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6dceea78-d2e1-4c2d-9d7a-f0df39e35cf7 | Ex Parte Palmer | 574 So. 2d 44 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 44 (1990)
Ex parte Mattie PALMER.
(Re Mattie PALMER v. Pat BOLTON).
89-1327.
Supreme Court of Alabama.
November 16, 1990.
Gary P. Smith, Florence, for petitioner.
Thomas McCutcheon, Florence, for respondent.
STEAGALL, Justice.
We issued the writ of certiorari in this case to review the question whether the circuit court has jurisdiction to hear a complaint by a grandparent seeking visitation rights with a grandchild who has been adopted by a stepparent.
Raymond Carlton Bolton adopted his stepdaughter pursuant to an adoption judgment entered, with the consent of the child's natural father, by the probate court of Franklin County. Mattie Palmer, the child's paternal grandmother, subsequently filed a complaint in the Lauderdale Circuit Court, seeking visitation rights with her granddaughter.[1] The trial court entered a summary judgment against Palmer on the ground that the court lacked subject matter jurisdiction to grant the requested relief. The Court of Civil Appeals affirmed, holding that "the Probate Court of Franklin County is the only forum that has the *45 legal authority to permit Palmer to visit with her grandchild." Palmer v. Bolton, 574 So. 2d 42, 44 (Ala.Civ.App.1990).
In Ex parte Bronstein, 434 So. 2d 780 (Ala.1983), this Court, recognizing that the common law does not recognize any right of visitation by grandparents, stated:
434 So. 2d at 784. Concurring specially in that case, Justice Shores wrote:
After this Court's decision in Bronstein, the Alabama Legislature did address the issue of visitation rights of grandparents. The Legislature modified the common law principle and created rights of visitation for grandparents under certain circumstances. Ala.Code 1975, § 30-3-4, reads as follows:
Construing § 30-3-4 in pari materia with the other sections in that chapter, we hold, in accordance with the rules of statutory construction clarified by this Court in John Deere Co. v. Gamble, 523 So. 2d 95 (Ala. 1988), that the word "court" in § 30-3-4 was intended by the Legislature to be the circuit court. Matters affecting the best interests of the child, as well as parental rights relating to the child, have essentially been within the jurisdiction of the circuit court. The legislative use of the term "the court" could not have been intended to exclude the court of general jurisdiction. Applying § 30-3-4(c) to the facts in this case, we hold that the circuit court did have jurisdiction to consider Palmer's complaint.
We, therefore, reverse the Court of Civil Appeals' judgment holding that the circuit court was without jurisdiction to hear Palmer's complaint and we remand this cause for action consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
[1] Pat Bolton, the child's mother and the defendant in this case, is a resident of Lauderdale County. | November 16, 1990 |
e721dd4b-89a7-442a-afcc-274ac5060a55 | Ex Parte Malone | 575 So. 2d 106 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 106 (1990)
Ex parte Reuben Max MALONE.
(Re Reuben Max MALONE v. CITY OF SILVERHILL).
89-897.
Supreme Court of Alabama.
November 16, 1990.
James W. May, Gulf Shores, for petitioner.
Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for respondent.
ALMON, Justice.
Reuben Max Malone was convicted of driving under the influence of alcohol. His conviction was affirmed by the Court of Criminal Appeals. Malone v. City of Silverhill, 575 So. 2d 101 (Ala.Crim.App.1989). This Court issued the writ of certiorari to determine if the admission of evidence of *107 Horizontal Gaze Nystagmus ("HGN") test results, without a proper predicate, was harmless error.
A lengthy statement of the facts is unnecessary because of the thorough statement and detailed description of the HGN test contained in the opinion of the Court of Criminal Appeals.
The Court of Criminal Appeals held that the HGN test satisfied the standards for the admissibility of novel scientific evidence set out in Frye v. United States, 293 F. 1013 (C.A.D.C.1923)[1], but that the State's failure to lay a predicate showing either the test's reliability or the scientific principles upon which it is based rendered the admission of evidence regarding that test error. 575 So. 2d at 104. However, the court held that that error did not require a reversal of Malone's conviction because the other evidence supporting his conviction was "overwhelming." 575 So. 2d at 105.
We do not agree. As this Court stated in Ex parte Lowe, 514 So. 2d 1049, 1050 (Ala. 1987):
The problem created by the improper admission of the HGN evidence is due to the scientific nature of the test and the disproportionate impact it might have had on the jury's decision-making process. As noted by the Court of Criminal Appeals, a jury "`might give undue weight to [HGN] evidence since it may appear to lend the certainty of an exact discipline to problematic factfinding.'" 575 So. 2d at 104 (quoting G. Lilly, An Introduction to the Law of Evidence 407 (1978). In light of these considerations and the adverse effect that the erroneous admission of the HGN test evidence might have had on Malone's right to a fair trial, the judgment of the Court of Criminal Appeals is reversed, and the cause is remanded. The Court of Criminal Appeals is instructed to remand this cause for a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
[1] This Court has not been presented with sufficient evidence regarding the HGN test's reliability or its acceptance by the scientific community to determine if the Court of Criminal Appeals correctly determined that the test meets the Frye standards. See Sides v. State, 574 So. 2d 859 (Ala.1990). | November 16, 1990 |
8a8b1794-a568-49d1-98c2-af348c026c95 | Harper v. Mason | 571 So. 2d 295 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 295 (1990)
Benton HARPER
v.
Robert MASON.
89-927.
Supreme Court of Alabama.
November 16, 1990.
David T. Hyde, Jr., Evergreen, for appellant.
Windell C. Owens and Mickey Womble, Monroeville, and Paul M. Harden, Evergreen, for appellee.
MADDOX, Justice.
Robert Mason is the proponent of the lost will of Jessie H. Mason. The trial court held that Jessie did not have the requisite mental capacity when she had attempted to revoke that will and that the copy offered by Robert Mason had been properly proven and should be admitted to probate. The only issue is whether the trial court erred in holding that Jessie had lacked the mental capacity necessary to revoke that will.
The requisites for probating a lost or destroyed will were set out in Barksdale v. Pendergrass, 294 Ala. 526, 529, 319 So. 2d 267, 269-70 (1975):
In the present case, only requirement (3) is in dispute; specifically, the issue is whether, in December 1984, Jessie had the necessary mental capacity to revoke her 1983 *296 will, a copy of which was propounded by Robert Mason.
The record tends to show the following: Joe B. Nix, Jr., was the attorney who drafted Jessie's will in August 1983. Jessie came to Nix's office in December 1984 and destroyed the original of the will. At that time, Jessie was 81 years old. A few days later, Jessie executed a new will. Jessie died in March 1986. The December 1984 will was held invalid in a separate case. Nix and his secretary both testified that during her December 1984 visit Jessie appeared to be competent. Robert Mason testified that Jessie, his aunt by marriage, had lived in a trailer at his house from September 1983 to October 1984 and that during that period, her mental capacity had deteriorated. He stated that Jessie became confused at times, would park her car in the middle of the street, would misplace things, would hide money from herself, and would have him throw out things, for example, a vacuum cleaner, and then have him retrieve them from the garbage. It was Robert Mason's opinion that Jessie could not handle her business affairs as of October 1984.
After Jessie moved out of the trailer at Robert Mason's house in October 1984, she moved into an apartment. Her neighbor and long-time friend, Mildred Sasser, testified that she saw Jessie every day and that Jessie was confused every time Sasser saw her. Sasser also testified that in November and December 1984, as often as twice a week, Jessie had hallucinations in which she would see police and other people fighting outside her apartment when, in fact, there was no one there.
The trial court heard the evidence in this case without a jury. This Court has stated:
Jackson v. Weiland, 519 So. 2d 1341, 1343 (Ala.1988).
"A person may make a valid will even though he or she is not competent to transact the ordinary business of life." Barnes v. Willis, 497 So. 2d 90, 92 (Ala. 1986), citing Stubbs v. Houston, 33 Ala. 555 (1859). Thus, evidence showing that one cannot conduct ordinary business affairs is not sufficient evidence to show lack of testamentary capacity. However, in this case, the evidence is more than just that Jessie could not conduct her business affairs; there was evidence of hallucinations and irrational conduct. While the evidence that Jessie lacked the testamentary capacity to revoke her 1983 will is certainly not overwhelming, it is strong enough that, under the ore tenus rule, this Court cannot say that the trial court's judgment is palpably wrong.
The judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
JONES and ADAMS, JJ., dissent. | November 16, 1990 |
1ed9652f-c600-49d6-b85f-992e03567953 | Gilmer v. Salter | 235 So. 2d 813 | N/A | Alabama | Alabama Supreme Court | 235 So. 2d 813 (1970)
Ann GILMER, a Minor, etc.
v.
Joseph SALTER.
3 Div. 446.
Supreme Court of Alabama.
May 15, 1970.
*814 Tipler, Fuller & Melton, Andalusia, for appellant.
Windell C. Owens, Monroeville, for appellee.
McCALL, Justice.
This action was brought by Ann Gilmer, a minor, fifteen years of age, pro ami, claiming damages for personal injuries, proximately resulting allegedly from the negligent operation of a pickup truck by the defendant Joseph Salter. After the court overruled the defendant's demurrer to the single count in simple negligence, the defendant pleaded "in short by consent."
When the rear end collision complained of occurred, the plaintiff was a passenger riding on the front seat in an automobile being driven by her mother. Both vehicles were moving ahead in the same direction in their right-hand lane of traffic. After the mother had given a signal, but before she started to turn into the drive of her home, her automobile was struck from behind by the overtaking pickup truck that the defendant was driving. The plaintiff complained of receiving injuries to her back and kidney, bruises over her body, and general stiffness and soreness. The issues were submitted to a jury which returned a verdict in favor of the defendant. The plaintiff filed a motion for a new trial which was overruled by the court.
The plaintiff has appealed and first argues that giving the appellee's following requested charge 1 constituted error:
The court might have refused this charge without error, but giving it did not constitute error. In Birmingham Ry., Light & Power Co. v. Moore, 148 Ala. 115, 42 So. *815 1024, the court considered an identical charge numbered 5 and a majority held that the trial court committed error in refusing charge 5, requested by the defendant. The judgment was reversed, and the case remanded. Justice Denson and the then Chief Justice Weakley dissented, however, and were of the opinion that the only purpose that such a charge might serve is to secure a mistrial. They were also of the opinion that the two cited supporting authorities in the court's opinion, and other cases like them on the point under consideration, should not be adhered to in the future, at least, should be modified, so as to hold that such a charge is misleading, and its refusal should not require a reversal.
Then Birmingham Ry., Light & Power Co. v. Goldstein, 181 Ala. 517, 61 So. 281, followed, holding that a charge (numbered 8), almost identical with charge 1 in the present case, and having the same legal effect, was refused without error, that the majority opinion in Moore's case, supra, was wrong, and that it should be overruled and it was overruled, but the court did not hold it error to give such a charge. The court held that the charge possessed such misleading tendencies that the trial court was justified in refusing to give it. The court said however that it was not prepared to say that it would reverse the case if the trial court had given the charge, upon the ground of its misleading tendencies, because the opposite party could or should, in such cases, have prevented or counteracted these misleading tendencies by counter charges.
Speaking to the refusal of a charge, requested by the defendant in City of Birmingham v. Bowen, 254 Ala. 41, 47 So. 2d 174, which is almost word for word, with charge 1 in this case, the court stated that its refusal was without error, because the charge was substantially covered by given written charges and the oral charge of the court. But the court also stated in that opinion:
Besides the criticisms leveled at this type of charge in the dissenting opinion of the Moore case, supra, and by the court in Birmingham Ry., Light & Power Co. v. Goldstein, supra, the case of Granberry v. Gilbert, 276 Ala. 486, 163 So. 2d 641, holds that the refusal of the same charge was without error and that the charge was susceptible of conveying the impression that the plaintiff's right to a recovery did not depend upon the findings by the jury on the issues of fact submitted to them, but might be defeated if a juror was satisfied from the evidence that "she (the plaintiff) ought not to recover," without regard to whether the law, as applicable to the facts as found from the evidence, would justify such a conclusion, citing North Alabama Traction Co. v. Taylor, 3 Ala.App. 456, 459, 57 So. 146.
In view of these decisions holding that the charge's greatest fault is its misleading tendency, we are not willing to reverse the case because it was given.
We have repeatedly held that if a charge is deemed misleading, an explanatory charge should be requested, and the giving of misleading charge does not necessitate a reversal. Russell v. Relax-A-Cizor Sales, Inc., 274 Ala. 244, 147 So. 2d 279; Blakeney v. Alabama Power Co., 222 Ala. 394, 133 So. 16; Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89; First National Bank of Mobile v. Ambrose, 270 Ala. 371, 119 So. 2d 18; Crawford Johnson & Co. v. Duffner, 279 Ala. 678, 189 So. 2d 474.
Charges 2 and 3 given at the defendant's request read respectively as follows:
Charge 2 may be an improper charge because it hypothesizes upon "belief" from the evidence, rather than on reasonable satisfaction from the evidence. However, a judgment will not be reversed because of the refusal or giving of "belief" charges. New York Times Co. v. Sullivan, 273 Ala. 656, 144 So. 2d 25, rev'd on other grounds, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686; Prince v. Bryant, 274 Ala. 134, 145 So. 2d 837; Locklear v. Nash, 275 Ala. 95, 152 So. 2d 421; Deamer v. Evans, 278 Ala. 35, 175 So. 2d 466.
Likewise charge 3 is improper because of employing the conditional clause "if the jury should find," instead of hypothesizing on the jury's being reasonably satisfied from the evidence. The court has adversely criticized this type of charge, but has held that a judgment will not be reversed because of the refusal or giving of "find" or "belief" charges. General Finance Corp. v. Bradwell, 279 Ala. 437, 186 So. 2d 150; New York Times Co. v. Sullivan, supra; Hatcher v. Camp, 279 Ala. 475, 187 So. 2d 232.
Charges 2 and 3 seek to affect the amount of damages in event of a recovery by the plaintiff. Since there was no verdict for the plaintiff, the giving of the two charges would constitute only harmless error. Graves v. Wildsmith, 278 Ala. 228, 233, 177 So. 2d 448; Thompson v. Magic City Trucking Service, 275 Ala. 291, 154 So. 2d 306. There was no reversible error in giving either of these charges.
The appellee's requested charge 4 which the court gave, reads as follows:
The plaintiff argues that the charge omits the word "proximate" and the giving of it constituted error to reverse, citing Terry v. Nelms, 256 Ala. 291, 54 So. 2d 282, and Crocker v. Lee, 261 Ala. 439, 74 So. 2d 429. These two cases hold that to be a defense the plaintiff's contributory negligence must have proximately contributed to his injury, and that a given charge on contributory negligence must hypothesize upon that negligence as proximately contributing to the plaintiff's injury, or be so fatally omissive as to constitute error to reverse.
This charge 4 does not rely on contributory negligence as a defense, as was the situation in the Terry and Crocker cases, supra, but simply instructs the jury that the burden is on the plaintiff to show that the defendant was guilty of a breach of duty before the plaintiff can recover against him. Therefore, if it be error to omit "proximate cause" from charge 4, such would enure to the plaintiff's benefit, because it lightens the plaintiff's burden of proof, requisite for her recovery, which she cannot complain of. The gist of the charge is:
Further we point out that in Barnes v. Haney, 280 Ala. 39, 189 So. 2d 779, the court considered a similar charge to the one now before us, but containing the "proximate result" factor, and in comparing it with one identical (except for gender) to that now before us, said:
The appellant's next ground for reversal is that the present action was brought against an individual defendant, who is alleged to have driven the pickup truck on the occasion complained of, and that his given charge 6 uses the wording "driver of defendant's automobile" and "defendant's driver" in place of "defendant." The appellant argues that this mistake makes the charge so grossly misleading that it would appear to the jury that the defendant himself was not driving the pickup involved in the accident. We are unable to find merit in this contention.
In speaking of a requested charge bearing some clerical errors, we said in Harris v. Basden, 162 Ala. 367, 370, 50 So. 321, 322:
There was no reversible error in giving the defendant's requested charge 6.
The appellant next argues that her motion for a new trial should have been granted because of newly discovered evidence which would establish the plaintiff's case, and which was not presented in the trial through no fault of the plaintiff.
The newly discovered evidence is in an affidavit attached to the plaintiff's motion, but from aught appearing this testimony is not admissible. The affiant was not an eyewitness to the accident, but saw the vehicles pass his store in Evergreen prior to the collision. Their relative position to one another or how far the store was from the point of impact is not revealed. No causal connection is shown between what this affiant saw and what occurred at the scene of the accident.
While appellant avers that the proposed testimony was not presented in the trial through no fault of hers, it does not appear from the motion that the appellant was uninformed of the proposed testimony until after the trial, or, that she could not have discovered it by the exercise of due diligence before the trial.
The granting or denying of a new trial on the ground of newly discovered evidence rests largely in the trial court's discretion, and its order will not be reversed on appeal, unless it appears that the court violated some legal right of the appellant, or abused its discretion; the presumption being that the discretion was properly exercised. Birmingham Electric Co. v. Toner, 251 Ala. 414, 37 So. 2d 584; Forest Investment Corp. v. Commercial Credit Corp., 271 Ala. 8, 122 So. 2d 131; Morris v. Yancey, 272 Ala. 549, 132 So. 2d 754. It is not clear to us that the trial court abused its discretion in denying appellant's motion for a new trial.
The final ground of appellant for reversing the case involves injecting automobile liability insurance coverage into the trial before the jury. The record discloses that appellant's attorney first drew attention to the subject of insurance by *818 commencing his cross-examination of the defendant as follows:
"Q Mr. Salter have you given anybody a statement about this?
"Q What insurance company?
"A Farm Bureau.
"Q Is that your insurance company?
"A Yessir (sic), my father's.
"Q On the car?
"A Yes sir.
"MR. TIPLER: I believe that's all."
We next find from the record where the trial court sustained defendant's objection to the following remarks of plaintiff's attorney made in final argument to the jury: "that it will not be this defendant that any money is gotten out of in this case." The plaintiff's attorney then contended that his statement was in answer to alleged statements made by the defendant's attorney to the effect "that this suit was brought purely because these people wanted to try to get money out of this boy," meaning the defendant, Salter. We do not find where in the record the defendant's attorney made any such statement. But notwithstanding this, and plaintiff's attorney's insistence that he was only going to tell the jury who the money was to be gotten from, how any judgment will be paid, or who will pay it are not issues in the case. Alabama Power Co. v. Smith, 273 Ala. 509, 525, 142 So. 2d 228. There was no evidence in the trial that a liability insurance carrier would pay any judgment that the jury might render against the defendant. We think that the court ruled correctly. Besides much discretion is allowed the trial court with respect to remarks made in final argument by counsel; Phillips v. Ashworth, 220 Ala. 237, 241, 124 So. 519; and the appellate court will not interfere where this discretion is not abused; Southern Ry. Co. v. Jarvis, 266 Ala. 440, 446, 97 So. 2d 549; Alabama Power Co. v. Smith, supra. There was no abuse in this instance.
The judgment is affirmed.
Affirmed.
LIVINGSTON, C. J., and SIMPSON, COLEMAN, and BLOODWORTH, JJ., concur. | May 15, 1970 |
24576139-fb52-48b0-bfa3-416444038058 | Sheehan v. Bowden | 572 So. 2d 1211 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1211 (1990)
Robin SHEEHAN, et al.
v.
Frances BOWDEN.
Robin SHEEHAN, et al.
v.
E.B. VARDAMAN.
Robin SHEEHAN and Kitty Quailes
v.
Tommy L. ROSE.
89-903, 89-904 and 89-905.
Supreme Court of Alabama.
November 30, 1990.
William T. Faile, Selma, for appellants.
Wyman O. Gilmore, Jr., Grove Hill, for appellees.
HOUSTON, Justice.
This is a consolidation of four suits brought under Alabama's Deceptive Trade Practices Act ("the Act"), Ala.Code 1975, § 8-19-1 et seq. The trial court directed verdicts for three of the plaintiffs[1] as follows:
Tommy L. Rose against Robin Sheehan and Kitty Quailes jointly and severally for $9,000;
E.B. Vardaman against Robin Sheehan, Kitty Quailes, and Billie Jean Hardy jointly and severally for $9,000; and
Frances Bowden against Robin Sheehan, Kitty Quailes, and Billie Jean Hardy jointly and severally for $13,500.
The court entered judgments on those verdicts. We reverse and remand.
All of the plaintiffs were involved in, and lost money in, an "airplane" scheme known as "People Helping People" ("the scheme").[2] An airplane "flew" based on the inducement of others to pay $1,500 *1212 each to come aboard as "passengers." An airplane was full when it consisted of eight passengers, four "crew members," two "co-pilots," and one "pilot." Once all of the airplane's "seats" were filled, the pilot received $12,000 and rotated out of the scheme. The only purchase or sale made through this scheme was the right to participate in the chance to receive $12,000, which could be fulfilled only if the appropriate number of people paid their $1,500.[3]
This action was commenced on April 7, 1987; therefore, the applicable standard of review is the "scintilla of evidence" rule. Ala.Code 1975, § 12-21-12. The plaintiffs alleged that the scheme was a "pyramid sales structure" as defined by the Act and that the defendants had violated the Act by inducing the plaintiffs to participate in the scheme. All of the defendants answered, alleging, among other things, that the scheme was a gambling operation and not a "pyramid sales structure."
The trial court found as a matter of law that the scheme did fall within the purview of the Act, and, in fact, was a "pyramid sales structure." We agree. Section 8-19-5 provides, in pertinent part, as follows:
Section 8-19-3(8) defines "trade or commerce" as follows:
Furthermore, § 8-19-3(3) defines "goods" as follows: "Goods. Includes but is not limited to any property, tangible or intangible, real, personal, or any combination thereof, and any franchise, license, distributorship, or other similar right, privilege, or interest." The plaintiffs sued under the authority of § 8-19-10:
Section 8-19-3(2) defines "consumer" as: "Any natural person who buys goods or services for personal, family or household use."
It is undisputed that an airplane flew "primarily upon the inducement of additional persons." Also, there can be no question that the commodity offered through the scheme was a "right, privilege, or interest" and thus qualified as "goods" under § 8-19-3(3). With that definition of "goods," it is clear that this enterprise was operated "in the conduct of any trade or commerce." Thus, we hold that the Act affirmatively encompasses the scheme.
The defendants allege further that if the scheme does fall within the purview of the Act, then the plaintiffs failed to comply with the Act because the defendants were not served with "a written demand for *1213 relief" before the filing of this action. Section 8-19-10(e) provides, in pertinent part:
Subsection (e) also provides exceptions to its demand provision, as follows:
It is undisputed that no demand was served on any defendant at any time. Accordingly, for the directed verdicts to be proper, the plaintiffs had the burden of showing, as a matter of law, that a demand was not required because each defendant fell within one of the two exceptions of subsection (e). Likewise, for the demand requirement and its exceptions to have any rational effect, the time to test whether either of the exceptions to the demand requirement existed must coincide with the 15-day deadline prescribed by the Act. The demand requirement is contained in § 8-19-10 ("Private right of action") and not within § 8-19-13 ("Defense"); therefore, the plaintiff has the burden of proving compliance.
For the sake of clarity, we address the demand issue one defendant at a time:
It is undisputed that at the time of her involvement with the scheme, Ms. Quailes owned real property in the state of Alabama, but that at the time of her trial testimony she did not. In fact, at trial, her undisputed testimony, in pertinent part, was as follows:
Her testimony, taken in the light most favorable to her, as the nonmovant, points to the existence of a fact question as to whether she owned real property within the state 15 days prior to the filing of these suits against her. Even if we assume that Ms. Quailes did not own real property in the state, that would not be dispositive of whether she "[kept] assets within the State" 15 days prior to the filing of these actions against her. Also, when asked whether she was a partial owner of a business in Alabama known as New Creations, Ms. Quailes responded that she was. But, again, there is no proof that she maintained a place of business in the state 15 days prior to filing this action.
Thus, we hold that there is a fact question as to whether Ms. Quailes "[kept] assets within the State" and whether she "maintain[ed] a place of business" here. Because of that fact question on the demand issue, the verdicts for Rose, Vardaman, and Ms. Bowden against Ms. Quailes were erroneously directed.
Ms. Sheehan's testimony, in pertinent part, was as follows:
This, the only testimony about Ms. Sheehan's "place of business" and her "assets," does not conclusively prove that, as a matter of fact, 15 days prior to April 7, 1987, she "[did] not maintain a place of business or [did] not keep assets within the State." Certainly the term, "assets" incorporates more than home ownership. Likewise, whether Ms. Sheehan maintained a place of business within the state at the time of trial is not determinative of the question whether she did so before and up until the deadline prescribed by the Act before which demand must be made. Viewing all the evidence about Ms. Sheehan in a light most favorable to her, as the nonmovant, *1214 we find that a question of fact exists as to whether Ms. Sheehan should have been served with a demand. Accordingly, the directed verdicts for Rose, Vardaman, and Ms. Bowden against Ms. Sheehan were erroneously directed.
The only evidence about Ms. Hardy's assets or business consisted of her testimony, which follows, in pertinent part:
Ms. Hardy's testimony, viewed in the light most favorable to her, as the nonmovant, hardly serves to prove, as a matter of fact, that she "[did] not maintain a place of business or [did] not keep assets within the State" at the time required by the Act for the plaintiffs to serve a demand on Ms. Hardy. Accordingly, the verdicts for Vardaman and Bowden against Ms. Hardy were erroneously directed.
Our thorough review of the record leads us to conclude that a question of fact exists as to whether each defendant fell within one of the two exceptions to the demand provision of the Act.[4] Accordingly, we reverse the judgments of the trial court and remand these cases for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The trial court also directed verdicts for three defendants, Robin Sheehan, Billie Jean Hardy, and Tina Huffman, against one of the plaintiffs, Lamar Travis; however, that ruling is not before us.
[2] Each participant was known by a code name. The following code names were revealed at trial:
Tommy Rose: Yard Guard and Moo Cow
Robin Sheehan: Poo Mama and Tornado
Frances Bowden: C Note
Kitty Quailes: May May
Billie Jean Hardy: CJ
[3] We note that there are variations on the way each "airplane" technically operates; however, those variations are immaterial to the resolution of this case.
[4] We note the other arguments and issues presented by both parties in their briefs. Because of our resolution of the demand issue, however, we pretermit discussion of those arguments. | November 30, 1990 |
a04bd333-39ae-442b-a502-c97d6b83df08 | Ex Parte Great Escapes Travel, Inc. | 573 So. 2d 278 | N/A | Alabama | Alabama Supreme Court | 573 So. 2d 278 (1990)
Ex parte GREAT ESCAPES TRAVEL, INC., Jan Panky Daniel, and Jack Daniel.
(Re Nancy HECKER v. GREAT ESCAPES TRAVEL, INC., Jan Panky Daniel, and Jack Daniel v. TRANS WORLD AIRLINES, INC.)
89-1648.
Supreme Court of Alabama.
December 21, 1990.
*279 Jerry D. Baker and Dwight M. Jett, Jr., Huntsville, for petitioners.
Patrick H. Graves, Jr. and Stuart M. Maples of Bradley, Arant, Rose & White, Huntsville, for respondent Nancy Hecker.
H. Harold Stephens of Lanier, Ford, Shaver & Payne, Huntsville, for respondent Trans World Airlines, Inc.
ALMON, Justice.
This petition for a writ of mandamus requests a stay of discovery and all proceedings before the circuit judge in a civil action in which the petitioners are defendants. A related criminal prosecution against the individual petitioners is pending, and the individual petitioners contend that their privilege against self-incrimination will be violated unless this Court grants the relief requested. U.S. Const., amend. V; Ala. Const.1901, art. I, § 6.
In 1989, Jan Panky Daniel was the managing agent and her husband Jack Daniel was the majority stockholder and president of Great Escapes Travel, Inc., a licensed travel agency. On September 22, 1989, Nancy Hecker filed a civil action against the petitioners. At its April 1990 term, the Madison County grand jury returned an indictment against the Daniels for theft of currency in excess of $1000 from Mrs. Hecker.
Mrs. Hecker's complaint alleges the following: In September 1988, she presented to Mrs. Daniel a proposal for a group trip to Italy to take place in September 1989, and Mrs. Daniel agreed for Mrs. Hecker to act as agent for Great Escapes in arranging the tour. Mrs. Hecker booked a number of participants for the tour, received their payments, and deposited the money into a bank account that she and Mrs. Daniel had opened. She made similar arrangements for a December 1989 tour to New York City. By July 1989 the tour participants for both tours had fully paid, and there was more than $57,000 in the account. By threatening to withhold Great Escapes' ticketing services, Mrs. Daniel forced Mrs. Hecker to relinquish control of the bank account. When the time came in August 1989 to pay the airline and the provider of a ground tour in Italy, Great Escapes refused to pay. Mrs. Hecker paid these items, totalling more than $50,000, from her personal funds.
In answer to Mrs. Hecker's complaint, the petitioners filed a general denial. Apparently, they later filed a counterclaim, but it is not included in the materials presented on this petition. They also filed, on June 15, 1990, a third-party complaint against Trans World Airlines, Inc. ("TWA"). On June 27, 1990, the petitioners filed a motion to stay the proceedings, based on their privilege against self-incrimination. They state that the trial court denied their motion to stay on August 13, 1990, but the exhibits attached to the petition do not reflect that an order denying the motion was entered. On August 9, counsel for TWA filed notices of taking the depositions of Great Escapes[1] and the Daniels on August 15. Trial was scheduled for August 27. On August 10, the petitioners filed a motion to stay the taking of depositions, but the trial court denied that motion on August 13. The petitioners filed this petition on August 14, and, on August 15, this Court stayed the trial court proceedings and ordered answers and briefs.
In answer to the petitioners' arguments that the trial court's refusal to stay the *280 proceedings violates their privilege against self-incrimination, Mrs. Hecker and TWA make several arguments. Mrs. Hecker argues that the writ of mandamus should not issue because, she argues, (1) the trial court has not abused its discretion, (2) the petitioners have waived their privilege by participating in previous discovery, and (3) the trial court has not ordered the petitioners to answer all questions regardless of the incriminating effect, as she says the trial courts had done in similar cases where this Court has issued writs of mandamus. TWA argues similar points and also argues that Great Escapes has no Fifth Amendment privilege and therefore cannot object to the production of corporate documents;[2] that the Daniels have improperly asserted a blanket privilege against testimony instead of objections to specific questions, as TWA says the cases have required; and that the petitioners should not be allowed to assert a claim against TWA shortly before trial is scheduled and then refuse to participate in discovery.
This Court has decided similar cases in Ex parte White, 551 So. 2d 923 (Ala. 1989), and Ex parte Baugh, 530 So. 2d 238 (Ala.1988). In both cases, the Court granted relief to petitioners seeking stays during the pendency of related criminal prosecutions against them. As Mrs. Hecker and TWA correctly say, the trial courts in those cases had ordered Baugh and White to answer specific questions as to which they had raised their privilege against self-incrimination. The fact that the Daniels have not raised the privilege as to specific questions is not dispositive, however; this Court stayed all proceedings in both Baugh and White pending the criminal prosecutions. A party might make a clearer showing of potential self-incrimination by objecting to particular questions, but there is no doubt from the facts presented on this petition that most of the material facts in this civil action would also be material and potentially incriminating in the criminal prosecution.
On the other hand, the respondents' argument that the Daniels have waived the privilege presents a compelling reason why the writ should not issue. Counsel for Mrs. Hecker deposed both Mr. and Mrs. Daniel, apparently before the indictment issued. They argue that TWA cannot now depose them because, they say, they did not waive their privilege by giving the earlier deposition and they did not know at the time of the earlier depositions that an indictment would issue; therefore, they say, by giving those depositions, they could not have been making a "knowing, intelligent, and voluntary" waiver of the privilege. See Ex parte White, supra, at 925. They state that they had no way of knowing that criminal charges might issue and were without notice of that possibility until they were arrested on May 23, 1990.
The pendency of criminal charges is not necessary to the assertion of the privilege:
Ex parte Baugh, supra, at 240, n. 2, citing Wehling v. Columbia Broadcasting System, 608 F.2d 1084 (5th Cir.1979).
We cannot evaluate the Daniels' claim that they were without notice of the possibility of criminal charges without having the depositions before us. If their testimony was so obviously incriminating that a reasonable person would recognize that to give such testimony would be incriminating, that testimony might well constitute a waiver of the privilege. On the other hand, if the testimony was not incriminating, no waiver occurred. Furthermore, any waiver would extend only to the matters brought out in that testimony. For a good discussion of the law on "whether there has been a waiver, and to what extent," in such circumstances, see Femia v. McLaughlin, 126 F.R.D. 426, 430 (D.Mass.1989).
*281 Because the depositions are not before us, we are not in a position to grant the petition. Upon the lifting of our temporary stay of proceedings, the trial court should consider the effect of the depositions that have been given in light of the cases cited herein and determine whether a waiver has occurred and whether the action should proceed.
WRIT DENIED; STAY LIFTED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] The notice did not name any officer or agent as the proposed deponent.
[2] The Daniels respond to this argument by saying that they, as principal stockholders and officers of Great Escape, are entitled to object to the production of the corporate records. In view of the posture of this case, discussed infra, we need not address this issue. | December 21, 1990 |
14395550-d5d0-44bc-80fe-c8673c7a708b | Ex Parte Fowler | 574 So. 2d 745 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 745 (1990)
Ex parte Barbara Berry FOWLER.
(In re STATE of Alabama v. Barbara Berry FOWLER).
89-1799.
Supreme Court of Alabama.
December 7, 1990.
Rehearing Denied February 8, 1991.
*746 David Cromwell Johnson and Leila Hirayama of Johnson & Cory, Birmingham, and William H. Atkinson, Hamilton, for petitioner.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
HOUSTON, Justice.
The petitioner, Barbara Berry Fowler, seeks a writ of mandamus directing Judge Clatus Junkin of the 24th Judicial Circuit to grant her motion for a change of venue. The writ is denied.
Ms. Fowler was indicted by a Fayette County grand jury for the murder of her husband, a pharmacist and prominent citizen of Fayette County. Contending that it was impossible for her to obtain a fair trial in Fayette County due to extensive pretrial publicity that had surrounded the case there, Ms. Fowler moved for a change of venue pursuant to Ala.Code 1975, § 15-2-20. The trial judge denied the motion. The Court of Criminal Appeals denied her request for a writ of mandamus directing the trial judge to transfer the case out of Fayette County, and she was convicted after a jury trial. The Court of Criminal Appeals reversed the conviction on the ground that prejudicial evidence had been improperly admitted and remanded the case for a new trial. Fowler v. State, 562 So. 2d 666 (Ala.Crim.App.1989). Again Ms. Fowler moved for a change of venue, arguing that she could not obtain a fair trial in Fayette County. The trial judge, stating his concern over the extent of the publicity that had been generated during the first trial, granted her motion and transferred the case to neighboring Lamar County for trial. Ms. Fowler moved the trial judge to reconsider his order transferring the case to Lamar County, arguing that the publicity surrounding the case had been just as great in Lamar County as it had been in Fayette County and, therefore, that the case should be moved to another county. The trial judge denied that motion. The Court of Criminal Appeals denied Ms. Fowler's request for a writ of mandamus directing the trial judge to transfer the case out of Lamar County. She then sought mandamus review in this Court pursuant to Rule 21, A.R.App.P.
Ms. Fowler contends that her motion is due to be granted because, she says, Lamar County is so close to Fayette County that it too has been so saturated with prejudicial publicity concerning the case that a fair trial there would be impossible. The State contends that § 15-2-20 specifically authorizes a de novo review of the trial judge's order on appeal, that such a review is an adequate means by which any error may be rectified, and, therefore, that a writ of mandamus should not issue. The State argues in the alternative that even if mandamus were an appropriate means of reviewing a trial judge's order denying a motion for a change of venue, the writ could not issue in this case because, it says, the evidence does not show that a change of venue is warranted. We agree with the State on both arguments.
Article I, § 6, Alabama Constitution of 1901, provides:
Section 15-2-20 reads, in pertinent part, as follows:
Section 15-2-24 provides:
(Emphasis added.) In Ex parte Lancaster, 206 Ala. 60, 89 So. 721 (1921), this Court, construing the provisions quoted above, held that the circuit court of the county in which an offense is committed has exclusive jurisdiction of the offense, unless that court is divested of jurisdiction upon the removal of the case under §§ 15-2-20 and 15-2-24 to the nearest county free from prejudice.
It is well established in Alabama that a writ of mandamus, which is a drastic and extraordinary remedy, will not issue when there is an adequate remedy by appeal, and that the writ cannot be used as a substitute for appellate review. Echols v. Housing Authority of the City of Auburn, 377 So. 2d 952 (Ala.1979). The reason for this rule was succinctly stated by then-Justice Livingston in Koonce v. Arnold, 244 Ala. 513, 514, 14 So. 2d 512, 515 (1943):
Section 15-2-20 affords Ms. Fowler an adequate remedy by appeal; therefore, a writ of mandamus is not an appropriate means of reviewing the trial judge's order in this case. See, also, 52 Am.Jur.2d Mandamus § 50 (1970).
We feel that it is appropriate to note that the State is correct in its contention that the writ would have to be denied in this case even if mandamus were the proper means of reviewing the trial judge's order. An accused is entitled under § 15-2-20 to a change of venue if he can demonstrate that he cannot receive a fair trial in the county where he is to be tried. It is well established in Alabama, however, that the existence of pretrial publicity, even if extensive, does not in and of itself constitute a ground for changing venue and thereby divesting the trial court of jurisdiction of an offense. Beecher v. State, 288 Ala. 1, 256 So. 2d 154 (1971), rev'd on other grounds, 408 U.S. 234, 92 S. Ct. 2282, 33 L. Ed. 2d 317 (1972); see, also, the cases annotated at § 15-2-20. In Nelson v. State, 440 So. 2d 1130 (Ala.Crim.App.1983), the Court of Criminal Appeals correctly noted that jurors do not have to be totally ignorant of the facts and issues involved in a particular case in order to reach an unbiased verdict. Quoting Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S. Ct. 1639, 1642-43, 6 L. Ed. 2d 751, 756 (1961), the court further noted:
"`In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.'"
440 So. 2d at 1131. To satisfy her burden of proof in the present case, Ms. Fowler had to establish that prejudicial pretrial publicity has so saturated Lamar County as to have a probable prejudicial impact on the prospective jurors there, thus rendering the trial setting inherently suspect. This required a showing that a feeling of deep and bitter prejudice exists in Lamar County as a result of the publicity. Holladay v. State, 549 So. 2d 122 (Ala.Crim.App.1988), *748 aff'd Ex parte Holladay, 549 So. 2d 135 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 575, 107 L. Ed. 2d 569 (1989).
Whether to change venue is discretionary with the trial judge. Mathis v. State, 280 Ala. 16, 189 So. 2d 564 (1966), cert. denied, 386 U.S. 935, 87 S. Ct. 963, 17 L. Ed. 2d 807 (1967). In determining whether there has been an abuse of that discretion, an appellate court reviews the trial judge's order de novo, without any presumption in favor of that order. § 15-2-20; Gilliland v. State, 291 Ala. 89, 277 So. 2d 901 (1973); see, also, Wilson v. State, 480 So. 2d 78 (Ala.Crim.App.1985), and the cases cited therein.
The record shows that there has been extensive publicity surrounding this case in Fayette County and that, as Ms. Fowler contends, some of that publicity has spilled over into Lamar County. Ms. Fowler introduced the results of a survey of 200 potential jurors in Lamar County. A majority of those who participated in the survey stated that they had knowledge of the case. Those who stated that they were aware of the case also stated that they had acquired their knowledge largely by reading articles in newspapers published in Fayette, Lamar, and Tuscaloosa Counties, by listening to the radio, and by talking with friends and relatives. Of those who participated in the survey, 46% stated that based on what they had read or heard about the case, they personally believed that Ms. Fowler was not justified in killing her husband. After carefully reviewing the numerous newspaper articles and the transcripts of radio broadcasts that are contained in the record, we conclude that none of them is inherently prejudicial or tends to inflame the community to rally against the petitioner. To the contrary, they are factual and objective accounts of the events surrounding the petitioner's case. In Primm v. State, 473 So. 2d 1149, 1155 (Ala.Crim.App.1985), the court, quoting Anderson v. State, 362 So. 2d 1296, 1299-1300 (Ala.Crim.App.1978), correctly stated:
"`Generally newspaper articles which objectively report the commission of a crime, do not carry inflammatory headlines, and do not editorialize on the facts in a manner to inflame the community or create an atmosphere of prejudice are an insufficient basis on which to grant a motion for a change of venue. Gray v. State, 56 Ala.App. 131, 319 So. 2d 750 (1975).'"
In Mathis v. State, supra, the following is stated:
"`In Godau v. State, 179 Ala. 27, 60 So. 908, 910 [1913], it was said:
"`"So long as we have newspapers we may expect to have through them the report of crimes, and it is not to be unexpected that, when a homicide is committed... the newspapers of the community, answering the public interest, will furnish the defendant with at least some material upon which to base an application similar to the one under discussion."
"`Also in McClain v. State, 182 Ala. 67, 62 So. 241, 243 [1913], it was said:
"`"We are not prepared to concede... that the sensational language of a newspaper reporter or special correspondent used in `writing up' such cases ... may be safely taken as a reflection of general public sentiment; nor that it may be lightly assumed that such statements as those ... shown are capable of permanently molding and fixing the opinions of the more intelligent classes of the people to the extinction of their sense of fair play, and the suppression of their sober second thought."
"`The mere belief of the defendant or of his witnesses that he cannot receive an impartial trial is not sufficient to entitle him to a change of venue. Patton v. State, [246 Ala. 639, 21 So. 2d 844 (1945)]; Lee v. State, 246 Ala. 343, 20 So. 2d 471 [1944]; certiorari denied, 325 U.S. 888, 65 S. Ct. 1576, 89 L. Ed. 2002 [1945].'"
280 Ala. at 18, 189 So. 2d at 566 (quoting Campbell v. State, 257 Ala. 322, 324-25, 58 So. 2d 623 (1952)).
Furthermore, the record indicates that the publicity surrounding this case has diminished somewhat since the first trial, which took place over two years ago. The passage of time tends to bring objectivity *749 to a case in which there has been extensive pretrial publicity. Holladay v. State, supra.
The record in the present case does not show that prejudicial pretrial publicity has so saturated Lamar County as to raise an inference that a deep and bitter prejudice exists among prospective jurors there; accordingly, we could not say that the trial judge abused his discretion in denying Ms. Fowler's motion to transfer the case beyond Lamar County.[1] Although we are mindful that 46% of the prospective jurors in Lamar County who participated in the survey indicated that they had a preconceived notion that Ms. Fowler is guilty, we note that the participants in the survey were not asked whether they could lay aside any opinions that were based on what they had read or heard and render a fair verdict in the case based on the evidence that might be presented in a court of law. We are confident that any prospective jurors in Lamar County who cannot lay aside their preconceived notions as to guilt can be identified during voir dire and challenged for cause under Ala.Code 1975, § 12-16-150(7).
WRIT DENIED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur.
[1] We note that in this Court Ms. Fowler moved to strike certain affidavits that were submitted by the State to the Court of Criminal Appeals in response to her request for a writ of mandamus from that court; however, because we did not consider those affidavits, it was not necessary for us to rule on the motion. | December 7, 1990 |
fd064b9c-c93f-40ad-abba-fd036358cc99 | Lolley v. Charter Woods Hosp., Inc. | 572 So. 2d 1223 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1223 (1990)
Victoria L. Doty LOLLEY
v.
CHARTER WOODS HOSPITAL, INC.
89-1774.
Supreme Court of Alabama.
November 30, 1990.
*1224 Warren Rowe of Rowe & Rowe, Enterprise, for appellant.
Fred W. Tyson of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
SHORES, Justice.
Victoria L. Doty Lolley appeals from a summary judgment for the defendant, Charter Woods Hospital, Inc. (hereinafter referred to as "the Hospital"), on her claim of false imprisonment against the Hospital. We affirm.
Mrs. Lolley was first admitted to the Hospital on January 15, 1987, and was discharged on February 13, 1987. During this time, Mrs. Lolley was assigned to the addictive disease unit of the Hospital and was on a detoxification regimen. Lolley's initial diagnosis was "attempted suicide" and "alcohol abuse"; her final diagnosis was: 1) "adjustment disorder with depressed mood and suicide attempt"; and 2) "alcohol abuse." Lolley was eventually discharged, without medication being prescribed, but she was advised to return for out-patient counseling and follow-up.
Lolley failed to attend out-patient counseling and was readmitted to the Hospital on April 8, 1987. Upon readmission, Dr. Charles R. Hicks, Jr., Mrs. Lolley's psychiatrist during both hospitalizations, made the following diagnosis: 1) "adjustment disorder with depressed mood"; 2) "intrauterine pregnancy"; and 3) "mixed substance abuse." Lolley was again assigned to the Hospital's addictive disease unit and was again placed on a detoxification regimen.
Lolley completed detoxification but often complained about being in the Hospital and denied having any problems that would warrant her stay. Because Lolley still threatened suicide and was still taking phenobarbital (prescribed during detoxification), Dr. Hicks did not view her as a safe risk outside the Hospital. When detoxification was complete, Lolley demanded to leave, but Dr. Hicks thought that she did not yet possess judgment sufficient to warrant her being discharged into her own custody. As an alternative, Dr. Hicks suggested that a blood relative or an attorney check Lolley out of the Hospital. On April 13, 1987, Tom Motley, an attorney, came to the Hospital, and Lolley was discharged against medical adviceinto Motley's custody. On October 5, 1989, Lolley sued the Hospital, alleging false imprisonment. A summary judgment for the Hospital was entered on April 10, 1990.
Rule 56(c), A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. 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. In determining whether a summary judgment motion was properly granted, the reviewing court must review the motion and the evidence in a light most favorable to the nonmovant. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981), Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Ala.Code 1975) in regard to actions filed after June 11, 1987. See Bass v. South-Trust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, a party must present "substantial evidence," i.e., "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The evidence reflects that when Lolley was readmitted to the Hospital on April 8, 1987, a consent-to-treatment form was *1225 signed by Phillip C. Doty, who at that time was her husband. The consent form specifically stated that the patient, or the patient's next of kin, voluntarily consented to any and all treatment considered advisable by the patient's physician. In Alabama, "false imprisonment" is defined as the unlawful detention of the person of another for any length of time whereby that person is deprived of his or her liberty. Ala.Code 1975, § 6-5-170. And it has been stated that the true test in determining false imprisonment is not the extent of the restraint, or the means employed, but the lawfulness of the restraint. 35 C.J.S. False Imprisonment § 5 at 628.
By allowing her husband to sign the consent-to-treatment form, Lolley agreed to the treatment selected by Dr. Hicks; Dr. Hicks placed her on phenobarbital. In his affidavit, Dr. Hicks stated that while Lolley was on phenobarbital he felt that she was not a safe risk outside the Hospital and therefore did not allow Lolley to leave. The treatment Lolley consented to placed her at risk if she left the Hospital. Dr. Hicks recognized the risk and was in the best position to accurately evaluate and reduce the risk. He felt that direct supervision by the Hospital's staff was the best way to protect Lolley from herself; this is what he ordered. Such a decision was not a deviation from the authority granted to Dr. Hicks to subscribe advisable treatment. Dr. Hicks's decision to keep Lolley at the Hospital until detoxification was completed was not an unlawful detention, because Lolley granted to Dr. Hicks the power to prescribe the treatment he thought advisable. Part of that treatment was making sure that Lolley did not harm herself.
Once detoxification was complete, Dr. Hicks did agree to Lolley's leaving the Hospital against medical advice, but only if a blood relative or an attorney accepted custody. Lolley was allowed free access to a telephone and was offered Hospital staff assistance in contacting a family member. Clearly, Dr. Hicks was concerned about Lolley's hurting herself, and this concern served as the basis of his decisions, but Dr. Hicks did not stand in the way of Lolley's leaving once detoxification was completed. Dr. Hicks acted only to make sure that Lolley would not harm herself; his actions were reasonable in light of the facts and Dr. Hicks's personal knowledge of Lolley's condition.
The Hospital made a prima facie showing that there was no genuine issue of material fact, and that it was entitled to a judgment as a matter of law. Rule 56(c), Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990). Lolley failed to produce substantial evidence to rebut that showing.
Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | November 30, 1990 |
1f25a812-5336-40e6-9f70-87823d9695c7 | Ford Motor Co. v. Neese | 572 So. 2d 1255 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1255 (1990)
FORD MOTOR COMPANY
v.
Jimmy Sue NEESE.
89-1175.
Supreme Court of Alabama.
December 14, 1990.
Michael E. Knight of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, and John M. Thomas, Office of Gen. Counsel, Ford Motor Co., for appellant.
James Harvey Tipler and Jennifer L. Lunt of Tipler and Tipler, Andalusia, for appellee.
SHORES, Justice.
Ford Motor Company (hereinafter "Ford") appeals from a judgment reforming a general release signed by Jimmy Sue Neese, as administratrix of the estate of James M. Neese, into a pro tanto release. We affirm.
In December 1986, an automobile driven by Danny Ray Smith struck an automobile driven by Gregory Fowler and owned by Carolyn Fowler Odom. Ms. Odom and James M. Neese, passengers in the car driven by Fowler, were killed. Both cars were insured by State Farm Mutual Automobile Insurance Company (hereinafter "State Farm"). Charles Mann, a State Farm claims representative, contacted Jimmy Sue Neese, James M. Neese's daughter, concerning the payment of Mr. Neese's funeral expenses. Ms. Neese retained counsel to assist her in obtaining letters of administration and, eventually, to negotiate a settlement with State Farm. A settlement of $25,000 was agreed upon, and in return Ms. Neese signed the following release:
Ms. Neese retained new counsel, and on December 28, 1988, filed a products liability action against Ford. The present action was filed on January 3, 1989, seeking reformation of the release so that only State Farm, the individuals specifically listed in the release, and their heirs, executors, administrators, agents, and assigns, would be released. A hearing was held on November 20, 1989, and on November 28, 1989, the trial court issued its order, reforming the release
In Pierce v. Orr, 540 So. 2d 1364 (Ala. 1989), this Court reconsidered and reevaluated its treatment of general releases. Prior to Pierce, the appellate courts of Alabama had upheld the claims of unnamed third parties and summarily discharged them under the terms of a general release;[1] yet Alabama Code 1975, § 12-21-109, mandated the following:
The expression of the legislative will that both the terms of a release and the intentions of the parties must be considered in determining the effect of the release had been longstanding,[2] but simply ignored by the courts prior to Pierce, except with regard to reformation, in which regard the courts made a notable exception. Trial court judgments that either set aside or reformed general releases, insofar as those releases declared noncontributing unnamed third parties to be discharged from liability, were affirmed. See Alabama Farm Bureau Ins. Co. v. Hunt, 519 So. 2d 480 (Ala. 1987). In Pierce, this Court decided to "accept at face value" the legislative will articulated in § 12-21-109, and held:
Pierce, 540 So. 2d at 1367.
We acknowledge that the Court, in Kelly v. Alexander, 554 So. 2d 343 (Ala.1989), which was decided two months after Pierce v. Orr, 540 So. 2d 1364 (Ala.1989), reached a result different from that reached in Pierce v. Orr and the result we reach today.[3] We reaffirm the holding in Pierce v. Orr, because we believe it is mandated by a fair reading of the legislative will as expressed in § 12-21-109, Ala.Code 1975. To the extent that Kelly v. Alexander, supra, is contrary to the holding in Pierce v. Orr, it is expressly overruled.
Ford must prove by substantial evidence[4] that it was a party intended to be released by the general release between Ms. Neese and State Farm, unless Ford paid some part of the consideration for the release and is an agent, principal, heir of, assign of, or otherwise occupies a privity relationship with, the named payor. In its order, the trial court stated certain findings of fact: 1) that Ford was not a named party in the release; 2) that Ford was not a contributing party to the release; 3) that State Farm insured both drivers involved in the collision; 4) that the suit brought by Ms. Neese against Ford, based upon a crashworthy vehicle theory, was not within the contemplation of any of the parties at the time the release was executed; 5) that it was State Farm's intent to settle the case only as it related to any State Farm insured; and 6) that the vehicle's crashworthiness was not considered, and neither was the issue of liability. It is well established that this Court can not overturn a finding of fact made by a lower court that is supported by the evidence and that is not plainly and palpably wrong; such a finding carries a presumption of correctness, even though there may be conflicting evidence. Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351, 365 (Ala.1988). A careful review of the record indicates that the trial court's findings of fact are supported by the evidence and are not plainly and palpably wrong, so they carry with them the presumption of correctness. Ford must, by substantial evidence, prove that it was a party intended to be released.
Ford argues that the trial court's use of parol evidence was incorrect because, it argues, the intentions of Ms. Neese and State Farm concerning the parties to be released must be determined from the unambiguous terms of the release itself. In Alabama Farm Bureau Ins. Co. v. Hunt, 519 So. 2d 480 (Ala.1987), we addressed the use of parol evidence in determining the intention of the parties to a release:
Hunt, 519 So. 2d at 485, citing Reformation of Instruments, 66 Am.Jur.2d § 118, pp. 644-45 (1973). Thus, the trial court's use of parol evidence was not error.
Ford also argues that Ms. Neese presented no evidence that established an entitlement to reformation of the release. Specifically, Ford claims that Ms. Neese did not prove: 1) a mutual mistake between State Farm and herself concerning the scope of the release; or 2) a unilateral mistake, either on State Farm's part or hers, of which the other party knew or suspected at the time the release was signed. See Ala. Code 1975, § 8-1-2. In support of the contention that there was no mutual mistake, Ford points to a portion of Charles Mann's testimony:
(R.T. 44. Emphasis added.) Mann also stated that it was the intent of State Farm, in preparing the release, to "protect our [State Farm's] insured" (R.T. 45) and that Ford never was intended to be released. (R.T. 46.) Further, Ms. Neese testified that she never discussed the terms of the release with Mr. Mann or with any other State Farm personnel, that she understood the release to cover those individuals named and State Farm, and that it was never her intent to release any parties except those named in the release itself. (R.T. 8-12.) Ms. Neese's attorney testified that he told Neese that the only persons being released from liability in the release were those specifically named and State Farm; no other parties were discussed. (R.T. 26-27.)
From the evidence the trial court could reasonably conclude that both Ms. Neese and her attorney intended only State Farm and those individuals specifically mentioned in the release to be relieved of liability. The same can also be said of State Farm, even in the face of Mr. Mann's conflicting testimony. Kershaw, supra. Thus, the trial court could reasonably conclude that there existed a mutual mistake between the parties in that the release did not adequately reflect their true intentions. Reformation of the release to reflect the parties' true intentions would be allowable.
In light of the testimony presented, the trial court could find that State Farm's intent was to settle the case only as it pertained to any party insured by State Farm. Thus, the reformation of the release was not error. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent, with opinion by HOUSTON, J.
HOUSTON, Justice (dissenting).
We released Kelly v. Alexander, 554 So. 2d 343 (Ala.1989), on April 21, 1989, and denied rehearing on June 16, 1989. We had released Pierce v. Orr, 540 So. 2d 1364 (Ala.1989), on February 24, 1989. Kelly v. Alexander, supra, is in accord with my dissent in Pierce v. Orr. In Kelly v. Alexander, a majority of this Court returned to the law of releases as it had existed prior *1259 to Pierce v. Orr. I dissented in Pierce v. Orr, because the majority opinion in that case unsettled precedent that had been established by many opinions over many years; therefore, I dissent in this case, because the majority opinion is a departure from Kelly v. Alexander's return to stare decisis.
MADDOX and STEAGALL, JJ., concur.
[1] See, Baker v. Ball, 473 So. 2d 1031 (Ala.1985); Johnston v. Bridges, 288 Ala. 156, 258 So. 2d 866, cert. denied, 409 U.S. 847, 93 S. Ct. 52, 34 L. Ed. 2d 88 (1972); Miles v. Barrett, 223 Ala. 293, 134 So. 661 (1931); and Barbour v. Poncelor, 203 Ala. 386, 83 So. 130 (1919).
[2] What today is § 12-21-109 has been in existence, in some form, since 1852.
[3] The inconsistency between Pierce and Kelly was not argued in the Kelly v. Alexander application for rehearing.
[4] Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved. West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). | December 14, 1990 |
bf5b4c30-bf18-464d-906b-2e2d239d6364 | Ex Parte State Ex Rel. McKinney | 575 So. 2d 1024 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1024 (1990)
Ex parte STATE of Alabama ex rel. Nellie Jo McKINNEY.
(Re STATE of Alabama ex rel. Nellie Jo McKINNEY v. Henry SMOOT).
89-1621.
Supreme Court of Alabama.
November 30, 1990.
Rehearing Denied February 22, 1991.
*1025 William Prendergast and Lois Brasfield, Asst. Attys. Gen., for petitioner.
George N. Sims, Talladega, for respondent.
MADDOX, Justice.
The State of Alabama, on the relation of Nellie Jo McKinney, petitioned the Court of Civil Appeals for a writ of mandamus, pursuant to Rule 21, A.R.App.P. That court denied the petition. See Ex parte State ex rel. McKinney, 567 So. 2d 366 (Ala.Civ.App. 1990). The State now seeks the same relief from this Court. See Rule 21(e). The petition asks for a writ of mandamus ordering Judge George N. Sims of the Talledega County Juvenile Court to set aside his order of February 2, 1990, granting Henry Smoot's Rule 60(b)(6), A.R.Civ.P., motion, in which Smoot had requested relief from a November 15, 1977, paternity judgment.
In order to understand the import of the State's mandamus petition, a review of the facts and procedural history of this case is necessary. In a November 1977 court proceeding, Henry Smoot admitted that he was the father of a child to be born out-ofwedlock to Nellie Jo McKinney and agreed to pay $12.50 per week in child support.
Smoot made the child support payments for a period. As of August 1987, Smoot had paid almost one-third of his total obligation, but was $4,254.05 in arrears. In that month, the State, on the relation of McKinney, filed a petition in the circuit court asking that Smoot be held in contempt for failure to pay the child support he had agreed to pay in 1977.
Smoot was not served with the subpoena until July 1989. One month later, Smoot underwent a fertility test and was found to be sterile. The doctor who performed the test noted that the sterility was due to the size of Smoot's testicles ("the patient gave no history of mumps or trauma to the testicles"), not the result of accident or injury. The matter was heard in September 1989, and the trial judge ordered that the question of paternity be reconsidered after blood tests were administered to McKinney, Smoot, and the child.
In February 1990, Smoot filed a Rule 60(b)(6), A.R.Civ.P., motion for relief from judgment, asking the court to set aside the November 1977 judgment holding that he *1026 was the father of McKinney's child and requiring him to pay child support. His motion was granted on February 21, 1990; the court set aside the 1977 judgment and ordered that McKinney bear the costs of the blood tests.
The State filed a petition for the writ of mandamus in the Court of Civil Appeals, asking that court to order Judge Sims to set aside his order granting Smoot's Rule 60(b)(6) motion. The trial judge stayed enforcement of that part of his order relating to the payment of the costs of blood tests pending the outcome of that petition for writ of mandamus. The Court of Civil Appeals denied the writ, concluding that the trial court had not abused its discretion in holding that there had been no unreasonable delay by Smoot in filing his Rule 60(b)(6) motion; that court also concluded that the trial court had not abused its discretion in treating Smoot's request as a Rule 60(b)(6) motion rather than as a Rule 60(b)(2) motion.
The State now seeks an Ala.R.App.P. 21(e) de novo review of the decision of the Court of Civil Appeals, asking again for a writ of mandamus directing Judge Sims to withdraw his order of February 1990 and to deny the defendant's motion for relief from judgment. The State's petition for a writ of mandamus is due to be denied.
This Court has addressed many times the issue of when mandamus is due to be granted. In Ex Parte Thompson, 474 So. 2d 1091 (1985), the Court stated:
474 So. 2d at 1094.
Furthermore, mandamus is not a writ of right; it is granted or denied in the Court's discretion. Ex Parte Dunlap, 260 Ala. 52, 68 So. 2d 533 (1954). It 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. C & G Development v. Planning Commission of the City of Homewood, 548 So. 2d 451 (Ala.1989).
In this case, the State has not clearly shown that the trial court abused its discretion and exercised its discretion in an arbitrary or capricious manner. The State has failed to meet its burden of proving that it had a clear right to have Judge Sims's order vacating the judgment of paternity and ordering blood tests set aside.
By denying the State's petition for mandamus, we do not decide whether Smoot is the father of the child he agreed to support. Neither do we decide whether Smoot should be estopped to deny his paternity of the child. These issues, if raised, can be litigated in the trial court, and an aggrieved party can appeal.
WRIT DENIED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur. | November 30, 1990 |
67a95333-eec7-48fc-b91e-248342543f7e | Associated Grocers of Alabama v. Graves Co. | 130 So. 2d 17 | N/A | Alabama | Alabama Supreme Court | 130 So. 2d 17 (1961)
ASSOCIATED GROCERS OF ALABAMA
v.
GRAVES CO. et al.
2 Div. 416.
Supreme Court of Alabama.
May 11, 1961.
*18 M. R. Nachman, Jr., Steiner, Crum & Baker, Montgomery, and Neil Metcalf, Geneva, for appellant.
Edw. E. Partridge, Demopolis, for appellees.
STAKELY, Justice.
This is an appeal from a decree of the circuit court of Marengo County, in Equity, overruling appellant's demurrer to the bill of complaint.
This is a suit brought by certain alleged wholesalers of cigarettes under the Unfair Cigarette Sales Act. Title 57, §§ 83(1)-83 (14), Code of 1940 (1955 Cumulative Pocket Part). Section 83(2) of the cited statute provides in material part as follows:
Section 83(3) makes the sale of cigarettes at less than cost and in violation of the statute a misdemeanor. Section 83(12) allows "any person injured" by a violation a suit "in any court of equitable jurisdiction" to prevent, restrain, or enjoin such violation, with provision for damages.
The complaint alleges in substance that the respondent, with an intent to injure competitors, had sold and delivered cigarettes at wholesale since its incorporation and up to the filing of the bill, particulary in Demopolis in the County of Marengo at less than the cost thereof within the meaning of the statute and had thereby violated the provisions of the statute. Complainants sought an injunction and restraining order.
Respondent demurred to the bill on the ground, among other grounds, of improper venue. The demurrer was overruled and the trial court ordered a temporary injunction as prayed for in the bill of complaint.
*19 The question for decision is whether Marengo County is a proper venue for this suit.
The bill of complaint alleges that respondent (appellant) is a domestic corporation with its "principal place of business at Birmingham Food Terminal, Finley Yards, Birmingham, Jefferson County * * *." Title 7, § 294, Code of 1940, provides in its first clause that a bill in equity "must be filed in the county in which the defendant, or a material defendant, resides * * *." According to the contention of appellant the portion of Section 294, which has been set forth, requires that the instant suit be filed in Jefferson County.
Appellee points, however, to the language of § 83(12)(a) of the Cigarette Act, by which it is provided that "any person injured" may maintain an action for injunctive relief and damages "in any court of equitable jurisdiction." Appellee seems to contend in substance that the effect of the quoted language is to eliminate the usual requirements of venue insofar as suits under the Cigarette Act are concerned, or to create a special venue in "any court of equitable jurisdiction" for such suits. We think, however, that the purpose and effect of the quoted language of the Cigarette Act relates only to questions of jurisdiction and do not affect the separate and distinct question of venue. Generally jurisdiction and venue are separate and distinct. Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So. 2d 665. In other words, the legislature has by this Cigarette Act created a new cause of action and provided remedies for injury. Where the remedy primarily sought is the injunctive remedy, the legislature has properly conferred the authority to entertain and adjudicate the new cause of action upon courts of equity. By way of contrast, subsection (b) of § 83(12) provides that "in the event no injunctive relief is sought or required" a person injured may maintain an action for "damages alone in any court of competent jurisdiction." In the situation here described the remedy is of a purely legal, rather than an equitable nature. Accordingly, jurisdiction has not been limited to courts of "equitable jurisdiction."
In further support of its position and of the trial court's ruling, the appellee seeks to invoke the aid of Title 7, § 60, Code of 1940, which provides in its material part that "a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose * * *." Under this statute, according to the appellee, the venue was properly laid in Marengo County.
We also call attention to § 54, Title 7, Code of 1940, which in pertinent part reads as follows, "all other personal actions, if the defendant or one of the defendants has within the state a permanent residence, may be brought in the county of such residence, or in the county in which the act or omission complained of may have been done or may have occurred. * * *."
Consideration of some Alabama decisions dealing with venue statutes which are predecessors of the present venue statutes may be helpful. In Ashurst v. Gibson, 57 Ala. 584, there was a bill filed to foreclose a mortgage of real and personal property against defendants residing in another county and district than that in which the bill was filed. This court said:
The bill in the foregoing case was dismissed.
In Home Protection of North Alabama v. Richards, 74 Ala. 466, it was pointed out that a different rule pertains to domestic corporations and that an act providing that a domestic corporation may be sued in any county in which it does business by agent is not unconstitutional, because a rule for venue for domestic corporations can be based on considerations different from venue for suits against individuals.
We think that these cases show that a statute providing that a domestic corporation may be sued in any county in which it does business by agent is just as important as a statute providing that a suit in equity must be filed in the county where a material defendant resides.
So in order to determine the proper venue in the present case, we should consider and attempt to reconcile the quoted provisions of § 294, Title 7, Code of 1940, of § 60, Title 7, Code of 1940 and of § 54, Title 7, Code of 1940. These statutes should be construed in pari materia. American Standard Life Ins. Co. v. State, 226 Ala. 383, 147 So. 168.
A solution to the instant problem is suggested by the treatment we have accorded § 60, or its predecessors, in relation to § 54, quoted above, or its predecessors. Our approach to these two statutes and their interrelation has been that in cases where either statute would be applicable the plaintiff has an election to choose, for purposes of venue, the one under which to proceed. In other words, if one county is a proper venue under § 54 and another under § 60, then both counties are equally proper and plaintiff may file in either. Thus for example, in Drennen Motor Car Co. v. Evans, 192 Ala. 150, 155, 68 So. 303, 305, we said:
See also Southern Railway Co. v. Goggins, 198 Ala. 642, 73 So. 958; Montgomery Iron Works v. Eufaula Oil & Fertilizer Co., 110 Ala. 395, 20 So. 300; Ashurst v. Gibson, 57 Ala. 584.
In short, these statutes are not conflicting but complementary and provide not inconsistent but alternative procedures.
What is true of § 60 and § 54 is, we think, equally true of § 60 and § 294, such that a complainant in equity in a suit against a domestic corporation has the same election as a plaintiff at law. So in the instant case the bill could have been filed under § 294 in Jefferson County or under § 60 in Marengo County, where appellant did business by agent. Appellee has elected to sue in Marengo County. The venue will not be disturbed.
In order that there may be no misunderstanding, let us say that there was no duty on the part of the complainant to show proper venue in the bill of complaint, since improper venue ordinarily is defensive matter to be shown by plea. Tennessee Coal Iron & R. R. Co. v. Bridges, 144 Ala. 229, 39 So. 902. But where the demurrer attacks the bill as showing improper venue, demurrer will be overruled if the facts alleged in the bill show proper venue. Crawford v. Walter, 202 Ala. 235, 80 So. 73; Puckett et al. v. Puckett, 174 Ala. 315, 56 So. 585.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | May 11, 1961 |
6686443d-a708-466e-b207-bd46e8fded1b | Mallory v. Mallory | 131 So. 2d 703 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 703 (1961)
Anna Lee MALLORY
v.
Lowry MALLORY.
7 Div. 519.
Supreme Court of Alabama.
May 11, 1961.
Rehearing Denied June 29, 1961.
Norred & Propst, Birmingham, for appellant.
Merrill, Merrill, Vardaman & Williams, Anniston, for appellee.
MERRILL, Justice.
This is an appeal from a decree of the Circuit Court of Calhoun County, in Equity, granting complainant a divorce on the ground of voluntary abandonment.
Appellee, Lowry Mallory, a resident of Anniston, and appellant, Anna Lee Mallory, were married on December 25, 1955, in appellant's home state of Oklahoma. They lived together as husband and wife for seventy-five days at appellee's home in Anniston, Calhoun County. On March 10, 1956, appellant left Anniston and went to the home of her father in Duncan, Oklahoma. *704 She never returned to live with appellee. The bill was filed October 15, 1959.
Appellant's assignment of error 15 charges error in that the decree is not supported by the evidence. Appellant argues that there was no evidence of voluntary abandonment on her part. The evidence was conflicting on this point. Appellee testified that appellant's departure was presumably only for a visit to her father and that he had asked her to return. The Negro maid in appellee's home testified that on the day appellant left she told her that she was going to visit for a couple of weeks, but that appellant had taken all her belongings with her; she testified that she subsequently received a letter from appellant advising her that she was not coming back to Anniston to live. It is undisputed that she never returned.
All the evidence was taken orally before the trial judge. When that is the case, his judgment will not be disturbed on appeal unless palpably wrong, since his findings from the evidence have been likened unto the verdict of a jury. Wood v. Wood, 263 Ala. 384, 82 So. 2d 556; Wilson v. Wilson, 257 Ala. 135, 57 So. 2d 519. We cannot say that the decree was plainly wrong. Sills v. Sills, 246 Ala. 165, 19 So. 2d 521.
Appellant argues three other assignments of error pertaining to the sustaining of objections to offers of three letters into evidence.
The first of these letters offered into evidence is respondent's exhibit number eleven. Appellant urges that proof of this written communication from Dr. Jones advising her that she should go ahead and resume her teaching in California was admissible on the issue of showing her intent and whether her continued absence was voluntary. Similarly, appellant insists that a letter from Dr. Kay, although it did not furnish any advice as to whether she should attempt to return to appellee, was admissible to show "that the appellant would have been foolish to attempt to return to the marital home" because of "the mere fact that Dr. Kay failed to negative the statements contained in Dr. Jones' correspondence." Appellant cites no authority in support of her position.
Extra-judicial statements of a doctor are hearsay and are not admissible in evidence, and this is so whether the statements are oral or in writing. Prince v. Lowe, 263 Ala. 410, 82 So. 2d 606; Clark v. Hudson, 265 Ala. 630, 93 So. 2d 138; Smith v. Smith, 268 Ala. 348, 106 So. 2d 260; Taylor v. Atlantic Coast Line R. Co., 232 Ala. 378, 168 So. 181; Hussey v. State, 87 Ala. 121, 6 So. 420.
Appellant also sought to introduce into evidence a letter which she wrote to Dr. Jones. It is urged that this letter was admissible in showing the relations between the parties, i. e. that she was concerned about appellee's condition and that she was relying upon the advice of the physicians in deciding whether to resume teaching rather than returning to appellee.
The declarations of a party are not evidence for himself unless they constitute a part of the res gestae. A party cannot make evidence for himself by his own declaration; a statement, whether oral or written, which is self-serving is not admissible evidence in favor of the declarer. Ex parte McLendon, 239 Ala. 564, 195 So. 733; Hall v. Hall, 219 Ala. 199, 121 So. 718; Commonwealth Life Ins. Co. v. Barr, 218 Ala. 505, 119 So. 11; 9 Ala.Dig., Evidence.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | May 11, 1961 |
facecea5-6c1e-472a-a9c8-7ac05835d3f7 | RJD v. Vaughan Clinic, PC | 572 So. 2d 1225 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1225 (1990)
R.J.D.
v.
The VAUGHAN CLINIC, P.C., et al.
89-631.
Supreme Court of Alabama.
December 7, 1990.
*1226 Donald R. Rhea of Rhea, Boyd & Rhea, and Roy Moore, Gadsden, for appellant.
Roger C. Foster and Robert G. Boliek, Jr., of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellees Vaughan Clinic and Dr. Gary S. Grayson.
William T. Mills II and Keith J. Pflaum of Porterfield, Harper & Mills, Birmingham, for appellee Children's Hosp.
MADDOX, Justice.
This appeal involves the question whether a custodial parent has the right to have her 17-year-old minor child admitted into a private psychiatric hospital against the minor child's will and without her consent. The issue presented on appeal is whether a private physician and private hospital that admit and hold such a minor child against the child's will, but based on the request and consent of the custodial parent, can be held liable for either false imprisonment or for violating the minor's civil rights.
Mr. D. and Mrs. D., parents of the plaintiff, R.J.D., were divorced in Marshall County, Alabama, in 1979. The court awarded the mother, Mrs. D., the care, custody, and control of R.J.D., then 12 years of age. R.J.D. lived with her mother in Birmingham, Alabama until certain events occurred that ultimately led to the subject controversy. On November 13, 1984, five years after she was awarded custody, Mrs. D. filed a complaint with the Family Court of Jefferson County alleging that R.J.D., then 17 years of age, had left home and was in need of supervision.
The Jefferson County Family Court held a hearing on the mother's petition, and granted custody of R.J.D. to her mother, who immediately had R.J.D. admitted into Children's Hospital. Although R.J.D. refused to consent to her admission, Dr. Gary Grayson, a psychiatrist employed with Vaughan Clinic[1] admitted R.J.D. into Children's Hospital, based on her mother's request and consent, and placed R.J.D. in the secure ward of the adolescent care unit. Two weeks later, on December 5, 1984, R.J.D.'s father smuggled her out.
On November 15, 1985, while still a minor, R.J.D., by and through her father, filed this action against Vaughan Clinic, Children's Hospital and Dr. Grayson, alleging medical malpractice, breach of contract, false imprisonment, and outrage, and seeking damages pursuant to 42 U.S.C. § 1983 for civil rights violations. On September 26, 1989, the trial court granted each defendant's motion for summary judgment as to R.J.D.'s claims based on false imprisonment, outrage, and civil rights violations, and certified the judgment as final pursuant to the provisions of Rule 54(b), A.R. Civ.P. R.J.D. appealed to this Court on January 17, 1990, but only as to her claims *1227 for false imprisonment and civil rights violations. R.J.D.'s medical malpractice and breach of contract claims are still pending in the trial court.
We must determine whether the trial court correctly entered summary judgment on the minor's false imprisonment and federal civil rights claims. To determine that, we initially must examine the underlying question of the legal right of a parent to determine what is in the best interest of a child regarding the necessity for psychiatric care.
We first address the question of the propriety of the defendants' summary judgment on the plaintiff's false imprisonment claim. As defined in Alabama, "[f]alse imprisonment consists in the unlawful detention of the person of another for any length of time whereby he is deprived of his personal liberty." Ala.Code 1975, § 6-5-170.
It is undisputed that R.J.D. was admitted to Vaughan Clinic by Dr. Grayson against her will and without her consent; consequently, there is no dispute concerning the basic facts, the only dispute being over the right of a custodial parent to determine the medical needs of a 17-year-old unemancipated child regardless of the wishes of the child.
A child, like an adult, has a substantial liberty interest in not being confined unnecessarily for medical treatment, but Alabama has long recognized the principle that parents are, by the common law, under the legal duty of providing medical attention for their children. Ex parte University of South Alabama, 541 So. 2d 535 (Ala.1989); Osborn v. Weatherford, 27 Ala.App. 258, 170 So. 95 (1936).
This Court has found no Alabama cases directly applicable to the facts in this case, and the legislature has not addressed the question of the legal rights of a child under the circumstances presented here, the voluntary admission of a minor child by a custodial parent to a psychiatric unit.[2] Consequently, absent alteration by the legislature, the common law is controlling. Ala.Code 1975, § 1-3-1.
The parents' common law duty to care for their children is widely recognized:
59 Am.Jur.2d Parent and Child § 48, at 193-94 (1987).
Alabama is among the many states that respect this common law duty. Ex parte University of South Alabama, supra. Thus, in order to address adequately R.J. D.'s false imprisonment claim, the Court must necessarily consider the common law duty and the right of parents to provide for the care and health of their children. Under the common law it is not the child's consent to such care that controls. Rather, it is the parents' common law right and duty to provide for the well-being of their children that prevail.
In Osborn, supra, the court acknowledged the parents' "obligation, natural, moral, and legal, to furnish the necessaries" for their minor children:
Osborn, 27 Ala.App. at 259, 170 So. at 96 (quoting 20 R.C.L. par. 30, at 622).
The common law deems parental care for children not only an obligation, but also an inherent right:
59 Am.Jur.2d. Parent and Child § 48 at 194 (1987) (emphasis added).
The United States Supreme Court followed this common law rule in Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979). In Parham, minor children receiving treatment in the Georgia state mental hospitals challenged the commitment procedures that allowed parents to commit their minor children without first obtaining their consent. The Supreme Court there aptly addressed the common law rights and duties of parents:
442 U.S. at 602-603, 99 S. Ct. at 2504.
Although Parham involved the commitment of children to a state institution, the principle of law applied there would be the same when the commitment is voluntary and is to a private facility; therefore, the common law right and duty of parents to care for their children would apply to the facts in this case. The mere fact that R.J.D.'s mother decided to admit her into Children's Hospital without R.J.D.'s consent and against her will, would not automatically dictate the transfer of authority to make that decision from her mother to either R.J.D. or the State. There is no indication in the record that the action of R.J.D.'s mother would authorize a finding of neglect or abuse on the mother's part. Therefore, we hold that the authority and duty to care for R.J.D. rested solely with her mother, who had been given the care, custody, and control of R.J.D.
There are strong policy reasons for our holding. Parents are entrusted with providing for the best interest of their children. The law, in fact, authorizes both civil remedies and criminal penalties in cases of child neglect or child abuse. See Ala.Code 1975, §§ 13A-13-4 et seq., 26-14-1 et seq., 26-15-1 et seq., and 30-5-1 et seq. In order that parents may fulfill the duty the law places on them to provide for their children, the law allows them the authority to give the necessary consent for admitting their children into a health care facility. In view of the parental obligations to provide for the health care needs of children, and in view of the common law right of parents to exercise broad authority over their children, health care providers should be able to rely on a parent's consent when admitting a minor child into their care and should feel confident in relying upon that consent in detaining minor children for the purpose of treatment, for either physical or mental infirmities.
*1229 In view of these policy considerations and the principles of the common law, which we must apply, we hold that the trial court did not err in finding that none of the defendants "unlawfully detained" R.J.D. in treating her, because the evidence is clear that each defendant admitted R.J.D. and provided treatment for her in reliance upon her mother's consent. We hold, therefore, that, with respect to R.J.D.'s claim based on an alleged false imprisonment, the trial court properly entered summary judgment in favor of Vaughan Clinic, Children's Hospital, and Dr. Grayson.
R.J.D. also appeals from the summary judgment in favor of each defendant on her claim for damages pursuant to 42 U.S.C. § 1983 for civil rights violations. In order to state a prima facie claim under the provisions of § 1983, a plaintiff must allege 1) that the defendant's conduct caused a constitutional violation, and 2) that the challenged conduct was taken or committed "under color of state law." Arnold v. Board of Education of Escambia County, Alabama, 880 F.2d 305 (11th Cir.1989).
R.J.D. seeks to show state action by arguing that the actions of the defendants constituted, at least, "de facto state action." Her claim of a nexus is that Children's Hospital had an affiliation agreement with the University of Alabama at Birmingham, that there is no significant distinction between the commitment of an individual to a private or quasi-private institution and commitment to a public institution and that the constitutional implications are the same. R.J.D. argues that the State of Alabama "rigorously regulates juvenile commitment proceedings," citing Code of Ala.1975, § 12-15-90 et seq., which provides for the "involuntary commitment" of "any minor or child, as defined in [Chapter 15 of Title 12]," (see § 12-15-90(a)) and sets out the procedures that must be followed. But those provisions obviously apply only to commitments to state institutions, and not to a private institution, such as is involved in this case, for which the legislature has provided no such procedure. In this case, Dr. Grayson, a private physician with Vaughan Clinic, "admitted" R.J.D. into Children's Hospital, a private rather than a statehospital, with the full consent of her mother.
Additionally, the defendants' action does not come within the term "under color of state law." R.J.D.'s mother merely entered into a private contract with Dr. Grayson, of Vaughan Clinic and Children's Hospital, for her daughter's care. There is clearly state action when the State accepts responsibility for the "involuntary commitment" of minors to state hospitals under § 12-15-90, et seq. However, in order to find "state action," we would have to find a sufficient nexus between state law and the "voluntary admission" of a private patient into a private facility by a private physician. To establish a nexus sufficient for private action to come within the term "under color of state law," the plaintiff must show that the private party has "exercised powers that are traditionally the exclusive prerogative of the state." Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S. Ct. 2777, 2786, 73 L. Ed. 2d 534 (1982). We cannot find that nexus here. Dr. Grayson's admission of R.J.D. into Children's Hospital, and the contract of Children's Hospital with R.J.D.'s mother for the care of R.J.D., are not exclusive state prerogatives. We find that R.J.D. failed to establish the required nexus sufficient to show that the defendants acted "under color of state law." Thus, the trial court correctly entered the summary judgment in favor of Vaughan Clinic, Children's Hospital, and Dr. Grayson as to R.J.D.'s claim based on an alleged violation of her civil rights.
Therefore, we affirm the summary judgment.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
JONES and ADAMS, JJ., concur in part and dissent in part.
ADAMS, Justice (concurring in part; dissenting in part).
I respectfully dissent from that portion of the opinion affirming the summary judgment *1230 on the issue of false imprisonment. The majority holds, in effect, that a custodial parent has an absolute right to have a 17-year-old minor child admitted into a private psychiatric hospital against her will and without her consent. Such was not the law in this state, nor, to my knowledge, in any other state, until today. An understanding of the import of this decision requires a fuller exposition of the facts than has been provided to us by the majority.
While a student at Homewood High School in the fall of 1984, R.J.D. began associating with a man who was her senior by some seven years. Her mother attempted to stop the association. On November 17, 1984, allegedly to resolve the conflict with her mother, R.J.D. voluntarily entered Hillcrest Hospital for drug screening and underwent "psychotherapeutic" treatment and counselling under the supervision of Dr. S. David Morrison. On November 21, Hillcrest released R.J.D. with a recommendation of no medication and no follow-up.
On the day of her release, R.J.D. was escorted by Mrs. D. and her private investigators to Brookwood Hospital for an interview with another psychiatrist. Immediately after that interview, R.J.D. was escorted to the Jefferson County Family Court for a hearing on her need for psychiatric treatment. The court appointed Raymond Chambliss as R.J.D.'s guardian ad litem in the matter, and the hearing was held before a referee. At the conclusion of the hearing, the referee, also recommending no treatment, released R.J.D.
However, immediately after the hearing, Mrs. D. and her private investigators escorted R.J.D. to Children's Hospital. Dr. Gary Grayson, with knowledge of the proceedings just concluded in the family court, and over R.J.D.'s objections, admitted her for treatment. During her stay in Children's Hospital, R.J.D. was placed in a "secure ward," with restricted access to a telephone. R.J.D. alleges that when she asked how long she would have to remain at the hospital, she was told that she would stay as "long as someone was footing the bill."
Mr. Chambliss, the court-appointed guardian ad litem, visited the hospital and attempted to speak with R.J.D. However, hospital officials not only refused to allow him to speak with his client but also refused to supply him with any information concerning her status. On December 5, 1984, she escaped with her father through means of a ruse, and she later commenced this suit.
An action based on false imprisonment will lie whenever one is unwillingly subjected to a "restraint upon [his] freedom ... without proper legal authority." W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 11 (5th ed. 1984) (emphasis added). Thus, one who restrains another does so at his own peril. Id. The good faith of the defendant is not a defense to a false imprisonment claim where the restraint is eventually found to have been without sufficient authority. Id. See also Nesmith v. Alford, 318 F.2d 110 (5th Cir.1963), cert. denied, 375 U.S. 975 (1964); Daniels v. Milstead, 221 Ala. 353, 128 So. 447 (1930).
As a general rule, decisions regarding medical or psychiatric treatment of minor children are the responsibility of the parents. H. Clark, The Law of Domestic Relations in the United States § 9.3 (2d ed. 1988). Nevertheless, the "general principle is obviously not absolute even where the child is not capable of making a decision about his own treatment. It is limited by the power of the state to intercede for the protection of the child's health, safety or welfare." Id. (Emphasis added.) Indeed, the state, as parens patriae, holds an inherent and substantial interest in the welfare and protection of its minors. Through this interest, the authority of the state often supersedes that of all others, including that of the parents. See generally Areen, Intervention Between Parent and Child: A Reappraisal of the State's Role in Child Neglect and Abuse Cases, 63 Geo.L.J. 887 (1975). Examples of this power appear in litigation to determine custody and in cases involving allegations of child abuse and neglect. See Comment, When Rights Clash: The Conflict Between a Parent's Right to Free Exercise of Religion *1231 Versus His Child's Right to Life, 19 Cumb.L.Rev. 585, 586-87 n. 7 (1989) (jurisdictional survey of statutes defining the power of states vis-a-vis parents in matters pertaining to the health, welfare, and medical treatment of minors).
For these same reasons, Alabama requires the appointment of a guardian ad litem to represent a child defendant whenever, as in this case, the interests of the parent "conflict with those of the child." Ala.Code 1975, § 12-15-8(a); see also Ala. R.Civ.P. 17(c). Once the parens patriae power of the state has been invoked and a guardian ad litem has been duly appointed, no party may disregard the action of the state in the very matter that required the appointment. In other words, a child is "absolutely entitled to the benefits" of her guardian ad litem at all times pertinent to the proceedings for which the appointment was made. Ridgeway v. Strickling, 442 So. 2d 106 (Ala.Civ.App.1983) (emphasis added); see also Citizens Walgreen Drug Agency, Inc. v. Gulf Ins. Co., 282 Ala. 648, 213 So. 2d 814 (1968). This is a "non-waivable right ... of such magnitude that, upon appeal, the supreme court will take notice ex mero motu of the absence of a guardian ad litem for an infant defendant and will reverse the case on that account." Ridgeway, 442 So. 2d at 109; see also Hall v. Hall, 280 Ala. 275, 192 So. 2d 727 (1966); Doss v. Terry, 256 Ala. 218, 54 So. 2d 451 (1951).
In this case, the largely undisputed facts reveal that R.J.D. was hurriedly ushered out of the courtroom and involuntarily admitted, despite the fact that a referee had just found no treatment to be necessary. Even more significantly, she was denied access to her guardian ad litem when he attempted to visit her in the hospital in connection with the matter of her need for treatment. Under Alabama law regarding the representation of minor defendants, neither Mrs. D. nor the defendants, acting at her behest, had the authority to place such restrictions on R.J.D. It appears that Mrs. D., in seeking a place in which to incarcerate her daughter, had, at last, found these defendants who were willing to serve as collaborators in R.J.D.'s improper restraint.
Summary judgment is proper only where it appears that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ala.R.Civ.P. 56(c) (emphasis added); see also Lolley v. Howell, 504 So. 2d 253 (Ala.1987); Cantrell v. City Federal Sav. & Loan Ass'n, 496 So. 2d 746 (Ala.1986). Under the facts of this case, the defendants are clearly not so entitled; therefore, I would reverse the judgment of the trial court.
At best, the majority opinion will stand merely as an aberration in Alabama law. At worst, it will encourage individuals in the position of these defendants to disregard the interest of this state in the health and welfare of its minors and to flout with impunity judicial authority and legal process. For these reasons, I respectfully dissent in part.
JONES, J., concurs.
[1] Vaughan Clinic contractually provided psychiatric services to Children's Hospital.
[2] The State does, of course, set out the procedures for an involuntary commitment of a minor child to a State facility. Ala.Code 1975, § 12-15-90 et seq. | December 7, 1990 |
cdcd2454-6f0c-47ae-95b6-4bf1c4668337 | Claunch v. Entrekin | 128 So. 2d 100 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 100 (1961)
Buford E. CLAUNCH
v.
R. A. ENTREKIN.
1 Div. 908.
Supreme Court of Alabama.
January 12, 1961.
Rehearing Denied March 30, 1961.
*101 J. Glenn Cobb, Jr., Mobile, for appellant.
Harry Seale, Mobile, for appellee.
STAKELY, Justice.
The question for decision is whether the proceedings for the adoption of a minor child are valid.
On September 16, 1957, R. A. Entrekin filed in the Probate Court of Mobile County, Alabama, a petition to adopt the minor child named Ricky Claunch, six years of age. The petition was filed pursuant to § 1 et seq., Title 27, Code of 1940, as amended, 1955 Cumulative Pocket Part, Code of 1940. The petition shows that the child is now in the custody of his mother in Mobile, Alabama, who has custody of the child by order of the Circuit Court of Mobile County, in Equity, and that the minor child has resided in the home of petitioner since December 1953. The petition contains the following allegation: "7. The father of said child has abandoned and failed to support the child since December, 1953."
The petition prays that the court will take jurisdiction of the matters contained in the petition and order a copy of the petition served on the Department of Public Welfare of the State of Alabama as required by law and will set a day for the hearing of the petition and will make such orders and decrees as may be proper to effectuate the legal adoption of the child.
At the time the petition was filed there was also filed the consent of the mother of the child, Alice Entrekin, to the adoption of the child by her husband, R. A. Entrekin.
On September 16, 1957, the court made an order setting the petition for hearing on November 22, 1957. The record shows that on September 27, 1957, a copy of the petition was received by the State Department of Pensions and Security and in accordance with § 8(7), Title 49, and § 2, Title 27, Code of 1940, the State Department of Pensions and Security designated the Mobile County Department of Pensions and Security to verify the allegations of the petition, to make a thorough investigation of the matter and to report its findings in writing to the court on or before the day appointed for the hearing. The record shows that consideration of the petition for adoption was ordered continued to January 16, 1958.
The record shows that on January 16, 1958, the Mobile County Department of Pensions and Security, acting as the designated agency of the State Department of Pensions and Security, made its report, stating that it had verified the allegations of the petition, had made a thorough investigation of the matter and submits the following findings: (1) Alice Entrekin, the mother of the child, has been interviewed relative to the adoption of the child and has expressed her desire to share the care and responsibility of the child with her present husband, the petitioner. Her signed consent is on file. Buford E. Claunch, the natural father of the child, was interviewed in Chicago, Illinois, on November 19, 1957, relative to the adoption of the child by a representative of the Department of Public Welfare, Chicago, Illinois. He informed the worker that he would not under any circumstances file his consent for the adoption of the child, that he hoped to make a home some day for the child and that he had not seen the child for five years and that they have been "hiding the child" from him. The report further shows that Alice Claunch and Buford E. Claunch were divorced on March 30, 1953, and according to the divorce decree, Alice Claunch was awarded custody and control of the child with the right of Buford E. Claunch to see and visit the child at all reasonable times. The report further shows that the mother claims that she was separated from the father in 1950 and since that date the father has visited the child twice, namely, in 1951 and 1957. The report further shows that according to the mother, since her separation from Buford E. Claunch, he has not contributed to the support of the child. The report further states that records on file in the Mobile County Department of Pensions and Security indicate that the *102 father wrote to the agency concerning the child on June 3, 1951, November 19, 1952, and November 15, 1953. On January 13, 1955 and on June 10, 1955, the father also wrote the agency concerning the child. The report further shows that at no time did the mother refuse permission for the father to visit the child. The report further shows that R. A. Entrekin and Alice Claunch were married on December 24, 1953, in Jackson County, Mississippi.
2. The report further shows that the child is in good physical condition and free of abnormalities and that the child has resided continuously in the home of the petitioner since December 24, 1953. The report further shows that the Mobile County Department of Pensions and Security has found the petitioner to be morally fit and financially able to assume the care and responsibility of the child.
The record further shows that on January 6, 1958, the report of the Department of Pensions and Security by and through its authorized representative was filed in the Probate Court of Mobile County.
On January 16, 1958, the Probate Court of Mobile County entered a decree showing that the petition for the adoption of Ricky Claunch, a minor, by R. A. Entrekin was filed in the court and that the matters contained therein were referred to the State Department of Pensions and Security for investigation and report to the court and that the State Department of Pensions and Security through the Mobile County Department of Pensions and Security filed in the court its report in writing and the cause having been regularly set for hearing, the decree then contains the following:
On January 11, 1960, Buford Claunch, the natural father, filed a motion in the Probate Court of Mobile County, Alabama, to declare null and void and to set aside the adoption decree made by the court on January 16, 1958, on the grounds, in substance, that Buford Claunch had received no formal notice of the adoption proceedings *103 and that Buford Claunch had never abandoned said child and that there is no finding by the court that Buford Claunch abandoned the child.
The court set the motion down for hearing and on the testimony of the father himself found, among other things, that the father admitted that on October 31, 1957, he was contacted by the Welfare Department of Chicago and advised that adoption proceedings would be had on November 7, 1957, and was fully advised of what had been done. The court further found that the evidence offered by the movant shows an abandonment of the child and a continuous nonsupport for the life of the child and a present inability to give the child a home or to provide it with the necessities of life and that it was in the best interest of the child that the decree of adoption by the stepfather be upheld. The court then denied the motion.
I. It appears to be agreed and we think correctly so that in entertaining the adoption proceedings the Probate Court acts as a court of limited jurisdiction. McGowen v. Smith, 264 Ala. 303, 87 So. 2d 429; Franklin v. White, 263 Ala. 223, 82 So. 2d 247.
While we have set out some of the findings of the court on the hearing of the motion, these findings cannot be considered here because we are limited in our review to what appears on the face of the record in the adoption proceedings, since the attack by the motion is a collateral attack. It is a collateral attack because the motion was filed more than thirty days after the decree of adoption. Capps v. Norden, 261 Ala. 676, 75 So. 2d 915; Penton v. Brown-Crummer Inv. Co., 222 Ala. 155, 131 So. 14.
The Alabama cases hold that the review on the motion must be with reference to what is shown on the face of the record. Griffin v. Proctor, 244 Ala. 537, 14 So. 2d 116; Craig v. Root, 247 Ala. 479, 25 So. 2d 147; Constantine v. Constantine, 261 Ala. 40, 72 So. 2d 831; Wise v. Miller, 215 Ala. 660, 111 So. 913. There is a statement in Capps v. Norden, supra, that when a judgment or decree is void on its face, the court has the inherent power and should on motion vacate it. We do not consider that the court by this language intended to limit the review to what is shown on the face of the judgment or decree alone. Griffin v. Proctor, supra, and Constantine v. Constantine, supra, are cited to support the foregoing statement and both of these cited authorities show that the review is as to what appears on the face of the proceedings. The face of the proceedings means all matters which appear on the face of the record. Authorities supra. It is well to add that where, as in the case at bar, the motion is denied, the review is by appeal. Capps v. Norden, supra; Griffin v. Proctor, supra; Craig v. Root, supra; Constantine v. Constantine, supra.
The decree in this case was rendered under § 4, Title 27, Code of 1940, as amended in § 6, Title 27, Code of 1940, 1955 Cumulative Pocket Part, Code of 1940. This amendment provides that when a man marries the mother of a minor child the same procedure should be followed as in adopting a child other than by a stepfather, except that if the report of findings by the State Department of Public Welfare reveals the fact that the child resided in the home of the stepfather for a period of one year or more the court may, within its discretion, if it appears that the adoption is likely to be successful and is for the best interest of the child, immediately enter a final order of adoption.
By § 3, Title 27, Code of 1940, it is provided that the adoption of a minor child shall not be permitted without the consent of his parents, but that the consent of the parent who has abandoned the child may be dispensed with.
Without question the jurisdiction of the probate court was properly invoked because the petition filed in the probate *104 court contained all the allegations necessary to give the court jurisdiction. Merchants National Bank of Mobile v. Morris, 252 Ala. 566, 42 So. 2d 240; Chandler v. Price, 244 Ala. 667, 15 So. 2d 462; § 1 et seq., Title 27, Code of 1940, as amended, 1955 Cumulative Pocket Part, Code of 1940.
As we have stated, where the court acts as one of limited jurisdiction as in the instant case, no presumption of jurisdiction will be indulged. The existence of facts necessary to confer jurisdiction must affirmatively appear on the face of the record. Several of our decisions have indicated that it must appear that the lower court of limited jurisdiction has "ascertained" or found the existence of the jurisdictional facts. Grayson v. Schwab, 235 Ala. 398, 179 So. 377; Pettus v. McClannahan, 52 Ala. 55; Wyatt's Adm'r v. Rambo, 29 Ala. 510. In other words, it must appear on the face of the record that the lower court, being a court of limited jurisdiction, has found or ascertained the jurisdictional facts.
As we have stated, the face of the record includes the entire record of the adoption proceedings in the lower court, not merely that which is recited in the decree or judgment. See Williams et al. v. Trammell et al., 230 N.C. 575, 55 S.E.2d 81; Carson v. Taylor, Tex.Civ.App., 261 S.W. 824. In this case the entire record includes the petition for adoption, the report of the State Department of Pensions and Security made through the Mobile County Department of Pensions and Security, the various orders of the court, including the Decree of Adoption. The report of the authorities which we have referred to is made under § 2, Title 27, Code of 1940. We think that it is analogous to a Master's Report in a court of equity, which is a matter of record (30 C.J.S. Equity § 543, p. 936), and is accorded the weight of the verdict of a jury. Patterson v. Lovelady, 233 Ala. 554, 172 So. 646.
This court has already pointed out in other situations that the recitals of a decree alone are not necessarily conclusive of the question of jurisdiction. Ex parte Griffith, 209 Ala. 158, 95 So. 551. While an express statement or findings in the decree is desirable, it may be possible to ascertain from the record as a whole that the existence of jurisdictional facts has been ascertained. This we consider is the clear implication of the statement by this court in Merchants National Bank of Mobile v. Morris, 252 Ala. 566, 569, 42 So. 2d 240, 242, that "If the decree does not make a recital of the finding of the fact of proper notice in a case of limited jurisdiction, the record must otherwise be sufficient to satisfy statutory requirements."
In the case at bar the decree of adoption recites that the court is satisfied from the facts stated in the report of the State Department of Pensions and Security that the father was interviewed relative to the adoption of the child and stated that he would not file his consent to the adoption of the child. We think this is a sufficient ascertainment to show that the father had notice of the adoption proceedings. In the adoption proceedings there is a recital in the decree that the lower court found "No valid cause * * * why the minor should not be legally adopted." The petition for adoption alleged abandonment. The record shows that the agency to which was entrusted the matter of investigating the allegations of the petition verified those allegations. See § 2, Title 27, Code of 1940.
Taking these matters together with the other matters contained in the record when the adoption decree was made, we think the record sufficient to show an ascertainment of the jurisdictional facts of notice and of abandonment. The decree should be considered in the light of the petition and the other proceedings provided for by the statute. Stuart v. Strickland, 203 Ala. 502, 83 So. 600. We think, therefore, that on the face of the record there is enough to show an ascertainment of the jurisdictional fact of notice and the jurisdictional *105 fact of abandonment and consequently the decree of adoption should be upheld.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | January 12, 1961 |
30065501-0c2e-45af-8d1d-659f2fc6e2f0 | Kennamer Shopping Center, Inc. v. Bi-Low Foods, Inc. | 571 So. 2d 299 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 299 (1990)
KENNAMER SHOPPING CENTER, INC.
v.
BI-LOW FOODS, INC., and Sav-U-Foods.
89-1409.
Supreme Court of Alabama.
November 16, 1990.
Charles S. Rodenhauser of Rodenhauser & O'Dell, Huntsville, for appellant.
George M. Beason, Jr. of Martinson & Beason, Huntsville, for appellees.
ADAMS, Justice.
Kennamer Shopping Center, Inc. ("Kennamer"), appeals from a summary judgment against it and in favor of Bi-Low Foods, Inc. ("Bi-Low"), operator of Sav-U-Foods, in an unlawful detainer action. We affirm.
Kennamer (lessor) and Bi-Low (lessee) are successors in interest to a lease agreement duly executed on January 28, 1983, by N.D. Kennamer and Ronald Brooks regarding a store building and lot in Huntsville, Alabama. The lease provided for a 10-year term beginning on June 1, 1985, and ending on June 1, 1995. The agreement provided that the rental fee of $1250 would be due on the first day of each month and would be considered delinquent on the 10th day. It provided for non-recourse assignment by the lessee and granted the lessee the option to extend the lease beyond the expiration of the term. Although the lease granted to the lessee the right to terminate the tenancy upon 60 days' written notice, it contained no covenants pertaining to default or granting a right of re-entry or power of termination to the lessor.
Approximately one year into the term, Bi-Low entered the premises through the assignment provision. At that time, Mr. *300 Wells Johnston, president of Kennamer Shopping Center, Inc., orally informed Bi-Low that Bi-Low would be expected to "abide exactly by all the terms of the lease."
Kennamer concedes that until June 1988, all of Bi-Low's monthly rental payments were "timely" made. However, in that month, Kennamer received the payment on the 15th of the month, five days delinquent. Kennamer returned the check for the June rental payment and refused subsequent payments through December, even though they were timely tendered by Bi-Low.
On June 28, 1988, Kennamer served Bi-Low with a 10-day written demand to vacate the premises. Bi-Low submitted an opposing affidavit alleging its right to continued possession, and Kennamer subsequently filed this unlawful detainer action in the Madison District Court. The district court entered a judgment for Kennamer, and Bi-Low appealed to the Circuit Court of Madison County for a trial de novo. The circuit court granted Bi-Low's motion for summary judgment, and Kennamer appealed.
Kennamer contends that the summary judgment was improper because, it argues, the case involves disputed issues of fact regarding the statutory sufficiency of Kennamer's purported termination of the leasehold. But, as we see it, the dispositive issue is whether Kennamer was authorized by statute to institute the unlawful detainer action in the first instance. We hold that it was not.
An unlawful detainer action will lie where "one who has lawfully entered into possession of lands as tenant fails or refuses, on 10 days' demand in writing after the termination of his possessory interest, to deliver the possession thereof to anyone lawfully entitled thereto." Ala.Code 1975, § 6-6-310 (emphasis added). The statute is thus triggered only by the termination of the tenant's possessory interest.
The possessory interest may terminate in one of three ways. First, it may terminate upon the expiration of a "tenancy by the month or for any other term less than one year, where the tenant holds over without special agreement." § 35-9-5. Second, it may terminate upon expiration of the term of the leasehold as expressed in the lease. § 35-9-8. Finally, a tenant's possessory interest may terminate upon "default [of] any of the terms of a lease." § 35-9-6. This lease provided for a term of years and contained no provision granting Kennamer a right of re-entry or power of termination; therefore, if Kennamer was authorized to institute this suit, that authorization must be found in § 35-9-6.
However, § 35-9-6 does not, of itself, provide an independent right of re-entry or power of termination upon failure of terms of the leasehold agreement. No such right or power exists upon default in the absence of a provision therefor in the agreement itself. See D. Huskey & S. Etheredge, Landlord and Tenant Breach & Remedies: The Law in Alabama § 3-4 (1981). More specifically, this Court has long held that the non-payment of rent does not constitute a statutory default giving rise to a right of re-entry or power of termination independent of covenants in the lease. Moriarty v. Dziak, 435 So. 2d 35 (Ala.1983); Ferguson v. Callahan, 262 Ala. 117, 76 So. 2d 856 (1954); Myles v. Strange, 226 Ala. 49, 145 So. 313 (1932).
Kennamer contends, however, that a factual issue exists as to whether its president's oral statements to representatives of Bi-Low that Bi-Low would be expected to "abide exactly by all the terms of the lease" constitute a covenant sufficient to trigger § 35-9-6. We find no merit in that argument. Such statements obviously violate the Statute of Frauds.
"An oral modification of a valid lease is invalid if both the original and remaining periods exceed the period specified in the controlling Statute of Frauds." Restatement (Second) of Property § 2.4 (1977). In Alabama, every leasehold interest exceeding one year must be evidenced by a valid written agreement. § 8-9-2(5). In this case, the lease period began on June 1, 1985, three years before the dilatory payment, and was to end on June 1, 1995. Thus, the alleged oral statements of Kennamer *301 fall squarely within the Statute of Frauds.
In short, we find no evidence in the record to support Kennamer's argument that Bi-Low's possessory interest had terminated. Thus, the statutes authorizing an unlawful detainer action were never triggered. No factual issue arises, therefore, regarding Kennamer's compliance or noncompliance with the statutory procedure, and Bi-Low's motion for summary judgment was properly granted. The judgment of the trial court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | November 16, 1990 |
7e932330-e218-4c9e-88df-85a12c51a7dd | UNITED STEEL WORKERS v. Craig | 571 So. 2d 1101 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1101 (1990)
UNITED STEELWORKERS OF AMERICA, AFL-CIO, et al.
v.
Robert CRAIG, et al.
88-1542.
Supreme Court of Alabama.
November 21, 1990.
*1102 Bernard Kleiman, Gen. Counsel, and Carl B. Frankel, Assoc. Gen. Counsel, United Steelworkers of America and Franklin G. Shuler, Jr. and Jay Smith of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for appellants.
Collins Pettaway, Jr. of Chestnut, Sanders, Sanders, Williams & Pettaway, Selma, for appellees.
PER CURIAM.
We hold that the duty, if any, on which the plaintiffs' claims rest, arises solely out of federal labor law (the Labor Management Relations Act, 29 U.S.C. § 141 et seq.; and the National Labor Relations Act, 29 U.S.C. § 151 et seq.). The fact that the plaintiffs couched their suit in language indicative of state-law claims does not create a state-law cause of action where, as here, a state-law claim does not otherwise exist. In other words, but for the duty of fair representation implied in the union-employee relationship, inherent in federal labor law, no cause of action exists for legal malpractice against a nonlawyer, based on the nonlawyer's "failing to adequately represent the plaintiffs" in a litigated "discrimination" suit. See Erkins v. United Steelworkers of America, AFL-CIO-CLC, 723 F.2d 837 (11th Cir.), cert. denied, 467 U.S. 1243, 104 S. Ct. 3517, 82 L. Ed. 2d 825 (1984).
Therefore, because the plaintiffs concede that, if the preemptive effect of federal law is applicable, their claims are time-barred, we reverse the judgments appealed from and render judgment for the defendants. See International Brotherhood of Electrical Workers v. Powell, 370 So. 2d 987 (Ala. 1979).
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur. | November 21, 1990 |
c2b151c5-1ce8-449a-95bb-03b5d6d6565a | James v. Brewton Motel Management, Inc. | 570 So. 2d 1225 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1225 (1990)
Louise JAMES, as administratrix of the estate of Richard Gregory James, Sr., deceased, et al.
v.
BREWTON MOTEL MANAGEMENT, INC., d/b/a Brewton Motor Inn, Ltd.
89-721.
Supreme Court of Alabama.
November 16, 1990.
Paul M. Harden and Anthony J. Bishop, Evergreen, and Mack B. Binion and Donna L. Ward of Briskman & Binion, Mobile, for appellants.
William P. Traylor III and Deborah S. Braden, Birmingham, for appellee.
*1226 MADDOX, Justice.
The main issues in this case are: (1) whether the minor children of one who is killed because of his own intoxication are protected parties and, thus, have a cause of action under the Alabama Dram Shop Act, Ala.Code 1975, § 6-5-71, and (2) whether the voluntary intoxication of the deceased is a defense to an action brought by the deceased's minor children under the Dram Shop Act.
On October 10, 1987, Richard Gregory James, Sr. (hereinafter "James"), entered the Brewton Motor Inn to purchase and consume alcoholic beverages; James had been drinking prior to arriving at the Brewton Motor Inn. James was with a group of approximately 15 people. Sharon Baggett, the bartender at the Motor Inn, testified that she did not know that James had been drinking earlier and, according to her testimony, she served James one drink. Other testimony by James's wife conflicted with Baggett's testimony, however; James's wife stated that James was served three drinks at the Motor Inn between 12:15 a.m. and 1:30 a.m., and witnesses testified that James turned over a table, stumbled while dancing, and threw a glass at his wife. It was only when he threw the glass, according to the witnesses, that Baggett and another employee of the Motor Inn, Bob Brawner, decided that James was intoxicated and refused to serve James any more alcoholic beverages. The testimony also showed that Brawner asked James to leave, but Baggett testified that she did not know whether James or his wife was going to be driving.
Testimony showed that James had been a customer at the Motor Inn's bar previously and had been intoxicated to the point of being refused further service, and there was evidence also that the Motor Inn had been told by James's relatives that he was an alcoholic. Baggett testified, however, that she had never been told that.
After leaving the Motor Inn, James drove his automobile to a store and then back to the Motor Inn. There, James's wife got out of the car but did not close the passenger side door. Apparently, in attempting to drive out of the parking lot and to close the passenger side door at the same time, James fell out of the car and was run over by his car. He died as a result of his injuries.
The complaint was filed against Brewton Motel Management, Inc., the operator of the Brewton Motor Inn, by Louise James, the mother of Richard Gregory James, Sr., and administratrix of his estate; Carin James, the widow; and the deceased's two minor sons, one of whom sued through Carin James and the other through Louise. The complaint alleged that the Motor Inn had unlawfully sold James alcoholic beverages.[1]
The defendant filed a "motion to dismiss, or, in the alternative, a motion for summary judgment," alleging that the minor plaintiffs were not included in the protected class of persons entitled to bring an action pursuant to Ala.Code 1975, § 6-5-71, the Alabama Dram Shop Act, and that the plaintiffs could not recover under § 6-5-71 because of James's voluntary intoxication. The trial court granted the defendant's motion, after considering the arguments of counsel and the deposition testimony filed with the motion, finding "that because the death of plaintiffs' decedent, Richard Gregory James, was caused by the decedent's own voluntary intoxication, the Plaintiffs do not have a cause of action against the defendant under Alabama Code § 6-5-71 or § 28-3-49 or otherwise." James's two minor sons appealed.[2]
Section 6-5-71(a) provides in pertinent part:
(Emphasis added.)
The Alabama Alcoholic Beverage Control Board's regulation No. 20-X-6-.02(4), promulgated pursuant to § 28-3-49, makes it unlawful for an on-premises licensee to serve any person alcoholic beverages if that person appears to be intoxicated. There was evidence, of course, that the defendant sold liquor to James contrary to that regulation and contrary to statute; therefore, the question presented is one of law: Do the children have a cause of action against the seller of the intoxicating beverage? We hold that they do.
The law of Alabama relating to liability for damages under the provisions of § 6-5-71(a) is not absolutely clear, and we take this opportunity to state what we believe the Legislature intended by enacting the statute that has become § 6-5-71.
Questions concerning which persons the Legislature intended to include within the protected class of persons have been presented to this Court in several cases in the last decade.
This Court, in Maples v. Chinese Palace, Inc., 389 So. 2d 120 (Ala.1980), had one of its first opportunities to address the question, but a majority of the Court in that case could not agree, and the plurality opinion does not clearly delineate the class of persons protected under § 6-5-71.[3] In Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So. 2d 159 (Ala.1987), the Court once again had an opportunity to determine the extent of the protected class included in § 6-5-71. In Ward, a customer sued a lounge because of injuries he received in the lounge when he was struck in the eye and injured by another customer. This Court held that Ward was entitled to maintain an action against the lounge under the provisions of § 6-5-71.
The trial judge, in dismissing the plaintiffs' action here, apparently felt that Maples and Ward, cases cited to him by the defendant, supported the dismissal, because he cited both cases in his judgment of dismissal.
The defendant continues to rely upon Maples and Ward to support its argument that "Alabama law does not recognize a cause of action for dependents of the person intoxicated but rather recognizes a cause of action for dependents of those injured as a result of the actions of an intoxicated person." It also cites Parker v. Miller Brewing Co., 560 So. 2d 1030 (Ala. 1990), and argues that, in that case, this Court held that a mother, as the administratrix of the estate of her deceased minor, who had died as a result of intoxication, did not fall within the category of protected persons. It contends that Ward stands for the proposition that, to come within the classification of enumerated plaintiffs, a wife, child, or parent must stand in a special relation to the party injured by the intoxicated person and that the minors here stand in a special relation to the intoxicated person, but that the intoxicated person cannot be the same person as the injured person. *1228 In support of this argument, the defendant points to the language in Ward, which states that "the 1909 legislature must have intended that `wife, child, [and] parent' refer to those of the party injured in person by the intoxicated person." 511 So. 2d at 164.
After a careful review of Maples, Ward, and Parker, we are of the opinion that the facts of each can be distinguished from the facts of this case. In Maples, most of the Court observed that the parent was a protected person under § 6-5-71 and had a cause of action thereunder, and a careful reading of Maples shows that the mother in that case was not allowed to maintain her action only because she did not sustain any of the damages specified in the statute. See the explanation of the vote in Maples in footnote 3.
While the language in Ward is not completely clear, it is apparent that the statement quoted abovethat the words "`wife, child, [and] parent' refer to those of the party injured in person by the intoxicated person"was not meant to give an exclusive list of the members of the protected class. Indeed, the entire paragraph from which the defendant quotes reads as follows:
511 So. 2d at 163-64 (emphasis original). Thus, a close reading of Ward shows that the Court was concerned with the interaction of § 6-5-71 and the rule of intra-family immunity in the context of a wife, child, or parent suing an intoxicated person to whom they were related. Of course, in this case, the children of the intoxicated person are not attempting to sue the intoxicated person but are attempting to sue the party that furnished the alcohol to the intoxicated person. The plaintiff in Ward was not related to the intoxicated person, and the issue was whether the plaintiff was a protected member of a class under the Act. Therefore, the discussion of who was included in the class of "parent, child, [and] parent" was not absolutely necessary to a decision in that case and can be accurately designated as dicta.
In Parker, this Court had an opportunity to revisit § 6-5-71. In Parker, the plaintiff was the mother of the intoxicated minor who was killed. This Court, citing Ward, discussed the classes of potential plaintiffs, as follows:
"The second class of potential plaintiffs is the `other person injured':
"The plaintiff argues that individually she falls within this `other person' category as one `injured in person, property or means of support by any intoxicated person or in consequence of the intoxication of any person.' She argues that she was injured in consequence of the intoxication of her daughter by reason of the sale made by Grant's University Market to two minors of intoxicating beverages `contrary to the provisions of law,' i.e., in violation of § 28-3A-25(a)(3) and Alabama Alcoholic Beverage Control Board Rule 20-X-6-.10.
"However, assuming she could be found to fit into the `other person' category, she still does not have a claim, because under § 6-5-71(c), a party injured may commence an action `against the person intoxicated or the person who furnished the liquor.' When we revisit the question of whether any of these defendants `furnished' or `provided' the liquor to Miriam Paige Small, we find that they did not.
"We said the following in Martin v. Watts, 513 So. 2d 958 (Ala.1987):
"Id., at 963. These defendants did not provide the alcoholic beverages to the intoxicated person, nor was there a sale by these defendants to the intoxicated person. Therefore, the plaintiff has no cause of action under the Dram Shop Act. See Beeson v. Scoles Cadillac Corp., 506 So. 2d 999, 1001 (Ala.1987)."
560 So. 2d at 1033-34.
It is apparent from a reading of Parker that this Court held that the mother did not state a claim under § 6-5-71 only because the defendants did not "furnish" or "provide" the liquor to the deceased intoxicated person. There was no holding that the mother of an intoxicated person would not be a protected person under the provisions of § 6-5-71 if the facts showed that all of the other elements of an action under the Act had been met. Parker is, therefore, distinguishable from this case because a majority of this Court was of the opinion that the evidence showed that the defendants in that case did not "furnish" the liquor to the intoxicated person.[4] In this case, of course, there is substantial evidence that the defendants did furnish the liquor to James.
The holding we make is consistent with the holdings in other States that have considered dram shop acts similar to Alabama's. Those jurisdictions have held that the spouse, children, and parents of the intoxicated person are included in the class of protected persons. Jones v. Fisher, 309 N.W.2d 726 (Minn.1981) (spouse of one who becomes intoxicated is viewed as an innocent third party); Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972) (parents and child of deceased intoxicated person allowed to recover); Matalavage v. Sadler, 77 A.D.2d 39, 432 N.Y.S.2d 103 (1980) (infant child of deceased intoxicated person allowed to sue). The court stated in Matalavage:
77 A.D.2d at 43, 432 N.Y.S.2d at 106 (emphasis original).
Based on the foregoing, and in view of the fact that there was substantial evidence that James was sold alcohol contrary to law and that as a consequence he caused his own death, we hold that under the language of the Actthat "[e]very wife, child, parent or other person who shall be injured in ... means of support by any intoxicated person or in consequence of the intoxication of any person shall have a right of action"James's minor children are within the protected class of persons in the Alabama Dram Shop Act.
We address one further issue presented: Whether the voluntary consumption of alcohol affects or destroys claims of the class of persons protected under § 6-5-71. We hold that it does not. At common law, no cause of action existed in favor of the intoxicated person, because it was generally held that the voluntary drinking, and not the sale, proximately caused the injury; voluntary drinking was considered to be a cause intervening between the negligent dispensing and the subsequent injury. King v. Henkie, 80 Ala. 505 (1886). Alabama's Dram Shop Act specifically provides relief to a protected class if the unlawfully sold alcohol causes the intoxication and results in damage or injury to a protected person. The Act focuses on the unlawful sale and on members of the protected class who may suffer damage or injury as a proximate result of the wrongful act; it necessarily envisions that the intoxicated person voluntarily consumed the alcohol.
Legislative intent is determined from the language of the act, unless the language is ambiguous or leads to a result that the legislature could not have intended. Martin v. Watts, 513 So. 2d 958, 961 (Ala.1987). The Alabama Dram Shop Act is clear and it makes no distinction between voluntary and involuntary consumption of alcohol. If the Act was limited to involuntary intoxication, then the Act would have virtually no application. If the Legislature had intended for the Act to apply only in cases of involuntary intoxication, it could have so stated. The conclusion we reach here has been reached in another jurisdiction. The Minnesota Supreme Court has held that the voluntary consumption by the intoxicated person does not destroy a claim by a protected person. Jones v. Fisher, 309 N.W.2d 726 (Minn.1981).
The defendant also argues that the common law rule of tort immunity still prevails in Alabama as between parent and child, and that intra-family immunity precludes children from suing an intoxicated parent who causes them injury. However, that issue is not before us, as the children here are not attempting to sue their father; under the Act, they are stating a claim against the furnisher of the alcohol.
The defendant further contends that these minors are basically attempting to bring a wrongful death action in the guise of an action under § 6-5-71 and that wrongful death actions are not permitted under the Alabama Dram Shop Act. These children are not attempting to sue for the wrongful death of their father; they clearly allege damages for loss of support, as allowed by the Act.
For the above stated reasons, the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
HOUSTON, J., concurs specially.
*1231 HOUSTON, Justice (concurring specially).
I am persuaded that Ala.Code 1975, § 6-5-71(a), was clearly a temperance measure that succeeded in being enacted due to two historical events: the formation of the Alabama contingent of the Anti-Saloon League of America in 1904 and the 1906 election of Governor Braxton Bragg Comer, who used the prohibition issue to achieve his phenomenal political success. Criminal and civil legislation was enacted to restrain the business of manufacturing, selling, or distributing liquor for a profit. What is now § 6-5-71 was § 8 of the "Fuller Bill," which became Act No. 191, Ala. Acts 1909 (Special Session), pages 63-96. The title of the Fuller Bill stated that its purpose was "[t]o further suppress the evils of intemperance, and to secure obedience to and the enforcement of, and to prevent the evasion of, the laws of the State for the promotion of temperance and for the prohibition of the manufacture of and traffic in or unlawful disposition of prohibited liquors and beverages."
Section 37 of the Fuller Bill provided:
There is substantial evidence (evidence sufficient to withstand a motion for summary judgment) that the minor plaintiffs were children of Richard Gregory James, Sr., deceased, and were dependent upon him for their support; that the defendant, an on-premises liquor licensee, served their father alcoholic beverages while he appeared to be intoxicated, in violation of Alabama Alcoholic Beverage Control Board regulation No. 20-X-6-.02(4); and that as a proximate result of this illegal sale, their father was killed and the minor plaintiffs were deprived of their support.
Section 6-5-71(a) provides a cause of action for these minor plaintiffs; therefore, summary judgment should not have been entered for the defendant. Their "injury" or "damage" was the loss of their means of support and for this injury the statute allows "damages actually sustained" (i.e., compensatory damages), even though their father was killed and even though in this state wrongful death damages are ordinarily punitive only. The phrase "for all damages actually sustained" has to be interpreted as including an injury in the form of a loss of means of support. If the "selling... to another, contrary to the provisions of law, [of] any liquors or beverages" was intentional, then exemplary damages can also be recovered. The minor children's claims under § 6-5-71(a) are not derivative and therefore are not barred by their father's contributory negligence. A review of this Code section in its historical setting (Martin v. Watts, 513 So. 2d 958, 965-92 (Ala.1987) (Houston, J., concurring in part and dissenting in part)) causes me to believe that the Legislature intended to give children "injured in [their] means of support" a cause of action to recover the support that they lost and to allow them to recover it from those persons whose illegal sale of alcoholic beverages proximately caused their loss. This legislation was enacted for the benefit of particular members of the family and its remedy is not derivative. For other such legislation, see Boykin v. Magnolia Bay, Inc., 570 So. 2d 639 (Ala.1990).
[1] All claims of Carin, the wife of the deceased, were dropped in a later amendment.
[2] James's estate appealed but did not raise any issues on appeal.
[3] In reversing the trial court's dismissal of the mother's claims filed pursuant to the provisions of §§ 6-5-70 and -71, respectively, the Maples Court held that it did not appear beyond doubt that the plaintiff-mother could prove no set of facts in support of her § 6-5-70 claim. Maples, 389 So. 2d at 124. The holding of Maples concerning the viability of the mother's claims under § 6-5-71 is less clear. In the main opinion, the Court stated that "[t]he words `every wife, child, parent,' in § 6-5-71 denote relationship to the person to whom the intoxicating liquors were sold." Id. Justice Bloodworth, in a concurring opinion, stated that he agreed with the holding that the plaintiff had stated a cause of action under § 6-5-70, and he stated, "I would go further, however, and hold, as the original opinion held, that the plaintiff stated a good cause of action under Code 1975, § 6-5-71 in counts nine and ten of her amended complaint." Justice Maddox, concurring in part and dissenting in part, was of the opinion that the plaintiff had stated a cause of action under § 6-5-71. 389 So. 2d at 125. Justice Jones, with Justices Shores and Beatty concurring, was of the opinion that the plaintiff-mother was within the protected class, but that she came within the restrictions on the right of action under § 6-5-71, because "[s]he was neither injured in person or in property, nor did she suffer any loss of support in consequence of the intoxication of her minor daughter." 389 So. 2d at 127.
[4] In Parker, Hornsby, C.J., dissented because he was of the opinion that there was sufficient evidence of causation in that case to present a jury issue. | November 16, 1990 |
f11137c4-b60c-4976-85aa-d1d17f327325 | Rodopoulos v. Sam Piki Enterprises, Inc. | 570 So. 2d 661 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 661 (1990)
William RODOPOULOS and Malb's Associates, Inc.
v.
SAM PIKI ENTERPRISES, INC., et al.
89-742.
Supreme Court of Alabama.
September 28, 1990.
As Modified on Denial of Rehearing November 21, 1990.
*662 Leo E. Costello of Costello & Stott, Birmingham, for appellants.
Jake B. Mathews, Jr. of Merrill, Merrill, Mathews & Allen, Anniston, for appellees.
STEAGALL, Justice.
On August 14, 1986, Sam Piki Enterprises, Inc., David A. Harvey, and Henry W. Freeman sued Malb's Associates, Inc., d/b/a Mata's Greek Pizza & Grinders; William Rodopoulos; and Mata Rodopoulos, alleging fraud and deceit and breach of contract arising out of the sale of a franchise. In their answer, the defendants denied the allegations of the complaint and raised the following defenses: failure to state a claim upon which relief may be granted, waiver, estoppel, and the statute of limitations. Defendant Malb's Associates counterclaimed, alleging breach of contract and money due on an open account.
On April 4, 1988, the defendants filed a motion for partial summary judgment as to the fraud claim. The trial court denied the motion on September 16, 1988.
On September 8, 1988, the plaintiffs filed an amended complaint, adding new counts alleging "false representation" and requesting attorney fees. The defendants filed a motion to strike the amendment on the grounds that the plaintiffs had not obtained leave of court, that the statutory period of limitations for bringing a new cause of action had expired, that the allegations would not support a claim of fraud, that attorney fees were not recoverable, that the claims in the amended complaint were barred by laches, and that the defendants would be prejudiced if the amendment were allowed, because discovery had been completed. The trial court denied the motion on November 10, 1988.
On February 22, 1989, the defendants filed a motion to reconsider the denial of the motion for partial summary judgment and the denial of the motion to strike. The defendants requested a hearing on this motion. The motion was set for a hearing on June 7, 1989; the record does not reveal that this motion was heard by or ruled on by the trial court.
On April 21, 1989, the plaintiffs again amended their complaint, alleging that Malb's Associates was the alter ego of William and Mata Rodopoulos and demanding *663 judgment against those individuals for all matters complained of against the corporation. The defendants filed a motion to strike that amendment on the grounds that plaintiffs had not obtained leave of court, that the statutory period of limitations had expired, and that allowing the amendment would unduly complicate the case. The trial court denied the motion on May 8, 1989.
The case was tried before a jury on November 13, 1989. No evidence was presented on the breach of contract claims, and the court's charge to the jury made no mention of the breach of contract claims. Only the fraud issues and the open account issue were submitted to the jury. The jury returned verdicts in the amount of $170,000 for the plaintiffs on those issues.[1] The trial court entered a judgment pursuant to the jury verdicts on November 17, 1989.
On December 14, 1989, the defendants filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. On January 10, 1990, the trial court denied the motion. From the denial of their motion for judgment notwithstanding the verdict, the defendants appeal.
The defendants first argue that the complaint, as originally filed, failed to state a cause of action in fraud. Specifically, the defendants contend that the plaintiffs failed to allege a misrepresentation of an existing material fact upon which the plaintiffs relied to their detriment and that the representations alleged in the complaint to be false are merely expressions of opinion.
The fraud count of the plaintiffs' original complaint reads as follows:
Upon review of the applicable law, we conclude that the complaint states a cause of action for fraud. See Ala.Code 1975, § 6-5-101 et seq.
The defendants next contend that the trial court erred in not dismissing the plaintiffs' first amendment to their complaint because the statutory period of limitations as to the matters alleged therein had expired. The defendants argue that the plaintiffs, through an amendment filed after the statutory period of limitations for the cause of action had expired, have alleged a new cause of action based on new facts and that, therefore, the amendment does not relate back.
In McCullough v. Warfield, 523 So. 2d 374 (Ala.1988), this Court, quoting Cooper v. Thomas, 456 So. 2d 280, 283 (Ala.1984), stated:
523 So. 2d at 375.
In their first amendment, the plaintiffs added the following paragraphs to the fraud count of their original complaint:
The plaintiffs also added two counts based on "false representation" and one count requesting attorney fees.
*665 We find that this amendment is merely a more definite statement, or a refinement, of the fraud cause of action set out in the original complaint. The amendment, therefore, relates back to the original complaint, and the trial court correctly allowed the amendment.
The defendants' next contention is that the trial court erred in permitting the plaintiffs to present their claim that the defendants violated certain regulations of the Federal Trade Commission ("FTC"). The defendants argue that the trial court should have dismissed that part of the first amended complaint that alleged violations of FTC regulations and should not have permitted the jury to consider the regulations as setting a standard of conduct in regard to fraud.
The trial court's charge to the jury concerning the FTC regulations was as follows:
In Industrial Tile, Inc. v. Stewart, 388 So. 2d 171 (Ala.1980), and Knight v. Burns, Kirkley & Williams Constr. Co., 331 So. 2d 651 (Ala.1976), this Court held that the Occupational Safety and Health Act standards were admissible regarding the standard of care to be followed in a negligence case. Osborne Truck Lines, Inc. v. Langston, 454 So. 2d 1317 (Ala.1984), cited Industrial Tile, Inc. and Knight and held that "[b]y analogy, an instruction that the jury could consider the Motor Carrier Safety Regulations in determining defendants' standard of care [in a negligence case] would have been appropriate."
By further analogy, we now hold that FTC regulations are admissible in this fraud case with regard to the defendants' duty to disclose. The trial court correctly allowed the amendment to the complaint concerning the duty owed by the defendants under the FTC regulations and correctly permitted the jury to consider the FTC regulations in determining the duty owed by the defendants.
The defendants also argue that there was no evidence of a violation of the FTC regulations at the time of the plaintiffs' reliance on the defendants' misrepresentations and failure to disclose. The defendants argue that the plaintiffs' reliance, if any, occurred in June 1984, when they purchased an existing pizza restaurant. They specifically argue that because the franchise agreement was not signed until August or September 1984, the defendants were not in violation of the FTC regulations at the time the reliance occurred.
The regulation at 16 C.F.R. § 436.1 (1990) reads, in pertinent part, as follows:
"Personal meeting" is defined at 16 C.F.R. §436.2(o) as a "face-to-face meeting between a franchisor or franchise broker (or any agent, representative, or employee thereof) and a prospective franchisee which is held for the purpose of discussing the sale or possible sale of a franchise."
*666 The record reveals that the initial discussions concerning the franchise took place sometime in 1983, prior to the plaintiffs' purchase of the existing restaurant. Using 16 C.F.R. § 436.1 as the standard of care, we find that there was sufficient evidence from which the jury could conclude that the defendants breached their duty to the plaintiffs at the time of the plaintiffs' reliance.
The defendants also contend that the trial court erred in submitting the fraud issues to the jury because, they say, the reason for and the extent of the plaintiffs' loss was speculative and because, they say, the plaintiffs' reliance on the fraud was not "reasonable."[2]
In Shades Ridge Holding Co. v. Cobbs, Allen & Hall Mortgage Co., 390 So. 2d 601 (Ala.1980), this Court stated:
390 So. 2d at 607.
In Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987), we further explained the proximate cause standard and standards applicable to damages awards in fraud cases. Quoting P & S Business Machines, Inc. v. Olympia U.S.A., Inc., 707 F.2d 1321, 1323-24 (11th Cir.1983), we stated:
"`In Alabama, one injured by fraudulent representation is entitled to recover all damages which were in the contemplation of the parties or which were either necessary or natural and proximate consequences of the fraud. Ala. Code § 6-5-101 (1975); Fidelity and Casualty Co. v. J.D. Pittman Tractor Co., 244 Ala. 354, 13 So. 2d 669 (1943); Jackson Co. v. Faulkner, 55 Ala.App. 354, 315 So. 2d 591 (1975).... Lost profits may be included in properly recoverable damages in a fraud action, but the jury must also decide if evidence shows that other damages have been incurred and that they proximately resulted from the defendant's actions.'"
506 So. 2d at 334 (emphasis added). In Liberty Nat'l Life Ins. Co. v. Sherrill, 551 So. 2d 272, 273 (Ala.1989), we said that "whether the reliance was reasonable or justified was for the trier of fact."
The reason for the plaintiffs' loss was a question for the jury, as was the extent of that loss and the justification for the plaintiffs' reliance. The trial court correctly submitted the fraud issues to the jury.
Finally, the contention of Malb's Associates that the trial court erred in failing to direct a verdict in its favor on its counterclaim is without merit. The evidence of record is sufficient to support the trial court's denial of the directed verdict motion and its submission of the counterclaim to the jury.
Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
MADDOX, JONES, ALMON and ADAMS, JJ., concur.
[1] The defendants allege in their brief that the breach of contract claims were dismissed; however, we find no entry of dismissal in the record. Notwithstanding, on the authority of Poston v. Gaddis, 372 So. 2d 1099 (Ala. 1979), we will consider the judgment final as to all issues.
[2] See Hickox v. Stover, 551 So. 2d 259 (Ala.1989), wherein this Court spoke of "justifiable" rather than "reasonable" reliance. | November 21, 1990 |
12f9100d-4bd9-4e3b-840c-57057735538a | Hayes v. Brookwood Hosp. | 572 So. 2d 1251 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1251 (1990)
Kathy K. HAYES, as administratrix of the Estate of Mary Hayes Harris, deceased
v.
BROOKWOOD HOSPITAL, et al.
89-996.
Supreme Court of Alabama.
December 14, 1990.
*1252 Stephen D. Heninger of Heninger, Burge and Vargo, Birmingham, for appellant.
W. Stancil Starnes and Michael A. Florie of Starnes & Atchison, Birmingham, for appellees John C. Glover, M.D., and Hazel A. Joyce.
Lyman H. Harris and Elizabeth Patterson Wallace of Harris, Evans & Downs, Birmingham, for appellees Brookwood Hosp. and Clara Kizer.
HORNSBY, Chief Justice.
This medical negligence action was filed in 1982. It was brought by Mary Hayes Harris against her health care providers, Drs. John C. Glover and Hazel A. Joyce; Brookwood Hospital; Brookwood Clinic; Brookwood Health Services Inc.; American Medical International; Radiology Associates, P.A.; and Clara Kizer. Harris filed her complaint on August 18, 1982, at which time she was represented by attorneys Donald B. Sweeney, Jr., and Sandra K. Vinik. On February 7, 1984, Harris amended her complaint. In 1986, Steve Heninger became Harris's attorney, and the case was continually set and reset until September 18, 1989. Harris died on July 12, 1989, and her attorney filed a suggestion of death on August 10, 1989.[1] On September 12, 1989, Harris's attorney was granted a continuance from the original September 18, 1989, trial date, and the case was reset for February 26, 1990.
After filing the suggestion of death on August 10, 1989, Harris's attorney failed to file a substitution pursuant to A.R.Civ.P. 25(a)(1), which states that a substitution must be filed not later than six months after the death is suggested upon the record. At the docket call on February 23, 1990, the defendants filed a motion to dismiss the case because of noncompliance with Rule 25(a)(1). The trial court granted the motion. Harris's attorney, on February 26, 1990,[2] filed a motion to amend the complaint to substitute the administratrix of Harris's estate as plaintiff and to have the action reinstated, but the trial court, after a hearing on March 8, 1990, denied the motion. The issue before us is whether the trial court correctly denied the motion to substitute the administratrix of Harris's estate as the plaintiff and to reinstate the action.
Harris's attorney argues that the six-month time limit of Rule 25(a)(1) should not be construed as mandatory, and that, in light of Rule 6(b), a trial court, in applying Rule 25(a)(1), should have the discretion to allow a late substitution if the failure to comply with the rule has resulted from neglect that in justice and fairness should be excused. We agree with the attorney that the trial court should have such discretion. Therefore, we reverse the judgment of dismissal and remand the cause for the trial court to determine whether the late attempt to substitute was the result of excusable neglect.
Rule 25(a)(1) provides:
(Emphasis added.)
Harris's attorney argues that the law of Alabama should allow the trial court some discretion when it is shown that the failure to substitute within the six-month period is the result of excusable neglect. Harris's attorney maintains that A.R.Civ.P. 6(b) provides that the trial court in its discretion may enlarge the time period where good cause is shown. Rule 6(b) provides:
Harris's attorney reasons thatbecause the only exclusions prescribed in Rule 6(b) are Rules 50(b), 52(b), 59(b), (d), and (e), and 60(b)by inference Rule 6(b) applies to Rule 25. However, in Henderson v. Briarcliff Nursing Home, 451 So. 2d 282 (Ala. 1984), we stated:
Id. at 284.
Harris's attorney cites this Court to the recent case of Illinois Central Gulf R.R. v. Price, 539 So. 2d 202 (Ala.1988) where we noted:
Id. at 203. In Illinois Central Gulf R.R., we considered whether dismissal under Rule 25(a)(1) must be with or without prejudice where the defendant moved for dismissal with prejudice. Harris's attorney argues that our citation to Jernigan in Illinois Central Gulf R.R. stands for the proposition that under Rule 6(b) Alabama allows the trial court some discretion to extend the time period prescribed in Rule 25(a)(1). However, even though the Georgia procedural rule construed in Jernigan is similar to Alabama's Rule 25(a)(1),[3] the *1254 Jernigan court specifically held that the application of Georgia's procedural rule was discretionary with the court after 180 days upon a showing of excusable neglect. In contrast, this Court has specifically held that Rule 25(a)(1) is mandatory. Henderson v. Briarcliff Nursing Home, supra; Brown v. Wheeler, 437 So. 2d 521 (Ala.1983); Starr v. Doctors Hosp., 426 So. 2d 826 (Ala.1983).
Harris's attorney further argues that A.R.Civ.P. 25(a)(1) is virtually identical to F.R.Civ.P. 25(a)(1), except for the time provided for substitution, i.e., six-months under Alabama's rule and 90 days under the federal rule. He urges this Court to adopt the more flexible approach used in F.R. Civ.P. 25(a)(1), which allows the trial court discretion in enlarging the time period where excusable neglect is shown.
We find those arguments persuasive. We recognize that Alabama cases have consistently held that the language in A.R. Civ.P. 25(a)(1) is mandatory. However, in light of the purpose of the rules and in light of their spiritwhich is not to foreclose or bar meritorious claimswe hold that the six-month provision of Rule 25(a)(1) is subject to the general language of Rule 6(b) allowing the extension of a specified time period upon a determination of excusable neglect. Accordingly, to the extent that certain of our prior cases hold that the "six months" language in Rule 25(a)(1) is mandatory, we overrule those cases.
This holding requires the trial court to exercise discretion in determining, pursuant to Rule 6(b), whether there was excusable neglect warranting an extension of the time period in Rule 25(a)(1). The determination of excusable neglect will rest on the facts of each case. For example, in Wagner v. Frazier, 712 S.W.2d 109 (Tenn.App. 1986), the plaintiff died while awaiting a decision from the trial court on a question of damages. One of the defendants filed a suggestion of death, but no other action was taken within the 90-day substitution period. The defendants moved for dismissal under Tennessee Rule of Civil Procedure 25.01, a rule similar to Alabama's except for the time period. The deceased plaintiff's administratrix filed a motion seeking substitution 8 days after the 90-day period had expired; she asserted that letters testamentary had been issued, and she sought an extension of time beyond the 90-day period set in Rule 25.01. The defendants argued that the rule was mandatory and that there was no showing or reason for the extension.
The trial court in Wagner, however, allowed the late substitution, finding "(1) [that] the time lapse was not an unreasonable one, and (2) [that] the case had been heard in its entirety, and (3) [holding] [that] as a matter within the court's discretion only `dire' circumstances would compel dismissal." 712 S.W.2d at 113. The appellate court stated:
Id. See also Garcia v. Title Ins. Co. of Minn., 712 P.2d 1114 (Colo.App.1985) (waiting for estate to be opened is not to be considered excusable neglect where the issue of excusable neglect was raised only by a passing reference in the plaintiff's brief opposing the defendant's motion to dismiss); Doherty v. Straughn, 407 A.2d 207 (Del.1979) (ignorance of the rule does not constitute excusable neglect); Markan v. Sawchyn, 36 Ohio App.3d 136, 521 N.E.2d 824 (1987) (excusable neglect existed where administrator of estate, appointed 99 days after suggestion of death, filed a motion for substitution 2 days after appointment); Miller v. Ladd, 140 Vt. 293, 437 A.2d 1105 (1981) (excusable neglect requires some reasonable basis for noncompliance within the stated period).
*1255 Based on the foregoing, the judgment of dismissal is due to be reversed and the case is remanded for further a determination as to whether there was excusable neglect.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] The record does not reveal whether letters of administration were issued. However, in oral arguments before this Court, counsel for Harris stated that the granting of the letters of administration was published in the Alabama Messenger.
[2] The motion for substitution was made 14 days after the expiration of the six-month period. The six-month period expired on February 10, 1990, a Saturday; therefore, the motion had to be filed by Monday, February 12, 1990. A.R. Civ.P. 6(a).
[3] Ga.Code Ann. § 9-11-25(a)(1) (1982) (which replaced former Code section 81A-125(a)(1), which was considered by the court in Jernigan) provides:
"If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representative of the deceased party and, together with the notice of the hearing, shall be served on the parties as provided in Code Section 9-11-5 and upon persons not parties in the manner provided in Code Section 9-11-4 for the service of a summons. Unless the motion for substitution is made not later than 180 days after the death is suggested upon the record by service of a statement of the fact of the death, the action shall be dismissed as to the deceased party." | December 14, 1990 |
663a4423-da3e-4e00-8892-37aaa1eebbd2 | Elledge v. Alabama State Bar | 572 So. 2d 424 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 424 (1990)
Cecil Wilbur ELLEDGE, Jr.
v.
ALABAMA STATE BAR.
89-1107.
Supreme Court of Alabama.
November 16, 1990.
*425 David E. Hampe, Jr., Birmingham, for appellant.
Robert W. Norris, Gen. Counsel, Alabama State Bar, for appellee.
HOUSTON, Justice.
Cecil Wilbur Elledge, Jr., appeals from a decision of the Disciplinary Board of the Alabama State Bar ("the Board") denying him reinstatement to the practice of law. We affirm.
On April 9, 1984, Elledge was disbarred. Elledge's first petition for reinstatement to the practice of law, filed in 1988, was denied. His second petition for reinstatement, filed in 1989, was denied after a hearing before the Board. At the hearing, besides Elledge's own testimony, he presented the testimony of his daughter and certain family friends as character witnesses, and he presented 14 letters of recommendations (from personal friends, other lawyers, his pastor, the clerk of the Tenth Judicial Circuit, and 2 judges). The Board also had before it two letters from the Birmingham Bar Association opposing Elledge's reinstatement, a copy of a 1982 order in a separate matter suspending Elledge from the practice of law for a period of three months and one day,[1] and a copy of United States v. Elledge, 723 F.2d 864 (11th Cir.1984), an opinion in Elledge's appeal from a conviction of conspiracy to import marijuana and a conviction of conspiracy to possess with intent to distribute marijuana. Elledge appeals from the Board's decision denying his second petition for reinstatement to the practice of law.
We recognize that "`[t]he right to practice law is a valuable property right, which can be denied only by due process of law.'" Ex parte Grubbs, 542 So. 2d 927, 930 (Ala. 1989), quoting from Reese v. Board of Commissioners of the Alabama State Bar, 379 So. 2d 564, 569 (Ala. 1980). We are concerned with that property right and with procedural due process in appeals from original disbarment cases, Bonner v. Disciplinary Board of the Alabama State Bar, 401 So. 2d 734 (Ala.1981). In the original proceeding the burden of proof is on the Bar's counsel to prove facts sufficient to justify a decision by the Board to disbar; however, once an attorney has been properly disbarred, he has been divested of that property right by due process of law.
Rule 19(c), Rules of Disciplinary Enforcement of the Alabama State Bar ("the Rules"), provides as follows:
*426 Our analysis of Rule 19(c) convinces us that the Bar's counsel has no obligation to offer any evidence in reinstatement proceedings. See, Bonner v. Disciplinary Board of the Alabama State Bar, supra. Rather, the burden of proof in reinstatement cases is on the disbarred attorney to prove by clear and convincing evidence that he is entitled to reinstatement. The Board, in affording the disbarred attorney an opportunity at a hearing to prove by clear and convincing evidence that he should be reinstated, has thereby afforded all the process that was due. See, Bonner v. Disciplinary Board of the Alabama State Bar, supra.
Although courts are slow to disbar, they are slower to reinstate. An application for reinstatement of an attorney, after a judgment of disbarment, must be treated as an application for admission to practice, not as an application to vacate the order of disbarment. Bonner v. Disciplinary Board of the Alabama State Bar, supra. "This burden is usually heavier because [the petitioner] must dispel the cloud of distrust engendered by his disbarment." Id. at 739.
Some take the position that there are certain heinous offenses against the judicial system that should forever bar an attorney from reinstatement. However, we subscribe to the following principle set forth in In re Stevens, 59 Cal. App. 251, 255, 210 P. 442 (1922), as quoted in Bonner v. Disciplinary Board of the Alabama State Bar (a unanimous decision written by Justice Adams and concurred in by Chief Justice Torbert and Justices Maddox, Faulkner, Jones, Almon, Shores, Embry, and Beatty), supra, at 738:
(Emphasis added in Bonner.)
Applying this established principle of law, we address the issue whether Elledge carried his burden of proving by clear and convincing evidence that he has the moral qualifications to practice law in Alabama and that his resumption of the practice of law will not be detrimental to the integrity and standing of the Bar or to the administration of justice or subversive of the public interest.
Elledge stipulated that he had been "convicted of conspiracy to import marijuana and conspiracy for the sale and distribution of same." The Board also had before it the decision of the United States Court of Appeals affirming Elledge's convictions, a record of Elledge's five violations of the Rules, and this Court's order suspending Elledge from the practice of law. In addition, the Board had the opportunity to question Elledge and to observe his demeanor on direct examination and on cross-examination. Further, the Board had before it the recommendations from the Birmingham Bar Association that Elledge's petition for reinstatement be denied. After deliberation, the Board found that Elledge had not met his burden of proving by clear and convincing evidence that he had the "moral qualifications to practice law in [Alabama] and that his resumption of the practice of law within [Alabama] will not be detrimental to the integrity and standing of the Bar or the administration of justice, or subversive of the public interest." See Rule 19(c).
Ethical Considerations 1-1 and 1-2 of the Code of Professional Responsibility of the Alabama State Bar state that every individual in our society is entitled to access to the independent professional services of a lawyer of integrity and that the public should be protected from those who are not qualified to be lawyers by reason of a deficiency in moral standards but who nevertheless seek to practice. It is the Board's responsibility to take such action as shall be appropriate to effectuate the purposes of the Ethical Considerations of *427 the Canonsto supervise the conduct of lawyers so as to ensure that each lawyer is fit to be entrusted with professional matters and to aid in the administration of justice.
Although the Board did not state specific reasons for denying reinstatement to Elledge, in our review of the record we find reasonable bases for the Board's denial. Under the circumstances, we cannot say that the Board erred in deciding that Elledge had failed to prove by clear and convincing evidence that he was of good moral character and that he was worthy of being reinstated to practice law in the State of Alabama. Therefore, we affirm the Board's decision denying Elledge reinstatement to the practice of law.
AFFIRMED.
HORNSBY, C.J., and ADAMS and STEAGALL, JJ., concur.
MADDOX, JONES, ALMON, and SHORES, JJ., concur in the result.
JONES, Justice (concurring in the result).
Certain portions of the language in the lead opinion, read liberally, would make it virtually impossible for a disbarred lawyer ever to become eligible for reinstatement to the practice of law in Alabama. That is an extreme proposition.
Neither the Bar nor this Court should reject arbitrarily the plea of the truly penitent; nor should we begin with the proposition that some malfeasors are beyond redemption. "Vengeance is mine; I will repay, saith the Lord." Rom. 12:19. Although it is sometimes cast upon mortals to do the work of God on Earth, they should not arrogate unto themselves the divine privilege of vengeance. A legal system that imposes and carries out harsh judgments but lacks the capacity of forgiveness may find itself the object of the Lord's vengeance.
Disbarment is a harsh punishment; yet it is proper for certain offenses. While the offenses must be dealt with sternly, the system must reserve the right to deal mercifully with the offender. I would recognize more the role of mercy and forgiveness than does the law as cited in the lead opinion; therefore, I cannot join that opinion. Nevertheless, considering the facts of this case, I concur in the judgment denying reinstatement.
[1] Elledge's 1982 suspension resulted from the Board's finding that Elledge was guilty of four charges involving solicitation of clients at the city jail and one charge of failing to disclose a material fact on his application for admission to the Bar.
[2] On January 1, 1991, the Alabama Rules of Disciplinary Procedure (Interim) will go into effect. Rule 19(a) provides: "Clear and convincing evidence shall be the standard of proof in all disciplinary proceedings, including petitions for reinstatement and transfer to disability inactive status." | November 16, 1990 |
ebe839e4-8ed1-4e56-9bc8-8d9fef6755b1 | Century 21 Academy Realty, Inc. v. Breland | 571 So. 2d 296 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 296 (1990)
CENTURY 21 ACADEMY REALTY, INC.
v.
Louis BRELAND, et al.
89-1258.
Supreme Court of Alabama.
November 16, 1990.
*297 E. Ray McKee, Jr., Huntsville, for appellant.
Paul L. Millirons of Stephens, Millirons, Harrison & Williams, Huntsville, for appellees.
HOUSTON, Justice.
The plaintiff, Century 21 Academy Realty, Inc. ("Century 21"), appeals from a summary judgment in favor of defendant Louis Breland,[1] in this action to recover damages for alleged intentional interference with contractual or business relations. We reverse and remand.
Initially, we note that the summary judgment for Breland in this case was proper only if there was no genuine issue of material fact and Breland was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Breland to make a prima facie showing that no genuine issue of material fact existed and that he was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Century 21 to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against it. DuPont v. Yellow Cab Co. of Birmingham, Inc., 565 So. 2d 190 (Ala.1990). In determining whether there was a genuine issue of material fact, this Court must view the evidence in the light most favorable to Century 21 and must resolve all reasonable doubts against Breland. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
The elements of a cause of action for intentional interference with contractual or business relations are as follows: (1) the existence of a contract or business relation; (2) the defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; and (4) damage to the plaintiff as a result of the defendant's interference. Justification for the *298 interference is an affirmative defense that has to be pleaded and proved by the defendant. Caine v. American Life Assurance Corp., 554 So. 2d 962 (Ala.1989); Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala.1986). We note that in the past we have listed an absence of justification for the defendant's interference as one of the elements of the plaintiff's cause of action; however, we recognize today that it is illogical to continue to list an absence of justification as one of the elements of the plaintiff's cause of action and then to place the burden on the defendant to disprove it.
A complete recitation of the facts in this case would be of little benefit to the bench and bar. Suffice it to say that the following material facts are undisputed: Century 21 had a "Uniform Listing Contract" with Jimmy O. Roberts to sell property owned by Roberts. With knowledge of that contract, Breland, a man experienced in the real estate business, entered into a written agreement with Roberts to purchase the property. That agreement stated that Breland would purchase the property only if Roberts obtained from Century 21 a release of his contractual obligations. Roberts sold the property to Breland without obtaining the release. Century 21 did not receive the commission to which it was entitled under its contract with Roberts. Thus, the record shows that a contract existed between Century 21 and Roberts; that Breland was aware of that contract; that Breland intentionally interfered with the contract; and that Century 21 lost its sales commission as a result of Breland's interference.[2]
Breland contends that because his agreement required Roberts to obtain a release from Century 21, his interference with the contract between Century 21 and Roberts was not "improper"; he argues, instead, that his actions were "justified" under the circumstances. However, Breland failed to plead justification as an affirmative defense in his answer prior to moving for a summary judgment, and he did not move to amend his answer prior to the entry of the judgment. Century 21 called this omission to the trial court's attention before the court ruled on Breland's motion; consequently, Breland could not rely on the affirmative defense of justification and introduce evidence in support thereof. See Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793 (Ala. 1984).[3]
Century 21 moved for a partial summary judgment on the question of Breland's liability and requested that a jury be allowed to determine the amount of damages. Pursuant to Rule 4(a)(1), A.R. App.P.,[4] Century 21 argues that the trial court should have granted its motion, because, it says, the only issue concerns the amount of damages to which it is entitled. The record shows, however, that Century 21 filed its motion for a summary judgment on August 16, 1989, and that the trial court denied the motion and entered a judgment for Breland on August 18, 1989. Rule 56(c), A.R.Civ.P., allows a party at least 10 days to prepare a rebuttal to a motion for a summary judgment before a judgment can be entered. Billingsley v. Gordon, 340 So. 2d 743 (Ala.1976).
For the foregoing reasons, we reverse the judgment for Breland and remand the *299 case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Breland Home Development Corporation and Breland Realty, Inc., were also named as defendants and are parties to this appeal; however, for the sake of clarity, we will refer only to Louis Breland.
[2] We note that Century 21 sought to recover both compensatory and punitive damages from Breland.
[3] We note that even if Breland had properly raised justification as a defense, he would not have been entitled to a judgment as a matter of law. Breland sought to admit evidence tending to show that he contracted with Roberts in good faith; that Roberts misrepresented to him that a release had been obtained from Century 21; and that he relied on that misrepresentation in going forward with the purchase. On the other hand, Century 21 presented evidence tending to show that Breland conspired with Roberts to improperly effectuate a sale of the property free of Roberts's contractual obligation to pay it a real estate commission. Our review of the record indicates that there would have been a dispute in the evidence as to whether Breland's actions were "justified."
[4] Rule 4(a)(1) provides, in pertinent part, that "[o]n an appeal from a judgment or order a party shall be entitled to a review of any judgment, order, or ruling of the trial court." | November 16, 1990 |
66cb72e8-78af-41fd-81f6-d82a9ec57773 | LAKE FOREST PROPERTY OWNERS'ASS'N v. Smith | 571 So. 2d 1047 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1047 (1990)
LAKE FOREST PROPERTY OWNERS' ASSOCIATION, INC.
v.
James C. SMITH, et al.
89-1285.
Supreme Court of Alabama.
October 26, 1990.
Robert S. Edington, Mobile, for appellant.
Jeffrey W. Crabtree, Daphne, for appellees.
PER CURIAM.
Lake Forest Property Owners' Association, Inc. ("the Association"), appeals from a declaratory judgment in favor of James C. Smith, Diane Millar, James Childs, and Susan D. Bedford, all members of the Association, *1048 holding that the Association's board of directors was without authority to cast certain "residual" votes at its annual meeting.
The stipulated facts pertinent to this appeal are as follows: From 1971 until 1979, Lake Forest, Inc., developed and operated a "planned unit development" in Baldwin County, Alabama, that consisted of approximately 4,200 lots as well as a sewer system, water system, roads, and recreational facilities, including a country club, a golf course, a yacht club, and other amenities. On July 1, 1971, Lake Forest, Inc., granted the Association an option to purchase all of the common facilities in the development. Those common facilities consisted of the country club, the yacht club, the marina, the golf course, the lake, any facilities or area for the common use of Lake Forest members, and the guard and security service. The Association was incorporated on July 29, 1971, at which time it adopted its by-laws.
On October 19, 1978, at a special meeting of the Association, the membership voted to exercise the option. At that time, the Association also elected its board of directors. On February 2, 1979, Lake Forest, Inc., sold the common facilities to the Association. In November 1988, Lake Forest, Inc., merged with its parent corporation, Purcell Company, Inc. ("Purcell").
On October 16, 1989, the Association held its annual meeting, for the primary purpose of electing four members to the board of directors. The by-laws required that at least two people be nominated for each vacancy; consequently, the nominating committee recommended eight persons for the four available positions in the proxy it sent with the notice of the meeting. Prior to the meeting, several members, referred to as the "reform group," circulated a proxy proposing its own slate of directors.
The applicable section of the Association's by-laws dealing with voting states, in part:
(Emphasis added.)
Two weeks prior to the annual meeting, the Association's board of directors adopted a resolution that instructed the president to cast a total of 1,227 votes for its nominees. Of those votes, 1,184, the "residual" votes, represented each ¼ acre of real property referred to in section 3.7 of the by-laws (the common areas), while 43 of the votes represented lots the Association owned. Pursuant to the resolution, the president also cast the same number of votes, 1,227, in favor of two amendments to the by-laws and in favor of a dues increase from $27.50 to $35.00 a month.[1] The results of the board of directors election were as follows:
The trial court entered an order based on the stipulated facts and made the following conclusions of Law:
The Association argues that, by virtue of its purchase of the common amenities and its assumption of the obligations of Lake Forest, Inc., it is the "successor" to Lake Forest, Inc., as that term is used in section 3.7 of the by-laws. The reform group nominees argue that Purcell, rather than the Association, is the successor to Lake Forest, Inc.
We recognize initially that because the facts below were undisputed, the ore tenus rule is inapplicable in this case. Instead, "the appellate court shall sit in judgment on the evidence de novo, indulging no presumption in favor of the trial court's application of the law to the facts." Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 542 (Ala.1988) (citations omitted).
It is generally acknowledged that there is no precise legal definition of "successor" that would be applicable in all contexts. Safer v. Perper, 569 F.2d 87, 95 (D.C.Cir.1977). Rather, the determination of whether an entity is a "successor" is made on a case-by-case basis according to the facts. Howard Johnson Co. v. Detroit Local Joint Executive Board, 417 U.S. 249, 256, 94 S. Ct. 2236, 2240, 41 L. Ed. 2d 46 (1974).
Although there are no Alabama cases dealing with the definition of "successor" *1050 in the precise factual context presented here, First National Bank of Birmingham v. Adams, 281 Ala. 404, 410, 203 So. 2d 124, 129 (1967), supports the reform group's argument that Purcell, by virtue of the merger with Lake Forest, Inc., is, in fact, the successor to Lake Forest, Inc.:
In this case, the purchase agreement between Lake Forest, Inc., and the Association refers several times to Lake Forest, Inc., and "its successors," without mentioning the Association as its "successor." Indeed, that agreement makes it clear that the Association was the purchaser of the common facilities rather than the successor to Lake Forest, Inc. "In the non-labor contractual cases, `successor' has often been defined as `one who takes the place that another has left, and sustains the like part or character.'" Safer, 569 F.2d at 95, quoting Wawak Co. v. Kaiser, 90 F.2d 694, 697 (7th Cir.1937) (citations omitted). After the merger, Purcell took the place that Lake Forest, Inc., left, and Purcell now stands in its place as the owner of the 800 unsold lots that Lake Forest, Inc., retained when it sold the common facilities to the Association. Therefore, the trial judge's holding that the Association is not the successor to Lake Forest, Inc., as well as his determination that the Association did not have the authority to cast the 1,184 residual votes, is affirmed.
The reform group also argues that the trial judge erred in ruling that the president of the Association's board of directors properly cast 43 votes for the dues increase and for the board's nominees. Section 2.4 of the Association's by-laws, entitled "Dues, Charges and Assessments," specifically states that "[t]he Board of Directors [has] no authority to increase dues." We agree with the reform group that the board of directors may not do indirectly (by casting 43 votes for the number of lots the Association owns) what it is prohibited from doing directly.
With regard to the 43 votes cast for the board's nominees, the reform group argues that the Association never qualified itself as a "full voting member" pursuant to section 2.1 of the by-laws and, thus, was not entitled to vote based on the number of lots it owned. Section 2.1 of the by-laws reads, in part, as follows:
There is no evidence in the record that the Association ever designated any individual to represent the 43 lots it owns. Moreover, there is no evidence that any dues have been paid on those 43 lots. The beginning of section 3.7 reads: "Each Full Voting Member shall be entitled to one vote for each lot owned for which dues, charges, initiation fee and assessment are current...." Thus, the Association did not have the authority to cast 43 votes for either the nominees or the dues increase, and the trial judge's holding to the contrary is reversed.
The judgment of the trial court is affirmed in part and reversed in part and the *1051 cause is remanded for proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
MADDOX, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The two amendments were defeated and are not a subject of this appeal. | October 26, 1990 |
8b7f976e-9828-44ed-9617-4678dd80219f | Intercontinental Life Ins. v. Lindblom | 571 So. 2d 1092 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1092 (1990)
INTERCONTINENTAL LIFE INSURANCE COMPANY
v.
Lou Rodenberry LINDBLOM.
89-14.
Supreme Court of Alabama.
November 16, 1990.
*1093 S. Craig Panter of Satterfield and Allred (S. Craig Panter of Kirkland, Barfield & Panter, at time of filing reply brief), Jackson, Miss., and James C. Barton, Michael L. Hall, Hollinger F. Barnard and John D. Saxon of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellant.
David H. Marsh of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellee.
ADAMS, Justice.
Our opinion of September 28, 1990, is withdrawn and the following is substituted therefor.
This is an appeal from a jury verdict awarding $3,012,400 to the plaintiff, Ms. Lou R. Lindblom, against the defendant, Intercontinental Life Insurance Company (hereinafter "Intercontinental"), for bad faith failure to pay insurance benefits, *1094 breach of contract, misrepresentation, and fraud. We affirm.
The appellant has raised many issues on appeal dealing with the denial of its post-trial motions and with questions regarding the constitutionality of the award of punitive damages. The record reveals the following facts relevant to this appeal:
In November 1980 Ms. Tommie Rodenberry applied for a life insurance policy with Intercontinental. Larry Culver of the Culver Agency submitted the application to Intercontinental. On December 1, 1980, Intercontinental issued a term life insurance policy (number 178427) to Tommie Rodenberry. The policy designated Ms. Lou R. Lindblom as the beneficiary of the policy, with $10,000 in benefits. The premium payments were originally due and payable quarterly beginning in December 1980. The policy provided in its relevant parts as follows:
Intercontinental introduced evidence at trial that in addition to the written 31-day grace period, it voluntarily granted an extended two-week (14-day) grace period at the end of the 31-day period, making the total grace period 45 days. This "extra" grace period was not included in the insurance contract, nor was Ms. Lindblom ever informed of its existence. Intercontinental introduced further evidence that if the end of the grace period fell on a weekend or holiday, the period was extended to the next business day.
From December 1980 through November 1983, Ms. Lindblom made the quarterly payments on the policy. Sometime in December 1983 or January 1984, she decided that she desired to convert the payment plan from the quarterly plan to a monthly plan. On January 1, 1984, she wrote to Intercontinental, informing it of her desire to pay the premiums monthly from then on and enclosing the monthly premium payment specifically designated for December 1983 ($32.06). This letter also stated that she would remit the payment for January 1984 as soon as she received notice from Intercontinental. At that time, the December 1983 payment was 31 days past due. It appeared from the evidence at trial that Intercontinental made no reply to Ms. Lindblom's letter.
Ms. Lindblom's next premium payment was made on February 2, 1984. Intercontinental decided to back-apply this payment to cover the January 1984, payment which was then unpaid and 32 days past due, outside the written 31-day grace period but within the unwritten extended grace period. Ms. Lindblom continued to remit payments each month from February 1984 through October 1985 to Intercontinental. Intercontinental accepted each of these payments.
Evidence offered at trial showed that while Ms. Lindblom made each payment in the early part of each month from February 1984 through October 1985, because of Intercontinental's decision to continuously back-apply these payments to cover the missed January 1984 payment, virtually all of these payments were received outside the 31-day grace period. During this time Intercontinental contacted Ms. Lindblom on at least two occasions to inform her of premium increases. At no time did Intercontinental inform her of the fact that she had missed the January 1984 payment or of the fact that her payments were continuously received outside the 31-day grace period.
*1095 Intercontinental continued its practice of back applying Ms. Lindblom's payments through August 1985, when problems began to develop. When Intercontinental received a check dated August 5, 1985, it applied it toward the July 1985 premium, which had not been paid. The next check Intercontinental received was dated September 15, 1985. Again, Intercontinental treated this check as the payment of the August 1985 premium. When this check was entered into the computer system, the computer designated the policy "terminated" and showed "no premium applied." Upon subsequent review of all such computer entries by Intercontinental, employees discovered that the check had not been applied to this policy because the policy had lapsed. Ms. Lindblom, who was at that time unaware of the problem, sent in her payment for October. On October 11, 1985, Intercontinental wrote Ms. Lindblom and informed her of the lapse. Ms. Lindblom, who believed she was current on the policy and could not understand how it had lapsed, contacted Mr. Culver at the Culver Agency about the problem. Ms. Lindblom presented Mr. Culver with copies of the cancelled checks for the August and September 1985 premium payments. Mr. Culver told Ms. Lindblom that he would take care of it. Mr. Culver instructed Ms. Lindblom to send him a copy of the cancelled October 1985 premium check when she received it from her bank. Later, when Mr. Culver received this check and spoke with Ms. Lindblom, he informed her that the policy was still in force.
On October 23, 1985, Tommie Rodenberry died. On November 8, 1985, Ms. Lindblom filed a claim with Intercontinental for the death benefits under the policy. After Intercontinental personnel examined the claim and the policy, they informed Ms. Lindblom, through the Culver Agency, that the benefits could not be paid because the policy had lapsed as of August 1, 1985, due to nonpayment of premiums. At this point Intercontinental did not refund any premiums paid after the alleged lapse. The Culver Agency contacted Intercontinental on several occasions and sent Intercontinental copies of the cancelled checks for Ms. Lindblom's August, September, and October payments. The Culver Agency apparently believed that the policy should not have lapsed and sought to assist Ms. Lindblom. On each occasion Intercontinental confirmed that the policy had lapsed effective August 1, 1985, and refused to pay the benefits. Intercontinental eventually refunded the amount of two payments received after the alleged lapse.
On November 19, 1986, Ms. Lindblom sued Intercontinental, the Culver Agency, and Mr. Culver, alleging wrongful refusal to pay the benefits under the policy and seeking $10,000 compensatory damages and $1,000,000 punitive damages. Upon Intercontinental's petition, the case was removed to a federal district court. The federal district court, however, found removal inappropriate and remanded the case to the Circuit Court of Jefferson County.
After remand, Ms. Lindblom amended her complaint to allege that the Culver defendants had been guilty of misrepresentation and concealment while acting as agents of Intercontinental. Ms. Lindblom's complaint, in its final form, alleged: breach of contract, bad faith failure to pay on the insurance contract, misrepresentation, fraudulent suppression, outrage, and conversion. Intercontinental moved for summary judgment on all claims. The trial court granted the motion as to the claims of outrage and conversion, but denied it as to the other claims. At the end of the plaintiff's case-in-chief and again at the end of the presentation of all the evidence, Intercontinental moved for a directed verdict, which was denied. After closing arguments, Intercontinental requested a special verdict and requested that the jury be given verdict forms to differentiate compensatory damages from punitive damages. The trial judge denied these requests and submitted the case to the jury.
The jury returned a verdict exonerating the Culver defendants from any liability but assessing damages against Intercontinental in the amount of $3,012,400. Intercontinental timely filed alternative motions for a judgment notwithstanding the verdict, a remittitur, or a new trial. These *1096 post-trial motions were denied by the trial court. Because one of the issues raised in the post-trial motions was an alleged excessiveness of the verdict, the trial judge, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), conducted a hearing on that issue and found no excessiveness.
As noted, Intercontinental has raised several issues for our review on this appeal. At the outset however, we must address the nature of the insurance policy issued by Intercontinental and the actions of the parties involved. An examination of these factors will effectively dispose of the issues raised by Intercontinental, requiring only minimal review. Our consideration of these areas requires a two-step analysis: (1) an examination of the insurance contract itself and (2) an examination of the conduct of the parties.
With respect to the insurance contract, the primary area of concern is with the grace period. As set out above, the insurance contract contains a 31-day grace period for the receipt of insurance premiums. Intercontinental maintains that it voluntarily grants an additional grace period of two weeks (14 days) at the end of the 31-day grace period, making the total grace period 45 days. This additional extended grace period is not mentioned anywhere in the policy, nor was it ever revealed to Ms. Lindblom. In our review of this case and of the insurance contract, we cannot give any validity to this extended, unwritten grace period, as it is not part of the written contract and never became part of the contract. The "extended grace period" argument, under the facts of this case, appears to be merely a convenient way for Intercontinental to justify its acceptance of premium payments outside of the 31-day grace period, insure continued payments, and keep the policy in force, all without the knowledge of the insured or the beneficiary.
Because Intercontinental set up a practice whereby it continuously back-applied some 20 or more payments it received outside the 31-day grace period and made no attempt to treat the policy as lapsed, it could not arbitrarily cease this practice and treat the policy as lapsed in August 1985 by claiming that payment was not made within the 31-day grace period. This Court will not allow Intercontinental to establish such a practice and then to suddenly change it. Allowing such a practice gives Intercontinental virtually absolute power over the contract and leaves persons such as Ms. Lindblom helpless.
Moreover, a plausible alternative reading of the evidence could indicate that the policy actually lapsed in January 1984 when Ms. Lindblom informed Intercontinental that she would remit the January payment as soon as she received notice. Because Intercontinental never notified her as to the change in payment plans, her next check was dated February 2, 1984, and Ms. Lindblom made each subsequent payment on time, including the August and September 1985 payments. We conclude that Intercontinental waived its right to lapse the policy by not doing so when the January payment was overdue and by accepting payments past the 31-day grace period.
Because it impliedly agreed to accept payments made outside the grace period for approximately two years, Intercontinental could not arbitrarily stop this practice in August 1985. Furthermore, Intercontinental ignored the missed January 1984 payment and back-applied all subsequent payments. With respect to the specific issues Intercontinental now raises on appeal, we have consolidated several issues for clarity and briefly address them below, in light of the foregoing.
Intercontinental raises five issues in this appeal: (1) Whether a judgment notwithstanding the verdict should have been granted for Intercontinental on any of the plaintiff's claims; (2) whether a new trial should have been granted for Intercontinental on the ground that the jury returned a general verdict and at least one of the claims against Intercontinental was insufficient; (3) whether a remittitur or a new trial should have been granted for Intercontinental on the ground that the jury's verdict was necessarily the result of bias, passion, or other improper motive and was *1097 otherwise excessive; (4) whether the verdict is unconstitutional under the due process clause of the United States Constitution; and (5) whether a remittitur or a new trial should be ordered by this Court on appeal.
Intercontinental first argues that a judgment notwithstanding the verdict should have been granted in its favor with respect to the plaintiff's claims of breach of contract, bad faith, and misrepresentation. We disagree. Our discussion of Intercontinental's right to a J.N.O.V. will bring into focus our view of Intercontinental's other claims. We begin by stating the standard of review applicable to a denial of a judgment notwithstanding the verdict, as set out by this Court in Elrod v. Ford, 489 So. 2d 534 (Ala.1986):
489 So. 2d at 537. With regard to each of these claims, the plaintiff has clearly met the burden set out in Elrod. Contrary to Intercontinental's argument, the plaintiff presented sufficient evidence to warrant submission of her claims to the jury.
Intercontinental first attacks the plaintiff's breach of contract claim. Intercontinental contends that its actions of accepting payments did not constitute a waiver, because, it says, the company policy was to grant an additional 14-day grace period. We have dealt with this grace period above and only need point out here that the extended grace period has no validity. As for Intercontinental's actions in accepting payments outside the 31-day period, the plaintiff's evidence raised reasonable inferences supporting the argument that Intercontinental did waive any right to "lapse" the policy due to late payments and thereby breached the contract by lapsing the policy and refusing to pay benefits. Furthermore, the evidence could have supported a finding that the policy actually lapsed in January 1984, and that all subsequent payments were made on time, and that because Intercontinental did nothing in January it waived any right to lapse the policy in August. This claim was, thus, properly submitted to the jury.
The second claim Intercontinental attacks is the bad faith claim. Intercontinental argues that even if it was not entitled to a judgment notwithstanding the verdict on the breach of contract claim, it was entitled to one the bad faith claim, because, it argues, the plaintiff's proof in support of her contract claim does not rise to the level entitling the plaintiff to a directed verdict. National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357 (Ala.1982). In Dutton, as Intercontinental correctly points out, Justice Shores stated:
Dutton, 419 So. 2d at 1362 (citing National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179 (Ala.1982)). While both parties acknowledge that the plaintiff did not move for a directed verdict, in reviewing the evidence we have come to the conclusion that the plaintiff would have been entitled to a directed verdict; thus the Dutton requirement was satisfied. The evidence in support of that claim is overwhelming. Because Intercontinental had no legal justification for refusing to pay the claim, no matter how the evidence is construed, the only reasonable conclusion *1098 is that Intercontinental breached the contract when it refused to pay the benefits.
Assuming, arguendo, that the plaintiff would not succeed on a motion for directed verdict, Intercontinental's contention still fails. This Court has addressed this issue on numerous occasions. We have consistently noted that there will be many cases that do not meet the qualification of "normal" or "ordinary" spoken of in Dutton, and that in such cases the "directed verdict on the contract claim" test should not apply. See National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357 (Ala.1982) (Jones J., concurring). See also Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990) (wherein Justice Houston undertook an exhaustive analysis of the development of the "directed verdict on the contract claim" test). The case now before this Court is just such a case.
The two elements of a bad faith claim were set out in Chavers v. National Security Fire & Cas. Co., 405 So. 2d 1 (Ala.1981):
Chavers, 405 So. 2d at 7 (quoting Vincent v. Blue Cross-Blue Shield of Alabama, 373 So. 2d 1054 (Ala.1979)). As mentioned above, Dutton established the "great" burden that is on the plaintiff in proving a bad faith claim. Dutton, however, qualified the rule regarding this burden so as to prevent the insurer from avoiding liability in certain extreme situations. After Dutton, we found it necessary on several occasions to restrict the application of this great burden.
First, in Continental Assurance Co. v. Kountz, 461 So. 2d 802, 806 (Ala.1984), we stated:
In Kountz we noted that proof of an intentional failure to determine whether there was a lawful basis for denying payment could be used to establish that the insurer had no legitimate reason to deny the payment. Kountz, 461 So. 2d at 807. This Court in Kountz held that the evidence showed that the insurer had intentionally failed to determine whether there was a lawful basis for denying the claim, and that that showing supported an inference of bad faith. Id. at 808. See also Aetna Life & Casualty Insurance Co. v. Lavoie, 470 So. 2d 1060 (Ala.1984) (extraordinary evidence of "reckless indifference" toward insured in breach of duty of good faith and fair dealing properly submitted to jury).
In Jones v. Alabama Farm Bureau Mutual Casualty Co., 507 So. 2d 396 (Ala. 1986), the only basis of denial rested on the resolution of the single factual issue of what the insured had told the insurance adjuster. In Jones we stated:
Jones, 507 So. 2d at 401. Jones held that it was error to grant a partial summary judgment because there was a disputed factual issue to be decided by the jury. Id. See also United American Insurance Co. v. Brumley, 542 So. 2d 1231 (Ala.1989) (it would frustrate the purpose of the bad faith action to allow an insurer to prevent a bad faith claim from going to the jury by misrepresenting the content of oral or written communications). The case now before us presents an analogous "extraordinary" *1099 situation. Intercontinental, over the course of nearly two years, accepted and back-applied payments outside of the grace period and made no effort to investigate Ms. Lindblom's payment history or to inform her of possible lapses. Moreover, there was conflicting testimony as to whether any "pre-lapse" notices were sent to Ms. Lindblom. At trial, Intercontinental employees testified that such notices were sent, while Ms. Lindblom denied ever receiving them. Under the facts of this case, the existence or nonexistence of these notices raises a presumption in favor of the plaintiff's argument that Intercontinental intentionally ignored late payments in order to keep the policy in force, to guarantee continued payments, and failed to determine if there was any valid reason for denying the claim. Finally, we note that the evidence tended to show that Intercontinental employees, upon reviewing the denial of the claim, merely consulted a computer or other employees and reported that the policy had lapsed due to nonpayment of premiums. This effort by Intercontinental is wholly insufficient to amount to an investigation into the basis for the denial of payments. Intercontinental has not only intentionally failed to investigate whether there was a valid reason to deny the claim, but has also failed to investigate any part of the policy at any time. Under Kountz and Aetna, this intentional failure to investigate whether there was a valid reason to deny the claim amounts to an intentional failure to determine whether there was any lawful basis for denying the claim and creates the inference of bad faith.
Furthermore, considering Jones and Brumley, we note that the action of bad faith would be frustrated by permitting Intercontinental to avoid liability merely by misrepresenting the existence or the content of pre-lapse notices. The resolution of the issue whether these notices were sent to Ms. Lindblom, is partly determinative of Intercontinental's investigation practices throughout the existence of this policy. These facts illustrate why this case is anything but ordinary or normal. The facts presented a question whether Intercontinental investigated to determine if there was a valid reason to deny payment of benefits, and that question was properly submitted to the jury for resolution. We hold, therefore, that the Dutton "directed verdict on the contract claim" test does not apply here and that the trial judge properly submitted the bad faith claim to the jury.
Intercontinental also attacks the denial of a judgment notwithstanding the verdict on the misrepresentation claim. Here again, Intercontinental argues that the plaintiff made no showing of any misrepresentation. Contrary to Intercontinental's interpretation of the facts, the record contains numerous examples of misrepresentations to Ms. Lindblom. The actions of Intercontinental in continuously accepting late payments and its taking no steps to advise Ms. Lindblom of this fact or to advise her of its so-called extended grace period, as well as the actions of the Culver Agency, all create reasonable inferences to support the plaintiff's claim of misrepresentation. Thus, we hold that the trial judge properly submitted this claim to the jury for resolution.
The next issue raised by Intercontinental is whether a new trial should have been granted in its favor on the ground that the jury returned a general verdict and at least one claim against Intercontinental was insufficient. Intercontinental argues that if it was entitled to a directed verdict on any one or more of the plaintiff's five claims submitted to the jury, then the verdict must be set aside and a new trial ordered. In short, we are of the opinion that Intercontinental was not entitled to a directed verdict on any of the five claims. The plaintiff's evidence presented differing interpretations and raised reasonable presumptions in her favor. The trial judge properly denied Intercontinental's motion for a directed verdict and submitted the claims to the jury. Furthermore, we see no error in the general form of the jury verdict.
Intercontinental next argues that a new trial or a remittitur should have been granted for Intercontinental because, it says, the jury verdict was necessarily the result of bias, passion, or other improper *1100 motive and was otherwise excessive. We disagree with both of its arguments.
After the jury returned the verdict, the trial judge entered his findings regarding questions of alleged excessiveness of the verdict, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). After carefully reviewing the evidence before the jury, the trial judge concluded that the evidence clearly established that Intercontinental's conduct warranted the punitive award.
As for a motive for the jury to give an excessive verdict, Intercontinental maintains that the conduct of the plaintiff at trial in, among other things, testifying as to the nature of Ms. Rodenberry's illness, the presence of Ms. Lindblom's retarded son, and testifying that Ms. Lindblom remained at home to care for Ms. Rodenberry caused the jury to disregard the legal requirements applicable to Ms. Lindblom's claim and to decide the case out of passion and pity for Ms. Lindblom's situation. This argument is unpersuasive. Much of the testimony that Intercontinental now cites as error was either elicited by counsel for Intercontinental or was not objected to at the time the testimony was given. Furthermore, much of what Intercontinental claims caused the jury to abandon its duty to decide the case on legal grounds does not, as we see it, rise to a level that could have affected the jury in the manner Intercontinental contends. This is an extreme case. Much of the testimony Intercontinental now attacks is relevant and was properly put before the jury in order for it to make an informed decision.
Intercontinental next attacks the jury verdict as unconstitutional. Specifically, Intercontinental argues that the law of punitive damages lacks fundamental fairness because it is vague, arbitrary, and imposes no standards or limits. However, as Intercontinental correctly points out, the Supreme Court of the United States held in Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, ___, 109 S. Ct. 2909, 2916, 106 L. Ed. 2d 219 (1989), that the excessive fines clause of the eighth amendment does not apply to punitive damages awards in cases between private parties. This Court has, in line with Browning-Ferris, consistently declined to hold that the award of punitive damages is unconstitutional. See HealthAmerica v. Menton, 551 So. 2d 235 (Ala. 1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990); Olympia Spa v. Johnson, 547 So. 2d 80 (Ala.1989); Pacific Mutual Life Insurance Co. v. Haslip, 553 So. 2d 537 (Ala.1989), cert. granted, ___ U.S. ___, 110 S. Ct. 1780, 108 L. Ed. 2d 782 (1990). Also, the trial judge carefully reviewed the evidence presented and the constitutional arguments raised and concluded that the award did not violate the Constitution. We agree with the trial court that the evidence of Intercontinental's conduct warranted the punitive award here and that that award is not unconstitutional.
Last, Intercontinental renews its argument before this Court that the award of $3,012,400.00 is excessive and urges this Court to order a remittitur pursuant to Ala.Code 1975, § 12-22-71. The trial court followed the Hammond guidelines and found no reason to disturb the jury verdict. However, this Court still has the responsibility to consider whether the award is excessive, because we must assure some degree of uniformity in the area of punitive awards.
After a thorough examination of the record in this case and a comparison of verdicts in similar cases that have come before this Court, we conclude that the award of $3,012,400 is excessive and should be reduced by $2,012,400. We therefore affirm the judgment of the trial court, conditioned upon the acceptance of a remittitur of $2,012,400 by Ms. Lindblom, within 28 days of the date of this substituted opinion, which will result in a judgment in her favor of $1,000,000.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED CONDITIONALLY; APPLICATION OVERRULED.
HORNSBY, C.J., and JONES, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
*1101 MADDOX, J., concurs specially.
KENNEDY, J., concurs in part and dissents in part.
MADDOX, Justice (concurring specially).
I agree that under this Court's present case law the punitive damages award, as remitted, must be affirmed. However, I must point out that I dissented in Pacific Mutual Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), cert. granted, ___ U.S. ___, 110 S. Ct. 1780, 108 L. Ed. 2d 782 (1990), and that the issue raised in this case is the same as that presented in Haslip. Therefore, if the Supreme Court of the United States reverses this Court's judgment in Haslip, then the judgment in this case should also be reversed. I must await, as everyone else must, the decision of the Supreme Court of the United States in Pacific Mutual Life Ins. Co. v. Haslip.
KENNEDY, Justice (concurring in part and dissenting in part).
The jury returned a verdict favoring Ms. Lindblom, and the trial court entered a judgment on that verdict. The trial court denied Intercontinental's motion for judgment notwithstanding the verdict and conducted a hearing, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), in which it determined that the verdict was not excessive. A jury's verdict is presumed correct and will not be disturbed unless plainly it is erroneous or manifestly unjust. United American Insurance Co. v. Brumley, 542 So. 2d 1231, 1233 (Ala. 1989); Pate v. Sunset Funeral Home, 465 So. 2d 347 (Ala.1984). That presumption of correctness is strengthened when a motion for new trial is denied by the trial court. Brumley, at 1233; Hill Air of Gadsden, Inc. v. Marshall, 526 So. 2d 15, 17 (Ala. 1988). A remittitur is proper only when the record establishes that the award is excessive as a matter of law or that the verdict is based upon bias, passion, corruption, or other improper motive. Hammond, at 1379.
The record does not indicate that the jury's verdict was in any way improper. To apply properly the presumption of correctness that attends the jury's verdict requires that the judgment of the trial court in regard to liability be affirmed; the majority does affirm in that regard. I concur in the portion of the opinion that affirms the judgment as to liability. However, the record does not establish that the award was either excessive or based upon bias, passion, corruption, or any other improper motive; the trial court did not err in denying a remittitur. Accordingly, I dissent from the portion of the opinion that orders a remittitur. | November 16, 1990 |
46dd84ee-20e6-4c3b-ae7f-40abfe226473 | Wakefield v. State Farm Mutual Automobile Insurance Co. | 572 So. 2d 1220 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1220 (1990)
William Blake WAKEFIELD, Individually and as Father of William Paul Wakefield, Deceased
v.
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
89-1588.
Supreme Court of Alabama.
November 30, 1990.
*1221 Tom Radney of Radney & Morris, Alexander City, for appellant.
Edgar M. Elliott, III, Deborah Alley Smith of Rives & Peterson, Birmingham, and Scears Barnes, Jr., of Barnes and Radney, Alexander City, for appellee.
HOUSTON, Justice.
The plaintiff, William Blake Wakefield, appeals from a summary judgment for the defendant, State Farm Mutual Automobile Insurance Company ("State Farm"), in this action to collect uninsured/underinsured motorist protection benefits, and medical expenses and payment for damage to property under the newly-acquired-vehicles provision of an automobile insurance policy. We affirm.
The plaintiff's son, William Paul Wakefield, was killed when the heavy duty ¾-ton utility truck that he was driving collided with another vehicle. The plaintiff had purchased the truck approximately one week before the accident for use in his logging business. At the time of the accident, the plaintiff had in effect a State Farm automobile insurance policy that listed only his 1988 Chevrolet Blazer as a covered vehicle. This policy did not list a 1979 Chevrolet pickup truck that was owned by the plaintiff at the time of his son's accident. The ¾-ton utility truck that the plaintiff's son was driving at the time of the accident did not replace a vehicle insured under the State Farm automobile insurance policy. The policy did provide coverage for "newly acquired" vehicles. The policy reads, in pertinent part, as follows:
(Emphasis added in the policy.) Relying on State Farm Mutual Automobile Insurance Co. v. Lewis, 514 So. 2d 863 (Ala.1987), in which this Court, construing policy language identical to that of the plaintiff's policy, held as a matter of law that a pickup truck was not a "private passenger car," as that term was defined in the policy, State Farm denied that it was liable under the policy for any loss resulting from the accident. State Farm took the position that the truck in which Paul Wakefield was killed was not a "private passenger car" and, therefore, that it was not a "newly acquired car," as those terms are defined in the policy. The plaintiff sued numerous defendants, including State Farm. The complaint contained the following allegations pertinent to State Farm:
The trial court granted State Farm's motion for a summary judgment and made the judgment final pursuant to Rule 54(b), A.R. Civ.P.
Summary judgment was proper in this case if there was no genuine issue of material fact and State Farm was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on State Farm to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the plaintiff to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to the plaintiff, the nonmoving party, and must resolve all reasonable doubts against State Farm. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala. Code 1975, § 12-21-12. See Stafford v. Mississippi Valley Title Insurance Co., 569 So. 2d 720 (Ala.1990).
The sole issue presented by the parties for our review is whether the truck Paul Wakefield was driving at the time of the accident fell within the policy definition of a "newly acquired car." If it did, as the plaintiff contends, then the summary judgment was improper. If it did not, then State Farm was entitled to a judgment as a matter of law.
"Car" is defined in the policy as "a land motor vehicle with four or more wheels, which is designed for use mainly on public roads." "Car" does not include "any vehicle while located for use as a dwelling or other premises" or "a truck-tractor designed to pull a trailer or semitrailer." The truck in which Paul Wakefield was killed was a "car," as that word is defined in the plaintiff's policy.[1] The policy *1223 does not state that a "car" has to be a "private passenger car" to qualify as a "newly acquired car"; therefore, State Farm Mutual Automobile Insurance Co. v. Lewis, supra, does not control this case. The policy does state that a "car" qualifies as a "newly acquired car," provided that on the date of its delivery State Farm insured all of the "cars" owned by the insured or insureds. The record shows, however, that at the time of the accident, the plaintiff owned a 1979 Chevrolet pickup truck, which he used on his farm and in his logging business, that was not insured by State Farm. Consequently, the truck in which Paul Wakefield was killed did not fall within the policy definition of a "newly acquired car," and, thus, it was not covered under the plaintiff's policy. It is well established that a correct decision on the part of the trial court will not be disturbed even if the court gives the wrong reasons. Davison v. Lowery, 526 So. 2d 2 (Ala.1988), cert. denied, 488 U.S. 854, 109 S. Ct. 140, 102 L. Ed. 2d 113 (1988).
We are mindful of the rule that exceptions to coverage are to be interpreted as narrowly as possible in order to provide maximum coverage for the insured, and that clauses setting out exceptions must be construed most strongly against the company that issued the policy. However, insurance contracts, like other contracts, are construed to give effect to the intention of the parties thereto, and when the intention is clear and unambiguous, as it is in this case, the policy must be enforced as written. State Farm Mutual Automobile Insurance Co. v. Lewis, supra.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] We note that the truck in which Paul Wakefield was killed also fell within the policy definition of "utility vehicle." We do not think that State Farm, by separately defining "utility vehicle," intended to exclude a "utility vehicle" from the definition of a "newly acquired car." | November 30, 1990 |
5ecd25c1-1ee2-42ea-bc8a-39e195fb167a | Haskew v. Green | 571 So. 2d 1029 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1029 (1990)
Daryl HASKEW, individually and d/b/a Haskew Construction Company
v.
Robert S. GREEN and Rita R. Green.
89-924.
Supreme Court of Alabama.
October 19, 1990.
*1030 John W. Parker and Michael S. McNair of Parker & McNair, Mobile, for appellant.
Myland R. Engel and Edgar P. Walsh of Engel, Walsh & Zoghby, Mobile, for appellees.
JONES, Justice.
This is an appeal from a summary judgment entered in favor of the defendants, Robert and Rita Green, husband and wife, based on the trial court's finding that the plaintiff, Daryl Haskew, suing individually and d/b/a Haskew Construction Company, was an improperly licensed contractor and thus was not entitled to enforce the construction contract he had with the Greens.
On October 19, 1987, Haskew contracted with the Greens to build a log home for a price of $60,492. Sometime before construction of the home was completed, the Greens informed Haskew that his services were no longer needed.
Haskew sued the Greens to perfect a materialman's lien, pursuant to Code 1975, § 35-11-222, and for breach of contract to recover the cost of his work, labor, and materials furnished. The Greens filed an answer alleging, among other things, that the contract is "unenforceable because the [plaintiff is] improperly licensed pursuant to Ala.Code, § 40-12-84" and further alleging that the contract is "null, void, and illegal because it is in violation of public policy." The Greens also filed a counterclaim alleging breach of the agreement to construct the home in accordance with certain plans and specifications and breach of an implied warranty to construct the home in a workmanlike manner. The trial court held that the contract in dispute was unenforceable because of Haskew's failure to comply with Code 1975, § 40-12-84 and, based solely upon this holding, entered summary judgment in favor of the Greens.[1] That summary judgment was made final pursuant to Rule 54(b), A.R.Civ.P.
The dispositive issue is whether Code 1975, § 40-12-84, is a regulatory statute designed to protect the public from incompetent contractors or is merely a statute designed to raise revenue.
Bronner v. Gatewood, 512 So. 2d 102, 105-06 (Ala.Civ.App.1986), affirmed, 512 So. 2d 107 (Ala.1987).
In this case, the statute in question, Ala. Code 1975, § 40-12-84, provides as follows:
In Sunflower Lumber Co. v. Turner Supply Co., 158 Ala. 191, 194-95, 48 So. 510-11 (1909), then-Justice Anderson, quoting approvingly from Clark on Contracts, 385, stated the law applicable to this case:
In a subsequent case, Bowdoin v. Alabama Chemical Co., 201 Ala. 582, 583, 79 So. 4, 5 (1918), this Court reiterated what it had said in Sunflower Lumber Co.:
We pause to note that the present case is readily distinguishable from our recent holdings in Sanwa Business Credit Corp. v. G.B. "Boots" Smith Corp., 548 So. 2d 1336 (Ala.1989), and Green Tree Acceptance, Inc. v. Blalock, 525 So. 2d 1366 (Ala.1988), wherein this Court held that a foreign corporation cannot sue to enforce a *1032 contract that is to be performed in Alabama if that corporation has failed to qualify to do business in Alabama on or before the date the contract is made. The decisions in Sanwa Credit Corp. and Green Tree Acceptance, Inc. were based on the provisions of Ala. Const., Art. XII, § 232, and § 10-2A-247(a), Code 1975. Those pertinent provisions are as follows:
Ala. Const., Art. XII, § 232.
§ 10-2A-247(a), Code 1975.
A review of the above-quoted portions of § 10-2A-247 and § 232 clearly shows that they were aimed at protecting the public interests in several respects. First, the provisions ensure that foreign corporations will pay their share of taxes and fees. Code 1975, § 10-2A-247(b). Second, they facilitate service of process of foreign corporations, thereby making foreign corporations accountable in Alabama courts. Third, they require the filing of pertinent information concerning corporate affairs and thereby equalize, in terms of regulation, the positions of foreign and domestic corporations. SanJay, Inc. v. Duncan Constr. Co., 445 So. 2d 876 (Ala.1983) (Torbert, C.J., dissenting).
A cursory examination of § 40-12-84, located in Title 40 (entitled "Revenue and Taxation"), leads one to the inescapable conclusion that that section does nothing more than provide a convenient method of collecting revenue.[2] We are therefore of the opinion that the summary judgment was premature. For the reasons stated, the judgment is due to be reversed and the cause remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, HOUSTON and STEAGALL, JJ., concur.
ADAMS, J., concurs specially.
ADAMS, Justice (concurring specially).
I concur specially. It has not been alleged that the contractor failed to comply with Ala.Code 1975, § 34-8-1 et seq., the regulatory provisions requiring the licensing of general contractors. Therefore, that section and the cases in which we have voided contracts entered in violation thereof are not implicated in this case. See Hawkins v. League, 398 So. 2d 232 (Ala. 1981); Cooper v. Johnston, 283 Ala. 565, 219 So. 2d 392 (1969); and Tucker v. Walker, 293 Ala. 589, 308 So. 2d 245 (1975).
[1] No ruling was made with respect to the Greens' counterclaim.
[2] For an excellent discussion of Code 1975, § 34-8-1 et seq. (regulatory statute for general contractors), see J & M Industries, Inc. v. Huguley Oil Co., 546 So. 2d 367 (Ala.1989). | October 19, 1990 |
0c8df6ad-a13f-40d4-8646-58cb8109c53c | Buchanan v. Collier | 571 So. 2d 1068 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1068 (1990)
John BUCHANAN
v.
Ron Vincent COLLIER.
89-570.
Supreme Court of Alabama.
November 2, 1990.
Rehearing Denied December 14, 1990.
Joe W. Morgan, Jr., Birmingham, for appellant.
Barry D. Vaughn and Wanda J. Batson of Proctor and Vaughn, Sylacauga, for appellee.
STEAGALL, Justice.
Ron Vincent Collier sued John Buchanan and Jack Newsome, alleging fraud arising out of the sale of an automobile. The jury returned a $100,000 verdict in favor of Collier, but the trial court remitted it to $50,000. Buchanan appealed from the judgment based on the jury verdict, and Collier attacked the remittitur. This Court, in Buchanan v. Collier, 555 So. 2d 134 (Ala. 1989), affirmed the judgment of liability, but reversed with regard to the remittitur because the reasons for reducing the verdict were not specified. We remanded the case for a hearing in accordance with our opinion in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).
*1069 While that appeal was pending, Buchanan obtained leave from this Court and filed a "motion for new trial" pursuant to Rule 60(b), A.R.Civ.P., on the ground that the judgment was obtained through false representations by Collier. Following an ore tenus hearing, the trial court denied Buchanan's motion. Buchanan appeals.
The underlying judgment in this case was based on the finding that Collier could not acquire a certificate of title to a rebuilt automobile that he had purchased from Buchanan. See our earlier opinion, cited above. After that judgment was rendered, a certificate of title to the automobile was issued to Collier. Collier has subsequently obtained a license plate for, and has driven, the automobile.
Buchanan contends that the underlying judgment was obtained by "fraud, misrepresentation, or other misconduct" by Collier and, therefore, that the trial court abused its discretion in denying his motion for "new trial." Specifically, Buchanan argues that Collier misrepresented his loss or injury by testifying that he could not acquire a certificate of title to, or a license plate for, the automobile and that the automobile could not be driven, when, in fact, a certificate of title to the automobile has been issued and Collier has obtained a license plate for, and has driven, the automobile.
The decision of whether to grant or deny relief under a Rule 60(b) motion is within the sound discretion of the trial court, and a strong presumption of correctness attaches to the trial court's ruling on a Rule 60(b) motion. Ex parte Dowling, 477 So. 2d 400 (Ala.1985). In reviewing the denial of a Rule 60(b) motion, this Court cannot consider the correctness of the underlying judgment, but is limited to determining whether the trial court abused its discretion in denying the motion. Douglass v. Capital City Church of the Nazarene, 443 So. 2d 917 (Ala.1983).
It appears from the record before us that after the underlying judgment was rendered, Collier notified the motor vehicle division of the State of Alabama Department of Revenue of the judgment and of his desire to obtain a certificate of title to the automobile. Collier filed a new application for a certificate of title and, in compliance with the request of the Revenue Department, provided the Revenue Department with a copy of the certificate of judgment. Upon inspection of the automobile by the Revenue Department, Collier signed the verification of the title application. The Revenue Department subsequently assigned a new vehicle identification number to the automobile and issued a certificate of title.
Because Collier was issued a certificate of title to the automobile only after he had provided the Revenue Department with a copy of the certificate of judgment, we cannot say that Collier made false representations in procuring the underlying judgment. See the facts and rationale in our earlier opinion. Based on the foregoing, we conclude that the trial court did not abuse its discretion in denying Buchanan's Rule 60(b) motion. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and HOUSTON, JJ., concur. | November 2, 1990 |
13ab3632-7bae-4bda-a673-89911a845cf1 | Ex Parte State | 568 So. 2d 857 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 857 (1990)
Ex parte STATE of Alabama.
(Re James Mack WATLEY
v.
STATE of Alabama).
89-694.
Supreme Court of Alabama.
September 28, 1990.
Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for petitioner.
Francis M. James of James & James, Andalusia, for respondent.
Prior report: Ala.Cr.App., 568 So. 2d 852.
PER CURIAM.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
MADDOX, STEAGALL and KENNEDY, JJ., dissent.
MADDOX, Justice (dissenting).
This Court granted the petition of the State of Alabama to review a determination made by the Court of Criminal Appeals that an indictment charging the defendant with unlawfully possessing marihuana in violation of Ala.Code 1975, § 13A-12-213, did not state an offense and, additionally, was void for vagueness. The indictment, in pertinent part, alleged that petitioner "did on to-wit, May 1, 1988, while at or near Covington County, Alabama, unlawfully *858 possess marijuana, a controlled substance, contrary to and in violation of Title 13A-12-213 of the Code of Alabama, 1975."
It is my opinion that the Court of Criminal Appeals, in holding that the indictment failed to state an offense and was also "void for vagueness," has misapplied the law of pleading a criminal offense under the provisions of Temporary Rule 15.2, Alabama Rules of Criminal Procedure,[1] which deals with the nature and content of indictments and informations. Because of this holding, I think that the judgment of the Court of Criminal Appeals, on the question of the sufficiency of the indictment to state an offense, should be reversed.[2]
In deciding that the indictment failed to state an offense and was void for vagueness, the Court of Criminal Appeals reasoned that "[t]he phrases `for other than personal use' and `for ... personal use only' modify, define, and classify the type of marihuana possession proscribed in §§ 13A-12-213 and -214," and that they are "`inseparable ingredients of the offense.' " The Court concluded that "[b]ecause the phrases are definitional components of the offenses set out in §§ 13A-12-213 and -214, no indictment pursuant to those sections can omit them and still charge an offense."
I believe that the Court of Criminal Appeals erred in failing to give any force to the fact that the specification in the indictment charging the statute violated shows that petitioner was charged only with violating § 13A-12-213 and not with violating § 13A-1-214.[3] In reaching its conclusion, therefore, the Court of Criminal Appeals failed to follow the spirit of Temporary Rule 15.2, which was designed, as the Committee Comment to the Rule states, "to simplify the pleading in criminal matters, much the same as the simplification of pleading in civil actions." Rather than simplifying pleadings in criminal proceedings, the decision, unfortunately, complicates them, and, in my opinion, destroys the concept this Court was attempting to promote by adopting Temporary Rule 15.2, that is, simplification of pleading in criminal cases. Because I think that we take a step backward by refusing to reverse that holding in the opinion of the Court of Criminal Appeals that declares the indictment to be void, I must dissent.
In registering my dissent, I will give the reasons why I believe that the indictment was sufficient, under the provisions of Temporary Rule 15.2, to charge felony possession of marijuana, and that the defendant, if he desired more details of the charged felony offense, could have required the State make a more definite statement of the charge, as provided for by Temporary Rule 15.2(e), which the Committee Comment states "provides a necessary safeguard for the defendant, in that for good cause shown the defendant can compel the state to submit additional details of the offense not required to be set out in the indictment."
The Court of Criminal Appeals did not set out a statement of the basic facts forming the basis of the prosecution, and because only a question of law was presented, it was unnecessary for that Court to do so. On its application for rehearing in the Court of Criminal Appeals, the State did not request, pursuant to Rule 39(k), A.R. App.P., that the Court of Criminal Appeals set out the facts that were presented in evidence; therefore, we do not have the basic facts before us on this petition, but, because the question presented is one of law, it is unnecessary to state the facts upon which the conviction was based.
I now address the central issue presented: the sufficiency of the indictment to charge a violation of the provisions of Ala. Code 1975, § 13A-12-213, the only section petitioner was charged with violating. That Code section reads:
(Emphasis added.) The Court of Criminal Appeals unfortunately feels that § 13A-12-214 must also be consulted in determining whether the indictment charges a violation of § 13A-12-213, as averred. Section 13A-12-214 sets forth the offense of unlawful possession of marihuana in the second degree, as follows:
(Emphasis added.)
Even though the precise holding of the Court of Criminal Appeals is that the phrases "for other than personal use" and "for his personal use only" are "`inseparable ingredients of the offense'" of unlawful possession of marihuana in either the first or second degree, and that no indictment returned to charge an offense under either section is sufficient if the phrases are omitted from the indictment, that Court also held that "[a]dditionally, we note that an indictment merely charging the `possession of marihuana' under the 1987 Drug Crimes Amendments Act is void for vagueness because, not only does it fail to charge an offense, but a defendant cannot determine whether he is being charged under § 13A-12-213(a)(1), § 13A-12-213(a)(2), or § 13A-12-214(a)." I am of the opinion, of course, that when the indictment specified that he was charged with violating § 13A-12-213, not § 13A-12-214, clearly he knew he was being charged with felony possession of marihuana. If he wanted further details regarding which of the subsections the State was going to proceed under, then he could have required the State to furnish that information by asking for a more definite statement of the charge, as authorized by Temporary Rule 15.2(e), the same procedure used in civil practice, which, according to the Committee Comment to Temporary Rule 15.2, was intended.
The effect of this holding by the Court of Criminal Appeals is, of course, that the legislature, by adopting the Drug Crimes Amendments Act of 1987, intended to make it more difficult for the State to allege and prove offenses involving the unlawful possession of marihuana than was the case under prior law, because the court specifically said as much:
Watley v. State, 568 So. 2d 852, 853-854 (Ala.Cr.App.1989).
That, in my opinion, does not express correctly the legislative intent in passing the Drug Crimes Amendments Act of 1987; therefore, I cannot agree with the holding by the Court of Criminal Appeals, insofar as that holding relates to the sufficiency of the indictment. I do agree with that court's holding that the State is required to prove, in the case of a felony possession of marihuana, as here, that the defendant either possessed the marihuana for other than personal use, or for his personal use after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his personal use only.
It is apparent to me that the Court of Criminal Appeals has strictly construed the provisions of the Drug Crimes Amendments Act of 1987, insofar as the requirements of an indictment or information to charge an offense under the Act are concerned, and has, therefore, failed to construe that Act according to the provisions of Ala.Code 1975, § 13A-1-6, which provides that "[a]ll provisions of [Title 13A] shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in section 13A-1-3." I recognize that the legislature made substantial changes in the law relating to possession of marihuana, but I do not think that the legislature ever intended to repeal our rules of criminal procedure controlling the method for laying the charge in an indictment or information.
I do not think that there is any question *861 that § 13A-12-213 gives "fair warning"[4] to a defendant of the conduct that constitutes a felony offense, but I do not believe that the indictment must set forth specifically the quo modo of the wrongful possession.
Applying these principles to this case, and construing the two sections of the Drug Crimes Amendments Act of 1987 that are involved in this case, I can conclude only that the legislature, while separating the offense of unlawful possession of marihuana into first and second degrees, did not intend to make the phrases contained in the statutes constituent elements of the offense so as to require that an indictment or information be dismissed if the phrases were not contained therein.
The indictment in this case read:
What is the purpose of an indictment? The word "indictment" is said to be derived from the Old French word "inditer," which signified to indicate, to show, or to point out.[5] Both the Constitution of the United States and the Constitution of Alabama (1901) declare that a defendant in a criminal prosecution has a right to be informed of "the nature and cause of the accusation" made against him.[6] The traditional method of informing a defendant in a criminal prosecution of the nature and cause of the accusation against him has been through indictment by a grand jury. In fact, both the Constitution of the United States and the Constitution of Alabama, by implication, grant the defendant a right to an indictment by a grand jury in most cases.[7] In addressing the important function that an indictment serves, the United States Supreme *862 Court said in United States v. Cruikshank, 92 U.S. 542, 558, 23 L. Ed. 588 (1875):
In Beasley v. State, 18 Ala. 535, 540 (1851), this Court, addressing the sufficiency of an indictment, stated:
Again, in Ex parte Hightower, 443 So. 2d 1272, 1273 (Ala. 1983), this Court stated:
One of the fundamental purposes that an indictment serves, which has been referred to by the United States Supreme Court and also by this Court, is to apprise a defendant of the nature and cause of the accusation made against him in order that he can prepare an adequate defense.[8]
The questions to be asked are: If one applied the law as contained in Ala.Code 1975, §§ 13A-1-6 and 13A-1-3, would he conclude that the indictment in this case gave the accused "fair warning" that he was charged with the unlawful possession of marihuana, a controlled substance; and, because the legislature has divided the offense of possession of marihuana into degrees, would he conclude that the indictment reasonably differentiated between those two degrees so that the defendant could avail himself of a plea of former jeopardy if he should be acquitted of the stated charge and the State attempted to prosecute him under the provisions of § 13A-12-214?
The answer to those questions, of course, is clearly in the affirmative.
My answer to those questions is based not only upon an interpretation of legislative intent, but also, in part, upon my construction of Temp.Ala.R.Crim.P. 15.2, "Nature and Contents of Indictment or Information," which was effective at the time this indictment was returned.[9]
Temporary Rule 15.2 provides:
Comparing the contents of the indictment with the provisions of Temporary Rule 15.2, I consider it quite apparent that Watley was charged with felony possession of marihuana. Admittedly, the indictment does not set out the quo modo of that possession, but if Watley wanted to require the State to specify whether he was being charged under subsection (a) or under (b) of § 13A-12-213, he could have asked for a more definite statement of the charge, as he is allowed to do by Temporary Rule 15.2(e).
While I have been unable to locate an Alabama case in which the exact question presented by this petition has been decided, I have found authority from other jurisdictions holding that the citation of the statute violated is sufficient to allege the material elements of the offense charged. In Russell v. State, 69 Md.App. 554, 518 A.2d 1081 (1987), the Maryland Court of Special Appeals was asked to decide whether an indictment entered against the defendant Russell was sufficient on its face: it correctly cited the statute under which Russell was charged but failed to allege an essential element of that offense. The Maryland court held that the citation of the statute allegedly violated by Russell, appearing in the body of the indictment, effectively incorporated by reference into the indictment all the elements of that statutory offense. Furthermore, the court noted in its opinion that the reference to the statute in the indictment was "not a mere citation for the purposes of convenience" but was a statement of an offense of which Russell had been accused. 69 Md.App. at 559, 518 A.2d at 1083. The citation of the statute violated is not a matter of discretion, but is required by Temporary Rule 15.2(b), which states that "[t]he indictment or information shall state for each separate offense, other than lesser included offenses, the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated."
The gravamen of the offense proscribed is the unlawful possession of marihuana. The legislature has specified that the felony possession of marihuana can be proven by either of two ways as set forth in the statute. The citation of this statute in the body of the indictment was sufficient on its face to state an offense of felony possession, and if Watley wanted to know which alternative he was charged with violating, he could have asked the State for a more definite statement of the charge. Temporary Rule 15.2(e).
*864 Based on the foregoing reasons, I would not quash the writ in this case, but would reverse the judgment of the Court of Criminal Appeals insofar as it holds that the indictment in this case failed to state an offense.
STEAGALL and KENNEDY, JJ., concur.
[1] The provisions of Temporary Rule 15.2 will be found in Rule 13.2, Alabama Rules of Criminal Procedure, effective January 1, 1991.
[2] In its petition, the State also contended that the defendant failed to preserve, for review, his objection to the sufficiency of the indictment, because it came too late. I have reviewed the record on this point, and I cannot agree with the State's argument in this regard.
[3] The specification of the statute violated is required specifically by Temporary Rule 15.2(b) (Rule 13.2(b), effective January 1, 1991).
[4] The subsections of § 13A-1-3 that would be applicable to this case would be those stating the purpose: "[t]o give fair warning of the nature of the conduct proscribed and of the punishment authorized upon conviction," and "[t]o define the act or omission and the accompanying mental state that constitute each offense," and "[t]o differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties for each."
[5] The Cyclopedia Law Dictionary 569 (3d ed. 1940).
[6] U.S. Const. amend. VI states:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation...." (Emphasis added.)
Ala. Const. art. I, § 6, states:
"That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation ...."
[7] U.S. Const. amend. V states:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury...." (Emphasis added.)
Ala. Const. amend. 37 states:
"No person shall for any indictable offense be proceeded against criminally by information, except in cases arising in the militia and volunteer forces when in actual service, or when assembled under arms as a military organization, or, by leave of the court, for misfeasance, misdemeanor, extortion and oppression in office, otherwise than is provided in the Constitution; provided, that in cases of misdemeanor, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established. Provided further that in all felony cases, except those punishable by capital punishment, the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings in such manner as may be provided by law if the defendant, after having had the advice of counsel of his choice or in the event he is unable to employ counsel, the advice of counsel which must be appointed by the court, makes known in open court to a judge of a court having jurisdiction of the offense that he desires to plead guilty, provided, however, the defendant cannot plead guilty within 15 days after his arrest."
(Emphasis added.)
[8] Temp.Rule 15.2(a), A.R.Crim.P., states:
"15.2 Nature and contents of indictment or information.
"(a) In General. The indictment or information shall be a plain, concise statement of the facts in ordinary language sufficiently definite to inform a defendant of common understanding of the offense charged and with that degree of certainty which will enable the court, upon conviction, to pronounce the proper judgment." (Emphasis added.)
[9] The subject matter of Temporary Rule 15.2 will be covered in Rule 13.2, Alabama Rules of Criminal Procedure, effective January 1, 1991. Rule 13.2 is different from Temporary Rule 15.2 in two particulars. The words "statement of the facts" in Temporary Rule 15.2(a) have been changed to read "statement of the charge," and the sentence in Temporary Rule 15.2(d) that reads "It is not necessary to state the precise time or date at which or on which the offense is alleged to have been committed, or the place where the offense is alleged to have been committed," has been changed to add the words "unless they are a material element of the offense." | September 28, 1990 |
00002a32-ac08-4b41-9383-3c90b9cbc7ce | Roscoe v. Jones | 571 So. 2d 1043 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1043 (1990)
Frank J. ROSCOE
v.
David JONES, Jr., individually; and David Jones, Jr. & Associates, Inc.
89-1162.
Supreme Court of Alabama.
October 26, 1990.
*1044 W. James Ellison, Birmingham, for appellant.
Hub Harrington of Najjar, Denaburg, Meyerson, Zarzaur, Max, Wright & Schwartz, Birmingham, for appellees.
ADAMS, Justice.
Frank J. Roscoe appeals from a judgment confirming an arbitration award of $10,359.00 in favor of David Jones, Jr. and David Jones, Jr., & Associates, Inc. (together referred to herein as "Jones"). We affirm. The appellant raises three issues for our consideration on this appeal:
The facts relevant to this appeal are as follows:
In September 1987, Roscoe and Jones entered into a contract whereby Jones was to provide architectural services for Roscoe. Specifically, Jones agreed to provide a complete set of architectural, electrical, and mechanical drawings. These plans were for the conversion of a three-story warehouse into an office, meeting, and reception center. On September 28, 1987, Jones and Roscoe entered into a contract styled "Standard Form of Agreement Between Owner and Architect." The contract contained the following provision:
The focus of attention centered on the second floor of the warehouse. It was apparently Roscoe's intent to use the second floor as an assembly area for public gatherings and meetings.
The City of Birmingham Buildings and Inspections Department rejected the first set of drawings provided by Jones. Jones submitted a second set of plans for approval and informed the Birmingham Buildings and Inspections Department that the second floor would be used for business purposes only. The Buildings and Inspections Department then approved the second set of plans.
*1045 Roscoe did the actual renovation and construction himself. After the completion of the second floor, he applied to the City of Birmingham for a liquor license. The Buildings and Inspections Department then learned of the intended use of the second floor as a public assembly area and refused to grant the liquor license. The Department also required Roscoe to close off part of the second floor until design changes were made and required Roscoe to install three additional stairwells.
Roscoe filed a proceeding under the arbitration provisionArticle 9of the contract with Jones. Roscoe complained that Jones had breached the agreement by failing to provide architectural supervision during the project. Roscoe sought approximately $30,000.00 in damages. Jones counterclaimed, alleging that he had been induced to enter the agreement based upon Roscoe's representation that he would hire a competent general contractor or manager to perform the work. Jones further claimed that Roscoe did not adhere to his drawings and changed the intended use of the second floor and that the change required additional architectural work by Jones. Jones sought $18,590.00 for this extra work.
At the subsequent arbitration hearing, the arbitrator found that Roscoe had breached his contract with Jones and that Jones had done nothing wrong, and ordered that Roscoe indemnify and "hold Jones harmless for work done resulting in building code violations." The arbitrator awarded Jones $10,059.00. The arbitrator also assessed the administrative fees and costs of the American Arbitration Association, totalling $1,517.06, and required Roscoe to pay Jones $300.00 for the portion of costs and fees that had been previously paid by Jones. Roscoe was also required to pay the American Arbitration Association $367.06, the portion of the expenses remaining due. Finally, Roscoe was required to pay to the American Arbitration Association the $25.00 expense of the arbitrator.
On December 1, 1989, Jones filed a petition to confirm the arbitrator's award of $10,059.00 plus the $300.00 in costs and fees assessed against Roscoe. Thereafter, numerous motions were filed by both parties. The motions filed by Roscoe included a motion for review of the arbitrator's award and a motion to set aside and quash the execution of the award. The motions filed by Jones included a motion for a protective order preventing the taking of his deposition; a motion to strike affidavits filed by Roscoe and Kenneth W. Green; and a motion to strike or, in the alternative, to dismiss the motion by Roscoe to review the award. After these motions were filed, the trial court entered an order denying each of Roscoe's motions and granting Jones's motions. The court confirmed the arbitrator's award. Roscoe then filed a motion for summary judgment, a motion for "reconsideration" of the court's order confirming the award, and a motion to alter, amend, or vacate the judgment. On April 2, 1990, the trial court entered another order denying these motions. Roscoe now appeals, seeking to set aside the arbitrator's award.
Roscoe first argues that the arbitration agreement contained in the contract was a legal nullity at its inception, and, therefore, could not be the basis for a lawful or judicially enforceable award. We disagree. In support of his argument Roscoe first cites Ala.Code 1975, § 8-1-41(3), which states, "The following obligations cannot be specifically enforced: ... (3) An agreement to submit a controversy to arbitration." However, Roscoe's reliance on this statute is misplaced. That statute has no application to this case. The record indicates that at no time did either party seek to specifically enforce the arbitration provision of the contract. Rather, Roscoe initiated the arbitration proceeding and participated in it. Jones agreed to the arbitration and filed a counterclaim. In fact, the record indicates that Roscoe controlled the proceedings and presented most of the evidence. Because Roscoe availed himself of the arbitration provision by requesting arbitration, and did nothing to indicate an objection to the provision, he has effectively waived any right to dispute its validity.
*1046 Roscoe also asserts that the provision is invalid under this Court's decision in Ex Parte Warren, 548 So. 2d 157 (Ala.1989). Roscoe argues that the proper inquiry for the trial court in determining the validity of the arbitration agreement was whether, at the time the contract was entered into, the parties contemplated substantial interstate activity. Warren, 548 So. 2d at 160. This, Roscoe argues, determines the applicability of the Federal Arbitration Act (hereinafter "FAA"). Regardless of what Warren determines, it is clearly distinguishable on its facts and has no application or relevance to the present case. Warren involved an arbitration agreement in connection with the retail sale of an automobile. In Warren the plaintiff objected to arbitration when the defendant demanded it and there was no participation in arbitration by either party, and no award was made. In the case at bar, Roscoe made no objection to the arbitration provision of the contract, requested arbitration of the dispute, and participated in arbitration proceedings, and the arbitrator made an award. Furthermore, in Warren we indicated the narrow application of our holding:
Warren, 548 So. 2d at 160. (Emphasis added.) Roscoe argues that the award should be set aside because the agreement did not involve interstate commerce as contemplated by the FAA. If it did not, then the FAA would not apply and under Alabama law the "pre-dispute" arbitration agreement could not be specifically enforced. § 8-1-41(3). While Warren addressed the application of the FAA and the question of interstate commerce, we see no need to do so here. As stated above, Warren involved a set of facts totally different from those now before us. There is no question here of one party seeking to enforce the arbitration agreement. Roscoe initiated the arbitration and participated without objection. Roscoe has effectively validated the provision through his actions. Therefore, under the facts of this case, we hold that Roscoe has waived his right to question whether the agreement itself was subject to specific enforcement by a court.
Roscoe next assails the arbitrator's award as a product of mistake, bad faith, partiality, and bias. In his brief, Roscoe presents us with a long list of facts that were before the arbitrator. Roscoe then argues that the facts are so clearly in his favor that by ruling for Jones the arbitrator must have made a mistake. Roscoe further asserts that the arbitrator's findings and methods evidence a partiality or bias in favor of Jones. These contentions are unsupported, as well as unpersuasive. Roscoe's allegation of mistake is grounded in his belief that the only reasonable interpretation of the facts had to be in his favor. Roscoe's subjective opinion of what the facts showed cannot be the basis for a finding of mistake when, as is the case here, the record indicates that the arbitrator made an objective interpretation of the evidence. Furthermore, the mere fact that the ruling was adverse to Roscoe is no proof that the arbitrator showed bias or partiality toward Jones. Finally, the methods used by the arbitrator in no way indicate to us the existence of bias or partiality. We see no proof whatever to support any of Roscoe's claims of mistake, bias, or partiality.
Last, Roscoe argues that the arbitrator's award was obtained through fraud and therefore should be set aside. Specifically, Roscoe alleges that Jones procured the award through false and fraudulent testimony. The record, however, reflects no instances that we can find of fraud, deceit, or false testimony. It appears to us, rather, that the arbitrator weighed the facts before him and made his decision favoring Jones based on his objective interpretation of those facts. Roscoe now attacks the arbitrator's decision as fraudulent merely because he is unhappy with the result. We agree with the trial court that the record does not support Roscoe's allegations of fraud.
For the reasons set out in this opinion, the judgment of the trial court confirming the arbitrator's award is affirmed.
*1047 Jones has asked this Court to award him an attorney fee. Jones argues that this appeal was frivolous and that Roscoe has acted improperly in regard to it and that the award of such a fee is therefore warranted. However, after a careful examination of the record and of the briefs submitted, we conclude that such an award is not appropriate in this case.
AFFIRMED; MOTION FOR ATTORNEY FEE DENIED.
MADDOX, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | October 26, 1990 |
c0e7099a-dd1e-4b26-9a7f-d5fad70912f2 | Grabert v. Lightfoot | 571 So. 2d 293 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 293 (1990)
Jesse K. GRABERT
v.
Dr. Robert LIGHTFOOT.
89-633.
Supreme Court of Alabama.
November 16, 1990.
Jesse J. Grabert, pro se.
W. Boyd Reeves and Scott G. Brown of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
MADDOX, Justice.
Jesse K. Grabert was diagnosed by his personal physician as having a hernia in the left groin area and was referred to Dr. Robert Lightfoot for surgery. On May 1, 1987, Dr. Lightfoot operated on Grabert but failed to locate the hernia. On June 8, 1987, after Grabert continued to have symptoms, Dr. Lightfoot informed Grabert that he did indeed have a hernia and offered to perform another operation at no charge. Grabert declined and had Dr. Rudolph Bourgeois perform the operation. During that operation on June 26, 1987, Dr. Bourgeois located the hernia. This operation left Grabert impotent; it also left him unable to perform the type of work he had previously done. Grabert filed suit against Dr. Lightfoot on May 12, 1989; Dr. Lightfoot moved for summary judgment, alleging that the two-year statute of limitations in Ala.Code 1975, § 6-5-482 had expired prior to the filing of the lawsuit. The trial court granted Dr. Lightfoot's motion. Grabert appealed from the summary judgment.
*294 The two issues are: (1) when did Grabert's cause of action accrue, on May 1, 1987, when Dr. Lightfoot is alleged to have negligently performed the operation, or on June 26, 1987, when Grabert was further damaged during the second operation, and (2) if the statutory period of limitations had run, then is Dr. Lightfoot estopped from raising that defense?
As this Court stated recently in Colburn v. Wilson, 570 So. 2d 652, 654 (Ala.1990):
Grabert contends that the statutory limitations period did not begin to run until the date of the second operation on June 26, 1987. However, it is clear that any negligence that may have been committed by Dr. Lightfoot occurred on May 1, 1987, when the first operation was performed. Further, it is clear that Grabert was damaged at the time of the first operation on May 1, 1987; he had a hernia and Dr. Lightfoot failed to find or to remedy that condition. As this Court stated in Garrett v. Raytheon Co., 368 So. 2d 516, 518-19 (Ala.1979):
In Street v. City of Anniston, 381 So. 2d 26, 31 (Ala.1980), this Court said:
Certainly, Grabert was entitled to maintain an action against Dr. Lightfoot immediately after the May 1, 1987, operation, despite the fact that the extent of Grabert's injuries allegedly caused by Dr. Lightfoot's failure to find or to remedy the hernia may not have been fully known then.
Having determined that the statute of limitations period had run prior to Grabert's filing suit, we now turn to the issue of whether Dr. Lightfoot was estopped from raising the statute of limitations as a defense. Grabert contends that Dr. Lightfoot's offer to perform a second operation at no charge and Dr. Lightfoot's engaging in settlement negotiations with Grabert implied that Dr. Lightfoot would not raise the statute of limitations as a defense. We have stated, "As a general matter, the type of conduct which is sufficient to give rise to an estoppel against pleading the statute of limitations must amount to an affirmative inducement to the claimant to delay bringing action." Seybold v. Magnolia Land Co., 376 So. 2d 1083, 1085 (Ala.1979). A review of the record shows no "affirmative inducement" on Dr. Lightfoot's part to delay bringing this action; therefore, Dr. Lightfoot was entitled to raise the statute of limitations as a defense.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | November 16, 1990 |
823aeee7-26e2-4ebb-a7ba-6565efbb8a59 | Roberts v. Public Cemetery of Cullman | 569 So. 2d 369 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 369 (1990)
Betty ROBERTS
v.
PUBLIC CEMETERY OF CULLMAN, INC., and Doyle Roberson.
No. 89-169.
Supreme Court of Alabama.
September 28, 1990.
*370 S. Shay Samples and Richard D. Stratton, Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
W.J. McDaniel and Robert G. Boliek, Jr. of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellees.
HORNSBY, Chief Justice.
Plaintiff Betty Roberts appeals from a judgment for the defendants, Public Cemetery of Cullman, Inc., and Doyle Roberson, the cemetery's sexton. This suit arose out of the burial of Roberts's deceased husband. Roberts's complaint contained three counts, alleging: (1) that the defendants had acted negligently or wantonly (a) in failing to have the grave of her deceased husband acceptable for burial, by allowing it to contain water, (b) in burying her deceased husband in the wrong grave, and (c) in failing to maintain the grave site after burial; (2) that the defendants breached their contract to inter her deceased husband at the grave site owned by her; and (3) that the defendants' conduct involving the burial amounted to intentional infliction of emotional distress (the tort of outrageous conduct or "outrage"). At the close of the plaintiff's case, the trial court dismissed Roberson as a defendant.[1] The trial court directed verdicts for the cemetery on Roberts's contract claim and on her outrage claim; the jury then returned a verdict for the cemetery on her claims of negligence and wantonness.
On appeal, Roberts raises five issues: (1) whether the trial court erred in denying her motion for new trial; (2) whether the trial court erred in not submitting her contract claim to the jury; (3) whether the trial court erred by failing to direct a verdict in her favor on her negligence claim; (4) whether the trial court erred by directing a verdict for the cemetery on her outrage claim, and (5) whether the trial court erred in excluding testimony of statements made by Roberson to Roberts's son, Larry Roberts, who was not a party to the lawsuit. Because this lawsuit was filed after July 11, 1987, the "substantial evidence rule" applies. Ala.Code 1975, § 12-21-12.
The basic facts are as follows: The plaintiff and her husband, J.O. Roberts, purchased from the corporate defendant two grave sites at its cemetery, known as the Public Cemetery of Cullman; those grave sites were located in Lot # 134, Block # 802. J.O. Roberts died on July 2, 1987. Funeral services were held on July 5, with burial to occur at 2:00 P.M. The grave had been dug on the morning of July 5. It had rained the day before, but it did not rain the day of the funeral. Because of seepage into the grave, Roberson pumped water out of the grave two times on the morning of the funeral, but he did not check for additional seepage after the second pumping at 10:00 A.M. Winford Chamblee, not an employee of the cemetery, arrived to install the top ground vault at the grave at 11:30 A.M. After setting the vault on boards over the grave, Chamblee pumped water out of the grave.
The graveside service occurred without incident. One of the pallbearers said that he noticed water in the grave, and that when the casket and vault were lowered into the grave, he saw water come up around the sides of the vault. The plaintiff was not present at the grave while the casket and vault were being lowered; she had returned to her car and was waiting to return to the grave site after the vault and casket had been lowered. Larry Roberts said that he saw the water rise around the lid of the vault and that he told the workers to stop; he then went to the cemetery office to get Roberson. Roberson went to the grave site and began pumping water out of the grave. The burial was not completed until a half hour after the first attempt *371 to lower the vault. The plaintiff saw the pumping operation from her car, but at no time did she ever see water in the grave. As the plaintiff was returning to the grave, Roberson stopped his tractor near her and shouted something at her, but she did not recall anything that was said. At some time after the burial, Roberson said to Larry Roberts, "I had that grave ready, buddy. I am not God. I can't control the rain." The plaintiff did not hear Roberson make these comments.
The plaintiff visited her husband's grave during July, August, and September 1987 and noticed that the grave was sinking and that no sod had been placed on the grave. When she asked Roberson to fix these problems, he told her that the cemetery had buried her husband in the wrong grave. He had been buried in Lot # 133, a plot owned by another family, rather than Lot # 134, the plot owned by the plaintiff. The plaintiff refused to agree to have her husband reburied in the proper lot, and the cemetery made arrangements to have another body moved so that the plaintiff could be given title to Lot # 133. Prior to the plaintiff's filing suit, the cemetery had given her title to both Lot # 133 and Lot # 134.
Roberts argues that the trial court erred in denying her motion for a new trial, claiming that the jury's verdict on the negligence and wantonness claims was contrary to uncontroverted evidence that the cemetery was negligent in burying her husband in the wrong grave.
The standard for the review of a denial of a new trial motion was set forth in Davis v. Ulin, 545 So. 2d 14, 15 (Ala.1989):
While the cemetery admitted negligence in the burying of Roberts's husband in the wrong grave, it did not admit that the plaintiff was entitled to damages. There was no evidence presented of any monetary loss suffered by the plaintiff because her husband was buried in the wrong grave. Roberts argues that the cemetery's admission of negligence left nothing for the jury to resolve, but that argument does not take into consideration the fact that damages arising out of that negligence were disputed, and thus, that a jury question was presented. A claim alleging negligence involves more than proof of negligence (which is made up of proof of the elements of duty and breach of that duty); it also requires proof of the elements of proximate cause and injury. Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala.1989). The fact that the cemetery admitted negligence does not mean that it admitted proximate cause and damages as well; in this case, resolution of those two elements was properly left to the jury. We cannot say that the jury's verdict was plainly and palpably wrong.
Roberts also argues that the trial court erred in not submitting her contract claim to the jury. She claimed that the cemetery breached the burial contract by burying her husband's body in the wrong grave. The trial court explained its reason for not sending the plaintiff's contract claim to the jury:
This Court, however, has recognized that claims for tortious conduct and for breach of contract may be maintained in a single suit. See Eidson v. Johns-Ridout's Chapels, Inc., 508 So. 2d 697 (Ala.1987). There we stated:
508 So. 2d at 701. The Court has long recognized that, while a defendant's failure to exercise reasonable care or to perform the act promised in a contract may give rise to an action ex delicto, such failure also gives rise to an action ex contractu when there is a breach of promise. Vines v. Crescent Transit Co., 264 Ala. 114, 85 So. 2d 436 (1956). Eidson relied on Waters v. American Casualty Co., 261 Ala. 252, 73 So. 2d 524 (1954), wherein an insured had brought an action against its liability insurer. The Court stated:
Id. at 258, 73 So. 2d at 528-29 (citations omitted). See also Combined Services, Inc. v. Lynn Electronics Corp., 888 F.2d 106 (11th Cir.1989) (Alabama law permits plaintiff to recover judgment in actions for breach of contract and fraud).
Here, the trial court ruled that Roberts had to proceed under the tort claim and not under the contract claim, because there was no contract provision stating that the cemetery would use due care. However, there was clearly a breach of the agreement to bury the plaintiff's husband in the specific grave owned by the plaintiff; the defendant did not perform the act promised in the contract. Therefore, the plaintiff was entitled to present her contract claim to a jury, and the trial court's directed verdict on this claim was in error.
We note that the jury's findings against the plaintiff on the negligence claim could be read to indicate that the plaintiff was not entitled to damages. However, in light of the fact that damages under the breach of contract claim were never considered, we do not hold, as a matter of law, that ex contractu damages are not recoverable.
Roberts argues that the trial court erred in not directing a verdict in her favor on her negligence count. As we determined in part I, there was a jury question on her negligence claim. Therefore, the failure to direct a verdict on this claim was not error.
Roberts contends that the trial court erred in directing a verdict for the cemetery on her outrage claim. This Court recently stated in Green Tree Acceptance, Inc. v. Standridge, 565 So. 2d 38, 44 (Ala. 1990):
The defendant's conduct in this case is clearly not so extreme in degree as to go beyond all possible bounds of decency. The evidence showed that seepage of water into graves after a rain is a common problem, and that the defendant took actions to remedy that problem. As to the allegations that the cemetery was not maintaining the grave properly, the evidence showed that there was a drought during that period and that all of the lots in the cemetery were suffering from the effects of that drought. Further, there was no evidence that the cemetery did, or did not, do anything in regard to this grave different from what it did in regard to all the other graves at the cemetery.
Therefore, the trial court did not err in directing a verdict for the cemetery on Roberts's outrage claim.
Roberts's last argument is that the trial court erred in not allowing Larry Roberts to testify as to the statements made by Roberson to him. These statements were clearly hearsay, but Roberts argues that they were not offered to prove the truth of the matter but rather to prove Roberson's state of mind and intent in regard to her claims for outrage and wantonness. As held above in part IV, Roberts's claim for outrage was properly withheld from the jury. As for Roberts's claim that the cemetery was wanton in its preparation and maintenance of the grave, we cannot see how Roberson's statements"I had that grave ready, buddy. I am not God. I can't control the rain"have any relevance to that claim. Rulings as to the admissibility of evidence rest largely within the discretion of the trial judge and will not be disturbed on appeal in the absence of an abuse of discretion. Russellville Flower Craft, Inc. v. Searcy, 452 So. 2d 478, 480 (Ala.1984). We find no abuse of discretion here.
For the foregoing reasons, we affirm the trial court's judgment as to all of the claims, except the claim alleging breach of contract. As to that claim, the judgment is reversed and this cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
JONES, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX and HOUSTON, JJ., concur in part and dissent in part.
MADDOX, Justice (concurring in part, and dissenting in part).
I concur with that part of the majority opinion that affirms the trial court's judgment concerning Roberts's claims of negligence, wantonness, and outrage. However, I must dissent from that portion of the opinion that reverses the trial court's directed verdict for the defendant on Roberts's contract claim.
Cases of this kind pose a dilemma, and I would argue that ordinarily a contract claim should go to the jury,[2] but even assuming *374 that Roberts had presented evidence of actual damages due to a breach of the contract,[3] I am of the opinion that the trial court's failure to submit the contract claim to the jury was harmless error, if error at all. In instructing the jury, the trial judge arguably gave back some of what his prior decision took away; the trial judge's jury instruction included the following:
Although the jury was ultimately instructed to return verdicts on the counts of negligence or wantonness, the jury was also essentially instructed that a contract existed and that the contract contained an implied duty of due care. The jury was further instructed to award, if appropriate, the very damages claimed under the contract theory. The jury found that the defendant did not negligently or wantonly breach the duties imposed upon it by the contract and thereby damage the plaintiff; therefore, the failure to submit the breach of contract claim was not prejudicial error, and under Rule 45, Ala.R.App.P., the judgment of the trial court should not be reversed. Because the jury found that the defendant had not breached the duties imposed by the contract, I cannot see how the failure to instruct the jury on breach of that very same contract "injuriously affected the substantial rights" of the plaintiff. Under Rule 45, I would affirm the trial court's judgment as to this claim as well.
HOUSTON, Justice (concurring in part, and dissenting in part).
I would affirm the trial court's judgment as to all claims.
In Blumberg v. Touche Ross & Co., 514 So. 2d 922, 927 (Ala.1987), this Court held:
I can find no express promise to use due care in any document in the record. The only express contract that I can find consisted of a "certificate of purchase," an "order for interment," a receipt for that interment, and rules and regulations of the Public Cemetery of Cullman. None of these documents contains an express undertaking to use due care. Such a duty will not be implied so as to give rise to a contractual remedy, in the absence of an express term. See Blumberg v. Touche Ross & Co., at 927, n. 4 (citing Garig v. East End Memorial Hosp., 279 Ala. 118, 182 So. 2d 852 (1966)).
[1] Roberts does not contest on appeal the dismissal as to Roberson.
[2] This Court has recognized that claims for tortious conduct and for breach of contract may be maintained in a single suit. Eidson v. Johns-Ridout's Chapels, Inc., 508 So. 2d 697 (Ala.1987). In that case, involving the shipment of a body, this Court stated:
"We can appreciate the dilemma faced by the learned trial judge, because this Court has had difficulty agreeing on cases involving the question of whether an action is ex delicto or ex contractu, but we hold that plaintiffs produced at least a scintilla of evidence that the defendants made specific promises to plaintiffs and then failed to perform as promised."
508 So. 2d at 701. This Court recognized that a defendant's failure to exercise reasonable care or to do the act promised in a contract may give rise to an action for breach of contract.
[3] Although Roberts provided substantial evidence that there was a contract to bury her husband's body in a specific grave and that that contract was breached, Roberts presented no evidence of any monetary damages. A plaintiff cannot recover for emotional distress and similar damages in a contract action. "Absent proof of actual damage or injury, there can be no recovery for breach of contract." Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 523 (Ala.1983). Roberts offered no proof of any actual damages caused by this breach. Further, the damages awarded in a breach of contract action should return the injured party to the position he would have occupied had the breach not occurred. Boyett v. Oakes, 518 So. 2d 37, 40 (Ala.1987). Here, the cemetery gave Roberts the additional lot and had to remove another body in order to do so. Thus, Roberts's husband was buried, and she owned two lots rather than the one she had prior to the breach. There was no evidence that she was in a worse position after the breach. | September 28, 1990 |
d9556b21-22af-4b10-ac04-0cbbbd952687 | Sashinger v. Wynn | 571 So. 2d 1065 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1065 (1990)
Arthurine SASHINGER
v.
Lonnie B. WYNN.
89-551.
Supreme Court of Alabama.
November 2, 1990.
Ronnie L. Williams, Mobile, for appellant.
Harold Lee Odom, Chatom, for appellee.
ADAMS, Justice.
Mrs. Arthurine Sashinger appeals from a judgment holding that an existing fence between her property and the property of Lonnie B. Wynn is the true dividing line between their two parcels of land. The trial court further ordered that the fence line be surveyed and that judicial markers be placed at the end of the fence to reflect the new dividing line. We affirm.
The record reveals the following relevant facts: Arthurine Sashinger was raised, and *1066 has spent most of her life, in Washington County, Alabama, on or near what was referred to as the Holcombe tract. She has actually resided on the Holcombe tract for the past 15 years. Portions of this large tract were periodically sold so that the tract is now owned by several landowners. Lonnie B. Wynn purchased his portion of the Holcombe tract in 1963 from John E. Henson, Jr. At that time, a fence surrounded the property that was not described in the deed to Wynn. However, Wynn believed that the fence was the true dividing line and that he owned the land inside its border. Virtually all of the surrounding landowners also considered the fence to be the true dividing line and that the land inside the fence belonged to Wynn. While the record is not clear on when the fence was erected, the surrounding landowners cannot remember a time when it was not there. From the time he purchased the land in 1963, Wynn has maintained the fence and has cultivated the land inside its borders. Until 1986, no one had ever disputed Wynn's possession of the land inside the fence or asserted a claim against the property.
In 1986, the remainder of the Holcombe tract was divided among several persons by a final judgment in the case of J.C. Skinner v. Elzadie Holcombe, et al., Case No. CV-81-034(P) (Washington County Circuit Court). Sashinger was awarded two parcels in that judgment. Pursuant to that judgment, a survey of the land was conducted. The survey revealed that the fence line separating Sashinger's property and Wynn's property was not the dividing line described in Wynn's deed. Apparently, the fence bore no relationship to the property line described in Wynn's deed. Until this point, no one in the community, including Sashinger, had ever questioned that the fence was the true property line or that the land inside the fence belonged to Wynn. However, once the surveyor's marks were placed, Sashinger noticed that the fence encroached onto one of her newly acquired parcels.
On October 9, 1987, Sashinger filed an action to resolve the boundary dispute. She asked the trial court to judicially establish the boundary between her property and Wynn's property. Wynn, in his answer and counterclaim, asserted that he held title to the land inside of and up to the fence by adverse possession. He maintained that he and his predecessors had been in adverse possession for more than 20 years and that the land inside the fence had been enclosed by the fence for more than 20 years.
The case was heard without a jury. After hearing the evidence, the trial judge ruled that the fence line represented the true dividing line between the parcel owned by Wynn and the parcel owned by Sashinger. The judge held that Wynn had acquired title to the land up to the fence by adverse possession. Sashinger now asks this Court to reverse the findings of the trial court.
Sashinger's sole argument on appeal is that even though Wynn may have established title to the land inside the fence by adverse possession, he was divested of title in 1986 as a result of the final judgment in J.C. Skinner v. Elzadie Holcombe, Case No. CV-81-034(P), which awarded her the property in dispute. We disagree. At the outset, we note that this Court has held repeatedly that the findings made by a trial court carry with them a presumption of correctness under the ore tenus rule. As we stated in Bell v. Jackson, 530 So. 2d 42, 44 (Ala.1988):
In the present case, the trial judge heard the evidence presented and found that the true boundary line between Wynn's land and Sashinger's land was the fence. He held that Wynn had acquired title to the land inside and up to the fence by adverse *1067 possession. This finding is amply supported by credible evidence. At trial, virtually all surrounding landowners testified that the fence had been there as long as they could remember. Further, the community regarded the fence as the dividing line and the land inside the fence as belonging to Wynn. We hold that the trial judge's findings were supported by overwhelming evidence and were correct.
Wynn's claim of adverse possession is supported under either of two methods of adverse possession recognized by this Court. First, because Wynn had possessed the land for 23 years with the belief that he owned it, he clearly met the traditional 20-year possession period for prescriptive adverse possession. Moreover, the community, including Sashinger, regarded the land as his. Second, this Court has consistently held that where a case involves a boundary dispute between coterminous landowners, title may be acquired by an adverse possession period of only 10 years. In McNeil v. Hadden, 261 Ala. 691, 694, 76 So. 2d 160, 162 (1954), we stated:
One claiming by adverse possession must show, in addition to the fact that he has held the land for 10 years, all of the traditional adverse possession elements of open, hostile, notorious, continuous, and exclusive possession. Wynn has clearly satisfied the requirement of a 10-year holding period, as well as the traditional elements of adverse possession. Wynn's possession of the land inside the fence has continued for 23 years. Moreover, the use and maintenance of the fence and the land inside the fence had been so open and notorious that the surrounding landowners unequivocally recognized that the land belonged to Wynn. See Mardis v. Nichols, 393 So. 2d 976 (Ala. 1981); Carpenter v. Huffman, 294 Ala. 189, 314 So. 2d 65 (1975) (coterminous landowner may acquire title by the exercise of adverse possession for a period of 10 years); Johnson v. Brewington, 435 So. 2d 64 (Ala.1983) (boundary line disputes are hybrids subject to a unique set of requirements and only a 10-year period of possession); Lay v. Phillips, 276 Ala. 273, 161 So. 2d 477 (1964); Cambron v. Kirkland, 287 Ala. 531, 253 So. 2d 180 (1971). Thus, under either the traditional 20-year holding period or the hybrid "coterminous boundary" 10-year holding period, Wynn has acquired title to the land up to the fence line.
Sashinger argues that title acquired through adverse possession may be lost just as title to any other property may be lost. Specifically, she argues that the final judgment in J.C. Skinner v. Elzadie Holcombe divested Wynn of his title in the land inside of and up to the fence. While Mrs. Sashinger is correct that a final judgment may divest title, the final judgment in the Skinner case did not have that effect.
Under either theory of adverse possession applicable to this case, the traditional prescriptive theory or the "coterminous boundary" theory, Holcombe lost title to the land in question to Wynn by adverse possession before the court in Skinner purported to give it to Mrs. Sashinger. Applying the traditional prescriptive 20-year holding period, Wynn acquired title in 1983, and, applying the "coterminous boundary" 10-year holding period, Wynn acquired title in 1973. Therefore, as the land did not belong to Holcombe at the time of the final judgment in Skinner and was no longer part of the Holcombe tract, the circuit court's final judgment had no effect on Wynn's title.
For the reasons set out in this opinion, the judgment of the circuit court is affirmed.
AFFIRMED.
MADDOX and KENNEDY, JJ., concur.
HOUSTON, J., concurs specially.
STEAGALL, J., concurs in the result.
HOUSTON, Justice (concurring specially).
Ms. Sashinger contends that Wynn's title to the disputed property was divested out *1068 of him and into her by the 1981 court judgment in which she was awarded certain property, purportedly including the strip in dispute. There is nothing in the record that shows that Wynn was a party to the 1981 proceeding. Ms. Sashinger further contends that even if Wynn would have been an indispensable party to the 1981 proceeding, but was not made a party, the court proceeding divested him of any interest in the disputed strip of land. This is not correct. See Dominey v. Mathison, 292 Ala. 293, 293 So. 2d 472 (1974). | November 2, 1990 |
e0b1afd5-da5a-4da9-af27-638dd633f61b | Ex Parte Dale | 581 So. 2d 479 | N/A | Alabama | Alabama Supreme Court | 581 So. 2d 479 (1990)
Ex parte Emmett O. DALE.
Ex parte STATE BOARD OF ADJUSTMENT.
(Re STATE BOARD OF ADJUSTMENT and Emmett O. Dale, as administrator of the Estate of Patrick Frank Dale, deceased v. STATE DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION).
89-1238, 89-1254.
Supreme Court of Alabama.
November 16, 1990.
Rehearing Denied January 11, 1991.
Jere L. Beasley, J. Greg Allen and J. Clayton Crenshaw, Montgomery, for petitioners.
J. Fairley McDonald III of Copeland, Franco, Screws & Gill, Montgomery, for respondents.
PER CURIAM.
We issued the writ of certiorari to review the Court of Civil Appeals' construction of the statute governing the jurisdiction of the State Board of Adjustment, Ala.Code 1975, § 41-9-62.
Emmett O. Dale, as administrator of the estate of Patrick Frank Dale, filed a wrongful death suit against the State Department of Mental Health and Mental Retardation ("Mental Health") and three individual employees of Mental Health, alleging negligent and wanton treatment and release of Douglas Edward Griffin from Bryce Hospital, a mental health facility owned and operated by the State of Alabama. The trial court dismissed Mental Health on the ground of state immunity, pursuant to Article 1, § 14, Constitution of Alabama 1901. A jury returned verdicts against the three individual employees, but this Court reversed the judgment on those verdicts, finding that those defendants were "entitled to substantive immunity as a matter of law, because they were engaged in the exercise of a discretionary function at the time of Griffin's admission *480 and discharge." Barnes v. Dale, 530 So. 2d 770, 784 (Ala.1988). After the decision in Barnes, Dale filed a claim with the State Board of Adjustment against Mental Health based on the wrongful death of his son and on a claimed breach of a settlement agreement entered into between Dale and Mental Health on behalf of the three individual employees. The Board of Adjustment awarded Dale $100,000.
Mental Health petitioned the Montgomery Circuit Court for a writ of common law certiorari, alleging that the Board of Adjustment was without jurisdiction to entertain the claim. The trial court granted the petition, holding that the Board of Adjustment had exceeded its jurisdiction and ordering the Board of Adjustment to vacate its order. The Court of Civil Appeals, in a split decision, 581 So. 2d 476, affirmed the trial court's judgment, holding that the claim before the Board of Adjustment, although fashioned as a claim against the State, was not within the jurisdiction of the Board of Adjustment, because the claim before the Board of Adjustment involved the same subject matter as that dealt with in Barnes, supra. The Court of Civil Appeals, finding that the wrongful death claim was the basis of the Board of Adjustment's award, also held that there was no merit to the contention that the trial court erred in considering the breach of contract claim.
We disagree with that portion of the Court of Civil Appeals' opinion that holds that the Board of Adjustment acted beyond its jurisdiction. Ala.Code 1975, § 41-9-62, states, in pertinent part:
In Hawkins v. Board of Adjustment, 242 Ala. 547, 548, 7 So. 2d 775, 776 (1942), this Court stated:
(Citations omitted, emphasis added.)
This Court followed Hawkins recently in Ex parte Houston County Bd. of Educ., 562 So. 2d 513 (Ala.1990), stating:
562 So. 2d at 514 (citations omitted).
We cannot say that the Board of Adjustment exceeded its jurisdiction merely because the claim before it involved the same subject matter as the claim against the three individual employees. Dale's original claim against Mental Health was dismissed on the ground of state immunity; therefore, the Board of Adjustment, in exercising jurisdiction over Dale's claim against the State, acted within the confines set by the legislature when it adopted the statute.
We, therefore, reverse that part of the judgment holding that the Board of Adjustment acted in excess of its jurisdiction, and we remand this cause for action consistent with this opinion.
REVERSED AND REMANDED.
*481 HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | November 16, 1990 |
c8e26a43-e107-4234-ad63-d9e9b8be314c | Shadrick v. Johnston | 571 So. 2d 1008 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1008 (1990)
Billy P. SHADRICK and Oren J. Heffner
v.
S. David JOHNSTON, et al.
89-476.
Supreme Court of Alabama.
September 7, 1990.
As Modified on Denial of Rehearing November 9, 1990.
*1009 Thomas P. Willingham of Huie, Fernambucq & Stewart, Birmingham, for appellants.
Gary C. Huckaby and G. Rick Hall of Bradley, Arant, Rose & White, Huntsville, for appellees.
ALMON, Justice.
This appeal is from a summary judgment for the defendants in an action arising from a sale of a corporation and a subsequent settlement agreement. The question is whether the settlement agreement extinguished the sellers' duty to defend an action against the corporation regarding a debt allegedly incurred before the sale or, at least, whether the agreement was ambiguous so as to make the duty to defend that action a question of fact. When the sellers discontinued their defense of that action, the purchasers brought this action, alleging breach of contract and fraud.
This action was filed on May 5, 1989, by Billy P. Shadrick and Oren J. Heffner ("Purchasers") against S. David Johnston, Gary D. Joyce, and Danny L. Wiginton ("Sellers"). The complaint alleged that on December 31, 1984, the parties had entered into a contract for the sale of Dalcor Properties, Inc.,[1] and that the contract "required the defendants to indemnify plaintiffs for any and all liabilities of the corporation which were owed by the corporation prior to the date of its purchase by the plaintiffs [and] to hold plaintiffs (purchasers) harmless from any lawsuits that resulted from debts which were owed by the corporation, prior to the date of its sale to the plaintiffs." The complaint recited that, on February 4, 1986, Dalcor had been named as a defendant in an action filed by Jefferson Title Corporation "as a result of debts allegedly owed to Jefferson Title by Dalcor for services performed by Jefferson Title, prior to the date of the purchase of Dalcor by the plaintiffs." Finally, the Purchasers alleged that the sellers had refused to provide legal representation in the Jefferson Title action or to indemnify the purchasers for any judgment that might be entered.
The Purchasers attached portions of the sale contract and the Jefferson Title complaint as exhibits to their complaint. The first count of the complaint alleged that the Sellers had breached the sale contract and thereby had caused the Purchasers to incur expenses to hire an attorney and to incur other damages. The second count alleged that the Sellers had fraudulently misrepresented that they would indemnify the Purchasers for and hold them harmless from "any liabilities accrued by" Dalcor prior to the date of the sale. The third count alleged that the Sellers had fraudulently misrepresented in the sale contract that they had no knowledge of any undisclosed liabilities of Dalcor when they had knowledge of *1010 the claim by Jefferson Title but did not disclose it.
The Sellers filed an answer denying the material averments of the complaint and raising affirmative defenses of release, accord and satisfaction, and the statute of limitations. They then filed a motion for summary judgment supported by the affidavit of Gary D. Joyce reciting briefly that, after the sale of Dalcor, disagreements had arisen between the parties and that, in December 1986, they had executed a settlement agreement, which, according to the affidavit, "represents the understanding of all the parties in order to settle the disputes between the parties to this litigation arising under the original Sales Agreement of December 31, 1984." Copies of the sale contract and the settlement agreement were attached to Joyce's affidavit.
The Purchasers responded with affidavits by Shadrick and Gaither S. Walser, the Purchasers' attorney for the negotiations leading to the execution of both the sale contract and the settlement agreement. They both stated the same facts, taken here from Shadrick's affidavit:
Thus, the motion for summary judgment was supported only by the documents themselves and by Joyce's statement that the settlement agreement "represents the understanding of all the parties in order to settle the disputes between the parties." The motion was opposed by the statements just quoted, by the documents as interpreted by the Purchasers, and by the Jefferson Title complaint. We therefore will quote the pertinent portions of the sale contract and the settlement agreement.
Section one of the contract, "Sellers' Representations and Warranties," included representations that the Sellers owned all of the outstanding stock, that there were no impediments on Dalcor's power to conduct business except for three legal actions (as to which the parties make no issue here), and that Dalcor would continue to operate its business in the normal manner until the closing of the sale. The following paragraphs "I" and "L" of section one are pertinent to this dispute:
The transfer of ownership took place shortly after the execution of the contract.
According to Shadrick's affidavit, Dalcor is "a general partner of various partnerships which owned apartment complexes in the Huntsville, Alabama, area." From the face of the settlement agreement, it appears that the principal dispute arose from the Purchasers' contention that the Sellers had misrepresented Dalcor's management fees from some of the properties listed in the sale contract. The settlement agreement included the following language:
Almost two years after the settlement agreement, on November 14, 1988, the Sellers withdrew their defense of the Jefferson Title action and allegedly refused to indemnify the Purchasers for any judgment that might be entered in that action. The Purchasers brought this action on May 5, 1989.
The language of paragraph seven appears to be a complete discharge of the Sellers from all further liability under the sale contract, but the Purchasers argue that the exception at the beginning of that paragraph includes the pending claim by Jefferson Title. Paragraph seven discharges the purchasers "[e]xcept as expressly described in ... [the contract] dated December 31, 1984, for the sale of Dalcor Properties, Inc." The Purchasers claim that this exception includes the provision in paragraph I of the sale contract, whereby the Sellers agreed to transfer the corporation with enough cash on hand to pay all accrued liabilities, to advance such sums as might be needed if the cash on hand was insufficient, and to hold the Purchasers harmless from any such liabilities. They also argue that the Jefferson Title claim represents such an accrued liability and, thus, was excepted from the settlement agreement.
The Sellers respond by saying that the Purchasers did not offer any evidence in opposition to the summary judgment motion tending to show that the accrued liabilities, even including the Jefferson Title action, exceeded the cash on hand at closing. The initial burden on a summary judgment motion, however, is on the movant. Rule 56(e), Ala.R.Civ.P., reads in part: "When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading." (Emphasis added.) The Sellers never offered any evidence tending to show that they conveyed Dalcor with enough cash on hand to satisfy all accrued liabilities, so the Purchasers had no burden to negate that fact in order to defeat the summary judgment motion.
In fact, the Sellers make the following statement in their brief: "Of course, it is undisputed that the Sellers initially provided indemnity and a defense as to the Jefferson Title claim, and they had no obligation to do so absent an accrued liability, i.e., a valid debt." Thus, the Sellers virtually admit that the Jefferson Title claim was an accrued liability within the meaning of paragraph I of the sale contract and rest their defense principally upon the release language in the settlement agreement. They argue that the settlement agreement represented the outcome of a complete negotiation of the disputes, obligations, and rights between them and the Purchasers; that they agreed, among other things, to delay for two years payment of $300,000 of the consideration for the sale; and that the Jefferson Title claim was included in that settlement. They argue that all the representations and warranties in the sale contract, including those in paragraph I, were explicitly and unambiguously discharged by the settlement agreement.
The pertinent language of the settlement agreement is a release. Releases must be given effect according to the intentions of the parties. Ala.Code 1975, § 12-21-109.
Williams v. Nolin, 484 So. 2d 428, 429 (Ala. 1986) (citations omitted). Williams cites most of the principles stated in the above quotation to Mass Appraisal Services, Inc. v. Carmichael, 404 So. 2d 666 (Ala.1981).
The release language in paragraph seven of the settlement agreement is facially ambiguous. It releases all claims arising out of the sale contract "except as expressly described" in the sale contract. The meaning of that exception is unclear, because the sale contract obviously would not have described any exceptions to a then-uncontemplated future release. Paragraph seven cannot have excepted every obligation under the sale contract, because such an exception would swallow the release. Even so, the Purchasers are entitled to insist that the exception has some meaning, that it is not mere surplusage. The ongoing Jefferson Title action, which is not mentioned in the settlement agreement, is a perfect candidate for an obligation intended to be included in the exception, as an accrued liability for which the Sellers would hold the Purchasers harmless as "expressly described" in the sale contract. However, resolution of that dispute is not appropriate on a summary judgment motion. "[O]nce the court determines that an instrument is ambiguous or uncertain in any respect, it becomes a question for the factfinder to determine the true meaning of the contract." Rivers v. Oakwood College, 442 So. 2d 74, 76 (Ala.1983).
The existence of the ambiguity is further shown by the fact that the Sellers did not withdraw from their defense of the Jefferson Title action until nearly two years after the settlement agreement was executed. That fact would support a conclusion that the release was latently ambiguous even if it were not patently ambiguous.
The Sellers argue that this action is barred by the two-year limitations period of paragraph L of the sale contract. That argument might have merit if the Sellers had initially denied any liability for the Jefferson Title claim when it was filed in February 1986; in such a situation, the Purchasers might have been obligated under paragraph L to assert their claim by December 31, 1986. However, paragraph L provides no bar in this situation, for two reasons. First, the Purchasers had no claim to assert, or at least no cause of action, so long as the Sellers acknowledged their duty to defend. The "accrued liability" was asserted against the Sellers within the two-year period of paragraph L, and they undertook to hold the Purchasers harmless from the claim that it was an accrued liability, whether by defeating the claim or by paying any judgment.
Second, the Sellers cannot now invoke the limitations period of paragraph L, because of the principle that one who induces an injured party not to file a claim within a period of limitations cannot, when the claim is filed after the expiration of the period, invoke the bar imposed thereby. To be estopped from raising a statute of limitations, a defendant must have affirmatively induced the plaintiff to delay bringing the action. City of Birmingham v. Cochrane Roofing & Metal Co., 547 So. 2d 1159 (Ala. 1989); Sokol v. Bruno's, Inc., 527 So. 2d 1245 (Ala.1988); Arkel Land Co. v. Cagle, 445 So. 2d 858 (Ala.1983). This action was brought well within the six-year statutory limitations period of Ala.Code 1975, § 6-2-34(4), for actions on contracts. The Sellers' undertaking to defend the Jefferson Title claim estops them from now invoking the contract's two-year limitations period.
The above discussion relates principally to the Purchasers' claim for breach of contract. Before turning to the two fraud claims stated in the complaint, we note that the Purchasers argue that the Sellers fraudulently induced them to sign the settlement agreement. The Sellers respond by arguing that the Purchasers did not plead such a claim and so cannot argue it now. While we agree that the Purchasers have stated no affirmative claim for relief based on such a fraud, we note that the argument is made principally to defeat the Sellers' affirmative defense. No pleading in response to the answer raising that defense was required unless specifically ordered *1014 by the trial court. Rule 7(a), Ala.R. Civ.P. In fact, the affidavits submitted by the Purchasers sufficiently raised this matter in reply to the affirmative defense. Because we do not hinge our reversal on this argument, but rather on the ambiguity of the settlement agreement, we make no comment on the Sellers' argument that a party cannot avoid the effect of a release by alleging fraud in the inducement unless he offers to return the consideration for the release. See, e.g., Taylor v. Dorough, 547 So. 2d 536 (Ala.1989).
We now turn to the two fraud claims: that the promise to hold the Purchasers harmless from any accrued liabilities was fraudulently made, and that the statement in paragraph I that they had no knowledge of any undisclosed liability was a misrepresentation because of their failure to disclose the existence of the Jefferson Title claim.
The Sellers argue that summary judgment on count two, the first fraud claim, was appropriate because, they argue, the materials submitted on the summary judgment motion tended to show that they, at the time of making the promise to hold the Purchasers harmless, intended to keep that promise, and because the Purchasers did not introduce any evidence to the contrary. A fraud action based on a promise to perform an act in the future requires a showing that the promisor, at the time of making the promise, intended not to perform it. Reynolds v. Morton, 534 So. 2d 1052 (Ala.1988); Green Tree Acceptance, Inc. v. Doan, 529 So. 2d 201 (Ala.1988). We agree that the defense of the Jefferson Title claim for two years and nine months does tend to show that the Sellers intended to hold the Purchasers harmless at the time they promised to do so. The Sellers' showing on the summary judgment motion concentrated exclusively on their position that the settlement agreement barred all the Purchasers' claims; they made no attempt to support a summary judgment on the basis now alleged. Because we disagree with the implicit holding that the settlement agreement bars all three claims, and because the Purchasers have not had an adequate opportunity to oppose the basis for summary judgment now asserted, we reverse the summary judgment on count two for further proceedings on that claim.
The Sellers argue that summary judgment was also appropriate on count three, the second fraud claim, because, they say, the Purchasers were made aware of the Jefferson Title claim on or about February 4, 1986. A fraud claim based on the alleged misrepresentation that the Sellers were not aware of any unstated accrued liabilities could be barred after the expiration of two years from that date under the limitations period of Ala.Code 1975, § 6-2-38, unless the Purchasers can come within the delayed discovery provision of § 6-2-3. The Purchasers submitted affidavits stating that they were not aware of the alleged misrepresentation concerning the Jefferson Title claim until the Sellers stopped defending that action in November 1988.
The Sellers respond by saying that the summons of the Jefferson Title action was directed to Dalcor Properties, Inc., in February 1986, well after the Purchasers had taken over the ownership of Dalcor. However, that summons was addressed to Dalcor at "55 Central Bank Bldg., Huntsville, AL 35801." Exhibits to the settlement agreement include letters typed on the stationery of an accounting firm with an address of "100 Central Bank Building, Huntsville, Alabama 35801." That stationery lists all three of the Sellers as being C.P.A.'s "of counsel" to the firm. The Purchasers are residents of North Carolina. There is no evidence in the record indicating that the Purchasers had actual knowledge of the Jefferson Title action contrary to their affidavits, and the indirect evidence by way of the summons tends at least as much to show that the Sellers may have been immediately notified of the action as it does to show that the Purchasers received the summons and complaint and forwarded them to the Sellers.
Thus, the summary judgment is reversed. We note that any construction of the settlement agreement made in an effort *1015 to resolve the ambiguties would presumably be governed by the following rule recently adopted by this Court:
Western Sling & Cable Co. v. Hamilton, 545 So. 2d 29, 31 (Ala.1989).
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
ALMON, Justice.
OPINION MODIFIED; APPLICATION FOR REHEARING OVERRULED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] The complaint also made averments concerning the sale of Southern Housing Partnerships, Inc., a wholly owned subsidiary of Dalcor. Because those averments simply repeat the ones regarding Dalcor, we omit them for simplicity's sake.
[2] The settlement agreement states that, pursuant to the contract of sale, the Buyers had executed a promissory note for $4,000,000.
[3] The August 1984 contract for the sale of Dalcor Management is not in the record before us, and, although there are references in the December 1984 contract to an August contract for the sale of Dalcor Management, there is no clear explanation in the record of the relationship between those two sale contracts. | November 9, 1990 |
992c5c01-1c1d-4f78-ba0b-2419560e3f7a | Barnes v. George | 569 So. 2d 382 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 382 (1990)
W. Rankin BARNES and Dorothy Y. Barnes
v.
Ben F. GEORGE, Jr., and Ann Branch.
89-526.
Supreme Court of Alabama.
September 28, 1990.
*383 C.S. Chiepalich, Mobile, for appellants.
Mary Beth Mantiply, Mobile, for appellees.
KENNEDY, Justice.
This is an appeal from the trial court's grant of a new trial pursuant to Rule 60(b)(2), Alabama Rules of Civil Procedure. We affirm.
The plaintiffs, Rankin and Dorothy Barnes, owned a pet chow dog named Brutus. On September 10, 1987, Mrs. Barnes took the dog to the veterinary clinic owned and operated by the defendants, Dr. Ann Branch and Dr. Ben F. George, Jr. The Barneses alleged that while their pet was at the clinic, Dr. George injured the dog by kicking him. Brutus died the following day. The Barneses sued for damages based on the death of the dog.
At trial, Marsha Brown testified for the plaintiffs. Ms. Brown was an employee of the Saraland Veterinary Clinic, owned by the defendants. The defendants presented testimony that contradicted Ms. Brown's testimony. The case was submitted to the jury on counts alleging an intentional trespass and a wanton breach of a bailment contract. On May 18, 1989, the jury returned a verdict in favor of the plaintiffs in the amount of $25,000.
The defendants filed a Rule 50(b), A.R. Civ.P., motion for a judgment notwithstanding the verdict and, in the alternative, a Rule 59, A.R.Civ.P., motion for a new trial or remittitur, on June 1, 1989. On June 28, 1989, the defendants filed an amendment to the motions made on June 1, 1989. The basis for amending the motion was newly discovered evidence. The newly discovered evidence concerned prior criminal convictions of Ms. Brown, who was the main witness for the plaintiffs.
On July 21, 1989, an evidentiary hearing was held to determine whether a new trial should be granted. At the hearing, the judge allowed the defendants to orally amend the style of the motion. The defendants amended the Rule 59 motion for a new trial to a Rule 60(b)(2) motion for a new trial. The plaintiffs objected to the amendment. In support of their objection, the plaintiffs stated that the defendants had originally filed a Rule 59 motion, which allows 30 days to raise all issues for post-judgment relief. The plaintiffs argued that the defendants did not raise the issue of newly discovered evidence until well after the expiration of 30 days from the date of the judgment. Despite the objection, the judge allowed the amendment. Subsequently, the judge granted the motion for a new trial. On August 18, 1989, the plaintiffs filed a motion to clarify the ruling from the July 21, 1989, hearing. The judge issued an order to clarify the ruling. In the clarified order, the judge denied the defendants' Rule 59 motion for a new trial, but granted the defendants' Rule 60(b)(2) motion for a new trial based on newly discovered evidence. The plaintiffs did not object to the granting of the new trial and even drew up the order for the judge's signature.
A new trial was held on November 27, 1989. The jury returned a verdict for the plaintiffs in the amount of $500.
On appeal, the plaintiffs contend that following the first trial the judge improperly allowed the defendants to amend the style of their motion for a new trial.
At the outset, we note that the defendants have timely filed this appeal and that the case is properly before this Court. The granting of a motion pursuant to Rule 60(b) is generally interlocutory and not appealable. Fisher v. Bush, 377 So. 2d 968 (Ala.1979). This appeal is not taken from the granting of the Rule 60(b) motion, but from the judgment because the order granting the motion was interlocutory. See Hobbs v. Hobbs, 423 So. 2d 878 (Ala.Civ. App.1982). The trial court granted the Rule 60(b)(2) motion. After a final judgment was rendered in a second trial, the plaintiffs appealed, but raised as their only issue the prior action of the trial court. The plaintiffs' appeal followed the correct appellate procedure, and the issue of the amendment of the style of the motion is properly before the court. See Nolan v. Nolan, 429 So. 2d 596 (Ala.Civ.App.1982); Nunn v. Stone, 356 So. 2d 1212 (Ala.Civ. App.1978).
*384 Rule 59 allows 30 days to file a new trial motion raising all grounds for post-judgment relief, including newly discovered evidence. A Rule 60 motion for a new trial may be filed within four months after the final judgment, or, in certain cases, within a "reasonable time" after the date of a final judgment, which may exceed four months. The plaintiffs argue that the time period prescribed by Rule 59 would apply to the defendants and that the defendants did not raise the issue of newly discovered evidence within the 30 days allowed by that rule; therefore, they argue that the grant of a new trial constituted error.
We note that the defendants filed a motion for JNOV or a new trial pursuant to Rule 59, A.R.Civ.P., on June 1, 1989. This motion was properly filed within 30 days from the date the judgment was entered. The trial court allowed the defendants to amend the Rule 59 motion, adding the ground of newly discovered evidence, on June 28, 1989. As this Court stated in Alabama Farm Bureau Mut. Cas. Ins. Co. v. Boswell, 430 So. 2d 426, 428 (Ala. 1983), "the trial court has discretion to allow an amendment to a motion for a new trial to state an additional ground after thirty days from the final judgment, if the original motion was timely filed and is still before the court when the amendment is offered." In the present case, the court was clearly within its authority to allow the defendants to include the newly discovered evidence grounds in the Rule 59 motion for a new trial. Therefore, because the amendment under Rule 59 was timely filed, the plaintiffs were not prejudiced when the court allowed the style of the Rule 59 motion to be amended to indicate a Rule 60(b)(2) motion for a new trial.
We affirm.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, J., dissents.
JONES, Justice (dissenting).
Because I would dismiss the appeal on the ground that Ala.Code 1975, § 12-22-10, requires that the appeal be taken from the judgment granting the defendant's motion for a new trial, and not after the judgment in the second trial, I respectfully dissent; and because I dissent on this procedural ground, I would not reach the merits of the appeal.
If we assume that the original post-trial motion for a new trial, pursuant to Rule 59, A.R.Civ.P., was amendable to include the "newly discovered evidence" ground, it is beyond debate that § 12-22-10 (authorizing an appeal from an "interlocutory order granting a new trial") is applicable; thus, this appeal is untimely. However, for the purposes of my dissent, I will assume that the trial court properly redesignated the post-trial motion, on which he granted a new trial, as a Rule 60(b) motion.
At the outset, it should be observed that the question is not whether the granting of a new trial is an interlocutory order, for, indeed, all orders granting new trials are interlocutory. Rather, the question is whether § 12-22-10 is equally applicable to a "new trial" order, whether it is rendered pursuant to Rule 59 or pursuant to Rule 60, where the order is rendered after a trial of fact has been held. I find nothing in our rules of procedure (civil or appellate), either in their literal language or in the spirit of the rules, that restricts the application of § 12-22-10 to Rule 59 "new trial" orders. To be sure, almost from the inception of this statute, our case law has differentiated between a "new trial" order following a fact trial and an order granting a trial after an initial summary disposition without a trial (e.g., default judgment). Baggett v. Alabama Chemical Co., 156 Ala. 637, 47 So. 102 (1908); Mobile Light & R.R. v. Hansen, 135 Ala. 284, 33 So. 664 (1903); and Marx v. Barbour Plumbing & Elec. Co., 10 Ala.App. 404, 64 So. 645 (1914). The rationale for this distinction is both obvious and sound, and it should be maintained: Until there has first been a trial, the statute authorizing an appeal from the granting of a "new trial" is simply not invoked and the interlocutory nature of such summary dispositions will not permit appellate review.
*385 Here, there has been a trial. After trial and in response to a post-trial motion, the trial court granted a new trial. Not only does § 12-22-10 permit an appeal at this point, without waiting until after the second trial, but, in my opinion, because an appeal is authorized from such an interlocutory order, the nonprevailing party must exercise the right of appeal or, by failing to do so, waive any alleged error in the original trial and post-trial proceedings.
Although, in the present case, if the appellate court affirms the judgment (as indeed it does), the application of the right-of-appeal statute would nonetheless result in a second trial. In the typical case, an earlier appeal may be dispositive of the case and totally avoid a second trial. Indeed, this is the spirit of the statutory right of appeal from the interlocutory order granting a new trial. The rejection of this "judicial economy" tool is incompatible with the philosophy of the current court to foster time standards and caseload reduction programs. For an excellent example of the futility of requiring a second trial before permitting appellate review of alleged error in the first trial, see Lowe v. General Motors Corp., 624 F.2d 1373 (5th Cir.1980). (There is no federal statute authorizing an appeal from the granting of a new trial, and, by its opinion today this Court rejects the Alabama statute's application to a Rule 60 new trial, even in the context of an initial full trial on the facts.) | September 28, 1990 |
e8f4e4fc-b7fd-4dd8-8289-5fd421516a91 | Harrell v. State | 571 So. 2d 1270 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1270 (1990)
Ex parte State of Alabama.
(Re Joe Louis HARRELL
v.
STATE of Alabama).
89-1472.
Supreme Court of Alabama.
November 30, 1990.
*1271 Don Siegelman, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for petitioner.
Paul D. Brown, Mobile, for respondent.
HOUSTON, Justice.
This is the second time that this case has been before this Court on certiorari review. The defendant, Joe Louis Harrell, was convicted in Mobile Circuit Court of possession of cocaine and other offenses. Harrell challenged his conviction in the Court of Criminal Appeals, based upon the rule of law stated in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The Court of Criminal Appeals remanded the case with instructions for the trial court to determine whether the guidelines of Batson, as interpreted by this Court in Ex parte Branch, 526 So. 2d 609 (Ala.1987), had been followed. See Harrell v. State, 555 So. 2d 257 (Ala.Crim.App.1989). The State petitioned for a writ of certiorari, which we granted pursuant to Rule 39, A.R.App.P., and we affirmed the judgment remanding the case for a Batson hearing. See Harrell v. State, 555 So. 2d 263 (Ala. 1989).
On remand, the trial court determined that Harrell had made a prima facie showing of purposeful discrimination on the part of the prosecutor in selecting the jury and that the prosecutor had failed to present race-neutral reasons for challenging 5 of the 10 black jurors on the venire. On return to remand, the Court of Criminal Appeals vacated Harrell's conviction and remanded the case for a new trial. 571 So. 2d 1269. The case is once again before this Court on certiorari review, pursuant to a petition filed by the State in which it argues that the following undisputed facts established, as a matter of law, that the prosecutor did not engage in purposeful discrimination when she struck the blacks from the jury venire: 1) The lawfully established venire consisted of 28 people, of whom 10 (35.7%) were black; 2) the prosecutor used 5 of her 8 peremptory challenges to strike blacks and the remaining 3 to strike whites; 3) defense counsel used all 8 of his peremptory challenges to strike whites from the venire; and 4) the jury that was ultimately empanelled consisted of 5 blacks, amounting to 41.7% of the jury (a greater percentage than was on the lawfully established venire), and 7 whites.
If these were the only facts Harrell relied on to raise an inference of discrimination, we would agree with the State and reverse the judgment of the Court of Criminal Appeals. As we explained in Harrell, supra, a defendant cannot prove a prima facie case of purposeful discrimination solely from the fact that the prosecutor struck one or more blacks from his jury. A defendant must offer some evidence in addition to the striking of blacks that would raise an inference of discrimination. When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created. Logically, if statistical evidence may be used to establish a prima facie case of discrimination, by showing a discriminatory impact, Harrell, 555 So. 2d 267, citing United *1272 States v. David, 803 F.2d 1567, 1571 (11th Cir.1986), then it should also be available to show the absence of a discriminatory purpose.
However, in addition to the foregoing, the record shows that the five blacks who were struck from the venire shared only one characteristictheir membership in the black raceand that in all other respects they were as heterogeneous a group as the community as a whole. For instance, three of the five blacks struck were men and two were women. Two of the men were employed, one as a helper at Moyer Allied and one as a mechanic at Auto Savings Tire Company. One of the women was a housewife, and the other was employed as a social service aide. The fact that the blacks struck include both men and women and that they were of a variety of ages, occupations, and social or economic conditions, indicates that race may have been the deciding factor. Harrell, supra, at 266. Furthermore, the prosecutor engaged in a rather limited voir dire, asking only whether any of the members of the venire had been the victim of a crime; whether any of them, or anyone in their immediate family or close circle of friends, had been charged with a crime; whether any of them had any religious beliefs that would effectively prevent them from sitting in judgment on Harrell; and whether any member of the venire thought that possession of marijuana or cocaine should not be a crime. The record fails to show that any of the five blacks responded to the prosecutor's questions in such a way as to give any insight into why they were stricken. The extent of the prosecutor's questions during voir dire and the responses of the venire members to those questions are also relevant in determining whether the prosecutor engaged in purposeful discrimination. Harrell, supra, at 266. Finally, we take judicial notice of Jones v. Davis, 906 F.2d 552 (11th Cir.1990), in which the United States Court of Appeals, Eleventh Circuit, reversed the district court's denial of habeas corpus relief for Jones, noting that Jones had established a prima facie case of discrimination under Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), on the part of the Mobile County district attorney's office and that that prima facie case had not been rebutted. The past conduct of the prosecutor in using peremptory challenges to strike all blacks from the jury venire is an important factor to be considered in determining whether an inference of discrimination exists. Harrell, supra, at 266. These additional facts, when considered in light of the fact that the prosecutor used five of her eight peremptory challenges to strike blacks from the venire, were sufficient to raise an inference of discrimination in the present case. See Harrell, supra, at 266-67, where this Court, quoting Ex parte Branch, discussed in detail the types of evidence that would suffice to make out a prima facie case of purposeful discrimination. Due to the considerable deference that the trial court's determination was due, we cannot say that the Court of Criminal Appeals erred in vacating Harrell's conviction and in remanding the case for a new trial.
For the foregoing reasons, the writ is quashed as improvidently granted.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | November 30, 1990 |
7b051d35-5941-40ad-98cf-07cd5d75cd25 | Nix v. Henry C. Beck Co. | 572 So. 2d 1214 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1214 (1990)
D. Mark NIX, as Trustee for Bel Air Liquidating Trust, et al.
v.
HENRY C. BECK COMPANY.
89-1165.
Supreme Court of Alabama.
November 30, 1990.
*1215 William M. Lyon, Jr., and William S. McFadden of McFadden, Lyon, Willoughby & Rouse, Mobile, for appellants.
Patrick H. Sims of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, for appellee.
SHORES, Justice.
Plaintiff Nix appeals from a summary judgment in favor of defendant Henry C. Beck Company ("Beck") on Nix's claim of negligence. We affirm.
The facts in this case are not disputed. On January 27, 1966, Bel Air Corporation and Beck contracted for the construction of the Bel Air Mall in Mobile, Alabama, at the time the biggest shopping mall in Alabama. Pursuant to the contract, Beck was to install an automatic fire sprinkler system in the Mall. The Mall was completed in 1967. Problems with the sprinkler system arose and on February 5, 1973, Bel Air Corporation sued Beck, alleging a breach of contract and a failure to provide labor, materials, equipment and services necessary to install the sprinkler system correctly. Bel Air claimed $10,000 in damages, but the parties reached a settlement and signed the following release:
(C.R. 261-62.)
In February 1986, Bel Air Corporation discovered that Beck had used material containing asbestos as fireproofing during the original construction. Bel Air Corporation was negotiating a sale of the Mall at the time of this discovery, but the asbestos material had to be removed before a sale could take place and the Mall could be rendered safe for public use; the cost of the removal was approximately $1.5 million. The present action was filed on December *1216 17, 1987, and the trial court entered summary judgment for Beck on March 20, 1990, holding that the 1973 release barred this action.
Whether a release is ambiguous is a question of law for the trial court. Regional Health Services, Inc. v. Hale County Hospital Board, 565 So. 2d 109, 112 (Ala.1990), citing Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala.1983). In determining if the language of the release is unambiguous, a court must give the words of the release their ordinary meaning, Regional Health Services, Inc., supra, citing Food Services Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983), and the release must be given effect "according to its terms and the intentions of the parties thereto." Ala.Code 1975, § 12-21-109. The language used in the 1973 release is comprehensive concerning the claims sought to be released. Specifically, the release states:
(Emphasis added.) The language is clear and unambiguous. We must assume that the intent was to prevent the parties from asserting any claim or claims that might arise out of the January 27, 1966, contract. The release specifically refers to "the matters and things set forth and alleged in the complaint in that certain suit entitled Bel Air Corporation, a Corporation vs. Henry C. Beck Company, a Corporation," and states that one of the purposes of the release was to settle the then-pending lawsuit. Nevertheless, the following language from Alabama Power Co. v. Blount Brothers Corp., 445 So. 2d 250 (Ala.1984), is applicable in this case:
Id., at 252. The release in Alabama Power Co. contained the following language:
Id. at 251. The similarity of the language used in the release in this case compels a similar conclusion.
Nix argues that the release in question was intended to release Beck only from contract-related claims. We note the following language in Regional Health Services, Inc.; "With a general release, the parties obviously intended to release all claimscontract claims as well as tort claims.... If the parties had wanted to limit the release, they could have expressly reserved and excepted certain claims, including tort claims." 565 So. 2d at 114. The release between Bel Air and Beck was a general release and could have been limited if the parties so desired.[1]
The release pleaded in defense of this litigation was executed by the same parties who had settled a prior claim by executing this release. Thus, the question is: Did *1217 these two parties intend to release all claims between them growing out of the construction of Bel Air Mall? The issue in Pierce v. Orr, 540 So. 2d 1364, which discusses the construction of releases, was whether the parties to the release were to be held to have released all claims between the parties named in the release plus potential claims against third parties who were, or may have been, unknown at the time of the execution of the release. We held in Pierce that contracts of release are to be governed by the principle expressed in Ala. Code 1975, § 12-21-109i.e., that they are to be given effect "according to the intentions of the parties." 540 So. 2d at 1367. If the express provisions of a release are unambiguous, then, in accordance with contract principles generally, they will be taken as expressing the intent of the parties. If the terms of the release are ambiguous, then the intention of the parties is to be determined as a question of fact, and parol evidence is admissible on that question.
In opposition to Beck's motion for summary judgment, Nix filed an affidavit by the attorney who represented Bel Air Corporation in its 1966 action against Beck, and in that affidavit he stated that the release was not intended to be a bar against future tort claims relating to asbestos removal. In Alabama Power Co. we stated:
445 So. 2d at 253 (citation omitted) (emphasis added in Alabama Power Co.).
The affidavit was an attempt to vary the unambiguous terms of the release and was therefore not admissible.
Because solely a question of law was presented, the case was appropriate for summary judgment, and because the trial court decided the legal question correctly, its judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] The holding of this case, as it relates to the release of "claims," should be distinguished from holdings regarding releases that refer to "any and all persons," e.g., Pierce v. Orr, 540 So. 2d 1364 (Ala.1989). | November 30, 1990 |
932f6e54-6ca0-4d82-aa1a-95ea15b0468c | Transcall American v. Comtel-Birmingham | 571 So. 2d 1051 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1051 (1990)
TRANSCALL AMERICAN, INC.
v.
COMTEL-BIRMINGHAM, INC.
89-1373.
Supreme Court of Alabama.
October 26, 1990.
Joseph B. Mays, Jr., Patricia T. Mandt and Michael S. Denniston of Bradley, Arant, Rose & White, Birmingham, for appellant.
Richard Vincent of Vincent, Hasty & Arnold, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from the denial of a Rule 60(b)(6), A.R.Civ.P., motion for relief from a default judgment in the amount of $46,104.43. We affirm.
The record reveals that the plaintiff, Comtel-Birmingham, Inc., entered into a purchase agreement with Transcall American, Inc. ("Transcall"), whereby Transcall would purchase the assets of Comtel. Those assets included certain customer lists and provided that Transcall would pay Comtel a percentage of the revenues earned from the use of those lists during the period from September 1985 through May 1986. In 1988, Comtel filed suit against Transcall for an accounting and for payments to be made following the accounting "as the Court sees fit." After the complaint was filed, Transcall, choosing not to immediately hire an attorney to represent its interest in the case, attempted to negotiate with the attorney for Comtel. Transcall received a letter from that attorney in March 1988 that stated in pertinent part:
Transcall contends that it never received the promised 20-day notice prior to Comtel's motion for a default judgment and, therefore, that it was entitled to relief from that judgment.
The record indicates that following that letter, representatives of the two parties communicated for several months. On August 10, Comtel's attorney sent a letter that stated as follows:
Transcall, thereafter, provided Comtel with a letter purporting to contain an "accounting" of the amounts owed to Comtel. In that letter, dated August 18, Transcall's vice president stated:
In that same letter, Transcall sent a check in the amount of $6,859.46 to Comtel. Subsequently, Transcall received another letter from Comtel's attorney, dated October 11, 1988, which rejected the accounting provided in the August 18 letter and further stated:
No further response came from Transcall, and Comtel moved for a default judgment five months later.
Transcall, contending that it did not receive notice of the default judgment until more than four months after it was entered, filed a Rule 60(b) motion for relief from that judgment. The trial judge denied the motion, citing the four-month rule in 60(b)(1), (2), and (3).[1] No appeal was taken from the denial. Approximately four months later, Transcall filed another Rule 60(b) motion; however, that motion was specifically styled as a Rule 60(b)(6) motion. The motion was, in essence, the same motion that had been ruled on by the trial judge previously.
The sole issue in this case is whether the trial judge appropriately denied Transcall's second Rule 60(b) motion.
Douglas v. Capital City Church of the Nazarene, 443 So. 2d 917, 919 (Ala.1983). See also Leonard v. Leonard, 560 So. 2d 1080 (Ala.Civ.App.1990). In Leonard, the defendant filed a Rule 60(b) motion that was denied; thereafter, he filed a "motion for reconsideration" with the trial court wherein he offered other testimony. Refusing to consider anything Leonard offered in his "motion for reconsideration," the Court of Civil Appeals noted that "the denial of a Rule 60 motion is usually appealable and that a motion to reconsider cannot take the place of an appeal. Ex parte Dowling, 477 So. 2d 400 (Ala.1985)." Leonard, at 1083. In the present case, Transcall had already presented the same issues to the trial court in a Rule 60(b) motion that had been denied. Transcall chose not to appeal from that ruling and, instead, filed another Rule 60(b) motion several months later. We will not allow a subsequent Rule 60(b) motion to substitute for an appeal; to do so would only prolong litigation.
For the foregoing reasons, we hereby affirm the judgment of the trial court.
AFFIRMED.
MADDOX, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Transcall's motion was styled simply as a Rule 60(b) motion and not particularly as a Rule 60(b)(6) motion, nor, of course, as a Rule 60(b)(1), (2), or (3) motion. | October 26, 1990 |
b0358c7d-ab5c-4741-b178-ceba6bc1df38 | Ex Parte Lewis | 571 So. 2d 1069 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1069 (1990)
Ex parte Lorraine S. LEWIS, et al.
(Re GOVERNMENT EMPLOYEES INSURANCE COMPANY v. Dale L. STILES, et al).
89-1181.
Supreme Court of Alabama.
November 2, 1990.
*1070 Edward L. Hardin, Jr. of Hardin, Taber & Tucker, Birmingham, for petitioners.
Duncan B. Blair and M. Beth O'Neill of Lange, Simpson, Robinson & Somerville, Birmingham, for respondent.
SHORES, Justice.
This Court's opinion of September 28, 1990, is withdrawn and the following is substituted therefor:
The factual background and the proceedings in the trial court out of which this petition for writ of mandamus arose are set out in Justice Maddox's dissenting opinion. Although we agree with Justice Maddox that the trial court erred in dismissing the claim of Blue Cross and Blue Shield of Alabama and erred in its determination that 29 U.S.C. § 1132(a)(3)(B)(ii) places in the federal district court exclusive jurisdiction to determine that claim, the judgment of dismissal was not challenged in this Court. Despite its representations to the contrary, Blue Cross did not file a counter-petition for writ of mandamus in this Court. Therefore, the only issue before us is whether the petitioners are entitled to the relief prayed for, viz., an order directing the trial court to release the withheld funds. We hold that they are, and we issue the writ of mandamus.
The petition for writ of mandamus is granted because the order dismissing Blue Cross's claim was not challenged. That claim is now pending in the United States District Court for the Northern District of Alabama for appropriate disposition.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; WRIT GRANTED.
HORNSBY, C.J., and JONES, ADAMS and HOUSTON, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
The majority has granted the writ of mandamus in this case and has ordered the trial judge to disburse funds deposited in an interpleader action, even though there remains in the case the question of whether the trial judge was correct in dismissing the health insurance carrier's subrogation claim on the ground that the federal courts had exclusive jurisdiction of the subrogation claim because of the determination that the welfare benefit plan was one regulated by the Employees Retirement Income Security Act of 1974 ("ERISA").
The majority, although agreeing with me "that the trial court erred in dismissing the claim of Blue Cross," and in determining "that 29 U.S.C. § 1132(a)(3)(B)(ii) places in the federal district court exclusive jurisdiction to determine that claim," 571 So. 2d at 1070, nevertheless orders the funds disbursed to the petitioners on the basis that "the judgment of dismissal was not challenged in this Court." 571 So. 2d at 1070.
I think that the majority errs in ordering that the interpleaded funds be disbursed, based on these reasons:
Specifically presented are these two questions: (1) Does a state trial judge have jurisdiction to order a portion of the interpleaded funds retained until the subrogation rights can be settled, and (2) Does the federal district court have exclusive jurisdiction of the health insurance carrier's claim because of specific provisions of ERISA?
The underlying interpleader proceeding was filed in the Circuit Court of Jefferson County by Government Employees Insurance Company (GEICO) to settle multiple claims against its insured based on injuries and damage arising out of an automobile accident.[1] GEICO joined as defendants to the interpleader action all parties who were damaged as a result of the accident, and also joined Blue Cross, the health insurance carrier that had paid hospital and medical bills for the Lewises. The petitioners here had previously made claims against GEICO's insured, those claims being based on the bodily injuries they suffered as a result of the automobile accident.[2]
Blue Cross's claim to the interpleaded funds, asserted in its answer to the interpleader complaint, and its answer to the Lewises's cross-claim, was based on its health benefits contract with the Lewises. Blue Cross claims that it was, and is, obligated to provide medical benefits to the Lewises and, in turn, was, and is, entitled to be subrogated to the Lewises' rights of action against those who caused the injuries for which the benefits were provided, which, in this case, would be the Lewises' rights against GEICO's insured. In addition to this contractual right of subrogation, Blue Cross's claim was based on its contractual right of first-money reimbursement from the Lewises, from any money recovered by the Lewises from those who caused the injury or condition for which Blue Cross provided medical benefits.
The terms of the Lewises' health benefits plan, under which Blue Cross claims it has subrogation/reimbursement rights, reads as follows:
GEICO interpleaded $300,000, the policy limit of its liability for this accident, to the clerk of the court. The court divided the hearing on the interpleader action into two parts: (1) the allocation of funds between the parties who suffered bodily injuries in the accident and J. William Lewis, and (2) the division of the funds allocated to the Lewises in the first part of the hearing *1072 between the Lewises and Blue Cross.[3]
After hearing evidence in the first phase of the hearing and finding that the settlement proposed by GEICO, the Lewises, and the other bodily-injured parties was in the best interest of the minors and the other parties, the Court allocated the interpleaded funds as follows:
Because none of the parties to the interpleader action disputed the amount of the funds allocated to the minors, who were the driver and passenger in the second car, the court made these allocations final and ordered the funds due them released. Because GEICO had paid its policy limits into the court, the court released GEICO's insured from any future liability to the parties named in the interpleader action for injuries resulting from the automobile accident.
In the second part of the hearing, the court considered the division between Blue Cross and the Lewises of the funds allocated to the Lewises. The Lewises subsequently filed a motion with the court in which they asked the court to dismiss Blue Cross's subrogation claim on the grounds that the court lacked jurisdiction over the claim under 29 U.S.C. §§ 1132(a)(3) and 1132(e)(1) (Sections 502(a)(3) and 502(e)(1) of ERISA).[4]
The court initially did not make a definitive ruling on the question of whether it had jurisdiction to settle the claims of Blue Cross and the Lewises to the remaining interpleaded funds, but rejected the argument of the Lewises that Blue Cross had failed to file a claim for a portion of the funds, and found that Blue Cross had asserted a claim for the funds in its answers to the complaint in the interpleader action and to the Lewises' cross-claim.
The Lewises then asserted that if Blue Cross had made a claim for the funds, its claim would be a matter exclusively within the jurisdiction of the federal courts under § 502(a)(3) of ERISA.
After considering the arguments of Blue Cross and the Lewises on the motion to dismiss, the court entered the following order:
Both the Lewises and Blue Cross filed motions to amend the May 2, 1990, order, but the court denied both motions to amend and ordered that the funds allocated to the Lewises be distributed to or retained in accordance with its order of May 2, 1990.
Blue Cross then filed an action in the United States District Court for the Northern District of Alabama, in which the Lewises have filed a counterclaim.[5] Petitioners subsequently filed this petition for a writ of mandamus. Blue Cross filed an answer and what it described as a "counter-petition."[6]
In support of their petition, the Lewises argue that the state trial court's retention of a disputed portion of the interpleaded funds constitutes a prejudgment attachment in violation of Ala.Code 1975, § 6-6-30 et seq. They also continue to argue, as they did successfully to the trial judge, that the state court did not have jurisdiction over the interpleaded funds and over Blue Cross's claim to a portion of the interpleaded funds, because of the provisions of ERISA.
The issue of the federal court's exclusive jurisdiction is squarely presented by the *1074 petition for writ of mandamus, the petitioners arguing in their latest brief the following:
Based upon all of these facts, and based on the fact that this court has held that petitioners are wrong on the "sole issue before this Court," have the petitioners shown that they have a clear legal right to have the trial court order all of the funds disbursed to the petitioners even though the issue of the exclusivity of the federal court's jurisdiction and the subrogation rights of Blue Cross have not yet been determined? Clearly not.
As stated earlier, this action was begun as an interpleader action, and until its dismissal from the action based upon a motion filed by petitioners, Blue Cross was a party to the proceeding and had actively pursued its claim there.
That interpleader actions are appropriate for the adjudication of conflicting claims to a fund, including claims of subrogation, is clear. Rule 22, A.R.Civ.P., is designed specifically for such situations involving conflicting and adverse claims. In International Underwriters/Brokers, Inc. v. Liao, 548 So. 2d 163 (Ala.1989), an insurer had interpleaded $25,000 in underinsured motorist insurance benefits due its insured, and named, along with others, its insured, Ms. Liao, International Underwriters, and Druid City Hospital as potential claimants. The decision in Liao is consistent with the holding in Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala.1988), where this Court, quoting from Wall v. Hodges, 465 So. 2d 359 (Ala.1984), said: "`Separate trials of the same issues and facts are a waste of time and money.'"
The majority, even though agreeing with me on what the petitioners call "the sole issue," the exclusiveness of the jurisdiction *1075 of the federal district court, says in support of the grant of mandamus that the jurisdictional issue is not presented because "the judgment of dismissal was not challenged in this Court." I recognize, of course, that the "counter-petition" for mandamus filed by Blue Cross could be considered insufficient to present the issue, but the burden is not on Blue Cross to show why the petitioners are not entitled to relief, it is upon petitioners to show why they are clearly entitled to the relief they seek. Petitioners, in my opinion, have not done that. They have not shown why they are entitled to the entire fund before Blue Cross's rights, if any, to the fund are determined.[7] The petitioner's argument, apparently accepted by the majority, is that Blue Cross should have appealed the order of the trial judge dismissing its subrogation claim. That argument has no legal merit, because the order of dismissal affected only Blue Cross's claim, which was only one claim in the interpleader action; therefore, it was not a final order from which an appeal would lie, unless it had been certified as provided for in Rule 54(b), A.R.Civ.P. Even the petitioners recognize that there has been no final order in the interpleader action, because they are using mandamus, which obviously would not be available if there was a right of appeal on their part.
Has there been a prejudgment attachment of funds as found by the majority? Clearly, there has not been. The funds were interpleaded funds, and no one disputes that Blue Cross has a right to have some court determine its rights under its contract. An attachment of funds involves the taking or seizure of funds belonging to a defendant and the depositing of the funds into the custody of the court in order to furnish security for a debt or for costs. An attachment is ancillary to a central action by which a plaintiff acquires a lien upon the property or effects of a defendant for satisfaction of a judgment that the plaintiff may obtain. See Jennings v. Wysong, 276 Ala. 692, 166 So. 2d 420 (1964). This Court has stated that the purpose of an attachment is to make the jurisdiction of the court in the main proceeding more effectual and to afford the plaintiff in the main action security for the satisfaction of the judgment he may obtain. Phillips v. Ash, 63 Ala. 414, 415 (1879); see also Allen Trucking Co. v. Adams, 56 Ala.App. 478, 323 So. 2d 367, cert. quashed, 295 Ala. 390, 323 So. 2d 373 (1975).
As I view it, the court, in the interpleader action, did not seize or attach funds belonging to the Lewises in order to secure a possible judgment for Blue Cross. The very purpose of an interpleader action is to bring all claimants to a fund into court in one action and determine who is entitled to the fund or to a portion of it. That is exactly what happened here. In this case, the court accepted the deposit of the insurance funds claimed by the defendants into the court and discharged GEICO from further claims by the claimants. Because the defendants did not dispute the amount of funds allocable to the driver of the second vehicle and to the passenger in that vehicle, the court made final the proposed allocation of funds to those parties and ordered the clerk to release and distribute the funds to them. As between the Lewises and Blue Cross, however, the dispute over the remainder of the interpleaded funds has not yet been resolved.
Petitioners apparently do not argue that the underlying interpleader action was not appropriate in this case, their main argument being that Blue Cross cannot assert this claim in state court, but must have it adjudicated in federal court, and that in the meantime, they get the entire fund, no matter what happens to Blue Cross's claim. Clearly, interpleader is an appropriate action in cases involving the various claims of parties to a fund in cases such as this. See International Underwriters/Brokers, Inc. v. Liao, supra, which involved claims by a hospital, an insurer claiming subrogation rights, and others.
*1076 Furthermore, the Rules of Civil Procedure specifically provide for the interpleader remedy in such cases. Rule 22, A.R. Civ.P., provides, in part:
(Emphasis added.)
Based on the provisions of this Rule, I am of the opinion that the court had the authority to earmark a portion of the funds over which a dispute still raged concerning the insureds and the insurer, and to reserve a decision on that issue until there was an adjudication.[8]
Until an appropriate court resolves the competing claims of Blue Cross and the Lewises to the remainder of the interpleaded funds, it is proper for the court to retain these funds, in my opinion, especially in this case, where the trial court's dismissal of Blue Cross's claim on the grounds stated was erroneous, and the court dismissed the claim because of an incorrect interpretation of the applicable law. Clearly, the retention by the court of the disputed portion of the interpleaded funds cannot be construed as an attachment of funds due to the Lewises, because there has been no determination about the correct division of the funds between Blue Cross and the Lewises. Until such a determination is made, the Lewises are not entitled to the funds, and there can be no attachment of property that does not belong to them. In view of that, I am convinced that the trial court had the right to decide that the funds should remain with the court until the rights of the parties to the funds can be determined. To do otherwise defeats the purpose of an interpleader action, and in this case, the order disbursing the funds seems especially unjust in that this Court does not agree with the very argument made by the petitioners in support of their petition.
Consequently, I would hold that the court has not attached funds due to the Lewises in violation of either Ala.Code 1975, § 6-6-30 et seq., or the Due Process Clause of the Fourteenth Amendment of the United States Constitution. On the contrary, this Court's order, which summarily disburses funds to one of several claimants to a fund before affording one of the parties its day in court, could itself have constitutional implications.
I now consider what the petitioners characterize as the "only issue presented" "whether the jurisdictional language of ERISA means what is says, namely, that `the district courts of the United States shall have exclusive jurisdiction of civil actions under this subchapter brought by ... a fiduciary.' 28 U.S.C. § 1132(e)(1)."[9] The Lewises make the same argument they made in the trial court when they challenged the court's jurisdiction to hear Blue Cross's subrogation claim in a motion to dismiss in which the Lewises stated that §§ 502(a)(3) and 502(e)(1) of ERISA vested exclusive jurisdiction over Blue Cross's claim in the federal courts, and, therefore, deprived the court of jurisdiction to hear the claims.
Does ERISA grant the federal district courts exclusive jurisdiction of subrogation claims such as that presented here? I think not, and on this issue the majority agrees with me.
ERISA § 502(a)(3) provides in pertinent part, as follows:
Blue Cross admits that ERISA § 502(e)(1)[10] provides that the United States district courts shall have exclusive jurisdiction of "civil actions under this title" brought by a participant, beneficiary, or fiduciary to obtain the relief available under § 502(a)(3), but Blue Cross argues that its claim to recover a portion of the interpleaded funds is not a "civil action" in itself, but is, instead, a claim made within the civil action brought by GEICO, that nothing in §§ 502(a)(3) and 502(e)(1) limited the court's jurisdiction over Blue Cross's claim in this action, and that the court was in error to conclude otherwise.
The question presented, of course, is whether Blue Cross's claim in the interpleader action is a "civil action" under the provisions of ERISA § 502(e)(1), i.e., 29 U.S.C.A. § 1132(e)(1). The Lewises contend that it is. They argue:
Although the Lewises make a persuasive argument that the Blue Cross claim can be litigated only in federal district court, I have found cases involving similar facts in which the courts have held that the holder of a subrogation claim could litigate it in state court, even though the subrogation right was contained in a plan covered by ERISA.
The parties did not favor this Court with citations of cases involving ERISA on the question presented, but my independent research indicates that the courts that have considered the question have uniformly held that a subrogation claim is not a "civil action" within the meaning of ERISA, even though the subrogation claim is made by a party that has paid benefits pursuant to the provisions of an employee welfare benefit plan under ERISA.
One of those ERISA cases is Pfefferle v. Solomon, 718 F. Supp. 1413 (E.D.Wis.1989), which cited several other cases. In that case, the plaintiff, Karen Pfefferle, filed a malpractice suit in a Wisconsin circuit court against a chiropractor and his malpractice insurance carrier, in which she sought damages for injuries she allegedly sustained as a result of the chiropractor's negligent care, treatment, and supervision.
Pfefferle was an employee of defendant Abbott Laboratories, which provided a self-insured medical, hospital, and disability benefit plan for its employees. The plan *1078 was an employee welfare benefit plan under ERISA, 29 U.S.C. § 1001 et seq.
The plan contained a subrogation clause providing that if plan benefits were paid on account of sickness or injury caused by a third party, Abbott was subrogated to all rights of recovery against that third party to the extent necessary to reimburse the plan. According to the plan's terms, Abbott paid, on Pfefferle's behalf, for certain medical charges arising from or related to the chiropractor's supervision of Pfefferle.
Abbott, claiming that its subrogation claim was a "civil action" under the terms of ERISA, filed a petition to remove Pfefferle's suit to federal district court under the provisions of 28 U.S.C. § 1441. Concurrent with the removal of the action, Abbott filed an answer and a request for a judgment declaring its subrogation rights under the plan.
Pfefferle resisted removal of the cause to federal district court and claimed that Abbott's removal petition was frivolous because, she said, the case did not "arise under" federal law, according to the requirements of 28 U.S.C. § 1331. Pfefferle also argued that because Abbott had been named as a necessary party according to a Wisconsin statute, which required the plaintiff to join claims arising by subrogation, Abbott's claim was solely derivative, and not "affirmative." Further, Pfefferle contended that the federal Declaratory Judgment Act did not confer federal jurisdiction in the matter, because, she argued, the purpose of that Act was to effect remedies available, and not to expand federal jurisdiction.
Abbott, on the other hand, claimed that Pfefferle's suit alleged a claim falling within the scope of § 1132(a) of ERISA and was, therefore, removable to federal court. Abbott essentially argued that Congress had so pre-empted the area of employee welfare benefit plans that its subrogation claim, which was based upon provisions of a plan covered by ERISA, would give federal courts jurisdiction of the entire proceeding in which the claim was pending. Abbott claimed that Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987), stated that, based upon the legislative history of ERISA's civil enforcement provisions, Congress intended suits falling within § 1132(a) to "arise under" federal law. Abbott also claimed that Pfefferle's malpractice suit fell within the scope of both §§ 1132(a)(1)(B) and 1132(a)(3) of ERISA. Abbott's argument that the Taylor case should apply was based on two contentions: (1) Although Pfefferle had not brought an action to recover benefits from Abbott pursuant to § 1132(a)(1)(B), as had the plaintiff in Taylor, the Supreme Court's ruling and its citations to the legislative record of ERISA left no doubt that the scope of the ruling extended to any action falling within the scope of § 1132, not just those under § 1132(a)(1)(B); and (2) that Pfefferle's action fell within the scope of both § 1132(a)(1)(B) and § 1132(a)(3).[11]
In Pfefferle, the court first addressed the question: "Is Pfefferle's malpractice action a civil action within the scope of § 1132(a)(1)(B) of ERISA?" The court answered that question as follows:
718 F. Supp. at 1416-18.
The court concluded that because the malpractice suit only concerned the plan in that the possibility existed for Abbott to recover any monies that Pfefferle might recover in that suit, a subrogated self-insured employer, joined by the necessity of a state statute, could not remove a state action to federal court. The court also held that Pfefferle's malpractice suit was not a "civil action" within the scope of § 1132(a)(3).
It is my opinion that Congress did not intend that federal courts have exclusive jurisdiction of every subrogation claim that grows out of an ERISA plan. I cannot accept, therefore, the Lewises' argument that Congress intended that federal courts were exclusively to develop a "federal common law of pension plans" dealing with the subrogation rights under ERISA plans because the regulation of subrogation rights under an ERISA plan is "exclusively a federal concern." Alessi v. Raybestos-Manhattan, Inc., 451 U.S. at 523, 101 S. Ct. at 1906.
Based on the foregoing, I am of the opinion that the trial court erred in dismissing Blue Cross's subrogation claim in the interpleader action on the ground that "29 U.S.C., Section 1132(a)(3)(B)(ii) [places] exclusive jurisdiction within the federal courts to determine the Blue Cross claim," the very issue the parties briefed in this Court.
I cannot determine whether the federal district court has jurisdiction of the independent action Blue Cross later filed in that court, in which Blue Cross alleged that it was a "fiduciary," as defined in 29 U.S.C. § 1002(21)(A), and was authorized, as such, to bring suit on behalf of the plan,[12] but *1081 this Court was advised in a brief filed by Blue Cross on August 6, 1990, after this case was submitted, that the parties attended a status and scheduling conference ordered by Judge William A. Acker, Jr., in the federal action,[13] and that Judge Acker entered the following order in that action:
"s/William M. Acker, Jr.
"United States District Judge"
Blue Cross apparently filed the federal action only because the trial court had dismissed its state claim, and I address the correctness of the trial court's action only as it relates to the issues presented and argued in the parties' briefs on this petition for mandamus.[14]
Even assuming that Blue Cross is a "fiduciary" under federal law, and, therefore, is authorized to sue in federal court, does the exclusive jurisdiction of ERISA pre-empt the state court of jurisdiction to consider Blue Cross's subrogation claim? I do not think so. I believe that Blue Cross is entitled to an adjudication on its contract claim, by some court, especially in this case, where its claim has been impermissibly dismissed from the pending interpleader action on a ground that this Court has *1082 now determined was not supported by legal authority.
In view of the fact that Blue Cross has been unable to get that adjudication in the interpleader action in state court, I would not think that the federal district court, applying equitable principles, would be powerless to effect a remedy to guarantee Blue Cross its rights under its contract, whatever those rights are, and to determine whether Blue Cross's subrogation rights are to be determined by state or by federal law. In short, while I do not believe that Congress intended to give federal district courts exclusive jurisdiction to establish a "federal common law of pension plans" governing subrogation rights contained in such plans, I am aware, as the Lewises argue in their brief, that the Supreme Court of the United States, in Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504, 523, 101 S. Ct. 1895, 1906, 68 L. Ed. 2d 402 (1981), said that "Congress ... meant to establish pension plan regulation as exclusively a federal concern," I also know, of course, that the Supreme Court also said in Franchise Tax Board of Calif. v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 103 S. Ct. 2841, 77 L. Ed. 2d 420 (1983), the following:
463 U.S. at 21, 103 S. Ct. at 2852.
463 U.S. at 25, 103 S. Ct. at 28.
Based on the foregoing, I am of the opinion that the Lewises' petition for the writ mandamus should be denied.[15] Consequently, I must dissent.
STEAGALL, J., concurs.
[1] GEICO's insured caused the automobile accident, in which Lorraine and Deirdre Lewis and the driver of, and a passenger in, a second vehicle were injured.
[2] Lorraine Lewis, Deirdre Lewis, and the driver of, and the passenger in, the second car (both of whom were minors) made claims against GEICO's insured. The claim of J. William Lewis apparently was based on his relationship with Lorraine and Deirdre Lewis.
[3] The court concluded that Blue Cross's claim was limited to that portion of the interpleaded funds allocated to the Lewises.
[4] The grounds of the Lewises' motion were as follows:
"1. The instant proceeding is an interpleader action to settle claims arising out of an automobile accident. The negligent party's insurance carrier, Government Employees Insurance Company (`GEICO'), has filed a Bill in the Nature of Bill of Interpleader (the `Bill') and, in order to put Blue Cross on notice, GEICO named Blue Cross as a defendant in the Bill. Blue Cross has merely filed an answer to the Bill and has filed no pleading stating a claim on which relief can be granted. Accordingly, Blue Cross is due to be dismissed from this action for failure to state a claim.
"2. Even if Blue Cross is deemed to have stated a claim, the said claim is due to be dismissed because only the federal district courts have jurisdiction to entertain such a claim. Under 29 U.S.C. § 1132(e)(1), the federal district courts are granted exclusive jurisdiction of all claims arising under or with respect to any `welfare plan' (other than a claim by a beneficiary for benefits under the welfare plan). The subject Blue Cross contract is a `welfare plan' and Blue Cross's claim is under the subrogation/reimbursement provision of the contract. Accordingly, this Court does not have jurisdiction to entertain Blue Cross's claim, and Blue Cross is due to be dismissed from this action."
[5] In that federal action, Blue Cross prayed:
"A. That this Court ascertain the amount of money to which Blue Cross is entitled from the Lewises under the subrogation/reimbursement provision of the Health Benefits plan.
"B. That this Court enter a judgment setting forth Blue Cross's right to subrogation/reimbursement in this case and the amount of Blue Cross's interest in any amounts recovered by the Lewises in connection with this accident, including the interpleaded amounts held by the Jefferson County Circuit Court, Equity Division, in case number CV-89-7299, and other amounts recovered by the Lewises which amounts are necessary to satisfy Blue Cross's interest.
"C. That this Court grant Blue Cross such further relief as it may deem fit and proper.
"D. That this Court determine the subrogation/reimbursement rights of Blue Cross under the terms and provisions of the Health Benefits plan.
"E. That this Court award Blue Cross reasonable attorney fees and costs."
[6] In the "counter-petition," Blue Cross stated that its "counter-petition is due to be granted for the reasons set forth in [its] memorandum brief." This "counter-petition" was not docketed, but both parties extensively briefed the question involving the exclusive jurisdiction of Blue Cross's subrogation claim by the federal district court. The majority does not consider the effect of both sides' arguing the matter to be that Blue Cross had filed a proper counter-petition. A decision on the jurisdictional question is necessary to a resolution of the petition filed by the Lewises, because the issue is so intertwined with the question of the appropriateness of the retention by the state trial judge of a portion of the interpleaded funds. I will examine the question of whether the federal courts have exclusive jurisdiction of Blue Cross's claim, because that issue is tied to the issue presented, and also because Rule 1, Ala.R.App.P., provides, in part, that the Appellate Rules "shall be construed so as to assure the just, speedy, and inexpensive determination of every appellate proceeding on its merits."
[7] In this regard, the language of the Blue Cross policy is quite specific, and any court construing it, and cognizant of the right of parties to make contracts, would have to conclude that Blue Cross's claim is not frivolous.
[8] The court found "that it should not release the funds which have been interpled until a claimant has satisfied it that such claimant is entitled to the funds," and that "[a]t this point neither claimant has satisfied the court that it is entitled to the funds." (Emphasis added.)
[9] Page 2 of the petitioners' "Memorandum in Opposition to Motion for Oral Argument," filed August 21, 1990. On page 3 of that same brief the petitioners argue that "the sole issue before this court is whether 28 U.S.C. § 1132(e)(1) means what it says, and that issue is not complex."
[10] Section 1132(e)(1) of title 29 provides:
"Except for actions under subsection (a)(1)(B) of this section, the district courts of the United States shall have exclusive jurisdiction of all civil actions under this subchapter brought by the Secretary or by a participant, beneficiary or fiduciary. State courts of competent jurisdiction and district courts of the United States shall have concurrent jurisdiction of actions under subsection (a)(1)(B) of this section."
The concurrent jurisdiction exception set out in subsection (a)(1)(B) is as follows:
"A civil action may be brought
"(1) by a participant or beneficiary
". . . .
"(B) to recover benefits due to him under the terms of his plan to enforce his rights under the terms of the plan or to clarify his rights to future benefits under the terms of the plan."
[11] In this case, the Lewises claimed, in their motion to dismiss Blue Cross from the interpleader proceeding, that the federal district court was granted exclusive jurisdiction of Blue Cross's subrogation claim because it was contained in a "welfare plan" covered by ERISA.
[12] Blue Cross, in the federal action, alleged that it was a "fiduciary" under the Health Benefits Plan, and as such, had "standing under § 502(a)(3), 29 U.S.C. § 1132(a)(3), of ERISA to bring [the] action on behalf of the Health Benefits Plan and its participants." The federal courts apparently are not in agreement on whether a benefit plan can bring an action under § 1132(a). Several courts have held that a benefit plan cannot bring suit pursuant to § 1132. Pressroom Unions-Printers League Income Security Fund v. Continental Assurance Co., 700 F.2d 889, 892-93 (2d Cir.), cert. denied, 464 U.S. 845, 104 S. Ct. 148, 78 L. Ed. 2d 138 (1983); International Union of Bricklayers & Allied Craftsmen v. Menard & Co. Masonry Building Contractors, 619 F. Supp. 1457, 1459-63 (D.R. I.1985); Sixty-Five Security Plan v. Blue Cross & Blue Shield of Greater New York, 583 F. Supp. 380, 383-84, amended, 588 F. Supp. 119 (S.D.N. Y.1984); Amalgamated Industrial Union Local 44-A Health & Welfare Fund v. Webb, 562 F. Supp. 185, 188 (N.D.Ill.1983).
However, two cases have held that benefit plans fall under the definition of a fiduciary. Saramar Aluminum Co. v. Pension Plan for Employees of Aluminum Industry, 782 F.2d 577, 581 (6th Cir.1986), and American Federation of Unions, Local 102 Health & Welfare Fund v. Equitable Life Assurance Society, 647 F. Supp. 947, 949-50 (M.D.La.1985), reversed in part by American Federation of Unions, Local 102 Health & Welfare Fund v. Equitable Life Assurance Society, 841 F.2d 658 (5th Cir.1988), in which the Fifth Circuit Court of Appeals affirmed a holding by the District Court that under the facts of that case, Equitable was never more than an insurance carrier with respect to the fund in question.
Section 1002(21)(A) defines a "fiduciary" as follows:
"[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, (ii) he renders investment advice for a fee or other compensation, direct or indirect, with respect to any moneys or other property of such plan, or has any authority or responsibility to do so, or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan. Such term includes any person designated under section 1105(c)(1)(B) of this title."
[13] Blue Cross & Blue Shield of Alabama v. Lewis, 753 F. Supp. 345.
[14] As I have pointed out in footnote 6, supra, the "counter-petition" was never docketed and this Court never ordered an answer and briefs on the question presented in that "counter-petition," but as I have also pointed out, the parties have extensively argued the federal jurisdictional question and I think it is inextricably intertwined with the question presented in the Lewises' petition.
[15] I have not addressed the "counter-petition" of Blue Cross, even though the parties have argued it and the federal district court refers to "cross-petitions for mandamus." I have addressed the jurisdictional issue, however, because even the Lewises consider it to the "sole issue" presented in this mandamus petition, and the parties recognize that a resolution of the jurisdictional issue is necessary to resolve the issues presented by the Lewises' petition. | November 2, 1990 |
e5e888bf-bebc-4f3b-b1d1-cf161c885b82 | Ex Parte Washington | 571 So. 2d 1062 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1062 (1990)
Ex parte Clarence WASHINGTON.
(Re Clarence Key Washington v. State).
89-1050.
Supreme Court of Alabama.
October 26, 1990.
David G. Flack, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
We granted the writ of certiorari in this case to review the petitioner's claim that he could not be convicted on his plea of guilty to second degree rape because it was not a lesser included offense of first degree rape, with which he was charged in the indictment.
Clarence Washington was indicted for rape in the first degree. Washington, who was 19 years old, was accused of raping a girl who was 14 years old. The State moved to amend the indictment to charge rape in the second degree, and Washington *1063 pleaded guilty to rape in the second degree. Washington appealed to the Court of Criminal Appeals, and that Court affirmed, without opinion, 564 So. 2d 115. Washington petitioned this Court to review the judgment of the Court of Criminal Appeals.
Washington argues that the trial court was without jurisdiction to accept his guilty plea because the State was without authority to amend the indictment, which charged him with first degree rape, to charge him with second degree rape, because, he says, second degree rape is not a lesser included offense of first degree rape.
The issue before this Court is whether, under the facts in this case, rape in the second degree is a lesser included offense of rape in the first degree. If so, then the State could amend the indictment. We find that it is.
The State, of course, cannot amend an indictment to state a new offense,[1] but an indictment need not state a lesser included offense that is necessarily included in the offense charged. See Temp. Rule 15.2(b) and (c).[2]
The question is what constitutes a lesser included offense. In determining whether vehicular homicide is a lesser included offense of murder, this Court, in Ex parte Jordan, 486 So. 2d 485, 488 (Ala.1986), interpreted § 13A-1-9(a)(1), as follows: "Upon the proper application of subsection (1) of the lesser-included-offense statute to these criminal statutes, the issue is simple: Can all or fewer than all of these facts establishing the commission of murder also establish the commission of vehicular homicide?" (Emphasis original.)
Applying the principle set out in Ex parte Jordan to this case, we note that rape in the second degree is a lesser included offense of rape in the first degree only if all or fewer than all of the facts establishing the commission of first degree rape also establish the commission of second degree rape.
The indictment in this case read as follows:
The petitioner cites in support of his argument that rape in the second degree is not a lesser included offense of rape in the first degree the case of Allen v. State, 472 So. 2d 1122 (Ala.Cr.App.1985). In that case the Court of Criminal Appeals did hold that rape in the second degree was not a lesser included offense of rape in the first degree when the victim is over 12 and the indictment charges rape in the first degree under § 13A-6-61(a)(3). We find that case to be distinguishable from this case. In Allen, the indictment alleged that the defendant was 16 years old or older and that the victim was less than 12 years old, but the proof at trial showed that the victim was 12 years old at the time of the offense. Therefore, the trial court dismissed the indictment *1064 for rape in the first degree, and the State was allowed to reindict the defendant for rape in the second degree, because, under those facts, rape in the second degree was not a lesser included offense of rape in the first degree. In that case, Allen was indicted under § 13A-6-61(a)(3), which makes the ages of the defendant and the victim necessary elements of the crime, and the ages specified in § 13A-6-61(a)(3) (defendant 16 years old or older and victim less than 12) necessarily exclude the ages needed to prove rape in the second degree under § 13A-6-62(a)(1) (defendant 16 years or older and victim less than 16 and more than 12 years oldthe facts of this case). Thus, Allen stands for the proposition that rape in the second degree under § 13A-6-62(a)(1) is not a lesser included offense of rape in the first degree under § 13A-6-61(a)(3), because of the different proof of ages required.
In the present case, however, Washington was not indicted under § 13A-6-61(a)(3); he was indicted under § 13A-6-61(a)(1), engaging in sexual intercourse with a female by forcible compulsion. The ages of the defendant and the victim are not necessary elements under § 13A-6-61(a)(1).[3] The facts that the State would have brought forth in this case to prove forcible compulsion would have included the ages of Washington and the victim. If this case had gone to a jury, Washington would have been entitled to a jury instruction on second degree rape, as defined in § 13A-6-62(a)(1), the section of the Code Washington was charged with violating, and the charge to which he entered a plea of guilty.[4]
The Court of Criminal Appeals has held that, under the proper facts, a jury in a case involving a defendant indicted for rape in the first degree can be instructed on rape in the second degree as a lesser included offense. In Beavers v. State, 511 So. 2d 951, 954-55 (Ala.Cr.App.1987), the court stated:
(Emphasis original.)
All or fewer than all the facts of this case that would establish commission of first degree rape would also establish every element of second degree rape. Therefore, under these facts, rape in the second degree is a lesser included offense of rape in the first degree, and the State could amend the indictment.
The Court of Criminal Appeals did not err in affirming petitioner's conviction of second degree rape. The judgment of that court is due to be, and it is hereby, affirmed.
AFFIRMED.
ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Ala.Code 1975, § 13A-1-9(a)(1), provides:
"(a) A defendant may be convicted of an offense included in an offense charged. An offense is an included one if:
"(1) It is established by proof of the same or fewer than all the facts required to establish the commission of the offense charged;...."
See Temp.Rule 15.5, A.R.Crim.P.
[2] Temp.Rule 15.2 provides, in part:
"(b) Charging the Offense. The indictment or information shall state for each separate offense, other than lesser included offenses, the official or customary citation of the ... provision of law which the defendant is alleged to have violated.
"(c) Notice of Necessarily Included Offenses. Specification of an offense in an indictment or information shall constitute a charge of that offense and of all lesser offenses necessarily included therein."
[3] Section 13A-6-61(a)(1) provides:
"(a) A male commits the crime of rape in the first degree if:
"(1) He engages in sexual intercourse with a female by forcible compulsion."
[4] Section 13A-6-62(a)(1) defines rape in the second degree, as follows:
"(a) A male commits the crime of rape in the second degree if:
"(1) Being 16 years old or older, he engages in sexual intercourse with a female less than 16 and more than 12 years old; provided, however, the actor is at least two years older than the female." | October 26, 1990 |
d2cd689d-c46d-43ce-9417-17cfdd4b79a0 | Owens v. Grant | 569 So. 2d 707 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 707 (1990)
T.O. OWENS
v.
Donald GRANT, as administrator of the estate of Valerie Donnel Grant, deceased, et al.
89-247.
Supreme Court of Alabama.
September 28, 1990.
Forrest S. Latta of Barker & Janecky, Mobile, for appellant.
John T. Crowder and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, and Charles R. Godwin, Atmore, for appellees.
MADDOX, Justice.
The issue in this case is whether the owner of a man-made lake who permitted families to use the lake for recreational purposes upon the payment of a $50.00 fee was, as a matter of law, operating a "commercial enterprise for profit" within the meaning of Ala.Code 1975, §§ 35-15-1 through -5, and 35-15-20 through -28, (hereinafter referred to as the Alabama recreational use statute).
This is a wrongful death action. Valerie Donnel Grant, a minor, drowned in Big Foot Lake, a man-made lake near Atmore in Escambia County, Alabama. That lake was not originally designed for any recreational purpose, but was used initially by the appellant, T.O. Owens, as part of a gravel production business. Gravel was removed from the ground in the area in 1984 and was moved to an adjacent piece of property, and the resulting large gravel pit filled with water of sufficient quality for fishing, boating, and swimming.
In 1986, Owens opened his property to members of the public for recreational use, provided they purchased a written permit, which stated: "BIG FOOT LAKEIt is fully understood that by accepting this permit I do not hold the land owner responsible for any type of accident." A total of 42 permits were issued for $50 each per family.[1]
On July 19, 1986, Grant and three other teenage girls went to Big Foot Lake. The evidence tends to show that two of the girls waded out far enough on a shallow ledge to cause some loose gravel to give way, thereby causing them to slip into deeper water, from which they could not *708 swim or climb out. In an attempt to rescue the two girls, Grant jumped in to rescue them, but she drowned, along with the two girls.
Valerie's father, Donald Grant, as administrator of the estate, sued Owens, alleging negligence and wantonness in the maintenance of the lake.
At trial, Owens moved for a directed verdict pursuant to § 35-15-1 et seq.; those sections limit the liability of private owners who make their premises available to the public for recreational use, and in pertinent part provide:
"§ 35-15-20. Legislative intent.
"§ 35-15-21. Definitions.
"§ 35-15-22. Inspection and warning not required.
"§ 35-15-23. Limitations on legal liability of owner.
"§ 35-15-24. Otherwise existing liability not limited.
The trial court denied the defendant's motion for a directed verdict and refused to instruct the jury regarding this statute.
The trial transcript shows that the court engaged in a colloquy with counsel for plaintiff and defendant concerning the interpretation of the statute, but that colloquy did not adequately analyze the issue of what was meant by the legislature when it used the words "commercial enterprise for profit" in § 35-15-3.
The court instructed the jury on negligence and wantonness as set forth in Restatement (Second) of Torts § 339 (1986), *710 and the jury returned a verdict in the amount of $125,000 against Owens.
It is apparent from the record that the court was of the opinion that no jury question was presented on the applicability of the statute.
Owens argues, among other things, that the trial court erred, at least in refusing to instruct the jury concerning the fact questions regarding whether the activity at Big Foot Lake was "profit motivated." We agree with Owens's argument that the court should have submitted to the jury the fact questions regarding whether granting to the public the right to enter his property for recreational purposes for a fee constituted the operation of a "commercial enterprise for profit" within the meaning of the statute.
Although Alabama's recreational use statute has been in effect since 1975, there have been few cases interpreting it. The key to this case lies in the interpretation of the term "profit-motivated," which is contained in § 35-15-21(5). No case law in Alabama has construed this particular portion of the statute; therefore, we must determine what the legislature intended by using this language. To do so, we must look to the history and public policy behind the statute.
The Alabama statute, passed in 1975, and later amended in 1981, in large part, parallels a model act promulgated over 25 years ago by the Council of State Governments and entitled "Public recreation on private lands: limitations on liability."
The relevant portions of the model act are as follows:
24 Suggested State Legislation 150 (Council of State Governments, 1965) (emphasis added).
Currently, 43 states have adopted the model act to some extent.
Generally, the purpose of recreational use legislation, as expressed in the preambles of many of the statutes, is to encourage owners of private lands to make their land available to the public for recreational purposes. The concept is that such legislation provides a type of "quid pro quo" whereby a landowner receives immunity from lawsuits in exchange for opening his land to the public. The preamble in Alabama's recreational statutes contains the purpose behind the adoption of these statutes. It reads:
Section 35-15-20 (Supp.1982).
While a majority of the other states have adopted the model statute verbatim and therefore do not grant immunity from suit if the landowner opens his land for a "charge" (see model statute, § 4), Alabama and Louisiana did not adopt the model act. Alabama and Louisiana deny recovery only if the activity is "profit motivated." Because of the similarity between the Alabama and Louisiana statutes, and in view of the fact that Louisiana has addressed the same question we have before us, we look to the law of Louisiana for guidance.
*711 The Louisiana statute reads, in relevant part, as follows:
La.Rev.Stat.Ann. § 9:2795 (West 1975) (emphasis added).
The Louisiana Court of Appeals resolved the ambiguities in the phrase "commercial recreational developments" and held that within the intendment of the statute, a "commercial recreational development" is one that is "run for profit." Thomas v. Jeane, 411 So. 2d 744 (La.App.1982); Pratt v. State, 408 So. 2d 336 (La.App.1982). In both of those cases the plaintiff paid a fee to enter the recreational area. Acknowledging this, the court specifically held that charging fees would not, in and of itself, render an operation commercial: "[P]rofit as a primary objective of the venture would be essential to render it commercial." 411 So. 2d at 747; 408 So. 2d at 342.
Other states define "charge" or related terms from a negative perspective. For example, Wisconsin's statute provides:
Wis.Stat. § 29.68 (1979).
Wisconsin is the only state, insofar as our research shows, that specifies a certain dollar amount to meet the consideration requirement.
While the Alabama statute generally parallels the model act, it clearly embraces a different approach when a fee is charged, as in this case. It does not specifically require a gratuitous entry, as the model statute does; in fact, the legislature specified that charging a "maintenance fee" would not exclude a landowner from the protection of the statute. § 35-15-21(5). Federal courts in Alabama that have interpreted Alabama's statute have held that the statutory immunity applied, regardless of whether an admission fee was charged or not. George v. United States, 735 F. Supp. 1524 (M.D.Ala.1990); Clark v. Tennessee Valley Authority, 606 F. Supp. 130 (N.D.Ala.1985); and Russell v. Tennessee Valley Authority, 564 F. Supp. 1043 (N.D. Ala.1983).
Alabama's statute does not follow the Louisiana statute in specifying that the charging of fees does not render the facility a commercial venture, see La.Rev.Stat. Ann. § 9:2795 (1975), and our legislature did not specify a dollar amount that would necessarily constitute a commercial use, as the Wisconsin legislature did, but rather our legislature used the term "profit-motivated." What did the legislature intend by adopting the term "profit-motivated"?
In answering this question, we are aided by a decision of this Court written by Chief Justice Brickell interpreting the phrase "carrying on a business for profit," which was contained in a legislative enactment. In Weil v. State, 52 Ala. 19, 21 (1875), this Court stated:
The application of the recreational use statute cannot be decided simplistically on the basis of whether the use of the property was totally gratuitous. In view of the history of the statute and its prior interpretation, we cannot accept the appellee's argument that, as a matter of law, the statute does not apply. If, after a trial, the factfinder determines that the appellant intended to derive a profit from the recreational use of the lake, then the recreational use statute would not protect him. If, however, the factfinder determines that he did not intend to derive a profit, then the immunity provisions of the statute would apply.
We hold, therefore, that it is a jury question whether the appellant intended to derive a profit from the operation of Big Foot Lake. We cannot say that, as a matter of law, that operation is a commercial recreational use of his property.
Under the facts of this particular case, we believe that there is a material question of fact as to whether the appellant intended to derive a profit from the operation of Big Foot Lake. Even though the man-made lake had a name, and was connected with the gravel pit operation, and the recreational users used the same entrance to the lake as did those carrying on business related to the gravel pit operations, we cannot determine, as a matter of law, that the appellant intended to make a profit on the recreational operation.
We hold, therefore, that the trial court erred by refusing to instruct the jury on the applicable statute. Consequently, we reverse the judgment of the trial court and remand the cause for a new trial.
REVERSED AND REMANDED.
JONES, ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The deceased minor had permission to be on the premises because her grandmother had an agreement with Owens that granted Owens an easement across her property for access to his property. Owens paid the grandmother $300 per year for use of the easement and gave the grandmother and her "family" unlimited use of his lake property, in return for use of the easement. | September 28, 1990 |
bbfcbb94-9708-42b8-b7fc-b5bf78931824 | Buck v. City of Rainsville | 572 So. 2d 419 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 419 (1990)
Paul Edward BUCK, as administrator of the estate of Marvin Edward Buck, deceased
v.
CITY OF RAINSVILLE.
89-739.
Supreme Court of Alabama.
November 9, 1990.
Steven G. Noles, Fort Payne, for appellant.
Terry Gillis of Kellett, Gillis & Kellett, Fort Payne, for appellee.
KENNEDY, Justice.
On September 1, 1987, Marvin Edward Buck was a passenger in a vehicle driven by Michael Steven Buck. The vehicle overturned on Church Street in Rainsville, Alabama, and Marvin was killed.
On June 14, 1988, Paul Buck, Marvin's father, was granted letters of administration for Marvin's estate. On August 30, 1988, Paul, as administrator of Marvin's estate, filed a wrongful death action against the City of Rainsville (the "City"), Michael Steven Buck, and fictitiously named parties.
The City filed a motion for summary judgment, arguing that Paul had not complied with the time requirement for presenting claims against the City pursuant to Ala.Code 1975, § 11-47-23. The trial court entered a summary judgment for the City and made that judgment final pursuant to Rule 54(b), A.R.Civ.P.
Section 11-47-23 provides:
(Emphasis added.) Paul did not provide notice to the City of his claim within six months of Marvin's death. Section 11-47-23 requires that notice be filed within six months of the accrual of the cause of action. In Diemert v. City of Mobile, 474 So. 2d 663, 666 (Ala.1985), the Court held that if an action on a claim against a city is filed within the six-month period prescribed *420 in § 11-47-23 then "it is sufficient presentation of the claim under the statute." Accordingly, if Paul's cause of action "accrued" at a point within the six months preceding the date on which he filed his action, then he complied with § 11-47-23, and that provision does not bar his action.[1] To determine whether Paul timely presented his claim, we must determine when Paul's cause of action "accrued" for the purposes of § 11-47-23.
In Hunnicutt v. City of Tuscaloosa, 337 So. 2d 346 (Ala.1976), the Court addressed that same issue. In that case, Linda Hunnicutt, as administratrix of the estate of Doris Burkhalter, filed a wrongful death action against the City of Tuscaloosa. Doris Burkhalter disappeared on October 2, 1973. On June 23, 1974, her body was found in an automobile in Lake Tuscaloosa. Linda Hunnicutt, Doris's daughter, was appointed administratrix of Doris's estate on August 16, 1974. Hunnicutt filed a claim with the city on December 9, 1974, and also filed a wrongful death action on the same date. Tuscaloosa moved for a summary judgment, alleging that Hunnicutt did not provide notice of a claim against the city within six months of the accrual of the cause of action, as required by § 476, Title 37, Alabama Code of 1940 (Recompiled 1958) (the predecessor of Ala.Code 1975, § 11-47-23). The trial court entered a summary judgment for Tuscaloosa, and Hunnicutt appealed.
This Court wrote:
337 So. 2d at 348-50. (Emphasis added.)
According to Hunnicutt, for the purposes of § 11-47-23, a wrongful death cause of action accrues on the first day following the passage of five days after the discovery of the death of the individual whose death is the basis of the action.[2] Paul argues that Hunnicutt improperly and unnecessarilyreferred to June 29 as the date of "accrual" of the cause of action; he contends that the cause of action does not accrue for the purposes of § 11-47-23 until the appointment of a personal representative who is the plaintiff in a wrongful death action. Hunnicutt's reference to June 29 as the date of the accrual was unnecessary, because, measuring even from the date the death became known, the action was filed within six months.
Alabama's wrongful death statute, Ala. Code 1975, § 6-5-410, provides that "a personal representative may commence an action [for wrongful death]." A wrongful death action is statutory and did not exist at common law. Brown v. Mounger, 541 So. 2d 463 (Ala.1989); Downtown Nursing Home, Inc. v. Pool, 375 So. 2d 465 (Ala. 1979), cert. denied, 445 U.S. 930, 100 S. Ct. 1318, 63 L. Ed. 2d 763 (1980); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911). Under the statute, the cause of action is vested in the personal representative.[3]Ex parte W.S. Newell, Inc., 569 So. 2d 725 (Ala.1990); Brown, supra, at 463; Downtown Nursing Home, at 466; Hatas v. Partin, 278 Ala. 65, 67-68, 175 So. 2d 759, 761-62 (1965); Bell v. Riley Bus Lines, 257 Ala. 120, 123, 57 So. 2d 612, 615 (1952); Holt v. Stollenwerck, 174 Ala. 213, 216, 56 So. 912 (1911). "The words `personal representative' are broader in some respects, but when used in this statute, they mean the executor or administrator of the testator or intestate." Hatas, 278 Ala. at 67, 175 So. 2d at 760.
We have addressed on several occasions when a cause of action accrues. Hunnicutt cited Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So. 2d 468, 473, (1973), for this succinct and long-settled definition of when a cause of action accrues: "the cause accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon." (Emphasis added.) Using that definition, Hunnicutt suggested that the wrongful death cause of action accrued on the day following the passage of five days after the discovery of the death of the person whose *422 death was the basis of the action. That suggestion assumed that Linda Hunnicutt, as personal representative, was entitled to maintain the wrongful death action on the first day following the passage of five days after the discovery of her mother's death, even though at that time she had not been appointed personal representative of her mother's estate.
Even if that assumption was legally correct at the time of the holding in Hunnicutt, the assumption is not legally correct now. In a series of cases beginning in 1974, the Court has consistently held that except in certain cases involving the death of a minor (see § 6-5-391), an individual cannot maintain a wrongful death action unless he has been appointed personal representative of the estate of the deceased whose death is the basis of the wrongful death action.
In Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So. 2d 98 (1974), Borden Strickland, purportedly as administrator of the estate of William Woodruff Jackson, filed a wrongful death action pursuant to the provisions of the Jones Act, 46 U.S.C.App. § 688. He filed the action on March 11, 1968; Jackson had been killed on March 12, 1965. Under the provisions of the Jones Act, Strickland had three years in which to file the action. Although Strickland filed the action within three years, he was not appointed administrator of the estate until March 13, 1968, one day after the three years had passed. The Court wrote:
293 Ala. at 352, 353, 303 So. 2d at 101, 102. (Emphasis added.) The Court in Strickland then held that "any action purported to have been filed by the administrator prior to March 13, 1968, was a nullity." Strickland, 293 Ala. at 354, 303 So. 2d at 103. The Court thus, in effect, held that Strickland could not maintain the wrongful death action until he was appointed as a personal representative of Jackson's estate.
That holding is stated directly in other cases after Strickland. In Downtown Nursing Home, supra, Johnnie Parker filed an action on November 23, 1977, against Downtown Nursing Home, Inc., seeking damages for the wrongful death of his father, Eddie Parker, who had died on November 24, 1976. Johnnie Parker had not been appointed as a personal representative of his father's estate. Ben Pool was appointed administrator of Eddie Parker's estate on February 5, 1979, more than two years after Eddie's death. The wrongful *423 death statute, § 6-5-410, requires that wrongful death actions be filed within two years after the death made the basis of the action. Pool argued that his appointment as administrator would "relate back" to the date of the filing of the original complaint, pursuant to Rule 15(c), A.R.Civ.P.
The Court disagreed and, citing Strickland, held:
375 So. 2d at 476. Again, the Court held that the individual seeking to maintain the wrongful death action could not do so until he was appointed as a personal representative.
In Guthrie v. Hartselle Medical Center, Inc., 477 So. 2d 377 (Ala.1985), the Court, discussing Strickland and Downtown Nursing Home, stated:
477 So. 2d at 377. (Emphasis added.)
In Brown v. Mounger, 541 So. 2d 463 (Ala.1989), Nathaniel and Clotile Mounger filed an action against Patricia Brown and Wayne Bradshaw, alleging that they had wrongfully caused the death of the plaintiffs' son, Nathan Mounger, who was killed on October 13, 1983, in an automobile accident. The Moungers filed their complaint on October 19, 1984, alleging that they were the administrators of Nathan's estate. Actually, the Moungers did not receive letters of administration for the estate until May 13, 1987. Citing Downtown Nursing Home, Strickland, and Guthrie, and pointing out that the Moungers did not receive their letters of administration within two years of Nathan's death, the Court held that the Moungers could not maintain their action.
To make our final holding, we discuss together several points previously raised. Section 11-47-23 requires that an individual with a wrongful death cause of action against the City present his claim within six months from its accrual. A cause of action "accrues" when the party in whose favor it arises is entitled to maintain an action on it. The party in whose favor a wrongful death cause of action arises is the deceased's personal representative, in whom the cause of action is vested by statute. Hunnicutt suggested that for the purposes of § 11-47-23 a wrongful death cause of action accrues on the day following the passage of five days after discovery of the death of the person whose death is the basis of the wrongful death action; that suggestion assumes that the personal representative is entitled to maintain the action at that time. However, according to Strickland, Downtown Nursing Home, Guthrie, and Brown, in those cases in which the action can be brought only by a personal representative, an individual is not entitled to sue until he or she is appointed personal representative. Accordingly, that suggestion in Hunnicutt is incorrect, although it admittedly would achieve the proper result for the particular case in which a personal representative is appointed on the first day following the passage of five days after the discovery of the death of the individual whose death is the basis of the wrongful death cause of action.
Considering our previous discussion, we hold thatin regard to actions that must be brought by a personal representative for the purposes of § 11-47-23, a wrongful death cause of action accrues at the time the personal representative is appointed. Home Insurance Co., supra; Strickland, supra; Downtown Nursing Home, supra; Guthrie, supra; Brown, supra. To the extent that Hunnicutt suggests otherwise, it is overruled.
*424 To avoid misunderstanding, we note that this ruling in no way affects the remedy restriction provision of § 6-5-410, which requires that a wrongful death action be brought within two years after the death of the testator or intestate. That two-year period is a substantive part of the cause of action and is not to be treated as a statute of limitations; the two-year period is not a limitation against the remedy only, because after two years the remedy expires. Brown, at 464, citing Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So. 2d 76 (1965); Parker v. Fies & Son, 243 Ala. 348, 10 So. 2d 13 (1942); Louisville & N.R.R. v. Chamblee, 171 Ala. 188, 54 So. 681 (1911).
On June 14, 1988, Paul was granted letters of administration for Marvin's estate, and at that time, for the purposes of § 11-47-23, the cause of action for wrongful death accrued. Paul filed his wrongful death action on August 30, 1988, within the six-month period required by § 11-47-23, and under Diemert the filing of the action constituted sufficient notice for compliance with § 11-47-23. The trial court erred when it held that Paul did not comply with § 11-47-23; accordingly, the judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] The City makes no argument that Paul did not comply with Ala.Code 1975, § 11-47-192, which is to be read in connection with § 11-47-23. See Diemert, at 665.
[2] Hunnicutt's calculation of days is consistent with prior cases, except for its reference to June 28 in the last paragraph quoted above. See, e.g., Peek v. Haardt, 235 Ala. 145, 177 So. 634 (1937), and Ex parte Campbell, 229 Ala. 422, 157 So. 675 (1934).
[3] In the case of the death of a minor child, § 6-5-391 in some instances gives to the father or mother of the child a preferred right over the personal representative. Hatas v. Partin, 278 Ala. 65, 175 So. 2d 759 (1965). The record in this case does not indicate that Marvin was a minor. | November 9, 1990 |
0ec1c9dc-5f04-473a-83f7-46b1eb33708a | John R. Cowley & Bros., Inc. v. Brown | 569 So. 2d 375 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 375 (1990)
JOHN R. COWLEY & BROTHERS, INC.
v.
John James BROWN.
89-214.
Supreme Court of Alabama.
September 28, 1990.
*376 Robert H. Smith of Collins, Galloway & Smith, Mobile, for appellant.
Joseph O. Kulakowski, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a judgment entered on a jury verdict of $300,000 for the plaintiff, John James Brown, and against the defendant, John R. Cowley & Brothers, Inc. ("Cowley"), an Alabama corporation. We affirm.
Brown received very serious injures when a steel tank he was cutting with a blow torch exploded. Brown sued, alleging that negligence and/or wantonness on the part of Cowley was the proximate cause of the severe burns that he suffered in the explosion. His complaint alleged that the defendant was negligent and/or wanton in representing to him that the tank in question had been cleaned and thus was not dangerous. He alleged in his complaint that his hands, arms, face, and body were severely burned. He further alleged that he received a burn to his throat so serious that his larnyx, or voice box, had to be surgically removed, resulting in his loss of speech. Cowley filed a motion for summary judgment or, in the alternative, a motion in limine, directed at Brown's allegation that his laryngectomy resulted from the explosion, contending that it was due to cancer. The trial judge sustained Cowley's objection to any questioning relative to any causal connection between the cancer and the burn. Cowley also raised the affirmative defense of contributory negligence.
Cowley filed a motion for a directed verdict, which was granted as to all but a single count. At the conclusion of the trial, the judge heard the argument of counsel and stated: "All right. What I am going to do is send the case to the jury on the single claim that the defendant was guilty of negligence in furnishing to the plaintiff's employer a tank which was represented by the defendant to be clean or appropriate for being cut up." (R.T. 284.) On June 26, 1989, the jury returned a verdict in favor of Brown. Cowley filed a motion for a JNOV, or, in the alternative, for a new trial, which was denied by the trial judge. This appeal followed.
Cowley first contends that Brown failed to prove by substantial evidence that Cowley breached a duty owing to him. It next contends that Brown failed to prove by substantial evidence that the representations made to him were made by an agent of Cowley acting within the line and scope of his employment. Finally, Cowley contends that Brown was contributorily negligent as a matter of law, and is, therefore, barred from recovery. There is no dispute as to the extent of Brown's injuries and the amount of damages awarded. There is no claim that the award is excessive.
The three arguments raised by Cowley on appeal all revolve around the question of the sufficiency of the evidence. Cowley argues that the trial court erred in failing to direct a verdict and in failing to enter in its favor a judgment notwithstanding the verdict on the issues of agency and negligence, and that Brown was guilty of contributory negligence. "The law of Alabama is clear as to the standards for testing a motion for directed verdict and a motion for judgment notwithstanding the verdict (JNOV). The standard for testing a motion for directed verdict is identical to that for testing a motion for JNOV. Casey v. Jones, 410 So. 2d 5 (Ala.1981). Both motions test the sufficiency of the evidence. Wright v. Fountain, 454 So. 2d 520 (Ala. 1984)." Black Belt Wood Co. v. Sessions, *377 514 So. 2d 1249, 1251 (Ala.1986). Evidentiary challenges, except on grounds of admissibility, are divided into two separate and distinct categories: sufficiency of the evidence raised by motion for JNOV and measured by the substantial evidence rule; and weight and preponderance of the evidence, raised by motion for a new trial and measured by the "palpably wrong and manifestly unjust" standard. Nelson Bros. Inc. v. Busby, 513 So. 2d 1015, 1018 (Ala.1987), quoting Burroughs Corp. v. Hall Affiliates, Inc., 423 So. 2d 1348 (Ala.1982).
Substantial evidence is defined as "evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven." Code 1975, § 12-21-12(d); Economy Fire & Cas. Co. v. Goar, 551 So. 2d 957, 959 (Ala.1989); see also Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989).
The evidence before us indicates that Brown worked as a scrap metal cutter for James Anderson. His job was to cut large steel fabrications into one-foot by three-foot pieces. The site at which he worked was divided into five cutting lanes. He was in lane three. He testified that the large steel fabrications were delivered on trucks belonging to Cowley.
Brown testified that equipment such as trucks, cranes, and magnet trucks, belonging to Cowley, came to the cutting site to retrieve the scrap steel, which was hauled to be weighed at Cowley's scales, a short distance away. Brown further testified that no scrap metal company other than defendant Cowley weighed the scrap metal. Brown never witnessed any steel being picked up that was not picked up by Cowley's trucks.
James R. Brewer, president and owner of Freeman Wrecking Company, rented the cutting site to James Anderson. Brewer testified that he was there every day and could observe the yard. Brewer testified as follows:
(R.T. 38-39.)
Brewer testified further that he had had occasion before the date of the accident to see Cowley's trucks going into and out of the cutting site, and that he knew the Cowley trucks and drivers by sight. He had known them as Cowley employees for years. Brewer testified that Anderson owned only a pick-up truck and that only Cowley owned big trucks and magnetic loaders. The testimony of Emmitt Dubose, Cowley's president, confirms that only Cowley owned big trucks, although he disputes whether a Cowley truck delivered the tank that exploded. Dubose testified that all of the Cowley trucks had the name "Cowley & Brothers, Inc." on the side of the truck. However, Brewer said that he did not recall Cowley's green Mack trucks having the Cowley name on them. Brewer also testified that he never saw any other company's trucks parked at the cutting site except Cowley's.
Brewer testified that at the cutting site Cowley had bins called "roll-off boxes," which would be filled up with scrap iron, and that the Cowley trucks, which had been specially adapted for that purpose, would hook up to them and haul the scrap to Cowley's yard. Dubose testified that Cowley had such bins at many sites throughout Mobile.
The testimony reflects that there was no office, no bathroom, and no scrap cleaning facility at the cutting site. Brown testified that Jim Anderson often used Cowley's office *378 for the business that was generated from the scrap.
Brewer, who had been in the scrap business for 25 years, testified that before such tanks should be scrapped the tanks could be cleaned by various methods, but must be cleaned. He testified that he had never observed any type of cleaning equipment at the cutting site. Brown testified that he is knowledgeable about fuel tanks and that he knew that the tanks had to be either steamed or washed with water to the very top so that they would not blow up when one started to cut them.
Brown testified that on the day prior to the explosion, he arrived at work and found a tank in his cutting lane. He said he was told by Jim Anderson that the tank was clean and that he cut the tank into scrap. On the same day, Brown testified, he specifically recalled that a green truck became stuck in the mud on his cutting lane. He said that although the truck did not have the Cowley name on its side, he recognized it as being a Cowley truck. Brown said it was driven by a "heavyset" black man that Brown recognized because of his having driven a Cowley truck on earlier occasions, and Brown said that he had talked to this man about who the man worked for. Brown testified that he talked to the truckdriver about the tank, and that the driver said it was clean and that it was like the one Brown had cut up that day. Brown stated that he believed the truck driver when the driver told him that the tank had been cleaned and that it was just like the one he had already cut. He said that he did not work on the tank that day because it was raining.
On the morning of November 6, 1986, Brown went to work, hooked up his blow torch, lit it, and heated the tank delivered to him on the previous morning. The tank exploded, knocking him about 10 or 12 feet away from the tank. He was badly burned and was put in great pain. He testified that these injuries have resulted in his being unable to work and being so sensitive to heat and cold that he no longer enjoys recreational activities. James and Diana Godwin both testified to Brown's weakened condition since the accident and to his alleged sensitivity to heat and cold. Expert testimony was given by Dr. Arnold Luterman, M.D., as to Brown's injuries.
Emmitt Dubose, president of Cowley, testified that James Anderson was not an employee of Cowley's, but that Cowley did have a scrap bin located at his yard. Dubose testified that Anderson approached him one day and said that he was going into the scrap business and wanted to know if Cowley would be willing to sell him any scrap. Dubose agreed to sell him large scrap that he could not run through Cowley's shearer and that had to be cut up with a torch. Anderson told Dubose he was going to try to find some property close by. Dubose testified as follows:
Dubose said that he sold large scrap to Anderson, who cut it up and then sold it back to him. He stated that Anderson also bought and sold from Klean Steel. Dubose testified as follows:
Dubose testified that on the day prior to the accident a man named Tony Elmore tried to sell an underground tank to Cowley. Dubose said Cowley would not buy underground tanks because they are too dangerous to deal with.[1] Dubose then testified that he saw the underground tank he had refused to purchase lying right near the bin in the Freeman yard. He said he drove into the yard and saw James Anderson and told him that a man had tried to sell him the tank, but that it was dangerous, and that he would not dare put a torch to it.
Dubose testified that the accident occurred the next morning and that although he did not go to the scene that day, he went there several days later and found the tank Elmore had tried to give him; the end had been blown out. He testified that he contacted Brewer after the lawsuit was filed, and that Brewer told him that the man who brought the tank was Tony Elmore and that Elmore lived in Theodore.
Tony Elmore's testimony was offered by the defense. He testified that he dug up two underground fuel tanks in 1986. He said he did not know the month, but thought it was around November. He testified that he first took them to the Cowley yard but that Cowley did not want the tanks. Elmore said he thought he talked to Dubose on that occasion. Elmore testified that he then went to Freeman Wrecking Company and gave the tanks to some men renting a place from Brewer. Elmore stated in his testimony that he made two trips to Freeman Wrecking Company and rolled the two tanks off by the fence. He said that he did not dump them in a cutting lane, and that his truck did not get stuck in the yard. Elmore also stated that later he offered Brewer some tanks but that he would not accept them. He testified that Brewer said "one of them blew up."
Brewer's testimony disputes this. Brewer testified that he had a conversation with Elmore in November 1986 concerning some tanks for which Elmore had no space, and that Brewer told Elmore to bring them to his yard if they were good tanks. He testified that Elmore brought the tanks and placed them inside the gate. Brewer testified that those tanks are on his yard now being leased to oil recovery people. Both Brewer and Elmore testified that the underground tanks were not dumped on a cutting lane.
Brown based his claim upon actionable negligence. "The necessary elements for recovery under a negligence theory are: (1) duty, (2) breach of duty, (3) proximate cause, and (4) injury." Jones v. Newton, 454 So. 2d 1345, 1348 (Ala.1984), citing Mascot Coal Co. v. Garrett, 156 Ala. 290, 47 So. 149 (1908). See also Rutley v. Country Skillet Poultry Co., 549 So. 2d 82, 85 (Ala. 1989).
Cowley contends that Brown failed to provide substantial evidence that Cowley breached a duty owing to him. We do not agree. Brown was allowed to go to the jury on a single claim. The trial judge rejected Brown's claim that Cowley had a duty to provide Brown with safe working conditions and to deliver steel fabrications *380 that were safe to be cut with torches. The trial judge gave Cowley a directed verdict on Brown's allegation that Cowley had a duty to affirmatively warn Brown that the steel tank had not been thoroughly cleaned and that it was highly combustible and that there was a danger of explosion. The trial judge allowed Brown to go to the jury solely on his claim that Cowley "had a duty not to negligently represent to the Plaintiff that the steel tank had been thoroughly cleaned and was safe to cut for scrap." (C.R. 2.) The trial judge restricted the submission to the jury to the issue of whether Cowley was "guilty of negligence in furnishing to the Plaintiff's employer a tank which was represented by the Defendant to be clean or appropriate for being cut up." (R.T. 284.) When counsel for Cowley objected that there was no misrepresentation count, the trial court allowed the plaintiff to amend to meet the evidence. (R.T. 286.) The trial judge charged the jury as to the negligence claim as follows:
The law imposed no duty upon Cowley's employee to make a statement as to the condition of the steel tank. However, once the Cowley employee undertook to make a representation with regard to the condition of the tank, the law required him to speak the truth; thus a question of fact was presented with respect to whether the representation was true or false and whether it was made intentionally, recklessly, negligently, or innocently. Additionally, a fact issue was presented as to whether the plaintiff acted upon the representation.
The issue was narrowed to the following: Did the employee of Cowley falsely represent the condition of the tank, even though the law did not require him either to warn of any danger that might exist with respect to it, or to disclose any defect that might exist with respect to it? Indeed, the law would not have required the employee, under these facts, to make any representation at all.
If the jury answers this question affirmatively, the law imposes liability. There is one form of action in Alabama, known as a "civil action," in which all claims between the parties should be litigated. Whitehead v. Hester, 512 So. 2d 1297, 1300 (Ala.1987), citing Du Boise v. Brewer, 349 So. 2d 1086 (Ala.1977); Rule 2, A.R.Civ.P. "Alabama law, even prior to the effective date of the Alabama Rules of Civil Procedure, was to the effect that the character of a pleading was determined by its essential substance and not from its description, name or title. See Guaranty Funding Corp. v. Bolling, 288 Ala. 319, 260 So. 2d 589 (1972); Ex parte Jones, 447 So. 2d 709 (Ala.1984)." Whitehead v. Hester, supra, at 1300. Under a common law pleading system, his cause of action would have been misrepresentation of a material fact upon which the plaintiff relied to his detriment. The misrepresentation may have been negligently (or recklessly, or innocently) made. Alabama Code 1975, § 6-5-101.
The trial judge understood that this narrow, factual question was presented, *381 and allowed only this issue to go to the jury. There was substantial evidence presented from which the jury could conclude that an employee of Cowley negligently misrepresented the condition of the steel tank to Brown, who acted upon this misrepresentation to his detriment.
Next, Cowley contends that Brown failed to prove by substantial evidence that the negligent representations made to Brown were made by a Cowley driver acting within the line and scope of his employment. We do not agree. This Court has said that "[i]t is elementary that the test of agency is the right of control, whether exercised or not, and that is a question for the trier of fact if the evidence is in dispute." Cordes v. Wooten, 476 So. 2d 89 (Ala.1985). The trial judge charged the jury as follows:
Whether one is the agent of another is ordinarily a question of fact to be decided by the jury. Daugherty v. M-Earth of Alabama, Inc., 485 So. 2d 1145 (Ala.1986).
The trial court correctly permitted the jury to resolve the conflicts in the evidence. If there is substantial evidence presented, it is the function of the jury, as the finder of facts, to weigh conflicting evidence and inferences, and to determine the credibility of the witnesses. Nowell v. Universal Elec. Co., 792 F.2d 1310, 1312 (5th Cir. 1986), 20 Fed.R.Evid.Serv. 1306 (5th Cir. (Miss.) 1986). As this Court stated in Gleichert v. Stephens, 291 Ala. 347, 280 So. 2d 776, 777 (1973):
Cowley's final argument is that Brown was, as a matter of law, contributorily negligent, and is thus barred from recovering. We have previously stated the law as to contributory negligence:
Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala.1988). Contributory negligence is an affirmative defense that the defendant bears the burden of proving. Rule 8(c), A.R.Civ.P. "In order to sustain a finding *382 of contributory negligence as a matter of law, there must be a finding that the plaintiff put himself in danger's way, Mackintosh Co. v. Wells, 218 Ala. 260, 118 So. 276 (1928), and a finding that the plaintiff appreciated the danger confronted. [Citations omitted.] Moreover, it must be demonstrated that the plaintiff's appreciation of the danger was a conscious appreciation at the moment the incident occurred. [Citations omitted.] Mere `heedlessness' is insufficient to warrant a finding of contributory negligence as a matter of law. [Citations omitted.]" Central Alabama Elec. Co-op. v. Tapley, 546 So. 2d 371, 381 (Ala. 1989). The evidence presented does not require a finding of contributory negligence.
Our review of the record convinces us that there was substantial evidence presented to uphold this jury verdict. The trial court did not err in denying Cowley's motion for a directed verdict, its motion for a JNOV, and its motion for a new trial. A motion for a directed verdict and a motion for a JNOV should be denied if there is any conflict in the evidence for a jury to resolve. Black Belt Wood Co. v. Sessions, supra, at 1251.
The trial court must view the entire evidence, and all reasonable inferences that a jury might have drawn therefrom, in the light most favorable to the non-moving party. See Central Alabama Elec. Co-op. v. Tapley, supra, at 378. The jury's verdict, if supported by the evidence, is presumed to be correct, and that presumption is strengthened by the trial court's denial of the motion for a new trial. Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51, 52 (Ala.1989); Merrell v. Joe Bullard Oldsmobile, Inc., 529 So. 2d 943, 946 (Ala.1988). The judgment of the trial court is due to be affirmed.
AFFIRMED.
MADDOX, JONES, ALMON and ADAMS, JJ., concur.
STEAGALL, J., concurs in the result.
[1] Brewer's testimony contradicts this. Brewer was asked, "Now do you recall Cowley ever bringing any tanks in, any underground tanks to be scrapped?" He replied, "Yes sir." (R.T. 34-35.) | September 28, 1990 |
c2ae7fde-94d4-45a1-96f9-33eb7ca8eede | Sides v. State | 574 So. 2d 859 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 859 (1990)
Ex parte State of Alabama.
(Re Ben Alton SIDES v. STATE).
89-1349.
Supreme Court of Alabama.
November 16, 1990.
Rehearing Denied January 11, 1991.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for petitioner.
John T. Kirk, Montgomery, for respondent.
ALMON, Justice.
Ben Alton Sides was convicted of driving under the influence of alcohol and of speeding. The Court of Criminal Appeals held that the admission of evidence regarding the results of a Horizontal Gaze Nystagmus ("HGN") test, without a proper predicate showing the test's reliability, was reversible error. For a statement of the facts see Sides v. State, 574 So. 2d 856 (Ala.Cr.App.1990). This Court granted the State's petition for the writ of certiorari.
After reviewing the record and considering the arguments offered by the State and by Sides, this Court concludes that the Court of Criminal Appeals correctly determined that the admission of the HGN test evidence was not harmless error. 574 So. 2d at 859. While we agree with that holding, we do not necessarily agree with the implicit holding that HGN test results would be admissible in future cases if the State laid the proper predicate. This Court has not been presented with sufficient evidence concerning the test's reliability or acceptance by the scientific community to address that question.
*860 For the reasons stated above, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS and HOUSTON, JJ., concur. | November 16, 1990 |
f76ca309-9dd7-4f92-a67a-2eb3e8c3c2b8 | Leisure Amer. Resorts v. Carbine Const. | 577 So. 2d 409 | N/A | Alabama | Alabama Supreme Court | 577 So. 2d 409 (1990)
LEISURE AMERICAN RESORTS, INC.
v.
CARBINE CONSTRUCTION COMPANY, INC.
89-574.
Supreme Court of Alabama.
October 26, 1990.
Rehearing Denied March 22, 1991.
Kenneth Lee Cleveland of Cleveland & Cleveland, Birmingham, for appellant.
Rodney B. Slusher, Florence, for appellee.
ADAMS, Justice.
Leisure American Resorts, Inc. ("Leisure American"), appeals from a judgment entered against it after a jury returned a verdict for Carbine Construction Company ("Carbine") in Carbine's suit against Leisure American for breach of contract. We affirm.
In August 1983, Leisure American was owned in equal shares by two individuals. Winston Biggs, one of the owners, was also a director of the corporation. At that time, Mr. Biggs was also the sole owner of a corporation called Bileco, Inc. Prior to August 1983, Leisure American and Bileco occupied office space in separate buildings in Florence, Alabama.
Sometime in August 1983, officials of both corporations, including Winston Biggs; James Hough, president of Leisure American; and Richard Stafford, chief financial officer for Leisure American, met with Eugene Carbine of Carbine Construction Company regarding renovations to be performed on a building owned by Winston Biggs and another individual. The object of the renovation was to facilitate a proposed joint occupancy of the building by Bileco and Leisure American. A principal element of the renovation was the construction *410 of a partition between the areas to be occupied by the respective companies. In addition, Carbine was to paint, clean the carpets, put in plasterboard and wallpaper, and add a window on the side to be occupied by Leisure American. Carbine agreed to renovate the building on a "cost plus" basis. It is undisputed that none of the officials expressly agreed to pay Carbine for the work.
Carbine worked on one side of the building at a time, completing the remodeling of the side to be occupied by Bileco in September or early October. Bileco moved its offices into the building in October or November 1983. The work on the side to be occupied by Leisure American was performed in December and that company moved its offices into the building just before Christmas.
In January or February 1984, after Leisure American had moved its offices into the building, it called Carbine back to install some bookcases in the area occupied by its employees. Carbine completed the work on the bookcases and on February 27, 1984, sent out a billing invoice for the bookcases in the amount of $1,508.20. It is undisputed that Leisure American never denied responsibility for the work done on the bookcases.
When all of the work was completed, the two companies shared a common reception area and a common receptionist. A visitor entering the building would turn right to go into the space occupied by Bileco and would turn left to go into the area occupied by Leisure American.
As might be expected under these circumstances, responsibility for the cost of the renovations for Leisure American was disputed from the beginning. Most of the testimony at trial focused on which company first received a bill for the work. Evidence on that issue often conflicted sharply. James Hough testified that the bill for the renovations on the Leisure American side was "pushed back and forth" between the offices of Bileco and Leisure American, as both companies disclaimed responsibility for the bill. There was evidence that Bileco paid for the renovations done on its side of the building.
On June 6, 1985, while the bill for the renovation was being "pushed back and forth," Mr. Carbine signed an agreement with Leisure American, the text of which read:
On March 16, 1988, Carbine sued Leisure American for $21,072.67 on counts based on breach of contract, account stated, and work and labor done. The trial judge submitted the breach of contract claim to the jury and directed a verdict for Leisure American on the other two counts. The jury returned a verdict for Carbine in the amount of $19,564.47. The trial judge failed to rule within 90 days on Leisure American's motions for JNOV or new trial, and those motions were deemed denied by operation of law. Ala.R.Civ.P. 59.1.
Leisure American presents only two issues for review. First, it contends that the June 6, 1985, agreement, as a matter of law, constitutes an accord and satisfaction of the disputed claim for the office renovation. Second, it argues that the renovation amounted to a sale of goods and that, as a matter of law, recovery on the oral agreement is barred by the Uniform Commercial Code's statute of frauds provision. Leisure American further asserts that the trial *411 judge erred in denying its motion for a new trial, because, it argues, the verdict for Carbine on the breach of contract claim was against the great weight of the evidence.
A motion for JNOV tests the sufficiency of the evidence and "should be denied if there is any conflict in the evidence for the jury to resolve." Black Belt Wood Co. v. Sessions, 514 So. 2d 1249, 1251 (Ala.1986). The existence of a conflict in the evidence is to be determined by the "substantial evidence rule." Ala.Code 1975, § 12-21-12. We shall first examine whether, regarding the two issues presented by Leisure American, the trial judge erred in refusing to rule for Leisure American as a matter of law.
An accord and satisfaction is an agreement reached between competent parties regarding payment of a debt the amount of which is in dispute. Limbaugh v. Merrill Lynch, Pierce, Fenner & Smith, 732 F.2d 859, 861 (11th Cir.1984); O'Neal v. O'Neal, 284 Ala. 661, 227 So. 2d 430 (1969). There can be no accord and satisfaction "without the intentional relinquishment of a known right." Id. at 663, 227 So. 2d at 431.
Like any other contract, a valid accord and satisfaction requires consideration and a meeting of the minds regarding the subject matter. Bank Indep. v. Byars, 538 So. 2d 432, 435 (Ala.1988); Farmers & Merchants Bank of Centre v. Hancock, 506 So. 2d 305, 310 (Ala.1987); Austin v. Cox, 492 So. 2d 1021, 1022 (Ala.1986); Ray v. Alabama Central Credit Union, 472 So. 2d 1012, 1014 (Ala.1985).
Whether the parties have reached an accord and satisfaction is almost always a question for the jury. Austin, 492 So. 2d at 1022; see also Farmers & Merchants Bank of Centre v. Hancock, 506 So. 2d 305 (Ala.1987); Stephenson Brick Co. v. Bessemer Eng'g & Constr. Co., 218 Ala. 325, 118 So. 570 (1928); W.B. Davis Hosiery Mill, Inc. v. Word Lumber Co., 49 Ala. App. 492, 273 So. 2d 469 (1972), cert. denied, 290 Ala. 372, 273 So. 2d 474 (1973).
The issue in this case is whether the parties ever reached any agreement regarding the disputed sumthe amount due for the office renovations. The record reflects substantial evidence, much of it contradictory, from which the jury could have found that the parties reached no such agreement.
For example, the verdict indicates a finding that the $21,072.67 reflected amounts due on entirely separate accountsa liquidated debt of $1508.20 for construction of the bookcases and an unliquidated claim of $19,564.47 for office renovations. In that case, any agreement reached between the parties regarding payment of the $1508.20 would not have effected an accord and satisfaction on a separate debt owing for the office renovations.
Indeed, evidence indicated that Carbine performed a number of assorted jobs for Leisure American at various times and at various locations, including Gulf Shores, Talladega, and Florence. Leisure American received a number of bills from Carbine during 1984 for various jobs performed by Carbine. The office space was renovated in October and November 1983, before Leisure American moved its offices into the building, as a necessary prerequisite to the relocation; the work on the bookcases was done after the relocation. The former bookkeeper for Leisure American testified that the invoice of February 27 for $1,508.20, represented a transaction separate from that of the office renovations. Counsel for Leisure American conceded that the work for the bookcases was billed separately from that for the office renovations. The bill for the renovations was disputed from the beginning, while Leisure American never denied liability for the work done on the bookcases.
In addition, the agreement signed on June 6, alleged to constitute an accord and satisfaction, expressly referred only to the $1508.20 debt evidenced by the February 27 invoice. The jury could have found, and apparently did find, that the undisputed amount of $1508.20 shown on the February 27 invoice and payment under the June 6 agreement represented the exact amount due for the construction of the bookcases *412 and did not implicate the disputed amount due for office renovation.
In short, evidence elicited at trial amply supported a finding that the parties failed to reach an accord and satisfaction because of the absence of mutual assent regarding the subject matter of the June 6 agreement. The trial judge did not err, therefore, in denying Leisure American's motion for JNOV on the issue of accord and satisfaction.
Leisure American next contends that Carbine's claim is a claim based on an oral "transaction in goods" valued at $500 or more. Consequently, it contends that the entire claim is barred by Ala.Code 1975, § 7-2-201, the Uniform Commercial Code's statute of frauds. In its brief, it argues that the disputed amount due for the office renovations includes approximately $4,808.07 worth of "goods" and that the trial judge erred in denying its motion for JNOV on the statute of frauds issue.
The trial judge instructed the jury on Leisure American's statute of frauds defense in the following manner:
More specifically, Ala.Code 1975, § 7-2-201(3)(c) provides: "A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable ... [w]ith respect to goods for which payment has been made and accepted or which have been received and accepted."
This section serves to "validate the contract only for the goods which have been accepted." Id. comment 2. Thus, it follows that receipt and acceptance by one party of all of the goods or performance of the other party validates the entire contract. "Receipt and acceptance ... of goods ... constitute[s] an unambiguous overt admission by both parties that a contract actually exists." Id.; Dykes Restaurant Supply, Inc. v. Grimes, 481 So. 2d 1149, 1150 (Ala.Civ.App.1985); see also Trimble v. Todd, 510 So. 2d 810 (Ala.1987).
The Uniform Commercial Code defines "acceptance" as follows:
Ala.Code 1975, § 7-2-606. A cursory reading of this section reveals that the issue whether the buyer has accepted the goods is fact specific. Such matters fall squarely within the province of the jury. Engle Mortgage Co. v. Triple K Lumber Co., 56 Ala.App. 337, 341, 321 So. 2d 679, 682 (Ala. Civ.App.1975).
In this case, the jury could have found a valid acceptance, based on testimony elicited at trial. For example, the evidence tended to show that the office renovations were completed in December 1983, in anticipation of occupation by Leisure American upon completion of the work. The president of Leisure American testified that he personally pointed out the specific improvements and renovations to be done to the portion of the building to be occupied by Leisure American, and he testified that Carbine's performance was satisfactory. Evidence also indicated that immediately after the work was completed, Leisure American moved its offices into the renovated area and that it continued to occupy those offices without any complaint about Carbine's performance.
Carbine contends that the renovation constituted a service and, therefore, falls *413 outside the coverage of the Uniform Commercial Code provision. However, it is unnecessary for us to decide, and we do not decide, whether the Uniform Commercial Code applies in this case, because even if it did, the evidence was sufficient to allow the jury to determine that Leisure American had received and accepted the "goods." That being so, regardless of how we characterize the contract involved in this case, the statute of frauds would be no bar to Carbine's claim. Therefore, the trial judge did not err in denying Leisure American's motion for JNOV.
Regarding Leisure American's contention that the verdict finding a breach of contract was against the great weight of the evidence, we note the following well established rule:
Green Oil Co. v. Hornsby, 539 So. 2d 218, 219 (Ala.1989); Jawad v. Granade, 497 So. 2d 471, 474 (Ala.1986).
After a careful review of the record, we are unable to say that the verdict was against the great weight of the evidence. An implied-in-fact contract arises where all of the circumstances surrounding the transaction, including the prior relationship and the former course of dealing of the parties, and the "common understanding of men, show a mutual intent to contract." Water Works & Sanitary Sewer Bd. of Montgomery v. Norman, 282 Ala. 41, 45, 208 So. 2d 788, 791 (1968); Broyles v. Brown Eng'g Co., 275 Ala. 35, 38, 151 So. 2d 767, 770 (1963).
In the instant case, James Hough was president of Leisure American at the time of the August meeting with Eugene Carbine. There was evidence that for a number of years Mr. Carbine had been acquainted with Mr. Hough in Mr. Hough's capacity as president of Leisure American and that Carbine had done construction work for Leisure American through Mr. Hough before the transaction that gave rise to this action. Mr. Carbine testified that Mr. Hough contacted him and set up the August meeting in which the transaction was discussed.
Mr. Hough testified that during the August meeting, he, Richard Stafford, and Philip Williams "walked" Mr. Carbine through the area to be occupied by Leisure American and pointed out the work to be done. More specifically, Mr. Hough testified that he told Mr. Carbine: "Gene, I got to have a window in my office." There was testimony that Winston Biggs, in a similar manner, directed the work to be done on the Bileco side of the building.
Although the record contains evidence from which the jury could have reached a different result, we conclude that, under the circumstances of this case, the evidence supports a finding that an implied-in-fact contract arose as a result of the meeting in August between Eugene Carbine and executive officials of Leisure American, and that Leisure American breached that contract by its failure to pay Carbine. When a motion for a new trial is grounded upon the contention that the verdict is against the great weight of the evidence, we will not reverse a trial judge's denial of the motion if "evidence [is] presented that, if believed, would support the verdict." Stokes v. Long-Lewis Ford, Inc., 549 So. 2d 51, 52 (Ala.1989). In such a case, "the trial court's action in denying the motion would not be a clear abuse of some legal right and the record would not plainly and palpably show that the trial court was in error." Id. Because we can find no clear abuse in this case, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | October 26, 1990 |
a3aa56e0-ad40-4d24-919d-72c72be20fdb | Specialty Container Manufacturing, Inc. v. Rusken Packaging, Inc. | 572 So. 2d 403 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 403 (1990)
SPECIALTY CONTAINER MANUFACTURING, INC.
v.
RUSKEN PACKAGING, INC., et al.
89-846.
Supreme Court of Alabama.
November 2, 1990.
*404 Michael A. Figures of Figures, Jackson and Harris, Mobile, for appellant.
M. Lloyd Roebuck of Kilborn & Roebuck and M.A. Marsal and Clifford C. Sharpe, Mobile, for appellee Merchants Transfer Co., Inc.
KENNEDY, Justice.
Specialty Container Manufacturing, Inc. ("Specialty"), filed an action against Rusken Packaging, Inc. ("Rusken"); Merchants Transfer Company, Inc. ("Merchants"); Coastal Container, Inc. ("Coastal"); Bobby Rusk; and Gregory Rusk, alleging breach of contract, misrepresentation, tortious interference with business and contractual relations, and unfair business practices; the action also sought the return of certain equipment or, alternatively, damages for the value of that equipment. Specialty originally included Southern Aluminum Casting, Inc., as a defendant in the action but later voluntarily dismissed that corporation. The trial court entered summary judgment for all of the defendants on all of Specialty's claims.
Specialty filed its action on June 9, 1988, and, accordingly, in order to defeat a properly supported summary judgment motion, it must offer substantial evidence to show a genuine issue of material fact. Ala.Code 1975, § 12-21-12; Home Bank of Guntersville v. Perpetual Federal Savings & Loan Association, 547 So. 2d 840 (Ala.1989). In determining whether there is substantial evidence to defeat a summary judgment motion, this Court reviews the record in the light most favorable to the non-movant and resolves all reasonable doubts against the movant. Sanders v. Kirkland & Co., 510 So. 2d 138 (Ala.1987).
*405 The evidence, viewed in the light most favorable to Specialty, indicates that on June 9, 1986, in response to an offer by Albert Joyner, vice president of Specialty, to sell that company for $257,000, Mike Rose, who allegedly represented to representatives of Specialty that he was Rusken's general manager, and Gregory Rusk visited Specialty's offices in Mobile. Rose indicated to Joyner that he was a principal with Gregory and Bobby Rusk in Rusken. Specialty avers that before Gregory Rusk returned to Cullman on the evening of June 9, 1986, he and Rose stated that the Rusks and Rusken would buy Specialty for $200,000.
Rose remained in Mobile and visited Specialty's offices the next morning. He allegedly told Joyner and Mary Marvin Anderson, Specialty's accountant, "We have a deal." Rose proceeded to interview Specialty's employees to determine who the new owners would and would not retain. Sherwood Helms, who Specialty calls its "key sales representative," testified that during his interview Rose had indicated that Specialty had been sold and that Rose was in the process of determining who to retain and who to fire. Helms quit working for Specialty two weeks after talking to Rose. Rose interviewed many of Specialty's other workers, including Specialty's production manager, Jim Cruthirds. Rose allegedly told Cruthirds that he did not like anything he saw and that he seriously doubted that Cruthirds would continue to be employed at Specialty. Cruthirds also quit, although he eventually returned to work when the purchase did not occur.
Rose then obtained Specialty's customer lists, accounts receivable, and some of Specialty's orders and returned to Cullman. Later, he contacted Joyner to say that the Rusks and Rusken would not purchase Specialty for $200,000. On Tuesday night Rose and Gregory Rusk offered Joyner $75,000 for Specialty, and Joyner, although he testified that he considered the offer "obscene," agreed to consider it. The next morning Joyner proposed that the buyers give Specialty $50,000 cash, provide another $50,000 in 90 days if necessary, and provide a line of credit. It is unclear whether the Rusks and Rusken rejected this proposal; in any event, Joyner states that later that morning the Rusks and Rusken went back to their original offer of $200,000. Gregory Rusk told Joyner that Rose would come to Specialty the next day to complete the sale. The next day, at about 1:00 p.m., Rose called and said there was no deal. Although Specialty went out of business shortly after this breakdown of negotiations, Specialty resumed negotiations with the Rusks and Rusken, and Gregory and Bobby Rusk purchased most of Specialty's equipment for $102,500.
Specialty argues that the trial court erred by entering summary judgment on its claim that Rusken and Gregory and Bobby Rusk, individually, breached an oral contract to buy Specialty. We do not address whether the breach of contract action was barred by the Statute of Frauds; instead, we resolve Specialty's argument on other grounds. The evidence, even viewed as we have stated it herein the light most favorable to Specialtyindicates that Specialty and the Rusks and Rusken were engaged in a series of proposals and counter-proposals, all of which ended in a temporary breakdown of negotiations. Specialty did not present substantial evidence to rebut the Rusks and Rusken's showing that there was no contract. The trial court properly entered summary judgment on that claim, and as to that claim the judgment is due to be affirmed.
Specialty contends that the trial court erred by entering summary judgment on its claim that both Rusken and Bobby and Gregory Rusk, individually, misrepresented their intentions to buy Specialty in order to obtain confidential business information about Specialty that would give them an unfair competitive advantage or superior bargaining power.
Although the parties discuss Specialty's claims in terms of all of the evidence against all of the defendants, to analyze the case properly, we initially address whether Specialty has produced sufficient evidence to establish that Rusken and Gregory Rusk and Bobby Rusk, individually, *406 are subject to Specialty's claims. Specialty's claims against Gregory Rusk, individually, are permissibly based on Gregory Rusk's activities in relation to the claims. With regard to Specialty's claims against Bobby Rusk, individually, and Rusken, Specialty's arguments indicate that the claims are based on the actions of Rose and Gregory Rusk as agents of Bobby Rusk and Rusken. The record, viewed in the light most favorable to Specialty, indicates that Rose was the general manager of Rusken. Bobby Rusk, president and principal owner of the defendant businesses, stated that he gave Gregory and Rose permission to go to Mobile on June 9. Bobby Rusk stated that he knew that Rose and Gregory were going to see Joyner, that he knew that Rose and Gregory contacted Joyner, and that he knew that Rose returned to Cullman with Specialty's accounts payable and accounts receivable. Bobby Rusk instructed Rose to contact Joyner to inform him that the Rusks and Rusken were not going to purchase the business. Considering all of this evidence, we hold that Specialty presented substantial evidence that Gregory Rusk and Rose were acting as agents of Bobby Rusk and Rusken with apparent authority to act on their behalf.
In relation to Specialty's misrepresentation claim, the evidence, viewed in the light most favorable to Specialty, indicates that Rose told both Joyner and Specialty's accountant that the Rusks and Ruskens had agreed to purchase Specialty. Rose interviewed Specialty's employees and indicated to them during those interviews that Specialty had been sold; as a consequence of those interviews, both Specialty's leading salesman and its production manager resigned. Rose obtained from Specialty its customer lists, customer orders and specifications. By June 12, 1986, Rose had visited at least three of Specialty's customers and had told them that Specialty was going out of business, that it was bankrupt, and that it could no longer deliver its products.
The Rusks and Rusken cite Duke v. Jones, 514 So. 2d 981 (Ala.1987), and Dembitsky v. Gamble, 480 So. 2d 1219 (Ala. 1985), for the proposition that Specialty cannot maintain its misrepresentation action, both because the negotiations took place over two months' time between experienced businessmen and because one cannot recover for fraud when a business transaction merely goes sour. Even if those cases stand for that proposition, they are distinguishable from the present case. The fraud claim in Duke was based on details involved in an existing contract; the claim was based on alleged misrepresentations by the buyer of a corporation to the seller concerning the method for repayment of promissory notes that the buyer gave to the seller. The Court held that the seller could not recover. The misrepresentation claim in this case concerns Rose's alleged statements to Specialty and its customers that a contract for the sale of Specialty existed while Gregory and Bobby Rusk at the same time were negotiating with Specialty on the terms of a contract that they argue was never formed. Dembitsky is also distinguishable. In Dembitsky, a business deal merely "went sour." The record indicates that it is for the jury to determine whether this action involves more than simply a business deal "going sour."
The Rusks and Rusken argue that Specialty cannot prove damages, because "the business was already facing its demise." The record indicates that Specialty was in unstable, perhaps bad, financial condition, before the June 1986 negotiations. Specialty showed a $182,000 loss for the preceding 10 months and accounts payable of $163,856. That poor financial condition, however, does not, as a matter of law, make it impossible for Specialty to have been damaged by the actions of the Rusks and Rusken. Specialty presented evidence that the actions of Rose and the Rusks resulted in the destruction of the good will, as well as other assets, of Specialty's business, except for its equipment; Specialty sold most of its equipment to the Rusks and Rusken. That evidence was sufficient to rebut the Rusks and Rusken's attempt to show that Specialty had no damages upon which to base its misrepresentation claim.
*407 The Rusks and Rusken argue convincingly that they did not form a contract with Specialty for the purchase of that corporation, but, instead that they were engaged in ongoing negotiations with Specialty from June 9, 1986, until August 1986, when they purchased Specialty's equipment. That argument, accordingly, indicates that the actions by Rose occurred during a period of ongoing negotiations between Specialty and the Rusks and Rusken. Considering that Rose's actions, which a jury might conclude were conducted on behalf of the Rusks and Rusken, were conducted during what the Rusks and Rusken themselves characterize as a period of ongoing negotiations, we hold that Specialty presented substantial evidence of its misrepresentation claim and that, inasmuch as there is conflicting evidence supporting both Specialty's argument and the argument of the Rusks and Rusken, there exist genuine issues of material fact, suitable for jury determination. The trial court erred by entering summary judgment for Gregory Rusk, Bobby Rusk, and Rusken on Specialty's misrepresentation claim, and as to those defendants on that claim the judgment is due to be reversed.
Specialty argues that the trial court erred by entering summary judgment for both Bobby Rusk and Gregory Rusk individually and for Rusken on its claims of intentional interference with both contractual and business relations. Specialty specifically alleges that those defendants interfered with contractual and business relations between it and Southern Aluminum Casting, Inc., Merchants Transfer Company, Inc., Dimensional Products, Inc., Emperor Clock Company, Inc., and Sherwood Helms.
To prove its prima facie case, Specialty must show:
Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala.1986).
Our earlier discussion of the evidence supporting Specialty's misrepresentation claim concerned the evidence that Specialty argues is proof of this claim; we must additionally discuss the evidence concerning Merchants, however. Merchants was the lessor of Specialty's building. The evidence, viewed in the light most favorable to Specialty, indicates that Rose contacted Merchants' real estate agent and indicated that Specialty would be going out of business. Although Specialty's rent payments were current, Merchants, on June 30, 1986, changed the locks on the doors to Specialty's business. Merchants required Specialty to pay rent for the next month before it would allow Specialty to re-enter the premises.
In addition to Rose's action in relation to Merchants, the evidence, viewed in the light most favorable to Specialty, also indicated that he contacted the other named businesses and told those businesses that Specialty was going out of business, that it was bankrupt, and that it could not deliver the products that they had ordered. The evidence indicated that he did these things while he had in his possession Specialty's customer lists, accounts receivable, and some of Specialty's orders. Sherwood Helms himself testified that Rose indicated that Specialty had been sold and that Rose was in the process of reevaluating which employees were to be retained. We hold that Specialty presented substantial evidence of its claims of interference with business and contractual relations.
The Rusks and Rusken argue that any interference was justified. Justification for interference with contractual or business relations is an affirmative defense, Gross v. Lowder Realty, at 597, and "legitimate economic motives and bona fide business competition qualify as justification for intentional interference with a competitor's business," Bridgeway Communications, *408 Inc. v. Trio Broadcasting, Inc., 562 So. 2d 222 (Ala.1990). The Rusks and Rusken argue that they were entitled to inquire concerning the market in Mobile and to verify the amount of business that Joyner claimed Specialty was conducting. The evidence indicates that Rose's actions, however, went further than inquiring into the Mobile market and verifying the amount of Specialty's business; when the evidence is viewed in the light most favorable to Specialty, it indicates that Rose told Specialty's customers that Specialty was going out of business, that it was bankrupt, and that it could not deliver the products that they had ordered. The Rusks and Rusken seem to argue that such statements were justified because they were true. Whether the statements were indeed true and whether even if they were true they constitute justification is a question suitable for jury determination. The trial court erred by entering summary judgment for Gregory Rusk, Bobby Rusk, and Rusken on Specialty's claim for interference with business or contractual relations, and as to that claim the judgment is due to be reversed.
Specialty argues that the trial court erred by entering a summary judgment for both Gregory Rusk and Bobby Rusk individually and Rusken on its claim that those defendants engaged in unfair business practices to reduce the value of Specialty so that they could buy it for less. We have discussed fully the evidence supporting this claim, and we hold that Specialty presented substantial evidence to support it. The trial court erred by entering summary judgment for Gregory Rusk, Bobby Rusk, and Rusken on this claim, and as to it the judgment is due to be reversed.
Specialty argues that the trial court erred by entering summary judgment for Gregory Rusk, Bobby Rusk, Rusken, and Coastal on Specialty's claim for return of equipment or, alternatively, damages for the value of the equipment. Based on the pleadings, this claim seems to be the only claim that Specialty alleges that Coastal is liable for, and it is certainly the only claim for which Specialty presents sufficient evidence against Coastal to withstand summary judgment. Coastal, which took over possession of Specialty's warehouse, admitted that the equipment that Specialty seeks to have returned remained in the warehouse and that that equipment belonged to Specialty. Specialty presented substantial evidence against Coastal to support its claim, and the trial court erred when it entered summary judgment for Coastal on this claim. As to this claim against Coastal, the judgment is due to be reversed. As to the other defendants on this claim, it is due to be affirmed.
Finally, Specialty argues that the trial court erred when it entered summary judgment for Merchants on Specialty's claim alleging breach of a lease contract. As we discussed earlier, viewed in the light most favorable to Specialty, the evidence indicates that Specialty and Merchants had contracted for the lease of a building; that based on Rose's representations to its real estate agent on June 30, 1986, Merchants changed the locks on the leased premises; that Specialty was current in its rental payments and not otherwise in default when Merchants took this action; that Merchants demanded that Specialty pay the next month's rent in advance before it would allow Specialty to enter the premises again. The evidence does not support Merchant's contention that, as a matter of law, Specialty was in default according to the lease because Specialty abandoned the lease or removed furniture from the building. The record does not indicate whether Specialty left the premises, whether Specialty left the premises temporarily because it was locked out, or whether Specialty removed equipment or furniture that the lease stated should not be removed. Accordingly, whether Specialty was in default under the lease agreement is a genuine issue of material fact, suitable for jury determination. Specialty presented substantial evidence of its claim against Merchants, and the trial court erred when it entered summary judgment for Merchants. As to Specialty's claim against Merchants, the judgment is due to be reversed.
*409 The judgment is affirmed in part and reversed in part, and the cause is remanded.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES and SHORES, JJ., concur.
HOUSTON, J., concurs in the result. | November 2, 1990 |
c74607eb-1d52-4dd1-a903-a00145a7c10e | BP Oil Co. v. Jefferson County | 571 So. 2d 1026 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1026 (1990)
BP OIL COMPANY, et al.
v.
JEFFERSON COUNTY, Alabama, et al.
89-773.
Supreme Court of Alabama.
October 19, 1990.
Rehearing Denied December 21, 1990.
Thad G. Long and Scott D. Cohen of Bradley, Arant, Rose & White, Birmingham, for appellants.
Charles S. Wagner, Asst. County Atty., Birmingham, for appellees.
SHORES, Justice.
This is an appeal from a final judgment of the Circuit Court of Jefferson County denying the application of the appellants *1027 (hereinafter the "property owners")[1] for a change of zoning.
The property owners sought a change in zoning of a 2.4-acre parcel of undeveloped land that lies in the southeast quadrant of the intersection of Interstate Highway 65 and West Lakeshore Drive. The parcel lies west of Green Springs Highway and south of West Lakeshore Drive in the unincorporated territory of Jefferson County. Although the county planning staff and the commission member representing this area of the county recommended a change in zoning from "C-P preferred commercial" (a classification permitting office buildings, but not permitting automobile service stations) to "C-1 commercial" (a classification permitting service stations), the Jefferson County Commission denied the application for change. The property owners brought an action in the circuit court to review the decision of the county commission, and, after an extensive hearing, the trial court denied relief. This appeal followed.
Although the interchange at 1-65 and West Lakeshore Drive has only recently been completed, it was in the planning stage for many years. In anticipation of the completion of the interchange, West Lakeshore Drive was converted to a four-lane road, with a median. The traffic on West Lakeshore Drive had increased from less than 1,000 vehicles per day to 13,400 per day at the time of the hearing below, with 14,000 per day projected. West Lakeshore Drive is expected to be extended to Bessemer, and major development is expected in the area, much of which is already underway. For example, just west of 1-65 and south of West Lakeshore Drive is a Sam's Wholesale Club store and a Wal-Mart store, and warehouses for Bruno's and Parisian's are under construction.
Just south of West Lakeshore Drive, on the east side of Green Springs Highway, a major development known as University Park has been approved by the City of Homewood. This development will include a mix of office buildings, residences, and commercial development, where service stations will be permitted. The new four-lane West Lakeshore Drive was designed with a service road, which lies between the property involved here and the four-lane drive to provide smooth traffic flow.
There was testimony that the subject property is unsuited for development of an office building because the small size of the lot prevents adequate parking and other amenities. One of the property owners testified that he had tried unsuccessfully to develop the site for office use, which its present classification would authorize.
Five experts testified. All of them stated that commercial development of the property as a service station would not have an adverse affect on the area or on traffic at the site. General Henry Graham, a widely respected expert appraiser and developer, testified that he was familiar with the property and that he had made a study and report concerning appropriate development of the site. He stated:
He also stated:
Another expert testified that he had made a study of the intersections along the *1028 interstate system in Jefferson County, which includes I-59, I-20 and I-65, and that he had found that every intersection with a service road, like the subject property, had a service station except the intersection at West Lakeshore Drive and I-65. He said:
All of the expert witnesses agreed that commercial retail zoning was appropriate for the property. All of the experts, except one, testified that C-1 commercial was the most appropriate classification. There was no testimony that the rezoning would adversely affect the surrounding community.
There are five residences about 350 feet north of West Lakeshore Drive. A stand of evergreen trees acts as a buffer between West Lakeshore Drive and these residences. There was no evidence that rezoning the subject property to permit a service station would adversely affect these residences. In fact, Mr. Robert House, a 15-year veteran city planner and expert, stated:
It is no longer subject to debate that governmental entities have the authority to zone within the police power. Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926). However, a zoning ordinance may be invalid as applied to a particular parcel of land if the application of the regulation to the land bears no substantial relationship to the objects of the police power. What are the objects of the police power? The promotion of the health, safety, morals, and general welfare of the community. Leary v. Adams, 226 Ala. 472, 147 So. 391 (1933). In Hall v. Jefferson County, 450 So. 2d 792 (Ala.1984), this Court said that "property ownership should, and does, bring with it freedom to use one's possession as the owner deems appropriate, subject, of course, to reasonable restraints for the general health, safety or public welfare," and that "Absent the need for such reasonable impediments, the landowner's `bundle of rights' should remain inviolate." Id. at 796. No evidence has been offered to show that the denial of the application for a zoning change in this case has any substantial relationship to the objects of the police power. The evidence is all to the contrary.
That being the case, we need not advance to the question of whether it is fairly debatable that the general welfare is promoted by the application of the zoning classification in this case. In Byrd Companies, Inc. v. Jefferson County, 445 So. 2d 239 (Ala. 1983), this court adopted the two standards set out in Hall v. Jefferson County, supra, and cited with approval Davis v. Sails, 318 So. 2d 214 (Fla.App.1975). Byrd Companies explained the two rules in the following language:
445 So. 2d at 247.
In this case, the burden was on the zoning authority to demonstrate that the challenged zoning restriction on the owners' use of their property had a substantial relation to a legitimate public purpose, i.e., that the restriction had a substantial relation to the health, safety, morals, or general welfare. The zoning authority did not carry that burden. To the contrary, the undisputed evidence was that a change in zoning would not adversely affect any interest that is a proper concern of the police power. The evidence showed that the proposed rezoning would not increase traffic; would not cause environmental problems; would not adversely affect the value of nearby properties; and would not increase any hazards associated with flooding. The evidence also was that dramatic changes in the neighborhood made the proposed zoning appropriate, inevitable and imminent, and that benefits to the community would result from the proposed rezoning.
Because the zoning authority failed to establish a substantial relationship to a legitimate governmental purpose in denying the application for a change in zoning, we are constrained to reverse the judgment and remand the cause for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] The property owners are BP Oil Company, Leslie B. Adams, James T. Johnson, Jr., and C. Austin Johnson. | October 19, 1990 |
1a13eeba-2cfc-4258-905a-0d59a86ad23e | Ex Parte Weaver | 570 So. 2d 675 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 675 (1990)
Ex parte Mike WEAVER, as Commissioner of Insurance of the State of Alabama.
(Re Martha H. SANDERSON, et al. v. BLUE CROSS AND BLUE SHIELD OF ALABAMA, et al.)
89-418.
Supreme Court of Alabama.
October 12, 1990.
*676 H.E. Nix, Jr. and Alex L. Holtsford, Jr. of Nix & Holtsford, Montgomery, for petitioner.
J. Doyle Fuller, Montgomery, N.S. Hare, Monroeville, C. Knox McLaney III, Montgomery, Gareth A. Lindsey, Elba, and Don Siegelman, Atty. Gen., for respondents.
Lawrence B. Clark and Duncan B. Blair of Lange, Simpson, Robinson & Somerville, Birmingham, for respondent Blue Cross and Blue Shield of Alabama.
Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for amici curiae Tandy D. Little, James D. Martin, Robin Roland Rea, David P. Rumbarger, Lisa Walsh Shivers, James M. Sizemore, Jr., George Robinson Swift, Jr., Zack Thompson, Oscar DePriest Tucker and Thomas H. Wells.
Richard F. Allen of Capell, Howard, Knabe & Cobbs, Montgomery, for amici curiae John G. Allen, Director, Dept. of Indus. Relations, Joel Barfoot, Director, State Bd. of Pardons & Paroles, Fred O. Braswell III, Director, Alabama Dept. of Economic and Community Affairs, Bill Brock, Director, State Emergency Management Agency, John B. Dutton, Director, Alabama State Docks Dept., Jack A. Hammontree, Director, Alabama Development Office, Carol Herrmann, Com'r, Alabama Medicaid Agency, Andrew P. Hornsby, Jr., Director, Dept. of Human Resources, James Michael Horsley, Com'r, Dept. of Mental Health and Mental Retardation, Royce G. King, Director, State Highway Dept., Ivan F. Smith, Adjutant Gen., and Morris Thigpen, Jr., Com'r, Dept. of Corrections.
SHORES, Justice.
The plaintiffs in the original case are subscribers for health care benefits with Blue Cross and Blue Shield of Alabama ("Blue Cross"). They brought a class action seeking a declaratory judgment and an order directing refunds of excess reserves alleged to be held by Blue Cross. The plaintiffs claimed that Blue Cross had "accumulated an illegal and/or excessive profit and/or reserve and surplus in excess of the amount allowed by statute in Alabama, or required for the solvency of the plan" and that Blue Cross's board of directors was not a representative cross-section of the population, as is required by statute.
Blue Cross moved to dismiss the complaint, alleging, among other things, that the subscribers had failed to exhaust administrative remedies in the Alabama Insurance Department and had failed to join the Alabama Insurance Department. In response to the motion, the subscribers amended their complaint and added the Insurance Department as a defendant.
In March 1989, the circuit court entered orders certifying the plaintiffs' class; directing the Insurance Department to perform *677 certain tasks under certain procedural rules and to report to the court; entering partial summary judgment in favor of the plaintiffs; and denying all other pending motions. The partial summary judgment in favor of the plaintiffs was entered by the trial judge on the issue of liability, i.e., he held as a matter of law that Blue Cross was illegally calculating reserves.
Blue Cross filed a petition for writ of mandamus or prohibition or both, in the Court of Civil Appeals. Mike Weaver, as Commissioner of Insurance, in June 1989 filed an appeal or, in the alternative, a petition for a writ of mandamus from the Court of Civil Appeals to vacate the trial court's order.
Attorney General Don Siegelman filed a motion on October 12, 1989, in the Court of Civil Appeals to dismiss the appeal and the alternative petition for writ of mandamus brought by the Department of Insurance. Briefs were filed and oral argument was held on November 14, 1989, in the Court of Civil Appeals on the issue of control of litigation of the Insurance Department. The Court of Civil Appeals granted the motion to dismiss, ruling that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama and all of its departments.
The petition for writ of mandamus before us seeks to vacate the decision of the Court of Civil Appeals. We must determine whether the attorney general of the State of Alabama has the authority to move to dismiss the State Insurance Department's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance.
It is instructive to look at the history of the office of attorney general:
"1 For a more detailed description of the development of the Office of Attorney General from its origins in England through the colonial period, see Committee on the Office of Attorney General, the National Association of *678 Attorneys General, Common Law Powers of State Attorneys General, at 68 (1980).
"2 See COMMON LAW POWERS, supra note 1, at 25-27 (identifying 35 states in which the attorney general is recognized as having common-law powers).
"3 Edmisten, The Common Law Powers of the Attorney General of North Carolina, 9 N.C.Cent. L.J. 1, at 10 (1977).
"4 State v. Finch, 128 Kan. 665, 671, 280 P. 910, 912 (1929).
"5 Secretary of Admin. & Fin. v. Attorney Gen., 367 Mass. 154, 326 N.E.2d 334 (1975)....
"6 Mundy v. McDonald, 216 Mich. 444, 450, 185 N.W. 877, 880 (1921).
"7 State v. Thompson, 10 N.C. (3 Hawks) 613, 614 (1825).
"8 See e.g. Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1262 (1977) (discretionary power not to be used in arbitrary or capricious manner); Cooley v. South Carolina Tax Comm'n, 204 S.C. 10, 28 S.E.2d 445 (S.C.1943) (Attorney General found to have acted in good faith)."
Note, "Tice v. Department of Transportation: A Declining Role for the Attorney General?" 63 N.C.L.R. 1051 at 1053-54 (1985).
Next, we look at the Alabama Constitution of 1901, which created the office of attorney general. Article V of the Alabama Constitution of 1901 creates the executive department of the State of Alabama. "The executive department shall consist of a governor, lieutenant governor, attorney-general, state auditor, secretary of state, state treasurer, superintendent of education, commissioner of agriculture and industries and a sheriff for each county." Art. V, Sec. 112. All of these officers, with the exception of the sheriff for each county, are elected at large by the qualified electors of the state. Art. V, Sec. 114.
Article V provides that "[t]he supreme executive power of this state shall be vested in a chief magistrate, who shall be styled `The Governor of the State of Alabama.' "Art. V, Sec. 113. "The governor shall take care that the laws be faithfully executed." Art. V, Sec. 120. The commissioner of insurance argues that the Governor has the right under the Constitution to hire counsel other than the attorney general to represent the commissioner. He contends that under the Constitution of Alabama the actions of the Governor have a higher sanction than the actions of the attorney general, since the Governor is the state's chief magistrate.
Article V, Sec. 137, of the Alabama Constitution of 1901, as amended by Amendment 111, sets forth the general duties of the attorney general of Alabama:
Code of Alabama 1975, § 36-15-1, sets forth the duties of the attorney general. These include the following:
Further statutory authority is given to the attorney general in § 36-15-21:
The commissioner contends that the power of the attorney general to direct and control litigation is tempered by the language "with the approval of the governor." However, when § 36-15-21 is closely read, it is apparent that the approval of the Governor is necessary only for the employment of outside counsel to represent a department. In other words, if private counsel is to be hired to represent a state agency, that counsel must be employed by the attorney general with the approval of the Governor. Section 36-15-21 does allow the Governor to hire personal counsel for himself.
The Alabama Insurance Code provides as follows: "The attorney general shall assign to the department an assistant attorney general who shall render to the commissioner such legal services as may be required." § 27-2-11. The commissioner argues that the power given to the attorney general to control "all litigation" in § 36-15-21 is tempered and limited by the requirement of § 27-2-11 that the attorney general provide to the Insurance Department such legal services "as may be required." Therefore, he argues, the attorney general does not have the power to dismiss the appeal of the commissioner of insurance.
The attorney general argues in response that the authority to control litigation affecting the interest of the state is vested in him pursuant to § 36-15-1(3) and § 36-15-21, Code of Alabama 1975. He contends that the attorney general must have control of litigation in order to avoid confusion and the chaos of state agencies suing each other. The attorney general cites the Court to State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So. 2d 280 (1949). In that case the attorney general brought a mandamus action to compel the trial court to enter a consent judgment in a case pending between the State Department of Revenue and several defendants. The question presented was whether the attorney general was authorized and empowered to settle a pending suit by the State filed by him in his official capacity for the collection of an unliquidated tax claim, by taking a consent judgment in the cause for less than the amount sued for and claimed to be due by the revenue department. This Court held "that the attorney general, as the chief law officer of the state, was fully empowered to make any bona fide disposition of the cause as in his judgment might be deemed to be to the best interest of the state, unless inhibited by organic law." 252 Ala. at 485, 41 So. 2d at 285.
By so holding, this Court rejected the argument of the revenue department that § 139 proscribed the attorney general from making such a settlement:
"The stronger current of opinion affirms that the attorney general's powers are as broad as the common law unless restricted or modified by statute....
"....
Id., 252 Ala. at 484, 41 So. 2d at 284.
The commissioner argues that Carmichael is not controlling. He cites us to American Benefit Life Ins. Co. v. Ussery, 373 So. 2d 824 (Ala.1979), wherein this Court held that the attorney general could not be a legal representative of the commissioner of insurance as receiver unless so requested. However, that case is readily distinguished from the present case. In American Benefit Life Ins. Co., the commissioner was acting in his capacity as a court-appointed receiver of an insolvent insurance company. "A receiver is a representative or arm of the court." Id. at 828, quoting Sullivan Timber Co. v. Black, 159 Ala. 570, 48 So. 870 (1909). "When the Commissioner acts as receiver, his primary obligations are to the policyholders, the court, and the creditors of the insolvent insurance company." 373 So. 2d at 828. In the present case the commissioner is not a receiver acting under the auspices of a circuit court; he is the head of a department of state government.
A related case was decided by the United States District Court for the Southern District of Alabama. Mobil Oil Corp. v. Kelley, 353 F. Supp. 582 (S.D.Ala.1973), affirmed, 493 F.2d 784 (5th Cir.1974), cert. denied, 419 U.S. 1022, 95 S. Ct. 498, 42 L. Ed. 2d 296 (1974). In that case, Mobil Oil Corporation filed an application with the Alabama Oil and Gas Board for a permit to drill a well at a location in Mobile Bay that the corporation had leased from the State of Alabama. Until the filing of that application, such permits had been issued routinely by the Oil and Gas Board. The then-attorney general of Alabama, William Baxley, as attorney for both the director of conservation and the Oil and Gas Board, publicly announced his objection to the drilling in Mobile Bay, and advised the Oil and Gas Board that he would fight it.
In holding that an injunction requested by Mobil Oil was not warranted, Chief Judge Pittman stated:
Id. at 586.
The Supreme Court of Massachusetts addressed the question "whether the power of the Attorney General to establish a coherent *681 legal policy for the Commonwealth includes the authority to chart a course of legal action which is opposed by the administrative officers he represents." Feeney v. Commonwealth, 373 Mass. 359, 366 N.E.2d 1262, 1265 (1977). This was a certified question from the United States Supreme Court and involved the attorney general's right to prosecute an appeal to that Court. The Supreme Court of Massachusetts held that the attorney general was acting within his authority in prosecuting an appeal to the Supreme Court of the United States, despite the opposition voiced by the State officers whom he represented and their refusal to consent to the appeal. 373 Mass. at 368, 366 N.E.2d at 1267. "Where, in his judgment, an appeal would further the interests of the Commonwealth and the public he represents, the Attorney General may prosecute an appeal to the Supreme Court of the United States from a judgment of the District Court over the expressed objections of the State officers he represents." Id.
The Supreme Court of Massachusetts reasoned as follows:
Feeney v. Commonwealth, 373 Mass. 359 at 365-66, 366 N.E.2d 1262 at 1266. The Massachusetts Supreme Court went on to say that the power to formulate legal policy for the Commonwealth of Massachusetts "may not be used in an arbitrary, capricious or illegal manner." 373 Mass. at 368, 366 N.E.2d at 1267. The Court in Feeney found no evidence that the attorney general's conduct was of this nature. Id.
This Massachusetts Supreme Court decision explains the unusual nature of the office of the attorney general and the reason that that office is empowered to control the litigation of state agencies. It further recognizes that the attorney general's relationship to the heads of state agencies is not the ordinary attorney-client relationship.
The commissioner argues that the attorney general should be disqualified from representing the commissioner of insurance *682 because, he asserts, this representation violates the Rules of Professional Responsibility of the Alabama State Bar. He argues that it is an elementary principle of legal ethics that an attorney cannot represent both sides to a dispute and that there exists a conflict of interest in the attorney general's representation of the commissioner. We do not agree.
The Supreme Court of Connecticut addressed a situation in which the attorney general represented both sides of the issue in a lawsuit concerning state agencies. Connecticut Comm'n on Special Revenue v. Connecticut Freedom of Information Comm'n, 174 Conn. 308, 387 A.2d 533 (1978). In that case, the attorney general had appeared for both the Connecticut Commission on Special Revenue and the Freedom of Information Commission of Connecticut. The trial judge had ordered the attorney general to withdraw on the grounds of conflict of interest, citing Canon 5 of the Code of Professional Responsibility and Disciplinary Rule 5-105(A), (B), and (D), as well as Matthew 6:24 ("no man can serve two masters") in so holding. The Supreme Court of Connecticut rejected this argument, which is identical to the argument advanced here by the commissioner. The Connecticut Supreme Court ordered the trial court to allow the attorney general to represent both agencies, finding that assistant attorneys general could appear for the agencies.
Similarly, the Supreme Court of Mississippi considered the power of the attorney general to appear as counsel for the State of Mississippi (as intervenor) in an appeal, while at the same time controlling the legal representation of the Mississippi Public Service Commission. The court stated:
State ex rel. Allain v. Mississippi Public Service Commission, 418 So. 2d 779, 784 (Miss.1982). The Mississippi Supreme Court stated the majority rule as follows:
Id. at 783. Having adopted this rule, the Court concluded that the attorney general could, in fact, represent both sides of the case. The Mississippi Supreme Court reasoned:
Id. at 783. See Public Utility Comm'n of Texas v. Cofer, 754 S.W.2d 121 (Tex.1988); contra City of York v. Pennsylvania Public Utility Comm'n, 449 Pa. 136, 295 A.2d 825 (1972).
The United States District Court for the Northern District of Mississippi in Wade v. Mississippi Cooperative Extension Service, 392 F. Supp. 229 (N.D.Miss.1975), considered the question that was phrased by Chief Judge Keady as follows:
Id. at 231. After reviewing the Mississippi statute,[1] the federal district court held:
Id. at 235.
The Supreme Court of Illinois addressed a similar question in Environmental Protection Agency v. Pollution Control Bd., 69 Ill. 2d 394, 14 Ill.Dec. 245, 372 N.E.2d 50 (1977). The question presented was whether a state agency could employ private counsel to represent it and have the fees paid by the attorney general in the absence of an appointment of counsel by the attorney general or by the court. The Supreme Court of Illinois stated:
The Supreme Court of North Carolina had before it a declaratory judgment action to determine the duties of the governor and the attorney general in connection with lawsuits filed against the State. Martin v. Thornburg, 320 N.C. 533, 359 S.E.2d 472 (1987). In that case the governor and the attorney general of North Carolina took different legal positions. The North Carolina Supreme Court sought to determine whether the duty of the attorney general to appear for the State in any proceeding in which the State may be a party, as provided for in N.C.G.S. § 114-2(1), violates Article III, § 1, of the North Carolina Constitution. Article III, § 1, provides that "[t]he executive power of the state shall be vested in the Governor." The court concluded that the duties of the attorney general as prescribed by statutory and common law include the duty to appear for and to defend the State or its agencies in all actions in which the State may be a party or be interested. Therefore, the attorney general could determine the procedural steps necessary to protection of the state's interest in the action. The North Carolina Supreme Court noted that it found support in the following general statement of law:
320 N.C. at 546, 359 S.E.2d at 479.
Article V, Sec. 137, of the Alabama Constitution provides: "The attorney general... shall perform such duties as may be prescribed by law." It has been suggested that this wording restricts the authority of the attorney general. However, this is not the general rule. The Supreme Court of Utah in Hansen v. Barlow, 23 Utah 2d 47, 456 P.2d 177 (1969), adopted the reasoning of the Supreme Court of Montana in State ex rel. Olsen v. Public Service Comm'n, 129 Mont. 106, 283 P.2d 594 (1955), as to the general rule. The Utah Supreme Court noted that Article VII, Sec. 18 of the Utah Constitution provides: "The Attorney General shall be the legal adviser of the State Officers and shall perform such other duties as may be provided by Law." 23 Utah 2d at 48, 456 P.2d at 178. This section of the Utah Constitution is similar to Article V, Sec. 137, of the Alabama Constitution. The Utah Supreme Court, as the Montana Supreme Court had done, reasoned that this language, rather than limiting the powers of the attorney general, grants the attorney general the powers that were held by him at common law:
Hansen v. Barlow, 23 Utah 2d 47, 456 P.2d 177, 178 (1969).
Finally, the commissioner argues that he has been denied the due process of law guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 6, of the Alabama Constitution. We reject this argument on the authority of State of South Carolina v. Katzenbach, 383 U.S. 301, 324, 86 S. Ct. 803, 816, 15 L. Ed. 2d 769, 784 (1966), citing International Shoe Co. v. Cocreham, 246 La. 244, 266, 164 So. 2d 314, 322 n. 5, cert. denied, 379 U.S. 902, 85 S. Ct. 193, 13 L. Ed. 2d 177 (1964). Mike Weaver is a party to this suit as commissioner of insurance, not as an individual.
We have carefully reviewed the law and the precedents in this case. The overwhelming authority supports the decision of the Court of Civil Appeals that the attorney general has the power to manage and control all litigation on behalf of the State of Alabama. We hold that the attorney general of the State of Alabama has the authority to move to dismiss the State Department of Insurance's proceedings in the Court of Civil Appeals over the objection of the commissioner of insurance.
We recognize that there may be times when the Governor disagrees with the attorney general about matters in litigation. Although we determine that the attorney general is authorized to direct the course of all litigation involving the State and its agencies, the Governor, as "chief magistrate" of the State,[2] may intervene in any such litigation. Rule 24, A.R.Civ.P. As an intervenor,[3] the Governor may express his views and take positions contrary to those argued by the attorney general.
The writ of mandamus is denied.
WRIT DENIED.
HORNSBY, C.J., and JONES, ALMON and ADAMS, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
POWER! That is what this appeal is about. This appeal does not address in any way the merits of the underlying litigation.
This is the issue posited in the majority opinion of the Court of Civil Appeals. To me, the issue is much broader.
Does the attorney general of the State of Alabama under his legislative mandate to direct and control litigation concerning the interest of the State or any department thereof, Ala.Code 1975, § 36-15-21, have the power to make substantive policy decisions contrary to the decisions of the department or agency that he is representing?
The Alabama Constitution of 1901, Art. V, § 112, as amended by Amendment No. 284, provides:
(Emphasis supplied.)
The Alabama Constitution of 1901, Art. V, § 113, provides:
(Emphasis supplied.)
Black's Law Dictionary 1292 (5th ed. 1979) defines "supreme" as "[s]uperior to all other things." The American Heritage Dictionary of the American Language 1293 (1969) defines "supreme" as "[g]reatest in power, authority, or rank; paramount; dominant. Greatest in importance, degree, significance, character, or achievement; utmost; extreme. Ultimate; final." Black's Law Dictionary, at 511, defines "executive powers":
In Martindale v. Anderson, 581 P.2d 1022, 1027 (Utah 1978), the Supreme Court of Utah wrote:
The Constitution of this State gives the Governor power superior to all others, the ultimate final power, to execute and enforce laws and to appoint the agents charged with the duty to execute laws. "Supreme," when it appears before the phrase "executive power," means no less than it does when it precedes the word "court" in § 6.02 of Amendment No. 328 to the Alabama Constitution ("[t]he Supreme Court shall be the highest Court of the State").
The Alabama Constitution of 1901, Art. V, § 120, further provides: "The Governor shall take care that the laws be faithfully executed."
Thus, the source document, the Alabama Constitution of 1901, defines the Governor's power and the Governor's duty.
In furtherance of these constitutional mandates, the Legislature has confirmed in the Governor the responsibility and concomitant authority to control and to coordinate the affairs and the business of the State by recognizing the Governor's right to control the actions of members of the executive branch. To ensure that officials in the executive branch of government adhere to the Governor's policies and submit to his will, the Governor is generally given the authority to appoint and to remove these officials with or without cause.[4]
*686 The Legislature created the Department of Insurance of the State of Alabama (Ala. Code 1975, § 27-2-1) and provided that the commissioner of insurance shall be the chief executive officer of the department and shall be appointed by the Governor and shall serve for a term concurrent with that of the Governor by whom the commissioner was appointed or for the unexpired portion thereof. Alabama Code 1975, § 36-13-7, provides:
Under this constitutional and statutory structure, the Governor, as the supreme executive responsible under the Constitution for the execution of the laws of this State, acts by and through agency and departmental heads, who serve as vehicles by which the Governor carries out his constitutional mandate. By executing his power to appoint and to remove, the Governor ensures that the executive departments and agencies implement his decisions and adhere to his policies and his interpretations of the laws so that his decisions may be faithfully executed. The act of any of these subordinate executives is the act of the Governor himself.
The laws pertaining to insurance that the Governor must execute through the commissioner of insurance, whom he shall select "with special reference to his training, experience, and capacity" (Ala.Code 1975, § 27-2-2(b)), are found primarily in Tit. 27, Ala.Code 1975, which consists of 46 chapters, hundreds of sections, and over 600 pages. In addition, and as it pertains to the underlying case, the Legislature, pursuant to Ala.Code 1975, §§ 10-4-100, -115, has given to the commissioner of insurance certain duties and certain powers to regulate health care service plans. Blue Cross and Blue Shield is a special purpose corporation organized under this section for the specific and limited purpose of maintaining a health care service plan for subscribers. Blue Cross & Blue Shield v. Protective Life Ins. Co., 527 So. 2d 125 (Ala.Civ.App. 1987). Every corporation that provides a health care service plan ("health care service corporation") must procure from the commissioner of insurance a certificate of authority to do business (§ 10-4-106); no health care service corporation can issue or sell any contract until the form of the contract has been filed with the commissioner of insurance (§ 10-4-106); and a health care service corporation must file with the commissioner of insurance any change in rates, charges, fees, and dues. It is the duty of the commissioner of insurance to approve or disapprove in writing the rates, charges, fees, and dues, after making certain that they are not unreasonably high or excessive, that they are adequate to meet the liability assumed under the contracts and all expenses in connection therewith, and that they are adequate for the safety and soundness of the health care service corporation. In making this determination, the commissioner shall take into account past and prospective loss experience (§ 10-4-109). In § 10-4-110, the commissioner is given the following powers:
Health care service corporations must obtain from the commissioner of insurance a certificate of authority for every individual agent writing or soliciting health care certificates for the health care service corporation (§ 10-4-111). Health care service corporations must deposit certain securities with the state treasurer, and these securities may be replaced from time to time by other authorized securities of equal value, with the approval of the commissioner of insurance (§ 10-4-112). Each health care service corporation must annually file in the office of the commissioner of insurance a statement verified by at least two of the principal officers of the health care service corporation, showing its condition on December 31 next preceding, in the form, and containing such matters, as the commissioner of insurance shall prescribe (§ 10-4-113). Section 10-4-113 also provides:
Likewise, § 10-4-114 provides:
The majority opinion begins with the attorney general, whose duties and powers I now examine. The Alabama Constitution of 1901, Art. V, § 112, as amended by Amendment No. 284, provides: "The executive department shall consist of [an] ... attorney-general...." The Alabama Constitution of 1901, Art. V, § 137, as amended by Amendment No. 111, provides, in pertinent part: "The attorney general ... shall perform such duties as may be required by law." There is nothing in the Constitution that gives the attorney general any specific power.
Those duties of the attorney general relevant to the case at issue are as follows:
Alabama Code 1975, § 36-15-1(3).
Alabama Code 1975, § 36-15-21.
Alabama Code 1975, § 27-2-11.
The attorney general is a constitutional officer elected independently from the Governor. Like the Governor and his department heads, the attorney general is responsible for protecting the State's interest. The potential for conflict has been recognized by the courts in other states:
Tice v. Department of Transportation, 67 N.C.App. 48, 312 S.E.2d 241, 245 (1984).
In Arizona, as in Alabama, both the Governor and the attorney general are independent constitutional officers. The Arizona constitution provides that the governor "shall take care that the laws are faithfully executed" and provides that "the powers and duties of the Attorney General, shall be as prescribed by law." In Arizona State Land Department v. McFate, 87 Ariz. 139, 348 P.2d 912, 918 (1960), the Supreme Court of Arizona, in denying the attorney general's standing to initiate certain proceedings without the governor's approval, wrote:
It is clear to me that under our constitutional and statutory scheme, the Governor alone, and not the attorney general, is responsible for supervising the state's executive departments and agencies and is obligated and empowered to protect the interest of the people of the State by taking care that the laws are faithfully executed.
When considered in the light of the Governor's constitutional mandate, the seemingly broad power granted to the attorney general by § 36-15-21 to direct and control litigation is clearly restricted. To give the section the broad construction that the majority gives it clearly puts § 36-15-21 at odds with §§ 113 and 120 of our Constitution, for it allows the attorney general's statutory or even common law power (if such was not "altered or repealed" by § 36-15-21, see Ala.Code 1975, § 1-3-1) to detract or take away from the Governor's "supreme executive power." (Emphasis added.) When a statute is susceptible to two constructions, and one would render it unconstitutional while the other would not, we must give the statute the construction that would make it constitutional. Whitson v. Baker, 463 So. 2d 146 (Ala.1985).
In my opinion, the phrase "[a]ll litigation concerning the interest of the State, or any department thereof, shall be under the direction and control of the attorney general" does not vest in the attorney general the authority to make substantive policy decisions concerning matters in litigation.
From time to time, Governors have intervened in cases in which they thought the public interest was involved and was not being adequately protected. See Continental Telephone Co. of the South v. Alabama Public Service Commission, 479 So. 2d 1195 (Ala.1985); General Telephone Co. of the Southeast v. Alabama Public Service Commission, 356 So. 2d 612 (Ala. 1978); Alabama Public Service Commission v. South Central Bell Telephone Co., 348 So. 2d 443 (Ala.1977); Alabama Gas Corp. v. Wallace, 293 Ala. 594, 308 So. 2d 674 (1975); State v. Alabama Public Service Commission, 293 Ala. 553, 307 So. 2d 521 (1975). Under the majority opinion, does the attorney general, by his authority to direct and control litigation involving the State's interest, have authority to dismiss the intervention of the Governor, the supreme executive?
Recently, this Court issued its writ of certiorari without being requested to do so by the attorney general or anyone else. White v. Reynolds Metals Co., 558 So. 2d 373 (Ala.1989). White involved millions of dollars of State funds (franchise tax on corporations that were incorporated in states other than Alabama). Under the majority opinion, would the attorney general, by his authority to direct and control litigation involving the State's interest, *689 have the right to prevent this Court from issuing its writ of certiorari in litigation involving the State's interest?
The Legislature has designated that the substantive policy decisions in the underlying matters in litigation are the responsibility of another member of the executive department. The power to direct and control normally gives the attorney general the authority to decide what is and what is not worth taking to court or defending there and what is or what is not to be appealed, and the executive official involved should normally yield to the judgment of the attorney general so that the State may speak to the courts in a consistent and coherent manner. However, the attorney general's right to manage litigation must end when it interferes with a State agency's authority and duty to enforce substantive matters relating to its legislative purpose. When this happens, I would adopt the position of the Mississippi Supreme Court:
State v. Mississippi Public Service Commission, 418 So. 2d 779, 784 (Miss.1982).
This case is distinguishable from State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So. 2d 280 (1949). This Court in Carmichael held that a statute that allowed the Department of Revenue to hire special outside counsel and provided that such counsel could not dismiss a case without the approval of the Department of Revenue, did not apply to the settlement of a case referred to and handled by the attorney general, where the record showed that "there was a bona fide dispute as to the law and to the facts governing a determination of the amount due." 252 Ala. at 482, 41 So. 2d at 282. The holding in Carmichael was that the State's senior lawyer, rather than "another executive head, not necessarily learned in the law," was the appropriate person to weigh the merits of the case with the law and facts in dispute, consider the risks of litigation, and assess whether the State's interest would be better served by proceeding to trial for a claim of $2,591.50 or accepting a settlement of $1,587.50. In Carmichael, the revenue commissioner relied on § 100 of the Constitution, which provides, in pertinent part:
The Court in Carmichael found that there had been no final assessment fixing an amount due, and, therefore, that § 100 of the Constitution did not apply to that particular case. The revenue commissioner also relied on the following provision of Tit. 51, § 139, Code of Ala.1940 (now Ala.Code 1975, § 40-2-66):
The Court held that this provision applied to the dismissal of pending cases by specially employed counsel and did not and was not intended to apply to the attorney general.
The broader constitutional or policy issues that have been raised in the case at issue were not raised in Carmichael. Therefore, the broad language in Carmichael is dictum and is not binding on this Court. In Carmichael, this Court left the door open for future cases by "pretermitting any question of bad faith" on the part of the attorney general, because that issue was not raised. Likewise, in qualifying its rather broad recognition of the power in the attorney general to act on the State's behalf, with the phrase "[unless] inhibited by organic law," i.e., constitutional constraints which were obviously not urged on the Court in the Carmichael case, this Court acknowledged that there could be *690 constitutional restrictions on the attorney general's power to "direct and control" litigation. 252 Ala. at 485, 41 So. 2d at 285.
The attorney general's action was "inhibited by organic law" in regard to the case at issue; therefore, on this ground I can also distinguish this case from Carmichael.
Carmichael should have no precedential effect on this Court's decision in this case; therefore, I would adopt the position of the Supreme Court of Mississippi, which I find to be a fair rule, a reasonable rule, a practical rule, a rule grounded in the well-defined boundaries of the attorney/client relationship, and, most importantly, the rule that conforms to the Alabama Constitution. By adopting this rule, we would allow competing views held by independent constitutional officers concerning what is in the best interest of the State to get a full and fair hearing and would place the dispute in the hands of an independent judiciary for decision rather than having one independent officer of the executive branch impose his will on another. The right rule for this case, and the right rule for this State, is as follows:
State v. Mississippi Public Service Commission, supra, at 784.
STEAGALL, Justice (dissenting).
The Governor is the highest constitutional officer in this state. Our Constitution provides that "the supreme executive power of this state shall be vested in a chief magistrate, who shall be styled `the Governor of the state of Alabama.'" Article V, § 113, Alabama Constitution of 1901. "The Governor shall take care that the laws be faithfully executed." Article V, § 120.
I believe that this Court would be correct and wise to allow the Governor to make important executive decisions affecting the lives and health of our citizens. Indeed, this is required by our Constitution.
This view is not inconsistent with the right of the attorney general to intervene in a case when he disagrees with the action of a state agency. The Supreme Court of Mississippi stated this position in State ex rel. Allain v. Mississippi Public Service Comm'n, 418 So. 2d 779, 784 (Miss.1982):
I think this position is practical and is in the best interests of all the people of this state. I, therefore, respectfully dissent.
MADDOX, J., concurs.
[1] The Mississippi statute states in relevant part: "The attorney general ... shall be the chief legal officer and advisor for the state, both civil and criminal, and is charged with managing all litigation on behalf of the state. No arm or agency of the state government shall bring or defend a suit against another such arm or agency without prior written approval of the attorney general. He shall have the power of the attorney general at common law and is given the sole power to bring or defend a lawsuit on behalf of a state agency, the subject matter of which is of statewide interest." Wade v. Mississippi Cooperative Extension Service, 392 F. Supp. 229, 231 n. 2 (N.D.Miss.1975).
[2] Ala.Const.1901, § 113.
[3] The Governor may appear through counsel employed pursuant to § 36-13-2 or the last clause of § 36-15-21, Code 1975.
[4] For example, the following officials are appointed by and serve at the pleasure of the Governor: the adjutant general of the Alabama National Guard, Ala.Code 1975, § 31-2-58; the commissioner of corrections, Ala.Code 1975, § 14-1-1.3; the director of development, Ala. Code 1975, § 41-9-201; the director of the Department of Economic and Community Affairs, Ala.Code 1975, § 41-23-4; the director of emergency management, Ala.Code 1975, § 31-9-4; the highway director, Ala.Code 1975, § 23-1-21; the director of industrial relations, Ala.Code 1975, § 25-2-6; the commissioner of mental health, Ala.Code 1975, § 22-50-16; and the director of public safety, Ala.Code 1975, § 32-2-1. | October 12, 1990 |
7b43fde0-c931-4e10-8f9a-5ba54917e03a | Birmingham Southern Railroad Company v. Ball | 126 So. 2d 206 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 206 (1961)
BIRMINGHAM SOUTHERN RAILROAD COMPANY
v.
Handy BALL.
6 Div. 590.
Supreme Court of Alabama.
January 12, 1961.
*207 Moore, Thomas, Taliaferro, Forman & Burr, Birmingham, for appellant.
Clifford Emond, Jr., Birmingham, for appellee.
MERRILL, Justice.
This is an appeal from a judgment for $1500 in a suit brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. A motion for a new trial was overruled.
The single count which went to the jury charged that while appellee "was acting within the line and scope of his employment by defendant, in carrying certain air and/or water hose of defendant, he was caused to be struck on the knee by said air and/or water hose, and was thereby caused to be injured." It was alleged that plaintiff's injuries resulted from the negligence of the defendant or by reason of a defect or insufficiency in its equipment, etc.
It is uncontradicted that the plaintiff, a laborer in the performance of his duties, was injured as a result of being struck on the knee by the end of an air hose which was coiled up and looped around his shoulder and arm; that the end of the air hose flopped over and its metal connection struck him on the knee.
The record shows that this was the customary manner for the hoses to be carried and that the defendant had no rule which required employees to tie up the hoses before carrying them. The defendant did not provide the employees with anything to tie up the hoses nor did they furnish a wagon on which to carry the hoses.
Plaintiff was forty-eight years old at the time of his trial and had worked for the defendant for ten years, and for seven years, it had been part of his job to pick up the air and/or water hose left on or near the tracks by other employees, and when he was hurt, he was doing the same work in the same manner as he had been doing for at least five years.
Appellant first argues that it was entitled both to the general charge without hypothesis and with hypothesis. It is argued that there was no negligence on the part of appellant because there was no duty imposed on the defendant either of (1) promulgating the rule requiring that an air hose, such as the one carried by the plaintiff, be tied up before being carried by an employee, or (2) providing material of some kind with which an employee such as plaintiff could tie up such an air hose before carrying it.
It is true, as argued by appellant, that in F.E.L.A. cases we are bound by Federal decisional law, and the decisions of the Federal Supreme Court say that the act does not make the employer the insurer of the safety of their employees while they are on duty.
Appellant urges that there is no evidence of negligence and that it was entitled to the affirmative charge. We have held that the affirmative charge is properly given in F.E. L.A. cases only when there is a complete absence of probative facts to support plaintiff's claim of negligence on the part of the railroad. Louisville & Nashville Railroad Co. v. Cooke, 267 Ala. 424, 103 So. 2d 791, and cases there cited.
The entire evidence must be viewed in its most favorable aspect to the appellee, and where this is done and a reasonable inference may be drawn adverse to the party requesting the affirmative charge, such charge is properly refused. Louisville & Nashville Railroad Co. v. McElveen, 270 Ala. 600, 120 So. 2d 884; Atlantic Coast Line Railroad Co. v. Taylor, 260 Ala. 401, 71 So. 2d 27.
*208 Some of the evidence favorable to the appellee was: the ends of the hoses were prone to flop down while being carried, and when they struck the leg, the blow could be painful; it would be easier to handle the hose if it were tied and, if tied, the end would not flop; it had been suggested at safety meetings that "the hoses be tied up so they would be easy to get out and bring inand keep them from falling down." Appellant, disregarding this knowledge, failed to promulgate any rule requiring that the hoses be tied, failed to provide its employees with anything with which to tie the hoses, and failed to furnish anything on which the hoses could be carried, forcing the employees to carry them on their shoulders or in their arms. "These were probative facts from which the jury could find that respondent (appellant) was or should have been aware of conditions which created a likelihood that petitioner, in performing the duties required of him, would suffer just such an injury as he did." Rogers v. Missouri Pacific Rwy. Co., 352 U.S. 500, 77 S. Ct. 443, 447, 1 L. Ed. 2d 493. The Rogers case is quoted in Louisville & Nashville Railroad Co. v. Cooke, 267 Ala. 424, 103 So. 2d 791, 794, as follows:
We conclude under this and other recent decisions of the Federal Supreme Court cited in the Cooke case, supra, that a jury question was presented and the affirmative charge was properly refused.
Assignment of error 12 is based on the overruling of the motion for a new trial. Appellant contends that the verdict was in disregard of the trial court's instructions. Appellant states in brief:
We do not think the verdict was contrary to the instructions of the court, and certainly the trial court did not so consider it because the motion for a new trial was overruled.
The decision of a trial court refusing to grant a new trial on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all *209 reasonable presumptions of its correctness, the preponderance of the evidence is so decided as to clearly convince the court that it is wrong and unjust. We are not convinced that there was error in overruling the motion for a new trial. Louisville & Nashville Railroad Co. v. Cooke, 267 Ala. 424, 103 So. 2d 791.
Appellant assigns as error the refusal to give requested written charge 20, which reads:
A charge which merely states an abstract proposition of law without instructing the jury as to its effect upon the issues in the case on trial may be refused without error. Moore v. Cooke, 264 Ala. 97, 84 So. 2d 748; Frith v. Studdard, 267 Ala. 315, 101 So. 2d 305. Moreover, the charge was misleading in that it might be understood as charging assumption of risk. The act specifically deprives the common carrier of that defense where the carrier has been negligent. 45 U.S.C.A. § 54.
It is argued that the court erred in refusing to give charge 21 which reads:
We think the charge is abstract as pointed out in our discussion of charge 20. Furthermore, it could be construed as refusing recovery on the ground of contributory negligence, whereas, contributory negligence does not bar recovery, but damages may be diminished by reason of such negligence on the part of the employee. 45 U.S.C.A. § 53.
Assignment of error 4 is based upon the refusal of the trial court to give a sole proximate cause charge, No. 12.
We held in Mobile Cab & Baggage Co. v. Armstrong, 259 Ala. 1, 65 So. 2d 192, and Holmes v. Birmingham Transit Co., 270 Ala. 215, 116 So. 2d 912, that a sole proximate charge is properly given when under the issues and the evidence, only primary negligence is involved and there is no issue of contributory negligence, subsequent negligence or wantonness.
We have already pointed out that contributory negligence of the appellee was an issue in the instant casenot that it would bar recovery but would diminish the amount of damages to which appellee should be awarded. No reversible error occurred in the refusal to give Charge No. 12.
Affirmed.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur. | January 12, 1961 |
bcf46106-69f6-418a-94c2-8953b0d2e19f | Dunahoo v. Brooks | 128 So. 2d 485 | N/A | Alabama | Alabama Supreme Court | 128 So. 2d 485 (1961)
Mrs. O. Z. DUNAHOO
v.
Mrs. Carrie BROOKS.
6 Div. 573.
Supreme Court of Alabama.
March 30, 1961.
Huie, Furnambucq & Stewart, Birmingham, for appellant.
*486 Rives, Peterson, Pettus & Conway and Edgar M. Elliott, III, Birmingham, for appellee.
STAKELY, Justice.
This is an appeal by Mrs. O. Z. Dunahoo (appellant) from a judgment rendered against her in favor of Mrs. Carrie Brooks (appellee). The case was tried before the court without a jury and judgment was rendered in the amount of $7,500. The case was tried on Court A, which charged the defendant with simple negligence. The defendant pleaded in short by consent. Motion for a new trial was overruled and hence this appeal.
Stated as simply as possible, this suit is based upon a fall which occurred on July 16, 1959. The plaintiff, Mrs. Carrie Brooks, at the time of her fall was ninety-four years of age and weighed about seventy pounds. She was able to walk without assistance. Her vision "close up" was poor although she could see at a distance, which was known to the defendant.
Defendant was a practical nurse with forty-five years of experience. She had engaged during that time in private nursing, nursing in a hospital, nursing for a physician and in a private clinic. At the time of the fall, defendant was engaged in the business of caring for elderly people for hire in her home located at 1400 North 30th Street, Birmingham, Alabama. Among those whom she attended from time to time in her home were persons who were crippled, old, invalid, paralyzed, amputees, afflicted, that is, having the appearance of being afflicted in the brain and recuperating from a heart attack. To assist her, she employed a colored practical nurse, Mary Hamby.
A contract was made for the plaintiff with the defendant whereby for $150 per month the defendant was to provide plaintiff with full-time nursing care. She was to administer medicine, call physicians when necessary and provide room, board and laundry. She was to have complete charge of the plaintiff. During the plaintiff's stay with the defendant, the defendant served the plaintiff meals, helped her dress, helped bathe her, assisted her in the bathtub and administered medicine to her. The plaintiff came to the defendant's home on a stretcher in an ambulance from the hospital in December, 1957.
The room which plaintiff occupied in defendant's home is depicted in a photograph which is before the court. Adjacent to plaintiff's bed were some windows looking out upon the front porch of defendant's home. There was room enough between the windows and the bed to walk. Upon these windows were some curtains. Between the windows and the bed was a portable commode stool frequently utilized by the plaintiff. There was a bed lamp owned by the plaintiff on the headboard of plaintiff's bed, which was placed there in replacement of one owned by the defendant. The cord from this headboard ran around the commode stool and plugged into a socket in the floor between the plaintiff's bed and the window as shown in the photograph. This socket was about five inches out from the baseboard. The cord lay loose on the floor and was not tacked or affixed to the baseboard. This cord was plugged into this particular socket by the defendant. After the fall, the defendant admitted that the socket should not have been placed in the position in which it was located.
The floor covering was a hard, shiny linoleum which replaced a woolen rug or carpet. The linoleum was slick and smooth.
On the date of the accident the plaintiff arose from her sleep, ate breakfast, rested some, took the medicine offered to her by the defendant, lay down for a while and then, having noticed some men on the porch, got up to insert a pin in the curtains in order to close a crack in the curtains, after which she started back to her bed and fell. According to the plaintiff's *487 testimony she was feeling well but caught her foot in the wire which "threw me." She stated that her foot got tangled in the cord and she slipped. She stated that it must have been the cord which caused her to fall as there was nothing else. When plaintiff was found, the cord was around her foot completely and the cord was pulled from the plug. The defendant was aware that the plaintiff frequently used the area where the cord was located. In her testimony the plaintiff stated, "That is what I reckon made me fall. I can't imagine why I fell, because I was perfectly well and I was able to go about and do what I wanted to do."
The plaintiff suffered a fracture of the left hip at the neck of the femur, which required a total hip prosthesis or hip replacement and she will be disabled from walking for the rest of her life without the use of a walker. She also suffered various hospital and medical expenses, which we shall not enumerate since there seems to be no question as to their reasonableness.
I. Citing Mobile Infirmary v. Eberlein, 270 Ala. 360, 119 So. 2d 8, appellant takes the position that the court was in error in admitting, over the objection of the defendant, the deposition of Mrs. Dunahoo, since she was present in court and competent to testify. There was no error in this ruling. The case referred to dealt with the depositions of witnesses. The instant case deals with the deposition of the defendant, a party to the cause. The use of a deposition of a witness is governed by § 474(4) (c), Title 7, 1955 Cum.Pocket Part, Code 1940, while the use of the deposition of a defendant is controlled by § 474(4) (b), Title 7, 1955 Cum.Pocket Part, which states that the "deposition of a party * * * may be used by the adverse party for any purpose." No limitations whatsoever are placed upon the use. Accordingly the presence of the party in court does not affect the admissibility of that party's deposition.
We see no reason to discuss the proposition further, except to say that since the Alabama act under discussion is largely taken from the Federal Rules of Civil Procedure, Federal cases construing the Federal Act should be carefully considered. Mobile Infirmary v. Eberlein, supra. The rule under consideration deals not only with parties, but with an officer, director or managing agent of a company and therefore a Federal decision which considered the introduction in evidence of the deposition of a managing agent of a party when he is present in court, is persuasive. In Pfotzer v. Aqua Systems, Inc., 2 Cir., 162 F.2d 779, 785, Judge Learned Hand said:
See Napier v. Bossard, 2 Cir., 102 F.2d 467. Arnstein v. Porter, 2 Cir., 154 F.2d 464, cited by this court in the Eberlein case, supra, dealt with a motion for a summary judgment and while the court stated that a summary judgment should not be granted upon depositions, it did refer to Napier v. Bossard, supra, saying:
II. The only other errors of which appellant complains deal with the lower court's ruling upon the facts before the court. It is insisted that the defendant was guilty of no negligence and that even if defendant was guilty of negligence, the plaintiff was guilty of contributory negligence. We have stated that the case was tried orally before the court.
However, before discussing the evidence relating to negligence, we should look to see what duty was owed by the defendant to the plaintiff in this case. There is evidence tending to show that defendant was running a nursing home for aged people and contracted to give full-time nursing care to the plaintiff. The plaintiff was ninety-four years of age, a feeble woman who went to the defendant's home from a hospital on a stretcher. The defendant being aware of plaintiff's infirmities and agreeing to give her nursing care, certainly assumed an obligation to exercise care commensurate with plaintiff's physical condition. In fact the defendant stated that it was her job to protect and care for those in her custody. According to her own testimony, "They are like babies," and further, "I don't get them until they are (feeble) or until they get where they can't help themselves."
In Norwood Clinic, Inc. v. Spann, 240 Ala. 427, 430, 199 So. 840, 841, the plaintiff was sixty-four years of age and was crippled from polio. In entering a medical clinic to have his eyes examined he fell on a slick, sloping walkway and broke his leg. This court said:
In South Highlands Infirmary v. Galloway, 233 Ala. 276, 280, 171 So. 250, 253, the principle that the condition of the person to whom the duty is owed must be considered in determining the degree of care, was recognized as follows:
See 38 Am.Jur., §§ 37 and 38, pp. 683-684; Lagrone v. Helman, 233 Miss. 654, 103 So. 2d 365; Facey v. Merkle, 146 Conn. 129, 148 A.2d 261, 70 A.L.R.2d 358; Ferguson v. Dr. McCarty's Rest Home, 335 Mass. 733, 142 N.E.2d 337.
Coming now to the evidence, we note the following. An electric light cord was allowed to lie loose upon the floor of a room occupied by a woman ninety-four years old, in an area which was used frequently for many purposes. It was left to lie loose in a pathway utilized by the plaintiff, with the defendant's knowledge and consent, among other things, to have access to her commode stool and also to adjust draperies on the windows. There was a failure to use a few brads or nails to affix the light cord to the baseboard and so out of the pathway of the plaintiff. There was a failure to remove the plug for the light cord from a position in the floor five inches away from the baseboard to the accepted place on the side of the baseboard.
We are not willing to say that there was contributory negligence on the part of this aged plaintiff in trying to get to and from the window in order to shield her bedroom from the eyes of men on the porch. We are not willing in this way to substitute our judgment for that of the trial court.
III. It is argued by the appellant that a finding for the plaintiff is to make speculation the basis for the judgment of the court, since the injuries could have occurred in a number of different ways which counsel undertake to set forth. The rule is that if the evidence has selective application toward one theory of causation, then the judgment is not based on speculation and conjecture. We call attention to the following statement by this court in Southern Ry. Co. v. Dickson, 211 Ala. 481, 100 So. 665, 669:
See City of Bessemer v. Clowdus, 261 Ala. 388, 74 So. 2d 259; Ten Ball Novelty & Mfg. Co. v. Allen, 255 Ala. 418, 51 So. 2d 690. In Alabama Power Co. v. Pierre, 236 Ala. 521, 524, 183 So. 665, 668, this court said:
*490 The defendant herself testified that when she found the plaintiff, the cord was wrapped completely around her leg and pulled from out of the plug. We consider that this and the other evidence is sufficient to point to the cause of the plaintiff's fall.
Upon a careful consideration, we think that the judgment of the lower court should be affirmed.
Affirmed.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | March 30, 1961 |
79871b76-091f-4ee9-bbf9-dcdecb25f63a | Bryan v. Bryan | 126 So. 2d 484 | N/A | Alabama | Alabama Supreme Court | 126 So. 2d 484 (1961)
Joe BRYAN
v.
Bonnie BRYAN.
8 Div. 32.
Supreme Court of Alabama.
January 26, 1961.
T. J. Carnes, Albertville, for appellant.
Smith & Moore, Montgomery, for appellee.
SIMPSON, Justice.
This is an appeal from a decree of the Circuit Court in Equity of Marshall County, *485 wherein appellee was granted a divorce, a vinculo, from appellant on the ground of cruelty. The decree also awarded custody to appellee of their oldest child, Barbara Jean, 10 years of age, and their youngest child Nolan Lamar, 1½ years of age, and granted to appellant custody of their other child, James Earl, 5 years of age, with rights of visitation respectively, etc. The decree also fixed permanent alimony for appellee and assessed the costs of the suit, including solicitor's fee, against appellant, Joe Bryan, and dismissed his cross-bill praying for a divorce from appellee on the ground of adultery. The appeal challenges the correctness of these rulings.
The testimony was taken partially by deposition and partially orally before the court. We, of course, recognize the long-standing rule of presumption in favor of the correctness of the ruling below in such cases. Sneed v. Sneed, 248 Ala. 88, 26 So. 2d 561; Ray v. Ray, 245 Ala. 591, 18 So. 2d 273; Horton v. Gilmer, 266 Ala. 124, 94 So. 2d 393; Bidwell v. Johnson, 195 Ala. 547, 70 So. 685.
We will first deal with that phase of the decree granting appellee a divorce on the ground of cruelty. Under Code 1940, Title 34, § 22, appellee would be entitled to a divorce if appellant had committed actual violence on her person, attended with danger to life or health, or when from his conduct there is reasonable apprehension of such violence. (Of course, this rule would not apply under the doctrine of recrimination, to be hereafter referred to). In view of the presumption of the correctness of the findings of the trial court, who saw and heard the witnesses testify with respect to this question, we believe we are duty bound to say that the evidence bearing on this issue, though not too strong, was sufficient to warrant a finding by the trial court that appellant was guilty of the infractions denounced by said § 22, supraor, stated more correctly, the findings of the trial court on the evidence of cruelty could not be ruled by us as being palpably erroneous.
On the other hand, the appellant by his cross-bill alleged adultery on the part of appellee and claimed that he was entitled to a divorce from appellee on this ground. The court has read the evidence on this issue in consultation, and after a careful consideration has come to the conclusion that the allegations of the cross-bill on this issue were also well supported. In fact, we are left under no doubt. We of course know the governing rule. Adultery is a crime of darkness and secrecy, and may be proven, like other facts, by circumstantial evidence. The proof must be such as to lead the guarded discretion of a reasonable and just man to the conclusion that the act has been committed. The judicial mind must be reasonably satisfied, as in all civil cases. Gardner v. Gardner, 248 Ala. 508, 28 So. 2d 559, and cases cited. We are guided by this principle in reaching the stated conclusion.
Out of consideration for the parties, we will not relate the evidence bearing on either of the issues, since it would serve no useful purpose. It is sufficient to say that if there ever were a case in which the doctrine of recrimination should be invoked, it is this one. The rule is that if the conduct of both parties has been such as to furnish grounds for divorce, neither is entitled to relief, or, as otherwise expressed, if both parties have a right to a divorce, neither of the parties has. Downs v. Downs, 260 Ala. 88, 69 So. 2d 250; Chamblee v. Chamblee, 255 Ala. 35, 49 So. 2d 917; Butler v. Butler, 254 Ala. 375, 48 So. 2d 318; Stephens v. Stephens, 233 Ala. 178, 170 So. 767; Stabile v. Stabile, 203 Ala. 635, 84 So. 801; Ribet v. Ribet, 39 Ala. 348; 27A C.J.S. Divorce § 67; Richardson v. Richardson, 4 Port. 467, 30 Am.Dec. 538.
We think the rule should be applied in the instant case. Clearly, the decision we reach is unassailable from the standpoint of logic, justice, and equity. The decree *486 should, therefore, be modified, denying either party the right to a divorce and dismissing the bill and cross-bill so praying without prejudice to future litigation on facts later occurring. It is so ordered.
The trial court awarded permanent alimony to appellee, and of course, this award should also be set aside and held for naught, since appellee is not entitled to a divorce. Penn v. Penn, 246 Ala. 104, 19 So. 2d 353. So ordered.
We come now to the troublesome question of the custody of the three children of the parties. For reasons not necessary to state, we have concluded that the learned trial court was correct in awarding the present custody of Nolan Lamar to appellee and requiring appellant to pay to appellee the sum of $35 per month for his support and maintenance and also that the court correctly decreed that custody of James Earl should be awarded to appellant. These phases of the decree, therefore, will be affirmed.
However, after careful consideration, having in mind the status of the respective parties and their conduct so far exhibited, we have concluded that the interests of Barbara Jean would be best served by awarding her custody to appellant. The trial court will, therefore, modify the decree in this last respect noted with the right of visitation on the part of the appellee as was decreed by the lower court with respect to appellant.
The trial court also ordered a reference to the register to determine a reasonable solicitor's fee for appellee to be taxed as a part of the costs of court. While the fee under the circumstances should not be high, the trial court still has a discretion to proceed with the fixing of said fee after the report of the register for defending the cross-bill. This phase of the decree is also affirmed. Penn v. Penn, supra.
The decree below will be modified and affirmed in the respects hereinabove noted and in all other matters it is reversed with directions that the trial court enter a decree in conformity with the foregoing conclusions. The entire cause is remanded to the trial court for such further proceedings as may be proper.
Let the court costs, except appellee's solicitors' fee, be taxed one-half against appellant and one-half against appellee.
Affirmed in part, modified in part, and in part reversed and remanded with directions.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur. | January 26, 1961 |
3395e246-abd8-457a-aa37-ec544ca2bb67 | Coleman v. Taber | 572 So. 2d 399 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 399 (1990)
Dorothy Huntley COLEMAN and John Coleman
v.
Sherry D. TABER.
88-504.
Supreme Court of Alabama.
October 26, 1990.
John L. Cole and Linda L. Cole, Birmingham, for appellants.
Robert E. Cooper of Rives & Peterson, Birmingham, for appellee.
MADDOX, Justice.
This appeal is from a judgment in favor of a defendant in a lawsuit arising out of an automobile accident in Birmingham. The issue is whether the trial court erroneously instructed the jury on the doctrine of sudden emergency and portions of the "Alabama Rules of the Road," and if so, whether the appellants properly objected in order to preserve the question for appellate review.
Dorothy H. Coleman had stopped her automobile just past the crest of a hill and was waiting for an oncoming truck to make an improper left-hand U-turn into her lane of traffic. As defendant Sherry Taber crested this same hill in an automobile, she noticed the stopped traffic and applied her brakes, but was unable to stop in time, and her vehicle collided with the rear-end of Mrs. Coleman's car.
Mrs. Coleman and her husband sued, alleging negligence and wantonness against Taber, and alleging negligent entrustment *400 against Taber's parents.[1] Mrs. Coleman claimed damages for back and neck injuries, and Mr. Coleman claimed damages for loss of consortium resulting from his wife's injuries. Sherry's father, Douglas Taber, was later removed from the case by summary judgment because he was not the custodial parent. The case was tried before a jury. The court directed a verdict in favor of Taber's mother on the negligent entrustment claim, and in favor of Taber on the wantonness claim. The case went to the jury on claims of simple negligence and combined and concurring negligence. The jury returned a verdict in favor of Taber, and the court entered a judgment on that verdict.
The Colemans appealed, but only as to Taber. They assert that the trial court erroneously instructed the jury regarding two provisions of the "Alabama Rules of the Road" and that the trial court also erred in instructing the jury on the doctrine of sudden emergency.[2] Taber correctly points out, and the Colemans readily acknowledge, that the record does not reflect an objection or exception to the trial court's oral instruction on Ala.Code 1975, § 32-5A-31, or to the oral charge on the doctrine of sudden emergency, although they contend such an objection was made. The record does reflect an objection to the oral instruction concerning Ala.Code 1975, § 32-5A-131. Because of the factual distinctions between these alleged objections, we must address them separately. We will first address the Colemans' alleged objections to the court's instructions on § 32-5A-31 and the doctrine of sudden emergency.
On two separate occasions the trial judge gave the Colemans an opportunity to object to the proffered jury instructions, once at the close of the trial court's instructions and again after the jury requested additional instructions. When the court first asked if the Colemans had any objections, they objected to only the instruction regarding § 32-5A-131. (See footnote 2.) After the court instructed the jury again on the definition of negligence, including the instruction regarding § 32-5A-31, the court asked the Colemans "What says the plaintiff?" Their counsel replied, "The plaintiff's satisfied."
If the Colemans were not satisfied with the court's charges as given, they should have objected, and they did not; therefore, no error was committed. Hancock v. City of Montgomery, 428 So. 2d 29 (Ala.1983); Record Data Int'l, Inc. v. Nichols, 381 So. 2d 1 (Ala.1979); Great Atl. & Pac. Tea Co. v. Sealy, 374 So. 2d 877 (Ala. 1979); Odom v. Linsey, 365 So. 2d 664 (Ala. 1978).
Rule 51 is clear and unambiguous in its provision that "[n]o party may assign as error the giving or failing to give a written instruction, or the giving of an erroneous, misleading, incomplete, or otherwise improper oral charge unless he objects thereto *401 before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection."
The Colemans contend they made the proper objections during a court recess but that the objections were omitted from the reporter's transcript. They claim that it was their belief that the court reporter was properly recording the charge conference. Based on this contention, the Colemans assert that a formal objection to the jury charge was unnecessary because the judge was aware of their objections.
In essence, the Colemans urge this Court to look beyond the record on appeal to the assertions made in their brief. This we cannot do. This Court is bound by the record, and the record may not be impeached by matters outside the record, such as allegations included in the appellant's brief. Sheetz, Aiken & Aiken v. Louverdrape, Inc., 514 So. 2d 797 (Ala. 1987) (citing Green v. Standard Fire Ins. Co. of Alabama, 398 So. 2d 671, 673 (Ala. 1981)); see also Ex Parte Baker, 459 So. 2d 873 (Ala.1984). It is well established that an appellant has the duty to check the record and ensure its correctness before submitting it on appeal. Welch v. State, 455 So. 2d 299 (Ala.Crim.App.1984); Pope v. State, 387 So. 2d 300 (Ala.Crim.App.1980). Here, the Colemans did not invoke Rule 10(f), Ala.R.App.P., which provides for the correction or modification of the record on appeal, provided, of course, that there is a record.
The present record reveals no objection or exception to the trial court's oral instruction on § 32-5A-31 or to the oral charge on the doctrine of sudden emergency. We can only conclude from the present posture of the case before us that the record on appeal is correct. See Boyd v. State, 542 So. 2d 1247 (Ala.Crim.App.1988), aff'd, 542 So. 2d 1276 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 219, 107 L. Ed. 2d 172 (1989).
The Colemans urge us to consider the rationale set forth in Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986), and Wood Lumber Co. v. Bruce, 275 Ala. 577, 157 So. 2d 3 (1963). However, the principle of law stated in both of those cases is inapplicable to the case at hand.
In Grayco Resources, the appellee argued that Grayco waived its right to appellate review because the jury had retired before any objection was made. 500 So. 2d at 1031. The record reflected that Grayco Resources had made its objections to the trial judge during a whispered bench conference, prior to the time the jury retired. Here, the record does not reflect any objection to the trial judge's instructions, either before or after the jury retired. Therefore, in Grayco Resources, in contrast to the present case, there was no question that the appellant had properly objected to the court's charge.
The court in Wood Lumber Co. applied the common law rules of pleading, which required an exception in addition to an objection in order to preserve appellate rights. Under Ala.Code of 1940, Tit. 7, § 818, there was an automatic exception on requested written charges. With the adoption of the Alabama Rules of Civil Procedure, effective in July 1973, the statutory automatic exception to erroneous charges was no longer recognized. Parker v. Mid-South Bldg. & Improvement Co., 57 Ala. App. 202, 326 So. 2d 763 (1976).
Based on the foregoing, we hold that the Colemans waived any objection to the instruction on § 32-5A-31 and to the oral charge on the doctrine of sudden emergency given the jury at the close of the case. Thus, the Colemans' contention that the court erroneously instructed the jury regarding these statutes is without merit.
The Colemans also assert that the court gave an erroneous jury charge regarding § 32-5A-131. Taber contends that the Colemans did not properly preserve the error for review because their objection did not state grounds. Before we can address the merits of the Colemans' assertion, we must determine whether they properly preserved their objection for appellate review.
*402 The record reveals the following colloquy:
We follow the general rule established by Rule 51 as articulated in Burnett v. Martin, 405 So. 2d 23, 28 (Ala.1981), that "not only must an objection to the trial court's refusal to give an instruction be made, but the objection must be made specifically and must be supported by grounds in order for review to be had in the appellate court." Requiring a party to state to the trial court the grounds for his objection to a jury instruction affords the trial court an opportunity to correct any error in its charge before it becomes error with injury to reversal. Record Data Int'l, Inc. v. Nichols, 381 So. 2d 1 (Ala.1979); See also, Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). The failure to object and to state grounds for the objection is fatal to appellate review of the alleged error. Employers Cas. Co. v. Hagendorfer, 393 So. 2d 999 (Ala.1981) (citing Louisville & Nashville R.R. v. Garrett, 378 So. 2d 668 (Ala.1979)).
The objection made by the Colemans' counsel in this case was not sufficiently specific. Although Rule 51 does not contemplate that the objecting party deliver a discourse on the applicable law of the case, he must adequately state specific grounds for his objection in order to preserve for appellate review an erroneous instruction. McElmurry v. Uniroyal, Inc., 531 So. 2d 859 (Ala.1988); Nelms v. Allied Mills Co., 387 So. 2d 152 (Ala.1980); Gardner v. Dorsey, 331 So. 2d 634 (Ala.1976). The rule states that merely stating the matter to which a party objects is not enough; grounds must be stated in other than general terms for the objection to properly preserve the error for appeal. We have said that an objection designating only the subject treated by the court in its oral charge is insufficient to preserve the error. McElmurry, 531 So. 2d 859.
In order to comply with the policy behind Rule 51, a party should leave nothing at large in objecting to the court's oral charge. The objection must be definite. See Jones v. Americar, Inc., 283 Ala. 638, 219 So. 2d 893 (1969).
The requirement that an objecting party state the grounds for the objection is excused "where the party makes a specific objection and the charge involves a misstatement of substantive law." Louisville *403 & Nashville R.R., at 674; see also Gardner, 331 So. 2d 634. The Colemans readily admit that this case does not fall within that exception.
There is no claim that the law was misstated; rather, the Colemans argue that the oral instruction was not applicable to the evidence in this case and served only to mislead the jury in determining proximate causation.
Because of these facts, we hold that the Colemans waived any objection to the instruction on § 32-5A-131 by failing to object with sufficient specificity and to offer sufficient grounds for their objection. Thus, the Colemans' contention that the court erroneously instructed the jury regarding this statute is not before us.
We conclude that the appellants have shown no reversible error. The judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Sherry Taber was 15 years old at the time of the accident. Neither parent was in the car with her.
[2] The trial court gave the following as part of its charge:
"If a person without fault [of] his own is faced with a sudden emergency, he's not to be held [to] the same correctness [of] judgment and action as if he had time and opportunity to fully consider the situation. And the factif it be a factthat he does not choose the best or safest way of escaping peril or preventing injury, is not necessarily negligence. But the standard of care required in an emergency situation is that care which a reasonable prudent person would have exercised under the same or similar circumstances.
". . . .
"I'm going to read you a portion of § 32-5A-31 of the Code of Alabama, which provides as follows: The driver of any vehicle shall occupyI'm sorry. The driver of any vehicle shall obey the instructions of any official traffic control device applicable thereto placed in accordance with law, unless otherwise directed by a police officer and this portion of [§ 32-5A-131]. No vehicle shall be turned so as to proceed in the opposite direction upon any curve or upon any approach to or near the crest of a grade where such vehicle cannot be seen by the driver of any other vehicle approaching from either direction within 500 feet."
[3] This notation by the court reporter that jury deliberations began at 3:40 does not indicate that the jury actually began its deliberations at this point. Rather, the instructions from the court make it clear that the jury was not to begin deliberations until specifically instructed to do so. Therefore, we consider the objection to be timely. | October 26, 1990 |
48577ca0-3dd5-41fc-9fea-c8ee1a909519 | Stafford v. MISS. VALLEY TITLE INS. CO. | 569 So. 2d 720 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 720 (1990)
Carl STAFFORD, et al.
v.
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY.
89-688.
Supreme Court of Alabama.
September 28, 1990.
*721 Vincent F. Kilborn of Kilborn & Roebuck, Mobile, for appellants.
William M. Lyon, Jr. of McFadden, Lyon, Willoughby & Rouse, Mobile, for appellee.
HOUSTON, Justice.
The issue presented in this case is whether summary judgment was properly entered in favor of the defendant, Mississippi Valley Title Insurance Company ("Mississippi Valley"), with respect to the fraud claims that were made by the plaintiffs, Carl Stafford, Faith Stafford, Harold Walters, and Jacqueline Walters.[1] We affirm in part, reverse in part, and remand.
In 1982, Carl Stafford and his wife, Faith, contracted to purchase a house in Mobile from John George, Jr., and his wife, Merle George. The house is located on a lot that is approximately 660 feet from the nearest public road, U.S. Highway 90; the lot is landlocked except for a 30-foot-wide dirt road that traverses property owned by O.D. Dickerson and his wife, Mildred Dickerson, and connects the lot to the highway. The Georges agreed, among other things, to give the Staffords a warranty deed that conveyed the house and the lot as well as an easement over the dirt road, and to purchase a title insurance policy for the Staffords from Mississippi Valley, through Title Guaranty and Abstract Company of Mobile ("Title Guaranty").[2] Title Guaranty acted as the "settlement agent" at the closing, which was conducted by an employee of Title Guaranty, with the assistance of Sidney Harrell, an attorney who had been approved by Mississippi Valley. The Staffords were given a warranty deed pursuant to their agreement with the Georges; however, they were not shown or given a copy of a commitment for title insurance that had been issued by Mississippi Valley acknowledging that a "conflict of title" had been found with respect to the property during an examination of the probate records, and setting out certain requirements that needed to be met in order to facilitate the issuance of a policy. A policy was not issued until approximately six years later.
In 1984, the Staffords, suffering financial difficulties, were forced to convey the property to Faith Stafford's parents, Harold and Jacqueline Walters. The Staffords continued to live on the property. The deed from the Staffords to the Walterses also recites the conveyance of an easement over the dirt road. In April or May 1987, O.D. Dickerson obstructed the dirt road with a fence, disputing the Walterses' claim to an easement, and, thereafter, refused to remove it. After hiring an attorney, who investigated the matter, the Staffords and the Walterses learned of the title problems that had been found and acknowledged by Mississippi Valley in 1982. After being notified of the problem by the plaintiffs' attorney and being apprised of possible litigation, Mississippi Valley accepted liability for closing the sale without satisfying the requirements that had been set out in the commitment, and issued a policy in 1988, effective retroactively to 1982, insuring against any defect in the title.
On September 12, 1988, the Staffords and the Walterses filed suit, alleging that Mississippi Valley, through its authorized agents, had intentionally or recklessly misrepresented to them that title to the property was clear, giving a cause of action pursuant to Ala.Code 1975, § 6-5-101; that Mississippi Valley, through its authorized agents, had concealed material information from them concerning the state of the title *722 to the property, giving a cause of action pursuant to Ala.Code 1975, § 6-5-102; and that Mississippi Valley, through its authorized agents, had promised them that they would receive a clear title and that they would be provided with a policy insuring the title to the property, without any intention of keeping those promises, giving a cause of action pursuant to Ala.Code 1975, § 6-5-104(b)(4).
Summary judgment was proper in this case if there was no genuine issue of material fact and Mississippi Valley was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Mississippi Valley to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the plaintiffs to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against them. Dupont v. Yellow Cab Co. of Birmingham, Inc., 565 So. 2d 190 (Ala.1990). In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to the plaintiffs and must resolve all reasonable doubts against Mississippi Valley. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
After examining various depositions, affidavits, and exhibits, the trial court entered a summary judgment, without stating its reasons for doing so. The plaintiffs argue that the trial court erroneously determined that their fraud claims were barred by the applicable statute of limitations. Mississippi Valley argues that the plaintiffs' claims were barred by the statute of limitations and, therefore, that the summary judgment was proper.[3] We note that even if we cannot ascertain from the record the grounds upon which the trial court entered its judgment, if the judgment is correct it is due to be affirmed. Davison v. Lowery, 526 So. 2d 2 (Ala.), cert. denied, 488 U.S. 854, 109 S. Ct. 140, 102 L. Ed. 2d 113 (1988).
Initially, we note that it is undisputed in the record that no one connected with the closing made any representations or promises to, or concealed any information from, the Walterses concerning the state of the title to the property. The Staffords' conveyance to the Walterses occurred approximately two years after the transaction that forms the basis of this suit. If a fraud was committed, it was committed against the Staffords.
The evidence, viewed in a light most favorable to the Staffords, shows that Title Guaranty acted as the "settlement agent" at the closing; that an employee of Title Guaranty, with the assistance of an attorney who had been approved by Mississippi Valley, conducted the closing; that the Staffords were told by the attorney that title to the property was clear, or that it would be made clear, and that they would receive a policy insuring the title to the property;[4] that it was the practice of Mississippi *723 Valley to issue policies within a reasonable time; that the Staffords never received a copy of the commitment and were never informed by anyone connected with the closing of any problems concerning the state of the title until those problems later surfaced; that subsequent to the closing, the requirements set out in the commitment were never satisfied; and that a policy was not issued until approximately *724 six years after the closing, when the problems with the title began to surface and litigation became imminent.
Unless, as Mississippi Valley contends, the applicable statute of limitations was a bar, the summary judgment was not proper with respect to the Staffords' claims for intentional or reckless misrepresentation under § 6-5-101 (i.e., that Mississippi Valley, through Title Guaranty, had intentionally or recklessly misrepresented to them that title to the property was clear); for concealment of material information under § 6-5-102 (i.e., that Mississippi Valley, through Title Guaranty, had concealed the cloud on the title); and for promissory fraud under § 6-5-104(b)(4) (i.e., that Mississippi Valley, through Title Guaranty, had promised them that they would receive a clear title and that they would be provided with a policy insuring the title). Again, the evidence, viewed in a light most favorable to the Staffords, shows that the Staffords were told at the closing that title to the property was clear, or that it would be made clear, and that they would receive a policy insuring the title. The evidence requires that the trier of fact determine exactly what was said to the Staffords at the closing. If the trier of fact finds that the Staffords were told that title to the property was clear, then it must also determine whether that false representation was recklessly or intentionally made. If the trier of fact finds that the Staffords were told that title to the property would be made clear and that a policy insuring the title would be issued, then it must also determine whether those promises were made with an intent to deceive. Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295 (Ala.1989). With regard to the Staffords' claim alleging concealment of material information, the evidence was sufficient to show that, under the circumstances, the Staffords should have been informed of the cloud on the titlethat information being material to their decision to go forward with the purchase. See, e.g., Deupree v. Butner, 522 So. 2d 242 (Ala.1988).
Effective January 9, 1985, the Legislature repealed Ala.Code 1975, § 6-2-39, the one-year statute of limitations applicable to fraud actions, and transferred the one-year actions to § 6-2-38, the two-year statute, and amended § 6-2-3, the "saving clause," to recognize that fraud actions were thenceforth required to be filed within two years of the accrual of the cause of action.[5] See Watson v. Trail Pontiac, Inc., 508 So. 2d 262 (Ala.1987). Under § 6-2-3, a claim for fraud is considered as having accrued at the time of "the discovery by the aggrieved party of the fact constituting the fraud." Fraud is "discovered" when it ought to or should have been discovered. Thus, the time of "discovery" is the time at which the party actually discovered the fraud, or had facts that, upon closer examination, would have led to the discovery of the fraud. Lader v. Lowder Realty Better Homes & Gardens, 512 So. 2d 1331 (Ala.1987). Thus, whether the Staffords' claims were barred by the two-year statute of limitations depends upon when the Staffords actually discovered the fraud or when they had facts before them that, upon closer examination, would have led them to discover the fraud. After carefully reviewing the record, we conclude that a fact question exists as to when the Staffords "discovered" the fraud. The evidence, viewed in a light most favorable to the Staffords, shows that the Staffords never received a copy of the commitment for title insurance and that no one connected with the closing ever informed them that there were problems with the title until after Dickerson disputed the Walterses' claims to an easement over the dirt road in April or May 1987 and an investigation was commenced by the Staffords' attorney. We disagree with Mississippi Valley's contention that Mr. Dickerson's refusal in 1983 or 1984 to allow the Staffords to dig a ditch on one side of the dirt road constituted notice to the Staffords that he disputed their right to use the road as a means of ingress to and egress from their lot and, thus, constituted notice that a fraud might have been committed at the time of the closing with respect to the state of the title to their property. Mr. Stafford testified that he knew that Dickerson owned the fee *725 simple title to the property over which the dirt road ran and that he thought that Dickerson had the right to prohibit him from physically altering it. Mr. Stafford further testified that at one point Dickerson suggested to him that he put a layer of flagstone on the road in order to improve it.[6] Dickerson never blocked the road prior to April or May 1987, and he never attempted to prohibit the Staffords from using it. Suffice it to say that there is evidence from which it can be reasonably inferred that the Staffords did not have facts before them until April or May 1987, when Dickerson blocked the road, that would, as a matter of law, have apprised them of a possible fraud in connection with their purchase of the property. Our conclusion in this regard is simply a recognition that the fact that the question of when a party actually discovered or should have discovered the existence of a fraud is ordinarily one for the trier of fact. Davis v. Brown, 513 So. 2d 1001 (Ala.1987). The Staffords filed their suit on September 12, 1988; therefore, Mississippi Valley was not entitled to a judgment as a matter of law on the Staffords' claims on the ground that the two-year statute of limitations had run.
For the foregoing reasons, the judgment is affirmed as to the Walterses; however, it is reversed as to the Staffords' claims against Mississippi Valley, and the case is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ADAMS and STEAGALL, JJ., concur.
[1] The record shows that other claims remain pending against Mississippi Valley; however, the trial court's judgment with respect to the fraud claims was certified as final pursuant to Rule 54(b), A.R.Civ.P.
[2] Title Guaranty later changed its name to Mississippi Valley Title of Mobile, Inc., and, thereafter, merged with Mississippi Valley, which assumed all of its assets and liabilities.
[3] Mississippi Valley also maintains that the Staffords were conveyed a good title and that it has now taken legal action to establish a good chain of title for the record. However, as our discussion will show, this has no bearing upon our decision with regard to the propriety of the summary judgment.
[4] Carl Stafford's deposition testimony reads, in pertinent part, as follows:
"Q. But at the closing you signed some papers?
"A. Uh-huh.
"Q. And that was basically it?
"A. He [Sidney Harrell] went over the contract to see whatI didn't understand. I never bought a house. So he went over it basically with us to tell us.
"Q. Tell me what you remember that he said.
"A. Well, that we were entering into an agreement to pay said amount of money. Now the real estate broker had informed me about the title insurance.
"Q. Right.
"A. I didn't understand what insuranceI was selling life insurance over in New Orleans. So insurance, when it came up, I wondered what it was. He said it was to search the title to guarantee that we had a clean title or we'd get a clean title. And so when we were going back over the contract at that time, he showed where Mr. George was going to purchase the title insurance.
"Q. Right. Was Mr. Cain [the real estate broker] with you at the closing or not?
"A. No.
"....
"Q. Okay. Now, let's go back to Title Guaranty. What did Mr. Harrell tell you, if anything, about the title insurance.
"A. Well, Mr. Cain had explained to me what title insurance was.
"Q. I understand.
"A. So when Mr. Harrell went down the list and showed me title insurance, I already understood what it meant to me and that was that they were insuringthey were going to check the title and be sure that it was good.
"Q. He showed you where Mr. George was going to pay the money to them, $269, $269.50; right?
"A. Right.
"Q. Is that basically all he told you is that here is where Mr. George is going to pay for the policy?
"A. Uh-huh.
"Q. Did he tell you anything else?
"A. That that was to insure a clear title, a clean title.
"Q. Tell me exactly what he said about that.
"....
"A. Well, I understood it from Mr. Cain what it was.
"Q. I understand.
"A. So when he said this is the title insurance, I agreed with him, because I understood. He said this is to insure a good title. That was basically it.
"Q. There's a difference between saying this is the title insurance and this is to insure a clean title. If he saidor did he say, Mr. George is paying for your title insurance policy
"A. Uh-huh.
"Q. you'll have a title insurance policy. What did he say exactly?
"....
"A. Like I said, I understood what it meant to me. And that was ...
"....
"A. All he said is here is the title insurance that Mr. George is going to purchase to insure a clear title.
"Q. That's fine.
"A. To the property.
"....
"Q. Okay. I thought I just asked you who represented that you would receive clear title to the property and you said Mr. Cain.
"A. Well, right. That answer wasthat answered that question when he said that.
"Q. Did he say you will receive a title insurance policy
"A. Uh-huh.
"Q. that will insure
"A. That I have a clear title.
"Q. title to your property?
"A. Right.
"Q. Right?
"A. Right.
"Q. Who and when did anyone from Title Guaranty represent that to you?
"....
"Q. Other than Sid Harrell.
"A. No one.
"Q. No one. Okay. And Sid Harrell represented that you would receive a policy of title insurance; correct?
"A. Right.
"Q. Insuring the title; correct?
"A. Right.
"Q. Did you not so in fact receive a policy insuring the title?
"A. No.
"Q. All right.
"A. Not until
"Q. Not until 1988; right? But [you] have one now?
"A. Uh-huh.
"Q. Okay. Exactly. You have a policy of title insurance insuring the title to your property; right?
"A. Uh-huh.
"Q. Then tell me what was untrue about the statement that Mr. Harrell made to you.
"....
"A. That I would receive it?
"Q. Yes, sir. And that your property would be insured, which it now is.
"A. It took a lawyer to finally do it for us. Nothing was about what he said.
"Q. Run that back by me. What he said was true.
"A. Yes.
"Q. You have the policy and the property is now insured; is that correct?
"....
"A. No, sir. That'sas far as him saying we would get one, yes, we did receive one.
"Q. Okay. So did he say anything else? I mean, really I'm just trying to find out. I wasn't there. You were there. I'm trying to get you to tell me what he said.
"A. I mean, that's basically it. That's it.
"Q. Okay."
[5] See Ala. Acts 1984-85, Act No. 85-39.
[6] This testimony appeared in an affidavit that is challenged by Mississippi Valley as being a belated attempt by the Staffords to create an issue of fact by contradicting, without explanation, previous deposition testimony that was given by Carl Stafford. See Robinson v. Hank Roberts, Inc., 514 So. 2d 958 (Ala.1987). As we view the record, Carl Stafford's affidavit testimony did not contradict his prior deposition testimony, but, instead, merely explained or supplemented it. Even assuming, however, that Carl Stafford's affidavit did, without explanation, contradict his prior deposition testimony and, thus, should not have been considered, our conclusion that a fact question exists as to when the Staffords discovered the fraud would not be affected. | September 28, 1990 |
ba295e38-561a-44d9-967f-ef79d6ca6042 | RNH, INC. v. Beatty | 571 So. 2d 1039 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1039 (1990)
RNH, INC., et al.
v.
Billy M. BEATTY.
89-1105.
Supreme Court of Alabama.
October 26, 1990.
*1040 Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, for appellants.
Ira De Ment and Donald E. Fazekas, Montgomery, for appellee.
SHORES, Justice.
This case involves the sale of stock in a corporation operating a drugstore in downtown Montgomery, Alabama. On November 7, 1988, the plaintiff, RNH, Inc., and the defendants entered into an agreement whereby RNH, Inc., bought and the defendants sold all of the outstanding shares of stock of Price Drug Company, Inc., an Alabama corporation.
On December 13, 1988, RNH, Inc., Price Drug Company, Inc., and Robert N. Holden sued Billy M. Beatty, a former owner of stock in Price Drug Company, Inc., alleging that Beatty had breached the stock purchase agreement by relocating another downtown drugstore, City Drug, which he owned.[1] RNH, Inc., sought damages from Beatty based on fraud and misrepresentation. Additionally, the plaintiffs sought to enjoin Beatty from operating City Drug and to rescind the stock purchase agreement. The trial court entered a summary judgment for Beatty, and denied the plaintiffs' motion for summary judgment. The plaintiffs appeal. We affirm.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for determining whether to enter a summary judgment. 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. "In determining whether summary judgment was properly granted, the trial court must view the motion in a light most favorable to the non-movant. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981)." Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985). Rule 56 is read in conjunction with the "substantial evidence rule" (§ 12-21-12, Code 1975) for actions filed after June 11, 1987. See Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). In order to defeat a properly supported motion for summary judgment, the plaintiff must present "substantial evidence," i.e., evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
We first look at whether the trial court erred in entering the summary judgment for Beatty on the plaintiffs' claim that Beatty violated the stock purchase agreement by relocating City Drug. We also look at whether the trial court erred in entering the summary judgment on the plaintiffs' claims of fraud and misrepresentation.
The evidence reflects that prior to 1986 Beatty worked as a pharmacist for Laddie Price, who then owned Price Drug Company. After 10 years, Beatty became a stockholder in Price Drug Company. On December 1, 1986, Beatty purchased City Drug, a competing drugstore in downtown Montgomery. He retained his stock in Price Drug Company. Beatty is the sole stockholder of City Drug and, since purchasing it, has operated it in competition with Price Drug Company.
After Laddie Price died, Robert N. Holden, the president of RNH, Inc., sought to *1041 acquire all of the stock of Price Drug Company, including that held by Beatty. The evidence before the trial court reflects that a memorandum of understanding was executed by the shareholders of Price Drug Company. Subsequently, a 91-page stock purchase agreement was presented to Beatty's attorney, Clyde Smith, on November 4, 1988. Smith advised Beatty that he could not sign the contract because of the "non-solicitation" clause in paragraph 17 and the "preservation of organization" clause in paragraph 19. Those clauses read as follows:
(C.R. 40.) Smith testified by deposition that he called both George Kent, Holden's banker, and Howard Neiswender, Holden's attorney, and advised them that Beatty could not sign the contract because, as the owner of City Drug, he was already in direct competition with Price Drug Company and planned to continue in competition.
On the morning of the scheduled closing date, a telephone conference was held between Smith, Kent, Neiswender, and a third party. Smith testified that during that telephone conference Neiswender informed him that the contract was being amended to delete the provisions Beatty found objectionable. The two clauses were amended as indicated by this emphasized wording:
(C.R. 41.) Ultimately all sellers, including Beatty, executed the stock purchase agreement as presented by the plaintiffs' attorney, with the amended paragraphs 17(b) and 19.
Smith testified that he recalled asking Neiswender at the closing what was intended by the language in paragraph 17 stating that the sellers would not "directly solicit the customers of Price Drug Company, excluding all casual contacts and advertising in the normal course of business." He said that Neiswender said, as an example, that the language would prohibit the sellers from standing in front of Price Drug store with an armful of fliers and passing them out to customers entering the store.
There is no dispute that plaintiff Holden and his attorney knew at the time the agreement was drafted and signed that Beatty was operating City Drug in direct competition with Price Drug Company. Further, Holden testified that no one ever represented to him that the City Drug store would never be moved from where it was located when Price Drug Company *1042 was sold. Nor was there any evidence that Holden expressed any concern to Beatty or to Beatty's attorney over a change in the location of City Drug.
At some point after the sale of Price Drug Company, Beatty moved City Drug to another building in downtown Montgomery, one and a half blocks from its original location. Beatty said that this move was made because the City Drug building was deteriorating and that it was made after his landlord had refused to make the premises suitable.
The plaintiffs sued, alleging that the relocation of City Drug violated the terms of the agreement. Plaintiff Holden testified that the new City Drug store was larger than the old store and, consequently, in his opinion, violated the agreement. Holden further testified as follows:
(R. 16-18).
It is clear from the record in this case that Beatty did not violate the terms of the agreement. At the time the agreement was signed, the plaintiffs were aware that Beatty had been in direct competition with Price Drug Company for two years and that he planned to remain in competition. Although Holden testified that the relocation of City Drug concerned him, his accountant, and his tax attorney, he never conveyed this concern to Beatty, and Beatty never agreed not to change his location.
Further, the record supports the entry of summary judgment for Beatty on the plaintiffs' claims of fraud and misrepresentation. The plaintiffs contend that Beatty knew before he signed the contract that he would move City Drug, and that he therefore had a duty to disclose his plans to them. The plaintiffs cite us to the Alabama fraud statutes, Code of Alabama 1975:
Did Beatty have a duty to disclose? Our case law has held that a duty to disclose exists in circumstances where parties are not dealing at arm's length. Williams v. Bedenbaugh, 215 Ala. 200, 110 So. 286 (1926), cited in Bank of Red Bay v. King, 482 So. 2d 274, 285 (Ala.1985). Whether there is a duty to disclose depends upon the relation of the parties, the value of the particular fact, the relative knowledge of the parties, and other circumstances. Id. "When both parties are intelligent and fully capable of taking care of themselves and dealing at arm's length, with no confidential relations, no duty to disclose exists when information is not requested, and mere silence is then not a fraud. There must be active concealment or misrepresentation." Mudd v. Lanier, 247 Ala. 363, 377, 24 So. 2d 550, 562 (1945), quoted in Jim Short Ford Sales, Inc. v. Washington, 384 So. 2d 83, 86 (Ala.1980).
In this case Beatty had no duty to disclose. The record shows clearly that the *1043 parties to this agreement were knowledgeable businessmen dealing at arm's length and acting upon the advice of competent attorneys. The agreement was negotiated and signed, with both sides inquiring as to the competition aspect of the contract. At no time was the question of relocation presented as a concern, and Beatty never agreed not to move City Drug, nor was he asked not to do so. Throughout the negotiations Beatty and his lawyer made it clear to the plaintiffs that he planned to continue in competition with Price Drug Company.
On motion for summary judgment, when the movant makes a prima facie showing that no genuine issue of material fact exists, as in the present case, the burden then shifts to the non-movant to show "substantial evidence" in support of his position. Ala.Code 1975, § 12-21-12; Bean v. Craig, 557 So. 2d 1249, 1252 (Ala.1990). The plaintiffs have failed to produce substantial evidence of breach of contract, fraud, or misrepresentation on the part of Beatty.
The final issue raised by the plaintiffs is whether the trial court erred in refusing to consider their final supplemental submission of an affidavit relating to the financial operation of Price Drug Company. The motion for summary judgment was heard on May 11, 1989, and was submitted to the trial court at that time. The plaintiffs' supplemental submission was filed on August 24, 1989. Beatty filed a motion to strike the supplemental submission, contending that the material contained therein was speculative.
Whether to allow supplemental affidavits is discretionary with the trial court. Rule 56(e), A.R.Civ.P. A trial judge may consider a tardy affidavit if it is presented to him before his ruling on the summary judgment motion. Guess v. Snyder, 378 So. 2d 691, 693 (Ala.1979).
In this case the trial judge granted Beatty's motion to strike the supplemental material. The affidavit attempted to show a decline in the income of Price Drug Company. However, the affidavit did not set forth any sworn facts that would be admissible in evidence showing that any decline in sales was proximately caused by wrongdoing on the part of Beatty. The trial judge apparently found that the affidavit failed to comply with Rule 56(e), A.R. Civ.P., as being speculative and based upon the "opinion" of the affiant. We find no error in this regard.
For the reasons stated herein, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES and HOUSTON, JJ., concur.
[1] The complaint also named as defendants other former owners: George Warren, AmSouth Bank, N.A., and Ilean D. Price, as co-executors of the estate of Laddie L. Price, deceased. These defendants were dismissed by order of the trial court on June 19, 1989. (C.R. 85.) | October 26, 1990 |
a6102b12-083f-4192-8966-00d8f0f6d466 | Dunning v. Reynolds | 570 So. 2d 668 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 668 (1990)
Etta E. DUNNING and Jan Judkins
v.
George REYNOLDS, as Probate Judge of Jefferson County, et al.
89-1758.
Supreme Court of Alabama.
October 10, 1990.
Cellie W. Miller of Barnes, Dunning & Miller, and Jerome Tucker, Birmingham, for appellants.
Edwin A. Strickland, Birmingham, for appellees George Reynolds and Polly Conradi.
Michael L. Edwards of Balch & Bingham, Birmingham, for appellee Jeff Germany.
Gregory H. Hawley of Maynard, Cooper, Frierson & Gale, and James L. North, Birmingham, for appellees John Baker and the Democratic Party of Alabama.
Terry McElheny, Birmingham, for appellee Sheriff Mel Bailey.
Richard F. Allen of Capell, Howard, Knabe & Cobbs, Montgomery, for amicus curiae Secretary of State Perry A. Hand.
PER CURIAM.
Etta Dunning and Jan Judkins appeal from an order dismissing their complaint seeking a declaratory judgment and a writ of mandamus to have Jeff Germany's certificate of nomination revoked and his *669 name removed from the general election ballot. The trial judge dismissed the complaint ex mero motu for lack of jurisdiction. We affirm.
The complaint avers that on May 23, 1990, petitioner Jan Judkins filed a formal complaint with the Jefferson County Democratic Executive Committee challenging the qualifications of Germany. The record fails to show affirmatively that petitioner exhausted her remedies before the State Democratic Executive Committee prior to filing the instant action. Therefore, we find no error in the trial court's order of dismissal. Ex parte Skidmore, 277 Ala. 221, 168 So. 2d 483 (1964).
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The sole question presented in this expedited appeal is whether this Court will enforce the penalty provisions of the Fair Campaign Practices Act of 1988, relating to disclosure of contributions made after a person becomes a candidate for election.
The specific legal question presented is whether a circuit court has jurisdiction of a declaratory judgment action seeking a determination of whether a political candidate for a local office could be certified as the nominee of his party when he had failed to comply with the provisions of Ala.Code 1975, § 17-22A-4, which require that "[w]ithin five days after [a] person becomes a candidate, such person shall file with the secretary of state or judge of probate ... a statement showing the name of not less than two nor more than five persons elected to serve as the principal campaign committee for such candidate."[1]
The complaint here reads, as follows:
The trial court, apparently on its own motion, on August 2, 1990, entered the following order:
The majority, in affirming the action of the trial court, states, in part, that
I think that the complaint is sufficient to state a claim under the provisions of the Rules of Civil Procedure, because I am of the opinion that the trial court had jurisdiction of the complaint, and could have enforced the sanctions of the Fair Campaign Practices Act, without first filing a proceeding before the democratic executive committee. To vest in a political party the absolute power to enforce the sanctions, in my opinion, fails to carry out legislative intent. It is my opinion that the legislature, in adopting the Fair Campaign Practices Act, and in providing serious penalties for its violation, including the filing of criminal proceedings against a person who violates it, never intended that a political party would be able to judge whether the Act, in fact, had been violated. In this case, the plaintiffs claim that the party has illegally certified Jeff Germany as the nominee of that party. That is a justiciable controversy which a circuit court clearly has the power to resolve. I do not believe that a circuit court is powerless to order the probate judge of a county not to place the name of a defaulting candidate on the November general election ballot. This Court, by divesting the trial court of jurisdiction, in my judgment, fails to follow prior precedents of this Court, which squarely hold to the contrary. Consequently, I am compelled to dissent.
The facts of this case are not seriously disputed. The pertinent facts upon which I base my dissent are contained in the complaint of the plaintiffs which I have quoted above.[2]
My conclusion that the Court errs is based upon my interpretation of what the legislature intended when it adopted the Fair Campaign Practices Act in 1988. That Act made some major changes in the law regarding disclosures that must be made by candidates, and when they must be made. By defining when a person becomes a "candidate," the law effected a major change in the time when a candidate must file the statement which Germany allegedly failed to timely file in this case.
Ala.Code 1975, § 17-22A-21 defines "candidate" as follows:
*672 Based upon my reading of the complaint, the plaintiffs allege that Germany became a "candidate," within the meaning of the Act when he received contributions of more than $1,000.00. If those allegations are true, and as I understand the law of pleading, they must be taken as being true on a motion to dismiss, Germany failed to file the statement required by the Act. If Germany failed to file the statement timely, he was in the same boat with other candidates failing to file timely in this year's elections.[3]
Admittedly, the disclosure requirements of the Fair Campaign Practices Act are strict, and the penalty provisions of the Act are harsh, but I am totally convinced that the legislature, right or wrong, intended to make the Act tough, intended to tighten up the reporting requirements for candidates, and intended to make the penalty severe.
As the majority points out, the record does show that Dunning first filed a challenge of Germany's right to be a candidate with the Jefferson County Democratic Executive Committee, but I cannot see how that would foreclose her from insisting on her right to have Germany's nomination revoked under the provisions of § 17-22A-21, which provide:
Dunning and Judkins, in their declaratory judgment action, asked, among other things, that the judge of probate be directed not to certify Germany's name as the Democratic nominee because of Germany's failure to comply with the provisions of the Fair Campaign Practices Act.
As above stated, the trial court dismissed the declaratory judgment proceeding on the ground that it lacked jurisdiction, citing as authority for the dismissal this Court's decision in Ex parte Baxley, 496 So. 2d 688 (Ala.1986), a case in which a candidate for Governor in the Democratic primary claimed that the winner of the primary election had received illegally cast votes.
Apparently, the trial judge considered that the appellants were contesting the election in the same manner as Baxley had done in Ex parte Baxley. I think the trial court erred in this respect, but in any event, the appellants should not have their complaint dismissed. It is clear to me that they were entitled to get at least a declaration of their rights. In the past, this Court has entertained such actions and has strictly enforced provisions of law similar to those which are involved here.
Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967), is just such a case. There, Thomas F. Gilmore was named as a candidate for sheriff in a mass meeting of the Greene County Freedom Organization ("The certificate had on its back a drawing which resembles a black panther"). Gilmore, like Germany, failed to file with the probate judge a statement designating a committee to receive and disburse campaign funds as required by § 274, Title 17, Code 1940, as amended. Gilmore, like Germany, later attempted to refile his declaration of candidacy and file contemporaneously therewith the required statement. The Democratic nominee for sheriff filed an action in the circuit court, just as Dunning has done here, in which he sought to have the court enjoin the probate judge from certifying the name of Gilmore as a candidate for sheriff, the same relief Dunning requested in her declaratory judgment petition.
This Court succinctly stated the law:
281 Ala. at 64-65, 199 So. 2d at 76-77.
Thomas Gilmore was not allowed to have his name on the general election ballot in 1966. In Jones v. Phillips, 279 Ala. 354, 185 So. 2d 378 (1966), the candidate strenuously argued that the provisions of law relating to the filing of the statement required by § 274 of Title 17, Code 1940, were directory merely. This Court answered that argument as follows:
"This court has already held that the filing provisions under these statutes are mandatory before elections. In McCutcheon v. Thomas, 261 Ala. 688, 75 So. 2d 649, we said:
"As already noted, Tit. 17, §§ 274 and 275, have been the law in Alabama for fifty-one years. Thirty years ago, the same question involved here was asked of the Attorney General by the Probate Judge of Madison County, and the construction of the statute at that time was that the name of the candidate failing to comply with Sec. 274 (then Sec. 588, Code 1923) should not go on the ballot. Biennial Report of Opinions of the Attorney General, 1934-1936, p. 610. The legislature reenacted the statute in 1940, and again in 1959, with clarifying amendments *674 as to requirements of members of the legislature and the measurement of the five-day period."
279 Ala. at 357-58, 185 So. 2d at 380-81.
Arguing pro se before this Court, Jones claimed that an affirmance of the trial court's decree, which had enforced the penalty provisions of the Corrupt Practices Act, "would mark him as being `corrupt' and that his future career might be hurt if he was always to be branded `corrupt'." This Court responded:
279 Ala. at 358, 185 So. 2d at 381.
In Owens v. Heartsill, 279 Ala. 359, 185 So. 2d 382 (1966), Guy Owens failed to follow the requirements of law, just as Jones had done. He also was not allowed to be a candidate for the legislature.
In Jones and Owens, the court challenges appear to have been made before the primary election there, but in Herndon v. Lee, the challenge was made by the democratic nominee to keep an opponent's name off the general election ballot.
The Fair Campaign Practices Act specifically provides that a "certificate of election or nomination already issued to any person elected or nominated to state or county office ... shall be revoked." (Emphasis added). The legislature used the word "shall," and also said that an election or nomination not only could be set aside, but must be set aside. The majority errs by failing to give force to these penalty provisions of the 1988 Act.
By dissenting in this case, I should not be understood as passing judgment on the qualifications of either Mr. Germany or Ms. Dunning to serve as a county commissioner, nor to each candidate's good faith in seeking a resolution of the matter. Based upon my research, however, I believe that the plaintiffs did state a cause of action and I would not affirm the trial court's dismissal of their complaint.
Admittedly, if plaintiffs could prove their allegations, the result I would reach is harsh, but I think that the legislature intended for the result to be harsh. I must assume that the legislature, at the time it passed the Fair Campaign Practices Act, was aware of how the enforcement provisions of our prior law had been applied in Jones and Owens. In short, I think that the legislature deliberately intended to tighten up disclosure provisions of the law.[4]
There were attempts made when the Fair Campaign Practices Act was going through the legislature to amend it and lessen the harshness of the penalty provisions,[5] but the legislature refused to accept the amendment, and left intact those penalty provisions of the Act that are now contained in § 17-22A-21.
The penalty provisions of our law were enforced against Thomas Gilmore, J. Fletcher Jones, and Guy Owens not because any of them was "corrupt," but because, in each case they failed to follow, or overlooked, a mandatory requirement of law that applied to each candidacy for public office.
Justice Merrill in Jones v. Phillips, likened such failure to file to "overlook[ing] the scheduled departure of a train or plane and thereby miss[ing] his trip or connection." *675 279 Ala. at 358, 185 So. 2d at 381. I think Mr. Germany missed his flight. I would reverse.
[1] Section 17-22A-4 also allows a candidate to name himself or herself as the principal campaign committee.
[2] The parties, in their briefs, have essentially agreed on other facts, but I do not need to refer to them in showing that the trial court should not have dismissed the plaintiffs' complaint.
[3] Megginson v. Turner, 565 So. 2d 247 (Ala. 1990), represents such a challenge, and this Court did not question its jurisdiction in the case, which it clearly had a right to do ex mero motu. Also, I can take judicial notice of the fact that other candidates were also challenged for failure to follow the same provisions of the Fair Campaign Practices Act with which Germany failed to comply.
[4] It is a matter of common knowledge that the public is interested in the source of campaign contributions to candidates for public office.
Before the adoption of the new Act, persons who were avowed candidates could campaign, receive contributions, and make disbursements without having to report them, if the contributions were made before they officially declared their candidacy. Under the old law, candidates could wait until near the last day of the qualifying period to file their declaration of candidacy and would then not have to list contributions they had received before that date. The new law changes that.
[5] See Senate Journal, 1988 1st Extraordinary Sess., at 516-22. | October 10, 1990 |
760d92ae-46b9-4369-85b7-87c1e745fcac | Harmon v. Ingram | 572 So. 2d 411 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 411 (1990)
T.L. HARMON
v.
James E. INGRAM.
89-612.
Supreme Court of Alabama.
November 9, 1990.
*412 Tommie W. Fletcher, Pell City, for appellant.
Billy L. Church of Church, Trussell & Robinson, Pell City, for appellee.
ADAMS, Justice.
James E. Ingram brought an action to quiet title to a 25-foot strip of real estate, ownership of which was claimed simultaneously by Mr. Ingram and T.L. Harmon. The Honorable H.E. Holladay, Circuit Judge of St. Clair County, sitting without a jury, entered judgment for Mr. Ingram. We affirm.
In 1914, W.N. Maddox conveyed to T.W. Elliott a tract of real estate located in Section 26, Township 17, Range 3 east, in St. Clair County near the old town of Easonville. The conveyance described the property conveyed in the following manner:
This two-acre tract, known as the "Lane," originally served as a means of access to a pecan orchard located in the north half of the southwest quarter of the southeast quarter of Section 26.
In 1924, there was a conveyance made by T.W. Elliott to J.K. Spradley. Included in *413 the deed was a conveyance, described in the following manner:
The deed from T.W. Elliott to J.K. Spradley, thus, specifically described only the eastern portion of the Lane, that portion defined as "running around the North and West side of the said described W.N. Maddox lot." It omitted the particular metes and bounds description of the western half of the Lane contained in the deed from Maddox to Elliott.
Sometime between 1924 and 1941, Mrs. J.K. Spradley deeded approximately one acre of land to the Willis family. The Willis acre was a narrow strip of land located along and north of the land line separating the southeast quarter of the southeast quarter from the northeast quarter of the southeast quarter of Section 26. The disputed western portion of the Lane, thus, lay to the south of, and adjacent to, the Willis acre. The Willises subsequently conveyed their land along the Lane to the W.D. Masters family, who, in 1959, deeded the acre to Mr. Harmon.
Meanwhile, in 1943, Mrs. J.K. Spradley gave to T.L. Harmon a deed conveying property described in terms virtually identical to those contained in the 1924 deed from Elliott to Spradley, with an express exception for the acre that she had previously conveyed to the Willis family. When Mr. Harmon eventually purchased the excepted area from the Masterses, he owned all of the land originally conveyed in the deed from T.W. Elliott to J.K. Spradley.
In July 1964, the water from Lake Logan Martin rose to cover the town of Easonville and most of the Lane. At that time, Mr. Harmon, who claimed to have used, for pasture, the eastern portion of the Lane since 1943 and the western portion since 1959, discontinued such use of the Lane and, thereafter, only occasionally visited the Lane to pick blackberries and to remove the vegetation from small portions of the Lane by the water's edge.
In 1971, Mavis Roper, James Ingram's sister, having purchased a tract of land to the south of and just across the lane from the former Masters lot, obtained a quitclaim deed to the western portion of the Lane from Lucille Elliott Maddox, the sole heir of T.W. Elliott. That deed described the Lane as follows:
On August 12, 1988, Mavis Roper, in a deed describing the Lane in identical terms, quitclaimed her interest in the property to Mr. Ingram.
In August 1988, Mr. Ingram entered the Lane to clear away a growth of brush and trees, and he encountered Mr. Harmon. At that time, the two men engaged in a disagreement regarding the ownership of the Lane; Mr. Ingram subsequently brought this action to quiet title. Mr. Harmon filed a counterclaim, contending that he had obtained ownership either through his chain of title or through a period of adverse possession extending from 1959.
The parties presented evidence ore tenus in a trial spanning two days. At the conclusion of the trial, the judge, accompanied by the parties and their respective counsel, visually inspected the property. Thereafter, the trial judge entered judgment in favor of Mr. Ingram. Mr. Harmon moved for judgment notwithstanding the verdict, *414 reasserting the contentions he had raised in his counterclaim. The judge denied that motion and Mr. Harmon has appealed pro se.
Mr. Harmon grounds his documentary claim to the Lane on his deed from his predecessor in title, Mrs. Spradley. Mr. Ingram contends that when T.W. Elliott conveyed property to J.K. Spradley, he granted only the eastern portion of the Lane and retained the western portion for himself. The legal issue, therefore, is whether the language of conveyance in the deed from T.W. Elliott to J.K. Spradley includes the disputed western portion. We hold that it does not.
"`The universal test in fixing a boundary line is, first, natural objects, such as rivers, trees, and other objects of nature; second, artificial marks that were placed on the ground by the surveyor; and third, course and distance.'" Van Valkenburg v. Geron, 249 Ala. 467, 471, 31 So. 2d 767, 770 (1947) (quoting Kyle v. Clinkscales, 22 S.W.2d 729, 731 (Tex.Civ.App. 1929)). Thus, calls in a deed that refer to natural monuments predominate over those that refer to artificial landmarks. References to artificial landmarks, in turn, prevail over references to courses and distance.
In this case, however, we are not aided by references to any of these things. The only language in the deed that is alleged to refer to the western portion of the Lane merely refers to fractional portions of the "Northeast [quarter] of Southeast [quarter] and Northwest [quarter] of Southeast [quarter] of Section 26." It refers to no monuments, either artificial or natural, recites no courses or distance, and fixes no southern or northern boundaries for the Lane. Indeed, the only evidence indicating that the grantor may have intended to grant a portion of the Lane west of the W.N. Maddox lot is the vague reference to the northwest quarter of the southeast quarter.
Ordinarily, references to the quantity of acreage conveyed are construed as merely cumulative to more definite descriptions such as metes and bounds. Self v. Petty, 469 So. 2d 568 (Ala.1985); Hill v. Johnson, 214 Ala. 194, 106 So. 814 (1925). However, in order to ascertain the intent of the grantor when more definite calls are ambiguous, inconsistent, or nonexistent, a court may resort to references to the quantity of acreage expressed in the conveyance. Chapman & Dewey Lumber Co. v. St. Francis Levee Dist., 232 U.S. 186, 34 S. Ct. 297, 58 L. Ed. 564 (1914); Wisconsin Realty Co. v. Lull, 177 Wis. 53, 187 N.W. 978 (1922). Indeed, where such ambiguity or inconsistency exists, the quantity call may control the case. Trustees of the Internal Improvement Fund v. Wetstone, 222 So. 2d 10 (Fla.1969); Brown v. Ray, 314 Ill. 570, 145 N.E. 676 (1924). We believe that this is such a case.
The conveyance from W.N. Maddox to T.W. Elliott assigned a quantity of two acres, "more or less," to the entire Lane, which included the disputed portion as it was enclosed by a line that "continu[ed] west along and north of land lines dividing the S.E. qr. and N.E. qr. of S.E. qr. of Sec. 26 to a point 25 ft. north of the northwest corner of S.E. qr. of S.E. qr. of Sec. 26 [and thence ran] to a point 25 ft. West of said corner." The subsequent conveyance from Elliott to Spradley, however, assigned to the Lane only one acre, "more or less," and described it merely as "running around the North and West side of said described W.N. Maddox lot." The one-acre quantity call in the deed to Spradley, coupled with the conspicuous omission of any specific reference to that disputed portion "continuing west" of the Maddox lot, such as appeared in the deed from Maddox to Elliott, provides some evidence that the grantor intended to retain that portion.
More significantly, a one-acre call seems inconsistent with a grant of the entire Lane as it is described in the deed from Maddox to Elliott, including not only the eastern portion that ran across both the north and west sides of the W.N. Maddox lot, but also the western portion that spanned the entire distance along the land line between two *415 quarter-quarter sectionsa distance of a quarter of a mile. In fact, the length of both the western and eastern sections of the Lane, as specifically described in the deed from Maddox to Elliott, appers nearly double the length of the western portion alone.[1] We conclude, therefore, in the absence of more definite calls of conveyance, that T.W. Elliott retained the western portion of the Lane containing approximately one acre. Consequently, the disputed portion never passed into Mr. Harmon's chain of title.
This conclusion is not inconsistent with the trial judge's order quieting title in Mr. Ingram, where the order merely states that the "[p]laintiff claims title to said lands through his predecessors in title, Loyze S. Roper and Mavis I. Roper, Lucille Elliott Maddox and T.W. Elliott, and said predecessors in title first obtained title in and to said property in 1914." Although the record does not reveal the grounds on which the trial judge based his determination, we will not reverse that judgment where, as here, there is a valid basis for it. Hughes v. Allenstein, 514 So. 2d 858 (Ala. 1987); Cole v. Racetrac Petroleum, Inc., 466 So. 2d 93 (Ala.1985).
Mr. Harmon contends that, regardless of any uncertainties in the description of the Lane within the deeds forming his chain of title, he acquired ownership through adverse possession. Alabama recognizes two methods for acquiring title by adverse possession. First, title may be acquired pursuant to the provisions of Ala. Code 1975, § 6-5-200, which includes a 10-year period of limitations. Second, title may be acquired through adverse possession by prescription for a period of 20 years. Bergen v. Dixon, 527 So. 2d 1274, 1277 (Ala.1988); Tidwell v. Strickler, 457 So. 2d 365 (Ala.1984). Although the two methods differ in several respects, both require "actual, exclusive, open, notorious, and hostile possession under a claim of right" for the required period. Tidwell, 457 So. 2d at 368. The burden is upon the party claiming title by adverse possession to prove those common elements. Mardis v. Nichols, 393 So. 2d 976 (Ala.1981).
In the instant case, the trial judge expressly found that Mr. Harmon's "acts of possession were not of sufficient length of time" to secure title by adverse possession. Mr. Harmon's possessory interest in the disputed portion of the Lane began in 1959 after the conveyance from W.D. Masters.[2] Mr. Harmon concedes that he discontinued regular use of the Lane after only five years, just before the water from Lake Logan Martin rose to cover much of the area.
The frequency and nature of Mr. Harmon's acts of possession after 1964 were matters of dispute at trial. Mr. Harmon testified that he had maintained a fence along the south side of the Lane, and made occasional visits to pick blackberries, to picnic, and to remove vegetation near the water. The court heard counter testimony tending to show that the Lane had been deserted and allowed to grow over with vegetation.
In a bench trial, the judge, as trier of fact, must weigh the evidence and judge the credibility of the witnesses. Feaster v. American Liberty Ins. Co., 410 So. 2d 399 (Ala.1982). Consequently, the "ore tenus rule, which on appeal accords a presumption of correctness to a trial court's findings, is particularly strong in boundary line disputes and adverse possession cases, and the presumption is further enhanced if the trial court personally views the property in dispute." Bell v. Jackson, 530 So. 2d 42, 44 (Ala.1988). If supported by credible evidence, the "trial court's conclusions will not *416 be disturbed on appeal unless plainly erroneous or manifestly unjust." Tidwell v. Strickler, 457 So. 2d 365, 367 (Ala. 1984).
In this case, the trial judge, after two days of ore tenus proceedings and a visit to the premises, determined that "at the very best, the possession claimed by the Defendant [was] scrambled possession." The record supports a finding that Mr. Harmon's use of the Lane after his five-year period of possession failed to constitute the actual, exclusive, open, notorious, and hostile possession necessary to acquire title by adverse possession.
On appeal, Mr. Harmon argues for the first time that his period of adverse possession should be "tacked" onto that of his predecessors in title. However, he failed to raise that issue in his pleadings, during trial, or in his motion for judgment notwithstanding the verdict. The trial judge was never confronted with the argument; therefore, it is not before us for review. See Totten v. Lighting & Supply, Inc., 507 So. 2d 502 (Ala.1987); Mobile Wrecker Owners Ass'n, Inc. v. City of Mobile, 461 So. 2d 1303 (Ala.1984); Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793 (Ala.1984).
For the foregoing reasons, we find no reason to reverse the judgment of the trial court quieting title in Mr. Ingram; that judgment is hereby affirmed.
AFFIRMED.
MADDOX, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
*417
*418
[1] The location of the W.N. Maddox lot is undisputed. That lot lay in the northwest quarter of the southwest quarter of Section 25 and was bounded on the west by the land line running north and south dividing the southeast quarter of Section 26 from the southwest quarter of Section 25. See the Appendix to this opinion wherein Defendant's Exhibit Six and portions of Plaintiff's Exhibit One are reproduced.
[2] As a result of the conveyance from Mrs. Spradley in 1943, Mr. Harmon was in possession of that eastward portion of the Lane only, the portion that is not in dispute. | November 9, 1990 |
f419be7d-deb4-4e60-8173-be6cd9481bae | Casey v. Manning | 571 So. 2d 1024 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1024 (1990)
Roman CASEY, d/b/a Alagrasco
v.
Clifford MANNING.
89-34.
Supreme Court of Alabama.
October 19, 1990.
Roman Casey, pro se.
Windell C. Owens of Owens, Weaver & Associates, Monroeville, for appellee.
HOUSTON, Justice.
The plaintiff, Roman Casey, d/b/a Alagrasco, appeals from a judgment for the *1025 defendant, Clifford Manning, in an action alleging breach of contract and conversion. We affirm.
Casey and Manning entered into a written contract whereby Casey agreed to purchase sod from Manning for 15 cents per square yard. The contract stated, among other things, that Casey had to cut the sod from Manning's land, prepare the ground for future growth and cutting (i.e., fertilize and level the ground), and pay each Monday for any sod that he had cut during the preceding week. Pursuant to the contract, Casey gave Manning $300 as a "good faith" deposit. Manning later rescinded the contract when he became dissatisfied with Casey's performance; he retained Casey's deposit, considering it to be forfeited under the contract. Casey sued, alleging that Manning had denied him access to the sod without justification and, thereby, had breached the contract. Casey also alleged that Manning had denied him access to his equipment, which had been left on Manning's land pursuant to the contract, and, therefore, that Manning was liable for conversion. After a trial, in which conflicting testimony was presented, the trial judge entered a judgment for Manning, without stating his reasons for doing so.
Because this case was heard by the trial judge and was decided by him as factfinder, the ore tenus rule applies. Under the ore tenus rule, the findings of fact, where supported by the evidence, are presumed correct and the judgment based on those findings should be reversed only if it is found to be clearly erroneous, after the reviewing court has considered all of the evidence and has drawn all inferences that can logically be drawn therefrom. Where a trial judge does not make specific findings of fact concerning an issue, we will assume that he made those findings necessary to support his judgment, unless such findings would be clearly erroneous. Sundance Marina, Inc. v. Reach, 567 So. 2d 1322 (Ala.1990).
We have carefully reviewed the record in this case. As previously noted, the parties presented conflicting testimony concerning Casey's performance under the contract. Manning testified that Casey breached the contract by paying late for sod that he had cut and by not properly preparing the ground for future growth. This was disputed by Casey. Manning stated that he reduced the price per square yard of sod from 35 cents to 15 cents because Casey agreed to assume the expense of properly preparing the ground. Manning further testified that he did not deny Casey access to his equipment. This was also disputed by Casey. The trial judge apparently found that Casey had breached certain material provisions in the contract and that Manning was entitled to rescind the contract and to retain Casey's $300 deposit. The trial judge also apparently found that Manning was not guilty of converting Casey's equipment. We simply cannot say that the trial judge's decision was clearly erroneous; therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | October 19, 1990 |
ddbcb1fb-6ea8-4a19-a7bb-14d612630431 | City of Bridgeport v. Citizens Action Committee | 571 So. 2d 1089 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1089 (1990)
The CITY OF BRIDGEPORT and Ray Janney
v.
CITIZENS ACTION COMMITTEE, et al.
89-1278.
Supreme Court of Alabama.
November 16, 1990.
*1090 Gary W. Lackey, Scottsboro, for appellants.
Morris J. "Mo" Brooks, Jr., Huntsville, for appellees.
STEAGALL, Justice.
The City of Bridgeport, Alabama, and Ray Janney, its mayor,[1] appeal a preliminary injunction entered by the Circuit Court of Jackson County. The injunction was entered following a determination that the City of Bridgeport had failed to meet the requirements set out in Ala.Code 1975, §§ 28-2A-1 et seq. and 11-47-90, and therefore was not entitled to call and hold a municipal option referendum on the question whether to change its classification from "dry" to "wet." We affirm.
The federal decennial census of 1980 determined the population of the City of Bridgeport to be 2,974. Between July 7, 1987, and September 19, 1989, the City of Bridgeport conducted four separate annexations, thereby increasing its population. We note that the legality of the annexations is not an issue on appeal.
Subsequent to the four annexations, the City of Bridgeport attempted to authorize a special census, pursuant to § 11-47-90, to determine whether it had become large enough to conduct a wet-dry referendum.[2] The city appointed John Lewis, a city councilman, as enumerator to conduct the census. Lewis employed several college students to assist him with the census. The special census revealed a population of 4,231 inhabitants within the city limits. Because the City of Scottsboro, Alabama, a municipality of more than 7,000 residents within Jackson County, had previously voted "wet" in 1984, a population of only 4,000 inhabitants is needed to conduct a wet-dry referendum in the City of Bridgeport. Ala. Code 1975, § 28-2A-4.
After the census was completed, a petition was filed with the clerk of the City of Bridgeport calling for a municipal option referendum to determine the sentiment of the citizens as to whether alcoholic beverages should be legally sold, consumed, and distributed within the municipality. The petition contained 566 signatures; about 1,100 to 1,200 voters had participated in the last election held in the City of Bridgeport. A "wet-dry referendum" was scheduled to coincide with the June 5, 1990, primary election. Notice of the referendum was posted at the city hall, in the city water works bulletin, and on the bulletin board at the local United States Post Office. In addition, several newspaper articles concerning the referendum were published in two Jackson County newspapers.
On May 25, 1990, the Citizens Action Committee and Sam Cobb, Patsy Hodge Rorax, John H. Gass, Barrion G. Purdy, Jean Cobb, and Alonza L. Ross, Jr. (hereinafter collectively referred to as the "Citizens Action Committee"),[3] filed a complaint challenging the call for a municipal option election and sought an injunction to prevent the referendum. The City of Bridgeport responded to the Citizens Action Committee's complaint by filing a motion to dismiss. A hearing was scheduled for May 31, 1990.
At the hearing, the trial judge heard the testimony of various witnesses. He had before him various documents upon which both parties based their claims, and he could review for himself whether the evidence before him provided proof of compliance with the appropriate statutes. At the conclusion of the hearing, the trial judge held that the requirements of § 28-2A-1 had not been met and he entered an order *1091 enjoining the City of Bridgeport from conducting a municipal option referendum on June 5, 1990, and from calling a municipal option referendum until the requirements of § 28-2A-1 et seq. were met.
The City of Bridgeport appealed and filed a motion to stay enforcement of the preliminary injunction pending the appeal. We stayed the enforcement of the injunction as well as the implementation of the results of the June 5, 1990, wet-dry referendum, pending appellate review.
On June 5, 1990, the wet-dry referendum was held. The vote was 629 to 341 to allow the sale, distribution, and consumption of alcoholic beverages within the city limits of Bridgeport.
The City of Bridgeport contends that the language of § 28-2A-4 is ambiguous in regard to how a municipality is to determine its population and that it is the function of this Court to clarify the legislative intent pertaining to this statute. More specifically, the City of Bridgeport claims the trial court erred in holding it to the strict requirements of § 11-47-90, which governs the term "census," and further claims that a "municipality has common law authority to conduct a population count by `means properly serviceable to that end,'" citing as authority for this proposition Ryan v. City of Tuscaloosa, 155 Ala. 479, 46 So. 638 (1908). However, we find no merit to this argument.
The Citizens Action Committee simply asserts that when a municipality conducts a census to determine its population count for the purpose of a wet-dry referendum, such a census must fully comply with the requirements set forth in §§ 28-2A-1 through -4 and §§ 11-47-90 through -95.
First, we note that our review of the trial court's ruling in this matter is governed by the familiar standard of the ore tenus rule. By that rule, the decision of the trial judge, sitting without a jury, based upon disputed facts presented orally to the court, is presumed to be correct and will be affirmed on appeal as long as "`it is fairly supported by credible evidence under any reasonable aspect and is not palpably wrong or manifestly unjust.'" Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So. 2d 71, 73 (Ala.1985) (quoting Whitt v. McConnell, 360 So. 2d 336, 337 (Ala.1978). Our review of the record convinces us that the trial judge's ruling was clearly supported by the evidence.
There is no provision in §§ 28-2A-1 through -4 for how population is to be determined for purposes of an election. However, this Court has stated that § 28-2A-1 does not require that only a decennial census conducted by the United States Department of Commerce, Bureau of the Census, be used to determine the population of a municipality. Dennis v. Pendley, 518 So. 2d 688, 690 (Ala.1987). The Alabama Code recognizes two methods for determining the population of a municipality. Sections 11-47-90 and -91 authorize a municipality to conduct its own census and provide strict guidelines to ensure the integrity of the census. Section 11-47-90 provides:
Section 11-47-91 provides, in pertinent part:
The record indicates that the City of Bridgeport failed to comply with these statutory guidelines. There is no evidence of record that the appointed enumerator, John Lewis, was ever confirmed by the city council. The record also reveals that the college students that assisted Lewis with the census were employed by him and were not appointed or confirmed by the mayor. In addition, there is no evidence of record to indicate that the students took the oath required of enumerators. The individual who conducted the actual count or tally of the census papers, Inda Galovich, also was not appointed or confirmed as a census enumerator. The final results of the census were never certified under seal nor filed with the Alabama Secretary of State. Clearly, the City of Bridgeport has failed to comply with the statutes governing the census-taking process.
The Citizens Action Committee raises several other issues involving the City of Bridgeport's failure to comply with § 28-2A-1; however, because the census was improperly conducted, thereby making it unofficial and invalid, further discussion of compliance with § 28-2A-1 is unnecessary.
Therefore, having considered the record and the trial court's ruling in light of the applicable standard of review, we conclude that because the City of Bridgeport failed to comply with the guidelines provided in the census statutes, the census was unofficial and the census count of 4,231 is invalid and fails to establish the population of 4,000 necessary to conduct a municipal option referendum. Thus, the trial court was correct in ruling that the City of Bridgeport's municipal option referendum on June 5, 1990, was invalid. The judgment of the circuit court is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
[1] Because the mayor's position is consistent with that of the city, we shall refer in this opinion only to the city.
[2] Section 11-47-92 authorizes the City of Bridgeport to pay the Bureau of the Census, United States Department of Commerce, to conduct a census; however, the city did not choose this option.
[3] Cobb, Rorax, Gass, Purdy, Cobb, and Ross are members of the Citizens Action Committee. | November 16, 1990 |
34171dfd-4e15-41e6-8bf3-1b40a08076ce | Cobb v. SOUTHEAST TOYOTA DISTRIBUTORS | 569 So. 2d 395 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 395 (1990)
Larry COBB
v.
SOUTHEAST TOYOTA DISTRIBUTORS, INC.
89-1088.
Supreme Court of Alabama.
September 28, 1990.
*396 Robert J. Hayes of Roden & Hayes, Birmingham, for appellant.
Richard A. Meelheim of Vowell & Meelheim, Birmingham, for appellee.
STEAGALL, Justice.
Larry Cobb sued Ivy Corporation, doing business as Toyota of Anniston (hereinafter Ivy Corporation shall be referred to as "Toyota of Anniston"), and Southeast Toyota Distributors, Inc. ("hereinafter Southeast Toyota"), alleging breach of warranty, breach of contract, false representation, fraudulent concealment of a material fact, and civil conspiracy. Toyota of Anniston and Southeast Toyota filed separate motions for summary judgment. The trial court dismissed the breach of warranty claims against Toyota of Anniston and denied Toyota of Anniston's motion for summary judgment as to the remaining claims. In a separate order, the trial court entered summary judgment for Southeast Toyota as to all claims. That summary judgment was made final pursuant to Rule 54(b), A.R.Civ.P. Cobb appeals from that summary judgment.
On January 24, 1985, Cobb purchased a 1985 Toyota Corolla automobile from Toyota of Anniston. The automobile had incurred damage to the left front fender and the hood while being transported to Toyota of Anniston from Southeast Toyota, a regional distributor for Toyota automobiles. The damage was repaired at the direction of Toyota of Anniston, at a cost of $268.34. Southeast Toyota paid the claim for the repair submitted to it by Toyota of Anniston.
Toyota of Anniston sold the automobile to Cobb as "new" and did not inform Cobb of the damage to the automobile.
Eight months to a year after Cobb had purchased the automobile, he began to notice that the paint on the automobile was flaking. He took the automobile to Toyota of Anniston four or five times, complaining of the problem with the paint. Nearly two years after he had purchased the automobile, Cobb discussed the problem with Dave Allen, a representative of Southeast Toyota. Allen told Cobb that he was aware that there was a problem with the paint but that he did not know the cause of the problem. On February 18, 1987, Toyota of Anniston had the car repainted, at no cost to Cobb.
Cobb learned through a telephone call on February 15, 1989, from John Ford, the service manager of Toyota of Anniston, that the automobile had been damaged prior to his purchase. Cobb filed his complaint on April 3, 1989.[1]
On appeal, Cobb complains of the judgment only as it relates to the claims alleging false representation and fraudulent concealment of a material fact.
This case was filed after June 11, 1987; accordingly, the "substantial evidence rule" applies to the ruling on Southeast Toyota's motion for summary judgment. See Ala.Code 1975, § 12-21-12. Once a movant makes a prima facie showing that there is no genuine issue of material fact, the nonmovant must show that there is "substantial evidence" in support of his position in order to withstand a motion for summary judgment. Betts v. McDonald's Corp., 567 So. 2d 1252 (Ala.1990).
Section § 6-5-101, Ala.Code 1975, states:
Section § 6-5-102 states:
*397 Southeast Toyota made a prima facie showing that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. See Rule 56(c), A.R.Civ.P. There is nothing in the record to establish that Southeast Toyota was a party to, or had any knowledge of, the sale of the automobile. Cobb failed to rebut that prima facie showing. Cobb failed to present substantial evidence that Southeast Toyota made false representations or fraudulently concealed material facts in regard to Cobb's purchase of the automobile.
The trial court correctly granted Southeast Toyota's motion for summary judgment as to the misrepresentation and concealment claims. Because the other issues raised below have not been presented for review to this Court, the trial court's judgment as to the other causes of action is due to be affirmed. A.R.App.P. 28(a)(3); Mitchell v. Southern Guar. Ins. Co., 485 So. 2d 1138 (Ala.1986). We, therefore, affirm the judgment.
AFFIRMED.
MADDOX, ALMON, SHORES and ADAMS, JJ., concur.
[1] We recognize that the running of the statutory period of limitations is tolled until the plaintiff's discovery of the fact constituting fraud. Ala. Code 1975, § 6-2-3. | September 28, 1990 |
2b404296-cb80-48c1-9f10-e5517e9428df | Ex Parte WS Newell, Inc. | 569 So. 2d 725 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 725 (1990)
Ex parte W.S. NEWELL, INC.
(Re Christopher LEWIS as administrator of the estate of Teresa Lewis, deceased, et al. v. W.S. NEWELL, INC.)
89-718.
Supreme Court of Alabama.
September 28, 1990.
*726 Michael S. Jackson of Beers, Anderson, Jackson & Smith, Montgomery, for petitioner.
Larry W. Morris of Radney & Morris, Alexander City, for respondents.
ADAMS, Justice.
W.S. Newell, Inc. ("Newell"), a domestic corporation, petitions this Court for writ of mandamus to direct the Honorable James Avary, Circuit Judge of Macon County, to transfer this wrongful death action to the Circuit Court of Tallapoosa County, the county in which the plaintiff's decedent was killed. We deny the petition.
On May 1, 1989, Teresa Lewis was killed when the vehicle in which she was a passenger collided with another vehicle in the intersection of Lafayette Street and U.S. Highway 280 in Dadeville, Alabama. Teresa Lewis and her husband, Christopher, had two infant children and Mrs. Lewis was seven months pregnant with her third child at the time of her death. Approximately one month after the accident, Mr. Lewis moved from his home in Tallapoosa County and relocated near a relative in Macon County; he explained his move by saying that he could no longer "handle" living in the marital home.
On July 6, 1989, Mr. Lewis, as administrator of the estate of Teresa Lewis, filed a wrongful death action against Newell in the Circuit Court of Macon County. Newell was the construction firm that had built the portion of U.S. Highway 280 where the collision occurred. Mr. Lewis alleged that a slope abutting the north side of the highway at the intersection had been constructed in a negligent or wanton manner so as to obstruct the vision of the driver of the automobile in which his wife died.
On September 15, 1989, Newell filed its answer, in which it denied liability for the collision and also contested venue. On January 2, 1990, Newell filed a motion for change of venue from Macon County to Tallapoosa County. On February 5, 1990, Macon County Circuit Judge James Avary denied the motion. Newell filed this petition for a writ of mandamus, pursuant to Ala.R.App.P. 21(a).
This case turns upon the interaction between Ala.Code 1975, § 6-3-7, which provides for venue in personal injury actions against corporations, and § 6-5-410, the Alabama Wrongful Death Act. Section 6-3-7 provides "that all actions against a... corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence."
Newell contends, however, that in a wrongful death case, venue should be determined based upon the county of the residence of the deceased at the time of death rather than upon the place of residence of the personal representative at the time suit is filed. In essence, Newell's argument imports a separate venue provision into the Alabama Wrongful Death Act.
*727 The Act provides that "[a] personal representative may commence an action ... for the wrongful act, omission or negligence of any person, persons or corporation... provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death." Ala.Code, 1975 § 6-5-410 (emphasis added). The rule proposed by Newell would not only require us to read the two sections in pari materia, but would require us to substitute "the deceased" in § 6-5-410 for "the plaintiff" in § 6-3-7. In this case the result would limit the personal representative in his right to bring an action by the inability of the deceased now to change her residence. Failure to adopt this rule, Newell asserts, promotes forum shopping.
We have not previously written to the precise issue now before this Court; nevertheless, we do not write on a clean slate. Long ago, this Court addressed the relationship between the two sections. Therefore, a historical review of the predecessor of § 6-3-7 is essential.
Section 232 of the Constitution of 1901 provided: "[A foreign] corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state." Ala. Const. art. XII, § 232 (1901). The Constitution contained no corresponding provision dealing with venue in suits against domestic corporations. The corresponding statutory venue provision was found in Ala.Code 1896, § 4207. That section, the predecessor of § 6-3-7, simply provided: "A foreign or domestic corporation may be sued in any county in which it does business by agent."
Notwithstanding the express constitutional provision for statewide suit against foreign corporations, the legislature, by Act of March 5, 1903, Ala. Acts 1903, No. 174, amended Ala.Code 1896, § 4207. The section, as amended, provided:
Ala.Code 1907, § 6112 (emphasis added). In Alabama Great Southern R.R. v. Ambrose, 163 Ala. 220, 50 So. 1030 (1909), this Court held that § 6112 required a personal representative suing for wrongful death to bring the suit in the county "where the injury occurred," or in the county of the personal representative's residence. Ambrose, 163 Ala. at 222, 50 So. at 1030. In Ambrose, Bibb County was the county of residence of both the deceased and the personal representative, and was also the county in which the injury occurred. The defendant corporation contended that venue was proper only in Bibb County, as provided by the amendment to § 6112. In rejecting the personal representative's contention that the amendment limiting venue in personal injury actions had no application to a wrongful death action brought by the personal representative, this Court said:
Ambrose, 163 Ala. at 221-22, 50 So. at 1030 (emphasis added).
Eight years later, this Court held § 6112 to be unconstitutional as applied to foreign corporations, on the ground that the legislature had no power to limit venue in personal injury actions against a foreign corporation to the county of the injury or to the county of the plaintiff's residence when the Constitution had expressly provided for statewide venue of actions against foreign corporations. Ex parte Western Union Telegraph Co., 200 Ala. 496, 76 So. 438 (1917).
*728 Because of the holding that § 6112 was unconstitutional insofar as it related to foreign corporations, the Court deemed it necessary, over a vigorous dissent, to overrule Ambrose to the extent that the holding of that case applied to foreign corporations. The Court noted, however, that the statute was valid insofar as it applied to domestic corporations. But if Ambrose was constitutionally deficient in any respect, the deficiency has been cured by the 1988 "tort reform" amendment to the Alabama Constitution.
On March 8, 1988, Ala. Const. art. XII, § 232, was amended, the amendment being the "final phase of Alabama's tort reform effort." R. Gaines and W. Hancock, Tort Reform in Alabama: A Proponent's Perspective, 18 Cumb.L.Rev. 649, 652 (1988). Amendment 473 provides that "[a]ny foreign corporation ... may be sued only in those counties where such suit would be allowed if the said foreign corporation were a domestic corporation." As a result of the amendment, "all actions against a domestic [or foreign] corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence." Ala.Code 1975, § 6-3-7 (emphasis added). The legislature's recent "tort reform" effort has thus removed any impediment to the application of the holding in Alabama Great Southern R.R. v. Ambrose, 163 Ala. 220, 50 So. 1030 (1909).
A rule such as that suggested by Newell would not only create a conflict in Alabama venue law where none previously existed, but would produce the anomalous result of denying the plaintiff personal representative the right to sue in the county of his residencea right clearly granted to plaintiffs by the Alabama Constitution in all personal injury actions against corporations. Because we do not believe the legislature intended this anomaly, we decline to adopt such a rule. Instead, we hold, in accord with the holding in Ambrose, that § 6-3-7 simply requires that a wrongful death action, brought by the personal representative, be brought in the county where the injury occurred or in the county where the personal representative resides, provided the corporation does business there.
In so holding, we do not intend to supersede the broad discretion granted the trial judge by Ala.Code 1975, § 6-3-21.1, to transfer a case to the most convenient forum. That section provides:
(Emphasis added.)
In all cases involving the forum non conveniens doctrine, the "question of whether a case should be entertained or dismissed `depends largely upon the facts of the particular case and is in the sound discretion of the trial judge.'" Ex parte Auto Owners Ins. Co., 548 So. 2d 1029, 1032 (Ala.1989) (quoting Restatement (Second) of Conflict of Laws § 84, at 251 (1971)). In view of this plain legislative directive, we will reverse a trial judge's decision not to transfer only upon a clear showing of an abuse of discretion. See Ex parte Charter Retreat Hosp., Inc., 538 So. 2d 787, 789 (Ala.1989). Moreover, the burden of showing such an abuse is upon the party seeking the writ of mandamus. Id.; see also Isbell v. Smith, 558 So. 2d 877, 880 (Ala.1989).
In this case, a number of factors weighed in favor of keeping this case in Macon County. For example, Newell's home office and the business office of a number of proposed defense witnesses are located in Montgomery County. Montgomery County abuts Macon County and is, therefore, closer to Macon County than to Tallapoosa County. In addition, the physical characteristics of the intersection at which the accident occurred have been substantially altered since the accident. There *729 was evidence that the trial judge was concerned that prospective jurors might be so familiar with the intersection as to adversely affect the trial process. Under the circumstances, we conclude that Newell has not met its burden of showing a clear abuse of discretion on the part of the trial judge.
A writ of mandamus will issue only in a clear case. Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). Because this is not such a case, the petition is hereby denied.
WRIT DENIED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
The majority, in interpreting Alabama law, has held that a personal representative can file a wrongful death action in the county of his residence rather than in the county where he was appointed as a personal representative. I think the majority misconstrues legislative intent.
I am of the opinion that, for venue purposes, the residence of a personal representative in a wrongful death action is in the county where the deceased resided at the time of his death and where the deceased's estate is being administered and in which the administrator qualified.
I reach this conclusion because I believe that venue is determined by the provisions of Ala.Code 1975, § 6-5-410, which authorizes the personal representative to "commence an action ... provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death."
The pertinent facts are stated in the opinion of the majority, and I will not restate them, except to say that the accident that caused the death of the administrator's intestate occurred in Tallapoosa County and that at the time of her death she resided there. Furthermore, the plaintiff administrator qualified in Tallapoosa County.
In its memorandum in support of its motion to transfer the action, W.S. Newell, Inc. ("Newell"), argued the following facts: that the automobile collision occurred in Tallapoosa County, that the decedents were all residents of Tallapoosa County, and that most of the witnesses needed to be called by the parties were residents of Tallapoosa County, not Macon County.
As this Court recently stated in Ex parte Cheriogotis, 553 So. 2d 558, 559 (Ala.1989):
(Emphasis added). My opinion that Newell is correct in its argument that the wrongful death action must be filed where the "intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death," as provided in Ala.Code 1975, § 6-5-410, is based upon the following reasons.
Alabama's Wrongful Death Act reads in part:
(Emphasis added.)
This Court has not had many occasions to address the meaning of that portion of the Wrongful Death Act providing that a personal representative may commence an action if the "intestate could have commenced an action for such wrongful act, *730 omission or negligence if it had not caused death," especially in a factual setting where the venue of a wrongful death action is the question presented.
This Court in Harris v. Elliott, 277 Ala. 421, 171 So. 2d 237 (1965), did discuss briefly, albeit in obiter dicta, the venue of wrongful death actions. In that case, the personal representative filed an action alleging wrongful death against Alabama Power Company in Jefferson County, in which she sought damages for the wrongful death of her husband, which occurred in Atmore, Escambia County, Alabama. Defendant Alabama Power filed a plea in abatement in which it alleged that the defendant was a domestic corporation; that at the time of the filing of the plea, the defendant was doing business by agent in Escambia County; that the plaintiff's residence was Bonifay, Florida, and that at the time of his death, the decedent was a resident of Bonifay, Florida. Alabama Power prayed that the suit be abated, alleging that venue was improperly laid in Jefferson County, and that any wrongful death suit must be instituted in Escambia County. The Circuit Court of Jefferson County sustained the plea in abatement and transferred the case to the Circuit Court of Escambia County.
This Court, although holding that "mandamus [was] not the proper remedy because the ruling on the plea in abatement [could] ultimately be presented on appeal," nevertheless noted, in an "obiter dicta" opinion, that an Alabama wrongful death action against a domestic corporation was an action for "personal injuries" within the purview of Ala.Code 1975, § 6-3-7, which reads:
(Emphasis added).
The central question presented is, of course, where does a personal representative, suing for the wrongful death of the intestate, "reside"? The majority, in holding that the personal representative "resides" in the county of his or her own residence, rather than in the county where the estate is being administered, says that the provisions of the Wrongful Death Act have no effect upon the venue of such actions. I think the majority fails to properly follow legislative intent. I think that the venue of a wrongful death action must be based on the provision of the Wrongful Death Act that states that the personal representative may file a wrongful death action, provided the "intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death." § 6-5-410. In this case, if the intestate had lived, she would have been limited in the place where she could have filed the action, by the provisions of Ala.Code 1975, § 6-3-7. Can the administrator change the venue established by the legislature by moving to another county? I do not think so. I do not believe that the legislature intended to permit a personal representative to file a wrongful death action in any county other than one in which the "intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death." § 6-5-410.
Clearly, I do not think, as the majority holds, that the legislature, in adopting the so-called "tort reform legislation," intended to permit a personal representative to file a wrongful death action in any county where the personal representative could establish a "residence."
My research of cases construing Alabama's Wrongful Death Act, and the language *731 of that act allowing a personal representative to sue only when the decedent could have maintained an action but for his or her death, convinces me that my understanding of legislative intent is sound.
In South & North Alabama R.R. v. Sullivan, Adm'r, 59 Ala. 272 (1877), one of the first cases decided by this Court that explained the meaning of Ala.Code 1867, § 2297 (a predecessor statute to Ala.Code 1975, § 6-5-410(a)), this Court stated that the phrase "`if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death,' was intended to declare the character of act or omission which would support the action; not the person by whom it could be maintained." Id. at 281.[1]
This Court, in Breed v. Atlanta, B. & C. R.R., 241 Ala. 640, 642, 4 So. 2d 315, 316 (1941), had an opportunity to address one of the underlying purposes of the Wrongful Death Act, the prevention of homicides. Breed involved a convict who, while serving a life sentence in prison, was killed by a passing train, and in that case this Court had occasion to construe, once again, that provision of the Wrongful Death Act stating that the decedent must have been able to commence an action but for his death. This Court stated that even though the convict was "civilly dead," due to his conviction and sentence to life imprisonment, the deceased convict's personal representative could, nevertheless, maintain a wrongful death action against the railroad company, because the wrongful death statute "deals with the natural right of life which is in no way affected by a conviction and sentence to life imprisonment." This Court, explaining the nature of a wrongful death action, stated:
241 Ala. at 642-43, 4 So. 2d at 317.
As noted in both the Sullivan and Breed cases, supra, the right of action created by the Wrongful Death Act is predicated on whether the decedent could have commenced the action had the decedent lived to file it, but those two cases do not address the question presented here regarding the venue of the action.
I think that this Court, in Harris v. Elliott, albeit by obiter dicta, suggested that venue should be in the place where the decedent could have filed the action except for his death. I find support for this position in Suell v. Derricott, 161 Ala. 259, 262-63, 49 So. 895, 897 (1909), a case that is neither cited nor distinguished by the majority, where this Court stated:
(Emphasis added).
Ala.Code 1896, § 27, cited in Suell v. Derricott, supra, reads as follows:
(Emphasis added).
In the present case, in its answer filed in response to Lewis's complaint, Newell raised the defense of "improper venue," pursuant to Rule 12(b)(3), A.R.Civ.P. In its brief in support of its petition for writ of mandamus in this Court, Newell argues that the proper venue is Tallapoosa County, not Macon County. Newell further argues that had the decedent not died in the automobile collision, then, unquestionably, the proper venue for the action would have been Tallapoosa County, not Macon County, because the decedent resided in Tallapoosa County and also because the fatal automobile accident occurred in Tallapoosa County. Finally, Newell argues that if a personal representative of a decedent can "choose" the forum in which he can commence his wrongful death action against a domestic corporation merely by establishing his residence in a county in which that domestic corporation "does business," then "forum shopping" could become a common occurrence.[2]
I think that the answer to the question of which county is the proper venue for a wrongful death action can be found in the interpretation made by this Court of the wrongful death statute in effect when the Court decided Suell v. Derricott, supra, in which this Court stated that "all defenses available to the defendant, if the action had been brought by the person injured when death did not result, are available to the defendant in an action brought by the administrator of the person injured for the wrongful death." (Emphasis added.)
I find support for my position that the residence of the personal representative in a wrongful death action is in the county of the appointment of the personal representative. In Dowdy v. Franklin, 203 Va. 7, *733 121 S.E.2d 817, 93 A.L.R.2d 1194 (1961), Justice Carrico, now Chief Justice Carrico, said the following, in a case in which an infant, suing by and through his mother and next friend, filed an action for his personal injuries sustained in an automobile accident against the personal representative of an estate, in the county of the residence of the personal representative instead of in the county where the administrator qualified:
203 Va. at 11, 121 S.E.2d at 826. (Emphasis added.)
Because I believe that this Court should adopt the rule that the residence of a personal representative who files a wrongful death action is, for venue purposes, in the county where the personal representative qualifies, I disagree with the holding made in this case.
I express no opinion on the other issue presented, whether Newell was, in fact, doing business in Macon County.
I do feel, however, even assuming that the majority is correct in determining that the plaintiff is a resident of Macon County, that the provisions of the forum non conveniens statute[3] could be applicable.
STEAGALL, J., concurs.
[1] The wrongful death statute in force at the time of the decision in South & North Alabama R.R. v. Sullivan, Adm'r (Ala.Code 1867, § 2297, amended on February 5, 1872), read as follows:
"When the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action against the latter at any time within two years thereafter, if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death, and may recover such sum as the jury deem just, and the amount so recovered shall be distributed as personal property of an intestate is now distributed; and shall not be subject to the payment of the debts of the deceased; and such right of action shall survive against the personal representative of the person unlawfully causing the death aforesaid." (Emphasis added.)
The aforementioned and amended portion of § 2297 is found in Ala.Code 1876, § 2641.
[2] In order for a plaintiff to commence a "personal injury" action, which includes a "wrongful death" action, against a domestic corporation under Ala.Code 1975, § 6-3-7, he must either (1) commence the action in the county where the injury occurred or (2) commence the action in the county where the plaintiff resides if the corporation does business by agent in the county of the plaintiff's residence.
The briefs filed by the parties indicate that at the time of the fatal automobile collision Newell had a sustained history of "doing business" both in Tallapoosa County and in Macon County. The question of "where" a plaintiff resides, as it pertains to a wrongful death action commenced against a domestic corporation under Ala.Code 1975, § 6-3-7, is the focal point of the remaining portion of my opinion.
[3] Code of Ala.1975, § 6-3-21.1. | September 28, 1990 |
bf1630ba-ccb1-4db3-a613-85444f1dd8ec | Marshall v. Vreeland | 571 So. 2d 1037 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1037 (1990)
Sarah Ella MARSHALL
v.
Al VREELAND, as administrator of the estate of Eliska Marshall Cooper, deceased.
89-1219.
Supreme Court of Alabama.
October 19, 1990.
Roy F. King, Jr. of Sirote & Permutt, Birmingham, for appellant.
Jack Drake of Drake, Knowles & Pierce, Tuscaloosa, for appellees.
HORNSBY, Chief Justice.
The appellant, Sarah Marshall, challenges the subject matter jurisdiction of the Tuscaloosa Circuit Court to hear a will contest regarding the purported will of the appellant's mother, Eliska Marshall Cooper, which was offered for probate by the appellant's son, Lowery Parker, Jr., in the Tuscaloosa Probate Court. Sarah Marshall's three brothers, Jesse Marshall, Alexander Marshall, and Joseph Marshall, contested the will on the grounds that there was a lack of due execution, that the testator was of unsound mind at the time she made the will, and that the will was the result of undue influence exercised by Parker.
Upon request from the contestants, the probate court transferred the action, pursuant to Ala.Code 1975, § 43-8-198, to the circuit court. The appellant was not named as a party in that contest. At the close of all the evidence, the jury returned a verdict for the contestants on the issue of undue influence. Parker appealed from the resulting judgment, and this Court affirmed. Parker v. Marshall, 549 So. 2d 463 (Ala. 1989). On March 27, 1990, Sarah Marshall filed in the circuit court of Tuscaloosa County a motion to vacate the final judgment in Parker on the grounds that the circuit court in Parker lacked subject matter jurisdiction in that case. The circuit court denied her motion and she now appeals. We affirm.
The appellant argues that the notice of contest filed by her brothers in Parker was not a pleading within the meaning of § 43-8-198. The appellant reasons *1038 that because the contestants in Parker did not file a pleading when they filed the motion to transfer, they did not comply with the statute. Therefore, the appellant concludes that the circuit court did not have subject matter jurisdiction. We find this reasoning to be in error. Section 43-8-198 mandates that "[u]pon the demand of any party to the contest, made in writing at the time of filing the initial pleading, the probate court, or judge thereof, must enter an order transferring the contest to the circuit court of the county in which the contest is made."
The requirements of § 43-8-198 must be complied with exactly, because will contest jurisdiction is statutorily conferred upon the circuit court. Simpson v. Jones, 460 So. 2d 1282 (Ala.1984). In Kaller v. Rigdon, 480 So. 2d 536 (Ala.1985), we determined what the "pleading" requirement of the statute entailed. We stated that "the `initial pleading' for the contestant in a will contest is the filing of the contest itself in the probate court." Id. at 539 (emphasis added). The contestants in Parker properly filed a notice of contest in the probate court. Therefore, under Kaller that notice of contest served as the "initial pleading" for the contestants. This constituted compliance with the statute, thus giving the circuit court subject matter jurisdiction over the action.
AFFIRMED.
JONES, SHORES, HOUSTON and KENNEDY, JJ., concur. | October 19, 1990 |
e54a5a40-17c6-4b11-b64e-feec65b2e31e | Moman v. Gregerson's Foods, Inc. | 570 So. 2d 1215 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1215 (1990)
Sonia D. MOMAN
v.
GREGERSON'S FOODS, INC.
89-515.
Supreme Court of Alabama.
September 28, 1990.
Thomas E. Davis, Gadsden, for appellant.
Stephen X. Munger and Gregory S. Richters of Jackson, Lewis, Schnitzler & Krupman, Atlanta, Ga., and George P. Ford of Ford & Hunter, Gadsden, for appellee.
JONES, Justice.
Sonia Moman filed this civil action against Gregerson's Foods, Inc. ("Gregerson's"), and Rohit Patel, alleging invasion of privacy and intentional infliction of emotional distress based on alleged sexual harrassment by Patel. The trial court granted Gregerson's motion for summary judgment and made Gregerson's summary judgment final pursuant to Rule 54(b), A.R.Civ.P. Moman appeals. We affirm.
On February 11, 1985, Moman was hired by Gregerson's to work as a part-time cashier in its "midtown store" in Gadsden, Alabama. In April 1985, Moman was seriously injured in an automobile accident and had to take a six-week leave of absence from work. Upon returning to work, Moman discovered that she could no longer endure the long hours of standing required by her job as a cashier and, at her request, was transferred to the pharmacy of the store.
Moman was responsible for assisting the pharmacist and was given a pay increase after she had worked in the pharmacy for 60 days. In October 1986, Rohit Patel began working as a relief pharmacist and, in February 1987, he replaced the full-time pharmacist at the store. Moman testified that while Patel was relief pharmacist, and *1216 continuing after he became the full-time pharmacist, his work hours often coincided with hers. During the times they worked together, Moman alleges, Patel engaged in physical and verbal sexual harrassment of Moman. Among other things, Moman alleged that Patel made inquiries into her personal life, told dirty jokes, used very foul language, touched her in a sexual way, and told her that he would take care of her if she would "treat him right." Moman testified that she never complained to anyone other than Patel because she was afraid no one would believe her.
When Moman's hours, along with those of the other pharmacy assistants, were cut from 30 to 35 hours per week to 20 hours per week, she quit her job with Gregerson's. Moman filed for unemployment compensation benefits, but the Alabama Unemployment Compensation Agency ("the Agency") found that she had left Gregerson's "without good cause connected with work" and issued a decision disqualifying her from receiving unemployment compensation benefits.
Moman appealed the Agency's decision and, on June 9, 1987, the State Department of Industrial Relations ("the Department") held a hearing. The Department reversed the Agency's ruling, finding that Moman had "quit work due to sexual harrassment and mistreatment which included sexual advances, suggestive remarks, vulgarities, and physical abuse," and held that Moman was entitled to receive unemployment compensation benefits. Gregerson's did not appeal the Department's decision.
For Gregerson's to be liable for an employee's misconduct, the employee must have been acting within the line and scope of his employment or else Gregerson's must have ratified, confirmed, or adopted the unauthorized wrongful conduct of the employee. Joyner v. AAA Cooper Transportation, 477 So. 2d 364, 365 (Ala. 1985). Moman argues that Gregerson's ratified Patel's alleged misconduct in two ways: First, because two other female employees had complained about Patel's using foul language and telling dirty jokes and Gregerson's had done nothing about it; and second, because Gregerson's did not appeal the Department's decision that granted Moman unemployment compensation based upon the Department's finding of sexual harassment. We conclude, however, that in neither instance did Gregerson's ratify Patel's alleged misconduct.
Although the facts in this case are somewhat similar to the facts presented in Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala.1989), Busby is nevertheless distinguishable. In Busby, four female employees alleged outrageous conduct and invasion of privacy against a supervisor and against their employer. Specifically, the plaintiffs alleged that their supervisor had repeatedly subjected them to various forms of sexual harassment. Unlike the evidence here, however, the evidence in Busby tended to show that the four employees had complained of the incidents of sexual harassment, complaining both orally and in writing, on numerous occasions to the alleged harasser's supervisor. Despite the complaints, the alleged conduct continued. This Court held that the employer's failure to stop the alleged behavior, despite numerous complaints over a period of months, raised an issue of fact as to whether the employer had ratified such conduct. For a discussion of the respondeat superior theory, see, Doe v. Swift, 570 So. 2d 1209 (Ala. 1990).
In this case, although there is evidence that two other employees had complained to Stan Clark, Gregerson's controller, their complaints were limited to Patel's use of foul language toward customers and other "silly stuff." There is no evidence that anyone in Gregerson's management had reason to know of Patel's alleged misconduct toward Moman. In fact, Moman stated that, because she was afraid no one would believe her, she had complained only to Patel himself. Further, Moman testified in her deposition that she had no reason to believe that anyone in Gregerson's management knew of Patel's alleged misconduct. Without knowledge of the alleged misconduct, Gregerson's can not be found to have ratified the conduct.
*1217 Moman also argues that Gregerson's ratified Patel's alleged misconduct when it failed to appeal the Department's decision reversing the Agency's ruling and granting Moman unemployment compensation benefits based upon a finding of sexual harassment. The Department's ruling, however, in no way suggests liability on the part of Gregerson's on this claim alleging sexual harassment.
Moman can prevail on her ratification theory only if the facts invoke the "issue preclusion" rationale of the doctrine of res judicata.[1] No lengthy discussion of this doctrine is necessary to demonstrate its inapplicability to this case. Suffice it to say that the purpose and design of the statutory scheme of unemployment compensation is totally unrelated to the requisite elements of common law liability for sexual harassment in the workplace. The "for good cause connected with the workplace" criterion, as a requisite element to collect unemployment benefits does not equate with the employee's burden of proof in Moman's claim against Gregerson's for damages in the instant suit.
For the reasons stated, we find no basis for the reversal of the judgment for Gregerson's.
AFFIRMED.
HOUSTON and KENNEDY, JJ., concur.
HORNSBY, C.J., and SHORES, J., concur in the result.
[1] For a recent discussion of this doctrine and its application, see Dairyland Ins. Co. v. Jackson, 566 So. 2d 723 (Ala.1990). | September 28, 1990 |
e911563e-217e-483a-8abc-a592bfc61fbd | Schroeder v. Vellianitis | 570 So. 2d 1220 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1220 (1990)
Euna Lee SCHROEDER, as executrix of the estate of Karl F. Schroeder, deceased
v.
Sherry C. VELLIANITIS, as executrix of the estate of John Vellianitis, deceased.
89-645.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied November 9, 1990 with Dissenting Opinion Issued November 16, 1990.
*1221 Richard L. Watters of Howell, Johnston, Langford and Watters, Mobile, for appellant.
Wanda J. Cochran of Silver & Voit, Mobile, for appellee.
KENNEDY, Justice.
Euna Lee Schroeder, as executrix of the estate of Karl F. Schroeder, sued Sherry C. Vellianitis, executrix of the estate of John Vellianitis, alleging that Schroeder's estate was the holder of an unpaid $10,000 promissory note executed by John Vellianitis in return for a $10,000 loan from Mr. Schroeder to Mr. Vellianitis, and demanding payment. Schroeder appeals from a summary judgment for the defendant.
Sherry Vellianitis's summary judgment motion was based on a contention that the debt evidenced by the note had been satisfied. In support of her contention, Ms. Vellianitis offered the affidavit of Jennifer Bodiford, the bookkeeper for the late Mr. Vellianitis. In pertinent part, that affidavit read as follows (all exhibits being omitted):
*1222 The back of the $8,065.46 check had written on it the words "For deposit only" along with an eight-digit account number that the defendant alleges was that of Mr. Schroeder.
The total of the two checks was $11,500; that is the total amount, with interest, that Mr. Vellianitis had agreed to pay Mr. Schroeder.
In opposition to the summary judgment motion, the plaintiff's attorney filed the following affidavit the day prior to the hearing on the summary judgment motion:
This affidavit was the only evidence offered in opposition to the motion for summary judgment.
Under Rule 56(e), "evidence offered in response to the motion, in the form of affidavits or otherwise, must be more than a mere verification of the allegations contained in the pleadings, and must present facts that would be admissible into evidence.... Hearsay cannot create an issue of fact." Black v. Reynolds, 528 So. 2d 848, 849 (Ala.1988).
If the affidavit clearly violates Rule 56(e)'s standard ("made on personal knowledge"), the judgment of the trial court will not be reversed for the court's failure to consider it, even in the absence of an objection or motion to strike. If, on the other hand, the evidence submitted is otherwise admissible, formal defects are waived in the absence of a motion to strike or other objection. See Wright, Miller, and Kane, Federal Practice and Procedure: Civil 2d § 2738, pp. 507-09 (1983).
In examining the affidavit that was offered by counsel for the plaintiff, along with its attachments, that being the only evidence offered in opposition to the motion, we conclude that it did not comport with Rule 56(e) and was insufficient to create a material issue of fact so as to warrant a denial of the motion for summary judgment.
Accordingly, the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The affidavit found by the majority to be insufficient under the provisions of Rule 56(e), A.R.Civ.P., was made on personal knowledge, and the documents attached to the affidavit and mentioned in the affidavit, in my opinion, were sufficiently authenticated for the purpose of being considered in opposition to the motion for summary judgment. The majority, I believe, incorrectly determines that the affidavit is insufficient; therefore, I dissent.
KENNEDY, Justice.
APPLICATION OVERRULED; NO OPINION.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
On application for rehearing, Schroeder points out that the affidavit from her attorney was not, as the majority opinion states, the only evidence offered in opposition to Vellianitis's motion for summary judgment. Schroeder herself also made an affidavit based upon her personal knowledge, and that affidavit had attached to it the promissory note in issue. Attached to this opinion as appendices are Schroeder's affidavit and the note. I am still of the opinion, especially in light of Schroeder's affidavit, that the trial court erred in entering the summary judgment for Vellianitis.
*1224 | September 28, 1990 |
fcdeafa5-c828-447b-b1fe-c2f393042f97 | American Family Care, Inc. v. Irwin | 571 So. 2d 1053 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1053 (1990)
AMERICAN FAMILY CARE, INC.
v.
D. Bruce IRWIN.
AMERICAN FAMILY PHYSICIANS, P.C.
v.
D. Bruce IRWIN.
James D. BLAKE
v.
AMERICAN FAMILY CARE, INC., et al.
89-828, 89-845 and 89-945.
Supreme Court of Alabama.
October 26, 1990.
*1054 William A. Robinson and R. Carlton Smyly of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellant American Family Care, Inc.
William L. Mathis, Jr., Birmingham, for appellant American Family Physicians, P.C.
J. Michael Rediker of Ritchie and Rediker, Birmingham, for appellant James D. Blake.
Richard F. Ogle and Douglas J. Centeno of Schoel, Ogle, Benton, Gentle and Centeno, Birmingham, for appellees.
HOUSTON, Justice.
This Court's opinion of September 14, 1990, is withdrawn and the following is substituted as the opinion of this Court.
A suit in equity among stockholders for control of a small corporation best describes this case, which has at various times involved numerous parties and a plethora of complex issues.
American Family Care, Inc. ("AFC"), operates six free-standing out-patient family practice medical clinics. Dr. D. Bruce Irwin owned 47% of the capital stock of AFC; Dr. James D. Blake owned 38%; and Lankford Investment Company, Ltd. ("LICO"), owned 15% (706 shares). Irwin and Blake disagreed about a number of topics. After the board of directors (Irwin, Blake, and Frank Lankford) elected Blake as president of AFC, a position that Irwin had held since the incorporation of AFC, Irwin resigned his positions as an officer (he had been elected vice president) and director of AFC. Irwin sued AFC, demanding possession of, and amounts due as rent for, one of AFC's places of business that was owned by Irwin and Blake, as individuals, and that was leased to AFC. AFC, Blake, and LICO filed a complaint for an injunction and allied equitable relief against Irwin.
As a counterclaim, Irwin filed a stockholder's derivative action on behalf of AFC against Blake, Lankford, and AFC. LICO *1055 had purchased its 706 shares of AFC stock in 1984 for $1,000,000. While this action was pending, LICO sold this stock in AFC to American Family Partners ("the partnership") for $750,000. The partnership was composed of six physicians (including Blake) and The Physicians P.C. ("P.C."), as partners. Irwin had offered LICO $650,000 and $25,000 a year for three years for the stock. P.C. later purchased the 706 shares of AFC stock from the partnership by borrowing $700,000 and giving the partners in the partnership $50,000 in Class B preferred stock in P.C. with a preference on liquidation of the 706 shares of LICO stock.
After hearing ore tenus evidence, the trial court made detailed findings of fact. The following findings of fact are pertinent to this appeal:
Additional findings made by the trial court are as follows:
The first issue presented is whether preferred stockholders of a corporation are indispensable, necessary, or proper parties under Rule 19(a), A.R.Civ.P., to an action brought to impose a constructive trust on a major asset of the corporation of which they are preferred stockholders.
Subject to the prohibition in Alabama Constitution of 1901, § 237 ("[n]o corporation shall issue preferred stock without the consent of the owners of two-thirds of the stock of said corporation"), a corporation, when provision is made therefor in its articles of incorporation, may issue shares of preferred stock that have preference over some other class or classes *1057 of shares as to payment of dividends or preference in assets upon the voluntary or involuntary liquidation of the corporation. Ala.Code 1975, §§ 10-2A-32, -33.
Complete relief can be accorded to the parties to this action without the preferred stockholders' being made parties, so the preferred stockholders are not necessary for a just adjudication. Rule 19(a)(1).
Do the preferred stockholders claim "an interest relating to the subject of the action" and are those stockholders "so situated that the disposition of the action in [their] absence may ... impair or impede [their] ability to protect that interest or leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of [their] claimed interest" so that the preferred stockholders are necessary for a just adjudication (Rule 19(a)(2)(i) and (ii))?
Clearly, a judgment against a corporation or a constructive trust imposed upon a major asset of a corporation may have a financial impact upon the preferred stockholders of that corporation. Professor Moore discusses the kind of interest that one must have in order to be an indispensable party under the Federal Rules of Civil Procedure:
3A Moore's Federal Practice § 19.07 1[2], pp. 19-99 (1989).
This statement from Moore's was cited as the proper interpretation of Rule 19(a)(2), A.R.Civ.P., in Realty Growth Investors v. Commercial & Indus. Bank of Memphis, Tennessee, 370 So. 2d 297, 304 (Ala.Civ.App.1979), cert. denied, 370 So. 2d 306 (Ala.1979).
Stockholders do not by virtue of their stock ownership acquire a legally protected interest in the assets of the corporation of which they are stockholders. First National Bank of Birmingham v. Perfection Bedding Co., 631 F.2d 31 (5th Cir. 1980) (applying Alabama law).
The preferred stockholders did not have a security interest in the capital stock of AFC, and the mere financial interest that they did have was an indirect financial interest in the capital stock of AFC that was owned by P.C., of which they were preferred stockholders. Therefore, the preferred stockholders had no legally protected interest in the capital stock of AFC that was owned by P.C. This being the case, our standard of review of the decision of the trial court to deny the joinder of the preferred stockholders is limited to whether the trial court abused its discretion. Ross v. Luton, 456 So. 2d 249 (Ala.1984). All of the preferred stockholders knew of the pendency of this action, because they were subpoenaed to testify, and some did testify, at the trial of this case. They could have intervened to protect their financial interests, but they elected not to do so.
Likewise, the corporation of which they were preferred stockholders and one preferred stockholder (Blake), who had the same indirect financial interest that these preferred stockholders had, were parties to this action. 3A Moore's Federal Practice § 19.07 1[2], pp. 19-106, 19-108 (1989), states:
(Emphasis supplied.)
For the above reasons, we cannot hold that the trial court abused its discretion and thereby committed reversible error by failing to join these preferred stockholders of P.C.
AFC, but not Blake, argues that the trial court committed reversible error by receiving, over objection, "illegal character and reputation evidence relating to parties and witnesses."
*1058 Irwin contends that evidence of specific misconduct was not introduced to prove Blake's bad character or reputation by specific instances of misconduct. Rather, Irwin argues, and we agree, that misconduct of an officer/director of a corporation is relevant to a claim for breach of fiduciary duty and is relevant to establish a defense of unclean hands. We are convinced, as was the trial court, that Irwin introduced this evidencespecific incidents of misconductto establish his claim of breach of fiduciary duty (by showing reasons why the morale at AFC was low at the time Irwin was replaced as president) against both Blake and Lankford and to establish Irwin's defense of unclean hands against Blake. The trial court did not err in admitting this evidence.
The trial court, based upon its findings of fact, entered decretal paragraphs one through eight, of which only paragraphs one, two, and three are relevant to this appeal:
The trial court imposed a constructive trust on the 706 shares of AFC stock in favor of AFC and required AFC to pay the note owed to SouthTrust Bank by P.C., which was secured by the 706 shares of AFC stock. AFC, Blake, and P.C. challenge the trial court's power and right to do this, because they argue (1) there were no grounds for the imposition of a constructive trust; (2) the order requires AFC to repurchase its own stock, in violation of § 10-2A-22(a); and (3) there is an adequate remedy at law.
A constructive trust "bears much the same relation to an express trust that a quasi contractual obligation bears to a contract.... [A]n obligation is imposed not because of the intention of the parties but to prevent unjust enrichment." 3 Scott on Trusts § 462.1 (1939).
Equity may impress a constructive trust on property in favor of one beneficially entitled thereto when another holds title to the property by fraud, commission of wrong, abuse of a confidential relationship, or any other form of unconscionable conduct. Keeton, Law of Trusts, 210 (5th ed. 1949); 4 Pomeroy, Equity Jurisprudence, § 1053 (5th ed. 1941); Walsh on Equity, § 106 (1930). There is no evidence that P.C. obtained the 706 shares of AFC stock by any of these methods.
Equity may also impress a constructive trust on property in favor of one beneficially entitled thereto against a person, who, against the rules of equity and against good conscience, in any way either has obtained or holds and enjoys legal title to property that in justice that person ought not to hold and enjoy. 3 Scott on Trusts § 462.1 (1939); Restatement (Restitution) § 160, Comment A (1937).
Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380 (1919).
We are not factfinders. Our standard of review requires that we accept as true the facts found by the trial court, if there is substantial evidence to support the trial court's findings, either directly or through reasonable inference. The trial court found that AFC increased its payments to P.C. in order to provide P.C. with the funds necessary to pay the loan that had been incurred by P.C. in order to acquire the 706 shares of AFC stock. This finding can be supported by reasonable inferences that can be drawn from the evidence before the trial court. The trial court could reasonably have inferred from the evidence, as it did, "[t]hat at least after the purchase of the LICO stock by the Partnership failed, the purchase of the stock by [P.C.] was contrived, primarily by Blake, in order to prevent Irwin or someone who might support Irwin from acquiring the stock." (Emphasis supplied.) The court added:
(Emphasis supplied.)
Blake was the president and chief executive officer of AFC. It would have been his decision for AFC to pay the money to P.C. in order to allow P.C. to pay the indebtedness of P.C. caused by the purchase of AFC stock. Although Blake was not an officer of P.C., he owned more stock in P.C. than any other stockholder, and P.C. adopted a resolution that allowed Blake to vote the 706 shares of AFC stock owned by P.C. Blake owned 38% of the common stock of AFC. The 706 shares purchased by P.C. represented 15% of the stock in AFC. Therefore, Blake had the right to vote 53% of the stock of AFC. Blake, as president and a director of AFC, owed a duty of loyalty to the other directors and stockholders of AFC. The trial court found that Blake had breached that duty. The breach of that duty calls to mind the aphorism of Justice Cardozo in Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 548 (1928):
Irwin, in his counterclaim, which was a stockholder's derivative suit, sought the remedial device of a constructive trust to make Blake's preference of self subordinate to his loyalty to all of the stockholders of AFC. There was a ground for the imposition of a constructive trust, because P.C. held and enjoyed legal title to the 706 shares of AFC stock as a result of funds having been wrongfully diverted from AFC to P.C. to allow P.C. to pay for this stock.
AFC, Blake, and P.C. contend that the trial court was without power or jurisdiction to require AFC to pay the $700,000 to SouthTrust Bank because, they argue, such a payment violates Ala.Code 1975, § 10-2A-22(a), which provides:
"Earned surplus" is defined in § 10-2A-2(5) as:
AFC, Blake, and P.C. argue that because the trial court concluded that AFC had effectively purchased 706 shares of its own stock in the spring of 1988 when it agreed to increase its payments to P.C., at which time AFC's earned surplus was only $5,410, and because its earned surplus was only $103,344 at the time of trial, the trial court could not fashion a remedy that was violative of the Alabama Business Corporations Act and the decisions of this Court, i.e., Jebeles v. Costellos, 391 So. 2d 1024, 1026 (Ala.1980).
The earned surplus restrictions contained in § 10-2A-22(a) are designed to protect third-party creditors and minority stockholders from mismanagement by officers or directors whereby the officers or directors deplete the capital of the corporation by having it acquire its own shares. The earned surplus restrictions are not designed to protect the party that caused the repurchase of the stock. See Triumph Smokes, Inc. v. Sarlo, 482 S.W.2d 696, 698 (Tex.Civ.App.1972) (interpreting a Texas statute that limited a corporation's power to purchase its own stock to the extent of its unrestricted earned surplus). It is the general rule that "a corporation cannot itself have a stock repurchase declared illegal, nor can creditors who are not injured have a right to complain" of a violation of the statutory earned surplus restriction. LaVoy Supply Co. v. Young, 84 Idaho 120, 369 P.2d 45, 49 (1962), citing 6A Fletcher, Encyclopedia Corporations, § 2861. In light of the fact that they are the parties who developed the improper scheme, neither AFC, Blake, nor P.C. has standing to raise, and they are estopped from raising, the issue of the insufficiency of the earned surplus.
The trial court did not impose any obligation on AFC that did not otherwise already exist, for it found that the purpose of artificially increasing the compensation paid to P.C. by AFC was to provide P.C. with sufficient funds to make the note payments first to Central Bank and then to SouthTrust Bank. The proceeds of these loans were used to purchase the 706 shares of AFC stock. The trial court simply ordered AFC to continue to make those monthly payments, but without funneling the money through P.C. The trial court looked through the "form" of this transaction to the "substance" of the transaction, which was AFC's paying for stock that it did not own. Therefore, the trial court merely ordered AFC to continue to make the monthly payments, as it had been doing since May 1988. The only difference was the name of the payee. Thus, the trial court did not impose any new or different obligation upon AFC that AFC and Blake had not previously created. The trial court gave AFC the benefit of what it had been paying for.
Section 10-2A-22 does not in any way limit the remedies of an equity court to rectify a wrong if third-party creditors and minority stockholders are not harmed by the remedy. There was no evidence that third-party creditors or minority stockholders who had not participated in the improper schemes would be harmed by imposing a constructive trust and by requiring AFC to continue to repay the $700,000 obligation to SouthTrust.
Will equity specifically enforce the duty of the constructive trustee to convey the property held in constructive trust if there is an adequate remedy at law? The "Titans of Trust" disagree on this question.
Professor Bogert in Bogert, Trust and Trustees § 472 (1946), asserts:
(Emphasis supplied.)
Professor Scott asserts that the presence of an adequate remedy at law precludes the enforcement of a constructive trust:
5 Scott on Trusts § 462.3 (4th ed. 1989). (Emphasis supplied.)
Equity is a system of remedies that evolved to redress wrongs that were not recognized by or adequately righted by the common law.
After reviewing many cases and treatises, we are persuaded that the conclusion reached in "Must the Remedy at Law Be Inadequate Before a Constructive Trust Will Be Impressed?", which appeared in the Notes and Comment section of 25 St. John's L.Rev. 283, 295 (1951), succinctly summarizes the authorities and is the better rule of law:
We adopt that rule.
The asset into which the funds of AFC were improperly diverted is unique, for the ownership of that asset will determine who will control AFC. Power is unique.
Even so, a constructive trust is a remedy created to prevent unjust enrichment. The partnership bought the 706 shares of AFC stock from LICO for $750,000. P.C. bought the stock from the partnership for $750,000. The remedy fashioned by the trial court permits AFC to acquire this stock for $50,000 less than its value as established by the sale from LICO to the partnership and from the partnership to P.C., and $25,000 less than Irwin offered LICO for the stock. Individual investors, who have breached no fiduciary duties, are adversely affected; and to the extent that AFC acquired this asset for less than its market value, AFC has been unjustly enriched.
The trial court is authorized in equity proceedings to mold its judgment so as to adjust the equities of all the parties and to meet the obvious necessities of each situation. BBC Investment Co. v. Ginsberg, 280 Ala. 148, 190 So. 2d 702 (1966).
Therefore, the judgment is modified to permit the constructive trust to be dissolved upon P.C.'s satisfying the trial court, within a reasonable time to be set by the trial court, that P.C. has repaid to AFC all sums that AFC has paid directly to SouthTrust on P.C.'s note to SouthTrust; and all sums that AFC has paid to P.C. since January 1, 1987, as the result of Blake's breach of fiduciary duties owed to AFC, plus interest at the legal rate of 12% per annum from the date of such payments.
Until the trial court is satisfied that all such payments have been made, decretal paragraphs one and two, previously set out in this opinion, shall remain in full force and effect.
*1062 In a stockholder's derivative action, when the stockholder confers a substantial benefit upon the corporation, the stockholder bringing the derivative action is entitled to recover a reasonable attorney fee from the corporation. Coupounas v. Morad, 380 So. 2d 800 (Ala.1980).
We cannot hold that the trial court erred in determining that Irwin's action conferred substantial benefits upon AFC.
There is no support for AFC's argument that the attorney fee was unreasonable or unnecessary. Therefore, there is no factual support for AFC's argument that the finding by the trial court that the fee was reasonable and necessary is against the great weight of the evidence. We will not reverse on this issue.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED AS MODIFIED; APPLICATION OVERRULED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | October 26, 1990 |
74627e9a-4448-432b-96f0-5c8a5bf97d9e | MONSANTO CHEMICAL COMPANY v. Fincher | 133 So. 2d 192 | N/A | Alabama | Alabama Supreme Court | 133 So. 2d 192 (1961)
MONSANTO CHEMICAL COMPANY
v.
Joe C. FINCHER et al.
7 Div. 427.
Supreme Court of Alabama.
September 14, 1961.
*193 Knox, Jones, Woolf & Merrill, Anniston, for appellant.
Roy D. McCord and L. D. Martin, Gadsden, for appellees.
COLEMAN, Justice.
This is an appeal by respondent from a decree overruling demurrer to a bill to enjoin a nuisance alleged to be created by the operation of an insecticide plant by respondent just outside the corporate limits of the City of Anniston.
The bill alleges that complainants are each bona fide resident citizens of Calhoun County, and that respondent is a corporation operating its plant as aforesaid.
Appellant, respondent, states the questions in the case as follows:
We are of opinion that appellees, as individuals, can maintain the bill, and also that the bill states sufficient grounds for an injunction to abate the nuisance complained of.
In pertinent part, the bill of complaint recites:
The rules governing the right of an individual to abate a public nuisance have been stated as follows:
and also:
This court has sustained the right to an injunction to abate nuisances consisting of emitting obnoxious odors and gases from a tobacco drying house, Hundley v. Harrison, 123 Ala. 292, 26 So. 294; a stable, Kyser v. Hertzler, 188 Ala. 658, 65 So. 967; a sewer dump, City of Selma v. Jones, 202 Ala. 82, 79 So. 476, L.R.A.1918F, 1020; and odors and flies from a live poultry plant, Strickland v. Lambert, 268 Ala. 580, 109 So. 2d 664.
The law does not require that before a party can abate a nuisance he must show an injury which is unique to him. Strickland v. Lambert, supra.
In the case at bar, the bill alleges that the gases and odors from respondent's plant permeate the homes, offices, and business places of the complainants; that the stench is so severe that on many occasions complainants or their families have vomited, have been unable to eat, and have been made seriously sick; and that the property of complainants has greatly decreased in value. The alleged injury to the respective complainants is an injury to their respective rights to use and enjoy their individual property free from the odors and gases, and is to each complainant an injury in which no one else participates, although others may suffer a like injury to the enjoyment of their separate property. We are of opinion that the allegations of the bill establish a private nuisance or a public one from which the complainants, respectively, suffer a special injury different in kind from that suffered by the public generally; and, therefore, that the complainants, as individuals, are entitled to abate the nuisance alleged in the bill.
*195 As to the second proposition, respondent appears to insist that even if the averments of the bill show a nuisance, the bill fails to assert that the nuisance will continue, if not enjoined, or that complainants will suffer irreparable damage or such damage as will authorize the issuance of an injunction.
From the allegations of paragraph 2 of the bill quoted above, we conclude that the injury to complainants is an irreparable one; that if the operations of respondent continue, the damage to complainants will continue; and that complainants will be put to a multiplicity of suits at law to obtain judgments for future damage. The injury to complainants is in the nature of a continuing trespass and equity has jurisdiction to enjoin continuing trespasses. This court held that equity would enjoin nuisances similar to that here complained of in Hundley v. Harrison, Kyser v. Hertzler, City of Selma v. Jones, and Strickland v. Lambert, supra. We hold, therefore, that equity has jurisdiction to enjoin the nuisance complained of here.
Respondent appears to argue that the bill fails to allege that respondent's plant operation, and the alleged nuisance caused thereby, will continue. The bill does not so allege in express terms. Paragraph 3 of the bill, however, recites as follows:
As insisted by respondent, an injunction operates prospectively and is preventive of future injury. In considering this question, however, the past course of conduct, with the continuance of like conditions, offering the same inducements and opportunities for such wrongful invasion of the rights of complainants, are quite pertinent. Scofield v. Perry Creamery Company, 234 Ala. 560, 176 So. 195.
If respondent does not intend, or threaten, to continue the operation of its plant, then there would appear to be no necessity for an injunction, and if the averments of the bill fail to show such intention, then respondent's point would appear well taken. We think, however, that the bill shows that respondent intends to continue to operate the plant.
*196 The averments of paragraph 3 of the bill expressly state that respondent is operating the plant and knowingly causing the nuisance at the time of the filing of the bill. Complainants allege in paragraph 2 of the bill "* * * that the Plaintiffs and their families have been made seriously sick and their health has been seriously endangered and is continuously `being endangered by reason of the unhealthy and unwholesome nuisance created by the Defendant as aforesaid * * *." (Emphasis supplied.) We think the averments of the bill must be taken as stating that respondent, unless restrained, will continue the operation of the plant so as to cause the nuisance complained of.
We are of opinion that the bill is not subject to the grounds of demurrer argued by appellant and that the decree overruling the demurrer is without error.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur. | September 14, 1961 |
21ead262-2bbd-47af-bfd6-594ea27d5487 | Bird v. Auto Owners Ins. Co. | 572 So. 2d 394 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 394 (1990)
Sidney M. BIRD
v.
AUTO OWNERS INSURANCE COMPANY.
Sidney M. BIRD
v.
The INSURANCE STORE, INC.
89-1259, 89-1260.
Supreme Court of Alabama.
October 19, 1990.
*395 William P. Powers, Columbiano, for Sidney M. Bird.
Stephen L. Poer of Steiner, Byars, Haskell, Slaughter, Young & Johnston, Birmingham, for appellee Auto Owners Ins. Co.
James S. Lloyd and James C. Gray III of Lloyd, Bradford, Schreiber & Gray, Birmingham, for appellee The Ins. Store, Inc.
HOUSTON, Justice.
Sidney M. Bird appeals from a summary judgment in favor of Auto Owners Insurance Company ("Auto-Owners") on Bird's counterclaim against Auto Owners alleging breach of contract and bad faith refusal to pay an insurance claim and from a judgment in favor of The Insurance Store, Inc., on Bird's claim against it alleging fraud and negligent procurement of insurance. We affirm.
The following facts are undisputed: Ruby and Richard Hamm entered into an agreement with Bird to purchase Bird's house. The Hamms agreed to give Bird a promissory note for $30,000 and to assume the mortgage on the property that Bird had given to First Federal Savings and Loan Association of Chilton County ("First Federal"). Bird agreed to accept a second mortgage from the Hamms as security for the note. Bird conveyed the property to the Hamms; however, he retained possession of it. After the property was conveyed, Ms. Hamm applied to Auto Owners, through its agent, The Insurance Store, for a homeowner's insurance policy covering the house and its contents. Ms. Hamm represented to an employee of The Insurance Store that she and her husband intended to reside in the house, and she requested that they be named as the resident insureds under the policy and that First Federal and Bird be named as insured mortgagees. A policy was issued in accordance with Ms. Hamm's request. The Hamms never took possession of the property. In fact, the Hamms conveyed the property back to Bird. The house was later destroyed by fire; however, before that occurred, Bird defaulted on his obligation to First Federal, which foreclosed on its mortgage and bought the property at the foreclosure sale. No one associated with The Insurance Store or Auto Owners ever represented to Bird that he was covered under the policy. Approximately six months after the fire, Bird submitted a "Sworn Statement In Proof Of Loss" to Auto Owners, claiming proceeds under the policy issued to the Hamms for the loss of the house and its contents. The policy required that any claim made thereunder be submitted to Auto Owners within 60 days after the loss. The policy also stated that it was subject to rescission if a material misrepresentation was made in the application.
Auto Owners refunded the Hamms' premium, denied Bird's claim, and sued the Hamms, First Federal, and Bird, seeking a judgment declaring that it was not obligated *396 under the policy.[1] Bird counterclaimed, seeking damages for breach of contract and bad faith refusal to pay.[2] Bird also sued The Insurance Store, seeking damages for fraud and negligent procurement of insurance. The court entered a summary judgment for The Insurance Store; Bird appealed, but he presents no issues for review and no argument in regard to that appeal. Rule 28(a)(3) and (5); Hickox v. Stover, 551 So. 2d 259, 265 (Ala.1989); Mitchell v. Southern Guaranty Ins. Co., 485 So. 2d 1138, 1140 (Ala.1986). Because the judgment for The Insurance Store is due to be affirmed, its motion to dismiss the appeal on the ground of insufficient argument is hereby denied.
Summary judgment for Auto Owners was proper in this case if there was no genuine issue of material fact and Auto Owners was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Auto Owners to make a prima facie showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to Bird to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. DuPont v. Yellow Cab Co. of Birmingham, Inc., 565 So. 2d 190 (Ala.1990). In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to Bird and must resolve all reasonable doubts against Auto Owners. The action against Auto Owners was pending on June 11, 1987; therefore, the standard of review applicable to its judgment is the "scintilla of evidence" rule. Ala.Code 1975, § 12-21-12.
As the undisputed facts show, Ms. Hamm made material misrepresentations to an employee of The Insurance Store when she applied for the policy. Therefore, Auto Owners argues, among other things, that it was entitled to rescind the policy under the terms of the policy, as well as under Ala.Code 1975, § 27-14-7.[3] Bird's argument, as we understand it, is that Auto Owners, through the actions of The Insurance Store, waived its right to rescind the policy, and modified it, by implication, so as to provide coverage to him under the insurance policy issued to the Hamms. In support of this argument, Bird submitted his deposition, in which he testified that shortly after the policy was issued to the Hamms, the Hamms submitted a claim to The Insurance Store, apparently on his behalf, for lightning damage to his satellite dish system that was located on *397 the property; that Auto Owners issued a check payable to the Hamms; that although he received payment from the Hamms, he informed a representative of The Insurance Store that he owned, and resided in, the house and that the damaged satellite system belonged to him, not the Hamms; that he requested The Insurance Store to have the check issued in his name, but that it refused to do so; and that he personally paid the premiums in cash at The Insurance Store up until the date of the fire. Bird's position, therefore, appears to be that, by allowing Auto Owners to pay the claim to the Hamms, upon their proof of loss, for Bird's damaged satellite system with notice that Bird, not the Hamms, was residing in the house and paying the premiums, The Insurance Store, acting on behalf of Auto Owners, waived Auto Owners' contractual and statutory right to rescind the Hamms' policy on the basis of a material misrepresentation in the application, and, by implication, recognized that Bird had coverage under that policy on the house and its contents as a resident owner, not as a second mortgagee. We disagree.
Although representatives of The Insurance Store disputed Bird's testimony, we are bound by our standard of review to accept his testimony as true. Even so, Bird's testimony does not create a genuine issue for trial. After Auto Owners made a prima facie showing that material misrepresentations had been made in the application and that it was entitled to rescind the policy, and had rescinded the policy, it was incumbent upon Bird to present sufficient evidence to avoid the entry of a judgment against him. Although Bird's testimony may, as he argues, create a factual dispute as to whether The Insurance Store considered him to be covered under the policy, it does not show that The Insurance Store had any authority to waive Auto Owners' contractual and statutory right to rescind the policy, or that it had the authority to otherwise bind Auto Owners contractually.
The record fails to show that The Insurance Store had the authority to do anything more than solicit and deliver insurance policies, collect premiums, or otherwise generally service policies on Auto Owners' behalf. We note that the policy specifically states that "[i]nterest in this policy may not be transferred without our [Auto Owners'] written consent." Thus, the record indicates that The Insurance Store was merely a soliciting agent for Auto Owners. In Washington National Ins. Co. v. Strickland, 491 So. 2d 872, 874 (Ala.1985), this Court stated:
Fraud is not at issue on this appeal. The only issue is whether Bird had any rights under the Hamms' policy; and, if he did, whether there was a bad faith refusal by Auto Owners to pay his claim. The Insurance Store did not have the actual authority to affect Auto Owners' rights under the policy. Did it have the apparent authority to do so?
In Johnson v. Shenandoah Life Ins. Co., 291 Ala. 389, 394, 281 So. 2d 636, 640 (1973), this Court wrote:
Thus, it is well established that the acts of the agent cannot form the basis for a finding of apparent authority. Rather, the doctrine of apparent authority is based upon the principal's holding the agent out to a third person as having the authority under which he acts. We can find no evidence in the record of any acts on the part of Auto Owners that gave any appearance of authority on the part of The Insurance Store to transfer the policy to Bird. Other than the application, which lists Bird as the second mortgagee, there is no evidence that Auto Owners was ever informed about Bird. Under this state of the evidence, there was no basis for a finding of apparent authority on the part of The Insurance Store to bind Auto Owners in contract.
We note that Bird breached the 60-day notice provision in the policy by submitting his claim approximately 6 months after the house was destroyed by the fire, without showing any justification for the delay in submitting a claim. We also note that at the time of the fire, Bird had only a statutory right of redemption in the property and that he did not timely exercise that right. Because of our resolution of this matter, we need not determine what effect either of these facts would have had on the rights of Bird or Auto Owners under the insurance policy.
Summary judgment for Auto Owners was proper as to the breach of contract claim; consequently, it was also proper as to the bad faith claim. See Thomas v. Principal Financial Group, 566 So. 2d 735 (Ala.1990); Hilley v. Allstate Ins. Co., 562 So. 2d 184 (Ala.1990).
89-1259 AFFIRMED.
*399 89-1260 MOTION TO DISMISS DENIED; AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] A default judgment was entered against the Hamms. Auto Owners settled with First Federal and it was dismissed from the suit. The Hamms and First Federal are not parties to this appeal.
[2] Our review of the complaint indicates that Bird may have also stated a fraud claim against Auto Owners. However, the trial court treated Bird's complaint as stating only claims based on breach of contract and bad faith. Bird does not make an issue of the trial court's characterization of his complaint and he makes no argument that he is entitled to proceed with a fraud claim against Auto Owners. Accordingly, any argument that Bird could have made in this regard concerning the propriety of the judgment has been waived. Rule 28(a)(3) and (5) A.R. App.P.; see Hickox v. Stover, 551 So. 2d 259 (Ala.1989).
[3] Section 27-14-7 provides:
"(a) All statements and descriptions in any application for an insurance policy or annuity contract, or in negotiations therefor, by, or in behalf of, the insured or annuitant shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts and incorrect statements shall not prevent a recovery under the policy or contract unless either:
"(1) Fraudulent;
"(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
"(3) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract at the premium rate as applied for, or would not have issued a policy or contract in as large an amount or would not have provided coverage with respect to the hazard resulting in the loss if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.
"(b) No plea of misrepresentation or fraud in connection with the issuance of a life insurance policy or annuity contract shall be filed unless accompanied by a payment into court of all premiums paid on the policy or contract." | October 19, 1990 |
2380d705-c624-42f9-a294-922111e38cb6 | Dill v. Colonial Ins. Co. of California | 569 So. 2d 385 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 385 (1990)
Kelli Rawlins DILL and Marilyn Rawlins
v.
COLONIAL INSURANCE COMPANY OF CALIFORNIA, a Corporation.
89-569.
Supreme Court of Alabama.
September 28, 1990.
David Leon Smith III of Johnson & Cory, Birmingham, for appellants.
*386 Richard E. Smith of Rives & Peterson, Birmingham, for appellee.
ADAMS, Justice.
Colonial Insurance Company of California ("Colonial") filed an action against Kelli Rawlins Dill, Marilyn Rawlins, Brent Estes, and certain fictitious parties, seeking a judgment declaring that it was not obligated to pay any liability of Estes with regard to an action brought by Dill and Rawlins and that it was not obligated to defend him in that action. The trial court entered a summary judgment declaring that Colonial was "not obligated to defend or pay any liability incurred by Brent Estes arising out of the automobile accident involving Estes and other defendants." We reverse the judgment and remand the cause.
On January 27, 1987, Dill was a passenger in an automobile that Estes had rented from Thrifty-Rent-a-Car Company. Estes's personal car was being repaired. The two were involved in an automobile accident, which injured Dill. Colonial had issued Estes an automobile liability insurance policy that was in effect on January 27, 1987.
After the accident, Dill asked Estes on several occasions if he had automobile liability insurance to cover the accident. Estes stated in an affidavit, "I had no knowledge that I may have had applicable insurance coverage as the accident stemmed from the use of the rented automobile and did not involve my personal automobile." Estes also stated that he had never had his Colonial insurance policy in his possession and that he had never read that policy.
Estes never notified Colonial of his involvement in the accident. In late November 1988, Dill and Rawlins learned that Estes had insurance with Colonial and that it might provide coverage for the accident; two days after learning of the policy, Dill and Rawlins contacted Colonial.
Estes's policy with Colonial contained these provisions:
Colonial contends that Estes, as a matter of law, failed to comply with these provisions by failing to provide notice of the accident to Colonial within a reasonable time and that, accordingly, it was entitled to summary judgment. Dill and Rawlins contend that the trial court's judgment was improperly entered, because, they argue, there is a question of fact as to whether Estes's failure to give Colonial notice of the accident was reasonable.
To determine the reasonableness of a delay in giving notice to an insurer, the Court normally considers the length of the delay and the reasons for the delay. Big Three Motors, Inc. v. Employers Insurance Co. of Alabama, 449 So. 2d 1232, 1235 (Ala.1984); Southern Guaranty Insurance Co. v. Thomas, 334 So. 2d 879, 882 (Ala.1976). If the insured's excuse for the delay may reasonably be said to justify the length of the delay in giving notice, then the issue of the reasonableness of the delay is for a jury to determine. Reeves v. State Farm Fire & Casualty Co., 539 So. 2d 252, 255 (Ala.1989).
The fact situation in this case presents complexities that make us unwilling to hold that Estes's delay was unreasonable as a matter of law. On one hand, the length of Estes's delay in giving notice to Colonial was 22 months, and even that notice was given by Dill and Rawlins, not Estes himself. Although Estes may not have initially *387 known whether Colonial provided coverage, Dill had asked Estes whether he had coverage, which might reasonably have led Estes to inquire of Colonial whether he had coverage. On the other hand, Dill, acting reasonably, might not have understood that his policy covered rental cars, and, accordingly, might have acted reasonably in not pursuing coverage by Colonial. Additionally, the jury can most appropriately determine whether Dill's questioning of Estes concerning coverage should reasonably have led Estes to inquire of Colonial whether he had coverage. American Liberty Ins. Co. v. Soules, 288 Ala. 163, 258 So. 2d 872 (1972).
Estes also argues that he was not required to notify Colonial because he never had a copy of his policy and, therefore, cannot be charged with knowing of its provision regarding reasonable notice of the accident and the duty to cooperate. If Estes is arguing that his having no copy of his policy should exonerate him as a matter of law, then we must reject this argument. Estes's allegation that he had no policy in his possession certainly is not self-proving, and under the circumstances of this case Estes will have a heavy burden in proving that he did not receive the policy he paid for.
Assuming, however, that he received the policy, he may still try to prove to a jury that his belief that the policy did not cover rental vehicles was reasonable.
We hold that the trial court erred when it entered summary judgment for Colonial. That judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES and HOUSTON, JJ., concur. | September 28, 1990 |
9604802f-451a-48ef-9413-e7dad78b21a0 | Perkins v. Dean | 570 So. 2d 1217 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1217 (1990)
Roberta J. PERKINS and John W. Perkins
v.
Almus Larry DEAN and Northwest Alabama Regional Mental Health Center.
89-976.
Supreme Court of Alabama.
September 28, 1990.
*1218 James A. Hall of Parsons & Hall, Tuscaloosa, for appellants.
William J. Donald and William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellees.
SHORES, Justice.
The plaintiffs, Roberta J. and John W. Perkins, appeal from a summary judgment for the defendants, Almus Larry Dean and Northwest Alabama Regional Mental Health Center, on claims of outrage, malpractice, and negligent supervision. We affirm.
Viewed most favorably to the plaintiffs, the depositions supporting the summary judgment motion tended to show the following:
In January 1987, John Perkins, experiencing grief over the suicide of his daughter, began counseling sessions with Almus Larry Dean, who, at the time, was a social worker employed by the Northwest Alabama Regional Mental Health Center (hereinafter referred to as "Northwest"). John Perkins was also drinking alcohol excessively and experiencing marital difficulties, afflictions for which he also sought treatment from Dean and Northwest.
John's wife, Roberta Perkins, also began counseling sessions with Dean, for similar problems, shortly after John Perkins began his counseling. Counseling sessions for the Perkinses, both individually and as a family, continued until August 11, 1987. Dean resigned from Northwest effective October 1, 1987. In total, there were 30 counseling sessions between Dean and the Perkinses.
During a counseling session in July 1987, Roberta Perkins told Dean that she wanted to have an affair with him. Dean responded by explaining to her the concept of transference,[1] but also requested that Perkins "check back with me [Dean] later and we'll see how it is between my wife and [me] and you and your husband." (Roberta Perkins's deposition, p. 27.) This was the only mention of an affair during the time that Dean was counseling Roberta Perkins.
Following his resignation from Northwest, Dean continued contact with the Perkinses socially, based on the common interests of Dean, his wife, and the Perkinses in Alcoholics Anonymous and Alanon. The Perkinses visited in the home of Dean and his wife, with some visits culminating in all four persons' spending time together in a hot tub.
In January 1988, Roberta Perkins and Dean began having an affair. That affair ended in September 1988.
Assuming, without deciding, that a claim for social worker malpractice would be recognized in this State, the facts of this case do not support such a claim, and if they did, the statute of limitations would bar the claim. See generally, Doe v. Hall, No. 86-HM-5167 (N.D.Ala., Feb. 12, 1987), Doe v. Swift, 570 So. 2d 1209 (Ala.1990), and *1219 Handley v. Richards, 518 So. 2d 682 (Ala. 1982).
In the two cases cited by the appellants in support of their malpractice claims, Horak v. Biris, 130 Ill.App.3d 140, 85 Ill.Dec. 599, 474 N.E.2d 13 (1985), and Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980), the sexual intercourse involved occurred during the course of an ongoing, professional counselor-patient relationship. In this case, the sexual encounter took place after the professional relationship between Roberta Perkins and Dean had ended and after Dean had resigned from Northwest. The Perkinses argue that when the actual intercourse took place is not relevant, for the gravamen of their petition is that Dean and Northwest did not properly treat them and that as a result they were injured. They cite Zipkin v. Freeman, 436 S.W.2d 753 (Mo.1968), in support of this argument. In that case, the acts of the defendant were all committed under the premise of therapy and counseling while the plaintiff was still under the care of the defendant. The sexual relations between Dean and Roberta Perkins were not commenced in the furtherance of any therapy or treatment and did not occur within the shadow of any professional relationship. The sexual encounters occurred in a purely social context.
Accordingly, Northwest is not liable for Dean's actions under the doctrine of respondeat superior. When Dean had sex with Roberta Perkins, he was not employed by or associated with Northwest in such a way that a master/servant relationship existed (Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1939), as cited in Scott v. Great Atlantic & Pacific Tea Co., 338 F.2d 661, 662 (5th Cir.1964) (applying Alabama law)), nor did the intercourse take place within the line or scope of Dean's employment with Northwest. Beasley v. Schuessler, 519 So. 2d 551, 553 (Ala.Civ.App.1987).
An action based on the tort of outrage requires proof that: (1) the actor intended to inflict emotional distress, or knew or should have known that emotional distress was likely to result from his conduct; (2) the conduct was extreme and outrageous; and (3) the distress was severe. Harris v. McDavid, 553 So. 2d 567, 569, citing U.S.A. Oil, Inc. v. Smith, 415 So. 2d 1098, 1100 (Ala.Civ.App.1982), cert. denied, 415 So. 2d 1102 (Ala.1982). With respect to the conduct, this Court has stated that the conduct must be "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (1981) (citing Restatement (Second) of Torts, § 46, comment d (1948)). While it may be said that society frowns upon extra-marital relationships, to claim that the conduct and actions in this case rise to the level of outrage would be an attempt to transform the tort of outrage into a "panacea for all of life's ills," U.S.A. Oil, Inc., 415 So. 2d at 1101, something that the cause of action was not recognized for. This Court has held that an employer's invitation to an employee to have an affair did not constitute outrageous conduct, McIsaac v. WZEW-FM Corp., 495 So. 2d 649 (Ala.1986), and that a man's enticement of a woman to move from one locale to another with promises of marriage, causing the woman to become pregnant, convincing her to have an abortion, and then informing her of his intent to end their business and personal relationships did not rise to the level of outrageous conduct. Harris v. McDavid, 553 So. 2d 567 (Ala.1989). Consensual sexual relations between adults within the context of an extra-marital affair, absent any professional relationship or duty, and without a malicious intent to inflict harm on another, may well be morally or socially repugnant, but they do not constitute outrageous conduct within the contemplation of the case law recognizing the tort of outrage.
In their negligent supervision claim against Northwest, the Perkinses must show or demonstrate that Northwest had notice or knowledge (actual or presumed) of Dean's alleged incompetency for Northwest *1220 to be held responsible; demonstrating liability on Northwest's part requires affirmative proof that Dean's alleged incompetence was actually known to Northwest or was discoverable by Northwest if it had exercised care and proper diligence. Lane v. Central Bank of Alabama, N.A., 425 So. 2d 1098 (Ala.1983), quoting Thompson v. Harvard, 285 Ala. 718, 235 So. 2d 853 (1970). The trial court must determine whether a duty existed, and, if so, the extent of that duty. Rose v. Miller & Co., 432 So. 2d 1237, 1238 (Ala.1983). The undisputed facts establish that there was no duty owed by Northwest to the Perkinses.
In their reply brief, the Perkinses finally argue for the first time that it was error for the trial court to enter summary judgment because, they argue, discovery matters essential to them as non-moving parties were pending. This argument is waived, and will not be considered by this Court. Kennesaw Life & Accident Insurance Co. v. Old National Insurance Co., 291 Ala. 752, 287 So. 2d 869 (1973).
We affirm the summary judgment for Dean and Northwest.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] "Transference" is defined as the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient's past. Stedman's Medical Dictionary 1473 (5th ed. 1982). | September 28, 1990 |
ee3593cf-1618-4a5a-a4d5-626281828203 | Ex Parte Brooks | 572 So. 2d 409 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 409 (1990)
Ex parte S. Robert BROOKS III.
(Re S. Robert BROOKS III v. ALABAMA STATE BAR.)
89-1354, 89-1379 and 89-1380.
Supreme Court of Alabama.
November 2, 1990.
S. Robert Brooks III, Mobile, pro se.
Alex W. Jackson, Asst. Gen. Counsel, Alabama State Bar, Montgomery, for respondent.
PER CURIAM.
On April 23, 1987, the Alabama State Bar ("the Bar"), pursuant to Rule 3(c), Ala.R. Disc.Enf., temporarily suspended the petitioner, S. Robert Brooks, III from the practice of law for the alleged conversion of his clients' money. Brooks was convicted of theft, in the Mobile Circuit Court; on appeal the Court of Criminal Appeals affirmed, but on certiorari review this Court reversed the conviction and remanded the *410 case. Brooks v. State, 562 So. 2d 601 (Ala. Crim.App.1989), rev'd, 562 So. 2d 604 (Ala. 1990). As a result, there has not yet been a final disposition of the criminal charges against Brooks.
On January 5, 1990, Brooks petitioned the Bar for a dissolution of the temporary suspension. On January 10, 1990, after a hearing, the Bar denied his petition and continued the temporary suspension in force until all pending disciplinary matters were concluded.[1] Brooks gave oral notice to the Disciplinary Board on January 10, 1990, of an intent to appeal but filed no written notice with the Bar. He did file the required notice of appeal with this Court. See Rule 8(d), Ala.R.Disc.Enf. The first writing that the Bar received in reference to Brooks's appeal was a document entitled "Notice of Filing of Transcript," on March 21, 1990. However, although Brooks had had a transcript prepared and had filed a copy of it in this Court, he did not furnish the Bar with a copy of the transcript, nor did he request from the Bar a record of the proceedings.
On March 20, 1990, Brooks filed with the Bar another "Petition for Dissolution," seeking another hearing on the April 23, 1987, order. On March 27, 1990, the General Counsel of the Bar filed a motion to quash that petition. The Bar granted the motion to quash on March 28, 1990. Brooks has now filed three petitions for writs of mandamus with this Court. First, Brooks petitions this Court to issue a writ ordering the Bar to complete the record on appeal regarding its January 10, 1990, order. Second, Brooks asks this Court to issue a writ ordering the Bar to conduct a Rule 3(c) hearing in response to his March 20, 1990, petition. Third, Brooks asks this Court to issue a writ ordering the Bar and its General Counsel to "maintain the burden of proof in disciplinary hearings" conducted under Rule 3(c). For purposes of writing only one opinion, we have consolidated all three petitions for writ of mandamus.
Brooks's first petition asks this Court to order the Bar to complete the record on appeal concerning his appeal of the January 10, 1990, hearing. The Bar and Brooks agree that Brooks gave the Bar oral notice of his intent to appeal at the January 10, 1990, disciplinary hearing. Brooks did not provide the Secretary of the Alabama State Bar with a transcript of the January 10, 1990, Disciplinary Board hearing. The only written notice that the Bar received indicating Brooks's intent to appeal was a document entitled "Notice of Filing of Transcript" although, in fact, no transcript was filed with the Bar.
Specifically, Brooks is asking this Court to order the Bar to acquire from the clerk of this Court the improperly filed transcript of the January 10, 1990, hearing and to complete the record on appeal. Brooks argues that he has done all he is required to do under Rule 8(d), by sending the transcript to this Court. We find this argument wholly without merit. Mandamus is an 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) lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. C & G Development v. Planning Comm'n of the City of Homewood, 548 So. 2d 451 (Ala.1989).
Under Rule 8(d), the appellant has the burden of perfecting an appeal from a disciplinary hearing. The appellant first must file a notice of appeal with the Clerk of this Court within 42 days after the Disciplinary Board's decision. Brooks filed a notice of appeal within that time. Within seven days after filing the notice of appeal, the appellant must order from the court reporter a transcript of the testimony given at the disciplinary hearing. Brooks ordered the transcript from the court reporter. Seven days after the Secretary of the Bar receives the transcript from the appellant, the appellant must make arrangements with the Secretary of the Bar to *411 cover the cost of making photocopies of the record for the Supreme Court and the General Counsel.
In this case, Brooks has yet to furnish the Secretary of the Bar a copy of the transcript of the January 10, 1990, hearing. Therefore, under Rule 8(d), the Bar cannot complete the record. Once Brooks complies with Rule 8(d), by furnishing the Secretary of the Bar with the transcript, the Bar must complete the record on appeal within seven days. Under Rule 8(d), it is Brooks's duty to provide the transcript to the Secretary of the Bar, not the Bar's duty to acquire the transcript from wherever Brooks may deposit it. Brooks's failure to provide the Bar a copy of the transcript is a self-induced impediment to the perfection of his appeal. Therefore, we deny Brooks's petition for a writ of mandamus ordering the Bar to complete the record on appeal.
Brooks's second petition for writ of mandamus asks this Court to issue a writ ordering the Bar to hold a Rule 3(c) hearing regarding his March 20, 1990, "petition for dissolution" of the April 23, 1987, temporary suspension order. The General Counsel moved to quash that petition. The General Counsel's motion to quash was based partly on the argument that Brooks had chosen a remedy by appealing to this Court on a substantially similar petition.
Brooks was given a full Rule 3(c) hearing upon filing his January 5, 1990, petition for dissolution of the April 23, 1987, temporary suspension. Mandamus is not a substitute for appeal and will not lie where there is a remedy by appeal. Ex parte Hatton, 547 So. 2d 450 (Ala.1989); Echols v. Housing Authority of Auburn, 377 So. 2d 952 (Ala.1979). Under Rule 3(c), if Brooks wished to challenge the Bar's order of January 10, 1990, he should have perfected the appeal he began. Therefore, Brooks's petition directed to this issue is denied.
Brooks's third petition for a writ of mandamus asks this Court to order the Bar and its General Counsel to "maintain the burden of proof in disciplinary hearings." Brooks argues that the Bar, in its use of Rule 3(c), violated his right to due process by requiring him to carry the burden of proof. To correct this alleged abuse, Brooks asks this Court to declare Rule 3(c) "unconstitutional or ... prescribe very limited circumstances under which it may be used."
Mandamus is not a substitute for appeal and is not available when there is a remedy by appeal. Ex parte Hatton, supra; Echols, supra. In this case, the proper method for Brooks to test the constitutionality of Rule 3(c) would have been through an appeal from the January 10, 1990, ruling, pursuant to Rule 8(d). We note that as of this date Brooks's appeal from the January 10, 1990, ruling is pending in this Court. Therefore, his petition directed to this issue is denied.
WRITS DENIED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The record in this Court does not indicate what disciplinary proceedings may be pending. | November 2, 1990 |
4fd6bf5c-81b0-43de-9706-837dba2377a5 | Ex Parte Davis | 569 So. 2d 738 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 738 (1990)
Ex parte Timothy Charles DAVIS.
(Re Timothy Charles Davis v. State of Alabama.)
86-359.
Supreme Court of Alabama.
September 28, 1990.
*739 Bruce M. Green and James C. Pino of Mitchell, Green, Pino & Medaris, Alabaster, for petitioner.
Don Siegelman, Atty. Gen., and Rivard Melson and William D. Little, Asst. Attys. Gen., for respondent.
KENNEDY, Justice.
In his brief on application for rehearing,[1] Davis argues, for the first time, that during the sentencing phase of the trial the trial judge considered a presentencing investigation report that had not been disclosed to Davis or his counsel. Davis filed with this Court a motion to supplement the record, to which was attached a copy of a presentencing investigation report on Davis. On February 8, 1990, we ordered the trial court to conduct an evidentiary hearing to determine whether the trial judge had considered the report in sentencing Davis and whether it had been disclosed to defense counsel prior to the sentencing hearing. Both sides agreed, and the trial court found in its order, that the trial judge had considered the report in sentencing Davis. The trial court also found that the report had been disclosed to defense counsel prior to July 28, 1980, the date on which Davis was sentenced to death. In his supplemental brief on application for rehearing, Davis contends that defense counsel was not provided a copy of the pre-sentencing report before sentencing and that the report contained prejudicial and improper information.
The following is a summary of the evidence adduced at the evidentiary hearing and a relevant portion of the trial record:
After the jury returned its verdict on June 13, 1980, the judge who sat at trial and at the sentencing hearing requested that a presentencing report be made. The *740 presentencing report was completed on June 23, 1980. A sentencing hearing was held on July 14, 1980, and the trial court imposed the death sentence on July 28, 1980.
The trial judge referred to the presentencing report at the sentencing hearing on July 14, 1980:
The trial judge testified that he received the presentencing report in open court prior to the date on which Davis was sentenced and that a copy of the presentencing report was handed to defense counsel at the same time. He remembered this, he said, because one of the defense attorneys said the presentencing report was not different from the youthful offender presentencing report, which is a separate report and is contained in the record.
Lee Sims, defense co-counsel at trial, testified that he recalled seeing a youthful offender presentencing report but could not recall whether he saw a presentencing report. His records were destroyed after the trial; therefore, the trial court could not determine whether he had received a copy of the presentencing report.
Stanley Sikes, defense co-counsel, testified that he never saw the presentencing report, and that he did not recall seeing a probation officer or hearing the trial judge refer to the presentencing report. He said his file does not contain a copy of the presentencing report.
George McDonald, the probation officer who compiled the presentencing report, said he thought he handed the trial judge the report just before the sentencing hearing on July 14, 1980. He said he could not recall whether he did so immediately preceding the hearing or 30 minutes before in the clerk's office. He said he thought he gave the defense attorney a copy of the report just before the hearing began, and he said he remembers giving the district attorney a copy of the report. He testified that as of 1978 or 1979 it became mandatory to give all parties a copy of the presentencing report.
Robert Williams, the prosecuting attorney, testified that the probation officer gave him a copy of the presentencing report just before the first sentencing hearing on July 14, 1980. He said he did not recall whether defense counsel was given one but remembers that at the sentencing hearing on July 14, 1980, there was some discussion between the prosecution and the defense attorneys, possibly concerning the similarity between the presentencing report and the youthful offender report.
Gerald Parker, the circuit court clerk in 1980 and in 1990, testified that the presentencing report is not in the clerk's record of the trial, although the clerk did not customarily file a copy of the presentencing report in the record unless the trial court so requested. He said that the trial judge asked the attorneys whether they were satisfied with the presentencing report and that, in a discussion with the prosecuting attorneys and the probation officer, one of the defense attorneys said that the presentencing report was similar to the youthful offender report.
The finding of the trial court will not be disturbed on appeal unless it appears from the record that it was contrary to the great weight of the evidence or is manifestly wrong. Bush v. State, 523 So. 2d 538 (Ala. Crim.App.1988); Magwood v. State, 494 So. 2d 124 (Ala.Crim.App.1985), aff'd, 494 So. 2d 154 (Ala.1986); Marschke v. State, 450 So. 2d 177 (Ala.Crim.App.1984). See Thompson v. State, 503 So. 2d 871 (Ala. Crim.App.1986), aff'd, 503 So. 2d 887 (Ala. 1987), cert. denied, 484 U.S. 872, 108 S. Ct. 204, 98 L. Ed. 2d 155 (1987) (receipt by defense counsel of presentencing report at least one day before the sentencing hearing constitutes sufficient disclosure of report).
*741 Based on a thorough review of the record of the evidentiary hearing, we find that the trial court's decision was not against the great weight of the evidence or manifestly unjust. It is indisputable that the trial judge stated at the sentencing hearing on July 14, 1980, that he had asked for, received, and would consider the presentencing report in sentencing Davis. The testimony at the hearing indicates that defense counsel did receive a copy of the presentencing report. The only conflicting testimony is that of defense attorney, Stanley Sikes, who testified that he did not recall seeing a copy of the presentencing report, and that his file did not contain a copy of the report. Lee Sims, the other defense attorney, said he had no recollection of the events of July 1980. Sikes's testimony is outweighed by the testimony of the other witnesses, whose testimony corroborates that of each other. Therefore, the finding of the trial court shall not be disturbed.
Next, Davis argues that the presentencing report was inadmissible at the sentencing hearing. He cites a number of reasons that the trial court should not have considered the presentencing report. Among those reasons are that the report contained hearsay, that the summary of the crime was prejudicial, that a reference to the community affection for the victim was prejudicial, and that admissions by the defendant were obtained without waivers of his rights under the fifth and sixth amendments.
It is clear to this Court that the use of the presentencing report is consistent with Ala.Code 1975, § 13A-5-45(d), Alabama's capital murder statute, which states:
The entire report itself is an out-of-court statement and is entirely hearsay; however, it is admissible under Ala.Code 1975, § 13A-5-47. Thompson v. State, supra. The trial court is not obligated to do more than provide a fair opportunity for rebuttal; where the record indicates that the defendant was given sufficient opportunity to rebut any hearsay statements made at the sentencing hearing, there is no error. Johnson v. State, 399 So. 2d 859 (Ala.Crim. App.1979), aff'd in part and rev'd on other grounds, 399 So. 2d 873 (Ala.1981).
Davis argues that the summary of the offense contained in the presentencing report was prejudicial because, he says, it gave the erroneous impression that the state had conclusively proven the facts alleged in the indictment. This argument is without merit. Davis's culpability was established by the jury's verdict of guilt. See Thompson v. State, supra, at 871. Davis was not prejudiced by this information.
It is equally clear to this Court that the inclusion of a statement in the presentencing report that the victim was "well known and loved in her community" was not error. In Ex parte Martin, 548 So. 2d 496 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 419, 107 L. Ed. 2d 383 (1989), this Court held that the inclusion of a statement in a presentencing report concerning the impact of the victim's death on her family was not error. The court emphasized that, in that case, the presentencing report was not presented to the jury, but to the trial court. Compare Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987) (introduction to jury at sentencing phase of capital murder trial of victim-impact statement violates eighth amendment). In this case, the information contained in the presentencing report was not presented to the jury but to the trial judge. Thus, Davis was not prejudiced by its inclusion.
Davis also argues that the presentencing report contains admissions of, among other things, drug use that were not preceded by valid waivers of his fifth and sixth amendment rights. This argument *742 has no merit. This information was taken from a youthful offender presentencing report that had been compiled 11 months before trial. Although he was afforded two opportunities to deny the truth of the admissions, at no time during the proceedings did Davis do so. A sufficient challenge could have provoked a fact hearing; however, a sufficient challenge would require that Davis state on the record an opposition to the inclusion of information in the presentencing report. Prejean v. Blackburn, 743 F.2d 1091 (5th Cir.1984), modified by Prejean v. Maggio, 765 F.2d 482 (5th Cir.1985), cert. denied, Prejean v. Blackburn, ___ U.S. ___, 109 S. Ct. 3259, 106 L. Ed. 2d 604 (1989). See Thompson v. State, supra. In fact, we note that Davis did not deny or explain any of the information contained in the presentencing report.
Based on the foregoing, we find that the trial court did not err in considering the information contained in the presentencing report.
We have carefully considered the remaining issues raised by Davis in his original brief on rehearing and we find that they were correctly decided by this Court in its opinion of September 15, 1989. See Ex Parte Davis, 554 So. 2d 1111 (Ala.1989). Therefore, we will not address those issues here. In addition to considering the issues raised by Davis, we have carefully reviewed the record of the evidentiary hearing for plain error and have found none.
Accordingly, this Court's opinion in Ex parte Davis, supra, is extended and the application for rehearing is overruled.
OPINION EXTENDED; APPLICATION OVERRULED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] See this Court's opinion in Ex parte Davis, 554 So. 2d 1111 (Ala.1989). | September 28, 1990 |
af793624-db3c-48c8-97a1-be2e4e590336 | Williams v. CITIZENS NAT. BANK OF SHAWMUT | 570 So. 2d 635 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 635 (1990)
Jerry R. WILLIAMS
v.
CITIZENS NATIONAL BANK OF SHAWMUT and John W. Johnson, Jr.
88-1393.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied November 16, 1990.
Jerry R. Williams, pro se.
*636 William A. Cleveland of Haygood, Cleveland & Pierce, Auburn, for appellee Citizens Nat. Bank of Shawmut.
Henry C. Chappell, Jr. of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee John W. Johnson, Jr.
KENNEDY, Justice.
The plaintiff appeals from a summary judgment for the defendants, John W. Johnson and Citizens National Bank of Shawmut. We affirm.
In 1983, Dollie Mae Finch died. Her will named the plaintiff, Jerry R. Williams, as executor of her estate. After specific bequests to other family members, the will left to Williams one-half of the remainder of the estate. The Finch estate consisted primarily of 2 large tracts of land, one in Lee County containing approximately 439 acres and one in Chambers County containing approximately 840 acres.
Dollie Mae Finch and Williams had borrowed money from the Production Credit Association of Opelika; they had executed a promissory note and Dollie Mae Finch had executed a mortgage on the Lee County property to secure the payment of that note. It is clear that this debt secured by the Lee County property was a personal debt of both Williams and Dollie Mae Finch. On February 8, 1984, Production Credit Association assigned the promissory note and mortgage to CNB in exchange for payment by CNB of the remaining indebtedness, in the amount of $171,279.74.
As executor of the Finch estate, Williams was initially represented by attorney W.O. Walton, who had prepared Ms. Finch's will. In 1984, Mr. Walton's services were terminated, and the defendant Johnson was hired to represent the Finch estate and Williams, as the executor of the estate. In that capacity, Johnson assisted Williams in a $26,100 loan transaction with CNB. The $26,100 loan transaction is the central dispute in the case.
On or about February 8, 1984, CNB had lent Williams $26,100.00, the loan being evidenced by a promissory note signed by Williams both in his capacity as executor of the Finch estate and in his individual capacity. Williams's wife, Lou O. Williams, also signed the promissory note. To secure payment of the note, Williams, individually and in his capacity as executor, executed a mortgage on the Lee County and Chambers County properties. Williams's wife also executed the mortgage on the two properties. The loan proceeds were applied to payment of obligations of the Finch estate, including certain reimbursements to Williams for out-of-pocket expenses paid on behalf of the estate.
The debts owed to CNB by Williams, individually and as executor, were not paid. In December 1985, Johnson resigned from representation of the Finch estate and from representation of Williams as executor of the estate. Johnson had represented CNB on occasion and wanted to avoid any potential conflict of interest when CNB took legal action against Williams for not paying the debt. Johnson also owned stock in CNB.
On February 6, 1987, CNB foreclosed on the mortgage given by Dollie Mae Finch to Production Credit Association on the Lee County property, which had been assigned to CNB. CNB purchased the property at the foreclosure sale for $228,980, which sum was credited to the indebtedness of the Finch estate and Williams.
On April 6, 1988, the circuit court ordered the Chambers County property sold to satisfy bequests to specific legatees under the Finch will. That property was sold at public auction.
Williams sued CNB and Johnson. Williams makes four claims against CNB: (1) that the $26,100 loan was illegal and should be declared null and void, (2) that CNB was unjustly enriched, (3) that CNB had committed fraud, and (4) that CNB had engaged in a conspiracy. Williams contends that Johnson's actions as attorney for the Finch estate and Williams, in his capacity as executor, resulted in (1) a breach of fiduciary duty, (2) negligence, (3) fraud, and (4) conspiracy. On October 14, 1988, the Circuit Court of Chambers County *637 entered a summary judgment in favor of CNB. The judge later entered a Rule 54(b), A.R.Civ.P., certification of finality. On June 19, 1989, the Circuit Court of Chambers County entered a summary judgment in favor of Johnson.
In reviewing a summary judgment, a court must view the evidence in a light most favorable to the non-moving party. Tripp v. Humana, Inc., 474 So. 2d 88, 90 (Ala.1985). The party opposing the summary judgment must establish the existence of a genuine issue of material fact and the moving party must be entitled to a judgment as a matter of law. Id. Williams has not met this burden in the instant case.
Williams argues that CNB cannot enforce the $26,100 loan it made to Williams because the loan was illegal. CNB concedes that Williams had no authority as executor to mortgage the real property of the estate. However, Williams also signed the mortgage and promissory note in his individual capacity. Consequently, even if the estate is not liable, Williams remains individually liable for the amount of the loan. His absence of authority as executor has no effect on his liability for the loan in his capacity as an individual. The circuit court correctly concluded that Williams's lack of authority as executor of the estate to mortgage the property did not invalidate the indebtedness as to Williams in his individual capacity.
Williams also alleges that the mortgage from Dollie Mae Finch to Production Credit Association, had been satisfied before the foreclosure sale. Williams contends that the foreclosure sale, therefore, should not have been held. However, evidence offered by CNB plainly showed that the mortgage had not been satisfied before the sale and Williams produced no evidence to contradict CNB's evidence. The court was left with no alternative but to consider CNB's evidence as uncontroverted. Whatley v. Cardinal Pest Control, 388 So. 2d 529 (Ala.1980). The court properly granted the summary judgment, as there was no evidence that the debt had been satisfied.
Williams claims that CNB's interest rate of 15% per annum on the promissory note for the $26,100 loan unjustly enriched CNB. The prime interest rate on the date the note was signed was 13%. The court correctly concluded there was no triable issue on the claim of unjust enrichment, as there was no evidence presented to indicate unjust enrichment.
Williams claims that CNB had an obligation to tell him that, as executor, he had no authority to mortgage the estate's property. Williams contends that in allegedly failing to so notify Williams, CNB committed fraud. In order to establish a fraud claim, a plaintiff must produce evidence of a present intent on the part of the defendant to deceive the plaintiff by suppression or active concealment of a material fact. Ala.Code 1975, § 6-5-102. Further, the suppression of the material fact must have led the plaintiff to reasonably rely on the fact to his detriment. Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala.1987). As the circuit court correctly concluded, there is not a scintilla of evidence that CNB, at the time the promissory note was executed, had a present intent to deceive Williams or that it suppressed any material fact. On the contrary, there was evidence in other documents presented to the court which indicated Williams knew he did not have the authority as executor of the Finch estate to mortgage the property. Also, Williams continues to be liable on the $26,100 loan because he signed the loan documents as an individual. Williams has not proven fraud with respect to signing the note as an individual.
Williams produced no evidence regarding a conspiracy between Johnson and CNB. Although Johnson had represented CNB on occasion and owned stock in CNB, there was no evidence presented of a conspiracy.
We conclude that the circuit court properly entered the summary judgment in favor of CNB as to all claims made by Williams.
Williams claims that Johnson breached his fiduciary duty as legal representative of the estate by placing his own interests and those of CNB ahead of Williams's interests. Williams alleges that Johnson's allowing Williams to enter into the loan agreement as executor constituted a breach of that duty. However, the evidence indicates that Williams was aware that, as executor, he lacked authority to mortgage the property. On January 26, 1984, before the loan transaction with CNB on February 8, 1984, Williams applied to the Internal Revenue Service for an extension of time in which to pay estate taxes. The application required Williams, as executor, to explain why an extension was needed. He stated in the application that he did not have the authority, as executor, to mortgage the real property of the estate. Thus, Williams had knowledge that as executor he lacked the authority to mortgage the estate.
There was no evidence presented in opposition to the motion for summary judgment showing that Johnson had breached a duty by allowing Williams, as executor, to enter into the loan transaction. Williams's knowledge of the limitation of his authority as executor estops him from asserting this claim. Courington v. Birmingham Trust National Bank, 347 So. 2d 377 (Ala.1977).
Williams also remains individually liable on the debt. Williams has not denied that he executed the documents relating to the $26,100 loan and the mortgage in his individual capacity and has made no claim of breach of fiduciary duty with respect to executing the documents as an individual.
A necessary element to be proven in an action alleging breach of duty is damages. Williams has not shown any damages resulting from the loan. As executor and as an individual, he has had the benefit of the $26,100 loan transaction. If any damage has been suffered, it was caused by Williams's failure to liquidate the real property and pay the estate's indebtedness.
Williams's negligence claim is based upon the alleged breach of fiduciary duty by Johnson concerning the loan transaction. Again, Williams had knowledge of his lack of authority as executor to mortgage the estate property.
Williams is individually liable on the debt and is not claiming negligence as to Johnson's duty to him as an individual.
Williams's claim as to fraud by Johnson in his capacity as attorney for the estate and Williams, as executor, is also based on the loan transaction. The trial court specifically concluded that there was not a scintilla of evidence presented by Williams that Johnson had a present intent to deceive or that Johnson suppressed any material fact regarding the loan transaction. We agree.
Williams has produced no evidence regarding a conspiracy between Johnson and CNB.
The circuit court properly entered the summary judgment in favor of Johnson. We affirm.
AFFIRMED.
ALMON, SHORES and HOUSTON, JJ., concur.
JONES, J., concurs in the result. | September 21, 1990 |
e42f4525-72be-4f8a-ad59-2fadd2e8eb59 | Doe v. Swift | 570 So. 2d 1209 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1209 (1990)
Jane DOE
v.
George R. SWIFT, as Finance Director of the State of Alabama, et al.
George R. SWIFT, as Finance Director of the State of Alabama, et al.
v.
Jane DOE.
89-604, 89-703.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied November 9, 1990.
Bingham D. Edwards and Mark B. Craig, Decatur, and Alvin T. Prestwood, Montgomery, for appellant/cross-appellee.
Leura J. Garrett, Asst. Atty. Gen., J. Knox Argo of Argo, Enslen, Holloway & Sabel, and Thomas S. Lawson, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees/cross-appellants.
HOUSTON, Justice.
In effect, we are asked by Jane Doe ("the plaintiff") to require the defendants,[1]*1210 through the State Employees' Liability Trust Fund (the "Fund"), established pursuant to Alabama Code 1975, § 36-1-6.1 (Act 83-521, Alabama Legislature 1983) ("the Act"), to pay a judgment that the plaintiff had obtained against Dr. John Hall, a state psychologist, for sexually assaulting the plaintiff. The plaintiff had acquired her judgment against Dr. Hall in an earlier federal action.
In the federal action, the plaintiff alleged that while she was involuntarily committed at North Alabama Regional Hospital, she was sexually assaulted by Dr. Hall, a psychologist assigned to the hospital. A jury awarded the plaintiff $1.5 million in compensatory damages and $5 million in punitive damages against Dr. Hall. The allegations of the plaintiff's complaint in the federal action were that "Dr. Hall willfully and intentionally engaged in a course of conduct which he knew was in direct violation of his duties and obligations" and that he "recklessly and wantonly disregarded his duties and obligations." When the State of Alabama failed to pay the federal judgment against Dr. Hall out of the Fund, the plaintiff brought this state court action, seeking to prove that Dr. Hall was entitled to protection by the Act, because, the plaintiff alleged, his sexual assaults on her were "committed while in the performance of [his] official duties in the line and scope of [his] employment," and seeking to compel payment of the judgment from the Fund. The trial court entered summary judgment for the defendants. The plaintiff appealed.[2]
The express purpose of the Act is, in pertinent part, as follows (as quoted from the title of the Act):
Pursuant to the Act, certain "terms and conditions" were adopted, which the plaintiff contends should be interpreted to expand the protection authorized by the Act so as to cover all acts by state employees, regardless of whether such acts were done "while in the performance of their official duties in the line and scope of their employment." The trial court rejected such reasoning, holding as follows:
We agreethe Act controls the outer limits of the protection afforded. Thus, in order to resolve the dispositive issue, we must interpret the language in the Act, "while in *1211 the performance of their official duties in the line and scope of their employment."
There have been numerous Alabama cases interpreting the "line and scope language." These cases are relevant to interpret the phrase "line and scope" in the Act and, thus, the protection afforded by the Act.
Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 401, 232 So. 2d 638, 642 (1970) (citations omitted) (emphasis added); see, also, Plaisance v. Yelder, 408 So. 2d 136 (Ala.Civ.App.1981) (in which the Court of Civil Appeals noted that the test is whether "it can be shown that the servant acted from wholly personal motives having no relation to the business of the master").
In Prosser v. Glass, 481 So. 2d 365 (Ala. 1985), the "furtherance of the employment" aspect of the test was discussed. In Prosser, the employee, a mechanic employed to assist in developing a fuel-saving device, was assisting in repairing a truck for a neighboring business, but at his employer's place of business. This Court, finding that the employee was not acting in the line and scope of employment, found that his repair of the truck "would not reasonably further the purpose of developing the fuel-saving device, which was the business at hand. Therefore, (the employee's) deviation ... was ... outside the scope of employment." (Emphasis added.)
In Joyner v. AAA Cooper Transp., 477 So. 2d 364 (Ala.1985), the plaintiffs sued an employer, alleging that its terminal manager had committed assault and battery by "forcing or attempting to force them to engage in homosexual acts with him." Citing Solmica of the Gulf Coast, Inc., supra, this Court noted that the manager's acts were not in the line and scope of his employment, and were not "in furtherance of AAA's business." In Great Atlantic & Pacific Tea Co. v. Lantrip, 26 Ala.App. 79, 153 So. 296 (1934), the Alabama Court of Appeals held that sexual advances made by a store clerk while waiting on the plaintiff, including forcibly putting the plaintiff's hand on a certain part of his body, was "entirely personal ... and was wholly aside from the master's business." Thus, there was no liability under respondeat superior.
There are numerous other cases[3] holding that sexual misconduct by an employee is purely personal and outside the line and scope of his employment. In Andrews v. United States, 732 F.2d 366 (4th Cir.1984), Andrews sued the Government under the *1212 Federal Tort Claims Act, alleging that Gee, a military physician's assistant, had seduced Ms. Andrews and that his supervisor, Dr. Frost, had been negligent in supervising Gee. For the plaintiff to recover under the Act, Gee and Frost must have been acting within the line and scope of their employment. The court noted that "Gee was furthering his self-interest, not his employer's business, at the time he seduced his patient." However, Andrews was allowed to proceed with the suit, because Dr. Frost was alleged to have negligently supervised Gee and the supervision of Gee was within the line and scope of Frost's employment.
The facts in Andrews were very similar to the facts in this case. Like the plaintiff in Andrews, this plaintiff sued the principal actor, Dr. Hall, and his supervisor, in the federal action. In that case, the claim against the supervisor was settled and payment was made by the Fund, since, as noted in Andrews, negligent supervision is within the line and scope of a supervisor's official duties. In her suit against Dr. Hall, the plaintiff established that she had been sexually assaulted by Dr. Hall, whose misconduct she alleged in her federal complaint was "wholly personal" and not done "in furtherance of his employment," but solely "to gratify his own feelings." The sexual assault was not committed in the line and scope of his employment by the State of Alabama.
We have carefully reviewed the cases cited by the plaintiff as authority for the proposition that "sexual acts can be in the line and scope of one's employment."[4] We are not persuaded by the holdings in these cases. Furthermore, of these cases, only Simmons v. United States, 805 F.2d 1363 (9th Cir.1986), is relevant to the facts of this case. Simmons was a patient of Kammers, *1213 a counselor with the Indian Health Service. She saw Kammers for counseling from 1973 until August 1980 and then maintained the counseling relationship through telephone contacts until July 1981. In October 1978, after five years of counseling, Simmons and Kammers entered into a romantic relationship and in January 1979 had sexual intercourse. After the relationship ended, Simmons sued the United States under the Federal Tort Claims Act. Under that Act, in order for Simmons to recover, she had to prove that Kammers was acting within the scope of his employment. The Court of Appeals for the Ninth Circuit concluded that Kammers was acting within the scope of his employment because he mishandled the "transference phenomenon," a condition that develops in counselling gradually over a period of time and that results from the patient's placing trust in the counselor.
In the instant case, the plaintiff, in addition to making the contention made in her federal court complaintthat "[Dr.] Hall willfully and intentionally engaged in a course of conduct which he knew was in direct violation of his duties and obligations" and "recklessly and wantonly disregarded his duties and obligations" makes the same contention that was made by the plaintiff in Simmonsthat abuse of the transference phenomenon is within the line and scope of a counselor's employment. That is, she contends that sex between patient and counselor no longer automatically prevents the application of respondeat superior, because, she argues, abuse of the transference phenomenon is not "purely personal," but constitutes negligent counseling. However, the very case upon which she seeks to rely rebuts her argument.
In Simmons, the Government relied upon Andrews v. United States, supra. In Andrews, the physician's assistant suggested a sexual involvement to a patient on her second visit to the clinic and during her first counseling session with him. As egregious as his conduct was, it did not amount to an abuse of a trusting dependency relationship such as that which had evolved during Simmons's five years of successful therapy with Kammers. As the Court of Appeals noted in Simmons, it is not medically possible for the transference phenomenon to develop in a short period of time. There must be time for the patient to come to trust the counselor and to "transfer" to the counselor feelings of trust that the patient has previously had for someone else.
In the instant case, it is undisputed that Dr. Hall suggested sexual intercourse during his first meeting with the plaintiff and that the intercourse occurred that same afternoon. Furthermore, the plaintiff's sworn testimony in the federal court action shows that that intercourse was not consented to on her part as a result of any trust she placed in Dr. Hall. Rather, in the federal action, the plaintiff characterized her sexual relations with Dr. Hall as an assault by him for his own gratification. Thus, the plaintiff cannot seek shelter under the transference phenomenon "umbrella." The further undisputed evidence reveals that Dr. Hall's actions were against all rules of his profession and were without any benefit to his employer, the State Department of Mental Health and Mental Retardation. Applying established principles of law, we must conclude that Dr. Hall's sexual intercourse with the plaintiff was not for the benefit of his employer and was not "committed ... while in the performance of [his] official duties in the line and scope of [his] employment." Ala.Code 1975, § 36-1-6.1(a). Therefore, pursuant to the provisions of the Act, the Fund cannot (and should not) provide "protection" for Dr. Hall from the consequences of his sexual assault on the plaintiff.
In opposition to the defendants' cross-motion for summary judgment, the plaintiff filed excerpts from the transcript of her testimony in federal court. The trial court informed the plaintiff that her trial testimony "clearly establishes that the sexual intercourse did not take place under a guise of treatment or therapy but resulted from Hall's threats to definitely [sic] institutionalize [the plaintiff] if she did not submit to his sexual advances." The plaintiff then sought the trial court's permission to *1214 file an affidavit. After the plaintiff filed her affidavit, the defendants moved to strike it on the basis that it contradicted her earlier testimony regarding the same matters.
Robinson v. Hank Roberts, Inc., 514 So. 2d 958, 961 (Ala.1987), quoting Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984). See, also, Couch v. Woody Anderson Ford, Inc., 558 So. 2d 888 (Ala.1989); Enoch v. Firestone Tire & Rubber Co., 534 So. 2d 266 (Ala.1988); and Lady Corrine Trawlers, Inc. v. Zurich Insurance Co., 507 So. 2d 915 (Ala.1987).
In ruling on the defendants' motion to strike, the trial court observed that the matters stated in the plaintiff's affidavit were "clearly relevant" to the merits of her previous trial. Subsequently, in its order, the court discussed in great detail how the plaintiff's affidavit contradicted her trial testimony. Specifically, the court found as follows:
(Emphasis added.)
The trial court, noting that the plaintiff's explanation for the inconsistencies between her affidavit and her earlier testimony was inadequate, held that "[the plaintiff's] affidavit cannot be relied upon to create an issue of fact." The trial court further noted that the clear and unambiguous questions asked of the plaintiff at trial called for responses that she did not then give, but which she now gives in her affidavit. The trial court also noted that the plaintiff's responses at trial were clear and unambiguous. Therefore, the trial court held that it would not consider the plaintiff's affidavit in opposition to the defendants' cross-motions for summary judgment but that it would consider her earlier trial testimony. We agree with the trial court that we cannot permit the plaintiff to obtain a jury award against Dr. Hall based upon her testimony of a "purely unadulterated rape" and then in a later action recover that judgment from the Fund by testifying to her consensual submission due to the particular nature of a psychologist/patient relationship.
Having thoroughly reviewed the record, the applicable law, the trial court's order, and the parties' briefs, we are persuaded that the trial court did not err in refusing to consider the plaintiff's affidavit in opposition to the defendants' cross-motion for summary judgment.
Based on the foregoing, we hold that the trial court properly granted the defendants' motion for summary judgment. The plaintiff has raised numerous issues, some of which were not sufficiently argued in her brief for us to consider them. The others have been consolidated in our discussion.
*1215 89-604 AFFIRMED.
89-703 AFFIRMED.
MADDOX, JONES, ALMON and ADAMS, JJ., concur.
STEAGALL, J., recused.
[1] The defendants named in their official capacities as members of the Governing Board of the Liability Fund, also known as the General Liability Trust Fund of the State of Alabama, were George R. Swift, finance director of the State of Alabama; Don Siegelman, attorney general of the State of Alabama; and John Greene, insurance commissioner for the State of Alabama. The defendants named in their official capacities as members of the Coverage Committee of the aforementioned fund were Robert Childree, state comptroller; and George Wallace, Jr., state treasurer. Also named as a defendant was John Hall, a psychologist employed as the Chief of Psychology Services at North Alabama Regional Hospital (a state mental institution).
[2] The defendants filed a cross-appeal contending that the trial court's determination on the limits of liability was erroneous. However, because of our resolution of this case, we pretermit any discussion of the cross-appeal.
[3] In Hoover v. University of Chicago Hospitals, 51 Ill.App.3d 263, 9 Ill.Dec. 414, 366 N.E.2d 925 (1977), the plaintiff was a patient in the hospital when the employee-doctor told her that if she did not get sexual relief she would need open heart surgery. Subsequently, sexual relations occurred; she later sued the doctor and the hospital. The Court noted that the employer is not liable "when the act is committed solely for the benefit of the employee." The Court held that the "sexual assault cannot be interpreted as an act in furtherance of the hospital's business. This ... act of the doctor was committed solely for the benefit of the doctor...."
In Doe v. United States, 769 F.2d 174 (4th Cir.1985), brought under the Federal Tort Claims Act, the plaintiff claimed that an Air Force officer who was the plaintiff's social worker treating her for "blackouts" subjected her to "deviant sexual conduct." In upholding the dismissal of the claim, the Court held that the officer "clearly was acting for his personal gratification rather than within the scope of his employment."
Also, holding similarly in regard to an employee's sexual acts are: Taylor v. Doctors Hosp. (West), 21 Ohio App.3d 154, 486 N.E.2d 1249 (1985); Noto v. St. Vincent's Hosp. and Medical Center, 142 Misc.2d 292, 537 N.Y.S.2d 446 (Sup. Ct.1988); Big Brother/Big Sister v. Terrell, 183 Ga.App. 496, 359 S.E.2d 241 (1987).
[4] In Cotton v. Kambly, 101 Mich.App. 537, 300 N.W.2d 627 (1980), the plaintiff claimed that she suffered mental and emotional damage when her psychiatrist induced her to engage in sexual intercourse during the course of psychiatric therapy. In reversing a summary judgment in favor of the psychiatrist and the University Center, the court did not address liability on the basis of respondeat superior. Rather, the court, holding that "the essence of the [plaintiff's] claim was the [psychiatrist's] departure from proper standards of medical practice," addressed the issue of medical malpractice and the effect that a statute abolishing the cause of action for common law seduction had on this type of malpractice.
St. Paul Fire & Marine Ins. Co. v. Asbury, 149 Ariz. 565, 720 P.2d 540 (App.1986), involved plaintiffs who claimed that their gynecologist improperly and intentionally manipulated their clitorises while performing routine gynecological examinations. The trial court held that this conduct was committed in the course of and as an inseparable part of the professional services rendered and was covered by St. Paul's policy providing coverage for conduct committed while "providing or withholding of professional services." In affirming the lower court, the Court of Appeals found that the tortious sexual abuse of the plaintiffs was intertwined and inseparable from the services performedin essence, that the doctors' departure from standard practice during the course of the treatment, the mishandling of the plaintiffs, fell within the language of the policy so as to afford protection.
In Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976), the plaintiff sued Pep Line Trucking Company, Inc., under a theory of respondeat superior. Carey was employed by the trucking company to deliver a mattress to the plaintiff. Carey insisted that the plaintiff pay by cash. The plaintiff testified that Carey told her that if she did not have cash, "he was going to take it on my ass, and he told me that he was no delivery man, he was a rapist ... and then he threw me on the bed and he had a knife to my throat ... and then he raped me." Holding that the facts did support a case of liability under the doctrine of respondeat superior, the Court of Appeals, in reinstating a jury verdict against the trucking company, stated that if the assault was not motivated or triggered or occasioned by anything in the employment activity but was a result of only promiscuity and lust, there should be no liability but that that question, in the instant case, was for the jury to decide.
In Doe v. Ft. Lauderdale Medical Center Management, Inc., 522 So. 2d 80 (Fla.Dist.Ct.App. 1988), the medical center was granted a summary judgment in an action in which a plaintiff sought to prove that the medical center's manager committed a sexual battery on her when she was interviewed at the medical center for a job. The manager performed a physical examination, although he was not a medical doctor, as he pretended to be. The Florida District Court of Appeals reversed the summary judgment in favor of the medical center on a complaint that asserted liability under the theories of respondeat superior based on apparent authority, negligent supervision, and breach of an implied contract, without discussing the basis for its reversing that judgment.
Simmons v. United States, 805 F.2d 1363 (9th Cir.1986) (discussed in the body of this opinion). | September 28, 1990 |
30f95da3-6609-4248-8ab2-17ec4aaa5cdf | Kenney v. Kroger Co. | 569 So. 2d 357 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 357 (1990)
Betty Louise KENNEY and William D. Kenney
v.
The KROGER COMPANY.
89-1016.
Supreme Court of Alabama.
September 21, 1990.
Earl E. Cloud, Huntsville, for appellants.
William W. Sanderson, Jr. and Joan-Marie Pace of Lanier, Ford, Shaver & Payne, Huntsville, for appellee.
*358 HORNSBY, Chief Justice.
The plaintiffs, Betty Louise Kenney and William D. Kenney, appeal from a summary judgment entered in favor of the defendant, the Kroger Company. Betty Kenney sued to recover damages for injuries that she sustained as the result of a slip and fall accident at the defendant's store, and her husband sued for loss of consortium. The plaintiffs alleged that the defendant negligently maintained the floor at its supermarket and that its negligence proximately caused Mrs. Kenney to fall and be injured. We reverse and remand.
On October 19, 1988, Mrs. Kenney went shopping at the defendant's store. As she was pushing her shopping cart down an aisle, she slipped and fell onto the floor. The fall injured her back, neck, and left leg. There was evidence that when paramedics arrived to aid Mrs. Kenney, they found her lying on her back in a pool of Pine-Sol, a cleanser-disinfectant, the clothing of her back and buttocks area saturated with the cleanser. There was also evidence that there was an open bottle of Pine-Sol on the shelf with its cap missing.
In their complaint the plaintiffs alleged that the defendant negligently caused or allowed a dangerous condition to exist on the floor of the supermarket. The defendant made a motion for summary judgment, and the trial court granted it but did not specify any reason for granting the motion.
In a slip and fall case the plaintiff must prove
Cox v. Western Supermarkets, Inc., 557 So. 2d 831, 832 (Ala.1989) (quoting Winn-Dixie Store No. 1501 v. Brown, 394 So. 2d 49, 50 (Ala.Civ.App.1981)).
A summary judgment is proper only where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of fact must be resolved against the moving party. Kizziah v. Golden Rule Insurance Co., 536 So. 2d 943 (Ala.1988). Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the nonmoving party must rebut the moving party's prima facie showing by presenting evidence that creates a genuine issue of material fact. Rule 56, A.R.Civ.P.; Wimberly v. K-Mart, Inc., 522 So. 2d 260, 261 (Ala.1988).
Because this action was filed after June 11, 1987, Ala.Code 1975, § 12-21-12, mandates that the nonmovant meet his burden by offering "substantial evidence." Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989). Substantial evidence is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Fla., 547 So. 2d 870, 871 (Ala.1989).
In the present case, the defendant argues that it was entitled to a summary judgment because, it says, it made a prima facie showing that there was no genuine issue of material fact concerning whether it had actual or constructive notice that there was any foreign substance on the floor and the plaintiffs failed to present substantial evidence that it had such notice. Therefore, the defendant argues, it was entitled to a judgment as a matter of law.
As stated above, the plaintiff at the summary judgment stage need only present "substantial evidence" to establish (1) that the foreign substance was on the floor long enough to impute constructive notice to the defendant, or (2) that the defendant had actual notice of the substance's presence, or (3) that the defendant was delinquent in *359 not discovering and removing it. Cox, supra.
Wimberly, supra, at 261.
In this case Mrs. Kenney presented her own affidavit and the deposition of John Mark Howell, one of the paramedics that aided the plaintiff after her fall. Mrs. Kenney stated that at the time she entered the supermarket there were many people in the store due to a promotional drawing and that she had gone down several aisles before slipping and falling in front of the Pine-Sol. Mrs. Kenney further stated that as she fell backward she smelled the strong odor of Pine-Sol.
Mr. Howell stated in his deposition that the paramedics received the call about the accident at 10:44 a.m. Mr. Howell said that when he arrived, the smell of Pine-Sol permeated the area. In addition, Mr. Howell stated that he found the plaintiff lying on her back in a pool of Pine-Sol, the clothing of her back and buttocks area well saturated with Pine-Sol. Mr. Howell also said that he saw an open bottle of Pine-Sol on the shelf with the cap missing.
The defendant argues that this evidence did not constitute substantial evidence that the defendant was negligent in the maintenance of its floors.
Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874, 876 (Ala.1982).
The plaintiff's evidence here indicates that a large amount of Pine-Sol had collected on the floor. In answers to interrogatories, the defendant's store manager stated that the supermarket floors were cleaned daily between 6 a.m. and 9 a.m. Although the store manager stated that on the morning of Mrs. Kenney's fall he had had no knowledge of any foreign substance on the floor, there was heavy traffic in the supermarket that morning due to the promotional drawing. Mrs. Kenney's accident apparently occurred shortly before 10:44 a.m., one hour and forty minutes after the last routine cleaning.
Based on these facts, a reasonable person could conclude that the length of time necessary for an amount of Pine-Sol to collect in a pool large enough to saturate the clothing of Mrs. Kenney's back and buttocks area was a sufficient length of time to either put the defendant on constructive notice that the substance was there or make the defendant delinquent in not discovering and removing the substance before Mrs. Kenney slipped and was injured.
Thus, there is a question of fact as to how long the Pine-Sole had been on the defendant's floor. "This is all that is necessary to defeat [a motion for] summary judgment. We have frequently observed that summary judgment is seldom appropriate in negligence cases." Wimberly, supra, at 261. Consequently, the resolution of the question of whether the defendant had constructive or actual notice or was delinquent in failing to discover and remove the Pine-Sol before the plaintiff fell is the responsibility of the trier of fact. Cox, supra. Therefore, we reverse and remand.
REVERSED AND REMANDED.
MADDOX, JONES, SHORES and KENNEDY, JJ., concur.
*360 STEAGALL, J., concurs in the result.
HOUSTON, J., dissents. | September 21, 1990 |
b1401e15-2448-4b36-ae05-7f9a854e8c52 | Alabama Kraft Co. v. SOUTHEAST ALA. GAS | 569 So. 2d 697 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 697 (1990)
ALABAMA KRAFT COMPANY, A DIVISION OF GEORGIA KRAFT COMPANY (now known as Inland-Rome, Inc.) (plaintiff)
v.
The SOUTHEAST ALABAMA GAS DISTRICT and Duff & Phelps, Inc. (defendants).
DUFF & PHELPS, INC. (third-party plaintiff)
v.
Vera SMITH, as executrix of the estate of Robert J. Smith, deceased (third-party defendant).
89-715-CER.
Supreme Court of Alabama.
September 28, 1990.
Warren B. Lightfoot and Madeline H. Haikala of Lightfoot, Franklin, White & Lucas, Birmingham, and Robert H. Harris and James N. Walter, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for Alabama Kraft Co.
John R. Matthews, Jr. and Clyde C. Owen, Jr. of Ball, Ball, Matthews & Novak, Montgomery, and Edward C. Fitzpatrick and Patrick E. Deady of Lord, Bissell & Brook, Chicago, Ill., for Duff & Phelps, Inc.
M. Roland Nachman, Jr. and James A. Byram, Jr. of Balch & Bingham, and Griffin Sikes, Montgomery, for Vera Smith, as executrix of the estate of Robert J. Smith, deceased.
HORNSBY, Chief Justice.
Pursuant to Rule 18, A.R.App.P., this Court accepted the following certified questions from the United States District Court:
The following statement of facts accompanied the certified questions:
"Section 43-2-350(b) provides, in part, as follows:
The purpose of § 43-2-350(b) is "`to promote a speedy, safe and definitive settlement of estates by giving the personal representative notice of all claims against the estate in his hands.'" Moore v. Stephens, 264 Ala. 86, 91, 84 So. 2d 752, 758 (1956) (quoting Smith v. Fellows, Adm'r, 58 Ala. 467 (1877); see, e.g., Lett v. Watts, 463 So. 2d 138 (Ala.1984); Motley v. Battle, 368 So. 2d 20 (Ala.1979); Fretwell v. McLemore, 52 Ala. 124 (1875). The phrase "[a]ll claims against the estate of a decedent" has been interpreted to include both contract and tort claims. Ivory v. Fitzpatrick, 445 So. 2d 262 (Ala.1984); Fox v. Wood, 382 So. 2d 1118 (Ala.1980); Moore v. Stephens, supra. See also Motley v. Battle, supra (phrase applies to counterclaims). However, this Court has long recognized an exception to the presentment requirement under § 43-2-350(b) for contingent claims that have not accrued at the time letters testamentary have been issued. See Hartford Accident & Indem. Co. v. Kuykendall, 287 Ala. 36, 247 So. 2d 356 (1971); Fretwell v. McLemore, supra, and Jones' Executors v. Lightfoot, 10 Ala. 17 (1846). This Court stated in Fretwell:
52 Ala. at 140-41 (citations omitted). In Moore v. Stephens, supra, this Court further defined a "contingent claim" as excluding claims for unliquidated damages:
264 Ala. at 89, 84 So. 2d at 755-56 (quoting Hicks v. Wilbur, 38 R.I. 268, 94 A. 872 (1915)) (emphasis added).
This Court has held that one who acts as a surety is not barred from bringing a claim against his principal. In Hartford Accident & Indem. Co. v. Kuykendall, supra, J.P. Kuykendall brought suit for a declaration of his rights against the administrator of the estate of L.B. White. Kuykendall had allegedly acted as a surety for L.B. White on two promissory notes. He argued that because he paid the notes as surety he had a claim against the decedent's estate and that the claim was not barred under the nonclaim statute. This Court held that Kuykendall's claim was contingent and therefore fell under the nonclaim statute exception. See Fretwell v. McLemore, supra; see also Edgehill Corp. v. Hutchens, 282 Ala. 492, 213 So. 2d 225 (1968) (rent claim was contingent where lease provided for contingencies).
Principal-surety relationships are similar to master-servant or principal-agent relationships because in both cases a principal, master, or one acting as a surety may recover from his agent, servant, or principal, respectively, once the underlying liability or obligation is paid. In In re Covington Grain Co., 638 F.2d 1357, 1362 (5th Cir.1981), the court stated that "[u]nder the principles enunciated in American Southern Insurance Co. v. Dime Taxi Service, Inc., ... a master is entitled to recover from his servant damages which the master has been required to pay by reason of the negligence of his servant." In American Southern Ins. Co. v. Dime Taxi Serv., Inc., 275 Ala. 51, 151 So. 2d 783 (1963), this Court stated that a master could collect from its servant (or its servant's liability insurer) damages paid by reason of its legal responsibility for the servant's negligent acts. See Huey v. Dykes, 203 Ala. 231, 82 So. 481 (1919). This right of indemnity is usually founded upon an implied contract or legal duty. See Travelers Indemnity Co. v. Firestone Tire & Rubber Co., 360 F. Supp. 1328 (S.D.Ala.1973); Belcher v. Birmingham Trust Nat'l Bank, 348 F. Supp. 61 (N.D.Ala.), stay denied, 395 F.2d 685 (5th Cir.1968). Such a right to indemnity does not arise, however, until one acting as surety satisfies his principal's obligation, or until a master or principal pays damages arising from his servant's or agent's negligent or fraudulent acts. Nevertheless, this Court recognizes a difference between principal-surety relations and master-servant or principal-agent relations, because a master or principal in an agency situation normally has more control over its servant or agent than does one who acts as surety. We find that the right *701 to indemnification for a master or principal is contingent and falls within the established exception to § 43-2-350(b). However, a master or principal in an agency relationship must prove that he or she, acting with reasonable diligence, did not or could not discover the servant's or agent's tortious acts resulting in the claim against the master or principal.
Duff & Phelps's claim is not barred by § 43-2-350(b), because it is contingent in nature and thus falls within the established exception to § 43-2-350(b). Because Duff & Phelps may proceed with its claim without bar, we find it unnecessary to consider the second question.
QUESTION ANSWERED.
JONES, ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
Because I think that Duff & Phelps's claim is not a "contingent claim," and thus is barred, I must respectfully dissent.
The words "all claims against the estate of a decedent" in Ala.Code 1975, § 43-2-350(b), include tort claims. Ivory v. Fitzpatrick, 445 So. 2d 262 (Ala.1984). This Court has recognized an exception to the presentment requirement in the Alabama statute of nonclaim for contingent claims that have not accrued at the time the letters testamentary issue. See Hartford Accident & Indem. Co. v. Kuykendall, 287 Ala. 36, 247 So. 2d 356 (1971); Fretwell v. McLemore, 52 Ala. 124 (1875), and Jones' Executors v. Lightfoot, 10 Ala. 17 (1846). This Court stated in Fretwell:
52 Ala. at 140-41. In Moore v. Stephens, 264 Ala. 86, 84 So. 2d 752 (1956), this Court further defined a "contingent claim" as excluding claims for unliquidated damages:
264 Ala. at 89, 84 So. 2d at 755-56 (quoting Hicks v. Wilbur, 38 R.I. 268, 94 A. 872 (1915)).
Duff & Phelps argues that its claim for indemnification against Smith's estate is a contingent claim in that it would never have accrued if Alabama Kraft Company had not sued it; in other words, Duff & Phelps argues that it will have suffered no legal injury until it is required to pay damages to Alabama Kraft, if it is so required. I am of the opinion that Duff & Phelps misconstrues the nature of the claim it has against Robert J. Smith's estate. Duff & Phelps's indemnification claim is based upon the alleged negligence of Smith in not passing the gas refunds on to Alabama Kraft. Smith's alleged failure to perform his duties with due care constitutes legal injury, whether or not the full amount of the damages is known or apparent; Smith's actions occurred during his lifetime, and Duff & Phelps certainly would have been able to sue Smith for his alleged breach of duty immediately after it occurred, regardless of whether the full amount of the damages was known. As this Court stated recently in Watson, Watson, Rutland/Architects, Inc. v. Montgomery County Bd. of Educ., 559 So. 2d 168, 175 (Ala.1990):
Here, Duff & Phelps's claim is for the allegedly negligent acts of Smith occurring while he was alive. The alleged circumstance that Duff & Phelps did not know that the gas refunds had been withheld would not constitute an exception to the statute of limitations. "[N]either difficulty of ascertainment nor ignorance of the cause of action will toll the statute of limitations unless superinduced by fraud." Garrett v. Raytheon Co., 368 So. 2d 516, 520 (Ala.1979). However, even fraud is not an exception that will extend the time under the nonclaim statute. Yniestra v. Tarleton, 67 Ala. 126, 129 (1880).
The settlement of estates is a desirable goal. In this case, the principal has been sued. Its agent allegedly committed the wrong. The question is: Should the principal, if sued after its agent dies, be able to seek indemnification from the estate of the agent if the principal is found to be liable. I would answer "yes, if" the claim is filed within the period allowed by law.
I would hold that Duff & Phelps's claim against Smith's estate is not a "contingent claim" so as to be excepted from § 43-2-350(b). Therefore, I would answer that Duff & Phelps's claim against Smith's estate is barred by § 43-2-350(b).
STEAGALL, J., concurs. | September 28, 1990 |
da85c0f0-8402-424d-b1f5-2810f650b580 | Ex Parte Williams | 571 So. 2d 338 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 338 (1990)
Ex parte Roy C. WILLIAMS.
(Re Roy Williams v. State).
89-1381.
Supreme Court of Alabama.
November 9, 1990.
*339 Al Pennington, Mobile, for petitioner.
Don Siegelman, Atty. Gen. and William D. Little, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Roy C. Williams appealed from the second jury sentencing hearing, after remand, recommending that he be sentenced to death. The Court of Criminal Appeals affirmed the trial court's sentence of death. 571 So. 2d 336 (1989). We affirm the Court of Criminal Appeals' judgment.
Roy C. Williams was originally convicted in the Circuit Court of Mobile County of capital murder and was sentenced to death. The Court of Criminal Appeals affirmed the conviction and sentence in Williams v. State, 556 So. 2d 737 (Ala.Cr.App.1986). This Court affirmed, but remanded the case for a new jury sentencing hearing; see Ex Parte Williams, 556 So. 2d 744 (Ala. 1988). After all the evidence was presented at the second sentencing hearing and the jury weighed the aggravating and mitigating circumstances, it returned a recommendation of death. Thereafter, the trial court conducted an independent examination of the aggravating and mitigating circumstances and accepted the jury's recommendation, sentencing Williams to death. The Court of Criminal Appeals reviewed the record, pursuant to Ala.Code 1975, § 13A-5-53, and finding no plain error, affirmed the sentence.
The only issue raised on the certiorari review is whether the trial court intruded into the voir dire process in such a manner as to unduly limit Williams's ability to rehabilitate the jurors challenged on the basis of their beliefs regarding the imposition of the death penalty. Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968).
Williams argues that the trial court limited and cut off his rehabilitative questioning of "death qualified" jurors and that because of this he could not ascertain the depth of the prospective jurors' opposition to the death penalty. The alleged cut-off in questioning took place during the following exchange:
Williams relies on Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968), arguing that the trial judge's "intrusion" into this exchange limited Williams's ability to test the depth of the prospective juror's feelings on the death penalty. Witherspoon, however, clearly stands only for the proposition that the sentence of death cannot be carried out when jurors who have voiced only general objections to the death penalty are excluded. In the present case, each of the prospective jurors voiced more than general objections to the death penalty. The questions posed by the trial court very adequately inquired into the depth of the prospective jurors' objections to the death penalty. All prospective jurors questioned indicated that under no circumstances could they ever recommend the imposition of that sentence. See Crawford v. State, 377 So. 2d 145 (Ala.Cr.App.1979) (where prospective jurors' responses to trial court's questions indicated that they would not vote to impose the death penalty under any circumstances, even if facts justified it, there was no error in excluding them); Ex Parte Wright, 494 So. 2d 745 (Ala.1986); Ex Parte Dobard, 435 So. 2d 1351 (Ala.1983); Ex Parte Baldwin, 456 So. 2d 129 (Ala. 1984).
Williams argues further that the trial judge's "intrusion" into the questioning also amounted to an abuse of discretion. We disagree. What Williams calls the trial judge's "intrusion" in no way limited Williams's ability to attempt to rehabilitate the prospective juror, but instead corrected a misstatement by defense counsel as to what that juror would do if selected. Defense counsel, in his question to that juror, went far beyond the relevant scope of questioning, namely, the juror's objections to the death penalty, into whether the juror would follow his oath. The trial judge was wholly correct and did not abuse the discretion afforded him in voir dire proceedings.
Last, Williams argues that the trial judge did not allow him, prior to the exchange quoted above involving prospective juror Jordan, any opportunity to rehabilitate other jurors on their objections to the death penalty before the prosecution's challenges were granted. The record, however, indicates that this was not the case. Other than a general continuing objection made at the commencement of the death qualification, defense counsel made no attempt to question the prospective jurors on their feelings until Mr. Jordan voiced his objections to the death penalty. At that time, defense counsel requested that he be allowed to ask a question, and the trial judge readily granted his request. This indicates to us that if defense counsel had requested to be allowed to ask questions of prior challenged jurors, that request too would have been granted. The record clearly shows that defense counsel chose not to question those jurors until Mr. Jordan spoke out. We see no error.
We have carefully examined Williams's arguments, as well as the entire record, and we find no instances of plain error. We must agree with the Court of Criminal Appeals that the appellant's sentence of death was proper. That court's judgment *341 affirming the sentence of death imposed by the circuit court is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | November 9, 1990 |
68721b03-19be-4e8f-ad37-3c8d8299317b | Rainer v. Feldman | 568 So. 2d 1226 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 1226 (1990)
Aretha RAINER
v.
Alvin FELDMAN.
89-1605.
Supreme Court of Alabama.
September 21, 1990.
Donald V. Watkins and Tyrone C. Means of Thomas, Means & Gillis, Montgomery, for appellant.
Howard A. Mandell of Mandell & Boyd and Micki Beth Stiller, Montgomery, for appellee.
STEAGALL, Justice.
This appeal presents an issue of first impression regarding which parent of an illegitimate child may bring a wrongful death action based upon the death of that minor child.
Kenyarda Rainer was born on June 27, 1980, to Louis Vinson and Aretha Rainer, who were not married and were not living together. On May 23, 1989, Kenyarda drowned in a swimming pool at Oakhurst Apartments in Montgomery.[1] Vinson filed a wrongful death action on June 1, 1989, pursuant to Ala.Code 1975, § 6-5-391. Rainer filed a separate wrongful death action on July 12, 1989, based on the same statute. After a hearing on Vinson's and *1227 Feldman's motions to consolidate the two actions, as well as on Vinson's motion to dismiss, the trial court entered the following order:
The statute allowing a cause of action for the wrongful death of a minor is § 6-5-391, which reads:
This statute specifically incorporates by reference § 6-5-390, which deals with a cause of action for the injury of a minor:
(Emphasis added.)
These statutes make it clear that either the father or the mother of a minor child, but not both, may bring a cause of action for the wrongful death of that child. Before Code § 6-5-390 was amended in 1979, it gave the father the priority of right in bringing such a suit. This is no longer the case, however, and now either parent may sue. See Coleman v. Stitt, 514 So. 2d 1007 (Ala.1987).
The present situation is unlike any other that has arisen since that amendment. It is undisputed by the parties that Vinson and Rainer have never been married and have never lived together. It is also undisputed that there has never been an adjudication of custody. What we are called upon to decide is who had legal custody of Kenyarda prior to his death.
There is a strong presumption in Alabama, which has not been modified or abolished either judicially or legislatively, that the mother of a child born out of wedlock has a superior right of custody over all other persons, absent good cause that custody should not be vested in her. Lewis v. Crowell, 210 Ala. 199, 97 So. 691 (1923); Jackson v. Farmer, 247 Ala. 298, 24 So. 2d 130 (1945); Griggs v. Barnes, 262 Ala. 357, 78 So. 2d 910 (1955). See, also, Annot., "Right of Putative Father to Custody of Illegitimate Child," 45 A.L.R.3d 216 (1972).
Vinson was incarcerated in December 1981 and remained in prison all but 18 *1228 months of Kenyarda's life. The record discloses that Kenyarda spent a majority of his time either with Rainer and her mother or with Vinson's mother. Rainer received Aid to Dependent Children benefits on Kenyarda's behalf and attended to his medical needs via Medicaid. Finally, she, along with her mother and Vinson's mother, saw to Kenyarda's food and clothing needs. While Vinson occasionally contributed small sums to support Kenyarda, he was not principally responsible for the child's welfare, financially or otherwise. In fact, Rainer made the financial provisions for Kenyarda's funeral.
Vinson acknowledged paternity of Kenyarda on February 12, 1982, in an action filed with the District Court of Montgomery County, Alabama, and he argues that that acknowledgment of paternity, coupled with Ala.Code 1975, § 26-17-3,[3] evidences that he had equal legal custody with Rainer of Kenyarda. We disagree.
The acknowledgment of paternity, standing alone, does not establish that Vinson had equal custody with Rainer, nor does it override the presumption of custody in favor of Rainer. Moreover, while § 26-17-3 does speak to parentage (it is a provision of the Alabama Uniform Parentage Act, Code 1975, §§ 26-17-1 through 26-17-22), it is not dispositive of the question of custody in this case.
Vinson argues that there is no preference or presumption concerning custody of minor children, whether born in or out of wedlock, and relies mainly on Cochran v. Lowe, 532 So. 2d 1265 (Ala.Civ.App.1988), and Hood v. Wilson, 496 So. 2d 76 (Ala.Civ. App.1986). In Cochran v. Lowe, the Court of Civil Appeals held that the trial court did not abuse its discretion in awarding custody to the natural father of a child born to the mother while she was married to another man. The mother's psychiatric problems mandated awarding custody to the natural father, who was already adequately providing for the child's needs. But see Ex parte Presse, 554 So. 2d 406 (Ala. 1989).
The court in Cochran relied on Ex parte Couch, 521 So. 2d 987 (Ala. 1988), in stating that "[i]t must be recognized that neither parent is given the legal presumption of a primary right to the custody of a minor child, regardless of the age of the child." 532 So. 2d at 1266. The Couch case dealt with an award of custody in a divorce proceeding and it did not modify or abolish the common law presumption regarding custody in the illegitimacy context. Thus, Cochran extended the holding in Couch beyond the facts of that case, so that Cochran is distinguished from the present case.
In Hood v. Wilson, 496 So. 2d 76 (Ala.Civ. App.1986), the parents of a nine-year-old boy had never been married and there had never been a custody determination. The father, however, had a steady job, had legitimated the child, and had married. The mother, on the other hand, had no job and did not have as desirable an environment in which to raise the child. Hood v. Wilson is, thus, consistent with the common law rule in that it took into consideration the best interests of the child, based on the particular facts of that case, in awarding the father custody. In other words, good cause was shown why the mother should not have custody.
We see no good cause in this case to ignore the presumption that favors Rainer as Kenyarda's custodian. We hold, therefore, that the trial court erred in dismissing Rainer's cause of action; the judgment of dismissal is reversed. This cause is remanded and we direct the trial court, instead, to enter a judgment dismissing Vinson's suit.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ADAMS and HOUSTON, JJ., concur.
[1] Defendant Alvin Feldman does business as Oakhurst Apartments and as Alvin Feldman Swimming Pool Company.
[2] That order further stated that all claims brought by Rainer as against Feldman were adjudicated and made final pursuant to Rule 54(b), A.R.Civ.P. This Court has stayed proceedings on Vinson's claim pending a resolution of the issue of which parent has the right to prosecute the action.
[3] "The parent and child relationship shall extend equally to every child and to every parent, regardless of the marital status of the parents." | September 21, 1990 |
feca777d-c0d0-4eca-81c2-e974b5df6571 | Ex Parte Asher, Inc. | 569 So. 2d 733 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 733 (1990)
Ex parte ASHER, INC., et al.
(Re ASHER, INC., et al. v. MOLTON, ALLEN & WILLIAMS CORPORATION.)
89-929.
Supreme Court of Alabama.
September 28, 1990.
*734 Alex F. Lankford III, Edward S. Sledge III and Brian P. McCarthy of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for petitioners.
Broox G. Holmes and Ray M. Thompson of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for respondent.
KENNEDY, Justice.
Asher, Inc. ("Asher"), and others (all of the plaintiffs are hereinafter referred to as "Asher") filed an action against Molton, Allen & Williams Corporation ("MAW"), alleging negligence, breach of contract, wantonness, and fraud and concealment in relation to the solicitation, procurement, and placement of Asher's boating insurance coverage with New England International Surety of America (NEISA). Asher served MAW with interrogatories and requests for production, which MAW partially answered. Asher moved to compel MAW to answer fully a certain interrogatory and requests for production. The trial court denied Asher's motion to compel. Asher petitions this Court for a writ of mandamus to direct the trial court to vacate his denial of the motion to compel and to order MAW to produce the requested documents.
All the plaintiffs are boat owners who purchased policies of insurance for their boating operations from NEISA. The plaintiffs allege that MAW, through its authorized agent and senior vice president, Otis Dunn, solicited their insurance business and placed it with NEISA.
NEISA was an insurance company established in 1986 by its parent company, New England International Surety, Inc., a Panamanian corporation affiliated with DynaSpan, which is apparently a risk retention group. Asher alleges that between April 8, 1988, and April 7, 1989, MAW solicited each of the plaintiff's insurance business. Asher alleges that prior to the time that MAW placed Asher's insurance coverage with NEISA, New England International Surety, Inc., NEISA, and DynaSpan had been ordered by numerous states, including Texas, Florida, and Mississippi, to cease transacting insurance business in those states. In October 1986, NEISA became licensed in Louisiana to insure wet marine business with a maximum exposure of $50,000. On April 6, 1989, the Louisiana insurance commissioner issued a cease and desist order to NEISA, and on April 14, *735 1989, the Louisiana insurance commissioner ordered NEISA into conservatorship.
Asher alleges that Dunn personally contacted each plaintiff and solicited its insurance business. The plaintiffs state that Dunn advised them that NEISA was a good, reputable, and financially sound company, although some of the plaintiffs told Dunn that they had heard NEISA had a poor reputation and was not financially stable. In a letter attached as an exhibit to Asher's petition, Dunn, addressing individuals who are not plaintiffs in this action, states that NEISA was domiciled in Louisiana and that other companies had attacked NEISA because "a company with a similar name was denied permission to operate in this country and moved its home office to Panama." Asher alleges that NEISA was not domiciled in Louisiana and points out that NEISA's parent company was the Panamanian company that Dunn mentioned in his letter. In that same letter Dunn claims that NEISA was doing business in Texas, Florida, and Mississippi, although Asher alleges that NEISA had been ordered to cease doing business in those states.
The interrogatory and requests for production that are the subject of the motion to compel and of this petition are as follows:
MAW partially answered the interrogatory and requests for production; however, MAW would not produce documentation concerning any assured other than the plaintiffs for whom MAW had placed insurance coverage with NEISA during the years 1987, 1988, and 1989. MAW states that there are approximately 50 such assureds who are not parties to this litigation.
Asher states that it seeks the information on the other assureds to prove its theory that MAW was engaged in a fraudulent scheme or plan to obtain a large portion of the wet marine insurance market in Mobile and Bayou La Batre by using a financially unreliable insurance company and to prove that, to that end, Dunn commonly made false representations in soliciting wet marine insurance business. Asher alleges that MAW enticed boat owners to switch to MAW by offering them lower premiums for coverage supposedly similar to the coverage that they had. NEISA, according to Asher, offered allegedly similar coverage for premiums that were substantially less than other companies' premiums; also, NEISA allegedly offered MAW *736 a dramatically higher commission than that offered by other companies. Asher further contends that at the time MAW entered into its business relationship with NEISA, MAW was aware that NEISA, New England International Surety, Inc., and DynaSpan were considered financially unsound by the national insurance community. Asher alleges that despite that knowledge, MAW proceeded to sell NEISA wet marine insurance not only to the plaintiffs but also to many others. Asher states that, accordingly, the information sought by the interrogatory and the requests for production would support its theory that MAW was engaged in a fraudulent scheme or plan to obtain a large portion of the wet marine insurance market in Mobile and Bayou La Batre.
To support its arguments, Asher cites two cases, Ex parte State Farm Mutual Automobile Insurance Co., 452 So. 2d 861 (Ala.1984), and Ex parte Allstate Insurance Co., 401 So. 2d 749 (Ala.1981). In Ex parte State Farm, Durwood Holt filed an action against State Farm Mutual Automobile Insurance Company, alleging fraud and bad faith arising out of a claim for uninsured motorist benefits by Holt, who was insured by State Farm.
Holt was injured in an automobile accident with an uninsured motorist. He had two policies of insurance with State Farm. The policies contained provisions forbidding stacking of the uninsured motorist benefits. Holt contended that State Farm had a plan or scheme to defraud its policyholders by retaining in its policies invalid provisions that restricted uninsured motorist coverage in contravention of Alabama law. Holt served the following interrogatory on State Farm:
State Farm objected to answering the interrogatory on the ground that it was "burdensome, oppressive, overly broad, not relevant to the issues in this case, [and] encompasse[d] a time limit which [was] unreasonable and [sought] information which [was] not discoverable under Rule 26 of the Alabama Rules of Civil Procedure."
The Court held that evidence of similar fraudulent acts was admissible to prove the alleged fraudulent scheme. Ex parte State Farm at 863; see also, Ex parte Allstate, supra; Cartwright v. Braly, 218 Ala. 49, 117 So. 477 (1928). The Court stated that Holt had alleged that State Farm had engaged in a scheme to defraud its policyholders by retaining a provision in its policies that had been invalid since 1970 and held that, inasmuch as evidence of similar fraudulent acts was admissible to prove an alleged fraudulent scheme, Holt was entitled to discover the information that he sought, but discovery was limited to policyholders in Alabama.
In Ex parte Allstate, supra, the Court reached a similar result. Douglas Goulet was injured in an automobile accident. Goulet's Allstate policy contained an allegedly misleading provision that sought to limit recovery on uninsured motorist insurance, in contravention of Alabama law. Goulet served an interrogatory on Allstate that sought information on the persons who had in the two years prior to the service of the interrogatory been paid $10,000 in uninsured motorist benefits and who, at the time of that payment, had had more than one vehicle listed on the policy as to which the $10,000 payment had been made.
Allstate objected to this interrogatory on the grounds that it was irrelevant and could not possibly lead to the discovery of admissible evidence; that it was overly broad, oppressive, unduly burdensome, extremely expensive, and an abuse of discovery; and that to release the information to plaintiff's counsel without the consent of *737 Allstate's insureds would violate the insureds' privacy interests. The plaintiffs filed a motion to compel Allstate to respond to that interrogatory, and the trial court granted that motion. Allstate filed in this Court a petition for a writ of mandamus, to review the trial judge's order. In upholding the trial court's ruling, the Court stated:
401 So. 2d at 751.
MAW contends that Ex parte McTier, 414 So. 2d 460 (Ala.1982), is factually more similar to the present case than is Ex parte State Farm and Ex parte Allstate. In McTier, McTier's petition for writ of mandamus to direct the trial judge to compel answers to discovery in a suit for fraud was denied. McTier filed an action against Rollins Protective Services, Inc. ("Rollins"), claiming that its sales representative had fraudulently represented to him that he would own the home security protection system that was placed in his house by Rollins. McTier claimed that a Rollins salesman contacted him in an effort to sell him a burglar security system for his house. He contended that the Rollins salesman represented that when he had paid a certain amount he would own the security system and that Rollins would service and repair the equipment for a monthly maintenance fee. The document McTier signed, however, was a lease agreement and not a sales contract. As a proximate result of the alleged misrepresentation by the Rollins salesman, McTier claimed, he had paid $4,000 for the use of a system that he believed he was purchasing.
McTier sought discovery and propounded the following interrogatory to Rollins:
Rollins contended that answering this interrogatory would be unduly burdensome, involving hundreds of customers, four- and five-year-old records, business secrets as to customers' identities, and the customers' rights to privacy and also that the information sought would not reasonably lead to the discovery of admissible evidence. McTier filed a motion to compel answers and contended that the information requested was necessary to prove a common plan or scheme by Rollins to induce customers to sign an agreement such as he had signed.
The trial court held a hearing on the motion to compel and, after argument, denied it. McTier filed a petition for a writ of mandamus. The Court denied the petition, because there had not been a clear abuse of discretion by the trial judge in denying the motion to compel.
Despite MAW's contentions, McTier is not so factually similar to this case that we can decide this case based solely on it. On the other hand, neither Ex parte State Farm nor Ex parte Allstate is sufficiently similar factually to require a ruling favoring Asher, although the reasoning underlying those cases is apposite in this case.
MAW contends that the discovery request exposes it to irreparable harm, because, it says, disclosure of the other insureds' identities exposes MAW to loss of income and further litigation. We do not agree that in this situation the risks that *738 MAW described will subject it to irreparable harm. In this situation, MAW's fear that if it releases the names of the other insureds those insureds may be contacted by the plaintiffs and subsequently change their insurance or that disclosure of the information might lead to further litigation is not a sufficient legal ground to support a finding of irreparable harm.
MAW contends that Asher's discovery requests are cumulative and unnecessary, because, it says, each plaintiff can corroborate the claims of each other. We disagree. The evidence sought in the discovery requests may show the extent of MAW's alleged scheme or plan to garner the market for wet marine insurance. Asher seeks punitive damages under its fraud claims. A claim for punitive damages places the degree and gravity of MAW's allegedly culpable conduct directly in issue. Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989); City Bank of Alabama v. Eskridge, 521 So. 2d 931 (Ala.1988). The information sought by Asher provides evidence concerning the degree and gravity of MAW's allegedly wrongful conduct; it is neither cumulative nor unnecessary.
MAW contends that the discovery request is unduly burdensome. MAW itself states that the information sought would involve approximately 50 insureds. In this multiparty commercial fraud action, the production of 50 files would not appear to be unduly burdensome, especially when compared to the numbers of files the Court ordered produced in Ex parte State Farm and Ex parte Allstate.
Finally, MAW argues that the requested discovery is not designed to lead to the discovery of admissible evidence. We disagree. A large portion of this opinion has discussed the manner in which the information sought might be used by Asher and admitted at trial, and there is no need to repeat that discussion. The information sought by the discovery may, in fact, lead to the discovery of admissible evidence. Ex parte State Farm, supra; Ex parte Allstate, supra; Green Oil Co. v. Hornsby, supra; City Bank of Alabama v. Eskridge, supra.
MAW has shown no valid grounds for the trial court's denial of Asher's motion to compel. Asher's discovery requests are proper under the Alabama Rules of Civil Procedure. The trial court abused its discretion when it denied the motion. The writ is due to be granted.
WRIT GRANTED.
HORNSBY, C.J., and JONES, ALMON, SHORES and ADAMS, JJ., concur. | September 28, 1990 |
a5ee4973-cbb4-47dc-b687-36a3d8831d06 | Etowah County Com'n v. Hayes | 569 So. 2d 397 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 397 (1990)
ETOWAH COUNTY COMMISSION, et al.
v.
James HAYES, et al.
89-1776.
Supreme Court of Alabama.
September 28, 1990.
*398 Mary Ann Stackhouse and Larry H. Keener of Floyd, Keener, Cusimano & Roberts, Gadsden, for appellants.
Donald R. Rhea of Rhea, Boyd & Rhea, Gadsden, for appellees.
James W. Webb and Kendrick E. Webb of Webb, Crumpton, McGregor, Sasser, Davis & Alley, Montgomery, for amicus curiae Ass'n of County Com'ns of Alabama.
PER CURIAM.
This expedited appeal from a partial summary judgment, made final pursuant to Rule 54(b), A.R.Civ.P., presents the issue whether the trial court erred in granting injunctive relief to the sheriff of Etowah County, requiring the Etowah County Commission to reinstate the funding withheld from the Etowah County Sheriff's Department for the remainder of the 1989-90 fiscal year. Because we agree with the trial court that the Commission's withholding of all funds, which effectively closed the operation of the Sheriff's Department, was an arbitrary and capricious act, we affirm the judgment granting injunctive relief to the extent of, and consistent with, this Court's order of September 6, 1990, as modified by our order of September 13, 1990,[1] staying the judgment pending further proceedings on the remaining issues in the circuit court.
By our judgment in this case, "affirmed as modified," we are not to be understood as expressing any opinion on the ultimate merits of the controversy, nor are we limiting the trial court's discretionary prerogatives to lift or further modify the stay order, either temporarily or permanently, subject, of course, to further review by this Court at the instance of any party.
Because competent counsel and amicus curiae have forcefully argued their respective positions regarding the trial court's judgment and its rationale therefor, and because these same issues are still before the trial court for final disposition, we deem it proper to comment briefly upon the appropriate role of the judiciary where, as here, the dispute arises in the context of a confrontation between the other two branches of governmentthe executive and the legislative.
In testing the absolutism of the authority of the legislative branch to appropriate operational funds for the executive branch, the judicial branch of government is constrained not to substitute its judgment for that of the legislature and thus usurp the plenary power of that branch. Finch v. State, 271 Ala. 499, 124 So. 2d 825 (1960). Any encroachment in such matters by the judiciary is limited to adjudication of constitutional challenges, allegations of statutory violations, and charges of conduct so arbitrary and capricious as to contravene lawfully constituted authority. Id.
While we do not reject out of hand the "reasonableness" test, as urged by the sheriff, the application of that test, contrary to the sheriff's contention, does not focus solely on what is reasonable from the viewpoint of the sheriff in the operation of his department. The application of the "reasonableness" test takes into account *399 not only the reasonableness of the sheriff's request for funding of his department, but how that request impacts upon, and relates to, the totality of the County's budget.
Conceivably, the County Commission may receive budget requests from each of the County's executive departments and may agree that none of the requests is "unreasonable" from the standpoint of each department in the performance of its perceived goals; and, yet, the total of such requests may exceed by millions of dollars the total revenues available to fund the County's budget. Thus, while the Commission is legally mandated to follow statutory guidelines and to establish funding priorities accordingly (see, Shelby County Commission v. Smith, 372 So. 2d 1092 (Ala.1979); and Hale v. Randolph County Commission, 423 So. 2d 893 (Ala. Civ.App.1982)), it does not have the burden of proving that any reduction in requested funding is justified because the requests are unreasonable when viewed from the narrow perspective of the operation of that particular department. See Ball v. Escambia County Commission, 439 So. 2d 148 (Ala.1983). See, also, Comment, "State Court Assertion of Power to Determine and Demand Its Own Budget," 120 U.Penn. L.Rev. 1187 (1972).
This is not to say, of course, that the Commission is permitted to exercise unfettered discretion to reject "reasonable" budget requests for adequate performance of essential functions of government. Morgan County Commission v. Powell, 292 Ala. 300, 293 So. 2d 830 (1974).
AFFIRMED AS MODIFIED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1]
"THE STATE OF ALABAMAJUDICIAL DEPARTMENT
"IN THE SUPREME COURT OF ALABAMA
"September 13, 1990
"89-1776
"Etowah County Commission, et al.
"v.
"James Hayes, et al.
"Etowah Circuit Court
"CV-90-776-JSS
"ORDER
"The appellee, James Hayes, having filed a motion to rescind that part of the order of this Court of September 6, 1990, staying injunctive relief granted by the trial court, the same having been submitted and duly considered by the Court, and the Court having considered the preferred claims and the order of their priority as set out by the legislature in subsections (a)(1) and (2) of Ala.Code 1975, § 11-12-15, which include, inter alia, the health, safety, and welfare of prisoners and insane persons, it is considered that the motion should be partially granted.
"IT IS, THEREFORE, ORDERED that that part of the order of this Court of September 6, 1990, staying injunctive relief granted by the trial court, is rescinded only as it applies to subsections (a)(1) and (2) of § 11-12-15, and that the stay is lifted as to those preferred claims that shall be given priority as set out in subsections (a)(1) and (2) of § 11-12-15.
"Maddox, Jones, Almon, Shores, and Houston, JJ., concur." | September 28, 1990 |
2655f80b-e3b6-4497-a3a8-5e0661328278 | Rime-Shatten Dev. Co. v. Birmingham Cable Communications, Inc. | 569 So. 2d 332 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 332 (1990)
RIME-SHATTEN DEVELOPMENT COMPANY
v.
BIRMINGHAM CABLE COMMUNICATIONS, INC.
88-927.
Supreme Court of Alabama.
September 21, 1990.
*333 F.A. Flowers III and John F. De Buys, Jr. of Burr & Forman, Birmingham, for appellant.
Jere F. White, Jr. and Adam K. Peck of Bradley, Arant, Rose & White, Birmingham, for appellee.
KENNEDY, Justice.
This is an appeal from a judgment entered on a jury verdict in favor of the defendant. We affirm.
The issue is whether the trial court, in interpreting a 1982 contract between the parties, properly excluded evidence of certain pre-contract negotiations that took place in connection with a 1977 contract between the parties.
The plaintiff, Rime-Shatten Development Company, is an Alabama general partnership engaged in the business of constructing, leasing, and maintaining apartments. The defendant, Birmingham Cable Communications, Inc. (hereinafter "Birmingham Cable"), provides cable television services to the Birmingham area. Rime-Shatten constructed an apartment complex, Ski Lodge II, and wanted to provide cable television services to the tenants at a bulk rate, as part of the tenant's rent.
In 1977, Mr. Herbert Meisler, a partner in Rime-Shatten, entered into negotiations with Birmingham Cable for the installation and provision of cable television services for the residents of Ski Lodge II. The parties executed a contract on December 20, 1977. At that time, no cable services existed at Ski Lodge II; Birmingham Cable subsequently installed all of the equipment and wiring necessary to provide cable services to the apartments. The contract was to terminate two years after all the apartments in the complex had been available for occupancy for nine months.
The 1977 contract offered Birmingham Cable three options concerning the television equipment and cable wiring once the contract was terminated. Birmingham Cable could leave behind all of the cable television equipment, including the cable wiring installed in the ground and in the walls of each apartment; it could remove certain electronic equipment specified in the contract, but leave the cable wiring in the ground and in the walls; or it could continue to provide cable television services directly to the tenants of Ski Lodge II on an individual basis. The 1977 contract terminated in March 1982. The parties entered into a new contract that became effective immediately upon termination of the 1977 contract. Thus, Birmingham Cable never exercised any of its options under the 1977 contract.
The 1982 contract differed from the 1977 contract. The 1982 contract did not refer to or incorporate the 1977 contract. The 1982 contract provided that upon termination, Birmingham Cable could either remove all "equipment" related to the cable television service or abandon that "equipment" in place. The 1982 contract did not differentiate between the terms "equipment" and "cable wiring" as did the 1977 contract. The 1982 contract also provided that upon termination, if the parties were unable to reach a new agreement, Birmingham Cable could deal directly with the tenants.
In 1984, the parties attempted to negotiate a new contract. A dispute arose over the ownership of the cable wiring. Subsequently, Rime-Shatten placed its own cable wiring in the ground and in each apartment and Rime-Shatten began to supply the tenants of Ski Lodge II with cable services on an individual basis. The original cable wiring installed by Birmingham Cable remained intact. Birmingham Cable also began to furnish cable services to the tenants directly.
Rime-Shatten filed this suit on January 11, 1985, alleging a breach of the 1982 contract. Specifically, Rime-Shatten alleged that Birmingham Cable had breached the 1982 contract by failing either to remove or to abandon "all the equipment." Rime-Shatten contended that the term "equipment" in the 1982 contract did not *334 include cable wiring. Therefore, Rime-Shatten asserted that Birmingham Cable did not own the cable wiring under the 1982 contract but that the cable wiring belonged to Rime-Shatten. Rime-Shatten argued that Birmingham Cable also breached the 1982 contract by using the cable wiring (installed by Birmingham Cable but allegedly owned by Rime-Shatten) to serve the tenants directly without Rime-Shatten's authorization. Rime-Shatten also asserted a fraud claim against Birmingham Cable. Rime-Shatten requested a jury trial on both claims.
The circuit court entered a summary judgment in favor of Birmingham Cable on the fraud claim. The court denied Birmingham Cable's motion for summary judgment on the contract claim.
Before trial, Birmingham Cable filed two motions in limine, requesting, among other things, that the court, in determining ownership of the cable wiring, exclude all evidence of negotiations prior to the execution of the 1977 contract. Birmingham Cable contended that the 1977 contract was unambiguous. Birmingham Cable argued that the facts, circumstances, and negotiations surrounding the making of an unambiguous contract are merged into the written contract, leaving the written contract as evidence of the intent of the parties. Birmingham Cable alleged that both the 1977 contract and the 1982 contract specifically recognized that all of the "equipment" and "cable" wiring that Birmingham Cable had installed at Ski Lodge II belonged to Birmingham Cable.
Mr. Meisler, of Rime-Shatten, stated that in 1977 he objected to the terms of the original draft of the 1977 contract written by Birmingham Cable and that he expressed Rime-Shatten's desire to own the cable wiring at the termination of the contract. At the hearing on the motion in limine, Rime-Shatten argued that its intent to own the cable wiring was evidenced by the terms of the 1977 contract, which distinguished between "electronic equipment" and equipment other than "cable" wiring. Rime-Shatten asserted that representatives of Birmingham Cable had agreed with Mr. Meisler during negotiations that Birmingham Cable owned the "electronic equipment," but that Rime-Shatten owned the "cable" wiring. Rime Shatten asserted that the court should allow evidence of the negotiations prior to the 1977 contract to aid in interpreting the 1982 contract.
After hearing arguments from both parties, the court concluded that the 1982 contract was ambiguous. The ambiguity of the 1982 contract involved language that was included in the 1977 contract but was omitted from the 1982 contract. The court ruled that it would allow the parties to introduce evidence concerning the 1982 contract and any events or conversations occurring before or after the 1982 contract if the evidence was relevant to the intent of the parties regarding the 1982 contract. The court found the 1977 contract to be unambiguous and would not allow the introduction of evidence concerning pre-contract negotiations with respect to the 1977 contract.
The parties then tried their case to a jury. After closing arguments, the trial court submitted the case to the jury with one special interrogatory asking the jury to decide the ownership of the cable wiring at Ski Lodge II. The jury returned a verdict in favor of Birmingham Cable, specifically finding that Birmingham Cable owned the cable wiring at Ski Lodge II. Rime-Shatten appeals.
"The general rule of contract law is that, if a written contract exists, the rights of the parties are controlled by that contract, and parol evidence is not admissible to contradict, vary, add to, or subtract from its terms." Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9, 11 (Ala.1989); citing Tyler v. Equitable Life Assur. Soc. of the United States, 512 So. 2d 55 (Ala.1987); Gunnels v. Jimmerson, 331 So. 2d 247 (Ala. 1976). The rule does allow the introduction of extrinsic evidence in the event of fraud, mistake, or ambiguity. League v. Giffin, 347 So. 2d 1332 (Ala.1977). The case at bar involves the issue of ambiguity in two separate contracts between the parties.
*335 Whether a contract is ambiguous is a question of law. Fouts v. Beall, 518 So. 2d 1236 (Ala.1987); Medical Clinic Bd. of City of Birmingham-Crestwood v. Smelley, 408 So. 2d 1203 (Ala.1981). If the court determines that a contract is ambiguous, extrinsic evidence will be allowed to clarify the contract. Cummings v. Hill, 518 So. 2d 1246 (Ala.1987). However, once a court determines that a contract is unambiguous, parol or extrinsic evidence will not be allowed as to that contract. Generally, once a court determines that no ambiguity exists in the basic contract, it cannot proceed to examine extrinsic evidence. Mass Appraisal Services, Inc. v. Carmichael, 404 So. 2d 666 (Ala.1981).
In the instant case, Birmingham Cable and Rime-Shatten had entered into two separate contracts. The first contract in 1977 was found by the trial court to be unambiguous and was deemed to be the sole expression of intent between the parties. We agree.
The parties agreed that the 1977 contract had no legal effect upon the parties after it terminated in 1982. The 1982 contract was a completely separate contract. The 1982 contract did not incorporate or refer to the 1977 contract, but there were similarities. The trial court found that the 1982 contract did not contain any clear clause discussing the ownership of the cable wiring, as did the 1977 contract. The trial court admitted the 1977 contract into evidence as the only evidence of the parties' intent prior to 1977.
When the parties evidence their agreement by a writing, all oral discussion, negotiations, or agreements had or made prior to the execution of the written contract are merged into the final written agreement. Smith v. Chase Manhattan Corp., 458 F. Supp. 740, 744 (M.D.Ala.1978). As this Court stated in Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So. 2d 431, at 435 (Ala.1979), "once the parties have completed their negotiations and have agreed upon a contract as evidenced by a writing, we are no longer interested in the history of their negotiations for purpose of determining what their agreement might have been had their negotiations proceeded differently." This Court has also stated: "Although a contract can be discharged or modified by subsequent agreement of the parties, no contract can be varied, contradicted, or discharged by an antecedent agreement. Today may control the effect of what happened yesterday, but what happened yesterday cannot change the effect of what happens today." Id.
We agree with the trial court's exclusion of evidence of pre-contract negotiations regarding the 1977 contract. We affirm.
AFFIRMED.
HORNSBY, C.J., and JONES and SHORES, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I concur with the majority opinion. I write specially only because I was the author of Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9 (Ala.1989), a case relied on by Rime-Shatten Development Company in both of its briefs. In Clark, the clause at issue in the second lease that created an ambiguity was identical to the clause in the first lease. Both leases were ambiguous. In the present case, the trial court found that the first contract was unambiguous. To me, Clark is distinguishable from this case. | September 21, 1990 |
e445a6c3-a010-43af-99f4-e635638fa715 | McWilliams v. Union Pacific Resources | 569 So. 2d 702 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 702 (1990)
Howard A. McWILLIAMS and Mary A. McWilliams
v.
UNION PACIFIC RESOURCES COMPANY, et al.
89-97.
Supreme Court of Alabama.
September 28, 1990.
Edward P. Turner, Jr. and Halron W. Turner of Turner, Onderdonk & Kimbrough, Chatom, for appellants.
Broox G. Holmes, Kirk C. Shaw and Broox G. Holmes, Jr. of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Union Pacific Resources Co.
James C. Johnston of Johnston, Hume & Johnston, Mobile, for appellee Kennedy Agriculture & Supply, Inc.
Norton W. Brooker, Jr. and Joseph J. Minus, Jr. of Lyons, Pipes & Cook, Mobile, for appellee Dowell Schlumberger, Inc.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of Union Pacific Resources *703 Company,[1] Dowell Schlumberger, Inc., and Kennedy Agriculture and Supply, Inc., in an action filed by the McWilliamses for damages based on trespass, negligence, wantonness, and strict liability. The trial court entered summary judgment with regard to all counts, holding that the statutory period of limitations had run. Because the applicability of the statute of limitations argument applies to all parties, hereinafter all appellees shall be referred to collectively as "Union Pacific." We reverse and remand.
In 1984, Union Pacific contracted to drill a wildcat oil well on the McWilliamses' property. After drilling was completed, the well was determined to be a "dry hole," and plugging and abandonment operations began in November of that year. Union Pacific contracted with Kennedy Agriculture to pump the drilling fluids from the reserve pit back into the well and contracted with Dowell Schlumberger to plug the well. These operations were completed on November 15, 1984. In the spring of 1986, the McWilliamses noticed that water was seeping from the reclaimed ground in the area overlying the site of the well. In July 1986, this leakage was discovered to be saltwater and, after Union Pacific and the State Oil and Gas Board were notified, Union Pacific was ordered to replug the well and was fined $1,500 for violation of the Board rules and regulations regarding the plugging and abandonment of the well.[2]
As a result of damage to their property, the McWilliamses sued Union Pacific, for damages based on trespass, negligence, wantonness, and strict liability. The complaint was filed in June 1987; the trial judge granted Union Pacific's motion for summary judgment on all counts. With regard to the McWilliamses' trespass claim, the trial judge stated that the McWilliamses' case, at most, gave rise to an action in trespass on the case, which is governed by a two-year statute of limitations, rather than in trespass, which is governed by a six-year statute of limitations.[3] The McWilliamses appeal, contending that their cause of action is subject to the six-year statute of limitations and that, in the alternative, the trial judge erred in determining that the two-year statute began to run on the date that the well was plugged and abandoned, i.e., November 15, 1984. Their argument with regard to the date the statute of limitations began to run is also applicable to their negligence, wantonness, and strict liability claims. Because, for the following reasons, we hold that the applicable statute of limitations began to run later than the November 15, 1984, date found to be applicable by the trial judge, we consider it unnecessary to discuss whether the McWilliamses' claim sounds in trespass or in trespass on the case.
"Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So. 2d 468, 473 (1973).
"The class of cases exemplified by Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925), and West Pratt Coal Co. v. Dorman, expresses the same rule although in a different context, and the basic principle is the same. Thus, there are cases where the act complained of does not itself constitute a legal injury at the time, but plaintiff's injury only comes as result of, and in furtherance and subsequent development of, the act defendant has done. In such cases, the cause of action "accrues,' and the statute of limitation begins to run, `when, and only when, the damages are sustained.' Over sixty years ago, Justice Sayre so expressed it in his opinion for the Court in Kelly, et al. v. Shropshire, 199 Ala. 602, 75 So. 291 (1917).
"In West Pratt Coal plaintiff's upper soil cracked open and settled down several years after mining had taken place beneath the surface. Plaintiff brought suit within one year after the soil settled. In stating that the statute had not run, the Court held that the plaintiff had nothing of which to complain until the enjoyment of the lot was interfered with by the settling of the soil, i.e., no cause of action had `accrued' until that time."
Garrett v. Raytheon Co., 368 So. 2d 516, 518-19 (Ala.1979). (Emphasis added in Garrett.) We find the present case analogous to those cases mentioned in Garrett wherein the damage complained of occurred at a date later than the actions of the defendants. In this case, the McWilliamses' cattle were not destroyed, nor was the vegetation on their land killed, at the time Union Pacific is alleged to have improperly plugged the well in question. In West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909), the plaintiff's damage was sustained years after the incident that caused that damage. Garrett v. Raytheon Co., supra, at 519. In the case sub judice, likewise, the McWilliamses sustained damage to their land at a later date than the plugging of the well. The statutory period of limitations should not be held to begin running as of the plugging of the well, but, rather, on the date when the damage was allegedly sustained by the McWilliamses.
Therefore, the judgment is reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
While I concur with the majority in reversing the trial court's determination that the statutory limitations period began to run as of the plugging of the well, I must comment specially on this Court's direction to the trial court to find that the limitations period should begin to run when the cattle and vegetation died.
*705 As I understand it, there are two lines of cases dealing with the tolling of the statute of limitations where the damages became apparent only sometime after the actual wrong was committed. The first line of cases deals with wrongful acts that cause a legal injury to the plaintiff although that injury is not apparent. Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917); Sellers v. Edwards, 289 Ala. 2, 265 So. 2d 438 (1972); Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.1979).
In each of those cases, not only was the act itself a legal injury to the plaintiff, but the plaintiff failed to file suit within any reasonable time after his injury had occurred. For example, in Raytheon Co., the plaintiff was exposed to radiation at his work place, his last exposure to radiation occurring over 20 years before his injury was diagnosed and he brought suit. In that case, this Court settled the question of the "accrual" of the plaintiff's claim in his radiation-exposure case for purposes of determining when the applicable limitations period begins to run. The Court stated:
Garrett, 368 So. 2d at 519, quoting Kelly v. Shropshire, 199 Ala. 602, 75 So. 291 (1917), as quoted in Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So. 2d 468, 473 (1973) (emphasis added).
Garrett was legally injured as of the date of his last exposure to radiation, when there was a "completed injury," not when he discovered his injury 20 years later.
In contrast, the second line of cases deals with situations where the act itself is not a legal injury; the plaintiff's injury comes only as a result of what the defendant has done. West Pratt Coal Co. v. Dorman, 161 Ala. 389, 49 So. 849 (1909); Corona Coal Co. v. Hendon, 213 Ala. 323, 104 So. 799 (1925); Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So. 2d 468 (1973). In these cases, which I believe are more factually similar to the case at hand, the cause of action accrued and the limitations period began to run when the damages were sustained.
The Dorman case is most similar to this case in facts and legal reasoning. There, the soil cracked open several years after the mining had taken place underneath the surface. The Court cited to the observations of Lord Cranworth in the leading case of Bonomi v. Backhouse, 9 H.L.C. 503, 11 Eng.Rep. 825 (1861), to illustrate when the damages were "sustained". Lord Cranworth stated:
Bonomi, 9 H.L.C. at 512, 11 Eng.Rep. at 828.
When I analogize the issues in Bonomi and Dorman to those of the case at hand, I conclude that the limitations period would not begin to run until "some actual mischief has been done to the upper soil." Dorman, 161 Ala. at 393, 49 So. at 851. In the present case, the "interference with the utility and enjoyment of the superincumbent soil," Dorman, 161 Ala. at 394, 49 So. at 851, did not take place until, at the earliest, the McWilliamses noticed in the spring of 1986 that water was seeping from the ground overlying the site of the well. At the latest, the McWilliamses suffered legal injury in July 1986, when this leakage was discovered to be salt water.
While I joined in the Raytheon Co. case, which expressly refused to adopt the "discovery rule," I feel this case is more similar to the facts and reasoning set forth in Dorman. In essence, Dorman adopted a discovery rule for subterranean real property damage cases. Furthermore, other oil *706 and gas producing states, such as Texas, Arkansas, and Oklahoma, have adopted the discovery rule in similar salt water damage cases. See Bayouth v. Lion Oil Co., 671 S.W.2d 867 (Tex.1984); Peppers Refining Co. v. Spivey, 285 P.2d 228 (Okla.1955); Sunray DX Oil Co. v. Thurman, 238 Ark. 789, 384 S.W.2d 482 (1964).
In Bayouth, the court stated:
671 S.W.2d at 868.
This Court has not had an opportunity to apply the general rules relating to limitations of actions in the context of the escape of deleterious substances from an oil and gas well. Because Alabama has only recently become an oil producing state, I have looked to the law of other oil producing states for guidance. Those courts whose cases I cite have examined their law and have determined that the most logical point at which to begin the running of the limitations period for an action involving permanent injury to realty is when that damage has become apparent and it becomes obvious that the injury is of a permanent character.[1]
The question as to when the statutory limitations period begins to run is generally a question of fact for the jury to determine. Here, there is evidence that the McWilliamses first knew of the water leakage in the spring of 1986; however, there was evidence that the damage became obvious only in July 1986.
The legal justifications for the rule that an action for damage to land accrues, for limitations purposes, upon discovery of the first actionable injury were aptly stated in Bonomi, as quoted by this Court in Dorman:
161 Ala. at 394, 49 So. at 851.
For the above stated reasons, I hereby concur specially with the opinion of this Court.
[1] Union Pacific Resources Company was initially known as Champlin Petroleum Company, but the name was changed on May 12, 1987.
[2] It was determined during the replugging operations that a surface plug had not been placed in the well (or had dissolved) and that, as a result, the surface casing had split. Salt water was found to be leaking from inside the surface casing of the well at the rate of approximately 10 barrels per day.
[3] The one-year statute of limitations for trespass on the case (§ 6-2-39, Ala.Code 1975) was repealed effective January 9, 1985, and that action was transferred to the two-year limitations statute, § 6-2-38. See Act 85-39, Ala. Acts 1984-85.
[1] The courts of Texas, Oklahoma and Arkansas make a distinction between injuries to realty that are temporary and those that are permanent in nature. In those courts, permanent injuries to land give rise to permanent damages, and temporary injuries give rise to temporary damages. Furthermore, they each have a separate point at which the limitations period is tolled.
"An action for permanent damages to land must be brought within two years from the time of discovery of the injury. Article 5526, V.A.T.S. Damages for temporary injuries may be recovered for the two years prior to filing suit.
"The character of an injury as either permanent or temporary is determined by its continuum. Permanent injuries to land result from an activity of such a character and existing under such circumstances that it will be presumed to continue indefinitely; the injury must be constant and continuous, not occasional, intermittent or recurrent. Temporary injuries, however, have been found where the injury is not continuous, but is sporadic and contingent upon some irregular force such as rain. Kraft v. Langford, 565 S.W.2d 223 (Tex. 1978)."
Bayouth v. Lion Oil Co., 671 S.W.2d 867, at 868-69 (Tex.1984).
This distinction, however, is not at issue in this case. | September 28, 1990 |
1cf6503a-30c9-4973-a403-b3d89e6c4440 | Beasley v. Mellon Financial Services Corp. | 569 So. 2d 389 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 389 (1990)
Jayne Y. BEASLEY a/k/a Jayne Beasley Little; and Richard Yarbrough
v.
MELLON FINANCIAL SERVICES CORPORATION and W.B. Scott.
89-743.
Supreme Court of Alabama.
September 28, 1990.
*391 J. Robert Faulk, Prattville, for appellants.
Edward W. Drinkard, Prattville, Robert B. Reneau, Wetumpka, and Alicia J. Putt, Birmingham, for appellees.
HOUSTON, Justice.
Mellon Financial Services Corporation ("Mellon") filed suit against Jayne Y. Beasley, Richard Yarbrough, James J. Powell,[1] and W.B. Scott,[2] alleging that through a mutual mistake of all parties, there was an error in the description of a certain two-acre tract of land that resulted in a house being built on the wrong property. Mellon sought relief under the theory of reformation and the theory of constructive trust. The trial court granted Mellon the relief it sought. Ms. Beasley and Yarbrough appeal. We affirm.
In July 1984, Yarbrough deeded 80 acres of land to Ms. Beasley. Subsequently, Yarbrough obtained a default judgment against Ms. Beasley. To satisfy that judgment, Ms. Beasley sold approximately 40 acres of that land, which had been subdivided into five parcels, to Powell, who gave Ms. Beasley a promissory note and secured the payment of that note by a purchase money mortgage to Ms. Beasley. To secure her debt to Yarbrough, Ms. Beasley then executed to Yarbrough an assignment of that note and that mortgage as collateral. Subsequently, Ms. Beasley and Yarbrough executed a release of parcel 3 from the collateral assignment and from the mortgage. Thereafter, Powell obtained a construction loan from JMW Enterprises, Inc. ("JMW"), and then executed a mortgage to JMW conveying parcel 3 as security for the loan. JMW assigned the mortgage that had been executed for the purpose of financing Powell's house to Mellon. Ultimately, Powell's house was constructed, but not on parcel 3, which was the two-acre tract of land that Yarbrough had released from the collateral assignment, and on which Mellon held the mortgage. Rather, Powell's house was constructed on an adjacent two-acre tract of land that was located in parcel 5.
Powell never made any payments to Mellon; therefore, Mellon foreclosed on parcel 3, the lot on which the parties intended Powell's house to be constructed. In addition, Powell became delinquent in his payments to Ms. Beasley. As a result of Powell's failure to pay Ms. Beasley, she accepted from Powell a deed in lieu of foreclosure on the two-acre tract in parcel 5, on which the house had actually been constructed. Prior to accepting the deed in lieu of foreclosure, Ms. Beasley had discovered that Powell's house had not been constructed on parcel 3, but on the adjacent two-acre tract in parcel 5.
The trial court heard ore tenus evidence and made detailed findings of fact. Those findings of fact pertinent to this appeal are as follows:
Under the ore tenus standard of review, we must accept as true the facts found by the trial court if there is substantial evidence to support the trial court's findings. See American Family Care, Inc. v. Irwin, [Ms. 89-828, September 14, 1990] ___ So.2d ___ (Ala.1990).
The issues for our review are whether the trial court was plainly and palpably erroneous in holding that Ms. Beasley, by accepting a deed in lieu of foreclosure, assumed the same position as Powell in relation to Mellon; whether the trial court was plainly and palpably erroneous in holding that Mellon was entitled to have the documents in question reformed; and whether the trial court was plainly and palpably erroneous in imposing a constructive trust on the property in question.
It is well established that equity is a system of remedies that evolved to redress wrongs that were not recognized by or adequately righted by common law. The trial court is authorized in equity proceedings "to mold [its decree]" so as to adjust the equities of all the parties and to meet the obvious necessities of each situation. BBC Investment Co. v. Ginsberg, 280 Ala. 148, 152, 190 So. 2d 702, 705 (1966).
A deed in lieu of foreclosure is any instrument, however denominated, whereby a mortgagor transfers to a mortgagee the mortgagor's rights in the mortgaged property. See Ala.Code 1975, § 35-10-50(1). Such an instrument transfers to the mortgagee all right, title, and interest of the mortgagor in the mortgaged property, including, but not limited to, all rights of redemption, statutory or equitable, unless expressly otherwise provided therein. See Ala.Code 1975, § 35-10-51(1). A deed in lieu of foreclosure does not affect the rights or interests of any person or entity other than the mortgagor in the mortgaged property. See Ala.Code 1975, § 35-10-51(5).
In the instant case, based on the above-cited statutes, when Ms. Beasley accepted from Powell the deed in lieu of foreclosure to all but the released parcel 3 (which previously had been foreclosed by Mellon), Powell transferred to Ms. Beasley all right, title, and interest that he possessed in the mortgaged property. Therefore, whatever cause of action Mellon would have had against Powell prior to the execution of the deed in lieu of foreclosure, afterward Mellon would have had against Ms. Beasley. Thus, the trial court, seeking to do equity, granted Mellon's request to reform the descriptions in the documents in question so as to reflect the intent of the parties.
Alabama Code 1975, § 35-4-153, provides that any person may sue to reform a deed, mortgage, or other conveyance that is based on fraud or mutual mistake. In the instant case, there is no allegation of fraud; therefore, the reformation must have been based upon mutuality of mistake between the parties. Where the reformation is based on mistake, the existence of a valid agreement to which the instrument can be made to conform is essential. The trial court cannot make the instrument express a new contract for the parties. Rather, the principle on which reformation is based is clearif the intent of the parties was to convey the property actually described, but the parties were induced to enter into the agreement by a mistake as to the extent or nature of the contract, there can be no reformation; however, "if the intent was to convey the property as it was known to exist, but the mistake was in the description, reformation is proper." McClintock on Equity, *394 Ch. 8, § 95 at 258 (1948). (Emphasis added.) Such an error establishes mutuality of mistake, and, when one seeks reformation it is immaterial who employed the draftsman. See Clemons v. Mallett, 445 So. 2d 276 (Ala.1984). Where the sole ground for reformation is mistake, the mistake must be mutual as to all of the parties, but only in the sense that they must all have agreed to the same terms and have mistakenly assumed that those terms were properly expressed in the instrument. Where there are several parties to the transaction, all parties must have intended the same agreement or else there can be no reformation. Whenever there has been a mistake in a deed so that it fails to express what the parties intended, a court of equity may, as between the parties, reform it in accordance with the transaction as it was actually agreed upon. See City of Oneonta v. Sawyer, 244 Ala. 25, 12 So. 2d 82 (1943).
In order to reform a deed pursuant to the statute so as to express the intentions of the parties thereto, the party seeking reformation has the burden of proving with clear, convincing, and satisfactory evidence that the intention he seeks to substitute was that of both parties. Touchstone v. Peterson, 443 So. 2d 1219 (Ala.1983). Reformation will be allowed not only as against the original parties, but also against those claiming under them in privity, such as representatives, heirs or devisees, legatees, assignees, voluntary grantees or judgment creditors, or purchasers from them with notice of the facts. See Clemons v. Mallett, supra; see, also, Thompson on Real Property, § 4675 (1958).
In the instant case, the mistake was in the description of the two-acre tract on which Powell's house was constructed. The trial court found that Mellon had proved with clear, convincing, and satisfactory evidence that the documents in question did not express the intentions of the parties and that it would not be prejudicial to Ms. Beasley or Yarbrough to reform those documents. After a thorough review of the record, we conclude that there was sufficient evidence to support the trial court's finding that the intent of the parties (both of Ms. Beasley as the original party and of Yarbrough as the assignee) was that the two-acre parcel on which Powell's house was to be constructed (parcel 3) was to be released from Ms. Beasley's mortgage so that Powell would own it free and clear so as to induce JMW to build his house; that there was no significant difference between any two particular two-acre tracts contained within the whole parcel; and that through a mutual mistake, the parcel released from the mortgage and the parcel on which Powell's house was constructed were not the same. In addition, because Ms. Beasley was aware that Powell's house had not been built on the two-acre tract previously released from the mortgage prior to her accepting the deed in lieu of foreclosure and because Ms. Beasley admitted that she accepted that deed without acquiring any rights in the property for value, the trial court could have inferred from that evidence that "equity requires that the reformation requested by Mellon be granted." Therefore, we hold that the trial court's reformation of the documents was not plainly and palpably erroneous.
The trial court further found that equity would be served by imposing a constructive trust on the property in question. A constructive trust is a remedy created to prevent unjust enrichment. A constructive trust "`bears much the same relation to an express trust that a quasi contractual obligation bears to a contract.... [A]n obligation is imposed not because of the intention of the parties but to prevent unjust enrichment.'" See American Family Care, Inc., supra, quoting 3 Scott on Trusts, § 462.1 (1939). Equity may impose a constructive trust on property in favor of one beneficially entitled thereto when another holds title to the property by fraud, commission of wrong, abuse of a confidential relationship, or any other form of unconscionable conduct. See American Family Care, Inc., supra, citing Keeton, Law on Trusts, 210 (5th ed. 1949); 4 Pomeroy Equity Jurisprudence, § 1053 (5th ed. 1941); and Walsh on Equity, § 106 (1930). Equity may also impose a constructive trust on property in favor of one beneficially *395 entitled thereto against a person who in any way, against the rules of equity and good conscience, either has obtained or holds and enjoys legal title to property that in justice that person ought not to hold and enjoy. See American Family Care, Inc., supra, citing 3 Scott on Trusts § 462.1 (1939) and Restatement of Restitution § 160, Comment a (1937).
Beatty v. Guggenheim Exploration Co., 225 N.Y. 380, 122 N.E. 378, 380 (1919). See, also, American Family Care, Inc., supra.
In the instant case, the trial court wrote, regarding the evidence:
After a thorough review of the record, we find sufficient evidence from which the trial court could have made those inferences; therefore, we hold that the trial court's imposition of a constructive trust on the property in question was not plainly and palpably erroneous.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ADAMS and STEAGALL, JJ., concur.
[1] Because Powell never appeared, the trial court entered a default judgment against him. Therefore, he is not a party to this appeal.
[2] Scott, a registered surveyor, admittedly prepared a survey that located the existence of Powell's house on the wrong two-acre lot. Because of our disposition of this case, we pretermit any discussion of Mellon's cause of action against Scott. | September 28, 1990 |
b1503633-c041-4e92-a3a2-3d2bf647f012 | Ex Parte Stem | 571 So. 2d 1112 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1112 (1990)
Ex parte William M. STEM, Jr.
(Re Grady W. BRADEN v. William M. STEM, Jr.)
89-506.
Supreme Court of Alabama.
September 28, 1990.
D. Edward Starnes III of Lanier, Ford, Shaver & Payne, Huntsville, for petitioner.
R. Wayne Wolfe of Wolfe, Jones & Boswell, Huntsville, for respondent.
KENNEDY, Justice.
William Stem filed an action against Gary Braden, seeking to rescind a contract for the sale of an automobile and to obtain the return of the purchase price plus interest. The trial court granted Stem that relief, but the Court of Civil Appeals reversed the trial court's judgment.
On February 26, 1987, Stem purchased a used automobile from Braden for $6,600. Braden indicated to Stem that, to the best of his knowledge, the car had not been wrecked and that the car was in good condition. Less than a week after purchasing the car, Stem discovered a disconnected plug that, when it was connected, caused the oil sensor warning light on the dashboard to glow. When Stem had the automobile examined because of the disconnected plug, the mechanics who examined the automobile discovered problems with the automobile that Stem did not realize existed. Among other problems, the mechanics discovered that the automobile was composed of the front end of a 1979 BMW and the rear end of a 1975 BMW. On March 10, 1987, Stem sent Braden a letter informing *1113 him that Stem refused the automobile and that he intended to rescind the sale. Further investigation revealed that the front half of the automobile actually had been driven 170,000 miles; Stem thought this automobile had 70,000 miles.
The trial court, after hearing ore tenus evidence, ordered Braden to pay Stem $6,600, an amount equal to the purchase price, plus interest of $726. The trial court wrote:
The Court of Civil Appeals reversed the trial court's judgment. That court stated that Stem, after he sent the letter refusing the automobile and attempting to rescind the sale, drove the automobile for 7 months and nearly 9,000 miles before commencing this action. The court then held that that use constituted an "acceptance" under Ala. Code 1975, § 7-2-606, which precluded Stem from receiving the relief the trial court granted:
Braden v. Stem, 571 So. 2d 1110 (Ala.Civ. App.1989).
Because there are numerous grounds for rescission of a contract, we do not agree that if Stem accepted the automobile then rescission necessarily was "not available," as the Court of Civil Appeals implies. That court, however, did address whether Stem revoked his acceptance of the automobile, which is the starting point for a proper analysis of this case.
Revocation of acceptance of goods is addressed by Ala.Code 1975, § 7-2-608, which provides:
The Official Comments to that provision provide additional information concerning the provision:
The record would support a finding by the trial court that Stem revoked his acceptance of the automobile pursuant to § 7-2-608. The trial court could properly have determined that Stem's acceptance of the automobile had been reasonably induced by Braden's assurances. The record indicates that the vehicle had been previously involved in at least one accident, that the vehicle was composed of two welded-together halves of other vehicles, that the speedometer had been disconnected for three and one-half months while Braden owned the car, that the vehicle had 100,000 more miles on its front half than Stem thought it had, and that the mileage on the back half was not known for certain. Although the trial court permissibly could have considered Stem's use of the car as evidence that its value was not substantially impaired, Dickson v. U-J Chevrolet Co., 454 So. 2d 964, 967 (Ala.1984), it was not compelled to do so. Accordingly, the trial court could have determined that the automobile's nonconformities substantially impaired its value to Stem. There is no substantial dispute either that Stem's revocation occurred within a reasonable time or that Stem properly notified Braden, and the trial court could have found that Stem revoked his acceptance within a reasonable time and that he met the notice requirements of § 7-2-608.
When Stem revoked his acceptance, he had the same rights and duties with regard to the automobile that he would have had had he rejected it. § 7-2-608(3). Section 7-2-602 addresses the manner and effect of rejection, and § 7-2-602(2)(a) provides that "after rejection any exercise of ownership by the buyer with respect to any commercial unit is wrongful as against the seller." Accordingly, although Stem revoked his acceptance, his continued use of the automobile was "wrongful" against Braden. There is no definition of "wrongful" as it is used in § 7-2-602(2)(a), either in statutes or in Alabama case law, to explain the consequences of Stem's continued use of the vehicle.
The Court of Civil Appeals held that Stem's use of the vehicle constituted "acceptance"; however, the opinion did not state that Stem's use constituted a "second acceptance" after revocation, or a "waiver of revocation" resulting in an acceptance, or that the record would not support a finding of revocation and that the use of the automobile constituted acceptance. Even if any of those holdings would be proper, the opinion in no way addresses what is "wrongful" under § 7-2-602(2)(a). Accordingly, the opinion assumes that the only way to address Stem's continued use of the automobile is in terms of whether he accepted ownership of the automobile.
Sections 7-2-602 and 7-2-606 through -608 are derived from the Uniform Commercial Code and, accordingly, many states have enacted similar provisions into statutory law. A review of the case law construing similar provisions indicates that the Court of Civil Appeals' treatment of the issue of Stem's use of the automobile only in terms of acceptance of the automobile is inappropriately simple. Many cases involve extensive use of automobiles and motor homes after revocation; the cases emphasize the practical consideration that an individual who buys an automobile or a motor home may very well be unable, without extraordinary financial difficulty, to tender the automobile or motor home and do without it until the litigation concerning it is completed. For example, in Johnson v. General Motors Corp., 233 Kan. 1044, 668 P.2d 139 (1983), the buyers of a truck drove that vehicle 14,619 miles after revocation of acceptance, and the Kansas Supreme Court held that that use of the vehicle was not an acceptance. For additional examples, see Jorgenson v. Presnall, 274 Or. 285, 545 P.2d 1382 (1976); Stroh v. American Recreation & Mobile Home *1115 Corp., 35 Colo.App. 196, 530 P.2d 989 (1975); Johannsen v. Minnesota Valley Ford Tractor Co., 304 N.W.2d 654 (Minn. 1981). These courts, construing provisions similar to § 7-2-602, held that continued use after revocation was "wrongful" but did not constitute acceptance.
With uniformity, the courts have held that the "wrongful" use entitles the seller to prove the reasonable value of the buyer's use and to recover that amount as a setoff, and many courts have awarded setoffs in circumstances similar to those of the present case. Johnson v. General Motors Corp., supra; Stroh v. American Recreation & Mobile Home Corp., supra; Johannsen v. Minnesota Valley Ford Tractor Co., supra; Jorgenson v. Presnall, supra; Gawlick v. American Builders Supply, Inc., 86 N.M. 77, 519 P.2d 313 (1974); Lawrence v. Modern Mobile Homes, Inc., 562 S.W.2d 729 (Mo.App. 1978); Moore v. Howard Pontiac-American, Inc., 492 S.W.2d 227 (Tenn.App.1972).
The Colorado Court of Appeals in Stroh, supra, used the following rationale to explain the setoff:
The ruling of the Colorado court is sound, and we accept its rationale. Additionally, we note that if Stem had exercised any of his options available under Alabama's commercial code concerning storing or returning the vehicle, he would have been put in the position of doing without a vehicle for transporting his child, which was one of the primary purposes for which he bought the vehicle, until trial of this case or else he would have been required to purchase or lease an additional suitable vehicle. Under these circumstances Stem's continued use of the automobile was not an act of continued use that constituted an acceptance of ownership after revocation. Johnson v. General Motors Corp., 233 Kan. at 1049, 668 P.2d at 143.
The judgment of the Court of Civil Appeals is due to be reversed and the cause remanded. The trial court is directed to determine any appropriate setoff in a manner consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
STEAGALL, J., concurs in the result. | September 28, 1990 |
53e60280-3d6d-4c4a-b06e-30c7db5c19ac | Sundance Marina, Inc. v. Reach | 567 So. 2d 1322 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1322 (1990)
SUNDANCE MARINA, INC.
v.
Harold REACH and Deborah Taft-Reach.
89-244.
Supreme Court of Alabama.
September 14, 1990.
Hugh E. Holladay of Hereford, Blair, Holladay and Parsons, Pell City, for appellant.
Charles E. Robinson of Church, Trussell & Robinson, Pell City, for appellees.
HOUSTON, Justice.
Sundance Marina, Inc. ("Sundance"), sued Harold Reach and Deborah Taft-Reach to recover possession of certain property that the Reaches occupied under an agreement between the parties dated December 22, 1982, and to recover $2,500, plus interest and attorney fees, for alleged past due rents, taxes, and water service. On March 23, 1989, the trial court, hearing ore tenus testimony, entered the following order:
On May 30, 1989, because the Reaches had failed to make any payments, Sundance filed the following motion to enforce the order:
On June 8, 1989, the trial court granted the motion to enforce. Thereafter, the Reaches filed a motion to stay the order to vacate. On June 29, 1989, the trial court, hearing ore tenus testimony, granted the Reaches' motion to stay the order to vacate, stating that it was treating that motion as a Rule 60(b), Ala.R.Civ.P., motion. In doing so, the trial court entered the following order:
Sundance appeals.
Under the ore tenus rule, the trial court's judgment, where supported by the evidence, is presumed correct and should be reversed only if the judgment is found to be plainly and palpably wrong, after a consideration of all the evidence and after drawing all inferences that can logically be drawn from the evidence. See American Casualty Co. v. Wright, 554 So. 2d 1015 (Ala.1989); City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala.1989); King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala. 1987); Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986); see, also, Meeks v. Hill, 557 So. 2d 1238 (Ala.1990). Where a trial court does not make specific findings of fact concerning an issue, we will assume that the trial court made those findings necessary to support its judgment, unless such findings are clearly erroneous. Robinson v. Hamilton, supra.
The issue before us is whether the trial court's finding that the Reaches' failure to pay the sums of monies owed as called for under the original order was due to excusable neglect was plainly and palpably erroneous.
The trial court heard the following evidence:
The Reaches testified that pursuant to the trial court's original order of March 23, 1989, they planned to pay the monies due, including the monthly rental payments for the months of April and May, to the clerk of the court prior to the expiration of the 60-day period. However, they said, 3 or 4 days prior to the expiration of that period, they learned that, within 10 days from the date that the trial court entered its original order, Sundance had cashed certain of their checks that it had been holding since 1986 and that it had stated under oath that it did not intend to cash. The evidence reveals that Sundance at no time notified the Reaches or their attorney that it was negotiating those checks. The Reaches further testified that, because Sundance had negotiated those checks, they were confused as to the amount they still owed. Because of their confusion, the Reaches said, they tried to contact their attorney but were at first unsuccessful due to their attorney's busy court schedule and the Memorial Day weekend. They said they finally succeeded in reaching their attorney on June 2, 1989, and that, based on his advice, they deducted the amount of the checks that Sundance had negotiated and then mailed the balance *1325 due to the clerk of the court. The clerk returned the Reaches' checks, informing them that personal checks were unacceptable and that funds had to be in the form of money orders or cashier's checks. Consequently, on June 12, 1989, the Reaches submitted cashier's checks to the clerk.
Based on this evidence, the trial court treated the Reaches' motion to stay the order to vacate as a Rule 60(b), Ala.R. Civ.P., motion and found that the Reaches' failure to timely pay the monies owed within the 60-day period pursuant to the original order was a result of confusion over the additional amount to be paid, and that that confusion was due to Sundance's negotiation of certain checks subsequent to the trial court's order.
The nomenclature of a motion is not controlling; see Ex parte Hartford Ins. Co., 394 So. 2d 933 (Ala.1981). The label that one places on a motion is of little importance. See Rebel Oil Co. v. Pike, 473 So. 2d 529 (Ala.Civ.App.1985). Although the Reaches did not label their motion as a Rule 60(b) motion, they definitely asserted in the body of the motion, and as support for the motion, that they were seeking relief from the original judgment by way of Rule 60(b), and they stated a proper ground for Rule 60(b) relief. Thus, the trial court correctly treated the motion as a Rule 60(b) motion.
This Court has written:
Ex parte Dowling, 477 So. 2d 400, 402-03 (Ala.1985). (Citations omitted.)
After carefully reviewing the record and the briefs, we conclude that the trial court could have found from the evidence presented that, due to Sundance's actions in cashing certain checks previously given to Sundance by the Reaches, the Reaches were confused as to the amount they should pay in accordance with the original order, and could have concluded that the Reaches should be granted additional time to determine the exact amount of money they owed under the trial court's order of March 23, 1989. Thus, the trial court did not abuse its discretion in granting Sundance's Rule 60(b) motion.
We note Sundance's argument concerning the additional time that the trial court gave the Reaches in which to make the monthly rental payments for April and May, which payments, Sundance contends, the Reaches were required to pay on the first of each month in accordance with the parties' original agreement and with the trial court's original order. Because the trial court, in the instant case, did not specifically address the issue of the monthly rental payments for April and May, we assume that it made those findings necessary to support its judgment. See Robinson v. Hamilton, supra.
The order granting the Rule 60(b) motion is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | September 14, 1990 |
e5dc3ae9-ec5c-473a-9133-2a67fd2eec85 | Ex Parte State of Highway Dept. | 572 So. 2d 389 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 389 (1990)
Ex parte STATE of Alabama HIGHWAY DEPARTMENT.
(Re Shirley Ann BOONE, et al. v. SOUTHERN RAILWAY COMPANY, et al.)
89-1101.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied December 7, 1990.
Jack F. Norton, Chief Counsel, and Jerry L. Weidler and Janie Baker Clarke, for Alabama Highway Dept.
Leah O. Taylor of Taylor & Roberson, Birmingham, for respondent Shirley Ann Boone, et al.
Crawford S. McGivaren, Jr. and Steve A. Tucker of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for respondents Southern Ry. Co., Norfolk Southern Corp. and Alabama Great Southern R. Co.
PER CURIAM.
The petition for a writ of mandamus is denied on the condition that the production of the requested records be made in camera, so that the trial court can determine which of the records, if any, are germane to any matters upon which the plaintiffs might pursue further discovery of evidence that may be admissible at trial.
WRIT DENIED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
I would grant the writ in this case, because I do not believe that the records sought are properly discoverable.
The writ of mandamus sought by the State of Alabama Highway Department's petition should be issued, because 23 U.S.C. § 409 provides a privilege for the documents described in § 409 and that privilege is a complete bar to the admissibility or discovery of such documents. In addition, the purpose behind 23 U.S.C. § 409 requires the documents described in § 409 to be protected from disclosure. Section 409 prohibits both the admissibility and the discovery of all documents described in the statute. This conclusion is mandated by the language of the statute itself, by opinions interpreting the statute, and by a comparison with other similar statutes and decisions interpreting those statutes.
Although I recognize that material can be discovered if it will lead to the discovery of admissible evidence, it is clear that privileged information is not subject to discovery. Because I believe that the information sought to be discovered here is privileged, I would grant the Alabama Highway Department's petition for writ of mandamus; consequently, I must respectfully dissent.
HOUSTON and STEAGALL, JJ., concur. | September 21, 1990 |
2dfce253-3929-467e-ab35-c5c7a289ff6d | Ex Parte Civil Service Bd. | 571 So. 2d 1125 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1125 (1990)
Ex parte CIVIL SERVICE BOARD OF the CITY OF MUSCLE SHOALS, Alabama.
(Re Charles Thomas BERRYMAN v. CIVIL SERVICE BOARD OF the CITY OF MUSCLE SHOALS, Alabama).
89-1324.
Supreme Court of Alabama.
October 19, 1990.
David R. Boyd and W. Joseph McCorkle, Jr. of Balch & Bingham, Montgomery, for petitioner.
David Cromwell Johnson, Birmingham, and William R. Hovater, Tuscumbia, for respondent.
*1126 Prior report: Ala.Civ.App., 571 So. 2d 1122.
HOUSTON, Justice.
In quashing this writ, we must emphasize that the Civil Service Act creating the Civil Service Board of the City of Muscle Shoals, Alabama, does not mandate pre-hearing discovery, but that such discovery upon request of the parties is a matter of discretion with the Board, subject to judicial review.
WRIT QUASHED AS IMPROVIDENTLY GRANTED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | October 19, 1990 |
5bc002b1-42fe-4b6b-8dd4-dbc7b605390d | Ex Parte Head | 572 So. 2d 1276 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 1276 (1990)
Ex parte Nelson H. HEAD, Beverly P. Head, Jr., James R. Forman, Jr., and Thomas L. Howard.
(Re Nelson H. HEAD, et al. v. THISTLE CONSTRUCTION COMPANY, INC.)
89-689.
Supreme Court of Alabama.
September 28, 1990.
William H. Mills and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for petitioners.
Rodney E. Nolen of Sirote & Permutt, Birmingham, for respondent.
*1277 JONES, Justice.
We granted the defendant's petition for a writ of certiorari in order to address their contention that the Court of Civil Appeals' decision affirming the plaintiff's summary judgment conflicts with prior decisions of this Court. After a careful study of the record and of the arguments of the parties, we hold that the Court of Civil Appeals erred in affirming the judgment of the trial court; therefore, we reverse and remand.
Thistle Construction Company, Inc. ("Thistle"), sued Costa & Head (Atrium), Ltd., Costa & Head (Birmingham One), Ltd., Costa & Head Land Company, Pedro C. Costa, and Nelson H. Head for $5,574.70 owed on a contract and on an open account. By subsequent amendment, Thistle added as parties defendant Beverly P. Head, Jr., James R. Forman, Jr., and Thomas L. Howard, Jr. Thistle moved for summary judgment against individual defendants Nelson Head, Beverly Head, Forman, and Howard, and based the motion on the complaint and on the affidavit of its board chairman, E.K. Strauss.[1]
Strauss's original affidavit referenced an "Exhibit `A'"a contract between the parties; however, the contract was not attached to the affidavit. Thistle later filed Strauss's amended affidavit, signed by Thistle's lawyer, which stated that the contract had been "inadvertently omitted" from the original affidavit. A copy of the contract was attached to the amended affidavit.
The defendants moved to strike portions of the two affidavits, alleging (1) that the contract, referred to as the basis for the complaint, was not attached to the original affidavit as required by A.R.Civ.P. Rule 56(e); (2) that a paragraph in the original affidavit regarding the relationships among the defendants was not made upon the personal knowledge of the affiant, but was made upon her "best information and belief," did not set forth facts that would be admissible in evidence, and did not affirmatively show that the affiant was competent to testify to the matters contained in that paragraph, contrary to the requirements of Rule 56(e); and (3) that the contract supplied by the later "amended affidavit" was not sworn to or certified as required by Rule 56(e).
In response to the defendants' motion to strike, Thistle filed another supplemental affidavit, which contained, as attachments in support of Strauss's assertions regarding the relationships among the defendants, copies of two previous appellate court decisions involving some of these parties. The defendants again moved to strike, again asserting a failure to comply with the requirements of Rule 56(e).
Thistle filed another supplemental affidavit, signed by Strauss and accompanied by another copy of the contract. At the same time, Thistle filed a second affidavit of Strauss, in which she indicated how she had knowledge of the specific facts she had testified to in her previous affidavit and amendments:
The opinion of the Court of Civil Appeals, in describing the next phase of the proceedings below, reads:
The Court of Civil Appeals affirmed the summary judgment in favor of Thistle, and we granted the defendants' petition for the writ of certiorari in order to address the alleged impropriety of summary judgment for Thistle based on the affidavits submitted in support of Thistle's motion for summary judgment.
The portion of the Court of Civil Appeals' opinion with which we are here concerned reads:
Head v. Thistle Construction Co., 572 So. 2d 1273 (Ala.Civ.App.1989).
The significance of the defendants' argument is best understood by first noting Thistle's argument in support of the judgments of the trial court and the Court of Civil Appeals: The defendants did not, at any time, offer any affirmative statement of fact to negate the assertions made by Thistle in its motion for summary judgment and to show the existence of a triable issue of fact; therefore, Thistle says, its summary judgment was proper. Thus, if we hold that the totality of the affidavits and attachments submitted by Thistle in support of its motion for summary judgment effected a compliance with Rule 56(e), and if the substance of such compliance entitles the movant to a judgment as a matter of law, then, concomitantly, we must also hold that Thistle's assertions put upon the defendants the burden of proving the existence of a material issue of fact and that Thistle's assertions, uncontradicted by *1279 the defendants, must be taken as true. See Garrigan v. Hinton Beef & Provision Co., 425 So. 2d 1091 (Ala.1983).
If, however, the defendants are correct in their argument that the documents offered by Thistle in support of its motion for summary judgment did not comply with the requirements of Rule 56(e), or, in the alternative, if they did comply but such compliance did not entitle Thistle to a judgment as a matter of law, then we must hold that the trial court erred in entering the summary judgment based on these documents.
Rule 56(e) provides:
The disposition of the issues presented by this petition is best accomplished by analyzing the pertinent requirements for a valid affidavit in support of or in opposition to a motion for summary judgment in the context of the facts presented by this case.
Rule 56(e) "plainly requires (the word `shall' being mandatory) that an affidavit state matters personally known to the affiant." Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949). See, also, Wright, Miller, and Kane, Federal Practice & Procedure: Civil 2d § 2738, p. 467 (1983).
The defendants argue that because, in her first affidavit, Strauss prefaced her statements regarding the relationships among the defendants with the words "It is my best information and belief," this evidence was not based upon personal knowledge and did not comply with Rule 56(e). This Court has consistently held that a conclusory statement based upon the affiant's "information and belief," does not comply with Rule 56(e)'s requirement of "personal knowledge." See, e.g., Black v. Reynolds, 528 So. 2d 848 (Ala.1988); and Autry v. Blue Cross & Blue Shield of Alabama, 481 So. 2d 345 (Ala.1985).
Osborn v. Johns, 468 So. 2d 103 (Ala.1985).
In a subsequent amendment to her affidavit, however, Strauss stated that she had personally reviewed the records of the probate court. She then described the relationships among the defendants according to what she said was her personal knowledge obtained from a study of the probate *1280 court records, thus purporting to remove the defect in her affidavit testimony regarding the defendants' relationships.
The defendants maintain that, in addition to violating the "personal knowledge" requirement, Strauss's testimony regarding the defendants' relationships was not admissible because certified copies of the probate records referenced were not attached to the amended affidavit. Further, say the defendants, Thistle's complaint (including its demand for damages) was based upon a contract executed by the defendants, but, they point out, there was no certified or sworn copy of the contract attached to Strauss's affidavit in support of Thistle's claims based on the contract.
As observed earlier, the requirements of Rule 56(e) are mandatory. Jameson v. Jameson, supra; and Oliver v. Brock, 342 So. 2d 1 (Ala.1976). Further, when an affiant makes statements such as those made by Strauss and by Thistle's lawyer, those assertions must be supported by "admissible evidence, such as actual documents or affidavits of witnesses. Hearsay cannot create an issue of fact." Black v. Reynolds, supra, 528 So. 2d at 849.
Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 505 F. Supp. 1125, 1139 (E.D.Pa. 1980), modified, 723 F.2d 238 (3d Cir.1983).
Thistle attempted to remedy the absence of a copy of the contract from Strauss's first affidavit by having its lawyer file an amendment that explained the inadvertence in omitting the contract and that supplied the trial court with a copy of the contract. This copy, say the defendants, was neither certified nor sworn to. Furthermore, they say, the amendment containing Strauss's testimony, supposedly based on personal knowledge gained from records of the probate court was not supported by a copy of those records, certified or otherwise.
The Court of Civil Appeals, in addressing the defendants' allegations that these deficiencies rendered the affidavits void under Rule 56(e), relied on the case of Real Coal, Inc. v. Thompson Tractor Co., 379 So. 2d 1249 (Ala.1980). In that case, the plaintiff sued to recover money owed on open account and on equipment rental agreements. The plaintiff's motion for summary judgment was supported by the affidavit of its vice president for finance. In his affidavit, the vice president referred to certain exhibits (invoice dates, invoice numbers, invoice amounts, and copies of guaranties executed by one of the individual defendants for the corporate defendants' debts) and then "vouched for" these documents as reflecting the sums owed by the defendants. The Real Coal Court held:
Real Coal, supra, at 379 So. 2d 1250.
The Real Coal Court went on to hold that although the exhibits in support of the vice president's affidavit were not of the "self proving" type (see, e.g., Ala.Code 1975, § 12-21-111), "nevertheless, on motion for summary judgment they could be *1281 considered together with [the vice president's] sworn statement to determine their admissibility." Id.
Strauss's affidavit statements regarding the contract upon which Thistle's action is based are similar to those of the vice president in Real Coal:
Applying the holding in Real Coal to these facts, we hold that the later-supplied copy of the contract between Thistle and Costa & Head (Atrium), Ltd., considered with Strauss's affidavit testimony, was admissible evidence in support of Thistle's motion for summary judgment, as required by Rule 56(e).
However, Strauss's testimony regarding the relationships among the defendants, purportedly made "from personal knowledge" gained from the records of the probate court, does not comply with the requirements of Rule 56(e) and, therefore, is inadmissible in support of Thistle's motion for summary judgment. Despite Rule 56(e)'s mandate that affidavit testimony "set forth such facts as would be admissible in evidence," no copies of the probate records from which Strauss gained her "personal knowledge" were provided with Strauss's affidavit in support of her allegations regarding the defendants. The total absence of copies of the probate records referred to by Strauss rendered inadmissible her statements based on these documents. Osborn v. Johns, supra.
This is the only provision in Rule 56(e) that allows the trial court to exercise discretion in considering affidavit testimony in support of or in opposition to a motion for summary judgment.
Gordon v. Watson, 622 F.2d 120 (5th Cir. 1980).
Applying this provision of Rule 56(e) to the facts of the instant case, we observe that the trial court, exercising its discretion, correctly allowed Thistle to file an amended affidavit in order to supply the trial court with a copy of the contract upon which Thistle's lawsuit was based. Therefore, the Court of Civil Appeals correctly held that this exercise of discretion by the trial court was allowed by the provisions (and encouraged by the spirit) of Rule 56(e).
At this point, a review of Thistle's burden of proof is in order. The original complaint alleged a cause of action against the partnership entities, Costa & Head (Atrium), Ltd., and Costa & Head (Birmingham One), Ltd. The contract between Thistle and Costa & Head (Atrium), Ltd., was admitted into evidence by the trial court as an attachment to the amended affidavit and now stands as uncontradicted proof of the partnership's liability for the debt owed Thistle.
Thistle's burden of proof with regard to the individual defendants' liability for the debt is another matter. Strauss *1282 attempted to meet the requirements of Rule 56(e) by testifying from "personal knowledge" regarding the individual defendants' relationships with the partnership defendants. Strauss's conclusory statements, however, would not have been admissible at trial for the purpose of proving the individual defendants' liability for the debt. The problem is not one of whether the trial court erred in permitting the filing of the supplemental affidavits; rather, the problem is whether the substance of those affidavits and their attachments is proof that Thistle is entitled to judgment against the individual defendants as a matter of law.
Indeed, if this case had gone to trial, and if Thistle had rested its case after Strauss's testifying regarding her "personal knowledge" of the probate court records, the individual defendants would have been entitled to a directed verdict. If the testimony in question was insufficient to withstand a motion for directed verdict, it is certainly insufficient to put on the individual defendants the burden to offer contradictory evidence in opposition to the plaintiff's motion for summary judgment.
In the final paragraph of Part I of its opinion, the Court of Civil Appeals found that the defendants had failed to offer evidence "showing that there was a genuine issue [of fact] for trial," and held that "[i]n view of the sworn affidavits and in the absence of any contradictory evidence, summary judgment was proper." 572 So. 2d at 1275. However, because Strauss's affidavit regarding the relationships of the individual defendants to the partnership defendants was improperly allowed, and because the defendants filed motions to strike each of Thistle's proffered affidavits as they were filed, the defendants were not required to rebut the assertions made by Thistle's motion for summary judgment.
Schoen v. Gulledge, 481 So. 2d 1094, 1096 (Ala.1985).
Thistle did not prove the absence of a genuine issue of material fact regarding its allegations of liability on the part of the individual defendants; thus, the defendants never had the burden of proving the existence of such an issue. While the trial court did not err in allowing the subsequently filed affidavits, it did err in entering summary judgment for Thistle, because those affidavits did not contain admissible evidence that, if uncontradicted, would entitle Thistle to a judgment as a matter of law. The defendants properly filed their motions to strike the affidavits as containing inadmissible evidence.[2] Therefore, the judgment of the Court of Civil Appeals affirming the judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Strauss, in the concluding sentence of her original affidavit, stated: "This affidavit is being furnished for the purpose of obtaining a judgment against the named defendants Pedro C. Costa, Nelson H. Head, Beverly P. Head, Jr., James R. Forman, Jr., and Thomas L. Howard, Jr." At the time Thistle filed its motion for summary judgment, the Costa & Head companies were in bankruptcy.
[2] We note that the issues raised in this case are distinguishable from the issues resolved by the recent case of Breen v. Baldwin County Federal Savings Bank, 567 So. 2d 1329 (Ala.1990), and the case of Schroeder v. Vellianitis, 570 So. 2d 1220 (Ala.1990), released this date. In those cases, the threshold question was whether affidavit testimony could be considered in the absence of an objection to, or motion to strike, the affidavit testimony. We need not address that question in this case, because each affidavit filed by Thistle was countered by the defendants with a motion to strike. See, also, Perry v. Mobile County, 533 So. 2d 602 (Ala.1988). | September 28, 1990 |
d444376c-afdb-4b81-ba34-f8285eca8897 | Ex Parte Darden | 571 So. 2d 1280 | 1900172 | Alabama | Alabama Supreme Court | 571 So. 2d 1280 (1990)
Ex parte Ryan DARDEN.
(Re Ryan Darden
v.
State of Alabama).
1900172.
Supreme Court of Alabama.
December 14, 1990.
Roger C. Appell, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
MADDOX, Justice.
Our denial of the writ should not be understood as approving or disapproving the language or statements of law contained in the opinion of the Court of Criminal Appeals. 571 So. 2d 1272. See Cooper v. State, 287 Ala. 728, 252 So. 2d 108 (1971).
WRIT DENIED.
HORNSBY, C.J., and JONES, ALMON and STEAGALL, JJ., concur. | December 14, 1990 |
15317a6e-f90b-44ae-a9a6-4e5fc3c5ee41 | Standard Furniture Mfg. Co. v. Reed | 572 So. 2d 389 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 389 (1990)
STANDARD FURNITURE MANUFACTURING COMPANY, INC.
v.
James E. REED.
89-131.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied December 7, 1990.
*390 Norborne C. Stone, Jr. and Eaton G. Barnard of Stone, Granade, Crosby, & Blackburn, Bay Minette, for appellant.
Floyd C. Enfinger, Jr., Montrose, for appellee.
JONES, Justice.
This is an appeal from a judgment entered on a jury verdict in favor of James E. Reed and against Standard Furniture Manufacturing Company, Inc. ("Standard Furniture"), based on Reed's claim of fraudulent misrepresentation. We affirm.
James Reed, a 24½-year employee of Standard Furniture, participated in the company's pension plan that was established soon after Mr. Reed became employed by Standard Furniture. Reed claims that he was told by his immediate supervisor, Hugh Dixon, that if he took an early retirement, he would receive a lump sum payment of $38,000 from the pension plan.
After his discussion with Dixon, Reed says, he decided to take an early retirement. Reed claims that, on his last day of work, he met with Mr. Gray, the administrator of the pension plan, and that Mr. Gray agreed with the $38,000 figure stated by Dixon. Gray, however, maintains that this meeting never took place.
*391 After retiring, Reed was offered only $11,242.82 from the pension plan. Reed sued Standard Furniture for damages based on an alleged fraudulent misrepresentation, claiming that he would not have taken the early retirement but for the promise of receiving $38,000 from the pension plan. After a jury trial, Reed was awarded $57,000 in damages, and the trial court entered judgment on the jury's verdict. From that judgment, Standard Furniture appeals.
The first issue presented is whether the trial court erred in denying Standard Furniture's motions for directed verdict at the close of all the evidence and for judgment notwithstanding the verdict.
The standard of review for testing the sufficiency of the evidence when the sufficiency is challenged by either a motion for directed verdict or a motion for JNOV is the "substantial evidence rule" set out at Ala.Code 1975, § 12-21-12(d):
See also Rowden v. Tomlinson, 538 So. 2d 15, 18 (Ala.1989) (Jones, J., concurring specially).
Applying this standard to the facts before us, we find that there was presented such evidence that "reasonable and fairminded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven."
To prove fraud, a plaintiff must allege and prove each of the following elements: 1) a false representation of 2) a material fact, 3) which was relied upon by the plaintiff, 4) who was damaged 5) as a result of his reliance. Ala.Code 1975, § 6-5-101. When promissory fraud is alleged, two additional elements must be proved: 1) that the misrepresentation was made with a present intent to deceive and 2) that, at the time the misrepresentations were made, the defendant intended not to perform. Leisure American Resorts, Inc. v. Knutilla, 547 So. 2d 424 (Ala.1989) (citing Selby v. Quartrol Corp., 514 So. 2d 1294 (Ala.1987)); and Coastal Concrete Co. v. Patterson, 503 So. 2d 824 (Ala.1987).
Standard Furniture argues that, because Reed testified that he relied upon the statements made by Dixon, there can be no reliance on statements later made by Gray, the administrator of the pension plan and one of the trustees of the plan. Under the circumstances of this case, however, that is not so. Standard Furniture is the defendant in this case, and any agent speaking within the scope and authority of his employment with that corporation speaks for that corporation. The evidence was sufficient to support a finding of a principal-agent relationship between Standard Furniture and Gray; therefore, the statements of Gray were statements of Standard Furniture. We also conclude that the jury could have reasonably inferred from the evidence that Reed had reasonably relied upon Gray's representations.
Consequently, Reed's claim of fraud was not vitiated by his decision to take an early retirement before speaking with Gray. There is evidence that Reed informed Gray that he had been told that he would receive $38,000 upon his early retirement, and that Gray said, "[I]t's somewhere in that neighborhood," thereby ratifying the statement made by Dixon. "Even if the fraud was initially beyond the scope of the agent's authority, the employer will be liable where the fraud is ratified." Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala. 1986).
Further, because of Gray's position in the company as administrator of the pension plan and as a superior to Reed, Gray had a duty to disclose to Reed that the $38,000 figure either was not, or did not sound, correct. Ala.Code 1975, § 6-5-102, provides: "Suppression of a material fact which the party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case." Gray was in a position *392 of trust, serving as administrator of the pension plan; there was evidence that when he was told by Reed of the amount of $38,000, Gray responded affirmatively. Having the means of acquiring knowledge is the equivalent of having knowledge (see J.S. Carroll Merc. Co. v. Harrell, 199 Ala. 87, 74 So. 252 (1917)), and Gray had a duty to correct Reed if he knew, or could have learned, that the $38,000 figure was, in fact, wrong.
Standard Furniture asserts that Reed failed to prove the two additional elements necessary for promissory fraud: 1) present intent to deceive, and 2) intention not to perform. However, this Court has often recognized that intent to deceive is an issue "peculiarly within the province of the trier of facts." Hodges v. Pittman, 530 So. 2d 817, 819 (Ala.1988). See, also, Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987); and Southeastern Properties, Inc. v. Lee, 368 So. 2d 288 (Ala.1979). Nonetheless, this Court has written:
Hodges v. Pittman, supra. at 819 (quoting Martin v. American Medical International, Inc., 516 So. 2d 640, 642 (Ala.1987), quoting other cases).
In looking at the particular circumstances under which Gray made the alleged statement, this Court holds that the issue of intent was properly presented to the jury. Gray was the administrator of the pension plan, apparently having more knowledge of the plan than the average employee. Gray testified that, when he spoke with Dixon about Reed's retirement, Reed was already "out of the way." Gray also testified that he interviews "everyone that terminates," and that his doing so is standard procedure at Standard Furniture. After making that statement, however, Gray testified that he had never met with Reed upon Reed's taking an early retirement. From these facts it is possible that a jury "could infer that at the time the promise was made the defendant had no intention of performing." Hodges v. Pittman, supra at 819.
We address the "promissory fraud" argument because it is the argument made by Standard Furniture. By doing so, however, we do not mean to be understood as agreeing that the misrepresentation in this case constitutes promissory fraud, i.e., a misrepresentation of an event to occur in the future. The agents of Standard Furniture represented a present fact: the amount Reed would receive in the future based upon the present state of the pension fund. Accordingly, Reed needed only to prove that the facts represented were false and that they were either intentionally or recklessly misrepresented. (For a case raising a similar issue under similar facts, see Frazier v. City of Mobile, [Ms. 89-239, September 28, 1990] (Ala.1990).)
Standard Furniture further argues that Reed's reliance on the alleged misrepresentation was not reasonable. It relies heavily upon Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983), which holds that "[i]f the circumstances are such that a reasonably prudent person who exercised ordinary care would have discovered the true facts, the plaintiffs should not recover." However, this Court has recently redefined the standard for determining reliance:
Hickox v. Stover, 551 So. 2d 259, 263 (Ala. 1989) (quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala.1989) (Hornsby, C.J., concurring specially)).
Applying this redefined standard to this case, we conclude that Reed could have *393 justifiably relied on the alleged misrepresentation made to him and, therefore, that the issue was properly submitted to the jury. Reed was the service manager for Standard Furniture, in charge of maintenance for the trucks and forklifts belonging to the company. There is no evidence that he had any special knowledge of the pension plan. In fact, there was testimony that Reed had never seen a copy of the plan. However, Gray, the Standard Furniture employee with whom Reed says he talked on Reed's last day of work at Standard Furniture, was administrator of the plan. The evidence does not require a finding that Reed "closed his eyes to avoid the discovery of the truth" Hickox, supra, and we hold that the trial court properly denied Standard Furniture's motions for directed verdict and J.N.O.V.
Standard Furniture also asserts that the trial court erred in denying its post-judgment motion for new trial. It argues that the trial court improperly admitted the testimony of witness Barney Lawley, an employee of Standard Furniture, who testified regarding a conversation he said he overheard between Reed and Dixon. Standard Furniture argues that the substance of the conversation is inadmissible because, it says, Dixon, Reed's superior, was not speaking to Reed as an agent of Standard Furniture and was not acting within the scope of authority granted him by Standard Furniture.
Reed, on the other hand, urges us to apply the subjective test found in Russellville Flower Craft, Inc. v. Searcy, 452 So. 2d 478 (Ala.1984): "It is axiomatic that rulings as to the admissibility of evidence [with respect to relevancy] rest largely within the discretion of the trial court. Such rulings will not be disturbed on appeal in the absence of [an] abuse of discretion." 452 So. 2d at 480.
Dixon was, without question, an agent of Standard Furniture. However, for his actions to bind the corporation, Dixon must have been acting with either express, implied, or apparent authority. Lawler Mobile Homes, Inc. v. Tarver, supra. Nothing in the record supports a finding that Dixon had express or implied authority to make the statements regarding Reed's retirement benefits. Therefore, in order for Dixon's statements to Reed regarding retirement benefits, as testified to by Lawley, to be admissible against Standard Furniture, it must be found that Dixon had apparent authority. As noted by this Court in Lawler Mobile Homes, Inc. v. Tarver, 492 So.2d at 304:
The acts of Standard Furniture here, through the conduct of Gray, the administrator of the pension plan, and the conduct of Dixon, are sufficient to convey apparent authority to these employees. Dixon was vice president of Baldwin Leasing Company, an affiliate of Standard Furniture and had been Reed's immediate supervisor for 24½ years. Reed reported only to Dixon and was justified in relying on the superior knowledge of his supervisor, even though his supervisor may not have been the exact employee responsible for the payment of the pension funds. A principal is liable for the fraud of its agent, committed in the course of his employment, where others rely on the fraudulent misrepresentations to their detriment. Arkel Land Co. v. Cagle, 445 So. 2d 858, 862 (Ala.1983).
In District 20, United Mine Workers of America v. Sams, 287 Ala. 312, 318, 251 So. 2d 613 (1971), this Court affirmed a judgment based on a jury verdict for the plaintiff, writing:
287 Ala at 318, 251 So. 2d at 618. The evidence in Sams showed that the plaintiff was disabled and totally unable to work. *394 He had little education and could not see. He paid his union dues until age 60, being told by the union officer that he would collect his retirement benefits if he did so. The union refused to pay because the plaintiff had not worked the required time within the last 30 years prior to retirement.
The case here shows a similar reliance by the plaintiff on statements made by his supervisor. Reed testified that he was told by Dixon that he would receive a lump sum payment of his pension benefits of $38,000 if he retired early. He further testified that in a conversation with the administrator of the pension plan, the administrator agreed with this figure. While the administrator disputes that this conversation took place, the jury evidently believed the plaintiff and believed that he relied on the statement made by Dixon and, in reliance, retired early.
The testimony of Reed regarding the statement made by Gray, the administrator of the plan, was sufficient evidence for the jury to find that the statement by Dixon was ratified by the corporation. See Lawler Mobile Homes, Inc. v. Tarver, supra.
Under these facts and circumstances, we conclude that the trial court did not abuse its discretion in allowing into evidence the testimony of Lawley, as it pertained to the alleged statement made by Dixon to Reed regarding Reed's entitlement from the pension plan.
Accordingly, the judgment appealed from is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent. | September 28, 1990 |
e10eb1e0-622e-4eab-8494-88e6ea085790 | Ex Parte Ellington | 580 So. 2d 1367 | N/A | Alabama | Alabama Supreme Court | 580 So. 2d 1367 (1990)
Ex parte William Eric ELLINGTON.
(Re William Eric Ellington v. State).
89-363.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied April 19, 1991.
*1368 Jerry S. Barclay, Huntsville, for petitioner.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for respondents.
ADAMS, Justice.
We granted certiorari review in this case to address Ellington's argument that the trial court erred in refusing to strike a juror for cause. We reverse and remand.
William Eric Ellington was convicted of rape in the first degree and was sentenced to 30 years' imprisonment. On appeal, he argues that one of the members of the jury venire admitted that the fact that her husband worked for the police department, coupled with the fact that two detectives from the department would be testifying in the trial, would affect her ability to fairly judge the issues at trial. The following is the entire exchange between Ellington's attorney and the potential juror:
Following the voir dire, Ellington's attorney requested that Ms. Bryant be stricken for cause:
In regard to this issue, the Court of Criminal Appeals simply stated, "[W]e have carefully examined the remaining issues raised by appellant and find no merit in them. We deem further discussion unnecessary." Ellington v. State, 580 So. 2d 1365 (Ala. Cr.App.1989) (on return to remand).
In Knop v. McCain, 561 So. 2d 229 (Ala. 1989), this Court stated as follows:
Knop v. McCain, 561 So. 2d 229, 232 (Ala. 1989). See, also, Wood v. Woodham, 561 So. 2d 224 (Ala.1989).
In the present case, there was only a limited exchange between the attorney and Ms. Bryant; however, that exchange does indicate probable prejudice on her part. She indicated that her husband was on the police force and that she knew at least one of the detectives who was to testify at the trial. These things, she stated, would affect her ability to hear the case. The trial judge had the opportunity to question her further to see if, despite her biases, she could listen to the facts and apply the law to them. The judge did not do so and, instead, simply denied the motion to strike Ms. Bryant for cause. Because the evidence before us does indicate probable prejudice and thus an abuse of discretion on the part of the trial judge in refusing to strike for cause, we are compelled to reverse the judgment and remand this case with instructions to order a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
KENNEDY, J., dissents.
MADDOX, Justice (concurring specially).
When the juror stated that her ability to hear the case would be affected, the defendant had met his burden of showing that the juror was probably prejudiced. There is no showing in this record of any evidence that modifies, in any way, that juror's statement.
I cannot agree that this case is like Wood v. Woodham, 561 So. 2d 224 (Ala.1989). The holding there is wrong, and I regret that Knop v. McCain, 561 So. 2d 229 (Ala. 1989), is cited in the same paragraph with Woodham, because the two cases are so factually different. | September 28, 1990 |
99299474-7cca-4b1f-aaa7-0e446292a9d6 | Ex Parte Campbell | 574 So. 2d 713 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 713 (1990)
Ex parte Johnny Wayne CAMPBELL.
(Re Johnny Wayne CAMPBELL v. STATE).
89-325.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied November 2, 1990.
*714 Jerry Knight of Hardwick, Knight & Haddock, Decatur, for petitioner.
Don Siegelman, Atty. Gen., and Margaret S. Childers, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Johnny Wayne Campbell was convicted of first degree-burglary and of murder. The Court of Criminal Appeals affirmed the convictions without an opinion, 553 So. 2d 136, and he has sought certiorari review.
On June 5, 1986, an automobile driven by Campbell collided with an automobile driven by Mrs. Lou Smith. The accident occurred at the intersection of Vaughn Bridge Road and Forest Chapel Road in Morgan County. The evidence indicated that Campbell was traveling north on Forest Chapel Road and that Mrs. Smith was traveling east on Vaughn Bridge Road. Law enforcement officers who investigated the accident testified that Campbell apparently ran the stop sign, although none of those officers witnessed the collision. Both Mrs. Smith and her five-week old son Patrick were severely injured in the accident. Patrick died that night; Mrs. Smith recovered.
The first police officer on the scene was Flint City Chief of Police Charles Zanda, who notified the state troopers that a collision had occurred within their jurisdiction. He remained at the scene of the collision to offer assistance.
Looking inside Campbell's automobile, Zanda saw 3 cans of beer on the floor of the driver's side of Campbell's car and a 24-can carton, which contained 3 more cans, on the floor of the passenger's side. None of the cans was open. Zanda then removed the keys from the ignition and opened the trunk. In the trunk he saw a videocassette recorder, videocassette tapes, several rolls of pennies, a radio-telephone combination with a Hartselle phone number on it, and a 35-mm camera and case. By this time, state troopers had arrived to investigate the collision. Zanda showed Trooper Mike Ball what was in the trunk. Both Zanda and Ball then looked through the passenger compartment, and they found a gold band ring and a blue jewelry box.
That same day, Jackie Strickland had left his house trailer between 6:00 and 6:15 a.m. He returned around 7:00 p.m. to discover that someone had broken into the house trailer and had stolen some of his belongings. Among the items missing were a videocassette recorder, videocassette tapes, several rolls of pennies, a 35-mm camera and case, a radio-telephone combination, some beer out of the refrigerator, several knives, some rings, a gold watch, and a gold compact. Two days later, on June 7, 1986, Mr. Strickland reported the break-in. Law enforcement officers showed Strickland the items found in Campbell's trunk, and Strickland identified the property as his.
Strickland's house trailer was located off Forest Chapel Road, approximately .8 mile from the scene of the accident. A car traveling north on Forest Chapel Road would be leaving the area of Strickland's *715 trailer. Campbell lived in Decatur, approximately five miles from the scene of the accident.
Ala.Code 1975, § 13A-7-5, provides the elements of first-degree burglary:
There was no evidence that Campbell was armed with an explosive or a deadly weapon or that he threatened the immediate use of a dangerous instrument during the burglary. Nevertheless, the State contends that Campbell's conviction of first-degree burglary is proper because, it says, there was evidence that he injured Mrs. Smith and killed her son while in immediate flight from the scene of the burglary. Campbell's murder conviction is based upon his conviction of first degree burglary; that is, pursuant to Ala.Code 1975, § 13A-6-2(a)(3), a person is guilty of murder if he causes the death of a person while committing or attempting to commit, or in immediate flight from, a first-degree burglary. The issue we must address, accordingly, is whether the State produced sufficient evidence of "immediate flight" to sustain Campbell's conviction of first-degree burglary, on which Campbell's conviction of murder is based.
The State contends that six items from the record indicate that Campbell was in immediate flight from the burglary: (1) The accident occurred .8 mile from Mr. Strickland's house trailer; (2) the beer in Campbell's car was still cold at the time of the collision; (3) the testimony of the officer who investigated the wreck indicated that at the time of the accident Campbell was traveling in a direction that was away from the house trailer; (4) Campbell apparently ran a stop sign; (5) Campbell still had the stolen property in the trunk of his car; (6) Campbell's vehicle was traveling faster than Mrs. Smith's when the accident occurred.
Campbell contends that, although the record contains the evidence described by the State, the record also contains evidence that raises reasonable doubts whether he was in immediate flight from Strickland's trailer. The record indicates that the time frame for the burglary covered almost six hours. Strickland testified that he left his house trailer between 6:00 a.m. and 6:15 a.m. that day. The accident occurred a few minutes before noon. The site of the accident was only .8 mile from the house trailer, but it was within 5 miles of Campbell's home. Zanda testified that Forest Chapel Road would take Campbell to Decatur and that the site of the accident was within five miles of a store that sold beer.
The record does not show that Strickland identified the beer as being the beer from his refrigerator. Strickland testified that he had Stroh light beer, and that was the brand of beer recovered from the car. Strickland further testified that he had bought a carton containing 24 cans of beer 1 or 2 days earlier, but that he could not recall how many cans were left.
The testimony of the officers who investigated the collision indicated that Campbell was traveling north, in a direction that was away from Strickland's house trailer, when the collision occurred. The officers testified that Campbell apparently ran a stop sign, but the officers were not witnesses to the collision. The only testimony as to speed was provided by Mrs. Smith and Trooper Wolf. Mrs. Smith testified that she was traveling at about 40 miles per hour. Wolf testified that, from the evidence at the wreck scene, it appeared that Campbell's car was traveling slightly faster than Mrs. Smith's car. Zanda testified that the speed limit on both roads was 45 miles per hour. Thus, according to Wolf's testimony, Campbell could have *716 been travelling within the speed limit when the accident occurred.
The evidence of immediate flight is not convincing beyond a reasonable doubt. The house trailer may have been burglarized as early as 6:15 a.m. Campbell lived in the area and, accordingly, it would not have been unusual for him to be on the road where the accident occurred. Although possession of the stolen property may give rise to a presumption that Campbell was involved in the theft of Strickland's belongings, Whisenant v. State, 466 So. 2d 995 (Ala.Crim.App.1984), rev'd on other grounds, 466 So. 2d 1006 (Ala.1985), that possession does not give rise to a presumption that Campbell was in immediate flight from the scene of the burglary. The evidence was insufficient to prove that Campbell was in immediate flight from the scene of the burglary. Accordingly, the State did not produce sufficient evidence to support Campbell's conviction for first-degree burglary, on which Campbell's murder conviction was based.
Both convictions were improper. The judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
MADDOX, JONES, ALMON, SHORES and HOUSTON, JJ., concur. | September 21, 1990 |
ff180b34-ee2b-4631-9b87-911d807bed3d | Ex Parte Grubbs | 571 So. 2d 1119 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1119 (1990)
Ex parte Billie E. GRUBBS and Lena T. Grubbs.
(Re Billie E. GRUBBS and Lena T. Grubbs v. JENKINS BRICK COMPANY.
Billie E. GRUBBS and Lena T. Grubbs v. Jack K. MOORE, d/b/a South Central Door Company).
89-502.
Supreme Court of Alabama.
September 21, 1990.
Alicia J. Putt of Smyer, White & Putt, Birmingham, for petitioners.
Stephanie W. Werdehoff of Stephens, Millirons, Harrison & Williams, Huntsville, for respondents.
HOUSTON, Justice.
Wells Building Company, Inc. ("Wells"), owned a residential lot in a subdivision in Huntsville, Alabama. Wells built a house on the lot and later sold it to Billie E. Grubbs and his wife, Lena T. Grubbs. Prior to the sale, Jenkins Brick Company ("Jenkins") and Jack K. Moore, d/b/a South Central Door Company, furnished materials to Wells that were used in the construction of the house. Wells failed to pay for those materials. The Grubbses had no contract, express or implied, with either Jenkins or Moore to pay for the materials that were sold to Wells. Jenkins and Moore timely filed statements of lien against the Grubbses' property and, thereafter, sued, along with others, Wells and the Grubbses, seeking money judgments against Wells and seeking to have materialman's liens perfected and enforced against the Grubbses' property. Wells filed a petition for relief in the bankruptcy court, and further action against Wells was stayed. After an ore tenus hearing, the trial court found that Jenkins and Moore were entitled to money judgments against Wells; however, *1120 because of the automatic stay in force in the bankruptcy proceeding, those judgments could not be entered. The trial court, instead, entered a money judgment for Jenkins against the Grubbses and a judgment purporting to establish Jenkins's lien. The trial court also entered a judgment for Moore, purporting to establish his lien, but it did not enter a money judgment for Moore against the Grubbses. The trial court ordered the sale of the Grubbses' property to satisfy the amounts owed by Wells to Jenkins and Moore. The Grubbses appealed these judgments to the Court of Civil Appeals, which affirmed the judgment for Jenkins, but reversed the judgment for Moore on the ground that the trial court had not entered a money judgment for Moore against the Grubbses. See Grubbs v. Jenkins Brick Co., 571 So. 2d 1116 (Ala.Civ.App.1989). The Grubbses then petitioned for a writ of certiorari, pursuant to Rule 39, A.R.App.P. We reverse and remand.
The Grubbses contend that the Court of Civil Appeals erred in holding that they were subject to personal liability for the debt of Wells. The Grubbses argue that Ala.Code 1975, § 35-11-224, required that a money judgment be entered against Wellsthe party liable for the debtas a prerequisite to perfecting and enforcing the liens and that because that was not done the trial court's judgment for Jenkins should have been reversed. We agree.
Materialman's liens, being statutory creations, can be perfected and enforced only by complying with the requirements found in Ala.Code 1975, § 35-11-210 et seq. The liens are inchoate and will be lost if the lienors fail to perfect them according to the requirements of the statute. Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So. 2d 138 (Ala.1990).
Section 35-11-224, supra, reads as follows:
(Emphasis added.) This section requires that liability for the debt be established and that a money judgment be entered against the debtor as a prerequisite to perfecting and enforcing the lien. See May & Thomas Hardware Co. v. McConnell, 102 Ala. 577, 14 So. 768 (1893); see, also, 53 Am. Jur.2d, Mechanic's Liens § 342 (1970). Because the Grubbses had no contract, express or implied, with either Jenkins or Moore to pay for the materials that were sold to Wells, they were not personally liable for the debt. By their liens, Jenkins and Moore simply had a right to charge the Grubbses' property with the payment of Wells's debt. Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68 (1919). Accordingly, the trial court erred in entering a money judgment for Jenkins against the Grubbses. Copeland v. Dixie Lumber Co., 4 Ala.App. 230, 57 So. 124 (1911); McGeever v. Harris & Sons, 148 Ala. 503, 41 So. 930 (1906); May & Thomas Hardware Co. v. McConnell, supra.
We are fully aware that the trial court was prohibited from entering money judgments against Wells because of the automatic stay in force in the pending bankruptcy proceeding. We note, however, that apparently no attempt was made by Jenkins and Moore to have the stay lifted. In any event, the Legislature has seen fit to require the entry of a money judgment against the debtor as a prerequisite to the perfection and enforcement of a materialman's lien and, as previously noted, this Court must look to see if the requirements of the statute have been met. If a change in the statute is needed to protect the interests of a materialman when a money judgment *1121 cannot be entered against the debtor, that change must be made by the Legislature; it cannot be made by this Court. Ala. Const. 1901, Art. III, § 43 ("Separation of powers").
We note that our decision in this regard appears to be inconsistent with Copeland Construction Co. v. All-Phase Electrical Wholesalers, Inc., 378 So. 2d 230 (Ala.Civ. App.1979), Starek v. TKW, Inc., 410 So. 2d 35 (Ala.1982), and McGeever v. Harris & Sons, supra.
In Copeland Construction Co., the Court of Civil Appeals correctly acknowledged that § 35-11-224 requires the entry of a money judgment against the debtor. However, the court inexplicably held that the requirements of § 35-11-224 had not been met because a money judgment had not been entered against the owner of the property, even though the owner apparently had no contract, express or implied, with the materialman to pay for the materials that were sold by the materialman to a subcontractor that had participated in the owner's construction project. As we understand the facts of that case, the subcontractor was liable for the debt, and a money judgment had been entered against it in favor of the materialman in a separate suit on an account. Copeland Construction Co. appears to have been wrongly decided.
The facts in Starek are very similar to those in the present case. The Stareks had purchased a house from Blackmon Construction & Realty, Inc. ("Blackmon"). Unknown to the Stareks, Blackmon had failed to pay TKW, Inc., a building supplier that had provided materials to it for the construction of the house. Blackmon went bankrupt. TKW filed suit to perfect and enforce its lien on the Stareks' property. One of the issues presented to this Court was whether Blackmon had to be joined as a party to the suit under Rule 19, A.R. Civ.P. This Court, citing Ala.Code 1975, § 35-11-223(a), held that Blackmon was not a necessary party to the suit. Section 35-11-223(a) provides:
Although this section does state in general terms that "all parties interested in the matter in controversy ... may be made parties," § 35-11-224 specifically requires that a money judgment be entered against the debtor. Therefore, Starek was correct to the extent of its holding that the debtor does not always have to be joined as a party to the suit in order for a materialman to perfect and enforce his lien. A prime example of when a debtor does not have to be joined is found in the facts of Copeland Construction Co., supra. As previously noted, the materialman in Copeland Construction Co. had secured a money judgment against the debtor in a separate action prior to filing suit to perfect and enforce the lien. Logic dictates that the Legislature never contemplated that the entry of a second money judgment against the debtor under those circumstances would be necessary. However, in Starek, it does not appear that a money judgment had been entered against the debtor, Blackmon, prior to suit being filed to perfect and enforce the lien.
In McGeever, this Court reversed the money judgment that was entered in favor of the materialman against the owner of the property, on the ground that the owner had no contract, express or implied, with the materialman to pay the debt. Nevertheless, the judgment enforcing the lien was affirmed, even though it does not appear that a money judgment had been entered against the owner's husband, who had incurred the debt.
After carefully reviewing Copeland Construction Co., Starek, and McGeever, we overrule the holdings in those cases to the extent that they are inconsistent with our holding in the present case.
For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed to the extent that it upheld the trial court's judgment for Jenkins and the case is remanded *1122 for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES and KENNEDY, JJ., concur.
SHORES, ADAMS and STEAGALL, JJ., concur in the result. | September 21, 1990 |
227424da-a915-4f75-a3e9-d56fa8604342 | Ex Parte Varner | 571 So. 2d 1108 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1108 (1990)
Ex parte Clydia M. VARNER.
(Re Clydia M. VARNER v. John G. ALLEN, Director, State Department of Industrial Relations, and West Alabama Home Health Agency, Inc).
88-1416.
Supreme Court of Alabama.
September 21, 1990.
*1109 Robert J. Varley and Shirley B. Roberson of Legal Services Corp. of Alabama, Montgomery, for petitioner.
George Cocoris, Gen. Counsel, and Frank D. Marsh, Asst. Gen. Counsel, State of Ala. Dept. of Industrial Relations, for respondent.
JONES, Justice.
Our opinion of February 9, 1990, is withdrawn and the following opinion substituted therefor.
We issued the writ of certiorari to the Court of Civil Appeals to review the issue whether the 10-day period for appeal provided in Ala.Code 1975, § 25-4-95, or the 30-day period for appeal provided in § 41-22-20 governs this case. The Court of Civil Appeals, following its reasoning in Mays v. Sabel Steel Services, Inc., 500 So. 2d 467 (Ala.Civ.App.1986), applied the 10-day statute, and thus held that the appeal, which was filed on the 30th day, was untimely. (Judge Robertson dissented.)
Because we agree with the dissenting opinion of Judge Robertson, we quote it here:
(Emphasis added by Judge Robertson.)
We adopt Judge Robertson's dissenting opinion as the opinion of this Court and make one additional observation: Whatever the state of the law may have been before the 1986 amendment to the AAPA with respect to the time within which to file an appeal from an administrative agency to the circuit court, it is abundantly clear that this issue was resolved by the addition of the final sentence in § 41-22-20(d): "This section shall apply to judicial review from the final order or action of all agencies, and amends the judicial review statutes relating to all agencies to provide a period of 30 days within which to appeal or to institute judicial review."
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION GRANTED; REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | September 21, 1990 |
01d5c409-3270-4ae5-b8c3-d022e91d29db | Howell v. Bradford | 570 So. 2d 643 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 643 (1990)
Hugh HOWELL and Mary Bradford Howell
v.
J.L. BRADFORD.
89-1021.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied November 16, 1990.
*644 Thomas J. Knight, Anniston, for appellants.
C.E. Isom of Bolt, Isom, Jackson & Bailey, Anniston, for appellee.
PER CURIAM.
Bobbie Bradford sued for a sale of land and a division of the proceeds, naming J.L. Bradford, Earl Bradford, Mary Bradford Howell, and William Jerry Bradford, as defendants. All of the parties were children of Anthony and May Bradford, who are both deceased, and the suit involved property that was part of Anthony and May's estate. In that litigation, a controversy arose as to the location of the southern boundary line between the estate's property and the property owned by Mary Bradford Howell and her husband Hugh Howell. Another controversy arose as to the location of the eastern line of the Howells' property, which would also be the western line of William Jerry Bradford's property. The trial court entered a final judgment establishing the boundary lines but postponed the sale until the boundary line dispute could be resolved. The Howells appeal, arguing that the trial court erroneously established the boundary lines.
The trial judge personally viewed the disputed property and heard ore tenus evidence. Where testimony is presented ore tenus, the trial court's findings are presumed correct and will not be disturbed unless palpably erroneous, without supporting evidence, or manifestly unjust. Wallace v. Putman, 495 So. 2d 1072, 1075 (Ala.1986). This presumption is especially strong in boundary line disputes and adverse possession cases, Scarbrough v. Smith, 445 So. 2d 553, 556 (Ala.1984), and is further enhanced if the trial court personally views the property in dispute. Wallace, at 1075.
The Howells contend that the trial court erred in establishing the boundary line between their property and that of William Jerry Bradford. The tract of land that Anthony and May Bradford originally owned was in the general shape of a horizontal rectangle; that tract as it exists today is depicted in Appendix A. On the western half of that rectangle lies the undisputed portion of the estate property, and it extends the full length of the tract north to south. Towards the middle of that rectangle, in an east-to-west direction, lies the Howells' property that Anthony and May deeded them, and it, according to the Howells, extends from the southern boundary of the property north for three-quarters of *645 the tract. The trial court found the southern boundary of the Howells' property to be the field road described below. Bradford's property is east of the Howells' and runs from Self Road in the south to a similar northern boundary as the Howells'. A field road runs east to west all the way across the Howells' property and the estate property; that road is located slightly south of the middle of the tract. James Barry was appointed by the court to survey the property.
The Howells argue that the trial court erred in finding the northeast corner of their property to be a point determined by Barry's survey. The record indicates that using the point claimed by the Howells to be the northeast corner of their property would not be consistent with the Howells' deed. The deed states that Howells' northeast corner is located 630 feet from a certain corner of a 40-acre parcel. The Howells claim that the corner of the 40 acres is located at the corner of a subdivision. Barry testified that the corner is actually located 63.94 feet from the subdivision corner. Using Barry's measurements results in both the Howells and Bradford having the amount of property that their deeds state that they have. Furthermore, if the Howell's measurement is used, and a southerly line is extended from that corner, the line would project onto the property owned by another neighbor. We conclude that the trial court did not err by using Barry's survey in establishing the northeast corner of the Howells' property.
The Howells contend that, regardless of Barry's survey and the deeds, the trial court improperly determined the boundary line between their property and Bradford's, because, they argue, they had acquired the disputed land through adverse possession. The basis for their claim by adverse possession is testimony concerning the location of a garden. Although the Howells produced evidence that they had planted a garden in the vicinity of the land that they claim to own through adverse possession, Bradford presented evidence that their use of the land was by and with his permission. Entry upon and possession of land with the permission of the owner will not create title by adverse possession. Wallace, at 1076. The trial court could have properly determined that any use of Bradford's land by the Howells was permissive and, accordingly, did not support their claim for title by adverse possession. We conclude that the trial court did not err when it established the boundary line between the Howells' property and Bradford's property.
The Howells contend that the trial court erred when it established the southern boundary line between their property and the estate's property. The Howells' deed states that their property extends south to a field road and then to the west along the field road until the property runs into a creek. The trial court established the boundary line along the field road described earlier.
The Howells contend that this was error, because there had been another, older field road and that that road and not the present field road is the one referred to in the deed. Bradford presented much strong, unequivocal evidence to the contrary. Neighbors who had lived in the community for as long as 55 years stated that the present road is the same road that always has been there. For example, Omer Benton Knowlton was 74 years old and had been familiar with the estate property since 1931; he testified that he had seen the road two or three weeks before trial and that the present road was the same road that he had always known, that it had not changed locations. The trial court itself viewed the property to look for another, older road. Aerial photographs did not indicate any evidence of another, older road. The trial court could properly determine that there was no older road as the Howells claimed and that the present road was the boundary described in the Howells' deed.
The Howells claim that, regardless of the boundary established by the deed, they own the land south of the field road by adverse possession. The trial court found that Anthony and May Bradford had acquired during their lifetime three parcels of land, from which they deeded a portion *646 to the Howells and the remainder of which comprises the estate property in this action. Although the trial court did not explicitly state that it did so, it could have determined that in relation to the estate property that the Howells claim by adverse possession, the Howells and Bradford are co-tenants. See, Porter v. Porter, 472 So. 2d 630 (Ala.1985).
In Beard v. Bates, 418 So. 2d 862, 864 (Ala.1982), we cited Tyson v. Jackson, 364 So. 2d 1140, 1141-42 (Ala.1978), to explain long-settled law concerning adverse possession as between tenants in common:
418 So. 2d at 864.
The trial court could permissibly have determined that the Howells failed to prove such an open, unequivocal ouster. Furthermore, there is additional evidence to justify the trial court's decision that the Howells did not adversely possess the land south of the field road. We conclude that the trial court did not err in establishing the boundary line between the Howells' property and the estate property.
The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.
*647 | September 21, 1990 |
212de07b-b1fb-4061-b9fc-6ce5447996c2 | BancBoston Mortg. Corp. v. Gobble-Fite Lumber Co. | 567 So. 2d 1337 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1337 (1990)
BANCBOSTON MORTGAGE CORPORATION, f/k/a Mortgage Corporation of the South
v.
GOBBLE-FITE LUMBER COMPANY, INC.
89-790.
Supreme Court of Alabama.
September 14, 1990.
Alicia J. Putt of Smyer, White & Putt, Birmingham, for appellant.
Robert H. Harris of Harris, Caddell & Shanks, Decatur, for appellee.
SHORES, Justice.
This case involves a materialman's lien claim. The central issue is the effect of a *1338 non-judicial mortgage foreclosure on a subsequent mechanic's or materialman's lien.
This Court thoroughly addressed this exact issue in Bailey Mortgage Co. v. Gobble-Fite Lumber Co., Inc., 565 So. 2d 138 (Ala.1990) (application for rehearing overruled, August 3, 1990). Bailey Mortgage Co. involved a default judgment taken against a mortgage company by the same company involved in this case and the question of the priority to be given a materialman's lien as against the mortgage holder that had initiated a foreclosure. This Court held in Bailey "that the holder of a prior mortgage that is superior to a mechanic's or materialman's lien, who forecloses and purchases the property at the foreclosure sale does not lose its priority." Id. Our reasoning in Bailey was:
Id. Our conclusions as to the facts of the Bailey case can be summarized as follows:
Id.
In the case before us, BancBoston's mortgage was on record at the time the materials were furnished by Gobble-Fite to Southwestin Corporation (a former mortgagor). Gobble-Fite properly perfected its lien. However, under our holding in Bailey, Gobble-Fite's materialman's lien is junior to the construction lender's mortgage. Because the facts in the present case are indistinguishable from those in Bailey, we must reverse the judgment of the trial court and remand the case for a judgment consistent with this holding.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | September 14, 1990 |
6f00a30e-b63e-4aba-8d52-f47c2aae6c26 | Burlington Northern R. Co. v. Whitt | 575 So. 2d 1011 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1011 (1990)
BURLINGTON NORTHERN RAILROAD COMPANY and R.H. Shalhoop
v.
Joan Fay WHITT, as administratrix of the Estate of William Charles Whitt, deceased.
88-376.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied November 9, 1990.
*1013 Charles E. Sharp, Mac B. Greaves and Joel A. Williams of Sadler, Sullivan, Herring & Sharp, Birmingham, and Morris W. Savage of Bankhead & Savage, Jasper, for appellants.
David Cromwell Johnson and Leila Hirayama of Johnson & Cory, Birmingham, Garve Ivey, Jr. of Wilson & King, Jasper, and Charles W. Gamble, Tuscaloosa, for appellee.
Broox G. Holmes and Grover E. Asmus II of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for amicus curiae Business Council of Alabama.
*1014 SHORES, Justice.
This appeal involves the grade-crossing collision near Townley, Alabama, of a railroad train operated by Burlington Northern Railroad Company, and a tractor-trailer truck driven by William Whitt, who was killed in the accident. Burlington Northern sued Ligon Nationwide, Inc. ("Ligon"), as Mr. Whitt's employer, and Joan Faye Whitt, as administratrix of the estate of William Charles Whitt, on October 25, 1985. Burlington claimed that Whitt, in driving onto the crossing, negligently and/or wantonly caused the tractor-trailer that he was driving for Ligon to collide with Burlington's train, damaging it in the amount of $150,000. Mrs. Whitt counterclaimed against Burlington Northern, Inc., and several of its employees; she alleged that they were guilty of negligence and wantonness and that their negligence and wantonness had wrongfully caused Mr. Whitt's death, and she sought a judgment in the amount of $3 million. Following a trial, the jury awarded Mrs. Whitt $15 million. The trial court denied the counter-defendants' motion for a new trial, a judgment notwithstanding the verdict, or a remittitur. This appeal followed. We shall refer to the counter-defendants as the "defendants" and to the counterclaimant, Mrs. Whitt, as the "plaintiff."
On Sunday, October 6, 1985, a freight train owned by Burlington Northern, Inc. ("Burlington"), was en route from Birmingham, Alabama, to Amory, Mississippi. The train consisted of two locomotives, 10 cars loaded with coal, and three empty cars. R.H. Shalhoop was operating the train and was seated on the right side of the lead locomotive. Henry Jackerson was seated on the left side of the lead locomotive and served as the crew's fireman. Also in the lead locomotive was the brakeman, Sidney McAnnally. The second locomotive was occupied by the flagman, Charles Chamblee, and the conductor, Guy Posey.
The train had stopped in Cordova, Dora, Alma, and Jasper, Alabama, and was travelling north to the next stop at Carbon Hill. Engineer Shalhoop testified that the speed limit set by Burlington for most of the distance between Jasper and Carbon Hill was 45 m.p.h., and the crew members estimated that the train was travelling at 42 or 43 m.p.h. before the accident. The train was equipped with a "black box," which contains a tape that records the train's speed, the time of day, the distance travelled, and the use of the train's braking systems. A printout of this information that was produced after the accident indicated that the train's speed at the time of impact was 48 m.p.h. Lehman Edgeworth, a Burlington trainmaster, testified that the printout indicated that immediately prior to the impact the train had been travelling at 50 m.p.h. Edgeworth also testified that the tape had a margin of error of plus or minus 5 m.p.h.
The accident occurred at 3:15 p.m. as William Whitt ("Whitt") travelled east on Highway 102 and across the tracks at the Townley-102 crossing and as the train was proceeding north. Thus, Whitt approached the crossing from the left side of the tracks, as viewed from the perspective of the train's crew. Approaching the crossing from the west, Whitt encountered several signs warning of the intersection: (1) A round orange highway sign with a black "X" and the letters "RR"; (2) a set of five speed bumps; (3) a white railroad warning painted on the roadway; (4) a railroad "crossbuck," a large "X" made of two crossed pieces of wood or metal, painted white with black lettering; and (5) red signal lights that are designed to flash automatically when a train approaches. A red stop sign is located on the east side of the railroad tracks, and requires motorists travelling from west to east on Highway 102 to stop at the intersection of Highway 102 and Highway 124; Highway 124 runs parallel to the train tracks near this intersection. Although the stop sign is on the east side of the tracks, the white line painted on the pavement marking the position in which motorists are to stop is located on the west side of the tracks, and, according to one witness, is approximately 20 feet 8 inches from the first rail. Whitt was familiar with this crossing, because his home *1015 was approximately one mile from the crossing, and he and his wife had lived there for 10 years. The plaintiff presented witnesses who testified that traffic at the crossing was fairly heavy on Sunday afternoons.
The train was equipped with headlights and a rotating "Mars" light on the front of the lead locomotive, and all of the lights were operating on the day of the accident. According to the train's crew members, Shalhoop blew the train's whistle and activated the train's air bell at the Moss-McCormick crossing, which is located approximately one-half mile south of the Townley-102 crossing. As the train proceeded northward, it passed a whistle board, a railroad sign indicating to the engineer that he should blow the train's whistle because the train is approaching an intersection, and crew members stated that Shalhoop blew the whistle again at that time. Several of the plaintiff's witnesses stated that they did not hear the train's whistle, or that they did not hear it until immediately before the impact. The defendants presented other witnesses who stated that they heard the whistle as the train approached and prior to the collision.
Whitt was driving a long-nosed tractortrailer truck loaded with steel pipe. He had left his house just before the accident, intending to deliver the pipe for Ligon, for whom he worked. According to the crew members in the lead locomotive, and according to witnesses who approached the intersection in an automobile from the east side of the tracks and were facing Whitt as he approached, Whitt did not stop before he entered the crossing. The witnesses who saw the accident from their automobile testified that the truck slowed down as it neared the tracks, but that it pulled onto the tracks right in front of the train. Upon impact, the trailer separated from the cab, and the cab was pushed 2,046 feet down the tracks before it and the train stopped.
Engineer Shalhoop testified that he first saw Whitt's truck moving toward the crossing as the train approached the whistle board for the Townley-102 crossing, which was about one-half mile away. When he first spotted the truck, Shalhoop said, it appeared to him that it would stop at the crossing. Shalhoop testified that as the truck continued to move toward the tracks and he realized that it was not going to stop, he began blowing the whistle in warning blasts. Shalhoop said that when the truck passed the poles with the red signal lights, he placed the train into "emergency," which triggered all of the braking systems on the train, and he turned off the train's engine. Shalhoop stated that he could not have done anything else to prevent the accident. Shalhoop and conductor Posey testified that even if the train had been travelling at 33 m.p.h. when Whitt drove onto the tracks directly in front of the train, the train could not have been stopped before it struck the tractor-trailer at the crossing.
Whether the red warning lights facing Whitt were operating immediately before and after the impact was a much disputed issue. When the train approached the Townley-102 crossing, Whitt was the only motorist approaching from the west, so no witnesses were able to testify that the warning lights facing that side of the crossing were or were not flashing immediately before the accident. Five young women in an automobile waited at the intersection on the east side of the crossing, facing Whitt, as the train approached. Katrina Geib, the driver of the automobile, testified that as she drove up to the intersection she looked down the tracks and saw the train approaching. She stated that after she saw the train, she checked the signal lights facing her and they were flashing. Ella Barrentine, a friend of Mrs. Whitt's, testified that she lived approximately one block from the Townley-102 crossing at the time of the accident. She stated that she went to the crossing immediately after the accident, and that the signal lights on the west side of the crossing, from which Whitt approached, were not flashing. Anthony Whitt, the decedent's brother, testified that he was about one-half mile from the crossing at the time of the accident, and that he went to the crossing immediately after he heard the crash and saw smoke. He, too, testified that the signal lights on the west side of the crossing were not flashing when *1016 he arrived. Finally, Byas Gilbert testified that after he heard an explosion, he went to the Townley-102 crossing. He stated that the signal lights were not flashing when he arrived, but that a black man walked down the tracks from the direction of the train and entered the signal house next to the tracks and that the lights then began to flash.
The testimony of the defendants' witnesses conflicted on the issue of whether the signal lights were flashing at the time of and after the accident. Alabama State Trooper Steven Stevens testified that the signal lights on the west side of the tracks were flashing when he arrived at the accident scene at 3:34 p.m. to conduct an investigation. Fred Wilkerson, a Townley resident, testified that the signal lights at the Townley-102 crossing were not flashing when he arrived there after the accident, because, he said, the train had travelled past the switch that caused the signal lights to activate automatically. Conductor Guy Posey testified that, after the accident, he walked back to the Townley-102 crossing and that he noticed that the signal lights were blinking. Posey stated that the lights continued to flash because during the accident the bonding wire that activates the signals was broken. R.J. Shields, the signal maintainer for Burlington, also testified that all of the signal lights were flashing at the Townley-102 crossing when he arrived, and that they stopped flashing after he repaired a broken wire. Shields stated that he was the only Burlington employee at the scene with keys to the signal house. Finally, Henry Jackerson, the only black crew member, testified on direct examination that he did not walk back to the Townley-102 crossing after the accident or enter the signal house and activate the signals. On cross-examination, he testified that in a deposition he gave before trial, he had stated that he returned to that crossing and sat down.
Another issue in dispute at trial was whether the "peepholes" on the signal lights, which ordinarily permit the crew members on an approaching train to observe whether the lights facing motorists are flashing, were painted over at the time of the accident. Engineer Shalhoop testified that before the accident he could see through the peepholes of the signals on the east side of the tracks and that he observed that the signal lights were flashing. Trooper Stevens, R.J. Shields, and Burlington's claims representative, Layton Parrish, testified that the peepholes on the signal lights were not painted over on the day of the accident. To contradict the defendants' testimony, the plaintiff introduced photographs of painted peepholes at the Townley-102 crossing. Investigator Roger Argent testified that he photographed the peepholes on May 31, 1988, while the case was being tried before the jury, but also stated that he had viewed the scene two days after the accident, and that the photographs fairly and accurately depicted the condition of the peepholes from October 8, 1985, until the date he photographed the peepholes. Frank Cole, a criminal investigator, stated that he went to the accident scene on the morning of the day he testified and that the pole, fixture, and peepholes on the west side of the tracks appeared to have been painted.
Trooper Stevens interviewed several witnesses at the scene of the accident. He stated that nothing at the crossing obstructed an eastbound motorist's line of vision, and that a motorist could see a little less than a half mile down the track if he stopped at the white stop line painted on the pavement. The trooper also stated that his investigation suggested that the truck crossed the tracks at a slow rate of speed as it approached the intersection of Highways 124 and 102. On cross-examination, the trooper acknowledged that, in conducting his investigation, he spoke only with Burlington employees and that no other witnesses came forward to talk to him.
On October 25, 1985, Burlington sued Ligon and Mrs. Whitt for damage to its train and tracks that resulted from Mr. Whitt's alleged negligence. Mrs. Whitt and Ligon filed counterclaims against Burlington. Mrs. Whitt alleged that Burlington had negligently or wantonly failed to inspect and maintain its railroad crossing and she claimed property damages to the *1017 tractor-trailer of $40,000 and $3 million in punitive damages. She later filed a thirdparty complaint against Burlington employees Shalhoop, Shields, and L.B. Lane, and requested $3 million in punitive damages, claiming that they had acted negligently and/or wantonly and that their acts had caused Whitt's death. Before trial, Ligon paid $50,000 to Burlington as part of a settlement agreement, and Burlington's claims against Ligon and Mrs. Whitt were dismissed. As a result, the remaining parties were realigned, and Mrs. Whitt became the plaintiff. During the trial, the claims against Shields and Lane were dismissed and the case proceeded against Burlington and Shalhoop. The jury returned a verdict in favor of the plaintiff in the amount of $15 million. The trial court denied the defendants' post-trial motions and entered an order in compliance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and its progeny. This appeal followed.
I. The defendants first contend that the trial court erred to reversal by permitting the plaintiff to inquire on voir dire whether any member of the venire was an insurance adjuster. They state that an insurance company was not a party in the case and argue that, under Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala.1986), there was no legitimate basis for the question and that it resulted in ineradicable prejudice. We disagree.
In Alabama Power Co. v. Bonner, 459 So. 2d 827 (Ala.1984), we noted that very wide latitude has been allowed in voir dire examination and that the scope of the examination is left largely to the discretion of the trial judge. After discussing the importance of permitting trial lawyers a broad right to question prospective jurors as to matters that might assist them in determining the qualifications or possible biases of jurors so that the lawyers can intelligently exercise their peremptory strikes, we held that the trial court did not err in allowing the plaintiff to ask whether any member of a venireperson's family worked as an insurance adjuster for any company handling adjustments or worked as a secretary or salesman for any insurance company. Two years later, in Cooper v. Bishop Freeman Co., 495 So. 2d 559 (Ala.1986), the plaintiff objected to the trial court's refusal to ask the venire whether any member was related to any insurance adjuster employed by the insurance companies involved in the case. In holding that the trial court did not err in refusing the plaintiff's request, this Court overruled the majority opinion in Bonner and adopted Justice Beatty's dissent in Bonner. In the Bonner dissent, Justice Beatty expressed dissatisfaction with permitting "a blanket inquiry as to whether any of the venire members have any relatives who work in any capacity for any insurance company," and asserted that such an inquiry had never been permitted in this state. Bonner, 459 So. 2d 827, 835 (Beatty, J., dissenting). However, Justice Beatty also stated that he had no intellectual animosity toward such a change if any justification for it was advanced.
In this case, the plaintiff asked the following question: "Anybody here who is an insurance adjuster?" No member of the venire responded to the question and no follow-up questions were asked. This distinguishes the present case from Cooper, because the voir dire questions requested at trial by the plaintiff in Cooper asked whether any family members were employed by an insurance company. Further distinguishing this case is the fact that, when introducing the parties at defense counsel's table, the defendants introduced Layton Parrish and said he was a "claims agent" for Burlington. Mr. Parrish later identified himself as a senior claims representative, and several such references were made throughout the trial. The defendants claim that ineradicable prejudice resulted from the voir dire question because, they say, it left the jury with the impression that insurance would cover any verdict; however, it seems far more probable that if the jury had such an impression, it was the result of the defendants' decision to seat Mr. Parrish at the defense table and of *1018 their repeated references to him as a "claims representative."
Besides, we believe that the question "Anybody here who is an insurance adjuster?" was proper. It is undisputed that attorneys have the broad right to question venire members as to any matter that might disclose a prospective juror's bias, prejudice, or interest in the outcome of a trial. Inquiries such as whether the venire members or anyone in their families is employed by, for example, a trucking company, a bank, or a railroad, or is self-employed provide useful information about a juror's possible biases and allegiances. Limiting this otherwise broad right to question prospective jurors so as to exclude only the right to ask about insurance impermissibly hinders voir dire examination and is not justifiable. In attempting to strike a fair and impartial jury, attorneys have a legitimate interest in learning about any associations the venire has with the case, including the kind of work the prospective jurors and members of their families engage in.
Landers v. Long, 53 Ala.App. 340, 343, 300 So. 2d 112, 114 (Ala.Civ.App.1974). A general inquiry during voir dire such as the one made in the present case adequately protects the plaintiff's interest in securing an impartial jury and does not inevitably indicate to the venire that insurance is involved in the case. Insofar as the majority opinion in Cooper differs from the views expressed here, it is expressly overruled, and the majority opinion in Alabama Power Co. v. Bonner is again adopted as the law of this State.
Even if we were not convinced that the question is an appropriate one for voir dire examination, we could not reverse because of the trial judge's allowing the question. There was no objection to the question when it was asked. Four additional questions were asked before any objection was made to the question "Anybody here who is an insurance adjuster?" Failure to lodge a timely objection to an improper question asked on voir dire waives the point as error on appeal. C. Gamble, McElroy's Alabama Evidence, § 426.01(3) (3d ed. 1977).
In addition, the trial court offered to instruct the jury so as to avoid any possible prejudice that might have resulted from the question. The defendants expressly rejected this offer.
II. The defendants next argue that the plaintiff made an improper, prejudicial statement during her opening argument and that the court erred in overruling their objection to the statement and their motion for a mistrial. The allegedly improper statement was that the impact of the accident was so great that it tore off the top of Whitt's head. The record contains no evidence to support this statement.
There is a presumption in favor of the trial court's rulings on issues such as this, and we will not reverse on claims of improper argument unless substantial prejudice has resulted. Seaboard Coast Line R.R. v. Moore, 479 So. 2d 1131 (Ala.1985). Immediately before and during the plaintiff's opening argument, the trial judge explained to the jury several times that the attorneys' opening and closing remarks were not evidence and were not to be considered as a basis for the verdict. In his charge to the jury after the evidence was presented, the trial judge also gave thorough instructions explaining that only punitive damages were available in this wrongful death action, and that damages were not to compensate the family for Whitt's death. After carefully reviewing the record, we find that the remark complained of did not have sufficient prejudicial impact to serve as a basis for reversal.
III. Next, the defendants contend that admission of the testimony of a school bus driver, Shelby Nesmith, about a "nearmiss" incident at the Townley-102 crossing two weeks after Whitt's accident, constitutes reversible error. Nesmith testified that she approached the crossing from the west in the school bus, stopped at the white line, and, because she saw and heard nothing, drove forward slowly. Nesmith stated *1019 that when she got onto the tracks, she saw a train but no crossing lights, and that she did not hear a whistle. Nesmith could not estimate how close the train came to hitting her, but stated that it was close enough that it "scared her to death." The defendants point out that Shalhoop was not the engineer of the train involved in the near miss, and they argue that Nesmith's testimony is also inadmissible because, they say, it does not address their knowledge of an allegedly dangerous condition prior to the accident.
This Court has held that evidence of subsequent accidents and injuries is not admissible to prove that a defendant knew of the dangerous condition at the time of the accident that is the basis for the lawsuit. Hyde v. Wages, 454 So. 2d 926 (Ala.1984). However, evidence of other accidents, occurring before and after the accident in question, is admissible on the issue of whether a place was safe if the condition of the place of the accident in suit was substantially the same as it was at the time of the other incident. C. Gamble, McElroy's Alabama Evidence, § 83.01(3) (3d ed. 1977). Furthermore, evidence of the failure of crossing devices at a railroad crossing to operate before or after the accident in suit may be admitted if substantially similar conditions existed at the time of the accident and when the failure of the signals occurred. Annot., 46 A.L.R.2d 930 (1956). The failure of signals at another time can be admitted to show the failure of the signals to operate at the time of the accident, to rebut specific evidence of the defendant railroad that the lights must have been functioning properly, or to show absence of contributory negligence. Id. Decisions as to the admissibility of other accidents are, like decisions regarding the admissibility of evidence in general, largely left to the sound discretion of the trial court; it is within the court's discretion to limit evidence of other occurrences when the evidence offered would divert the jury's attention more than it would serve to enlighten the jury on a question at issue. Murray v. Alabama Power Co., 413 So. 2d 1109 (Ala.1982).
In this case, the evidence regarding whether the warning signals were operating and whether visibility at the crossing was obstructed was in conflict throughout the trial. Nesmith's testimony was relevant and was probative of whether the crossing was dangerous and whether Whitt acted reasonably. The incident about which Nesmith testified occurred two weeks after the accident; this fact permitted an inference of substantial similarity of conditions. Nesmith also testified that she was familiar with the crossing and that conditions at the time of her near-miss were substantially similar to those that existed at the time of the accident. While the evidence may have been of limited probative value, its admission, under these circumstances, did not constitute reversible error.
IV. The defendants also argue that testimony about painted peepholes at the crossing and photographs depicting the peepholes should not have been admitted. Frank Cole, a criminal investigator, stated that he visited the Townley-102 crossing on the morning of his testimony at trial. He testified that he looked at the pole with flashing signal lights located on the west side of the tracks and that it appeared that the pole, the fixture, and the peepholes had been painted. The defendants argue that the testimony was unfounded and that Cole was never qualified as an expert.
Several of the defendants' witnesses testified that the poles and peepholes had not been painted, so Cole's testimony was admissible as rebuttal. The plaintiff did not present Cole as an expert; he merely testified as a lay witness that he looked at the poles and that they appeared to have been painted. In Wright v. Rowland, 406 So. 2d 830 (Ala.1981), we held that the trial court did not err when it permitted a lay witness to testify that skidmarks he observed were not fresh, but were a day or two old. We stated there:
406 So. 2d at 830. We also noted in Rowland that the witness's statements were a shorthand rendition of the collective facts, and that that, too, precluded a finding of error. For these reasons, the trial court here did not err in admitting Cole's testimony.
The defendants also claim error in the admission of testimony by investigator Roger Argent and the admission of certain photographs depicting the painted peepholes on signal lights at the Townley-102 crossing. Argent testified that he was at the crossing on October 8, 1985, and observed the signal lights at that time. He stated that he had returned to the crossing several times, and that on May 31, 1988, he took photographs of the peepholes. He further testified that the photographs fairly and accurately depicted the way the lights looked from October 1985 until the day of trial. The defendants objected to admission of the photographs, on grounds that a proper predicate had not been laid. The trial court sustained the objection initially, but admitted the photographs over objection when the plaintiff offered them a second time. The defendants now contend that the photographs were inadmissible because Argent did not testify that they accurately depicted the condition of the peepholes from October 6, 1985, the date of the accident, to the day of trial.
It is well established that the admissibility of a photograph is left to the sound discretion of the trial court and that its decision will not be reversed except on a showing of an abuse of that discretion. Harrison v. Woodley Square Apartments, Ltd., 421 So. 2d 101 (Ala.1982). A photograph is relevant and admissible in order to explain and apply the evidence when it will enable the court and the jury to better understand the conditions or matters in issue. Olympia Spa v. Johnson, 547 So. 2d 80, 82 (Ala.1989). Argent testified that he viewed the scene soon after the accident and that the photographs were a correct depiction of the scene at that time. Admittedly, the photographs may have had limited probative value; however, we are unable to say that the trial court abused its discretion in allowing them into evidence.
V. The defendants raise several issues relating to the court's charge to the jury. They argue, first, that the trial court erroneously emphasized wantonness to the jury. Specifically, they point to the judge's statement to the jurors that if he were making notes in the case, he would write the terms "simple negligence," "contributory negligence," and "wantonness," and he would draw lines to separate them. The judge's suggestion of line-drawing was nothing more than a recommendation designed to facilitate the jurors' understanding of the complex instructions and theories involved. This did not place undue or prejudicial emphasis on the issue of wantonness.
The defendants also argue that the court erroneously instructed the jury, in several of its charges, that excessive speed through a "populous crossing" is sufficient to support a claim for wantonness. They argue that the court failed to include in the charges a statement that the plaintiff had to demonstrate that engineer Shalhoop knew of the character of the crossing at the time of the accident and consciously operated the train at an excessive speed and without warning of its approach.
In examining a trial court's instructions to a jury, a court of review considers the challenged instructions as a part of the entire charge, and if the charge as a whole states the law correctly, there is no reversible error. Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). We have reviewed the complete oral charge to the jury and find that it adequately informed the jury of the relevant legal principles associated with the wantonness issue. In context, the total charge does not instruct that wantonness is proved merely by showing excessive speed at a populous crossing.
Finally, the defendants contend that the court erred in failing to give their requested charge on proximate cause and wantonness. *1021 The defendants argue that the following instruction should have been given:
We have examined the court's charge to the jury and have determined that the principles of law in the requested charge were encompassed adequately in the court's oral charge. Therefore, we find that reversal is not mandated on grounds that the jury was not properly charged.
VI. The defendants next argue that the verdict is against the weight of the evidence; more specifically, they claim that no evidence of wantonness was presented and that the evidence established instead that Whitt was contributorily negligent. Regarding proof of wantonness, the defendants argue that the plaintiff failed to show that Shalhoop was consciously exceeding the speed limit while failing to give proper warnings and failed to show that he acted with the knowledge that at 3:15 on a Sunday afternoon, motorists would be on the Townley-102 crossing. Regarding contributory negligence, they argue that they demonstrated that, as a matter of law, the proximate cause of the accident was contributory negligence on the part of Mr. Whitt and, therefore, that the court erred in denying their motion for a directed verdict and their alternative JNOV/new trial motion.
A court of review accords a jury verdict, supported by the evidence, a strong presumption of correctness. Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala.1988). This presumption is strengthened by the trial court's denial of a motion for a new trial. Howard v. Crowder, 496 So. 2d 31 (Ala.1986). In the review of a jury verdict, a court must consider the evidence in the light most favorable to the prevailing party, and must set aside a verdict only if it is shown to be plainly and palpably wrong. Campbell v. Burns, 512 So. 2d 1341 (Ala.1987).
Our thorough review of this record does not convince us that the jury's verdict is plainly and palpably wrong so that its reversal is required. To the contrary, significant evidence was presented, which, if believed by the jury, thoroughly supported the verdict. The defendants correctly point out that a finding of wantonness requires proof that the defendant acted with knowledge of the danger or with consciousness that injury was likely to result from an act or an omission to act. Central Alabama Elec. Coop. v. Tapley, 546 So. 2d 371 (Ala.1989). The jury could have found that the train approached the crossing at a speed in excess of its company's rules, that the engineer was familiar with this crossing because he travelled through it six days per week, and that he did not blow the train's whistle or activate the train's braking systems until shortly before the impact. The jury could have found also that an eastbound motorist's line of vision down the tracks was obstructed, that the peepholes on the flashing signals were covered with paint, and that the signal lights on the west side of the crossing were not flashing when Mr. Whitt crossed. There was, without a doubt, substantial evidence of wantonness, and we hold that the issue was properly submitted to the jury.
Similarly, the issue of contributory negligence is one for the jury when there is evidence to support a claim of contributory negligence. Tapley, supra. To prove contributory negligence, a defendant must show that the plaintiff knew of the condition, appreciated the danger of the circumstances at the moment the incident occurred, and placed himself in danger's way. Watters v. Bucyrus-Erie Co., 537 So. 2d 24 (Ala.1989). Only when the facts are such that all reasonable men must reach the same conclusion can contributory negligence be found as a matter of law. Watters. As discussed above, the evidence conflicted and the conflicts were for the *1022 jury to resolve. The jury could have believed that, although Whitt was familiar with the crossing, he was unaware as he approached it on October 6 that the train was nearing the intersection because his view down the tracks was obstructed, because the signal lights were not flashing to warn of the approach, and/or because the train's whistle was not blowing. If the jury believed these facts to be true, it could have found that, when easing forward onto the tracks, Whitt did not appreciate the danger or fail to exercise reasonable care. In short, there was sufficient evidence to defeat the defense of contributory negligence, and the issue was properly submitted to the jury for its resolution.
There was credible evidence to support the jury's verdict. The evidence presented at trial on many of the issues was in direct conflict. It was for the jurors, who heard the evidence and saw the demeanor of the witnesses, to determine what the facts were. Because we cannot say that the verdict was against the great weight of the evidence, it will not be set aside.
VII. The final argument advanced by the defendants is that the verdict is excessive. They say "for such a simple, routine crossing accident, this fifteen million dollar verdict is on its face, defective." They advanced the same argument in support of their motions for JNOV or new trial. The trial court held a hearing on those motions, as required by Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and entered the following order:
Burlington renews in this Court its argument that the award is excessive and asks that it be reduced. The trial court has followed the Hammond guidelines and has found no reason to interfere with the verdict of the jury.
However, that does not relieve this Court of its responsibility to consider whether the award is excessive. As the only appellate court with the ability to assure some degree of uniformity in the area of punitive awards, we must also determine whether the award is excessive when compared to awards in similar cases. Having considered the record in this case, and having compared verdicts in similar cases that have come to this Court, we are of the opinion that the award of $15 million is excessive and should be reduced by $10 million. We therefore affirm the judgment of the trial court on the acceptance of a remittitur of $10 million by the plaintiff, Mrs. Whitt, within 30 days of the date of this opinion (September 21, 1990), which will result in a judgment in her favor of $5 million.
Accordingly, the judgment of the trial court is affirmed, conditioned upon the plaintiff's acceptance of the remittitur of $10 million as ordered by this Court.
AFFIRMED CONDITIONALLY.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | September 21, 1990 |
caafbcc9-d731-414f-8644-7ad883a9b96e | Yarchak v. Munford, Inc. | 570 So. 2d 648 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 648 (1990)
George YARCHAK, as father and administrator of the estate of David Everett Yarchak
v.
MUNFORD, INC., et al.
88-1652.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied November 9, 1990.
G. Daniel Evans, Birmingham, for appellant.
Donald D. Lusk of McDaniel, Hall, Conerly & Lusk, Birmingham, for Munford, Inc., et al.
George Cocoris, Gen. Counsel, and Craig A. Donley, Asst. Gen. Counsel, for State of Ala. Dept. of Indus. Relations.
J. Victor Bowman of Burnham, Klinefelter, Halsey, Jones & Cater, Anniston, and Ollie L. Blan, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for amicus curiae Alabama Defense Lawyers Ass'n.
Stephen E. Brown and Stephen C. Jackson of Maynard, Cooper, Frierson & Gale, Birmingham, for amici curiae Business Council of Alabama Workers Compensation Self Insurers Fund, Alabama Hosp. Ass'n Workers Compensation Self Insurers Fund, Alabama Forestry Ass'n Workers Compensation Self Insurers Fund, and Auto. Dealers Ass'n of Alabama Workers Compensation Self Insurers Fund.
STEAGALL, Justice.
George Yarchak, as administrator of the estate of his son, David Everett Yarchak, appeals from the judgment dismissing the complaint as to Munford, Inc., and Majik Market, a division of Munford, Inc., as well as from the summary judgment for the attorney general in Yarchak's suit seeking damages for the wrongful death of his son and a judgment declaring that the exclusive remedy provisions of the Workmen's Compensation Act (hereinafter referred to as "the Act"), Ala.Code 1975, §§ 25-5-52 and -53, are unconstitutional.[1]
*649 David Yarchak was employed by Munford, Inc., as a clerk in one of its Majik Market convenience stores in Birmingham. While David was working at the store on November 26, 1988, he was shot to death by an unknown assailant. David left no spouse or dependents.
On appeal, George Yarchak argues that the Act violates Article 1, §§ 1 and 13, of the Alabama Constitution (1901) and the equal protection clause of the 14th Amendment to the United States Constitution because it limits the benefits available to the estates of employees who die leaving no dependents to funeral and medical expenses, while it provides substantially higher compensation to employees who are merely injured or who die leaving dependents.[2]
This precise issue was raised recently in Landers v. O'Neal Steel, Inc., 564 So. 2d 925 (Ala.1990); however, this Court affirmed the summary judgment for O'Neal Steel and the attorney general on procedural grounds and, thus, did not address the constitutional argument.[3]
This Court has previously upheld various provisions of the Act in the face of constitutional challenges, most recently in Ex parte Adkins, 565 So. 2d 633 (Ala. 1990). In that case, David Adkins argued that Ala. Code 1975, § 25-5-57(a)(4), which allows an employer, under certain circumstances, to request a review of a workmen's compensation claim following final adjudication, was unconstitutional because it did not provide the employee with the same right. Applying the "rational basis" test, this Court disagreed, holding that the classification was rationally related to the legislative purpose of giving employers an economic incentive to rehabilitate employees.
Another recent case, Reed v. Brunson, 527 So. 2d 102 (Ala.1988), upheld the validity of Ala.Code 1975, § 25-5-11(c)(1), which limits actions against co-employees to those based on willful conduct that results in injury or death. In that case, we applied both the vested rights approach and the common law rights approach in determining that § 25-5-11(c)(1) did not violate § 13 of the Alabama Constitution.
Yarchak argues that a wrongful death action is common law in nature and that, as such, its removal as a remedy by the exclusivity provisions of the Act is subject to the two-pronged analysis enunciated by Justice Shores in her opinion concurring in the result in Fireman's Fund American Ins. Co. v. Coleman, 394 So. 2d 334 (Ala.1980), and applied in Reed v. Brunson, supra.
We disagree with that argument. This Court has consistently held that wrongful death actions are statutory, Downtown Nursing Home, Inc. v. Pool, 375 So. 2d 465 (Ala.1979), cert. denied, 445 U.S. 930, 100 S. Ct. 1318, 63 L. Ed. 2d 763 (1980), and, therefore, that they may be modified, limited, or repealed as the legislature sees fit. Slagle v. Parker, 370 So. 2d 947 (Ala.1979).
Slagle v. Parker held that the legislature could abolish an employee's right to bring a wrongful death action against a co-employee because a cause of action for wrongful death did not exist at common law. "Where common-law rights are altered or abolished, this Court will review such legislation more strictly than normal. Where no common law right is affected, a *650 judicial deference to the legislature is required; however, the legislation may not be arbitrary or capricious." Lankford v. Sullivan, Long & Hagerty, 416 So. 2d 996, 1000 (Ala.1982). Thus, we must decide whether the Act's preclusion of a cause of action for wrongful death (see §§ 25-5-52 and -53) is arbitrary or capricious.
It is apparent that the Act is designed to financially aid an employee and/or his dependents in the event of a job-related injury or death. In that regard, this Court has written:
United States Steel Corp. v. Baker, 266 Ala. 538, 545, 97 So. 2d 899, 905 (1957) (quoting Tierney v. Tierney & Co., 176 Minn. 464, 223 N.W. 773 (1929)).
Compensation any greater than thatin the form of benefits to or a cause of action for wrongful death by the estate of an employee who leaves no dependents would clearly exceed the purpose of the Act. As Justice Maddox stated in his special concurrence in Johnson v. Ralls, 286 Ala. 565, 571, 243 So. 2d 673, 677 (1970), "the wisdom of allowing the personal representative of a deceased employee who leaves no dependents to maintain a wrongful death action against the deceased employee's employer is for the legislature, not for this Court."
The nature of workmen's compensation awards has been explained as follows:
1 A. Larson, Larson's Workmen's Compensation Law § 2.60, at 12-13 (1990) (emphasis added).
Finally, we note that Pipkin v. Southern Electrical & Pipefitting Co., 358 So. 2d 1015 (Ala.1978), held that the 1973 amendments to the Act did not affect the elective aspect of the Act, only the procedures governing whether the employer and employee will be bound by the Act.
Based on the foregoing analysis, we find that §§ 25-5-52 and -53 of the Act are not arbitrary or capricious and that they do not violate Article I, § 13, of the Alabama Constitution.
With regard to Yarchak's equal protection argument, we recognize initially that, because no suspect class is involved, that portion of the Act that limits benefits available to the estates of employees who die leaving no dependents to funeral and medical expenses must have a rational basis to withstand constitutional scrutiny. Reed v. Brunson, supra. If the legislation is rationally related to a legitimate state interest, it will be sustained. Ex parte Adkins, supra.
Alaska's workmen's compensation act has similar provisions pertaining to exclusivity and funeral and medical benefits for the estates of employees who die without dependents. That state's supreme court resolved the same issue as is presented here, as follows:
Taylor v. Southeast-Harrison Western Corp., 694 P.2d 1160, 1162-63 (Alaska 1985) (emphasis added). Two other jurisdictions have reached the same result. See Casillas v. S.W.I.G., 96 N.M. 84, 628 P.2d 329 (Ct.App.1981), cert. denied, 96 N.M. 116, 628 P.2d 686 (N.M.1981), appeal dismissed, 454 U.S. 934, 102 S. Ct. 467, 70 L. Ed. 2d 242 (1981), and Padilla v. Industrial Commission of Colorado, 696 P.2d 273 (Colo.1985). See, also, Lackey v. Jefferson Energy Corp., Inc., 439 So. 2d 1290 (Ala.Civ.App.1983) (holding that Slagle v. Parker, supra, foreclosed the argument that § 25-5-52 and -53 are unconstitutional).
We conclude that the classification at issue here is rationally related to a legitimate state interest: to provide, after an employee's death, only for those individuals who were dependent upon the decedent's salary when he or she was alive. Thus, the dismissal as to Munford, Inc., and Majik Market and the summary judgment for the attorney general are affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
JONES, J., concurs specially.
JONES, Justice (concurring specially).
I agree that the Alabama Workmen's Compensation Act is constitutional. I further agree that, where a worker is killed by an accident arising out of and in the course of his employment, but is not survived by dependents, Article 3 of the Act does not provide a no-fault remedy. The only no-fault recovery is provided by Ala.Code 1975, § 25-5-67 ($1,000 for burial expenses).
The determination of whether a fault-based remedy is available outside the coverage of Article 3 is governed by the exclusivity clause of § 25-5-53. In its limitation-of-remedies provision, § 25-5-53 contains the following exception: "Except as provided in this article [Article 3] and article 2...." (Emphasis added.) Because it excepts those remedies provided in Articles 2 and 3, it is clear that the exclusive-remedy provision clearly does not apply to those remedies, if any, provided in either Article 2 or Article 3.
Having determined that Article 3 does not provide a no-fault remedy, and that the lack of such a remedy (due to the lack of dependents of the deceased employee) does not impugn its constitutional validity, we must next test the plaintiff's claim against the fault-based remedy provided in Article 2.
Section 25-5-30 defines the scope of Article 2: "This article shall not apply in cases where article 3 of this chapter becomes operative in accordance with the provisions thereof, but shall apply in all other cases, and in such cases shall be an extension or modification of the common law."
Without dispute, because of the deceased employee's lack of dependents, Article 3 provides no remedy for the employee's death. Stated otherwise, Article 3 imposes no liability on the employer for compensation under these circumstances. (To state the obvious, the payment of funeral expenses, which is due whether or not the deceased employee leaves any dependents, is not "compensation.") For a case allowing a common law or statutory remedy *652 outside the coverage of the workmen's compensation act, see Gentry v. Swann Chemical Co., 234 Ala. 313, 174 So. 530 (1937).
Section 25-5-31 defines the remedy provided by Article 2:
Contrary to the no-fault remedy provided by Article 3, which would apply but for the deceased employee's lack of dependents, the remedy provided by Article 2 is based upon the concept of fault. One other significant difference between the respective remedies provided by Article 2 and Article 3 lies in the capacity of the plaintiff who is authorized to sue for a job-related death. Article 3 makes no provision for recovery by any person other than a dependent, who may prosecute for death benefits without the necessity of being appointed as the personal representative of the deceased employee's estate. (As we have seen, this is the very rationale for rejecting this plaintiff's claim for compensation under Article 3's nonculpability concept.)
On the other hand, under Article 2, the personal representative, for the benefit of the spouse and next-of-kin, is the only person authorized to prosecute the statutory tort claim against the employer. The ultimate test of Article 2's application, then, is to examine the plaintiff's statement of the claim against the fault-based remedy provided by § 25-5-31. A careful study of the record, as well as of the plaintiff's brief, reveals that the only claim asserted is a claim alleging wrongful death, brought pursuant to § 6-5-410.
Indeed, for the purposes of arguing for the constitutional invalidity of the exclusive remedy provision, the plaintiff's counsel, in brief, takes the position that Article 2 "has no field of operation." To the contrary, it is for the very reason that the "exclusive remedy" provision excepts Article 2 from its application, thus giving Article 2 a field of operation that the plaintiff's constitutional argument fails.
Therefore, I concur in the opinion to affirm the judgment. See, also, my special concurring opinion in Hughes v. Decatur General Hospital, 514 So. 2d 935 (Ala. 1987).
[1] Although Yarchak's complaint did not seek funeral or medical benefits pursuant to Ala. Code 1975, §§ 25-5-67 and -77, Munford, Inc., contends that it paid those expenses on David Yarchak's behalf. The record, however, is silent with regard to the validity of that contention.
[2] Article I, § 1, is Alabama's equivalent to the equal protection clause of the 14th Amendment to the United States Constitution, and it reads "[t]hat all men are equally free and independent; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty and the pursuit of happiness." Article I, § 13, states "[t]hat all courts shall be open; and that every person, for any injury done him, in his lands, goods, person, or reputation, shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."
[3] Landers failed to rebut O'Neal Steel's prima facie showing that it was entitled to a judgment as a matter of law. He also failed to serve the attorney general with notice, pursuant to Ala. Code 1975, § 6-6-227, that he was challenging the constitutionality of a state statute. In this case, Yarchak did serve the attorney general with such notice. | September 28, 1990 |
3babe0bc-d609-402e-b0d6-3030d4b11e4e | Dixon v. SouthTrust Bank of Dothan, NA | 574 So. 2d 706 | N/A | Alabama | Alabama Supreme Court | 574 So. 2d 706 (1990)
Robert E. DIXON
v.
SOUTHTRUST BANK OF DOTHAN, N.A., and Pierce Flatt.
89-608.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied January 11, 1991.
William B. Jackson II and James E. Atchison of Hess, Atchison & Horne, Mobile, for appellant.
James D. Farmer of Farmer & Farmer, Dothan, for appellees.
*707 HORNSBY, Chief Justice.
SouthTrust Bank of Dothan, N.A. ("SouthTrust"), sued Robert Dixon for payment on a promissory note that he had co-signed with Gary and Karen DeKay, which was in default. Dixon counterclaimed against SouthTrust and filed a third-party complaint against SouthTrust's chief executive officer, Pierce Flatt, alleging fraud. Prior to trial on SouthTrust's suit on the debt, the trial court entered summary judgment for SouthTrust and Flatt on the fraud claim; Dixon appealed. We reverse.
Karen and Gary DeKay wanted to purchase Louise Interiors, Inc., from its owner. Initially the DeKays attempted to finance their purchase of the business themselves through SouthTrust. Flatt advised the DeKays that they would need someone with more collateral to co-sign with them on the promissory note. The DeKays approached Robert Dixon about helping them to finance the purchase of the business. After some initial discussions with Flatt regarding what financing conditions would be acceptable, Dixon agreed to help the DeKays finance the purchase of the business.
On September 17, 1980, Dixon and the DeKays met with Flatt, at Flatt's SouthTrust office, for the purpose of executing the promissory notes, personal guarantees, and security agreements related to financing the purchase of Louise Interiors, Inc. Flatt handed Dixon various documents, including two promissory notes, a security agreement, and a personal guaranty agreement in favor of SouthTrust. These documents listed as security for the loan the inventory, the accounts receivable, all furniture and fixtures, and the stock of Louise Interiors, Inc., as well as certain of Dixon's certificates of deposits. These documents, however, did not contain any mention of what, if any, of the DeKays' personal property secured the loan.
We note that the facts are disputed regarding what was said between Dixon and Flatt about the use of the DeKays' personal property as security. Because this is an appeal from a summary judgment, all doubts concerning the existence of a genuine issue of material fact will be resolved in favor of the nonmovant, Dixon. Kizziah v. Golden Rule Ins. Co., 536 So. 2d 943, 945 (Ala.1988). Dixon alleges that he planned only to invest in the business, not to manage it. Dixon also alleges that he told Flatt that he would co-sign the notes only if the DeKays used a significant amount of their personal property as security for the financing. Dixon explained to Flatt that his reason for insisting upon this condition was that he did not want to enter into any financing agreement unless the DeKays put up a significant amount of their property as security to serve as an incentive for them to manage the business in a sound manner.
After reading over the loan documents, Dixon refused to sign them because the documents that Flatt had given him did not mention any of the DeKays' personal property as security for the loan. Dixon then asked Flatt specifically what personal property SouthTrust held as security for the loan. The alleged fraud in this case occurred when Flatt assured Dixon that SouthTrust held the DeKays' homes, automobiles, boat, jewelry, furs, and antiques as collateral. Dixon claims that he then signed the loan documents, in reliance upon Flatt's assurance that SouthTrust had indeed secured the loan with those items. However, SouthTrust had not secured the loan with any of the DeKays' personal property. Dixon alleges that the only reason he signed the documents was Flatt's assurances that the loan was secured with the DeKay's personal property.
Subsequently, Louise Interiors, Inc., ceased doing business and the note went into default. The assets of Louise Interiors, Inc., were sold at a liquidation sale, pursuant to the security agreement executed by Flatt, Dixon, and the DeKays on September 17, 1980. The proceeds derived from that sale, and the certificates given by Dixon as security, were insufficient to satisfy the debt. SouthTrust then called upon Dixon and the DeKays to pay the balance due on the note. After they refused *708 to do so, SouthTrust sued them in the Circuit Court of Houston County.
Shortly thereafter, the DeKays filed a suggestion of bankruptcy in the trial court, and they were later dismissed from the suit. Dixon filed a counterclaim against SouthTrust, alleging that Flatt, as agent for SouthTrust, had fraudulently induced him to sign the loan documents. Dixon also filed a third-party complaint against Flatt personally. SouthTrust and Flatt moved for summary judgment on three grounds: First, that the statute of limitations barred Dixon's fraud claim; second, that evidence of Flatt's representations was inadmissible as parol evidence; and third, that Dixon's reliance on Flatt's representations was unjustified.
The trial court entered summary judgment in favor of SouthTrust and Flatt, without stating its reasons, and certified the judgment as final pursuant to Rule 54(b), A.R.Civ.P. This appeal followed.
Because Dixon's claims were pending on July 11, 1987, the applicable standard of review is the "scintilla rule." Ala.Code 1975, § 12-21-12. Summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Kizziah v. Golden Rule Ins. Co., 536 So. 2d 943 (Ala.1988). Once the moving party makes a prima facie showing that no genuine issue of material fact exists, then the nonmovant must show that there is at least a scintilla of evidence in his favor. Rutley v. Country Skillet Poultry Co., 549 So. 2d 82 (Ala.1989).
Prior to January 9, 1985, the statutory period of limitations applicable in a fraud action was one year, as provided by Ala.Code 1975, § 6-2-39.[1] A claim for fraud accrues at the time of "the discovery by the aggrieved party of the fact constituting fraud." § 6-2-3. Dixon signed the loan documents on September 17, 1980. However, the evidence in the record would support a finding by a jury that Dixon learned that SouthTrust had no security interest in any of the DeKays' personal property only after the DeKays had filed for bankruptcy in June 1982. Therefore, a jury could have found that Dixon did not discover the facts constituting the fraud until June 1982, and that the statutory limitations period did not begin to run until that date. Dixon filed this fraud claim on September 26, 1982. Consequently, a jury could find that Dixon's fraud claim was filed well within the one-year period allowed by the statute of limitations.
SouthTrust and Flatt also argue that the parol evidence rule prohibits introduction of any evidence of Flatt's alleged misrepresentations. Dixon's counterclaim and third-party complaint allege that Flatt fraudulently induced him into signing the loan documents. Under Alabama law, an action alleging fraud in the inducement is an action in tort, and in such a case the parol evidence rule does not apply. In Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746, 748 (Ala.1990), this Court stated that in Alabama the parol evidence rule applies to actions in contract and not actions in tort, and that parol evidence is admissible to show that a written agreement was procured by fraud. Id. at 748.
We have long made this distinction between tort and contract actions. The law in Alabama concerning the admissibility of evidence regarding fraudulent representations employed to obtain assent to a contract has been correctly stated as follows:
Richard Kelly Chevrolet Co. v. Seibold, 363 So. 2d 989, 993 (Ala.Civ.App.1978) (emphasis added). See Crispell v. Sunbelt Chrysler Plymouth, Inc., 544 So. 2d 939 (Ala.1989); and Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 101 So. 2d 78 (1957).
The law in Alabama has traditionally allowed an aggrieved party wide latitude in proving fraud. The public policy behind this rule is that a party who has been the victim of fraud should not be denied redress simply because he justifiably relied upon the representations of someone who turned out to be misrepresenting the facts. Dixon's evidence regarding SouthTrust's representations is therefore not barred by the parol evidence rule.
SouthTrust and Flatt also argue that Dixon could not have justifiably relied upon any of Flatt's alleged representations because they were contrary to the documents that Dixon signed. In Hickox v. Stover, 551 So. 2d 259 (Ala.1989), this Court set forth the standard by which a person's reliance on a fraudulent representation will be assessed:
"In light of modern society's recognition of a standard of business ethics that demands that factual statements be made carefully and honestly,
"`[r]eliance should be assessed by the following standard: A plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant's representation if that representation is "one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth."'"
Id. at 263 (quoting Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1092 (Ala. 1989) (Hornsby, C.J., concurring specially). This Court has abandoned the standard of "reasonable reliance," whereby a party making a false statement was not liable in a fraud action if the person defrauded had not acted "reasonably" in relying on the fraudulent statementi.e., if the plaintiff, having had reason to suspect a fraud, had not investigated to ascertain the truth of the statement.
In this case none of the documents that Dixon signed purported to even address the issue of what, if any, of the DeKays' personal property secured the loan. Flatt's representations could not have been patently or obviously false because there was nothing in the documents to contradict his representations. Therefore, Dixon could have justifiably relied upon Flatt's representations concerning the use of the DeKays' personal property as security for the loan in determining whether to enter into the financing arrangement. We conclude that all of the alleged misrepresentations are material and that they are admissible as to Dixon's fraud claim. Based on the foregoing analysis, we reverse the grant of partial summary judgment in favor of SouthTrust and Flatt and remand this case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
JONES, SHORES, ADAMS and KENNEDY, JJ., concur.
HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
Because I would affirm the judgment in this case, I respectfully dissent.
Both of the promissory notes signed by Dixon read, in pertinent part, as follows:
"The obligors shall be jointly and severally liable for all indebtedness represented by this note and have subscribed their names hereto without condition that anyone else should sign or become bound hereon and without any other condition *710 whatever being made." (Emphasis added.)
In addition, the personal guaranty agreement that he signed provided, in pertinent part, as follows:
Dixon was an intelligent businessman and was not prevented in any way from reading these loan documents.
SouthTrust Bank and Flatt moved for a summary judgment, relying primarily on the loan documents, the two depositions given by Dixon, and the affidavit of Flatt. SouthTrust and Flatt argued, among other things, that the undisputed facts showed that they were entitled to a judgment as a matter of law. Dixon opposed the motions, relying primarily on his depositions, his own affidavit, and the depositions of the DeKays. SouthTrust and Flatt objected to Dixon's affidavit and certain portions of the depositions on which he relied,[2] on the ground that they were not admissible evidence and, therefore, that they were in violation of Rule 56, A.R.Civ.P. Dixon contends, among other things, that the trial court erred in entering the summary judgment, because, he says, he presented sufficient evidence, i.e., at least a "scintila," to establish a prima facie case of fraud in the inducement. SouthTrust and Flatt argue now, as they did in the trial court, that they were entitled to a judgment as a matter of law. They maintain that the undisputed facts show that proof as to at least one of the elements of Dixon's claims is missing. After carefully reviewing the record and the briefs of the parties, I am persuaded that the trial court properly entered the summary judgment. As the following discussion will show, my conclusion in this regard is based upon my determination that there is no genuine issue of material fact as to one of the elements of Dixon's fraud claimsi.e., that it is clear that one of the elements could not be proven at trialand, therefore, that SouthTrust and Flatt were entitled to a judgment as a matter of law. Accordingly, I pretermit any discussion of the other issues raised by the parties.
The elements of actionable fraud based on a false representation are: (1) a duty to speak the truth; (2) a false representation of a material fact made intentionally, recklessly, or innocently; (3) action upon the false representation by the plaintiff; and (4) damages proximately resulting from the false representation. Salter v. Alfa Insurance Co., 561 So. 2d 1050 (Ala.1990); Alfa Mutual Insurance Co. v. Northington, 561 So. 2d 1041 (Ala.1990).
The promissory notes, along with the personal guaranty agreement signed by Dixon, were introduced by SouthTrust and Flatt in support of their motions for summary judgment; they made a prima facie showing that Dixon did not act upon any representations that may have been made by Flatt concerning the amount of collateral that was to be provided by the DeKays. By signing those documents, Dixon acknowledged that there were no conditions to his incurring the debt. After this prima facie showing was made, the burden shifted to Dixon to show by admissible evidence that a genuine issue of material fact existed. Perry v. Mobile County, 533 So. 2d 602 (Ala.1988). Horner v. First National Bank of Mobile, 473 So. 2d 1025, 1027 (Ala.1985) ("[i]t is not enough that the opposing party merely disputes or refutes an immaterial fact, nor is it enough that evidence which is inadmissible ... is advanced to contravene that of the movant").
Dixon relied primarily on his own depositions and on the depositions of the DeKays to establish a triable issue of fact. In his *711 depositions, Dixon testified that he had signed the notes and the other loan documents only because Flatt had assured him that the DeKays were giving sufficient collateral to secure payment of the debt. Dixon's testimony in this regard was supported by the deposition testimony of the DeKays. As previously noted, however, SouthTrust and Flatt objected to this evidence on the ground that it was inadmissible under both the parol evidence rule and the general rule requiring exclusion of immaterial evidence, and asked the trial court not to consider it. The record does not reveal whether the trial court considered this evidence; however, if the evidence was inadmissible, then this Court, in determining whether summary judgment was proper, must assume that the trial court did not consider it. McMillian v. Wallis, 567 So. 2d 1199 (Ala.1990).
A "material fact," in the context of a fraud action, is a fact that is capable of reasonably inducing someone to act. Fraser v. Reynolds, [Ms. 88-1466, -1522, September 14, 1990] (Ala.1990); Alfa Mutual Ins. Co., supra; see, also, Lawson v. Cagle, 504 So. 2d 226 (Ala.1987); Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985). In Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989), a majority of this Court, quoting Chief Justice Hornsby's opinion concurring specially in Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1092 (Ala.1989), approved the following standard by which a person's action on a representation has to be assessed:
"`[r]eliance should be assessed by the following standard: A plaintiff, given the particular facts of his knowledge, understanding, and present ability to fully comprehend the nature of the subject transaction and its ramifications, has not justifiably relied on the defendant's representation if that representation is "one so patently and obviously false that he must have closed his eyes to avoid the discovery of the truth."'"
Later, this Court explained that under both the Hickox standard, and the "reasonable reliance" standard most closely associated with Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757 (Ala.1983), a person who is under a legal duty to read and to fully understand the nature of a transaction,[3] and who signs a contract containing language that is clearly contrary to a pre-execution parol representation,[4] cannot, as a matter of law, act on that representation. See Ramsay Health Care, Inc. v. Follmer, 560 So. 2d 746 (Ala.1990). Therefore, in holding that an oral representation that is made before the execution of a written contract to the contrary is not legally capable *712 of inducing action on the part of someone who is under a legal duty to read and to fully understand the nature of the transaction, this Court has, in effect, taken the position that, where those circumstances exist, evidence tending to prove such a representation is not material to a claim of fraud in the inducement (i.e., that evidence of such a representation is legally insufficient to prove a false representation of material fact) and should be disregarded. For example, in Tyler v. Equitable Life Assurance Society of the United States, 512 So. 2d 55 (Ala.1987), this Court held, as a matter of law, that it was not reasonable for the plaintiffs to rely on an alleged representation that had been made prior to the execution of, and that was contradicted by, a note and mortgage.
The position taken in Tyler is different from the position that this Court has taken in the past when considering what effect a subsequent written contract has on a pre-execution parol representation. For example, in Alabama Machinery & Supply Co. v. Caffey, 213 Ala. 260, 262, 104 So. 509, 511 (1925), this Court, holding that evidence of a parol warranty was admissible, stated:
It is hard to reconcile the positions taken by this Court in Caffey and in Tyler. In Caffey, this Court refused to hold the trial court in error for admitting evidence of a parol warranty, even though the plaintiff was a party to a written contract clearly stipulating that such a warranty had not been made. In Tyler, this Court held that the note and mortgage rendered the oral representation of the defendant's agent insufficient as a matter of law to prove the fraud alleged, even though it does not appear that any objection was made to the admission of evidence of that representation. The need to reach some common ground between these two positions is obvious. This Court cannot abandon the desirable goal of maintaining stability and certainty in the contractual relations of those who have made a definite agreement, as it appears to have done in Caffey, nor can it assume the role of a factfinder in deciding "as a matter of law" that a plaintiff has not acted "reasonably" under the circumstances, as it appears to have done in Tyler. I note that this Court's willingness to venture into the factfinding arena in fraud cases has continued to this day, although the Court has changed the standard for reviewing a person's action on a particular representation. See Hickox v. Stover, supra.
This Court is not a factfinding body, and it is ill suited to determine whether a person's action on a particular representation was "reasonable" or was "justifiable" under the circumstances. When a plaintiff, without an objection by the defendant, introduces evidence that the defendant made a false representation to him and that he acted on that false representation to his detriment, by what authority should this Court, or the trial court, disregard that evidence in determining whether the plaintiff acted reasonably or justifiably, even if the plaintiff did sign a contract that was clearly contrary to the representation? I think that there is a better way to approach cases of this kind. Evidence like that which Dixon offered in this case should be excluded pursuant to a proper objection, Smith v. Brownfield, 553 So. 2d 573 (Ala. 1989) (evidence that is not material to the disposition of a claim is subject to objection and exclusion), but if no objection to the otherwise inadmissible evidence is made, it should be considered along with all of the other evidence in the case in determining whether the plaintiff could act on the representation.
Approaching the present case from this standpoint, I would hold that Dixon's and the DeKays' testimony regarding any representations concerning the sufficiency of the DeKays' collateral that may have been made to him by Flatt prior to the execution of the loan documents was not admissible in furtherance of his fraud claim. The promissory notes and personal guaranty agreement signed by Dixon, introduced by SouthTrust and Flatt in support of their motions for summary judgment, made a *713 prima facie showing that Dixon did not act on any representations that may have been made by Flatt concerning the amount of collateral that was to be provided by the DeKays. Dixon, who, the record shows, was under a legal duty to read and to fully understand the nature of the transaction, testified that Flatt made certain oral representations concerning the amount of the DeKay's collateral and that he acted on those representations. That testimony was not material to his fraud claim; consequently, it was subject to objection and exclusion under Rule 56. I would assume, therefore, that the trial court, pursuant to the objections of SouthTrust and Flatt, did not consider this evidence. Accordingly, I would overrule the holdings in Alabama Machinery & Supply Co. v. Caffey and Tyler v. Equitable Life Assurance Society of the United States, as well as the holdings in other similar cases, to the extent that they are inconsistent with the views that I have expressed herein, and I would hold that the summary judgment for South-Trust and Flatt was proper, on the ground that there was no genuine issue of material fact (Rule 56(c)) regarding the absence of one of the essential elements of Dixon's fraud claimsa false representation of material fact.[5]
[1] Effective January 9, 1985, fraud actions were transferred to the two-year statute of limitations. Ala.Code 1975, § 6-2-38.
[2] Although SouthTrust and Flatt initially introduced Dixon's depositions in support of their motions for summary judgment, they later objected to the portions of those depositions that were relied on by Dixon. This objection was brought to the trial court's attention prior to its ruling on the motion.
[3] As a general rule, a person is under a legal duty to read and to understand what he signs. Traylor v. Bell, 518 So. 2d 719 (Ala.1987); First National Bank of Mobile v. Horner, 494 So. 2d 419 (Ala.1986). However, under certain circumstances, a person may be relieved of this duty so that he can act on an oral representation even though the representation is inconsistent with a contract subsequently signed by him. See, e.g., Arkel Land Co. v. Cagle, 445 So. 2d 858 (Ala.1983) (held that the plaintiff, who had a fifth-grade education, could act on a false representation concerning the content of a mineral lease that was made by the defendant's attorney, who, the plaintiff thought, was acting on his (the plaintiff's) behalf); Century Plaza Co. v. Hibbett Sporting Goods, Inc., 382 So. 2d 7 (Ala. 1980) (held that the plaintiff could act on a false representation that was made by the defendant's agent that the contents of a shopping center lease, which had previously been read and rejected by the plaintiff, had not been changed); Connell v. State Farm Mut. Auto. Ins. Co., 482 So. 2d 1165 (Ala.1985) (held that the plaintiff could act on a false representation that was made by the defendant's agent that the plaintiff was applying for certain insurance coverage, when the language used in the application was technical in nature and its meaning was peculiarly within the knowledge of the agent). For a more recent case that is similar to Connell, see Liberty National Life Ins. Co. v. Sherrill, 551 So. 2d 272 (Ala.1989). In Liberty National, although the opinion, which I wrote, is not clear on the matter, the language used in the insurance application was also technical in nature and its meaning was peculiarly within the knowledge of the agent.
[4] It is axiomatic that a person is not required to anticipate that he may be the victim of a fraud; therefore, if the contract is not clearly contrary to a pre-execution parol representation, he can act on that representation.
[5] Although I would not hold that Dixon's testimony was inadmissible under the parol evidence rule, I note that that rule, like the exclusionary rule I would apply in this case, prohibits the introduction of immaterial evidence. The parol evidence rule does not exclude certain evidence because, for one reason or another, it is untrustworthy or undesirable as a means of evidencing a fact sought to be proved. The rule simply states that certain evidence is legally ineffective. See Hibbett Sporting Goods, Inc. v. Biernbaum, 375 So. 2d 431 (Ala.1979). The logic of the parol evidence rule is that when parties have made a contract and have clearly expressed it in a writing to which they have assented as the complete and accurate integration of that contract, any evidence, whether parol or otherwise, of antecedent understandings and negotiations is not material to any question involving rights and obligations under the contract.
I also note that in Alabama the application of both the parol evidence rule in contract cases and the exclusionary rule, which I would apply in this case, may be waived if a proper objection is not made, and that evidence admitted without objection should not be disregarded in resolving the issues presented. See Alfa Mutual Ins. Co. v. Northington, supra ("[i]n Alabama ... it has been generally recognized that parties to a lawsuit may try their case on evidence that would otherwise be inadmissible upon proper objection and that where evidence violative of the parol evidence rule is admitted without objection, it may be considered and allowed such force and effect as its weight entitles it in construing the agreement of the parties"). But see Annot., 81 A.L.R.2d, Modern Status of Rules Governing Legal Effect of Failure to Object to Admission of Extrinsic Evidence Violative of Parol Evidence Rule 249 (1977), for a collection of cases from other jurisdictions holding that evidence violative of the parol evidence rule may not be considered, even though it was admitted without objection. | September 21, 1990 |
0592c063-fe56-4279-a9aa-11fbc89af467 | Wooley v. Shewbart | 569 So. 2d 712 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 712 (1990)
Carolyn WOOLEY
v.
V.A. SHEWBART, et al.
CONTINENTAL CASUALTY COMPANY d/b/a CNA Insurance Companies, et al.
v.
Carolyn WOOLEY.
89-398, 89-481.
Supreme Court of Alabama.
September 28, 1990.
*713 Charles H. Volz III of Volz and Volz, Montgomery, for appellant/cross-appellee.
N.T. Braswell III of Rushton, Stakely, Johnston, & Garrett, Montgomery, for appellees/cross-appellants.
MADDOX, Justice.
These consolidated appeals respectively present questions concerning the scope of the tort of outrageous conduct arising out of a workmen's compensation insurance carrier's refusal to pay benefits, and the tort of bad faith failure of the carrier to pay benefits allegedly due under the workmen's compensation policy.
Carolyn Wooley filed a complaint against her former employer (who operated a bar known as "Stagger Lee's"); her former employer's insurance carrier, Continental Casualty Company (hereinafter "Continental"); and Continental claims adjusters V.A. Shewbart and Sharon Stevens.[1] In her complaint, as last amended, she claimed, in Count I, that workmen's compensation benefits were due her as a result of a work-related injury;[2] in Count II, she claimed damages against Continental, Shewbart, and Stevens for the intentional tort of outrageous conduct in stopping payment of workmen's compensation benefits and in refusing to pay them; in Count III, she alleged that outrageous conduct on the part of Continental and its agents was the result of a pattern and practice of willfully, knowingly, intentionally, and recklessly denying or terminating benefits to which persons insured under the terms of workmen's compensation policies were legally entitled; and in Count IV, she claimed damages for the alleged intentional tort of bad faith on the part of Continental in the termination and refusal to pay or to reinstate workmen's compensation benefits.
The facts giving rise to Wooley's claims are as follows: Wooley, a bartender at Stagger Lee's, slipped and fell to the floor at work. She landed on her bottom, sitting up, hitting more on her left side. After getting up from the floor, Wooley attempted to work but complained of pain emanating from her bottom and from her left hip area. Wooley continued to report for work for the next four or five days, but then notified her supervisor that she needed to see a doctor. Stagger Lee's referred her to Dr. Michael Reeves for examination and treatment of her injury, and Dr. Reeves referred her to Dr. James Ramey, an orthopedic surgeon. Dr. Ramey, following his examination of Wooley, concluded that her fall at work aggravated an earlier pre-existing condition experienced by her as a child, a condition known as Legg-Calvé-Perthes disease.[3]
*714 Dr. Ramey's diagnosis and recommended treatment for Wooley was later confirmed through a second medical opinion given by Dr. Kurt Niemann, director of the Division of Orthopedic Surgery at the University of Alabama at Birmingham.[4]
After Wooley notified Stagger Lee's of her injury, Stagger Lee's notified its workman's compensation insurance carrier, Continental. Sharon Stevens began to process Wooley's claim, but her claim file was later assigned to V.A. Shewbart, claims supervisor for Continental. Before Wooley's claim file was assigned to Shewbart, Wooley had received periodic workmen's compensation checks from Continental, but after her claim was assigned to Shewbart, he questioned whether the claim was a covered claim. Eventually, Shewbart recommended that benefits be terminated and that Continental not pay for a scheduled hip operation. Shewbart's decision to terminate the benefits being paid to Wooley came after his review of the file, which included the letter from Dr. Ramey, a portion of which is quoted in footnote 3, but before receipt of Dr. Ramey's letter, which enclosed a letter from Dr. Niemann in which Dr. Niemann had reached a conclusion similar to that of Dr. Ramey. See footnote 4.
Wooley was initially represented by attorney Andy Poole, who testified, by deposition, concerning discussions that he had both with Shewbart and with Stevens. Poole testified that he was in an adversarial relationship with Shewbart concerning the claim, and that Wooley had authorized him to file suit, but that he did not. Wooley subsequently requested that Poole give her the file, and she then got new counsel, who filed Wooley's complaint.
Count I, the workmen's compensation claim, was severed for a separate trial, and after a trial, the court entered an order reinstating compensation and medical benefits, based upon a finding that Wooley was injured as a result of an accident arising out of her employment.
In two separate motions filed by Continental and its two agents, these defendants sought a summary judgment on Wooley's tort of outrageous conduct count and a dismissal of Wooley's bad faith refusal count against them. The trial court denied those summary judgment motions. The court granted Continental's motion to dismiss the bad faith count and made that dismissal a final judgment under Rule 54(b), Ala.R.Civ.P.
Wooley appealed from the trial court's judgment dismissing her bad faith claim. This Court granted Continental, Stevens, and Shewbart permission to appeal from the order denying their motions for summary judgment on the tort of outrageous conduct claims and consolidated their appeal with Wooley's appeal.
The defendants argue that the trial court erred in not granting their motion for summary judgment on Wooley's tort of outrageous conduct claim, asserting that their alleged conduct never rose to a level so extreme and outrageous in degree as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society. In support of their motions, the defendants filed depositions taken of Wooley, Shewbart, Stevens, and Poole.
*715 The issue presented, of course, is whether the trial court erred in denying their motions. Rule 56(c) reads, in part:
In their brief filed in support of their motion for summary judgment, the defendants argued that the alleged conduct taken by them in regard to the handling of Wooley's claim never reached the level of intolerability associated with the tort of outrageous conduct, and they cite, among other cases, the following: American Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980), the case recognizing the tort and setting forth the elements; Garvin v. Shewbart, 564 So. 2d 428 (Ala.1990); Daniel v. Alabama Power Co. 555 So. 2d 162 (Ala.1989); Nabors v. St. Paul Ins. Co., 489 So. 2d 573 (Ala.1986); Empiregas, Inc. of Gadsden v. Geary, 431 So. 2d 1258 (Ala. 1983).
Wooley counters by arguing in her brief that the conduct taken by the defendants in refusing to continue benefit payments to her, and in refusing to approve a scheduled hip operation on her, was intended by the defendants to inflict severe emotional distress upon her, and was so extreme as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized society.
In Continental Casualty Ins. Co. v. McDonald, 567 So. 2d 1208 (Ala.1990), which upheld a jury award of $750,000 in a case involving a claim of outrageous conduct arising out of a workmen's compensation claim, this Court delineated the evidence, distinguished Garvin v. Shewbart, 564 So. 2d 428 (Ala.1990) (Garvin II),[5] and concluded as follows:
567 So. 2d at 1219-1221.
The allegation in this case is simply that Shewbart denied Wooley's claim with no arguable reason for doing so. He did not communicate that denial directly to Wooley but sent a letter to her attorney. The only aspect of the denial that could conceivably be called outrageous is that it came shortly before her scheduled surgery. That fact of timing is far from being "`so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as utterly intolerable in a civilized society.'" American Road Service Co. v. Inmon, 394 So. 2d 361, 368 (Ala. 1980) (quoting Comment d, Restatement (Second) of Torts, § 46 at 73 (1948)). The evidence in this case is entirely unlike that in Continental Casualty Ins. Co. v. McDonald, from which the jury reasonably could have found that CNA had engaged over an extended time in an effort to coerce McDonald to settle his workmen's compensation benefits for an unfairly low lump-sum payment.
Therefore, the trial court erred in not granting the defendants' motion for summary judgment on Wooley's outrage claim. As to that claim, the judgment is reversed and a judgment is rendered for the defendants.
In her appeal, Wooley argues that the trial court erred in granting the defendants' motion to dismiss her claim alleging bad faith refusal to pay. They counter her argument by saying that, under Ala.Code 1975, § 25-5-53, part of the Alabama Workmen's Compensation Act, the so-called "exclusiveness of remedy" section, Wooley could not assert a bad faith refusal count against them. The defendants cite, among other cases, this Court's case of Waldon v. Hartford Insurance Group, 435 So. 2d 1271 (Ala.1983), overruled in part by Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90 (Ala.1989). Wooley admits that Waldon and Garvin v. Shewbart, 442 So. 2d 80 (Ala.1983), overruled in part by Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90 (Ala.1989),[6] are authority upon which the judgment of the trial court dismissing her bad faith claim can be affirmed; nevertheless, she asks this Court to overrule those cases and permit her bad faith action in this case.
The standard of review applicable to the granting of a motion to dismiss was stated by this Court in Hill v. Kraft, Inc., 496 So. 2d 768, 769 (Ala.1986): "Motions to dismiss should be granted sparingly, and a dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.
*718 Garrett v. Gilley, 488 So. 2d 1360 (Ala. 1986)."
In count IV of Wooley's complaint, Wooley asserted that the defendants in bad faith terminated additional workmen's compensation benefits legally due her under the Alabama Workmen's Compensation Act. In Oliver v. Liberty Mut. Ins. Co., 548 So. 2d 1025, 1026 (Ala.1989), this Court, in interpreting the exclusivity provision of Alabama's Workmen's Compensation Act and its effect on a plaintiff's claim for bad faith refusal to pay, stated the following:
(Emphasis added.)
We note that the holding in Oliver does not discuss whether the provisions of § 25-5-59 would have been applicable in that case. The decisions in Waldon, Garvin, and Oliver were based upon the exclusivity provisions of the Workmen's Compensation Act.
In Crown Textile Co. v. Dial, 507 So. 2d 522 (Ala.Civ.App.1987), Judge Ingram, writing for the court, said:
507 So. 2d at 524. In this case, of course, the trial judge awarded the plaintiff the 10% penalty based upon his determination that "said termination [of benefits] was without good cause and that plaintiff [was] entitled to the ten per cent (10%) penalty on all temporary total disability benefits not paid, as is provided in Code of Alabama 1975, Section 25-5-59." Order of Judge Mark Kennedy, dated October 19, 1988.
The dismissal of the claim alleging bad faith refusal to pay (89-0398) is affirmed. The denial of the defendants' summary judgment motions on the claim alleging the tort of outrage (89-0481) is reversed, and a judgment is rendered for the defendants on that claim.
89-0398 AFFIRMED.
89-0481 REVERSED AND JUDGMENT RENDERED.
ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur.
JONES, J., concurs in the result.
HORNSBY, C.J., and ADAMS, J., concur in part, dissent in part.
KENNEDY, J., recused.
JONES, Justice (concurring in the result).
I concur in the judgment of the Court in both cases. I do not agree, however, that the bad faith claim is governed by Ala.Code 1975, § 25-5-53.
Because the Workmen's Compensation Act (§ 25-5-59) ("the Act") expressly authorizes the imposition of a 10% penalty against the employer or its carrier for the failure to pay compensation "without good cause," the statutory remedy is exclusive. In other words, the Act provides its own "bad faith" remedy; thus, its 10% penalty provision operates to the exclusion of the common law tort of bad faith. Otherwise, there is no basis for a distinction between the tort of outrage and the tort of bad faith with respect to the application of the exclusivity *719 clause, because both torts occur outside the coverage of the Act.
I further believe that, because the 10% penalty is only a nominal additional payment imposed upon the employer or its insurance carrier for forcing the injured employee to forgo statutory benefits under the Act, this Court, as a matter of public policy, should authorize the trial court to further impose upon the employer or its insurance carrier a reasonable attorney fee; thus, under circumstances that invoke the penalty provision, the injured employee would be made whole.
HORNSBY, Chief Justice (concurring in part; dissenting in part).
I concur with the majority with respect to its holding on the issue of outrageous conduct. However, with respect to the issue of bad faith, I believe that the majority opinion relies on authority that is no longer applicable, and I must respectfully dissent.
In Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So. 2d 90 (Ala.1989), the main issue was "how far the exclusivity provisions of the Workmen's Compensation Act extend." Id. at 92. After an examination of the relevant statutes, this Court held that "the exclusive remedy provisions were not designed to shield an employer or its insurer from the entire field of tort law." Id. (emphasis added). More specifically, this Court held that "the exclusivity provisions of the [Alabama Workmen's Compensation] Act do not afford protection for injuries not caused by a job related accident," id. at 93 (emphasis original), and that "intentional tortious conduct ... committed beyond the bounds of the employer's proper role is actionable." Id. at 95.
The rationale for the holding in Lowman was simply that in order for an act to be compensable under the Workmen's Compensation Act (hereinafter "the Act") the injury must occur within the course of employment. "It logically follows that if an accident is not compensable because it is outside the coverage of the Act, then the exclusive remedy provisions of the Act are also inapplicable." Id. at 93.
In the present case, as in Lowman, the relationship between the initial work-related accident and the tortious conduct complained of is entirely too tenuous to allow Continental Casualty to invoke the coverage of the Act and thereby avoid liability for its wrongdoing. In Lowman we found this "bootstrapping" approach untenable, and it should not be accepted in the present case.
Although the actionable conduct alleged in the Lowman case was fraud and the tort of outrageous conduct, this Court relied on a case that involved the tort of bad faith, Carpentino v. Transport Ins. Co., 609 F. Supp. 556 (D.Conn.1985), in justifying its reasoning in Lowman. In Alabama the tort of bad faith is "an intentional tort, a species of fraud." Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So. 2d 1054, 1064 (Ala.1979) (Jones, J., concurring). Therefore, under the Lowman decision, the exclusivity clause should not act as a bar to the plaintiff's claim of bad faith.
In Lowman, this Court determined that the Act's exclusivity provisions are no bar to actions alleging intentional torts occurring outside the scope of employment. I find no just reason why this Court should now refuse to allow the plaintiff's bad faith cause of action. In the present case, the plaintiff made a prima facie case of Continental Casualty's bad faith refusal to pay an insurance claim, under the elements set out by this Court in Tyson v. Safeco Ins. Cos., 461 So. 2d 1308 (Ala.1984). Because the tort of bad faith is an intentional tort and a species of fraud that, under the Lowman decision, is not barred by the Act's exclusivity clause, I would reverse the trial court's dismissal of the plaintiff's bad faith claim.
The principal cases that the majority relies upon in refusing to allow a recovery for bad faith under the Act were either expressly or impliedly overruled by this Court in Lowman:
Lowman, 547 So. 2d at 95.
I note that the majority also cites Oliver v. Liberty Mut. Ins. Co., 548 So. 2d 1025 (Ala.1989), which stated in dictum that "[t]his court has held that a claim for bad faith failure to pay an insurance claim in the context of workmen's compensation claims is barred by the workmen's compensation exclusivity provisions, but that a claim based on the tort of outrage is not barred." Id. at 1026.
In support of this proposition, the Court in Oliver cited cases that had been overruled by Lowman. The above-quoted dictum is not the law in Alabama. I concurred in Oliver because the facts of that case did not support the claim of outrageous conduct and the plaintiff did not allege the tort of bad faith failure to pay. In the present case, however, the tort of bad faith, in the context of the Workmen's Compensation Act, is squarely before this Court, and in light of the Lowman decision it should not be barred by the Act's exclusivity provisions.
ADAMS, J., concurs.
[1] Continental Casualty Company is one of several insurance companies that together form CNA Insurance Companies.
[2] Initially, Continental paid benefits to Wooley, but it later terminated them.
[3] Dr. Ramey thought that Wooley's condition was more serious than a bruised coccyx. He determined that she had an "old condition known as Legg's Perthes disease," a disruption of the hip joint, and he also indicated a slipped capital femoral epiphysis. In response to a letter from Continental adjuster Sharon Stevens, he stated, concerning Wooley's condition:
"I believe that Ms. Wooley has had either an old Legg-Perthes disease with perhaps osteochondral fragments which may not have separated from the head prior to this or an old slipped capital femoral epiphysis and that in her fall, she may have dislodged one of the pieces. Again, she may not have. There is no accurate way for me to assess that. Now, the irregularity of the weight bearing surface of the head is probably causing a great deal of her pain. Therefore, I do believe that the fall aggravated a pre-existing condition and this condition, because of its nature, may persist for some time, and she may require surgical replacement of her hip in the future."
(Emphasis added.)
[4] The second opinion given by Dr. Niemann was made in response to a request for a second opinion made by Dr. Ramey to Dr. Niemann. Dr. Niemann's letter states, in part:
"As you know this 24 year old lady was apparently diagnosed as having Legg-Perthes disease approximately 13 years ago. She now complains of left hip stiffness and pain.
"On our examination she has a good deal of limitation of hip motion with external rotation of 30 degrees, abduction of 45 degrees and marked limited internal rotation.... Her X-rays reveal extensive deformity due to involvement with Legg-Perthes disease and lateral extrusion of the edge of the femoral head. We discussed a plan to include the installation of an ingrowth bipolar hip such as the Osteonics Microstructured Stem. I think in this age group this is a good option since these seem to be doing well and will likely hold up over a longer period of time than conventional cemented arthroplasty in this young age group."
[5] Garvin II involved the same company involved here, and the same claims adjusterShewbart.
[6] Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So. 2d 90 (Ala.1989), overruled Waldon and Garvin to the extent that they may be interpreted as rejecting claims for intentional fraud, as a matter of law. Lowman did not overrule those cases in regard to the "exclusiveness of remedy" section barring a bad faith claim. | September 28, 1990 |
d30b26aa-0538-49b7-a7f1-5c982fc41020 | GREEN BY AND THROUGH GREEN v. Bester | 568 So. 2d 792 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 792 (1990)
Demeatress GREEN, a Minor who Sues By and Through Her Parents and Next Friends Josephine GREEN and Arthur Scales
v.
Norman BESTER, et al.
89-1275.
Supreme Court of Alabama.
September 14, 1990.
*793 Carlos A. Williams of Chestnut, Sanders, Sanders, Williams & Pettaway, Selma, for appellant.
Mark S. Boardman of Porterfield, Harper & Mills, Birmingham, for appellees.
MADDOX, Justice.
This is an appeal from a summary judgment in favor of the defendants in a negligent supervision action.
On September 22, 1986, Demeatress Green, a fourth-grade student attending Whatley Elementary School in Birmingham, Alabama, while participating in outdoor exercises during her class's physical education ("P.E.") period, was struck on the head by a rock thrown by a sixth-grade student. That sixth-grade student, whose class was also participating in P.E. exercises, threw the rock with the intent of hitting Demeatress's brother, Reginald Green, who that sixth-grade student thought had kicked him in the leg while he (the sixthgrade student) was standing around talking to his classmates. Upon being struck in the temple with the rock, Demeatress fell to the ground, whereupon Reginald ran to her aid. Seeing Demeatress lying motionless on the ground, some teachers ran to her aid, too. Demeatress spent two weeks in a hospital. Following her release from the hospital, she started to experience seizures, a condition that she had no history of prior to the incident at school.
In a complaint filed on behalf of Demeatress by her mother, Josephine Green, and her father, Arthur Scales, Demeatress asserted that her school teacher, defendant Jimmy Tyus, had deliberately violated his duty to supervise the activities of his students by placing one of his students in charge of watching his class while he, Tyus, went inside the school building.[1] Furthermore, Demeatress also asserted that Norman Bester, principal at Whatley Elementary School, and Mary Delaine, the sixth-grade teacher of the rock-throwing student, were negligent in their supervision of the students during the P.E. period when Demeatress was injured.
After filing their answer, the defendants filed a motion for summary judgment. In their brief filed in support of their motion, they denied that they were negligent in the supervision of the P.E. students on the day of the accident. Following a hearing on the motion, the court entered a summary judgment for the defendants. The plaintiff appeals.
Because this lawsuit was filed after June 11, 1987, the "substantial evidence rule" is the applicable standard for testing the correctness of the trial court's ruling on the summary judgment motion. See Ala.Code 1975, § 12-21-12 (Cum.Supp.1989). Summary judgment is proper only when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R. Civ.P. The sole question in this appeal is whether, once the defendants made a prima facie showing that their actions did not cause the injury, the plaintiff overcame *794 that prima facie showing with "substantial evidence" that the defendants failed to "reasonably supervise" the activities of the P.E. students on the day of Demeatress's injury and that their failure caused the injury.
The case of Stevens v. Chesteen, 561 So. 2d 1100 (Ala.1990), involved a negligent supervision action brought by a student and his parents against a physical education teacher. The teacher had permitted the student, who had earlier injured his knee in a motorcycle accident and was recuperating from a knee operation, to stand on the sidelines of a football field to watch a touch football game. He reinjured his knee when a player ran into him while chasing a ball carrier. This Court, in defining the duty of "reasonable supervision" owed by a physical education teacher to his students, said that the duty is breached if there is evidence from which a jury could find that supervision probably would have prevented the accident.[2]
After applying the Stevens standard to the facts presented to the trial court in this case, this Court cannot say that the trial court erred in entering the defendants' summary judgment. Whether the defendants breached a duty by not being present is insignificant, for the plaintiff did not produce any evidence that had all the defendants been present at the P.E. exercises the accident would not have occurred.
The evidence presented before the trial court showed that the actions of the sixthgrade student were so sudden and unexpected that no amount of teacher supervision would have prevented them. In his deposition testimony, submitted by the defendants, Reginald, the intended target of the sixth-grader's actions, testified as follows regarding the moments leading up to the accident:
The foregoing testimony given by Demeatress's brother clearly shows that the actions taken by the sixth-grader were so sudden and unexpected that no amount of planned teacher supervision would have prevented the incident. In the Stevens *795 case, supra, this Court noted that it is impossible for a teacher to personally supervise the actions of each student under his charge. Because the plaintiff presented no evidence to rebut the defendants' showing that the presence of all of the defendants at the P.E. exercises would not have prevented the rock throwing incident, the summary judgment was proper.
The judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] In his deposition testimony offered into evidence by the defendants, Tyus denies ever leaving his P.E. class in charge of one of his students on the day of the accident. Tyus stated that he was present with his class at the time of the accident.
[2] In Best v. Houtz, 541 So. 2d 8 (Ala. 1989), this Court had held that a physical education teacher has a duty of "reasonable supervision" over the activities of his students. | September 14, 1990 |
3f5deba9-9c3e-4527-99eb-23bacdfa8d7e | Allen v. Walker | 569 So. 2d 350 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 350 (1990)
Kathryn ALLEN and John D. Allen
v.
Richard WALKER and United Paperworkers International Union, Local 719.
89-740.
Supreme Court of Alabama.
September 21, 1990.
*351 Collins Pettaway, Jr. of Chestnut, Sanders, Sanders, Williams & Pettaway, Selma, for appellants.
William J. Baxley and David McKnight of Baxley, Dillard & Dauphin, Birmingham, and Lynn Agee of UPIU Legal Dept., Nashville, Tenn., for appellees.
ALMON, Justice.
The plaintiffs, Kathryn Allen and her husband, John Allen, appeal from a summary judgment for the defendants, Richard Walker and the United Paperworkers International Union, Local 719 ("the union"), in an action that involved claims of assault and negligence as to Kathryn. John alleged a loss of consortium. The Allens' complaint alleged that Walker had threatened Kathryn, and it included her employer, Gulf States Paper Company, and Herb Coley, the plant supervisor, as defendants. The complaint also stated numerous other theories of recovery that are not relevant to this appeal. The trial court dismissed Gulf States and entered a summary judgment for Coley. The Allens' appeal as to Gulf States and Coley was untimely and has been dismissed by this Court. This opinion will be restricted to a discussion of the Allens' allegations of assault and negligence against Walker and the union.
The Allens' claims of assault against Walker and the union[1] were based on the following facts:
Kathryn and Walker were employed at Gulf States' plant in Demopolis and were members of the same union. During a conversation concerning the proper method of filing a grievance against Gulf States with the union, Walker allegedly shook his finger in Kathryn's face. Kathryn told Walker that the last man who pointed his finger at her "was sorry that he did it." Walker then allegedly stated that he would "whip [Kathryn's] ass anytime, anywhere." The conversation then ended and Kathryn returned to work. The next day she and Walker had a second confrontation, during which Walker allegedly repeated his earlier threat. Following that second incident Kathryn became "agitated and upset" and reported Walker's threats to her supervisor.
Holcombe v. Whitaker, 294 Ala. 430, 435, 318 So. 2d 289, 294 (1975). Words standing *352 alone cannot constitute an assault. However, they may give meaning to an act, and when both are taken together they may create a well-founded fear of a battery in the mind of the person at whom they are directed, thereby constituting an assault. Id.; M. Roberts and G. Cusimano, Alabama Tort Law Handbook § 28, at 585-86 (1990).
Kathryn argues that Walker's alleged threats, when combined with the fact that he shook his finger in her face during their first conversation, created a question for the jury on the issue of assault. She contends that Walker's actions were similar to those of the defendant in Holcombe, supra. In Holcombe the defendant, Holcombe, repeatedly threatened to kill the plaintiff, Whitaker, if she filed a lawsuit against him. When Whitaker filed her action, Holcombe came to her home, beat on the door, and attempted to pry it open, while repeating his threats to kill her. Holcombe, 294 Ala. at 433, 318 So. 2d at 294. There was also evidence that Holcombe made harassing telephone calls to Whitaker and vandalized her home. Those acts so unnerved Whitaker that she changed the locks on her door, nailed her windows closed, and had friends spend the night at her home thereafter. Id. This Court held:
294 Ala. at 435, 318 So. 2d at 294.
Although the facts in this case are not as strong as those in Holcombe, we cannot say that, as a matter of law, Walker's acts and threats could not create a reasonable or well-founded apprehension of imminent physical harm. Western Union Telegraph, supra. There was evidence that, after Walker's first alleged threat, Allen walked away. That evidence is not conclusive, however, as to whether she discounted the threat or whether she left to avoid the threatened harm. She also testified that, after the second alleged assault the next day, she had to leave work because she was so frightened and upset.
After reviewing the evidence before the trial court in a light most favorable to the non-movant, as this Court must do when reviewing a summary judgment, Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985), we conclude that Kathryn presented sufficient evidence that Walker's alleged threats created a well-founded fear of imminent harm and created a jury question on her claim of assault. Therefore, the summary judgment on that claim will be reversed.
Finally, the Allens argue that the trial court erred by entering summary judgment in favor of Walker and the union on their claim of negligent infliction of emotional distress.[2] However, there is no cause of action for the negligent infliction of emotional distress. This Court has repeatedly stated that only intentional infliction of severe emotional distress is actionable. See Green Tree Acceptance, Inc. v. Standridge and El-Jay's, Inc., 565 So. 2d 38 (Ala.1990); Busby v. Truswal Systems Corp., 551 So. 2d 322, 324 (Ala.1989); Whitt v. Hulsey, 519 So. 2d 901, 903-04 (Ala.1987); American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980). Therefore, the summary judgment was proper as to the negligence claim and as to that claim it is affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and JONES, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1] Although it is not clear, it appears that Allen's claim against the union for Walker's alleged assault was premised on unspecified theories of agency law.
[2] It appears that the complaint also contained a claim based on intentional infliction of emotional distress. However, the Allens have not argued that the summary judgment was erroneous as to that claim. | September 21, 1990 |
891be089-436a-4c64-bea7-4c3ba3a4e826 | Ex Parte Fairhope Bd. of Adj. and Appeals | 567 So. 2d 1353 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1353 (1990)
Ex parte FAIRHOPE BOARD OF ADJUSTMENT AND APPEALS and The City of Fairhope.
(Re A.E. MAUMENEE, et al. v. FAIRHOPE BOARD OF ADJUSTMENT AND APPEALS and the City of Fairhope).
89-323.
Supreme Court of Alabama.
September 14, 1990.
*1354 Marion E. Wynne of Wilkins, Bankester, Biles & Wynne, Fairhope, for petitioners.
W. Kenneth Gibson, Fairhope, for respondents.
MADDOX, Justice.
This case involves the power of a municipal zoning authority to grant a special exception to a landowner to permit the construction of a church parking lot on a lot zoned for residential purposes and located across the street from the church.
We issued the writ of certiorari to review the Court of Civil Appeals' holding that, under the terms of the city ordinance regulating accessory uses, the lot across the street could not be used as a parking lot because it was separated from the lot on which the church was located. 567 So. 2d 1351 We affirm.
The case arises out of a decision by the City of Fairhope's Board of Adjustment and Appeals (hereinafter the "Board") that granted a special exception to the zoning ordinances for the construction of a church parking lot by the First Baptist Church of Fairhope on a lot located across the street.[1]
Landowners who lived adjacent to the subject lot appealed to the circuit court for a trial de novo, and that court granted the Board's summary judgment motion, thereby upholding the Board's grant of the special exception. The landowners then appealed to the Court of Civil Appeals, and that Court reversed, finding that "[t]he land use involved, a parking facility, in a residential district in Fairhope is a forbidden use under the present ordinance, and as such would require the granting of a variance."[2] The Board filed a petition for writ of certiorari with this Court. We now review what is, insofar as we can tell, a case of first impression concerning accessory uses of lots and the requirement that an accessory use be located on the same lot.
The property in question lies in an "R2 medium density single-family residential district," across the street from the First Baptist Church of Fairhope. See Appendix A. The church offered to buy the property in question, contingent upon the owner's obtaining permission from the Board for the construction of a parking facility for use by the members of the church. The owner applied to the Board for a special exception, which was granted. The grant of that special exception is the subject matter of this appeal.[3] The church then purchased the property.
At the outset, we note that "statutes or ordinances which impose restrictions on the use of private property are strictly construed and their scope cannot be extended to include limitations not therein included or prescribed." Smith v. City of Mobile, 374 So. 2d 305, 307 (Ala.1979). We agree with the Court of Civil Appeals that *1355 Smith stands for the proposition that land use restrictions are to be strictly construed. However, we take this opportunity to note that the full context of the Smith quote indicates that land use restrictions are to be strictly construed in favor of the landowner.
We agree with the Court of Civil Appeals that if the use of the lot as a parking lot is a forbidden use, then that use may not be authorized by a special exception. A special exception is a conditionally permitted use, that is, it is an enumerated use specified in the zoning ordinances that requires the approval of an administrative board or agency. A special exception "allows a property owner to put his property to a use which the regulations expressly permit under conditions specified in the zoning regulations themselves." 101A C.J.S. Zoning & Land Planning § 229, p. 656 (1979). This contrasts with a "variance," which requires a showing of unnecessary hardship and results from a request that the zoning authorities grant relief from the literal requirements of the zoning ordinances. Ex parte Chapman, 485 So. 2d 1161 (Ala.1986).
The Board argues that although a parking lot is not a permitted use of the subject property, a church is a permitted use in a residential zone; therefore, it reasons that a parking lot would be permitted as an accessory use by the church.
Our research indicates that this Court has not decided the exact issue now presented, but we conclude that the Court of Civil Appeals correctly determined that because "the proposed use, a parking facility, is not `on the same lot ... with the principal use or structure' as required under the zoning ordinance," the use was not a permitted use.
The uses of property permitted in particular zones include accessory uses customarily incident to the permitted use, and, as the Court of Civil Appeals pointed out in its opinion, Section 2.2.001 of the City of Fairhope zoning ordinance defined an "Accessory Use or Structure," as "[a] use or structure on the same lot with, and of a nature customarily incidental and subordinate to, the principal use or structure." (Emphasis added.)
The definition of "accessory use" in the ordinance is consistent with the general rule that "the accessory use must be located on the same lot as the building to which it is accessory." 101A C.J.S. Zoning & Land Planning, § 148, p. 466. See also, Sexton v. Bates, 17 N.J.Super. 246, 85 A.2d 833 (1951), affirmed, Sexton v. Essex County Ritualarium, 21 N.J.Super. 329, 91 A.2d 162 (1952), in which a permit for a mikvah or ritualarium on a separate lot from the synagogue was struck down because, under the terms of the zoning ordinances, an accessory use must be located on the same lot with the building to which it is accessory.
We recognize, of course, that in some cases the use of property for a parking lot has been allowed as incidental to a permitted use for a church,[4] but in each of those *1356 cases, however, the factual situation has been different from the one presented here.
We conclude, therefore, that the logic of the opinion of the Court of Civil Appeals is sound and that that court's judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
*1357
[1] We note that the Court of Civil Appeals found that "[i]t is uncontested that the property at issue is located across the street and on the block north of the church itself." For a better understanding of the location of the subject property, we attach, as Appendix A, an exhibit showing the location of the church and the subject property sought to be used for a parking lot.
[2] A city ordinance required that all accessory uses be located on the same lot with the building or structure to which the uses are accessory, as we shall show later in this opinion.
[3] There was some dispute over whether a special exception or a variance was granted. Although the Board orally voted to grant a "variance," both the written request and the formal written decision of the Board referred to a "special exception." We agree with the Court of Civil Appeals that it appears from all the evidence that a "special exception" was granted.
[4] In Appeal of Hoffman, 66 Pa.Com. 7, 444 A.2d 764 (1982), a Commonwealth Court of Pennsylvania found in a similar case that a parking facility was part of a church complex and should be allowed. That court found that "the proposed parking facilities ... would clearly serve the church's principal use, namely, a religious use." 444 A.2d at 766. The Supreme Court of Idaho held in Corporation of Presiding Bishop v. Ashton, 92 Idaho 571, 448 P.2d 185 (1968), that the construction of two lighted softball fields by a church for use as a church recreation facility could be considered a part of the church for zoning purposes. In summing up a long line of cases, the Idaho court found that "the scope of the term `church' is broader than the church building itself and that activities related to the church itself are permissible in a residential area." 448 P.2d at 188. In Board of Zoning App. of Town of Meridian Hills v. Schulte, 241 Ind. 339, 172 N.E.2d 39 (1961), the Indiana Supreme Court held that the construction of a church building, school, and living quarters for both priests and sisters could not be excluded from a residential area. The Indiana court found that "facilities that go with the church of the particular denomination may not be excluded if the church is admittable." 241 Ind. at 346, 172 N.E.2d at 42. See, also Board of Zoning Appeals of City of Indianapolis v. Wheaton, 118 Ind.App. 38, 76 N.E.2d 597 (1948); Keeling v. Board of Zoning Appeals of City of Indianapolis, 117 Ind.App. 314, 69 N.E.2d 613 (1946). | September 14, 1990 |
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