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21c61ff9-3ce7-4ed7-9c03-5e2748b2b4b0 | Weems v. Long et al. | N/A | 1190369 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
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, 2020-2021
____________________
1190369
____________________
Terry Weems, as the personal representative of the Estate of
Terry Wallace Sutherland, deceased
v.
Angela Long and Gary Sutherland
Appeal from Winston Probate Court
(No. 4336)
SHAW, Justice.
Terry Weems, as the personal representative of the estate of Terry
Wallace Sutherland ("Terry"), deceased, the proponent of what is
1190369
purported to be the will of Terry's mother, Gladys Elizabeth Stidham
Sutherland ("Elizabeth"), appeals a judgment entered by the Winston
Probate Court in favor of Terry's siblings, Angela Long and Gary
Sutherland, who contested that purported will. For the reasons addressed
below, we dismiss the appeal.
Facts and Procedural History
In March 2016, Elizabeth died. A month after her death, Angela filed
a petition in the Winston Probate Court to admit to probate a will that her
mother had executed in 2002 ("the 2002 will"). That will divided
Elizabeth's estate equally among her three children -- Angela, Terry, and
Gary -- and also named Angela as the executor of her estate.
Shortly thereafter, Terry petitioned the probate court to enter an
order admitting a different will to probate that, he said, Elizabeth had
executed in 2013 ("the 2013 will"); he also requested that the probate
court issue letters testamentary to him as the executor of Elizabeth's
estate. That will revoked "all prior wills and codicils" and named Terry as
the executor of Elizabeth's estate. According to Terry, because the 2013
will expressly revoked "all prior wills and codicils," including the 2002
2
1190369
will, the 2013 will was the only valid will that could be admitted to
probate.
In August 2016, Angela petitioned the Winston Circuit Court,
pursuant to § 12-11-41, Ala. Code 1975, to remove the "administration" of
Elizabeth's estate from the probate court. That same day, the circuit court
issued an order granting the removal. In October 2017, after determining
that its jurisdiction had not been properly invoked, the circuit court issued
an order remanding the proceedings relating to Elizabeth's estate back to
the probate court. Five days later, the probate court entered an order
acknowledging receipt of the proceedings from the circuit court.
Shortly thereafter, in November 2017, Angela filed a document in
the probate court labeled: "Contest of the Purported Will Offered for
Probate by Terry Sutherland and Motion to Transfer to Circuit Court."
Angela averred that the 2013 will was procured and executed as a result
of undue influence by Terry. She also requested that the probate court
transfer her will contest to the circuit court and add both Terry and Gary
as "proper parties to this cause." Despite Angela's clear transfer request,
the probate court never entered an order transferring Angela's contest of
3
1190369
the 2013 will to the circuit court. It did, however, continue to take action
in the proceedings relating to Elizabeth's estate.
In September 2018, Terry died and Terry Weems was appointed to
be the personal representative of his estate. At the time of Terry's death,
neither the 2002 will nor the 2013 will had been admitted to probate and
letters testamentary had not been issued.
Following several months of additional filings, in April 2019, Angela
withdrew her transfer request. Two hearings were held in the probate
court in July and October 2019; after receiving testimony and evidence
from the parties, the probate court issued an order in which it found that
the procurement and execution of the 2013 will was unduly influenced by
Terry. It also admitted the 2002 will to probate and issued letters
testamentary to Angela. Thereafter, Weems appealed to this Court.
Discussion
Although no party to the appeal challenges the probate court's
jurisdiction to render the judgment in the present case, "the absence of
subject-matter jurisdiction cannot be waived, and it is the duty of an
appellate court to notice the absence of subject-matter jurisdiction ex mero
4
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motu." McElroy v. McElroy, 254 So. 3d 872, 875 (Ala. 2017). Under
Alabama law, the probate court has general and original jurisdiction over
matters involving the administration of estates and the probating of wills.
See Ala. Const. 1901 (Off. Recomp.), art. VI, § 144; and § 12-13-1, Ala.
Code 1975. When a party files a will contest, that contest either may be
initiated in the probate court pursuant to § 43-8-190, Ala. Code 1975, if
the will has not yet been admitted to probate, or may be initiated in the
circuit court pursuant to § 43-8-199, Ala. Code 1975, within six months
after the will has been admitted to probate.
Section 43-8-190 which is applicable in this case because Angela's
contest of the 2013 will was filed before any will had been admitted to
probate, provides as follows:
"A will, before the probate thereof, may be contested by
any person interested therein, or by any person, who, if the
testator had died intestate, would have been an heir or
distributee of his estate, by filing in the court where it is
offered for probate allegations in writing that the will was not
duly executed, or of the unsoundness of mind of the testator,
or of any other valid objections thereto; and thereupon an issue
must be made up, under the direction of the court, between the
person making the application, as plaintiff, and the person
contesting the validity of the will, as defendant; and such issue
must, on application of either party, be tried by a jury."
5
1190369
There is no dispute that Angela is a "person interested" in the 2013
will for purposes of invoking § 43-8-190 or that the contest did not
otherwise comply with that Code section. Thus, the filing of her contest in
the probate court was proper pursuant to that Code section. Angela
simultaneously filed with her will contest a request to have the contest
transferred to the circuit court. Section 43-8-198, Ala. Code 1975, allows
a party to seek a transfer of a will contest from the probate court to the
circuit court and provides, in pertinent part:
"Upon the demand of any party to the contest, made in
writing at the time of filing the initial pleading, the probate
court, or the judge thereof, must enter an order transferring
the contest to the circuit court of the county in which the
contest is made, and must certify all papers and documents
pertaining to the contest to the clerk of the circuit court, and
the case shall be docketed by the clerk of the circuit court and
a special session of said court may be called for the trial of said
contest or, said contest may be tried by said circuit court at
any special or regular session of said court."
(Emphasis added.) For purposes of § 43-8-198, Angela, as the contestant,
was a "party to the contest," and her request to transfer was "made in
writing at the time of filing the initial pleading," that is, in a pleading
contesting the 2013 will. See Kaller ex rel. Conway v. Rigdon, 480 So. 2d
6
1190369
536, 539 (Ala. 1985) ("The 'initial pleading' for the contestant in a will
contest is the filing of the contest itself in the probate court.").
Alabama caselaw states:
" '[O]nce a will contestant seeking to remove the contest
pursuant to § 43-8-198 makes a prima facie showing that he or
she is a person described in § 43-8-190[, Ala. Code 1975, which
pertains to who may contest a will] as one "interested therein,"
the probate court "must enter an order transferring the contest
to the circuit court." ' [Ex parte McLendon,] 824 So. 2d [700]
at 705 [(Ala. 2001)] (quoting § 43-8-198; emphasis added in
McLendon). Just as a court lacking subject-matter jurisdiction
has no authority to do anything other than enter a judgment
of dismissal, see Cadle Co. v. Shabani, 4 So. 3d 460, 463 (Ala.
2008), a probate court confronted with a proper and timely
transfer demand accompanying a will contest can do nothing
but comply with the mandate of the legislature and refer the
contest to the appropriate circuit court. See Summerhill v.
Craft, 425 So. 2d 1055, 1056 [(Ala. 1982)] (construing Ala.
Code 1975, § 43-1-78, which was repealed and was replaced by
§ 43-8-198). Therefore ... the filing of the [request to transfer]
triggered a mandatory duty on the part of the probate court to
transfer the contest to the circuit court forthwith, and without
further action touching on the validity of the will submitted by
the proponent ...."
Hodges v. Hodges, 72 So. 3d 687, 691 (Ala. Civ. App. 2011). Thus, once a
party files a proper demand for transfer of a will contest to the circuit
court, the probate court is required to enter a written order transferring
the will contest, see § 43-8-198, and the probate court has no authority to
7
1190369
do anything other than timely refer the contest to the appropriate circuit
court.
After receiving Angela's proper and timely transfer demand with her
will contest, the probate court issued no order of transfer and continued
to take action in the case, including holding a hearing and issuing an
order concluding that the 2013 will was the product of undue influence.
Because the probate court was required to transfer the contest after the
demand to transfer was made, it had no jurisdiction to hold a hearing or
to issue its order. See Summerhill v. Craft, 425 So. 2d 1055 (Ala. 1982)
(holding that, because the probate court was required to transfer a will
contest to the circuit court after a demand to transfer was made, the
probate court had no jurisdiction to hold a hearing to probate the will or
to issue its order that the will was duly proved and, thus, that the order
was void). "Because the probate court lacked jurisdiction in this case, its
judgment is void. A void judgment will not support an appeal. It is this
Court's obligation to vacate such a judgment and dismiss the appeal."
Russell v. Fuqua, 176 So. 3d 1224, 1229 (Ala. 2015) (internal citations and
footnote omitted).
8
1190369
JUDGMENT VACATED; APPEAL DISMISSED.
Parker, C.J., and Bryan, Mendheim, and Mitchell, JJ., concur.
9 | April 16, 2021 |
fbef02ed-da9f-45a3-8aa9-7b604c6daa6e | Rondini v. Bunn | N/A | 1190439 | Alabama | Alabama Supreme Court | REL: May 7, 2021
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, 2020-2021
____________________
1190439
____________________
Michael W. Rondini, as personal representative of the Estate of
Megan Rondini, deceased
v.
Terry J. Bunn, Jr.
Certified Question from the United States District Court for the
Northern District of Alabama, Southern Division
(7:17-cv-1114-RDP)
MITCHELL, Justice.
1190439
This case involves a wrongful-death claim filed by Michael W.
Rondini ("Rondini"), as personal representative of the estate of Megan
Rondini ("Megan"), to recover damages for the death of his daughter
Megan, who committed suicide almost eight months after she was
allegedly sexually assaulted while enrolled as a student at the University
of Alabama. Rondini sued Megan's alleged assailant, Terry J. Bunn, Jr.,
in the United States District Court for the Northern District of Alabama,
Southern Division ("the federal court"), claiming that Bunn's alleged
sexual assault and false imprisonment of Megan proximately caused her
death. After Bunn moved for summary judgment, the federal court
concluded that it would be prudent for this Court to weigh in on whether
Rondini's wrongful-death claim was viable under Alabama law.
In accordance with Rule 18, Ala. R. App. P., the federal court
certified the following question of law for this Court's review:
"Whether a decedent's suicide, which occurs several
months (in this case, nearly eight months) after a defendant's
intentional tort (i.e., sexual assault and/or outrage) is a
superseding cause breaking the chain of causation between the
intentional tort and the decedent's death?"
2
1190439
We now answer that question as follows: The suicide of a person who was
sexually assaulted does not constitute a superseding cause that, as a
matter of law, breaks the chain of causation between the sexual assault
and the victim's death so as to absolve the alleged assailant of liability.
Facts and Procedural History
In its certification to this Court, the federal court provided the
following background information:
"On July 1, 2015, 20-year-old [Megan] met [Bunn], a
34-year-old man, at a Tuscaloosa pub. Megan left the pub with
[Bunn] and they proceeded to his house in Cottondale,
Alabama. While at [Bunn's] house, Megan claimed Bunn
falsely imprisoned and sexually assaulted her. Bunn denies
Megan's claim.
"After Megan complained of his conduct, the police
investigated. Bunn initially told the police that Megan was
not at his house on the night of July 1. After consulting with
his attorney, however, he admitted Megan was there. He also
admitted they had sex, but he claimed that it was consensual.
The court has determined that what occurred on the night of
July 1 at Bunn’s house is a question for a jury to resolve."
After the alleged sexual assault, Megan was treated by a therapist,
who diagnosed her with post-traumatic stress disorder ("PTSD") and
anxiety stemming from PTSD. She resumed attending classes that fall
3
1190439
but eventually withdrew from the University of Alabama and returned to
her parents' home in Austin, Texas, where she sought additional
counseling from other health-care providers who similarly concluded that
she was suffering from PTSD and anxiety, as well as depression.
In early 2016, Megan enrolled at Southern Methodist University
("SMU") in Dallas. She met with a local psychiatrist after moving to
Dallas and eventually sought counseling from the SMU health clinic. An
intake form she completed at the SMU health clinic on February 24, 2016,
indicates that she was experiencing suicidal thoughts and had a history
of PTSD, anxiety, and depression stemming from a sexual assault that
had occurred the previous summer. Two days later, on February 26, 2016,
Megan committed suicide.
Rondini sued Bunn in the federal court, seeking relief under
Alabama's wrongful-death statute, § 6-5-410, Ala. Code 1975, which
authorizes an action and the recovery of damages against a person whose
"wrongful act, omission, or negligence" causes the death of another person.
§ 6-5-410(a). Rondini alleged in the operative complaint (1) that "Bunn
unlawfully and intentionally detained and imprisoned Megan" and (2) that
4
1190439
Bunn "forcefully and intentionally raped Megan." Rondini further alleged
that "Megan's death was the direct and proximate result of [those]
intentional and malicious actions."
Bunn denied the allegations of false imprisonment and sexual
assault. He further asked the federal court to dismiss Rondini's wrongful-
death claim, arguing, among other things, that Megan's suicide was an
intervening or superseding cause that broke the causal connection
between his alleged wrongful actions and her death.1 Citing Prill v.
Marrone, 23 So. 3d 1 (Ala. 2009), and Gilmore v. Shell Oil Co., 613 So. 2d
1272 (Ala. 1993), the federal court denied Bunn's motion, stating that
those cases stand only for the principle that suicide is a superseding cause
that breaks the chain of causation flowing from a defendant's negligent
actions -- no Alabama court had extended that principle to wrongful-death
claims stemming from intentional torts committed against an individual
who later commits suicide.
1There is no functional distinction between the terms "intervening
cause" and "superseding cause" as they have been used by the federal
court and the parties in this case.
5
1190439
About two years later, Bunn moved for summary judgment. In that
motion, he renewed his argument that Megan's suicide was a superseding
cause that defeated Rondini's wrongful-death claim. After reviewing the
evidence and concluding that Rondini had submitted substantial evidence
to support the false-imprisonment and sexual-assault allegations
underpinning his wrongful-death claim, the federal court again considered
the question of whether a defendant's intentional conduct can be both the
cause in fact and the proximate cause of a tort victim's suicide. It
ultimately held that "a reasonable juror could conclude that [Bunn's]
conduct was the cause-in-fact of Megan's suicide" but that "proximate
causation is less certain." Rondini v. Bunn, 434 F. Supp. 3d 1266, 1278
(N.D. Ala. 2020). The federal court further concluded that this Court was
"in the best position" to answer the key legal question remaining in the
case -- "whether suicide is an intervening cause that breaks the chain of
causation stemming from a defendant's intentional tort to the decedent's
death" -- and it therefore stayed the case so that we could answer the
certified question it posed. Id. at 1278-79. We accepted the federal court's
request to answer the certified question.
6
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Analysis
Both Rondini and Bunn have framed their arguments around this
Court's decision in Gilmore, and we therefore begin our analysis with a
review of that case. In Gilmore, a 17-year-old boy, Michael Gilmore, went
to visit a friend who worked at a convenience store. After finding a
handgun on a shelf under the cash register, Michael used that handgun
to commit suicide behind the cashier's counter. Michael's estate later sued
the store, the store's owner, the franchisor (Shell Oil), and the
friend/employee, alleging that they had "negligently or wantonly" allowed
Michael to fatally injure himself with a handgun that he had found at the
store.2 613 So. 2d at 1273. After the trial court entered summary
judgment in favor of the defendants, Michael's estate appealed.
The Gilmore Court began its analysis by noting that liability will be
imposed in a negligence case only when the injury is a natural and
probable consequence of a negligent act that an ordinarily prudent person
should reasonably foresee would result in an injury. 613 So. 2d at 1274-
2Although it appears that Michael's estate alleged both negligence
and wantonness, Gilmore addresses only the negligence claim.
7
1190439
75. Indeed, the Court emphasized that a negligent party is ultimately not
liable in spite of its negligence if " 'some independent agency intervenes
and is the immediate cause of the injury.' " Id. at 1275 (quoting Hall v.
Booth, 423 So. 2d 184, 185 (Ala. 1982)). The Court explained that such an
act breaks the chain of causation leading back to the initially negligent
party if the act is by itself sufficient to be the sole cause in fact of the
injury. Id. at 1275.
The Gilmore Court further acknowledged that this Court had
previously held that an injured party's own conduct could not be an
intervening cause, see Louisville & Nashville R.R. v. Maddox, 236 Ala.
594, 601, 183 So. 849, 854 (1938), but clarified that such conduct might be
if it (1) is so highly extraordinary or unexpected that it falls outside the
realm of reasonable foreseeability as a matter of law and (2) goes beyond
mere contributory negligence and is of a higher culpability level than the
defendant's negligence. Gilmore, 613 So. 2d at 1275 (citing 57A Am. Jur.
2d Negligence §§ 650 and 652 (1989)). Applying this law to the facts
before it, the Court explained that Michael's death was "an unexplainable
tragedy" but was "not the ordinary and naturally flowing consequences of
8
1190439
the defendants' negligent conduct." 613 So. 2d at 1278. Rather, the Court
concluded, "suicide and/or deliberate and intentional self-destruction is
unforeseeable as a matter of law, and civil liability will not be imposed
upon a defendant for a decedent's suicide." Id. Thus, the Court
determined, Michael's "act of intentionally and deliberately shooting
himself in the head was unforeseeable as a matter of law and was
sufficiently culpable to supersede the defendants' negligence as the
proximate cause of Michael's death." Id. at 1275-76.
Since Gilmore, courts applying Alabama law have recognized that,
in most circumstances, no action will lie to recover damages for allegedly
causing another person's suicide. See, e.g., Vinson v. Clarke Cnty., 10 F.
Supp. 2d 1282, 1303 (S.D. Ala. 1998) ("Under Alabama law, suicide
generally functions as an efficient intervening cause which serves to break
all causal connections between the alleged wrongful or negligent acts and
the death at issue."). But this Court has recognized two exceptions to this
principle: (1) when there is a custodial relationship between the
defendant and the decedent that indicates that the defendant might have
foreseen the decedent's suicide, such as when the decedent is being held
9
1190439
in a prison or hospital at the time of his or her death, and (2) when the
defendant's actions are alleged to have created an "uncontrollable
impulse" in the victim leading to suicide. Prill, 23 So. 3d at 8.
The federal court has explained that neither of these two exceptions
apply here. First, it is undisputed that Megan and Bunn were in different
states at the time of her death, and there has been no allegation that
there was any custodial relationship between them. Second, Megan's
death occurred almost eight months after the alleged sexual assault and
after she had sought and received treatment from multiple health-care
providers. In light of this passage of time and the evidence that Megan
had consciously sought treatment, the federal court concluded that there
was not substantial evidence that she took her life in a "delirium, frenzy,
or rage" so as to implicate the second exception. Rondini, 434 F. Supp. 3d
at 1277-78.
The parties have very different views about the scope of this Court's
holding in Gilmore, but both seem to agree with the federal court's
conclusion that neither of the exceptions to Gilmore's general rule apply
here. Rondini instead argues that we should create a third exception for
10
1190439
cases in which the suicide is alleged to have been caused by a defendant's
intentional, as opposed to negligent, actions. He therefore urges us to
conclude that Megan's suicide was not a superseding cause breaking the
chain of causation leading back to Bunn. In contrast, Bunn argues that we
should continue to apply the general rule set forth in Gilmore barring
wrongful-death actions based on a suicide and, because neither of the two
existing exceptions to that rule apply, urges us to hold that Megan's
suicide was a superseding cause breaking the chain of causation between
the alleged sexual assault and her death. For the reasons explained
below, we agree in principle with the view expressed by Rondini. When
a person commits suicide after an alleged sexual assault, that act does not
as a matter of law break the chain of causation so as to absolve the alleged
assailant of liability.
In addressing the parties' arguments, it is necessary to explicate
Gilmore. At its core, Gilmore was about whether the negligent actions of
the defendants involved caused the decedent's death. Accordingly, the
analysis in that opinion was rooted in negligence law. This case, however,
involves a claim that Megan's death was caused by Bunn's intentional
11
1190439
actions. We have previously recognized that intentional-tort claims are
different from negligence (or wantonness) claims because, in intentional-
tort cases, the tortfeasor specifically intended to cause injury to the
victim. See Ex parte Capstone Bldg. Corp., 96 So. 3d 77, 85-86 (Ala.
2012). And traditional negligence concepts like foreseeability and
proximate cause, which form the backbone of the negligence analysis in
Gilmore, have a more limited application in intentional-tort cases. See
Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So. 2d
601, 607 (Ala. 1980) (explaining that "in cases of intentional or aggravated
acts there is an extended liability and the rules of proximate causation are
more liberally applied than would be justified in negligence cases"); see
also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9 at
40 (5th ed. 1984) (explaining that in most cases involving intentional torts
"[t]he defendant's liability for the resulting harm extends ... to
consequences which the defendant did not intend, and could not
reasonably have foreseen, upon the obvious basis that it is better for
unexpected losses to fall upon the intentional wrongdoer than upon the
innocent victim" (footnote omitted)).
12
1190439
Alabama law is not unique in this respect. Indeed, when the
Supreme Court of New Hampshire considered a certified question similar
to the one now posed to this Court, it cited Shades Ridge Holding as
support for its declaration that "[t]he law of torts recognizes that a
defendant who intentionally causes harm has greater culpability than one
who negligently does so." Mayer v. Town of Hampton, 127 N.H. 81, 85,
497 A.2d 1206, 1209 (1985). The Mayer court further explained that, in
intentional-tort cases, "consideration of the degree of moral wrong and the
seriousness of the harm" that the intentional tortfeasor intended was
more relevant than foreseeability in light of "the policy behind imposing
liability for intentional torts: compensating the victim and deterring
intentional harm to others." 127 N.H. at 86, 497 A.2d at 1210. Consistent
with that approach, the Mayer court held that a wrongful-death action
based on a suicide was viable if "the tortfeasor, by extreme and outrageous
conduct, intentionally wronged a victim and ... this intentional conduct
caused severe emotional distress in [the] victim which was a substantial
factor in bringing about the suicide of the victim." 127 N.H. at 87, 497
A.2d at 1211. The Mayer court concluded that, "[s]o long as the
13
1190439
defendant's wrongful act was a substantial cause of the suicide, there is
no reason in such a case to undermine ... the policy behind intentional
torts which extends a defendant's liability almost without limit to any
actual harm resulting." Id.3
We agree with the fundamental rationale of Mayer and now hold
that a wrongful-death action may be pursued against a defendant when
there is substantial evidence both that the defendant sexually assaulted
3Other courts that have considered this issue have similarly allowed
wrongful-death actions to proceed when there was substantial evidence
that a defendant's intentional tort was the cause in fact of the tort victim's
suicide. See, e.g., R.D. v. W.H., 875 P.2d 26, 31 (Wyo. 1994) ("[A]n actor
will be liable when he intentionally commits a tort, in this case sexual
assault, and the commission of that tort causes an emotional or
psychiatric illness which is a substantial factor in bringing about the
suicide of the victim" even though the actor may not have intended to
cause that emotional or psychiatric illness); Tate v. Canonica, 180 Cal.
App. 2d 898, 909, 5 Cal. Rptr. 28, 36 (1960) ("Consequently, we believe
that, in a case where the defendant intended, by his conduct, to cause
serious mental distress or serious physical suffering, and does so, and
such mental distress is shown by the evidence to be 'a substantial factor
in bringing about' the suicide, a cause of action for wrongful death results,
whether the suicide was committed in a state of insanity, or in response
to an irresistible impulse, or not." (internal citation omitted)); see also
Clift v. Narragansett Television, L.P., 688 A.2d 805, 812 (R.I. 1996);
Kimberlin v. DeLong, 637 N.E.2d 121, 128 (Ind. 1994); State ex rel.
Richardson v. Edgeworth, 214 So. 2d 579, 586 (Miss. 1968).
14
1190439
the decedent and that the assault was a cause in fact of the decedent's
later suicide. In such cases, it is unnecessary to analyze whether the
decedent's suicide was a foreseeable consequence of the sexual assault;
liability may attach without regard to whether the defendant intended or
could have reasonably foreseen that result. Keeton et al., supra, § 9 at 40.
It is unnecessary for us to define today the universe of intentional
torts that might appropriately give rise to a wrongful-death action based
on a suicide. The question certified by the federal court concerns an
alleged sexual assault. To answer that question, we need declare only
that the suicide of a person who is the victim of one specific intentional
tort -- sexual assault -- is not a superseding cause that will absolve the
alleged assailant of liability as a matter of law. Whether other intentional
torts stemming from a defendant's extreme and outrageous conduct that
causes severe emotional distress to the victim might also support a
wrongful-death action after a suicide is a question for another day.4
4The limitation of our holding to cases involving an allegation of
sexual assault is similar to how we have confined the tort of outrage to
cases involving extreme circumstances. See Little v. Robinson, 72 So. 3d
1168, 1172 (Ala. 2011). Although we have set forth some circumstances
15
1190439
Conclusion
The federal court concluded that Rondini had produced substantial
evidence to support his claim that Bunn had sexually assaulted Megan
and that Bunn's actions were the cause in fact of Megan's suicide. But,
because it was unclear whether Alabama law would permit a finding that
Bunn's actions were the proximate cause of Megan's death, the federal
court asked us to decide whether a suicide that occurred several months
after an alleged sexual assault was necessarily a superseding cause
breaking the chain of causation leading to the suicide. We now answer
that question in the negative; suicide in such cases will not as a matter of
law absolve the alleged assailant of liability. The statement in Gilmore
that suicide is unforeseeable as a matter of law, 613 So. 2d at 1275, was
made in the context of a negligence case and does not apply in an
intentional-tort case involving an allegation of sexual assault.
in which tort-of-outrage claims might be permitted, we have not
attempted to identify every instance in which a tort-of-outrage claim
might be viable. See Wilson v. University of Alabama Health Servs.
Found., P.C., 266 So. 3d 674, 677 (Ala. 2017) (explaining that the tort of
outrage may be viable in some cases "outside the context" of the extreme
circumstances identified in existing tort-of-outrage cases).
16
1190439
QUESTION ANSWERED.
Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur.
Parker, C.J., concurs in part and concurs in the result.
Sellers, J., concurs in the result.
17
1190439
PARKER, Chief Justice (concurring in part and concurring in the result).
I agree with the main opinion's holding (and analysis supporting
that holding) that this Court's general rule that suicide is a superseding
cause in negligence cases, see Gilmore v. Shell Oil Co., 613 So. 2d 1272,
1278 (Ala. 1993), does not apply to intentional-tort claims based on sexual
assault. I understand the opinion's references to "as a matter of law"
within its statements of the holding, see ___ So. 3d at ___, ___, ___, ___,
to mean that suicide may be, but is not necessarily, a superseding cause
in cases of this type. That is, suicide may or may not be a superseding
cause in a particular sexual-assault case, depending on the facts. Of
course, if, based on the evidence in a particular case, all reasonable jurors
would have to find that suicide was a superseding cause, then the
defendant would still be entitled to judgment "as a matter of law," by a
summary judgment or a judgment as a matter of law during or after trial.
Therefore, I do not understand today's answer to the certified question as
deciding whether Megan Rondini's suicide was a superseding cause. To
decide that fact-based issue would be outside our role of resolving the
abstract legal issue conveyed by the certified question and would usurp
18
1190439
the federal court's role of applying our holding to the evidence and
procedural posture before it. See generally Holcim (US), Inc. v. Ohio Cas.
Ins. Co., 38 So. 3d 722, 726-27 (Ala. 2009) (explaining that we are not
restricted by federal court's phrasing of certified question).
I disagree, however, with the main opinion's apparent discarding of
the requirement of proximate cause in sexual-assault/suicide cases. To
understand this concern, some doctrinal background is necessary. First,
the term "cause in fact" describes the requirement that there be a time-
space causal relationship between the defendant's conduct and the
plaintiff's harm. See W. Page Keeton et al., Prosser and Keeton on the
Law of Torts § 41 at 264-65 (5th ed. 1984); Restatement (Second) of Torts
§ 870 cmt. 1 (Am. L. Inst. 1979); Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 26, Reporters' Note cmt. a (Am. L. Inst.
2010); id. ch. 5. It is a question of scientific and logical sequence: Did the
harm result in some way -- however unlikely, attenuated, or remote --
from the conduct? ("Cause in fact" is sometimes referred to as "factual
cause," "actual cause," or "but-for cause." See, e.g., 1 Dan B. Dobbs et al.,
The Law of Torts ch. 17 (2d ed. 2011); Restatement (Third) § 26.)
19
1190439
"Proximate cause," on the other hand, is used to describe a set of
limitations on the scope of the defendant's liability for results that are
unlikely or attenuated. Indeed, proximate "cause" is something of a
misnomer, because it is not about causation at all, in science or logic.
Instead, it is founded on a question of legal policy: What kinds of unlikely
or attenuated results should defendants be held responsible for? See
Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortg. Co., 390 So. 2d
601, 611-12 (Ala. 1980); Keeton et al., supra, § 41 at 264, § 42 at 273;
Dobbs et al., supra, § 198 at 681-82, § 199; 3 Stuart M. Speiser et al.,
American Law of Torts § 11:1 (1986); Restatement (Third) § 29 cmt. g,
Reporters' Note cmt. e.5 This question has led courts and scholars to
5Professor Keeton cogently explains:
" 'Proximate cause' -- in itself an unfortunate term -- is
merely the limitation which the courts have placed upon the
actor's responsibility for the consequences of the actor's
conduct. In a philosophical sense, the consequences of an act
go forward to eternity, and the causes of an event go back to
the dawn of human events, and beyond. But any attempt to
impose responsibility upon such a basis would result in
infinite liability for all wrongful acts, and would 'set society on
edge and fill the courts with endless litigation.' As a practical
matter, legal responsibility must be limited to those causes
20
1190439
which are so closely connected with the result and of such
significance that the law is justified imposing liability. Some
boundary must be set to liability for the consequences of any
act, upon the basis of some social idea of justice or policy.
"... Often ..., the legal limitation on the scope of liability
is associated with policy -- with our more or less inadequately
expressed ideas of what justice demands, or of what is
administratively possible and convenient. ... The attempt to
deal with [cases involving such legal limitations] in the
language of causation leads often to confusion."
"[Proximate cause] is sometimes said to depend on whether the
conduct has been so significant and important a cause that the
defendant should be legally responsible. But both significance
and importance turn upon conclusions in terms of legal policy,
so that they depend essentially on whether the policy of the
law will extend the responsibility for the conduct to the
consequences which have in fact occurred. ... This is not a
question of causation, or even a question of fact, but quite far
removed from both; and the attempt to deal with it in such
terms has led and can lead only to utter confusion.
" ... The word 'proximate' is a legacy of Lord Chancellor
Bacon .... The word means nothing more than near or
immediate; and when it was first taken up by the courts it had
connotations of proximity in time and space which have long
since disappeared. It is an unfortunate word, which places an
entirely wrong emphasis upon the factor of physical or
mechanical closeness."
21
1190439
articulate principles that define the outer boundaries of defendants'
liability (including the concept of superseding cause). See Keeton et al.,
supra, §§ 43, 44; Dobbs et al., supra, ch. 18; Restatement (Second) §§ 435-
462; Restatement (Third) ch. 6.
Thus, proximate cause is necessarily an ever-present requirement
that applies equally to negligence and intentional torts. See Speiser et al.,
supra, § 11:23; Restatement (Second) § 431(b) & cmt. e; Restatement
(Third) § 33. Of course, the requirement may impose different limitations
on the scope of liability between negligence and intentional torts. Compare
Restatement (Third) §§ 29-32 with id. § 33. For example, as the main
opinion appears to recognize, intentional torts generally involve a higher
degree of culpability. For that reason, courts allow juries to hold
intentional-tort defendants responsible for results that are less probable
Keeton et al., supra, § 41 at 264 (footnote omitted), § 42 at 273. As the
Restatement (Third) notes, " 'proximate cause' is neither about cause nor
proximity." Restatement (Third) § 26 Reporters' Note cmt. a. Because the
term is so misleading, the Restatement (Third) has aptly proposed
substituting more transparently descriptive terms such as "limits on the
scope of liability." See Restatement (Third) ch. 6, Special Note on
Proximate Cause; id. § 29 cmts. a, b, Reporters' Note cmt. b.
22
1190439
than those for which a merely negligent defendant would be held
responsible. See Shades Ridge, 390 So. 2d at 607-11; Restatement
(Second) § 435B cmt. a; Restatement (Third) § 33(a)-(b) & cmts. a, d, e,
Reporters' Note cmt. e; cf. Speiser et al., supra, § 11:24. Again, this
difference in the scope of liability is ultimately rooted not in a scientific or
mathematical concept of "foreseeability," but in a moral-normative, legal-
policy judgment about the breadth of results for which defendants may
justly be held responsible.
This difference in the application of proximate cause explains the
holding in this case. In intentional-tort cases, unusual events such as the
victim's suicide are less likely to relieve a defendant of responsibility and
thus to be labeled a "superseding cause" that "breaks" the "chain" of
"proximate cause." Hence, suicide is always a superseding cause as to
negligence (absent one of the recognized exceptions), see Gilmore, but may
or may not be a superseding cause as to intentional torts.
23 | May 7, 2021 |
205b098c-178a-4136-a5b5-1a1c2bbe53b2 | Ex parte Shannon Lee Cochran. | N/A | 1200231 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200231
Ex parte Shannon Lee Cochran. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Shannon Lee Cochran v.
State of Alabama) (Lauderdale Circuit Court: CC-19-234; Criminal Appeals :
CR-19-0204).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. W
ise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
6ad904d4-9f3a-41b6-a8c3-d5126a379e8c | Ex parte Bennie Patterson, Jr. | N/A | 1200338 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200338
Ex parte Bennie Patterson, Jr. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Bennie Patterson, Jr. v.
State of Alabama) (Lowndes Circuit Court: CC-86-73.64; Criminal Appeals :
CR-19-0495).
CERTIFICATE OF JUDGMENT
W
HEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Mendheim, J. -
Parker, C.J., and Shaw, Bryan,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
03df5a7e-d1d5-402e-ba32-ad96ef1eb9e6 | Ex parte Randy Henson. | N/A | 1200346 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200346
Ex parte Randy Henson. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CIVIL APPEALS (In re: Randy Henson v. Edison A. Thomas and
Tammy Thomas) (Talladega Circuit Court: CV-17-900056; Civil Appeals :
2190587).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
e6e9b2ef-eed1-45fa-9042-9f1aa27b66a6 | Hazel Green Trojan Club and Hazel Green Trojan Club, Inc. v. Hazel Green Athletic Association and Brandon Holt | N/A | 1190408 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
June 11, 2021
1190408
Hazel Green Trojan Club and Hazel Green Trojan Club, Inc. v.
Hazel Green Athletic Association and Brandon Holt (Appeal from Madison
Circuit Court: CV-16-900251).
CERTIFICATE OF JUDGMENT
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on June 11, 2021:
Application Overruled. No Opinion. Shaw, J. -
Parker, C.J., and Bryan,
Mendheim, and Mitchell, JJ., concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on April 16, 2021:
Affirmed. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim, and
Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, J u lia J. W eller, as C lerk o f th e S u p rem e C ou rt o f A lab am a, d o h e r e b y c e r tify th a t th e
fo re g o in g is a fu ll, tru e, a n d c o r r e c t c o p y o f th e in str u m e n t(s) h e r e w ith se t o u t as sa m e a p p ea r(s)
o f reco rd in sa id C ou rt.
W itn ess m y h a n d th is 1 1 th d a y o f J u n e , 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
30e2f103-3ac8-40e4-8830-c168e747cd27 | Ex parte Moses Siedlik. | N/A | 1181055 | Alabama | Alabama Supreme Court | Rel: April 30, 2021
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, 2020-2021
____________________
1181055
____________________
Ex parte Moses Siedlik
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Moses Siedlik
v.
State of Alabama)
(Jefferson Circuit Court, CC-15-83.70;
Court of Criminal Appeals, CR-17-0675)
STEWART, Justice.
1181055
The writ of certiorari is quashed.
In quashing 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' unpublished memorandum. Horsley v.
Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT QUASHED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and
Mitchell, JJ., concur.
2 | April 30, 2021 |
c1c7876d-d6fd-4783-9947-1a6d56d6ddb2 | GPJ Investments, LLC v. Walker Key Condominium Association, Inc. | N/A | 1190551 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190551
GPJ Investments, LLC v. Walker Key Condominium Association, Inc.
(Appeal from Baldwin Circuit Court: CV-19-900623).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | April 16, 2021 |
64d97861-477a-4154-9bb0-6d8f5d927ab3 | Ex parte Jeffery Paul Dunnavant. | N/A | 1200322 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200322
Ex parte Jeffery Paul Dunnavant. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Jeffery Paul Dunnavant
v. State of Alabama) (Talladega Circuit Court: CC-15-242.60; Criminal
Appeals :
CR-19-0722).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
9cf55398-8c1d-43e8-980f-318b43890ed4 | Performance Builders, LLC, et al. v. Lopas | N/A | 1190977 | Alabama | Alabama Supreme Court | REL: May 28, 2021
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, 2020-2021
____________________
1190977
____________________
Performance Builders, LLC; Chris White;
Shana Tyler Clark; and DSKAT Holdings, LLC,
d/b/a A-Pro Home Inspection Services Birmingham
v.
Scott Lopas and Janet Lopas
Appeal from Etowah Circuit Court
(CV-18-900981)
MENDHEIM, Justice.
1190977
Scott Lopas and Janet Lopas commenced an action in the Etowah
Circuit Court against, among others, Performance Builders, LLC, Chris
White, Shana Tyler Clark, and DSKAT Holdings, LLC, d/b/a A-Pro Home
Inspection Services Birmingham (collectively referred to as "the movants")
asserting various causes of actions based on the inspection, appraisal, and
sale of a piece of real property purchased by the Lopases.1 The movants
filed a motion to compel arbitration of the Lopases' claims, which the
circuit court denied. The movants appeal the circuit court's order denying
their motion to compel arbitration.
Facts and Procedural History
On May 1, 2018, Scott Lopas entered into a contract for the purchase
of real property located in Gadsden. The contract was contingent upon the
property passing an inspection. Christi Hicks, a realtor hired by the
Lopases to aid them in the purchase of the property, recommended that
the Lopases hire White and his company, Performance Builders, to
1The Lopases also asserted claims against Austin S. Kimberly,
Kimberly Appraisal Services, Kimberly Realty Co., Inc., and Sydney
Gunter, all of whom were later dismissed pursuant to a pro tanto order of
dismissal and are not parties to this appeal.
2
1190977
conduct the inspection. White's affidavit testimony indicates that he
performs "home inspections under the brand name of A-Pro Home
Inspection[ Services, LLC,] as an authorized agent of the A-Pro franchisee
for the State of Alabama." DSKAT Holdings, LLC, d/b/a A-Pro Home
Inspection Services Birmingham ("DSKAT"), is the A-Pro Home Inspection
Services, LLC ("A-Pro"), franchisee for the State of Alabama; A-Pro is a
Louisiana company. Janet Lopas's affidavit testimony indicates that,
before the Lopases contacted White, she had "reviewed ... information on
the A-Pro internet site" concerning certain guarantees purportedly offered
for inspections performed; Janet attached to her affidavit testimony a
printout of the content of the Internet site she visited.2
There is no dispute that the Lopases contacted White, that the
Lopases hired White to conduct an inspection of the property, that White
conducted an inspection of the property, or that the Lopases paid White
for the inspection. There is, however, a dispute as to the agreement
2We note that it is disputed whether the Internet site visited by
Janet was A-Pro's or DSKAT's. The affidavit testimony of Clark indicates
that DSKAT made no guarantees to the Lopases.
3
1190977
between the parties concerning the completed and paid-for inspection.
Specifically, there is disagreement as to whether the Lopases signed an
arbitration agreement.
White's affidavit testimony states that his "[i]nteractions with
clients occur[] over telecommunications and internet networks." White's
affidavit testimony further states that "A-Pro ... licenses the ... software"
that White uses to interact with clients. The affidavit testimony of Clark,
the sole owner of DSKAT, states that she "authorize[s] and administer[s]
independent contractors who are licensed home inspectors and operate
under the brand name of A-Pro Home Inspections," such as White and his
company, Performance Builders. Clark's affidavit testimony further
states that she "authorize[s], supervise[s], and administer[s] the use of the
automated software system owned and licensed by A-Pro," which is called
the Inspection Support Network ("the ISN"). White used the ISN in his
interactions with the Lopases.
Clark's affidavit testimony states that the ISN documented White's
various interactions with the Lopases and that Clark, by reviewing the
Lopases' "ISN profile," was able to verify that specific events occurred.
4
1190977
Clark's affidavit testimony indicates that Scott or his agent contacted
White and requested an inspection of the property.3 In response, White
sent Scott the following e-mail on May 6, 2018:
"Hello Scott,
"....
"This email contains a link to the [i]nspection
[a]greement necessary for the inspection. Please insert your
initials and scroll to the bottom of the page to sign using your
computer's mouse and send it back to us by clicking on 'Submit
Signature' buttons at the bottom. It is very important we
receive this paperwork back in our office in a timely manner
along with payment as we are unable to release your report
without them.
"Click to view and sign your agreement online!
"The total fee for this inspection is $369.00
"Click to pay online."
Clark's affidavit testimony states that the Lopases "accessed and scrolled
over the entire [i]nspection [a]greement to reach the field at the bottom
where [Scott] executed the [i]nspection [a]greement by electronic
3Based on Janet's affidavit testimony, it appears that she was the
one actually interacting with White via the ISN, even though the
interactions were under the name of Scott.
5
1190977
signature then clicked on the 'Submit Signature' button at the bottom of
the page on May 7, 2018." The inspection agreement defines Scott as the
client, and an electronic signature appears in the "client" signature block
of the inspection agreement. The inspection agreement includes an
arbitration clause, which states:
"ARBITRATION: Any dispute arising out of the
inspection, report or the interpretation of this agreement,
except for non-payment of the inspection fee, shall be resolved
in accordance with the Rules of the American Arbitration
Association. The parties shall select a mutually agreed upon
arbitrator who is a home inspector certified by the
International Society of Home Inspectors. If the parties are
unable to agree upon an arbitrator, either party may request
that a certified home inspector be selected by the International
Society of Home Inspectors or American Society of Home
Inspectors to arbitrate the proceedings. Such selection shall
be binding upon the parties. The prevailing party shall be
awarded all arbitration costs."
The inspection agreement specifically states that "[t]his inspection is not
considered to be an expressed or implied guarantee or warranty of any
kind regarding the condition of the property, its systems or components."
The Lopases paid the $369 inspection fee on May 7, 2018. Clark's
affidavit testimony states that the Lopases "received a copy of the
[i]nspection [a]greement they signed electronically as well as a receipt."
6
1190977
White completed the inspection of the property on May 7, 2018, and
completed the inspection report, which was then made available to the
Lopases via the ISN. Clark's affidavit testimony states that the ISN
"[i]mposes controls on client access to the inspection report by requiring
payment of the inspection fee and execution by electronic signature of the
inspection agreement before releasing the inspection report to the clients."
Clark's affidavit testimony further states that the
"ISN requires clients to access, review and sign the inspection
agreement through automated prompts that prohibit clients
going to the next step in the procedure until they compete the
required sequence of events to gain access [to the inspection
report]. This means clients are required to access and review
the [inspection] agreement before they are able to make
payment."
Janet's affidavit testimony states that she received the inspection report
and a receipt for the payment of the inspection fee but that "[n]either ...
Scott nor I signed the receipt or any other document with the report."
Janet's affidavit testimony also states that, "[b]efore [the Lopases] made
payment and before the inspection, neither White nor anyone from A-Pro
told me that any disputes had to be arbitrated." Scott did not file an
affidavit.
7
1190977
Shortly after moving into the property on July 4, 2018, the Lopases
began "having serious concerns about very unsteady and sagging floors,"
issues that were apparently not documented in White's inspection report.
Janet's affidavit testimony indicates that she contacted White to report
the issues with the property but that White did not contact the Lopases
"regarding [their] concerns or [go] to [their] house to examine it."
Accordingly, on December 20, 2018, the Lopases filed a complaint
that, as amended, asserted the following claims against White,
Performance
Builders,
Clark,
and
DSKAT,
among
others:
misrepresentation, negligence, wantonness, breach of contract, breach of
warranty, and fraud. On January 16, 2019, White and Performance
Builders filed an answer asserting, among other things, that the Lopases'
claims "are due to be arbitrated by agreement of the parties."
On July 15, 2019, White and Performance Builders filed a motion to
compel arbitration. White and Performance Builders argued that the
inspection agreement contains an arbitration clause, that the transaction
8
1190977
affects interstate commerce,4 and that Scott electronically signed the
inspection agreement. They further argued that the reference in the
arbitration clause of the inspection agreement to the Rules of the
American Arbitration Association "is clear and convincing evidence of [the
parties'] intent to submit all issues of arbitrability to an arbitrator."
On December 12, 2019, the circuit court, ex mero motu, ordered the
parties to mediate the case. On February 14, 2020, the parties engaged
in mediation but could not reach a resolution of the Lopases' claims. On
February 18, 2020, White and Performance Builders filed a motion to stay
the proceedings pending the circuit court's ruling on their motion to
compel arbitration. In their motion to stay, White and Performance
Builders stated that, "[p]rior to mediation, all parties assured White and
4White's affidavit testimony states that he "and/or Performance
Builders ... transfers and receives funds across state lines, through
interstate monetary networks, and by using services provided by out of
state payment processors. I frequently inspect houses for parties moving
across state lines." White's affidavit testimony further states that
Performance Builders "obtains insurance coverage provided by out of state
insurance companies." The Lopases contest the fact that Performance
Builders had insurance at the times relevant to their claims, but they
have not presented any evidence contradicting White's affidavit testimony
to the contrary.
9
1190977
Performance Builders in writing that participation in mediation would not
be cited as grounds to assert a waiver of the right to arbitration."
On March 3, 2020, the Lopases filed a response to White and
Performance Builders' motion to compel arbitration. The Lopases argued
that Scott did not sign the inspection agreement; they did not address the
specific allegations contained in Clark's affidavit testimony, detailed
above. The Lopases further argued that the inspection agreement "must
be characterized as a contract of adhesion given (a) its boilerplate nature,
(b) the fact that it is entirely inconsistent with the ... guarantee, and
(c) was part of a receipt that came after payment, after the service was
performed and contains an exculpation provision." Concerning the
arbitration clause itself, the Lopases argued that "it is contained in a
document not signed by Scott or Janet"; that "it limits itself to '[a]ny
dispute arising out of the inspection ...' [and, thus,] cannot be applied to
[the Lopases'] intentional tort claims"; "gives a judicial remedy to White
for non-payment of the inspection fee which renders the arbitration clause
non-mutual as far as the remedy of each party and invalid"; and "provides
no 'meaningful remedy' to Janet and Scott." The Lopases also asserted
10
1190977
that "White has substantially invoked the litigation process in filing an
answer and seeking a judicial award of attorney fees in his motion thereby
waiving the right to arbitration." On May 17, 2020, White and
Performance Builders filed a reply to the Lopases' response, addressing
all the arguments raised by the Lopases. On the same day, Clark and
DSKAT filed a motion joining White and Performance Builders' motion to
compel arbitration.
On July 17, 2020, the circuit court denied the movants' motion to
compel arbitration, without stating a reason. The movants timely
appealed pursuant to Rule 4(d), Ala. R. App. P., which authorizes an
appeal from an order either granting or denying a motion to compel
arbitration.
Standard of Review
This Court's standard of review of a denial of 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
11
1190977
seeking to compel arbitration has the burden of proving the
existence of a contract calling for 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)." ' "
Hoover Gen. Contractors-Homewood, Inc. v. Key, 201 So. 3d 550, 552 (Ala.
2016) (quoting Elizabeth Homes, L.L.C. v. Gantt, 882 So. 2d 313, 315 (Ala.
2003), quoting in turn Fleetwood Enters., Inc. v. Bruno, 784 So. 2d 277,
280 (Ala. 2000)).
Discussion
Under the foregoing standard, the movants have the burden of
proving the existence of an arbitration agreement and that the contract
containing the arbitration agreement evidences a transaction affecting
interstate commerce. To that end, the movants introduced the inspection
agreement, which bears the electronic signature of Scott. The movants
further presented the affidavit testimony of Clark and the ISN records
explaining how Scott, or his agent, reviewed the inspection agreement and
electronically signed it. There is no dispute that the transaction at issue
12
1190977
in this case affects interstate commerce. The evidence presented by the
movants proves the existence of the inspection agreement, which contains
an arbitration clause, and proves that the inspection agreement affects
interstate commerce.
The burden therefore shifts to the Lopases to demonstrate that the
inspection agreement is not valid or that it does not apply to this dispute.
Although they presented an argument below contesting whether they
actually had signed the inspection agreement, the Lopases present no
such argument before this Court. Instead, citing the doctrine of unclean
hands, the Lopases argue that specifically enforcing the inspection
agreement and compelling them to arbitrate their claims in this case
would be in violation of § 8-1-40(2), Ala. Code 1975, which states that
"[s]pecific performance cannot be enforced against a party to a contract ...
[i]f it is not, as to him, just and reasonable." The Lopases argue that
enforcement of the arbitration clause in the inspection agreement would
not be "just and reasonable" because, they argue, the movants engaged in
"fraudulent, dishonest and ... unconscientious" conduct in the making of
the inspection agreement. The Lopases' brief at p. 15. The Lopases assert
13
1190977
that the following alleged conduct of the movants constitutes "fraudulent,
dishonest and unconscientious" conduct: White's failure to respond to the
Lopases' complaints about their property after White inspected it; the
movants' refusal to honor the guarantees listed on A-Pro's Web site and
the movants' assertion that the guarantees claimed by the Lopases were
not actually offered to the Lopases; the movants' assertion that Scott
signed the inspection agreement, even though Janet claims that he did
not;5 and Performance Builders' alleged failure to have insurance.6
Before analyzing the merits of the Lopases' argument, however, we
must first determine whether it is this Court's or an arbitrator's
responsibility to do so. The movants argue that the argument raised by
the Lopases implicates the issue of arbitrability that, under the terms of
5This argument is distinct from the Lopases' argument below that
Scott did not electronically sign the inspection agreement. Instead, the
Lopases are arguing before this Court that the movants' insistence that
Scott did sign the inspection agreement, even though the Lopases claim
he did not, is evidence of their allegedly unconscionable behavior.
6As discussed in note 4, supra, the Lopases contest whether
Performance Builders had insurance, but they have not presented any
evidence to contradict White's affidavit testimony indicating that
Performance Builders has "insurance coverage provided by out of state
insurance companies."
14
1190977
the arbitration clause, an arbitrator must decide. The arbitration clause
in the inspection agreement specifically states that "[a]ny dispute arising
out of the inspection, report or the interpretation of this agreement, except
for non-payment of the inspection fee, shall be resolved in accordance with
the Rules of the American Arbitration Association." (Emphasis added.)
This Court has determined that a reference to the Rules of the American
Arbitration Association ("AAA") in an arbitration provision demonstrates
the intent of the parties to submit all issues of arbitrability to an
arbitrator:
" ' "[T]he issue whether a party has waived the
right to arbitration by its conduct during litigation
is a question for the court and not the arbitrator."
Ocwen Loan Servicing, LLC v. Washington, 939
So. 2d 6, 14 (Ala. 2006). However, the general rule
that the court and not the arbitrator decides
whether a party has waived the right to arbitration
has an exception: issues typically decided by the
court will be decided by the arbitrator instead
when there is ' "clear and unmistakable evidence" '
of such an agreement in the arbitration provision.
First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 944, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995)
(quoting AT & T Techs., Inc. v. Communications
Workers of America, 475 U.S. 643, 649, 106 S. Ct.
1415, 89 L. Ed. 2d 648 (1986) (alterations
omitted)); see also Marie v. Allied Home Mortg.
15
1190977
Corp., 402 F.3d 1, 14 (1st Cir. 2005) (citing First
Options).'
"Anderton v. The Practice-Monroeville, P.C., 164 So. 3d 1094,
1098 (Ala. 2014) (footnote omitted and emphasis added). In
Anderton, this Court determined that the incorporation into
the arbitration provision of the commercial arbitration rules of
the American Arbitration Association ('the AAA') constituted
clear and unmistakable evidence of the parties' intent to
submit issues of arbitrability to the arbitrator. See 164 So. 3d
at 1101-02."
Bugs "R" Us, LLC v. McCants, 223 So. 3d 913, 918-19 (Ala. 2016).
Rule 7(a) of the AAA Commercial Rules provides: "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 or to the arbitrability of any claim or
counterclaim."7 Rule 7(b) provides, in pertinent part: "The arbitrator
shall have the power to determine the existence or validity of a contract
of which an arbitration clause forms a part."8 Based on the above-quoted
7See Chris Myers Pontiac-GMC, Inc. v. Perot, 991 So. 2d 1281, 1284
(Ala. 2008) (noting that we may take judicial notice of the arbitration
rules of the American Arbitration Association even when they do not
appear in the record).
8Even if the AAA Consumer Rules, rather than the AAA Commercial
Rules, apply in this case, Rules 14(a) and (b) of the AAA Consumer Rules
16
1190977
portion of McCants, the inspection agreement, and the language of the
applicable AAA Rules, it is clear that the parties intended for an
arbitrator to determine issues of arbitrability.
We must next determine whether the movants are correct in arguing
that the argument raised by the Lopases in their brief on appeal raises an
issue of arbitrability; if so, under the terms of the arbitration clause, the
issue is one for the arbitrator, not this Court, to decide. In Lewis v.
Conseco Finance Corp., 848 So. 2d 920 (Ala. 2002), this Court determined
that the argument raised by the Lopases -- that § 8-1-40 prevents the
specific enforcement of the arbitration clause -- presents an issue of
arbitrability to be decided by an arbitrator. In Lewis, the plaintiffs in that
case appealed the trial court's order granting a motion to compel
arbitration of the plaintiffs' claims based on an arbitration provision in an
agreement executed by the plaintiffs. The plaintiffs argued before this
Court, citing § 8-1-40, "that the trial court erred in specifically enforcing
the arbitration agreement." Id. at 924. Specifically, the plaintiffs argued
are identical to Rules 7(a) and (b) of the AAA Commercial Rules.
17
1190977
that § 8-1-40 precluded enforcement of the arbitration provision because,
the plaintiffs said, their consent to the agreement containing the
arbitration provision had been " 'obtained by "misrepresentation,
concealment, circumvention or unfair practices." ' " Lewis, 848 So. 2d at
925. This Court stated:
"However, if the [plaintiffs'] challenge is in reality a
challenge to the enforceability of the installment agreement as
a whole, then that challenge is properly resolved by an
arbitrator -- not by the court. Green Tree Fin. Corp. v.
Wampler, 749 So. 2d 409, 413 (Ala. 1999) (holding that an
attack on the enforceability of a security agreement must be
arbitrated). Wampler provides the general rule for
determining the proper forum for the resolution of claims
when an arbitration provision is involved:
" 'When deciding the threshold issue whether
the court or the arbitrator decides a challenge to
the enforcement of an arbitration clause entered
into by the parties, the court first must satisfy
itself that the terms of the arbitration clause are
broad enough to permit the arbitrator to decide
issues of arbitrability. However, a determination
that, by the terms of the arbitration clause, the
arbitrator is to decide issues of arbitrability does
not end the inquiry. Where the attack is addressed
to the arbitration clause itself, as opposed to the
contract as a whole, the court, and not the
arbitrator, resolves the issue. But, when the
challenge goes to the whole contract, a contract
that happens to contain an arbitration clause, the
18
1190977
issue of enforceability of the contract, including the
arbitration clause, is for the arbitrator to decide.'
"749 So. 2d at 413. When engaging this analysis, we ' "look
beyond the ad hoc arguments of counsel in order to determine
whether [the plaintiff's] claim actually bears upon the entire
agreement" or just the arbitration clause.' NationsBanc Invs.,
Inc. v. Paramore, 736 So. 2d 589, 591 (Ala. 1999) (quoting
Anniston Lincoln Mercury Dodge v. Conner, 720 So. 2d 898,
901-02 (Ala. 1998)).
"In this case, it is apparent that the [plaintiffs] challenge
the enforceability of the installment agreement as a whole, not
merely the arbitration provision. If § 8-1-40 were truly
applicable, it would preclude [the defendant] from seeking the
specific enforcement of any provision of the agreement, not
merely the arbitration provision."
Lewis, 848 So. 2d at 925-26 (footnote omitted).
Based on this Court's analysis in Lewis, it is apparent that a
challenge to a contract under § 8-1-40 is a challenge to the enforceability
of the contract as a whole, which is an issue of arbitrability. Pursuant to
the terms of the arbitration clause in the inspection agreement, issues of
arbitrability are the responsibility of an arbitrator, not this Court, to
decide.
In the present case, the movants have met their burden of
establishing the existence of an agreement containing an arbitration
19
1190977
provision between the parties and that that agreement involves a
transaction affecting interstate commerce. Furthermore, the arbitration
provision dictates that the issue of enforceability raised by the Lopases
must be submitted to the arbitrator for determination. Therefore, the
circuit court's order denying the movants' motion to compel arbitration is
due to be reversed.
Conclusion
Based on the foregoing, we reverse the circuit court's order denying
the motion to compel arbitration and we remand the case to the circuit
court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Stewart, and
Mitchell, JJ., concur.
20 | May 28, 2021 |
dc818f11-f864-479b-add4-bf3a0cbedee1 | Ex parte Robert J. Baggett, Inc. | N/A | 1200336 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200336
Ex parte Robert J. Baggett, Inc. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS (In re: Ronald Turner v. Robert J.
Baggett, Inc.) (Mobile Circuit Court: CV-16-173; Civil Appeals :
2190745).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
d12a5d53-a6e3-4a16-a929-965dfeb1abdf | Brandon and Angela Cottingham, as custodial parents of Skylar Brionna Cottingham, deceased v. Pleasant Ridge Holy Church of Christ et al. | N/A | 1190791 | Alabama | Alabama Supreme Court | Rel: April 16, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190791
Brandon and Angela Cottingham, as custodial parents of Skylar Brionna
Cottingham, deceased v. Pleasant Ridge Holy Church of Christ et al.
(Appeal from Lawrence Circuit Court: CV-15-900056).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | April 16, 2021 |
108834b0-1dd1-4fcb-9950-6bce712cd000 | Ex parte Savannah and Cindy Dail. | N/A | 1190846 | Alabama | Alabama Supreme Court | Rel: April 23, 2021
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, 2020-2021
_________________________
1190846
_________________________
Ex parte Savannah Dail and Cindy Dail
PETITION FOR WRIT OF MANDAMUS
(In re: Brittany Tarice Jordan, individually and on behalf of
her minor child, Caden Jordan
v.
Diane Reilly Tyner, Savannah Leigh Dail, and Cindy Dail)
(Montgomery Circuit Court, CV-19-900703)
1190846
STEWART, Justice.
Savannah Dail and Cindy Dail ("the Dails") petition this Court for
a writ of mandamus directing the Montgomery Circuit Court ("the trial
court") to dismiss the claims asserted against them by Brittany Tarice
Jordan, in her individual capacity.1 Because Jordan's amended complaint
does not relate back to the filing of the original complaint pursuant to
Rule 15, Ala. R. Civ. P., we grant the petition and issue the writ.
Facts and Procedural History
On April 21, 2017, the parties were involved in an automobile
accident involving several other vehicles. On April 19, 2019, Jordan filed
a complaint in the trial court on behalf of herself and Caden Jordan, her
minor child, asserting claims of negligence and wantonness against Diane
Tyner, the individual driving the automobile that collided with the rear
of Jordan's automobile. Jordan's complaint did not designate or allege a
cause of action against any fictitiously named defendants.
1Jordan also asserted claims on behalf of her minor child, Caden
Jordan. The Dails do not seek to have the action dismissed against them
insofar as it relates to those claims. Accordingly, this opinion applies only
to Jordan's individual claims.
2
1190846
On April 28, 2020, Jordan filed an amended complaint, asserting
additional claims of negligence and wantonness against the Dails. The
Dails filed a motion to dismiss Jordan's claims against them, alleging that
the claims were barred by the applicable statute of limitations and that
the amended complaint did not relate back to the filing of the original
complaint. Jordan filed a response to the Dails' motion to dismiss,
asserting that, although the Dails were listed on an incident and offense
report concerning the accident, the report did not indicate that they were
at fault and that Jordan did not learn of the Dails' fault in the accident
until discovery had been conducted. Jordan relied on Rule 15(c)(3), Ala. R.
Civ. P., in asserting that the amended complaint related back to the filing
of the original complaint. Jordan also asserted that the Dails would not
be prejudiced by having to defend against Jordan's claims because, she
asserted, the Dails had been named as defendants in a separate action
and she could intervene in that action.
The Dails filed a reply to Jordan's response, to which they attached
the incident and offense report that they asserted identified Savannah
3
1190846
Dail as the "prime contributing unit" to the accident.2 The Dails also
argued that Jordan's amended complaint could not relate back to the filing
of the original complaint under Rule 15(c) because Jordan had not
designated a fictitiously named defendant in the original complaint.
The trial court held a hearing on the motion to dismiss and,
afterward, denied the motion. Because the trial court had before it the
incident and offense report that was not part of the pleadings, we treat the
motion to dismiss as a motion for a summary judgment. See Ex parte
Gray, 308 So. 3d 4, 6 n.3 (Ala. 2020)(citing Ex parte Novus Utils., Inc., 85
So. 3d 988, 995 (Ala. 2011))("Because the trial court had before it
materials outside the pleadings that it did not expressly decline to
consider, [the defendant's] motion to dismiss was converted into a motion
for a summary judgment.").
Standard of Review
In Ex parte Profit Boost Marketing, Inc., 254 So. 3d 862, 866 (Ala.
2017), this Court reiterated that filing a petition for the writ of mandamus
2The incident and offense report is not included as an exhibit to the
Dails' petition. Jordan, however, does not dispute the Dails' assertions.
4
1190846
is the proper method for seeking review of the denial of a motion to
dismiss or a summary judgment based on the applicability of Rule 15(c)(3),
the rule upon which Jordan relies in asserting that her amended
complaint relates back to the filing of the original complaint. Accordingly,
the Dails have properly invoked this Court's jurisdiction by filing their
mandamus petition.
" ' " '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)). ...' "
Ex parte Profit Boost Mktg., 254 So. 3d at 866 (quoting Ex parte Novus
Utils., Inc., 85 So. 3d at 995).
Discussion
In their petition, the Dails argue that Jordan's amended complaint
adding them as defendants was barred by the two-year limitations period
5
1190846
prescribed in § 6-2-38, Ala. Code 1975.3 Relying on Ex parte Profit Boost
Marketing, the Dails contend that Jordan did not designate any
fictitiously named defendants in her original complaint, that the Dails
were added, not substituted, as defendants one year after the applicable
limitations period had expired and that, therefore, none of the provisions
of Rule 15(c) apply to permit Jordan's amended complaint to relate back
to the filing of the original complaint. Therefore, they argue, because the
limitations period expired before they were added as defendants, they are
entitled to a writ of mandamus directing the trial court to dismiss
Jordan's claims against them.
Jordan argues that, because the original complaint was timely filed,
she was permitted to add parties to her existing claims because, she
contends, the statute of limitations governs when an action must be
commenced, not when the correct parties must be ascertained or otherwise
included in a complaint. Jordan asserts that her amended complaint
3Section 6-2-38(l) provides that "[a]ll actions for an injury to the
person or rights of another not arising from contract and not specifically
enumerated in this section shall be brought within two years."
6
1190846
complies with Rule 15(c) and that, therefore, it relates back to the filing
of the original complaint.
Rule 15(c) provides:
"An amendment of a pleading relates back to the date of the
original pleading when
"(1) relation back is permitted by the law that
provides the statute of limitations applicable to the
action, or
"(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, except as may
be otherwise provided in Rule 13(c)[, Ala. R. Civ.
P.,] for counterclaims maturing or acquired after
pleading, or
"(3) the amendment, other than one naming
a party under the party's true name after having
been initially sued under a fictitious name, changes
the party or the naming of the party against whom
a claim is asserted if the foregoing provision (2) is
satisfied and, within the applicable period of
limitations or one hundred twenty (120) days of the
commencement of the action, whichever comes
later, the party to be brought in by amendment (A)
has received such notice of the institution of the
action that the party will not be prejudiced in
maintaining a defense on the merits, and (B) knew
or should have known that, but for a mistake
concerning the identity of the proper party, the
7
1190846
action would have been brought against the party,
or
"(4) relation back is permitted by principles
applicable to fictitious party practice pursuant to
Rule 9(h)[, Ala. R. Civ. P.]."4
In Ex parte Profit Boost Marketing, this Court considered a situation
similar to the one in the present case. The plaintiffs in that case added a
new defendant to the action, rather than substituting a defendant for an
incorrectly named defendant or a fictitiously named defendant, after the
limitations period had expired. In holding that Rule 15(c)(3) was
inapplicable, this Court explained that Rule 15(c)(3) "applies to a
plaintiff's attempt to amend in order to correctly identify a defendant
included in or contemplated by the plaintiff's original complaint." Profit
Boost Mktg., 254 So. 3d at 870.
4Rule 9(h), Ala. R. Civ. P., provides that, "[w]hen 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."
8
1190846
Jordan contends that, unlike the plaintiffs in Profit Boost Marketing
who did not meet the elements of Rule 15(c)(3), she has satisfied the
requirements of the rule. Despite Jordan's assertions, it is undisputed
that the original complaint did not designate fictitiously named
defendants as parties and that Jordan's amended complaint added the
Dails as parties, rather than substituting them for incorrectly named
parties, after the limitations period had expired, while maintaining her
claims against Tyner, the original defendant. Thus, it is apparent that the
Dails were not "included in or contemplated by [Jordan's] original
complaint." Profit Boost Mktg., 254 So. 3d at 870. Accordingly, Rule
15(c)(3) does not apply to permit Jordan's amended complaint to relate
back to the filing of her original complaint.
Moreover, as this Court noted in Profit Boost Marketing, Rule
15(c)(3) "limits application of the relation-back principles to situations
where the party added by the amendment received notice of the
commencement of the action either before the expiration of the applicable
limitations period or within 120 days of the filing of the complaint
initiating the action." Id. The Dails assert that they did not receive notice
9
1190846
of Jordan's original complaint before the expiration of the limitations
period or within 120 days of the filing of the complaint. Jordan responds
by asserting that the Dails were defendants in another action brought by
a different plaintiff stemming from the accident underlying Jordan's
action and that, therefore, the Dails would not be prejudiced by defending
against her claims. However, there is no indication that the Dails received
notice of the institution of this action within the periods prescribed by
Rule 15(c)(3), and Jordan does not assert that they did. Thus, even if Rule
15(c)(3) applied to the present case, the limitations of the rule would not
authorize the relation back of Jordan's amended complaint.
Relying on Dannelley v. Guarino, 472 So. 2d 983, 986 (Ala. 1985),
Jordan also argues that her amended complaint relates back because, she
says, although she knew the identity of the Dails at the time she filed the
original complaint because they were listed on the incident and offense
report, she did not know that the Dails caused her injuries until she
conducted discovery. Dannelley, however, is wholly distinguishable from
the present case. In Dannelley, the plaintiffs actually designated
fictitiously named parties in their original complaint, and they substituted
10
1190846
defendants for those fictitiously named parties in an amended complaint.
This Court specifically stated that "the substitution must relate back
under Rule 9(h), [Ala.]R.Civ.P., pursuant to Rule 15(c), [Ala.]R.Civ.P." Id.
at 984. Although it appears that Jordan is relying on the relation-back
principles under Rule 15(c)(4), Jordan does not cite that rule and, instead,
argues that Rule 9(h) is inapplicable because she knew the identities of
the Dails when she filed the original complaint.5 Insofar as Jordan relies
on Rule 15(c)(4), that rule is inapplicable because Jordan did not
substitute the Dails for fictitiously named defendants.
Further, it is undisputed that Jordan was aware of the Dails'
identities and of their involvement in the accident at the time she filed her
original complaint. Moreover, as noted above, the Dails asserted that the
incident and offense report identified Savannah Dail as the "prime
contributing unit" to the accident, and Jordan does not contest that
5Jordan also asserts, without citing any supporting authority, that
if she had designated fictitiously named parties in the original complaint
without believing there were other liable parties, the Dails would have
argued that the original complaint was a frivolous filing, thus potentially
subjecting her to damages under the Alabama Litigation Accountability
Act, §12-19-270 et seq., Ala. Code 1975.
11
1190846
assertion. In Ex parte VEL, LLC, 225 So. 3d 591, 602 (Ala. 2016), this
Court concluded that, because the plaintiff "was not ignorant of [a
defendant's] identity before the statute of limitations expired, [relation
back did not apply and] the circuit court had no discretion other than to
grant [the defendant's] summary-judgment motion in its favor on the
statute-of-limitations ground." This Court has repeatedly held that a
plaintiff who possesses information regarding a potential defendant's
identity has a duty to investigate to determine whether a cause of action
exists against that potential defendant. In Ex parte Ismail, 78 So. 3d 399,
408 (Ala. 2011), we concluded that relation-back principles did not apply
because the plaintiffs in that case, who possessed a doctor's name by
virtue of medical records, had notice that that doctor may have been
involved in the treatment of one of the plaintiffs and, thus, that the
plaintiffs were required to expend some effort to determine what
involvement that doctor had. In Weber v. Freeman, 3 So. 3d 825, 833 (Ala.
2008), this Court held that, where a plaintiff knew of a defendant's
involvement in her son's treatment, "it was incumbent upon her, before
the statute of limitations on her claim expired, to investigate and evaluate
12
1190846
the claim to determine who was responsible for [her son's] death."
Likewise, in Harmon v. Blackwood, 623 So. 2d 726, 727 (Ala. 1993), this
Court held that "the plaintiff failed to meet the criteria for invoking the
relation-back principles of Rule 9(h) and Rule 15(c)" because, even though
he knew the name of the physician and his involvement in treating his son
before the limitations period had expired, he did not investigate and
evaluate his claim to determine who was responsible and to ascertain
whether there was evidence of medical malpractice. In Ex parte Snow, 764
So. 2d 531, 537 (Ala. 1999), this Court held that, even though the plaintiff
in that case might not have known the significance of information he had
regarding two defendants' involvement in his injury, "it was incumbent
upon [him] to learn of that significance" before the limitations period
expired. Accordingly, even if Jordan had substituted the Dails for
fictitiously named defendants, Jordan's amended complaint would not
relate back to the filing of the original complaint because Jordan knew the
identities of the Dails and of their involvement in the accident but
neglected her duty to investigate to determine their potential liability for
her injury before the limitations period expired.
13
1190846
Conclusion
Jordan's amended complaint, insofar as Jordan asserted claims
against the Dails, does not relate back to the filing of the original
complaint under Rule 15(c). The Dails have demonstrated a clear legal
right to have Jordan's claims against them dismissed, and, accordingly,
the trial court is directed to dismiss Jordan's claims against the Dails.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, and
Mitchell, JJ., concur.
14 | April 23, 2021 |
e74bb207-5b66-4d11-98a2-4127ba4d696a | Ex parte Michael Eugene Wade. | N/A | 1200348 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200348
Ex parte Michael Eugene Wade. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Michael Eugene Wade v.
State of Alabama) (Blount Circuit Court: CC-15-214.60; Criminal Appeals :
CR-19-0924).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, W
ise, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
b444144f-c5fa-4cd2-81d5-b23e19ab3730 | Register v. Outdoor Aluminum, Inc. | N/A | 1200181 | Alabama | Alabama Supreme Court | Rel: May 7, 2021
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, 2020-2021
____________________
1200181
____________________
Laura Register
v.
Outdoor Aluminum, Inc.
Appeal from Geneva Circuit Court
(CV-18-900062)
BOLIN, Justice.
1200181
Laura Register appeals from a summary judgment entered in favor
of Outdoor Aluminum, Inc., as to her claim alleging retaliatory discharge
in violation of § 25-5-11.1, Ala. Code 1975. We reverse and remand.
Facts and Procedural History
Register was employed by Outdoor Aluminum as a laborer. As an
employee of Outdoor Aluminum, Register signed a form that provided:
"As an employee of Outdoor Aluminum, you are entitled to
compensation for any injury you receive while on the job. If
you are injured, proper procedure must be followed to receive
this compensation.
"1. In the event of an injury, you must notify your
supervisor within 24 hours.
"2. You must receive treatment from an approved doctor.
Our company doctor is Dr. Kraft. With an alternate company
doctor as Dr. Cosper.
"3. You must submit to a drug test at the time of initial
treatment/examination.
"Failure to abide by the above procedures could result in loss
of job and compensation benefits."
Paul Rose, Outdoor Aluminum's production manager, developed a
"Notice of Disciplinary Action Form." The form outlined a three-step
warning process concerning disciplinary actions against employees. The
2
1200181
first warning results in employee counseling, the second warning results
in a three-day suspension, and the third warning results in termination
of employment. One of the grounds for disciplinary action listed in the
form is absenteeism.
The record reflects the following facts. On October 20, 2016,
Register, as part of her employment, laid out metal material, drilled or
punched holes in the material, and deburred1 and cut the material.
Register punched holes in the metal material with a hydraulic-press
machine. The hydraulic press became misaligned and was not punching
through the metal. When Register attempted to fix the press, the press
exploded, causing a two-inch long and half-inch thick piece of metal to
strike Register on the head above her right eye and temple. Register
reported the incident to her supervisor, Roger Wise. She told Wise she
needed to go to the hospital. Another employee drove Register to the
hospital where she was treated in the emergency room.
1According to testimony in the record, deburring removes
imperfections from machined metal.
3
1200181
As a result of the incident, Register's neck and head were injured
and she had headaches, blurred vision, dizziness, balance problems, and
pain. Register sought workers' compensation benefits and medical
treatment from Outdoor Aluminum. Dr. Christopher Cosper, one of the
doctors approved by Outdoor Aluminum, treated Register.
Sandy Redding was assigned as Register's nurse case manager to
facilitate Register's treatment. A nurse case manager schedules certain
appointments and may go to appointments with the patient. The case
manager ensures that the doctor's orders regarding treatment, such as
attending physical therapy, are carried out.
Dr. Cosper treated Register as Outdoor Aluminum's authorized
physician. As part of his treatment, Dr. Cosper referred Register to other
physicians for certain procedures and treatment. Dr. Cosper released
Register to work light duty in March 2017, but Register's symptoms
worsened after returning to work. Register returned to Dr. Cosper, who
restricted her from working in early April 2017. Dr. Cosper referred
Register to Dr. Jeremiah Maddox for treatment of her continued neck pain
and headaches. Dr. Maddox concluded that Register was not a candidate
4
1200181
for surgery in relation to her neck injury and scheduled her for a
functional-capacity evaluation ("FCE") on June 20, 2017. Dr. Maddox
also referred Register to other treatment providers for epidural injections
and physical therapy. Dr. Joshua Meyers, who administered the epidural
injections, restricted Register from work until she could be given a
neurological examination.
On June 6, 2017, Rose, Outdoor Aluminum's production manager,
contacted Redding, Register's nurse case manager, concerning Register's
work status. Redding responded that she had attended Register's
appointment with Dr. Maddox on June 5, 2017, and that Dr. Maddox had
ordered Register to remain off duty until Register received the results of
the FCE. Redding stated that, once Dr. Maddox received the FCE
results, Redding was to make a follow-up appointment for Register with
Dr. Maddox so that he could go over the results with her. Redding stated
that she would be at the appointment with Register and would notify Rose
of the outcome immediately afterwards. Rose sent an e-mail to Redding,
asking: "Just when will this happen? This is dragging out way past its
time." Before Redding responded, Rose sent a second e-mail stating:
5
1200181
"I guess I want to know what's taking so long to get
through all of this? The last time I spoke with anyone, the
appointment yesterday was going to be to release her. We
seem to be just going from one place to another TRYING to
find a place that will say she's disabled. She has no trouble
going to yard sales and such.[2] It seems light duty is easier
than that."
Redding responded that she understood Rose's frustration. She also
sent Rose the work-status report that Dr. Maddox had given Register at
the appointment on June 5, 2017. On June 20, 2017, Register underwent
the FCE as ordered by Dr. Maddox. On June 26, 2017, Redding e-mailed
Rose and told him that the FCE had been completed and that it normally
took 10 days to receive an FCE report. She also stated that she would let
Rose know when the report was in and when Register had her follow-up
appointment with Dr. Maddox.
On July 18, 2017, Register had a follow-up appointment with Dr.
Cosper concerning her neurological symptoms. Dr. Cosper referred
Register to Dr. Meyers again for pain management, and Dr. Cosper wrote
an excuse restricting Register from returning to work until July 27, 2017.
2The record reflects that Rose had gathered this information by
viewing postings on Register's social-media accounts.
6
1200181
On July 20, 2017, at 3:44 p.m., Rose e-mailed Redding asking if there
had been any update on Register's condition since her FCE on June 20,
2017. That same day, at 4:36 p.m., Redding forwarded Register's FCE
report to Rose, noting that, based on the report, Dr. Maddox had released
her to full duty with zero impairment. Sometime after that and before
July 21, 2017, at 8:55 a.m., Rose had a telephone conversation with
Redding. In an e-mail to Outdoor Aluminum staff dated July 21, 2017, at
8:55 a.m., Rose wrote:
"Here is the final report on Laura Register. I called Ms.
Redding and she told me that according to the report,
[Register] should have been back to work already. She has
assured me that Worker's Comp payments have been stopped.
"After I read all this, I will compose a letter and mail to
[Register] and tell her that we have considered her to have
cancelled her insurance.
"Does that meet with everyone's approval?"
On July 21, 2017, Rose sent Register a letter terminating her
employment. The letter provided as follows:
" I received the attached report yesterday via email from
Ms. Sandy Redding, with Carlisle and Associates.
7
1200181
"In the report, dated 6/25/2017, item 7 on page 2
indicates that you were recommended to be released within
physician discretion. On page 12 of the same report it was
found that you have a recommended impairment of 0% of your
whole person. That page is dated 6/27/17 and Dr. Maddox
certified that it was medically correct on 6/28/17.
"With the knowledge of this report, I can conclude that
you should have reported back to work on 6/29/17. Instead,
you have had no contact with either your supervisor, myself or
Outdoor Aluminum, Inc., and you have never reported back to
work in the approximately 3 weeks since this report.
"Regrettably, it is obvious to me that you no longer wish
to be employed here, and with that in mind, as of today
7/21/17, you have been terminated, due to lack of attendance.
"Your health insurance has been canceled as of this date
also.
"In the next few days you will receive information from
either Outdoor Aluminum or BCBS on how you can continue
your health insurance coverage should you so desire."
At the time Rose sent that letter, Register had neither received a
copy of her FCE report nor met with Dr. Maddox regarding the FCE
results as Redding had indicated was necessary. It is undisputed that
Register had been restricted from returning to work until July 27, 2017,
by Dr. Cosper.
8
1200181
On June 27, 2018, Register sued Outdoor Aluminum seeking
workers' compensation benefits and damages for retaliatory discharge.
The parties engaged in discovery.
On May 22, 2020, Outdoor Aluminum filed a motion for a summary
judgment regarding Register's retaliatory-discharge claim, arguing that
Register cannot show that her workers' compensation claim was the sole
motivating factor behind the termination of her employment. Specifically,
Outdoor Aluminum argued that Rose had been unaware that Dr. Cosper
had restricted Register from work until July 27, 2017. Without Rose's
knowledge of the work restriction, Outdoor Aluminum argued, Register's
alleged absenteeism was a valid basis for her discharge and her workers'
compensation claim could not be construed as the sole reason for the
termination of Register's employment. Outdoor Aluminum asserted that
Redding had not told Rose of and had not sent Rose any information
regarding Dr. Cosper's work restriction. Outdoor Aluminum also argued
that it did not terminate Register 's employment until nine months after
she had sought workers' compensation benefits and that, therefore, there
is no proximity between Register's seeking benefits and Outdoor
9
1200181
Aluminum's terminating her employment. Outdoor Aluminum argued
that there was no evidence indicating that it had a negative attitude
toward Register "regarding her injured condition." Although Outdoor
Aluminum had a policy regarding attendance, Rose testified that it was
Outdoor Aluminum's policy to retain discretion to skip steps in its policy
if needed. Outdoor Aluminum also asserted that there was no evidence
indicating that other employees had been discharged for filing a workers'
compensation claim. Lastly, Outdoor Aluminum argued that it had a
legitimate nonretaliatory reason for terminating Register because she had
not returned to work after being released by Dr. Maddox.
On June 15, 2020, Register filed a response to the summary-
judgment motion, arguing that summary judgment was inappropriate
because, she said: (1) Outdoor Aluminum had failed to follow its own
policies and procedures when it discharged Register; (2) Outdoor
Aluminum’s negative attitude toward Register and her maintaining her
workers’ compensation claim was evident in the e-mail exchange between
Rose and Redding; (3) Outdoor Aluminum discharged Register for lack of
attendance despite the fact she was being held out of work by an
10
1200181
authorized treating physician on the date of her discharge; and (4)
Outdoor Aluminum had failed to conduct even the most cursory of
investigations with regard to the return-to-work order issued by its own
treating physician before discharging Register and, instead, had taken
"the first perceived opportunity it could find to terminate Register for a
'legitimate reason' because it felt her workers' compensation claim was
'dragging out way past its time' and she appeared to be 'TRYING to find
a place that will say she's disabled.' " Register presented testimony
indicating that Redding denied telling Rose that Register should have
been back to work after Rose had received the results of the FCE.
Redding also testified that it was not within her purview to advise Rose
and that she had referred Rose to the workers' compensation claims
adjuster. Register presented evidence indicating that Outdoor
Aluminum had received medical bills and treatment notes from Dr.
Cosper, that an employee of Outdoor Aluminum had sent e-mails to the
claims adjuster, and that an employee of Outdoor Aluminum had
forwarded Dr. Cosper's office notes from July 18, 2017, to the claims
adjuster.
11
1200181
On June 17, 2020, the trial court held a hearing on the summary-
judgment motion. On July 2, 2020, the trial court entered an order
granting Outdoor Aluminum's summary-judgment motion as to Register's
retaliatory-discharge claim. On August 4, 2020, Register filed a motion
requesting that the summary judgment as to the retaliatory-discharge
claim be certified as final pursuant to Rule 54(b), Ala. R. Civ. P., and, that
same day, the trial court certified the summary judgment on Register's
retaliatory-discharge claim as final. Register timely appealed.
Standard of Review
"This Court reviews a summary judgment de novo,
'apply[ing] the same standard of review as the trial court.' Slay
v. Keller Indus., Inc., 823 So. 2d 623, 624 (Ala. 2001). 'In order
to enter a summary judgment, the trial court must determine:
1) that there is no genuine issue of material fact, and 2) that
the moving party is entitled to a judgment as a matter of law.'
Williams v. Ditto, 601 So. 2d 482, 484 (Ala. 1992). This Court
must view the evidence in the light most favorable to, and
draw all reasonable inferences in favor of, the nonmoving
party. Nationwide Prop. & Cas. Ins. Co. v. DPF Architects,
P.C., 792 So. 2d 369, 372 (Ala. 2001)."
Gustin v. Vulcan Termite & Pest Control, Inc., [Ms. 1190255, Oct. 30,
2020] ___ So. 3d ___, ___ (Ala. 2020).
Discussion
12
1200181
"As a general rule in Alabama, an employment contract
for an indefinite period is terminable at will by either party,
with or without cause or justification. Hoffman–LaRoche, Inc.
v. Campbell, 512 So. 2d 725 (Ala.1987). The Legislature
carved out an exception to that general rule, however, with
regard to a discharge of an employee in the aftermath of the
filing of a workers' compensation claim. Section 25-5-11.1
provides:
" '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....' "
Flint Constr. Co. v. Hall, 904 So. 2d 236, 246 (Ala. 2004)(emphasis added).
This Court, in Alabama Power Co. v. Aldridge, 854 So. 2d 554, 563
(Ala. 2002), explained:
"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 employment based solely upon the
employee's on-the-job injury and the filing of a workers'
compensation claim."
"Because direct evidence demonstrating that an employer has
discharged an employee solely because the employee has filed a workers'
compensation claim is not often easily obtained, an employee may
13
1200181
establish by circumstantial evidence that the actual reason for the
discharge was the employee's filing of a workers' compensation claim."
Hatch v. NTW, Inc., 35 So. 3d 623, 628 (Ala. Civ. App. 2009) (citing
Aldridge, 854 So. 2d at 564-55).
In Aldridge, this Court clarified the proof necessary for establishing
a prima facie case of retaliatory discharge and that a plaintiff must prove
a causal connection between the workers' compensation claim and the
subsequent discharge. The Aldridge Court noted that our prior caselaw
had not addressed in detail the evidence a plaintiff must present to show
that he or she was discharged solely because of his or her workers'
compensation claim. The Court acknowledged that proximity in time
between the filing of the workers' compensation claim and the termination
of employment may be a typical beginning point, but is not the sole means
of showing a causal connection, and held that such temporal proximity
alone is insufficient. 854 So. 2d at 565. The Aldridge Court also cited
Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex. App. 2002). In
Chhim, the Texas court set out examples of circumstantial evidence that
14
1200181
may be sufficient to establish a causal link between termination of
employment and the filing of a workers' compensation claim, including:
"1) knowledge of the compensation claim by those making the
decision on termination, 2) expression of a negative attitude
toward the employee's injured condition, 3) failure to adhere
to established company policy, 4) discriminatory treatment in
comparison to similarly situated employees, 5) sudden changes
in an employee's work performance evaluations following a
workers' compensation claim, and 6) evidence that the stated
reason for the discharge was false."
Chhim, 76 S.W.3d at 218.
In Foster v. North American Bus Industries, Inc., 236 So. 3d 70 (Ala.
2017), the plaintiff suffered a head injury when she was drilling a hole in
a steel plate. After her accident, the plaintiff was terminated from her
employment, and she commenced a retaliatory-discharge action. The trial
court entered a summary judgment in favor of her employer. This Court
reversed the summary judgment, concluding that the plaintiff had
presented a prima facie case of retaliatory discharge by demonstrating,
among other things, that there was a relatively close proximity between
the date on which the plaintiff had filed a claim for workers' compensation
benefits and the date of her discharge. She was injured on July 10, 2012,
15
1200181
and filed her claim for benefits on that date; she was discharged on July
30, 2012. Additionally, there was no dispute that those who had made the
decision to terminate the plaintiff's employment, two employees in
particular, had known about the plaintiff's workers' compensation claim.
The plaintiff also presented evidence, albeit disputed, indicating that a
supervisor had expressed a negative attitude about the plaintiff''s injured
condition. There was also a conflict in the evidence as to whether the
employer had adhered to its attendance policy in terminating the
plaintiff's employment. The Court addressed the employer's stated
reason for terminating the plaintiff's employment and whether that
reason was a pretext for terminating the plaintiff's employment. The
Court concluded that there were numerous issues of fact precluding
summary judgment and that the jury should resolve whether the plaintiff
had complied with the employer's attendance policy; whether the
employer had a previous practice of deviating from the requirements of its
attendance policy; whether the employer had been aware that the
plaintiff's absences were related to her work injury; and whether negative
comments made by the plaintiff's supervisor, suggesting that the plaintiff
16
1200181
might have to find another job because of her injury, indicated the motive
behind the plaintiff's termination. Foster, 236 So. 3d at 77.
In the present case, it is undisputed that Register was employed by
Outdoor Aluminum, that she was injured while she was performing her
job, and that Outdoor Aluminum was aware of her injury. Viewing the
evidence in a light most favorable to Register, the nonmovant, as this
Court must do, Gustin, ___ So. 3d at ___, it is clear that she has presented
substantial evidence indicating that Outdoor Aluminum terminated her
employment solely for maintaining her workers' compensation claim.
Register complied with Outdoor Aluminum's requirement that she seek
treatment for her workplace injury from one of their approved doctors,
Dr. Cosper. It was Dr. Cosper who excused Register from work until July
27, 2017. As part of Dr. Cosper's treatment, Register was referred to
other physicians for specific treatment and therapy. Outdoor Aluminum
was clearly aware that Dr. Cosper was Register's treating physician,
because Outdoor Aluminum had required Register to use Dr. Cosper for
treatment of her on-the-job injury. Register presented evidence
indicating that an employee of Outdoor Aluminum had forwarded Dr.
17
1200181
Cosper's office notes to the workers' compensation claims adjuster and
that the same employee had been sent Rose's e-mail regarding Register's
discharge.
When Dr. Maddox, to whom Register was referred to by Dr. Cosper,
ordered an FCE, Rose expressed a negative attitude toward Register's
workers' compensation claim, suggesting that Register was searching for
a physician who would conclude that she was disabled. Rose also
expressed a negative attitude toward Register's maintaining her workers'
compensation claim by stating that Register had no problem going to yard
sales and that light-duty work would be easier than attending such sales.
Rose's statements, which he made before the FCE occurred, indicate
either that he did not believe that Register's injuries were serious or that
he believed that she was exaggerating her injuries to stay out of work.
The evidence indicates that Outdoor Aluminum did not comply with
its own disciplinary policy when it terminated Register's employment.
Outdoor Aluminum had a disciplinary-action form that set out its policy.
Although Rose's deposition testimony provides that complying with the
disciplinary process set out on the form was discretionary and that
18
1200181
Outdoor Aluminum reserved the right to skip steps in its disciplinary
process, nothing on the form indicates that Outdoor Aluminum reserved
such discretion. Cf. Hale v. Hyundai Motor Mfg. Alabama, LLC, 86 So.
3d 1015, 1028 (Ala. Civ. App. 2012)(indicating that company had an
express policy in its handbook regarding serious violations of its
attendance policy but that, in certain circumstances, such as situations
involving falsification of employment records like bereavement-leave
requests, the company would forgo its policy). In its brief to this Court,
Outdoor Aluminum makes several arguments regarding the informality
of the process set out on the disciplinary-action form and that Register's
interpretation of the form, taken to its logical conclusion, is unworkable,
"lacks any basis in Alabama law, fundamental business operations, or
even common sense." Outdoor Aluminum's brief, p. 20. However, Outdoor
Aluminum authored the form, and whether the process set out on the
disciplinary-action form applies in this case is an issue for a jury to decide.
The e-mails between Rose and Redding indicate that Rose was, at
the very least, aware that Register should meet with Dr. Maddox in a
follow-up appointment so that he could discuss the results of the FCE with
19
1200181
Register. Register did not receive a copy of the FCE report, much less
have the results of the FCE explained to her by Dr. Maddox, before her
employment was terminated. Additionally, Redding testified that she did
not tell Rose that Register should have been back at work. Instead,
Redding testified that advising Rose on termination was not within her
job purview and that she had referred Rose to the claims adjuster. That
testimony, coupled with Rose's e-mail exchange with Redding, create a
question of fact for a jury regarding whether Register's discharge was in
retaliation for having pursued a workers' compensation claim.
We recognize that Outdoor Aluminum claims to have terminated
Register's employment based on her alleged absenteeism. However,
Register has presented substantial evidence that there are genuine issues
of material fact that should be resolved by a jury, including (1) whether
Outdoor Aluminum reserved the right to skip steps in its disciplinary
process and whether Register understood whether it had the discretion to
do so; (2) whether the e-mail exchange between Rose and Redding shows
a negative attitude toward Register's workers' compensation claim and
whether Redding advised Rose that Register should have already returned
20
1200181
to work before she was discharged; (3) whether Outdoor Aluminum was
aware, or should have been aware, of Dr. Cosper's restriction on Register's
returning to work; (4) and whether Rose was looking for a reason to
discharge Register for maintaining her workers' compensation claim. In
regard to issue (4), Outdoor Aluminum's express reason for discharging
Register was absenteeism, even though Outdoor Aluminum's approved
treating physician determined that Register should not return to work
until July 27, 2017. A jury should determine whether absenteeism was
a pretextual reason for the discharge.
Based on the foregoing, we reverse the judgment of the trial court
and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur.
Sellers, J., concurs in the result.
Parker, C.J., dissents.
Mitchell, J., recuses himself.
21 | May 7, 2021 |
44298537-d488-4928-853f-23c9a98f96ee | Ex parte Danny Dewayne Adams, Jr. | N/A | 1200319 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200319
Ex parte Danny Dewayne Adams, Jr. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Danny
Dewayne Adams, Jr. v. State of Alabama) (Jefferson Circuit Court:
CC-17-3094; Criminal Appeals :
CR-18-1190).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Wise, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
1d4f57c7-38e1-4075-ab1c-46221b858ef4 | State of Alabama v. Two White Hook Wreckers and Two Red Rollback Wreckers, seized from Gary Lamar Smith, Jr., and Gary Lamar Smith, Sr. | N/A | 1190180 | Alabama | Alabama Supreme Court | in t h e s u pr e me c o ur t o f A
l a ba ma
April 23, 2021
1190180
State of Alabama v. Two White Hook Wreckers and Two Red
Rollback Wreckers, seized from Gary Lamar Smith, Jr., and Gary Lamar
Smith, Sr. (Appeal from Mobile Circuit Court: CV-19-902705).
c e r t i f i c a t e o f j u d g m e n t
WHEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on April 23, 2021:
Application Overruled. No Opinion. PER CURIAM - Parker, C.J., and
Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell, JJ.,
concur.
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on December 11, 2020:
R eversed And Rem anded. PER CURIAM - Parker, C.J., and Bolin, Shaw,
Sellers, Mendheim, and Mitchell, JJ., concur. Wise, Bryan, and Stewart, JJ.,
concur specially.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said cou rt.
W itness my hand this 23rd day of April, 2021.
Clerk, Supreme Court of Alabama | April 23, 2021 |
9cfb1940-9e12-4edb-8e25-d89cc37ff2f5 | Teresa Sheryl Christian, individually and as the administratrix of the Estate of Joseph Brian Christian, deceased v. Cenlar, F.S.B., and Federal National Mortgage Association | N/A | 1190513 | Alabama | Alabama Supreme Court | REL: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190513
Teresa Sheryl Christian, individually and as the administratrix of the
Estate of Joseph Brian Christian, deceased v. Cenlar, F.S.B., and Federal
National Mortgage Association (Appeal from Tuscaloosa Circuit Court:
CV-13-901524).
1190560
Cenlar, F.S.B., and Federal National Mortgage Association v. Teresa
Sheryl Christian, individually and as the administratrix of the Estate of
Joseph Brian Christian, deceased (Appeal from Tuscaloosa Circuit Court:
CV-13-901524).
MENDHEIM, Justice.
1190513 -- AFFIRMED. NO OPINION.
1190560 -- AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | March 12, 2021 |
aabb76cc-abea-414c-b302-5da7a0f19e88 | Ex parte Steven Obrien Mason. | N/A | 1200395 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200395
Ex parte Steven Obrien Mason. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Steven Obrien Mason v.
State of Alabama) (Mobile Circuit Court: CC-18-4507; Criminal Appeals :
CR-18-1102).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Sellers, J. -
Parker, C.J., and Bolin, Wise, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
8c61d69e-2787-474e-aa15-6a5eac48321d | Ex parte Shaniah Woods. | N/A | 1190901 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1190901
Ex parte Shaniah Woods. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Shaniah Woods v. State of
Alabama) (Mobile Circuit Court: CC-14-828.61; Criminal Appeals :
CR-18-1215).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
6de9de27-a87b-4b4f-ab7e-552310e58cb5 | Ex parte Larry G. Coker. | N/A | 1200328 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1200328
Ex parte Larry G. Coker. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Larry G. Coker v. State of
Alabama) (Pell City Circuit Court: CC-07-285.61; Criminal Appeals :
CR-20-0180).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 19, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of March, 2021.
Clerk, Supreme Court of Alabama | March 19, 2021 |
e29442ba-6f4d-4123-bfea-89859b4aa302 | Ex parte Corderious Domini McLellan. | N/A | 1190703 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190703
Ex parte Corderious Domini McLellan. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Corderious
Domini McLellan v. State of Alabama) (Jefferson Circuit Court:
CC-13-3316.60; Criminal Appeals :
CR-18-0712).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
42520cee-7064-4c8a-bb6a-2345f62a72e8 | Ex parte Z.W.E. | N/A | 1190748 | Alabama | Alabama Supreme Court | REL: March 26, 2021
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, 2020-2021
____________________
1190748
____________________
Ex parte Z.W.E.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CIVIL APPEALS
(In re: Z.W.E.
v.
L.B.)
(Jackson Juvenile Court, CS-19-2.01;
Court of Civil Appeals, 2180796)
1190748
PER CURIAM.
Z.W.E. ("the alleged father"), the alleged father of a child ("the
child") of L.B. ("the mother"), petitioned this Court for a writ of certiorari
to review the Court of Civil Appeals' decision in Z.W.E. v. L.B., [Ms.
2180796, June 5, 2020] ___ So. 3d ___ (Ala. Civ. App. 2020), affirming the
Jackson Juvenile Court's dismissal of the alleged father's petition to
establish the paternity of the child. We granted certiorari review to
consider, as an issue of first impression, whether the term "child," as used
in § 26-17-204(a)(5), Ala. Code 1975, a part of the Alabama Uniform
Parentage Act ("the AUPA"), § 26-17-101 et seq., Ala. Code 1975, includes
unborn children.
Facts and Procedural History
The alleged father and the mother were in a dating relationship and
cohabited from February 2018 until August 2018, during which time the
child was conceived. According to the alleged father's filing in the juvenile
court,
"from the time of conception the [mother] held the child out to
be the child of the [alleged father], announced it publicly and
shared in preparation for the birth of the child with the
2
1190748
[alleged father] and his family. [The alleged father] at no time
denied paternity of the child and expressed both privately and
publicly his desire to act as a father to the child, ... he held the
child out as his own and provided financial and emotional
support to the mother during the pregnancy."
However, according to the alleged father, beginning in mid-November
2018, the mother "refused to have any contact with the [alleged father] or
his family." Subsequently, on November 14, 2018, the mother married
Z.A.F. ("the husband").
On November 19, 2018, the alleged father filed a petition seeking to
establish the paternity of the unborn child. On December 26, 2018, the
child was born. On February 15, 2019, the mother filed a motion to
dismiss the alleged father's petition. The mother argued that the husband
is the presumed father of the child under § 26-17-204(a)(1), Ala. Code 1975
("A man is presumed to be the father of a child if ... he and the mother of
the child are married to each other and the child is born during the
marriage."), and that the husband had persisted in his status as the legal
father of the child. Accordingly, the mother argued, the husband's
presumption of paternity could not be challenged. See § 26-17-607(a), Ala.
Code 1975 ("If the presumed father persists in his status as the legal
3
1190748
father of a child, neither the mother nor any other individual may
maintain an action to disprove paternity.").
On April 3, 2019, the alleged father filed a response to the mother's
motion to dismiss. Although the alleged father failed to cite the applicable
portion of the AUPA, the alleged father argued that he, too, is a
presumptive father of the child:
"The [alleged father] asserts that from the time of conception
the [mother] held the child out to be the child of the [alleged
father], announced it publicly and shared in preparation for
the birth of the child with the [alleged father] and his family.
[The alleged father] at no time denied paternity of the child
and expressed both privately and publicly his desire to act as
a father to the child, therefore [the alleged father] asserts that
he is the presumed father because prior to the marriage he
held the child out as his own and provided financial and
emotional support to the mother during the pregnancy."
Section 26-17-204(a)(5) is the applicable portion of the AUPA that is at
issue in this case, and it states:
"(a) A man is presumed to be the father of a child if:
"....
"(5) while the child is under the age of
majority, he receives the child into his home and
openly holds out the child as his natural child or
otherwise openly holds out the child as his natural
4
1190748
child and establishes a significant parental
relationship with the child by providing emotional
and financial support for the child."
Based on his argument that he is also a presumptive father of the child,
the alleged father requested an evidentiary hearing to present evidence
proving that he had persisted in his status as a legal father of the child
and, in addition, requested that, upon establishing that he, too, is a
presumptive father of the child, the juvenile court hold an evidentiary
hearing pursuant to § 26-17-607(b), Ala. Code 1975, which states:
"(b) A presumption of paternity under this section may
be rebutted in an appropriate action only by clear and
convincing evidence. In the event two or more conflicting
presumptions arise, that which is founded upon the weightier
considerations of public policy and logic, as evidenced by the
facts, shall control. The presumption of paternity is rebutted
by a court decree establishing paternity of the child by another
man."
(Emphasis added.)
On May 23, 2019, the juvenile court entered an order granting the
mother's motion to dismiss the alleged father's paternity action. The
juvenile court determined that the husband is the presumed father of the
child under § 26-17-204(a)(1) and that the husband had persisted in his
5
1190748
status as the legal father of the child. The juvenile court's order states
that the juvenile court held a hearing before entering its order and that,
at the hearing, it "heard oral argument from both counsel and took the
matter under advisement based on the pleadings herein." Based on the
above-quoted language from the juvenile court's order, it is apparent that
the juvenile court did not hold an evidentiary hearing to determine
whether the alleged father persisted in his claimed status as a legal father
of the child, and, thus, concluded that the alleged father is not a
presumptive father of the child. Obviously, having concluded that the
alleged father is not a presumptive father of the child, there was no reason
for the juvenile court to hold an evidentiary hearing under § 26-17-607(b)
as requested by the alleged father. After his postjudgment motion was
denied, the alleged father appealed to the Court of Civil Appeals.
Before the Court of Civil Appeals, the alleged father argued that the
juvenile court had erred in refusing to hold an evidentiary hearing to
determine whether he persisted in his claimed status as a legal father of
the child under § 26-17-204(a) and, assuming that the alleged father
would have demonstrated his status as a presumptive father under
6
1190748
§ 26-17-204(a), in refusing to hold a subsequent evidentiary hearing
pursuant to § 26-17-607(b). The alleged father argued that he is a
presumptive father under § 26-17-204(a) based on the facts that he held
out the child as his own since the child's conception, that he provided both
financially and emotionally for the mother and the child during the
mother's pregnancy, and that he has persisted in his status as the legal
father of the child. Essentially, the alleged father argued that his prebirth
conduct toward and support of the child and his persistence in his
parenthood is sufficient to establish himself as a presumptive father of the
child under § 26-14-204(a).
The Court of Civil Appeals rejected the alleged father's argument.
The Court of Civil Appeals stated that, "[a]s § 26-17-204(a) is currently
written, none of the provisions conferring the status of a presumed father
applies to the facts of this case." Z.W.E., ___ So. 3d at ___. More
specifically, the Court of Civil Appeals concluded that
"the AUPA as written currently does not provide for the
recognition of prebirth emotional and financial support as a
basis for conferring the status of presumed father, and this
court cannot expand § 26-17-204(a) to shoehorn the facts of
this case into fitting the provisions that do allow for such a
7
1190748
status. ... Accordingly, we reject the alleged father's assertion
that his prebirth support of the child confers upon him the
status of a presumed father."
Id. at ___. Based on the above-quoted conclusion, the Court of Civil
Appeals went on to further state that the alleged father lacked capacity
to challenge the husband's status as the legal father of the child and, thus,
concluded that the juvenile court had not erred in granting the mother's
motion to dismiss the alleged father's paternity action. The Court of Civil
Appeals specifically stated: "As we have previously held, the alleged
father is not a 'presumed father' under the AUPA. Accordingly, the
alleged father had no capacity to bring this action. The trial court was
never required or even authorized [under § 26-17-607(b)] to weigh the
competing presumptions the alleged father attempts to establish." Id. at
___.
Judge Moore dissented from the Court of Civil Appeals' decision,
stating, among other things, that he disagreed "that the alleged ... father
cannot, under the facts asserted, be considered a presumed father of the
child." Z.W.E., ___ So. 3d at ___ (Moore, J., dissenting). Judge Moore
concluded that the alleged father could be a presumed father under
8
1190748
§ 26-17-204(a)(5) if the alleged father could prove his allegations that "the
alleged ... father ..., while the mother was pregnant, ... cohabited with the
mother, ... openly acknowledged his paternity of the child, and ... provided
the mother emotional and financial support." Z.W.E., ___ So. 3d at ___
(Moore, J., dissenting). Judge Moore explained that the word "child," as
that term is used in § 26-17-204(a)(5), includes an unborn child. In so
concluding, Judge Moore relied upon (1) this Court's decision in Ex parte
Ankrom, 152 So. 3d 397, 411 (Ala. 2013), in which this Court, "when
discussing the plain meaning of the word 'child' in the context of the
criminal chemical-endangerment statute, held that the undefined term
'child' in that statute includes an unborn child," and (2) "Act No. 2019-189,
Ala. Acts 2019, which is codified as Ala. Code 1975, § 26-23H-1 et seq., and
which defines a 'child' as '[a] human being, specifically including an
unborn child in utero at any stage of development, regardless of viability.'
§ 26-23H-3(7), Ala. Code 1975." Z.W.E., ___ So. 3d at ___ (Moore, J.,
dissenting). Judge Edwards also dissented and agreed with Judge Moore
that the alleged father could be a presumed father under § 26-17-204(a)(5)
if the facts alleged by the alleged father, set forth above, are proven true.
9
1190748
The alleged father petitioned this Court for certiorari review of the
Court of Civil Appeals' decision, and we granted certiorari review to
consider as an issue of first impression whether the term "child," as used
in § 26-17-204(a)(5), includes unborn children.
Standard of Review
This Court set forth the following applicable standard of review in
Ex parte G.L.C., 281 So. 3d 401, 404 (Ala. 2018):
" ' " '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 S.L.M., 171 So. 3d 673, 677 (Ala.
2014) (quoting Ex parte Helms, 873 So. 2d 1139, 1143 (Ala.
2003), quoting in turn Ex parte Toyota Motor Corp., 684 So. 2d
132, 135 (Ala. 1996))."
Discussion
The issue to be decided in this case is whether the alleged father
may be determined to be a presumptive father under § 26-14-204(a)(5)
based on his prebirth conduct toward and support of the child. The Court
of Civil Appeals determined that, as a matter of law, the alleged father
could not be a presumed father under § 26-14-204(a)(5) because the term
10
1190748
"child," as defined in the AUPA, does not include unborn children. Based
on its conclusion that the alleged father cannot be considered a presumed
father under the facts asserted in this case, the Court of Civil Appeals
determined that the alleged father lacked capacity to challenge the
husband's presumption of paternity. Accordingly, the more specific
question presented in this case is whether the term "child" as defined in
the AUPA is broad enough to include unborn children. If so, it would be
possible for the alleged father to establish himself as a presumed father
under § 26-14-204(a)(5) based on his prebirth conduct toward and support
of the child. Assuming the alleged father were able to do so, he would
then have the capacity to challenge the husband's presumption of
paternity.
The issue to be decided in this case is ultimately one of statutory
interpretation. In interpreting statutes, we apply the following principles:
" ' " 'The cardinal rule of statutory interpretation is to
determine and give effect to the intent of the legislature as
manifested in the language of the statute.' " ' Ex parte Moore,
880 So. 2d 1131, 1140 (Ala. 2003) (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)). 'In any
case involving statutory construction, our inquiry begins with
11
1190748
the language of the statute, and if the meaning of the statutory
language is plain, our analysis ends there.' Ex parte
McCormick, 932 So. 2d 124, 132 (Ala. 2005). 'Principles 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). '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.' IMED
Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344, 346 (Ala.
1992). Moreover, '[w]ords used in a statute must be given
their natural, plain, ordinary, and commonly understood
meaning,' IMED Corp., 602 So. 2d at 346, and '[b]ecause the
meaning of statutory language depends on context, a statute
is to be read as a whole ... [and s]ubsections of a statute are in
pari materia.' Ex parte Jackson, 614 So. 2d 405, 406 (Ala.
1993)."
Mitchell v. State, [Ms. CR-17-1144, July 12, 2019] ___ So. 3d ___, ___ (Ala.
Crim. App. 2019).
As set forth above, § 26-17-204(a)(5) states:
"(a) A man is presumed to be the father of a child if:
"....
"(5) while the child is under the age of
majority, he receives the child into his home and
openly holds out the child as his natural child or
otherwise openly holds out the child as his natural
child and establishes a significant parental
12
1190748
relationship with the child by providing emotional
and financial support for the child."
The AUPA defines the term "child" as "an individual of any age whose
parentage may be determined under [the AUPA]." § 26-17-102(5), Ala.
Code 1975.
In his brief to this Court, the alleged father notes that the AUPA
provides a definition of the term "child" in § 26-17-102(5), but he provides
no analysis of that definition. Instead, the alleged father looks to various
other cases and statutes in an effort to interpret the word "child" in a
manner that includes unborn children. Essentially, the alleged father,
without first concluding that the actual language of § 26-17-102(5) is
ambiguous, urges this Court to engage in statutory construction in
interpreting § 26-17-102(5). However, as noted in Mitchell, " '[i]f 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.' IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So. 2d 344,
346 (Ala. 1992)." ___ So. 3d at ___. Before entertaining the alleged
father's statutory-construction arguments, we must first analyze the
13
1190748
actual language of the applicable statutes to determine if an ambiguity
exists requiring statutory construction.
In her brief to this Court, the mother argues that the plain language
used in § 26-17-102(5) to define "child" precludes unborn children. As
noted above, § 26-17-102(5) states: " 'Child' means an individual of any
age whose parentage may be determined under [the AUPA]." In order to
be considered a "child" under the AUPA, the parentage of the individual
in question must be able to be determined under the AUPA. The mother
notes that the term "determination of parentage" is defined in the AUPA
as "the establishment of the parent-child relationship by the execution of
a valid acknowledgment of paternity under Article 3 [of the AUPA] or
adjudication by the court." § 26-17-102(7). Under the plain language of
§ 26-17-102(7), a determination of parentage is accomplished in one of two
ways: (1) by executing a valid acknowledgment of paternity under
Article 3 of the AUPA or (2) by adjudication of the court. Therefore, an
individual is considered a "child" under the AUPA only if his or her
parentage may be determined in one of the two ways set forth
immediately above.
14
1190748
Concerning the establishment of paternity by an acknowledgment
of paternity under Article 3 of the AUPA, the mother notes that § 26-17-
304(a), Ala. Code 1975, states, in pertinent part: "An acknowledgment of
paternity may be signed at the birth of the child or any time prior to the
child's nineteenth birthday." (Emphasis added.) As the mother argues in
her brief to this Court, under the plain language of § 26-17-304(a), an
acknowledgment of paternity may be signed, at the earliest, at the birth
of the child and, at the latest, on the day prior to the child's 19th birthday.
Section 26-17-304(a) creates a window of time during which an
acknowledgment of paternity may be signed. The mother's interpretation
of the plain language of § 26-17-304(a) is correct. The parentage of a child
cannot be determined under Article 3 of the AUPA before the birth of that
child. Accordingly, because an acknowledgment of paternity cannot be
signed before the birth of a child, this particular path does not allow for
an interpretation of the term "child" that includes unborn children.
Concerning the establishment of paternity by an "adjudication by the
court," it is significant that " '[d]etermination of parentage' means the
establishment of the parent-child relationship by ... adjudication by the
15
1190748
court." § 26-17-102(7) (emphasis added). In order to be considered an
"adjudication by the court," such adjudication must actually establish the
parent-child relationship. The mother notes that § 26-17-611, Ala. Code
1975, states, in pertinent part: "A proceeding to determine parentage may
be commenced before the birth of the child, but may not be concluded until
after the birth of the child." (Emphasis added.) The plain language of
§ 26-17-611 clearly indicates that, although a proceeding to determine
parentage of a child may be commenced before the child's birth, that
proceeding may not be concluded until after the child is born. Section 26-
17-102(6), Ala. Code 1975, defines "commence" as "to file the initial
pleading seeking an adjudication of parentage in the appropriate court of
this state." (Emphasis added.) Under the terms defined by the AUPA,
§ 26-17-611 permits only the filing of an initial pleading seeking the
adjudication of parentage; it does not allow for the final establishment of
the parent-child relationship by adjudication until after the child is born.1
1We note that subsections (1) through (3) of § 26-17-611, Ala. Code
1975, allow for "service of process," "discovery," and "collection of
specimens for genetic testing" to occur before the birth of a child.
However, as noted by the Uniform Comment to § 26-17-611, those are
16
1190748
Accordingly, the mother argues, because the parent-child relationship
cannot be finally established by adjudication by the court until after the
child is born, this path also does not allow for an interpretation of the
term "child" that includes unborn children.
We find the mother's argument convincing. The meaning of the
language of the relevant portions of the AUPA, discussed above, is plain.
Accordingly, we need not engage in statutory construction, and, thus, we
need not consider the alleged father's various arguments that pertain to
cases and statutes that do not address the actual language used in the
AUPA. If the term "child" was undefined by the AUPA, as it was in the
chemical-endangerment statute at issue in Ex parte Ankrom, then this
Court's definition of "child" in Ex parte Ankrom would probably be
controlling. However, the legislature defined the term "child" in the
"initial steps [that] may be completed prior to the birth of the child" in
recognition of the fact that "establishing a parental relationship as quickly
as possible may be in the best interest of a child." Completion of those
"initial steps" does not result in the establishment of the parent-child
relationship; they are simply part of the proceeding to determine
parentage. The establishment of the parent-child relationship does not
occur until the matter is adjudicated by the court, which, by the plain
language of § 26-17-611, cannot occur until after the birth of the child.
17
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AUPA in such a way that excludes unborn children from the definition of
"child." Our task in this case is not to interpret the word "child" generally
but to interpret the legislature's definition of "child" set forth in
§ 26-17-102(5). As argued by the mother, the legislature's narrow
definition of the term "child" excludes unborn children. In such a
circumstance, as the Court of Civil Appeals noted, it is for the legislature,
not this Court, to change the definition of the term "child" if it so desires.2
2Concerning parentage proceedings before birth, we note that, unlike
Alabama, other states have chosen to pass statutes concerning this issue
that are not identical to Section 611 of the Uniform Parentage Act (2002).
For instance, Colorado's statute concerning this issue states: "Proceedings
under [Colorado's version of the Uniform Parentage Act] may be
commenced prior to the birth of a child." Colo. Rev. Stat. § 19-4-105.5(3).
Colorado included no language indicating that such an action could not be
concluded until after the birth of the child whose parentage is at issue,
and Colorado courts are free to adjudicate an unborn child's parentage.
See, e.g., People in Interest of G.C.M.M., [No. 19CA2326, Oct. 29, 2020]
___ P.3d ___ (Colo. App. 2020). Arizona is another state whose statute
permits the determination of an unborn child's parentage. Arizona's
statute specifically states that "[a] delay in determining paternity in an
action commenced before the birth of the child shall be granted until after
the birth of the child for purposes of paternity tests if any party to the
proceedings requests." Ariz. Rev. Stat. § 25-807.B. Of course, if no delay
is requested, the Arizona court would be free to determine an unborn
child's parentage.
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Based on the foregoing, we cannot say that the Court of Civil
Appeals erred in holding that the term "child," as defined in the AUPA,
does not include unborn children. As a result, even accepting the alleged
father's undisputed facts as true (that he brought the unborn child into his
home, held the child out as his own, and provided financial and emotional
support for the child), the alleged father cannot demonstrate that he is a
presumed father under § 26-17-204(a)(5) because the child in this case, for
whom the alleged father provided prebirth care and support, did not fit
within the AUPA's definition of "child" before the child's birth; the child's
parentage could not have been determined under the AUPA before the
child's birth. Accordingly, the Court of Civil Appeals did not err in
ultimately concluding that the alleged father lacked capacity to challenge
the husband's paternity of the child.3
3We note that the alleged father argues before this Court that he is
entitled to an evidentiary hearing in order to demonstrate that he has
persisted in his presumption of paternity. See the alleged father's brief
at p. 12 ("The material question before this [C]ourt is whether or not a
man can hold himself out to be the presumed father of a child prior to
birth thus affording him the opportunity of an evidentiary hearing to
present evidence of his persistence." (emphasis added)). The alleged
father also argues that an evidentiary hearing is required to weigh the
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Conclusion
The Court of Civil Appeals did not err in concluding that the plain
language of the AUPA does not include unborn children within its
definition of "child." Accordingly, the alleged father cannot be considered
a presumed father under § 26-17-204(a)(5) and, thus, does not have the
capacity to challenge the husband's status as a presumed father of the
child.
allegedly competing presumptions of paternity of the alleged father and
the husband. However, any argument in the father's brief to this Court
that the juvenile court erred in refusing to conduct an evidentiary hearing
is premised on the alleged father's argument that he is a presumed father
of the child. As demonstrated above, the alleged father has failed to
demonstrate that the Court of Civil Appeals erred in concluding that the
alleged father cannot establish a presumption of paternity based on his
prebirth conduct toward and support of the child.
We further note that Judge Moore stated in his dissent to the Court
of Civil Appeals' opinion that, "[r]egardless of whether [the alleged father]
is a presumed father, an alleged biological father has a right to an
evidentiary hearing to determine whether the husband of the mother is,
in fact, persisting in his status as the presumed father of the child ...."
Z.W.E., ___ So. 3d at ___ (Moore, J., dissenting). The alleged father does
not make any such argument before this Court concerning the type of
evidentiary hearing discussed by Judge Moore.
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AFFIRMED.
Mendheim and Stewart, JJ., concur.
Bolin* and Sellers, JJ., concur specially.
Parker, C.J., and Wise* and Bryan, JJ., concur in the result.
Shaw and Mitchell, JJ., dissent.
*Although Justice Bolin and Justice Wise were not present at oral
argument in this case, they have listened to the audiotape of the oral
argument.
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SELLERS, Justice (concurring specially).
Z.W.E. ("the alleged father") has not demonstrated to my satisfaction
that the Court of Civil Appeals erred in concluding that he is not a
"presumed father" under the Alabama Uniform Parentage Act ("the Act"),
§ 26-17-101 et seq., Ala. Code 1975. I write specially to note my concerns
regarding application of the Act to a person in the alleged father's
circumstances.
In Ex parte Presse, 554 So. 2d 406 (Ala. 1989), this Court adopted
the position former Chief Justice Torbert had taken when dissenting in
Ex parte Anonymous, 472 So. 2d 643 (Ala. 1985). The Court in Presse
held that, when a child has a presumed father, the Act precludes another
man from challenging the presumed father's paternity. Many of the
"presumed-father" cases are commenced after a child is born and after a
paternal bond has developed between the child and his or her presumed
father. In the present case, the alleged father, before the child's birth and
before any bond could have formed between the child and the mother's
husband, sued under the Act in an effort to establish himself as the legal
father of the child. Because the Act allows for a prebirth action to
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establish paternity, it makes logical sense that such an action would be
continued until after the birth of the child for genetic testing to establish
paternity. But the language of the Act taking away the capacity of an
alleged father to challenge paternity when a presumed father exists
thwarts such an effort in the circumstances presented here.
It appears to me that the Act might violate constitutional principles
if the parental rights of a biological father can be extinguished
unilaterally by a mother's marrying another man immediately before the
birth of the biological father's child. Even if a biological father avails
himself of the prebirth procedure set out in the Act, he apparently has no
legal recourse to counter the mother's actions. At some point, the Court
may need to consider further the rights of a biological father who claims
paternity before his child's birth.
Bolin, J., concurs.
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PARKER, Chief Justice (concurring in the result).
The main opinion properly rejects the arguments of Z.W.E. ("the
alleged father"), which fail to adequately deal with the language of the
Alabama Uniform Parentage Act ("the AUPA"), § 26-17-101 et. seq., Ala.
Code 1975. Yet I believe that a compelling textual argument can be made
that the AUPA's definition of "child" includes unborn children. Because
such an argument is absent in this case, I would not conclusively hold that
unborn children are excluded.
The AUPA defines "child" as "an individual of any age whose
parentage may be determined under the [AUPA]." § 26-17-102(5). The key
phrase "may be determined" does not specify a particular chronological
relationship between a determination of parentage and the individual's
status as a "child." The phrase could narrowly mean "may presently be
determined," as the main opinion concludes, but it could also mean "may
subsequently be determined," as Justice Shaw argues. Indeed, the latter
meaning is consistent with this and other courts' interpretations of verb
phrases containing the word "may." See Morgan Cnty. Nat'l Bank v.
Terry, 213 Ala. 313, 313, 104 So. 762, 763 (1925) (holding that mortgage
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provision securing "all ... indebtedness and demands which may be a
proper charge against me and in favor of [the mortgagee] bank" applied
only to subsequently created debts (emphasis added)); In re Van
Vechten's Estate, 218 Iowa 229, 251 N.W. 729, 731 (1933) (holding that,
under statute that required refund of estate tax "[w]hen, within five years
after the payment of the tax ..., a court of competent jurisdiction may
determine" that the tax was improper, the words "may determine" meant
that a claimant must file refund action within five years, such that trial
court's determination then became a future legal possibility; the words did
not mean that claim must be finally adjudicated within five years
(emphasis added)); People v. Peals, 476 Mich. 636, 640, 720 N.W.2d 196,
198 (2006) (holding that definition of "firearm" as "a weapon from which
a dangerous projectile may be propelled" included weapons that could not
presently propel, but were designed to propel, projectiles (emphasis
added)); Ex parte American Fertilizing Co., 122 S.C. 171, 115 S.E. 236,
236 (1922) (holding that mortgage securing amounts that "may be due"
was not limited to present debts but also included subsequent debts);
Wallace v. Quick, 156 S.C. 248, 153 S.E. 168, 181 (1930) (holding that
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deed conveying "any other interest I may be entitled to" included
subsequently acquired interests (emphasis added)); Marion Cnty. Lumber
Co. v. Hodges, 96 S.C. 140, 79 S.E. 1096, 1096-97 (1913) (holding that
conveying all timber on plantation, "except such as may be necessary for
plantation use," meant that "enough timber should be left to supply both
the present and future needs of the plantation" (emphasis added));
England v. Valley Nat'l Bank of Phoenix, 94 Ariz. 267, 272, 383 P.2d 183,
186 (1963) ("Generally, the term 'may be' is construed as meaning in the
future."). Under this broader meaning, a presently unborn child whose
parentage may be determined in the future would qualify as a "child."
When a statute's meaning is less than clear, we ordinarily look to
the surrounding statutory scheme for clues. See Boutwell v. State, 288 So.
2d 1015, 1020 (Ala. 2007); Tucker v. Molden, 761 So. 2d 996, 999 (Ala.
2000). As the main opinion explains, there are two ways to determine
parentage: by a father's acknowledgment of paternity and by court
adjudication. § 26-17-102(7). As for the first way, although paternity can
be acknowledged only after the child is born, § 26-17-304(a), the AUPA
allows hospitals to provide the acknowledgment paperwork to an alleged
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father before the birth, § 26-17-315(a)(1)-(2). Similarly, although paternity
can be adjudicated by a court only after the birth, § 26-17-611, the AUPA
allows an alleged father to file the paternity action and take other
litigation steps before the birth, id. From these provisions, it appears that
the AUPA recognizes that, before birth, an individual exists whose
parentage may be determined in the future.
When faced with an unclear statute, we also try to interpret the
statute harmoniously with statutes that address related subjects. See
Bandy v. City of Birmingham, 73 So. 3d 1233, 1242 (Ala. 2011); Dunn v.
Alabama State Univ. Bd. of Trs., 628 So. 2d 519, 523 (Ala. 1993),
overruled on other grounds by Watkins v. Board of Trs. of Alabama State
Univ., 703 So. 2d 335 (Ala. 1997). By law, a father of an unborn child
conceived out of wedlock may take responsibility for the child by filing a
notice with the putative father registry. § 26-10C-1(a)(2) and (c). If he fails
to file, he forfeits his parental rights. § 26-10C-1(I). Similarly, the
adoption code's consent-by-abandonment provision requires a biological
father to support his unborn child or risk losing his rights. § 26-10A-
9(a)(1). If a father's parental rights can be lost by failing to claim or
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support an unborn child, it would stand to reason that a father's parental
rights could also be established by claiming and supporting an unborn
child. Indeed, it would seem strange to give legal effect to a father's taking
responsibility (or not) under the putative-father and adoption statutes, but
not to give legal effect to it under the parentage statutes.
Finally, substantial doubt about the meaning of a statute may
sometimes be resolved in the light of settled precepts of public policy and
jurisprudence. See Old Republic Ins. Co. v. Lanier, 644 So. 2d 1258, 1260-
62 (Ala. 1994); Allgood v. State, 20 Ala. App. 665, 667, 104 So. 847, 848
(1925); 82 C.J.S. Statutes § 472 (2009); 73 Am. Jur. 2d Statutes § 91
(2012). In Alabama, the people and the Legislature have established a
clear public policy of recognizing unborn children as individual persons.
Enshrined in our constitution is "the public policy of this state to recognize
and support the sanctity of unborn life and the rights of unborn children."
Art. I, § 36.06(a), Ala. Const. 1901 (Off. Recomp.). The homicide statutes
define "person" as "including an unborn child in utero at any stage of
development." § 13A-6-1(a)(3), Ala. Code 1975. The recently enacted
Alabama Human Life Protection Act uses the same words in defining
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"person." § 26-23H-3(7). The death-penalty statutes prohibit execution of
a woman who is "with child." § 15-18-86. The statute governing health-
care advance directives prevents a pregnant woman's wish to decline
medical treatment from being carried out until the child is born. § 22-8A-
4(h) ("Advance Directive for Health Care," § 3). The intestacy statutes
provide an unborn child inheritance rights. § 43-8-47. And the trust code
allows a court to appoint a guardian for an "unborn individual." § 19-3B-
305(a).
This Court's cases have reflected the same general recognition that
unborn children are human beings who have rights and are the objects of
others' responsibilities and rights. We have held that unborn children are
protected by the capital-murder statute, Ex parte Phillips, 287 So. 3d
1179, 1189-94, 1199-1201 (Ala. 2018), the wrongful-death statute, Mack
v. Carmack, 79 So. 3d 597 (Ala. 2011), the chemical-endangerment
statute, Ex parte Ankrom, 152 So. 3d 397 (Ala. 2013), and an automobile-
insurance policy, Alabama Farm Bureau Mut. Cas. Ins. Co. v. Pigott, 393
So. 2d 1379 (Ala. 1981). Against this background of policy and precedent,
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arguably the AUPA's phrase "may be determined" should be interpreted
in a way that recognizes the personhood of the unborn.
If these or similar arguments had been made in this case, this Court
might have been persuaded. But the textual arguments were not made,
so this Court cannot reverse based on them. See Ex parte Kelley, 296 So.
3d 822, 829 (Ala. 2019). Accordingly, I concur in affirming the judgment
of the Court of Civil Appeals, but I would leave for another day the
correctness of its interpretation of the AUPA's definition of "child."
Wise, J., concurs.
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BRYAN, Justice (concurring in the result).
I concur in the result of the main opinion, but I agree with the
sentiments expressed by Justice Sellers in his special writing.
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SHAW, Justice (dissenting).
I disagree that the plain language of the Alabama Uniform
Parentage Act ("AUPA" or "the Act"), Ala. Code 1975, § 26-17-101 et seq.,
excludes an unborn child from its definition of the word "child."
Therefore, I would not affirm the decision of the Court of Civil Appeals,
Z.W.E. v. L.B., [Ms. 2180796, June 5, 2020] ___ So. 3d ___ (Ala. Civ. App.
2020), and I respectfully dissent.
In this case, Z.W.E. ("the alleged father") claimed to be the father of
an unborn child and sought a court determination of parentage under the
AUPA. Although numerous issues were discussed by the Court of Civil
Appeals in its decision affirming the trial court's dismissal of that action,
the main opinion here addresses the narrow issue of whether, for purposes
of the AUPA, one could be a presumed father of an unborn child.
The Alabama Code at times includes an unborn child within the
definition of "child" or equates the two. See, e.g., Ex parte Ankrom, 152
So. 3d 397, 421 (Ala. 2013) ("[T]he plain meaning of the word 'child' in
[Ala. Code 1975, § 26-15-3.2,] includes an unborn child."), and Ala. Code
1975, § 26-23H-3(7) (defining both "unborn child" and "child" as "[a]
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human being, specifically including an unborn child in utero at any stage
of development, regardless of viability"). The AUPA, however, defines
"child" as follows: "'Child' means an individual of any age whose
parentage may be determined under [the AUPA]." Ala. Code 1975,
§ 26-17-102(5).
By referring to an "individual of any age," it is clear that the AUPA
does not limit the definition of "child" to a specific age range. It is
suggested that the remaining phrase, "whose parentage may be
determined under [the AUPA]," refers to a "determination of parentage,"
a phrase separately defined in Ala. Code 1975, § 26-17-102(7). That Code
section states: "'Determination of parentage' means the establishment of
the parent-child relationship by the execution of a valid acknowledgment
of paternity under Article 3 [of the AUPA] or adjudication by the court."
The document required for an acknowledgment of paternity under Article
3 of the Act "may be signed at the birth of the child or any time prior to
the child's nineteenth birthday," Ala. Code 1975, § 26-17-304(a), and a
court proceeding to determine parentage "may not be concluded until after
the birth of the child," Ala. Code 1975, § 26-17-611. Because these two
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procedures to establish parentage cannot be completed until after the
birth of a child, the main opinion concludes that parentage of an unborn
child may not be determined and that, therefore, an unborn child is not a
"child" for the purposes of § 26-17-102(5).
I disagree that this reading is required by the plain language of the
Act. Although § 26-17-102(7) specifically defines the phrase
"determination of parentage," the definition of "child" in § 26-17-102(5)
does not use that phrase but, instead, refers only to whether an
individual's parentage "may" be determined.4 The definition of "child"
does not specify whether it requires that parentage must immediately be
capable of determination as opposed to whether parentage "may"
subsequently be capable of determination under the Act.
The reading of the Act adopted by the main opinion requires that, to
conclude that an individual's "parentage may be determined" under
4Given that the Alabama Constitution specifically protects the rights
of the unborn, see Art. I, § 36.06, Ala. Const. 1901 (Off. Recomp.), I see no
dispute that an unborn child is someone other than an "individual" or any
other indication that the AUPA considers an unborn child as anything
other than a human being.
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§ 26-17-102(5), an individual's parentage must be capable of being
established within the timing mechanisms of the acknowledgment
procedures mentioned above (after birth and before the age of 19) or, in a
court-adjudication proceeding, "after birth" when the proceeding could be
concluded. Under that rationale, in regard to an "adjudication by the
court," "parentage may be determined" would mean that a court's
determination of parentage must be capable of immediate resolution in
order for the individual subject to the proceeding to be considered a child.
However, a less narrow reading of the phrase "an individual of any
age whose parentage may be determined under [the AUPA]" would be that
the individual's parentage "may," or could, be established simply at some
point in a parentage-determination proceeding and that the individual is
one to whom the Act would apply. The Act specifically allows a
determination proceeding to be commenced before an individual is born,
although it cannot be concluded until after birth: "A proceeding to
determine parentage may be commenced before the birth of the child, but
may not be concluded until after the birth of the child." § 26-17-611. An
unborn child, who is an "individual of any age," can -- "may" -- have
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parentage determined in the proceeding, but, only because of a detail of
court procedure, the proceeding cannot be "concluded" until after birth.5
Both before birth and after birth, it is the same "individual of any age"
whose parentage is determined. The individual's status changes from
unborn to born before the proceeding is concluded, but that same
individual's parentage will in fact be determined. The word "may" in the
phrase "may be determined" refers to whether a determination of an
individual's, including an unborn individual's, parentage is capable of
being made in a proceeding and not to when such a determination must
be made.6
5The plain language of § 26-17-611 does not prevent an interlocutory
or preliminary determination of parentage being made before birth;
instead, the proceeding simply may not be "concluded," which I presume
means the entry of a final judgment, until after birth.
6There are other limitations on the availability of parentage-
determination proceedings even if an individual is born, including
restrictions on "standing" to maintain the action, Ala. Code 1975, § 26-17-
602; necessary parties, Ala. Code 1975, § 26-17-603; venue, Ala. Code
1975, § 26-17-605; personal jurisdiction, Ala. Code 1975, § 26-17-604; who
may bring an action when the "child" is an adult, Ala. Code 1975, § 26-17-
606(a)(1); and actions for the purpose of obtaining support after the child
reaches the age of 19, Ala. Code 1975, § 26-17-606. In cases that do not
comply with these restrictions, parentage of an individual "may" not be
determined or "may" not be determined in a particular court.
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Given the above, I disagree that the plain language of the Act
excludes an unborn child from the definition of "child" found within it.
That said, the alleged father does not sufficiently raise and argue the
correct statutory analysis discussed above, and it thus cannot be used as
a basis upon which to reverse the Court of Civil Appeals' decision. Hart
v. Pugh, 878 So. 2d 1150, 1157 (Ala. 2003) ("[W]hen we are asked to
reverse a lower court's ruling, we address only the issues and arguments
the appellant chooses to present.") Instead, the gist of the alleged father's
argument is that the word "child" is undefined and that, therefore, the
Court must employ a plain-meaning analysis, as it did in Ankrom, supra,
to similarly determine the meaning of the word. However, as noted above,
the word is defined in § 26-17-102(5), and the meaning of the language
used in that definition requires us to engage in a specific analysis that is
not addressed by the parties. Under these circumstances, and based on
a careful review of the proceedings in both the trial court and the Court
of Civil Appeals, I would quash the writ of certiorari and indicate that,
"[i]n quashing the writ of certiorari, this Court does not wish to be
understood as approving all the language, reasons, or statements of law
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in the Court of Civil Appeals' opinion. Horsley v. Horsley, 291 Ala. 782,
280 So. 2d 155 (1973)." Ex parte Pope, McGlamry, Kilpatrick, Morrison
& Norwood, P.C., 266 So. 3d 1083, 1084 (Ala. 2018). I thus respectfully
dissent.
If the result in this case was not intended by the legislature, then it
is the province of that body to change or clarify the AUPA. There might
be strong policy concerns that would justify preventing a challenge to the
parentage of a child born into a marriage. The legislature could, however,
elect less restrictive means to ensure that such policy concerns are
addressed only in cases in which they would actually apply.
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MITCHELL, Justice (dissenting).
I respectfully dissent. In my view, the definition of "child" in the
Alabama Uniform Parentage Act ("AUPA"), § 26-17-101 et seq., Ala. Code
1975, includes an unborn child. I discuss below how I arrive at that
conclusion and how I would direct the Court of Civil Appeals to instruct
the trial court on remand.
The AUPA provides its own definition of "child." § 26-17-102(5), Ala.
Code 1975. When the Legislature defines a term, we may not disregard
that definition and substitute our own. See Tanzin v. Tanvir, ___ U.S.
___, ___, 141 S. Ct. 486, 490 (2020); Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts § 36, at 225
(Thomson/West 2012) (explaining the interpretive-direction canon). This
principle applies even when the statutory definition " 'varies from a term's
ordinary meaning.' " Tanzin, ___ U.S. at ___, 141 S. Ct. at 490 (citation
omitted); see also Scalia & Garner, Reading Law § 36, at 225. A "child"
is defined in the AUPA as "an individual of any age whose parentage may
be determined under [the AUPA]." § 26-17-102(5). Therefore, this is the
definition we must apply.
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There are two ways that a child's parentage "may be determined"
under the AUPA. § 26-17-102(7). The first is by the execution of a valid
acknowledgment of paternity. Id. As the main opinion correctly notes, an
acknowledgment of paternity cannot be accomplished until after the child
is born. See § 26-17-304(a), Ala. Code 1975 ("An acknowledgment of
paternity may be signed at the birth of the child or any time prior to the
child's nineteenth birthday."). The second way parentage may be
determined is by court adjudication. § 26-17-102(7). Although an
adjudication proceeding may begin before the birth of a child, it "may not
be concluded until after the birth of the child." § 26-17-611, Ala. Code
1975.
The verb phrase "may be determined" within the definition of "child"
has divided the members of this Court. The main opinion holds that this
verb phrase is in the present tense -- i.e., it refers only to an individual
whose parentage may presently be determined under the AUPA. ___ So.
3d at ___. Under that interpretation, an unborn child does not fall within
the definition because his or her parentage cannot presently be
determined under the two permissible methods. Id. Chief Justice Parker,
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on the other hand, sees an ambiguity. Id. at ___ (Parker, C.J., concurring
in the result). In his view, it is possible that the verb phrase also covers
an individual whose parentage may subsequently be determined under
the AUPA. Id. Under that interpretation, an unborn child falls within the
definition because his or her parentage may be determined at a future
time. Justice Shaw also acknowledges these alternative possible
meanings of the phrase "may be determined," though he does not frame
the issue as an ambiguity. Id. at ___ (Shaw, J., dissenting). Rather, he
believes that the plain language of the AUPA includes an unborn child.
Id. I agree that the AUPA's definition of "child" includes an unborn child,
but I arrive there by a different path.
The Legislature has provided interpretive directions for word tenses.
Within certain bounds, the Legislature may provide the courts with
directions for interpreting statutes. See, e.g., Ex parte N.G., [Ms.
1190390, Sept. 4, 2020] ___ So. 3d ___, ___ (Mitchell, J., dissenting)
(noting that the Legislature, by statute, has prohibited the use of the titles
of sections in the Alabama Code in statutory interpretation). And under
the interpretive-direction canon, courts should follow such legislative
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instructions to the extent that they do not violate the separation-of-powers
doctrine. Id. Here, an interpretive-direction statute directly addresses
the temporal issue raised by Chief Justice Parker and Justice Shaw.
Section 1-1-2, Ala. Code 1975, states that "[w]ords used in this Code in the
past or present tense include the future, as well as the past and present."
(Emphasis added.) So, even if the main opinion is correct that the verb
phrase "may be determined" is in the present tense, that phrase also
"include[s] the future" based on the instructions provided by the
Legislature.7
7Although neither party identified § 1-1-2 as the missing piece to this
interpretive puzzle, that is no reason to ignore it. As a general matter, it
is true that we "will not reverse a trial court's judgment based on
arguments not made to this Court." Ex parte Kelley, 296 So. 3d 822, 829
(Ala. 2019). But "our duty, first and foremost, is to the correctness of law,"
which "is not something the parties ultimately dictate to us." Ex parte
Vanderwall, 201 So. 3d 525, 541 (Ala. 2015) (Murdock, J., concurring
specially); see also Blue Cross & Blue Shield of Alabama v. Hodurski, 899
So. 2d 949, 960 (Ala. 2004) (" '[L]itigants' failure to address the legal
question from the right perspective does not render us powerless to work
the problem out properly. A court of appeals may and often should do so
unbidden rather than apply an incorrect rule of law to the parties'
circumstances.' " (quoting Williams-Guice v. Board of Educ. of Chicago, 45
F.3d 161, 164 (7th Cir.1995))). Thus, we should not constrain ourselves
to the narrow interpretive theories the parties have advanced if doing so
causes us to misinterpret a statute.
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Looking through the lens of § 1-1-2, the phrase "may be determined"
means both "may presently be determined" and "may later be
determined." Therefore, because an unborn child's parentage may be
determined under either acknowledgment of paternity or court
adjudication once he or she is born, an unborn child qualifies as a "child"
under the AUPA.
That said, Z.W.E. must still show that the statutory presumption he
relies upon can be proven as to an unborn child. The presumption that he
says applies to him arises if,
"while the child is under the age of majority, he receives the
child into his home and openly holds out the child as his
natural child or otherwise openly holds out the child as his
natural child and establishes a significant parental
relationship with the child by providing emotional and
financial support for the child."
§ 26-17-204(a)(5), Ala. Code 1975 (emphasis added). This section --
particularly the last clause -- raises a host of questions. As a threshold
matter, there is the question of whether a father can emotionally and
financially support an unborn child. Assuming that's possible, Z.W.E.
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must then establish that he met the requirements of § 26-17-204(a)(5),
entitling him to his own presumption of paternity.
We are ill-equipped to answer these questions now. Whether it is
scientifically possible for a father to emotionally support an unborn child
is complicated. Absent any evidence or briefing before us about these
matters, it would be imprudent to make that call at this point. But those
issues can and should first be decided by a trial court, before which expert
witnesses can be called, an evidentiary record can be developed, and
arguments can be made for a proper appeal.
Accordingly, I would reverse the decision of the Court of Criminal
Appeals and direct it to remand this case to the trial court for a hearing
to determine whether Z.W.E. can and did meet the requirements to claim
the presumption under § 26-17-204(a)(5). If the trial court finds that it is
possible for the requirements of § 26-17-204(a)(5) to be met before a child
is born and that Z.W.E. met those requirements, it should then make a
determination of whose presumption of paternity -- Z.W.E.'s or Z.A.F.'s --
is based "upon the weightier considerations of public policy and logic, as
evidenced by the facts." § 26-17-204(b).
44 | March 26, 2021 |
a66bedc8-1c9d-434f-9115-5b69afe42c22 | Brock v. Kelsoe | N/A | 1200141 | Alabama | Alabama Supreme Court | Rel: March 26, 2021
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, 2020-2021
____________________
1200141
____________________
Nel Brock
v.
Philip Kelsoe
Appeal from Morgan Circuit Court
(CV-18-20)
SELLERS, Justice.
Shirley Temple Carr Ralph ("Mrs. Ralph") executed a will naming
Philip Kelsoe ("the proponent") the executor and sole beneficiary of her
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estate. Mrs. Ralph's sister, Nel Brock, contested the will, arguing that
Mrs. Ralph had lacked the mental capacity to execute the will and that
the will was the product of undue influence on the part of the proponent.
The Morgan Circuit Court entered a summary judgment in favor of the
proponent, and Brock appealed. We reverse and remand.
I. Facts and Procedural History
Mrs. Ralph executed her will on March 21, 2017; she died on April
13, 2018, at the age of 76. Mrs. Ralph was predeceased by her husband
who died in January 2017 and two children -- both of whom had no issue.1
Immediately after Mr. Ralph died, the proponent, one of Mrs. Ralph's
neighbors, began assisting Mrs. Ralph with various tasks, including
taking her shopping, undertaking general household chores, helping her
refinance the mortgage on her house, driving her to doctors' appointments,
having her prescriptions filled, and dispensing all of her medications.
According to the proponent, Mrs. Ralph had asked him in March 2017 for
the recommendation of an attorney who could draft a power of attorney for
1Mrs. Ralph's son died in December 2001, and her daughter died in
August 2016.
2
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her. The proponent recommended Mark Johnson, made an appointment
for Mrs. Ralph to meet with Johnson, drove her to that appointment, and
waited in the lobby while she consulted with Johnson. On March 21, 2017,
the proponent drove Mrs. Ralph back to Johnson's office, at which time
she executed a power of attorney in favor of the proponent and a will
naming him executor and sole beneficiary of her estate.2 According to the
proponent, Mrs. Ralph never mentioned beforehand that she was
executing a will. The proponent stated that, after Mrs. Ralph executed the
will, she asked him to keep it, as well as the power of attorney, in the
proponent's safe. The proponent did not tell Mrs. Ralph's family about the
will. The proponent also indicated that Mrs. Ralph had added his name on
her checking account. At some point after Mrs. Ralph executed the will,
the proponent approved of or allowed one of his acquaintances, Kathy
Mitchell, to move into Mrs. Ralph's home. Mrs. Ralph signed a contract
2In the will, Mrs. Ralph devised all of her "real property" to the
proponent. Although Mark Johnson, the drafting attorney, testified that
Mrs. Ralph had wanted the proponent to have "everything," including her
personal property, the will did not include a residuary clause; Johnson
testified that the omission was unintentional.
3
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agreeing to pay Mitchell $600 a month to live with her, run errands, and
help around the house, etc. The agreement also provided that, after Mrs.
Ralph died, Mitchell would take possession of a specific vehicle owned by
Mrs. Ralph. After the death of Mrs. Ralph, the proponent petitioned the
Morgan Probate Court to admit the will to probate. Brock filed a will
contest, alleging that Mrs. Ralph had lacked the mental capacity to
execute the will because of "mind altering" medications she had been
prescribed and was taking at the time the will was executed. Brock also
argued that the will was the product of undue influence on the part of the
proponent. The will contest was transferred to the circuit court pursuant
to § 43-8-198, Ala. Code 1975. The proponent moved the circuit court for
a summary judgment, which Brock opposed. After a hearing, the circuit
court entered a summary judgment in favor of the proponent. Brock
appealed.
II. Standard of Review
This Court reviews a summary judgment de novo, and we use the
same standard used by the trial court to determine whether the evidence
presented to the trial court presents a genuine issue of material fact. Rule
4
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56(c), Ala. R. Civ. P.; Nettles v. Pettway, 306 So. 3d 873 (Ala. 2020). The
movant for a summary judgment has the initial burden of producing
evidence indicating that there is no genuine issue of material fact. Once
the movant produces evidence establishing a right to a summary
judgment, the burden shifts to the nonmovant to present substantial
evidence creating a genuine issue of material fact. We consider all the
evidence in the light most favorable to the nonmovant, indulging every
reasonable inference and resolving any doubts in the nonmovant's favor.
Id.
III. Analysis
A. Testamentary Capacity
The law presumes that every person of legal age has the capacity to
execute a will, and the person challenging the will has the burden of
proving a lack of testamentary capacity. Allen v. Sconyers, 669 So. 2d
113 (Ala. 1995). A testator has testamentary capacity when, at the time
the will is executed, the testator (1) knows his or her estate and the
property to be devised and bequeathed, (2) knows the natural objects of
his or her bounty, and (3) understands that he or she is making a will.
5
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Smith v. Vice, 641 So. 2d 785, 786 (Ala. 1994). The key inquiry is whether
the testator had testamentary capacity on the day the will was executed,
which may be inferred from a witness's observation of the testator's
mental and physical condition either before or immediately after execution
of the will. Fletcher v. DeLoach, 360 So. 2d 316 (Ala. 1978).
In this case, the evidence is conflicting regarding Mrs. Ralph's
mental state immediately before and at the time of the execution of the
will. In support of his motion for a summary judgment, the proponent
presented the deposition testimony of Mark Johnson, the attorney who
drafted the will. According to Johnson, when he met with Mrs. Ralph, he
was satisfied that she was legally competent to execute a will. Johnson
characterized Mrs. Ralph as "happy and pleasant" and stated that she
appeared lucid at the time she signed the will. Johnson stated that Mrs.
Ralph had told him that she wanted the proponent to have her entire
estate because the proponent "was a good neighbor." When questioned by
the proponent's attorney, Johnson stated that he had asked Mrs. Ralph
numerous qualifying questions, including whether she had children:
6
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"Q. Do you remember specifically what qualifying questions
you might have asked?
"A. Did she have any children? Did she -- where are they
living? I think [Mrs. Ralph said] they were living out of state,
I believe. And they never came around. She was kind of
getting ill about that, I believe. She was kind of upset at that
point. But you could tell that visually bothered her. And so --
then she wanted to leave [everything to the proponent]
because he was such a good neighbor, and he helped her so
much.
"....
"Q. Did you advise her ... that by not putting her relatives in
the will, they would not be entitled to disbursement under the
will?
"A. Yes, uh-huh. I think I also put [that] in the will, which is
pretty much my common standard practice, if I know the
children's names, it says intentionally omit the following."
Notably, Johnson's testimony regarding Mrs. Ralph's children is troubling
because Mrs. Ralph had no children living at the time she met with
Johnson and there is no declaration in the will regarding omitted children.
Therefore, it is not clear whether Mrs. Ralph actually told Johnson that
she had children who were living or whether Johnson simply did not recall
the entirety of his conversation with Mrs. Ralph when they met. More
critically, the will failed to comply with Mrs. Ralph's direction because
7
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there was no residuary clause to bequeath her personal property to the
proponent. The lack of clarity as to these material facts could lead a jury
to infer that Mrs. Ralph was unable to appreciate the division of her
property such that the will she signed was not a true expression of her
intentions, thus making summary judgment inappropriate.
In response to the proponent's summary-judgment motion, Brock
submitted the affidavit of Dr. David Clay Campbell, who had treated Mrs.
Ralph from December 2014 until April 2018, when she died. According to
Dr. Campbell, Mrs. Ralph experienced "extreme and debilitating grief"
after her husband died. He stated that she had been diagnosed with
"generalized anxiety disorder, fibromyalgia, chronic kidney disease,
hypertension, rheumatoid and osteoarthritis." He stated that, to treat
those conditions, he had prescribed several medications that induce
"mind-altering" effects, including Ambien, Percocet, Flexeril, Lyrica,
trazodone, and Xanax. Dr. Campbell described in detail the effects of
each of those drugs and stated that the use of all of them concurrently
renders the user incapable of possessing mental capacity for any act
beyond the most basic functions. Dr. Campbell explained that, while
8
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taking those type of medications, some people may appear alert and
awake and be able to converse at a basic level. He stated that, despite
such an outward appearance, "the cognitive functioning and memory of
this person would be severely impaired." Dr. Campbell indicated that, on
March 13, 2017, he examined Mrs. Ralph because she wanted to discuss
her medications. During that visit, Dr. Campbell stated, Mrs. Ralph
appeared "frail" and "disheveled," was exhibiting a "wobbly gait," and
reported that she had been falling at least once a week. He further
indicated that, at that time, she was suffering from "confusion, significant
weight loss [approximately 40 lbs.], fatigue, and weakness," and that she
was "depressed and anxious." Dr. Campbell stated that he had "explicitly"
discussed with Mrs. Ralph the medications she was taking, specifically
Ambien, Percocet, Lyrica, trazodone, and Xanax, and that she had
confirmed that she was taking those medications as prescribed. Dr.
Campbell finally stated that he understood that Mrs. Ralph had executed
a will on March 21, 2017, and that he had examined Mrs. Ralph again on
March 30, 2017, at which time she indicated that she was taking all of her
medications as prescribed. Finally, Dr. Campbell stated that, in his
9
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professional opinion, Mrs. Ralph was "incapable of knowingly executing
a legal document" such as will:
"During this time, Mrs. Ralph, in my professional
opinion, was incapable of knowingly executing a legal
document such as a Last Will and Testament. Her grief,
depression, her physical illnesses and the pain arising from
them, and her faithful use of the mind-altering medications
prescribed to her would, in my reasonable medical opinion,
render her mentally incapable of understanding what she was
doing."
Although Dr. Campbell did not examine Mrs. Ralph on March 21,
2017, the day she executed her will, his testimony cannot be discounted
because he examined her before and after that time and provided an
expert opinion on her general mental capacity. Given the conflicting
evidence from the drafting attorney and the treating physician, we
conclude that the question whether Mrs. Ralph possessed testamentary
capacity to execute the challenged will is a question of fact that is not
appropriate for resolution by a summary judgment. See Ex parte Helms,
873 So. 2d 1139 (Ala. 2003) (holding that (1) evidence of the testator's
consumption of Lortab before and after the date she executed her will, (2)
evidence of the effects and side effects of Lortab, and (3) evidence of the
10
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testator's physical pain and mental distress were sufficient to rebut the
legal presumption in favor of the testator's testamentary capacity and to
create a genuine issue of fact to be decided by the finder of fact); see also
Denson v. Moses, 2 So. 3d 847 (Ala. Civ. App. 2008) (holding that genuine
issue of material fact existed as to testamentary capacity based on doctor's
equivocal testimony questioning the testator's competency to execute will
and testimony of the drafter of the will who believed that the testator was
competent to execute will). Cf., however, Maxwell v. Dawkins, 974 So. 2d
282 (Ala. 2006) (affirming summary judgment in will contest, noting that
the contestant had failed to identify any evidence in the record, from a
medical expert or otherwise, indicating that medications such as Xanax,
Percocet, morphine, and Oxycontin had affected the testator's mental
acuity).
B. Undue Influence
In order to establish a prima facie case of undue influence, the
person contesting the will is required to offer evidence
"(1) that a confidential relationship existed between a favored
beneficiary and the testator; (2) that the influence of or for the
beneficiary was dominant and controlling in that relationship;
11
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and (3) that there was undue activity on the part of the
dominant party in procuring the execution of the will."
Clifton v. Clifton, 529 So. 2d 980, 983 (Ala. 1988).
With regard to the first element, "[a] confidential relationship arises
when one comes to rely upon and trust another in one's important affairs."
Sconyers, 669 So. 2d at 117. It is undisputed that, after Mr. Ralph died,
the proponent assisted Mrs. Ralph with various tasks, both personal and
business in nature. Mrs. Ralph also added the proponent's name on her
checking account, executed a power of attorney in favor of the proponent,
and executed a will naming the proponent as executor and sole beneficiary
of her estate. The proponent concedes that he had a confidential
relationship with Mrs. Ralph at the time she executed the will. However,
he disputes that he was a favored beneficiary. This Court has defined a
"favored beneficiary" as:
"One who, in the circumstances of the particular case, has
been favored over others having equal claim to the testator's
bounty. An unnatural discrimination, leading to a natural
inference that advantage has been taken by one in position so
to do; and shown to have been busy in getting such will
executed."
12
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Cook v. Morton, 241 Ala. 188, 192, 1 So. 2d 890, 892 (1941). The phrase
"having equal claim to the testator's bounty" does not refer to the laws of
descent and distribution but, rather, pertains to the facts of the particular
case. Windham v. Pope, 474 So. 2d 1075, 1077 (Ala. 1985). In other
words, a court must determine within a subset of possible beneficiaries
those individuals or institutions who under normal circumstances could
expect to receive a devise or bequest from a testator but are precluded
from benefiting because of the actions of someone outside of this group.
The proponent contends that he was not a favored beneficiary because
Mrs. Ralph was a widow and had no surviving children; thus, he says,
there was no evidence indicating that she was closer to some other person
or persons than she was to him. The proponent relies on the deposition
testimony of Johnson, who stated that Mrs. Ralph had wanted to leave her
entire estate to the proponent because her family "didn't help her much"
and "didn't come around." However, it is unclear from Johnson's
testimony whether he used the term "family" to reference Mrs. Ralph's
children, her siblings, or both. For example, in his deposition, Johnson
made no mention of specific family members such as siblings. However,
13
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as indicated, he did reference children, stating that "I think [Mrs. Ralph
said] they were living out of state," "they never came around," and "she
wanted to leave [everything to the proponent] because he was such a good
neighbor." As indicated, Mrs. Ralph did not have any children living at
the time she met with Johnson. In any event, Brock testified in her
deposition that Mrs. Ralph was close to her family, i.e., her siblings, and
that, immediately after Mr. Ralph died, the proponent had "inserted"
himself into Mrs. Ralph's business and personal affairs and had taken
affirmative measures to isolate Mrs. Ralph from her family. According to
Brock, the proponent changed the locks on Mrs. Ralph's house, forwarded
her telephone to his telephone, took charge of her medical affairs, and
neglected to tell the family whenever he took Mrs. Ralph to the hospital
and/or whenever she was admitted to the hospital. Brock also stated that,
in January 2017, while at Mr. Ralph's funeral, Mrs. Ralph had discussed
making a will and that Mrs. Ralph had subsequently told Brock that she
"wanted her things to go to the family." Carla Highfield, Mrs. Ralph's
niece, submitted an affidavit stating that, after Mr. Ralph died, Mrs.
Ralph had gathered all of her siblings and had told them that, if anything
14
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happened to her, she wanted her three remaining siblings "to get
everything" and that she had asked her bother, James, if he would be her
power of attorney. Viewing the evidence in a light most favorable to
Brock, we conclude that she presented substantial evidence from which
a jury could infer that the favoritism Mrs. Ralph showed the proponent by
making him the sole beneficiary of her estate was an unnatural
discrimination because, prior to the time the proponent befriended Mrs.
Ralph, she had had a close relationship with her siblings and had wanted
them to have her property, thus implying that Mrs. Ralph's siblings had
had an equal claim to her benevolence but that the proponent had placed
himself in an advantageous position at their expense, preventing their
inheritance.
With regard to the second element of undue influence, this Court has
held that "the fact that a beneficiary controls the personal, business, and
household affairs of a testator is evidence of a dominant and controlling
influence." Hayes v Apperson, 826 So. 2d 798, 804 (Ala. 2002). "Whether
the beneficiary was the dominant party in the relationship is usually a
question of fact for the jury, and the jury may review the often
15
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circumstantial evidence as to whether there were controlling influences
over the testator's behavior." Sconyers, 669 So. 2d at 117. Although the
proponent concedes that he enjoyed a confidential relationship with Mrs.
Ralph, he denies being the dominant party in that relationship because,
he says, Mrs. Ralph kept and balanced her own checkbook, prepared and
filed her own taxes, cooked breakfast on a daily basis, ordered her own
medication, and paid her bills by telephone. In response, Brock relied on
her prior testimony that, after Mr. Ralph died, the proponent had
"inserted" himself into Mrs. Ralph's personal and business affairs and had
taken affirmative measures to isolate her from her family. Brock stated
that, after that time, it became very difficult to see or talk to Mrs. Ralph
and that Mrs. Brock had become "guarded and depressed." Brock also
relied on the affidavit of David Cobb, who had been a longtime friend and
neighbor of the Ralphs. Cobb stated in his affidavit that, as long as he
had known the Ralphs, he had never met the proponent until after Mr.
Ralph died unexpectedly, at which time, he said, the proponent began
coming around Mrs. Ralph's house on a daily basis. Cobb stated that, on
one occasion, Mrs. Ralph had asked him to check on one of her riding
16
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lawnmowers and that, while doing so, the proponent showed up,
confronted him "aggressively," and told him he was not allowed to be there
and to leave. Cobb also stated that, on another occasion, he and Brock
went to see Mrs. Ralph because they could not get in touch with her by
telephone. Cobb stated that they found Mrs. Ralph in her house
motionless and nonresponsive and, that, when they attempted to
transport her to the hospital, the proponent showed up and announced
that "he was in charge" and told them to "stand back," at which time,
Cobb said, the proponent put Mrs. Ralph in his vehicle and transported
her to the hospital. Finally, Dr. Campbell stated the following in his
affidavit regarding his experience with the proponent:
"Finally, I also witnessed [the proponent] attend the
appointments with Ms. Ralph. This began almost immediately
after Ms. Ralph's husband's death. [The proponent] was a
domineering and controlling presence. He attempted to speak
for Ms. Ralph; he attempted to make decisions for her; he tried
to influence her; he questioned her medication; he acted as
though he had control over her. I immediately suspected that
[the proponent] was not acting in the best interest of Ms.
Ralph. I was alarmed at the behavior he exhibited. Due to her
grief, her extreme depressed state, the pain and physical
illness, and the effect of her medications, she was especially
susceptible to being taken advantage of."
17
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Viewing the evidence in a light most favorable to Brock, we conclude
that she presented substantial evidence from which a jury could infer that
Mrs. Ralph had a confidential relationship with the proponent and that
the proponent was the dominant party in that relationship.
The final element of an undue-influence claim is whether the
beneficiary actively interfered or was unduly active in procuring the will.
Direct evidence regarding undue influence in the procurement of a will is
rarely available; thus, this element too may be proved by circumstantial
evidence. Ex parte Helms, 873 So. 2d 1139 (Ala. 2003). The evidence
indicates that Mr. Ralph died on January 30, 2017, at which time the
proponent began assisting Mrs. Ralph with various tasks, including
accompanying her to doctors' appointments and dispensing all of her
medications. During that time, Mrs. Ralph added the proponent's name
to her checking account and, according to the proponent, asked for the
recommendation of an attorney who could prepare a power of attorney for
her. The proponent recommended Johnson, and he took Mrs. Ralph to
meet with Johnson. On March 21, 2017, less than two months after Mr.
Ralph died, Mrs. Ralph executed a power of attorney in favor of the
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proponent and a will naming him the sole beneficiary of her estate. The
proponent took possession of the will, placed it in his safe, and concealed
it from Mrs. Ralph's family. Given the circumstances surrounding the
timing of the execution of the will, the proponent's dominion over the will,
and Dr. Campbell's testimony regarding Mrs. Ralph's deteriorating
physical and mental state, we conclude that a jury could infer that the
proponent was unduly active in the procurement of the will. As indicated,
Dr. Campbell stated that, around the time Mrs. Ralph executed the will,
her health had deteriorated both mentally and physically, she was under
the influence of "mind-altering" medications, and she was easily
susceptible to being taken advantage of. Accordingly, Brock presented
substantial evidence of all the elements necessary to submit her claim of
undue influence to a jury.
IV. Conclusion
We reverse the circuit court's summary judgment in favor of the
proponent and remand the cause for further proceedings.
19
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REVERSED AND REMANDED.
Bolin, Shaw, Wise, Bryan, Mendheim, and Stewart, JJ., concur.
Mitchell, J., concurs specially.
Parker, C.J., concurs in the result.
20
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MITCHELL, Justice (concurring specially).
I concur with the majority opinion and write specially to highlight
the differences between the evidence presented here and the evidence
presented in Taylor v. Hanks, [Ms. 1190203, Feb. 26, 2021] ___ So. 3d ___
(Ala. 2021), another recent appeal asking us to determine whether there
was substantial evidence that medication had rendered a person
incapable of making testamentary decisions. In contrast to the evidence
in Taylor, which I believed was deficient, see Taylor, ___ So. 3d at ___
(Mitchell, J., concurring in the result), the evidence presented in this case
directly addressed how the medication Shirley Temple Carr Ralph ("Mrs.
Ralph") took affected her mental state. Indeed, this case exemplifies how,
in practice, a party should produce evidence that would permit a finding
that a testator lacked capacity because of the medication he or she was
taking.
A party challenging a testator's capacity must produce evidence
showing (1) the specific medication the testator was taking at or around
the time he or she made the contested testamentary decision and (2) how
that medication affected the testator's mental acuity. Maxwell v.
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Dawkins, 974 So. 2d 282, 287 (Ala. 2006). The appellant Nel Brock did
that here through the affidavit of Dr. David Clay Campbell, a physician
who had treated Mrs. Ralph for over three and a half years before her
death.
Dr. Campbell's testimony established, first, the various medications
-- Ambien, Percocet, Flexeril, Lyrica, trazodone, and Xanax -- that Mrs.
Ralph was taking during the period she executed the challenged will.
Notably, this went beyond simply reciting the medications that Mrs.
Ralph had been prescribed. Rather, Dr. Campbell stated that he
confirmed at an appointment eight days before Mrs. Ralph executed the
challenged will, and again at an appointment nine days after Mrs. Ralph
executed that will, that she was actually taking those medications. Dr.
Campbell said that Mrs. Ralph expressly acknowledged at the second
appointment that she was taking all of her medications, and he concluded
that, "[b]ased on my numerous examinations of [Mrs. Ralph] and my
discussions with her, I am confident she used these medications as
prescribed for the entire period they were prescribed." Dr. Campbell's
testimony constitutes substantial evidence from which a fair-minded
22
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person could reasonably conclude that Mrs. Ralph was under the influence
of these medications at the time she executed the challenged will. Cf.
Maxwell, 974 So. 2d at 287 (noting that while the evidence indicated that
the decedent took various medications in the later years of his life, there
was no evidence indicating what medications he "had taken on the date
or near the time he revoked his will").
Second, Dr. Campbell testified about the side effects of the
medications that Mrs. Ralph was taking. Importantly, this testimony
was not merely a generic summation of the possible side effects a
medication might have, as can be found on the warning labels that
accompany all prescription medications. Rather, Dr. Campbell specifically
discussed the side effects that Mrs. Ralph experienced as a result of taking
those medications. For example, with regard to Xanax, Dr. Campbell
explained that it could impair "cognitive functioning and memory
retention." He then went on to state that Mrs. Ralph "experienced mental
impairment while taking Xanax" and that they even discussed this side
effect but "she elected to continue [its use] as the benefits of the drug on
her emotional state and mental health were significant."
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Finally, Dr. Campbell testified that several of the medications that
Mrs. Ralph was taking could cause confusion and mental impairment on
their own and that their combined use could compound those side effects.
Crucially, he stated that he had observed those side effects in Mrs. Ralph
"on several occasions" and that during their appointments he was aware
"that her mental faculties were severely impaired." This testimony
indicating how the medications Mrs. Ralph took actually affected her
mental acuity -- not just how those medications might hypothetically
affect anyone who takes them -- would permit a fact-finder to conclude
that the medications were having that effect on Mrs. Ralph when she
executed the challenged will.
In contrast, the evidence presented in Taylor was lacking. While the
hospitalized testator's medical records indicated that he was taking
narcotic pain medication when he executed his will, ___ So. 3d at ___,
there was no evidence showing how the medicine actually affected him.
The Court simply reasoned that "[t]he use of narcotic pain medications
might have influenced [the testator's] mental state." ___ So. 3d at ___
(emphasis added). I declined to join that analysis because, while the
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plaintiff had produced warning labels for the testator's medications that
indicated they "may impair" the mental abilities of individuals who take
them, there was no evidence that the testator "was in fact affected in that
manner." Taylor, ___ So. 3d at ___ (Mitchell, J., concurring in the result).
Accordingly, I concluded, it would be improper to speculate that he had.
Id.; see also Schaaf v. Astrue, 602 F.3d 869, 876 (7th Cir. 2010)
(explaining that it would "be speculation to assume that [the appellant]
automatically suffers from [common] side effects" of the prescription
medication he had been taking); Maxwell, 974 So. 2d at 287 (holding that
a will contestant had failed to establish the existence of a genuine issue
of material fact about the testator's capacity because the contestant had
produced no evidence indicating that the testator's medications had
"affected his mental acuity in any way").
In my view, Taylor is an outlier and the majority opinion today
accurately demonstrates the type of evidence that is required to establish
that a testator lacked capacity because of the medication he or she was
taking. Future litigants attempting to make such a showing should
consider the majority opinion in this case when compiling their evidence
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and ensure that they put forth evidence demonstrating not merely that
the testator has taken medication that has the potential to affect his or
her mental capacity, but that the medication in fact did so.
26 | March 26, 2021 |
559bfbb1-69f8-4240-830c-a9bc91759a7f | James D. Hughes v. United Joint Venture, a limited partnership | N/A | 1191076 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1191076
James D
. Hughes v. United Joint Venture, a limited partnership
(Appeal from Mobile Circuit Court: CV-02-3321).
CERTIFICATE OF JUDGMENT
W
HEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on May 14, 2021:
Application Overruled. No Opinion. Mendheim, J. -
Parker, C.J., and
Bolin, Shaw, and Bryan, JJ., concur. Mitchell, J., recuses himself.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on March 12, 2021:
Affirmed. No Opinion. Mendheim, J. -
Parker, C.J., and Bolin, Shaw, and
Bryan, JJ., concur. Mitchell, J., recuses himself.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
24919cac-b1e9-40e0-a6b5-ce6196a441be | Ex parte Timothy Jackson Richards. | N/A | 1200416 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200416
Ex parte Timothy Jackson Richards. PETITION FOR W
RIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: State of
Alabama v. Timothy Jackson Richards) (Walker Circuit Court: CC-99-20;
Criminal Appeals :
CR-20-0120).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. W
ise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
99555b93-a506-46f4-a384-7fe0659ba5c0 | Carroll Little v. H/S Florence, LLC, Hull Storey Retail Group, LLC, and Lewis White | N/A | 1190503 | Alabama | Alabama Supreme Court | Rel: March 19, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190503
Carroll Little v. H/S Florence, LLC, Hull Storey Retail Group, LLC, and
Lewis White (Appeal from Lauderdale Circuit Court: CV-15-900044).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur. | March 19, 2021 |
3c050537-55a8-4ab3-9474-3faac7c84acf | Kelly Butler, in his official capacity as Alabama Director of Finance, and Chris Roberts, in his official capacity as Director of the Alabama Office of Indigent Defense Services v. Will J. Parks III and Claire Porter | N/A | 1190043 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 23, 2021
1190043
Kelly Butler, in his official capacity as Alabama Director of
Finance, and Chris Roberts, in his official capacity as Director of the Alabama
O
ffice of Indigent Defense Services v. W
ill J. Parks III and Claire Porter
(Appeal from Montgomery Circuit Court: CV-18-901008).
CERTIFICATE OF JUDGMENT
W
HEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on April 23, 2021:
Application Overruled. No Opinion. Mitchell, J. -
Parker, C.J., and
Bolin, Shaw, W
ise, Bryan, Sellers, Mendheim, and Stewart, JJ., concur.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on January 22, 2021:
Reversed And Remanded. Mitchell, J. -
Parker, C.J., and Bolin, W
ise, and
Stewart, JJ., concur. Shaw, Bryan, Sellers, and Mendheim, JJ., concur in the
result.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 23rd day of April, 2021.
Clerk, Supreme Court of Alabama | April 23, 2021 |
17faca87-78e4-43c9-9d37-ec4345627a13 | Ex parte Alexandra Grace Miller. | N/A | 1190918 | Alabama | Alabama Supreme Court | Rel: April 2, 2021
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, 2020-2021
____________________
1190918
____________________
Ex parte Alexandra Grace Miller
PETITION FOR WRIT OF MANDAMUS
(In re: Ralph Mitchell
v.
Alexandra Grace Miller, a minor, and State Farm Mutual
Automobile Insurance Company)
(Madison Circuit Court, CV-18-900074)
SHAW, Justice.
1190918
Alexandra Grace Miller, a defendant in this personal-injury action,
petitions this Court for a writ of mandamus directing the Madison Circuit
Court to vacate its order purporting to grant the postjudgment motion of
the plaintiff, Ralph Mitchell, seeking a new trial. We grant the petition
and issue the writ.
Facts and Procedural History
Miller and Mitchell were involved in a motor-vehicle accident in May
2017. Mitchell subsequently sued Miller in the Madison Circuit Court,
where the matter proceeded to a jury trial in January 2020.1 At the
conclusion of the trial, the trial court granted Mitchell's motion for a
judgment as a matter of law on the issue of liability; the jury subsequently
returned a verdict awarding Mitchell damages totaling $22,368 -- the
exact amount of medical expenses that Mitchell alleged at trial. The trial
court entered a judgment on the jury's verdict on January 31, 2020. On
1Mitchell also named State Farm Mutual Automobile Insurance
Company, his own automobile-insurance carrier, as a defendant and
sought to recover uninsured/underinsured-motorist benefits under his
policy. See generally Lowe v. Nationwide Ins. Co., 521 So. 2d 1309, 1310
(Ala. 1988).
2
1190918
February 10, 2020, Mitchell filed a timely postjudgment motion seeking
a new trial on the ground that the jury's verdict allegedly erroneously
failed to also include an award for "physical pain and suffering."2 The
trial court scheduled Mitchell's postjudgment motion for a hearing to be
held on March 17, 2020.
On March 13, 2020, this Court, in response to the COVID-19
pandemic, issued an "Administrative Order Suspending All In-Person
Court Proceedings for the Next Thirty Days," i.e., from March 16, 2020,
through April 16, 2020, in "[t]he local and state courts of the State of
Alabama." Among other things, the order provided:
"This order expressly does not prohibit court proceedings
by telephone, video, teleconferencing, or other means that do
not involve in-person contact. This order does not affect
courts' consideration of matters that can be resolved without
in-person proceedings.
"Any deadlines that are set by or subject to regulation by
this Court that are set to expire between March 16, 2020 and
April 16, 2020, are hereby extended to April 20, 2020. This
2Although Mitchell's motion did not reference any particular Rule of
Civil Procedure, it specifically requested a new trial and was, therefore,
presumably filed pursuant to Rule 59, Ala. R. Civ. P., which applies to
"new trials" and to "amendment of judgments."
3
1190918
Court cannot extend any statutory period of repose or statute
of limitations period."
(Emphasis added.) The trial court, on that same date, despite this Court's
suspension of in-person court proceedings through April 16, continued the
scheduled hearing on Mitchell's postjudgment motion until April 14,
2020.3
On March 15, 2020, this Court issued a follow-up administrative
order clarifying that "[t]he March 13, 2020, order is limited to in-person
courtroom proceedings." On March 17, 2020, this Court issued
"Administrative Order No. 3 Pertaining to the Briefing and Filing
Deadlines in the Appellate Courts." In that order, this Court, as
indicated, clarified deadlines for filings to our appellate courts and further
explained that the March 13, 2020, administrative order "shall not be
interpreted as extending any statutory period of repose, any statute of
limitations, or jurisdictional limitations provided for by statute or rule."
(Emphasis added.) A subsequent administrative order issued by this
3The trial court's order specifically provided that, if either party
believed that the matter was "too urgent to wait until the April setting,"
an earlier telephone hearing could be arranged.
4
1190918
Court further extended the suspension of in-person court proceedings until
April 30, 2020, but again encouraged the use of telephone and
videoconferencing technologies.
On April 6, 2020, the trial court entered a new order continuing "all
hearings" in the case until May 12, 2020. Pursuant to Rule 59.1, Ala. R.
Civ. P., however, Mitchell's postjudgment motion was deemed denied by
operation of law on May 11, 2020.4 There is nothing in the materials
before us suggesting either that the parties expressly consented to an
extension of the 90-day deadline established by Rule 59.1 or that Mitchell
objected to the rescheduled hearing dates on the ground that the
continued hearing was set to occur more than 90 days after he filed his
postjudgment motion.
4Generally, Rule 59.1 provides for the denial by operation of law of
any postjudgment motion filed pursuant to Rules 50, 52, 55, or 59, Ala. R.
Civ. P., that has remained pending in the trial court for 90 days. However,
the 90th day following February 10, 2020, was Sunday, May 10, 2020;
therefore, Mitchell's postjudgment motion was deemed denied on Monday,
May 11. See Williamson v. Fourth Ave. Supermarket, Inc., 12 So. 3d 1200,
1204 (Ala. 2009); Rule 6(a), Ala. R. Civ. P.
5
1190918
Thereafter, an additional administrative order issued by this Court
further extended the deadline suspending in-person court proceedings
until May 15, 2020. The scheduled hearing on Mitchell's motion was
again continued until June 16, 2020. Miller filed, on June 11, 2020, a
response in opposition to Mitchell's postjudgment motion.
Subsequent to the scheduled hearing, which allegedly occurred on
the trial court's first docket after in-person court proceedings resumed, the
trial court, on June 18, 2020, entered an order purporting to grant
Mitchell's postjudgment motion seeking a new trial. Thereafter, Miller
filed a "Motion to Vacate" in which she argued that Mitchell's
postjudgment motion had actually previously been denied by operation of
law and that the trial court's order purporting to grant that motion was
entered well after the 90-day deadline to rule on such a motion, which, she
argued, had not been extended by the administrative orders issued by this
Court.5 Accordingly, Miller argued that the trial court's order purporting
5Miller further noted that, even assuming that this Court's
administrative orders could have been interpreted as extending the
deadline provided in Rule 59.1, "the deadline would have only been
extended at most to May 15, 2020."
6
1190918
to grant Mitchell's postjudgment motion was void because, she said, the
trial court lacked jurisdiction to enter it. The trial court did not rule on
Miller's motion to vacate but set it for a hearing on August 11, 2020,
which was more than 42 days after the entry of the June 18, 2020, order
purporting to grant Mitchell's postjudgment motion. See Rule 21(a)(3) and
Rule 4(a)(1), Ala. R. App. P. Miller then filed this mandamus petition;6 we
subsequently ordered answers and briefs.
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; (4) properly invoked
jurisdiction of the court."
Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995).
"A petition for a writ of mandamus is the proper method
for obtaining review of a trial court's authority to rule on a
posttrial motion beyond the time period set forth in Rule 59.1,
Ala. R. Civ. P. See Ex parte Chamblee, 899 So. 2d 244, 244-45
(Ala. 2004) (granting petitions for the writ of mandamus that
6Miller originally filed her petition with the Alabama Court of Civil
Appeals, which transferred the petition to this Court pursuant to § 12-3-
15, Ala. Code 1975.
7
1190918
'implicate[d] the authority of the trial judge under Rule
59.1....'). See also Ex parte Davidson, 782 So. 2d 237 (Ala.
2000), in which this Court issued the writ of mandamus
setting aside the trial court's order, entered after posttrial
motions had been denied by operation of law pursuant to Rule
59.1, as void."
Ex parte Jackson Hosp. & Clinic, Inc., 49 So. 3d 1210, 1211 (Ala. 2010).
Discussion
It is undisputed that more than 90 days had elapsed between the
time Mitchell filed his postjudgment motion and the date the trial court
entered its order purporting to grant that motion. Further, as noted
above, there is nothing indicating that the 90-day period provided for in
Rule 59.1 was extended by express consent of all the parties before its
expiration. In her mandamus petition, Miller renews her argument that
the trial court lacked jurisdiction to grant Mitchell's postjudgment motion
because, she says, it had already been denied by operation of law.
At all times relevant to this case, Rule 59.1 provided:
"No postjudgment motion filed pursuant to Rules 50, 52,
55, or 59[, Ala. R. Civ. P.,] shall remain pending in the trial
court for more than ninety (90) days, unless with the express
consent of all the parties, which consent shall appear of record,
or unless extended by the appellate court to which an appeal
of the judgment would lie, and such time may be further
8
1190918
extended for good cause shown. A failure by the trial court to
render an order disposing of any pending postjudgment motion
within the time permitted hereunder, or any extension thereof,
shall constitute a denial of such motion as of the date of the
expiration of the period."7
At the expiration of the 90-day period provided by the rule, the trial court
loses jurisdiction to rule on the postjudgment motion. See Ex parte
Jackson Hosp. & Clinic, Inc., 49 So. 3d at 1212 (explaining that the trial
court's order purporting to rule on a postjudgment motion "was void
because [the trial court] lost jurisdiction after the running of the 90-day
period prescribed by Rule 59.1"), Ex parte Davidson, 782 So. 2d 237, 241
(Ala. 2000) ("If a trial judge allows a postjudgment motion to remain
pending and not ruled upon for 90 days, then the motion is denied by
operation of law at the end of the 90th day and the trial judge then loses
jurisdiction to rule on the motion."), Ex parte Caterpillar, Inc., 708 So. 2d
142, 143 (Ala. 1997) ("If a trial court does not rule on a post-judgment
motion within 90 days, it loses jurisdiction to rule on the motion."), and Ex
parte Hornsby, 663 So. 2d 966, 967 (Ala. 1995). Mitchell responds to
7Rule 59.1 was amended effective October 1, 2020, but that
amendment is not applicable in this case.
9
1190918
Miller's mandamus petition by arguing that this Court's March 13, 2020,
administrative order, in addition to suspending in-person court
proceedings, also "suspended" any and all applicable deadlines --
"including postjudgment deadlines" -- and thus permitted the trial court
to retain jurisdiction beyond the 90-day period provided for in Rule 59.1.
We disagree.
This Court's March 13, 2020, order, by its terms, clearly applied to
suspend only in-person court proceedings. It further encouraged the
resolution of matters, when possible, by alternate means and extended
deadlines subject to this Court's regulation. However, the March 13, 2020,
order operated to extend only deadlines "set to expire between March 16,
2020 and April 16, 2020" -- an extension that had no effect on any deadline
applicable to Mitchell's postjudgment motion.
Our subsequent order, dated March 15, 2020, reiterated that any
suspension was "limited to in-person courtroom proceedings." In addition,
our March 17, 2020, order further clarified that the March 13, 2020, order
specifically did not operate to extend any "jurisdictional limitations
provided for by statute or rule." In sum, none of this Court's
10
1190918
administrative orders issued in March 2020 may be read as extending
jurisdictional deadlines, such as the 90-day deadline to rule on a
postjudgment motion.
Thus, contrary to Mitchell's claims, there is nothing suggesting that
any administrative order of this Court operated to suspend the
jurisdictional deadline applicable to a ruling on Mitchell's postjudgment
motion under Rule 59.1. Instead, our orders explained that they were not
intended to affect established "jurisdictional limitations provided for by
statute or rule." Nothing before us indicates that Mitchell could not have
obtained the consent of Miller to an extension of the deadline provided in
Rule 59.1 before its expiration or, alternatively, have insisted upon a
hearing by telephone, videoconferencing, teleconferencing, or other means
that did not involve in-person contact before to the denial of his
postjudgment motion by operation of law. Finally, no argument has been
presented as to why a hearing was needed in this case.
As Miller argues, Mitchell's postjudgment motion seeking a new trial
had already been denied by operation of law when the trial court entered
its June 18, 2020, order purporting to grant that motion. Because the
11
1190918
trial court lost jurisdiction after the expiration of the 90-day period
prescribed by Rule 59.1, its order is void. See, e.g., Ex parte Jackson
Hosp. & Clinic, Inc., 49 So. 3d at 1212, Ex parte Davidson, 782 So. 2d at
241, Ex parte Caterpillar, Inc., 708 So. 2d at 143, and Ex parte Hornsby,
663 So. 2d at 967. That jurisdictional deadline applies even if the trial
court's failure to rule within 90 days is inadvertent rather than
deliberate. See Howard v. McMillian, 480 So. 2d 1251, 1252 (Ala. Civ.
App. 1985) ("Rule 59.1 makes no distinction between an inadvertent
failure, a deliberate failure, and any other type of failure by the trial court
to dispose of a pending postjudgment motion within the prescribed ninety
day period. Any type of failure to rule upon such a motion during such
period of time is adequate to bring rule 59.1 into operation."). See also Ex
parte Limerick, 66 So. 3d 755, 757 (Ala. 2011).
Conclusion
Miller has demonstrated both that the trial court lacked jurisdiction
to enter the order purporting to grant Mitchell's postjudgment motion
seeking a new trial and a corresponding clear legal right to the requested
relief. We therefore grant the petition and issue the writ directing the
12
1190918
Madison Circuit Court to vacate its order purporting to grant, after the
expiration of the 90-day period provided in Rule 59.1, Mitchell's
postjudgment motion seeking a new trial.
PETITION GRANTED; WRIT ISSUED.
Bolin, Wise, Bryan, Sellers, Stewart, and Mitchell, JJ., concur.
Parker, C.J., concurs in the result.
13 | April 2, 2021 |
098b9de6-af9e-4f57-929c-e9173432d6d6 | Munza, et al. v. Ivey, et al. | N/A | 1200003 | Alabama | Alabama Supreme Court | Rel: March 19, 2021
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, 2020-2021
____________________
1200003
____________________
Barry Munza, Larry Lewis, and Debbie Mathis
v.
Kay Ivey, in her official capacity as Governor of the State of
Alabama; Scott Harris, in his official capacity as State Health
Officer of Alabama; and the Alabama State Board of Health
Appeal from Montgomery Circuit Court
(CV-20-900935)
BOLIN, Justice.
1200003
Barry Munza, Larry Lewis, and Debbie Mathis ("the plaintiffs")
appeal from the Montgomery Circuit Court's order dismissing their
complaint seeking certain injunctive relief and challenging a
proclamation issued by Governor Kay Ivey requiring the use of facial
coverings in certain circumstances, as outlined in an order issued by Dr.
Scott Harris, the State Health officer, to slow the spread of COVID-19.
Facts and Procedural History
In December 2019, a new human coronavirus emerged. The virus,
which causes the disease known as COVID-19, quickly spread around the
world. On March 6, 2020, the State Board of Health designated
COVID-19 as a disease with the potential to cause an epidemic, as a
threat to the health and welfare of the public, or as otherwise having
public-health importance, and it added COVID-19 to the list of diseases
classified as immediate or extremely urgent that required the notification
of a county health department or the State Department of Public Health
within four hours of a presumptive diagnosis. The virus causing COVID-
19 was first detected in Alabama on March 13, 2020. On that day,
Governor Ivey issued a proclamation declaring a state of emergency for
2
1200003
the State of Alabama because of the COVID-19 global pandemic. The
state of emergency has been extended several times as the State continues
to respond to the pandemic.
According to the United States Centers for Disease Control and
Prevention ("the CDC"), the virus causing COVID-19 is thought to spread
mainly between people who are in close contact with one another or
through respiratory droplets produced when an infected person coughs or
sneezes. Notably, a person without symptoms of the virus can
unknowingly still be infected and capable of spreading the virus to others.
According to the CDC, using a mask or facial covering to cover one’s
mouth and nose can help reduce the spread of the virus; wearing a mask
or facial covering serves two purposes: personal protection against
inhalation of harmful pathogens and source control to prevent exposing
others to infectious microbes that may be expelled during respiration.
Again according to the CDC, wearing a mask or facial covering is
particularly important in settings where social distancing -- physical
separation from others by at least six feet -- cannot consistently be
maintained.
3
1200003
On March 20, 2020, Dr. Harris, in his capacity as the State Health
officer, issued an order, commonly referred to as "the Safer at Home
order," "suspending certain public gatherings due to risk of infection by
COVID-19." That order was issued as an emergency rule pursuant to §§
41-22-5(b), 41-22-6(c)(3), 22-2-8, and 22-11A-1, Ala. Code 1975. Dr.
Harris issued amended versions of the order on March 27, 2020, April 3,
2020, April 28, 2020, May 8, 2020, and May 21, 2020. The State
Committee of Public Health, which has the authority to act on behalf of
the State Board of Health, see § 22-2-6, Ala. Code 1975, was not in
session when Dr. Harris issued the original order and the amendments
thereto as emergency rules, but it later ratified the original order and the
amendments thereto at its next meeting.
On June 30, 2020, Governor Ivey issued a proclamation that
incorporated Dr. Harris’s order, as most recently amended. As the
proclamation explained, under the Alabama Administrative Procedure Act
("the AAPA"), § 41-22-1 et seq., Ala. Code 1975, "[t]he State Health
Officer’s authority to adopt a COVID-19 related health order will arguably
4
1200003
expire on July 15, 2020, which is 120 days after" Dr. Harris issued his
original order as an emergency rule. The proclamation further stated:
"[T]he uncertainties of the COVID-19 pandemic will require
COVID-19-related rulemaking to be done on an emergency, ad
hoc basis for longer than the 120-day emergency period
contemplated by the Administrative Procedure Act. The
Governor’s powers under the Emergency Management Act
allows the flexibility to undertake such rulemaking for as long
as a declared state public health emergency is in effect."
Accordingly, Governor Ivey attached Dr. Harris’s order, as most
recently amended, to her proclamation and "promulgate[d] that order as
an order, rule, or regulation under the applicable provisions of the
Emergency Management Act. See, e.g., Ala. Code [1975,] §§ 31-9-6(1) &
31-9-13." The proclamation stated that the "law-enforcing authorities of
the state shall enforce that order as any other order, rule, or regulation
promulgated by the Governor under [the Emergency Management] Act,
and the penalty for violating it shall be a fine of not more than $500 or
imprisonment in the county jail as set forth in [that] Act, see, e.g., [Ala.
Code 1975,] § 31-9-22." Each subsequent amended order issued by Dr.
Harris has been adopted and promulgated by Governor Ivey in a
5
1200003
proclamation issued under the Alabama Emergency Management Act of
1955, § 31-9-1 et seq., Ala. Code 1975.
On July 15, 2020, Governor Ivey issued a proclamation ("the July 15
proclamation") adopting Dr. Harris's order, as amended effective July 15,
2020 ("the amended health order"), that, among other things, required a
mask or facial covering to be worn in certain circumstances. The amended
health order stated the following:
"2. Facial coverings for individuals: Effective July 16,
2020 at 5:00 P.M., each person shall wear a mask or other
facial covering that covers his or [her] nostrils and mouth at all
times when within six feet of a person from another household
in any of the following places: an indoor space open to the
general public, a vehicle operated by a transportation service,
or an outdoor public space where ten or more people are
gathered. But this facial-covering requirement is subject to the
following exceptions[:]
"a. Exceptions for practical necessity. The
facial-covering requirement does not apply to:
"i. Any person six years of age or
younger;
"ii. Any person with a medical
condition or disability that prevents
him or her from wearing a facial
covering;
6
1200003
"iii. Any person while consuming
food or drink, or seated at a restaurant
to eat or drink;
"iv. Any person who is obtaining a
service (for example, a medical or
dental procedure) that requires removal
of the facial covering in order to
perform the service; or
"v. Any person who is required to
remove the facial covering to confirm
his or her identity, such as for security
of screening purposes.
"b.
Exceptions
for
exercise.
The
facial-covering requirement does not apply to:
"i. Any person who is actively
engaged in exercise in a gym or other
athletic facility if he or she maintains
six feet of separation from persons of
another household;
"ii. Any person who is directly
participating in athletic activities in
compliance with paragraph 11 of this
order; or
"iii. Any person who is in a
swimming pool, lake, water attraction,
or similar body of water, though
wearing a facial covering or social
distancing is strongly encouraged if safe
and practicable.
7
1200003
"c. Exceptions for effective communication.
The facial-covering requirement does not apply to:
"i. Any person who is seeking to
communicate with another person
where the ability to see the person’s
mouth is essential for communication
(such as when the other person has a
hearing impairment); or
"ii. Any person speaking for
broadcast or to an audience if the
person maintains six feet of separation
from persons from another household.
"d. Exceptions to facilitate constitutionally
protected activity. The facial-covering requirement
does not apply to:
"i. Any person who is voting,
though wearing a face covering is
strongly encouraged; or
"ii. Any person who cannot wear a
facial covering because he or she is
actively providing or obtaining access to
religious worship, though wearing a
face covering is strongly encouraged.
"e. Exceptions for essential job functions. The
facial-covering requirement does not apply to:
"i. Any first responder (including
law enforcement officers, firefighters, or
emergency
medical
personnel)
if
8
1200003
necessary to perform a public-safety
function; or
"ii. Any person performing a job
function if wearing a face covering is
inconsistent
with
industry
safety
standards or a business's established
safety protocols."
Governor Ivey has extended the facial-covering requirement several times
since issuing the July 15 proclamation adopting the amended health
order.
On July 24, 2020, the plaintiffs sued Governor Ivey and Dr. Harris,
in their official capacities, and the Alabama State Board of Health ("the
defendants"), seeking a temporary restraining order and injunctive relief
regarding the July 15 proclamation adopting the amended health order
mandating the use of facial coverings.
On July 26, 2020, the trial court entered an order denying the
plaintiffs' request for a temporary restraining order, stating that the
plaintiffs had failed to demonstrate that they would be "irreparably
harmed" without the issuance of a temporary restraining order. On July
27, 2020, the defendants moved the trial court to dismiss the plaintiffs'
9
1200003
action seeking injunctive relief on the basis that the trial court lacked
subject-matter jurisdiction, see Rule 12(b)(1), Ala. R. Civ. P., and on the
basis that the plaintiffs had failed state a claim upon which relief can be
granted, see Rule 12(b)(6), Ala. R. Civ. P. In the alternative, the
defendants moved for a summary judgment. The defendants specifically
argued, among other things, that the plaintiffs lack standing because they
failed to plead any particular injury caused by the facial-covering
requirement and that the plaintiffs' claims for injunctive relief against the
defendants are barred by the doctrine of sovereign immunity. On August
7, 2020, the plaintiffs filed a response in opposition to the motion to
dismiss or, in the alternative, for a summary judgment.
Following a hearing, the trial court, on August 11, 2020, entered an
order denying the plaintiffs' request for a preliminary injunction and
granting the defendants' motion to dismiss. On September 9, 2020, the
plaintiffs moved the trial court to alter, amend, or vacate the trial court's
order and for leave to supplement their pleadings. On October 1, 2020,
the trial court entered an order denying the plaintiffs' postjudgment
motion. This appeal followed.
10
1200003
Standard of Review
This Court has stated the applicable standard of review as follows:
" 'A ruling on a motion to dismiss is reviewed
without a presumption of correctness. This Court
must accept the allegations of the complaint as
true. 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.'
"Newman v. Savas, 878 So. 2d 1147, 1148-49 (Ala. 2003)
(citations omitted). 'Matters of subject-matter jurisdiction are
subject to de novo review.' DuBose v. Weaver, 68 So. 3d 814,
821 (Ala. 2011). ' " 'When a party without standing purports to
commence an action, the trial court acquires no subject-matter
jurisdiction.' " ' Blevins v. Hillwood Office Ctr. Owners' Ass'n,
51 So. 3d 317, 321 (Ala. 2010) (quoting Riley v. Pate, 3 So. 3d
835, 838 (Ala. 2008), quoting in turn State v. Property at 2018
Rainbow Drive, 740 So. 2d 1025, 1028 (Ala. 1999))."
Poiroux v. Rich, 150 So. 3d 1027, 1033 (Ala. 2014). Further,
" '[a] court ruling on a Rule 12(b)(1) motion to
dismiss "may consider documents outside the
pleadings to assure itself that it has jurisdiction."
Al-Owhali [v. Ashcroft], 279 F. Supp. 2d [13,] 21
[(D.D.C. 2003)]; see also Haase v. Sessions, 835
F.2d 902, 906 (D.C. Cir. 1987) ("In 12(b)(1)
proceedings, it has been long accepted that the
judiciary may make appropriate inquiry beyond the
pleadings to satisfy itself on [its] authority to
entertain the case." (internal citations and
quotation marks omitted)). The level of scrutiny
11
1200003
with which the Court examines the allegations in
the complaint that support a finding of jurisdiction,
however, depends upon whether the motion to
dismiss asserts a facial or factual challenge to the
court's jurisdiction. See I.T. Consultants v.
Pakistan, 351 F.3d 1184, 1188 (D.C. Cir. 2003).
" ' Facial challenges, such as motions to
dismiss for lack of standing at the pleading stage,
"attack[] the factual allegations of the complaint
that are contained on the face of the complaint." Al-
Owhali, 279 F. Supp. 2d at 20 (internal quotation
marks and citation omitted). "If a defendant
mounts a 'facial' challenge to the legal sufficiency
of the plaintiff's jurisdictional allegations, the court
must accept as true the allegations in the
complaint and consider the factual allegations of
the complaint in the light most favorable to the
non-moving party." Erby [v. United States,] 424 F.
Supp. 2d [180,] 181 [(D.D.C. 2006)]; see also I.T.
Consultants, 351 F.3d at 1188. The court may look
beyond the allegations contained in the complaint
to decide a facial challenge, "as long as it still
accepts the factual allegations in the complaint as
true." Abu Ali [v. Gonzales,] 387 F. Supp. 2d [16,]
18 [(D.D.C. 2005)]; see also Jerome Stevens
Pharm., Inc. v. Food & Drug Admin., 402 F. 3d
1249, 1253-54 (D.C. Cir. 2005) ("At the pleading
stage .... [w]hile the district court may consider
materials outside the pleadings in deciding
whether to grant a motion to dismiss for lack of
jurisdiction, the court must still accept all of the
factual allegations in the complaint as true."
(internal citations and quotation marks omitted)).' "
12
1200003
Ex parte Safeway Ins. Co. of Alabama, 990 So. 2d 344, 349 (Ala.
2008)(quoting Lindsey v. United States, 448 F. Supp. 2d 37, 43 (D.D.C.
2006)).
Discussion
The defendants have asserted that the plaintiffs lack standing to
challenge Governor Ivey's July 15 proclamation adopting the amended
health order that required masks or facial coverings to be worn in certain
circumstances.
Public-law actions involve "constitutional or other challenges to the
actions of officials or administrative agencies." Ex parte BAC Home Loans
Servicing, LP, 159 So. 3d 31, 34 (Ala. 2013). A party establishes
standing to bring a challenge in a public-law case " ' "when it
demonstrates the existence of (1) an actual, concrete and particularized
'injury in fact' -- 'an invasion of a legally protected interest'; (2) a 'causal
connection between the injury and the conduct complained of'; and (3) a
likelihood that the injury will be 'redressed by a favorable decision.' " ' "
Poiroux, 150 So. 3d at 1039 (quoting Alabama Alcoholic Beverage Control
Bd. v. Henri-Duval Winery, LLC, 890 So. 2d 70, 74 (Ala. 2003), quoting in
13
1200003
turn other cases). This Court has explained the following with regard to
the "injury" element of standing:
" ' "Injury will not be presumed; it must be shown." ' A
party's injury must be "tangible," and a party must have "a
concrete stake in the outcome of the court's decision." ' The
plaintiffs 'must allege "specific concrete facts demonstrating
that the challenged practices harm [them], and that [they]
personally would benefit in a tangible way from the court's
intervention.''' At a minimum, they must show that they
personally have suffered some actual or threatened injury as
a result of the purportedly illegal conduct."
Ex parte Merrill, 264 So. 3d 855, 863 (Ala. 2018)(internal citations
omitted).
The plaintiffs alleged the following in their complaint:
"The Governor and the Health Officer, throughout the past
four months, have issued various Proclamations and Orders
restricting the freedoms of the citizens of Alabama in response
to what is known as COVID-19.
"On July 15, 2020, the Governor issued a Proclamation,
incorporating an Order, also issued on July 15, 2020, of the
State Health Officer which mandated, among other things,
that each person 'wear a mask or other facial covering' at all
times when within six feet of a person from another household,
with some exceptions. ...
"Said Proclamation provided threat of fine and incarceration
for violation of the Proclamation.
14
1200003
"The Plaintiffs are directly affected by the Proclamation and
Order, as they are located within the boundaries of the State
of Alabama and, during times, interface with the public at
distances of less than six feet.
"Plaintiff Munza is a retired sheriff’s deputy and interfaces
with the general public in his normal daily life, oftentimes
within six feet of another individual.
"Plaintiff Lewis is a retired sheriff’s deputy and interfaces
with the general public in his normal daily life, oftentimes
within six feet of another individual.
"Plaintiff Mathis is a real estate agent who interfaces with the
general public in her personal and professional life, oftentimes
within six feet of another individual.
"All other individuals currently located in Alabama are
similarly situated and affected by said Proclamation and
Order.
"Said Proclamation and Order are illegal.
"Said Proclamation and Order have been illegally adopted,
against well recognized procedure for adopting and
promulgating health rules and regulations.
"Said Proclamation and Order are unenforceable and are
nothing more than an expression emanating from the
Governor and the Health Officer."
(Paragraph numbers omitted.)
15
1200003
The plaintiffs have failed to allege any " ' "specific concrete facts" ' "
demonstrating that they have suffered an "actual" injury as the result of
the July 15 proclamation adopting the amended health order that
required masks or facial coverings to be worn when within six feet of a
person from another household. Ex parte Merrill, 264 So. 3d at 863.
Rather, the plaintiffs broadly asserted that they were "directly affected"
by the facial-covering requirement because they live in Alabama and that,
during certain times, they "interface with the public at distances of less
than six feet." Absent from the plaintiffs' allegations is any description of
" ' "an actual, concrete and particularized 'injury in fact' " ' " proximately
caused by the facial-covering requirement. Poiroux, 150 So. 3d at 1039.
The plaintiffs further alleged that the July 15 proclamation adopting the
amended health order requiring the use of masks or facial coverings was
"illegal" and "unenforceable." Those assertions are wholly conclusory in
nature and fail to demonstrate an injury in fact, because an individual's
belief that a law is invalid or unenforceable is not the kind of " ' "actual,
concrete and particularized 'injury in fact' " ' " that supports an
individual's standing to sue. Poiroux, 150 So. 3d at 1039; see also
16
1200003
Muhammad v. Ford, 986 So. 2d 1158, 1165 (Ala. 2007) (holding, in a case
in which the plaintiffs claimed that the defendants' " 'actions denied them
the opportunity to live in a county in which a valid law ... exists,' " that
"[s]uch a violation of a purported right does not establish an 'actual,
concrete and particularized injury in fact' ").
Relying upon Parker v. Judicial Inquiry Commission of Alabama,
Case No. 2:16-CV-442-WKW, Aug. 31, 2017 (M.D. Ala. 2017), not
reported in the Federal Supplement), the plaintiffs argue that they have
satisfied the "injury in fact" requirement for standing because, they say,
they are threatened with imminent injury in the form of a fine and/or
incarceration for those instances when they "interface" within six feet of
persons outside their households without wearing a mask or facial
covering. In Parker, then Justice Parker brought a pre-enforcement
action challenging the constitutionality of several Alabama Canons of
Judicial Ethics ("the challenged Judicial Canons"), as well as § 159 of the
Alabama Constitution of 1901, alleging that the challenged Judicial
Canons violated his First Amendment right to freedom of speech by
restricting the ability of judges to speak out on certain issues and that §
17
1200003
159 violated his Fourteenth Amendment right to due process by providing
for the suspension of judges who have complaints filed by the Alabama
Judicial Inquiry Commission ("the JIC") pending against them. The
federal district court determined that Justice Parker had standing to
bring the action, stating that " 'a [preenforcement] plaintiff satisfies the
injury-in-fact requirement where he alleges "an intention to engage in a
course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution
thereunder." ' " Parker, (quoting Susan B. Anthony List v. Driehaus, 573
U.S. 149, 160, 134 S. Ct. 2334, 2342 (2014), quoting in turn Babbitt v.
Farm Workers, 442 U.S. 289, 298 (1979)). The federal district court
explained that Justice Parker satisfied those requirements because he (1)
"had alleged that he intend[ed] to engage in political speech that is
arguably proscribed by the Judicial Canons at issue and might result in
his automatic suspension under § 159" and (2) there existed a credible
threat of prosecution because "Justice Parker ha[d] already once been
subjected to investigation based on the alleged violation of the Judicial
18
1200003
Canons he now challenges." Parker. The federal district court concluded
that
" 'the "pre-enforcement nature" of the suit [is] not "troub[ling]"
because the plaintiff[] ha[s] "alleged an actual and
well-founded fear that the law will be enforced against [him]." '
Susan B. Anthony List [v. Driehaus], [573 U.S. 149, 160,] 134
S. Ct. [2334,] 2343 [(2014)] (quoting [Virginia] v. Am.
Booksellers[, Ass'n], 484 U.S. [383,] 393 [(1988)]. Justice
Parker has standing to bring this preenforcement First
Amendment challenge because [the] JIC already has proven
the threat of prosecution credible and, at any moment, may
start another investigation against him."
Parker.
The plaintiffs' allegations of an imminent threat of enforcement of
the July 15 proclamation adopting the amended health order against them
differ substantially from those in Parker. The plaintiffs have failed to
allege any credible risk of enforcement that would give rise to standing
that would support a pre-enforcement action. The plaintiffs rely upon
Babbitt, supra, for the proposition that a plaintiff "should not be required
to await and undergo criminal prosecution as the sole means of seeking
relief." Although that is true, Babbitt also requires that a plaintiff allege
that "either (1) he was threatened with prosecution; (2) prosecution is
19
1200003
likely; or (3) there is a credible threat of prosecution." American Civil
Liberties Union v. The Florida Bar, 999 F.2d 1486, 1492 (11th Cir. 1993).
The plaintiffs have alleged no facts that would satisfy those requirements.
The plaintiffs' complaint does not contain a single allegation that any of
the plaintiffs have been specifically threatened with enforcement of the
fine and incarceration penalties in the July 15 proclamation. Instead, all
the plaintiffs alleged was that the July 15 proclamation "provided threat
of fine and incarceration" and that the plaintiffs "are directly affected by
the Proclamation and Order, as they are located within the boundaries of
the State of Alabama and, during times, interface with the public at
distances of less than six feet." Although the plaintiffs now argue that
they "are at risk of incarceration at times when they are in public and
when within six feet of another person without wearing a 'mask' or 'other
facial covering,' " their complaint fails to even state that they have refused
to wear masks or facial coverings in public such that they could be subject
to an enforcement action. Further, the plaintiffs' complaint contains no
allegations about how the facial-covering requirement is being enforced,
to the extent that the requirement is being enforced at all.
20
1200003
Based on the foregoing, we conclude that the plaintiffs have failed
to allege " ' "specific concrete facts," ' " Ex parte Merrill, 264 So. 3d at 863,
demonstrating an " ' "actual ... particularized 'injury in fact,' " ' " Poiroux,
150 So. 3d at 1039, and that they, therefore, lack standing to proceed
with this action.
The plaintiffs argue alternatively that the AAPA affirmatively
grants them standing to bring this action. Specifically, the plaintiffs
contend they have standing to bring this action under § 41-22-10, Ala.
Code 1975, which provides:
"The validity or applicability of a rule may be determined
in an action for a declaratory judgment or its enforcement
stayed by injunctive relief in the circuit court of Montgomery
County, unless otherwise specifically provided by statute, if
the court finds that the rule, or its threatened application,
interferes with or impairs, or threatens to interfere with or
impair, the legal rights or privileges of the plaintiff. The
agency shall be made a party to the action. In passing on such
rules the court shall declare the rule invalid only if it finds
that it violates constitutional provisions or exceeds the
statutory authority of the agency or was adopted without
substantial compliance with rulemaking procedures provided
for in [the AAPA]."
The plaintiffs' reliance upon the AAPA to establish standing is
likewise unavailing. This Court has noted:
21
1200003
" '[T]he Alabama Administrative Procedure Act,
Ala. Code 1975, § 41-22-1 et seq., incorporates the
requirement of standing by providing that
" ' "[t]he validity or applicability of a
rule may be determined in an action for
a
declaratory
judgment
or
its
enforcement stayed by injunctive relief
in the circuit court of Montgomery
County, unless otherwise specifically
provided by statute, if the court finds
that the rule, or its threatened
application, interferes with or impairs,
or threatens to interfere with or impair,
the legal rights or privileges of the
plaintiffs ...." ' "
Ex parte LeFleur, [Ms. 1190191, Nov. 6, 2020] ___ So. 3d ___, ___ (Ala.
2020)(quoting Smith v. LeFleur, [Ms. 2180375, Oct. 11, 2019] ___ So. 3d
___, ___ (Ala. Civ. App. 2019), quoting in turn § 41-22-10) (emphasis
omitted). In other words, the AAPA incorporates all the normal standing
requirements discussed in Poiroux and does not grant the plaintiffs a
separate avenue to assert standing to bring an action. Even under the
AAPA, the plaintiffs must still allege facts showing that they suffered an
injury in fact, and, as discussed above, they have failed to do so.
Conclusion
22
1200003
We conclude that the plaintiffs lacked standing to bring their
complaint seeking injunctive relief regarding the July 15 proclamation
adopting the amended health order that, among other things, requires
masks or facial coverings to be worn in certain circumstances. Because
we have determined that the plaintiffs lacked standing, we pretermit
discussion of the remaining issues presented by the parties.
AFFIRMED.
Parker, C.J., and Wise, Bryan, Sellers, Mendheim, Stewart, and
Mitchell, JJ., concur.
Shaw, J., concurs in the result.
23 | March 19, 2021 |
4a8689f5-a9c8-4c5c-a0e1-58f0e0d9be01 | Cenlar, F.S.B., and Federal National Mortgage Association v. Teresa Sheryl Christian, individually and as the administratrix of the Estate of Joseph Brian Christian, deceased | N/A | 1190560 | Alabama | Alabama Supreme Court | REL: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190513
Teresa Sheryl Christian, individually and as the administratrix of the
Estate of Joseph Brian Christian, deceased v. Cenlar, F.S.B., and Federal
National Mortgage Association (Appeal from Tuscaloosa Circuit Court:
CV-13-901524).
1190560
Cenlar, F.S.B., and Federal National Mortgage Association v. Teresa
Sheryl Christian, individually and as the administratrix of the Estate of
Joseph Brian Christian, deceased (Appeal from Tuscaloosa Circuit Court:
CV-13-901524).
MENDHEIM, Justice.
1190513 -- AFFIRMED. NO OPINION.
1190560 -- AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(E), Ala. R. App. P.
Parker, C.J., and Shaw, Bryan, and Mitchell, JJ., concur. | March 12, 2021 |
3aebd557-e49a-4899-9109-80a11805ff9d | Ex parte Mark A. Reese. | N/A | 1200252 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1200252
Ex parte Mark A. Reese. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Mark A. Reese v. State of
Alabama) (Mobile Circuit Court: CC-18-1341.70; CC-18-5188.70; Criminal
Appeals :
CR-19-0195).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 19, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Mendheim, JJ., concur. Stewart, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of March, 2021.
Clerk, Supreme Court of Alabama | March 19, 2021 |
07ec355a-163f-4be7-8364-c740f2079781 | Eddie Kelley v. Alabama Department of Corrections | N/A | 1190843 | Alabama | Alabama Supreme Court | Re: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190843
Eddie Kelley v. Alabama Department of Corrections (Appeal from
Escambia Circuit Court: CV-20-8).
BOLIN, Justice.1
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Wise, Sellers, and Stewart, JJ., concur.
1This case was originally assigned to another Justice on this Court;
it was reassigned to Justice Bolin on January 25, 2021. | March 12, 2021 |
9ceca16b-8cfa-419d-a6d1-0e1a24ba5af7 | Ex parte D.O. | N/A | 1200101 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1200101
Ex parte D.O. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: D.O. v. Madison County Department of Human
Resources) (Madison Juvenile Court: JU-18-1289.01; Civil Appeals :
2190331).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
ced5b18b-0036-481e-bba7-ecd31093b2eb | Ex parte Thomas McMeans. | N/A | 1190869 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190869
Ex parte Thomas McMeans. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Thomas McMeans v. State of
Alabama) (Butler Circuit Court: CC-12-47.62; Criminal Appeals :
CR-19-0558).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
7a07f367-e5c8-47f8-b3ec-a11bba20fe86 | Little's Jewelers, Inc. v. Hull Storey Retail Group, LLC; H/S Florence, LLC; and Lewis White | N/A | 1190504 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1190504
Little's Jewelers, Inc. v. Hull Storey Retail Group, LLC; H/S Florence, LLC; and Lewis
White (Appeal from Lauderdale Circuit Court: CV-16-900325).
ORDER
IT IS ORDERED that the above-styled case is dismissed.
WISE, J. - Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur.
Witness my hand this 19th day of March, 2021.
/ra | March 19, 2021 |
6d4684c6-b0aa-47e0-8db4-32f5ffa069f9 | Lashel Hale v. Spartan Invest, LLC. | N/A | 1190600 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190600
Lashel Hale v. Spartan Invest, LLC. (Appeal from Shelby
Circuit Court: CV-18-900615; Civil Appeals :
2190128).
CERTIFICATE OF JUDGMENT
W
HEREAS, the ruling on the application for rehearing filed in this case
and indicated below was entered in this cause on March 12, 2021:
Application Overruled. No Opinion. Shaw, J. -
Parker, C.J., and Bryan,
Mendheim, and Mitchell, JJ., concur.
W
HEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on November 12, 2020:
Appellant's Application and Brief in Support of Rehearing
(Corrected) (Lay) (EFiled). 9c 11/24/2020 Shaw, J. -
Appellant's
Application and Brief in Support of Rehearing (Corrected) (Lay) (EFiled). 9c
11/24/2020
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
eb0aeec9-1253-4467-ae6f-8e0c37802f82 | Ex parte State of Alabama. | N/A | 1190723 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190723
Ex parte State of Alabama. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Terrance Patrick Saulter v.
State of Alabama) (Jefferson Circuit Court: CC-14-4672; Criminal Appeals :
CR-18-0986).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
a34ab738-3699-49a4-8191-4287f6e307a2 | Cadence Bank, N.A. v. Robertson | N/A | 1190997 | Alabama | Alabama Supreme Court | Rel: April 2, 2021
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, 2020-2021
_________________________
1190997
_________________________
Cadence Bank, N.A.
v.
Steven Dodd Robertson and Mary Garling-Robertson
Appeal from Madison Circuit Court
(CV-18-902299)
SELLERS, Justice.
Cadence Bank, N.A. ("Cadence"), sued Steven Dodd Robertson and
Mary Garling-Robertson, seeking to recover a debt the Robertsons
allegedly owe Cadence. The Madison Circuit Court ruled that Cadence's
claim is barred by the statute of limitations and, thus, granted the
1190997
Robertsons' motion for a summary judgment. We reverse the trial court's
judgment and remand the cause for further proceedings.
In November 2003, the Robertsons executed a loan agreement with
a lender called "The Bank" to acquire a home-equity line of credit. To
secure repayment, the Robertsons granted The Bank a mortgage on their
house. In February 2005, the Robertsons sent The Bank a check in the
approximate amount of $61,000, which was accompanied by a notice of
"satisfaction of loan/estoppel/cancellation of credit line." The parties refer
to the notice as a "kill letter."
The kill letter provided that the Robertsons' payment was in full
satisfaction of their debt incurred under the home-equity line of credit and
was being paid under the condition that The Bank release the mortgage
and "cancel the note or loan agreement as well as any right to obtain
future advances under the note or loan agreement." The kill letter also
provided that The Bank's endorsement of the check constituted assent to
the terms provided in the letter. Cadence does not dispute that The Bank
endorsed and deposited the check. There is no signature line on the kill
letter for a representative of The Bank.
2
1190997
Notwithstanding the language in the kill letter indicating that the
home-equity line of credit should be canceled, bank records produced by
Cadence suggest that, beginning in June 2005, four months after sending
the kill letter, the Robertsons began borrowing additional funds against
the home-equity line of credit. The parties do not point to any new
written loan agreement or other document indicating that, when the
Robertsons allegedly began drawing additional advances, a new account
or line of credit was opened on their behalf or a new loan number was
assigned to them.
An affidavit submitted by an officer of Cadence indicates that, in
January 2006, The Bank changed its name to Superior Bank; that, in
April 2011, Superior Bank was placed into receivership by the Federal
Deposit Insurance Corporation; that, shortly thereafter, Superior Bank,
N.A., obtained Superior Bank's assets and liabilities; and that, in
November 2011, Superior Bank, N.A., was merged into Cadence. Thus,
Cadence asserts, it became the owner of the assets and liabilities formerly
held by The Bank and its successors.
3
1190997
Records produced by Cadence suggest that, for approximately eight
years after submitting the kill letter, the Robertsons took additional
advances from, and made partial payments to, The Bank and its
successors, as if the initial home-equity line of credit was still active after
submission of the kill letter. The records indicate that the Robertsons'
final draw on the home-equity line of credit was made in August 2012 and
that their last payment was made in September 2013. Cadence suggests
that the Robertsons' alleged actions are inconsistent with one or more of
the terms of the kill letter and could be construed as a waiver thereof.
In December 2018, Cadence sued the Robertsons, seeking a judicial
foreclosure pursuant to the terms of the mortgage the Robertsons had
granted The Bank. Cadence also sought a money judgment for funds the
Robertsons allegedly owed pursuant to the above-referenced transactions.
After the lawsuit was initiated, Cadence learned of the kill letter, which,
as noted, contained language indicating that the Robertsons' mortgage
should have been released, their home-equity line of credit closed, and
further advances stopped. Thereafter, at Cadence's request, the trial
4
1190997
court dismissed the judicial-foreclosure count, leaving only Cadence's
count seeking a money judgment.
The Robertsons failed to respond to discovery requests propounded
by Cadence and, instead, filed a motion for a summary judgment. In
support, the Robertsons argued that Cadence's count seeking a money
judgment was based on a theory of "open account," which, as the
Robertsons asserted, is governed by a three-year statute of limitations.
See § 6-2-37, Ala. Code 1975 ("The following must be commenced within
three years: ... Actions to recover money due by open or unliquidated
account, the time to be computed from the date of the last item of the
account or from the time when, by contract or usage, the account is due
...."). The Robertsons argued that, because Cadence's records indicate that
advances to, and payments by, the Robertsons ended no later than
September 2013, the statute-of-limitations period on Cadence's count
seeking a money judgment expired in September 2016, more than two
years before Cadence commenced this action.
In its response to the Robertsons' summary-judgment motion,
Cadence asserted that, in its count seeking a money judgment against the
5
1190997
Robertsons, Cadence had not limited itself to an open-account theory of
liability. Specifically, Cadence asserted that it would pursue recovery of
the alleged debt pursuant to a theory alleging "account stated," which,
generally speaking, relies on the existence of a post-transaction agreement
whereby the parties to an original account agree that a particular amount
is owed. Stacey v. Peed, 142 So. 3d 529, 532 (Ala. 2013). Cadence pointed
out that account-stated claims are subject to a six-year statute of
limitations under § 6-2-24(5), Ala. Code 1975, and asserted that the
Robertsons cannot "recast" Cadence's cause of action in order to take
advantage of a shorter limitations period. The trial court, however,
concluded that Cadence had asserted an open-account claim and granted
the Robertsons' summary-judgment motion based on the expiration of the
three-year limitations period applicable to such a claim. Cadence filed a
postjudgment motion to alter, amend, or vacate the summary judgment,
which was denied by operation of law pursuant to Rule 59.1, Ala. R. Civ.
P. Cadence timely appealed. This Court applies a de novo standard when
reviewing a summary judgment. Nettles v. Pettway, 306 So. 3d 873, 875
(Ala. 2020).
6
1190997
Cadence, as the plaintiff, is the master of its complaint and is
entitled to choose the theory of liability on which it will rely in pursuit of
the Robertsons' alleged debt. See Ex parte J.E. Estes Wood Co., 42 So. 3d
104, 111 (Ala. 2010) (acknowledging that a plaintiff is the "master" of his
or her complaint); Cook v. Midland Funding, LLC, 208 So. 3d 1153, 1158
(Ala. Civ. App. 2016) ("[The defendant] does not have the ability to recast
[the plaintiff's] account-stated claim as an open-account claim so as to
benefit from the shorter statute-of-limitations period applicable to such a
claim ...."). Thus, Cadence asserts that it may seek to recover pursuant
to a theory other than open account.1
1In addition to alleging the existence of an agreement between the
Robertsons and Cadence or its predecessors based on an account-stated
theory, Cadence suggests in its brief to this Court that it may seek relief
based on theories other than account stated. The Court notes that
Cadence, in its response to the Robertsons' summary-judgment motion,
expressly represented that its count seeking a money judgment was based
on an account-stated theory. Cadence did not assert that it was pursuing
any other cause of action. In its postjudgment motion to alter, amend, or
vacate the summary judgment, Cadence did suggest that it could pursue
a cause of action alleging breach of contract based on theories other than
account stated. It also asserted for the first time that the Robertsons had
waived their statute-of-limitations defense by failing to plead it in their
answer to Cadence's complaint. However, in Green Tree Acceptance, Inc.
v. Blalock, 525 So. 2d 1366, 1369 (Ala. 1988), this Court held that "a trial
7
1190997
Count two of Cadence's complaint alleges that the Robertsons
"presently owe [Cadence] the sum of $60,166.25, along with interest in the
sum of $19,596.06 as of December 5, 2018, and late fees in the sum of
$14.69, ... along with reasonable attorney fees for the cost of collection."
Count two requests that the trial court enter a judgment finding that the
Robertsons "owe" Cadence the referenced amounts and attorney fees, but
it does not specify a particular theory of recovery, such as open account,
account stated, breach of contract, or any other theory.
In support of their argument that Cadence seeks to recover pursuant
to an open-account theory, the Robertsons relied on a statement made in
Cadence's motion to dismiss its judicial-foreclosure count. Specifically,
Cadence stated in that motion that, after dismissal of the judicial-
court has the discretion to consider a new legal argument in a
post-judgment motion, but is not required to do so." Cadence's
postjudgment motion was denied by operation of law pursuant to Rule
59.1, Ala. R. Civ. P. Thus, there is no indication that the trial court
considered the arguments made therein. On appeal, Cadence provides no
discussion as to why this Court should consider arguments that were
made for the first time in Cadence's postjudgment motion.
8
1190997
foreclosure count, its remaining claim would be "for a money judgment
against [the Robertsons] for default upon repayment of money lent to
them." (Emphasis added.) The Robertsons then pointed to a single
sentence from Stacey v. Peed, supra, in which this Court said: "[W]hat
could be stated as a money-lent claim is perhaps more accurately stated
as a claim of 'money due on an open account.' " 142 So. 3d at 533.
According to the Robertsons, because Cadence represented in its motion
to dismiss that it sought to recover money that was "lent" to the
Robertsons, Cadence's claim is necessarily based on an open-account
theory and is subject to a three-year limitations period.
In Stacey, the plaintiffs claimed that they had loaned the defendant
money that he failed to repay. They "alleged that [the defendant] owed
them $161,365.78 plus interest based upon three claims asserted in the
complaint -- breach of contract, account stated, and money lent." 142 So.
3d at 530. The trial court in Stacey entered a summary judgment in favor
of the defendant based on an apparent conclusion that the plaintiffs had
not presented substantial evidence establishing each element of their
causes of action.
9
1190997
On appeal, this Court held that the plaintiffs had indeed presented
substantial evidence establishing the elements of their breach-of-contract
claim, namely, offer and acceptance, consideration, and mutual assent to
the essential terms of the agreement. 142 So. 3d at 531-32. Accordingly,
the Court reversed the summary judgment on the plaintiffs' breach-of-
contract claim. As for the "money-lent" claim, the Court stated as follows:
" 'An action for money lent is an action at law
which lies whenever there has been a payment of
money from the plaintiff to the defendant as a loan.
" 'An action for money lent is an action at law
for the recovery of money, based on an allegation
that there was money lent to the defendant. The
three elements of a claim on money lent are that
the money was delivered to the defendant, the
money was intended as a loan, and the loan has not
been repaid.'
"42 C.J.S. Implied Contracts § 2 (2007). A review of Alabama
law reveals that what could be stated as a money-lent claim is
perhaps more accurately stated as a claim of 'money due on an
open account,' which contains identical factors.
" 'A plaintiff establishes a prima facie case in an
action for money due on [an] open account by
presenting evidence that money was delivered to
the defendant, that it was a loan, and that it has
not been repaid. 58 C.J.S. Money Lent § 7 (1948).'
10
1190997
"Livingston v. Tapscott, 585 So. 2d 839, 841 (Ala. 1991); see
also [Mantiply v.] Mantiply, 951 So. 2d [638,] 649 [(Ala.
2006)]."
142 So. 3d at 532-33. The Court in Stacey held that the plaintiffs could
pursue a claim alleging open account because they had presented
sufficient evidence indicating that they had loaned the defendant money
and that the defendant failed to repay the loan.2
In the present case, the Robertsons' summary-judgment motion,
which was based solely on the statute of limitations, relies on a conclusion
that Cadence necessarily is pursuing a claim alleging open account. But
nothing in Cadence's complaint limits Cadence to that theory of liability.
And, we are not convinced that Cadence's use of the phrase "money lent
to [the Robertsons]" in its motion to dismiss the judicial-foreclosure count
was a concession that Cadence was pursuing only an open-account cause
of action. The primary business activity of Cadence and its predecessors
is the lending of money, and the allegation that Cadence or its
2The Court affirmed the summary judgment on the plaintiffs'
account-stated claim because the plaintiffs had not presented sufficient
evidence of "a 'new agreement' to an original account." 142 So. 3d at 532.
11
1190997
predecessors "lent" money to the Robertsons is consistent with theories of
liability other than open account. Certainly nothing in Stacey suggests
that a plaintiff's allegation that he or she lent money to a defendant
necessarily limits the plaintiff to a cause of action alleging open account.
To the contrary, the opinion in Stacey suggests that an unpaid loan might,
depending on the circumstances, support theories alleging open account,
breach of contract, and account stated.3
The Robertsons argue in their brief to this Court that Cadence
cannot present substantial evidence in support of an account-stated claim
3As noted, this Court has stated that "[a] plaintiff establishes a
prima facie case in an action for money due on open account by presenting
evidence that money was delivered to the defendant, that it was a loan,
and that it has not been repaid." Livingston v. Tapscott, 585 So. 2d 839,
841 (Ala. 1991) (citing 58 C.J.S. Money Lent § 7 (1948)). Black's Law
Dictionary defines "open account" as "[a]n unpaid or unsettled account"
and "[a]n account that is left open for ongoing debit and credit entries by
two parties and that has a fluctuating balance until either party finds it
convenient to settle and close, at which time there is a single liability."
Black's Law Dictionary 23 (11th ed. 2019). Traditionally, open accounts
arise in situations in which credit is extended ancillary to the creditor's
primary business and is provided to customers as part of a transaction for
the purchase of goods or services. See 1 C.J.S. Account, Action on § 1
(2016) (describing an open account in part as "an unsettled debt arising
from items of work and labor, or goods sold and delivered, with the
expectation of further transactions subject to further settlement").
12
1190997
or a breach-of-contract claim.4 The Robertsons' summary-judgment
motion, fairly read, was based only on the statute of limitations and relied
on the unconvincing assertion that, because Cadence had used the phrase
"money lent to [the Robertsons]" in its motion to dismiss the judicial-
foreclosure count, Cadence had conceded that it was pursuing only a time-
barred open-account claim. The Robertsons did not argue that Cadence
could not present substantial evidence establishing the elements of
another theory of liability.5 This Court will not affirm a summary
judgment based on the alleged lack of substantial evidence "where a
summary-judgment movant has not asserted before the trial court a
4Yet, before filing their motion for a summary judgment, the
Robertsons failed to respond to the discovery requests propounded by
Cadence. Thus, Cadence did not have an opportunity to fully obtain
relevant documents, interrogatory responses, or responses to requests for
admission that might support theories other than open account.
5In their summary-judgment motion, the Robertsons made the
factual averment that "[a]ny subsequent advances from Cadence or its
predecessor to [the Robertsons after submission of the kill letter and
check] were made with a lack of any written note or loan agreement
between the parties." The Robertsons, however, did not assert that the
alleged lack of a new written note or loan agreement negated essential
elements of causes of action on which Cadence might rely as alternatives
to an open-account theory.
13
1190997
failure of the nonmovant's evidence on an element of a claim or defense
and therefore has not shifted the burden of producing substantial evidence
in support of that element." Liberty Nat'l Life Ins. Co. v. University of
Alabama Health Servs. Found., P.C., 881 So. 2d 1013, 1020 (Ala. 2003).
Based on the above-stated reasoning, we reverse the trial court's
judgment and remand the matter for further proceedings. Our holding is
based on the conclusion that the Robertsons' summary-judgment motion
did not establish that Cadence seeks to recover only pursuant to an open-
account theory subject to a three-year limitations period. The Robertsons
did not assert any basis in support of their summary-judgment motion
other than the statute of limitations. We express no opinion on the
ultimate merits of Cadence's action.
REVERSED AND REMANDED.
Bolin, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur.
Parker, C.J., and Shaw and Wise, JJ., dissent.
14
1190997
SHAW, Justice (dissenting).
The plaintiff below, Cadence Bank, N.A. ("Cadence"), has not
demonstrated on appeal that the trial court erred in entering a summary
judgment in favor of the defendants, Steven Dodd Robertson and Mary
Garling-Robertson. Therefore, I respectfully dissent.
Cadence's complaint alleged that it was a mortgagee of the
Robertsons' property, that it gave the Robertsons a notice of default, and
that it declared the balance due and payable in full. Count one of the
complaint sought judicial foreclosure on the property. Count two alleged
that the Robertsons "presently owe [Cadence] ... $79,777.00." Cadence
later moved to dismiss its judicial-foreclosure count. In its motion, it also
stated: "[Cadence's] remaining claim is Count Two for a money judgment
against [the Robertsons] for default upon repayment of money lent to
them by [Cadence]." In their motion for a summary judgment, the
Robertsons noted that Cadence's characterization of its "remaining claim"
in count two as seeking a judgment for failure to repay "money lent to
them" indicated that the count sought damages on a claim of an open
15
1190997
account. They cited Stacey v. Peed, 142 So. 3d 529 (Ala. 2013), which states:
"'An action for money lent is an action at law
which lies whenever there has been a payment of
money from the plaintiff to the defendant as a loan.
"'An action for money lent is an action at law
for the recovery of money, based on an allegation
that there was money lent to the defendant. The
three elements of a claim on money lent are that
the money was delivered to the defendant, the
money was intended as a loan, and the loan has not
been repaid.'
"42 C.J.S. Implied Contracts § 2 (2007). A review of Alabama
law reveals that what could be stated as a money-lent claim is
perhaps more accurately stated as a claim of 'money due on an
open account,' which contains identical factors.
"'A plaintiff establishes a prima facie case in an
action for money due on [an] open account by
presenting evidence that money was delivered to
the defendant, that it was a loan, and that it has
not been repaid. 58 C.J.S. Money Lent § 7 (1948).'
"Livingston v. Tapscott, 585 So. 2d 839, 841 (Ala. 1991); see
also Mantiply [v. Mantiply], 951 So. 2d [638,] 649 [(Ala.
2006)]."
Stacey, 142 So. 3d at 532-33.
Cadence's statement in its motion to dismiss that it had "lent"
money to the Robertsons does not operate to limit count two of the
16
1190997
complaint to a "money-lent" or open-account claim. Instead, it appears to
simply be a recitation of what factually occurred and was not an attempt
by Cadence to define its claim under a specific legal theory. Nevertheless,
the allegations and evidence in this case indicate that money was
delivered to the Robertsons, that the transaction was in the nature of a
loan, and that the loan had not been repaid. It seems clear to me that,
based on the Robertsons' summary-judgment motion alone, the trial court
could have determined that Cadence's claim could be deemed as seeking
damages on a theory of an open account; the facts suggest that every
element of such a claim might exist. Cadence appears to acknowledge
this, but it argues that, to the extent that count two alleged a claim on an
open account, the trial court should have granted only a partial summary
judgment limited to such a claim. Thus, to the extent that the complaint
alleged an open-account claim, the trial court properly entered a summary
judgment on that claim on the basis that it is barred by the applicable
statute of limitations. See Ala. Code 1975, § 6-2-37.
On appeal, Cadence criticizes the Robertsons' and the trial court's
reliance on Stacey, supra, as supporting the argument that count two
17
1190997
alleged solely a claim of an open account. Cadence notes that, in Stacey,
the plaintiffs alleged that the defendant "owed" a certain amount and
"asserted in the complaint" claims of breach of contract, account stated,
and money lent. Cadence then quotes large portions of the analysis in
Stacey regarding all three claims and argues that claims of breach of
contract6 and account stated are separate claims from a claim on an open
account. In sum, Cadence appears to argue that Stacey does not support
the trial court's decision because Stacey also recognizes that the scenario
in that case, in which one party was alleged to "owe" money, could
encompass both an open account-claim and an account-stated claim.
The distinction, however, is that the plaintiffs in Stacey explicitly
alleged an account-stated claim in their complaint. Cadence appears to
be arguing that Stacey stands for the proposition that an open-account
claim can exist in conjunction with an account-stated claim, that is, that
the existence of an open-account claim does not foreclose an account-
6As noted in the main opinion, Cadence did not argue in the trial
court that count two alleged a claim of breach of contract; therefore, any
argument on appeal on that issue was waived.
18
1190997
stated claim. Although that might be true, these two types of claims were
addressed in Stacey not because they both might exist as a matter of law
under the facts of that case, but because both were actually alleged in the
complaint.
Although a general allegation that one is "owed" money could
encompass both an open-account claim and an account-stated claim,
Cadence does not specifically discuss how count two alleges an account-
stated claim and does not address how the facts in this case might
demonstrate the existence of such a claim. Instead, it simply contends
that Stacey does not support the argument that the only claim Cadence
alleged was one based on an open account. Further, in its brief, Cadence
argues:
"To have been entitled to a summary judgment
dismissing this case entirely, [the Robertsons] would have
needed to have demonstrated as a matter of law that
[Cadence] could not prevail on a claim of ... Account Stated for
purposes of collecting on the debt that was the subject of Count
Two in the Complaint."
19
1190997
However, on appeal the burden is now on Cadence to show that it alleged
an account-stated claim in the first place. It is not enough to simply note
that in Stacey, a factually distinguishable case, both claims existed.
In an alternate argument, Cadence contends that the Robertsons did
not establish that they were entitled to a summary judgment on an
account-stated claim because a letter from Cadence to the Robertsons
dated December 1, 2017, contained a "full Statement of Account"; in other
words, according to Cadence, the letter was substantial evidence of a
rendering of a statement of the account. See Gilbert v. Armstrong Oil Co.,
561 So. 2d 1078, 1081 (Ala. 1990) ("When an account is rendered or
presented to the debtor and the debtor does not object to it within a
reasonable time, the failure to object is regarded as an admission that the
account is correct, and it becomes an account stated."). However,
Cadence's response to the motion for a summary judgment did not
mention the December 1 letter or otherwise show that a statement of an
account had been rendered or presented to the Robertsons. This
argument cannot be raised for the first time on appeal. See Dunlap v.
Regions Fin. Corp., 983 So. 2d 374, 377 (Ala. 2007) ("Because the
20
1190997
arguments
Dunlap
now
advances
in
opposition
to
Regions'
summary-judgment motion were not presented to the trial court, they are
not properly before this Court ....")
Cadence also argues that it was hampered in responding to the
motion for a summary judgment because the Robertsons failed to respond
to discovery. Cadence cites Parr v. Goodyear Tire & Rubber Co., 641 So.
2d 769, 771 (Ala. 1994), which states:
"The [appellants] correctly state that if it can be
ascertained that the information sought by pending
interrogatories and requests for production of documents is
crucial to the nonmoving party's case, it is error to enter a
summary judgment before the party moving for summary
judgment has produced the documents and answers to the
interrogatories."
Cadence raised this issue in opposition to the motion for a summary
judgment, but it did not explain to the trial court what the discovery
would reveal or why it was crucial. Cf. Unger v. Wal-Mart Stores E., L.P.,
279 So. 3d 546, 552 (Ala. 2018) ("The plaintiff apparently filed three
motions to compel discovery, yet she does not disclose to this Court the
specific discovery that she requested, nor does she argue that she was
unable to adequately respond to the ... defendants' summary-judgment
21
1190997
motion in the absence of the requested discovery."). Further, it does not
appear that Cadence invoked Rule 56(f), Ala. R. Civ. P. See Vick v.
Sawyer, 936 So. 2d 517, 521 (Ala. 2006) ("'Rule 56(f) protects a party
opposing a motion for summary judgment if the party states reasons why
he cannot present essential facts.' Starks v. Commercial Union Ins. Co.,
501 So. 2d 1214, 1216 (Ala. 1987). Proper application of Rule 56(f) requires
the nonmoving party to demonstrate by affidavit ... 'that matters it seeks
by further discovery are "crucial" to its case.' Smith v. Yanmar Diesel
Engine Co., 855 So. 2d 1039, 1042 (Ala. 2003)."). Therefore, I do not
discern reversible error with respect to this issue.
22 | April 2, 2021 |
a0a38530-0c06-4295-9dbf-2ad9b61c2e70 | Myers v. Evans | 255 So. 2d 581 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 581 (1971)
Harvey Sherman MYERS and Dairy Fresh Corporation
v.
Theodore EVANS.
1 Div. 637.
Supreme Court of Alabama.
December 2, 1971.
Rehearing Denied December 30, 1971.
Fred F. Smith, Jr., Prichard, and Johnston, Johnston & Kendall, Mobile, for appellants.
*582 Cunningham, Bounds & Byrd, Mobile, for appellee.
BLOODWORTH, Justice.
This is an appeal by the defendants from a judgment for plaintiff rendered by the circuit court of Mobile County. Suit for damages was filed by plaintiff-appellee Theodore Evans against defendants-appellants Harvey Sherman Myers and Dairy Fresh Corporation alleging negligence and wantonness arising out of an automobile accident in Clarke County. There was a verdict and judgment for $22,000 for appellee Evans. Both Myers and Dairy Fresh appeal.
There are two questions presented by this appeal. The first is whether there was sufficient evidence of wantonness to submit that question to the jury. The second is whether certain testimony given in a deposition by appellee's examining physician was properly excluded. We are of the opinion that both of these questions must be answered in the affirmative and that the decision of the trial court should be affirmed.
In Rosen v. Lawson, 281 Ala. 351, 356, 202 So. 2d 716, 720 (1967), this court held that,
When taken most favorably to the appellee, the facts in this case are as follows. Before dawn on the morning of October 21, 1967, a two-vehicle accident occurred on Highway 43 just north of Grove Hill, Alabama, in Clarke County. The terrain in this area is hilly and the accident occurred some 300 feet north of the crest of a steep hill. Shortly afterwards, Alabama State Trooper Marshall Dannelly arrived at the scene and proceeded to investigate the accident. The appellee, Theodore Evans, approached from the north, stopped at the scene, and parked his pickup truck on the west side of the highway completely off the road. At this time the appellant Myers approached from the south driving a fully loaded milk truck. Myers acknowledged that he was familiar with the road and knew it to be a dangerous area of limited visibility. He acknowledged that his lights were on dim because his bright lights were not properly adjusted. Appellant Myers was driving five miles per hour over the speed limit. Trooper Dannelly testified that, in his opinion, the reflection from the revolving blue light atop his patrol car would be visible from the top of the hill to the south of the hill below which the accident occurred. When appellant Myers crested the hill above the scene of the accident his attention was first attracted to the patrol car parked to his left. He testified that he took his eyes off the road ahead and glanced over at the patrol car. He says he assumed a driver was being given a traffic ticket. When he looked back at the road he saw two men directly in his path. One was Trooper Dannelly and the other was Clifford Lucy, a passenger in one of the cars involved in the first accident. Appellant Myers' truck first struck Trooper Dannelly injuring him, then struck and killed Lucy. The truck then skidded 111 feet, collided with appellee's truck, skidded another 51 feet and turned over before coming to rest. Appellee was still in his pickup truck when the collision occurred and suffered various injuries to his head, neck and back.
Appellee's amended complaint consisted of two counts. The first count charged negligence, the second count charged wantonness. At the conclusion of the case, appellants requested the affirmative charge in writing with respect to the wanton count. The trial court refused to give the charge and this is assigned as *583 error. Appellants also assign as error denial of motion for new trial.
It is a well settled proposition of law in this State that,
The following is equally well established:
"Wantonness has been defined as the conscious doing of some act or omission of some duty under knowledge of existing conditions and conscious that from the doing of such act or omission of such duty injury will likely or probably result. * *" Graves v. Wildsmith, 278 Ala. 228, 231, 177 So. 2d 448, 451 (1965); Britton v. Doehring, 286 Ala. 498, 502, 242 So. 2d 666, 669 (1970); Alabama Great Southern R. Co. v. Johnston, 281 Ala. 140, 149, 199 So. 2d 840, 848 (1967).
"Wantonness may arise from knowledge that persons, though not seen, are likely to be in a position of danger, and with conscious disregard of known conditions of danger and in violation of law brings on the disaster. * * *" Lewis v. Zell, 279 Ala. 33, 36, 181 So. 2d 101, 104 (1965); Blount Bros. Construction Co. v. Rose, 274 Ala. 429, 437, 149 So. 2d 821, 830 (1962). 15 Ala.Dig., Negligence.
"It has also been said that knowledge need not be shown by direct proof but may be shown by adducing facts from which knowledge is a legitimate inference. * *" Britton v. Doehring, supra, 286 Ala. at p. 502, 242 So.2d at p. 669.
We are of the opinion that the evidence, and reasonable inferences therefrom, in this case are sufficient on the issue of wantonness to satisfy the scintilla rule. Taking the tendencies of the evidence most favorable to appellee, the jury could conclude that appellant Myers: (1) knew that he was entering a dangerous area of hills, gullies, and limited visibility; (2) knew that he was deprived of the additional visibility of his bright lights; (3) knew as soon as he saw the patrol car's emergency light or its reflection that there was a traffic mishap or traffic violation ahead; (4) nevertheless, in spite of such knowledge, and with conscious disregard of the likelihood of injuring others, he entered the area at a rate of speed in excess of the speed limit; then, (5) consciously and intentionally took his eyes off the road immediately ahead to look at the patrol car on the left of the highway. We therefore conclude that appellant's request for the affirmative charge was properly refused.
We think that appellants' motion for new trial was properly denied. In the light of our conclusion that the trial court properly submitted the issue of wantonness to the jury, the damages awarded do not appear to be excessive. Even were our opinion otherwise, however, the authority of this court to disturb a verdict on the grounds of excessiveness should be exercised with great caution and a case should not be reversed merely because in the opinion of this court the jury gave too little or too much. Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689 (1963). We are unwilling, as we have observed in the past, to substitute our judgment for that of the trier of the facts.
Title 7, § 276, Code of Alabama 1940, provides that a new trial may be granted *584 where the "decision is not sustained by the great preponderance of the evidence." But, this court has held:
In Kurn v. Counts, 247 Ala. 129, 133, 22 So. 2d 725, 728 (1945), this court said:
We have already pronounced our opinion that the issue of wantonness in this case was properly submitted to the jury and we cannot say that the evidence so greatly preponderates against the jury's verdict as to convince us the verdict was wrong and unjust so as to require a new trial.
The next issue concerns the sustaining by the trial court of an objection to a certain answer given by Dr. Kimbrough, the physician who treated appellee following the accident. Prior to the trial, the deposition of Dr. Kimbrough was taken by counsel for appellee. During the course of his testimony the following question was asked:
The answer was as follows:
There was no objection to the answer at the time the deposition was taken. At the trial, appellee introduced portions of Dr. Kimbrough's deposition into testimony, but omitted the above answer. When appellants attempted to introduce this answer, appellee objected on grounds that the answer was unresponsive to the question. Attorney for appellee stated, among other things, viz.:
The trial court sustained the objection and excluded the testimony. Appellants contend that this ruling constitutes reversible error because the answer was not unresponsive. They argue the answer reflects *585 the doctor's opinion that appellee was malingering, which by implication includes an opinion that appellee's complaints were not caused by the accident.
We consider the answer to be unresponsive. The question asked was whether in the doctor's opinion the injuries complained of were caused by the accident. The answer, however, contained three separate responses: (1) that appellee was injury prone; that he had a new complaint every time the doctor had seen him since 1965; (2) that the doctor thought appellee was riding his injuries and had gotten various other doctors to see him to make sure that he wasn't overlooking something; (3) that appellee could have gone to work if he wanted to.
None of these responses constitute an answer to the question as to whether appellee's complaints were caused by the accident. Rather than giving any indication of the cause of injury, the answer was directed to appellee's medical history, the authenticity of his injuries, and the time required for recovery.
We are mindful of the contention of appellants that an answer is not unresponsive merely because an extensive answer was given when a negative or affirmative response would have been adequate. However, the defect of this answer lies, not in the fact that it was more extensive than the question contemplated, but that in fact, it actually fails to answer the question asked. There is nothing in the answer from which it can be unmistakenly concluded that, in the doctor's opinion, the injuries either were or were not caused by the accident.
Appellants contend, in the alternative, that even if the answer was unresponsive, the failure of appellee to object at the time the deposition was taken waived his right to object at trial. Appellee contends that the stipulation entered into by the parties before the taking of the deposition eliminated the necessity of objecting during the deposition and preserved his right to object at the trial.
This stipulation was never introduced into evidence but it is apparent from the record that it was before the trial court and was considered by the court when it made its ruling on this question. The trial court concluded that under the terms of the stipulation, appellee could object to the answer at trial even though he had not objected at the time the deposition was taken. The trial court stated its conclusion as follows:
In United Insurance Company of America v. Ray, 271 Ala. 543, 547, 125 So. 2d 704, 707 (1960), this court held:
Since the record clearly indicates that the trial court based its ruling on a stipulation which was before the trial court, but was not introduced into evidence and is not before us, we must presume, on this appeal, that the terms of the stipulation justified the trial court's ruling that the objection was not waived. United Insurance Company of America v. Ray, supra.
Further, we are of the opinion that the exclusion of Dr. Kimbrough's testimony was, if error, harmless error, because his answer was substantially covered by his previous testimony. He testified extensively as to the nature and character of appellee's injuries. He also testified as to all the other complaints which appellee had made to him since he first saw him in *586 1965. He testified as to other physicians to whom he had referred appellee and the results of their findings. In addition, his testimony was that appellee should go back to work as soon as he could and that he could have gone to work in three months. There is even a reference to "riding his injuries" in a Dr. Russell's diagnosis to the effect that appellee "still feigned weakness of grip bilaterally," which was related by Dr. Kimbrough in his deposition.
We conclude that the trial court did not err in refusing the affirmative charge, denying motion for new trial, or in excluding Dr. Kimbrough's answer. The judgment must accordingly be affirmed.
Affirmed.
LAWSON, COLEMAN and McCALL, JJ., concur.
HEFLIN, C. J., concurs in the result. | December 2, 1971 |
4f4869b7-31bc-45ea-8d68-4126a737f1d0 | Ex parte John Allen Lingerfelt. | N/A | 1200417 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200417
Ex parte John Allen Lingerfelt. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: John Allen Lingerfelt v.
Alabama Board of Pardons &
Paroles and Alabama Department of
Corrections) (Limestone Circuit Court: CV-20-29.60; Criminal Appeals :
CR-20-0165).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 16, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and W
ise, Sellers, and
Stewart, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
89945172-13be-415f-a0ea-9d6a6204b4ab | Thomas J. Cantone v. Woodside Condominium Association, Inc. and Metcalf Realty Company, Inc. | N/A | 1191035 | Alabama | Alabama Supreme Court | Rel: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1191035
Thomas J. Cantone v. Woodside Condominium Association, Inc., and
Metcalf Realty Company, Inc. (Appeal from Jefferson Circuit Court:
CV-13-903587).
SELLERS, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Stewart, JJ., concur. | March 12, 2021 |
a7456603-7fe3-488e-8b71-e726bafc20a1 | Ex parte Tracy H. Besselaar. | N/A | 1200237 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 2, 2021
1200237
Ex parte Tracy H. Besselaar. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Tracy H. Besselaar v.
Alabama Board of Pardons and Paroles) (Montgomery Circuit Court:
CV19-614; Criminal Appeals :
CR-19-0946).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
April 2, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Shaw,
Wise, Bryan, Sellers, Mendheim, and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 2nd day of April, 2021.
Clerk, Supreme Court of Alabama | April 2, 2021 |
939207be-a86e-42ae-be23-9c40df728452 | Ex parte Encompass Health Corporation. | N/A | 1190797 | Alabama | Alabama Supreme Court | Rel: March 12, 2021
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, 2020-2021
____________________
1190797
____________________
Ex parte Encompass Health Corporation
PETITION FOR WRIT OF MANDAMUS
(In re: Steven R. Nichols
v.
Encompass Health Corporation)
(Jefferson Circuit Court, CV-03-2023)
BRYAN, Justice.
1190797
Encompass Health Corporation, formerly known as HealthSouth
Corporation ("HealthSouth"), petitions this Court for a writ of mandamus
directing the Jefferson Circuit Court ("the trial court") to vacate an order
entered on June 17, 2020, which amended a February 26, 2016, order
entered by the trial court dismissing with prejudice several defendants in
the underlying action, to dismiss those defendants without prejudice. For
the reasons set forth herein, we grant the petition and issue the writ.
Procedural History
This is the second time this case has been before this Court. See
Nichols v. HealthSouth Corp., 281 So. 3d 350 (Ala. 2018). The underlying
action was initiated in March 2003 by Steven R. Nichols, a former
employee of HealthSouth and a holder of HealthSouth stock; Nichols
initially sued HealthSouth, Richard Scrushy, Weston Smith, William
Owens, and the accounting firm Ernst & Young, alleging fraud and
negligence.1 As we noted in Nichols, "[t]he action was delayed for 11 years
1At the time the action was initiated, and at various points
throughout the underlying litigation, there were additional plaintiffs and
defendants in this action; however, Nichols is the only remaining plaintiff
and HealthSouth the only remaining defendant.
2
1190797
for a variety of reasons," 281 So. 3d at 352, but, in the meantime, Nichols
filed several amended complaints. In his fifth amended complaint, Ernst
& Young was not named as a defendant, but Nichols named an additional
individual defendant, Eugene Smith (Eugene Smith, Richard Scrushy,
Weston Smith, and William Owens are hereinafter collectively referred to
as "the individual defendants").
On November 25, 2014, Nichols filed his eighth amended complaint,
which named HealthSouth as the only defendant. At the same time,
Nichols filed a "motion to dismiss [the] individual defendants without
prejudice." (Emphasis added.) In that motion, Nichols "specifically
reserve[d] all claims against HealthSouth ... based upon respondeat
superior and vicarious liability theories."
On February 26, 2016, the trial court entered an order providing
that Nichols's eighth amended complaint controlled, that HealthSouth
was the only remaining defendant in the action, and that there were now
no claims asserted against any of the other defendants named in the
previously filed complaints. The trial court stated: "All defendants other
than HealthSouth ... are accordingly dismissed from this action with
3
1190797
prejudice." (Emphasis added.) There is no dispute that all parties received
notice of the trial court's February 2016 order dismissing the individual
defendants with prejudice.
HealthSouth subsequently filed a motion to dismiss Nichols's eighth
amended complaint, arguing, among other things, that "the claims
asserted in that complaint were derivative in nature rather than direct
and were therefore due to be dismissed" based on Nichols's failure to
comply with the demand-pleading requirements of Rule 23.1, Ala. R. Civ.
P. Nichols, 281 So. 3d at 354. The trial court conducted a hearing on that
motion in May 2016. During that hearing, when summarizing the
procedural history of the case, counsel for HealthSouth stated that Nichols
had "inexplicably dismissed Mr. Scrushy" from the action and pointed out
that the trial court had dismissed him "with prejudice." On May 26, 2016,
the trial court entered a judgment granting HealthSouth's motion to
dismiss, concluding that, under Delaware law, which applied to the issue
before the trial court, "a shareholder may not pursue a direct claim based
on the diminution in stock value that all other shareholders suffered."
4
1190797
Nichols appealed that judgment; HealthSouth was the only appellee
identified by Nichols in his notice of appeal.
On appeal, this Court addressed only two issues: (1) whether the
claims asserted in the eighth amended complaint related back to Nichols's
complaint so that those claims were not barred by the statute of
limitations and (2) whether the claims raised in the eighth amended
complaint were direct or derivative claims. See Nichols, supra. Nichols
did not challenge on appeal the trial court's February 2016 order
dismissing the individual defendants with prejudice. This Court held that
the claims in the eighth amended complaint related back to the original
complaint and, thus, were not barred by the statute of limitations; we also
reversed the trial court's judgment insofar as it concluded that the claims
raised in the eighth amended complaint were due to be dismissed under
Delaware law. Thus, we remanded the cause "for further proceedings."
Nichols, 281 So. 3d at 363. HealthSouth's application for rehearing was
overruled on March 22, 2019, and a certificate of judgment was issued the
same day.
5
1190797
On remand, the parties engaged in further discovery, and, on March
2, 2020, HealthSouth filed a motion for a summary judgment as to all of
Nichols's claims against it. HealthSouth summarized its basis for seeking
a summary judgment as follows:
"[HealthSouth] is entitled to judgment in its favor on
Nichols's claims because his claims are based solely on alleged
representations made by HealthSouth's former agent, Richard
Scrushy, and his claims against Scrushy were dismissed with
prejudice. Under Alabama law, if a plaintiff bases its claims
against a principal entity on the conduct of the principal's
agent, the dismissal with prejudice of the claims against the
agent necessarily foreclose the plaintiff's claims against the
principal. Accordingly, the Court should grant summary
judgment in [HealthSouth's] favor and dismiss Nichols's
claims."
In response to HealthSouth's motion, Nichols filed a motion to
amend the trial court's February 2016 order dismissing Scrushy and the
other individual defendants with prejudice. Nichols asked the trial court
to amend the order to reflect that he had specifically reserved his right to
proceed against HealthSouth or, in the alternative, to amend the order to
reflect that the individual defendants were dismissed without prejudice.
6
1190797
HealthSouth objected to Nichols's motion to amend the February
2016 order, arguing that the order had become final at the time the trial
court dismissed Nichols's eighth amended complaint and that, because
Nichols had failed to appeal the trial court's judgment dismissing the
individual defendants with prejudice, that issue was waived on appeal and
the trial court had no authority to amend that final judgment on remand,
unless permitted by Rule 60, Ala. R. Civ. P. HealthSouth further argued
that none of the grounds for relief from a final judgment set forth in Rule
60(b), Ala. R. Civ. P., applied in this case.
After both parties filed additional briefs, the trial court conducted a
hearing on May 26, 2020. At the outset of the hearing, in reference to the
February 2016 order that had dismissed the individual defendants with
prejudice, instead of dismissing them without prejudice as Nichols had
requested, the trial-court judge stated: "I can't tell you why I did that
other than to say that it was probably just a mistake on my part."
On June 17, 2020, the trial court granted Nichols's motion to amend
and amended the February 2016 order to reflect that the individual
defendants were dismissed from the action without prejudice. The trial
7
1190797
court concluded that "the effect of [this Court]'s decision [in Nichols,
supra,] was simply to throw out the order of May 26, 2016. No other
decision of [the trial court] was impacted." Then, determining that the
"mandate rule" -- which generally provides that a lower court may not
reconsider issues already decided by an appellate court -- did not apply
under the circumstances, the trial court concluded that it had discretion
to amend the February 2016 order, that amending the order would be "fair
and proper," and that it had erred in dismissing the individual defendants
with prejudice after Nichols specifically notified the trial court and
HealthSouth of his intent to preserve his claims against HealthSouth.
The same day, the trial court entered an order denying HealthSouth's
motion for a summary judgment.
HealthSouth timely filed a petition seeking mandamus review of the
trial court's June 2020 order amending its February 2016 order.
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
8
1190797
jurisdiction of the court.' " ' Ex parte Sears, Roebuck & Co., 895
So. 2d 265[, 268] (Ala. 2004) (quoting Ex parte Mardis, 628 So.
2d 605, 606 (Ala. 1993)(quoting in turn Ex parte Ben-Acadia,
Ltd., 566 So. 2d 486, 488 (Ala. 1990))). 'The petitioner bears
the burden of proving each of these elements before the writ
will issue.' Ex parte Glover, 801 So. 2d 1, 6 (Ala. 2001)(citing
Ex parte Consolidated Publ'g Co., 601 So. 2d 423 (Ala. 1992))."
Ex parte Vance, 900 So. 2d 394, 397 (Ala. 2004).
Analysis
In its petition, HealthSouth first argues that the trial court violated
the mandate rule by amending the February 2016 order dismissing the
individual defendants with prejudice following remand from this Court
because Nichols did not appeal any aspect of that order once it became
final. Considering the requirements for the issuance of a writ of
mandamus set forth above, we first note that it is undisputed that the
jurisdiction of this Court has been properly invoked. Further, this Court
has held that " '[a] petition for a writ of mandamus is the proper method
for bringing before an appellate court the question whether a trial court,
after remand, has complied with the mandate of this Court or of one of our
intermediate appellate courts.' " Ex parte International Refin. & Mfg. Co.,
153 So. 3d 774, 783 (Ala. 2014) (quoting Ex parte Edwards, 727 So. 2d
9
1190797
792, 794 (Ala. 1998)). Accordingly, we must determine whether
HealthSouth has demonstrated a clear legal right to the relief it seeks --
an order vacating the trial court's June 2020 order amending its February
2016 order.
First, HealthSouth contends that the "trial court violated the
mandate rule when it amended its [February 2016] with-prejudice
dismissal order following remand [from Nichols, supra,] because Nichols
did not appeal [any aspect of that order], and therefore waived any
challenge to the with-prejudice aspect of the final judgment."
HealthSouth's petition at 9. We agree that the trial court's February 2016
order dismissing the individual defendants with prejudice -- though
interlocutory at the time it was entered -- became final on May 26, 2016,
when the trial court dismissed Nichols's claims against the only remaining
defendant in the action -- HealthSouth. See Dickerson v. Alabama State
Univ., 852 So. 2d 704, 705 (Ala. 2002) ("The general rule is that a trial
court's order is not final unless it disposes of all claims as to all parties."
(citing Rule 54(b), Ala. R. Civ. P.)); and Robert S. Grant Constr., Inc. v.
Frontier Bank, 80 So. 3d 901, 902 (Ala. 2011) (noting that, in the absence
10
1190797
of a proper Rule 54(b) certification, "[i]t is only in the context of an
otherwise final and appealable judgment that an interlocutory order ...
merges with the final judgment and becomes reviewable by way of
appeal"). It is undisputed that, after the February 2016 order became a
final judgment, Nichols did not challenge any aspect of the February 2016
order on appeal and that this Court, in Nichols, did not modify or address
any aspect of the February 2016 order. As noted above, this Court in
Nichols reversed the May 2016 judgment dismissing Nichols's eighth
amended complaint; held that Nichols's claims were, under Delaware law,
"direct in nature"; and remanded the cause "for further proceedings." 281
So. 3d at 363.
Thus, we must determine whether the trial court, by modifying an
otherwise final judgment on remand from proceedings that did not disturb
or address that final judgment, exceeded the scope of this Court's mandate
in Nichols. Concerning the mandate rule, this Court has stated:
"An appellate court's decision is final as to the matters
before it, becomes the law of the case, and must be executed
according to the mandate. Ex parte Edwards, 727 So. 2d 792,
794 (Ala. 1998). Generally, a lower court 'exceeds its authority'
by addressing issues already decided by an appellate court's
11
1190797
decision in that case. Lynch v. State, 587 So. 2d 306, 308 (Ala.
1991). In Anderson v. State, 796 So. 2d 1151, 1156 (Ala. Crim.
App. 2000) (opinion on return to remand), the Alabama Court
of Criminal Appeals held that a trial court's order on remand
that exceeded the scope of the appellate court's remand order
'exceeded [the trial court's] jurisdiction' and was 'a nullity.' See
also Ellis v. State, 705 So. 2d 843, 847 (Ala. Crim. App. 1996)
(on application for rehearing on second return to remand)
('[T]he trial court had no jurisdiction ... to take any action
beyond the express mandate of this court.'), and Peterson v.
State, 842 So. 2d 734, 740 (Ala. Crim. App. 2001) (opinion on
return to third remand) (holding that a trial court 'did not
have jurisdiction' to enter an order that exceeded the scope of
the appellate court's remand order and that, therefore, its
order was 'void'). Similarly, in Ex parte DuBose Construction
Co., 92 So. 3d 49, 58 (Ala. 2012), this Court held that an order
by a trial court that was outside the scope of an appellate
mandate was void."
Honea v. Raymond James Fin. Servs., Inc., 279 So. 3d 568, 570-71 (Ala.
2018) .
HealthSouth contends that "the trial court erroneously held that
only matters expressly addressed by an appellate court cannot be
relitigated on remand." HealthSouth's petition at 14. The trial court
reasoned that it had authority to amend the February 2016 order on
remand from Nichols because the "effect" of this Court's decision in
Nichols "was simply to throw out the order of May 26, 2016," dismissing
12
1190797
the eighth amended complaint. Thus, it appears that the trial court
reasoned that it had authority to amend the February 2016 order on
remand because this Court did not expressly include in its mandate that
the trial court could not amend any final judgments pertaining to other
parties to the proceeding below that had not been a subject of the appeal.
Such reasoning is inconsistent with Alabama law and with the law applied
by various United States Courts of Appeals.
As referenced above, the "mandate rule" is an application of the law-
of-the-case doctrine. See Honea, supra; and Cambridge Univ. Press v.
Albert, 906 F.3d 1290, 1299 (11th Cir. 2018) (stating that the mandate
rule is " 'nothing more than a specific application of the "law of the case"
doctrine' " (quoting Transamerica Leasing, Inc. v. Institute of London
Underwriters, 430 F.3d 1326, 1331 (11th Cir. 2005), quoting in turn
Piambino v. Bailey, 757 F.2d 1112, 1120 (11th Cir. 1985))). This Court
has held that the law-of-the-case doctrine prevents a party from
relitigating an issue that was addressed before the first appeal of a case
but was not raised in that appeal:
13
1190797
" 'Under the law of the case doctrine, "[a] party cannot on a
second appeal relitigate issues which were resolved by the
Court in the first appeal or which would have been resolved
had they been properly presented in the first appeal." ' Kortum
v. Johnson, 786 N.W.2d 702, 705 (N.D. 2010)(quoting State ex
rel. North Dakota Dep't of Labor v. Riemers, 779 N.W.2d 649
(N.D. 2010) (emphasis added)); see also Judy v. Martin, 381
S.C. 455, 458, 674 S.E.2d 151, 153 (2009) ('Under the
law-of-the-case doctrine, a party is precluded from relitigating,
after an appeal, matters that were either not raised on appeal,
but should have been, or raised on appeal, but expressly
rejected by the appellate court. C.J.S. Appeal & Error § 991
(2008)....').
"The doctrine is the same in Alabama. '[I]n a second
appeal, ... a matter that had occurred before the first appeal,
but that was not raised in the first appeal, [is] the law of the
case.' Life Ins. Co. of Georgia v. Smith, 719 So. 2d 797, 801
(Ala. 1998) (summarizing the holding in Sellers v. Dickert, 194
Ala. 661, 69 So. 604 (1915)). The doctrine in this form was
applied in Bankruptcy Authorities, Inc. v. State, 620 So. 2d
626 (Ala. 1993), which was the second of two appeals in that
case. There, this Court held that the failure of the appellant to
raise an issue in its first appeal regarding the sufficiency of the
evidence to support the judgment precluded review of that
issue in the second appeal.4
"____________________
"4Although the Court referred to the appellant's failure
to raise the issue as a 'waiver,' it is just as properly referred to
as a basis for the application of the law-of-the-case doctrine."
14
1190797
Scrushy v. Tucker, 70 So. 3d 289, 303-04 (Ala. 2011) ("Scrushy II")
(footnote 3 omitted).2
In Scrushy II, which was the second of two appeals from the same
underlying action, this Court specifically rejected an argument that the
law-of-the-case doctrine did not apply to an issue that had not been
specifically addressed by this Court in the first appeal in that case. In
Scrushy II, Scrushy sought to apply certain defenses to claims filed
against him, despite the facts that he had not raised those defenses
against other claims that the trial court had already ruled upon and that
this Court had affirmed those rulings on appeal. See Scrushy v. Tucker,
955 So. 2d 988 (Ala. 2006) ("Scrushy I"). Specifically, Scrushy asserted
that "the doctrine of the law of the case 'turns on whether the Court
addressed the issue between the parties' [in Scrushy I] and does not apply
because the defenses were not asserted in the first appeal." Scrushy II, 70
2Scrushy II involved a shareholder-derivative action brought by
HealthSouth shareholders against HealthSouth and others, including
Richard Scrushy. Scrushy II is a separate action from the present case,
although some of the same parties involved in Scrushy II are, or have
been, parties to the present case.
15
1190797
So. 3d at 303. Citing the authority quoted above, this Court rejected that
understanding of the law-of-the-case doctrine: "Scrushy's understanding
of the law-of-the-case doctrine is inaccurate: it is not essential to the
application of the doctrine that the issue be asserted in the first appeal.
It is enough that the issue should have been raised in the first appeal." Id.
Because the mandate rule is merely a "specific application" of the
law-of-the-case doctrine, the same reasoning applies to the mandate rule:
a ruling on an issue that could have been, but was not, raised on appeal
becomes the law of the case, and a trial court violates the law-of-the-case
doctrine and the mandate rule by purporting to relitigate that issue on
remand. Persuasive authority from various United States Courts of
Appeals supports this conclusion. For example, the United States Court
of Appeals for the Tenth Circuit succinctly stated the applicability of the
mandate rule to issues that were not, but could have been, raised on
appeal:
"A lower court is 'bound to carry the mandate of the
upper court into execution and [cannot] consider the questions
which the mandate laid at rest.' Sprague v. Ticonic Nat'l Bank,
307 U.S. 161, 168, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); accord
Ins. Grp. Comm. v. Denver & Rio Grande W. R.R. Co., 329 U.S.
16
1190797
607, 612, 67 S.Ct. 583, 91 L.Ed. 547 (1947) ('When matters are
decided by an appellate court, its rulings, unless reversed by
it or a superior court, bind the lower court.'); Bryan A. Garner
et al., The Law of Judicial Precedent § 55 at 459 (2016) (Law
of Judicial Precedent) ('When a case has been heard and
determined by an appellate court, the legal rules and
principles laid down as applicable to it bind the trial court in
all further proceedings in the same lawsuit. They cannot be
reviewed, ignored, or departed from.'). Failing to raise an issue
on appeal, or abandoning an issue that was initially raised,
has the same consequences for that litigation as an adverse
appellate ruling on that issue. Thus, the mandate rule applies
not only to issues on which the higher court has ruled but also
'forecloses litigation of issues decided by the district court but
[forgone] on appeal or otherwise waived.' Doe v. Chao, 511
F.3d 461, 466 (4th Cir. 2007) (internal quotation marks
omitted); see United States v. Husband, 312 F.3d 247, 250 (7th
Cir. 2002) ('[A]ny issue that could have been but was not
raised on appeal is waived and thus not remanded.'); id. at 251
('Parties cannot use the accident of remand as an opportunity
to reopen waived issues.' (brackets and internal quotation
marks omitted))."
Estate of Cummings v. Community Health Sys., Inc., 881 F.3d 793, 801
(10th Cir. 2018) (emphasis added).
In Estate of Cummings, the plaintiff alleged several claims against
several defendants, including Community Health Systems, Inc. ("CHSI").
A federal district court dismissed the claims against CHSI for lack of
personal jurisdiction and later disposed of the remaining claims in favor
17
1190797
of the remaining defendants. The plaintiff appealed and initially
challenged the district court's dismissal of CHSI for lack of personal
jurisdiction, but it later agreed to dismiss CHSI from the appeal. The
Tenth Circuit Court of Appeals entered an order dismissing CHSI from
that appeal, affirmed the "federal claims" against the other defendants,
vacated the district court's rulings on the supplemental claims against the
other defendants, and instructed the district court to remand the
supplemental claims to state court. On remand, however, the district
court vacated its earlier dismissal of CHSI for lack of personal jurisdiction
and remanded the claims against CHSI to state court. On appeal of that
order, citing the authority set forth above, the Tenth Circuit Court of
Appeals held that the district court had violated the mandate in the first
appeal; the court held that its mandate, which had not mentioned CHSI,
"barred any further action with respect to the claims against CHSI." 881
F.3d at 801.
In General Universal Systems, Inc. v. HAL, Inc., 500 F.3d 444 (5th
Cir. 2007), General Universal Systems ("GUS") sued HAL, Inc., and
certain individuals ("the HAL defendants"), raising several claims
18
1190797
involving alleged theft of proprietary software; GUS also sued several
companies to which HAL had licensed the software program ("the
Customer Defendants"). A federal district court disposed of all of GUS's
claims in favor of the HAL defendants and dismissed the claims against
the Customer Defendants. In GUS's initial appeal, see General Universal
Sys., Inc. v. Lee, 379 F.3d 131 (5th Cir. 2004), the United States Court of
Appeals for the Fifth Circuit reversed the dismissal of only one claim
against the HAL defendants and remanded "that claim to the district
court for further proceedings not inconsistent with this opinion." Lee, 379
F.3d at 159. On remand, the district court entered another judgment in
favor of the Customer Defendants, "finding that the claims against those
parties were not included in the scope of the remand from [the Fifth
Circuit Court of Appeals]." HAL, 500 F. 3d at 447. GUS appealed that
judgment, and the Fifth Circuit Court of Appeals held that its "prior
opinion and the circumstances it embraces disposed of any issues related
to the Customer Defendants through waiver." 500 F.3d at 453.
Specifically, the court held that, although its prior decision did not
"explicitly address the Customer Defendants nor any claim by GUS
19
1190797
brought against them, this is not surprising based on the absence of any
arguments against the Customer Defendants in GUS's brief in the original
appeal." Id. Thus, the court concluded, "our remand in the prior opinion
did not include any claims against the Customer Defendants." Id. at 454.
In Doe v. Chao, 511 F.3d 461 (4th Cir. 2007), the United States
Court of Appeals for the Fourth Circuit considered whether a federal
district court had violated the mandate rule on remand from a previous
appeal in the same case. The court stated:
"The mandate rule ... restricts the district court's
authority on remand from the court of appeals. First, 'any
issue conclusively decided by this court on the first appeal is
not remanded,' and second, 'any issue that could have been but
was not raised on appeal is waived and thus not remanded.'
United States v. Husband, 312 F.3d 247, 250-51 (7th Cir.
2002); see also S. Atl. Ltd. P'ship of Tenn.[ v. Riese], 356 F.3d
[576,] 584 [(4th Cir. 2004)] (stating that the mandate rule
prohibits district courts from 'reconsider[ing] issues the parties
failed to raise on appeal').
"The mandate rule serves two key interests, those of
hierarchy and finality. 'A rule requiring a trial court to follow
an appellate court's directives that establish the law of a
particular case is necessary to the operation of a hierarchical
judicial system.' Mirchandani v. United States, 836 F.2d 1223,
1225 (9th Cir.1988). ...
20
1190797
"This is not to say appellate courts are somehow superior
or always correct, but only that our system has been served
well by the availability of review and the need for appropriate
review to be final. The mandate rule in fact 'serves the interest
of finality' in litigation. See, e.g., United States v. Thrasher,
483 F.3d 977, 982 (9th Cir. 2007); United States v. O'Dell, 320
F.3d 674, 679 (6th Cir. 2003). 'Repetitive hearings, followed by
additional appeals, waste judicial resources and place
additional burdens on ... hardworking district and appellate
judges.' O'Dell, 320 F.3d at 679 (internal quotation marks
omitted). If no appeal of a judgment is taken, or if the
appellate court determines questions put before it, the orderly
resolution of the litigation requires the district court to
recognize those interests served by final judgments and to
implement the appellate mandate faithfully."
Chao, 511 F.3d at 465-66.
In that case, in a prior appeal, the Fourth Circuit Court of Appeals
had instructed the district court, on remand, "to determine the
reasonableness of [the plaintiff's] attorneys' fee award under the Privacy
Act." Id. at 466. However, on remand, the district court awarded the
plaintiff attorneys' fees for work performed on an unrelated contempt
motion that the plaintiff had filed earlier in the underlying litigation,
before the plaintiff's first appeal. The court held:
"[T]he mandate of this court did not permit the district court
to award [the plaintiff] attorneys' fees for work performed on
the contempt motion. In 2004, the district court rejected [the
21
1190797
plaintiff's] request for fees for his unsuccessful 'motion to hold
the Secretary in contempt,' Doe [v. Chao], 346 F. Supp. 2d
[840,] 850 [(W.D. Va. 2004)], and [the plaintiff] did not appeal
that ruling. At that point, the denial of fees for work performed
on the contempt motion became final. Because the mandate
rule 'forecloses litigation of issues decided by the district court
but [forgone] on appeal or otherwise waived,' the district court
was not free to deviate from this court's mandate by
reconsidering [the plaintiff's] claims for attorneys' fees that it
had denied before appeal and that had not been raised by [the
plaintiff] on cross-appeal. [United States v. ]Bell, 5 F.3d [64,]
66 [(4th Cir. 1993)]; see also, e.g., S. Atl. Ltd. P'ship of Tenn.[
v. Riese], 356 F.3d [576,] 584 [(4th Cir. 2004)]."
Chao, 511 F.3d at 466.
The same is true in the present case. Because Nichols failed to
challenge the February 2016 order on appeal, any challenge to that order
was waived and was not remanded to the trial court for reconsideration.
Based on authority from this Court and from various United States Courts
of Appeals, we conclude that the trial court violated the mandate of this
Court in Nichols, supra, when it amended the February 2016 order
dismissing the individual defendants with prejudice.3 Accordingly, we
3The two decisions cited by the trial court to support its conclusion
that the mandate rule did not apply to prevent amendment of the
February 2016 order -- Stewart v. ATEC Assocs., Inc., 652 So. 2d 270 (Ala.
Civ. App. 1994), and Gray v. Reynolds, 553 So. 2d 79 (Ala. 1989) -- are
22
1190797
conclude that HealthSouth has demonstrated a clear legal right to a writ
of mandamus directing the trial court to vacate its June 2020 order
amending the February 2016 order to dismiss the individual defendants
without prejudice.4
inapposite. Those cases stand for the straightforward proposition that
the mandate rule does not require a lower court on remand, or the
appellate court on second review of the case, "to carry out literally the
dicta pertaining to questions that were not then presented." Gray, 553 So.
2d at 81 (emphasis added). See Stewart, 652 So. 2d at 273 (holding that
the trial court was not bound by the mandate rule to apply the dicta from
an appellate decision to the case on remand). The trial court did not
identify any dicta in Nichols that it had authority to ignore so as to justify
its amendment of the February 2016 order on remand; dicta related to the
February 2016 order would have been difficult to identify in Nichols given
that the February 2016 order was not addressed by this Court.
4HealthSouth also argues that Rule 60(b) could not operate to
provide relief from the February 2016 order because, among other
reasons, the only possible Rule 60(b) ground for relief would be under Rule
60(b)(1), Ala. R. Civ. P., which allows for relief from a final judgment on
the ground of mistake, and the rule requires that a motion for relief from
a final judgment brought under Rule 60(b)(1) be filed "within a reasonable
time ...[but] not more than four (4) months after the judgment ... was ...
taken." Rule 60(b). See HealthSouth's petition at 17-20. As noted above,
the February 2016 order became final on May 26, 2016, see Dickerson and
Frontier Bank, supra; however, Nichols did not move to amend that order
until nearly four years after it was entered. Nichols agrees that Rule
60(b) does not provide a procedural basis for relief from the February 2016
order, although he contends that Rule 60(b) does not apply because the
February 2016 order became interlocutory again after this Court reversed
the May 2016 judgment dismissing the eighth amended complaint and
23
1190797
Conclusion
For the reasons stated herein, the petition for a writ of mandamus
is due to be granted. Accordingly, we grant the petition and direct the
trial court to vacate its June 2020 order amending the February 2016
order to dismiss the individual defendants without prejudice.
PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, and Wise, JJ., concur.
Sellers, Mendheim, and Stewart, JJ., dissent.
Mitchell, J., recuses himself.
remanded the cause for further proceedings. As discussed in detail above,
this is incorrect. An interlocutory order that later becomes a final
judgment remains a final judgment and the law of the case unless an
appellate court disturbs that judgment on appeal. There is no indication
that the trial court relied upon Rule 60(b) to grant relief from its February
2016 order, and we agree with both parties insofar as they contend that
Rule 60(b) did not provide the trial court a procedural basis for amending
the February 2016 order under the circumstances of this case.
24
1190797
MENDHEIM, Justice (dissenting).
I do not believe that the central argument presented by Encompass
Health Corporation, formerly known as HealthSouth Corporation
("HealthSouth"), warrants mandamus review, and so I respectfully
dissent. HealthSouth presents Judge Vance's correction of his
February 26, 2016, order -- an order that all parties as well as the main
opinion concede was erroneous -- as a straightforward violation of the
mandate rule. This Court unquestionably does review mandate-rule
violations by petition for the writ of mandamus because such violations
constitute deviations from direct orders of a superior court, something a
lower court lacks any discretion to do. But the situation presented here
does not fall into that category.
"An appellate court's decision is final as to the matters
before it, becomes the law of the case, and must be executed
according to the mandate. Ex parte Edwards, 727 So. 2d 792,
794 (Ala. 1998). Generally, a lower court 'exceeds its authority'
by addressing issues already decided by an appellate court's
decision in that case. Lynch v. State, 587 So. 2d 306, 308 (Ala.
1991)."
Honea v. Raymond James Fin. Servs., Inc., 279 So. 3d 568, 570-71 (Ala.
2018) (emphasis added).
25
1190797
As the author of Nichols v. HealthSouth Corp., 281 So. 3d 350 (Ala.
2019), I can state unequivocally that the issue presented by HealthSouth's
summary-judgment motion on remand -- whether Steven R. Nichols could
assert claims against HealthSouth after individual defendant Richard
Scrushy accidentally had been dismissed with prejudice by the
February 26, 2016, order -- was not presented, addressed, or decided in
that appeal. Instead, as the main opinion notes, Nichols had appealed a
May 26, 2016, judgment in which Judge Vance concluded that Nichols's
claims had to be dismissed for failing to follow the demand-pleading
requirements of Rule 23.1, Ala. R. Civ. P., that applied because, Judge
Vance determined, the claims were, under Delaware law, derivative
rather than direct in nature. This Court in Nichols reversed that
judgment, finding that Nichols's claims were, in fact, direct claims under
Delaware law and thus not subject to the strictures of Rule 23.1. The
Court also addressed the only other argument HealthSouth had raised in
its motion to dismiss that preceded the May 26, 2016, judgment -- that the
claims Nichols asserted in his eighth amended complaint did not relate
back to his original complaint and thus were barred by the applicable
26
1190797
statute of limitations -- and we concluded that the claims did, in fact,
relate back and, therefore, that the statute of limitations did not bar
Nichols's claims. Notably absent from our decision, and therefore absent
from our mandate in Nichols, was any discussion or decision concerning
the effect Scrushy's dismissal from the case had upon the viability of
Nichols's claims against HealthSouth. This absence was unremarkable
given that HealthSouth never presented such an argument to Judge
Vance until it filed a summary-judgment motion a full year after the case
had been remanded from this Court to the trial court following our
judgment in Nichols.
The actual reason the propriety of Judge Vance's correction of his
February 26, 2016, order is in question is not because of the mandate from
this Court in Nichols but, rather, because of the understanding in the law-
of-the-case doctrine that issues that could have been raised in a first
appeal but were not argued cannot be revisited after remand of the case
to the trial court. As the main opinion observes, this Court reiterated that
rule in Scrushy v. Tucker, 70 So. 3d 289, 304 (Ala. 2011): " '[I]n a second
appeal, ... a matter that had occurred before the first appeal, but that was
27
1190797
not raised in the first appeal, [is] the law of the case.' " (Quoting Life Ins.
Co. of Georgia v. Smith, 719 So. 2d 797, 801 (Ala. 1998).)
The main opinion states that "the 'mandate rule' is an application of
the law-of-the-case doctrine," ___ So. 3d at ___, and "courts often refer to
the mandate rule as a subset of the law-of-the-case doctrine." Washington
v. Bishop, Civil Action No. GLR-16-2374, Aug. 5, 2019 (D. Md. 2019) (not
selected for publication in Federal Supplement). However, even if the
concepts are related, HealthSouth has inappropriately conflated the two
concepts in order to obtain mandamus review.
"Application of the 'law of the case' principle is not absolute as
a court has the discretionary power not to adhere to a previous
legal conclusion it reached earlier in the same case. See, e.g.,
Eckell v. Borbidge, 114 B.R. 63, 68 n.5 (E.D. Pa. 1990). In
contrast, application of the 'mandate rule' is 'nondiscretionary.'
Coquillette, et al., 18 Moore's Federal Practice 3d, § 134.23[1],
at 134-58 (2000). A trial court has no authority upon remand
to deviate from the legal conclusions reached by an appellate
court."
In re Phoenix Petroleum Co., 278 B.R. 385, 396 n.9 (Bankr. E.D. Pa.
2001). This Court made the very same observation about the
discretionary nature of the law-of-the-case doctrine in Barnwell v. CLP
28
1190797
Corp., 264 So. 3d 841, 850 (Ala. 2018), in which it applied the rule as
expressed in Scrushy:
"Application of the law-of-the-case doctrine is discretionary
rather than mandatory, Ex parte Discount Foods, Inc., 789
So. 2d 842, 846 n.4 (Ala. 2001), and there are exceptions to the
doctrine. For example, '[i]f ... an observation by the appellate
court concerning an issue is premised on a particular set of
facts, and the nature of the remand is such that it is
permissible and appropriate to consider additional facts
relevant to the issue, the law-of-the-case doctrine is
inapplicable.' Lyons v. Walker Reg'l Med. Ctr., 868 So. 2d
1071, 1077 (Ala. 2003). Further, 'the law-of-the-case doctrine
may be disregarded if the court is convinced its prior decision
was clearly erroneous or there has been an intervening change
in the law.' Belcher v. Queen, 39 So. 3d 1023, 1038 (Ala.
2009)."
(Emphasis added.) See also 18B Charles Alan Wright, Arthur R. Miller,
and Edward H. Cooper, Federal Practice & Procedure § 4478.6 (2019)
("Focus on the mandate rule is desirable only if its requirements are met --
if the appellate court in fact did not consider and resolve an issue not
presented on the first appeal, the trial court acting on remand should not
be bound as tightly as if the issue had in fact been resolved. The trial
court should take account of the needs of orderly progression through the
trial and appeals processes in deciding whether to reconsider its own
29
1190797
pre-appeal ruling, but so long as further proceedings are otherwise
appropriate on remand there is no point in pretending that the trial court
owes fealty to a nonexistent appellate ruling.").
This distinction concerning discretion between the mandate rule and
the law-of-the-case doctrine matters in this instance because HealthSouth
seeks mandamus review under the guise of the mandate rule, positing
that Judge Vance had no discretion to correct his February 26, 2016, order
that dismissed Scrushy with prejudice because doing so would violate our
mandate in Nichols. But because the mandate rule is not implicated here,
the impetus for mandamus review evaporates due to the discretion
permitted in applying the law-of-the-case doctrine.5 Cf. Ex parte Lang,
500 So. 2d 3, 5 (Ala. 1986) ("In the absence of abuse, the exercise of a
discretion vested in the trial court obviates the use of the remedy of
5Even the law-of-the-case doctrine is not the most precise concept to
describe what is at issue here: "In most cases, the decision not to press an
argument is the result of 'an unreflected failure to think about the
procedural need to make a choice (forfeiture),' rather than 'a conscious
choice to abandon a position (waiver).' " Howe v. City of Akron, 801 F.3d
718, 743 (6th Cir. 2015) (quoting Wright et al., § 4478.6). Regardless,
"[s]uitably persuasive reasons justify relief from either forfeiture or
waiver." Wright et al., § 4478.6.
30
1190797
mandamus."). Indeed, I have been unable to find a single instance in
which this Court has afforded mandamus review for an alleged violation
of the law-of-the-case doctrine as opposed to the several instances in
which mandamus review has been invoked to apply the mandate rule, and
HealthSouth fails to cite any such case in its briefs to this Court.
Accordingly, because the mandate rule is not implicated in this case, and
because that is the basis upon which the main opinion purports to allow
mandamus review, I believe the petition is due to be denied.6
6HealthSouth also seeks mandamus review on the basis that
Rule 60(b), Ala. R. Civ. P., does not permit correction of Judge Vance's
February 26, 2016, order, but, as the main opinion observes, "[t]here is no
indication that the trial court relied upon Rule 60(b) to grant relief from
its February 2016 order." ___ So. 3d at ___ n.4. In any event, I find
HealthSouth's arguments asserting the inapplicability of Rule 60(b) to be
wholly inadequate to warrant relief on that basis, and apparently a
majority of the Court agrees given that the discussion of Rule 60(b) is
relegated to a single footnote at the end of the main opinion. See id.
31 | March 12, 2021 |
c33b4370-32fd-4610-8a8b-923da1d5b10d | Ex parte Meg Jamison. | N/A | 1190984 | Alabama | Alabama Supreme Court | Rel: April 9, 2021
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, 2020-2021
____________________
1190984
____________________
Ex parte Meg M. Jamison, individually and as next friend of
John W. Jamison III
PETITION FOR WRIT OF MANDAMUS
(In re: The Estate of John W. Jamison III, an alleged
incapacitated person)
(Jefferson Probate Court, 18-BHM-02421)
BOLIN, Justice.
Meg M. Jamison ("Meg"), individually and as next friend of her
husband, John W. Jamison III ("John"), seeks a writ of mandamus
1190984
directing the Jefferson Probate Court ("the probate court") to set aside its
May 20, 2020, order automatically renewing temporary letters of
guardianship and conservatorship regarding John.
Facts and Procedural History
In July 2018, Wilson Jamison ("Wilson") petitioned the probate court
to have Meg, his mother, involuntarily committed. In support of his
petition, filed pursuant to § 22-52-1 et seq., Ala. Code 1975, Wilson
alleged that Meg had verbally and physically abused John and him. He
also alleged that Meg had attempted to kill him, John, and herself. In
September 2018, the probate court issued an "appearance order," stating:
"A sworn petition having been filed pursuant to § 22-52-1
et seq., Code of Alabama 1975, and the laws of the State of
Alabama, alleging that the petitioner therein has reason to
believe that the respondent is mentally ill and poses a real and
present threat of substantial harm to self and/or others, and
praying for respondent’s commitment to the State Department
of Mental Health, and the Court, having reviewed said
petition, ... is of the opinion that the said respondent should be
brought before this Court ... to determine what, if any,
limitations or restrictions should be placed upon the said
respondent pending examination and evaluation by a
psychiatrist and/or other qualified persons concerning same."
However, after a hearing, the probate court dismissed Wilson's petition.
2
1190984
During this same period, the Jefferson County Department of
Human Resources ("DHR") became involved with John after receiving
reports in June 2018 and September 2018. The reports alleged that John
suffered from dementia and was being physically, verbally, and
emotionally abused by Meg. The reports also indicated that Meg was
abusing her prescription medications and alcohol and had untreated
mental-health issues. The reports further indicated that, because Meg
was involved in an involuntary-commitment proceeding, no one would be
at home to care for John.
After investigating the reports, DHR, on September 28, 2018, filed,
pursuant to the Adult Protective Services Act ("the APSA"), § 38-9-1 et
seq., Ala. Code 1975, a petition ("the adult-protective-services petition")
in the Jefferson Circuit Court ("the circuit court"), alleging that John was
an "adult in need of protective services."1 See § 38-9-2(4), Ala. Code 1975
1Section 38-9-2(2), Ala. Code 1975, defines an "adult in need of
protective services" as:
"A person 18 years of age or older whose behavior indicates
that he or she is mentally incapable of adequately caring for
himself or herself and his or her interests without serious
3
1190984
(defining "court," as used in the APSA, as "[t]he circuit court"). On
October 1, 2018, the circuit court entered an emergency order requiring
that John have a complete physical and mental evaluation at Grandview
Hospital. The circuit court also set a hearing for October 11, 2018. Meg
filed a motion to intervene, which the circuit court granted. Following the
hearing, the circuit court entered an order finding that John was in need
of continuing care and supervision and should remain at Grandview
Hospital. The circuit court set a final hearing for November 9, 2018.
On October 12, 2018, DHR filed, pursuant to the Alabama Uniform
Guardianship and Protective Proceedings Act ("the AUGPPA"), § 26-2A-1
et seq., Ala. Code 1975, petitions seeking temporary and permanent
letters of guardianship and conservatorship regarding John ("the
guardianship/conservatorship petitions") in the probate court. See § 26-
consequences to himself or herself or others, or who, because
of physical or mental impairment, is unable to protect himself
or herself from abuse, neglect, exploitation, sexual abuse, or
emotional abuse by others, and who has no guardian, relative,
or other appropriate person able, willing, and available to
assume the kind and degree of protection and supervision
required under the circumstances."
4
1190984
2A-20(3), Ala. Code 1975 (defining "court," as used in the AUGPPA, as "[a]
probate court of this State"). The guardianship/conservatorship petitions
alleged, in pertinent part, as follows:
"(2) John Jamison is an incapacitated person in that he
is has a diagnosis of dementia. Mr. Jamison is alleged to be
receiving improper care in the home, and is prone to
wandering, driving while intoxicated and having memory
issues. There are additional concerns that he could be
subjected to physical, verbal and emotional abuse in the home.
...
"(3) John Jamison is a person in need of protection,
whose diagnosis and behaviors render him unable to manage
his property and business affairs, whose property will be
wasted or dissipated unless proper management is provided,
and for whom funds are continually needed for healthcare,
support and maintenance, and for whom protection is
necessary and desirable to obtain or to provide such funds.
"(4) John Jamison is a person in need of a guardian of his
person in that he is unable to provide for his basic needs of
shelter, food, clothing, and healthcare. His behaviors and
diagnosis indicate that he is mentally and/or physically
incapable of adequately caring for himself and his interests
without serious consequences to himself or others; and due to
his physical and/or mental impairments, he is unable to
protect himself from abuse, neglect or exploitation by others.
"(5) DHR became involved with John Jamison after
receiving reports from the community that Mr. Jamison
suffers from dementia and ... is being physically, verbally and
emotionally abused by his wife. In addition, it was reported
5
1190984
that Mr. Jamison’s wife/caregiver abuses her prescription
medication and has untreated mental health diagnoses.
Concerns were noted as it relates to Mr. Jamison's well-being
and safety in the home with his wife.
"(6) Mr. Jamison’s wife had a mental health commitment
petition filed concerning her welfare as to the above reports
concerning her own behaviors; however the petition was
dismissed by the Probate Court of Jefferson County. Mrs.
Jamison is back at the couple’s home. Due to the history of
domestic disturbances in the home, DHR and Mountain Brook
Police Department are very concerned for Mr. Jamison’s health
and well-being."
While the guardianship/conservatorship action was pending in the
probate court, the circuit court apparently continued the final hearing set
for November 9, 2018, in the adult-protective-services action. However,
on November 28, 2018, DHR filed an emergency motion requesting that
the circuit court require Meg to sign papers admitting John to an assisted-
living facility because John had attempted to leave Grandview Hospital.
Rather than asking that John be placed in the geriatric psychiatric unit
at Grandview Hospital, DHR asked that John be placed in the "memory
unit" of the assisted-living facility. Meg objected and requested that 24-
hour care be provided to John at their home. On December 19, 2018, the
parties agreed that John should be transferred to the assisted-living
6
1190984
facility, and the circuit court reset the adult-protective-services action for
a final hearing on January 10, 2019.
Also on December 19, 2018, the probate court entered an order
appointing attorney Gregory Hawley as John's temporary guardian and
conservator with the powers set out in § 26-2A-78 and § 26-2A-152, Ala.
Code 1975. The probate court revoked all powers of attorney previously
executed by John. The probate court's order provided that Hawley should
file an inventory of John's assets within 90 days and that the "temporary
letters of guardianship and conservatorship are automatically renewed
every thirty (30) days without action by this court." The probate court
also set the guardianship/conservatorship action for a final hearing on
March 20, 2019.
On February 3, 2019, DHR filed, with the consent of the other
parties, a motion to dismiss the adult-protective-services action because
the probate court had appointed a temporary guardian and conservator
for John. On February 5, 2019, the circuit court entered an order
dismissing the adult-protective-services action. On February 6, 2019, the
probate court entered an order authorizing Hawley, as John's temporary
7
1190984
conservator, to pursue an action on behalf of John and against a trust to
obtain sufficient income to pay for John's care and living expenses.
On March 13, 2019, Meg filed a motion to remove the
guardianship/conservatorship action to the circuit court, pursuant to § 26-
2-2 and § 26-2-3, Ala. Code 1975. DHR filed an objection to Meg's
motion to remove the action to the circuit court. Hawley moved to
intervene regarding the motion to remove, which the circuit court granted.
Hawley then filed a motion to stay the removal, which the circuit court
also granted.2
On March 26, 2019, Hawley filed with the probate court an
inventory of John's assets indicating that John had no assets.3 On April
2Section 26-2-2 provides for the removal of the "administration or
conduct of any guardianship or conservatorship" of an incapacitated
person. (Emphasis added.) "The filing of a petition that raises the
possibility of the necessity for the appointment of a guardian or
conservator, however, is not the equivalent of creating a guardianship or
conservatorship that must be 'administ[ered] or conduct[ed].' " Ex parte
Casey, 88 So. 3d 822, 829 n.7 (Ala. 2012). On March 30, 2020, the circuit
court entered an order dismissing Meg's motion to remove "without
prejudice until such time as the jurisdictional issues currently pending in
probate court of Jefferson County are resolved."
3Apparently, the final hearing scheduled for March 20, 2019, had
been rescheduled.
8
1190984
23, 2019, the probate court held a hearing on the petition for permanent
letters of guardianship and conservatorship for John. However, the
hearing had to be continued because of the number of witnesses expected
to testify, and it was rescheduled for July 15, 2019. The probate court
therefore entered an order stating that the temporary letters of
guardianship and conservatorship "are automatically renewed every 14
days without action by this court." In that order, the probate court also
directed Meg to provide the court with an accounting covering John's and
Meg's assets for the preceding five years.
An issue arose regarding payment for John's care in the assisted-
living facility, and on May 16, 2019, Hawley filed a motion for
instructions, asking the probate court how to proceed because the
assisted-living facility had issued a 30-day notice of John's discharge for
lack of payment. On May 17, 2019, Meg filed the requested accounting.
On July 11, 2019, Hawley filed a motion to require Meg to supplement
and/or amend her accounting before the final hearing.
On July 15, 2019, DHR filed a motion to disqualify Meg's attorneys
because, it alleged, the attorneys had represented John in the past and
9
1190984
had intimate knowledge of his business affairs. DHR argued that the
attorneys were using privileged information against John to avoid
payment for John's care. Based on the motion, it is unclear whether
Meg's attorneys were continuing to represent John in any capacity at the
time the motion was filed. That same day, the probate court entered an
order requiring Meg's attorneys to ask the Alabama State Bar whether
their representation of Meg created a conflict of interest. The probate
court continued the case and set it for a final hearing on November 19
through 21, 2019. Meg subsequently petitioned this Court for a writ of
mandamus, challenging several of the probate court's rulings in the
guardianship/conservatorship actions, and this Court denied that petition,
by order, on August 14, 2019. Ex parte Jamison (No. 1180709).
On October 9, 2019, the State Bar answered the question regarding
whether there was a conflict precluding the attorneys from representing
Meg in the guardianship/conservatorship action. The State Bar, while
acknowledging that the relevant facts were unclear regarding whether
the attorneys were currently representing John in any way, opined that
if any confidential information that was generally not known to the public
10
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had been obtained by the attorneys during their representation of John
and could be used to John's disadvantage during their representation of
Meg, then a conflict of interest existed.4 On October 26, 2019, DHR filed
a renewed motion to disqualify the attorneys from representing Meg in
the guardianship/conservatorship action.
Following a hearing, the probate court entered an order on
November 12, 2019, disqualifying the attorneys from representing Meg
based on the following reasoning: (1) John was a person in need of
protection, (2) John might need protection from Meg, (3) Meg's and John's
interests were not aligned and could be in conflict, (4) the attorneys were
disqualified from representing either Meg or John under Rule 1.7, Ala. R.
Prof. Cond., and (5) the attorneys were disqualified from representing
either Meg or John under Rule 1.9, Ala. R. Prof. Cond.
On November 19, 2019, the probate court held a hearing on the
guardianship/conservatorship petitions. Neither Meg nor any counsel
representing Meg appeared at the hearing. On January 23, 2020, the
4The State Bar acknowledged that the opinion was nonbinding and
applied to future conduct only.
11
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probate court entered a judgment purporting to grant permanent letters
of guardianship and conservatorship for John. On February 7, 2020, Meg
filed a motion to alter, amend, or vacate that judgment. In the motion,
Meg argued, among other things, that the probate court had lacked the
authority to enter that judgment because, she asserted, DHR had failed
to notify John of the November 19, 2019, hearing in accordance with § 26-
2A-103, Ala. Code 1975. The probate court set the motion for a hearing
on April 28, 2020. On February 14, 2020, Meg filed a corrected motion to
alter, amend, or vacate, requesting a stay of any prior orders, including
the probate court's initial emergency order ruling that John was in need
of protection. That same day, Meg filed a motion to remove Hawley as
John's guardian and conservator, to appoint Meg as John's permanent
guardian, and to enter a "summary judgment" in favor of Meg on all
issues. On March 3, 2020, DHR filed a response to Meg's motions,
acknowledging that John had not been served with notice of the November
19, 2019, hearing and that the probate court should vacate its January 23,
2020, judgment and order a new trial. DHR also objected to staying the
probate court's emergency order ruling that John was in need of
12
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protection. Additionally, on March 3, 2020, DHR filed a motion to amend
the guardianship/conservatorship petitions to "more accurately reflect the
circumstances leading to the need for appointment of a permanent
guardian and conservator," including John's more recent diagnoses that,
it asserted, render him unable to provide for his basic needs or to manage
his property. On March 18, 2020, DHR filed an emergency motion to
continue the temporary guardianship and conservatorship of John "until
the next scheduled court date of April 28, 2020 with or without automatic
renewal every thirty days until a final resolution of the permanent
petition can be had." On April 3, 2020, the probate court entered an
order continuing Hawley's appointment as John's temporary guardian and
conservator for 30 days, with the appointment and letters of temporary
guardianship and conservatorship automatically renewing every 30 days
thereafter without further action by the parties until a final judgment
could be entered.5 Notwithstanding the automatic-renewal provision of
the April 3, 2020, order, on May 1, 2020, DHR filed another motion to
5The hearing set for April 28, 2020, did not take place. It is unclear
from the materials before us why that hearing was not held.
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continue the temporary guardianship and conservatorship of John
because, it noted, "the current temporary letters are set to expire on May
3, 2020." That same day, DHR filed a motion seeking to revoke "all
alleged authority that any party may assert to remove [John] from his
current placement." On May 4, 2020, the probate court entered an order
preventing any party from removing John from the assisted-living facility.
Following a hearing on May 13, 2020, the probate court entered an
order on May 20, 2020, revoking its January 23, 2020, judgment granting
permanent guardianship and conservatorship of John because John had
not been given notice of the November 19, 2019, hearing. Specifically,
the probate court stated that Meg's "motion and corrected motion to alter,
amend or vacate/motion to stay pending hearing on motions is granted by
agreement of all parties but limited only in that the permanent petition
will be reset for hearing, due to service not being perfected on the ward in
the 11/[19]/19 hearing." The probate court renewed its order granting
temporary letters of guardianship and conservatorship of John. The
probate court again ordered that the temporary letters would
automatically renew every 30 days without further order from the probate
14
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court until a permanent order is entered. The probate court set a final
hearing on the permanent guardianship/conservatorship petitions to begin
on August 18, 2020.6 On July 31, 2020, Hawley consented to placing
John in hospice care at the assisted-living facility. On August 26, 2020,
DHR filed a motion to extend Hawley's temporary letters of guardianship
and conservatorship. On August 31, 2020, Meg filed this petition for a
writ of mandamus.7
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),
6The final hearing set for August 18, 2020, was postponed in
compliance with administrative orders issued by this Court in response to
the COVID-19 pandemic.
7The probate court's May 20, 2020, order renewed automatically
every 30 days, thus making Meg's mandamus petition challenging that
order timely pursuant to 42-day filing requirement of Rule 21, Ala. R.
App. P.
15
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quoting in turn Ex parte United Serv. Stations, Inc., 628 So.
2d 501, 503 (Ala. 1993))."
Ex parte Jim Walter Res., Inc., 91 So. 3d 50, 52-53 (Ala. 2012). The
question of subject-matter jurisdiction is reviewable by a petition for a
writ of mandamus. Ex parte Flint Constr. Co., 775 So. 2d 805 (Ala. 2000).
"Mandamus will lie to direct a trial court to vacate a void judgment or
order. Ex parte Chamblee, 899 So. 2d 244, 249 (Ala. 2004)." Ex parte
Sealy, L.L.C., 904 So. 2d 1230, 1232 (Ala. 2004).
Discussion
I.
Meg argues that the probate court lacked jurisdiction over the
guardianship/conservatorship action while the adult-protective services
action was pending in the circuit court. Specifically, Meg argues that,
after DHR filed the adult-protective-services petition in the circuit court
pursuant to § 38-9-6, DHR could not seek temporary letters of
guardianship in the probate court under § 26-2A-107, Ala. Code 1975. We
disagree. The APSA and the AUGPPA are not mutually exclusive and,
thus, the filing of the adult-protective-services petition in the circuit court
16
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did not prohibit the subsequent filing of the guardianship/conservatorship
petitions in the probate court. Although the APSA and the AUGPPA
serve somewhat different purposes, they coexist. Indeed, the APSA
acknowledges the applicability of the AUGPPA when the appointment of
a guardian and conservator for an adult in need of protective services
might be necessary.
The APSA was written with DHR in mind. Specifically, DHR
arranges services and provides case-management services for adults in
need of protective services. Section 39-9-8, Ala. Code 1975, provides that
DHR shall investigate reports of alleged physical abuse, neglect,
exploitation, sexual abuse, and emotional abuse of elderly or disabled
adults. DHR may petition for the provision of emergency protective
services and protective placement of adults who, because of their physical
or mental disabilities, are unable to provide for their own basic needs and
whose health or safety are in immediate danger. § 38-9-5, Ala. Code 1975.
A determination that an adult is in need of protective services does not
necessarily require a finding of incapacity; rather, § 38-9-2(2) provides
that an adult in need of protective services is someone
17
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"whose behavior indicates that he or she is mentally incapable
of adequately caring for himself or herself and his or her
interests without serious consequences to himself or herself or
others, or who, because of physical or mental impairment, is
unable to protect himself or herself from abuse, neglect,
exploitation, sexual abuse, or emotional abuse by others, and
who has no guardian, relative, or other appropriate person
able, willing, and available to assume the kind and degree of
protection and supervision required under the circumstances."
(Emphasis added.)
Under § 38-9-6(g), a guardian or conservator may be appointed for
a person in need of protective services, but is not required. Specifically,
§ 38-9-6(g) provides:
"If it is agreeable with the person to be served, the court may
appoint a guardian, or conservator, or both, having the same
powers, duties, and obligations, including having a bond, as a
guardian of an incapacitated person or a conservator under the
Alabama Uniform Guardianship and Protective Proceedings
Act and it shall not be necessary to have a hearing on that
issue; otherwise, the court may appoint a guardian, a
conservator, or both, following the procedures provided by the
Alabama Uniform Guardianship and Protective Proceedings
Act."
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Clearly, the AUGPPA may aid and augment the services and protections
provided an adult in need of protective services under the APSA.8
8Section 26-2A-31, Ala. Code 1975, a part of the AUGPPA, provides,
in part:
"(a) To the full extent permitted by the constitution and
as permitted under Article 2 of Chapter 2B of this title [i.e.,
Article 2 of the Alabama Uniform Adult Guardianship and
Protective Proceedings Jurisdiction Act, § 26-2B-101 et seq.,
Ala. Code 1975], the court has jurisdiction over all subject
matter relating to estates of protected persons and protection
of minors and incapacitated persons.
"(b) The court has full power to make order, judgments,
and decrees and take all other action necessary and proper to
administer justice in the matters that come before it.
"(c) The court has jurisdiction over protective proceedings
and guardianship proceedings."
The Comment to § 26-2A-31 provides, in part:
"This section shall not be construed to alter or affect the
jurisdiction of the circuit court under the Adult Protective
Services Act, Ala. Code (1975) Sections 38-9-1 through 38-9-11,
which continues in effect and will apply for petitions
pertaining to adults in need of protective services. See
Comment to Section 26-2A-102[, Ala. Code 1975,] as to the
jurisdiction of circuit courts under the Adult Protective
Services Act of 1976. Ala. Code Sections 38-9-1 through
38-9-11 (1975, as amended by Acts 1977, No. 780)."
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The AUGPPA applies to incapacitated persons. See § 26-2A-20(8),
We also note that the Comment to § 26-2A-102, Ala. Code 1975,
provides, in part:
"This chapter [i.e, the AUGPPA] does not expressly
repeal, nor is it intended to repeal by implication, the Adult
Protective Services Act of 1976, Ala. Code Sections 38-9-1
through 38-9-11 (1975, as amended by Acts 1977, No. 780). The
Adult Protective Services Act is principally an act to provide
protective services (i.e., 'services whose objective is to protect
an incapacitated person from himself and from others') and
placement to prevent abuse, neglect, and exploitation of
adults. The act authorizes the department of human
[resources], in an emergency, and any 'interested person'
(which presumably includes the department of human
[resources]), to petition the circuit court for protective services
or placement, when the adult is unable or unwilling to consent
to services or placement. The Adult Protective Services Act
provides [Ala. Code Section 38-9-6(g) (1975, as amended by
Acts 1977, No. 780)] that the circuit court 'may' appoint a
'guardian,' but 'the department [of human resources] shall not
be appointed as guardian.' In appointing the 'guardian,' the act
refers to this chapter for the powers of the guardian and
procedures in the appointment. Both that act and this chapter
are consistent in that both acts provide for the use of a
six-person jury to determine some facts and both acts permit
the use of a court representative to evaluate the needs of the
allegedly incapacitated person. In addition, both acts adopt the
policy of placing the 'least possible restriction on personal
liberty and exercise of constitutional rights consistent with due
process and protection....' of the protected person. See
particularly, Ala. Code Section 38-9-3 (1975, as amended by
Acts 1977, No. 780) and, for example, Section 26-2A-105[, Ala.
Code 1975,] of this chapter."
20
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Ala. Code 1975. The appointment of a guardian is required for a person
found to be an incapacitated person. See § 26-2A-102 and § 26-2A-105,
Ala. Code 1975. Section 26-2A-130, Ala. Code 1975, sets out "a broad
category of persons who, for a variety of reasons, may be unable to
manage their own property" or may need a conservatorship or require a
protective order. Comment to § 26-2A-130.
Meg cites § 26-2A-131(1), Ala. Code 1975, a part of the AUGPPA,
for the proposition that, while the adult-protective-services petition filed
by DHR was pending in the circuit court, the probate court lacked
jurisdiction to rule in the guardianship/conservatorship action. Meg
misreads that section of the AUGPPA. Section 26-2A-131 provides:
"Subject to Section 26-2A-31, [Ala. Code 1975,] after the
service of notice in a proceeding seeking the appointment of a
conservator or other protective order and until termination of
the proceeding, the court in which the petition is filed has:
"(1) Exclusive jurisdiction to determine the
need for a conservator or other protective order
until the proceedings are terminated; and
"(2) Exclusive jurisdiction to determine how
the estate of the protected person which is subject
to the laws of this state must be managed,
expended, or distributed to or for the use of the
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protected
person,
the
protected
person's
dependents, or other claimants."
The "other protective order" referred to in § 26-2A-131 (a provision
coming under Article 2, Division 3 of the AUGPPA, regarding "Protection
of Property of Persons Under Disability and Minors," a division that
concerns protective proceedings, not protective services) is not referring
to protective orders that could be issued by a circuit court relating to
protective orders that could be issued by a circuit court relating to an
adult in need of protective services, but, rather, is referring to protective
orders that could be issued by a probate court relating to the property of
a "protected person," as that term is defined in § 26-2A-20(19). See §
26-2A-137(b), Ala. Code 1975 (providing that, under the AUGPPA, the
probate court, "without appointing a conservator, may authorize, direct,
or ratify any contract, trust, or other transaction relating to the protected
person's property and business affairs ... if the court determines that the
transaction is in the best interest of the protected person"). The Comment
to § 26-2A-131 further explains that prior Alabama law essentially
granted "jurisdiction over conservatorship proceedings to the court from
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which the appointment derive[d]." Section 26-2A-131 more clearly defines
the extent of the jurisdiction of a court in which a conservatorship petition
has been filed. "While the bulk of all judicial proceedings involving the
conservator will be in the court supervising the conservatorship, third
parties may bring suit against the conservator or the protected person on
some matters in other courts. Claims against the conservator after
appointment are dealt with by Section 26-2A-156[, Ala. Code 1975]."
Comment to § 26-2A-131.
In the present case, DHR received reports that John was being
abused. After investigating the allegations, DHR filed the adult-
protective-services petition. DHR did not seek the appointment of a
guardian or conservator under § 38-9-6(g). Instead, DHR sought the
appointment of a guardian and conservator in the probate court, which it
had the option to do, and once the probate court appointed a temporary
guardian and conservator, the adult-protective-services action was no
longer necessary.
II.
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Next, Meg argues that the probate court erred in issuing temporary
letters of guardianship and conservatorship that automatically renewed
every 30 days, which, she asserts, gives the temporary guardian and
conservator potentially never-ending continuing authority to act as John's
guardian and conservator.
It is necessary to note that, although § 26-2A-107, Ala. Code 1975,
expressly provides for a temporary guardianship for an incapacitated
person, there is no corollary provision in the AUGPPA expressly providing
for a temporary conservatorship for a person in need of a protective order.
Instead, § 26-2A-130(a) provides that "the court may appoint a
conservator or make any other protective order for cause as provided in
this section," and § 26-2A-30(c) provides that such an appointment or
protective order "may be made in relation to the estate and affairs of" a
protected person who "is unable to manage his property and business
affairs." Section 26-2A-136(b), Ala. Code 1975, provides, in pertinent
part:
"(b) The court has the following powers that may be
exercised directly or through a conservator in respect to the
estate and business affairs of a protected person:
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"(1) While a petition for appointment of a
conservator or other protective order is pending
and after preliminary hearing and without notice,
the court may preserve and apply the property of
the person to be protected as may be required for
the support of the person or dependents of the
person.
"....
"(3) After hearing and upon determining that
a basis for an appointment or other protective
order exists with respect to a person for reasons
other than minority, the court, for the benefit of the
person and members of the person's immediate
family, has all the powers over the estate and
business affairs which the person could exercise if
present and not under disability, except the power
to make a will. Subject to subsection (c), those
powers include, but are not limited to, power to
make gifts; to convey or release contingent and
expectant interests in property, including marital
property rights and any right of survivorship
incident to joint tenancy or tenancy by the entirety;
to exercise or release powers held by the protected
person
as
trustee,
personal
representative,
custodian for minors, conservator, or donee of a
power of appointment; to enter into contracts; to
create revocable or irrevocable trusts of property of
the estate which may extend beyond the disability
or life of the protected person; to exercise options of
the protected person to purchase securities or other
property; to exercise rights to elect options and
change beneficiaries under insurance and annuity
policies and to surrender the policies for their cash
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value; to exercise any right to an elective share in
the state of the person's deceased spouse and to
renounce or disclaim any interest by testate or
intestate succession or by inter vivos transfer."
(Emphasis added.) Additionally, § 26-2A-137 provides that if it is
established in a proper proceeding that a basis exists for the appointment
of a conservator, the probate court, without appointing a conservator, may
authorize protective arrangements for the needs of the protected person.
Section 26-2A-137(c) provides that, before approving such protective
arrangements, the probate court should consider the interests of creditors
and dependents of the protected person, along with whether the protected
person needs the continuing protection of a conservator. Section 26-2A-
137(c) goes on to provide that the probate court "may appoint a special
conservator to assist in the accomplishment of any protective arrangement
or other transaction authorized under this section...." (Emphasis added.)
A special conservator, like all duly appointed conservators, serves a role
akin to a trustee. See Comment to § 26-2A-2, Ala. Code 1975, (explaining
the difference between a guardian and a conservator under the AUGPPA
and noting "the feature in [the AUGPPA] of distinguishing between a
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'guardian,' who is 'of the person' and like a parent in role, and a
'conservator,' who is 'of the property' and like a trustee in role").
Although the AUGPPA does not expressly authorize a "temporary
conservatorship," the above-cited provisions of the AUGPPA do expressly
allow for temporary orders to protect the property and business interests
of a protected person and allow for the appointment of a "special" or
temporary conservator.9 However, it is not the intent of the legislature
9The Comment to § 26-2A-1, Ala. Code 1975, provides, in pertinent
part:
"This chapter [i.e., the AUGPPA] embodies separate
systems of guardianship to protect persons of minors and
persons otherwise incapacitated. An 'incapacitated person' is
defined in this chapter to include not only persons who are non
compos mentis and who have been covered by guardianship
statutes historically, but in a broader sense it also includes
persons 'who lack sufficient understanding or capacity to make
or communicate responsible decisions concerning his person.'
The broader definition permits legal protection, commensurate
with the person's capacity, without the stigma sometimes
attached to a judicial decision of non compos mentis. ...
"This chapter also offers a system of protective
proceedings principally based on conservatorships to provide
for the management of substantial aggregations of property of
persons who are, for one reason or another including minority
and incapacity, unable to manage their property. In short, this
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to allow a temporary conservatorship, or actions taken to temporarily
protect the assets of a protected person, to essentially ripen into a
permanent conservatorship without further timely action and oversight
of the probate court.
Section 26-2A-107, allowing for the appointment of a temporary
guardian, limits the appointment to 30 days. Section 26-2A-107(a)
provides:
"(a) If an incapacitated person has no guardian, an
emergency exists, and no other person appears to have
authority to act in the circumstances, on appropriate petition
the court, without notice, may appoint a temporary guardian
whose authority may not extend beyond 30 days and who may
exercise those powers granted in the order."
The Comment to § 26-2A-107 provides, in part:
"Subsection (a) requires an 'emergency' situation for its
application. Various suggestions were discussed of permissible
periods for appointment of 'temporary guardians' in
'emergencies.' Ultimately the [AUGPPA] provides a period of
chapter recognizes two fiduciary capacities -- i.e., a 'guardian'
who is 'of the person' and analogous to the role of the parent,
and a 'conservator' who is 'of the property' and more closely
analogous to the role of a trustee."
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15 days.[10] Of course, it is recognized in providing for a short
period of appointment that a court can renew the appointment
for an additional period or additional periods according to the
exigencies of the emergency."
(Emphasis added.)
As noted in that Comment, a time limit for the appointment of a
temporary guardian is important because a temporary guardian may be
appointed only in an emergency situation. That Comment also recognizes
that a court can renew the appointment for an additional period or
additional periods "according to the exigencies of the emergency."
(Emphasis added.)
It is well settled that,
" '[w]hen 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))."
10Section 26-2A-107(a) was amended in 2015 to provide for 30 days,
rather than 15.
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Mid-Century Ins. Co. v. Watts, [Ms. 1180852, Sept. 18, 2020] ___ So. 3d
___, ___ (Ala. 2020).
Although this Court has not specifically addressed the issue whether
an automatically renewing temporary guardianship violates § 26-2A-
107(a), we do have guidance on this issue from a recent case. In Ex parte
Bashinsky, [Ms. 1190193, July 2, 2020] ___ So. 3d ___ (Ala. 2020), Joann
Bashinsky petitioned this Court for a writ of mandamus directing the
Jefferson Probate Court to vacate its orders disqualifying her attorneys
from representing her in the underlying proceedings and appointing a
temporary guardian and conservator over her person and property.
Bashinsky’s former lawyer and her former executive assistant ("the
petitioners") had filed an emergency petition in the probate court seeking
the appointment of a temporary guardian and conservator for Bashinsky.
The petitioners were concerned that Bashinsky had made financial
decisions that they believed were problematic and asserted that they had
" 'witnessed a decline in Ms. Bashinsky’s faculties in their discussions with
Ms. Bashinsky about financial matters.' " ___ So. 3d at ___.
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The probate court appointed a guardian ad litem for Bashinsky and
a court representative, and, after meeting with Bashinsky, both found and
noted in their initial reports that they were unable to formulate a
definitive opinion or recommendation regarding the need for a guardian
and conservator. Their reports were later supplemented after discussions
with the petitioners and a former business associate of Bashinsky, all of
whom were fired by Bashinsky or others at her direction. The guardian
ad litem's and the court representative's supplemented reports
recommended that Bashinsky could benefit from a guardian and/or
conservator, although both also recommended further testing.
Bashinsky was initially represented by counsel of her choice, but the
petitioners moved to disqualify her counsel based on a conflict of interest.
On October 17, 2019, the probate court held a hearing on the emergency
petition. At that hearing, the probate court disqualified Bashinsky’s
attorneys, without giving her the opportunity to waive any alleged conflict
or to obtain new counsel, and, after the hearing, the probate court entered
an order appointing a temporary guardian and conservator and issuing
letters of temporary guardianship and conservatorship that automatically
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renewed every 15 days, all while Bashinsky remained unrepresented by
any counsel.11
In her mandamus petition, Bashinsky raised two primary issues: (1)
the probate court's alleged lack of personal jurisdiction over Bashinsky
based on the failure to properly serve her with the emergency petition and
(2) an alleged fundamental lack of due process as a result of the
disqualification of Bashinsky's counsel. Bashinsky also argued that the
probate court lacked subject-matter jurisdiction because, she said, the
petitioners lacked "standing" to file the emergency petition.
11Section 26-2A-102(b), Ala. Code 1975, provides that, after the
filing of a petition for a guardian, the court shall set a date for a hearing
and that, unless the allegedly incapacitated person is represented by
counsel, counsel shall be appointed. Section 26-2A-102(c) provides:
"(c) A person alleged to be incapacitated is entitled to be
present at the hearing in person. The person is entitled to be
represented by counsel, to present evidence, to cross-examine
witnesses, including the court-appointed physician or other
qualified person and any court representative, and upon
demand to trial by jury as provided in Section 26-2A-35[, Ala.
Code 1975]. The issue may be determined at a closed hearing
if the person alleged to be incapacitated or counsel for the
person so requests."
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With regard to the first issue, this Court noted that § 26-2A-107(a)
provides that a temporary guardian may be appointed "without notice."
However, as Bashinsky noted, § 26-2A-107 provides for such an
appointment only when an emergency exists. This Court then addressed
whether an actual emergency had existed so as to allow for the
appointment of a temporary guardian and/or conservator for Bashinsky,
recognizing that an emergency has been defined in the Alabama Uniform
Adult Guardianship and Protective Proceedings Jurisdiction Act, § 26-2B-
101 et seq., Ala. Code 1975, as " '[a] circumstance that likely will result in
substantial harm to a respondent’s health, safety, or welfare ....' " ___ So.
3d at ___ (quoting § 26-2B-201(a)(1), Ala. Code 1975). Finding that the
petitioners in the underlying proceedings had not alleged or demonstrated
such an emergency, this Court found that the order appointing a
temporary guardian and conservator was a nullity. In support of our
holding that there was no emergency situation, this Court noted:
"Any lingering doubt that the situation was not a true
emergency is erased by the probate court's scheduling of the
subsequent hearing on the permanent petition. As was
recounted in the rendition of the facts, the hearing on the
emergency petition was held on October 17, 2019. After the
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probate court rendered its judgment appointing a temporary
guardian and conservator, the probate court scheduled a
hearing on the permanent petition for March 12, 2020, five
months after the emergency hearing. In a dependency context,
removing a child from the custody of a parent without giving
that parent notice and an opportunity to be heard requires
that a full hearing be scheduled within 72 hours of such a
determination. See § 12-15-308(a), Ala. Code. 1975. Temporary
restraining orders are subject to a 10-day limitation period.
See Rule 65(b), Ala. R. Civ. P. Section 26-2A-107(a) itself limits
the appointment of a temporary guardian to 30 days, a
provision Judge King attempts to ignore by ordering that the
temporary guardian's appointment 'shall automatically renew
every fifteen (15) days until the Permanent Hearing in this
matter.' The short duration of such orders underscores that
emergency rulings are permitted based on the understanding
that the truncation of constitutional due-process rights they
entail will be mitigated in short order. The probate court's
decision at the October 17, 2019, hearing not to grant a
continuance to allow Ms. Bashinsky to retain new counsel is
unfathomable, given the length of the scheduled delay between
the hearings on the emergency petition and on the permanent
petition. More broadly, the fact that the probate court believed
that the matter could wait another five months for a
permanent determination starkly illustrates that any potential
harm to Ms. Bashinsky's health, safety, or welfare was not
immediate or substantial, i.e., this was not an 'emergency' by
any reasonable definition."
Ex parte Bashinsky, ___ So. 3d at ___.
Although the Bashinsky Court determined that the situation in that
case did not present an "emergency" under § 26-2A-107(a), the Court
34
1190984
noted that setting a time limit on the duration of a temporary
guardianship "underscores that emergency rulings are permitted based on
the understanding that the truncation of constitutional due-process rights
they entail will be mitigated in short order." ___ So. 3d at ___. It is also
clear that a temporary guardianship may be extended based upon "the
exigencies of the emergency." § 26-2A-107(a). However, an automatically
renewing order not only violates the plain meaning of § 26-2A-107(a), it
defeats the purpose of the 30-day limit on a temporary guardianship.
Although there is no express time limit regarding a temporary
conservatorship, the same reasoning logically applies to an automatically
renewing temporary conservatorship.
We recognize that the COVID-19 pandemic has impacted trials in
all courts, including the probate court, and we appreciate the constraints
the pandemic has placed on all courts to process cases in a timely manner.
This does not, however, excuse the probate court from acting in
accordance with the strictures of § 26-2A-107(a). Moreover, the probate
court issued automatically renewing temporary-guardianship and
35
1190984
temporary-conservatorship orders even before the pandemic. Accordingly,
the probate court's May 20, 2020, order violated § 26-2A-107(a).
III.
Last, Meg argues that an appointed, temporary guardian does not
have absolute authority to consent to, and to authorize, his or her ward's
being placed in hospice care. Further, Meg asserts that there is no
evidence indicating that John voluntarily made a choice to be placed in
hospice care because hospice is not medical care or treatment, but the
withholding of treatment. Meg further argues that if there had been a
valid
order
granting
temporary
letters
of
guardianship
and
conservatorship, the temporary guardian would have been required to
obtain court approval under § 22-8A-11, Ala. Code 1975, a part of the
Natural Death Act, § 22-8A-1 et seq., Ala. Code 1975, in order to place
John in hospice care, which, Meg asserts, is equivalent to withholding
medical treatment.
Because we have determined that the automatic-renewal portion of
the probate court's May 20, 2020, order is void, the probate court must
determine whether an emergency still exists necessitating a temporary
36
1190984
guardian for John. Suffice it to say, a temporary guardian may be granted
broad powers regarding health-care decisions. See Ala. Code 1975, § 26-
2A-107, § 26-2A-108(a), and § 26-2A-78(c)(4). Furthermore, Meg's reliance
on the Natural Death Act is misplaced. The Natural Death Act was
enacted to give competent adults (or their surrogates, pursuant to § 22-
8A-11) the right to have medical procedures, life-sustaining treatment,
or artificially provided nutrition and hydration withheld or withdrawn.
The Natural Death Act does not appear to apply in this case. The hospice
care recommended by John's physician is intended to manage John's "pain
and comfort" due to John's "high risk of death within the next six months
due to severe dementia/progressive, degenerative brain disease."
Conclusion
Based on the foregoing, we grant the petition and direct the probate
court to set aside its May 20, 2020, order purporting to automatically
renew the 30-day appointment of a temporary guardian and conservator
for John.
PETITION GRANTED; WRIT ISSUED.
Shaw, Wise, Sellers, Mendheim, Stewart, and Mitchell, JJ., concur.
37
1190984
Bryan, J., concurs in the result.
Parker, C.J., dissents.
38 | April 9, 2021 |
848e7c29-93a7-4add-b0b5-e2e5a1d1fc71 | Glenn "Wink" Painter v. City of Henagar | N/A | 1190815 | Alabama | Alabama Supreme Court | Rel: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190815
Glenn "Wink" Painter v. City of Henagar (Appeal from DeKalb Circuit
Court: CV-18-900114).
STEWART, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Bolin, Wise, and Sellers, JJ., concur. | March 12, 2021 |
b0cbee19-4f07-457b-93c0-9abaea6a2e2d | Ex parte Aaron Lamont Johnson. | N/A | 1190910 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190910
Ex parte Aaron Lamont Johnson. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Aaron Lamont Johnson v.
Alabama Department of Corrections) (Montgomery Circuit Court: CV19-222;
Criminal Appeals :
CR-18-1276).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
89970ea0-e680-4764-8e61-927a9b003850 | Ex parte Roger Dale Jordan. | N/A | 1200095 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1200095
Ex parte Roger Dale Jordan. PETITION FOR W
RIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Roger Dale Jordan v. State of
Alabama) (Etowah Circuit Court: CC-11-1229.60; CC-11-1230.60;
CC-11-1231.60; CC-11-1232.60; Criminal Appeals :
CR-18-1226).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
56d074f9-98a0-4825-bcf2-a138a47a545e | Rudolpho Blue Hughes v. Elizabeth Gonzalez Smith | N/A | 1190387 | Alabama | Alabama Supreme Court | Rel: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190387
Rudolpho Blue Hughes v. Elizabeth Gonzalez Smith (Appeal from Walker
Circuit Court: CV-13-900160).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | March 12, 2021 |
3d3b53e1-e844-4a86-aa56-c82d9704944b | BF Goodrich Company v. Martin | 253 So. 2d 45 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 45 (1971)
In re The B. F. GOODRICH COMPANY, a Corporation
v.
Lawless MARTIN.
Ex parte Lawless MARTIN.
6 Div. 891.
Supreme Court of Alabama.
September 30, 1971.
Edward F. Morgan, Tuscaloosa, for petitioner.
M. T. Ormond, Tuscaloosa, opposed.
HARWOOD, Justice.
Petition of Lawless Martin for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in B. F. Goodrich Co. v. Martin, 47 Ala.App. 244, 253 So. 2d 37.
Writ denied.
LAWSON, MERRILL, MADDOX and McCALL, JJ., concur. | September 30, 1971 |
5ddc5f18-a331-457a-8ef2-6b038ae913aa | McKinney v. State | 254 So. 2d 714 | N/A | Alabama | Alabama Supreme Court | 254 So. 2d 714 (1971)
Chester McKINNEY, Individually
v.
STATE of Alabama.
6 Div. 806-811.
Supreme Court of Alabama.
November 18, 1971.
Ferris S. Ritchey, Jr., Birmingham, Robert Eugene Smith, Towson, Md., for appellants.
William J. Baxley, Atty. Gen., and Charles H. Barnes, Asst. Atty. Gen., for the State.
PER CURIAM.
Chester McKinney owned and operated an "Adults Only" book store on 5th Avenue, North, in Birmingham, Alabama. The windows of the store were painted so that the items offered for sale were not visible except to those who entered the store. It does not appear that there was any type of promotion or advertising to stimulate the sales of the book store or any sales to minors.
On March 9, 1970, one D. H. Johnson, Chief Investigator for the Attorney General's office of the State of Alabama, visited the book store as an investigator of pornography and purchased six magazines which were openly offered for sale. The magazines he purchased were sealed with cellophane covers so that they could not be picked up and thumbed through. The front and back covers, however, were clearly visible through the cellophane covers and in one or more of these covers were the photographs of a female with her feet spread-eagled apart, exposing her genital organs. On the basis of the sale and purchases of these magazines the Assistant Attorney General in the State of Alabama filed bills of complaint against each magazine in the equity side of the Circuit Court of Jefferson County praying that the magazines be adjudicated obscene and that a temporary injunction be issued against their further exhibition or sale in this State. Together with the bill of complaint was an affidavit from the Assistant Attorney General alleging that in his opinion the purchased magazines were obscene. The magazines themselves were attached as exhibits to the bills. The respondent demurred to the complaint raising constitutional questions and upon the demurrers being overruled he filed an answer denying that the magazines were constitutionally obscene and a cross-bill seeking an injunction restraining further interference with *715 the operation of the business. The bills were filed pursuant to the provisions of Alabama Law on Obscenity which appears as Chapter 64 of Title 14 in the pocket part of the 1958 Recompiled Code of Alabama.
Paragraph 7 of each of the complaints charged as follows:
The cases were consolidated for trial.
Only one witness testified for the complainant. He merely testified to the purchase of the magazines in question from the book store and as to its location and the fact that it had the quotation "Adults Only" on the sign both inside and outside the store and as to the other facts set forth above.
The respondent called as his only witness the Assistant Attorney General who had instituted the proceedings. He was examined by the complainant as to his legal knowledge of the various opinions of the courts on the matter concerning the subject of obscenity. For what purpose this examination was conducted, we do not speculate.
No further evidence was offered by either party, thereupon the court entered the following decree:
"This cause came on to be heard and was submitted upon pleadings and proof as noted on June 23, 1970.
"This cause was filed under Title 14, Section 374(3) of the Code of Alabama of 1940 as recompiled and amended.
"The party Complainant is properly styled under the provisions of Chapter 64-A of said Title 14 and the party Respondents are properly named thereunder. The prayer for relief in the original Bill of Complaint prays for an adjudication by the Court that the magazine, the subject of this action, contains matter that is obscene, for a permanent injunction against the preparing, selling, exhibiting, commercially distributing, giving away or offering to give away or possessing it with the intent to sell and commercially distribute or exhibit or offer to give it away, and for its surrender, seizure and destruction.
"The Cross-Bill of the Respondent, Chester McKinney, prays for a ruling by the Court that the matter contained in the said magazine is not obscene, and further prays that the Court will enjoin the Complainant-Cross-Respondent from enforcing the said Statute upon which the Bill of Complaint is founded and from instituting any new civil or criminal proceedings against Respondent-Cross-Complainant.
"The Court must found its adjudication of obscenity, vel non, upon the prescribed definition contained in the said Section 374 (3) as follows:
"`"Obscene" means lewd, lascivious, filthy and pornographic and that to the average person, applying contemporary community standards, its dominant theme taken as a whole appeals to prurient interest.' The Court finds that the publication complained against comes within the definition *716 of `printed or written matter or material' as set forth in said subsection.
"Applying the above definition of the word `obscene' to the printed or written material or matter complained against the Court finds that it is obscene. The Court gives weight and credence to the testimony of the witnesses for Complainant relative to the question of the obscenity of the said material; and, further, this Court has been, for the past 61 years a member of the society making up the community of Birmingham in Jefferson County, Alabama and, as such, is aware of the contemporary community standards, in said community, relative to the question of whether printed or written matter or material is obscene, within the meaning of the said Statute.
"The question of the obscenity, vel non, of the said magazine is the portal question in this cause, and having been by the Court decided it is CONSIDERED, ORDERED, ADJUDGED AND DECREED as follows:
"ONE: That certain magazine or publication described in the Bill of Complaint as `Blast Off Number 1' is declared to be `obscene' within the meaning of the word as set forth in Title 14, Section 374(3) 1940, Code of Alabama as recompiled and amended.
"TWO: The said magazine is declared to be contraband.
"THREE: The Sheriff of Jefferson County is hereby ordered to seize and destory all copies of the said magazine in the possession of the Respondent, Chester McKinney, individually and doing business as Paris Bookstall.
"FOUR: The respondents are permanently enjoined from preparing, selling, exhibiting or giving away, or offering to give away or possession with the intent to sell, commercially distribute, exhibit, give away or offer to give away any copy of the said magazine.
"FIVE: The relief prayed by Respondent, Chester McKinney, individually and doing business as Paris Bookstall, is denied, and the said Cross-Complaint is dismissed.
"SIX: The costs of this action are taxed to the Respondent, Chester McKinney, individually and doing business as Paris Bookstall, for which let execution issue.
"DONE and ORDERED this the 30th day of June, 1970.
Similar decrees were entered as to the other five magazines.
Amidst the sea of words and the shifting sands of legal writing as to what constitutes obscenity not subject to sale and distribution to adults one can well be led away from solid ground. The appellant refers again and again in his brief to the magazines as "girlie" magazines. A more apt description would be "genital" magazines. No claim is made or proof offered that they were of any artistic merit or other than lewd in general content or had any appeal other than prurient. Even a cursory examination reveals their wholly pornographic nature from which pollutants of the mind is all that could emanate.
We are not unaware that the burden of proof of obscenity was on the complainants and that the oral proof was scant but the silent witnesses, that is the magazines themselves, which are a part of the record under review and the fact that their open and willing sale by the respondent is not denied suffices to enable us to pass upon the obscenity, vel non, of the magazines. From viewing them we are persuaded that in them we find a coalescence of the following elements: (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.
*717 We find ourselves in full accord with the holding of the Supreme Court of Florida in the recent case of May v. Harper, 250 So. 2d 880, from which we quote:
We therefore affirm the decrees appealed from but in doing so observe and find that the obscenity, vel non, of the magazines in question offends not only the local mores of Jefferson County, Alabama, but are offensive both to contemporary standards in Jefferson County and across the country.
Affirmed.
HEFLIN, C. J., and COLEMAN, BLOODWORTH, MADDOX and McCALL, JJ., concur. | November 18, 1971 |
35dadfc0-d9cb-4e07-b212-961d7781f550 | Christopher Architecture & Interiors LLC v. Sharon Thomas | N/A | 1190406 | Alabama | Alabama Supreme Court | Rel: March 19, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190406
Christopher Architecture & Interiors LLC v. Sharon Thomas (Appeal
from Cullman Circuit Court: CV-16-900194).
WISE, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(A), Ala. R. App. P.
Parker, C.J., and Bolin, Sellers, and Stewart, JJ., concur. | March 19, 2021 |
9e840a99-729d-475d-ad31-63e786e33ea9 | Ex parte Tutt Real Estate, LLC, d/b/a Tutt Land Company. | N/A | 1190963 | Alabama | Alabama Supreme Court | Rel: March 26, 2021
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, 2020-2021
____________________
1190963
____________________
Ex parte Tutt Real Estate, LLC, d/b/a Tutt Land Company
PETITION FOR WRIT OF MANDAMUS
(In re: Matthew Smith
v.
Mark H. Smith et al.)
(Hale Circuit Court, CV-15-900099)
SELLERS, Justice.
1190963
Tutt Real Estate, LLC, doing business as Tutt Land Company
("Tutt"), petitions this Court for a writ of mandamus directing the Hale
Circuit Court ("the circuit court") to vacate its July 14, 2020, order
awarding Tutt a smaller commission than it claims it is entitled to under
a real-estate contract ("the exclusive-listing agreement") that Tutt
executed with Ellen Berry-Pratt, the purported conservator for the estate
of Harriet Cobbs Smith ("Mrs. Smith"). The case was purportedly
removed to the circuit court from the Hale Probate Court ("the probate
court"). However, the removal was not accomplished in accordance with
§ 26-2-2, Ala. Code 1975, and, thus, the circuit court never acquired
subject-matter jurisdiction. Therefore, we grant the petition and issue the
writ.
I. Facts and Procedural History
Mrs. Smith is the mother of three adult children -- Matthew Smith,
Mark H. Smith, and Jessica Smith Kimbrough. In March 2015, Matthew
filed a petition in the probate court, alleging that Mrs. Smith was
incapacitated and requesting the appointment of a guardian and a
conservator for her benefit; the proceeding commenced by that petition is
2
1190963
referred to as "the probate action." The probate court entered an order
appointing attorney Jamee York as guardian ad litem for Mrs. Smith and
directing that Mrs. Smith undergo a medical examination. The physician
who evaluated Mrs. Smith submitted a report indicating that Mrs. Smith
was impaired by vascular dementia and that it was unsafe for her to make
"medical, legal, and financial decisions" for herself. Mrs. Smith's children
disputed who should be appointed as guardian of Mrs. Smith's person and
as conservator of her estate.
In November 2015, while the probate action was pending in the
probate court, Matthew filed a complaint in the circuit court against
Mark and Jessica, seeking declaratory and injunctive relief; the
proceeding commenced by that complaint is referred to as "the civil
action." In the civil action, Matthew alleged that the probate court had
suspended a February 15, 2015, power of attorney that Mrs. Smith had
executed in favor of Mark but that, despite that suspension, Mark had
continued to execute legal documents on behalf of Mrs. Smith. Matthew
requested that the circuit court, among other things, enter a temporary
restraining order enjoining further use of the power of attorney, declaring
3
1190963
that the power of attorney was void, and declaring that certain legal
documents executed pursuant to the power of attorney were void.
Matthew also requested that the circuit court stay the probate action
pending resolution of the civil action.
On April 27, 2016, the circuit court entered an order in the civil
action, granting Matthew's request for a temporary restraining order
pending a hearing, enjoining Mark from using the power of attorney for
any purpose, and staying the probate action pending resolution of the civil
action. The circuit court subsequently entered an order lifting its stay of
the probate action for the limited purpose of "allowing the Probate Court
to appoint Jamee York as guardian and conservator." Consistent with the
circuit court's directive, the probate court entered an order appointing
York as Mrs. Smith's guardian and conservator. Matthew appealed that
order to the circuit court pursuant to § 12-22-20, Ala. Code 1975.
In August 2016, Mark and Jessica petitioned the circuit court to
remove the probate action from the probate court to the circuit court
pursuant to § 26-2-2; that petition states:
4
1190963
"1. Petitioners, Mark Smith and Jessica Kimbrough are the
children of [Mrs. Smith].
"2. There has been no final resolution of the matters
pertaining to [Mrs. Smith]. Further, [Matthew] has filed an
appeal of the ruling of the probate court with [the circuit
court].
"3. There are currently two actions pending regarding [Mrs.
Smith] -- one in Circuit Court and one in Probate Court. These
matters have substantially overlapping issues and efficiency
would best be served by removing [the probate action] and
consolidating it with the pending [civil action]."
On August 24, 2016, the circuit court entered an order purporting to
remove the probate action to the circuit court. The circuit court thereafter
entered an order approving a settlement agreement in which the parties
agreed, among other things, to the appointment of Ellen Berry-Pratt as
Mrs. Smith's guardian and as the conservator of Mrs. Smith's estate.
Pursuant to the settlement agreement, the circuit court, among other
things, purported to issue letters of conservatorship to Berry-Pratt and to
order an accounting and inventory of the conservatorship estate.1 In April
1In April 2017, the circuit court entered an order purporting to
appoint Matthew as successor guardian of Mrs. Smith's person, while
Berry-Pratt continued to serve as conservator of her estate.
5
1190963
2017, the circuit court entered an order granting Berry-Pratt's request to
sell from the conservatorship estate property referred to as the Smith
Farm ("the farm"). Berry-Pratt thereafter entered into the exclusive-
listing agreement with Tutt in which Tutt agreed to market and sell the
farm for $1,625,800, with a 5% commission, subject to court approval. The
exclusive-listing agreement provided that Mrs. Smith's grandson, Miller
Smith, would have until November 7, 2018, to make an offer that would
be excluded from Tutt's exclusive right to sell and claim a commission. On
November 23, 2018, Miller offered to purchase the farm for $1,314,000.
Tutt then presented a contract from a buyer offering to purchase the farm
for $1,611,200, and Miller subsequently raised his initial offer to
$1,535,000. The circuit court entered an order approving the sale of the
farm to Miller and reserving the right to award a commission to Tutt
under the exclusive-listing agreement. Tutt thereafter moved to intervene
and requested payment of its commission on either the offer it presented
or Miller's final offer. On July 14, 2020, the circuit court entered an order
holding, in relevant part, that Tutt was entitled to $11,750 as a
6
1190963
commission, which it could "claim against the estate of [Mrs. Smith] for
consideration by the court at final distribution."
Tutt seeks a writ of mandamus directing the circuit court to vacate
its July 14, 2020, order on the basis that the circuit court never acquired
subject-matter jurisdiction over the probate action and, thus, that the
order is void.
II. Standard of Review
" 'Mandamus is a drastic and extraordinary
writ, to be issued only where there is (1) a clear
legal right in the petitioner to the order sought; (2)
an imperative duty upon the respondent to
perform, accompanied by a refusal to do so; (3) the
lack of another adequate remedy; and (4) properly
invoked jurisdiction of the court.'
"Ex parte Integon Corp., 672 So. 2d 497, 499 (Ala. 1995). The
question of subject-matter jurisdiction is reviewable by a
petition for a writ of mandamus. Ex parte Flint Constr. Co.,
775 So. 2d 805 (Ala. 2000)."
Ex parte Huntingdon Coll., 309 So. 3d 606, 609-10 (Ala. 2020).
III. Analysis
Probate courts have general and original jurisdiction over petitions
for the appointment of guardians and conservators for incapacitated
7
1190963
persons. § 12-13-1(b)(6) and (b)(7), Ala. Code 1975. The filing of a petition
for the removal of such an action to a circuit court pursuant to § 26-2-2,
and the entry of an order of removal by the circuit court are prerequisites
for the circuit court to acquire jurisdiction. Beam v. Taylor, 149 So. 3d
571 (Ala. 2014). Moreover, a circuit court does not acquire subject-matter
jurisdiction over such an action unless the statutory requirements of § 26-
2-2 have been met. Id. Section 26-2-2 provides:
"The administration or conduct of any guardianship or
conservatorship of a minor or incapacitated person may be
removed from the probate court to the circuit court, at any
time before the final settlement thereof by the guardian or
conservator of any such guardianship or conservatorship or
guardian ad litem or next friend of such ward or anyone
entitled to support out of the estate of such ward without
assigning any special equity, and an order of removal must be
made by the court or judge upon the filing of a sworn petition
by any such guardian or conservator or guardian ad litem or
next friend for the ward or such person entitled to support out
of the estate of such ward, reciting in what capacity the
petitioner acts and that in the opinion of the petitioner such
guardianship or conservatorship can be better administered in
the circuit court than in the probate court."
(Emphasis added.)
In other words, § 26-2-2 provides that, without assigning any special
equity, a petition for removal may be filed by only a "guardian or
8
1190963
conservator or guardian ad litem or next friend for the ward or such
person entitled to support out of the estate of such ward." In this case, the
petition for removal did not comply with the first two requirements of §
26-2-2, because the petition was unsworn and did not recite in what
capacity Mark and Jessica were acting.2 First, in order for a removal
petition to meet the requirement of being "sworn," a petitioner must make
a declaration under oath that he or she believes, and has made sufficient
inquiry to confirm, that the contents of the petition are accurate. Such a
declaration must be properly acknowledged by a notary public or a judge.
The mere filing of an unsworn petition does not comply with § 26-2-2
because that statute requires anyone petitioning under that statute to
fully appreciate the significance and seriousness of his or her actions by
swearing under oath and thus invoking penalties for perjury should the
2The third requirement of § 26-2-2 -- a statement or allegation that,
"in the opinion of the petitioner such guardianship or conservatorship can
be better administered in the circuit court than in the probate court" -- is
subjective in nature and does not require any magic or specific words on
the part of the petitioner. It appears that the allegation in the petition in
this case satisfied the third requirement.
9
1190963
allegations in the petition be knowingly false.3 Next, in seeking removal,
Mark and Jessica were required to state in what capacity they were
acting. It is undisputed that neither Mark nor Jessica was Mrs. Smith's
guardian, conservator, or guardian ad litem; nor was there any allegation
that they were entitled to support out of her estate while she was alive.
Furthermore, the fact that Mark and Jessica alleged in the petition that
they were Mrs. Smith's children does not qualify them as next friends
with standing to seek removal under § 26-2-2. This Court has made clear
that a recitation of capacity is still required even if the petitioner has a
blood relationship or is the next of kin to the protected person. See Hoff
v. Goyer, 107 So. 3d 1085 (Ala. 2012) (rejecting grandson's argument that
his blood relationship qualified him as next friend with standing to seek
removal of proceeding to circuit court pursuant to § 26-2-2); and McNairy
v. McNairy, 416 So. 2d 735, 736 (Ala. 1982) (holding that petition for
3The term "sworn" as used in § 26-2-2 is not statutorily defined.
However, the term "swear," from which "sworn" stems, is defined in
Black's Law Dictionary 1749 (11th ed. 2019) as "[t]o take an oath." An
"oath" is defined as "[a] solemn declaration ... that one's statement is true
...." Black's Law Dictionary 1289 (11th ed. 2019).
10
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removal filed by protected person's sister did not meet the requirements
of § 26-2-2 because the petition was unsworn and "did not recite in what
capacity the [sister] was acting"). The removal petition in this case, being
unsworn and failing to recite in what capacity Mark and Jessica were
acting, is fatally defective and thus did not confer jurisdiction upon the
circuit court.
IV. Conclusion
For the foregoing reasons, Tutt has demonstrated a clear legal right
to the relief it seeks. Therefore, we grant the petition and issue the writ
of mandamus directing the circuit court to vacate its July 14, 2020, order
concerning Tutt's commission under the exclusive-listing agreement. We
further direct the circuit court to vacate its August 24, 2016, order
purporting to remove the probate action to the circuit court. We note
that, because the circuit court never obtained jurisdiction over the probate
action, jurisdiction over that proceeding remains in the probate court.
11
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PETITION GRANTED; WRIT ISSUED.
Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, and
Stewart, JJ., concur.
Mitchell, J., concurs specially.
12
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MITCHELL, Justice (concurring specially).
When this Court interprets a statute, our job is to determine the
meaning of the words as written by the Legislature. DeKalb Cnty. LP Gas
Co. v. Suburban Gas, Inc., 729 So. 2d 270, 275 (Ala. 1998). Because
"[w]ords change meaning over time, and often in unpredictable ways," it
is important to give words in statutes the meaning they had when they
were adopted to avoid changing what the law is. Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts, § 7, at 78
(Thomson/West
2012)
(explaining
the
fixed-meaning
canon
of
interpretation); see also New Prime Inc. v. Oliveira, 586 U.S. ___, ___, 139
S. Ct. 532, 539 (2019). To do otherwise would inappropriately expand the
judicial power. See Ala. Const. 1901 (Off. Recomp.), Art. III, § 42;
Blankenship v. Kennedy, [Ms. 1180649, May 29, 2020] ___ So. 3d ___, ___
(Ala. 2020). Accordingly, whenever we use dictionaries to help us
interpret statutes, it is critical to use dictionaries of the proper vintage to
13
1190963
better understand the meaning of relevant terms at the time of their
adoption.4
Dictionaries are important -- but imperfect -- tools that can be used
to determine the meaning of statutory terms. One reason why they are
imperfect is because they "tend to lag behind linguistic realities." Scalia
& Garner, Reading Law, Appendix A, at 419. Thus, it may be entirely
proper to consult a dictionary published many years after the enactment
of a statutory text. Id. But consulting a dictionary too far removed from
the date of enactment can allow the distortions of semantic drift to taint
the interpretive analysis. See id. at 78 (illustrating the dangers of
semantic drift through Queen Anne's complimentary description of St.
Paul's Cathedral as "awful, artificial, and amusing"). This linguistic-
4There are other important considerations when consulting a
dictionary. Those include an examination of how scholarly the dictionary
is; whether one should use a general English-usage dictionary or a
dictionary written for a technical audience, such as Black's Law
Dictionary; and whether the use of a dictionary is appropriate at all. See
Scalia & Garner, Reading Law, Appendix A, at 415-19; Alabama Dep't of
Revenue v. CSX Transp., Inc., 575 U.S. 21, 34-35 (Thomas, J., dissenting).
14
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calibration conundrum demonstrates why, when possible, multiple
dictionaries should be consulted. Id., Appendix A, at 417.5
In this case, footnote three of the main opinion uses the 2019 version
of Black's Law Dictionary to define the terms "swear" and "oath." ___ So.
3d at ___ n.3. The past participle of the former -- "sworn" -- appears in the
text of the statute that is key to the Court's holding: § 26-2-2, Ala. Code
1975. Although § 26-2-2 was relocated during the state's recodification
process in the 1970s and amended as recently as 1987, the relevant
portion here -- "upon the filing of a sworn petition" -- has been in the
statute since it was adopted in 1923. Compare Ala. Code 1923, § 8102,
with § 26-2-2, Ala. Code 1975. And when a statute is recodified, its
original meaning persists unless the Legislature adds new language that
clearly changes the meaning of that portion of statute. See Scalia &
Garner, Reading Law, § 40, at 256 (explaining the reenactment canon).
5To provide guidance, the late Justice Antonin Scalia and
lexicographer Bryan Garner compiled a list of authoritative English-
language and legal dictionaries grouped by period. This list, found in the
first appendix of their seminal treatise Reading Law: The Interpretation
of Legal Texts, is a great place for any practitioner to start.
15
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Therefore, it would be more appropriate to consider dictionaries closer to
1923 than the 2019 edition of Black's, which was published almost a
century after the Legislature enacted the statute.
Fortunately, the definition of the word supplied by the main opinion
does not materially differ from those found in dictionaries published closer
to the time of the statute's enactment. See, e.g., Black's Law Dictionary
1692 (3d ed. 1933) (defining "swear" as "[t]o take an oath; to become bound
by an oath duly administered"). Nor does its relevant definition differ
between legal dictionaries like Black's and general English-language
dictionaries like Webster's Second.6 See, e.g., Webster's New
International Dictionary 2546 (2d ed. 1935) (defining "swear" in the legal
6 While, as a general rule, the ordinary meaning of a term governs,
there are instances where context indicates that a technical sense applies.
See Ex parte Dan Tucker Auto Sales, Inc., 718 So. 2d 33, 36 (Ala. 1998)
("Words used ... will be given their ordinary, plain, or natural meaning
where nothing appears to show they were used in a different sense or that
they have a technical meaning."); Scalia & Garner, Reading Law, § 6, at
73. "And when the law is the subject, ordinary legal meaning is to be
expected, which often differs from common meaning." Scalia & Garner,
Reading Law, § 6, at 73. The distinction between ordinary and technical
meaning, however, does not affect this case because the general and legal
dictionaries are in accord.
16
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context as "[t]o take oath"). But such agreement among different
dictionaries across time and editorial viewpoint may not exist when we
interpret other words and phrases in future cases. Practitioners seeking
to guide this Court in interpreting statutes should accordingly proceed
with caution when reaching for a dictionary.
17 | March 26, 2021 |
740c855e-fb28-44c0-9662-1b2297dc24fe | Otts v. Gray | 255 So. 2d 26 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 26 (1971)
Audrey W. OTTS
v.
Billy L. GRAY et al.
6 Div. 692.
Supreme Court of Alabama.
September 23, 1971.
On Rehearing November 18, 1971.
*27 Turner & Turner, Tuscaloosa, for appellant.
Zeanah, Donald & Lee, Tuscaloosa, for appellee Rich V. Ellis.
*28 Jones, McEachin, Ormond & Fulton, Tuscaloosa, for appellee General Motors Corp.
SIMPSON, Justice.
Essentially the facts involved in this case are as follows:
Appellant (plaintiff) Audrey Otts filed suit for personal injury sustained by her in an automobile accident on the 27th day of February, 1967, in Tuscaloosa County. There were three vehicles involved in the wreck, the plaintiff's Volkswagen, a Chevrolet truck driven by defendant Billy L. Gray and owned by defendant Thomas Swindle, and a Ford Comet owned and driven by Rich V. Ellis. It was raining on the day of the accident. The plaintiff and the defendant, Ellis, were both traveling north on U. S. Highway 43. The loaded cordwood truck driven by defendant Gray and owned by defendant Swindle was traveling south. As plaintiff's automobile was meeting the log truck, the left rear wheel came off the truck, crossing the highway in front of the plaintiff. Plaintiff applied her brakes and according to the plaintiff was struck from the rear by defendant Ellis as the cordwood from the log truck began falling on the plaintiff's Volkswagen. Plaintiff filed suit against the defendants Gray, Ellis, and Swindle, alleging that her injuries were the proximate result of their concurring negligence.
General Motors Corporation was brought into the suit by third-party complaints filed by defendants Gray and Swindle alleging that the plaintiff's injuries were the proximate result of the negligent manufacture of the log truck.
At the conclusion of the evidence the court granted the affirmative charge as to General Motors Corporation. The jury returned a verdict in favor of the plaintiff and against the defendant Swindle for $15,000. Following the denial of a motion for new trial this appeal was taken.
It is first argued by the appellant that error was committed by the trial court with regard to the selection of the jury. The appellant demanded a jury trial in this case. She contends that the manner of apportioning the strikes was error. The record shows the following in this connection:
* * * * * *
It is the plaintiff-appellant's contention that the third-party defendant, General Motors Corporation, should have been treated as an original defendant in the matter of striking the jury so that she would have gotten one-half of the strikes and all original defendants and the third-party defendant would have shared one-half.
The court and all parties to this litigation without objection treated the manner *29 of jury selection as being controlled by Title 30, § 54, Code, which provides:
In construing the predecessor to this statute (Code of 1876, § 3018) this court has held that the right to a struck jury in a civil case is secured by statute,
In the quoted case the plaintiff had sued three corporate defendants, who had different defenses and the court held that the right of the plaintiff to a struck jury under our statute could not be defeated because more than one defendant was sued, and that it was proper to allow each defendant to strike in rotation, the plaintiff having the first strike, and the defendants collectively sharing alternate strikes.
The other method of selecting a jury is by the use of peremptory challenges. See § 53, Title 30, Code of Alabama, 1940. Again an early interpretation of this statute established that several defendants in a cause constitute but one party and are entitled to no more peremptory challenges than a single defendant. Bibb v. Reid & Hoyt, 3 Ala. 88.
Regardless of whether the selection of a jury is conducted under either of said sections, historically and traditionally the plaintiff has received one-half the challenges regardless of the number of defendants.
Alabama's Third-Party Practice Act (Title 7, § 259 [1-3], Code of Alabama, 1940, as amended) contains no language concerning how a jury is to be selected when the practice authorized under said act is involved. There is language in this act which indicates that a third-party defendant is to be treated as if that third-party defendant had originally been a party defendant. Section 259(2), supra, provides in pertinent part:
Section 259(1) (b), supra, provided "Such additional parties shall make their defenses to any such cross-claim as if originally sued". Section 259(3), supra, provides that the Third-Party Practice Act shall be construed insofar as practical in pari materia with other laws and rules of the court governing civil actions.
*30 Certainly no language in the Third-Party Act can be construed to indicate that the legislature intended that there be a change in the methods of jury selection when a third-party defendant is made a party to a suit. There is language that indicates that parties brought in by a third-party complaint are to be treated as if they occupy the same position as if they were made parties originally to the cause.
This court is further persuaded that the long observed practice by which the plaintiff's side of a law suit shall receive one-half of the challenges should not be overturned in its application to the third-party practice because basically the primary interest and purpose of all defendants, regardless of whether they are original parties or added parties, is to defeat the claim of the plaintiff. While defendants may have adverse interests among themselves, no injury will result to any defendant if the plaintiff fails to recover in a suit where there are multiple defendants regardless of whether they are original defendants or third-party defendants.
In the case under review the plaintiff was erroneously denied equal challenges with the defendants collectively, and therefore this cause must be reversed.
The next argument made by appellant is that the trial court erred in its rulings on three questions propounded to witnesses. This argument concerns assignments of error 2, 3, and 5 which are argued together.
Assignment of error 2 complains that the trial court erred in sustaining the objection of the third-party defendant, General Motors, to the following question propounded by the attorney for the appellant:
The cases have repeatedly held that the sufficiency of the form and substance of a hypothetical question rests largely in the discretion of the trial court and will not be the basis for reversal in the absence of clear abuse of that discretion. Louis Pizitz Dry Goods Co. v. Cusimano, 206 Ala. 689, 91 So. 779; Brown v. Mobile Electric Co., 207 Ala. 61, 91 So. 802; Birmingham Ry. & Elec. Co. v. Butler, 135 Ala. 388, 33 So. 33; Long Distance T. & T. Co. v. Schmidt, 157 Ala. 391, 47 So. 731; Grasselli Chem. Co. v. Davis, 166 Ala. 471, 52 So. 35.
We cannot predicate error to reverse on the court's action with respect to the above hypothetical question. First, the court did not sustain the objection to the question outright, but merely conditioned it upon the expert's having an opinion as to whether the cracks were in the brake drum prior to the date specified in the question. If the expert had no opinion as to whether they were there or not, obviously he could not have had an opinion as to what caused them to come in the brake drum prior to that date.
Assignment of error 3 complains that the court erred in sustaining the objection of the third-party defendant, General Motors, to a question propounded to a witness by the original defendant Ellis.
Assignment of error 5 claims error by the court in overruling an objection made by original defendant Swindle to a question propounded to a witness by third-party defendant General Motors.
*31 Whether error or not, this appellant cannot complain of action by the trial court in ruling on these objections when neither of the rulings complained of was adverse to appellant. He was neither the objector nor the questioner. Generally, only rulings adverse to the appellant are available on appeal. Ritter v. Hoy, 2 Ala.App. 358, 56 So. 814; Coastal States Life Insurance Co. v. Gass, 278 Ala. 656, 180 So. 2d 255.
It follows that there is no error to reverse on this basis.
Plaintiff next complains that the court erred in granting the affirmative charge in favor of the third-party defendant General Motors Corporation. It should be remembered that General Motors was brought into the case by third-party complaints filed by original defendants, Gray and Swindle. These complaints as last amended allege negligence resulting in injury to plaintiff in the negligent manufacture of a wheel or portion of a wheel assembly, or a hub, or a lug or lug bolts, causing the same to disintegrate, thus causing the load of cordwood to fall from the truck (owned by one third-party plaintiff and driven by the other) to the injury of the original plaintiff. The third-party plaintiffs, Gray and Swindle, have not objected to the court action in granting the affirmative charge as to the third-party defendant. Third-party plaintiff Swindle originally appealed the judgment rendered against him but dismissed the appeal.
The question then is whether the action of the trial court in granting the affirmative charge against General Motors Corporation is available to the original plaintiff on appeal here, the third-party plaintiffs not complaining of the court's action in that regard.
A portion of Alabama's Third-Party Practice Act (§ 259[2], supra, of Title 7, supra) provides in part as follows:
The original plaintiff here never asserted any claim against General Motors Corporation. She never amended her complaint to state any theory of recovery against the third-party defendant. This court noted in Ex parte Huguley Water System, 282 Ala. 633, 213 So. 2d 799, that the Alabama Third Party Practice Act is substantially similar to Rules 13 and 14, Federal Rules of Civil Procedure, and indeed was patterned after the Federal Rules.
Under the Federal Practice, only the third-party plaintiff may complain of a judgment dismissing the third-party complaint. Barron & Holtzoff Federal Practice and Procedure, Rules Edition, § 428. Further under the Federal Rule an original plaintiff cannot be required to assert a claim against a third-party defendant brought in by an original defendant, but may do so. In Delano v. Ives, 40 F. Supp. 672 (E.D.Pa.), the court said:
These Federal cases are, of course, not binding on us. However, they are persuasive of the treatment to be given our statute patterned after the Federal Rules. Thus we hold the plaintiff had no standing to complain of the court's granting the affirmative charge in favor of the third-party defendant. The third-party plaintiff Swindle has dismissed his appeal against *32 the third-party defendant so the propriety of the court's granting the affirmative charge as to it is not before us.
Plaintiff in assignment of error 10 complains that the court erred in giving at the request of appellee Ellis the following charge:
This is a correct statement of the law. Karpeles v. City Ice Delivery Co., 198 Ala. 449, 73 So. 642.
The plaintiff says that the charge has a tendency to mislead the jury. We do not agree with this contention particularly in light of the court's oral charge. However, even if it were misleading, though a correct statement of the law, the plaintiff's remedy was to request an explanatory charge.
The last contention of plaintiff is to the effect that the verdict of the jury is contrary to the law in that it exonerates defendant Gray (the driver) and goes against defendant Swindle (the owner). Plaintiff's argument is that under the doctrine of respondeat superior a verdict cannot stand which finds against the master and for the servant. This is true, but is limited to those cases where the liability of the master is predicated solely on the act or omission of the servant. 14 Ala.Dig., Master and Servant. This was not the case here. There was alleged and proved to the satisfaction of the jury a theory of liability against defendant Swindle, the owner of the truck, entirely independent of any act or omission on the part of the driver. The plaintiff's complaint alleged that the owner maintained and operated a truck in a dangerous and unsafe condition. The evidence supported these allegations. The complaint and evidence support a verdict against the owner and for the driver. Defendant Swindle's liability in the case under the pleadings and evidence does not rest on the doctrine of respondeat superior. Rather the evidence showed that he supervised the loading of the truck; that it was overloaded by some 6,000 pounds; that the truck was equipped with worn lug bolts and the left rear wheel had a tendency to get loose, of all of which he was aware. In fact, on the morning of the accident the evidence was that Swindle told his driver to stop and check the lugs. There was ample evidence under which the jury was justified in returning the verdict it did.
For the reason herein stated, this cause is reversed and remanded.
Reversed and remanded.
HEFLIN, C. J., and COLEMAN, BLOODWORTH and McCALL, JJ., concur.
PER CURIAM.
The third party defendant General Motors Corporation in its application for rehearing asked the Court to extend its opinion to hold expressly that the trial court's judgment in favor of the third party defendant General Motors Corporation still stands and that the case was not reversed as to said General Motors Corporation.
*33 Third party defendant General Motors Corporation was brought into the case by a third party complaint filed by defendants Gray and Swindle. The affirmative charge was granted in favor of the third party defendant General Motors Corporation and the jury returned verdicts in favor of General Motors in accordance therewith. The third party plaintiff Gray did not appeal. Third party plaintiff Swindle appealed but dismissed his appeal. The original plaintiff in the instant case never asserted any claim against General Motors Corporation.
A similar situation existed in the case of Tullis v. Blue, 216 Ala. 577, 114 So. 185 (1927). This was an automobile accident case in which the plaintiff Blue obtained a judgment for damages against both defendants, Tullis and Haltiwanger. Only defendant Tullis appealed. This Court in that case held that defendant Tullis was entitled to the general affirmative charge, as requested by him in writing during the trial. In the concluding paragraphs of its original opinion, this Court said:
In its opinion on rehearing, this Court said:
After reviewing the law on the subject, this Court then concluded its opinion on rehearing:
In the instant case, defendants (also third party plaintiffs) Gray and Swindle are in a position corresponding to that of defendant Haltiwanger in Tullis v. Blue, supra. Therefore, the judgment in favor of third party defendant General Motors Corporation, not having been appealed from, should stand as though no appeal had been taken.
Application for rehearing granted as to General Motors Corporation. Opinion extended.
HEFLIN, C. J., and COLEMAN, BLOODWORTH, MADDOX and McCALL, JJ., concur. | November 18, 1971 |
bc9e3bf4-37be-41de-bb99-3a4b5c13a9b2 | Humphrey v. Boschung | 253 So. 2d 769 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 769 (1971)
In re Wayne HUMPHREY, as Executor of the Estate of T. J. Morrow, Deceased,
v.
Opal S. BOSCHUNG and Onie S. Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased.
Ex parte Opal S. BOSCHUNG and Onie S. Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased.
8 Div. 415.
Supreme Court of Alabama.
September 30, 1971.
*770 Hutson & Elrod, Decatur, for petitioners.
Grady J. Long, Hartselle, for respondent.
LAWSON, Justice.
We granted the petition for writ of certiorari filed by Opal S. Boschung and Onie S. Garrison in their individual and representative capacities to review the decision and judgment of the Court of Civil Appeals in the case of Humphrey, as Executor of Estate of Morrow, Deceased v. Boschung and Garrison, Individually and as Administratrices of the Estate of Katie Morrow Sharp, Deceased, 47 Ala.App. 310, 253 So. 2d 760.
The writ was duly issued and the cause was submitted on May 18, 1971, upon the transcript and briefs, in lieu of oral argument. Supreme Court Rule 39, as amended.
After considering the opinion of the Court of Civil Appeals, in connection with the prolix and somewhat confusing petition for writ of certiorari and the briefs filed on behalf of the parties, we have felt constrained to go to the original record filed in the Court of Civil Appeals in an attempt to get a better understanding of the questions which we must consider. In Cranford v. National Surety Corp., 231 Ala. 636, 637, 166 So. 721, 722, we said in part as follows:
The opinion of the Court of Civil Appeals indicates that the record in this estate claim case, which might be expected to be simple, is indeed complex. We agree and after reviewing the record we are reminded of an observation made by Mr. Justice Harwood, writing for the court in another estate claim case, White v. Hilbish, 282 Ala. 498, 213 So. 2d 230. We quote:
The record in this case is not as large as was the record in the White case, supra, but the record here does contain two hundred and fifty pages, many of which are filled with complicated pleadings, which makes us appreciate fully the dilemma with which the Court of Civil Appeals was confronted in drafting the opinion here under review.
*771 This litigation originated in the Probate Court of Morgan County when Mrs. Boschung and Mrs. Garrison, in their capacities as administratrices of their deceased mother, Mrs. Sharp, filed a claim against the estate of their deceased uncle, T. J. Morrow, for room, board and personal attention which Mrs. Sharp was alleged to have supplied to her brother, T. J. Morrow.
Wayne Humphrey, as executor of the estate of T. J. Morrow, deceased, gave written notice to the claimants to the effect that their claim was disputed. § 216, Title 61, Code 1940, as amended.
The record shows that Mr. Humphrey, as executor of the Morrow estate, timely took an appeal "from the Order and Judgment of the Probate Court of Morgan County, Alabama, * * * allowing a portion of the Claim filed * * *" by Mrs. Boschung and Mrs. Garrison against the said Morrow estate.
We will sometimes hereinafter refer to Mrs. Boschung and Mrs. Garrison as the claimants and to Mr. Humphrey as the contestant.
The appeal was taken under the authority of § 216, Title 61, Code 1940, as amended and, therefore, was to the Circuit Court of Morgan County, where the cause was tried de novo before a jury, which returned the following verdict: "We, the jury, find for the claimants and fix the amount at $1,916.00." The Circuit Court thereupon rendered a judgment which in pertinent parts reads:
We do not construe that judgment to be a monied judgment. It appears to us to be in a form which complies with prior decisions of this court. We have said that the determination of a contest or claim filed against an estate as authorized by § 216, Title 61, supra, does not ordinarily lead to a monied judgment. Dodd v. Lovett, 282 Ala. 383, 211 So. 2d 799; Ex parte Zepernick, 259 Ala. 493, 66 So. 2d 757. Cf. Merchants Nat. Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So. 2d 122.
From the aforementioned judgment the contestant, Mr. Humphrey, appealed, assigning as error various rulings of the trial court and the action of that court in giving certain written charges requested by claimants.
The Court of Civil Appeals reversed the judgment of the Circuit Court of Morgan County because the trial judge gave claimants', appellees', written charges numbered 32, 34 and 36, and on no other ground. This review by certiorari followed the action of the Court of Civil Appeals in reversing the judgment of the Circuit Court of Morgan County.
As indicated in the opinion of the Court of Civil Appeals, the claim which was filed in the probate court was the claimants' initial pleading in the circuit court, the claimants not seeing fit to formalize the allegations in the claim into a complaint. The claim makes no reference to an express contract and it was apparently drafted to come within the principle of our cases to the effect that an implied agreement between near relatives to pay a reasonable sum for support may be inferred where the facts and circumstances are such that a mutual intent to pay and to receive pay for such services is a reasonable and just conclusion. Coleman v. Adkins, 232 Ala. 351, 168 So. 184, and cases cited. We have observed that in proceedings of this kind formal pleadings are not contemplated or practical. Norton v. Liddell, 280 Ala. 353, 194 So. 2d 514.
*772 Although claimants did not rely upon an express contract in their claim, the contestant in Pleas 2 and 3 pleaded the statute of limitations of six years applicable to a simple contract (§ 21, Title 7, Code 1940; Keel v. Weinman, 266 Ala. 684, 98 So. 2d 611; Marsh v. Southern Airways, Inc., 5 Cir., 316 F.2d 91), along with a plea of the statute of limitations of three years (§ 24, Title 7, Code 1940), applicable to open account claims for services rendered a deceased. Norton v. Liddell, supra.
The Court of Civil Appeals held that claimants' Charge 32 was so misleading and prejudicial to contestant, the appellant in that court, as to require a reversal.
The effect of the Court of Civil Appeals' holding is that Charge 32 is misleading in that it is abstract because it is hypothesized on the jury's being reasonably satisfied from the evidence that there was an express contract, although there was no evidence of a valid express contract.
An instruction based partly or entirely on a state of facts not appearing in the evidence has been held to be abstract. Pappas v. Alabama Power Co., 270 Ala. 472, 119 So. 2d 899; State v. Ingalls, 277 Ala. 562, 173 So. 2d 104; Allen v. Hamilton, 109 Ala. 634, 19 So. 903; Garrett v. Holloway, 24 Ala. 376.
This court has said that the giving of an abstract charge, one hypothesized on facts which had no support in the evidence, does not constitute reversible error unless it appears from the whole record that the charge did in fact mislead the jury to the appellant's prejudice. Robinson v. Crotwell, 175 Ala. 194, 57 So. 23; Locklear v. Nash, 275 Ala. 95, 152 So. 2d 421. See Blair v. St. Margaret's Hospital, 285 Ala. 636, 235 So. 2d 668; Knabe v. State, 285 Ala. 321, 231 So. 2d 887; Farr v. Blackman Plumbing & Heating Co., 267 Ala. 585, 103 So. 2d 777.
But this court has reversed where it has determined from an examination of the entire record that the jury was misled because of the giving of an abstract charge. Herring, Farrell & Sherman v. Skaggs, 73 Ala. 446; Beck v. State, 80 Ala. 1; Goldsmith & Davis v. McCafferty, 101 Ala. 663, 15 So. 244; Goldsmith v. State, 86 Ala. 55, 5 So. 480. See Lassetter v. King, 249 Ala. 422, 31 So. 2d 588.
As we have indicated above, the Court of Civil Appeals' conclusion that Charge 32 is misleading is grounded on its finding that there was no evidence of a valid express contract. We quote from the opinion of the Court of Civil Appeals:
We have not gone to the original record to examine the transcript of the evidence in order to evaluate the finding of the Court of Civil Appeals to the effect that the only evidence offered as to an express contract was the conversation which took place on a Sunday afternoon in May of 1959. To do so would run counter to the oft-stated rule to the effect that this court on certiorari to review an opinion and judgment of an intermediate appellate court does not review the evidence as contained in the record to determine for ourselves what were the facts of the case. We *773 act upon the finding of facts as made by the intermediate appellate court. Ex parte Thaggard, 276 Ala. 117, 159 So. 2d 820, and cases cited; Ex parte McCleney, 286 Ala. 288, 239 So. 2d 311; Ex parte Newbern, 286 Ala. 348, 239 So. 2d 792. In Ex parte Thaggard, supra, the then Court of Appeals held in effect that there was insufficient legal evidence to support the charge of false pretense. We refused to go to the transcript of the testimony to review that finding despite the insistence made in brief that "it certainly behooves this Court to review the entire testimony filed with the Court of Appeals." In Williams v. State, 222 Ala. 584, 585, 133 So. 737, it was said:
And in Brotherhood Ins. Co. v. Harris, 224 Ala. 28, 29, 138 So. 295, we said:
Nothing said in Ex parte Johnson v. State, 287 Ala. 524, 253 So. 2d 344, or in Tanner v. State, 259 Ala. 306, 66 So. 2d 836, was intended to impinge upon the established principle of review recognized and applied in the cases from which we have above quoted.
Moreover, a careful reading of the brief filed here on behalf of the petitioners, the claimants, indicates that they concede that the express contract upon which they rely was made on a Sunday afternoon.
Section 21, Title 9, Code 1940, as here pertinent reads: "All contracts made on Sunday, unless * * * in the execution, or for the performance of some work of charity, or in case of necessity, * * * are void."
The Court of Civil Appeals held that the exceptions of § 21, Title 9, supra, are not applicable to this case.
The petitioners, claimants, in their brief find fault with that holding of the Court of Civil Appeals.
First, they say, in effect, that such holding "necessarily assumed that it was incumbent upon the claimants, because their own evidence showed that the contract was made on a Sunday, to prove that the contract fell within one of the statutory exceptions," and that such an assumption was improper in that all that claimants had to prove, under their express contract replication, was the making of a contract and that the contestant in order to defeat recovery on a Sunday contract had to prove not only that the contract was made on Sunday but "that it was not made either for the performance of some work of charity or a case of necessity."
We cannot agree that the holding of the Court of Civil Appeals to the effect that the exceptions of § 21, Title 9, supra, were not applicable to this case was based on an erroneous assumption relative to the burden of proof and we see no reason to become involved on this review in a discussion of the burden of proof question.
Petitioners' other reason for finding fault with the holding of the Court of Civil Appeals presently under consideration is in substance that the statement in the original opinion that the exceptions in § 21, Title 9, are not applicable to this case and the following statement in the opinion delivered in response to application for rehearing, "In any event, it is our opinion that there was no evidence of a moral or physical *774 necessity giving rise to the Sunday contract which would bring it within the exceptions in the statute," are erroneous in that there was evidence which would have supported a finding by the jury that the contract was a work of charity or resulted from a "case of necessity."
We repeat what we have said above, that we are not going to the original transcript filed in the Court of Civil Appeals to review the evidence to determine whether or not the Court of Civil Appeals did err in its finding of fact relative to the absence of evidence to support a finding that the contract in question came within an exception enumerated in § 21, Title 9.
In the light of the evidence in the opinion of the Court of Civil Appeals as it relates to the express contract relied upon by claimants, we think the language hereafter quoted from Burns & Co. v. Moore & McGee, 76 Ala. 339, is appropriate in connection with claimants' assertion that there was evidence from which the jury could have found the contract to have been made in a "case of necessity."
We quote from the case last cited:
The word "charity" has been held to include everything which proceeds from a sense of moral duty, or a feeling of kindness to humanity, and is intended wholly for the purpose of the relief or comfort of another, and not for one's own profit or pleasure. Bucher v. Cheshire R. Co., 125 U.S. 555, 8 S. Ct. 974, 31 L. Ed. 795. Certain it is that the evidence referred to in the opinion of the Court of Civil Appeals does not support an inference to the effect that the contract upon which claimants rely was made wholly for the relief or comfort of Mr. Morrow. On the contrary, such evidence indicates that it was made for a purely mercenary reason, the exacting of money from Morrow for services previously rendered and to be rendered in the future.
In its opinion on original deliverance, the Court of Civil Appeals made no reference to claimants' Replication J, but in the opinion delivered in response to the application for rehearing the Court of Civil Appeals made the following observation concerning that replication:
The first paragraph quoted from the opinion on rehearing, as we understand it, purports to set forth the contention of claimants in regard to their Replication J. We do not know, of course, the exact contentions asserted in brief filed by claimants on application for rehearing, but in view of the briefs filed in this court on this phase of the case we are inclined to believe that claimants further contended that since the contestant, the appellant in the Court of Civil Appeals, was estopped by the proof of Replication J from claiming benefit of any statute of limitations, then the giving of Charges 32, 34 and 36 could not have worked any prejudice to the contestant. Certain it is that such is the assertion made in brief filed in this court.
The second paragraph which we have quoted above from the opinion of the Court of Civil Appeals delivered on rehearing seems to encompass two reasons why Replication J can afford no relief to claimants. The first reason seems to be that the averments of Replication J were insufficient to constitute an estoppel. In other words, the Court of Civil Appeals has in effect said that a demurrer should have been sustained to that replication, although no demurrer was interposed to that replication. The other reason is that set forth in the last sentence of said second paragraph to the effect that estoppel is a matter of law, not an issue for the jury.
The last sentence referred to above is not merely an oversimplification, but is incorrect if it was intended to convey the idea that estoppel is always a matter of law, not an issue for the jury. See Standard Oil Co. v. Gentry, 241 Ala. 62, 1 So. 2d 29; White v. Hogland, 209 Ala. 537, 96 So. 625; Lackland v. Turner, 207 Ala. 73, 91 So. 877. We think the correct rule is stated in 28 Am.Jur.2d, Estoppel and Waiver, § 149 beginning on p. 831, as follows:
We have seen fit to include the above quotation in this opinion because of the broad generality of the last sentence of the second paragraph quoted from the opinion delivered by the Court of Civil Appeals in response to the application for rehearing.
Our cases seem to be uniform to the effect that where the sufficiency of a plea or replication is not tested by demurrer, the court has nothing to do with it because parties have the right to try their causes on such issues as they choose and if the cause is tried upon an insufficient or immaterial plea or replication, without objection being first taken by demurrer, the judgment of the court should be pronounced in accordance with the result of the issues. Glass v. Meyer, Son & Co., 124 Ala. 332, 26 So. 890; Liverpool & London & Globe *776 Ins. Co. v. Tillis, 110 Ala. 201, 17 So. 672; Hawie v. Kelly, 256 Ala. 31, 53 So. 2d 609. In the case last cited we said:
The Court of Civil Appeals did not come to the question as to whether or not averments of Replication J were proved and again, we are not going to the original record to make such a determination.
Assuming arguendo that the averments of that replication were proved, the claimants would have been entitled at best to an affirmative instruction in their favor relative to the issue raised by Pleas 2 and 3, namely, the statute of limitations of six years.
If it be assumed that contestant was estopped from claiming the benefit of the statute of limitations of six years, it does not follow that the giving of claimant's Charge 32 was therefore innocuous. Plea 1, which raised the statute of limitations of three years, was not affected by Replication J and yet Charge 32 was found by the Court of Civil Appeals to have worked to the prejudice of the contestant because it was so drafted as to mislead the jury into the belief that it could return a verdict in favor of the claimants in an amount in excess of that which claimants were entitled to recover because of the limitation prescribed by the statute of limitations of three years as set up in Plea 1.
We conclude, therefore, that the Court of Civil Appeals did not err in holding that the Circuit Court of Morgan County erred to a reversal in the giving of claimants' Charge 32.
In view of what we have said above relative to claimants' Charge 32, we hold that the Court of Civil Appeals did not err in holding that the trial court erred in giving claimants' requested Charge 34.
Charge 36 does not relate to a statute of limitations. Instead, upon the hypothesization of the jury's being reasonably satisfied from the evidence that there was an express agreement, that charge concludes that there was no presumption that the services rendered under the agreement were rendered gratuitously.
We see no need to discuss Charge 36 in view of the fact that we are in agreement with the holding of the Court of Civil Appeals that the judgment of the Circuit Court of Morgan County must be reversed because of the giving of Charges 32 and 34.
The judgment of the Court of Civil Appeals is affirmed.
Affirmed.
MERRILL, HARWOOD, MADDOX and McCALL, JJ., concur. | September 30, 1971 |
8a454e20-c2ce-4f34-a82c-364dd96aa907 | Ex parte Key Vashaun Pruitt. | N/A | 1200015 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1200015
Ex parte Key Vashaun Pruitt. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Key Vashaun Pruitt v. State
of Alabama) (Chambers Circuit Court: CC-18-184; Criminal Appeals :
CR-19-0633).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
10ec39bf-5a0b-4513-a08f-c82a083ffa4a | Hogan v. Allstate Insurance Company | 255 So. 2d 35 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 35 (1971)
Mary HOGAN et al.
v.
ALLSTATE INSURANCE COMPANY, a Corporation.
6 Div. 621.
Supreme Court of Alabama.
August 12, 1971.
Rehearing Denied December 16, 1971.
*36 Coleman & Hancock, Birmingham, for appellants.
Lange, Simpson, Robinson & Somerville, and Lyman H. Harris, Birmingham, for appellee.
HEFLIN, Chief Justice.
This is an appeal from an adverse decree of the Circuit Court of the Tenth Judicial Circuit, Jefferson County, Alabama, in Equity, on appellant's bill for a declaratory judgment.
The facts were stipulated by the parties and the pertinent ones follow.
Appellee (respondent in the court below) Allstate Insurance Company, a Corporation (hereinafter Allstate), issued an automobile liability insurance policy to appellant Ivan Hogan on June 26, 1964. The policy contained uninsured motorist protection for which appellant Ivan Hogan paid a premium. Appellant Mary Hogan was an insured under this policy. Said policy was in effect on September 3, 1966.
One Nathan Speegle was an insured under a policy issued by State Farm Mutual Automobile Insurance Company, a Corporation (hereinafter State Farm), on a 1963 Falcon automobile. The State Farm policy contained uninsured motorist protection in the amount of $10,000 per person and $20,000 per accident.
Appellant Mary Hogan was, on September 3, 1966, a passenger in an automobile owned by Nathan Speegle and operated at that time by his daughter, Elaine Speegle, when said automobile was involved in a collision with a 1965 Chevrolet operated at that time by one Paul William McCay, thereby proximately causing injuries to appellant Mary Hogan.
Appellants, by and through their attorney, notified State Farm and Allstate of the accident. Appellants offered to provide both insurance companies with evidence indicating they were entitled to recover under the uninsured motorist protection in the policies, as well as evidence that the operator of the 1965 Chevrolet, McCay, was uninsured. However, Allstate denied coverage by letter, a copy of which was attached to the bill. Appellants did furnish such information to State Farm, which insured the Speegle automobile, and State Farm subsequently settled with appellants for the sum of $4,500 and received a pro tanto release of its obligations under the policy. *37 Appellant Ivan Hogan, Mrs. Hogan, and appellant Mary Hogan signed an "Indemnifying Release and Trust Agreement" for State Farm.
Thereafter, appellants filed suits against the uninsured motorist, McCay, in the Circuit Court of Jefferson County, Alabama, Bessemer Division. Appellant Mary Hogan, as a minor, sued by her father and next friend, Ivan Hogan, and obtained a judgment after hearing for $15,000. Appellant Ivan Hogan sued McCay for his damages and obtained a judgment for $1,365.20. Allstate was not given notice of either of the suits, nor were copies of the summonses and complaints served on Allstate. Thereafter, appellants executed a pro tanto release to the uninsured motorist, McCay, for the sum of $1,500 for the claims of the Hogans and the Speegles. Under the terms of the release, the Hogans were to receive a total of $750.00 in monthly installments. At the time of the filing of the bill for declaratory judgment, a portion of this amount had been received by the appellants.
In its letter dated November 2, 1966, Allstate, through its Casualty Supervisor, R. T. Waggoner, in answer to appellants' request for coverage, stated its position as follows:
* * * * * *
It is readily apparent that the sole and only basis upon which Allstate denied coverage in its letter to counsel for appellants, dated November 2, 1966, was the "excess escape clause" and "other insurance provisions" contained in the policy, to-wit:
In its decree, the lower court found that the aforequoted "Other Insurance" clause applied to the facts presented; that the coverage provided by the Allstate policy applied only as "excess" insurance over any similar insurance available to the insured; that the coverage provided by the Allstate policy should not be given effect until the limits of the State Farm policy had been exhausted; that the limits of the two policies were the same; and that, therefore, the Allstate policy would not apply to the fact situation presented.
Subsequent to the rendering of the decree by the lower court, this Court decided Safeco Insurance Company v. Jones, 286 Ala. 606, 243 So. 2d 736, a case involving the particular issue in question in the case under review. In Safeco, supra, this Court stated as follows:
What this Court said in Safeco, supra, is equally applicable to the facts presented herein, and requires that the decree of the lower court be reversed.
Also see State Farm Mutual Automobile Insurance Company v. Cahoon, 287 Ala. 462, 252 So. 2d 619, May 13, 1971.
In briefs, appellee sets forth and argues certain contentions, stating in essence that even if appellants should prevail in their argument that the Allstate policy is applicable in satisfaction of actual damages sustained by the appellants, recovery should nevertheless be denied for the reasons set forth. Since the lower court's decree does not mention these matters, but denied relief on specific grounds heretofore mentioned, this Court construes that the lower court did not rule upon the issues presented by appellee in this regard. This is a court of appellate jurisdiction, with few exceptions, and this court is not disposed to pass on questions upon appeal not considered or decided by the trial court. City of Birmingham v. Wheeler, 225 Ala. 678, 145 So. 140; Penn Mut. Life Ins. Co. v. State, 223 Ala. 332, 135 So. 346.
The decree of the lower court is due to be reversed and the cause remanded. It is so ordered.
Reversed and remanded.
SIMPSON, HARWOOD, MADDOX and McCALL, JJ., concur. | August 12, 1971 |
e88845d4-4611-412b-8088-2a8104d357e4 | Ex parte Tonya L. Watkins. | N/A | 1200276 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1200276
Ex parte Tonya L. Watkins. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CIVIL APPEALS (In re: Tonya L. Watkins v. Lashiela
Chambers) (Montgomery Circuit Court: CV-19-44; Civil Appeals :
2190398).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 19, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of March, 2021.
Clerk, Supreme Court of Alabama | March 19, 2021 |
73426230-ada8-4021-8739-9f3bea922581 | Ex parte T&H Mitchell Properties | N/A | 1200455 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
May 14, 2021
1200455
Ex parte T&H Mitchell Properties (Delaware), LLC, and T&H Mitchell
Properties, LLC. PETITION FOR WRIT OF CERTIORARI TO THE COURT
OF CIVIL APPEALS (In re: T&H Mitchell Properties (Delaware), LLC, and
T&H Mitchell Properties, LLC v. Ronnie Smith) (Elmore Circuit Court:
CV-18-900404; Civil Appeals :
2190779).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on May
14, 2021:
Writ Denied. No Opinion. Bolin, J. -
Parker, C.J., and Shaw, Sellers, and
Stewart, JJ., concur. Wise, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 14th day of May, 2021.
Clerk, Supreme Court of Alabama | May 14, 2021 |
bc944d57-68bf-4664-b9ed-19c25fc44d7b | Security Trust & S. Bank v. Marion County Bank. Co. | 253 So. 2d 17 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 17 (1971)
SECURITY TRUST AND SAVINGS BANK, etc., et al.
v.
MARION COUNTY BANKING COMPANY, etc., et al.
6 Div. 842.
Supreme Court of Alabama.
September 30, 1971.
*18 Thomas, Taliaferro, Forman, Burr & Murray and John D. Clements, Nelson Vinson, Hamilton, Birmingham, for appellants.
Fite, Davis & Fite, Hamilton, for appellees.
McCALL, Justice.
One of the appellants, Security Trust and Savings Bank of Brilliant, Marion County, Alabama, filed a bill in equity under the Declaratory Judgment Act, Tit 7, § 156 et seq., Code of Alabama, Recompiled 1958, to have determined the legality and permissibility of a plan by the appellee, Marion County Banking Company (the Bank), to establish a branch bank in the town of Addison, Winston County, Alabama, and subsequently, branches in other counties throughout the State of Alabama for transacting the banking business. Sixteen other banks were granted leave to intervene in the suit as party complainants. The chancellor of the Marion County Circuit Court decreed that the appellee Bank has such right. From that final decree, the appellants prosecute the present appeal. The appellants' three assignments of error raise the single issue of the legality of the Bank's plan.
The appellee Bank was incorporated under the name, "Bank of Guin," on June 28, 1905, and in 1908, its name was changed to Marion County Banking Company. The third paragraph of its certificate of incorporation provides:
Act No. 76, Acts of Alabama, Regular Session, 1955, p. 314, codified as Tit. 5, § 125(1), Code of Alabama, Recompiled 1958, (Act No. 76 or Tit. 5, § 125(1)) prohibits branch banking, notwithstanding the provisions of any general laws of local application which may become applicable to any county by any future decennial census, but provides:
The appellees contend that Marion County Banking Company has continually had the charter power, from the date of its incorporation to the present date to establish branches in any county in the state for the transaction of the banking business, and, that from the date of its incorporation as Bank of Guin, on June 28, 1905, to March 2, 1911, Marion County Banking Company, through its predecessor, Bank of Guin, had statutory authority to establish branch banks in any county in the State of Alabama. Thirty days after March 2, 1911, Act No. 84, Acts of Alabama, General and Local, 1911, p. 50, now Tit. 5, § 125, Code of Alabama, 1940, (Act No. 84 or Tit. 5, § 125) became effective. Section 28 of this law provides:
The appellees argue that, having the charter power continuously to the present date, Act No. 84, supra, did not take away *19 this power, and with the passage of the above mentioned Act No. 76, Tit. 5, § 125 (1), Code, Marion County Banking Company's statutory authority to establish branch banks in any county was reinstated in 1955, because that Act provides:
Therefore, the appellees insist that the Bank is not prohibited by the statutes from exercising its power to establish branches in any county in the state for the transaction of the banking business.
The appellee Bank was incorporated under existing laws in 1905, namely, Act No. 395, Acts of Alabama, General and Local, 1903, p. 310, (Act No. 395) which is entitled "To confer and limit the powers of business corporations and to provide for their organization and regulation." This Act provides, in § 2(b), that the certificate of incorporation shall set forth the object or objects for which the corporation is formed, and, in § 2(c), the location of the corporation's principal office in this state.
In Act No. 395, § 16, p. 324, the powers of a banking corporation are expressly provided for and branches or offices for the transaction of the banking business in other counties in the state is not one of them. Neither does the Act provide that banks, organized thereunder, shall have and exercise the powers conferred by law on corporations generally except as limited or modified by the incorporation statute.
Act No. 395 provides, in § 2(j) thereof, that the certificate of incorporation may also contain any other provision which the incorporators may choose to insert for the regulation of the business and for the conduct of the affairs of the corporation, creating, regulating and defining the powers of the corporation, the directors and stockholders, or any class or classes of stockholders; provided, that such provisions be not inconsistent with the Act. However this authorization, extended in the formation of corporations generally, is proscribed by the subsequent § 16 of the Act, which expressly provides what powers a corporation, formed for the purpose of carrying on the business of banking, may engage in, and branch banking is not among those powers. Further, § 22 of the same Act provides that no corporation, other than corporations formed for the purpose of carrying on the business of banking or trust companies doing a banking business, shall engage in or carry on the business of banking in this state. In connection with this provision, § 2(j) of Act No. 395, attention is directed also to § 25 of the Act, which enacts in substance, that all corporations formed to carry on any private enterprise or enterprises, excepting banking, insurance, and building and loan companies, may engage in business as natural persons may, and may exercise all such powers as are expressed in the certificate of incorporation, if not inconsistent with any provision of this Act or of the Constitution of this state.
We conclude that the legislature, by enacting this legislation, intended to and did draw a distinction between general or ordinary business corporations and those formed for the purpose of carrying on the business of banking, expressly limiting their powers to those set forth in § 16 of Act No. 395, and those which by implication are incidental thereto.
The Code of Alabama, 1887, Tit. 1, Private Corporations, Chap. 1, Banks and Banking, § 1525(4), Powers of Corporation, makes no mention of branch banking. It provides that such corporation, when organized, has power to appoint such officers and agents as the business of the corporation requires, removing them at pleasure, prescribe their duties, and fix their compensation. In the succeeding Code of Alabama, 1896, Chap. 28, Corporations, Article 1, Banks and Banking, there is an addition to the statute, § 1525(4), of the Code *20 of 1887, so that the corresponding § 1089 (4) in the Code of 1896, reads as follows:
Thus was added to § 1525(4), Code of Alabama, 1887, by the amending Act No. 3, Acts of the General Assembly of Alabama, 1892-93, p. 7, the portion which is italicized above; and, the statute as amended appeared as § 1089(4), as quoted above, in the Code of Alabama, 1896.
Later, Act No. 395, approved October 2, 1903, providing a general and uniform law for the organization and regulation of all classes of business corporations, brought about a complete revision and consolidation of earlier Alabama corporation statutes. This Act omitted the former express provision, authorizing branch banking, that is a part of § 1089(4), Code of 1896, which states:
The appellee banking corporation was formed therefore under the general statute, Act No. 395, Alabama City, G. & A. Ry. Co. v. Kyle, 202 Ala. 552, 81 So. 54, which took the place of and repealed the provision of former Code § 1089(4), Code of 1896, expressly authorizing branch banking. Parts of an Act of the legislature which are omitted from that which is a complete revision of the law on the subject are annulled and repealed. American Standard Life Ins. Co. v. State, 226 Ala. 383, 147 So. 168; Allgood, Auditor v. Sloss-Sheffield Steel and Iron Co., 196 Ala. 500, 71 So. 724.
There was therefore no express statutory law in existence, when the appellee corporation was formed, authorizing the Bank to fix and locate offices, agents and agencies at pleasure in the state. That provision had been removed from the statutes of the state by Act No. 395. The status, in this respect, in which the law then existed, had reverted to that found in § 1525(4), Code of Alabama, 1887, which likewise gave no express statutory authorization or power to a banking corporation to establish branch banks or offices at places other than at the location of the principal place of business for transacting the banking business.
In the preparation of the certificate of incorporation, under Act No. 395, the incorporators of the appellee Bank set forth that the location of the principal office of the corporation was at Guin, Alabama, and added: "* * * but it may have branch offices authorized to transact business in any County in the State of Alabama." As stated, Act No. 395 provides no express authority for such action, or a grant of such power to a corporation, formed thereunder to engage in branch banking; and consequently, the appellee Bank acquired none under Act No. 395, unless such authority arose as a necessary incident to the incorporation.
The corporation is an artificial being of legislative creation, having no powers or properties, other than the law confers on it, or which may be incidental to its very existence. There is no authority of law for introducing more into the certificate of incorporation, than is given by the law, and if more is introduced, it is mere surplusage, not adding to, or detracting from the force of the certificate. Grangers' Life and Health Insurance Company v. Kamper, 73 Ala. 325; Sheldon v. Birmingham Building & Loan Association, 121 Ala. 278, 25 So. 820; Fairhope Single Tax Corp. v. Melville, 193 Ala. 289, 69 So. 466.
Commenting on this point, the court in Grangers' Life and Health Insurance Company v. Kamper, supra, 73 Ala. at 342, said:
The appellees concede that unless provided by statute, a bank has no right to establish and maintain branch banks. They argue however, that for the right to exist, it need not be "expressed" by statute, but if any other type of corporation could so act under the provisions of the General Incorporation Act, Act No. 395, so could a banking corporation, because no distinction was made in this regard prior to § 28 of Act No. 84, General Acts, Alabama, 1911, p. 50, which is now codified as Tit. 5, § 125, Code of Alabama, Recompiled 1958, and provides:
We disagree with the appellees' contention that if other types of corporations can locate offices, agents and agencies in the state other than at the principal place of business, it follows that a banking corporation can do a branch banking business. Banks stand in the intimate relation of a fiduciary to those who are their customers, depositors, stockholders, and associate banks, as well as the public generally, whose members are affected by their operation. Ordinary corporations handle their own money, but banks handle the money of other individuals. They are quasi-public corporations by nature, subject to regulation and supervision by the state. McDavid v. Bank of Bay Minette, 193 Ala. 341, 69 So. 452; Ex parte Tennessee Valley Bank, 231 Ala. 545, 166 So. 1; Michie, Banks and Banking, Vol. 1, Chap. 1, § 3. Therefore, banks are not entitled to the same freedom of operation that ordinary corporations are privileged to engage in. Banks are created for a more limited and special purpose than corporations for the conduct of ordinary business, 9 C.J.S. Banks and Banking § 41, p. 79, and no rational criteria can be drawn, corollating the powers of a general corporation to those of a banking corporation.
Branch banking is not, in our opinion, a necessary incident to the business of banking. It may be desirable, but it is not needed in order to carry on a banking business.
*22 In Bruner v. Citizens' Bank, 134 Ky. 283, 120 S.W. 345, 349, it is held that in the absence of express legislative authority, the power of a state bank to establish a branch does not follow by implication as a reasonable or necessary incident to the right to do a banking business. The court said:
In First National Bank in St. Louis v. State of Missouri, 263 U.S. 640, 659, 44 S. Ct. 213, 216, 68 L. Ed. 486, the court said:
There are two other points that are significant in this case. The first is that the legislature at one time expressly provided for multi-county branch banking under § 1089(4), Code of 1896, and then, by enacting Act No. 395 in 1903, deleted that power or authority from the General Incorporation Law; and second, since the passage of Act No. 84, in 1911, the legislature has enacted legislation, local or general of local application, in each instance where branch banking has been established, limiting that authority in scope, however, to county bounds, and not crossing county lines. This course of action, on the part of the lawmakers of the state, is strong indication that that governmental body, at least, regards authority to branch bank as a subject to be dealt with by express legislation, and not one to be implied as a necessary incident to the banking business. This of itself deserves our consideration in reaching a decision in this case.
If the provisions of Act No. 76, prohibiting branch banking, are inapplicable to Marion County, because branch banking is or has been authorized there, that would leave conditions in the same status as before the enactment of Act No. 76the Act having no application where branch banking is or has been authorized. If the Act has no application in the county, then the Act cannot reinstate or establish a right in the appellee Bank to branch bank in other counties. The Act does not undertake to authorize branch banking across county lines, because multi-county branch banking may, at one time, have been authorized in the county. The Act states that its provisions of prohibition against branch banking, do not apply, if branch banking has been authorized in the county. Under such conditions, Act No. 76 neither gives the right, nor takes it away. It is simply inapplicable. That being the case, since the appellee has never been authorized or given power to branch bank across county lines, Act No. 76 did not reinstate or establish this power in the appellee Bank.
The trial court erred in holding that the appellee Marion County Banking Company had the power and authority to establish a branch to transact a banking business in the town of Addison, Winston County, Alabama, and to establish branch banks in any other county in the state. For the errors stated, the final decree of the trial court is reversed and the case is remanded to that court.
Reversed and remanded.
HEFLIN, C. J., and SIMPSON, MERRILL and COLEMAN, JJ., concur. | September 30, 1971 |
1e153b10-20b6-4fd7-86d7-b25037b5e09d | Glenn I. Mazer v. DM California Holdings, Inc., and Omni Recovery Service of Alabama, Inc. | N/A | 1190704 | Alabama | Alabama Supreme Court | Rel: March 12, 2021
STATE OF ALABAMA -- JUDICIAL DEPARTMENT
THE SUPREME COURT
OCTOBER TERM, 2020-2021
1190704
Glenn I. Mazer v. DM California Holdings, Inc., and Omni Recovery
Service of Alabama, Inc. (Appeal from Shelby Circuit Court:
CV-19-900668).
BRYAN, Justice.
AFFIRMED. NO OPINION.
See Rule 53(a)(1) and (a)(2)(F), Ala. R. App. P.
Parker, C.J., and Shaw, Mendheim, and Mitchell, JJ., concur. | March 12, 2021 |
1c29ac4f-639d-474f-8cd8-daaa6d4cf597 | Cambron v. Kirkland | 253 So. 2d 180 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 180 (1971)
Minnie Louise K. CAMBRON et al.
v.
Charles KIRKLAND, Jr., et al.
8 Div. 429.
Supreme Court of Alabama.
September 23, 1971.
Lusk & Lusk, Guntersville, for appellants.
J. S. Stone, Guntersville, for appellees.
BLOODWORTH, Justice.
This is a boundary line dispute between coterminous landowners. From an adverse decree fixing the boundary line, complainants appeal.
On August 21, 1969, complainants filed a bill of complaint against Charles Kirkland, Jr., and his wife, Geraldine Kirkland, alleging as follows: that complainants own the East half of the NE ¼ of the NW ¼ of Section 29, Township 6, Range 3 East, in Marshall County, Alabama; that respondents own the ten acres adjoining on the West, being the East half of the West half of the same NE ¼; that the true boundary line between these two contiguous tracts is the line which divides the East half from the West half of the same NE ¼; that complainants' survey locates this line; that respondents Kirkland claim that their boundary line is located on complainants' property some 40 feet East of *181 the true boundary line; that the respondents have taken possession of this disputed strip and have erected a shed on it; and, that the court should fix the true boundary line as complainants allege it to be and require respondents to remove their shed.
The testimony of the witnesses was taken by written depositions before the Register. On July 20, 1970, the cause was submitted to the trial court. On February 17, 1971, a final decree was rendered by the court fixing the boundary line substantially as contended for by the respondents. Though the trial court's decree stated that the complainants' survey correctly fixed the line between the East half and the West half of the said NE ¼, nevertheless, the court found that respondents had established title by adverse possession to the South half of the disputed strip. The following surveyor's map, which was introduced into evidence, may assist in an understanding of this case.
Specifically, the trial court fixed the true boundary line as follows:
"Commence at a point on the North line which is equil-distance [sic] from the Northeast and Northwest corners of the Northeast Fourth of the Northwest Fourth of Section 29, Township 6 South, Range 3 East, in Marshall County, Alabama; thence South 665 feet and parallel with the East line and West line of said land; thence East 54 feet to the turnrow or ditch; thence South along said turnrow or ditch 665 feet to the South boundary of said land, and parallel with the East and West boundaries of said land."
While the trial judge, in fixing the boundary line, based his decree on his finding that respondents had acquired a portion of the disputed strip by adverse possession, he also found that the drainage ditch or turnrow boundary line had been regarded as the line between the parties and their predecessors in title for a period exceeding the prescriptive period of twenty years.
In view of the fact that this cause was submitted on depositions, the trial *182 court's decree comes to us unclothed with any presumption of correctness as to his conclusions on the facts. Lay v. Phillips, 276 Ala. 273, 161 So. 2d 477 (1964). Therefore, "we must sit in judgment on the evidence." Henslee v. Merritt, 263 Ala. 266, 82 So. 2d 212 (1955); Machen v. Wilder, 283 Ala. 205, 215 So. 2d 282 (1968).
Being mindful of this duty, we have carefully read and reviewed the evidence, particularly that part which relates to the trial court's finding that respondents had acquired title to the disputed strip by adverse possession.
It appears the entire NE ¼ of the NW ¼ of Section 29, a forty acre tract, was once owned by one Mile Kirkland, father of complainant Minnie Louise K. Cambron, and grandfather of respondent Charles Kirkland, Jr. In 1939, Mile's son Charlie Kirkland purchased the twenty acres comprising the West half of the tract from his father. According to the testimony the forty acre tract was surveyed twice, once in 1940, and later in 1941, by a surveyor from Huntsville, Alabama. The survey in 1941 was paid for by Charlie Kirkland and, according to his testimony, was for the purpose of determining the line between him and his father. As a result of that survey he testified that a boundary line was established between the two tracts which was marked by a turnrow or ditch which he and Woody Cambron, the deceased husband of the complainant Minnie Louise K. Cambron, plowed out. Complainant Minnie Louise K. Cambron, the daughter of Mile Kirkland, together with her husband Woody Cambron and their family, lived on the East twenty acre tract with Mile Kirkland. In 1947, Mile Kirkland deeded this twenty acre tract (the East half of the forty) to the complainant Minnie Louise K. Cambron and her husband on the condition that he (Mile Kirkland) be allowed to live with them until his death. Both Mile Kirkland and Woody Cambron are now deceased. On April 22, 1959, Charlie Kirkland sold that half of his twenty acres which is contiguous to the complainants' property to his son, Charles Kirkland Jr., and wife, the respondents. At that time the property was planted in corn up to the turnrow. That same November Charles began building a house on his property. The house was completed in March, 1960. The lawn was seeded before the house was completed and it extended over onto the disputed tract up to the turnrow. In 1962 Charles built a shed and driveway on the disputed strip. From 1963 to 1965 he maintained a hog lot and pasture on the disputed tract. In connection with the hog lot he erected a fence which ran along the turnrow. The fence was taken down either in 1964 or 1965. In 1969 a dispute over the boundary line arose between Charles Kirkland, Jr., and his aunt complainant Minnie Louise K. Cambron. As a result of the dispute Minnie Louise K. Cambron hired James B. Carlton, a professional surveyor, to run the property lines. Carlton determined that the correct line dividing the 40 acre tract into two equal halves ran some 54 feet West of the turnrow or ditch and that most of the Kirklands' lawn, the driveway to the shed, and the shed itself were all on complainants' property.
It is a well established general principle of law that title to land may be acquired by adverse possession provided, that for a period of ten years preceding commencement of the action, the claimant has held hostile possession of the land under a claim of right that was actual, exclusive, open, notorious and continuous. Knight v. Hunter, 155 Ala. 238, 46 So. 235 (1908); Wiley v. Wilson, 284 Ala. 614, 227 So. 2d 128 (1969).
This court has also said:
We are of the opinion that the evidence indicates that the requirements of adverse possession have been met in this case. Respondents bought their ten acre tract on April 22, 1959. The testimony shows that following their purchase, they maintained possession of the disputed strip by cultivation of a crop of corn which extended up to the turnrow. Cultivation of the land is a sufficient possessory act to meet the requirements of adverse possession. Withers v. Burton, 268 Ala. 365, 106 So. 2d 876 (1959). After the corn was harvested respondents started their house and planted a lawn on the disputed strip up to the turnrow. The testimony reveals that from that time until the present, respondents have mowed and otherwise maintained the lawn on part of the disputed strip. Additionally, respondents cultivated some crops on a part of the disputed land. They have for several years maintained a pasture and hog lot and have erected a shed on the strip with a driveway leading thereto. Respondents' possession of the strip from the time they acquired the property on April 22, 1959 continued until complainants filed this suit on August 21, 1969, a period in excess of the ten year statutory requirement. Respondents have also, according to our view of the evidence, presented substantial proof of the other requirements of adverse possession.
We have therefore concluded that the trial court's decree is correct and that it should be affirmed.
In view of this conclusion we need not determine whether the evidence was sufficient to sustain the trial court in its finding that the turnrow or ditch boundary line had been regarded as the line between the parties and their predecessors in title for over twenty years.
Affirmed.
HEFLIN, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur. | September 23, 1971 |
86367bd2-0fa0-434e-9636-1eae33fc52ab | Langford v. Broussard | N/A | 1190623 | Alabama | Alabama Supreme Court | Rel: May 21, 2021
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, 2020-2021
_________________________
1190623
_________________________
Ann Langford
v.
Harriett Broussard
Appeal from Hale Circuit Court
(CV-17-900065)
STEWART, Justice.
Ann Langford appeals from a judgment entered by the Hale Circuit
Court ("the trial court") in favor of Harriett Broussard regarding the
1190623
administration of an estate and the sale and division of real property. For
the reasons discussed below, we affirm the judgment.
Facts and Procedural History
Mary Walker Taylor ("the mother") died in January 1998 leaving a
will ("the will") that appointed two of her daughters, Ann and Harriett, as
coexecutors of the will and provided, in pertinent part:
"TWO: I have intentionally omitted my beloved daughter,
Mary Elizabeth Taylor, from taking under this will for I have
done for her during my lifetime and I know that my family will
not let her suffer.
"THREE: I give, devise and bequeath all of my property,
both real, personal and mixed of which I die seized and
possessed or to which I may be entitled to at the time of my
death equally unto my two daughters, Harriet K. Taylor and
Ann Taylor Langford, in fee simple absolutely.
"Should one of my said daughters predecease me, or
should we die in a common disaster then the deceased
daughter's share hereunder to her child or children, per
stirpes, and if she has no child or children then to the survivor
of my said daughter in fee simple absolutely."
(Emphasis in original.)
In February 1998, Harriett and Ann filed in the Hale Probate Court
("the probate court") a petition to probate the will. Harriett, Ann, and
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Mary Elizabeth Taylor, Ann and Harriett's sister who had been omitted
from the will, filed a waiver of notice in which they each accepted service
of notice of the filing of the petition for the probate of the will and waived
further notice of the proceedings. The probate court admitted the will to
probate. Thereafter, according to the materials in the record, it does not
appear that any other action was taken in the probate court with respect
to the administration of the estate.
Almost 20 years later, in October 2017, Harriett filed a petition in
the trial court to, among other things, remove the administration of the
estate from the probate court to the trial court. In her petition, Harriett
also sought either the sale for division of certain real property pursuant
to § 35-6-59 et seq., Ala. Code 1975, or, if the trial court determined that
any of the real property was "heirs property," the partition by sale of the
heirs property, pursuant to § 35-6A-1 et seq., Ala. Code 1975, the Alabama
Uniform Partition of Heirs Property Act. The trial court entered an order
pursuant to § 12-11-41, Ala. Code 1975, removing the administration of
the estate from the probate court. Ann filed an answer to the petition in
which she denied that the real property could not be equitably partitioned
3
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and in which she asserted that the certain real property could not be sold
or divided because Harriett had failed to join one or more indispensable
parties (i.e., Harral Landry and George Landry1).
The action involved four parcels of real property: (1) approximately
1,358 acres in Hale County, containing pastureland and timberland,
jointly and equally owned by Harriett and Ann ("the farm property") ; (2)
a house and land on Tuscaloosa Street in Greensboro jointly and equally
owned by Harriett and Ann ("the Tuscaloosa Street property"); (3) a parcel
consisting of approximately 505 acres and subject to a lease with
Weyerhaeuser Corporation of which Ann owned a 25% interest, Harriett
owned a 25% interest, and Harral Landry and George Landry each owned
a 25% interest ("the Weyerhaeuser property"); and (4) a property referred
to by the parties as the Main Street Commercial Building, of which
Harriett owned a 25% interest and Ann owned a 75% interest ("the
1Both Harral Landry and George Landry were eventually added as
defendants to the action and later dismissed from the action by
agreement.
4
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commercial property"). The trial court appointed Robbie Hoggle to survey
the properties and Calvin Perryman to appraise the properties.
The trial court held a hearing on January 22, 2018, after which the
parties submitted briefs regarding their positions on the division of the
estate property. In her brief, Ann argued that a portion of the proceeds
from the mother's estate should be set aside to care for Mary. Ann
asserted in her brief that the mother had not left anything to Mary
because it would have affected government assistance that Mary received
and that, as a result, the mother had left everything to Ann and Harriett
for them to care for Mary. In her brief, Harriett argued that the mother
had intentionally disinherited Mary and that Mary was not entitled to a
portion of the mother's estate.
In November 2018, the trial court entered an order finding that all
four parcels of property constituted heirs property and noting that the
appraisal of the properties had been filed with the court. Ann filed a
notice that she disputed the accuracy of the appraisal of the farm property
and requested a hearing for the trial court to set the value of that
property. Ann asserted, among other things, that Perryman had failed to
5
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take into account varying soil conditions of the farm property and had
failed to consider comparable sales in determining the value of the farm
property. Ann stated that she had hired a different appraiser, Bobby
Moorer, who would provide a report supporting her assertions.
The trial court held a hearing on April 5, 2019, to determine the
value of the farm property. Ann called Moorer, who testified that he
valued the farm property at approximately $3,093,000. According to
Moorer, he had valued the bare land at $2,473,700, using the value of
comparable properties, and then had added the value of the timber and
the value of an improvement on the farm property. Moorer testified that
he had valued the timber at $584,775 based on an appraisal by Tony
Logan, a registered forester. Moorer acknowledged that Perryman had
valued the timber at $152,178 in his appraisal. Moorer testified that he
had assigned a value of $2,277.61 per acre to the farm property.
Tony Logan, the registered forester, testified that the farm property
contained 288 acres of merchantable timber and 49 acres of pre-
merchantable timber. Logan acknowledged that Hunter Brown, the
forester used by Perryman, had determined that there were 323 acres of
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timberland and that 48 acres contained pre-merchantable timber. Logan
also acknowledged a discrepancy in the values he and Brown had assigned
for the timber, and he testified that their difference of opinion regarding
how many acres contained merchantable and pre-merchantable timber
could account for that discrepancy. Brown also testified, and he could not
explain the discrepancy between his value and Logan's value, but he
acknowledged that values were based on individual opinions and that they
could vary.
Perryman testified, but neither party asked many questions about
his appraisal of the farm property. He testified that, even though a creek
prevented easy access to the timber on the farm property, a buyer would
find a way to get the timber out because of its high value. Perryman was
also asked about one comparable property that he had used in valuing the
farm property, and he testified that it was sufficiently comparable in size.
On May 6, 2019, the trial court entered an order setting the value of
the four parcels of property. The trial court found, in pertinent part:
"The parties presented such evidence as they desired at
the hearing and the Court, after considering the Court-ordered
7
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appraisal and the other evidence of value offered by the
parties, concludes as follows:
"The total value, assuming sole ownership of the fee
simple estate in accordance with [§] 35-6A-6(d), [Ala. Code
1975,] is as follows:
"Parcel One, referred to by the parties as Taylor
Farm Tract - $3,500,000.00
"Parcel Two, referred to by the parties as the
Weyerhaeuser Property - $435,482.00
"Parcel Three, referred to by the parties as the
Main Street Commercial Building - $165,121.00
"Parcel Four, [on] Tuscaloosa Street - $54,000.00
"....
"As to the Farm, Mr. Perryman appraised the Farm at
$3,500,000 and [Ann] hired Mr. Moorer and he appraised the
Farm at $3,092,975. It is significant that the foresters hired by
each had different values for the timber. However, even if the
Court uses Mr. Moorer's value of the timber, there is still an
issue with Mr. Moorer's appraisal of the bare land.
"Mr. Moorer's appraisal of the Farm was based upon
three components. First, he appraised the bare land and added
to that the value of the timber and the value of improvements.
He appraised the bare land at $2,473,700 and, based upon
1,358 acres, that is a per acre value for the bare land of
$1,821.57.
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"However, he used the comparable sales approach in
appraising the bare land and he adjusted the per acre values
of the comparable sales to make sure that, as he testified, [he]
compared 'apples to apples.' However, the average adjusted
per acre value of his comparables is $2,271.25 per acre for the
bare land and the lowest adjusted per acre value of his
comparables is $2,148 per acre. Multiplying either by 1,358
acres increases the value of the bare land, and when added to
Mr. Moorer's timber value and improvements value, exceeds
the total value for the Farm as appraised by Mr. Perryman.
There was no explanation given by Mr. Moorer for this
discrepancy and the Court accepts Mr. Perryman's appraised
value of the Farm.
"This Order shall serve as notice to the parties of the
value of each parcel.
"The respondent, Ann Langford, has not requested
partition by sale, but did request the option to purchase her
interest in the Main Street Commercial Building. Since she did
not request partition by sale, in accordance with [§]
35-6A-7(d)(e)(1)(2), [Ala. Code 1975,] the Court orders that no
later than thirty days from the date hereof, should the
respondent, Ann Langford, desire to buy the interest of the
petitioner, Harriett Broussard, in one or more of the parcels of
property described above, she shall send notice to the Court
and to the other parties stating that she elects to buy the
interest of the petitioner, Harriett Broussard...."
In compliance with the trial court's order, Ann filed a notice that she
intended to purchase Harriett's interest in all the properties. Specifically,
Ann stated that "she intends to purchase the interest owned by Harriett
9
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Broussard, in all real estate owned in part or in whole, by the Estate of
Mary Walker Taylor, Deceased, in accordance with the Court’s property
values as set out in said Order." (Emphasis added.)
Thereafter, Harriett filed a motion seeking additional time in which
to remove cattle that she had been keeping on the farm property in the
event that Ann purchased that property, and she asked the trial court to
hold a hearing on the remaining issues, which she stated included a
division of certificates of deposit, cash, stock, and jewelry in the mother's
estate and an ascertainment of the amount Ann had allegedly
misappropriated from the mother's estate.
On June 19, 2019, the trial court entered an order directing Ann to
pay a total amount of $1,927,150.75 to purchase Harriett's interests in the
properties by October 1, 2019. In that order, the trial court also set the
matter for a hearing on September 4, 2019, and it identified the following
remaining issues:
"1. The division of the Certificates of Deposit.
"2. The division of the cash.
"3. The division of the bank stock.
10
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"4. The division of the jewelry and other personal effects of
their mother.
"5. Ascertainment of the amount the Respondent Ann
Langford owes to [Harriett] based upon erroneous previous
charges to the estate.
"6. Dismissal of defendants, Harral and George Landry.
"7. The amount of time, if any, that the Petitioner, Harriett
Broussard, needs for removal of the cattle after October 1,
2019."
On September 4, 2019, the trial court held a bench trial. Before the
trial began, Harriett and Ann entered stipulations regarding issues 4, 5,
6, and 7, and the trial court stated that it would allow testimony
regarding care for Mary and that it would reserve ruling on whether Mary
was entitled to a portion of the mother's estate. The trial court also stated
that it would not consider an assertion by Ann that she had been ousted
from the farm property and, thus, was entitled to rent for the use of her
share of the farm property during her ouster.
Ann called Mary to testify. Mary testified, among other things, that,
at the time of the trial, she was 71 years old, that she lived with Ann, that
she had everything she needed, and that she was doing "great."
11
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Ann testified that Mary had suffered a brain injury at birth and that
she required someone to care for her. Ann testified that Mary was very
active in her church and in other areas of her life. At a previous hearing,
Ann had testified that Mary can read and write, and that she can walk,
but that she has limitations with her motor skills. Ann had also testified
at a previous hearing that Mary has a "wonderful memory" and that she
enjoys socializing, reading, working word puzzles, and going on trips. The
trial court admitted, over objection, an exhibit of a proposed budget for
Mary.
Ann also testified at length about various cows and bulls that she
had witnessed on the farm property. According to Ann, Harriett had a
cattle operation on the farm property but many of the cows were not
Harriett's. Ann testified that the mother had previously leased the farm
property to Jimmy Broussard, Harriett's former husband, and that the
most recent lease, which had expired in December 2016, had been for
$18,000 per year. Ann submitted numerous pictures of the cows and
trailers loaded with cows. The trial court sustained Harriett's objection to
the admission of that evidence and advised Ann that she could make an
12
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offer of proof, but she did not do so at that point. Eventually, after the
witnesses had testified, Ann's attorney made the following offer of proof
regarding the rejected ouster claim:
"That the overall testimony of these various witnesses
would be that there is a family farming operation conducted on
the [farm] property, that not all the cattle are Miss
Broussard's cattle. Other people's cattle have been there and
have been sold from there.
"....
"All these factors indicate that Miss Harriett Broussard
has ousted Miss Ann Langford and that Miss Langford is
entitled to three years' rent on the farm -- on her interest in
the farm."
In response, Harriett argued that the mother's interests in the four
parcels of real property had devolved to Harriett and Ann at the mother's
death and that, thus, the properties were not part of the administration
of the mother's estate but, rather, were only the subject of her claims
under the Alabama Uniform Partition of Heirs Property Act. Harriett
argued that Ann had not asserted an ouster claim, that this action was not
the appropriate action in which to pursue such a claim, and that Ann
could commence a separate action to pursue such a claim. Both parties
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filed posttrial briefs. Ann attached deposition testimony to her posttrial
brief, which the trial court struck on Harriett's motion.
On September 30, 2019, the trial court entered an order, pursuant
to which Ann was required to pay $1,927,150.75 by October 1, 2019, to
purchase Harriett's interests in the properties. Ann sought a three-week
extension to finish acquiring a loan to purchase Harriett's interests. The
trial court granted Ann's request, extending the deadline to October 22,
2019, over Harriett's objection. On October 21, 2019, Ann sought another
three-week extension, also based on difficulties with the loan process. The
trial court granted the request and extended the deadline to November 12,
2019. On October 29, 2019, Ann filed a notice informing the trial court
that she could not obtain financing to purchase the farm property but that
she intended to purchase Harriett's interests in the Weyerhaeuser
property and the commercial property.
On November 12, 2019, Ann filed a motion asking the trial court to
reconsider the appraisal submitted by Perryman. In her motion, Ann
stated that she had hired Edwin Tillman, who, Ann asserted, had noted
problems with Perryman's credentials and appraisal. Harriett filed a
14
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response in which she asserted, among other things, that Ann had never
objected to the court's valuation of the properties contained in its May 6,
2019, order. Harriett also filed a motion asking the trial court to declare
that Ann's time to purchase Harriett's interests in the properties had
expired, and she filed a notice of her intent to purchase Ann's interest in
the farm property.
On November 13, 2019, the trial court denied Ann's motion to
reconsider Perryman's appraisal. Ann filed another motion to reconsider,
to which she attached documents from Tillman. Harriett filed a motion
requesting that the trial court strike the attachments and deny Ann's
most recent motion to reconsider. It does not appear that the trial court
ever ruled on Harriett's motion to strike.
The trial court held a hearing on December 16, 2019, at which it
heard arguments regarding Ann's most recent motion to reconsider. On
December 23, 2019, the trial court entered an order in which it denied
Ann's motion but allowed Ann until the first week of January 2020 to
purchase Harriett's interests in the properties. The trial court ordered
that, if Ann failed to meet that deadline, her right to purchase Harriett's
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interests in the properties would be deemed to have expired and Harriett
would have the option to purchase Ann's interests in the properties. That
same day, the trial court entered another order with detailed findings.
The relevant portion of that order provides:
"At some point, [Ann and Harriett] became estranged,
but [they] have each equally contributed to the financial
maintenance and support of [Mary] up to this date. Any
shortfall of Mary's expenses is borne equally by the two sisters
through the use of the 'Estate' account or the 'Store' account.
"The Estate has not been closed and the real property
was never divided between [Harriett] and [Ann], prior to this
suit.
"....
"The Suit
"The Complaint contains two separate claims. The first
was filed by [Harriett] as joint tenant in common with [Ann]
for the four parcels of real estate. She asked the Court to
determine if the property was 'Heirs Property' under the
statute and to partition or sell the properties.
"The second aspect dealt with dividing and closing the
Estate. [Harriett] asked for the division of the personal
property and accounting by [Ann] and for the Court to close
the Estate.
"[Ann] did not file any claims in the Estate portion of the
case pertaining to their sister, Mary, nor did she file any claim
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contending loss of rent or use due to [Harriett's] cattle
business on the Taylor farm [property] which is one of the four
parcels.
"In connection with the partition of the real estate, the
Court ordered that this was 'Heirs Property' and ordered an
appraisal and a survey. After a valuation hearing, [Ann]
exercised her option under the 'Heirs Statute' to purchase all
four properties. On June 19, 2019, the Court entered an order
setting forth the values of those four properties and that [Ann]
would be paying the purchase price ordered by the Court
[$1,927,150.75] on October 1, 2019. The only thing left
ancillary to the real estate was the removal of the cattle by
[Harriett] and it has been stipulated and agreed that after
[Ann] pa[id] the money on October 1, that [Harriett] [would]
remove the cattle from the farm on October 2. (The issue of
payment and appraisal was taken up at an additional hearing
set December 16, 2019. The Court entered an order based upon
that hearing. That order is incorporated herein by reference.)
"That left pending the Estate matters and the Court
requested proposed orders on the issues to be resolved
concerning the Estate. At that time [Ann], and for the first
time, contended that two issues remained in the case: (1) that
the personal property of the Estate should not be distributed,
but some amount should be held for the benefit of their sister,
Mary, and (2) as part of the Estate that [Ann] claimed rent or
damages as a result of [Harriett's] occupation of the farm
[property] for her cattle operation. The Court determined that
those two matters were outside the scope of the future hearing
and limited the issues involved in this hearing, eventually set
for September 4, 2019.
"....
17
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"At the September 4 hearing, the Court allowed [Ann] to
present evidence concerning financial support for their sister,
Mary. The Court allowed [Ann] an offer of proof concerning the
issue of 'ouster' because of [Harriett's] cattle business on the
farm.
"Dividing the Personalty and Closing the Estate
"[Harriett] and [Ann], as joint executrixes, continue to
hold the personal property in the Estate. That personal
property is described as follows:
"1. Nine Certificates of Deposit. ...
"2. 1,700 shares of Citizens BancShares, Inc. stock. ...
"3. The amount in the Taylor/Langford Account (Store
Account) ... is $6,827.04. The balance in the Mary W. Taylor
Estate File Account ... is $97,273.07. ...
"The requirements of the Bank for the redemption or
transfer of this property was testified to by Lisa Cochrane and
is summarized in her report ....
"4. The [mother's] jewelry ....
"It is [Harriett's] position that this is the property jointly
and equally owned by [Harriett] and [Ann] and it should be
divided by the Court so that the Estate can then be closed. It
is [Ann's] position that money should be withheld from
[Harriett] and [Ann] to be used as needed for and by their
sister, Mary Elizabeth Taylor. However, [Ann] has never filed
any pleading in this case requesting the same and [Harriett]
has not agreed to the trial of that issue. The only reference
was in a brief filed by [Ann]. [Ann] asserted from the witness
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stand that she could pursue the issue as a sister. Mary
Elizabeth has never been a party in this case.
"[Harriett] then briefed this issue on June 27, 201[9] ....
The Court finds that Mary Elizabeth Taylor has been omitted
from the Will by the express words necessary to do so. Wilder
v. Loehr, 211 Ala. 651, 101 So. 591 (1924). [The mother]
expressly used the word 'intentionally' and explained why.
Then she bequeathed all of her property equally to [Harriett]
and [Ann] 'to be theirs in fee simple absolutely.' Tucker v.
Bradford, 599 So. 2d 611 (Ala. 1992); Guion v. Guion, 100 So.
2d 351 (Miss. 1958); Quigley v. Spencer, 172 A. 253 (R.I. 1934).
"In short, the Court finds the defendant, [Ann], asks this
Court to refrain from dividing the personal property (a) in
order to hold the money for an excluded heir; (b) without any
right to do so; and (c) contrary to the express terms of the Will.
[Harriett] asks that the Court order the equal division of the
personal property between her and [Ann], award [a] broach to
[Harriett], and close the estate and the Court agrees.
"[ANN]'S CLAIM IN THIS CASE FOR
USE OF THE FARM AGAINST [HARRIETT]
"Real property devolves immediately to the devisees and,
thus, [Harriett] and [Ann] are and have been co-tenants of the
real property. Accordingly, the personal representative is
generally not in possession or control of the real property.
Schlumpf v. D'Olive, 203 So. 3d 57 (Ala. 2016).
"There has been no counterclaim filed in this case by
[Ann] against [Harriett] as a joint tenant and this claim for the
rent has never been [pleaded] or become any part of this
lawsuit. It certainly cannot be a claim against the Estate when
one of two joint tenants used the property. The claim that
19
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[Ann] attempts to present is not part of this lawsuit. It has
been properly excluded by the Court.
"Furthermore, the Court grants [Harriett's] Motion to
Strike the Deposition Excerpts offered by [Ann] in her post-
trial brief. That violates Rule 32, [Ala. R. Civ. P.]
"However, the Court finds from the evidence put on by
[Ann] that there was no 'ouster.' She has never been denied
entry to the [farm] property. In fact, she testified that she has
gone onto the farm [property] almost daily and sometimes at
night. She had over one hundred photographs she has taken
over the past three years of the [farm] property. She knows
which cows have which brands. She knows about the cows and
bulls coming and going. There is no lock on the gate.
[Harriett's] son, Taylor, is there daily and he has never even
attempted to prevent her from entering the [farm] property.
There has been no ouster. Spiller v. Mackereth, 334 So. 2d 859
(Ala. 1975).
"This claim is not part of the Estate and the Court finds
that [Ann] has proven there has been no ouster.
"....
"Since the Court is able to dispose of the personalty in
the Estate and the accounting has been stipulated [to] by the
parties, the same constitutes a full and final settlement of the
Estate. The Court, therefore, orders the Estate closed and
discharges [Harriett] and [Ann] as executrixes of the Estate of
Mary Walker Taylor."
On January 14, 2020, after Ann failed to pay the $1,927,150.75 to
purchase Harriett's interests in the properties, the trial court entered an
20
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order finding that Ann's right to purchase the farm property had expired
and that Harriett had 90 days in which to purchase that property. The
trial court further ordered that, "[i]f [Ann] has an objection to the same
and/or if [she] is not agreeable to the proposal set forth in [Harriett's]
motion for the sale of the farm [property], the commercial property and
the Weyerhaeuser property, then she shall notify the Court within three
days of this Order." Ann did not file any objection. On February 11, 2020,
the trial court entered an order, based upon the agreement of the parties,
to sell the Tuscaloosa Street property at a public sale.
On March 24, 2020, after a hearing, the trial court entered an order
"Pursuant to [§] 35-6A-7(e)(4)(A) of the Code of Alabama, and the
agreement of the parties," divesting Ann of any interest in the farm
property and vesting Harriett with all interest in the farm property upon
payment of $1,750,000 to the trial-court clerk. That same day, the trial
court entered an order approving the sale of the Tuscaloosa Street
property for $42,000 to Taylor Broussard, Harriett's son.
On March 27, 2020, the trial court entered a final judgment in which
it ordered the following:
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"1. The Respondent, Ann Langford, has paid the sum of
money into Court for the reallocation of the interests in both
the Weyerhaeuser Property and the Commercial Property.
Therefore, the Clerk is Ordered, after deduction of 1% for the
payment into the General Fund, to pay the balance to the
Petitioner, Harriett Broussard.
"2. Upon payment to the Petitioner, Harriett Broussard,
she shall be divested of any right, title or interest in and to the
Weyerhaeuser Property and in and to the Commercial
Property.
"3. It is further Ordered that upon presentment to the
Clerk by the Respondent, Ann Langford, of a Clerk's Deed
conveying the interest of Harriet Broussard to the Respondent
in the Weyerhaeuser Property and the Commercial Property,
that the Clerk shall execute and deliver said deed to the
Respondent, Ann Langford, vesting in the Respondent all of
Petitioner, Harriett Broussard's, interest in and to the
Weyerhaeuser Property and the Commercial Property.
"4. The Court has previously entered its Order on March
24, 2020, approving the reallocation of the interest in the Farm
[property] divesting Ann Langford of any right, title or interest
in and to the same and to vest 100% in the Petitioner, Harriett
Broussard,
upon
her
presentment
and
payment
of
$1,750,000.00 to the Clerk of this Court. Since the Respondent
has indicated (but is not bound) that there may be an appeal
forthcoming on the issue of the appraisal of the Farm
[property], [Harriett] may delay payment until the expiration
of the time for appeal or the conclusion of all appeals.
"5. The Court has previously approved the public sale of
[the] Tuscaloosa Street [property].
22
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"6. Therefore, all four of the properties have been
disposed of leaving only ministerial actions by the Clerk in
connection with the Weyerhaeuser Property, the Commercial
Building and the Farm [property] and, therefore, this is the
Final Judgment in this case, costs taxed as paid."
Ann filed a motion to amend the final judgment in which she argued
only that Harriett should not be permitted to delay payment for the farm
property pending an appeal. The trial court granted the motion and
ordered Harriett to pay the money into court to receive the deed to the
farm property without waiting for the conclusion of any appeals. Ann
appealed to this Court.
Discussion
I. Harriett's motion to dismiss or strike
Harriett filed with this Court a motion to dismiss or strike two of
Ann's arguments as noncompliant with Rule 3(e), Ala. R. App. P., which
concerns the filing of the docketing statement. Harriett argues that Ann
did not include on the docketing statement her issues concerning whether
the trial court was required to add Mary as a party and whether the trial
court erred in failing to find that the farm property could not be equitably
divided before allowing Harriett to purchase it. As discussed below, an
23
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appellant may challenge a trial court's failure to add a necessary party for
the first time on appeal. See Capitol Farmers Mkt., Inc. v. Delongchamp,
[Ms. 1190103, Aug. 28, 2020] ___ So. 3d ___, ___ (Ala. 2020). Therefore,
Ann's failure to include that issue on the docketing statement would not
preclude her from raising it on appeal. With regard to Ann's argument
that the trial court was required to find that the farm property could not
be equitably divided before permitting Harriett to purchase Ann's interest
in that property, Ann has raised that argument for the first time on
appeal and, therefore, we decline to address that issue. See Andrews v.
Merritt Oil Co., 612 So. 2d 409, 410 (Ala. 1992). Accordingly, this Court
finds it is unnecessary to grant Harriett's motion to dismiss or strike, and
we deny the motion.
II. Whether Mary was a necessary party
Ann argues that the trial court erred in failing to add Mary as a
party to the action because, she asserts, Mary was entitled to receive a
share of the mother's estate. Ann also argues that the trial court erred in
failing to appoint a guardian ad litem to represent Mary's interests
24
1190623
because, she asserts, Mary is non compos mentis.2 Harriett argues that
Ann raises these arguments for the first time on appeal, that Mary should
not have been added as a party because she was not entitled to receive
anything under the unambiguous terms of the will, and that there is no
evidence to support Ann's assertion that Mary is non compos mentis.
Although Ann did not attempt to add Mary as a party during the
trial-court proceedings, a challenge to a trial court's failure to add a
necessary party may be raised for the first time on appeal. Capitol
Farmers Mkt., ___ So. 3d at ___. However, "the absence of an
indispensable party does not deprive the circuit court of subject-matter
jurisdiction." Miller v. City of Birmingham, 235 So. 3d 220, 230 (Ala.
2017)(citing Campbell v. Taylor, 159 So. 3d 4 (Ala. 2014)).
Rule 19, Ala. R. Civ. P., entitled "Joinder of Persons Needed for Just
Adjudication," provides, in pertinent part:
"(a) Persons to Be Joined If Feasible. A person who is
subject to jurisdiction of the court shall be joined as a party in
2"Non compos mentis," which is Latin for "not master of one's mind,"
is defined as "insane" or "incompetent." Black's Law Dictionary 1263 (11th
ed. 2019).
25
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the action if (1) in the person's absence complete relief cannot
be accorded among those already parties, or (2) the person
claims an interest relating to the subject of the action and is so
situated that the disposition of the action in the person's
absence may (i) as a practical matter impair or impede the
person's ability to protect that interest or (ii) leave any of the
persons already parties subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest. If the person has
not been so joined, the court shall order that the person be
made a party."
This Court has previously explained:
" 'Rule 19, [Ala.] R. Civ. P., provides a two-step process
for the trial court to follow in determining whether a party is
necessary or indispensable. Ross v. Luton, 456 So. 2d 249, 256
(Ala. 1984), citing Note, Rule 19 in Alabama, 33 Ala. L. Rev.
439, 446 (1982). First, the court must determine whether the
absentee is one who should be joined if feasible under
subdivision (a). If the court determines that the absentee
should be joined but cannot be made a party, the provisions of
(b) are used to determine whether an action can proceed in the
absence of such a person. Loving v. Wilson, 494 So. 2d 68 (Ala.
1986); Ross v. Luton, 456 So. 2d 249 (Ala. 1984). It is the
plaintiff's duty under this rule to join as a party anyone
required to be joined. J.C. Jacobs Banking Co. v. Campbell,
406 So. 2d 834 (Ala. 1981).' "
Liberty Nat'l Life Ins. Co. v. University of Alabama Health Servs. Found.,
P.C., 881 So. 2d 1013, 1021-22 (Ala. 2003)(quoting Holland v. City of
Alabaster, 566 So. 2d 224, 226 (Ala. 1990)). "The question whether a
26
1190623
nonparty is a necessary party is governed by Rule 19(a); the question
whether a party is an indispensable party is governed by Rule 19(b)." Ex
parte Advanced Disposal Servs. S., LLC, 280 So. 3d 356, 360 (Ala. 2018).
If a party is not deemed to be necessary under Rule 19(a), it follows that
that party could not be considered "indispensable" under Rule 19(b).
We can determine whether Mary should have been joined as a
necessary party by first asking if complete relief could have been afforded
between Ann and Harriett in Mary's absence. To make that
determination, we must look to the nature of the action. Harriett
commenced an action to settle the mother's estate and to partition by sale
real property. In settling the estate, the trial court was required to follow
the language of the will, which states: "I have intentionally omitted my
beloved daughter, Mary Elizabeth Taylor, from taking under this will for
I have done for her during my lifetime and I know that my family will not
let her suffer."
Ann argues that Mary "has a colorable claim to share her mother's
Estate along with her sisters which should be properly presented to and
considered by the trial court." Ann's brief at p. 36. The trial court
27
1190623
addressed Ann's contention that Mary was entitled to share in the estate
in its December 2019 order and specifically found that Ann had not filed
any pleadings in the case making that request, that Harriett had not
agreed to try that issue, and that Mary was not a party to the case.
Nevertheless, the trial court found that Mary was intentionally omitted
from the will, and it declined to set aside money from the mother's estate
for Mary's benefit.
In support of her argument that Mary is entitled to inherit a portion
of the mother's estate, Ann asserts that the language of the will is
ambiguous as to whether it was the mother's intention that Mary would
receive nothing from the proceeds of her estate. Ann contends that the
language omitting Mary conflicts with the language evidencing the
mother's intent that Mary would be provided for, and she argues that the
conflict must be considered in light of the presumption that parents do not
intend to disinherit their children. Ann also makes numerous other will-
construction arguments and cites authorities relating to the construction
of wills. However, there was no need to construe terms of the will in this
case. "It is an elementary principle that intention must be found in the
28
1190623
instrument itself; that, where the language of the instrument is
unambiguous and perfectly clear, there is no field for the play of
construction ...." First Nat'l Bank of Montgomery v. Sheehan, 220 Ala.
524, 527, 126 So. 409, 412 (1930). See also Smith v. Nelson, 249 Ala. 51,
54, 29 So. 2d 335, 338 (1947)(explaining that, if a will is unambiguous,
"there is no case for construction"). The will clearly divides the mother's
estate between Harriett and Ann in fee-simple absolute, and the will
unambiguously and intentionally omits Mary.
In Tucker v. Bradford, 599 So. 2d 611 (Ala. 1992), the testator
bequeathed his estate to his daughter " 'to divide and disperse as she sees
fit or to be held in trust by her alone for any period of time she wishes.' "
599 So. 2d at 612. The testator's will further provided that the daughter
" 'may designate at [the testator's] death what portions of [his] estate will
go to others according to agreement between her and [the testator].' " Id.
This Court held that, "because there are no provisions for [the daughter]
to disperse the property to specific beneficiaries, [she] took the property
as a beneficiary" and, further, that "the language of the will expressly
devise[d] the property of the estate to [the daughter], and ... any
29
1190623
implication that [the testator] did not intend to disinherit the [other
family members] is insufficient." Id. at 613. The language of the mother's
will in this case was much clearer and expressly disinherited Mary. There
is no ambiguity and, therefore, no room for construction.
Accordingly, because Mary was not a beneficiary under the will or
a joint tenant of the property devised in the will, she had no actual
interest in the outcome of this action for the final administration of the
mother's estate and the partition by sale of the properties jointly owned
by Harriett and Ann. Therefore, the trial court could settle the estate and
divide the properties -- affording complete relief to Harriett and Ann --
without adding Mary as a party. See Rule 19(a)(1). Furthermore, this
Court has held that "joinder of the absent parties is not absolutely
necessary where determination of the controversy will not result in a loss
to the absent parties' interest or where the action does not seek a
judgment against them. Morgan Plan Co. v. Bruce, 266 Ala. 494, 497-98,
97 So. 2d 805, 808 (1957)." Byrd Cos. v. Smith, 591 So. 2d 844, 846 (Ala.
1991). Accordingly, because relief could be afforded in Mary's absence and
the determination of the action did not "result in a loss to [her] interests,"
30
1190623
see id., Mary was not a necessary party and the trial court was not
required to add her as a party to the action.
As mentioned above, Ann also argues that, pursuant to Rule 17(c),
Ala. R. Civ. P., the trial court should have appointed a guardian ad litem
to represent Mary's interests. We need not reach this issue, however,
because of our determination that Mary was not required to be added as
a party.3
III. Whether the trial court erred in granting Harriett the right to
purchase Ann's interest in the farm property without first determining
that the farm property could not be equitably divided
Ann argues that the trial court erred in ordering that Harriett could
purchase Ann's interest in the farm property and that Ann was divested
of her interest in that property without the trial court's first finding that
the property could not be equitably divided between them. Ann asserts
that she had argued that the farm property could be divided and that,
under § 35-6A-6(f) and (g), Ala. Code 1975, the trial court was required to
3We also note that, as Harriett points out, any evidence
demonstrating that Mary was non compos mentis is lacking from the
record and that the trial court had the opportunity to witness Mary and
her alleged incompetence because Ann called her to testify.
31
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set the value of the property and then determine the merits of the
partition action. Ann further argues, citing § 35-6A-8(a), Ala. Code 1975,
that a partition of heirs property must be a partition in kind, rather than
a partition by sale, if any party requests it, unless the court finds that
partition in kind would result in great prejudice to the cotenants, and that
no evidence was presented that the farm property could not be equitably
divided. Ann further argues that she did not waive the right to have the
farm property partitioned in kind by first offering to purchase Harriett's
interest in the farm property and then failing to do so.
Harriett argues that the parties agreed to the disposition of the
properties and that, as a result, the trial court was not required to follow
the procedures in the statutes upon which Ann relies. Ann argues that she
did not agree to the disposition of the farm property, and Ann cites § 34-3-
21, Ala. Code 1975, in asserting that any agreement the parties might
have reached was required to be made in writing or in open court to be
effective. Ann cites a portion of the record from the March 9, 2020,
hearing, at which her attorney stated that, if Harriett's attorney "thought
that at some point that [Ann] was agreeing to waive any right that [she]
32
1190623
had to appeal the Court's order, he's wrong. At the hearing in Marion we
made clear to the Court that we thought the appraisal was incorrect and
that the selection of the appraiser was incorrect and we reserved that
right on appeal and we still do." First, Ann's attorney stated that he did
not agree to waive the right to appeal the appraisal issue -- he did not
state that he did not agree to the proposal regarding the sale of the farm
property. Second, § 34-3-21 concerns the authority of an attorney to bind
his or her client to an agreement, and it does not support Ann's argument.
Regardless of whether there was any agreement, Ann did not first
raise in the trial court her argument that the trial court was required to
determine that partition in kind was inequitable before allowing Harriett
to purchase the farm property. It is well settled that "[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 at 410. See Rodriguez-Ramos v. J.
Thomas Williams, Jr., M.D., P.C., 580 So. 2d 1326, 1328 (Ala. 1991)(noting
that an appellate court "cannot put a trial court in error for failing to
33
1190623
consider a matter which, according to the record, was not presented to, nor
decided by it").
In its January 14, 2020, order, the trial court specifically stated:
"It is further Ordered that the Petitioner, Harriett
Broussard, has until April 13, 2020, to complete her purchase
of the farm [property] and to pay 50% of the $3,500,000.00 into
Court by that date.
"If [Ann] has an objection to the same and/or if [she] is
not agreeable to the proposal set forth in the Petitioner's
motion for the sale of the farm [property], the commercial
property and the Weyerhaeuser property, then she shall notify
the Court within three days of this Order."
Ann did not file an objection or otherwise challenge Harriett's right
to purchase the farm property. In addition, Ann did not file any
postjudgment motion raising the issue she now seeks to raise on appeal.
Ann's postjudgment motion sought to amend the judgment only insofar as
it permitted Harriett to delay payment for the farm property pending an
appeal. Because Ann did not first raise her argument in the trial court, we
will not consider it on appeal.
IV. Whether the trial court erred in denying Ann's
request for a new appraisal
34
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Ann argues that the trial court exceeded its discretion in failing to
order a new appraisal of the farm property. Ann cites the discrepancy
between Perryman's appraisal and Moorer's appraisal, and she asserts
that Perryman's appraisal was inaccurate. Ann also relies on a document
from Tillman, another appraiser, that found problems with Perryman's
appraisal and that she filed with her most recent motion to reconsider the
appraisal.
Although Ann initially objected to Perryman's appraisal, the trial
court held a hearing on her objection and received ore tenus testimony
from Perryman and Moorer. After the hearing, the trial court entered an
order in which it listed specific, irreconcilable issues that it had found
regarding Moorer's appraisal, and it accepted Perryman's appraisal and
fixed the value of the farm property at $3,500,000. Thereafter, Ann filed
a motion in which she agreed with the trial court's valuation of the
properties and agreed to purchase the properties at that value. In
November 2019, only after she could not obtain financing, Ann asked the
trial court to reconsider the appraised value of the farm property. The
trial court denied Ann's request, and, thereafter, Ann requested that the
35
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trial court reconsider its denial and submitted Tillman's report. After
holding a hearing, the trial court declined to order a new appraisal.
Ann does not explain why the ordering of a new appraisal is
necessary or what she hopes to gain from such action. Insofar as Ann's
position could be construed as arguing that a new appraisal would lower
the value of the farm property to allow Ann to purchase Harriett's interest
in the farm property -- that argument is moot. " 'The test for mootness is
commonly stated as whether the court's action on the merits would affect
the rights of the parties.' " Chapman v. Gooden, 974 So. 2d 972, 983 (Ala.
2007)(quoting Crawford v. State, 153 S.W.3d 497, 501 (Tex. App. 2004),
citing in turn VE Corp. v. Ernst & Young, 860 S.W.2d 83, 84 (Tex. 1993)).
As explained above, Ann failed to lodge a challenge in the trial court to the
judgment granting Harriett the right to purchase Ann's interest in the
farm property, and, therefore, we are affirming the judgment in that
respect. Accordingly, this Court's determination regarding whether a new
appraisal should have been ordered would not affect the rights of the
parties because Harriett's purchase of Ann's interest in the farm property
36
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stands as ordered in the judgment.4 Accordingly, Ann has not
demonstrated that the trial court erred in refusing to order a new
appraisal.
V. Whether the trial court properly excluded
Ann's proposed claim of ouster
Ann argues that the trial court erred in refusing to allow her to
present a claim of ouster or to recover rent as a consequence of the alleged
ouster. Harriett argues that that claim was not properly pleaded or tried
by express or implied consent.
Ann contends that she asked in her answer for "any other relief to
which she may be entitled," that Harriett was on notice of her proposed
claim of ouster through questions she asked during discovery, and that
Rule 15(b), Ala. R. Civ. P., requires a trial court to be liberal in granting
4The only conceivable way that Ann's rights could be affected by the
ordering of a new appraisal would be if the appraised value of the farm
property were lowered, which would lower the value of her and Harriett's
interests in the farm property. Under such a hypothetical scenario, Ann
would be entitled to receive less than what Harriett paid to purchase
Ann's interest in the farm property -- an argument Ann does not raise for
obvious reasons. Accordingly, Ann has not raised any argument that
would indicate that her rights could be affected by the ordering of a new
appraisal, further supporting a conclusion that her argument is moot.
37
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an amendment to pleadings and allows for the pleadings to be amended
to conform to the evidence.
Ann relies on Johnson v. Montgomery Baptist Hospital, 326 So. 2d
738 (Ala. 1976), in which this Court reversed a trial court's ruling refusing
to allow a plaintiff to amend her complaint after the defendant had moved
for a directed verdict (now referred to as a judgment as a matter of law,
see Rule 50, Ala. R. Civ. P.) based on a variance between the plaintiff's
pleadings and the evidence presented at the trial. This Court noted that
the defendant had notice of the nature of the plaintiff's claims based on
her complaint and that the defendant would not have been prejudiced by
the amendment. Johnson is entirely distinguishable from the present case
because, here, Ann was the defendant and did not have a complaint or a
counterclaim that she sought to amend. Moreover, Ann did not present
evidence in support of an ouster claim, because the trial court disallowed
that claim. Ann's offer of proof merely showed that Harriett had allegedly
engaged in certain activities on the farm property. As discussed more
below, such evidence would not have supported a claim of ouster.
Accordingly, Johnson does not support Ann's argument.
38
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Ann also cites Spiller v. Mackereth, 334 So. 2d 859 (Ala. 1976), in
stating: "A counterclaim for rent as a consequence for ouster is properly
considered as a counterclaim in a sale for division." Ann's brief at pp. 56-
57. Ann again overlooks the fact that she did not file a counterclaim.
Ann also argues that the trial court, despite ruling that she could not
present an ouster claim, erroneously concluded that Ann had not
presented evidence indicating that there had been an ouster. As explained
above, although the trial court disallowed the ouster claim, it permitted
Ann to make an offer of proof. In making that offer, Ann's attorney stated
that the proposed testimony would indicate "that there is a family farming
operation conducted on the [farm] property, [and] that not all the cattle
are Miss Broussard's cattle. Other people's cattle have been there and
have been sold from there." Ann's attorney further stated that those
"factors indicate that Miss Harriett Broussard has ousted Miss Ann
Langford and that Miss Langford is entitled to three years' rent on the
farm -- on her interest in the farm."
In the context of this case, ouster would involve "the liability of an
occupying cotenant for rent to other cotenants." Spiller, 334 So. 2d at 861.
39
1190623
This Court in Spiller noted that "[t]he normal fact situation which will
render an occupying cotenant liable to out of possession cotenants is one
in which the occupying cotenant refuses a demand of the other cotenants
to be allowed into use and enjoyment of the land ...." 334 So. 2d at 861.
Ann argues that the trial court incorrectly determined that she could not
establish a claim of ouster because she was not denied physical entry onto
the farm property. Ann argues that she could establish ouster by showing
that she was denied the use and enjoyment of the farm property.5 As this
Court further explained in Spiller, however:
"[B]efore an occupying cotenant can be liable for rent in
Alabama, he must have denied his cotenants the right to enter.
It is axiomatic that there can be no denial of the right to enter
unless there is a demand or an attempt to enter. Simply
requesting the occupying cotenant to vacate is not sufficient
because the occupying cotenant holds title to the whole and
may rightfully occupy the whole unless the other cotenants
assert their possessory rights."
5Ann acknowledges that the facts in Spiller are different than the
facts in this case, but she asks this Court to "imagine" if the facts in
Spiller had been the facts allegedly present in this case -- that one
cotenant had refused to allow the other to make profitable use of the
property. As noted above, those alleged facts were stricken by the trial
court, and the members of this Court are not in the habit of using their
imaginations, rather than actual evidence and holdings, in deciding cases.
40
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Id. at 862.
As explained above, Ann did not present or proffer evidence
indicating that she had demanded the right to enter the farm property but
had been denied that right. Likewise, Ann's argument that she could
demonstrate ouster by showing that she was denied the use and
enjoyment of the farm property also fails because she did not present or
proffer evidence indicating that she was denied the use and enjoyment of
the farm property.
Ann states in her brief that the proffered evidence would have
demonstrated that Ann had received lucrative offers to lease the farm
property. However, Ann did not include that proposed evidence in her
offer of proof or otherwise attempt to present it at the trial.6 Although Ann
made those allegations in her posttrial brief and attempted to present
deposition testimony to that effect, that testimony was stricken by the
trial court in its December 23, 2019, order, and Ann did not challenge that
6Ann also asserts that the factual record supporting her ouster claim
is not as well developed as it would have been if she had been permitted
to present her claim. She also asserts that she was prevented from making
a proffer of certain evidence. This assertion is not supported by the record.
41
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ruling in the trial court and does not challenge it on appeal. Accordingly,
the trial court correctly concluded that Ann had not presented evidence,
or demonstrated in her offer of proof, that an ouster had occurred.
Conclusion
Because the judgment is clearly supported by the evidence in the
record and Ann has failed to demonstrate any error on the part of the trial
court, the judgment is affirmed.
MOTION TO DISMISS OR STRIKE APPELLANT'S ARGUMENTS
DENIED; AFFIRMED.
Bolin, Wise, and Sellers, JJ., concur.
Parker, C.J., concurs in the result.
42 | May 21, 2021 |
a5f83ce2-8e43-43f8-92b7-dd36b2399f07 | Ex parte Darrell Burgess. | N/A | 1190856 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190856
Ex parte Darrell Burgess. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Darrell Burgess v. State of
Alabama) (Cherokee Circuit Court: CC-15-233.60; Criminal Appeals :
CR-18-0872).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Shaw, J. -
Parker, C.J., and Bryan, Mendheim,
and Mitchell, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
52fdca5a-f7a7-4735-9ed4-447e6927305a | Cochran v. Keeton | 252 So. 2d 313 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 313 (1971)
In re John W. COCHRAN and Lillie M. Cochran
v.
Paul KEETON and Charles Thompson, individually and d/b/a Keeton and Thompson.
Ex parte Paul KEETON and Charles Thompson, individually and d/b/a Keeton and Thompson.
8 Div. 418.
Supreme Court of Alabama.
September 9, 1971.
*314 Tompkins & Tompkins, Tuscumbia, for petitioners.
MADDOX, Justice.
Petitioners, Paul Keeton and Charles Thompson, individually, and d/b/a Keeton and Thompson, ask us to review the opinion and judgment of the Court of Civil Appeals, and to reverse and remand on the ground that the opinion is contrary to previous opinions of this Court. We granted the writ of certiorari and have reviewed the opinion and judgment rendered by the Court of Civil Appeals, and hereby affirm.
The Court of Civil Appeals recognized that this Court's decision in Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So. 2d 884 (1961) was applicable to the fact situation presented before it, but observed:
Being presented with the opportunity to review Druid, we do overrule Druid insofar as it adopts the rule of caveat emptor in the sale by a builder-vendor of a newly constructed house.
We have gone to the original record and files in Druid, and note that in the Druid case, no brief was filed by the purchaser and no argument was made in his behalf when the cause was argued and submitted. We also note that much of the law in this field has developed during the past decade. The modern trend, even in some of the jurisdictions from which this Court cited opinions in Druid is to repudiate the doctrine of caveat emptor in fact situations similar to the one here under consideration.
By affirming the Court of Civil Appeals in this instance, we realize that we have not answered all of the questions which may arise in the future as a result of our action here, but we take this most important first step.
Considerable comment has been made by legal scholars about the new trend toward judicial abolition of the doctrine of caveat *315 emptor in real estate sales. Most scholars question the retention of the rule in view of current day conditions.
Illustrative cases from other jurisdictions which have held a builder-vendor liable on a theory of implied warranty are: Schipper v. Levitt & Sons, Inc., 44 N.J. 70, 207 A.2d 314 (1965); Kriegler v. Eichler Homes, Inc., 269 Cal. App. 2d 224, 74 Cal. Rptr. 749 (1969); House v. Thornton, 76 Wash. 2d 428, 457 P.2d 199 (Wash.1969); Carpenter v. Donohoe, 154 Colo. 78, 388 P.2d 399 (1964); Bethlahmy v. Bechtel, 91 Idaho 55, 415 P.2d 698 (1966); Waggoner v. Midwestern Development Inc., 154 N.W.2d 803 (S.D.1967); Humber v. Morton, 426 S.W.2d 554 (Tex.1968); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); Rothberg v. Olenik, 262 A.2d 461 (Vt.1970) Weeks v. Slavick Builders, Inc., 24 Mich.App. 621, 180 N.W.2d 503 (1970); affirmed, 384 Mich. 257, 181 N.W.2d 271 (1970). Some jurisdictions, however, still strictly apply the doctrine of caveat emptor but the trend appears definitely to be changing to the view we express here. See Annotation: Defective HomeVendor's Liability, 25 A.L.R.3d 383.
Realizing that this decision changes a long standing rule as to the application of the rule of caveat emptor in the sale of a new house by a builder-vendor, we feel justice will be best served by holding that, except as to this plaintiff-appellant in the instant case, the rule here established shall apply only to cases arising out of future occurrences.
We affirm the judgment of the Court of Civil Appeals.
Affirmed.
SIMPSON, MERRILL, HARWOOD and BLOODWORTH, JJ., concur.
LAWSON, COLEMAN and McCALL, JJ., dissent.
HEFLIN, C. J., not sitting.
COLEMAN, Justice (dissenting).
Druid Homes, Inc. v. Cooper, 272 Ala. 415, 131 So. 2d 884, was decided by this court June 29, 1961. There, the defendant had appealed from a judgment for plaintiff in an action claiming damages for breach of an agreement "* * * to purchase a house and lot wherein it was implied that the dwelling was of substantial *316 construction and was built in a workmanlike manner. The breach * * * was that the house was not constructed in a workmanlike manner and that water drained from the bathroom facilities and emptied under the house without any drainage, and damage resulted." (Emphasis supplied.) 272 Ala. at 415, 131 So. 2d at 885.
This court said:
This court then discussed eleven or more cases in support of its declaration of the law and further said:
"* * *
In 1967, a contractor-builder appealed from a judgment for the owner "* * * for breach of a contract made with appellees to construct for them in a good and workmanlike manner a dwelling house * * *." Carter v. West, 280 Ala. 603, 196 So. 2d 718. The contractor relied on Druid Homes. This court affirmed the judgment for the owner and said:
In 1969, plaintiffs appealed from a judgment of voluntary nonsuit in an action "for * * * damages for breach of a contract for the purchase of a house built by the Defendant, Joe J. Bedford, Jr., for the Plaintiffs * * *." Livingston v. *317 Bedford, 284 Ala. 323, 324, 224 So. 2d 873. This court affirmed the judgment favorable to defendant and said:
In Central Stikstof Verkoopkanter, N. V. v. Walsh Steve. Co., 380 F.2d 523, the United States Court of Appeals, Fifth Circuit, affirmed a judgment for defendants, rendered by the United States District Court for the Southern District of Alabama, in a suit for damages to commercial fertilizer stored at the State Docks. Among other things, the Circuit Court said:
In 25 ALR 3rd, p. 419, § 6(c), the annotation cites, in addition to Druid Homes, eighteen cases from nine other states, which follow the view that no implied warranties as to condition, quality, or fitness arise in the sale of real estate. The oldest one of the cases thus cited was decided in 1916, the next oldest in 1930, two in 1932, six from 1952 to 1959, and eight from 1961 to 1968. In one of these cases, the Court of Appeals of Maryland said:
In Skelton v. Weaver, 266 Ala. 335, 96 So. 2d 288, this court quoted from the dissenting opinion of Judge Collier in Bryant v. Simpson, 3 Stew. 339, 343, as follows:
Druid Homes has been the law in Alabama for ten years. The decision is supported by sound reasoning and respectable authority cited in the opinion and 25 ALR 3d 419. This court reaffirmed and followed Druid Homes two years ago, July 3, 1969, in Livingston v. Bedford, supra. I would follow Druid Homes now and reverse the judgment of the Court of Civil Appeals in the case at bar.
LAWSON, Justice (dissenting).
I concur in the dissent of Mr. Justice Coleman but would like to make further observations.
As early as 1842, in the case of Cullum v. Branch Bank at Mobile, 4 Ala. 21, this court recognized the distinction between executory and executed contracts for the sale of realty in regard to implied warranties. In the case last cited it was observed:
In Asbury v. Cochran, 243 Ala. 281, 283, 9 So. 2d 887, 889, decided in 1942 in an opinion prepared for the court by the late Mr. Justice Foster, it was said:
In 92 C.J.S. Vendor and Purchaser § 183 (b), page 15, it is said:
The case of Asbury v. Cochran, supra, is cited in support of the language which we have italicized above.
I recognize that the authorities hereinabove referred to deal with the question of title and not with the condition of a structure on real estate; but the rule applies across the board in my opinion and it was so held in the Druid Homes case decided in 1961 and followed in Livingston v. Bedford in 1969. The Druid Homes case and Livingston v. Bedford are both cited in the dissenting opinion of Mr. Justice Coleman. The Court of Civil Appeals and this court have now cast into the judicial wastebasket two cases, directly in point, decided by this court within the past ten years, apparently on the theory that "Most scholars question the retention *319 of" the "doctrine of caveat emptor in real estate sales." The legal scholars to whom reference is made apparently are the writers of articles appearing in the legal periodicals cited in the court's opinion.
I do not believe that the court's opinion is in harmony with the holdings of the majority of courts in this country (25 A.L.R.3d 383) and yet we are in a more or less cavalier manner departing from principles long embedded in the jurisprudence of this state and which, in my opinion, will create confusion, doubt, and uncertainty in real estate transactions.
The author of the court's opinion recognizes that many questions will have to be answered in future litigation because of the action taken by the court in this case, thereby confronting the seller, the buyer, the practicing attorney, and the trial bench with innumerable problems at which guesses must be made pending future decisions by this court.
The purchaser of a new home may protect himself by requiring covenants in the deed concerning the construction of the house which he is purchasing in the same manner as he must do in order to protect himself in regard to title. | September 9, 1971 |
9d21c513-6445-4be0-be07-c26afd275cd8 | Ex parte Raymond Keith Swink. | N/A | 1200297 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1200297
Ex parte Raymond Keith Swink. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Raymond Keith Swink v.
State of Alabama) (Jefferson Circuit Court: CC-19-58; Criminal Appeals :
CR-19-0533).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 19, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of March, 2021.
Clerk, Supreme Court of Alabama | March 19, 2021 |
8212a12e-8836-49e0-89ab-519aebc91a99 | Alabama Farm Bureau Mut. Cas. Ins. Co. v. Preston | 253 So. 2d 4 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 4 (1971)
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, Inc.
v.
Arch D. PRESTON, Jr.
7 Div. 890.
Supreme Court of Alabama.
September 30, 1971.
Hill, Hill, Stovall, Carter & Franco, Montgomery, Paul Hooton, Roanoke, for appellant.
A. L. Hardegree, Ashland, Rushton, Stakely, Johnston & Garrett and Henry C. Chappell, Jr., Montgomery, for appellee.
HARWOOD, Justice.
In the declaratory proceedings below the Chancellor decreed that Alabama Farm Bureau Mutual Casualty Insurance Company, Inc., hereinafter referred to as the insurer, was obligated under either of two identical automobile insurance policies, to defend Arch D. Preston, Jr., in a suit brought against Preston by Beulah Smith, and to pay any judgment arising from said suit within the limits of either policy.
The suit arose out of a collision between a Dodge automobile driven by Preston, but belonging to his son-in-law, and an automobile driven by Beulah Smith.
At the time of the collision Preston owned two automobiles, a Chevrolet and a Volkswagen. He had in effect at the time of the collision an automobile liability policy issued by the insurer on each of his personally *5 owned automobiles. The insurer denied coverage under the terms of the policies. Preston thereupon brought this declaratory proceeding, and from the decree in his favor the insurer has perfected this appeal.
There are no real conflicts in the testimony of the witnesses below, and the following factual situation is developed by such testimony.
On 1 October 1965, Mr. Preston's daughter Carol married Joe Magee. Shortly after the marriage, Joe Magee entered the United States Marine Corps. After he had completed his basic training Carol joined him and they resided at various Marine Corps installations. In August 1967, Magee was sent overseas and Carol and their small child returned to the home of her parents. A second child was born about two weeks after Carol returned to her parents' home. In response to a question to Carol Magee by Mr. Preston's counsel as to where she went to stay when her husband went overseas, she replied, "Back with my parents." Likewise in response to a question by Mr. Preston's counsel addressed to Mr. Magee as to where his wife went when he went overseas, Mr. Magee responded, "She came back to stay with her parents."
Carol drove to her parents' home in the Dodge automobile, and it was kept in the yard there. The documentary title to the Dodge was in her husband though she testified it was owned jointly by her and her husband.
From the early part of August 1967 until Magee was discharged from military service, Carol remained in her parents' home. She received a monthly allotment from her husband's military pay and there is no evidence she was a financial burden to her parents. About two weeks after Magee's discharge from military service on 16 October 1968, he and Carol established their separate home.
Thus Carol was in her parents' home from early August of 1967 until the latter part of October 1968.
Mr. Preston testified he had driven the Dodge only twice during Carol's stay, once to take it to a garage for repairs, and the second time on the occasion of the collision on 15 July 1968. On this latter occasion Carol and her two children, and his wife and one of their children, were in the Dodge with him.
Under the Insuring Agreement of the policy as to non-owned automobiles, it is provided:
The validity of the decree herein appealed from depends upon whether Preston, at the time of the collision was driving an automobile furnished to or available to a relative for regular use, and whether such relative was a resident of Preston's household.
Since it is undisputed that the Dodge automobile was available to Carol for her regular use, and that Carol was Preston's daughter, the issue narrows to whether Carol was a resident of Preston's household at the time of the collision within the exclusion provision of his policies with the insurer.
*6 In State Farm Mutual Automobile Ins. Co. v. Hanna, 277 Ala. 32, 166 So. 2d 872, we had occasion to interpret the phrase "residing in the same household" present in the policy here under consideration. We can see no real distinction between that phrase and the one with which we are now concerned, i. e., "resident of the same household." In Hanna we wrote:
Insurance contracts, like other contracts, are not to be construed so technically as to defeat the intention of the parties, but are to be given a rational and practical construction. We are not at liberty to make a new contract for the parties by a tortured construction. Holloway v. State Farm Mutual Automobile Ins. Co., 275 Ala. 41, 151 So. 2d 774; Insurance Co. of North America v. Williams, 284 Ala. 510, 226 So. 2d 295.
Premiums on insurance contracts are fixed upon a careful calculation of the hazards assumed, and the scope of coverage is directly related to breadth, or limitation, of the coverage provided. Holloway v. State, supra. Courts have considered that the obvious purpose in excluding from coverage an automobile owned or available to one residing in the insured's household is to avoid overloading a single policy by a multiple coverage of several vehicles owned by members of the same family. See Cox v. Santoro, 94 N.J.Super, 319, 228 A.2d 101; Goens v. Arinder, 248 Miss. 806, 161 So. 2d 509 (1964). While an insured is covered as to permissive use of non-owned automobiles belonging to other persons, such use is regarded by insurers as casual and episodic and not of sufficient seriousness as to be excluded. See Goens v. Arinder, supra.
Under the undisputed facts, Carol came to "stay" with her parents while her husband was overseas. While she did not intend to stay permanently with her parents, nevertheless her stay was to extend for an indefinite time. She was not a mere temporary visitor. Actually, she did remain in her parents' home for over a year. It was during this time that Mr. Preston had the collision while driving the Dodge automobile. We hold that under the undisputed facts the conclusion is dictated that Carol was residing in her father's home at the time of the collision. The language of the policy here involved is not legally ambiguous. Such language excludes liability of the insurer under the facts shown. This being so, it follows that the Chancellor erred in decreeing that the insurer-appellant was under obligation to defend Preston in the suit brought against him by Beulah Smith or to pay any damages that might be awarded in such suit.
The Chancellor made no formal findings of fact, but based his decree "under the facts as found by the court." Under such circumstances the reviewing court will assume that the Chancellor made those findings which the evidence supports and which would support the decree. Dockery v. Hamner, 281 Ala. 343, 202 So. 2d 550.
*7 However, from our study of this record we can find no facts tending to support the decree. In fact, it would appear that under the developed and undisputed facts the decree of the court was contrary to such facts. The usual presumption of correctness accorded a decree or judgment entered upon an ore tenus hearing cannot therefore be indulged.
Accordingly, this decree is reversed, and the cause is remanded to the court below with instructions to enter a decree consonant with this opinion.
Reversed and remanded with instructions.
LAWSON, MERRILL and McCALL, JJ., concur.
MADDOX, J., concurs specially. MADDOX, Justice (concurring specially).
I was initially inclined to dissent, but after careful study, I became persuaded that the majority opinion is correct.
The so-called "non-owned automobile" clauses are of comparatively recent origin and provide regular insurance coverage to the insured and any relative residing in his household in the infrequent use or casual driving of automobiles other than his own. Usually, such "non-owned automobile" clauses contain language which exclude from such extended coverage any automobile (1) owned by the insured or a member of his household, (2) hired by the insured or a member of his household or (3) provided for the regular use of the insured or a member of his household. The general purpose of the exclusion clause is to prevent a situation in which members of one family or household may have two or more automobiles which are used interchangeably but with only one particular automobile insured. Couch on Insurance, 2d § 45,238. The construction of "non-owned automobile" clauses is governed by the rules used generally in the interpretation and application of contracts of insurance. Several courts have construed an exclusion clause in situations where the "other automobile" was owned by a relative in the same household and have denied coverage. Home Indemnity Co. v. Alday, 213 So. 2d 13 (Fla. App.1968); Cox v. Santoro, 94 N.J.Super. 319, 228 A.2d 101, aff., 98 N.J.Super. 360, 237 A.2d 491 (1967); Allstate Insurance Co. v. Chinn, 76 Cal. Rptr. 264, 271 Cal. App. 2d 274 (1969); Hamilton v. Maryland Casualty Co., 368 F.2d 768 (5 Cir. 1966); Goens v. Arinder, 248 Miss. 806, 161 So. 2d 509 (1964); 7 Am.Jur.2d, Automobile Insurance, § 107; 83 A.L.R.2d 926.
I can find but one case which is similar factually to this one, that is, where the "non-owned automobile" was furnished to the relative for the relative's use but was being driven by the insured at the time of the accident. In Farber v. Great American Insurance Co., 406 F.2d 1228 (7 Cir., 1969), Farber owned a Dodge and was covered by a policy which contained a "non-owned automobile" clause similar to the one in the policy here. At the time of his accident, he was driving a Chevrolet which was not owned by his wife, but which had been furnished for her use by her uncle. The Court, finding no ambiguity in the policy, concluded that the parties intended that no insurance coverage existed for accidents involving vehicles which were regularly used by the insured and his wife.[1]
It is difficult for me to admit that Arch Preston could drive almost any automobile in the world with the owner's permission and have insurance coverage, but is denied coverage when he drives, for the second time, according to his testimony, an automobile owned by a person who is not a member of the household, but which has been furnished to his married daughter *8 for her use, while she resides in his household, and awaits the return of her soldierhusband from overseas. But I must concede that the exclusion clause states that coverage does not apply to a non-owned automobile, "* * * (b) hired by or furnished or available to the named insured or relative for frequent or regular use * * *." (Emphasis added)
Many of the "non-owned automobile" clauses specifically state that a non-owned automobile shall not include one which is furnished to the insured or a relative for regular use. The policy here gives coverage in Insuring Agreement II for automobiles not owned by the insured or any relative residing in his household, and unquestionably the automobile Preston was driving at the time of the accident was not owned by him or by any relative residing in his household.[2] Nevertheless, the exception clause specifically limits the broad definition of a non-owned automobile which is contained in Insuring Agreement II. I cannot say that this giving of coverage and then taking it away creates a pitfall or ambiguity which would allow us to construe the policy provisions liberally in favor of the insured. Preston apparently was not attempting to get coverage on several cars by insuring only one. He had two policies on the two cars he owned. His use of the Magee car was very infrequent.
The result reached here appears to be hard, but the provisions of the policy are not ambiguous and we are not at liberty to change them. Therefore, I am persuaded that the cause must be reversed and remanded.
[1] The report of the case does not show how frequently Farber used the car furnished to his wife.
[2] The policy defines a non-owned automobile as follows:
"NON OWNED AUTOMOBILEunder Coverages A.B.C. and C-1 means an automobile or trailer not owned by the named insured or any relative, other than a temporary substitute automobile. Under Coverages D, D-1, E and F means a private passenger automobile, utility automobile or trailer not owned by the named insured or any relative, other than a temporary substitute automobile, while said automobile or trailer is in the possession or custody of the insured or being operated by him." | September 30, 1971 |
a4f9750e-5ae3-4175-b6ee-dedce1ec6615 | Ex parte Cody Lee Fulgham. | N/A | 1200357 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 16, 2021
1200357
Ex parte Cody Lee Fulgham. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Cody Lee
Fulgham v. State of Alabama) (Houston Circuit Court: CC-17-964;
CC-17-965; CC-17-966; CC-17-967; CC-17-968; CC-17-970; CC-17-971;
CC-17-972; CC-17-973; CC17-974; CC17-975; CC17-976; CC17-977;
CC-17-978; CC17-979; CC-17-980; CC17-981; CC17-982; CC-17-983;
CC-17-984; CC-17-985; CC-17-986; CC17-987; CC-17-988; CC-17-989;
CC-17-990; CC-17-991; CC-17-992; CC-17-993; CC-17-994; CC-17-995;
CC-17-996; CC-17-997; CC-17-998; CC-17-1000; CC-17-1001; CC-17-1002;
CC-17-1003; CC-17-1004; CC-17-1005; CC-17-1006; CC-17-1007; CC-17-1008;
CC-17-1009; CC-17-1010; CC-17-1011; CC-17-1012; CC-17-1013; CC-17-1014;
CC-17-1015; CC-17-1016; CC-17-1017; CC-17-1018; CC-17-1019; CC-17-1020;
CC-17-1021; CC-17-1022; CC-17-1023; CC-17-1024; CC-17-1025; CC-17-1027;
CC-17-1028; CC-17-1029; CC-17-1030; CC-17-1031; CC-17-1032; CC-17-1035;
CC-17-1038; CC-17-1039; CC-17-1040; CC-17-1041; CC-17-1042; CC-17-1043;
CC-17-1044; CC-17-1045; CC-17-1046; CC-17-1047; CC-17-1049; CC-17-1050;
CC-17-1051; CC-17-1052; CC-17-1053; CC-17-1054; CC-17-1055; CC-17-1056;
CC-17-1057; CC-17-1058; CC-17-1059; CC-17-1060; CC-17-1061; CC-17-1062;
CC-17-1063; Criminal Appeals :
CR-19-0237).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on April 16, 2021:
Writ Denied. No Opinion. Wise, J. -
Parker, C.J., and Bolin, Sellers, and
Stewart, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by
this Court or agreed upon by the parties, the costs of this cause are hereby
taxed as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as sam e appear(s)
of record in said Court.
W itness my hand this 16th day of April, 2021.
Clerk, Supreme Court of Alabama | April 16, 2021 |
be4ef184-0107-44c5-ad88-207a0afb0e10 | Edwards v. State | 253 So. 2d 513 | N/A | Alabama | Alabama Supreme Court | 253 So. 2d 513 (1971)
Harold Leon EDWARDS
v.
STATE of Alabama.
2 Div. 515.
Supreme Court of Alabama.
October 7, 1971.
Rehearing Denied November 4, 1971.
*515 Hubbard H. Harvey, Demopolis, for appellant.
William J. Baxley, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.
Valdhe F. Pitman, Oklahoma City, Okl., amicus curiae.
PER CURIAM.
The original opinion in this cause was withdrawn on rehearing and this opinion is substituted in place thereof.
Appellant was indicted in 1964 for murder in the first degree. He was tried, convicted, and sentenced to death. On appeal to this Court, his conviction was reversed and the cause remanded for a new trial. Edwards v. State, 279 Ala. 371, 185 So. 2d 393.
In April, 1967, appellant was again tried, convicted, and sentenced to death. It is from such conviction and judgment that this appeal is perfected, under the provisions of the Automatic Appeal Statute, Act No. 249, General Acts 1943, page 217; Title 15, Section 382(1) et seq., Code 1940, 1955 Cumulative Pocket Part, 1958 Recompiled Code of Alabama.
The facts in this case were succinctly stated on first appeal, Edwards v. State, supra, and in the companion cases of Eaton v. State, 278 Ala. 224, 177 So. 2d 444 and Coon v. State, 278 Ala. 581, 179 So. 2d 710, and we deem it unnecessary to reiterate the facts here.
On this appeal, appellant first contends that the record shows that he had been confined to a mental institution at some prior time in his life and that it was error for him to be brought to trial without first having been examined by a psychiatrist.
The only reference in the record to the appellant's confinement in a mental hospital is contained in the report of the investigation requested by the court as to the indigency of the appellant after trial and in connection with appointment of appeal counsel. That part of the record containing such report, which was dated June 15, 1967, was filed by the clerk of the circuit court in response to an order by this Court based on one of several petitions for certiorari to correct the record. That part of the indigency report pertinent here is as follows:
One of the defenses of the defendant was not guilty by reason of insanity. However, the defendant put no witnesses on the stand who testified that he was insane. Dr. C. E. Kimbrough, a physician of Linden, called as a witness for the State, expressed his opinion that the defendant was sane from his observation of the accused while treating him in the Marengo County Jail at Linden. There was no evidence to give the lower court sufficient doubt concerning his competence to stand trial as there was in Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815. The record does not show that Edwards filed any motion requesting an investigation of his mental condition other than in a petition for writ of certiorari (therein he moved the Court to issue a writ requiring the clerk of the lower court to correct the record by forwarding to this Court defendant's motion for psychiatric examination). In response to the *516 writ issued by this Court, the Clerk of the Circuit Court of Sumter County replied that there was no motion for psychiatric examination in the second trial. We must conclude from the Clerk's reply to the writ that no motion was made to determine the defendant's mental competence to stand trial after reversal of the case by this Court following the first trial.
Appellant's argument that the trial court committed error in forcing him to trial in Sumter County, Alabama, where it was allegedly impossible for him to get a fair trial, is unavailing. This Court fails to find in the record before it any motion pertaining to change of venue as provided for by Section 267, Title 15, Code 1940, Recompiled in 1958. However, defendant did file a petition for writ of certiorari for the Clerk to send up a motion for change of venue. The Clerk replied that there was no motion for a change of venue filed in connection with the second trial. It is axiomatic that an appellate court is bound by the record and cannot consider contentions in appellant's brief not supported by the record. Dannelley v. State, 130 Ala. 132, 30 So. 452; Walker v. State, 223 Ala. 294, 135 So. 438; Dockery v. State, 269 Ala. 564, 114 So. 2d 394. Thus this Court must conclude that no such motion was filed on the second trial.
In brief, it is argued that a confession was signed by the appellant without benefit of counsel; that it was error not to provide appellant with counsel before trial; and that it was error not to lay a proper predicate for the admission into evidence of the confession. There is nothing in the record to show that a signed confession was ever admitted into evidence on appellant's second trial. The following testimony of W. L. Stevens, an investigator for the State of Alabama, effectively disposes of appellant's contentions relating to any confession, to-wit:
Following this predicate, W. L. Stevens then testified as to the statements made by the appellant relating to events which transpired from the time he (appellant) entered the State of Alabama, in the company of three other individuals, until the time the four were apprehended in the State of Texas.
No request was made for a hearing outside the presence of the jury on the voluntariness of the confession. As was our conclusion in Lokos v. State, 278 Ala. 586, 179 So. 2d 714, under these circumstances, the requirements of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908, were not violated.
We have carefully considered the argument presented in the amicus curiae brief filed with the permission of this Court. Basically, the argument presented therein is to the effect that the appellant was inadequately represented by counsel at trial and on appeal. This Court is not prone to condemn the trial tactics of counsel in the absence of a clear showing of improper or inadequate representation. Such a showing is not evident here. As for the appeal to this Court, some delay in the prescribed procedures was necessitated by the incomplete record initially filed and the subsequent completion thereof. Counsel for the appellant cannot be held accountable for this problem. We find no such inadequacy of counsel for the appellant.
The following appeared in the original opinion in this cause which was later withdrawn:
On rehearing, the appellant presented strong argument pertaining to this court's treatment of the matter of the qualification of jurors concerning capital punishment. In its rehearing opinion, this Court recited that before submission a petition for certiorari to correct the record, alleging, among other things, that the transcript was incomplete pertaining to the proceedings concerning the qualification of jurors by the court on the matter of capital punishment, had been filed; that before submission pursuant to said petition a writ of certiorari was granted commanding the Clerk of the Circuit Court of Sumter County to make a diligent search of the records and procedure and to certify a full, complete transcript of the items mentioned in the writ, including the matter of the qualification of the jurors by the Court pertaining to capital punishment; and that instead of returning a full and complete transcript pertaining to this matter, the Clerk filed said certificate (which pertinent part appears in the heretofore-quoted part of the original opinion).
On April 8, 1971, upon reconsideration of this matter this Court held that such language in the certificate of said Clerk was not responsive to the writ; constituted an unacceptable conclusion; and was merely a narrative statement. The Court then withdrew its original opinion and directed the Clerk of this Court to issue a supplementary writ of certiorari requiring the Clerk of the Circuit Court of Sumter County to return to this Court a full, true and complete transcript of the proceedings pertaining to the qualification of the jurors concerning capital punishment. Thereafter, the Clerk of the Circuit Court of Sumter County filed a reply answer, which contained two instruments. One was a certificate from the official court reporter of the 17th Judicial Circuit of Alabama, in which she certified that she was present in the courtroom, took the testimony and all other proceedings in conjunction with the trial of this cause, and that there were no exceptions by the defendant to the qualification of the jury or she would have made a record of it. She further stated in her certificate that it was her recollection that no juror was challenged for cause because he or she did not believe in capital punishment.
Also attached to the return by said circuit clerk was an instrument which is set forth in full as follows:
In connection with the court reporter's certificate we have no alternative other than to interpret the certificate as meaning that the court reporter did not take down in shorthand or does not now have the shorthand notes available from which a transcript can be made pertaining to the qualification of the jurors.
Rule 25, Supreme Court Rules, (Title 7, Appendix, Code of Alabama 1940), contains the following:
Essentially the same language is found in Section 380, Title 15, Code 1940 (Recompiled in 1958), to-wit:
However, in 1963 the Legislature of this State enacted certain legislation concerned with the matter of transcripts for indigent persons, which possibly repealed said Section 380, of Title 15, supra, in part, by implication. Said legislation is codified as Section 380(14-25) of the Code of Alabama 1940 (Recompiled in 1958). A necessity for a full and complete transcript is emphasized in these sections as follows:
Section 380(18), Title 15:
Section 380(20), Title 15:
It is not necessary to make a determination of whether certain statutes and rules were repealed by said Section 380 (14-25), supra, because of a decision of the Supreme Court of the United States. The Supreme Court of the United States in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, stated the following:
This Court is of the opinion that it is implicit in the Witherspoon holding that a full and complete transcript adequate for the purposes of appellate review must contain the proceedings incident to the selection and qualification of the jurors pertaining to capital punishment. Therefore, in order to determine whether the requirements of Witherspoon are met, neither this Court nor the trial courts should give force to any statutory authority, rule of court, or prior decision of this Court which would authorize the omission from the transcript of that portion of the proceedings pertaining to the qualification of jurors concerning capital punishment.
In Liddell v. State, 287 Ala. 299, 251 So. 2d 601 (rendered after remandment on August 5, 1971) this Court reversed in connection with the Witherspoon doctrine and gave directions pertaining to a court reporter's duty as follows:
This Court now proceeds to consider the adequacy and correctness of the instrument which the Clerk of the Circuit Court of Sumter County, Alabama, attached as a part of his reply to the second writ of certiorari issued in this cause. This instrument shows that it was signed by the Judge of the 17th Judicial Circuit of Alabama and recites that it was filed on April 11, 1967, the day of the trial. A scrutiny of that instrument shows that it reflects six questions were asked of the jury venire. Peculiarly, the instrument reveals an answer to only one of those questions, that being Question 3 pertaining to the matter of capital punishment. Such an instrument is not normally prepared and filed in the Clerk's office. This instrument was not included in the original transcript and was forwarded to this Court only after several writs to bring up a full and complete transcript were issued. However, the instrument does show on its face that a question was asked pertaining to fixed opinions against capital punishment and no juror, special or regular, held up his hand in answer thereto.
In his brief, the attorney for appellant contends that several jurors were excused for their belief against capital punishment. However, this Court has held that facts argued in the brief of a party cannot be considered but instead the record must be followed. Walker v. State, supra, and Christian v. Reed, 265 Ala. 533, 92 So. 2d 881.
*521 The certificates of a trial court clerk which certify that instruments and a transcript are true and correct are accepted as the sole and conclusive evidence of the proceedings in the circuit court for purposes of appeal. See Morris v. State, 268 Ala. 60, 104 So. 2d 810, Patty v. State, 35 Ala.App. 247, 45 So. 2d 333.
Therefore, this Court is of the opinion that as an appellate court it has no alternative but to accept the adequacy and correctness of said instrument as showing that no juror answered in the affirmative pertaining to have a fixed opinion against capital punishment and no juror was excused on that ground.
Having carefully examined the entire record for any reversible error, whether assigned or not, (Section 389, Title 15, Code of Alabama 1940, Recompiled in 1958), it is our opinion that the judgment of the trial court should be affirmed.
Affirmed.
HEFLIN, C. J., and LAWSON, SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
[1] Said Rule 25 and Section 380 authorize the omission of proceedings from the transcript; however, they do not authorize the court reporter to refrain from taking shorthand notes or machine notes of such proceedings. | October 7, 1971 |
e110982e-7d04-427a-a140-6e1192a2b418 | Ex parte Vadarius Kushun Hall. | N/A | 1200130 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1200130
Ex parte Vadarius Kushun Hall. PETITION FOR W
RIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: Vadarius Kushun Hall v.
State of Alabama) (Dallas Circuit Court: CC-16-174; Criminal Appeals :
CR-18-1137).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, W
ise, and
Sellers, JJ., concur.
NOW
, THEREFORE, pursuant to Rule 41, Ala. R
. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R
. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
e91b7738-3fde-496f-8943-101b32f21079 | Coulter v. Holder | 254 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 254 So. 2d 420 (1971)
Wanda Gale COULTER
v.
Ruby G. HOLDER.
Billy Austin COULTER
v.
Ruby G. HOLDER.
8 Div. 402, 402-A.
Supreme Court of Alabama.
November 11, 1971.
*421 Ford, Caldwell, Ford & Payne, and Robert L. Hodges, Huntsville, for appellants.
Watts, Salmon, Roberts & Stephens, Huntsville, for appellee.
LAWSON, Justice.
On October 23, 1966, Wanda Coulter, then a minor, was riding as a passenger in an automobile being driven by Larry Patterson on Highway 87 in Madison County when it collided with an automobile being driven by Mrs. Ruby G. Holder.
There were two other passengers in the Patterson automobile, Brenda Coulter, Wanda's twin sister, and Larry Preston.
Wanda Coulter, suing as a minor through her father and next friend, filed a suit against Mrs. Holder to recover for personal injuries. Billy Austin Coulter, the father of Wanda and Brenda, filed suit against Mrs. Holder claiming damages for medical expenses incurred in behalf of his daughters and for loss of their services, companionship and society.
The complaint in each case contained a single count charging the defendant, Mrs. Holder, with negligence. In each case Mrs. Holder pleaded: "* * * in short by consent the general issue, with leave to give in evidence any matter which if well pleaded would be admissible in defense of the action, to have effect as if so pleaded." Issue was joined on said pleas and, by agreement, the two cases were consolidated for trial.
There was a jury verdict in favor of the defendant in each case. Judgments were rendered in accordance with the verdicts.
After their separate motions for a new trial were overruled, each of the plaintiffs on April 29, 1970, appealed to this court. The two appeals were submitted here on one record on April 27, 1971, without an order of consolidation.
The appeal of Billy Austin Coulter should have been taken to the Court of Civil Appeals since the "amount involved, exclusive of interests and costs," does not exceed $10,000. Act 987, approved September 12, 1969, Acts of Alabama 1969-70, Vol. II, p. 1744. The order submitting the appeal of Billy Austin Coulter to this court is vacated. The transcript of the record will be transferred by the Clerk of this court to the Court of Civil Appeals after disposition has been finally made by this court of the appeal taken by Wanda Coulter. This procedure is in accordance with the action taken by this court on July 14, 1971, in 6 Div. 851, Ruby B. Hamner v. Mutual of Omaha Insurance Company, a Corporation. See Supreme Court of Alabama Minute Book 122 at p. 322.
It appears from the address of the assignments of error that they were made "separately and severally," hence the rule that denies effect to joint assignments unless good as to all appellants would not be applicable even if there was more than one appellant in this court. See Elmore v. Cunninghame, 208 Ala. 15, 93 So. 814.
By an appropriate assignment of error, the appellant in this court, Wanda Coulter, asserts that the trial court erred in giving *422 at the request of the defendant below her written Charge Number Twelve, which reads:
Defendant's written Charge Number Twelve could have been refused without error in that it is not hypothesized on a finding "from the evidence." But we will not reverse for the giving of that charge if such is its only defect. In Locklear v. Nash, 275 Ala. 95, 152 So. 2d 421, it was said:
Patterson's negligence, if any, could not be imputed to Wanda Coulter, his guest passenger, as there is no proof that Wanda had any authority over the car's movement in any manner. Hamilton v. Browning, 257 Ala. 72, 57 So. 2d 530, and cases cited; Williams v. Pope, 281 Ala. 382, 203 So. 2d 105.
But one riding in an automobile driven by another, even though not chargeable with the driver's negligence, is not absolved from all personal care for his own safety, but is under the duty of exercising reasonable or ordinary care to avoid injury. Walker v. Bowling, 261 Ala. 46, 72 So. 2d 841; King v. Brindley, 255 Ala. 425, 51 So. 2d 870, and cases cited.
The trial court in its oral charge correctly instructed the jury as to the general principles alluded to in the last two preceding paragraphs.
But written Charge Number Twelve, given at the request of the defendant, is couched in different language and appellant says, in effect, that the trial court erred to reversal in giving that charge in that it is abstract because it is hypothesized on the jury's being reasonably satisfied that certain facts existed when the evidence adduced did not even warrant a reasonable inference of the existence of those facts.
An instruction based partly or entirely on a state of facts not appearing in the evidence has been held to be abstract. Humphrey v. Boschung (Ex parte Boschung and Garrison), 287 Ala. 600, 253 So. 2d 769; Pappas v. Alabama Power Co., 270 Ala. 472, 119 So. 2d 899; State v. Ingalls, 277 Ala. 562, 173 So. 2d 104; Allen v. Hamilton, 109 Ala. 634, 10 So. 903; Garrett v. Holloway, 24 Ala. 376.
We have said that the giving of an abstract charge, one hypothesized on facts which had no support in the evidence, does not constitute reversible error unless it appears from the whole record that the charge did in fact mislead the jury to the appellant's prejudice. Ex parte Boschung and Garrison, supra; Locklear v. Nash, supra; Robinson v. Crotwell, 175 Ala. 194, 57 So. 23.
But reversals have resulted where this court has determined from an examination of the record that the jury was misled because of the giving of such an abstract charge. Herring, Farrell & Sherman v. Skaggs, 73 Ala. 446; Beck v. State, 80 Ala. 1; Goldsmith v. State, 86 Ala. 55, 5 So. 480; Goldsmith & Davis v. McCafferty, *423 101 Ala. 663, 15 So. 244. See Lasseter v. King, 249 Ala. 422, 31 So. 2d 588. In the Skaggs case, supra, it was said:
We have reviewed the transcript of the evidence with care and are constrained to the conclusion that the evidence, when construed in the light most favorable to the defendant, appellee, does not support a reasonable inference that Wanda Coulter knew the Patterson automobile was being operated "in a negligent manner and at an excessive and reckless rate of speed," or that Wanda "had knowledge that so to drive was attended with great danger" or that she negligently "remained in the automobile without making any remonstrances" or that as a proximate result of Wanda's "negligence in thus riding in the automobile she received the injuries complained of, * * *."
In those respects Charge Twelve was abstract and, therefore, should not have been given. We have come to this conclusion fully aware of our holdings to the effect that an instruction is not subject to the objection that it is abstract when there is any evidence, however slight, on which to predicate it. Alabama Produce Co. v. Smith, 224 Ala. 688, 141 So. 674; Knowles v. Ogletree, 96 Ala. 555, 12 So. 397; Hair v. Little, 28 Ala. 236; Bradford v. Marbury, 12 Ala. 520.
We are also aware of the fact that several witnesses were examined in regard to points on pictures and drawings and these witnesses gave evidence which the jury could comprehend, but which we cannot because we do not have the pointing finger to designate the particular spot or point on the picture or drawing intended by the witness. But the evidence so adduced related to the claim of negligence of the defendant or the assertion of a contributory negligence on the part of Larry Patterson. It could shed no light on Wanda Coulter's conduct. Cf. Christian v. Reed, 265 Ala. 533, 92 So. 2d 881.
It has been pointed out by this court that inference, in legal parlance, as respects evidence, is a very different matter from supposition. The former is a deduction from proven facts, while the latter requires no such premise for its justification. Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 So. 414.
We see no occasion to delineate the evidence as it relates to the negligence, if any, of the defendant. For present purposes we will concede that there was evidence, although almost incredible, to the effect that immediately prior to the collision the Patterson automobile was traveling at a speed of from seventy-five to eighty miles an hour. This testimony was given by Stacy White, who was a passenger in the defendant's automobile at the time of the collision, and by the defendant. White based his estimate of the speed of the Patterson automobile as he viewed that automobile through the rear window of the defendant's automobile and his view was for only a few seconds. The defendant's testimony was even more remarkable. Her estimate of the speed was based on a glance which she made into her rear view mirror just a few seconds prior to the impact.
There is some evidence tending to show that there were a few residences near the intersection where the collision occurred.
*424 There is no evidence, in our opinion, which supports an inference that the plaintiff, Wanda Coulter, was aware of the fact that the automobile was proceeding at a rate of approximately seventy-five to eighty miles an hour. It is not shown that she looked at the speedometer and, furthermore, it is not shown that she had ever driven an automobile. As shown above, she had not reached the age where she could obtain a driver's license in this state. Furthermore, the evidence does not support a reasonable inference to the effect that Wanda Coulter had knowledge that the manner in which Larry Patterson was driving his automobile was attended with great danger and there is no evidence to support a reasonable inference that she "negligently" remained in the Patterson automobile.
The collision occurred shortly after the defendant drove her automobile from School Street, which runs north and south, into Highway 87 which, as we have heretofore shown, runs east and west. It occurred within a few seconds after the defendant's automobile was driven in a westerly direction on Highway 87. It is without dispute in the evidence that Larry Patterson, whose car was moving in a westerly direction on Highway 87, could not have seen the defendant's automobile until he was between 100 and 130 yards east of the intersection. There is no evidence that Wanda Coulter ever saw the defendant's automobile or that if she had seen it when it first entered Highway 87, any remonstrance or other conduct on her part could have prevented the collision.
Wanda Coulter was not asleep and was not riding in an automobile of the kind involved in the case of McDermott v. Sibert, 218 Ala. 670, 119 So. 681. Patterson was not drunk or drinking as far as the evidence shows, nor was his automobile overloaded. McGeever v. O'Byrne, 203 Ala. 266, 82 So. 508.
There is nothing in this case tending to show circumstances from which it can be reasonably inferred that Wanda Coulter should have anticipated that Patterson would enter a sphere of danger or omit to exercise due care. King v. Brindley, 255 Ala. 425, 51 So. 2d 870. We hold, as indicated above, there is no evidence or reasonable inference which could be based on the evidence, as we understand it, that Wanda Coulter by any act or failure to act caused the automobile in which she was riding, or the driver thereof, to collide with defendant's automobile. Williams v. Pope, 281 Ala. 382, 203 So. 2d 105; Bradford v. Carson, 223 Ala. 594, 137 So. 426.
We think the record shows beyond peradventure that Charge Twelve, given at the request of the defendant, did in fact mislead the jury to the prejudice of the plaintiff, Wanda Coulter. Ex parte Boschung and Garrison, supra. When the jury returned to the courtroom to announce its verdict, a juror stated: "I would like to make a statement before I tell what the verdict is. We unanimously agreed that there was negligence on the part of all parties, so we have agreed that we, the Jury, find in favor of the Defendant."
Appellee, the defendant below, filed a motion containing grounds to (1) strike the transcript of the evidence; (2) strike the transcript; (3) strike appellant's brief; and (4) dismiss the appeal.
The appeal was taken within six months from the judgment of the trial court denying the motion for a new trial. The motion for a new trial had been timely filed and the hearing thereon duly continued from time to time until the date on which the trial court finally overruled said motion. Consequently, the appeal was timely filed and the motion to dismiss the appeal is denied. T. R. Miller Mill Co. v. Ralls, 280 Ala. 253, 192 So. 2d 706.
The other grounds of the motion not raising jurisdictional grounds will not be considered in that appellee has made no *425 reference in her brief to the motion or to any ground thereof.
The judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | November 11, 1971 |
6496629a-bd81-48e7-a734-997dd2ec5746 | Willis v. James | 254 So. 2d 717 | N/A | Alabama | Alabama Supreme Court | 254 So. 2d 717 (1971)
Cecelia WILLIS, as Guardian of the Estate of Dorothy Ann James, a Non Compos Mentis
v.
William Hoyt JAMES, Robert D. James, et al.
1 Div. 667.
Supreme Court of Alabama.
November 18, 1971.
*718 Ernest M. Bailey, Fairhope, Michael J. Salmon, Mobile, for appellant.
Chason, Stone & Chason, Bay Minette, for appellees.
BLOODWORTH, Justice.
This case comes to us for the second time. On the first appeal, we reversed and remanded a final decree of the circuit court of Baldwin County, in equity, which had denied complainant the relief she prayed for and dismissed her bill. Willis v. James, 284 Ala. 673, 227 So. 2d 573 (1969).
After remandment, the case was again submitted to the court on the same pleadings, oral testimony, exhibits, and depositions as offered on the first trial. Additionally, the oral testimony of two other witnesses was offered by complainant. Respondents also offered the testimony of two other witnesses, as well as additional testimony from respondent William Hoyt James, ex-husband of the incompetent Dorothy Ann James.
The trial court again entered a final decree unfavorable to complainant. The decree found, inter alia: that respondents, Robert D. James and William Hoyt James, contracted for the purchase of the suit property, paid the consideration therefor, made repairs, and paid upkeep and taxes; that it was their intent to take title as sole grantees in one deed; that through mistake or inadvertence two deeds were prepared in which their wives were included as grantees; that there was a recognition of the trust by Dorothy Ann James and that she did not assert any legal title in her name adverse to the respondent, William Hoyt James; that the presumption of a gift to Dorothy Ann James has been overcome and that a resulting trust is established in favor of William Hoyt James in Dorothy Ann James' interest; that the complainant is not entitled to the relief prayed for in her amended bill of complaint but respondent, William Hoyt James, "is entitled to the relief prayed for in his answer"; and that Dorothy Ann James has no right, title or interest in the suit property.
It is from this final decree that complainant appeals. She contends that the decree is erroneous: in declaring and establishing a resulting trust because no cross-bill was filed praying for this relief; in holding that the proof was sufficient therefor; in not holding that laches and the statute of limitations bar the claim; in declaring that complainant was not entitled to any relief; and, in making the other findings.
We can see no good reason to be served by restating the facts of this case, as they were set forth in Mr. Justice Simpson's *719 opinion on the first appeal. See, Willis v. James, supra.
Suffice it to say, that the amended bill of complaint filed by the guardian of Mrs. James sought to set aside a mortgage given by Mrs. James, her husband, his brother and wife, to one L. Irwin, on October 11, 1958, on account of a lack of mental capacity in the incompetent at the time of execution of the mortgage.
The following is an excerpt from our opinion on the former appeal, viz:
This quotation clearly indicates that our holding was based on at least two conclusions: first, that the trial court erred in misapplying the law as to the burden of proof; second, that the trial court erred in finding the evidence to be sufficient to support a finding that Mrs. James was lucid on October 11, 1958.
It may be well here to state that several objections to questions were made during the course of the two trials to which the trial judge rejoined that he would make no rulings, since the case was being tried under the "equity rules." Therefore, we are bound, as was the trial judge, sitting in equity, to "* * * consider only such testimony and evidence as is relevant, material, competent and legal, * * *." Title 7, § 372(1), Code of Alabama 1940, as last amended.
As we have already said, we held on former appeal, "* * * the burden of proving that Mrs. James was sane in the interval in which the mortgage was executed devolved upon those asserting the validity of that instrument." We also announced that, "We have carefully read the record with a view to determining whether or not there was any evidence supportive of this fact. * * *" 284 Ala. at p. 677, 227 So.2d at p. 577. We concluded that opinion with the holding that the record "will simply not support such a finding."
Neither do we find on this appeal that the additional testimony (which is relevant, material, competent and legal) is sufficient to support a finding that Mrs. James was sane on the occasion of her execution of the mortgage on October 11, 1958. As a matter of fact, we think, when all the legal evidence is considered, it points to a contrary conclusion. Thus, we hold, as we did on former appeal, that the record "will simply not support such a finding," and that the purported execution by Mrs. James of the mortgage was void.
Respondents insist, however, that the trial judge has decreed: that the presumption of gift to Dorothy Ann James has been overcome and a resulting trust established in respondent William Hoyt James; that the intent of the James brothers was to take title as sole grantees; that the inclusion of their wives' names in the deeds was through mistake or inadvertence; and, that there was a recognition of the trust by Dorothy Ann James.
*720 Respondents argue in brief:
And, respondents contend she had no title because of a resulting trust having been established in William Hoyt James.
Without determining whether the evidence is sufficient to support such a finding, we think the error in the trial judge's adjudging a resulting trust lies in the fact that no cross-bill was ever filed seeking such relief. The trial court made its finding on the basis of the "relief prayed for in his [William Hoyt James'] answer." [Emphasis ours]
We have carefully examined respondents' "Answer to the Amended Bill." The only references therein which could be said to seek affirmative relief against Dorothy Ann James are these: a one sentence allegation in the body of paragraph "THREE":
And, an allegation in a clause in the body of paragraph "EIGHTEEN":
There is no characterization of the answer as being a cross-bill. There is no allegation making the complainant a party thereto. There is no prayer for process. There is no prayer for relief. There is a paucity of allegations to sustain the alleged resulting trust. Complainant filed no answer thereto. None of the parties nor the judge ever treated the "answer" as being a "cross-bill."
This court has held:
Again, in Marshall v. Rogers, 230 Ala. 305, 307, 160 So. 865, 866 (1935), this court, speaking on this subject through Mr. Justice Bouldin, held:
We must therefore conclude, on the basis of these authorities, that respondents' answer cannot be considered a cross-bill. By failing to file a cross-bill, respondents are not entitled to any affirmative relief (authorities, supra). Thus, there is no basis for that part of the decree which found a resulting trust.
As for the trial judge's finding that title was taken in the incompetent and her husband jointly, through mistake or inadvertence, there are two reasons why this finding is erroneous.
*721 First, the evidence in support thereof is anything but clear and convincing. In fact, it appears singular, to say the least, that the title to the property was taken in the parties jointly in January, 1952, yet no steps were ever taken by anyone to reform the deed, or to correct the alleged mistake. The matter remained in legal limbo until over fifteen years later on May 11, 1967, when respondents filed their answer. Thus, we find the evidence to be insufficient to overcome the presumption that in taking title as he did, the husband's intent was to make a gift to his wife. Marshall v. Marshall, 243 Ala. 169, 8 So. 2d 843 (1942).
Second, in order to secure such relief (assuming, arguendo, the evidence to be sufficient) a cross-bill would be required. We have already held the "answer" was no "cross-bill."
We are, of course, mindful of the authorities cited by respondents to the effect that a decree in equity on testimony taken ore tenus has the weight of a jury verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust. We have already discussed in detail why we think the trial court erred. Any further comments at this point would be repetitious.
Therefore, having concluded the complainant is entitled to the relief prayed for, namely, the cancellation of the mortgage of October 11, 1958 to L. Irwin and a declaration that it is null and void, it follows that the foreclosure of this mortgage and subsequent conveyances based upon its purported foreclosure are also null and void. Willis v. James, supra. To this extent, the decree is due to be reversed and remanded, with directions to the trial court to render a decree in conformity herewith.
In her amended bill, complainant prayed for partition of the land in question or, in the alternative, a sale for division. On the second trial of this cause, complainant proceeded upon the theory that the relief to which she is entitled is the reasonable rental value of the incompetent's one-quarter interest in the land for the period October 11, 1958 to the present or, in the alternative, from February 28, 1961, the date of the foreclosure deed, to the present.[1] Complainant says, in her brief, that "Subsequent to the filing of this bill this Court rendered a decision from which it follows complainant is not entitled to a partition or sale for division." While no case is cited for this proposition, appellees suggest, in their brief, that the case referred to is Bernhard v. Bernhard, 278 Ala. 240, 177 So. 2d 565 (1965).
In Bernhard, we held that there can be no sale for division in the case of a so-called "survivorship deed," over the objection of one tenant during the joint lives because the "interest in remainder" is not subject to division. (278 Ala. at p. 243, 177 So.2d at p. 567.)[2]
The deed in the present case, omitting the caption, acknowledgment and recording data, reads:
The question arises, What interest was created in these grantees by this deed? Put differently, Did the deed pass to the grantees fee simple title, or a tenancy in common during their joint lives with the remainder to the survivor in fee simple? In this connection we have said:
Applying these rules to the instant case, it seems clear that the parties are correct *723 in their interpretation that the deed here is a "survivorship deed," notwithstanding the granting clause does not expressly designate the estate conveyed. For, we have held that where a granting clause does not expressly designate the estate conveyed, but other clauses in the deed do indicate this estate, the latter clauses control. Henry v. White, supra. As we said in that case, in such a situation:
We conclude this discussion by saying we see no repugnancy between the granting and habendum clauses in the deed in the instant case. Though the deed is no model of the scrivener's art, we hold it established such an estate as is defined in Bernhard, supra.[3]
Since we hold the deed falls within the holding of Bernhard, "there can be no compulsory partition [or sale for division] in the absence of consent of the tenants, except in those cases where the tenants have invoked the jurisdiction of the equity court in a divorce proceeding with regard to the property in question." Summerlin v. Bowden, 286 Ala. 391, 393, 240 So. 2d 356, 358 (1970). [Emphasis ours]
Mrs. James' interest, then, is that of tenant in common with William Hoyt James during their joint lives, with remainder to the survivor in fee simple, in an undivided one-half interest in the real estate. This interest cannot be partitioned nor sold for division, in the absence of the consent of William Hoyt James and the complainant, Mrs. James' guardian.[4]
It may be that, on remandment, the parties may be able to resolve the issues as to the relief to be granted Mrs. James and will consent to a sale of her interest, less her proportionate share of pre-existing liens against the property. If not, the court will have to determine and mold the relief to which complainant may be entitled.
Suffice it to say, that the question of the relief to be granted complainant has neither been adequately presented nor briefed, nor does appellant cite any authority for her contention that the incompetent is due the reasonable rental value of the land for specified periods of time.[5]
Therefore, this cause is due to be reversed and remanded with directions to the circuit judge, sitting in equity, to render a decree cancelling, holding for naught, and declaring null and void, the L. Irwin mortgage of October 11, 1958, as well as the purported foreclosure and any subsequent conveyances resulting therefrom; to take additional testimony, if deemed necessary, so as to grant complainant the relief to which she may be legally entitled as a result of the cancellation of the aforesaid mortgage.
Reversed and remanded with directions.
HEFLIN, C. J., and COLEMAN, MADDOX and McCALL, JJ., concur.
[1] Presumably, this relief is sought under a prayer in the bill seeking an "accounting" of the profits from the real estate.
[2] The estate which is created by such a deed is defined in Bernhard v. Bernhard, 278 Ala. at page 243, 177 So.2d at page 567, as being "* * * a tenancy in common during the joint lives of the tenants with a remainder to the survivor in fee simple. * * *" Since Bernhard, this court has considered, and rendered opinions in, at least four other cases involving "survivorship deeds": Owens v. Owens, 281 Ala. 239, 201 So. 2d 396 (1967); Killingsworth v. Killingsworth, 284 Ala. 524, 226 So. 2d 308 (1969); Summerlin v. Bowden, 286 Ala. 391, 240 So. 2d 356 (1970); Shrout v. Seale, 287 Ala. 215, 250 So. 2d 592 (1971).
[3] See Note 2, supra, which defined such an interest.
[4] We do not decide whether there may be partition or sale for division between Robert D. James and wife, Flossie D. James, on the one part, and William Hoyt James and complainant, the guardian for Dorothy Ann James, on the other part, since this is not an issue on this appeal.
[5] See Dawson v. Thorpe, 47 Ala.App. 215, 252 So. 2d 331. | November 18, 1971 |
0332d320-7cf6-42d9-906f-6a2b434f8047 | Ex parte Anthony Stanley. | N/A | 1200018 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1200018
Ex parte Anthony Stanley. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: Anthony Stanley v. State of
Alabama) (Colbert Circuit Court: CC-05-608.60; Criminal Appeals :
CR-18-0397).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 19, 2021:
Writ Denied. No Opinion. Parker, C.J. -
Bolin, Shaw, Bryan, Sellers,
Mendheim, Stewart, and Mitchell, JJ., concur. Wise, J., recuses herself.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 19th day of March, 2021.
Clerk, Supreme Court of Alabama | March 19, 2021 |
b6c109d9-6bb0-4f49-87bb-2d836cf6fdc3 | DELCHAMPS, INCORPORATED v. Stewart | 255 So. 2d 592 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 592 (1971)
In re DELCHAMPS, INCORPORATED
v.
Claudia STEWART.
Ex parte Claudia STEWART.
1 Div. 717.
Supreme Court of Alabama.
December 16, 1971.
Richard Bounds, Cunningham, Bounds & Byrd, Mobile, for petitioner.
Peter V. Sintz, Foreman, Brown & Hudgens, Mobile, opposed.
COLEMAN, Justice.
Petition of Claudia Stewart for Certiorari to the Court of Civil Appeals to review and revise the judgment and decision of that Court in Delchamps, Inc. v. Stewart, 47 Ala.App. ___, 255 So. 2d 586.
Writ denied.
HEFLIN, C. J., and BLOODWORTH, MADDOX and McCALL, JJ., concur. | December 16, 1971 |
ef689591-a752-4ef9-92ec-a9e63c7e1bb9 | Metzger Brothers, Inc. v. Friedman | 261 So. 2d 398 | N/A | Alabama | Alabama Supreme Court | 261 So. 2d 398 (1971)
METZGER BROTHERS, INC., a Corporation
v.
Samuel A. FRIEDMAN and Lowell Friedman, Individually and as Partners.
1 Div. 662.
Supreme Court of Alabama.
December 30, 1971.
Rehearing Denied April 20, 1972.
*400 Holberg, Tully & Hodnette and Howell, Johnston, Langford & Finkbohner, Mobile, for appellant.
Sam W. Pipes, Gordon B. Kahn, Mobile, for appellees.
BLOODWORTH, Justice.
Appellant, Metzger Brothers, Inc., appeals from an adverse judgment rendered in the circuit court of Mobile County, in favor of appellees, the Friedmans. Suit was originally filed by Samuel A. Friedman, individually. Subsequently, the complaint was amended to add Lowell Friedman (his son and partner) as a party plaintiff. In the amended complaint, plaintiffs (appellees) Samuel A. Friedman and Lowell Friedman, individually, and as partners, charged defendant, Metzger Brothers, Inc., Melvin A. Metzger, Albert W. Metzger, Leonard H. Metzger (these individuals being officers, directors and stockholders of Metzger Brothers, Inc.), Mrs. Louise Overall Hollinger, and Miss Mary Elizabeth Arnold, with four counts of trespass quare clausum fregit, and one count of conspiracy to commit trespass quare clausum fregit. There was a verdict and judgment for appellees Friedmans against Metzger Brothers, Inc., a corporation, appellant, in the amount of $133,000, from which judgment appellant appeals to this court.
The facts of this case are somewhat complicated and are in dispute. Since substantially those facts most favorable to the plaintiff must have been accepted by the jury, as reflected by its verdict, we will state the facts in this light.
The Friedmans and Metzger Brothers occupied adjoining places of business on Dauphin Street in Mobile, Alabama. The Metzger Brothers' building fronted on Dauphin Street for approximately 75 feet, though at that time the business itself occupied only a third of the property, the remaining two-thirds being rented out. Metzger Brothers is a retail clothing business. The Friedmans rented space for their jewelry business in the adjoining building, then owned by Mrs. Louise Overall Hollinger and Miss Mary Elizabeth Arnold. The space leased by the Friedmans was approximately 12 feet wide and 60 feet deep. The Metzger building and the Hollinger-Arnold building were divided by a party wall, which was over 120 years old according to the testimony.
*401 During 1958, Metzger Brothers was engaged in making plans for the demolition of its existing building and the construction of a new building at the same location. Before December of 1958, Metzger Brothers notified Hollinger and Arnold that it would remove its building from the land on which it stood and construct a new building in such a manner that the party wall would be affected.
In consequence of this notice, on December 15, 1958 Hollinger and Arnold advised the Friedmans in writing that they considered it necessary to enter the Friedmans' premises to make repairs, construction or reconstruction, particularly to remove the west wall (the party wall) and replace it. The Friedmans were notified that such work would be commenced on or about February 1, 1959, and completed without unnecessary delay, and that during this time there would be constructed a temporary partition on their leased premises. They were further notified that the work would be done at the Friedmans' own risk as to their goods, wares, fixtures and stock, and that the Friedmans should take such steps as they deemed necessary to protect the same from theft or damage.
On January 27, 1959, Samuel Friedman replied to Hollinger and Arnold, in writing, advising them that removal of the west wall would damage his property and business on the leased premises, and that he did not consent to the work, but expressly objected thereto. Further, he wrote that he would personally hold the landlords liable for any damages he might suffer. (Hollinger and Arnold contended their right of entry was in accordance with the provisions of the lease between the Friedmans and themselves.) In his reply, Samuel Friedman denied the work was in accordance with the provisions of the lease.
Several attempts were made between the Metzgers and their attorney, on the one hand, and the Friedmans and their attorney on the other, to reconcile their differences so as to secure the Friedmans' permission to enter upon their leased premises.
On December 10, 1958, Metzgers entered into an agreement with Hollinger and Arnold relative to the party wall and the proposed demolition and construction of its new building. This agreement recited that the party wall was insufficient to support the proposed building to be erected by Metzgers and that Metzgers would remove its existing building, as well as the party wall and reconstruct the party wall entirely on its property with Hollinger and Arnold's building being given an easement of support in the new wall. The plans called for a temporary wall to be built, before the party wall was removed, which temporary wall would protrude from 9 to 17½ inches into the Friedmans' store. The Metzgers were given six months to commence the work and eighteen months within which to prosecute the same to conclusion, all the work to be done at its expense. This agreement between Metzgers and Hollinger and Arnold was made subject to the rights of the Friedmans under the terms of the Friedmans' lease with Hollinger and Arnold.
Though Metzgers attempted to obtain the Friedmans' agreement to the Hollinger and Arnold agreement, these efforts were unsuccessful. During the period of time that these negotiations were under way, the architect for Metzgers went ahead with plans for demolition of the old building, and with the construction of the new one. In the beginning, these plans had indicated the party wall would remain, but this was changed when Metzgers' architect came to the conclusion, after further consideration, that the party wall could not withstand the pile driving that was going to be necessary to construct the new building. 147 steel piles were to be driven into the ground as support for the building. This was deemed necessary due to the water table being approximately one foot below the surface of the soil at that point in downtown Mobile. Therefore, the plans were changed to provide *402 for the removal of the party wall and the construction of a new wall entirely on Metzgers' property.
It thus became apparent to Metzgers that it was not going to be able to obtain an agreement with the Friedmans for entry upon their leased property, and the removal of the party wall. It seems that Metzgers concluded it could not properly shore up the party wall, if it were left standing, without going into the Hollinger-Arnold building and onto Friedmans' leased premises. Some of the testimony is to the effect that Metzgers' architect was of the opinion the existing wall might fall down and kill workmen or other people inside the building because of the pile driving which would be undertaken when construction was commenced. Nevertheless, it appears that Metzgers' architect told Metzgers to go ahead and proceed to tear down and expose the wall. There is some testimony on the plaintiff's side to the effect that Metzgers had been told by its architect that the wall was unsafe and would likely be condemned.
On January 30, 1959, Metzgers let the contract for demolition of the existing building to Freeman Wrecking Company. On February 1, 1959, it let the contract for construction of its new building to J. F. Pate Construction Company. At some point during this period of time, Metzgers' negotiations with the Friedmans were turned over to Metzgers' attorney, Mr. Tully. When he was unsuccessful in obtaining the agreement of the Friedmans, it seems that Metzgers decided to go ahead with the demolition of its building, the tearing down of the party wall, and construction of a new party wall irrespective as to whether the Friedmans agreed or not. Thus, as a part of the Metzgers' agreement with Hollinger and Arnold, Metzgers agreed to indemnify the landlords against any claims of the Friedmans, and even agreed to pay their attorneys' fees, as well as paying the rent during the time work was being performed in the building. There is also evidence to the effect that Metzgers agreed to indemnify Pate for participating in the demolition. Pate, however, denies that it had any part in the demolition, contending that was the work of Shaw Freeman, or Freeman Wrecking Company.
It appears to be clear that plans calling for removal of the party wall were made prior to December 10, 1958. The Hollinger and Arnold written notice directed to the Friedmans and dated December 15, 1958, refers to removal of the party wall. This was two months before it was determined by the city that the wall should be condemned. Viewing the evidence most favorably to the appellees, it also appears that demolition of the Metzgers building was begun a week or ten days before February 26, 1959, the date of the city's condemnation order.
Again, the tendencies of the evidence most favorable to the appellees indicate that prior to the commencement of the demolition, the party wall's condition was good, being fully capable of supporting the loads then imposed upon it, and could continue to serve for 30 years. Before the condemnation, the demolition contractor had removed primarily the third floor of the Metzgers building, and part of the next floor. Floor and roof joists were removed from the party wall in this process. There is evidence that a lot of plaster had been knocked off the party wall on the Friedmans' side, and while it is not clear that this was due to the demolition, this might be inferred by the jury from the evidence. One of the Metzgers testified by deposition that before the condemnation occurred, he and his architect went up to inspect the party wall when the third floor was being partly taken down. It may be inferred from his testimony that the party wall was being torn down at that time.
During the time from the commencement of the demolition to February 26, 1959, Metzgers' architect called on the city building inspector to come and inspect the wall. This occurred on six different occasions, *403 as more of the wall was exposed during demolition of the building. Finally, after the sixth inspection, the city building inspector declared the party wall to be unsafe and condemned it, ordering the Friedmans to vacate the premises while the wall was being removed from the building. This notice was dated February 26, 1959.
According to the testimony of Samuel Friedman on the day before the condemnation, February 25, 1959, he met with Metzgers' attorney, Mr. Tully, and Albert Metzger. When these final negotiations proved futile, he testified that, "Mr. Tully and Albert got up and shook his finger in my face and said you'll see what we will do * * *." This is denied by Metzgers' witnesses. It was the next morning the city building inspector came out, condemned the wall, declared the building unsafe, and ordered the Friedmans to vacate the building immediately.
After the condemnation, Metzgers served notice on the Friedmans that it was designated as Hollinger and Arnold's contractor for the purpose of removing the wall. On February 27, 1959, the Friedmans were notified by the landlord of the condemnation.
The Friedmans closed their store the same day they received notice from the city building inspector, moved their entire fixtures and stock of trade out of the premises to another location, thereafter removing to a third location. Subsequently, the Friedmans returned and reopened their store in April, 1960 at the location on Dauphin Street in the Hollinger-Arnold building.
The original complaint in this case was filed on December 9, 1959. The trial of this cause was delayed for ten years due to various pending declaratory judgment suits filed against several insurance companies on the equity side of the court. This law action was stayed until these cases were disposed of. Two of these suits have heretofore been before this court. Metzger Brothers, Inc. v. Royal Indemnity Co., 274 Ala. 643, 151 So. 2d 244 (1963), and Ex parte Royal Indemnity Company, 279 Ala. 80, 181 So. 2d 894 (1966).
The amended complaint on which trial was had, contained five counts. Four counts charge trespass quare clausum fregit. The fifth count charges conspiracy to commit trespass. Various pleas were filed by defendants, Metzger Brothers, Inc., Melvin A. Metzger, Albert W. Metzger, and Leonard H. Metzger, as well as defendants Louise Overall Hollinger and Mary Elizabeth Arnold. These pleas were amended from time to time. In essence, the amended pleas were to the effect that the Metzger defendants entered the premises under a license from defendants Hollinger and Arnold, as their contractor, under the terms of their lease with Samuel Friedman to make repairs and to do such work as they deemed necessary or proper, or as they should lawfully be required to make. To the pleas, the Friedmans filed several replications. These replications also were amended from time to time. In substance, the amended replications were to the effect that defendants in going upon the leased premises exceeded any rights or permission given them under the lease by willfully or wantonly causing the leased premises to be condemned as unsafe. The Metzgers and the other defendants joined issue on the replications.
In his oral charge, the trial judge set out the substance of the five counts, the amended pleas, and the amended replications. In substance, the trial judge charged the jury that if the defendants proved any one or more of their pleas to the jury's reasonable satisfaction, that would be a complete defense to the counts of the complaint unless the plaintiffs could prove their replications to the jury's reasonable satisfaction. The court concluded that if the plaintiffs could prove their special replications to the jury's reasonable satisfaction, though the pleas be true, the defendants exceeded their rights by willfully or wantonly causing the premises to be condemned, and plaintiffs might recover. Further, the jury was charged by *404 the judge that the damages claimed in this case were both compensatory and punitive, and that plaintiffs, if entitled to damages, might be entitled to both. The only exception taken to the oral charge was by the defendants who excepted to the court's defining the words "general contractor" under the Alabama statutes.
The jury returned a general verdict finding only appellant Metzger Brothers, Inc., to be liable and assessing the damages at $133,000. Judgment was entered accordingly, and it is from this judgment that appellant appeals.
For purposes of argument, appellant has condensed its assignments of error and motions for new trial into five categories. In the interest of brevity, and for perhaps a clearer understanding of the questions to be considered, we will utilize this categorical approach.
The first category concerns the refusal of appellant's request for the affirmative charge. At the conclusion of appellees' evidence, appellant requested the affirmative charge with hypothesis alleging that appellees had failed to introduce any evidence to show a trespassory act. The trial court refused to give the affirmative charge and appellant insists that, in the light of the insufficiency of evidence of trespass, this ruling constitutes error.
Unfortunately for appellant, we are precluded from a consideration of the merits of this assignment of error by a failure of the appellant to comply with Rule 9(b), Revised Rules of the Supreme Court of Alabama, 279 Ala. XXVI. Rule 9(b) provides as follows:
Although appellant urges the insufficiency of the evidence, it has failed to give a condensed recital of the evidence in narrative form. The record in this case consists of 956 pages. It includes the testimony of thirteen witnesses and 161 exhibits. Appellant's "STATEMENT OF FACTS" consists of seventeen pages, although only eight pages are actually devoted to a purported condensed recital of the evidence in narrative form. No attempt was made to summarize the testimony of seven of the thirteen witnesses. The testimony of the other six witnesses was recited in a somewhat perfunctory manner and tended to state only those aspects of the testimony favorable to appellant. None of the witnesses' testimony was set out in designated paragraphs, but all the testimony was dealt with collectively in a general discussion. We do not consider this to be a compliance with the rule.
Appellant urges, in a reply brief, that Rule 9(b) requires a condensed recital only of that testimony which it considers has "bearing on the points in issue," and that appellant has substantially complied with the rule in that the testimony omitted had no bearing on what appellant considered to be the issues in this case. Appellant introduces its summarization with the statement, "Appellant now summarizes the testimony as to the condition of the wall at the time of its condemnation." Whether this is a correct interpretation of the rule we do not now decide, but we think that the complexity of the issues in this case precludes our concluding that the sufficiency of the evidence with respect to the condition of the party wall at the time of condemnation is the only issue before us requiring compliance with Rule 9(b).
*405 We regret that we are forced to dispose of the complex question as to whether there was a trespass in this fashion. However, we consider that any other result would be tantamount to a complete nullification of Rule 9(b), and would be in direct contradiction to well established case law. See, Runge v. Mercantile Credit Corporation, 285 Ala. 183, 230 So. 2d 240 (1970); First Methodist Church of Union Springs v. Scott, 284 Ala. 571, 226 So. 2d 632 (1969); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Crestman, 277 Ala. 410, 171 So. 2d 119 (1965); 2A Ala.Dig., Appeal & Error, Key 766.
We do note that, before submission, appellant sought, by motion filed in this court, to amend its original brief to set out the testimony of each witness in narrative form. This motion was denied by the court.
We conclude, therefore, that appellant has failed to comply with Supreme Court Rule 9(b), and that this failure constitutes a waiver of those assignments which urge the insufficiency of the evidence.
The second category of error argued by appellant charges error in the trial court's oral charge to the jury in which Sec. 65, Title 46, Code of Alabama 1940, defining a "general contractor," was read to the jury. Under the lease between appellees and Hollinger and Arnold, the landlord retained the right to enter on the premises for purposes of repair either in person or through their designated contractor. Appellant was appointed by Hollinger and Arnold as their "contractor" for purposes of tearing down the party wall. Appellant's several assignments of error complain that this part of the oral charge was "misleading and contrary to the law * * * and inapplicable to the factual situation." Appellant contends in brief that this portion of the charge conveyed to the jury a misleading impression of the lease and had the effect of submitting to the jury the interpretation of the terms of the lease when those terms were not ambiguous.
We agree with appellant that it is the duty of the court, and not the jury, to "analyze and determine the meaning of a contract * * * when its terms are clear and certain * * *." Air Conditioning Engineers v. Small, 259 Ala. 171, 176, 65 So. 2d 698, 703 (1953). However, we cannot agree that the court's reading of the statutory definition of "general contractor" in its oral charge amounts to submitting to the jury the interpretation of the terms of the lease. Even assuming, arguendo, that reading the statutory definition in the oral charge might be erroneous, it is well settled, under the decisions of this court, that the court's oral charge must be considered as a whole, and if the charge as a whole states the law correctly, there is no reversible error even though a part of the charge, when considered alone, might be erroneous. New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25 (1962), reversed on other grounds, 84 S. Ct. 710, 376 U.S. 254, 11 L. Ed. 2d 686, Ann. 95 A.L.R.2d 1412. In view of our conclusion that there is no reversible error in this part of the oral charge, we pretermit considering appellees' contention that the same was not properly excepted to.
The third category of error concerns the failure of the trial court to grant a discontinuance of the cause when the complaint was amended to change the suit from one by Samuel A. Friedman, individually, to one by Samuel A. Friedman and Lowell Friedman, individually, and as partners. Appellant contends that the amendment works a complete change in the cause of action in that it substitutes a cause of action accruing to a partnership for one accruing to an individual. The sole authority cited in support of this contention is Alabama Construction Co. v. Watson, 158 Ala. 166, 48 So. 506 (1908).
In the latter case, a suit on an account and for work and labor done was filed by one Watson alleging that he had performed work and labor for defendant and that defendant owed him a certain sum. Subsequently, Watson amended alleging *406 that the work and labor was actually performed by himself and one Harrison acting as partners, but that he had later purchased Harrison's share of the partnership. The court held the amendment worked a complete change in the cause of action.
Watson is readily distinguishable on its facts from the case at bar. Amending allegations of a contract made with one person to allegations of a contract made with two persons may work such a departure from the original complaint as to constitute an entirely new cause of action. But this is no authority for the contention that amending a complaint containing allegations of a trespass to property leased by one person to allegations of trespass to property leased jointly by the original plaintiff and another person constitutes such a change in the cause of action. In Watson, the change was in the cause of action sued on. There is no such change in the instant case, merely the addition of a joint owner as plaintiff.
Appellant's argument further overlooks the well established rule of law in Alabama that,
Title 7, § 141, Code of Alabama 1940, permits a partnership to be sued at law. "But the provisions of § 141, Title 7, supra, do not apply to plaintiffs so associated." Rose v. Beckham, 264 Ala. 209, 212, 86 So. 2d 275 (1956).
In light of these rules, it is clear that the amendment could not, as contended for by appellant, have the effect of substituting a partnership for an individual as plaintiff. The amendment merely added Lowell Friedman as a party plaintiff in his individual capacity as joint owner of the business and joint lessee of the premises. This is permissible under our amendment statute Sec. 239, Title 7, Code of Alabama 1940.
The case of Birmingham Gas Co. v. Sanford, 226 Ala. 129, 145 So. 485 (1933), involved a similar situation. There, the plaintiff sued for injury to real property and subsequently amended to add his wife as joint owner. The court held:
Appellant also contends that the statute of limitations had run before Lowell Friedman was added and therefore he could not recover. But, our cases hold that, under our amendment statute, an amendment adding a party plaintiff relates back to the commencement of the suit and the added plaintiff's action is not barred by the statute of limitations if the original suit was not barred. Crumly v. City of Birmingham, 244 Ala. 634, 15 So. 2d 273 (1943); Birmingham Gas Co. v. Sanford, supra; 13A Ala.Dig., Limitations of Action, Key 124.
We conclude, therefore, that the assignments of error argued in category three have no merit.
The fourth category of assignments of error rests on the contention that the jury returned an inconsistent verdict. Appellant contends that the verdict is inconsistent in two respects. First, appellant says that there is an inconsistency in holding *407 the appellant corporation liable but exonerating all the servants and agents of the corporation through whom the acts complained of would have to be performed. Since appellant is a corporation, its liability, of course, must rest on the principle of respondeat superior. Appellant contends that appellant's liability could only be based on acts performed by the defendants Leonard Metzger, Melvin Metzger or Albert Metzger, and that the verdict in favor of all these named defendants, but against appellant corporation is inconsistent and should be set aside.
We agree with appellant that, "* * * where the master and servant are sued jointly, a judgment against the master absolving the servant of liability for tort committed by the servant is inconsistent and must be set aside. * * *" American Southern Ins. Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 55, 151 So. 2d 783, 785 (1963).
However, there is a well established exception to this rule to the effect that,
The record in the present case would indicate that there were various individuals other than the three individual Metzgers who were employed by appellant corporation. J. F. Pate was employed by appellant as a building contractor; Benson was employed by appellant as their architect; Shaw Freeman was employed by appellant to demolish the existing structure including the condemned wall; Albert Tully acted as legal counsel on behalf of appellant during negotiations. None of these individuals were made defendants to the suit and hence are not within the rule of American Southern Ins. Co., supra.
Whether a person is an agent or not is a question for the jury, unless the evidence is so conclusive that there is not even a scintilla from which the jury could draw an opposite inference. Connors-Weyman Steel Co. v. Kilgore, 202 Ala. 372, 80 So. 454 (1918); 14 Ala.Dig., Master and Servant, Key 284(1). Appellant's failure to comply with Rule 9(b) precludes an inquiry into the sufficiency of the evidence as to this aspect of the case. Therefore, we cannot say that there was not sufficient evidence from which the jury could conclude that some one or more of these individuals acted as agents, servants, or employees of appellant corporation, and that they did some, or all, of the acts complained of as the basis of the cause of action. In light of this conclusion, we cannot say the verdict is inconsistent.
Secondly, appellant insists that the verdict is inconsistent in exonerating Hollinger and Arnold while holding appellant liable, since in doing all the acts complained of appellant was merely acting as agent or servant of Hollinger and Arnold. This contention is without merit in that it is based on the unwarranted assumption that appellant was acting throughout in the capacity of such agent or servant.
Our cases hold that unless the evidence upon the question as to whether the relationship of master and servant existed is conclusive, one way or the other, the question is for the jury. Louisville & N. R. Co. v. Chamblee, 171 Ala. 188, 54 So. 681, Ann.Cas.1913A, 977 (1911); 14 Ala.Dig., Master and Servant, Key 284(1). We conclude that this question was properly submitted to the jury and that the jury's verdict is not inconsistent.
In category five of the assignments of error, appellant contends that the amount of damages awarded was so excessive *408 as to require reversal of the judgment. We find no merit in this contention. As this court said, in Carlisle v. Miller, 275 Ala. 440, 444, 155 So. 2d 689, 692 (1963):
Furthermore, as this court stated in Vest v. Gay, 275 Ala. 286, 154 So. 2d 297 (1963):
Appellee in this suit claimed punitive, as well as compensatory damages, and the trial court charged the jury with regard to the conclusions they must reach in order to award punitive damages. In light of this fact, the reluctance of this court to substitute its judgment for that of the trier of the facts (notwithstanding we might opine the jury gave too much), and the attendant presumption favoring the jury's verdict, we are unwilling to say that the damages awarded were excessive.
Let the judgment of the trial court be affirmed.
Affirmed.
HEFLIN, C. J., and COLEMAN, MADDOX and McCALL, JJ., concur.
HEFLIN, Chief Justice (concurring):
On June 7, 1971, there was presented to this court a motion by the appellant to allow it to amend its brief so that the appellant's brief would comply with Rule 9 (b), Revised Rules of the Supreme Court of Alabama, 279 Ala. XXVI. This court voted to deny the appellant's motion. The majority of the court felt that the motion came too late since the appellees had already filed their brief, as well as a motion to affirm judgment because of the failure of appellant to comply with Rule 9(b). I voted to grant this motion. I was motivated by a philosophy that cases should be determined on merits rather than on technicalities. In my opinion, the amending of the brief at that time (which was before submission) would not have produced an unjust hardship on the parties or this court.
Act No. 964, Acts of Alabama, 1971 Regular Session, approved September 7, 1971, conferred broad "rule-making power" on the Supreme Court of Alabama and directed it to adopt a new system of rules to govern procedure on appeals for the purposes of simplifying appeals and of promoting the speedy determination of litigation in the appellate courts on the merits of the cases. To assist in carrying out this function, this court appointed an advisory committee to recommend to the court a new system of rules concerning appellate practice. It is my hope that such advisory committee and the Supreme Court will carefully review Rule 9(b), as well as other existing rules, decisions, and statutes which prevent decisions on the merits.
However, until said Rule 9(b) is changed, I feel I must follow the decisions of this court which support the treatment given Rule 9(b) in this case. Therefore, I concur in the opinion of Justice BLOODWORTH.
BLOODWORTH, Justice.
Appellant has filed an application for rehearing. Appellant contends again that its original brief did comport with Rule 9(b), Revised Rules of the Supreme Court of Alabama, 279 Ala. XXI, XXVI, requiring a condensed recital of the evidence given by each witness in narrative form bearing on the points in issue. We think we fully answered this contention in our original opinion. However, in view of earnest insistence of able counsel, we will add that we have re-examined our holding and we fail to see how the brief can be considered to be in compliance with Rule 9(b), when it sets out some, but not all, of the witnesses' evidence, in narrative form, bearing on the point as to the sufficiency of the evidence to support the trespass counts, and wholly fails to set out any such evidence as to the conspiracy count.
Then, appellant urges that we reconsider, and change, our ruling (made before submission) when we denied the appellant's motion to amend its original brief in order to set out the testimony of each witness in narrative form. Appellant contends that when this court considers the sufficiency of the evidence to support the trespass counts, it will find the evidence to be insufficient, and the cause would be reversed.
Appellant cites numerous cases for the proposition that "deficiencies and errors in Appellant's Appeal" can be corrected up to the time of submission of the case. However, all of the cases appellant cites are instances where this court permitted supplemental transcripts to be filed prior to submission in order to correct omissions in the original transcript. None of these cases has any bearing on the question as to whether supplemental briefs may be filed prior to submission to correct omissions or errors in the original brief.
Moreover, there are two cases which are clearly in point on this issue. The first is the recent case of Kinsaul v. Florala Telephone Company, 285 Ala. 16, 228 So. 2d 777 (1969), in which this court concluded as follows:
The other case is Piper Ice Cream Co. v. Midwest Dairy Products Corp., 279 Ala. 471, 187 So. 2d 228 (1966). The pertinent portion of that decision is as follows, viz:
While both of these cases dealt with deficiencies with regard to Rule 9, the deficiencies were sought to be corrected in a "reply" brief, rather than in a "supplemental" brief. But, we see no valid distinction between the two with respect to whether the motion to file the "supplemental" brief should be granted in this case.
To like effect is the recent case of Allen v. Axford, 285 Ala. 251, 231 So. 2d 122 (1969). There, we held the filing of copies of the transcript on submission of the cause, under Rule 40, Revised Rules of the Supreme Court, 279 Ala. XXI, XL, could not supply a deficiency in the original brief in failing to set out a recitation of the testimony of each witness in narrative form as required by Rule 9.
Several observations this court made in the opinion in Allen v. Axford, supra, are pertinent here.
A majority of the court in consultation is convinced that the cases, which we have cited, clearly show this court is committed to the rule that Rule 9(b) deficiencies in an original brief may not be corrected by way of reply or supplemental brief.
We might say that we did not intend, by our language in Albright Equipment Co. v. Waddell, 284 Ala. 329, 224 So. 2d 878, to suggest any different rule from that reflected in our decisions just mentioned.
The reason that Rule 9(b) requires a condensed recital of the evidence in narrative form is self-evident in the case at bar, in which the transcript consisted of 956 pages, 13 witnesses testified, 161 exhibits were offered, and the issues are complicated and involved.
We are yet of the opinion and view that our original decision was correct.
Opinion extended; application for rehearing denied.
HEFLIN, C. J., and COLEMAN, MADDOX and McCALL, JJ., concur. | December 30, 1971 |
12cd3a06-bdfc-4038-a874-1df552a560a1 | Beecher v. State | 256 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 256 So. 2d 154 (1971)
Johnny Daniel BEECHER
v.
STATE of Alabama.
7 Div. 846.
Supreme Court of Alabama.
October 7, 1971.
After Remandment December 9, 1971.
Rehearing Denied January 13, 1972.
*156 J. Allen Lee, and Joe M. Dawson, Scottsboro, for appellant.
MacDonald Gallion, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
PER CURIAM.
On June 15, 1964, Johnny Daniel Beecher, a convict, who may hereinafter be referred to as "defendant," "appellant," or "Beecher," escaped from a road crew in Jackson County while the crew of convicts was building a fence near the right-of-way of a highway. The place from which the defendant escaped was about eight-tenths of a mile from the home of Mr. and Mrs. Raymond Chisenall who lived in the Fabius community. Mrs. Chisenall's body was found the next day, some distance from her home, in a shallow hole covered with dirt and leaves. Her feet and hands were tied. *157 She was gagged and blindfolded. Expert testimony and other evidence revealed that she met her death by manual strangulation and that she had been raped.
While fleeing from Tennessee police officers near South Pittsburg, Tennessee (which is located near the State line which separates Jackson County, Alabama and the State of Tennessee), Beecher was shot in the leg by a rifle bullet and arrested during the early morning of June 17, 1964. He was carried to a hospital in South Pittsburg and given first aid treatment. Evidence depicted his condition when he arrived at the hospital as being in a great amount of pain, he having sustained a gunshot wound in his leg which shattered his tibia. He was given injections of morphine, one intravenously and one intramuscularly.
His leg was not set at the Tennessee hospital, but splinted so he could be transported by ambulance to Kilby Prison Hospital near Montgomery where he received treatment for his leg that day. Later his leg was amputated.
On July 29, 1964, the Grand Jury of Jackson County, Alabama returned an indictment against the defendant. He was tried on a count charging him with the first degree murder of Martha Jane Chisenall, found guilty, and sentenced to death. On appeal, this Court affirmed that judgment on October 6, 1966. Beecher v. State, 280 Ala. 283, 193 So. 2d 505.
Thereafter, defendant filed in the Supreme Court of the United States a petition for certiorari to review the opinion and judgment rendered by this Court. The Supreme Court of the United States granted certiorari and on October 23, 1967 reversed the decision of this Court. Beecher v. Alabama, 389 U.S. 35, 88 S. Ct. 189, 19 L. Ed. 2d 35.
On January 18, 1968, defendant was again indicted by the Grand Jury of Jackson County, Alabama, for murder in the first degree of Martha Jane Chisenall.
On January 20, 1969, the Circuit Court of Jackson County, Alabama, heard testimony on the defendant's Motion for Change of Venue. The transcript of the evidence taken at said hearing indicates that the State, either before or at the time of the hearing, nolle prossed the original indictment pending against the defendant. At the conclusion of the hearing, the court granted the Motion for Change of Venue, changing the situs of the trial to Cherokee County, Alabama, and scheduling arraignment for January 22, 1969, in the Circuit Court of Cherokee County, Alabama. Defendant was duly arraigned at the appointed time on the indictment of January 18, 1968, and entered pleas of "Not Guilty" and "Not Guilty by Reason of Insanity." Trial of the cause was set for February 4, 1969.
On February 4, 1969, immediately prior to the commencement of trial, the defendant filed motions seeking to have the court permit the examination of jurors individually, in groups of six, and in groups of twelve, respectively, outside the presence of the other jurors. The lower court granted the motion to examine the jurors individually, but not outside the presence of the other jurors; overruled the motion to examine the jurors in groups of six; and granted the motion to examine the jurors in groups of twelve.
At the conclusion of the trial of the cause on February 5, 1969, the jury returned a verdict of guilty and imposed the death penalty. Judgment and sentence on the same date were in accord with the verdict of the jury.
This appeal is perfected under the provisions of the automatic appeal statute applicable in cases where the death penalty is imposed. Section 382(1) et seq., Title 15, Recompiled Code 1958; Act No. 249, Gen. Acts 1943, p. 217.
The defendant was represented in the trial below by three court appointed attorneys. He is represented on this appeal by one of the same attorneys, as well as by an additional attorney who did not participate in the trial. All attorneys involved in the trial and this appeal were appointed by the trial court.
*158 The defendant's contention in brief complains of alleged error on the part of the trial court in admitting into evidence the testimony of Dr. William L. Headrick, Jr., the physician who treated the defendant shortly after his apprehension in Tennessee, concerning inculpatory statements allegedly given by the defendant to Dr. Headrick at the time of said treatment. The defendant argues that the alleged confession was inadmissible because "* * * (1) the confession was given involuntarily; (2) the confession was given while the defendant was in the custody of the police or otherwise deprived of his freedom by the authorities and was subjected to questioning without being advised of his constitutional rights as provided for in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, and later United States Supreme Court cases."
The rule is well-established that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial judge to determine whether or not a confession is voluntary, and unless it so appears, it should not be admitted. Duncan v. State, 278 Ala. 145, 176 So. 2d 840; and cases therein cited.
A confession is involuntary unless it is "the product of a rational intellect and a free will." Blackburn v. State of Alabama, (1960) 361 U.S. 199, 208, 80 S. Ct. 274, 280, 4 L. Ed. 2d 242; Davis v. State of North Carolina, (1966) 384 U.S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895. It is not the product of a rational intellect and a free will if the petitioner's will to resist confessing is overborne. Rogers v. Richmond, (1961) 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760. An accused's will can be overborne by pressures engendered by physical or psychological coercion (Rogers v. Richmond, supra) or insanity (Blackburn v. Alabama, supra). These principles were reiterated in the case of Townsend v. Sain, (1960) 372 U.S. 293, 307, 83 S. Ct. 745, 754, 9 L. Ed. 2d 770, wherein the Supreme Court of the United States stated the following:
Notwithstanding these comments by the United States Supreme Court, we understand its holding in Townsend v. Sain, supra, to be limited to two propositions: Did Townsend's petition for habeas corpus allege a deprivation of his constitutional rights? Was the District Court required to hold an evidentiary hearing to determine these constitutional questions? Both questions were answered in the affirmative by the court.[1] and [2] It did not establish any novel standard relating to the admissibility of confessions.
Townsend's petition was based upon allegations: that at the police station he became ill from the withdrawal of narcotics and was administered scopolamine (hyoscine) and phenobarbital, combined, by a police physician; that the drug scopolamine has the properties of a "truth serum," and that the injection produces a physiological and psychological condition adversely affecting the mind and will; that this state removes one from reality, one is not able to see or feel properly, one loses one's ability to withstand interrogation, and produces a physiological and *159 psychological state susceptible to interrogation resulting in confessions; and that the injection in this case caused him to confess. Townsend also alleged the police doctor willfully suppressed this information and the identity of hyoscine and scopolamine. The respondents admitted that Townsend was entitled to relief if the allegations of his petition are taken to be true.
In the course of its opinion the Supreme Court, in Townsend, simply reiterated heretofore established standards governing the admissibility of confessions into evidence stating that if one's "will was overborne" or if one's confession was not "the product of a rational intellect and a free will," one's confession is coerced and inadmissible. The opinion then concluded that these standards are as likewise applicable "whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a druginduced statement." (372 U.S. at page 307, 83 S.Ct. at page 754.)
Nevertheless, we do not see that the court, in its holding, has articulated any new, different, or unique standards relating to confessions except to say existing standards apply to drug-induced statements. So, we must judge the confession in the instant case by the existing standards of voluntariness.
This brings us to a consideration as to whether the statement Beecher made to Dr. Headrick meets these standards of voluntariness.
A hearing was conducted outside the presence of the jury on the question of the voluntariness of the confession given by defendant to Dr. Headrick at the South Pittsburg, Tennessee, hospital in accordance with Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908. During the course of such hearing Dr. Headrick testified as follows:
At this hearing on the voluntariness of this confession (outside of the presence of the jury) the defendant testified that he remembered nothing after the doctor gave him a shot, that the effect of the morphine put him at ease; "it kinda made me feel like I wanted to love somebody; took the pain away; made me feel relaxed"; and, that the morphine did not make him unconscious, stating morphine doesn't make you unconscious. He further testified that he doesn't know if he acted normal or not, since he did not remember talking with the doctor after the shots, and that his mind was a blank after the shot.
Dr. Headrick also testified that the dosage of morphine administered was not enough to alleviate all of defendant's pain, stating he still had pain when they tried to move him; that he was trying to make him comfortable and to relieve his pain.
Dr. Headrick, after the lower court ruled that the confession was admissible, and during the presentation of his testimony to the jury, testified that the morphine would not affect Beecher's mental capacity in any way, unless he became unconscious, stating if he had an overdose, respiration would be affected and he would be unconscious. The doctor testified that he did not give him an overdose and Beecher did not become unconscious.
This is no station house interrogation by police officers as was the case in Townsend, supra. In fact, it is not clearly established that the doctor even questioned defendant. In one instance, the doctor related: "I am not exactly sure if I asked him specific questions but he told me quite a bit about it. "In another place, the doctor indicated: "I think I asked him why he did it." All this was in the course of treatment of the gunshot wound in the presence only of defendant, the doctor and his nurse,[3] and, *161 after the doctor had also given him food, water and cigarettes. Further the doctor stated he had made no arrangements with the authorities to question defendant.[4]
It seems to us that this case bears little factual resemblance to Townsend v. Sain, supra, where a truth serum was allegedly injected into a defendant at the station house by a police surgeon before questioning by police officers.
In Townsend v. Sain, supra, the drug administered to Townsend was shown to have been a combined dosage of 1/8 grain of phenobarbital and 1/230 grain of hyoscine. It was alleged that it had not been disclosed that hyoscine is the same as scopolamine or that the latter is familiarly known as "truth serum." On appeal in that case the Supreme Court of the United States stated:
The defendant has made no allegation nor presented any evidence in the case under review tending to classify morphine as a "truth serum," nor tending to show that morphine produces the same effects as a "truth serum." Further, Dr. Headrick testified extensively, in answer to questions propounded by counsel and the court, as to the dosage, mode of administration, and effects of morphine on this defendant. There is nothing in the record that satisfies this court that the administering of morphine in this case either overbore "defendant's will" or that his confession was not "the product of a rational intellect and a free will."
*162 We are of the opinion that the able trial judge correctly ruled that the confession given by the defendant to Dr. Headrick in the emergency room, considered independently, meets the test of voluntariness subscribed to in this State, as well as that proscribed by Federal constitutional provisions.
The defendant further argues that the confession given to Dr. Headrick was involuntary and inadmissible in evidence, based on what the Supreme Court of the United States said in Beecher v. Alabama, supra, relative to confessions allegedly given by the defendant before and after the confession in question. The defendant argues: that the Supreme Court of the United States held the confession allegedly given by the defendant, at the time of his apprehension by Tennessee police officers, was a product of "gross coercion"; that the confession given some five days later in Kilby Prison hospital to State investigators was also involuntary because there was "no break in the stream of events"[5] from the time of the first alleged confession until the confession at Kilby Prison; that therefore the confession allegedly made to Dr. Headrick, in the interim and within an hour after the defendant's apprehension in Tennessee, was made at a time when there was also "no break in the stream of events," and was therefore involuntary and inadmissible.
During the first trial of this cause, the State introduced evidence tending to show that the confession given by the defendant to State investigators in Kilby Prison hospital was voluntary. No refutative evidence was offered by the defendant. The trial court found the confession to be voluntary. It was only on the hearing on the motion for a new trial that the defendant testified as to coercive acts of the arresting Tennessee police officers at the time of his apprehension and alleged first confession. The State offered no evidence on the hearing of the motion for a new trial to refute the defendant's contentions. In that state of the record, the Supreme Court of the United States rendered its decision in Beecher v. Alabama, supra, based on what that court referred to as "uncontradicted facts" pertaining to "gross coercion" (in the words of that court) at the time of arrest. In that opinion the court found the admission of the confession at Kilby Prison required a reversal.
In the trial from which this appeal is perfected, the lower court heard testimony, outside the presence of the jury, presented by the State tending to show the voluntary nature of the confession allegedly given by the defendant to Tennessee authorities at the time of his arrest. This evidence showed that after Beecher was shot, he told Chief of Police Dick Burroughs of South Pittsburg, Tennessee, his name was Johnny Beecher and he was the man they were hunting in Alabama.
The defendant thereafter took the stand (outside the presence of the jury) to testify as to the circumstances attendant to his apprehension and alleged confessions. His testimony was essentially similar to that given at the hearing on motion for a new trial. The defendant contended that he was shot in the leg; that he fell to the ground; that the Chief of Police came up with a gun in his hand and asked, "Why did you kill that white woman?"; that the Police Chief placed the pistol on his nose; that another law officer fired a rifle by the side of his ear; that he then admitted raping and killing Mrs. Chisenall.
Police Chief Dick Burroughs, South Pittsburg, Tennessee, generally refuted the defendant's version of the circumstances surrounding his confession. He denied asking defendant why he killed the white woman. The police chief said the other officer did fire the rifle but only to signal the defendant's capture. Although he was not sure about the position of the rifle, Beecher was more than two or three feet *163 away when the rifle was fired; and the rifle was "not down right at the head of the defendant." He also denied making any threats to the appellant. Chief Burroughs testified he did not put a pistol on defendant's nose, nor did anyone else.
The State did not offer this confession in evidence, but the trial judge did admit the confession to Dr. Headrick. Prior to the trial judge's ruling allowing the Dr. Headrick confession to go to the jury, defense attorneys assigned the "no break in the stream of events" contention as an objection. From the record it is clear that the trial judge considered this contention. The "no break in the stream of events" contention was buttressed by so-called "uncontradicted" facts in the first trial, but in this trial this was not true. This court holds that the "no break in the stream of events" contention in this instance is without merit.
The defendant's second major contention is that the confession allegedly made to Dr. Headrick was inadmissible for failure of the authorities to comply with the requirements of Miranda v. Arizona, supra.
What this court said in Truex v. State, 282 Ala. 191, 210 So. 2d 424, wherein the defendant had made an inculpatory statement to a Mrs. Kendrick without the benefit of the so-called Miranda warnings, is dispositive of the defendant's contentions herein:
See also Anno.: "What Constitutes `Custodial Interrogation' Within Rule of Miranda v. Arizona Requiring That Suspect Be Informed of His Federal Constitutional Rights Before Custodial Interrogation," 31 A.L.R.3d 565, and particularly the cases under Section 26 entitled, "Doctors or Nurses," starting on page 669.
In response to the defendant's Motion for Change of Venue, the lower court, after a hearing on the motion in open court, granted said motion, changing the situs of the trial from Jackson County to Cherokee County, Alabama. The defendant, in the assignment of error, contends that the failure of the lower court to grant the change of venue to a more remote county constituted error prejudical to the defendant.
On an application for a change of venue, and on granting the motion for removal, the trial court must decide what is the nearest county free from objection. Section 267, Title 15, Recompiled Code 1958; Patterson v. State, 234 Ala. 342, 175 So. 371, cert. den. Patterson v. State of Alabama, 302 U.S. 733, 58 S. Ct. 121, 82 L. Ed. 567.
The lower court conducted an extensive examination of numerous witnesses in seeking to determine if the defendant could obtain a trial in Jackson County, Alabama, free from prejudice. In its examination, the lower court heard evidence not only as to any prejudice existing in Jackson County, but also as to prejudicial effects, if any, in nearby counties to which radio, television and newspaper coverage extended. The mere fact that such publicity has been dispersed does not, in itself, mean that a defendant cannot get a fair trial. Mathis v. State, 283 Ala. 308, 216 So. 2d 286, reversed as to death sentence on other grounds and remanded to Supreme Court of Alabama for further proceedings, 403 U.S. 946, 91 S. Ct. 2278, 29 L. Ed. 2d 855. Mrs. Chisenall met her death *164 on June 15, 1964. The order moving the trial to Cherokee County, which is not an adjoining county to Jackson County, was dated January 20, 1969. We are of the opinion that the lower court did not abuse its discretion in granting the change of venue from Jackson County to Cherokee County, Alabama.
During the course of the trial, three black and white photographs were introduced into evidence by the State. The photographs depicted the deceased's body as first discovered, on a stretcher after removal from the shallow grave, and in the coroner's office, respectively. Each of the photographs met the test of having some tendency to prove or disprove a disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evidence offered or to be offered, and was not improper. Baldwin v. State, 282 Ala. 653, 213 So. 2d 819.
The lower court permitted, over the defendant's objection, the State Toxicologist to testify concerning the condition of the deceased's genital area. Such evidence, in addition to being part of the res gestae, tends to shed light on the acts, motive and intent of the defendant at the time of the offense and was properly admitted. Smarr v. State, 260 Ala. 30, 68 So. 2d 6; Garner v. State, 269 Ala. 531, 114 So. 2d 385.
The defendant's contention that the statements made to Dr. Headrick and related by the latter in his testimony are privileged is without merit. As communications to physician or surgeon by a patient or one seeking professional advice are not privileged under common law, no such privilege exists in Alabama, in the absence of a statute creating it. Dyer v. State, 241 Ala. 679, 4 So. 2d 311. There is no such statute in Alabama.
The lower court overruled the defendant's motions to examine the jurors individually and in groups of twelve respectively, outside the presence of the other jurors. This was without error. Jurors may be qualified on voir dire in groups at the discretion of the court. Seals v. State, 282 Ala. 586, 213 So. 2d 645; Aaron v. State, 273 Ala. 337, 139 So. 2d 309, cert. den. 371 U.S. 846, 83 S. Ct. 81, 9 L. Ed. 2d 82. The defendant was not entitled to examine each prospective juror outside the presence of the other jurors. Seals v. State, supra.
The defendant assigns as error his removal from Tennessee to Alabama without first having been taken before a magistrate in Tennessee and without having signed a waiver of extradition as required by law. The transcript of the evidence shows that the defendant did sign a waiver of extradition prior to being removed from the State of Tennessee. Further, the testimony of Dr. Headrick tends to show that, at the time the defendant signed the waiver of extradition, his (the defendant's) mental faculties were in no sense impaired to the extent that he was not cognizant of what he was doing. We fail to find any infringement of the defendant's constitutional rights, State or Federal, in the procedure followed relative to his removal from Tennessee to this State shortly after his apprehension.
Mindful of our duty in cases where the death penalty is imposed, we have reviewed the entire record thoroughly for error, whether assigned or not. We have commented herein on most of the numerous assignments of error set forth by the defendant. The others we find to be palpably without merit and pretermit any discussion thereof.
A majority of the justices concur in the above opinion, namely, SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ.
HEFLIN, C. J., and LAWSON, J., dissent.
However, a majority of the Justices are of the view that because of the impact of *165 recent decisions of the Supreme Court of the United States, this case must be remanded to the lower court for further proceedings as herein set forth. Chief Justice Heflin and Justice Lawson concur in the view that this case must be remanded, though adhering to their conclusions that this judgment should be reversed, their conclusions in this regard being set forth in the dissenting opinion of Chief Justice Heflin.
We note that the record does not contain a transcript of the proceedings when the jury venire was qualified. Therefore, we are unable to determine whether the jury which convicted Beecher was constitutionally selected. The appellant does not discuss in brief on appeal any infirmity in the jury qualifying process.
Previously, this court would not normally review the question of the qualifications of the jurors unless an objection was made to the procedure, or unless an allegation was made in a post-conviction proceedings that the procedure was constitutionally irregular and prejudicial, making the imposition of the death penalty impermissible.
In Mathis v. Alabama, 403 U.S. 946, 91 S. Ct. 2278, 29 L. Ed. 2d 855, Mathis had been convicted and sentenced to death. His conviction was reviewed by this court and affirmed (280 Ala. 16, 189 So. 2d 564 (1966)). The Supreme Court of the United States denied certiorari (386 U.S. 935, 87 S. Ct. 963, 17 L.Ed.2d 807). Mathis thereafter filed a petition for Writ of Error Coram Nobis in the Circuit Court of Coffee County, and although he alleged several grounds of error with regard to the selection of the trial jury, he made no claim of error with regard to the qualification of the jury pertaining to their opinions as to capital punishment. This court affirmed the trial court's denial of Mathis' Writ of Error Coram Nobis (283 Ala. 308, 216 So. 2d 286 1968)). Mathis then filed a petition for certiorari to the Supreme Court of the United States wherein he claimed for the first time that the jury venire was not qualified properly and in accordance with the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776. The Supreme Court of the United States granted the Writ and reversed the judgment insofar as it imposed the death sentence. 403 U.S. 946, 91 S. Ct. 2278, 29 L. Ed. 2d 855. Only a memorandum opinion was issued by the United States Supreme Court, citing Witherspoon, supra; Maxwell v. Bishop, 398 U.S. 262, 90 S. Ct. 1578, 26 L. Ed. 2d 221; Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433.
In accordance with the mandate of the Supreme Court of the United States, this court remanded the cause to the lower court with instructions to conduct a hearing to determine whether or not those jurors who had stated that they had "fixed opinions" against capital punishment could nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty.
As we interpret the action of the Supreme Court of the United States in Mathis, supra, it would appear that implicit therein is that the constitutional validity of a jury imposing the death penalty can be raised for the first time in a petition for certiorari to the Supreme Court of the United States.
Both the original trial record and the record on appeal of the Writ of Error Coram Nobis in the Mathis case were silent as to whether jurors may have been excused because of their opinion about capital punishment. The record in this case, as before stated, is likewise so silent. Therefore, we find ourselves in the position of being aware that the Supreme Court of the United States will not permit the imposition of the death sentence unless an affirmative showing is made in the record that the requirements of Witherspoon have been met. This court has already recognized that in view of the Witherspoon doctrine, trial courts should make certain *166 in capital cases that the court reporter takes full notes from which a transcription can be made of the examination of prospective trial jurors, (Liddell v. State, 287 Ala. 299, 251 So. 2d 601, decided August 5, 1971). It would undoubtedly prove futile if at this time we should not notice the absence in this record of an affirmative showing that the jury was properly qualified under Witherspoon as to their opinions in regard to imposing a death sentence.
We conclude that we should not order the sentence of death to be executed until we are satisfied that the jury which imposed the sentence of death was properly and constitutionally selected.
Accordingly, this case is remanded to the Circuit Court of Cherokee County with instructions that a hearing be conducted with the appellant and his attorneys present, and that the court determine first whether any jurors were challenged because of their affirmative answers to a general question as to a fixed opinion against capital punishment, and that if any such jurors were so challenged because of their affirmative answers to a general question as to a fixed opinion about capital punishment, that such jurors be summoned and examined.
This examination of any challenged jurors should be directed toward determining whether or not the challenged jurors would have, in view of their affirmative answers as to having fixed opinions against capital punishment, nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty, if they, being the triers of fact were convinced of the guilt of the accused, and that the facts warranted a sentence of death.
The court is further instructed that this hearing be conducted as speedily as is feasible, that a full record be made thereof, a transcript of such record be made, together with the court's conclusions from the evidence adduced, and that a transcript of these proceedings under the seal of the clerk be promptly forwarded to this court.
The prisoner will remain in custody until discharged by the due process of law.
Affirmed conditionally and remanded for further proceedings.
HEFLIN, C. J., and LAWSON, SIMPSON, HARWOOD, and MADDOX, JJ., concur in the remandment of this case.
MERRILL, COLEMAN, BLOODWORTH and McCALL, JJ., would affirm without remandment.
HEFLIN, Chief Justice (dissenting):
I must respectfully dissent from the portion of the majority opinion concerning the admissibility of the confession. The defendant was given ¼ of a grain of morphine intravenously (directly into the bloodstream) and ¼ of a grain intramuscularly before he confessed. He was in a great deal of pain when he arrived at the hospital. The doctor testified that his leg was nearly shot off. It is obvious from evidence that Mr. Beecher was in a serious physical condition and under the influence of morphine when the confession was given.
I differ with the majority opinion in its interpretation of the holding in Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770. In my opinion this case extends to narcotic affected confessions the principle that a confession is involuntary unless it is "the product of a rational intellect and a free will" (Blackburn v. State of Alabama, 361 U.S. 199, 80 S. Ct. 274, 4 L.Ed.2d 242). While Townsend v. Sain, supra, may not articulate a new, different and novel standard, it helps to clarify an area of confused thinking pertaining to the admissibility of confessions when narcotics are involved. In very clear language it holds that the requisite voluntariness of a confession is not established if the evidence only satisfies the "coherency" standard. *167 The fact that the defendant was mentally coherent at the time he confessed is not sufficient. As I interpret this case not only must mental coherency be established but all aspects of narcotic influence must be considered before a confession is accepted as the "product of a rational intellect and a free will".
At first glance, one could be misled by the opinion in Townsend v. Sain, supra, to believe the only reason the Supreme Court of the United States remanded the cause for an evidentiary hearing in the habeas corpus proceeding was because of the possibility that the "truth serum" had been used to procure the confession. However, there were other reasons for the requirement of such evidentiary hearing on remandment, one of which was that the record in and the opinion of the Illinois Supreme Court in People v. Townsend, 11 Ill. 2d 30, 141 N.E.2d 729, 69 A.L.R.2d 371 (the direct appeal State opinion involved in Townsend v. Sain, supra) did not reveal indicia that the Illinois courts applied the proper standard of federal law in ruling upon the admissibility of the confession in that case.
In reviewing the evidence in the instant case in its most favorable light for the State, it merely showed that the defendant knew what he was talking about; knew the meaning of what he said; realized what he was saying; and the morphine did not affect his mental capacity. In comparing this with the evidence in People v. Townsend, supra, the conclusion is inescapable that the evidence was far stronger for the establishment of a prima facie case of voluntariness in that case than in the instant case. The following summary of the evidence concerning the influence of drugs appears in People v. Townsend, supra:
The Supreme Court of the United States in Townsend v. Sain, supra, was not convinced that the proper federal standard of voluntariness was satisfied by expert testimony that the drugs would not cause "an impairment of mental condition", or "that defendant's use of drugs would not have caused an impairment of his mental processes." Likewise, it is obvious that the proper federal standard of voluntariness cannot be satisfied from the testimony of Dr. Headrick. It must be concluded that expert testimony to the effect that a drug did not cause an impairment of the mental process or have any effect on mental capacity merely goes to establish "coherency" and there must be further evidence that the confession was the product of a rational intellect and a free will in all aspects before it is admissible.
Testimony directed towards the effect of narcotics in connection with resistance to confessing or willingness to confess is essential. The words of Justice Goldberg in his concurring opinion in Townsend v. Sain, supra, aid in explaining the type of proof required:
The following language of Justice Frankfurter in Culombe v. Connecticut, 367 U.S. 568, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 was helpful to a federal district court in reaching its decision in Logner v. State of North Carolina, 260 F. Supp. 970, where a druginfected confession was involved:
Explaining a portion of the holding in Townsend v. Sain, supra, the Supreme Court of California, speaking through the language of Chief Justice Traynor in In Re Cameron, 68 Cal. 2d 487, 67 Cal. Rptr. 529, 535, 439 P.2d 633, 639, stated:
In connection with the matter of drugs, mental conditions, states of mind, confessions and other related matters, see article by Leon M. Despres entitled, Legal Aspects of Drug-Induced Statements, 14 U. of Chicago L.Rev. 601; article styled Medication As A Threat To Testamentary Capacity by David J. Sharpe, 35 N.Carolina L.Rev. 380; and article captioned Intoxicated Confessions: A New Haven in Miranda? by Ozro William Childs IV, 20 Stanford L. Rev. 1269. See also Annotation: "Use or Administration of Drugs or Narcotics as Affecting Admissibility of Confession", 69 A.L.R.2d 384. However, it must be realized that many state cases cited therein have been indirectly overruled by Townsend v. Sain, supra.
In analyzing the standard that must be followed by federal and state courts alike, pertaining to narcotic-affected confessions, it is necessary that not only must there be sufficient proof that defendant possessed a "coherent" mental condition at the time of confessing, but the state must also establish that the confession was "the product of a rational intellect and a free will" (Blackburn v. Alabama, supra), or stated another way, in the language of Justice Frankfurter in Culombe v. Connecticut, supra, "the product of an essentially free and unconstrained choice of its maker", by evidence which shows that the defendant's will to resist confessing was not overborne. Rogers v. Richmond, 365 U.S. 534, 81 S. Ct. 735, 5 L. Ed. 2d 760.
These standards are stated in broad general terms, for each confessionary act must be judged on its own peculiar set of circumstances. When narcotics are involved the following may have relevance: euphoria (a feeling of well-being or elation), loss of anxiety, loss of inhibitions, loss of resistance to free expression, etc. On the other hand, willingness to confess may be controlled by other tendencies, unrelated and unaffected by the narcotic. Many individuals are motivated by religious backgrounds or remorseful attitudes which militate toward free expression following unusual stressful experiences. The motivation to purge one's soul of an awesome conscience-hurting experience often compels a confession. Certainly inquiries before the trial judge should include the following which are listed numerically but without intended priority:
While the above list of inquiries is certainly not comprehensive, I hope that, nevertheless, they provide some insight to the problems in this area. I am of the opinion that a trial judge must look to all relevant factors, whether attendant to the influence of the drug or not, and give due consideration and weight to such in reaching his determination of the involuntariness or voluntariness of any alleged confession, bearing in mind that the burden of proof is on the State.
Possibly the majority opinion may be understood as holding that the drug aspect of Townsend v. Sain, supra, applies only to a "truth serum" drug. If so, such would be clearly erroneous. In reversing the first appeal case pertaining to a confession allegedly made by the defendant Beecher in Kilby Prison some five days after his arrest in Tennessee while being interrogated by State investigators following an injection of morphine, the Supreme Court of the United States stated, among other things, in Beecher v. Alabama, 389 U.S. 35, 89 S. Ct. 189, 19 L. Ed. 2d 35 that at the time of the alleged confession Beecher was still in pain, "under the influence of drugs" and at the complete mercy of the prison hospital authorities. There can be no doubt that the fact that Mr. Beecher was under the influence of morphine[1] at the time he confessed was one of the factors considered in that review in determining said confession was not characterized by the requisite voluntariness.
I further disagree with the majority opinion since it wrongfully places the burden of proof on the defendant. The entire treatment by the majority in its opinion of the admissibility of the drug-infected confession as well as specific portions thereof compels me to this conclusion.
The law of this State is clear that confessions are presumed to be involuntary or prima facie inadmissible and the burden is on the State to show they are voluntary. In a recent case, Harris v. State, 280 Ala. 468, 470, 195 So. 2d 521, 523, this Court stated the following:
Because the confession by the defendant to Dr. Headrick in the case at bar fails to meet the necessary standard of voluntariness as required by this Court's decisions and controlling decisions of the Supreme Court of the United States, as now extended by Townsend v. Sain, supra, to drug-affected confessions, I am of the opinion the case should be reversed.
LAWSON, J., concurs in the foregoing dissenting opinion of HEFLIN, C. J.
PER CURIAM.
In our opinion in this case we concluded that no error infected the trial of this appellant. However, the record was silent as to whether any jurors had been challenged by the state for cause on account of any affirmative answer they may have given to the general question propounded during the qualification of the jurors as to whether any of them had a fixed opinion against capital punishment.
Accordingly, we remanded this cause to the lower court to determine, first, whether any jurors had been challenged on the above mentioned ground, and second, whether in the event a juror had been challenged by the state and excused because of an affirmative answer to the general question, would such juror nevertheless consider the evidence and instructions of the court and return a verdict of guilty although such verdict could result in the death penalty.
This procedure was to determine whether the doctrines enunciated by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, and Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433, had been complied with.
Pursuant to the directions contained in our order of remandment, the lower court, on 21 October 1971, conducted a hearing for the purpose of making the determinations directed in the order of remandment.
The appellant, attended by his counsel, Hon. Morgan Weeks, and Hon. Thomas Armstrong, and Hon. John T. Black, District Attorney for the Ninth Judicial Circuit, and Hon. Bert T. Latham, Assistant *172 District Attorney for said circuit, were present at the hearing.
Mr. Black, being examined as a witness by Mr. Latham, testified that he solely had conducted the prosecution of the appellant at the trial which resulted in the appellant's conviction. Among the questions addressed to the venire by Judge Newton B. Powell, presiding at the trial, in qualifying the jury, was whether any of the jurors had a fixed opinion against capital punishment.
Mr. Black testified unequivocally that not a single juror was challenged by the state for cause, either because of their answers to the question as to their belief in capital punishment, or for any answer to other qualifying questions.
Mr. Weeks and Mr. Armstrong in behalf of the appellant testified to the effect that their notes made in connection with the trial, and which they had with them, indicated that some of the jurors had been challenged, their jury sheets showing a notation "for cause" by certain jurors' names. However, they themselves had challenged some of the jurors for cause because such jurors had asserted a fixed opinion of appellant's guilt, and their notes did not indicate who had imposed the challenges indicated by their notations on the jury sheet. Neither could say that the state had challenged any juror for cause because they could not remember such happening, and everyone was being careful "about Witherspoon" at the time of the trial.
Judge Powell, who presided at appellant's trial, and at the hearing on remandment, stated at the conclusion of the hearing that "the District Attorney advised the trial judge that he would not challenge anyone on the theory that they would not convict if the death penalty was involved. The Witherspoon case was not very old at the time, and there was some question about it, and, * * * the court recalls that no one was challenged because of the capital punishment issue."
At the conclusion of the evidence and after arguments of respective counsel, the court entered a judgment finding, (1) that no juror had been challenged by the State of Alabama for any cause, and (2) that no juror was challenged by the State of Alabama because of a fixed opinion against capital punishment.
The findings by the court are overwhelmingly supported by the evidence. Such facts preclude any possible application or operative influence of the doctrine enunciated in Witherspoon and Boulden, supra.
HEFLIN, C. J., LAWSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX, and McCALL, JJ., concur in the opinion after remandment.
A majority of the Justices would now affirm the judgment.
Affirmed.
MERRILL, COLEMAN, HARWOOD, BLOODWORTH, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., and LAWSON, J., dissent as to affirmance and adhere to the views expressed in the opinion of HEFLIN, C. J., on original deliverance.
[1] 372 U.S. at page 307, 83 S. Ct. 745. 372 U.S. at page 295, 83 S.Ct. at page 748, in the opening sentence in the opinion Mr. Chief Justice Warren's statement: "This case, in its present posture raising questions as to the right to a plenary hearing in federal habeas corpus * * *" clearly indicates the question before the court was procedural.
[2] 372 U.S. at page 307, 83 S. Ct. 745. 372 U.S. at page 295, 83 S.Ct. at page 748, in the opening sentence in the opinion Mr. Chief Justice Warren's statement: "This case, in its present posture raising questions as to the right to a plenary hearing in federal habeas corpus * * *" clearly indicates the question before the court was procedural.
[3] "Q. I will ask you, doctor, did you administer treatment to him at that time?
"A. Yes, sir.
"Q. What was that?
"A. He had a gunshot wound of the leg and the tibia was shattered and the leg was cleansed and the leg was packed with gauze and he was given a medication for pain and the wound wrapped and strapped so he could be transported.
"Q. What kind of medication did you give him?
"A. Morphine.
* * * * * *
"Q. Was anybody there besides you and your nurse and the defendant?
"A. At one time there was more people in the emergency room but they were cleared from the emergency room and during most of our conversation after the treatment had been accomplished it was just the nurse and Mr. Beecher and I.
"Q. Now, did you also give him some food and water and cigarettes?
"A. Yes, sir."
[4] "THE COURT: Dodid you have any arrangements made with these policemen to get any information?
"A. No, sir.
"THE COURT: For them?
"A. No, sir.
"THE COURT: Did this man volunteer to make this statement to you or was this in response to questions you asked?
"A. I was tryingI would almost like to talk off the record if I may, if it is possible. It doesn't make any difference. I felt sorry for this man. He looked almost like an animal. I was trying in the best way that I could to make him comfortable, of course, to relieve his pain, offer him cigarettes and that sort of thing to make him comfortable. He hadn't eaten in sometimes either. I just stayed in the emergency room and talked to him because he was going to be transferred to Kilby Prison, that was the word that was given to me. I was not to take him to the operating room and to start to work on his leg.
"MR. BLACK: In other words, the statement he gave you was notyou were not probing him?
"A. No, sir, I was not probing him except I will take anybody's history when they come into my office. Of course
"MR. WEEKS: Doctor, I believe you stated whether or not you were not sure whether you asked him specific questions?
"A. I can't remember what my comments were five years ago.
"MR. WEEKS: Then, you could have asked him specifically what questions?
"A. I think I asked him why did he do it. That is what got the thing started as far as concerning
"THE COURT: Is that all you remember you did ask him, why did you do it?
"A. Yes, sir.
"THE COURT: And he told you the whole story then?
"A. He started back in his childhood and telling us the whole story."
[5] See Clewis v. Texas, 386 U.S. 707, 87 S. Ct. 1338, 18 L. Ed. 2d 423 (1967).
[1] It is interesting to note that according to Goodman and Gilman, The Pharmacological Basis of Therapeutics, page 191, inability to concentrate, difficulty in mentation, and apathy are produced by moderate amounts of morphine (up to ¼ of a grain) as well as euphoria, drowsiness, loss of anxiety and inhibition. Further such amounts bring about increased ease of discriminating and making decisions. This note is supplied not as supportive evidence for my dissenting opinion for such information was not in the record, but merely as a passing comment. | December 9, 1971 |
ed3c4720-c4cd-4a90-80b8-b645985b7587 | Ex parte William B. Blount, et al. | N/A | 1190596 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 19, 2021
1190596
Ex parte William B. Blount, et al. PETITION FOR WRIT OF MANDAMUS: CIVIL (In
re: Valley National Bank f/k/a Aliant Bank v. William B. Blount, Jessie Blount, William
W. Blount, WWJ Corporation, Inc. and Alabama Utilities Services, LLC) (Jefferson
Circuit Court: CV-18-903571).
ORDER
The petition for writ of mandamus in this cause is denied.
STEWART, J. - Parker, C.J., and Bolin, Shaw, Wise, Bryan, Sellers, Mendheim,
and Mitchell, JJ., concur.
Witness my hand this 19th day of March, 2021.
/ra | March 19, 2021 |
6731870f-7dba-404e-a61d-dd46d2d1f700 | Johnston v. Alabama Public Service Commission | 252 So. 2d 75 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 75 (1971)
David D. JOHNSTON et al.
v.
ALABAMA PUBLIC SERVICE COMMISSION et al.
3 Div. 470.
Supreme Court of Alabama.
June 30, 1971.
Rehearing Denied September 9, 1971.
Pruitt & Pruitt, Livingston, Hill, Hill, Stovall, Carter & Franco, and C. Knox McLaney, Montgomery, for appellants.
Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee Hunt Oil Co.
*76 PER CURIAM.
This is an appeal from a decree approving and affirming an order of the Alabama Public Service Commission and holding Tit. 10, § 74, Code 1940 constitutional.
Appellee Hunt Oil Company filed a petition in the Public Service Commission under § 74 for a certificate to permit it to acquire rights of way by condemnation for the construction of a pipeline. After an adversary hearing, the certificate was issued. Appellants appealed to the Circuit Court of Montgomery County and contended that § 74 is unconstitutional. The circuit court affirmed and the cause was appealed to this court.
The facts and contentions of the parties are contained in the dissenting opinion of Bloodworth, J., and need not be here repeated. The sole question presented to us is whether § 74 violates Sec. 23 of the Constitution of Alabama of 1901 when applied to the proposed right of way for the pipeline. A majority of the court for this case holds that § 74 of Tit. 10 is constitutional as applied to the facts of this case.
One of the fundamental principles of our political system is that a legislature possesses all power except as it is limited or restricted by the state or federal constitutions. Mangan v. State, 76 Ala. 60; State ex rel. French v. Stone, 224 Ala. 234, 139 So. 328; Hall v. Underwood, 258 Ala. 392, 63 So. 2d 683; Opinion of the Justices, 263 Ala. 151, 81 So. 2d 688; Young v. State, 283 Ala. 676, 220 So. 2d 843.
It is equally well established that the right of eminent domain antedates constitutions, and is an incident of sovereignty, inherent in and belonging to every sovereign state. Steele v. County Commissioners, 83 Ala. 304, 3 So. 761; Denson v. Alabama Polytechnic Institute, 220 Ala. 433, 126 So. 133; Gerson v. Howard, 246 Ala. 567, 21 So. 2d 693; Blanton v. Fagerstrom, 249 Ala. 485, 31 So. 2d 330.
There is no question in this case of a conflict with the federal constitution, so we must ascertain if the plenary power of the legislature is limited or restricted by our state constitution. If it is restricted, the restriction is found in Sec. 23 of the Constitution of 1901, the applicable portion of which reads:
To the first semicolon, the right of eminent domain of the sovereign is reiterated, and it is clearly stated that it includes property of corporations as well as individuals. The next clause requires just compensation for any private property taken. This is the first restriction. The next clause contains a second restriction, that private property shall not be taken for private use or for the use of nonmunicipal corporations, without the consent of the owner. But there is a proviso that is entitled to just as much consideration and applicability as the two restrictions which precede it. The proviso is repeated because it is of utmost importance: "* * * provided, however, the legislature may by law secure to persons or corporations the *77 right of way over the lands of other persons or corporations, and by general laws provide for and regulate the exercise by persons and corporations of the rights herein reserved; but just compensation shall, in all cases, be first made to the owner; * * *."
The legislature, under the proviso, saw fit to grant the right to persons in Tit. 19, § 56, Code 1940, by granting, a land-locked owner access to a public road. In Harvey v. Warren, 212 Ala. 415, 102 So. 899, the statute was attacked as violating Sec. 23 of the Constitution of 1901 and Sec. 1 of Art. 14 of the Constitution of the United States. This court upheld the constitutionality of the statute. The legislature granted similar rights to mining, manufacturing and quarrying corporations in a provision that has remained unchanged in the Codes of 1907, 1923 and 1940. Tit. 10, § 89, Code 1940.
In Steele v. County Commissioners, 83 Ala. 304, 3 So. 761, the "material question presented by the record involves the constitutionality of sections 1676 and 1677 of Code of 1876, which provide for and regulate the establishment of private roads." The proviso there was substantially the same as before us in the instant case. The court said, in reference to what is now Sec. 23 of the Constitution of 1901:
This court, per Clopton, J., evidently thought the constitutional question required decision even though it was held that certiorari was not the proper remedy to test the "constitutional authority to establish such road over the land of another without the consent of the owner."
Later, the constitutionality of Section 3485, Code 1907 (the precursor of Tit. 10, § 74), was before the court in Sloss-Sheffield Steel & Iron Co. v. O'Rear, 200 Ala. 291, 76 So. 57, where it was said:
In that case also, the court held that a partnership was not covered by § 3485, but all the justices concurred in the opinion that the statute did not violate Sec. 22 of the Constitution of 1901.
It is true that Tit. 10, § 74, Code 1940, is broader than § 3485, Code 1907, having been amended in 1915 and in 1932. One of the amendments specifically added "pipe lines."
Another amendment provided: "The acquisition of rights of way for mining, manufacturing, industrial power and quarrying purposes as provided herein, is hereby declared to be a public use and necessary to the development of the state." The legislature was evidently putting into the statute the expressions of this court (emphasis supra) as to the determination of a public use.
In view of this we cannot agree that § 74 is unconstitutional, because it is the duty of a court to sustain an act unless it is convinced beyond a reasonable doubt of its unconstitutionality. Reed v. Alabama Public School and College Authority, 284 Ala. 22, 221 So. 2d 381; Brittain v. Weatherly, 281 Ala. 683, 207 So. 2d 667. We are not so convinced.
The wisdom of the legislature in broadening the statute may be questionable, but courts have nothing to do with the wisdom, policy or expediency of a statute. These are matters purely of legislative deliberation and cognizance. City of Mobile v. Yuille, 3 Ala. 137; Alabama State Federation of Labor v. McAdory, 246 Ala. 1, 18 So. 2d 810 [5], 4A Ala.Dig., Constitutional Law. We have held that courts cannot and will not interfere with the discretion vested in other units or branches of government, except in case of fraud, corruption, or bad faith, the equivalent of fraud. Finch v. State, 271 Ala. 499, 124 So. 2d 825, and cases there cited.
It appears that Tit. 10, § 74 gives a landowner more protection than did the original *79 statute which was considered in the O'Rear case. Prior to the 1932 amendment, which included "pipe lines" among other additions, the corporations were forbidden to start condemnation proceedings "under this section until the approval of the public service commission is first obtained," (§ 7019, Code 1923). There was no provision for a hearing and for aught appearing, the "approver could be given on an ex parte basis. But that same 1932 amendment provided the hearing now included in Tit. 10, § 74. Now the corporation must obtain a certificate from the Public Service Commission before commencing condemnation proceedings. Thirty days' notice must be given and, after a hearing, the Commission must be of the opinion that "the proposed use would be in the furtherance of industrial development by such company * * * in this state."
In the instant case, an adversary hearing was had before the Commission "and each of the Protestants was given full opportunity and was heard by the Commission." The certificate of the Commission goes into considerable detail to show why the certificate should be issued and found that "the use of the proposed pipeline is in furtherance of industrial development in this State," and that each and every requirement of Tit. 10, § 74 "has been met and proved by Applicant."
Section 74 provides that "the right to condemn herein given shall not include the right to condemn any private residence, nor the outhouses, garden, nor orchard within the curtilage of any private residence. The acquisition of rights of way for mining, manufacturing, industrial power and quarrying purposes as provided herein, is hereby declared to be a public use and necessary to the development of the state."
The opinion and certificate of the Public Service Commission shows that appellant produced the first oil well in Alabama in 1944 in Choctaw County and later built the first oil refinery plant in this state at Tuscaloosa, and that "it was conceded by all witnesses that the industrial development planned by Applicant would be of benefit to the State of Alabama."
The legislature has historically approved and encouraged the industrial development of Alabama. The oil and gas industry is comparatively new in Alabama, but the rights and privileges granted under § 74 are equally applicable to this new industry whenever the statutory provisions are met. We should not hold that an oil refinery cannot be considered as coming within the statute merely because there was no oil industry or no oil refining plant in Alabama when the statute was last amended in 1932.
We agree with the Public Service Commission that the undisputed evidence in this case shows that "the use of the proposed pipeline is in the furtherance of industrial development in this State."
We find no error in the trial court's decree holding § 74 to be valid under Sec. 23 of the Constitution and as applied to the facts of the instant case.
In this case, McCall, J., recused himself because the proposed pipeline would go through property owned by him. The court was divided four to four and under the provisions of Tit. 13, § 15, Code 1940, as amended, this fact was certified to the governor and he appointed Honorable Sam W. Pipes, III, a member of the bar, to sit as a judge of this court in the determination of the cause.
Affirmed.
HEFLIN, C. J., and MERRILL and MADDOX, JJ., concur.
LAWSON, J., concurs specially.
PIPES, J., concurs in the result.
SIMPSON, COLEMAN, HARWOOD and BLOODWORTH, JJ., dissent.
LAWSON, Justice (concurring specially).
The case of Sloss-Sheffield Steel & Iron Co. v. O'Rear, 200 Ala. 291, 76 So. 57, contains *80 language which is subject to the construction that legislation of the kind here under consideration would not be violative of § 23 of the Constitution.
The Legislature, in enacting the subject legislation, may well have relied upon that language in the Sloss-Sheffield case.
Many years have elapsed since the subject legislation was enacted and no doubt many rights-of-way have been acquired thereunder.
The opinion of Mr. Justice Bloodworth is brilliantly written. It demonstrates laborious and penetrating research. It is most persuasive. But the conclusion reached therein would, in my opinion, jeopardize all such previously acquired rights-of-way.
In view of the language in the Sloss-Sheffield case, supra; the legislation thereafter enacted; the length of time which has elapsed since the enactment of that legislation; and the rule that courts must indulge all presumptions and intendments in favor of the constitutionality of a statute (Opinion of the Justices, 281 Ala. 50, 198 So. 2d 778; Central of Georgia R. Co. v. Groesbeck & Armstrong, 175 Ala. 189, 57 So. 380); I am constrained to concur in the Per Curiam opinion.
PIPES, Justice (concurring in the result).
I concur in the result. I am convinced that Sec. 23 of the Constitution of 1901 does not restrict the legislature's power to give persons and corporations the authority to institute eminent domain proceedings, and that the power given certain corporations, which would include appellee, to secure rights of way, including easements for pipelines, in § 74 of Tit. 10 is constitutional.
I am not convinced that some of the powers given for purposes other than rights of way are permitted under Sec. 23 of the Constitution, but those purposes are not before us in this case. If they were stricken from the statute, I think § 74 would still be constitutional under the rule that although a statute may be invalid or unconstitutional in part, the part that is valid will be sustained where it can be separated from the part which is void. If, after the deletion of the invalid part, the remaining portions of an act or statute are complete within themselves, sensible and capable of execution, the statute will stand notwithstanding its partial invalidity. Wilkins v. Woolf, 281 Ala. 693, 208 So. 2d 74; Springer v. Williams, 229 Ala. 339, 157 So. 219; Harper v. State, 109 Ala. 28, 19 So. 857.
The part of the statute about which I am doubtful could be stricken in toto and the statute would still be complete, sensible and capable of execution as it probably has been for thirty-nine years.
BLOODWORTH, Justice (dissenting).
Appellants seek to reverse a final decree of the Montgomery County circuit court, in equity, which approved and affirmed an order of the Alabama Public Service Commission, and declared Title 10, § 74, Code of Alabama 1940, to be constitutional. The order granted a certificate to Hunt Oil Company [pursuant to this section] declaring that Hunt's construction of a 100-mile long private pipeline from the Gilbertown oil fields to Hunt's oil refinery in Tuscaloosa would be in furtherance of the industrial development of Hunt Oil Company in Alabama. Such an order is a prerequisite to Hunt's instituting condemnation proceedings against appellants (landowners) to acquire rights of way for the pipeline.
The question is: "Does Title 10, § 74, granting to certain designated private corporations the power of eminent domain, violate either the State or the Federal Constitutions"? Contrary to the result reached by the majority, I have concluded that it does and is unconstitutional. The reasons for my conclusion will hereinafter appear in detail.
*81 The statute in question is:
In substance, this statute allows every mining, manufacturing, industrial, power and quarrying corporation to acquire by exercise of the power of eminent domain, rights of way across the lands of others on, *82 or under which, it may construct railways, pipelines, roads, etc., for the purpose of connecting with its other lands, or with any public road, railroad, or navigable waterway, or with the lands of any other such corporation, or with any shipping or distributing point.
Although I recognize the necessity for the exercise of the right of eminent domain by private corporations in certain instances (certainly in those situations in which such corporations are affected with a public interest, i. e., public utilities), I note that there are limitations placed upon its exercise. The primary restraint upon this power is imposed by Art. I, § 23, Alabama Constitution 1901, which provides in part:
From my examination and study of Title 10, § 74, supra, I must conclude that it permits private property to be acquired under power of eminent domain for private use, in contravention of this constitutional provision that private property shall not be taken "* * * for private use, or for the use of corporations, other than municipal, without the consent of the owner * * *." Consequently, I would hold the statute to be unconstitutional.
I pass no judgment upon the applicability of that clause in § 23, Art. I, supra: "* * * provided, however, the legislature may by law secure to persons or corporations the right of way over the lands of other persons or corporations * * *" to other factual situations or to other statutes (such as § 89, Title 10, Code of Alabama 1940, granting rights of way to certain corporations to make connection with public highways, and § 56, Title 19, Code of Alabama 1940, granting rights of way to owners of landlocked tracts to connect with public road). As I have already indicated, I am clear to the conclusion that such constitutional grant does not permit a taking under power of eminent domain by Hunt of the rights of way for its 100-mile pipeline under authority of § 74, supra.
The factual background of this case is as follows: The appellee, Hunt Oil Company, has sought to obtain the power of condemnation conferred by Title 10, § 74, supra, in order to acquire rights of way or easements for the construction of an oil pipeline from the Gilbertown oil field in Alabama to Hunt's oil refinery in Tuscaloosa. The proposed pipeline would extend for a distance of approximately 100 miles across Choctaw, Sumter, Greene and Tuscaloosa Counties. When completed it would be utilized solely by the Hunt Oil Company to transport its oil products to its refinery.
Pursuant to provisions of the statute, Hunt filed an application with the Alabama Public Service Commission seeking certification that the use of the proposed pipeline would be in furtherance of the industrial development by Hunt Oil Company in Alabama. At a public hearing required by the statute, Hunt introduced evidence which indicated that the pipeline was necessary for Hunt to achieve its planned industrial expansion in Alabama. For the past twenty-seven years crude oil has been barged by Hunt from the Gilbertown oil field in Choctaw County to Hunt's oil refinding plant in Tuscaloosa. Now, Hunt considers that it will be more economical to transport its crude oil by pipeline. It was shown that Hunt intends to expand its refinery at Tuscaloosa at a cost in excess of $5,000,000. In addition to this capital *83 expenditure, the enlarged plant would provide employment for 150 individuals, would permit the refining and distribution of such petroleum products as high test gasoline, jet fuel, diesel fuel and asphalt, and would require the services of three large trucking firms in the state to transport its products. These, and several other factors, Hunt argued, evidence its industrial development and warrant the granting of the power of condemnation.
Appellants, landowners whose lands will be subject to the condemnation, appeared before the Alabama Public Service Commission to protest approval of Hunt's application.
After hearing evidence presented by Hunt and the opposing landowners, the Alabama Public Service Commission certified: "* * * the use of the proposed pipe line * * * would be in furtherance of industrial development by Hunt Oil Company in Alabama, pursuant to the provisions of Section 74, Title 10, Code of Alabama, 1940, as amended."
A bill of complaint was then filed by the landowners in the circuit court of Montgomery County, in equity, challenging the findings of the Alabama Public Service Commission and attacking the constitutionality of Title 10, § 74, supra. The circuit court found: Hunt to be a corporation within the meaning of the statute; the proposed pipeline to be for a public use; the findings of the Alabama Public Service Commission to be correct; and Title 10, § 74, to be constitutional. The appeal is from this decree.
The landowners agree that the evidence was undisputed before the Alabama Public Service Commission that the proposed pipeline would benefit the industrial development of Hunt Oil Company. As the statute is framed they concede that this was the sole function the Alabama Public Service Commission had to perform and having found this issue to be favorable to Hunt, the certificate was therefore issued for the pipeline.
On the other hand, the landowners insist that Title 10, § 74, supra, violates the Constitution of the State of Alabama, particularly Section 23, supra, in that it permits Hunt, a privately owned oil corporation, by exercise of the right of eminent domain to take private property for its own private use, without the consent of the landowners. They contend that, to be constitutional, such taking must be for a "public purpose," or "public use."
To these contentions, Hunt Oil Company first replies that it does not quarrel with the proposition that land taken by a private corporation under power of eminent domain must be taken for a "public purpose" or "public use." However, it denies that such public purpose requires actual "use" by the public or "use" subject to public control. Hunt says the statute and the Constitution are satisfied because a "public use" is synonymous with a "public benefit"; a "public benefit" is obtained by the State's general industrial development; the State's general industrial development is achieved when it is determined that the proposed right of way is in furtherance of the industrial development of Hunt Oil Company in Alabama. Any other construction, Hunt contends, would require us to follow a narrow, inflexible and constricted view, contrary to our decided cases. Hunt insists that the statute is constitutional because its constitutionality has already been passed on by our court, citing Sloss-Sheffield Steel & Iron Co. v. O'Rear, 200 Ala. 291, 76 So. 57 (1917).
From an historical viewpoint, statutory provisions granting the power of condemnation to mining and manufacturing corporations in Alabama first appeared in the Code of 1876.[1] The predecessor of the statute (Title 10, § 74, supra) under which *84 Hunt asserts its rights, was enacted in 1903[2] and, as codified, provided:
(See § 3485, Code of Alabama 1907.)
The statute was amended in 1915[3] extending the power of condemnation to encompass transmission lines and lands, located on a navigable river, upon which specified facilities could be erected. The amendment also contained a provision requiring approval of the Alabama Public Service Commission before proceedings under the section could be commenced. (See § 7019, Code of Alabama 1923.)
The statute as presently worded was enacted in 1932.[4] It is broader in scope than its predecessors and includes the requirement that the Alabama Public Service Commission issue a certificate that the proposed use will be in furtherance of industrial development by the corporation in Alabama.
Hunt contends that our decision in Sloss-Sheffield Steel & Iron Co. v. O'Rear, supra, settled all constitutional questions as to the validity of the statute and thus forecloses our consideration of its constitutionality. I cannot agree with this contention for two reasons. First, the statute upheld in Sloss-Sheffield has been twice amended so that in its present form (Title 10, § 74) it reflects significant changes and a scope broader than its predecessor. Second, the determination in Sloss-Sheffield that the statute was not unconstitutional under § 22 of our Constitution, because it applied solely to corporations, does not mean that the statute and its successors are thereby free from all constitutional imperfections once and for all. Nor does it now preclude the court from considering constitutional questions which were not raised or considered in the earlier decision. Boyd v. State, 53 Ala. 601 (1875), aff'd 94 U.S. 645, 24 L. Ed. 302.
Recognizing that the earlier decision does not prohibit examination of Title 10, § 74, I turn to the consideration of its constitutionality. The validity of any enactment conferring the power of condemnation must be weighed against the constitutional requirement, which I have previously set forth, that private property can be taken under the power of eminent domain only for a public use. Alabama Constitution 1901, Art. I, § 23, supra. Similar provisions are contained in other states' constitutions.[5] Such provisions were originally adopted to prohibit the expropriation of private property for the public use without just compensation. However, with the increased exercise of the power of condemnation accompanying the industrial expansion in the country, these provisions have been interpreted in other states as impliedly prohibiting the taking of private property for private use, with or without compensation.[6]
*85 Although it is now a universally accepted view that the property taken must be devoted to a public use, courts have found it virtually impossible to formulate a precise definition of the term "public use" which can be applied to every situation. Two distinct views have developed. One interpretation views public use literally, requiring the actual right of use by the public.[7] The second view construes public use to mean public benefit or welfare.[8] Under this second interpretation, the condemnation is allowed if it contributes to the general welfare and prosperity of the community or state.
An examination of the Alabama cases reveals language which is supportive of both views. In the early case of Aldridge v. Tuscumbia, Courtland and Decatur Rail Road Company, 2 Stew. & P. 199, 23 Am. Dec. 307 (1832), this court upheld the validity of a legislative act incorporating the Tuscumbia, Courtland & Decatur Railroad and conferring upon it the power of condemnation in its charter. The landowners over whose land the railroad sought to exercise its power of condemnation claimed that the land taken could not be for a public use since only the Tuscumbia, Courtland & Decatur Railroad would use the property and would benefit from its construction. Chief Justice Lipscomb, speaking for the court, wrote:
These comments would seem to evidence an espousal of the liberal view of public use, equating it with public benefit.
Subsequent to the Aldridge case our decisions tended to narrow the scope of public use. In Sadler v. Langham, 34 Ala. 311 (1859), our court considered the validity of two enactments authorizing the exercise of the power of condemnation to establish private roads and erect mill dams. The court very carefully outlined the scope of its inquiry:
In attempting to answer these questions, the court set forth the following rules.
This court concluded that the two enactments authorized a taking for a private use and were therefore unconstitutional.[9]
A like restrictive view of the concept of public use was set forth in Columbus Water Works Co. v. Long, 121 Ala. 245, 25 So. 702 (1898). The Columbus Water Works Company, a foreign corporation, sought to condemn land for a water shed for its reservoir in order to prevent the water supply of Phoenix City and Girard, Alabama, and Columbus, Georgia, from becoming polluted. The power of condemnation for such purposes was granted to water works companies by a legislative enactment. Demurrer to the Columbus Water Works Company's petition was sustained by the trial court. This court reversed, holding that the demurrer should have been overruled. The court observed:
This language has been cited with approval in several of our subsequent decisions. Alabama Interstate Power Co. v. Mt. Vernon-Woodberry Cotton Duck Co., 186 Ala. 622, 65 So. 287, aff'd 240 U.S. 30, 36 S. Ct. 234, 60 L. Ed. 507 (1916); Gralapp v. Mississippi Power Company, 280 Ala. 368, 194 So. 2d 527 (1967).
On the other hand, the case of Brammer v. Housing Authority of Birmingham Dist., 239 Ala. 280, 195 So. 256 (1940), illustrates a more liberal construction of public use. In Brammer, this court upheld the validity of the Housing Authority Law which allowed the State, its agencies and subdivisions to take advantage of federal aid for slum clearance. In discussing the term "public use," the court made the following observations:
This court had occasion to amplify and explain these remarks in Opinion of the Justices, 254 Ala. 343, 48 So. 2d 757 (1950). There, the court rendered an advisory opinion to the Governor as to the constitutionality of certain acts of the legislature relating to slum clearance and redevelopment projects. (This legislation conferred on a housing authority the power to condemn slums to be subsequently redeveloped for either public or private use.) In discussing the implication of the Brammer decision, it was stated:
Quite candidly, I think it difficult, if not impossible, to conclusively categorize all of our decisions as adhering to the strict view of "public use" on the one hand or to the liberal view on the other. Both Hunt and the landowners have seized upon language in our various opinions to support their respective theories as to which view Alabama follows.
It is important to recognize that our previous decisions reflect applications of concepts of public use to widely divergent and constantly changing situations. Each decision must be viewed in the factual context in which the case arose. Plankroads, canals, and public grist mills, recognized as public uses by our court in 1859 in Sadler v. Langham, supra, have little significance in our present day society. This court could not in 1859, nor can it today, foresee all of the future situations in which the right of eminent domain might be exercised. All that the court can do is to apply the concepts of public use, as the court views them, to the factual situation before it. In this respect, I view the remarks of the Illinois Supreme Court in Department of Public Works and Buildings v. Farina, 29 Ill. 2d 474, 194 N.E.2d 209 (1963), to be particularly apt.
To summarize, I think that the history of our decisions clearly evidence the evolution taking place in this field and the varying concepts of public use which this court has embraced. I think, however, that our pronouncement in Brammer and Opinion of the Justices, supra, present concepts of public use which are particularly applicable to the case at bar. This court held in Brammer that the weight of authority favors the more liberal meaning of public use. On the other hand, the court recognized in Opinion of the Justices, supra, that mere public benefit alone is not, in and of itself, sufficient to make a use a public one, and that the benefits to be gained must not be vague, indefinite or restricted. (See our quotation from Opinion of the Justices, supra.)
Applying these concepts of public use to the case before us, it becomes apparent that Title 10, § 74, supra, is unconstitutional. The statute declares that the acquisition of the specified rights of way is for a public use and necessary to the development of the State. A corporation seeking to obtain the power of condemnation conferred by the statute, must acquire a certificate from the Alabama Public Service Commission that the proposed use would be in furtherance of the industrial development of the corporation in the State. Thus, by its terms, the statute equates private industrial development with public use.
Consequently, as I see it, the ultimate question as to the validity of the statute is whether public use and private industrial development are in fact synonymous. Does a taking of property which will promote the industrial development of a private corporation in Alabama per se result in benefits of such a nature or degree as to constitute a public use? I believe that the question must be answered in the negative.
Even if the court embraces the broadest interpretation of public use, I do not think it necessarily follows that the industrial development of a private corporation in Alabama produces benefits of the nature and character required to constitute a public use. This conclusion is reinforced when the scope of the statute is considered. The statute's application is not confined to public service corporations, such as public utilities, which we have recognized as being affected with the public interest, but rather includes any manufacturing and industrial corporation in Alabama. A manufacturing or industrial corporation which can demonstrate to the Alabama Public Service Commission that its industrial development would be promoted by the acquisition of a right of way of the nature specified in the statute, could (under the statute) acquire the power of condemnation to obtain a right of way over any private property for any distance in any direction anywhere in the State.
The proposed pipeline to be constructed by Hunt presents a clear case which sustains my conclusion that the statute is invalid. The rights of way needed to construct the pipeline are of the nature specified by the statute. Furthermore, Hunt demonstrated to the Alabama Public Service Commission that its industrial development would be enhanced if it acquired these rights of way for the pipeline. However, the pipeline will be utilized only by Hunt Oil Company to transport its crude oil products from the oil fields to its refinery; no other person or corporation will have the right to use the pipeline. The benefits to be derived by Hunt from the pipeline are readily apparent. It will provide Hunt Oil Company with a faster, more economical, and reliable method of transporting its crude oil to its refinery. Though the benefits to be obtained by the public of Alabama in the form of increased employment and capital expenditures were also detailed before the Alabama Public Service Commission, I cannot believe that these benefits alone are sufficient to make the use a public one, warranting the exercise of the power of eminent domain. Opinion *89 of the Justices, supra. Nor is it certain that Hunt's capital expenditures are directly dependent upon the acquisition of the rights of way for the pipeline. For aught that appears, Hunt's capital expenditures will be made regardless.
Cases relied upon by Hunt to sustain its position do not militate against this conclusion. In Ohio Oil Company v. Fowler, 232 Miss. 694, 100 So. 2d 128 (1958), the oil company proposed to operate a common carrier pipeline for transporting condensate and oil from two producing fields to a refinery twenty-five miles away. At the time the pipeline was to be constructed, there would be only one purchaser to utilize the line. The Mississippi Supreme Court upheld the oil company's right to acquire the needed rights of way by condemnation. In reaching this determination, the court stressed the significance of the pipeline being a common carrier.
The Louisiana Court of Appeal reached the same conclusion when confronted with a similar factual situation. Texas Pipe Line Company v. Stein, 190 So. 2d 244 (La. App.1966), rev. and appeal dismissed as moot, 250 La. 1104, 202 So. 2d 266 (1967). The proposed pipeline would operate as a common carrier regulated by the Louisiana Public Service Commission. The court stated:
A like determination was also made by the Superior Court of New Jersey in Texas Pipe Line Co. v. Snelbaker, 30 N.J.Super. 171, 103 A.2d 634 (1954), where again the significance of the pipeline being a common carrier was noted.
Rather than sustaining Hunt's position, I believe that these cases reinforce the conclusion that Hunt's exercise of the power of condemnation to construct a private pipeline would constitute a taking of private property for a private use. The courts in all of these cases very carefully noted the importance of the pipeline being a common carriera factor not present in this case.
Finally, Hunt points to State Highway Commission v. Thornton, 271 N.C. 227, 156 S.E.2d 248 (1967), as being supportive of its position. The case involved a proceeding to condemn a right of way for a road across the lands of defendants to connect the trucking facilities of Associated Transport, Inc., with a public highway. The defendants claimed that this was a private use since the road would be primarily for the use of Associated Transport. The North Carolina Supreme Court upheld the right to exercise the power of condemnation for this purpose. The court's remarks on the nature of public use are, I think, particularly relevant to the case here, and again, buttress the conclusion I have reached.
This the Constitution forbids.
The Per Curiam opinion seems to say that the clause in § 23, Art. I, supra (providing that the legislature may by law secure to persons or corporations rights of way over lands of others), excepts rights of way from the general prohibition against taking private property for private use and justifies the acquisition of the pipeline right of way in this case. I think this reasoning to be fallacious.
A view of the historical context in which this proviso was added to the Constitution will illustrate my point.
Our first Constitution in 1819 provided, with respect to the power of eminent domain: "Nor shall any person's property be taken or applied to public use, unless just compensation is made therefor." Forty years later, in Sadler v. Langham, supra, this court was faced with the consideration of the constitutionality of two statutes authorizing the exercise of the right of eminent domain to establish a private road and erect mill dams. The court concluded that the enactments authorized a taking for a private use and thus violated the Constitution.
Two years later, in 1861, the Constitution was amended to add the following provision:
The portions italicized are substantially the same as the proviso now under consideration. It is my conclusion that this provision was added to the 1861 Constitution to remedy the inequities resulting from the Sadler decision by allowing the legislature to grant rights of way of necessity to give landowners access to public roads, railroads, or navigable waters.
This interpretation was accepted by this court in Steele v. County Commissioners, supra, where, as in Sadler, the court construed statutes allowing the establishment of private roads. The court upheld the constitutionality of these statutes and very clearly explained the import of the amendment to the Constitution:
Likewise, the legislature seemed to recognize a similar construction of the constitutional provision as evidenced by the first enactment granting the right of eminent domain to mining and manufacturing corporations.
Section 1817, Code of Alabama 1876.
As can be seen, the statute places a restrictive length upon the rights of way allowed while, secondly, limiting access to and from their works or place or business or to connect with public roads, streams, or railroads.
It was only in subsequent enactments that the legislature broadened the grant of eminent domain eliminating any restrictive lengths, increasing the types of rights of way authorized, and expanding the locations to which they could be extended.
To summarize this point, it is my conclusion that the proviso first added in 1861 and carried forward in substance to the Constitution of 1901, was simply not intended to allow the grant of eminent domain for the purposes specified in Title 10, § 74. It is clear that this court recognized in Steele v. County Commissioners, supra, the very limited applications authorized by the proviso.
The Per Curiam opinion observes that there is no conflict in this case with the federal constitution. I must respectfully disagree. In view of this observation, I think it necessary to state my views on this subject.
It seems to be well settled now that the Due Process Clause of the 5th Amendment, as well as the clause providing that private property shall not be taken for a public use, without just compensation, have "been made obligatory on the states by virtue of the Fourteenth Amendment and the decisions of the Supreme Court of the United States relating thereto." 26 Am.Jur.2d, Eminent Domain, §§ 7, 8, pp. 646-648; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733; Nichols on Eminent Domain, Vol. 2A, § 7.1 [3].
The general law on this subject is specifically noted at 26 Am.Jur.2d, Eminent Domain, § 8, p. 647:
The following quotations from 26 Am. Jur.2d, supra, § 25 and § 34, should answer the contentions that the State's general industrial development is achieved by the furtherance of Hunt Oil Company's industrial development in Alabama.
See also Nichols, supra, § 7.61.
And specifically with reference to pipelines, I think the following quotation at § 55, 26 Am.Jur.2d, supra, is apt.
See also Nichols, supra, § 7.523 [2], [3].
Thus, I must conclude that the statute in question is unconstitutional under the federal, as well as the state, constitution.
To briefly summarize and to conclude this otherwise quite lengthy dissent, I would hold that Section 74, Title 10, Code of Alabama 1940, is unconstitutional because it permits a taking of private property, under the power of eminent domain without the consent of the owner, for a private use, contrary to the provisions of the Alabama Constitution 1901, Art. I, Sec. 23 [that private property shall not be taken for private use, without the consent of the owner].
I would reverse the decree of the circuit court of Montgomery County, in equity.
SIMPSON and HARWOOD, JJ., concur.
COLEMAN, Justice (dissenting).
I concur in the dissenting opinion of Bloodworth, J., except as to what is said with respect to the due process clause of the fifth amendment. As to the federal question I express no opinion.
I would reverse the decree of the circuit court.
[1] See, e. g., § 1817, Code of Alabama 1876; § 1563, Code of Alabama 1887; § 11-15, Code of Alabama 1897. We do not consider that statutes relating to mill dams fall within this category.
[2] See Gen.Acts of Alabama 1903, Act No. 395, p. 310, appvd. Oct. 2, 1903.
[3] See Gen.Acts of Alabama 1915, Act No. 698, p. 770, appvd. Sept. 25, 1915, amending § 3485, Code of Alabama 1907.
[4] See Gen.Acts of Alabama, Ex.Sess., 1932, Act No. 31, p. 24, appvd. Sept. 24, 1932, amending § 7019, Code of Alabama 1923.
[5] The following are typical: Michigan Const., Art. 10, § 2 (1963); Georgia Const., Art. 1, § 3, para. 1 (1945); Tennessee Const., Art. I, § 21 (1870).
[6] For a discussion of the development of the concept of "public use," see Annotation 54 A.L.R. 7; Comment, 58 Yale L.J. 599 (1949); Comment, Law and the Social Order 688 (1969); 2A Nichols, Eminent Domain § 7.
[7] See, e. g., Oxford County Agr. Soc. v. School Admin. Dist. No. 17, 161 Me. 334, 211 A.2d 893 (1965); Gravelly Ford Canal Co. v. Pope & Talbot Land Co., 36 Cal. App. 556, 178 P. 150 (1918).
[8] See, e. g., State ex rel. Allerton Parking Corp. v. City of Cleveland, 4 Ohio App. 2d 57, 211 N.E.2d 203, aff'd 6 Ohio St.2d 165, 216 N.E.2d 876 (1965); Department of Public Works and Buildings v. Farina, 29 Ill. 2d 474, 194 N.E.2d 209 (1963).
[9] The Alabama Constitution was subsequently amended to allow the legislature to secure to persons or corporations the right of way over the lands of other persons or corporations (now § 23, supra). An enactment granting the power of condemnation to establish a private road of necessity was upheld in Steele v. County Commissioners, 83 Ala. 304, 3 So. 761 (1887). | June 30, 1971 |
ccebc7fe-2c20-4a2f-b28b-3c3c56068ccf | Ex parte C.A.P. | N/A | 1190930 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
April 9, 2021
1190930 Ex parte C.A.P. PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF CRIMINAL APPEALS (In re: C.A.P. v. State of Alabama)
(Jefferson Juvenile Court, Bessemer Division: JU-19-732.01; Criminal
Appeals : CR-19-0441).
CERTIFICATE OF JUDGMENT
WHEREAS, the appeal in the above referenced cause has been duly
submitted and considered by the Supreme Court of Alabama and the
judgment indicated below was entered in this cause on April 9, 2021:
Writ Quashed. No Opinion. (Special Writing) Wise, J. - Bolin, Shaw,
Bryan, and Mendheim, JJ., concur. Parker, C.J., and Sellers, Stewart, and
Mitchell, JJ., dissent.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. Weller, as Clerk of the Supreme Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrument(s) herewith set out as same appear(s)
of record in said Court.
Witness my hand this 9th day of April, 2021.
Clerk, Supreme Court of Alabama | April 9, 2021 |
181028c2-9b57-42bc-8d35-eb253e502634 | Ex parte Sylvester Elliot. | N/A | 1200126 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1200126
Ex parte Sylvester Elliot. PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS (In re: Sylvester Elliot v. State of
Alabama) (Wilcox Circuit Court: CC-17-61; Criminal Appeals :
CR-19-0510).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Mitchell, J. -
Parker, C.J., and Shaw, Bryan,
and Mendheim, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
d429a993-4a93-42b0-ae44-99ff1b05c182 | Dotson v. State | 265 So. 2d 162 | N/A | Alabama | Alabama Supreme Court | 265 So. 2d 162 (1971)
In re Lee Henry DOTSON
v.
The STATE of Alabama.
Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
1 Div. 681.
Supreme Court of Alabama.
September 30, 1971.
Rehearing Denied November 4, 1971.
William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for petitioner.
Johnston, Johnston & Kendall, Mobile, for respondent-defendant.
MADDOX, Justice.
The State of Alabama has petitioned this Court to review the decision of the Court of Criminal Appeals, 48 Ala.App. 378, 265 So. 2d 160, which overturned Lee Henry Dotson's conviction and remanded the case to the Circuit Court of Mobile County for a new trial.
The Court of Criminal Appeals found that the trial court committed reversible error in admitting into evidence Dotson's confession, the Court stating:
Review by certiorari of the opinion is sought here under the provisions of Rule 39, as amended, which allow a review in cases involving a question of first impression. The State claims that question is:
As we read the opinion of the Court of Criminal Appeals, it decides that an accused cannot waive his right to have his counsel present during interrogation unless he expressly states that he understands his rights but nevertheless waives them.
Assuming that the record is devoid of any testimony, conclusionary or detailed, as to Dotson's stating that he understood the Miranda[1] warnings and waived the right to have counsel present, does the record have to show, as the Court of Criminal Appeals found, that Dotson expressly stated that he understood? We think not.
Although there is language in Miranda which suggests that an in-custody interrogation may be conducted properly only upon an express statement by the accused to the effect that he is willing to make a statement and does not want an attorney, we do not understand the basis for a determination of the voluntariness of an in-custody statement to be so narrowly limited. The ultimate test is whether the waiver of the right to silence and to counsel was knowingly, voluntarily and intelligently made. This determination can be deduced from the particular facts and circumstances of each case and need not be determined solely upon the presence or absence of an express statement of certain words. As was said in United States v. Hayes, 385 F.2d 375 (4 Cir., 1967); cert. den., 390 U.S. 1006, 88 S. Ct. 1250, 20 L. Ed. 2d 106 (1968):
The rule announced in Hayes has been followed in many state and federal decisions. In fact, in Lloyd v. State, 45 Ala. App. 178, 227 So. 2d 809 (1969), the Court of Criminal Appeals seemed to approve the rule announced in Hayes by quoting from a Maryland case, Anderson v. State, 6 Md.App. 688, 253 A.2d 387, as follows:
Dotson contends that the Court of Criminal Appeals has made a finding of fact that the record is silent on the waiver question and we cannot go the the record *164 to determine whether the Court's finding is correct or not. As we view the matter, however, the opinion is based upon the proposition that the record is devoid of testimony showing that the accused stated that he understood the warnings. This finding by the Court does not eliminate the possibility that there is evidence in the record which might show that the State met its burden of proving a knowing and intelligent waiver. As a matter of fact, in footnote 1 of the opinion of the Court of Criminal Appeals, it appears that Dotson selectively refused to answer one of the questions put to him by the interrogators, which, in itself, was some evidence that Dotson understood his rights and voluntarily relinquished them. See State v. Adams, 76 Wash. 2d 650, 458 P.2d 558 (1969), wherein the defendant refused to answer certain questions and was held to have exercised selectively his right to remain silent.
A heavy burden rests upon the State to prove that a person in custody "knowingly and intelligently" waived his privilege against self-incrimination and his right to retained or appointed counsel. Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); Elrod v. State, 281 Ala. 331, 202 So. 2d 539 (1967). We do not know whether the record in this case shows that the State met this burden in view of the totality of the circumstances surrounding the making of the in-custody statement. Therefore, we must reverse this cause and remand it to the Court of Criminal Appeals.
Reversed and remanded.
HEFLIN, C. J., and SIMPSON, MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur.
LAWSON and COLEMAN, JJ., dissent.
[1] Miranda v. State of Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). | September 30, 1971 |
d5c36fd4-d9f3-4ffb-ab6c-6bc0df8a9bc3 | Hutchinson v. Board of Trustees of Univ. of Ala. | 256 So. 2d 281 | N/A | Alabama | Alabama Supreme Court | 256 So. 2d 281 (1971)
In re Willie Pearl HUTCHINSON
v.
BOARD OF TRUSTEES OF UNIVERSITY OF ALABAMA d/b/a "The University of Alabama Hospitals and Clinics," a Division of Board of Trustees of the University of Alabama.
Ex parte Willie Pearl Hutchinson.
6 Div. 882.
Supreme Court of Alabama.
November 11, 1971.
Rehearing Denied January 20, 1972.
Jones, Propst & Topazi and Corley & Church, Birmingham, for petitioner.
Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for respondent.
MADDOX, Justice.
Petitioner, Willie Pearl Hutchinson, plaintiff in the trial court, and appellant in the Court of Civil Appeals, filed her petition for certiorari in this Court to review the opinion of the Court of Civil Appeals, 47 Ala.App. 460, 256 So. 2d 279. We concluded that there was probability of merit *282 in the petition and issued the writ. Briefly, the facts are as follows:
Petitioner, an expectant mother, entered University Hospital in Birmingham, as a paying patient, to give birth to her child. Upon her discharge from the hospital, she was given a baby to take home. Three days later, the hospital contacted her and told her to bring the baby back to the hospital. Upon her return to the hospital, she learned for the first time that the child she had been given was not her own. She sued the Board of Trustees of the University of Alabama, d/b/a The University of Alabama Hospitals and Clinics, for breach of contract.
Defendant filed a plea in abatement to her complaint and claimed governmental immunity from suit on the ground that it was an instrumentality of the State and was not subject to being sued. The trial court treated the plea in abatement as a demurrer and sustained it, whereupon the plaintiff took a non-suit which was the basis of the appeal to the Court of Civil Appeals. Willie Pearl Hutchinson, the petitioner, claims that the Court of Civil Appeals erroneously held that she could not maintain her action against the Board of Trustees of the University of Alabama because of the "governmental immunity" provision of our State Constitution. Constitution of Alabama, 1901, Section 14. Petitioner further says that our State Constitution which permits the State of Alabama to file suits against its citizens and does not allow suits against itself is violative of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
After careful and diligent study of the law of "governmental immunity," we are convinced that, even though the rule has been criticized as being harsh and archaic, the people of Alabama have put it in their Constitution and this Court, in prior decisions, had interpreted the "governmental immunity" provision on several occasions and has arrived at the same conclusion as did the Court of Civil Appeals.
We are aware that some jurisdictions have judicially abandoned the rule of governmental immunity in cases involving the operation of hospitals[1] and at least one court has held that governmental immunity does not square with the protection given to citizens against state action by the Fourteenth Amendment to the Constitution of the United States,[2] and the rule has been severely criticized as being unjust,[3] but even some of those who are critical of the rule of governmental immunity apparently recognize that in Alabama a constitutional amendment would be required to permit legislative implementation of a tort claims system of compensation on the state level. See Copeland and Screws, Governmental Responsibility for Tort in Alabama, 13 Ala.L.R. 296, 341.
During the early years of our history as a State our rule of state governmental responsibility was directly opposite from *283 what it is today. Our first Constitution provided:
The constitutional mandate of 1819 remained unchanged until the Constitution of 1865 was adopted when the provision granting a right to sue the state was changed to read:
In 1875, the Legislature repealed all acts granting the right to sue the State, and the Constitution of 1875 contained a provision, that "The State of Alabama shall never be made defendant in any court of law or equity." Section 15, Const. of Alabama, 1875. Section 14 of the 1901 Constitution is the same as Section 15 of the 1875 Constitution. The adoption of the 1875 Constitution closed the door to litigants who had claims against the State, and the door has remained closed continuously by subsequent constitutional provisions and court decisions interpreting those provisions.
Section 14 of the Alabama Constitution of 1901 specifically prohibits the State from being made a party defendant in any suit at law or in equity. This Court, construing Section 14, has held almost every conceivable type of suit to be within the constitutional prohibition.[4]
In Cox v. University of Alabama, 161 Ala. 639, 49 So. 814 (1909), this Court held that public institutions created by the State purely for charitable or educational purposes are a part of the State and are not subject to be sued, since Section 14, Constitution of 1901, prohibits the state from being a party defendant in any court of law or equity. The use of the words "purely for charitable or educational purposes" in Cox v. University of Alabama, supra, would seem to indicate that the Court was making a distinction between what might be classified as a "governmental" function as opposed to a proprietary one. Later decisions of this Court, however, would indicate that to place emphasis upon the word "purely" used by this Court in Cox, would probably be more fanciful than real since this Court has held on many occasions that the operation of a hospital, even though paying patients are accepted, is a "governmental function." See Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So. 2d 583 (1969); Thompson v. Druid City Hospital Board, 279 Ala. 314, 184 So. 2d 825 (1966); Clark v. Mobile County Hospital Board, 275 Ala. 26, 151 So. 2d 750 (1963); Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So. 2d 762 (1957); Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938); Laney v. Jefferson County, 249 Ala. 612, 32 So. 2d 542 (1947).
The case of Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So. 2d 817 (1969) is the only chink in the "governmental *284 immunity" wall and must be left standing alone for the proposition that a county may be sued for a breach of contract but not for a tort. In Paul, the action was against an agency of the county. Here, the action, even though attempting to follow the allegations of the Paul case to state an action in contract, is one against an agency of the State.
The wall of "governmental immunity" is almost invincible, made so by the people through their Constitution as interpreted by this Court. Our cases are clear that the operation of a hospital is a "governmental function," but even if we should classify the operation of University Hospital as being a "business function," nevertheless, the State could not be sued. In a suit against the State Docks, this Court held in State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932) that the State cannot be sued indirectly by suing its officers or agents in their official capacity when a result would be directly to affect the financial status of the State Treasury, even if the State is engaged in performing a business or corporate power.
In Garrett, Thompson and Jenkins, several members of this Court intimated that the rule of governmental immunity might not reflect their own personal or private views, and they suggested that the Legislature might desire to accept the challenge. The Legislature has not changed the rule.
We must have a reasonable respect for the doctrine of state decisis and the division of powers between the Executive, Legislative and Judicial branches of our government. Alabama may one day return to the rule of governmental responsibility with which we began as a State. The frequency of the appeals to this Court asking that the rule be changed is some evidence that the constitutional provision granting governmental immunity may have served whatever purpose it was intended to serve and maybe it should not be abandoned. But that is a question addressing itself to the Legislature in initiating and proposing an amendment to the Constitution. The Legislature already has power, without necessity for a constitutional change, to adjust claims against the State.
The Legislature, when it deems necessary, can pass relief bills to compensate individuals who have been harmed. In fact, the Legislature now provides some relief to persons injured by appropriating money to the State Board of Adjustment for payment of claims against the State. Title 55, §§ 333-344, Code of Alabama, 1940 (Recomp.1958). See The Alabama State Board of Adjustment and the Law, 19 Ala.Law. 397 (1958). Therefore, a claimant is not completely without some recourse if he suffers injury because of the action of State officials in carrying out their duties.
After review, we find no error in law in the opinion of the Court of Civil Appeals concerning the doctrine of governmental immunity.
We now come to the question raised by the petition that federal rights guaranteed to petitioner have been infringed. Petitioner contends that she has been deprived of equal protection of the law under the Fourteenth Amendment to the Constitution of the United States. We find no merit in this contention. In Palmer v. Ohio, 248 U.S. 32, 39 S. Ct. 16, 63 L. Ed. 108 (1918), the Supreme Court of the United States, in an action wherein the plaintiffs had sued the State of Ohio for damages for flooding lands by elevating the spillway of a state-maintained dam, said:
Section 14 of the Alabama Constitution operates equally against all persons and therefore cannot be discriminatory. The concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 72 L. Ed. 2d 506, reh. den. 379 U.S. 870, 85 S. Ct. 12, 13 L. Ed. 2d 76. There is no showing here that the petitioner was treated any differently than other persons standing in the same relation to the governmental action she questions. Therefore, no unequal treatment is shown and no federal right is violated.
After review, we are convinced that the judgment of the Court of Civil Appeals is due to be affirmed.
Affirmed.
MERRILL, HARWOOD and BLOODWORTH, JJ., concur.
HEFLIN, C. J., concurs in the result.
[1] Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Muskopf v. Corning Hospital Dist., 55 Cal. 2d 211, 11 Cal. Rptr. 89, 359 P.2d 457 (1961). It is interesting to note that in the Kansas case and the California case that each respective State Legislature took some action to vary the effect of each court decision. California suspended the right to maintain tort suits for a period. See Corning Hosp. Dist. v. Superior Court of Tehama Co., 57 Cal. 2d 488, 20 Cal. Rptr. 621, 370 P.2d 325 (1962); the 1970 Kansas Legislature responded to Carroll v. Kittle by the enactment of a statute (K.S.A.1970 Supp. 46-901) granting immunity to the State of Kansas, its boards, commissions, departments, agencies, bureaus and institutions. Consequently, the broad-sweeping effect of the Carroll decision was of short duration. See Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P.2d 219 (1970).
[2] Krause v. Ohio, Ohio Court of Appeals, September 30, 1971, 274 N.E.2d 321.
[3] See Borchard, Government Liability in Tort, 34 Yale L.J. 229; Copeland and Screws, Governmental Responsibility for Tort in Alabama, 13 Ala.L.R. 296.
[4] Illustrative cases where the "governmental immunity" doctrine was applied to prevent redress against the "State" include:
STATE HIGHWAY DEPARTMENT
Employers Ins. Co. v. Harrison, 250 Ala. 116, 33 So. 2d 264 (1947) (killed highway employee); Barlowe v. Employers Ins. Co., 237 Ala. 665, 188 So. 896 (1939) (injured highway employee).
STATE DOCKS DEPARTMENT
State Docks Commission v. Barnes, 225 Ala. 403, 143 So. 581 (1932), overruling the effect of Standard Oil v. United States, 25 F.2d 480 (D.C.S.D. Ala., 1928).
See also Centraal Stikstof Verkooppantoor N.V. v. Ala. St. Docks Dept., 415 F.2d 452 (1969) (5 Cir.), (docks alter ego of State and waiver of governmental immunity held to be a question of state law).
STATE SCHOOLS, HOSPITALS AND MENTAL INSTITUTIONS
White v. Ala. Insane Hosp., 138 Ala. 479, 35 So. 454 (1903);
Ala. Girl's Industrial School v. Adler, 144 Ala. 555, 42 So. 116 (1905);
Ala. Girl's Industrial School v. Reynolds, 143 Ala. 579, 42 So. 114 (1904).
Cox v. University of Alabama, 161 Ala. 639, 49 So. 814 (1909). | November 11, 1971 |
2acb3b88-653b-44ce-bdf7-560886830d21 | Giles v. Gardner | 249 So. 2d 824 | N/A | Alabama | Alabama Supreme Court | 249 So. 2d 824 (1971)
Larry H. GILES
v.
William Franklin GARDNER.
1 Div. 671.
Supreme Court of Alabama.
June 24, 1971.
*825 Walter M. Cook and James B. Kierce, Jr., Mobile, for appellant.
Chason, Stone & Chason, Bay Minette, for appellee.
MERRILL, Justice.
This is an appeal from a verdict and judgment for the plaintiff-appellee in the amount of $31,000.00 against the defendant-appellant on a two-count complaint filed as a result of an intersection collision between the plaintiff's pickup truck and the defendant's car. One count charged negligence and the second charged wantonness. The plaintiff's wanton count was charged out by the trial court. The defendant filed pleas of the general issue, contributory negligence and recoupment. After verdict and judgment, a motion for a new trial was overruled.
Appellant's first assignment of error is the refusal of the trial court to grant the defendant's requested affirmative charge with hypothesis. Most of the evidence is undisputed.
*826 The plaintiff, an adult, was traveling west and the defendant, a nineteen-year-old boy, was going south when they collided at an intersection of two dirt roads, which intersected at right angles. There were no traffic control devices. Neither driver could see a vehicle on the other road until they actually entered the intersection. There was no evidence that either driver stopped before entering the intersection. Based on skid marks left before the impact, the speed of the defendant's car prior to the collision was estimated by a State Trooper at 50 to 60 miles per hour. The trooper also estimated the speed of the plaintiff's pickup truck to be about 30 miles per hour. At one point in the trial, the plaintiff testified that his speed was 35 miles per hour prior to entering the intersection. The plaintiff did not see the defendant's car until immediately before impact. The defendant did not testify.
It is the appellant's contention that the violation of the right-of-way rule contained in Tit. 36, § 18(a), Code 1940, as amended, established contributory negligence of the plaintiff as a matter of law, which was the proximate cause of the collision. The right-of-way rule is as follows:
Generally speaking, proximate cause is a jury question. McCaleb v. Reed, 225 Ala. 564, 144 So. 28; Allman v. Beam, 272 Ala. 110, 130 So. 2d 194; and it is only when the facts are such that reasonable men must draw the same conclusion that the question of proximate cause is one of law for the courts. Morgan v. City of Tuscaloosa, 268 Ala. 493, 108 So. 2d 342; Louisville & N. R. Co. v. Courson, 234 Ala. 273, 174 So. 474.
In reviewing a trial court's refusal to grant the defendant's affirmative charge, the appellate court must consider the tendencies of the evidence in the light most favorable to the plaintiff. Smith v. Lawson, 264 Ala. 389, 88 So. 2d 322; Alabama Power Company v. Scholz, 283 Ala. 232, 215 So. 2d 447.
In the instant case, we think that a jury would be authorized to find that the proximate cause of the accident was the excessive speed at which the defendant entered the intersection rather than to find that the failure of the plaintiff to yield the right-of-way was a proximate cause of the accident. In Moore v. Cruit, 238 Ala. 414, 191 So. 252, where the defendant contended that the plaintiff could not recover because he did not yield the right-of-way under the statute, the court said:
* * * * * *
See also, Triplett v. Daniel, 255 Ala. 566, 52 So. 2d 184, where it was said that if "under the undisputed proof in the case there is a violation of § 17, Title 36, Code of 1940 (plaintiff failed to give proper sign), then such violation constitutes negligence on the part of the plaintiff as a matter of law but it would still remain a question for the jury as to whether violation of the statute proximately contributed to her injury."
We hold that the trial court did not err in refusing to give defendant's requested affirmative charge.
*827 Assignment of error two is predicated on the trial court's overruling of the defendant's objection to admitting into evidence the defendant's lack of a driver's license. The only witness presented in behalf of the defendant was the defendant's mother, who had given her son permission to use the car on the day the accident occurred. On cross examination, counsel for plaintiff asked, "You knew that he didn't have a driver's license, didn't you?" Then, without a ruling on the objection, the trial court asked, "Did he have a driver's license?" There was further objection and the trial court overruled the objection and the witness answered, "No."
Before such evidence is admissible there must be established a causal connection between the failure to have a license and the injuries received in the accident. Lindsey v. Barton, 260 Ala. 419, 70 So. 2d 633. In Chattahochee Valley Railway Company v. Williams, 267 Ala. 464, 103 So. 2d 762, proof of revocation of a driver's license was held inadmissible absent a showing of a causal connection between such revocation and the injuries received from the accident. The existence or non-existence of a driver's license does not establish the competency or incompetency of a driver. Commercial Union Ins. Co. of N. Y. v. Security Gen. Ins. Co., 282 Ala. 344, 211 So. 2d 477. In the instant case, no such causal connection is shown. Furthermore, we are of the opinion that the admission into evidence of the failure of the defendant to possess a driver's license was prejudicial error which requires a reversal. See Madison v. State, 40 Ala.App. 62, 109 So. 2d 749, cert. denied 268 Ala. 699, 109 So. 2d 755, holding that reversible error was committed in admitting evidence of the revocation of the defendant's driver's license in a case where defendant was convicted of manslaughter; and see also, Stanford v. State, 40 Ala.App. 220, 110 So. 2d 641, holding that reversible error was committed in allowing testimony that the defendant had no driver's license. That case was a criminal prosecution for leaving the scene of an accident. Although the instant case is civil, we think that the evidence admitted was prejudicial error necessitating a reversal of the judgment.
In assignment of error three, the appellant argues that reversible error was committed when the trial court permitted a State Trooper to give his opinion as to the speed of the defendant's car prior to the collision. The basis of the appellant's contention is two-fold. One, the trooper did not know the exact distance of skid marks made by the defendant's car and, two, that since the skid marks were made on a dirt road, the trooper was not rendering an expert opinion but merely "speculating or conjecturing." The trooper testified that the skid marks he found leading up to debris in the intersection were "something like 50 to 75 feet." On cross examination, the trooper estimated that the skid marks "might have been 100 feet." He did not know the exact footage. The witness also testified that he found the road torn up, apparently from a point in the intersection and leading out to where the two vehicles rested. Based on the above information, the trooper was allowed to testify that he estimated the speed of the defendant's car at approximately 50 to 60 miles per hour.
An expert, who did not observe a collision, may express an opinion as to the speed of a vehicle on the basis of skid marks if such marks were made before impact. Holuska v. Moore, 286 Ala. 268, 239 So. 2d 192; Rosen v. Lawson, 281 Ala. 351, 202 So. 2d 716; Stanley v. Hayes, 276 Ala. 532, 165 So. 2d 84. See generally, 29 A.L. R.3d, at p. 248 et seq. In the instant case, it is contended that there is an insufficient basis upon which to predicate an expert opinion due to the inexactness of the trooper's knowledge of the length of the skid marks. In all the Alabama cases cited in briefs and examined by independent research, the length of the skid marks were measured; they were not the result of a "rough estimate."
Under the facts in this case, we cannot say that the testimony of the trooper was *828 admissible when objections, general and specific, were made to his indefinite conclusions. We are not to be understood as holding that he was not an expert generally in the investigation of highway collisions. But the skid marks were not measured; his estimate was that their length was from 50 to 75 feet on direct examination and could have been as much as 100 feet on cross examination. We hold that the trial court erred in permitting the witness to give an opinion to the speed of defendant's car when it was obviously based on indefinite figures and was obviously based upon speculation and conjecture.
Assignment of error four charges that the trial court erred in allowing the State Trooper to give an opinion as to the speed of the plaintiff's pickup truck prior to the collision. There was no evidence of any skid marks made by the plaintiff's vehicle prior to impact. It appears that the trooper's opinion was based on skid marks made after impact and on the condition of the two vehicles. It is clear that the admission of such evidence, over objection, when based on skid marks made after impact, is prejudicial error. Jowers v. Dauphin, 273 Ala. 567, 143 So. 2d 167. And it has been held that an expert opinion as to speed may not be given when based solely on the physical condition of the vehicles after an accident. Williams v. Roche Undertaking Co., 255 Ala. 56, 49 So. 2d 902. Nevertheless, it appears that the admission of this evidence in the instant case was harmless error. At one point, the plaintiff testified that his speed was about 35 miles per hour prior to impact, whereas, the trooper's opinion was that the plaintiff was traveling at about 30 miles per hour. Thus, it is clear that neither the plaintiff nor the defendant was prejudiced by the admission of the trooper's testimony. We have discussed these matters because they will probably arise in a new trial.
In appellant's assignment five, it is contended that the trial judge erred in his oral charge and that such error was not cured by the giving of defendant's requested charge on same subject. In substance, the court charged that if two vehicles enter an intersection at the same time, the one on the left must yield the right-of-way to the one on the right, whereas, Tit. 36, § 18 (a), Code 1940, as amended, states that when two vehicles enter an intersection at approximately the same time, the one to the left must yield the right-of-way to the one on the right. The trial court apparently conceded that an error was made and offered to give the defendant's requested charge which contained the pertinent exact working in Tit. 36, § 18(a). The trial court did give one of the defendant's requested written charges which included the word "approximately." The better policy in dealing with the rules of the road in an oral charge is to quote the applicable statute.
Assignment six relates to the refusal of the trial court to give defendant's requested charge numbered 12. It does not appear that the refusal to give that requested charge was reversible error in that the same rule of law was covered in both the court's oral charge and the written charges given by the court. Tit. 7, § 273, Code 1940.
It is argued under assignment seven that the trial court erred in refusing to grant the defendant's motion for a new trial. Since the motion for a new trial raised the same matters we have discussed in this opinion, it is not necessary to consider that assignment.
Appellee, in brief, states that the "application of the doctrine of subsequent negligence" to the facts would be sufficient to refuse defendant's request for the affirmative charge. It is true that a count sufficiently charging simple negligence can be the basis for recovery for subsequent negligence, Gulf, M. & O. R. Co. v. Sims, 260 Ala. 258, 69 So. 2d 449, Southern Railway Co. v. McCamy, 270 Ala. 510, 120 So. 2d 695. But the instant case was not tried on the theory of subsequent negligence and the trial court did not instruct the jury on *829 that subject. Under those facts, the case will not be reviewed here on a theory different from that on which the trial was had. Barfield v. Wright, 286 Ala. 402, 240 So. 2d 593, Southern Railway Co. v. Terry, 268 Ala. 510, 109 So. 2d 919.
For the errors noted in the opinion, the judgment of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LAWSON, HARWOOD and MADDOX, JJ., concur.
HEFLIN, C. J., concurs in the result. | June 24, 1971 |
d6c0127a-4bc6-4983-ba0a-a8fe844e61ef | EMPLOYERS NATIONAL INSURANCE COMPANY v. Holliman | 248 So. 2d 717 | N/A | Alabama | Alabama Supreme Court | 248 So. 2d 717 (1971)
EMPLOYERS NATIONAL INSURANCE COMPANY, a Corporation,
v.
Walter Cleveland HOLLIMAN, Jr., et al.
6 Div. 799, 799X.
Supreme Court of Alabama.
May 27, 1971.
Rehearings Denied June 17, 1971.
*718 Phelps & Owens, Tuscaloosa, for appellant.
*719 Turner & Turner, Tuscaloosa, for appellee Abbie E. Stuart.
Roberts & Davidson, Tuscaloosa, for appellee Phoenix Insurance Co.
BLOODWORTH, Justice.
This is an appeal from a final decree rendered in a declaratory judgment proceeding in equity instituted by the Employers National Insurance Company to determine whether a policy of automobile liability insurance which it issued to respondent, Robert P. Sellers, the named insured, was in full force and effect at the time of an accident.
The automobile purportedly covered by the liability policy, was being operated by respondent, Walter C. Holliman, Jr., at the time of the accident and resulted in injuries to respondent, Mrs. Abbie Stuart. Also joined as respondent is The Phoenix Insurance Company, the uninsured motorist insurance carrier for Mrs. Stuart. A crossbill was filed by Mrs. Stuart against Phoenix seeking a determination that she is entitled to coverage under the uninsured motorist provisions of her policy with Phoenix. Phoenix's demurrer to the crossbill was sustained by the trial court. The case was heard by a jury with its findings being formulated as answers to interrogatories submitted to it.
Employers takes this appeal from the trial court's decree finding that the liability policy issued by Employers was in full force and effect at the time of the automobile accident. A cross-appeal has been filed by Mrs. Stuart, assigning as error the action of the trial court in sustaining the demurrer to her cross-bill.
The primary question before us is whether Sellers (the named insured) possessed an insurable interest in the automobile at the time of the accident sufficient to support the liability insurance policy.
We have concluded that no such insurable interest existed; consequently, the trial court's decision must be reversed. Likewise, we conclude that there was reversible error in the trial court's action in sustaining demurrer to Mrs. Stuart's cross-bill. In this posture of the case, we need not consider other grounds assigned as error.
The evidence adduced at the trial indicated that Sellers (the named insured) agreed to assist a friend, Walter C. Holliman, Sr. (sometimes referred to as the "principal operator" or "Holliman, Sr."), in purchasing an automobile. A car was selected by Holliman, Sr., and purchased in March 1967 with Sellers signing a promissory note for the purchase price. The bill of sale and license tag registration were issued in the name of Sellers. Holliman, Sr., took possession of the car, garaged it at his home, and made all payments on the note. In October 1967 Sellers applied for, and secured, an automobile liability insurance policy on the automobile through the Alabama Assigned Risk Plan, the policy being issued in his name by Employers. In his application for insurance, Sellers represented that he was the operator of the car 90% of the time and that David C. Holliman (a son of Holliman, Sr.) operated the car 10% of the time. The evidence indicates that Holliman, Sr., paid all of the premiums on this policy. In November 1967, the license tag registration which originally had been issued in Sellers's name, was transferred by him to Mary Holliman, the wife of Holliman, Sr. On September 30, 1968, while being operated by Walter Holliman, Jr. (a son of Holliman, Sr.), the automobile collided with a car owned by Mrs. Stuart, in which she was riding as a passenger, resulting in her injuries.
After Mrs. Stuart instituted suit against Walter Holliman, Jr. for personal injuries, Employers initiated this declaratory judgment action seeking a determination that the policy was not in full force and effect at the time of the accident and praying that it be relieved from defending Mrs. Stuart's suit and from paying any final judgment rendered therein.
*720 At the conclusion of the trial eight interrogatories were submitted to the jury and were answered as follows:
The trial court confirmed and adopted the jury's findings in its final decree and declared that on the date of the accident Sellers had an insurable interest in the automobile.
On this appeal, Employers argues that the trial court's finding of an insurable interest in Sellers on the date of the accident was erroneous. Employers points to our recent decision in Bendall v. Home Indemnity Company, 286 Ala. 146, 238 So. 2d 177 (1970), rendered subsequent to the trial court's decree in this case, as being dispositive of this issue.
Appellee Phoenix (Mrs. Stuart's insurer) replies that the facts support the trial court's conclusion, and that the Bendall decision is not governing because of factual distinctions. Furthermore, Phoenix contends *721 that there was a "material variance" between the pleadings and proof in the trial of the cause.
We think that our decision in Bendall does present a factual situation analogous to this case. In Bendall, the named insured Mrs. Davis, and her husband, had signed a promissory note for an automobile purchased by her sister, Wanda McCutcheon. The bill of sale and license tag registration for the car were issued to Wanda, and Wanda made all payments on the note. An automobile liability insurance policy on the car was issued by the Home Indemnity Company to Mrs. Davis. Wanda was involved in an accident while driving the car, after which Home Indemnity Company instituted a declaratory judgment proceeding seeking a declaration that the policy was void. On appeal, this court affirmed the trial court's finding that the named insured (Mrs. Davis) had no insurable interest in the automobile sufficient to support the liability coverage of the policy since the named insured was not primarily liable for injury to persons or property arising out of the automobile's operation.
In discussing the nature of an insurable interest under an automobile liability policy, we quoted extensively from Ocean Accident & Guarantee Corporation v. Bear, 220 Ala. 491, 125 So. 676, where it was observed:
Likewise in Bendall, we quoted from Blashfield Automobile Law and Practice, Third Edition, Vol. 7, § 291.4, at pages 164 and 165:
After recounting the pertinent facts, our court concluded in Bendall that it found "nothing to show that Mrs. Davis had such abiding interest in the use of the car in her business, or otherwise, that she might become legally liable to others for injuries resulting from its operation."
We think the Bendall decision and the cases cited therein clearly recognize that the question of what constitutes an insurable interest under an automobile liability policy involves a determination as to whether the named insured would be liable for injury to persons or property which might arise out of the operation of the described automobile. Applying this test to the case at bar, we conclude that the facts do not sustain a finding of an insurable interest in Sellers.
A comparison between the similar and dissimilar facts in Bendall and the present case may better illustrate our conclusion.
In each case we find the following similar facts: (1) The note to finance the purchase of the car was signed by the named insured; (2) the insurance policy was issued in the name of the obligor on the note; (3) the named insured used the car occasionally but never claimed any interest therein; (4) the named insured always *722 asked permission of the principal operator to use the car; (5) the named insured never limited the principal operator's use of the car; (6) the principal operator never asked the named insured's permission to use the car; (7) payments on the note were always made by the principal operator; (8) the car was garaged at the home of the principal operator; (9) the insurance premiums were paid by the principal operator; (10) the insurance policy was kept by the principal operator.
The notable dissimilar fact in the two cases is that in Bendall the automobile was purchased by, and the license tag issued to, the principal operator (Wanda), while in the present case (although the automobile was selected by Holliman, Sr.) the bill of sale and tag were issued to the obligor on the note (Sellers). However, we think this dissimilarity loses its significance, if any, when it is considered that in the instant case, Sellers transferred the license tag registration to Mrs. Holliman prior to the accident. In our opinion, the facts clearly demonstrate that Sellers did not have, at the time of the accident, such a relationship to Mr. or Mrs. Holliman, Sr. so that Sellers would be liable for injury to persons or property which might arise out of the operation of the car.
Nonetheless, Phoenix contends that Sellers did possess an insurable interest and cites in support of this theory Title 36, § 74(46) (b) (c), § 74(55) (Motor Vehicle Safety-Responsibility Act). The argument advanced is that these sections require the Director of Public Safety to suspend the license of each operator and all registrations of each owner of a motor vehicle involved in an accident resulting in personal injury or property damage if no proof of financial responsibility is furnished. Since it is suggested that Sellers could have his registration on the automobile involved in the accident suspended, as well as those of other automobiles owned by him, in this respect he did possess an insurable interest. The answer to this contention is self-evident. Sellers was not at the time of the accident the registered owner of the vehicle involved in the accident so that he would risk the loss of registration. We reiterate our previous conclusion that the test of an "insurable interest" in an automobile liability policy involves a determination as to whether the named insured would be liable for injury to persons or property arising out of the operation of the insured automobile.
Phoenix further contends that there was a "material variance" between the pleading and proof offered by Employers. It is argued that Employers alleged in its bill of complaint that Sellers transferred title to the automobile to Holliman, Sr. while the evidence tended to indicate that the license tag was in fact transferred to Mrs. Holliman. We do not agree that this was a "material variance." The relevant fact is that the license tag was transferred from Sellers's name; this the bill alleged and this the proof showed. The fact that the registration of the automobile was not in Sellers's name is material, the fact as to whom the registration was listed is not material, in determining whether Sellers had an insurable interest. Additionally, we have said that it is "well settled that in equity it is not necessary to accurately prove every detail of averment as alleged provided that proof is made of such averments as are essential to the relief sought." Bobo v. City of Florence, 260 Ala. 239, 69 So. 2d 463; Food Centers, Inc. v. Davis, 286 Ala. 629, 244 So. 2d 576.
Nor, do we believe that the jury's findings militate against our conclusion. We have carefully examined the questions submitted to the jury. None involved the issue as to whether the named insured, Sellers, had an insurable interest in the automobile at the time of the accident. Rather, this issue was determined by the trial judge after the jury's findings were reached.
Likely, the very able and conscientious trial judge would have reached a different *723 conclusion had our decision in Bendall been announced prior to the rendition of his decree.
Lastly, Phoenix suggests that the presumption in favor of findings of fact made by a trial judge when the evidence is heard ore tenus and is disputed, precludes our reversal of the decree unless it is determined to be plainly and palpably wrong. But, no such presumption obtains where the trial judge took an erroneous view of the law as applied to the facts. Brown v. Oldham, 263 Ala. 76, 81 So. 2d 331 (1955); Pruitt v. Key, 281 Ala. 433, 203 So. 2d 450 (1967). We think such is the situation here where the trial court made a finding of an insurable interest in Sellers. Therefore, the presumption suggested has no application.
We next turn to a consideration of the propriety of the trial court's action in sustaining Phoenix's demurrer to the cross-bill filed by Mrs. Stuart.
In discussing the nature of a demurrer filed in a declaratory judgment action, Mr. Justice Goodwyn writing for the court in Moore v. City of Fairhope, 275 Ala. 506, 507, 156 So. 2d 366, 367 (1963), observed:
Here, though the trial court sustained demurrer to the cross-bill, it made no reference to any of the grounds of demurrer addressed to a specific aspect. In such an instance, on appeal we consider only those grounds addressed to the cross-bill as a whole. Clark v. Case, 267 Ala. 229, 100 So. 2d 747 (1957); City of Talladega v. Ellison, 262 Ala. 449, 79 So. 2d 551 (1955). Thus, the trial court's ruling sustaining the demurrer should be reversed if any aspect of the cross-bill is free from the demurrer interposed. Clark v. Case, supra; Morgan Plan Co. v. Vellianitis, 270 Ala. 102, 116 So. 2d 600 (1959).
The grounds of demurrer addressed to the bill as a whole claim, in substance, that the bill does not state a justiciable controversy because it seeks a determination which is moot or premature, the bill is multifarious, and the bill does not contain equity.
The cross-bill alleges inter alia that Mrs. Stuart was injured in an automobile accident as a proximate consequence of the negligence of Holliman, Jr.; that the automobile being driven by Holliman, Jr., was insured by a liability policy issued by Employers, but that Employers has denied coverage under said policy; that Phoenix had issued to Mrs. Stuart, prior to the accident, uninsured motorist insurance coverage insuring her against loss for bodily injuries sustained as a result of the negligent operation of an uninsured motor vehicle; and, that Phoenix claims that it is not obligated under the terms of its uninsured motorist policy until the liability policy issued by Employers is declared to be null and void. The cross-bill further avers that a justiciable controversy exists between Mrs. Stuart and Phoenix as to whether she is insured, and as to the amount of coverage to which she is entitled under the uninsured motorist provisions of her policy. The cross-bill also seeks a money judgment.
We believe that the allegations of the cross-bill are sufficient to show that a justiciable controversy exists between Mrs. Stuart and Phoenix. It follows then that the trial court erred in sustaining the demurrer to the cross-bill.
*724 To summarize, we hold that the automobile liability policy issued by the Employers National Insurance Company to Robert P. Sellers was not in full force and effect at the time of the accident because the named insured had no insurable interest in the described automobile. We also hold that the demurrer of The Phoenix Insurance Company to Mrs. Stuart's cross-bill should have been overruled because the cross-bill alleged a justiciable controversy between the parties. The decree of the trial court is due to be reversed and remanded for entry of a decree in conformity with this opinion and for further proceedings on the cross-bill.
Reversed and remanded with directions.
HEFLIN, C. J., and SIMPSON, COLEMAN and McCALL, JJ., concur. | May 27, 1971 |
df1aabb9-0edd-4e8d-81d9-0c5db9bdb22c | Preferred Risk Mutual Insurance Co. v. Holmes | 251 So. 2d 213 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 213 (1971)
PREFERRED RISK MUTUAL INSURANCE CO.
v.
Houston HOLMES.
1 Div. 648.
Supreme Court of Alabama.
July 22, 1971.
Baker, McDaniel, Hall & Parsons, Birmingham, for appellant.
Leon G. Duke, Jr., Mobile, for appellee.
MADDOX, Justice.
Preferred Risk Mutual Insurance Company brought a bill for declaratory judgment against its insured, Houston Holmes, *214 seeking judicial relief from an arbitration award made pursuant to the uninsured motorist provisions of the policy of automobile liability insurance issued to Holmes which contained the usual uninsured motorist provisions affording coverage up to the limit of $10,000 for one person.
Holmes was involved in an automobile accident on August 29, 1967 with an uninsured motorist and made claim against Preferred Risk for the benefit of the uninsured motorist coverage.
At the time of the accident, Holmes was employed and received from Continental Insurance Company, his employer's Workmen's Compensation carrier, the sum of $6,760.50 in benefits pursuant to the Workmen's Compensation Laws of the State of Alabama. The uninsured motorist provisions of Preferred Risk's policy provided that any loss payable thereunder would be reduced by the amount paid to the insured under any Workmen's Compensation Law.
The parties agreed to arbitrate "the issue of the amount owed" and arbitration was duly had before a board of three arbitrators on December 29, 1969. A copy of the award was attached to the complaint. The parties stipulated the undisputed facts, including the facts that the uninsured motorist was at fault and that Holmes had been paid $6,760.50 in Workmen's Compensation benefits.
On January 2, 1970 the arbitrators made their findings and held that Holmes was entitled to recover $6,624.75. Holmes requested that the arbitration award be entered as a judgment pursuant to the provision of Title 7, § 830, Code of Alabama, 1940, on February 5, 1970. Preferred Risk filed on February 26, 1970 this bill for declaratory judgment, asking that the court declare the rights, status and legal relations of the parties under the terms of the policy, and to order that the provision for reduction from any loss payable under the uninsured motorist part of the policy by the amount of any Workmen's Compensation benefits was valid and lawful. The insurance company also asked that the court find that the award made by the arbitrators was invalid, illegal and unenforceable.
Holmes filed a demurrer to the complaint setting out as grounds that the bill of complaint showed affirmatively that the issues between the parties had been judicially determined by a Board of Arbitrators correctly selected, and that the court was without jurisdiction of the bill for declaratory judgment for the reason that another action or proceeding was pending in which the same persons were parties and in which the identical issues were adjudicated. The trial court sustained Holmes' demurrer and dismissed the cause with prejudice, hence this appeal.
Appellant raises three basic questions: (1) Did the trial court err in sustaining the demurrer? (2) Is the policy provision reducing the uninsured motorist coverage by the amount paid under Workmen's Compensation Law valid? (3) Was the legality or enforceability of the reduction clause subject to arbitration?
As we view the matter, an answer to question (2) of the validity of the policy provision reducing the uninsured motorist coverage by the amount paid under Workmen's Compensation Laws will be dispositive of the dispute between the parties.
We consider first the action of the trial court in sustaining the demurrer to the bill for declaratory judgment.
The appellant, in its bill in the trial court, asked for a declaration of rights, as follows:
While counsel for both sides have not agreed on the issues or that we should consider the matter on demurrer, (City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So. 2d 658 (1949); Mobile Battle House v. City of Mobile, 262 Ala. 270, 78 So. 2d 642 (1955), we do not believe that the trial court's action in sustaining the demurrer, even if error, which we do not decide, should work a reversal. Error to warrant reversal must be prejudicial. In Schneider v. Mobile County, 284 Ala. 304, 224 So. 2d 657 (1969), Mr. Justice Lawson, speaking for the Court, said:
Without question, the point on which the appellant sought a declaration of rights was the validity of the policy provision reducing the uninsured motorist coverage by the amount paid under Workmen's Compensation Laws. All the relief sought, by way of declaration or otherwise, was incidental to the validity of this policy provision. We agree with the appellant that at the time its brief was filed on October 31, 1970, this question was one of first impression in this Court. But, since then, this Court has decided that such a provision which reduces the amount of uninsured motorist coverage is invalid and unenforceable.
In State Farm Mutual Automobile Insurance Co. v. Cahoon, 287 Ala. ___, 252 So. 2d 619 (decided May 13, 1971), the Court held that under our Uninsured Motorist Act, (Act No. 866, Acts of Alabama 1965, p. 1614, found in Title 36, § 74(62a), Code of Alabama, 1940, Recomp.1958), an insurer cannot avoid the liability imposed by our Uninsured Motorist Act by inserting into a policy a liability limiting clause restricting an insured from recovering actual damages suffered, within the limits of a policy, where premiums have been paid for such uninsured motorist coverage, even though an insured has Workmen's Compensation benefits available to him. This Court *216 reached a similar conclusion in Safeco Insurance Co. v. Jones, 286 Ala. 606, 243 So. 2d 736 (1970). Both the State Farm and Safeco opinions contain extensive discussion of authorities from other jurisdictions and we deem it unnecessary to reiterate what was said in those decisions.
In reaching the result we have, we express no opinion on the question whether a declaratory judgment action is appropriate in instances where the parties have agreed to arbitrate, an award is made, and no appeal is taken from such award. Neither do we express an opinion on the question of what issues are arbitrable under the arbitration clause here involved.
In view of what we have said, the judgment of the lower court is due to be affirmed.
Affirmed.
LAWSON, MERRILL, HARWOOD and McCALL, JJ., concur. | July 22, 1971 |
ca2e3591-d111-4e3a-bdf2-b4e0a1ffa2b6 | Smith v. Houston County Hospital Board | 255 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 328 (1971)
James Edward SMITH
v.
HOUSTON COUNTY HOSPITAL BOARD.
4 Div. 412.
Supreme Court of Alabama.
December 2, 1971.
Ramsey & Johnson, Dothan, for appellant.
Alto V. Lee, III, William L. Lee, III, William G. McKnight, Dothan, for appellee.
McCALL, Justice.
The plaintiff appeals from a judgment of voluntary nonsuit suffered by him because of an adverse ruling of the trial court in sustaining the defendant's demurrer to the amended complaint which consists of counts three through eight inclusive.
The question is what form of action is stated in these several counts; that is, do *329 they allege an action ex contractu or ex delicto? The plaintiff argues that count three of the amended complaint avers a breach of an implied contract wherein and whereby:
Count four is much the same as count three above, but adds to the charging part "and in violation of the implied contract to use reasonable skill and diligence, administered the said medication in such a way as to inject" it into the nerves of the plaintiff's right arm.
Count five is likewise similar to count three, but adds that the defendant impliedly contracted to furnish said special facilities and administer the said medication in a workmanlike manner. The wrong charged is that in violation of the implied contract to offer the said facilities and to perform said services in a workmanlike manner, the defendant administered the said medication in such a way as to inject it into the nerves of the plaintiff's right arm.
The plaintiff concedes in his brief that count six does not sufficiently state the implied contract, so we will not consider this count.
The plaintiff characterizes count seven as an action for the breach of an implied contract, the gravamen of which is that the contract was to administer medication and that when the medication was administered, it was administered into the nerve of the plaintiff thereby crippling his arm.
The plaintiff contends that the form of all of these counts sounds in contract. After carefully reading and studying each count, we consider that they do *330 not aver a breach of any alleged promise made by the defendant hospital, but they aver a breach of a duty implied in law, a tort. The duty alleged to have been violated, is not averred in the count as a term of the contract to be performed, as may be the case in an express contract; and the law does not imply such a contractual duty. The duty arises not in the terms of the contract, but because the law imposes the duty not to wrongfully injure the plaintiff in doing the act. When that duty is breached, an action in tort only is available, because no express or implied contract is breached.
In Waters v. American Cas. Co. of Reading, Pa., 261 Ala. 252, 258, 73 So. 2d 524, 529, we said:
And in Vines v. Crescent Transit Co., 264 Ala. 114, 119, 85 So. 2d 436, 440, the court said:
We think the distinction between the nature of the two actions, contract and case, is well stated in Mobile Life Insurance Co. v. Randall, 74 Ala. 170, at 178, where the court said:
Garig v. East End Memorial Hospital, 279 Ala. 118, 182 So. 2d 852, is a case in point as to whether an alleged action should be deemed to sound in case (tort) or in assumpsit (contract). There the plaintiff alleged that she contracted with the defendant for general hospital care and treatment for her injury, and that she performed her contract by paying all hospital charges. She further averred that the defendant breached the contract by moving or turning her in bed in such a rough manner as to proximately cause the prosthesis, attached to the femur in her leg, to come out of its socket. The count then characterized this conduct as a breach of contract. In its opinion, the court said:
The case of Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So. 2d 817, can be distinguished from Garig, supra, and the counts under consideration. In Paul, the plaintiff alleged that for a valuable consideration the defendant undertook or promised to "nurse and care for the said Plaintiff * * * and to furnish * * * all such special facilities offered by it in the regular course of its operation" of the defendant hospital for the purpose of delivering or giving birth to the plaintiff's expectant child. The plaintiff further alleged that after promising to do so, the defendant did not perform or fulfill its contract to nurse and care for the plaintiff and to assist in the delivery or birth of her expectant child, but on the contrary totally failed to perform its promise. The court held that the complaint charged the defendant with a failure to perform the contract, but in so holding, the court further said that had the defendant undertaken to perform by administering to the plaintiff in the delivery of her child, and performed its duty in a negligent manner, the plaintiff's cause of action would have been based upon negligence and barred under the doctrine of governmental immunity.
In count eight the plaintiff alleges as follows: "defendant agreed to administer certain medication in the form of a shot or injection in a skillful and workmanlike manner in consideration for which the plaintiff agreed to pay and did pay the sum of Five ($5.00) Dollars." The breach averred is: "The defendant administered the said medication in an unskillful and unworkmanlike manner in such a way as to inject the said medication into the nerves of the plaintiff's right arm, * * * and as a proximate consequence thereof, the plaintiff's right arm was rendered permanently damaged * * *."
It is to be noted that this count does not allege that as a specific term of the contract, the defendant was required to administer the medication in a skillful and workmanlike manner. In the absence of express terms to this effect in the contract such terms will not be implied. Garig v. East End Memorial Hospital, supra; Waters v. American Casualty Co., supra. We cannot determine whether the alleged agreement to administer in a skillful and workmanlike manner is one that arose by implication in law, the breach of which gives rise to a tort action, or one, created by express terms of the contract, the breach of which gives rise to an action in assumpsit. In such case, we must presume the former since all presumptions are indulged against the pleader on demurrer. Ramsey v. Sentell Oil Co., 280 Ala. 475, 195 So. 2d 527; Vulcan Materials Co. v. Grace, 274 Ala. 653, 151 So. 2d 229; McKinley v. Simmons, 274 Ala. 355, 148 So. 2d 648. If the plaintiff is to rely on contract as his form of action, he should allege that the defendant agreed, as a term of the contract, to perform with reasonable care, skill, and diligence, because there is no implied contract or promise to do so. Garig, supra.
The defense of governmental immunity was set up in the former litigation between these same parties and was held to bar recovery in an action ex delicto. Smith v. Houston County Hospital Board, 284 Ala. 733, 223 So. 2d 585. Therefore, the plaintiff, having failed to state his cause of action in contract, the judgment is due to be affirmed.
Affirmed.
COLEMAN and BLOODWORTH, JJ., concur.
*332 HEFLIN, C.J., concurs in the result.
MADDOX, J., concurs specially.
HEFLIN, Chief Justice (concurring in the result).
I concur in the result of affirmance, but not in the language of the opinion.
MADDOX, Justice (concurring specially).
I believe this appeal to us for the second time points out the futility of attempting to widen the crack made in the "governmental immunity" wall by Paul v. Escambia County Hospital Board, 283 Ala. 488, 218 So. 2d 817 (1969).
My own personal view is that this Court should have never insulated county operated hospitals from tort liability in cases involving paying patients on the ground that counties operating such hospitals are engaged in a "governmental function." But it has, and not on just one occasion, but on several. See Jenkins v. Houston County Hospital Board, 284 Ala. 180, 223 So. 2d 583 (1969); Thompson v. Druid City Hospital Board, 279 Ala. 314, 184 So. 2d 825 (1966); Clark v. Mobile County Hospital Board, 275 Ala. 26, 151 So. 2d 750 (1963); Garrett v. Escambia County Hospital Board, 266 Ala. 201, 94 So. 2d 762 (1957); Moore v. Walker County, 236 Ala. 688, 185 So. 175 (1938); Laney v. Jefferson County, 249 Ala. 612, 32 So. 2d 542 (1947).
As I said as author of the opinion in Hutchinson v. University Board of Trustees, (decided November 11, 1971), 287 Ala. ___, 256 So. 2d 281, the question of governmental responsibility is a pressing one, but the Legislature is the body which will have to deal with it in view of the interpretations which have been heretofore rendered with regard to governmental immunity. | December 2, 1971 |
52f964f0-cf04-4dfa-835e-dce0c48bc83a | Cobbs, Allen & Hall, Inc., and CAH Holdings, Inc. v. EPIC Holdings, Inc., and McInnis. | N/A | 1190687 | Alabama | Alabama Supreme Court | REL: March 26, 2021
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, 2020-2021
____________________
1190687
____________________
Cobbs, Allen & Hall, Inc., and CAH Holdings, Inc.
v.
EPIC Holdings, Inc., and Crawford E. McInnis
Appeal from Jefferson Circuit Court
(CV-14-904935)
MENDHEIM, Justice.
Cobbs, Allen & Hall, Inc. ("Cobbs Allen"), and CAH Holdings, Inc.
("CAH Holdings") (Cobbs Allen and CAH Holdings are referred to
1190687
collectively as "CAH"), appeal from a summary judgment entered against
them and in favor of EPIC Holdings, Inc. ("EPIC"), and EPIC employee
Crawford E. McInnis, with respect to CAH's claims of breach of contract
and tortious interference with a prospective employment relationship. We
affirm in part, reverse in part, and remand.
I. Facts
This is the second time these parties have been before us. In Cobbs,
Allen & Hall, Inc. v. Epic Holdings, Inc., 224 So. 3d 157 (Ala. 2015), this
Court affirmed, without an opinion, the Jefferson Circuit Court's denial
of a preliminary injunction sought by CAH against EPIC, McInnis, and
other defendants not relevant to the present action. Because the present
action stems from a settlement agreement reached by the parties in that
original action, it is necessary to briefly relate some of the facts
underlying the original action.
Cobbs Allen is an Alabama corporation with its principal place of
business in Jefferson County. CAH Holdings, a Delaware corporation, is
the parent corporation of Cobbs Allen. Cobbs Allen is a regional insurance
and risk-management firm specializing in traditional commercial
2
1190687
insurance, surety services, employee-benefits services, personal-insurance
services, and alternative-risk financing services. It is undisputed that
CAH Holdings is a family-run business: Bruce Denson, Sr., is the
chairman of the board, Grantland Rice III is the chief executive officer,
Grantland Rice IV is the chief operating officer, and Bruce Denson, Jr., is
the president. The Rices and the Densons control the majority, but,
importantly for this case, less than 75 percent, of the stock in CAH
Holdings. Employees who are "producers" for CAH have the opportunity
to own stock in CAH Holdings, provided they meet certain sales
thresholds, known as a "validation" number." In the insurance-brokerage
business, a producer sells insurance products and acquires new business.
For CAH Holdings, the equity arrangement in the company is dictated by
the "Restated Restrictive Stock Transfer Agreement" ("the RSTA").
For several years, McInnis and other individuals who ended up being
defendants in the first action were producers for CAH, and McInnis was
also a shareholder in CAH Holdings. In the fall of 2014, a dispute arose
between CAH and McInnis and those other producers concerning the
management of CAH. That disagreement led McInnis and other CAH
3
1190687
producers to have contact with EPIC, a competitor of CAH.1 CAH alleged
that McInnis and the other producers had violated restrictive covenants
in their employment agreements with the aim of helping EPIC. Because
of the dispute, CAH fired McInnis, allegedly "for cause," and in November
2014 McInnis went to work for EPIC, becoming the local branch manager
at EPIC's Birmingham office.
In December 2014, CAH commenced an action against EPIC,
McInnis, and other defendants, alleging that McInnis and other former
employees had breached restrictive covenants in their employment
agreements and that EPIC had aided and abetted those breaches. CAH
sought preliminary and permanent injunctive relief prohibiting McInnis
and the other former employees from further breaching those covenants.
McInnis and the other former employees filed a counterclaim against CAH
alleging, among other things, breach of contract and wrongful
termination. The circuit court denied CAH's request for a preliminary
1EPIC is a Delaware corporation with its principal place of business
in California.
4
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injunction, and in the first appeal this Court affirmed the circuit court's
judgment.
In January 2018, on the eve of trial, the parties reached a
"Settlement Agreement and Mutual Release" concerning all claims they
had asserted against one another ("the settlement agreement"). The
settlement agreement provided that the circuit court would retain
jurisdiction "for the resolution of any disputes that arise related to the
[settlement agreement]." Additionally, paragraph 11 of the settlement
agreement provided:
"11. The Parties will take reasonable efforts to instruct their
officers, directors, shareholders, accountants, financial
advisors, and attorneys not to disparage any other party. The
statement: 'The Parties were able to reach a mutually
agreeable business resolution' is not disparagement under this
provision. The terms of this non-disparagement provision
apply, without limitation, to any generalized comments about
fee resolution of this case to any trial reporting services."
(Emphasis added.) As a party to the settlement agreement, McInnis read
the settlement agreement before signing it. According to McInnis, before
executing the settlement agreement, Dan Crawford, EPIC's executive vice
5
1190687
president and general counsel, discussed the settlement agreement with
him:
"A. Okay. [Dan Crawford] told us that we had to follow what
the agreement said, and there were a couple of different
provisions in there, one being the do not disparage provision
that were highlighted to us. That provision along with the
particular clients that we were not supposed to solicit business
from for a period of time. Those were the two main ones.
"[Counsel for CAH:] Did Mr. Crawford tell you that you were
not to disparage anyone at Cobbs, Allen & Hall?
"A. He did.
"Q. Okay."
Crawford testified that, a month after the settlement agreement was
executed, EPIC held an executive-committee meeting in California at
which Crawford told EPIC's senior corporate management about the
settlement agreement:
"[Counsel for CAH:] And what did you tell them?
"A. I told them -- I went further than what Paragraph 11 said,
and I said to everybody in the room that, 'The Cobbs Allen
settlement -- the Cobbs Allen case in Birmingham has been
resolved. It's the subject of a confidential Settlement
Agreement, and that no one at the company should talk about
the terms of the Settlement Agreement.' I went further, even
though there's no requirement to do so, and said, 'I don’t want
6
1190687
anybody talking about the facts and circumstances and the
evidence of the litigation.' And I said, 'If you are contacted by
anybody to talk about this, you should either direct those
people to me or respond with the agreed statement in the
Settlement Agreement.' "
In June 2018, CAH began negotiating with Michael Mercer, an
account executive in the Houston, Texas, office of Lockton Insurance
Brokers ("Lockton"), in an attempt to have Mercer come work as a
producer at Cobbs Allen's Houston office. As an account executive,
Mercer's responsibilities for Lockton focused on handling existing client
needs and maintaining client relationships. CAH's offer to become a
producer was appealing to Mercer because of the potential for an
increased salary and benefits, including the opportunity to become a
stockholder in CAH Holdings, something that was not possible for Mercer
at Lockton. Mercer orally accepted a job offer from CAH extended to him
on July 22, 2018, and he tendered his resignation from employment to
Lockton. Lockton then made a series of counteroffers to Mercer in an
effort to keep him from leaving Lockton for CAH. CAH, in turn, increased
its offers to Mercer each time Lockton offered more compensation to
Mercer for staying with Lockton. On July 29, 2018, Mercer orally
7
1190687
reaffirmed his commitment to take CAH's job offer. Despite doing so,
Mercer admitted in his deposition that, at the time he reaffirmed his
commitment, he was still struggling with whether moving to CAH was the
right decision. Mercer testified that one factor that made him have second
thoughts was that CAH would require him to reach a validation number
of $795,000 in annual sales -- three times his base salary -- in order to
purchase equity in CAH Holdings, and he was not sure he could reach that
number. On a related note, Mercer also admitted to having difficulty
understanding the RSTA.
Mercer told John Stillwell, a producer at Lockton, about his
difficulty in deciding what to do concerning CAH's job offer. Stillwell
suggested that Mercer talk to a friend of his, McInnis, who had formerly
worked for CAH. Mercer was open to talking to McInnis because, as
Mercer put it: "At that point, you know, I'm willing to talk to anybody
who has an -- has an opinion so I can kind of make my decision, and
Stillwell recommended that I speak to Crawford [McInnis]." Mercer called
McInnis twice: the first time on July 30, 2018, a conversation that lasted
about 15 minutes, and the second time on July 31, 2018, a conversation
8
1190687
that lasted about 5 minutes. Neither Mercer nor McInnis could remember
the substance of the second conversation, but in his deposition Mercer
summarized what he remembered about the July 30, 2018, conversation.
"[Counsel for EPIC:] And what did Mr. McInnis tell you that
you recall?
A. Uhm -- well, I’m not a finance person so I had a lot of
questions about how [CAH's equity plan] worked and he
articulated it well, but I still found -- you know, it was still
confusing to me because it wasn’t a -- you know, 'We’re going
to give you 5 percent of the company and that’s you know,
that's yours in the event that we sell the company.'
"So it was -- it was kind of a confusing arrangement. I,
you know, gathered from the conversation that [McInnis] had
had some grievance with Cobbs [Allen] ....
"....
"A. Okay. Well, I'll just -- okay. So I cannot recall if [McInnis]
had left the company; and when he left, there was, you know,
an issue with -- with -- between the two organizations or if he
was asked to leave the company and, then, there was the
issue. So I can't remember what the order of that was, but I
knew there was some -- you know, some frustration on his part
about the way that had -- that had sort of unraveled.
"Q. Okay. That is, his relationship with the Cobbs Allen?
"A. Correct.
9
1190687
"Q. And, so, you gained that understanding during the
communication you had with Crawford McInnis?
"A. That's correct.
"Q. That he'd had some, as you put it, grievance with the
company?
"A. Yes.
"....
Q. All right. And as I understand it -- well, what beyond that
did you gain from this conversation with Mr. McInnis, other
than what you’ve already told us?
"A. I mean that was the extent of it. He explained objectively
in his opinion how the equity structure worked.
"....
"Q. Okay. Well, just to be clear, the first conversation that
you had with Mr. McInnis, the one that lasted 10 to 15
minutes, that was a conversation that had been initiated or
suggested by your colleague at Lockton, Mr. John Stillwell,
correct?
"A. That's correct.
"Q. And the second communication, the one that was a couple
of days later that was a very short one, that's a communication
that you [had] initiated with a follow-up question?
"A. Yes.
10
1190687
"Q. Okay. And you don't remember the details of the
follow-up question at this time?
"A. No, I do not.
"Q. Did Mr. -- can you state with certainty that at any of these
conversations that Mr. McInnis told you that if you griped
about the management team at Cobbs Allen that you would
lose your stock? Can you state that with certainty?
"A. That -- that's too much of a specific comment.
"Q. Okay. So, you cannot state that with certainty?
"A. No, I cannot.
"....
"Q. All right. So, what did you tell [Robert Plumb, a CAH
employee at Cobb Allen's Houston office,] about your
communication with Mr. McInnis?
"A. I explained what we talked about and, obviously, the -- the
tone of the conversation was that, again, that [McInnis] had
felt aggrieved about what happened with Cobbs [Allen] and
made a comment that, you know, the family ultimately control,
you know, everything; and there's, you know, potential
question marks about how you would, you know, receive your
equity in the event that that was due.
"Q. Okay. And -- but the 'family controlling everything' is
something you, yourself, have noticed from -- just from the
offer letters, right?
"A. Yes -- yeah.
11
1190687
"....
"Q. And what did you tell Mr. McInnis in this communication
-- oh, correction -- what did you tell Mr. [Bruce] Denson, Jr.
about your communications with Mr. McInnis?
"A. I can't remember the specifics of the conversation. You
know, we -- I talked about the fact that he and I -- because I
wanted to be transparent through this whole process. You
know, I mentioned that we had spoken, that [McInnis] and I
had talked; and he had some reservations about, you know, the
equity arrangements within the company.
"Q. Okay. And what was Mr. Denson's response to that?
"A. Uhm -- he was -- he was, I suppose, frustrated that that
was -- that conversation had happened and reassured me that,
you know, that what they're purporting to deliver in terms of
equity is what it is. ...
"....
"[Counsel for CAH:] And I'm going to quote from the
complaint since you’ve seen it. It's Paragraph 6, the
supplemental complaint. 'McInnis while acting in the scope of
his employment with Epic told Mercer that CAH is a terrible
place to work and that CAH is controlled by and is operated for
the benefit of Grantland Rice, III, Bruce Denson, and Bruce
Denson, Jr. to the detriment of CAH's other shareholders and
employees. McInnis, also, told Mercer that if Mercer disagreed
with the Rices or the Densons on any material matter that
they would not -- that they would take his stock and not pay
him for it.'
12
1190687
"Do you recall saying any of that to Mr. Plumb or
Mr. Denson?
"A. I certainly didn't use language that was that explicit.
"....
"Q. ... I don't want you to speculate, but do you deny making
those statements?
"A. I didn’t -- I don't believe I made that statement.
"Q. Which one?
"A. About it being a terrible place to work.
"Q. What about the one about taking stock and not paying you
for it, do you recall anything like that?
"A. Not in such an extreme fashion.
"Q. What about -- and that about Cobbs Allen being controlled
by Grantland Rice, III and Bruce Denson and Bruce Denson,
Jr. to the detriment of other employees and shareholders at
Cobbs Allen & Hall, do you recall anything like that?
"A. I think that language is extreme. I think the tone from
[McInnis] was that they -- the family does very much hold the
cards and arguably could, you know, affect the arrangements
if they -- when it comes to equity, if they so felt it, you know,
if they wanted to."
(Emphasis added.)
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For his part, McInnis testified that Stillwell had called him to ask
him to speak to Mercer because
"Mr. Mercer was looking to go to work and had some -- at
Cobbs, Allen & Hall, and had some questions about Cobbs,
Allen & Hall.
"[Counsel for CAH:] Well, did Mr. Stillwell tell you that
Lockton wanted to keep Mr. Mercer?
"A. He did not.
"Q. Did you get that -- did you infer that Lockton wanted to
keep Mercer from the conversation [with Stillwell]?
"A. I did not."
McInnis testified that he had agreed to talk to Mercer as a favor to
Stillwell. McInnis testified that he did not tell anyone at EPIC he was
going to talk to Mercer and that, after the conversations with Mercer, he
did not tell anyone at EPIC he had talked to Mercer. It is undisputed that
EPIC was unaware of McInnis's contact with Mercer until CAH
commenced this action. McInnis also testified that, in their first
conversation, he simply told Mercer his understanding of how CAH's
employee stock plan worked. Specifically, McInnis told Mercer that, in
his opinion, the only way Mercer would realize his investment of stock in
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CAH Holdings was if CAH Holdings was sold or Mercer retired. After
their first conversation, McInnis sent Mercer a text message telling
Mercer that, under the RSTA, the repurchase of stock in retirement is
done over 10 years, "and that's a long time if you are retiring and trying
to get your money out." Mercer also sent McInnis an e-mail inquiry on
July 31, 2018, after their second conversation, concerning the same issue
of realizing his equity investment, and McInnis stated that CAH Holdings'
being purchased was the most likely way for Mercer to receive a return on
his stock investment but that McInnis was "not sure that will ever
happen." McInnis denied that, in any of his communications with Mercer,
he had disparaged CAH or had told Mercer "that the Rices and Densons
always got their way."
McInnis testified that, after his communications with Mercer, he
still was not sure whether Mercer understood how the RSTA worked.
Mercer confirmed that this was the case, which is why, he said, he talked
to some CAH employees about their understanding of the RSTA. He also
asked CAH for more information about the RSTA. CAH sent Mercer a
document prepared by a third-party securities attorney that summarized
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the terms of the RSTA. Mercer testified that that document answered his
questions about the RSTA. Mercer also testified that, in light of all the
information he had gathered about CAH, he did not consider anything
McInnis had told him to be false.
Bruce Denson, Jr. ("Denson"), the CAH executive who had been
communicating with Mercer about coming to work for CAH, submitted an
affidavit in which he related his version of what happened after Mercer
talked to McInnis.
"6. The evidence in this case shows during July 2018 that
Lockton solicited defendant Crawford McInnis to speak to
Mr. Mercer about Mr. McInnis's experience with CAH. The
evidence shows that Mr. Mercer spoke with Mr. McInnis twice,
once on July 30, 2018 and once on July 31,2018.
"7. On July 31, 2018, Mr. Mercer informed me that he was not
coming to work for CAH and was instead remaining at
Lockton. In response to my inquiry as to his reasons for such
decision, Mr. Mercer told me that he had spoken to
Mr. McInnis and that Mr. McInnis had told him that CAH was
a terrible place to work, that it was controlled by the Densons
and the Rices, and that if anyone disagreed with the Densons
or Rices, ... they would take their stock and not pay them for
it. I sent an email to CAH management informing them that
Mr. Mercer had talked to Mr. McInnis and that Mr. Mercer
was no longer taking the job at CAH. (See Exhibit B, hereto.)
Exhibit B hereto is an email that I sent describing my
conversation with Mr. Mercer wherein he told me of his
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conversation with McInnis and that he was not coming to work
for CAH and was instead remaining at Lockton. I prepared
this email in the course of my regularly conducted business
activity at the time that my conversation with Mr. Mercer
concluded. It is my regular practice to send such messages
regarding potential employees. It also is a statement that I
made in the immediate aftermath of my conversation with
Mr. Mercer.
"8. I asked Mr. Mercer for an appointment to meet with him
to explain the situation between Mr. McInnis and CAH. I flew
to Houston a few days later and met with Mr. Mercer, [and] he
reiterated the statements made to him by Mr. McInnis and
reaffirmed his intention to remain at Lockton."
(Emphasis added.) Denson's affidavit also included a couple of assertions
pertaining to statements Mercer had allegedly attributed to McInnis in
conversations between Mercer and Denson:
"9. The statements that Mr. Mercer told me that Mr. McInnis
had made about CAH are false. CAH has never taken
anyone’s stock because of a disagreement with the Densons
and Rices.
"10. My understanding of the non-disparagement provision of
the settlement agreement was that the parties were prohibited
from disparaging each other."
Following all of his deliberations and inquiries, Mercer decided to
stay at Lockton and not to take the job offered by CAH. In his deposition,
Mercer testified about some of his reasons for staying at Lockton.
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"[Counsel for EPIC:] Okay. Did that increased compensation
schedule play a role in your decision to stay at Lockton?
"A. Yes.
"....
"Q. ... All righty. Mr. Mercer, other than this increase in your
compensation or remuneration at Lockton, what other factors
played into your remaining at Lockton?
"A. The -- I think it was, you know, the vote of confidence from
the company and, then, also the fact that my -- you know, my
role would change slightly, but it wouldn't be materially
changed. And I think, you know, the decision to not join Cobbs
[Allen] was linked to, you know, a number of things and one of
which was, you know, those production targets that were
required.
"Q. The production targets that were required as set forth in
the offer letters, right?
"A. That's correct.
"Q. And those production targets included things like your
validation level of $795,000?
"A. That's correct.
"Q. Do you consider that to be something you were concerned
about?
"A. Yes.
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"Q. And what about the -- your ability to reach the floor in a
renewable book of $500,000 before you would be eligible to be
recommended for stock purchase?
"A. Yeah, I mean less concerned by that.
"Q. But the validation number was something you were
concerned about?
"A. Yes.
"Q. What other factors played into -- if any, played into your
decision to remain at Lockton?
"A. I think it was more linked to the -- the fact that I wasn't
really looking to leave ... Lockton in the first place and, you
know, hence making it a very difficult decision.
"Q. Okay. Now, Mr. --
"A.. I want to rephrase that. I was -- I was never unhappy at
Lockton. It wasn't that -- I want to sort of change my phrase
about saying I wasn't looking to leave Lockton. I was happy at
Lockton, but clearly the Cobbs Allen offer was very, very
appealing.
"Q. Okay. And you gave it consideration?
"A. Absolutely."
(Emphasis added.)
On November 28, 2018, CAH filed a supplemental complaint against
EPIC and McInnis in the Jefferson Circuit Court pursuant to that court's
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retention of jurisdiction over disputes related to the settlement
agreement. CAH alleged: (1) that McInnis and EPIC had breached
paragraph 11 of the settlement agreement because, it said, McInnis had
made disparaging comments about CAH to Mercer; (2) that McInnis had
tortiously interfered with CAH's prospective employment relationship
with Mercer by making disparaging comments about CAH to Mercer;
(3) that EPIC was directly liable for McInnis's tortious interference; and
(4) that EPIC was vicariously liable for McInnis's breach of contract and
tortious interference.
Following discovery, EPIC and McInnis filed summary-judgment
motions as to all the claims asserted against them. They argued (1) that
paragraph 11 was not actually a nondisparagement provision but, rather,
imposed only a "duty to instruct" parties to the settlement agreement and
their employees not to disparage other parties; (2) that McInnis's
comments about CAH to Mercer were justified because none of his
comments were false; and (3) that CAH had failed to present substantial
evidence demonstrating that EPIC was directly or vicariously liable for
McInnis's conduct.
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In its response to the summary-judgment motions, CAH contended
(1) that the only reasonable construction of paragraph 11 was that it was
a nondisparagement provision; (2) that CAH had submitted substantial
evidence demonstrating that McInnis was not justified in making his
comments about CAH to Mercer; and (3) that CAH had submitted
substantial evidence demonstrating that EPIC was directly and
vicariously liable for McInnis's conduct. In support of those arguments,
CAH submitted the previously quoted affidavit from Denson.
Subsequently, EPIC and McInnis filed a joint motion to strike paragraphs
6 through 10 of Denson's affidavit.
On January 16, 2020, the circuit court held a hearing concerning the
summary-judgment motions and the motion to strike. On January 30,
2020, the circuit court entered a summary judgment in favor of EPIC and
McInnis as to all claims. Specifically, the circuit court concluded (1) that
paragraph 11 of the settlement agreement was a "duty-to-instruct"
provision, not a nondisparagement provision, and that EPIC and McInnis
had fulfilled that duty; (2) that McInnis was justified in making his
comments about CAH to Mercer because his statements were true; and
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(3) that CAH had failed to submit substantial evidence demonstrating
EPIC's direct and vicarious liability for McInnis's conduct. In the same
order, the circuit court granted the motion to strike portions of Denson's
affidavit. The circuit court struck paragraphs 7, 8, and 9 of the affidavit
for containing hearsay, and it struck paragraphs 6 and 10 for containing
legal conclusions.
On February 28, 2020, CAH filed a postjudgment motion seeking to
vacate the summary judgment, which the circuit court denied on May 28,
2020. CAH filed a timely appeal.
II. Standard of Review
"This Court reviews a summary judgment de novo,
'apply[ing] the same standard of review as the trial court.'
Slay v. Keller Indus., Inc., 823 So. 2d 623, 624 (Ala. 2001). 'In
order to enter a summary judgment, the trial court must
determine: 1) that there is no genuine issue of material fact,
and 2) that the moving party is entitled to a judgment as a
matter of law.' Williams v. Ditto, 601 So. 2d 482, 484 (Ala.
1992). This Court must view the evidence in the light most
favorable to, and draw all reasonable inferences in favor of, the
nonmoving party. Nationwide Prop. & Cas. Ins. Co. v. DPF
Architects, P.C., 792 So. 2d 369, 372 (Ala. 2001)."
Gustin v. Vulcan Termite & Pest Control, Inc., [Ms. 1190255, Oct. 30,
2020] ___ So. 3d ___, ___ (Ala. 2020). "In reviewing a ruling on the
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admissibility of evidence, ... the standard is whether the trial court
exceeded its discretion in excluding the evidence." Woven Treasures, Inc.
v. Hudson Capital, L.L.C., 46 So. 3d 905, 911 (Ala. 2009).
III. Analysis
The central issues in this appeal concern whether the circuit court
erred in entering a summary judgment in favor of McInnis and EPIC on
CAH's tortious-interference and breach-of-contract claims. In order to
correctly analyze those issues, it is first necessary to evaluate the circuit
court's exclusion of several paragraphs from Denson's affidavit because
information in the affidavit directly bears on the evidence presented in
opposition to EPIC's and McInnis's summary-judgment motions. After we
address the rulings on the Denson affidavit, we will analyze the circuit
court's disposition of CAH's tortious-interference claim and its breach-of-
contract claim.
A. The Denson Affidavit
As we noted in the rendition of the facts, the circuit court struck
paragraphs 6 and 10 of Denson's affidavit for containing legal conclusions
and struck paragraphs 7, 8, and 9 for containing hearsay. CAH correctly
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notes in its appellate brief that the facts conveyed in paragraph 6 -- that
Mercer spoke to McInnis on July 30 and July 31, 2018 -- are not disputed
by the parties and were, in fact, corroborated by Mercer and McInnis in
their depositions. However, the information contained in paragraph 6 is
not based on Denson's personal knowledge, so there was no error by the
circuit court in striking that paragraph. See, e.g., Crawford v. Hall, 531
So. 2d 874, 875 (Ala. 1988) ("The contents of an affidavit filed in support
of, or in opposition to, a motion for summary judgment must be asserted
upon personal knowledge of the affiant, must set forth facts that would be
admissible in evidence, and must show affirmatively that the affiant is
competent to testify to the matters asserted. These requirements are
mandatory.").
CAH concedes that paragraph 10 of Denson's affidavit "is barred by
the parol evidence rule" if this Court determines that paragraph 11 of the
settlement agreement is not ambiguous. In subsection C of our analysis,
we conclude that paragraph 11 of the settlement agreement is not
ambiguous. Therefore, the circuit court did not err in striking
paragraph 10 of Denson's affidavit.
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The circuit court deemed paragraphs 7, 8, and 9 of Denson's affidavit
inadmissible because they were based on hearsay. The core of this ruling
-- and the primary dispute between the parties regarding Denson's
affidavit -- concerns the statements Denson asserted that McInnis had
made to Mercer about CAH in Mercer and McInnis's telephone
conversations on July 30 and July 31, 2018. Specifically, in paragraph 7
of his affidavit, Denson asserted:
"7. On July 31, 2018, Mr. Mercer informed me that he was not
coming to work for CAH and was instead remaining at
Lockton. In response to my inquiry as to his reasons for such
decision, Mr. Mercer told me that he had spoken to
Mr. McInnis and that Mr. McInnis had told him that CAH was
a terrible place to work, that it was controlled by the Densons
and the Rices, and that if anyone disagreed with the Densons
or Rices, ... they would take their stock and not pay them for
it."
CAH contends that this portion of Denson's affidavit is not hearsay
because "[CAH], of course, contends that [McInnis's] statements are false.
Hence, the statements are not being offered to prove the truth of the
matter asserted, only that the statements were made." CAH's brief,
pp. 37-38. CAH cites for support Bryant v. Moss, 295 Ala. 339, 342, 329
So. 2d 538, 541 (1976), in which this Court stated that "[a] statement
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made out of court is not hearsay if it is given in evidence for the purpose
merely of proving that the statement was made, provided that purpose be
otherwise relevant in the case at trial."
Rule 801(c), Ala. R. Evid., defines "hearsay" as "a statement, other
than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." It is true
that CAH plainly does not agree with the statements Denson asserts that
McInnis had made to Mercer about CAH. It is also true that CAH offered
Denson's affidavit as evidence of what McInnis had said about CAH.
Indeed, in the hearing on the summary-judgment motions, CAH's counsel
confirmed to the circuit court that "we are offering [Denson's affidavit] to
prove that McInnis made the statement." The problem for CAH, as EPIC
and McInnis observe, is that Denson's affidavit presents double hearsay,
that is, hearsay within hearsay, because it involves Mercer's relating to
Denson what McInnis allegedly related to Mercer. Rule 805, Ala. R. Evid.,
provides that "[h]earsay included within hearsay is not excluded under the
hearsay rule if each part of the combined statements conforms with an
exception to the hearsay rule provided in these rules." In other words,
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"[e]ach declarant's statement, considered individually, must satisfy the
hearsay concern by either qualifying under a hearsay exception or being,
by definition, nonhearsay." Advisory Committee's Notes to Rule 805, Ala.
R. Evid. Thus, even though McInnis's alleged statements to Mercer might
qualify as nonhearsay because they are not offered for the truth of the
matter asserted but, rather, to prove that McInnis made those statements
to Mercer, CAH still must satisfy hearsay concerns with respect to
Mercer's relating those statements to Denson. In that regard, it matters
whether Mercer was truthfully conveying to Denson what McInnis said,
and therefore that part of the statement is being offered for the truth of
the matter asserted. The Court of Civil Appeals in Jones v. Hamilton, 53
So. 3d 134, 141 (Ala. Civ. App. 2010), explained this exact point:
"Regarding the specific allegation that Hamilton told
Channon that Jones and the companies did not properly pay
taxes, we agree with Hamilton that the evidence Jones and the
companies offered is hearsay. Jones testified that Edwards
told him that Channon had told Edwards that Hamilton had
told Channon that Jones and the companies had not paid
taxes. Although a statement made by Hamilton to a witness
and repeated by that same witness would not be hearsay
because of the exclusion of statements made by a
party-opponent from the definition of hearsay, Rule 801(d)(2),
Ala. R. Evid., Jones's testimony was based on a statement
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made to him by Edwards that Channon had reported that
Hamilton had made the alleged statement regarding taxes to
Channon. Edwards's statement is an out-of-court statement
offered to prove the truth of matter asserted -- that Hamilton
made a statement regarding taxes to Channon -- and, thus, it
is hearsay. Rule 801(c), Ala. R. Evid. In fact, Edwards's
statement is based on an out-of-court statement by Channon,
and, thus, Edwards's statement is double hearsay. Thus, we
cannot conclude that Jones and the companies presented
substantial evidence indicating that Hamilton breached the
confidentiality agreement by making disparaging statements
about Jones or the companies."
(Emphasis added.) CAH attempts to distinguish Jones on the basis that
it involved "quadruple hearsay," CAH's brief, p. 38, but, regardless of the
number of times a statement is purportedly repeated before it reaches the
last declarant, the fact remains that in multiple-hearsay situations the
party attempting to submit the statement in evidence is offering the
statement for the truth of the matter asserted because whether the
statement was made hinges on the truthfulness of the one relaying the
statement to the last declarant. Cf. Warren v. Federal Nat'l Mortg. Ass'n,
932 F.3d 378, 387 (5th Cir. 2019) ("Contrary to Warren’s assertion,
Jefferson’s statement about what Bynum-Wilson allegedly said other
people allegedly said is, in fact, being offered for the truth of the matter
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asserted. This is hearsay within hearsay, so both levels must satisfy an
exception. ... To advance Warren’s claim against Fannie Mae, it matters
whether Bynum-Wilson was truthful as to what she heard the unnamed
employees say."); Miles v. Ramsey, 31 F. Supp. 2d 869, 876 n.5 (D. Colo.
1998) ("Courts recognize that in a suit for defamation, defamatory words
are normally 'words of independent legal significance' because they are
being introduced not for their truth, but only to prove that they were
uttered. ... If the close source had come forward in this instance, our
analysis would be done, the words would be admissible. However, in our
instance we again have the second level of analysis. It was the Enquirer
that printed what the close source, not Ramsey, had told South and
Wright. So here the article is being introduced to prove that the words
were uttered by Ramsey."). In short, Mercer's statements to Denson
allegedly relaying what McInnis had told Mercer about CAH qualify as
hearsay, and thus, in order to be admissible, those statements must come
within a hearsay exception.
CAH contends that Mercer's statements to Denson allegedly relaying
what McInnis had told Mercer about CAH are admissible under
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Rule 803(3), Ala. R. Evid., because they "explain [Mercer's] reasons, i.e.,
his state of mind, for not taking the [CAH] job." CAH's brief, p. 39. In
support of this idea that Mercer's alleged repetition of McInnis's
statements about CAH reflected Mercer's "state of mind," CAH points to
the assertion in Denson's affidavit that Mercer allegedly repeated
McInnis's statements "[i]n response to [Denson's] inquiry as to [Mercer's]
reasons" for not coming to work for CAH.
Rule 803(3) provides:
"The following are not excluded by the hearsay rule, even
though the declarant is available as a witness:
"....
"(3) Then Existing Mental, Emotional, or
Physical Condition. A statement of the declarant's
then existing state of mind, emotion, sensation, or
physical condition (such as intent, plan, motive,
design, mental feeling, pain, and bodily health), but
not including a statement of memory or belief to
prove the fact remembered or believed unless it
relates to the execution, revocation, identification,
or terms of declarant's will."
CAH argues that Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d
1076 (Ala. 2007), illustrates that Mercer's statements are admissible
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under the "state-of-mind" exception of Rule 803(3). In Davis, a widow,
Mary Davis ("Davis"), asserted, among other claims, claims of fraud by
forgery and conversion against her two stepsons and Sterne, Agee &
Leach, Inc. ("Sterne Agee"), the servicer of an individual retirement
account ("IRA") belonging to Davis's late husband, Robert Davis, Sr.
("Mr. Davis"). Davis alleged that the defendants had conspired to wrongly
deprive her of the disbursement of the proceeds from the IRA. One issue
in Davis concerned whether an affidavit from Sterne Agee financial
adviser Linda Daniel was admissible under Rule 803(3). In the affidavit,
Daniel stated that she had received a change-of-beneficiary form for the
IRA from Mr. Davis in December 2001. She further related that she then
had called Mr. Davis and had " 'asked him about the December 2001
beneficiary change, to verify that he wanted his sons to be his
beneficiaries. [Mr. Davis] confirmed that he did in fact want his sons to be
the beneficiaries and had sent the form to me to effectuate the change.' "
Davis, 965 So. 2d at 1081. Davis argued that Daniel's affidavit testimony
about what Mr. Davis had allegedly told her was inadmissible hearsay.
This Court concluded that the affidavit was admissible under Rule 803(3)
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"because even though Mr. Davis made the statement to Daniel after the
[change-of-beneficiary] form had been delivered to Sterne Agee, the
statement is not about what Mr. Davis remembered, but a statement of
his then existing intent for his sons to be the beneficiaries of his IRA." Id.
at 1089. CAH argues that, similar to the challenged statements at issue
in Davis, Mercer's statements to Denson are not about what Mercer
remembered McInnis saying but about "explaining [Mercer's] actual
reasons for not taking the job."2 CAH's reply brief, p. 19.
The trouble with this contention is that, even if we assume that
Mercer's statement is being offered solely to explain Mercer's reasons for
declining CAH's job offer -- a claim contradicted by CAH's position in the
2CAH also cites and discusses United States Fidelity & Guaranty Co.
v. Millonas, 206 Ala. 147, 153, 89 So. 732, 737 (1921), in support of its
argument that Mercer's recitation of McInnis's alleged statements in
paragraph 7 of Denson's affidavit are admissible. EPIC and McInnis, as
well as an amicus curiae supporting them, expend several pages seeking
to undermine Millonas as a vestige of a res gestae exception to hearsay
that, they say, was not included in the Alabama Rules of Evidence.
However, we see no need to settle the dispute about the continued
viability of the pertinent holding in Millonas given that CAH ultimately
relies on Rule 803(3), Ala. R. Evid., for its insistence that paragraph 7 is
admissible.
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summary-judgment hearing that it was being offered as evidence of what
McInnis actually said to Mercer -- the statement still does not reflect
Mercer's intent to do something. Instead, the statement allegedly reflects
the reasons behind Mercer's decision to do something -- specifically, to
decline CAH's job offer. The hearsay exception in Rule 803(3) does not
apply to such statements. Rather, it concerns statements indicating a
present feeling or physical condition or "statements of mind expressed
before the commission of the act as to which the state of mind is relevant."
Advisory Committee's Notes to Rule 803, Paragraph (3) (emphasis added).
This exception "does not apply to the declarant's after-the-fact statements
made about his past state of mind. ... It similarly does not apply to the
'declarant's statements as to why he held the particular state of mind.' "
United States v. Cummings, 431 F. App'x 878, 882 (11th Cir. 2011)
(quoting United States v. Duran, 596 F.3d 1283, 1297 (11th Cir. 2010)).3
3Rule 803(3), Ala. R. Evid., "is identical to the corresponding federal
provision." Advisory Committee's Notes to Rule 803, Paragraph 3.
"Federal cases construing the Federal Rules of Evidence are considered
persuasive authority for Alabama state courts construing the Alabama
Rules of Evidence." Municipal Workers Comp. Fund, Inc. v. Morgan
Keegan & Co., 190 So. 3d 895, 909 n.3 (Ala. 2015).
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"The statement must be limited to a declaration showing the
declarant's state of mind and not the factual occurrence
engendering that state of mind. See United States v. Joe, 8
F.3d 1488, 1492 (10th Cir. 1993) (holding that a victim's
statement that she feared the defendant is admissible under
the state of mind exception, however, the reasons why the
victim feared the defendant was an inadmissible factual
occurrence). The declarant must not have had an opportunity
to reflect and possibly fabricate or misrepresent her thoughts.
See United States v. LeMaster, 54 F.3d 1224 (6th Cir. 1995).
A statement may be excluded when a declarant has time to
reflect because the statement may reflect the declarant's then
existing state of mind as to a past fact as opposed to a present
existing fact."
United States v. Lentz, 282 F. Supp. 2d 399, 411 (E.D. Va. 2002)
(emphasis added). See also United States v. Samaniego, 345 F.3d 1280,
1282 (11th Cir. 2003) (noting that " 'the state-of-mind exception does not
permit the witness to relate any of the declarant's statements as to why
he held the particular state of mind, or what he might have believed that
would have induced the state of mind' " (quoting United States v. Cohen,
631 F.2d 1223, 1225 (5th Cir. 1980))); Fomby v. Popwell, 695 So. 2d 628,
632 (Ala. Civ. App. 1996) (affirming a trial court's refusal to admit certain
witness statements under Rule 803(3), observing: "Baker could have
testified as to Fomby's statements that reflected Fomby's mental anguish.
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However, it appears that Baker was instead attempting to testify as to the
cause of Fomby's mental anguish.").
Mercer's statements purport to explain what caused Mercer to make
a decision that Mercer had already made before talking to Denson. The
statements did not reflect Mercer's "then existing state of mind."
Rule 803(3). Rather, they constituted "a statement of [Mercer's] memory"
that CAH is using "to prove the fact remembered," which is expressly not
permitted by Rule 803(3). Id. Therefore, we conclude that the circuit
court did not err in striking from Denson's affidavit the statements that
McInnis allegedly had told Mercer about CAH.4
4The parties argue about the admissibility of an e-mail mentioned by
Denson in paragraph 7 of his affidavit that Denson wrote on July 31,
2018. However, we see no need to discuss the e-mail for two reasons.
First, the e-mail does not shed any further light on what McInnis actually
said to Mercer. Denson only stated generally that "apparently Tim Kelly,
president of Lockton['s] Houston [location], had [McInnis] talk to our
prospective employee [Mercer] and tell him lots of terrible things about
[CAH]." Second, it does not appear that the circuit court excluded the e-
mail given that it quoted a portion of the e-mail in its January 30, 2020,
order as evidence that EPIC was unaware that McInnis had talked to
Mercer.
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Our conclusion with respect to paragraph 7 of Denson's affidavit
directly affects our assessment of the circuit court's also striking
paragraphs 8 and 9 of the affidavit based on hearsay. The substantive
portion of paragraph 8 concerns the same inadmissible statements:
"[Mercer] reiterated the statements made to him by Mr. McInnis and
reaffirmed his intention to remain at Lockton." Likewise, paragraph 9
consists of Denson's reaction to the inadmissible statements: "The
statements that Mr. Mercer told me that Mr. McInnis had made about
CAH are false. CAH has never taken anyone’s stock because of a
disagreement with the Densons and Rices." Because paragraphs 8 and 9
also concern the inadmissible statements contained in paragraph 7, we
conclude that the circuit court did not err in striking those paragraphs
from evidence.
B. CAH's Claim of Tortious Interference
CAH contends that McInnis tortiously interfered with CAH's
prospective employment relationship with Mercer and that EPIC is liable
for McInnis's conduct. First, we will examine CAH's tortious-interference
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claim with respect to McInnis, and then we will evaluate that claim with
respect to EPIC.
1. McInnis's Affirmative Defense of Justification
The circuit court concluded that McInnis's conduct was justified as
a matter of law and, therefore, that McInnis was not liable for tortious
interference. Portions of the Restatement (Second) of Torts (Am. Law
Inst. 1979) ("Restatement") addressing the justification defense are
integral to understanding the parties' arguments, and the circuit court's
ruling, concerning whether McInnis tortiously interfered with CAH's
prospective employment relationship with Mercer. Specifically, in Gross
v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986),
this Court adopted a balancing test of factors provided in Restatement
§ 767, as well as the comments to that section, for evaluating a
justification defense.
"We retain the principle that justification is an
affirmative defense to be pleaded and proved by the defendant.
Whether the defendant is justified in his interference is
generally a question to be resolved by the trier of fact. Polytec,
Inc. v. Utah Foam Products, Inc., 439 So. 2d 683 (Ala. 1983).
Whether a defendant's interference is justified depends upon
a balancing of the importance of the objective of the
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interference against the importance of the interest interfered
with, taking into account the surrounding circumstances.
Restatement (Second) of Torts § 767 (1979), and Comments.
The restatement utilizes the term 'improper' to describe
actionable conduct by a defendant. Non-justification is
synon[y]mous with 'improper'. If a defendant's interference is
unjustified under the circumstances of the case, it is improper.
The converse is also true. Section 767 of the Restatement lists,
and the Comments explain, several items that we consider to
be among the important factors to consider in determining
whether a defendant's interference is justified:
"(a) the nature of the actor's conduct,
"(b) the actor's motive,
"(c) the interests of the other with which the
actor's conduct interferes,
"(d) the interests sought to be advanced by
the actor,
"(e) the social interests in protecting the
freedom of action of the actor and the contractual
interests of the other,
"(f) the proximity or remoteness of the actor's
conduct to the interference, and
"(g) the relations between the parties.
"Restatement (Second) of Torts § 767 (1979)."
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Gross, 494 So. 2d at 597 n.3, overruled on other grounds by White Sands
Grp., L.L.C. v. PRS II, LLC, 32 So. 3d 5 (Ala. 2009) (emphasis added).
The circuit court did not evaluate McInnis's justification defense
under the factors stated in § 767. Instead, the circuit court applied the
test for justification provided in Restatement § 772, titled "Advice as
Proper or Improper Interference," and the circuit court concluded that
McInnis's conduct was justified as a matter of law based on that standard.
Restatement § 772 provides:
"One who intentionally causes a third person not to
perform a contract or not to enter into a prospective
contractual relation with another does not interfere improperly
with the other's contractual relation, by giving the third
person
"(a) truthful information, or
"(b) honest advice within the scope of a
request for the advice."
CAH contends that the circuit court's use of § 772 instead of the
factors stated in § 767 constitutes reversible error because this Court has
expressly adopted § 767 but has never adopted § 772. CAH further argues
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that the factors for testing justification set out in § 767 "all tended to show
the lack of justification for [McInnis's] conduct." CAH's brief, p. 47.
McInnis and EPIC defend the circuit court's reliance on § 772 by
observing that § 767 cmt. a states, in part:
"Section 768, following this Section, deals specifically
with the question of whether competition is a proper or
improper interference with contractual relations, either
existing or prospective. Sections 769-773 deal with other
special situations in which application of the factors
enumerated in this Section have produced more clearly
identifiable decisional patterns. The specific applications in
these Sections therefore supplant the generalization expressed
in this Section."
(Emphasis added); see also § 772 cmt. a ("This Section is a special
application of the general test for determining whether an interference
with an existing or prospective contractual relation is improper or not, as
stated in §§ 766- 766B and 767."). McInnis and EPIC further observe that
this Court in Gross adopted § 767 and its comments and that the Court
reaffirmed that adoption in White Sands Group, L.L.C. v. PRS II, LLC, 32
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So. 3d 5 (Ala. 2009). McInnis and EPIC therefore contend that, based on
Gross and White Sands, this Court already has implicitly adopted § 772.5
In White Sands, the Court reiterated that Restatement § 767 and its
comments govern a court's evaluation of the defense of justification. See
White Sands, 32 So. 3d at 12-14. The White Sands Court then discussed
the application of the factors set out in § 767 to the counterclaim
defendant's conduct in that case. In doing so, the Court observed that the
counterclaim defendant
"neither discusses nor cites any of the justification factors set
forth in Restatement § 767 and adopted in Gross. Instead, it
relies entirely on the so-called 'competitor's privilege defense,'
Restatement (Second) of Torts § 768 (1979), which this Court
adopted in Soap Co. v. Ecolab, Inc., 646 So. 2d [1366,] 1370
[(Ala. 1994)]."
White Sands, 32 So. 3d at 18. The Court then explained the relationship
between Restatement §§ 767 and 768 with respect to justification:
"[T]he justification factors are not so easily dismissed.
"....
5An amicus curiae brief filed by the Alabama Free and Fair
Enterprise Institute urges this Court to expressly adopt § 772.
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" ' "The rule stated in [Restatement § 768] is a special
application of the factors determining whether an interference
is improper or not, as stated in § 767." ' [Soap Co. v. Ecolab,
Inc.,] 646 So. 2d [1366,] 1369 [(Ala. 1994)] (quoting
Restatement § 768 cmt. b) .... In other words, the competitor's
privilege defense is merely a 'special application' of the
justification factors considered in determining whether the
defendant's conduct is not justified or improper. It directly
involves at least six of those seven factors, namely, (1) the
nature of the defendant's conduct, (2) the defendant's motive,
(3) the interests with which the defendant's conduct interferes,
(4) the interests sought to be advanced by the defendant,
(5) the respective social interests affected, and (6) the relations
between the parties."
Id. (emphasis altered).
The foregoing discussion in White Sands concerning the
Restatement and justification is relevant in this case because of the fact
that the White Sands Court declared that Restatement § 768 "is a special
application of the factors determining whether an interference is improper
or not, as stated in § 767." White Sands, 32 So. 3d at 18 (emphasis
omitted). According to the comments to § 767, § 772 represents another
special application of the general factors stated in § 767 for evaluating
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justification in a particular kind of factual scenario.6 Indeed, § 767 cmt. a
states that the sections that follow § 767 "supplant" it when a scenario
involving those specific applications is presented. The facts presented in
this case fit within the scenario posited in § 772 because CAH alleges that
McInnis "intentionally cause[d] a third party[, Mercer,] ... not to enter into
a prospective contractual relation with another[, CAH,]" by giving Mercer
advice about going to work for CAH. Restatement § 772. Moreover, there
is nothing novel or illogical about the proposition in § 772 that giving
truthful information or honest advice does not constitute improper
interference. Therefore, it was proper for the circuit court to apply
Restatement § 772 in this case, and we expressly hold that § 772 should
be applied in appropriate factual scenarios that implicate the defense of
justification.
6The Pennsylvania Supreme Court, in discussing the fact that § 772
is a special application of § 767, observed: "This is not an extraordinary
proposition; this is the manner in which the law often progresses. As
general principles are tested in practice, more specific and accurate
paradigms arise." Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc.,
610 Pa. 371, 386, 20 A.3d 468, 477 (2011).
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Having determined that Restatement § 772 provides the appropriate
standard for evaluating McInnis's justification defense in this case, we
must now analyze whether the circuit court correctly concluded that
McInnis's conduct was justified as a matter of law, bearing in mind that
"[j]ustification is generally a jury question." White Sands, 32 So. 3d at 18.
The circuit court applied subsection (b) of § 772 to McInnis's conduct; that
is, the circuit court analyzed whether McInnis provided Mercer with
"honest advice within the scope of a request for the advice." The circuit
court noted that the comments to § 772 explain that under subsection (b)
three requirements must be met for honest advice to justify the
interference: "(1) that advice be requested, (2) that the advice given be
within the scope of the request and (3) that the advice be honest." Id.,
cmt. c.
CAH does not dispute that Mercer requested advice from McInnis
and that McInnis's advice fell within the scope of Mercer's request. CAH's
failure to contest those points is unsurprising. The undisputed evidence
shows that it was Mercer who contacted McInnis on each occasion: he
initiated both phone calls, and he wrote McInnis a follow-up question by
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e-mail after their second conversation. The evidence also confirms that
the primary topic Mercer asked McInnis about was CAH's stock or equity
plan, and McInnis's feedback addressed that topic.
CAH's objection concerns the circuit court's conclusion that
McInnis's statements to Mercer were true.7 It is at this point that the
relevance of our conclusion in subsection A of our analysis -- finding that
the circuit court did not err in striking the portion of paragraph 7 of
7The circuit court in its order and the parties in their briefs equate
"honest advice" in Restatement § 772 with telling the truth. The fact that
§ 772 contains categories of "truthful information" or "honest advice"
would seem to suggest that some distinction exists between the two --
perhaps it is only whether the information was solicited or unsolicited --
but we take the arguments as we find them for purposes of this case and
assume that "honest advice" concerns whether McInnis was truthful in
what he told Mercer. We note that the only comment to § 772 on honesty
states, in part:
"It is sufficient for the application of this rule that the actor
gave honest advice within the scope of the request made.
Whether the advice was based on reasonable grounds and
whether the actor exercised reasonable diligence in
ascertaining the facts are questions important only in
determining his good or bad faith. But no more than good faith
is required."
Restatement § 772 cmt. e.
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Denson's affidavit attributing certain statements to McInnis -- becomes
clear. The exclusion of the affidavit evidence means that the only specific
evidence concerning what McInnis told Mercer comes from Mercer's
deposition testimony. As we recounted in the rendition of the facts,
Mercer denied that McInnis had told him that CAH was a terrible place
to work. Mercer also disagreed with the allegation that McInnis had told
him that if he disagreed with the Rices and the Densons on any company
matter they would take his stock away and not pay him for it:
"[Counsel for CAH:] What about the one about taking stock
and not paying you for it, do you recall anything like that?
"A. Not in such an extreme fashion.
"Q. What about -- and that about Cobbs Allen being controlled
by Grantland Rice, III and Bruce Denson and Bruce Denson,
Jr. to the detriment of other employees and shareholders at
Cobbs Allen & Hall, do you recall anything like that?
"A. I think that language is extreme. I think the tone from
[McInnis] was that they -- the family does very much hold the
cards and arguably could, you know, affect the arrangements
if they -- when it comes to equity, if they so felt it, you know,
if they wanted to."
(Emphasis added.) Mercer also expressed the same idea in different
words, stating that McInnis had told him that "the family ultimately
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control, you know, everything; and there's, you know, potential question
marks about how you would, you know, receive your equity in the event
that that was due." In short, the foregoing quoted statements from
Mercer compose the admissible evidence for evaluating whether McInnis
gave Mercer honest advice.8
CAH focuses on McInnis's comment that the Densons and the Rices
"hold the cards" at CAH and that they could "affect the [equity]
arrangements ... if they wanted to." The circuit court concluded that "th[e]
statement is true. It is undisputed that the Rices and the Densons occupy
senior leadership positions at CAH and are major stockholders." Notably,
this conclusion does not directly address whether the Densons and the
8CAH repeatedly points out in its briefs that, in his deposition
testimony, Mercer described McInnis as being " 'frustrated' and 'aggrieved'
about how his [CAH] stock was lost in connection with the settlement of
the underlying dispute." CAH's brief, p. 29. CAH argues that such
motivations should weigh against finding that McInnis gave honest advice
to Mercer. However, the comments to Restatement § 772 state that if the
three requirements are met, "it is immaterial that the actor also profits
by the advice or that he dislikes the third person and takes pleasure in the
harm caused to him by the advice." Restatement § 772 cmt. c. Thus,
McInnis's motives are irrelevant to whether his advice to Mercer was
"honest."
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Rices can, in fact, affect the equity arrangements of minority stockholders
at their own discretion. CAH contends that "[t]he only reasonable
inference" from that comment "is that the Densons and the Rices could do
something underhanded, illegal, or otherwise improper with a minority
shareholders' shares" or that they "could do whatever they want to an
employee's stock for any reason 'they wanted to.' " CAH's brief, pp. 29, 31.
CAH contends that this is untrue because the stock arrangement is in the
form of a written contract, i.e., the RSTA; thus, CAH contends, the RSTA
and "not the whims of the Densons and the Rices," governs CAH's equity
arrangement. CAH notes that the RSTA states that it may be amended
only by a vote of holders of at least 75 percent of the shares in CAH
Holdings.
"(h) Amendment. This Agreement may not be changed orally,
and may be amended only by a written amendment which is
signed by the Company and the Shareholders then owning at
least seventy-five (75%) of the Shares then owned by all of the
Shareholders."
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CAH also observes that it is undisputed that "the Densons and the Rices
together own far less than 75 [percent] of [CAH Holdings] stock."9 CAH's
brief, p. 32. CAH therefore posits that McInnis's statement that the
Densons and the Rices can "affect the equity arrangement" at CAH "if
they wanted to" is "absolutely false." Id.
McInnis and EPIC counter that "the RSTA provides the Rices and
the Densons -- as the majority shareholders and executive management
of CAH -- with plenty of options to 'affect' the value of a shareholder's
equity even within the bounds of the RSTA without requiring any
shareholder action." McInnis and EPIC's brief, p. 47. McInnis and EPIC
offer two examples. First, they observe that the RSTA provides that when
an employee leaves CAH, the former employee's equity interest will be
paid out in 10 annual payments at fair market value. However, if an
employee-shareholder is terminated "for cause," the RSTA dictates that
"the purchase price of such Shares shall be the least of: (I) the [fair
9We note that, according to information in the record, aside from the
Densons and the Rices, there were over 40 other shareholders of CAH
Holdings stock at the time this action was commenced.
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market value]; (ii) the amount which the Shareholder paid for such Shares
[i.e., cost]; or (iii) the tangible book value[10] of such Shares." McInnis and
EPIC argue that the difference between the value of a former CAH
employee's stock can vary "dramatically" depending on whether the
employee was fired for cause or left for some other reason, and they assert
that "[w]hether an employee is fired for cause is in the sole discretion of
CAH management." McInnis and EPIC's brief, p. 48. They cite as
evidence McInnis's own experience when he was fired for cause from CAH,
because he received considerably less than the fair market value of his
CAH Holdings stock. See id., pp. 48-50.
McInnis and EPIC's second example of a way that the Rices and the
Densons could affect an employee's stock implicates paragraph 5(c) of the
RSTA, which states:
"(c)
Purchase Prices Adjustment for Producers.
Notwithstanding anything herein to the contrary, if the
Shareholder is a Producer and the Shareholder engages in any
10Black's Law Dictionary indicates that "book value" is synonymous
with "owners' equity," which "is calculated as the difference in value
between a business entity's assets and its liabilities." Black's Law
Dictionary 225, 1332 (11th ed. 2019).
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activity that is prohibited by Paragraph 12 or Paragraph 13
hereof prior to the purchase of all of the Shares of the
Shareholder, the purchase price for the [former producer’s]
Shares shall be adjusted in accordance with the following:
"(I) The purchase price shall be reduced by
the decrease (if any) in the value of such
Shareholder’s Book of Business between the last
day of the calendar month immediately preceding
the month which includes the Termination Date
and the second anniversary of such date.
"(ii) At any time after the Shareholder
engages in any activity prohibited by Paragraph 12
or Paragraph 13 hereof, [CAH Holdings] may
deliver written notice to such Shareholder and his
or her Permitted Transferees that describes the
prohibited activity engaged by such Shareholder
and reflects:
"(A) the number of Shares to be
purchased on the remaining Scheduled
Redemption Dates after the date of the
notice (the 'Remaining Shares'); and
"(B) the amount that the purchase
price of the Shares is to be reduced
pursuant to subparagraph 5(c)(I) above;
and
"(C) the per share adjustment to
be applied to the purchase price for
each of the Remaining Shares which
shall be determined by dividing the
amount of the purchase price reduction
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described in subparagraph 5(c)(ii)(B)
above by the number of Remaining
Shares described in subparagraph
5(c)(ii)(A) above (the 'Per Share Price
Reduction').
"(iii) The purchase price for each of the
Remaining Shares purchased on a Scheduled
Redemption Date after delivery of the notice
described in subparagraph 5(c)(ii) above shall be
reduced by the Per Share Price Reduction
described in subparagraph 5(c)(ii)(C) above. If the
application of the Per Share Reduction Price of the
Remaining Shares to be purchased on a Scheduled
Redemption Date results in a negative amount, the
Shareholder shall pay [CAH Holdings] cash in an
amount equal to the negative amount at the
closing."
Paragraphs 12 and 13 of the RSTA concern restrictive covenants for
shareholders. Thus, McInnis and EPIC state that paragraph 5(c) means
that if a shareholder violates a restrictive covenant, CAH is empowered
"to offset any losses in a producer's book of business from the
value of any stock the producer owns. It measures the
difference by comparing the value of the book of business the
month before the producer leaves CAH to the value of that
same book two years after the producer leaves."
McInnis and EPIC's brief, p. 51 n.14. McInnis and EPIC assert, citing
paragraph 5(c)(ii), that the Densons and the Rices "decide[] whether a
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shareholder violated the restrictive covenants for purposes of the
reduction in [paragraph] 5(c)." Id.
CAH responds that it is "absolutely false" that the Densons and the
Rices have sole discretion to determine whether a CAH employee is
terminated "for cause." It cites paragraph 4(c) of the RSTA, which defines
"Good Cause":
"(c) 'Good Cause' shall include, without limitation, (1) the
material nonperformance of duties assigned to the Employee
by [CAH Holdings] or a Subsidiary; (2) Employee’s dishonesty,
theft, fraud or embezzlement; (3) Employee’s violation of the
restrictive covenants in the employment agreement, if any,
between [CAH Holdings] and Employee that are comparable
to those included in Paragraph 12 and Paragraph 13 hereof;
(4) temporary or permanent suspension of Employee’s license
to sell insurance; (5) Employee’s being convicted of, the
commission of a felony or a crime involving moral turpitude;
(6) Employee’s habitual use of, or addition to, drugs or alcohol
which interferes or may reasonably be expected to interfere
with the performance of his duties hereunder; (7) Employee’s
gross neglect of duty, insubordination, failure to be available
for work when scheduled, willful inattention to the economic
or ethical welfare of [CAH Holdings] and its Subsidiaries, or
disloyalty
to
[CAH
Holdings]
and
its
Subsidiaries.
Notwithstanding anything herein to the contrary, if
termination of employment is predicated upon material
nonperformance of the Employee’s duties, Employee shall have
ten (10) days following written notice from [CAH Holdings]
specifying the cause of termination to cure such performance
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before termination is effective; there is no cure period for any
other Good Cause termination."
CAH argues that the foregoing definition provides an objective standard
for when an employee is being terminated "for cause." CAH also disputes
McInnis and EPIC's contention that whether an employee has violated a
restrictive covenant is solely determined by the Densons and the Rices.
CAH notes that paragraph 5(c)(ii) simply provides that CAH may provide
written notice to an employee when it believes such an employee has
violated a restrictive covenant, but it asserts that "[t]here is absolutely no
connection between the right to notify the employee of a violation and the
determination of whether a violation occurred." CAH's reply brief, p. 12.
CAH further observes that the RSTA contains an arbitration clause that
applies to "[a]ll controversies, claims, issues and other disputes arising out
of or relating to this Agreement or the breach thereof."
The foregoing arguments demonstrate that the parties have sharply
divergent interpretations of McInnis's statements to Mercer and of
whether those statements accurately reflect the equity plan in the RSTA.
However, when the evidence is viewed in the light most favorable to CAH,
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it becomes apparent that McInnis's statements to Mercer potentially were
misleading. The RSTA provides detailed guidelines as to how a CAH's
employee's ownership of stock in CAH Holdings is handled both during
and after the tenure of employment. Although, as Mercer's own experience
illustrates, ascertaining the meaning and application of the RSTA is not
a straightforward task, it is clear from the RSTA that the Densons and the
Rices do not "control ... everything" and that they cannot simply "affect
the [equity] arrangements" of CAH Holdings shareholders "if they wanted
to." Therefore, we conclude that questions of fact exist as to whether
McInnis gave honest advice to Mercer. Because whether McInnis gave
"honest advice" is a pivotal element of McInnis's justification defense
under Restatement § 772 to CAH's tortious-interference claim, the circuit
court erred in concluding that McInnis's conduct was justified as a matter
of law.
2. EPIC's Liability for McInnis's Potential Tortious Interference
" 'For [an employer] to become liable for [the] intentional
torts of its agent, the plaintiff[] must offer evidence that [1] the
agent's wrongful acts were in the line and scope of his
employment; or [2] that the acts were in furtherance of the
business of [the employer]; or [3] that [the employer]
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participated in, authorized, or ratified the wrongful acts.'
Joyner v. AAA Cooper Transportation, 477 So. 2d 364, 365
(Ala. 1985). The employer is vicariously liable for acts of its
employee that were done for the employer's benefit, i.e., acts
done in the line and scope of employment or ... done for the
furtherance of the employer's interest. The employer is
directly liable for its own conduct if it authorizes or
participates in the employee's acts or ratifies the employee's
conduct after it learns of the action."
Potts v. BE & K Constr. Co., 604 So. 2d 398, 400 (Ala. 1992).
CAH argues that EPIC is vicariously liable for McInnis's alleged
tortious interference because McInnis's communications with Mercer were
"incidental" to his usual duties as an EPIC employee. The circuit court
concluded that EPIC was not vicariously liable for McInnis's conduct
because McInnis's conduct did not fall within the scope of his employment.
CAH argues that EPIC is directly liable for McInnis's alleged tortious
interference because, CAH asserts, EPIC ratified McInnis's conduct by
failing to repudiate it. The circuit court concluded that EPIC did not
ratify McInnis's conduct because it was unaware of his communications
with Mercer until well after they occurred and it never approved of his
actions. We will address those two liability issues with respect to EPIC
in turn.
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a. Line and Scope of Employment
CAH argues that McInnis's communications with Mercer were
within the line and scope of his employment with EPIC because, CAH
asserts, those communications were "incidental" to McInnis's duties as a
branch manager of EPIC's Birmingham office. CAH notes that McInnis
admitted in his deposition that EPIC routinely fielded phone calls and
other inquiries from prospective EPIC employees and that such recruiting
is common in the commercial insurance industry. Based on that
admission, CAH asserts that "talking to a potential industry recruit about
a competitor is incidental to talking to EPIC recruits, especially if done by
a managing principal and branch manager." CAH's brief, p. 53. CAH
further observes that McInnis responded to an e-mail inquiry from Mercer
using his office e-mail address during regular business hours. CAH
argues that those facts further lend credence to the notion that McInnis
was acting in the line and scope of his employment when he
communicated with Mercer.
"An act is within an employee's scope of employment if the act
is done as part of the duties the employee was hired to perform
or if the act confers a benefit on his employer. See Jessup[ v.
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Shaddix], 275 Ala. [281,] 284, 154 So. 2d [39,] 41 [(1963)]. In
Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 401,
232 So. 2d 638, 642 (1970), this Court stated: ' "The rule ... for
determining whether certain conduct of an employee is within
the line and scope of his employment is substantially that if an
employee is engaged to perform a certain service, whatever he
does to that end, or in furtherance of the employment, is
deemed by law to be an act done within the scope of the
employment." ' (Quoting Nelson v. Johnson, 264 Ala. 422, 427,
88 So. 2d 358, 361 (1956)). This Court further stated in
Braggs, 285 Ala. at 401, 232 So. 2d at 643, that '[t]he conduct
of the employee, to come within the rule, must not be impelled
by motives that are wholly personal, or to gratify his own
feelings or resentment, but should be in promotion of the
business of his employment.' "
Hulbert v. State Farm Mut. Auto. Ins. Co., 723 So. 2d 22, 23 (Ala. 1998)
(emphasis added).
"An employee's tortious acts occur within the scope of his
employment if the acts are 'so closely connected with what the
servant is employed to do and so fairly and reasonably
incidental to it, that they may be regarded as methods, even
though quite improper ones, of carrying out the objectives of
the employment.' Prosser & Keeton, The Law of Torts 503
(5th ed. 1984). In Big B, Inc. v. Cottingham, 634 So. 2d 999,
1002 (Ala. 1993), this Court held that there was sufficient
evidence that a store manager who falsely imprisoned a
customer suspected of shoplifting was acting within the scope
of his employment because preventing shoplifting was closely
related to his employment as a store manager. In contrast,
where the store manager forced the customer to perform a
sexual act with him, this Court has held that the manager was
acting outside the scope of his employment. Id. at 1002; see
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also Hendley v. Springhill Mem'l Hosp., 575 So. 2d 547 (Ala.
1990) (holding that a hospital is not liable for the unauthorized
sexual touching by an agent)."
Ex parte Atmore Cmty. Hosp., 719 So. 2d 1190, 1194 (Ala. 1998)
(emphasis added).
The problem for CAH is that McInnis's talking to Mercer, a Lockton
employee, about Mercer's potentially going to work for CAH was in no way
part of the duties that McInnis was hired to perform for EPIC. The fact
that McInnis may frequently talk to prospective EPIC employees does not
make McInnis's talking to a prospective CAH employee "reasonably
incidental" to the work he performed for EPIC. Nothing in McInnis's
communications with Mercer furthered EPIC's business interests. In fact,
the undisputed evidence demonstrates that McInnis talked to Mercer as
a personal favor to Lockton producer John Stillwell, and that Mercer
contacted McInnis for the purpose of obtaining help in understanding
CAH's equity plan. In short, the communication on both sides was
impelled by personal motives that had nothing to do with McInnis's duties
at EPIC. Accordingly, the circuit court did not err in concluding that CAH
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had failed to present substantial evidence demonstrating that EPIC was
vicariously liable for McInnis's conduct.
b. Ratification
CAH contends that EPIC is directly liable for McInnis's conduct
because, CAH asserts, EPIC ratified that conduct after the fact by failing
to disclaim McInnis's conduct after EPIC learned about it. For support,
CAH points to testimony from Dan Crawford, EPIC's executive
vice president and general counsel, who testified during his deposition
that EPIC had not "made any determination that the conversation, the
communication between Mr. McInnis and Mr. Mercer violated any policy
of EPIC." CAH contends that, "[b]ecause EPIC has yet to disclaim
McInnis's acts, there is substantial evidence of ratification." CAH's brief,
p. 57.
"An employer is ... liable for the intentional torts of the
employee if the employer ratifies the employee's conduct.
Potts [v. BE & K Constr. Co.], 604 So. 2d [398] at 400 [(Ala.
1992)]. An employer ratifies conduct if: (1) the employer has
actual knowledge of the tortious conduct; (2) based on this
knowledge, the employer knew the conduct constituted a tort;
and (3) the employer failed to take adequate steps to remedy
the situation. Id. 'Adequate' means that the employer took
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reasonable and necessary steps to stop the tortious conduct.
Id. at 401."
Ex parte Atmore Cmty. Hosp., 719 So. 2d at 1195.
CAH's ratification theory relies on the notion that "[a]n employer's
failure to stop the tortious conduct after it learns of the conduct will
support an inference that the employer tolerated the conduct." Potts, 604
So. 2d at 400. But such an inference necessarily can arise only when there
is evidence that an employer possesses knowledge of an employee's
ongoing conduct and the employer fails to do anything about that conduct.
An employer obviously cannot stop, curtail, or disclaim employee conduct
about which it has no knowledge. See, e.g., East Alabama Behavioral
Med., P.C. v. Chancey, 883 So. 2d 162, 170 (Ala. 2003) (noting that
"[a]cquiescence or ratification requires full knowledge or means of
knowledge of all material facts"); Shoney's, Inc. v. Barnett, 773 So. 2d
1015, 1028 (Ala. Civ. App. 1999) ("Nothing in the evidence presented at
trial indicates that any of Hunter's superiors knew she was concealing
material facts about Barnett's alleged resignation from them. Without
actual knowledge of Hunter's deception, Shoney's could not have ratified
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her conduct."). It is undisputed that no one at EPIC besides McInnis
knew anything about McInnis's brief communications with Mercer until
CAH filed its supplemental complaint -- four months after those
communications occurred. Thus, EPIC could not have stopped McInnis's
conduct because it had no knowledge of the communications at the time
they were taking place. Accordingly, there is no evidence that EPIC
ratified McInnis's conduct, and, thus, the circuit court did not err in
entering a summary judgment for EPIC on CAH's claim that EPIC was
directly liable for McInnis's alleged tortious interference.
C. CAH's Claim of Breach of Contract
CAH's breach-of-contract claim is based on paragraph 11 of the
settlement agreement, specifically the first sentence of paragraph 11,
which provides: "The Parties will take reasonable efforts to instruct their
officers, directors, shareholders, accountants, financial advisors, and
attorneys not to disparage any other party." CAH contends that "the only
reasonable, logical construction" of paragraph 11 "is that the parties were
prohibited from disparaging one another." CAH's brief, p. 59. CAH posits:
"Seriously, what good would instructing your privities not to disparage the
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other parties do if you could disparage the other party yourself?" Id. CAH
argues that McInnis breached that provision of the settlement agreement
in his conversations with Mercer and that EPIC breached it through
McInnis's actions.
In contrast, McInnis and EPIC argue -- and the circuit court agreed
-- that by its plain language paragraph 11 is a "duty-to-instruct" provision
that required the parties to instruct their privities not to disparage the
other parties to the settlement agreement and that the evidence
unequivocally demonstrates that McInnis and EPIC fulfilled that duty.
The circuit court noted that there is no need to look beyond the plain
language of a contract if its meaning is not ambiguous. See, e.g., The
Dunes of GP, L.L.C. v. Bradford, 966 So. 2d 924, 928 (Ala. 2007) (noting
that " '[t]he intention of the parties controls in construing a written
contract and the intention of the parties is to be derived from the contract
itself, where the language is plain and unambiguous' " (quoting Loerch v.
National Bank of Commerce of Birmingham, 624 So. 2d 552, 553 (Ala.
1993))). Because paragraph 11 plainly states that "[t]he Parties will take
reasonable efforts to instruct" their privities "not to disparage any other
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party," the circuit court concluded that paragraph 11 contained only a
duty to instruct privities not to disparage parties to the settlement
agreement.
We agree with the circuit court. By its plain language, paragraph 11
does not include a duty not to disparage other parties; it simply requires
parties to instruct their privities not to disparage other parties. CAH was
a party to the settlement agreement, and it participated in drafting the
agreement. Nothing prevented the parties from expressly stating in the
settlement agreement that the parties had a duty not to disparage other
parties in addition to having a duty to instruct their privities not to
disparage parties, yet they did not include such a provision.
CAH argues that even if a duty not to disparage is not evident in the
plain language of paragraph 11, it should be implied through the covenant
of good faith and fair dealing. But as McInnis and EPIC observe, the
implied covenant of good faith and fair dealing cannot be used to alter the
plain meaning of a contract. See, e.g., Shoney's LLC v. MAC E., LLC, 27
So. 3d 1216, 1223 (Ala. 2009) ("Where the parties to a contract use
language that is inconsistent with a commercial-reasonableness standard,
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the terms of such contract will not be altered by an implied covenant of
good faith. ... ' "[W]here the language is unambiguous, and but one
reasonable construction of the contract is possible, it must be expounded
as made, as the courts are not at liberty to make new contracts for the
parties." ' Heinrich v. Globe Indem. Co., 276 Ala. 518, 523, 164 So. 2d 709,
713-14 (1964) (quoting New York Life Ins. Co. v. Torrance, 224 Ala. 614,
617, 141 So. 547, 550 (1932)." (emphasis omitted)). We will not imply a
duty not to disparage when none is apparent from plain language of the
agreement drafted by both parties.
Because a duty not to disparage parties is not included in the
settlement agreement, McInnis and EPIC may be held liable only for a
failure to comply with their duty to instruct their privities not to
disparage other parties. Tellingly, CAH does not even present an
argument contending that either McInnis or EPIC failed to fulfill the
"duty to instruct" mandated in paragraph 11. This is, no doubt, because
all the submitted evidence indicated that EPIC instructed McInnis and all
of its senior management not to disparage CAH, and McInnis likewise
instructed the employees he managed not to disparage CAH. Because
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both McInnis and EPIC fulfilled the only duty stated in paragraph 11,
CAH's breach-of-contract claim against them necessarily failed.
Accordingly, the circuit court did not err in granting summary judgment
as to CAH's breach-of-contract claim.
IV. Conclusion
We affirm the circuit court's rulings concerning the admissibility of
Denson's affidavit. We also agree with the circuit court that CAH's
breach-of-contract claim against McInnis and EPIC fails because no duty
not to disparage parties exists in paragraph 11 of the settlement
agreement. EPIC is not vicariously liable for McInnis's alleged tortious
interference because McInnis's conduct was not within the line and scope
of his employment with EPIC. EPIC also is not directly liable for
McInnis's alleged tortious interference because it did not ratify McInnis's
conduct as it did not know about the conduct until well after it occurred.
However, we disagree with the circuit court's conclusion that McInnis
demonstrated that he was justified as a matter of law in interfering with
CAH's prospective employment relationship with Mercer. Based upon the
admissible evidence, an issue of fact exists as to whether McInnis gave
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Mercer honest advice. Therefore, the judgment of the circuit court is
affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Parker, C.J., and Bolin, Wise, Sellers, Stewart, and Mitchell, JJ.,
concur.
Bryan, J., concurs in part and dissents in part.
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BRYAN, Justice (concurring in part and dissenting in part).
I would affirm the judgment in its entirety. I dissent as to only
Section III.B.1 of the main opinion -- the portion of the analysis regarding
the plaintiffs' tortious-interference claim against Crawford McInnis. I
agree with the Jefferson Circuit Court that there is no genuine issue of
material fact regarding the truth of McInnis's statements that "the family
... arguably could ... affect" equity arrangements or that there were
"potential question marks about how [one] would ... receive [one's] equity
...." (Emphasis added.) Therefore, I respectfully dissent from the portion
of the main opinion reversing the summary judgment in favor of McInnis
regarding the tortious-interference claim.
68 | March 26, 2021 |
0f50df82-3e86-4775-abf5-6874e50c93c7 | Phillips v. Giles | 252 So. 2d 624 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 624 (1971)
Billy Jack PHILLIPS
v.
J. W. GILES, as Admr., etc.
5 Div. 879.
Supreme Court of Alabama.
September 9, 1971.
*625 Russell, Raymon & Russell, Tuskegee, for appellant.
Herbert J. Lewis, Jr., Montgomery, for appellee.
COLEMAN, Justice.
A patient, who is confined in the Veterans Administration Hospital at Tuskegee, appeals from a judgment denying his release from the hospital after a hearing at which he was present and represented by his counsel. The patient will sometimes be referred to as petitioner.
The hearing was initiated by his petition for habeas corpus addressed to the Judge of the Circuit Court of Macon County. The petitioner alleges that he is illegally restrained of his liberty and confined in the hospital under a commitment order issued by the Judge of the Probate Court of Montgomery County; that said order is void because petitioner was given no notice of a commitment hearing and, he was therefore, denied the right to appear and defend at said hearing as provided by Title *626 45, § 210, Code 1940,[1] and denied due process of law; that said order of commitment is void because, as petitioner is informed and believes and as he alleges upon such information and belief, no hearing was had as provided by Title 45, § 210, Code 1940; and that said order is void because petitioner was of sound mind at the time said order was issued.
The respondent to the petition is the Director of the hospital. He produced the body of petitioner before the Circuit Judge and made return under oath to the writ of habeas corpus. In his return to the writ, respondent answers that he holds petitioner by an order of the Probate Court, a copy of the order being attached to the answer; that petitioner has been examined and observed by the hospital staff and, in opinion of the staff and respondent, petitioner's mental condition requires his further confinement for care and treatment and his own welfare and the welfare of others; that respondent cannot conscientiously recommend petitioner's release under Title 45, §§ 218 or 219.[2]
Sections 218 and 219 provide, in substance that when a patient has been restored to a normal or comparatively safe and good mental condition for a period of time sufficiently long to warrant the opinion of the superintendent of the hospital that the patient ought to be returned to his home or set at large, the superintendent shall take steps to bring about the patient's release.
Petitioner filed a traverse to the return and denied the allegations thereof.
The chief clerk of the Probate Court testified that he signed the order committing petitioner to the hospital (Title 13, § 300), and that no formal commitment hearing was held.[3]
In pertinent part, the commitment order recites:
The affidavits made by W. J. Williams and J. L. Berry, respectively, recite that they did observe petitioner and "... in my opinion and knowledge of the said Billy Jack Phillips I certify that he is insane and in my judgment for his own good and for the good of the public should be committed to the hospital for the insane."
The affidavit of Dr. Kocour recites that he has made a careful examination of petitioner and "... from said examination find that said Billy Jack Phillips is insane and for his own good and for the good of the public he should be committed as early as practical to Hospital for the insane."
The chief clerk further testified that, to his knowledge, no notice was given to petitioner that a commitment hearing was going to be held, that no notice was "... given out of the Probate Court," that petitioner was not present at the commitment hearing, that no formal commitment hearing was held, and, if such a hearing were held, his records would show it.
Petitioner testified that he was never carried before the Probate Judge for a commitment hearing, that he did not have notice that a commitment hearing was going to be held for him, that his first knowledge of a hearing was when he arrived at the hospital, that he has been continuously confined in maximum security with an attendant twenty-four hours a day, that he is a fully competent person, that he is being held "... for security reasons because they know that I want to escape ..." and that at the time he was carried to the hospital he was "... in perfect healthmentally, physically, and morally...." He further testified that, at the time of his commitment, he was in jail and the charges against him were: "Sec. 2312 Criminal Code of Alabama, which is commonly known as the Dyer Act, dealing with transportation in interstate commerce of a stolen vehicle"; and that he knows the charges have been dropped, although he has never seen any papers to that effect and has never been in court.
J. L. Berry testified that he was a deputy sheriff; that he remembers when petitioner was in jail; that the witness knows Dr. Kocour; that, in the opinion of the witness, petitioner needed to be committed at the time of his commitment; that the opinion of the witness is based on the fact that petitioner was constantly wanting to see the doctor and quoting "all these case numbers and habeas corpuses and everything like that" which the witness is not familiar with and does not understand.
The closing recital in the record at the conclusion of the hearing is as follows:
The order of the court denying petitioner's release contains the following recitals:
In his petition, petitioner did not allege that he was then of sound mind. In respondent's return, however, respondent alleges that petitioner is so mentally deficient as to require his further confinement for care and treatment and for the welfare of himself and others. Petitioner filed a traverse of the return and denies the allegations thereof. An issue of fact was thus presented as to petitioner's sanity at the time of trial, but that issue was not tried. Petitioner did not choose to try the issue of his sanity at the time of the hearing. The statement of his counsel at the close of the hearing makes this clear. We are of opinion that the judge did not err in not trying an issue which petitioner did not choose to have tried and determined.
As we understand his argument in brief, petitioner says he is entitled to be released from the hospital because the order under which he was committed and is being confined is void. He says the order is void because it was made without prior notice to him and without giving him a hearing prior to commitment and an opportunity to defend at a prior hearing.
Petitioner cites, among other cases, Barry v. Hall, 68 App.D.C. 350, 98 F.2d 222, in which the United States District Court for the District of Columbia ordered the release of a patient who had been committed as insane to St. Elizabeth's Hospital. The court said that appellant was held "... under a statute which makes no provision for a hearing and opportunity for defense ... The statute ... is ... not even intended as a lunacy commitment statute. It assumes insanity already determined ...." The appellant had been transferred from a United States Marine Hospital to St. Elizabeth's on authority of a letter from the Secretary of the Treasury.
In Barry, the District Court observed that certain authorities held that a commitment without prior hearing is not unconstitutional as denying due process, if a later hearing is afforded. The court said:
The following proposition stated and relied on by respondent we hold to be correct law:
Title 45, § 210, Code 1940, makes no provision for, and due process does not require, prior notice to the person being committed because he has the immediate right to test the legality of his detention in a habeas corpus proceeding under Title 15, § 3, which recites:
In addition to the authorities cited above in the quotation from Barry, the proposition is, as it seems to us, supported also by the following: Moses v. Tarwater, 257 Ala. 361, 58 So. 2d 757; Doughty v. Tarwater, 261 Ala. 263, 73 So. 2d 540; In re Coates, 9 N.Y.2d 242, 213 N.Y.S.2d 74, 173 N.E.2d 797; Hiatt v. Soucek, 240 Iowa 300, 36 N.W.2d 432; In re Bryant, 214 La. 573, 38 So. 2d 245.
Petitioner has had the opportunity to have tried the issue of his present sanity at the hearing in the instant case but chose not to try that issue. Petitioner has the right today to file another petition for habeas corpus under Title 15, § 3, and to have tried, by jury if he demand it, the issue of his sanity at the time of hearing. At such a hearing the burden of proving that petitioner is so defective mentally as to require his confinement will be on the respondent because the law presumes petitioner to be sane, and no court has yet, after notice and hearing, adjudged that petitioner is mentally unsound or insane.[4] If a court of competent jurisdiction, after due notice and hearing, shall adjudge him insane, then he may again proceed under Title 15, § 3, to have his sanity determined, but after he has once been lawfully adjudged to be insane, the burden of proof then will be on him to prove his restoration to sanity. Jones v. Jones, 275 Ala. 678, 158 So. 2d 481.
What the Supreme Judicial Court of Massachusetts said in a similar case seems appropriate here:
Because petitioner has the right at any time to proceed to a trial of his present sanity under Title 15, § 3, as aforesaid, we hold that he is not confined without due process of law, and that the court did not err in refusing to order his discharge from the hospital.
Affirmed.
SIMPSON, MERRILL, HARWOOD and McCALL, JJ., concur.
LAWSON, Justice (concurring specially.
I do not concur in the holding of the court relative to the constitutional questions to which it has written.
It is obvious that the appellant sought to avoid a determination by the court as to his sanity at the time of the hearing and although that question may not have been technically within the pleadings in the case, yet it affirmatively appears from the judgment that the trial court in concluding that appellant should not be discharged gave consideration to the return of the Director of the Veterans Hospital at Tuskegee to the effect that appellant's mental condition was such that he should not be discharged. In view of that posture of the case, I concur in the affirmance of the judgment of the trial court on the authority of Moses v. Tarwater, 257 Ala. 361, 58 So. 2d 757.
HEFLIN, C. J., and BLOODWORTH and MADDOX, JJ., concur in the foregoing special concurrence of LAWSON, J.
BLOODWORTH, Justice (concurring specially):
I concur in the special concurrence of Mr. Justice Lawson. I agree that we need not reach the constitutional issue of "due process" because the trial judge considered that "appellant's mental condition was such that he should not be discharged," following Moses v. Tarwater, 257 Ala. 361, 58 So. 2d 757 (1952).
Notwithstanding, I wish to add these additional observations. I would most respectfully disagree with the court's holding (in Mr. Justice Coleman's opinion) that the right to file a writ of habeas corpus satisfies fundamental "due process" in the case of one committed to an Alabama mental institution. (Title 15, § 3, Code of Alabama 1940.) On that issue, I agree with that which Mr. Justice Brown wrote in his dissent in Moses v. Tarwater, supra:
Is it not ironic, to say the least, that this court holds that a person's liberty may be taken at an ex parte hearing without notice to him or an opportunity to be present, yet that person's property may not be taken from him without an inquisition into his sanity at a hearing held for that purpose, representation by counsel, notice to him, an opportunity to be present (in most instances), and with a jury empanelled to try the issue? (See Title 21, §§ 9-14, Code of Alabama 1940).
With respect to "due process" under the inquisition statutes, supra, Mr. Justice Thomas spoke for this court in Fowler v. Fowler, 219 Ala. 457, 122 So. 444 (1929):
If I felt we needed to reach the issue, I would reverse this judgment being convinced that petitioner was denied "due process" of law in being denied a hearing before commitment.
MADDOX, J., concurs in the foregoing special concurrence of BLOODWORTH, J.
[1] § 210 contains provisions which provide for commitment to hospitals operated by the United States Veterans Administration, and, contains the following sentence, to-wit:
"The right of such person to appear and defend shall not be denied."
[2] Respondent's return contains the following statement:
"... Billy Jack Phillips has been examined and observed by the staff of the Veterans Administration Hospital, and in my opinion and in the opinion of the staff of said hospital he is sufficiently deficient or defective mentally to require that for his own and others' welfare, he be retained in said hospital for restraint, care, and treatment. And that I, as Director of the Veterans Administration Hospital, Tuskegee, Alabama, have been and am still conscientiously unable to recommend his release under the provisions of Code of Alabama, Title 45, Section 218 or 219, because he has not been restored to a normal or comparatively safe and good mental condition warranting the opinion on my part as Director of said hospital that he ought to be returned to his home or set at large again...."
[3] The witness testified:
"Q Now, was there any formal commitment hearing held?
"A No, sir. It isn't required by law.
"Q Now
"MR. RUSSELL: I ask that that last part of his answer be stricken out as not being responsive.
"THE COURT: Well, strike it out.
"Q Mr. Thompson, the commitment order shows that W. J. Williams, J. L. Berry, and Dr. E. J. Kocour were examined under oath, were they actually examined by Judge Hooper?
"A No, sir.
"Q Did they ever appear in a hearing before Judge Hooper?
"A Not to my knowledge.
"Q Did they appear in Court with you?
"A Not to my knowledge.
"Q These affidavits filed by these three parties, those are the affidavits used when your Court issued the commitment order?
"A Yes, sir.
"Q Was any other evidence used in connection with those affidavits?
"A No, sir."
[4] "The law presumes every person sane and casts the burden of establishing insanity on the one asserting it." Equitable Life Assur. Soc. v. Welch, 239 Ala. 453, 195 So. 554. | September 9, 1971 |
3ad3c1d1-615c-494e-9470-a344702ee148 | Harrell v. Alabama Farm Bureau Mut. Cas. Ins. Co. | 251 So. 2d 220 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 220 (1971)
William H. HARRELL, a Minor, and Willie Harrell, etc.
v.
ALABAMA FARM BUREAU MUTUAL CASUALTY INSURANCE COMPANY, a Corporation.
4 Div. 406.
Supreme Court of Alabama.
July 22, 1971.
*221 Tipler, Fuller & Melton and W. Scears Barnes, Jr., Andalusia, for appellants.
Powell & Sikes, Andalusia, for appellee.
HARWOOD, Justice.
On 30 November 1968, the Alabama Farm Bureau Mutual Casualty Insurance Company, hereinafter referred to as the *222 insurer, issued an automobile liability insurance policy to Colonia Berry. On 3 August 1969, Frederick Berry, the son of Colonia Berry, while driving Colonia's automobile, was involved in a collision with another vehicle. As a result of this collision two suits were filed against Frederick Berry, one by William Harrell, a minor, and the second by Willie Harrell, the father of William Harrell. A demand was made upon the insurer to defend the suits, and to pay any damages assessed within the limits of the policy. The insurer refused the demand on the ground that the policy had been cancelled prior to the collision. The insurer thereafter filed a declaratory action in the Circuit Court of Covington County, Alabama, in Equity, to have a declaration made that the policy had been cancelled prior to the collision and that it was under no duty to defend the two suits or to pay any damages assessed. The two Harrells, plaintiffs in the suits against Frederick Berry, and Colonia Berry, were named as respondents.
After a hearing the Chancellor entered a decree finding that the policy had been cancelled and adjudged and decreed that the insurer was under no obligation to defend the suits or to pay any judgment arising out of the suits.
Thereafter William H. Harrell, and Willie Harrell perfected this appeal from said decree.
The evidence introduced at the hearing below tends to show that on 3 November 1968, Colonia Berry made application for insurance coverage to Jim Martin, agent for the insurer in Andalusia, Alabama. On the application Colonia Berry was listed as the 100 per cent driver of the automobile to be insured. Her 16 year old daughter, Yvonne Berry, was listed as a member of her family, but as a non-driver. Frederick Berry was not listed on the application. Colonia Berry's address was shown as Route 1, Box 16, Butler, Alabama.
The policy was issued on 12 December 1968. It provided liability insurance of $10,000.00 for damages to one person, and $20,000.00 if more than one person was injured.
Premium for the liability coverage was $16.20, this being a special rate allowed Colonia Berry because she was a school teacher. Other coverages were included in the policy and the total premiums for all coverages were $30.70.
The policy was for six months and in effect for the period 30 November 1968 to 30 May 1969, with a ten day grace period after its expiration during which the policy could be reinstated upon payment of the required premium.
On 2 June 1969, Colonia Berry paid a renewal premium of $16.20 on her liability coverage to the Andalusia agent and a receipt was issued to her for this amount.
One week later, on 9 June 1969, Colonia Berry made a supplemental application for insurance. On this application her son Frederick Berry aged 19, was listed as a 50 per cent driver of the automobile, as was Colonia Berry. Her daughter Yvonne Berry was listed as a non-driver. Again Colonia Berry's address was shown as Route 1, Box 16, Butler, Alabama. This supplemental application was forwarded to the home office of the insurer for reclassification and re-rating.
On 12 June 1969, a supplemental policy effective 9 June 1969, was issued by the insurer to Colonia Berry. According to the testimony of Bill Oswalt, Vice President of the insurer, in charge of underwriting, a bill for $62.42 for an additional premium was inclosed in the envelope with the supplemental policy and mailed to Colonia Berry. The higher premium was for the extension of the coverage to Frederick Berry as a 50 per cent driver of the insured automobile. A copy of the supplemental policy was also mailed to Jim Martin, insurer's agent in Andalusia.
The supplemental policy was the same as the original policy except that the six months premium was $81.90 rather than *223 the lower premium charge for the original policy. The expiration date of the supplemental policy was 30 November 1969.
The $16.20 paid by Colonia Berry on 2 June 1969 would have kept the supplemental policy in force at its increased premiums through 13 July 1969.
On 18 July 1969, Bill Oswalt, as Vice President of the insurer, and with authority to cancel policies, wrote a letter to "Colonia Berry, Rt. 1, Box 16, Butler, Alabama" with the salutation, "Dear Mr. Berry." The letter stated that because the full amount of the premium to keep the policy in effect had not been received, the policy was cancelled effective 12:01 A. M., 28 July 1969. The letter further stated that the policy could be reinstated effective as of the date a premium was received either in the home office or by a local agent. No further premium was ever paid by Colonia Berry.
As to the mailing procedures followed by the insurer, the evidence shows that cancellation letters are signed by Mr. Oswalt. The letter is placed in a sealed envelope and together with a copy it is sent to the mail room. Victor Pool is the insurer's mail clerk, and was such clerk on 18 July 1969. After comparing the address of the copy with the address on the envelope, the sealed envelope is stamped by Pool with proper postage and he places a five cent proof of mailing stamp, apparently by meter, on the copy. He then stamps "Mailed" on the copy, and places his initials on the stamp. The sealed envelope and the copy are then taken to the Green Lantern Branch of the Montgomery Post Office and delivered to a mail clerk. The mail clerk compares the address on the envelope with the address on the copy of the letter, and if the two correspond the mail clerk rubber stamps on the copy a circular stamp with the date in the center. The copy is then returned to Pool, and the stamped sealed envelope with return address thereon is sent to the Montgomery central Post Office for transmission to the addressee.
Julian C. Brown testified that three proof of mailing stamps are kept in the Green Lantern Branch Post Office, of which he is superintendent. He locks them in the safe when the Post Office is closed, and none has ever been lost or misplaced.
The copy of the letter of cancellation, the 5 cent proof of mailing stamp, the stamp placed by insurer's mail clerk Pool, and the circular proof of mailing stamp placed by the postal clerk thereon, all bear the date 18 July 1969.
All of the witnesses testified that the procedure outlined above was the one followed in connection with the letter of cancellation, though they had no recollection as to any specific letter. We observe here that the stamps on the copy fully corroborate the witnesses.
A copy of the letter of cancellation was mailed to and received by Bill Martin, insurer's agent in Andalusia. Martin testified that when Colonia Berry reported the accident on 9 August 1969, he asked her if she had not received the notice of cancellation and she replied she had not.
In her sworn answer to the complaint, Colonia Berry averred she had never received the notice of cancellation.
The cancellation provision in the policy reads in part:
*224 The case was tried under the provisions of Act No. 101, 1943 Acts of Alabama, p. 105, now carried as Sec. 372(1), Title 7, Michies Recompiled Code of Alabama 1958, which section obviates the necessity of objections to testimony offered, and providing that only such evidence as is relevant, material, competent, and legal, shall be considered by the court.
Assignment of error 9 is to the effect that the court erred in finding from the evidence that the insurance policy was cancelled as of 28 July 1969, since the court also found there was no evidence that Colonia Berry ever received notice of cancellation or of an additional premium due.
This assignment is without merit. While the court did find there was no evidence that the notice of cancellation was received by Colonia Berry, the court immediately observed that Colonia Berry introduced in evidence the supplemental policy of insurance which insurer showed by evidence had been mailed to her together with the bill for the increased premium, with no explanation by Colonia Berry that the policy had otherwise come into her possession. The court further found that the notice of cancellation was mailed as provided by the terms of the policy.
Counsel contends that under the doctrines of United States Fidelity & Guaranty Co. v. Williams, 43 Ala.App. 205, 186 So. 2d 738, and Employers National Ins. Co. v. Parker, 286 Ala. 42, 236 So. 2d 699, the burden was upon the insurer to show "conclusively" that the notice of cancellation was received by Colonia Berry. We do not read such requirement in either case. In Williams, supra, the question concerned the mailing of the notice of cancellation, not the receipt of such notice. Under the evidence the Court of Appeals concluded:
The court further stated that it was also of the opinion that the cancellation order was not authorized by anyone with authority to cancel.
In Parker, supra, the insured admitted receiving a notice of cancellation, but said notice was replete with "errors, omissions, and oversights." The court, quoting from the Williams case stated that the lower court could find that the evidence "was not of such definite and specific character as to show conclusively the mailing of the notice to plaintiff (insured)," meaning of course an effective or proper notice of cancellation, not one replete with errors.
The letter of cancellation as shown at the beginning thereof was addressed to "Colonia Berry." The fact that the salutation was "Dear Mr. Berry" rather than "Dear Mrs. Berry" was immaterial as to the efficacy of the notice of cancellation, the notice being otherwise in proper form. The prefix "Mr." or "Mrs." is no part of a persons name, and amounts to no more than a titlea mere redundancy. Weathers v. Modern Masonry Materials, Inc., 107 Ga. App. 34, 129 S.E.2d 65. See also 38 Am. Jur., Name, Section 9.
It is our view that while the degree of proof of mailing as set out in the quotations above, i. e., the proof should "show conclusively," the term "conclusively" should not be taken in a literal sense, but merely requires proof which is clear and convincing. Bun v. Central Pennsylvania Quarry Stripping & Construction Co., 194 Pa.Super. 630, 169 A.2d 804. Such term should not be stretched to the length that its meaning in a literal sense might import, and should not encompass more proof than is sufficient to reasonably satisfy the mind of the trier of fact. Freese v. Hibernia Savings & Loan Assn., 139 Cal. 392, 73 P. 172.
The presumption of law is that a letter, properly addressed with sufficient postage, and unreturned to the sender *225 whose address is shown on the envelope, was received by the addressee. Sorrell v. Scheuer, 209 Ala. 268, 96 So. 216; Franklin Life Ins. Co. v. Brantley, 231 Ala. 554, 165 So. 834.
Evidence tending to show that a letter was not received raises a question for the trier of fact as to whether the letter was mailed. Corinth Bank & Trust Co. v. Cochran, 219 Ala. 81, 121 So. 66.
Under assignment of error 7, counsel for appellants argue that the court erred in finding that the testimony of the complainant (insurer) was undisputed.
It is counsel's contention that a dispute exists in the testimony because, (1) Colonia Berry in her sworn answer alleged she had not received the letter of cancellation, and (2), Jim Martin, the Andalusia agent for the insurer, testified that Colonia Berry stated to him she had not received the notice of cancellation when she came to his office to report the accident.
It is true that in his decree the Chancellor does set forth early in the decree, and before the adjudication and decretal portion of his decree, that "the only testimony before the Court being the testimony offered by the Complainant, it becomes the court's duty to accept the testimony of the Complainant, and inasmuch as the same is undisputed, finds that it was true." (Emphasis ours.)
In Jones v. Hines, Director General of Railroads, 205 Ala. 145, 87 So. 531, the trial court had found that the evidence was without dispute. The late Chief Justice Gardner observed that such statement was but a conclusion, could well have been omitted, and might be treated as surplusage. It was held that the judgment was amply supported by the evidence and such support was not destroyed even if there was some evidence from which a contrary conclusion could have been drawn.
Without intimating in any wise that either the averment of non receipt of the letter of cancellation in Colonia Berry's sworn answer, or the testimony of Martin relative to Colonia Berry's denial of receipt of the letter of cancellation, was, or was not, competent evidence, the evidence as to the proper mailing of the letter was abundant. The presumption under such evidence is that the letter was received. A question of fact solely within the province of the trier of fact was presented.
Even had Colonia Berry as a witness denied the receipt of the letter of cancellation, the evidence presented by the insurer as to the mailing of such letter was ample to support the adjudication of the issues by the Chancellor. Under such circumstances the reasons upon which he based his adjudication are unimportant. Cherokee County v. Cunningham, 260 Ala. 1, 68 So. 2d 507, and cases cited therein.
Appellants' assignment of error No. 11 is to the effect that the court erred in its decree by finding from the evidence that the notice of cancellation was mailed as provided by the terms of the policy.
In view of the terms of the policy as to mailing, set out above, and the evidence as to such mailing, the decree of the court was fully supported in this regard, and assignment of error No. 11 is untenable and unavailing.
Affirmed.
LAWSON, COLEMAN, MADDOX and McCALL, JJ., concur. | July 22, 1971 |
1b3759c5-baa6-4663-820e-f1fe5c373b83 | Hampton v. Gulf Federal Savings & Loan Association | 249 So. 2d 829 | N/A | Alabama | Alabama Supreme Court | 249 So. 2d 829 (1971)
James B. HAMPTON et al.
v.
GULF FEDERAL SAVINGS & LOAN ASSOCIATION.
4 Div. 339.
Supreme Court of Alabama.
June 24, 1971.
*830 Powell & Sikes, Andalusia, for appellants James B. Hampton and Martha Posey Hampton.
W. H. Baldwin, Andalusia, for appellant Elva M. Posey.
James M. Prestwood, Andalusia and Barrow & Holley, Crestview, Fla., for appellee.
PER CURIAM.
This is an appeal from a decree of the Circuit Court of Covington County, in Equity, foreclosing a mortgage executed by James B. Hampton and wife to Gulf Federal Savings & Loan Association (hereinafter called Gulf Federal).
The suit was filed by Gulf Federal against the Hamptons and against Mrs. Elva M. Posey, who held a second mortgage on the mortgaged property.
As between Gulf Federal and the Hamptons, there was one principal issue. The mortgaged property consisted of a lot and a two-story hotel building situated thereon. The building burned after foreclosure proceedings had been instituted. The Hamptons took the position that the building was not insured in the proper amount at the time it burned as a result of the failure or negligence of Gulf Federal, the mortgagee, to keep the building adequately insured.
The trial court found that Gulf Federal "* * * was not under any duty to keep insurance in full force and effect as to protect the interest of the mortgagors * * *" The trial court's decree was in accordance with that finding.
The Hamptons have appealed and argue their assignment of error that "the Trial Court erred in relieving the appellee, Gulf Federal Savings & Loan Association, of its negligence in failing to properly insure the property covered by its mortgage."
The evidence shows that on July 27, 1963, James Hampton and wife executed a note to Gulf Federal in the amount of $20,000 and gave a mortgage to Gulf Federal on the property to which we have referred above as security for the loan. The property described in the mortgage executed by the Hamptons to Gulf Federal was not at the time of the execution of the mortgage owned by the Hamptons. That property was not conveyed to the Hamptons until August 16, 1963, on which date James F. and Elva M. Posey conveyed the property to the Hamptons. At that time the Hamptons executed a note to the Poseys in the sum of $10,000, secured by a purchase-money mortgage.
On June 14, 1965, the Hamptons executed another note to Gulf Federal, which note was in the sum of $3,500, and the debt evidenced by that note was purported to be secured by the mortgage of July 27, 1963, under the future advance clause of the last-mentioned mortgage. The note in the amount of $3,500 contained language to the effect that it was secured by the mortgage of July 27, 1963, and was made subject to the terms and conditions thereof.
The mortgage of July 27, 1963, to which we will sometimes hereinafter refer as the Gulf Federal mortgage, provided that in the event of loss the insurance proceeds were to be paid directly to the mortgagee. The mortgage obligated the mortgagors, the Hamptons, to maintain insurance under the following clause:
Under paragraph two of the mortgage, the mortgagors were required to make certain payments to the mortgagee as follows:
The Hamptons originally handled the matter of hazard insurance on the hotel in compliance with the mortgage. They selected as their insurance agent Wallace Smith, who did general insurance business in Florala under the name of Smith Insurance Agency. The insurance coverage was originally for $25,000, for which a premium of $300 was charged. The premium increased over a period of time and the Hamptons went to another insurance agency, but the company with which this other insurance agency obtained coverage cancelled the policy.
In October, 1965, by mutual authorization from Gulf Federal and the Hamptons, the Smith Insurance Agency again insured the property but the coverage was for only $20,000. The $20,000 coverage was divided into two policies with two different companies, in the amount of $10,000 each. One company cancelled its policy in December, 1965, and Smith Insurance Agency obtained a replacement company for this coverage.
The Hamptons were in bad financial condition and over a period of the life of the loan, more than thirty checks from the Hamptons were returned by a bank for insufficient funds. The hotel business proved to be a bad financial investment and the Hamptons fell further and further behind in regard to their obligations to Gulf Federal under their notes and the mortgage.
In the summer of 1966, the Hamptons stated that they were ready to give up and wanted Gulf Federal to take over and operate the hotel. Gulf Federal told them that it did not want to operate the hotel and didn't want the property, but wanted to help them some way or another to save the property.
On August 30, 1966, foreclosure proceedings were instituted. Immediately thereafter, the Hamptons were served with notice of foreclosure proceedings. Without notifying Gulf Federal, the Hamptons closed the hotel down and left Alabama on September 15, 1966.
Mr. Wallace Smith, the insurance agent, notified Gulf Federal that the property was vacant and if it remained vacant for sixty days the insurance would not be valid. A Gulf Federal witness stated that it looked for the Hamptons and asked about their whereabouts in many places without success. The witness also stated that Gulf Federal had many inquiries concerning where the Hamptons could be found. Gulf Federal arranged to have the water and lights reconnected and to have a policeman live in the building to prevent the insurance from becoming invalid because of the sixty-day unoccupied clause of the policy.
Mrs. Hampton testified that they left for North Carolina on September 16, 1966, without notifying Gulf Federal and she did not know at that time whether they would ever return to Florala. She also testified that at that time she knew that if the property was unoccupied for sixty days the policy would be null and void, but stated that she thought Gulf Federal would take over the hotel in two weeks from the date of their departure.
*832 Insurance agent Smith notified his companies about the status of this property and the circumstances of the Hamptons. In October, 1966, when the renewal came upon these policies, the proposed premiums for $20,000 coverage were $1,050 a year. At that time there was only $475 in the escrow account of the Hamptons with Gulf Federal. Gulf Federal decided to reduce the insurance coverage down to $10,000, paying $525 premium for such coverage.
Gulf Federal did not notify the Hamptons of the reduction in the insurance to $10,000 in writing or otherwise, contending that it did not know their whereabouts. The hotel building burned on October 27, 1966. Following the fire, Gulf Federal received a letter from Mr. Hampton, dated October 20, 1966, from Raleigh, North Carolina, in which Mr. Hampton admitted that they had acted very badly in leaving so suddenly and without notice. Mr. Hampton, in effect, apologized for not have written sooner, but stated that they had been trying to find jobs and a place to live. The real purpose of the letter was to inquire about who bought the place at the foreclosure sale.
Insurance agent Smith testified, in substance, that the facts that the Hamptons had been delinquent in their mortgage payments; that the property had been vacated; and that the property was of a class known as a "White Elephant," caused the risk to accelerate to the point of almost making insurance prohibitive.
Gulf Federal received $9,900 of the insurance proceeds which it credited to the outstanding loan balance of $21,373.15. The trial court determined that the remaining unpaid balance with interest and late charges was $14,901.43 at the time of the trial. The trial court also awarded the amount of $2,500 as a reasonable attorneys' fee to Gulf Federal's counsel.
Appellants contend Gulf Federal should be charged with the $10,000 reduction of insurance and that the mortgage indebtedness owed by the Hamptons should be reduced by such amount. In support of their position, the appellants cite Wade v. Robinson, 216 Ala. 383, 113 So. 246, for the principle that a mortgagee who assumes the duty of handling insurance on mortgaged property must act in good faith and must use reasonable care. In that case, the vendor under a contract to sell real property, who had the option of handling insurance matters, exercised said option and took out fire insurance on the property being sold to the vendee, but failed to adequately describe the interest of the parties, thereby rendering the policy uncollectible. The vendor was held liable. For the same principle, the appellant also cites Boyce v. Union Dime Permanent Loan Association, 218 Pa. 494, 67 A. 766, and Warrener v. Federal Land Bank, 266 Ky. 668, 99 S.W.2d 817.
In the Boyce case, supra, originally the mortgagor handled the insurance, but the mortgagee by agreement expressly undertook to procure the insurance and inadvertently described the wrong property. After loss of the property, the mortgagee was held liable for a breach of a duty to properly insure the property.
In Warrener there was no obligation on the part of the mortgagee to insure the property, but there was an option to handle the insurance, which the mortgagee undertook to exercise. The mortgagee represented to the mortgagor that insurance had been placed on the property, but actually it was not done. For such failure and misrepresentation, the court held that a cause of action was presented and that a demurrer to the bill was improperly sustained.
In the instant case, the breach of duty charged was the failure on the part of Gulf Federal to keep the hotel building adequately insured. The appellants contend that it should have been insured for $20,000 instead of $10,000. First, it is necessary to determine whether there was a duty on the part of Gulf Federal to adequately insure the building at all times. In endeavoring to answer this inquiry, the *833 language of the mortgage should be examined. The mortgage provided that the mortgagor had the duty to carry the amount of insurance which Gulf Federal would require, which amount Gulf Federal could change "from time to time." The mortgage made no provision in express terms for Gulf Federal to provide for the insurance. However, under paragraph two of the mortgage, the mortgagors were required to pay to Gulf Federal a sum for the premiums that will next become due and payable on the policies of fire and other hazard insurance required to cover the mortgaged property. Such money paid was placed in an escrow fund, from which payments were only made by Gulf Federal. The replacing of the insurance with Smith Insurance Agency was done by the mutual authorization of the Hamptons and Gulf Federal. Certainly there can be no doubt that the Hamptons consented to the arrangement by which Gulf Federal handled the insurance matters before the reduction took place.
In a case analogous to the instant one, Keith v. Crump, 22 Ind.App. 364, 53 N.W. 839, it was held that where the amount and manner of distribution of insurance were entirely within the discretion of the mortgagee under an express agreement that the mortgagee was to provide such insurance, no liability would be imposed upon the mortgagee for failure to procure any insurance. In that case, the action was for a breach of contract and the court found that there was no measure of damages since the amount of insurance was left entirely up to the mortgagee.
Under the language of the mortgage, the right of Gulf Federal to fix the amount of the insurance was absolutely discretionary at any time. It had the right to determine, unilaterally, the amount of the insurance and even had the right under the provisions of said mortgage to reduce the coverage to zero.
This case is unlike those cases cited by the appellants where a mortgagee undertakes to perform a nondiscretionary obligation arising from either a written agreement or an oral agreement, and such obligation is negligently carried out. Here, the language of the mortgage confers upon the mortgagee complete discretion pertaining to the amount of insurance and the right to change such amount "from time to time." Therefore, this court holds that under the language of the mortgage, Gulf Federal was under no duty to keep insurance on the mortgaged property in the amount previously maintained. In addition to this, this court further holds that under the language of the mortgage and the facts of this case, the mortgagee was under no requirement to give the mortgagors notice of the reduction of insurance coverage. Thus, there was no error in the trial court's holding that Gulf Federal would not be charged with the $10,000 reduction in insurance coverage.
The major issue between Gulf Federal and Mrs. Elva M. Posey was whether Gulf Federal's mortgage took precedence over the Posey mortgage as to the $3,500 advance made to the Hamptons by Gulf Federal after the execution of the Posey second mortgage.
The trial court decreed, in effect, that Gulf Federal's mortgage did take precedence over the Posey mortgage as to the $3,500 advance.
Mrs. Posey, in appealing from the final decree of the trial court, made the following assignment of error, which is argued in her brief: "The Trial Court erred in making the entire indebtedness owed by James B. Hampton and Martha Posey Hampton to Gulf Federal Savings & Loan Association a first lien on the land involved in this suit."
The Gulf Federal mortgage contained a future advance clause which reads, in pertinent part:
The mortgage also contained a clause limiting future advances to a period of ten years from the date of the mortgage.
It is without dispute in the evidence that Gulf Federal at the time it made the $3,500 advance to the Hamptons had actual knowledge of the existence of the Posey mortgage.
The almost universal rule is to the effect that after notice of the attaching of a junior lien, the senior mortgagee will not be protected in making optional future advances under his mortgage given to secure such advances. Elmendorf-Anthony Co. v. Dunn, 10 Wash. 2d 29, 116 P.2d 253, 138 A.L.R. 558; 9 Thompson on Real Property, 1958 Replacement, § 4747, at p. 397; 1 Jones on Mortgages, 8th Ed., § 452, p. 583. See Farmers' Union Warehouse Co. v. Barnett Bros., 223 Ala. 435, 137 So. 176. It has been asserted, as is shown in the dissenting opinion, that the general rule should not apply in this case because the Posey mortgage contains the following language: "This is the second mortgage and by the acceptance thereof, James F. Posey and Elva M. Posey, acknowledge that it is subordinate to a mortgage to Gulf Federal Savings and Loan Association of Crestview, Florida."
We do not see any reason why the general rule should not apply simply because the Posey mortgage shows on its face that it is subordinate to the Gulf Federal mortgage.
There is no language in Auburn Ins. Agency v. First Nat. Bank of Auburn, 263 Ala. 30, 81 So. 2d 600, which can reasonably be said to constitute a holding to that effect. In fact, the court expressly refused to rest the decision in that case on what the writer of the opinion characterized as a limitation to the general rule when the second mortgage is expressly made subject to the first mortgage, which has provisions for optional future advances. The writer of the opinion in the Auburn Ins. Agency case cited 138 A.L.R. 571. We will not encumber this opinion by quoting the language found on pp. 571-572 of 138 A.L.R. to which the writer of the opinion in the Auburn Ins. Agency case had reference. We think it sufficient to say that a reading of the excerpts from the two cases referred to on those pages will show that neither case is authority for the proposition asserted in the dissenting opinion. We find no efficacy in the contention that when an instrument shows on its face that it is a second mortgage it must be held to be inferior to future advances made by the first mortgagee with knowledge of the existence of the second mortgage because a contrary holding would subordinate only one aspect of the second mortgage and not other aspects.
There is nothing unusual in an instrument which in effect constitutes a junior lien containing language expressly showing that it is a junior lien or a second mortgage. It is common practice.
As far as we are able to determine, no court has felt constrained by the force of such so-called logic to reach the result advocated in the dissenting opinion.
We can see no reason why the general rule should not apply in this case because of any unusual factual situation.
When the Gulf Federal mortgage was executed, Gulf Federal got no security for its loan because the Hamptons did not own *835 the mortgaged property. In order to give Gulf Federal priority over the purchase-money mortgage executed by the Hamptons to the Poseys, language had to be incorporated in the Posey mortgage to the effect that it was subordinate to the Gulf Federal mortgage. In view of the fact that from Gulf Federal's point of view, it was at least advisable for the Posey mortgage to show that it was subordinate to Gulf Federal's mortgage, we can see no reason to engraft upon the salutary general rule an exception or limitation the like of which we have been unable to find in any opinion of any court or in any textbook or reference work.
We hold that under the facts of this case, the trial court erred in not holding that the $3,500 optional advance made by Gulf Federal, with actual knowledge of the Posey mortgage, is subordinate to that mortgage.
The appellants assign as error the awarding of an attorneys' fee of $2,500 to the appellee's solicitors. The appellants contend such fee was unreasonable. In fixing the amount of attorneys' fees, the trial court may call to its aid its own estimate of the value of the services. Atkinson v. Kirby, 270 Ala. 178, 117 So. 2d 392. This court is unable to find that the fee was so excessive as to pronounce error in the allowance made by the trial court.
For the error pointed out above, the decree of the trial court is reversed and the cause is remanded.
Reversed and remanded.
LAWSON, SIMPSON, MERRILL, COLEMAN and HARWOOD, JJ., concur.
HEFLIN, C. J., and BLOODWORTH and McCALL, JJ., dissent.
HEFLIN, Chief Justice (dissenting):
In Auburn Insurance Agency v. First National Bank, 263 Ala. 30, 81 So. 2d 600 (1955), a second mortgage was expressly made inferior to a first mortgage. One of the questions involved in that case was the priority of advancements over the claim of a second mortgage. The opinion noted that the general rule is that "if the first mortgagee has the option by the terms of the mortgage to make future advances, and does so after a second mortgage is made and with knowledge of that mortgage, those advances are ordinarily subordinate to the second mortgage," citing 138 A.L.R. 566. (Emphasis supplied.) However, this Court, as then constituted, mentions limitations on that general rule. First, actual notice of the existence of a second mortgage would not subordinate advancements where the second mortgage was expressly made subject to the first mortgage which provided for such optional future advances, citing 138 A.L.R. at 571 (however, this was dictum). And second, when the first mortgagee can make optional advances independently of the consent of the mortgagor, such advances would not be subordinate, but if the mortgagee must obtain the consent of the mortgagor, the advances are subordinate, this on the theory "that by executing the second mortgage, the mortgagor has estopped himself from making an agreement or giving consent in derogation of the rights granted by the second mortgage," citing 138 A.L.R. at 572.
As noted above, the first limitation to the general rule mentioned in Auburn Insurance Agency v. First National Bank, supra, was dictum. And in the A.L.R. annotation cited by this Court as then constituted, as authority for such limitation, the supportive language of cases is indeed sparse. However, the logic for such a limitation and, in addition thereto, a motivation to refrain from disturbing dictum without sound reasons persuades me to follow it.
I attach significance to the fact that one mortgage contained express language that it was subordinate to the other mortgage. Without such language, the relevant standing of mortgages must be determined by *836 the sequence in which the mortgages are recorded. The acceptance of a mortgage which recites that it is inferior or subordinate to another mortgage is clearly an acknowledgment and agreement by the accepting mortgagee as to which mortgage is secondary regardless of the order of recordation. Thus by expressed language, the superior designated mortgage becomes a first mortgage and the inferior designated mortgage assumes the title of a second mortgage.
The self-proclaimed inferior second mortgage is an agreement and admission that the designated first mortgage shall have priority of rights over such second mortgage. Reason and prudence demand that an agreement-bound second mortgagee ascertain the terms and provisions of the designated first mortgage. Before departing with money or property and taking security therefor in the form of a mortgage which will be expressly encumbered by superior rights, such self-acknowledged second mortgagee should determine the extent and provisions of such superior rights contained in the instrument to which by agreement his rights have been subordinated.
Where there is a clear recital that a second mortgage is subordinate to a first mortgage, I feel that such reference is applicable to all features of the first mortgage, including the "future advances" clause. To hold that a second mortgage, which recites that it is inferior to a first mortgage, is subordinate to only a few aspects of the first mortgage and not to the remainder of its features would place courts in the future in the illogical and unreasonable posture of delineating which portions of a mortgage will be subordinate and which will not. Unless otherwise stated, a second mortgage which recites its own inferiority to another mortgage must be, and is, subordinate to all the features of such other mortgage.
In the instant case, the Hamptons gave the first mortgage to Gulf Federal before the Poseys conveyed the property to the mortgagors. At the time the property was conveyed, the money loaned by Gulf Federal to the Hamptons went to the sellers, the holders of the self-denominated inferior second mortgage. By agreement of the parties, the Poseys took a second mortgage which recited that it was subordinate to the first mortgage. The insertion of the subordination language was not just an innocuous act. Such language clearly established the priority of the mortgages under these circumstances. The first mortgage contained a limit as to the total amount, including future advances, that Gulf Federal could loan the Hamptons, as well as a time limitation during which future advances could be made. If the second mortgagees intended to make the second mortgage inferior only to a portion of the provisions of the first mortgage, excluding the future advances clause, then it would have been incumbent on them to see that such partial subordination was expressed in clear and unambiguous language.
BLOODWORTH and McCALL, JJ., concur in the above dissent. | June 24, 1971 |
33cb5c0d-ece7-4b34-b1c5-4ae2d85a0292 | Ex parte Brodrick LeWayne Morgan. | N/A | 1190956 | Alabama | Alabama Supreme Court | IN THE SUPREME COURT OF ALABAMA
March 12, 2021
1190956
Ex parte Brodrick LeWayne Morgan. PETITION FOR WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Brodrick
LeWayne Morgan v. State of Alabama) (Jefferson Circuit Court:
CC-17-3266; Criminal Appeals :
CR-18-0169).
CERTIFICATE OF JUDGMENT
WHEREAS, the petition for writ of certiorari in the above referenced
cause has been duly submitted and considered by the Supreme Court of
Alabama and the judgment indicated below was entered in this cause on
March 12, 2021:
Writ Denied. No Opinion. Stewart, J. -
Parker, C.J., and Bolin, Wise, and
Sellers, JJ., concur.
NOW, THEREFORE, pursuant to Rule 41, Ala. R. App. P., IT IS
HEREBY ORDERED that this Court's judgment in this cause is certified on
this date. IT IS FURTHER ORDERED that, unless otherwise ordered by this
Court or agreed upon by the parties, the costs of this cause are hereby taxed
as provided by Rule 35, Ala. R. App. P.
I, Julia J. W eller, as Clerk of the Suprem e Court of Alabama, do hereby certify that the
foregoing is a full, true, and correct copy of the instrum ent(s) herew ith set out as same appear(s)
of record in said Court.
W itness my hand this 12th day of March, 2021.
Clerk, Supreme Court of Alabama | March 12, 2021 |
33abfb24-9e70-4cd5-96fb-5031f042150d | Dannelly v. State | 254 So. 2d 443 | N/A | Alabama | Alabama Supreme Court | 254 So. 2d 443 (1971)
In re William Edward Ashby DANNELLY, Jr.
v.
STATE of Alabama. Ex parte William Edward Ashby Dannelly, Jr.
2 Div. 544.
Supreme Court of Alabama.
October 21, 1971.
Pitts, Pitts & Thompson, Selma, L. Y. Sadler, John Godbold, Camden, for petitioner.
William J. Baxley, Attorney General, and David Clark, Asst. Atty. Gen., for the State.
MERRILL, Justice.
Petition of William Edward Ashby Dannelly, Jr. for Certiorari to the Court of Criminal Appeals to review and revise the judgment and decision of that Court in Dannelly v. State, 47 Ala.App. 363, 254 So. 2d 434.
Writ denied.
HARWOOD, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., concurs in the result.
HEFLIN, Chief Justice (concurring in the result):
I concur in the result of denying the writ in this cause. However, I want it clearly understood that I do not approve all of the language contained in the opinion of the Court of Criminal Appeals. My position concerning drug-affected confessions was set forth in a dissenting opinion in Beecher v. State, Sup.Ct.Mo. 7 Div. 846. | October 21, 1971 |
4c6cb5f0-5b3b-4fd5-a7b0-42eaf1754749 | Armstrong v. Smith | 251 So. 2d 216 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 216 (1971)
Bessie L. ARMSTRONG, et al.
v.
Cynthia Elizabeth Lucas SMITH.
4 Div. 397.
Supreme Court of Alabama.
July 29, 1971.
Tipler, Fuller & Melton, Andalusia, for appellants.
Lewis V. Chesser, Andalusia, for appellee.
COLEMAN, Justice.
Respondents appeal from a decree favorable to complainant in a suit to determine title to land.
The dispute is between a mother, the complainant Cynthia Elizabeth Lucas Smith, and her four children who are all over the age of twenty-one years and are the respondents.
The subject matter of the suit is fifty-seven acres of land in Covington County. The complainant contends that she owns the entire interest in the land in fee simple. The respondents allege:
It was stipulated that "all parties on both sides want the Court to interpret this deed and determine the exact ownership of the land." No witness testified. The court decreed that complainant is the owner of the land in fee simple and enjoined respondents from interfering with complainant in the peaceful possession of the land.
We assume that some or all of the respondents were in existence at the effective date of the deed because, if complainant had no child in being at that date, it seems clear beyond question that respondents can take nothing by the deed.[1]
The decision on this appeal must depend on the construction of the deed and the meaning given to its terms, particularly the expression "offsprings or heirs."
Respondents say that the instrument bears on its face evidence that it was drawn by one who was not skilled in the use of legal terms, and the language of the deed appears to support this insistence of respondents. They insist further that, because the instrument bears the marks of an unskilled draftsman a greater latitude of construction must be indulged than would be allowed in construing an instrument which appears to have been drawn by a skilled draftsman, citing Hammer v. Smith, 22 Ala. 433; Campbell v. Gilbert, 57 Ala. 569; and Gamble v. Gamble, 200 Ala. 176, 75 So. 924, among other cases. Complainant does not appear to disagree with the insistence that the deed indicates the unskillfulness of the draftsman or that a liberal construction should be indulged. Indulging a liberal construction, however, does not appear to establish the conclusion for which respondents contend; to wit, that the word "offsprings" is to be construed as a word of purchase and not as a word of limitation.
The word "offsprings" appears three times in the deed. First, the grantors say that they make the conveyance "for and consideration of the love and affection we bare (sic) toward our beloved daughter Cynthia .... and her offsprings." Second, the conveyance is to "our said *218 daughter and offsprings or heirs," thereby indicating that "offsprings" is equivalent to or a synonym for "heirs," but this does not require that "heirs" be given its technical meaning. Third, the habendum is to "said Cynthia .... and her said offsprings," referring, it must be, to the "offsprings or heirs" just mentioned in the granting clause.
The question is, did the grantors intend that the grant be to Cynthia and the particular persons who were her children living at the effective date of the deed; or, did the grantors intend that the grant be to Cynthia and that class of persons who at some indefinite time would be embraced within the description "offsprings or heirs"?
If the construction be that by "offsprings or heirs" the grantors intended to designate only those individuals who were the living children of Cynthia at the time of execution of the deed, then, according to the decisions of this court, Cynthia and her children then living took an estate as tenants in common. Moore v. Lee, 105 Ala. 435, 17 So. 15.[2]
In designating the grantees, however, the grantors did not use the word "children." Moreover, the grantors referred to "offsprings," the word they did use, as the equivalent of "heirs."
Immediately following the statement, "To have and to hold the same forever," the grantors inserted the following command:
From all the provisions of the deed, what is the reasonable construction of the meaning to be given to the words used to designate the grantee? Did the grantors intend that the grantee be only the daughter, Cynthia, and her children living at the date of the deed, or, did the grantors have in mind that the grantee should be not only Cynthia but also her "offsprings" into the indefinite future?
If the grantors, by conveying to "our said daughter and offsprings or heirs" intended to vest an estate in fee simple in Cynthia and her then living children as tenants in common, why did the grantors, in the habendum, say to have and to hold to Cynthia and her said offsprings, but before expressing the quality of the estate or its duration, repeat the infinitives, "To have and to hold the same" before adding the customary "forever"? What intention is shown by the command perpetually forbidding alienation?
The reasonable inference appears to be that grantors' real intent was to create in Cynthia an estate tail to be enjoyed by her and her "offsprings" forever.
Respondents cite McGuire v. Westmoreland, 36 Ala. 594, in support of the proposition that "offsprings" means children. In McGuire, there was a bequest of slaves to Lucy Westmoreland so long as her existing marriage continued with gift over, on dissolution of the marriage, "`.... to the present and future children, the offspring of the said marriage between said Edwin B. and Lucy Westmoreland, that may be living at the time of the happening of such dissolution of marriage.'" This court held that the word "children," as there used, did not include grandchildren, and that the words "the offspring of," as used in the will, did not enlarge the ordinary meaning of the word "children." In the instant case, the word "children" is not used and McGuire is of no assistance.
Respondents cite also Duncan v. De Yampert, 182 Ala. 528, 62 So. 673, where this court said:
Here again the word "children" was being construed. It may well be conceded that generally "children" means immediate offspring, but that concession does not require that the meaning of "offspring" be limited to lineal descendents of the first degree; i. e., immediate offspring.
We are not advised of any decision of this court construing the terms "offsprings" or "offsprings or heirs" when used in a deed as in the case at bar. A few similar cases decided by other courts appear appropriate for mention.
In considering the effect of a statute on the rule in Shelley's case, the Mississippi court, referring to the common law rule, said:
In construing a will devising land to Amanda Stephens, which will provided that in the event of her ".... `dying unmarried, or, if married, dying without offspring by her husband ....'...." then the lots were to be sold and the proceeds given to others, the Supreme Court of Pennsylvania concluded that: ".... The word `offspring,' here used, is but a synonym for `issue;'...." Mitchell v. Pittsburg, Fort Wayne & Chicago Ry. and the Penna. Co., 165 Pa. 645, 650, 31 A. 67, 68. In construing the same will, the Supreme Court of the United States said:
In construing an earlier will the Supreme Court of Pennsylvania said:
The Court of Appeals of Kentucky construed a deed conveying real estate to "`.... Louise Massingale, and the "offsprings of her body" parties of the second part.'" Louise Massingale was the daughter of the grantors. The Kentucky court held that the deed created in Louise Massingale an estate tail which was converted by statute into a fee simple. The court said that if from the whole instrument it may be fairly inferred that the words "offsprings of her body" were used in any particular sense, the instrument would be construed to mean what the parties intended; but, the court found nothing from which it may fairly be inferred that *220 the parties used that language in any other than its technical sense. The court said:
The Kentucky court then cited and considered Barber v. Pittsburgh, Fort Wayne and Chicago Ry. Co., supra; Allen v. Markle, supra; Powell v. Brandon, supra; and Dempsey v. Davis, 98 Ark. 570, 136 S.W. 975. The court then said:
Nothing in the instant deed to complainant persuades that the grantors used the terms "offsprings" or "offsprings or heirs" in a sense which restricts the ordinary meaning of the terms so that only the four children of complainant were intended, with the result that complainant would take an undivided one-fifth interest as a tenant in common with her children.
Complainant took an estate in fee simple, or at the least an estate in fee tail converted by statute into a fee simple, unencumbered by any estate in her children.
Affirmed.
HEFLIN, C. J., and SIMPSON, BLOODWORTH, and McCALL, JJ., concur.
[1] In Gilchrist v. Butler, 214 Ala. 288, 290, 107 So. 838, the devise was to "John A. Gilchrist and his children." This court said:
"Under the doctrine of Wild's Case, 6 Coke Rep. 17; 10 Eng.Rut.Cas. 773, it is clear that the children of John A. took nothing by the will (Shuttle & Weaver Land Co. v. Barker, 60 So. 157, 178 Ala. [366], 372; Vanzant v. Morris, 25 Ala. 285), because John A., at the time of the devise, had no children. The statute converted the common-law estate tail thus created into a fee in the first taker. Code 1923, § 6901."
[2] ".... The rule of law is that a conveyance to `A' and his children, if `A' have children at the time of the conveyance, the children take jointly with the parent, and after born children are excluded. Vanzant v. Morris, 25 Ala. 285; Varner v. Young's Ex'rs, 56 Ala. 260; Mason v. Pate's Ex'r, 34 Ala. 379; Williams v. McConico, 36 Ala. 22." (105 Ala. at 439, 17 So. at 16) | July 29, 1971 |
86a587dc-a821-4610-90aa-4956b3377d67 | City of Mobile v. Salter | 255 So. 2d 5 | N/A | Alabama | Alabama Supreme Court | 255 So. 2d 5 (1971)
CITY OF MOBILE, a Municipal Corporation
v.
Otha C. SALTER et al.
1 Div. 663.
Supreme Court of Alabama.
November 24, 1971.
*6 Edmund R. Cannon, Jr., W. Ramsey McKinney, Jr., Mobile, for appellant.
Simon & Wood, Mobile, for appellees.
MERRILL, Justice.
This appeal is from a decree in a declaratory judgment proceeding wherein an ordinance of the City of Mobile levying taxes on real estate in Highpoint Estates was held invalid because it was in conflict with Act No. 18, General Acts of Alabama 1956, p. 279, Second Special Session.
In the spring of 1956, the City of Mobile was sponsoring a bill to annex 64 square miles of new territory which included the Highpoint Estates area. The city commissioners had numerous meetings with the legislative delegation from Mobile County and the delegation agreed to introduce and pass the bill provided the commissioners would agree that no city ad valorem taxes would be levied on the newly annexed territory until certain agreed services were furnished to the inhabitants of the area. There was a meeting of the minds and the bill was advertised the required time for a proposed local bill, introduced, passed and after approval on March 16, 1956, was designated Act No. 18.
Section 1 of the bill gave it the name of "the Greater Mobile Act." Section 2 extended the boundaries of the city to include the new 64 square miles. Section 3, which is the crucial point in this litigation, provides in pertinent part:
*7 No city ad valorem taxes were levied against Highpoint Estates until the city passed Ordinance No. 50-049 on May 11, 1965.
The original bill seeking a declaration of rights was filed by complainants for themselves and other property owners in Highpoint Estates. The bill alleged the passage of Act No. 18, quoted Section 3 of the Act, alleged the passage of City Ordinance No. 50-049 and alleged that a justiciable controversy existed between them and the city in that the city "had not complied with the conditions and provisions of Act. No. 18."
Amendments to the bill contained a letter written by the mayor to one of the taxpayers on April 1, 1966, that their money paid for city ad valorem taxes would be refunded if the city failed to render "complete services" by October 1, 1966. But on January 17, 1967, one of the property owners received a letter from the city clerk stating that the city commissioners had instructed the city attorney to obtain a declaratory judgment to determine the legality of the refunds.
The demurrer to the bill as last amended was overruled and the city filed an answer and cross bill in which, for the first time, the constitutionality of Section 3 of Act No. 18 was challenged. Counsel for the city requested that the attorney general be served and the record shows service of "a CROSS bill of Complaint & Amended Bill" on him by the sheriff of Montgomery County.
On April 25, 1969, a month before the trial was had on May 26, 1969, the instant case was consolidated with the case of Snow v. City of Mobile, 287 Ala., 255 So. 2d 11, which was a similar suit brought by property owners of another subdivision, the Riviera de Chien area, where the same issues were involved.
It was undisputed at trial, and conceded here, that the city had not furnished sanitary sewer service to the Highpoint Estates area until November or December of 1968. The trial court found and decreed that (1) Act No. 18 of the Alabama Legislature is constitutional; (2) Complainants constitute a class consisting of all residents of the Highpoint Estates area; (3) City of Mobile Ordinance No. 50-049 is invalid as to property located in Highpoint Estates because contrary to Act No. 18; (4) any assessment of property in Highpoint Estates pursuant to the ordinance was invalid; (5) any attempted collection of taxes upon such property pursuant to the ordinance was invalid; and (6) the City of Mobile refund all taxes paid pursuant to assessments on such property.
On appeal, we are first faced with a procedural question. We note that counsel for appellant on appeal did not participate in the trial. Appellant contends that complainants never caused the attorney general to be served with their petition for declaratory judgment, that the petition challenged the constitutionality of the city ordinance levying the taxes, and having failed to serve the attorney general, the court never acquired jurisdiction of the action. We cannot agree.
Title 7, § 166, Code 1940, provides in part "* * * and if the statute, ordinance, or franchise is alleged to be unconstitutional, the attorney-general of the state shall also be served with a copy of the proceeding and be entitled to be heard."
But we do not construe the bill as amended, including the prayer, to do more than seek a declaration of rights of the complainants under the statute, Act No. 18. Issues are raised by the pleadings. The first time any allegation was made that the statute, Act No. 18, was unconstitutional was in the city's answer and cross bill, and the attorney general was served at that stage and notified that the constitutionality of Act No. 18 had been raised in the cause. The fact that the attorney general is not served or does not file a waiver early in the proceedings does not deprive the trial court of jurisdiction. Ex parte Dothan-Houston County Airport Authority, 282 Ala. 316, 211 So. 2d 451.
*8 We come now to the merits. Appellant contends that Section 3 of Act No. 18 is unconstitutional in that it violates §§ 104 (25), 104(9), 108, 104(15), 211 and 217 of the Constitution of 1901.
Section 104 begins, "The legislature shall not pass a special, private, or local law in any of the following cases: (25) Exempting property from taxation or from levy or sale."
The only construction of § 104(25) by this court we have found is Opinion of the Justices, 262 Ala. 345, 81 So. 2d 277. The pending bill in the legislature levied a county privilege license tax on electric public utilities, but § 6 of the bill exempted distributors or sellers of electricity whose business was not subject to regulation by the Public Service Commission. Question 5 of the request for advisory opinion read: "If H. 39 is duly enacted, would the provisions of Section 6 thereof make the act violative of Section 104(25) of the Constitution?" The answer of six members of the court was:
It is next contended that Section 3 of Act No. 18 is contrary to Section 104(9) which prohibits the legislature from passing a local law, "(9) Exempting any individual, private corporation, or association from the operation of any general law", and Section 108 which states:
Act No. 18 does not purport to exempt any individual, private corporation or association from the operation of any general law. The property involved continued to be subject to all the taxes, state and county, that it had previously been, and Act No. 18 states that it would not be subject to new city taxes until certain services, including sanitary sewers, were furnished by the city. That was the main part of the agreement between the city, the people affected and the legislative delegation. And the city lived up to the agreement from 1956 to 1965 when it first sought to levy city taxes without furnishing all the listed services it had agreed to furnish.
As to Section 108, we find no suspension of any provision of the general law. Appellant states that the general law here involved is Tit. 37, §§ 698-732, Code 1940 (Optional Method of Collecting Municipal Taxes). But the authority to tax is contained in Tit. 37, § 670, which states that "* * * cities and towns may levy taxes upon property and all subjects of taxation liable therefor, * * *." The property here involved had never before been liable for city ad valorem taxes and the very same act which brought the property into the city did not permit liability for such taxes to attach until the city had supplied the listed services, including sanitary sewers. We cannot agree that Section 3 of Act No. 18 violates Sections 104(9) or 108.
It is also argued that the statute offends Section 104(15) which prohibits the legislature by local law from "(15) Regulating either the assessment or collection of taxes, * * *."
It is true that the words "assessment" and "levied" are used interchangeably in Section 3 of Act No. 18, and it is clear that they are used in the sense of a "levy" *9 of taxes. "The assessment and collection of taxes is a wholly distinct power and duty, vested in a distinct body of magistracy, from that of levying a tax. The Constitution [Sec. 104(15)] is aimed at local legislation tending to confuse the authorities in the administration of the elaborate system of laws regulating the assessment and collection of taxes. It is not aimed at the exercise of the sovereign legislative power to levy taxes for lawful purposes by local or special laws. * * * I repeat, the gravamen of the act is the levy of a special tax, a purely legislative power, while the duties of the various officers in relation to the assessment and collection of taxes are ministerial and sometimes quasi-judicial." Sisk v. Cargile, 138 Ala. 164, 35 So. 114.
The City of Mobile uses the optional method of collecting municipal taxes and Section 3 of Act No. 18 is concerned with the levy, not the assessment or collection of taxes. There is no merit in this contention.
Appellant argues that Section 3 of Act No. 18 is contrary to Sections 211 and 217 of the Constitution of 1901. The pertinent part of those sections reads as follows:
Our opinions make it clear that Sections 211 and 217 of the State Constitution do not require that all property be taxed, that they do not prohibit exemptions or a reasonable classification. In re Opinions of the Justices, 234 Ala. 358, 175 So. 690; Lee v. State Tax Commission, 219 Ala. 513, 123 So. 6; State v. Alabama Power Co., 254 Ala. 327, 48 So. 2d 445.
In Monroe Bond & Mortgage Co. v. State ex rel. Hybart, 254 Ala. 278, 48 So. 2d 431, this court said regarding the equal protection clause of the Fourteenth Amendment and Sections 211 and 217:
As already noted, the property in question was not subject to any city taxation prior to the effective date of Act No. 18 and that act merely continued that status until certain enumerated services, including sanitary sewers, already being furnished to property inside the city before the annexation, were furnished to the property in the annexed area. Those services were being furnished at the time of the trial and there is no contention that the city could not legally levy taxes on the property subsequent to the furnishing of the services listed in Act No. 18. The discrimination would have been against the new property brought into the city if the tax had been levied prior to the furnishing of city services.
One of the methods of extending city limits is provided in Tit. 37, §§ 138-187, Code 1940, which require an election by the people involved in the new territory. It is interesting to note that Tit. 37, § 153 provides:
This section has been in our Codes since the Code of 1907. The legislature has always recognized that some inducement was necessary to get people to vote to have their property annexed to a city and we are aware of no case in which it has ever been held that such exemption resulted from a purpose or design to discriminate against the taxpayers already living within the city.
We find no intention in the act to make a systematic and intentional discrimination. On the other hand, it appears that there was a fair and honest judgment manifested and a purpose to deal fairly without discrimination by a systematic method and that there was no principle of inequality manifested.
Finally, appellant argues that Act No. 18, having a severability clause, would still be effective to extend the city limits even though Section 3 were declared unconstitutional.
In Allen v. Louisiana, 103 U.S. 80, 26 L. Ed. 318, the Supreme Court of the United States said:
This was quoted with approval in International Textbook Co. v. Pigg, 217 U.S. 91, 30 Sup.Ct. 481, 54 L. Ed. 678. That same court held in Spraigue v. Thompson, 118 U.S. 90, 6 Sup.Ct. 988, 30 L. Ed. 115, that if a clause in a statute which violates the Constitution cannot be rejected without causing the act to enact what the legislature never intended, the whole statute must fall.
In our case of Wilkinson v. Stiles, 200 Ala. 279, 76 So. 45, this court said:
Here the legislature, in Act No. 18, deprived the inhabitants of the 64 square miles of annexed territory of the right to vote on whether they desired to be annexed to Mobile or not. Had they been given that right, they could have had a period of up to fifteen years immunity from city taxation, Tit. 37, § 153. But in lieu of the privilege of voting on annexation, the legislature, in Section 3 of the act, provided that the property should not be subject to a levy for ad valorem taxes until the property was served by the enumerated municipal services. Section 3 was as important to Act No. 18 as consideration is to a deed. The provisions of Section 3 made the bill acceptable and passable, and the legislative delegation would not introduce the bill until the city commission agreed and advertised the bill containing that provision.
The city lived up to the agreement for nine years. It is not cast in too favorable a light to try to begin collecting taxes for the first time before it performs the consideration which it publicly advocated and promised in order to more than double its corporate territory. As we said in Water Works and Sanitary Sewer Board of City of Montgomery v. Campbell, 267 Ala. 561, 103 So. 2d 165, "The legal obligation and morality of the city or one of its boards should equal that of the market place."
The only case cited by appellant in support of its position is Allen v. Walker County, 281 Ala. 156, 199 So. 2d 854, but the author of that opinion, Harwood, J., was careful to insert the following language, "* * * If the act thus deleted of the invalid part is competent to stand without the invalid part, and leaves an enactment complete within itself, sensible, and capable of being executed, it will stand, unless the two partsthe valid and invalid are so inseparable as to raise the presumption that the Legislature would not have enacted the one without the other. * * *" [Emphasis supplied]
We are satisfied that with the exclusion of Section 3, the act is not in accord with the legislative intent and the whole would be affected if it were held to be unconstitutional.
No reversible error has been presented in brief and the decree of the trial court is due to be affirmed.
Affirmed.
HEFLIN, C. J., and LAWSON, HARWOOD and MADDOX, JJ., concur. | November 24, 1971 |
edf5ab0e-f65f-45ff-9e88-6437391f8240 | State v. Crenshaw | 249 So. 2d 622 | N/A | Alabama | Alabama Supreme Court | 249 So. 2d 622 (1971)
In re STATE of Alabama et al.
v.
F. W. CRENSHAW.
Ex parte State of Alabama and the Board of Tax Equalization of Butler County, Alabama, et al.
3 Div. 460.
Supreme Court of Alabama.
June 10, 1971.
MacDonald Gallion, Atty. Gen., Willard W. Livingston, Asst. Atty. Gen., and Counsel, Dept. of Revenue, Herbert I. Burson, Jr., Asst. Atty. Gen., and Asst. Counsel, Dept. of Revenue, for petitioners.
Calvin Poole, Greenville, for respondent.
HEFLIN, Chief Justice.
This case is before this Court for review on writ of certiorari to the Court of Civil Appeals, 47 Ala.App. 3, 249 So. 2d 617.
*623 The review question presented by the State of Alabama for consideration is whether the decision of the Court of Civil Appeals is in conflict with what this Court stated in State v. Golden, 283 Ala. 706, 220 So. 2d 893.
Following an assessment by the Board of Equalization of Butler County, Taxpayer Crenshaw took an appeal to the Circuit Court of Butler County, Alabama, on July 18, 1969, without filing a supersedeas bond. He paid the general ad valorem taxes on October 15, 1969 (the date of the trial) before said taxes became delinquent. The state filed a motion asking the trial court to dismiss the appeal, alleging that Taxpayer Crenshaw failed to pay his taxes when he took the appeal on July 18, 1969. The trial court denied said motion. After an unfavorable jury verdict, the state appealed to the Court of Civil Appeals.
In State v. Golden, supra, the state appealed from certain rulings of the Circuit Court of St. Clair County, Alabama, which refused to grant the state's motion to dismiss the appeal of the Taxpayer Golden from a final assessment of general ad valorem taxes for the tax year by the county board of equalization. In Golden, the taxes paid on December 6, 1965, the date of the trial, were based on the controverted 1965 assessment of the figure of $2,400, rather than the assessment for the preceding year 1964, of $3,200.
The principal question with which this Court concerned itself in Golden was whether the taxes to be paid by one appealing under Section 110, Title 51, Code of Alabama 1940, in lieu of a supersedeas bond, would be based on the valuation for the year in controversy or on the valuation for the preceding year. This Court, as then constituted, correctly held that one appealing under the provisions of Section 110, supra, must follow the language of the statute and pay taxes on the valuation placed on the property for the preceding year. The taxes due and payable under the provisions of Section 110, supra, should have been based upon the $3200 valuation for the tax year of 1964 and not on the $2400 valuation placed on the property for the tax year of 1965. This was the crux of the holding in Golden.
However, there is language in Golden directed to the time at which the applicable tax must be paid under Section 110, supra. That language is as follows:
In reviewing Section 110, supra, the pertinent language pertaining to the time when taxes must be paid, if a supersedeas bond is not filed, is as follows:
Section 23, Title 51, Code of Alabama 1940, provides that ad valorem taxes are due and payable on the first day of October in each year and become delinquent if not paid before the first day of January of the following year.
In Golden, no treatment or mention was made of the language "* * * before the same becomes delinquent * * *" nor of the word "due." However, the above-quoted portion from Golden states that the taxes should be paid "when an appeal is taken."
*624 Section 107, Title 51, Code of Alabama 1940, provides that the board of equalization of a county shall not extend its sitting beyond the second Monday in July, unless otherwise ordered by the Department of Revenue, to dispose of cases where valuations have been questioned. Section 110, supra, provides that appeals from the rulings of a county board of equalization shall be taken within thirty (30) days after the final decision of said board. This means that in the ordinary course of events an appeal would be taken before the due date for the payment of taxes (October first).
A construction that the words "* * * before the same becomes delinquent * * *" are superfluous and meaningless is contrary to the clear intent of the statute when viewed in connection with the sequence of events pertaining to the time when an appeal must be taken, the time that taxes are due, and the time when taxes are delinquent.
In the construction of statutes, every word, every phrase, and every sentence must be construed together to make a composite holding; and all related statutes must be construed in pari materia. Smith v. Smith, 266 Ala. 118, 94 So. 2d 863; May v. Head, 210 Ala. 112, 96 So. 869.
Assuming, but not conceding, that the phrase in the above-quoted portion of said Section 110 "* * *. When an appeal is taken the taxpayer shall pay the taxes * * *" can be construed to mean that the payment of taxes is a condition precedent to a taxpayer taking an appeal, this said Section 110 also contains language which is clearly in conflict with such a construction for it is stated therein as follows: "* * * the taxpayer shall pay the taxes due as fixed for assessment for the preceding tax year before the same becomes delinquent, * * *"
It is settled that if two provisions of a tax statute are in conflict, the legislative intent must be found, if possible, from the whole act, considering its history, nature, purpose, etc., having in mind that such statutes are construed in favor of the taxpayer. But if the conflict is irreconcilable and the statute cannot be determined by other rules, then the statutory rule as to the last legislative expression will control. State v. Burchfield Bros., 211 Ala. 30, 99 So. 198. Where two sections or provisions of an act are conflicting (as in the instant case), the last in order of arrangement controls. Davis v. State, ex rel. Cherokee County Board of Equalization, 16 Ala. App. 397, 78 So. 313; Wilkins v. Woolf, 281 Ala. 693, 208 So. 2d 74.
Construing Section 110, supra, according to the above-established rules of construction, this Court concludes that where no supersedeas bond is filed, the payment of taxes by the appealing taxpayer, ordinarily, is a condition subsequent, not a condition precedent, which must be satisfied "* * * before the same becomes delinquent * * *." In the case under review, the Taxpayer Crenshaw, appealing under the provisions of Section 110, supra, had the right to pay the taxes at any time before January 1, 1970.
This Court re-affirms what was said in Golden as to the requirement that, on an appeal on assessment under the provisions of Section 110, supra, the taxpayer (if no supersedeas bond is filed) shall pay the taxes due as fixed for assessment for the preceding tax year. To the extent that Golden requires (in the absence of a supersedeas bond) that such taxes must be paid as a condition precedent to the taking of an appeal under the provisions of Section 110, supra, when the appeal is taken prior to the delinquent date for the payment of taxes, it is expressly overruled.
The judgment of the Court of Civil Appeals is due to be affirmed. It is so ordered.
Affirmed.
LAWSON, SIMPSON, MERRILL, COLEMAN, HARWOOD, BLOODWORTH, and McCALL, JJ., concur. | June 10, 1971 |
881b2733-4097-42da-a1b3-2de97babfb51 | Ex parte Dalton Teal. | N/A | 1180877 | Alabama | Alabama Supreme Court | Rel: April 9, 2021
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, 2020-2021
____________________
1180877
____________________
Ex parte Dalton Teal
PETITION FOR WRIT OF MANDAMUS
(In re: Paul Thomas
v.
Black Mark 2, LLC, d/b/a Black Market Bar & Grill; Dalton Lee
Teal; George Cowgill; and Elise Yarbrough)
(Jefferson Circuit Court, CV-13-45 and CV-13-902154)
PER CURIAM.
1180877
Dalton Teal, a defendant in a personal-injury action pending below,
petitions this Court for a writ of mandamus directing the Jefferson Circuit
Court to vacate its partial summary judgment in favor of the plaintiff,
Paul Thomas, pursuant to which it struck Teal's affirmative defenses of
self-defense and statutory immunity. We grant the petition and issue the
writ.
Facts
In the late evening of December 31, 2012, and into the early morning
of January 1, 2013, Thomas, accompanied by his friend Brian Pallante,1
was present at Black Market Bar & Grill ("Black Market"), a bar in
Birmingham. On that occasion, an altercation arose between Pallante and
Teal on the Black Market premises. As recounted by Teal in subsequent
deposition testimony, during that altercation, Pallante, who is physically
larger than Teal, first "shoved [Teal] down" in the outside smoking area
1Pallante, who apparently changed his last name subsequent to the
events underlying this action, is also referred to in the materials before
this Court as "Brian Felton," his prior name. To remain consistent with
our opinion in a prior appellate proceeding in this case, see Ex parte
Cowgill, 301 So. 3d 116 (Ala. 2020), we refer to him in this opinion as
"Pallante."
2
1180877
of the bar and then, approximately one minute later, "lifted [Teal] up" by
the neck, "slammed" Teal against an interior wall of the bar, and
proceeded to "chok[e]" Teal for approximately 20 to 30 seconds. According
to Teal, he feared for his personal safety during those events. The
altercation resulted in Pallante and Teal being separated by Black Market
staff; Pallante and Thomas then departed the premises via the front door,
and Teal left via the back door.
Following his exit, Teal waited on a nearby bench for friends who
had accompanied him. Within minutes of their exit from Black Market,
Pallante and Thomas again encountered Teal, who looked up from his
cellular telephone to see that both Pallante and Thomas "were coming at
[him]." At that time, Pallante allegedly initiated another confrontation.
As described by Teal, Pallante grabbed Teal by the neck, slammed Teal
over the back of the bench to the ground, and again began choking him.
Thomas's later testimony stated that the two men appeared to be "trying
to finish what had been started ... inside [Black Market]."
During that struggle, Pallante was described as being to the side of
Teal but with his upper body located over Teal. According to Teal,
3
1180877
Thomas, who Teal denied having previously seen at any point during the
events of that evening and who is also physically larger than Teal,2 "came
at [Teal] when [Pallante] did" and, according to Teal, remained "leaned
over" from the waist with his hands on his knees "right beside [Pallante]."
Thomas, who admittedly approached Pallante and Teal in a purported
attempt to separate them, also admitted that he remained within "arm's
length" -- or, as Teal estimated, "a couple of feet" from Teal's legs -- of the
struggling Teal and Pallante. Although acknowledging that Thomas
never spoke to or touched him, Teal testified that he "felt threatened just
by somebody else being there."
According to Teal, while Pallante was on top of him, his arms were
flailing and he was unable either to breathe or to speak. Thomas similarly
confirmed that Teal was on his back on the ground with Pallante above
him and that Pallante was obviously "getting the better of" Teal in the
struggle. Teal testified that, as Pallante continued to choke him, he again
2The materials before this Court suggest that Teal is approximately
5'3" tall and weighs 150 pounds, that Thomas is approximately 6'2" tall
and weighs 240 pounds, and that Pallante is approximately 5'10" tall and
weighs 200 pounds.
4
1180877
feared for his life. He indicated that, after having been choked for
approximately 15 to 20 seconds, he realized that he was not going to be
able to get up and became "afraid that they were going to kill [him]." At
that point, Teal drew a pistol and fired a single shot in an effort "to get
them off of [him]." Teal, who indicated that his ability to aim his weapon
was affected by the fact that Pallante had "[Teal's] arm pinned down,"
missed Pallante, at whom Teal was apparently aiming, but the shot struck
Thomas in the abdomen, seriously injuring him.
Thomas's testimony confirmed that he was standing near Pallante
when he was shot; however, Thomas was unable to recall whether he was
actually moving toward Pallante and Teal at that time. He estimated that
Pallante and Teal had been struggling for around 37 seconds at the time
Teal fired the shot.
Following an investigation of the above-described events by the
Birmingham Police Department, the Jefferson County District Attorney
declined to bring criminal charges against Teal based on the conclusion
that Pallante's actions had "led to the shooting that injured [Thomas]."
Procedural History
5
1180877
Thomas filed a personal-injury action against Teal and other
defendants. As to Teal, Thomas's complaint alleged claims seeking to
recover damages for assault and battery, negligence, and wantonness. In
his answer, Teal pleaded various affirmative defenses, including self-
defense and the related defense of statutory immunity provided in § 13A-
3-23, Ala. Code 1975.
Following pretrial discovery, Thomas filed a motion "to dismiss"
several of the affirmative defenses included in Teal's answer, including
those premised on a theory of self-defense.3 Specifically, as to Teal's claim
of self-defense, Thomas asserted:
3Because the motion sought a dispositive ruling on the basis of
evidence outside the pleadings, we construe it as a motion seeking the
entry of a partial summary judgment. Rule 56(a), Ala. R. Civ. P. ("A party
seeking to recover upon a claim ... may ... move ... for a summary
judgment in the party's favor upon all or any part thereof." (emphasis
added)). See also 5C Charles Alan Wright, Arthur R. Miller & A.
Benjamin Spencer, Federal Practice and Procedure § 1381 (3d ed. 2004 &
2020 Supp.) ("Some difficulty is encountered in dealing with those
defenses that are sufficient as a matter of pleading, but are not supported
by the facts. ... The appropriate remedy appears to be a motion for a
partial summary judgment under Rule 56(a), which will enable the [trial]
court to enter an order indicating that the defense no longer is in
controversy.").
6
1180877
"Any claim that Teal acted in self-defense or is afforded
immunity from criminal or civil liability for the injuries and
damages he inflicted on Thomas is erroneous. Teal has no
justifications or excuses of self-defense or collateral defenses
claimed with reference to Thomas because there is no defense
for injuring an innocent victim."
In response, Teal argued that, because the evidence supported a
reasonable inference that Thomas was also "coming at [Teal]" with
Pallante and was present for and involved in the physical altercation
between Teal and Pallante, both Thomas's involvement in that altercation
and Teal's entitlement to the defenses of self-defense and statutory
immunity were questions to be resolved by the trier of fact.
The trial court entered a lengthy order "striking" certain of Teal's
defenses, including those dependent on Teal's assertion that he had acted
in self-defense, which were, specifically, his 6th and 13th affirmative
defenses. As a result, Teal filed the instant mandamus petition; this
Court subsequently ordered answers and briefs.
Standard of Review
"This Court has stated:
"'Mandamus is an extraordinary remedy and
will be granted only where there is "(1) a clear legal
7
1180877
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 Ocwen Fed. Bank, FSB, 872 So. 2d 810, 813 (Ala.
2003) (quoting Ex parte Alfab, Inc., 586 So. 2d 889, 891
(Ala.1991)). A trial court's disallowance of a party's
affirmative defense is reviewable by a petition for a writ of
mandamus. See Ex parte Neely Truck Line, Inc., 588 So. 2d
484 (Ala. Civ. App. 1991)."
Ex parte Buffalo Rock Co., 941 So. 2d 273, 277 (Ala. 2006). Because the
disallowance of Teal's affirmative defenses was by a partial summary
judgment, see note 3, supra, we review the trial court's judgment de novo:
"'"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
8
1180877
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)."'
"Prince v. Poole, 935 So. 2d 431, 442 (Ala. 2006) (quoting Dow
v. Alabama Democratic Party, 897 So. 2d 1035, 1038-39 (Ala.
2004))."
Brown v. W.P. Media, Inc., 17 So. 3d 1167, 1169 (Ala. 2009).
Discussion
In his petition, Teal argues that he presented substantial evidence
indicating that he acted in legally justified self-defense, as defined by §
13A-3-23, and that he was entitled to have a jury, rather than the trial
court on a motion for a partial summary judgment, determine the issue.
Teal further contends, based on his purported showing of self-defense,
that he is also entitled to have the jury determine whether he is
statutorily immune from the civil judgment Thomas seeks. As to both
arguments, we agree.
9
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Section 13A-3-23(a) provides, in pertinent part:
"(a) A person is justified in using physical force upon
another person in order to defend himself or herself or a third
person from what he or she reasonably believes to be the use
or imminent use of unlawful physical force by that other
person, and he or she may use a degree of force which he or
she reasonably believes to be necessary for the purpose. A
person may use deadly physical force, and is legally presumed
to be justified in using deadly physical force in self-defense ...
if the person reasonably believes that another person is:
"(1) Using or about to use unlawful deadly
physical force."
(Emphasis added.) Further, § 13A-3-23(d)(1) provides: "A person who
uses force, including deadly physical force, as justified and permitted in
this section is immune from criminal prosecution and civil action for the
use of such force, unless the force was determined to be unlawful."4
(Emphasis added.) According to the plain text of this provision, a person
is immune from civil action only if that person uses force "as justified and
permitted in" § 13A-3-23. Thus, an individual may use deadly physical
force on "another person" in self-defense, but, under § 13A-3-23(a)(1), that
4Before an amendment to § 13A-3-23 effective August 1, 2016, which
added what are now subdivisions (d)(2)-(d)(4), what is now § 13A-3-
23(d)(1) was § 13A-3-23(d).
10
1180877
other person must be one who the individual claiming to act in self
defense "reasonably believes" is using, or is "about to use," unlawful
deadly physical force.
The trial court rejected Teal's reliance on § 13A-3-23(a) and (d)(1).
Citing the definitions of "deadly physical force" and "physical injury"
provided by the legislature in §13A-1-2, Ala. Code 1975, the trial court
explained as follows:
"Whether [Pallante] was choking Teal or not, [Pallante]
was causing physical injury to Teal, and it was most certainly
reasonable for Teal to believe he was in further danger, i.e.,
imminent danger, that [Pallante] would choke him to death.
Therefore, under § 13A-3-23(a)(1) as a matter of law, Teal was
justified in using whatever force against [Pallante] he
reasonably believed necessary to defend himself.
"However, Teal argues § 13A-3-23(d)(1) affords him
immunity in this action brought by Thomas, even though Teal
admitted under oath Thomas did not touch Teal in any way,
[and] that no part of their bodies made contact. ... But it must
be considered that § 13A-3-23(a) clearly refers to the
'imminent use' of physical force, which under any reasonable
definition would include force displayed without making
physical contact, [for example,] pointing a loaded gun at
someone or telling someone that you are about [to] harm them.
However, also under § 13A-3-23(a), Teal must have a
reasonable belief he was under a threat of imminent unlawful
force from Thomas that could cause him physical injury,
possibly serious physical injury.
11
1180877
"Teal's own testimony establishes undisputed significant
material facts sufficient to establish that, as a matter of law,
he had no reason to fear that Thomas was imminently about
to cause him physical injury. Teal testified he felt threatened
by [Pallante] and Thomas, but could not articulate why he felt
Thomas specifically threatened him, only that Thomas was
present when [Pallante] attacked Teal. ... Neither Thomas nor
Teal said anything to each other, so Thomas did not verbally
threaten harm to Teal. ... Also, while not an exhibit to
Thomas's [motion to strike Teal's defenses] or Teal's response,
the record of this action contains the handwritten note of the
City of Birmingham Police Officer who interviewed [an
eyewitness], who was present during the altercation outside of
... Black Market..., and the Court considers it. The note reads
in part, '[Pallante] is wrestling ... with ... Teal ... telling/asking
him something about disrespecting him. [Thomas] was
standing over [Pallante].'
"This is undisputed testimony that while [Pallante] held
Teal to the ground with at least one hand around Teal's neck
for a brief amount of time, Thomas stood still, leaning over
[Pallante]. ... Given all of this, the Court determines any belief
Teal had that Thomas was about to harm him was
unreasonable. Thus, the deadly force Teal used against
Thomas was neither justified nor excused and was unlawful.
Therefore, the immunity afforded under § 13A-3-23(d)(1) is
unavailable to Teal in this lawsuit."
(Footnotes and capitalization omitted.)
Relying on the foregoing findings, the trial court further concluded
that Teal's allegedly unreasonable belief as to the potential of imminent
harm from Thomas "essentially makes Thomas 'another person' as used
12
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in § 13A-3-21(b), [Ala. Code 1975]." That Code section states: "If a person
is justified or excused in using force against a person, but he recklessly or
negligently injures or creates a substantial injury to another person, the
justifications afforded by this article [i.e., Title 13A, Chapter 3, Article 2]
are unavailable in a prosecution for such recklessness or negligence."
Relying on its finding that, based on the established lack of physical
contact between Thomas and Teal, Teal's evidence failed to establish the
necessary "imminent fear of Thomas using physical force upon [Teal]," the
trial court struck Teal's affirmative defenses relying on self-defense
principles and § 13A-3-23. We disagree with the trial court's reasoning.
In his motion to strike, which, as noted above, we consider a motion
for a partial summary judgment, Thomas argued that Teal is unable to
demonstrate any basis for a reasonable belief that Thomas was about to
cause Teal harm at the time of the shooting. Specifically, Thomas argued
that, while Pallante was actually employing force against Teal, Thomas
remained a mere innocent bystander. In support of his motion, Thomas
relied upon, among other things, evidence of his alleged distance from
Teal at the time of Teal's final altercation with Pallante as well as
13
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testimony indicating that Thomas neither spoke to, nor threatened, nor
physically touched Teal before being shot. That evidence in support of
Thomas's motion shifted the burden to Teal to present substantial
evidence establishing that Teal reasonably believed that, at the time he
employed deadly physical force against Thomas, he was being or was
about to be subjected to unlawful deadly physical force by Thomas. See
Brown, supra.
In his petition, Teal argues that his testimony presented to the trial
court clearly indicated that he felt sufficiently threatened by Thomas's
approach and remaining presence during the final physical altercation
between Teal and Pallante to justify his use of deadly physical force, thus
creating a genuine issue of material fact. In response to Thomas's motion,
Teal cited the obvious size difference between himself and the more
physically imposing Thomas and Pallante. See note 2, supra. Teal
further pointed to the fact that, as acknowledged by Thomas, he struggled
to defend himself against Pallante during the physical altercation and the
fact that he was unable to speak while being choked by Pallante. Further,
the evidence established that, at the time Teal fired the shot, Thomas
14
1180877
remained within arm's length of the ongoing physical altercation between
Teal and Pallante, leaning over Teal. Teal testified that, based on the
foregoing circumstances, he believed that Thomas was joining or intended
to join in Pallante's physical assault. Also according to Teal, during his
struggle with Pallante, he "felt threatened" by Thomas's undisputed
proximity and feared "they were going to kill [him]." That testimony
constitutes substantial evidence indicating that Teal could have
reasonably believed that his use of force was "justified" under § 13A-3-
23(a)(1).
To demonstrate that § 13A-3-23(a)(1) is applicable and to defeat
Thomas's properly supported motion for a partial summary judgment,
Teal was required to produce substantial evidence indicating that he
reasonably believed that Thomas was using, or was about to use, unlawful
deadly physical force. Viewing the evidence in the light most favorable to
Teal, which our standard of review of a summary judgment requires, see
Brown, supra, we hold that a fair-minded person could reasonably infer
from Teal's evidence that Teal believed that Thomas was joining -- or was
about to join -- Pallante's attack on Teal and was about to use the same
15
1180877
level of physical force against Teal that Pallante was using.5 In other
words, a fair-minded person could reasonably infer that Thomas was
"about to use unlawful deadly physical force" against Teal as defined in §
13A-3-23(a)(1). In reaching the opposite conclusion, the trial court did not
review the evidence in the light most favorable to Teal. The trial court
thus erred in holding that Thomas was entitled to a judgment as a matter
of law on Teal's self-defense claim under § 13A-3-23(a)(1), that, pursuant
to § 13A-3-21(b), a claim of self-defense was not available to Teal, and that
Teal could not assert a claim of immunity under § 13A-3-23(d)(1). Instead,
because genuine issues of material fact exist regarding these issues, they
are for the trier of fact to resolve.
In his response to this petition, Thomas argues that Teal cannot
claim that he was acting in self-defense against Thomas because Teal
testified in a deposition that he was attempting to shoot Pallante.
However, Teal also testified as follows:
5The parties present no argument or dispute that holding a person
down and choking him of her to the point that he or she cannot breathe
does not constitute the use of deadly physical force.
16
1180877
"[Counsel:] At the time that you fired, were you trying to shoot
[Pallante]?
"[Teal:] I was just trying to get him off of me. I was afraid they
were going to kill me. So I was just trying to get them off of
me. I wasn't aiming to kill anybody. I was just trying to save
my own life."
(Emphasis added.)
The entirety of Teal's testimony indicated that he feared both
Pallante and Thomas, that he possessed limited ability to aim and
maneuver, and that he fired his weapon in the general upward direction
of both men with the goal of "get[ting] them off of [him]," i.e., to stop the
use of deadly physical force against him. Further, there is substantial
evidence indicating that Teal reasonably believed that Thomas was about
to use, or to join Pallante in the use of, unlawful deadly physical force. In
light of these facts, we see nothing indicating that Teal's testimony
requires a judgment as a matter of law in Thomas's favor or that §
13A-3-23(a) denies an individual the right to claim self-defense when an
attempt to use force against an attacker injures an alleged co-attacker.
In a related argument, Thomas cites Lacy v. State, 629 So. 2d 688,
689 (Ala. Crim. App. 1993), for the proposition that "a claim of self-defense
17
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necessarily serves as an admission that one's conduct was intentional. ...
A person simply cannot negligently or recklessly defend himself." In that
case, the court held that a claim of self-defense was inapplicable to
charges of reckless manslaughter and criminally negligent homicide. Id.
In this case, Teal's testimony indicates that he acted intentionally. At
best, whether Teal actually acted negligently or recklessly is a disputed
issue of fact. Therefore, we see no merit in this argument.
Conclusion
Based on the foregoing, we hold that Teal presented substantial
evidence demonstrating the existence of genuine issues of material fact
regarding whether he was entitled to assert the affirmative defense of
self-defense to Thomas's tort claims and whether he was entitled to
statutory immunity under § 13A-3-23(d)(1).6 Therefore, the trial court
erred in entering a partial summary judgment striking Teal's affirmative
defenses premised on a theory of self-defense. Accordingly, Teal has
6We express no opinion on the potential merit of Teal's affirmative
defenses premised on a theory of self defense; instead, we simply hold that
Teal is entitled, under the present facts, to present those defenses to the
jury for consideration.
18
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demonstrated a clear legal right to the relief he has requested. We
therefore grant Teal's petition and issue a writ of mandamus directing the
trial court to vacate its "Order on Motion to Dismiss Affirmative Defenses"
to the extent that it struck the 6th and 13th affirmative defenses alleged
in his answer.7
PETITION GRANTED; WRIT ISSUED.
Bolin, Shaw, Wise, Bryan, Sellers, Mendheim, Stewart, and Mitchell,
JJ., concur.
Parker, C.J., concurs specially.
7In the partial summary judgment as to which Teal seeks mandamus
review, the trial court also struck other affirmative defenses alleged in
Teal's answer, including the defenses of contributory negligence,
assumption of the risk, and sudden emergency; however, Teal does not
challenge the striking of those other defenses in his petition.
19
1180877
PARKER, Chief Justice (concurring specially).
I agree with the main opinion, but I write to address the additional
problem of the circuit court's erroneous interpretation of the statutes
relating to self-defense. The circuit court ruled that, if a person uses force
in justified self-defense and accidentally injures a bystander, the statutes
do not protect the person from a civil claim by the bystander. Under the
language of the statutes, the opposite is true.
The self-defense statute provides:
"(a) A person is justified in using physical force upon
another person in order to defend himself or herself or a third
person from what he or she reasonably believes to be the use
or imminent use of unlawful physical force by that other
person, and he or she may use a degree of force which he or
she reasonably believes to be necessary for the purpose. ...
"....
"(d)(1) A person who uses force, including deadly physical
force, as justified and permitted in this section is immune from
criminal prosecution and civil action for the use of such force,
unless the force was determined to be unlawful."
§ 13A-3-23, Ala. Code 1975 (emphasis added). With that language,
subsection (a) first recognizes a justification: a person is justified in "using
physical force upon another person" in self-defense or defense of another
20
1180877
against what the first person reasonably believes to be "the use or
imminent use of unlawful physical force by that other person." Subdivision
(d)(1) then defines the set of legal actions to which the resulting immunity
applies: if a person "uses force ... as justified and permitted in" subsection
(a), the person "is immune from criminal prosecution and civil action for
the use of such force."
Importantly, although subsection (a) limits the underlying
justification to a person's use of force against a perceived attacker,
subdivision (d)(1) does not limit the resulting immunity to applying only
to legal claims by the attacker. In particular, the immunity is not limited
by subsection (a)'s references to "upon another person" and "by that other
person." Rather, those phrases specify the circumstances in which use of
force is justified -- the type of factual scenario that qualifies a person for
the immunity. Those phrases do not define the category of legal claims to
which the immunity applies; that is the role of subdivision (d)(1). And
subdivision (d)(1) makes self-defense immunity applicable to all claims
21
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that are "for the use of such [justified] force," which necessarily includes
claims by bystanders who are injured by that force.8
Further, the circuit court incorrectly relied on a provision in another
section, regarding injuries to bystanders:
"Danger to innocent persons. If a person is justified or excused
in using force against a person, but he recklessly or negligently
injures or creates a substantial injury to another person, the
justifications afforded by this article [including self-defense]
are unavailable in a prosecution for such recklessness or
negligence."
8Florida's
self-defense
statute
(before
amendments)
was
substantially similar to Alabama's, and commentators have interpreted
that Florida statute as applying to civil claims by bystanders. See Fla.
Stat. § 776.032(1) (2005) ("A person who uses force as permitted in
[Florida statutes regarding self-defense, defense of others, and defense of
property] is justified in using such force and is immune from criminal
prosecution and civil action for the use of such force ...."); Hunter G.
Cavell, Reasonable Belief: A Call to Clarify Florida's Stand Your Ground
Laws, 50 Crim. L. Bull., Issue No. 1, art. 6 (2014) ("[A] person who
reasonably believes he or she is in danger of imminent death or severe
bodily harm is not concerned with the possibility of a civil suit ..., but
merely survival. Under this logic, if a person fires a gun and hits an
innocent bystander, the bystander is barred from suing the defendant
under [Florida's self-defense statute]."); Zachary L. Weaver, Florida's
"Stand Your Ground" Law: The Actual Effects and the Need for
Clarification, 63 U. Miami L. Rev. 395, 416 (2008) ("[I]f a person using
deadly force is protected by [Florida's self-defense statute], then ...
innocent bystanders who become victims are prohibited from filing civil
suits ....").
22
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§ 13A-3-21(b) (emphasis added). That bystander provision functions as an
exception to the above-discussed immunity provided by § 13A-3-23(d)(1).
However, the bystander provision's use of the word "prosecution" limits
the exception to criminal cases.
It is true that "prosecution" can sometimes refer to the process of
civil litigation. See Black's Law Dictionary 1385 (rev. 4th ed. 1968) and
countless cases referring to a plaintiff's "lack (or want) of prosecution" of
a civil case. But the meaning of a statutory word is necessarily
determined from its context, including its usage in surrounding statutes.
See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 170 (Thomson/West 2012) ("A word or phrase is presumed
to bear the same meaning throughout a text ...."); 2A Norman J. Singer
& Shambie Singer, Statutes and Statutory Construction § 46:6 (7th ed.
2014) ("Identical words used in different parts of the same, or a similar,
statute usually have the same meaning."); Startley Gen. Contractors, Inc.
v. Water Works Bd. of Birmingham, 294 So. 3d 742, 753-55 (Ala. 2019)
(plurality
opinion)
(illustrating
application
of
this
principle).
"Prosecution" is used nine other times in Chapter 3 of the Criminal Code
23
1180877
("Defenses"). In every instance, it clearly refers to criminal prosecution.
See §§ 13A-3-1(a) ("prosecution for any crime"), -2(b) ("prosecution for that
offense"), (c) ("Involuntary intoxication is a defense to prosecution if as a
result the actor lacks capacity ... to appreciate the criminality of his
conduct ...."), -3 ("prosecution of any person as an adult"), -23(d)(1)
("criminal prosecution"), (2) ("criminal prosecution"), (3) ("criminal
prosecution"), -30(a) ("It is a defense to prosecution that the actor engaged
in the proscribed conduct ...."), (d) ("prosecution for ... murder ... or ... any
killing of another under aggravated circumstances"). Most notably,
"prosecution" is used to mean criminal prosecution in subdivision (d)(1)
itself. As previously noted, subdivision (d)(1) declares that a person who
acts in self-defense "is immune from criminal prosecution and civil action."
§ 13A-3-23(d)(1) (emphasis added). Different terms within a statute are
presumed to mean different things. See Trott v. Brinks, Inc., 972 So. 2d
81, 85 (Ala. 2007). By using separate terms for criminal and civil
proceedings, subdivision (d)(1) makes clear that "prosecution" refers only
to criminal proceedings. And because the bystander provision functions
24
1180877
as an exception to subdivision (d)(1), it is only logical that "prosecution"
have the same meaning in both.9
This meaning of "prosecution" in the bystander provision is further
confirmed by the fact that the provision is patterned after Model Penal
Code § 3.09(3):
"When the actor is justified under Sections 3.03 to 3.08
[(providing various defenses)] in using force upon or toward
the person of another but he recklessly or negligently injures
or creates a risk of injury to innocent persons, the justification
afforded by those Sections is unavailable in a prosecution for
such recklessness or negligence towards innocent persons."
9Of course, when the Legislature enacted subdivision (d)(1) to grant
both criminal and civil immunity, the Legislature could have amended the
bystander provision (enacted about 30 years earlier) to except from that
immunity civil claims by bystanders. But the Legislature did not, and
courts ought not read into a statute words that are not there, see Ex parte
Smiths Water & Sewer Auth., 982 So. 2d 484, 488 (Ala. 2007) ("[W]e
presume that a difference in wording, especially in provisions within
similar statutes, reflects a difference in meaning. ... '[W]here there is a
"material alteration in the language used in the different clauses, it is to
be inferred" that the alterations were not inadvertent.' " (quoting House
v. Cullman Cnty., 593 So. 2d 69, 75 (Ala. 1992), quoting in turn Lehman,
Durr & Co. v. Robinson, 59 Ala. 219, 235 (1877))); Scalia & Garner, supra,
at 93-100; Singer & Singer, supra, §§ 46:6, 51:2.
25
1180877
Model Penal Code § 3.09(3) (Am. Law. Inst. 1962) (emphasis added). The
Explanatory Note to § 3.09 indicates that "prosecution" means a criminal
proceeding: "Subsection (3) states that the existence of justification for the
use of force against a person under Sections 3.03 to 3.08 does not preclude
liability for offenses of recklessness or negligence against innocent third
parties." I Model Penal Code and Commentaries 147 (Am. Law Inst. 1985)
(emphasis added).
Accordingly, the bystander provision's use of "prosecution" limits its
exception to criminal cases, and the circuit court erred in ruling that the
provision carves out bystanders' civil claims from the self-defense
immunity provided by subdivision (d)(1).
The main opinion does not cast any doubt on this interpretation of
the statutes relating to self-defense, because the opinion resolves the case
on the alternative basis that there was evidence that Paul Thomas was
not a bystander and that Dalton Teal intended to shoot him. Yet I have
taken this opportunity to clarify the application of the statutes, in the
hope that trial courts will avoid the errors committed by the circuit court
in this case.
26 | April 9, 2021 |
dfab4a99-eb56-46e3-a788-e790316190a7 | Fegaro v. South Central Bell | 252 So. 2d 66 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 66 (1971)
Ervin M. FEGARO
v.
SOUTH CENTRAL BELL, a Corp., et al.
6 Div. 784.
Supreme Court of Alabama.
June 3, 1971.
*67 David J. Vann, Birmingham, for appellant.
Robert McD. Smith, Lawrence B. Clark and James F. Trucks, Jr., Birmingham, for appellee, South Central Bell, a Corporation.
McCALL, Justice.
This is an appeal by the respondent, Ervin M. Fegaro, from a final decree in a declaratory judgment proceeding which the complainant, South Central Bell Telephone Company, a corporation, (South Central) filed against the respondents, William E. Baker and Comet T.V. Inc., a Kentucky corporation, in which Baker is principally interested, and, against the corespondents, Ervin M. Fegaro and Comet T.V. Rentals, Inc., an Alabama corporation, in which Fegaro is the principal executive officer. Hereafter, we will call each of them "respondent." None of the respondents other than Fegaro has appealed.
The appellant Fegaro's first assignment of error is that the court erred in entering an order or decree overruling and denying a plea in abatement filed jointly by him and Comet T.V. Rentals, Inc.[1] The basis for the plea in abatement *68 is that all of the issues, sought to be resolved in the present case, can be and should be resolved in an already pending civil action before the United States District Court, wherein all of the parties, or those in privity, are said to be the same as the parties in this case.
The United States court case was filed by Comet T.V. Inc. against South Central, Fegaro and L. M. Berry and Company, a corporation, on the theory that the defendants had conspired wrongfully to injure the business of Comet T.V. Inc., by depriving it of the use of its trade name "Comet T.V. Rentals" and of the telephone number listed under that trade name in the yellow pages of the telephone directory, by transferring the number and trade name listing to Fegaro. Neither William E. Baker or Comet T.V. Rentals Inc. was made a party to the federal case, brought by Comet T.V. Inc., a corporation, nor is L. M. Berry and Company a party to the case at bar.
This court has held that in the State of Alabama the pendency of a suit in a federal court, with jurisdiction of the subject matter and of the parties, involving the same cause of action, may be pleaded in abatement of another suit in a court of this State between the same parties and involving the same cause of action. Watson v. Mobile & O. R. Co., 233 Ala. 690, 692, 173 So. 43; Orman v. Lane, 130 Ala. 305, 30 So. 441; Interstate Chemical Corporation v. Home Guano Co., 199 Ala. 583, 75 So. 166; Hudson and Thompson v. First Farmers and Merchants National Bank of Troy, 265 Ala. 557, 93 So. 2d 415. With respect to a declaratory judgment proceeding, the rule which prevails generally is that jurisdiction will not be entertained, if there is pending, at the time of the declaratory action, another action or proceeding to which the same persons are parties and in which are involved, and may be adjudicated, the same identical issues that are involved in the declaratory action. Foreman v. Smith, 272 Ala. 624, 133 So. 2d 497. In such a situation, the deciding issue seems to be that the plea in abatement is not available, unless the judgment, that could be rendered in the prior action, would be conclusive between the parties of all the issues raised by the second action. The reason for sustaining such a plea is that the later action is deemed to be unnecessary and vexatious. Foster v. Napier, 73 Ala. 595, 604; Ex parte Gurganus, 251 Ala. 361, 37 So. 2d 591; Priest v. Chenault, 239 Ala. 209, 194 So. 651; Milbra v. Sloss-Sheffield Steel & Iron Co., 182 Ala. 622, 62 So. 176, 46 L.R.A.,N.S., 274; Williams v. Gaston, 148 Ala. 214, 42 So. 552; Hudson and Thompson v. First Farmers and Merchants National Bank, supra.
The appellant Fegaro argues that while all of the same parties are not present in each case, they or those in privity with them, are so present, and that all are represented in the material issue of which of the two customers, the appellant Ervin M. Fegaro, on the one hand, or Comet T.V. Inc. and its President, William E. Baker, on the other, is entitled to have a telephone listing under the trade name, "Comet T.V. Rentals," in South Central's Birmingham area telephone directory for June 1, 1970, and to the telephone number 252-8562.
It appears to us that neither are the issues in the federal case identical with or the same as those in the state case, nor are the parties in the two cases the same. While arriving at a decision in the federal case, as to whether or not the defendants were guilty of a civil conspiracy to injure Comet T.V. Inc. in its business, by depriving it of the use of its trade name, "Comet T.V. Rentals," may involve the question of Comet T.V. Inc.'s right to that trade name, any judgment rendered will not conclude the contested issue in the state case of whether or not South Central has the right to list them under each respondent's individual or corporate name, or, in the alternative, the right to refuse to list any or all of the *69 respondents in the 1970 Birmingham telephone directory. Further, such judgment will not conclude the issue of whether or not South Central has to assign in its 1970 telephone directory the particular telephone number 252-8562, to any of the respondents as is demanded of it by each respondent in the state case, or, has the right to deny the use of that number to each of the respondents and assign each of them a new telephone number. The relief which South Central prays for looks prospectively. Those are issues that are made in the state case which we do not find are made or will be concluded in the federal case.
Next, even if these issues, of who is entitled to have the trade name, Comet T.V. Rentals, and the assignment of the telephone number, are to be resolved, in the federal case, in favor of or against Comet T.V. Inc. or Fegaro, one or the other, that will not decide and conclude in the state case, Comet T.V. Rentals, Inc.'s alleged insistence and demand on South Central, nor the rights, if any, of the respondent William E. Baker. Comet T.V. Rentals, Inc., a corporation, though in existence when filed, is not a party to the federal case and cannot be bound by the judgment there simply because the appellant Fegaro, its principal executive officer and stockholder, is a party to the federal case. The bill of complaint here alleges like insistences and demands, made by the respondent William E. Baker, the person principally interested in Comet T.V. Inc., a corporation, but Baker was not a party to the federal case either. By the same token, he cannot be precluded by the federal case because of his personal relationship with that corporation. In the situation presented, we recognize the doctrine of corporate fiction existing between the corporation and the individual, primarily interested and controlling the corporate body. In Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Ala. 206, 210, 6 So. 41, 43, the court said:
Loper v. Gill, 282 Ala. 614, 213 So. 2d 674; Navco Hardware Co. v. Bass, 214 Ala. 553, 108 So. 452; Rudisill Soil Pipe Co. v. Eastham Soil Pipe & Foundry Co., 210 Ala. 145, 97 So. 219.
We are unable to agree with the appellant's contention that South Central should have sought ancillary relief in the federal case. We assume that appellant means by this that South Central should have cross-claimed in the federal action so as to have accomplished its objective. If this be the contention, then it appears that the case of Hathcock v. Mitchell, 277 Ala. 586, 594, 173 So. 2d 576, 583, would conflict with appellant's view, for there the court said:
The trial court did not err in its ruling which in effect holds appellant's plea in abatement insufficient.
*70 In support of his second and third assignments of error, the appellant argues that in granting affirmative relief to the respondents, Comet T.V. Inc. and William E. Baker, against him, the trial court erred because there was no cross-bill pending between those two respondents and the appellant, upon which such relief could be founded, and, granting relief was therefore beyond the scope of any pleading filed against appellant Fegaro.
We do not agree with the appellant's contention. In South Central's bill of complaint, as amended, the complainant avers that each of the respondents claims the right to the exclusive listing of Comet T.V. Rentals in the yellow pages of complainant's Birmingham telephone directory; and that each respondent also claims the right to the exclusive use of the telephone number 252-8562. After alleging these contentions of the respondents, the complainant avers that it has the right to deny the use of the telephone number to each of the respondents and to assign each a new number, and complainant also avers that it has the right to list each respondent under their individual or corporate name, or in the alternative to refuse to list any or all of them. Complainant prays that the court take jurisdiction of the cause and the controversies described in the bill and render a final decree declaring and adjudging the rights and obligations of the parties.
In their respective answers, each respondent presents these same matters that are incorporated in the bill and admits that the complainant has correctly alleged the contention of each, and they deny that the complainant has a right to deny them the right to use the telephone number and listing as Comet T.V. Rentals in the yellow pages.
In his cross-bill against South Central, Fegaro prays among other things that the court will enter an order directing the complainant to transfer the telephone number 252-8562 to him and enjoin South Central from accepting any listing or yellow page advertisements from respondents Baker or Comet T.V. Inc. or anyone else under the trade names Comet T.V. Rentals, Comet T.V. or any variation thereof.
After answering each paragraph of the amended bill, the respondents, Comet T.V. Inc. and Baker prayed as follows:
A general prayer for relief was also made by all of the respondents. The court decreed according to the issues presented by these contentions.
The pleadings, in our opinion present a justiciable controversy among the parties, and under the statutes, Tit. 7, § 156 et seq., Code of Alabama, 1940, as amended, providing for a declaratory judgment, are sufficient for the court to make a declaration of the rights, status, and other legal relations among all the parties as to the issues thus made, whether or not that declaration be affirmative or negative in form and effect, Tit. 7, § 156, Code of Alabama, 1940, as amended. The purpose of the Declaratory Judgment Act is that where the court has once acquired jurisdiction for one purpose, it will, under the issues raised by the pleadings, grant full, adequate and complete relief to determine all rights among all parties and *71 give full relief whether legal or equitable. Brantley v. Brantley, 251 Ala. 493, 38 So. 2d 8; Lavretta v. First National Bank of Mobile, 235 Ala. 104, 178 So. 3; White v. Manassa, 252 Ala. 396, 41 So. 2d 395.
We conclude that the court did not err in granting affirmative relief to the co-respondents Comet T.V. Inc. and Baker.
The final decree of the trial court is affirmed.
Affirmed.
SIMPSON, COLEMAN, BLOODWORTH and MADDOX, JJ., concur.
[1] The proper method of testing the sufficiency of a plea in equity is to have it set down for hearing and have the court make an order as to where it is sufficient or not, Rule 16, Alabama Equity Rules, Appendix to Tit. 7, Code of Alabama, 1940; Little v. Little, 249 Ala. 144, 146, 30 So. 2d 386. | June 3, 1971 |
13c44941-d29f-4e55-a630-2d93e482cb5d | Crenshaw v. Alabama Freight, Inc. | 252 So. 2d 33 | N/A | Alabama | Alabama Supreme Court | 252 So. 2d 33 (1971)
Samuel B. CRENSHAW
v.
ALABAMA FREIGHT, INC., a Corp.
6 Div. 581.
Supreme Court of Alabama.
May 6, 1971.
Rehearing Denied June 30, 1971.
Second Rehearing Denied September 9, 1971.
*34 George S. Brown, Birmingham, for appellant.
Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
COLEMAN, Justice.
The plaintiff appeals from a judgment for the plaintiff for $9,000.00 rendered in accord with the verdict of a jury in an action for the death of plaintiff's three minor children.
It appears that plaintiff and his wife lived in South Carolina during the early years of their married life. The wife obtained a divorce in South Carolina and was awarded custody of the children. She married J. B. Walters and they moved to Alabama taking the children with them.
Plaintiff continued to live in South Carolina. He remarried. There is evidence to effect that plaintiff contributed to support of the children at times and also that he failed so to contribute at times.
One morning the children were riding in an automobile driven by their mother on U. S. Highway 31 in Morgan County, Alabama. As the automobile was crossing a bridge, the car was struck by a tractor-trailer driven by an employee of defendant. The driver of the tractor-trailer and all people in the automobile were killed.
In Count 1 of his complaint, the plaintiff, father of his deceased minor daughter, Deborah, claims damages of defendant for that plaintiff's said daughter was a passenger in an automobile being driven along a public highway on a narrow bridge, and defendant, by its employee, so negligently operated a tractor-trailer unit as to attempt to pass said automobile on said bridge in a "No Passing" zone and negligently ran into the automobile in which plaintiff's daughter was riding and knocked said automobile through the side of the bridge, thereby causing the automobile to overturn and burst into flames, and, as a direct result thereof, plaintiff's daughter, Deborah, suffered fatal injuries and burns from which she died immediately. Count 2 likewise claims damages for death of plaintiff's daughter, Cindy, and Count 3 for the death of plaintiff's daughter, Cathy.
The court sustained plaintiff's demurrer to all of defendant's pleas except Pleas I and II. Plea I is the general issue. Plea II recites:
Plaintiff assigns as error the action of the court in overruling plaintiff's demurrer to Plea II. Plaintiff also assigns as error the action of the court in overruling plaintiff's objections to certain evidence offered by defendant in support of Plea II.
We consider first the overruling of plaintiff's demurrer to Plea II. The precise ground of demurrer relied on by plaintiff is not clearly pointed out in argument. Plaintiff relies on Proposition I which recites that: "The want of capacity of the plaintiff to bring the action can only be raised by a plea in abatement and such capacity is admitted by a plea to the merits."
Plaintiff says in brief that defendant, having filed Plea I, was in no position to raise the issue of plaintiff's capacity to bring the suit by filing Plea II.
Plaintiff's argument appears to be to effect that Plea II is a plea in abatement while Plea I is a plea in bar; and, therefore, defendant cannot defend on the allegations of Plea II because the defendant, by pleading in bar, waived the right to plead in abatement.
We quote from two opinions of this court as follows:
Plaintiff's contention comes to the proposition that defendant should not have been allowed to defend under Plea II because it is a plea in abatement filed simultaneously with a plea in bar. The jury, however, did not find for the defendant on either Plea I or Plea II, but returned a *36 verdict for the plaintiff for $9,000.00; and, in these circumstances, the plaintiff did not sustain any injury by the action of the court in overruling plaintiff's demurrer to Plea II. In Plea II, defendant asserts that "Plaintiff ought not to recover," but the jury found that plaintiff was entitled to recover.
Even if Plea II were a plea in abatement, overruling demurrer thereto is without injury to plaintiff according to the holding of this court in Holley v. Younge, 27 Ala. 203, where plaintiff brought an action on a promissory note for $1,000.00. The defendant filed five pleas: 1st, non assumpsit; 3rd, payment; 4th, set-off; and 5th, pendency of another action. The second plea it is not necessary to notice. Plaintiff demurred to the fifth plea and the court overruled plaintiff's demurrer. Plaintiff recovered verdict and judgment for $839.77, from which he appealed and assigned for error, among other rulings, the overruling of his demurrer to the fifth plea. This court affirmed. In holding that overruling plaintiff's demurrer to the fifth plea was not reversible error, this court said:
See also: Odum v. Coldwell, 21 Ala.App. 74, 105 So. 398.
Consideration of Plea II could end here except for the assignments in which plaintiff asserts that the court erred in overruling plaintiff's objections to evidence offered by defendant and admitted by the court in support of Plea II. Plaintiff's Assignments 8, 11, 12, and 13 present the rulings on this evidence.
Assignment 8. Plaintiff called as a witness the manager of the funeral home which had prepared the bodies of the children for burial. On direct examination the plaintiff elicited from the witness certain details as to the condition of the bodies found at the scene after the wreck. Apparently, the witness testified on cross-examination with respect to shipment of the bodies of the children as follows:
Plaintiff assigns the overruling of his objection as error. We note that four questions earlier, plaintiff, on redirect examination had asked the witness what sort of preparation had been made of the bodies of the children.
The "Mr. Walters" referred to as having bought the casket is the man who had married the mother of the children after her divorce from the plaintiff.
Assignment 11. Plaintiff assigns as error the overruling of his objection to cross-examination of plaintiff's mother as follows:
Assignment 12. Plaintiff assigned as error the overruling of his objection to admission into evidence of defendant's Exhibit A, which is a transcript of the record of the proceedings in the court in Lancaster County, South Carolina, whereby the mother of the three children obtained a decree of divorce from plaintiff on the ground of physical cruelty commited by plaintiff on the wife. The decree ordered plaintiff to make weekly payments for support of the children. It is noted that prior to defendant's offer of its Exhibit A, the plaintiff, before he rested, introduced into evidence, by plaintiff's Exhibit 41, a decree of the South Carolina court which is also a part of defendant's Exhibit A. Plaintiff's Exhibit 41 is a transcript of a decree, which the South Carolina court had entered by consent of the parties, whereby the original divorce decree was modified, and the court ordered that the instant plaintiff, the father of the minor children, shall pay no support but the mother or her second husband, the Mr. Walters mentioned above, may use the children as dependents for tax purposes.
Assignment 13. Plaintiff assigns as error the overruling of his objections to admission into evidence of defendant's Exhibits, B, C, D, and E. These four exhibits are also transcripts of proceedings in the South Carolina court. Exhibit B is petition for child support filed December 23, 1958, by the mother praying for an order that plaintiff support the children. Exhibit C is an order dated March 3, 1960, directed to plaintiff, ordering him to show cause why he should not be held in contempt for failure to obey an order to support his children. Exhibit D is an order dated March 12, 1960, adjudging plaintiff to be in contempt for failure to obey the support order. Exhibit E is an order dated June 11, 1960, reciting that plaintiff had been adjudged in contempt and ordered to pay a specified sum of money to purge himself of contempt, that plaintiff had failed to purge himself of contempt, and that he is ordered to be confined for a period of six months or to pay to the court the sum of $500.00.
The testimony of which plaintiff complains certainly is unfavorable to plaintiff, and it does not seem that this testimony would be admissible except to prove the facts alleged in Plea II. Although overruling plaintiff's demurrer to Plea II, even if erroneous, is without injury to plaintiff, we are not advised of any authority as to whether the admission of the evidence complained of would be erroneous under the circumstances of this case. We are of opinion, however, that if Plea II is a proper plea in bar, then the evidence is admissible in support of Plea II to support the allegation that plaintiff had deserted his family and that the desertion continued to the date of the death of the children. It thus appears that, in order to decide whether admission of the evidence of which plaintiff complains in Assignments 8, 11, 12, and 13 is reversible error, it is necessary to decide whether Plea II is a plea in abatement or a plea in bar.
Plaintiff contends that Plea II is a plea in abatement and, to support his contention, relies on five decisions of this court which are numbered and next referred to.
(1) In City of Mobile v. Lee, 274 Ala. 344, 148 So. 2d 642, the appellee moved to dismiss the appeal on two grounds, one of which was that the appellant was not aggrieved by the ruling of the circuit court affirming an order of Board of Adjustment granting a variance from zoning regulations in the use of a certain lot located *38 in a residence zone in the city. This court held that appellee's objection to appellant's right to sue in the appellate court came too late where appellee had not raised the issue of appellant's lack of interest in the circuit court. In Lee, no pleading of any sort had been filed in the trial court raising the issue that appellant had no right to sue, and Lee does not provide any assistance or authority bearing on the question whether a particular pleading is a plea in abatement or a plea in bar. The question in the instant case is whether Plea II is in bar or in abatement, and Lee contributes nothing in answer to the question.
(2) In City of Prichard v. Geary, 268 Ala. 243, 105 So. 2d 682, certain trustees under a will filed a bill for declaratory judgment to determine whether certain real property within the city could be used for a filling station without violating the city zoning ordinance. The trial court decreed that the entire parcel of land was within the area zoned for business and that the zoning ordinance did not bar issuance of building permits for construction of buildings for business purposes on the property. The respondent city appealed and contended that the decree was in error because the complainants had failed to prove that they possessed the authority to lease and operate the property under the will of the testator as alleged in the bill of complaint. This court held that respondent's contention was without merit because the respondent had failed to raise in the trial court the question of complainant's capacity to sue and had thereby waived the right to raise that question. In Geary, as in Lee, the issue was not raised as to whether a particular plea was in abatement or in bar, and Geary contributes nothing in answer to the instant question.
(3) In Sovereign Camp W. O. W. v. Gunn, 229 Ala. 508, 158 So. 192, plaintiff, as assignee of the beneficiary in a life insurance policy, sued on the policy to recover for the death of insured. Judgment was for plaintiff and defendant appealed. Examination of the original record in Gunn (Tr. 89-96) discloses that the trial court, over defendant's objection, permitted the plaintiff to introduce into evidence a certified copy of the petition and all steps leading up to a decree removing the disabilities of nonage of the plaintiff. Defendant assigned as error the action of the trial court in overruling defendant's objection to this evidence. This court held that admission of the evidence was error and said that the question of plaintiff's right to sue in her own name could be raised only by plea in abatement. It does not appear that defendant filed such a plea. On page 89 of the transcript, counsel for plaintiff stated: "Now, they haven't raised that by plea. I don't think I have to do it." This court has said: "Infancy of plaintiff is not a defense in bar of the action. It must be pleaded in abatement." Howland v. Wallace, 81 Ala. 238, 239, 2 So. 96. In a later case, this court said: ".... the failure to file the suit by next friend.... is a mere irregularity, curable by amendment, and not a defect rendering the proceedings void...." Wyrosdick v. Age-Herald Pub. Co., 217 Ala. 657, 658, 117 So. 28.
In the instant case, defendant's Plea II is not a plea of plaintiff's infancy. The defect alleged in Plea II is not a mere irregularity which can be cured by lapse of time. If the facts alleged in Plea II be true, the plaintiff was, at commencement of the instant action and thereafter, forever barred from recovering judgment for the death of the children. Gunn is not authority on the question whether Plea II is in abatement or in bar.
(4) In Tilson v. Graham, 208 Ala. 312, 94 So. 295, an action of forcible entry and unlawful detainer, there was "verdict under the issues on the merits" and judgment for plaintiffs according to the verdict. Defendant filed motion for new trial and insisted that the affirmative charge requested by defendant should have been given because there was no evidence to prove that the plaintiffs, who had sued as trustees of Graham Chapel M. P. C., had ever been *39 properly appointed such trustees. On appeal, this court said that the issue of plaintiffs' capacity to sue had not been raised by a plea in abatement or demurrer, and that the right to challenge plaintiffs' capacity had been waived by plea to the merits and came too late when first raised in the motion for new trial. Tilson furnishes no assistance in deciding whether the instant Plea II is in abatement or in bar.
(5) In Southern Railway Co. v. Stonewall Ins. Co., 177 Ala. 327, 58 So. 313, on appeal by defendant from judgment for plaintiff as assignee of claim for damages occasioned by fire allegedly caused by defendant's locomotive, this court appears to have held that, in absence of demurrer to complaint or plea in abatement, defendant could not raise the question of plaintiff's right to sue by objections to evidence or requests for instructions. Stonewall is of no assistance here.
As we understand the five cases relied on by plaintiff, none of them shows that a plea in abatement was filed, and it seems clear that this court did not decide in any of the five cases that a plea, alleging that the father had deserted his family at the time of the child's death, was a plea in abatement and not a plea in bar of the father's right to recover for death of his minor child.
We look to statutes and cases to determine whether Plea II is in bar or in abatement. The statute declares that whether a plea is in bar or in abatement is to be ascertained by its subject matter and prayer and not by the form of the plea. Code 1923, § 9472; Code 1940, Title 7, § 227. Fife v. Pioneer Lumber Co., 237 Ala. 92, 185 So. 759.
Title 7, § 119, creates the right of action for death of a minor child in favor of the father; but, the father has no right of action for the death of his minor child if the father has by desertion, or disability named in Title 7, § 118, ceased to perform the parental duty of maintenance, etc., with reciprocal right to the child's services. McWhorter Transfer Co. v. Peek, 232 Ala. 143, 167 So. 291.
The courts of Indiana have had occasion to consider a question similar to, although not precisely the same as, the instant question. In 1904, in Chicago & Bloomington Stone Co. v. Nelson, 32 Ind.App. 355, 69 N.E. 705, a mother sued for the death of her minor son. The Indiana statutes are substantially the same as the Alabama statutes with respect to the mother's right to sue when a father has deserted his family.[1] In Nelson the mother, by the *40 averments of her complaint, based her right to sue on the fact that the father had deserted his family. The defendant filed a pleading denominated "plea in abatement," alleging that the father was not dead or in prison and that he had not deserted his family; and, on this ground it was asked that the action abate until the facts charged should be finally adjudicated. The defendant's plea was stricken by the trial court on plaintiff's motion. As noted in Michigan Cent. R. Co. v. Spindler, infra, the reason for striking the plea appears to be the rule prevailing in Indiana that matter which constitutes an answer in bar cannot be pleaded in abatement. The Appellate Court of Indiana, in Nelson, held that the trial court did not err in striking the plea and stated the reasons for so holding as follows:
In 1937, in Michigan Cent. R. Co. v. Spindler, 211 Ind. 94, 5 N.E.2d 632, the Supreme Court of Indiana held that the trial court did not err in sustaining plaintiff's demurrer to defendant's plea in an action by an administrator for death of his intestate. Judgment was for plaintiff and defendant appealed. It does not appear that plaintiff's intestate was a minor. The death occurred when an automobile driven by intestate collided with a train operated by defendant. Defendant's plea was to the effect that defendant did not operate the train and was not responsible for its operation. The court said:
Plea II in the instant case is a complete defense to the action. The plea does not in any respect give plaintiff a better writ. If the allegations of Plea II be true, the plaintiff can never recover for the death of his children, which is the foundation of plaintiff's cause of action.
We are of opinion that Plea II is a plea in bar and was properly allowed to be pleaded contemporaneously with the general issue, and that the evidence complained of in Assignments 8, 11, 12, and 13 was admissible in support of Plea II.
In Assignments 14, 15, 16, and 17, plaintiff asserts that the trial court erred in allowing defendant to inject into the case over plaintiff's objection evidence that plaintiff had been convicted of housebreaking, larceny, and receiving stolen property at the age of thirteen years.
Plaintiff testified in his own behalf. On cross-examination, defendant asked plaintiff had he ever been convicted of the enumerated crimes. Plaintiff answered in the negative, but, on being shown a certificate, plaintiff said that he had forgotten about it and that he had been put on probation.
Plaintiff contends that the evidence of plaintiff's conviction was not admissible under Title 13, §§ 377, 378, Code 1940; Hammac v. State, 44 Ala.App. 459, 212 So. 2d 849; Love v. State, 36 Ala.App. 693, 63 So. 2d 285.
If it were shown that the conviction of plaintiff was under Chapter 7 of Title 13, Code of 1940, then it would appear that plaintiff's objection should have been sustained; but, it does not appear that plaintiff's conviction or the adjudication against him was under Chapter 7. The record does not disclose the court or the state in which the proceedings referred to were had. §§ 377 and 378 forbid use of evidence of adjudications which were had "under the provisions of this chapter." In the absence of a showing that the adjudication against plaintiff was under Chapter 7, or some similar statute, no reason appears to hold that the evidence here complained of was not admissible; and, since it does not appear in the record before us that the adjudication against plaintiff was under Chapter 7, it has not been shown that the trial court erred in overruling plaintiff's objection to evidence showing plaintiff's prior conviction.
Plaintiff assigns for error the overruling of his motion for new trial on the ground that the verdict is grossly inadequate.
Plaintiff cites Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. 298, wherein a father sued for death of his minor child under Code 1923, § 5695; Code 1940, Title 7, § 119. This court held that the trial court had not erred in refusing defendant's charges 43 and 44. This court said these charges wholly failed to give definite directions and limitations to the jury for assessment of punitive damages, that this omission rendered the charges misleading and justified their refusal. This court said further that while juries in assessment of punitive damages are given a discretion in determining the amount of damages, this discretion is not unbridled or arbitrary but a legal, sound, and honest *42 discretion; and that, in arriving at the amount of damages, due regard should be had to the enormity or not of the wrong and the necessity of preventing similar wrongs. The judgment was reversed for other errors, and it does not appear that this court considered defendant's motion for new trial.
Plaintiff cites also Liberty National Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So. 2d 696, wherein plaintiff recovered a judgment for death of his minor child and defendants appealed. This court refused to reverse the trial court for overruling defendants' motions for new trial on the ground that the verdict was excessive. The two cited cases are not cases where plaintiff was asking for new trial on the ground that the verdict was inadequate.
In Louisville & Nashville R. R. Co. v. Street, 164 Ala. 155, 51 So. 306, plaintiff recovered verdict and judgment in an action for death of plaintiff's intestate under Code 1907, § 2486; Code 1940, Title 7, § 123. The verdict for plaintiff, in the sum of one cent, was set aside for inadequacy and new trial awarded on motion of plaintiff. Defendant appealed and this court reversed, saying:
The damages assessed under § 119, Title 7, are "entirely punitive, imposed for the preservation of human life." Weldon, supra. "Damages, under section 5695 (Code 1923), are punitive, just as are the damages under section 5696 (Code 1923)." (Par. Supplied) McWhorter Transfer Co. v. Peek, supra. Because the damages assessed are punitive and for the same purpose under § 119 and § 123, Title 7, the rule of review of the verdict for inadequacy ought to be the same under both sections; and, the rule applied in Street to the verdict under § 123 will be applied to the verdict under § 119 in the instant case. Accordingly, we hold that the trial court did not err in overruling plaintiff's motion for new trial on the ground that the verdict is inadequate.
Plaintiff assigns as error that the trial court erred in sustaining defendant's objections to plaintiff's Exhibits 25 through 31, which are exemplified copies of proceedings in the Probate Court of Lancaster County, South Carolina, showing that plaintiff had been appointed administrator of the estates of his three deceased children. As we understand the record, the action was brought by plaintiff as the father of the children and not as administrator of their estates. As stated in Benson v. Robinson, 223 Ala. 85, 134 So. 799:
*43 It does not appear that the plaintiff undertook to amend so that he would sue as administrator instead of as father. We are not to be understood as holding that such an amendment would have been proper.
The relevancy of Exhibits 25 through 31 to any material issue does not appear, and error is not shown in sustaining objection to these exhibits.
Affirmed.
McCALL, J., concurs.
The special concurring opinion by HARWOOD, J., concurred in by LAWSON, SIMPSON, MERRILL, and MADDOX, JJ., is withdrawn. All of the above named Justices concur in this action.
Upon further consideration LAWSON, SIMPSON, MERRILL, HARWOOD, and MADDOX, JJ., are in accord with the conclusions reached by COLEMAN, J., and now concur in that opinion.
Application for rehearing overruled.
LAWSON, SIMPSON, MERRILL, COLEMAN, HARWOOD, MADDOX, and McCALL, JJ., concur.
HEFLIN, C. J., dissents.
BLOODWORTH, J., recuses self.
HEFLIN, Chief Justice (dissenting):
I disagree with Justice Coleman's opinion that Plea II is a plea in bar. I feel that it is a plea in abatement.
Plea II is as follows:
Justice Coleman in his proposed opinion states as follows:
This Court in City of Prichard v. Geary, 268 Ala. 243, 105 So. 2d 682, stated:
This Court in City of Mobile v. Lee, 274 Ala. 344, 148 So. 2d 642, stated as follows:
In 39 Am.Jur., Parties, Section 105, the following appears:
In Sovereign Camp, W. O. W., v. Gunn, 229 Ala. 508, 512, 158 So. 192, it was stated as follows:
Justice Coleman contends that in determining whether a plea is a plea in bar or a plea in abatement it is necessary to look to see whether or not the plea gives the plaintiff a better writ. Under the circumstances, involved in the case under review, I fail to see how this inquiry is a criterion for determining the type of plea in this case. Certainly a party who contends that a plea is a plea in abatement should not be penalized because the adverse pleader creates a defect in his plea, if such a defect exists. However, under the facts of this case, I fail to see why the defendant should have to give the plaintiff a better writ. The purpose of providing the plaintiff with information to prepare a better writ is so that the plaintiff may correct his writ or so that he may avoid the same mistake if another suit is filed in regards to the same cause of action. If a better writ is needed, the statute provides the necessary guidelines. Whenever the law requires that the defendant give the plaintiff a better writ in a plea in abatement, the rationale of such requirement is based on the fact that the defendant has a peculiar knowledge of the facts and materials which the plaintiff might not have. But in this instance, such is not applicable for the plaintiff has a better knowledge of whether he qualifies under the statute to bring the suit.
Holding that the issues on this appeal are limited to the sole question of the adequacy of damages because the successful party in the trial below took the appeal, the majority of this Court, who concur specially in the result of Justice Coleman's opinion, avoids a determination of the issue of whether Plea II is in bar or in abatement, I feel that this majority overlooked or misconstrued the law of this state which allows a review where erroneous rulings on questions of evidence affected, or may have *45 affected, the assessment of damages to the plaintiff's harm.
In Pounds v. General Motors Acceptance Corporation, 220 Ala. 145, 124 So. 204, an action for damages for a malicious trespass, plaintiff, dissatisfied with the judgment in his favor, appealed to this Court. At the time of the alleged trespass, an agent of the defendant was attempting to collect an allegedly overdue payment on an automobile. Plaintiff contended that he was not in arrears, and complains that the trial court improperly allowed testimony tending to show he had been frequently or even habitually slow in his payments. This Court held such evidence to have been properly admitted in answer to the claim of punitive damages asserted by the plaintiff. The Court further stated, however, that "In these circumstances this court will review only those assignments of error that may have prejudicially affected the amount of plaintiff's recovery. Franklin v. Argyro, 211 Ala. 506, 100 So. 811; Davis v. Erwin, 214 Ala. 341, 107 So. 903. The damages assessed may have been in greatly preponderating part merely punitive, their assessment, within reasonable limits, resting in the sound discretion of the jury * * *; but if erroneous rulings on questions of evidence affected, or may have affected, the assessment of damages to plaintiff's hurt, such rulings will be reviewed on appeal." Id., at 146, 124 So. at 204.
The principle enunciated in the Pounds case, supra, was recognized in Miller v. Thomason, 229 Ala. 267, 156 So. 773, in slightly different language, to wit:
In Caudle v. Sears, Roebuck & Co., 236 Ala. 37, 182 So. 461, this Court as then constituted, stated:
Agreeing with that portion of Justice Coleman's opinion that the evidence admitted in support of Plea II was unfavorable to the plaintiff and should not have been admitted if Plea II was in abatement, it is inescapable that the admission of such evidence tended to reduce the amount of the judgment. Therefore, I must respectfully dissent.
[1] ".... Section 266, Burns' Rev.St. 1901, provides: `When a husband or father has deserted his family or is imprisoned, the wife or mother may prosecute or defend, in his name, any action which he might have prosecuted or defended and shall have the same rights and powers therein as he might have had.' Section 267, Burns' Rev.St.1901, is as follows: `A father (or in case of his death or desertion of his family or imprisonment, the mother) may maintain an action for the injury or death of a child.' This statute, upon the condition named, vests in the mother the right to prosecute an action for the injury or death of her minor child...." (69 N.E. at 706) | May 6, 1971 |
1d7f1f78-b623-484e-9369-8e41533c812f | Liddell v. State | 251 So. 2d 601 | N/A | Alabama | Alabama Supreme Court | 251 So. 2d 601 (1971)
James LIDDELL, Jr.
v.
STATE.
7 Div. 693.
Supreme Court of Alabama.
March 4, 1971.
Reversed after Remandment August 5, 1971.
*603 Oscar W. Adams, Jr., U. W. Clemon, Demetrius C. Newton, Birmingham, Jack Greenberg, Norman C. Amaker, New York City, for appellant.
MacDonald Gallion, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for the State.
HARWOOD, Justice.
This appeal is from a verdict and judgment finding the appellant, James Liddell, Jr., guilty of rape. Punishment was fixed at death.
The evidence introduced by the state tends to show that on the night of 26 August 1964, at about 10:45 P.M., the prosecutrix and her date for the evening were sitting in her date's automobile in a parking area immediately off of a public highway which runs down Lookout Mountain toward Gadsden in Etowah County. After the couple had been thus parked for about a half hour, someone came to the window on her date's side of the automobile, placed a hand on his shoulder, and with a pistol in his other hand, ordered the date out of the automobile. As the date left the automobile he was struck on the jaw and then dragged down the mountain for a distance. Here he was detained at gun point by one or more men in relays until the men left some thirty minutes later.
The prosecutrix was pulled out of the automobile and dragged down the mountain in a different direction by another of the men. While resisting, she tripped her assailant and both fell to the bottom of an embankment. This area was heavily wooded.
There the man who had forced her to this area sexually assaulted her, a second man helping to hold her during this assault. This second man then assaulted the prosecutrix sexually, to be followed by another sexual assault by the first man.
A third man appeared and he also sexually assaulted the prosecutrix. The men then left the area. This third man was subsequently identified by the prosecutrix as being James Liddell, Jr., the appellant here.
After her attackers departed the prosecutrix made her way up the mountain to the home of Mr. and Mrs. Jack Wheeler. She arrived at the Wheeler home in a highly emotional state, begging for help. Her hair was mussed up, and dirt was on her dress, arms, body, and in her hair. After hearing her complaint, the Wheelers called the police, and the parents of the prosecutrix.
That same night she was taken to a hospital in Gadsden. The physician who examined her there found lacerations on the floor and both sides of her vagina. A specimen of fluid having the appearance of semen was removed from the vagina. Subsequent miscroscopic examination of this fluid revealed multiple spermatozoa of different sizes and shapes indicating ejaculation by at least two different men.
Several days later the appellant was identified by the prosecutrix as one of her assailants, he being included in the last of five or six lineups viewed by the prosecutrix. In her testimony at the trial below, the prosecutrix testified she recognized the appellant from seeing him at the time of the attack, there being moonlight and some light from automobiles passing on the highway.
The evidence presented by the appellant sought to establish an alibi, such testimony being directed toward showing that the appellant *604 was elsewhere than at the scene of the attacks at the time they occurred.
This is a companion case to Butler v. State, 285 Ala. 387, 232 So. 2d 631, in that Butler was the second man alleged to have raped the prosecutrix on the occasion in question. The facts shown in the Butler case, supra, are in all material aspects virtually the same as those produced in the trial of this appellant. Further, many of the points raised in this appeal are the same as those presented and considered in Butler, supra.
In the present case as in Butler, supra, a motion was made to quash the indictment on the ground that negroes were systematically excluded from the Grand Jury returning the indictment against him. The motion further avers that a motion to quash a previous indictment against the appellant on the same ground, i. e., systematic exclusion of negroes, was granted, and that the Jury Commission of Etowah County was ordered to make up a jury roll; that the Jury Commission "purportedly" made up a new jury roll and the Grand Jury which returned the present indictment was drawn from such jury roll. The motion avers that at the time the second Grand Jury returned the present indictment, the white population of Etowah County twenty-one years of age or over according to the 1960 Federal Census report constituted 84.6 of the population of Etowah County, and the negro male population in said age group constituted 15.4 percent, and that the jury rolls of Etowah County contain less than 5 percent of the negro males eligible for jury duty.
It is to be noted that the motion does not aver what percent of eligible white population is on the jury roll. It therefore furnishes no basis for concluding that there was any discrimination on a racial basis.
As in Butler, supra, we find no evidence submitted at the hearings on the motion for a new trial tending in anywise to support this ground of the motion for a new trial. The burden cast upon an appellant to establish discriminatory exclusion because of race, and the governing legal principles relating to racial composition of juries as required constitutionally are fully set forth in Butler, supra. Therein we held that the appellant had failed to establish racial discrimination in the composition of the jury roll returning the indictment. We likewise so hold in this case.
Another ground of the motion for a new trial asserts that negroes were systematically included on the jury roll from which the Grand Jury was drawn that returned the present indictment. Again, no evidence whatsoever was offered in support of this ground. No error therefore resulted in denial of the motion for a new trial on this ground.
A further ground of the motion for a new trial asserted that at the time this indictment was returned women were excluded from the jury rolls of Etowah County from which the Grand and Petit Juries were drawn. This question was decided adversely to appellant's contentions in Butler, supra, with a full recitation and discussion for our conclusion. We adhere to the views expressed in Butler, supra, on this point and hold this point to be without merit.
Another ground of the motion for a new trial asserts that the sentence of death for rape is an unconstitutional sentence in that it amounts to a cruel and unusual punishment. This same point was advanced in Butler, supra, and decided adversely to the appellant's contentions. We adhere to this conclusion and hold this contention to be without merit.
Counsel for appellant also contends that the lower court erred in denying appellant's motion for a continuance timely made in the court below. The ground asserted in the motion as a basis for the continuance was that publicity attending certain demonstrations and occurrences in Selma had so inflamed the minds of many white citizens in Alabama, some of whom *605 might be on the jury trying the appellant, that he could not obtain a fair and impartial trial.
Appellant had the burden of showing the trial court that an impartial trial and an unbiased verdict could not be reasonably expected in Etowah County. Nickerson v. State, 283 Ala. 387, 217 So. 2d 536; Bosarge v. State, 273 Ala. 329, 139 So. 2d 302.
We do not find in the record any evidence offered in support of the motion for a continuance. In this state of the record nothing is presented on this question for our review. The same type of motion for a continuance was made and denied in Butler, supra, and the denial was made a basis of asserted error, on the appeal in that case. We see no need for further elaboration of the views set forth in Butler, supra, which compelled the conclusion that no error infected the ruling. Likewise no error infected the ruling on the motion for a continuance in this case.
It appears from extended colloquy between counsel for the appellant, the court, and counsel for the state, occurring during one of the hearings on the motion for a new trial that counsel for appellant had requested the issuance of a subpoena duces tecum to the clerk of every circuit court in Alabama, seeking to have the clerks appear in the Circuit Court of Etowah County, and bring with them the court records of their respective counties or circuits in those trials wherein the death penalty had been imposed. These subpoenas are not included in the record before us, but we gather from the colloquy of counsel that the records sought were of trials had since 1927, or 1930, each year being mentioned.
The state filed a motion to quash the issuance of the said subpoena duces tecum and this motion was granted except as to Etowah County. It was the court's view that the records of counties other than Etowah County were irrelevant and immaterial on the question of whether there was a pattern of discrimination in the imposition of the death penalty against negroes as contrasted with whites in Etowah County.
Counsel for appellant now argue that by this ruling the appellant was deprived of a right to discover evidence tending to prove his claim of discrimination in the imposition of the death penalty as between whites and negroes.
We are in full accord with the court's view that the evidence sought by the subpoena duces tecum to every circuit clerk would be immaterial, and irrelevant and therefore inadmissible. The question before the court was the existence of bias only in Etowah County.
The court did not quash the subpoena duces tecum to the Clerk of the Circuit Court of Etowah County. We do not find in the record, however, that any records of the Circuit Court of Etowah County pertaining to the imposition of death penalties by juries in that county were offered in the proceedings below.
Had such records been offered, their relevance in a particular case would be highly suspect. The brutality with which a crime is committed, and numerous other factors enter into the imposition of punishment in each individual case.
Further, Section 3, Title 7, Code of Alabama 1940, provides:
Clearly this section means that the records of a court can be removed from a county only upon the order of a court having control and custody of the records.
*606 After verdict and judgment below, the appellant filed a "Motion for Reduction of Sentence."
The grounds for such motion were:
In support of Grounds 1 and 2 of the motion, counsel for appellant offered in evidence a survey and a statistical study made of selected counties in twelve southern states including Alabama. Some seventeen counties scattered throughout the length of Alabama, including Etowah County, were selected by John Monroe, a sampling and survey statistician, and the studies were made in such selected counties by students completing lengthy forms prepared by Dr. Marvin Wolfgang, a criminologist and sociologist of the University of Pennsylvania.
The depositions of Mr. Monroe and Dr. Wolfgang pertaining to their study and conclusions were offered in evidence, at which time the court stated that the offers would be noted.
Appellant contends that these surveys as a whole show that Alabama juries practice racial discrimination in favor of whites and against negroes in the imposition of death sentences for the crime of rape.
This same issue, supported by the same survey evidence, was raised in Swain v. State, 285 Ala. 292, 231 So. 2d 737, and in Butler, supra. After a careful study and a full discussion, particularly in Swain, supra, this issue was decided adversely to appellant's contentions. We adhere to the conclusions reached on these contentions in Swain, supra, and Butler, supra.
Additionally, under Amendment 38, Alabama Constitution of 1901, only the Governor has the power to grant reprieves and commutations to persons under sentence of death, and under Section 395, Title 14, Code of Alabama 1940, punishment of one convicted of rape is fixed, in the discretion of the jury, at death or imprisonment in the penitentiary for not less than ten years. Under Alabama constitutional and statutory provisions, therefore, a court has no power to fix the punishment of one convicted of rape, nor to commute a death sentence imposed by a jury. Such matters are solely within the province of the jury or the Governor.
Ground 3 of the motion to reduce the sentence would necessitate a bifurcated jury trial, the jury first determining the guilt of the accused, and thereafter upon a second hearing, assessing punishment.
Although several states have provided by statute for a guilt phase and penalty phase procedure in criminal trials, the United States Supreme Court has heretofore rejected attacks upon the single jury system which permits a jury to determine the guilt and assess punishment in one procedure. *607 In Spencer v. Texas, 385 U.S. 554, 87 S. Ct. 648, 17 L. Ed. 2d 606 (1966), that court wrote:
We hold that the court below properly denied the appellant's motion for reduction of sentence. To the same effect see Swain, supra, and Butler, supra.
The lower court did not err in denying appellant's motion for a reduction of sentence.
The trial of this case began on 17 May, 1965, and verdict and judgment was rendered and pronounced on 20 May 1965.
A motion for a new trial was duly filed. This motion was continued innumerable times, and finally overruled and denied on 14 July 1967.
Thereafter great difficulty was encountered in having the court reporter prepare and file a transcript of the evidence. In fact some 31 extensions of time of thirty days each were granted for the reporter to file the transcript of the evidence, which was finally filed in the Circuit Court of Etowah County on 26 January 1970. Even then no report of the voir dire examination of the qualifications of the jurors appeared in the transcript, and an additional thirty day extension was granted to correct this defect.
In lieu of a transcript of the voir dire examination of the jurors, the reporter prepared an affidavit which sets forth that during the trial below he "recorded on a standard Audograph (brand name) recording machine all the proceedings and qualifying questions asked of the jury panel, but did not take those qualifying questions down on my Stenograph shorthand machine.
This affidavit together with the records was forwarded to the Clerk of the Circuit Court of Etowah County with the request by the attorneys for the appellant that the same be forwarded to this court as a part of the record. This request was complied with by the Circuit Clerk.
The transcript of the full record was filed in this court, and the case was submitted on oral argument on 12 January 1971.
We have played these records on a standard Audograph machine.
It is true that as to questions asked by the attorneys in examining the jurors, the jurors' answers are largely inaudible.
However, while the court was examining the panel of jurors by groups pertaining to their statutory qualifications, both the questions by the court and the jurors' answers are in most instances quite clear and audible. *608 During the court's qualification of the jurors, he addressed to each group the question, "Do you believe in capital punishment?" Two jurors in each group replied, "No." These four jurors were Henry R. Johnson, Herman Williams, Carl Wright, and James S. Neal. Each of said jurors was challenged upon giving such negative reply.
At the conclusion of the qualifying questions by the court, the names of the four above named jurors were called by the court, and they were again challenged. These jurors were thereupon excused by the court.
While the identity of the person interposing the challenges is not disclosed by listening to the record, we must assume, in the background of the trial, that such challenges were interposed by the prosecution.
Ex parte affidavits cannot be made a part of a record on appeal. Ragsdale v. State, 134 Ala. 24, 32 So. 674; Lewis v. State, 42 Ala.App. 166, 157 So. 2d 38. We are not, however, here considering an ex parte affidavit, but an Audograph record of the proceedings made during the examination of jurors looking toward their qualifications, which record was made by the official court reporter in lieu of a shorthand recording of the same.
These Audograph records were forwarded to the Clerk of the Circuit Court of Etowah County and sent to this court with the record of the trial below. They are before us as a part of such record. While the court reporter in his affidavit asserts that the records are inaudible, a playing of the same proves that they are clear and audible in those portions relating to the examination of the jurors as to whether they "believed" in capital punishment. Four of the jurors having answered they did not believe in capital punishment, they were challenged and excused upon such challenges. These facts place this case squarely within the influence of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 and Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433.
The doctrine of Witherspoon and Boulden, supra, is to the effect that a simple negative answer to a general question addressed to a prospective juror, as to any "conscientious scruples" or "opposition" or "fixed opinion" against capital punishment, is insufficient to excuse such juror upon a challenge because of such belief, opposition, or fixed opinion. Such venireman must be further examined to sufficiently show that he would automatically vote against the imposition of the death penalty no matter what the evidence introduced at the trial might reveal. Otherwise it cannot be assumed such would be his position.
The court in the course of its opinion in Witherspoon, supra, enunciated its conclusion in unmistakable language as follows:
Further, in Witherspoon, supra, the court made it clear, in footnote 22 to the opinion, that the doctrine was to apply retroactively.
In Boulden, supra, after affirmance of the judgment of guilty and sentence of death by this court, (see Boulden v. State, 278 Ala. 437, 179 So.2d 20), habeas corpus proceedings were instituted in the United States District Court for the Middle District of Alabama. The habeas corpus petition was based in part on the alleged involuntariness of a confession. The U. S. District Court denied the petition, 257 F. Supp. 1013, and on appeal the Fifth Circuit affirmed, 385 F.2d 102. The United States Supreme Court granted certiorari, 393 U.S. 822, 89 S. Ct. 224, 21 L. Ed. 2d 93.
*609 Although not raised in the courts of this state, or in the District Court or the Circuit Court of Appeals, nor in the petition for certiorari filed in the U. S. Supreme Court, it was shown by the record that a number of jurors had been excused on challenge because of their fixed opinion against capital punishment. The U. S. Supreme Court vacated the judgment of affirmance entered by the Fifth Circuit Court of Appeals and remanded the case to the United States District Court "where the issue that has belatedly been brought to our attention may be properly and fully considered." 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433. The issue to be properly and fully considered by the District Court was the matter of excusing the veniremen for cause upon their answering affirmatively, and without further elucidation, that they had a fixed opinion against capital punishment.
In Jackson v. State, 285 Ala. 564, 234 So. 2d 579, we were presented with the same question as is now being considered, i. e., the excusing of veniremen for cause in view of their answers to the general question of whether they had a fixed opinion against the imposition of capital punishment.
There we followed the procedure which we concluded was used by the United States Supreme Court in Boulden, supra, and remanded the case to the lower court with the following statement:
This case is likewise remanded to the Circuit Court of Etowah County for further proceedings in accordance with this opinion.
Remanded for further proceedings in accordance with this opinion.
SIMPSON, MERRILL, COLEMAN, BLOODWORTH, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., and LAWSON, J., concur in result.
HARWOOD, Justice.
Pursuant to our order of remandment, a hearing was had by the court below and the following facts were developed.
Of the four jurors excused on challenge by the state because of their negative answers to the question of whether they believed in capital punishment, jurors Johnson, Wright, and Neal testified at the hearing to the effect that they were inherently opposed to the death penalty no matter what the evidence might be, and would automatically vote against the death penalty without regard to the evidence produced at the trial. This had been their view, prior to, and at the time of the trial. We therefore *610 hold that the testimony of these three jurors was a sufficient basis for sustaining the challenge to each of said jurors because of their opposition to the infliction of the death penalty under any circumstances, and that the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776, were met as to these three jurors. Jackson v. State, After Remandment, 286 Ala. 287, 239 So. 2d 303.
However, in the hearing below it was shown that the juror Herman Williams had died prior to the hearing.
We are thus presented with the question of whether a reversal of this judgment is impelled by the impossibility of showing that the full extent of a deceased juror's feelings at the time of trial toward infliction of the death penalty were such that he would automatically vote against such penalty regardless of the evidence presented.
Section 57, Title 30, Code of Alabama 1940, reads:
The above code section has been in seven of our prior codes. Similar code sections are to be found in the codes of our sister states. In this state it has been held throughout the decades that this code section furnished, without more, a valid cause of challenge by the state of any juror affirmatively expressing a fixed opinion against capital punishment. This was the applicable rule at the time of the trial of this cause.
Regardless of what might be our views, we are bound by the decisions of the Supreme Court of the United States on matters involving federal questions. Howard v. Davis, 209 Ala. 113, 95 So. 354; State v. Curran, 220 Ala. 4, 124 So. 909; Opinion of the Justices, 278 Ala. 412, 178 So. 2d 641.
Inherent in the question now being considered is the application of the Sixth and Fourteenth Amendments of the United States Constitution to the facts shown. We must look to and be bound by pronouncements of the United States Supreme Court in reaching our conclusions.
We refer to the following statement from Witherspoon, supra:
These same views were reiterated and emphasized in Boulden v. Holman, Warden, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433.
In Marion v. Beto (CCA 5), 434 F.2d 29, the court stated:
The court answered the question as follows:
Mindful that theoretically we are not bound by the decisions of the federal courts other than the decisions of the United States Supreme Court, yet the practical reality is that the Federal District Courts within the Fifth Federal Circuit are bound by the decisions of the United States Circuit Court of Appeals for the Fifth Circuit. On habeas corpus in a federal court within the Fifth Circuit, the result would be a foregone conclusion.
But this aside, we agree with the conclusions reached in Marion v. Beto, supra, that the enunciations to be found in Witherspoon and in Boulden, supra, compel the conclusion reached. To the same effect are the conclusions reached in Woodards v. Maxwell, 303 F. Supp. 690 (S.D.Ohio); People v. Schader, 71 Cal. 2d 761, 80 Cal. Rptr. 1, 457 P.2d 841; In re Hillery, 71 Cal. 2d 857, 79 Cal. Rptr. 733, 457 P.2d 565.
In Marion v. Beto, supra, it is stated that several courts have answered the question in the negative, i. e., that the exclusion of a relatively small number of "scrupled" jurors of the total number of jurors excused does not deprive a defendant of an impartial jury as constitutionally required. In this connection are cited Bell v. Patterson (CCA 10), 402 F.2d 394; State of New Jersey v. Mathis, 52 N.J. 238, 245 A.2d 20; Pittman v. State (Tex.Cr.App.), 434 S.W.2d 352. After reading these cases, we are unconvinced that they were in fact opposed to the conclusion reached in Marion v. Beto, supra.
In State v. Mathis, supra, the New Jersey Supreme Court stated:
The court points out that under New Jersey decisions a juror could not be excused for cause merely because of a bias or scruple against capital punishment so long as such scruple does not prevent his consideration of the issue of punishment. The court then considered the voir dire examination of the jurors and concluded:
"Hence the jury was selected with the correct test in mind."
In Pittman v. Texas, supra, the Texas Court of Criminal Appeals wrote:
In Bell v. Patterson, supra, the court found that of the fifteen jurors excused because of their negative attitudes toward capital punishment, thirteen were properly excused because they indicated they would be unable to impose a death sentence in any case. As to the remaining two jurors, it was not sufficiently developed that they would automatically vote against the death penalty. The court points out that there were other jurors evincing conscientious scruples who were not excused for cause. The court found that under these conditions it could not be said that the jury failed to reflect a cross section of society, nor that the state had crossed the line of neutrality by the systematic exclusion of *612 any significant element of the community, i. e., those who opposed capital punishment. This, the court considered, distinguished the case under consideration from Witherspoon.
A yet more significant distinction from Witherspoon the court felt was that in Witherspoon the exclusions were based upon a state statute and involved an intentional application of an improper standard, that is the absolute right of challenge for cause solely on an expression of opposition to the death penalty, without a further examination to determine if the jurors' opposition would compel him to automatically refuse to impose such penalty regardless of the evidence.
Such distinction from Witherspoon is not available in the present case. Our statute, set out above, gives to the state the right to challenge for cause, and without further examination any juror who states he has a fixed opinion against capital punishment. Clearly under Witherspoon this is no longer an allowable procedure.
Regardless of our views as to the soundness of the Witherspoon doctrine, we are bound thereby, and must perforce reverse the judgment in this case because of the exclusion of the juror Herman Williams.
We also wish to make the following admonition to the trial courts. In all capital cases a juror answering that he has a fixed opinion against capital punishment, cannot properly be challenged solely on the basis of such answer. He should be examined fully to determine if his feelings as to capital punishment are sufficiently strong that he would automatically refuse to impose a death sentence regardless of the evidence produced.
The trial court should further make certain that the court reporter takes full notes from which a transcription can be made of the examination of the jurors relative to qualifying them.
For the reasons stated above this judgment must be reversed.
Reversed and remanded.
LAWSON, SIMPSON, MERRILL, BLOODWORTH, MADDOX and McCALL, JJ., concur.
HEFLIN, C. J., concurs in result. | August 5, 1971 |
3f76b23b-571a-4060-a177-642183f0522d | Beck v. Beck | 246 So. 2d 420 | N/A | Alabama | Alabama Supreme Court | 246 So. 2d 420 (1971)
James S. P. BECK, Jr., et al. as Individuals and as Co-Executors etc.
v.
Alton Smith BECK.
6 Div. 573.
Supreme Court of Alabama.
February 25, 1971.
Rehearing Denied April 8, 1971.
*421 George W. Nichols, Jr., Tuscaloosa, for appellants.
Hubbard & Waldrop, Tuscaloosa, for appellee.
LAWSON, Justice.
This is an appeal from a final decree of the Circuit Court of Tuscaloosa County, *422 in Equity, rendered in a declaratory judgment proceeding, which decree declared, among other declarations, that appellee, to whom we will sometimes hereinafter refer as Mrs. Alton Smith Beck, was the common-law wife of Dr. James S. P. Beck, deceased, from August 9, 1966, until September 9, 1966, the day of Dr. Beck's death.
The only question for our determination is the correctness of the declaration that Mrs. Alton Smith Beck was the common-law wife of Dr. Beck at the time of his death on September 9, 1966.
The bill for declaratory judgment was filed by the two children of Dr. Beck, as individuals and as co-executors of Dr. Beck's estate, against Mrs. Alton Smith Beck.
The complainants below are the appellants here. In brief filed in this court on behalf of appellee, Mrs. Alton Smith Beck, it is conceded that the division of appellants' brief headed "Statement of Case" is substantially correct, so we will quote pertinent parts of that division of appellants' brief:
"* * * The Bill of Complaint alleged that Dr. Beck had married the Respondent on April 1, 1965, and was granted a divorce from her on November 4, 1965. That on November 8, 1965, he executed his Last Will and Testament, leaving his entire estate, share and share alike, to his two children, appellants herein. Shortly thereafter, Dr. Beck underwent surgery, which revealed that he had cancer, and he never completely returned to health.
"The bill of complaint alleges further that a joint petition was filed by Dr. Beck and the respondent on the 4th day of August, 1966, asking that the divorce be set aside, and on August 9, 1966, Judge W. C. Warren signed a decree, setting aside the divorce, approximately nine months after it had been rendered. It was further alleged that Dr. Beck was mentally incompetent at the time he signed the petition praying that the divorce be set aside.
"That the appellee was living in Dr. Beck's home, claiming to be his widow, and claiming certain items of personal property, including a Cadillac automobile, as her own property.
"Respondent demurred to the bill of complaint. Bill of complaint was then amended by complainants, averring in substance, that the respondent had caused Dr. Beck to change his bank account from an individual account, in his name alone, to a joint account with the respondent. That this took place two days before Dr. Beck died, and now the respondent was claiming the money in the account, which was over $8,000.00, as her property. The bill of complaint as amended, prayed that the Court would declare the decree, setting aside the divorce, to be a nullity, and that the respondent was not the lawful widow of Dr. Beck, and decree that she had no title in the Cadillac automobile, and the money in the joint bank account. Demurrer of respondent to the bill, as amended, was overruled by the Court.
"Respondent filed an answer and cross bill stating primarily that she was the widow of Dr. Beck because the divorce, made and entered on November 4, 1965, was void, and the decree entered nine months later, on August 9, 1966, purporting to set aside the divorce, reinstated her marriage to Dr. Beck. In the alternative, she averred that a common-law marriage existed between her and Dr. Beck at the time of his death, and that she was his legal widow. [The answer filed by the respondent contained averments denying the alleged mental incompetency of Dr. Beck at the time of the occurrence of the matters alleged in the amended complaint.] Respondent prayed that the Court decree her to be the lawful widow of Dr. Beck; the lawful owner of the Cadillac automobile; and the money in the joint bank account.
"Respondent also filed a dissent from the will of Dr. Beck, claiming a widow's dower in his estate. Complainants filed a general denial to respondent's cross bill."
*423 Following a hearing, at which the witnesses testified orally, the trial court rendered a final decree, which reads as follows:
"This cause coming on to be heard, came the parties in their own and proper persons and by their attorneys and the Court proceeds to hear the evidence ore tenus in open court and the cause having been sumitted for final decree upon the pleadings and evidence presented in open court makes the following findings of fact, conclusions of law and decree.
"The Court finds that the Circuit Court of Tuscaloosa County, Alabama, was without jurisdiction to entertain or hear the joint petition filed by the Respondent and the said James S. P. Beck, Sr., to set aside the decree of divorce dissolving the bonds of matrimony between them, which said decree was made and entered on the 4th day of November, 1965, and concludes that by reason of the lapse of time the Circuit Court of Tuscaloosa County, Alabama, had lost jurisdiction over said cause and was without power to make or enter the order dated the 9th day of August, 1966, purporting to set aside the said final decree of divorce entered on November 4, 1965, between Respondent and the said James S. P. Beck, Sr.
"The Court further finds that the decree of divorce made and entered on the 4th day of November, 1965, was not void and that the allegations of the Complainant in said cause were sufficient to invoke the jurisdiction and authorize the granting of the said final decree of divorce made and entered on the 4th day of November, 1965.
"The Court further finds that based on the evidence presented in this cause that James S. P. Beck, Sr., had the mental capacity to enter into a common law marriage and that a common law marriage between James S. P. Beck, Sr., and the Respondent Alton S. Smith Beck came into existence to [sic], to-wit, August 9th, 1966, on or about the time the order was made and entered purporting to set aside the final decree of divorce of James S. P. Beck, Sr., and Alston S. Smith Beck; that said common law marriage existed from said time until the death of James S. P. Beck, Sr., on September 9th, 1966, and that the Repondent Alton S. Smith Beck was the widow of James S. P. Beck, Sr., at the time of his death.
"The Court further finds that based on the evidence presented in this cause the said James S. P. Beck, Sr., did not have sexual intercourse with the Respondent and that no intercourse took place between the Respondent and James S. P. Beck, Sr., between the 9th day of August, 1966, and the 9th day of September, 1966, and that the status of common law marriage existed between James S. P. Beck, Sr., and the Respondent during said time without sexual intercourse having taken place.
"The Court finds as a fact that at the time the said James S. P. Beck, Sr., purported to enter into a contract creating a joint checking account in the First National Bank of Tuskaloosa with Respondent in the amount of approximately Eight Thousand Four Hundred and No/100 ($8,400.00) Dollars, that the said James S. P. Beck, Sr., lacked the mental capacity to comprehend the nature and consequences of his said action and that he lacked the mental capacity to make such contract, and the Court finds that said contract was void and of no effect and finds that the funds so transferred to said joint account are properly assets of the estates [sic] of the said James S. P. Beck, Sr., deceased.
"The Court further finds that during his lifetime the said James S. P. Beck, Sr., acquired a certain Cadillac automobile which Respondent claims as an inter vivos gift from the said James S. P. Beck, Sr. The Court finds that the evidence of the Respondent with reference to the circumstances of such alleged gift is not sufficient to establish a gift of said automobile to the Respondent and that the same is a part of the property owned by the estate of James S. P. Beck, Sr., deceased.
*424 "IT IS THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the final decree of divorce made and entered on the 4th day of November, 1965, in the cause of James S. P. Beck vs. Alton S. Smith, Case No. 16421 in the Circuit Court of Tuscaloosa County, Alabama, in Equity, was final and binding on the parties, and the decree subsequently entered by this Court on the 9th day of August, 1966, purporting to set aside said final decree of divorce was a nullity. The Register of this Court is ordered to file a copy of this decree in the Court file of the said case of James S. P. Beck vs. Alton S. Smith, being Case No. 16421 in this Court.
"IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that a common law marriage relationship existed between the Respondent and James S. P. Beck, Sr., and the Respondent is found by the Court to be the lawful widow of James S. P. Beck, Sr., by virtue of said common law marriage relationship.
"IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the funds transferred to the joint account of Respondent and the said James S. P. Beck, Sr., in the First National Bank of Tuskaloosa on or about the 7th day of September, 1966, be, and the same are hereby declared to be the property of the estate of the said James S. P. Beck, Sr., deceased.
"IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Cadillac automobile in the possession of the Respondent at the time of the death of the said James S. P. Beck, Sr., be and the same is hereby declared to be the property of the estate of James S. P. Beck, Sr., deceased.
"IT IS FURTHER CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the costs of court in this proceeding be and the same are hereby taxed one-half against the Complainants and one-half against the Respondent with the further instruction that the costs shall be paid by the Executors of the estate of the said James S. P. Beck, Sr., deceased, and and one-half deducted from the distributive share of the Respondent and one-half deducted from the distributive shares of the Complainants, James S. P. Beck, Jr., and Martha Beck Wright."
The complainants below filed an application for rehearing, which was overruled. Thereafter they perfected an appeal to this court.
There was no cross appeal and appellee has made no cross assignments of error; hence, we are not here concerned with the trial court's action in declaring (1) that the divorce decree under date of November 4, 1965, was final and binding on the parties and that the decree of August 9, 1966, purporting to set aside said divorce decree is a nullity; (2) that the funds transferred to the joint account of appellee and Dr. Beck on or about September 7, 1966, are the property of the estate of Dr. Beck; (3) that the Cadillac automobile which was in the possession of appellee at the time of Dr. Beck's death is "the property of the estate" of Dr. Beck.Supreme Court Rule 3; American Casualty Co. of Reading, Pa., v. Devine, 275 Ala. 628, 157 So. 2d 661.
As stated in an opening paragraph of this opinion, we are concerned on this appeal only with the declaration "that a common law marriage relationship existed between the Respondent [the appellee, Mrs. Alton Smith Beck] and James S. P. Beck, Sr., and the Respondent is found by the Court to be the lawful widow of James S. P. Beck, Sr., by virtue of said common law marriage relationship."
After reading many of our cases which deal with common-law marriages, we find general agreement as to some aspects of such marriages.
Our cases are replete with statements to the effect that the common-law *425 mode of marriage is recognized as valid in this state.Tartt v. Negus, 127 Ala. 301, 28 So. 713; Fuquay v. State, 217 Ala. 4, 114 So. 898; Kelly v. Kelly, 247 Ala. 316, 24 So. 2d 265; Herd v. Herd, 194 Ala. 613, 69 So. 885.
No ceremony and no particular words are necessary to constitute a valid common-law marriage.White v. White, 225 Ala. 155, 142 So. 524; Herd v. Herd, supra; Huffmaster v. Huffmaster, 279 Ala. 594, 188 So. 2d 552; Murphy v. Jacobs, 249 Ala. 594, 32 So. 2d 306; Gilbreath v. Lewis, 242 Ala. 510, 7 So. 2d 485.
But to constitute such a marriage there must first have been a present agreement, a mutual understanding to presently enter into the marriage relationship, permanent and exclusive of all others.Turner v. Turner, 251 Ala. 295, 37 So. 2d 186; Whitworth v. Whitworth, 256 Ala. 296, 54 So. 2d 575; Jenkins v. Avery, 257 Ala. 387, 59 So. 2d 671; Goodman v. McMillan, 258 Ala. 125, 61 So. 2d 55.
The man and the woman must be capable in law of making a marriage contract.Murphy v. Jacobs, supra; White v. Hill, 176 Ala. 480, 58 So. 444. See Turner v. Turner, supra.
A marriage contract is of no validity if either of the contracting parties is of unsound mind.Willis v. Willis, 238 Ala. 153, 189 So. 873. It is unsoundness, not mere weakness of mind, which will avoid a marriage contract unless the weakness be so considerable as to amount to derangement.Rawdon v. Rawdon, 28 Ala. 565. The Willis and Rawdon cases were concerned with ceremonial marriages, but the principles for which they are cited here are equally applicable where the question is presented as to whether a claimed common-law marriage is valid.
The mutual consent by a man and woman capable in law of making a marriage contract to presently enter into the marriage relation, permanent and exclusive of all others, to which we will sometimes hereinafter refer simply as mutual consent, must be followed by a public recognition of the existence of the common-law marriage.Goodman v. McMillan, 258 Ala. 125, 61 So. 2d 55.
There is a lack of uniformity in the language used in our cases to depict the manner in which the man and woman must have lived, following their mutual consent, to constitute a valid common-law marriage. In some cases it is said that the mutual consent must be followed by cohabitation. Herd v. Herd, supra; Ashley v. State, 109 Ala. 48, 19 So. 917; Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640. In other cases it is said that the mutual consent should be followed by cohabitation and living together as man and wife. In some cases it is said, in effect, that the mutual consent should be consummated by cohabitation as man and wife or their mutual assumption openly of marital duties and obligations. White v. Hills, supra; Goodman v. McMillan, supra; Brown v. Brown, 276 Ala. 153, 159 So. 2d 855; Sloss-Sheffield Steel & Iron Co. v. Watford, 245 Ala. 425, 17 So. 2d 166. It has also been said, in effect, that the mutual consent should be followed by cohabitation as man and wife and their mutual assumption openly of marital duties and obligations.Campbell v. Rice, 245 Ala. 395, 17 So. 2d 162; King v. King, 269 Ala. 468, 114 So. 2d 145.
We find in none of our common-law marriage cases a clear-cut definition of the word "cohabitation" or an explanation of the use of the words "living together as man and wife" in conjunction with the word "cohabitation." Nor can we ascertain from those cases what the words "mutual assumption openly of marital duties and obligations" were intended to add to the requirement that the mutual consent should be consummated by cohabitation as man and wife. Likewise, we are unable to determine from our cases why the word "or" is used between the clause "the mutual consent should be consummated by cohabitation between man and wife" and the *426 clause "their mutual assumption openly of marital duties and obligations," while in other cases the word "and" is used between those clauses.
We see no occasion to become inundated in a sea of semantics, which would be the inevitable result if in this opinion we sought to explain why the writers of the several opinions referred to above have used different language to convey the same thought, namely, that in order to constitute a valid common-law marriage, the man and woman, following their mutual consent to live as man and wife, must so live as to gain the recognition of the public that they are living as man and wife rather than in a state of concubinage. See Huffmaster v. Huffmaster, supra; Goodman v. McMillan, supra.
The appellant contends in brief that the trial court erred in declaring that a common-law marriage existed because the evidence shows that at the time the court found that such relationship began and continuously thereafter until his death, Dr. Beck was without the mental capacity to consent or agree to enter into the marriage relationship.
We cannot consider that contention in that to do so we would have to deal with the sufficiency of the evidence and, as will be shown hereinafter, that question is not before us.
Supreme Court Rule 9 provides, in part, as follows:
It is pointed out in appellee's brief that appellants in their brief have failed to comply with Supreme Court Rule 9(b) in that they do not include in their brief a condensed recital of the evidence which bears on the points in issue as given by each witness, in narrative form. In reply brief, appellants concede, in effect, that in their original brief they did not include a condensed recital of the pertinent testimony, in narrative form, as given by appellee's witnesses, but assert, nevertheless, that they substantially complied with Supreme Court Rule 9(b) in that in their original brief "the testimony of witnesses on which appellant [sic] relies is in narrative form."
Appellants are mistaken. They did not substantially comply with Supreme Court Rule 9(b). In Standard Oil Co. v. Johnson, 276 Ala. 578, 588, 165 So. 2d 361, we quoted with approval from Slovick v. James I. Barnes Construction Co., 142 Cal. App. 2d 618, 298 P.2d 923, 927, as follows:
Appellants say in brief, in effect, that a common-law marriage can under no circumstances be valid if during such claimed relationship the parties did not engage in sexual intercourse. It is said in appellants' brief as follows: "Cohabitation and living together as man and wife include their sexual relations, and sexual intercourse is an indispensable element of a common law marriage." (Emphasis supplied)
Two of our cases are cited in support of the statement last italicized above, *427 namely, Herd v. Herd, supra, and Smith v. Smith, 247 Ala. 213, 23 So. 2d 605.
That statement finds no support in the Herd case. In the opinion in that case it is said that the question for decision was single and clear-cut. It was whether cohabitation had to follow a marriage agreement, per verba de praesenti, that is, a present agreement to become husband and wife, in order to constitute a valid common-law marriage. The question was answered in the affirmative. But nothing was said in the opinion as to what constitutes cohabitation in the context in which that word was used. Certainly the opinion does not say that "sexual intercourse is an indispensable element of a common law marriage." We do not think that any holding in Smith v. Smith, supra, is supportive of the statement for which we have said it was cited in appellants' brief. In that case the appellee, a soldier, had testified that while he was on furlough, on one or two nights in July of 1943 he slept in the same bed with appellant, who claimed to be his common-law wife, but he denied having sexual relations with appellant on those nights. The opinion does contain observations which are to to the effect that the court did not believe appellee's statement that he had not had sexual intercourse with the appellant on his visit in July, 1943, in that he admitted occupying the same bed with appellant and both parties were young and there was no evidence that either of the parties was sexually deficient. But the reference to the sexual aspects of the case cannot be considered as indicating that unless sexual intercourse between the parties had been shown, this court would have concluded that a common-law marriage did not exist. Certainly the Smith case, supra, is not authority for the principle that there can be no valid common-law marriage where there is an absence of sexual intercourse between the man and woman irrespective of the age and physical infirmities of one or of both of them. In fact, we think the opinion in that case is perhaps subject to the opposite construction.
The only Alabama case which has come to our attention which, at least on first reading, tends to support appellants' position presently under consideration is Cox v. State, 117 Ala. 103, 23 So. 806, which arose under an indictment founded on § 4406 of the Criminal Code of 1896, which section read:
The statute just quoted was interpreted in the Cox case, supra, as (1) declaring the common law offense of bigamy [marries another] and (2) creating a second offense of continued cohabitation under the second marriage [continues to cohabit * * * in this state]. Apparently the second offense of continued cohabitation was created to allow prosecution in this state where the bigamous relationship was entered into in another state but was continued in this state.
The evidence was without conflict that the defendant, having a wife living in Alabama, married a second woman in Tennessee. Defendant and the second woman lived in Alabama as man and wife for an unstated length of time and then moved back to Tennessee. Five weeks before the indictment, defendant and the second woman returned to Alabama, again living as man and wife.
In defense of the charge against him, the defendant introduced evidence that due to a surgical operation, the second wife had for more than three years been incapable of sexual intercourse and that they had not had such intercourse in Alabama since their return to this state. Based upon this evidence, the defendant requested several instructions to the effect that continuous sexual intercourse is an *428 indispensable element of the statutory offense of bigamy as defined in § 4406 of the Criminal Code of 1896 and that failure to show such intercourse entitled the defendant to an acquittal. The charges were refused. This court in an opinion prepared by Mr. Chief Justice Brickell affirmed the refusal of those charges.
As we view the Cox case, the central issue there present was whether the defendant could be convicted of "continued cohabitation" during the period of time that he dwelled in this state with the second woman without having sexual intercourse with her. The statute of limitations had run as to the period of time during which the defendant previously lived in Alabama with the second woman and had sexual intercourse with her. In the opinion in Cox it is said: "We do not doubt that sexual intercourse is a necessary ingredient of the statutory offense." It is pointed out in the opinion that that statute from its original enactment had been associated with other statutes creating or declaratory of offenses of which such intercourse is the essential incriminating element. But the opinion goes further to say that, apart from this association of the statute with other statutes, the language of § 4406, supra, "continues to cohabit with such second husband or wife," implies or involves sexual intercourse, citing various definitions of the word "cohabit."
We do not intend to in any wise reflect upon the holding in Cox v. State, supra, but we do not think that holding is dispositive of the question with which we are presently confronted, namely, whether or not sexual intercourse is an indispensable element in a common-law marriage.
Cohabitation is not a mere gratification of sexual passion, or casual commerce between man and woman, and no presumption can elevate concubinage of whatever duration to the dignity of marriage. It has been said that parties may eat, live and sleep together as mistress and keeper without intention of entering into marriage. See Topper v. Perry, 197 Mo. 531, 95 S.W. 203, 114 Am.St.Rep. 777. It seems to us to follow that where a man and a woman have the present understanding that they are to live together as husband and wife and so live that the general public is led to believe they are in fact man and wife, it is not necessary in all cases for it to appear that the parties engaged in sexual intercourse where the validity of their claimed common-law marriage is questioned.
We think cohabitation as that word is used in our cases encompasses many factors which are necessarily involved when a man and a woman dwell together as man and wife. We think it may or may not, under the circumstances of the particular case, include sexual activity, but it does include such things as eating together, sharing household duties, payment of household expenses, holding themselves out to the public as man and wife, and all of the numerous aspects of day-to-day mutual existence of married persons. We have said that in determining whether a relationship between a man and a woman amounts to a common-law marriage, the courts must determine each case on its own particular facts, having regard to the circumstances of the parties.Turner v. Turner, supra.
Indeed, sexual activities are strongly indicative and are natural elements of the marital relationship. However, under certain circumstances they are not determinative of that relationship. As the human aging process progresses past a certain point, sexual activity decreases and eventually may disappear. Physical infirmities in people of advanced years may well prevent a man and woman from engaging in sexual intercourse. It seems reasonable to us to conclude that when sexual activity is no longer possible, because of age or physical infirmity, it is no longer *429 a persuasive element in the determination of whether or not a common-law marriage did in fact exist between a man and woman. Certainly, we do not think it should be held that sexual inadequacy or impossibility alone can prevent a common-law marriage where all of the other ingredients are shown to exist.
We realize that in our former decisions it has not been held that there can be a valid common-law marriage without coition, but it has not been held to the contrary, and we think that reason dictates that under circumstances where advanced age or physical infirmity are shown to have prevented the parties from engaging in sexual intercourse, the absence of that act alone should not operate to prevent a common-law marriage.
In this case, the trial court could only have reached the conclusion that no intercourse occurred between Dr. Beck and the appellee on the basis of testimony elicited from doctors and others similarly circumstanced to the effect that Dr. Beck, by reason of his illness, could not have engaged in the sexual act.
As we have stated above, we have not dealt with the sufficiency of the evidence in any respect. We cannot do so since the appellants have not complied with the provisions of Supreme Court Rule 9(b).
We hold that no question presented for our determination on this appeal can be answered in such a way as to justify a reversal of the decree of the trial court here under review. It follows, therefore, that the decree of the trial court is due to be affirmed. It is so ordered.
Affirmed.
HEFLIN, C. J., and MERRILL, HARWOOD and MADDOX, JJ., concur. | February 25, 1971 |
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