a subspecialty conspicuously absent.4
After receiving Johnson's motion opposing his summary-
judgment motion, Dr. Panayiotou filed, on June 18, 2007, a
motion asking the trial court to strike Dr. Schapira's
affidavit on the ground that it contradicted his previous
sworn testimony. See Wilson v. Teng, 786 So. 2d 485, 497
5
1061829
medicine "[s]ince 1999 or 2000" and that the interventional
cardiology board "started in 1999, 2000."
8
(Ala. 2000) ("This Court has held that 'a party is not allowed
to directly contradict prior sworn testimony to avoid the
entry of a summary judgment.'" (quoting Continental Eagle
Corp. v. Mokrzycki, 611 So. 2d 312, 317 (Ala. 1992))). The
next day, June 19, 2007, Dr. Panayiotou filed another motion
asking the trial court also to strike the printed copies of
pages taken from ABMS and ABIM's respective Web sites on the
ground
that
the
documents
were
unsworn,
uncertified,
unauthenticated, and, therefore, inadmissible. See Carter v.
Cantrell Mach. Co., 662 So. 2d 891, 893 (Ala. 1995) ("The
documents were not properly authenticated and, thus, they were
inadmissible hearsay, which cannot be relied on to defeat a
properly supported motion for a summary judgment."). Dr.
Panayiotou simultaneously submitted a personal affidavit in
which he made the following statements:
"2. I am a physician duly licensed to practice
medicine in the State of Alabama and was so licensed
at the relevant times. I am certified by [ABIM] as
a specialist in Internal Medicine, Cardiology and
Interventional Cardiology and was so certified at
the relevant times.
1061829
9
"3. [ABIM] formally recognized certification in
the subspecialty of Interventional Cardiology in
1999. In 1999, as part of the certification process
in Interventional Cardiology, I submitted verified
data to the Board stating that I had successfully
accomplished
the
appropriate
number
of
interventional cardiology procedures to enable me to
take
the
examination
for
certification
in
Interventional Cardiology.
"4. As a result of passing this examination,
[ABIM]
certified
me
as
a
specialist
in
the
subspecialty of Interventional Cardiology.
"5. By meeting
the
certification
requirements
of
[ABIM], beginning in 1999 I was allowed to represent
to the public that I am board-certified in the
subspecialty of Interventional Cardiology."
On June 21, 2007, Dr. Panayiotou submitted two additional
affidavits. In the first, ABIM official Joan Otto swore that
"[ABIM] recognized certification in Interventional Cardiology
in 1999" and that "Dr. Panayiotou was certified by [ABIM] in
Interventional Cardiology in 1999." In the second, Amy A.
Mosser, vice president of administration and operations for
ABMS, swore as follows:
"5. ABMS approved the certification process for
Interventional
Cardiology
in
1996
and
began
recognizing certification in this subspecialty in
1999, when the first certifying examination was
offered by the ABIM.
"6. ABIM, like other Member Boards, originally
designated
its
board
certification
for
subspecialties
as
a
'certificate
of
added
1061829
10
qualifications.' This was in conformity with
general ABMS practice at that time. Subsequently,
ABMS decided to transition away from such language.
The ABMS Bylaws in effect in 2002 required future
applications for subspecialty certificates to be
designated as subspecialty certificates, but gave
the Member Boards discretion to continue designating
existing subspecialty certificates as certificates
of added qualifications or special qualifications or
to discontinue those terms and simply use the
subspecialty designation. These differences in
terminology are just that, however, and have no
substantive
effect
on
ABMS's
recognition
of
certification. ABMS has continually recognized ABIM
certification in the subspecialty of Interventional
Cardiology since its inception in 1999."
On
August
15,
2007,
the
trial
court
denied
Dr.
Panayiotou's motion for a summary judgment, holding that Dr.
Schapira was a similarly situated health-care provider
"regardless of [his] lack of sub-subspecialty certification"
and without addressing whether Dr. Panayiotou was actually
certified as a specialist in interventional cardiology in
March 2002 when he performed the heart catheterization on
Sullivan. The trial court simultaneously entered an order
granting
Dr.
Panayiotou's
"motion
to
strike"
without
specifying whether it intended to grant the June 18 motion to
strike, the June 19 motion to strike, or both.
Dr. Panayiotou subsequently moved the trial court to
certify its order denying his motion for a summary judgment
1061829
11
for a permissive appeal pursuant to Rule 5, Ala. R. App. P.,
and, on September 7, 2007, the trial court did so. On
September 21, 2007, Dr. Panayiotou petitioned this Court for
permission to appeal. We granted that petition on November 1,
2007.
II.
"'We apply the same standard of review [in reviewing
the grant or denial of a summary-judgment motion] 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.'"
Mutual Assurance, Inc. v. Schulte, 970 So. 2d 292, 295 (Ala.
2007) (quoting Dow v. Alabama Democratic Party, 897 So. 2d
1035, 1038-39 (Ala. 2004)).
1061829
This presupposes that the defendant health-care provider
6
is certified by an appropriate board as a specialist; if not,
§ 6-5-548(b) governs instead of § 6-5-548(c), and there is no
such requirement.
12
III.
This appeal presents two issue for this Court to
consider: (1) what is the meaning of the term "specialty" as
used in § 6-5-548(c); and (2) was Dr. Panayiotou certified by
ABIM as a specialist in interventional cardiology at the time
he allegedly breached the standard of care in March 2002.
The legislature has defined a similarly situated health-
care provider as a health-care provider that is "certified by
an appropriate American board in the same specialty" as the
defendant health-care provider. § 6-5-548(c)(3) (emphasis
6
added). Dr. Panayiotou argues that a "specialty" for the
purposes of § 6-5-548(c) is any specialized area of medicine
in which a medical board offers certification and that,
because
ABIM
offers
certification
in
interventional
cardiology, that area is therefore a "specialty" for purposes
of § 6-5-548. Johnson, however, argues that an area of
medicine is a "specialty" only if it is specifically
designated by a medical board as a "specialty"; hence, she
argues, because ABIM officially designates interventional
1061829
Eighteen of the specialty boards governed by ABMS,
7
including ABIM, offer certification in specialized areas of
medicine that they officially designate as "subspecialties."
13
cardiology as a "subspecialty," it is not a "specialty" for §
6-5-548 purposes.
We agree with Dr. Panayiotou that a specialty is any
specialized area of medicine in which an American medical
board offers certification. There is no indication in the
AMLA that the legislature intended to define the term
"specialty" based upon the taxonomic scheme used by ABIM,
ABMS, or any other professional medical board. That any
7
appropriate American medical board offers certification in an
area of medicine is itself evidence that that area of medicine
is a specialty.
The interpretation of the term "specialty" advocated by
Johnson, if adopted, would be problematic in its application
because it fails to recognize that some areas of medicine may
technically be deemed "subspecialties" by some boards, but
recognized as specialties by others. For example, in Chapman
v. Smith, 893 So. 2d 293 (Ala. 2004), this Court recognized
that the defendant anesthesiologist was certified in the
specialty field of pain management by the American Academy of
1061829
The defendant physician in Chapman was also board-
8
certified in anesthesiology, although the opinion does not
identify the board that issued that certification. 893 So. 2d
at 296.
14
Pain Management ("AAPM"), a non-ABMS board. ABMS does not
8
recognize pain management as a "specialty" under its taxonomic
scheme; however, the relevant ABMS board, the American Board
of Anesthesiology, does recognize "pain medicine" as a
"subspecialty." Thus, applying the argument advanced by
Johnson,
whether
a
board-certified
anesthesiologist
practicing
in the pain-management/pain-medicine field was a specialist in
that field would hinge on whether the anesthesiologist's
certificate was issued by AAPM, in which case he would be
recognized by our courts as a specialist, or by the American
Board of Anesthesiology, in which case he would not be
recognized as a specialist –– even though both boards
apparently agree that the field is a unique area of medicine
and recognize it as such. The only difference is that the
field is deemed a "subspecialty" in the ABMS hierarchy.
Whether an area of medicine is a "specialty" for purposes of
§ 6-5-548 should not change depending on which board has
certified
the
particular health-care provider in that
specialty.
1061829
15
Moreover, if we were to adopt Johnson's argument relying
on the taxonomic designations used by ABIM and ABMS, it would
pave the way for a gastroenterologist, an endocrinologist, or
a nephrologist, all of whom practice in an area recognized as
a "subspecialty" by ABIM, to testify as a similarly situated
health-care provider against a cardiologist merely because
they were all certified by ABIM in the "specialty" of internal
medicine –– regardless of the fact that their expertise is in
the digestive system, the endocrine system, and the kidneys,
respectively, and that they might have had minimal experience
with medical issues related to the heart. This is precisely
the situation § 6-5-548 was enacted to prevent. Thus, we now
explicitly hold that if an appropriate American medical board
recognizes an area of medicine as a distinct field and
certifies health-care providers in that field, that area is a
specialty for purposes of § 6-5-548.
We note that the Supreme Court of Michigan reached a
similar conclusion when it considered this issue. In Woodard
v. Custer, 476 Mich. 545, 719 N.W.2d 842 (2006), that court
considered the definition of "specialty" as the term is used
1061829
16
in Mich. Comp. Laws § 600.2169, which states, in relevant
part:
"(1) In an action alleging medical malpractice, a
person shall not give expert testimony on the
appropriate standard of practice or care unless the
person is licensed as a health professional in this
state or another state and meets the following
criteria:
"(a) If the party against whom or on whose
behalf the testimony is offered is a specialist,
specializes at the time of the occurrence that is
the basis for the action in the same specialty as
the party against whom or on whose behalf the
testimony is offered. However, if the party against
whom or on whose behalf the testimony is offered is
a specialist who is board certified, the expert
witness must be a specialist who is board certified
in that specialty."
Referring to Dorland's Illustrated Medical Dictionary (28th
ed.), the Woodard court concluded:
"[A] 'specialty' is a particular branch of medicine
or surgery in which one can potentially become board
certified.
"... Moreover, 'sub' is defined as 'a prefix ...
with the meanings "under," "below," "beneath" ...
"secondary," "at a lower point in a hierarchy[.]"'
Random House Webster's College Dictionary (1997).
Therefore, a 'subspecialty' is a particular branch
of medicine or surgery in which one can potentially
become board certified that falls under a specialty
or within the hierarchy of that specialty. A
subspecialty,
although
a
more
particularized
specialty, is nevertheless a specialty. Therefore,
if
a
defendant
physician
specializes
in
a
subspecialty, the plaintiff's expert witness must
1061829
17
have specialized in the same subspecialty as the
defendant physician at the time of the occurrence
that is the basis for the action."
476 Mich. at 561-62, 719 N.W.2d at 851 (emphasis added). The
court also noted in a footnote that ABMS had filed an amicus
curiae brief in which it agreed that a subspecialty
constitutes a specialty. 476 Mich. at 562 n.6, 719 N.W.2d at
851 n.6.
IV.
Having
held
that
interventional
cardiology
is
a
recognized specialty, we must now address whether in fact Dr.
Panayiotou was certified in that specialty at the time of the
alleged breach of the standard of care. Dr. Panayiotou
alleges that he was; Johnson alleges he was not. In
conjunction with his motion for a summary judgment, Dr.
Panayiotou
submitted
evidence,
summarized
above,
sufficient
to
make a prima facie showing that he was board-certified in
interventional cardiology at the time of the alleged breach of
the standard of care in March 2002; thus, the burden then
shifted to Johnson to produce substantial evidence showing
that Dr. Panayiotou was not board-certified in interventional
1061829
After the trial court denied Dr. Panayiotou's motion for
9
a summary judgment and after we granted his subsequent
petition to file an immediate permissive appeal of that
ruling, Johnson obtained a new affidavit from ABIM official
Joan Otto and moved the trial court to supplement the record
to include that affidavit. Dr. Panayiotou objected, arguing
that Rule 10(f), Ala. R. App. P., does not allow the record on
appeal to be supplemented to include evidence that was not in
the record at the trial court level. The trial court
nevertheless granted Johnson's motion to supplement, and the
new affidavit was added to the record. Dr. Panayiotou has
since moved this Court to strike the supplement to the record,
and that motion has been granted. See Cowen v. M.S. Enters.,
Inc., 642 So. 2d 453, 455 (Ala. 1994) ("Rule 10(f) provides
for the supplementation of the record only to include matters
that were in evidence in the trial court. That rule was not
intended to allow the inclusion of material in the record on
appeal that had not been before the trial court.").
18
cardiology in March 2002. Johnson has failed to meet that
burden.
The evidence Johnson submitted in an attempt to meet her
burden included: (1) printed copies of pages from the Web
sites of both ABIM and ABMS; (2) an affidavit from Dr.
Schapira; and (3) Dr. Panayiotou's curriculum vitae. Dr.
9
Panayiotou filed separate motions to strike both the printed
copies of the pages from the Web sites and Dr. Schapira's
affidavit, and the trial court subsequently entered an order
granting a motion to strike without stating which motion to
strike it was granting. Dr. Panayiotou's position is that the
trial court's order granted both motions to strike, while
1061829
19
Johnson alleges it is unclear what motion or motions the trial
court intended to strike. Regardless of the trial court's
intent, however, the evidence submitted by Johnson was
insufficient to rebut Dr. Panayiotou's prima facie showing
that he was board-certified in interventional cardiology at
the time he allegedly breached the standard of care in March
2002.
We first note that the printed copies of pages from the
ABIM and ABMS Web sites submitted by Johnson "were not
properly authenticated and, thus, they were inadmissible
hearsay, which cannot be relied on to defeat a properly
supported motion for a summary judgment." Carter, 662 So. 2d
at 893. Accordingly, we will not consider that evidence on
appeal, regardless of whether the trial court actually struck
it. See Chatham v. CSX Transp., Inc., 613 So. 2d 341, 346
(Ala. 1993) (stating that this Court "may not consider"
inadmissible evidence that a party properly moved to strike).
Citing Wilson, supra, Dr. Panayiotou also urges us not to
consider
Dr.
Schapira's
affidavit,
which
directly
contradicted
his deposition testimony. However, the so-called "sham
affidavit doctrine" applied by this Court in Wilson, which
1061829
20
prevents
an
individual
from contradicting prior sworn
testimony to avoid the entry of a summary judgment, has, to
date, been applied only against actual parties in Alabama, and
Dr. Schapira is an expert witness, not a party. See Champ
Lyons, Jr. & Ally W. Howell, Alabama Rules of Civil Procedure
Annotated § 56.7 (4th ed. 2004) ("Strong dictum in Tittle v.
Alabama Power Co., 570 So. 2d 601 (Ala. 1990) suggests that
the rule preventing a party from contradicting an earlier
deposition by affidavit for purposes of avoidance of the entry
of summary judgment does not apply to prevent such activity
when the deponent is a non-party."). While one law review
article has noted that other courts to consider the issue have
"generally agreed that [the sham-affidavit doctrine] applies
to the contradictory testimony of expert witnesses," Applying
the Sham Affidavit Doctrine in Arizona, 38 Ariz. St. L.J. 995,
1048 (Winter 2006) (footnotes omitted), and one court has
noted that "[it] can think of no reason, however, not to apply
this rule to the present case involving the testimony and
affidavit of the plaintiff's sole expert witness," Adelman-
Tremblay v. Jewel Cos., 859 F.2d 517, 521 (7th Cir. 1988), we
need not address that issue at this time because, even if we
1061829
21
considered the affidavit, we would have to conclude that
Johnson failed to create a genuine issue of fact regarding
whether Dr. Panayiotou was board-certified in interventional
cardiology in March 2002.
In his affidavit, Dr. Schapira declared that Dr.
Panayiotou
was
not
board
certified
in
interventional
cardiology in March 2002 because, at that time, Dr. Panayiotou
held only a "certificate of added qualification." Johnson
argues that Dr. Schapira's statement is further supported by
Dr. Panayiotou's own curriculum vitae, which omits the word
"subspecialty" next to "Interventional Cardiology" in the list
of examinations passed by Dr. Panayiotou, but explicitly lists
"Cardiovascular Subspecialty" (emphasis added) in that same
list, thus indicating, Johnson argues, that even Dr.
Panayiotou recognized that interventional cardiology was not
a "subspecialty" in 1999 when he passed the examination.
However, Johnson's argument was directly refuted by an
ABMS official, who, in an affidavit submitted by Dr.
Panayiotou, explained that there was no substantive difference
between a certificate of added qualification and certification
in a subspecialty, and that "ABMS has continually recognized
1061829
22
ABIM certification in the subspecialty of Interventional
Cardiology since its inception in 1999." In light of this
definitive evidence on this point, we can say as a matter of
law that the certificate of added qualification Dr. Panayiotou
held in interventional cardiology in March 2002 was the
equivalent of subspecialty certification and that he was
accordingly a board-certified specialist in interventional
cardiology at that time.
We further note that the Michigan Supreme Court, in
Woodard, did not have to directly consider this issue;
however, a concurring Justice nevertheless did so and
similarly concluded that there was no functional difference
between a certificate of added qualification and board
certification, stating:
"As we did above with regard to the 'specialty'
versus 'subspecialty' dispute, it is again necessary
for us to resolve a question that arises in most
cases as a result of nomenclature often used to
distinguish between certifications offered for broad
specialty areas and certifications offered for the
narrower
subspecialty
areas.
Specifically,
certifications coinciding with the broader specialty
areas are often referred to by parties and in case
law as board certifications, while certifications
coinciding with the narrower specialty areas are
referred
to
as
'certificates
of
special
qualifications'
or
'certificates
of
added
qualifications.' The result is that in many cases,
1061829
23
such
as
Woodard,
plaintiffs
will
argue
that
certificates of special qualifications are not board
certifications that need to be matched. We clarify,
however, that under the above definition of the
phrase 'board certified,' any difference between
what
are
traditionally
referred
to
as
board
certifications and what have commonly been called
certificates of special qualifications is merely one
of semantics. When a certificate of special
qualifications is a credential bestowed by a
national,
independent
medical
board
indicating
proficiency in a medical specialty, it is itself a
board certification that must be matched."
476 Mich. 545, 613, 719 N.W.2d 842, 878 (Taylor, C.J.,
concurring in the result) (emphasis added).
V.
Dr. Panayiotou moved the trial court to enter a summary
judgment in his favor in the medical-malpractice action filed
against him by Johnson, alleging that she had failed to
identify a similarly situated health-care provider who would
testify that he had breached the standard of care in his
treatment of Sullivan. The trial court denied his motion,
holding that the expert identified by Johnson, Dr. Schapira,
was in fact similarly situated to Dr. Panayiotou because they
were both board-certified by ABIM in internal medicine.
However, because Dr. Panayiotou put forth evidence indicating
that he was also board-certified by ABIM in interventional
1061829
24
cardiology when the alleged malpractice occurred and that Dr.
Schapira did not hold that certification, the trial court
erred in holding that Dr. Panayiotou and Dr. Schapira were
similarly situated health-care providers. Accordingly, the
order of the trial court denying Dr. Panayiotou's motion for
a summary judgment is reversed, and this cause is remanded for
the trial court to enter a summary judgment for Dr.
Panayiotou.
REVERSED AND REMANDED.
See, Lyons, Woodall, Smith, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., concurs in part and dissents in part.
Murdock, J., dissents.
1061829
25
COBB, Chief Justice (concurring in part and dissenting in
part).
The majority opinion presents a new rationale for
defining the term "specialty" as applied to similarly situated
health-care providers under Ala. Code 1975, § 6-5-548.
Although I do not disagree with this rationale and I concur in
its adoption, I do not believe that it is appropriate to apply
it to this case. In this case, and under the state of the law
at the time the trial court found that Dr. Panayiotou and Dr.
Schapira were similarly situated health-care providers, the
trial court was correct. The record shows that, in the
context of the medical procedure in question, Dr. Schapira had
experience similar to or greater than Dr. Panayiotou. Under
these circumstances, I believe that it would be more just to
apply the new construction of § 6-5-548 as adopted by the
majority prospectively, rather than retroactively. See, e.g.,
Ex parte F.P., 857 So. 2d 125 (Ala. 2003); City of Daphne v.
City of Spanish Fort, 853 So. 2d 933 (Ala. 2003); and Ex parte
Bonner, 676 So. 2d 925 (Ala. 1995)(cases supporting the
general rule that statutes should be construed prospectively
and not retrospectively in the absence of a particular
1061829
26
indication
of
legislative
intent
to
apply
statute
retrospectively). | May 30, 2008 |
efd192b6-b518-48cf-b0a3-2e8bf5ed131a | Baldwin County Electric Membership Corporation v. City of [ 330 ) Fairhope et al. | N/A | 1060475 | Alabama | Alabama Supreme Court | REL: 2/1/08
REL: 6/13/08 as modified on denial of reh'g
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
_________________________
1060475
_________________________
Baldwin County Electric Membership Corporation
v.
City of Fairhope
_________________________
1060545
_________________________
City of Fairhope
v.
Baldwin County Electric Membership Corporation
Appeals from Baldwin Circuit Court
(CV-93-390)
1060475; 1060545
2
SEE, Justice.
This appeal and cross-appeal arise out of a civil action
between two electric suppliers -- Baldwin County Electric
Membership Corporation ("Baldwin") and the City of Fairhope
("Fairhope"). Baldwin alleges that Fairhope is wrongly
supplying electricity to premises Baldwin should be serving
under the Service Territories for Electric Suppliers Act, §
37-14-30 et seq., Ala. Code 1975 ("the Act"), and seeks the
prescribed statutory damages for Fairhope's alleged wrongful
service to these premises. A jury returned a general verdict
in favor of Fairhope, and Fairhope was awarded attorney fees,
expenses, and costs totaling $295,945.27.
Baldwin appeals, arguing that the trial court erred by
admitting certain evidence at trial and by refusing to give
certain jury instructions Baldwin requested . In its cross-
appeal, Fairhope argues that the trial court erred by denying
Fairhope's motions for a judgment as a matter of law because,
Fairhope alleges, Baldwin did not provide notice to Fairhope
as required by the Act and because Baldwin's claims were
untimely. We find no merit in Baldwin's appeal and therefore
affirm the decision of the trial court, rendering moot
Fairhope's cross-appeal, which we dismiss.
1060475; 1060545
The relevant portion of § 37-14-32 states:
1
"Except as otherwise provided ... in areas
outside existing municipal limits (including areas
annexed to municipalities on or after April 26,
1984), no electric supplier shall construct or
maintain
electric
distribution
lines
for
the
provision of retail electric service to any premises
being provided retail electric service by another
electric supplier, or to any new premises located
within the boundaries of assigned service areas of
another electric supplier. Assigned service areas
outside
existing
municipal
limits
are
hereby
established as set forth in this section.
"(1) ... [E]ach electric supplier is
hereby granted a legislative franchise and
assigned the sole obligation, in areas
outside existing municipal limits and
within existing municipal limits to the
extent the standards of this section are
made applicable by subdivision (a)(5) of
Section 37-14-33, for provision of retail
electric service to all new premises
located in closer proximity to existing
distribution lines of such supplier than
the nearest existing distribution lines of
any other electric supplier (including
areas
annexed to municipalities on or after
April 26, 1984 whether or not a municipal
franchise has been granted to the electric
supplier to whom an area annexed has been
3
Facts and Procedural History
Baldwin sued Fairhope on May 28, 1993, alleging that
Fairhope was providing electricity to 43 customers in a
service area that Baldwin says was assigned to Baldwin under
the Act. § 37-14-32, Ala. Code 1975. Baldwin sought both
1
1060475; 1060545
assigned
or
to
any other
electric supplier)
.... Thus, the assigned service area of
each electric supplier in areas outside
existing
municipal limits is defined
as
the
area or areas consisting of a line or lines
drawn equidistant between the existing
distribution
lines
of
such
electric
supplier
and
the
nearest
existing
distribution line of any other electric
supplier. Where a premises is located in
the assigned service area of two electric
suppliers, the supplier in whose assigned
area the majority of the square footage of
the premises falls shall provide the
service."
See also Alabama Power Co. v. Citizens of Alabama, 740 So. 2d
371 (Ala. 1999) (providing a historical background of the
Act).
The relevant portion of § 37-14-37(b) provides:
2
"(b) If an electric supplier believes that
another electric supplier has already rendered or
extended electric service at retail to a premise
which was designated to be served by the aggrieved
electric supplier, the aggrieved electric supplier
shall give notice in writing to the offending
electric supplier of the potential violation of this
article. The offending electric supplier shall have
45 days to determine whether it is in violation of
this article. ... If the offending electric supplier
does not cease rendering service and remove its
distribution facilities within the 45 day period or
4
declaratory and injunctive relief, along with recovery of 25%
of the gross revenues derived by Fairhope from its alleged
wrongful delivery of electricity, as allowed by the Act. See
§ 37-14-37(b), Ala. Code 1975. Thirteen years later, Baldwin
2
1060475; 1060545
within such longer period designated by the
aggrieved electric supplier, the aggrieved electric
supplier may file suit ... to enjoin the offending
electric supplier from continuing such rendition or
extension and for damages. If a violation of this
article is proved, the offending electric supplier
shall (1) remove its facilities constructed for the
rendition of retail electric service to the premises
at the time and upon the schedule designated in
writing by the aggrieved electric supplier; and (2)
pay to the aggrieved electric supplier 25 percent of
the gross revenues derived by the offending electric
supplier from the sale of electric service in
violation of this article from and after the date
that is 45 days after the date on which the notice
of violation was given."
It appears that this delay was caused, in part, by both
3
parties awaiting decisions on the constitutionality of the
Act. See Municipal Utilities Bd. v. Alabama Power Co., 934
F.2d 1493 (11th Cir. 1991); Alabama Power Co. v. Citizens of
Alabama, 740 So. 2d 371 (Ala. 1999).
5
was granted leave to amend its complaint and add a 44th cause
of action, which incorporated hundreds of additional alleged
territorial violations by Fairhope that had occurred since the
filing of the original complaint. In response to Baldwin's
3
original
and
amended
complaints,
Fairhope
denied
the
allegations and counterclaimed, seeking declaratory and
injunctive
relief
on
the
basis
that
the
Act
was
unconstitutional as it applied to Fairhope. Fairhope alleged
that the parties, before the Act became effective, had an oral
contract in which Fairhope would supply electricity within the
1060475; 1060545
"No State shall ... pass any ... Law impairing the
4
Obligation of Contracts ...." U.S. Const. art 1, § 10.
"That no ... law ... impairing the obligations of
5
contracts ... shall be passed by the legislature ...." § 22,
Ala. Const. 1901. "There can be no law of this state
impairing the obligation of contracts by destroying or
impairing the remedy for their enforcement ...." § 95, Ala.
Const. 1901.
6
city
limits
of
Fairhope,
while
Baldwin
would
supply
electricity to customers in Baldwin County outside the
municipality. Fairhope argued that the Act, by changing the
territory Fairhope and Baldwin each served, unlawfully
impaired the obligations of an existing contract in violation
of Art. I, § 10, United States Constitution, and §§ 22 and
4
95, Alabama Constitution of 1901.5
Before trial, Baldwin filed a motion in limine, asking
the court to exclude "any evidence of an oral territory
service agreement allegedly entered into by the parties prior
to passage of [the Act]," and argued that, even if such an
agreement existed, it had been abrogated by the enactment of
the Act. Similarly, Fairhope filed a motion in limine,
seeking to exclude evidence of those claims Fairhope argued
were time-barred. The trial court denied both motions. The
action was tried by a jury, which rendered a general verdict
1060475; 1060545
The remainder of § 37-14-37(b) states:
6
"In addition [if the aggrieved electric supplier is
successful], the offending electric supplier shall
reimburse the aggrieved electric supplier for all
witness fees, court costs, reasonable attorney fees
and other expenses incurred in any litigation to
enforce the aggrieved electric supplier's rights
under this article. If the violation is not proved,
the aggrieved electric supplier shall reimburse the
offending electric supplier for all witness fees,
court costs, reasonable attorneys fees and other
costs incurred in the litigation. All actions or
proceedings for injunction or for damages shall be
brought within three years after the offending
electric supplier first renders or extends electric
service at retail in violation of this article."
7
in favor of Fairhope. As the prevailing party, Fairhope
sought, and was awarded, attorney fees, costs, and expenses
totaling $295,945.27. See § 37-14-37(b), Ala. Code 1975.6
Baldwin now appeals from the judgment entered on the jury
verdict and asks this Court to set aside the fee award.
Fairhope cross-appeals, arguing that the trial court erred by
denying its motions for a judgment as a matter of law because,
it says, Baldwin failed to establish that its claims were
timely or, alternatively, because, it says, Baldwin failed to
prove that it had provided notice to Fairhope that Baldwin
believed Fairhope was wrongly providing electric service to
customers.
1060475; 1060545
The applicable portion of § 11-47-5 states:
7
"Contracts entered into by a municipality shall
be in writing, signed and executed in the name of
the city or town by the officers authorized to make
the same and by the party contracting. In cases not
otherwise directed by law or ordinance, such
contracts shall be entered into and executed by the
mayor in the name of the city or town and all
obligations for the payment of money by the
municipality, except for bonds and interest coupons,
shall be attested by the clerk."
The relevant portion of § 37-6-3(13) states:
8
"A cooperative shall have the power:
8
Issues
On appeal, Baldwin argues (1) that the trial court
committed reversible error by allowing Fairhope to present
evidence of the existence of an oral service-territory
agreement between Fairhope and Baldwin that Baldwin alleges
was abrogated by the Act and that conflicts with the Act; (2)
that the trial court erred by refusing to give Baldwin's
requested jury instructions on the requirements that govern
contracts entered into by municipalities, as established by §
11-47-5, Ala. Code 1975, and by refusing to give an
7
instruction informing the jury that Baldwin's board of
trustees was required to approve all contracts entered into by
Baldwin, as established in § 37-6-3(13), Ala. Code 1975; and
8
1060475; 1060545
"....
"(13) To make any and all contracts
necessary or convenient for the full
purpose of the powers in this chapter
granted ... and in connection with any such
contract to stipulate and agree to such
covenants, terms and conditions as the
board of trustees may deem appropriate
...."
9
(3) that the trial court's errors warrant a reversal and that
the fees awarded to Fairhope should be set aside. Fairhope
cross-appeals on the grounds that the trial court should have
granted either or both of Fairhope's motions for a judgment as
a matter of law because, it alleges, Baldwin's claims are
untimely and Baldwin cannot prove every element of its claim.
Analysis
I. Evidentiary Issue
At trial, Fairhope was permitted to present evidence of
an alleged oral service-territory agreement between the
parties. Baldwin argues that allowing such evidence was
reversible error because, it argues, such an agreement is
invalid under the Act, the alleged agreement was not in
writing or approved by Baldwin's board of trustees as required
by law, and the agreement lacked sufficient certainty to be
1060475; 1060545
10
enforceable. Fairhope argues, however, that this issue was
not preserved for appeal.
A. Standard of Review
Two fundamental principles govern the standard by which
this Court reviews a trial court's rulings on the admission of
evidence. Middleton v. Lightfoot, 885 So. 2d 111, 113 (Ala.
2003). "'"The first grants trial judges wide discretion to
exclude or admit evidence."'" 885 So. 2d at 113 (quoting Mock
v. Allen, 783 So. 2d 828, 835 (Ala. 2000), quoting in turn
Wal-Mart Stores, Inc. v. Thompson, 726 So. 2d 651, 655 (Ala.
1998)). However, "a trial court exceeds its discretion where
it admits prejudicial evidence that has no probative value."
885 So. 2d at 113 (citing Powell v. State, 796 So. 2d 404, 419
(Ala. Crim. App. 1999), aff'd, 796 So. 2d 434 (Ala. 2001)).
"'"The second principle 'is that a judgment cannot be
reversed on appeal for an error [in the improper admission of
evidence] unless ... it should appear that the error
complained of has probably injuriously affected substantial
rights of the parties.'"'" Middleton, 885 So. 2d at 113
(quoting Mock, 783 So. 2d at 835, quoting in turn Wal-Mart
Stores, 726 So. 2d at 655). See also Rule 45, Ala. R. App. P.
"'The burden of establishing that an erroneous ruling was
1060475; 1060545
Baldwin makes four arguments in support of its position.
9
First Baldwin argues that a service-territory agreement
between electric suppliers is valid only if that agreement is
adopted by the legislature, citing § 37-14-36, Ala. Code 1975
("Subsequent to May 20, 1985, suppliers shall be permitted to
enter into mutual agreements ... provided, however, that no
subsequent agreement shall be valid unless and until it has
been reviewed by the legislature and the legislature has
amended this section to mandate the implementation of the
provisions of such agreement.").
Baldwin's second argument is that the alleged agreement
was rendered void and unenforceable upon the passage of Act
because the agreement contained territorial-assignment rules
that were contrary to those established in the Act. Baldwin's
brief at 30-31. Put another way, Baldwin argues that the
alleged agreement was in derogation of the Act and was,
therefore, void and unenforceable, citing Marx v. Lining, 231
11
prejudicial is on the appellant.'" Middleton, 885 So. 2d at
113-14 (quoting Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.
2d 165, 167 (Ala. 1991)).
B. Baldwin's Motion in Limine
Before
trial,
Baldwin
moved
the
trial
court
to
"preclud[e] the parties from making any reference to or
submitting any evidence concerning the oral service territory
agreement which Fairhope contends that it entered into with
[Baldwin]." Baldwin argues on appeal that the trial court
committed reversible error by allowing Fairhope to present
evidence of the alleged oral service-territory agreement
between the parties. Fairhope argues that Baldwin's motion
9
1060475; 1060545
Ala. 445, 448, 165 So. 207, 209-10 (1935) ("It is established
by a long line of decisions of this court that contracts
specifically prohibited by law, or the enforcement of which
violates the law, or the making of which violates the laws
which were enacted for regulation and protection, as
distinguished from a law created solely for revenue purposes,
are void and unenforceable."). Baldwin's brief at 30.
Third, Baldwin argues that it was reversible error for
the trial court to admit evidence of the alleged oral
agreement because the agreement was not in writing, as
required by § 11-47-5, Ala. Code 1975 ("Contracts entered into
by a municipality shall be in writing, signed and executed in
the name of the city or town by the officers authorized to
make the same and by the party contracting."), and was not
approved by Baldwin's board of trustees, as required by § 37-
6-3(13), Ala. Code 1975 ("A cooperative shall have the power:
... (13) To make any and all contracts necessary or convenient
... and agree to such covenants, terms and conditions as the
board of trustees may deem appropriate ...."). Baldwin's brief
at 34.
Finally, Baldwin asserts that evidence of the alleged
oral service-territory agreement should not have been admitted
because, it argues, the alleged agreement lacked sufficient
certainty to be enforceable. Baldwin's brief at 38.
12
in limine, seeking to exclude any evidence of the alleged oral
service-territory agreement, was insufficient to preserve the
issue for appeal and that Baldwin's objection to that evidence
at trial, which was necessary to perfect Baldwin's appeal on
this issue, was untimely. Fairhope further argues that even
if the trial court did err by admitting the evidence, Baldwin
cannot demonstrate that it was prejudiced by the trial court's
ruling. We agree.
1060475; 1060545
13
A motion in limine seeking to exclude evidence, which is
denied by the trial court, is, "unless the court clearly
indicates to the contrary, the legal equivalent of an
announcement by the court that it reserves the right to rule
on the subject evidence when it is offered and is not a final
ruling made in a pre-trial context." Owens-Corning Fiberglass
Corp. v. James, 646 So. 2d 669, 673 (Ala. 1994) (citing Baxter
v. Surgical Clinic of Anniston, P.A., 495 So. 2d 652 (Ala.
1986)). This Court in Owens-Corning continued, stating as
follows:
"An appellant who suffers an adverse ruling on a
motion
to
exclude
evidence,
made
in
limine,
preserves this adverse ruling for post-judgment and
appellate
review
only
if
he
objects
to
the
introduction of the proffered evidence and assigns
specific grounds therefor at the time of the trial,
unless he has obtained the express acquiescence of
the trial court that subsequent objection to
evidence
when
it
is
proffered
at
trial
and
assignment of grounds therefor are not necessary."
646 So. 2d at 669 (citing Liberty Nat'l Life Ins. Co. v.
Beasley, 466 So. 2d 935 (Ala. 1985)).
Baldwin argues that the trial court's denial of its
motion
in
limine
was
"unequivocal
...
absolute
and
unconditional"
and
that
an
objection
was
therefore
unnecessary. Baldwin's reply brief at 5. In support of this
1060475; 1060545
The record indicates that the trial court's statement,
10
as quoted by Baldwin in support of its argument, was made as
part of a discussion between the trial court and Fairhope's
counsel. The discussion relates to Fairhope's motion in
limine, in which Fairhope alleges that a large portion of
Baldwin's claims were untimely pleaded and therefore time-
barred. The trial court, in the passage quoted by Baldwin,
appears to be discussing whether the trial court could wait to
address the timeliness of Baldwin's claims until after the
jury determined whether there was an oral service-territory
agreement.
substituted p.14
argument, Baldwin quotes the trial court as saying that "[t]he
issue that I think needs to be presented to the jury is, is
there a contract, or is there not a contract between the
parties. After that it seems to me all of this is just
details." Baldwin's reply brief at 6. Although the trial
court did make this statement, it was not made in reference to
Baldwin's motion in limine.
The trial court denied Baldwin's
10
motion in limine, saying: "I am going to deny the motion in
limine as to the oral agreement. I think we have got some
other matters." Although the record certainly supports an
argument that the trial court made statements indicating that
it believed that the oral-agreement issue was dispositive, the
record does not reflect that the trial court "clearly
indicated" that further objections to the admission of
evidence
of
the
oral service-territory agreement were
unnecessary
or
that
Baldwin
obtained
the
"express
acquiescence" of the trial court that subsequent objections to
1060475; 1060545
15
such evidence were not required. Liberty National, 466 So. 2d
at
936.
Therefore,
Baldwin's
motion
in
limine
was
insufficient to preserve this issue for appeal.
Because Baldwin's motion in limine was insufficient to
preserve for appeal the question of the admissibility of
evidence of the oral service-territory agreement, we are left
to address whether Baldwin took the appropriate steps during
trial to preserve the issue for appeal. For Baldwin to
preserve error, it had to make "a timely objection ...,
stating the specific ground of objection, if the specific
ground was not apparent from the context." Rule 103, Ala. R.
Evid. See also Ex parte Williamson, 907 So. 2d 407, 416 (Ala.
2004) ("'"It is a generally accepted principle, as set forth
in the Alabama Rules of Evidence, that a party against whom
inadmissible evidence is offered must make a formal, specific
objection." [2] Charles W. Gamble, McElroy's Alabama Evidence
§ 426.01(1) (5th ed. 1996) (citing Rule 103(a), Ala. R.
Evid.). The objection must also be timely. See Rule 103(a),
Ala.R.Evid.; General Motors Corp. v. Johnston, 592 So. 2d
1054, 1057-58 (Ala. 1992).'" (quoting Radford v. State, 783
So. 2d 13, 15 (Ala. 2000))). In order for Baldwin's objection
to have been timely, it has to have been "'raised at the point
1060475; 1060545
16
during trial when the offering of improper evidence is
clear.'" HealthTrust, Inc. v. Cantrell, 689 So. 2d 822, 827
(Ala. 1997) (quoting Charles W. Gamble, McElroy's Alabama
Evidence § 426.01(3) (5th ed. 1996)).
Baldwin argues that it made a timely objection when the
evidence was introduced. Baldwin's reply brief at 6.
Fairhope, on the other hand, argues that Baldwin failed to
object in a timely manner. Fairhope's brief at 40. The
record supports Fairhope's argument.
During Fairhope's cross-examination of Baldwin's first
witness, John Larson, at one time a supervisor of engineering
and engineering services for Baldwin, the following colloquy
occurred, without objection:
"Q. Now, you had a number of discussions, did you
not, over the years with Mr. Aaron Norris [of the
City
of
Fairhope]
here
concerning
electric
territories and who was going to serve particular
subdivisions and who was going to serve particular
customers as they came up, did you not?
"A. We have had multiple conversations, yes.
"Q. And Mr. Norris in those multiple conversations
on this subject told you consistently, did he not,
that the city of Fairhope was going to serve
subdivisions and customers within its city limits,
based on an agreement that had been entered into
between Baldwin EMC and Fairhope, correct?
1060475; 1060545
17
"A. I've heard Mr. Norris mention that there was an
agreement,
but,
as
far
as
us
discussing
an
agreement, no, I've never discussed an agreement
with Mr. Norris.
"Q. But he told you on these occasions that they
were going to serve these customers based on this
agreement, did he not?
"A. He said he was going to serve this subdivision
because it was in the city limits.
"Q. Because there was an agreement that they could
serve in the city limits?
"A. I don't know if that was in every conversation
or not.
"Q. He told you that on at least some of the
occasions, did he not?
"A. He has mentioned that to me.
"Q. You never objected to that, did you?
"A. No, because I do not know of any agreement.
"Q. You never denied the existence of an agreement
to him, did you?
"A. No, because I didn't discuss it with him.
"....
"Q. In fact, the City of Fairhope sent [Baldwin] a
letter which said that under our agreement we have
no intent to serve any customers off of this line
outside the city limits, didn't they?
"A. I don't know if it was mentioned in there of any
agreement. But it just said that they did not plan
to serve any of our customers. But I don't believe
1060475; 1060545
18
there was any mention of an agreement in that
letter."
On redirect, Baldwin's counsel had the following exchange
with Larson:
"Q. Let me see if this is a fair statement. Did Mr.
Norris ever at any point in time dispute the fact
that if you go by the closer-to rules, the
territory, the premises that we are arguing about,
are in [Baldwin's] service territory? Did he ever
dispute that?
"A. Not that I remember.
"Q. What Mr. Norris said was that he felt like the
City had a right to serve it under some preexisting
oral agreement?
"A. That's what I understand. That's correct.
"Q. If it's in the city limits, the City can serve
it, regardless of what [the Act] said?
"A. That's correct.
"Q. Did he ever produce for you any sort of
agreement to that effect?
"A. No, he did not.
"Q. Have you ever seen any acknowledgment of an
agreement to that effect in [Baldwin's] files?
"A. No, I have not."
From these exchanges it is clear that Baldwin not only failed
to object to the introduction of evidence concerning the oral
1060475; 1060545
19
agreement, but also elicited evidence concerning it. It does
not appear that Baldwin objected to Fairhope's admission of
evidence
concerning
the
alleged
oral
agreement
until
Fairhope's direct examination of Jim Nix, a former mayor of
Fairhope, in which the following occurred:
"Q. Was there ever any concern expressed to you by
Baldwin about the fact that City of Fairhope might
be going outside its city limits to pick up electric
customers?
"A. Well, they didn't like it.
"Q. Didn't like it. Was there anything said to you
about that by anybody from Baldwin EMC?
"A. Yes. Don Sutherland, he was the manager at the
time. He talked to me. That's when we worked out an
agreement with him.
"[BALDWIN'S COUNSEL]: We object to any testimony
concerning the agreement for the reasons we argued
to Your Honor this morning.
"THE COURT: Overruled.
"[BALDWIN'S COUNSEL]: We ask that we be given a
standing objection so that we don't need to
repeatedly object.
"THE COURT: You have your objection."
Baldwin argues, without citing any authority, that "it was
unnecessary for [Baldwin] to object to this testimony during
Fairhope's cross-examination of [Baldwin]'s witness (Larson)
because his brief testimony was not substantive evidence that
1060475; 1060545
20
the parties had entered into an agreement nor did it address
in any way the contents of the claimed agreement." Baldwin's
reply brief at 7. Baldwin's argument is unpersuasive.
Larson's testimony, as quoted above, appears, in fact, to be
substantive evidence as to the existence of the alleged oral
agreement and, in some measure, the substance of it. This was
the exact type of evidence Baldwin sought to exclude with its
motion in limine. See Baldwin's motion in limine ("[Baldwin]
seeks the issuance of an order precluding the parties from
making any reference to or submitting any evidence concerning
the oral service territory agreement which Fairhope contends
that it entered into with [Baldwin]." (emphasis added)).
It is clear from the second question that Fairhope asked
during its cross-examination of Larson that Fairhope was
attempting to introduce the testimony Baldwin alleged was
improper. Baldwin was required to object at that time, and it
did not. HealthTrust, 689 So. 2d at 827. It was not until
the third witness of the day, who was the second witness to
give testimony regarding the alleged oral agreement, testified
that Baldwin objected. Therefore, Baldwin failed to timely
object to the introduction of the evidence of the alleged oral
agreement, and Baldwin's failure to timely object to this
1060475; 1060545
Baldwin's objection also appears untimely because it was
11
made after the witness, Jim Nix, answered Fairhope's question.
See Housing Auth. of Decatur v. Decatur Land Co., 258 Ala.
607, 612, 64 So. 2d 594, 597 (1953) ("At the outset it is well
to take notice of the recognized rule that timely objection to
a question is necessary and the point is not preserved if the
objector speculates on the answer and waits until after the
answer to reserve an exception to the ruling."); Allison v.
Owens, 248 Ala. 412, 415, 27 So. 2d 785, 787 (1946) ("An
objection not made until after a responsive answer by the
witness comes too late for the defendant to be entitled to
review of the matter here."). If Baldwin was unable to object
before the witness answered, a motion to strike or to exclude
the question and answer should have accompanied its belated
objection. Crowne Invs., Inc. v. Reid, 740 So. 2d 400, 408
(Ala. 1999) ("If the witness's answer came too quickly for
Crowne to object, then Crowne's proper remedy would have been
to make the belated objection and to make a companion motion
to strike or exclude the question and answer."(citing Green v.
Standard Fire Ins. Co. of Alabama, 398 So. 2d 671 (Ala.
1981))).
21
evidence, alone, is sufficient to preclude appellate review of
this issue.
See Davis v. Southland Corp., 465 So. 2d 397,
11
402 (Ala. 1985) ("Timely objection is a condition precedent to
raising an error on appeal. Where a timely objection to the
admission of evidence is not made, the party wishing to
exclude the evidence cannot be heard to complain." (citing
Sanford v. Sanford, 355 So. 2d 365 (Ala. 1978))). See also
Alabama Power Co. v. Henderson, 342 So. 2d 323, 327 (Ala.
1976) ("Since there was no timely objection by counsel, there
is no error for this court to review." (citing Prescott v.
1060475; 1060545
22
Martin, 331 So. 2d 240 (Ala. 1976); Johnson v. State, 272 Ala.
633, 133 So. 2d 53 (1961); and Anderson v. State, 209 Ala. 36,
95 So. 171 (1922))).
The earlier recited testimony of Larson also supports
Fairhope's
second
argument that Baldwin cannot allege
prejudice, even if the trial court's ruling on the evidence
was erroneous. Baldwin, by eliciting testimony about the
oral service-territory agreement on redirect examination and
by failing to object to Fairhope's cross-examination of
Larson, cannot now claim to have been prejudiced by similar
evidence later admitted over its objection. See B & M Homes,
Inc. v. Hogan, 376 So. 2d 667, 673 (Ala. 1979) ("Even if it be
conceded the testimony was inadmissible, ... we find its
admission was harmless error because other testimony of the
same substance had previously been admitted without objection
or motion to exclude. In Alabama the rule is that prejudicial
error may not be predicated upon the admission of evidence
which has been admitted at some other stage of the trial
without objection or motion to exclude." (citing Coker v.
Ryder Truck Lines, 287 Ala. 150, 249 So. 2d 810 (1971); Turner
v. Blanton, 277 Ala. 536, 173 So. 2d 80 (1965); and Loftin's
Rent-All, Inc. v. Universal Petroleum, 344 So. 2d 781 (Ala.
1060475; 1060545
23
Civ. App. 1977))). See also Hall v. Polk, 363 So. 2d 300, 303
(Ala. 1978) ("Even if the admission of a hearsay statement is
technical error, the error is rendered harmless by other
evidence to the same effect received without objection.");
Chrisman v. Brooks, 291 Ala. 237, 242, 279 So. 2d 500, 505
(1973) ("Prejudicial error may not be predicated upon
admission of evidence which has been admitted without
objection or motion to exclude at some other stage of the
trial."). If Baldwin cannot assert prejudice, the error, if
any, is harmless, and Baldwin's argument that the trial
court's judgment should be reversed is without merit. Rule
103(a)(1), Ala. R. Evid. See also, Rule 45, Ala. R. App. P.
("No judgment may be reversed or set aside, nor new trial
granted ... 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.").
Finally, even assuming that Baldwin could allege that it
was prejudiced by the admission of the evidence, it does not
1060475; 1060545
Baldwin appears to briefly address this argument for the
12
first time in its reply brief. It concludes, without any
citation to authority or further analysis, that "[m]ost
certainly, [the] allowance of evidence of an agreement which
violated the laws of Alabama injuriously affected substantial
rights of [Baldwin]." Baldwin's reply brief at 17. Arguments
made for the first time in a reply brief are not properly
before this Court. See The Dunes of GP, L.L.C. v. Bradford,
966 So. 2d 925, 929 (Ala. 2007) (stating the "settled rule
that this Court does not address issues raised for the first
time in a reply brief" (citing Byrd v. Lamar, 846 So. 2d 334,
341 (Ala. 2002))).
24
appear that Baldwin has effectively made that argument.
The
12
burden is on Baldwin to do so. See Middleton, 885 So. 2d at
113-14 ("'The burden of establishing that an erroneous ruling
was prejudicial is on the appellant.'" (quoting Preferred
Risk, 589 So. 2d at 167 (citations omitted))). First, the
word "prejudice" appears only once in Baldwin's brief, and
that is in connection with Baldwin's second argument.
Baldwin's brief at 38. Second, Baldwin's only allegation of
prejudice on this issue is its naked assertion that "[t]he
effect of the [trial court's] ruling was to permit the jury to
return a verdict sanctioning an arrangement which violated the
law." Baldwin's brief at 23. However, Baldwin later
acknowledges in its reply brief that "[t]his Court can draw no
conclusion as to the basis for the jury's determination since
only a general verdict was returned." Baldwin's reply brief
1060475; 1060545
25
at 16. Therefore, Baldwin has not met its burden of proving
prejudice.
Because Baldwin has not preserved for appellate review
its objection to the testimony regarding the existence of an
oral agreement and because Baldwin has not, and, in fact,
cannot, demonstrate that it was prejudiced by the trial
court's evidentiary ruling, we affirm the judgment of the
trial court on this issue.
II. Jury-Instruction Issue
Baldwin argues that the trial court committed reversible
error when it refused to give Baldwin's requested jury
instruction
on
the
statutory
requirements
that
govern
contracts entered into by municipalities, as well as a
requested jury instruction on the statutory requirements that
govern the contracts into which Baldwin enters. Fairhope
argues that the trial court did not err because, it argues,
Baldwin's requested jury instructions went to an affirmative
defense that was not pleaded.
A. Standard of Review
"'"[A]n incorrect or misleading charge may be the basis
for the granting of a new trial."'" George H. Lanier Mem'l
Hosp. v. Andrews, 809 So. 2d 802, 806 (Ala. 2001) (quoting
1060475; 1060545
The record reflects that Baldwin's objection to the
13
trial court's failure to give its requested jury instructions
took the following form:
"We respectfully except to Your Honor's refusal to
give the two additional charges that were presented
earlier today. The first charge, it's not numbered,
but it is the charge that states that contracts
entered into by municipalities shall be in writing,
signed and executed in the name of the proper
officer. It's quoted from section 11-47-5 of the
[Alabama] Code [1975].
"....
"The other charge is a similar charge that relates
to contracts executed by Co-ops, and it is a
quotation from § 37-6-313 of the [Alabama] Code
[1975]."
It appears that Baldwin's objection is insufficient to
preserve this issue for appeal. See Burnett v. Martin, 405
So. 2d 23, 28 (Ala. 1981)("[T]he objection must be made
specifically and must be supported by grounds in order for
review to be had in the appellate court."); Alabama Dep't of
Transp. v. Land Energy, Ltd., 886 So. 2d 787, 796 (Ala. 2004)
("A general objection to the giving of, or the refusal to
give, a jury instruction, not accompanied by an adequate
26
King v. W.A. Brown & Sons, Inc., 585 So. 2d 10, 12 (Ala. 1991)
(citation omitted)). "When an objection to a jury charge has
been properly preserved for review on appeal, ... we '"look to
the entirety of the [jury] charge to see if there was
reversible error,"' and reversal is warranted only if the
error is prejudicial." George H. Lanier Mem'l Hosp., 809 So.
2d at 807 (quoting King, 585 So. 2d at 12).
13
1060475; 1060545
explanation of the thrust of the ground, is insufficient to
preserve any error associated with the giving, or refusal, of
the charge.") citing Vaughan v. Oliver, 822 So. 2d 1163 (Ala.
2001); Waites v. Malone, 658 So. 2d 396 (Ala. 1995); and Alfa
Mut. Ins. Co. v. Northington, 561 So. 2d 1041 (Ala. 1990))).
The applicable portion of § 11-47-5 states:
14
"Contracts entered into by a municipality shall
be in writing, signed and executed in the name of
the city or town by the officers authorized to make
the same and by the party contracting. In cases not
otherwise directed by law or ordinance, such
contracts shall be entered into and executed by the
mayor in the name of the city or town and all
27
B. Statutory Requirements for Contracts Entered into by
Municipalities and by Baldwin
On the last day of trial, Baldwin moved the trial court
"to exclude all of the testimony from all witnesses on the
issue of the alleged oral agreement between Fairhope and
Baldwin" and electronically filed an "Answer to Counterclaim,"
in which Baldwin asserted three "Affirmative Defenses" to
Fairhope's claim that an oral service-territory agreement
existed between the parties. The basis of both Baldwin's
motion and its answer was, according to Baldwin, that all
evidence of the alleged oral agreement should be excluded and
that Fairhope's oral-agreement claims were barred because
contracts entered into by municipalities, such as Fairhope,
must be in writing, as required by § 11-47-5, Ala. Code 1975,14
1060475; 1060545
obligations for the payment of money by the
municipality, except for bonds and interest coupons,
shall be attested by the clerk."
The relevant portion of § 37-6-3(13) states:
15
"A cooperative shall have the power:
"....
"(13) To make any and all contracts
necessary or convenient for the full
purpose of the powers in this chapter
granted ... and in connection with any such
contract to stipulate and agree to such
covenants, terms and conditions as the
board of trustees may deem appropriate
...."
Baldwin also asserted that the Statute of Frauds
16
required that any contract between Fairhope and Baldwin
allocating electric-service territories be in writing. § 8-9-
2, Ala. Code 1975. However, Baldwin does not appear to have
asked for a jury instruction on this argument, nor does it
appear that Baldwin argues that this is a basis on which the
trial court erred.
28
and that according to § 37-6-3(13), Ala. Code 1975, contracts
entered into by Baldwin must be approved by its board of
trustees.
The trial court denied Baldwin's motion. Baldwin
15
subsequently submitted requested jury instructions that
contained, verbatim, the language of the statutes on which
Baldwin's argument relies; the trial court refused to give
those instructions.16
1060475; 1060545
The pertinent portion of Rule 8(c) states:
17
"In pleading to a preceding pleading, a party shall
set forth affirmatively ... statute of frauds ...
and any other matter constituting an avoidance or
affirmative defense."
29
Baldwin now argues that it was prejudicial error for the
trial court to refuse to give Baldwin's requested jury
instructions on those statutes. Baldwin contends that the
jury should have been instructed that "Alabama law mandates
that contracts of municipalities be in writing, executed by
the proper city official and by the other contracting party,
and that Alabama law also addresses the role of [Baldwin]'s
Board of Trustees in approving contracts to which [Baldwin] is
a party." Baldwin's brief at 37. Baldwin argues that this
error was further compounded by an instruction that the trial
court did give, which stated that "there is no rule of law
that all contracts must be in writing." Baldwin's brief at
37.
Fairhope argues, however, that "Baldwin's failure to even
mention its defenses based on these statutes prior to the last
day of trial justified the trial court's refusal of the
proposed jury charges." Fairhope's brief at 61. Relying on
Rule 8(c), Ala. R. Civ. P.,
Fairhope contends that Baldwin's
17
1060475; 1060545
30
jury charges "related to two unpleaded affirmative defenses to
the counterclaim asserted by Fairhope. These defenses should
have been raised in a responsive pleading before trial, not in
a motion to strike in the middle of trial and in jury charges
offered at the end of trial." Fairhope's brief at 62.
Fairhope argues that Baldwin waived these defenses by failing
to appropriately and timely plead them in its answer to
Fairhope's counterclaim. Fairhope's brief at 62. We agree.
"The rule is that a party is entitled to have his theory
of the case, made by the pleadings and issues, presented to
the jury by the proper instructions." Alabama Farm Bureau
Mut. Ins. Serv., Inc. v. Jericho Plantation, Inc., 481 So. 2d
343, 344 (Ala. 1985) (citing State Farm Mut. Auto. Ins. Co. v.
Dodd, 276 Ala. 410, 162 So. 2d 621 (1964)). Baldwin argues,
without citation to authority, that it "had no obligation to
plead in its Complaint the statutes which require city
contracts to be in writing. This was an evidentiary issue."
Baldwin's reply brief at 12. First, these claims appear
substantive, rather than evidentiary, because they go directly
to the existence and validity of the alleged oral agreement.
Moreover, the three claims appear, in fact, to be affirmative
defenses. See Lloyd Noland Found., Inc. v. HealthSouth Corp.,
1060475; 1060545
31
[Ms. 1041121, August 24, 2007] ___ So. 2d ___ (Ala. 2007) ("An
affirmative defense is '[a] defendant's assertion of facts and
arguments that, if true, will defeat the plaintiff's or
prosecution's claim, even if all the allegations in the
complaint are true.'" (quoting Black's Law Dictionary 451 (8th
ed. 2004)). See also Rule 8(c), Ala. R. Civ. P. ("In pleading
to a preceding pleading, a party shall set forth affirmatively
... statute of frauds ... and any other matter constituting an
avoidance or affirmative defense."). Certainly, all three of
the claimed defenses -- the Statute of Frauds; § 11-47-5, Ala.
Code 1975; and § 37-6-3(13), Ala. Code 1975 -- would defeat
Fairhope's claim that the Act unconstitutionally impaired the
contract between the parties because these statutes frustrate
Fairhope's claim of the existence or validity of the alleged
oral service-territory agreement.
The record supports Fairhope's claim that Baldwin did not
answer Fairhope's counterclaim or address either of these
statutes or defenses until the last day of the trial, which
was 13 years after the original pleadings and 3 years after
Fairhope last asserted its counterclaims. Baldwin's answer,
which was filed without leave of court, was untimely. See
Rule 12(a), Ala. R. Civ. P. ("A party served with a pleading
1060475; 1060545
32
stating a cross-claim against that party shall serve an answer
thereto within thirty (30) days after the service upon that
party. The plaintiff shall serve a reply to a counterclaim in
the answer within thirty (30) days after service of the answer
or, if a reply is ordered by the court, within thirty (30)
days after service of the order, unless the order otherwise
directs."); Rule 15, Ala. R. Civ. P. ("Unless a court has
ordered otherwise, a party may amend a pleading without leave
of court, but subject to disallowance on the court's own
motion or a motion to strike of an adverse party, at any time
more than forty-two (42) days before the first setting of the
case for trial, and such amendment shall be freely allowed
when justice so requires. Thereafter, a party may amend a
pleading only by leave of court, and leave shall be given only
upon a showing of good cause.").
Therefore, Baldwin's affirmative defenses, asserted in
its untimely pleading, are waived. Rule 8(c), Ala. R. Civ. P.
See also McCrary v. Butler, 540 So. 2d 736, 740 (Ala.
1989)("Failure to affirmatively set forth a defense required
to be affirmatively pleaded constitutes a waiver of the
1060475; 1060545
There are exceptions to this general rule. See Bechtel
18
v. Crown Cent. Petroleum Corp., 451 So. 2d 793, 796 (Ala.
1984)("'If an affirmative defense is not pleaded it is waived
to the extent that the party who should have pleaded the
affirmative defense may not introduce evidence in support
thereof, unless the adverse party makes no objection in which
case the issues are enlarged, or unless an amendment to set
forth the affirmative defense is properly made.'" (quoting 2A
J. Moore, Federal Practice § 8.27[3] at 8-251 (2d ed. 1948))).
There is no indication, and Baldwin does not argue, that
either of these exceptions is applicable in this case.
Baldwin has not introduced evidence showing that the law
required the agreement to be in writing and signed by the
mayor or that Baldwin's board of trustees was required, by
law, to approve all Baldwin's contracts. Although it may be
true that both the mayor of Fairhope and the general manager
of Baldwin testified as to how contracts were customarily
entered into by Fairhope and Baldwin, respectively, there does
not appear to be testimony or other evidence as to what the
law required of either party. Nor does it appear that
Baldwin's eventual answer to Fairhope's counterclaims was
properly made. See Rule 15, Ala. R. Civ. P., and Rule 12(b),
Ala. R. Civ. P.
Additionally, the trial court's instruction that "there
19
is no rule of law that all contracts must be in writing" does
not appear to be an error. See Jenelle Mims Marsh and Charles
W. Gamble, Alabama Law of Damages § 17-11 n.1 (5th ed. 2004)
("The party suing on an oral contract may have the jury
charged that 'there is no rule of law that all contracts be in
33
defense." (citing Hayes v. Payne, 523 So. 2d 333 (Ala.
1987))).
18
Because Baldwin's claims were not properly before the
trial court, the trial court did not err by refusing to give
the two instructions Baldwin requested on Baldwin's untimely
defenses.19
1060475; 1060545
writing and oral contracts are valid and enforceable just as
written contracts when all elements of a contract exist.'"
(quoting Alabama Pattern Jury Instructions—Civil No. 10.09 (2d
ed.))).
34
Conclusion
Because we hold that the trial court did not commit
reversible error with regard to admitting evidence of the oral
service-territory agreement between the parties or refusing to
give Baldwin's requested jury instructions, we affirm the
decision of the trial court. Because we affirm the decision
of the trial court, we need not address Baldwin's request to
set aside the fee award. Fairhope's cross-appeal regarding
the trial court's alleged error in refusing to grant
Fairhope's request for a judgment as a matter of law is
rendered moot by our decision on Baldwin's appeal.
1060475 -- AFFIRMED
1060545 -- APPEAL DISMISSED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | June 13, 2008 |
ae220540-d436-4eb9-b289-3de2df3222f8 | Ex parte Roy Burgess, Jr. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Roy Burgess, Jr. v. State of Alabama) | N/A | 1070635 | 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
_________________________
1070635
_________________________
Ex parte Roy Burgess, Jr.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Roy Burgess, Jr.
v.
State of Alabama)
(Morgan Circuit Court, CC-93-1270.60;
Court of Criminal Appeals, CR-05-0421)
LYONS, Justice.
Roy Burgess, Jr., petitioned this Court for a writ of
certiorari to review whether the Court of Criminal Appeals
1070635
2
erred in affirming the Morgan Circuit Court's denial of his
Rule 32, Ala. R. Crim. P., petition for postconviction relief.
We issued the writ of certiorari to review only whether
Burgess's claims of juror misconduct, arising from the alleged
failure of several jurors to accurately answer questions
during the voir dire examination, are precluded under Rule
32.2(a)(3) and (5), Ala. R. Crim. P. For the reasons
discussed below, we hold that the claims are not precluded,
and we reverse the judgment of the Court of Criminal Appeals
and remand the case.
I. Facts and Procedural History
Burgess was convicted of capital murder and was sentenced
to death in 1994. See § 13A-5-40(a)(2), Ala. Code 1975. On
direct appeal, the Court of Criminal Appeals affirmed
Burgess's conviction and sentence. Burgess v. State, 811 So.
2d 557 (Ala. Crim. App. 1998). This Court affirmed Burgess's
conviction, reversed his death sentence, and remanded the
cause to the Court of Criminal Appeals with instructions for
that court to remand the cause to the trial court for
resentencing. Ex parte Burgess, 811 So. 2d 617 (Ala. 2000).
1070635
3
In accordance with this Court's instructions, the Court
of Criminal Appeals remanded the cause to the trial court for
that court to reevaluate Burgess's sentence. Burgess v.
State, 811 So. 2d 633 (Ala. Crim. App. 2000). On remand, the
trial court resentenced Burgess to life imprisonment without
the possibility of parole; the Court of Criminal Appeals
affirmed that sentence. Burgess v. State, 811 So. 2d 633
(Ala. Crim. App. 2001) (opinion on return to remand).
Burgess first filed a Rule 32 petition for postconviction
relief in July 2002. He then amended the petition in January
2003 and again in November 2004. Claim 13 of the petition, as
last amended, asserted that "[Burgess's] right to [an]
impartial jury was violated by jurors' consideration of
extraneous evidence and failure to accurately answer voir dire
questions." Burgess supported this claim as follows:
"110. ... Juror T.B. failed to disclose that he
knew one of the State's witnesses, Angela Casey, and
that he had a family member who worked in law
enforcement, as a military policeman and later in a
sheriff's department in North Carolina. Juror L.T.
failed to disclose that she knew a number of police
officers. A very close friend whom L.T. refers to
as her 'granddaughter' worked for the police
department at the time of trial, yet L.T. did not
reveal this information during voir dire.
1070635
Both the victim and the defendant had attended Austin
1
High School.
4
"111. Juror D.C. failed to reveal that he had
been the victim of a crime in 1985. He further
failed to tell the court that he testified for his
Lieutenant in court martial proceedings while he was
in the Army. Juror L.T. failed to disclose that she
had been a victim of crime when her business was
burglarized. Juror B.W. failed to disclose that she
was the victim of a burglary. Juror R.W. also
failed to reveal that she was the victim of a crime.
Juror T.W. did not reveal that his aunt had been
raped and severely beaten.
"112. Juror F.D. failed to tell the court that
she had children who had attended Austin High
School.
Of the two veniremembers who disclosed
[1]
that they had a child or grandchild who attended
Austin High School, one was removed for cause on a
defense motion and one was peremptorily struck by
the defense.
"113. Juror C.H. failed to disclose that she
had a personal relationship with the district
attorney and that he had assisted her in a personal
matter before the trial. Although [Burgess's]
Motion to require the district attorney to disclose
past or present associations or relationships with
prospective
jurors
was
granted,
the
district
attorney did not reveal that he had met privately
with C.H. and helped her to resolve a personal
matter. Veniremembers who disclosed even remote
associations with the district attorney or members
of his family were not seated on the jury."
(Citations to the record omitted.)
The trial court summarily dismissed Burgess's Rule 32
petition. In its order, the trial court found that the claims
1070635
5
of juror misconduct were precluded from review under Rule
32.2(a)(3) and (5), Ala. R. Crim. P., because the claims were
not raised on appeal or in Burgess's motion for a new trial.
Rule 32.2, Ala. R. Crim. P., "Preclusion of Remedy," provides:
"(a) Preclusion of Grounds. A petitioner will
not be given relief under this rule based upon any
ground:
"....
"(3) Which could have been but was not
raised at trial, unless the ground for
relief arises under Rule 32.1(b); or
"....
"(5) Which could have been but was not
raised on appeal, unless the ground for
relief arises under Rule 32.1(b)."
The trial court further found that "Burgess has presented no
evidence to support the allegations contained in his petition
for relief pursuant to Rule 32, A[la]. R. Crim. P." Burgess
appealed the order dismissing his Rule 32 petition to the
Court of Criminal Appeals.
The Court of Criminal Appeals remanded the cause to the
trial court for a determination of "the factual basis of
Burgess's allegations that several jurors failed to fully
respond to voir dire questions and to determine when and how
1070635
6
Burgess discovered the basis of these claims, and if the
claims could have been raised by newly appointed counsel in
Burgess's motion for a new trial." Burgess v. State, [Ms. CR-
05-0421, Sept. 29, 2006] ___ So. 2d ___ (Ala. Crim. App.
2006).
The State sent the trial court a copy of its brief on
direct appeal and a letter explaining its position on remand.
The trial court then ordered Burgess to file the following:
"1. Copy of [Burgess's] brief on appeal of his
original
conviction
specifically
including
all
issues raised on appeal;
"2. Statement(s)
setting
forth
with
specificity
the factual basis of [Burgess's] allegations that
several jurors failed to fully respond to voir dire
questions; and
"3. Statement(s)
setting
forth
with
specificity
when and how [Burgess] and/or his counsel discovered
the basis of [Burgess's] allegations that several
jurors failed to fully respond to voir dire
questions."
In response to the trial court's order for statements
"setting forth with specificity the factual basis of
[Burgess's]
allegations"
of
juror
misconduct,
Burgess
proffered the following as facts:
"1. Juror D.C. was a victim of a crime. His car
was vandalized and the top was cut off in Decatur.
1070635
7
He once testified for his Lieutenant who was charged
in a court martial.
"2. Juror R.W. was a victim of crime when her
car was vandalized while she was at work.
"3. Juror L.T. was a victim of crime when
someone broke into her dry cleaning store before
trial. The police came and said that the thief must
have had a key. She got up on a ladder and saw that
the burglar got in through the top of the building.
She suspected the husband of one of her customers.
"4. Juror L.T. knew a lot of people in law
enforcement because as a dry cleaner she did some
Decatur Police Department officers' clothes and
uniforms. She has a very close friend--whom she
calls her granddaughter--who was in the police
department for a long time and was working in law
enforcement at the time of trial.
"5. Juror L.T.'s grandson attended Austin High
School before 1994.
"6. Juror T.B. had a cousin who was a military
policeman in the Army and then in the sheriff's
department in North Carolina. He knew Angela Casey
[one of the State's witnesses] at the time of the
trial because her younger brother and his son played
baseball together.
"7. Juror C.H. knew district attorney Bob
Burrell. She had been to his office to talk to him
about a personal matter. After the trial, she
received a letter from Bob Burrell, thanking her for
being on the jury."
Burgess supported this proffer with affidavits from John Mays,
an attorney who had represented Burgess during the trial, and
1070635
8
three jurors. In his affidavit, Mays stated that before the
trial
"the defense filed a motion to require the district
attorney [Bob Burrell] to disclose past or present
associations
or
relationships
with
prospective
jurors, and our motion was granted. Had prospective
juror C.H. disclosed during voir dire that she had
a personal relationship with the district attorney
and that he had assisted her in a personal matter
before the trial, I would have challenged her for
cause or exercised a peremptory strike to excuse her
from the jury."
In response to the trial court's order for statements
"setting forth with specificity when and how [Burgess] and/or
his counsel discovered the basis of [Burgess's] allegations
that several jurors failed to fully respond to voir dire
questions," Burgess's attorney in his Rule 32 proceeding
stated that the "failure-to-disclose claims were discovered by
undersigned counsel in a postconviction investigation."
Burgess's attorney then asserted that Burgess's "claims were
not raised at trial or on direct appeal because counsel had no
information that such misconduct had occurred and therefore
was under no obligation to raise the claims."
The trial court did not hold an evidentiary hearing.
Based upon the submissions from Burgess and the State, the
trial court entered an order on remand from the Court of
1070635
Ground 14 asserted that "the State withheld favorable
2
evidence from the defense[,] thus violating [Burgess's]
federal and state rights."
9
Criminal Appeals summarily denying Burgess's Rule 32 petition.
That order states, in pertinent part:
"In response [to the Court of Criminal Appeals'
remand order], [Burgess] details the assertions of
juror misconduct claims in Grounds 13 and 14
of
[2]
his Rule 32 petition as twice amended. [Burgess]
claims the information of alleged juror misconduct
was discovered as a result of [a] postconviction
relief investigation.
"The Court finds that the information obtained
from the jurors was available to newly appointed
appellate counsel and could have been raised in
[Burgess's] Motion for New Trial. All counsel had
to do was to interview the jurors in post-trial
interviews just as was done by [Burgess's] counsel
herein. Notwithstanding [Burgess's] claims of
misconduct, none of the jurors state the outcome of
deliberations would have been different or that they
were wrongly influenced in their decisions and
deliberations."
On return to remand, the Court of Criminal Appeals, in an
unpublished memorandum, affirmed the trial court's order
denying Burgess's Rule 32 petition. Burgess v. State (No. CR-
05-0421, Dec. 14, 2007). As to the claims of juror
misconduct, that court held:
"With regard to [Burgess's] 'juror misconduct'
claims, the trial court was correct in finding that
the aforestated claims [arising from the jurors'
alleged failure to answer questions accurately
1070635
10
during voir dire] were procedurally barred from
review, because they could have been presented in
[Burgess's] motion for new trial. Rule 32.2(a)(3),
Ala. R. Crim. P. Additionally, the remaining claims
of juror misconduct are bare allegations unsupported
by facts; this includes [Burgess's] assertion that
certain
jury
members
engaged
in
improper
deliberations
when
they
positioned
chairs
to
approximate where the parties were seated in the car
when [Burgess] shot the victim, and his assertion
that the jury wrongly considered religious material
in the victim's car, as well as praying and
considering Bible passages. Therefore, the trial
court was correct in finding that [Burgess] had
failed to meet the necessary burden of pleading.
Rule 32.2, Ala. R. Crim. P."
Burgess then petitioned this Court for certiorari review
of the decision of the Court of Criminal Appeals. We granted
the petition to determine whether the decision of the Court of
Criminal Appeals in this case conflicts with Ex parte Pierce,
851 So. 2d 606 (Ala. 2000), Ex parte Dobyne, 805 So. 2d 763
(Ala. 2001), and DeBruce v. State, 890 So. 2d 1068 (Ala. Crim.
App. 2003).
II. Standard of Review
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)).
III. Analysis
1070635
As previously noted, this Court reversed Burgess's death
3
sentence on original appeal. See Burgess, 811 So. 2d at 617.
On remand, the trial court resentenced Burgess to life
imprisonment without the possibility of parole, and the Court
of Criminal Appeals affirmed that sentence. See Burgess, 811
So. 2d at 633.
11
The dispositive issue before us is whether the Court of
Criminal Appeals correctly held that Burgess's claims that
several jurors failed to answer accurately questions during
the voir dire examination are precluded by Rule 32.2(a)(3) and
(5), Ala. R. Crim. P., because Burgess raised these claims for
the first time in a Rule 32 petition for postconviction
relief. In Ex parte Pierce, this Court held that a claim of
juror misconduct raised in a postconviction petition shall not
be treated as a claim of newly discovered evidence under Rule
32.1(e), Ala. R. Crim. P. Rule 32.1(e) requires that the
newly discovered evidence prove that the defendant is innocent
of the crime for which he or she was convicted or that the
defendant should not have received the sentence he or she
received. This Court recognized that requiring a petitioner
to satisfy all the elements of the first prong, and the one
with which we are concerned here, "create[s] a nearly
3
impossible standard" that resulted in juror-misconduct claims
rarely being raised in Rule 32 petitions. Ex parte Pierce,
1070635
12
851 So. 2d at 614. This Court held that a claim of juror
misconduct shall be treated as a "constitutional violation
that would require a new trial" under Rule 32.1(a). Ex parte
Pierce, 851 So. 2d at 612. "To be entitled to that relief,
however, [the petitioner] must avoid the preclusive effect of
Rule 32.2(a)(3) and (5); those provisions bar a defendant from
presenting in a Rule 32 postconviction petition a claim that
could have been raised at trial or on direct appeal." Ex
parte Pierce, 851 So. 2d at 612.
Burgess contends that the Court of Criminal Appeals erred
in affirming the trial court's judgment holding that his
juror-misconduct claims are precluded because he raised these
claims for the first time in a Rule 32 petition. Burgess
argues that, under Alabama law, a claim of juror misconduct is
cognizable in a Rule 32 petition when the juror misconduct was
not known to trial or appellate counsel and was not apparent
from the record. Burgess asserts that he properly raised his
claims of juror misconduct in a Rule 32 petition because, he
says, neither he nor his counsel was aware of the alleged
juror
misconduct
until
postconviction
proceedings,
and
nothing
occurred during the trial or appears in the record that could
1070635
13
have alerted him or his counsel to the jurors' nondisclosure
of information. Burgess also contends that nothing in the law
requires a defendant to investigate jurors and that he was not
afforded
any
funds
or
resources
to
conduct
such
an
investigation.
Burgess cites Ex parte Pierce and DeBruce to support his
contention that this Court and the Court of Criminal Appeals
have long held that a juror-misconduct claim is cognizable in
a Rule 32 petition when evidence of juror misconduct is not
apparent from the record and the evidence was discovered
during postconviction interviews. In Ex parte Pierce, this
Court held that "[b]ased on the Court of Criminal Appeals'
opinion in [State v.] Freeman, [605 So. 2d 1258 (Ala. Crim.
App. 1992)], Pierce's claim [of juror misconduct] was
cognizable [in a Rule 32 petition] as long as he established
that the information was not known, and could not reasonably
have been discovered, at trial or in time to raise the issue
in a motion for new trial or on appeal." 851 So. 2d at 616.
This Court remanded the case "for the Court of Criminal
Appeals to remand to the trial court for an evidentiary
hearing on the question whether Pierce's claim could have been
1070635
14
raised at trial or on appeal and is thus barred pursuant to
Rule 32.2(a)(3) and (a)(5)." 851 So. 2d at 617. On remand,
the trial court found that Pierce's counsel knew or should
have known about the juror misconduct during the trial. 851
So. 2d at 620. On return to remand, this Court then held that
Pierce's juror-misconduct claim was procedurally barred by
Rule 32.2(a)(3) or (a)(5) because the claim could have been
raised at trial or on appeal. 851 So. 2d at 620.
In State v. Freeman, 605 So. 2d 1258 (Ala. Crim. App.
1992), the Court of Criminal Appeals held that a claim of
juror misconduct was cognizable in a Rule 32 petition although
the petitioner, Darryl Eugene Freeman, had not raised the
claim during the trial or on direct appeal. 605 So. 2d at
1259. In his Rule 32 petition Freeman claimed that his right
to a fair trial was violated because the foreman of the jury
that convicted him failed to disclose, during the voir dire
examination, that he had been a police officer at one time.
605 So. 2d at 1259. Freeman added this claim to his Rule 32
petition approximately one week before the trial court was
scheduled to hold an evidentiary hearing on the petition. At
the evidentiary hearing Freeman's counsel stated: "'In doing
1070635
Freeman was overruled in part by Brown v. State, 807 So.
4
2d 1 (Ala. Crim. App. 1999). In Brown, the Court of Criminal
Appeals noted that "the Freeman court did not address the
other prerequisites for newly discovered evidence contained in
Rule 32.1(e)." 807 So. 2d at 7. That court went on to hold:
"Before a claim of juror misconduct may be addressed on the
merits in a postconviction petition the petitioner must meet
the requirements for newly discovered evidence contained in
Rule 32.1(e), Ala. R. Crim. P. To the extent that this
holding
conflicts
with
Freeman,
that
case
is
hereby
overruled." 807 So. 2d at 8. However, as noted above, this
Court in Ex parte Pierce later held that claims of juror
misconduct should not be treated as claims of newly discovered
evidence under Rule 32.1(e).
15
routine juror interviews we uncovered this information and
filed the amended petition immediately after that information
was made available to us.'" 605 So. 2d at 1259.
The trial court "granted Freeman's petition, set aside
his conviction and death sentence, and ordered that Freeman be
retried." 605 So. 2d at 1259. The State appealed to the
Court of Criminal Appeals, contending that Freeman's claim of
juror misconduct was precluded by Rule 32.2(a)(3) and (5).
605 So. 2d at 1259. The Court of Criminal Appeals held that
Freeman's claim of juror misconduct "was not procedurally
barred under Rule 32.2(a)(4) [sic] and (5), A[la.] R. Crim.
P., because the fact that the juror had been a policeman was
not known at the time of trial or at the time of direct
appeal." Freeman, 605 So. 2d at 1259.4
1070635
16
In DeBruce, the Court of Criminal Appeals also held that
a claim of juror misconduct was cognizable in a Rule 32
petition although the petitioner, Derrick Anthony DeBruce, had
not raised the claim during the trial or on direct appeal.
890 So. 2d at 1077. In his Rule 32 petition, DeBruce claimed
that he had been denied a fair trial because several jurors
failed to answer questions truthfully during the voir dire
examination. 890 So. 2d at 1076. DeBruce specifically
claimed that when the venire was asked whether anyone had
family members who worked in law enforcement, one juror failed
to disclose that his father was then employed by the Alabama
Department of Corrections and that he had been a police
officer. 890 So. 2d at 1076.
The trial court treated DeBruce's juror-misconduct claims
as claims of newly discovered evidence under Rule 32.1(e) and
found that the claims were procedurally barred because DeBruce
failed to prove that the evidence supporting his claims was
newly discovered. 890 So. 2d at 1077. The trial court also
examined the merits of DeBruce's claims and found that he had
not been prejudiced by the juror misconduct. DeBruce then
1070635
17
appealed the trial court's order denying his Rule 32 petition
to the Court of Criminal Appeals. 890 So. 2d at 1074.
The Court of Criminal Appeals first recognized that under
Ex parte Pierce, the trial court had improperly treated
DeBruce's
juror-misconduct
claims
as
claims
of
newly
discovered evidence under Rule 32.1(e). The Court of Criminal
Appeals then held that a petitioner may assert a claim of
juror misconduct in a Rule 32 petition, but that "the
petitioner must show that the claim is not subject to the
procedural default grounds contained in Rule 32.2(a)(3) and
(a)(5), Ala. R. Crim. P." 890 So. 2d at 1077. That court
noted that the record indicated that "DeBruce's counsel did
not learn of [the juror's] father's law enforcement background
until approximately five years after DeBruce was tried" and
held that "[g]iven the Supreme Court's holdings in Pierce and
1070635
In Ex parte Dobyne, this Court recognized that its prior
5
decision in Ex parte Pierce had held a claim of juror
misconduct may be raised in a Rule 32 petition as a
constitutional violation under Rule 32.1(a). 805 So. 2d at
767-68. However, unlike Ex parte Pierce, in which the trial
court never addressed the merits of Pierce's juror-misconduct
claims, in Ex parte Dobyne "both the trial court and the Court
of Criminal Appeals directly addressed [the merits of]
Dobyne's juror-misconduct claim." 805 So. 2d at 770. Thus,
this Court concluded that "the situation presented in Pierce
is not the situation presented in this case, and our holding
in Pierce does not affect our determination that Dobyne's
claim of juror misconduct was correctly addressed." Ex parte
Dobyne, 805 So. 2d 770.
DeBruce was overruled in part by Ex parte Jenkins, 972
6
So. 2d 159 (Ala. 2005). In Ex parte Jenkins, this Court
overruled DeBruce to the extent that it "applied the relation-
back doctrine to proceedings governed by Rule 32." 972 So. 2d
at 165. This Court reversed the Court of Criminal Appeals'
holding that Jenkins's "juror-misconduct claim presented in
the amended petition would be considered timely only if it
related back to a claim raised in the timely original
petition." Ex parte Jenkins, 972 So. 2d at 161.
Burgess
also
contends
that
the
present
case
is
7
indistinguishable from McGahee v. State, 885 So. 2d 191, 203
(Ala. Crim. App. 2003); however, we did not grant the writ of
18
Dobyne,
the circuit court incorrectly determined that this
[5]
issue was procedurally barred." 890 So. 2d at 1077.6
Burgess
contends
that
the
instant
case
is
indistinguishable from Freeman and DeBruce because, he argues,
his counsel first discovered the factual basis of his claims
of juror misconduct during postconviction interviews with
jurors. Applying this Court's holding in Ex parte Pierce,
7
1070635
certiorari as to his argument concerning McGahee because
Burgess did not properly allege a conflict with it in his
petition for certiorari review.
19
which relied on Freeman, Burgess states that the basis for his
claims of juror misconduct "was not known, and could not
reasonably have been discovered, at trial or in time to raise
the issue in a motion for new trial or on appeal." 851 So. 2d
at 616. Accordingly, Burgess asserts that he properly raised
his juror-misconduct claims in his Rule 32 petition and that
these claims are not procedurally barred by Rule 32.2(a)(3) or
(5).
The State contends that the writ of certiorari should be
quashed as improvidently granted. First, the State contends
that Burgess failed to present a ground authorizing certiorari
review under Rule 39, Ala. R. App. P., because, it says, the
Court of Criminal Appeals' decision complies, and does not
conflict, with DeBruce, Ex parte Pierce, and Ex parte Dobyne
in that that court properly treated Burgess's claims of juror
misconduct as constitutional claims under Rule 32.1(a).
Second, the State contends that the Court of Criminal Appeals
properly affirmed the trial court's order finding that
Burgess's juror-misconduct claims were precluded because, it
1070635
20
says, Burgess failed to show that his claims could not have
been discovered in time to raise them in his motion for a new
trial. Thus, the State contends that the trial court
appropriately exercised its discretion to find that Burgess
had failed to meet his burden of disproving that his juror-
misconduct claims were precluded under Rule 32.2(a)(3) and
(a)(5). Notably, the State omits the word "reasonably" when
applying this Court's holding in Ex parte Pierce that a claim
of juror misconduct is cognizable in a Rule 32 petition when
the alleged misconduct "could not reasonably have been
discovered, at trial or in time to raise the issue in a motion
for new trial or on appeal." 851 So. 2d at 616.
The Court of Criminal Appeals improperly concluded that
Burgess's juror-misconduct claims are precluded by Rule
32.2(a)(3) and (a)(5); Burgess showed, in the trial court,
that he could not have reasonably discovered the alleged juror
misconduct in time to raise the claims in a motion or a new
trial or on appeal. See Ex parte Pierce, 851 So. 2d at 616.
In opposition to the State's motion to dismiss his Rule 32
petition, Burgess asserted that he had "discovered only
recently that during voir dire at his trial, many of the
1070635
21
jurors failed to accurately answer questions." Additionally,
after the Court of Criminal Appeals remanded the cause to the
trial court for a determination of whether the claims of juror
misconduct could have been raised in Burgess's motion for a
new trial, Burgess informed the trial court that his "failure-
to-disclose claims were discovered by undersigned counsel in
[a] postconviction investigation." Burgess's statement in
response to the trial court's order on remand at 7. Burgess
further informed the trial court that the "claims were not
raised at trial or on direct appeal because counsel had no
information that such misconduct had occurred and therefore
was under no obligation to raise the claims." Id. Thus, as
was the case with the petitioner in DeBruce, who first learned
of the juror misconduct five years after his trial and
properly raised claims of juror misconduct in a Rule 32
petition, Burgess first learned of the juror misconduct years
after his trial. See DeBruce, 890 So. 2d at 1077.
Burgess
reasonably
expected
that
potential
jurors
answered accurately the questions posed to them during the
voir dire examination. It is unreasonable to hold that a
defendant must uncover any and all juror misconduct in the
1070635
22
form of inaccurate responses to voir dire examination in time
to raise such claims in a motion for a new trial or on appeal.
Requiring a defendant to raise such claims of juror misconduct
during the interval between the voir dire examination and the
filing of posttrial motions places an impracticable burden on
defendants. In this case, there is no evidence before us
indicating that Burgess suspected or should have suspected
that any jurors did not accurately answer a question during
the voir dire examination. Burgess particularly did not have
any reason to suspect that a juror allegedly had a personal
relationship with the district attorney because before trial
his counsel had moved for the district attorney to disclose
any relationships he had with potential jurors.
The trial court, in finding that Burgess's claims were
procedurally barred by Rule 32.2(a)(3) and (a)(5), found "that
the information obtained from the jurors was available to
newly appointed appellate counsel and could have been raised
in [Burgess's] Motion for New Trial. All counsel had to do
was to interview the jurors in post-trial interviews just as
was done by petitioner's counsel herein." However, it is
unreasonable to require that a defendant, unaware of any
1070635
23
failure to answer correctly questions posed during the voir
dire examination, must contact each juror and ask whether he
or she accurately and truthfully answered such questions.
Jury service is sufficiently disruptive of a citizen's regular
activities without this Court announcing a rule that would
routinely subject jurors to potentially insulting postverdict
interrogation concerning their veracity. Absent any evidence
that a telephone call to some or all the jurors would have
been nothing more than a mere fishing expedition, we cannot
hold on this record that Burgess's claims are precluded.
IV. Conclusion
Because we conclude that Burgess's claims that certain
jurors failed to answer accurately questions that were posed
to them during the voir dire examination are not precluded, we
reverse the judgment of the Court of Criminal Appeals and
remand the case for that court, in turn, to remand it to the
trial court for an evidentiary hearing on the merits of
Burgess's juror-misconduct claims and a determination as to
whether Burgess is entitled to a new trial.
REVERSED AND REMANDED.
See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock,
JJ., concur.
Cobb, C.J., recuses herself. | September 5, 2008 |
5cfc5b83-ef61-45fa-9928-b45e03c9db0c | Ex parte Jeffrey Scott Moore. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jeffrey Scott Moore v. City of Leeds) | N/A | 1071026 | Alabama | Alabama Supreme Court | rel: 06/27/2008
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, 2007-2008
_________________________
1071026
_________________________
Ex parte Jeffrey Scott Moore
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jeffrey Scott Moore
v.
City of Leeds)
(Jefferson Circuit Court, CC-05-1356; CC-05-1357;
CC-05-1359;
Court of Criminal Appeals, CR-06-0760)
COBB, Chief Justice.
The petition for the writ of certiorari is denied.
1071026
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, Woodall, Stuart, Smith, Bolin, and Parker,
JJ., concur.
Murdock, J., dissents. | June 27, 2008 |
8d9343d8-e1f2-44ae-be47-44662c3c1c9b | Ex parte Sabrina Johnson et al. PETITION FOR WRIT OF PROHIBITION OR, IN THE ALTERNATIVE, WRIT OF MANDAMUS: CIVIL (In ( 352 ) re: Champion Home Builders Company; Champion Homes of Boaz, Inc.; and Homes of Merit, Inc. v. Sabrina Johnson et al.) | N/A | 1061760 | Alabama | Alabama Supreme Court | rel: 05/16/2008
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before the opinion is printed in Southern Reporter.
SUPREME COURT OF ALABAMA
OCTOBER TERM, 2007-2008
_________________________
1061760
_________________________
Ex parte Sabrina Johnson et al.
PETITION FOR WRIT OF PROHIBITION OR,
IN THE ALTERNATIVE, WRIT OF MANDAMUS
(In re: Champion Home Builders Company; Champion Homes of
Boaz, Inc.; and Homes of Merit, Inc.
v.
Sabrina Johnson et al.)
(Dale Circuit Court, CV-07-900026)
_________________________
1061762
_________________________
The separate actions were assigned to the same trial
1
judge.
2
Ex parte Lamar Jenkins et al.
PETITION FOR WRIT OF PROHIBITION OR,
IN THE ALTERNATIVE, WRIT OF MANDAMUS
(In re: CMH Manufacturing, Inc., and Clayton Homes, Inc.
v.
Lamar Jenkins et al.)
(Geneva Circuit Court, CV-07-900003)
On Applications for Rehearing
LYONS, Justice.
This Court's opinion of January 25, 2008, is withdrawn,
and the following is substituted therefor.
Champion Home Builders Company; Champion Homes of Boaz,
Inc.; Homes of Merit, Inc.; CMH Manufacturing, Inc.; and
Clayton Homes, Inc., all mobile-home manufacturers and sellers
(hereinafter sometimes referred to collectively as "the
mobile-home companies"), instituted two separate declaratory-
judgment actions in separate judicial circuits against
1
certain mobile-home owners who had previously instituted
arbitration proceedings before the American Arbitration
Association ("the AAA"), seeking to prevent the homeowners
1061760; 1061762
3
from proceeding with claims before the AAA brought on behalf
of other similarly situated mobile-home owners. The
homeowners' AAA proceedings sought class arbitration in
Montgomery County for a class of Alabama mobile-home owners.
After filing the declaratory-judgment complaints in the
Dale Circuit Court and the Geneva Circuit Court, the mobile-
home companies asked the AAA and the law firm representing the
homeowners in the AAA proceedings to stay those proceedings,
which were being conducted in Montgomery County, pending the
disposition of the declaratory-judgment actions. Those
requests were denied, and the mobile-home companies filed
motions in their separate declaratory-judgment actions asking
the trial judge to stay the AAA proceedings in Montgomery
County. The trial judge granted the mobile-home companies'
motions, and the homeowners petitioned this Court for a writ
of prohibition or, alternatively, a writ of mandamus. We
grant the petitions and issue the writs of mandamus.
I. Factual Background and Procedural History
A. Case no. 1061760
We first address the declaratory-judgment action brought
in the Dale Circuit Court by Champion Home Builders Company;
1061760; 1061762
4
Champion Homes of Boaz, Inc.; and Homes of Merit, Inc. ("the
Dale mobile-home companies").
Sabrina Johnson, William Baker, Corine Crittenden, Albert
Fritzke, Faye Fritzke, Larry Hutto, Sheila Hutto, Huey Nelson,
and Cynthia Nelson ("the Dale homeowners") filed their
complaint in arbitration with the AAA on December 22, 2006,
asserting various claims relating to allegedly improper design
and manufacture of mobile homes they had purchased. The Dale
homeowners requested that the AAA permit arbitration of claims
on behalf of a class of "thousands of [Alabama] homeowners who
unwittingly purchased manufactured homes built by [the mobile-
home companies] that were fundamentally defective for the
jurisdictions in which they lived," and they alleged that
"[t]he walls of their homes are literally rotting away as a
result of a pervasive defect in their construction that [the
mobile-home companies] have known about but failed to
correct." Dale homeowners' petition at 6; arbitration
complaint at 2.
On May 8, 2007, the Dale mobile-home companies commenced
their declaratory-judgment action in the Dale Circuit Court
against the Dale homeowners. The Dale mobile-home companies
1061760; 1061762
5
asked the trial court to declare that the Dale homeowners must
individually
arbitrate
their
previously
instituted
arbitration
claims in accordance with the arbitration provision of each
mobile-home company's contract, a provision that contains a
forum-selection clause that requires arbitration to take place
in the jurisdiction of the original retail sale of the mobile
home; to declare the Dale homeowners' previously instituted
class-action arbitration complaint to be contrary to Alabama
law, impermissible, and a breach of the contracts between the
Dale mobile-home companies and the Dale homeowners; and to
compel the Dale homeowners to arbitrate their claims
individually in the correct jurisdiction.
The
Dale
mobile-home
companies
state
in
their
declaratory-judgment complaint that the arbitration agreement
contained in the contracts executed by Johnson, Crittenden,
and the Nelsons ("the Dale contract 1") provides:
"ARBITRATION AND LIMITATION OF REMEDIES. It is
agreed that any controversy, claim or dispute
between
or
among the Manufacturer, homeowner,
independent dealer, finance company or any other
person or entity arising from or relating to the
Manufactured Home, its sale, transportation, setup,
repair, installation, use, design, manufacture,
financing, insurance, any other condition, the
manufacturer's limited warranty, any contract or any
alleged
promise,
representation,
agreement
or
1061760; 1061762
The
Dale
mobile-home
companies
allege
in
their
2
declaratory-judgment complaint that the Dale homeowners never
made any attempt to mediate their disputes before they filed
their arbitration complaint. The Dale homeowners state in
their petition for the writ of mandamus that the parties
participated in mediation after the declaratory-judgment
complaint was filed but that they were unable to resolve their
disputes.
6
instrument relating to or delivered in connection
with the Manufactured Home, or any alleged breach
thereof, and any claim based on or arising from an
alleged tort or claim of any kind whatsoever,
including any claim relating to the validity of this
arbitration and limitation of remedies provision
[collectively 'Claim(s)'], and if the Claim(s)
cannot be resolved through direct discussion or
negotiations, the Claim(s) first shall be mediated
as
administered
by
the
American
Arbitration
Association under its Commercial Mediation Rules
before
resorting
to
binding
arbitration.[ ]
2
Thereafter, any unresolved Claim(s) shall be settled
by binding arbitration administered by the American
Arbitration Association in accordance with its
Commercial Arbitration Rules, and any judgment on
the award rendered by the arbitrator(s) may be
entered in any Court having jurisdiction thereof.
... All mediation or arbitration proceedings shall
be conducted in the jurisdiction of the original
retail sale or at any other place selected by
agreement of all parties."
The Dale mobile-home companies further state in their
declaratory-judgment complaint that "[t]he operative language
of the Arbitration Agreements provided to the remaining
defendants
[Baker,
the
Fritzkes,
and
the
Huttos]
is
substantively the same [as the agreements provided to Johnson,
1061760; 1061762
7
Crittenden, and the Nelsons]." Complaint at 5. The materials
submitted in this mandamus proceeding by the Dale homeowners
and the Dale mobile-home companies include a document entitled
"Manufacturer's Limited Warranty & Arbitration Agreement."
Although the parties include this document as an exhibit
without identifying it further, it appears to be the
arbitration agreement provided to Baker, the Fritzkes, and the
Huttos ("the Dale contract 2"). This document provides:
"ARBITRATION AGREEMENT: It is agreed that any
controversy, claim or dispute between or among the
Manufacturer, homeowner,
independent
dealer,
finance
company or any other person or entity arising from
or relating to the Manufactured Home, its sale,
transportation, setup, repair, installation, use,
design, manufacture, financing, insurance, any other
condition, the manufacturer's limited warranty, any
contract or any alleged promise, representation,
agreement or instrument relating to or delivered in
connection with the Manufactured Home, or any
alleged breach thereof, and any claim based on or
arising from an alleged tort or claim of any kind
whatsoever, including any claim relating to the
validity of this arbitration and limitation of
remedies provision [collectively 'Claim(s)'], and if
the Claim(s) cannot be resolved through direct
discussion or negotiations,--and unless the parties
otherwise
agree
on
a
different
mediation
or
arbitration process--then the Claim(s) first shall
be
mediated
as
administered
by
the
American
Arbitration Association ('AAA') under its applicable
mediation
Rules
before
resorting
to
binding
arbitration. Thereafter, any unresolved Claim(s)
shall be settled by binding arbitration administered
by the AAA in accordance with its applicable
1061760; 1061762
8
arbitration Rules for such Claim(s), and any
judgment on the award rendered by the arbitrator(s)
may be entered in any Court having jurisdiction
thereof. The parties reserve their rights to
resolve the Claim(s) in an applicable small claims
court for disputes or Claim(s) within the scope of
the small claims court's jurisdiction. ... All
mediation
or
arbitration proceedings shall be
conducted in the jurisdiction of the original retail
sale or any other place selected by agreement of all
parties.
"....
"A copy of the applicable Rules of the AAA is
available upon request by contacting the American
Arbitration Association [at an address or Web site
provided]."
The Dale contract 1 specifically designates the Commercial
Arbitration Rules of the AAA as applicable to the pending
arbitration proceedings. The Dale contract 2 designates "its
[the AAA's] applicable arbitration Rules" as applicable to the
pending arbitration proceedings. None of the parties in case
no. 1061760 argues that the Commercial Arbitration Rules of
the AAA do not apply to these proceedings.
B. Case no. 1061762
We next address the declaratory-judgment action brought
in the Geneva Circuit Court by CMH Manufacturing, Inc., and
Clayton Homes, Inc. ("the Geneva mobile-home companies").
1061760; 1061762
9
Lamar Jenkins, Patricia Jenkins, Robert Knighten, and
Sharon Tate ("the Geneva homeowners") filed their complaint in
arbitration with the AAA on December 22, 2006, asserting
various claims relating to allegedly improper design and
manufacture of mobile homes they had purchased. Like the Dale
homeowners, the Geneva homeowners requested that the AAA
permit arbitration of claims on behalf of a class of
"thousands of [Alabama] homeowners who unwittingly purchased
manufactured homes built by [the mobile-home companies] that
were fundamentally defective for the jurisdictions in which
they lived," and they alleged that "[t]he walls of their homes
are literally rotting away as a result of a pervasive defect
in their construction that [the mobile-home companies] have
known about but failed to correct." Geneva homeowners'
petition at 6; arbitration complaint at 1. The Geneva
homeowners' initial arbitration complaint attached the wrong
contract and was rejected by the AAA, but on April 2, 2007,
the Geneva homeowners resubmitted the complaint with the
proper contract attached.
On February 2, 2007, the Geneva mobile-home companies
commenced their declaratory-judgment action in the Geneva
1061760; 1061762
The Geneva homeowners filed with the AAA a notice of
3
dismissal without prejudice of their claims against Clayton
Homes, Inc., after the commencement of the Geneva County
action. Clayton Homes states, however, in the response to the
Geneva homeowners' petition for a writ of mandamus, that it
has not yet been dismissed by the AAA.
10
Circuit Court against the Geneva homeowners. In the
complaint, Clayton Homes alleged that it was "making a special
appearance subject to and without waiving all objections as to
personal jurisdiction." Declaratory-judgment complaint at 1.
3
The Geneva mobile-home companies asked the trial court to
declare that the arbitration provision in CMH's contracts with
the Geneva homeowners does not obligate them "to arbitrate
class claims"; to enjoin the Geneva homeowners from proceeding
with previously instituted class arbitration; to dismiss the
Geneva
homeowners'
previously
instituted
class-action
arbitration complaint; and to compel the Geneva homeowners to
proceed with individual arbitration according to the terms of
their contracts.
The Geneva mobile-home companies state in their response
to the Geneva homeowners' petition that the arbitration
agreement contained in the contracts executed by the Geneva
homeowners ("the Geneva contract") provides:
1061760; 1061762
11
"Any dispute or claim relating to your manufactured
home
('Manufactured
Home'),
whether
based
in
contract, tort or otherwise, at the request of you
or CMH shall be resolved by BINDING ARBITRATION in
accordance with the Commercial Arbitration Rules of
the American Arbitration Association (AAA) or any
more applicable or appropriate rules then in effect
and the Federal Arbitration Act (9 U.S.C. § 1, et
seq.). ... All issues concerning whether or the
extent to which a dispute or claim is subject to
arbitration,
including issues relating to the
enforceability of this section, shall be determined
by the arbitrator(s), or by a court of competent
jurisdiction without a jury. If a dispute or claim
is not subject to arbitration, then such dispute or
claim shall be decided in a court of competent
jurisdiction WITHOUT A JURY. ..."
(Capitalization
in
original.)
The
Geneva
contract
specifically designates the Commercial Arbitration Rules of
the AAA as applicable to the pending arbitration proceedings.
None of the parties argues that the Commercial Arbitration
Rules of the AAA do not apply to these proceedings, but the
Geneva mobile-home companies argue that the Geneva contract
does not exclusively incorporate the AAA rules.
II. Standard of Review
The homeowners contend that the Dale Circuit Court and
the Geneva Circuit Court lack jurisdiction and authority to
stay the arbitration proceedings. Consequently, they seek a
writ of prohibition or, in the alternative, a writ of mandamus
1061760; 1061762
This Court's standard of review applicable to a petition
4
for a writ of prohibition is similar to the standard of review
applicable to a petition for a writ of mandamus:
"'Like mandamus, prohibition is an
extraordinary writ, "and will not issue
unless there is no other adequate remedy."
Ex parte K.S.G., 645 So. 2d 297, 299 (Ala.
Civ.
App.
1992)
(citing
Ex
parte
Strickland, 401 So. 2d 33 (Ala. 1981)).
"Prohibition is proper for the prevention
of a usurpation or abuse of power where a
court undertakes to act in a manner in
which
it
does
not
properly
have
jurisdiction." Ex parte K.S.G., 645 So. 2d
at 299.'
"Ex parte Sealy, L.L.C., 904 So. 2d 1230, 1232-33
12
from this Court directing the trial judge to vacate his orders
staying the arbitration proceedings and to dismiss the
declaratory-judgment actions brought by the mobile-home
companies. Although the normal basis upon which this Court
reviews orders granting or denying arbitration is by way of
direct appeal, see Rule 4(d), Ala. R. App. P., in this
proceeding, the homeowners' contention that the trial court
lacks
subject-matter
jurisdiction
is
appropriately
reviewed
by
way of a petition for a writ of mandamus. Ex parte Flint
Constr. Co., 775 So. 2d 805 (Ala. 2000).
This Court's standard of review applicable to a petition
for a writ of mandamus is well settled:
4
1061760; 1061762
(Ala. 2004)."
Ex parte Scrushy, 940 So. 2d 290, 293 (Ala. 2006).
13
"'"Mandamus is an extraordinary remedy
and requires a showing that 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 Inverness Constr. Co., 775 So. 2d 153, 156
(Ala. 2000)."
Ex parte Medical Assurance Co., 862 So. 2d 645, 649 (Ala.
2003).
III. Analysis
The homeowners contend that because all the contracts in
these cases incorporate the Commercial Arbitration Rules of
the AAA, the trial court does not have jurisdiction to decide
arbitrability in these cases. A declaratory-judgment action,
they argue, must "settle a bona fide justiciable controversy,"
Baldwin County v. Bay Minette, 854 So. 2d 42, 45 (Ala. 2003),
and because these contracts incorporate the Commercial
Arbitration Rules of the AAA, thereby providing that questions
of arbitrability are reserved for the arbitrator, there is,
the homeowners contend, no case or controversy before the
1061760; 1061762
14
trial court. The homeowners contend that the Commercial
Arbitration Rules of the AAA require that whether a dispute is
susceptible of class-action treatment must first be determined
by the arbitrator. They state: "An appropriate time to bring
an action to determine whether Alabama law prohibits class
arbitration is subsequent to an arbitrator's ruling that the
arbitration agreement does or does not allow class-wide
arbitration." Dale homeowners' petition, p. 16; Geneva
homeowners' petition, p. 15.
The Commercial Arbitration Rules of the AAA provide:
"R-1. Agreement of Parties
"(a) The parties shall be deemed to have made
these rules a part of their arbitration agreement
whenever they have provided for arbitration by the
American Arbitration Association (hereinafter AAA)
under its Commercial Arbitration Rules or for
arbitration by the AAA of a domestic commercial
dispute without specifying particular rules. These
rules and any amendment of them shall apply in the
form in effect at the time the administrative
requirements are met for a demand for arbitration or
submission agreement received by the AAA. The
parties,
by
written
agreement,
may
vary
the
procedures set forth in these rules. After
appointment of the arbitrator, such modifications
may be made only with the consent of the arbitrator.
"....
"R-7. Jurisdiction
1061760; 1061762
15
"(a) The arbitrator shall have the power to rule
on his or her own jurisdiction, including any
objections with respect to the existence, scope or
validity of the arbitration agreement."
The Supplementary Rules for Class Arbitrations of the AAA
provide:
"3. Construction of the Arbitration Clause
"Upon
appointment,
the
arbitrator
shall
determine as a threshold matter, in a reasoned,
partial final award on the construction of the
arbitration
clause,
whether
the
applicable
arbitration
clause permits the arbitration to
proceed on behalf of or against a class (the 'Clause
Construction Award'). The arbitrator shall stay all
proceedings following the issuance of the Clause
Construction Award for a period of at least 30 days
to permit any party to move a court of competent
jurisdiction to confirm or to vacate the Clause
Construction Award. Once all parties inform the
arbitrator in writing during the period of the stay
that they do not intend to seek judicial review of
the Clause Construction Award, or once the requisite
time period expires without any party having
informed the arbitrator that it has done so, the
arbitrator may proceed with the arbitration on the
basis stated in the Clause Construction Award. If
any party informs the arbitrator within the period
provided that it has sought judicial review, the
arbitrator may stay further proceedings, or some
part of them, until the arbitrator is informed of
the ruling of the court.
"In
construing
the
applicable
arbitration
clause, the arbitrator shall not consider the
existence of these Supplementary Rules, or any other
AAA rules, to be a factor either in favor of or
against permitting the arbitration to proceed on a
class basis."
1061760; 1061762
16
A. Case no. 1061760
The Dale mobile-home companies argue that as a court of
general jurisdiction, the trial court has jurisdiction over
disputes involving the interpretation and enforcement of
contracts. Rose v. Delaney, 576 So. 2d 232, 233 (Ala. 1991).
Relying on Unum Life Insurance Co. of America v. Wright, 897
So. 2d 1059, 1074 (Ala. 2004), they contend that this Court
"has specifically recognized declaratory judgment actions as
acceptable means for obtaining an order compelling arbitration
in accordance with the terms of an arbitration agreement."
Dale mobile-home companies' principal brief at 13. They argue
that the trial court had jurisdiction to interpret and enforce
the venue-selection clause in the arbitration agreements and
that the trial court, not an arbitrator, should decide whether
class arbitration is permitted under these agreements. They
then argue that Alabama law prohibits class arbitration.
We first address whether an arbitrator or a court is
authorized to decide the arbitrability of certain threshold
issues in this case, i.e., class-wide arbitration and the
effect of contractual provisions in the arbitration agreements
governing venue of individual arbitration claims in light of
1061760; 1061762
17
a contractual provision in those same agreements embracing
rules permitting class-wide arbitration. This Court requires
a trial court to permit arbitration of the issue of
arbitrability "when the plain language of the agreement
unquestionably shows that the parties agreed to arbitrate the
issue of arbitrability." Smith v. Mark Dodge, Inc., 934 So.
2d 375, 379 (Ala. 2006). We have held that "an arbitration
provision that incorporates rules that provide for the
arbitrator to decide issues of arbitrability clearly and
unmistakably evidences the parties' intent to arbitrate the
scope of the arbitration provision." CitiFinancial Corp.,
L.L.C. v. Peoples, 973 So. 2d 332, 340 (Ala. 2007).
The Dale contract 1 specifically incorporates the
Commercial Arbitration Rules of the AAA; the Dale contract 2
incorporates the AAA's "applicable arbitration Rules" and, in
light of the absence of any argument to the contrary, we
construe the "applicable" AAA rules to be the Commercial
Arbitration Rules. Consequently, both the Dale contract 1 and
the Dale contract 2 confer jurisdiction upon the AAA to make
an initial determination as to "whether the applicable
arbitration clause permits the arbitration to proceed on
1061760; 1061762
18
behalf of or against a class." Supplementary Rules for Class
Arbitrations of the AAA, Rule 3. By agreeing to be bound by
the AAA's Commercial Arbitration Rules, the Dale homeowners
and the Dale mobile-home companies conferred upon the
arbitrator the authority to determine the scope of the
arbitration agreement as it relates to the availability of
class-wide arbitration.
The Dale mobile-home companies contend that Rule 3 of the
AAA's Supplementary Rules applies only to purported class
members who signed their respective arbitration agreements
after October 8, 2003, the date upon which Supplementary Rule
3 was adopted. They cite no authority for such a proposition;
moreover, the proposition conflicts with Rule 1(a) of the
AAA's Commercial Arbitration Rules, which provides: "These
rules and any amendment of them shall apply in the form in
effect at the time the administrative requirements are met for
a demand for arbitration or submission agreement received by
the AAA." (Emphasis added.)
The Dale mobile-home companies note that Supplementary
Rule 3 provides that, "[u]pon appointment, the arbitrator
shall determine ... whether the applicable arbitration clause
1061760; 1061762
See Gertz v. Allen, 376 So. 2d 695, 697 (Ala. 1979)
5
("Whether a provision in a contract is a condition precedent
is dependent, not upon formal words, but upon the intent of
the parties to be determined from the entire contract.");
Federal Ins. Co. v. I. Kruger, Inc., 829 So. 2d 732, 740 (Ala.
2002), quoting with approval Koch v. Construction Tech., Inc.,
924
S.W.2d
68,
69
(Tenn.
1996)
("'First,
it
is
well-established that condition precedents are not favored in
contract law, and will not be upheld unless there is clear
language to support them.'").
19
permits the arbitration to proceed on behalf of or against a
class." They say, again without citation to authority, that
because no arbitrator has yet been appointed, Supplementary
Rule 3 is without a field of operation. Assuming that the
appointment of an arbitrator creates a condition precedent to
be fulfilled rather than merely designates the stage of the
proceedings when the issue of class-wide arbitrability is to
be resolved, the Dale mobile-home companies are estopped from
5
taking advantage of the fact that no arbitrator has yet been
appointed. See World's Exposition Shows, Inc. v. B.P.O. Elks,
No. 148, 237 Ala. 329, 332, 186 So. 721, 724 (1939), in which
the Court quoted with approval 3 Williston on Contracts § 677:
"'It is a principle of fundamental justice that if a promisor
is himself the cause of the failure of performance, either of
an obligation due him or of a condition upon which his own
liability depends, he cannot take advantage of the failure.'"
1061760; 1061762
20
The Dale mobile-home companies' subjugation to the authority
of an arbitrator to resolve the issue of class-wide
arbitrability as provided through incorporation of the AAA's
Commercial
Arbitration Rules
or the AAA's "applicable
arbitration Rules" in the contracts between the parties has
not yet occurred because the mobile-home companies obtained a
stay of the proceedings, thereby preventing the appointment of
an arbitrator.
For all that appears, the arbitrator, upon appointment,
will make a determination favorable to the mobile-home
companies. Until such time as an arbitrator is appointed, any
attempt to obtain a declaratory judgment as to a hypothetical
future controversy is beyond the subject-matter jurisdiction
of the circuit courts. See Bedsole v. Goodloe, 912 So. 2d
508, 518 (Ala. 2005):
"The Declaratory Judgment Act, §§ 6-6-220
through -232, Ala. Code 1975, 'does not "'empower
courts to ... give advisory opinions, however
convenient it might be to have these questions
decided for the government of future cases.'"'
Bruner v. Geneva County Forestry Dep't, 865 So. 2d
1167, 1175 (Ala. 2003) (quoting Stamps v. Jefferson
County Bd. of Educ., 642 So. 2d 941, 944 (Ala. 1994)
(quoting in turn Town of Warrior v. Blaylock, 275
Ala. 113, 114, 152 So. 2d 661, 662 (1963)))
(emphasis added in Stamps). This Court has
emphasized that declaratory-judgment actions must
1061760; 1061762
21
'settle a "bona fide justiciable controversy."'
Baldwin County v. Bay Minette, 854 So. 2d 42, 45
(Ala. 2003) (quoting Gulf South Conference v. Boyd,
369 So. 2d 553, 557 (Ala. 1979)). The controversy
must be '"definite and concrete,"' must be '"real
and substantial,"' and must seek relief by asserting
a claim opposed to the interest of another party
'"upon a state of facts which must have accrued."'
Baldwin County, 854 So. 2d at 45 (quoting Copeland
v. Jefferson County, 284 Ala. 558, 561, 226 So. 2d
385, 387 (1969)). '"Declaratory judgment proceedings
will not lie for an 'anticipated controversy.'"'
Creola Land Dev., Inc. v. Bentbrooke Housing,
L.L.C., 828 So. 2d 285, 288 (Ala. 2002) (quoting
City of Dothan v. Eighty-Four West, Inc., 738 So. 2d
903, 908 (Ala. Civ. App. 1999)). Thus, if a
declaratory
judgment
would
not
terminate
any
uncertainty or controversy, the court should not
enter such a judgment. Bruner, 865 So. 2d at 1175.
"'"[J]usticiability
is
jurisdictional,"
Ex
parte
State ex rel. James, 711 So. 2d [952,] 960 n.2 (Ala.
1998); hence, if necessary, "this Court is duty
bound to notice ex mero motu the absence of subject
matter jurisdiction."' Baldwin County, 854 So. 2d
at 45 (quoting Stamps, 642 So. 2d at 945 n.2)."
The United States Supreme Court recognizes a strong
federal policy favoring arbitration.
"The [Federal] Arbitration Act establishes that, as
a matter of federal law, any doubts concerning the
scope of arbitrable issues should be resolved in
favor of arbitration, whether the problem at hand is
the construction of the contract language itself or
an allegation of waiver, delay, or a like defense to
arbitrability."
Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S.
1, 24-25 (1983) (footnote omitted). That the contracts in
1061760; 1061762
22
this case call for an arbitrator to make the initial
determination "whether the applicable arbitration clause
permits the arbitration to proceed on behalf of or against a
class" is ample reason for this Court to decline to rewrite
the agreements to suit the preference of one of the parties
for an immediate judicial determination. Such indifference to
the unambiguous terms of a written agreement is contradictory
to settled principles of Alabama contract law. See, e.g.,
Sloan Southern Homes, LLC v. McQueen, 955 So. 2d 401, 404
(Ala. 2006) ("'"A court may not make a new contract for the
parties or rewrite their contract under the guise of
construing it."'" (quoting Turner v. West Ridge Apartments,
Inc., 893 So. 2d 332, 335 (Ala. 2004), quoting in turn Ex
parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 35-36 (Ala.
1998))); Mutual Sav. Life Ins. Co. v. James River Corp. of
Virginia, 716 So. 2d 1172, 1178 (Ala. 1998) ("A broader
interpretation of the transaction would effectively rewrite
the contract to give the investors more than they bargained
for in an arm's-length transaction between sophisticated
parties."); and Ex parte Associates Commercial Corp., 423 So.
2d 195, 200 (Ala. 1982) ("The pivotal rule that lies at the
1061760; 1061762
23
core of this case is that which says no court can rewrite the
terms of a plain and unambiguous contract."). We cannot
create unique rules of contract law applicable only to
arbitration agreements. Doctor's Assocs., Inc. v. Casarotto,
517 U.S. 681, 687 (1996).
The Dale mobile-home companies contend that a provision
in both of the Dale contracts limits the venue of any disputes
to the jurisdiction where the retail sale of the mobile home
occurred. They insist that even if the trial court does not
have jurisdiction to make the initial determination as to
whether the arbitration may proceed on behalf of a class, the
trial court has jurisdiction to enforce the venue-selection
clause in the Dale contracts. We note that Montgomery County
was the jurisdiction of the retail sale as to only two of the
nine Dale homeowners. The Dale homeowners contend that the
venue provision is superseded by the availability of class-
wide treatment of the claims.
The Dale mobile-home companies rely on Sterling Financial
Insurance Group, Inc. v. Hammer, 393 F.3d 1223, 1225 (11th
Cir. 2004) ("[A] federal district court, pursuant to 9 U.S.C.
§ 4, has jurisdiction to enforce a forum selection clause in
1061760; 1061762
In proceedings
before
the
arbitrator
dealing
with
whether
6
class-wide arbitration is available in this case, the Dale
24
a valid arbitration agreement that has been disregarded by the
arbitrators."). The Dale mobile-home companies also cite
Redman Home Builders Co. v. Lewis, 513 F. Supp. 2d 1299, 1311
(S.D. Ala. 2007), in which the United States District Court
for the Southern District of Alabama declined to limit
Sterling Financial to instances where an arbitrator has
previously disregarded the forum-selection clause. This Court
is not bound by decisions of the United States Courts of
Appeals or the United States District Courts; moreover, we
conclude that Sterling Financial is distinguishable and that
the reasoning in Lewis is not persuasive. Sterling Financial
authorizes a trial court to enforce a forum-selection clause
in an arbitration agreement if the clause has been disregarded
by an arbitrator, a situation that has not yet occurred, and
may not occur, in this case. Lewis involved, as does this
case, a predicate issue, susceptibility to class-action
treatment, in which the venue issue is embedded, which issue
the parties have agreed to submit to an arbitrator initially
with a subsequent right of interlocutory review in a judicial
forum.
6
1061760; 1061762
mobile-home companies can argue any inconsistency between the
venue provisions in the Dale contracts and the AAA's
Supplementary Rule 3 and then urge the supremacy of the venue
provisions in the arbitration agreements. See Szuts v. Dean
Witter Reynolds, Inc., 931 F.2d 830, 831-32 (11th Cir. 1991).
25
Any attempt to obtain a declaratory judgment as to the
venue provision in the Dale contracts is also a hypothetical
future
controversy
that
is
beyond
the
subject-matter
jurisdiction of the circuit courts. See Bedsole v. Goodloe,
912 So. 2d at 518.
B. Case no. 1061762
The Geneva mobile-home companies argue that the trial
court has jurisdiction to determine its own jurisdiction, Ex
parte Textile Workers Union, 249 Ala. 136, 30 So. 2d 247
(1947), and that justiciable controversies exist here, i.e.,
whether the Geneva mobile-home companies are obligated to
arbitrate class claims and whether the court or an arbitrator
has the authority to decide the class-treatment issue. The
Geneva mobile-home companies also argue that the Geneva
contract does not exclusively incorporate the Commercial
Arbitration Rules of the AAA and that the Geneva contract
expressly provides for a trial court to interpret that
1061760; 1061762
26
contract. They then argue that Alabama law prohibits class
arbitration.
We first examine whether the Geneva contract incorporates
the Commercial Arbitration Rules of the AAA. The contract
provides that any "dispute or claim" is to be resolved by
arbitration "in accordance with the Commercial Rules of the
[AAA] or any more applicable or appropriate rules then in
effect." The Geneva mobile-home companies argue that because
the Geneva contract does not incorporate the Commercial
Arbitration Rules exclusively, the parties "did not select in
advance the specific procedures that may be employed for their
arbitration." Geneva mobile-home companies' principal brief
at 19. The Geneva mobile-home companies do not suggest what
other "applicable or appropriate rules" might govern the
Geneva homeowners' dispute or claim. They then argue:
"Although [the Geneva homeowners] may have chosen
the Supplemental Rules after a dispute arose, the
parties did not intend for those rules in particular
to apply when they entered into the [Geneva
contract]. Indeed, the Supplementary Rules did not
exist when Petitioner Sharon Tate entered into the
[Geneva contract]. They came into effect nearly
four months later."
Geneva mobile-home companies' principal brief at 19 (footnote
omitted).
1061760; 1061762
27
As we pointed out in Section III.A. above, Rule 1(a) of
the Commercial Arbitration Rules of the AAA provides that the
AAA rules "and any amendment of them shall apply in the form
in effect at the time the administrative requirements are met
for a demand for arbitration ...." We conclude that the
Geneva contract, by providing that any dispute or claim under
the Geneva contract is to be resolved by arbitration conducted
pursuant to the Commercial Arbitration Rules of the AAA "or
any more applicable or appropriate rules then in effect,"
incorporates the AAA's Commercial Arbitration Rules together
with the Supplemental Rules adopted on October 8, 2003. We
have previously noted the strong federal policy favoring
arbitration recognized by the United States Supreme Court.
See, e.g., Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp.,
460 U.S. 1 (1983). That policy would not be served by
construing the Geneva contract as allowing some nebulous,
undefined, unnamed rules to govern instead of the specified
Commercial Arbitration Rules of the AAA "then in effect."
Rule 1(a) does allow the parties, "by written agreement," to
"vary the procedures set forth in these rules." No such
written agreement appears in the materials before us, and the
1061760; 1061762
28
Geneva mobile-home companies do not contend that any such
agreement exists.
We view the reference to "any more applicable or
appropriate rules then in effect" as nothing more than an
acknowledgment of the parties' right to agree subsequently to
be bound by rules that they might later deem more applicable
or appropriate. In the absence of any subsequent agreement,
we conclude that the Geneva contract specifically incorporates
the Commercial Arbitration Rules of the AAA.
The Geneva mobile-home companies also argue that the
Geneva contract "expressly provides that a party may choose a
court for the interpretation" of the contract. Geneva mobile-
home companies' principal brief at 16. Therefore, they argue,
they chose a "court of competent jurisdiction to determine
whether the class claims are subject to arbitration." Geneva
mobile-home companies' principal brief at 17. In insisting
that the Geneva contract allows either an arbitrator or a
court to interpret the contract, the Geneva mobile-home
companies rely on the following sentence in the Geneva
contract: "All issues concerning whether or the extent to
which a dispute or claim is subject to arbitration, including
1061760; 1061762
29
issues relating to the enforceability of this section, shall
be determined by the arbitrator(s), or by a court of competent
jurisdiction without a jury." This sentence is preceded by
the following sentence:
"Any dispute or claim relating to your manufactured
home
('Manufactured
Home'),
whether
based
in
contract, tort or otherwise, at the request of you
or CMH shall be resolved by BINDING ARBITRATION in
accordance with the Commercial Arbitration Rules of
the American Arbitration Association (AAA) or any
more applicable or appropriate rules then in effect
and the Federal Arbitration Act (9 U.S.C. § 1, et
seq.)."
(Capitalization in original.) Reading the two sentences in
context, the sentence upon which the Geneva mobile-home
companies rely simply allows the arbitrator or the court to
resolve disputes as to the extent to which the Geneva
homeowners' claims are subject to arbitration. None of the
parties in this case dispute the susceptibility of the Geneva
homeowners' claims to arbitration. The dispute here is
whether claims of other homeowners can be included in a class.
Consequently, the sentence in the Geneva contract that allows
an arbitrator or a court to determine whether a dispute or
claim is "subject to arbitration" simply does not support the
Geneva mobile-home companies' argument that the trial court,
1061760; 1061762
30
and not an arbitrator, is authorized to decide whether class-
wide arbitration applies to the Geneva homeowners' claims.
Having concluded that the Geneva contract incorporates
the Commercial Arbitration Rules of the AAA and that it does
not remove from an arbitrator the authority to decide the
issue of arbitrability, we hold that the Geneva contract, like
the Dale contracts, confers jurisdiction upon the AAA to make
an initial determination as to "whether the applicable
arbitration clause permits the arbitration to proceed on
behalf of or against a class." Supplementary Rules for Class
Arbitrations of the AAA, Rule 3. For the reasons discussed in
Section III.A. above, the Geneva mobile-home companies and the
Geneva homeowners have conferred upon the arbitrator the
authority to determine the scope of the arbitration agreement
as it relates to the availability of class-wide arbitration,
and until such time as the arbitrator has made such a
determination, any attempt to obtain a declaratory judgment as
to a controversy is a hypothetical one that at this point is
beyond the subject-matter jurisdiction of the circuit court.
IV. Conclusion
1061760; 1061762
31
We express no opinion on the myriad defenses to class-
wide treatment of the claims and the venue of any such class-
wide proceeding pending before the AAA raised by the mobile-
home companies in the proceedings pending in the Dale and
Geneva Circuit Courts. Such defenses must first be asserted
before the AAA pursuant to the arbitration agreements between
the parties. The trial judge lacked jurisdiction to become
involved in this dispute over the susceptibility of the claims
to class-wide treatment in proceedings in Montgomery County in
the absence of a determination adverse to the mobile-home
companies in the proceedings before the AAA, an event that has
not, and may not, occur. Because we hold that the trial court
lacks jurisdiction over these cases, they must be dismissed
rather than placed on the trial court's administrative docket,
as the mobile-home companies argue is more appropriate. A
controversy that is not justiciable implicates subject-matter
jurisdiction,
and
a
court
that
lacks
subject-matter
jurisdiction has no power to take any action other than to
dismiss the action; any other action it takes is void. Ex
parte Alabama Dep't of Transp., [Ms. 1060078, July 20, 2007]
___ So. 2d ___ (Ala. 2007).
1061760; 1061762
32
We conclude that under the facts of this case a writ of
mandamus is the appropriate remedy by which to order a vacatur
of the trial judge's void orders. Because we have no basis on
which to conclude that the trial court will not comply with
our mandate, we decline to issue the alternative writs of
prohibition. We direct the trial court to vacate its orders
staying the proceedings before the AAA and to enter an order
of dismissal in each action.
1061760--APPLICATION OVERRULED; OPINION OF JANUARY 25,
2008, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT
ISSUED.
Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur.
1061762--APPLICATION OVERRULED; OPINION OF JANUARY 25,
2008, WITHDRAWN; OPINION SUBSTITUTED; PETITION GRANTED; WRIT
ISSUED.
Cobb, C.J., and Stuart, Bolin, and Murdock, JJ., concur. | May 16, 2008 |
e62d27bd-5547-437c-bc0c-1dbdac7a0b52 | William A. Manci v. Ball, Koons & Watson, a partnership | N/A | 1061370 | Alabama | Alabama Supreme Court | REL: 5/23/08
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, 2007-2008
____________________
1061370
____________________
William A. Manci
v.
Ball, Koons & Watson, a partnership
Appeal from Baldwin Circuit Court
(CV-04-606)
SEE, Justice.
William A. Manci appeals from the entry of a default
judgment in favor of Ball, Koons & Watson, a partnership
formed for the practice of law ("BK&W"), on its claims against
1061370
2
Manci and from the dismissal of Manci's counterclaims against
BK&W. We affirm.
Facts and Procedural History
In 1998, Manci retained Ball & Koons, Attorneys at Law
(now BK&W), to represent him in litigation regarding the
estate of Arthur Manci ("the estate"). When BK&W's legal fees
exhausted Manci's original retainer, Manci and BK&W entered
into a contingent-fee agreement providing
that
Manci
would
pay
BK&W a fee of 1/3 of the value of any assets or sums Manci
recovered or was awarded as a result of the litigation.
Following the litigation, Manci refused to make any payment
under the contingent-fee agreement. In May 2004, BK&W sued
Manci, the estate, and other persons and entities associated
with the estate seeking the payment of fees for legal services
BK&W had provided to Manci. Manci brought a counterclaim
against BK&W and its individual attorneys, alleging legal
malpractice and requesting a judgment declaring that BK&W was
not entitled to the payment of any legal fees.
In February 2005, BK&W submitted its first discovery
requests to Manci. Manci did not respond. In June 2005, BK&W
moved the trial court to compel Manci to respond to the
1061370
3
discovery requests. In March 2006, the trial court ordered
that all pending discovery be completed within 30 days. In
April 2006, BK&W noticed the deposition of Manci, but he
failed to respond to the notice or to appear for the
deposition. Manci then amended his answer and counterclaim
and responded to BK&W's first set of interrogatories with a
series of objections and vague responses.
In July 2006, BK&W filed a motion to show cause why Manci
should not be held in contempt for his nonresponsive replies
to BK&W's discovery requests. The trial court granted the
show-cause motion in September 2006. Manci moved the trial
court to vacate its order and to enter a protective order. On
January 2, 2007, the trial court held a hearing on the
outstanding motions of all the parties, subsequent to which it
ordered Manci to complete his responses to discovery by
January 19, 2007, and set February 2, 2007, as the date for
Manci's
deposition.
Manci
responded
by
petitioning
this
Court
for the writ of mandamus declaring that the trial court had
exceeded its discretion by ordering Manci to complete his
responses to BK&W's discovery requests. We denied that
1061370
4
petition without an opinion on February 27, 2007 (case no.
1060633).
On January 31, 2007, BK&W moved for sanctions against
Manci for his failure to comply with the trial court's
discovery orders. On February 2, 2007, the trial court
entered an order finding that "[a]s of the date of this Court
Order, [Manci] still refuses to provide any answers to
discovery as ordered by this Court in it[]s order of January
8, 2007." Based on this finding, the trial court entered a
default judgment against Manci on BK&W's claims, dismissed
Manci's
counterclaims
with
prejudice,
and
awarded
BK&W
damages
in the amount of $1,212,045.78 based on the contingent-fee
agreement. Manci moved to set aside the trial court's default
judgment. The trial court denied that motion, and Manci now
appeals.
Issues
Manci presents five issues on appeal. First, Manci
argues that the trial court exceeded its discretion by
entering a default judgment on BK&W's claims and by dismissing
Manci's counterclaims as a sanction for Manci's failure to
comply with the trial court's discovery orders. Second, Manci
1061370
5
argues that his failure to submit discovery was harmless
because, he says, BK&W never properly replied to Manci's
amended counterclaim and, thus, admitted the averments of the
counterclaim. Third, Manci argues that the trial court erred
in granting BK&W's motion to tax Manci with fees for an expert
witness incurred during BK&W's representation of Manci.
Fourth, Manci argues that BK&W presented no admissible
evidence to support the award of damages against him. Fifth,
Manci argues that the record does not support the trial
court's finding that Manci's responses to discovery were not
made in good faith.
Standard of Review
In reviewing a trial court's denial of a motion to set
aside a default judgment, 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
1061370
6
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
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).
Analysis
I.
First, we address Manci's argument that the trial court
exceeded its discretion in entering a default judgment on
BK&W's claims and in dismissing Manci's counterclaims as a
sanction for Manci's failure to comply with the trial court's
discovery orders.
A. Meritorious Defense
1061370
7
In clarifying the meritorious-defense requirement for
reviewing a trial court's refusal to set aside a default
judgment, this Court has stated:
"To be more precise, 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."
Kirtland, 524 So. 2d at 606 (citations omitted). In the trial
court's order denying Manci's motion to set aside the default
judgment
and
the dismissal of Manci's counterclaims, the trial
court found that Manci had "failed to set forth with
sufficient particularity a plausible legal defense based upon
(1) a viable legal theory, and (2) a strong factual basis to
counter [BK&W]'s Cause of Action. [Manci]'s mere allegation
that he has a meritorious defense is insufficient."
1061370
8
The record supports the trial court's order. Manci's
motion to set aside the judgment makes only one allegation:
"The contents of the combined motions creates a genuine issue
as to whether Manci or his counsel has engaged in culpable
conduct." Because Manci's motion presents "mere bare legal
conclusions without factual support," Kirtland, 524 So. 2d at
606, we turn to Manci's amended answer and counterclaim to
determine whether they show a meritorious defense.
Manci's amended answer and counterclaim aver three
affirmative defenses. First, Manci offers a bare allegation
that BK&W fails to state a claim upon which relief can be
granted. This allegation is insufficient as a basis on which
to set aside the default judgment. Second, Manci asserts that
BK&W's claims are barred because the complaint "fails to
allege that BK&W performed all of BK&W's obligations and
conditions precedent to BK&W's right to recover under the
[contingent-fee agreement]." This second assertion, however,
is factually incorrect. BK&W's complaint states that BK&W
"substantially performed all of the terms required of it under
the terms of said [contingent-fee agreement] and a dispute has
arisen concerning the amount [Manci] owes [BK&W] for legal
1061370
9
services rendered." Manci's third defense is that BK&W
forfeited the right to compensation by engaging in abusive and
overreaching misconduct in its attempt to collect the disputed
legal fees. However, Manci offers no legal basis for this
contention. Therefore, this claim too is insufficient to
demonstrate that Manci has a meritorious defense.
Manci asserted two claims in his counterclaim. Manci
alleges
a
legal-services-liability
claim
against
BK&W,
alleging numerous breaches of the standard of care applicable
to BK&W. However, this Court has consistently held that "'"in
a legal malpractice case, the plaintiff must show that but for
the defendant's negligence he would have recovered on the
underlying cause of action ...."'" Dennis v. Northcutt, 923
So. 2d 275, 279 (Ala. 2005) (quoting Independent Stave Co. v.
Bell, Richardson & Sparkman, P.A. 678 So. 2d 770, 772 (Ala.
1996), quoting in turn McDuffie v. Brinkley, Ford, Chestnut &
Aldridge, 576 So. 2d 198, 199 (Ala. 1991)). Not only does
Manci not allege that he failed to recover on the underlying
matter
as
the
result
of
BK&W's
negligence,
but
his
counterclaim also repeatedly refers to BK&W's "successful"
handling of his case.
1061370
10
Manci also seeks in his counterclaim a judgment declaring
that BK&W is not entitled to attorney fees under the terms of
the contingent-fee agreement he entered into with BK&W.
However, BK&W's complaint seeks to recover all expenses and
legal fees arising from its representation of Manci, not just
those due under the contingent-fee agreement. In fact,
Manci's counterclaim admits that "BK&W is entitled to be
compensated for those legal representations of him on the
basis of quantum meruit instead of a contingent fee." By
Manci's own admission, his defenses and counterclaims are not
a complete defense to BK&W's action; therefore, Manci fails to
meet the meritorious-defense requirement of a challenge to the
default judgment.
B. Prejudice to the Nondefaulting Party
This Court has stated:
"'The setting aside of a default judgment delays a
final termination of the litigation. This delay
frustrates or impedes a plaintiff's efforts to
recover on his claim and causes him to incur
additional
costs.
Moreover,
the
delay
may
facilitate fraud and collusion, result in loss of
evidence, and hinder discovery.'"
Zeller v. Bailey, 950 So. 2d 1149, 1153 (Ala. 2006) (emphasis
omitted) (quoting Kirtland, 524 So. 2d at 606-07). On this
1061370
11
factor, the trial court found that BK&W would be prejudiced if
the default judgment were to be set aside because "[t]he Court
is convinced that [Manci] will never comply with the Rules of
Civil Procedure or the Orders of this Court if the Default
Judgment is set aside." Moreover, the record indicates that
the trial court held a hearing on March 6, 2007, to determine
the amount of damages arising from the default judgment and,
after the hearing, entered an order setting damages in the
amount of $1,212,045.78. On March 26, 2007, Manci filed an
untimely "Notice of Disclaimer" with the circuit court,
attempting to disclaim his interest in the estate, which was
deposited with the clerk of the circuit court pending the
resolution of this case. Although the trial court rejected
this disclaimer as "ineffective and for naught," it
demonstrates that Manci has attempted to divest himself of
assets from which the judgment in favor of BK&W might be paid.
Because further delay in bringing this case to resolution
could result in further attempts by Manci to "facilitate
fraud," setting aside the default judgment would unfairly
prejudice BK&W.
C. Culpability of the Defaulting Party's Conduct
1061370
12
This Court has stated in regard to the culpability
factor:
"To warrant a refusal to set aside a default
judgment, the defaulting party's actions that
resulted in the entry of the default judgment must
constitute willful conduct or conduct committed in
bad faith. Negligence alone is not sufficient. Bad
faith or willfulness is identified by 'incessant and
flagrant disrespect for court rules, deliberate and
knowing
disregard
for
judicial
authority,
or
intentional nonresponsiveness.' Kirkland [v. Fort
Morgan Auth. Sewer Serv., Inc.], 524 So. 2d [600] at
608 [(Ala. 1988)] (citing Agio Indus., Inc. v. Delta
Oil Co., 485 So. 2d 340, 342 (Ala. Civ. App. 1986)).
A trial court's finding with respect to the
culpability of the defaulting party is subject to
great deference. Jones v. Hydro-Wave of Alabama,
Inc., 524 So. 2d 610, 616 (Ala. 1988)."
Zeller, 950 So. 2d at 1154. The trial court stated that
"[Manci] has failed to offer any reasonable explanation why
the discovery responses have not been forthcoming. This Court
has
never
witnessed
such
incessant
and
flagrant
disrespect
for
Court rules or deliberate and knowing disregard for judicial
authority, or more intentional non-responsiveness than of
[Manci] in this case." On appeal, Manci appears to argue that
the trial court erred by granting BK&W's motion for a default
judgment without ever having ordered him to respond to the
discovery requests pursuant to Rule 37(a), Ala. R. Civ. P.,
which provides the circumstances under which a party may move
1061370
13
the court to compel discovery. Manci's allegation that he was
not ordered to respond to discovery is, however, incorrect.
The record indicates that BK&W first moved the trial court to
compel discovery on June 17, 2005. The trial court entered an
order on September 15, 2006, under which Manci was ordered "to
fully and completely answer the interrogatories as propounded
on or before October 15, 2006." The trial court entered a
second order compelling discovery on January 8, 2007. BK&W
then moved for sanctions against Manci on January 31, 2007.
The trial court granted that motion on February 2, 2007.
Manci has offered no reasonable explanation for his failure to
comply with the trial court's discovery orders. After
reviewing the arguments of the parties and the record in this
case, we hold that the trial court did not exceed its
discretion in finding that Manci's conduct was willful and
committed in bad faith and warranted the sanctions of the
entry of a default and the dismissal of his counterclaim.
II.
Second, Manci argues that his failure to submit proper
discovery responses was harmless because, he says, BK&W never
properly replied to his amended counterclaim, and, thus, it
1061370
14
admitted the averments of the counterclaim. Manci bases this
argument on Rule 8(d), Ala. R. Civ. P., which provides, in
relevant part, that "[a]verments in a pleading to which a
responsive pleading is required, other than those as to the
amount of damage, are admitted when not denied in the
responsive pleading." In Hawk v. Bavarian Motor Works, 342
So. 2d 355 (Ala. 1977), this Court dealt with the issue
whether "the failure to file a written denial of a pleading to
which a response is required, under Rule 8(d), [Ala. R. Civ.
P.], admits the allegations of that pleading where the issues
tried are embraced in prior pleadings that were responded to
in writing." 342 So. 2d at 356. In that case, the plaintiff's
original complaint contained six counts related to an
allegedly defective motorcycle. The defendant responded to
the complaint, denying any negligence. The plaintiff later
added a seventh count, alleging that the defendant had notice
of the defect. The defendant did not file an answer to this
amended complaint. When the case went to trial, the plaintiff
moved for a directed verdict (now a judgment as a matter of
law, see Rule 50, Ala. R. Civ. P.) on count seven, alleging
that the defendant had admitted that count by not responding
1061370
15
as required by Rule 8(b), Ala. R. Civ. P. The trial court
denied that motion, and an appeal followed. This Court
affirmed the trial court's order denying the motion, stating
that "mere failure to file an additional answer to a recast
theory of one issue already stated in a previously filed
pleading could not reasonably and fairly require strict
application of Rule 8(d) to thwart the just determination of
this action." 342 So. 2d at 357. The Court reasoned that the
amended complaint "states nothing so materially different from
what is stated in the original complaint so that an answer to
the original would not sufficiently answer the amendment." 342
So. 2d at 357. We find Hawk to be apposite. Manci's amended
counterclaim does not add a new basis of recovery; rather, it
appears to amplify the grounds on which Manci based his
request for a declaratory judgment on the contingent-fee
agreement and his legal-malpractice claim. BK&W's response to
Manci's original complaint was adequate; therefore, it did not
admit the allegations of the amended counterclaim simply
because it failed to reply to Manci's recasting of his
theories.
III.
1061370
16
Third, Manci argues that the trial court erred in
granting BK&W's motion to tax as costs expert-witness fees
incurred during BK&W's representation of Manci as taxable
costs against him. The sole authority Manci cites for this
allegation of error is Bundrick v. McAllister, 882 So. 2d 864
(Ala. Civ. App. 2003). Manci's argument is misplaced. In
Bundrick, the Court of Civil Appeals held that the successful
plaintiff could not tax the defendant with the costs the
plaintiff incurred hiring an expert witness necessary to
prosecute her claim against the defendant. However, in this
case, the expert-witness fees in question were incurred by
BK&W on behalf of Manci while he was BK&W's client, not in the
prosecution of BK&W's claims against Manci. Bundrick is
clearly distinguishable, and we affirm the trial court's
judgment on this ground as well.
IV.
Fourth, Manci argues that BK&W presented no admissible
evidence to support the award of damages against him.
However, Manci cites no authority and makes no argument as to
the admissibility of any evidence offered at the hearing.
Rather, it appears that Manci's argument is that the
1061370
Section 34-3-61(c), Ala. Code 1975, provides:
1
"Upon all actions for the recovery of real or
personal property, and upon all judgments for the
recovery of the same, attorneys-at-law shall have a
lien on the property recovered, for their fees,
superior to all liens but liens for taxes, which may
be enforced by said attorneys-at-law, or their
lawful representatives, as liens on personal and
17
contingent-fee agreement he entered into with BK&W should not
apply to the 60-acre plot of land that was part of the dispute
in
which
BK&W represented
Manci
against Arthur
Manci's estate.
The contingent-fee agreement states, in pertinent part:
"The undersigned, William A. Manci, employs the law
firm of [BK&W] to recover by suit or settlement any
assets from [the estate]. The undersigned agrees to
pay said firm for legal representation, a sum equal
to 33 1/3% of the value of all said assets or sums
awarded or recovered on his behalf in said
litigation or any related litigation, plus expenses,
for professional services rendered up to and
including the conclusion of (1) trial."
Manci argues that because he was ultimately adjudged to be the
rightful owner of those 60 acres, his title to those 60 acres
was not an asset the firm recovered on his behalf in the
estate litigation; therefore, he argues, BK&W "had no right to
claim an attorney's lien against Manci's 60 acres of land."
Manci's brief at 59. Manci bases this argument on § 34-3-
61(c), Ala. Code 1975, and three cases from this Court.
1
1061370
real estate, and the property recovered shall remain
subject to said liens, unless transferred to bona
fide purchasers without notice."
18
Manci quotes the following from Warren v. Hill, Hill, Stovall
& Carter, 252 Ala. 638, 639, 42 So. 2d 264, 265 (1949): "The
right of attorneys under [Title 46, Ala. Code 1940] section
64, subd. 3, supra [now codified at § 34-3-61(c)], to enforce
a lien on the land recovered by plaintiff is dependent upon
the proposition that the suit was for the land and resulted in
its recovery." He also cites, without quoting, Ex parte
Clanahan, 261 Ala. 87, 72 So. 2d 833 (1954), and King v.
Acuff, 218 Ala. 619, 119 So. 833 (1929), for the proposition
that "[a]n action filed by an attorney to quiet the title to
real property is not an action to recover the property for the
client and judgment quieting the title is not a judgment for
the recovery of the property." Manci's brief at 58. However,
Manci's reliance on these authorities is misplaced. In
Warren, the Court reached the conclusion that even though the
underlying action was to enforce a personal statutory right of
redemption, "neither the plaintiff nor defendant is in a
position to question the fact of a recovery of the land by
plaintiff." 252 Ala. at 640, 42 So. 2d at 265. Manci appears
1061370
19
to cite Clanahan for its citations to King, in which this
Court was asked to uphold a statutory attorney's lien against
his client's land to secure the payment of the attorney's fee
for successfully bringing a quiet title action on behalf of
the client. This Court held that "[t]here was no recovery of
property; there was only an authoritative and conclusive
declaration by the court that defendants there had no interest
in the property the subject of litigation. We are unable to
find in the statute any purpose to create a lien in such
case." 218 Ala. at 620, 119 So. at 833. However, the statute
and all the cases cited by Manci deal with an attorney's
attempt to enforce a statutory lien on real property. None
address the case presented here –- where an attorney has not
filed a statutory attorney's lien but has an interest in the
value of the subject property in reference to a contingent-fee
agreement. We note that the contingent-fee agreement between
Manci and BK&W entitles BK&W to a fee equal to the value of 33
1/3% of the assets or sums recovered by or awarded to Manci in
the litigation, not 33 1/3% of the assets themselves. We
further note that the trial court awarded BK&W a monetary sum,
not an interest or attorney's lien in any particular asset of
1061370
20
Manci's. "'"The determination of whether an attorney fee is
reasonable is within the sound discretion of the trial court
and will not be disturbed on appeal absent an abuse of that
discretion."'" Rabb v. Estate of Harris, 953 So. 2d 401, 405
(Ala. 2006) (quoting City of Birmingham v. Horn, 810 So. 2d
667, 681-82 (Ala. 2001), quoting in turn Ex parte Edwards, 601
So. 2d 82, 85 (Ala. 1992)). Manci's argument fails to
demonstrate that the trial court exceeded its discretion in
determining the amount of the attorney-fee award, and we
affirm the trial court's judgment on this ground.
V.
Fifth, Manci argues that the record does not support the
trial court's finding that Manci's responses of BK&W's
discovery requests were not made in good faith. However,
Manci fails to provide any citation to authority or argument
in support of this allegation. "'"Where an appellant fails to
cite to any authority for an argument, this Court may affirm
the judgment as to those issues, for it is neither this
Court's duty nor its function to perform all the legal
research for an appellant."'" Ex parte Barnett, [Ms. 1060174,
August 3, 2007] ___ So. 2d ___, ___ (Ala. 2007) (quoting
1061370
21
Birmingham News Co. v. Horn, 901 So. 2d 27, 28 (Ala. 2004),
quoting in turn Sea Calm Shipping Co. v. Cooks, 565 So. 2d
212, 216 (Ala. 1990)). Because Manci has not cited any
authority in support of his allegation, we affirm the judgment
of the trial court on this ground.
Conclusion
Because Manci has not shown that the trial court exceeded
its discretion in denying his motion to set aside the default
judgment and the dismissal of counterclaims, we affirm the
trial court's judgment.
AFFIRMED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | May 23, 2008 |
3700a237-f752-4f91-a03c-9a1cc6a44cd3 | Horton Homes, Inc. v. William Shaner | N/A | 1061659 | Alabama | Alabama Supreme Court | REL: 06/20/2008
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, 2007-2008
____________________
1061659
____________________
Horton Homes, Inc.
v.
William Shaner
____________________
1061741
____________________
H&S Homes, L.L.C.
v.
William Shaner
Appeals from Montgomery Circuit Court
(CV-04-1909)
1061659, 1061741
2
PER CURIAM.
William Shaner initiated arbitration proceedings against
H&S Homes, L.L.C., and Horton Homes, Inc., after a dispute
arose regarding Shaner's purchase from the H&S Homes sales
center in Montgomery of a mobile home manufactured by Horton
Homes. An arbitration hearing was conducted on June 5, 2007,
and, on July 6, 2007, the arbitrator issued a decision in
favor of Shaner, awarding him $487,500. Shaner then submitted
that award to the Montgomery Circuit Court, and, on July 10,
2007, the clerk of that court entered a judgment on the award.
On August 17, 2007, H&S Homes and Horton Homes filed separate
notices of appeal to this Court. We have consolidated those
appeals for the purpose of writing one opinion. For the
reasons that follow, we remand the cause to the circuit court.
I.
As we have previously noted, "the procedure for obtaining
jurisdiction to review an arbitration award under § 6-6-15,
Ala. Code 1975, is far from clear." Jenks v. Harris, [Ms.
1050686, March 14, 2008] ___ So. 2d ___, ___ (Ala. 2008)
(footnote omitted) (quoting order of this Court dismissing
Jenks's earlier appeals). We now write specifically to
1061659, 1061741
3
address two aspects of that procedure, namely: (1) the time
period for filing an appeal of an arbitration award, and (2)
the role of the circuit court in reviewing that arbitration
award.
We first note that no party has questioned the timeliness
of the notices of appeal filed by H&S Homes and Horton Homes.
However, we are nevertheless empowered to consider the issue
because "[t]he time limit prescribed for taking an appeal is
jurisdictional" and, if a notice of appeal is untimely, this
Court is without jurisdiction to review the judgment from
which the appeal is taken. Greystone Close v. Fidelity &
Guar. Ins. Co., 664 So. 2d 900, 902-03 (Ala. 1995). Both H&S
Homes and Horton Homes state that their appeals are brought
pursuant to § 6-6-15, Ala. Code 1975, and Rule 4, Ala. R. App.
P. Section 6-6-15 provides:
"Either party may appeal from an award under
this division. Notice of the appeal to the
appropriate appellate court shall be filed within 10
days after receipt of notice of the award and shall
be filed with the clerk or register of the circuit
court where the action is pending or, if no action
is pending, then in the office of the clerk or
register of the circuit court of the county where
the award is made. The notice of appeal, together
with a copy of the award, signed by the arbitrators
or a majority of them, shall be delivered with the
file of papers or with the submission, as the case
1061659, 1061741
4
may be, to the court to which the award is
returnable; and the clerk or register shall enter
the
award
as
the
judgement
of
the
court.
Thereafter, unless within 10 days the court shall
set aside the award for one or more of the causes
specified in Section 6-6-14, the judgment shall
become final and an appeal shall lie as in other
cases. In the event the award shall be set aside,
such action shall be a final judgement [sic] from
which an appeal shall lie as in other cases."
(Emphasis added.) Rule 4(a)(1), Ala. R. App. P., provides, in
pertinent 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[, Ala. R. App.
P.,] 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 ...."
H&S Homes and Horton Homes filed their separate notices
of appeal on August 17, 2007, 42 days after the arbitrator
entered his award in favor of Shaner, but presumably not
within 10 days after they received notice of that award. It
is apparent from the citations to Birmingham News Co. v. Horn,
901 So. 2d 27 (Ala. 2004), and Sanderson Group, Inc. v. Smith,
809 So. 2d 823 (Ala. Civ. App. 2001), in the statements of
jurisdiction in their respective briefs that H&S Homes and
Horton Homes timed the filing of their notices of appeals on
the belief that § 6-6-15, Ala. Code 1975, was modified by Rule
1061659, 1061741
5
4, Ala. R. App. P., to allow 42 days for filing an appeal from
an arbitration award. See Sanderson Group, 809 So. 2d at 827
("Although § 6-6-15 requires that an appeal be taken within 10
days, Rule 4 expanded that period to 42 days."). In
Birmingham News, this Court discussed, but did not explicitly
affirm, the Court of Civil Appeals' analysis of § 6-6-15 and
Rule 4 in Sanderson Group, stating:
"In that case, the Court of Civil Appeals considered
the timeliness of an appeal from an arbitration
award that had been filed within 42 days of the
entry of the final judgment on the award but not
within 10 days of the entry of the final judgment.
The Court of Civil Appeals determined that the
effect of the 42-day appeal period allowed by Rule
4, Ala. R. App. P., was to expand the 10-day period
specified under § 6-6-15, so that the appeal in that
case was timely filed."
901 So. 2d at 41. However, we also stated in Birmingham News
that "[w]e note further that Appendix II ('Statutes and Rules
Superseded') and Appendix III ('Statutes Modified') to the
Rules of Appellate Procedure do not list § 6-6-15 as among
those statutes which have been superseded or modified by those
rules." 901 So. 2d at 42. This statement was misleading,
however, as Appendix III ("Statutes Modified") does include
the predecessor to § 6-6-15 –– Tit. 7, § 843, Code of Ala.
1940 –– as being among those statutes that were modified by
1061659, 1061741
6
Rule 4(a) to expand the time for taking an appeal from 10 to
42 days. Nevertheless, based at least in part on Birmingham
News, the Court of Civil Appeals subsequently issued an
opinion holding that an appeal of an arbitration award was
untimely if the notice of appeal was not filed within the 10-
day period specified by § 6-6-15:
"The arbitrator dismissed [the appellant's]
claim, with prejudice, on February 22, 2006.
Pursuant to § 6-6-15, [the appellant] had 10 days
after receiving notice of the arbitrator's award
dismissing the claim in which to file his appeal.
Although the record on appeal does not indicate when
[the appellant] received notice of the arbitrator's
award, he had to have received notice no later than
March 6, 2006, the date [the appellant] filed a
motion challenging that award. [The appellant] did
not file his notice of appeal until August 7, 2006,
well after the expiration of the 10-day period
specified under § 6-6-15 for filing an appeal from
an arbitrator's award. Therefore, pursuant to the
plain language of § 6-6-15, [the appellant's] appeal
is untimely.
"We recognize that Rule 4(a)(1), Ala. R.App. P.,
provides:
"'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[, Ala. R. App. P.,]
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....'
1061659, 1061741
7
"In Birmingham News Co. v. Horn, 901 So. 2d 27, 42
(Ala. 2004), our supreme court noted that 'Appendix
II ("Statutes and Rules Superseded") and Appendix
III ("Statutes Modified") to the Rules of Appellate
Procedure do not list § 6-6-15 as among those
statutes which have been superseded or modified by
those rules.' The Supreme Court in Horn did not
conclude that Rule 4(a)(1) extended from 10 days to
42 days the period for filing an appeal from an
arbitration award under § 6-6-15. However, even if
Rule 4(a)(1) does extend the period for filing such
an appeal, we note that [the appellant] failed to
file his appeal within 42 days of his receiving
notice of the arbitrator's award.
"Because [the appellant] did not timely file his
appeal pursuant to the filing requirements of §
6-6-15, we dismiss the appeal."
Chambers v. Courtesy Pontiac-GMC Trucks, Inc., 969 So. 2d 167,
168-69 (Ala. Civ. App. 2007).
To eliminate any confusion, we now explicitly recognize
that Rule 4 does operate to expand the statutory time period
for taking an appeal of an arbitrator's award from 10 days
from the date of receipt of notice of the award to 42 days
from that date. To the extent Chambers holds otherwise, it is
overruled. Likewise, any contrary dicta in Birmingham News
concerning the time period in which to appeal a judgment
entered on an arbitration award is overruled. The appeals of
H&S Homes and Horton Homes are indeed timely.
1061659, 1061741
8
II.
We next clarify the role of the circuit court in
reviewing an arbitration award. The recognition in § 6-6-15
of the availability of relief based on the grounds set forth
in § 6-6-14 is couched in terms of relief in the trial court.
Section 6-6-15 provides that the clerk's entry of judgment on
the award when it is filed in the circuit court becomes final
after 10 days, if during that 10-day period the circuit court
has not set aside the award. At that point, "the judgment
shall become final and an appeal shall lie as in other cases."
§ 6-6-15. Because under § 6-6-15 a notice of appeal will have
been filed by the party dissatisfied with the award, the
reference to "an appeal shall lie as in other cases" in the
context of the circuit court's failure to set aside the award
triggers the applicability of procedures that come into play
after the filing of a notice of appeal. Section 6-6-15
further provides for the possibility that the circuit court
may set aside the award, stating that "such action shall be a
final judgement from which an appeal shall lie as in other
cases." In this scenario, where the award has been set aside
and the party dissatisfied with the award has obtained relief,
1061659, 1061741
9
the reference to "a final judgement from which an appeal shall
lie as in other cases" necessitates the filing of a notice of
appeal by the party seeking to uphold the award. An appeal of
an order setting aside an award filed within 42 days of the
circuit court's setting aside the award as provided by Rule
4(a), Ala. R. App. P., would be timely.
In Birmingham News, the party dissatisfied with the
arbitration award filed in the circuit court a motion to
vacate or set aside the award. The circuit court took no
action, a scenario contemplated by § 6-6-15 as sufficient to
convert the award to a final judgment 10 days after the entry
of judgment by the clerk. In this proceeding, however,
Shaner, the party who prevailed in the arbitration proceeding,
submitted a copy of that award to the circuit court, and the
circuit clerk –– not the circuit court –– entered the
judgment. Neither H&S Homes nor Horton Homes filed anything
in the circuit court to invoke the circuit court's authority
to set aside the judgment within the period provided in § 6-6-
15, after which the judgment would become a final judgment
from which "an appeal shall lie as in other cases." See § 6-
6-15 ("Thereafter [after entry by the clerk], unless within 10
1061659, 1061741
10
days the court shall set aside the award for one or more of
the causes specified in Section 6-6-14, the judgment shall
become final and an appeal shall lie as in other cases.").
Instead, H&S Homes and Horton Homes filed in the circuit court
notices of appeal from the arbitration award to this Court.
The failure of H&S Homes and Horton Homes to seek the
circuit court's review of the arbitration award by means of a
motion to alter, amend, or vacate was understandable in light
of H&S Homes' prior experience with this Court in H&S Homes,
L.L.C. v. McDonald, 910 So. 2d 79 (Ala. 2004). In McDonald,
which was litigated by the same attorneys who are representing
H&S Homes and Shaner in the present appeal, H&S Homes sought
appellate review of an arbitration award that had been
returned against it and in favor of Christina McDonald, who
had made allegations of fraud similar to those Shaner now
makes. On appeal, McDonald argued that H&S Homes' appeal
should be dismissed because H&S Homes did not first challenge
the arbitration award through a motion to vacate filed in the
circuit court. At that time, this Court rejected that
argument and held that a party did not need to file in the
1061659, 1061741
We note that McDonald did prevail in her appeal for other
1
reasons.
11
circuit court a motion to vacate an arbitration award before
appealing the award, stating:
"[McDonald] contends that this appeal is due to
be dismissed because H&S Homes did not challenge the
arbitration award through a motion to vacate the
arbitration award pursuant to 9 U.S.C. § 12 before
it filed its appeal to this Court. However, such a
motion is not required before an arbitration award
can be appealed in Alabama. See Ala. Code 1975, §
6-6-15 ('Either party may appeal from an award under
this
division.
Notice
of
the
appeal
to
the
appropriate appellate court shall be filed within 10
days after receipt of notice of the award and shall
be filed with the clerk ... of the circuit court
where the action is pending....'). H&S Homes filed
its notice of appeal within 10 days after it
received notice of the award. The notice of appeal
filed by H&S Homes became effective when the
judgment on the arbitrator's award was entered; it
was thus timely filed. Birmingham News Co. v. Horn,
901 So.2d 27, 42 (Ala. 2004)."
910 So. 2d at 80-81. Upon further review, we conclude that
our construction of § 6-6-15 in McDonald was erroneous and
that case is overruled.
1
The judgment entered by the circuit clerk on the
arbitrator's award pursuant to § 6-6-15 is a conditional one;
it does not become a final appealable judgment until the
circuit court has had an opportunity to consider a motion to
vacate filed by a party seeking review of the arbitration
1061659, 1061741
We reiterate that a party desiring judicial review of an
2
arbitration award in a proceeding subject to the Federal
Arbitration Act ("FAA") is limited to arguments based on those
grounds enumerated in 9 U.S.C. § 10, which encompasses the
grounds of review listed in § 6-6-14, Ala. Code 1975. In
Birmingham News we augmented those grounds with the additional
ground of manifest disregard of the law. Of course, at the
time we decided Birmingham News we did not have the benefit of
Hall Street Associates, L.L.C. v. Mattel, Inc., ___ U.S. ___,
128 S.Ct. 1396 (2008), in which the United States Supreme
Court rejected the availability of manifest disregard of the
law as a basis for vacating an award in proceedings subject to
the FAA.
12
award. A party seeking review of an arbitration award is
required to file a motion to vacate during this period --
while the judgment entered by the circuit clerk remains
conditional -- in order to preserve its ability to later
prosecute that appeal to an appellate court once the judgment
becomes final. This is so not only because § 6-6-15
contemplates a party's first seeking relief from an award in
the circuit court, but also because "[a]ny grounds not argued
to the trial court, but urged for the first time on appeal,
cannot be considered." Lloyd Noland Hosp. v. Durham, 906 So.
2d 157, 165 (Ala. 2005).2
Section 6-6-15 provides that the judgment entered by the
circuit clerk is to remain conditional for only 10 days, after
which it "shall become final" unless it has been, during that
1061659, 1061741
Justice Murdock's dissenting opinion would transform the
3
terse statement, "Rule 4(a) -- Forty-two days," in Appendix
III, Statutes Modified, into a funnel through which flows all
aspects of Rule 4(a), Ala. R. App. P., including subparagraph
(a)(3) thereof, with its provision relating to the effect of
a motion pursuant to Alabama Rules of Civil Procedure 50, 52,
55, or 59, on the time for filing a notice of appeal. Even if
such wholesale incorporation was intended by this brief
statement in the appendix, there would be no field of
operation for Rule 4(a)(3) in this proceeding because the
motion practice at issue here is a creature of § 6-6-15, not
Rule 50, 52, 55, or 59. Consequently, we must resort to the
13
10-day period, set aside by the circuit court. However, this
short time span -- 10 days -- is impractical in application
and not consistent with the Alabama Rules of Civil Procedure
that govern postjudgment motions. It is unreasonable to
expect a party to file a motion to vacate, the opposing party
to respond, and the circuit court to then thoughtfully
consider their
arguments all within a 10-day period.
Accordingly, we modify that timeline established in § 6-6-15
as follows to make it consistent with the Alabama Rules of
Civil Procedure and to allow for a more meaningful review by
the trial court.
Rule 59(e), Ala. R. Civ. P., provides that a party has 30
days after the entry of judgment to file a motion to alter,
amend, or vacate that judgment. Accordingly, borrowing from
the spirit of Rule 59(e), we hold that a party desiring
3
1061659, 1061741
spirit of Rule 59 in our analysis.
14
judicial review of an arbitration award pursuant to § 6-6-15
must file in the appropriate circuit court a motion to alter,
amend, vacate, or set aside the award within 30 days of filing
the notice of appeal of the arbitration award and the clerk's
entry of the conditional judgment based thereon. If that
motion is timely filed, the circuit court shall then have 90
days, unless that time is extended by the consent of all the
parties, to dispose of the motion. See Ala. R. Civ. P. 59.1
("A failure by the trial court to dispose of any pending post-
judgment motion within [90 days], or any extension thereof,
shall constitute a denial of such motion as of the date of the
expiration of the period.").
If the circuit court grants the motion to vacate during
this 90-day period, then the nonmovant has 42 days from the
order granting the motion in which to file in the circuit
court a notice of appeal of the court's judgment. If the
circuit court denies the motion to vacate within 90 days or
allows the motion to be denied by inaction after 90 days, then
the conditional judgment entered by the circuit clerk becomes
1061659, 1061741
This Court took a similar approach in Jenks, supra, in
4
which a party who lost in arbitration successfully moved the
15
final, and the appeal is processed based on the prior notice
of appeal.
III.
Because the failure of H&S Homes and Horton Homes to file
a motion to vacate the award with the circuit court was
presumably in reliance on McDonald, it would hardly be just to
deny relief in their appeals on that basis. For that reason,
we now reverse the final judgment resulting from the passage
of 10 days from the circuit clerk's entry of a conditional
judgment, leaving in place the conditional judgment, and
remand the cause for H&S Homes and Horton Homes to file
motions to vacate the award with the circuit court within 30
days of the date of this opinion. If, within the following 90
days, the circuit court denies those motions or otherwise
allows the conditional judgment entered by the circuit clerk
to become final by default, H&S Homes and Horton Homes may
engage in further appellate proceedings that permit us to
review the circuit court's action with new briefs and a record
that includes grounds asserted in any subsequently filed
motions to vacate.
4
1061659, 1061741
circuit court to vacate the award entered against it. The
nonmovants then separately appealed to this Court (case nos.
1031771 and 1031815); however, after noting that the circuit
clerk had never entered judgment on the award, we dismissed
the appeal with instructions for the circuit clerk to enter
judgment on the arbitration award, after which the circuit
court would again have the opportunity to rule on a properly
made motion to vacate. The circuit clerk then entered
judgment on the award, and the circuit court again granted a
motion to vacate. The nonmovant then filed a new appeal, and
we considered the merits of its argument.
16
1061659 -- REVERSED AND REMANDED.
1061741 -- REVERSED AND REMANDED.
Lyons, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., and See, J., concur in the result.
Murdock, J., concurs in the judgments of reversal and
remand only, and dissents as to the rationale.
1061659, 1061741
The statute, albeit with periodic adjustment, has been
5
with us at least since the 1876 Code.
17
SEE, Justice (concurring in the result).
I commend both the per curiam opinion and Justice
Murdock's special writing for their well-considered analyses
of § 6-6-15, Ala. Code 1975. I believe that this is the third
time I have attempted to make sense of the language of that
statute in light of modern practice. I have in each instance
5
worked myself through the possible intentions of the statute
until "I have met myself coming home."
I believe that the per curiam opinion has reached a
practical result that resolves this case in a fair, just, and
reasonable manner. Therefore, I concur in the result.
Justice Murdock has done, I believe, a masterful job of
analyzing § 6-6-15 in light of Rule 4(a), Ala. R. App. P.,
that produces a consistent system under which appeals of
arbitration awards could proceed.
What I hope will happen is that our civil and appellate
rules committees will review § 6-6-15 and develop a rule that
addresses the intent of the statute in light of the needs of
contemporary practice in arbitration matters and that the
committees will present this Court with a proposed rule that
1061659, 1061741
18
we can adopt before we are faced with the next case for which
§ 6-6-15 is not so much an aid as an impediment.
1061659, 1061741
Judge Crawley authored the main opinion in Sanderson
6
Group; Presiding Judge Yates, Judge Thompson, and Judge
Pittman concurred in the result.
19
MURDOCK, Justice (concurring in the judgments of reversal and
remand only, and dissenting as to the rationale).
A.
In Sanderson Group, Inc. v. Smith, 809 So. 2d 823 (Ala.
Civ. App. 2001), while serving as a judge on the Court of
Civil Appeals, I wrote as follows with regard to the impact of
Rule 4(a), Ala. R. App. P., on § 6-6-15, Ala. Code 1975:
"I concur with Judge Crawley's conclusion that
Smith's appeal is timely.[ ] I write separately as
6
to this issue to note my understanding that Rule
4(a), Ala. R. App. P., modifies more than just the
number of days for appealing an arbitrator's award.
"Rule 4(a), Ala. R. App. P., provides, in
pertinent part:
"'(1) 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[, Ala. R. App.
P.,] 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 ....
"'(2) If a timely notice of appeal is
filed by a party, any other party may file
a notice of appeal within 14 days (2 weeks)
of the date on which the first notice of
appeal was filed, or within the time
1061659, 1061741
20
otherwise
prescribed
by
this
rule,
whichever period last expires.'
"(Emphasis added.) In the case of an arbitrator's
award, the 'judgment or order appealed from' is the
final judgment of the court based on that award, not
the award itself. Moss v. Upchurch, 278 Ala. 615,
619, 179 So. 2d 741, 744-45 (1965).
"While § 6-6-15, Ala. Code 1975, still provides
the right of appeal from a judgment based on an
arbitrator's award and makes Sanderson's appeal one
'permitted by law as of right,' the time for taking
that
appeal
has
been
modified
by
...
the
above-quoted language in Rule 4(a)(1), Ala. R. App.
P. As a result, not only has the time period for an
appeal in connection with an arbitration award been
expanded from the 10 days provided under § 6-6-15 to
42 days, that time period now begins to run under
Rule 4(a)(1) from the date of entry of final
judgment by the circuit court based on the
arbitrator's award, rather than from the date of
receipt of the arbitrator's award as stated in
§ 6-6-15. Likewise, the provision of Rule 4(a)(2)
allowing a notice of cross-appeal within 14 days of
the date of a notice of appeal by another party is
applicable."
809 So. 2d at 832 (Murdock, J., concurring specially in part,
concurring in the result in part, and dissenting in part).
My point is simply this: By its terms Rule 4(a) either
applies to appeals from arbitration awards, or it does not.
If by its terms it applies, then by those same terms all of it
applies. This would include all of Rule 4(a)(1), all of
Rule 4(a)(2), and, for that matter, all of Rule 4(a)(3)-(5).
1061659, 1061741
Rule 4(a)(1) simply begins as follows: "Except as
7
otherwise provided herein [and no exception for appeals from
arbitration awards is otherwise provided], in all cases in
which an appeal is permitted by law as of right to the supreme
court or to a court of appeals ...." (Emphasis added.)
Rule 54, Ala. R. Civ. P., defines "judgment" with
8
reference to decrees or orders from which appeals lie. The
judgment from which an appeal lies following an arbitration
proceeding is the judgment of the circuit court based on, or
setting aside, the arbitration award.
21
There is nothing in the text of Rule 4(a) that allows us to
pick and choose which subsections, which sentences, or,
indeed, which words or phrases, will apply to such an appeal.7
More specifically, the "42 days" referenced in Rule 4(a)
is not a free-floating term that can be surgically removed
from Rule 4(a) and surgically implanted into § 6-6-15 in place
of only the words "10 days." The same passage that provides
us with the 42-day time period also specifically tells us when
that time period is to begin running. In other words,
Rule 4(a) explicitly defines the "42 days" to which it refers
as a particular 42 days. It is the "42 days [from] the date
of the entry of the judgment or order appealed from." I do
8
not understand how we can, or why we see a need to, ignore
that fact. The manner in which the majority applies Rule 4(a)
to § 6-6-15 today is tantamount to rewriting Rule 4(a) so as
1061659, 1061741
22
to read that a notice of appeal shall be filed "within 42 days
(6 weeks) of [whatever starting date might be provided by some
heretofore applicable rule or statute or, if there is no such
other rule or statute, from] the date of the entry of the
judgment or order appealed from."
It is true enough that the table that constitutes the
bulk of "Appendix III [to the Alabama Rules of Appellate
Procedure].
Statutes
Modified"
contains
the
following
entry
in
the left-hand column: "§ 843 -- appeals to Supreme Court or
Court of Appeal from award of arbitrators. Time for taking
appeal -- 10 days"; and that the corresponding entry in the
right-hand column contains only the following reference:
"Rule 4(a) -- Forty-two days." To the extent the Court today
has based its decision on the fact that the entry in the
right-hand column in this table specifically references
"Forty-two
days"
without also referencing the remainder
of
the
passage of Rule 4(a) in which that time period is defined, I
note simply that this table is not the rule. It does not have
the force of law. Ex parte Johnson, 485 So. 2d 1098 (Ala.
1986); cf. Alexander v. State, 475 So. 2d 625, 628 (Ala. Crim.
App. 1984) (recognizing that Table I at the end of Vol. 12 of
1061659, 1061741
Consistent with this understanding of Appendix III is the
9
fact that the appendix expressly begins by qualifying the
table contained therein as follows:
"Some statutes which create the right of appeal in
certain cases also provide for the time within which
23
the Alabama Code "'indicates the disposition of sections of
the 1975 Alabama Code which are affected by the adoption of'
the new Criminal Code" and that "this Table does not have the
force of law and [we] only refer to it as additional
authority, of whatever weight to support our conclusion.").
It was prepared by the Appellate Rules Committee simply to
provide a helpful index to the multitude of statutes that were
modified with the adoption of the Alabama Rules of Appellate
Procedure. Ex parte Johnson, 485 So. 2d at 1105-06. As such,
it purports only to provide a reference "list" for
practitioners and judges of the preexisting statutes altered
by those rules. Id. It does not purport to detail every
manner in which
every
preexisting
statute was
altered,
because
to do so would require a virtual repeat of the rule within the
table itself. Such a table is by its nature inherently a
summary and is not intended to countermand or restrict express
passages in the very rules as to which the table is merely a
guide. Id.
9
1061659, 1061741
the appeal must be taken, the manner of taking the
appeal and the procedure on appeal. Where either
the time for taking the appeal, the manner of taking
the appeal or the procedure on appeal in such
statutes is materially changed by the Rules the
statutes are listed under Statutes Modified."
Appendix III, Ala. R. App. P. To view the Rules of Appellate
Procedure as modifying preexisting statutes such as § 6-6-15
only to the extent explicitly referenced in Appendix III would
be to elevate the text of the guide to the Rules over the
Rules themselves and would distort the meaning of the
introductory language to Appendix III.
24
Furthermore, the interpretation adopted by the main
opinion can only be based on the questionable premise that the
authors of Rule 4(a), Ala. R. App. P., intended that rule to
override existing rules and statutes so as to create a uniform
rule as to the time for taking an appeal and when that time
will begin to run in all types of cases, except one. I see no
such discrimination in the text of Rule 4(a).
A much more plausible explanation is that the Rules
Committee simply overlooked the fact that there was embedded
in the second sentence of § 6-6-15 a starting date for the
appeal period other than the entry of the trial court's
judgment. It is more likely that members of the committee
simply did not pick up on this (or perhaps simply were
laboring under the same "far-from-clear" understanding of the
1061659, 1061741
25
operation of § 6-6-15 as is referenced at the outset of the
main opinion) than it is to read the table as some sort of
binding restriction on the full and plain meaning of the text
of the Rules of Appellate Procedure themselves. This Court's
decision in Ex parte Johnson is instructive:
"[Rule 21, Ala. R. App. P.,] does not mention the
verification requirement contained in § 6-6-640,
but, in all other respects, appears to restate and
expand upon all the requirements set out in
§ 6-6-640, thus eliminating any effect that statute
may have had as to mandamus petitions filed in
appellate courts. However, respondents point out
that § 6-6-640 is not listed among the statutes and
rules superseded or statutes modified by the Alabama
Rules of Appellate Procedure. Nevertheless, we find
that the caveat contained in the Committee Comments
appearing before the lists of statutes and rules
superseded or modified by the Alabama Rules of Civil
Procedure is equally applicable to the lists
prepared by the Rules Committee for the Alabama
Rules of Appellate Procedure, although the latter
lists are not preceded by a Committee Comment. That
comment preceding the civil rules states in part:
"'When the Federal Rules went into
effect, no list of superseded or modified
statutes was made available. Prof. Moore
reports as follows:
"'"While a list of such
statutes
would
have
been
convenient and helpful to the
bar, the compilation of such a
list would have been a most
arduous task, and attended by the
constant danger of overlooking
some statutes, as there was a
1061659, 1061741
26
multitude
of
procedural
provisions scattered throughout
the
United
States
Code,
and
imbedded in long statutes, often
in the most unexpected places.
Moreover, it is not always easy,
in the absence of a case raising
the precise point, to determine
whether a particular provision is
wholly
or
only
partially
superseded, or merely modified to
some
extent.
In
the
great
majority of cases no hardship was
caused by the absence of a list
of
superseded
or
modified
statutes, as the effect of the
Federal Rules on the important
procedural statutes was clear
without any express statement to
that
effect;
and
in
most
situations the Committee's Notes
are helpful." (2 Moore's Federal
Practice, Para. 1.02[5], p. 129
[2d ed.1970])
"'With due regard to the extreme
difficulty in compiling such a list as
noted by Prof. Moore, the most reasonable
course for Alabama practice and the
requirement of Act 1311, dictated the
promulgation
of
this
Appendix
of
Superseded
Rules and Statutes. While this Appendix
should be entitled to greater authority
than the commentary, the bench and bar
should
apply
common
sense
in
its
application. The Committee has sought to
eliminate as many unedifying trips to the
Court
as
possible
on
questions
of
reconciling the new rules to the Alabama
Code. However, it is not beyond the realm
of possibility that common sense will
dictate a second look at that which has
1061659, 1061741
27
been broadly labeled "superseded" or that
which may have been inadvertently omitted
from this Appendix. This is by no means an
invitation
to
engage
in
repeated
challenges
to the validity of this Appendix but is
simply a practical admonition that must
inevitably accompany an Appendix of this
nature.'
"In short, the Rules Committee may have missed some,
and it appears it did in the case of § 6-6-640, if
the parties are correct in assuming that § 6-6-640
otherwise would have applied to petitions filed in
the appellate courts. Thus, we hold that the
verification requirement of § 6-6-640 does not apply
as to mandamus petitions governed by the Alabama
Rules of Appellate Procedure, and the petition is
not due to be dismissed because of petitioner's
failure to have it verified."
485 So. 2d at 1105-06 (emphasis added).
Contrary to the assertion in footnote 3 of the main
opinion, I in no way suggest that the reference to Rule 4(a)
in the table in Appendix III serves as a "funnel" for the
provisions of Rule 4(a) or, for that matter, any other rule of
appellate procedure or any rule of civil procedure that by its
terms became applicable to appeals of arbitration awards upon
the enactment of those respective rules in 1975 and in 1973,
respectively. ___ So. 2d at ___. Indeed, the point I make is
the converse of that suggested by the footnote. It is the
rule itself that governs -- in its entirety -- and, contrary
1061659, 1061741
28
to the main opinion's reliance on Appendix III, Rule 4(a) is
neither filtered by nor funneled through, nor in any other way
restricted or expanded by, the summary entries in the table
found in Appendix III, which has no force of law.
B.
With the foregoing in mind, the following describes my
reading of § 6-6-15, the manner in which it operated before
its operation was modified by Rule 4(a), and how Rule 4(a) did
in fact modify that statute:
1. The second sentence of § 6-6-15 begins as follows:
"Notice of the appeal to the appropriate appellate court shall
be filed within 10 days after receipt of notice of the award
...." Thus, the notice of appeal has to be filed before there
was a final judgment that would support an appeal. The last
three sentences of § 6-6-15, however, provide the mechanism by
which the arbitration award becomes a final, appealable
judgment of the trial court, thus making the appeal viable.
The third sentence of § 6-6-15 states that the "[t]he
notice of appeal, together with a copy of the award, ... shall
be delivered with the file of papers or with the submission,
as the case may be, to the court to which the award is
1061659, 1061741
29
returnable ...." Reading this provision in conjunction with
the time period prescribed in the second sentence of § 6-6-15
for filing a notice of appeal means that the copy of the award
and related papers were required to be filed with the trial
court within the same 10 days prescribed for filing a notice
of appeal. Although Rule 4(a) now supersedes § 6-6-15 as to
the time for filing a notice of appeal, nothing in Rule 4(a)
supersedes what effectively was a 10-day period for filing the
arbitrator's award and related papers with the trial court,
and that period remains unaltered by the adoption of
Rule 4(a).
2. The provision in § 6-6-15 that the notice of appeal
"shall be filed with the clerk or register of the circuit
court" is no different than the general rule as to the place
for filing a notice of appeal as stated in Rule 4(a)(1), Ala.
R. App. P.
3. The penultimate sentence of § 6-6-15 specifically
provides that, within 10 days of the filing of the notice of
appeal and a copy of the award, the court may "set aside the
award for one or more of the causes specified in Section
6-6-14 ...." If it does set the award aside on one of those
1061659, 1061741
Rule 59 was adopted in 1973, well after the enactment of
10
§ 6-6-15, just as Rule 4(a), Alabama Rules of Appellate
Procedure, was adopted after the enactment of § 6-6-15. Also,
see the discussion from Ex parte Johnson in Part A, supra.
30
specific grounds, "the judgment shall become final and an
appeal shall lie as in other cases." Likewise, if the trial
court does set aside the award, "such action shall be a final
judgement from which an appeal shall lie as in other cases."
Thus, § 6-6-15 prescribes the manner in which an
arbitrator's award shall become a final, appealable judgment
of the circuit court itself. Judgments of circuit courts are
governed by Rule 59, Ala. R. Civ. P. By its terms, Rule 59
10
supplies a mechanism for postjudgment review by the circuit
court of a "judgment" based on an arbitration award, just as
it supplies a method of postjudgment review by the trial court
of any other "judgment." Again, § 6-6-15 expressly states
that "an appeal shall lie as in other cases" from a circuit
court's judgment based upon, or setting aside, an arbitration
award. Until such a final judgment is entered, Rule 59 has no
field of operation in an arbitration proceeding. Once a
judgment is entered in the circuit court, however, Rule 59(e),
by its terms, applies to that judgment.
1061659, 1061741
The main opinion states in footnote 3 that "there would
11
be no field of operation for Rule 4(a)(3) in this proceeding
because the motion practice at issue here is a creature of
§ 6-6-15, not Rule 50, 52, 55, or 59." ___ So. 2d at ___. It
is the opinion being issued by this Court today, however, that
is defining "the motion practice at issue here." As the main
opinion explains, H & S Homes, in reliance on an earlier
decision of the Court, engaged in no "motion practice" in this
case. It is this Court's opinion that is advising the parties
as to what types of motions will be permitted in this case on
remand and in future cases (unless and until our procedural
rules are further amended). My point is simply that we
should recognize that the Alabama Rules of Civil Procedure and
the Alabama Rules of Appellate Procedure already operate to
provide directly, rather than "in spirit," rules that are
applicable in this and in other cases and that, at least in
one respect, provide a fairer time limit for motion practice
than the rule crafted in the main opinion. See Part C, infra.
31
Rule 59(e) provides that "[a] motion to alter, amend, or
vacate the judgment shall be filed not later than thirty (30)
days after entry of the judgment." Moreover, Rule 4(a)(3) of
the same Rule of Appellate Procedure that supplies the 42-day
time limit, which this Court construes today as applying to
appeals from judgments based on arbitration awards, expressly
provides
that
"[t]he
filing
of
a post-judgment
motion
pursuant
to Rules 50, 52, 55, or 59 of the Alabama Rules of Civil
Procedure (ARCP) shall suspend the running of the time for
filing a notice of appeal." As noted earlier, I see no less
basis for reading Rule 4(a)(3) as modifying § 6-6-15 than for
reading Rule 4(a)(1) as modifying § 6-6-15.
11
1061659, 1061741
32
C.
A few additional thoughts.
The reasonableness of the interpretation of Rule 4 of the
Alabama Rules of Appellate Procedure provided in this special
writing, as compared with the interpretation reflected in the
main opinion, is further bolstered by the following fact: The
foregoing interpretation, unlike that in the main opinion,
does not result in a 42-day-appeal window that shifts
depending on (i) the nature of the final judgment entered in
the trial court or (ii) which party seeks to appeal from that
judgment. In every other type of case with which I am
familiar, the time for filing a notice of appeal is a fixed
period that runs from a fixed point -- the entry of a final
judgment by the trial court -- regardless of the content of
that judgment or which party is appealing therefrom. Under
the approach adopted by the main opinion, as explained
therein, the window of opportunity for filing a notice of
appeal would shift depending on which party was filing the
notice of appeal and what the procedural history of the case
was before the filing of the notice of appeal. ___ So. 2d at
___. In the case of a final judgment of the circuit court
1061659, 1061741
It is unclear from the main opinion what degree of
12
inconsistency
would
trigger
this
alternative
time
measurement.
33
that is fully in accord with the arbitrators' award, a
dissatisfied party's 42 days would run from the date it
received notice of that award; the result would be that such
a party could have as little as 22 days after entry of the
final judgment in order to file a notice of appeal (after
deducting the 10 days leading up to the filing of an award
with the trial court and an additional 10 days for the trial
court to act thereon). On the other hand, as to a judgment
that is inconsistent with the arbitrators' award, a party
12
dissatisfied with the final judgment would measure its time
for taking an appeal from the final judgment of the circuit
court and thus would have a full 42 days thereafter to file
its notice of appeal. I see no basis in the text of Rule 4(a)
for such an unusual result.
In addition, I see no basis in the text of § 6-6-15 for
the assertion in the main opinion that the conditional
judgment entered by the circuit clerk on the arbitrator's
award does not become a final, appealable judgment until the
trial court has had an opportunity to consider a motion to
vacate filed by a party seeking review of the arbitration
1061659, 1061741
34
award. A party may be barred by our tenets of judicial review
from filing an effective appeal because it will not have
raised a ground for reversal in the trial court. The
resulting restriction, however, derives from such tenets, not
from the text of § 6-6-15.
Finally, the approach urged in this special writing has
the advantage of applying Rule 59, not the "spirit of
Rule 59." This in turn yields the advantage of measuring the
30 days for the filing of a Rule 59(e) motion from the final
judgment of the trial court, the same triggering event for the
running of that 30-day period that Rule 59 applies in every
other type of case. Further still, and perhaps most
importantly in this respect, by understanding Rule 4(a)(3),
Ala. R. App. P., and, concomitantly, Rule 59, Ala. R. Civ. P.,
to operate together to supersede § 6-6-15 and allow a
reasonable time period for the filing and consideration of
postjudgment motions, we are able simply to apply existing,
general rules that have been promulgated using normal
procedures, rather than specially fabricating a modification
1061659, 1061741
Section 150, Ala. Const. 1901, clearly gives this Court
13
the authority to "make and promulgate rules governing the
administration of all courts and rules governing practice and
procedure in all courts." That is what this Court did in
promulgating Rule 59. I question whether this authority to
act administratively to promulgate rules, being legislative or
quasi-legislative in nature, is part of our judicial authority
to decide a specific case.
35
of our statutes and rules in the context of an otherwise
purely judicial decision.13
D.
Based on the foregoing, I concur in remanding this cause
to the trial court. I dissent from the rationale of the main
opinion
to
the
extent
it
is
inconsistent
with
the
understanding of the Alabama Rules of Appellate Procedure and
Appendix III thereto discussed herein. | June 20, 2008 |
49ae9afd-a2de-4846-bf28-39a8c7c76bb8 | Brian Fausnight v. Ronald G. Perkins and Naomi Perkins | N/A | 1060171 | Alabama | Alabama Supreme Court | The complaint in this case names "Laurel Creek Log
1
Homes," as well as Brian Fausnight, as a defendant; papers
filed in this Court name "Laurel Creek Log Homes" as an
appellant. From our review of the record, it appears that
"Laurel Creek Log Homes" is merely the name under which Brian
REL: 05/23/2008
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, 2007-2008
____________________
1060171
____________________
Brian Fausnight
v.
Ronald G. Perkins and Naomi Perkins
Appeal from Elmore Circuit Court
(CV-06-2)
MURDOCK, Justice.
Brian Fausnight appeals from a partial summary judgment
1
1060171
Fausnight, as an individual, does business and, thus, is not
subject to suit or to the entry of a judgment for or against
it.
2
entered by the Elmore Circuit Court in favor of Ronald G.
Perkins and Naomi Perkins. We reverse.
I. Facts and Procedural History
In
2004,
the
Perkinses
contacted
Fausnight
about
constructing a log house for them on property they owned.
After they reached an agreement on building the house,
Fausnight purchased a building permit from the Town of
Eclectic and began work on the house. Fausnight was not
licensed to build houses, as required by Ala. Code 1975, § 34-
14A-5. The Perkinses paid Fausnight $195,359.83 for the
construction of the house.
After Fausnight completed the house, certain repairs were
needed. Although Fausnight intended to make the repairs,
before he could do so the Perkinses sued him.
In their complaint, filed on January 5, 2006, the
Perkinses
asserted
six
counts
against
Fausnight:
(1) fraudulent suppression of the fact that Fausnight was not
a
licensed
home
builder;
(2)
breach
of
contract;
(3) negligence; (4) wantonness; (5) breach of contract by
1060171
3
failing to complete construction of the house by October 1,
2004; and (6) promissory fraud. In an amendment to their
complaint, the Perkinses added a seventh count for a refund
of their payments to Fausnight on the basis that, because
Fausnight was not a licensed home builder, he was not
entitled to keep any payments made to him for the
construction of the Perkinses' house. In his answer to the
complaint and to the amended complaint, Fausnight denied the
material allegations of the Perkinses' complaint.
On June 9, 2006, the Perkinses moved for a summary
judgment on count 1 (fraudulent suppression) and count 7
(refund of payments) of their complaint, as amended. They
argued that, because Fausnight was not licensed to build
houses, they were entitled to a return of the $195,359.83
they had paid Fausnight under the contract.
On August 16, 2006, Fausnight filed a response to the
Perkinses' summary-judgment motion. As to the claim for
restitution, he conceded that, because he was not licensed
to build houses, he could not bring an action to enforce his
contract with the Perkinses. However, he pointed out, he was
not bringing such an action but was merely defending against
1060171
Fausnight takes the position in his brief on appeal that
2
the trial court ruled against him on the Perkinses'
fraudulent-suppression claim. The Perkinses expressly
disagree and accordingly offer no argument as to this issue in
their brief. Our review of the record, particularly of the
trial court's order, leads us to conclude that the trial court
resolved only that portion of the Perkinses' motion seeking a
summary judgment on the restitution claim.
4
an action brought by the Perkinses. The Perkinses' request
for the return of funds paid, he argued, was "contrary to the
law."
On September 8, 2006, the trial court granted the
Perkinses' motion and entered a partial summary judgment in
their favor on the restitution claim. In its order granting
2
the motion, the trial court stated, in pertinent part:
"This case came before the court for a hearing
on August 21, 2006, on the plaintiff's Motion for
Partial Summary Judgment under counts I (fraud) and
court VII (refund of payments). ...
"The sole issue before the court is ... a
legal one: whether [Fausnight's] failure to obtain
a homebuilder's license, as required by law,
entitles the plaintiffs to a refund of their
payments. [Fausnight] concede[s] that the parties'
contract 'would be void and unenforceable assuming
the defendants were attempting to enforce the
same.' ...
"Thus,
if
[Fausnight]
had
completed
construction of the home, and the plaintiffs had
paid them nothing for it, then [Fausnight] would
have absolutely no recourse against the plaintiffs,
even though the plaintiffs would have obtained the
1060171
5
benefit of all [Fausnight's] work. Ala. Code
§ 34-14A-14 ('A residential homebuilder, who does
not have the license required, may not bring or
maintain any action to enforce the provisions of
any contract for residential home building which he
or
she
entered
into
in
violation
of
this
chapter.').
"Now that [Fausnight has] been paid, may [he]
retain money that [he] had no legal right to
collect from the plaintiffs? After considering the
Alabama cases under similar statutes, the court
finds that [he] may not. For instance in Thomas
Learning Center, Inc. v. McGuirk, 766 So. 2d 161,
174 (Ala. Civ. App. 1998), the court quoted a New
Mexico case, holding, 'as a matter of public
policy, an unlicensed contractor may not retain
payments made pursuant to a contract which requires
him to perform in violation of the [general
contractor licensing] Act.' (quoting Mascarenas v.
Jaramillo, 111 N.M. 410, 806 P.2d 59 (1991)). That
is the exact issue in this case; whether the
unlicensed defendant[] may retain the plaintiffs'
payments.
"Similarly, in Ex parte Ledford, 761 So. 2d
990 (Ala. 2000), the court held that the plaintiff
was
entitled
to
a
refund
of
real
[estate]
commissions that he had paid an unlicensed broker,
fees that it held the unlicensed agent 'could not
legally charge.' 761 So. 2d at 995. Alabama cases
on unlicensed lenders have reached similar results.
See Edwards v. Alabama Farm Bureau Mut. Cas. Ins.
Co., 509 So. 2d 232 (Ala. Civ. App. 1986) ('Edwards
is entitled to a refund of his payments to Farm
Bureau.'); Johnson v. Alabama Power Co., 664 So. 2d
877 (Ala. 1995) (recognizing common law right to
recover payments made to unlicensed lender).
"[Fausnight has] argued that this result is
[an] extremely harsh result. Although this result
may appear harsh, it nevertheless flows directly
1060171
6
from the Legislature's expressed intent to protect
the public from 'unqualified, incompetent or
dishonest
home
building
contractors
and
remodelers.' Hooks v. Pickens, [940 So. 2d 1029]
(Ala.
Civ.
App.
2006)
(quoting
Ala.
Code
§ 34-14A-1). The court also notes that 'harsh
results sometimes flow from the construction of a
penal statute.' White v. Miller, 718 So. 2d 88, 90
(Ala. 1998).
"Since [Fausnight's] contract is void, and due
to the penal nature of the statute, the court finds
that the plaintiffs are entitled to a refund of
their payments."
The trial court made its partial summary judgment on the
Perkinses' restitution claim final pursuant to Rule 54(b),
Ala. R. Civ. P. Fausnight appeals. The sole issue for
consideration in this appeal is whether the trial court
correctly entered a summary judgment in the Perkinses' favor
on their claim for restitution.
II. Standard of Review
The standard by which we review a summary judgment is
well settled:
"This Court reviews a summary judgment de
novo. Turner v. Westhampton Court, L.L.C., 903 So.
2d 82, 87 (Ala. 2004). We seek to determine
whether the movant has made a prima facie showing
that there exists no genuine issue of material fact
and has demonstrated that the movant is entitled to
a judgment as a matter of law. Turner, supra."
Muller v. Seeds, 919 So. 2d 1174, 1176 (Ala. 2005).
1060171
The
Perkinses
contend
that
Fausnight
waived
his
arguments
3
on appeal relating to the claim for restitution by failing to
make them below. Our review of the record convinces us that
Fausnight adequately preserved for appellate review the issue
of the propriety of restitution in this case.
In addition, the Perkinses contend that this Court should
summarily affirm the trial court's partial summary judgment
because
of
Fausnight's
failure
to
observe
all
the
requirements
of Rule 28(a), Ala. R. App. P. We do not view the
shortcomings of Fausnight's brief as warranting a summary
affirmance. In particular, as to the Perkinses' contention
that the brief does not contain a statement of facts compliant
with Rule 28(a), we find that the factual statements contained
in the brief sufficiently inform the Court of those facts
necessary to dispose of the appeal.
7
III. Analysis
Fausnight contends that the trial court erred when it
entered a partial summary judgment in favor of the Perkinses
on their claim for restitution as to the payments they made
to Fausnight in the amount of $195,359.83 for the
construction of their house. Fausnight contends that,
although the statutes relating to the licensing of home
builders prevent an unlicensed home builder from bringing an
action to enforce a contract for the construction of a house,
those statutes do not provide a homeowner with a right to sue
to obtain a refund of payments already made to the unlicensed
home builder. We agree.
3
1060171
8
The licensing statute at issue here is contained in
Chapter 14A of Title 34, Ala. Code 1975, which is entitled
"Home
Building
and
Home
Improvement
Industries."
Among
other
things, this chapter deals with the licensing of individuals
and companies engaged in the profession of residential home
construction.
Legislative
findings
supporting
the
implementation of the chapter are found at § 34-14A-1:
"In the interest of the public health, safety,
welfare, and consumer protection and to regulate
the home building and private dwelling construction
industry, the purpose of this chapter, and the
intent of the Legislature in passing it, is to
provide for the licensure of those persons who
engage in home building and private dwelling
construction, including remodeling, and to provide
home building standards in the State of Alabama.
The Legislature recognizes that the home building
and home improvement construction industries are
significant industries. Home builders may pose
significant harm to the public when unqualified,
incompetent,
or
dishonest
home
building
contractors
and remodelers provide inadequate, unsafe or
inferior building services. The Legislature finds
it necessary to regulate the residential home
building and remodeling construction industries."
Section
34-14A-5
requires
"residential
home
builders"
to
obtain a license from the Home Builders Licensure Board,
which is established pursuant to §§ 34-14A-2(3) and -3 "to
regulate the home building and residential construction
1060171
9
industry." A "residential home builder" is statutorily
defined as
"[o]ne who constructs a residence or structure for
sale or who, for a fixed price, commission, fee, or
wage, undertakes or offers to undertake the
construction
or
superintending
of
the
construction,
[or who manages, supervises, assists, or provides
consultation
to
a
homeowner
regarding
the
construction
or
superintending
of
the
construction,] of any residence or structure which
is not over three floors in height and which does
not have more than four units in an apartment
complex,
or
the
repair,
improvement,
or
reimprovement thereof, to be used by another as a
residence when the cost of the undertaking exceeds
ten thousand dollars ($10,000)."
§ 34-14A-2(10) (bracketed language
added
in 2006, see Act No.
2006-105, Ala. Acts 2006).
Penalties for violating the requirements of Chapter 14A
are set forth in § 34-14A-14, which, at the time of the
events at issue, provided, in pertinent part:
"Any person who undertakes or attempts to
undertake the business of residential home building
without holding a current and valid residential
home builders license, issued by the Home Builders
Licensure Board, as required by the provisions of
this chapter ... shall be deemed guilty of a Class
A misdemeanor.
"....
"A residential home builder, who does not have
the license required, may not bring or maintain any
action to enforce the provisions of any contract
1060171
Act No. 2006-105, Ala. Acts 2006, effective May 1, 2006,
4
amended § 34-14A-14 by, among other things, providing for
administrative fines of up to $2,000 for each violation of
Title 34, Chapter 14A.
10
for residential home building which he or she
entered into in violation of this chapter."4
It is undisputed that Fausnight, in building the
Perkinses' house, was engaged in residential home building
without the requisite license. Thus, under 34-14A-14, he
could not bring an action to enforce his contract with the
Perkinses. That is, if the Perkinses had not paid him
$195,359.83 for the construction of the house, Fausnight
could not have invoked the aid of the courts to force the
Perkinses to do so.
The question raised by the present appeal, however, is
not whether Fausnight could bring an action to enforce his
contract with the Perkinses. The question posed is whether
the Perkinses, having paid Fausnight for the construction of
their house, have a cause of action to force a refund of that
payment solely as a result of Fausnight's failure to be
licensed under the statute.
This Court has addressed, in two cases, a similar
question, namely whether a party
who deals with a real-estate
1060171
Alabama Code 1940 (Recomp. 1958), tit. 46, § 311(2), as
5
amended,
required
individuals
and
entities
to
obtain a
license
from a board known as the "Alabama real estate commission" to
"engage in the business, occupation, or calling of a real
estate broker."
11
broker can obtain a refund of payments made to the broker if
the broker does not hold a license as required by law. In
Homeland Insurance Co. v. Crescent Realty Co., 277 Ala. 213,
168 So. 2d 243 (1964), the plaintiff real-estate broker sued
to obtain a declaration that it was entitled, following the
termination of its contract with the defendant building
owner, to receive commission payments on certain leases of
real estate that it had negotiated on behalf of the building
owner. The building owner counterclaimed for the return of
all the commissions it had previously paid the broker,
because the broker was not licensed. After concluding that
5
the broker was not entitled to any commission payments based
on the leases in question for any period following the
termination of its contract with the building owner, this
Court addressed the building owner's counterclaim seeking a
refund of previously paid commissions to the broker as
follows:
1060171
12
"The commissions were voluntarily paid by the
[building owner] in consideration of services
actually performed. The [building owner] paid
these commissions over several years. It had full
knowledge of the services for which it was
compensating the [broker]. The dealings between
the parties were open and amicable until the
[building owner] elected to cancel the agreement.
There was no compulsion or oppression. Whether the
[broker] was or was not licensed as a real estate
broker in no wise affected its right to retain
commissions already earned under the agreement. No
fraud can be read into these past transactions.
The [building owner] was not entitled to recover
these past commissions already paid under these
conditions."
277 Ala. at 216-17, 168 So. 2d at 246-47 (emphasis added).
More recently, in Ex parte Ledford, 761 So. 2d 990 (Ala.
2000), plaintiffs brought an action seeking, among other
things, to recover the fees they had paid to a real-estate
broker who was not licensed as required by Ala. Code 1975,
§ 34-27-30, one of the successor statutes to the licensing
statute in place at the time Homeland was decided. See note
5, supra. After deciding that the broker had engaged in
activities requiring a real-estate broker's license, the
Court remanded the cause for a determination by the trial
court of what amount of the fees paid to the broker were for
services for which a real-estate broker's license was
1060171
We note that the Perkinses also cite Edwards v. Alabama
6
Farm Bureau Mutual Casualty Insurance Co., 509 So. 2d 232
(Ala. Civ. App. 1986), for the proposition that a party can
obtain a refund of payments made to another party not licensed
as required by law. The Perkinses misconstrue Edwards. In
13
required. 761 So. 2d at 994-95. That amount, we implied,
could be recovered by the plaintiffs.
The Court in Ledford did not take cognizance of the
previous decision in Homeland, much less explain how its
decision
could
be
justified given
that earlier decision. For
all that appears in the Court's opinion in Ledford, the only
question the parties disputed was whether the defendant
broker had actually performed services for which a license
was necessary. There was no analysis of the issue whether,
if he had performed such services, he was entitled to retain
the fees he had already been paid for those services. The
Court simply assumed, without discussion, that he could not.
Because neither of the foregoing cases deals with the
particular statute at issue in the present case, and because
neither of them provides more than a modest analysis (though
we are inclined to find the reasoning in Homeland to be more
persuasive), we choose to examine authority from other
jurisdictions.6
1060171
Edwards, the Court of Civil Appeals held that the payor was
entitled to a return of payments he had made to a creditor
pursuant to a statute that specifically provided that a
creditor "'shall have no right to receive or retain the
principal or any finance charges'" if the creditor "'made an
excess finance charge in deliberate violation or in reckless
disregard for'" tit. 5, chapter 19, Ala. Code 1975. 509 So.
2d at 239 (quoting Ala. Code 1975, § 5-19-19) (emphasis
added).
The Perkinses also point out, as did the trial court, the
fact that the Court of Civil Appeals in Thomas Learning
Center, Inc. v. McGuirk, 766 So. 2d 161 (Ala. Civ. App. 1998),
quoted the following passage from a New Mexico Supreme Court
case:
"'As a matter of public policy, an unlicensed
contractor may not retain payments made pursuant to
a contract which requires him to perform in
violation of the [general-contractor licensing]
Act.
This is true even if, as here, the consumer has
knowledge that the contractor is unlicensed. The
public policy behind the licensing requirement of
the Act is so strong that the element of consumer
knowledge is of no consequence in our decision.'"
766 So. 2d at 174 (quoting Mascarenas v. Jaramillo, 111 N.M.
410, 414, 806 P.2d 59, 63 (1991)) (emphasis added in McGuirk).
The Court of Civil Appeals in McGuirk relied on the New Mexico
case for the concept embodied in the sentence from that
opinion it emphasized. The Court of Civil Appeals did not
have before it an issue regarding whether the contractor in
that case should be required to disgorge payments it had
received, and, accordingly, it did not rely on the first
sentence in the quoted passage from the New Mexico case. We
also note that only one judge of the Court of Civil Appeals
joined the main opinion in McGuirk; three judges concurred
only in the result.
14
In 2 George E. Palmer, The Law of Restitution § 8.3(b)
1060171
15
(1978), we find the following:
"When services contracted for have been performed
by an unlicensed person, courts nearly always have
denied restitution of payments made for such
services. In the usual case there is no unjust
enrichment of the unlicensed person, since he
merely
receives
the
agreed compensation
for
services performed. This is the reason, either
expressed or implicit, in most of the cases denying
restitution, although other reasons sometimes are
given. The fact that an unlicensed person will not
be permitted to recover compensation for his work,
either on the contract or on principles of
restitution, does not make his retention of a
payment for such services an unjust enrichment.
This is exemplified in the decisions rejecting his
action to recover for uncompensated work, while at
the same time denying the defendant's counterclaim
seeking restitution of payments made for the work."
(Emphasis added; footnotes omitted.) Moreover, we find that
an
annotation
from
the
American
Law
Reports
articulates
quite
well five separate reasons why a result such as that reached
in Homeland is correct:
"In the absence of a statute providing for
recovery, the cases generally hold that one who has
paid money to an unlicensed person in consideration
of the performance of a contract by such person is
not entitled to recover back the money so paid on
the ground that the contract was illegal because
the person performing the contract did not have an
occupational or business license or permit which he
was by law required to have. The bases of such
holdings are [(1)] that the law requiring the
license does not specifically provide for such a
right to recover back money paid, [(2)] that the
sanctions of such law are penal in nature and must
1060171
16
be strictly construed, [(3)] that the specification
by such laws of particular penalties, such as
making violation a misdemeanor and prohibiting
suits for compensation for the unlicensed services,
preclude the construction of the statute as
embracing
a
loss
of
the
right
to
retain
compensation which has been paid, under the rule of
inclusio unius est exclusio alterius, [(4)] that
the allowance of recovery back is not necessary to
effectuate the policy of the licensing statutes,
and [(5)] the conclusion that equity and the
principles of restitution do not require that the
money be paid back.
"In this latter connection recovery is denied
on the ground that the compensation was a voluntary
payment, that any misapprehension in the payment
constituted a mistake of law by which the payor is
bound, and that there is no equitable reason for
making restitution to a plaintiff who gets the
exchange which he expected."
Maurice T. Brunner, Annotation, Recovery Back of Money Paid
to Unlicensed Person Required by Law to Have Occupational or
Business
License or
Permit to
Make Contract, 74 A.L.R.3d 637,
642-44 (1976). See also Hawkins v. Holland, 97 N.C. App.
291, 294-95, 388 S.E.2d 221, 223 (1990) ("Though numerous
cases
involving
the
efforts
of
unlicensed
building
contractors to collect on their contracts have been decided
by our Courts, so far as we can ascertain whether one can
recover payments made on a construction contract to an
unlicensed contractor has not been considered before in this
1060171
17
jurisdiction. Other courts have considered the question,
however, and held that such payments are not recoverable.
... The bases of the holdings are that the statutes
requiring the license do not specifically authorize the
recovery of money paid ...; that such laws are penal in
nature and must be strictly construed ...; that the
specification of particular penalties precludes the addition
of others by judicial construction ...; that allowing the
recovery of such payments is not necessary to effectuate the
policy of licensing statutes ...; and that equity and the
principles of restitution do not require that such
contractors be completely uncompensated or that contracting
homeowners receive the completed construction without cost
.... All these reasons persuade us that in enacting [the
general-contractor licensing requirements] our legislature
did not intend to authorize the recovery of amounts paid
unlicensed contractors under the circumstances involved
here."); Lenz v. Walsh, 362 S.C. 603, 608, 608 S.E.2d 471,
473 (S.C. Ct. App. 2005) ("[G]enerally, a homeowner may not
recover payments already made to an unlicensed contractor
merely because the contractor did not hold a license when the
1060171
See also Southwestern Life Ins. Group v. Morehead, 245
7
Fed. Appx. 304, 306 (4th Cir. 2007) (not published in F.3d)
(applying North Carolina law) ("This appeal presents the
question of whether, under North Carolina law, a party to a
fully executed contract may rescind it on the basis of the
other
contracting
party's failure
to
comply with
licensing and
similar regulatory statutes, which statutes do not expressly
create such a private right of action. North Carolina case
law clearly and directly answers the posited question in the
negative."); Food Mgmt., Inc. v. Blue Ribbon Beef Pack, Inc.,
413 F.2d 716, 727 (8th Cir. 1969) (applying Iowa law) ("There
is no provision under the Iowa registration statutes for the
recovery
back
of
money
voluntarily
paid
under
an
architectural
or engineering contract to an unlicensed party. To allow both
retainment of services and recovery back of money paid is not
necessary to effectuate the public policy of the licensing
statutes, and there would be no inequitable harm to Blue
Ribbon in not invoking restitution because, as found by the
trial court, it obtained the service it had bargained for.");
Comet Theatre Enters., Inc. v. Cartwright, 195 F.2d 80, 81
(9th Cir. 1952) (applying California law) ("There is no
provision in the [contractor-licensing statute] that when the
unlicensed persons have completely performed a contract for
agreed services and the person so benefited voluntarily has
paid the agreed consideration he may recover back the money so
18
contract was executed."); Mosley v. Johnson, 22 Utah 2d 348,
352-53, 453 P.2d 149, 152 (1969) ("In cases involving an
action to recover for work performed by an unlicensed well
driller, etc., the penalty prohibiting him from recovering
in the courts is severe enough, and the one for whom the work
was performed may not add to that penalty by recovering back
that which was voluntarily paid for the work done by such an
unlicensed person.").7
1060171
paid. Here to add to the two specific provisions, to make
effective the licensing requirement, a right in Comet to
retain the value of the services of the appellees and also to
recover back the fair amount Comet had paid for its services
is not necessary to effectuate the policy of the statute.
This seems a case for the application of the rule expressio
unius est exclusio alterius."); CitraManis v. Hallowell, 328
Md. 142, 159, 613 A.2d 964, 972 (1992) ("[E]ven if the lease
were unenforceable by
the
landlords, the
tenants have received
everything that they bargained for, and a necessary element
justifying
the
remedy
of
restitution,
i.e.,
unjust
enrichment,
is lacking."); Electrovoice Int'l, Inc. v. Sarasohn Adjusting
Co., 567 N.Y.S.2d 568, 570, 149 Misc. 2d 924, 927 (1990) ("[A]
defendant who has violated a licensing statute will not be
required to return compensation paid after completion of the
job even though he would have been unable to sue upon the
contract.").
19
Some courts have disagreed with the conclusion reached
by the foregoing authorities, however, and have concluded
that the party with whom an unlicensed entity has contracted
is entitled to restitution of the payments it made to the
entity. See, e.g., Ransburg v. Haase, 224 Ill. App. 3d 681,
688, 586 N.E.2d 1295, 1300, 167 Ill. Dec. 23, 28 (1992) ("To
allow the unlicensed architect to retain the fees paid is to
allow him to practice architecture in the state of Illinois
without a license and to reap the rewards thereof. The
purpose of
the Illinois
licensing act can best be effectuated
by recognizing plaintiff's right to recovery."); but see
Jenkins v. Concorde Acceptance Corp., 345 Ill. App. 3d 669,
1060171
20
674-76, 802 N.E.2d 1270, 1276-77, 280 Ill. Dec. 749, 755
(2003) (holding that if a party voluntarily pays an
unlicensed entity, the voluntary-payment doctrine would
preclude recovery of those funds voluntarily paid to the
unlicensed entity, and distinguishing Ransburg on the basis
that, in that case, "the defendant did not raise, and this
court did not consider, the defense of voluntary payment").
See also, e.g., Kowalski v. Cedars of Portsmouth Condo.
Ass'n, 146 N.H. 130, 132-33, 769 A.2d 344, 347 (2001)
(holding that an unlicensed real-estate broker must disgorge
payments it received from individuals for whom it performed
broker services because to allow the broker to retain the
payments "would encourage unlicensed persons to seek advance
payments, thereby undermining the purpose of" the real-
estate-broker licensing statute); Mascarenas v. Jaramillo,
111 N.M. 410, 414, 806 P.2d 59, 63 (1991) ("As a matter of
public policy, an unlicensed contractor may not retain
payments made pursuant to a contract which requires him to
perform
in
violation
of
the
Construction
Industries
Licensing
Act.").
1060171
21
On the same bases as articulated in the above-referenced
annotation from American Law Reports, we conclude that the
fact that the home builder in this case was not licensed,
standing alone, is not a sufficient basis on which to require
Fausnight to return the funds he has received from the
Perkinses. We note as to the first four reasons stated in
that annotation that Alabama's statute contains no provision
expressly requiring an unlicensed home builder to refund
moneys paid to it. To read the statute as containing such
a provision would be to read into the statute a private cause
of action for homeowners that easily could have been, but was
not, expressed by the legislature in the statute. The
statute
expressly
deprives
the
unlicensed
home
builder
of
the
right to use Alabama courts to collect unpaid moneys
otherwise owed it; it does not purport to provide home owners
with a cause of action to obtain refunds of amounts paid to
unlicensed home builders.
Further, in the statutory framework before us, not only
is an unlicensed home builder unable to use Alabama courts
to enforce its contracts related to residential home
building, a home builder that engages in the trade without
1060171
In 2006, the legislature amended § 34-14A-14 to add a
8
provision for administrative fines of up to $2,000 per
violation. See note 4, supra.
22
a license is subject to criminal sanctions, including up to
a year's imprisonment and a criminal fine of up to $6,000,
for the commission of a Class A misdemeanor. See § 34-14A-14
(providing that "[a]ny person who undertakes or attempts to
undertake the business of residential home building" without
holding the requisite license "shall be deemed guilty of a
Class A misdemeanor"); §§ 13A-5-7 and -12 (setting forth the
sanctions for commission of a Class A misdemeanor). As
8
other authorities have noted in such a context, the legal
maxim expressio unius est exclusio alterius applies.
Moreover, in the circumstances presented here, we do not
believe
that
creating
an
inequitable
situation
where
one
does
not already exist is a proper use of the courts. As
Judge Cardozo stated almost a century ago in Schank v.
Schuchman, 212 N.Y. 352, 359, 106 N.E. 127, 129 (1914): "The
law may at times refuse to aid a wrongdoer in getting that
which good conscience permits him to receive; it will not for
that reason aid another in taking away from him that which
good conscience entitles him to retain."
1060171
23
Based on the foregoing, we conclude that the trial court
erred when it entered a summary judgment in favor of the
Perkinses on their claim for reimbursement of the fees they
had paid to Fausnight for constructing their house.
IV. Conclusion
Based on the foregoing, we hold that the trial court
erred when it entered a partial summary judgment in favor of
the Perkinses on their claim for restitution. Thus, we
reverse that judgment and remand the cause for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Woodall, Stuart, Smith, Bolin, and
Parker, JJ., concur.
See and Lyons, JJ., concur specially.
1060171
24
SEE, Justice (concurring specially).
I concur fully in the main opinion. I write simply to
note that although "[i]t is well-settled law in this State
that the interpretation of a statute begins with the plain
language of the statute itself," Housing Auth. of Huntsville
v. Hartford Accident & Indem. Co., 954 So. 2d 577, 582 (Ala.
2006), the statute in this case is silent as to whether the
Perkinses have a claim for restitution from Fausnight. When
a statute is silent, this Court will look outside of the
plain language of the statute to determine the intent of the
legislature. See, e.g., Ex parte Baron Servs., Inc., 874
So. 2d 545, 549 (Ala. 2003) ("The statute is silent on the
application of a marketability discount. Therefore, we are
forced to look outside the language of the statute to
determine
what
the
Legislature
intended.");
Old
Republic
Sur.
Co. v. Auction Way Sales, Inc., 733 So. 2d 878, 880 (Ala.
Civ. App. 1997) ("The statute is silent as to whether it
applies outside the territorial jurisdiction of Alabama;
therefore, in our review, we must rely on the cardinal rule
of statutory interpretation: to determine and give effect to
the intent of the legislature as manifested in the language
1060171
25
of the statute." (citing Ex parte State Dep't of Revenue, 683
So. 2d 980, 983 (Ala. 1996))).
1060171
26
LYONS, Justice (concurring specially).
I concur fully in the main opinion.
The question as to the adequacy of Fausnight's assertion
of
grounds
for
rejecting
the
Perkinses'
claim
for
restitution
in the trial court is a close one. However, in his
opposition to the Perkinses' motion for a summary judgment,
Fausnight correctly observed that whether restitution was
available for a violation of § 34-14A-5, Ala. Code 1975, was
a question of first impression. He then analogized this case
to cases involving unlicensed general contractors and cited
McRae v. Sawyer, 473 So. 2d 1006 (Ala. 1985), as authority
for his argument that a remedy for recovery of the value of
work performed is unavailable to the Perkinses. He then
stated:
"Similarly, § 34-14A-14 provides yet another
blow to a residential home builder who does not
have a license. It is this statute which states an
unlicensed home builder may not bring or maintain
any action to enforce the provisions of any
contract. As this Court is again reminded,
[Fausnight is] not attempting to enforce any
contract."
I agree with the conclusion in the main opinion that by this
argument the trial court was sufficiently apprised of
Fausnight's contention that § 34-14A-5 condemns only an
1060171
27
action by him and does not go beyond that limitation and
authorize an action by the Perkinses for restitution.
I also agree with the conclusion in the main opinion as
to the adequacy of Fausnight's principal brief. With regard
to restitution, Fausnight stated:
"A residential home builder, who does not have
the license required, shall not bring or maintain
any action to enforce the provisions of any
contract for residential home building which he
entered into. Code of Alabama (1975) § 34-14A-14.
[The] Perkins[es] relied on this statute to seek a
refund of payments that were paid to Fausnight for
the construction of the home. However, the purpose
of the statute is to prevent the builder from being
able to enforce a contract if not properly
licensed. The statute makes no mention of
homeowners being able to seek a refund for failure
to comply with the statute. In determining the
meaning of a statute, the court looks to the plain
meaning of the words as written by the legislature.
DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729
So. 2d 270 (Ala. 1998). If the statute is
unambiguous, then there is no room for judicial
construction and the clearly expressed intent of
the legislature must be given effect. Id.
"In the case at hand, (which appears to be one
of first impression) Fausnight is not trying to
enforce the contract. Therefore, § 34-14A-14 is
not applicable because it does not mention any
recourse the homeowners could take to seek a
refund. The trial court erred by allowing [the]
Perkins[es] to use this regulatory statute as a
vehicle for compensation. See below for further
discussion."
Fausnight's brief, pp. 12-13.
1060171
28
As to the variance between Homeland Insurance Co. v.
Crescent Realty Co., 277 Ala. 213, 168 So. 2d 243 (1964), and
Ex parte Ledford, 761 So. 2d 990 (Ala. 2000), cases not cited
by either party and dealing with a statute similar to
§ 34-14A-14, a review of the petition and briefs in Ex parte
Ledford reveals that the party claiming restitution cited
authority that merely precluded the unlicensed entity from
seeking
recovery,
as
opposed
to
going
further
and
authorizing
restitution of sums previously paid. The party opposed to
restitution
relied only on the defense of limitations and the
contention that his activity had not subjected him to the
requirement of licensure as a real-estate broker. In other
words, the availability of the remedy of restitution in the
event licensure was found to be necessary was not a litigated
issue in Ex parte Ledford. For that reason, I consider the
rule applied in Homeland Insurance Co., albeit applicable
here only by analogy, to reflect the appropriate view to
which we are led by the felicitous confluence of reason and
stare decisis. | May 23, 2008 |
c7ad30e3-0e62-4809-a81c-90e9bf796ad9 | Ex parte Michael Booker. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Michael Booker v. State of Alabama) | N/A | 1070376 | Alabama | Alabama Supreme Court | REL: 04/25/2008
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, 2007-2008
_________________________
1070376
_________________________
Ex parte Michael Booker
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Michael Booker
v.
State of Alabama)
(Chambers Circuit Court, CC-96-434.61;
Court of Criminal Appeals, CR-06-1730)
LYONS, Justice.
Michael Booker petitioned this Court for a writ of
certiorari to review whether the Court of Criminal Appeals
1070376
2
erred in affirming the Chambers Circuit Court's order denying
his Rule 32, Ala. R. Crim. P., petition. We issued the writ
of certiorari to review whether Booker's claim alleging that
the State presented insufficient evidence to support his
convictions is precluded from appellate review. For the
reasons discussed below, we affirm, on a different rationale,
the judgment of the Court of Criminal Appeals.
I. Facts and Procedural History
Michael Booker pleaded guilty to two counts of capital
murder and one count of attempted murder in March 1998. After
a jury trial on the capital offenses pursuant to § 13A-5-42,
Ala. Code 1975, which allows a capital defendant to plead
guilty but requires the State to prove the defendant's guilt
to a jury beyond a reasonable doubt, the jury convicted Booker
of the capital charges. The trial court sentenced him to life
imprisonment without the possibility of parole on each capital
conviction and to life imprisonment on the attempted-murder
conviction. Booker later appealed his convictions and
sentences to the Court of Criminal Appeals. In April 1998,
the Court of Criminal Appeals dismissed Booker's appeal as
1070376
3
untimely filed. Booker v. State, 738 So. 2d 944 (Ala. Crim.
App. 1998) (table).
In November 2006, Booker, for the third time, petitioned
the trial court for postconviction relief under Rule 32, Ala.
R. Crim. P., alleging, among other things, that the State
presented insufficient evidence to the jury to support his
capital convictions. The trial court denied the petition as
untimely filed and as successive. Booker then appealed 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 in an unpublished memorandum. Booker v. State
(No. CR-06-1730, Oct. 26, 2007), __ So. 2d __ (Ala. Crim. App.
2007) (table). That court concluded in its unpublished
memorandum that Booker's insufficiency-of-the-evidence claim
was without merit because he had pleaded guilty to the charged
offenses. Relying on Waddle v. State, 784 So. 2d 367 (Ala.
Crim. App. 2000), the Court of Criminal Appeals also held that
"a challenge to the lack of a factual basis for a guilty plea
is nonjurisdictional" and therefore subject to the procedural
bars of Rule 32, Ala. R. Crim. P. Consequently, the Court of
1070376
4
Criminal Appeals concluded that the trial court correctly
found that Booker's claim that the evidence was insufficient
to support his convictions for capital murder was precluded
under Rule 32.2(b), Ala. R. Crim. P., as successive, and under
Rule 32.2(c), Ala. R. Crim. P., as untimely filed.
Booker then petitioned this Court for certiorari review.
We granted the petition to determine whether the decision of
the Court of Criminal Appeals in this case conflicts with
Elder v. State, 494 So. 2d 922 (Ala. Crim. App. 1986), and
Davis v. State, 682 So. 2d 476 (Ala. Crim. App. 1995).
II. Standard of Review
"'This Court reviews pure questions of law in criminal
cases de novo.'" Ex parte Morrow, 915 So. 2d 539, 541 (Ala.
2004) (quoting Ex parte Key, 890 So. 2d 1056, 1059 (Ala.
2003)).
III. Analysis
To analyze whether the decision of the Court of Criminal
Appeals conflicts with Elder and Davis, and thus whether the
Court of Criminal Appeals erred in holding that Booker's
insufficiency-of-the-evidence claim is precluded, we must
determine whether insufficiency of the evidence to support the
1070376
5
conviction is a jurisdictional defect when a defendant enters
a plea of guilty to a capital offense pursuant to § 13A-5-42,
Ala. Code 1975. Section 13A-5-42 provides:
"A defendant who is indicted for a capital
offense may plead guilty to it, but the state must
in any event prove the defendant's guilt of the
capital offense beyond a reasonable doubt to a jury.
The guilty plea may be considered in determining
whether the state has met that burden of proof. The
guilty plea shall have the effect of waiving all
non-jurisdictional
defects
in
the
proceeding
resulting in the conviction except the sufficiency
of the evidence. A defendant convicted of a capital
offense after pleading guilty to it shall be
sentenced according to the provisions of Section
13A-5-43(d)."
(Emphasis added.) This Court has not previously interpreted
§ 13A-5-42.
Booker correctly asserts that in Elder and Davis the
Court of Criminal Appeals held that failure to prove a
defendant's guilt in a capital case beyond a reasonable doubt
to a jury, as required by § 13A-5-42, is a jurisdictional
defect. See Benton v. State, 887 So. 2d 304, 306 n. 1 (Ala.
Crim. App. 2003) ("We recognize that Cox v. State, 462 So. 2d
1047 (Ala. Crim. App. 1985), and Elder v. State, 494 So. 2d
922 (Ala. Crim. App. 1986), cite § 13A-5-42, Ala. Code 1975,
for the proposition that the requirement that a defendant's
1070376
6
guilt be proved to a jury beyond a reasonable doubt is
jurisdictional."). In Davis, 682 So. 2d at 479 n. 2, the
Court of Criminal Appeals relied on Cox and Elder to note that
"the requirement in § 13A-5-42 that the appellant's guilt be
proved beyond a reasonable doubt to a jury is jurisdictional."
In Cox v. State, 462 So. 2d 1047, 1049 (Ala. Crim. App.
1985), the trial court, without empaneling a jury, accepted a
defendant's plea of guilty to a capital offense and sentenced
him to life imprisonment without the possibility of parole.
The trial court later held a hearing in which the defendant
again entered a plea of guilty to the same capital offense.
Cox, 462 So. 2d at 1049. The trial court then empaneled a
jury, which heard the State's prima facie case and returned a
verdict of guilty. Id. The trial court again sentenced the
defendant to life imprisonment without the possibility of
parole. Id. In analyzing the defendant's assertion that his
right to be free from double jeopardy had been violated
because the trial court had sentenced him twice for the same
offense, the Court of Criminal Appeals held that "[§] 13A-5-42
... required that [the defendant's] guilt be proved beyond a
reasonable doubt by a jury, even though he had pleaded guilty.
1070376
7
This requirement could not be waived. It was jurisdictional."
462 So. 2d at 1051.
In Elder, 494 So. 2d at 922, the defendant contended that
the trial court had improperly accepted his plea of guilty
under § 13A-5-42 because, he claimed, "the jury was selected
by the agreement of both the prosecution and the defense." In
considering whether the trial court had jurisdiction to accept
the defendant's plea of guilty, the Court of Criminal Appeals
held that "[w]ith regard to a guilty plea in a capital case,
the requirement of § 13A-5-42 that the accused's guilt be
proved beyond a reasonable doubt to a jury is jurisdictional."
Elder, 494 So. 2d at 923 (citing Cox, 462 So. 2d at 1051).
In Benton, a plurality opinion, the Court of Criminal
Appeals, after acknowledging the holding in Cox and Elder of
the jurisdictional status of the proof-beyond-a-reasonable-
doubt requirement in § 13A-5-42, stated:
"However, those cases [Cox and Elder] and §
13A-5-42, Ala. Code 1975, do not stand for the
proposition that the sufficiency of the evidence
must be reviewed on direct appeal, whether or not
preserved at the trial court level, or on collateral
review if a direct appeal has not been pursued.
Rather, the jurisdictional matter to which they
refer is the procedural requirement that, when a
defendant pleads guilty to a capital offense, the
State must still prove the defendant's guilt to a
1070376
8
jury beyond a reasonable doubt. To hold otherwise
would
provide
for
plain
error
review
in
a
non-death-penalty case and would thus violate the
plain language of Rules 45A and 45B, Ala. R. App.
P."
887 So. 2d at 306 n. 1.
Booker contends that Judge Wise's opinion concurring in
part and dissenting in part in Benton, 887 So. 2d at 308,
correctly states that interpreting § 13A-5-42 as providing
that an insufficiency-of-the-evidence claim is jurisdictional
is consistent with Davis, Elder, and Cox. Judge Wise
reasoned:
"An individual who pleads guilty to capital
murder faces only two possible punishments--life
imprisonment without the possibility of parole or
the death penalty. Given these circumstances,
together with the plain language of § 13A-5-42, it
seems clear that the Legislature's intent was to
provide individuals pleading guilty to the most
serious criminal offense encompassed in Alabama law
an elevated level of appellate review. ... Such a
conclusion is consistent with this Court's holdings
in Davis v. State, 682 So. 2d 476, 479 n. 2 (Ala.
Crim. App. 1995); Elder v. State, 494 So. 2d 922,
923 (Ala. Crim. App. 1986); and Cox v. State, 462
So. 2d 1047, 1051 (Ala. Crim. App. 1985), which
recognize that when a defendant pleads guilty to
capital murder the State must nevertheless prove
each element of capital murder beyond a reasonable
doubt to the jury, and that such a requirement is
jurisdictional.
"... [A]llowing a defendant to challenge the
sufficiency
of
the
State's
evidence
in
a
1070376
9
capital-murder guilty-plea proceeding is consistent
with the plain language of § 13A-5-42, which makes
no
distinction
regarding
a
challenge
to
the
sufficiency of the evidence based on the sentence
imposed."
Benton, 887 So. 2d at 308-09.
The State contends that the Court of Criminal Appeals
correctly upheld the trial court's denial of Booker's Rule 32
petition because, it says, Booker's insufficiency-of-the-
evidence claim is precluded as successive and untimely. See
Rules 32.2(b) and (c), Ala. R. Crim. P. The State argues that
the Court of Criminal Appeals correctly treated Booker's
insufficiency-of-the-evidence claim as a challenge to the
factual basis for the guilty plea, which it contends is a
nonjurisdictional claim. The State relies upon Wright v.
State, 902 So. 2d 720 (Ala. Crim. App. 2004), and Faulkner v.
State, 741 So. 2d 462 (Ala. Crim. App. 1999), for the
proposition that "issues related to the sufficiency of the
factual basis for a guilty plea are usually not jurisdictional
in nature." 902 So. 2d at 734 n. 7 (Shaw, J., concurring
specially). However, neither Wright nor Faulkner dealt with
a plea of guilty to a capital offense under § 13A–5-42. In
Wright, a jury found the defendant guilty of robbery in the
1070376
10
second degree, and in Faulkner, the jury found the defendant
guilty of sodomy in the first degree. Likewise, the Court of
Criminal Appeals relied on a noncapital case, Waddle v. State,
784 So. 2d 367 (Ala. Crim. App. 2000), to hold that Booker's
petition was precluded because "a challenge to the lack of a
factual basis for a guilty plea is nonjurisdictional."
The State also contends that the decision of Court of
Criminal Appeals here does not conflict with Davis, Elder, or
Cox because, it says, those cases merely recognize that the
procedural requirement that a defendant's guilt be proved
beyond a reasonable doubt to a jury is jurisdictional and that
it is not waived by entry of the guilty plea. The State makes
the following distinction: When a defendant enters a plea of
guilty in a capital case pursuant to § 13A-5-42, the State's
failure to prove the defendant's guilt to a jury beyond a
reasonable doubt is a jurisdictional defect, while the State's
failure to present sufficient evidence to support the
conviction is a nonjurisdictional defect. To support this
distinction, the State relies on the previously quoted portion
of the main opinion in Benton, 887 So. 2d at 306 n. 1, which
limited the holdings of Cox and Elder by stating that "the
1070376
11
jurisdictional matter to which they refer is the procedural
requirement that, when a defendant pleads guilty to a capital
offense, the State must still prove the defendant's guilt to
a jury beyond a reasonable doubt."
We conclude that the foregoing limitation of Cox and
Elder recognized in Benton is founded upon an erroneous
reading of § 13A-5-42 in Cox and Elder. The plain meaning of
§ 13A-5-42 is simply that insufficiency of the evidence in a
capital case is a nonjurisdictional defect that is not waived
by a guilty plea. "In determining the meaning of a statute or
a court rule, this Court looks first to the plain meaning of
the words as they are written." Ex parte Ward, 957 So. 2d
449, 452 (Ala. 2006) (emphasis added). "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." IMED Corp. v. Systems Eng'g Assocs. Corp., 602
So. 2d 344, 346 (Ala. 1992).
We are here construing an exception to the rule set forth
in a criminal statute, § 13A–5-42 -- "[t]he guilty plea shall
have the effect of waiving all non-jurisdictional defects in
1070376
12
the proceeding resulting in the conviction except the
sufficiency of the evidence." (Emphasis added.) It is well-
established law that "'criminal statutes should not be
"extended by construction."'" Ex parte Mutrie, 658 So. 2d
347, 349 (Ala. 1993) (quoting Ex parte Evers, 434 So. 2d 813,
817 (Ala. 1983), quoting in turn Locklear v. State, 50 Ala.
App. 679, 282 So. 2d 116 (1973)). Moreover, "exceptions [in
statutes], as a general rule, should be strictly, though
reasonably construed, and are to be extended only so far as
their language warrants." State v. Praetorians, 226 Ala. 259,
260, 146 So. 411, 412 (1933).
The exception in § 13A-5-42 does not go so far as to make
a claim of insufficiency of the evidence jurisdictional
because that status is not essential to achieving the obvious
purpose of the exception--insulating a challenge to the
sufficiency of the evidence from waiver by the plea of guilty
to a capital offense. In other words, assuming appropriate
preservation of the error in the trial court, a capital
defendant on direct appeal, relying on § 13A-5-42, can assert
insufficiency of the evidence without being subject to a
contention by the State that the entry of the guilty plea
1070376
13
waived any such defect. If the sufficiency-of-the-evidence
error was not preserved, the conviction that was the basis of
an appeal on this ground would be affirmed.
To interpret the exception in § 13A-5-42 as stating that
a
challenge
to
the
sufficiency
of
the
evidence
is
jurisdictional improperly extends the exception beyond its
purpose and outside its context. We therefore expressly
overrule Cox, Elder, and Davis to the extent that they are
inconsistent with this opinion. Once the interpretation of §
13A-5-42 stemming from Cox and Elder is set aside as
erroneous, the distinction recognized in Benton in order to
circumvent these cases becomes unnecessary, and we therefore
also overrule Benton to the extent it is inconsistent with
this opinion. Thus, we overrule Cox, Elder, Davis, and
Benton, and we hold that pursuant to § 13A-5-42 the State's
failure to present sufficient evidence to prove a defendant's
guilt beyond a reasonable doubt is a nonjurisdictional defect
that, when adequately preserved, may be raised on appeal after
a defendant pleads guilty to a capital offense.
IV. Conclusion
1070376
14
In summary, the trial court denied Booker's Rule 32
petition alleging insufficiency of the evidence to support his
convictions for two counts of capital murder and attempted
murder based on preclusion under Rule 32. The Court of
Criminal Appeals agreed that the petition did not allege a
jurisdictional defect and affirmed the trial court's finding
that Booker's claim was precluded. However, the Court of
Criminal Appeals, in reaching the conclusion that Booker's
claim was nonjurisdictional, relied upon the noncapital case
of Waddle v. State, 784 So. 2d 367 (Ala. Crim. App. 2000), and
did not consider the effect of § 13A-5-42, dealing with claims
of insufficiency of the evidence in capital cases. We have
done so and, by overruling Cox, Elder, Davis, and Benton,
cases from the Court of Criminal Appeals construing §
13A-5-42, we hold, as a matter of first impression, that
pursuant to § 13A-5-42 the State's failure to present
sufficient evidence to prove a defendant's guilt beyond a
reasonable doubt is a nonjurisdictional defect that, when
adequately preserved, may be raised on appeal after a plea of
guilty to a capital offense. Because the rationale of this
Court also supports the trial court's holding, albeit on
1070376
15
different grounds than those relied upon by the Court of
Criminal Appeals, we affirm the judgment of the Court of
Criminal Appeals.
AFFIRMED.
See, Woodall, Stuart, Smith, Bolin, Parker, and Murdock,
JJ., concur.
Cobb, C.J., recuses herself. | April 25, 2008 |
993379f7-d916-4410-93b5-bb917dae0839 | Classroomdirect.com, LLC v. Draphix, LLC, f/k/a ( 334 ) Re-Print/Draphix, LLC | N/A | 1060739 | Alabama | Alabama Supreme Court | REL: 04/25/2008`
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, 2007-2008
_________________________
1060739
_________________________
Classroomdirect.com, LLC
v.
Draphix, LLC, f/k/a Re-Print/Draphix, LLC
_________________________
1060740
_________________________
Draphix, LLC, f/k/a Re-Print/Draphix, LLC
v.
Classroomdirect.com, LLC
Appeals from Jefferson Circuit Court
(CV-05-4675)
1060739; 1060740
2
LYONS, Justice.
Classroomdirect.com, LLC ("Classroom Direct"), obtained
a jury verdict in its favor and against Draphix, LLC, in its
claims brought pursuant to the Lanham Trademark Act, 15 U.S.C.
§ 1051 et seq. ("the Lanham Act"). In addition to the
compensatory damages awarded by the jury, the trial court
exercised its prerogative to award additional compensatory
damages postjudgment pursuant to authority conferred on it by
the Lanham Act. Classroom Direct appeals from those aspects
of the trial court's postjudgment order granting it less
injunctive relief than it had sought, denying its motion for
attorney fees, and awarding it only one-half of the costs in
this action. Draphix, formerly known as Re-Print/Draphix,
LLC, cross-appeals from that aspect of the trial court's
postjudgment order awarding additional damages to Classroom
Direct pursuant to the Lanham Act. We affirm.
I. Factual Background and Procedural History
Classroom Direct and its predecessor companies, the Re-
Print Corporation and Re-Print LLC, sell and distribute
educational and school supplies. The Re-Print Corporation
began selling architectural and engineering supplies under the
name "Re-Print" in 1921, eventually becoming a family business
1060739; 1060740
3
operated by Don Pate and his children. In 1988, Don Pate's
son, Ray Pate, assumed control of the business. In 1992, the
corporation also began selling educational and school supplies
through direct-mail catalogs under the name Re-Print. Re-
Print Corporation later reorganized and changed its name to
Re-Print LLC. Re-Print LLC hired Jack Womack as its chief
financial officer in 1993. In 1994, the company employed Don
Pate's daughter, Celita Carmichael, who was also employed as
an elementary-school teacher, as the spokesperson for the
school-supply business. In 1996, the Pate family sold Re-
Print LLC to an out-of-state corporation. In late 1998, Re-
Print LLC began selling its line of educational and school
supplies under the name Classroom Direct. Re-Print LLC
changed its name to Classroomdirect.com, LLC, in 1999;
however,
its
educational-
and
school-supply
catalogs
continued
to bear the name "Re-Print" for several years. Classroom
Direct markets its products by direct-mail catalog and
Internet Web site to customers on a national basis, most of
whom are teachers in grades pre-kindergarten to sixth and
school districts that order supplies requested by teachers.
The
corporation
continued
to
sell
architectural
and
engineering supplies under the name Re-Print until 2001. At
1060739; 1060740
4
that time, Ray Pate was asked to step down as president, and
Carmichael was discharged as spokesperson. Carmichael's
discharge activated a two-year noncompetition clause in her
employment agreement with Classroom Direct. Womack was
promoted to general manager, but he refused to sign a
noncompetition agreement, declining an offer of stock options
by refusing.
In July 2001, Kneeland Wright, a former employee of
Classroom Direct, formed Re-Print/Draphix, LLC, and purchased
certain assets from Classroom Direct. Classroom Direct sold
its architectural- and engineering-supply business to Re-
Print/Draphix pursuant to an asset-purchase agreement and a
service-mark agreement, under which Classroom Direct licensed
to Re-Print/Draphix the use of the Re-Print service mark in
connection with the sale of architectural and engineering
supplies.
The
service-mark
agreement
prohibited
Re-
Print/Draphix from using the Re-Print service mark in
connection with any sales in the educational- and school-
supply market. From July 2001 to July 2004, Classroom
Direct's employees assisted Re-Print/Draphix with accounting,
catalog production, and computer services.
1060739; 1060740
5
In early 2004, Womack, while in the employ of Classroom
Direct, ordered Classroom Direct's information-technology
manager, Jeff Cabaniss, to reserve the Internet domain name
"www.teacherdirect.net" on behalf of Classroom Direct. In
April 2004, Wright, acting on behalf of Re-Print/Draphix,
contacted a trademark attorney about registering a trademark
for the name "Teacher Direct." Between April and July 2004,
Cabaniss prepared a report at Womack's instruction of
Classroom Direct's best-selling items. The 300-page report
showed that of the 13,615 school-supply items in Classroom
Direct's inventory, 90% of the company's sales revenue was
derived from only 3,590 items (26% of the total inventory).
In addition to providing detailed information about Classroom
Direct's best-selling items, the report also showed the type
and quantity of warehouse equipment that would be needed to
stock a warehouse with these items.
In July 2004, Womack left Classroom Direct to become
Wright's partner at Re-Print/Draphix, taking with him a paper
copy of the report prepared by Cabaniss. At that time, Womack
informed his superiors at Classroom Direct that he intended to
start a competing school-supply catalog sales business at Re-
Print/Draphix. In July 2004, Re-Print/Draphix's trademark
1060739; 1060740
6
attorney filed an application with the United States Patent
and Trademark Office for the registration of "Teacher Direct"
as a trademark for the fledgling school-supply division of Re-
Print/Draphix. In August 2004, Womack requested that Cabaniss
send him an electronic copy of the report concerning Classroom
Direct's best-selling items and transfer to Re-Print/Draphix
the reserved Internet domain name www.teacherdirect.net.
Cabaniss refused both requests.
On August 23, 2004, Classroom Direct's president, John
Jeffery, wrote a letter to Wright informing him that after
December 31, 2004, Classroom Direct would no longer provide
the various services it had been assisting Re-Print/Draphix
(hereinafter referred to as "Teacher Direct") with, including
computer
services,
and
that
Teacher
Direct
should
"aggressively begin the process of looking for another
solution for its information systems needs." Jeffery's letter
stated that the services of all Classroom Direct employees
were no longer available to Teacher Direct.
"[T]here have been some functions performed by
Classroom Direct personnel in the past that should
cease immediately. Classroom Direct associates will
no longer be able to provide any service in kind or
otherwise to Re-Print/Draphix. This includes, but
[is] not limited to[,] accounting functions, month-
end
processing,
custom
reporting,
catalog
1060739; 1060740
7
production, website design, graphic arts, etc.
Please take the appropriate steps now to take over
these functions because they will no longer be done
by a Classroom Direct associate either during normal
business hours or after hours on the associate's own
time."
Jeffery also informed Wright that Classroom Direct's employees
were "not able to perform any work on your new systems"
because that "would constitute a conflict of interest on their
part and would be grounds for termination." Nevertheless,
from November 2004 to January 2005, Teacher Direct paid Larry
Riley, who was employed at that time by Classroom Direct, to
create the first Teacher Direct catalog and to build Teacher
Direct's Web site. Riley performed this work from his home at
night. Shortly after the first Teacher Direct catalog was
published, Riley left Classroom Direct to work for Teacher
Direct.
In February 2005, Teacher Direct published its first
catalog and mailed it to approximately 300,000 teachers
nationwide. Despite the fact that Teacher Direct was a
newcomer to the school-supply business, the cover of the first
Teacher Direct catalog stated in large, bold type: "We're
Baaack." The cover prominently displayed Carmichael, the
former spokesperson for Classroom Direct, using a distinctive
1060739; 1060740
8
pointing gesture with her thumb and forefinger at a 90-degree
angle, a gesture she had used previously on Classroom Direct's
catalogs. The inside cover page contained the following
message from Carmichael:
"'Crazy Days' are here again, and we are back and
better than ever!
"Several years ago we sold our Company. I resumed
teaching full time and discovered first hand that
value, selection, and service are of primary
importance in choosing a supplier. ..."
The message was signed "Celita P. Carmichael" as "president."
Classroom Direct's catalogs had also referred to Carmichael as
the "president" of its school-supply division. The term
"Crazy" had appeared in Classroom Direct's catalogs in which
Carmichael was its spokesperson using the slogan "Carmichael's
Crazys" to advertise special bargain prices. The table of
contents of the Teacher Direct catalog was organized with
almost identical section headings arranged in the same order
and highlighted in the same colors as the table of contents in
Classroom Direct catalogs. The Teacher Direct catalog also
used the same system of numbering catalog items as the
Classroom Direct catalogs used, a three-digit numeric prefix
identifying the catalog number, followed by the item number
for a specific product, except that Teacher Direct began its
1060739; 1060740
9
three-digit prefix with the number "3" instead of the number
"1" used by Classroom Direct.
In March 2005, Classroom Direct began receiving orders by
telephone and mail from customers that indicated confusion
between Classroom Direct and Teacher Direct. On March 24,
2005, Classroom Direct's counsel wrote a letter to Teacher
Direct concerning the customer confusion, which Classroom
Direct claimed resulted from the Teacher Direct catalog. The
letter demanded that Teacher Direct stop using the Teacher
Direct name and that it change other aspects of its catalog.
In April 2005, Teacher Direct mailed its second catalog.
The second catalog featured a banner in the upper left corner
of the cover page that declared a "Grand Re-Opening." The
cover page also stated that Teacher Direct had "[o]ver a
decade of experience working for you" and announced telephone
and facsimile numbers that were described as "new," although
they were the same as the numbers printed on the February 2005
catalog cover. The other similarities to the Classroom Direct
catalogs were retained in the April 2005 Teacher Direct
catalog,
including
prominently
featuring
Carmichael's
distinctive hand gesture. By this time, both companies began
to receive orders combining items from both the Classroom
1060739; 1060740
10
Direct and Teacher Direct catalogs. Some orders also bore the
"Re-Print" trademark name, further confusing the identity of
the companies.
On April 25, 2005, Classroom Direct sued Teacher Direct
in the United States District Court for the Northern District
of Alabama, alleging that Teacher Direct had engaged in unfair
competition in violation of § 1125(a) of the Lanham Act by
adopting marketing and business practices that had caused, and
were likely to continue causing, confusion or mistake among
customers. In May 2005, the parties mediated the case, and on
June 3, 2005, the parties reached a settlement, which was
presented to the United States District Court. According to
the settlement, Teacher Direct represented and warranted that
it had not "received any orders (whether or not filled) that
bear any information indicating the order was directed to or
intended for CLASSROOM DIRECT." The settlement agreement also
provided that Classroom Direct would inform Teacher Direct of
orders it received that bore some indication they were for
Teacher Direct. On July 1, 2005, the parties executed the
settlement agreement. It further provided:
"TEACHER DIRECT will not use in any future mailing,
marketing or sales literature, including without
limitation any websites, the pointing gesture (thumb
1060739; 1060740
11
and forefinger extended) of Ms. Celita Carmichael,
the statement 'We're back' (or misspelled words of
similar meaning such as 'We're baaack' or other
derivations thereof) and/or the term 'crazy' (or
misspelled
words
of
similar
meaning
such
as
'Craaaazy'
or
other
derivations
thereof)
in
connection
with
any
offering
with
which
Ms.
Carmichael's name or image is used."
In late July 2005, Teacher Direct published its third
catalog, a back-to-school catalog. Although Carmichael
appeared on the cover, the hand gesture was changed to a
"thumbs-up" rather than a pointing gesture. The back-to-
school catalog contained on the inside front cover what the
parties refer to as a "thumbnail" reproduction of the cover of
the initial Teacher Direct catalog depicting Carmichael using
the distinctive thumb and forefinger pointing gesture and the
statement "We're Baaack." The back-to-school catalog was
mailed to twice as many educators as the initial catalog, and
the purpose of the thumbnail reproduction of the initial
catalog was to invite new customers to order a free copy of
its initial catalog.
In August 2005, Classroom Direct sued Teacher Direct in
the Jefferson Circuit Court, alleging that Teacher Direct
breached the settlement agreement when it published its back-
to-school catalog using certain images and phrases it had
1060739; 1060740
12
agreed to discontinue using. Teacher Direct then filed a
counterclaim
against
Classroom
Direct,
alleging
that
Classroom
Direct breached the settlement agreement when it did not
produce all the orders it had received that indicated they
were for Teacher Direct or that were attempting to order items
from the catalogs of both companies, and alleging tortious
interference with Teacher Direct's business relations by
processing orders intended for Teacher Direct. In October
2005, Classroom Direct discovered that one of its employees,
Kim Burch, had been e-mailing company reports revealing
detailed financial information to a friend who was employed at
Teacher Direct. The record reflects that these e-mails were
forwarded to Womack, although he testified that he deleted
them once he realized what they were. Classroom Direct
immediately discharged Burch. In December 2005, Classroom
Direct discovered that Burch, who was later hired by Teacher
Direct, had been intercepting customer orders that indicated
a confusion between the two companies and sending them to
Teacher Direct since March 2005. In January 2006, Classroom
Direct amended its complaint, seeking to set aside the
settlement agreement with Teacher Direct because, it alleged,
Teacher Direct had fraudulently represented that it had not
1060739; 1060740
13
received any orders intended for Classroom Direct or
attempting to order items from the catalogs of both companies
at the time of the settlement agreement when it in fact
possessed all the orders sent to it by Burch. Because both
companies continued to receive orders indicating confusion as
to the identity of the companies, Classroom Direct asserted a
claim of unfair competition under the Lanham Act and unfair
competition under Alabama common law. Finally, Classroom
Direct alleged intentional interference with employment
relations.
Shortly thereafter, Classroom Direct learned that Teacher
Direct had been using the Re-Print service mark in the school-
supply market by using its corporate name, Re-Print/Draphix,
LLC, on Internal Revenue Service forms requested by school
systems and by offering copies of its architectural- and
engineering-supply catalogs, which properly bore the name Re-
Print/Draphix, in connection with the educational- and school-
supply catalogs bearing the name Teacher Direct. Classroom
Direct gave Teacher Direct notice of termination of the
service-mark agreement that had been executed in 2001. In
response, Teacher Direct filed an amended counterclaim against
Classroom Direct alleging that Classroom Direct had breached
1060739; 1060740
14
the service-mark agreement in bad faith and seeking a judgment
declaring that its use of its corporate name was not a breach
of the service-mark agreement. Teacher Direct later filed a
second amended counterclaim against Classroom Direct alleging
that
Classroom
Direct had breached the asset-purchase
agreement
by
improperly
terminating
the
service-mark
agreement.
After both parties filed motions for a summary judgment,
the trial court entered an order in October 2006 denying
Classroom Direct's motion for a summary judgment as to its
claims for rescission of the settlement agreement, fraud, and
unfair competition; granting Classroom Direct's motion for a
summary judgment on Teacher Direct's counterclaims; and
denying Teacher Direct's motion for a summary judgment on
Classroom Direct's claims. The trial court also directed that
Classroom Direct's claim for rescission of the settlement
agreement based on the alleged fraud of Teacher Direct would
be bifurcated from the other remaining claims and decided
after the jury had returned a verdict on those other claims.
The case proceeded to a jury trial on Classroom Direct's
claims of unfair competition pursuant to the Lanham Act,
fraud,
and
intentional
interference
with
employment
relations.
1060739; 1060740
15
After several days of testimony, the jury returned a general
verdict in favor of Classroom Direct and awarded compensatory
damages
of
$175,000.
The
jury
returned
a
special
interrogatory allocating $150,000 of the damages award to
Classroom Direct's unfair-competition claim. After the trial
court entered a judgment on the jury verdict, Classroom Direct
filed postjudgment motions seeking a permanent injunction,
additional monetary relief, and attorney fees and costs.
After a hearing, the trial court entered an injunction
prohibiting certain specified conduct by Teacher Direct and
requiring a prominent disclaimer on all catalogs, Web sites,
and order forms for five years, but allowed the continued use
of the name Teacher Direct and of Carmichael's name and image
as the spokesperson for Teacher Direct. The trial court
granted Classroom Direct's motion for additional monetary
relief, awarding an additional $269,758 in damages to the
$150,000 awarded by the jury on the Lanham Act claim for a
total award of $419,758 on the Lanham Act claim. Added to the
$25,000 in damages awarded by the jury not attributable to the
Lanham Act claim, the total compensatory-damages award was
$444,758. Finally, the trial court denied the motion for
1060739; 1060740
16
attorney fees and awarded one-half of the costs of the
proceeding to Classroom Direct.
Classroom Direct then filed a motion seeking disposition
of its remaining claim for rescission of the settlement
agreement. The trial court granted the motion and rescinded
the settlement agreement. Classroom Direct then appealed from
those aspects of the trial court's postjudgment order only
granting partially its motion for an injunction, denying its
motion for attorney fees, and awarding it only one-half of the
costs. Teacher Direct cross-appealed from that aspect of the
trial court's order awarding additional monetary relief to
Classroom Direct pursuant to the Lanham Act.
II. Classroom Direct's Appeal (no. 1060739)
A. Injunctive Relief
We first address Classroom Direct's argument that the
trial court tailored its injunction too narrowly to afford
Classroom Direct the more sweeping relief it argues is
necessary to prevent continued unfair competition by Teacher
Direct. We note that the issue whether Teacher Direct
violated the Lanham Act is not before us in this case. The
jury decided that issue in favor of Classroom Direct and
1060739; 1060740
17
adversely to Teacher Direct, and Teacher Direct did not raise
that issue in its cross-appeal.
1. Standard of review
Classroom Direct argues that this Court applies a de novo
standard of review to a trial court's entry of a permanent
injunction, relying upon Weeks v. Wolf Creek Industries, Inc.,
941 So. 2d 263, 271 (Ala. 2006):
"'The
applicable
standard
of
review
[of
injunctive relief] depends on whether the trial
court
entered
a
preliminary
injunction
or
a
permanent injunction. A preliminary injunction is
reviewed under an abuse-of-discretion standard,
whereas a permanent injunction is reviewed de novo.'
TFT, Inc. v. Warning Sys., Inc., 751 So. 2d 1238,
1241-42 (Ala. 1999); see also Smith v. Madison
County Comm'n, 658 So. 2d 422, 423 n.1 (Ala. 1995)."
Nevertheless, this Court has noted that a trial court's
consideration of ore tenus testimony has a bearing upon the
standard of review we apply to the entry of a permanent
injunction. Here, the trial court considered ore tenus
testimony at the hearing on the postjudgment motions filed by
Classroom Direct.
"The trial court
entered
a
permanent
injunction,
and we review de novo the entry of a permanent
injunction. TFT, Inc. v. Warning Sys., Inc., 751
So. 2d 1238, 1241 (Ala. 1999). However, the trial
court also conducted a bench trial at which evidence
was presented ore tenus.
1060739; 1060740
This Court now uses the phrase "exceeded its discretion"
1
rather than the phrase "abused its discretion." The standard
of review remains the same. See Kyser v. Harrison, 908 So. 2d
914, 918 (Ala. 2005); Ex parte Family Dollar Stores of
Alabama, Inc., 906 So. 2d 892, 899 (Ala. 2005).
18
"'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;
its
determination will not be disturbed unless
it is clearly erroneous, without supporting
evidence, manifestly unjust, or against the
great weight of the evidence. However,
when the trial court improperly applies the
law to the facts, no presumption of
correctness exists as to the court's
judgment.'
"American Petroleum Equip. & Constr., Inc. v.
Fancher, 708 So. 2d 129, 132 (Ala. 1997) (citations
omitted)."
Collins v. Rodgers, 938 So. 2d 379, 384 (Ala. 2006).
Cases from the United States Court of Appeals for the
Eleventh Circuit reflect that the federal courts apply an
abuse-of-discretion standard of review, which this Court now
refers to as whether the trial court has exceeded its
discretion, to the entry of a permanent injunction in a case
1
brought pursuant to the Lanham Act. See, e.g., Aronowitz v.
Health-Chem Corp., 513 F.3d 1229, 1241-42 (11th Cir. 2008):
"Finally, in connection with the trademark
infringement claim, Aronowitz challenges the breadth
of the permanent injunction imposed by the district
1060739; 1060740
19
court as part of its Amended Final Judgment. We
review the issuance of permanent injunctions for
abuse of discretion. Simmons v. Conger, 86 F.3d
1080, 1085 (11th Cir. 1996). Federal courts may
grant permanent injunctions where infringement is
found to have occurred in order to prevent further
infringing use of a mark, and such injunctions
should be designed to keep the former infringers 'a
safe distance away' from the protected mark. See
Howard Johnson Co. v. Khimani, 892 F.2d 1512, 1517
(11th Cir. 1990)."
Although this Court has not found a United States Supreme
Court case discussing the standard of review to be applied
specifically to a permanent injunction entered in a Lanham Act
case, we note the discussion in eBay Inc. v. MercExchange,
L.L.C., 547 U.S. 388, 391 (2006), relied upon by Teacher
Direct, a case reviewing a violation of the Patent Act, 35
U.S.C. § 1 et seq.:
"According to well-established principles of
equity, a plaintiff seeking a permanent injunction
must satisfy a four-factor test before a court may
grant such relief. A plaintiff must demonstrate:
(1) that it has suffered an irreparable injury; (2)
that remedies available at law, such as monetary
damages, are inadequate to compensate for that
injury; (3) that, considering the balance of
hardships between the plaintiff and defendant, a
remedy in equity is warranted; and (4) that the
public interest would not be disserved by a
permanent injunction. See, e.g., Weinberger v.
Romero-Barcelo, 456 U.S. 305, 311-313 (1982); Amoco
Production Co. v. Gambell, 480 U.S. 531, 542 (1987).
The decision to grant or deny permanent injunctive
relief is an act of equitable discretion by the
district court, reviewable on appeal for abuse of
1060739; 1060740
20
discretion. See, e.g., Romero-Barcelo, 456 U.S. at
320."
The United States Court of Appeals for the Sixth Circuit, in
a case arising under the Copyright Act, 17 U.S.C. §§ 502, 503,
broke the issues down as follows: "When a district court
grants a permanent injunction, this court reviews its factual
findings for clear error, legal conclusions de novo, and the
scope of injunctive relief for an abuse of discretion."
Bridgeport Music, Inc. v. Justin Combs Publ'g, 507 F.3d 470,
492 (6th Cir. 2007). Because we are reviewing the entry of a
permanent injunction entered on a Lanham Act claim, we
conclude that it is appropriate to review the issue here
presented as to the scope of the injunction for an excess of
discretion, especially in view of the fact that the trial
court based its findings of fact that led to the crafting of
the injunction upon the verdict in favor of Classroom Direct
after a lengthy trial and after considering ore tenus evidence
during the hearing on the postjudgment motions.
2. Analysis
In order to obtain a permanent injunction, Classroom
Direct was required to prove the following elements:
"To be entitled to a permanent injunction, a
plaintiff must demonstrate success on the merits, a
1060739; 1060740
21
substantial threat of irreparable injury if the
injunction is not granted, that the threatened
injury to the plaintiff outweighs the harm the
injunction may cause the defendant, and that
granting the injunction will not disserve the public
interest. Clark Constr. Co. v. Pena, 930 F. Supp.
1470 (M.D. Ala. 1996). The elements required for a
preliminary injunction and the elements required for
a permanent injunction are substantially similar,
except that the movant must prevail on the merits in
order to obtain a permanent injunction, while the
movant need only show a likelihood of success on the
merits in order to obtain a preliminary injunction.
Pryor v. Reno, 998 F. Supp. 1317 (M.D. Ala. 1998)."
TFT, Inc. v. Warning Sys., Inc., 751 So. 2d 1238, 1242 (Ala.
1999).
The trial court's order stated the following as to
injunctive relief:
"In
regard
to
the
Motion
for
Permanent
Injunction,
the
Court considered the elements
necessary to issue a permanent injunction, namely,
a plaintiff must demonstrate success on the merits,
a substantial threat of irreparable injury if the
injunction is not granted, that the threatened
injury to the plaintiff outweighs the harm the
injunction may cause the defendant, and that
granting the injunction will not disserve the public
interest.
In
addition,
it
is
mindful
that
injunctive relief is an extraordinary remedy and as
such should not be lightly granted. Classroom
Direct demonstrated a likelihood of success on the
merits and that without some relief it may suffer
irreparable injury. However, a sweeping permanent
injunction such as requested by Classroom Direct
seems to outweigh the harm that it would cause
Teacher Direct. There was evidence that such an
injunction may force Teacher Direct and its owners
into bankruptcy.
1060739; 1060740
22
"Accordingly,
the
plaintiff's
Motion
for
Permanent
Injunction is PARTIALLY GRANTED and
PARTIALLY DENIED as follows:
"(a) RePrint/Draphix is allowed to continue to
use the name Teacher Direct, provided that it shall
cause to be placed on the front cover of every
catalog issued hereafter a disclaimer, declaring in
bold, plain language and prominently displayed, a
statement to the effect that it is not, nor [are]
any of its employees or spokespersons affiliated or
connected in any way whatsoever with Classroom
Direct and is, in fact, a direct competitor of
Classroom Direct. A similar disclaimer shall be
placed upon all purchase orders or websites. The
Court understands that the catalog proposed to be
mailed in January, 2007, has already been purchased
and/or printed. Therefore Re-Print/Draphix shall
cause to be placed on the cover of each catalog a
sticker containing the above disclaimer. All future
catalogs shall include the disclaimer as a part of
the front cover of each catalog for a period of five
(5) years.
"(b) Re-Print/Draphix may not use the words
'Crazy'; 'We're back' (including any variation of
the spelling of 'We're back,' such as 'We're
baaaaack'); 'Grand re-Opening'; 'Sold Our Business';
'Original Discount School Supply,' or 'recently sold
our business,' in any mailing, marketing or sales
literature
(including,
without
limitation,
catalogs); and
"(c) Re-Print/Draphix
may
not
use
the
'signature
hand gesture'; which means that Re-Print/Draphix may
not depict any spokesperson with that person's thumb
and index finger extended, in any mailing, marketing
or sales literature (including, without limitation,
catalogs).
"(d)
The
internet
address
Teacherdirect.com;
the
name and likeness of Celita Carmichael, and the
three-digit code may continue to be used by Re-
1060739; 1060740
23
Print/Draphix as there was little evidence of
confusion resulting from these items.
"(e) Re-Print/Draphix is prohibited from using
the word RE-PRINT in any connection regarding the
school supply business including catalogs, websites,
purchase orders or any similar use."
(Capitalization in original.)
Classroom Direct first argues that it is entitled to an
injunction that fully protects it from Teacher Direct's unfair
competition. Classroom Direct objects to the trial court's
allowing Teacher Direct to continue using the name "Teacher
Direct" in the educational- and school-supply business and to
continue using Carmichael as its spokesperson. Classroom
Direct insists that the injunctive relief granted by the trial
court merely prohibited Teacher Direct from using the
competitive elements that it had already discontinued and
that, therefore, the injunction did not grant "effective"
relief. Classroom Direct maintains that it is entitled to an
injunction that completely bars Teacher Direct from continuing
to "confuse" consumers and continuing to profit from having
stolen Classroom Direct's business goodwill. Classroom Direct
relies upon cases such as Cumulus Media, Inc. v. Clear Channel
Communications, Inc., 304 F.3d 1167, 1179 (11th Cir. 2002)
("'"[A] competitive business, once convicted of unfair
1060739; 1060740
24
competition in a given particular, should thereafter be
required to keep a safe distance away from the margin line--
even if that requirement involves a handicap as compared with
those who have not disqualified themselves."'" (quoting
Chevron Chem. Co. v. Voluntary Purchasing Groups, Inc., 659
F.2d 695, 705 (5th Cir. October 23, 1981), quoting in turn
Broderick & Bascom Rope Co. v. Manoff, 41 F.2d 353, 354 (6th
Cir. 1930) (emphasis added in Cumulus Media))).
Teacher Direct argues that the trial court properly
tailored the injunctive relief to the evidence presented in
this case. Teacher Direct points to testimony that the
"Teacher Direct" trademark is considered to have weak "brand"
identification. The trademark attorney who applied for the
registration of "Teacher Direct" as a trademark for Draphix's
school-supply division testified that many company names
contained the word "direct." He stated: "[D]irect is a very
common word used in connection with direct mail, direct
sending of goods to the ultimate consumer, the direct offering
of things. It's used quite widely in commerce." Teacher
Direct admits in its brief only that "there are some
similarities between the catalogs" and cites the testimony of
its marketing expert, who stated that in his opinion the
1060739; 1060740
25
catalogs of the two companies looked "nothing alike." Teacher
Direct
also
downplays
its
use
of
Carmichael
as
its
spokesperson, contending that she "looks strikingly different
in the Teacher Direct catalog" than she looked in the
Classroom Direct catalogs and citing its marketing expert's
testimony that a customer survey showed that the company
spokesperson was the least important factor in a teacher's
decision to purchase supplies from a particular company.
After reviewing the voluminous record in this case,
especially the various catalogs of the two companies, this
Court sees a distinct similarity between the design of Teacher
Direct's 2005 catalogs and the design of Classroom Direct's
2005
catalogs
that
cannot
have
been
accidental
or
coincidental. In addition to the similar design, phrases such
as "sold our company," "we're back," "grand reopening,"
"crazy days," and "new" telephone and facsimile numbers
implied that Classroom Direct and Teacher Direct were, if not
the same company back in business after a sale, then, at the
least, related companies. As a result of legal action,
Teacher Direct eliminated these misleading phrases and
included in later catalogs a disclaimer stapled to the inside
front cover that stated: "As you're already aware, Teacher
1060739; 1060740
26
Direct is a new company and is not affiliated with Classroom
Direct in any way." The catalog printed for distribution in
January 2007 carried a small notice at the bottom of the front
cover that stated: "Teacher Direct is NOT affiliated with
Classroom Direct." (Capitalization in original.) That
catalog, like other catalogs printed after legal action was
initiated, also included a notice above the table of contents
that stated: "Teacher Direct is a new company and is not
affiliated with Classroom Direct. We apologize for any
confusion that has occurred between the two companies. Please
make sure your records reflect the correct contact information
for each company." The permanent injunction issued by the
trial court requires a stronger disclaimer prominently
displayed in bold print that includes the statement that
Teacher Direct is "a direct competitor of Classroom Direct."
For those catalogs already printed but not yet mailed, the
trial court required Teacher Direct to attach to those
catalogs a sticker containing the disclaimer.
So far as Carmichael is concerned, she honored the
noncompetition clause in her contract after Classroom Direct
discharged her as its spokesperson, and we can find no reason
for the trial court to have prohibited Teacher Direct from
1060739; 1060740
27
employing her as its spokesperson. The problem with using
Carmichael's image initially was that Teacher Direct had her
use a distinctive hand gesture she had previously used on
Classroom Direct's catalogs. Both Carmichael and her son were
depicted in various places in Classroom Direct's catalogs for
several years using the pointing gesture with the thumb and
index finger at a 90-degree angle. Carmichael's hairstyle was
slightly different when she appeared for the first time on the
Teacher Direct 2005 catalog, but the hand gesture clearly tied
her to earlier Classroom Direct catalogs. Also, she
identified herself as the "president" of Teacher Direct, the
same title she had used as spokesperson for Classroom Direct.
After legal action was commenced, Teacher Direct placed a
sticker on the front cover of its catalogs that hid
Carmichael's hand but, as previously noted, included the
thumbnail photograph of the initial cover on the inside front
cover that still depicted Carmichael making the distinctive
gesture. The photograph of Carmichael on the front and inside
cover pages of the catalog printed for distribution in January
2007 reflects that she has dramatically changed her hairstyle,
uses only a commonplace "thumbs-up" hand gesture, and signs
her message on the inside front cover as "Celita P.
1060739; 1060740
28
Carmichael, Third Grade Teacher." We also note that she
begins her message by stating: "The Teacher Direct brand,
established in 2005 ...."
In crafting the permanent injunction, the trial court
prohibited Teacher Direct from using phraseology implying a
relationship between Teacher Direct and Classroom Direct and
from depicting Carmichael using the distinctive hand gesture
identified with Classroom Direct. It also required a stronger
and more prominent disclaimer for five years, clearly stating
that the companies are not related and that they are, in fact,
competitors. In light of the foregoing, this Court cannot say
that the trial court exceeded its discretion in allowing
Teacher Direct to continue to use the name "Teacher Direct"
and in allowing Carmichael to continue as its spokesperson.
Classroom Direct next argues that "[t]he law does not
recognize a self-imposed financial difficulty caused by
knowingly continuing one's own unlawful conduct as a
'hardship' that precludes injunctive relief." Classroom
Direct contends that the trial court erred when it considered
testimony at the postjudgment hearing from Teacher Direct's
chief executive officer, Womack, that Teacher Direct had
already printed the catalogs due to be mailed to customers for
1060739; 1060740
29
2007 and that the company might face bankruptcy if it were not
allowed to use the name Teacher Direct. This potential
hardship is not a valid consideration, Classroom Direct
argues, because, it says, Teacher Direct brought the hardship
upon itself by having the catalogs printed after the jury
returned the verdict against Teacher Direct finding it liable
for unfair competition under the Lanham Act. Classroom Direct
relies on cases such as Opticians Association of America v.
Independent Opticians of America, 920 F.2d 187, 197 (3d Cir.
1990) ("By virtue of [its] recalcitrant behavior, the
[defendant] can hardly claim to be harmed, since it brought
any and all difficulties occasioned by the issuance of an
injunction upon itself.").
Teacher Direct argues that the seasonal nature of the
school-supply business made it mandatory for Teacher Direct to
proceed with printing its 2007 catalogs and that its doing so
should not be a basis upon which to prohibit it from
continuing to use the name Teacher Direct.
Womack testified at the postjudgment hearing that
catalogs in the school-supply direct-mail business must be
sent to customers in January or early February in order not to
miss the primary buying season in the industry. Experts for
1060739; 1060740
30
both companies had testified at trial to the seasonality of
the school-supply industry. Womack testified further at the
postjudgment hearing:
"Q.
... What would be the impact on your company if
the injunction [against using the name 'Teacher
Direct'] was entered?
"A.
We would be totally out of business. Twenty-
five people would lose their jobs, and me and
my business partner would have to file personal
bankruptcy.
"Q.
Why ... would those consequences occur?
"A.
Well, I've got catalogs that already have been
produced with the name Teacher Direct on it,
with Celita Carmichael's image. ... And we're
trying to mail those catalogs the first week of
January. If we had to change all this, there
is no way I could make the January date. Just
having to destroy those catalogs alone would
put me out of business, because I still would
have to pay for those catalogs.
"Q.
Why is it, Mr. Womack, that this January date
is significant? Why not wait until February or
later?
"A.
Well, the January date sets the pace for the
entire season. And what happens is, the
teacher's buying cycle, she places her order or
she makes her purchasing decision in the months
of February, March, and April. And then she
submits
those
requisitions
to
the
school
administrators, who then process the purchase
order and then submit that to the school supply
companies like Teacher Direct and Classroom
Direct during the summer months of that year.
So we have to have our catalog there in January
1060739; 1060740
31
in order to be able to get those orders for the
following summer.
"Q.
Now, what about publishing schedule? How long
has this schedule been put in place?
"A.
I first got the confirmation from our printer
in August of 2006.
"....
"Q.
So back in August you were planning with your
printer to publish the catalog that you hoped
to produce in January, obviously subject to the
Court's ruling?
"A.
That's correct.
"Q.
What other deadlines were imposed at the
printer at that time?
"A.
The last date to change that catalog was
October 21. All of our images and pages had to
be there on November 26. They had a press date
of December 5, and then our mail list has to be
there on December 7."
In light of the foregoing testimony, we conclude that the
evidence that Teacher Direct knowingly continued unlawful
conduct and thereby invited potential bankruptcy by proceeding
with the printing of its 2007 catalogs after the jury had
returned the verdict against it finding that it had engaged in
unfair competition on November 9, 2006, was not undisputed.
By early November, according to Womack, the catalog had
already been designed and delivered to the printer in
1060739; 1060740
32
accordance with the commonly accepted schedule in the
industry. In light of Womack's testimony and in light of our
conclusion that the trial court did not exceed its discretion
in allowing Teacher Direct to continue using its name and
Carmichael's image, we cannot say that the trial court
exceeded
its
discretion in considering, in fashioning
injunctive relief, the potential that Teacher Direct would
face bankruptcy if it were forced to operate under a new name
and find a new spokesperson.
Finally, Classroom Direct argues that the trial court
"erred in attempting to analyze the components of Teacher
Direct's unfair competition in isolation." Classroom Direct
thus argues that the trial court erred in allowing Teacher
Direct
to
continue
using
the
Internet
address
teacherdirect.com, the three-digit numbering system in the
catalog, and Carmichael's likeness because, it says, the trial
court should not have analyzed each component in a vacuum to
determine whether that component created a likelihood of
confusion, citing, for example, Schwinn Bicycle Co. v. Ross
Bicycles, Inc., 870 F.2d 1176 (7th Cir. 1989):
"'The court need not focus on merely one facet of
plaintiff's total selling "image," as in trademark
law. To determine unfair competition, the court
1060739; 1060740
33
must consider the total image of plaintiff's
product, package and advertising and compare this
with defendant's image. If defendant's trade dress
is likely to cause confusion with plaintiff's trade
dress, then a finding of unfair competition is
warranted.'"
870 F.2d at 1182 n.12 (quoting 1 J. Thomas McCarthy,
Trademarks and Unfair Competition § 8:1 at 282-83 (2d ed.
1984)). Classroom Direct maintains that the issue is not
whether each individual component of Teacher Direct's unfair
competition would create confusion by itself in a vacuum, but
whether Teacher Direct was able to unfairly compete by using
all the various components of its "unfair-competition scheme,"
in which the company name, Web site domain name, catalog
numbering system, and spokesperson's likeness were all
critical parts. Therefore, Classroom Direct argues, all the
components of Teacher Direct's unfair competition must be
enjoined.
Teacher Direct argues that "while there are some
similarities between the catalogs ... the jury's Lanham Act
award of only $150,000 in damages ... demonstrates that the
jury found that these were minor infringements when the
evidence as a whole was considered." Teacher Direct's
principal brief at 28-29. Teacher Direct then argues that the
1060739; 1060740
34
trial court correctly issued an injunction tailored to remedy
the harm supported by the evidence.
We do not agree with Classroom Direct that the trial
court considered the use of the Internet domain name, the
three-digit numbering system, and Carmichael's image in a
vacuum. The trial court properly considered all the elements
Classroom Direct was required to prove in order to be entitled
to a permanent injunction: (1) Classroom Direct prevailed on
the merits when the jury returned a verdict in its favor on
its Lanham Act claim, (2) the testimony at the trial and at
the postjudgment hearing reflected a substantial threat of
irreparable injury to Classroom Direct without the injunction,
(3) the threatened injury to Classroom Direct in most aspects
of Teacher Direct's catalog design outweighed the harm the
injunction might cause Teacher Direct, and (4) granting the
injunction would serve the public interest in eliminating the
confusion between the two companies. In crafting the
injunction, the trial court determined that prohibiting
Teacher Direct's use of its name, the Internet domain name,
Carmichael as its spokesperson, and the three-digit code would
likely cause more harm to Teacher Direct than any threatened
1060739; 1060740
35
injury to Classroom Direct by allowing Teacher Direct to
continue to use those items.
We emphasize that the trial court tailored a remedy here
by balancing the equities and by considering the potential
harm to both companies and the public interest, including the
potential harm to Teacher Direct's creditors in the event of
a bankruptcy proceeding. This Court entrusts the fashioning
of injunctive relief to the discretion of this state's trial
courts. In Saunders v. Florence Enameling Co., 540 So. 2d
651, 655 (Ala. 1988), this Court reviewed a permanent
injunction in a case in which the defendant argued that if the
trial court had applied the comparative-injury doctrine, it
would not have entered the injunction.
"The defendants conclude that, on the evidence
presented, the so-called comparative injury doctrine
prevented
the
trial
judge
from
granting
the
injunction. Citing Daniels v. Chapuis, 344 So. 2d
500 (Ala. 1977), they argue that the trial court was
required to weigh the comparative injury to the
parties and to the general public because of the
grant or denial of the injunction and that the
evidence showed that the injury to the plaintiffs in
this case would be small compared to the injury to
the defendants and the general public.
"'It is established Alabama law that,
in determining whether an injunction should
issue, wide discretion is accorded the
trial judge hearing the application and
making the decision....
1060739; 1060740
36
"'....
"'The "comparative injury doctrine"
has been generally recognized in American
jurisprudence and is but a species of the
balancing of the equities principle. Thus,
we adopt this doctrine for application in
appropriate cases as it is set forth in 42
Am. Jur. 2d, Injunctions, § 56, pp. 798,
799. (See also Restatement, Torts, § 941):
"'"Injunctions are never granted
when
they
are
against
good
conscience,
or
productive
of
hardship, oppression, injustice,
or public or private mischief,
and it may be said to be the duty
of the court whose jurisdiction
is invoked to secure injunctive
relief,
when
considering
the
application,
to
consider
and
weigh the relative convenience
and
inconvenience
and
the
comparative
injuries
to
the
parties and to the public which
would result from the granting or
refusal
of
the
injunction
sought."'
"Daniels v. Chapuis, 344 So. 2d 500, 503 (Ala.
1977).
"Although we agree with the defendants that the
trial
judge
could
have
properly
applied
the
'comparative injury doctrine' in this case, we are
not persuaded that he did not do so or that his
order is an abuse of his discretion. To the
contrary, the trial judge's order is carefully
tailored to prevent only the defendants' use of the
particular process in question. The order does not
force the defendants to stop production, nor does it
close their business. It enjoins only their
production
of
one
particular
product--fluxing
1060739; 1060740
37
pipe--by one particular method. Based on our
reading of the record, we hold that the trial judge
did not abuse his discretion by issuing the
permanent injunction."
(Footnote omitted.)
The Eleventh Circuit has also emphasized the equitable
principles involved in entering appropriate injunctions in
cases in which there has been a Lanham Act violation:
"Section 34(a) of the Lanham Act directs
district courts to apply traditional equitable
principles when fashioning injunctive relief in
trademark cases: 'The several courts vested with
jurisdiction of civil actions arising under this Act
shall have power to grant injunctions, according to
the principles of equity and upon such terms as the
court may deem reasonable....' 15 U.S.C.A. §
1116(a)
(West
Supp.
1995)
(emphasis
added).
Equitable principles require consideration of the
unique circumstances of each case, with due regard
for
flexibility, practicality, and the public
interest:
"'The essence of equity jurisdiction has
been the power of the Chancellor to do
equity and to mould each decree to the
necessities
of
the
particular
case.
Flexibility
rather
than
rigidity
has
distinguished it. The qualities of mercy
and practicality have made equity the
instrument
for
nice
adjustment
and
reconciliation between the public interest
and private needs as well as between
competing private claims.'
"Hecht Co. v. Bowles, 321 U.S. 321, 329-30, 64 S.
Ct. 587, 592, 88 L. Ed. 754 (1944).
1060739; 1060740
38
"'In trademark cases, the scope of the
injunction to be entered depends upon the
manner in which plaintiff is harmed, the
possible means by which that harm can be
avoided, the viability of the defenses
raised, and the burden that would be
imposed on defendant and the potential
effect
on
competition
between
the
parties.... "The law requires that courts
closely tailor injunctions to the harm that
they address."'
"4 J. Thomas McCarthy, McCarthy on Trademarks and
Unfair Competition, § 30.03[1] (4th ed. 1995)
(quoting ALPO Petfoods v. Ralston Purina Co., 913
F.2d 958, 972 (D.C. Cir. 1990)). Therefore, we have
stated that '[t]he equitable relief that is granted
should be only that which is required to distinguish
the two products, and no more.' B.H. Bunn Co. v.
AAA Replacement Parts Co., 451 F.2d 1254, 1270 (5th
Cir. 1971)."
SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d
1325, 1335-36 (11th Cir. 1996) (final emphasis added).
In light of all the testimony presented to the trial
court and all the factors the trial court took into
consideration before entering the injunction, we cannot say
that the trial court exceeded its discretion in allowing
Teacher Direct to retain the specified elements of business
use and catalog design discussed above. Classroom Direct
prevailed, but it was not legally entitled to an injunction
that stripped Teacher Direct of its name, spokesperson, and
code numbers, and essentially put Teacher Direct out of
1060739; 1060740
39
business. We conclude that the permanent injunction entered
by the trial court provided effective relief to Classroom
Direct from Teacher Direct's unfair competition, even though
it did not award to Classroom Direct all the relief that it
sought.
B. Attorney Fees and Costs
We next address Classroom Direct's argument that the
trial court erred in denying its motion for an attorney-fee
award and in awarding it only one-half of the costs of this
litigation.
1. Standard of review
Although Classroom Direct acknowledges that the "typical"
standard of review of an attorney-fee award is whether the
trial court exceeded its discretion, citing Battle v. City of
Birmingham, 656 So. 2d 344, 347 (Ala. 1995), it contends that
appellate review of an attorney-fee award is de novo when the
trial court applies the wrong legal standard, citing Laster ex
rel. Laster v. Norfolk Southern Ry., [Ms. 1050532, January 5,
2007] ___ So. 2d ___ (Ala. 2007). Classroom Direct does cite
one case specifically dealing with attorney-fee awards under
the Lanham Act, Securacomm Consulting, Inc. v. Securacom Inc.,
224 F.3d 273, 279 (3d Cir. 2000), which states:
1060739; 1060740
40
"We review the District Court's determination
that this is an exceptional case for abuse of
discretion, 'unless, of course, the district court
applied the wrong standard, which would be an error
of law.' Ferrero U.S.A., Inc. v. Ozak Trading,
Inc., 952 F.2d 44, 48 (3d Cir. 1991). Accordingly,
our review of the scope and meaning of the term
'exceptional' as used in § 35(a) [of the Lanham Act]
is plenary, but our ultimate review of the District
Court's [attorney-fee] award is for abuse of
discretion."
Teacher Direct contends that we review the attorney-fee award
under § 1117 of the Lanham Act to determine whether the trial
court
exceeded
its
discretion,
citing
St.
Charles
Manufacturing Co. v. Mercer, 737 F.2d 891, 894 (11th Cir.
1983) ("The award of attorney's fees [under § 1117 of the
Lanham Act] is within the discretion of the district court.").
Our review of the trial court's attorney-fee award under the
Lanham Act is clearly under an excess-of-discretion standard.
Neither party discusses our standard of review of a
ruling on an attorney fee provided for by contract, to which
we apply a de novo review.
"As long as the contractual terms are clear and
unambiguous, questions of their legal effect are
questions of law. Commercial Credit Corp. v.
Leggett, 744 So. 2d 890 (Ala. 1999). Thus, we apply
a de novo review to a trial court's determination of
whether a contract is ambiguous and to a trial
court's determination of the legal effect of an
unambiguous contract term."
1060739; 1060740
41
Winkleblack v. Murphy, 811 So. 2d 521, 525-26 (Ala. 2001). It
is also a well-established principle that '"[w]hen a trial
court does not make specific findings of fact concerning a
particular issue, an appellate court will assume that the
trial court made those findings that would have been necessary
to support its judgment, unless these findings would be
clearly erroneous." Ex parte Byars, 794 So. 2d 345, 349 (Ala.
2001).
Moreover, neither party addresses the standard of review
applicable to an award of costs; however, this Court's caselaw
is well settled that the taxation of costs is discretionary
with the trial court. See, e.g., Smith v. Smith, 482 So. 2d
1172, 1175 (Ala. 1985) ("The taxation of costs pursuant to
[Rule 54(d), Ala. R. Civ. P.,] is generally left to the sound
discretion of the trial judge."); Vulcan Oil Co. v. Gorman,
434 So. 2d 760, 762 (Ala. 1983) ("[T]he taxation of costs ...
rests in the discretion of the trial judge, whose decision
will not be reversed unless clear abuse is shown.").
2. Analysis
(a) Attorney fees
The trial court ordered each party to be responsible for
its own attorney fees pursuant to the American rule, which
1060739; 1060740
42
does not require a losing party to pay the attorney fees of
the winning party, as a general rule. However, there are
exceptions to that rule. As we recently stated in City of
Bessemer v. McClain, 957 So. 2d 1061, 1078 (Ala. 2006):
"'[A]ttorney fees may be recovered if they are provided for by
statute or by contract or if they are called for by special
equity ....'" (quoting Battle v. City of Birmingham, 656 So.
2d 344, 347 (Ala. 1995)).
Classroom Direct first argues that it is entitled to
attorney fees by contract. The asset-purchase agreement
executed by the parties in 2001 when Teacher Direct purchased
the architectural- and engineering-supply business from
Classroom Direct provides as follows with respect to attorney
fees:
"Litigation Costs. In the event it becomes
necessary for either party to initiate litigation
for the purpose of enforcing any of its rights
hereunder or for the purpose of seeking damages for
any violation hereof, then, in addition to all other
judicial
remedies
that
may
be
granted,
the
prevailing party shall be entitled to recover
reasonable attorneys' fees and all other costs that
may be sustained by it in connection with such
litigation."
Even though the provision regarding litigation costs appears
only in the asset-purchase agreement, Classroom Direct
1060739; 1060740
43
contends that it is fully applicable to claims made under the
service-mark agreement because "'two or more instruments
executed contemporaneously by the same parties in reference to
the same subject matter constitute one contract'" (quoting
Lloyd Noland Found., Inc. v. City of Fairfield Health Auth.,
837 So. 2d 253, 267 (Ala. 2002), quoting in turn Haddox v.
First Alabama Bank of Montgomery, N.A., 449 So. 2d 1226, 1229
(Ala. 1984)). The service-mark agreement was an exhibit to
the asset-purchase agreement and was incorporated into the
asset-purchase agreement by reference, and both documents were
executed on July 31, 2001; therefore, Classroom Direct
concludes, the two documents constitute one contract.
Classroom Direct states that Teacher Direct, in its first
amended counterclaim, alleged that Classroom Direct had
committed an anticipatory bad-faith breach of the service-mark
agreement by improperly terminating the agreement based on
Teacher Direct's use of the "Re-Print" service mark in the
school-supply market, and that in its second amended
counterclaim, Teacher Direct alleged that Classroom Direct had
breached
the
asset-purchase
agreement
by
improperly
terminating the service-mark agreement. The trial court
entered a summary judgment in favor of Classroom Direct on all
1060739; 1060740
44
Teacher Direct's counterclaims. Therefore, Classroom Direct
argues, because the trial court entered a judgment in its
favor on Teacher Direct's claims under the asset-purchase
agreement and the service-mark agreement, it was the
prevailing
party
for
purposes
of
determining
who
is
responsible for litigation costs under the asset-purchase
agreement and the clear, unambiguous, and binding language of
that contract entitles it to attorney fees in this case.
Teacher Direct argues that the trial court did not find that
Classroom
Direct
prevailed
as
to
Teacher
Direct's
counterclaims because, it argues, as the arguments in the case
evolved, the trial court concluded that Teacher Direct's
counterclaims were actually defenses and allowed Teacher
Direct to present those defenses to the jury.
Classroom Direct did not allege a breach-of-contract
claim--the case was tried on claims of unfair competition
under the Lanham Act, fraud, and intentional interference with
employment relations. The trial court did not expressly
address in its postjudgment order Classroom Direct's argument
that the litigation-costs provision in the asset-purchase
agreement entitled it to attorney fees. Under the asset-
purchase agreement, a determination that Classroom Direct was
1060739; 1060740
45
"the prevailing party" was a necessary factual prerequisite to
Classroom Direct's entitlement to an attorney fee. Because
the trial court did not award an attorney fee, we must assume
that it found that Classroom Direct was not "the prevailing
party," a fact necessary to support its judgment. We cannot
overturn such a finding unless it was clearly erroneous. Ex
parte Byars, 794 So. 2d at 349. Our review of this issue is
therefore not de novo, because the trial court did not simply
refuse to enforce an unambiguous contractual provision for an
attorney fee.
Because Classroom Direct did not present a claim of
breach of the asset-purchase agreement to the jury, no portion
of the damages award can be attributed to an alleged breach of
that agreement. In light of the trial court's ruling that
Teacher Direct was entitled to use its counterclaim arguments
as defenses in the trial of this case, we cannot say that the
trial court's implicit finding that Classroom Direct was not
"the prevailing party" within the meaning of the provisions in
the asset-purchase agreement awarding attorney fees to the
prevailing party is clearly erroneous.
Classroom Direct also argues that it is entitled to
attorney fees under the Lanham Act. Section 1117(a) of the
1060739; 1060740
46
Lanham Act states, in pertinent part, that "[t]he court in
exceptional cases may award reasonable attorney fees to the
prevailing party." Clearly, Classroom Direct was the
prevailing party as to its Lanham Act claim. The question,
then, is whether this case is an "exceptional" case in which
the trial court should have awarded attorney fees to the
prevailing party. Although the Lanham Act does not define the
term "exceptional," the United States Court of Appeals for the
Eleventh Circuit has stated that "the legislative history of
the Act suggests that exceptional cases are those where the
infringing
party
acts
in a 'malicious,' 'fraudulent,'
'deliberate,' or 'willful' manner." Burger King Corp. v.
Pilgrim's Pride Corp., 15 F.3d 166, 168 (11th Cir. 1994)
(quoting H.R. Rep. No. 93-524, 93rd Cong., 1st Sess. (1974),
reprinted in 1974 U.S.C.C.A.N. 7132, 7133). Classroom Direct
strenuously argues that the facts of this case compel a
finding that Teacher Direct acted deliberately, willfully, and
fraudulently.
Teacher Direct argues that two factors indicate that this
case should not be considered an exceptional one so as to
trigger an award of attorney fees under the Lanham Act.
First, Teacher Direct says, the jury awarded only $150,000 in
1060739; 1060740
47
compensatory damages on Classroom Direct's Lanham Act claim,
when Classroom Direct sought more than $5,000,000 in
compensatory damages; second, the jury did not award punitive
damages in this case, although it was asked to do so by
Classroom Direct.
In Green v. Fornario, 486 F.3d 100 (3d Cir. 2007), the
United States Court of Appeals for the Third Circuit stated
the question we address here as follows:
"We decide whether the District Court abused its
discretion in declining to award attorneys' fees to
a prevailing party in an unfair competition suit.
This is a discretionary decision, and it turns on
whether the Court believes that the case is, in the
words of the Lanham Act, 'exceptional.' In holding
that the Court did not abuse its discretion here, we
emphasize that the term 'exceptional' is not, as the
plaintiff seems to suggest, a throwaway. Rather, it
calls for a district court to determine whether it
finds
a
defendant's
conduct
particularly
culpable--enough to alter the general American rule
that parties to litigation pay their own attorneys'
fees. We therefore affirm."
486 F.3d at 101. The Third Circuit then discussed a process
for deciding whether to award attorney fees in a Lanham Act
case that we find enlightening:
"Determining whether a case is exceptional is a
two-step process. First, the District Court must
decide whether the defendant engaged in any culpable
conduct. Ferrero U.S.A., Inc. v. Ozak Trading,
Inc., 952 F.2d 44, 47 (3d Cir. 1991). We have
listed bad faith, fraud, malice, and knowing
1060739; 1060740
48
infringement as non-exclusive examples of the sort
of culpable conduct that could support a fee award.
Id.; see also Securacomm Consulting, Inc. v.
Securacom, Inc., 224 F.3d 273, 280 (3d Cir. 2000).
Moreover, the culpable conduct may relate not only
to the circumstances of the Lanham Act violation,
but also to the way the losing party handled himself
during the litigation. Securacomm, 224 F.3d at 282.
Second, if the District Court finds culpable
conduct, it must decide whether the circumstances
are 'exceptional' enough to warrant a fee award.
See Ferrero, 952 F.2d at 49 (noting that the court
may consider factors other than the defendant's
culpable conduct, such as the closeness of the
liability
question
and
whether
the
plaintiff
suffered damages). In sum, a district court may not
award fees without a finding of culpable conduct,
but it may decline to award them despite a finding
of culpable conduct based on the totality of the
circumstances."
486 F.3d at 103-04 (emphasis added).
Whether this Court would find this case an "exceptional"
one that would support an attorney-fee award under the Lanham
Act is not the relevant inquiry here. Under the facts of this
case, because that determination is discretionary with the
trial court, we could affirm a decision to award a fee as well
as the decision not to award a fee. Our research has failed
to locate a case in which a United States Court of Appeals has
reversed a trial court's decision on whether to award attorney
fees in a Lanham Act case. Here, especially in light of the
jury's decision to award minimal compensatory damages and no
1060739; 1060740
49
punitive damages, we cannot say that the trial court exceeded
its discretion in apparently concluding that this case was not
an exceptional case that would mandate an award of attorney
fees under the Lanham Act.
(b) Costs
Rule 54(d), Ala. R. Civ. P., states:
"Except when express provision therefor is made in
a statute, costs shall be allowed as of course to
the prevailing party unless the court otherwise
directs ...."
Classroom Direct emphasizes that portion of Rule 54(d) stating
that costs are to be allowed "as of course" to the prevailing
party. It also argues that § 1117(a) of the Lanham Act
"provides that a prevailing plaintiff 'shall be entitled ...
subject to the principles of equity, to recover ... the costs
of the action.'"
Under either Rule 54(d) or the Lanham Act, the trial
court has discretion in awarding costs. Rule 54(d) states
that costs are to be allowed to the prevailing party "unless
the court otherwise directs," and the award of costs pursuant
to the Lanham Act is "subject to the principles of equity."
As the United States Court of Appeals for the Sixth Circuit
stated: "A district court has the discretion to refuse to
1060739; 1060740
50
award costs to the prevailing party when 'it would be
inequitable under all the circumstances in the case' to do
so." Andretti v. Borla Performance Indus., Inc., 426 F.3d
824, 836 (6th Cir. 2005) (quoting White & White, Inc. v.
American Hosp. Supply Corp., 786 F.2d 728, 730 (6th Cir. 1986)
(emphasis omitted)). After considering all the facts and
circumstances of this case, we cannot say that the trial court
exceeded its discretion in awarding only one-half of the costs
of this action to Classroom Direct.
III. Teacher Direct's Cross-Appeal (no. 1060740)
Finally, we address Teacher Direct's argument on cross-
appeal that the trial court erred in granting Classroom
Direct's motion for an additional award of compensatory
damages in this case pursuant to the provision of the Lanham
Act (Title 15 U.S.C., § 1117) allowing such relief. In Lurzer
GMBH v. American Showcase, Inc., 75 F. Supp. 2d 98, 103-04
(S.D.N.Y. 1998), the court described this portion of the
Lanham Act as follows:
"While it is increasingly clear that claims for
damages or profits under the Lanham Act must first
be tried to a jury even where, as here, the claim is
predicated on intentional deception rather than
actual confusion, cf. Dairy Queen Inc. v. Wood, 369
U.S. 469, 476-79, 82 S. Ct. 894, 8 L. Ed. 2d 44
(1962); Ideal World Marketing v. Duracell, Inc., 997
1060739; 1060740
51
F. Supp. 334, 337-40 (E.D.N.Y. 1998); Gucci America,
Inc. v. Accents, 994 F. Supp. 538, 539 (S.D.N.Y.
1998) (Rakoff, J.); see generally David W. Bargman,
Right to a Jury Trial in Trademark and Copyright
Cases, N.Y.L.J. May 15, 1998 at 1, the Lanham Act
not only provides that a plaintiff's recovery is
generally 'subject to the principles of equity,' 15
U.S.C. § 1117, but also that a district court should
determine whether a jury's award of profits is
'inadequate or excessive' and, if so, enter judgment
for 'such sum as the court shall find to be just,
according to the circumstances of the case.' Id.
In granting this 'unusual power and responsibility'
to the district court, the statute both implements
the broad equitable discretion generally accorded to
courts in trademark matters and recognizes the
occasional 'danger that verdicts based on [technical
trademark] formulations will do serious injustice.'
Stuart v. Collins, 489 F. Supp. 827, 834 (S.D.N.Y.
1980)."
A. Standard of Review
Teacher Direct contends in its brief that "[w]hether the
trial court had authority under 15 U.S.C. § 1117(a) to
increase the jury's verdict is a question of law to be
reviewed de novo." Teacher Direct's principal brief at 37.
However, Teacher Direct cites as authority for its contention
that the trial court's award of additional damages pursuant to
the Lanham Act is to be reviewed de novo only Duncan v. S.N.,
907 So. 2d 428, 430 (Ala. 2005) ("questions of law and the
application of the law to the particular facts are reviewed de
novo"); and Daniels v. East Alabama Paving, Inc., 740 So. 2d
1060739; 1060740
52
1033, 1044 (Ala. 1999) (no statutory authority upon which to
invade the jury's province in awarding compensatory damages
unless the verdict is flawed). Teacher Direct does not cite
any cases regarding the standard of review specifically
applied in Lanham Act cases, as it did in its statement of the
standard of review applicable to the issues raised on appeal
by Classroom Direct. Classroom Direct did not provide a
statement of the standard of review as to the issue raised by
Teacher Direct in its cross-appeal.
We have determined, however, that the standard of review
is clear in the federal courts when the award to be reviewed
is one concerning the recovery of profits by a successful
party under the Lanham Act. See, e.g., Lone Star Steakhouse
& Saloon, Inc. v. Longhorn Steaks, Inc., 106 F.3d 355, 363
(11th Cir. 1997).
"Under the Lanham Act, a successful party
'subject to the principles of equity' may recover:
'defendant's [the infringer's] profits; (2) any
damages sustained by the plaintiff, and (3) the
costs of the action.' 15 U.S.C. § 1117(a); See
Babbit Electronics, Inc. v. Dynascan Corp., 38 F.3d
1161, 1182 (11th Cir. 1994). ... The district
court's findings of profits are questions of fact
subject to the clearly erroneous standard of review.
St. Charles Mfg. Co. v. Mercer, 737 F.2d 891, 893
(11th Cir. 1983) (citing Boston Professional Hockey
Ass'n Inc. v. Dallas Cap & Emblem Mfg., Inc., 597
F.2d 71, 76 (5th Cir. 1979))."
1060739; 1060740
53
Section 1117(a) further provides:
"If the court shall find that the amount of the
recovery based on profits is either inadequate or
excessive the court may in its discretion enter
judgment for such sum as the court shall find to be
just, according to the circumstances of the case."
We agree with the standard embraced by the foregoing federal
courts, and, in light of the express reference to the trial
court's discretion in § 1117, we therefore review the trial
court's findings of profits under an inquiry as to whether its
findings are so clearly erroneous as to exceed its discretion.
B. Analysis
Teacher Direct first argues that the trial court "lacked
the legal authority to increase the damages based on the law
of the case as established in the jury instructions." Teacher
Direct's
principal
brief
at
65.
Citing
Cheairs
v.
Stollenwerck, 232 Ala. 546, 548, 168 So. 589, 590 (1936),
Teacher Direct states the basic rule of law that "as to
substantive rights under the federal statutes, the federal
rule obtains, while the state law governs as to matters
relating to practice and procedure administrative of the
federal act." Teacher Direct then acknowledges that this
Court has stated that "where Congress has given a State court
concurrent jurisdiction to adjudicate a federally-created
1060739; 1060740
54
cause of action, a State court should not afford, deny, or
curtail recovery by an overly protective insistence upon its
dominance in matters procedural." Illinois Central Gulf R.R.
v. Price, 539 So. 2d 202, 205 (Ala. 1988). However, Teacher
Direct goes on to argue that Alabama's procedural rules
nevertheless apply in this case "because Classroom Direct
waived its reliance on any federal procedural rules when it
did not object to jury instructions providing that the jury
would be the sole factfinder on all damages." Teacher
Direct's principal brief at 66-67. The jury instructions in
this case, Teacher Direct says, provided that the jurors were
to be the "sole and exclusive judges of the facts in the case"
and that they would award "any" and "all" damages. Because
Classroom Direct did not object to these charges, Teacher
Direct contends that the charges became the law of the case
and that, if Classroom Direct had wanted to ask for additional
damages, it was required to meet the procedural requirements
in Alabama for requesting an additur. Classroom Direct argues
that it did not need to object to the jury instructions in
order to file its motion for additional monetary recovery
because the Lanham Act expressly permits a trial court to
award additional profits.
1060739; 1060740
55
In essence, Teacher Direct argues that the trial court
lost the authority to adjust the jury verdict based upon
Classroom Direct's failure to object to the jury instructions
giving primacy to the jury as to matters of fact. Teacher
Direct has cited no authority imposing upon a party the burden
of objecting to a jury charge before it can access a practice
expressly contemplated by the Lanham Act that gives the trial
court the authority to award additional damages, as it did
here. Although it is not our obligation to conduct additional
research for an appellant, we note that we have found no
Alabama case foreclosing a verdict-loser's right to seek a new
trial based on inconsistency with the weight of the evidence
when that party has failed to object to the commonplace
instruction under our practice as to the authority of the jury
as to questions of fact. The more sound rule is against such
waiver. See State ex rel. State Highway Commission v.
Belvidere Development Co., 315 S.W.2d 781, 783-84 (Mo. 1958),
in which the Supreme Court of Missouri observed:
"Initially, plaintiff (appellant) contends the
trial court delegated to the jury the authority of
weighing
the
evidence
by
giving
defendants'
Instruction No. 6, which instruction advised in part
that, 'you (the jury) are the sole judges of the
credibility of the witnesses and of the weight of the
1060739; 1060740
56
evidence and the value you will attach to each
witness's testimony. ...'
"....
"In giving Instruction No. 6, an instruction on
the credibility of the witnesses, the trial court in
the prefatory sentence we have quoted was apparently
advising the jury of the jurors' trial function,
vested
exclusively
in
them,
of
judging
the
credibility of witnesses and the weight and value of
the testimony. In making up their verdict it is the
jurors' exclusive province to weigh the evidence
introduced on the factual issues submitted to them.
Of course, the trial court in giving Instruction No.
6 did not delegate or surrender to the jury or waive
the trial court's discretionary power, after verdict,
to grant one new trial on the ground the verdict was
against the weight of the evidence. And the trial
court, by this exercise of discretion, did not
'reverse its position' with respect to the giving of
any instruction."
(Emphasis added.)
Teacher Direct ignores the clear language of § 1117(a)
that allows the trial court, in its discretion, to increase or
decrease the judgment entered if it finds that the damages
award based on profits is "either inadequate or excessive."
Teacher Direct's argument that Classroom Direct waived its
right to ask the trial court to supplement the jury's damages
award is not well-taken.
We proceed, then, to review the trial court's award of
additional damages.
1060739; 1060740
57
"'Under the Lanham Act, damages for trademark
infringement may include (1) the defendant's profits,
(2) any damages sustained by the plaintiff, and (3)
the cost of the action.' Ramada Inns, Inc. v.
Gadsden Motel Co., 804 F.2d 1562, 1564 (11th Cir.
1986) (citing 15 U.S.C. § 1117). Further, the Lanham
Act confers upon district courts 'wide discretion in
determining a just amount of recovery for trademark
infringement.' Id. at 1564-65. Unlike in the case
of future lost profits caused by breach of contract,
'Lanham Act damages may be awarded even when they are
not susceptible to precise calculations.' Id. at
1565."
Aronowitz v. Health-Chem Corp., 513 F.3d at 1241.
Classroom Direct argued to the trial court that the
$150,000 awarded by the jury did not accomplish the mandate of
the Lanham Act that the court should remove all profit or
unjust enrichment associated with the unfair competition from
the defendant.
"An accounting for profits has been determined by
this Court to further the congressional purpose by
making infringement unprofitable, and is justified
because
it
deprives
the
defendant
of
unjust
enrichment and provides a deterrent to similar
activity in the future."
Burger King Corp. v. Mason, 855 F.2d 779, 781 (11th Cir.
1988). Barry Tidwell, a certified public accountant who
testified as an expert witness for Teacher Direct, calculated
that Teacher Direct's net profit for the year 2006 was
$246,930. In reaching that figure, Tidwell reduced Teacher
1060739; 1060740
58
Direct's net profits by $172,828, the amount of legal costs
and attorney fees associated with this litigation. Classroom
Direct argued to the trial court that if Teacher Direct were
allowed to offset its 2006 profit by its attorney fees and
costs, those fees and costs would effectively be shifted to
Classroom Direct and, therefore, that the lowest figure that
would accomplish the mandate of the law would be a damages
award of $419,758 ($246,930 plus $172,828). The trial court
granted Classroom Direct's motion for additional monetary
recovery, awarded an additional $269,758, and entered a
judgment in favor of Classroom Direct for $444,758 ($150,000
in damages awarded by the jury attributable to the Lanham Act
claim plus $269,758 in additional damages for a total of
$419,758 in damages pursuant to the Lanham Act, plus the
$25,000 in damages awarded by the jury attributable to other
claims, for a total award of $444,758). The trial court's
award is supported by Teacher Direct's own expert witness; we
therefore conclude that the trial court's calculation of
damages was not clearly erroneous and that the trial court was
entirely within its discretion in awarding the additional
damages.
1060739; 1060740
59
IV. Conclusion
We affirm all aspects of the trial court's postjudgment
order.
1060739--AFFIRMED.
Cobb, C.J., and See, Stuart, Smith, Parker, and Murdock,
JJ., concur.
1060740--AFFIRMED.
Cobb, C.J., and See, Stuart, Smith, Parker, and Murdock,
JJ., concur. | April 25, 2008 |
64d67d6d-c79f-476d-b12f-2106fde1d88c | Ronald Gilbert v. Rogina Investments | N/A | 1050161 | Alabama | Alabama Supreme Court | Rel 04/04/2008
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, 2007-2008
_________________________
1050161
_________________________
Ronald Gilbert
v.
Rogina Investment Corporation
Appeal from Jefferson Circuit Court
(CV-04-4611)
COBB, Chief Justice.
Ronald Gilbert, the defendant in an action involving a
dispute over a ground lease, appeals from a judgment in favor
of the plaintiff, Rogina Investment Corporation ("Rogina").
We affirm.
1050161
Section 35-4-6, Ala. Code 1975, states:
1
"No leasehold estate can be created for a longer
term than 99 years. Leases for more than 20 years
shall be void for the excess over said period unless
the lease or a memorandum thereof is acknowledged or
approved as required by law in conveyances of real
estate and recorded within one year after execution
in the office of the judge of probate in the county
2
I. Background
Alabama appellate courts have addressed questions
regarding the contract that is the subject of this action on
two previous occasions. See Tedescki v. Rogina Inv. Corp.,
547 So. 2d 454 (Ala. 1989), and Rogina Inv. Corp. v. Gilbert,
816 So. 117 (Ala. Civ. App. 2000) (table). Beatrice Tedescki
executed a ground lease on January 24, 1978, leasing to
Merritt Rogers, Bill Ingram, Ben Power, and Charles Yarbrough
certain real property located on the southeast corner of the
intersection of U.S. Highway 31 and Lorna Road in Hoover ("the
lease agreement"). The lease was for a term of 25 years,
commencing March 1, 1978, but the lessees had the option of
extending the lease for eight successive five-year periods.
The lease agreement was recorded in the Jefferson County
Probate Office on August 9, 1978, as required by § 35-4-6,
Ala. Code 1975. An amendment to the lease agreement was
1
1050161
in which the property leased is situated."
3
executed on December 1, 1978, and recorded in the Jefferson
County Probate Office on July 18, 1985.
In August 1978, Rogers, Ingram, Power, and Yarbrough
executed a mortgage in favor of the National Bank of Commerce
("NBC"), assigning and conveying the lease agreement and the
leasehold estate created thereby to NBC. NBC in turn assigned
its rights, title, and interest in the mortgage and the lease
to Rogina on December 11, 1979. Rogers, Ingram, Power, and
Yarbrough defaulted on the indebtedness secured by the
mortgage; thus, Rogina foreclosed on the leasehold interest.
A foreclosure sale was held, and Rogina was the highest bidder
for the leasehold interest of Rogers, Ingram, Power, and
Yarbrough. The ground lease was then conveyed to Rogina.
Tedescki died in 1989 and bequeathed the property which is the
subject of the lease agreement to her nephew, Gilbert.
On September 16, 1991, Rogina exercised its first option
to extend the term of the ground lease from March 1, 2003,
through February 29, 2008. On March 3, 2000, Rogina exercised
the remainder of its options to extend the term of the ground
lease through February 28, 2043.
1050161
4
The lease agreement contains the following pertinent
provisions:
"Unless prohibited by the terms of any mortgage or
deed of trust, the Lessees may, during the first
twenty (20) years of the primary term of this lease
make such alterations, structural or otherwise, to
the leased property as the Lessees deem desirable in
the conduct of [their] business, including but not
limited to, the demolition of any building presently
existing on said property or any part thereof
without the written consent of Lessor. Lessees,
without the written consent of the Lessors or
Lessors successors in interest, shall, during the
first twenty (20) years of the primary term of this
lease, have the right to tear down or materially
demolish any improvements made by the Lessees on the
leased property, or make any material change or
alteration in such improvements.
".....
"During the last five (5) years of the primary term
hereof and any extension hereof, any demolition or
structural alteration to any improvement shall not
be done without the written consent of Lessor, or
Lessors successors in interest, which said consent
shall not be unreasonably withheld."
The recitation of the amendment to the lease agreement stated
that the January 1978 lease was the "base lease" and that the
parties had agreed to modify the "base lease." Among the
modifications to the base lease was the following:
"Lessees covenant and guarantee that for the first
twenty-five (25) years of this lease an Omelet
Shoppe restaurant shall be operated on the premises
and the failure of Lessees to so construct and
1050161
5
operate an Omelet Shoppe restaurant on the leased
premises shall be a material breach of this
agreement and this lease shall be null and void at
the option of the Lessor; provided, however in no
event shall the termination of this lease for any
reason terminate any sub-lease or assignment which
Lessees herein have entered into with any third
party. In the event of Lessees' default of this
provision, or any provision herein, sub-lessees
shall be entitled to continue in possession and to
make all rental payments direct to Lessor in Lessees
stead."
In 2001, the Omelet Shoppe ceased operation at its
location on the leased property. The structure that housed
the Omelet Shoppe was left in a state of disrepair, including
a leaking roof, rotten eaves, water damage to the interior,
and exposed electrical wires. Rogina hired a contractor to
stabilize the structure. Rogina wrote Gilbert informing him
of the work being done on the Omelet Shoppe structure.
Gilbert responded, stating that Rogina did not have his
permission to make the repairs to the Omelet Shoppe structure
and that by making the repairs Rogina was in violation of the
lease agreement. Gilbert likewise claimed that the lease
agreement was void because the amendment to the lease
agreement executed on December 1, 1978, was not recorded with
the Jefferson County Probate Office until July 18, 1985.
1050161
6
On March 5, 2003, Rogina and O'Henry's Coffee, Inc.,
entered into a letter of intent. O'Henry's indicated that it
would sublease the Omelet Shoppe building for a base term of
five years at a rate of $5,000 per month and make the
alterations necessary to open a coffee shop in the structure.
On April 23, 2003, Rogina's attorney wrote Gilbert's attorney
seeking Gilbert's permission for O'Henry's to make the
structural alterations. In a September 5, 2003, letter,
Gilbert's attorney stated that "no consent has been given to
allow the requested modifications to the Omelet Shoppe
property." On November 10, 2003, Rogina's attorney again
wrote Gilbert's attorney seeking Gilbert's written consent to
allow O'Henry to make structural alterations to the Omelet
Shoppe building. Gilbert replied on November 21, 2003, that
he "deem[ed] the written lease that was executed in 1978 to
have expired after twenty (20) years" and that "any subsequent
occupancy of the subject property by Rogina has been on an
unwritten lease basis." Gilbert stated, however, that he was
willing to negotiate a new contract with Rogina. Gilbert
further stated that even if the 1978 lease agreement was still
in effect, he had insufficient information on which to make an
1050161
7
informed decision about the structural changes O'Henry's
wanted to make to the Omelet Shoppe building. Rogina,
however, had provided Gilbert's attorney in April 2003 with a
conceptual rendering of the proposed new facade for the Omelet
Shoppe building, a proposed floor plan, a memorandum from
O'Henry's explaining the work to the exterior of the building
that would need to be performed, and a copy of the letter of
intent between Rogina and O'Henry's. Rogina's attorney wrote
Gilbert's attorney on January 9, 2004, reminding him of the
information provided in April 2003 as well as providing a
letter from Randy Adamy, president of O'Henry's, regarding
anticipated traffic volume at the proposed coffee shop.
Gilbert never asked for any other information from Rogina
regarding O'Henry's, nor did he consent to the modifications
O'Henry's proposed. According to Tracy Messina, Rogina's
president, Gilbert was unwilling to consent to the structural
changes
O'Henry's
wanted
unless
Rogina
made
monetary
concessions, including an escalation in rent and an up-front
lump-sum payment of $50,000, neither of which were required
under the lease agreement.
1050161
8
On February 9, 2004, Rogina received a letter written on
behalf of O'Henry's and stating that O'Henry's had found
another suitable location for its new store and that if Rogina
was unable to resolve its issues with Gilbert within 30 days
O'Henry's would move its project to that location. Because
Rogina and Gilbert were unable to resolve their differences,
O'Henry's selected the other location for its new store.
On July 29, 2004, Rogina sued Gilbert, alleging breach of
contract
and
tortious
interference
with
a
business
relationship; Rogina also sought a judgment declaring that
under the lease agreement Rogina should not be required to
seek Gilbert's approval for structural alterations to the
Omelet Shoppe building and that the lease agreement is valid
and effective through February 28, 2043. Gilbert moved the
trial court for a partial summary judgment on the declaratory-
judgment aspect of Rogina's complaint, stating that the lease
agreement was void under § 35-4-6, Ala. Code 1975, because the
amendment to the lease agreement was not recorded with the
judge of probate's office within one year of its execution.
The trial court denied Gilbert's summary-judgment motion,
holding that
1050161
9
"the original lease was for a period of over twenty
years and was duly recorded in compliance with Ala.
Code [1975,] § 35-4-6. Furthermore, the amendment
to this lease did not serve to extinguish the
original lease that it modifies. Therefore, the
original lease as modified by and including the
amendment
thereto
is
valid
and
enforceable.
Defendant's Motion for Summary Judgment is hereby
OVERRULED. By so holding, the purpose of Ala. Code
[1975,] § 35-4-6 is not frustrated. This Court has
fully considered the other, subsequent, arguments
made by the parties, but because of this ruling
regarding Ala. Code [1975,] § 35-4-6 the Court
pretermits any discussion of those arguments at this
time."
(Capitalization in original.) Gilbert filed a motion to
alter, amend, or vacate the trial court's order denying his
summary-judgment motion, which the trial court denied.
Rogina, in turn, moved the trial court for a partial summary
judgment, asking the trial court to declare that the language
of the lease agreement did not obligate Rogina to obtain
Gilbert's consent to demolish or to make structural
alterations to the buildings on the leased premises until five
years before the extension options of the lease agreement
were to expire. The trial court granted Rogina's motion for
a partial summary judgment, declaring that Rogina did not have
to seek Gilbert's consent to demolish or to make structural
1050161
10
alterations to the buildings on the premises until March 1,
2038, five years before the lease agreement was to expire.
After conducting a bench trial on Rogina's claims of
breach of contract and tortious interference with a business
relationship, the trial court entered a judgment in favor of
Rogina on both claims and awarded Rogina actual damages of
$130,500.00, prejudgment interest of $8,236.66, and attorney
fees of $40,716.50. The trial court's final judgment also
provided:
"Further, in the event an appeal is filed and the
judgments of the Court are superseded and the
judgments of the Court are upheld on appeal, further
and additional compensatory damages WILL BE DEEMED
ENTERED, without further action or order from this
Court, in favor of [Rogina] against [Gilbert], in
the amount of Four Thousand, Five Hundred and no/100
Dollars ($4,500.00) per month for each month
following August[] 2005 through the conclusion of
said appeal but no later than April 1, 2008."
(Capitalization in original.) Gilbert filed a motion asking
the trial court to alter, amend, or vacate its order
pertaining to the accrual of damages while on appeal, which
the trial court denied. Gilbert appeals.
II. Standard of Review
The evidence in this case was presented to the trial
judge in a bench trial at which evidence was presented ore
1050161
11
tenus; thus the ore tenus standard of review is applicable.
As this Court has previously noted:
"'"When a judge in a nonjury case hears oral
testimony, a judgment based on findings of fact
based on that testimony will be presumed correct and
will not be disturbed on appeal except for a plain
and palpable error."' Smith v. Muchia, 854 So. 2d
85, 92 (Ala. 2003) (quoting Allstate Ins. Co. v.
Skelton, 675 So. 2d 377, 379 (Ala. 1996)); see also
First Nat'l Bank of Mobile v. Duckworth, 502 So. 2d
709 (Ala. 1987). As this Court has stated,
"'"The ore tenus rule is grounded upon the
principle that when the trial court hears
oral testimony it has an opportunity to
evaluate the demeanor and credibility of
witnesses." Hall v. Mazzone, 486 So. 2d
408, 410 (Ala. 1986). The rule applies to
"disputed issues of fact," whether the
dispute is based entirely upon oral
testimony or upon a combination of oral
testimony and documentary evidence. Born
v. Clark, 662 So. 2d 669, 672 (Ala. 1995).
The
ore
tenus
standard
of
review,
succinctly stated, is as follows:
"'"[W]here the evidence has been
[presented]
ore
tenus,
a
presumption
of
correctness
attends
the
trial
court's
conclusion on issues of fact, and
this Court will not disturb the
trial court's conclusion unless
it is clearly
erroneous
and
against the great weight of the
evidence, but will affirm the
judgment if, under any reasonable
aspect,
it
is
supported
by
credible evidence."'
1050161
12
"Reed v. Board of Trs. for Alabama State Univ., 778
So. 2d 791, 795 (Ala. 2000) (quoting Raidt v. Crane,
342 So. 2d 358, 360 (Ala.1977)). However, 'that
presumption [of correctness] has no application when
the trial court is shown to have improperly applied
the law to the facts.' Ex parte Board of Zoning
Adjustment of Mobile, 636 So. 2d 415, 417 (Ala.
1994)."
Robinson v. Evans, 959 So. 2d 634, 637 (Ala. 2006).
III. Analysis
On appeal, Gilbert raises five issues: (1) whether the
failure by Rogina and its predecessor in interest to record
the amendment to the lease agreement in the office of the
probate judge within one year of its execution voided the
lease agreement after 20 years; (2) whether the trial court
erred to reversal by failing to disqualify the law firm
representing Rogina because the possibility existed for an
attorney in that firm to be a witness at trial; (3) whether
Gilbert was in breach of the lease agreement; (4) whether the
trial
court
committed
reversible
error
by
awarding
the accrual
of monthly attorney fees while this action is pending on
appeal; and (5) whether the trial court's verdict was against
the great weight of the evidence.
A. Filing Requirement of § 35-4-6, Ala. Code 1975
Section 35-4-6, Ala. Code 1975, provides:
1050161
This Court has previously enunciated the doctrine of
2
merger in a real-estate transaction as follow: "[A]bsent fraud
or mistake, when a contract to sell or convey land is
consummated by execution and delivery of a deed, that contract
becomes 'functus officio' and the deed becomes the sole
memorial of the parties' agreement." Swanson v. Green, 572
So. 2d 1246, 1248 (Ala. 1990) (footnote omitted).
13
"No leasehold estate can be created for a longer
term than 99 years. Leases for more than 20 years
shall be void for the excess over said period unless
the lease or a memorandum thereof is acknowledged or
approved as required by law in conveyances of real
estate and recorded within one year after execution
in the office of the judge of probate in the county
in which the property leased is situated."
Gilbert argues that, under the doctrine of merger, the
2
amended lease agreement is "the one and only lease" and thus
is void because the amendment was not recorded in the
Jefferson County Probate Office until six and one-half years
after it was executed. In support of his argument, Gilbert
cites Ex parte Achenbach, 783 So. 2d 4 (Ala. 2000).
In Achenbach, the parties were the successor lessors and
successor lessee to a ground lease of certain property in
Madison County. The original term of the ground lease was for
24 years and 9 months, and the ground lease included
irrevocable renewal rights for successive 5-year periods, up
to an aggregate of 99 years. It was undisputed that the lease
1050161
14
was never recorded in the Madison County Probate Office. This
Court, in reversing the judgment of the Court of Civil
Appeals, held that according to the plain meaning of § 35-4-
6, Ala. Code 1975, "a lease that is made for more than 20
years and that is not properly recorded, is void for any
portion of that lease period that exceeds 20 years," 783 So.
2d at 7, and that "a party cannot be estopped from asserting
that a lease is void under [§ 35-4-6]." 783 So. 2d at 8.
Rogina, however, argues that the original lease agreement
and the amendment to the lease agreement must be construed as
a whole as one lease and that novation of the lease agreement
did not occur upon the execution of the amendment. In support
of its argument, Rogina cites Byrd Cos. v. Birmingham Trust
National Bank, 482 So. 2d 247 (Ala. 1985). In Byrd, the
parties entered into a lease agreement on August 1, 1963; the
term of the lease was 18 years with an option to renew for an
additional 8 years but only if the lessee gave the lessor
notice of its desire to renew the lease at least 6 months
before the expiration date of the lease. The lease agreement
stated that "'the date of commencement to be evidenced, upon
its ascertainment, by the execution by the parties of an
1050161
15
agreement supplemental hereto setting forth such date.'" 482
So. 2d at 249. On August 31, 1964, the parties executed an
amendment to the lease agreement that provided that the lease
term would begin on September 1, 1964, and end on August 31,
1982. The lease agreement was recorded in the probate office
on September 1, 1964, and the amendment was recorded on
September 9, 1964. On August 5, 1965, the parties executed an
instrument entitled "Modification and Ratification of Lease,"
which stated that the August 1, 1963, lease agreement was
currently in full force and effect and that the lease
agreement was modified so as to provide that the commencement
date of the original term of the lease and amendment was April
9, 1965. On August 2, 1982, the lessee sent the lessor a
letter stating that it was exercising its option to renew the
lease and extend it for eight years; the lessor, however,
claimed that the term of the lease was never changed from the
August 31, 1964, amendment to the lease agreement.
This Court held that all three documents –- the lease
agreement, the amended lease agreement, and the modification
and ratification of the lease –- constituted the lease, and,
taken as a whole, there was no ambiguity and nothing for this
1050161
16
Court to construe. Thus, the Court concluded, the term of the
lease was for 18 years from April 9, 1965. The lessee,
therefore, had given notice of its intent to exercise its
option to renew at least six months before the expiration of
the initial lease term.
The lessor also argued that the lessee failed to record
the lease within one year as prescribed in § 35-4-6 because
the lease agreement was recorded 13 months after it was
executed. This Court, however, disagreed, holding that the
lessee's interesse termini ripened into a leasehold estate of
a term for years on September 1, 1964, when the lease
commenced. Thus, the lease was recorded only eight days after
the
leasehold
relationship
began
and
well
within
the
statutory
time frame for recording the lease.
Rogina is correct that the amendment to the lease
agreement relates back to the lease agreement executed on
January 24, 1978. The amendment specifically refers to the
January 1978 lease agreement as the "base lease" and states
that "the parties hereto have agreed to modify the base lease
in connection with the rent to be paid thereunder in Paragraph
5 and the termination provisions in Paragraph 5(f), all as
1050161
17
hereinafter set forth." As this Court noted in Byrd: "'If
instruments
taken
together
constitute but
one lease, they must
be construed as a whole.'" 482 So. 2d at 251 n. 3 (quoting 3
J. Grimes, Thompson on Real Property § 1052 (repl. ed. 1980)).
The lease agreement and the amendment thereto constitute only
one lease; thus they must be construed as such.
Regarding statutory interpretation, it is well settled
that "[w]hen interpreting a statute, this Court will first
look to the plain meaning of the words as written by the
Legislature. If the plain meaning of the language is
unambiguous, then
there
is
no
room for
judicial
construction."
Ex parte Achenbach, 783 So. 2d at 7 (citations omitted).
Rogina argues that § 35-4-6 is unambiguous in requiring the
recording of only a "lease or a memorandum thereof";
therefore, it asserts, this Court cannot construe the statute
to require the recording of an amendment to a lease. We
agree. Further, interpreting § 35-4-6 to require the
recording of amendments to leases would run afoul of the law
in Alabama that an oral contract or an oral amendment to a
contract relating to real property can be enforced under the
part-performance exception to the Statute of Frauds or in
1050161
18
instances of fraud, see Darby v. Johnson, 477 So. 2d 322 (Ala.
1985), and that a lease may be modified by oral agreement.
See Southland of Alabama, Inc. v. Julius E. Marx, Inc., 341
So. 2d 127 (Ala. 1976). That being said, if a lease for a
term of less than 20 years is amended so as to give the lessee
an absolute and unconditional right to hold over for more than
20 years, then the lease and amendment or a memorandum thereof
must be recorded with the probate judge. See Tennessee Coal,
I. & R. R. v. Pratt Consol. Coal Co., 156 Ala. 446, 47 So. 2d
337 (1908); but cf. Harco Drug Co. v. Notsla, Inc., 382 So. 2d
1, 3 (Ala. 1980).
Because Rogina met the requirements of § 35-4-6 by filing
the lease with the Jefferson County Probate Office within one
year of its execution, the lease is valid for its entire term,
including the eight optional extensions of five years each.
Because we conclude that Rogina did not violate the
requirements of § 35-4-6, we pretermit consideration of
Rogina's arguments regarding judicial estoppel and res
judicata.
B. Trial Court's Refusal to Disqualify Rogina's Counsel and
Their Law Firm
1050161
19
Gilbert argues that the trial court committed reversible
error by denying Gilbert's motion to disqualify Rogina's
attorney, Chervis Isom, as well as Isom's firm, Baker,
Donelson,
Bearman,
Caldwell
&
Berkowitz,
P.C.,
from
representing Rogina because of statements made by Isom in a
letter and because of the possibility that he might be called
as a witness at trial. In his brief, Gilbert states: "It is
apparent from the above two quotes that the letter of Mr. Isom
contains material which is adverse to his client's interest."
(Gilbert's brief, p. 17.) Although it is not exactly clear to
which passages Gilbert is referring, it appears to be the
following two quotes found in a section of his brief
addressing another argument:
"The ground lease does not require Mr. Gilbert
to provide a non-disturbance agreement to Rogina's
subtenants. As a practical matter, this transaction
cannot go forward unless O'Henry's can obtain a non-
disturbance agreement from Mr. Gilbert.
"....
"Hence the net return to Rogina will be $1500.00
per month."
Besides stating that Isom made statements adverse to his
client's interests, Gilbert in his brief quotes Rule 3.7, Ala.
R. Prof. Cond., "Lawyer as Witness," and cites Harkins & Co.
1050161
The Alabama Rules of Professional Conduct replaced the
3
Alabama
Code
of
Professional
Responsibility,
effective
January
1, 1991. Rule 3.7, Ala. R. Prof. Cond., covers the subject
formerly covered by DR 5-102.
20
v. Lewis, 535 So. 2d 104 (Ala. 1988), which construes DR 5-
102, Alabama Code of Professional Responsibility, and
3
LeaseAmerica Corp. v. Stewart, 19 Kan. App. 2d 740, 876 P.2d
184 (1994), which expounds upon Kansas's versions of Rule 3.7
and DR 5-102. Gilbert's claim regarding Isom, however, is not
cognizable because we are unable to discern how Isom's words
are "adverse" to his client.
In his motion before the trial court seeking to
disqualify Isom, Gilbert appears to argue that the language he
quoted Isom's letter is contradictory to Rogina's claim in its
complaint that Gilbert breached the lease agreement with
Rogina by unreasonably withholding consent to the proposed
modifications to the subject property. However, as Rogina
noted both in its response to Gilbert's motion and in its
brief before this Court, it never contended before the trial
court that Gilbert breached the lease agreement by refusing to
provide
a
nondisturbance
agreement.
As
Rogina
notes,
evidence
in the record indicates that O'Henry's was willing to continue
1050161
We further note that we find no substantiation of
4
Gilbert's argument that Isom's law firm should also have been
disqualified from representing Rogina. Although DR 5-102 may
have contemplated the recusal of an entire firm in an instance
such as Gilbert alleged in his motion, no such requirement is
found in Rule 3.7, Ala. R. Prof. Cond. Instead, Rule 3.7
provides that a lawyer may act as an advocate in a trial in
which another lawyer from his firm may be a witness except
where such representation would be adverse to a current or
former client of that lawyer.
21
with the transaction without a nondisturbance agreement.
Instead, Rogina argued that Gilbert breached the lease
agreement
by
unreasonably
withholding
consent
for
O'Henry's
to
make the desired alterations to the structure that formerly
housed the Omelet Shoppe.
In reviewing the ruling on Gilbert's motion to disqualify
Isom, we are unable to find any argument as to how Isom's
reference to a monthly net return of $1,500 was adverse to his
client's interests. Considering the foregoing, we conclude
that the trial court properly denied Gilbert's motion to
disqualify Isom.4
C. Gilbert's Remaining Arguments
As to Gilbert's remaining arguments, he fails to cite a
single authority in support of those arguments. Further, he
argues for the first time in his reply brief that this Court
1050161
22
should overrule its holding in Tedescki v. Rogina Investment
Corp., supra, and that Rogina had a duty to mitigate its
damages. This Court will not consider those arguments.
"'The law of Alabama provides that where no legal
authority is cited or argued, the effect is the same
as if no argument had been made.' Bennett v.
Bennett, 506 So. 2d 1021, 1023 (Ala. Civ. App.
1987) (emphasis added). '[A]n argument may not be
raised, nor may an argument be supported by
citations to authority, for the first time in an
appellant's reply brief.' Improved Benevolent &
Protective Order of Elks v. Moss, 855 So. 2d 1107,
1111 (Ala. Civ. App. 2003), abrogated on other
grounds, Ex parte Full Circle Distribution, L.L.C.,
883 So. 2d 638 (Ala. 2003). Where an appellant
first cites authority for an argument in his reply
brief, it is as if the argument was first raised in
that reply brief, and it will not be considered."
Steele v. Rosenfeld, LLC, 936 So. 2d 488, 493 (Ala. 2005).
IV. Conclusion
The trial court correctly applied the law in holding that
lease was not void by operation of law after 20 years and it
did not err in denying Gilbert's motion to disqualify Rogina's
attorney. We therefore affirm the judgment.
AFFIRMED.
See, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Lyons and Murdock, JJ., concur in the result.
1050161
It just happened in this case that the lessee had
5
purportedly exercised several of its lease extensions at once,
thereby adding an additional block of greater than five years
to the end of the initial term of the lease and allowing the
trial court's interpretation room for operation that it
otherwise would not have had. I also note that there is
language elsewhere in the lease agreement that arguably
contemplates the exercise of extensions, one at a time, at the
end of the primary term and of each successive extension term
of the lease agreement.
23
MURDOCK, Justice (concurring in the result).
I disagree with the trial court's judgment in this case
in the following respects:
1. A provision of the lease agreement states that
demolition or structural alterations require the written
consent of the lessor "[d]uring the last five (5) years
of the primary term hereof and any extension hereof."
(Emphasis added.) As I read it, the plain meaning of this
language is that the lessor's consent is required both
during the last 5 years of the initial, 25-year term of
the lease agreement and during any and all extensions of
that term -- not just during the last 5 years of a period
consisting of multiple extensions. Moreover, the quoted
5
passage from the lease agreement must be read in pari
materia with the earlier provision of the lease agreement
1050161
24
stating that "Lessees, without the written consent of the
Lessors ..., shall, during the first twenty (20) years of
the primary term of this lease, have the right to tear
down or materially demolish any improvements made by the
Lessees on the leased property, or make any ...
alterations in such improvements." (Emphasis added.)
2. If, however, as the trial court held, the lease
agreement did not require the consent of the lessor
during the period in question, how could the lessor be
contractually liable for failing to give that consent?
Likewise, if the lessor's consent was not required by the
lease agreement, how could the failure to give that
consent provide the basis for a claim of interference
with a contractual relationship?
3. I question the authority of the trial court to
structure a monthly additur to its damages award in the
event of an appeal.
Because the concerns expressed in paragraphs 2 and 3 are
not argued to this Court with citations to legal authority, I
concur in the result. | April 4, 2008 |
fc0581df-a32a-4d18-b529-e7c520ca0dd3 | Patricia Working et al. v. Jefferson County Election Commission et al. | N/A | 1070850 | Alabama | Alabama Supreme Court | REL: 06/30/08
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, 2007-2008
____________________
1070850
____________________
Patricia Working et al.
v.
Jefferson County Election Commission et al.
____________________
1070893
____________________
Governor Bob Riley, in his official capacity
v.
Jefferson County Election Commission et al.
____________________
1070917
1070850, 1070893, 1070917
2
____________________
George F. Bowman
v.
State of Alabama ex rel. Fred L. Plump and William A. Bell,
Sr.
Appeals from Jefferson Circuit Court
(CV-08-900316)
PER CURIAM.
These appeals arise from challenges to the attempts to
fill the district 1 seat on the Jefferson County Commission
left vacant when Commissioner Larry Langford was elected mayor
of the City of Birmingham in October 2007. The trial court
held that the vacant seat was to be filled by a special
election rather than by gubernatorial appointment. For the
reasons stated herein, we reverse the trial court's judgment.
I. Facts, Procedural Background, and Applicable Statutes
On October 9, 2007, Larry Langford, the member of the
Jefferson County Commission representing district 1, was
elected mayor of the City of Birmingham. He thereafter
resigned his seat on the Jefferson County Commission. On
October 29, 2007, the Jefferson County Election Commission,
1070850, 1070893, 1070917
The Alabama Legislature enacted Act No. 784 effective May
1
25, 1977, as a local law that purported to authorize a special
election to fill a vacancy on the Jefferson County Commission
caused by "death, resignation, impeachment, or any cause
except normal expiration of terms." § 1, Act No. 784.
Section 11-3-1(b) now provides:
2
"Unless a local law authorizes a special election,
any vacancy on the county commission shall be filled
by appointment by the Governor. If the appointment
occurs at least 30 days before the closing of party
qualifying as provided in Section 17-13-5, the
person appointed to the vacated office shall only
serve until seven days after the next general
election following the appointment as provided
herein. The person so appointed to fill the vacancy
shall meet the residency requirements in subsection
(a), and shall hold office from the date of
3
pursuant to Act No. 784, Ala. Acts 1977, adopted a resolution
1
calling for a special election to fill the seat vacated by
Langford. The resolution set the special election for
February 5, 2008 –- the date of Alabama's presidential-
preference primaries. Fred L. Plump, George F. Bowman, and
William A. Bell, Sr., were among those who qualified to run
for the district 1 seat on the county commission.
On November 21, 2007, Governor Bob Riley appointed George
F. Bowman to fill the vacant district 1 seat on the Jefferson
County Commission. The Governor's appointment was made
pursuant to a general law, § 11-3-1(b), Ala. Code 1975.2
1070850, 1070893, 1070917
appointment until the eighth day following the next
general election. If the original term in which the
vacancy occurred would not have expired on the
eighth day following the next general election after
the appointment, the person elected at the election
required by operation of this subsection shall serve
for a period of time equal to the remainder of the
term in which the vacancy was created. Thereafter,
election for the county commission seat shall be as
otherwise provided by law."
The emphasized language, however, was first included in this
statutory scheme effective in 2004. See Act No. 2004-455, Ala.
Acts 2004. The substance of the first sentence, without the
emphasized language, was part of the Alabama Code prior to the
enactment of Act No. 784 in 1977. Until September 1, 2007, it
was codified as § 11-3-6, Ala. Code 1975. Effective September
1, 2007, the entire provision, including the emphasized
language and additional language, was renumbered by Act No.
2007-488 as § 11-3-1(b).
4
On January 31, 2008, Patricia Working and Rick Erdemir
filed a complaint for declaratory relief in the Jefferson
Circuit Court, naming as defendants the Jefferson County
Election Commission and its individual members, namely
Jefferson County Probate Judge Alan King, Jefferson County
Sheriff Mike Hale, and Jefferson County Circuit Clerk Anne-
Marie Adams. Among other things, they alleged that they were
residents and taxpayers in Jefferson County and that the
special
election
was
unauthorized
and
unconstitutional
because, they said, Act No. 784, Ala. Acts 1977, violated §
1070850, 1070893, 1070917
Section 105 provides:
3
"No special, private, or local law, except a law
fixing the time of holding courts, shall be enacted
in any case which is provided for by a general law,
or when the relief sought can be given by any court
of this state; and the courts, and not the
legislature, shall judge as to whether the matter of
said law is provided for by a general law, and as to
whether the relief sought can be given by any court;
nor shall the legislature indirectly enact any such
special, private, or local law by the partial repeal
of a general law."
5
105 of the Alabama Constitution of 1901, and that, even if
3
Act No. 784 was not unconstitutional and authorized the
special election, the date set by the Election Commission for
the special election was incorrect. Accompanying the
complaint were an application for a temporary restraining
order and a motion for a preliminary injunction.
On February 1, 2008, the Jefferson Circuit Court
conducted an expedited hearing in which it noted the absence
of potentially interested parties and issued an order holding
that it would not have subject-matter jurisdiction until the
attorney general was served with a copy of the complaint
pursuant to Ala. Code 1975, § 6-6-227. It further stated that
the matter would be held under submission until the plaintiffs
had complied with § 6-6-227. Subsequent to the entry of that
1070850, 1070893, 1070917
Plump, a resident of district 1, is a plaintiff in a
4
federal action challenging Governor Riley's appointment of
Bowman to fill the district 1 vacancy on the Jefferson County
Commission; that action is based on § 5 of the Voting Rights
Act of 1963, 42 U.S.C. § 1973c (2000) and is presently pending
review by the United States Supreme Court.
6
order, the attorney general was served with a copy of the
complaint and filed an answer stating that he was entitled to
be heard on the issue of the constitutionality of Act No. 784,
and that because Act No. 784 is unconstitutional, the circuit
court should enjoin the Election Commission from canvassing
the votes and certifying the results of the special election.
In addition, on February 6, 2008, Plump filed a motion to
intervene as a defendant, which the court later granted.4
The special election was held on February 5, 2008. On
February 12, Floyd McGinnis filed a "Joinder of Verified
Complaint" and, with Working and Erdemir, amended the
complaint to add Bell as a defendant. McGinnis, Working, and
Erdemir (collectively referred to as "the Working plaintiffs")
each filed a verification in support of the amended complaint.
On February 13, 2008, the Working plaintiffs filed a
notice of appeal to this Court from the trial court's February
1, 2008, order and, specifically, its effective denial of a
temporary restraining order and a preliminary injunction by
1070850, 1070893, 1070917
7
holding the case "under submission." On February 14, 2008,
this Court granted an emergency motion filed by the Working
plaintiffs, enjoining the Election Commission from certifying
the results of the special election until further order of
this Court. On February 20, 2008, this Court issued an order
noting that it appeared the statutory notice requirements
pertaining to the attorney general had been met, remanding the
cause to the trial court for a ruling on the merits of the
Working plaintiffs' claims, and maintaining in place the
injunction prohibiting the certification of the results of the
February 5 special election pending further order of this
Court. (Case no. 1070693.)
On February 21, 2008, the defendants moved to dismiss the
action on the bases, among others, that the Working plaintiffs
lacked standing to pursue their claims because, as was
undisputed, Working and Erdemir did not actually reside in
district 1 of Jefferson County and McGinnis had not suffered
a sufficient, particularized injury. On February 27, 2008,
Plump filed an answer to the complaint and a third-party
complaint asserting a quo warranto action as a relator for the
State against Bowman. See Ala. Code 1975, § 6-6-597.
1070850, 1070893, 1070917
8
On February 28, 2008, Governor Riley filed a motion,
which was later granted, to intervene as a plaintiff. Also on
February 28, the Working plaintiffs filed a second amended
complaint, among other things, adding a claim that the
Election Commission was required by Act No. 2007-488 to hold
an election at the November 2008 general election to fill the
district 1 vacancy and that its refusal to do so was a
violation of plaintiff McGinnis's right to vote in such an
election.
On March 6, 2008, Bell filed, and on March 9, 2008, the
trial court granted, a motion to join and to amend Plump's
third-party quo warranto complaint against Bowman. The
amended third-party complaint alleged that Bell was entitled
to hold the office of County Commissioner for district 1 based
on the result of the special election and that Bowman was
unlawfully holding that office. Specifically, Bell and Plump
alleged:
"Governor Riley did not have the authority to
appoint George Bowman to the District 1 seat because
it is clear that a general state statute, Act 2007-
488 codified at § 11-3-1(b), that begins 'Unless a
local law authorizes a special election,' allows
local laws on the same subject to coexist without
violating § 105 of the Alabama Constitution.
1070850, 1070893, 1070917
9
Baldwin County v. Jenkins, 494 So. 2d 584 (Ala.
1986)."
After conducting a hearing, the trial court issued a
final judgment. In its judgment, the trial court held that
the Working plaintiffs lacked standing to pursue their claims.
As to the merits of the litigation, the trial court determined
that the local law on which the special election was based,
Act No. 784, Ala. Acts 1977, did not conflict with the general
law, § 11-3-1(b), and therefore did not violate § 105 of the
Alabama Constitution of 1901, because of the proviso at the
beginning of § 11-3-1(b) allowing local laws to authorize
special elections to fill vacancies on county commissions.
Finally, the trial court held that the Election Commission had
set the special election for the correct day.
Consistent with the foregoing determinations, the trial
court specifically ruled that Governor Riley's appointment of
Bowman to the district 1 seat for the Jefferson County
Commission was unauthorized and that, when the final results
of the election of February 5, 2008, are certified by the
Election Commission, the winner of the election will be
entitled to hold the office of Jefferson County commissioner
for district 1.
1070850, 1070893, 1070917
They also note that, as residents of Jefferson County,
5
they will be governed by the winner of the election in his
capacity as a member of the Jefferson County Commission. In
addition, McGinnis notes his status as a voter in district 1
and, further, seeks the right to participate in the election
of a county commissioner that, he asserts, should be scheduled
for November 2008 in keeping with § 11-3-1(b), Ala. Code 1975.
10
The Working plaintiffs, the Governor, and Bowman each
appeal.
II. Subject-Matter Jurisdiction
We are presented with two issues pertaining to subject-
matter jurisdiction. These include the standing of the
Working plaintiffs to pursue their claims and the potential
effect of § 17-16-44, Ala. Code 1975.
A. The Standing of the Working Plaintiffs
In the trial court, the Working plaintiffs asserted that
they have standing to bring their claims in this case based on
their status as residents and taxpayers of Jefferson County
whose taxes go to the general fund of the County. They
5
alleged that their status in this regard gives them standing
to challenge the expenditure of moneys from the general fund
for conducting an election not authorized by law.
In their February 21 motion to dismiss, the Election
Commission and Sheriff Hale argued to the trial court that the
1070850, 1070893, 1070917
In their motion to dismiss, the Election Commission and
6
Sheriff Hale also argued, and the trial court subsequently
found, that because plaintiffs Working and Erdemir did not
have standing, the court lacked subject-matter jurisdiction
over the case as originally filed, and therefore the amendment
by which McGinnis joined the action as a plaintiff "cannot
relate back to the filing of the original complaint, because
there is nothing 'back' to which to relate." Because of our
disposition of the issue of the Working plaintiffs' standing
as taxpayers, we need not address the issue whether McGinnis's
joinder of the complaint related back to the date of the
filing of the original complaint or, if it did not, whether
the
trial
court
nonetheless
acquired
subject-matter
jurisdiction over McGinnis's claims as of the date they were
filed.
11
Working plaintiffs did not have standing to pursue their
claims because (1) Working and Erdemir were not residents or
voters of district 1 and (2) McGinnis, although a district 1
voter, had "not stated or shown with particularity the injury
in fact necessary to grant him standing to challenge the
constitutionality of 1977 Ala. Act No. 784." The motion to
6
dismiss did not specifically address the Working plaintiffs'
status as taxpayers of Jefferson County or whether that status
contributed to their standing to obtain the relief they
sought.
In proposed conclusions of law submitted to the trial
court in preparation for the final hearing and in arguments
presented at that hearing, the Working plaintiffs reasserted
1070850, 1070893, 1070917
12
their position that their status, particularly as taxpayers,
gave them standing to pursue their claims. As noted, however,
in its final judgment, the trial court ruled against the
Working plaintiffs on the issue of standing. Specifically, it
held that because neither Working nor Erdemir were residents
of district 1 they did not suffer a legal injury as a result
of the special election. Among other things, it agreed with
the Election Commission and Sheriff Hale that McGinnis lacked
standing
because
he
"had
not
stated
or
shown
with
particularity [an] injury in fact." The trial court did not
directly address the issue of taxpayer standing.
On appeal, the Working plaintiffs again assert their
status as residents and taxpayers of Jefferson County and
again contend that that status gives them standing to pursue
this case. In response, the Election Commission and Sheriff
Hale urge this Court to uphold the trial court's ruling as to
standing on the same grounds cited in the trial court's
opinion; they make no substantive argument as to the issue of
taxpayer standing.
We note at the outset of our analysis that the fact that
neither the defendants nor the trial court has directly
1070850, 1070893, 1070917
13
addressed the Working plaintiffs' argument as to the issue of
taxpayer standing does not provide us with a reason to
conclude, by default, that such standing exists. Standing is
a component of a court's subject-matter jurisdiction and, as
such, is not subject to waiver. See Waite v. Waite, 959 So.
2d 610, 613 (Ala. 2006); RLI Ins. Co. v. MLK Ave. Redev.
Corp., 925 So. 2d 914, 918 (Ala. 2005). See also United
States v. Hays, 515 U.S. 737, 742 (1995).
Whether a party has standing "turns on 'whether the party
has been injured in fact and whether the injury is to a
legally protected right'" so as "'to ensure that he will
vigorously present his case.'" State v. Property at 2018
Rainbow Drive, 740 So. 2d 1025, 1027-28 (Ala. 1999). This
Court has said that a party has standing where, among other
things, there is "an actual, concrete and particularized
'injury in fact' -- 'an invasion of a legally protected
interest.'" Alabama Alcoholic Beverage Control Bd. v. Henri-
Duval Winery, LLC, 890 So. 2d 70, 74 (Ala. 2003) (relied upon
in Town of Cedar Bluff v. Citizens Caring for Children, 904
So. 2d 1253 (Ala. 2004)). We conclude that the Working
plaintiffs had standing to bring their claims.
1070850, 1070893, 1070917
14
"In a long line of decisions this Court has recognized the
right of a taxpayer to challenge, either as unconstitutional
or as not conforming to statute, the expenditure of public
funds by county officers." Zeigler v. Baker, 344 So. 2d 761,
763 (Ala. 1977) (quoted with approval in Henson v. HealthSouth
Med. Ctr., 891 So. 2d 863, 866 (Ala. 2004)). See also
Alabama State Florists Ass'n, Inc. v. Lee County Hosp. Bd.,
479 So. 2d 720, 722 (Ala. 1985); Court of County Revenues for
Lawrence County v. Richardson, 252 Ala. 403, 412, 41 So. 2d
749, 754 (1949); Reynolds v. Collier, 204 Ala. 38, 39, 85 So.
465, 466 (1920). In Broxton v. Siegelman, 861 So. 2d 376
(Ala. 2003), this Court stated:
"[T]he right of a taxpayer to sue '"'is based upon
the taxpayer's equitable ownership of such funds and
their liability to replenish the public treasury for
the
deficiency
which
would
be
caused
by
the
misappropriation.'"' Hunt v. Windom, 604 So. 2d
[395] at 396-97 [(Ala. 1992)] (quoting Zeigler v.
Baker, 344 So. 2d 761, 763 (Ala. 1977), quoting in
turn, Fergus v. Russel, 270 Ill. 304, 314, 110 N.E.
130, 135 (1915))."
861 So. 2d at 385 (emphasis omitted).
The standing of taxpayers to challenge the expenditure of
public funds extends to funds expended for holding elections
not authorized by law. In City of Mobile v. Mobile Electric
1070850, 1070893, 1070917
The common-law "demurrer" has been succeeded by a motion
7
filed pursuant to Rule 12(b)(6) seeking dismissal of a
complaint on the ground that it fails to state a claim upon
which relief may be granted. See Roberts v. Meeks, 397 So. 2d
111, 114 (Ala. 1981).
15
Co., 203 Ala. 574, 578, 84 So. 816, 819 (1919), the Supreme
Court held that an election to adopt or reject a municipal
ordinance would be improper and that "the complainant, as a
taxpayer, had the right to enjoin the same." See also Dennis
v. Prather, 212 Ala. 449, 103 So. 59 (1925) (citing City of
Mobile with approval). We also take note of the result in
Petree v. McMurray, 210 Ala. 639, 98 So. 782 (1923), a case in
which
an
appointed
county
superintendent
of
education
challenged an election that was to be held pursuant to a local
law that he contended was in violation of Ala. Const. 1901, §
175. The Court affirmed the trial court's order overruling a
demurrer to the complaint, which contained the following
7
allegations:
"[N]otwithstanding the invalidity of said act,
respondents, acting as an election commission, [were]
threatening to and [were] about to advertise and call
a special election, to appoint inspectors, clerks,
etc., in the various voting precincts, and to
purchase election supplies, all of which [was]
without warrant of law, and it [was] alleged that the
pay vouchers for the proposed election officers and
the purchase of supplies [would] constitute illegal
1070850, 1070893, 1070917
16
claims and expenses against the county, to the
detriment of [the plaintiff] as a taxpayer; and that
the holding of said election [would] tend to
interfere with the proper discharge of the duties of
his office."
210 Ala. at 640, 98 So. at 782.
Other jurisdictions also hold that a taxpayer has standing
to challenge an election paid for with tax funds. For
example, in Bulgo v. Maui County, 50 Haw. 51, 430 P.2d 321
(1967), a taxpayer challenged the holding of an election that
was based on a newly enacted law providing for a special
election to fill the term of a county chairman-elect who dies
before assuming office. Describing the taxpayer's contention
with regard to his standing to challenge the election, the
Supreme Court of Hawaii wrote:
"Plaintiff bases his standing to sue on the fact
that he pays real property tax to the county of Maui,
which tax goes into the county general fund out of
which the expenses of the special elections are
payable. He claims the requested relief on the
ground that the challenged provision is a special
law, violative of Article VII, Section 1, of the
State constitution, and, unless restrained by the
court, defendant will irreparably damage plaintiff by
illegally expending funds raised by taxation in
holding
elections
under
an
invalid
statutory
provision."
1070850, 1070893, 1070917
Our view of the standing issue in the present case finds
8
further support in the fact that § 105 affirmatively directs
the judicial branch to decide disputes under that provision:
"[T]he courts, and not the legislature, shall judge as to
17
Bulgo, 50 Haw. at 54, 430 P.2d at 324. The Court held that
this was sufficient to confer standing on the plaintiff to
pursue his challenge of the election:
"We hold that plaintiff has a standing to sue in
this case. We base this holding on Castle v.
Secretary of the Territory, 16 Haw. 769 [(1905)].
Although
defendant
urges
that
Castle,
as
a
controlling authority on the point at issue, has been
eroded by Wilson v. Stainback, 39 Haw. 67 [(1951)];
Munoz v. Commissioner of Public Lands, 40 Haw. 675
[(1951)]; Air Terminal Services v. Matsuda, 47 Haw.
499, 393 P.2d 60 [(1964)]; and Helela v. State, 49
Haw. 365, 418 P.2d 482 [(1966)], and should be
overruled, we see no reason for doing so. Plaintiff
has alleged sufficient personal interest in the
controversy to entitle him to a day in court."
50 Haw. at 55, 430 P.2d at 324. See also, e.g., Board of
Supervisors of Elections of Anne Arundel County v. Smallwood,
327 Md. 220, 233 n.7, 608 A.2d 1222, 1228 n.7 (1992)
("[I]ndividual taxpayers in each county also contested the
proposed amendments' validity. Individual taxpayers have
standing to sue for an injunction against submitting a
proposal to the electorate; otherwise, they would be 'put to
wrongful expense for the publication of the referendum and the
printing of it on the ballots of the next general election.'"8
1070850, 1070893, 1070917
whether the matter of said law is provided for by a general
law, and as to whether the relief sought can be given by any
court ...." The doctrine of standing is rooted in concerns
that courts not exceed their proper scope of authority by
intruding into matters more properly decided by another branch
of government or by citizens as part of the political process.
"The power of the judiciary ... is 'the power to [decide] ...
a particular case or controversy.'" City of Daphne v. City of
Spanish Fort, 853 So. 2d 933, 942 (Ala. 2003) (quoting Ex
parte Jenkins, 723 So. 2d 649, 656 (Ala. 1998)) (emphasis
added). In Allen v. Wright, 468 U.S. 737 (1984), the United
States Supreme Court explained that "the several doctrines
that have grown up to elaborate" the "case or controversy"
requirement, including that of standing,
"are 'founded in concern about the proper -- and
properly limited -- role of the courts in a
democratic society' Warth v. Seldin, 422 U.S. 490,
498 ... (1975).
"'All of the doctrines that cluster
about Article III -- not only standing but
mootness,
ripeness,
political
question,
and
the like -- relate in part, and in
different though overlapping ways, to an
idea, which is more than an intuition but
less than a rigorous and explicit theory,
about the constitutional and prudential
limits to the powers of an unelected,
unrepresentative judiciary in our kind of
government.' Vander Jagt v. O'Neill, 226
U.S. App. D.C. 14, 26-27, 699 F.2d 1166,
1178-1179 (1983) (Bork, J., concurring)."
468 U.S. at 750. The Supreme Court further explained that the
standing
inquiry
turns
on
whether
"adjudication
is
'consistent with a system of separated powers and [the dispute
is one] traditionally thought to be capable of resolution
through the judicial process,' Flast v. Cohen, 392 U.S. 83, 97
... (1968)." 468 U.S. at 752. The concerns expressed in
Flast v. Cohen as to whether a court's resolution of a dispute
18
1070850, 1070893, 1070917
would be "consistent with a system of separated powers" and
whether "the dispute is one traditionally thought to be
capable of resolution through the judicial process" are
ameliorated in this case by the constitutional directive in §
105 for courts to decide disputes arising under that
provision.
At least in regard to the payment of election expenses,
9
the legislature has indicated that a presidential-preference
primary is to be treated as if it were an election in which
"candidates for federal or state offices are nominated or
federal or state offices are elected." See § 17-13-100(d)
(providing that the State of Alabama's obligation to reimburse
a county for sums expended in holding and conducting a
presidential-preference primary shall be "as provided in
Section 17-16-4").
19
In the present case, it is clear that Jefferson County
incurred costs in holding the special election for the
district 1 county commission seat that it otherwise would not
have incurred in administering the presidential-preference
primary election on February 5, 2008. Section 17-16-4, Ala.
Code 1975, provides that "[t]he State of Alabama shall
reimburse a county for all sums expended by the county in
payment of expenses incurred in holding and conducting an
election in which only candidates for federal or state offices
are nominated or federal or state officials are elected."9
(Emphasis added.) Section 17-16-2 defines, but also limits,
the "expenses" for which the State must reimburse counties:
1070850, 1070893, 1070917
20
"As used in this chapter, the term 'expenses'
shall include the following items, and no other:
"(1) The per diem and mileage provided
by law for election officials.
"(2) The per diem provided by law for
the clerk or other official acting in his
or her stead for handling absentee ballots.
"(3) The costs of ballots, supplies,
and other materials required by law to be
furnished
to
election
officials
and
certified by the judge of probate as chief
election official of the county. In those
counties where electronic voting machines
are used, such voting equipment shall not
be considered as ballots, supplies, or
materials, as herein used.
"(4) The costs of absentee ballots,
supplies, and other materials required by
law
to
be
furnished
to
the
official
handling absentee ballots.
"(5)
The
cost
of
preparing
and
furnishing the lists of qualified electors
to the election officials as required by
law."
Ala. Code 1975, § 17-16-2.
Even as to the specific "expenses" listed in § 17-16-2,
however, § 17-16-4 does not obligate the State to reimburse a
county for "all sums" expended by the county if the election
is one in which candidates or officials for other than federal
or state offices are to be nominated or elected. As to an
1070850, 1070893, 1070917
Section 17-16-3 begins with the caveat "[e]xcept as
10
provided in Section 17-8-12." Section 17-8-12, entitled
"Compensation of election officials," provides:
"(a) The inspector and clerks shall each be
entitled to base compensation of fifty dollars
($50). The compensation of the election officials
shall be paid as preferred claims, out of moneys in
the county treasury not appropriated, on proper
proof of service rendered. In all counties in which
the compensation of election officials is prescribed
by local law or general law of local application at
an amount in excess of the amount prescribed, the
compensation of the election officials shall not be
decreased
under
this
section
and
the
county
commission
may
increase
the
compensation
so
prescribed. In those counties in which compensation
of election officials is set at an amount in excess
of five dollars ($5) per day, but less than fifty
dollars ($50) per day, the provision of the local
law or general law of local application relative
thereto
is
superseded
and
the
compensation
prescribed herein shall be the total compensation of
election officials in the counties.
"(b) In addition to the compensation provided in
subsection (a), each clerk shall be entitled to
supplemental compensation paid by the state to
ensure that the total compensation paid to each
shall be in an amount of at least seventy-five
21
election "in which candidates for both federal or state and
county offices" are nominated or elected, § 17-16-3 governs.
It provides that the State of Alabama is required to reimburse
the county only "for one half of all sums expended by the
county in payment of expenses incurred in holding and
conducting" the election. Ala. Code 1975, § 17-16-3.10
1070850, 1070893, 1070917
dollars ($75) per day, and each inspector shall be
entitled to supplemental compensation paid by the
state in an amount that ensures that the total
compensation of an inspector is at least one hundred
dollars ($100) per day. Upon completion of a local
election school or being certified as a qualified
poll worker by the probate judge, or both, each
clerk and inspector shall be entitled to receive an
additional twenty-five dollars ($25) per day in
compensation from the state. The increase provided
for in this subsection shall not increase or
decrease any salary supplement paid under a local
law which is in effect on October 1, 2005. The
provisions of this subsection shall only apply to
those statewide elections for which county expenses
are reimbursed by the state as defined in Chapter
16. The provisions of this subsection shall not
apply to special county or other elections held at
any time other than at the time of holding statewide
elections."
(Emphasis added.)
22
Finally, we note that, consistent with all of the above-
discussed statutory provisions from Chapter 16, the parties
stipulated as follows to the trial court:
"46. Jefferson County's General Fund is used to
pay persons to administer elections at the direction
of
the
Jefferson
County
Election
Commission,
including
the
February
5,
2008,
presidential
preference primary election. As a result of the
Election
Commission's
resolving
to
conduct
an
election,
monies
appropriated
from
Jefferson
County's
General Fund pay for the printing of ballots used
during the February 5, 2008, presidential preference
primary election."
1070850, 1070893, 1070917
23
As previously noted, this Court has stated that standing
"turns on 'whether the party has been injured in fact and
whether the injury is to a legally protected right.'" State
v. Property at 2018 Rainbow Drive, 740 So. 2d at 1027. On the
basis of the foregoing, we conclude that the Working
plaintiffs had standing to bring their claims.
B. The Effect of § 17-16-44
Although the trial court did not address the issue, Plump
argues on appeal that the trial court lacked subject-matter
jurisdiction over all but his and Bell's third-party quo
warranto action against Bowman on the basis of Ala. Code 1975,
§ 17-16-44. That statute provides:
"No jurisdiction exists in or shall be exercised
by any judge or court to entertain any proceeding for
ascertaining the legality, conduct, or results of any
election, except so far as authority to do so shall
be specially and specifically enumerated and set down
by statute; and any injunction, process, or order
from any judge or court, whereby the results of any
election are sought to be inquired into, questioned,
or affected, or whereby any certificate of election
is sought to be inquired into or questioned, save as
may be specially and specifically enumerated and set
down by statute, shall be null and void and shall not
be enforced by any officer or obeyed by any person.
If any judge or other officer hereafter undertakes to
fine or in any wise deal with any person for
disobeying any such prohibited injunction, process,
or order, such attempt shall be null and void, and an
appeal shall lie forthwith therefrom to the Supreme
1070850, 1070893, 1070917
24
Court then sitting, or next to sit, without bond, and
such proceedings shall be suspended by force of such
appeal; and the notice to be given of such appeal
shall be 14 days."
We disagree.
We begin by noting that § 17-16-40 prescribes grounds for
an election contest that go to the manner in which the
election was conducted and the eligibility of a candidate to
hold the office at issue, and, in those respects, whether the
particular outcome of the election was lawful or correct.
Those grounds are as follows:
"(1) Malconduct, fraud, or corruption on the part of
any
inspector,
clerk,
returning
officer,
canvassing
board,
or other person.
"(2) When the person whose election to office is
contested was not eligible thereto at the time of
such election.
"(3) On account of illegal votes.
"(4) On account of the rejection of legal votes.
"(5) Offers to bribe, bribery, intimidation, or
other malconduct calculated to prevent a fair, free,
and full exercise of the elective franchise.
"(6) The results of a recount conducted under
Section 17-16-20 name as a winner a person other than
the person initially certified."
§ 17-16-40, Ala. Code 1975.
1070850, 1070893, 1070917
25
The present challenge to the February 5 election does not
fall within the scope of an election-contest statute as
suggested by the grounds of contest outlined in § 17-16-40.
This conclusion comports with even more fundamental principles
regarding the jurisdiction of our circuit courts as courts of
general jurisdiction and of equity. In King v. Campbell, [Ms.
1060804, Nov. 30, 2007] ___ So. 2d ___ (Ala. 2007), this Court
relied upon those fundamental principles to explain the
jurisdiction of our circuit courts in relation to election
challenges:
"Article VI, § 142(b), Ala. Const. 1901 (Off.
Recomp.), provides:
"'(b) The circuit court shall exercise
general jurisdiction in all cases except as
may otherwise be provided by law. The
circuit court may be authorized by law to
review decisions of state administrative
agencies and decisions of inferior courts.
It shall have authority to issue such writs
as may be necessary or appropriate to
effectuate its powers, and shall have such
other powers as may be provided by law.'
".... The legislature has restricted the jurisdiction of
the circuit courts by enacting § 17-16-44. ... In Dennis
v. Prather, 212 Ala. 449, 103 So. 59 (1925), this Court
construed a predecessor statute to § 17-16-44. This Court
noted:
"'The general rule without question is that
courts of equity will not interfere by
1070850, 1070893, 1070917
26
injunction with the holding of elections
political
in
character,
nor
take
jurisdiction
of
a
contest
after
the
election is held. But this court is
committed to the proposition that equity
will interfere by injunction to restrain
elections not authorized by law. It will
also restrain the usurpation of office, or
the assumption of functions of office where
no lawful office exists.'
"212 Ala. at 452, 103 So. at 61-62 (emphasis added).
Speaking to the predecessor to § 17-16-44, the Dennis
Court stated:
"'Statutes restricting the jurisdiction of
courts of equity, as defined at common law,
and reiterated by statute in Alabama,
should be strictly construed. Construing
this statute as a whole, it appears,
broadly speaking, to cover cases inquiring
into the validity of elections theretofore
held--a proceeding in the nature of a
contest
of
an
election,
whether
the
legality,
conduct
or
results
of
the
election be the point of attack. We doubt
if it would include a case of injunction
against
the
exercise
of
any
form
of
official power, derived through or by
virtue of an election not authorized by law
and therefore wholly void. The equity
jurisdiction in such case does not rest so
much upon matters going to the conduct of
the election, but upon the usurpation or
abuse of official power under color of a
void election.'
"212 Ala. at 452-53, 103 So. at 62 (emphasis added)."
___ So. 2d at ___ (some emphasis omitted). Thus, we concluded
in King, "litigation challenging the consequences of a void
1070850, 1070893, 1070917
27
election does not come within the sweep of the limitation on
subject-matter jurisdiction in § 17-16-44." __ So. 2d at __.
This principle controls in the present case. The Working
plaintiffs, the Governor and Bowman make no challenge to the
manner in which the February 5 special election was conducted
or the particular results of that election; the challenge here
is to the very holding of the election. It is a challenge to
the election as one "not authorized by law and therefore
wholly void." The jurisdictional limitations imposed by § 17-
16-44 therefore are not applicable.
III. The Validity of the February 5 Special Election
We turn now to the substantive question presented, the
validity of the February 5 special election. Two issues are
presented by the parties for our consideration: (1) whether
Act No. 784, Ala. Acts 1977, upon which the election was
based, is unconstitutional in light of the prohibition of
certain
local
laws
imposed
by
§
105
of
the
Alabama
Constitution of 1901, and (2) whether Act No. 784 has been
repealed by § 11-3-1(f). We first turn our attention to the
latter issue because an affirmative response to it will make
it unnecessary for us to address the constitutionality of a
1070850, 1070893, 1070917
28
legislative enactment. See generally, e.g., Lowe v. Fulford,
442 So. 2d 29, 33 (Ala. 1983) ("'Generally courts are
reluctant to reach constitutional questions, and should not do
so,
if
the
merits
of
the
case
can
be
settled
on
non-constitutional grounds. White v. U.S. Pipe & Foundry Co.,
646 F.2d 203 (5th Cir.1981).'" (quoting trial court's order));
Becton v. Rhone-Poulenc, Inc., 706 So. 2d 1134, 1142 (Ala.
1997) (explaining that "because we hold that [the federal
statute] does not apply under the facts of this case, it is
unnecessary for us to determine any constitutional issue
concerning [that statute's] preemption of Alabama's applicable
statute of limitations").
We begin our analysis with a brief examination of the
decision of this Court in Stokes v. Noonan, 534 So. 2d 237
(Ala. 1988). At issue in Stokes was § 11-3-6, the precursor
statute to § 11-3-1(b), the general law at issue in the
present case. At the time Stokes was decided, however, § 11-
3-6 contained no exception for local laws. It stated simply
as follows with respect to a vacancy in a county commission
seat:
"In case of a vacancy, it shall be filled by
appointment by the governor, and the person so
1070850, 1070893, 1070917
29
appointed shall hold office for the remainder of the
term of the commissioner in whose place he is
appointed."
This general law was in place when the legislature enacted
Act No. 85-237, Ala. Acts 1985. Similar to the local law at
issue here, Act No. 85-237 was a local law intended to provide
for filling vacancies on a county commission of one particular
county, specifically Mobile County, by a special election.
Addressing the constitutionality of Act No. 85-237, the Stokes
Court reasoned that
"the
legislature,
by
enacting
a
general
law
containing no ... provision or exception for contrary
local laws, thereby intended that general law to be
primary and the subject subsumed entirely by the
general law. In that situation, § 105 does operate
to prohibit the enactment of contrary local laws."
Stokes, 534 So. 2d at 239 (quoting Baldwin County v. Jenkins,
494 So. 2d 584, 587 (Ala. 1986)(emphasis omitted)). On this
basis, the Stokes Court declared Act No. 85-237 to be
unconstitutional.
Riley v. Kennedy, 928 So. 2d 1013 (Ala. 2005), dealt with
the same local law as did Stokes, Act No. 85-237. By the time
this Court decided Riley, however, the legislature had amended
§ 11-3-6 to add the beginning proviso "[u]nless a local law
1070850, 1070893, 1070917
30
authorizes a special election." Act No. 2004-455. The
plaintiffs in Riley argued that that made all the difference:
"Kennedy argues that Act No. 2004-455, which
amended § 11-3-6, Ala. Code 1975, manifests an intent
by the legislature to cure the impediment to the
enforceability this Court found as to Act No. 85-237
and to now give effect to that Act and that,
consequently, a special election is the proper
procedure by which to fill the vacancy created on the
Mobile County Commission by Jones's resignation."
928 So. 2d at 1016. The Court in Riley disagreed:
"This Court has consistently held that
"'"statutes are to be prospective only,
unless
clearly
indicated
by
the
legislature. Retrospective legislation is
not favored by the courts, and statutes
will not be construed as retrospective
unless the language used in the enactment
of the statute is so clear that there is no
other possible construction. Sutherland
Stat. Const., § 41.04 (4th ed 1984)."'"
Riley, 928 So. 2d at 1016. The Court continued:
"Here, the plain language in Act No. 2004-455,
amending § 11-3-6, Ala. Code 1975, provides for
prospective application only, and that language must
be given effect according to its terms. Nothing in
the language in Act No. 2004-455 demonstrates an
intent by the legislature that the amendment of §
11-3-6 apply retroactively. The argument that Act
No. 2004-455 applies prospectively only is further
supported by the preamble of the Act, which provides
that the purpose of the Act is '[t]o amend Section
11-3-6 of the Code of Alabama 1975, relating to
county commissions, to authorize the Legislature ...
to provide for the manner of filling vacancies in the
1070850, 1070893, 1070917
31
office of the county commission.' (Emphasis added.)
The language 'to authorize the Legislature ... to
provide' the means by which vacancies on the county
commission are to be filled further indicates an
intention by the legislature that the Act is to be
prospectively applied. Therefore, we hold that Act
No.
2004-455
applies
prospectively
only;
consequently, Governor Riley is authorized to fill
the vacancy on the Mobile County Commission by
appointment."
Riley, 928 So. 2d at 1017 (most emphasis added; some emphasis
omitted).
The Election Commission and Sheriff Hale argue that the
issue in Riley was whether Act No. 2004-455 could "revive" a
local act, Act No. 85-237, which previously had been declared
unconstitutional in Stokes. Act No. 784, they point out, was
at no time before the enactment of Act No. 2004-455 judicially
declared to be unconstitutional. "It follows," according to
the Election Commission and Sheriff Hale, "that Act No. 77-784
does not need to be revived. Therefore, the issue before this
Court in Riley v. Kennedy is not present in this case and the
Riley v. Kennedy decision is inapposite to this case."
The reasoning unanimously adopted by this Court in Riley
does not admit of the distinction urged by the appellees.
Again, as this Court stated, "the plain language in Act No.
2004-455 ... provides for prospective application only";
1070850, 1070893, 1070917
32
"[n]othing in the language in Act No. 2004-455 demonstrates an
intent by the legislature that the amendment [to the general
law] apply retroactively," and "the preamble of the Act ...
provides that the purpose of the Act is '... to authorize the
Legislature by local law to provide'" for exceptions to the
general law. 928 So. 2d at 1017.
Thus, in Riley, the introductory proviso in § 11-3-6 --
"[u]nless a local law authorizes a special election" -- was
interpreted to apply only to local laws enacted after Act No.
2004-455. Approximately two years after this Court's decision
in Riley was issued, the legislature, in Act No. 2007-488,
reenacted the same language -- including the aforesaid proviso
-- which had been interpreted in Riley. It did so without
choosing to make any changes to it (other than to renumber it
as § 11-3-1(b)). The Working plaintiffs, the Governor, and
Bowman argue that the meaning of this language was decided in
Riley and that this Court has now but to apply that meaning in
the present case. We agree. Other than the renumbering of
the section in which this language appears, there has been no
change in this language since the decision in Riley.
1070850, 1070893, 1070917
33
Our agreement with the appellants' position is buttressed
by long-established and fundamental principles of statutory
construction.
"[T]here exists, and has long existed, in this state,
a principle that when the legislature readopts a code
section, or incorporates it into a subsequent Code,
prior decisions of this court permeate the statute,
and it is presumed that the legislature deliberately
adopted the statute with knowledge of this court's
interpretation thereof."
Edgehill Corp. v. Hutchens, 282 Ala. 492, 495-96, 213 So.2d
225, 227-28 (1968). See also, e.g., Galloway Coal Co. v.
Stanford, 215 Ala. 79, 81, 109 So. 377, 379 (1926) ("'It is a
settled rule, that, in the adoption of the Code, the
Legislature is presumed to have known the fixed judicial
construction pre-existing statutes had received, and the
substantial re-enactment of such statutes is a legislative
adoption of that construction.' Morrison v. Stevenson, 69
Ala. 448, [450 (1881)]."); 2B Norman J. Singer, Sutherland
Statutory Construction § 49.09 (5th ed. 1992) (compiling
numerous Alabama cases to the same effect). As the Court
aptly put it in the early case of Barnewall v. Murrell, 108
Ala. 366, 377, 18 So. 831, 836 (1895), it is "an elementary
rule of statutory construction" that, where a reenacted
1070850, 1070893, 1070917
34
statute has previously been construed by the courts, it is
"presumed the legislature intended the adoption of that
construction, or [it] would have varied the words, adapting
them to a different intent." Here, the legislature could have
"varied the words" of former § 11-3-6 in an effort to "adapt
them to a different intent," but did not.
In accordance with the previous decision of this Court in
Riley v. Kennedy and based on well-established principles of
statutory construction, we conclude that § 11-3-1(b) requires
vacancies on a county commission to be filled by gubernatorial
appointment and that the proviso at the outset of that
subsection (making an exception for local laws that authorize
special elections) does not apply retroactively, that is to
local laws that predate the legislature's adoption of that
proviso. Act No. 784, Ala. Acts 1977, is such a local law.
In 2007, the legislature added subsection (f) to § 11-3-1.
See Act No. 2007-488, Ala. Acts 2007. Section 11-3-1(f) now
expressly repeals local laws in conflict with any other
provision of § 11-3-1: "Any existing local law or portion
thereof in conflict with this section is specifically repealed
to the extent of the conflict effective with the next election
1070850, 1070893, 1070917
The Working plaintiffs also contend that Act No. 784
11
violates their equal-protection rights and that, even if Act
No. 784 governed, the Election Commission set the special
election on the wrong day. As is true of the issue of the
constitutionality of Act No. 784 in relation to § 105 of the
Alabama constitution, our holding today makes it unnecessary
for us to reach these additional issues.
35
following September 1, 2007." Act No. 784, by purporting to
provide for special elections to fill vacancies on the
Jefferson County Commission, is "in conflict" with § 11-3-
1(b), which requires vacancies to be filled by gubernatorial
appointment, with no exception for preexisting local laws.
Act No. 784, as a preexisting local law, therefore was
repealed by the legislature's adoption of § 11-3-1(f). The
trial court's validation of the February 5 special election on
the basis that it was authorized by Act No. 784 is due to be
reversed.11
IV. The Right to a November 2008 Election
McGinnis argues on appeal that he is entitled to an order
requiring the Election Commission to include the county
commission seat for district 1 on the November 2008 general
election ballot. In support of this view, he cites us to the
portion
of
§
11-3-1(b)
that
provides
that
"[i]f
the
appointment [by the Governor to fill a vacancy on a county
1070850, 1070893, 1070917
The opposition of the Election Commission to placing the
12
county commission seat on the November ballot has been
premised on its view that Act No. 784 supersedes the
provisions of the general law in this regard.
36
commission] occurs at least 30 days before the closing of
party qualifying as provided in Section 17-13-5," a condition
that exists in this case, "the person appointed to the vacated
office shall only serve until seven days after the next
general election following the appointment ...." We also
observe that the penultimate sentence of § 11-3-1(b) includes
a reference to "the election required by operation of this
subsection." Given our ruling today as to the repeal of Act
No. 784, McGinnis's understanding of § 11-3-1(b) as it relates
to the conduct of an election to fill the vacancy in the
Jefferson County Commission is correct.
McGinnis seeks a
12
judgment requiring that the election prescribed by § 11-3-1(b)
be placed on the November 2008 general election ballot and
"such additional orders as may be needed to secure full and
appropriate relief consistent with the right of political
parties to nominate candidates" for that election. The trial
court is instructed to enter an appropriate order declaring
that the required election is to be placed on the November
2008 general election ballot. As for the remainder of the
1070850, 1070893, 1070917
37
relief requested by the appellants, this Court is confident
that appropriate officials will take the necessary and
appropriate steps as may be called for or allowed in any
applicable provisions of Title 17, Ala. Code 1975, and any
other applicable law, whether relating to the selection by
political parties of nominees or any other aspect of the
election process. Nothing herein shall prevent the parties
from petitioning the trial court for such further relief as
may be necessary and appropriate to fulfill the intent of this
Court's judgment.
V. Conclusion
For the reasons discussed, the judgment of the trial court
upholding the validity of the February 5 special election on
the basis of its conclusion that Act No. 784 authorized that
election was in error. The Governor's appointment of George
F. Bowman to fill the vacant district 1 seat on the Jefferson
County Commission was in accordance with § 11-3-1(b) and was
lawful. An election for that seat is to be held as part of
the November 2008 general election. Accordingly, we reverse
the trial court's judgment and remand the cause before us to
1070850, 1070893, 1070917
38
the trial court for the entry of a judgment consistent with
this opinion.
1070850–-REVERSED AND REMANDED.
1070893–-REVERSED AND REMANDED.
1070917–-REVERSED AND REMANDED.
Cobb, C.J., and See, Lyons, Woodall, Stuart, Smith, Bolin,
Parker, and Murdock, JJ., concur. | June 30, 2008 |
c5ddadb6-0c85-42ff-90e0-b8bffeaf6e89 | Dorothy Falls v. JVC America, Inc. | N/A | 1051677 | Alabama | Alabama Supreme Court | Rel: 06/13/2008
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, 2007-2008
_________________________
1051677
_________________________
Dorothy Falls
v.
JVC America, Inc.
Appeal from Tuscaloosa Circuit Court
(CV-04-1558)
PARKER, Justice.
I. Background
Dorothy Falls began working for JVC America, Inc.
("JVC"), on November 13, 1986, and continued working for JVC
until June 23, 2004, operating winding machines in the tape
facility and various machines in the disc facility at JVC's
plant. Around June 2003 she was transferred from the tape
department to the disc department, and shortly thereafter the
1051677
2
tape facility closed. Her primary responsibility in the disc
facility involved printing labels.
On August 19, 2003, Falls began to experience headaches,
nausea, and weakness. Although the first onset of these
symptoms occurred, not at work, but while she was driving her
car, she subsequently started experiencing these symptoms upon
her arrival at work or shortly thereafter. While she was
experiencing these symptoms on August 21, 2003, paramedics
took her to the hospital, and she was treated by Dr. Craig
Buettner. On August 27, 2003, she again experienced these
symptoms and visited Dr. Buettner. Dr. Buettner told her not
to return to work and set an appointment for her for September
12, 2003. On that date she told Dr. Buettner that her
symptoms had disappeared. At Dr. Buettner's request, she saw
a neurologist, Dr. James Geyer, on September 24, 2003. Dr.
Geyer found no abnormalities and authorized her to return to
work on September 29, 2003. However, her symptoms recurred
within five hours of beginning her shift.
When she visited Dr. Buettner again on October 2, 2003,
he began to suspect that something at the plant, like a dye or
a fume, might be causing an allergic reaction. Shortly
1051677
3
thereafter, she saw Dr. Peter Casten, medical director of the
DCH Regional Medical Center in Tuscaloosa, which specializes
in occupational-health issues. Dr. Casten evaluated her but
was unable to determine at that time whether her symptoms were
work related. She returned to work on November 11, 2003, and
had an immediate onset of symptoms. On that date Dr. Lisa
Mani, who worked with Dr. Casten's practice group, saw Falls;
Dr. Mani noted that the symptoms occurred only while Falls was
at the JVC workplace.
Pursuant to Dr. Buettner's authorization, Falls returned
to work again early in June 2004, and within three hours she
began to experience symptoms so severe she felt like she would
pass out, and she had to leave.
On or about June 21, 2004, Falls returned to work and
later that day advised Gail Lawson, her "lead person" at the
JVC plant, that she was ill. Lawson told her to see Mike
Hall, her superintendent. Hall took her to the Human
Resources Department, where she met with Sandy Kornegay and
Tom Kizziah. They gave Falls a resignation form, but she
refused to sign it and asked for permission to leave to see
her doctor, which was granted. Over the next several days she
1051677
Falls testified that she had occasionally worked for
1
brief periods in the packaging department of the disc
facility, and that while she was working in the packaging
department her symptoms became less severe but did not
4
saw Dr. Buettner, her personal physician, and Dr. Casten,
JVC's company-approved doctor.
On the evening of June 22, 2004, Falls received a
telephone message asking her to contact Felicia Gross with
JVC. Gross was responsible for overseeing JVC's workers'
compensation claims and making medical appointments for work-
related injuries. Falls spoke with Gross, and Gross made an
appointment for her with Dr. Casten for June 23, 2004, at 1:00
p.m.
On June 23, 2004, Gross spoke with Victor Hamner, the
plant manager, concerning Falls. She testified that they
discussed whether Falls's case could result in a worker's
compensation claim. Hamner instructed Gross to arrange for
Falls to see him before she saw Dr. Casten.
Falls met with Hamner at 1:00 p.m. on June 23, 2004. She
told Hamner that she could not work in the plant without
becoming physically ill. Hamner told her she would have to
resign or she would be terminated. She answered that she
could not return to work in the plant, but she refused to
1
1051677
disappear. She did not consider a transfer to the packaging
department to be an acceptable option because her symptoms,
although less severe, were still present and because those who
worked in packaging were temporary employees whose wages were
less than hers.
The merits of Falls's worker's compensation claim are not
2
before this Court in this appeal.
5
resign. Hamner therefore terminated Falls's employment. Her
termination notice read:
"Dorothy Falls is being terminated today for the
following 2 reasons: (1) Lack of dependability; and
(2) She has expressed to us that she can no longer
work in this facility.
"Dorothy has not returned to work since her leave of
absence ended 6/10/04. Sandy Kornegay, Tom Kizziah,
and Mike Hall met with Dorothy on June 21/04 and she
told them at that time that she gets sick as soon as
she walks through the door of JVC, and she expressed
that she cannot work in this building."
Falls filed a complaint against JVC in the Tuscaloosa
Circuit Court, alleging that JVC had fired her in retaliation
for her filing or intending to file a worker's compensation
claim (CV-04-1558); she also filed a worker's compensation
claim against JVC in the Tuscaloosa Circuit Court.
2
The trial court entered a summary judgment in favor of
JVC in Falls's retaliatory-discharge case, finding:
"It is undisputed from the evidence that the
decision to terminate [Falls] from her employment at
1051677
This is apparently a typographical error. The date
3
should be "6/22/04."
6
JVC was made on 6/22/04. ... [JVC employees and
officials] testified that on 6/22/06,[ ] they had no
3
knowledge that [Falls] was claiming that her medical
condition was related to her occupation at JVC. The
only testimony regarding knowledge of the claim for
worker's
compensation
benefits
came
from
a
conversation [Falls] had with Felicia Gross, who
played no role in [JVC's] decision to terminate
[Falls's] employment. This conversation took place
on 6/23/04, and after the decision to terminate
[Falls] had been made by others. It is also
undisputed that on 6/22/04, Sandy Kornegay called
[Falls] after the decision makers' meeting, and gave
her a choice of resigning or being terminated.
Since the decision to terminate [Falls] was made on
6/22/04, [Falls's] workman's compensation claim
could not be the sole motivating factor in [Falls's]
termination.
"There is a failure of proof of specific
knowledge
of
[Falls's]
claims
for
workman's
compensation benefits on the part of the decision
makers, at the time she was terminated, and that the
knowledge of her workman's compensation claim was
the
sole
motivating
force
behind
[Falls's]
termination. Therefore, there is a critical link
missing in the chain of [Falls's] burden of proof.
Since [Falls] is unable to prove all the elements of
a prima facie case, [JVC] is entitled to judgment as
a matter of law.
"Summary judgment is therefore granted in favor
of the defendant JVC on [Falls's] retaliatory
discharge claim."
Falls has appealed that summary judgment to this Court.
II. Standard of Review
1051677
7
This Court set forth the appropriate standard of review
of a summary judgment in Lee v. City of Gadsden, 592 So. 2d
1036, 1038 (Ala. 1992):
"[O]ur review of a summary judgment is de novo; that
is, we must examine all the evidentiary submissions
that were presented to the trial court. Tolbert v.
Gulsby, 333 So. 2d 129 (Ala. 1976). The two-tiered
standard of review for summary judgment has been
repeatedly stated: (1) there must be no genuine
issues of material fact, and (2) the movant must be
entitled to a judgment as a matter of law. Ala. R.
Civ. P. 56(c), Tripp v. Humana, Inc., 474 So. 2d 88
(Ala. 1985). Further, on review of a summary
judgment, we must view all the evidence in a light
most favorable to the nonmovant and we must
entertain
all
reasonable
inferences
from
the
evidence in favor of the nonmovant. Fincher v.
Robinson Bros. Lincoln-Mercury, Inc., 583 So. 2d 256
(Ala. 1991). See, also Hanners v. Balfour Guthrie,
Inc., 564 So. 2d 412 (Ala. 1990).
"The party moving for a summary judgment must
make a prima facie showing that there are no genuine
issues of material fact and that he is entitled to
a judgment as a matter of law, Fincher, 583 So. 2d
at 257. If this showing is made, the burden then
shifts to the nonmovant to rebut the movant's prima
facie showing by 'substantial evidence.'"
(Footnote omitted.)
III. Analysis
In 1984 the Legislature established, as part of the
Workers' Compensation Act, § 25-5-1 et seq., Ala. Code 1975,
a cause of action for retaliatory discharge based on the
plaintiff's filing a claim for worker's compensation benefits:
1051677
8
"No employee shall be terminated by an employer
solely because the employee has instituted or
maintained any action against the employer to
recover workers' compensation benefits under this
chapter ...."
Ala. Code 1975, § 25-5-11.1. In Alabama Power Co. v.
Aldridge, 854 So. 2d 554, 563 (Ala. 2002), this Court
articulated the following test for determining whether a
plaintiff may recover for retaliatory discharge under § 25-5-
11.1:
"In order for an employee to establish a prima facie
case of retaliatory discharge the employee must
show: (1) an employment relationship, (2) an on-the-
job injury, (3) knowledge on the part of the
employer
of
the
on-the-job
injury,
and
(4)
subsequent termination of the employment based
solely upon the employee's on-the-job injury and the
filing of a workers' compensation claim."
JVC does not dispute that Falls had an employment
relationship with JVC, that Falls developed a medical
condition during the course of that employment, or that JVC
knew of that medical condition. JVC, however, does dispute
that Falls's medical condition was caused by or was related to
her job and therefore disputes that JVC knew that Falls's
medical condition was caused by or was related to her job.
JVC strongly denies that the termination of Falls's employment
1051677
9
was based solely upon her medical condition and her filing of
a worker's compensation claim.
We will focus upon the fourth prong of the Aldridge test,
which is dispositive: whether the termination of Falls's
employment was based solely upon her medical condition and her
filing of a worker's compensation claim based on that
condition. We will not elaborate on the second and third
prongs of the Aldridge test, because resolution of those
issues is not necessary to the resolution of this case.
We first observe that, according to the Aldridge test,
the "subsequent termination" of Falls's employment must have
been "based solely upon [her] on-the-job injury and the filing
of a workers' compensation claim." Aldridge, 854 So. 2d at
563. However, Falls testified that she did not file a
worker's compensation claim until after JVC terminated her
employment. Thus, the question is whether the termination of
her employment can be considered "subsequent" to her filing a
worker's compensation claim and whether the sole reason for
her discharge was her filing of a worker's compensation claim.
Falls argues that "[s]ection 25-5-11.1 does not require
formal commencement of a civil action as a prerequisite to
recovery. Hexcel Decatur, Inc. v. Vickers, 908 So. 2d 237, 242
1051677
10
(Ala. 2004) (citing cases and refusing to overrule precedent
to that effect)."
Hexcel Decatur did hold that § 25-5-
11.1 does not require, in a retaliatory-discharge action, that
a civil action seeking worker's compensation benefits be filed
before the termination of the plaintiff's employment. The
Court in Hexcel Decatur agreed with the plaintiff's argument
that "only a claim for benefits need be made before the
employment is terminated in order for a former employee to
maintain a retaliatory-discharge action." Hexcel Decatur, 908
So. 2d at 239. The Court in Hexcel Decatur refused to
overrule Tyson Foods, Inc. v. McCollum, 881 So. 2d 976 (Ala.
2003), and McClain v. Birmingham Coca-Cola Bottling Co., 578
So. 2d 1299 (Ala. 1991), both of which had held that the
filing of a worker's compensation claim, without the
institution of a civil action seeking worker's compensation
benefits, was sufficient to meet the requirement of § 25-5-
11.1.
However, Falls does not meet the requirement of § 25-5-
11.1, even as interpreted by Hexcel Decatur, Tyson Foods, and
McClain. Those cases held that § 25-5-11.1 could be satisfied
if a worker's compensation claim is filed before the former
employee's employment is terminated. There is no evidence
1051677
11
indicating that Falls had filed a claim or even that she had
talked about filing a claim before JVC terminated her
employment. The only evidence of a retaliatory discharge is
Gross's testimony that she told Hamner that Falls's injury
could involve a "possible Worker's Comp claim." To treat
Falls's discharge as a retaliatory discharge, we would have to
be convinced that Hamner terminated Falls's employment in
retaliation for her possibly filing a worker's compensation
claim that she had not filed or even talked about filing. And
even if we were to be so convinced, treating her termination
as a retaliatory discharge would stretch § 25-5-11.1 far
beyond the outer limits of Hexcel Decatur, Tyson Foods, and
McClain. Falls has failed to establish that she had commenced
any kind of worker's compensation claim before JVC terminated
her employment.
If the Legislature desires to expand § 25-5-11.1 so that
a
retaliatory
discharge
would include terminations of
employment in anticipation of workers' compensation claims, it
may do so by amending the statute. Unless and until the
Legislature does so, however, we must interpret the statute as
written. Because the statute uses the verb phrase "has
instituted or maintained" in relation to an action to recover
1051677
12
worker's compensation benefits, it is clear that § 25-5-11.1
contemplates an action for a termination of employment in
retaliation against an event, i.e., the filing of a worker's
compensation claim, that has already occurred.
IV. Conclusion
Alabama's
Workers'
Compensation
Act
provides
compensation
for employees who are injured and/or disabled on the job.
Falls has testified that she filed an action seeking worker's
compensation benefits after her employment with JVC was
terminated. We have been provided with no information as to
the status or outcome of that action, and we make no judgment
concerning its merits.
The case before us is limited to Falls's claim of a
retaliatory discharge under § 25-5-11.1. Under the facts of
this case, Falls is unable to establish a prima facie case
that she was discharged by JVC in retaliation for making a
claim for benefits under the Workers' Compensation Act.
Therefore, the trial court did not err in entering a summary
judgment for JVC, and we affirm that summary judgment.
1051677
13
AFFIRMED.
See, Woodall, Stuart, Smith, Bolin, and Murdock, JJ.,
concur.
Lyons, J., concurs specially.
Cobb, C.J., concurs in part and concurs in the result.
1051677
14
LYONS, Justice (concurring specially).
I concur in the main opinion, which refuses to recognize
a claim of retaliatory discharge pursuant to § 25-5-11.1, Ala.
Code 1975, under the circumstance here presented, when the
former employee had not filed a claim for benefits under the
Workers' Compensation Act at the time she was discharged.
Although the potential for injustice remains in the context
where an employer fires an unconscious employee as the
employee is being loaded into an ambulance, any expansion of
the statutory remedy for a retaliatory discharge to meet
circumstances where the employer knew or should have known of
the likelihood of a claim is a matter for the legislature.
In addition to the above-described window of opportunity
to be used by an employer to foreclose the statutory remedy,
this Court's recent decision in Blue Circle Cement Inc. v.
Phillips, [Ms. 1060564, November 30, 2007] ___ So. 2d ___
(Ala. 2007), opened a second window of opportunity in case the
first window is missed. Under Blue Circle, an employee can be
discharged
after
claiming
benefits
but
before
reaching
maximum
medical improvement, and the employer can defeat the
subsequent retaliatory-discharge action by proof of the
1051677
15
employee's inability to work as the reason for discharge. As
I stated in my dissent in Blue Circle, the defense of
inability to perform as a basis for an employee's discharge
should not be available absent proof of the futility of
further rehabilitation pursuant to benefits available to the
employee under the Workers' Compensation Act. I was in a
small minority in Blue Circle; the correction of this
injustice, therefore, is also a matter for the legislature.
1051677
16
COBB, Chief Justice (concurring in part and concurring in the
result).
I concur in the holding that under the facts of this case
Falls has failed to establish a prima facie case of
retaliatory discharge under Ala. Code 1975, § 25-5-11.1.
However, to the extent that the main opinion might be read as
authority for the proposition that filing a worker's
compensation
claim
is
a
necessary
prerequisite
for
establishing a prima facie case of retaliatory discharge in
every case, I concur only in the result. | June 13, 2008 |
97000a0d-bdef-41f7-a8c7-9f8c872b0539 | Ex parte D. G. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: D. G. v. State of Alabama) | N/A | 1070892 | Alabama | Alabama Supreme Court | REL: 05/23/2008
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, 2007-2008
_________________________
1070892
_________________________
Ex parte D.G.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: D.G.
v.
State of Alabama)
(Jefferson Juvenile Court, JU-06-52862;
Court of Criminal Appeals, CR-06-0925)
LYONS, Justice.
WRIT DENIED.
1070892
2
See, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Cobb, C.J., and Murdock, J., dissent.
1070892
3
MURDOCK, Justice (dissenting).
I respectfully dissent. As I submitted in my special
writing in Ex parte Soto, [Ms. 1070118, April 11, 2008] ___
So. 2d ___, ___ (Ala. 2008) (Murdock, J., concurring
specially): "Structurally, syntactically, and grammatically,
§ 13A-10-15(a), Ala. Code 1975, is nonsensical."
Cobb, C.J., concurs. | May 23, 2008 |
c5dd9f36-92b7-442e-a47c-a35af65f1bca | Ex parte Nationwide Insurance Company. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Donna Jo Chapman Alexander v. Verner Lee Herron et al.) | N/A | 1061708 | Alabama | Alabama Supreme Court | REL: 4/18/08
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, 2007-2008
____________________
1061708
____________________
Ex parte Nationwide Insurance Company
PETITION FOR WRIT OF MANDAMUS
(In re: Donna Jo Chapman Alexander
v.
Verner Lee Herron et al.)
(Etowah Circuit Court, CV-02-1184)
SEE, Justice.
Nationwide Insurance Company ("Nationwide") petitions
this Court for the writ of mandamus directing the trial court
1061708
2
to dismiss as untimely Donna Jo Chapman Alexander's claim for
underinsured-motorist ("UIM") benefits. We conclude that
Alexander did not exercise due diligence in ascertaining the
identity of Nationwide as one of the fictitiously named
defendants
and
amending
her
complaint
to
substitute
Nationwide
for a fictitiously named defendant before the statutory
limitations period had expired; therefore, we grant the
petition and issue the writ.
Facts and Procedural History
On September 1, 2000, Alexander was involved in an
automobile accident with Verner Lee Herron. Alexander's
vehicle was insured by Nationwide, and the insurance policy
included uninsured/underinsured-motorist coverage in the
amounts of $20,000 for bodily injury to each person and
$40,000 for each accident. Alexander sustained physical
injuries as a result of the accident, and in August 2002,
Alexander sued Herron in the Etowah Circuit Court, alleging
that Herron had negligently and/or wantonly caused the
accident.
Alexander's
complaint
also
included
as
fictitiously
named defendants "those persons or entities which issued
and/or owe benefits and coverage pursuant to uninsured and/or
1061708
3
underinsured motorists to Plaintiff." Petition at Appendix 2,
p. 1.
In June 2007, Alexander moved the trial court to
substitute Nationwide for one of the fictitiously named
defendants listed in the complaint and to include a claim
against Nationwide for UIM benefits. Nationwide moved to
dismiss Alexander's UIM claim on the ground that it is barred
by the six-year statute of limitations governing claims for
UIM benefits. The trial court denied Nationwide's motion to
dismiss. Nationwide petitions this Court for the writ of
mandamus directing the trial court to enter an order
dismissing Alexander's UIM claim against Nationwide.
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)
(quoting Ex parte Butts, 775 So. 2d 173, 176 (Ala. 2000),
quoting in turn Ex parte United Serv. Stations, Inc., 628 So.
2d 501, 503 (Ala. 1993)). A writ of mandamus is the proper
1061708
4
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)); see also Ex parte Klemawesch,
549 So. 2d 62 (Ala. 1989) (issuing the writ of mandamus and
directing the trial court to grant the "motion to quash
service or, in the alternative, to dismiss").
Analysis
This Court has stated that a claim for UIM benefits is an
action based on contract. See Ex parte Barnett, [Ms. 1060174,
August 3, 2007] ___ So. 2d ___, ___ (Ala. 2007) ("[A UIM]
insurance carrier's liability to the insured is based solely
on its contractual obligations as laid out in the policy.");
Continental Nat'l Indem. Co. v. Fields, 926 So. 2d 1033, 1037
(Ala. 2005) (holding that a cause of action "under the
uninsured-motorist statute is contractual" in nature). The
statute of limitations for an ex contractu action is six
1061708
5
years. Weaver v. American Nat'l Bank, 452 So. 2d 469, 473
(Ala. 1984); see also § 6-2-34, Ala. Code 1975 ("The following
must be commenced within six years: ... Actions upon any
simple contract or specialty not specifically enumerated in
this section."). The accident that gave rise to Alexander's
injuries occurred on September 1, 2000. Alexander filed her
complaint on August 28, 2002, and included as fictitiously
named defendants any insurance company that owes benefits
pursuant
to
any
policy
extending
uninsured
and/or
underinsured
coverage. She did not amend her complaint to substitute
Nationwide for a fictitiously named defendant until June 13,
2007, nine months after the six-year statutory limitations
period had expired. Thus, the question before this Court is
whether Alexander's amendment substituting Nationwide for a
fictitiously named defendant relates back to the original
complaint, thereby bringing her UIM claim within the
applicable six-year statute-of-limitations period.
Fictitious-party pleading is governed by Rule 9(h), Ala.
R. Civ. P., which 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, when
that party's true name is discovered, the process
1061708
6
and all pleadings and proceedings in the action may
be amended by substituting the true name."
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.]."
This Court has elaborated on the interplay between Rule
9(h) and Rule 15(c)(4), Ala. R. Civ. P., stating that these
two rules "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 at 597 (quoting Fulmer v. Clark
Equip. Co., 654 So. 2d 45, 46 (Ala. 1995)). In order to
invoke the relation-back principle and proceed under the
fictitious-party
rule,
the
original
complaint
must
"adequately
describe[] the fictitiously named defendant and state[] a
claim against such a defendant." Fulmer, 654 So. 2d at 46
(citing Jones v. Resorcon, Inc., 604 So. 2d 370 (Ala. 1992)).
In addition, a party "'"must have been ignorant of the true
identity of the defendant and must have used due diligence in
attempting to discover it."'" Pearson v. Brooks, 883 So. 2d
1061708
7
185, 191 (Ala. 2003) (quoting Crowl v. Kayo Oil Co., 848 So.
2d 930, 937 (Ala. 2002), quoting in turn Fulmer, 654 So. 2d at
46 (emphasis omitted)). The correct standard for determining
whether a party exercised due diligence in attempting to
ascertain
the
identity
of
the fictitiously named defendant
"is
whether the plaintiff knew, or should have known, or was on
notice, that the substituted defendants were in fact the
parties described fictitiously." Davis v. Mims, 510 So. 2d
227, 229 (Ala. 1987).
Nationwide argues that Alexander did not exercise due
diligence in substituting Nationwide for a fictitiously named
defendant because "Alexander clearly knew that Nationwide was
her insurer on the date of the accident and is, therefore,
deemed to have known the identity of Nationwide Insurance
Company on that date." Petition at 12. Nationwide further
argues that even if Alexander was unaware of Nationwide's
identity, she still failed to exercise due diligence because
"she completely and utterly failed to take any action
whatsoever that could aid her in determining the true identity
of the supposed fictitious [UIM] insurer." Petition at 13.
Alexander contends that she did not fail to exercise due
1061708
8
diligence in substituting Nationwide for a fictitiously named
defendant because "it took an extended period of time for the
plaintiff to evaluate her injuries" and to determine "whether
or not [Herron] has sufficient coverage in light of
[Alexander's] injuries." Alexander's brief at 2. Alexander
maintains that she acted with due diligence because those two
pieces of information were necessary in evaluating her
potential claim for UIM benefits, and, she says, she amended
her complaint 10 days after acquiring this information.
We conclude that Alexander's amendment to substitute
Nationwide for a fictitiously named defendant does not relate
back to the date of her original complaint because she knew or
should have known Nationwide's identity at the time of the
accident. Alexander knew that Nationwide was her insurer; the
accident report lists Nationwide as her insurer. See Fulmer,
654 So. 2d at 46 (holding that the plaintiff did not exercise
due diligence in discovering the identity of Clark Equipment
Company as the manufacturer of the forklift on which he was
injured because the plaintiff "admitted that before he filed
his complaint he had been told that the forklift was a 'Clark'
model"). Even if we were to assume that Alexander did not
1061708
9
actually know that Nationwide was her insurer, she could have
discovered Nationwide's identity and the existence of UIM
coverage simply by examining her policy. See Crowl, 848 So. 2d
at 937 ("We agree with Kayo's argument that Crowl did not
exercise 'due diligence' to discover its identity as one of
the fictitiously named defendants in Crowl's complaint. ...
The record in this case shows that had Crowl examined the
property tax records for that property, he would have found
that the property had been assessed in Kayo's name.").
Nationwide has demonstrated a clear legal right to the
remedy sought because the undisputed evidence indicates that
Alexander knew, or at least should have known, that Nationwide
was her insurer. Therefore, she did not exercise due
diligence in ascertaining Nationwide's identity, and the
amendment to her complaint substituting Nationwide for a
fictitiously named defendant does not relate back to the date
of the filing of her original complaint.
We also note that allowing Alexander's claim to relate
back under these circumstances would permit her to use Rules
9(h) and 15(c), Ala. R. Civ. P., for a purpose for which those
rules were not intended. As this Court explained in Columbia
1061708
10
Engineering International, Ltd. v. Espey, 429 So. 2d 955, 959
(Ala. 1983):
"... Rule 9(h) is not intended to give plaintiffs
additional time beyond the statutorily prescribed
period within which to formulate causes of action.
Instead, the principal reason for the rule is to
toll the statute of limitations in emergency cases
where plaintiff knows he has been injured and has a
cause of action against some person or entity, but
has been unable to ascertain through due diligence
the name of that responsible person or entity."
(Citing Browning v. City of Gadsden, 359 So. 2d 361 (Ala.
1978), overruled on other grounds, City of Birmingham v.
Davis, 613 So. 2d 1222 (Ala. 1992).) See also Harmon v.
Blackwood, 623 So. 2d 726, 727 (Ala. 1993) (fictitious-party
pleading is not intended to "excuse the plaintiff's ignorance
of a cause of action against the fictitiously named
defendant").
In her response to Nationwide's motion to dismiss,
Alexander argues that dismissal of her UIM claim was not
warranted because Alexander's "counsel recently discovered a
potential claim under [Alexander's] underinsured motorist
coverage on June 6, 2007." Petition at Appendix 7, p. 1.
However, Rules 9(h) and 15(c), Ala. R. Civ. P., were not
intended to prevent the bar of the statute of limitations when
1061708
11
an individual does not discover the existence of the claim
until after the statutory limitations period expires. "[I]t
is incumbent upon the plaintiff, before the running of the
statutory period, to investigate and to evaluate his claim to
determine who is responsible for the injury ...." Marsh v.
Wenzel, 732 So. 2d 985, 989 (Ala. 1998) (quoting Harmon, 623
So. 2d at 727). The fact that Alexander did not determine
whether she had a UIM claim against Nationwide, thus, does not
permit her to substitute Nationwide for a fictitiously named
defendant after the statutory limitations period has run.
Therefore, Nationwide has demonstrated a clear legal right to
an order directing the trial court to dismiss Alexander's UIM
claim against it.
It is also apparent that Nationwide does not have another
adequate remedy. Ex parte Jackson, 780 So. 2d 681, 684 (Ala.
2000) (an appeal is not an adequate remedy to review the
defense, "[i]n a narrow class of cases involving fictitious
parties and the relation-back doctrine," that a claim is
barred by the statute of limitations).
Conclusion
We hold that the trial court should have dismissed
1061708
12
Alexander's UIM claim against Nationwide because
the
undisputed evidence indicates that Alexander failed to
exercise due diligence in ascertaining Nationwide's identity
and substituting Nationwide for the fictitiously named
defendant in her original complaint. Nationwide has
demonstrated (1) that is has a clear legal right to an order
directing the trial court to dismiss the UIM claim against it,
(2) that the trial court should have granted its motion to
dismiss and did not, (3) that it does not have another
adequate remedy, and (4) that jurisdiction in this Court is
proper; therefore, we grant Nationwide's petition and issue
the writ of mandamus directing the trial court to dismiss
Alexander's UIM claim against Nationwide.
PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | April 18, 2008 |
3b381708-8ce1-4798-a0bf-a552dd0da0c2 | The Waterworks and Sewer Board for the City of Selma v. Geraldine Allen and Samuel Randolph | N/A | 1061648 | Alabama | Alabama Supreme Court | REL: 08/15/2008
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
____________________
1061648
____________________
The Waterworks and Sewer Board of the City of Selma
v.
Geraldine Allen and Samuel Randolph
Appeal from Dallas Circuit Court
(CV-07-24)
SMITH, Justice.
The Waterworks and Sewer Board of the City of Selma ("the
Board") appeals from the dismissal of a declaratory-judgment
action it filed against Geraldine Allen and Samuel Randolph.
We reverse and remand.
1061648
2
Facts and Procedural History
The Board is a public corporation formed in accordance
with § 11-50-310 et seq., Ala. Code 1975, for the purpose of
operating a water and sewer system in the City of Selma. The
Board is composed of five directors, appointed by the Selma
City Council ("the City Council"), which has nine voting
members. See § 11-50-313, Ala. Code 1975. Each director of
the Board serves a term of six years, after initial staggered
terms, or, if the director is a municipal officer, he or she
serves "for the term for which he or she is appointed or
during his or her tenure as a municipal officer, whichever
expires first." § 11-50-313(a), Ala. Code 1975.
The City Council appointed Randolph to serve as a
director on the Board beginning in October 2000. When
Randolph's term expired in October 2006, the City Council had
not appointed a successor, and Randolph continued to serve in
a holdover capacity.
At a meeting of the City Council on January 22, 2007,
Randolph and Allen--both of whom were voting members of the
City Council--were nominated to fill Randolph's expired
position on the Board. Randolph abstained from the vote, and
1061648
According to the complaint, a director of the Board is
1
entitled to receive $800 per month in addition to compensation
for actual expenses such as travel and mileage.
3
Allen cast a vote. Of the eight votes cast, Allen received
five votes and Randolph three. The five votes cast for Allen
included her own vote; thus, if Allen's vote is not counted,
she received four votes.
On February 15, 2007, the Board filed a complaint in the
Dallas Circuit Court against Allen and Randolph seeking a
judgment declaring, among other things, the proper person to
serve as a director on the Board. The Board alleged that, by
voting for herself in the City Council's January 22, 2007,
selection of a director for the Board, Allen violated § 36-25-
9(c), Ala. Code 1975, a provision of Alabama's Code of Ethics
for Public Officials and Employees ("the Code of Ethics"),
which provides: "No member of any county or municipal agency,
board, or commission shall vote or participate in any matter
in which the member or family member of the member has any
financial gain or interest." More specifically, because
members of the Board are entitled to receive compensation for
1
their service as directors, the Board contended that Allen had
1061648
On February 13, 2007, Allen sent the following memorandum
2
to the Board and the City Council:
"Due to the fact I received a majority vote of
consensus from the City Council to be on the
[Board], I will not resign my appointment from this
Board. However, to ensure that no questions arise
as it relates to me receiving monetary gain, I
refuse to accept any salary (not one dime) during my
term on the [Board]."
4
violated § 36-25-9(c).2
The Board's complaint noted that without Allen's vote in
the City Council's January 22, 2007, selection of a director
for the Board, Allen would have received only four votes.
Relying on § 11-43-45, Ala. Code 1975, the Board then noted
that, if Allen's vote were not counted, the votes for Allen
represented less than a majority of the nine-member City
Council, which, it alleges, is necessary for an appointment to
the Board. Section 11-43-45 provides:
"All elections of officers shall be made viva
voce, and a concurrence of a majority of the members
to the council shall be required, and all members of
the council may vote any provision of law to the
contrary notwithstanding. On the vote resulting in
an election or appointment, the name of each member
and for whom he voted shall be recorded."
The Board's complaint asserted that "the Board needs the
Court to declare who is the proper person to serve and under
what circumstances the person would be allowed to serve," and
1061648
5
the complaint asked the court to "adjudge and declare the
rights and responsibilities of the parties." The Board also
asked for a judgment declaring that Allen's action as a City
Council member in voting for herself as a director of the
Board was "improper" and that the January 22, 2007, election
was therefore void. Finally, the Board sought an injunction
prohibiting Allen from taking a seat on the Board as a
director until she was "properly elected" and a declaration
that Randolph should continue serving on the Board until a
successor is properly elected.
At the time it filed its complaint, the Board also filed
a motion for a temporary restraining order ("TRO") to prevent
Allen from taking a seat on the Board during the pendency of
the Board's action and to permit Randolph to continue to serve
on the Board in a holdover capacity. On February 16, 2007,
the trial court issued an injunction prohibiting both Allen
and Randolph from serving on the Board during the pendency of
the Board's action.
Allen filed a motion to dismiss the Board's action,
arguing, among other things, that the Board did not have
standing to enforce § 36-25-9(c), Ala. Code 1975. On June 29,
1061648
Although Randolph apparently was served with a copy of
3
the Board's complaint, he did not file an answer or otherwise
participate in the action until after the trial court had
dismissed the Board's complaint. Randolph then filed a motion
to alter, amend, or vacate the judgment. The trial court
denied that motion. The Board named Randolph as an appellee
to this appeal, but Randolph did not file a brief.
6
2007, after additional motions and briefs had been filed
regarding Allen's motion to dismiss, the trial court dismissed
the Board's action and dissolved the injunction it had issued
on February 16, 2007. The Board filed a motion to alter,
amend, or vacate the trial court's judgment dismissing the
action and dissolving the injunction. The trial court denied
the postjudgment motion, and this appeal followed.3
Standard of Review
The trial court granted Allen's motion to dismiss the
Board's complaint on the basis that the Board did not have
standing to enforce § 36-25-9(c), Ala. Code 1975.
"'The standard of review of the grant of a
motion to dismiss ... was set out in Nance
v. Matthews, 622 So. 2d 297, 299 (Ala.
1993):
"'"On appeal, a dismissal is
not entitled to a presumption of
correctness. The appropriate
standard
of
review
...
is
whether, when the allegations of
the complaint are viewed most
strongly in the pleader's favor,
1061648
7
it appears that the pleader could
prove any set of circumstances
that
would
entitle
[him]
to
relief.
In
making
this
determination, this Court does
not
consider
whether
the
plaintiff
will
ultimately
prevail, but only whether [he]
may possibly prevail. We note
that a ... 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."'
"Jacks v. Madison County, 741 So. 2d 429, 430 (Ala.
Civ. App. 1999) (citations omitted). In addition,
'[m]otions to dismiss are rarely appropriate in
declaratory judgment proceedings. Such a motion
does,
however,
serve
one
purpose,
that
of
determining whether the [complaint] states the
substance of a bonafide justiciable controversy
which should be settled.' Wallace v. Burleson, 361
So. 2d 554, 555 (Ala. 1978) (citation omitted)."
Helms v. Barbour County, 914 So. 2d 825, 828-29 (Ala. 2005).
Discussion
The trial court's order dismissing the action states in
relevant part:
"The substance of Count I of the Board's
complaint is that a justiciable controversy exists
as to whether a proper appointment was made by the
Council when Allen voted for herself. The Board
alleges that Allen violated the Alabama Ethics Act,
particularly Ala. Code 1975, § 36-25-9(c), which
prohibits any member of any county or municipal
agency,
board
or
commission
from
voting
or
1061648
8
participating in any manner in which the member or
family member of the member has any financial
interest.
"In Count II of its complaint the Board seeks an
injunction, alleging that it will suffer irreparable
harm 'if the January 22, 2007, action of the Council
stands' and that it has no adequate remedy at law.
"In its paragraph prayer for relief the Board
asks this Court, inter alia: to declare the action
of Allen in voting for herself to be elected to the
Board ... improper and in violation of the Ethics
Act; to declare the January 22, 2007, vote to be
void; and to enjoin Allen from taking a seat on the
Board.
"....
"... At the outset, this Court must determine
whether it has jurisdiction to entertain the Board's
complaint and to grant the requested relief. In a
declaratory judgment action there must be a bona
fide existing controversy of a justiciable character
to confer jurisdiction upon the Court. The lack of
a justiciable controversy may be raised by a motion
under Rule 12, Ala. R. Civ. P. See Luken v.
BancBoston MTG Corp., 580 So. 2d 578 (Ala. 1991).
Allen argues the [Board] lacks standing to bring
this action because the Alabama Ethics Act does not
provide any private right of action. Hipps v.
Lauderdale County Bd. of Educ., 631 So. 2d 1023,
1027 (Ala. Civ. App. 1993), cert. denied (Feb. 4,
1994) ('We know of no cases holding that the Alabama
Code of Ethics, Ala. Code 1975, §§ 36-25-1 through
-30, contemplates a citizen bringing a private
action against a public official for a matter
falling within the purview of the Code of Ethics
....'). Moreover, the Alabama Ethics Act provides
a statutory mechanism for the investigation of
statements and complaints pertaining to public
officials, provides that the Ethics Commission may
1061648
9
report
suspected
violations
of
law
to
the
appropriate law enforcement authorities and provides
criminal penalties and administrative penalties for
the violation of the Act. Ala. Code 1975, §
36-25-27(c), specifically vests enforcement of the
chapter in the Ethics Commission and also allows the
Attorney General or the district attorney for the
appropriate jurisdiction to enforce provisions of
the Act.
"Defendant Allen argues that to grant the Board
the relief it has requested this Court must
determine and adjudge that she has committed a crime
in violation of the Ethics Act without the benefit
of any investigation by the Ethics Commission or the
involvement of any law enforcement agency or
indictment or trial. This Court agrees. Granting
the Board the relief it seeks would also run afoul
of the provisions of Article VII § 175, of the
Constitution of Alabama 1901, which provides for the
removal of city officers by impeachment and which
preserves the right to a jury trial, thereby
allowing the Board to bypass both the enforcement
provisions of the Ethics Act and the impeachment
provisions of the Constitution.
"In Kid's Care, Inc. v. Alabama Department of
Human Resources, 843 So. 2d 164 (Ala. 2003), the
Alabama Supreme Court observed that standing is an
essential element of justiciability and that not all
controversies,
even
very
public
ones,
are
justiciable. As noted in the Supreme Court's
opinion and the cases cited therein, standing turns
on whether a party has been injured in fact, and
whether that injury is to a legally protected right.
Accordingly, when a party without standing purports
to commence an action, the trial court acquires no
subject-matter jurisdiction. Since the Ethics Act
confers no private right of enforcement, this Court
cannot find that the Board has complained of any
real and tangible injury to a legally protected
right.
1061648
10
"Moreover, to grant the relief sought in Count
II, i.e., injunctive relief, the Board must show
both the existence of irreparable harm and the
absence of an adequate remedy at law. In its
application for a TRO, the Board defined its alleged
irreparable harm as follows:
"'3. There is no adequate remedy at
law and unless this Honorable Court grants
a temporary restraining order [the Board]
will suffer irreparable harm to-wit: a
person may be appointed to the [Board] who
is not legally allowed to serve, and the
Board could be said to have knowingly
violated the Alabama State Ethics laws.'
"It is undisputed that the Board has no
authority to appoint its members as that authority
is vested in the Council. Therefore, this Court
finds no basis from which it can conclude that the
Board could knowingly violate the Alabama Ethics Act
by the action taken by the Council in appointing
Allen to the Board. To the extent that the Board
and its members contend that Allen's conduct
violated the Ethics Act, their remedy is the same as
that possessed by every other citizen, i.e., to file
a complaint with the Alabama Ethics Commission.
Thereafter, the Ethics Commission, or the Attorney
General or the district attorney may take such
action as they deem to be appropriate.
"Accordingly, for the reasons set out herein,
this Court finds that the Board lacks standing
because it has failed to show the existence of a
justiciable controversy. Therefore, this Court lacks
subject-matter jurisdiction of this cause. The
plaintiff's complaint is due to be dismissed, and
this Court's injunctive order dated February 16,
2007, is due to be dissolved."
(Footnote and some internal citations omitted.)
1061648
11
The Board contends that the trial court erred in
dismissing its complaint on the basis that the Board did not
have standing to enforce § 36-25-9(c), Ala. Code 1975. The
Board argues that its action is not exclusively an attempt to
privately enforce the Code of Ethics. Rather, the Board
contends that, more generally, it is attempting to resolve the
issue whether Allen or Randolph is the appropriate director.
The Board's complaint alleged that the City Council
"attempted" to fill the vacancy on the Board created by the
expiration of Randolph's term by appointing Allen to serve as
a director. Under the standard of review applicable to a
ruling on a motion to dismiss, we accept that statement as
true.
The Board's complaint then alleged that there were two
potential problems with Allen's appointment. First, the Board
alleged that Allen's vote for herself violated the Code of
Ethics. Second, the Board cited § 11-43-45, Ala. Code 1975,
and alleged that the election process used by the City Council
to fill the vacancy on the Board "may also [have been]
improper since the record reveals that there was only [a] show
of hands and no roll-call vote or voice record of each
1061648
12
person's vote."
The
trial
court's
order
dismissing
the
complaint
addressed the Board's second allegation (i.e., that the
election process may have been improper because "there was
only [a] show of hands and no roll-call vote or voice record
of each person's vote") as follows:
"Although not addressed by Defendant Allen in her
motions to dismiss and to dissolve the injunctive
order or by the Board in response thereto, this
Court notes that the [Board] has alleged in its
complaint that the City Council did not follow
proper procedure at its January 22, 2007, meeting
when the vote to fill Randolph's expired term was
taken by show of hands rather than [viva] voce. It
is apparent from the [Board's] complaint that the
vote was taken by the City Council at a regular
public meeting and that the City Council members
present publicly signified the person for whom they
were voting by raising their hands, other than
Randolph, who abstained, and that the votes were
appropriately recorded. Therefore, the purpose of a
voice vote was effectively met by a show of hands as
opposed to a secret ballot in which the identity of
a person casting a vote for a particular candidate
would not be known to the public."
As to the Board's first objection to Allen's election
(i.e, that in voting for herself Allen violated the Code of
Ethics), the trial court's order of dismissal held (1) that
enforcement of the Code of Ethics is vested in the State
Ethics Commission, the attorney general, or an appropriate
1061648
The Board's postjudgment motion, which was accompanied
4
by a supporting affidavit from a member of the Board, asserts
that both Allen and Randolph attended a meeting of the Board
on July 27, 2007. The Board's motion alleged that the Board
was "unable to conduct necessary business" at its July 27,
2007, meeting because, it contended, both Allen and Randolph
asserted conflicting claims to the same position as a
director. The Board's motion requested the trial court "to
determine who is the rightful person to serve as director."
13
district attorney; and (2) that the Board therefore does not
have standing to enforce § 36-25-9(c).
Thus, the trial court's order ruled that neither of the
stated objections to Allen's election had any merit. Notably,
neither the Board nor Allen has asked us to reverse the trial
court's ruling on those issues, and we express no opinion as
to the correctness of the trial court's ruling on those
issues.
However, the Board's complaint includes the following
allegations:
"17. The Board is at a dilemma as it is only a
five (5)-member board. The next regular meeting is
set for Monday, February 19, 2007 and the issue of
who serves as director is not clear. Randolph has
served until the vacancy in his term has been duly
elected and filled. Thus far, Allen has not
attended a Board meeting and taken her seat. Allen
stated that she does not intend to attend the Board
meetings until the matter of her appointment is
clear.
The Board does not want Allen and Randolph
[4]
to attend if it is not proper for either to attend
and participate as it may affect the votes taken.
1061648
14
... If Allen's election was not proper, then
Randolph has the entitlement and the Board does not
want to be in error with him.
"....
"19. The Board needs the Court to declare who
is the proper person to serve and under what
circumstances the person would be allowed to serve."
In addition, the complaint asked the court to "adjudge and
declare the rights and responsibilities of the parties."
Thus, even if the stated objections to Allen's election
as a director have no merit, the complaint alleges that a
controversy exists between Randolph and Allen as to who is the
proper person to serve as a director on the Board. Assuming,
without deciding, that the trial court was correct in ruling
that the City Council's voting procedure was proper and that
there is no private right of enforcement for alleged
violations of the Code of Ethics, the complaint still alleges
that the Board is faced with conflicting claims by Randolph
and Allen to the same directorship.
A declaratory-judgment action is an appropriate vehicle
for resolving a dispute between claimants to an appointed or
elected position on a board. See, e.g., Watkins v. Board of
Trs. of Alabama State Univ., 703 So. 2d 335 (Ala. 1997);
1061648
15
Gilbert v. Wells, 473 So. 2d 1042 (Ala. 1985). In this case,
the board itself--rather than one of the claimants to the
position on the board--has initiated the action, but both of
the claimants were named as parties to the action (and to this
appeal). Consequently, the complaint alleges a justiciable
controversy, and the trial court erred in dismissing the
action.
Conclusion
The judgment of the trial court is reversed, and the case
is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and See, Woodall, and Parker, JJ., concur. | August 15, 2008 |
fbc0f2df-7576-4b10-8bbc-8f4eb13c5cea | Ex parte Brookwood Medical Center. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: James L. Sallas, by and through his wife and next friend Sara Sallas, et al. v. Brookwood Medical Center et al.) | N/A | 1061307 | Alabama | Alabama Supreme Court | REL: 05/23/2008
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, 2007-2008
____________________
1061307
____________________
Ex parte Brookwood Medical Center
PETITION FOR WRIT OF MANDAMUS
(In re: James L. Sallas, by and through his
wife and next friend Sara Sallas, et al.
v.
Brookwood Medical Center et al.)
(Jefferson Circuit Court, CV-05-3181)
MURDOCK, Justice.
Brookwood Medical Center ("Brookwood") seeks a writ of
mandamus directing the Jefferson Circuit Court to enter an
1061307
2
order granting separate trials in a civil action filed against
Brookwood and several fictitiously named defendants by
James L. Sallas ("Mr. Sallas"), an alleged incompetent person
suing through his wife and next friend Sara Sallas, by Sara,
individually, and by Belinda J. Helms, individually and as
executrix
of
the
estate
of
her
deceased
husband,
James Earl Helms. We grant the writ.
Facts and Procedural History
In June 2005, Sara, individually and as wife and next
friend of Mr. Sallas, and Belinda, individually and as
executrix of the estate of her deceased husband, filed a
single complaint in the Jefferson Circuit Court. The
complaint, as subsequently amended, alleged:
"4. On or about June 24, 2004 an adult male
referred
to
[as
T.B.]
was
admitted
to
the
[Brookwood] psychiatric unit with a number of
significant
diseases,
including
Intermittent-
Explosive Disorder (IED). IED is an impulse control
disorder characterized by specific episodes of
violent and aggressive behavior that may involve
harm to others. ...
"5. Between June 24, 2004 and July 22, 2004
[T.B.] engaged in a number of violent acts. For
example, on a number of occasions the nursing staff
found [T.B.] beating his head on the floor or wall.
After one such outburst, [T.B.] was taken to the
[Brookwood] emergency room where he was diagnosed
with a broken nose. Not only did [T.B.] injure
1061307
3
himself, but on a number of occasions, including,
but not limited to July 14, 2004, July 20, 2004, and
July 22, 2004, [T.B.] assaulted and battered
Brookwood staff members. Indeed, the situation
became so dangerous that on July 22, 2004, a
Petition was filed requesting that the Probate Court
of Jefferson County order the aggressor to be
committed to a state mental hospital.
"6. On or about June 16, 2004, James Earl Helms
was admitted to the geriatric floor at [Brookwood]
for
treatment
of cerebral bleeding, seizures,
vascular dementia, and depression. While on the
geriatric
floor,
Mr.
Helm's
physician
became
concerned that because of Mr. Helm's strength and
his
'friendliness'
towards
other
patients,
Mr. Helms, in his interaction with other patients,
might injure the other patients. Mr. Helms's
physician was also concerned that another patient
might take offense at Mr. Helms's 'friendliness' and
respond by injuring Mr. Helms. Mr. Helm's physician
told Mrs. Helms that her husband needed to be
admitted to the psychiatric unit for his own
protection and that he would receive one-on-one
supervision and care. Mr. Helms was admitted to the
[Brookwood] psychiatric unit ... on June 23, 2004.
"7. Sometime between June 23, 2004 and July 24,
2004, the staff at the [psychiatric] unit assigned
Mr. Helms and [T.B.] to reside in the same room. At
no time prior to July 24, 2004, did the staff inform
any family member of Mr. Helms that [T.B.] had
assaulted and battered staff members in the unit.
"8. On or about July 24, 2004, and possibly on
at least one prior occasion, [T.B.] assaulted
Mr. Helms. As a result of the assault, Mr. Helms's
left elbow, right shoulder, face, head and buttocks
were injured. [The Brookwood psychiatric-unit]
staff did not examine Mr. Helms nor did they order
any diagnostic tests to see what injuries he
suffered as a result of the assault. The staff
1061307
4
merely informed Mrs. Helms that her husband had a
slight cut on his arm that resulted from a 'little
altercation.' On July 25, 2004 Mrs. Helms visited
her husband and found that he had two black eyes.
The staff members were not able to give Mrs. Helms
an explanation.
"9. Since 1998, James Sallas suffered from
vascular Dementia and Bipolar Affective Disorder.
On or about July 21, 2004, Dr. Ed Logue, at
Mr. Sallas's request, admitted Mr. Sallas to the
psychiatric unit at Brookwood because Mr. Sallas had
homicidal
ideations.
After
[T.B.]
assaulted
Mr. Helms, on July 24, 2004, the [psychiatric-unit]
staff inexplicably assigned Mr. Sallas to [T.B.]'s
room.
"10. On or about July 25, 2004, and possibly on
prior occasions, [T.B.] also assaulted Mr. Sallas
and knocked him unconscious. As a result of the
assault, Mr. Sallas suffered numerous injuries,
including a skull fracture, a left frontal subdural
hematoma, subarachnoid hemorrhaging and a fractured
toe. The [psychiatric-unit] staff neither took
immediate
steps
to
determine
what
injuries
Mr. Sallas suffered in the attack nor did they
contact Mrs. Sallas to inform her of the assault
until after Mrs. Sallas had received a call from her
husband's physician notifying her of the assault.
"11. On or about July 27, 2004 Brookwood
discharged Mr. Helms to the Pleasant Grove Nursing
Home.
After
getting
Mr.
Helms
registered,
Mrs. Helms went to her husband's room where the
nursing home staff was helping Mr. Helms change his
clothes. As the staff attempted to undress
Mr. Helms they found that in addition to the black
eyes and elbow laceration, Mr. Helms had bruises
over his entire body. The bruising was so extensive
that the Director of Nursing at Pleasant Grove
Nursing Home refused to accept Mr. Helms for fear
that they, at a later date, might be blamed for
1061307
5
inflicting the injuries to Mr. Helms. After calling
the
emergency
room
at
Brookwood
and
making
arrangements for Mr. Helms to be returned to
Brookwood, the Director of Nursing told Mrs. Helms
that she was to take her husband back to the
emergency room for evaluation.
"12. After being examined in the emergency
room, Mr. Helms was found to have a wrist fracture
and bleeding in the brain. Mr. Helms was admitted
to the geriatric floor at Brookwood where his
condition
continued
to
decline
until
he
was
discharged to [hospice at Brookwood] and thereafter
died on August 7, 2004."
The complaint continues by stating claims alleging that
Brookwood (1) "negligently and/or wantonly provided medical
services to Mr. Sallas and Mr. Helms and negligently and/or
wantonly breached [the] acceptable standard of practice in
providing
such
medical
services,"
(2)
fraudulently
"suppressed
from the families of Messrs. Sallas and Helms the truth
concerning
[T.B.]
and
his
violent
tendencies,"
and
(3) committed the tort of outrage based on the manner in which
Brookwood conducted itself with respect to Mr. Sallas and
Mr. Helms and their families.
On July 6, 2005, Brookwood filed a "Motion to Sever
Claims," pursuant to which Brookwood sought the severance of
the Sallas claims from the Helms claims, such that there would
be "two separate actions, each case with its own civil action
1061307
6
docket number." Brookwood argued that allowing the case "to
proceed as a single action, rather than two separate actions,
will only confuse the jury and greatly prejudice [Brookwood]"
and that allowing the case "to move forward as a single action
... [would frustrate] the very purpose and intent of the
Legislature in enacting Alabama Code [1975,] § 6-5-551," which
is part of the Alabama Medical Liability Act, Ala. Code 1975,
§ 6-5-540 et seq. ("the AMLA"). The trial court conducted a
hearing on Brookwood's motion, and on July 26, 2005, it
entered an order, which states: "[Brookwood]'s pending Motion
to Sever is ... denied, but the Court defers consideration of
whether separate trials may be warranted in this case."
Brookwood has not sought relief in this Court from the trial
court's denial of its motion to sever; therefore, we do not
have before us any question regarding the propriety of the
joinder of the various claims in a single action.
In February 2007, Brookwood filed a "Motion for Separate
Trials," requesting, pursuant to Rule 42(b), Ala. R. Civ. P.,
that the trial court conduct separate trials as to the Sallas
claims and the Helms claims. Brookwood asserted that the
failure to conduct separate trials would frustrate the purpose
1061307
Whether the claims asserted by the Sallases and Belinda
1
Helms are governed by the AMLA is not an issue presented by
the petition; all parties take the position in their briefs to
this Court that they are.
7
and intent of the last sentence of § 6-5-551. Section 6-5-551
provides, in part:
"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 [AMLA] shall govern the parameters of
discovery and all aspects of the action. ... 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.) Brookwood also argued:
1
"Additionally,
while
the
claims
asserted
by
both
sets of plaintiffs are governed by the AMLA, Mr. and
Mrs. Sallas have made allegations of negligence and
wantonness, which will involve compensatory and
punitive damages, and Ms. Helms asserts a claim of
wrongful death, which will be strictly punitive in
nature. In seeking punitive damages, Mr. and
Mrs. Sallas will have to prove wantonness by clear
and convincing evidence whereas Ms. Helms will have
to prove the wrongful death claim by substantial
evidence. Thus, the plaintiffs will have different
burdens of proof. To allow Mr. and Mrs. Sallas'
claims
against
Brookwood
for
negligence
and
wantonness to be tried with Ms. Helms' claim against
Brookwood for wrongful death will only confuse the
jury and will greatly prejudice this defendant."
1061307
8
The Sallases and Belinda Helms filed a response to
Brookwood's motion for separate trials, arguing, in part,
that, rather than ordering separate trials, the trial court
could give limiting instructions to the jury concerning the
proper consideration of the evidence for each plaintiff's
claims. Brookwood replied to the plaintiffs' limiting-
instruction argument by arguing that the use of limiting
instructions would neither "resolve any non-compliance" with
§ 6-5-551 nor "rectify the prejudice that will result to
Brookwood from allowing evidence of the incident between
Mr. Sallas and [T.B.] to be admitted during the trial of
Ms. Helms' claims." Brookwood further noted that
"[h]ad the claims by each set of plaintiffs in fact
been filed as separate lawsuits, then without
question, during the trial of Ms. Helms' claims,
evidence of the incident between Mr. Sallas and
[T.B.] would not be admissible pursuant to Alabama
Code [1975,] § 6-5-551, as it is an 'other act or
omission.' By filing the instant lawsuit in behalf
of two separate sets of plaintiffs for alleged
breaches in the standard of care occurring on two
different days against a single defendant, the
plaintiffs are seeking to circumvent the express
language of Alabama Code [1975,] § 6-5-551."
In May 2007, the trial court entered an order denying
Brookwood's motion for separate trials. Among other things,
the trial court expressed its intention, in lieu of ordering
1061307
9
separate trials, to give "limiting instructions" to the jury
in relation to evidence that would not be relevant to both
sets of claims.
Brookwood then filed this petition for a writ of
mandamus. This Court stayed the trial of the case pending its
decision on Brookwood's petition.
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). A petition for a writ of mandamus is an
1061307
10
appropriate means for challenging a trial court's ruling on a
motion for separate trials. See Ex parte Skelton, 459 So. 2d
825 (Ala. 1984).
Discussion
Rule 42(b), Ala. R. Civ. P., states that the trial court
may order separate trials "in furtherance of convenience or to
avoid prejudice, or when separate trials will be conducive to
expedition and economy." As it did in the trial court,
Brookwood in its petition relies upon Rule 42(b) and § 6-5-551
to argue that the trial court exceeded its discretion when it
denied Brookwood's motion for separate trials.
In their response to Brookwood's petition, the Sallases
and Belinda Helms correctly note that the AMLA does not speak
per se to the issue of separate trials. It also is true, as
they point out, that the trial court generally has significant
discretion in deciding whether separate trials are necessary
in order to achieve the objectives expressed in Rule 42 or
whether limiting instructions to the jury would be appropriate
or sufficient. See, e.g., Ex parte R.B. Etheridge & Assocs.,
Inc., 494 So. 2d 54, 57-58 (Ala. 1986).
1061307
11
Brookwood specifically argues, however, that, as applied
to the particular claims presented in this case, § 6-5-551
necessarily removes from the trial court any discretion to
allow the introduction, in the trial of the Helms claims, of
any evidence of Brookwood's alleged wrongful acts and
omissions as to Mr. Sallas, whether with or without limiting
instructions. This argument is well-taken. If both sets of
plaintiffs are allowed to prosecute their claims in the same
trial, a violation of § 6-5-551 is unavoidable. In entering
the May 2007 order denying Brookwood's motion for separate
trials, the trial court therefore exceeded its discretion.
Accordingly, Brookwood's petition for the writ of
mandamus is granted. The trial court is directed to vacate
its May 2007 order and to enter an order providing for
separate trials.
PETITION GRANTED; WRIT ISSUED.
Woodall, Stuart, and Bolin, JJ., concur.
Lyons, J., concurs specially.
1061307
12
LYONS, Justice (concurring specially).
I concur fully in the main opinion.
The complaint filed on behalf of Mr. Helms, the first
patient alleged to suffer from being placed in proximity to
T.B., must comply with § 6-5-551, Ala. Code 1975, which
requires that "[t]he 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." Obviously, the subsequent conduct
of T.B. allegedly directed toward Mr. Sallas would not be
appropriate for inclusion in Belinda Helms's complaint, which
is limited by § 6-5-551 to "each act and omission alleged by
plaintiff to render the health care provider liable to
plaintiff."
Section 6-5-551 concludes with the following statement:
"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.) "Other" obviously refers to an act or omission other
1061307
13
than those acts or omissions alleged in the complaint. See Ex
parte Anderson, 789 So. 2d 190, 198 (Ala. 2000) ("Discovery of
any incidents of malpractice other than those specifically
alleged in the complaint is precluded."). Consequently, under
§ 6-5-551, evidence as to Mr. Sallas would not be admissible
in the trial of Belinda Helms's claim.
The trial court concluded that the portion of § 6-5-551
precluding introduction of evidence of Mr. Sallas's injury in
the trial of Belinda Helms's claim could be honored in a trial
involving both plaintiffs by the use of limiting instructions
to the jury. However, § 6-5-551 condemns introduction of
extraneous evidence at trial. The breadth of this prohibition
is ill-suited to avoid its violation by a limiting instruction
given after introduction of the condemned evidence in a trial
involving both plaintiffs. | May 23, 2008 |
a46678b2-d6c0-4523-8612-47a2e3b828de | City of Huntsville, Alabama v. Stove House 5, Inc. | N/A | 1070353 | Alabama | Alabama Supreme Court | REL: 05/30/2008
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, 2007-2008
_________________________
1070353
_________________________
City of Huntsville
v.
Stove House 5, Inc.
Appeal from Madison Circuit Court
(CV–04-240)
LYONS, Justice.
The City of Huntsville ("Huntsville"), the plaintiff in
a declaratory-judgment action, appeals from a summary judgment
in favor of Stove House 5, Inc. ("Stove House"). We affirm.
I. Facts and Procedural History
1070353
2
Huntsville experienced significant economic growth and
geographic expansion in the 1950s. In 1956 the Alabama
Legislature passed Act No. 86, the stated purpose of which was
"[t]o alter, extend, re-arrange, and re-define the boundaries
and corporate limits of the City of Huntsville, annexing
certain territory to the city, and making provision for the
assessment and collection of municipal taxes." Act No. 86,
Ala. Acts 1956 (Second Special Session). This act annexed
approximately
14,000
acres
into
Huntsville's
corporate
limits,
but also expressly excluded six tracts of land where
industries had originally located outside the corporate
limits.
These six tracts of unincorporated land became known as
"tax islands" because they are now surrounded by land that is
within Huntsville's corporate limits. Although no tax revenue
for Huntsville is generated from the tax islands because the
land is situated outside Huntsville's corporate limits,
Huntsville has provided fire and police protection and
sanitary sewer service to the tax islands since 1956. Stove
House asserts that in 1956 Huntsville and the owners of land
situated on the tax islands agreed that the tax islands would
1070353
The two other tax islands are the Mallory Plant tax
1
island and the John Blue tax island. The John Blue tax island
was annexed before this litigation began, and the Mallory
Plant tax island was not included in this litigation.
3
receive city services in exchange for the owners not opposing
the passage of Act No. 86.
From 1956 until 1991, the tax islands were outside the
corporate limits of Huntsville, but within the police
jurisdiction of Huntsville pursuant to § 11-40-10(a), Ala.
Code 1975 ("The police jurisdiction in cities having 6,000 or
more inhabitants shall cover all adjoining territory within
three miles of the corporate limits ...."). In 1991 voters
ratified Amendment No. 531 to the Alabama Constitution of 1901
(now included in Local Amendments, Madison County § 9 (Off.
Recomp.)), which effectively excluded the tax islands from the
police jurisdiction of Huntsville. Amendment No. 531
provides: "In Madison county, no police jurisdiction nor any
planning or zoning regulation of a municipality located wholly
or partially within Madison county shall extend beyond the
corporate limits of the municipality."
On January 27, 2004, Huntsville sued the owners of land
situated on the tax islands known as Martin Stove, Lincoln
Mill, Lowe Mill, and Merrimack Mill ("the landowners"),1
1070353
4
seeking a judgment declaring that Huntsville has no duty under
Alabama law to continue providing city services, namely fire
and police protection and sanitary sewer services, to these
landowners. Huntsville further sought a declaration that
because, it says, it has no duty to provide such city services
to the landowners, it could lawfully cease providing such
services to the landowners. Huntsville named the following
individuals and entities as defendants: Reliance Agents, Inc.;
John H. Ebaugh; Marguerite W. Ebaugh; Robin Ebaugh; Lowe Mill
Properties, LLC; Storage Equities; PS Partners VI, Ltd.; and
Stove House.
Huntsville voluntary dismissed the action as it related
to Storage Equities and PS Partners VI, Ltd., after Huntsville
annexed land on the tax island known as Merrimack Mill.
Huntsville and the Ebaughs jointly moved in the trial court
for the entry of a consent judgment evidencing their
settlement, which provided, in part, that Huntsville would
annex land on the tax island known as Lincoln Mill. The trial
court granted the motion and entered the consent judgment.
Huntsville and Lowe Mill Properties jointly stipulated to the
dismissal of the action as it related to Lowe Mill Properties,
1070353
Stove House did not assert the affirmative defense of
2
laches in its answer to Huntsville's complaint; therefore,
the defense would ordinarily be deemed to have been waived.
See Wallace v. Alabama Ass'n of Classified Sch. Employees, 463
So. 2d 135, 137 (Ala. 1984) (quoting Funding Sys. Leasing
Corp. v. Pugh, 530 F.2d 91, 96 (5th Cir. 1976) ("a defendant
'cannot revive [the waived affirmative defense] in a
memorandum in support of a motion for summary judgment'")).
However, the defense is not waived here because Stove House
raised the defense of laches in its summary-judgment motion
without objection from Huntsville. Huntsville even addressed
the merits of the defense in its brief in opposition to Stove
House's summary-judgment motion. See Smith v. Sushka, 117
F.3d 965, 969 (6th Cir. 1997) ("Failure to raise an
affirmative defense by responsive pleading does not always
result in waiver. The purpose of Rule 8(c) of the Federal
Rules of Civil Procedure is to give the opposing party notice
of the affirmative defense and a chance to respond." (internal
citation omitted)); Alexander v. Consumers Illinois Water Co.,
358 Ill. App. 3d 774, 780, 838 N.E. 2d 963, 968, 298 Ill. Dec.
70, 76 (2005) ("an affirmative defense is not waived, despite
the fact that it was not raised in an answer to a complaint,
if the defense is subsequently raised without objection in a
motion for summary judgment").
5
and the trial court dismissed the action as to Lowe Mill
Properties without prejudice. Reliance Agents, Inc., and
Stove House were the remaining defendants.
Stove House and Huntsville each moved for a summary
judgment. Stove House asserted two alternative bases for its
summary-judgment motion. Stove House first contended that the
doctrine of laches bars Huntsville's declaratory-judgment
2
action because, it argued, Huntsville's lengthy delay in
filing the action has prejudiced it. Stove House specifically
1070353
6
argued that because more than 50 years had passed since
Huntsville agreed to provide city services to the landowners
it was impossible to identify witnesses who had knowledge of
the creation of the tax islands in 1956 and of any agreements
between Huntsville and the landowners.
As an alternative basis for summary judgment, Stove House
contended that Huntsville had agreed in 1956 to provide city
services to the tax islands and that that agreement still
exists. Stove House asserted that Huntsville had admitted the
existence of an agreement between Huntsville and the
landowners and that Huntsville's course of performance over
the last 50 years evidences its intent to provide city
services to the landowners. Stove House then stated, in its
brief in support of its motion for a summary judgment:
"To further bolster this contract, the law of
Alabama
has
established
that
'a
municipal
corporation may be held liable on an implied
contract' whether implied from corporate acts or
implied
by
law,
especially
'to
prevent
the
municipality from enriching itself by accepting and
retaining benefits without paying just compensation
therefor.' Bethune v. City of Mountain Brook, [293
Ala. 89,] 300 So. 2d 350 (Ala. 1974), also citing
Gresson Mfg. Co. v. County Bd. of Ed., [217 Ala.
565,] 117 So. 163 (Ala. 1928)[.] [Huntsville] was
greatly enriched by annexation of 21 ½ square miles
without vote of those affected. The benefits to
1070353
7
[Huntsville] continue to this day, as does [its]
obligation under the Agreement."
(Emphasis added.)
In its brief in opposition to Stove House's summary-
judgment motion, Huntsville contended that all Stove House's
arguments "fall flat" because, it said, there is no formal
contract between Huntsville and the landowners. Huntsville
contended that controlling caselaw plainly states that a
municipality has no duty to provide municipal services outside
its corporate boundaries in the absence of a formal contract.
See City of Attalla v. Dean Sausage, Inc., 889 So. 2d 570
(Ala. Civ. App. 2003). Huntsville further noted that § 11-47-
5, Ala. Code 1975, provides that "[c]ontracts entered into by
a municipality shall be in writing" and that there is no
evidence indicating that a written contract between Huntsville
and the landowners exists. Similarly, in its summary-judgment
motion Huntsville argued that it lacks any duty under Alabama
law to continue providing city services to the tax islands and
that, therefore, Huntsville can lawfully cease providing city
services to the tax islands.
The trial court denied Huntsville's motion for a summary
judgment, granted Stove House's motion for a summary judgment,
1070353
8
and entered a summary judgment in favor of Stove House. The
trial court in its order did not provide any rationale for its
decision. Huntsville then filed a motion to amend, alter, or
vacate the judgment pursuant to Rule 59(e), Ala. R. Civ. P.,
and a motion to strike certain evidentiary material submitted
by Stove House in opposition to Huntsville's motion for a
summary judgment. The trial court denied both motions.
Huntsville and Reliance Agents, Inc., then jointly
stipulated to the dismissal of Huntsville's claims against
Reliance Agents, Inc. The trial court dismissed the action as
it related to Reliance Agents without prejudice. Huntsville
then appealed to this Court. Stove House is the only
remaining defendant and the only appellee.
II. Standard of Review
The standard by which this Court will review a ruling on
a motion for summary judgment is well established:
"'The principles of law applicable to
a motion for summary judgment are well
settled. To grant such a motion, the trial
court must determine that the evidence does
not create a genuine issue 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. When the movant
makes a prima facie showing that those two
conditions are satisfied, the burden shifts
1070353
9
to the nonmovant to present "substantial
evidence" creating a genuine issue of
material fact. Bass v. SouthTrust Bank of
Baldwin County, 538 So. 2d 794, 797-98
(Ala. 1989); § 12-21-12(d)[,] Ala. Code
1975. 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."
West v. Founders Life Assur. Co. of
Florida, 547 So. 2d 870, 871 (Ala. 1989).
"'In our review of a summary judgment,
we apply the same standard as the trial
court. Ex parte Lumpkin, 702 So. 2d 462,
465 (Ala. 1997). Our review is subject to
the caveat that we 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 (Ala.
1990).'"
Payton v. Monsanto Co., 801 So. 2d 829, 832-33 (Ala. 2001)
(quoting Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d 182, 184
(Ala. 1999)).
III. Analysis
Huntsville argues that the trial court improperly entered
a summary judgment for Stove House because, it contends,
settled Alabama law provides that when a municipality does not
collect taxes from the owners of property outside the
municipality's corporate limits, the municipality is not
1070353
10
required to provide city services to these owners. Huntsville
relies heavily on the Court of Civil Appeals' holding in Dean
Sausage, that "any municipal services being provided in a
police jurisdiction without a formal contract or agreement
'"may be prospectively altered in scope or terminated, after
appropriate prior public notice."'" 889 So. 2d at 570
(quoting City of Prattville v. Joyner, 698 So. 2d 122, 125
(Ala. 1997) ("Joyner") quoting in turn the amicus brief of the
attorney general) (emphasis added). Simply, Huntsville
contends that it has no duty to provide city services to
nonresident landowners such as Stove House because, it says,
there is no evidence indicating that Huntsville agreed,
pursuant to a formal contract, to provide these services.
Huntsville further contends that absent a formal contract
between it and the landowners, neither equitable estoppel nor
any other equitable principles prevent it from terminating
city services to the tax islands. First, Huntsville notes
that this Court has repeatedly held that "'[e]quitable
estoppel is to be applied against a governmentality only with
extreme caution or under exceptional circumstances.'" Joyner,
698 So. 2d at 126 (quoting State Highway Dep't v. Headrick
1070353
11
Outdoor Adver., Inc., 594 So. 2d 1202, 1204 (Ala. 1992).
Huntsville further notes that in Dean Sausage the Court of
Civil Appeals construed the holding in Joyner to be based on
the
rationale
that
"residents
in
a
municipal
police
jurisdiction acquire no vested interest or entitlement to the
continued provision of municipal services by reliance or
estoppel." 889 So. 2d at 570. In accordance with Joyner and
Dean Sausage, Huntsville contends that it is not estopped from
terminating city services to the landowners because, as
nonresidents of Huntsville, the landowners do not have a
vested interest in the provision of the city services.
Huntsville also argues that the doctrine of laches is
inapplicable to this case because, it says, Stove House cannot
show that it was disadvantaged, harmed, or prejudiced by the
passage of time. Huntsville relies on Touchstone v. Peterson,
443 So. 2d 1219, 1226 (Ala. 1983), in which this Court stated:
"To be affected by laches, the delay must have been
with notice of the existence of the right, resulting
in disadvantage, harm, or prejudice to another, or
have operated to bring about changes in conditions
and circumstances so that there can no longer be a
safe determination of the controversy."
Huntsville further contends that the doctrine of laches is
irrelevant because, it says, there is no evidence indicating
1070353
12
that a formal contract between Huntsville and the landowners
exists and under the authority of Dean Sausage, absent a
formal contract, it may terminate city services to the tax
islands. In other words, Huntsville asserts that even if it
had brought this action 50 years earlier, there still would
not have been any evidence of a formal contract between
Huntsville and the landowners. Lastly, Huntsville notes that
the underlying concept behind the doctrine of laches and
equitable estoppel are the same -– that one party's delay in
asserting rights cannot be allowed to prejudice another party
-- and because Dean Sausage held that equitable estoppel
cannot prevent a municipality from terminating city services
to
nonresidents,
the
doctrine
of
laches
is
likewise
inapplicable to nonresidents.
Stove House argues that the trial court properly entered
a summary judgment in its favor because, it says, the oral
agreement between Huntsville and the landowners is enforceable
under the implied-contract theory set out in Bethune v. City
of Mountain Brook, 293 Ala. 89, 300 So. 2d 350 (1974). Stove
House
also
asserts
that
this
Court
cannot
consider
Huntsville's arguments as to why the implied-contract theory
1070353
13
should not apply because, it says, Huntsville failed to
present these arguments in the trial court. Stove House
further contends that, to the extent the trial court may have
relied upon the doctrines of equitable estoppel and laches,
the trial court properly entered a summary judgment in its
favor.
Because affirmative defenses are threshold issues, we
must determine the applicability of the doctrines of equitable
estoppel and laches before we address the merits of whether
Huntsville has a duty to provide city services to the tax
islands and whether it may terminate those services. First,
we conclude that equitable estoppel does not prevent
Huntsville from terminating city services to the landowners
because the landowners have no vested rights to city services.
See Dean Sausage, 889 So. 2d at 570 (quoting Joyner, 698 So.
2d at 125). We also conclude that laches should not be
applied against Huntsville because the defense should not be
applied against municipalities. In King v. Campbell, [Ms.
1060804 Nov. 30, 2007] __ So. 2d __(Ala. 2007), this Court
quoted from Greenwood v. State ex rel. Bailes, 230 Ala. 405,
407, 161 So. 498, 499 (1935), as follows:
1070353
14
"'Reduced to the last analysis, the defense
sought to be interposed is in the nature of an
estoppel. But this court in State ex rel. Lott v.
Brewer, 64 Ala. 287, [298 (1879),] declared that
estoppels against the state cannot be favored, and
that though they may arise in some instances, yet,
upon the broad ground of public policy, they cannot
arise, certainly as to the exercise of governmental
functions, "from the laches of its officers."'"
This Court has applied this rule to the actions of municipal
officials. See State v. City of Gadsden, 216 Ala. 243, 113
So. 6 (1927). We therefore reject Stove House's defense of
laches. Moreover, Stove House's defense of laches based upon
failing memories as to the terms of the oral agreement is
inherently inconsistent with Stove House's alternative theory
of the existence of an implied contract.
We now turn to Stove House's alternative contention that
an implied contract exists between Huntsville and the
landowners. In its brief to this Court Huntsville asserts
that Stove House may attempt to argue that Bethune allows a
party seeking to enforce an oral agreement with a municipality
to succeed on an implied-contract theory, even though § 11-47-
5 provides that "[c]ontracts entered into by a municipality
shall be in writing, signed and executed in the name of the
city or town by the officers authorized to make the same and
1070353
15
by the party contracting." Huntsville then attempts to
distinguish Bethune from the present case. Huntsville
concludes that any alleged oral agreement between Huntsville
and the landowners remains executory in nature, that Bethune
is distinguishable because it did not deal with an executory
contract, and that, therefore, any implied contract in the
present case is unenforceable.
Stove House responds by first contending that this Court
cannot
consider
Huntsville's
arguments
attempting
to
distinguish Bethune because, it asserts, those arguments are
raised for the first time on appeal. Stove House asserts that
Huntsville so heavily relied upon the Court of Civil Appeals'
holding in Dean Sausage that it failed to provide the trial
court with any reason why the law of implied contract set out
in Bethune, and clearly argued by Stove House in its brief in
support of its summary-judgment motion, should not apply.
Stove House then notes the well-established law that "[t]his
Court cannot put a trial court in error for failing to
consider evidence or accept arguments that, according to the
record, were not presented to it." Gotlieb v. Collat, 567 So.
2d 1302, 1304 (Ala. 1990).
1070353
16
As previously noted, Stove House, in its motion for a
summary judgment, quoted Bethune, 300 So. 2d at 352, for the
proposition that a "municipal corporation may be held liable
on an implied contract." Although Huntsville's brief in
opposition to Stove House's summary-judgment motion noted that
Stove House alluded to an implied agreement between the
parties, Huntsville wholly failed to rebut Stove House's
assertion of the applicability of the implied-contract theory
or to distinguish this case from Bethune. Simply stated,
Huntsville made no mention of Bethune, a decision of this
Court, in the trial court. Huntsville stated only that
"the appellate court [the Court of Civil Appeals] in
Dean Sausage spoke in terms of a 'formal contract or
agreement,' not an implied contract or an uncertain
agreement
or
understanding.
Because
it
is
undisputable that there is no formal contract for the
provision of municipal services to tax islands,
[Huntsville] has no duty to provide same to the tax
islands."
Stove House attached exhibits to its motion for a summary
judgment indicating that Huntsville had provided city services
to the landowners since 1956 and that it was doing so pursuant
to an oral agreement entered into by Huntsville and the
landowners. Huntsville's brief in opposition to Stove House's
summary-judgment motion asserted that Stove House had offered
1070353
17
no evidence of an implied agreement. Huntsville there
asserted
that
the
previous
and
current
attorneys
for
Huntsville "have no knowledge of any contract at all between
the owners of the tax islands and [Huntsville]." In its
principal brief before this Court, Huntsville notes that the
city attorney acknowledged the existence of "an informal
understanding
between
the
original
manufacturers
and
industrialists located on the tax islands at the time of their
formation and [Huntsville] in or around the time of the
annexation in 1956." Huntsville's brief at p. 42 (emphasis in
original). This Court recognizes that "[a]n implied contract
arises where there are circumstances which, according to the
ordinary course of dealing and common understanding, show a
mutual intent to contract ...." Broyles v. Brown Eng'g Co.,
275 Ala. 35, 38, 151 So. 2d 767, 770 (1963). The materiality
of factual disputes as to the terms of any implied contract
between
Huntsville
and
the
landowners
turns
on
the
availability
to
Huntsville
of
arguments
that
support
distinguishing Bethune.
Huntsville's motion to alter, amend, or vacate the trial
court's order entering a summary judgment for Stove House and
1070353
18
denying its motion for a summary judgment also failed to
address Stove House's argument that a municipality may enter
into
an
implied
contract.
Huntsville
reiterated
its
contention that, absent a formal contract, it owed no duty to
the landowners to provide them city services and further
contended that the trial court erred to the extent it might
have relied upon the minutes of the Huntsville City Council
meetings as evidence of an agreement obligating Huntsville to
provide the landowners city services. Once again, Huntsville
failed to address the import of this Court's decision in
Bethune.
Huntsville contends that Stove House's treatment of
Bethune in the trial court was confined to a single sentence.
We previously quoted that sentence; suffice it so say that its
brevity does not deprive it of clarity. It unquestionably
afforded the trial court enough information to permit it to
base a decision on an implied contract. Further, Bethune's
problems for the position taken by Huntsville are neither
subtle nor abstract. In Bethune this Court noted the
predecessor
to
§
11-47-5,
strenuously
relied
upon
by
Huntsville in the trial court and providing that "contracts
1070353
19
entered into by a municipality shall be in writing, signed and
executed in the name of the city or town," but then stated
that "[w]e cannot accept the City's argument that any
agreement made by a city which are [sic] not in writing are
[sic] void." 293 Ala. at 93, 300 So. 2d at 352.
Huntsville further attempts to excuse its disregard of the
well-established law that an appellant may present this Court
only with arguments that it presented to the trial court.
Huntsville states:
"[Huntsville] would have never discussed [in its
principal brief to this Court] whether any alleged
contract between it and the former owners of the tax
islands was executory if Stove House had not raised
the implied-contract defense in Bethune in the trial
court in the first place. As such, it would be
fundamentally unfair to hold that [Huntsville] is
procedurally barred from arguing that Stove House's
implied-contract defense does not apply. Not only
was
this
defense,
in
actuality,
given
little
attention by Stove House at the trial court level,
but [Huntsville] has no idea whether the trial court
actually relied upon this defense in ruling in Stove
House's favor because the summary-judgment order
contains no rationale."
Huntsville's reply brief at p. 29 (citations to the record
omitted).
Huntsville thus argues that it raised the Bethune issue
in its principal brief before this Court only because Stove
1070353
20
House had raised it in the trial court. However, it is
fundamentally unfair to reverse the judgment of the trial
court by distinguishing Bethune as Huntsville, for the first
time on appeal, argues we should do. "[T]he appellate court
can consider an argument against the validity of a summary
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); see also Andrews v. Merritt Oil Co.,
612 So. 2d 409, 410 (Ala. 1992) ("This Court cannot consider
arguments raised for the first time on appeal; rather, our
review is restricted to the evidence and arguments considered
by the trial court."). Because Huntsville made no attempt to
distinguish Bethune before the trial court, it is now
precluded from seeking reversal of the summary judgment on its
theory that Bethune is inapplicable, and we must affirm. We,
of course, express no opinion on the merits of the question
whether
Bethune
is
distinguishable
on
the
facts
here
presented.
IV. Conclusion
1070353
21
We affirm the trial court's summary judgment in favor of
Stove House.
AFFIRMED.
See, Woodall, Stuart, Smith, and Bolin, JJ., concur.
Parker and Murdock, JJ., concur in the result.
Cobb, C.J., dissents.
1070353
22
COBB, Chief Justice (dissenting).
I respectfully dissent. This case involves "tax islands"
in which the businesses and residents located therein have
received services from the City of Huntsville without cost for
more than 50 years, all without benefit of any written
agreement. The gist of the majority's opinion that Huntsville
is nonetheless bound to continue its service to the tax island
in question is based upon its conclusion that Huntsville
failed to advocate to the trial court that the case of Bethune
v. City of Mountain Brook, 293 Ala. 89, 300 So. 2d 350 (1974),
is distinguishable. This is not a situation in which the
legal rationale of Bethune was not presented to the trial
court. Rather, the majority holds that because Huntsville did
not advocate that the rationale of Bethune was inapplicable to
its situation, the judgment of the trial court may not be
reversed based on the trial court's failure to discern that
fact for itself. If the majority opinion is properly regarded
by this Court as precedent, it would seem that henceforth this
Court may not reverse summary judgment when the trial court
had misapplied the rationale of an appellate opinion to reach
1070353
23
its conclusion and the nonmovant fails to demonstrate that it
has argued that misapplication to the trial court.
For example, consider a case where a plaintiff sues a
defendant
chemical
company
for
damage
caused
by
the
plaintiff's contact with chemicals manufactured by the
company, and the company moves for a summary judgment based on
the statute of limitations because, under Garrett v. Raytheon
Co., 368 So. 2d 516 (Ala. 1979), the period between the date
of the plaintiff's last exposure and the date of filing the
action exceeded the limitations period. If the trial court
enters a summary judgment for the defendant and the plaintiff
cannot show that it argued that Garrett has no application
because this Court overruled it in Griffin v. Unocal Corp.,
[Ms. 1061214, Jan. 25, 2008] ___ So. 2d ___ (Ala. 2008), the
rationale of the majority opinion suggests that this Court
must nonetheless affirm the summary judgment. That rationale
is wrong.
I believe that the majority's reliance here on the well-
settled rule that this Court will not reverse a judgment of a
trial court on an issue not first presented to the trial
court, see Ex parte Ryals, 773 So. 2d 1011, 1013 (Ala. 2000),
1070353
24
and Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala.
1992), is based upon a false premise. In fact, the issue
before the trial court, presented by Stove House, was whether
Bethune warranted a holding that an implied contract for
services existed between Huntsville and Stove House as a
matter of law. Accordingly, I believe that it is well within
the province of this Court to examine the applicability of
Bethune to the facts presented here. Our law is well settled
that the trial court is presumed to know the law, a concept
that surely includes the trial court's correct application of
caselaw. Ex parte Atchley, 936 So. 2d 513 (Ala. 2006),
Apicella v. State, 945 So. 2d 485, (Ala. Crim. App 2006), and
Carter v. Carter, 666 So. 2d 28 (Ala. Civ. App. 1995). The
issue presented by Bethune, i.e., whether there were facts to
show an implied contract between Stove House and Huntsville as
a matter of law, was presented to the trial court, and it is
this Court's responsibility to consider whether the trial
court reached the correct result. That is, it is also settled
law that this Court reviews the trial court's decisions on
questions of law de novo, and it is this Court's obligation as
an appellate court to undertake that review. Board of Trs. of
1070353
25
Univ. of Alabama v. American Res. Ins. Co., [Ms. 1061492, May
2, 2008] ___ So. 2d ___ (Ala. 2008), Special Assets, L.L.C. v.
Chase Home Fin., L.L.C., [Ms. 1060083, Dec. 21, 2007] ___ So.
2d ___ (Ala. 2007), and Pinkerton Sec. & Investigation Servs.,
Inc. v. Chamblee, 961 So. 2d 97 (Ala. 2006).
Finally, I note that this case ultimately represents a
waste of both judicial resources and the resources of the
parties. For all that appears in the opinion, Huntsville may
simply refile its action for a judgment declaring that it is
not obligated to provide further city services to Stove House
and this time argue the inapplicability of Bethune. The
majority opinion achieves neither justice nor economy. | May 30, 2008 |
cb799a01-520c-4e61-ac0b-f5b67b8e6a5a | Ex parte Alabama Department of Finance. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: GTSI Corp. v. Alabama Department of Finance) | N/A | 1061639 | Alabama | Alabama Supreme Court | REL: 04/11/08
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, 2007-2008
____________________
1061639
____________________
Ex parte Alabama Department of Finance
PETITION FOR WRIT OF MANDAMUS
(In re: GTSI Corp.
v.
Alabama Department of Finance)
(Madison Circuit Court, CV-06-2530)
MURDOCK, Justice.
The Alabama Department of Finance ("the Department")
petitions this Court for a writ of mandamus instructing the
1061639
2
Madison Circuit Court to grant its motion to dismiss or, in
the alternative, for a summary judgment, or, failing that, to
grant its motion to transfer the case to the Montgomery
Circuit Court. For the reasons stated herein, we grant the
petition and instruct the trial court to dismiss the
Department from the case.
I. Factual and Procedural Background
On July 22, 2005, the Department issued an invitation to
bid for the purchase of an "Enterprise Storage Solution" and
related equipment, software,
and
services.
Following
submission of bids, the contract was awarded to GTSI Corp.
("GTSI") on August 31, 2005.
GTSI shipped the purchased equipment to the Department in
Montgomery. GTSI then arranged for one of the items delivered
to the Department, the StorEdge 9985, to be shipped from
Montgomery
to
the
Alabama
Supercomputer
Authority
in
Huntsville. At some point, either during shipment to or
unloading at Huntsville, the StorEdge 9985 was damaged to such
an extent that it was rendered unusable. Because of this
damage, the Department refused to pay for the StorEdge 9985.
In response, GTSI filed a petition for a writ of mandamus in
1061639
3
the Madison Circuit Court, seeking an order from that court
requiring the Department to pay for the StorEdge 9985.
On February 1, 2007, the Department filed in the Madison
Circuit Court a motion to dismiss or, in the alternative, for
a summary judgment, arguing that the Department was entitled
to sovereign immunity. On February 2, 2007, the Department
filed a motion to transfer the case to the Montgomery Circuit
Court, arguing that actions against State agencies must be
filed in Montgomery County. On July 6, 2007, the trial court
entered an order, stating, in part:
"This cause came before the Court on the 7th day
of June, 2007, for a hearing on all pending motions.
Having considered the pleadings, the responses and
briefs
thereto,
and
the
arguments
and
representations of counsel, and after careful review
of all relevant and applicable law, it is ORDERED,
ADJUDGED and DECREED as follows:
"1.
The defendant's Motion to Transfer Venue is
denied.
"....
"3.
Within sixty (60) days, the parties shall
concur and submit a joint scheduling order
for entry by this Court.
"4.
This matter is hereby set for trial on the
5th day of May, 2008, at 9:30 a.m. in
Courtroom
#6
of
the
Madison
County
Courthouse."
1061639
4
Although the trial court's order did not explicitly reference
the motion to dismiss or, in the alternative, for a summary
judgment, we will treat that motion as having been denied,
given that the trial court's order indicated that the motion
was considered, that it was not granted, that the parties were
ordered to submit a scheduling order, and that the case was
set for trial.
On July 24, 2007, GTSI amended its mandamus petition by
adding as a respondent James Allen Main in his capacity as the
State Finance Director and director of the Department. On
August 17, 2007, the Department filed the presently pending
petition for a writ of mandamus with this Court. The relief
sought therein relates to the Department only; Main did not
join the petition, and no relief is sought on his behalf.
II. Standard of Review
In Ex parte Branch, [Ms. 1051783, September 7, 2007] __
So. 2d __ (Ala. 2007), this Court stated:
"The denial of a motion for a summary judgment
or of a motion to dismiss grounded on immunity is
reviewable by a petition for a writ of mandamus. Ex
parte Rizk, 791 So. 2d 911, 912 (Ala. 2000). Ex
parte Haralson, 853 So. 2d 928, 931 n.2 (Ala. 2003)
('The denial of a motion to dismiss or a motion for
a summary judgment generally is not reviewable by a
petition for writ of mandamus, subject to certain
1061639
5
narrow exceptions, such as the issue of immunity.
Ex parte Liberty Nat'l Life Ins. Co., 825 So. 2d
758, 761-62 (Ala. 2002).'). This Court has stated:
"'A writ of mandamus is an extraordinary
remedy available only when there is: "(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).'
"Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003)."
__ So. 2d at __.
III. Analysis
The Department contends that it is entitled to the
sovereign
immunity
conferred
on
the
State
by
§
14,
Constitution of Alabama 1901, and, as a result, that the trial
court should have granted its motion to dismiss or, in the
alternative, for a summary judgment. We agree.
Section 14 provides "[t]hat the State of Alabama shall
never be made a defendant in any court of law or equity."
"Under § 14, the State and its agencies are absolutely immune
from suit." Lyons v. River Road Constr., Inc., 858 So. 2d
257, 261 (Ala. 2003). The Department is an agency of the
1061639
6
State, see Ala. Code 1975, § 41-4-1 et seq., and, therefore,
it is entitled to sovereign immunity.
GTSI argues that, notwithstanding sovereign immunity, an
agency of the State is subject to suit for the payment of
goods and services it has accepted under a contract. GTSI
argues that, under the circumstances present in this case, it
"may properly pursue its claims through a Petition for the
Writ of Mandamus against the Department of Finance," and that
"the doctrine of sovereign immunity is not a defense to the
Petition brought by GTSI."
GTSI is correct when it argues that certain actions are
not barred by § 14. There are six general categories of
actions that do not come within the prohibition of § 14: (1)
actions brought to compel State officials to perform their
legal duties; (2) actions brought to enjoin State officials
from enforcing an unconstitutional law; (3) actions to compel
State officials to perform ministerial acts; (4) actions
brought against State officials
under
the
Declaratory
Judgments Act, Ala. Code 1975, § 6-6-220 et seq., seeking
construction of a statute and its application in a given
situation; (5) valid inverse condemnation actions brought
1061639
7
against State officials in their representative capacity; and
(6) actions for injunction or damages brought against State
officials in their representative capacity and individually
where it was alleged that they had acted fraudulently, in bad
faith, beyond their authority, or in a mistaken interpretation
of law. See Drummond Co. v. Alabama Dep't of Transp., 937 So.
2d 56, 58 (Ala. 2006) (quoting Ex parte Carter, 395 So. 2d 65,
68 (Ala. 1980)); Alabama Dep't of Transp. v. Harbert Int'l,
Inc., [Ms. 1050271, Mar. 7, 2008] __ So. 2d __ (Ala. 2008)
(holding that the exception for declaratory-judgment actions
applies only to actions against State officials). As we
confirmed in Harbert, these "exceptions" to sovereign immunity
apply only to actions brought against State officials; they do
not apply to actions against the State or against State
agencies. See Alabama Dep't of Transp., __ So. 2d at __.
Actions against the State or against State agencies are
absolutely barred by § 14. As a result, the Department is
entitled to the relief it seeks from this Court in the form of
an order directing the trial court to dismiss it from this
action.
IV. Conclusion
1061639
8
Based on the foregoing, we grant the Department's
petition. The trial court is instructed to dismiss the
Department from the action. The alternative relief sought by
the Department -- to have the action transferred to the
Montgomery Circuit Court -- is rendered moot by our decision
on the sovereign-immunity issue. In addition, GTSI filed a
motion to strike certain portions of the Department's mandamus
petition. In response, the Department candidly agreed that
the portions of its petition to which GTSI objected were due
to be stricken. Thus, we grant GTSI's motion.
MOTION TO STRIKE GRANTED; PETITION GRANTED; WRIT ISSUED.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur. | April 11, 2008 |
411749aa-ea88-40e7-8d0e-1bf5c8a6afc0 | Ex parte Roy Duncan and Air Flow Awning Company, Inc. PETITIONFOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Roy Duncan and Air Flow Awning Company, Inc. v. City of Montgomery et al.) | N/A | 1061393 | Alabama | Alabama Supreme Court | rel: 04/11/2008
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, 2007-2008
_________________________
1061393
_________________________
Ex parte Roy Duncan and Air Flow Awning Company, Inc.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Roy Duncan and Air Flow Awning Company, Inc.
v.
City of Montgomery et al.)
(Montgomery Circuit Court, CV-05-1628;
Court of Civil Appeals, 2060198)
1061393
2
COBB, Chief Justice.
On August 15, 2007, this Court granted the joint petition
for a writ of certiorari filed by Roy Duncan and Air Flow
Awning Company, Inc. ("Air Flow"), to review the no-opinion
affirmance by the Court of Civil Appeals of the trial court's
summary judgment in favor of the City of Montgomery ("the
City"). Duncan v. City of Montgomery (No. 2060198, June 15,
2007), ____ So. 2d. ____ (Ala. Civ. App. 2007)(table). We
reverse and remand.
Facts
Duncan and Air Flow Awning Company, of which Duncan is
the chief executive officer, began replacing the original
wooden windows in a house in the Old Cloverdale historic
district in the City with vinyl windows manufactured by Air
Flow. (Duncan and Air Flow are hereinafter referred to
collectively as "Duncan.") Duncan did not apply for a
building permit or get approval for replacing the wooden
windows with vinyl windows from those governmental entities
vested with the responsibility of preserving the historic,
aesthetic, and cultural qualities of the City's designated
historic districts.
1061393
The record does not identify the person or governmental
1
entity who ordered Duncan to stop the installation.
3
A resident of Old Cloverdale whose name is not revealed
in the record complained to the City about "changes being
made" to the exterior of a neighbor's house, the house at
which Duncan was replacing the windows. The City investigated
the complaint and discovered that three of the original wooden
windows on the house had been replaced with vinyl windows.
Duncan was ordered to stop the installation of the vinyl
windows until he procured approval for the project from the
Architectural Review Board for the City ("the Board").
1
The Board reviews and then either approves or disapproves
homeowners' repair, restoration, and improvement projects in
the historic districts in the City, with the goal of
"carry[ing] out the purposes and responsibilities" of
Municipal Ordinance 28-2004. See Ala. Code 1975, § 11-68-2.
Municipal Ordinance 28-2004 was enacted for the purpose of
protecting,
preserving,
and
rehabilitating
"historic
properties and the historic, cultural, and aesthetic heritage
of the City." Municipal Ordinance 28-2004 provides that "no
change in the exterior appearance of ... any building,
1061393
4
structure, or site within a Historic District may be made ...
unless and until a certificate of appropriateness for such
change, erection or demolition is approved by the Board."
After being told that a certificate of appropriateness
was required before the installation of the windows could
proceed, Duncan submitted to the Board an "[a]pplication for
review of construction in a historic district." The
application is dated May 2, 2005. On the application, Duncan
described the work to be done as "remov[ing] wood windows
[and] replac[ing] with white vinyl welded multi-light
windows."
On May 24, 2005, the Board held a meeting at which it
reviewed and rejected Duncan's application. The Board
informed Duncan of its decision in a letter dated May 31,
2005, which stated:
"[T]he Board denied this request as presented since
vinyl windows are not in compliance with the
[Board's] guidelines for historic districts. It is
the recommendations of the Board to replace all
vinyl windows with original materials and resubmit
details to the Board for review within six months.
Furthermore the [Board] requests a review of this
property in six months if [Duncan] has not replaced
the
vinyl
windows
installed
without
[Board]
approval, to remediate the situation."
1061393
5
On June 30, 2005, Duncan filed in the Montgomery Circuit
Court an "Appeal of Final Decision of the Architectural Review
Board of the City of Montgomery and Complaint." Duncan named
as
defendants
the City, the Board,
and Montgomery's Historical
Preservation Commission (the City, the Board, and the
Commission are hereinafter referred to collectively as "the
defendants"). In addition to his appeal, Duncan's complaint
contained an application for a preliminary injunction, a
request for a declaratory judgment, and a claim based on
negligence.
The defendants filed a motion for a summary judgment on
Duncan's claims. The defendants argued that they were
entitled
to
a
summary
judgment
because,
they argued, replacing
the wooden windows with vinyl ones constituted a "change or
alteration to the exterior of the residence" and, therefore,
according to the defendants, under Municipal Ordinance 28-
2004, Duncan was required to obtain a certificate of
appropriateness from the Board before replacing the wooden
windows. Further, the defendants interpret the Board's
guidelines to authorize the Board to prohibit vinyl windows
in the City's historic districts; therefore, according to the
1061393
6
defendants,
the
Board
properly
denied
Duncan's
application
for
a certificate. In addition, the defendants argued that Duncan
could not maintain a negligence claim because, they argued,
the City does not owe Duncan a duty to permit him to do
anything unlawful, and, according to the defendants, vinyl
windows are unlawful "changes to [the] exterior [of]
buildings" that are not allowed without the Board's approval.
Further,
according
to
the
defendants,
Duncan
was
contributorily negligent and assumed the risk of incurring
damages by unlawfully beginning the installation of the vinyl
windows
without
applying
for
a
certificate
of
appropriateness.
In response to the defendants' summary-judgment motion,
Duncan argued that the vinyl windows do not constitute a
"change in the exterior appearance" of the house as that term
is used in Municipal Ordinance 28-2004, and, therefore, that
the ordinance did not require him to obtain a certificate of
appropriateness before installing the vinyl windows. Duncan
submitted photographs in support of his argument. Although
Duncan did not submit an authenticating affidavit with the
photographs,
none
of
the defendants
objected
to
the submission
of the photographs, and none of the defendants moved to strike
1061393
7
them. Duncan further argued in opposition to the summary-
judgment motion that the vinyl windows were not expressly
prohibited by the written guidelines of the Board and,
therefore, according to Duncan, the Board could not lawfully
stop him from replacing the wooden windows with vinyl ones.
The trial court held a hearing on the defendants'
summary-judgment
motion.
During
that
hearing,
the
trial
court
stated that from the evidence presented it could not tell the
difference between the vinyl and wooden windows. At the
conclusion of the hearing, however, the trial court granted
the City's motion for a summary judgment. Subsequently, the
trial court entered a summary judgment for all the defendants
on all Duncan's claims.
Standard of Review
"'"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
1061393
8
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),
quoting in turn Dow v. Alabama Democratic Party, 897 So. 2d
1035, 1038-39 (Ala. 2004)).
Analysis
Duncan argues that the summary judgment was not
appropriate because, he says, genuine issues of material fact
exist as to whether the replacement of the wooden windows with
vinyl ones was a "change in the exterior appearance" of the
building and, therefore, as to whether a certificate of
appropriateness was required under Municipal Ordinance 28-
2004. The defendants argue, as they did in their motion
before the trial court, that, under Municipal Ordinance 28-
2004, every "change in the exterior" of a building in a
historic district in the City requires the approval of the
1061393
9
Board, and, in this case, according to the defendants, the
Board's approval was properly withheld.
"Municipalities have the authority to regulate the use of
structures and improvements in certain zones or districts and
can use their zoning power to regulate aesthetics in
maintaining
property
values."
City of
Mobile
v.
Weinacker, 720
So. 2d 953, 954 (Ala. Civ. App. 1998) (citing Chorzempa v.
City of Huntsville, 643 So. 2d 1021 (Ala. Crim. App. 1993),
and Pate v. City Council of Tuscaloosa, 622 So.2d 405 (Ala.
Civ. App. 1993)). However, "'"[s]o far as [an ordinance]
restricts the absolute dominion of the owner over its
property, it should furnish a uniform rule of action, and its
application cannot be left to the arbitrary will of the
governing authorities."'" 720
So. 2d
at
955 (quoting Longshore
v. City of Montgomery, 22 Ala. App. 620, 622, 119 So. 599, 600
(1928), quoting in turn City Council of Montgomery v. West,
149 Ala. 311, 314, 42 So. 1000, 1000 (1907)).
"City ordinances are subject to the same general rules of
construction as are acts of the legislature." City of
Birmingham v. AmSouth Bank, N.A., 591 So. 2d 473, 476 (Ala.
1991) (citing S & S Distrib. Co. v. Town of New Hope, 334 So.
1061393
10
2d 905 (Ala. 1976)). In Ex parte City of Orange Beach Board
of Adjustment, 833 So. 2d 51, 55-56 (Ala. 2001), this Court
applied the following general rules of statutory construction
to a municipal ordinance:
"'"The fundamental rule of statutory
construction is to ascertain and give
effect to the intent of the [city council]
in
enacting
the
[ordinance].
Advertiser
Co.
v. Hobbie, 474 So. 2d 93 (Ala. 1985);
League of Women Voters v. Renfro, 292 Ala.
128, 290 So. 2d 167 (1974). If possible,
the intent of the [city council] should be
gathered
from
the
language
of
the
[ordinance] itself. Advertiser Co. v.
Hobbie, supra; Morgan County Board of
Education v. Alabama Public School &
College Authority, 362 So. 2d 850 (Ala.
1978). ..."'
"In Ex parte Dorough, 773 So. 2d 1001, 1003
(Ala. 2000) (citing Ex parte Pfizer, Inc., 746 So.
2d 960, 964 (Ala. 1999)), this Court stated:
"'"'....
"'"'"'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.'"'"'"
1061393
11
Municipal Ordinance 28-2004, to which this Court now
applies the above principles of construction, states plainly
that
"[n]o change in the exterior appearance of ... any
building, structure, or site within a Historic
District may be made ... unless and until a
certificate of appropriateness for such change,
erection or demolition is approved by the Board."
Municipal
Ordinance
28-2004,
Part
IV,
§ 1(a)
(emphasis
added).
Likewise, Ala. Code 1975, § 11-68-9, the statute pursuant to
which the City adopted Municipal Ordinance 28-2004, allows
municipalities
to
require
a
certificate
of
appropriateness
for
any "change in the exterior appearance of an historic property
or any building ... within an historic district" (emphasis
added).
Duncan argues that the term "exterior appearance" means
the "way the building looks on the outside." Therefore,
according to Duncan, only changes to the outside appearance of
a house in a historic district must be submitted to the Board
for approval. Duncan further argues that the vinyl windows he
is installing do not change the way the house looks on the
outside and thus a certificate of approval was not required
for their installation.
1061393
12
The defendants take a much more nuanced approach. The
defendants
presume,
without
presenting
any
authority,
argument, or discussion, that "exterior appearance" means
merely "exterior"; thus, they argue, any changes or repairs to
the exterior of a building in a historic district, regardless
of whether those changes actually alter the outside
"appearance" of the building, require a certificate of
appropriateness.
The first step in our de novo review of the trial court's
summary judgment is to determine whether the defendants, as
the movants, "'"made a prima facie showing that no genuine
issue of material fact exists and that the [defendants are]
entitled to a judgment as a matter of law."'" Gooden v. City
of Talladega, 966 So. 2d at 235 (quoting Prince, 935 So. 2d at
442, quoting in turn Dow, 897 So. 2d at 1038). In this case,
we need go no further than this first step, because the
defendants have not met their burden.
When the Alabama Legislature and the City enacted the
governing
statute
and
Municipal
Ordinance
28-2004,
respectively, they chose to use the words "change in the
exterior appearance" to prescribe when a certificate of
1061393
13
appropriateness is required.
Despite caselaw stating
that,
in
determining the meaning of a statute or ordinance, "this Court
looks to the plain meaning of the words as written," Orange
Beach, 833 So. 2d at 56 (emphasis added), the defendants
simply ignore the word "appearance" in the ordinance. The
defendants supplied no legal authority for the definition of
the term "exterior appearance" and produced no evidence to
support the conclusion that the change created by replacing
the wooden windows on the house with the vinyl ones is a
change in the "exterior appearance" of the house. Rather, the
defendants' arguments all presume that a change in the
"exterior" of a building, regardless of whether the outside
"appearance" of the building is affected by the change, is all
that is needed to trigger the requirement of a certificate of
appropriateness. Because the defendants' arguments are not
based on the language of Municipal Ordinance 28-2004 "as
written," the defendants did not carry their initial burden
at the summary-judgment stage, and they were not entitled to
a summary judgment.
In ruling that the defendants did not carry their burden,
this Court is not to be understood as necessarily adopting or
1061393
14
rejecting
Duncan's
proposed
definition
of
"exterior
appearance." The defendants' failure to meet their initial
burden at the summary-judgment stage simply means that we need
not consider Duncan's proposed definition of that term or the
effect of the photographs of the vinyl and wooden windows he
submitted as evidence or the trial court's comment that, based
on the evidence before it, it could not tell the difference
between the vinyl windows and the wooden ones being replaced.
Further, we emphasize that we are expressing no opinion
on whether the vinyl replacement windows in fact constitute a
change in "exterior appearance." Rather, our holding is
limited to a determination that, on this record, the
defendants have not met their burden of demonstrating that no
genuine issue of material fact exists and that they are
entitled to judgment as a matter of law.
Duncan also argues that, because vinyl windows are not
among those items listed in a document titled "Architectural
Review
Board
Guidelines"
as
expressly
prohibited
in
historical
districts, the Board has no authority to prevent him from
replacing the wooden windows on the house with vinyl ones.
Having found that summary judgment was improper because the
1061393
15
defendants failed to carry their burden of showing that the
vinyl windows changed the "exterior appearance" of the
residence, the Court will not address Duncan's argument as to
the guidelines.
Finally, the defendants argue that they are entitled to
a summary judgment as to Duncan's negligence claim because,
they argue, the City "does not owe Duncan a duty to do
anything unlawful." Thus, the defendants' argument as to the
existence of a duty rests on the defendants' assumption that
the installation of the vinyl windows is unlawful under
Municipal
Ordinance
28-2004.
However,
as
discussed
above,
the
defendants have not met their burden of demonstrating that
they are entitled to a judgment as a matter of law on this
issue. Therefore, summary judgment is not appropriate on
Duncan's negligence claim, based on this record. In so
holding, we do not hold that the City owed Duncan any duty; we
simply hold that the defendants have not demonstrated that the
City owes Duncan no duty and, therefore, the defendants are
not entitled to summary judgment on Duncan's negligence at
this time.
1061393
16
Conclusion
For the reasons stated above, the defendants are not
entitled to a summary judgment on this record. The judgment
of the Court of Civil Appeals is reversed, and the case is
remanded
for
further
proceedings
consistent
with
this
opinion.
REVERSED AND REMANDED.
See, Woodall, Stuart, Smith, Bolin, and Murdock, JJ.,
concur.
Parker, J., concurs specially.
Lyons, J., concurs in the result.
1061393
17
PARKER, Justice (concurring specially).
Roy Duncan and Air Flow Awning Company, Inc., sought
certiorari review of the Court of Civil Appeals' no-opinion
affirmance, alleging a conflict with that decision and City of
Mobile v. Weinacker, 720 So. 2d 953 (Ala. Civ. App. 1998).
I write specially to reiterate a fundamental principle
about private property set forth in Weinacker:
"'"[S]o far as [an ordinance] restricts the absolute
dominion of the owner over its property, it should
furnish
a
uniform
rule
of
action,
and
its
application cannot be left to the arbitrary will of
the governing authorities."' Longshore v. City of
Montgomery, 22 Ala. App. 620, 622, 119 So. 599, 600
(1928), quoting City Council of Montgomery v. West,
149 Ala. 311, 314, 42 So. 1000, 1000 (1907)."
720 So. 2d at 954-55. | April 11, 2008 |
be86adca-e66f-48bb-938a-a7a011b95c95 | Ex parte Shana M. Flynn. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Shana M. Flynn v. Michael Patrick Flynn) | N/A | 1070109 | Alabama | Alabama Supreme Court | REL: 04/11/08
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, 2007-2008
____________________
1070109
____________________
Ex parte Shana M. Flynn
PETITION FOR WRIT OF MANDAMUS
(In re: Shana M. Flynn
v.
Michael Patrick Flynn)
(Autauga Circuit Court, DR-05-166.02)
MURDOCK, Justice.
Shana M. Flynn ("the mother") seeks a writ of mandamus
directing the Autauga Circuit Court to vacate its existing
1070109
2
order, entered in September 2007, denying her motion for a
protective order to prevent the taking of her deposition.
Among other things, the mother also requests in her petition
that this Court order the trial court to refrain from
requiring her to testify at any future hearing in the present
case until the resolution of a criminal case that is pending
against her. We grant the petition to the extent it seeks the
vacation of the trial court's existing order.
In March 2006, the Autauga Circuit Court entered a
judgment divorcing the mother and Michael Patrick Flynn ("the
father"). Pursuant to the judgment, which was based on a
settlement agreement between the parties, the Autauga Circuit
Court awarded the parties joint legal custody of their two
minor children. The trial court awarded the mother primary
physical custody of the children, and it awarded the father
visitation.
The case-action-summary sheet from the parties' divorce
proceeding reflects that after the trial court entered the
judgment of divorce a dispute arose concerning visitation and
certain other matters. The father filed at least two motions
requesting that the trial court hold the mother in contempt.
1070109
The criminal matter was submitted to a grand jury in
1
August 2007; the grand jury issued an indictment against the
mother in November 2007.
3
At a hearing in May 2007, the parties apparently reached an
agreement concerning some of their disputes, and the trial
court entered an order directing the mother to acquire life
insurance as required by the divorce judgment, directing her
to return $370 that she had withdrawn from the father's bank
account, and directing her to pay $750 of the father's
attorney fees.
In June 2007, as a result of an undercover sting
operation, the mother was arrested and charged with conspiracy
to solicit the murder of the father.
1
In early July 2007, the father filed a petition to modify
custody; he sought sole legal custody and sole physical
custody of the children. Also, the father requested that the
trial court enter an emergency order awarding him pendente
lite custody of the children. The father based his petition
on the recent criminal charge against the mother and on her
alleged "extreme" instability "with possible psychological
issues rendering her completely unfit/unstable and unable to
care for the ... children." In his petition, the father also
1070109
In his appellate brief, the father argues that the
2
mother's alleged failure to comply with prior "orders" of the
trial court constituted one of the grounds for his petition to
modify custody. The only prior order discussed in the
father's petition for modification of custody is the May 2007
order. The prayer for relief in the father's petition
requests that the trial court hold the mother in contempt for
failing to satisfy her obligations under the May 2007 order.
The father does not appear to assert in his petition that the
mother's alleged failure to comply with the May 2007 order was
grounds
for
modification
of
custody,
nor
are
there
allegations
concerning how her failure to comply with the order might
relate to the care or welfare of the children. Even assuming
that the mother failed to comply with the obligations imposed
by the May 2007 order and that the father had properly raised
the issue in support of his custody-modification request, it
is unclear how the mother's conduct in that regard might
constitute grounds for modifying custody.
4
requested that the trial court enter an order holding the
mother in contempt of court for failing to satisfy her
financial obligations to him under the May 2007 order and for
failing to provide him with documentation that she had
procured life insurance.
2
A few days after the father filed his petition for
modification of custody, the trial court entered an order
awarding the father sole pendente lite custody (both legal and
physical) of the children.
The mother filed an answer denying most of the material
allegations in the father's petition for modification but
1070109
5
admitting that she had been charged with attempt to solicit
the father's murder. The mother issued notices of deposition
to the father and Agent Scott Donovan, the undercover agent
with the Alabama Bureau of Investigation whom she allegedly
solicited to murder the father.
The father filed a motion seeking a psychological
evaluation of the mother to determine whether she posed any
danger to the children. The mother objected to the
psychological evaluation to the extent it might require her to
discuss any matters regarding the pending criminal charge
against her. Also, in late July 2007, the father filed a
motion to quash the mother's deposition subpoenas. The father
argued in part that it would "be inherently unfair and
substantially prejudic[ial] ... to require him to give a
deposition ... knowing that the [mother] has no intention of
making herself available for the same, without restrictions or
asserting [her] Fifth Amendment [p]rivilege [against self-
incrimination]." The father requested that the trial court
enter an order staying all depositions pending a hearing.
In August 2007, after conducting a pendente lite hearing,
the
trial
court
instructed
the
parties
to
schedule
1070109
Based on copies of correspondence submitted by the father
3
as an exhibit to his appellate brief, on September 12, 2007,
counsel for the father wrote a letter to counsel for the
mother suggesting several possible deposition dates in
September 2007 and one in early October 2007. Counsel for the
mother responded in a letter stating, in part:
"Of the dates you propose, I have selected the dates
of September 18 & 19, 2007, beginning at 2:15 p.m.
on each date, in which to depose the [father] and
Agent Donovan. It is my understanding that you will
depose my client after the conclusion of these
depositions on September 19. ... I will need to
hear from you promptly on this matter as I intend on
issuing Donovan's deposition subpoena this morning.
Deposition notices will follow shortly."
In her reply brief, the mother does not deny the existence of
the above-described correspondence or the accuracy of the
content. However, there is nothing in the materials before us
to reflect that the trial court was presented with the details
of the parties' September 12 and September 13 correspondence
6
depositions, and it set another pendente lite hearing for
September 13, 2007. A few days before the September 13
hearing, the father filed a motion alleging that the parties
had been unable to arrange for depositions because of
scheduling conflicts. The father requested that the trial
court reschedule the September 13 hearing for a later date and
that it order the parties to make themselves available for
deposition on September 13. The trial court rescheduled the
review hearing, but it apparently did not order the parties to
make themselves available for deposition on September 13.
3
1070109
or that that correspondence was made part of the record in the
present case. Thus, we will not consider the content of the
letters in determining whether the trial court exceeded its
discretion in denying the mother's motion for a protective
order, filed on September 19, 2007, and discussed infra. See
Ex parte Turner, 840 So. 2d 132, 135 (Ala. 2002)(stating the
well-settled
rule
that "the appellate court will consider only
that factual material available of record to the trial court
for its consideration in deciding the motion").
Although the materials before us do not include either
4
a copy of the motion to quash or a transcript of the September
18, 2007, conference call, the information in the text
concerning the motion to quash and the granting of that motion
7
On September 13, 2007, the mother issued a notice of
deposition to the father; the father's deposition was to occur
on September 18, 2007, immediately after Agent Donovan's
deposition, which was also noticed for September 18, 2007.
Subsequently, the father issued a notice of deposition to the
mother; the mother's deposition was to occur on September 19,
2007.
Agent Donovan did not appear for his scheduled
deposition, and, as a result, the parties' counsel held a
conference call with the trial court on September 18, 2007.
During the conference call, the trial court informed counsel
for the parties that a motion to quash had been filed as to
Agent Donovan's deposition subpoena and that it was granting
the motion. Following the conference call, the mother took
4
1070109
is undisputed. Further, it is clear from the transcript of a
September 19, 2007, conference call between the parties'
counsel and the trial court, see discussion, infra, that the
mother was not permitted to take Agent Donovan's deposition on
September 18.
The father asserts in his brief to this Court that,
during the September 18 conference call, after the trial court
granted the motion to quash Agent Donovan's deposition
subpoena:
"Counsel for the [mother] ... argued with the
Court's
ruling
concerning
[Agent]
Donovan's
deposition and suggested that his client may no
longer be in a position to offer any testimony in
the case if she were not permitted to take the
deposition
of
[Agent]
Donovan.
Upon
this
development, Counselor for the [father] ... again
renewed and raised the issue already addressed with
the Court that it would be inherently unfair and
prejudicial to the [father] to be required to give
deposition testimony if, in fact, the [mother] was
changing her position and refusing to give any
testimony at all by way of deposition. Furthermore,
in presenting said argument, Counsel for the
[father] explained to the Court that there were
other necessary issues of discovery including the
[mother]'s work history, medical/physical issues
concerning the children, changes of residences and
other relevant issues as to 'fitness' not related in
any way to the pending criminal charge; and, that
this discovery was necessary for the development of
the [father]'s case in chief to modify custody. At
the conclusion of the legal argument, the Court
recognized the need for discovery on these issues
and ordered the parties to proceed with the
deposition of the [father] on September 18th at 2:15
p.m. and to proceed with the deposition of the
[mother]
on
September
19th
at
2:15
p.m.,
specifically instructing counselors that if any
8
1070109
questions to the [mother] were in any way related to
the pending criminal charge, that counsel for the
[mother] should 'certify the question' on the record
and have the questions presented to the Trial Court
for ruling the following day."
(Emphasis omitted.) The foregoing factual statements are not
supported by the materials before us, however, and we will
therefore not consider them. See Ex parte Turner, 840 So. 2d
at 135.
9
the father's deposition.
On September 19, 2007, the mother filed a motion for a
protective order. Relying on this Court's holding in Ex parte
Dinkel, 956 So. 2d 1130 (Ala. 2006), the mother sought to
prevent "the taking of her deposition until such time as the
criminal charge against her [was] resolved." In Dinkel, this
Court stated, in part:
"This Court consider[s] three issues when deciding
whether to issue the writ of mandamus and stay the
[civil]
proceeding [pending resolution of the
criminal proceeding]: (1) whether the civil and
criminal proceedings [are] parallel; (2) whether
[the movant]'s Fifth Amendment protection against
self-incrimination [is] threatened by his testifying
in the [civil] proceeding; and (3) whether the
requirements of the balancing test established in Ex
parte Baugh, 530 So. 2d 238, 244 (Ala. 1988), [are]
met. ...
"... [T]he same concerns apply to a party
seeking a protective order."
1070109
10
956 So. 2d at 1133 (relying on Ex parte Rawls, 953 So. 2d 374
(Ala. 2006)).
After filing her motion for a protective order, the
mother appeared for her deposition, but she refused to
testify. The parties' counsel then participated in a
conference call with the trial court concerning the mother's
motion for a protective order. The transcript of the
conference call reveals the following discussion:
"THE COURT: I thought y'all had agreed
yesterday that there was going –- that you were
going to take the parties' depositions.
"[FATHER'S COUNSEL]: Well, not only that,
Judge, but through my argument at our last two
hearings and in conversations with [the mother's
counsel], I have consistently refused to put [the
father] up if I wasn't going to be able to at least
put ... [the mother] under oath and either get her
to plead the Fifth or give me a deposition or
partial deposition. And after putting my client up,
then I get this motion for a protective order filed
on the eve of our turn, for lack of a better phrase.
But that having been said Judge, I want to address
the issue and the case cited in the [mother's]
motion. [In Dinkel,] there is a distinction, a clear
distinction, that I want to make in my –- since I
haven't had a chance to file a written response to
this motion, I'm reduced to making it verbally.
"THE COURT: Well, I think I –- I think I know
what your argument is. And that is that [Dinkel] is
a –- ... was apparently an automobile accident where
there's a suit about the automobile accident and a
1070109
In her motion for a protective order, the mother did not
5
assert Agent Donovan's failure to appear for his deposition or
the trial court's granting of the motion to quash Agent
Donovan's deposition subpoena as a basis for her motion.
11
criminal action concerning the automobile accident
as well.
"[FATHER'S COUNSEL]: Exactly.
"THE
COURT:
Which
made
it
a
parallel
proceeding.
"[FATHER'S COUNSEL]: Right. And any testimony
that that deponent would have given about that
incident regarding wantonness or negligence could
have implicated him or waived his Fifth Amendment
privilege in any criminal proceeding for the same
thing.
"What I want to do is take at least a partial
deposition of [the mother] on other issues, such as
where she's resided, her income, other issues of
fitness. And then once I get to anything remotely
related to her pending criminal proceedings, if she
asserts her Fifth Amendment privilege, I think she's
well within her rights. And that is in the spirit
of the case that's been cited.
"THE COURT: Okay. [Counsel for the mother.]
"[MOTHER'S COUNSEL]: Your Honor, the first
thing I would note is as of yesterday, we had all
agreed I would depose Agent Donovan as well
yesterday; and that did not happen.
Secondly, the
[5]
Dinkel case makes clear that it is inappropriate to
require
a
defendant
in
a
parallel
criminal
proceeding
to
selectively
invoke
the
Fifth
Amendment.
"THE COURT: This is not a –- is this a parallel
proceeding?
1070109
The
colloquy
from
the
September
19,
2007,
conference
call
6
reflects that the trial court understood that the parties had
previously reached some agreement concerning the taking of
their
respective
depositions.
The
colloquy,
however,
suggests
that the trial court did not rely on the parties' agreement as
the basis for denying the mother's motion for a protective
order. Instead, the colloquy suggests that the trial court
relied on its conclusion that the custody-modification case
was not a civil proceeding that was "parallel" to the
criminal proceeding pending against the mother.
The father urges this Court to conclude that the mother
is "estopped" from refusing to submit to deposition because of
the parties' "agreement" concerning the depositions and his
alleged reliance on that agreement as the basis for his
submitting to deposition on September 18. Any such estoppel,
however, would have had to be based on findings of fact (1)
regarding the terms of the parties' "agreement," the mother's
conduct, and the father's "reliance," as to each of which the
materials before us in varying degrees are unclear or
12
"[MOTHER'S COUNSEL]: It is. It pertains
exactly to the –-
"THE COURT: No. This proceeding pertains to
the change of custody of children.
"[MOTHER'S COUNSEL]: Right. Based on the
allegation of criminal activity, which is the
solicitation to commit murder.
"THE COURT: Not –- is it so –- is that solely
the grounds?
"[FATHER'S COUNSEL]: No, sir.
"[MOTHER'S COUNSEL]: Well, that is the –-
"THE COURT: All right. Here we go. Motion for
protective order denied. Thank you, gentlemen."6
1070109
omissive, see generally notes 3 and 4, supra, and (2) which
the trial court did not explicitly make. Further, as noted,
the colloquy does not suggest that the trial court's decision
depended on an estoppel theory; rather, it suggests that the
decision was based on the trial court's view as to whether the
present case involved a "parallel" proceeding. Thus we
decline to address here whether estoppel might be a proper
ground to support the denial of the mother's motion. See,
e.g., Hinds v. Hinds, 887 So. 2d 267, 272 n.2 (Ala. Civ. App.
2003).
As part of the father's motion to compel he also
7
requested that the trial court sanction the mother for failing
to honor her agreement to "present[] herself for deposition
... and give testimony as to issues not related to the pending
criminal matter ... while reserving the right to assert her
Fifth Amendment privilege on any matters or questions related
to the pending criminal matter." The trial court was unable
to rule on the father's motion because of stays subsequently
entered by this Court and by the Court of Civil Appeals before
the denial of the mother's petition for the writ of mandamus
on October 16, 2007, Ex parte Flynn (No. 207006, Oct. 16,
2007), __ So. 2d __ (Ala. Civ. App. 2007)(table).
13
After the conference call, the mother refused to testify
at her deposition, and the father filed a motion to compel the
mother to submit to deposition. The mother filed a petition
7
for writ of mandamus with the Court of Civil Appeals and an
emergency motion to stay further proceedings in the trial
court. The Court of Civil Appeals granted the motion to stay
but subsequently denied the mother's petition without an
opinion and lifted the stay. Ex parte Flynn (No. 207006, Oct.
16, 2007), __ So. 2d __ (Ala. Civ. App. 2007)(table). The
1070109
14
mother filed a petition for a writ of mandamus with this
Court, as well as a motion requesting that we stay further
proceedings in the trial court pending our resolution of her
petition. We granted the motion to stay but left undisturbed
the trial court's award of pendente lite custody to the
father.
The mother asks this Court to direct the trial court to
vacate its order denying her motion for a protective order.
We grant the mother's petition in part.
The writ of 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
"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 Perfection Siding, Inc., 882 So. 2d 307, 309-10 (Ala.
2003) (quoting Ex parte Integon Corp., 672 So. 2d 497, 499
(Ala. 1995)). This Court may grant a writ of mandamus "to
prevent an abuse of discretion, or to correct an arbitrary
action outside of the exercise of a reasonable discretion."
1070109
The "balancing test" is the subject of extensive
8
exposition by this Court in Ex parte Ebbers, 871 So. 2d 776,
787-88 (Ala. 2003).
15
Foshee v. State, 210 Ala. 155, 157, 97 So. 565, 566 (1923).
A petition for a writ of mandamus is the appropriate means for
challenging the denial of a motion to stay discovery or of a
motion for a protective order under circumstances such as
those in the present case. See Ex parte Weems, 711 So. 2d
1011 (Ala. 1998); see also Dinkel, supra.
As noted above, in Dinkel this Court stated that we
"consider[] three issues when deciding whether to
issue the writ of mandamus and stay the [civil]
proceeding: (1) whether the civil and criminal
proceedings
[are]
parallel;
(2)
whether
[the
movant]'s
Fifth
Amendment
protection
against
self-incrimination [is] threatened by his testifying
in the [civil] proceeding; and (3) whether the
requirements of the balancing test
established in
[8]
Ex parte Baugh, 530 So. 2d 238, 244 (Ala. 1988),
[are] met. ...
956 So. 2d at 1133 (emphasis added).
The trial court's apparent conclusion that the present
case did not involve a civil proceeding "parallel" to the
pending criminal case against the mother is incorrect for two
reasons. First, to the extent the concept of a "parallel"
proceeding relates to the time of the proceeding, there is
clearly a parallel proceeding in the present case because
1070109
16
criminal charges against the mother were pending at all times
pertinent to the present case. Second, as hereinafter
discussed, to the extent the concept of a "parallel"
proceeding relates to the nature of the claims and charges at
issue, the present case includes sufficient "overlap" of
issues and "implication" of the mother's Fifth Amendment
rights to constitute a parallel proceeding. See, e.g., Ex
parte Baugh, 530 So. 2d 238, 239 (Ala. 1988)(civil claim
alleging slander filed while there was a pending grand-jury
investigation of, and eventual indictment for, the charge of
theft of property); Rawls, 953 So. 2d at 380 ("Because th[e]
criminal proceeding [relating to a charge of stalking the
former wife] and the divorce proceeding have some overlapping
acts,
they
must
be
considered
parallel
proceedings.
Therefore, Bryan [Rawls]'s motion for a stay cannot be denied
on the grounds that these are not parallel proceedings."
(emphasis added)).
The criminal proceeding at issue here involves a charge
that the mother attempted to hire Agent Donovan to murder the
father. The present case involves the father's attempt to
prove that a material change of circumstances has occurred
1070109
17
since the entry of the divorce judgment so that it is in the
best interests of the parties' children for physical custody
to be changed from the mother to him and for him to have sole
legal custody. The pertinent alleged changes of circumstance
described in the father's petition are (1) that the mother
attempted to hire Agent Donovan to murder the father, (2)
"[t]hat the [mother] is extremely unstable with possible
psychological issues rendering her completely unfit/unstable
and unable to care for the parties' minor children," and (3)
"[t]hat the [mother] told the parties' minor children that the
[father] 'caused her to get arrested' and that all of this is
his fault."
The father's petition to modify custody was filed soon
after the mother was arrested and charged with attempting to
solicit his murder. Two of the alleged changes of
circumstances specifically relate to the mother's arrest, and
the third alleged change generically states that the mother is
unfit and unstable, with no indication that her unfitness and
instability are unrelated to the mother's alleged criminal
activity. The father alleged in his July 2007 motion to
quash the mother's deposition subpoenas that he had "concerns
1070109
In his subsequent motion to compel, the
father
9
acknowledged that in the August 2007 pendente lite hearing "it
was discussed [with the trial court] that if the [mother]
asserted her Fifth Amendment Privilege at her deposition that
the Court may infer that the allegations against her were true
in the civil" proceeding, i.e., that the trial court might
infer that she had in fact engaged in some criminal wrongdoing
that would support the father's petition for modification of
custody.
18
about the [mother]'s mental state considering that fact that
she allegedly tried to hire a hit man to kill him." Thus,
9
even the "unfitness and instability" allegations appear to
relate to the mother's alleged crime.
Based on the foregoing, the mother's petition is due to
be granted in part. The trial court is instructed to vacate
its September 2007 order denying the mother's motion for a
protective order and to proceed in a manner consistent with
this opinion.
PETITION GRANTED IN PART; WRIT ISSUED.
Cobb, C.J., and Lyons, Stuart, and Bolin, JJ., concur. | April 11, 2008 |
7864b8f4-c075-4df9-9a1b-f307c9060cf0 | Robert Lee Catrett et al. v. Baldwin County Electric Membership Corporation et al. | N/A | 1061538 | Alabama | Alabama Supreme Court | After
we
issued an earlier
decision
in
this action, David
1
Harms and George P. Kaiser were voluntarily dismissed as
plaintiffs. See Baldwin County Elec. Membership Corp. v.
REL: 5/23/08
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, 2007-2008
____________________
1061538
____________________
Robert Lee Catrett et al.
v.
Baldwin County Electric Membership Corporation et al.
Appeal from Baldwin Circuit Court
(CV-04-1320)
SEE, Justice.
Robert Lee Catrett, Wesley Grant, John Gregg, Davida
Hastie,
Willard
Penry,
Henry
Vick,
and
Cecil
Ward1
1061538
Catrett, 942 So. 2d 337 (Ala. 2006).
2
(hereinafter referred to collectively as "Catrett") seek a
reversal of a summary judgment in favor of defendant Baldwin
County
Electric
Membership
Corporation
("the
Cooperative")
and
J. Thomas Bradley, Jr., Tommie Werneth, John D. Taylor, Jr.,
Peggy R. Hanover, and Aubury L. Fuller, in their individual
capacities as trustees of the Cooperative (hereinafter
referred to collectively as "BCEMC"). We affirm.
Facts and Procedural History
This case arises from a dispute between BCEMC and various
members of the Cooperative over the procedures for the
nomination and election of trustees and the approval of
minutes taken at the annual meeting of the members of the
Cooperative. The Cooperative is an electric cooperative that
supplies electric services to customers in Baldwin and Monroe
Counties. Members of the Cooperative elect a seven-member
board of trustees at an annual meeting. The president of the
board of trustees appoints a nominating committee to nominate
candidates for available trustee positions. According to the
Cooperative's bylaws, nominations may also be made from the
floor by the members at the annual meeting. In July 1999, the
1061538
3
bylaws were amended to allow members to vote either by mailing
in their ballots before the annual meeting or by voting at the
annual meeting. However, because mail-in ballots have to be
returned before the annual meeting, there was no provision for
mail-in voters to vote for candidates nominated from the
floor.
Before the 2004 annual meeting convened, Catrett filed a
two-count complaint against BCEMC. Count I sought a judgment
declaring, among other things, that BCEMC must "comply with
the By-laws of [the Cooperative] by following Robert's Rules
of Order in the election process of the trustees" and amend
the bylaws to provide for special or regular meetings at which
the
membership
could
receive
and
make
nominations
for
trustees
before the time that any voting would take place. Count II of
the complaint sought preliminary and permanent injunctions,
first, prohibiting the Cooperative from holding the annual
meeting
scheduled
for
December
9,
2004;
second,
compelling
the
Cooperative to amend its bylaws to allow for a special
nomination meeting before the annual meeting; and, third,
prohibiting the Cooperative from submitting the minutes from
1061538
4
the March 28, 2003, annual meeting to the membership for
approval without allowing for corrections.
On November 24, 2004, the trial court held a hearing on
the preliminary injunction. At the hearing, Catrett offered
his first amended complaint, which sought a preliminary
injunction
enjoining
the
Cooperative
from
tabulating
any
votes
at the annual meeting until after all nominations had been
received and submitted to the membership for a vote. The
first amended complaint did not allege any new facts.
Following the hearing, the trial court granted the injunctive
relief in part: the annual meeting could proceed on the
scheduled date, but the chairperson of the meeting would have
to allow nominations for the office of trustee to be made from
the floor; if nominations were made from the floor, then new
ballots would be printed and mailed to members of the
Cooperative; and the chairperson was required to accept
motions from the floor for corrections or additions to the
minutes of the 2003 annual meeting. BCEMC petitioned this
Court for the writ of mandamus directing the trial court to
set aside its order (case no. 1040362), and, two days later,
also appealed the trial court's order to this Court (case no.
1061538
On the same day that BCEMC appealed the trial court's
2
order, the trial court amended that order to delay, until this
Court has ruled on the appeal, the Cooperative's obligation to
print and mail new ballots to the membership.
5
1040371). This Court consolidated the appeal and the
2
petition for the writ of mandamus for the purpose of writing
one opinion.
The annual meeting was held on December 9, 2004.
Nominations were received for additional trustee candidates,
and there was a motion to amend the minutes of the 2003
meeting. However, in the absence of a quorum, the motion was
continued until the next annual meeting.
In May 2006, this Court denied BCEMC's petition for the
writ of mandamus and affirmed the preliminary injunction
entered by the trial court. Baldwin County Elec. Membership
Corp. v. Catrett, 942 So. 2d 337 (Ala. 2006) ("Catrett I").
In June 2006, Catrett moved the trial court for leave to amend
his complaint. The trial court granted Catrett's motion.
Catrett's second amended complaint added a count seeking a
declaration that BCEMC had committed a breach of contract and
had violated the Constitution of Alabama of 1901 by "impairing
1061538
The Constitution of Alabama of 1901, § 22, provides:
3
"That no ex post facto law, nor any law,
impairing the obligations of contracts, or making
any irrevocable or exclusive grants of special
privileges or immunities, shall be passed by the
legislature;
and
every
grant
or
franchise,
privilege, or immunity shall forever remain subject
to revocation, alteration, or amendment."
Catrett apparently bases his argument of a constitutional
violation on the fact that when the 1999 amendment to the
bylaws was proposed, the board of trustees adopted a
resolution authorizing voting on the proposed amendment by
mail-in ballot, pursuant to § 37-6-9(b), Ala. Code 1975, which
governs the
operation of electric
cooperatives.
Section
37-6-
9(b) provides, in pertinent part:
"Voting shall be in person, but, if the bylaws so
provide, may also be by proxy or by mail, or both;
provided, however, notwithstanding any contrary
provision in the bylaws of the cooperative, the
board of trustees, by resolution, may authorize
voting by mail on bylaw adoption, amendment, or
repeal and, in such event, the board of trustees
shall also specify the procedures to be followed in
such mail voting. If the bylaws provide for voting
by proxy or by mail, they shall also prescribe the
conditions under which proxy or mail voting shall be
exercised."
6
the obligations of contracts" when it amended the bylaws to
3
allow for mail-in voting. In February 2007, BCEMC moved for
a summary judgment arguing,
among
other
things, that Catrett's
second amended complaint was barred by the statute of
limitations and by the doctrine of res judicata. The trial
1061538
7
court granted BCEMC's motion on both grounds; Catrett now
appeals.
Issues
Catrett raises three issues on appeal. First, he argues
that the trial court erred in entering a summary judgment in
favor of BCEMC on the ground that Catrett's second amended
complaint is barred by the doctrine of res judicata. Second,
he argues that the trial court erred in entering a summary
judgment in favor of BCEMC on the ground that Catrett's second
amended complaint did not relate back to the original
complaint, and, therefore, was barred by the statute of
limitations. Third, he argues that the trial court erred "in
not
addressing
the
issue
presented
regarding
continuing
breach
of contract for each new mail-in vote." Catrett's brief at 4.
Standard of Review
"On appeal, this Court reviews a summary judgment de
novo." DiBiasi v. Joe Wheeler Elec. Membership Corp., [Ms.
1060848, Jan. 10, 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
1061538
8
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, [Ms. 1060306, August 17,
2007] ___ So. 2d ___, ___ (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 ___.
Analysis
1061538
9
As a threshold issue, we first address Catrett's argument
that the trial court erred in entering a summary judgment in
favor of BCEMC on the ground that Catrett's amended complaint
was barred by the applicable statute of limitations because it
did not relate back to the original complaint. The trial
court's order states that the original complaint
"never raised the constitutionality of the statute
which authorized the bylaw change to allow mail in
voting. The original complaint only related to the
application of [the Cooperative's] bylaws with
respect to nominations from the floor [at the 2004
annual
meeting]
and
the
placement
of
those
nominations before the entire membership for voting.
Therefore, the Court determines that the [second]
amended complaint cannot relate back to the filing
of the complaint in this case."
Although the trial court refers to Catrett's claim as a
constitutional challenge, Catrett does not, in the second
amended complaint, ask the court to invalidate any statute.
Rather, Catrett requests a judgment declaring that an
amendment to the Cooperative's bylaws, enacted pursuant to
statutory authority, is "invalid."
In Catrett I, this Court noted that "[t]he right to vote
is granted to all members of the Cooperative under the bylaws
and by statute. Thus, each member of the Cooperative had a
contractual right to vote." 942 So. 2d at 345-46 (footnote
1061538
Alabama Code 1975, § 6-2-34, provides:
4
"The following must be commenced within six
years:
"....
"(4) Actions founded on promises in writing
not under seal;
"....
10
omitted). Therefore, Catrett's claim appears to be a breach-
of-contract claim based on his allegation that the amendment
to the bylaws violates his contractual right to vote. Neither
Catrett nor the trial court in its order granting BCEMC's
summary-judgment motion states the applicable statute of
limitations; however, it is undisputed that unless the second
amended complaint relates back to the original complaint, it
is barred by the applicable statute of limitations.
Catrett avers that the claim in the second amended
complaint should relate back to the original complaint
because, he says, it is "an alternate theory of recovery for
the breach of contract and deprivation of voting rights."
Catrett's brief at 37. BCEMC argues that because Catrett has
alleged a cause of action for breach of contract, the six-year
statute of limitations applies. Our review of the law
4
1061538
"(9) Actions upon any simple contract or
specialty not specifically enumerated in this
section."
11
indicates that subsections (4) and (9) of § 6-2-34, Ala. Code
1975, appear to supply the correct statute of limitations to
be applied in this case, and Catrett has made no argument to
the contrary. The second amended complaint specifically
requests a court order invalidating the Cooperative's
amendment of the bylaws that occurred on July 15, 1999. As
noted previously, this is a contract claim, and Catrett's
second amended complaint was not filed until July 5, 2006,
more than six years after the alleged breach of contract.
Therefore, unless Catrett's second amended complaint relates
back to the date of his original complaint, November 18, 2004,
those claims are barred by the statute of limitations.
Rule 15(c), Ala. R. Civ. P., provides, in pertinent part,
that "[a]n amendment of a pleading relates back to the date of
the original pleading when ... (2) the claim or defense
asserted in the amended pleading arose out of the conduct,
transaction, or occurrence set forth or attempted to be set
forth in the original pleading." Catrett cites two of this
1061538
12
Court's previous decisions for the general proposition that
when an amendment "adds a new theory of liability ... based
upon the same facts as the original theory and those facts
have been brought to the attention of the opposite party by a
previous pleading, no prejudice is worked by allowing the
amendment."
Catrett's brief
at
37-38
(citing Money v. Willings
Detroit Diesel, Inc., 551 So. 2d 926, 929 (Ala. 1989)
("'Where, as here, the proffered amendment would "merely
change the legal theory of a case or add an additional theory,
but the new or additional theory is based upon the same set of
facts and those facts have been brought to the attention of
the other party by a previous pleading, no prejudice is worked
upon the other party."'" (quoting Whitfield v. Murphy, 475 So.
2d 480, 483 (Ala. 1985), citing in turn Bracy v. Sippial Elec.
Co., 379 So. 2d 582, 583 (Ala. 1980)))); see also McClendon v.
City of Boaz, 395 So. 2d 21, 26 (Ala. 1981) ("When a new
theory of liability is based upon the same facts and those
facts have been brought to the attention of the opposite party
by previous pleading, no prejudice is worked by allowing the
amendment.").
Catrett
argues
that
his
original
pleading
deals
with voting rights, the election process for trustees of the
1061538
13
Cooperative, and violations of the bylaws of the Cooperative.
He argues that his second amended complaint, dealing with
similar issues, relates back to the claims and issues of the
initial pleading because, he says, "[t]he initial complaint
requested the restoration of the contract rights of the
members [of
the
Cooperative]
and [sic] force [the
Cooperative]
to restore the voting back in the hands of the members at the
annual meeting." Catrett's brief at 38-39.
"However, this Court has also held that where the
plaintiff, in an amendment filed beyond the statutory
limitations period, alleges facts that were not alleged in the
original complaint or attempts to state a cause of action that
was not stated in the original complaint, the amendment is
time-barred." ConAgra, Inc. v. Adams, 638 So. 2d 752, 754
(Ala. 1994). In this case, the factual allegations in the
second amended complaint are different from those in the
original complaint. Although both the original complaint and
the second amended complaint quote extensively from the
Cooperative's bylaws, no section of the bylaws appears in
both. Moreover, the original complaint presents facts
confined to the period between the Cooperative's annual
1061538
14
meeting held on March 28, 2003, and the annual meeting
scheduled for December 9, 2004. Based on these initial facts,
Catrett sought to enforce compliance with the bylaws that
existed at that time and to compel the amendment of the bylaws
to allow for a special nomination meeting to be held before
the annual meeting. In contrast, the second amended complaint
alleges facts confined to a period between the Cooperative's
annual meeting held on October 31, 1998, and the adoption of
the amended bylaws in July 1999. Based on these additional
facts, Catrett's second amended complaint seeks to invalidate
an amendment to the bylaws that occurred almost four years
before the occurrence of the facts that are the basis of his
allegations in the original complaint.
Also, the second amended complaint alleges a cause of
action that is at odds with the averments of the original
complaint. Rather than seeking to invalidate the amendment to
the Cooperative's bylaws that allows for mail-in voting, the
original complaint implicitly accepts the mail-in voting
amendment and demands that the Cooperative "be required to
follow the By-laws of the [Cooperative] in the election
process for trustees." Amendment to complaint at ¶6. Although
1061538
15
the original complaint calls for an amendment to the bylaws
"to provide for a special meeting of the membership to receive
the nominating committee's report for nominations of the
trustees and to allow nominations from the floor prior to the
vote of the membership for trustees at the annual meeting," it
does not contest, or even mention, the bylaw that provides for
mail-in voting on those nominations. Indeed, one may argue
that
a
prior
nominating
meeting
is
important
precisely
because
it permits mail-in voters to vote on nominations from the
floor.
In contrast, the second amended complaint rejects any
notion of voting by mail-in ballots, arguing that the
Cooperative bylaw provision that allows for it constitutes a
breach of contract and an impairment of contracts in violation
of the Constitution of Alabama of 1901. Thus, the second
amended complaint does not merely allege "a new theory of
liability ... based upon the same facts [that] have been
brought to the attention of the opposite party by previous
pleading." McClendon, 395 So. 2d at 26. Instead, the second
amended complaint relies on a set of facts that are different
from and unrelated to the facts supplied in the original
1061538
16
complaint and seeks relief that differs from the relief sought
in the original complaint. Because the second amendment to
the complaint "alleges facts that were not alleged in the
original complaint [and] attempts to state a cause of action
that was not stated in the original complaint, the amendment
is time-barred," ConAgra, Inc., 638 So. 2d at 754, and we,
therefore, affirm the trial court's summary judgment in favor
of BCEMC.
Catrett invites this Court to adopt a "continuing-
contract" doctrine for determining when a breach of contract
occurs, tolling the statute of limitations "until the last
time BCEMC breach[ed] the contractual relationship with its
members and denied them their voting rights as set forth in
the by-laws." Catrett's brief at 40. However, even if we were
inclined
to
accept Catrett's invitation,
an
application
of
the
continuing-contract doctrine would not affect the outcome of
this case. Catrett's second amended complaint alleges that
"[a] justiciable controversy exists between [Catrett] and
[BCEMC] as to the proper method to amend the by-laws of [the
Cooperative]." Based on this allegation, Catrett's second
amended complaint requested two declarations: (1) that "[t]he
1061538
17
amendment to the by-laws of [the Cooperative] in July, 1999,
allowing for mail-in voting is invalid" and (2) "[t]hat any
amendment to the by-laws of [the Cooperative] must be approved
by the members at any annual or special meeting of the
members." The second amendment to the complaint makes no
mention of any alleged continuing breach committed by BCEMC.
Based on these averments, it is clear that the breach
complained of is the July 1999 amendment of the bylaws, not
the subsequent instances of mail-in voting conducted in
compliance with the amended bylaws. We therefore decline to
adopt
and apply the continuing-contract
doctrine
in
this case.
Because we hold that Catrett's second amended complaint
does not relate back to the original complaint and is
therefore barred by the six-year statute of limitations, we
pretermit discussion of Catrett's allegation that the trial
court erred in applying the doctrine of res judicata. See
DeFriece v. McCorquodale, [Ms. 1061825, April 11, 2008] ___
So. 2d ___, ___ (Ala. 2008) (citing Smith v. Equifax Servs.,
Inc., 537 So. 2d 463, 465 (Ala. 1988) ("In any event, we will
affirm a summary judgment if that judgment is proper for any
reason supported by the record ....")).
1061538
18
Conclusion
Even when the evidence is viewed, as it must be, in the
light most favorable to Catrett, Catrett's second amended
complaint alleges facts and argues grounds for relief that
were not presented in the original complaint. We, therefore,
hold that the second amended complaint does not relate back to
the original complaint and, is, therefore, time-barred. For
this reason, we affirm the trial court's summary judgment in
favor of BCEMC.
AFFIRMED.
Cobb, C.J., and Woodall, Smith, and Parker, JJ., concur. | May 23, 2008 |
5bb8055b-451b-4748-a3dc-caf21a8a0de8 | J.C. Duke & Associates General Contractors, Inc. v. Myrita West | N/A | 1051732 | Alabama | Alabama Supreme Court | REL:03/14/08
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, 2007-2008
_________________________
1051732
_________________________
J.C. Duke & Associates General Contractors, Inc.
v.
Myrita West
Appeal from Mobile Circuit Court
(CV-03-3968)
BOLIN, Justice.
The
plaintiff,
J.C.
Duke
&
Associates
General
Contractors, Inc., appeals from the trial court's dismissal of
one of the defendants, Myrita West, on the grounds of lack of
personal jurisdiction. We reverse and remand.
1051732
2
Facts and Procedural History
On November 18, 2003, J.C. Duke sued Clements-West
Construction, Inc., and Terry Clements, the president of
Clements-West. J.C. Duke alleged that in operating as the
general contractor renovating a high school in Mobile County,
it had entered into a contract with Clements-West to lay the
concrete block and brick for the project. J.C. Duke claimed
that it had overpaid Clements-West. The defendants filed an
answer and a counterclaim. On July 19, 2004, J.C. Duke
amended its complaint to add Myrita West, an officer and co-
owner of Clements-West, as a defendant. J.C. Duke alleged that
Terry Clements and Myrita West were brother and sister and
that they had used Clements-West "as their alter ego, having
set the corporation up as a subterfuge, failing to observe the
corporate form, failing to comply with corporate law, failing
to maintain corporate records and/or corporate bank accounts,
intermingling personal and corporate funds and using them for
personal
purposes,
and/or
draining
funds
from
the
corporation." J.C. Duke alleged that Clements-West was used as
a mere instrumentality or alter ego of Myrita West to gain
personal profits. On December 9, 2004, Clements-West filed in
1051732
3
the trial court a suggestion of Chapter 7 bankruptcy,
notifying the trial court that it had filed a petition in
bankruptcy on October 15, 2004, and that it was requesting a
stay of the trial court's proceedings. The trial court
granted the stay and set the stay for review in six months.
On December 9, 2004, Terry Clements also filed a suggestion of
Chapter 13 bankruptcy, notifying the trial court that he had
filed a petition in bankruptcy on October 15, 2004, and that
he was requesting a stay. The trial court granted the stay
and set the stay for review in 60 months.
Myrita was served with notice and, in response, filed a
motion entitled "Special Appearance Pro Se and Motion to
Dismiss for Lack of Jurisdiction." The motion has an Orlando,
Florida, address for Myrita. In the motion she asserted that
she was not a resident of Alabama, that she had no contacts
with the State of Alabama, and that she had never traveled to
Alabama for any purposes related to the allegations of the
complaint. Myrita stated that she was an officer of Clements-
West, but that "that is insufficient for [J.C. Duke] to obtain
personal jurisdiction over her, individually, in the State of
1051732
4
Alabama." Myrita did not file any affidavits in support of her
motion to dismiss.
J.C. Duke filed a response to the motion to dismiss.
Attached to its response were portions of Terry Clements's
deposition testimony in which Terry stated that Myrita was an
officer in Clements-West. J.C. Duke also presented records
from Clements-West's bankruptcy proceedings that indicated
that Myrita had loaned Clements-West over $400,000 and that
Clements-West sought to discharge those debts in bankruptcy.
On August 16, 2006, the trial court entered an order granting
Myrita's motion to dismiss and, at J.C. Duke's request, the
trial court certified the order as a final judgment pursuant
to Rule 54(b), Ala. R. Civ. P. J.C. Duke appeals.
Standard of Review
A de novo standard of review applies when an appellate
court reviews a trial court's judgment on a motion to dismiss
for lack of in personam jurisdiction. Hiller Invs. Inc. v.
Insultech Group, Inc., 957 So. 2d 1111 (Ala. 2006); Elliott
v. Van Kleef, 830 So. 2d 726 (Ala. 2002). The plaintiff has
the burden of proving that the trial court has personal
1051732
5
jurisdiction over the defendant. Ex parte Covington Pike
Dodge, Inc., 904 So. 2d 226 (Ala. 2004).
"'In considering a Rule 12(b)(2), Ala.
R. Civ. P., motion to dismiss for want of
personal
jurisdiction,
a
court
must
consider as true the allegations of the
plaintiff's complaint not controverted by
the defendant's affidavits. Robinson v.
Giamarco & Bill, P.C., 74 F.3d 253 (11th
Cir. 1996), and Cable/Home Communications
Corp. v. Network Productions, Inc., 902
F.2d 829 (11th Cir. 1990), and "where the
plaintiff's complaint and the defendant's
affidavits conflict, the ... court must
construe all reasonable inferences in favor
of the plaintiff." Robinson, 74 F.3d at
255 (quoting Madara v. Hall, 916 F.2d 1510,
1514 (11th Cir. 1990)). "For purposes of
this appeal [on the issue of in personam
jurisdiction] the facts as alleged by the
... plaintiff will be considered in a light
most favorable to the him [or her]." Duke
v. Young, 496 So. 2d 37, 38 (Ala. 1986).'
"Ex parte McInnis, 820 So. 2d 795, 798 (Ala. 2001)."
Ex parte Puccio, 923 So. 2d 1069, 1072 (Ala. 2005). When a
defendant files a motion to dismiss for lack of personal
jurisdiction and supports that motion with an affidavit, the
plaintiff is then required to controvert that affidavit with
his or her own affidavit or other competent evidence to
survive the motion to dismiss. Ex parte Duck Boo Int'l Co.,
[Ms. 1061114, November 16, 2007] So. 2d (Ala. 2007).
1051732
6
Even though Myrita filed no affidavit with her motion to
dismiss, J.C. Duke responded to her motion with an affidavit.
Discussion
With regard to personal jurisdiction, this Court has
stated:
"Rule 4.2(b), Ala. R. Civ. P., Alabama's 'long-
arm' provision, governs whether an Alabama court may
exercise personal jurisdiction over an out-of-state
defendant. In pertinent part, that rule states:
"'(b) Basis for Out-of-State Service.
An appropriate basis exists for service of
process outside of this state upon a person
or entity in any action in this state when
the person or entity has such contacts with
this state that the prosecution of the
action against the person or entity in this
state
is
not
inconsistent
with
the
constitution
of
this
state
or
the
Constitution of the United States ....'
"This rule extends the personal jurisdiction of
Alabama courts to the limit of due process under the
United
States
and Alabama Constitutions. When
applying Rule 4.2(b), this Court has interpreted the
due
process
guaranteed
under
the
Alabama
Constitution as coextensive with that guaranteed
under the United States Constitution. See Elliott
[v. Van Kleef], 830 So. 2d [726] at 730 [(Ala.
2004)].
"The analytical framework applicable here was
thoroughly described in Elliott:
"'The
Due
Process
Clause
of
the
Fourteenth Amendment permits a forum state
to subject a nonresident defendant to its
1051732
7
courts
only
when
that
defendant
has
sufficient "minimum contacts" with the
forum state. International Shoe Co. v.
Washington, 326 U.S. 310, 316, 66 S.Ct.
154, 90 L.Ed. 95 (1945). The critical
question with regard to the nonresident
defendant's
contacts
is
whether
the
contacts are such that the nonresident
defendant "'should reasonably anticipate
being haled into court'" in the forum
state. Burger King Corp. v. Rudzewicz, 471
U.S. 462, 473, 105 S.Ct. 2174, 85 L.Ed.2d
528 (1985), quoting World-Wide Volkswagen
Corp. v. Woodson, 444 U.S. 286, 295, 100
S.Ct. 559, 62 L.Ed.2d 490 (1980). The
sufficiency of a party's contacts are
assessed as follows:
"'"Two types of contacts can
form
a
basis
for
personal
jurisdiction: general contacts
and specific contacts. General
contacts, which give rise to
general
personal jurisdiction,
consist
of
the
defendant's
contacts with the forum state
that are unrelated to the cause
of action and that are both
'continuous
and
systematic.'
Helicopteros
Nacionales
de
Colombia, S.A. v. Hall, 466 U.S.
408, 414 n. 9, 415, 104 S.Ct.
1868, 80 L.Ed.2d 404 (1984);
[citations
omitted].
Specific
contacts, which give rise to
specific jurisdiction, consist of
the defendant's contacts with the
forum state that are related to
the cause of action. Burger King
Corp., 471 U.S. at 472-75, 105
S.Ct.
2174,
85
L.Ed.2d
528
(1985).
Although
the
related
1051732
8
contacts need not be continuous
and systematic, they must rise to
such a level as to cause the
defendant to anticipate being
haled into court in the forum
state. Id."
"'Ex parte Phase III Constr., Inc., 723 So.
2d 1263, 1266 (Ala. 1998) (Lyons, J.,
concurring in the result). Furthermore,
this Court has held that, for specific in
personam jurisdiction, there must exist "a
clear, firm nexus between the acts of the
defendant and the consequences complained
of." Duke v. Young, 496 So. 2d 37, 39 (Ala.
1986). ...
"'In the case of either general in
personam
jurisdiction
or
specific
in
personam jurisdiction, "[t]he 'substantial
connection' between the defendant and the
forum state necessary for a finding of
minimum contacts must come about by an
action
of
the
defendant
purposefully
directed toward the forum State." Asahi
Metal Indus. Co. v. Superior Court of
California, 480 U.S. 102, 112, 107 S.Ct.
1026,
94
L.Ed.2d
92
(1987).
This
purposeful-availment requirement assures
that a defendant will not be haled into a
jurisdiction
as
a
result
of
"'the
unilateral activity of another person or a
third person.'" Burger King, 471 U.S. at
475, 105 S.Ct. 2174, quoting Helicopteros
Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 417, 104 S.Ct. 1868, 80 L.Ed.2d
404 (1984).
"'Only after such minimum contacts
have been established does a court then
consider those contacts in the light of
other factors –- such as the burden on the
1051732
9
defendant of litigating in the forum state
and
the
forum
state's
interest
in
adjudicating the dispute, Burger King, 471
U.S. at 476-77, 105 S.Ct. 2174 –- to
determine whether the exercise of personal
jurisdiction
over
the
nonresident
defendant
comports with "'traditional notions of fair
play and substantial justice.'" Brooks v.
Inlow, 453 So. 2d 349, 351 (Ala. 1984),
quoting International Shoe, 326 U.S. at
316, 66 S.Ct. 154.'
"830 So.2d at 730-31."
Hiller Investments, 957 So. 2d at 1114-16 (emphasis omitted).
The threshold question presented here is whether, for the
purposes of a motion to dismiss, Myrita has sufficient minimum
contacts with Alabama so as to reasonably anticipate being
haled into court in Alabama in an action in which J.C. Duke
alleges that Clements-West, the corporation, is the alter ego
of Myrita, a corporate officer. We addressed a similar issue
in Ex parte Puccio, supra. Ex parte Puccio involved plaintiffs
who sued a nonprofit credit-counseling corporation and one of
its corporate officers, John Puccio. The plaintiffs alleged
that the corporation had made false representations regarding
a debt-management program. They argued that the corporation
acted as Puccio's alter ego to allow Puccio to avoid personal
liability and to gain personal profits for himself. Puccio
1051732
Although
personal
jurisdiction over an individual
1
corporate officer cannot be based solely on jurisdiction over
the
corporation,
a
corporate
agent
who
personally
participates, albeit in his capacity as such agent, in a tort
is personally liable for the tort, and the status as an agent
of the corporation does not insulate the agent personally from
his jurisdictional contacts with a state. See Ex parte
McInnis, 820 So. 2d 795 (Ala. 2001)(holding that two
nonresident corporate officers had sufficient contacts with
Alabama to support exercise of personal jurisdiction in a
products-liability action arising from a fatal explosion where
the corporate officers had made trips to Alabama to develop
this state as a market).
10
filed a motion to dismiss, arguing that he lacked sufficient
minimum contacts with Alabama to satisfy the requirements of
personal jurisdiction. He argued that personal jurisdiction
over him as a corporate officer could not be based on the
trial court's jurisdiction over the corporation. Puccio
supported his motion to dismiss with an affidavit stating that
he had no financial interests in Alabama, that he had never
communicated with the plaintiffs, and that he had signed an
agreement between the plaintiffs and the corporation solely in
his capacity as president of the corporation.
The Puccio Court noted that personal jurisdiction over an
individual corporate officer could not be predicated upon
jurisdiction over the corporation. However, this Court held
1
that if a corporation is the alter ego of an individual, then
1051732
11
the court may disregard the corporate form and exercise
personal jurisdiction over the individual because attributing
the contacts to the individual defendant reflects the reality
that although the contacts were ostensibly those of the
corporation, the individual was the true actor. In his
affidavit, Puccio did not address the factual allegations in
the complaint addressing whether the corporation was Puccio's
alter ego. Rather, Puccio stated that he was not an Alabama
resident and that he did not have sufficient minimum contacts
with Alabama for the trial court to exercise jurisdiction over
him. "In construing the allegations in the [plaintiffs']
complaint not controverted by Puccio as true, as we are
required to do for the purposes of Puccio's motion to dismiss,
... we cannot say that the trial court erred in denying the
motion." Ex parte Puccio, 923 So. 2d at 1076.
In the present case, Myrita argued that J.C. Duke's
claims against her should be dismissed because she had no
contacts with the State of Alabama; she had never traveled to
Alabama for any purposes related to the transaction that is
the basis of the allegations of the complaint. She also
stated that she is an officer of Clements-West, but that her
1051732
12
status as a corporate officer alone is insufficient to support
personal jurisdiction. Myrita fails to deny J.C. Duke's
allegations that the trial court had personal jurisdiction
over her because Clements-West's contacts with Alabama were
sufficient to give the trial court jurisdiction over it and
Clements-West was the alter ego of Myrita and was controlled
by Myrita. The allegations in the complaint were not disputed
in any affidavit attached to the motion to dismiss, because
Myrita did not file an affidavit. Myrita has offered no
evidence to counter the allegations in J.C. Duke's complaint;
thus, these uncontroverted allegations establish the trial
court's personal jurisdiction. Therefore, the trial court
erred in dismissing J.C. Duke's action against Myrita for lack
of personal jurisdiction. Accordingly, the judgment of the
trial court is reversed, and the cause is remanded for
proceedings consistent with this opinion. We note that we
make no judgment concerning the merits of J.C. Duke's claims
against
Myrita.
Additionally,
the
issue
of
personal
jurisdiction may be raised again by a defendant who
appropriately persists in challenging it in his or her answer,
in a motion for a summary judgment, or at the trial on the
1051732
13
merits, where proof by substantial evidence may be necessary
to prove the plaintiff's jurisdictional allegations in the
complaint. Ex parte McInnis, 820 So. 2d 795 (Ala. 2001).
REVERSED AND REMANDED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | March 14, 2008 |
cd914ffd-5f81-40d1-a4ab-40ee071df5bc | Gallagher Bassett Services, Inc. v. Nelia D. Phillips, et al. | N/A | 1070416 | Alabama | Alabama Supreme Court | Rel: 04/11/08
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, 2007-2008
_________________________
1070416
_________________________
Gallagher Bassett Services, Inc.
v.
Nelia D. Phillips et al.
Appeal from Mobile Circuit Court
(CV-05-2326)
WOODALL, Justice.
Gallagher Bassett Services, Inc. ("Gallagher"), appeals
from an order denying its motion for permission to intervene
in an action by Nelia D. Phillips against Dr. John Patrick
Couch and Physician's Pain Specialist of Alabama, P.C.
1070416
2
("PPSA"), alleging medical malpractice. We dismiss the
appeal.
The dispositive facts are undisputed. On April 3, 2002,
Phillips fell from a ladder and fractured her left wrist. The
accident occurred while Phillips was in South Carolina engaged
in her employment with RGIS Inventory Specialists ("RGIS").
She
filed
a
claim
with
the
South
Carolina
Workers'
Compensation
Commission against RGIS and its workers'
compensation carrier, Gallagher, which began paying workers'
compensation and medical benefits.
The medical benefits included payment for treatment by
Dr. Couch for "complex regional pain syndrome of the left
upper extremity and hand." That treatment included the
surgical implantation on June 25, 2003, of a "spinal cord
stimulation device" to alleviate pain. On June 23, 2005,
however, after suffering a series of complications associated
with
the
implantation,
Phillips
commenced
a
medical-
malpractice action against Dr. Couch and PPSA.
Phillips did not apprise Gallagher or RGIS of the
litigation in the manner prescribed by S.C. Code 1976, § 42-1-
560(b). Nevertheless, RGIS learned of the action, and its
1070416
The parties dispute whether Dr. Couch and PPSA ever
1
received notice that Gallagher was asserting a lien on the
proceeds of any settlement or judgment. However, the
disposition of this appeal does not turn on the resolution of
that dispute.
3
attorney sent a letter dated April 12, 2006, to Phillips's
attorney, stating:
"I am the attorney representing [RGIS] and its
insurance carrier in the above-referenced workers'
compensation claim in South Carolina. It has come
to my attention that you are Nelia Phillips's
attorney in the medical malpractice claim against
[PPSA] and John Patrick Couch, M.D., case no. 05-
2326. Please allow this letter to serve as written
confirmation of my client's lien rights on any
settlement proceeds or judgment proceeds that may
arise from the medical malpractice case. I would
request that you contact me prior to any settlement
being finalized so that we may protect our lien.
Please feel free to call me if you have any
questions.
"Very truly yours,
"[Signature]
"Brian O'Keefe
"BGO/kna
"cc:
Diane Brohman, Gallagher Bassett Services,
Inc. (via e-mail & U.S. mail)
Wesley
Pipes,
Esquire,
Wesley
Pipes,
LLC
[attorney for Dr. Couch and PPSA]"
(Emphasis added.)
1
1070416
4
On July 13, 2006, the attorney for RGIS and Gallagher
addressed another letter to Phillips's attorney, stating, in
pertinent part:
"I have been asked to represent the interests of
Ms. Nelia Phillips's employer and its workers'
compensation insurance carrier with regard to their
statutory lien against any recovery had by Ms.
Phillips in the above referenced third-party action.
As we discussed, Section 25-5-11 of the Alabama
Workers' Compensation Act provides the employer and
its workers' compensation insurance carrier with a
statutory lien against any recovery had by the
employee which is to provide both reimbursement for
disability and medical benefits paid to or on behalf
of the employee by the employer/carrier and as a
credit
against
the
employer/carrier's
future
liability for both disability and medical benefits.
The employer/carrier has paid out $47,139.28 to Ms.
Phillips for disability benefits and has paid out
$292,680.01 for medical treatment provided to Ms.
Phillips.
"On behalf of the employer [RGIS] and its
workers'
compensation
insurance
carrier,
[Gallagher], I am asking that you and Ms. Phillips
agree to protect my client's lien against any
recovery had by Ms. Phillips in the above referenced
third-party action. As we discussed, if we are
unable to obtain such agreement from you and Ms.
Phillips with regard to the employer/carrier's lien,
I will have no alternative but to proceed with
filing a complaint in intervention in order to
assert and protect the employer/carrier's lien."
Phillips's attorney responded with a letter dated July
18, 2006, stating, in pertinent part:
1070416
5
"I briefly reviewed § 25-5-11 in response to
your letter. I am certainly no workers' comp.
expert but I fail to see how that section provides
a subrogation interest in Ms. Phillips's medical
negligence case. Please enlighten me with the
specific provisions you are referring to and/or case
law concerning same.
"Secondly, are you aware that Ms. Phillips and
her employer were both based in Myrtle Beach, South
Carolina, at the time of the fall? I don't see how
§ 25-5-11 applies to this situation."
In September 2007, the parties in Phillips's medical-
malpractice action agreed to a settlement and, on October 18,
2007, filed the following joint "stipulation of dismissal with
prejudice": "Pursuant to Alabama Rules of Civil Procedure
41(a)(1), all parties who have appeared in this action,
Plaintiff, Nelia D. Phillips, and Defendants, [PPSA] and [Dr.
Couch], stipulate to the dismissal on the merits, with
prejudice, of Defendants, [PPSA] and [Dr. Couch]."
The next day, October 19, 2006, Gallagher filed a "motion
for leave to intervene" and a proposed complaint in
intervention. The complaint "demand[ed] satisfaction of its
statutory workers' compensation subrogation lien." On October
26, 2007, the trial court denied Gallagher's motion, and
Gallagher appealed.
1070416
6
On appeal, Gallagher contends that the trial court
exceeded its discretion in denying its motion for permission
to "intervene to protect its statutory lien following the
settlement of the underlying medical-malpractice case."
Gallagher's brief, at vii. According to Gallagher, its right
to intervene arises under S.C. Code 1976, § 42-1-560(b), which
provides, in pertinent part:
"The injured employee or, in the event of his death,
his dependents, shall be entitled to receive the
compensation and other benefits provided by this
Title and to enforce by appropriate proceedings his
or their rights against the third party .... In
such case the carrier shall have a lien on the
proceeds of any recovery from the third party
whether by judgment, settlement or otherwise, to the
extent
of
the
total
amount
of
compensation,
including medical and other expenses, paid, or to be
paid by such carrier ...."
(Emphasis added.)
Dr. Couch, PPSA, and Phillips, on the other hand, insist
that this appeal must be dismissed, because, they say, the
stipulation of dismissal terminated the medical-malpractice
action, rendering void the order challenged by Gallagher, from
which no appeal may lie. For that proposition, they cite
Greene v. Town of Cedar Bluff, 965 So. 2d 773 (Ala. 2007). We
agree.
1070416
7
Greene stands for the proposition that there is no right
of appeal from the denial of a motion to intervene in a
defunct action. The action in Greene was between the Citizens
Caring for Children and the Town of Cedar Bluff ("the Town"),
including its mayor, and challenged the constitutionality of
Act No. 2003-362, Ala. Acts 2003, which authorized the Town
"to determine by a local-option election whether alcoholic
beverages could be legally sold and distributed within the
municipality." 965 So. 2d at 774. On February 24, 2005, all
parties "filed a joint stipulation of dismissal ... with
prejudice." 965 So. 2d at 775. The trial court in Greene,
however, "decline[d] to dismiss the ... action pending further
orders," and, on October 19, 2005, William Geral Greene "filed
a motion to intervene in the ... action together with a
proposed complaint in intervention." 965 So. 2d at 775
(emphasis added). The trial court denied the motion, and
Greene appealed.
The issue pertinent to this case is the effect of the
joint stipulation of dismissal. "The Town argue[d] that the
stipulation of dismissal filed by the parties terminated the
case as of the filing of the stipulation, and that the trial
1070416
8
court therefore did not have jurisdiction to enter any further
orders in the case." 965 So. 2d at 777 (emphasis added).
This Court agreed with the Town, holding that the filing of
the joint stipulation of dismissal on February 24, 2005,
deprived the trial court of jurisdiction and that orders
entered after the stipulation was filed were void, including
the order purporting to deny the motion to intervene. 965 So.
2d at 779. Consequently, the Court dismissed Greene's appeal
of that order on the ground that "'a void judgment will not
support an appeal.'" Id. (quoting Underwood v. State, 439 So.
2d 125, 128 (Ala. 1983)).
Gallagher does not address Greene; thus, it offers no
reason why the result should be different under these facts.
Rule 41(a)(1), Ala. R. Civ. P., provides, in pertinent part:
"Subject to the provisions of Rule 23(e), of Rule 66, and of
any statute of this state, an action may be dismissed by the
plaintiff without order of court ... by filing a stipulation
of dismissal signed by all parties who have appeared in the
action." (Emphasis added.) "Rule 41(a)(1) affords the trial
court no discretion." Ex parte Sealy, L.L.C., 904 So. 2d
1230, 1235 (Ala. 2004). "'The entry of such a stipulation of
1070416
9
dismissal is effective automatically and does not require
judicial approval.'" Hammond v. Brooks, 516 So. 2d 614, 616
(Ala. 1987) (quoting First Nat'l Bank of Toms River, N.J. v.
Marine City, Inc., 411 F.2d 674 (3d Cir. 1969)) (emphasis
added). "'[T]he effect of a voluntary dismissal ... is to
render the proceedings a nullity and leave the parties as if
the action had never been brought.'" Ex parte Sealy, 904 So.
2d at 1236(quoting In re Piper Aircraft Distrib. Sys.
Antitrust Litig., 551 F.2d 213, 219 (8th Cir. 1977))(emphasis
added).
After the stipulation of dismissal was filed in this
case, there ceased to be a justiciable controversy over which
the court had "continuing power." 904 So. 2d at 1235. Thus,
on October 19, 2006, when Gallagher filed its motion to
intervene, there was no case in which Gallagher could
intervene. The trial court thus lacked authority over
Gallagher's motion, either to grant or deny it. It follows
that its order denying Gallagher's motion is void. Because a
void order or judgment will not support an appeal, Greene, 965
So. 2d at 779, this appeal must be dismissed.
APPEAL DISMISSED.
Cobb, C.J., and See, Smith, and Parker, JJ., concur. | April 11, 2008 |
d989bcdc-b4c3-40e4-8b48-c714bef0e141 | TradeWinds Environmental Restoration, Inc. v. Brown Brothers Construction, L.L.C., et al | N/A | 1060305 | Alabama | Alabama Supreme Court | REL: 6/13/08
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, 2007-2008
_________________________
1060305
_________________________
TradeWinds Environmental Restoration, Inc.
v.
Brown Brothers Construction, L.L.C., et al.
Appeal from Baldwin Circuit Court
(CV-05-412)
SEE, Justice.
TradeWinds
Environmental
Restoration,
Inc.
("TradeWinds"), brought this action against Brown Brothers
Construction, L.L.C. ("BBC"), the Shoalwater Condominium
Association, Inc. ("Shoalwater"), and the Windward Pointe
1060305
2
Condominium
Association,
Inc.
("Windward"),
in
connection
with
structural-drying
work performed by TradeWinds at the
Shoalwater condominiums and the Windward Pointe condominiums
following Hurricane Ivan. BBC, Shoalwater, and Windward moved
the Baldwin Circuit Court for a summary judgment, asserting
that TradeWinds' claims were barred by § 10-2B-15.02, Ala.
Code
1975
(Alabama's
"door-closing"
statute),
because
TradeWinds is a foreign corporation that had not qualified to
do business in this State. The trial court entered a summary
judgment
in
favor
of
BBC,
Shoalwater,
and
Windward.
TradeWinds appeals, arguing that § 10-2B-15.02, Ala. Code
1975, does not preclude TradeWinds from bringing its claims
and that, if Alabama's door-closing statute applies, BBC,
Shoalwater, and Windward are equitably estopped from asserting
the statute as a defense because the parties received benefits
under a contract for which they did not pay. We affirm.
Facts and Procedural History
TradeWinds is a New York-based company that performs
post-disaster
response,
environmental
remediation,
and
restoration services. Following the landfall of Hurricane
Ivan in September 2004, BBC, an Alabama-based general
1060305
Section 10-2B-15.02(a), Ala. Code 1975, provides:
1
"(a) A foreign corporation transacting business
in this state without a certificate of authority or
3
contractor, entered into a contract with TradeWinds under
which TradeWinds would perform structural-drying services and
restoration at a number of condominiums along the Gulf Coast,
including
Shoalwater
condominiums
and
Windward
Pointe
condominiums ("the contract"). TradeWinds asserts that it
completed the work contemplated by the contract but that BBC
refused to pay TradeWinds the amount TradeWinds says is due
under the contract. TradeWinds recorded verified statements
of lien in the office of the judge of probate of Baldwin
County against the Windward and Shoalwater properties, seeking
$210,024.75 and $188,814.25, respectively, for money owed
under the contract. TradeWinds also filed this action in the
Baldwin Circuit Court alleging a breach-of-contract claim
against BBC, asserting unjust-enrichment claims against
Shoalwater and Windward, and seeking to foreclose on its liens
on the Shoalwater and Windward properties.
BBC, Shoalwater, and Windward moved the trial court for
a summary judgment, asserting that TradeWinds' claims were
barred by § 10-2B-15.02, Ala. Code 1975, because TradeWinds
1
1060305
without complying with Chapter 14A of Title 40 may
not maintain a proceeding in this state without a
certificate
of
authority.
All
contracts
or
agreements made or entered into in this state by
foreign
corporations
prior
to
obtaining
a
certificate of authority to transact business in
this state shall be held void at the action of the
foreign corporation or by any person claiming
through or under the foreign corporation by virtue
of the contract or agreement; but nothing in this
section shall abrogate the equitable rule that he
who seeks equity must do equity."
4
is a foreign corporation that had not qualified to do business
in Alabama. TradeWinds argued that the contract involved
interstate commerce and, therefore, that the contract is
protected from § 10-2B-15.02 by the Commerce Clause of the
Constitution of the United States, U.S. Const., Art. 1, § 8,
cl. 3. The trial court agreed with BBC, Shoalwater, and
Windward that it was undisputed that TradeWinds had failed to
obtain a certificate of authority from the secretary of state
in order to transact business in Alabama and that BBC,
Shoalwater, and Windward were entitled to a judgment as a
matter of law. It then entered a summary judgment in favor of
BBC, Shoalwater, and Windward. TradeWinds moved the trial
court to alter, amend, or vacate its judgment, but the trial
court denied that motion. TradeWinds appeals.
Issues
1060305
5
TradeWinds presents two issues for appeal. First,
TradeWinds argues that the trial court erred when it entered
a summary judgment in favor of BBC, Shoalwater, and Windward
on the basis of the door-closing statute, because, TradeWinds
argues, the contract involved
interstate
commerce
and
therefore the door-closing statute is not applicable. Second,
TradeWinds asserts that, even if the door-closing statute does
apply, equitable estoppel bars its application because BBC,
Shoalwater, and Windward received benefits under the contract
for which they did not pay.
Analysis
A. Standard of Review
"On appeal, this Court reviews a summary judgment de
novo." DiBiasi v. Joe Wheeler Elec. Membership Corp., [Ms.
1060848, Jan. 10, 2008] ___ So. 2d ___, ___ (Ala. 2008)
(citing Ex parte Essary, [Ms. 1060458, Nov. 2, 2007] ___ So.
2d ___, ___ (Ala. 2007)). "'"Our review [of a summary
judgment] is subject to the caveat that we must review the
record in the light most favorable to the nonmovant and must
resolve all reasonable doubts against the movant."'" Ex parte
CSX Transp., Inc., 938 So. 2d 959, 962 (Ala. 2006) (quoting
1060305
6
Payton v. Monsanto Co., 801 So. 2d 829, 833 (Ala. 2001),
quoting in turn Ex parte Alfa Mut. Gen. Ins. Co., 742 So. 2d
182, 184 (Ala. 1999)); Hanners v. Balfour Guthrie, Inc., 564
So. 2d 412, 413 (Ala. 1990). "The facts in this case are
undisputed; therefore, we will review the trial court's
application of the law to those facts to determine whether the
plaintiffs were entitled to a judgment as a matter of law."
Carpenter v. Davis, 688 So. 2d 256, 258 (Ala. 1997). "The
trial court's ruling on a question of law carries no
presumption of correctness, and this Court reviews de novo the
trial court's 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).
A. TradeWinds' Door-Closing Argument
The trial court entered a summary judgment in favor of
BBC, Shoalwater, and Windward because it found, as a matter of
law, that TradeWinds' action is "barred by the [door-closing]
statute, in that[] [TradeWinds] was required to obtain a
Certificate of Authority from the secretary of State to
transact business in Alabama and failed to do so." (Trial
court's summary-judgment order.)
1060305
7
To determine whether the trial court properly entered a
summary judgment in favor of BBC, Shoalwater, and Windward on
the basis that TradeWinds' claims are barred, we must address
§ 10-2B-15.02, Ala. Code 1975, Alabama's door-closing statute.
Section 10-2B-15.02(a) provides:
"(a) A foreign corporation transacting business
in this state without a certificate of authority or
without complying with Chapter 14A of Title 40 may
not maintain a proceeding in this state without a
certificate
of
authority.
All
contracts
or
agreements made or entered into in this state by
foreign
corporations
prior
to
obtaining
a
certificate of authority to transact business in
this state shall be held void at the action of the
foreign corporation or by any person claiming
through or under the foreign corporation by virtue
of the contract or agreement; but nothing in this
section shall abrogate the equitable rule that he
who seeks equity must do equity."
"This section of the Code is part of a statutory scheme that
requires foreign corporations to receive a certificate of
authority to do business in this State before transacting
business here." Green Tree Acceptance, Inc. v. Blalock, 525
So. 2d 1366, 1370 (Ala. 1988). "Failure to secure such a
certificate means that the foreign corporation cannot enforce
a contract entered into in this State." 525 So. 2d at 1370.
"A foreign corporation that has not been authorized to do
business in Alabama is not barred from enforcing its contracts
1060305
8
in the courts of this state, however, 'unless the business
conducted
here
by
[the] nonqualified corporation[] is
considered "intrastate" in nature.'" Building Maintenance
Pers., Inc. v. International Shipbuilding, Inc., 621 So. 2d
1303, 1304 (Ala. 1993) (quoting Wise v. Grumman Credit Corp.,
603 So. 2d 952, 953 (Ala. 1992)). This is because "businesses
engaged in interstate commerce are protected by the commerce
clause in the United States Constitution, U.S. Const., Art. 1,
§ 8, cl. 3, and are therefore immune from the effects of the
'door closing' statutes." Stewart Mach. & Eng'g Co. v.
Checkers Drive In Rests. of N. America, Inc., 575 So. 2d 1072,
1074 (Ala. 1991). Because TradeWinds concedes that it was not
qualified to do business in Alabama at the time the contract
was entered into, or, for that matter, at the time of
performance under the contract, "the focus of this case is on
whether [TradeWinds] was engaged in interstate or intrastate
commerce; this issue is ultimately decided on a case-by-case
basis." Stewart Mach. & Eng'g, 575 So. 2d at 1074. "[I]n
determining whether a corporation is doing business in Alabama
within the meaning of § [10-2B-15.02], courts are flexible and
1060305
9
decide each case on its own facts." Green Tree Acceptance,
525 So. 2d at 1370.
In Ely Lilly & Co. v. Sav-On-Drugs, Inc., 366 U.S. 276
(1961), the Supreme Court of the United States addressed when
a state may require a foreign corporation to obtain a
certificate of authority to do business in the state. The
Supreme Court stated:
"Lilly is free to send salesmen into New Jersey to
promote this interstate trade without interference
from regulations imposed by the State. On the other
hand, it is equally well settled that if Lilly is
engaged in intrastate as well as interstate aspects
of the New Jersey drug business, the State can
require it to get a certificate of authority to do
business. In such a situation, Lilly could not
escape state regulation merely because it is also
engaged in interstate commerce. We must then look
to the record to determine whether Lilly is engaged
in intrastate commerce in New Jersey."
366 U.S. at 279 (footnote omitted). Alabama caselaw also
holds that § 10-2B-15.02, Ala. Code 1975, is applicable to
those entities that engage in intrastate business and fail to
register. See Brown v. Pool Depot, Inc., 853 So. 2d 181, 185
(Ala. 2002) ("'It has been held that a foreign corporation
doing business in this state without qualifying cannot use our
courts to enforce its contracts. Continental Telephone Corp.
v. Weaver, 410 F.2d 1196 (5th Cir. 1969). Alabama Const. art.
1060305
10
XII, § 232, and §§ 10-2A-247 and 40-14-4, Code 1975 [now
codified
as
10-2B-15.02,
Ala.
Code
1975]
prohibit
a
nonqualified foreign corporation from enforcing a contract
made in Alabama if it is doing business in Alabama.'" (quoting
Competitive Edge, Inc. v. Tony Moore Buick-GMC, Inc., 490 So.
2d 1242, 1244-45 (Ala. Civ. App.1986))). Thus, whether § 10-
2B-15.02 applies to a contract involving a foreign corporation
turns on whether the foreign corporation, whether or not
engaged in interstate commerce, is engaged in intrastate
business.
BBC, Shoalwater, and Windward argued to the trial court
that the contract is ultimately a construction contract and
that it thus necessarily implicates intrastate business. "One
area of business is quite clearly defined as intrastate,
rather than interstate, activity. This Court has previously
held that 'labor is not an article of commerce, nor is the
agreement to supply it, nor the execution of the agreement, an
act of commerce.'" Green Tree Acceptance, 525 So. 2d 1370
(quoting Computaflor Co. v. N.L. Blaum Constr. Co., 289 Ala.
65, 68, 265 So.2d 850, 852 (1972)). Thus, "[a] construction
contract supplying both material and labor is an example of
1060305
11
the type of contract that is considered intrastate." Green
Tree Acceptance, 525 So. 2d at 1371. BBC, Shoalwater, and
Windward point to TradeWinds' complaint as evidence that the
contract in this case is, in fact, a construction contract.
In its complaint, TradeWinds alleges that "[BBC] entered into
an agreement with [TradeWinds] retaining the services of
[TradeWinds] to provide structural drying services" and that
"[BBC] retained the services of [TradeWinds] to provide
services, labor and materials including structural drying" at
both
Shoalwater
condominiums
and
Windward
Pointe
condominiums.
TradeWinds
argues,
however,
that
this
Court
has
specifically rejected a per se rule that a contract in which
a foreign corporation supplies labor and materials necessarily
involves intrastate business. TradeWinds' brief at 29
(quoting Stewart Mach. & Eng'g, 575 So. 2d at 1074 ("[N]ot
every contract that provides for labor is automatically deemed
to involve intrastate commerce.")). TradeWinds contends that
"where a transaction calls on an out-of-state company to
perform unique or specialized labor, as opposed to general
construction, that labor is 'necessary and incidental' to the
interstate business ... and the [contract] is protected by the
1060305
12
commerce clause." TradeWinds cites Wallace Construction Co.
v. Industrial Boiler Co., 470 So. 2d 1151 (Ala. 1985), in
which "Wallace was the successful bidder for a contract with
the University of Montevallo for, among other things, the
installation of a heating system at the school." Wallace
Construction, 470 So. 2d 1151. Industrial Boiler, a
subcontractor, "agreed to manufacture and install [a] boiler
system," id.; however, Wallace refused to pay under the
agreement and asserted § 10-2A-247 (now § 10-2B-15.02) as a
defense. This Court determined that the contract involved
interstate commerce because "the combined local activities of
Industrial Boiler in Alabama concerning the assembly and
installation of the boiler did not constitute intrastate
business, but were necessary and incidental to the interstate
sale of the boiler itself." Wallace Construction, 470 So. 2d
at 1155.
As TradeWinds alleges in its complaint, it provided
"services, labor and materials including structural drying."
Although it may be true that TradeWinds "[brought] its drying
equipment
from
out-of-state
for
use
at
[Shoalwater
condominiums and Windward Pointe condominiums]," it does not
1060305
13
allege that its labor, materials, and service were incident to
an interstate sale. Therefore, Wallace Construction is
inapposite.
TradeWinds also relies on Shook & Fletcher Insulation Co.
v. Panel Systems, Inc., 784 F.2d 1566 (11th Cir. 1986).
TradeWinds argues that in Shook & Fletcher the United States
Court of Appeals for the Eleventh Circuit "affirmed the lower
court's
decision
that
a
subcontractor
was
not
doing
'substantial business' in Alabama simply because it sent its
employees into the state pursuant to the contract." However,
Shook & Fletcher also involved labor and materials incident to
an interstate sale. See Shook & Fletcher, 784 F.2d at 1570
("PSI fabricated all of its insulation panels for the Miller
project at its facilities in Hurricane Mills, Tennessee. ...
In this case, PSI's primary duty under its contract with Shook
and Fletcher was to sell and deliver materials into Alabama.
Most of PSI's travels into the state of Alabama involved
negotiations and troubleshooting as opposed to performing
contractual
services.").
Therefore,
like
Wallace
Construction,
Shook
&
Fletcher
is distinguishable and
therefore inapposite.
1060305
14
TradeWinds further relies on Kentucky Galvanizing Co. v.
Continental Casualty Co., 335 So. 2d 649 (Ala. 1976).
However, Kentucky Galvanizing Co., too, involved a foreign
corporation that manufactured and delivered goods incident to
an interstate contract for the sale of goods. The Court there
noted
"that Galvanizing has never manufactured, fabricated
or installed any materials in the State of Alabama.
What it has sold to buyers in Alabama it has
delivered to the assigned job sites. Other than
delivery, Galvanizing does nothing in Alabama except
what is incident to soliciting and taking orders for
shipment of goods in interstate commerce and
delivery of these goods."
335 So. 2d at 651. In fact, Kentucky Galvanizing Co.
recognized
that
this Court "has distinguished between
contracts requiring only the furnishing of materials, and
contracts requiring the seller to perform construction
activities. When the transaction requires only sale and
delivery of the materials, we have held it to be within the
scope of interstate commerce ...." 335 So. 2d at 651.
Therefore,
Kentucky
Galvanizing
Co.
does
not
support
TradeWinds contention that services, labor, and materials,
which TradeWinds provided under the contract, were incident to
an interstate sale.
1060305
15
In this case, TradeWinds and BBC "entered into an
agreement ... retaining the services of [TradeWinds] to
provide
structural
drying
services"
and
"provid[ing]
services,
labor,
and
materials,
including structural drying" at
Shoalwater condominiums and Windward Pointe condominiums, two
locations in Alabama. It appears that the contract does, in
fact, involve "both material and labor [and] is an example of
the type of contract that is considered intrastate." Green
Tree Acceptance, 525 So. 2d at 1371. Thus, we conclude that
TradeWinds has not demonstrated that the contract was not
intrastate in nature. Therefore, § 10-2B-15.02, Ala. Code
1975, bars TradeWinds' breach-of-contract action, and the
trial court properly entered a summary judgment in favor of
BBC on the basis that BBC was entitled to a judgment as a
matter of law.
B. TradeWinds' Equitable Claims and Arguments
TradeWinds argues that, even if this Court holds that the
contract is intrastate in nature and thus that the door-
closing statute applies, "equity bars the defendants from
asserting the door-closing statute in this case." More
specifically, TradeWinds asserts that
1060305
16
"the evidence shows that TradeWinds rushed into
Alabama after Hurricane Ivan based on the request of
BBC ... that it came on an emergency, expedited
basis [to] perform time-sensitive disaster response
services .... Having solicited TradeWinds to
respond on an emergency basis, it is plainly
inequitable
for
the
defendants
to
now
use
TradeWinds' decision to comply with their request as
a reason to withhold payment for the services
TradeWinds performed."
TradeWinds' brief at 42. Although the result may be harsh, we
hold in this case, as we have in others, that TradeWinds "as
a nonqualified foreign corporation[] should not be allowed to
proceed in the Alabama court system to recover under any
theory sounding in contract." Sanwa Bus. Credit Corp. v. G.B.
"Boots" Smith Corp., 548 So. 2d 1336, 1341 (Ala. 1989). See
also Stewart Mach. & Eng'g, 575 So. 2d at 1075 ("Although we
are mindful of the harshness of the rule, we conclude, based
on the foregoing, that Stewart, as a nonqualified foreign
corporation, should not be allowed to proceed in the Alabama
court system to recover under any theory sounding in
contract."); Sanjay, Inc. v. Duncan Constr. Co., 445 So. 2d
876, 879 (Ala. 1983) ("[The equity] provision in the statute
does not alter the law that an unqualified foreign corporation
cannot recover on contract. As was said of the action in C.C.
Products, Inc. v. Premier Industrial Corp., 290 Ala. 179, 275
1060305
TradeWinds' complaint does not appear to assert any
2
equitable claims against BBC, with whom it contracted;
however, TradeWinds' principal brief suggests that equitable
considerations apply to its claims against BBC, Shoalwater,
and Windward.
17
So. 2d 124 (1972), any way you slice it, the action in this
suit was ex contractu."). Therefore, TradeWinds is barred
from bringing its breach-of-contract claim against BBC either
at law or in equity.
2
TradeWinds, however, also asserted a claim of "unjust
enrichment" against both Shoalwater and Windward and sought to
foreclose its lien against both properties. In support of
these claims, TradeWinds relies on First Bank of Russell
1060305
TradeWinds also relies on Pool Depot, 853 So. 2d at 187,
3
in which this Court held that "Brown's [the Alabama
resident's] suing Pool Depot for fraud and tortious attempt to
collect a debt and opposing arbitration of these claims is not
an unlawful attempt to 'accept the benefits and avoid the
burdens or limitations of a contract. Brown does not seek any
benefit whatsoever under the contract,' which Brown contends
is void." (Citations omitted.) It appears, however, that Pool
Depot was applying the final portion of § 10-2B-15.02(a),
which provides that "nothing in this section shall abrogate
the equitable rule that he who seeks equity must do equity";
this Court was noting that Brown's claims were proper because
Brown sought recovery on a claim wholly unrelated to the
contract and, thus, it was not inequitable for Brown to
recover under those claims after he used § 10-2B-15.02, Ala.
Code 1975, to void his contract with a foreign corporation.
Pool Depot does not further TradeWinds' argument that it is
entitled to recover under principles of equity from any of
BBC, Shoalwater, or Windward.
18
County v. Wells, 358 So. 2d 435 (Ala. 1978). In First Bank
3
of Russell County, this Court stated:
"Statutes such as ours which declare void, at
the action of a nonqualified foreign corporation (or
any person claiming under such corporation), all
contracts or agreements entered into in this state
are not only penal, but are, as well, in derogation
of the common law. They, therefore, should be
strictly construed. Sayers & Muir Service Station v.
Indian Refining Co., 266 Ky. 779, 100 S.W.2d 687
(1936), cited with approval in Jones v. Americar,
Inc., [283 Ala. 638, 219 So. 2d 893 (1969)]. They
should not be read so as to deny to litigants
equitable
rights
long
recognized
by
our
jurisprudence. To deny to the Builder in the
instant case the relief it seeks because of §
10-2-254, 1975 Code [now § 10-2B-15.02], would not
only result in a decision which would unjustly
enrich the Wells[es] but would also read into the
statute a prohibition which is not there."
1060305
19
358 So. 2d at 437. Our later decisions, though, have not
followed this holding. See Burnett v. National Stonehenge
Corp., 694 So. 2d 1276, 1279 (Ala. 1997) ("To allow Stonehenge
to recover under the theory that equity requires the Insurance
Department to pay Stonehenge for its services, even though
Stonehenge never qualified to do business in Alabama, would
circumvent § 10-2A-247 [now § 10-2B-15.02]. This Court's prior
decisions on this matter have made it clear that foreign
corporations cannot circumvent the penal effect of the statute
by labeling their claim as something other than [a] contract
claim." (citing Green Tree Acceptance, 525 So. 2d at 1372)).
TradeWinds argues that § 10-2B-15.02, Ala. Code 1975, should
be narrowly construed because it is penal in nature.
TradeWinds' reply brief at 17. This issue was squarely
addressed in Freeman Webb Investments, Inc. v. Hale, 536 So.
2d 30, 31 (Ala. 1988), in which this Court noted that "due to
the penal nature of this statute ... its application has been
limited to those cases in which the action is ex contractu as
opposed to ex delicto." 536 So. 2d at 31. The Freeman Webb
decision then went on to address Freeman Webb's remaining
equitable claims, one of which was unjust enrichment, and held
1060305
20
that, "[w]ith regard to the claims of conversion and unjust
enrichment, it is clear that these claims merely seek to
enforce those rights derived directly from the contract, and
are, therefore, prohibited." Id. As in Freeman Webb,
TradeWinds' unjust-enrichment and lien claims seek to enforce
those rights derived directly from the contract, that is,
TradeWinds seeks to recover from Shoalwater and Windward
payment for services performed by TradeWinds pursuant to the
contract. Therefore, these claims are also prohibited under
§ 10-2B-15.02, Ala. Code 1975.
Conclusion
Section 10-2B-15.02, Ala. Code 1975, prohibits all
TradeWinds' claims; therefore, BBC, Shoalwater, and Windward
were entitled to a summary judgment on its claims against
them, and we affirm the summary judgment.
AFFIRMED.
Cobb, C.J., and Lyons, Woodall, Stuart, Smith, Bolin, and
Murdock, JJ., concur.
Parker, J., dissents. | June 13, 2008 |
c30d6bf5-ff15-4816-9b6a-f1722124c2ab | Ex parte Wesley E. Dekle and Sharon R. Dekle. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Wesley E. Dekle and Sharon R. Dekle v. M. Lee Seagraves and Susan Seagraves) | N/A | 1051659 | Alabama | Alabama Supreme Court | Rel: 04/11/2008
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, 2007-2008
____________________
1051659
____________________
Ex parte Wesley E. Dekle and Sharon R. Dekle
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Wesley E. Dekle and Sharon R. Dekle
v.
M. Lee Seagraves and Susan Seagraves)
(Tallapoosa Circuit Court, CV-03-44;
Court of Civil Appeals, 2040872)
PARKER, Justice.
I. Facts and Procedural History
This dispute concerns a prescriptive easement over
waterfront property on Lake Martin owned by Wesley E. Dekle
1051659
2
and Sharon R. Dekle, making the Dekles' lot servient to that
of their next-door neighbors, M. Lee Seagraves and Susan
Seagraves, for access to a boat ramp. Although the details of
the original property transfers are scant, the two parcels
were once owned by Alabama Power Company and were eventually
divided and sold as part of a subdivision in the 1990s.
The original owner of the Seagraveses' lot, the allegedly
dominant lot, after Alabama Power, was John R. Jones, who had
leased the lot from Alabama Power from the late 1970s. In the
1980s Jones built a concrete boat ramp on the allegedly
servient lot, i.e., the Dekles' lot. The Dekles bought the
allegedly servient lot from John P. Wachtel and Shirley A.
Wachtel in March 1996, and the Dekles claim to have agreed
with Jones that Jones would have the use of the boat ramp in
exchange for their use of his well for their domestic water.
City water service became available to the Dekles in early
1998, and when Jones died about that time, the Dekles
disconnected the waterlines from his well and considered the
alleged agreement to be terminated.
Jones's daughter, Cheryl C. Corlee, sold the property to
the Seagraveses on May 12, 1999, and the Seagraveses began
1051659
3
using the boat ramp on the Dekles' property. The Dekles did
not object, but they claim to have shown the Seagraveses the
property lines before they purchased the Jones property and to
have told them that the boat ramp, although close to the
property line, was on the Dekles' property. The Seagraveses
state that they did not meet the Dekles until a year after
they purchased the property. The Dekles' deed shows the lot to
be subject to "existing utility and ingress-egress easements
and the facilities thereon, whether or not of record, and
which would be disclosed by [an] inspection of the property;
also easements shown on recorded plat." Dekles' brief at 2. No
easement involving the boat ramp is recorded or included on
the plat.
When the Seagraveses poured a concrete drive from the
parking pad on their property to the boat ramp on the Dekles'
property, the Dekles notified Alabama Power that the
Seagraveses had infringed on Alabama Power's waterfront
easement. Eventually the Seagraveses removed the concrete, and
the Dekles erected a chain-link fence on the property line,
denying the Seagraveses access to the boat ramp. The
Seagraveses then sued the Dekles, alleging claims of
1051659
4
ejectment, trespass to easement, and negligence and seeking a
judgment declaring their right to the claimed easement.
Seagraveses' brief at 2. The Dekles answered with a general
denial and demanded a jury trial on all triable issues. The
Seagraveses dismissed the negligence and trespass counts
before the trial, leaving the statutory-ejectment claim and
the declaratory-judgment claim.
The statutory-ejectment claim and the declaratory-
judgment claim went to trial before a jury on March 9, 2005.
At trial, the Seagraveses claimed that they "and their
predecessors had been using the easement openly, notoriously,
adversely and continually for 'a period of in excess of twenty
years.'" Dekles' petition, exhibit C, at 3. At the close of
the Seagraveses' case-in-chief, the Dekles moved for a
judgment as a matter of law ("JML"), claiming that the
Seagraveses "had failed to prove their cause of action ...."
The trial court denied the motion for a JML, and the court
also denied the same motion when it was renewed at the close
of all evidence. The trial court then instructed the jury only
on the requirements for a prescriptive easement, because the
jury was required to find that an easement existed if
1051659
5
enforcement by declaratory judgment and ejectment was to be
ordered. The Dekles did not object to the jury charge,
allegedly because they believed that the jury could not find
that the Seagraveses had met all the elements required for a
prescriptive easement. The Dekles later claimed that their
renewed motion for a JML was based in part on the allegation
that no evidence of the alleged agreement with Jones, who was
deceased, was allowed into evidence. The alleged agreement was
discussed before the jury, however, and the trial court
allowed the evidence of the existence of the agreement,
instructing the jury that the testimony as to the Dekles'
alleged agreement with Jones was being allowed over the
Seagraveses' objection. The jury found that the Seagraveses
had obtained a prescriptive easement over the Dekles' property
to the boat ramp, apparently tacking the Seagraveses' use
onto Jones's use and finding the existence of the other
elements of prescription. The trial court entered a judgment
for the Seagraveses.
The Dekles appealed to the Court of Civil Appeals, which
affirmed the trial court's judgment, without an opinion,
citing as authority in its no-opinion affirmance State Farm
1051659
6
Mutual Automobile Insurance Co. v. Motley, 909 So. 2d 806,
822 (Ala. 2005); Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So. 2d 949 (Ala. 2004); Crutcher v. Wendy's of
North Alabama, Inc., 857 So. 2d 82, 97 (Ala. 2003); Johnny
Spradlin Auto Parts, Inc. v. Cochran, 568 So. 2d 738, 741
(Ala. 1990); and Hampton v. Magnolia Trucking Co., 338 F.2d
303, 306 (5th Cir. 1964). Dekle v. Seagraves (No. 2040872,
Feb. 17, 2006), ___ So. 2d ___ (Ala. Civ. App. 2006)(table).
The Dekles then petitioned this Court for certiorari review,
stating three grounds. We granted review only on the ground
alleging
that
the
Court
of
Civil
Appeals'
no-opinion
affirmance conflicts with decisions of this Court.
The
Dekles
present
four
issues
for
this
Court's
consideration:
1. Did the Court of Civil Appeals err in apparently
determining that the Dekles failed to cite appropriate
authority in support of their position in their brief to
that court?
2.
Did the Court of Civil Appeals err in apparently
determining that the Dekles failed to properly preserve
certain issues for appellate review?
3.
Did the Court of Civil Appeals err in apparently
determining that the Dekles had improperly raised issues
for the first time on appeal?
4.
Did the Court of Civil Appeals err in deciding the case
1051659
7
based on an allegedly improper standard of review?
II. Standard of Review
The Dekles in their petition ask this Court to review
four legal issues raised by the no-opinion affirmance of the
Court of Civil Appeals by virtue of the cases cited in that
no-opinion affirmance. We interpret the no-opinion affirmance
differently than do the Dekles, however, as we will explain
below. The determinative issue, as we see it, is the
reasoning behind the trial court's denial of the Dekles'
motions for a judgment as a matter of law.
"In reviewing a decision of the Court of Civil
Appeals on a petition for a writ of certiorari, 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)."
Ex parte Exxon Mobil Corp., 926 So. 2d 303, 308 (Ala. 2005).
A de novo review is "a review without any assumption of
correctness." King Mines Resort, Inc. v. Malachi Mining &
Minerals, Inc., 518 So. 2d 714, 716 (Ala. 1987).
III. Analysis
We granted certiorari review in this case to consider an
apparent conflict in the caselaw concerning the required
1051659
8
precision with which grounds must be stated in a renewed
motion for a JML or, alternatively, for a new trial, based on
insufficiency of the evidence.
The Dekles asserted in their motions for a JML that the
Seagraveses had failed to prove their cause of action. This
Court has held that it is not necessary for a plaintiff to
prove a cause of action by undisputed evidence to preclude a
JML; the plaintiff need merely to provide substantial evidence
that produces a conflict for resolution by the finder of fact.
"[The defendant] asserts that the trial court erred in
not granting it either a directed verdict at the close
of
the
plaintiff's
evidence
or
a
[judgment
notwithstanding the verdict] [both now renamed as
judgments as a matter of law], on grounds that [the
plaintiff] failed to prove ... an essential element of
a cause of action for breach of contract. We find,
upon examining the facts set out above, that there was
sufficient evidence before the trial court to produce
a conflict as to whether the eventual default ...
damaged [the plaintiff], and we hold, therefore, that
the
trial
court
did
not
err
in
denying
[the
defendant's]
motions
for
directed
verdict
and
[judgment notwithstanding the verdict]."
Bussey v. John Deere Co., 531 So. 2d 860, 863-64 (Ala. 1988).
Here, the trial court charged the jury on the elements of
a prescriptive easement as opposed to an easement by statutory
adverse possession, asking the jury to "look back over the
years and determine whether or not the facts and evidence show
1051659
9
that an easement was established under the law." The trial
court instructed the jury that "[t]o recover the ... property
right alleged to be lost ... the [Seagraveses] must prove to
the reasonable satisfaction of the jury, from the evidence
that the [Seagraveses] had the right to immediate use of the
easement alleged." It further instructed the jury that
"[p]rescription means that if a party is in possession
of a right to use property, and that the possession of
that right is hostile under claim of right, actual,
open, notorious, exclusive, continuous, visible and
uninterrupted for the prescriptive period of 20 years,
then the possession of that right ripens into a
legally recognized interest in the property."
The elemental terms were defined in detail to convey the
legal meaning of each term to the jury. The trial court then
defined the prescriptive period of 20 years as meaning "20
years of the current person claiming the right and his
predecessors who have claimed the same right."
In the Court of Civil Appeals, the Dekles argued that
there were two reasons the requirement for a 20-year
prescriptive period was not met: first, the period would have
begun to run "before the lots were platted and sold by Alabama
Power, [because] before that time the boat ramp was not
adverse to anything, because the two lots were part of the
1051659
10
same original parcel"; and second, because Jones's use of the
boat ramp after the Dekles acquired the lot on which the boat
ramp was located was "under an agreement" and thus was not
hostile. Dekles' brief at 20-22. We see no evidence that the
Dekles' first argument was presented to the trial court, and
"[t]his Court cannot consider arguments raised for the first
time on appeal; rather, our review is restricted to the
evidence and arguments considered by the trial court."
Andrews v. Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992);
see also Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D.,
P.C., 580 So. 2d 1326, 1328 (Ala. 1991). As to the second
argument, the Dekles' statement in their motion for a JML or
a new trial that the jury was not permitted to hear the
discussion
of
their
alleged
agreement
with
Jones
is
contradicted by the record. Over the Seagraveses' objection,
the jury heard testimony regarding the alleged agreement
between the Dekles and Jones when the trial court admitted the
testimony with the understanding that the other party to the
alleged agreement –- Jones -- was deceased and that there was
no offer of any documentation of the purported agreement. The
record indicates that sufficient evidence was presented to the
1051659
11
jury to support its verdict and that the Dekles failed to
preserve for appellate review the issue whether the 20-year
prescriptive period can include a leasehold.
We now address certain of the Dekles' arguments directed
to the Court of Civil Appeals' no-opinion affirmance. The
pinpoint citation in that document to Johnny Spradlin, 568 So.
2d at 741, refers to a two-part test that requires that
"[a]n appellant who seeks reversal of an adverse
judgment on the ground that there is insufficient
evidence must meet a two-pronged test: he must have
asked for a [JML] at the close of all evidence,
specifying 'insufficiency of the evidence' as a
ground, and he must have renewed this motion by way of
a timely filed motion for [a JML], that again
specified
the
same
insufficiency-of-the-evidence
ground. Rule 50, Ala. R. Civ. P.; King Mines Resort v.
Malachi Mining & Minerals, Inc., 518 So. 2d 714 (Ala.
1987)."
Johnny Spradlin, 568 So. 2d at 741. Although the Dekles argue
that they met the requirements of the two-prong test, Dekles'
brief at 26-27, the Court of Civil Appeals could reasonably
have concluded that the Dekles failed to provide the
specificity required by each prong of the test. At the close
of
the
Seagraveses'
case-in-chief,
the
Dekles
stated:
"Basically our argument would be, Judge, that the plaintiffs
failed to prove their cause of action for statutory ejectment
1051659
12
and also they have claimed declaratory judgment ...." Then, at
the close of all evidence, they stated that "[w]e just renew
our motion previously made." The Dekles did not specify
"insufficiency of the evidence" in their motions, and we
therefore find no error or conflict with caselaw in the Court
of Civil Appeals' use of Johnny Spradlin in this case.
In their brief to the Court of Civil Appeals, the Dekles
argued that "[Jones's] use of the land cannot satisfy the
initial 20-year prerequisite. Mr. Jones did not own, but
merely leased the property in 1980, when the alleged
prescriptive use is argued to have commenced." Dekles' brief
at 20. The basis for the argument that the time land is under
lease cannot contribute to a prescriptive period was "[not]
supported by citations to the record," and the argument is
"unsupported by proper citation to legal authority, violates
Rule 28(a), Ala. R. App. P., [and was] not argued in the trial
court." Crutcher, 857 So. 2d at 97. Furthermore, the citation
to Crutcher in the Court of Civil Appeals' no-opinion
affirmance
could
alternatively
refer
to
the
following
statement in Crutcher: "'"Where an appellant fails to cite any
authority, we may affirm, for it is neither our duty nor [our]
1051659
13
function to perform all of the legal research for the
appellant."'" 857 So. 2d at 97 (quoting McLemore v. Fleming,
604 So. 2d 353, 353 (Ala. Civ. App. 1984), quoting in turn
Gibson v. Nix, 460 So. 2d 1346, 1347 (Ala. Civ. App. 1984)).
We find no error or conflict in the caselaw with this
application of Crutcher by the Court of Civil Appeals.
The Court of Civil Appeals also cited State Farm Mutual
Automobile Insurance Co. v. Motley, apparently in response to
the Dekles' argument that a prescriptive period may not
include periods of leasehold. It states, in particular, that
"[the appellant] having cited no authority whatsoever in
support of its novel theory, and the theory not otherwise
being 'self-evident,' we decline to adopt it." 909 So. 2d at
822.
Our review has indicated that the Dekles failed to argue
in the trial court the issue whether a prescriptive period may
include the period during which the land was leased. Their
argument that they had an agreement with Jones and that his
use of the boat ramp on their lot was therefore not adverse
was before the jury and was apparently considered in the
jury's deliberations. Accordingly, we hold that the Court of
1051659
14
Civil Appeals did not err in affirming the judgment of the
trial court, which had sufficient evidence before it to
present the question to a jury for determination.
The citations to cases in the Court of Civil Appeals' no-
opinion affirmance provide guidance as to the basis of that
Court's ruling; we find no conflict with that caselaw in its
application here. Accordingly, we pretermit discussion of the
cases in the Court of Civil Appeals' no-opinion affirmance
that are not specifically addressed herein.
IV. Conclusion
We granted the Dekles' petition to review the decision of
the Court of Civil Appeals based on the ground asserted in the
petition, i.e., that the decision conflicts with controlling
precedent. Although a no-opinion affirmance is sometimes
subject
to
differing
interpretations,
this
no-opinion
affirmance is self-explanatory because of the use of pinpoint
citations. It is not this Court's function in the appellate
process to reweigh the evidence presented to a jury; rather,
we are to review the legal issues raised in the petitioner's
or appellant's brief. We find no conflict between the decision
of the Court of Civil Appeals and controlling precedent, and
1051659
15
the writ, therefore, is due to be quashed.
WRIT QUASHED.
See, Lyons, Woodall, Stuart, Smith, and Bolin, JJ.,
concur.
Murdock, J., recuses himself. | April 11, 2008 |
67e2fee0-cf99-43ef-9e63-90761d8ad1c7 | Ex parte Jackie Graham, in her personal capacity and in her official capacity as director of the Alabama State Personnel Department. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: Jackie Graham, in her personal capacity and in her official capacity as director of the Alabama State Personnel Department v. Alabama State Employees Association) | N/A | 1070338 | Alabama | Alabama Supreme Court | rel: 04/11/2008
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, 2007-2008
_________________________
1070338
_________________________
Ex parte Jackie Graham, in her personal capacity and in her
official capacity as director of the Alabama State Personnel
Department
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Jackie Graham, in her personal capacity and in her
official capacity as director of the Alabama State Personnel
Department
v.
Alabama State Employees Association)
(Montgomery Circuit Court, CV-05-2701;
Court of Civil Appeals, 2060130)
SMITH, Justice.
1070338
2
The petition for the writ of certiorari is denied.
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, Woodall, and Parker, JJ., concur. | April 11, 2008 |
c9bd543a-b272-4e32-8d65-349e4dc9df99 | Ex parte J.E. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS (In re: J.E. v. V.C.E.) | N/A | 1060874 | Alabama | Alabama Supreme Court | Rel 05/09/2008
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, 2007-2008
_________________________
1060874
_________________________
Ex parte J.E.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: J.E.
v.
V.C.E.)
(Etowah District Court, JU-06-186.01;
Court of Civil Appeals, 2050678)
1060874
2
PER CURIAM.
On June 8, 2007, this Court granted the petition for a
writ of certiorari filed by J.E. ("the father") to review the
no-opinion affirmance by the Court of Civil Appeals of the
Etowah District Court's order terminating his parental rights
as to the minor child born of his marriage to V.C.E. ("the
mother"). For the reasons stated herein, we reverse and
remand.
Facts
We note that this case does not involve a stepparent who
is
seeking
to
adopt
a
child
and
fulfill
parental
responsibilities to the child in place of the biological
parent. This case also does not involve the termination of
parental rights in a dependency matter as a step toward
providing a child with permanent placement in a safe
environment, as is often the case when, for example, the State
petitions a court to terminate parental rights. The child
here, whose best interests are the ultimate concern in this
case, is residing with the custodial parent, the mother.
The father and the mother married, had a child, and, in
January 1999, divorced. The child was three years old when
1060874
3
the parents divorced. The mother was awarded sole legal and
physical custody of the minor child; the father was granted
visitation rights and was ordered to pay child support in the
amount of $766.96 per month. The mother and father reconciled
in June 1999, and the reconciliation lasted until January
2001.
The father irregularly paid child support, and the mother
filed a petition in the Etowah Circuit Court seeking to have
the father held in contempt. The parties reached an agreement
regarding custody and support, and on December 12, 2002,
Judge William H. Rhea III entered an order enforcing the
parties' agreement. The circuit court's order held the father
in contempt for failure to pay child support; awarded the
mother a judgment in the amount of $12,169.27 for past-due
child support and $55.15 for past-due dental expenses for the
child; reduced the father's child-support obligation to $102
per week; and ordered the father to pay $18 per week toward
the arrearage. The order further stated that "[t]he failure
of the [father] to make one child support payment will result
in this Court issuing a Pick Up Order which will incarcerate
1060874
The father paid the $1,000 child-support payment and was
1
released from jail.
The nature of "the testimony of the [mother] with regard
2
to the [father's] recent actions" is not specified in the
record.
4
the [father] in the Etowah Detention Center for a period of 30
days."
The mother later filed a second contempt petition in the
Etowah Circuit Court. Judge Rhea granted her petition. By an
order entered December 16, 2003, the circuit court ordered the
father to be jailed for 30 days or until the father made a
$1,000 cash child-support payment; further reduced the
1
father's child-support obligation to $50 per week "due to [the
father's] being without a job"; and ordered the father to
inform his attorney of record when he obtained employment so
that his child-support obligation could be recalculated
accordingly. In addition, Judge Rhea's December 16, 2003,
order stated:
"Due to the fact that the [father] admitted in open
court to his continued use of drugs, and, further,
due to the testimony of the [mother] with regard to
the [father's] recent actions,[ ] the [father] will
2
not be allowed to have visitation rights until he
can prove to this Court that he has rehabilitated
himself to the point where he is a worthy candidate
for visitation with said child."
1060874
The district court specifically found "no evidence"
3
indicating that the father suffered emotional illness, mental
illness, or mental deficiency; no evidence indicating that the
father used alcohol or drugs of such duration or nature as to
render the father unable to care for the child; and no
evidence indicating that the father maltreated or abused the
child or that the child was in danger of being maltreated or
abused by the father. The district court found no evidence of
a conviction of a felony and did not base its decision to
terminate the father's parental rights solely on the father's
criminal record.
5
On March 30, 2006, the mother filed a petition in the
District Court of Etowah County to terminate the father's
parental rights.
On May 1, 2006, the district court held a detailed
hearing on the mother's petition, during which both the mother
and the father testified. The district court heard evidence
as to the father's child-support payments and child-support
arrearage, his sporadic attempts at contact and visitation
with the child, and his criminal record. The district court
also heard allegations that the father had used drugs in the
past and that he had shown up at the mother's house in an
altered mental state demanding to be allowed to visit the
child.
3
1060874
The text of Ala. Code 1975, § 26-18-7, is set forth,
4
infra, under the heading "Standard of Review."
6
On May 8, 2006, the district court judge, Judge William
D. Russell, Jr., entered an order containing the following
findings of fact and conclusions of law:
"It should be noted that the father has made no
effort to have Judge Rhea modify [the circuit
court's
December
16,
2003,
order
suspending
visitation]. According to the testimony of the
mother in the present hearing, the father attempted
to visit the child only twice from June 2003 through
the date of the hearing. The last attempted visit
by the father was on January 26, 2005. Contrary to
Judge Rhea's order, the mother offered to allow
supervised visitation in her home, but refused any
unsupervised visitation. The father made no attempt
to contact the child after 01/26/2005 until a
telephone call to the mother's place of employment
in February 2006. Paragraph 6 of Judge Rhea's Order
of 12/16/2003 further required the father to
immediately notify his attorney and the mother's
attorney
'upon
his
being
re-employed.'
The
testimony in the present hearing further revealed
that the father is currently employed, earning $12
per hour. Obviously, he failed to report that
increased income to his attorney, to the mother's
attorney, or to Judge Rhea, so as to have his weekly
child support obligation increased. The father is
very content to continue paying $50.00 per week.
The father strongly objects to the termination of
his parental rights, and points to the fact that he
has paid his $50.00 per week child support on a
regular, continuous basis since December 2003.
"The statute [Ala. Code 1975, § 26-18-7, ] requires
4
in subsection (a) that the Court consider eight
factors, which it has done. The primary factors
demonstrated by the evidence with respect to the
1060874
7
father are subsections (a)(1) and (b)(1). He has in
effect voluntarily relinquished his parental rights
by failing to re-petition Judge Rhea to reinstate
his visitation rights. He tries to blame the
mother's refusals as the reason for his lack of
contact. His blame is misplaced. Visitation was
not at the discretion of the mother. Judge Rhea had
indefinitely suspended all visitation. The father
should have re-petitioned Judge Rhea first. He has
failed to 'provide for the material needs of the
child or to pay a reasonable portion of its support,
where the parent is able to do so.' As to the
father, the Court found no evidence of the factors
listed in subsection (a)(2), (3), (4), (5), (7), and
(8). Subsection (b) requires several additional
judicial considerations. The Court found ample
evidence of the factors in subsections (b)(1), (2),
(3), and (4). As to subsection (4), the father has
clearly demonstrated his inability and unwillingness
to adjust his circumstances to meet the needs of the
child.
"IT IS THEREFORE ORDERED ADJUDGED AND DECREED BY THE
COURT AS FOLLOWS:
"(1) All parental rights of the father ... with and
to [the child] are hereby permanently terminated."
(Capitalization in original; second emphasis added.)
On May 16, 2006, the father appealed the district court's
judgment to the Alabama Court of Civil Appeals. That court
affirmed the district court's judgment without an opinion.
Presiding Judge Crawley filed an opinion, dissenting from the
no-opinion affirmance. J.E. v. V.C.E, [Ms. 2050678, Dec. 15,
1060874
8
2006] ___ So. 2d ___ (Ala. Civ App. 2006) (Crawley, P.J.,
dissenting).
The father then filed a petition for the writ of
certiorari to this Court. This Court granted the petition.
The father argues that the Court of Civil Appeals erred in
affirming the district court's judgment because, he argues,
that court improperly considered the factors outlined in Ala.
Code 1975, § 26-18-7(b), which applies when a child is "not in
the physical custody of its parent"; concluded without
sufficient evidence that the father had abandoned the child;
and failed to consider viable alternatives to the termination
of the father's parental rights.
Standard of Review
"[T]he primary focus of a court in cases involving the
termination of parental rights is to protect the welfare of
the children and at the same time to protect the rights of
their parents." Ex parte Beasley, 564 So. 2d 950, 952 (Ala.
1990); see also Ala. Code 1975, § 26-18-2, a part of Alabama's
Child Protection Act, § 26-18-1 et seq. "The right to parent
one's child is a fundamental right," K.W. v. J.G., 856 So. 2d
859, 874 (Ala. Civ. App. 2003), and because "the termination
1060874
9
of parental rights strikes at the very heart of the family
unit, a court should terminate parental rights only in the
most egregious of circumstances." Beasley, 564 So. 2d at 952.
Where, as here, the custodial parent petitions to
terminate the parental rights of the noncustodial parent, the
trial court's analysis consists of two parts. 564 So. 2d at
954. First, the trial court must determine whether grounds
exist for terminating parental rights. 564 So. 2d at 954.
Grounds exist for terminating parental rights if the parent in
question
is
"unable
or
unwilling
to
discharge
[his]
responsibilities to and for the child, or ... the conduct or
condition of the parent[] is such as to render [him] unable to
properly care for the child and ... such conduct or condition
is unlikely to change in the foreseeable future." Ala. Code
1975, § 26-18-7(a) (stating that, under such conditions, a
court "may terminate the parental rights of the parent[]").
A trial court's order terminating parental rights must be
based on "clear and convincing evidence, competent, material,
and relevant in nature." Ala. Code 1975, § 26-18-7(a).
In determining whether such grounds exist, factors for
the trial court's consideration include, but are not limited
1060874
10
to, those grounds set forth in Ala. Code 1975, § 26-18-7.
Beasley, 564 So. 2d at 954. The factors set forth in Ala.
Code 1975, § 26-18-7, are as follows:
"(a) ... In determining whether or not the
parents are unable or unwilling to discharge their
responsibilities to and for the child, the court
shall
consider,
and
in
cases
of
voluntary
relinquishment of parental rights may consider, but
not be limited to, the following:
"(1) That the parents have abandoned the
child, provided that in such cases, proof shall
not be required of reasonable efforts to
prevent removal or reunite the child with the
parents.
"(2) Emotional illness, mental illness or
mental deficiency of the parent, or excessive
use of alcohol or controlled substances, of
such duration or nature as to render the parent
unable to care for needs of the child.
"(3) That the parent has tortured, abused,
cruelly beaten, or otherwise maltreated the
child, or attempted to torture, abuse, cruelly
beat, or otherwise maltreat the child, or the
child is in clear and present danger of being
thus tortured, abused, cruelly beaten, or
otherwise maltreated as evidenced by such
treatment of a sibling.
"(4) Conviction of and imprisonment for a
felony.
"(5) Unexplained serious physical injury to
the child under such circumstances as would
indicate that such injuries resulted from the
intentional conduct or willful neglect of the
parent.
1060874
11
"(6)
That
reasonable
efforts
by
the
Department of Human Resources or licensed
public or private child care agencies leading
toward the rehabilitation of the parents have
failed.
"(7) That the parent has been convicted by
a court of competent jurisdiction of any of the
following:
"a. Murder or voluntary manslaughter
of another child of that parent.
"b.
Aiding,
abetting,
attempting,
conspiring, or soliciting to commit murder
or voluntary manslaughter of another child
of that parent.
"c. A felony assault or abuse which
results in serious bodily injury to the
surviving child or another child of that
parent. The term 'serious bodily injury'
means
bodily
injury
which
involves
substantial risk of death, extreme physical
pain,
protracted
and
obvious
disfigurement,
or protracted loss or impairment of the
function of a bodily member, organ, or
mental faculty.
"(8) That parental rights to a sibling of
the child have been involuntarily terminated.
"(b) Where a child is not in the physical
custody of its parent or parents appointed by the
court, the court, in addition to the foregoing,
shall also consider, but is not limited to the
following:
"(1) Failure by the parents to provide for
the material needs of the child or to pay a
1060874
12
reasonable portion of its support, where the
parent is able to do so.
"(2) Failure by the parents to maintain
regular visits with the child in accordance
with a plan devised by the department, or any
public or licensed private child care agency,
and agreed to by the parent.
"(3) Failure by the parents to maintain
consistent contact or communication with the
child.
"(4) Lack of effort by the parent to adjust
his or her circumstances to meet the needs of
the
child
in
accordance
with
agreements
reached, including agreements reached with
local
departments
of
human
resources
or
licensed
child-placing
agencies,
in
an
administrative review or a judicial review.
"(c) In any case where the parents have
abandoned a child and such abandonment continues for
a period of four months next preceding the filing of
the
petition,
such
facts
shall
constitute
a
rebuttable presumption that the parents are unable
or unwilling to act as parents. Nothing in this
subsection is intended to prevent the filing of a
petition in an abandonment case prior to the end of
the four-month period."
If the trial court determines, based on all relevant
factors, that grounds exist for terminating parental rights,
then the court must proceed to the second part of its
analysis, which is to consider whether all viable alternatives
to terminating parental rights have been exhausted. Beasley,
564 So. 2d at 954.
1060874
13
A trial court's factual findings premised on an ore
tenus hearing are presumed correct. See Ex parte Perkins, 646
So. 2d 46, 47 (Ala. 1994). "'This presumption is based on the
trial court's unique position to directly observe the
witnesses and to assess their demeanor and credibility.'" Ex
parte T.V., 971 So. 2d 1, 4 (Ala. 2007)(quoting Ex parte Fann,
810 So. 2d 631, 633 (Ala. 2001)). On appeal, a judgment
entered on factual findings based on ore tenus evidence will
not be overturned "'unless the evidence so fails to support
the determination that it is plainly and palpably wrong, or
unless an abuse of the trial court's discretion is shown. To
substitute our judgment for that of the trial court would be
to reweigh the evidence. This Alabama law does not allow.'"
Perkins, 646 So. 2d at 47 (quoting Phillips v. Phillips, 622
So. 2d 410, 412 (Ala. Civ. App. 1993)).
However, the ore tenus standard of review has no
application to a trial court's conclusions of law or its
application of law to the facts; a trial court's ruling on a
question of law carries no presumption of correctness on
appeal. Perkins, 646 So. 2d at 47; Eubanks v. Hale, 752 So.
2d 1113, 1144-45 (Ala. 1999). Thus, an appellate court will
1060874
14
"review the trial court's conclusions of law and its
application of law to the facts under the de novo standard of
review." Washington v. State, 922 So. 2d 145, 158 (Ala. Crim.
App. 2005).
Analysis
I.
Did the district court err in considering the factors
listed in Ala. Code 1975, § 26-18-7(b), as a basis for
terminating the father's parental rights?
The father argues that the district court erred in
considering the factors listed in Ala. Code 1975, § 26-18-
7(b), as a basis for terminating his parental rights. That
subsection sets forth factors to be considered "[w]here a
child is not in the physical custody of its parent or parents
appointed by the court."
The father argues that, because the child was in the
physical custody of the mother, the child was "in the physical
custody of its parent or parents appointed by the court" and,
therefore, that subsection (b) does not apply in this case.
However, the courts of this State have consistently applied
subsection (b) in considering whether to terminate a
noncustodial parent's rights, even when the child is in the
physical custody of the custodial parent. See In re T.M.A.,
1060874
15
590 So. 2d 298, 299 (Ala. Civ. App. 1991) (stating that,
"[w]hen the child is not in the physical custody of the parent
in question, the court may properly consider the parent's
failure to provide for the child's material needs," a factor
from subsection (b)); see also, e.g., A.S. v. W.J.T., [Ms.
2060506, November 30, 2007] ___ So. 2d ___ (Ala. Civ. App.
2007)(considering
evidence
of
father's
child-support
arrearage
in reviewing trial court's ruling on the mother's petition to
terminate the father's parental rights, where the mother had
primary physical custody of the children); A.J.H.T. v. K.O.H.,
[Ms. 2051035, July 27, 2007] __ So. 2d __ (Ala. Civ. App.
2007)(considering
evidence
of
mother's
child-support
arrearage, failure to visit or to maintain contact, and
inability to adjust circumstances to meet children's needs, in
addressing the father's petition to terminate the mother's
parental rights where the father had physical custody of the
children). Moreover, in terminating parental rights, in
addition to the factors listed in § 26-18-7, a court may
consider "any other factors that are relevant to the child's
welfare." In re Colbert, 474 So. 2d 1143, 1145 (Ala. 1985).
1060874
16
The factors listed in subsection (b), such as failure to
pay child-support obligations and failure to visit or maintain
contact with the child, are clearly relevant in this case.
The district court did not err in considering the factors
listed in 26-18-7(b).
II.
Did the district court err in finding that the father had
abandoned the child by voluntarily relinquishing his
parental rights?
The father next argues that the district court erred in
finding that he had abandoned the child because he "has in
effect voluntarily relinquished his parental rights by failing
to re-petition Judge Rhea to reinstate his visitation rights."
For the reasons stated below, we agree.
Under Alabama's Child Protection Act, any one of the
following three circumstances constitutes "abandonment" of a
child by a parent: (1) "[a] voluntary and intentional
relinquishment of the custody of a child by a parent," or (2)
"a withholding from the child, without good cause or excuse,
by the parent, of his presence, care, love, protection,
maintenance or the opportunity for the display of filial
affection," or (3) "the failure to claim the rights of a
parent, or failure to perform the duties of a parent." Ala.
1060874
17
Code 1975, § 26-18-3. In this case, the district court
concluded that the father abandoned the child by voluntarily
relinquishing his parental rights when he failed to seek the
reinstatement of his visitation rights. The record in this
case contains no evidence to support the district court's
legal
conclusion
that
the
father's
failure
to
seek
reinstatement
of
visitation
constituted
the
voluntary
relinquishment of his parental rights.
In Ex parte D.J., 645 So. 2d 303, 306-07 (Ala. 1994),
this Court stated:
"'Relinquishment' is defined as '[a] forsaking,
abandoning, renouncing or giving over a right.'
Black's Law Dictionary 1161 (5th ed. 1979). ...
Voluntary
relinquishment
is
thus
essentially
synonymous with the concept of 'waiver,' which has
been defined as the 'voluntary and intentional
surrender or relinquishment of a known right.'
Dominex, Inc. v. Key, 456 So. 2d 1047, 1058 (Ala.
1984)."
(Original emphasis omitted; emphasis added.)
Nothing in the record supports the district court's
conclusion that by not seeking reinstatement of his visitation
rights the father intended to surrender his parental rights.
The father offered several reasons for failing to visit the
child, including the mother's insistence (during the court-
1060874
The mother testified that she obtained the protection-
5
from-abuse order following an argument in which the mother
told the father he was not allowed to stay at her house.
According to the mother, the father responded by telling her
he would "beat the hell out of" her and slash the tires on her
vehicle, and as he was driving away he drove over her front
yard with his truck, leaving furrows in her yard. After
hearing ore tenus evidence regarding the incident, the
district court found that the father did not pose a threat of
abuse or maltreatment to the child, and the district court did
not base its decision to terminate his parental rights on the
incident or on the existence of the protection-from-abuse
order.
18
ordered suspension of visitation rights) that any visits
between the father and the child occur in her house under her
supervision and a protection-from-abuse order prohibiting the
father from being around the mother for one year.
5
If the district court disbelieved the father's reasons
for failing to maintain contact with the child, it was well
within its authority to do so. However, the district court
was not within its authority in concluding that the father had
"voluntarily relinquished" his parental rights, because there
is no evidence in this record to support the inference that
the father intended to surrender those rights. The record
contains uncontradicted evidence indicating that, between
December 16, 2003, when Judge Rhea terminated the father's
visitation rights, and March 30, 2006, the date the mother
1060874
19
filed her petition in the district court to terminate the
father's parental rights, the father regularly paid child
support (although in an amount below what he would have paid
if he had complied with Judge Rhea's order and reported his
employment), and that the father attempted to contact or see
the child on several occasions. Although these facts may well
indicate irresponsible and extremely poor parenting, neither
these facts nor any other evidence in the record supports a
legal conclusion that because the father had not attempted to
petition for a reversal of Judge Rhea's visitation order he
intended to surrender his parental rights with regard to the
child.
This
Court
stresses
that
its
holding
as
to
the
abandonment issue is limited to a determination that this
record does not support the district court's legal conclusion
that the father "voluntarily relinquished" his parental rights
based solely on the fact that the father had not attempted to
re-petition Judge Rhea for the reinstatement of his visitation
rights.
By so holding, this Court does not take the position that
evidence of the failure to seek reinstatement of visitation
1060874
20
rights can never support a finding of abandonment. For
example, failure to seek visitation may indicate a voluntary
relinquishment of parental rights when that failure is
accompanied with evidence of an intent to surrender those
rights. Further, there are ways to abandon a child other than
voluntarily relinquishing parental rights. As noted above,
abandonment can occur if the parent "withhold[s] from the
child, without good cause or excuse, ... his presence, care,
love, protection, maintenance or the opportunity for the
display of filial affection," or if the parent "fail[s] to
claim the rights of a parent, or fail[s] to perform the duties
of a parent." Ala. Code 1975, § 26-18-3. Thus, when clear
and convincing evidence supports the conclusion that a
parent's failure to seek visitation falls into one of these
two categories, then such failure may support a finding of
abandonment.
Nothing in this opinion is intended to prevent the
district court's reconsideration, on remand, of whether there
is clear and convincing evidence demonstrating that the father
has abandoned the child by means other than "voluntary
relinquishment" of his parental rights or whether the father
1060874
21
is otherwise "unable or unwilling," § 26-18-7(a), Ala. Code
1975, to provide for the needs of the child.
Conclusion
For the reasons stated above, the Court of Civil Appeals'
judgment is reversed and the case remanded to that court for
it, in turn, to reverse the district court's judgment
terminating the father's parental rights and to remand the
case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
See, Lyons, Woodall, Smith, and Parker, JJ., concur.
Cobb, C.J., concurs specially.
Stuart and Bolin, JJ., concur in the result.
Murdock, J., recuses himself.
1060874
22
COBB, Chief Justice (concurring specially).
Although the district court erred in finding that the
father had voluntarily relinquished his parental rights, the
district court is not precluded on remand from finding
abandonment on some other basis if clear and convincing
evidence supporting such a finding exists. I write specially
to address the district court's error, under our current
jurisprudence,
in
failing
to
consider
whether
viable
alternatives to terminating the father's parental rights exist
that would be in the child's best interests, even upon a
finding of abandonment.
The father argues that the district court erred by not
considering viable alternatives to termination as required by
the two-step termination analysis this Court established in Ex
parte Beasley, 564 So. 2d 950, 952 (Ala. 1990).
Specifically, the father argues, first, that the district
court erred by overlooking the alternative of allowing him to
visit the child at the child's paternal grandmother's house
under the grandmother's supervision. The problem with this
argument is that ordering visitation at the paternal
grandmother's house was not an alternative available to the
1060874
23
district court; the district court did not have jurisdiction
to modify the circuit court's order so as to allow visitation
at the paternal grandmother's house or elsewhere. See A.S. v.
W.T.J., [Ms. 2060506, November 30, 2007] ___ So. 2d ___ (Ala.
Civ. App. 2007). The district court did not err in failing to
consider visitation at the paternal grandmother's house as a
viable alternative to the termination of the father's parental
rights.
Second, the father argues that the district court erred
by not considering the status quo as a viable alternative to
termination. The mother argues that no alternatives to
termination need be considered because the district court
found that the father abandoned the child. In support of her
position, the mother quotes an opinion issued by the Court of
Civil Appeals holding that "finding and rejecting viable
alternatives to a termination of parental rights as required
by Ex parte Beasley, [564 So. 2d 950, 952 (Ala. 1990)], is not
required in cases [of abandonment] because [Ala. Code 1975] §
12-15-65(m)(1) does not require 'reasonable efforts' toward
reunification in a case where the parent has abandoned the
child." W.L.H. v. B.L.M., 829 So. 2d 173, 175 (Ala. Civ. App.
1060874
Justice Murdock's special writing, concurring in the
6
result, represented the expression of the majority of the
judges serving on the Court of Civil Appeals when the opinion
in W.L.H. was issued.
24
2002)(opinion by Pittman, J., joined by Thompson, J.).
However, in a well-reasoned opinion concurring in the result
in W.L.H., Justice Murdock, then sitting on the Court of Civil
Appeals, and joined by Presiding Judge Yates and Judge
Crawley, wrote:
6
"I
am
not
convinced
that
the
'viable-alternatives' prong identified in [Ex parte]
Beasley, [564 So. 2d 950 (Ala. 1990),] may be read
so narrowly. In some cases, there may be 'viable
alternatives' to termination other than family
reunification. For example, in S.M.W. v. J.M.C.,
679 So. 2d 256 (Ala. Civ. App. 1996), we affirmed
the denial of termination of a father's parental
rights where the father had had only sporadic
contact with the approximately five-year-old child
because of the father's incarceration for a felony;
we noted that while the trial court in that case had
determined that grounds for termination existed, it
had also concluded that '"it would be in the best
interests of the child that the father be given an
opportunity to pursue the relationship with his son
in the future."' 679 So. 2d at 258. To like effect
is D.C. v. J.C., 842 So. 2d 17 (Ala. Civ. App.
2002), in which Judge Pittman opined that a viable
alternative to terminating the parental rights of a
mother and a father on the petition of the child's
paternal grandparents would be 'to maintain the
present
situation--maintain
custody
with
the
grandparents
and
maintain
...
supervised
visitation.' 842 So. 2d at 20.
1060874
25
"While I agree that the trial court's judgment
terminating the parental rights of the mother in
this case is supported by the evidence and is due to
be affirmed (see A.R.E. v. E.S.W., 702 So. 2d 138
(Ala. Civ. App. 1997)), I do not believe that in
doing so this court should blur the distinction
between the concepts of 'viable alternatives' to
termination and 'reasonable efforts' to return a
child to a parent's custodial control. I therefore
concur in the result."
829 So. 2d at 175-76 (Murdock, J., concurring in the result).
I would hold that, as our caselaw currently stands, the
second part of the Ex parte Beasley test applies in cases
where a parent has abandoned the child. In that regard, I
find persuasive the reasoning set forth in Justice Murdock's
opinion concurring in the result in W.L.H. As defined by Ala.
Code 1975, § 12-15-65(m), "'reasonable efforts' refers to
efforts made to preserve and reunify families prior to the
placement of a child in foster care, to prevent or eliminate
the need for removing the child from the child's home, and to
make it possible for a child to return safely to the child's
home." "Reasonable efforts" to prevent removal of a child
from its home and from the parents' custody are not the same
as "viable alternatives" to terminating parental rights.
Considering viable alternatives to termination, even in
cases of abandonment, is required by Ex parte Beasley, as we
1060874
26
have applied the holding of that case in conjunction with the
statute governing the termination of parental rights. Ex
parte Beasley requires that, "[f]irst, the court must find
that there are grounds for the termination of parental rights,
including, but not limited to, those specifically set forth in
[Ala. Code 1975,] § 26-18-7." 564 So. 2d at 954. Under
Section 26-18-7(a)(1), a trial court determining whether
abandonment constitutes grounds for termination of parental
rights is not required to consider "proof ... of reasonable
efforts to prevent removal or reunite the child with the
parents." (Emphasis added.)
Ex parte Beasley further requires that, "after the court
has found that there exist grounds to order the termination of
parental rights, the court must inquire as to whether all
viable alternatives to a termination of parental rights have
been considered." 564 So. 2d at 954. Thus, under Ex parte
Beasley, upon finding that abandonment constitutes a ground
for a termination of parental rights, a trial court must
consider whether viable alternatives to termination exist. As
Justice Murdock stated in W.L.H., "[i]n some cases, there may
1060874
27
be 'viable alternatives' to termination other than family
reunification." 829 So. 2d at 175.
In this case, the district court did not consider whether
other viable alternatives existed. In particular, the
district court did not consider whether maintaining the status
quo, under which the father was obligated to pay child support
while complying with a no-visitation order that could be
lifted only at the circuit court's discretion, was a viable
alternative.
"The termination of parental rights is an extreme matter
and is not to be considered lightly." S.M.W. v. J.M.C., 679
So. 2d 256, 258 (Ala. Civ. App. 1996) (citing Ex parte
Beasley). "Inasmuch as the termination of parental rights
strikes at the very heart of the family unit, a court should
terminate parental rights only in the most egregious of
circumstances." Ex parte Beasley, 564 So. 2d at 952. Here,
the district court found evidence that the father was under a
no-visitation order, that his attempts to contact his child
have been sporadic, and that he is in arrears in payment of
child support. However, as Presiding Judge Crawley stated in
1060874
28
his dissent to the no-opinion affirmance issued by the Court
of Civil Appeals:
"Although the father failed to regularly support the
child and offered reasons for the existence of his
child-support arrearage that may have suggested some
degree of financial irresponsibility, there are less
drastic measures to effectuate the payment of child
support than [the threat of] terminating parental
rights."
___ So. 2d at ___.
Moreover, even if the father does not seek reinstatement
of his visitation rights, the child's right to support and
inheritance remain. See In re Beasley, 564 So. 2d 959, 960
(Ala. Civ. App. 1990).
The child here is safely residing with the mother. In
particular, I note that, in this case, there is no stepfather
seeking to terminate the father's rights so that he can adopt
the child and fulfill parental responsibilities as to the
child in place of the biological father. Further, this is not
a case in which maintenance of the status quo would thwart the
goal of ultimately providing the child permanent placement in
a safe environment, as is often the case when, for example,
the State petitions to terminate parental rights.
1060874
29
Here, the district court found no evidence indicating
that the father posed any danger to the child. The district
court expressly found "no evidence" of emotional illness,
mental illness, or mental deficiency of the father; no
evidence of excessive use of alcohol or controlled substances
of such duration or nature so as to render the father unable
to care for needs of the child; no evidence that the child had
been maltreated or abused by the father or that the child was
in danger of being maltreated or abused; and no evidence of a
conviction of and imprisonment for a felony. Courts of this
State have often found that "termination of parental rights is
not appropriate in cases ... in which the children are safely
residing with the custodial parent and the continuation of the
noncustodial parent's parental rights does not present any
harm" to the children's best interests, and that, in many
cases, "a less drastic alternative, usually maintaining the
status quo, is viable and should be utilized." A.J.H.T. v.
K.O.H.,[Ms. 2051053, July 27, 2007] ___ So. 2d ___, ___ (Ala.
Civ. App. 2007)(Moore, J., concurring in part and dissenting
in part) (citing Sutton v. Elrod, 724 So. 2d 551 (Ala. Civ.
App. 1998); Beasley, 564 So. 2d 959; Millier v. Knight, 562
1060874
30
So. 2d 274 (Ala. Civ. App. 1990); Talley v. Oliver, 628 So. 2d
690 (Ala. Civ. App. 1993); S.M.W. v. J.W.C., 679 So. 2d 256
(Ala. Civ. App. 1996); and Thornton v. Thornton, 519 So. 2d
960 (Ala. Civ. App. 1987)).
For these reasons, under Ex parte Beasley, a trial court
considering the termination of parental rights is to consider
whether viable alternatives exist that would be in the child's
best interest, even in cases of abandonment. Accordingly, I
would hold that, under our current jurisprudence, the district
court erred in not considering as a viable alternative to
stripping the father of his parental rights and obligations
whether allowing the father to retain his parental rights
under the current circumstances would serve the best interests
of the child.
1060874
31
STUART, Justice (concurring in the result).
I concur in the result reached in this case because I do
not believe the record in this case supports the finding that
terminating the father's parental rights is in the child's
best interest.
I have written at length concerning the judicial
engraftment of the "no viable alternative" second prong of the
termination-of-parental-rights test this Court adopted in Ex
parte Beasley, 564 So. 2d 950 (Ala. 1990). See Ex parte F.P.,
857 So. 2d 125 (Ala. 2003)(Stuart, J., dissenting). I do not
agree with that part of the rationale in the majority opinion
that requires a trial court to consider whether all viable
alternatives to terminating parental rights have been
exhausted. The focus in termination-of-parental-rights cases
should remain the best interest of the child, which
unfortunately was judicially removed from the formula years
ago. | May 9, 2008 |
c51e0605-4d8a-43e9-b4a0-8f744c23feb1 | Bobby Joe Yeager and Dorothy Duncan v. Wendy Lucy, et al. | N/A | 1050721 | Alabama | Alabama Supreme Court | REL:03/28/08
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, 2007-2008
_________________________
1050721
_________________________
Bobby Joe Yeager and Dorothy Duncan
v.
Wendy Lucy et al.
Appeal from Jefferson Circuit Court, Bessemer Division
(CV-01-175)
BOLIN, Justice.
Bobby Joe Yeager and Dorothy Duncan appeal from the trial
court's judgment in favor of Wendy Lucy, Tanya Taylor, and
Edward Woodruff in this declaratory-judgment action.
Facts and Procedural History
1050721
2
Edna Yeager and T.R. Yeager divorced in 1978. Following
the divorce, Edna obtained title to their marital home, which
was located in Jefferson County. Edna married Larry James
Woodruff in 1987. Both had adult children from their previous
marriages, and no children were born of the marriage. Edna
and Larry lived in Edna's house. On April 17, 1990, Edna
executed a deed to the house; that deed provided, in pertinent
part, as follows:
"To the undersigned grantor or grantors in hand
paid by the Grantees herein, the receipt whereof is
acknowledged, we, Edna I. Yeager (herein referred to
as grantors)[sic] do grant, bargain, sell and convey
unto Edna Yeager Woodruff, a married woman, and her
children, Dorothy Marie Dunkin[sic] & Bobby Joe
Yeager (herein referred to as grantees) as joint
tenants with right of survivorship, the following
real estate situated in Jefferson County. ...
"Said Edna Yeager Woodruff hereby retains a life
estate
in
and
to
said
property
hereinabove
described, with the measure of 'life' being the
existence of Edna Yeager Woodruff.
"And I (we) do for myself (ourselves) and for my
(our) heirs executors, and administrators covenant
with the said GRANTEES, their heirs and assigns,
that I am (we are) lawfully seized in fee simple of
said
premises;
that
they
are
free
from
all
encumbrances unless otherwise noted above, that I
(we) have a good right to sell and convey the same
as aforesaid; that I (we) will and my (our) heirs,
executors and administrators shall warrant and
defend the same to the said GRANTEES, their heirs
1050721
The
personal
representatives
appointed
to
administer
both
1
Edna's estate and Larry's estate were added as defendants; the
personal representatives are not parties to this appeal.
3
and assigns forever, against the lawful claims of
all persons."
(Capitalization in original.) The deed was signed by Edna; it
was not signed by Larry.
Edna and Larry lived in the house until September 1997
when Larry allegedly abandoned Edna when she was diagnosed
with cancer. Larry established residence in Virginia and died
intestate in 1999. Edna died intestate in 1998.
On February 14, 2001, Larry's adult children, Wendy Lucy,
Tanya Taylor, and Edward Woodruff (hereinafter referred to as
"the Woodruff siblings"), filed a declaratory-judgment action
against Edna's adult children, Bobby Joe Yeager and Dorothy
Duncan (hereinafter referred to as "the Yeager siblings"),
regarding their rights as Larry's heirs arising out of the
April 17, 1990, deed executed by Edna. The Woodruff siblings
sought a declaration that they were entitled to Larry's share
of the property. The Yeager siblings answered the complaint
and asserted that Larry had no inheritable interest in the
property and that Larry had abandoned Edna.1
1050721
4
The case proceeded to trial on January 31, 2006. At the
close of the Woodruff siblings' case-in-chief, the Yeager
siblings presented their first witness. During the witness's
testimony, the trial judge called the counsel for the parties
into his chambers. Subsequently, the trial judge stated:
"All right. Ladies and gentlemen, let me go
ahead and let you know how I'm going to rule on this
case. Let me say, first of all, that we have tried
the case pretty broadly. And I spoke with the
attorneys. And we really tried -- after talking and
narrowing down what we are talking about, the only
issue we have here today is whether or not that deed
executed on April 17, 1990, was a valid deed. The
Code of the State of Alabama provides that no deed
of the homestead by a married person shall be valid
without the voluntary signature and consent of the
husband or wife.
"The testimony is undisputed that they were
married in 1990. Because they were married and
because of this Code section, the deed would be
invalid. And there may be some -- I think there
would be some issues raised that may very well be
issues in the probate matter that is still pending.
As far as what we have here, which is a separate
action for declaratory judgment, that's all I had to
decide on. And it's really a very simple and
straightforward case in that way. I have been
pretty patient, but I decided to go ahead and let
the attorneys know what I was thinking on it. And
so at this time that will be the decision. I will
get you all a copy of a written decision on it in
the mail."
1050721
5
On February 1, 2006, the trial court entered an order
declaring that the April 17, 1990, deed was invalid. The
Yeager siblings appeal.
Standard of Review
The trial court's judgment followed a bench trial, at
which the court heard ore tenus evidence. "'When a judge in
a nonjury case hears oral testimony, a judgment based on
findings of fact based on that testimony will be presumed
correct and will not be disturbed on appeal except for a plain
and palpable error.'" Smith v. Muchia, 854 So. 2d 85, 92 (Ala.
2003)(quoting Allstate Ins. Co. v. Skelton, 675 So. 2d 377,
379 (Ala. 1996)).
"'The ore tenus rule is grounded upon the principle
that when the trial court hears oral testimony it
has an opportunity to evaluate the demeanor and
credibility of witnesses.' Hall v. Mazzone, 486 So.
2d 408, 410 (Ala. 1986). The rule applies to
'disputed issues of fact,' whether the dispute is
based entirely upon oral testimony or upon a
combination
of
oral testimony and documentary
evidence. Born v. Clark, 662 So. 2d 669, 672 (Ala.
1995). The ore tenus standard of review provides:
"'[W]here the evidence has been [presented]
ore tenus, a presumption of correctness
attends the trial court's conclusion on
issues of fact, and this Court will not
disturb the trial court's conclusion unless
it is clearly erroneous and against the
great weight of the evidence, but will
1050721
6
affirm
the
judgment
if,
under
any
reasonable aspect, it is supported by
credible evidence.'"
Reed v. Board of Trs. for Alabama State Univ., 778 So. 2d 791,
795 (Ala. 2000) (quoting Raidt v. Crane, 342 So. 2d 358, 360
(Ala. 1977)). However, "that presumption [of correctness] has
no application when the trial court is shown to have
improperly applied the law to the facts." Ex parte Board of
Zoning Adjustment of Mobile, 636 So. 2d 415, 417 (Ala. 1994).
Analysis
The Yeager siblings argue that the trial judge erred in
denying them the opportunity to present a full defense when he
announced his ruling before they had had an opportunity to
present all of their witnesses. They argue that, in denying
them the opportunity to present a defense, the trial court
violated Art. I, § 10 of the Constitution of Alabama 1901,
which provides "[t]hat no person shall be barred from
prosecuting or defending before any tribunal in this state, by
himself or counsel, any civil cause to which he is a party."
However, the record does not indicate that the Yeager siblings
objected to the trial court's alleged violation of their
constitutional right to be heard.
1050721
7
"The rule is well settled that a constitutional
issue must be raised at the trial level and that the
trial court must be given an opportunity to rule on
the issue, or some objection must be made to the
failure of the court to issue a ruling, in order to
properly preserve that issue for appellate review.
This Court succinctly stated this rule as follows:
"'In order for an appellate court to review
a constitutional issue, that issue must
have been raised by the appellant and
presented to and reviewed by the trial
court. Additionally, in order to challenge
the constitutionality of a statute, an
appellant must identify and make specific
arguments regarding what specific rights it
claims have been violated.'
"Alabama Power Co. v. Turner, 575 So. 2d 551 (Ala.
1991) (citations omitted)."
Cooley v. Knapp, 607 So. 2d 146, 148 (Ala. 1992). Because the
Yeager siblings failed to object in the trial court, the issue
is not preserved for appellate review.
Second, the Yeager siblings argue that the trial court
erred in concluding that a married woman may not execute a
deed conveying her homestead without the signature of her
husband when the woman had owned the home in fee simple for 23
years and the husband knew of her death and did not make a
claim against her estate.
Section 6-10-3, Ala. Code 1975, provides:
1050721
8
"No mortgage, deed, or other conveyance of the
homestead by a married person shall be valid without
the voluntary signature and assent of the husband or
wife, which must be shown by his or her examination
before the officer authorized by law to take
acknowledgments of deeds, and the certificate of
such officer upon, or attached to, such mortgage,
deed, or other conveyance, which certificate must be
substantially in the form of acknowledgment for
individuals prescribed by Section 35-4-29."
The purpose of this statute is to protect one spouse from the
conveyance of the homestead by the other spouse without the
first spouse's consent. Gowens v. Goss, 561 So. 2d 519 (Ala.
1990). "A 'homestead' is generally defined as the home or
house where a family resides, where the head of the family
dwells, and any adjoining or appurtenant land used for the
family's comfort and sustenance." Sims v. Cox, 611 So. 2d
339, 340 (Ala. 1992). It is undisputed that Edna and Larry
married in 1987; that the house located in Jefferson County
was Edna and Larry's homestead on April 17, 1990, when the
deed was executed; and that Larry did not sign the deed. The
house was their family residence in 1990, even though the
house was the sole property of Edna before the marriage.
Accordingly, § 6-10-3 applies to the 1990 deed, making Larry's
signature necessary.
1050721
9
With regard to the Yeager siblings' contention that Larry
had to "make a claim" against Edna's estate in order to secure
his intestate inheritance, § 43-8-41, Ala. Code 1975, contains
no such requirement. Section 43-8-41 sets out the intestate
share of the surviving spouse. Although Larry did not "claim"
his share of Edna's estate, the share passed to him by
intestacy and, upon his death, to his children. Additionally,
§ 43-2-830 provides that upon a person's death, the
decedent's real property, in the absence of testamentary
disposition, devolves to the decedent's heirs. In the instant
case, Edna's heirs included her surviving spouse, Larry.
Last, the Yeager siblings argue that Larry abandoned Edna
and, therefore, that Larry forfeited his interest in the
homestead and the April 17, 1990, deed transferring the
marital home to them was valid. The Yeager siblings are
correct that in order for a spouse to be entitled to the
protection of § 6-10-3, the property at issue must be the
spouse's actual place of residence and that a spouse can
abandon their homestead interest. In Ex parte Pielach, 681
So. 2d 154 (Ala. 1996), this Court held that the husband's
1991 conveyance of the marital homestead to his adult daughter
1050721
10
was valid, even though the wife had not signed the deed of
conveyance, because the wife had abandoned the marital home in
1985 and had established residence in another state. In the
present case, although the trial court did not make a finding
of abandonment, there is evidence in the record to support
such a finding. However, Larry's alleged abandonment occurred
in 1997, and the deed transferring the property was executed
on April 17, 1990. The April 17, 1990, deed transferring the
homestead was void because it did not contain Larry's
signature. Larry's subsequent abandonment of the homestead
did not retroactively validate the attempted April 17, 1990,
conveyance to the Yeager siblings, and it is of no avail that
Larry later abandoned his homestead interest.
Based on the foregoing, the judgment of the trial court
is affirmed.
AFFIRMED.
Cobb, C.J., and Lyons, Stuart, and Murdock, JJ., concur. | March 28, 2008 |
7afa6624-4875-4de6-8c84-05d5a036f533 | Holiday Isle, LLC v. Beth Adkins et al. | N/A | 1070202 | Alabama | Alabama Supreme Court | REL: 05/23/20008
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
_________________________
1070202
_________________________
Holiday Isle, LLC
v.
Beth Adkins et al.
Appeal from Mobile Circuit Court
(CV-07-886.51)
LYONS, Justice.
Holiday Isle, LLC, a developer of condominiums, appeals
from a preliminary injunction entered by the Mobile Circuit
Court preventing Holiday Isle from negotiating irrevocable
letters of credit issued on behalf of J&R Investments, LLC,
1070202
2
and Beth Adkins. See Rule 4(a)(1), Ala. R. App. P. Because
the trial court exceeded its discretion in entering the
injunction, we reverse and remand with instructions to
dissolve the injunction.
I. Facts and Procedural History
On March 4, 2005, J&R Investments, LLC, agreed to
purchase unit 105 and on March 7, 2005, Beth Adkins, David
Adkins, and Nancy Whitten agreed to purchase unit 104 in a
condominium complex being developed by Holiday Isle. J&R
Investments, on the one hand, and Beth Adkins, David Adkins,
and Nancy Whitten, on the other (hereinafter J&R Investments
and the individual purchasers are referred to collectively as
"the purchasers"), then entered into preconstruction purchase
and escrow agreements with Holiday Isle for the condominium
units, which were to be completed within two years of April 1,
2005. The purchase agreements provided that the earnest-money
deposit could be satisfied by letters of credit issued to
Holiday Isle in lieu of cash. The purchasers selected this
option; J&R Investments delivered a letter of credit to
Holiday Isle, and Beth Adkins, David Adkins, and Nancy Whitten
delivered a letter of credit to Holiday Isle. The purchase
1070202
3
agreements provided that upon default by the purchasers,
Holiday Isle and/or an escrow agent "shall draw on the
existing Letter of Credit in whole and create with the
proceeds thereof a cash Deposit to be placed with Escrow
Agent, with said funds to be delivered to [Holiday Isle] as
liquidated damages."
On March 28, 2007, the Town of Dauphin Island issued the
certificate of occupancy for the condominiums. On April 2,
2007, the purchasers conducted a pre-closing inspection of
their respective condominium units. Within the following week
the purchasers informed Holiday Isle that they would not close
on their condominium units because, they said, Holiday Isle
had not completed the condominiums by April 1, 2007, as
required by the purchase agreements. The purchasers also
requested that their letters of credit be returned to them.
In response, Holiday Isle contended that it had met its
obligations under the purchase agreements, and it set the
closing date for the purchasers' condominium units for April
30, 2007.
On April 27, 2007, Beth Adkins and J&R Investments
requested that the Mobile Circuit Court issue a temporary
1070202
4
restraining order ("TRO") preventing Holiday Isle from drawing
on the letters of credit. Contemporaneously with the filing
of the application for the TRO, Beth Adkins, David Adkins,
Nancy Whitten, and J&R Investments also sought a judgment
declaring
their
rights under the purchase agreements,
rescission of the purchase agreements, and an injunction
preventing Holiday Isle from drawing on the letters of credit.
On June 8, 2007, Holiday Isle moved to compel arbitration and
dismiss or stay the proceedings. After a hearing on the
motion on June 27, 2007, the trial court ordered the case to
arbitration on July 30, 2007.
On October 11, 2007, Holiday Isle objected to the request
for a TRO and an injunction by Beth Adkins and J&R
Investments. Holiday Isle argued that the trial court lacked
jurisdiction to enter an injunction against it because, it
said, the arbitrator now had jurisdiction over all the
disputes in the case. In the alternative, Holiday Isle argued
that the purchasers could not satisfy the requirements for
obtaining a TRO or an injunction. The purchasers replied that
the trial court retained jurisdiction to enter an injunction
1070202
5
and that the requirements for obtaining injunctive relief had
been satisfied.
On October 18, 2007, the trial court appointed an
arbitrator to resolve all the disputes between the parties and
issued a preliminary injunction to prevent Holiday Isle from
negotiating the letters of credit. The trial court's order
states that "[b]ecause the Letters of Credit are inextricably
intertwined with the arbitration issues, the Court hereby
ENJOINS the negotiation of the Letters of Credit by whoever is
holding
them,
until
this
matter
is
resolved
by
the
arbitrator." (Capitalization in original.) Holiday Isle
appealed the trial court's entry of the preliminary injunction
to this Court.
II. Standard of Review
We have often stated: "The decision to grant or to deny
a preliminary injunction is within the trial court's sound
discretion. In reviewing an order granting a preliminary
injunction, the Court determines whether the trial court
exceeded that discretion." SouthTrust Bank of Alabama, N.A.
v. Webb-Stiles Co., 931 So. 2d 706, 709 (Ala. 2005).
1070202
6
A preliminary injunction should be issued only when the
party seeking an injunction demonstrates:
"'(1) that without the injunction the [party] would
suffer irreparable injury; (2) that the [party] has
no adequate remedy at law; (3) that the [party] has
at least a reasonable chance of success on the
ultimate merits of his case; and (4) that the
hardship
imposed
on
the
[party
opposing
the
preliminary injunction] by the injunction would not
unreasonably outweigh the benefit accruing to the
[party seeking the injunction].'"
Ormco
Corp.
v.
Johns,
869
So.
2d
1109,
1113
(Ala.
2003)(quoting Perley v. Tapscan, Inc., 646 So. 2d 585, 587
(Ala. 1994)).
To the extent that the trial court's issuance of a
preliminary injunction is grounded only in questions of law
based on undisputed facts, our longstanding rule that we
review an injunction solely to determine whether the trial
court exceeded its discretion should not apply. We find the
rule applied by the United State Supreme Court in similar
situations to be persuasive: "We review the District Court's
legal rulings de novo and its ultimate decision to issue the
preliminary injunction for abuse of discretion." Gonzales v.
O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418,
428 (2006); see also Justice Murdock's special writing while
sitting as a judge on the Court of Civil Appeals in City of
1070202
Chief Justice Cobb's challenge in her dissent to the
1
fairness of the majority's sua sponte clarification of the
standard of review proceeds on the false premise that
adherence to the former standard would yield a different
result.
7
Dothan v. Eighty-Four West, Inc., 871 So. 2d 54, 60 (Ala. Civ.
App. 2003) (Murdock, J., concurring specially on application
for rehearing) (cited with approval in McGlathery v.
Richardson, 944 So. 2d 968, 970 (Ala. Civ. App. 2006)). To
the extent they conflict with our holding today, previous
expressions such as the one found in TFT, Inc. v. Warning
Systems, Inc., 751 So. 2d 1238, 1241-42 (Ala. 1999) ("The
applicable standard of review [of injunctive relief] depends
on whether the trial court entered a preliminary injunction or
a permanent injunction. A preliminary injunction is reviewed
under an abuse-of-discretion standard, whereas a permanent
injunction is reviewed de novo.") are hereby overruled.
1
III. Analysis
A. Jurisdiction
We must first determine whether the trial court had
jurisdiction to issue the preliminary injunction after it
ordered the dispute to arbitration. Holiday Isle contends
that the trial court retained only limited jurisdiction once
1070202
8
it compelled arbitration because, it says, the arbitration
clause, which is identical in all the purchase agreements,
does not reserve to the trial court any jurisdiction for
temporary or preliminary equitable relief. Holiday Isle
relies on the decision of the United States Court of Appeals
for the Eighth Circuit in Manion v. Nagin, 255 F.3d 535, 538-
39 (8th Cir. 2001), holding that "[i]n a case involving the
Federal Arbitration Act (FAA), courts should not grant
injunctive relief unless there is 'qualifying contractual
language' which permits it." Because, Holiday Isle asserts,
the purchase agreements do not contain "qualifying contractual
language" permitting the trial court to grant injunctive
relief, the purchase agreements provide no grounds for the
trial court to issue the preliminary injunction.
The purchasers respond by arguing that because, when the
trial court entered the preliminary injunction, the case was
not under the jurisdiction of any arbitration association and
an arbitrator had not been selected, "[t]he trial court, in
essence, was the only forum by which these matters could be
resolved." Purchasers' brief at p. 23. The purchase
agreements expressly provide that any arbitration proceedings
shall not be conducted through the American Arbitration
1070202
9
Association ("AAA"). However, the purchasers note that the
purchase agreements also provide that disputes are to be
submitted to arbitration under the Commercial Rules of the AAA
or as the parties may later agree in writing. The purchasers
further note that the Commercial Arbitration Rules of the AAA
allow a party to seek interim measures from a judicial
authority. Rule R-34(c) of the AAA's Commercial Rules
provides: "A request for interim measures addressed by a party
to a judicial authority shall not be deemed incompatible with
the agreement to arbitrate or a waiver of the right to
arbitrate." Nothing before us indicates that the parties, by
agreement
entered
into after
the purchase agreements,
displaced the choice of the AAA's Commercial Rules set forth
in the purchase agreements.
The purchasers also note that in Drago v. Holiday Isle,
L.L.C., 537 F. Supp. 2d 1219 (S.D. Ala. 2007), Holiday Isle
also relied upon Nagin to argue that the federal district
court lacked jurisdiction to issue an injunction because the
case had been stayed pending arbitration. The court in Drago
found that Nagin reflected a minority view and noted that the
"majority of federal courts ... have concluded that in limited
situations a binding arbitration clause does not bar a
1070202
10
plaintiff from seeking emergency injunctive relief or other
provisional remedies in court." 537 F. Supp. 2d at 1221. The
court in Drago specifically adopted the reasoning of the
Fourth Circuit Court of Appeals in Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Bradley, 756 F.2d 1048, 1052 (4th Cir.
1985), as a basis for concluding that it may order equitable
relief "where an arbitral award could not return the parties
substantially to the status quo." 537 F. Supp. 2d at 1222.
Here, if the trial court's preliminary injunction was
appropriately issued, it could be said that an arbitral award
would not return the parties to the status quo where the
proceeds of the letters of credit had previously been
disbursed to the beneficiary.
We therefore apply the Commercial Rules of the AAA
pursuant to the express terms of the purchase agreements and
conclude that the trial court had jurisdiction to enter a
preliminary injunction to order equitable relief to preserve
the status quo. Whether the trial court erred in entering
that injunction under the facts of this case is a separate
issue.
B. Merits
1070202
11
A letter of credit exists independently of the underlying
contract between a buyer and seller. See Benetton Servs.
Corp. v. Benedot, Inc., 551 So. 2d 295, 299 (Ala. 1989);
Southern Energy Homes, Inc. v. AmSouth Bank of Alabama, 709
So. 2d 1180, 1185 (Ala. 1998). "A letter of credit is a
financing engagement by an issuing bank, made at the request
of an applicant (or customer), to honor demands for payment by
the beneficiary of the credit, provided the terms and
conditions of the letter of credit are met." Southern Energy
Homes, Inc., 709 So. 2d at 1184 (citing § 7-5-103(1)(a), Ala.
Code 1975 (definition for "letter of credit" now found at § 7-
5-102(a)(10))). "The beneficiary of the standby credit
reasonably expects to receive payment from the issuer promptly
upon demand and before any litigation between the applicant
and the beneficiary may occur." 709 So. 2d at 1184 (citing
John Dolan, The Law of Letter of Credit: Commercial and
Standby Credits ¶¶ 3.06 & 3.07 (rev. ed. 1996). Thus, parties
choose a letter of credit over other types of financing "so
that they may have the benefit of prompt payment before any
litigation occurs." 709 So. 2d at 1185 (emphasis added).
Holiday Isle contends that the trial court erred in
enjoining it from negotiating the letters of credit because,
1070202
12
it says, Alabama law is well settled that the unique nature of
letters of credit and their role in the financial community
makes enjoining a letter of credit inappropriate. Holiday
Isle asserts that this Court has reversed every injunction
issued by a trial court preventing a beneficiary from drawing
on a letter of credit. See SouthTrust Bank of Alabama, N.A.,
931 So. 2d at 709, Textron Fin. Corp. v. Hayes, 619 So. 2d
1363 (Ala. 1993), Benetton Servs. Corp., 551 So. 2d at 299.
Holiday Isle also notes that in Southern Energy Homes, Inc.,
709 So. 2d at 1185-86, this Court held:
"We recognize that, as a general rule, letters of
credit cannot exist without independence from the
underlying transaction. [John Dolan, The Law of
Letter of Credit: Commercial and Standby Credits] at
¶ 2.09[5] [(rev. ed. 1996)]. Thus, when courts
begin 'delving into the underlying contract, they
are impeding the swift completion of the credit
transaction.' Id. 'The certainty of payment is the
most important aspect of a letter of credit
transaction, and this certainly encourages hesitant
parties to enter into transactions, by providing
them with a secure source of credit.' AmSouth v.
Martin, 559 So. 2d [1058] at 1062 [(Ala. 1990)]."
In Southern Energy Homes, Inc., this Court went on to note
that in a letter-of-credit transaction the parties "bargain
for the advantages and disadvantages of the credit" and held
that the trial court did not exceed its discretion by denying
the applicant's motion for a preliminary injunction preventing
1070202
13
the issuer from paying the letter of credit. 709 So. 2d at
1187-88.
The purchasers argue that the fact that the present case
deals with the purchase of condominium units, which is
governed by the Alabama Uniform Condominium Act, § 35-8A-101
et seq., Ala. Code 1975 ("the AUCA"), distinguishes it from
this Court's precedent holding that it is inappropriate to
enjoin the negotiation of letters of credit. The purchasers
note that the letters of credit satisfied the earnest-money
deposit on the purchase of the condominium units and note that
§ 35-8A-410, Ala. Code 1975, titled "Escrow of deposits,"
provides that a deposit for the purchase of a condominium unit
is held by an escrow agent until "(i) delivered to the
declarant at closing; (ii) delivered to the declarant because
of purchaser's default under a contract to purchase the unit;
or (iii) refunded to the purchaser." The purchasers further
contend that an escrow account established under the AUCA, and
the rights created by it, differ from a letter-of-credit
situation in which there is a simple contractual agreement
that the letter of credit will be paid upon demand. The
purchasers contend that under the AUCA the letter of credit is
deposited into an escrow account that is similar to a trust
1070202
14
fund and can be drawn up only if the developer of the
condominium has shown that the buyer has defaulted. Thus, the
purchasers assert that their letters of credit do not exist
independently of the underlying transaction to purchase the
condominiums and note that the Alabama Commentary to § 35-8A-
410 states:
"The act provides that the account holder shall
deliver these funds to the developer only at a sale
closing or 'because of the purchaser's default under
a contract to purchase the unit.' Thus, the
depository party has a duty of some care in being
persuaded by a developer that the buyer has
defaulted, at least where the buyer has notified the
depository party of a conflicting position."
(Emphasis added.) The purchasers argue that allowing Holiday
Isle to draw on the letters of credit when they contest their
default would violate § 35-8A-410.
Holiday Isle responds by arguing that the purchasers'
argument that their letters of credit are different from an
escrow deposit under § 35-8A-410 because the underlying
transaction involves the sale of condominium units is
meritless and has no legal support. We agree. Section 35-8A-
410 provides that "[a]ny deposit made in connection with the
purchase of a [condominium] unit" shall be held in escrow "by
a licensed title insurance company, an attorney, a licensed
1070202
Chief Justice Cobb's dissenting opinion accepts the
2
purchasers' contention that the letters of credit are
tantamount to trust funds, relying on the Alabama Commentary
to § 35-8A-410 dealing with protection of creditors of the
developer such as "the construction lender, material suppliers
or contractors." Of course, the purchasers are not within
that category.
15
real estate broker, or an institution whose accounts are
insured by a governmental agency or instrumentality until (i)
delivered to the declarant at closing; (ii) delivered to the
declarant because of the purchaser's default under a contract
to purchase the unit; or (iii) refunded to the purchaser."
Such language does not operate to preclude the parties from
entering into an agreement in which, in lieu of an earnest-
money deposit, a standby letter of credit is issued by a
neutral bank and is payable to the beneficiary upon the
purchaser's default.
2
The well-reasoned jurisprudence of this Court condemning
injunctions against drawing upon letters of credit is
fundamental and applies to the purchasers' failure to close on
the sale of the condominium units. If the proceeds of the
letters of credit are disbursed and the purchasers' default
cannot later be established, the purchasers' remedy is an
action at law against the beneficiary of the letters of credit
1070202
The dissenting opinion recites factual disputes that are
3
germane to the merits of the underlying controversy that gives
rise to the request for injunctive relief. The relevance of
these contested facts to a proceeding to enjoin the issuer
from honoring a letter of credit is limited to the
circumstances set forth in § 7-5-109, Ala. Code 1975,
authorizing an injunction to prevent a material fraud by the
beneficiary.
This
Court
is
committed
to
a
narrow
interpretation of the fraud exception to the general rule
against the issuance of injunctions in letter-of-credit
transactions. See Southern Energy Homes, Inc., 709 So. 2d at
1186 ("The extensive use of the fraud exception may operate to
transform the credit transaction into a surety contract.").
The commentary to § 7-5-109 describes extreme fact patterns
illustrative of when the fraud exception applies, such as
"'[w]here the circumstances "plainly" show that the underlying
contract forbids the beneficiary to call a letter of credit;
where they show that the contract deprives the beneficiary of
even a "colorable" right to do so; where the contract and
circumstances reveal that the beneficiary's demand for payment
has "absolutely no basis in fact"; where the beneficiary's
conduct has "so vitiated the entire transaction that the
legitimate purposes of the independence of the issuer's
obligation would no longer be served."'" (quoting Ground Air
Transfer v. Westates Airlines, 899 F.2d 1269, 1272-73 (1st
Cir. 1990) (citations omitted)). No allegation of fraud is
presented here. Further, the trial court's sole justification
for issuing the injunction was based on its conclusion that
"the Letters of Credit are inextricably intertwined with the
arbitration issues." Consequently, the mere presence of
factual disputes as to the merits of the underlying
controversy in this proceeding does not justify affirming the
award of injunctive relief.
16
or perhaps against the depository party for want of due care
in honoring the demand for payment as suggested by the Alabama
Commentary to § 35-8A-410, an issue not before us. Any other
3
construction of the terms of the standby letters of credit
1070202
17
would constitute judicial redrafting of the terms of the
purchase agreements, which we decline to do.
We hold that the trial court's rationale that the
negotiation of the letters of credit should be enjoined
because "the Letters of Credit are inextricably intertwined
with the arbitration issues" is contrary to the well-settled
law that letters of credit exist independently from the
underlying transaction. See Benneton Servs. Corp., 551 So. 2d
at 298-99, Southern Energy Homes, Inc., 709 So. 2d at 1185-
86.
The
purchasers
bargained
for
the
advantages
and
disadvantages of electing to use a letter of credit in lieu of
cash to satisfy their earnest-money deposit on the purchase of
the their condominium units, and the fact that the AUCA
provides that a deposit for a condominium unit is kept until
default occurs does not protect a purchaser from the universal
rule that an injunction preventing a beneficiary from drawing
on a letter of credit is inappropriate. "The certainty of
payment is the most important aspect of a letter of credit
transaction, and this certainty encourages hesitant parties to
enter into transactions, by providing them with a secure
source of credit." AmSouth Bank, N.A. v. Martin, 559 So. 2d
1058, 1062 (Ala. 1990). Accordingly, we hold that the trial
1070202
The record contains a letter from counsel for Surety Land
4
Title, Inc., which states that Surety had come into possession
of the purchasers' letters of credit at some point after Bay
Title Insurance Company, the escrow agent described in the
purchase agreements, had resigned. No document from Bay Title
corroborating Surety's assertion of Bay Title's resignation
appears in the record. The dissenting opinion states: "With
Holiday Isle in possession of the letters of credit instead of
Bay Title, the 'licensed title insurance company' agreed upon
by the parties, the purchasers have lost the benefit of a
neutral escrow agent, the entity charged with maintaining the
escrow trust fund with due care. This scenario creates the
need for the preliminary injunction prohibiting Holiday Isle
from negotiating the letters of credit without a favorable
ruling from the arbitrator." __ So. 2d at __. Even assuming
Bay Title had in fact resigned as escrow agent, the
controversy over the status of Bay Title or the authority of
Surety as its successor is immaterial because the purchase
agreements provide that the letters of credit were to be
delivered to Holiday Isle and were merely "assignable" to the
escrow
agent.
The
purchase
agreements
state:
"At
Purchaser'[s] election, in lieu of cash for satisfaction of
the Earnest Money Deposit, Purchaser, simultaneously with the
execution of this Agreement, may deliver to Developer (as
beneficiary), and assignable by Developer to Escrow Agent, a
standby letter of credit ...." The terms of the letters of
credit issued by the purchasers' respective banks authorized
Holiday Isle to make demand for payment directly upon the
banks. Holiday Isle now has possession of the letters of
credit. The dissenting opinion assumes, without foundation in
the purchase agreements, that Holiday Isle was required to use
the services of an escrow agent and that otherwise the
purchasers have no neutral party, when the banks that issued
the letters of credit have such status.
18
court erred in granting the purchasers' motion for a
preliminary injunction.
4
IV. Conclusion
1070202
19
The order of the trial court entering the preliminary
injunction is reversed, and the case is remanded with
instructions to dissolve the preliminary injunction.
REVERSED AND REMANDED WITH INSTRUCTIONS.
See, Woodall, Stuart, Smith, Bolin, and Parker, JJ.,
concur.
Murdock, J., concurs in the result.
Cobb, C.J., dissents.
1070202
For example, principles of fundamental fairness and due
5
process required this Court to limit the well-settled rule
that this Court may affirm a summary judgment it determines is
correct even when the trial court has based the summary
judgment on an incorrect legal analysis to those situations in
which both sides have received notice and an opportunity to
address the bases of the summary judgment. See Liberty Nat'l
Life Ins. Co. v. University of Alabama Health Servs. Found.,
P.C., 881 So. 2d 1013, 1020 (Ala. 2003). In this case, the
parties could not reasonably have anticipated that this Court
would change the standard of review for a preliminary
injunction; they have had no opportunity to frame their
arguments in light of the new standard. Similarly, the change
in the standard of review implemented by the Court in the
majority opinion cannot be applied fairly to the parties in
this case, even if the Court chooses to apply that change
prospectively.
20
COBB, Chief Justice (dissenting).
I respectfully dissent. Although I agree with the
majority that we should entertain reviewing a trial court's
preliminary injunction under a de novo rather than excess-of-
discretion standard, the circumstances in this case do not
warrant such a change. Fundamental fairness is denied the
parties in this case by not allowing them to brief and argue
their respective positions with an understanding of the
appropriate standard of appellate review. The parties did
5
not know that this Court would conclude that the facts
presented here would be deemed undisputed and that the
preliminary injunction would be subjected to a de novo review.
1070202
21
Indeed, the parties are likely to be as surprised as I am that
the majority, with little discussion and no fanfare, finds the
facts to be undisputed. Logic dictates that if the facts were
undisputed, Holiday Isle would have, instead of filing a
motion to compel arbitration and dismiss or stay the
proceedings, filed a motion for a summary judgment, which in
the absence of a genuine issue of material fact, would have
presented the query whether Holiday Isle was entitled to a
judgment as a matter of law. The trial court would not have
ordered this case to arbitration or enjoined the negotiation
of the letters of credit had it not concluded that the facts
are in dispute, particularly with respect to the underlying
issue -- whether the condominium units were completed within
two years of April 1, 2005, in accordance with the terms of
the purchase agreements.
The parties have not presented this Court with any
definitive findings or conclusions about the record, and
significant material differences exist about the facts to
dissuade me from applying a de novo review to the preliminary
injunction. On April 2, 2007, a date that was already beyond
the two-year completion term, when the purchasers conducted
the pre-closing inspection of their respective units, they
1070202
22
were instructed upon their arrival to wear hard hats or they
would not be allowed to enter the premises. Once inside the
condominium complex, the purchasers were met with a reception
area that was not glassed in, an elevator that did not appear
in working condition, and an incomplete parking deck. When
they reached their designated units, 104 and 105, the
purchasers found laborers still performing work. Holiday Isle
does not deny that the construction tasks noted by the
purchasers were not finished or that as of April 2, 2007, no
unit owner had been permitted to occupy the condominium or
even allowed ingress or egress without an escort and a hard
hat. Holiday Isle refused to return the letters of credit
after the purchasers notified it that because the units had
not been completed within two years of April 1, 2005, the
purchase agreements were void. The purchasers demanded the
return of their earnest-money deposit, i.e., their letters of
credit. Holiday Isle refused to return the letters of credit
and instead scheduled a closing date for April 30, 2007.
Holiday Isle contends that the work remaining to be done on
the units consisted only of "punch list items."
The purchasers performed another inspection of Holiday
Isle on April 23, 2007. They found unit 105 in much the same
1070202
23
condition as it had been on April 2, 2007. At this time, the
inspection of unit 105 also revealed problems with paint and
other defects. As for the condominium complex itself, the
purchasers noted that the pool and parking garage were
incomplete and that there were no permanent handrails on the
stairs. The purchasers were asked to leave the premises before
they could complete their inspection.
The facts concerning the ultimate holder of the letters
of credit are also troubling. Section 4 of the purchase
agreements provides that "Bay Title Insurance Company, Inc.
shall be the Escrow Agent." On April 27, 2007, counsel for the
purchasers wrote the escrow agent, Bay Title, informing it
that the purchasers were contesting any finding that they had
defaulted under the purchase agreements. Subsequently, the
purchasers became aware that Bay Title had resigned as escrow
agent, and the letters of credit were being held by Surety
Land Title, Inc. On July 13, 2007, Surety Land Title
delivered the letters of credit to Holiday Isle "since it did
not have any written authority to hold the letters of credit
nor any authority to draw on them." The purchasers dispute
that the purchase agreements or letters of credit were
modified in any way so as to authorize the appointment of a
1070202
24
new escrow agent, including Surety Land Title. It is
undisputed that Holiday Isle now possesses the letters of
credit. In support of the motion for a preliminary
injunction, the purchasers submitted evidence to the trial
court supporting the reasons for their concern about the
financial viability of Holiday Isle. The trial court was
provided information about subcontractors' liens and other
lawsuits
and/or
arbitration
proceedings
pending
and/or
threatened against Holiday Isle in connection with the
condominium complex.
Although precedent establishes that a letter of credit
generally exists independently of the underlying contract
between a buyer and a seller, none of the cases the majority
discusses involve a factual scenario, such as this one, that
is governed by the Alabama Uniform Condominium Act, § 35-8A-
101 et seq., Ala. Code 1975 ("the AUCA"). As the majority
acknowledges, a deposit for the purchase of a condominium
unit, whether cash or a letter of credit, is to be held by an
escrow agent until closing, until the purchaser defaults, or
until the deposit is refunded to the purchaser. The trial
court entered the preliminary injunction in this case
enjoining Holiday Isle from negotiating the letters of credit
1070202
25
until after the factual disputes are resolved by the appointed
arbitrator in arbitration requested by Holiday Isle and
compelled by the trial court. I agree with the trial court
that the letters of credit "are inextricably intertwined with
the arbitration issues." By holding that the trial court erred
in
granting
the
purchasers'
motion
for
a
preliminary
injunction, the majority has also effectively interfered with
the arbitration of the ultimate issue. The letters of credit
in this case were "in lieu" of the earnest-money deposit for
the purchase of the condominium units under § 2(B) of the
purchase agreements. According to § 35-8A-410, Ala. Code
1975, titled "Escrow of deposits," deposits in connection with
the purchase of a condominium unit shall be held in escrow "by
a licensed title insurance company, an attorney, a licensed
real estate broker or an institution whose accounts are
insured by a governmental agency or instrumentality until (i)
delivered to the declarant at closing; (ii) delivered to the
declarant because of the purchaser's default under a contract
to purchase the unit; or (iii) refunded to the purchaser."
The escrow deposits mandated by § 35-8A-410 do not
present an ordinary letter-of-credit situation. According to
the Alabama Commentary to § 35-8A-410, the funds held in
1070202
26
escrow are similar to a trust fund: "Equally important, the
funds on deposit should be regarded in a manner somewhat
similar to a trust fund, such that creditors of the developer,
whether the construction lender, material suppliers or
contractors, may not reach these funds to satisfy their claims
against an insolvent developer." (Emphasis added.) If Holiday
Isle is allowed, as the majority holds, to negotiate the
letters of credit before arbitration is completed, the purpose
of the Alabama Legislature in enacting § 35-8A-410 will be
frustrated. The possibility exists that, before the parties
can arbitrate their dispute, creditors of Holiday Isle may
make a claim on the letters of credit as soon as they are
converted to cash. As argued throughout the purchasers'
brief, the injunction in this case provides a close analogy,
both legally and equitably, to a constructive trust. The
constructive-trust-fund nature of the letters of credit will
be lost as soon as the preliminary injunction is dissolved.
In questionable violation of § 35-8A-410 of the AUCA,
Holiday Isle is now acting as the escrow agent. This
undisputed fact makes the need for a preliminary injunction,
in order to avoid irreparable harm to the purchasers, of
paramount importance. Under the express terms of the purchase
1070202
27
agreements and § 35-8A-410, Holiday Isle is not an authorized
escrow agent. An escrow agent is generally considered to be
the agent of both parties to an escrow agreement. See Fisher
v. Comer Plantation, Inc., 772 So. 2d 455 (Ala. 2000); Gurley
v. Bank of Huntsville, 349 So. 2d 43 (Ala. 1977). With
Holiday Isle in possession of the letters of credit instead of
Bay Title, the "licensed title insurance company" agreed upon
by the parties, the purchasers have lost the benefit of a
neutral escrow agent, the entity charged with maintaining the
escrow trust fund with due care. This scenario creates the
need for the preliminary injunction prohibiting Holiday Isle
from negotiating the letters of credit without a favorable
ruling from the arbitrator.
Because Holiday Isle has appealed the order of the trial
court issuing the preliminary injunction, as soon as the trial
court dissolves the preliminary injunction on remand, Holiday
Isle will presumably negotiate the letters of credit in its
possession before arbitration is completed. If the arbitrator
finds a genuine and material factual dispute over whether
Holiday Isle completed the condominium units within the
defined two-year period and then rules in favor of the
purchasers, the dissolution of the preliminary injunction may
1070202
28
have caused irreparable harm to the purchasers. The majority
chooses not to address this potential outcome other than to
propose "the purchasers' remedy is an action at law against
the beneficiary of the letters of credit [Holiday Isle] or
perhaps against the depository party for want of due care in
honoring the demand for payment as suggested by the Alabama
Commentary to § 35-8A-410." ___ So. 2d at ___. This
conclusory statement by the majority does not address the
legitimate concern of the purchasers that Holiday Isle may not
be able to pay a future monetary judgment in their favor if
Holiday Isle is allowed to negotiate the letters of credit
before arbitration is completed. Nor does the majority
address the quandary presented by the fact that Holiday Isle,
rather than the agreed upon escrow agent, Bay Title, is in
possession of the letters of credit.
Inadequacy of a remedy at law justifying an injunction
may arise from the insolvency of the defendant. Martin v.
First Federal Sav. & Loan Ass'n of Andalusia, 559 So. 2d 1075
(Ala. 1990)(preliminary injunction issued against a mortgage
servicing company in financial difficulty that was continuing
to collect mortgage payments after its servicing contract was
terminated); Shelton v. Shelton, 238 Ala. 489, 192 So. 55
1070202
29
(1939). When a defendant, as here, is the holder of a
property interest and its holding of that interest is disputed
as unjust, unconscionable, or unlawful, a constructive trust
can be imposed. See Ex parte Morton, 261 Ala. 581, 75 So. 2d
500 (1954). However, in order to obtain a constructive trust,
it is not essential to prove the inadequacy of a remedy at
law. 261 Ala. at 592, 75 So. 2d at 511. The issue whether a
constructive trust results is one of fact. Pollution Control-
Walther, Inc. v. Belzer, 406 So. 2d 372 (Ala. 1981).
Constructive trusts can and have been imposed. See Holman v.
Kruk, 485 So. 2d 715 (Ala. 1986) (constructive trust imposed
upon minor's Social Security funds that sister had spent);
Snellings v. Builders' Supply Co., 228 Ala. 47, 152 So. 459
(1934) (constructive trust imposed upon proceeds of mortgage
created for benefit of plaintiffs).
The preliminary injunction issued by the trial court in
the instant case is tantamount to a constructive trust over
the letters of credit, especially in light of the fact that
Holiday Isle, instead of a neutral escrow agent as required by
§ 35-8A-410, exercises control over the letters. A preliminary
injunction has been found to be appropriate to preserve the
status quo and to prevent dissipation of funds in a
1070202
30
constructive trust when there are specific identifiable funds
that the defendant has refused to turn over. See Georgia
Banking Co. v. GMC Lending & Mortgage Servs. Corp., 923 So. 2d
1224 (Fla. Dist. Ct. App. 2006). The letters of credit at
issue involve specific identifiable funds of the purchasers,
akin to "trust funds," as explained by the Alabama Commentary
to § 35-8A-410.
Under our precedent, a preliminary injunction may be
issued when: (1) the requesting party would suffer irreparable
harm without the injunction; (2) the requesting party has no
adequate remedy at law; (3) the requesting party has at least
a reasonable chance of success on the ultimate merits; and (4)
the
hardship
imposed
on
the
adverse
party
would
not
unreasonably outweigh the benefit accruing to the requesting
party. Southtrust Bank of Alabama, N.A. v. Webb-Stiles Co.,
931 So. 2d 706, 708 (Ala. 2005) (quoting Ormco Corp. v.
Johns, 869 So. 2d 1109, 1113 (Ala. 2003), quoting in turn
Perley v. Tapscan, Inc., 646 So. 2d 585, 587 (Ala. 1994)).
In Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Bradley, 756
F.2d 1048, 1052 (4th Cir. 1985), the United States Court of
Appeals for the Fourth Circuit held that equitable relief is
appropriate when an arbitral award could not return the
1070202
31
parties substantially to the status quo, particularly if the
enjoined conduct would render the arbitration process a
"hollow formality," i.e., "'the arbitral award when rendered
could not return the parties substantially to the status quo
ante.'" (Quoting Lever Bros. v. International Chem. Workers
Union, Local 217, 554 F.2d 115, 123 (4th Cir. 1976).) The
majority of federal courts to rule on the question have
concluded that in limited situations a binding arbitration
agreement does not bar a plaintiff from seeking emergency
injunctive relief or other provisional remedies. Performance
Unlimited, Inc. v. Publishers, Inc., 52 F.3d 1373 (6th Cir.
1995). Clearly, in the instant case, the only way to
preserve the status quo is to enjoin Holiday Isle from
negotiating the letters of credit until after the arbitrator
rules on the ultimate issue -- whether either party violated
the purchase agreements.
The majority's conclusion is in conflict with the purpose
and intent of the AUCA. Because of the length of time needed
to complete a new condominium complex, it is common practice
for letters of credit rather than cash deposits to be used to
secure preconstruction agreements. The majority's holding
that such letters of credit are not directly tied to the
1070202
32
underlying purchase agreements may thwart the use of such
financing arrangements in the future. Thus, I disagree that
this case warrants a change in the standard of review for a
preliminary injunction. In determining if a trial court
properly issued a preliminary injunction, the standard of
review is whether the trial court exceeded its discretion in
doing so. Baldwin County Elec. Membership Corp. v. Catreet,
942 So. 2d 337, 344 (Ala. 2006) ("'[I]f it cannot be shown
that the trial court exceeded its discretion in either
granting or refusing to grant a preliminary injunction, the
court's "action will not be disturbed on appeal."'" (quoting
Johnson v. Willis, 893 So. 2d 1138, 1141 (Ala. 2004), quoting
in turn Teleprompter of Mobile, Inc. v. Bayou Cable TV, 428
So. 2d 17, 19 (Ala. 1983))). A trial court exceeds its
discretion when it "exceed[s] the bounds of reason, all the
circumstances before the lower court being considered." Valley
Heating, Cooling, & Elec. Co. v. Alabama Gas Corp., 286 Ala.
79, 82, 237 So. 2d 470, 472 (1970).
The record before this Court establishes that the
purchasers have a reasonable chance of success on the ultimate
merits and that Holiday Isle has not set forth evidence of any
undue hardship it will endure by waiting for arbitration, a
1070202
33
proceeding affirmatively sought by Holiday Isle, to be
completed. In light of the material facts in dispute, which
are inextricably intertwined with the letters of credit,
combined with the possibility of irreparable harm to the
purchasers if the status quo is not maintained, I cannot
conclude that the trial court exceeded its discretion in
issuing the preliminary injunction pending the outcome of
arbitration. Accordingly, I dissent. | May 23, 2008 |
c7c42370-4680-481d-a94d-52f8ac39bde7 | Fort James Operating Company, Inc. v. William J. Stephens | N/A | 1061001 | Alabama | Alabama Supreme Court | Before taking office as a judge on the Alabama Court of
1
Civil Appeals in January 2007, Judge Terry Moore served as
counsel for Fort James Operating Company, Inc., while this
action was pending in the trial court. Therefore, on April
13, 2007, the Court of Civil Appeals transferred the case to
this Court pursuant to § 12-3-15, Ala. Code 1975.
rel: 05/30/2008
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, 2007-2008
_________________________
1061001
_________________________
Fort James Operating Company, Inc.
v.
William J. Stephens
Appeal from Choctaw Circuit Court
(CV-01-54)
On Application for Rehearing
BOLIN, Justice.1
1061001
2
This court's opinion of November 30, 2007, is withdrawn,
and the following is substituted therefor.
William J. Stephens sued his employer, Fort James
Operating Company, Inc. ("Fort James"), on March 15, 2001,
seeking to recover worker's compensation benefits for injuries
he allegedly suffered to his right knee and his neck during
the course of his employment with Fort James. Fort James
answered the complaint on April 24, 2001, admitting that
Stephens suffered an injury to his right knee during the
course of his employment but denying that the knee injury
caused Stephens to suffer a permanent injury, lost work time,
or lost wages or that it required surgery. In its answer,
Fort James also denied that Stephens had suffered a neck
injury during the course of his employment. Additionally,
Fort James asserted certain affirmative defenses, including a
setoff for the salary paid to Stephens during the benefit
period.
Following an ore tenus proceeding, the trial court, on
November 9, 2005, entered an order finding that Stephens had
suffered a 35% permanent partial disability to the whole body
as the result of the injuries to his knee and neck; awarded
1061001
3
Stephens worker's compensation benefits in the amount of
$60,312; awarded Stephens's attorney an attorney fee of
$9,046.80; and taxed costs to Fort James.
On December 7, 2005, Stephens moved the trial court to
amend its judgment to include a finding of the dates Stephens
reached maximum medical improvement ("MMI") for the injuries
to his knee and neck. On December 8, 2005, Fort James moved
the trial court to amend its judgment, alleging that the order
contained factual errors and errors in legal reasoning. The
trial court granted Stephens's postjudgment motion by amending
its order and finding that Stephens had reached MMI for the
knee injury on December 8, 1999, and for the neck injury on
March 23, 2000. Fort James's postjudgment motion was denied by
operation of law on March 8, 2006; Fort James appeals.
Standard of Review
In a worker's compensation case, the appellate court
reviews the "standard of proof ... and other legal issues
without a presumption of correctness." § 25-5-81(e)(1), Ala.
Code 1975; see also Ex parte Professional Bus. Owners Ass'n
Workers' Comp. Fund, 867 So. 2d 1099, 1102 (Ala. 2003). A
trial court's judgment in a worker's compensation case based
1061001
4
on pure findings of fact will not be reversed if it is
supported by substantial evidence. § 25-5-81(e)(2), Ala. Code
1975. "[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)).
"Therefore, in such a case the appellate 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 at 1102. "Moreover, the Court of Civil
Appeals observed in Edwards v. Jesse Stutts, Inc., 655 So. 2d
1012, 1014 (Ala. Civ. App. 1995), that 'the [1992 Workers'
Compensation] Act did not alter the rule that this court does
not weigh the evidence before the trial court.'" Ex parte
Phenix Rental Ctr., 873 So. 2d 226, 229 (Ala. 2003).
Facts
1061001
5
At the time of the accident giving rise to this
complaint, Stephens was 59 years old and had been employed by
Fort James and its predecessors for approximately 40 years;
his average weekly earnings were $1,307.58. On November 6,
1997, while working in his position as a "crew trainer,"
Stephens slipped in a patch of oil and "hyperextended" his
right knee. Stephens completed his shift and did not report
the accident at that time. However, Stephens's right knee
became swollen and painful overnight, prompting him to report
the accident to his supervisor the following day. Stephens
received first-aid treatment from Fort James, but his knee
continued to be symptomatic, and he was referred by Fort James
to Dr. Terry French for evaluation.
Stephens was first seen by Dr. French on January 16,
1998, complaining of pain and a popping sensation in the knee
when he engaged in activities such as squatting, bending, and
climbing. Dr. French examined Stephens's knee and concluded
that he had a possible torn medial meniscus ligament.
Although Dr. French placed Stephens's knee in a support,
prescribed
anti-inflammatory
medication,
and
restricted
1061001
6
Stephens from climbing ladders, Stephens otherwise was
released by Dr. French to full activity.
Dr.
French
continued
to
treat
Stephens's
knee
conservatively, including injections of anti-inflammatory
medication. Stephens was seen by Dr. French on February 2,
1998, complaining of tenderness in the knee with activities.
Dr. French noted at that time that Stephens had a full range
of motion in the knee with tenderness over the anserine bursa.
Dr. French concluded that Stephens did not have a torn medial
meniscus ligament but, rather, that he suffered from bursitis
in the knee. Stephens returned to Dr. French on February 12,
1998, and reported that although he had had complete relief
from the knee pain following the injections, the pain had
slowly begun to recur. Dr. French noted that Stephens had a
full range of motion in his knee and that there was no
swelling and only localized tenderness over the anserine
bursa. Dr. French again injected the knee with anti-
inflammatory medication, continued Stephens on limited work
duty for 10 days, and told him that if he had any further
problems with the knee Dr. French would refer him to a
orthopedist.
1061001
7
While Stephens was being treated by Dr. French he did not
miss any time from work, and he was able to perform all the
duties associated with his job. After Stephens was released by
Dr. French, he did not miss any time from work because of his
knee, and he performed his job without restrictions.
Stephens did not see Dr. French again until he returned
on January 22, 1999, with continued complaints of pain in his
right knee. Dr. French examined Stephens's knee and noted some
swelling and tenderness over the anterior medial aspect of the
knee. Dr. French referred Stephens to Dr. Gus A. Rush III, an
orthopedic surgeon. Stephens was first seen by Dr. Rush on
January 26, 1999. Dr. Rush examined Stephens's knee and
suspected that he had a torn medial meniscus ligament. He
recommended diagnostic arthroscopic surgery to confirm the
diagnosis and to repair the knee. On April 5, 1999, Dr. Rush
performed
arthroscopic surgery on Stephens's knee
and
confirmed a partial tear of the medial meniscus ligament as
well as a complete tear of the anterior cruciate ligament.
Dr. Rush repaired both tears.
Stephens returned to Dr. Rush on April 13, 1999. Dr. Rush
noted that at that time Stephens was doing well with a full
1061001
8
range of motion and more stability in the knee than he had had
before the surgery. Stephens had been provided crutches
following his knee surgery, and Dr. Rush noted that Stephens
should "wean [himself] from the crutches." Dr. Rush also
fitted Stephens for a knee brace and prescribed physical
therapy.
Stephens testified that on April 13, 1999, as he was
entering his house, the left crutch slipped off the steps,
causing him to jam his right shoulder in an upward motion.
Stephens stated that he experienced a burning and stinging
sensation in the right side of his neck. Approximately two
weeks later, Stephens's left crutch again slipped while he was
entering the first-aid station at Fort James, causing his
right shoulder again to be jammed in an upward motion. He
testified that he again experienced a burning sensation in the
right side of his neck.
Stephens had suffered from arthritis in his neck since
1987. Stephens stated that arthritis pain would radiate
through his right shoulder into his forearm and cause numbness
in his right hand. Stephens had previously been treated for
the arthritic condition in his neck, including being
1061001
9
prescribed medication, and he stated that the symptoms would
always resolve. However, he testified that the symptoms in
his neck have intensified and persisted since the two
incidents involving the crutches.
Stephens returned to Dr. Rush on May 4, 1999. Dr. Rush
noted that Stephens's knee was doing well and that he had a
full range of motion in the knee. Dr. Rush continued
Stephens's physical therapy and recommended that he not wear
the knee brace inside his house. Dr. Rush also noted at that
time that Stephens reported a flare-up of the arthritis in
his neck with pain radiating into his shoulder and arm. Upon
examination, Dr. Rush noted irritation of the C-5 nerve root
on the right side and a limited range of motion in the
cervical spine. Dr. Rush recommended an injection of anti-
inflammatory
medication
and
referred
Stephens
to
a
neurosurgeon.
Stephens was seen on May 18, 1999, by Dr. John C. Neill,
a neurosurgeon, for his neck and right-shoulder complaints.
Stephens related to Dr. Neill that approximately one week
after his knee surgery he began experiencing pain in his right
shoulder that radiated into his right arm. Stephens told Dr.
1061001
10
Neill that he could tilt his head to the left and would then
have almost total relief from his symptoms. He also told Dr.
Neill that the pain was not constant. Following his
examination, Dr. Neill noted that Stephens had some weakness
in his right triceps muscle and diminished right triceps
reflex. Dr. Neill concluded that Stephens's pattern of pain
and weakness would suggest a C-7 nerve-root syndrome. Dr.
Neill noted that the condition could resolve spontaneously and
that the best course of action was observation. He told
Stephens to return in three weeks for a follow-up visit.
Stephens returned to light-duty work at Fort James on May
25, 1999, with the following restrictions: no squatting,
kneeling, climbing, lifting over 25 pounds, or long-distance
walking. Although Stephens was on restricted duty he returned
to his regular job and he was earning his regular wage.
Stephens continued to receive physical therapy for his knee as
prescribed by Dr. Rush but did not receive any physical
therapy for his neck. Earlier in his physical therapy Stephens
had reported to his therapist that the therapy for his knee
was aggravating his neck and arm pain. On June 3, 1999,
1061001
Dr. Neill's office is located in Jackson, Mississippi.
2
11
Stephens's physical therapist noted that his neck and arm
complaints were better.
Stephens did not return to Dr. Neill as scheduled three
weeks after his first visit; rather, Lynn Love, Stephens's
case manager, telephoned Dr. Neill's office on June 7, 1999,
and stated that Stephens's neck symptoms had resolved and that
he would not be returning for a follow-up visit. Dr. Neill
testified that, based on the information his office had
received from Love, the date of MMI for Stephens's neck was
June 7, 1999, and Stephens had no permanent impairment from
the injury. Stephens denied that his neck and arm symptoms had
resolved; he testified that he canceled the appointment with
Dr. Neill because he did not like Dr. Neill's attitude and
because it was an excessively long drive to Dr. Neill's
office.2
Stephens returned to Dr. Rush on July 16, 1999, for a
follow-up visit for his knee. Dr. Rush noted that overall
Stephens was doing well with the knee. Dr. Rush continued
Stephens on light-duty work for four to six weeks. Stephens
was released from physical therapy for his knee on August 19,
1061001
12
1999, with the therapist noting at that time that Stephens had
a full range of motion and normal strength levels in the knee.
Stephens returned to Dr. Rush for a final visit on September
14, 1999. Dr. Rush noted at that time that the anterior
cruciate ligament was stable and that overall Stephens was
doing well with his knee. Dr. Rush further noted that Stephens
should refrain from using the knee brace except for strenuous
activities and returned him to regular-duty work limited only
to 12-hour shifts for 2 months. Dr. Rush assigned Stephens a
permanent-impairment rating of 5% to 8% for the knee and
stated that he would reach MMI on October 14, 1999.
After Stephens was released by Dr. Rush, he wanted a
second opinion as to his knee, so Fort James provided him with
a panel of four physicians; he chose Dr. Steven R. Nichols, an
orthopedic surgeon. Stephens was first seen by Dr. Nichols on
November 4, 1999. Dr. Nichols noted that Stephens's knee was
tender, swollen, and unstable. His impression was that
Stephens suffered from post-anterior cruciate-reconstruction
instability
and
post-traumatic
arthritis.
Dr.
Nichols
prescribed anti-inflammatory medication, ordered strength and
stability tests for the knee, and continued Stephens on light-
1061001
13
duty work. The stability test indicated that Stephens had
"good" stability in the knee and the strength test placed
Stephens in the 74th percentile as his knee strength related
to the rest of the population.
Stephens had questioned Dr. Nichols about his ability to
return to full-duty work at Fort James, so Dr. Nichols ordered
a functional-capacities evaluation, which was performed on
November 30, 1999. Stephens returned to Dr. Nichols on
December 8, 1999, for the results of the functional-capacities
evaluation. Based on the results of the functional-capacities
evaluation, Dr. Nichols released Stephens to return to full-
duty work with restrictions of no lifting anything over 60
pounds and no prolonged squatting or crawling. Dr. Nichols
determined that Stephens had reached MMI with his knee at that
time. He assigned Stephens a permanent-impairment rating of
5% to the knee.
In January 2000, Fort James phased out Stephens's
position as a "crew trainer" and transferred him to the
"machine tender" position. He was able to perform the full
duties
of
the
"machine
tender"
position
within
the
restrictions assigned by Dr. Nichols. Stephens earned a
1061001
Even though Stephens had been seen by several health-care
3
professionals on numerous occasions between June 1999 and
March 2000, there were no documented complaints of neck and
arm pain. However, Stephens testified that he had continuous
neck and right-arm pain since the incidents involving the
crutches in April 1999 and that he did not mention his neck
complaints on those occasions because he was not being treated
by those individuals for his neck symptoms. Dr. Nichols
testified that Stephens may have mentioned his neck complaints
to him before March 8, 2000, but that, if he did, Dr. Nichols
stated that he discouraged Stephens from talking about it,
choosing to focus only on the knee symptoms.
14
slightly higher weekly wage as a "machine tender" than he did
as a "crew trainer."
On March 8, 2000, Stephens returned to Dr. Nichols with
continued complaints of pain in his neck that radiated into
his right shoulder and arm. Stephens related to Dr. Nichols
3
on this visit the two incidents involving the crutches and
told him that his symptoms had persisted since that time. On
examination, Dr. Nichols was able to reproduce pain with
hyperflexion of the neck that was relieved by rotating the
head to the left. X-rays were taken; the X-rays revealed
arthritis at the C-5, C-6, and C-7 vertebrae levels. Dr.
Nichols prescribed anti-inflammatory medication and ordered a
cervical myelogram and CT scan.
Stephens returned to Dr. Nichols on March 23, 2000. Dr.
Nichols noted at that time:
1061001
15
"[Stephens] had a cervical myelogram and CT scan
this
morning
which
reveals
a
considerable
spondylosis with a foraminal stenosis bilaterally at
[the C-4-5, C-5-6, and C-6-7 vertebrae levels] with
compression of the fifth, sixth and seventh nerve
roots. He tells me that the Celebrex [brand non-
steroidal
anti-inflammatory drug] seems to be
helping a good deal, eliminating some of the
cramping and shocking sensation. He still has some
residual soreness at the base of the neck. I would
suggest that we continue with the Celebrex for now.
In addition, we have given him a few Ultram [brand
pain reliever] for more severe pain .... [F]or all
practical purposes, he is at MMI with regards to his
cervical spine. We will plan to follow up as
necessary."
Stephens was next seen by Dr. Nichols on September 14,
2000, with continued complaints of pain in his neck and right
arm. Dr. Nichols continued Stephens on the anti-inflammatory
medications and referred him for a new functional-capacities
evaluation and impairment rating. Following the functional-
capacities evaluation, Stephens was assigned a permanent-
partial-impairment rating of 15% for the neck. Dr. Nichols
testified that Stephens's neck condition would quite possibly
continue to deteriorate to the point that he would eventually
require surgery.
Stephens continued to work at Fort James, receiving his
regular wage, until he retired on November 29, 2000. Stephens
was able to perform the duties of his job as a "machine
1061001
16
tender" under the restrictions prescribed by Dr. Nichols.
However, he testified that he eventually lost the grip
strength in his right hand and that he could no longer make
the manual adjustments to the machine as required and could no
longer climb or balance himself on the machine because of his
knee injury.
Discussion
Fort James argues that the trial court erred in finding
that March 23, 2000, was the date Stephens reached MMI for his
neck
injury.
Specifically,
Fort
James
contends
that
Stephens's neck injury had stabilized by June 7, 1999, and
that all medical treatment involving the neck from that point
forward was merely diagnostic in nature. Thus, Fort James
contends that the actual date of MMI for Stephens's neck
injury was June 7, 1999.
The Court of Civil Appeals has stated:
"It is well settled that in order for an employee to
recover
permanent
partial
or
permanent
total
disability benefits the employee must have reached
MMI. Ex parte Phenix Rental Ctr., 873 So. 2d 226
(Ala. 2003); Hillery v. MacMillan Bloedel, Inc., 717
So. 2d 824 (Ala. Civ. App. 1998); Edward Wiggins
Logging Co. v. Wiggins, 603 So. 2d 1094 (Ala. Civ.
App. 1992); Pemco Aeroplex, Inc. v. Johnson, 634 So.
2d
1018
(Ala.
Civ.
App.
1994);
and
Alabama
By-Products Corp. v. Lolley, 506 So. 2d 343 (Ala.
1061001
17
Civ. App. 1987). A claimant has reached MMI when
'there is no further medical care or treatment that
could be reasonably anticipated to lessen the
claimant's disability.' G.UB.MK. Constructors v.
Traffanstedt, 726 So. 2d 704, 709 (Ala. Civ. App.
1998). When MMI is reached depends on the
circumstances of the particular case. Hillery v.
MacMillan Bloedel, Inc., supra; Pemco Aeroplex, Inc.
v. Johnson, supra."
Halsey v. Dillard's, Inc., 897 So. 2d 1142, 1148 (Ala. Civ.
App. 2004). "While the treating physicians generally provide
the best evidence concerning maximum medical improvement, the
trial court is not bound by their opinions in assigning the
date of maximum medical improvement." 1 Terry A. Moore,
Alabama's Workers' Compensation § 13:6 (1998) (footnote
omitted). See also Guardian Cos. v. Kennedy, 603 So. 2d 1053
(Ala. Civ. App. 1992).
The evidence indicates that Dr. Neill determined that
Stephens had reached MMI on June 7, 1999, based on
information received by the case manager informing him that
Stephens's neck symptoms had resolved and that Stephens was
canceling his follow-up appointment. However, Stephens denied
that his symptoms had resolved and stated that he had
canceled the appointment because he did not like Dr. Neill
and because his office, located in Jackson, Mississippi, was
1061001
18
too far away for Stephens to drive. Rather, Stephens
testified that his neck symptoms persisted. When Dr. Nichols
examined Stephens on March 8, 2000, he was able to reproduce
pain with hyperflexion of the neck. X-rays indicated that
Stephens had arthritis at the C-5, C-6, and C-7 vertebrae
levels.
A
cervical
myelogram
and
CT
scan
revealed
considerable arthritis with foraminal stenosis and nerve-root
compression at the C-4-5, C-5-6, and C-6-7 vertebrae levels.
Dr. Nichols had prescribed anti-inflammatory and pain
medication for Stephens. Dr. Nichols, an authorized treating
physician, determined that Stephens had reached MMI on March
23, 2000. More importantly Dr. Nichols testified that
Stephens's condition would quite possibly continue to
deteriorate to the point that he would require surgery. See
Sunshine Jr. Stores, Inc. v. Dower, 625 So. 2d 445 (Ala. Civ.
App. 1993)(holding that the trial court could find MMI even
though employee had not been offered surgery that might
lessen her disability).
As stated above, it is not this Court's role to reweigh
the evidence on appeal. After reviewing the record in this
case, we conclude that substantial evidence exists from which
1061001
The period between December 8, 1999, and November 29,
4
2000, is closer to 50 weeks; however, this period included two
weeks in which Stephens was on unpaid vacation and received no
wages from Fort James.
19
the trial court could have concluded that Stephens did not
reach MMI until March 23, 2000.
Fort James next argues that the trial court erred in
failing to offset, pursuant to § 25-5-57(c)(3), Ala. Code
1975, the worker's compensation benefits it owes Stephens by
the 48 weeks of regular wages it paid Stephens during the
period of December 8, 1999, the date of MMI of the knee
injury, through November 29, 2000, the date stipulated to as
Stephens's
retirement date.
Section
25-5-57(c)(3),
Ala.
Code
4
1975, provides that if an employee receives a salary "during
the benefit period ... the employer shall be allowed a setoff
in weeks against the compensation owed under this article."
In order for an employee to receive permanent-partial or
permanent-total-disability benefits, the employee must have
reached MMI. Ex parte Phenix Rental Ctr., supra.
The trial court awarded Stephens permanent-partial-
disability benefits at a rate of $220 per week for 300 weeks.
The trial court did not compensate Stephens's knee injury and
neck injury separately; rather, it found that Stephens had
1061001
See note 7, infra.
5
20
suffered a 35% permanent partial disability based on a
combination of the injuries. Fort James again contends that
Stephens reached MMI for his neck injury on June 7, 1999, and
that he reached MMI for his knee injury on December 8, 1999.
Therefore, Fort James argues that the latest Stephens reached
MMI for the combined injuries was December 8, 1999, and that
by statute it is entitled to a credit for the 48 weeks of
wages it paid Stephens from December 8, 1999, through
November 29, 2000.
As stated above, substantial evidence exists to support
the trial court's finding that Stephens did not reach MMI as
to his neck injury until March 23, 2000. Therefore, under
Fort James's reasoning, March 23, 2000, is the date Stephens
reached MMI for the combined injuries. The record indicates
that Stephens was paid his regular wage from March 23, 2000,
until he retired on November 29, 2000. Accordingly, we
conclude that Fort James is entitled to offset the benefits
it owes Stephens by the number of weeks Fort James paid
Stephens's wages during the period of March 23, 2000, through
November 29, 2000.5
1061001
21
Relying on § 25-5-89, Ala. Code 1975, Fort James next
argues that the trial court erred in awarding Stephens costs.
Section 25-5-89, Ala. Code 1975, provides:
"Costs may be awarded by said court in its
discretion, and, when so awarded, the same costs
shall be allowed, taxed and collected as for like
services and proceedings in civil cases, but if it
shall appear that the employer, prior to the
commencement of the action, made to the person or
persons
entitled
thereto
a
written
offer
of
compensation in specific terms, which terms were in
accordance with the provisions of this article and
Article 2 of this chapter, then no costs shall be
awarded or taxed against such employer."
Fort James offered to pay Stephens benefits at a rate of
$183.05 for 287 weeks, which offer was contained in an
"Agreement and Petition for Approval of Settlement" signed by
Stephens on March 12, 2001. Stephens filed his worker's
compensation complaint on March 15, 2001. Fort James contends
that had Stephens accepted its offer he would have received
$52,535.35 in benefits and that that amount exceeds the
$49,752 in benefits that Fort James says Stephens is actually
entitled to receive in this case. Therefore, Fort James
argues that the trial court erred in taxing costs of
$6,915.11 against it.
1061001
This sum is based on the clear terms of the settlement
6
agreement. The settlement agreement did not address the
$5,688 credit Fort James is entitled to receive for temporary-
total-disability benefits paid to Stephens. If the credit is
applied to the amount arrived at by the settlement agreement,
the settlement would actually equal $46,847.35.
22
The $52,535.35 in benefits Fort James says Stephens would
have received under the settlement agreement is based on
benefits of $183.05 per week for 287 weeks ($183.05 x 287 =
$52,535.35). The sum of $49,752 in benefits Fort James
6
claims Stephens is actually entitled to receive is based on
a MMI date of December 8, 1999, which equates to a 48-week
credit against the maximum benefit period of 300 weeks.
Thus, Fort James reaches the sum of $49,752 based on a weekly
benefit of $220 for 252 weeks (300 weeks less the 48-week
credit) with a credit of $5,688 to Fort James for temporary-
total-disability benefits paid to Stephens ($220 x 252 -
$5,688 = $49,752).
As discussed above, however, the evidence supports the
trial court's finding that Stephens reached MMI on March 23,
2000. The record indicates that Fort James paid Stephens a
regular wage for 35 weeks during the period of March 23,
1061001
The record indicates that Stephens received a week of
7
paid vacation from Fort James the work week ending Friday,
August 4, 2000. This week was not counted toward the wage
credit given to Fort James, thus resulting in a 35-week-wage
credit being given to Fort James rather than a 36-week-wage
credit. In Fort James Operating Co. v. Irby, 895 So. 2d 282
(Ala. Civ. App. 2004), Fort James expressly argued that it
was entitled to a credit pursuant to § 25-5-57(c)(1) and (3)
for sickness and accident benefits and vacation and holiday
paid to the employee. In denying Fort James the setoffs, the
Court of Civil Appeals stated:
"The effect of the trial court's refusal to
allow Fort James a credit for its payment of
vacation or holiday pay and sick pay to Irby is that
Irby received that compensation in addition to
receiving workers' compensation benefits for the
same time periods. Our supreme court has stated
that the Alabama Legislature's intent in enacting
its 1992 amendments to the Alabama Workers'
Compensation Act was, in part, to prevent a workers'
compensation claimant from receiving a 'double
recovery' such as occurs when the claimant is paid
both workers' compensation benefits and other
benefits 'that a worker might receive as a result of
an injury.' See Ex parte Taylor, 728 So. 2d [635]
at 637 [(Ala. 1998)] (stating that a worker could
not receive both workers' compensation benefits and
payments from a disability plan or a sick-pay plan
paid as a result of an injury for the same time
period).
"However, as to the issues whether an employer
is entitled to a credit for vacation or holiday pay
and sick or accident pay, our supreme court has
quoted with approval a Pennsylvania case that denied
a setoff for those types of pay. See Ex parte
Dunlop Tire Corp., [709 So. 2d 729 (Ala. 1997)],
citing Toborkey v. Workmen's Comp. Appeal Bd. (H.J.
Heinz), 655 A. 2d 636 (Pa. Commw. Ct. 1995). In
explaining the rationale for its denial of that
setoff, the Pennsylvania court stated:
23
2000, through November 29, 2000. Therefore, the disability
7
1061001
"'The Supreme Court noted in Temple
[v. Pennsylvania Dep't of Highways, 445
Pa.
539, 285 A. 2d 137 (1971),] that sick
leave, like vacation pay, was "an incident
or
benefit
provided
under
the
work
agreement and is an entitlement like wages
for services performed." [445 Pa.] at 542,
285 A. 2d at 139, as opposed to payments in
lieu of compensation, which are made in
relief of the claimant's inability to
labor. Therefore, the court
concluded, the
employer was not entitled to credit.'
"Toborkey, 655 A. 2d at 638 (quoted in Ex parte
Dunlop Tire Corp., 706 So. 2d at 734). As our
supreme court noted, the court in Toborkey, supra,
denied the employer a setoff because '"the benefits
in question were wages for services performed,
rather than payments in relief of [the] Claimant's
inability to labor."' Id. (quoting Toborkey, 655 A.
2d at 641).
"In this case, the evidence indicates that the
vacation or holiday pay, and the sick pay, are
benefits to which Irby would have been entitled even
had he not become disabled; they did not constitute
benefits to which Irby became entitled because of
his disability. Therefore, given our supreme
court's
reliance
on
Toborkey,
supra,
as
a
'well-reasoned resolution of some of the questions
involved
in
such
a
setoff
against
workers'
compensation benefits,' we conclude that, under that
authority, Fort James was not entitled to a setoff
for the benefits it paid Irby for sick pay or for
vacation or holiday pay. See Ex parte Dunlop Tire
Corp., 706 So. 2d at 734."
895 So. 2d 282, 292-93 (Ala. Civ. App. 2004). This Court
granted the petition for the writ of certiorari in Irby to
determine whether § 25-5-57(c)(1), Ala. Code 1975, allowed
Fort James to set off sickness and accident benefits paid to
Irby. This Court distinguished "sick pay" from "sick leave,"
stating that "sick leave" was an "'entitlement like wages for
24
1061001
services performed,'" whereas "sick pay" was "'not in the
nature of wages but, rather, [as] payment[] provided in lieu
of compensation, based on the claimant's inability to work.'"
Ex parte Fort James Operating Co. 895 So. 2d 294, 297 (Ala.
2004). Fort James argued that its provision of sickness-and-
accident
benefits
constituted
"sick
pay"
and
not
"sick
leave."
Irby did not challenge Fort James's characterization of the
benefits; rather, it argued that Fort James did not produce
any evidence indicating that it had paid for the sickness-and-
accident benefits. Section 25-5-57(c)(1) provides that an
"employer may reduce ... the amount of benefits paid pursuant
to a disability plan, retirement plan, or other plan providing
for sick pay by the amount of compensation paid, if and only
if the employer provided the benefits or paid for the plan
...." This Court reversed the denial of the setoff, concluding
that Fort James was entitled to the setoff because the
sickness-and-accident benefits were funded by Fort James. Ex
parte Fort James, supra. Although this Court reversed the
Court of Civil Appeals' decision in regard to the sickness-
and-accident benefits, the issue of setoff for the vacation
and holiday pay was not addressed by this Court in Ex parte
Fort James. Accordingly, the current state of the law does
not entitle Fort James a setoff for vacation and holiday pay,
thus the use of the 35-week wage credit as opposed to a 36-
week wage credit.
25
benefits owed Stephens are figured on a wage credit of 35
weeks to Fort James rather than 48 weeks. A weekly benefit of
$220 for 265 weeks (300 weeks less the 35-week credit) with
a credit of $5,688 to Fort James for temporary-total-
disability benefits paid to Stephens results in $52,612 in
benefits that Stephens is actually entitled to in accordance
with the provisions of the Workers' Compensation Act ($220 x
265 - $5,688 = $52,612). Although the total amount of
compensation contained in Fort James's written offer differed
1061001
26
only slightly from the benefits Stephens is actually entitled
to receive under the Workers' Compensation Act, the amounts
nevertheless differed and thus cannot be said to be "in
accordance with the provisions" of the Act. § 25-5-89, Ala.
Code 1975. Therefore, we cannot say that the trial court
exceeded its discretion in awarding costs to Stephens.
Stephens argues in his application for a rehearing that
this Court misapprehended the setoff provision found in § 25-
5-57(c)(3), Ala. Code 1975, which provides:
"(3) If an employer continues the salary of an
injured employee during the benefit period or pays
similar compensation during the benefit period, the
employer shall be allowed a setoff in weeks against
the compensation owed under this article. For the
purposes
of
this
section,
voluntary
contributions
to
a Section 125-cafeteria plan for a disability or
sick pay program shall not be considered as being
provided by the employer."
Stephens contends that the "salary" discussed in § 25-5-
57(c)(3) refers to a "sympathy" salary paid to an injured
employee who is not working and, therefore, not earning his
salary but is being paid because the employer anticipates
workers' compensation liability and does the right thing by
continuing to pay the employee. Stephens cites the
following:
"'If a man is giving a dollar's worth of labor for
every dollar he is paid, the intention of the
employer cannot be said to be that of supplying a
1061001
We note that the passage Stephens cites can now be found,
8
somewhat edited, in 4 Arthur Larson & Lex K. Larson, Workers'
Compensation Law § 82.02[3] (2007).
27
substitute for workmen's compensation; it is simply
to purchase these services from this man on the same
terms as from any other man. Therefore, credit is
usually disallowed when it can be shown that the
claimant earned the wages he was paid during the
period in question.'"
Stephens's rehearing brief at 5 (quoting 2 Arthur Larson,
Workmen's Compensation Law § 57.42). Stephens states that
8
he returned to work and earned his salary and that he was not
paid a "sympathy" salary. Thus, he argues that Fort James
was not entitled to a setoff pursuant to § 25-5-57(c)(3).
Fort James first raised the issue of setoff in its
postjudgment motion. Stephens offered nothing in response to
the issue. Subsequently, Fort James renewed its postjudgment
motion and requested that the matter be set for a hearing.
Again, Stephens offered nothing in response to the setoff
issue. It appears from the record that Fort James's
postjudgment motion was set for a hearing on March 16, 2006,
but was denied by operation of law on March 8, 2006. Fort
James raised the issue of setoff in its appellate brief and
fully argued the matter before this Court. Stephens failed
to address or to refute Fort James's argument as to setoff,
except to say that the issue "should already have been
1061001
28
resolved" by the resolution of the issue regarding the date
Stephens reached MMI.
Stephens has raised for the first
time on
application for
rehearing his argument that this Court misapprehended the
setoff provision in § 25-5-57(c)(3), Ala. Code 1975, by
granting Fort James a setoff for wages Stephens earned
through actual labor, not by way of a "sympathy" salary paid
by Fort James because of Stephens's injury and inability to
work. "'The well-settled rule of this Court precludes
consideration of arguments made for the first time on
rehearing.'" Riscorp, Inc. v. Norman, 915 So. 2d 1142, 1155
(Ala. 2005)(opinion on application for rehearing) (quoting
Water Works & Sewer Bd. of Selma v. Randolph, 833 So. 2d 604,
608 (Ala. 2002)). Accordingly, because Stephens attempts to
raise this particular argument for the first time in his
application for rehearing, we cannot consider it. Because
this is an important issue in the area of workers'
compensation law that does not appear to have been
definitively addressed by this Court, we will await a
proceeding in which this issue is both squarely before this
Court for adjudication and adequately briefed.
1061001
29
Conclusion
We affirm the trial court's judgment to the extent it
found March 23, 2000, to be the date of MMI and taxed costs
against Fort James. We reverse the judgment to the extent it
failed to allow Fort James a wage credit for regular wages
paid to Stephens for the period of March 23, 2000, through
November 29, 2000.
APPLICATION OVERRULED; OPINION OF NOVEMBER 30, 2007,
WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN
PART; AND REMANDED WITH DIRECTIONS.
Cobb, C.J., and Lyons, Woodall, Stuart, and Smith, JJ.,
concur.
Parker, J., concurs in part and dissents in part.
See and Murdock, JJ., concur to overrule the application
for rehearing and otherwise dissent.
1061001
30
PARKER, Justice (concurring in part and dissenting in part).
I concur in the main opinion except as to that part
affirming the trial court's taxation of costs against Fort
James Operating Company, Inc., the employer. I respectfully
dissent from that part. I view the offer made by Fort James
as
containing
terms
in
accordance
with
the
Workers'
Compensation Act, in which case "no costs shall be awarded or
taxed against [the] employer." § 25-5-89, Ala. Code 1975.
1061001
31
MURDOCK, Justice (concurring to overrule the application for
rehearing and otherwise dissenting).
I concur in overruling William J. Stephens's application
for rehearing. As to the majority opinion, however, I dissent
for the reasons hereinafter stated.
The testimony by William J. Stephens and the medical
evidence indicates that there was no change in Stephens's neck
condition from June 7, 1999, to March 23, 2000. The fact that
Stephens's condition "persisted" at the same level at which it
existed on the earlier date is inconsistent with the notion
that it was improving to the point of finally reaching
"maximum medical improvement" ("MMI") on the latter date.
Dr. Nichols's notes do not state that Stephens reached
MMI on March 23, 2000. Dr. Nichols, who did not treat
Stephens for his neck problem between June 1999 and
March 2000, simply explained in his March 23, 2000, notes that
he had prescribed an anti-inflammatory drug for Stephens two
weeks earlier on March 8 and that "[Stephens] is at MMI with
regard to his cervical spine." (Emphasis added.) In the
context of the other undisputed evidence of Stephens's neck
problem simply "persisting" without change from June 7, 1999,
to March 23, 2000, I cannot consider Dr. Nichols's bare
statement that Stephens was at MMI when Dr. Nichols saw him in
1061001
32
March as substantial evidence that Stephens did not reach MMI
until March.
I recognize that the anti-inflammatory medication
prescribed for Stephens by Dr. Nichols during his March 8
visit did provide Stephens with some relief. As Professor
Larson explains, however, the proper focus is on the
underlying condition, which did not change for this employee
between June 7, 1999, and March 23, 2000:
"The issue [of when MMI has been reached] may be
purely a medical one. Thus, there may be medical
evidence that the period of recuperation is not yet
over, that further healing and strengthening may be
anticipated, and that it is still too early to
appraise
claimant's
permanent
disability.
Conversely, there may be medical testimony that the
claimant has recovered as much as he or she ever
will,
and
that
any
lingering
disability
is
permanent. The fact that some treatment is still
necessary, such as physical therapy or drugs, does
not necessarily rule out a finding that the
condition has become stabilized, if the underlying
condition causing the disability has become stable
and if nothing further in the way of treatment will
improve that condition."
4 Arthur Larson & Lex K. Larson, Larson's Workers'
Compensation
Law
§ 80.03[3]
(2007)
(footnotes
omitted).
Judge
Moore, in his treatise on Alabama workers' compensation law,
states: "[T]he mere fact that the employee may receive some
palliative benefit from further medical attention that is not
designed to reduce the physical disability does not prevent a
1061001
33
court from finding that the employee has reached maximum
medical improvement." 1 Terry A. Moore, Alabama Workers'
Compensation § 13:6 (1998) (footnote omitted). See also
G.UB.MK. Constructors v. Traffanstedt, 726 So. 2d 704, 709
(Ala. Civ. App. 1998) (the date of MMI is "the date on which
the claimant has reached such a plateau that there is no
further medical care or treatment that could be reasonably
anticipated to lessen the claimant's disability").
Based on the foregoing, I respectfully dissent. I would
reverse the trial court's judgment to the extent that it found
March 23, 2000, to be the date of MMI for Stephens's neck
injury. I would remand the cause for the trial court to enter
a judgment setting MMI at June 7, 1999, and applying an
appropriate wage credit to the permanent-partial-disability
benefits due Stephens in relation to the wages paid Stephens
by Fort James from and after that date.
See, J., concurs. | May 30, 2008 |
17899905-3f95-4d50-8834-ec157140835c | Ex parte Matthew Kennedy, Charles Ward and Marty Griffin. PETITION FOR WRIT OF MANDAMUS: CIVIL (In re: Burl Thompson, executor of the estate of Joseph James "Pete" Thompson, deceased v. Matthew Kennedy, Charles Ward and Marty Griffin) | N/A | 1061377 | Alabama | Alabama Supreme Court | REL: 04/25/2008
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, 2007-2008
____________________
1061377
____________________
Ex parte Matthew Kennedy, Charles Ward, and Marty Griffin
PETITION FOR WRIT OF MANDAMUS
(In re: Burl Thompson, executor of the estate of Joseph
James "Pete" Thompson, deceased
v.
Matthew Kennedy, Charles Ward, and Marty Griffin)
(Escambia Circuit Court, CV-04-192)
MURDOCK, Justice.
Matthew Kennedy, Charles Ward, and Marty Griffin, law-
enforcement officers, petition this Court for a writ of
1061377
2
mandamus directing the Escambia Circuit Court to enter a
summary judgment in their favor on a wrongful-death claim
pursued by Burl Thompson, as the executor of the estate of
Joseph James "Pete" Thompson ("Pete Thompson"), based on their
assertion of the defenses of State-agent and statutory
immunity. For the reasons discussed herein, we grant the
petition and issue the writ.
I. Factual and Procedural Background
On the afternoon of September 30, 2002, 83-year-old Pete
Thompson, who apparently was suffering from some form of
mental illness and had become angry that automobiles were
speeding on the road next to his house, fired a shotgun at a
passing automobile, striking the windshield. His brother,
Burl Thompson, who lived with him and who was cutting the
grass at the time, tried to retrieve the gun from Pete. Pete
refused to turn the gun over to Burl and entered the house.
Shortly thereafter, law-enforcement officers with the
Escambia County Sheriff's Office came to the Thompsons'
property. They remained about 200 yards from the house. The
officers contacted Burl by telephone and asked him to try to
convince Pete to speak with them. When Pete refused, they
1061377
A tactical unit is specially trained in the use of
1
firearms and tactical techniques.
Since the time of the incident that is the basis of this
2
action, Griffin has become a lieutenant with the Department of
Public Safety.
3
asked Burl to come outside and talk to them, which Burl did.
He stayed with the officers until around 9:00 p.m., at which
time he left the scene.
After the officers from the Escambia County Sheriff's
Office were unable to convince Pete to leave his house, they
requested assistance from a tactical unit of the Alabama
Department of Public Safety. They also obtained a felony
1
warrant for Pete's arrest.
Upon receiving notification that the Escambia County
Sheriff's Office had requested the assistance of a tactical
unit, Sgt. Marty Griffin, a state trooper and the team leader
2
of the tactical unit, notified the other members of the
tactical unit, and the unit proceeded to the scene of the
incident. Among those responding were Lt. Charles Ward, who
was Sgt. Griffin's superior officer, and State Trooper Matthew
Kennedy, who was deployed at the scene as a marksman and
observer.
1061377
4
Two members of the Alabama Bureau of Investigation,
Cpl. Doug Darby and Cpl. Stan Stabler, both state troopers,
came to the scene to serve as crisis negotiators. Cpl. Darby
and Cpl. Stabler attempted to contact Pete by telephone
several times. Pete, who was watching television in his
living room with his shotgun at his feet, did not answer their
telephone calls and did not in any way communicate with them.
At 9:00 p.m., the decision was made to cut the antenna cable
to the television in the hope that if the television was
disabled Pete would answer his telephone and talk with the
negotiators. However, after one of the officers cut the
antenna cable, Pete, instead of talking with the negotiators,
turned off the television and turned out the light in the
living room.
Around midnight, the officers determined that Pete might
have gone to bed. They decided to enter the house from the
front of the house in an attempt to apprehend him. The
decision was made that if Pete was not in bed as expected, the
team entering the house would exit the house so as to prevent
a confrontation. The team entered the house through the front
as planned, and, upon seeing that Pete's bed was empty, left
1061377
In an affidavit, Lt. Ward explained why the officers
3
attempted to end the situation before daybreak: "For the
safety of team members we were attempting to resolve the
situation prior to sunrise. The house was in the open, near
a well-traveled road and when the sun came up we would lose
the cover of darkness and the team's positions would be
exposed."
5
the house. As the team left the house, Pete fired on the
officers. No one was injured.
Following the unsuccessful attempt to apprehend Pete,
Cpl. Stabler, Cpl. Darby, and Sgt. Griffin moved the tactical
unit's van to the front of Pete's house. They directed the
blue lights and headlights toward the house in an attempt to
ensure that Pete knew it was law-enforcement officers who were
attempting to talk to him. Cpl. Stabler and Cpl. Darby used
the public-address system in the van to try to communicate
with Pete. He did not respond.
At approximately 3:30 a.m. on the morning of October 1,
2002, the officers fired two rounds of tear gas into the house
in
an
attempt
to
coerce
Pete
to
leave
the
house.3
Cpl. Stabler and Cpl. Darby continued to attempt to
communicate with Pete, to no avail. Following the initial
introduction of tear gas into the house, the officers fired
three more rounds of tear gas into the house.
1061377
6
Shortly after the officers fired the last round of tear
gas into the house, Pete walked out of the house and onto the
front porch. As he was leaving the house, he opened fire on
the officers. He reloaded his shotgun and continued firing on
the officers, ignoring repeated requests that he drop his gun.
Several of the officers took cover. In an affidavit, Trooper
Kennedy described what transpired during Pete's attack on the
officers:
"There was a lot of noise from the shotgun blasts
and shouting of the officers who were under attack.
Over all of the noise, I heard Sergeant Griffin say
'if you have a shot, take it.' I had never shot
anyone before but I knew one of us was likely to be
severely hurt or killed unless something was done.
I did the only thing I could at the time to protect
us. I made the decision to take the shot. I fired
the shot and hit [Pete]. That was the only shot
fired by the officers."
Pete died from the gunshot wound. One of the officers on the
scene received a minor wound to the ankle as a result of
Pete's firing on the officers.
On July 8, 2004, Burl Thompson, as executor of Pete's
estate, sued Trooper Kennedy and numerous fictitiously named
defendants, alleging wrongful death and the tort of outrage.
In his answer, Trooper Kennedy denied the material allegations
1061377
In his answer, Trooper Kennedy asserted the defense of
4
"common
law
discretionary
function
immunity."
"Discretionary-function immunity is now referred to as
State-agent immunity." Wilson v. Manning, 880 So. 2d 1101,
1108 (Ala. 2003).
7
of the complaint and asserted, among other defenses, the
affirmative defenses of State-agent and statutory immunity.
4
In December 2005, Burl moved to amend his complaint to
substitute Lt. Ward and Sgt. Griffin for two of the
fictitiously named defendants. The fictitiously named
defendants for whom they were substituted were alleged, in the
original complaint, to have been "members of the [tactical
unit] who acted maliciously, willfully, and in bad faith by
failing to follow the department's ... Standard Operating
Procedure" and to have been "department heads and supervisors
who willfully, maliciously and in bad faith failed to train
and supervise properly the members of the [tactical unit]."
The complaint, as amended, asserted the same two counts
against Lt. Ward and Sgt. Griffin, wrongful death and the tort
of outrage, as were asserted in the original complaint against
Trooper Kennedy. In their answer to the amended complaint,
Lt. Ward and Sgt. Griffin, like Trooper Kennedy, denied the
1061377
8
material allegations of the complaint and asserted the
affirmative defenses of State-agent and statutory immunity.
On November 2, 2006, Trooper Kennedy, Lt. Ward, and
Sgt. Griffin filed a motion for a summary judgment. They
argued that they were immune from suit under the doctrine of
State-agent immunity and under Ala. Code 1975, § 6-5-338(a),
which provides that, with certain exceptions, "[e]very peace
officer ... shall at all times be deemed to be officers of
this state, and as such shall have immunity from tort
liability arising out of his or her conduct in performance of
any discretionary function within the line and scope of his or
her law enforcement duties." Burl responded by arguing that
immunity was not available to the defendants because, he
alleged, they had failed to follow established guidelines in
attempting to effect Pete's arrest.
On May 18, 2007, the trial court granted the summary-
judgment motion as to the tort-of-outrage claim, but it denied
the motion as to the wrongful-death claim.
On June 26, 2007, Trooper Kennedy, Lt. Ward, and
Sgt. Griffin filed a petition for a writ of mandamus with this
Court, seeking an order directing the trial court to grant
1061377
9
that portion of their summary-judgment motion directed to the
wrongful-death claim.
II. Standard of Review
We apply the following standard of review to mandamus
proceedings challenging the denial of a motion for a summary
judgment based on a claim of immunity:
"'While the general rule is that the denial of
a motion for summary judgment is not reviewable, ...
the denial of a motion for summary judgment grounded
on a claim of immunity is reviewable by petition for
writ of mandamus.' Ex parte Rizk, 791 So. 2d 911,
912 (Ala. 2000). A writ of mandamus is an
extraordinary remedy available only when there is:
'(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)."
Ex parte Nall, 879 So. 2d 541, 543 (Ala. 2003).
III. Analysis
Trooper Kennedy, Lt. Ward, and Sgt. Griffin contend that
the trial court erred when it denied their motion for a
summary judgment as to the wrongful-death claim because, they
argue, they are entitled to immunity in this case based on
State-agent immunity and the immunity provided by Ala. Code
1975, § 6-5-338, for law-enforcement officers. Burl contends
1061377
10
in response that the officers are not entitled to immunity
from the wrongful-death claim because, he says, several of
their actions during the evening and morning of the incident
resulting in Pete's death violated what he says are binding
rules and regulations set forth in a training manual used by
the Department of Public Safety at its academy for law-
enforcement officers. For the reasons stated herein, we agree
with the officers that they are immune from Pete's estate's
wrongful-death claim, and we issue the writ.
"State-agent immunity protects state employees, as agents
of the State, in the exercise of their judgment in executing
their work responsibilities." Ex parte Hayles, 852 So. 2d
117, 122 (Ala. 2002). In Ex parte Cranman, 792 So. 2d 392
(Ala. 2000), a plurality of this Court articulated the
following test for State-agent immunity:
"A State agent shall be immune from civil
liability in his or her personal capacity when the
conduct made the basis of the claim against the
agent is based upon the agent's
"(1) formulating
plans,
policies,
or
designs;
or
"(2) exercising his or her judgment in the
administration
of
a
department
or
agency
of
government, including, but not limited to, examples
such as:
1061377
11
"(a) making administrative adjudications;
"(b) allocating resources;
"(c) negotiating contracts;
"(d)
hiring,
firing,
transferring,
assigning, or supervising personnel; or
"(3) discharging duties imposed on a department
or agency by statute, rule, or regulation, insofar
as the statute, rule, or regulation prescribes the
manner for performing the duties and the State agent
performs the duties in that manner; or
"(4) exercising judgment in the enforcement of
the criminal laws of the State, including, but not
limited to, law-enforcement officers' arresting or
attempting to arrest persons; or
"(5) exercising judgment in the discharge of
duties imposed by statute, rule, or regulation in
releasing prisoners, counseling or releasing persons
of unsound mind, or educating students.
"Notwithstanding
anything
to
the
contrary
in
the
foregoing statement of the rule, a State agent shall
not be immune from civil liability in his or her
personal capacity
"(1) when the Constitution or laws of the United
States, or the Constitution of this State, or laws,
rules, or regulations of this State enacted or
promulgated for the purpose of regulating the
activities
of
a
governmental
agency
require
otherwise; or
"(2) when the State agent acts willfully,
maliciously, fraudulently, in bad faith, beyond his
or her authority, or under a mistaken interpretation
of the law."
1061377
12
Cranman, 792 So. 2d at 405 (emphasis on "shall" and "shall
not" original; other emphasis added). The Court adopted the
Cranman test for State-agent immunity in Ex parte Butts, 775
So. 2d 173, 177-78 (Ala. 2000).
As noted, the officers also rely on § 6-5-338(a), Ala.
Code 1975, which provides immunity for law-enforcement
officers:
"Every peace officer, except constables, who is
employed or appointed pursuant to the Constitution
or statutes of this state, whether appointed or
employed as such peace officer by the state or a
county or municipality thereof, or by an agency or
institution,
corporate
or
otherwise,
created
pursuant to the Constitution or laws of this state
and authorized by the Constitution or laws to
appoint or employ police officers or other peace
officers, and whose duties prescribed by law, or by
the lawful terms of their employment or appointment,
include the enforcement of, or the investigation and
reporting of violations of, the criminal laws of
this state, and who is empowered by the laws of this
state to execute warrants, to arrest and to take
into custody persons who violate, or who are
lawfully charged by warrant, indictment, or other
lawful process, with violations of, the criminal
laws of this state, shall at all times be deemed to
be officers of this state, and as such shall have
immunity from tort liability arising out of his or
her conduct in performance of any discretionary
function within the line and scope of his or her law
enforcement duties."
Although § 6-5-338(a) speaks in terms of immunity for
"discretionary functions," this Court, in Blackwood v. City of
1061377
13
Hanceville, 936 So. 2d 495 (Ala. 2006), held that the test for
determining whether an officer is entitled to immunity under
§ 6-5-338(a) is the one articulated in Cranman relating to
State officers. In Blackwood, we stated:
"Before Cranman, the immunity accorded a peace
officer under § 6-5-338(a) was analyzed in terms of
whether at the time of the act complained of the
officer was engaged in the performance of a
discretionary act.
"....
"However, '[w]hether a qualified peace officer
is due § 6-5-338(a) immunity is now judged by the
restatement of State-agent immunity articulated by
Ex parte Cranman, 792 So. 2d 392 (Ala. 2000)....'
Hollis [v. City of Brighton] 885 So. 2d [135,] 143
[(Ala. 2004)].
"'By
enacting
[§
6-5-338],
the
Legislature intended to afford municipal
law-enforcement
officials
the
immunity
enjoyed by their state counterparts. Sheth
v. Webster, 145 F.3d 1231, 1237 (11th Cir.
1998). Indeed, "[t]his statute, by its
terms, extends state-agent immunity to
peace officers performing discretionary
functions within the line and scope of
their law-enforcement duties." Moore v.
Crocker, 852 So. 2d 89, 90 (Ala. 2002)
(emphasis added).
"'In Ex parte Cranman, supra, this
Court "restated the law of state-agent
immunity in Alabama." Moore, 852 So. 2d at
90. Since Cranman, we analyze immunity
issues in terms of "State-agent" immunity,
rather
than
"under
the
dichotomy
of
1061377
14
ministerial
versus
discretionary
functions." Ex parte Hudson, 866 So. 2d
1115, 1117 (Ala. 2003). See also Giambrone
v. Douglas, 874 So. 2d 1046, 1052 (Ala.
2003); Ex parte Turner, 840 So. 2d 132, 134
n.1 (Ala. 2002). Thus, we will address the
applicability of peace-officer immunity
under the principles set forth in Cranman.
See Moore, supra; Ex parte Duvall, 782 So.
2d 244 (Ala. 2000).'
"Howard [v. City of Atmore, 887 So. 2d 201,] 203
[(Ala. 2003)]."
Blackwood, 936 So. 2d at 504.
Despite this Court's holding in Blackwood, there
remained the fact that the scope of immunity for law-
enforcement officers as articulated in § 6-5-338(a) was
broader than category (4) of the Cranman test seemed to allow.
In Hollis v. City of Brighton, 950 So. 2d 300, 309 (Ala.
2006), this Court eliminated that apparent difference by
expanding the scope of immunity as stated in category (4) of
the Cranman test:
"Given the divergence between the scope of the
immunity
granted by § 6-5-338(a)–-'conduct in
performance of any discretionary function within the
line and scope of his or her law enforcement
duties'--and summarized in category (4) of the
Cranman restatement–-'exercising judgment in the
enforcement of the criminal laws of the State
....'--we conclude that immune category 4 of the
Cranman restatement should be expanded to restate
1061377
15
the
law
of
immunity
in
this
area
so
as
to
reflect
§
6-5-338(a).
"Because the peace officers' immunity statute
does not limit the availability of immunity to
'enforcement of the criminal laws,' we today modify
category (4) of Cranman to read as follows:
"'A State agent shall be immune from
civil liability in his or her personal
capacity when the conduct made the basis of
the claim against the agent is based upon
the agent's
"'....
"'(4)
exercising
judgment
in
the
enforcement of the criminal laws of the
State, including, but not limited to,
law-enforcement
officers'
arresting
or
attempting to arrest persons, or serving as
peace
officers
under
circumstances
entitling
such
officers
to
immunity
pursuant to § 6-5-338(a), Ala. Code 1975.'
"(Additional language emphasized.)"
Hollis, 950 So. 2d at 309.
"This Court has established a 'burden-shifting' process
when a party raises the defense of State-agent immunity."
Ex parte Estate of Reynolds, 946 So. 2d 450, 452 (Ala. 2006).
A State agent asserting State-agent immunity "bears the burden
of demonstrating that the plaintiff's claims arise from a
function that would entitle the State agent to immunity." 946
So. 2d at 452. Should the State agent make such a showing,
1061377
16
the burden then shifts to the plaintiff to show that one of
the two categories of exceptions to State-agent immunity
recognized in Cranman is applicable. The exception being
argued here is that "the State agent acted willfully,
maliciously, fraudulently, in bad faith, or beyond his or her
authority." 946 So. 2d at 452. One of the ways in which a
plaintiff can show that a State agent acted beyond his or her
authority is by proffering evidence that the State agent
failed "'to discharge duties pursuant to detailed rules or
regulations, such as those stated on a checklist.'" Giambrone
v. Douglas, 874 So. 2d 1046, 1052 (Ala. 2003) (quoting
Ex parte Butts, 775 So. 2d at 178).
In the present case, we have no difficulty concluding
that Trooper Kennedy, Lt. Ward, and Sgt. Griffin carried their
burden of demonstrating that, at the times relevant to this
matter, they were engaged in law-enforcement functions for
which statutory and State-agent immunity would be available,
barring the applicability of one of the two categories of
exceptions to immunity recognized in Cranman. The portions of
the trial court proceedings the parties have placed before
this Court on this mandamus petition demonstrate: (1) that the
1061377
Indeed, before neither the trial court nor this Court did
5
Burl contend that the officers had not carried the initial
burden of demonstrating that they were engaged in activities
for which, in the absence of an applicable exception, immunity
would be available.
In his brief, Burl also states that "the actions of the
6
defendants [were] willful and malicious." Burl fails to
explain how this was so or to elaborate in any way on this
legal conclusion. Our own review of those portions of the
17
officers were present at the scene to arrest Pete pursuant to
a warrant; (2) that they were attempting, generally, to
enforce the criminal laws of the State; and (3) that the
actions they took during their standoff with Pete were within
the line and scope of their law-enforcement duties, either, in
the case of Lt. Ward and Sgt. Griffin, as supervisors of the
tactical unit, or, in the case of Trooper Kennedy, as a member
of the tactical unit. Given this showing, to defeat the
5
officers' summary-judgment motion as to the wrongful-death
claim, Burl had the burden of demonstrating that an exception
to State-agent immunity applied. See Estate of Reynolds, 946
So. 2d at 452.
Burl contended to the trial court, and contends here,
that the officers acted beyond their authority with regard to
the incident in question because, he alleges, in handling the
situation, they violated binding rules and regulations. The
6
1061377
trial court's proceedings before us fails to support this bald
assertion.
18
rules and regulations they violated, he argues, are set forth
in a training manual for tactical units used in the Department
of Public Safety's academy for law-enforcement officers; the
manual is known as the "Nighthawk manual."
One passage of the training manual states: "An effective
team requires a minimum of three negotiators." This "rule"
was violated, Burl argues, because only two negotiators,
Cpl. Darby and Cpl. Stabler, were on the scene during the
standoff. Another passage states: "Non-hostage situations are
often made worse by a confrontative police profile that
threatens and agitates the subject. This approach causes a
defensive response that inhibits building trust and rapport,
and may escalate the conflict." Burl argues that the officers
violated this "rule" when, thinking Pete was asleep, they
attempted to enter the house and later when they fired tear
gas into the house. A final passage in the training manual to
which Burl refers states: "Non-threatening negotiations can be
undermined by a simultaneous demonstration of force." He
argues that "[t]hat is exactly what happened in this case
1061377
19
while the negotiators were trying to end the matter
peacefully."
Burl relies on the deposition testimony of State Trooper
Capt.
Herman
Wright,
the
designated
deponent
under
Rule 30(b)(6), Ala. R. Civ. P., for the Department of Public
Safety, to support his argument that the above-quoted passages
from the Nighthawk manual constitute binding rules and
regulations, the violation of which by an officer results in
his or her loss of immunity. Specifically, he recites the
following passages from Capt. Wright's deposition:
"Q. Tell me what the Nighthawk manual is.
"A. That's a manual that they use for their basic
training trying to give them guidance or guidelines
on what to do about certain situations or how it
would be -- how it would be handled.
"....
"Q. Captain, how many negotiators are recommended
for each operation? In what minimum number?
Operation being a barricaded situation like the one
we have in this case.
"A. You're testing my memory. I -- I went over the
policy. I believe it's three.
"....
"Q. -- they should not aggravate the subject while
they're being -- trying -- the negotiations are
going on. And if the -- Well, if the Nighthawk
1061377
20
training manual said that, it'd be correct, wouldn't
it?
"A. That would be their procedure if the -- if the
manual said that.
"Q. If the manual said that, that's the way it
should be done?
"A. That would be the guidelines, yes, sir."
(Emphasis added.)
Trooper Kennedy, Lt. Ward, and Sgt. Griffin argue that
the training manual does not constitute binding rules and
regulations. Rather, they point to two policy orders of the
Department of Public Safety as providing the appropriate rules
and regulations governing the incident in this case. The
first,
Policy
Order
No.
411,
has
as
its
subject
"Crisis/Hostage Situations" and as its purpose "[t]o establish
guidelines for the Department of Public Safety response to
incidents involving hostages, barricaded suspects and other
crisis situations." The other, Policy Order No. 201, has as
its subject "Use of Force," and as its purpose "[t]o provide
sworn officers of the department with guidelines on the use of
force and establish use of force reporting procedures." These
policy orders, and not the training manual, argue Trooper
Kennedy, Lt. Ward, and Sgt. Griffin, provided the rules and
1061377
21
regulations they were to follow during the incident resulting
in this litigation.
In Giambrone v. Douglas, supra, and Howard v. City of
Atmore, 887 So. 2d 201 (Ala. 2003), this Court discussed the
violation-of-rules basis for denying a State agent immunity.
We described those cases in Gowens v. Tys., 948 So. 2d 513,
524-26 (Ala. 2006):
"'The complaint in Giambrone [v. Douglas,
874 So. 2d 1046 (Ala. 2003),] sought
compensation for injuries suffered by
15-year-old Jake Giambrone, a member of the
wrestling team, in an impromptu wrestling
match with Michael Douglas, the head
wrestling coach for Auburn High School.
874 So. 2d at 1049. Douglas outweighed
Giambrone,
who
was
a
freshman,
by
approximately 70 pounds. Id. The trial
court entered a summary judgment in favor
of Douglas on the ground of State-agent
immunity.
"'In this Court, the appellant argued
that the summary judgment was improper,
because there was evidence indicating that
"[Douglas]
violated
the
competition
guidelines as promulgated by the National
Federation of Wrestling ('NFW'); and ...
engaged in 'inequitable competition' with
Jake in violation of the code of conduct
contained in the Alabama High School
Athletic Directors and Coaches Association
Directories ('the Athletic Directories')."
874 So. 2d at 1051 (emphasis added). This
Court
agreed
with
that
argument
and
1061377
22
reversed the summary judgment. 874 So. 2d
at 1057.
"'In doing so, the Court noted that,
as a general principle, "Douglas was
permitted to exercise broad judgment in the
education of his students." 874 So. 2d at
1053.
It
explained,
however,
that
Douglas's
supervisor,
the
athletic
director, had "instructed the coaches ...
to follow the guidelines in the Athletic
Directories," and that he had "provided
Douglas with a book containing rules
promulgated by the NFW in order to make
sure that Douglas knew the rules for
conducting wrestling matches." 874 So. 2d
at 1054. The Court stated:
"'"Although
[the
athletic
director] was not directed by the
[Auburn City Board of Education]
to impose on the coaches at
Auburn High School the guidelines
and rules of the ... NFW and the
Athletic
Directories,
it
was
within
the
exercise
of
his
judgment to 'insist' that the
coaches
comply
with
those
guidelines and rules.
"'"Therefore,
Douglas's
'broad authority' to exercise
judgment in the safe conduct of
his wrestling team practices was
limited by the guidelines and
rules furnished and imposed by
[the athletic director]."
"'874 So. 2d at 1054. The Court concluded:
"'"The guidelines and rules
removed Douglas's judgment in
1061377
23
determining whether he should
participate in a 'full speed'
challenge match with a student
who was less experienced, much
younger,
and
smaller
than
Douglas.
Moreover,
the
guidelines and rules restricted
the
type
of
moves
that
are
permissible
in
the
sport
of
wrestling. Because a trier of
fact could determine that Douglas
performed an illegal move during
an 'inequitable' challenge match,
thereby failing to discharge his
duties
pursuant
to
'detailed
rules or regulations,' we cannot
determine at this stage in the
proceedings
that
Douglas
is
entitled to State-agent immunity.
Douglas did not meet his burden
of establishing that his actions
and decisions involved functions
that entitled him to immunity."'
"Howard [v. City of Atmore,] 887 So. 2d 201,] 208
[(Ala. 2003)] (emphasis added in Howard).
"More recently, in Howard we considered the
claims
of
Gladys
Howard
against
police
officer/dispatcher Frank Bryars for the death of
Howard's sister, Marilyn Bowens, who committed
suicide while she was incarcerated in the City of
Atmore jail. 887 So. 2d at 202. We agreed with
Howard's theory of the case that Officer Bryars was
not entitled to State-agent immunity, 'because ...
he failed to follow mandatory rules and procedures
prescribed
by
the
...
police
department
for
observing inmates,' which were set forth in the
'"Standard
Operating
Procedures
Manual"'
('the
SOP'). 887 So. 2d at 206.
1061377
24
"The dispositive provision of the SOP stated, in
pertinent part: '"The dispatcher on duty shall make
periodic jail checks on inmates at least twice an
hour and more often if needed or circumstances call
for additional checks. The monitor camera will
constantly
be
operating
and
observed
by
dispatchers."' 887 So. 2d at 207 (emphasis added in
Howard). There was testimony that Officer Bryars
had 'made a "jail check" on all the inmates when he
arrived at 3:00 p.m. to begin his shift,' and 'that
he saw Bowens on the "monitor camera" [only] once
between 3:00 p.m. and 4:08 p.m.,' when she was
discovered 'hanging from the bars' of her cell. 887
So. 2d at 209. Thus, summary judgment for Officer
Bryars was inappropriate, in the face of evidence
indicating that he 'failed to comply with [the SOP],
which require[d him] to make "jail checks" of all
inmates at least twice per hour, and "constantly" to
observe the "monitor camera."' 887 So. 2d at 209
(first emphasis added)."
We agree with Trooper Kennedy, Lt. Ward, and Sgt. Griffin
that Burl failed to carry his burden of demonstrating that
they failed "to discharge duties pursuant to detailed rules or
regulations, such as those stated on a checklist." It is
clear from the materials submitted to us that neither the
Department of Public Safety nor any authorized agent of the
Department adopted the training manual upon which Burl relies
as binding rules and regulations that strictly govern the
tactical unit. Capt. Wright's testimony that the training
manual set forth "guidelines" and "procedures" and that it
indicated what the tactical-unit team members "should do" in
1061377
It may also be noted in regard to the first of the above-
7
quoted training-manual provisions (requiring a minimum of
three negotiators for an "effective" team), that Policy Order
No. 411 states that "[a] negotiation team will ideally consist
of the following personnel: 1. Primary negotiator; 2.
Secondary
negotiator/negotiation
team
leader;
3.
Investigation/intelligence officer."
25
particular circumstances does not mean that the training
manual was adopted as a set of binding rules and regulations
strictly governing the tactical unit. Indeed, it is in the
nature of a training manual to explain to an employee how to
handle situations and to set forth guidelines for how an
employee "should" conduct himself or herself. Further, as
highlighted by the words or passages emphasized in our earlier
quotation of the specific provisions in the training manual
upon which Burl seeks to rely, each of those provisions is
either aspirational in nature or leaves the actor with
discretion as to whether the guidance should be followed in a
given situation. Under these circumstances, we are
7
unwilling to recognize the Nighthawk manual as a set of
"detailed rules and regulations," the violation of which will
cause a State agent to lose his or her immunity from an action
seeking money damages.
1061377
26
IV. Conclusion
Based on the foregoing, we conclude that, with regard to
the wrongful-death claim asserted against them, Trooper
Kennedy, Lt. Ward, and Sgt. Griffin are entitled to State-
agent immunity and to the immunity provided by Ala. Code 1975,
§ 6-5-338(a). As a result, we conclude that the trial court
erred when it denied their motion for a summary judgment as to
that claim. Thus, we issue the writ. The trial court is
directed to set aside that portion of its order denying the
motion for a summary judgment on the wrongful-death claim and
to enter a summary judgment as to that claim.
PETITION GRANTED; WRIT ISSUED.
Lyons, Stuart, Bolin, and Parker, JJ., concur.
Cobb, C.J., recuses herself. | April 25, 2008 |
037349af-6b3b-4724-a0bc-58ed29516f96 | Mary Nell M. DeFriece and Lee M. Durst v. Ernest C. ( 365 ) McCorquodale, Jr. and the estate of Nell M. McCorquodale | N/A | 1061825 | Alabama | Alabama Supreme Court | REL: 04/11/08
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, 2007-2008
____________________
1061825
____________________
Mary Nell M. DeFriece and Lee M. Durst
v.
Ernest C. McCorquodale, Jr., and the estate of Nell M.
McCorquodale
____________________
1070029
____________________
Ernest C. McCorquodale, Jr., and the estate of Nell M.
McCorquodale
v.
Mary Nell M. DeFriece and Lee M. Durst
2
Appeals from Clarke Circuit Court
(CV-04-63)
STUART, Justice.
Mary Nell M. DeFriece and Lee M. Durst appeal from a
summary judgment entered in favor of Ernest C. McCorquodale,
Jr. ("Ernest Jr."), and the estate of Nell M. McCorquodale
("the estate") on the fraud claims DeFriece and Durst asserted
against Ernest Jr. and the estate. Ernest Jr. and the estate
cross-appeal. We affirm.
I.
DeFriece, Durst, and Ernest Jr. are the children of
Ernest C. McCorquodale, Sr. ("Ernest Sr."), and Nell M.
McCorquodale. Ernest Sr. predeceased his wife and children,
dying on December 18, 1992. Before his death, Ernest Sr.
executed a will that devised the family home to Nell and the
rest of his real property, approximately 8,000 acres of
timberland in southwest Alabama, was placed in trusts with
equal one-third shares for the benefit of DeFriece, Durst,
Ernest Jr., and their respective families.
However, following Ernest Sr.'s death, the family learned
that his will had failed to take advantage of the marital-tax
deduction and would, if effectuated, result in a tax liability
1061825 and 1070029
3
of approximately $4 million on Ernest Sr.'s estate, worth an
estimated $8.3 million. Seeking to minimize that tax burden,
the
family
consulted
an
estate-planning
attorney
who
recommended, first, that DeFriece, Durst, Ernest Jr., their
respective children, and Nell disclaim their rights to receive
real property under Ernest Sr.'s will, and, second, that
DeFriece, Durst, Ernest Jr., and their children disclaim their
rights to receive any of the estate's real property by
intestate succession. The result of these disclaimers would
be that Nell would receive outright real property valued at
approximately $7 million, that approximately $1 million of
assets that remained in the estate would pass outright or in
trust for the benefit of the grandchildren, and that the
overall tax liability would be reduced from approximately $4
million to $260,000.
The family ultimately agreed to this plan; however,
DeFriece and Durst allege that they did so only after Nell
told them that she would, either during her life or upon her
death, give the real property she received under the plan to
DeFriece, Durst, and Ernest Jr., in equal shares, and after
Ernest Jr. told them that he would not accept from Nell more
1061825 and 1070029
4
than a one-third share of the real property she received under
the plan. After the disclaimers were submitted to and
approved by the Probate Court of Clarke County, the individual
family members executed the disclaimers and, on September 24,
1993, Nell took title to the real property in Ernest Sr.'s
estate. Approximately one week later, on September 30, 1993,
Nell conveyed to DeFriece, Durst, and Ernest Jr. an undivided
22.25% interest in that real property.
Several years later, DeFriece, Durst, Ernest Jr., and
Nell began discussing a possible division of the property in
which they jointly held an undivided interest, and, on March
24, 1997, they executed a series of partition deeds dividing
the property into four separate parcels, and DeFriece, Durst,
Ernest Jr., and Nell were each deeded a parcel. DeFriece and
Durst again allege that they agreed to the division of the
property only after Nell repeated her representation that she
would later give them each a one-third share of the real
property she held following the division and after Ernest Jr.
again stated that he would not accept from Nell any more than
a one-third share of that property.
1061825 and 1070029
In a number of earlier wills prepared between June 1994
1
and November 1997, Nell had also left the bulk of her real
property to Ernest Jr.
5
On February 11, 2004, Nell died before transferring any
more real property to her children. In her final will, dated
November 12, 1997, Nell left the bulk of her real property to
Ernest Jr. Ernest Jr. petitioned the Probate Court of Clarke
1
County to probate that will on February 27, 2004, and, on
March 23, 2004, DeFriece and Durst filed notice that they were
contesting the will and moved the probate court to transfer
the case to the Clarke Circuit Court.
After the case was transferred to the Clarke Circuit
Court, DeFriece and Durst amended their complaint to add four
fraud claims against Ernest Jr. and the estate. The essence
of those claims was that DeFriece and Durst had agreed to the
family tax-savings plan whereby they would disclaim their
rights to inherit the real property left to them by Ernest
Sr.'s will only after Nell promised that she would later
transfer to them and Ernest Jr. the real property she received
pursuant to that plan in equal one-third shares and after
Ernest Jr. promised them that he would not accept more than a
one-third share of that property. DeFriece and Durst also
1061825 and 1070029
6
claimed that Nell and Ernest Jr. had repeated those promises
to induce them to agree to the division of the property into
four parcels in March 1997.
On February 9, 2007, Ernest Jr. moved the trial court to
enter a summary judgment in his favor in both the will contest
and on the fraud claims asserted by DeFriece and Durst. At a
hearing held on that motion on February 26, 2007, DeFriece and
Durst agreed that a summary judgment was due to be granted in
the will contest, and the trial court subsequently entered the
summary judgment. The trial court also ordered the parties to
file supplemental briefs on the remaining issues. On April 4,
2007, the estate filed its own motion seeking a summary
judgment on the fraud claims that had been asserted against
it. Both that motion and Ernest Jr.'s February 9, 2007,
summary-judgment motion argued that Ernest Jr. and the estate
were entitled to a summary judgment on the fraud claims on the
basis of: 1) the statute of limitations; 2) the Statute of
Frauds; 3) the doctrine of judicial estoppel; and 4) the lack
of substantial evidence indicating that DeFriece and Durst had
relied on the alleged misrepresentations by Ernest Jr. and
Nell.
1061825 and 1070029
7
On August 31, 2007, the trial court issued a final
summary judgment in favor of Ernest Jr. and the estate. That
order stated, in pertinent part:
"With respect to the Estate's motion for summary
judgment, the court finds that, because both of the
plaintiffs received a greater benefit as a result of
the disclaimers than they would have received had
[Ernest Sr.]'s will been probated as written, the
plaintiffs did not sustain any damage for which they
may obtain relief from the Estate. Moreover, the
court finds that the doctrine of judicial estoppel
prevents the plaintiffs from presently disavowing or
avoiding the disclaimers that the plaintiffs filed
and affirmed in the Probate Court of Clarke County.
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 (2001).
"With respect to Ernest [Jr.]'s motion for
summary judgment, the court finds that any alleged
promises made by Ernest [Jr.] were, at best,
illusory and they could not provide a proper basis
for an actionable fraud claim.
"Based upon the foregoing, the court finds that
there is no genuine issue as to any material fact
and the defendants are entitled to a judgment as a
matter of law."
DeFriece and Durst filed their notice of appeal to this Court
on September 21, 2007, and Ernest Jr. and the estate filed
their cross-appeal on September 28, 2007.
1061825 and 1070029
8
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.
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). On appeal, DeFriece and Durst do not challenge
the judgment entered in favor of Ernest Jr. on their claim
contesting Nell's will; rather, they challenge only the
summary judgment entered in favor of Ernest Jr. and the estate
on their fraud claims. Thus, we review those claims to
determine if, when the evidence is viewed in the light most
favorable to DeFriece and Durst, a genuine issue of material
fact exists so as to make a judgment as a matter of law for
Ernest Jr. and the estate on those claims inappropriate.
1061825 and 1070029
9
We further note that although the trial court entered an
order articulating its reasoning for entering a summary
judgment in favor of Ernest Jr. and the estate, "our review is
not limited to that reasoning, and we may affirm the summary
judgment[] if [it is] proper for any reason supported by the
record." Lee L. Saad Constr. Co. v. DPF Architects, P.C., 851
So. 2d 507, 521 (Ala. 2002) (citing Smith v. Equifax Servs.,
Inc., 537 So. 2d 463 (Ala. 1988)).
III.
In its August 31, 2007, summary-judgment order, the trial
court listed three bases for its decision: 1) that DeFriece
and Durst were not damaged by the misrepresentations allegedly
made by Ernest Jr. and the estate; 2) that the doctrine of
judicial estoppel barred DeFriece and Durst's claims; and 3)
that the misrepresentations allegedly made by Ernest Jr. were
illusory and therefore could not provide the basis for an
actionable fraud claim. On appeal, DeFriece and Durst argue
that all three of these conclusions are erroneous. Ernest Jr.
and the estate predictably argue that the trial court's order
was correct in every respect, and they make the additional
arguments that the summary judgment should be affirmed: 1) on
1061825 and 1070029
10
the basis of the Statute of Frauds because, they say, DeFriece
and Durst have produced no signed writing supporting their
claims; 2) on the basis of the statute of limitations; and 3)
because DeFriece and Durst could not have reasonably relied on
the alleged misrepresentations. For the reasons that follow,
we agree that DeFriece and Durst's claims are barred by the
Statute of Frauds because there is no writing to support the
claims. Accordingly, we review only that argument, and we
need not consider the other arguments made by Ernest Jr. and
the estate concerning other potential bases for affirming the
trial court's judgment.
Alabama's Statute of Frauds, § 8-9-2, Ala. Code 1975,
provides, in pertinent part:
"In the following cases, every agreement is void
unless such agreement or some note or memorandum
thereof expressing the consideration is in writing
and subscribed by the party to be charged therewith
or some other person by him thereunto lawfully
authorized in writing:
"....
"(5) Every contract for the sale of
lands, tenements or hereditaments, or of
any interest therein, except leases for a
term not longer than one year, unless the
purchase money, or a portion thereof is
paid and the purchaser is put in possession
of the land by the seller ...."
1061825 and 1070029
11
All the fraud claims asserted by DeFriece and Durst are
premised on the contentions that Nell promised that she would
transmit to them and to Ernest Jr., in equal one-third shares,
the real property she received under the tax-saving plan
agreed to following Ernest Sr.'s death and that Ernest Jr.
promised them that he would not accept more than a one-third
share of that same property. It is undisputed that both of
these promises –– Nell's promise and Ernest Jr.'s promise ––
implicate the conveyance of an interest in land, and this
Court has previously made clear that "'[t]he Statute of Frauds
requires that any agreement to convey an interest in land ...
be in writing.'" Tonsmeire v. AmSouth Bank, 659 So. 2d 601,
604 (Ala. 1995) (quoting with approval the trial court's
order). Despite this clear statement of law, DeFriece and
Durst attempt to avoid the application of the Statute of
Frauds in five ways.
First, DeFriece and Durst argue that the trial court did
not enter the summary judgment on the basis of the Statute of
Frauds and that whether the promises violated the Statute of
Frauds is therefore not an issue subject to this Court's
review on appeal. However, although it is true that the trial
1061825 and 1070029
12
court did not base its judgment on the Statute of Frauds, the
trial court acknowledged that Ernest Jr. and the estate had
raised that defense, and it recognized that the Statute of
Frauds "may provide [a] valid and independent bas[i]s for
granting summary judgment." In any event, we will affirm a
summary judgment if that judgment is proper for any reason
supported by the record, even if the basis for our affirmance
was not the basis of the decision below and even if the basis
for our affirmance was not argued below. Smith v. Equifax
Servs., Inc., 537 So. 2d at 465.
DeFriece and Durst argue, second, that the Statute of
Frauds applies only to promises and representations that are
part of contractual agreements. DeFriece and Durst argue that
the misrepresentations allegedly made by Ernest Jr. and Nell
were not "contractual in nature"; rather, they were simply
fraudulent statements that now support claims of promissory
fraud. In Bruce v. Cole, 854 So. 2d 47, 58 (Ala. 2003), this
Court considered the relationship between breach-of-contract
claims and promissory-fraud claims insofar as the Statute of
Frauds is concerned and, after overruling a previous line of
cases, held that "an oral promise that is void by operation of
1061825 and 1070029
13
the Statute of Frauds will not support an action against the
promisor for promissory fraud." Thus, regardless of whether
the misrepresentations allegedly made by Ernest Jr. and the
estate are viewed as contractual in nature or as simply
fraudulent, they are subject to the Statute of Frauds because
they concern the conveyance of an interest in land.
In a related argument, DeFriece and Durst argue, third,
that the Statute of Frauds is inapplicable if fraud occurred
during the inception of an agreement. In support of this
argument, DeFriece and Durst cite the following passage from
Leisure American Resorts, Inc. v. Knutilla, 547 So. 2d 424,
427 (Ala. 1989):
"It is a well-established principle that equity
will intervene and render the Statute of Frauds
defense inapplicable in a contract action
"'even
though
the
part
performance
requirement is not met, when fraud operates
from the beginning –– that is, when the
breaching party procured the land ... with
no intent to perform the oral agreement
admitted to have been made.'
"Darby v. Johnson, 477 So. 2d 322, 326-27 (Ala.
1985)."
We did not, in Bruce, include Leisure American Resorts or
Darby v. Johnson, 477 So. 2d 322 (Ala. 1985), in the list of
1061825 and 1070029
We did in Bruce expressly overrule Hinkle v. Cargill,
2
Inc., 613 So. 2d 1216, 1220 (Ala. 1992), in which this Court
had stated:
"[The appellee] argues that a fraud action
cannot be based on the breach of an unwritten
contract that is void under the Statute of Frauds.
As the above-cited authorities show, however, the
Statute of Frauds does not bar proof of a fraud
committed by means of a promise that ordinarily
could not be enforced as a contractual promise
because of the Statute of Frauds. Furthermore, 'it
is well settled in Alabama that fraud may be
predicated upon a breach of contract which is void,
because not in writing, where the contract was made
for the purpose of perpetrating the fraud.' Caron
v. Teagle, 408 So. 2d 494, 496 (Ala. 1981)."
Among the "above-cited authorities" referred to in this
passage is Darby v. Johnson, 477 So. 2d 322 (Ala. 1985), upon
which Leisure American Resorts relied.
14
cases that were being overruled; however, our holding that an
oral promise that is void by operation of the Statute of
Frauds will not support an action for promissory fraud
ultimately had that effect. Bruce stands for the proposition
2
that a party may not avoid the effect of the Statute of Frauds
by framing the claim as one alleging promissory fraud or by
invoking the historical fraud-in-the-inception exception to
the Statute of Frauds. Accordingly, DeFriece and Durst's
argument in this regard is foreclosed by our holding in Bruce.
1061825 and 1070029
15
DeFriece and Durst argue, fourth, that even if this Court
holds that the Statute of Frauds applies to their claims,
multiple writings exist that, when considered together,
satisfy the requirement in § 8-9-2 that the alleged promises
to convey real property be "in writing and subscribed by the
party to be charged therewith or some other person by him
thereunto lawfully authorized in writing." The documents that
DeFriece and Durst allege jointly constitute a written
memorialization of Ernest Jr. and Nell's alleged promises are:
1) a brief submitted to the Probate Court of Clarke County
following Ernest Sr.'s death; 2) a will Nell purportedly made
in 1990; 3) a letter written to DeFriece, Durst, Ernest Jr.,
and Nell in September 1993 by the attorney helping them with
Ernest Sr.'s estate; and 4) the September 1993 deeds whereby
Nell transmitted to DeFriece, Durst, and Ernest Jr. an
undivided 22.25% interest in the real property she received
after
Ernest
Sr.'s
death,
and
the
March
1997
deeds
partitioning that same property. For the reasons that follow,
these documents are insufficient to satisfy the Statute of
Frauds.
1061825 and 1070029
16
First, we note that the only documents identified that
actually contain the required signatures of Ernest Jr. and
Nell are the deeds. However, these deeds contain no language
that would indicate that Ernest Jr. and Nell actually made the
misrepresentations they are accused of making; rather, they
are standard deeds conveying and partitioning property.
"Although a writing relied on to satisfy the Statute of Frauds
need not be a complete contract, it must contain the essential
terms of the alleged contract, 'namely, an offer and an
acceptance, consideration, and mutual assent to the essential
terms of the agreement.'" Fausak's Tire Ctr., Inc. v.
Blanchard, 959 So. 2d 1132, 1138 (Ala. Civ. App. 2006)
(quoting Davis v. Barnfield, 833 So. 2d 58, 62 (Ala. Civ. App.
2002) (citing Wilma Corp. v. Fleming Foods of Alabama, Inc.,
613 So. 2d 359 (Ala. 1993), overruled on another ground, Bruce
v. Cole, supra)). These deeds contain none of those essential
terms.
We do not know if the will purportedly made by Nell in
1990 contains her signature because that will is not in the
record. Indeed, it is apparently no longer in existence;
DeFriece and Durst acknowledge that it was destroyed. It is
1061825 and 1070029
17
self-evident that a writing that does not exist cannot be used
to satisfy the Statute of Frauds.
Finally, the letter to the family and the brief submitted
to the probate court are not signed by any of the family
members; rather, they are both signed by the attorney who was
advising the family following Ernest Sr.'s death. Ernest Jr.
and the estate dispute that these two documents support the
claim that they made the alleged misrepresentations to
DeFriece and Durst; however, even if we were to assume the
contrary, there is no evidence in the record indicating that
Ernest Jr. or Nell gave that attorney written authorization to
make those representations on their behalf; accordingly, these
documents are not sufficient to meet the signed-writing
requirement of the Statute of Frauds. See Hight v. Byars, 569
So. 2d 387, 388 (Ala. 1990) ("Alabama law is well settled on
the principle that in order for an agent to act on a
principal's behalf regarding a matter controlled by the
Statute of Frauds, the agent's authority must be in writing.
Moreover, any contract made by an agent without written
authority is void if the contract itself is one that has to be
in writing." (citations omitted)).
1061825 and 1070029
18
Finally, DeFriece and Durst argue that their complaint
supports actions alleging unjust enrichment and ordinary
fraud, which claims they allege are undisputedly outside the
ambit of the Statute of Frauds. However, regardless of
whether the facts in their complaint would support such
actions, they have never asserted those claims. In their
response to Ernest Jr.'s motion for a summary judgment that
they filed with the trial court, DeFriece and Durst
acknowledged that "besides the will contest itself, the
contestants' action is one in promissory fraud, based upon
their reasonable reliance on the representations made by
[Nell] and Ernest [Jr.]." DeFriece and Durst cannot now, in
this appellate court, raise for the first time claims that
were never made in the trial court. Andrews v. Merritt Oil
Co., 612 So. 2d 409, 410 (Ala. 1992).
IV.
In its order entering a summary judgment in favor of
Ernest Jr. and the estate on the fraud claims asserted by
DeFriece and Durst, the trial court concluded as a matter of
law that DeFriece and Durst were not damaged by the
misrepresentations allegedly made by Ernest Jr. and Nell, that
1061825 and 1070029
As this Court stated in Smith v. Equifax Services, Inc.,
3
537 So. 2d at 465: "We do not mean to imply that the reasons
given by the trial court for granting the summary judgment ...
were wrong or insufficient, but merely that we do not need to
address those reasons, because we can uphold the trial court's
judgment on [other grounds] ...."
19
DeFriece and Durst's claims were barred by the doctrine of
judicial estoppel, and that the misrepresentations allegedly
made by Ernest Jr. were illusory and therefore unable to
provide the basis for an actionable fraud claim. Without
reaching those reasons, we conclude that the trial court's
judgment is due to be affirmed on the basis of the Statute of
Frauds, which requires that an agreement to convey an interest
in land be in writing. There is no writing memorializing the
3
alleged agreement in this case, and for that reason the
summary judgment in favor of Ernest Jr. and the estate on the
fraud claims is affirmed.
1061825 –– AFFIRMED.
1070029 –– AFFIRMED.
Cobb, C.J., and Lyons, Bolin, and Murdock, JJ., concur. | April 11, 2008 |
97f83b82-62da-4f0f-97a6-aa8327a122d1 | Edwin L. Edwards, individually, and ELL 12, LLC, d/b/a Huntsville Kia v. Kia Motors of America, Inc. | N/A | 1061167 | Alabama | Alabama Supreme Court | REL: 5/16/08
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, 2007-2008
____________________
1061167
____________________
Edwin L. Edwards, individually, and ELL 12, LLC, d/b/a
Huntsville Kia
v.
Kia Motors of America, Inc.
Certified Question from the United States Court of Appeals
for the Eleventh Circuit
(No. 06-14306)
SEE, Justice.
This case is before us on a certified question from the
United States Court of Appeals for the Eleventh Circuit.
1061167
2
Edwin L. Edwards, individually, and ELL 12, LLC, d/b/a
Huntsville Kia (hereinafter referred to collectively as
"Edwards"), sued Kia Motors of America, Inc. ("KMA"), in
federal court, alleging violations of the Alabama Motor
Vehicle Franchise Act, § 8-20-1 et seq., Ala. Code 1975 ("the
Franchise Act"). Pursuant to Rule 18, Ala. R. App. P., the
federal court has certified the following question to this
Court:
"[W]hether the Franchise Act permits an automobile
dealer to bring a claim under the Act, despite the
fact that both parties already executed a mutual
release agreement in which the dealer relinquished
all existing legal claims against the manufacturer
in
exchange for valid consideration."
We answer that question in the negative.
Facts and Procedural History
In 2002, Edwards purchased a struggling Kia dealership in
Huntsville, with the understanding that KMA would later award
Edwards a dealership franchise in Opelika and find a buyer for
the Huntsville dealership. However, over the next two years,
contractual disputes developed between Edwards and KMA
regarding inventory shipments and payments for warranty
services and dealer incentives. The Huntsville dealership
continued to lose money, and, with no indication that KMA
1061167
3
would award Edwards the Opelika dealership, Edwards sought a
buyer for the Huntsville dealership. In 2004, Edwards, who
had suffered continued losses, found a potential buyer for the
Huntsville dealership. Pursuant to the dealership agreement
between Edwards and KMA, Edwards was required to secure KMA's
approval before transferring the dealership to any buyer.
When Edwards asked for KMA's approval for the sale, KMA asked
Edwards to sign a "Mutual Release Agreement," which provided
that the parties agreed to
"release, acquit and forever discharge
one another
of
and from all claims which have arisen or may ever
arise, demands and causes of action arising from,
related to, or in any manner connected with the sale
and service of Kia Products, including, without
limitation, the Dealer Agreement, and from any and
all claims for damages, related to or in any manner
connected with the Dealer Agreement or the parties'
business relationship. ..."
Edwards states that, with the deadline for closing the sale of
the Huntsville dealership approaching, Edwards was afraid that
KMA would not approve the sale if Edwards refused to sign the
release. In December 2004, Edwards signed the release and,
thereafter, completed the sale of the Huntsville dealership.
In July 2005, Edwards brought the underlying action in the
federal district court, alleging violations of the Franchise
1061167
The amici curiae brief filed by the Automobile Dealers
1
Association of Alabama, Inc., and the National Automobile
Dealers Association argues
that
the issue is, instead, whether
the Franchise Act "encompasses retrospective releases of
liability that were not the result of a good faith settlement
of a bona-fide legal dispute and were not supported by
adequate consideration." Amici brief at 2. However, the
Eleventh Circuit Court of Appeals has not asked us to
determine whether the settlement was negotiated in good faith
and supported by adequate consideration, nor have the parties
made this argument in their briefs.
4
Act and asserting other common-law claims. KMA moved for a
partial summary judgment on those claims KMA argued were
barred by the release. The court entered a summary judgment
in favor of KMA on those claims, and Edwards appealed to the
United States Court of Appeals for the Eleventh Circuit. The
Eleventh Circuit affirmed the judgment in part and then
certified
to
this
Court
this
question
of
statutory
interpretation of the Franchise Act.
Analysis
The sole issue before us is whether the language of § 8-
20-11, Ala. Code 1975, and the remedial purpose of the
Franchise Act permit automobile dealers to bring claims under
the Franchise Act against automobile manufacturers after they
have executed a mutual release of, among other claims, those
then existing claims. Section 8-20-11 reads as follows:
1
1061167
The statute does not distinguish between the dealer and
2
the manufacturer in its definition of "[any] person." § 8-20-
5
"Notwithstanding the terms, provisions, or
conditions of any dealer agreement or franchise or
the
terms
or
provisions
of
any
waiver,
and
notwithstanding any other legal remedies available,
any person who is injured in his business or property
by a violation of this chapter by the commission of
any unfair and deceptive trade practices, or because
he refuses to accede to a proposal for an arrangement
which, if consummated, would be in violation of this
chapter, may bring a civil action in a court of
competent jurisdiction in this state to enjoin
further violations, to recover the damages sustained
by him together with the costs of the suit, including
a reasonable attorney's fee."
Edwards argues that § 8-20-11 is a remedial statute that
must be interpreted broadly and that the release agreement
Edwards and KMA signed thus falls within the statutory meaning
of "any waiver." Edwards further argues that a broad
interpretation of the phrase "any waiver" creates an exception
for both prospective releases -- those dealing with issues
that have not arisen at the time the release is executed --
and retrospective releases -- those dealing with issues known
or accrued at the time the release is executed. Therefore,
Edwards argues, it should be able to bring its claims
notwithstanding the mutual release agreement it entered into
with KMA.
2
1061167
3(12), Ala. Code 1975. Therefore, under Edwards's theory, the
manufacturer would likewise be free to sue the dealer,
notwithstanding that the dealer had undertaken substantial
obligations in settlement of a manufacturer's claim against
the dealer under the Franchise Act.
KMA bases its argument on the general law of Alabama on
3
§ 12-21-109, Ala. Code 1975: "All receipts, releases and
discharges in writing, whether of a debt of record, a contract
under seal or otherwise, and all judgments entered pursuant to
pro tanto settlements, must have effect according to their
terms and the intentions of the parties thereto." KMA argues
that based on this statute, the release should be enforced
according to its terms. However, we have held: "Pursuant to
the principle that statutes dealing with the same subject
should be read in pari materia, statutes should be construed
together so as to harmonize them as much as practical, and, in
the event of a conflict, a specific statute relating to a
specific subject will prevail over a general statute relating
to a broad subject." Peebles v. Mooresville Town Council, [Ms.
1060335, September 7, 2007] ___ So. 2d ___, ___ n.5 (Ala.
2007)(citing Ex parte Jones Mfg. Co., 589 So. 2d 208, 211 (Ala
1991)). To the extent that the Franchise Act and § 12-21-109,
Ala. Code 1975, might both apply to a release that, as in this
case, is a transaction between an automobile dealer and an
automobile manufacturer, the specific provisions of the
Franchise Act control over the general provisions of § 12-21-
109, Ala. Code 1975.
6
KMA argues in response that retrospective releases are
favored under general Alabama law and under the Franchise Act
in particular. KMA further asserts that § 8-20-11, Ala. Code
3
1975, does not encompass retrospective releases of existing
claims and alleges that a construction of the Franchise Act
that allows parties to bring an action under the Act despite
1061167
As
the Eleventh Circuit
Court
of
Appeals indicates
in
its
4
opinion affirming the partial summary judgment in part, the
few
instances
of
caselaw
from
other
jurisdictions
dealing
with
this issue are inapposite because of specific provisions in
the statutes at issue in those cases that provide for the
recognition of retrospective releases. Edwards v. Kia Motors
of America, Inc., 486 F.3d 1229, 1235 (11th Cir. 2007) (citing
Sportique Motors, Ltd. v. Jaguar Cars, Inc., 195 F. Supp. 2d
390, 397-98 (E.D.N.Y. 2002)("Further, [the plaintiffs] were
businessmen, represented by counsel, advised of the need for
the Release well before the execution thereof, and had the
option to invoke [a section] of the Dealer Agreement and
except the warranty reimbursement claims from the Release."),
and Schmitt-Norton Ford, Inc. v. Ford Motor Co., 524 F. Supp.
1099, 1105 (D. Minn. 1981)("The state regulations adopted
7
having executed a mutual retrospective release would foster an
absurd result.
After a review of the question certified to us by the
United States Court of Appeals for the Eleventh Circuit and an
examination of the arguments of the parties, it appears that
the dispositive issue is whether the legislature intended the
term "any waiver" in § 8-20-11, Ala. Code 1975, to apply to the
type of mutual release agreement at issue here, or, in other
words, whether the legislature intended § 8-20-11 to apply so
broadly as to preclude parties subject to the Franchise Act
from reaching any form of binding agreement by which then
existing, ripe claims could be mutually settled without resort
to a judicial determination of the claim.4
1061167
under the statute clearly allow good faith settlement of
disputes: 'Nothing herein shall be construed to limit or
prohibit good faith settlements of disputes when such
settlements
are
voluntarily
entered
into
between
the
parties.'
Minn.Reg.S.Div. 1718 (1976). Nothing in the provisions cited
by the plaintiffs prevents settlement for past causes of
action; the statute is aimed at prospective waivers of
rights.")).
8
"This Court has held that the fundamental rule of
statutory construction is to ascertain and give
effect to the intent of the Legislature in enacting
a statute. ... If possible, a court should gather
the legislative intent from the language of the
statute itself. ... The legislative intent may be
gleaned from the language used, the reason and
necessity for the act, and the purpose sought to be
obtained by its passage."
Norfolk S. Ry. v. Johnson, 740 So. 2d 392, 396 (Ala. 1999). We
first look to the language of the statute. Although the
Franchise Act, in § 8-20-3, Ala. Code 1975, defines 13 terms,
1061167
Although the Franchise Act does not define "waiver," it
5
is a well-settled principle of Alabama law that a "'[w]aiver
is generally defined as the intentional relinquishment of a
known right.' Bell v. Birmingham Broad. Co., 263 Ala. 355,
357, 82 So. 2d 345, 347 (1955)." Ernst & Young, LLP v. Tucker,
940 So. 2d 269, 288 (Ala. 2006) (See, J., concurring
specially).
This Court has stated that "[a] release is a contract and
6
must be supported by a lawful and valuable consideration; and,
if not supported by a lawful consideration, is nudum pactum.
Brown v. Lowndes County, 201 Ala. 437, 78 So. 815, 817."
Hamilton v. Edmundson, 235 Ala. 97, 101, 177 So. 743, 746
(1937).
9
neither "waiver" nor "release" appears in that definitional
5
6
section.
In § 8-20-2, Ala. Code 1975, the legislature expressed its
intent in enacting the Franchise Act:
"The legislature finds and declares that the
distribution and sale of motor vehicles within this
state vitally affect the general economy of the state
and the public interest and the public welfare, and
that in order to promote the public interest and the
public welfare, and in the exercise of its police
power, it is necessary to regulate motor vehicle
manufacturers, distributors, dealers, and their
representatives and to regulate the dealings between
manufacturers and distributors or wholesalers and
their dealers in order to prevent fraud and other
abuses upon the citizens of this state and to protect
and preserve the investments and properties of the
citizens of this state."
"The purpose of the [Franchise] Act is clear. It is to protect
the state's citizens from abuses by motor vehicle manufacturers
1061167
10
and dealers, and, to that end, to regulate manufacturers and
dealers and the dealings between manufacturers and their
dealers." Sutherlin Toyota, Inc. v. Toyota Motor Sales USA,
Inc., 549 So. 2d 460, 461 (1989). We have stated that the
purpose of the Franchise Act is "to give balance to the
inequality of bargaining power between individual dealers and
their manufacturers." Tittle v. Steel City Oldsmobile GMC
Truck, Inc., 544 So. 2d 883, 887 (1989). The Franchise Act
proscribes certain practices, such as persuading dealers to
absolve the manufacturer from liability arising from the unfair
trade practices enumerated in the Franchise Act. However,
there is no indication of a legislative intent to prohibit the
parties to an automobile-dealership franchise agreement from
reaching a good-faith settlement of existing claims after those
claims arise and entering into a binding settlement agreement.
Section 8-20-11, Ala. Code 1975, authorizes the dealer or
the manufacturer to bring a civil action notwithstanding the
terms of the dealership agreements, franchise agreements, or
waivers, and notwithstanding the availability of other legal
remedies. However, there is no indication that § 8-20-11 does
or was intended to prohibit the settlement of known claims as
1061167
11
an alternative to taking them to trial and ultimately to
judgment. If the legislature had wished to include the
settlement and release of known claims in the language of § 8-
20-11, Ala. Code 1975, it knew how to do so. The legislature
lists prospective releases and waivers in describing specific
unfair trade practices under the Franchise Act:
"[T]he following acts or conduct shall constitute
unfair and deceptive trade practices:
"....
"(3) For any manufacturer, factory branch,
factory representative, distributor, or wholesaler,
distributor branch or distributor representative:
"....
"(m) To prospectively assent to a release,
assignment, novation, waiver, or estoppel which
would relieve any person from any liability or
obligation under this chapter or to require any
controversy between a new motor vehicle dealer
and a manufacturer to be referred to any person
other than the duly constituted courts of this
state or the United States, if the referral would
be binding on the new motor vehicle dealer ...."
§ 8-20-4(3)(m), Ala. Code 1975. The legislature did not
similarly include a retrospective release as an unfair trade
practice or include such a release in its list of ineffective
provisions in § 8-20-11. Had the legislature meant to require
1061167
12
the litigation of every disagreement between a manufacturer and
a dealer, it could have said so.
We have read the disputed language of § 8-20-11 of the
Franchise Act in the context of the entire Act. The dissent
takes issue with our decision to do so. It criticizes this
Court for not looking at the language of the provision in
isolation, at what the dissent calls the "very plain language"
of the phrase "any waiver." The dissent notes that the parties
have "'conceded that the terms "waiver" and "release" can be
synonymous.'" ___ So. 2d at ___ (quoting Edwards v. Kia Motors
of America, Inc., 486 F.3d 1229, 1233 (11th Cir. 2007))
(emphasis added). Apparently, because there exists a context
in which the two terms can be used synonymously, the dissent
would have this Court not inquire whether, in the context of
the Franchise Act, the legislature intended the terms to be
synonymous. This, the dissent would have us believe, is what
is meant by "plain meaning."
This Court recently stated:
"Our inquiry is governed
by
settled principles of
statutory construction:
"'"The fundamental rule of statutory
construction is that this Court is to
1061167
13
ascertain and effectuate the legislative
intent as expressed in the statute. League
of Women Voters v. Renfro, 292 Ala. 128, 290
So. 2d 167 (1974). In this ascertainment,
we must look to the entire Act instead of
isolated phrases or clauses; Opinion of the
Justices, 264 Ala. 176, 85 So. 2d 391
(1956)."'"
Bright v. Calhoun, [Ms. 1061146, January 11, 2008] ___ So. 2d
___, ___ (Ala. 2008) (quoting City of Bessemer v. McClain, 957
So. 2d 1061, 1074-75 (Ala. 2006), quoting in turn Darks Dairy,
Inc. v. Alabama Dairy Comm'n, 367 So. 2d 1378, 1380 (Ala.
1979)). "Because the meaning of statutory language depends on
context, a statute is to be read as a whole." Ex parte Jackson
614 So. 2d 405, 406 (Ala. 1993). In determining legislative
intent our interpretation of the statutory language in § 8-20-
11, therefore, must be guided by the Franchise Act as a whole,
instead of simply accepting as exclusive and inevitable the
possible meaning of two isolated words outside this or any
other particular context. "'"A word is not a crystal,
transparent and unchanged, it is the skin of a living thought
and may vary greatly in color and content according to the
circumstances and the time in which it is used."'" Parker v.
State, 648 So. 2d 653, 657 (Ala. Crim. App. 1994) (quoting Lowe
1061167
The implication in the dissent is that the Franchise Act
7
should be read to operate against the manufacturer and in
favor of the dealer and that it is the duty of this Court to
enforce such an application in favor of the one and against
the other class of parties. It is instead the duty of this
Court to apply the law as it is written, regardless of the
identity of the parties, "dispassionately approach[ing] the
issues on their merits, as we are required by oath to do."
Kaylor v. State, 782 So. 2d 206, 211 (Ala. 2000). The
language of § 8-20-11, Ala. Code 1975, that must guide us in
our decision applies, as we remark in note 2, to "any person
[whether manufacturer or dealer] who is injured in his
business or property by a violation of this chapter by the
commission of any unfair and deceptive trade practices ...."
(Emphasis added.) The remedies provided by the Franchise Act
are thus available to the manufacturer for the dealer's unfair
or deceptive trade practices delineated in § 8-20-4(2) and to
the dealer for the manufacturer's unfair or deceptive trade
practices delineated in § 8-20-4(1). If the one is bound, the
other is also; if the one is not bound, neither is the other.
14
v. State, 54 Ala. App. 280, 284-85, 307 So. 2d 86, 90 (1974)
(Cates, J., concurring specially), quoting in turn Towne v.
Eisner, 245 U.S. 418 (1918)). We decline to ignore the
legislative intent expressed in the Franchise Act as a whole in
favor of an isolated interpretation of the phrase "any waiver"
that is required to produce the result the dissent would have
us reach.
7
Conclusion
The remedial purpose of the Franchise Act is to address
unfair trade practices between automobile manufacturers and
1061167
15
automobile dealers in the State of Alabama. Section 8-20-11,
Ala. Code 1975, protects both parties by prohibiting either
from exempting its conduct from the requirements of the
Franchise Act. It does not, however, render unenforceable the
settlement and release of existing claims. We, therefore,
answer the federal court's question in the negative.
QUESTION ANSWERED.
Lyons, Woodall, Stuart, Smith, Bolin, Parker, and Murdock,
JJ., concur.
Cobb, C.J., dissents.
1061167
See also
Keenan D. Kmiec, The
Origin and Current Meanings
8
of "Judicial Activism," 92 Cal. L. Rev. 1441 (2004).
16
COBB, Chief Justice (dissenting).
I dissent. The term "judicial activism" is susceptible to
many meanings; it has been referred to as a "notoriously
slippery term." Frank H. Easterbrook, Do Liberals and
Conservatives Differ in Judicial Activism? 73 U. Colo. L. Rev.
1401 (2002). However, as this Court discusses the term in the
8
context of the review of substantive law or statutes, see,
e.g., Alabama Power Co. v. Citizens of Alabama, 740 So. 2d 371
(Ala. 1999), it implies a willingness on the part of the Court
to invade, improperly, the province of the legislature by
refusing to apply the plain meaning of the statute before us in
favor of substituting language and meaning that are not
otherwise present. Thus, the Court becomes a sort of
"superlegislature" that imposes its particular agenda on the
citizens of our State without the benefit of the usual
legislative process. Certainly this is a bad thing. Not only
does the Court disregard its obligations under the state and
federal constitutions, but it also demonstrates an abandonment
of principles that are absolutely critical to an effective
1061167
17
system of justice. "Our system relies for its validity on the
confidence of society; without a belief by the people that the
system is just and impartial, the concept of the rule of law
cannot survive." People ex rel. Clancy v. Superior Court of
Riverside County, 39 Cal. 3d 740, 746, 705 P. 2d 347, 351, 218
Cal. Rptr. 24, 28 (1985).
When judicial activism is understood as the willingness of
this Court to improperly substitute itself for the legislature,
this case presents a picture of judicial activism that is worth
a thousand words. Section 8-20-11, Ala. Code 1975, states:
"Notwithstanding
the
terms,
provisions,
or
conditions of any dealer agreement or franchise or
the
terms
or
provisions
of
any
waiver,
and
notwithstanding any other legal remedies available,
any person who is injured in his business or property
by a violation of this chapter by the commission of
any unfair and deceptive trade practices, or because
he refuses to accede to a proposal for an arrangement
which, if consummated, would be in violation of this
chapter, may bring a civil action in a court of
competent jurisdiction in this state to enjoin
further violations, to recover the damages sustained
by him together with the costs of the suit, including
a reasonable attorney's fee."
(Emphasis added.) In addition to this very plain language,
this Court has also discussed the legislature's purpose in
enacting the Franchise Act as "to give balance to the
1061167
18
inequality of bargaining power between individual dealers and
their manufacturers." Tittle v. Steel City Oldsmobile GMC
Truck, Inc., 544 So. 2d 883, 887 (Ala. 1989)(emphasis added).
That is, automobile dealers in this State are to receive some
protection from the inequality of bargaining power that exists
in their transactions with automobile manufacturers by having
their claims of violations under the Franchise Act preserved
for judicial adjudication, regardless of contractual releases
or waivers the dealers may be compelled to sign in order to do
business.
That purpose is directly applicable to this case, a
situation in which an automobile dealer has been pressured into
signing a release in order to effectively transact business
with a much more powerful automobile manufacturer. Here, as a
result of the manufacturer's unfulfilled promises, Edwards had
the choice of executing the release or suffering financial
ruin, essentially a choice "between a rock and a hard place."
In spite of the facts presented here, and in spite of the plain
language of § 8-20-11 and this Court's previous statements of
law concerning the legislature's intent as stated in § 8-20-2,
the majority opinion embarks on a semantic voyage to ascertain
1061167
19
the legislature's "intent" by attempting to parse a meaningful
distinction between concepts of "release" and "waiver," a
distinction the parties have conceded does not exist. See
Edwards v. Kia Motors of America, Inc., 486 F.3d 1229, 1233
(11th. Cir. 2007) ("[D]uring oral argument, both parties
conceded that the terms 'waiver' and 'release' can be
synonymous."). The result of the majority's analysis is a
conclusion that the emphasized language quoted above from § 8-
20-11 does not mean what it says it means. Because I cannot,
on any reasonable reading of the above statutory language --
particularly in light of the legislative purpose in enacting
the Franchise Act -- conclude that it means other than what it
says, I must conclude that the release agreement does not bar
Edwards's action. In short, the majority opinion rewrites § 8-
20-11 to say that certain releases and waivers do in fact
operate to prevent a dealer from bringing a claim under the
Franchise Act in the courts of our State. Not only does the
opinion "relegislate" § 8-20-11, but it also obviates the
legislature's intent as expressed in § 8-20-2 and Tittle,
supra, so as to remove the protections in the Franchise Act
1061167
20
from the inequality in bargaining power that exists between
dealers and manufacturers.
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 the language as stated. The
rule has generally been stated as follows:
"'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, [Ms. 1061146, January 11,
2008] ___ So. 2d ___ , ___ (Ala. 2008) (quoting City of
Bessemer v. McClain, 957 So. 2d 1061, 1074-75 (Ala. 2006)
("'To discern 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.
1061167
21
State, [Ms. 1050299, September 21, 2007] ___ So. 2d ___, ___
(Ala. 2007) ("'[P]rinciples of statutory construction instruct
this Court to interpret the plain language of a 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, [Ms. 1060135, August 17, 2007] ___ So. 2d
___, ___ (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 IMED 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
1061167
22
principle that this Court's paramount duty is to interpret the
plain language of the law to mean what it says.
With respect to the contention that giving effect to the
plain language of § 8-20-11 means that no preexisting claim can
ever be settled, it is more accurate to say that giving effect
to the plain language of the statute means that a manufacturer
may not by weight of its greater bargaining position in
compelling a franchise agreement force a dealer to give up its
right to adjudicate its claims of violations of the Franchise
Act. Claims may still be settled by adjudication and
settlement, and claims may be forestalled by honest business
practices that do not give rise to violations of the Franchise
Act. The statute says what it says. Had the legislature
intended to except the release of known claims from the
operation of § 8-20-11, it could have done so. The plain
language of the statute permits litigation alleging an unfair
trade practice notwithstanding prior agreements. This language
may not be convenient for an entity that is stronger
economically and that seeks to force a weaker one into
compliance with its terms by allowing a release of known claims
in the context of contract negotiations, but I submit that
1061167
23
disregarding the language and intent of the Franchise Act is
the antithesis of the "strict construction" to which judicial
"conservatives" give lip service." Rather, rewriting § 8-20-
11 and discarding the intent of the legislature represents
judicial activism, which this Court should never endorse.
Because I believe that a consistent application of this Court's
principles of statutory construction is a critical component of
American justice and of this Court's credibility as an agent of
that justice, I must dissent. | May 16, 2008 |
15724fa1-26a3-4e57-8880-110db8e387bc | Chris Myers Pontiac-GMC, Inc. d/b/a Chris Myers Automotive v. Larry C. Perot and Bobbi M. Perot | N/A | 1061090 | Alabama | Alabama Supreme Court | rel: 04/18/2008
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, 2007-2008
____________________
1061090
____________________
Chris Myers Pontiac-GMC, Inc., d/b/a Chris Myers Automotive
v.
Larry C. Perot and Bobbi M. Perot
Appeal from Mobile Circuit Court
(CV-04-4630)
STUART, Justice.
Chris
Myers
Pontiac-GMC,
Inc.,
d/b/a
Chris
Myers
Automotive, appeals the order of the Mobile Circuit Court
denying its motion to compel arbitration of the claims
1061090
2
asserted against it by Larry C. Perot and Bobbi M. Perot. We
reverse and remand.
I.
On July 31, 2002, the Perots purchased a 2002 GMC Savana
conversion van from Chris Myers Automotive. The van was
manufactured by General Motors Corporation ("GM"); however, it
was built as an incomplete vehicle and was finished by Bodar
Corporation d/b/a Explorer Vans. At the time of purchase, the
Perots signed an arbitration agreement that provided, in
relevant part, as follows:
"Buyer/Lessee and Dealer agree that all claims,
demands, disputes, or controversies of every kind or
nature between them arising from, concerning, or
relating to any of the negotiations involved in the
sale, lease, or financing of the vehicle/watercraft;
the terms and provisions of the sale, lease, or
financing agreements; the purchase of insurance,
extended warranties, service contracts, or other
products purchased as an incident to the sale,
lease, or financing of the vehicle/watercraft; the
performance or condition of the vehicle/watercraft;
any trade-in vehicle involved in any such sale or
lease transaction; or any other aspects of the
vehicle/watercraft and its sale, lease, or financing
shall be settled by binding arbitration conducted
pursuant
to
the
provisions
of
the
Federal
Arbitration Act, 9 U.S.C. § 1 et seq., and according
to the Commercial Arbitration Rules of the American
Arbitration Association and/or its agent. ...
"Either party may demand arbitration by filing
with the American Arbitration Association a written
1061090
As part of their purchase of the van, the Perots also
1
signed a form labeled "Retail Buyer's Order" that contained a
substantially identical arbitration provision.
3
Demand for Arbitration along with a statement of the
matter in controversy. It is further understood and
agreed between Buyer/Lessee and Dealer that the
aggrieved party shall be responsible for payment of
the appropriate filing fee as required by the
American Arbitration Association. ..."1
After purchasing the van, the Perots had a recurring
problem with water leaking into the vehicle. Within
approximately a one-year period following their purchase of
the van, the Perots had the van serviced by Chris Myers
Automotive four times for the water-leakage problem. On each
occasion, the repairs were covered by the warranty.
On December 22, 2004, the Perots sued Chris Myers
Automotive, GM, and Explorer Vans in the Mobile Circuit Court,
asserting claims of negligence, violation of the Alabama
Extended Manufacturer's Liability Doctrine, and breach of
express and implied warranties based on the water-leakage
problem. On June 3, 2005, Chris Myers Automotive moved the
trial court to compel arbitration of the Perots' claims
against it pursuant to the arbitration agreement they had
signed when they purchased the van; the trial court granted
the motion on August 12, 2005.
1061090
4
The Perots continued to prosecute their claims against GM
and Explorer Vans; however, neither the Perots nor Chris Myers
Automotive initiated arbitration proceedings. On December 29,
2006, the Perots moved the trial court to compel Chris Myers
Automotive to initiate arbitration proceedings or, in the
alternative, to reconsider its August 12, 2005, order
compelling arbitration and allow them to litigate their claims
against Chris Myers Automotive in that court. On March 16,
2007, approximately three days after the Perots' claims
against GM and Explorer Vans were dismissed with prejudice
pursuant to a settlement agreement, the trial court entered an
order stating "Defendant's motion to compel arbitration is
denied, ex mero motu." On April 27, 2007, Chris Myers
Automotive filed its notice of appeal challenging that order.
II.
Our standard of review of a ruling on a motion to compel
arbitration is well-settled:
"'This Court reviews de novo the denial of a
motion to compel arbitration. Parkway Dodge, Inc.
v. Yarbrough, 779 So. 2d 1205 (Ala. 2000). A motion
to compel arbitration is analogous to a motion for
a summary judgment. TranSouth Fin. Corp. v. Bell,
739 So. 2d 1110, 1114 (Ala. 1999). The party
seeking to compel arbitration has the burden of
proving the existence of a contract calling for
1061090
5
arbitration and proving that the contract evidences
a transaction affecting interstate commerce. Id.
"[A]fter a motion to compel arbitration has been
made and supported, the burden is on the non-movant
to present evidence that the supposed arbitration
agreement is not valid or does not apply to the
dispute in question." Jim Burke Automotive, Inc. v.
Beavers, 674 So. 2d 1260, 1265 n. 1 (Ala. 1995)
(opinion on application for rehearing).'"
Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003) (quoting Fleetwood Enters., Inc. v. Bruno, 784 So. 2d
277, 280 (Ala. 2000)).
III.
In conjunction with its June 3, 2005, motion to compel
arbitration, Chris Myers Automotive submitted to the trial
court copies of the arbitration agreement signed by the
Perots, as well as evidence indicating that the van purchased
by the Perots had been manufactured by GM in Missouri,
finished by Explorer Vans in Indiana, and then sent to Chris
Myers Automotive in Daphne, where it was sold to the Perots.
This evidence of the existence of "a contract calling for
arbitration and proving that the contract evidences a
transaction affecting interstate commerce" was not refuted by
the Perots. Elizabeth Homes, 882 So. 2d at 315. Because
1061090
6
Chris Myers Automotive had met its burden, the trial court, on
August 12, 2005, granted its motion to compel arbitration.
Nevertheless, on March 16, 2007, the trial court entered
an order ex mero motu denying the same motion to compel
arbitration it had granted on August 12, 2005. The record
does not contain an explanation for that reversal; however,
because no evidence had been submitted indicating that the
arbitration agreement signed by the Perots was invalid or that
it did not apply to the dispute in question, we presume that
that decision was made in response to the Perots' motion
asking the trial court to compel Chris Myers Automotive to
commence arbitration proceedings or, in the alternative, to
allow the Perots to pursue their claims against Chris Myers
Automotive in that court. Indeed, the Perots argue to this
Court that the trial court correctly held that, at the time
the Perots filed their motion to compel Chris Myers Automotive
to initiate arbitration or allow them to proceed to
litigation, Chris Myers Automotive had waived its right to
enforce the arbitration agreement by failing to initiate
arbitration proceedings for approximately 17 months after the
trial court first granted its motion to compel arbitration.
1061090
7
Chris Myers Automotive argues that it never waived its right
to arbitration and that the obligation to commence the
arbitration proceedings rested with the Perots. For the
reasons that follow, we agree with Chris Myers Automotive.
This Court has held that a trial court, in granting a
motion to compel arbitration, cannot alter or ignore the terms
of the arbitration agreement that provides the basis for
compelling arbitration. See, e.g., Southern Energy Homes
Retail Corp. v. McCool, 814 So. 2d 845, 849 (Ala. 2001)
(granting the petition for the writ of mandamus where the
trial court "failed to compel arbitration in a manner
consistent with the terms of [the] arbitration provision");
and Ex parte Cappaert Manufactured Homes, 822 So. 2d 385, 387
(Ala. 2001) ("[Section] 5 [of the Federal Arbitration Act]
mandates that the method set forth in the arbitration
agreement be followed."). The arbitration agreement in the
present case provides:
"Either party may demand arbitration by filing
with the American Arbitration Association a written
Demand for Arbitration along with a statement of the
matter in controversy. It is further understood and
agreed between Buyer/Lessee and Dealer that the
aggrieved party shall be responsible for payment of
the appropriate filing fee as required by the
American Arbitration Association. ..."
1061090
8
"'Agreements to arbitrate are essentially creatures of
contract,'
and
ordinary
contract
rules
govern
the
interpretation
of
arbitration
provisions."
Orkin
Exterminating Co. v. Larkin, 857 So. 2d 97, 103 (Ala. 2003)
(quoting Blount Int'l, Ltd. v. James River-Pennington, Inc.,
618 So. 2d 1344, 1346 (Ala. 1993)). "When interpreting a
contract, a court should give the terms of the contract their
clear and plain meaning and should presume that the parties
intended to do what the terms of the agreement clearly state."
Brewbaker Motors, Inc. v. Belser, 776 So. 2d 110, 112 (Ala.
2000). The clear and plain meaning of the language in the
arbitration agreement the Perots signed indicates that
although either party may enforce the arbitration agreement,
it is the burden of the "aggrieved party" –– the Perots in
this case –– to initiate the arbitration process by filing a
demand for arbitration and by paying the filing fee. This
requirement is logical as well because the aggrieved party is
best situated to produce a statement of the controversy and to
pay the filing fee –– which is determined by the amount of the
aggrieved party's claim, an amount presumably not known by the
defendant until the claim is made.
1061090
9
Moreover, the arbitration agreement also specifically
provides that any disputes "shall be settled by binding
arbitration conducted pursuant to the provisions of the
Federal Arbitration Act, 9 U.S.C. § 1 et seq., and according
to
the
Commercial
Arbitration
Rules
of
the
American
Arbitration Association and/or its agent. ..." The parties
in this case have not referred to the Commercial Arbitration
Rules of the American Arbitration Association ("AAA") or
submitted them into the record; however, we have quoted those
rules in previous cases, and other courts have found it
appropriate to take judicial notice of their content. See,
e.g., Century Satellite, Inc. v. Echostar Satellite, L.L.C.,
395 F. Supp. 2d 487, 493 (S.D. Tex. 2005) ("The Court takes
judicial notice that the AAA's Commercial Arbitration Rules
allow for the appointment of arbitrators in accord with a
method specified by agreement of the parties."). In Northcom,
Ltd. v. James, 848 So. 2d 242, 246 (Ala. 2002), we noted that
the Commercial Rules of the AAA provide as follows:
"'R-4.
Initiation
under
an
Arbitration
Provision
in a Contract
"'(a) Arbitration under an arbitration
provision in a contract shall be initiated
in the following manner:
1061090
10
"'i.
The
initiating
party
(the
"claimant") shall, within the time period,
if any, specified in the contract(s), give
to the other party (the "respondent")
written
notice
of
its
intention
to
arbitrate (the "demand"), which demand
shall contain a statement setting forth the
nature of the dispute, the names and
addresses of all other parties, the amount
involved, if any, the remedy sought, and
the hearing locale requested.
"'ii. The claimant shall file at any
office of the AAA two copies of the demand
and
two
copies
of
the
arbitration
provisions of the contract, together with
the appropriate filing fee as provided in
the schedule included with these rules.
"'iii. The AAA shall confirm notice of
such filing to the parties.'"
Under this rule, it is clear that the "claimant," that is, the
party asserting a claim, has the burden of initiating
arbitration.
Chris Myers Automotive had no obligation under the
arbitration agreement to initiate arbitration proceedings in
the event the Perots had a grievance concerning their purchase
of the van. Chris Myers Automotive therefore could not have
waived its right to require the Perots to arbitrate their
1061090
We note that this case differs from Mangiafico v. Street,
2
767 So. 2d 1103 (Ala. 2000), in which a plurality of this
Court affirmed the trial court's decision to dismiss with
prejudice the plaintiffs' claims after they were ordered to
commence arbitration within 30 days and subsequently failed to
do so. In that case, the arbitration provision agreed to by
the parties gave no indication as to which party had the
responsibility for initiating arbitration proceedings in the
event of a dispute. The trial court therefore, by written
order, placed that responsibility upon the plaintiffs. In
contrast, the arbitration provision in the present case
indicates that the aggrieved party should initiate arbitration
by filing a demand and paying the filing fee and that the
arbitration proceedings would be conducted pursuant to the
Commercial Arbitration Rules of the AAA, which place the
burden of initiating arbitration on the "claimant." Moreover,
there is no evidence in the record indicating that the trial
court, rightfully or wrongfully, ever ordered Chris Myers
Automotive to initiate arbitration.
11
claims by failing to start the arbitration process after the
trial court granted its motion to compel arbitration.2
IV.
Chris Myers Automotive submitted evidence showing that
the Perots signed a contract agreeing that all disputes
between them related to the Perots' purchase of the 2002 GMC
Savana conversion van would be settled in arbitration and that
that purchase was a transaction affecting interstate commerce.
The Perots did not refute that evidence, nor did they
establish that Chris Myers Automotive waived its right to rely
on that arbitration agreement. Therefore, the trial court
1061090
12
erred by denying Chris Myers Automotive's motion to compel
arbitration and its March 16, 2007, order so doing is hereby
reversed, and the cause is remanded for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.
Cobb, C.J., and Lyons and Bolin, JJ., concur.
Murdock, J., concurs in the result.
1061090
13
MURDOCK, Justice (concurring in the result).
The contract between the parties states:
"Buyer/Lessee and Dealer agree that all claims,
demands, disputes, or controversies of every kind or
nature between them arising from, concerning, or
relating to any of the negotiations involved in the
sale, lease, or financing of the vehicle/watercraft;
the terms and provisions of the sale, lease, or
financing agreements; the purchase of insurance,
extended warranties, service contracts, or other
products purchased as an incident to the sale,
lease, or financing of the vehicle/watercraft; the
performance or condition of the vehicle/watercraft;
any trade-in vehicle involved in any such sale or
lease transaction; or any other aspects of the
vehicle/watercraft and its sale, lease, or financing
shall be settled by binding arbitration conducted
pursuant
to
the
provisions
of
the
Federal
Arbitration Act, 9 U.S.C. § 1 et seq., and according
to the Commercial Arbitration Rules of the American
Arbitration Association and/or its agent. ...
"Either party may demand arbitration by filing
with the American Arbitration Association a written
Demand for Arbitration along with a statement of the
matter in controversy. It is further understood and
agreed between Buyer/Lessee and Dealer that the
aggrieved party shall be responsible for payment of
the appropriate filing fee as required by the
American Arbitration Association. ..."
(Emphasis added.) The emphasized portions of the contract,
read together and as juxtaposed in the quoted passage, make it
clear that, in the event of a dispute such as the one at
1061090
Although a party in the position of Chris Myers
3
Automotive might be thought of as less likely to initiate an
arbitration proceeding, its doing so would be comparable to a
potential defendant filing a declaratory-judgment action in a
court of law to resolve a dispute between it and a potential
plaintiff.
14
issue, "[e]ither party may demand," or initiate, arbitration
in order to resolve that dispute.3
The Perots seem to be operating under the impression,
however, that the trial court's August 12, 2005, order
concerning arbitration recognized a unique right or obligation
on the part of Chris Myers Automotive ("Chris Myers") to
initiate arbitration. It did not. Consistent with the
parties' contract, the trial court's order simply amounted to
a ruling that if the parties, or either of them, desired to
obtain a third-party resolution of the dispute that had arisen
between them, such a resolution would have to come from an
arbitration proceeding rather than a judicial proceeding.
In its August 2005 order, the trial court could not
properly, and I see no indication that it purported to, alter
the simple and straightforward "either-party-may-demand"
language of the contract. Instead, after the trial court
ruled that any third-party resolution of the dispute must come
from an arbitration panel rather than a court of law, if
1061090
After being told by the trial court that any third-party
4
resolution of the dispute must come from an arbitration panel
rather than a court, the Perots were free to choose simply to
abandon their claim –- a choice that, but for the motion filed
by the Perots 17 months later, it would appear the Perots
made.
15
"either party" still desired a resolution of their dispute by
a third party, the onus fell on that party to initiate the
process by which that resolution could be obtained. The
Perots were not in a position to sit back and do nothing in
the wake of the trial court's August 2005 order and then,
after 17 months had passed, take the position that that order
vested some right or obligation unique to Chris Myers to
formally initiate the arbitration process and that, because of
Chris Myers's similar inaction during that same period, the
parties must now return to court to litigate their dispute.4
It is on this basis alone that I concur in the result reached
by the main opinion.
As a corollary, I must decline to join in those portions
of the main opinion in which the Court indicates that the
contract language at issue extended some right -- or some
concomitant responsibility or obligation -- to the Perots to
initiate arbitration in a manner that it did not to
Chris Myers. Under the "clear and plain meaning" of the
1061090
The main opinion seeks to bolster its view by noting the
5
passage in the parties' contract that provides that a dispute
"shall be settled by binding arbitration conducted pursuant to
the provisions of the Federal Arbitration Act, 9 U.S.C. § 1
et seq., and according to the Commercial Arbitration Rules of
the American Arbitration Association and/or its agent." The
16
contract language at issue, "[e]ither party" had the right, if
it desired a third-party resolution of the dispute that had
arisen between them, to initiate arbitration proceedings.
Under that same "clear and plain" language, "[e]ither party"
had the obligation, if it desired a third-party resolution of
that dispute, to initiate arbitration proceedings. The
contract did place a special obligation on the Perots, as the
"aggrieved party," to pay the filing fee in the event their
claims were arbitrated. All the contract had to say about who
was to initiate the arbitration process, however, was that
"[e]ither party" could do so. I believe the suggestion in the
main opinion that the contract placed the Perots in some
different position than it did Chris Myers with respect to the
initiation of arbitration is unnecessary to the result reached
and is at odds with the plain and simple "[e]ither party"
language of the contract; it unnecessarily reads something
into the filing-fee clause in the contract that is not in its
plain language either.5
1061090
main opinion takes judicial notice of the Commercial Rules of
the
American
Arbitration Association, and then relies
specifically upon the following definitional phrase contained
within
Rule
R-4(a)i:
"[t]he
initiating
party
(the
'claimant')."
The quoted phrase defines the term "claimant" as meaning
the party, whichever party that might be, that initiates the
arbitration process. It does not define the term "initiating
party" as the party who has some grievance or claim against
another. It simply establishes the shorthand label of
"claimant" for the party who first takes the formal step of
requesting a resolution of a dispute by arbitration.
(Presumably, it does so because this term is more apt than the
term "plaintiff" in the context of an arbitration proceeding
and because it is indeed suggestive of the fact that the party
being referenced is the party who has first "claimed" a
resolution of the parties' dispute by arbitration.) I see
nothing in this definitional phrase that purports to establish
a substantive rule that only a party allegedly wronged, as
opposed to an alleged wrongdoer, must be the party that first
demands the arbitration. In short, the plain language of the
rule means simply that whichever party "initiates" or
"demands" the arbitration will thenceforth be referred to for
purposes of the rules as the "claimant," not that it is only
an aggrieved party who can initiate or demand an arbitration
proceeding. Furthermore, an attempt to read this language
otherwise ignores the reality that in many cases all the
parties (and often there are more than two) may have claims
and cross-claims against each other and that each of them is
typically given the contractual right to initiate or demand
arbitration.
Moreover, the contract at issue here provides merely that
the arbitration shall be "conducted" pursuant to the Federal
Arbitration Act and the Commercial Rules of the American
Arbitration Association. This reference to how an arbitration
is
to
be
"conducted"
cannot
reasonably
be
read
as
contradicting or overriding the more specific, and the more
explicit, clause elsewhere in the contract that expressly
states that any "disputes ... between [the parties] ... shall
17
1061090
be settled by binding arbitration" and then continues in the
first sentence in the next paragraph by stating that "[e]ither
party may demand" that arbitration.
18 | April 18, 2008 |
a04bcd85-9cb6-4caf-b726-2a8db4709273 | Ex parte Jarvis Lamar Bridgett. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Jarvis Lamar Bridgett v. State of Alabama) | N/A | 1070439 | Alabama | Alabama Supreme Court | REL: 06/27/2008
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, 2007-2008
____________________
1070439
____________________
Ex parte Jarvis Lamar Bridgett
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Jarvis Lamar Bridgett
v.
State of Alabama)
(Madison Circuit Court, CC-06-5087;
Court of Criminal Appeals, CR-06-1011)
STUART, Justice.
1070439
2
This Court granted certiorari review to determine whether
the decision of the Court of Criminal Appeals in this case
conflicts with Wong Sun v. United States, 371 U.S. 471 (1963),
and Harris v. State, 568 So. 2d 421 (Ala. Crim. App. 1990).
The Court of Criminal Appeals affirmed the trial court's
denial of Jarvis Lamar Bridgett's motion to suppress evidence
in the form of marijuana seized from a lockbox found in a
bedroom Bridgett was sharing with his girlfriend. We affirm.
Facts
Investigator Shane Killingsworth of the Huntsville Police
Department testified during the hearing on Bridgett's motion
to suppress that he and other officers responded to a
domestic-violence call at the house of the Bridgett's
girlfriend, Gloria Curlan. When the officers arrived,
Bridgett told them he wanted to pack a bag and leave the
house. The officers allowed Bridgett to go upstairs and
retrieve his belongings from the bedroom. While Bridgett was
packing, Curlan told the officers that there were guns in the
bedroom. Killingsworth testified that he immediately went
upstairs. He stated: "I removed [Bridgett] from the bedroom,
patted him down. He didn't have any weapons on him. I
1070439
3
believe the only property that we recovered from him was a key
ring in his jacket pocket." Bridgett was removed from the
house and placed in a police car. A subsequent search of the
bedroom yielded a .25 caliber automatic handgun, a .22 caliber
rifle, and a lockbox. Each gun had a lock on it.
Killingsworth testified that both Bridgett and Curlan told him
that the lockbox belonged to Bridgett. Killingsworth stated
that Bridgett informed him that he did not have the keys to
the lockbox. Killingsworth further testified that he asked
Bridgett if he could use the keys on the key ring to open the
lockbox to see if there were any firearms in it. Bridgett
responded that "he didn't have a problem with it. That none
of the keys would work on the [lockbox] anyway." Contrary to
Bridgett's statement to Killingsworth, keys on the key ring
unlocked the gun locks and the lockbox. The lockbox contained
a small amount of marijuana and a magazine of ammunition for
a handgun.
Marvolene McBride, Bridgett's aunt, testified for the
defense. She stated that Bridgett was placing items in her
vehicle when an officer approached him and escorted him to a
police car. She stated that while the officer and Bridgett
1070439
The first patdown search of Bridgett's person was
1
conducted when the officers arrived at the house.
4
were talking another officer carried the lockbox out of the
house and placed it on the hood of the police car. According
to McBride, she never heard the officer ask Bridgett for
permission to try the keys on the key ring to open the
lockbox.
Bridgett testified at the suppression hearing. According
to Bridgett's testimony, Bridgett was preparing to leave the
house and had just retrieved his shoes when an officer
approached him, conducted a second patdown search of his
1
person, and informed him that he was being detained. The
officer then handcuffed him and placed him in a police car.
Bridgett testified that he was in the back of the police car
for an hour and a half to two hours. Bridgett explained that
he was not wearing a jacket at the time and that he did not
know when or where the officers found the keys the officers
used to open the lockbox and the gun locks. He denied giving
the officers permission to use the keys to try to unlock the
lockbox, but he stated that he told the officer that the key
to the lockbox could be on the key ring. The trial court
denied Bridgett's motion to suppress, and he appealed to the
1070439
5
Court of Criminal Appeals. That court affirmed the trial
court's order. Bridgett v. State, [Ms. CR-06-1011, Nov. 2,
2007] ___ So. 2d ___ (Ala. Crim. App. 2007). Bridgett then
filed a petition for the writ of certiorari with this Court.
Discussion
Bridgett argues that the Court of Criminal Appeals erred
in affirming the trial court's order refusing to suppress the
marijuana found in the lockbox because, he says, the court
erred in concluding that the issue in this case was whether
Bridgett had voluntarily consented to the officers' use of the
key that opened the lockbox. According to Bridgett, the key
to the lockbox was illegally seized; therefore, he argues, it
is irrelevant whether he voluntarily consented to the use of
the keys to open the lockbox because, he argues, the marijuana
that was found as a result of the use of the illegally seized
keys is the fruit of the poisonous tree. Thus, Bridgett
argues, the Court of Criminal Appeals' decision affirming the
trial court's order denying his motion to suppress the
marijuana conflicts with Wong Sun v. United States, 371 U.S.
471 (1963), and Harris v. State, 568 So. 2d 421 (Ala. Crim.
App. 1990).
1070439
6
In Wong Sun, the United States Supreme Court held that a
court, when considering the admissibility of evidence obtained
as a result of illegal government action, must determine
"'whether, granting establishment of the primary illegality,
the evidence to which instant objection is made has been come
at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.'" 371 U.S. at 488 (quoting Maguire, Evidence of Guilt
221 (1959)). If the evidence is determined to be the "fruit
of the poisonous tree," then the evidence must be suppressed.
Id. The Court of Criminal Appeals applied the Wong Sun
holding in Harris, stating:
"[A]lthough the appellant consented to the police
officer's search of his trunk, this consent was
tainted by the prior illegal police action. Wong
Sun v. United States, 371 U.S. 471 (1963). ...
"'... [W]hile it is thus true that a
consent
to
search
which
fails
the
voluntariness
test
because
of
prior
illegality may just as convincingly be said
to be a fruit of the prior illegality, the
fruit of the poisonous tree doctrine also
extends to invalidate consents which are
voluntary.'"
568 So. 2d at 424.
1070439
7
The facts in the record are conflicting as to whether the
key ring holding the key to the lockbox was obtained during a
Terry v. Ohio, 392 U.S. 1 (1968), patdown search of Bridgett
or during the search of the bedroom for weapons. We need not
determine whether the key was illegally seized, however,
because, even it if was, we conclude that Bridgett's consent
to the use of the key was voluntary and that the search of the
lockbox was sufficiently purged from the original taint. Wong
Sun, supra.
The United States Court of Appeals for the Eleventh
Circuit in United States v. Delancy, 502 F.3d 1297 (11th Cir.
2007), has provided a two-part test to assist in the analysis
when a consent to search follows illegal police action,
stating:
"Under controlling case law, we are required to
conduct two separate inquiries where a consent to
search follows prior illegal activity by the police.
First, a court must determine whether the consent
was voluntary. Second, the court must determine
whether the consent, even if voluntary, requires
exclusion of the evidence found during the search
because it was the 'fruit of the poisonous tree' --
the product of an illegal entry. See United States
v. Santa, 236 F.3d 662, 676-77 (11th Cir.2000):
"'For consent given after an illegal
seizure to be valid, the Government must
prove two things: that the consent is
1070439
8
voluntary, and that the consent was not a
product of the illegal seizure. Thus, the
voluntariness
of
consent
is
only
a
threshold requirement; a voluntary consent
to search does not remove the taint of an
illegal seizure. Rather, the second
requirement
focuses
on
causation:
"whether,
granting establishment of the primary
illegality, the evidence to which instant
objection is made has been come at by
exploitation of that illegality or instead
by means sufficiently distinguishable to be
purged of the primary taint."'
"(quoting Wong Sun v. United States, 371 U.S. 471,
488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)) (citations
omitted); see also United States v. Ramirez-Chilel,
289 F.3d 744, 752 n. 9 (11th Cir.2002)('Typically,
if the ensuing search occurs after an initial
illegality, such as an illegal entry or an illegal
arrest, we must first determine whether the consent
to search was voluntary and then, whether the
consent was tainted by the initial illegality.').
"This two step approach is mandatory, and the
government bears the burden on both issues. See
United States v. Robinson, 625 F.2d 1211, 1219 (5th
Cir. 1980). ...
"As the Supreme Court observed long ago, '[w]e
need not hold that all evidence is "fruit of the
poisonous tree" simply because it would not have
come to light but for the illegal actions of the
police. Rather, the more apt question in such a
case is whether, granting establishment of the
primary illegality, the evidence to which instant
objection is made has been come at by exploitation
of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.'
Wong Sun v. United States, 371 U.S. 471, 488, 83
S.Ct. 407, 9 L.Ed.2d 441 (1963) (quotation marks
omitted). We are obliged to determine whether the
1070439
9
consent was 'sufficiently an act of free will to
purge the primary taint of the unlawful invasion,'
or, alternatively, whether the causal connection had
'become so attenuated as to dissipate the taint.'
Id. at 486-87, 83 S.Ct. 407 (quotation marks
omitted).
"This is a fact-specific question, and no single
fact is dispositive. See Brown v. Illinois, 422
U.S. 590, 603, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
...
"In Santa, we considered three factors in
determining
whether a defendant's consent was
tainted by his illegal arrest: '[1] the temporal
proximity of the seizure and the consent, [2] the
presence
of
intervening
circumstances,
and,
particularly, [3] the purpose and flagrancy of the
official misconduct.' 236 F.3d at 677.
"The
three
factors are
not
meant to be
exhaustive, and commentators have suggested others.
See Wayne R. LaFave, Search and Seizure § 8.2(d)
(4th ed. 2004)(discussing additional factors such as
'whether
the
seizure
brought
about
police
observation of the particular object which they
sought consent to search, ... whether the consent
was volunteered rather than requested by the
detaining officers, whether the arrestee was made
fully aware of the fact that he could decline to
consent and thus prevent an immediate search of the
car
or
residence,
whether
there
has
been
a
significant intervening event such as presentation
of the arrestee to a judicial officer, and whether
the police purpose underlying the illegality was to
obtain the consent' (footnotes omitted)). Moreover,
we will not allow a factor-based analysis to obscure
the underlying question, which 'generally involves
a pragmatic evaluation of the extent to which the
illegal
police
conduct caused the defendant's
response.' United States v. Bailey, 691 F.2d 1009,
1070439
10
1013 (11th Cir. 1982). Nevertheless, the factors do
provide a useful structure. ...
"1. Temporal Proximity
"The time elapsed between the illegal act and a
subject's consent to search is obviously relevant.
If only a short period of time has passed, a court
is more likely to consider the consent as a
'poisonous fruit' of the illegal act –- that is,
that the consent is tainted. Wong Sun provides an
illustration of this principle. There, the Court
suppressed statements from one defendant when they
were given almost immediately after the police broke
the door of his apartment, rushed in, and handcuffed
him. See Wong Sun, 371 U.S. at 486, 83 S.Ct. 407
('Six or seven officers had broken the door ... into
the bedroom where his wife and child were sleeping.
He had been almost immediately handcuffed and
arrested.
Under
such
circumstances
it
is
unreasonable to infer that [his] response was
sufficiently an act of free will to purge the
primary taint of the unlawful invasion.'). By
contrast, when another defendant in the same case
'had been released on his own recognizance after a
lawful arraignment, and had returned voluntarily
several days later to make the statement, [the
Court] h[e]ld that the connection between the arrest
and the statement had become so attenuated as to
dissipate the taint.' Id. at 491, 83 S.Ct. 407
(quotation marks omitted).
"There is no bright-line rule defining the
temporal factor. But, if the period of time is
extremely short, this factor weighs in favor of
exclusion. See, e.g., Santa, 236 F.3d at 666-67, 678
(observing that there had been no 'significant lapse
of time' in a case where the defendant, handcuffed
and lying on the floor, consented to a search just
two to three minutes after the police made an
illegal forced entry into his home); see also United
States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th
1070439
11
Cir. 2003)('In the present case, there was an
extremely close temporal proximity between the
illegal stop and Chanthasouxat's consent to the
search because the video tape revealed that only
three minutes elapsed between the time Officer
Carter stopped the van and Chanthasouxat consented
to a search.'). By contrast, a longer interval
obviously weighs in favor of admissibility. See,
e.g., Devier v. Zant, 3 F.3d 1445, 1459 (11th Cir.
1993)(per curiam)('Under these circumstances, we
must conclude that any taint from his detention on
December 2 had been completely attenuated by the
time of his eventual confession four days later.').
"....
"2. Intervening Circumstances
"The
second
factor
is
the
presence
of
intervening circumstances, or events that interrupt
the causal connection between the illegal act and
the possibly tainted consent or confession. See
Brown, 422 U.S. at 611, 95 S.Ct. 2254 (Powell, J.,
concurring in part)(characterizing the inquiry as
whether 'some demonstrably effective break' has
occurred); see also Taylor v. Alabama, 457 U.S. 687,
102 S.Ct. 2664, 73 L.Ed.2d 314 (1982)(discussing a
defendant who was arrested without probable cause
'in the hope that something would turn up,' and
confessed shortly thereafter without any meaningful
intervening event); United States v. Edmondson, 791
F.2d 1512, 1516 (11th Cir. 1986) (mentioning the
defendant's removal from the scene of the arrest as
an intervening circumstance).
"....
"3. Purpose and Flagrancy of Government Conduct
"The final factor is the purpose and flagrancy
of the official conduct. This factor is also the
most straightforward, and ... the most important
1070439
12
one. If the police entry had been made for the
purpose of gaining consent to conduct a full-scale
search, we would be bound to find the consent
tainted. Indeed, when the police act with the
express purpose of exploiting an illegal action, the
causation is so obvious that no real attenuation
analysis is even necessary. See Florida v. Royer,
460 U.S. 491, 505, 103 S.Ct. 1319, 75 L.Ed.2d 229
(1983)(opinion of White, J.)(finding evidence seized
after an illegal arrest tainted and omitting the
attenuation analysis entirely when the seizure was
part of 'the officers' attempt to gain [the
defendant's] consent to a search of his luggage')."
502 F. 3d at 1308-12 (footnotes omitted).
This two-step test in Delancy provides a workable means
for determining whether evidence seized from a search to which
consent is given following prior illegal activity by the
police must be excluded as the fruit of a poisonous tree; this
Court adopts that test and will now apply it to the facts of
this case.
1. Was the consent voluntary?
We consider the trial court's conclusion that Bridgett
voluntarily consented to the use by the officers of the keys
on the key ring to unlock the lockbox in light of the
principles set forth in Kennedy v. State, 640 So. 2d 22 (Ala.
Crim. App. 1993). In Kennedy, the Court of Criminal Appeals
provided a thorough discussion on the standard for determining
1070439
13
whether a defendant's consent to a search was voluntary,
stating:
"'A person may consent to a search without a
warrant and thereby waive any protection afforded by
the Fourth Amendment to his right of privacy.
Duncan v. State, 278 Ala. 145, 176 So. 2d 840
(1965). Consent to a search must be knowingly,
intelligently, and freely given.' Ex parte Wilson,
571 So. 2d 1251, 1255 (Ala. 1990). '[T]he question
whether
a
consent
to
a
search
was
in
fact
"voluntary" or was the product of duress or
coercion, express or implied, is a question of fact
to be determined from the totality of all the
circumstances.' Schneckloth v. Bustamonte, 412 U.S.
218, 227, 93 S.Ct. 2041, 2047-48, 36 L.Ed. 2d 854
(1973). 'The standard for measuring the scope of a
suspect's consent under the Fourth Amendment is that
of "objective" reasonableness -- what would the
typical reasonable person have understood by the
exchange between the officer and the suspect?'
Florida v. Jimeno, 500 U.S. 248, 249-51, 111 S.Ct.
1801, 1803-04, 114 L.Ed. 2d 297 (1991).
"This Court has recently held:
"'A search pursuant to a valid consent
is constitutionally permissible. See Ex
parte Wilson, 571 So. 2d 1251, 1255 (Ala.
1990); Hubbard v. State, 500 So. 2d 1204,
1221-22 (Ala. Cr. App.), affirmed, 500 So.
2d 1231 (Ala. 1986). "When a prosecutor
seeks to rely upon consent to justify the
lawfulness of a search, he has the burden
of proving that the consent was, in fact,
freely and voluntarily given." Bumper v.
North Carolina, 391 U.S. 543, 548, 88 S.Ct.
1788, 1792, 20 L.Ed.2d 797 (1968). See
State v. Kyles, 571 So. 2d 1283 (Ala. Cr.
App.), on return to remand, 574 So. 2d 1057
(Ala. Cr. App. 1990).
1070439
14
"'"[T]he
question
whether
a
consent to a search was in fact
'voluntary' or was the product of
duress or coercion, express or
implied, is a question of fact to
be determined from the totality
of all the circumstances."
"'Schneckloth v. Bustamonte, 412 U.S. 218,
227, 93 S.Ct. 2041, 2047-48, 36 L.Ed. 2d
854 (1973).
"'Mere submission to police authority
will not suffice for consent. Schneckloth,
412 U.S. at 233, 93 S.Ct. at 2051; Bumper
v. North Carolina, 391 U.S. at 548-49, 88
S.Ct. at 1792; Amos v. United States, 255
U.S. 313, 317, 41 S.Ct. 266, 268, 65 L.Ed.
654 (1921); Herriott v. State, 337 So. 2d
165, 169 (Ala. Cr. App.), cert. denied, 337
So. 2d 171 (Ala. 1976). While a "'display
of weapons is a coercive factor that
sharply reduces the likelihood of freely
given consent,'" 3 W. LaFave, Search and
Seizure, § 8.2(b) at 181 (2d ed. 1987), the
determination of voluntariness requires
"careful sifting of the unique facts and
circumstances of each case." Schneckloth,
412 U.S. at 233, 93 S.Ct. at 2050.
"'A show of force is a significant
factor in the voluntariness equation, but
it does not always vitiate consent to
search. See United States v. Kelley, 953
F.2d 562, 566 (9th Cir. 1992); United
States v. Phillips, 664 F.2d [971] at 1024
[(5th
Cir.
1981)];
United
States
v.
Cepulonis, 530 F.2d 238, 243-44 (1st Cir.),
cert. denied, 426 U.S. 908[, 96 S.Ct. 2231,
48 L.Ed. 2d 834] (1976); United States v.
Evans, 519 F.2d 1083 (9th Cir.), cert.
1070439
15
denied, 423 U.S. 916 [96 S.Ct. 224, 46
L.Ed.2d 145] (1975).
"'....
"'If
the
evidence
relating
to
a
consent search is in conflict, "it is the
duty of the trial court to resolve any
conflict in the testimony and not within
the province of this Court. The trial
court [is] in a better position to judge
the
demeanor
of
the
witnesses."
Hollenquest v. State, 394 So. 2d 385, 389
(Ala. Cr. App. 1980)(citations omitted),
cert. denied, 394 So. 2d 389 (Ala. 1981).
When an accused contests the police version
of the facts relating to an alleged consent
search, this "presents an issue of fact to
be resolved by the trial judge based on his
assessment of the relative credibility of
the parties; the issue will generally not
be rev[ers]ed on appeal unless the judge's
finding was clearly erroneous." 1 W.
Ringel, Searches and Seizures, Arrests and
Confessions § 9.3(a) at 9-6 (2d ed. 1992).
See United States v. Cepulonis, 530 F.2d at
243; Jordan v. State, 384 So. 2d 277 (Fla.
App. 1980)(trial court's decision as to
whether accused was consenting or was
submitting to authority would not be
disturbed
unless
clearly
erroneous),
abrogated on other grounds, Elsleger v.
State, 503 So. 2d 1367 (Fla. App. 1987).
"'....
"'We have considered the fact that the
appellant was not told he had the right to
refuse to consent to the search, and we do
not find it to be determinative here. In
Schneckloth v. Bustamonte, the Supreme
Court observed that '[w]hile knowledge of
1070439
16
the right to refuse consent is one factor
to be taken into account, the government
need not establish such knowledge as the
sine qua non of an effective consent.' 412
U.S. at 227, 93 S.Ct. at 2048. See
generally 1 Ringel § 9.2 at 9-3. The facts
of this case provide a reason to believe
that, notwithstanding the failure to inform
the appellant that he had the right to
refuse to allow the search, his consent was
nevertheless voluntary.
"'The appellant twice denied that
there were any "weapons or drugs or
anything" in the vehicle. R. 27, 28, 50.
"[A]
belief
that
nothing
personally
incriminating is to be found in the place
the police want to search [is a] factor[]
tending
to
show
that
a
consent
is
voluntary." 3 LaFave at § 8.2(h) at 206....
"'The argument that "no sane man who
denies his guilt would actually be willing
that policemen search ... for contraband
which is certain to be discovered," Higgins
v. United States, 209 F.2d 819, 820 (D.C.
Cir. 1954), has generally been rejected,
see 3 LaFave § 8.2(h) at 208, and has
specifically been rejected by this Court,
Quinn v. State, 611 So. 2d 483, 487 (Ala.
Cr. App. 1992). A defendant who believes
that there is no contraband in the place to
be searched or that it is hidden too well
to be found might well give his voluntary
consent to a search, 3 LaFave § 8.2(h) at
208 & n. 178. On the other hand, the
defendant may simply be "giving up."
"'"'[T]he pressure exerted on a
criminal by the realization that
the jig is up is far different
from the deliberate or ignorant
1070439
17
violation of personal right that
renders
apparent
consent
ineffective.' [Gorman v. United
States, 380 F.2d 158, 165 (1st
Cir. 1967)]. The soundness of
that principle is dramatically
revealed in North Carolina v.
Alford, [400 U.S. 25, 91 S.Ct.
160, 27 L.Ed. 2d 162 (1970)],
where the Court held that a
defendant might voluntarily plead
guilty even though he claimed to
believe he was innocent. If at
the
time
that
a
particular
question is asked there is no
agreeable answer, the fact that
the
answer
chosen
is
not
a
pleasant
one
does
not
mean
necessarily
that
it
was
not
voluntarily
selected.
The
alternative might have seemed
worse.
"'"The
application
of
that
principle to consent to search is
particularly apt. A defendant may
believe that search is ultimately
inevitable whether he consents or
not. In such circumstances a
suspect might well feel he is
better off to consent than to
oppose."
"'Leavitt v. Howard, 462 F.2d 992, 997 (1st
Cir.) (footnotes omitted), cert. denied,
409 U.S. 884 (1972), quoted in United
States v. Cepulonis, 530 F.2d at 244; 3
LaFave at § 8.2(h) at 208-09. "Bowing to
events, even if one is not happy with them,
is not the same thing as being coerced."
State v. Lyons, 458 P.2d 30, 32 (Wash.
1969).'
1070439
18
"Martinez v. State, 624 So. 2d 711 (Ala. Cr. App.
1993).
"'When
the
evidence
pertaining
to
the
voluntariness of a consent is conflicting, the trial
court is in the best position to determine consent
or lack thereof.... On appeal, this court will not
disturb the trial court's finding unless we are
convinced that the conclusion is palpably contrary
to the weight of the evidence.' Daniels v. State,
534 So. 2d 628, 654 (Ala. Cr. App. 1985), affirmed,
534 So. 2d 656 (Ala. 1986), cert. denied, 479 U.S.
1040, 107 S.Ct. 898, 93 L.Ed. 2d 850 (1987).
'[C]onflicting evidence given at [a] suppression
hearing presents a credibility choice for the trial
court.' Atwell v. State, 594 So. 2d 202, 212 (Ala.
Cr. App. 1991), cert. denied, 594 So. 2d 214 (Ala.
1992).
"'[W]hen conflicting evidence is presented
on the issue of the voluntariness of a
consent to search and the trial judge finds
that the consent was voluntarily given,
great weight must be given his judgment.
This finding will not be disturbed on
appeal unless the appellate court is
convinced that the conclusion is palpably
contrary to the weight of the evidence.
Even where there is credible testimony to
the contrary, if the evidence is fairly
capable of supporting the inference that
the rules of freedom and voluntariness were
observed, the ruling of the trial judge
need only be supported by substantial
evidence and not to a moral certainty.'
"Weatherford v. State, 369 So. 2d 863, 871 (Ala. Cr.
App.), cert. denied, 369 So. 2d 873 (Ala.), cert.
denied, 444 U.S. 867, 100 S.Ct. 141, 62 L.Ed. 2d 91
(1979).
1070439
19
"'Although
this
finding
was
made
on
conflicting evidence, the trial court's
"credibility
choices
at
suppression
hearings are binding on this court."
United States v. Aldridge, 719 F.2d 368,
373 (11th Cir. 1983). "The trial court's
finding [of the voluntariness of the
consent to search] will not be disturbed on
appeal unless the appellate court is
convinced that the conclusion is palpably
contrary to the weight of the evidence."
Coots v. State, 434 So. 2d 864, 867 (Ala.
Cr. App. 1983). We indulge a presumption
that the trial court properly ruled on the
weight and probative force of the evidence.
The trial judge was in a better position to
judge thereof than this Court[,] having
seen
the
witnesses,
observed
their
demeanor, and heard them testify. Sullivan
v. State, 23 Ala. App. 464, 465, 127 So.
256,
257
(1930).
In
reviewing
the
correctness of the trial court's ruling on
a motion to suppress, this Court makes all
the reasonable inferences and credibility
choices supportive of the decision of the
trial court. Additionally, if the trial
court's ruling is correct for any reason,
it will not be reversed because the trial
court assigned the wrong reason. Harnage
v. State, 290 Ala. 142, 144, 274 So. 2d
352, 354 (1972).'
"Bradley v. State, 494 So. 2d 750, 760-61 (Ala. Cr.
App. 1985), affirmed, 494 So. 2d 772 (Ala. 1986),
cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94
L.Ed.2d 699 (1987)."
640 So. 2d at 24-26.
Here, Killingsworth testified that Bridgett gave him
permission to use the keys on the key ring to try to unlock
1070439
20
the lockbox. According to Killingsworth, when he asked
Bridgett, who was handcuffed and seated in a police car, for
permission to use the keys to try to open the lockbox,
Bridgett consented. Bridgett, on the other hand, testified
that he did not give the officers permission to search
anything. The following exchange occurred during the State's
cross-examination of Bridgett:
"[Prosecutor]: You heard Investigator Killingsworth
say you were asked, 'Look, can we use the keys on
the gun locks and the [lockbox].' Were you asked
that?
"[Bridgett]: I was asked that, but I never seen the
keys.
"[Prosecutor]: You were asked that. Okay. We're
making some progress. What did you say in response
to that?
"[Bridgett]: I said, 'Well I don't own keys to the
locks.' I was like but –- 'I mean, the gun locks,
I don't own any keys to any gun lock because I don't
own any guns.' I told them at that time the keys to
the lockbox could be on there because me and her
both use those keys.
"[Prosecutor]: But they asked can we use the keys.
And what did you say?
"[Bridgett]: I said the keys that are to the locks,
they're not going to be on that ring. I told them
no.
"[Prosecutor]: You told them no they can't search or
no, the keys aren't going to be there?
1070439
21
"[Bridgett]: No, they can't search because the keys,
I don't own any gun locks.
"....
"[Bridgett]: I told them at that time I didn't own
any guns or any gun locks. The [lockbox] was never
brought up at that time.
"[Prosecutor]: You're saying –- when was the
[lockbox] brought up?
"[Bridgett]: I didn't know about the [lockbox] until
probably an hour later. I seen them sit the
[lockbox] on top of a hood of a police cruiser, and
at this point they went through with flashlights and
just took everything out basically and scattered it
all over the car. I don't know what was in the box
or what had been placed in it or what had been taken
out of the box."
As defense counsel admitted during his final argument at
the suppression hearing, conflicting evidence was presented as
to whether Bridgett consented to the use of the keys on the
key ring to unlock the lockbox. This Court accords deference
to the trial court's credibility choices. Substantial
evidence was presented from which the trial court could
conclude that Bridgett voluntarily consented to the use of the
keys to search the lockbox.
2. Was the consent tainted by illegal police conduct?
Now, we must determine whether Bridgett's consent was
tainted by the alleged illegal seizure of the keys, i.e.,
1070439
22
whether Bridgett's consent to the use of the keys was a
product of the alleged illegal seizure of the keys. Applying
the three factors set forth by the Eleventh Circuit Court of
Appeals in Delancy, we first consider "the temporal proximity
of the seizure and the consent." The record is unclear
whether the keys were seized when the officers first entered
the house and patted Bridgett down for weapons, when they
searched Bridgett after they learned that guns were in the
upstairs bedroom where Bridgett was packing his belongings, or
at some other time. Indeed, Bridgett testified that he did
not know when the keys were seized. However, our reading of
the testimony indicates that the keys were seized before the
officers located the lockbox and that at least one hour had
passed from the time Bridgett was placed in the police car and
the time Killingsworth approached him about using the keys to
open the lockbox. Because it appears that the request for
Bridgett's consent to use the keys did not immediately follow
the alleged illegal seizure of the keys, the factor of timing
weighs in favor of admitting into evidence the marijuana found
in the lockbox. See Delancy.
1070439
23
Next, we consider "intervening circumstances." Nothing
in the testimony indicates that when the officers seized the
keys the keys had some overt importance. Circumstances that
appear important are: Bridgett, instead of leaving the
residence immediately after the police arrived, asked to
retrieve his belongings from an upstairs bedroom; while
Bridgett was packing, the officers learned that there were
guns in the bedroom; the officers then immediately removed
Bridgett from the bedroom, and the search of the bedroom
yielded an automatic handgun, a rifle, and a lockbox. These
circumstances indicate that the keys obtained no significance
until after the gun locks and lockbox were discovered. Thus,
the intervening circumstance of the officers learning about
and then locating the guns and the lockbox in the bedroom
where the officers had permitted Bridgett to go to pack his
belongings made the earlier seizure of the keys, which at that
time appeared innocuous, important. Nothing indicates that
the seizure of the keys prompted the search of the bedroom for
weapons or that the seizure of the keys was a consequence of
finding the lockbox and the gun locks. Therefore, these
circumstances attenuate any taint from the seizure of the
1070439
24
keys. Consequently, this factor does not weigh toward
suppressing the marijuana.
Last and most important, we consider "the purpose and
flagrancy of the official misconduct." Nothing in the record
indicates that the police purpose underlying the seizure of
the keys was to obtain Bridgett's consent to use the keys to
open the lockbox. The record indicates that the officers'
only purpose in seizing the keys was to ensure that the keys
were not a weapon that could be used to harm the officers or
the other individuals in the house. Bridgett did not argue at
the hearing or on appeal that the stated purpose for seizing
the keys was a subterfuge or that the officers' conduct was
flagrant. Therefore, this factor does not weigh in favor of
suppressing the marijuana.
Taking all three factors in consideration, we conclude
that the alleged illegal seizure of the keys did not taint
Bridgett's consent and that the denial of Bridgett's motion to
suppress was proper. As the United States Supreme Court
stated in Hudson v. Michigan, 547 U.S. 586 (2006):
"Suppression of evidence, however, has always
been our last resort, not our first impulse. The
exclusionary rule generates 'substantial social
costs,' United States v. Leon, 468 U.S. 897, 907,
1070439
25
104 S.Ct. 3405 (1984), which sometimes include
setting the guilty free and the dangerous at large.
We
have
therefore
been
'cautio[us]
against
expanding' it, Colorado v. Connelly, 479 U.S. 157,
166, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986), and 'have
repeatedly emphasized that the rule's "costly toll"
upon truth-seeking and law enforcement objectives
presents a high obstacle for those urging [its]
application,' Pennsylvania Bd. of Probation and
Parole v. Scott, 524 U.S. 357, 364-365, 118 S.Ct.
2014, 141 L.Ed. 2d 344 (1998)(citation omitted). We
have rejected '[i]ndiscriminate application' of the
rule, Leon, supra, at 908, 104 S.Ct. 3405, and have
held it to be applicable only 'where its remedial
objectives are thought most efficaciously served,'
United States v. Calandra, 414 U.S. 338, 348, 94
S.Ct. 613, 38 L.Ed.2d 561 (1974) -- that is, 'where
its deterrence benefits outweigh its "substantial
social costs,"' Scott, supra, at 363, 118 S.Ct. 2014
(quoting Leon, supra, at 907, 104 S.Ct. 3405)."
547 U.S. at 591.
Conclusion
The trial court properly denied Bridgett's motion to
suppress the marijuana seized from the lockbox, and the
decision of the Court of Criminal Appeals affirming the trial
court's order does not conflict with Wong Sun and Harris. The
judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
Cobb, C.J., and See, Lyons, Woodall, Smith, Bolin,
Parker, and Murdock, JJ., concur. | June 27, 2008 |
f08da8ba-22d4-42d2-971b-35d2f0f37866 | Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Thomas Walter Warren Jr v. State of Alabama) | N/A | 1051434 | Alabama | Alabama Supreme Court | Rel: 3/28/2008
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, 2007-2008
____________________
1051434
____________________
Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Thomas Walter Warren, Jr.
v.
State of Alabama)
(Jefferson Circuit Court, CC-04-4372 and CC-04-4373;
Court of Criminal Appeals, CR-04-2100)
PARKER, Justice.
1051434
2
Thomas Walter Warren, Jr., was convicted, following a
jury trial, of first-degree robbery and first-degree burglary.
He appealed, and the Court of Criminal Appeals reversed his
convictions and remanded the case for a new trial on the basis
that the trial court erred in refusing to instruct the jury on
the lesser-included offense of third-degree robbery. Warren v.
State, [Ms. CR-04-2100, April 26, 2006] __ So. 2d __ (Ala.
Crim. App. 2006). We granted the State's petition for
certiorari review to determine whether the Court of Criminal
Appeals' decision conflicts with its decisions in Saffold v.
State, 951 So. 2d 777, 780 (Ala. Crim. App. 2006), and Welch
v. State, 630 So. 2d 145, 146-47 (Ala. Crim. App. 1993). We
conclude that its decision in this case does conflict with
Saffold and Welch, and we reverse the judgment of the Court
of Criminal Appeals.
I. Background
Alma Knox testified that on June 10, 2004, she was in her
residence watching an Atlanta Braves baseball game on
television. Her 14-year-old grandson was mowing the lawn.
The front door of the residence was locked; however, the back
door had been left unlocked so that her grandson could come
1051434
3
back in. While mowing the lawn, her grandson saw a man later
determined to be Warren walk from the boat shed located on the
property to the residence. Knox's grandson was not concerned
because he assumed that Knox knew the man.
Knox testified that she looked up to find Warren standing
a few feet away from where she was sitting. Warren then
demanded that Knox give him the keys to her automobile and
threatened to kill her if she did not comply. Knox said that
she responded, "You're kidding me." She then testified that
Warren raised a large boat anchor he was holding in his right
hand. Again, he demanded the keys to the automobile and
threatened to kill Knox. Frightened that Warren would hit her
with the anchor, Knox got out of her chair and gave Warren the
spare keys to her automobile.
Knox then followed Warren into the kitchen, where he
demanded money. Knox told Warren that she was widowed and
that she did not have any money. According to Knox, while
holding the anchor in his hand, Warren took some food, a
lighter, and some cigarettes from the kitchen. Before
leaving, Warren told Knox that if she telephoned the police,
he would return in less than an hour to kill her. He then
1051434
4
left in Knox's 1991 dark blue automobile which had a 150-foot
garden hose in the trunk.
Warren's testimony was quite different. He testified at
trial that on June 9, 2004, he had been riding in an
automobile with another individual who dropped him off near
Knox's residence. He testified that he slept in the woods
that evening, and the next day, assuming that no one was home,
he decided to enter Knox's residence and take the keys to the
automobile that was parked outside. When he entered the
residence, Warren said, he heard the television. He stopped
in the kitchen to take some food and saw Knox sitting in her
recliner watching television. He says that he approached Knox
and asked if he could have the keys to her automobile. Warren
testified that he did not have a weapon and that he did not
threaten Knox in any way. According to Warren, he told Knox
that he was not there to hurt her and that he only wanted the
keys to her automobile.
Warren testified that Knox got up from her recliner and
walked past him to retrieve a set of keys. She handed him the
keys, and he left in the automobile. Warren testified that he
told Knox that she could retrieve her automobile later that
1051434
5
day from the parking lot of the Winn-Dixie grocery store.
Warren later wrecked the car as he tried to elude a police
vehicle that was pursuing him.. He stated that he had traded
the garden hose for $10 worth of crack cocaine.
The jury found Warren guilty of first-degree robbery and
first-degree burglary. The Court of Criminal Appeals reversed
Warren's conviction, stating that because there was some
evidence to support Warren's claim that he was guilty of only
the lesser-included offense of third-degree robbery, the
refusal of his requested jury instruction on the lesser-
included offense constitutes reversible error. Judge Baschab
dissented, with an opinion. We granted the State's petition
for the writ of certiorari to determine whether the Court of
Criminal Appeals' decision conflicts with its prior cases or
with the cases of this Court.
II. Analysis
This Court reviews legal issues, such as this one, de
novo. In Clark v. State, 896 So. 2d 584, 641 (Ala. Crim. App.
2000), the Court of Criminal Appeals addressed when it is
appropriate to give a jury a charge on a lesser-included
offense:
1051434
6
"'A person accused of the greater offense has a
right to have the court charge on lesser included
offenses when there is a reasonable theory from the
evidence supporting those lesser included offenses.'
MacEwan v. State, 701 So. 2d 66, 69 (Ala. Crim. App.
1997). An accused has the right to have the jury
charged on '"any material hypothesis which the
evidence in his favor tends to establish."' Ex parte
Stork, 475 So. 2d 623, 624 (Ala. 1985). '[E]very
accused is entitled to have charges given, which
would not be misleading, which correctly state the
law of his case, and which are supported by any
evidence, however[] weak, insufficient, or doubtful
in credibility,' Ex parte Chavers, 361 So. 2d 1106,
1107 (Ala. 1978), 'even if the evidence supporting
the charge is offered by the State.' Ex parte Myers,
699 So. 2d 1285, 1290-91 (Ala. 1997), cert. denied,
522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed. 2d 648
(1998). However, '[t]he court shall not charge the
jury with respect to an included offense unless
there is a rational basis for a verdict convicting
the
defendant
of
the
included
offense.'
§
13A-1-9(b), Ala. Code 1975. 'The basis of a charge
on a lesser-included offense must be derived from
the evidence presented at trial and cannot be based
on speculation or conjecture.' Broadnax v. State,
825 So. 2d 134, 200 (Ala. Crim. App. 2000), aff'd,
825 So. 2d 233 (Ala. 2001), cert. denied, 536 U.S.
964, 122 S.Ct. 2675, 153 L.Ed. 2d 847 (2002). '"A
court may properly refuse to charge on a lesser
included offense only when (1) it is clear to the
judicial mind that there is no evidence tending to
bring the offense within the definition of the
lesser offense, or (2) the requested charge would
have a tendency to mislead or confuse the jury."'
Williams v. State, 675 So. 2d 537, 540-41 (Ala.
Crim. App. 1996), quoting Anderson v. State, 507 So.
2d 580, 582 (Ala. Crim. App. 1987)."
Robbery in the first degree is defined in § 13A-8-41,
Ala. Code 1975, as follows:
1051434
7
"(a) A person commits the crime of robbery in
the first degree if he violates Section 13A-8-43 and
he:
"(1) Is armed with a deadly weapon or
dangerous instrument ...."
Robbery in the third degree is defined in § 13A-8-43,
Ala. Code 1975, as follows:
"(a) A person commits the crime of robbery in
the third degree if in the course of committing a
theft he:
"(1) Uses force against the person of
the owner or any person present with intent
to overcome his physical resistance or
physical power of resistance; or
"(2) Threatens the imminent use of
force against the person of the owner or
any person present with intent to compel
acquiescence to the taking of or escaping
with the property."
The definitions contained in § 13A-8-1, Ala. Code 1975,
are applicable to §§ 13A-8-41 and 13A-8-43, the statutes
defining the offenses of robbery in the first degree and
robbery in the third degree, respectively. Those definitions
were applied in Saffold v. State, supra, a case the State
contends conflicts with the decision of the Court of Criminal
Appeals here:
"Section 13A-8-1(13), Ala. Code 1975, which is
applicable to § 13A-8-43, see § 13A-8-40(a), Ala.
1051434
8
Code 1975, defines 'threat' in part as '[a] menace,
however communicated, to ... [c]ause physical harm
to the person threatened or to any other person.'
'Menace' is defined in the Compact Oxford English
Dictionary 1062 (2d ed. 1994) in part as '[a]
declaration or indication of hostile intention, or
of
a
probable
evil
or
catastrophe';
Merriam-Webster's Collegiate Dictionary 774 (11th
ed. 2003) defines 'menace' in part as 'a show of
intention to inflict harm.'"
Saffold v. State, 951 So. 2d at 780 (emphasis omitted).
In Welch v. State, supra, a case which the State also
contends conflicts with the Court of Criminal Appeals' holding
here, the Court of Criminal Appeals stated:
"'A person commits the crime of robbery in the
third degree if in the course of committing a theft
he: (1) Uses force against the person of the owner
... with intent to overcome his physical resistance
or physical power of resistance; or (2) Threatens
the imminent use of force against the person of the
owner ... with intent to compel acquiescence to the
taking of or escaping with the property.' Ala. Code
1975, § 13A-8-43(a). At the time of the taking, the
victim had realized that the appellant did not have
a gun, although he had previously told her that he
did. We note, however, that 'the State does not have
to prove that the defendant actually had a gun in
order to sustain a conviction of first degree
robbery.' Kent v. State, 504 So. 2d 373, 376 (Ala.
Cr. App. 1987) (emphasis added); Miller v. State,
431 So. 2d 586, 592 (Ala. Cr. App. 1983). In this
case, the only reasonable conclusion is that 'the
words and actions of the appellant caused the victim
to part unwillingly with [her] property because of
fear of injury to [her] person by the appellant.'
Watson v. State, 389 So. 2d 961, 965 (Ala. Cr. App.
1980), overruled on other grounds, Steeley v. City
1051434
9
of Gadsden, 533 So. 2d 671 (Ala. Cr. App. 1988).
This evidence was clearly sufficient to support the
conviction for third degree robbery."
630 So. 2d at 146-47.
The per curiam opinion of the Court of Criminal Appeals
states:
"In the instant case, the jury heard evidence that
arguably supported the lesser-included offense of
third-degree robbery. Warren testified at trial
that he did not threaten Knox. He also testified
that he was not armed with a boat anchor. This
evidence went toward rebutting the presumption that
Warren was armed and created a question of fact for
the jury as to whether he should be convicted of
first-degree robbery or the lesser-included offense
of third-degree robbery."
__ So. 2d at __ (emphasis added).
In Ex parte Hannah, 527 So. 2d 675, 677 (Ala. 1998), this
Court stated:
"As [Chavers v. State, 361 So. 2d 1106 (Ala. 1978),]
holds, a court may properly refuse to charge on
lesser included offenses when it is clear to the
judicial mind 'that there is no evidence tending to
bring the offense within the definition of the
lesser offense.'"
In Ex parte Hannah, this Court found that the defendant
presented evidence at trial denying that a robbery of any kind
had occurred and that in order for the jury to reach the
conclusion that the lesser offense of robbery in the second
1051434
10
degree had occurred, it would have had to presume that
witnesses for both the petitioner and for the prosecution were
lying. 527 So. 2d at 677.
"It logically follows, we think, that where the
evidence permits no reasonable conclusion other than
that defendant is guilty of robbery in the first
degree as expressly charged or not guilty of any
offense whatever, charges as to robbery in the
second or robbery in the third degree should not be
given. The trial court was correct in limiting its
oral charge accordingly."
Richburg v. State, 416 So. 2d 1079, 1082 (Ala. Crim. App.
1982).
If Warren's entire testimony was to be believed, then he
would not be guilty of any kind of robbery because he neither
had a weapon nor made a threat. The only way the jury could
convict Warren of third-degree robbery was if the jury
believed that both Knox and Warren had lied and then cobble
together various elements of their contrasting testimony to
reach a compromise verdict. In other words, a conviction for
third-degree robbery would require the jury to believe the
victim's testimony that Warren threatened her and disbelieve
his testimony that he did not threaten her, and to disbelieve
her testimony that he had an anchor and believe his testimony
1051434
11
that he did not. This very closely resembles the scenario in
Ex parte Hannah.
An instruction on third-degree robbery was not required
under the facts here. The trial court did not err when it
failed to instruct the jury on the lesser-included offense of
robbery in the third degree.
III. Conclusion
We, therefore, reverse the judgment of the Court of
Criminal Appeals on the ground that an instruction on third-
degree robbery as a lesser offense included within the offense
of first-degree robbery was not required, and we remand this
case to that court for proceedings consistent this opinion.
REVERSED AND REMANDED.
See, Lyons, Woodall, Stuart, Smith, Bolin, and Murdock,
JJ., concur.
Cobb, C.J., recuses herself. | March 28, 2008 |
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