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2f2b6f62-b429-4449-845c-95cbd554ff80 | Garmon v. Alabama State Bar | 570 So. 2d 633 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 633 (1990)
Leon GARMON
v.
ALABAMA STATE BAR.
89-1223.
Supreme Court of Alabama.
September 14, 1990.
Rehearing Denied October 19, 1990.
Leon Garmon, pro se.
John A. Yung IV, Montgomery, for appellee.
HOUSTON, Justice.
This is an appeal by respondent Leon Garmon, a licensed attorney-at-law, from a finding by the Disciplinary Board of the Alabama State Bar ("the Board") that he violated two Disciplinary Rules contained in the Code of Professional Responsibility, and from the Board's order that he be publicly censured. We affirm.
The complainant, Ronald C. Higgins, a domestic referee for the 16th Judicial Circuit (Etowah County) alleged that, while conducting a hearing in a domestic relations case, he was verbally abused by the respondent. Higgins specifically alleged that the respondent referred to one of his rulings as "idiotic" and "asinine"; that the respondent became argumentative; and that the respondent left the hearing room only after being threatened with physical removal by a deputy sheriff. The Board, after hearing the testimony of Higgins and others who were present when the incident occurred and after considering various exhibits, found the respondent guilty of engaging in "conduct that adversely reflects on his fitness to practice law," in violation of DR 1-102(A)(6), Code of Professional Responsibility, and of engaging "in undignified or discourteous conduct which is degrading to a tribunal," in violation of DR 7-106(B)(2). Thereafter, during arguments concerning the appropriate punishment for the respondent, evidence of four prior disciplinary *634 actions by the Board against the respondent was introduced; one of them involved an assault and battery committed by the respondent on Higgins. The Board subsequently ordered that the respondent be publicly censured.
The respondent first contends that Higgins was not acting as a "tribunal" within the meaning of DR 7-106(B)(2) when the incident in question occurred and, therefore, that the respondent could not have violated that rule. The respondent argues that Higgins was not acting as a "tribunal" because, he says, the procedure set out in Rule 53, A.R.Civ.P., for the appointment of referees in domestic relations cases was not followed with regard to Higgins's appointment in that, he says, the "exceptional condition" requirement of Rule 53(b) was not satisfied and there was no order from the trial court appointing Higgins. The respondent further argues that the requirements of Rule 53(b) are generally not observed in domestic relations cases in Etowah County and that "routine" domestic relations cases are automatically assigned to Higgins without court orders.
Initially, we note that the respondent has presented no evidence tending to show that the requirements of Rule 53(b) are generally not observed in domestic relations cases in Etowah County or that "routine" domestic relations cases are automatically assigned to Higgins without court orders. This Court is bound by the record on appeal, and the record tends to show only that no order was entered by the trial court appointing Higgins as a referee in the case that gave rise to the incident in question. Even assuming, however, that Higgins's appointment as a referee was not proper under Rule 53(b), and that that fact may have provided the respondent with a ground for appeal in that case, Higgins's status as a "tribunal" within the meaning of DR 7-106(B)(2) was not affected. "Tribunal" is variously defined in both lay and legal dictionaries as the seat of a court or the place where justice is administered. See The American Heritage Dictionary of the English Language (1969) and Black's Law Dictionary (5th ed. 1979). Amendment 328 (Article VI), § 6.11, of the Alabama Constitution authorized this Court to promulgate rules governing the administration of, and the practice and procedure in, all of the courts in this state. Rule 53 specifically authorizes the appointment of referees to facilitate the resolution of domestic relations cases in the circuit courts. Even a cursory review of Rule 53 shows that a referee acts as an arm of the circuit court and, in doing so, is vested with the authority to conduct hearings, compel the attendance of witnesses, impose certain sanctions, and make findings of fact and conclusions of law. Higgins was acting as a "tribunal" within the meaning of DR 7-106(B)(2) at the time of the incident in question.
We address only briefly the respondent's other contentionthat the evidence presented to the Board was not sufficient to support its findings. In Courtney v. Alabama State Bar, 492 So. 2d 1002, 1003 (Ala.1986), this Court, quoting Haynes v. Alabama State Bar, 447 So. 2d 675, 677 (Ala.1984), set out the applicable standard of review in disciplinary proceedings:
Without a further recitation of the testimony, suffice it to say that our review of the record shows the Board's findings to be supported by clear and convincing evidence.
For the foregoing reasons, we hold that the Board did not err in ordering a public censure of the respondent. All lawyers, the respondent included, should conduct themselves at all times, both personally and professionally, in accordance with the *635 highest standards of honesty, integrity, and civility.
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON and SHORES, JJ., concur. | September 14, 1990 |
eccdc3a9-1a3d-4be4-8cf9-6b7388a0e84f | Southern Guar. Ins. Co. v. Welch | 570 So. 2d 654 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 654 (1990)
SOUTHERN GUARANTY INSURANCE COMPANY
v.
Donna M. WELCH, et al.
89-218.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied November 9, 1990.
*655 E. Elliott Barker and Charles J. Potts of Barker & Janecky, Mobile, for appellant.
Joseph M. Brown, Jr., and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellees.
PER CURIAM.
Donna Welch was injured in a purse-snatching incident involving two minors, Chris Scott (who is not a party to this appeal) and Keith Hodges. The two minors drove up to Welch as she was walking with her mother across a parking lot and grabbed her purse from her shoulder, pulling her partially into the automobile and dragging her beside it for approximately 15 feet.
Welch and her husband, William,[1] sued Keith Hodges for damages based on allegations of negligence and wanton misconduct and sued his father, Thomas Hodges, for damages based on negligent entrustment of an automobile. They also sued Southern Guaranty Insurance Company, their automobile insurance carrier, for underinsured motorist benefits. Southern Guaranty cross-claimed against the Hodgeses for any amounts it might have to pay the Welches in underinsured motorist benefits.
Thomas Hodges had an automobile liability insurance policy with Aetna Casualty & Surety Company (hereinafter "Aetna") with a $25,000 limit. The Welches had two separate automobile insurance policies with Southern Guaranty that had combined underinsured motorist coverage limits of $160,000.
Southern Guaranty moved to sever the underinsured motorist claim and to opt out of the proceedings, pursuant to Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala. 1988). In that motion, Southern Guaranty stated that it elected not to participate, "fully understanding and acquiescing in the knowledge that it will be bound by the factfinder's decisions as to liability and damage." The trial court granted that motion.
Sometime on or before May 19, 1989, Aetna offered $25,000, the amount of its policy limits, to the Welches, who, in turn, asked Southern Guaranty to settle the case. After Southern Guaranty refused to settle, Aetna offered to allow it to take over the Hodgeses' defense. This is confirmed by an affidavit from the attorney Aetna hired to defend the Hodgeses, in which he stated:
That letter, dated May 19, 1989, states, in pertinent part:
On the date set for trial, June 6, 1989, both sides waived their right to a jury trial and submitted the case to the trial court. Counsel for the Welches asked the trial court to award them $185,000, noting that the potential for punitive damages was "quite high." Counsel for the Hodgeses, as well as Keith's guardian ad litem, agreed to that amount because the Hodgeses "could be exposed to substantial damages over and above that amount ... and there is a potential for the claim to exceed this amount." Notwithstanding that it had had an opportunity to "opt back in" the case, Southern Guaranty did not participate in the June 6 proceedings. After hearing the arguments of counsel, the trial court entered a judgment against the Hodgeses and Southern Guaranty for $185,000.
Southern Guaranty argues on appeal that the trial court's judgment amounted to a ratification of a settlement between the Welches and the Hodgeses; that it had no notice of that settlement; and that, by deciding to opt out, it agreed to be bound by a factfinder's decision as to liability and damages, not by the agreement between the Welches and the Hodgeses that it says the trial court accepted. The Welches, on the other hand, argue that by failing to assume the Hodgeses' defense, Southern Guaranty waived any right to complain about the trial court's judgment, and that this case should be affirmed based on Auto-Owners Ins. Co. v. Hudson, 547 So. 2d 467 (Ala.1989). Southern Guaranty counters by arguing that that case, which was not decided until after the trial court had entered its judgment in this case, is inapplicable.
The same situation arose in Progressive Specialty Ins. Co. v. Hammonds, 551 So. 2d 333 (Ala.1989), where this Court applied Auto-Owners Ins. Co. v. Hudson, even though that case had not been decided at the time of the trial court's ruling:
551 So. 2d at 337.
In Auto-Owners Ins. Co. v. Hudson, the injured insured, Hudson, accepted the $50,000 liability limit from the tort-feasor's insurer, State Farm Insurance Company, and released both the tort-feasor and State Farm, as well as the tort-feasor's employer. Because Hudson's damages amounted to $70,000, he sought $20,000 in underinsured motorist benefits from his insurer, Auto-Owners. Hudson had notified Auto-Owners after the accident that he was negotiating a settlement agreement with State Farm. Auto-Owners refused to pay, claiming that Hudson had forfeited his right to underinsured coverage when he executed the release. This Court disagreed, stating:
547 So. 2d at 469 (emphasis added). See, also, Hardy v. Progressive Ins. Co., 531 So. 2d 885 (Ala.1988) (settlement and release *657 of an underinsured tort-feasor will not automatically preclude recovery of underinsured benefits where insured gives his underinsurance carrier notice of the tentative settlement prior to release).
As in the instant case, the underinsurer in Progressive Specialty Ins. Co. v. Hammonds, Progressive Specialty, claimed that it had no notice from its insured, Fuller, of the offer of the tort-feasor, Hammonds, to settle and that, consequently, Fuller's release of Hammonds did not destroy Progressive Specialty's subrogation rights. The record showed that Fuller's lawyer had written Progressive Specialty three months before Fuller signed Hammonds's release, stating that Hammonds was insured for only $25,000 and that Fuller intended to pursue his claims.[2] Progressive Specialty responded by sending Fuller several letters over the next few months in which it promised to make a decision on Fuller's claim "in the near future." 551 So. 2d at 337. This Court held that Progressive Specialty did have sufficient notice and that it did not act "reasonably" in protecting its subrogation rights.
A recent case factually very similar to the present one reached the same result regarding notice as did Progressive Specialty Ins. Co. v. Hammonds. In Champion Ins. Co. v. Denney, 555 So. 2d 137 (Ala. 1989), the insured, Denney, received a $100,000 default judgment against the tort-feasor after she had forwarded a copy of the summons and complaint to her insurer, Champion. Denney later sued Champion for the uninsured motorist benefits under her policy, $20,000. The trial court entered a summary judgment for her in that amount and this Court affirmed, holding that as long as an insurer has notice and an adequate opportunity to intervene and present any defenses and arguments necessary to protect its position, it will be bound by such a judgment.
As these cases make clear, our focus has been on whether an underinsured motorist insurance carrier has had adequate notice of potential settlements by its insured to bind it to subsequent judgments against it. We find from the record that Southern Guaranty had sufficient notice of the likelihood of a settlement between the Welches and the Hodgeses. Under Lowe v. Nationwide Ins. Co., supra, after Southern Guaranty was joined as a defendant in the Welches' suit, it had the choice of either participating in the trial or "opting out." In either case, it "would be bound by the factfinder's decisions on the issues of liability and damages." 521 So. 2d at 1310.
Once it had notice of the possible settlement between the Welches and the Hodgeses, Southern Guaranty should have "opted back in" to preserve its rights under the policy. Having decided not to participate in the trial, Southern Guaranty will not now be heard to complain of the judgment against it. The judgment of $185,000 for the Welches is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
MADDOX and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
This case seemingly follows this Court's decisions in Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala.1988), and Auto-Owners Ins. Co. v. Hudson, 547 So. 2d 467 (Ala. 1989), both of which establish a principle of law with which I disagree. I take this opportunity to point out once again why I think that those decisions fail to protect the contract rights of an insurer that is faced with a choice of "opting in or out" of a pending case.
As I stated in my special concurrence in Lowe,[3] our Rules of Civil Procedure, before the Lowe decision, were quite specific about the joinder of claims and remedies *658 when there was a liability insurance coverage question associated with the case. See Rule 18(c), Ala.R.Civ.P., and the commentary to Rule 42, involving consolidation of trials, wherein it is stated that "[t]hese rules make severance mandatory where a damage claim and a liability insurance coverage question are presented in the same jury action," and that "Rule 18(c) precludes consolidation when the issues are presented in separate jury actions."
This decision, I believe, expands the Lowe rule even further, in holding that an insurer, which has opted out of a pending case, is bound by a judgment entered by the trial court pursuant to a settlement agreement as to which the insurer was not given notice and an opportunity to be heard. The effect of the decision is to put insurers who elect to opt out of a case in the untenable position of being bound by any settlement made by the parties in the pending case and being bound to pay benefits based upon a settlement agreement rather than on a finding of liability and damages by a factfinder, whether judge or jury.
This case points out so graphically how an insurer, by being required to opt in or opt out of a lawsuit, can have its rights completely frustrated under its contract and under the rules of this Court.
I realize the utility of having all issues in a lawsuit, including the rights of a party like Southern Guaranty, settled in one action, but this Court, when it adopted Rule 18(c), Ala.R.Civ.P., intended that claims for damages and questions of liability insurance coverage should be severed. It may be that Rule 18(c) is no longer a good rule, but if that is the case, why not amend it properly rather than by a court decision like Lowe?
Clearly, Southern Guaranty's contract rights should be protected in any event. Forcing it to pay what it did not agree to pay is a method of taking property without due process. Insurers, like everyone else, should be accorded the right to be heard. I dissent.
STEAGALL, Justice (dissenting).
I believe that Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 (Ala.1988), requires a trial by a factfinder (either judge or jury) on the issues of liability and damages. Lowe holds:
521 So. 2d at 1310 (emphasis added).
In this case, as the majority states, Southern Guaranty, by not participating, agreed to be "bound by the factfinder's decisions." But there was no trial and thus no decision by a factfinder; there was, instead, a settlement between the parties. To hold that Southern Guaranty lost all of its rights under its policy without a trial sets bad precedent and ignores the mandates of Lowe.
I, therefore, respectfully dissent.
[1] William's claim was based on loss of consortium.
[2] The parties conceded that Fuller's damages exceeded $25,000.
[3] I concurred specially in Lowe, but only because counsel for the appellee confessed error in that case. In Lowe, I expressed the opinion that an insurer should not be forced to "opt in or out" of a pending proceeding in order to protect its rights. | September 28, 1990 |
d4524d21-4560-445b-8694-ba280f5a8af9 | Haygood v. Burl Pounders Realty, Inc. | 571 So. 2d 1086 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1086 (1990)
John Dow HAYGOOD and Dottie A. Haygood
v.
BURL POUNDERS REALTY, INC.; and Ashlock-Pounders Building Company.
89-1217.
Supreme Court of Alabama.
November 16, 1990.
*1087 J. Barry Mansell and Henry H. Self, Jr., Florence, for appellants.
Steve A. Baccus and Alice H. Martin of Almon, McAllister, Ashe, Baccus, and Tanner, Tuscumbia, for appellee Burl Pounders Realty, Inc.
J. Glynn Tubb of Eyster, Key, Tubb, Weaver & Roth, Decatur, for appellee Ashlock-Pounders Bldg. Co.
ADAMS, Justice.
This is an appeal from a summary judgment entered in favor of defendants Burl Pounders Realty, Inc., and Ashlock-Pounders Building Company in an action alleging fraud and misrepresentation with regard to a house purchased by them. We affirm.
On March 31, 1989, John Dow Haygood and his wife, Dottie, purchased a house from Bryan Ashlock and his wife, Tammy, who was a real estate agent for Burl Pounders Realty at the time of the sale.[1] The house had been constructed by Ashlock-Pounders Building Company; however, the Ashlocks had lived in it for approximately three years. Therefore, the sale was one of a "used" residence. See O'Connor v. Scott, 533 So. 2d 241 (Ala. 1988), wherein we held that a house was a "used" residence where a builder had constructed it for his own personal use and had lived in it for almost two years prior to the sale. The Haygoods allege that prior to purchasing the house, they inquired of the Ashlocks concerning the construction of the basement and whether the basement had ever leaked. They contend that Bryan Ashlock represented to them that the basement had been well built and that there had been no leakage problems. The Haygoods said that they purchased the house in reliance on the representations of the sellers. In July 1989, the basement of the house collapsed. The Haygoods sued the Ashlocks, the real estate agency, and the builders, alleging breach of warranty of habitability; this claim was later amended to add allegations of misrepresentation and fraud. Although the judge refused to enter summary judgment in favor of Tammy and Bryan Ashlock, the judge did enter summary judgment in favor of Burl Pounders Realty and Ashlock-Pounders Building Company. The court made that judgment final pursuant to Rule 54(b), A.R.Civ.P. The plaintiffs appealed.
First, the Haygoods argue that Ashlock-Pounders Building Company was not entitled to a summary judgment. We disagree. As stated above, the sale of this residence was not the sale of a new residence, and, therefore, it did not come with a warranty of habitability. The Ashlocks lived in the house for approximately three years before its sale and had considered it their home. They had even added a swimming pool in the backyard during the time that they resided there. The Haygoods contend that in spite of these facts, they were in privity with Ashlock-Pounders Building Company simply because two of the partners of the building company lived in the house and it had not previously been sold to a third party. Therefore, they argue, the trial judge should not have entered summary judgment against the builders. This argument has no merit. The Ashlocks considered this house to be their home for almost three years, and the fact that they were partners in the building company that built the house does not change the fact that the residence was conveyed by them, and not by the building company, to the Haygoods. The building company received no profits from the sale and had no part in the sale of the property.
The Haygoods also contend that Burl Pounders Realty was not entitled to a summary judgment, because, they say, Tammy Ashlock was an agent of the real estate agency when the house was sold. They also contend that Burl Pounders himself had made misrepresentations to them regarding the condition of the basement prior *1088 to their purchase. The misrepresentation allegedly made by Burl Pounders was set forth in the affidavit of Mrs. Haygood, which stated as follows:
Although the Ashlocks deny having had knowledge of any defects in the basement, the Haygoods offered evidence that Bryan Ashlock, in 1986, had hired someone to do some patching and repair work on leaks that were occurring there. Mr. McClure, who was hired by the Ashlocks to do the repair work, stated the following in his affidavit:
Because Tammy Ashlock was an agent of the real estate agency, the appellee, Burl Pounders Realty, contends that she was required, as a manner of custom and practice, to transact the sale of her home through the real estate agency and that that is the reason Burl Pounders Realty received a commission on the sale. No other agent from the real estate agency showed the Ashlocks' home to potential buyers. Pounders also contends that prior to the closing of the loan, the Ashlocks asked the Haygoods to sign an "as is" statement. Although the Haygoods argue that the Ashlocks told them that the effect of such a statement would be as to appliances only, Pounders contends that the statement itself states otherwise and indicates that the Haygoods did not rely on any pre-sale statements regarding the condition of the basement. Pounders relies on the case of Massey v. Weeks Realty Co., *1089 511 So. 2d 171 (Ala.1987), wherein this Court held that where representations were made to a purchaser who later signed an "as is" statement, as well as a purchase agreement containing the following provision, that purchaser could not have relied on the previous statements of the seller:
Massey, supra, at 172. In the present case, the Haygoods signed an "as is" statement in addition to a sales contract containing the following provision:
The Haygoods have alleged that they were induced to sign the "as is" clause by assurances of the Ashlocks that it related only to the appliances in the house.
There is no evidence in the record that the Haygoods relied on the representations, if any, of Burl Pounders Realty, Inc. The record indicates that the Haygoods allege that they relied on the statements of the Ashlocks, despite the "as is" clause and the above-quoted clause in the contract. Nowhere, however, is there an allegation that the Haygoods specifically relied on representations of Burl Pounders Realty, Inc. However, even if they had made such an allegation, the plaintiffs' signing of the two documents that indicated no reliance would have made the summary judgment for Burl Pounders Realty proper.
For the foregoing reasons, the judgment in this case is hereby affirmed.
AFFIRMED.
MADDOX, ALMON and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result.
[1] Tammy Ashlock is also the daughter of Burl Pounders, the owner-operator of that realty company. | November 16, 1990 |
52dfd5e6-bec1-4979-90bf-e3634d643b12 | Stallworth v. Stallworth | 131 So. 2d 867 | N/A | Alabama | Alabama Supreme Court | 131 So. 2d 867 (1961)
Elsie Mae B. STALLWORTH
v.
Nicholas B. STALLWORTH.
I Div. 941.
Supreme Court of Alabama.
June 29, 1961.
Scott & Porter, Chatom, for appellant.
Grady W. Hurst, Jr., Chatom, for appellee.
STAKELY, Justice.
This case involves a suit for divorce and for the custody of minor children of the parties.
Appellant Elsie B. Stallworth, respondent in the Circuit Court, is a native of Louisiana. Appellant and appellee, Nicholas B. *868 Stallworth, complainant in the Circuit Court and a resident of Washington County, Alabama, were married in Louisiana in 1943, while appellee was in military service. During the war the parties lived in Louisiana and at various military posts about the United States. Upon his discharge from the service they returned to Louisiana, where appellee was a student at Louisiana State University. In 1948, upon appellee's graduation from that University, the couple moved to appellee's home in Vinegar Bend, Washington County, where they resided until June 1959, when appellant left and went to the home of her parents in Baton Rouge, Louisiana, where the two minor children of the marriage, Nicholas Richard Stallworth, then age fourteen, and Darryl Clarke Stallworth, then age eight, were already visiting.
The facts of the cause of the separation of the parties were in dispute in the lower court. No good purpose can be served by setting out this evidence, since, as we shall undertake to show, consideration of this evidence is not necessary to a determination of this cause.
On July 6, 1959, ten days after leaving her husband, appellant filed in the Family Court of the Parish of East Baton Rouge, Louisiana, a petition seeking a separation "a mense et thoro", provisional and temporary custody of the children and permanent custody after hearing. On July 15, the Louisiana Court issued a decree giving appellant temporary custody of the children and appointed a Baton Rouge attorney as "curator ad hoc" to represent the appellee in those proceedings, substituted service being made upon the "curator ad hoc", in accordance with the Louisiana procedure, and notice of the proceedings being given to appellee by registered mail. Subsequently the appellee appeared by attorney in the Louisiana court and filed a pleading known as an "Exception to Citation", contesting the form of service. This "Exception" was overruled and appellee made no further appearance or contest in the Louisiana court.
On September 29, 1959, the Louisiana Court entered a final decree awarding to the appellant a divorce "a mense et thoro" and the custody of the children.
Meanwhile, on July 31, 1959, appellee had filed his bill in the Circuit Court of Washington County, in Equity, alleging the residence of the complainant (appellee) and the matrimonial domicile of the parties to be Washington County, alleging abandonment by the wife (appellant), and asking, in addition to general relief, an award of custody of the children and an injunction to restrain appellant from further proceedings in foreign jurisdictions, and, by later amendment, asking a divorce. The court entered on July 31, 1959, a temporary order awarding the custody of the children to appellee and issuing the injunction prayed for. Service was had upon appellant by newspaper publication for four successive weeks beginning in September 1959.
On October 29, 1959, appellant made a special appearance in the Circuit Court of Washington County, in Equity, for the purpose of filing what is called a plea in abatement, alleging that she was a bona fide resident of the State of Louisiana and setting forth the proceedings in the Louisiana Court. Following a hearing the court overruled the plea and, at a later time, overruled the plea as it was refiled to the bill as amended. Appellant declined to appear or plead further and a decree pro confesso was entered against her. Finally, on September 10, 1960, the court entered a final decree granting the appellee a divorce on the ground of voluntary abandonment by appellant and awarding to the appellee the custody of the two children. From this decree appellant appeals.
As we have indicated, appellee in his original bill filed in the lower court sought relief and by amendment specifically sought a divorce on grounds of abandonment. The bill, filed July 31, 1959, alleges that "the respondent * * * abandoned the complainant without just cause or legal excuse on June 26, 1959 * * *." Title 34, § 20, *869 Code of 1940, as amended, provides in its material part that, "The circuit court in equity has power to divorce persons from the bonds of matrimony, upon bill filed by the aggrieved party, for the causes following: * * * 3. For voluntary abandonment from bed and board for one year next preceding the filing of the bill." (Emphasis added.) It is clear that according to the allegations of appellee's original bill itself the alleged abandonment by the appellant was, at the time the bill was filed, a little over a month in duration, and certainly did not meet the statutory requirement of one year. On June 29, 1960 appellee amended his bill to add thereto: "That the respondent, Elsie May B. Stallworth, voluntarily abandoned the bed and board of complainant for more than one year next preceding the filing of this amendment to the bill of complaint, since which time complainant and respondent have not lived together nor in any way recognized each other as husband and wife."
By its own terms the amendment to the bill, and consequently the bill as amended, states that the abandonment was for one year "next preceding the filing of this amendment," a point in time nearly eleven months after the filing of the original bill. The requirement of the statute, Title 34, § 20, is that the voluntary abandonment before one year "next preceding the filing of the bill." Accordingly a year's abandonment most of which was subsequent to the filing of the bill is not a year's abandonment preceding the filing of the bill. We think that this conclusion is apparent from the wording of the statute, and further, that it is consistent with our view that the abandonment must be "the year nearest to the time of the filing of the bill." Cox v. Cox, 268 Ala. 572, 109 So. 2d 703, 705; Winning v. Winning, 262 Ala. 258, 78 So. 2d 303.
As we have pointed out, appellant made no general appearance in the circuit court and hence there was in that court no challenge to the merits or sufficiency of the bill or the bill as amended, though that challenge has been made on appeal. This court in Tillery v. Tillery, 217 Ala. 142, 115 So. 27, has said, however, that
See also Ex parte Mercer, 255 Ala. 3, 49 So. 2d 670; Anthony v. Anthony, 221 Ala. 221, 128 So. 440.
In Edelman v. Poe, 267 Ala. 387, 103 So. 2d 333, 334, this court said: "The rule is that when a bill is filed which is not sufficient to invoke the jurisdiction of the court an amendment will not confer jurisdiction by alleging facts which occur after the original bill was filed, which facts would have been sufficient had they existed when the bill was filed." See also Harper v. Raisin Fertilizer Co., 158 Ala. 329, 48 So. 589; Equity Rule 28(2).
The decree of divorce entered in the Circuit Court of Washington County, in Equity, is based on abandonment and in accordance with the foregoing authorities is void for want of jurisdiction and thus insufficient to support the appeal. Tillery v. Tillery, supra.
*870 While we have condemned the portion of the court's decree which awarded the divorce, this does not necessarily require us to invalidate the entire decree. Avery Freight Lines Inc. v. Persons et al., 250 Ala. 40, 32 So. 2d 886. It is true that the court appears to have proceeded under the authority of § 35, Title 34, Code of 1940, to make an award of the custody of the children to the complainant. But this court has said that regardless of the statute, "whenever the welfare of the children is concerned and the jurisdiction of the court is invoked, the court has an inherent power to enter a decree for their custody and support." Butler v. Butler, 254 Ala. 375, 377, 48 So. 2d 318, 319. In the instant case the jurisdiction of the court with reference to the children was sought to be invoked by the following allegations in the bill of complaint:
As we have pointed out, prior to the time the present bill was filed in the Circuit Court of Washington County, in Equity, a suit was filed by Elsie Mae B. Stallworth (appellant here) against Nicholas B. Stallworth (appellee here) in the family court of the Parish of East Baton Rouge, Louisiana, seeking a separation "a mensa et thoro," provisional and temporary custody of the children and permanent custody after hearing. As we have also pointed out, on July 15, 1959, the Louisiana Court entered a decree giving to the appellant here temporary custody of the children and appointing a Baton Rouge Attorney as "curator ad hoc" to represent Nicholas B. Stallworth in those proceedings. Substituted service being made on the "curator ad hoc" and notice of the proceedings being given to the appellee here by registered mail, subsequently Nicholas B. Stallworth (appellee here) appeared by attorney in the Louisiana Court and filed a plea known under the Louisiana Practice as "an exception to citation," contesting the form of service. This "exception" was overruled and Nicholas B. Stallworth made no further appearance or contest in the Louisiana Court. On September 29, 1959, the Louisiana Court entered a final decree, awarding to Elsie Mae B. Stallworth a divorce a mensa et thoro and the custody of the children.
It will be observed that Nicholas B. Stallworth entered a special appearance in the court in Louisiana in order to question the jurisdiction of the Louisiana Court and was overruled by that court. The question of jurisdiction of the Louisiana Court was, therefore, settled prior to the time that the decree in Washington County was entered. In this connection it will be remembered that the suit in the Louisiana Court was filed prior to the time the suit in Washington County was filed.
In the case of Ex parte Aufill, 268 Ala. 43, 104 So. 2d 897, 902, this court said, "At this point we divert long enough to say that it makes no difference that Capt. Aufill entered a special appearance in the California Court and not a general appearance. So far as the question of jurisdiction is concerned, he was personally before the California Court."
In the case of Forbes v. Davis, 187 Ala. 71, 65 So. 516, this court held that if a judgment of a sister state was properly authenticated and produced on the trial of the case in Alabama and there was a want of jurisdiction to render the judgment that does not appear upon the face of the properly certified transcript, then it must be presumed prima facie that the court rendering it had jurisdiction to do so. In the case here referred to this court further held that if the court rendering the judgment in another *871 state did so in an illegal and improper manner and had no jurisdiction to do so, the burden was on the defendant to assert that fact and produce evidence to overcome the presumption.
The proceedings in the Louisiana Court, including the decree properly authenticated, were introduced in evidence in the Washington County Court. Since the decree of the Louisiana Court appears on its face to be a valid and binding decree and nothing appearing that the Louisiana Court did not have jurisdiction, then full faith and credit must be given to the decree of the Louisiana Court.
In Ex parte Burch, 236 Ala. 662, 184 So. 694, this court held that where two or more courts have concurring jurisdiction, the one who first takes cognizance of a cause has the exclusive right to entertain and exercise such jurisdiction to the final determination of the action and the enforcement of its judgments or decrees. In this connection see also Little v. Little, 249 Ala. 144, 30 So. 2d 386, 171 A.L.R. 1399; Burns v. Shapley, 16 Ala.App. 297, 77 So. 447.
A mother armed with a duly authenticated decree of a court of competent jurisdiction awarding custody of children to her as the agent and trustee of the state is entitled to the custody of such children. State v. Black, 239 Ala. 644, 196 So. 713. The children were present in Louisiana with their mother. Moss v. Ingram, 246 Ala. 214, 20 So. 2d 202.
We think it necessarily follows from the foregoing that since the jurisdiction of the Louisiana Court was invoked prior to the time the suit in Washington County was filed, that its decree with reference to the children supersedes the decree of the court in Washington County and that the Circuit Court of Washington County, in Equity, was in error in awarding the custody of the children to Nicholas B. Stallworth. It results that the decree of the Circuit Court of Washington County, in Equity, with reference to the children should be and is reversed.
Appeal dismissed in part and decree reversed and remanded in part with directions to the lower court to dismiss the bill.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur. | June 29, 1961 |
b4c087b3-9450-44c1-952b-eaf4d5f830a9 | Southern Life and Health Ins. Co. v. Turner | 571 So. 2d 1015 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1015 (1990)
SOUTHERN LIFE AND HEALTH INSURANCE COMPANY and Richard Perry
v.
Lucy R. TURNER.
88-1289.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied December 7, 1990.
Ollie L. Blan, Jr. of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, and Ernestine S. Sapp of Gray, Langford, Sapp & McGowan, Tuskegee, for appellants.
Delores R. Boyd of Mandell & Boyd, Montgomery, and Jock M. Smith, Tuskegee, for appellee.
HORNSBY, Chief Justice.
This appeal is from a judgment entered in favor of Lucy R. Turner and against *1016 Southern Life and Health Insurance Company ("Southern") and Richard Perry for $500,000 in a fraud action. Southern and Perry argue that the judgment should be reversed because, they say, Turner failed to present sufficient evidence of fraud, and Southern argues that Turner failed to present evidence that it ratified the actions of Perry.
In January 1986, Perry was hired by Southern as a salesman. His duties included servicing a "debit route," wherein he traveled from house to house on a weekly basis to collect premiums from Southern's policyholders. Turner was one of the policyholders on Perry's route. In 1985 she had purchased a $1,500 life insurance policy on her aunt, Lucy Barrow, who was living with her at that time, naming herself as the beneficiary. We will refer to that policy as the Turner/Barrow policy. Southern had previously issued a policy on Barrow's life with a face value of $1,000, with Grace Banks, Barrow's daughter, as the beneficiary. That policy will be referred to as the Banks/Barrow policy. Turner paid the premiums on both of those policies at all times relevant to this action.
The testimony of Turner and that of Perry were in sharp conflict on almost every material fact regarding the course of their dealings. According to Turner's version of the facts, she paid the premiums that were due on both the Turner/Barrow policy and the Banks/Barrow policy on time up until the month that Barrow died, October 1986. She stated that, as far as she knew, those policies were in force at that time and had never lapsed. Turner stated that Perry never told her that the premium payments were behind or indicated that her policy was in danger of lapsing. That testimony was substantially corroborated by Turner's son, Alvin. Jonas Bowen, the Southern agent in charge of the debit route before Perry, testified that Turner had always made her payments on time when he was servicing the debit route. Bowen also testified that it was Southern's practice to assign to the debit agent the responsibility of notifying the owners of policies with face values of less than $10,000 when their policies lapsed.
Perry testified that Turner was frequently late with premium payments and sometimes skipped them altogether. He stated that, eventually, both the Turner/Barrow policy and the Banks/Barrow policy had lapsed and were in danger of being terminated. Perry stated that he made Turner aware of the status of those policies and recommended that she apply all of the overage[1] that had accumulated on both of the policies to the Banks/Barrow policy. According to Perry, he did not know that Turner was not the beneficiary of the Banks/Barrow policy. Perry testified that Turner agreed to his suggestion. Perry then applied the overage to the Banks/Barrow policy, but continued to collect premiums on both it and the Turner/Barrow policy.
After Barrow died, Turner told Perry that she wished to file a claim on the Turner/Barrow policy. According to Turner's testimony, Perry came by her home in November 1986 and gathered all of the documents in Turner's possession that related to that policy. She said that those documents included a premium receipt card, the only evidence held by Turner that showed that she had made her premium payments. Perry testified that he did not take any documents relating to the Turner/Barrow policy from Turner's home and that he told Turner that he could not file a claim on the policy because it had lapsed.
Turner further testified that for months she heard nothing regarding the status of her claim. In March 1987, Turner went to Southern's district office in Opelika and inquired about her claim. At that meeting she was told that Southern had no record of the Turner/Barrow policy or of her claim. According to Turner, Perry came to *1017 her home the following month and explained the reason for the delay. She testified that Perry told her that Southern did not have $1,500 to pay her claim, but that he and his "boss man" had agreed to pay Turner $500 a month for three months to satisfy her claim. The following month, according to Turner, Perry came to her home and gave her an envelope containing $500 in $20 bills and asked her if she was "satisfied." Turner's testimony concerning that visit by Perry, and the payment of $500, was corroborated by Alvin Turner and by Miller Ephraim, a family friend. Both men testified that they were present when Perry paid the $500, and both testified that they counted the money.[2]
Turner testified that the following day she and Ephraim went to the office of the Alabama Insurance Department in Montgomery. At that office, Turner said, she told Michael DeBellis of the Consumer Protection Division about her problems with Perry and Southern and showed him the envelope containing $500. She said that DeBellis told her he would look into her complaint, but that his investigation was dropped when DeBellis learned that Turner had retained a lawyer and filed an action against Perry and Southern.[3] This testimony was corroborated by DeBellis and Ephraim.
Perry denied offering to pay Turner $1,500 in installments and denied giving her $500 in May 1987.
Southern and Perry argue that they were entitled to a judgment notwithstanding the verdict on the grounds that Turner did not present sufficient evidence of each of the elements of fraud. Turner's complaint was filed on June 8, 1987, and was therefore subject to the "scintilla rule." Ala.Code 1975, § 12-21-12 (Supp.1989).
The elements of fraud are: (1) a misrepresentation (2) of a material fact (3) that was relied upon by the plaintiff, (4) who was damaged as a proximate result of the misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752, 754 (Ala. 1981). The elements of fraud based on the suppression of material facts are: (1) a duty to disclose facts; (2) concealment or non-disclosure of material facts by the defendant; (3) inducement of the plaintiff to act; and (4) action by the plaintiff to his injury. Gary v. Kirkland, 514 So. 2d 970, 972 (Ala.1987).
The trial judge presented Turner's claim to the jury with the following instruction:
Under that instruction, the jury could have properly returned a verdict against Southern only if it found that Perry's conduct was either authorized or ratified by Southern. There was evidence to support such findings. Under the instructions given to the jury, the trial court's denial of Southern's motion for J.N.O.V. was not error.
However, the instruction did not allow the jury to consider the theory of respondeat superior, which Turner requested the court to present to the jury. Under respondeat superior, a principal can be liable in *1018 tort for its agent's acts that are done within the scope of employment, either real or apparent, even though the principal did not authorize such acts or even expressly forbade them. No evidence of authorization or ratification is needed. That theory has been extended to cases where the fraud was committed for the agent's own benefit and to the principal's detriment. 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); Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 305 (Ala.1986); Joyner v. AAA Cooper Transportation, 477 So. 2d 364, 365 (Ala.1985).
Pursuant to Rule 50(d), A.R.Civ.P., the plaintiff has properly raised the issue of whether she was entitled to an instruction on the law of respondeat superior. We agree that such an instruction should have been given to the jury in this case. We note that had the jury returned a verdict on respondeat superior based on the evidence before us, that verdict would have been amply supported by the evidence.
In light of the fact that the relationship between agency and respondeat superior is often confused, we do believe that a comment on that relationship is appropriate. The distinction between the law of agency and the law of respondeat superior is subtle.
3 Am.Jur.2d Agency § 280 at 783 (1986).
Alabama follows the rule stated in Am. Jur.2d. In Autrey v. Blue Cross & Blue Shield of Alabama, 481 So. 2d 345 (Ala. 1985), the Court stated:
Id. at 347-48 (citing National States Insurance Co. v. Jones, 393 So. 2d 1361, 1376 (Ala.1980), and quoting from Old Southern Life Insurance Co. v. McConnell, 52 Ala. App. 589, 594, 296 So. 2d 183, 186 (1974)). Based on the foregoing analysis, the Court in Autrey found that there was sufficient evidence to raise a factual issue that warranted reversing a summary judgment on the issue of whether a representative of the defendant insurance company was acting within the scope of his employment when he represented to the insurance applicant the effective date of coverage. See also, Craft v. United States, 542 F.2d 1250, 1254-55 (5th Cir.1976); Scott v. Great Atlantic & Pacific Tea Co., 338 F.2d 661 (5th Cir.1964); Pacific Mutual Life Ins. Co. v. Haslip, 553 So. 2d 537, 541-42 (Ala.1989), cert. granted, ___ U.S. ___, 110 S. Ct. 1780, 108 L. Ed. 2d 782 (1990); AVCO Corp. v. Richardson, 285 Ala. 538, 541-42, 234 So. 2d 556, 559-60 (1970); Perfection Mattress & Spring Co. v. Windham, 236 Ala. 239, 182 So. 6 (1938); Hardeman v. *1019 Williams, 150 Ala. 415, 418-21, 43 So. 726 (1907).
The above authorities make it clear that, under circumstances analogous to those in the present case, the actual basis of a principal's liability turns on the doctrine of respondeat superior. It follows that the rule that a principal may be held liable for the acts of his agent by ratifying them is a subpart of the broader rule of respondeat superior, which imputes liability to a principal (employer) for acts of an agent (employee) performed within the scope of the agent's (employee's) employment. In effect, the instruction given by the trial court on ratification required the plaintiff to meet a more stringent requirement of proofproof of ratification rather than proof of action within the scope of employment. Further, in the context of the facts of this case, a scintilla of evidence sufficient to raise the issue of ratification also serves equally well, or better, to raise the issue as to whether Perry's action was within the scope of his employment by Southern. Because we find that there was a scintilla of evidence tending to show Southern's knowledge of or ratification of Perry's fraud, the trial court's error in failing to charge on respondeat superior was harmless, because the plaintiff was able to meet the heavier burden and the defendants were obviously not prejudiced. Holloway v. Robertson, 500 So. 2d 1056 (Ala.1986).
A motion for J.N.O.V. must be denied if there is a scintilla of evidence in support of the plaintiff's claims. Gadsden Paper & Supply Co. v. Washburn, 554 So. 2d 983 (Ala.1989). In the Gadsden Paper case, this Court stated:
In his Hammond order,[4] the trial judge stated:
(Emphasis supplied.)
We agree with this conclusion by the trial judge. The jury heard evidence from the plaintiff and other witnesses tending to indicate Southern's knowledge of Perry's fraud. The plaintiff and other persons clearly testified that Perry came to her home and gave her $500 and that Perry told her that he and "his boss man" had decided to pay her $1500 over a three-month period. Such evidence supports the inference that Perry had communicated his fraud to his superiors, and that this payment scheme was an attempt to "hush" the plaintiff.
In addition, we note that the route lists that were maintained at Southern's corporate offices in Opelika clearly showed that Perry had diverted monies from the "overage" on the Turner/Barrow policy to the Barrow/Banks policy. Yet, when Turner's policy lapsed for failure to pay the premium, Southern provided no notice of lapse to Turner.
Turner testified that she went with Miller Ephraim to Southern's regional office in Opelika, Alabama, to inquire about the non-payment of her claim on the "lapsed" policy. She was informed that the policy had lapsed and that no claim for benefits had ever been filed. Moreover, testimony showed that it was only after her inquiry at the Opelika office that Perry told her that he and "his boss man" would pay the plaintiff $500 a month for three months in settlement of her claim. We believe that the jury could reasonably infer from such evidence that Perry was notified of Turner's claim through the Southern office, and that therefore Southern was cognizant of and approved Perry's actions.
The above matters indicate at least a scintilla of evidence showing that Southern personnel had been informed of Perry's fraud and then schemed to conceal it by paying the plaintiff "hush money." It is axiomatic that one may not undo a fraud by subsequent acts. National States Ins. Co. v. Jones, 393 So. 2d 1361, 1367 (Ala. 1980).
Thus, for the reasons set out above, the judgment is affirmed.
AFFIRMED.
SHORES, ADAMS and KENNEDY, JJ., concur.
JONES and HOUSTON, JJ., concur in result.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part; dissenting in part).
I concur in that portion of the opinion that affirms the $500,000 award in this case against Perry, but 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 the principle of law raised in this case is the same as that presented in that case. Therefore, if the Supreme Court of the United States reverses this Court's judgment in that case, then the judgment in this case should also be reversed.
The trial judge gave the following instruction on the award of punitive damages:
Does the giving of that instruction alone suffice to guarantee to the defendants due process of law? I think not, but 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, supra.
I respectfully dissent from that portion of the opinion that affirms the judgment concerning the liability of Southern Life. I am of the opinion that there was no evidence that Southern Life was aware of, or ratified, Perry's acts or that Perry was acting within the line and scope of his employment. Thus, Southern Life should not be held liable.
[1] "Overage" is the term Southern and Perry used to denominate funds paid by a policyholder who was attempting to become current on delinquent premium payments. Those funds would be held by the agent and set aside until the balance equalled the full amount owed on the policy. At that time it would be applied to the policy, which would then be considered back in force.
[2] Miller Ephraim died before the trial began. His testimony had been procured by deposition some months before his death.
[3] Turner's original complaint contained allegations of breach of contract, conversion, and fraud. However, only the fraud count was submitted to the jury.
[4] See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). | September 21, 1990 |
3be5cba2-6460-4a4f-adda-5eb7eba59f53 | Christiansen v. Hall | 567 So. 2d 1338 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1338 (1990)
Robert G. CHRISTIANSEN
v.
John R. HALL and Belinda Hall.
89-814.
Supreme Court of Alabama.
September 14, 1990.
*1339 William Swatek, Alabaster, for appellant.
Walter W. Kennedy III, Oneonta, for appellees.
HOUSTON, Justice.
In this case, a jury found for the defendants, John R. and Belinda Hall, and against the plaintiff, Robert G. Christiansen, on Christiansen's claims alleging nuisance and trespass caused by the construction of poultry breeder houses. Christiansen appeals, arguing three issues: whether the trial court erred in instructing the jury on mitigation of damages; whether the trial court erred in admitting the testimony of one of the defense witnesses; and whether the jury's verdict was against the great weight of the evidence. We affirm.
*1340 A recitation of the facts of the instant case would not aid the bench or the bar in an understanding of our resolution of the issues; therefore, we have not included one in this opinion.
Christiansen asserts that the trial court erred in charging the jury that he had a duty to mitigate his damages.
The trial court instructed the jury on the elements of nuisance and trespass causes of action and on Christiansen's burden of proof. The jury was instructed that if they were not reasonably satisfied that Christiansen had met his burden of proof of nuisance or trespass that "you [the jury] would go no further." Thereafter, the trial court instructed the jury on compensatory and punitive damages, concluding its instruction on damages with the following:
Christiansen objected to this charge, stating as follows:
Rule 51, A.R.Civ.P., provides:
In McElmurry v. Uniroyal, Inc., 531 So. 2d 859, 859-60 (Ala.1988), this Court held:
Christiansen stated no ground of objection to the instruction on mitigation of damages, unless the statement, "I believe that comes from a pattern jury charge," could be considered a ground for an objection. Even though the use of Alabama pattern jury instructions is "without prejudice to the rights of any litigant to make and reserve for review any objection thereto either as to form, substance or application" (Alabama Pattern Jury Instructions: Civil (1974) at X), the fact that the particular instruction comes from an Alabama pattern jury instruction is not a proper ground for objection.
Indeed, the charge did come from Alabama Pattern Jury Instructions and is a proper instruction applicable to the facts of this case. There is nothing for us to review on this issue.
The next argument is a tribute to the creativity of our state's Bar. "The rule" was invoked at the commencement of the trial, see McElroy's Alabama Evidence § 286.01 (3rd ed. 1977) ("Sequestration of or putting witnesses `under the rule'"). This rule requires that witnesses be excluded from the courtroom so that they will not hear each other testify. Christiansen does not contend that any of the witnesses for the defense were in the courtroom during any testimony or that any defense witness heard any other witness testify. Rather, Christiansen contends that "the rule" was violated by defense counsel's conferring with the Halls and a group of potential witnesses and friends of the Halls during a recess and that the trial court abused its discretion in allowing the testimony of a particular defense witness.
The evidence reveals not only that the testimony of this particular defense witness was largely cumulative of the testimony previously elicited from another defense witness whose testimony was admitted without objection, but also that Christiansen's *1341 counsel cross-examined that witness concerning his meeting with defense counsel.
The general rule is that excluding witnesses upon invocation of "the rule" (i.e., the rule requiring sequestration of witnesses) is a matter left largely to the discretion of the trial judge and that his decision will not be disturbed on appeal absent a showing of an abuse of discretion. Camp v. General Motors Corp., 454 So. 2d 958 (Ala.1984). Furthermore, our case law has consistently upheld trial court rulings that allowed testimony from witnesses who were present in the courtroom during all or a portion of the testimony of other witnesses. See Nationwide Mutual Insurance Co. v. Smith, 280 Ala. 343, 194 So. 2d 505 (1966); Sullivan v. Miller, 224 Ala. 395, 140 So. 606 (1932); Jones v. Coley, 219 Ala. 23, 121 So. 24 (1929); Thorn v. Kemp, 98 Ala. 417, 13 So. 749 (1893); Sidegreaves v. Myatt, 22 Ala. 617 (1853).
Based on the foregoing, we hold that the trial court did not abuse its discretion in allowing the testimony of the particular defense witness at issue. Indeed, "the rule" was not violated in the first instance.
The final issue presented is whether the trial court abused its discretion in denying Christiansen's motion for a new trial, which was based on a claim that the jury's verdict was contrary to the weight of the evidence.
No ground for reversal of a judgment is more carefully scrutinized or rigidly limited than the ground that the verdict of the jury was against the great weight of the evidence. See Kilcrease v. Harris, 288 Ala. 245, 259 So. 2d 797 (1972). Rather, there is a strong presumption of correctness of a jury verdict in Alabama, Wagner v. Winn-Dixie, 399 So. 2d 295 (Ala.1981), and that presumption is strengthened by the trial court's denial of a motion for a new trial. Chapman v. Canoles, 360 So. 2d 319 (Ala.1978). An appellate court must review the tendencies of the evidence most favorably to the prevailing party and indulge such inferences as the jury was free to draw. Ashbee v. Brock, 510 So. 2d 214 (Ala.1987). The reviewing court will not reverse a judgment based on a jury verdict unless the evidence is so preponderant against the verdict as to clearly indicate that it was plainly and palpably wrong and unjust. Mahoney v. Forsman, 437 So. 2d 1030 (Ala.1983); see, also, Ashbee v. Brock, supra.
In the instant case, the evidence regarding odor from the poultry breeder houses was conflicting, with some witnesses being offended and others either being unable to detect any odors, or, if they did, not finding them annoying. Taken as a whole, however, the evidence supports the jury's apparent conclusion that any odors generated by the breeder houses were not sufficient in magnitude or duration to rise to the level of a nuisance. See Coleman v. Estes, 281 Ala. 234, 201 So. 2d 391 (1967); see, also, Ala.Code 1975, § 6-5-120.
Likewise, viewing the evidence as a whole, the jury could have concluded that the Halls did not trespass upon Christiansen's property. There was conflicting evidence as to whether there was a white substance on the leaves of trees on Christiansen's property. There was no evidence as to what the white substance was, and it was not visible to everyone who saw the trees. There was no evidence that the Halls' breeder house operation was the cause of the invasion of the white substance onto Christiansen's property. Likewise, there was a dirt road adjacent to Christiansen's property; the jury could have reasonably inferred that if a white substance did invade Christiansen's property, the white substance was dust from the road.
Based on the foregoing, we hold that the weight of the evidence was not so preponderant against the jury's verdict as to indicate that it was plainly and palpably erroneous; rather, we hold that there was more than sufficient evidence to uphold the jury's finding. See Jawad v. Granade, 497 So. 2d 471 (Ala.1986). The jury, not this Court, was the trier of fact. Therefore, we hold that the trial court did not err in denying Christiansen's motion for a new *1342 trial after the jury returned a verdict for the Halls.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | September 14, 1990 |
f3c20e77-d961-4d94-b231-0d11b0203902 | Graham Foods, Inc. v. FIRST ALABAMA | 567 So. 2d 859 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 859 (1990)
GRAHAM FOODS, INC.
v.
FIRST ALABAMA BANK and Frank Hicks.
89-642.
Supreme Court of Alabama.
September 7, 1990.
Peter S. Mackey of Burns & Mackey, Mobile, for appellant.
Davis Carr and Henry A. Callaway III of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellees.
ALMON, Justice.
This appeal is from a summary judgment for the defendants, a bank and one of its officers, in an action alleging fraud. Graham Foods, Inc., Ray Graham, and Louis Graham,[1] brought this action against First Alabama Bank and Frank Hicks, alleging fraud, misrepresentation, breach of duty of good faith, breach of contract, and negligence. The trial court entered a summary judgment on all but the breach of contract and negligence counts and made that judgment final pursuant to Rule 54(b), Ala. R. Civ. P. Graham Foods argues that it *860 presented sufficient evidence of fraud to withstand the defendants' summary judgment motion.
Graham Foods is an Alabama corporation engaged in the seafood processing business in Bayou La Batre. In December 1985 Ray and Louis Graham, who are the sole officers, directors, and stockholders of Graham Foods, approached Hicks, a vice president and branch manager of First Alabama, about increasing by $50,000 a line of credit that First Alabama had extended to Graham Foods. According to the Grahams and their accountant, Louis Paul Landry III, Hicks said that First Alabama would grant the loan. Landry testified in his deposition:
Landry recalled that meeting as having taken place in late December 1985 or early January 1986. Ray Graham (hereinafter "Graham") testified similarly about Hicks's assurances about the loan. For example, Graham testified that Hicks told him that approval of the loan by the bank's credit committee "was a formality and was no obstacle."
The complaint alleged, and Graham testified in his deposition, that, when the loan was not presented to the bank's credit committee in January, February, or March, Hicks "gave excuses"; that in March Hicks told Graham "to write checks in excess of the funds [Graham Foods] had on deposit with his institution and that those checks would be paid without an overdraft charge to the plaintiffs"; that the company issued such checks in excess of its balance on deposit, largely to purchase additional inventory and expand the operation; and that, when it received its statement on or about April 7, 1986, it discovered that the bank had not honored the checks and had charged its account $5,009.01 in account charges, most of which were for overdrafts. The complaint continued:
These allegations were substantiated not only by Graham's deposition, but also by Landry's deposition. He testified that, after the bank started charging Graham Foods for overdrafts, he went with Graham to Hicks's office, and that "at that time [Hicks] said don't worry about it, they're going to be reversed, it's just aa bank bureaucracy and it's hard to get things done, or something to that effect, but it was going to be added back to his account."
In his deposition, Hicks denied ever assuring the Grahams that the loan would be approved and stated that, at the time of the Grahams' loan application, he did not know whether the loan would be approved or not. *861 He also testified that he told Graham that the overdraft charges could not be reversed.
The alleged fraud consists of Hicks's alleged statements that the bank would lend Graham Foods the additional money and that the overdraft charges would be "reversed," that is, credited back to the account. Graham Foods concedes that its complaint alleges only promissory fraud, because the alleged misrepresentations concerned actions to be taken in the future. Because fraud requires a misrepresentation of a material existing fact, an action for promissory fraud requires proof of the promisor's intent at the time of making the representation not to perform the act promised, that is, proof that he had a present intent to deceive. Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983); Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So. 2d 23 (1963); Nelson Realty Co. v. Darling Shop of Birmingham, Inc., 267 Ala. 301, 101 So. 2d 78 (1957).
The parties correctly cite three recent decisions by this Court as involving similar facts. Pavco Industries, Inc. v. First Nat'l Bank of Mobile, 534 So. 2d 572 (Ala. 1988); McIntyre Elec. Service, Inc. v. SouthTrust Bank of Mobile, 495 So. 2d 1043 (Ala.1986); and Russellville Production Credit Ass'n v. Frost, 484 So. 2d 1084 (Ala.1986). In each of those cases, the Court affirmed a judgment in favor of a creditor against a debtor's fraud claim based on allegedly promised credit that was not extended.
In Pavco Industries, a bank officer admittedly represented that he would recommend that the bank continue to extend the debtor's line of credit so long as the debtor's business continued to show improvement. The debtor argued that the officer went further, however, and promised that the bank would not exercise the demand feature of the note or reduce the amount of credit extended before a certain date. The Court affirmed a summary judgment for the bank, holding that "The materials submitted in support of the summary judgment motion made a prima facie showing that [the loan officer] had no present intent to deceive at the time he made the representations concerning continuance of the line of credit, and the materials presented in opposition did not show a genuine issue of fact in that regard." 534 So. 2d at 576.
In McIntyre Electric, the complaint alleged that the bank, "through its agent Rick L. Chastain, misrepresented that it would `stand behind McIntyre financially in order that McIntyre Electric might reach financial stability.'" 495 So. 2d at 1044. The bank did renew McIntyre Electric's line of credit, which allowed it to successfully bid on and perform a subcontract, but, when McIntyre Electric had not improved its financial condition or reduced the loan balance at the end of the subcontract, the bank demanded payment of the loan. The Court affirmed a summary judgment for the bank, holding that there was no evidence of an intent not to perform the alleged promise:
495 So. 2d at 1043.
In Russellville Production Credit Ass'n, an officer of the credit association allegedly promised "`to go along with [Frost]' for the 1984 crop loan," 484 So. 2d at 1086. Frost entered into a lease of cropland, allegedly in reliance on that promise, but later refused to execute a mortgage on his house when the association asked for such a mortgage to secure the loan. When that refusal led to the association's refusal to give the loan, Frost brought an action for fraud and breach of contract and won a verdict and judgment in his favor. This Court reversed the judgment because of the denial of the association's motion for directed verdict on the fraud count and rendered judgment on that count, holding *862 that there was no evidence of intent to deceive at the time the promise was made.
Just as in those cases, there was no proof in this case that Hicks intended for the bank not to increase the line of credit or that he intended to deceive the Grahams when he allegedly promised that the loan would be approved. Graham Foods argues that Hicks's testimony, that he had no way of knowing whether the credit committee would approve the loan and that he did not assure Graham and Landry of the loan's approval, is evidence that the representations to which they have testified were false. Because the evidence must be looked at in a light most favorable to the non-moving party in reviewing a summary judgment motion, Pittman v. Gattis, 534 So. 2d 293 (Ala.1988), we accept the testimony that Hicks did assure Graham and Landry that Graham Foods would receive the loan.
Nevertheless, a finding that Hicks promised the loan, coupled with the fact of his denial of such a promise, does not prove intent to deceive. It tends to prove that he recklessly made statements beyond his authority, but not that he intended that Graham Foods not receive the loan or that he intended to deceive Graham and Landry. Reckless misrepresentation will not support a charge of promissory fraud. Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295 (Ala.1989); Kennedy Electric Co. v. Moore-Handley, Inc., 437 So. 2d 76 (Ala.1983). Thus, the assurances that Graham Foods would receive the loan will not support a fraud claim.
The alleged representations that the overdraft charges would be reversed present a somewhat different question. Hicks testified that he could not give such a credit, that he told Graham so, that it was against bank policy to do so, and that he afterwards confirmed that position with his superior. Thus, if we accept Graham and Landry's testimony that Hicks did make such a representation and accept the portions of Hicks's testimony that he knew such a refund could not be made, a finding of intent not to perform and intent to deceive could be sustained.
Hicks and the bank argue that this alleged misrepresentation cannot support a claim of fraud because, even accepting the facts as alleged by Graham Foods, Hicks did not represent that he had the authority to reverse the charges. They point to Landry's testimony that Hicks said that, because of the "bank bureaucracy," it was "hard to get things done," and argue that, thus, Hicks did not represent that he could accomplish the reversal of charges. That testimony is susceptible of an inference, however, that Hicks implied that the reversal would be done on his authority, but that it took time to work through channels.
Thus, Graham Foods has stated and supported a colorable fraud claim regarding its allegation that, when Graham telephoned Hicks on or about April 7, Hicks assured him that the overdraft charges would be reversed and that, in reliance thereon, Graham continued to write checks on the additional $50,000 that Hicks had said was forthcoming from the bank. In this respect, the trial court erred in entering summary judgment for the defendants on the fraud claim.
The judgment is affirmed except as to the portion of the fraud claim alleging intentional misrepresentations regarding the overdraft charges, in which respect it is reversed, and the cause is remanded.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] The trial court granted the defendants' motion to strike Ray and Louis Graham as parties plaintiff. That ruling is not before this Court on this appeal; Graham Foods is the sole appellant. | September 7, 1990 |
3567e8aa-c419-4474-bf39-b1ca5773c864 | Wright v. Alan Mills, Inc. | 567 So. 2d 1318 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1318 (1990)
Alfred E. WRIGHT
v.
ALAN MILLS, INC., and Roberta Goza.
88-1166.
Supreme Court of Alabama.
September 14, 1990.
W.N. Watson of Watson & Watson, Fort Payne, for appellant.
Michael L. Brownfield, Fort Payne, for appellees.
KENNEDY, Justice.
The plaintiffs, Curtis Gene Wright, Sheri Deann Wright, and Alfred E. Wright, sued Alan Mills, Inc. (the "corporation"), and Roberta Goza, alleging that they had failed to pay on certain promissory notes made by the corporation to the plaintiffs. The complaint also alleged that Ms. Goza had breached a contract with Alfred Wright that granted Wright minority ownership status in the corporation.[1] Ms. Goza and the corporation counterclaimed against Alfred Wright, alleging that he had procured the contract by fraud and that he had breached it. The trial court, after hearing ore tenus evidence, found for the plaintiffs and against the corporation on the claim based on the promissory notes. The trial court ruled in favor of Ms. Goza on her counterclaim against Alfred Wright.
Alfred Wright appeals the trial court's refusal to hold Ms. Goza personally liable for the judgments against the corporation on the promissory notes. The only issue is whether the trial court erred in refusing to "pierce the corporate veil" and thereby to impute the liability of the corporation on the notes to Ms. Goza personally.
*1319 At the outset, we note that a corporation is a distinct entity to be considered apart from the individuals who operate it, and that a corporation's obligations and transactions are to be considered separately from those of the corporation's stockholders. East End Memorial Association v. Egerman, 514 So. 2d 38, 42 (Ala.1987). However, a "`separate corporate existence will not be recognized where a corporation is so organized and controlled and its business conducted in such a manner as to make it a mere instrumentality of another.'" Woods v. Commercial Contractors, Inc., 384 So. 2d 1076, 1079 (Ala.1980), quoting Forest Hill Corp. v. Latter & Blum, Inc., 249 Ala. 23, 28, 29 So. 2d 298, 302 (1947).
In the present case, there was evidence before the trial court that Ms. Goza was the owner of 100% of the shares of stock of the corporation at the time the parties entered into the contract. There was also evidence that Ms. Goza was in charge of the day-to-day operations of the corporation and that she wrote checks on the corporation's account to D & H Hosiery, a business owned by her son, as well as to herself.
However, Ms. Goza presented testimony indicating that the payments to D & H Hosiery and to herself were arm's-length transactions made in the ordinary course of business. Although the testimony presented by Ms. Goza showed that she was involved in the day-to-day operations of the corporation, her involvement, coupled with her status as sole owner, does not, without additional facts, allow this Court to conclude that the corporation was the alter ego of Ms. Goza.
"[E]ven though a corporation is controlled by only one person, who is also the sole shareholder, in the absence of fraud or inequity, [s]he will be protected from individual liability by the corporate entity." Washburn v. Rabun, 487 So. 2d 1361, 1366 (Ala.1986). There was no evidence before the trial court showing that Ms. Goza was using Alan Mills, Inc., as a device to defraud someone or to circumvent the requirements of Alabama corporation law. Without such a showing, we are not willing to "pierce the corporate veil" and, thereby, hold Ms. Goza personally liable. Id.
It is important to note that when a trial court has heard ore tenus evidence, we will not disturb its ruling unless the ruling is clearly or palpably wrong. McInnis v. Lay, 533 So. 2d 581 (Ala.1988).
Reviewing the evidence under the ore tenus rule, we conclude that the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] The contract also granted minority ownership in the corporation to a third party who is not a party to this action. | September 14, 1990 |
659d1cdf-5a0a-4227-9543-e00604ceef7c | Boykin v. Magnolia Bay, Inc. | 570 So. 2d 639 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 639 (1990)
Louise and Ernest BOYKIN, individually, and as next friends and parents of Rhonya Maria Boykin, a minor
v.
MAGNOLIA BAY, INC., d/b/a Family Planning Medical Center, et al.
89-584.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied November 2, 1990.
Christopher E. Peters of Peters & Lockett, Mobile, for appellant.
*640 Warren C. Herlong, Jr., and Joseph D. Steadman of Coale, Helmsing, Lyons, Sims & Leach, Mobile, for appellee Owen B. Evans, M.D.
Brock B. Gordon of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellee Dawn O'Donnell.
Robert H. Hood, Birmingham, for appellees Magnolia Bay, Inc. and Elaine Miller.
HOUSTON, Justice.
Louise and Ernest Boykin ("the parents"), individually and as next friends and parents of their minor daughter, Rhonya Boykin, filed a three-count complaint against defendants Magnolia Bay, Inc., d/b/a Family Planning Medical Center ("Family Planning"); Owen B. Evans, M.D.; Elaine Miller; and Dawn O'Donnell, all individually and as agents for Family Planning, arising from an abortion performed on Rhonya by Dr. Evans at Family Planning. Count I asserted a claim based on the tort of outrage, on behalf of the parents individually. Count II, a claim also based on the tort of outrage, was asserted on behalf of Rhonya. Count III, also asserted on behalf of Rhonya, alleged that the abortion constituted a trespass and an assault and battery. The trial court entered summary judgment in favor of the defendants:
* "The in pari delicto defense is essentially the same as the estoppel defense found in Restatement (Second) of Torts, Sec. 894 (1982 Ed.), the elements of which are also established without dispute."
The material facts underlying the complaint are essentially undisputed:
Rhonya Boykin, born January 14, 1972, became pregnant in the fall of 1987 at the age of 15.[1] She discussed her pregnancy with her boyfriend, Kirby Gentry, the father of the unborn child, and they decided to abort the pregnancy. In order to obtain money for Rhonya's abortion, Kirby told his father that Rhonya had to have an abortion because a doctor had advised her that she could not carry a child to term, when, in fact, Rhonya had not been so told. Rhonya also told Wendy Chapman, her girlfriend, about her pregnancy and about her decision to abort the pregnancy. Rhonya decided she would not tell her parents about the pregnancy or the abortion.
Rhonya and Wendy telephoned several abortion clinics and ascertained that the legal age for obtaining an abortion without parental consent was 18 years. According to Rhonya and Wendy, all of the abortion clinics except Family Planning told Rhonya that she would have to submit proof that *641 she was 18 years of age or older, or, if she was under 18, that she must have a parent with her or a note from her parent. When they telephoned Family Planning, Ms. O'Donnell, the director of Family Planning, asked Rhonya her age. Rhonya told Ms. O'Donnell that she was 18 and asked what she needed to bring with her. Ms. O'Donnell told Rhonya to bring herself and the money. When Rhonya arrived at Family Planning with Wendy and Kirby, she filled out 2 forms indicating that she was 18 years old. According to Rhonya and Wendy, Rhonya looked 18, and at all times Rhonya represented to Family Planning that she indeed was 18. No one at Family Planning asked Rhonya for proof of her age or took any steps to verify her age. According to the procedures at Family Planning, its staff determines the ages of patients by asking their ages and their birthdates; and if a patient appears to be under 18 and/or if there is suspicion as to a patient's age, then Family Planning might ask for reliable documentation. If either the age or the birthdate indicates an "under 18 applicant," then Family Planning informs the individual that either parental consent or a judge's order is required before that individual can receive an abortion.
In order to determine whether Family Planning had obtained the legal consent for the abortion, Dr. Evans, prior to performing the abortion, reviewed the information sheet that Family Planning employees had obtained from Rhonya. Both forms that Rhonya signed listed her age as 18; therefore, Dr. Evans concluded that Family Planning had indeed obtained such consent.
The parties stipulated that Rhonya and her parents are not seeking any out-of-pocket expenses. Furthermore, there is no contention that the abortion procedure was performed incorrectly or that Rhonya suffered any injuries during the course of the abortion or that she suffered any complications therefrom. Rather, damages are sought for the alleged injury occasioned by the performance of an abortion on a girl under the age of 18 without parental consent. We are aware that this case involves an extremely sensitive area of the law; thus, we must emphasize that we have not rendered this decision lightly and without due consideration to the law and to the normal deference given by the judiciary to legislative enactments. That being said, we will address those issues directly presented for our reviewwhether Rhonya's intentional misrepresentations of her age bar her recovery and whether the parents' claim is derivative in nature.
The plaintiffs contend that the trial court erred in barring Rhonya's claims based on the defense of in pari delicto, because she was a minor when she made the misrepresentations as to her age. Although they acknowledge that "it is generally true that an infant is liable for his torts," see Drennen Motor Car Co. v. Smith, 230 Ala. 275, 277, 160 So. 761, 763 (1935), they contend that the fact that Rhonya misrepresented her age in this case should fall within the well-settled exception pursuant to which a minor may disaffirm a contract entered into during minority at any time prior to ratification even though the minor misrepresented his age when entering into the contract. We disagree.
Whereas we recognize that a minor's age may be a factor in determining whether that minor has the capacity to be guilty of a tort, minority in and of itself is not a defense to an action for tort. See Hooper Motor Co. v. Harris, 226 Ala. 278, 146 So. 618 (1933). Rather, as stated by Roberts and Cusimano, Alabama Tort Law Handbook § 35.3 at 711 (1990), in order to determine the liability of a minor for his own tort, we should look to the following elements: (1) the intelligence of the child; (2) the capacity of the child to understand the potential danger of the hazard; (3) the child's actual knowledge of the danger; (4) the child's ability to exercise discretion; (5) the education level of the child; (6) the maturity of the child; and (7) the age of the child.
Having reviewed the evidence presented, taking into consideration the above elements in order to determine Rhonya's responsibility for her intentional misrepresentation of her age in order to obtain an abortion, we are persuaded that the trial *642 court properly entered summary judgment in favor of the defendants, as to Rhonya's claims, based on the affirmative defense of in pari delicto. Therefore, we affirm the summary judgment as to Rhonya's claims based on the torts of outrage, trespass, and assault and battery.
As for the parents' claim based on the tort of outrage, the trial court found that that claim was derivative in nature and was therefore barred by Rhonya's misrepresentations. The parents, however, contend that their claim is not a derivative claim; that is, they contend that their claim is different from and independent of Rhonya's claims and arises from their rights as set forth in the parental consent statute. We agree.
Alabama's parental consent statute, upheld as constitutional in Ex parte Anonymous, 531 So. 2d 901 (Ala.1988), follows the basic requirements found in Bellotti v. Baird, 443 U.S. 622, 99 S. Ct. 3035, 61 L. Ed. 2d 797 (1979), describing the type of parental consent statute that would pass constitutional muster.
Matter of Anonymous, 531 So. 2d 895, 898 (Ala.Civ.App.1988), rev'd on other grounds, Ex parte Anonymous, supra. (Emphasis added.)
According to Ala. Code 1975, § 26-21-1(a), one of the purposes of the parental consent statute is "protecting the rights of parents to rear children who are members of their household." Furthermore, the legislature found that "parental consultation is usually desirable and in the best interests of the minor." See Ala. Code 1975, § 26-21-1(b).
Thus, we hold that a parent's right to be informed regarding a minor child's intended abortion creates a right of action on the part of the parents against any person who performs an abortion on the minor child without having obtained parental consent or the required court-ordered waiver of consent, despite the minor's intentional misrepresentation of her age. In the instant case, although the defendants obtained Rhonya's consent and although Rhonya intentionally misrepresented her age, it is undisputed that the defendants failed to obtain the consent of Rhonya's parents or, in the alternative, a court-ordered waiver of consent. The defendants owed Rhonya's parents a duty separate from that owed to Rhonyathe defendants owed Rhonya's parents the duty to obtain their consent in order to perform an abortion on their minor daughter, which duty could have been dispensed with by obtaining a court-ordered waiver of consent. The parents' claim in this case is not derivative in nature and is not barred by Rhonya's misrepresentations. The trial court's finding that "the claim of the parents is derivative in nature" is erroneous. However, a correct decision 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).
To determine whether the trial court erred in its judgment, we must determine whether the parents presented sufficient evidence on their only claimthe tort of outrageto preclude the trial court's entry of summary judgment. This case was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See Ala. Code 1975, § 12-21-12.
The tort of outrage has been explained as follows:
American Road Service Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980).
To support a cause of action based on the tort of outrage, the facts must show conduct 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; National Security Fire & Casualty Co. v. Brown, 447 So. 2d 133 (Ala. 1983); see, also, Tyson v. Safeco Insurance Co., 461 So. 2d 1308 (Ala.1984); Empiregas, Inc. v. Geary, 431 So. 2d 1258 (Ala. 1983); Cates v. Taylor, 428 So. 2d 637 (Ala. 1983); Edwards v. McAllister, 437 So. 2d 74 (Ala.1983); and Peddycoart v. City of Birmingham, 392 So. 2d 536 (Ala.1980).
It is undisputed that the parents never had any contact with anyone at Family Planning; they were not present when the abortion was performed, and they did not discover the fact of the abortion in question until several months after the abortion had been performed. Under Restatement (Second) of Torts, § 46, Comment L, (1979), the cases limit recovery for emotional distress by relatives of tort victims to those who were actually present when the tort was committed:
Based on the foregoing, the parents cannot recover for the tort of outrage. The parents did not seek to recover under the remedy provided by the legislature; accordingly, we affirm the summary judgment as to the parents' claim.
AFFIRMED.
MADDOX, JONES, SHORES, ADAMS and STEAGALL, JJ., concur.
KENNEDY, J., concurs in the result.
[1] The abortion was performed on December 12, 1987, one month prior to Rhonya's sixteenth birthday. | September 21, 1990 |
7e3edd86-b0af-4fdd-8e2a-9897a9c81314 | Lange v. Scofield | 567 So. 2d 1299 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1299 (1990)
Kathryn M. LANGE
v.
Patricia T. SCOFIELD.
89-519.
Supreme Court of Alabama.
September 7, 1990.
*1300 Douglas Corretti and Mary Douglas Hawkins of Corretti & Newsom, Birmingham, for appellant.
Chervis Isom and Susan S. Wagner of Berkowitz, Lefkovits, Isom & Kushner, Birmingham, for appellee.
ALMON, Justice.
This is an appeal from a judgment entered in favor of the plaintiff, Patricia Scofield, and against the defendant, Kathryn Lange, in an action for declaratory and injunctive relief against the enforcement of restrictive covenants encumbering a residential lot that Scofield owns in Mountain Brook.[1] The trial court declared the covenants unenforceable, thereby allowing Scofield to build a house on her property.
The property owned by Scofield and that owned by Lange were originally owned by the Wofford Bond and Mortgage Company and Carrie Wofford ("Wofford"). In 1928 Wofford subdivided a large tract of land into 25 smaller lots. The two largest of those lots were estate-sized lots that will be referred to as Estate A and Estate B. Wofford sold Estate B to Virginia Lange, Kathryn Lange's mother. That lot was approximately two acres in size. The deed conveying Estate B to Virginia Lange contained the following restrictive covenant:
Wofford retained Estate A, which was approximately 4¼ acres in size. That property was encumbered by the same covenant that applied to Estate B. Both covenants ran with the land. Prior to 1960, Estate A and Estate B each contained a single house.
In 1960 Wofford asked the Planning Commission of Mountain Brook ("the commission") for permission to resurvey and subdivide Estate A into two lots, Estate A-1 (3½ acres) and Estate A-2 (¾ acre). Estate A-1 fronted on the same street that the house on Estate B faced, whereas Estate A-2 fronted on another street, which also formed the rear boundary of Estate B. The Wofford residence stood on the proposed Estate A-1. The commission approved the subdivision on the condition that Wofford adopt the restrictive covenant as to both lots and agree that no building would be erected on Estate A-2 without the written consent of the owners of all of the property adjoining or across the street from Estate A-2. Wofford agreed to that condition and it was adopted as an additional covenant that ran with the land.
In 1969 Scofield acquired Estate A-1. Her deed to that property contained the *1301 previously described restrictive covenants. In 1978 she acquired Estate A-2, which was also encumbered by the covenants. In 1979, following the death of her mother, Lange acquired Estate B. However, Lange lives in Great Britain and the residence on Estate B has been unoccupied for approximately 10 years.
In 1988 Scofield sold Estate A-1 for $1,500,000 and retained Estate A-2. She wants to reinvest the proceeds from the sale of Estate A-1 into a new residence for her family on Estate A-2. In an attempt to comply with the covenants, Scofield obtained written consent to the construction from five of the six property owners whose property surrounds Estate A-2; Lange, however, has consistently refused to give her consent. Her refusal led Scofield to file this action to have the covenants removed.
After hearing testimony from a number of witnesses and reviewing documentary evidence, the trial judge found that enforcing the covenants would not benefit Lange, but would work a substantial hardship on Scofield. The judge also found that allowing Scofield to build her proposed residence would not depreciate the value of Lange's property or interfere with her enjoyment of it, and that the proposed residence would be consistent in size, style, and value with the rest of the houses in the neighborhood. After weighing the relative benefits to the parties against the burdens, the trial judge held that Lange had failed to present any reasonable or equitable ground for objecting to the construction proposed by Scofield and held, therefore, that the covenants were unenforceable. Lange appeals.
At the outset, we wish to point out that restrictive covenants are not favored in the law and will therefore be strictly construed by this Court. All doubts must be resolved against the restriction and in favor of free and unrestricted use of the property. Frander & Frander, Inc. v. Griffen, 457 So. 2d 375, 377 (Ala.1984). In addition, a presumption of correctness attends determinations made by trial courts sitting without a jury and hearing evidence presented ore tenus. This Court will not disturb the decisions of such courts unless their findings are plainly and palpably wrong or manifestly unjust. Silverman v. Charmac, Inc., 414 So. 2d 892 (Ala.1982); Laney v. Early, 292 Ala. 227, 292 So. 2d 103 (1974).
Lange contends that the trial court used the wrong test when it invalidated the covenants. She argues that a covenant can be invalidated only when it is shown that the character of the neighborhood surrounding the encumbered property has changed so radically that the covenant's original purpose can no longer be accomplished. That test is known as the "change of neighborhood" or "change of conditions" test. 5 R. Powell, The Law of Real Property § 679(2) (1987 rev.). She directs this Court's attention to a number of cases that she argues support her contention that the "change of neighborhood" test is the only one applied in this jurisdiction. Laney v. Early, supra; Centers, Inc. v. Gilliland, 285 Ala. 593, 234 So. 2d 883 (1970); Allen v. Axford, 285 Ala. 251, 231 So. 2d 122 (1969).
We agree with the trial court that the cases relied on by Lange, and the test contained therein, have no applicability to this case. In each of those cases the party trying to have the covenant removed wanted to use the property for a purpose that was drastically different from that allowed by the covenant. Laney, 292 Ala. at 229, 292 So.2d at 104-05; Gilliland, 285 Ala. at 594-95, 234 So.2d at 884-85; Allen, 285 Ala. at 254-55, 231 So. 2d at 124-25. The use proposed by Scofield for Estate A-2 is entirely consistent with the use of Estate B and Estate A-1, the only other pieces of property subject to the covenants, and the house she plans to build is consistent in size, design, and overall quality with the houses on those parcels. In fact, the evidence presented showed that the house planned by Scofield will be superior in appearance to the house on Lange's property, which has been allowed to fall into disrepair. Also, the covenants in the instant case applied only to Estate A and Estate B and were not part of a neighborhood development scheme, whereas the covenants in the cases relied on by Lange applied to *1302 entire neighborhoods and appear to have been intended to control the development of those neighborhoods. Id. Because the covenants in this case were restricted to Estate B and property that was once part of Estate A, the trial court's finding that the "change of neighborhood" test did not apply was not error.
The test relied on by the trial court was the "relative hardship" test. Under that test a covenant will not be enforced if to do so would harm one landowner without substantially benefiting another landowner. Powell, supra, § 679(3). This Court has at least implicitly approved the use of that test. See Laney, 292 Ala. at 233, 292 So. 2d at 109; Allen, 285 Ala. at 259, 231 So. 2d at 129. The factors to be considered in applying this test are well stated in 20 Am.Jur.2d Covenants, Conditions, & Restrictions § 313, at 876-77 (1965):
The trial court rejected the only argument put forth by Lange for enforcing the covenant. She argued that Scofield's proposed house would increase the density of the neighborhood, thereby reducing the value of her property. However, the evidence supported the trial court's finding that any increase in density occasioned by the construction of Scofield's house would be minimal. In addition, there was no conclusive evidence presented that showed that Scofield's house would adversely affect the neighborhood's property values. Instead, the majority of the testimony indicated that Scofield's house would increase the overall value of property in the neighborhood, including Lange's.
There was also testimony that indicated that Scofield's house would not be visible from Lange's house, and would therefore not interfere with Lange's enjoyment of her property. That testimony, when combined with the evidence that Lange's house has been essentially abandoned for 10 years and has been allowed to fall into disrepair, supports the trial court's determination that the erection of Scofield's house will not have any detrimental effect on Lange. Finally, there was ample evidence that Estate A-2 would be almost without value if the covenants are enforced.
After reviewing the record, this Court finds that there was ample evidence supporting the trial court's finding that Lange did not present a reasonable or equitable ground for objecting to the construction proposed by Scofield, and its determination that any negligible benefit received by Lange from enforcing the covenants would be far outweighed by the hardship that such enforcement would impose on Scofield. Because that court's findings were not plainly and palpably wrong or manifestly unjust, its judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] AmSouth Mortgage Company ("AmSouth") was also named as a defendant. AmSouth did not participate in the trial of this case and has not joined Lange's appeal. | September 7, 1990 |
9da2c9f1-d6d9-4fec-b9fd-a582529b65ae | Callon Institutional Royalty Investors I v. DAUPHIN ISLAND PROP. OWNERS ASS'N | 569 So. 2d 343 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 343 (1990)
CALLON INSTITUTIONAL ROYALTY INVESTORS I, a Mississippi Limited Partnership
v.
DAUPHIN ISLAND PROPERTY OWNERS ASSOCIATION, INC.
89-523.
Supreme Court of Alabama.
September 21, 1990.
Conrad P. Armbrecht and Coleman F. Meador of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant.
Barry Hess of Hess, Atchison & Horne, Mobile, for appellee.
KENNEDY, Justice.
Dauphin Island Property Owners Association, Inc. (the "Association"), filed a declaratory judgment action against Callon Institutional Royalty Investors I ("Callon"), a Mississippi limited partnership, to determine whether the Association or Callon owned disputed mineral royalty interests. Callon filed a counterclaim, seeking damages in the form of attorney fees and other litigation costs for the Association's alleged breach of its covenant of quiet enjoyment to Callon. The trial court entered summary judgment for Callon on the Association's action and determined that Callon had title to the mineral royalties; we affirmed that summary judgment in Dauphin Island Property Owners Association v. Callon Institutional Royalty Investors I, 519 So. 2d 948 (Ala.1988). After that opinion, the trial court entered summary judgment for the Association on Callon's counterclaim, and Callon appeals.
In February 1981, the Association executed a royalty deed to Dan Dumont, which states that the Association "has granted, bargained, sold and conveyed and does by these presents grant, bargain, sell and convey unto grantee, his heirs and assigns, a royalty interest" in minerals on and under certain property in Mobile County. In March 1981, Dumont conveyed and assigned all his royalty interest to Callon. In July 1985, the Association filed its declaratory *344 judgment action, asserting that it held paramount title to the royalty interest.
In its deed to Dan Dumont, the Association conveyed its interest and title to the royalty to Dan Dumont, his heirs, and assigns, using the terms "grant," "bargain," and "sell." Under Ala.Code 1975, § 35-4-271, the terms "grant," "bargain," and "sell" in a deed give not only a warranty of good title but also a covenant for quiet enjoyment against acts of the grantor/covenantor, even if those warranties and covenants are not expressly specified in the deed. Ala.Code 1975, § 35-4-271; St. Paul Title Insurance Corp. v. Owen, 452 So. 2d 482, 485 (Ala.1984). The covenants of good title and of quiet enjoyment run with the land when it is conveyed or assigned, "so that when they are broken, the heir or assignee injured by the breach can maintain an action against the covenantor." Owen, 452 So. 2d at 485. "Because the covenants of quiet enjoyment and of warranty are virtually identical in operation, whatever constitutes a breach of one covenant is a breach of the other." Id. However, "[n]either covenant is breached until there is an eviction under paramount title." Id. The eviction can be actual or constructive. Id.
The Association argues that there was not an actual or constructive eviction and, alternatively, that even if we were to hold that there was an eviction, it was not an eviction under paramount title, and, consequently, Callon cannot, as a matter of law, maintain its action. The Association further argues that as a matter of law Callon cannot recover the damages it seeks.
Normally, in an action for breach of a covenant of quiet enjoyment, an attack on the covenantee's title is made by a third party to the covenantee/covenantor relationship. In this case, however, the attack to the title and the claim of superior title were not made by a third party but by the Association, which was both the grantor and the covenantor. There is no Alabama case law addressing this fact situation, although some early cases from other jurisdictions address it.
The Alabama case that most closely resembles this case factually is Chicago, Mobile Development Co. v. G.C. Coggin Co., 259 Ala. 152, 66 So. 2d 151 (1953). The Association argues that Coggin requires that the summary judgment be upheld, because, according to the Association, under that case, there was no eviction and Callon cannot, as a matter of law, recover the damages it seeks. In G.C. Coggin, the Chicago, Mobile Development Company ("Development Company") owned a parcel of land in Mobile County. In July 1944, the Development Company executed a mineral lease to Sun Oil Company for a term ending in 1949 and then extended the term through July 1950. In December 1948, the Development Company sold a portion of its land to Rufus and H.W. Snow, by warranty deed containing covenants of warranty and for quiet enjoyment. In October 1949, the Snows executed a warranty deed to G.C. Coggin Company ("Coggin") and conveyed to Coggin all the land it had purchased from the Development Company. Coggin took possession of the land and began cutting timber and pulpwood. The Development Company never entered the land that it had leased to Sun Oil Company.
Coggin sued the Snows and the Development Company, claiming, inter alia, that the Development Company had breached covenants of warranty and for quiet enjoyment. The Snows cross-claimed against the Development Company for breach of the covenant of warranty of title and the covenant for quiet enjoyment.
The Court held that there had been no actual or constructive eviction, implying that the mere existence of the lease would not constitute eviction as a matter of law, when, as in that case, there had been no action taken to use the lease to enter the land. 259 Ala. at 160, 162, 66 So. 2d at 156, 157. The Court further stated that the right to recover attorney fees that comes from the action for breach of the covenants does not exist in every action where the title is in some way attacked; rather, the Court held, the duty to pay attorney fees arises "only in a suit with the claimant of an outstanding superior right, usually seeking to obtain possession in order to profit *345 by that right." 259 Ala. at 162, 66 So. 2d at 158.
G.C. Coggin does not support the Association's argument. In regard to the issue of eviction, the case addresses a lease that was never used, not a lawsuit by the covenantor to take title from the covenantee, as the Association tried to do. Furthermore, G.C. Coggin addresses eviction only in a summary fashion and does not provide meaningful discussion of the issue. Concerning the award of attorney fees, G.C. Coggin says that they are recoverable in a breach of covenant action exactly like the one the Association brought, an action with a "claimant of an outstanding superior right." Accordingly, G.C. Coggin actually supports Callon on the issue of recovery of attorney fees.
Several early cases from other jurisdictions address the relationship between the grantor/covenantor and the covenantee. In Cassada v. Stabel, 98 A.D. 600, 90 N.Y.S. 533, 535 (Sup.Ct.1904), the court wrote:
(Emphasis added.)
Other courts and authorities have stated that every grant of any right, interest, or benefit carries with it an implied undertaking on the part of the grantor that the grant is intended to be beneficial, and that, so far as the grantor is concerned, he will do no act to interrupt the free and peaceable enjoyment of the thing granted. Akerly v. Vilas, 23 Wis. 207, 219-20 (1846); Atler v. Erskine, 50 Tex.Civ.App. 576, 111 S.W. 186, 187 (1908); 21 C.J.S. Covenants § 108, p. 965 (1940). The covenant has been regarded as an agreement that the grantor will not trouble, molest, evict, or disturb the grantee. 21 C.J.S. Covenants § 45, p. 916 (1940).
While in a third-party situation, the covenant of quiet enjoyment "applies only to the acts of those [third parties] claiming by title, [it is] subject, however to the exception that it shall extend to the act of the covenantor himself, done under color or mere claim of title." Akerly, 23 Wis. at 216. Thus, while the covenant is breached in a third party situation only if the third party attacking title in fact has paramount title, "the covenant ... bars the grantor from claiming the estate granted." 21 C.J.S. Covenants § 45, p. 916.
The court in Cassada wrote further that "the covenant for quiet enjoyment extends to all acts of the covenantor, whether tortious or not, if committed under color of title." (Emphasis added.) 90 N.Y.S. at 536 (quoting Cyc. of Law & Procedure, 1119); in Atler, 50 Tex.Civ.App. 576, 111 S.W. at 186, the court wrote that "the principle which requires the eviction or disturbance to be by one claiming under a superior title to constitute a breach of the covenant for quiet enjoyment is subject to certain well-settled exceptions, among which is that the covenant extends to all acts of the covenantor himself whether tortious or otherwise."
The holdings of those courts are sound. We hold that when the Association filed its action against Callon claiming paramount title, the action itself constituted constructive eviction for the purposes of Callon's claim alleging breach of the covenant of quiet enjoyment. The early cases support this holding. "The covenantor's suit, if wrongful, could not result in [a *346 physical] eviction of the covenantee; and to require proof of [physical] eviction would allow the covenantor to break the covenant, by suit, with impunity." Akerly, 23 Wis. at 218. "[A] groundless suit ... by the covenantor himself is a breach of the covenant [of quiet enjoyment]. The obligation he has assumed forbids that he should be at liberty to disquiet and disturb his grantee by groundless actions, with no other liability than to pay costs." Id. "Of a covenant for enjoyment without interruption or molestation, it shall be a breach if the covenantor prosecute him [the covenantee] in a court of equity." Akerly, 23 Wis. at 213.
The Association contends that even if there was an eviction, it was not under paramount title, and therefore that Callon cannot maintain its action. The law does require, as we stated in Owen, that when an attack on the title is made by a third party with an alleged superior claim of title, the eviction must be by actual paramount title, that is, the third party must succeed on its claim of superior title. We have not addressed, however, the question whether the attack on the title must actually be successful when the attack is made by the covenantor himself.
The authorities discussed earlier indicate that the covenantor's action need not be successful in its claim for paramount title to support an action by the covenantee for breach of the covenant of quiet enjoyment. Akerly, 23 Wis. at 216, 218; Cassada, 90 N.Y.S. 533, 536. With regard to the Association's argument that the attack must be successful, there is a reasonable basis for distinguishing between a third party's attack on the title of the covenantee and an attack instigated by the covenantor himself. A grantor/covenantor that covenants quiet enjoyment cannot control whether a third party will attack the grantee's (covenantee's) title under claim of paramount title. A covenantor cannot prevent a third party from filing a frivolous, groundless lawsuit; it can only control or affect whether a third party actually has paramount title because of some act by the covenantor. Accordingly, when a third party attacks title, the covenantor is liable for breach of the covenant of quiet enjoyment only if the third party actually has paramount title. However, the covenantor can control absolutely whether it attacks the title it has conveyed to the covenantee.
In addition to those distinctions, sound policy dictates that the Association as covenantor should not be able to file an action claiming superior title against its covenantee Callon without regard to its covenant of quiet enjoyment: The law should not penalize Callon as covenantee for choosing to defend its rightful claim to the royalty interest by taking away its cause of action for breach of that covenant when it does so. Callon should not be required to choose between relinquishing its claim of title and releasing its cause of action for breach of the covenant of quiet enjoyment.
The judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES and SHORES, JJ., concur.
HOUSTON, J., concurs specially.
HOUSTON, Justice (concurring specially).
I concur with the well-reasoned opinion of Justice Kennedy. I write separately to address our standard of review.
Dauphin Island Property Owners Association, Inc., argues that our standard of review in this case is whether there has been an abuse of discretion. If this were the standard of review, I would dissent. However, in this action we are asked to determine if the trial court erred in entering a summary judgment for the Association on Callon's counterclaim for breach of covenant of quiet enjoyment. A trial court's entry of a summary judgment is not a discretionary act; no presumption of correctness attaches, and our standard of review in such a case is not whether there has been an "abuse of discretion." Hightower & Co. v. United States Fidelity & Guaranty Co., 527 So. 2d 698, 701 (Ala. 1988). In accordance with our standard of *347 review of determining whether there is evidence to support each element of Callon's counterclaimto raise a genuine question of material fact as to whether that element exists, Rule 56(c) A.R.Civ.P.this Court must review the record in a light most favorable to the non-movant, Callon, and resolve all reasonable doubts against the Association. Sanders v. Kirkland & Co., 510 So. 2d 138, 142 (Ala.1987). The Association had covenanted and warranted quiet enjoyment "against acts done ... by the grantor" (the Association). St. Paul Title Insurance Corp. v. Owen, 452 So. 2d 482, 485-86 (Ala.1984); Ala.Code 1975, § 35-4-271. The contention by the Association that it was merely trying to determine whether Callon had good title because of the Rule against Perpetuities does not support the Association's position. One whose title is defective because of the Rule against Perpetuities is not a pariah; one whose title is defective because of the Rule against Perpetuities and whose enjoyment of title is disputed is not deprived of a right to file a breach of warranty of quiet enjoyment action against his grantor, who covenanted and warranted quiet enjoyment. | September 21, 1990 |
748c93d2-a60c-4d33-8040-55e9d4bcd371 | Ex Parte Geneva City Bd. of Educ. | 575 So. 2d 1114 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1114 (1990)
Ex parte GENEVA CITY BOARD OF EDUCATION.
(Re Donna POWELL v. GENEVA CITY BOARD OF EDUCATION).
89-600.
Supreme Court of Alabama.
September 21, 1990.
Rehearing Denied November 2, 1990.
*1115 Charles W. Fleming, Jr., Geneva, for petitioner.
Joseph P. Hughes, Geneva, for respondent.
HOUSTON, Justice.
The Geneva City Board of Education ("the Board") filed a complaint for a declaratory judgment, asking the Circuit Court of Geneva County to determine whether the Board had properly terminated the employment of a nontenured teacher, Donna Powell, in accordance with § 16-24-12. The trial court ruled that the Board was required to give notice under the statute; that the Board had, in fact, complied with § 16-24-12; and that Ms. Powell's failure to receive the notice of non-renewal of her contract was due to an intentional avoidance of delivery of the notice. Thereafter, the trial court denied Ms. Powell's motion to alter, amend, or vacate the judgment, or to grant a new trial and denied her "motion to open judgment." Ms. Powell appealed. The Court of Civil Appeals reversed the judgment and remanded, holding, in pertinent part, as follows:
Powell v. Geneva City Board of Education, 575 So. 2d 1112, 1113 (Ala.Civ.App. 1989). Subsequently, the Board filed a petition for the writ of certiorari, which we granted.
In its petition, the Board contended that its actions complied with the requirement of § 16-24-12[1] that "notice in writing be given to the teacher on or before the last day of the term" and that the Court of Civil Appeals' holding conflicted with Stollenwerck v. Talladega County Board of Education, 420 So. 2d 21 (Ala.1982).
We granted the Board's petition to determine whether the Court of Civil Appeals, in reversing, erred in holding that the trial court's judgment, which was based on findings of fact made upon ore tenus evidence, was plainly and palpably erroneous. In order to resolve this issue, we must determine whether the Court of Civil Appeals correctly applied the law to those facts. Life Ins. Co. of Georgia v. Miller, 292 Ala. 525, 296 So. 2d 900, on remand, 53 Ala.App. 741, 296 So. 2d 907 (1974). In essence, we must determine whether the Court of Civil Appeals correctly applied the ore tenus standard of review.
Under the ore tenus rule, the trial court's findings of fact are presumed correct and its judgment based on these findings *1116 will be reversed only if it is found to be plainly and palpably wrong after a consideration of all of the evidence and all reasonable inferences that can logically be drawn from the evidence. See King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala. 1987); Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986). The trial court's judgment will be affirmed if, under any reasonable aspect of the evidence, there is credible evidence to support the judgment. McCrary v. Butler, 540 So. 2d 736 (Ala.1989); Jones v. Jones, 470 So. 2d 1207 (Ala.1985). See, also, City of Birmingham v. Sansing Sales of Birmingham, Inc., 547 So. 2d 464 (Ala.1989).
The Court of Civil Appeals accurately set out the facts of this case as follows:
575 So. 2d at 1113. (Emphasis added.)
As we noted in Stollenwerck v. Talladega County Bd. of Ed., supra, where there *1117 is evidence that the teacher in question intentionally avoided receipt of the notice of nonrenewal, a question exists for the trier of fact. It must then be determined by the factfinder whether that avoidance thwarted the server's attempt at delivery under the statute.
There was conflicting evidence as to whether Ms. Powell intentionally avoided receipt of notice. The trial court, hearing ore tenus evidence, determined that Ms. Powell's actions "constituted an intentional avoidance of delivery of the notice." We have thoroughly reviewed the record, the briefs, and the Court of Civil Appeals' opinion; and after considering all of the evidence and all of the inferences that could logically be drawn from that evidence, we hold that the trial court could have reasonably inferred that Ms. Powell intentionally avoided receipt of notice. Thus, we hold that the trial court's judgment was not plainly and palpably erroneous.
The Court of Civil Appeals erred in reversing the judgment of the trial court. The judgment of the Court of Civil Appeals is reversed, and the case is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
[1] Section 16-24-12 reads as follows:
"Any teacher in the public schools, whether in continuing service status or not, shall be deemed offered reemployment for the succeeding school year at the same salary unless the employing board of education shall cause notice in writing to be given said teacher on or before the last day of the term of the school in which the teacher is employed; and such teacher shall be presumed to have accepted such employment unless he or she shall notify the employing board of education in writing to the contrary on or before the fifteenth day of June. The employing board of education shall not cancel the contract of any teacher in continuing service status, nor cause notice of nonemployment to be given to any teacher whether in continuing service status or not except by a vote of a majority of its members evidenced by the minute entries of said board made prior to or at the time of any such action." | September 21, 1990 |
d2d74f66-0e52-4428-9bdc-9164a8069719 | Gotlieb v. Collat | 567 So. 2d 1302 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1302 (1990)
Raymond D. GOTLIEB, et al.
v.
Charles A. COLLAT.
89-575.
Supreme Court of Alabama.
September 7, 1990.
*1303 G. Steven Henry of Clark & Scott, Birmingham, for appellants.
Richard D. Greer of Najjar, Denaburg, Meyerson, Zarzaur, Max, Wright & Schwartz, Birmingham, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of the plaintiff, Charles A. Collat, and against the defendants, Raymond D. Gotlieb, Robert L. Bohorfoush, and G-B Partnership ("appellants"), in an action on a promissory note. The appellants do not contest that portion of the judgment holding them liable under the terms of the note. Instead, they argue only that the trial court should not have awarded attorney fees and costs to Collat. Collat says that the issues argued by the appellants are not properly before this Court because they were not presented to the trial court or preserved in the record.
In 1985 the appellants executed to Collat a promissory note for $246,893.68. That note was secured by assets owned by Gotlieb and Bohorfoush, and it contained an acceleration clause that could be invoked in the event of default. The appellants defaulted on the note in September 1988. Because there was a dispute concerning the amount of money owed by the appellants, a meeting was held between Collat's accountant and the appellants' accountant. Although the parties were not in total agreement after that meeting, they were able to narrow their dispute to a difference of $800.28. However, the appellants remained in default after that meeting and Collat, pursuant to the note's acceleration clause, filed a complaint demanding the entire amount due under the terms of the note.
The trial court granted Collat's motion for summary judgment and awarded him $211,190.40. The appellants do not dispute the trial court's implicit findings that they were in default on the note and that Collat was entitled to be paid. Instead, they contend that Collat's acceleration of the promissory note was not done in good faith, was inequitable, and violated a number of statutes contained in our commercial code. They also assert the affirmative defenses of estoppel and waiver. Based on those arguments and defenses, the appellants ask this Court to reverse the portion of the judgment that awarded Collat attorney fees and costs.[1]
*1304 When determining whether a summary judgment was properly entered, this Court is restricted to the evidence and arguments that were considered by the trial court. Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541-42 (Ala.1985). A review of the record reveals that each of the arguments and defenses presented by the appellants has been raised for the first time on appeal. Therefore, they cannot be considered. The appellants did not respond to Collat's motion for attorney fees. This Court cannot put a trial court in error for failing to consider evidence or accept arguments that, according to the record, were not presented to it. Defore v. Bourjois, Inc., 268 Ala. 228, 230, 105 So. 2d 846 (1958).
The appellants contend that the defenses of estoppel and waiver were raised by the trial judge during a hearing on Collat's motion for summary judgment, and, therefore, that their pleadings should be deemed to have been amended to conform to the "evidence," pursuant to Rule 15(b), Ala.R.Civ.P. Estoppel and waiver are both affirmative defenses and, as such, must be specially pleaded. Rule 8(c), Ala. R.Civ.P. The language of Rule 8(c) is mandatory. Bechtel v. Crown Central Petroleum Corp., 451 So. 2d 793, 796 (Ala.1984). Without addressing the merits of the appellants' contention that statements by a trial judge constitute evidence and thereby fall within the ambit of Rule 15(b), this Court notes that there was no transcript made of the hearing and that there is no evidence of the alleged statements other than the appellants' unsupported assertions on appeal.
As stated earlier, this Court is limited to a review of the record alone, and the record cannot be changed, altered, or varied on appeal by statements in briefs of counsel. Bechtel, supra, at 795. The appellants bear the burden of ensuring that the record on appeal contains sufficient evidence to warrant reversal. Matter of Coleman, 469 So. 2d 638 (Ala.Civ.App. 1985); Rule 10, Ala.R.App.P.
The appellants have not shown any error by the trial court. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] The trial court's order did not specify the amount awarded in attorney fees or costs. However, because the appellants do not challenge the amount of the award, only the act of awarding those fees and costs, that issue will not be addressed. | September 7, 1990 |
77841de2-5498-4594-9188-c05510ca7a5a | Pitman v. FLANAGAN LUMBER CO., INC. | 567 So. 2d 1335 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1335 (1990)
Robert Edward PITMAN
v.
FLANAGAN LUMBER COMPANY, INC.
89-784.
Supreme Court of Alabama.
September 14, 1990.
Marc Sandlin, Huntsville, for appellant.
Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellee.
HOUSTON, Justice.
The defendant, Robert Edward Pitman, appeals from a judgment in favor of Flanagan Lumber Company, Inc. ("Flanagan"), in this action to recover a debt incurred by Ramsey Homebuilders, Ltd. ("Ramsey Homebuilders"). We affirm.
Pitman was one of two limited partners in Ramsey Homebuilders, a limited partnership that engaged in the business of residential construction. Michael C. Ramsey was the sole general partner in that partnership. Because Ramsey had a poor credit history, he was unable to borrow the money or obtain the credit that was needed to sustain the partnership's business. Pitman, who had a personal account with Flanagan, contacted Wilburn Moore, Flanagan's credit manager, and secured an account in the partnership's name. After the partnership failed to pay the account, Flanagan sued Pitman, alleging that, although Pitman was a limited partner in Ramsey Homebuilders, he was responsible for the partnership's debt under Ala.Code 1975, § 10-9A-42, which reads, in pertinent part, as follows:
After hearing ore tenus evidence, the trial court found that Pitman had participated in the control of the business by interceding on the partnership's behalf to secure credit; that Flanagan had reasonably relied upon that participation in extending credit; and, therefore, that Pitman was liable to Flanagan for the debt subsequently incurred by the partnership.
Pitman argues that the evidence does not support the trial court's finding that he participated in the control of the partnership's business. He argues instead that, if anything, he was operating within the waters of the "safe harbor" provided by § 10-9A-42(b)(3) when he contacted Flanagan. He also contends that he had no written agreement with Flanagan to pay the partnership's account and, therefore, that under Ala.Code 1975, § 8-9-2, he cannot be held responsible for the debt.
Section 8-9-2, in pertinent part, provides:
Flanagan contends, however, that the evidence supports the trial court's finding that Pitman participated in the control of the partnership's business. Furthermore, Flanagan argues, § 8-9-2 is not applicable because the judgment was not predicated upon an agreement between it and Pitman to pay the partnership's account, but, instead, upon Pitman's loss of limited partner status under § 10-9A-42. We agree.
Where a trial court has heard ore tenus evidence, as in this case, its findings, if supported by the evidence, are presumed correct, and its judgment based upon those findings will be reversed only if, after consideration of the evidence and all reasonable *1337 inferences to be drawn therefrom, the judgment is found to be plainly and palpably wrong. Robinson v. Hamilton, 496 So. 2d 8 (Ala.1986).
"Control" is defined in Black's Law Dictionary (5th ed. 1979) as the "[p]ower or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee." In the present case, the evidence showed that Pitman interceded on behalf of the partnership in order to secure an account with Flanagan. The trial court could have found from this evidence that Pitman participated in the "control" of the partnership's business by securing one of the things that the partnership needed to survivea source of building materials that would be provided on credit.[1] Furthermore, the evidence supports the trial court's finding that Flanagan reasonably relied on Pitman's participation in the partnership's business by extending credit to the partnership. The trial court's judgment was not plainly and palpably wrong.
With regard to Pitman's second contention (i.e., that § 8-9-2 protects him from liability because he had no written agreement with Flanagan to pay the partnership's debt), the trial court did not adjudge Pitman liable on the ground that he had an agreement with Flanagan to pay the account, but on the ground that he had lost his limited partner status under § 10-9A-42, and, therefore became liable as a general partner for the partnership's debt under Ala.Code 1975, §§ 10-9A-62 and 10-8-52. For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Although it does not appear to us that any argument concerning this point was made to the trial court, we note that the evidence does not support a finding that Pitman was "[a]cting as surety or guarantor for any liabilities for the limited partnership," § 10-9A-42(b)(3), when he contacted Flanagan. To the contrary, the only reasonable inference that could have been drawn from the evidence was that Pitman never intended to assume responsibility for the partnership's debt. | September 14, 1990 |
7015e4ad-7480-4b31-9069-5cff3b74f26a | Fraser v. Reynolds | 588 So. 2d 442 | N/A | Alabama | Alabama Supreme Court | 588 So. 2d 442 (1990)
Russell M. FRASER
v.
R. Scott REYNOLDS, et al.
Bobby R. LEWIS
v.
R. Scott REYNOLDS, et al.
88-1466, 88-1522.
Supreme Court of Alabama.
September 14, 1990.
*443 F.A. Flowers III and Paul P. Bolus of Burr & Forman, Birmingham, for appellant Russell M. Fraser.
H. Harold Stephens of Lanier, Ford, Shaver & Payne, Huntsville, for appellant Bobby R. Lewis.
Gary L. Rigney of Rigney, Garvin & Webster, Huntsville, for appellees R. Scott Reynolds, et al.
HOUSTON, Justice.
The defendants, Bobby R. Lewis and Russell M. Fraser, appeal separately from a judgment entered on a jury verdict in favor of the plaintiffs, R. Scott Reynolds, Gregory S. Windham, Kenneth Tichansky, and Teresa Scholz, in this action to recover damages for fraud. We affirm in part, but remand the case for a determination as to the question of excessiveness of the damages, in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989).
This is the second time these parties have been before this Court. In Reynolds v. Mitchell, 529 So. 2d 227 (Ala.1988), the plaintiffs appealed from a judgment entered for them on the jury's verdict, arguing that the damages award was too small (i.e., that the damages award was not supported by the evidence), and the defendants cross-appealed, contending that the trial court had erred in submitting the fraud question to the jury. We rejected the defendant's contention that there was insufficient evidence of fraud to submit the question to the jury; however, we reversed and remanded the case for a new trial because the damages awarded by the jury were not supported by the evidence. The present appeal is from the judgment entered following the second trial. Our review of the record indicates that the evidence presented in both trials was substantially the same. See Reynolds v. Mitchell, supra, at 229-30, for a detailed statement of the evidence presented at the first trial.
The plaintiffs were the limited partners in Margaret Clara Apartment Complex Group, Ltd. ("the partnership"). The defendants were two of the three general partners in that partnership.[1] The plaintiffs alleged that the defendants had fraudulently induced them to invest in the partnership. The plaintiffs sought both compensatory and punitive damages. At trial, the defendants' motions for a directed verdict were denied; the jury returned the following verdict by filling in the blanks on forms that were approved both by the parties and the trial court:
"JURY VERDICT
The defendants first contend that there was no basis for a finding of fraud on their part and, therefore, that the trial court erred in denying their motions for a directed verdict and for a judgment notwithstanding the verdict. We have previously rejected this contention. See Reynolds v. Mitchell, supra, at 230-33, for a thorough discussion of the evidence and the applicable legal principles. After carefully reviewing the record, we hold, once again, that the plaintiffs presented sufficient evidence to establish a prima facie case of fraud in the inducement and, therefore, that the trial court did not err in submitting the fraud issue to the jury.
The defendants also contend that the trial court erred in denying their request for a new trial. They argue that the jury unlawfully apportioned the damages; that the trial court improperly instructed the jury on the law of fraud; that the trial court unconstitutionally instructed the jury that they could be found vicariously liable for punitive damages as a result of the false representations that may have been made by Mitchell in regard to the partnership business; and that the damages award was excessive.
As the verdict forms set out previously reveal, the jury did apportion the damages in this case. The defendants argue *445 that the verdict was the result of an erroneous instruction from the court that the jury could apportion the damages. Because apportionment of damages among joint tort-feasors is not permitted in Alabama, see, e.g., Tatum v. Schering Corp., 523 So. 2d 1042 (Ala.1988), and Vanguard Industrial Corp. v. Alabama Power Co., 455 So. 2d 837 (Ala.1984), the verdict would be illegal and, thus, would have to be set aside but for the fact that the record shows the issue to have been waived by the defendants at trial. The defendants neither objected to the trial court's oral charge nor submitted any requested written jury instructions regarding the apportionment of damages. Furthermore, as previously noted, the defendants consented to the verdict forms that were provided to the jury, and those forms required an apportioned verdict. Accordingly, the apportionment of damages by the jury did not constitute reversible error under the law of this case. See Alfa Mutual Ins. Co. v. Northington, 561 So. 2d 1041, 1047 (Ala.1990) ("[t]his Court cannot undertake to review the propriety of a trial court's oral charge unless that charge has been timely objected to and the objection has been overruled by the trial court, or a requested written jury instruction has been refused by the trial court"); see, also, E & S Facilities, Inc. v. Precision Chipper Corp., 565 So. 2d 54 (Ala.1990), where this Court held that consent to the form of a verdict at trial bars attack on appeal.
With regard to their argument that the trial court erred in instructing the jury on the law of fraud, the defendants maintain 1) that the trial court failed to instruct the jury as to the general rule that a mere statement of opinion cannot constitute actionable fraud; and 2) that the trial court, when it instructed on the law of reckless fraud, should have instructed the jury that it had to find a false representation concerning a "material existing fact" instead of a false representation concerning a "material fact."
The trial court instructed the jury, in pertinent part, as follows:
This instruction is a correct statement of the law, Reynolds v. Mitchell, supra, and it told the jury in a clear and concise manner everything that it needed to know in this case as to when a statement of opinion can *446 constitute actionable fraud.[2] Therefore, the trial court's refusal to instruct as to the general rule was not error.
The trial court instructed the jury on the law of reckless fraud, in pertinent part, as follows:
This instruction is also a correct statement of the law. "Fact" is defined in Black's Law Dictionary (5th ed. 1979) as follows:
A "material fact" is a fact that would reasonably induce someone to act. Alfa Mutual Insurance Co. v. Northington, supra. As these definitions indicate, in order to establish reckless fraud a plaintiff must prove that the defendant made a false representation as to "[a] thing done" or an event that "has taken place" that would reasonably induce someone to act. Use of the word "existing" before "fact" is redundant. We note that this Court has on many occasions characterized the necessary element to be proved as a false representation concerning a "material existing fact." We note further, however, that there is no magic in the word "existing" as it is used in this context and that a jury instruction that omits it does not constitute error on the part of the trial court. See, also, Alabama Pattern Jury Instructions, Civil § 18.02 (1974) ("material fact").[3]
As to whether the trial court erred in its instructions concerning one general partner's liability for punitive damages as a result of false representations made by another general partner, we note that the defendants neither objected to the trial court's oral charge in this respect nor submitted any requested written instructions to the trial court dealing with the *447 matter.[4] There is no ruling by the trial court for us to review on the issue of the constitutionality vel non of the punitive damages award, and the trial court's oral charge became the law of the case. Alfa Mutual Insurance Co. v. Northington, supra.
The defendants filed post-judgment motions challenging the verdict as being excessive. The trial court denied the motions, without comment. With regard to the compensatory damages award, the defendants argue that the jury failed to take into consideration certain tax savings that, they say, the evidence showed were enjoyed by the plaintiffs as a result of their participation in the partnership. The trial court instructed the jury to take any proven tax savings into account. It does not appear, however, that the jury took any tax savings into consideration when it reached its verdict. Lewis also argues that the evidence does not support an award against him of twice the amount of compensatory damages awarded against Fraser. With regard to the punitive damages award, the defendants argue that the evidence does not support the amount awarded by the jury. Lewis argues in particular that the evidence does not support the award against him of twice the amount of punitive damages awarded against Fraser. This is one of those cases in which it would be particularly helpful to this Court for the trial court to set out its reasons for concluding that the verdict was not excessive. Therefore, we remand the case for a determination as to whether the damages were excessive, in accordance with Hammond v. City of Gadsden, supra, and Green Oil Co. v. Hornsby, supra.[5]
AFFIRMED IN PART; AND REMANDED WITH DIRECTIONS.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The third general partner, Joe C. Mitchell, was also named as a defendant; however, he failed to appear at trial and a default judgment was entered against him. Mitchell did not appeal from that judgment.
[2] See Lawson v. Cagle, 504 So. 2d 226 (Ala.1987), where this Court reversed the judgment entered for the plaintiff on the jury's verdict and rendered a judgment for the defendant, holding that the defendant's representation as to certain future events constituted an expression of opinion on which the plaintiff had no right to act.
[3] The defendants suggest in their briefs that the trial court's failure to give certain written requested instructions concerning the elements of fraud predicated on a promise or representation as to a future event rendered the instruction on reckless fraud confusing to the jury. The only basis upon which one may recover for fraud, where the alleged fraud is predicated on a promise to perform or to abstain from an act in the future, is when the evidence shows that, at the time the promise of future action or abstention was made, the promisor had no intention of carrying out the promise, but rather had a present intent to deceive. Benetton Services Corp. v. Benedot, Inc., 551 So. 2d 295 (Ala.1989). As previously noted, however, the trial court's instruction on reckless fraud was a correct statement of the law and, just like the instruction as to when a statement of opinion can constitute actionable fraud, it told the jury in a clear and concise manner everything it needed to know.
[4] The following requested written instruction was refused by the trial court:
"If you find from the evidence that the Defendant, Russell M. Fraser, did not actively participate in the management of Margaret Clara Apartment Complex [Group], Ltd., based upon the representation of Joe C. Mitchell that he (Mitchell) would be completely in charge of management, then you cannot return a verdict against Russell M. Fraser for punitive or exemplary damages."
This instruction does not deal directly with the question of whether one general partner can be liable for punitive damages as a result of false representations made by another general partner, and it is an incorrect statement of the law in this case. The extent of Fraser's, or Lewis's, participation in the management of the partnership was not the sole determining factor as to whether they were liable to the plaintiffs for fraud. The trial court did not err in refusing this requested instruction.
[5] We note the defendants' argument that the trial court's judgment allowed the plaintiffs a double recovery of compensatory damages. This argument is based upon the trial court's entry of a default judgment in favor of each of the plaintiffs against Mitchell in an amount equal to the total amount of compensatory damages awarded to each of the plaintiffs against both Lewis and Fraser. For example, the jury awarded Tichansky $2,350 in compensatory damages against Fraser and $4,700 in compensatory damages against Lewis, for a total of $7,050the amount of Tichansky's investment in the partnership. The trial court entered a judgment in favor of Tichansky against Mitchell for $7,050 in compensatory damages. The trial court followed this pattern as to each of the plaintiffs. It is familiar law that there can be but one recovery for a single injury or loss. Although there may be several joint tortfeasors, a plaintiff is not permitted to sue one tortfeasor and satisfy his judgment, and then sue another tort-feasor to recover again. Once the judgment has been satisfied for a single injury or loss, no other suits by the plaintiff against any tortfeasor are permitted in regard to the same injury or loss. Ex parte Rudolph, 515 So. 2d 704 (Ala.1987). The record is unclear as to whether this issue was properly brought to the trial court's attention so as to preserve it for appellate review; however, assuming that it was, we see no merit in the defendants' contention. The trial court did no more than enter a judgment against Mitchell for the amount of compensatory damages found by the jury to be due each plaintiff. The jury's apportionment of compensatory damages among the defendants and the trial court's entry of judgment on that verdict did not allow a double recovery by the plaintiffs. Of course, the plaintiffs are entitled to satisfy their judgment only to the extent of the compensatory damages awarded by the jury (i.e., $7,050 for Tichansky, $10,575 for Scholz, $14,100 for Reynolds, and $28,200 for Windham). | September 14, 1990 |
a0b1b080-d2f9-4450-a2ae-25bd9c629291 | Breen v. Baldwin County Fed. Sav. Bank | 567 So. 2d 1329 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1329 (1990)
Gary L. BREEN
v.
BALDWIN COUNTY FEDERAL SAVINGS BANK.
89-508.
Supreme Court of Alabama.
September 14, 1990.
*1330 Marion E. Wynne of Wilkins, Bankester, Biles and Wynne, Fairhope, for appellant.
J. Don Foster and Thack H. Dyson of Foster, Dyson & Curenton, Foley, for appellee.
HOUSTON, Justice.
Gary L. Breen appeals from a summary judgment in favor of Baldwin County Federal Savings Bank ("the Bank"), in this action by the Bank to recover on a promissory note. We affirm.
The Bank's complaint reads, in pertinent part, as follows:
The complaint was served on Breen, along with the following request for admission of facts:
Breen filed the following answer to the complaint:
Breen did not respond to the Bank's request for admission of facts.
Crosby stated in his affidavit that, in his opinion, a 15% attorney fee was reasonable for the collection of the balance allegedly due on the note. Breen responded to the Bank's motion by filing two affidavits and an amended answer. In his amended answer, Breen alleged that the foreclosure sale had been conducted in a commercially unreasonable manner, and he stated in his affidavits that, in his opinion, the Bank had not paid a commercially reasonable price for the property that was the subject of the foreclosure sale. The trial court entered a summary judgment for the Bank in the amount of $26,117.56; this appeal followed.
We note at this point that the summary judgment was proper in this case if there was no genuine issue of material fact and the Bank was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the Bank 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 Breen to present sufficient evidence to defeat that prima facie showing and thereby to avoid the entry of a judgment against him. Hanners v. Balfour Guthrie, 564 So. 2d 412 (Ala.1990). We further note that all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the Bank. Hanners v. Balfour Guthrie, Inc. Because the Bank's complaint was filed on May 12, 1989, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12.
Breen contends that the summary judgment was improper because, he says, a genuine issue of material fact exists as to whether the foreclosure sale was conducted in a commercially reasonable manner. The Bank points out that Breen failed to respond to its request for admission of facts, as required by Rule 36, A.R.Civ.P., and, it argues, therefore, that the matters enumerated in that request (i.e., generally, that the factual allegations of the complaint were true and correct) were deemed admitted. This, the Bank argues, along with the affidavits of Bauer and Crosby, prima facie showed that it was entitled to a judgment as a matter of law. The Bank also argues that Breen's affidavits submitted in opposition to its motion were insufficient to create a triable issue of fact. We agree.
Although Breen filed an answer denying every material allegation of the complaint, he did not respond to the Bank's request for admission of facts. The record indicates that the trial court considered the matters enumerated in the request to be admitted. Breen never argued to the trial court, and he does not argue on appeal, that the matters enumerated in the request for admission of facts should not have been considered to be admitted under Rule 36. Therefore, we consider those matters to have been admitted by Breen.
Breen argues that his affidavits were sufficient to create a genuine issue of fact as to the commercial reasonableness of the foreclosure sale. As previously noted, the Bank had the burden of showing that it was entitled to recover from Breen the amount that it had alleged was due. The record shows that the Bank made a prima facie showing that it was entitled to a judgment as a matter of law; therefore, the burden shifted to Breen to present evidence tending to show that a triable issue of fact existed. Breen submitted two affidavits in which he stated that, in his opinion, the Bank had paid a commercially unreasonable price for the property that was *1332 the subject of the foreclosure sale. The first affidavit reads, in pertinent part, as follows:
The second affidavit, in pertinent part, states:
After carefully reviewing Breen's affidavits, we conclude that they were sufficient to prove only that at one time some of the lots in question had had a fair market value of approximately $25,000; that, thereafter, the fair market value of the lots began to drop as the result of a slump in the real estate market; and that the Bank purchased the lots at the foreclosure sale for less than Breen thought it should. The affidavits do not provide sufficient information concerning the relative sizes of the lots and their locations or the circumstances surrounding the purchase of the lots by the Bank to support a reasonable inference that the amount paid by the Bank was less than fair market value. Furthermore, even if a reasonable inference could be drawn from the affidavits that the amount paid by the Bank for the lots was less than their fair market value, we could not conclude that the amount paid was so inadequate as to raise a presumption of fraud, unfairness, or culpable mismanagement. See Hayden v. Smith, 216 Ala. 428, 430-31, 113 So. 293 (1927), where this Court stated:
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ADAMS and STEAGALL, JJ., concur.
ALMON, SHORES and KENNEDY, JJ., dissent. | September 14, 1990 |
bdcee037-41c0-43c0-98ac-4d3d52976fd0 | Cahaba Seafood, Inc. v. Central Bank | 567 So. 2d 1304 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1304 (1990)
CAHABA SEAFOOD, INC., et al.
v.
CENTRAL BANK OF THE SOUTH, et al.
89-634.
Supreme Court of Alabama.
September 7, 1990.
*1305 Stephen D. Heninger of Heninger, Burge and Vargo, Birmingham, for appellants.
Michael L. Edwards, Patricia McGee Dodson, and Kelly King Kelley of Balch & Bingham, Birmingham, for appellees.
ADAMS, Justice.
This is an appeal from a summary judgment entered in favor of Central Bank of the South on claims by the appellants, Cahaba Seafood, Inc., and Tom and Frances Greenhalgh, for damages based on alleged intentional interference with business relations, fraud and misrepresentation, negligence and/or wantonness, and economic duress. The plaintiffs had also alleged breach of contract; however, that claim is still pending before the trial court. With regard to the claims pertinent to this appeal, the trial judge certified the judgment final pursuant to Rule 54(b), A.R.Civ.P. We affirm.
Tom and Frances Greenhalgh moved to Birmingham with the intention of opening a retail and wholesale seafood business. In order to finance their business venture, they formed a corporation, Cahaba Seafood, Inc., and sought a construction loan for their new building. Originally, they obtained a loan from National Bank of Commerce; however, they eventually borrowed $275,000 through Central Bank and the Small Business Administration to pay off their loan at National Bank and to meet the cost overruns of their building. Thereafter, Cahaba Seafood sought a line of credit from Central Bank in order to set up and maintain working capital for the new business. A line of credit was established with the following pertinent provisions:
Central Bank contends that $25,000 was the maximum line of credit offered by it and that it had agreed to lend an amount totalling up to 80 percent of the accounts receivable until the loan reached the $25,000 limit. Plaintiffs, however, contend that the agreement provided for a $25,000 credit line and that, in addition, Central Bank was to lend an amount equal to up to 80 percent *1306 of the accounts receivable. Furthermore, the plaintiffs argue that the Wynfrey Hotel should have been allowed to make 30-day payments under the "weekly terms or longer" provision of the contract instead of being forced to pay on a weekly basis as required by Central Bank.
First, the plaintiffs argue that the summary judgment should not have been entered as to their claim alleging intentional interference with business relations. We have written:
Lowder Realty, Inc. v. Odom, 495 So. 2d 23, 25 (Ala.1986). In the case at bar, there is a dispute over the proper interpretation of the contract between Central Bank and the plaintiffs. The plaintiffs' intentional interference claim involves an alleged breach of contract on the part of Central Bank that happened to affect their relationship with the Wynfrey Hotel. The tort of intentional interference with business relations was intended to provide a remedy for situations where a third party intentionally interferes with the relationship of two contracting parties, not as a remedy for situations where an allegedly breached contract between two parties (here the plaintiffs and Central Bank) affects the relationship of one of the parties with a third party. In the case sub judice, the plaintiffs filed an action for breach of contract, which would be a remedy for the alleged wrong committed by Central Bank. If Central Bank is found to have breached that contract, then the money lost with regard to the Wynfrey account would be part of the potential damages to which the plaintiffs would be entitled. Summary judgment was proper with regard to the claim of intentional interference with business relations.
Second, the plaintiffs contend that the trial judge erred in entering the summary judgment as to their claim alleging fraud and misrepresentation. We disagree. There is nothing in the record that indicates that, when the contract was entered into between the parties, Central Bank intended not to honor the contract in full. Because the agreement entered into by the parties concerned future acts to be performed by Central Bank, i.e., disbursement of funds to Cahaba Seafood, it was incumbent on the plaintiffs to provide some evidence that the bank, at the time it made the contract, did not intend to honor it. See H.C. Schmieding Produce Co. v. Cagle, 529 So. 2d 243, 249 (Ala.1988). The plaintiffs have made no offer of evidence to show that Central Bank intended to deceive them when the agreement was entered into by the parties. Therefore, the summary judgment was also proper as to this claim.
Third, the plaintiffs argue that the trial judge should not have entered the summary judgment as to their claim alleging economic duress. As pointed out by Central Bank in its brief, we have heretofore refused to recognize economic duress as an independent tort. We reaffirm that refusal. See Guillot v. Beltone Electronics Corp., 540 So. 2d 648 (Ala.1988).
Finally, the plaintiffs contend that the summary judgment was improper as to their claim of wantonness and/or negligence. Again, we disagree; we find that Central Bank owed no duty to Cahaba Seafood outside the confines of the agreement. Central Bank was under no additional obligation to help Cahaba Seafood to extricate itself from its financial difficulties.
For the foregoing reasons, the summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | September 7, 1990 |
53852f1a-91d0-45e9-b307-67b702592f57 | Dickens v. Southtrust Bank of Alabama | 570 So. 2d 610 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 610 (1990)
Barbara DICKENS
v.
SOUTHTRUST BANK OF ALABAMA, N.A., et al.
88-1112.
Supreme Court of Alabama.
September 14, 1990.
Rehearing Denied November 16, 1990.
*611 Leon Garmon, Gadsden, for appellant.
James W. Gewin and John D. Watson of Bradley, Arant, Rose & White, Birmingham, for appellees.
KENNEDY, Justice.
Barbara Dickens filed an action against Birmingham Trust National Bank, N.A. ("BTNB"), SouthTrust Bank of Alabama, N.A. ("SouthTrust"), SouthTrust Mobile Services, Inc., H.D. Marshman, Greg Rogers, and Kathy Rogers, alleging fraud and misrepresentation in one count and fraud and civil conspiracy in another count. The trial court entered summary judgment for the defendants on both counts.
In April 1983, Dickens purchased a mobile home and lot from Greg and Kathy Rogers. Dickens paid the Rogerses $5,000 for their equity in the mobile home and lot, and she also executed a promissory note to SouthTrust. H.D. Marshman, an officer of SouthTrust, arranged the financial transactions between the Rogerses, SouthTrust, and Dickens. The "closing" of the sale of the mobile home and lot occurred on April 14, 1983. Dickens alleges that Marshman promised her that she would receive the deed to the real estate within 30 to 45 days of the closing. She did not receive the deed within that time period, and Marshman's alleged promise is the basis for Dickens's action. It is unclear from the record whether Dickens ever received a deed to the property. Dickens, however, currently remains in possession of the property.
Dickens filed this action on April 30, 1985. According to her testimony, she had recognized the alleged misrepresentation by the fall of 1983, but she testified as follows:
Dickens's husband confirmed that she was aware of the misrepresentation by the fall of 1983:
(Emphasis added.)
At the time of the alleged misrepresentation, an action alleging fraud was subject *612 to a one-year statute of limitations. See Ala.Code 1975, former § 6-2-39, and see § 6-2-3. Effective January 9, 1985, the legislature amended § 6-2-3 and repealed § 6-2-39. See Ala.Acts, 1984-85, No. 85-39, and see Lader v. Lowder Realty Better Homes & Gardens, 512 So. 2d 1331, 1333 (Ala.1987). The change transferred fraud actions to § 6-2-38, which provides a two-year period of limitations; however, actions that had been barred as of January 9, 1985, by the one-year statute of limitations were not revived by the transfer of fraud actions to the two-year statute or by the corresponding amendment to § 6-2-3. Lader.
Under § 6-2-3 a claim for fraud accrues at the time of the "discovery by the aggrieved party of the fact constituting the fraud." § 6-2-3; Lader at 1333. Fraud is discovered when it ought to or should have been discovered; that is, "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, at 1333; Kelly v. Smith, 454 So. 2d 1315 (Ala. 1984).
The testimony of Dickens and her husband quoted above indicates that by November 1983, Dickens had facts that upon closer examination would have led to discovery of the alleged misrepresentation. Accordingly, at the end of November 1984, at the latest, the action would have been barred by the one-year statute of limitations. Because the action was time-barred in November 1984, before the transfer of fraud actions to the two-year statute on January 9, 1985, Dickens's action is barred by the statute of limitations. Lader, supra.
The judgment of the trial court is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | September 14, 1990 |
358ae3d4-bb5f-4555-b312-01e05594d0dc | McConico v. CORLEY, MONCUS AND BYNUM | 567 So. 2d 863 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 863 (1990)
James McCONICO, Jr.
v.
CORLEY, MONCUS AND BYNUM, P.C., and Frank Bynum.
89-922.
Supreme Court of Alabama.
September 7, 1990.
*864 James McConico, Jr., pro se.
W. Lewis Garrison, Birmingham, for appellees.
SHORES, Justice.
The plaintiff, James McConico, Jr., appeals from a summary judgment for the defendants, Corley, Moncus and Bynum, P.C. (hereinafter referred to as Corley, Moncus), and Frank K. Bynum. We affirm.
The pleadings of this case, viewed most favorably to McConico, tend to show the following: McConico contracted to purchase a piece of property from Richard Reese and Charles Sterne on October 15, 1982. The closing of this real estate purchase occurred on October 22, 1982, and was conducted by Frank K. Bynum, Esq., a lawyer with Corley, Moncus. Mr. Bynum prepared a settlement statement and a warranty deed in conjunction with the closing; the sales contract was not prepared by Bynum nor by anyone associated with Corley, Moncus. Neither the settlement statement nor the warranty deed, documents that McConico inspected (and one of whichthe settlement statementhe signed), indicated that Charles Sterne was a seller of the property.
McConico bases his fraud claim against Corley, Moncus on Bynum's allegedly fraudulent misrepresentation that Sterne was an owner of the property in question, and on McConico's claim that he would not have contracted for the purchase of the property had he known that Sterne was not an owner. The elements of fraud are: 1) a false representation; 2) regarding a material existing fact; 3) which the plaintiff relies upon; and 4) damages proximately caused by the misrepresentation. Smith v. J.H. Berry Realty Co., 528 So. 2d 314, 316 (Ala.1988). Any reliance must be justifiable under all the facts of the case. "Justifiable reliance" has been defined as follows:
Hickox v. Stover, 551 So. 2d 259, 263 (Ala. 1989). Under the facts of this case, McConico would have to have closed his eyes to avoid discovery of the truth. All the documents prepared by Bynum clearly demonstrated that Reese was the seller, and these documents were inspected and/or signed by McConico.
Summary judgment is proper when there exists 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.; Pittman v. Gattis, 534 So. 2d 293, 294 (Ala.1988). In determining whether the moving party has met its burden, the *865 trial court must view the facts in the light most favorable to the non-moving party. Id., at 294, citing Fulton v. Advertiser Co., 388 So. 2d 533 (Ala.1980), cert. denied, 449 U.S. 1131, 101 S. Ct. 954, 67 L. Ed. 2d 119 (1981). After allowing sufficient time for interrogatories to be answered and affidavits to be submitted, the trial court determined that summary judgment for Corley, Moncus and for Frank K. Bynum was proper. This determination was made in accordance with the mandates of Rule 56(c) and relevant case law, Pittman, supra. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | September 7, 1990 |
6f2645e2-de79-465c-a205-2ea3b50b79df | JOISON LIMITED v. Taylor | 567 So. 2d 862 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 862 (1990)
JOISON LIMITED, a Corporation
v.
Frank H. TAYLOR, et al.
89-648.
Supreme Court of Alabama.
September 7, 1990.
*863 Mack B. Binion and Donna L. Ward of Briskman, Binion & Browning, Mobile, for appellant.
John Grow, Mobile, for appellees.
PER CURIAM.
We will assume, without deciding, that the plaintiff, a foreign corporation, was doing business in Alabama. Nevertheless, because the undisputed facts show that the plaintiff's activities in Alabama constituted interstate commerce, we hold that § 232, Alabama Constitution 1901, and Ala.Code 1975, § 10-2A-247 and § 40-14-4, which bar a foreign corporation not qualified to do business in Alabama from enforcing its contracts in the courts of this state, are inapplicable.
The issue is not whether the plaintiff was doing business in Alabama, but whether its business activities were intrastate or interstate in nature. If the activities of a foreign corporation are interstate, then its doing business here is protected by the Commerce Clause of the United States Constitution, and Alabama's nonqualifying statutes, which otherwise might interfere with or prohibit the business, are inapplicable. Because the undisputed material facts in this case are indistinguishable from those in Kentucky Galvanizing Co. v. Continental Casualty Co., 335 So. 2d 649 (Ala.1976), we reverse the judgment dismissing the claim and remand the cause. See, also, North Alabama Marine, Inc. v. Sea Ray Boats, Inc., 533 So. 2d 598 (Ala. 1988); and Aim Leasing Corp. v. Helicopter Medical Evacuation, Inc., 687 F.2d 354 (11th Cir.1982).
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur. | September 7, 1990 |
8430cf96-5f97-4c92-ad06-d85e12e8f6df | Colburn v. Wilson | 570 So. 2d 652 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 652 (1990)
Scott W. COLBURN and Susan M. Colburn
v.
Dr. Barry WILSON.
89-168.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied November 2, 1990.
*653 John Galvin, Birmingham, for appellants.
Charles A. Stakely of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellee.
KENNEDY, Justice.
This is a medical negligence case. The plaintiffs, Scott and Susan Colburn, filed suit in the Circuit Court of Montgomery County against the defendant, Dr. Barry Wilson, alleging that he committed acts of negligence during the course of his treatment of Mrs. Colburn in 1985 and 1986.
The Colburns appeal from a summary judgment entered in favor of Dr. Wilson. The issues before this Court are whether the Colburns stated a cause of action, and if so, whether the cause of action was time-barred by the statute of limitations.
During the summer of 1985, Susan Colburn became pregnant. In August of that year, she had her first appointment with Dr. Wilson. On August 27, 1985, Wilson performed a sonogram on Colburn in order to locate her baby's heartbeat.
On October 4, 1985, Mrs. Colburn made an unscheduled visit to Dr. Wilson's office because of unexplained bleeding. She was referred to Montgomery Radiology Associates, P.A. for another sonogram. That sonogram revealed that the bleeding was due to a "low placenta." It did not reveal any physical defects.
During Mrs. Colburn's regularly scheduled visit in November, Wilson's technician performed a sonogram. No photographic record of that sonogram was made, as there was no film in the equipment. Wilson was not present for the test and did not review any results of the test as there were none.
On February 3 or 4, 1986, Mrs. Colburn was again seen by Wilson for a routine examination. During that visit, another sonogram was made. There was evidence that the purpose of performing a sonogram during this visit was to take a souvenir picture of the baby for Mrs. Colburn and her husband. This test revealed the presence of certain physical defects. Following further tests at Montgomery Radiology, the baby was diagnosed as having hydrocephalus and possibly spina bifida.
At the Colburns' request, Dr. Wilson attempted to locate a facility that would perform an abortion. Because Mrs. Colburn was in her 31st week of pregnancy, Dr. Wilson was unable to arrange to have the pregnancy terminated.
Following the diagnosis and the unsuccessful attempts to arrange for a termination of the pregnancy, the Colburns made several visits to Birmingham for treatment and counseling. Mrs. Colburn's last visit to Dr. Wilson was on March 26, 1986, and Ryan Colburn was born on March 31, 1986.
In their suit, the Colburns contend that the November sonogram was performed negligently. They argue that that negligence prevented an early detection of the physical defects and deprived them of the opportunity to terminate the pregnancy by a legal abortion.
For the purpose of discussing whether this suit was time-barred by the applicable *654 statute of limitations, the Court will assume, without deciding, that the Colburns stated a legally cognizable cause of action.
The statute of limitations under the Alabama Medical Liability Act requires that all actions be brought "within two years after the act of or omission or failure giving rise to the claim." Ala.Code 1975, § 6-5-482.
The statutory limitations period does not begin to run until the cause of action accrues. Ramey v. Guyton, 394 So. 2d 2 (Ala.1980). A cause of action accrues when the act complained of results in injury to the plaintiff. Guthrie v. Bio-Medical Laboratories, Inc., 442 So. 2d 92 (Ala.1983).
Under the facts of this case, we must conclude that the alleged wrongful act or omission occurred during November 1985. The Colburns discovered the child's physical defects on February 3 or 4, 1986. The baby was born on March 31, 1986. Suit was filed in March 1988.
If the date of the birth of the child is determinative of when the cause of action arose, the suit is not time barred. If it is at some relevant point prior to that, it is.
At the latest, the cause of action accrued on February 3 or 4, 1986, when the Colburns discovered that their baby would be born with birth defects. It is at that point that they would have been injured and would have begun to suffer damage.
We will not discuss whether the Colburns in fact stated a cause of action. We have merely assumed that there was a cause of action for purposes of discussing the statute of limitations. Because any claim presented by the Colburns would be time-barred, any discussion of the merits of the claim is inappropriate.
We affirm the summary judgment.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | September 28, 1990 |
ad966bdb-97be-48b5-86cd-87261ed7238d | Parker v. Hilliard | 567 So. 2d 1343 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1343 (1990)
James H. PARKER
v.
Earl F. HILLIARD, et al.
89-947.
Supreme Court of Alabama.
September 14, 1990.
*1344 William M. Pompey, Camden, for appellant.
Wade K. Wright and W.J. McDaniel of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellees.
MADDOX, Justice.
This is an appeal from a trial court's dismissal of a complaint that sought a court order setting aside the appointment of a member to the Birmingham Horse Racing Commission and the subsequent certification of that appointment.[1]
The sole issue presented is whether the appointing authority followed the statutory mandate for appointing a successor commissioner to succeed one whose term was expiring.
On May 9, 1989, State Senators John E. Amari, James R. Bennett, William Cabaniss, and McArthur D. Parsons, members of the Jefferson County senate delegation, attended a meeting called by Mayor Richard Arrington of Birmingham. The stated purpose for the meeting was to appoint a member to replace Commissioner James Parker, the plaintiff, whose term was expiring. Parker was a member on the five-member board of the Birmingham Horse Racing Commission, and his term of office was to expire on July 1, 1989, at noon.[2] At the May meeting, all of the state senators present agreed that pursuant to their understanding of § 11-65-5(c), pertaining to the appointment of a successor commissioner, they could not legally appoint a successor commissioner until June 1, 1989, at the earliest.[3] Thus, the May 9, 1989, meeting was adjourned without a vote or even a nomination, but with an agreement between the mayor and the senate delegation that another meeting would be convened on June 12, 1989, at which time the senate delegation would appoint a member. On June 12, 1989, the senate delegation reconvened for a public meeting for the purpose of appointing a successor to Commissioner *1345 Parker.[4] In that meeting, Stephen J. Shader, Jr., was appointed by the senate delegation for a five-year term of office on the Birmingham Horse Racing Commission, the appointment to be effective at noon on July 1, 1989. On June 15, 1989, Senator Bennett, the secretary of the Jefferson County senate delegation, filed a certificate of appointment with the secretary of state, as required by Ala.Code 1975, § 11-65-5(c).[5] On June 20, 1989, former Commissioner Parker filed a complaint in the Circuit Court of Jefferson County, Alabama. In that complaint, Parker asserted that the appointment of Shader was void ab initio, because, he contended, the senate delegation had failed to comply with Ala.Code 1975, § 11-65-5(a), the subsection that Parker says applies to the appointment of a successor commission member.[6] Parker argued that because the senate delegation initially met on May 9, 1989, to appoint a new commission member but did not reconvene within 30 days of that initial meeting date the senate delegation forfeited its statutory right to appoint a successor member to that commission, and that the right to appoint a successor member then vested in Mayor Richard Arrington. Consequently, Parker asked the trial court to enter a judgment setting aside the appointment and enjoining the certification of that appointment to the secretary of state.
On July 18, 1989 Senators John E. Amari, James Bennett, William Cabaniss, Earl F. Hilliard, and Fred Horn filed a motion to dismiss the complaint, pursuant to Rule 12(b)(6), A.R.Civ.P., arguing that Parker had failed to state a claim upon which relief could be granted. On August 24, 1989, after the trial court had held an ore tenus hearing on the senators' motion to dismiss, it entered an order dismissing Parker's complaint with prejudice.
In its order, the trial court stated that the facts involved in this case were undisputed and that all parties agreed to stipulate to those facts. Thus, by taking stipulated evidence and ruling on the merits of Parker's claim, the trial court, in effect, treated the motion to dismiss as a motion for summary judgment. When a trial judge considers matters outside the pleadings in ruling on a motion to dismiss, the judgment should be treated as a summary judgment. Carmichael v. Riley, 534 So. 2d 280, 282 (Ala.1988).
The trial court ruled that the appointment of Stephen J. Shader, Jr., to the Birmingham Horse Racing Commission on June 12, 1989, did not violate the statute. Additionally, the trial court stated in its order that Ala.Code 1975, § 11-65-5(a), did not apply to the appointment of a successor *1346 commission member, contrary to the argument by Parker; instead, the trial court stated that Ala.Code 1975, § 11-65-5(c), as asserted by the senate delegation in its motion to dismiss, was the subsection applicable to the appointment of a successor commission member. Finding that the delegation had abided by the provisions of that subsection, the trial court held that the senate delegation had legally appointed Stephen J. Shader, Jr., to the Birmingham Horse Racing Commission. On October 2, 1989, Parker filed a notice of appeal with the Alabama Court of Civil Appeals. On March 22, 1990, that court, citing a lack of subject matter jurisdiction, transferred the case to this Court.
In his complaint, Parker bases his request for relief on the sole premise that the senate delegation lost its authority to make the appointment by not reconvening for the appointment of a commission member within 30 days of its initial meeting held on May 9, 1989. According to Parker's interpretation of § 11-65-5(a), the senate delegation forfeited its right to make the appointment and the right of appointment then vested in the mayor of Birmingham, Richard Arrington, and the attempted appointment by the senate delegation was void ab initio.
Whether the trial court erred in ruling against Parker hinges on whether the trial court erred in its interpretation of § 11-65-5(c). The trial court held that the appointment of a successor commission member is governed by § 11-65-5(c), not by § 11-65-5(a) as argued by Parker in his complaint. In the area of statutory construction, the duty of a court is to ascertain the legislative intent from the language used in the enactment. When the statutory pronouncement is clear and not susceptible to a different interpretation, it is the paramount judicial duty of a court to abide by that clear pronouncement. See Ex parte Rodgers, 554 So. 2d 1120 (Ala. 1989), and East Montgomery Water, Sewer & Fire Protection Authority v. Water Works and Sanitary Sewer Bd. of the City of Montgomery, 474 So. 2d 1088 (Ala. 1985). Courts are supposed to interpret statutes, not to amend or repeal them under the guise of judicial interpretation.
From the express language of Ala. Code 1975, § 11-65-5(c), it appears that the legislature intended to impose the requirement that a legislative delegation responsible for the appointment of a successor member to a horse racing commission make such an appointment within 30 days prior to the date on which that appointed member is to take office, and not earlier. Because the record clearly indicates that the appointed member could not assume office until July 1, 1989, the senate delegation, which was responsible for making the appointment, could not have legally made it on May 9, 1989, a fact that the senate delegation rightfully recognized at that meeting. The earliest date on which the senate delegation could have made such an appointment under the statute was June 1, 1989, exactly 30 days prior to the date on which the appointed member could assume office. Because the senate delegation met again on June 12, 1989, clearly within the time frame mandated in the statute for the appointment of a successor commission member, this Court, as did the trial court, concludes that the appointment of Stephen J. Shader, Jr., to the Birmingham Horse Racing Commission was valid.
Having carefully considered the issue presented to the trial court and being convinced that the trial court correctly decided that issue, we affirm its judgment.
AFFIRMED.
HORNSBY, C.J., and ALMON, SHORES and STEAGALL, JJ., concur.
[1] The statute that permits so-called "class 1" municipalities [i.e., cities with a population of 300,000 inhabitants or more, see Ala.Code 1975, § 11-40-12(a)], like Birmingham, to create and operate a horse racing commission is found in Ala.Code 1975, §§ 11-65-1 to 11-65-47.
[2] Ala.Code 1975, § 11-65-5(a), declares that every horse racing commission created under this statute shall be composed of five members. Two of those members, who shall be members ex officio, must be the "mayor or other chief executive officer of the sponsoring municipality and the president or other designated presiding officer of the county commission of the host county." The state's lieutenant governor, the host county house delegation, and the host county senate delegation each appoints one member to the commission, and together they thereby fill the remaining three seats on that commission.
The term of office of each of the appointed commission members, who are appointed on a staggered-term basis, is for five years; each commissioner's term of office commences at noon on July 1, at which time the term of office of the immediate predecessor member ends. See Ala.Code 1975, § 11-65-5(b).
[3] Ala.Code 1975, § 11-65-5(c), states in part the following:
"The appointment of each appointed member (other than those initially appointed), whether for a full five-year term or to complete an unexpired term, shall be made by the officer or legislative delegation responsible for the appointment of the member whose term shall have expired or is to expire or in whose position a vacancy otherwise exists and shall be made not earlier than 30 days prior to the date on which such member is to take office as such." (Emphasis added.)
[4] In addition to the four senators present at the initial meeting called on May 9, 1989, Senator Earl Hilliard, also a member of the Jefferson County senate delegation, attended the meeting held on June 12, 1989. Although he was not present at either the May or the June meeting, Senator Fred Horn is the final member of the Jefferson County senate delegation.
[5] Ala.Code 1975, § 11-65-5(c), states in part the following:
"Appointments shall be evidenced by a written certificate executed by the appointing official, or, in the case of appointments made by a majority of the other members, by a certificate signed by the members making such appointment, or, in the case of appointments made by a legislative delegation, by the members of the delegation voting for such appointment or by a member of the delegation designated to serve as the secretary of the meeting at which such appointment is made and to report the results thereof to the secretary of state. The certificates evidencing the appointment of members of a commission shall be addressed and delivered to the secretary of state, who shall maintain the originals of such certificates as official records in his office." (Emphasis added.)
[6] Ala.Code 1975, § 11-65-5(a), states in part the following:
"Any meeting of the host county house delegation or the host county senate delegation at which fewer than a majority of the members of such delegation are present, or at which no appointment of a member is made because of a failure to obtain the approval of a majority of the members of such delegation, may be adjourned to a future time and place announced at such meeting; provided that, if either delegation fails to appoint a member within 30 days of the date of the first meeting called for the purpose of such appointment, the right of such delegation to appoint a member shall terminate and such appointment shall be made as soon thereafter as practicable by the mayor or other chief executive officer of the sponsoring municipality." (Emphasis added.) | September 14, 1990 |
bc6ba4ef-a5a3-4bdd-9160-ec1c53b18b4c | Gore v. Health-Tex, Inc. | 567 So. 2d 1307 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1307 (1990)
Deborah GORE
v.
HEALTH-TEX, INC.
89-782.
Supreme Court of Alabama.
September 7, 1990.
David B. Carnes of Carnes, Wamsley, Waid & Hyman, Gadsden, for appellant.
James C. Stivender of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment entered in favor of Health-Tex, Inc. The appellant, Ms. Deborah Gore, in October 1987, filed a complaint alleging slander and claiming that she was entitled to damages arising out of allegedly defamatory statements, which, she says, she herself was required to publicize, concerning the termination of her employment at Health-Tex.
In 1986, Ms. Gore was employed by Health-Tex to operate a sewing machine at its plant. Approximately one month after beginning work, she began having pains in her back and shoulder and, upon consulting a physician, she learned that she was suffering from fibrositis, an inflammation of the fibers under the skin. The physician gave her injections and oral medication and advised her to slow down her arm movements. The company was never notified of her condition, which disappeared after approximately two months. Ms. Gore left the employment of Health-Tex sometime thereafter. Subsequently, Ms. Gore was rehired by Health-Tex and, pursuant to company policy, she was interviewed by the company nurse regarding any health problems she had had while working with Health-Tex in the past and any other problems she had encountered since her previous employment there. Ms. Gore did not mention her fibrositis.
After working for Health-Tex for approximately one month, and while still in her probationary period with the company, Ms. Gore experienced a recurrence of her fibrositis. When she consulted the nurse regarding her symptoms, she explained that she had had the condition during her previous employment with Health-Tex. She was given some anti-inflammatory drugs and the nurse adjusted the chair at her work station to ease the strain on her back. Shortly after reporting her condition to the nurse, Ms. Gore was called in by *1308 managing personnel at Health-Tex and was asked to resign. When she refused to do so, she was terminated for falsifying company records, i.e., for not revealing her previous health condition when she was rehired. When applying for other jobs, Ms. Gore alleged, she was required to put on her application as the reason she left her previous employment that she was fired for "falsifying company records." Eventually, she applied for unemployment compensation and a referee determined that her acts did not rise to the level of dishonesty or criminal acts so as to prevent her from receiving compensation pursuant to § 25-4-78(3)(a), Code of Alabama (1975).[1] Ms. Gore thereafter filed her complaint, alleging slander. The trial court granted Health-Tex's motion for summary judgment. We affirm.
Ms. Gore contends that she was required to publicize to potential employers that she had been terminated from her job at Health-Tex for "falsifying company records." In addition, she argues that a statement made to a prospective employer by an employee at Health-Tex also constituted "publication."
First, we note that both parties agree that any publication made between a previous employer and a prospective employer is protected by a conditional privilege, pursuant to the following test:
Kirby v. Williamson Oil Co., 510 So. 2d 176, 179 (Ala.1987). Ms Gore concedes that the privilege exists with regard to the inquiry made by prospective employer David Richardson regarding Ms. Gore's termination. Health-Tex's personnel manager verified Richardson's specific inquiry, but stated that Gore's termination "had nothing to do with her work record, that she had a very good work record." It is well established that absent a showing of malice, an action alleging slander will not lie where there is a conditional or qualified privilege. Willis v. Demopolis Nursing Home, Inc., 336 So. 2d 1117, 1120 (Ala. 1976); Mead Corp. v. Hicks, 448 So. 2d 308, 313 (Ala.1983).
Willis, supra, at 1120. We can find no evidence of malice at all in the statements made by the personnel manager to Richardson. In fact, the manager went out of her way to let Richardson know that the reason for Ms. Gore's termination had absolutely nothing to do with her work record. Thus, the communication made to David Richardson did not amount to actionable slander.
Ms. Gore also contends that the fact that she was required to self-publicize the reason for her termination was sufficient to find Health-Tex guilty of slander. We disagree. We are not prepared to hold that a plaintiff's own repetition of allegedly defamatory statements can supply the element *1309 of publication essential in a slander action.
For the foregoing reasons, the judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
[1] Section 25-4-78(3)(a) does not allow unemployment compensation where the employee's discharge was for a dishonest or criminal act. The referee ruled that Ms. Gore was entitled to compensation. | September 7, 1990 |
5d563bc4-6a4f-4c2d-bad2-cc5006c85e1b | Lakeview Townhomes v. Hunter | 567 So. 2d 1287 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1287 (1990)
LAKEVIEW TOWNHOMES, et al.
v.
Gavin W. HUNTER and J. Earle Malone.
88-1172.
Supreme Court of Alabama.
September 7, 1990.
*1288 Robert S. Edington, Mobile, for appellants.
Wade B. Perry, Jr. of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellees.
ADAMS, Justice.
Lakeview Townhomes Property Owners' Association ("Association") and Breland Homes, Inc. ("Breland"), a developer of Lakeview Subdivision, filed an action seeking injunctive relief and claiming damages against Gavin W. Hunter and Earle Malone. At trial, the Association and Breland dropped the claim for damages and sought only the injunctive relief, in the form of a permanent injunction prohibiting Hunter and Malone from using the parcel of land made the subject of the action as a roadway for access to Hunter and Malone's property. The trial court denied the injunctive relief and entered a judgment for Hunter and Malone. We affirm.
In June 1982, Lake Forest, Inc. ("Lake Forest"), conveyed to Breland & Breland by warranty deed a parcel of property that Breland & Breland developed as Lakeview Townhomes, Phase II. The description of the property conveyed in that warranty deed does not include the property that is the subject of the plaintiffs' action; the property described in the deed is north of the disputed land. The deed contains the following language:
In April 1983, Breland Builders, Inc., and Purcell Company, Inc. ("Purcell"), recorded a plat of the property described in the deed. Purcell had no ownership interest in the land. The Association introduced parol evidence to indicate that Lake Forest and Purcell were owned and managed by some of the same people and that the person who was both the secretary and general counsel of both Lake Forest and Purcell signed the plat with the name "Purcell."
Unlike the deed, the plat included the disputed land, which is shown on the plat to be a 30-foot-wide drainage and utility easement and driveway. The easement and the driveway are shown to run in the same 30-foot-wide path, and the land described in the deed as Phase II lies immediately north of and adjacent to the easement and driveway. The plat indicates that the easement and driveway run east to west across the property and that the driveway ends in a cul-de-sac. According to the plat, the easement continues past the cul-de-sac to the west.
In June 1983, Purcell attempted to convey to Lakeview Townhomes, Phase II, a non-exclusive easement for ingress and egress across the easement property. Purcell, however, did not own the easement property, according to all the documents in the record.
Later in June 1983, Lake Forest conveyed to Breland & Breland a parcel of property that Breland & Breland developed as Lakeview Townhomes, Phase III. The Phase III property lies immediately south of and adjacent to the easement property. Lake Forest was the owner of the property conveyed.
In January 1984, Lake Forest conveyed to Hunter and Malone several parcels of property located immediately west of and adjacent to Lakeview Townhomes, Phases II and III. About three years later, in May 1987, Lake Forest conveyed to Hunter and *1289 Malone a "non-exclusive right, privilege and easement of ingress and egress" across the easement property. Lake Forest owned the property across which Hunter and Malone's easement was granted. The conveyance contains the following language:
When Hunter and Malone used that easement, the Association and Breland filed this action. The Association argued at the hearing that its members had purchased property in reliance on the representation that the property was at the end of a dead end street and cul-de-sac, not aware that there might be an easement that would allow others to use the land to get to the others' property. At the close of the plaintiffs' case, the trial court explicitly denied the defendants' motions for "directed verdict," although the Association and Breland state otherwise. After the hearing, the trial court entered a judgment, which, in its entirety, states:
The plaintiffs and defendants disagree over what standard of review is applicable to the trial court's factfinding. As Hunter and Malone state, normally when a trial court enters a judgment in a case and does not make specific findings of fact, we must assume that the trial court found the facts necessary to support its judgment, unless the findings would be clearly erroneous and against the great weight of the evidence. Ritchey v. Dalgo, 514 So. 2d 808, 814 (Ala.1987); Popwell v. Greene, 465 So. 2d 384, 387 (Ala.1985). The Association and Breland note:
Justice v. Arab Lumber & Supply, Inc., 533 So. 2d 538, 542 (Ala.1988). They argue, accordingly, that we should consider the evidence de novo.
That argument will not withstand scrutiny, however, because it requires the parties to take the self-contradictory position that there was no disputed evidence when, at the same time, the evidence must have been disputed for them to introduce properly the parol evidence they introduced concerning the documentation involved in the case. The documents in the record tend to establish Hunter and Malone's right to use the easement for ingress and egress across the easement property. Considering the documents carefully, however, we hold that the trial court properly allowed the introduction of parol evidence. During the presentation of that evidence, however, several factual disputes arose. For example, there was a major factual dispute concerning whether Lake Forest intended to execute the plats that Purcell instead executed. When a trial court hears ore tenus testimony, its judgment based upon that testimony is presumed correct and will be reversed only if, after consideration of the evidence and all reasonable inferences therefrom, we find the judgment to be plainly and palpably wrong. Williams v. Nearen, 540 So. 2d 1371 (Ala. 1989).
The Association and Breland raise numerous arguments of reversible error. Specifically, they argue that the recordation of the plat, which was approved by the Baldwin County Commission, created an irrevocable dedication of the land *1290 to the public as a drainage and utility easement; that the approval of the plat created a restrictive easement that cannot be used as a roadway; that the evidence indicated that Lake Forest's name instead of Purcell's name should have been on the plat; that the trial court's judgment, in effect, vacated a portion of the plat, but did not abide by the statute relating to vacating or amending plats in so doing; and that Lake Forest and Purcell merged and that merger validated the prior acts of Purcell in relation to Lake Forest. We have carefully reviewed the record and the applicable law. None of the trial court's holdings are clearly erroneous, and the judgment is not plainly and palpably wrong. The trial court did not commit reversible error. The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | September 7, 1990 |
ef46d66a-3bd1-4b1f-85ad-59348a849cea | JOHNSON BY AND THROUGH McGRAW v. Collier | 567 So. 2d 1311 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1311 (1990)
Jessica Michelle JOHNSON, a minor, By and Through her mother and next friend, Terri McGRAW
v.
John Morgan COLLIER.
89-811.
Supreme Court of Alabama.
September 7, 1990.
*1312 Allen G. Woodard of Cherry & Givens, Dothan, for appellant.
William C. Carn III of Lee & McInish, Dothan, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment by Jessica Johnson, who sued by and through her next friend and mother, Terri McGraw. She appeals from a summary judgment for defendant John Morgan Collier, which was entered because a release had been executed and satisfied with regard to a joint tort-feasor. We reverse and remand.
Johnson, who was injured in the parking lot of Carroll High School in Ozark, Alabama, when she was hit by an automobile driven by Collier, sued Collier and S.A. Graham Construction Company, Inc., which Johnson alleged had negligently striped the parking lot during its construction. Judge Charles Woods held a pro ami hearing at which a release was signed that settled the case with S.A. Graham Construction Company, Inc. for $1,500. The release contained the following clause, which expressly reserved Johnson's right to maintain her suit against Collier:
Judge Woods thereafter entered a "Consent Settlement/Judgment" in favor of Johnson for $1,500. Collier, claiming that the $1,500 paid to Johnson constituted payment of a judgment rather than payment pursuant to a settlement, argues that, as a joint tort-feasor, he has been released from liability. Judge William H. Baldwin entered a summary judgment in favor of Collier.[1] Subsequently, Judge Woods set aside the pro ami "Consent Settlement/Judgment" and entered an order clarifying the nature of the pro ami proceeding; nevertheless, Judge Baldwin refused to set aside the summary judgment in favor of Collier.
We have reviewed the record, and it is clear to us that the intentions of the parties involved in the settlement were to release S.A. Graham Construction Company, Inc., and yet permit the plaintiff to maintain her lawsuit against the primary tort-feasor, Collier. Judge Baldwin cited Maddox v. Druid City Hospital Board, 357 So. 2d 974 (Ala.1978), and Butler v. GAB Business Services, Inc., 416 So. 2d 984 (Ala.1982), as authority for granting Collier's motion for summary judgment. Both of those cases stand for the proposition that the satisfaction of a judgment against a joint tort-feasor releases the other tort-feasors from liability. Maddox, supra, at 975, and Butler, supra, at 986. We conclude, however, that § 12-21-109, Code of Alabama (1975), applies to this case and that Judge Baldwin's reliance on the above-cited cases was *1313 not appropriate in light of this Code section. Section 12-21-109 states as follows:
A reading of the record of the pro ami hearing is all that is necessary to know that the parties intended that the settlement constitute a pro tanto settlement and that Collier not be released from liability by Johnson.
Daugherty v. M-Earth of Alabama, Inc., 519 So. 2d 467, 469 (Ala.1987).
For the foregoing reasons, the judgment is hereby reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON and SHORES, JJ., concur.
[1] Judge Woods had originally recused himself in this case and had held the pro ami hearing with the consent of the parties due to sickness on the part of another judge. | September 7, 1990 |
f3cc8642-dd88-4bca-9280-05c05a6f7512 | Deloney v. Chappell | 570 So. 2d 622 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 622 (1990)
Daniel W. DELONEY
v.
Maxine H. CHAPPELL.
89-900.
Supreme Court of Alabama.
September 14, 1990.
Rehearing Denied October 19, 1990.
*623 Stephen T. Etheredge of Johnson, Etheredge & Dowling, Dothan, for appellant.
Alan C. Livingston of Lee & McInish, Dothan, for appellee.
SHORES, Justice.
Daniel Deloney appeals a judgment for the plaintiff, Maxine Chappell, ordering dissolution of a partnership, payment of a note, attorney fees, and distribution of partnership assets. We affirm.
In January 1984, Daniel Deloney and Maxine Chappell formed a partnership known as Deloney Financial Associates (hereinafter referred to as "D.F.A."). The partnership was formed pursuant to an oral agreement and lasted from January 1984 until December 1985. During its existence as a partnership between Deloney and Chappell, D.F.A. was involved in a variety of investment ventures: apartment complexes, a supply boat for off-shore oil rigs, securities investments, and interests in a major motion picture venture. Prior to the formation of D.F.A., Chappell had worked for Deloney in his financial planning business. During that time Deloney was involved in the development of an apartment complex in Savannah, Georgia, known as "Cross Roads Villas." In connection with that venture, Chappell took a promissory note from Deloney, dated July 7, 1983, for $74,583 plus interest. Chappell received payments only through December 1985, at which time three payments remained to be made. Chappell left D.F.A. in December 1985.
On July 31, 1986, Chappell filed a two-count complaint in the Houston County Circuit Court; Count One sought dissolution of the D.F.A. partnership. Chappell modified her complaint on May 8, 1987, adding a third count, alleging failure by Deloney to pay the promissory note, and seeking appropriate damages. The case was presented ore tenus on July 7 and August 11, 1989, and a judgment was issued in Chappell's favor on Counts One and Three[1] on November 3, 1989. The judgment read as follows:
Deloney appeals, arguing: 1) that the judgment declaring the dissolution of D.F.A. was legally insufficient, and 2) that the judgment on the promissory note, the dissolution of D.F.A., and the distribution of D.F.A. assets was palpably wrong, manifestly unjust, and not supported by credible evidence.
In support of his contention that the dissolution judgment was legally insufficient, Deloney cites Dutton v. LeMaster, 437 So. 2d 1245 (Ala.1983). In Dutton this Court held:
437 So. 2d at 1247, citing Briley v. Briley, 51 Ala.App. 671, 288 So. 2d 733 (1974). Deloney argues that the judgment of the trial court was legally insufficient, because, he says, it did not determine a date of dissolution, did not order a marshalling of the assets and payment of creditors, and did not determine each partner's interest in the property of the partnership.
*624 It was undisputed that Chappell left the partnership in December 1985. For accounting purposes, the partnership was deemed dissolved as of December 31, 1985. This date of dissolution was never challenged below. All of the testimony supported a dissolution as of this date, and there was simply no issue for the trial judge to determine regarding the date of dissolution. Additionally, Deloney never presented this issue to the trial judge for determination, if he disputed the date of dissolution. A trial court will not be put in error on issues not presented to it.
Deloney argues that it was not ordered that the assets of this partnership be "marshalled" following dissolution. In this instance, there was no necessity for the marshalling of assets. The only assets of the partnership were commissions earned prior to dissolution, but received after dissolution. Deloney received these funds in cash payments from the investors as they fell due. These funds were partnership assets and all of the assets were cash funds. Deloney had possession of all of the cash funds received, and Chappell is entitled to receive one-half of the commissions collected. There were no other assets to marshall. Thus, there was nothing for the court to order sold and converted to cash. The evidence supports the court's finding that Deloney had, in fact, received these funds and did owe a portion of them to Chappell. Consequently, Chappell was entitled to a money judgment against Deloney, because he had received funds that rightfully belonged to her.
Any contingent liabilities of D.F.A. would be borne equally by the parties after the dissolution, if such contingent liabilities were to be liquidated after dissolution. Dutton's requirements were met by the trial court under the facts of this case.
As to the trial court's actual findings of fact, Deloney argues that they are incorrect. Specifically, he argues that the court's judgment on the promissory note declaring a dissolution of D.F.A. and distribution of D.F.A. assets was based on a finding of fact that was palpably wrong, manifestly unjust, and unsupported by credible evidence. The standard of review applicable to judgments based upon evidence and testimony presented ore tenus is well established and quite rigorous. As this Court recently stated in Humphries v. Whitely, 565 So. 2d 96 (Ala.1990):
565 So. 2d at 102.
The bulk of the factual testimony concerning the accounting of the partnership was provided by the accountants for both Deloney and Chappell. Deloney suggests that the trial court disregarded the testimony of Chappell's accountant (and therefore accepted the testimony of Deloney's accountant) arguing that Chappell's accountant did not properly balance the capital accounts of Deloney and Chappell before drawing any conclusions as to amounts owed to Deloney and Chappell after dissolution of D.F.A. Deloney then argues that the trial court misconstrued his accountant's testimony concerning those items included in the calculations used in determining Deloney's and Chappell's interests in *625 D.F.A. upon dissolution;[2] and that this mistake on the trial court's part led to Chappell's receiving a double recovery for the monies associated with the "Cross Roads Villas" promissory note.
It may very well be true that the trial court disregarded the testimony of Chappell's accountant, but the record does not specifically indicate this to be the case. This Court will not attempt to assume or hypothesize as to how the trial court dealt with the testimony of Chappell's accountant.
As to the contention that the trial court misconstrued the testimony of Deloney's expert, we note that there was testimony to support the trial court's findings. Testimony given by Deloney, as well as testimony by Chappell, would support the contention that the note was made before D.F.A. was formed, that Deloney had made the required payments on the note, and that he had ceased payments on the note when Chappell left D.F.A. As noted earlier, findings of fact based on ore tenus evidence are presumed correct even though there may have been conflicting evidence. Humphries and Kershaw, supra. Reasonable minds could differ concerning whether the note was or should be a liability of D.F.A. The trial court's finding is based on a reasonable inference drawn from the evidence. Kershaw, supra. Thus, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] Count Two of Chappell's complaint was tried before a jury, which rendered a verdict for Deloney. The jury verdict on Count Two is not involved in this appeal.
[2] Deloney's expert, William Carr, included the Deloney/Chappell note as a liability of D.F.A. | September 14, 1990 |
b626d1eb-f47d-494a-8e78-9c2f4879ddfb | Perlman v. Shurett | 567 So. 2d 1296 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1296 (1990)
M.J. PERLMAN and Ben F. Perlman
v.
T.G. SHURETT.
89-416.
Supreme Court of Alabama.
September 7, 1990.
*1297 Eddie Leitman and S. Lynne Stephens of Leitman, Siegal, Payne & Campbell, Birmingham, for appellants.
Barry A. Ragsdale of Sirote & Permutt, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment granted in favor of defendant T.G. Shurett in an action filed by M.J. Perlman and Ben N. Perlman (hereinafter referred to together as "Perlman") against Warrior-Hinckle, Inc., for damages based on an alleged breach of a lease agreement and against Shurett for damages based on an alleged tortious interference with the lease contract. The judge entered a summary judgment for Shurett and made that judgment final pursuant to Rule 54(b), A.R. Civ.P. Perlman appeals. We affirm.
In 1984, Warrior-Hinckle entered into an agreement with Perlman to lease a building from him for a period of three years at a monthly rental payment of $3,675. Pursuant to the lease, Perlman was given a lien on all goods located on the premises. In 1985, Warrior-Hinckle defaulted on the lease and vacated the lease premises. Shurett, who was then the president of Warrior-Hinckle, ordered the removal of the inventory from the building and, once removed, the inventory was placed in storage at L & S Roofing Supply Company. Perlman sued Warrior-Hinckle for breach of the lease agreement and sued Shurett for tortious interference with business or contractual relations.
We have held:
"Gram, 384 Mass. at 663-64, 429 N.E.2d at 24.
"The Supreme Court of Oregon in Wampler v. Palmerton, 250 Or. 65, 76-77, 439 P.2d 601 (1968), stated:
"Therefore, the trial court was correct when it held that defendants ..., were not liable as agents of the Hospital Board.
George A. Fuller Co. v. Chicago Col. of Ost. Med., 719 F.2d 1326, 1333 (7th Cir. 1983) (Emphasis in original).
Hickman v. Winston County Hospital Board, 508 So. 2d 237, 239-40 (Ala.1987). It was noted in a special concurrence in that case:
Hickman, supra, at 241 (Adams, J., concurring specially). In the case at bar, Perlman has failed to offer any evidence whatsoever that Shurett's order to remove the inventory from the building was done maliciously. In an attempt to show malice, Perlman states in his brief:
In and of itself, this statement does not show that Shurett was acting outside the scope of his employment and with malice. The fact that L & S Roofing was owned by Shurett's son-in-law is not an indication that the move was made for personal gain. In fact, so far as the record indicates, the goods are still stored at L & S Roofing and have not been sold for the benefit of anyone. One incident is not sufficient to "make a strong showing of a pattern of interference." Hickman, supra, at 241 (Adams, J., concurring specially). Perlman has failed to make a prima facie case of tortious interference with contractual relations. Therefore, the judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | September 7, 1990 |
ab3c28d1-51ac-48f9-bb8d-f09e1c483487 | South Cent. Bell Telephone Co. v. Branum | 568 So. 2d 795 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 795 (1990)
SOUTH CENTRAL BELL TELEPHONE COMPANY
v.
Marjorie BRANUM.
88-1169.
Supreme Court of Alabama.
September 21, 1990.
Harold F. Herring and John O. Cates of Sadler, Sullivan, Herring & Sharp, Huntsville, and Wiltshire M. Booker, Jr. and J. Mark White of White, Dunn & Booker, and D. Owen Blake, Jr., Birmingham, for appellant.
Danny D. Henderson and Donald N. Spurrier of Spurrier, Rice & Henderson, Huntsville, for appellee.
PER CURIAM.
While crossing a street in Huntsville, Alabama, Marjorie Branum was struck by a South Central Bell Telephone Company work van. Because of injuries she sustained, she filed an action against South Central Bell and Billy J. Davis, Jr., the driver of the van, alleging negligence and wantonness. She also claimed that South Central Bell had negligently entrusted the van to Davis. It is not disputed that Davis was acting within the line and scope of his employment at the time of the accident. Both defendants denied the claims, and South Central Bell alleged that Ms. Branum had been contributorily negligent in regard to the accident. Ms. Branum dismissed her claims against Davis and dismissed the negligent entrustment claim against South Central Bell. At the close of the evidence for Ms. Branum, South Central Bell moved for a directed verdict on the negligence and wantonness claims. The motion was denied. South Central Bell renewed the motion at the close of all the evidence, and it was again denied. The jury returned a general verdict for Ms. Branum in the amount of $500,000 in "past damages" and $250,000 in "future damages" and the trial court entered judgment thereon. South Central Bell filed a motion for a judgment notwithstanding the verdict, *796 or, alternatively, for a new trial. That motion was denied.
On appeal, South Central Bell argues that the trial court erred in submitting the wantonness and negligence claims to the jury. Because we hold that there was not sufficient evidence to support a finding that Davis's actions were wanton, and because the jury returned a general verdict for Ms. Branum, we reverse the judgment of the trial court and remand this cause for a new trial. Thus, we will not discuss the other issues raised by South Central Bell.
This action was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12; Koch v. State Farm Fire & Casualty Co., 565 So. 2d 226 (Ala.1990); Robichaux v. AFBIC Development Co., 551 So. 2d 1017 (Ala.1989). In actions filed after June 11, 1987, a directed verdict for the defendant is proper when the plaintiff has failed to present "substantial evidence" as to each element of her cause of action. Koch v. State Farm Fire & Casualty Co., supra.
Viewed in a light most favorable to Ms. Branum, the facts are as follows:
At approximately 1:30 p.m. on a clear, dry day, Ms. Branum departed Huntsville Hospital by the main exit, which is in the middle of the block on the east side of Gallatin Street, a two-way, four-lane thoroughfare that runs north and south. The hospital is bordered on the south side by Governor's Drive and on the north side by Sivley Road. One block north of Sivley Road, Gallatin Street is intersected by St. Clair Avenue. As Gallatin Street proceeds south through Sivley Road, it veers slightly to the west. After reaching the curb on Gallatin Street, Ms. Branum looked south and observed that there was no approaching traffic. Looking north, she observed that the traffic light at the intersection of Gallatin Street and Sivley Road was red. As to where she saw the van, Ms. Branum's testimony is somewhat unclear. Ms. Branum testified that, at that time, she saw the South Central Bell van and an automobile stopped at "the" red light. Both were headed south on Gallatin Street, the van in the far right lane, and the car in the left lane. At one point, she testified that as she stepped off the curb onto Gallatin Street the van and the car were stopped at the red light at Gallatin Street and Sivley Road, and that she did not see the van and the car again until she turned at the sound of squealing tires as Davis applied the brakes.[1] She later testified that as she was crossing the street she saw the van and the car proceeding down Gallatin Street through the intersection at Sivley Road, that the van and the car were "zigzagging," and that the van was "trying to keep from hitting" the car. At any event, she testified that she had walked west across Gallatin Street and that she was approximately two steps from the west curb of Gallatin Street when the South Central Bell van hit her.
Davis testified that he and the driver of a car stopped at the traffic light on Gallatin Street at St. Clair Avenue, one block north of Sivley Road. He said that when the light turned green both drivers proceeded south through that green light and then through a green light at Gallatin Street and Sivley Road, at 30 to 35 miles per hour. The speed limit on Gallatin Street was 35 m.p.h. His testimony concerning his speed was corroborated by other witnesses and was not disputed by Ms. Branum. Davis testified that as he proceeded south on Gallatin Street he was looking straight ahead but did not see Ms. Branum. He stated that as he and the driver of the adjacent car passed through the slight westerly curve at the intersection of Sivley Road his attention was diverted by the car, which he said drifted toward his lane and continued on that path. He removed his foot from the accelerator, he said, and drifted to the right to avoid a collision. At this point, the car was about a half car length ahead of him. Davis testified that *797 when he was able to do so he looked up, and that when he did he saw Ms. Branum for the first time. He said he applied the brakes about 15 or 20 feet before his van struck her. When asked whether he had ever seen pedestrians cross Gallatin Street in the middle of the block, Davis replied that in the downtown area people commonly crossed the street in such a manner.
Ralph Hatcher, an automobile accident reconstructionist, testified that the point of impact was on Gallatin Street, 156 feet south of the intersection at Sivley Road, that a car moving at 30 miles per hour travels 43.98 feet per second,[2] and that the van skidded 15 feet before it hit Ms. Branum.
What constitutes wanton misconduct depends on the facts presented in each particular case. Central Alabama Electric Coop. v. Tapley, 546 So. 2d 371 (Ala.1989); Brown v. Turner, 497 So. 2d 1119 (Ala. 1986); Trahan v. Cook, 288 Ala. 704, 265 So. 2d 125 (1972). A majority of this Court, in Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987), emphasized that wantonness, which requires some degree of consciousness on the part of the defendant that injury is likely to result from his act or omission, is not to be confused with negligence (i.e., mere inadvertence):
510 So. 2d at 145-46. See also Central Alabama Electric Coop. v. Tapley, supra.
South Central Bell argues that the only conceivable "act" of wantonness would be Davis's failure to see Ms. Branum until immediately before impact and that this failure was not a wanton omission because his attention was diverted by the movements of the car in the left lane that was crowding his path. Conversely, Ms. Branum argues that the evidence adduced at trial-evidence of the clear view that Davis had looking south on Gallatin Road, the distance between the intersection at Sivley Road and the point of impact, and Davis's testimony concerning the car's encroaching from the left lane-was substantial evidence that Davis failed to watch where he was going while he was travelling a distance of approximately 150-160 feet south of the Sivley Road intersection. Such a failure, *798 she argues, made with knowledge of the habits of pedestrians in the downtown area, constitutes wanton conduct.
Ms. Branum contends that the facts in this case are analogous to the facts in Bishop v. Poore, 475 So. 2d 486 (Ala.1985). In that case, the defendant, after stopping at a stop sign at the exit from a parking lot, drove across two northbound lanes of traffic to enter the southbound land of traffic. The plaintiff was driving north on a motorcycle, and the vehicles collided, causing injury to the plaintiff and damage to his motorcycle. A majority of this Court held that there was a scintilla of evidence that permitted an inference that the defendant had failed to look in the direction of the plaintiff, and that that failure could be regarded as reckless indifference to the knowledge that such an omission could likely result in injury to another. Bishop v. Poore, supra.
We find that the facts of this case more closely resemble those in Ellison v. Forsythe, 541 So. 2d 492 (Ala.1989), in which the injured plaintiff was a passenger in an automobile that was struck from behind while travelling down a four-lane road. In that case, the plaintiff offered no evidence that the defendant acted wantonly. The defendant stated in an affidavit that he was driving within the speed limit and that his attention was diverted by an automobile that had pulled up beside him and was crowding his path. He said that when he returned his attention to the road ahead of him, the automobile in which the plaintiff was a passenger had pulled into his lane and suddenly decelerated. He stated that he applied his brakes but was unable to avoid the collision. This Court affirmed the summary judgment in favor of the defendant.
Davis testified that as he passed through the slight curve at the intersection at Sivley Road his attention was diverted by the adjacent automobile, which began to crowd his path and continued to do so after they had passed through the intersection. He testified that he decelerated and drifted to the right to avoid colliding with the encroaching car. Davis testified that, after drifting to the right, he looked up, seeing Ms. Branum for the first time. He said he immediately applied the brakes but could not avoid hitting her. Ms. Branum's testimony corroborates his testimony. She said that before the impact she saw the van zigzag as if its driver was trying to avoid a collision with the car. We hold that these facts did not constitute sufficient proof that Davis, on that occurrence, acted wantonly. Therefore, the trial court erred in not granting the defendant's motion for a directed verdict on the wantonness claim. We further hold, however, that the trial judge did not err in submitting the claim of negligence to the jury.
In this case, the jury returned the following verdict:
Because the wantonness claim was not supported by the evidence and therefore should not have been submitted to the jury, that claim was a "bad count."
In Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981), we addressed the effect of a general verdict when a case contains both a "good count" (i.e., one supported by the evidence) and a "bad count" and the defendant, in his motion for directed verdict, has failed to challenge the bad count with specificity:
It follows that if the party moving for directed verdict follows this procedure and yet good counts and bad counts go to the jury and the jury returns a general verdict, this Court cannot presume that the verdict *799 was returned on a good count. National Security Fire & Casualty Co. v. Vintson, 454 So. 2d 942 (Ala.1984). A review of the record convinces us that the motion for directed verdict, and the specificity of the ground assigned, met the requirements of the two-pronged test enunciated in Aspinwall. See Lawrence v. Lackey, 451 So. 2d 278 (Ala.1984). Thus, we cannot presume that the general verdict was based on the count that was supported by the evidence, i.e., the negligence count. National Security Fire & Casualty Co. v. Vintson, supra. Likewise, we cannot presume that the entire award is composed of compensatory damages. See Charter Hospital of Mobile, Inc. v. Weinberg, 558 So. 2d 909 (Ala. 1990).
Based on the foregoing, the judgment is hereby reversed and the cause is remanded for a new trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] It is unclear from her testimony whether she heard the squeal of the tires of both the van and the car or of just the van.
[2] Our own calculations would indicate 44 feet per second. | September 21, 1990 |
aa68eb89-1503-4000-a126-83da4b0c8b16 | Dill v. Blakeney | 568 So. 2d 774 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 774 (1990)
John C. DILL
v.
Billy BLAKENEY, d/b/a Blakeney Construction Company.
89-28.
Supreme Court of Alabama.
September 14, 1990.
*775 William J. Donald III of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellant.
Ralph I. Knowles, Jr. of Drake, Knowles & Pierce, Tuscaloosa, for appellee.
KENNEDY, Justice.
The defendant, John C. Dill, appeals from a summary judgment entered in favor of the plaintiff, Billy Blakeney, d/b/a Blakeney Construction Company.
Dill Company, Inc., a plumbing contractor, purchased its materials on open account from Central Supply Company, Inc. The terms of the account provided that Dill Company would pay Central Supply interest at 1½% per month on any unpaid balance and reasonable attorney fees incurred in the collection of any unpaid balance. On December 29, 1986, Dill Company owed Central Supply a balance of $102,804.29, and, at Central Supply's request, John C. Dill, president of Dill Company, executed a guaranty agreement with Central Supply, wherein he wrote:
Earlier in 1986, Blakeney had contracted with the State of Alabama to perform a construction project at Partlow State School and Hospital; Blakeney was to provide all the materials for that contract. Blakeney subcontracted with Dill Company to provide plumbing materials and to install the plumbing system. Dill Company purchased the materials it used in the Partlow project on its account with Central Supply. Blakeney paid Dill Company a total of $62,481.41 for the materials used in installing the plumbing system. Money paid by Blakeney to Dill Company for materials purchased from Central Supply was to be paid to Central Supply in satisfaction of Dill Company's debts incurred in regard to the Partlow project. Instead, Dill Company applied the payments to its longest outstanding bills on its open account. Pursuant to his obligations under Ala.Code 1975, § 39-1-1, Blakeney paid Central Supply the $62,481.41 in November 1987. In return, Central Supply executed the following agreement:
In December 1987, Central Supply sued Dill on his personal guaranty to collect the remaining balance owed it on the Dill Company account, $56,894.73, plus attorney fees and costs. In June 1988, Blakeney filed an action against Dill; counts one, two, and three alleged fraud; count four demanded that Dill pay $62,481.41, plus costs, on the personal guaranty. In January 1989, the trial court entered a consent judgment in favor of Central Supply and against Dill, in the amount of $60,000 plus costs if paid on or before May 8, 1989, or $75,000 plus costs if paid thereafter.[1] In the action brought by Blakeney, the parties settled as to the fraud claims, and the trial court granted Blakeney's motion for summary judgment on count four, awarding him the principal amount of $62,481.41, $15,899.37 in interest, and $11,757 in attorney fees. This appeal followed.
Dill first argues that a partial assignee to the rights of the assignor must join with the assignor to enforce the assignee's rights and that Blakeney's failure to intervene in Central Supply's action against Dill *776 bars Blakeney from relief because of the doctrine of res judicata, the rule against splitting a cause of action, and the principles of bar and/or merger.
Dill relies chiefly on Kansas City, Memphis & Birmingham R.R. v. Robertson, 109 Ala. 296, 19 So. 432 (1895), in which an employer owed an employee for 21½ days of work and the employee assigned part of that right to Robertson. There was no evidence that the employer consented to the assignment. This Court wrote:
109 Ala. at 298-99, 19 So. at 433.
Dill also relies on O'Barr v. Turner, 16 Ala.App. 65, 75 So. 271 (1917), in which the Court of Appeals discussed the rule against splitting a single cause of action, where part of a right has been assigned:
16 Ala.App. at 68, 75 So. at 274.
Blakeney relies on In re Fine Paper Litigation State of Washington, 632 F.2d 1081 (3d Cir.1980). In that antitrust action, a certified class of plaintiffs, which had agreed to a settlement with the defendants, executed an assignment of some of its antitrust claims to the State of Washington, which represented a class of plaintiffs denied certification. Washington attempted to opt out of the settlement agreement and to pursue its claims separately; the settling defendants objected on the ground that the assignments were invalid attempts to split a cause of action. The Court of Appeals, in holding that the partial assignment did not improperly fragment the claims, stated:
632 F.2d at 1090-91. Moreover, where the obligor has notice of an assignment, he may require joinder of the assignor and the assignee. Comment c, Restatement (Second) of Contracts § 326 (1981), states:
See also Rules 19 and 22, A.R.Civ.P.
We hold that the rule stated In re Fine Paper Litigation, supra, and in the Restatement (Second) of Contracts, applies when the obligor has notice of the partial assignment. We feel that this is the sounder approach, given the defendant's ability to join parties pursuant to Rules 19 and 22, A.R.Civ.P. In this case, Blakeney filed his action against Dill in June 1988, six months before the trial court entered a consent judgment in the action between Central Supply and Dill. Thus, Dill had notice of the partial assignment before final judgment was entered in the action concerning Central Supply, the assignor. In order to protect himself from defending successive suits or from double liability, Dill could have joined Central Supply and Blakeney in the first action. Because Dill had the opportunity to do so and did not, Blakeney's subsequent action against Dill is not barred by Central Supply's previous action.
Dill next contends that a fact question existed as to the extent of his liability under the guaranty agreement and that, therefore, the trial court erred in entering summary judgment for Blakeney. He maintains that the trial court must have concluded, as a matter of law, that the guaranty agreement obligated Dill to pay all sums payable on Dill Company's general account with Central Supply and that the amount stated in the agreement, $102,804.29, did not limit the amount payable to Central Supply and Blakeney. He argues that the guaranty agreement is ambiguous and that the determination of its meaning should be left to the jury.
It is generally recognized that the rules governing the construction and interpretation of contracts are applicable in interpreting or construing a guaranty contract. Colonial Bank of Alabama v. Coker, 482 So. 2d 286 (Ala. 1985). In Alabama, when the terms of a contract are unambiguous, the construction of the contract and its legal effect become questions of law for the court, and when appropriate, may be *778 decided by summary judgment. Colonial Bank of Alabama v. Coker, supra; Jehle-Slauson Construction Co. v. Hood-Rich, Architects & Consulting Engineers, 435 So. 2d 716 (Ala.1983). However, when the terms of a contract are ambiguous in any respect, the determination of the true meaning of the contract is a question of fact for the jury. Colonial Bank of Alabama v. Coker, supra; Hall v. Integon Life Ins. Co., 454 So. 2d 1338 (Ala.1984). Whether a contract is ambiguous is a question of law for the court. Colonial Bank of Alabama v. Coker, supra. When the language in a guaranty contract is ambiguous and is susceptible of more than one meaning, it should be construed more strongly against the obligor. National Surety Co. v. Julian, 227 Ala. 472, 150 So. 474 (1933); Sales Corp. v. United States Fidelity & Guaranty Co., 215 Ala. 198, 110 So. 277 (1926).
We find that the language in the guaranty contract is ambiguous as to whether Dill's payment is limited to $102,804.29 and that it is susceptible of more than one interpretation. Thus, the determination of the true meaning of the contract is a question of fact for the jury.
Dill also contends that Blakeney was not entitled, as a matter of law, to recover attorney fees. He argues, first, that the personal guaranty given by Dill to Central Supply did not obligate him to pay attorney fees, and, second, that it is a fact question whether the assignment agreement granting Blakeney the right to proceed against Dill personally provides for attorney fees.
The agreement between Dill Company and Central Supply that enabled Dill Company to purchase supplies on credit provided that Dill Company would pay Central Supply's reasonable attorney fees incurred in the collection of any unpaid balance. Dill's personal guaranty provided that he would guarantee "payment on the Dill Company account." We determine that the personal guaranty is ambiguous as to whether it obligated Dill to pay attorney fees; therefore, it is a question of fact to be determined by the jury.
Dill also argues that the rights assigned to Blakeney by Central Supply did not, as a matter of law, include the right to recover attorney fees.
6A C.J.S. Assignments § 72 (1975).
The assignment agreement states, in pertinent part:
Applying the rules of construction governing contracts, we find that the assignment agreement is ambiguous as to whether it grants Blakeney the right to proceed against Dill personally to recover attorney fees. Therefore, if the jury first determines that the personal guaranty obligated Dill to pay attorney fees, then the determination of this issue is a fact question for the jury.
Having found that the summary judgment entered in favor of Blakeney was inappropriate, we pretermit discussion of the issue concerning the proper interest rate to be applied in this case.
This judgment is reversed and the cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] Dill states in his brief that he paid Central Supply on or before May 8, 1989; however, the record indicates that the judgment was paid on May 9, 1989. | September 14, 1990 |
ee460605-756d-4bba-9468-5fef479f10d6 | Ex Parte Dinkins | 567 So. 2d 1313 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1313 (1990)
Ex parte Elbert James DINKINS.
(Re Elbert James Dinkins v. State).
89-455.
Supreme Court of Alabama.
September 7, 1990.
Margaret Y. Brown, Auburn, for petitioner.
Don Siegelman, Atty. Gen., and Robert E. Lusk, Jr., Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Elbert Dinkins appealed his conviction for possession of marijuana in the first degree. The Court of Criminal Appeals affirmed. 555 So. 2d 1198. We granted certiorari review, and we now affirm.
The issue is whether the trial judge erred in refusing Dinkins's challenge of a prospective juror for cause. During voir dire of the venire, a venireman told the judge *1314 that he knew Dinkins from when he (the venireman) had taught school.
Dinkins, appearing pro se, challenged for cause, and the judge denied the challenge. As the venireman was leaving the bench, he stated to Dinkins, "If you had listened to me in school, you wouldn't be here today." Dinkins called the court's attention to the statement, and the judge questioned the venireman about the statement. This questioning consisted of asking him if he could render a fair verdict based upon the evidence. The venireman replied that he could, and the judge denied the challenge again. The defendant used a peremptory challenge to strike the venireman.
The qualification of a juror is a matter within the discretion of the trial court. Clark v. State, 443 So. 2d 1287, 1288 (Ala.Cr.App.1983). The trial judge is in the best position to hear a prospective juror and to observe his or her demeanor. A trial judge's rulings on a juror's qualification are entitled to great weight on appeal and will not be disturbed unless clearly shown to be an abuse of discretion. Clark, at 1288. Here, the trial judge questioned the venireman, both before and after he had made the statement to Dinkins. At neither time did the venireman indicate that he could not render a verdict based upon the evidence. The trial judge was in the best position to observe the juror and his manner and to weigh his answers. There is no evidence that the trial judge abused his discretion. The judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES and SHORES, JJ. concur.
HOUSTON, J., concurs in the result. | September 7, 1990 |
d42f065e-71fe-432e-8514-3a12dd8e71a2 | Anderson v. Moore Coal Co., Inc. | 567 So. 2d 1314 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1314 (1990)
L.V. ANDERSON, et al.
v.
MOORE COAL COMPANY, INC., and Birmingham Southern Railroad.
MOORE COAL COMPANY, INC.
v.
L.V. ANDERSON, et al.
87-1413, 87-1543.
Supreme Court of Alabama.
September 14, 1990.
*1315 Stephen L. Poer of Haskell, Slaughter & Young, Birmingham, for appellants/cross-appellees L.V. Anderson, et al.
V. Edward Freeman II and James B. Kierce, Jr., of Stone, Patton, Kierce & Freeman, Bessemer, for appellee/cross-appellant Moore Coal Co., Inc.
T. Thomas Cottingham, F.A. Flowers III, and William S. Hereford of Burr & Forman, Birmingham, for appellee Birmingham Southern R. Co.
PER CURIAM.
L.V. Anderson and approximately 75 other residents (collectively referred to hereinafter as "Anderson") of Bessemer Gardens, a Hueytown subdivision, filed an action against Moore Coal Company, Inc. ("Moore"), Birmingham Southern Railroad Company ("BSRR"), and other defendants, alleging that Moore and BSRR had caused Bessemer Gardens to flood, both by negligently or wantonly altering the railroad bed on property adjacent to Bessemer Gardens, thus destroying an embankment that prevented the subdivision from flooding, and by violating the Jefferson County Flood Plain Ordinance ("Flood Ordinance"), which the plaintiffs allege would have prevented the flooding, had Moore and BSRR complied with it. The trial court entered summary judgment on the plaintiffs' claim concerning the Flood Plain Ordinance and submitted to the jury only the claim for negligence in the alteration of the railroad bed. The jury returned a verdict for both Moore and BSRR, and the trial court entered judgment on the verdict.
Beginning in 1939, BSRR had operated trains on a section of railroad track that it owned in Jefferson County known as the Dolonah Branch. A segment of the Dolonah Branch ran adjacent to Bessemer Gardens. The track was built on an embankment that separated a stream known as Valley Creek from Bessemer Gardens.
In 1979, BSRR stopped doing business with the Dolonah Quarry, which the Dolonah Branch serviced. In 1981, after receiving the permission of the Interstate Commerce Commission, BSRR abandoned the Dolonah Branch. BSRR contracted with *1316 Moore for Moore to reclaim the railroad tracks and "related appurtenances."
Beginning in November 1981 and concluding in May 1982, Moore removed railroad tracks, ties, and ballast (loose gravel and slag) from the Dolonah Branch. While Moore was doing this work, some of the plaintiffs complained to Moore. Lanell Guyton testified that she told Jim Moore, president of Moore, "You're lowering the railroad bed ... [and] when we have another high water it's going to come over that railroad bed, Jim." Moore stopped removing the ballast from behind Guyton's house, but it continued to remove the ballast at other points on the track. James Ray Perkins testified that he once confronted Jim Moore in a restaurant and told him that changing the railroad bed would "flood us out." He said that Mr. Moore responded by mentioning Guyton and saying "You all are just bitching and griping and a little bit of water's not going to hurt you anyway."
On December 2 and 3, 1983, within a 24-hour period, the Jefferson County area received 9.2 inches of rain, the greatest rainfall ever recorded for Jefferson County in a 24-hour period. The National Oceanic and Atmospheric Administration and the Federal Emergency Management Agency classified the rain as a 200-year rainfall event, which means that that heavy a rainfall should be expected to fall, in all probability, only once every 200 years.
Bessemer Gardens flooded during that rainfall. The record indicates that Bessemer Gardens is at a low point of a drainage basin and receives surface water drainage from 515 acres. The record also indicates that Bessemer Gardens had flooded in 1951, 1954, 1962, 1970, and 1979; furthermore, over the course of a quarter of a century, Jefferson County, the City of Bessemer, the developer of the subdivision, and the City of Hueytown had all attempted to alleviate the flooding problems, by measures as drastic as rerouting Valley Creek and installing a complex system of drainage ditches. The record indicates that on December 2-3, 1983, water was flooding into Bessemer Gardens from many locations, not just Valley Creek.
The plaintiffs filed their action in June 1984. They named Moore, BSRR, the City of Hueytown, and Jefferson County as defendants. They settled their claims with the City of Hueytown and Jefferson County before the case went to trial. They alleged that Moore and BSRR "removed tracks, ties and ballast from property located adjacent to the property occupied by the plaintiffs" and, in the process, "negligently or wantonly removed or destroyed a portion of a dike, which had prior thereto prevented flood waters from flowing onto the property occupied by the plaintiffs." The plaintiffs refer to the embankment that the railroad track is built upon as a "dike." In relation to that allegation, the plaintiffs averred that Moore and BSRR's alleged negligence or wantonness in destroying a portion of the "dike" caused their property to flood when Valley Creek flooded. They further alleged that Moore and BSRR had negligently failed to obtain the permits required by the Flood Ordinance and that Moore and BSRR performed their work in reclaiming the railroad track in a negligent or wanton manner.
The trial court granted Moore and BSRR's motion for summary judgment on the claim that they had negligently violated the Flood Ordinance. Additionally, at the close of all the evidence, the trial court directed a verdict for Moore and BSRR on the claim that they had wantonly removed the railroad tracks. The plaintiffs do not contest the judgment based on the jury verdict regarding the claim that the defendants had negligently altered the railroad bed.
The plaintiffs do contend that the trial court erred when it entered summary judgment for Moore and BSRR on the claim that they negligently violated the Flood Ordinance. In both Alabama Power Co. v. Dunaway, 502 So. 2d 726, 730 (Ala. 1987), and Fox v. Bartholf, 374 So. 2d 294 (Ala.1979), the Court addressed the requirements for imposing liability for negligence when a defendant violates a statute or administrative *1317 regulation. Those requirements are:
Dunaway, 502 So. 2d at 730. (Emphasis original.) Accordingly, to impose liability on Moore and BSRR for negligence for violating the Flood Ordinance, the plaintiffs must prove that Moore and BSRR's violation of that ordinance proximately caused the damage they suffered. 502 So. 2d at 730.
The record does not contain any evidence of any causal connection between the planitiffs' damage and Moore and BSRR's failure to obtain permits required by the Flood Ordinance. With regard to negligence, the plaintiffs presented, at most, evidence that Moore and BSRR had been negligent in the manner in which they dismantled the tracks, and the jury returned a verdict against the plaintiffs on that claim. The trial court did not err in entering the summary judgment, because the plaintiffs failed to prove that, even if Moore and BSRR had violated the statute, that violation proximately caused the plaintiffs' damage. Dunaway, at 730; Fox, at 296.
The plaintiffs also argue that the trial court erred by directing the verdict for Moore and BSRR on the wantonness claim. "`Wantonness' is defined by the Court as the conscious doing of some act or the omission of some duty while knowing of the existing conditions and being conscious that, from doing or omitting to do an act, injury will likely or probably result." McDougle v. Shaddrix, 534 So. 2d 228, 231 (Ala.1988); Burns v. Moore, 494 So. 2d 4, 5 (Ala.1986). As the Court stated in Bishop v. Poore, 475 So. 2d 486, 487 (Ala.1985), "`wantonness' is the doing of some act with reckless indifference to the knowledge that such act or omission will likely or probably result in injury." The plaintiffs contend that Jim Moore's actions involving plaintiffs Guyton and Perkins constitute sufficient evidence of wantonness to require the trial court to submit the claim of wantonness to the jury. Mr. Moore's statements do not indicate that he was aware that his work in dismantling the railroad track would likely or probably cause the plaintiffs injury or damage; indeed, even in the evidence that the plaintiffs rely on for this argument, Mr. Moore stated, in addressing the plaintiffs' complaints, "You all are just bitching and griping," which indicates that Mr. Moore did not know that his work in dismantling the tracks would likely or probably cause the plaintiffs injury or damage. The trial court did not err when it granted Moore and BSRR's motions for directed verdict on the wantonness claim.
Moore filed a cross-appeal, but all of its arguments on cross-appeal are grounds for affirming the judgment should the Court find reversible error in the issues raised by the plaintiffs.
The judgment is due to be affirmed.
87-1413 AFFIRMED.
87-1543 DISMISSED AS MOOT.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
HOUSTON, J., concurs in part, and concurs in the result in part.
HOUSTON, Justice (concurring in part, and concurring in the result in part).
I concur as to the negligence issue (the violation of the Flood Ordinance). I concur in the result as to the wantonness issue, for all the reasons expressed in my dissent *1318 in Lynn Strickland Sales & Service, Inc. v. Aero Lane Fabricators, Inc., 510 So. 2d 142, 147-51 (Ala.1987). | September 14, 1990 |
afa66632-d821-439b-b4e2-78e71e34e2c6 | Ex Parte Fowl River Protective Ass'n | 572 So. 2d 446 | N/A | Alabama | Alabama Supreme Court | 572 So. 2d 446 (1990)
Ex parte FOWL RIVER PROTECTIVE ASSOCIATION, INC., and South Alabama Seafood Association, Inc.
(Re Stanley GRAVES, et al. v. FOWL RIVER PROTECTIVE ASSOCIATION, INC., et al. and
FOWL RIVER PROTECTIVE ASSOCIATION, INC., et al. v. BOARD OF WATER AND SEWER COMMISSIONERS OF the CITY OF MOBILE.)
88-561.
Supreme Court of Alabama.
May 25, 1990.
As Modified on Denial of Rehearing September 21, 1990.
*448 Chase R. Laurendine, Mobile, for petitioner Fowl River Protective Ass'n, Inc.
John M. Tyson, Sr. and Charles S. Street, Mobile, for petitioner South Alabama Seafood Ass'n, Inc.
J.P. Courtney III of Lyons, Pipes & Cook, Mobile, for respondent Ala. Environmental Management Com'n.
Olivia H. Jenkins, Montgomery, for respondent Ala. Dept. of Environmental Management.
Joe H. Little, Jr. and J.M. Druhan of Wilkins, Druhan, Ollinger & Holtz, Mobile, for respondent Bd. of Water and Sewer Commissioners of City of Mobile.
Frank McRight of McRight, Jackson, Myrick & Moore, Mobile, for amicus curiae Mobile area Chamber of Commerce.
Jarred O. Taylor II of Maynard, Cooper, Frierson & Gale, Gen. Counsel, Birmingham, for amicus curiae Business Council of Alabama.
Steven G. McKinney and Christie C. Morgan of Balch & Bingham, Sp. Counsel, Birmingham, for amicus curiae Business Council of Alabama.
ADAMS, Justice.
Fowl River Protective Association, Inc. ("Fowl River"), and South Alabama Seafood Association, Inc. (we refer to both appellants as "Fowl River"), appeal from a Court of Civil Appeals judgment that favors the Alabama Environmental Management Commission ("Commission") and its chairman Stanley Graves, the Alabama Department of Environmental Management ("ADEM"), and the Board of Water and Sewer Commissioners of the City of Mobile ("Sewer Board"). Because we agree with Fowl River's arguments that the Court of Civil Appeals erred when it approved both the Commission's interpretation of Alabama's antidegradation policy and the Commission's application of the evidence contained in the record, we reverse the judgment and remand the cause. Fowl River makes additional arguments, which we do not address, because we resolve the case otherwise; by not addressing those arguments, we do not mean to imply that we necessarily agree with those rulings of the Court of Civil Appeals that we do not expressly reverse.
The Alabama Water Improvement Commission ("AWIC"), the predecessor state agency to ADEM, approved the issuance of a National Pollutant Discharge and Elimination System ("NPDES") permit to the Sewer Board. That permit allowed the Sewer Board to discharge up to 25 million gallons per day of treated industrial waste and sewage into the water approximately one and one-half miles from the western shore of Mobile Bay; the proposed location for the discharge is named Theodore Outfall. Fowl River filed an administrative appeal of the issuance of that permit, and AWIC appointed a hearing officer to conduct an administrative hearing. During the period when evidence was being presented to the hearing officer, the legislature created ADEM and the Commission, Ala.Code 1975, § 22-22A-1 et seq., which *449 replaced AWIC. The hearing officer presented his opinion with recommendations to the Commission. The Commission adopted the hearing officer's opinion, which approved the issuance of the permit with some modifications. The modifications reduced the permit allowance for fecal coliform bacteria and reduced by 10 percent the permit allowance for total suspended solids, total phosphorous, total iron, total aluminum, and total dissolved solids.
Fowl River appealed this decision to the Circuit Court of Mobile County. That court reversed the Commission's decision and remanded the case for further study; the court found that before ADEM issued the permit it had failed to investigate properly and to account for the effects of a phenomenon called "stratification" that occurs in the water of Mobile Bay. The trial court did not find that ADEM's interpretation of the state antidegradation policy was improper, however. ADEM, the Commission, and the Sewer Board appealed, and Fowl River cross-appealed. The Court of Civil Appeals reversed the trial court's holding that remanded the case to the Commission, Graves v. Fowl River Protective Ass'n, 572 So. 2d 441 (Ala.Civ.App. 1988); that court held that the Commission's interpretation of Alabama's antidegradation policy was proper. Id.
In this appeal, we address two questions that Fowl River raises:
The antidegradation policy is a policy promulgated by ADEM pursuant to federal statutes and regulations. That policy is stated in ADEM Admin.Code R. 335-6-10, and, according to its own terms, serves to protect, maintain, and improve the quality of the water of the state by preventing and controlling water pollution. ADEM implements that policy by using water quality standards, which provide specific scientific and technical criteria for evaluating water cleanliness. See ADEM Admin.Code R. 335-6-10, § 6.
Water quality standards are established by the water's "water use classification"; in other words, water quality standards are determined by what the water is used for. In Alabama, the water use classifications are public water supply, swimming and other whole body water-contact sports, shellfish harvesting, fish and wildlife, agricultural and industrial water supply, industrial operations, and navigation. ADEM Admin.Code R. 335-6-11-.01. Public water supply is the "highest" water use classification, the classification with the most stringent restrictions on pollution; that is, water that is to be used by the public must be cleaner than water that might be used for shellfish harvesting, fish and wildlife, etc. ADEM Admin.Code R. 335-6-10, § 6. ADEM rates the uses and quality of the bodies of water within the state, and ADEM has not imposed on any water in Alabama a higher rating than that imposed on water classified as "public water supply." ADEM Admin.Code R. 335-6-11-.02.
The federal and state statutory and regulatory framework that creates the antidegradation policy also prescribes the responsibility for issuing NPDES permits, like the permit that is involved in this action. ADEM must comply with the antidegradation policy when it issues NPDES permits and, thus, to understand fully how the antidegradation policy applies to this case one must understand the statutes and regulations concerned with the issuance of the NPDES permits. The statutory authority to issue NPDES permits comes from the federal Clean Water Act, 33 U.S.C.A. §§ 1251, 1342 (1986). The United States Congress directed the Environmental Protection Agency ("EPA") to administer the *450 NPDES program initially, 33 U.S.C.A. §§ 1251(d), 1342(a) (1986), and Congress gave the states the right to apply to EPA for permission to administer the NPDES program for the waters within the state. 33 U.S.C.A. § 1342(b) (1986). EPA determines whether a state is allowed to administer the NPDES program, 33 U.S.C.A. § 1342, but Congress requires that each state have sufficient enabling statutes and regulations to be able to implement and comply with the provisions of the federal statutes and regulations, 33 U.S.C.A. § 1342(b) (1986). Also, EPA has promulgated regulations that include specific provisions that are mandatory for any state that administers its own NPDES program, see e.g., 40 C.F.R. 122.4, 124.11. The national antidegradation policy, by its own terms, is such a mandatory provision and is found at 40 C.F.R. 131.12; we will discuss that provision further at a later point.
EPA authorized AWIC and now authorizes ADEM to administer the NPDES program in Alabama. ADEM agreed to comply with the requirements of the Clean Water Act and all applicable EPA regulations, and ADEM, in its brief, acknowledges that it is bound by federal statutes and EPA regulations. Accordingly, when ADEM issues an NPDES permit, it must do so in accordance with the provisions of the relevant federal statutes and those portions of the EPA regulations that are mandatorily applicable to the state's administration of its own NPDES program.
EPA promulgated the national antidegradation policy to conserve, protect, maintain, and improve the waters of the nation by preventing and controlling water pollution, 40 C.F.R. 131.12, as the state antidegradation policy also serves to do. The national antidegradation policy uses water quality standards in a manner similar to the way Alabama uses them. The Clean Water Act allowed EPA to promulgate regulations setting forth water quality standards for states exercising NPDES permitting authority. Pursuant to that statutory authority, EPA adopted water quality standards applicable to the states in 40 C.F.R., Part 131. Part of that provision is 40 C.F.R. 131.12, the national antidegradation policy, which reads:
"§ 131.12 Antidegradation policy.
40 C.F.R. 131.12 (emphasis supplied). 40 C.F.R. 131.12(a)(1) unequivocally commands that existing instream water uses and the level of water quality necessary to maintain those uses be maintained and protected.
ADEM states in its brief that while "the language [of the state and national antidegradation *451 policies] may be different, the substance of the policies is the same." At least as to matters related to this appeal, we agree with ADEM that the state and federal antidegradation policies are substantially the same. The state antidegradation policy states, in pertinent part:
ADEM Admin.Code Chap. 6-10, pp. 10-3, 10-4.
In his report to the Commission, the hearing officer made this statement, which the Commission adopted, concerning Fowl River's administrative appeal of the issuance of the NPDES permit:
The hearing officer's report does not otherwise address whether the antidegradation policy applies to Mobile Bay or to what water the policy applies.
Citing the hearing officer's report, Fowl River states that the hearing officer and the Commission held that the antidegradation policy does not apply to Mobile Bay because the antidegradation policy does not apply to waters that are "not of a quality higher than that associated with the public *452 water supply water use classification" and Mobile Bay's water does not presently have a water quality higher than the public water supply use classification, nor has it ever had such a quality.
Fowl River states that Mobile Bay, like all coastal waters, will probably never have a water quality level higher than the public water supply use classification, because the Bay and all coastal waters contain salt, which makes the water unfit for drinking and public use. Accordingly, Fowl River argues, the Commission's holding, in effect, bars the antidegradation policy from applying to any coastal waters.
Furthermore, Fowl River points out, the water use classifications that ADEM uses are those established by its own regulations. The highest water use classification established in those regulations is public water supply; also ADEM, in its water use classifications, does not rate any body of water in Alabama as better than public water supply. Accordingly, Fowl River argues, the Commission's interpretation that the antidegradation policy does not apply to water that is not "higher" than the public water use classification means both by definition and in practical effect that there are no bodies of water within the state to which the antidegradation policy applies.
That is an improper interpretation of the antidegradation policy, Fowl River argues. The national policy and the state policy both require that ADEM protect the level of water quality necessary to maintain existing water uses. By making a ruling that, according to Fowl River, in effect interprets the antidegradation policy out of existence, the Commission has violated that policy, because such an interpretation of the policy cannot maintain and protect existing uses of the water.
ADEM contends that the hearing officer and the Commission did not hold that the entire antidegradation policy did not apply to Mobile Bay. ADEM states that to understand the hearing officer's report, one must distinguish between two types of water, as Alabama's antidegradation policy does: waters of a quality higher than that established by the water use classification and waters that fall within the water use classifications. ADEM argues that the hearing officer and the Commission held that the portion of the antidegradation policy that did not apply to Mobile Bay was the portion of the policy that relates to waters of a quality higher than the waters described in the water use classifications. In other words, ADEM contends that what the hearing officer and the Commission held was that the portion of the antidegradation policy that applies to waters that are cleaner than public water supply is the portion of the antidegradation policy that does not apply to Mobile Bay.
We reject this argument. Although the hearing officer and the Commission may have meant to hold exactly what ADEM argues, that is not what they actually held. The hearing officer's opinion, which the Commission adopted, unequivocally states that the antidegradation policy does not apply to Mobile Bay. ADEM seems to argue that the discussion of the Dawson case tempers the unequivocal statement that the antidegradation policy does not apply to Mobile Bay. The discussion of the Dawson case can be interpreted to mean at least two things. It could mean, as ADEM argues, that the Commission found that the portion of the antidegradation policy that applies to waters of a quality higher than public water use is the portion of the antidegradation policy that did not apply to Mobile Bay. On the other hand, when the hearing officer is explaining why he contends that the permit would not violate the antidegradation policy even if the policy applied, he makes specific references to shellfish harvesting and swimming water quality standards, which are, of course, water standards below public water use. Why would the hearing officer write of *453 those standards hypothetically applying, if, indeed, he meant that those standards did apply and that the only part of the antidegradation policy that did not apply was the part that applied to waters higher than public water use? Considering the import of this matter, we will not allow ADEM's after-asserted arguments to redeem a holding by the Commission that on its face and by reasonable interpretation excludes Mobile Bay from Alabama's antidegradation policy.
Even if we were to hold with ADEM on that point, we would still confront the holding of the hearing officer and the Commission that "the antidegradation policy is inapplicable to waters which were not of a quality higher than that associated with the public water supply water use classification." Neither the Court of Civil Appeals nor any of the appellees address this matter directly, even though Fowl River forcefully contends that this interpretation of the antidegradation policy is improper.
As we discussed earlier, public water supply is the highest water use classification. Accordingly, almost by definition, if the antidegradation policy applies only to waters with a quality higher than public water supply, then, pursuant to the Commission's holding, the antidegradation policy will not apply to any water in the state. Nevertheless, there might be water somewhere in the state that is cleaner than the standards established for public water supply. According to ADEM's own ratings of water use, however, there is no water in the state that is rated better than public water supply. Thus, under the Commission's holding, the antidegradation policy would not apply to any water in the state to which ADEM has currently assigned a water use classification. ADEM has assigned a water use classification to most of the state's waters. See, ADEM Admin. Code R. 335-6-11. Additionally, coastal waters, because of their salt content, do not meet even the requirements for public water supply, much less requirements for water that is cleaner than public water supply; the Commission's holding, accordingly, excludes coastal waters from the antidegradation policy at least until, at a practical level, either the waters no longer contain salt or the standards for public water supply are lowered below such waters.
As background for further analysis of this case, we now consider Dawson v. Alabama Department of Environmental Management, 529 So. 2d 1012, cert. denied, 529 So. 2d 1015 (Ala.1988), before addressing the remainder of ADEM's arguments.
In Dawson, ADEM issued a sewage discharge permit to Longcrier Builders and Development, Inc. That permit allowed Longcrier to discharge 80,000 gallons of sewage per day into Boggy Branch, a body of water located in Southern Baldwin County. Dawson appealed ADEM's issuance of the permit, and the hearing officer, the Commission, and the Circuit Court of Baldwin County upheld ADEM's action.
The Court of Civil Appeals affirmed the trial court's judgment. Pertinently to this case, the court stated:
529 So. 2d at 1015.
It is unclear whether that statement is a holding or is dictum. We denied Dawson's petition for writ of certiorari, with this explanation:
Remembering that ADEM acknowledges that the state and national antidegradation policies are substantially the same, we must evaluate the statement in Dawson in *454 light of the state and national antidegradation policies. The state policy pertinently provides:
ADEM Admin.Code R. 335-6-10. That statement, explaining the thrust of the antidegradation policy, is phrased more broadly than the national antidegradation policy, which provides some clarification and specific meaning to Alabama's antidegradation policy:
40 C.F.R. 131.12. (Emphasis supplied.)
A careful comparison of the statement in Dawson to the antidegradation policy reveals that they conflict. Dawson states that the antidegradation policy allows degradation of waters within a classification, but not degradation from a higher to a lower classification without a showing of necessity. Accordingly, under Dawson, it would be permissible to degrade water from one water use classification to another, if there is a showing of necessity. The antidegradation policy, on the other hand, provides that water may be degraded within its classification if there is a showing of economic or social necessity. In that degradation, however, the policy requires that the water quality be maintained to "protect existing uses fully." Furthermore, the policy in another provision explicitly commands that existing water uses and the level of water quality necessary to protect the existing uses "shall be maintained and protected." The policy does not say or even imply that water may be degraded from one classification to another, as Dawson states. Thus, if there is a showing of economic or social necessity, the water described in 40 C.F.R. 131.12(a)(2) and ADEM Admin.Code ch. 6-10, p. 10-3 may be degraded within its classification, but water may never be degraded from a higher classification to a lower one. Although it is unclear whether the statement in Dawson is dictum or is a holding, to the extent that Dawson differs from this decision, it is overruled. We explain presently why this discussion is relevant and important to this case. For now, we return to ADEM's final two arguments.
ADEM argues that the Commission's interpretation of the antidegradation policy does not violate the antidegradation policy, because, it says, the state antidegradation policy does not conflict with the federal antidegradation policy. That argument does not explain or even address the relevant issue, which is whether the Commission's holdings in effect interpret the antidegradation policy in such a way that its provisions will not be applied to any water to which ADEM has currently assigned a water use classification. We address the argument, however, because ADEM's brief spent so much time with it that even Fowl River was ultimately forced into addressing the argument as though it were relevant.
ADEM says that the state antidegradation policy, ADEM Admin.Code R. 335-6-10, does not conflict with the federal antidegradation policy, 40 C.F.R. 131.12, and *455 that the policies are, indeed, substantially the same. That portion of the argument is addressed to Fowl River's statement that the holdings of the Commission and the hearing officer violate the antidegradation policy. ADEM's argument, even at this point, does not address the substance of Fowl River's contention, however. Fowl River does not argue that the state's antidegradation policy stated in the ADEM administrative code violates the federal antidegradation policy; Fowl River, in its briefs supporting the petition for certiorari, does sometimes equate the Commission's holdings with the state antidegradation policy and argue that that is inconsistent with the national policy. However, the real thrust of Fowl River's argument, with which we agree, is that the Commission's holdings in this case conflict with the antidegradation policy by interpreting the policy so that it would not apply to waters that the policy by its own terms does apply to; furthermore, Fowl River argues, and we agree that that holding by the Commission at a practical level allows degradation of the water in violation of the antidegradation policy.
ADEM further argues that the only time a state-issued permit is governed by federal regulations is when the proposed permit is submitted to EPA by ADEM before ADEM makes its decision on the permit. ADEM asserts that even when it submits the request for the permit to EPA, "even if, for some reason, the permit does not comply with federal regulations, it can only be invalidated by a party other than EPA if state requirements are not met." In other words, ADEM argues that only EPA and not state courts can review ADEM's compliance with federal statutory and regulatory requirements.
We are inclined to disagree with this argument, because state courts often review and even interpret federal statutes and regulations. For example, state courts review actions involving the Federal Employers Liability Act (FELA), the Employees Retirement Income Securities Act (ERISA), and the Comprehensive Omnibus Budget Reconciliation Act (COBRA), and entertain actions brought pursuant to 42 U.S.C. § 1983, to name but a few. See, e.g., Illinois Central Gulf R.R. v. Price, 539 So. 2d 202 (Ala.1988) (federal statutes circumscribe right to recovery in FELA action); Harbor Insurance Co. v. Blackwelder, 554 So. 2d 329 (Ala.1989) (whether insurance plan was "governmental plan" under ERISA); HealthAmerica v. Menton, 551 So. 2d 235 (Ala.1989) (ERISA). Indeed, state courts can even review a state statute's and a state agency's compliance with the United States Constitution. See, e.g., Dawson v. Cole, 485 So. 2d 1164 (Ala.Civ. App.1986) (whether agency's actions and Alabama statute violated due process).
We need not rule on ADEM's argument, however, because we resolve the case otherwise. We have noted that ADEM says that the state and national antidegradation policies are substantially the same and that, at least for this issue presented by this appeal, we agree. Accordingly, we need not address the issue exclusively in terms of the national antidegradation policy, inasmuch as the state and national policies are substantially the same and it is the state policy that is at issue. The national policy clarifies and provides some specific meanings to the state policy, much as federal laws that serve as basic patterns for state laws occasionally do. See, e.g., Rice v. Alabama Surface Mining Commission, 555 So. 2d 1079 (Ala.Civ.App.1989), cert. denied, 555 So. 2d 1079 (Ala.1990) (where Ala. Code 1975, § 9-16-93(f), based on 30 U.S.C. § 127(c), was interpreted to define "agent" by using federal law). Nevertheless, the state policy is dispositive of this issue, although the policy is clarified and explained by the national policy.
To make our final holding on this issue, we must discuss together several points previously raised. The antidegradation policy requires that the existing uses for the state's water be protected, maintained, and improved. The Commission held that the antidegradation policy did not apply to waters that were not higher quality waters than public water supply. Because ADEM does not rate any water in the state as cleaner than public water supply, the Commission's holding, if allowed to stand, *456 would mean at a practical level that the antidegradation policy would not apply to any water in the state to which ADEM has assigned a water use classification. That holding conflicts with the antidegradation policy itself, by interpreting the policy so that it would not apply to waters that the policy by its own terms does apply to, despite the Commission's holding. Additionally, at a practical level, that holding would allow the degradation of waters that the policy by its own terms applies to, and that degradation potentially violates the antidegradation policy. Moreover, our discussion of the Dawson case showed that the antidegradation policy mandates that in order for the water involved in this case to be degraded within its water use classification a showing of economic or social necessity is required and that existing water uses must be maintained. The Commission's holding would allow degradation of water within a water use classification without a showing of social or economic necessity, and the holding would allow degradation of water from its existing uses. For all these reasons, the Commission's holding cannot be sustained. Furthermore, our discussion in Part II.C. of the next issue indicates that the Commission's holding would likely result in water quality violations in relation to dissolved oxygen, a water quality standard.
The Court of Civil Appeals erred when it upheld the Commission's interpretation of the antidegradation policy.
This issue addresses the application by the hearing officer and the Commission of the evidence contained in the record to the Sewer Board's request for the NPDES permit; it also addresses the Court of Civil Appeals' judgment that affirmed the actions of the hearing officer and the Commission.[2] Because the issue is complex, we give an overview of the evidence that the record discloses, as well as some additional background of the proceedings that led to the Sewer Board's being granted the NPDES permit.
The South Alabama Regional Planning Commission ("SARPC") had responsibility for developing the waste disposal plan involved in this appeal. SARPC obtained funds from EPA for a "208 study," which was used to attempt to determine whether one site could be selected in Mobile Bay that would provide adequate environmental protection for discharging effluents from the Theodore area. SARPC hired Water Research Engineers ("WRE") to perform a dynamic estuary model ("DEM") for portions *457 of Mobile Bay. The DEM is not a mock-up or scale model, but is, instead, a series of mathematical calculations performed by a computer. The DEM had two variations, a "coarse grid" and a "fine grid." SARPC originally planned to use the DEM to eliminate all but two of the proposed sites and then to choose between those two sites by using a physical model of Mobile Bay built by the United States Army Corps of Engineers at its Waterways Experiment Station in Vicksburg, Mississippi. The record indicates, however, that SARPC primarily relied on the DEM in making its final proposed site selections and almost exclusively relied on the DEM in estimating the amount of effluent that should be discharged into Mobile Bay. The Corps of Engineers prepared the Environmental Impact Statement ("EIS") for SARPC.
The disputed factual issues disclosed by the record primarily concern a phenomenon called stratification, which occurs in the water of Mobile Bay. It is undisputed that stratification occurs in Mobile Bay. It occurs to some extent virtually every day, unless there is strong wind. Mobile Bay is highly stratified during most of the summer and early fall, although only in the last 10 or so years have scientists noted the frequency of stratification in Mobile Bay. Stratification occurs when waters of different densities come together. Waters of different densities will not mix; that means, for example, that in a column of water that is 10 feet deep there may be entirely different layers of waters of different densities, each traveling and flowing in a different or even opposite direction. At Mobile Bay, stratification occurs because of the inflow of fresh water from rivers into the salt water of the Gulf of Mexico. Fresh water is less dense than salt water, and the more dense salt water tends to sink to the bottom.
The purpose of the NPDES permit is to establish limitations on the amount of pollutants that a permittee may discharge that will allow the receiving water to assimilate the waste and still comply with the water quality standards established by the specific water use classification assigned to that body of water by ADEM. When ADEM approves the issuance of an NPDES permit, ADEM supposedly has determined that the proposed permit will allow water quality standards within the applicable water quality classification to be maintained. The hearing officer and the Commission approved this permit and imposed discharge limitations on the effluents that were the same as the maximum wasteload allocations determined by the fine grid DEM. (Certain discharges were reduced by 10 percent; see the introduction to this opinion, supra.)
Although the record discloses many problems with the DEM, which we address in the following discussion, in this overview we address only one of the problems. It is undisputed that the DEM cannot simulate stratification, because it assumes that the water receiving the pollution is homogeneously and uniformly mixed from top to bottom and that the effluent, once discharged, will rise to the surface. During stratified conditions, however, the effluent will not mix with all of the water, but, rather, will mix, if it mixes at all, only with that layer of water most similar in density to the density of the effluent. Because the DEM assumes that the effluent mixes with all of the water, when, in fact, the effluent would only mix with a portion of the water, the DEM necessarily overstates the volume of water available for mixing with the effluent during periods of stratification. That miscalculation makes the DEM necessarily overestimate how much effluent can be discharged into the water and still maintain water quality standards.
In relation to dissolved oxygen, a water quality standard applicable to all water use classifications relevant to this case, those overestimates are of particular concern. Dissolved oxygen in water is necessary for marine life, much as oxygen in the air is necessary to life on land, and the dissolved oxygen standard for all of the water use classifications of Mobile Bay is the same. The effluent contains chemical and biochemical materials that react with the water and organisms in the water to consume *458 dissolved oxygen. Under stratified conditions, there is less volume of water for the effluent to mix with, as we discussed. Because of this, the effluent discharged will cause chemical and biochemical oxygen-demanding reactions in a lesser volume of water than was estimated. Accordingly, water quality violations will result or, at the least, may result, the record indicates. A violation of dissolved oxygen standards can be particularly significant to marine life, because without sufficient dissolved oxygen, marine life dies.
As we described stratification in the overview, it is a vertical layering of the water in Mobile Bay. Usually, there are two layers, with fresh water generally on top and salt water on the bottom, although sometimes there can be three layers.
Stratification in a shallow estuary such as Mobile Bay defies science's fundamental understandings of both stratification and shallow estuaries. According to scientists from Dauphin Island Sealab and a scientist from the University of South Alabama ("USA"),[3] science has only recently noted and understood that stratification in Mobile Bay occurs as frequently as it does. Those scientists explained that Mobile Bay is highly stratified throughout most of the summer, even into early fall, and that unless there is a strong wind, the Bay is stratified to some extent nearly every day.
As we stated in the overview, waters of different densities do not mix, so in Mobile Bay there may be a layer of fresh water, a layer of salt water, and possibly even another layer of water, salt or fresh, each layer traveling and flowing in a different or even opposite direction. If the effluent is discharged into Mobile Bay, it will attempt to mix with the stratum of water most similar to its own density. Accordingly, if the density of the effluent is more similar to the density of the bottom layer, it will mix only with the water in that bottom stratum and will be dispersed in whatever direction the bottom stratum is flowing. If the effluent is denser than the upper stratum and less dense than the lower, the effluent will form its own stratum in between. For example, according to Dr. Eldon Carl Blancher, the USA scientist:
The DEM's purpose is to simulate both the water receiving the effluent and the proposed discharge in order to determine the maximum amount of specific pollutants that the receiving water can assimilate without violating water quality standards. The amount of waste that it determines can be assimilated is called the "wasteload allocation." The wasteload allocation was determined by gradually increasing the concentrations of waste in the DEM in a fixed, predetermined volume of effluent flow until the computer showed a violation of water quality standards in the water receiving the effluent. The DEM is a two-dimensional model, because it simulates two dimensions of the receiving waters.
With the foregoing factual background, we consider the DEM. There are several deficiencies in the DEM that must be considered, because the NPDES permit's effluent limitations are based on the maximum wasteload allocations determined by the fine grid DEM, and furthermore, the Commission recommended that the NPDES permit limitations be the same as the maximum wasteload allocations determined by the fine grid DEM, with the few reductions discussed earlier. Any deficiencies of the DEM in determining the proper wasteload allocations are, accordingly, directly transferred to the NPDES permit.
*459 The first deficiency of the DEM is that it is a two-dimensional model used to describe a three-dimensional environment, Mobile Bay. In fairness, we must note that the DEM was the state-of-the-art model when it was originally used, and, at the time of the adjudicatory hearing, no reliable three-dimensional model existed. Nevertheless, because of the many deficiencies of the DEM, its maximum wasteload allocations should not be used as the determinative factor in establishing for the NPDES permit the amount of waste to discharge.
According to Dr. Schroeder, one of the scientists from Dauphin Island Sealab, the salinity and temperature of the water in Mobile Bay varies from the surface of the water to the bottom of the water, as well as from the north of the Bay to the south, and from the east to the west. Accordingly, the water must be looked at three-dimensionally. To look at the water two-dimensionally sacrifices one dimension. The DEM uses one vertical average for salinity; that is, the salinity value used by the DEM was determined by averaging salinity readings taken from various points near the surface with salinity readings taken from various points near the bottom. That average became the one assigned salinity value. As we mentioned before, there is almost always some stratification in the Bay, and there is high stratification during most of the summer and even into early fall. The stratification is usually caused by salinity differences in the water; that is, the more saline, thus denser, salt water forms its own layer at the bottom. The DEM cannot simulate stratification when there is one average, one point used to determine the value of the salinity dimension. As Dr. Schroeder said, "of course, stratification just doesn't show up when you're averaging, when you have only one point. You need two points to see stratification."
We noted a second deficiency in the DEM in the overview: it cannot simulate stratification, because it assumes a homogenous water mixture. The scientists from Dauphin Island Sealab and the EIS agree on this point. Joe Duncan, SARPC's project engineer who supervised the 208 study, conceded as much:[4]
That point leads to a related, vitally important point. The DEM assumes that the water is homogeneously mixed and that the effluent mixes with all the water of the Bay. During periods of stratification, however, the effluent will mix, if it mixes at all, only with that layer of water most similar in density to the density of the effluent. Because the DEM assumes that the effluent mixes with all the water, when, in fact, the effluent would mix with only a portion of the water, the DEM necessarily overstates the volume of water available for mixing with the effluent. That miscalculation makes the DEM necessarily overestimate how much effluent can be discharged into the water and still maintain water quality standards, because the same amount of effluent for the maximum wasteload allocation determined by the DEM would be discharged into a lesser volume of water than the DEM assumed was available for mixing. Dr. Schroeder addressed that deficiency in the DEM:
Another deficiency of the DEM is that it assumes that the effluent will have only one density, or, stated another way, the DEM does not consider the effect of different effluent densities. The Corps of Engineers in the EIS addressed that deficiency:
Accordingly, another deficiency of the DEM is that it cannot determine the extent to which the effluent will disperse in the water if the effluent has a density other than the density of the water receiving it. Furthermore, unless the effluent has a density similar to that of the water, when the water is stratifiedand with the effluent naturally seeking to mix with water of a density similar to its ownthe DEM cannot explain whether the effluent will mix with the top or with the bottom layer of the water, or whether it will simply sink to the bottom or form its own layer.
Still another deficiency of the DEM results from its assuming a homogenous mixture of water and, also, assuming that the circulation pattern of the water is the same from the bottom to the top. As we have discussed, stratification can result in different layers of water traveling different, even opposite directions. Accordingly, during periods of stratification, the DEM may or may not represent the circulation of the water and its concurrent effects on the dispersion of the effluent.
A similar deficiency in the DEM involving the water's circulation and the effluent's circulation concerns the DEM's assumption that the effluent will normally rise to the surface of the water. Because more dense solutions tend to sink below less dense solutions, the effluent is unlikely to come to the surface after discharge if it is denser than any part of the water and stratified conditions exist at the time of the discharge. The DEM can, at best, describe surface circulation. It cannot analyze any subsurface circulation of the effluent. Indeed, according to the EIS, no mathematical method exists for analyzing the behavior of the effluent if the effluent does not come to the surface.
Joe Duncan testified as follows:
Thus, according to Duncan, not only will the DEM fail to analyze what direction any effluent below the surface is circulating in, but also the DEM will misstate the direction of any subsurface circulation that flows in a direction different from surface circulation. Accordingly, once again, during periods of stratification, the DEM cannot analyze the behavior of effluent discharged into Mobile Bay. Furthermore, in this instance, the DEM cannot analyze the behavior of the effluent any time that it is denser than any part of the water column and thus does not rise to the surface.
Despite all the evidence of the deficiencies of the DEM mentioned in this opinion, as well as evidence of other deficiencies of the DEM not mentioned in this opinion, the hearing officer and the Commission made the following findings, which the Court of Civil Appeals affirmed:
The hearing officer created the term "averaging technique." The record does not contain references to an "averaging technique" or to any similarly named method by which the DEM could "compensate" for stratification.
The basis for the hearing officer's creation of the "averaging technique" is Duncan's testimony. Duncan testified that "[the DEM] takes into consideration stratification by taking the bottom and top water quality and averaging so in that way it considers stratified water body by taking an average between the top and bottom." Duncan further testified that "the [DEM] would take [stratification] into account by averaging the top and bottom density." Duncan also testified that the model could average effluent concentrations from top to bottom and that that might help compensate for stratification.
The hearing officer's "averaging technique" does not prove that the DEM can compensate for stratification. To understand that, recall Dr. Schroeder's testimony in the earlier discussion of the DEM, where we explained that when Mobile Bay is stratified, the DEM overstated the volume of water available for mixing with the discharged effluent. The volume of water available for mixing with the effluent is a key to the degree to which the effluent will disperse in the water. Duncan testified that, by averaging the density of the water from the top to the bottom and averaging *462 the concentrations of effluent from top to bottom, the DEM compensates for stratification; this testimony, if true, would mean that the model compensates for the lack of volume by changing its assumptions for the density of the water and for the concentration of the effluent. Averaging the density of the water or averaging the concentration of the effluent cannot affect the volume of water that will actually be available to mix with the effluent, however. An example from Fowl River's brief illustrates the fallacy involved in Duncan's testimony. Fill a bucket with water that has a specific water quality and then put in the water the maximum amount of waste that the bucket of water can assimilate and still meet the specific water quality standard. Fill a second identical bucket half full of the same quality water, but put the same amount of waste in that bucket that was put in the full bucket. If you mix the waste thoroughly with the water in each bucket, the second bucket of water will be more contaminated and cannot meet the same water quality standard that the full bucket will meet. Any assumptions about the density of the water and the concentration of the effluent are not going to affect the degree of dispersion actually achieved in the second bucket. The DEM again fails to compensate for stratification, because averaging the densities or concentrations cannot affect the volume of water actually available for mixing.
In summary, the record indicates that Mobile Bay is too complex an environment for the DEM to simulate. We have documented numerous factors that could affect water quality that the DEM cannot analyze. Considering our discussion, and mindful that the Commission recommended that the NPDES permit's effluent limitations be the same as the maximum wasteload allocation determined by the fine grid DEM, we hold that the Court of Civil Appeals erred when it reversed the trial court's judgment, which stated:
This discussion properly involves the relationship of stratification, dissolved oxygen, and fecal coliform bacteria; however, ADEM's attempt to equate all water quality standards with the water quality standards concerning fecal coliform bacteria led the Court of Civil Appeals to factual errors, which we must also discuss.
Dissolved oxygen in water is necessary for marine life, much as oxygen in the air is necessary to life on land. Dissolved oxygen is a water quality standard established in ADEM's administrative regulations. It applies to all water use classifications. The effluent contains chemical and biochemical materials that react with the water and organisms in it to consume the dissolved oxygen. Dr. Blancher provided this explanation of the reduction of dissolved oxygen in the water, if the effluent is discharged as proposed:
Thus, oxygen-demanding pollutants, once discharged into the receiving water, consume the dissolved oxygen in the water by chemical and biological processes. That can result in a depletion or lessening of the dissolved oxygen concentration in the receiving water at the same time that those pollutants are being dispersed or transported in whatever direction the circulation of Mobile Bay takes the effluent. The consequence of depletion of dissolved oxygen in the water is grave: it would kill any oxygen-consuming organism.[5]
*464 Now consider the effect of stratification in relation to these dissolved oxygen concerns. The EIS says:
In part, the EIS restated what we have already discussed about stratification, the NPDES permit, and the DEM. Both the NPDES permit limitations and the DEM's maximum wasteload allocation, which is the basis for the permit limitations, cannot be relied upon to maintain water quality standards, because they do not account for stratification and its concurrent reduction in the volume of water available for mixing. The EIS went further, however, and stated: "[T]he waste load allocation would have to be less than the present estimate to meet oxygen standards." In other words, the EIS is saying that if the DEM's maximum wasteload allocations, which are the same as the Commission's suggested NPDES permit limitations, are used, water quality violations will likely result. That is a stronger statement than Dr. Blancher made; he testified that water quality violations may result from consumption of the dissolved oxygen by oxygen-demanding materials. We emphasize the significance of this: Our discussion has demonstrated that water quality violations will likely result from using even the Commission's suggested permit limitations, which are reductions from the pollutant *465 discharge allowed by the permit itself. That further demonstrates that the granting of the permit must be reevaluated.
Every appellee, even the amicus, completely ignores all problems related to dissolved oxygen. At the cost of being redundant, we emphasize this point, shocking in a case of this import: None of the appellees nor the amicus addresses in any way the dissolved oxygen concerns stated in this opinion. Instead, they all state their entire arguments concerning stratification and water quality standards in terms of fecal coliform bacteria, as if fecal coliform were the only water quality standard applicable to Mobile Bay.
"Fecal coliform bacteria" is a water quality standard. The NPDES permit authorized the proposed effluent discharge to contain a fecal coliform concentration of 200 mpn/100 ml. The hearing officer and the Commission proposed reducing that figure to 14 mpn/100 ml, which is the figure necessary to meet the water quality standards for the shellfish harvesting water use classification, the water use classification with the most stringent restrictions for fecal coliform bacteria. In this regard, the hearing officer and the Commission acted properly, for the evidence overwhelmingly indicates that that reduction would be required to avoid risking closing the oyster reefs. Fecal coliform bacteria are not harmful to the oysters; indeed, they thrive on it. Eating oysters with excessive fecal coliform bacteria is a human health hazard, however. The State Health Department monitors the oyster reefs for fecal coliform bacteria and will close the reefs to commercial oyster harvesting when the fecal coliform bacteria exceed the accepted limits. It is noteworthy that problems concerning fecal coliform bacteria can result in the closure of the reefs until the concentrations return to acceptable limits, while the problems concerning dissolved oxygen affect the very survival of oxygen-consuming organisms.
The corrective actions taken by the hearing officer and the Commission successfully resolved the problems related to the permit's liberal limitations on fecal coliform bacteria. Even Fowl River states that fecal coliform is not an issue, if the Commission's corrective actions are upheld. Further discussion of fecal coliform at this point serves only to confuse the issues involved in this appeal.
The Court of Civil Appeals, however, accepted evidence limited in applicability to fecal coliform bacteria as evidence that applied to all water quality criteria and stratification. The court wrote:
572 So. 2d at 444. That statement is correct only insofar as it addresses fecal coliform bacteria.
All of the experts agree that if the water quality standards for fecal coliform bacteria are met at the point of discharge, then the water quality standards for fecal coliform bacteria will not be violated elsewhere, because the amount of fecal coliform bacteria will not increase in the water. As we have explained, that is not the case with dissolved oxygen: oxygen-demanding materials continue to deplete dissolved oxygen concentrations even after discharge as they are circulated to other parts of Mobile Bay. Accordingly, even if water quality objectives are met with regard to dissolved oxygen at the point of discharge, there is no assurance that this *466 water quality standard will be met at other points in the receiving water.
The Court of Civil Appeals erred when it made the statements that we have been discussing.[6]
In addition to the factual errors that we have already discussed, the Court of Civil Appeals made at least four more factual errors in its opinion.
The court stated that "[Duncan] testified that because the DEM was incapable of precisely simulating stratification, there would be a slight overestimation of the waste load assimilative capacity of the Bay." The record does not contain such testimony. Duncan did say that the DEM could "compensate" for stratification, but neither he nor any of the experts testified that the DEM could "simulate" stratification to any extent. As to the degree of overestimation, Duncan's testimony varied; he testified that the degree of overestimation would be "some," "10%," "10% to 15%," "twice or more," that he did not know how much it would affect it, and finally, that stratification conditions were totally unimportant with regard to the DEM.
The Court of Civil Appeals also stated that Duncan testified that "in comparing the field-testing results of both a two- and three-dimensional model, the difference in waste-load allocations would be approximately ten percent." 572 So. 2d at 444. The record indicates otherwise. Duncan testified that he compared a two-dimensional model of the mouth of Chickasaw Creek to a three-dimensional model of the same body of water and that the difference in the wasteload allocations predicted by the two models, not by field testing results, was approximately 10 percent. (The mouth of Chickasaw Creek is the entrance to a deep water tributary of the Mobile River and is used by oceangoing ship traffic serving the port of Chickasaw.) Duncan specifically testified that he did not compare the results of either model of Chickasaw Creek to actual field conditions.
In relation to the statement just quoted, the Court of Civil Appeals further stated that "the evidence indicated that stratification would not make more than a ten percent difference in actual dispersion rates." Id. That statement must come from a misunderstanding of Duncan's testimony, because the only evidence presented of actual dispersion rates came from Dr. Schroeder, who testified that he compared the results of a three-dimensional model of Mobile Bay with his actual field data and that the model's results were greatly different from the actual field data. Duncan's testimony, at best, showed that between the two models, there was very little difference in the predictions for the wasteload assimilative capacity of Chickasaw Creek. All of the experts agreed that the three-dimensional model was unproved and experimental.
The Court of Civil Appeals wrote:
The record does not support either the example given by the court or the assertion that the diffuser will "completely compensate for stratification." Actually, the record reveals exactly the opposite. Dr. Schroeder, Dr. Blancher, Dr. Crozier (another scientist at Dauphin Island Sealab), the EIS, and Duncan confirmed that even with a diffuser, the effluent would either mix with whatever stratum it was most similar to in density or would form its own layer, if it was more dense than the top layer and less dense than the bottom layer; or it would sink to the bottom, if it was denser than the other layers. Additionally, the record contains no substantial evidence that a diffuser would mix the water from the bottom to the top at the point of discharge in such a way that the effects of stratification would be negated. As a matter of fact, at the time of the adjudicatory hearing, the Sewer Board, which had the responsibility for designing the diffuser system, had not approved any design for a diffuser.
The Court of Civil Appeals erred in the several ways previously discussed: The court made several factual errors in its opinion, particularly regarding stratification, as well as regarding dissolved oxygen; the court erred when it reversed the trial court's order that held that the "agencies below failed to thoroughly investigate [stratification] and its possible effects;" and the court erred in its interpretation of the antidegradation policy.
Furthermore, the record does not support a holding that affirms the granting of the NPDES permit. Instead, the record indicates that water quality violations may result or will likely result if the permit is granted, even with the Commission's suggested permit limitations, which are reductions from the effluent discharge allowed by the permit itself. The NPDES permit is due to be denied. The judgment of the Court of Civil Appeals is due to be reversed, and the cause remanded to that court with instructions for it to remand for the trial court to enter a judgment that denies the NPDES permit.
REVERSED AND REMANDED WITH DIRECTIONS. REHEARING OVERRULED; OPINION MODIFIED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., recused.
[1] For the sake of simplicity, we refer to the arguments raised by any of the appellees as ADEM's arguments.
[2] Because subject matter jurisdiction is always pertinent to a court's determination in any case, see Rule 12(h)(3), A.R.Civ.P., we note that the Eleventh Circuit Court of Appeals' interpretation of Ala.Code 1975, § 22-22A-7(c), which gives "aggrieved" persons the right to appeal an ADEM decision on a permit application to the Commission, is incorrect. In Save Our Dunes v. Alabama Dept. of Environmental Management, 834 F.2d 984 (11th Cir.1987), the court held that a person is not "aggrieved" so as to have standing to appeal an ADEM permit decision unless that person can show that the ADEM decision "adversely affected their legal or equitable interests in land." 834 F.2d at 989. Basically, the Eleventh Circuit ruled that a person cannot challenge an ADEM decision unless that person owns a property interest directly affected by the decision. This is simply not the law in Alabama. In cases involving appeals from ADEM decisions and in other cases, this Court has allowed "aggrieved" persons standing to appeal despite the fact that they did not own property affected by the decision in question. See Ex parte Baldwin County Comm'n, 526 So. 2d 564 (Ala.1988), and Johnson v. Rice, 551 So. 2d 940 (Ala.1989). It is not necessary in this case to delineate exactly who is, and who is not, an "aggrieved" person, because the parties that appealed this ADEM decision clearly qualify under the statute. We only wish to point out that matters of environmental protection and regulation are of great significance to the citizens of Alabama, and that a citizen's statutory right to appeal an ADEM decision should be interpreted broadly. Indeed, the Eleventh Circuit's decision in Save our Dunes is curious in light of the broad interpretation placed on citizen standing provisions in federal environmental statutes. See Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972). Morton certainly does not require that a person own a property interest affected by an administrative decision in order to appeal that decision. See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 98 S. Ct. 2620, 57 L. Ed. 2d 595 (1978).
[3] Two scientists from Dauphin Island Sealab testified. Dr. William Schroeder has a Ph.D in oceanography. Dr. George Crozier is executive director of the Marine Environmental Sciences Consortium and has a Ph.D in marine biology. Dr. Eldon Carl Blancher is an environmental engineer and ecologist who formerly worked at Dauphin Island Sealab and who presently is a professor at the University of South Alabama.
[4] Admittedly, Duncan's lengthy testimony is a maze of inconsistencies and self-contradictions from which nearly any argument germane to this appeal can be made. We use Duncan's testimony at various times to explain our discussion only because, in the particular instance, he expressed clearly an idea that others had already expressed or confirmed.
[5] SARPC compounded any dissolved oxygen problem by using estimates of water quality that are below the applicable water quality standards. The dissolved oxygen standards for all three classifications in Mobile Bay, fish and wildlife, swimming, and shellfish harvesting, are 5.0 milligrams/liter (mg/1). SARPC's Theodore analysis, establishing the wasteload allocations that are now part of the NPDES permit, assumed that the dissolved oxygen standard for shellfish was 4.7 mg/1; that assumption was wrong, because the water quality standards explicitly state that 5.0 mg/1 is the dissolved oxygen requirement for shellfish harvesting.
[6] We note here one area of concern that was not addressed in the previous discussion. The hearing officer's report contended that it would require a "worst case of worst case scenario" for there to be dissolved oxygen problems. The record does not support that holding. Instead, the record indicates that the "worst case" scenario occurs frequently in late summer and early fall; the EIS stated:
"Conditions that would represent a worst-case situation for estimating the impact on dissolved oxygen of BOD loading near the outfall would be the commonly-occurring late summer conditions of low river inflow, high water temperatures, light winds, high salinities and a strongly stratified water column."
The record, particularly the testimony of the scientists from Dauphin Island Sealab, uniformly supports this. | September 21, 1990 |
6758e070-9678-4679-956c-dbe0b976a63a | BROADMOOR RLTY., INC. v. First Nationwide Bank | 568 So. 2d 779 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 779 (1990)
BROADMOOR REALTY, INC.
v.
FIRST NATIONWIDE BANK.
89-468.
Supreme Court of Alabama.
September 14, 1990.
William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, for appellant.
Steven L. Nicholas of Sirote & Permutt, Mobile, for appellee.
MADDOX, Justice.
This appeal presents two issues: 1) whether the trial court erred in denying the defendant's motion to set aside a foreclosure sale or, in the alternative, to deny confirmation of that sale, and 2) whether the trial court erred in entering a summary judgment for the plaintiff bank on the defendant's counterclaim seeking an accounting in equity. The parties have been before this Court previously. See Broadmoor Realty, Inc. v. First Nationwide Bank [hereinafter "Broadmoor I"], 553 So. 2d 122 (Ala.1989). Although the issues in Broadmoor I were different from the two issues presented here, the factual circumstances that underlie the two separate appeals are the same.
The essential facts of this case were set forth in Broadmoor I, wherein we stated:
"On July 19, 1983, East Perdido (now Broadmoor Realty) executed a promissory note for $9,400,000 and an accompanying mortgage on certain real estate to First Nationwide, for which Town and Campus was guarantor. On August 26, 1983, East Perdido, Town and Campus, St. Louis Federal, Realty Sales, Inc., and First Prudential Corporation entered into a joint venture agreement under the name of Coastal Perdido Properties (hereinafter `Coastal Perdido') for the purpose of `acquiring, holding, developing, and selling certain real estate' in Baldwin County, Alabama. On August 30, 1983, Coastal Perdido assumed the mortgage given by East Perdido to First Nationwide. In an unrelated transaction, East Perdido executed another promissory note to First Nationwide on March 19, 1984, for $900,000 with a revolving line of credit, which was also guaranteed by Town and Campus.
"When the joint venture defaulted on the mortgage and Broadmoor Realty defaulted on the revolving note, First Nationwide sued Broadmoor Realty, Town and Campus, and Coastal Perdido on September 22, 1987, demanding foreclosure on the mortgaged property and a money judgment on both promissory notes. The trial court granted partial summary judgment for First Nationwide on three of its six counts, ordering foreclosure of the mortgage and ordering Broadmoor Realty and Town and Campus to pay $1,177,008.93, representing the balance due on the $900,000 note plus interest and attorney fees."
553 So. 2d at 123. In Broadmoor I, this Court held that the trial court did not err in entering a partial summary judgment for First Nationwide Bank (hereinafter "First Nationwide") on counts three, five, and six of its six-count complaint, which sought respectively, a court-ordered foreclosure sale of the real estate mortgaged by East Perdido (now Broadmoor Realty) to St. Louis Federal (now First Nationwide) to secure the $9,400,000 loan, a judgment against Broadmoor Realty for $994,131.36 plus interest and attorney fees owed to First Nationwide resulting from Broadmoor Realty's default on its $900,000 loan, and a judgment against Town and Campus, as guarantor of the $900,000 loan, for the amount to be entered against Broadmoor Realty resulting from its default on that loan.
Following the trial court's entry of summary judgment for First Nationwide on count three of its complaint (the count seeking a court-ordered foreclosure sale of the mortgaged property of Broadmoor Realty), First Nationwide filed a motion to receive a credit on its bid, in lieu of a cash bid, to be offered by it at the foreclosure sale to the extent of the judgment entered against Broadmoor Realty resulting from its default on First Nationwide's $9,400,000 loan.[1] Pursuant to the trial court's order, First Nationwide was permitted, at the foreclosure sale, to enter a non-cash bid to the extent of the debt owed to it by Broadmoor Realty. According to the register's report, First Nationwide, the sole bidder, offered a bid of $2,500,000 for the property, which was accepted by the register, and that amount was credited against the debt owed to First Nationwide by Broadmoor Realty. Following the trial court's confirmation of that foreclosure sale, a deed was issued by the register to First Nationwide, and after the trial court denied Broadmoor Realty's motion to set aside the foreclosure sale or, in the alternative, to deny confirmation of that sale, the *781 trial court entered a final order dismissing First Nationwide's three remaining counts against Broadmoor Realty, and also entered a summary judgment for First Nationwide on Broadmoor Realty's counterclaim seeking an accounting of the assets and liabilities of the joint venture named Coastal Perdido.[2]
Broadmoor Realty argues that the trial court erred in permitting First Nationwide to receive a credit on its foreclosure bid to the extent of the judgment entered against Broadmoor Realty resulting from its default on the $9,400,000 loan. Broadmoor Realty argues that, because the notice of foreclosure sale specified that the foreclosed-upon property would be sold at public outcry "to the highest bidder for cash," the trial court could not permit First Nationwide to enter a non-cash bid for the property and consequently could not confirm the foreclosure sale. In support of that position, Broadmoor Realty cites the case of McCully v. Chapman, Adm'r, 58 Ala. 325 (1877). That case involved the unauthorized decision by an administrator to sell estate property on credit and not "for cash" as explicitly ordered by the probate court. We find that case to be distinguishable. Unlike the McCully case, the trial court in this case expressly stated in its order that First Nationwide could receive a credit on its bid offered at the foreclosure sale to the extent of the judgment entered against Broadmoor Realty resulting from its default on the $9,400,000 loan. The fact that the trial court entered that order after the foreclosure sale announcement had been published in the local paper is not critical.
The underlying purpose of a foreclosure sale is to sell property at public outcry in order to generate funds to pay the affected creditors. To force First Nationwide, the sole creditor, to tender a "cash bid" at a foreclosure sale for property that it initially looked to as security for its loan to Broadmoor Realty is unnecessary in light of the fact that any cash bid given by First Nationwide at the foreclosure sale would later be returned to it and credited against the debt owed by Broadmoor Realty. To require the "cash bid" here would be to elevate form over substance. The logic of not requiring a "cash bid" in a case such as this has already been noted in other courts. See In re Renne, 55 F. Supp. 868 (D.C.Neb. 1944); Mogilka v. Jeka, 131 Wis.2d 459, 389 N.W.2d 359 (Wis.App.), review dismissed, 131 Wis.2d 594, 393 N.W.2d 297 (1986); Pennington v. Purcell, 155 Miss. 554, 125 So. 79 (1929).
For the aforementioned reasons, we affirm the trial court's order permitting First Nationwide to use its judgment entered against Broadmoor Realty to pay its bid price for the foreclosure property in lieu of a cash bid, as well as its denial of Broadmoor Realty's motion to set aside the foreclosure sale or, in the alternative, to deny confirmation of that sale.
The second and final issue raised by Broadmoor Realty involves the summary judgment for First Nationwide on Broadmoor Realty's counterclaim seeking an accounting in equity of the assets, credits, debts, liabilities, transactions, and dealings of Coastal Perdido. As noted earlier, the partners of Coastal Perdido were East Perdido (now Broadmoor Realty) and Realty Sales. At the time of Realty Sales' involvement in the joint venture, it was a wholly owned subsidiary of First Nationwide. Under the terms of their joint venture agreement, Broadmoor Realty and Realty Sales agreed to make contributions to a common fund for the sole purpose of "acquiring, holding, developing, and selling" certain real estate located in Baldwin County. Furthermore, the agreement stated that upon "termination of this Joint Venture, all assets of the Joint Venture shall be distributed to the parties then entitled thereto, and a final accounting shall be *782 made of the assets, credits, debts, liabilities, transactions, and dealings of the Joint Venture." The agreement also stipulated that the partners would share equally in the profits and losses generated by their joint venture.
In order to acquire the funds needed to purchase the desired real estate, Broadmoor Realty and Realty Sales (i.e. Coastal Perdido) stipulated in their joint venture agreement that Coastal Perdido would assume payment of the mortgage note executed by Broadmoor Realty to St. Louis Federal (now First Nationwide). Because of its assumption of that note, Coastal Perdido assumed control of the unused loan proceeds available to it.[3] As noted in our excerpt from Broadmoor I, when Coastal Perdido defaulted on its assumed note, First Nationwide sued Broadmoor Realty, Town and Campus, and Coastal Perdido.
In its answer filed in response to First Nationwide's complaint, Broadmoor Realty asserted a counterclaim against First Nationwide, in which Broadmoor Realty demanded that the trial court order an accounting of the assets, credits, debts, liabilities, transactions, and dealings of the joint venture known as Coastal Perdido in order to terminate the partnership. First Nationwide filed a motion for summary judgment on Broadmoor Realty's counterclaim, which the trial court granted. We hold that the summary judgment was appropriate.
As this Court stated in Greene v. Thompson, 554 So. 2d 376, 378-79 (Ala. 1989):
At the time First Nationwide filed its motion for summary judgment, the trial court had before it the pleadings, the joint venture agreement, and various affidavits of parties allegedly familiar with the joint venture partnership.
As we understand Broadmoor Realty's position in its counterclaim against First Nationwide seeking an accounting of the operations of Coastal Perdido, it is that Broadmoor Realty claims that First Nationwide is a partner in Coastal Perdido and, therefore, is subject to an action for an accounting of the operations of that partnership. As this Court stated in Worley v. Worley, 388 So. 2d 502, 506 (Ala.1980), "In any action for an accounting, it is the responsibility of the trial court to determine the preliminary question of whether an individual is entitled to that relief."
Alabama, like other states, statutorily recognizes the right of a partner to seek an accounting as to matters growing out of the partnership.[4] In fact, a partner *783 must seek an accounting in equity before he can commence an action at law against his copartner on matters growing out of their partnership. In Broda v. Greenwald, 66 Ala. 538, 542 (1880), this Court, in addressing the right of a partner to commence an action at law against a copartner, declared:
First Nationwide answered Broadmoor Realty's counterclaim for an accounting and claimed that it was never a partner in the joint venture; in fact, First Nationwide asserted in that same answer that Broadmoor Realty had always been in "total control of the books, records and accounts of the partnership." First Nationwide asserts in its brief that its position in relationship to Coastal Perdido was merely that of a lender, not a partner. In support of its argument, First Nationwide included the following excerpt taken from the joint venture agreement:
Additionally, First Nationwide included the following excerpt taken from the agreement to bolster its argument that its only relationship with Coastal Perdido was that of a mere lender, not a partner:
A clear reading of the aforementioned excerpts taken from the joint venture agreement shows that First Nationwide was never intended to be a partner in Coastal Perdido.
The only relationship that First Nationwide had with the partnership was that of a lender, not a partner, even though one of the partners was a wholly owned subsidiary of First Nationwide; therefore, the trial court did not err in entering the summary judgment in favor of First Nationwide. Broadmoor Realty's argument that because Realty Sales was a subsidiary of its parent corporation, St. Louis Federal (now First Nationwide), at the time of its participation in the joint venture, that fact somehow transformed First Nationwide's position from one of a lender to the partnership to that of a participating partner is not supported *784 by the law or the facts. The only way Broadmoor Realty's argument could be supported is if it could demonstrate that Realty Sales was a "mere adjunct, instrumentality, or alter ego" of its parent corporation, First Nationwide. See Ex parte Baker, 432 So. 2d 1281, 1284 (Ala.1983); Birmingham Realty Co. v. Crossett, 210 Ala. 650, 98 So. 895 (1923); Krivo Industrial Supply Co. v. National Distillers & Chemical Corp., 483 F.2d 1098 (5th Cir. 1973). The record is devoid of any evidence that Realty Sales was a mere adjunct, instrumentality, or alter ego of its parent, First Nationwide; consequently, the trial court did not err in granting First Nationwide's motion for summary judgment on Broadmoor Realty's counterclaim.
Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] As noted earlier in this opinion, the principal amount of First Nationwide's loan to East Perdido (now Broadmoor Realty), which was secured by the mortgage on the later-foreclosed-upon property, was $9,400,000. At the time of its complaint, First Nationwide claimed accrued loan interest owed to it of $819,507.33. The total amount of the debt claimed by First Nationwide at the time of its complaint against Broadmoor Realty was $10,219,507.33.
[2] The partners of the joint venture were East Perdido and Realty Sales, Inc. Realty Sales, at the time of its involvement in the joint venture, was a wholly owned subsidiary of First Nationwide.
[3] The joint venture agreement also stipulated that Town and Campus would act as guarantor on the mortgage assumed by Coastal Perdido.
[4] Ala.Code 1975, § 10-8-47, which is part of the Alabama Partnership Act, reads as follows:
"§ 10-8-47. Right of partner to formal accounting.
"Any partner shall have the right to a formal accounting as to partnership affairs:
"(1) If he is wrongfully excluded from the partnership business or possession of its property by his copartners;
"(2) If the right exists under the terms of any agreement;
"(3) As provided by section 10-8-48; or
"(4) Whenever other circumstances render it just and reasonable."
Ala.Code 1975, § 10-8-48, states the following:
"§ 10-8-48. Partner accountable as fiduciary.
"(a) Every partner must account to the partnership for any benefit and hold as trustee for the partnership any profits derived by him without the consent of the other partners from any transaction connected with the formation, conduct, or liquidation of the partnership or from any use by him of the partnership property.
"(b) This section applies also to the representatives of a deceased partner engaged in the liquidation of the affairs of the partnership as the personal representatives of the last surviving partner." | September 14, 1990 |
dca65ebd-20fd-41a0-8a7c-5121e4b0f5b5 | Stinson v. American Sterilizer Co. | 570 So. 2d 618 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 618 (1990)
Louis STINSON
v.
AMERICAN STERILIZER COMPANY, et al.
89-813.
Supreme Court of Alabama.
September 14, 1990.
Rehearing Denied October 19, 1990.
*619 Jim L. DeBardelaben of McPhillips, DeBardelaben & Hawthorne, Montgomery, for appellant.
Stephen X. Munger and Jay D. Milone of Jackson, Lewis, Schnitzler & Krupman, Atlanta, Ga., and Henry C. Barnett, Jr. of Capell, Howard, Knabe & Cobbs, Montgomery, for appellees.
HOUSTON, Justice.
This is an appeal from a summary judgment in favor of the defendants, American Sterilizer Company ("the Company"), Donald J. Ryan, Keith Long, Kenneth D. Thomas, and Bill Robertsall management members at the Company's Montgomery, Alabama, facilityand against Louis Stinson on Count II of his complaint, which alleged breach of an employment contract. The trial court made that judgment final pursuant to Rule 54(b), A.R.Civ.P. We affirm.
The issues presented for our review are whether the Company's employee handbook created an employment contract and, if so, whether that handbook required periodic performance evaluations for transferred employees. In essence, Stinson alleges that, because he did not receive periodic performance evaluations after his transfer and because his annual review was not timely submitted to him, prior to the termination of his employment, the defendants breached the contract based on the Company's employee handbook.
This case was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12. In West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989), this Court, construing § 12-21-12, stated that "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." See Thomas v. Principal Mutual Financial Group, 566 So. 2d 735 (Ala.1990).
Absent an agreement between Stinson and the Company requiring the Company to provide Stinson with periodic performance evaluations at specified intervals and with an annual review at a specific *620 time, Stinson had no cause of action for breach of an employment contract. Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725 (Ala.1987). Stinson argues that the Company's employee handbook created an employment contract upon which he was entitled to rely. Therefore, we must first address the issue of whether the Company's employee handbook did in fact create a contract of employment between Stinson and the Company and, if it did, whether the Company breached that contract by failing to provide Stinson with periodic performance evaluations at specified intervals and with an annual review at a specific time after he had been transferred to another job.
The Company's employee handbook introduces the employee to the Company and describes, along with other things, the benefits, employment conditions, and safety provisions. In the handbook, the Company expressly reserves the right to deviate from the policy provisions contained therein. That portion of the handbook styled "Summary" reads as follows:
(Emphasis added.)
In the handbook, the Company also reserves the right to deviate from its policies pertaining to discipline. After listing examples of inappropriate conductconduct that could result in immediate discharge and after stating the procedures for the positive reinforcement and corrective action for such conduct, the handbook provides as follows:
(Emphasis added.)
Furthermore, after listing the types of inappropriate conduct for which corrective action might be applied, the handbook informed its employees that the examples of conduct that could lead to progressive action techniques, up to and including discharge, were not all-inclusive:
(Emphasis added.)
In addition, the following portion of the performance review provision that Stinson relies upon is discretionary:
It does not state that employees will or must be reviewed on a periodic basis after transfer. Rather, it simply states that supervisors *621 of transferred employees plan to hold several sessions with the employee during the early stages of his job.
Furthermore, although another portion of that provision mandates an annual review, it does not designate a specific date on which the Company must submit that review to the employee:
Although the Company did not review Stinson at each interval, it did conduct an annual review of his performance and it did provide him with a copy of that annual review prior to his termination, albeit several months after the annual review had been conducted.
In Hoffman-La Roche, supra, this Court, recognizing that the language in a policy contained in an employee manual may become an offer to create a binding unilateral contract, enunciated a three-pronged test in order to determine whether a policy contained in a handbook constitutes an offer to create a binding contract between an employer and an employee:
512 So. 2d at 735. However, whether a handbook policy meets this test is a matter of law to be determined by the court. See Hoffman-La Roche, supra; see, also, Bailey v. Intergraph Corp., 537 So. 2d 21 (Ala. 1988).
Under the facts in Hoffman-La Roche, the Court emphasized that the mandatory language in the disciplinary procedure in the handbook made no provision for deviation, reserved no discretion to the company, and contained no language stating that the list of inappropriate conduct was not all-inclusive. Furthermore, the Court in Hoffman-La Roche, 512 So. 2d at 734-35, noted the following:
(Citations omitted.) (Emphasis added.)
Clearly, in the instant case, the language in the Company's handbook, taken in its entirety, is not sufficiently specific to constitute an offer of employment. Rather, the handbook expressly reserves the Company's discretion to follow, to ignore, or to unilaterally add to or change the reasons for discipline and to deviate from the policies entirely. Specifically, the closing remarks in the handbook clearly evince the employer's intent not to be bound by the terms of the disciplinary provision:
In this case, the Company's employee handbook contains express disclaimers reserving the Company's right to deviate *622 from all the policies stated in that handbook. Stinson does not contest or dispute the existence of these disclaimers. Accordingly, Stinson could not reasonably conclude that the Company was committed to always adhere to the policy stated in the handbook; therefore, the handbook, as a matter of law, could not reasonably be construed as a unilateral contract of employment, modifying Stinson's employment-at-will status; the handbook, as a matter of law, could not be construed as constituting an enforceable contract of employment. Therefore, the trial court properly entered the summary judgment in favor of the defendants.
AFFIRMED.
HORNSBY, C.J., and SHORES and KENNEDY, JJ., concur.
JONES, J., concurs in the result. | September 14, 1990 |
7dad1882-c21e-46b1-8fa7-d96d491a26dd | Davis v. Genuine Parts Co. | 567 So. 2d 1275 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1275 (1990)
Golden DAVIS and Joan Davis
v.
GENUINE PARTS COMPANY, d/b/a NAPA Division Center.
89-471.
Supreme Court of Alabama.
August 31, 1990.
James E. Hill, Jr. of Hill & Weathington, Leeds, for appellants.
David M. Wilson of Clark & Scott, Birmingham, for appellee.
SHORES, Justice.
NAPA Division Center, a division of Genuine Parts Company, sued Golden Davis and his wife Joan Davis, claiming breach of contract and money due on open account. After hearing ore tenus evidence, the court entered a judgment in favor of NAPA for $20,628.08, plus costs. The court denied the Davises' motion for a new trial. The Davises appealed. We affirm.
*1276 NAPA alleges that it entered into a contract with the Davises whereby it agreed to change over the merchandise, inventory and stock of the Davises' auto parts store to NAPA parts and the Davises agreed to sell and market NAPA products in their store. The Davises admit that this agreement was made, but they claim that problems arose when Mr. Davis learned that NAPA expected him to buy products exclusively from NAPA and to keep defective and returned items in his inventory for four months. Within two weeks of the NAPA agreement, the Davises entered into another agreement, with Bumper to Bumper Auto Parts, for an exchange of the parts NAPA had placed in their store. The dispute in this case concerns the amount of money the Davises owed NAPA as a result of the original changeover by NAPA.
On appeal, the Davises argue that the trial judge erred in overruling objections to testimony about the amount of merchandise that NAPA removed from their store and the amount of NAPA merchandise that NAPA delivered to them. The Davises claim that no foundation was laid for the introduction of oral testimony as to the amount of merchandise removed or delivered. The amounts testified to, however, were later established by documentation entered into evidence by NAPA. The Davises now claim on appeal that NAPA introduced these exhibits without proper authentication and that the original documents rather than copies should have been offered.
A party who has failed to object to a matter at trial cannot raise the claimed error for the first time on appeal. "An objection must be made and a ground stated therefor or the objection and error are deemed to have been waived." Costarides v. Miller, 374 So. 2d 1335, 1337 (Ala.1979).
The Davises claim that the trial judge erred in denying their motion for a new trial because, they argue, the judgment was against the great weight and preponderance of the evidence. Conflicting evidence was presented concerning the amount the Davises owed NAPA. The trial judge's findings, in this ore tenus case, are entitled to a presumption of correctness, and his judgment will be affirmed unless it is palpably wrong, without supporting evidence, or manifestly unjust. Johnson v. Langley, 495 So. 2d 1061, 1066 (Ala.1986); Charles Israel Chevrolet, Inc. v. Walter E. Heller & Co., 476 So. 2d 71, 73 (Ala.1985). We conclude that the exhibits submitted by NAPA supported the judgment of the trial court, although the Davises argue otherwise. We cannot say that the judgment is palpably wrong, without supporting evidence, or manifestly unjust. The judgment of the trial court is therefore affirmed. Also, we cannot say that the judgment was against the weight of the evidence. Therefore, the trial court's denial of the Davises' motion for a new trial is also affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | August 31, 1990 |
ca7a19eb-a10d-419e-bace-f4a1b3416719 | King v. National Spa and Pool Institute | 570 So. 2d 612 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 612 (1990)
Barbara Briant KING, as Administratrix of the Estate of Kenneth A. Halpern, Deceased
v.
NATIONAL SPA AND POOL INSTITUTE, INC.
89-605.
Supreme Court of Alabama.
September 14, 1990.
Rehearing Denied October 19, 1990.
*613 Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellant.
Geary A. Gaston and William W. Watts of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
HOUSTON, Justice.
Barbara Briant King, as administratrix of the estate of Kenneth A. Halpern, deceased ("Ms. King's intestate"), appeals from a summary judgment in favor of National Spa and Pool Institute, Inc. ("the trade association"), made final pursuant to Rule 54(b), A.R.Civ.P. The only question presented to us is a question of first impression in this State: What duty, if any, does a manufacturer's trade association owe to a consumer to prevent injuries caused by the product of a manufacturer who is a member of that trade association?
In the fall of 1987, Ms. King's intestate purchased a house and a lot in Mobile, Alabama. There was an in-ground, vinyl-lined swimming pool that had been constructed in 1981 by Southern Leisure Pool and Supply Corporation ("Southern Leisure"), a defendant not involved in this appeal. The evidence before the trial court showed that the swimming pool met the trade association's "Suggested Minimum Standards for Residential Swimming Pools" ("standards") and was of the size, shape, and dimensions that the trade association prescribed for allowing the type of diving board that had been installed with the pool. In May, 1988, Ms. King's intestate dove into the pool from the diving board. He did not slip, trip, or otherwise go into the pool unintentionally. It can reasonably be inferred that Ms. King's intestate hit his head on the bottom or side of the pool and sustained a broken neck that caused permanent quadriplegia. Approximately eight and one-half months later, he died of pneumonia secondary to quadriplegia.
In opposition to the trade association's motion for summary judgment, Ms. King filed an affidavit of Dr. George E. Lawniazak, an expert in diving injuries and swimming pools. According to Dr. Lawniazak, even though the subject swimming pool met the trade association's minimum standards for allowing the type of diving board that had been installed for diving into the pool, the pool was defective and unreasonably dangerous for diving from the diving board. Also according to Dr. Lawniazak, the pool had inadequate dimensions, the water volume in the pool was inadequate for safe diving from the diving board, and the configuration of the pool was such that it was not safe for diving from the diving board.
Ms. King's theory of liability against the trade association is that the standards that allowed the placement of a diving board in this particular size pool created an unreasonable risk of harm.
Did the trade association owe Ms. King's intestate, the owner and a user of a pool manufactured and installed in accordance with the standards promulgated by the trade association, a duty? If not, Ms. King's action for negligence cannot lie, and the judgment must be affirmed. "If the defendant owed a duty, but did not owe it to the plaintiff, the action [for negligence] *614 will not lie." 1 Shearman & Redfield, On the Law of Negligence § 8 at 13-14 (6th ed.1913). See, also, Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928).
In Pugh v. Butler Telephone Co., 512 So. 2d 1317, 1319 (Ala.1987), this Court held:
(Emphasis supplied.)
A legal duty is "an obligation arising from a contract of the parties or the operation of the law." Black's Law Dictionary 804 (5th ed.1979).
A legal duty to exercise care, therefore, arises where the parties are bound by contract, Pugh v. Butler Telephone Co., supra, or where the obligations are "expressly or impliedly imposed by statute, municipal ordinance, or by administrative rules or regulations, or by judicial decisions." 57 Am.Jur.2d, Negligence § 36 at 382 (1988).
There are no allegations that a contract existed between the trade association and Ms. King's intestate or that Ms. King's intestate was a third-party beneficiary of a contractual relationship between Southern Leisure and the trade association or that the trade association violated any statutes, ordinances, or rules or regulations enacted or promulgated to protect Ms. King's intestate.
There is no duty imposed by judicial decision on trade associations to promulgate industry standards.
Therefore, the trade association had no statutorily or judicially imposed duty to formulate standards; however, it did so. It is well settled under Alabama law that one who undertakes to perform a duty he is not otherwise required to perform is thereafter charged with the duty of acting with due care. Rudolph v. First Southern Federal Savings & Loan Ass'n, 414 So. 2d 64 (Ala.1982). This is in accord with Justice Cardozo's classic case, Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276, 23 A.L.R. 1425 (1922):
The Restatement (Second) of Torts § 324A (1966), states:
Ms. King's intestate did not know of the trade association's standards, so clearly he did not rely on them when he dove into his pool. However, if the manufacturer or installer of the pool relied on the standards promulgated by the trade association in constructing or installing the pool, the trade association could be liable under the principles of § 324A(b) and/or (c), which state the law of Alabama.
The "Foreword" to the standards read as follows:
(Emphasis supplied.)
This was followed by the names of the members of the Standards and Codes Committee and the names and addresses of the companies (e.g., Gary Aquatech Pools, Inc.), agencies (e.g., National Safety Council), or institutions (e.g., Yale University) with which the committee members were affiliated. After certain phrases or words were defined in the standards, there were 15 pages of "minimum standards" relating to (1) structural design, (2) dimensional design, (3) materials of construction, (4) deck equipment (steps, ladders, stairs, diving boards, and platforms), (5) safety features, (6) electrical requirements, (7) water supply, (8) inlets and outlets, (9) recirculation systems (piping, fitting, filters, skimmers), (10) skimmers, (11) filters, (12) pumps and strainers, (13) valves, (14) chemical feeding equipment, and (15) waste water disposal. The section on dimensional design was the most detailed, and it divided pools into five types. Type one included any residential pool where the installation of diving equipment was prohibited. The other four types included residential pools that were suitable for the installation of diving equipment of one of four classifications. The last subsection of the dimensional design standard read as follows:
The Appendix to the Standards specifically states that "one of the basic considerations upon which these design and construction standards are founded is safety."
On the cover sheet of the standards, the following appears: "COMPLIANCE BY: January 1, 1974."
In Bush v. Alabama Power Co., 457 So. 2d 350, 353 (Ala.1984), this Court held: "The ultimate test of a duty to use [due] care is found in the foreseeability that harm may result if care is not exercised." In Palsgraf, supra, Justice Cardozo wrote: *616 "[T]he eye of vigilance perceives the risk of damage.... The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." 248 N.Y. at 344, 162 N.E. at 100.
In the instant case, the standards refer to "the needs of the consumer," e.g., Ms. King's intestate. In the instant case, a label showing that diving equipment must meet the standards was required to be permanently affixed to the pool or deck. But for whose benefit? For the benefit of the consumer, e.g., Ms. King's intestate. In the instant case, the appendix to the standards states that "safety" is one of the basic considerations upon which the design and construction standards are founded. Whose safety? That of the consumer, e.g., Ms. King's intestate.
Based on the foregoing, we hold that the trade association was under a legal duty to exercise due care in promulgating the standards in question. The trade association's voluntary undertaking to promulgate minimum safety design standards for safe diving from diving boards installed in residential swimming pools (such standards being based on studies of the "needs of the consumer" and founded on a consideration of "safety" involved in the design and construction of such swimming pools) and to disseminate those standards to its members for the purpose of influencing their design and construction practices, made it foreseeable that harm might result to the consumer if it did not exercise due care.
In Alabama, evidence that a defendant manufacturer complied with or failed to comply with industry standards, such as the standards promulgated by the trade association in this case, is admissible as evidence of due care or the lack of due care. Elmore County Commission v. Ragona, 540 So. 2d 720 (Ala.1989); Dunn v. Wixom Bros., 493 So. 2d 1356 (Ala.1986). Such evidence is not conclusive on this issue, but is evidence of due care or lack of due care, to be evaluated by the trier of fact with other evidence on this issue.
We have carefully reviewed the cases from other jurisdictions[1] cited by the trade association in support of its position. We note that some of those cases involve varying fact situations as well as varying theories on which the negligence claims are grounded. However, the underlying rule of law, the rationale on which those cases were decided, is the same and is best stated in Meyers v. Donnatacci, 220 N.J.Super. 73, 531 A.2d 398 (1987) (a case of first impression in New Jersey), which did not involve allegations of negligence on the part of the trade association in promulgating standards for the design and construction of pools, but, instead, involved the trade association's non-feasance in failing to take action to prevent users of pools from diving from the side of a pool into shallow water:
Meyers v. Donnatacci, 220 N.J.Super. at 81-89, 531 A.2d at 402-07.
As previously noted, Meyers involved the failure on the part of a trade association to take any action to prevent users of pools from diving from the side of a pool into shallow water. It did not involve allegations of negligence on the part of a trade association in promulgating standards for the design and construction of pools, as does the case at issue. Therefore, although we might have reached the same result under the facts in Meyers as the New Jersey Superior Court did, we find that court's rationale not to be in accordance with general principles of Alabama law and, thus, unpersuasive. In our view, the fact that the standards promulgated by a trade association are based on a voluntary consensus of its members, or the fact that a trade association does not specifically control the actions of its members, does not, as a matter of law, absolve the trade association of a duty to exercise reasonable care when it undertakes to promulgate standards for the "needs of the consumer."
For the foregoing reasons, we reverse the judgment and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Beasock v. Dioguardi Enterprises, Inc., 130 Misc.2d 25, 494 N.Y.S.2d 974 (Sup.Ct.1985); Friedman v. F.E. Myers Co., 706 F. Supp. 376 (E.D.Pa.1989); Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291 (1962); Gunsalus v. Celotex Corp., 674 F. Supp. 1149 (E.D.Pa. 1987); Howard v. Poseidon Pools, Inc., 133 Misc.2d 50, 506 N.Y.S.2d 523 (Sup.Ct.1986), aff'd, 134 A.D.2d 926, 522 N.Y.S.2d 388 (1987); Klein v. Council of Chemical Associations, 587 F. Supp. 213 (E.D.Pa.1984); Meyers v. Donnatacci, 220 N.J.Super. 73, 531 A.2d 398 (1987). | September 14, 1990 |
30c4d00d-4688-4718-8a6e-c46b0afcde4c | Ramsey v. Taylor | 567 So. 2d 1325 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1325 (1990)
Robert S. RAMSEY
v.
Richard H. TAYLOR.
89-410.
Supreme Court of Alabama.
September 14, 1990.
*1326 Richard E. Browning of Briskman, Binion & Browning, Mobile, for appellant.
Broox G. Holmes and William H. Philpot, Jr., of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
PER CURIAM.
Robert S. Ramsey filed an action against Richard Taylor, alleging breach of a contract that Taylor had entered into with Ramsey & Middlebrooks, P.C., a professional corporation organized for the practice of law in which Ramsey, a practicing attorney, owned 51% of the shares of stock. Buster Middlebrooks, a practicing attorney, owned 49% of the shares. The trial court granted Taylor's motion for summary judgment, and Ramsey appeals.
Richard Taylor is a licensed practicing attorney in Mobile. In January 1988, while working as a sole practitioner, he began representation of a plaintiff, Mr. Billy Gill, in a personal injury action. Taylor realized that he would need assistance in Gill's case and accordingly entered into a contract with Ramsey & Middlebrooks, P.C. That contract outlined the terms of the corporation's association with Taylor in the Gill case. Gill was to remain Taylor's client.
In July 1988, Ramsey withdrew from Ramsey & Middlebrooks, P.C., and tendered all of his shares of stock in the corporation. Ramsey made arrangements with Middlebrooks regarding the handling of the Gill case and the division of any proceeds received from it. The name of the corporation was changed to Middlebrooks & Fleming, P.C. and Middlebrooks became the sole stockholder and president of the corporation. Charles Fleming was another lawyer who worked for Ramsey & Middlebrooks, P.C., and who had worked extensively with Taylor on the Gill case.
Shortly after Ramsey left Ramsey & Middlebrooks, P.C., Taylor terminated his contract with that corporation. Taylor asked Ramsey to prepare a bill for the expenses and hourly work due the corporation on the Gill case. Taylor paid the corporation for its expenses; however, Ramsey never submitted a bill for hourly fees that Taylor owed the corporation, and Taylor did not pay Ramsey & Middlebrooks, P.C. for any such fees.
After Ramsey left the corporation, Fleming performed some additional work on the Gill case. In August 1988, Middlebrooks & Fleming, P.C., entered into a contract with Taylor to continue work on the Gill case on a contingency basis. The Gill case was settled in March 1989, and Taylor paid Middlebrooks & Fleming, P.C., its contingency fee in accordance with the contract.
Ramsey filed this action against Taylor, not Middlebrooks. He seeks no recovery from Middlebrooks, with whom he alleges that he had an agreement to split the proceeds of the fees from the Gill case, but instead he seeks recovery from Taylor for Taylor's alleged breach of the contract with Ramsey & Middlebrooks, P.C.
*1327 Ramsey, through this action, seeks in his individual capacity to enforce the rights of Ramsey & Middlebrooks, P.C. He cannot bring a shareholder's derivative action, because he was not a shareholder of that corporation at the time the action was filed. Rule 23.1, A.R.Civ.P.; Green v. Bradley Construction, Inc., 431 So. 2d 1226, 1229 (Ala.1983). Accordingly, the threshold inquiry is whether Ramsey may otherwise bring this action on behalf of the corporation.
According to Rule 17(a), A.R.Civ.P., an action must be prosecuted in the name of the real party in interest. Ramsey's action arose out of a contract entered into by Taylor with Ramsey & Middlebrooks, P.C., not with Ramsey individually. It has long been settled that "[a] corporation, just like an individual, must enforce its own rights and privileges." Russell v. Birmingham Oxygen Service, Inc., 408 So. 2d 90, 93 (Ala.1981). There is nothing in the record to indicate that Ramsey and not the corporation is the real party in interest. Accordingly, the action for breach of contract would be properly brought by the corporation, not by Ramsey. Rule 17(a), A.R.Civ.P.; Dean v. Sfakianos, 472 So. 2d 1009, 1012 (Ala.1985). See also Zadek v. Merchants' Bank of Mobile, 204 Ala. 396, 85 So. 552, 553 (1920); Stevens v. Lowder, 643 F.2d 1078, 1080 (5th Cir.1981).
Ramsey argues, nevertheless, that he was an intended third-party beneficiary of the contract between Taylor and the corporation and is therefore entitled to bring this action for breach of contract. In Collins Co. v. City of Decatur, 533 So. 2d 1127, 1132 (Ala.1988), we discussed what one must prove in order to recover as a third-party beneficiary:
Citing Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So. 2d 99, 101-02 (Ala.1987).
If the benefit to the third person is not intended to be a direct benefit but rather to be merely an incidental benefit, the third person is not entitled to recover under a third-party beneficiary theory. Collins Co., at 1132; Stacey v. Saunders, 437 So. 2d 1230, 1232 (Ala.1983). Nothing in the record indicates that the contract was intended to benefit Ramsey as an individual directly. Indeed, the contract is addressed toward benefiting Ramsey & Middlebrooks, P.C., which, of course, would incidentally benefit Ramsey as an individual, because he was the majority stockholder in the corporation.
The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur. | September 14, 1990 |
54d6a4da-dbc8-41c1-bda9-9de6d6372ff2 | Aplin v. American SEC. Ins. Co. | 568 So. 2d 757 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 757 (1990)
James E. APLIN, as Administrator of the Estate of Reba S. Aplin, Deceased
v.
AMERICAN SECURITY INSURANCE COMPANY, a Corporation.
AMERICAN SECURITY INSURANCE COMPANY, a Corporation
v.
James E. APLIN, as Administrator of the Estate of Reba S. Aplin, Deceased.
89-234, 89-277.
Supreme Court of Alabama.
September 7, 1990.
*758 Rufus R. Smith, Jr. of Farmer, Price, Smith, Hornsby & Weatherford, Dothan, for appellant/cross appellee.
Joey Hornsby of Buntin, Cobb & Shealy, Dothan, for appellee/cross-appellant.
ALMON, Justice.
These appeals arise out of the refusal by American Security Insurance Company ("American") to defend an action and pay a claim filed by its insured, Reba Aplin, after she was involved in an automobile accident. Following that refusal, Aplin filed a twocount complaint seeking a declaration of her rights under her insurance policy, and asserting a claim of bad faith failure to pay a claim.[1] The trial judge entered a summary judgment in favor of Aplin on the first count, ordering American to defend Aplin and pay damages within the policy limits, and entered a summary judgment in favor of American on the bad faith claim.
Aplin appeals from the summary judgment on the bad faith claim, and American cross-appeals from the summary judgment on the claim for declaratory relief. Because proof of the existence of an insurance contract between the parties is a threshold requirement in a bad faith claim, Tyson v. Safeco Ins. Co., 461 So. 2d 1308, 1311 (Ala.1984), this Court will address American's cross-appeal first.
Aplin's driver's license was suspended in 1983. In order to have her license reinstated, *759 she obtained a collision and liability automobile insurance policy from American. In accordance with the provisions of the Motor Vehicle Safety-Responsibility Act ("Act"), Ala.Code 1975, §§ 32-7-1 et seq., a "Form SR-22," or financial responsibility insurance certificate, that named American as Aplin's insurer, was filed with the Department of Public Safety. That form, which was signed by an authorized American representative, contained the following provision:
There is no dispute that the policy referred to in that form remained in force until December 1, 1987.
On October 29, 1987, American sent Aplin a notice that her policy would expire on December 1, 1987, unless renewed before that date. Aplin did not renew her policy before December 1, 1987, and denied receiving that notice. On December 18, 1987, Aplin was involved in the automobile accident that gave rise to this dispute. On that date, Aplin paid American's agent her renewal premium and later notified that agent that she had been involved in an accident. American's agent stated that she told Aplin that her policy had lapsed and that any coverage that might be provided by the late premium would be prospective only. Aplin denied being told that. American negotiated Aplin's check, and an adjuster examined the cars involved in Aplin's accident. However, on January 15, 1988, American notified Aplin that her coverage did not begin until December 19, 1987, and refused to pay her claim or defend her in an action filed by the driver of the other automobile in the accident.
Aplin then filed this action against American. The trial judge held that American's failure to file a notice of cancellation with the director of the Department of Public Safety, as required by Ala.Code 1975, § 32-7-24, rendered its attempt to terminate Aplin's policy ineffective. However, the trial judge found that no issue of material fact existed as to Aplin's bad faith claim and that on that claim American was entitled to a judgment as a matter of law.
Section 32-7-24 requires an insurer to file a notice of its intent to cancel or terminate a compulsory liability insurance policy:
This requirement, as well as the other requirements set out in the Act, are binding on all insurers who issue compulsory automobile liability insurance policies:
American Southern Ins. Co. v. Dime Taxi Service, Inc., 275 Ala. 51, 56, 151 So. 2d 783, 786 (1963). See also, Annot., 44 A.L.R. 4th 13 (1986).
American concedes that it failed to comply with § 32-7-24. However, it argues that its obligation to file a notice with the director of the Department of Public Safety expired three years after the insurance policy was issued, a date preceding its attempted cancellation of Aplin's policy. That argument is based on language contained in § 32-7-31, reproduced, in pertinent part, below:
(Emphasis added.)
American does not contend that it requested the director to cancel the certificate of insurance it issued on Aplin's behalf. Due to American's failure to comply with either § 32-7-24 or § 32-7-31, Aplin's policy remained in effect through the date of her accident by operation of law, and the trial court correctly granted her motion for summary judgment as to the first count of her complaint.
In order to present a prima facie case of bad faith refusal to pay an insurance claim, the insured must prove: (1) the existence of an insurance contract between the parties, and a breach thereof by the insurer; (2) an intentional refusal to pay the insured's claim; (3) the absence of any reasonably legitimate or arguable reason for refusal; (4) the insurer's actual knowledge of the absence of any legitimate or arguable reason; and (5) if the intentional failure to determine the existence of a lawful basis is relied upon, the insured must prove the insurer's intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim. National Security Fire & Casualty Co. v. Bowen, So.2d 179, 183 (Ala. 1982).
In the instant case, it cannot be said that American's reasons for refusing to pay Aplin's claim had no debatable legal or factual basis. An insurer is not liable in a bad faith action simply because it has exercised poor judgment or has been negligent. An action alleging bad faith must be supported by evidence showing that the insurer had no reasonably arguable ground for disputing the insured's claim or that it acted with an intent to injure. Blue Cross-Blue Shield of Alabama, Inc. v. Granger, 461 So. 2d 1320, 1325-26 (Ala.1984). Such is not the case here. Although its decision was not correct, American had debatable reasons for denying Aplin's claim, most notably her failure to renew the policy in a timely manner. Therefore, the summary judgment on the bad faith claim was proper.
The trial court's ruling on each of the two counts in Aplin's complaint was correct, and the summary judgments are affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Aplin died after filing her complaint against American, from causes unrelated to this action. Her husband, as the administrator of her estate, was substituted as the plaintiff. Both will be referred to as "Aplin." | September 7, 1990 |
8cd58e51-0e25-42a8-9f77-2271bb6c7d9b | Lyons v. Williams | 567 So. 2d 1280 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1280 (1990)
Dock LYONS, et al.
v.
Betty Lyons WILLIAMS, as administratrix of the Estate of John Wesley Lyons, deceased.
89-731.
Supreme Court of Alabama.
August 31, 1990.
Nathan G. Watkins, Jr. of Pruitt, Pruitt & Watkins, Livingston, for appellants.
G. Stephen Wiggins of Roberts, Davidson & Wiggins, Tuscaloosa, for appellee.
SHORES, Justice.
Betty Lyons Williams, as administratrix of the estate of John Wesley Lyons, sued Dock Lyons, Calvin Lyons, Frank Gibson, and various other relatives, alleging that the defendants had converted property belonging to the estate of John Wesley Lyons. Specifically, the plaintiff claimed that the deceased, who was her father, had kept cash, believed to be in excess of $75,000, hidden at his home. She further claimed that, after her father's death, his brother Dock Lyons took the hidden cash, divided it among certain relatives, and kept a portion for himself.
After an ore tenus trial, the court entered a judgment against defendants Artress Cornmesser and Ailene Webb for $1000 each, and for $20,000 against defendants Dock Lyons, Calvin Lyons, and Frank Gibson, jointly and severally. Dock Lyons, Calvin Lyons, and Frank Gibson appealed, claiming that the evidence was not sufficient to support the $20,000 judgment against them. The appellants admit that they took money from the estate and divided it among various family members after paying funeral expenses, but they claim that they took only $10,000, not $75,000 as claimed by the appellee. The evidence produced at trial indicated the following facts:
*1281 John Wesley Lyons lived in a one-room house with a tin roof and no running water. Mr. Lyons did repair jobs on heaters and stoves and received $325 a month in Social Security benefits. He once received a $9000 settlement for injuries sustained in an automobile accident. There was evidence that he saved and never spent much money. Frank Gibson testified that he found some money in a money bag in a bus outside John Wesley Lyons's home while Mr. Lyons was in the hospital dying. He testified that Dock Lyons told him to put the bag in Dock's truck, which he says he did. A few days later, after John Wesley Lyons had died, Dock Lyons gathered Gibson, John Lyons, and Calvin Lyons together to count the money. Dock and Gibson both claim that $10,000 was counted. Dock claims he distributed the money by giving $2000 to Betty Lyons Williams, $1000 to Ms. Williams's sister Sarah Bridges, $1000 to his niece Ailene Webb, $1000 to his niece Artress Cornmesser, $1000 to his daughter Hiever Lyons, $1000 to his daughter Mary Dean Lyons, $1000 to his grandson-in-law Frank Gibson, $200 to his son Matthew McMiller, $200 to his daughter Geraldine Robinson, and $200 to Mary Miller. Before trial, Frank Gibson, Hiever Lyons, Mary Dean Lyons, and Mary Miller returned to the plaintiff the amounts Dock claimed he gave them. Dock also testified that he used $1074 to pay funeral expenses, but he could not account for the remaining $326 of the claimed $10,000. Betty Williams, the plaintiff, testified that she asked Dock for $5000 and told him to take the rest but that he said he had to give some of the money to other relatives. She also testified that Dock told her that he was keeping $5000 for himself and giving other family members some of the money. Geraldine Robinson testified that Dock told her that $75,000 had been found, that he had put $5000 in a bank in Aliceville, and that he had given the rest to her brother Calvin to put in a credit union in Chicago. Dock testified that he bought an automobile for $2700 and tires for $300 a few days after his brother died and that $1000 of the money for the car came from a bank account he had in Aliceville and $2000 came from the trunk of his old car. The Aliceville bank had no records of this account. Dock testified that, a week after his brother died, he went to the bank in Aliceville with Calvin and that Calvin set up a $5000 account there. Dock claimed that Calvin had brought this money with him from Chicago.
The judgment of a trial court based on ore tenus evidence is presumed correct and its findings "will not be disturbed on appeal unless they are palpably wrong, manifestly unjust, or without supporting evidence." McCoy v. McCoy, 549 So. 2d 53, 57 (Ala.1989). The trial court specifically found that Dock Lyons, Calvin Lyons, and Frank Gibson "willfully and intentionally retain[ed] money from the Estate of John Lyons and that they ... together conspired to withhold said money from the estate." The trial court did not make a specific finding as to how much money was taken from the Lyons estate, and did not indicate whether the $20,000 award against the appellants was entirely compensatory or included punitive damages. Although the evidence was conflicting, there was evidence that more than $10,000 was taken. There was also evidence that each of the appellants aided in taking and distributing the money. The trial court's finding of willful and intentional acts by the appellants justified an award of punitive damages against them. Rainsville Bank v. Willingham, 485 So. 2d 319, 322 (Ala.1986). Thus, we cannot say that the trial court's findings were "palpably wrong, manifestly unjust, or without supporting evidence." The judgment is therefore affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | August 31, 1990 |
88660736-17b9-402a-b32f-0508f51feab3 | MILTON CONST. CO. v. State Highway Dept. | 568 So. 2d 784 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 784 (1990)
MILTON CONSTRUCTION COMPANY, INC.
v.
STATE of Alabama HIGHWAY DEPARTMENT, et al.
89-514.
Supreme Court of Alabama.
September 14, 1990.
*785 Rodney A. Max and Denise J. Lord of Najjar, Denaburg, Meyerson, Zarzaur, Max, Wright & Schwartz, Birmingham, for appellant.
Jack F. Norton, Jerry L. Weidler and Janie Baker Clarke, Montgomery, for appellees.
Truman M. Hobbs, Jr. of Copeland, Franco, Screws & Gill, Montgomery, for amicus curiae Hardaway Co.
HOUSTON, Justice.
This is an appeal from a summary judgment in favor of the defendants, the State of Alabama, State of Alabama Highway Department, and Royce King, as director of the State of Alabama Highway Department (hereinafter collectively referred to as "Highway Department"). The plaintiff, Milton Construction Company ("Milton"), had sought a judgment declaring that the disincentive clause of an incentive/disincentive payments provision in each of two highway construction contracts that it had entered into with the Highway Department was void and unenforceable as a penalty and requested that the trial court order the Highway Department to pay Milton the amounts of disincentive payments that it withheld.
The issues before us are whether a clause of a construction contract that authorizes the withholding of disincentive payments is void and unenforceable as a penalty; whether Milton is estopped from asserting a claim that the disincentive clause is void where it has previously received incentive compensation pursuant to the incentive clause of the incentive/disincentive payments provision in a prior contract; and whether the trial court erred in failing to strike an affidavit allegedly based on hearsay.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R. Civ.P. All inferences must be viewed in the light most favorable to the nonmoving party, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. See Wilson v. Brown, 496 So. 2d 756 (Ala.1986); see, also, McMillian v. Wallis, 567 So. 2d 1199 (Ala.1990). This case was filed after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence" rule. Ala.Code 1975, § 12-21-12; see, also, Watters v. Lawrence County, 551 So. 2d 1011 (Ala. 1989); see, also, Koch v. State Farm Fire & Casualty Co., 565 So. 2d 226 (Ala.1990).
The facts of this case are substantially undisputed. The Highway Department and Milton entered into contracts for widening and repairing a portion of Interstate Highway 65 (hereinafter referred to as the "I-65 *786 Project")[1] in Jefferson County and for concrete pavement rehabilitation of, and the addition of median lanes to, a portion of Interstate Highway 59 (hereinafter referred to as the "I-59 Project")[2] in Jefferson County.
The total cost of the I-65 Project was $7,745,320.29, and the total cost of the I-59 Project was $4,399,883.25. Subsequent to the filing of this lawsuit, the parties stipulated to all amounts due and payable to Milton (which have now been paid) except for the disputed amounts of $300,000 and $240,000 that the Highway Department deducted from Milton's contract price for the I-65 and I-59 Projects, respectively, pursuant to an incentive/disincentive payments provision. (The incentive clause of the incentive/disincentive payments provision is not at issue.)
The incentive/disincentive payments provision[3] of each contract reads, in pertinent part, as follows:
(Emphasis added.)
In addition, each contract contained a provision for recovery of actual damages, found in Article 108.12 ("Default of Contract"). It provides, in pertinent part, as follows:
(Emphasis added.)
Furthermore, each contract contained a clause for liquidated damages.[4] Article 108.11 ("Failure to Complete Work Within Contract Time") reads, in pertinent part, as follows:
(Emphasis added.)
According to Milton, each contract also contained provisions by which the Highway Department could control its performance and the rate of its performancethe Highway Department could allegedly disqualify Milton from further State work if Milton failed to maintain a satisfactory rate of progress (Article 108.04"Prosecution of Work") and could suspend the work if Milton failed to carry out orders or perform provisions of the contract (Article 108.07 "Temporary Suspension of Work").
Milton exceeded the time stipulated in the contract for completion of the I-65 Project by 156 days, and the Highway Department assessed Milton liquidated damages in the amount of $93,600 ($600 per calendar day for 156 days) and imposed the maximum disincentive of $300,000. Milton exceeded the time stipulated in the contract for completion of the I-59 Project by 72 days, and the Highway Department assessed Milton liquidated damages in the amount of $32,400 ($450 per calendar day for 72 days) and imposed the maximum disincentive of $240,000. Milton does not dispute the enforceability of the liquidated damages provisions. Milton does, however, dispute the enforceability of the disincentive clause of each contract, contending that the clause is void as a penalty, and therefore is unenforceable, and requests that the trial court order the Highway Department to pay Milton the amounts of disincentive payments that it withheld.
Is the disincentive clause of the incentive/disincentive provision of the contracts a penalty?
5 Williston on Contracts § 778 at 686 (3d ed. 1961).
We note that the Alabama Constitution of 1901 has a strong preference for the protection of contractual obligations. The Constitution prohibits the impairment of contractual obligations by the legislative and judicial branches of state government. *788 See Article I, § 22 ("[no] law, impairing the obligations of contracts, ... shall be passed by the legislature") and Article IV, § 95 ("[t]here can be no law of this state impairing the obligation of contracts by destroying or impairing the remedy for their enforcement").
We recognize the right of freedom of contract, which is well expressed in 17 Am. Jur.2d Contracts, § 178 (1964):
(Emphasis added.)
Even so, we recognize the well-settled law in Alabama that penalty provisions are void as against public policy and that courts are "`disposed to lean against any interpretation of a contract which will make the provision one for liquidated damages and, in all cases of doubtful intention, will pronounce the stipulated sum a penalty.' " See Camelot Music, Inc. v. Marx Realty & Improvement Co., 514 So. 2d 987, 990 (Ala.1987), quoting Cook v. Brown, 408 So. 2d 143, 144 (Ala.Civ.App.1981).
In Williston on Contracts § 776-88 (3d ed. 1961), Professor Williston ably discusses penalty provisions in contracts:
Id. at 670-72.
In regard to a contract as to which there appears an admission that the provision was included to serve only as an added spur to performance and not to make a fair estimate of damages to be suffered, "[i]t is well-settled contract law that courts do not give their imprimatur to such arrangements." Id. at 676.
An essential step toward understanding this matter is to recognize that "`[t]he question is not what the parties intended, but "whether the sum is in fact in the nature of a penalty."'" Id. at 682.
Id. at 689-90.
Id. at 694.
Id. at 698.
Id. at 737-38.
Id. at 760-61.
With this theory of law in mind, we address the issue whether the disincentive provision in the contracts at issue is a penalty and therefore is void as against public policy.
It is undisputed that the contracts at issue provide for both liquidated damages and disincentive payments. It is also undisputed that the stated purpose of the incentive/disincentive payments provision of each contract was to ensure "the earliest possible date for completion of the project." In order to achieve that purpose, did the disincentive clause penalize Milton? Was the clause security for performance or was it a punishment for default?
A penalty is in essence a security for performance designed to punish one party for breach of contract, whereas a liquidated damages provision is a sum to be paid in lieu of performance (a sum that the parties agree upon as an adequate assessment of damages that would result from a possible breach). See Camelot Music, Inc. v. Marx Realty & Improvement Co., Cook v. Brown, supra; see, also, Forsyth v. Central Foundry Co., 240 Ala. 277, 198 So. 706 (1940); Standard Tilton Milling Co. v. Toole, 223 Ala. 450, 137 So. 13 (1931).
Restatement of Contracts, § 339 at 554 (1932). (Emphasis added.)
Although Camelot Music, Inc. v. Marx Realty & Improvement Co., supra, established an analysis to determine whether a liquidated damages provision must fail as a penalty, that analysis applies equally well to a determination whether a disincentive clause must fail as a penalty. In Camelot Music, Inc., supra, we cited three criteria by which a stipulated damages clause may be characterized as liquidated damages as opposed to a penalty:
514 So. 2d at 990, citing C. Gamble and D. Corley, Alabama Law of Damages § 5-4 (1982). If one of these three criteria is not met, the clause must fail as a penalty. Applying the three criteria to the facts of the instant case, we find that the disincentive *791 clause at issue clearly constitutes a penalty and therefore is void as a matter of public policy.
First, in each contract, the amount of injury caused by delay had already been determined, assessed, and withheld. Furthermore, any other injury that the Highway Department would suffer was addressed in the "Default Clause," which allowed recovery of "all costs and charges incurred by the [Highway] Department, together with the cost of completing the work under contract." The recovery of "all costs" by the Highway Department upon Milton's default in either the I-65 Project or in the I-59 Project, along with the additional recovery of liquidated damages for delay, would certainly "justly compensate" the Highway Department for any injury; any further compensation would pass the limit of reasonableness. Even Federal Highway Administration Advisory T5080.10 (February 8, 1989), which allows for incentive/disincentive provisions, states as follows:
The Highway Department failed to do this in the I-65 Project and in the I-59 Project; thus, the Highway Department received more than a double recovery for the same damages. Such compensation is totally out of proportion to the damages incurred and thus is unreasonable. In addition, according to Camelot Music, Inc., supra, the parties must actually intend, by the stipulated damages clause, to provide for damages rather than for a penalty. The evidence in the instant case revealed that the Highway Department unilaterally decided to include a disincentive clause in its contracts prior to any negotiations with Milton and prior to Milton's involvement in the I-65 or I-59 Projects. Thereafter, contractors bid on the projects with the disincentive clause included as part of the bid documents, not as a negotiated term or condition.
Furthermore, according to the complaint, the clear language of each contract indicates that the purpose of the disincentive clause was to encourage early completion of the contract"the contractor's attention is directed to the fact that it is in the public's interest to complete this project at the earliest possible date"and not as compensation for any delay caused to the Highway Department or to the public. Therefore, the disincentive clause clearly acts as a discouragement or penalty for late completion. Thus, the Highway Department is using the disincentive clause as security for the performance of the contract through acts of financial punishment, a result that Alabama law does not allow. See Camelot Music, Inc., supra; and Standard Tilton Milling Co., supra.
The third criterion set forth in Camelot Music, Inc., supra (that the stipulated sum must be reasonable) is applied after the fact and measures whether the sum stipulated did in fact reasonably approximate the actual injury that previously was unascertainable; in essence, whether the disincentive clause bears a rational relation to the injury incurred. The Highway Department concedes that it arbitrarily set the dollar amount of the per-day assessment and the maximum time limit for the assessment in the disincentive clause. From our review of the record, we conclude that these arbitrary calculations had no correlation to the damages that the Highway Department sustained; therefore, considering the fact that liquidated damages had already been assessed and withheld from Milton, we must conclude that the disincentive clause does not compensate for the injury that occurred, but rather attempts to coerce performance and results in disproportionate, unreasonable compensation. Such a purpose is penal in nature and is therefore invalid.
Based on the foregoing, we hold that the trial court erred in failing to declare the disincentive clause void as a penalty and therefore unenforceable.
*792 The Highway Department contends that, because Milton had previously received incentive compensation pursuant to the incentive/disincentive payments provision, it is estopped from asserting that the disincentive clause of that provision is void.
In the instant case, the validity of the incentive clause of the provision is not at issue. Rather, the essence of the Highway Department's argument seems to be that the presence of the incentive clause in the incentive/disincentive payments provision and Milton's acceptance of bonus compensation pursuant to that provision in a previous contract estops Milton from asserting that the disincentive clause of the incentive/disincentive provision is a penalty. We disagree.
Williams v. FNBC Acceptance Corp., 419 So. 2d 1363, 1367 (Ala. 1982).
Milton does not, nor did it ever, contend that the payment of an incentive for early completion was not valid. What it does contend, however, is that the withholding of disincentive payments for late completion is a void and unenforceable penalty. Milton's position concerning incentive payments for early completion is not inconsistent with its position concerning disincentive amounts withheld for late completion; Milton's contentions are not contrary to equity and good conscience.
Furthermore, in Standard Chemical Co. v. Barbaree, 239 Ala. 601, 195 So. 892 (1940), we held that "[i]t is generally considered that as between parties to a contract, validity cannot be given to it by estoppel if it is prohibited by law or is against public policy." Likewise, in the instant case, we hold that as between Milton and the Highway Department, validity cannot be given to the disincentive clause of the incentive/disincentive payments provision by estoppel, because the disincentive clause is against public policy.
We also note Milton's contention that the trial court erred in failing to strike an affidavit that Milton says contained unqualified opinion and hearsay testimony. Because of our resolution of the casethat the disincentive clause of the contract provides for a penalty and thereby is void and unenforceable, as a matter of public policywe pretermit any discussion of this issue.
Therefore, we reverse the judgment and remand the cause for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The I-65 Project was a contract that Milton entered into with the Highway Department for the construction of Federal Aid Interstate Project Number I-65-2 (106) 256 in Jefferson County, Alabama.
[2] The I-59 Project was a contract that Milton entered into with the Highway Department for the construction of Federal Aid Interstate Project Number ACIR-59-1 (156) 119 in Jefferson County, Alabama.
[3] The incentive/disincentive payments provision in the I-65 Project is found in Special Provision No. 924 and in the I-59 Project is found in Special Provision No. 1320.
[4] The liquidated damages provisions in the two contracts are identical, except as to amount; the liquidated damages amount specified in the I-65 Project was $600 per day and the liquidated damages amount specified in the I-59 Project was $450 per day. | September 14, 1990 |
3805adbd-7b57-4820-9262-c936ad86bd7c | Ex Parte Wesley | 575 So. 2d 127 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 127 (1990)
Ex parte Ronald Harvey WESLEY.
(Re Ronald Harvey Wesley v. State).
89-711.
Supreme Court of Alabama.
September 28, 1990.
Rehearing Denied November 2, 1990.
Al Pennington, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson and William D. Little, Asst. Attys. Gen., for respondent.
HOUSTON, Justice.
After a jury had convicted Ronald Harvey Wesley of capital murder and recommended that he be punished by life imprisonment without parole, the trial court sentenced him to death by electrocution. The Court of Criminal Appeals affirmed Wesley's conviction and sentence. See Wesley v. State, 575 So. 2d 108 (Ala.Crim.App. 1989). We granted Wesley's petition for a writ of certiorari, pursuant to Rule 39(c), A.R.App.P. We reverse and remand.
Wesley was convicted of the intentional killings of Nikita Jackson and Lorraine Wesley. In support of his defense of legal insanity, Wesley presented the testimony of Claude L. Brown, M.D. (a psychiatrist), and C. Van Rosen, Ph.D. (a psychologist), both of whom testified that, at the time of the killings, Wesley was suffering from paranoid schizophrenia, was psychotic, and could not have appreciated the criminality of his conduct.
In rebuttal, the prosecution presented the testimony of Kamal Nagi, M.D. (a psychiatrist), and Harry Elbert McClaren, Ph.D. (a psychologist), both of whom testified that, on the date in question, Wesley could have appreciated the criminality of his conduct. The testimony of Dr. McClaren, to which at the sentencing hearing the trial court attached "great[er] significance" and "more weight" than he attached to that of Drs. Brown and Rosen, is, in pertinent part, as follows:
Neither the police reports nor the medical records upon which Dr. McClaren relied in order to formulate his opinion were in evidence. It is his testimony based on these reports and records that is at issue.
Brackin v. State, 417 So. 2d 602, 606 (Ala. Crim.App.1982), quoting C. Gamble, McElroy's Alabama Evidence, § 110.01(3) (3d ed.1977). See Chinevere v. Cullman County, 503 So. 2d 841, 843 (Ala.1987).
In Nash v. Cosby, 574 So. 2d 700 (Ala.1990), we modified that traditional rule. In that case, we adopted a standard which allows a medical expert to give opinion testimony based in part on the opinions of others when those other opinions are found in medical records admitted into evidence. Nevertheless, our holding in Nash does not control the result of this case.
Brackin, supra at 606. (Citations omitted.) See Salotti v. Seaboard Coast Line R.R., 293 Ala. 1, 299 So. 2d 695 (1974). See, also, C. Gamble, McElroy's Alabama Evidence, § 130.01 (3d ed.1977).
Thus, in Nash we modified the Court of Criminal Appeals' holding in Brackin as it relates to the testimony of medical experts based on the opinions of others; but Nash has not changed the traditional rule followed in Alabama that the information upon which the expert relies must be in evidence.[1]
There are recognized exceptions to this rule. We have allowed experts to testify regarding value, when that testimony was based in part on hearsay evidence. See Sidwell v. Wooten, 473 So. 2d 1036 (Ala.1985); Southern Electric Generating Co. v. Howard, 275 Ala. 498, 156 So. 2d 359 (1963); Blount County v. Campbell, 268 Ala. 548, 109 So. 2d 678 (1959); and Alabama Power Co. v. Berry, 222 Ala. 20, 130 So. 541 (1930). The Court of Criminal Appeals has also recognized an exception where the expert is a deputy coroner who uses a toxicologist's autopsy report as part of the basis for his testimony. See Jackson v. State, 412 So. 2d 302 (Ala.Crim.App. 1982); Woodard v. State, 401 So. 2d 300 (Ala.Crim.App.1981).
Welch v. Houston County Hosp. Bd., 502 So. 2d 340, 345 (Ala.1987), quoting Thompson v. Jarrell, 460 So. 2d 148, 150 (Ala. 1984). (Emphasis added in Welch.) See, also, Romine v. Medicenters of America, Inc., 476 So. 2d 51 (Ala.1985). There is no reversible error if the facts upon which the opinion is based are admitted into evidence after the expert has testified. Crawford v. Hall, 531 So. 2d 874 (Ala.1988).
In this case, the reports and records upon which Dr. McClaren testified were not in evidence at the time he testified, nor were they subsequently admitted. Although a doctor may testify to statements made by a patient regarding that patient's medical history, if those statements were made during and for the purpose of treatment, Stewart v. Lowery, 484 So. 2d 1055 (Ala.1985), we cannot assume that the records upon which Dr. McClaren relied did not contain more than a medical history related by Wesley to hospital personnel. Such is simply not the nature of the content of medical records. Thus, his testimony, based partly on those facts not in evidence, *130 is inadmissible. See C. Gamble McElroy's Alabama Evidence, § 110.01 et seq. "The source of our decision on this issue is the principle that insanity cannot be proven by hearsay evidence." Brackin, supra, at 606.
We note that other jurisdictions and the federal courts allow expert testimony on the issue of sanity based in part on hearsay so long as that hearsay is customarily relied on by experts in the field. See generally Annot., 55 A.L.R.3d 551 (1974); Annot., 175 A.L.R. 274 (1948); Fed.R.Evid. 703. Be that as it may, without legislation authorizing this, we will not change the traditional rule followed in Alabama,[2] particularly in a case in which a man has been sentenced to death.
The Court of Criminal Appeals relies on Brown Mechanical Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932 (Ala. 1983). We do not think that case is relevant. In Brown Mechanical Contractors, we did not reverse because of the trial court's admitting into evidence, over objection, a letter that served as a basis for an expert's opinion as to why one possible cause of a fire was not the cause of the fire. In a footnote in Brown, we wrote, "We do not suggest, however, that hearsay is admissible whenever it is assertedly offered to show the basis of an expert opinion." 431 So. 2d at 944. (Emphasis supplied.) In Brown, that letter, which contained hearsay, was admitted into evidence, and the expert was cross-examined on that letter.
In the present case, the police reports and medical records that contained hearsay evidence and upon which Dr. McClaren was asked to base his opinion were not offered or admitted into evidence. Dr. McClaren's testimony was objected to because he was asked to base his opinion upon those records that were not in evidence.
We hold that the trial court erred to reversal in allowing Dr. McClaren's testimony. We reverse the judgment of the Court of Criminal Appeals and remand the case for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES and ADAMS, JJ., concur.
MADDOX and STEAGALL, JJ., concur specially.
MADDOX, Justice (concurring specially).
I concur in the holding in this case, but I am compelled to point out that, in my opinion, this Court adopts a different rule for the admissibility of the opinion evidence in this case from what was adopted in the case of Nash v. Cosby, 574 So. 2d 700 (Ala. 1990), in which this Court followed the "recent trend ... toward allowing expert testimony that is based upon medical or hospital or psychological records, even in some cases where those records are not in evidence." (Emphasis added.) As I understand the modern trend as adopted in Nash, it is that an expert's opinion can be based partly on medical, psychological, or hospital reports that are not in evidence, if the reports are of a type customarily relied upon by the expert in the practice of his profession. If the modern trend was not adopted in Nash, in toto, then I do not understand why the Court, in that case, cited favorably a criminal case in the federal system, United States v. Partin, 493 F.2d 750 (5th Cir.1974), in support of its conclusion.
I agree with the majority that Brackin v. State, 417 So. 2d 602, 606 (Ala.Crim.App. 1982), specifically noted that the trend of permitting an expert to give an opinion based on reports that are not in evidence *131 "has not been followed in the courts of this state," and that is one of the reasons I joined in the dissenting opinion filed by Justice Steagall in Nash.
This Court has appointed an advisory committee that is now studying our proposed rules of evidence, and I hope that the issue presented here will be addressed by the committee so that this Court can establish a rule that will apply in both civil and criminal cases. In that connection, I would point out that, effective January 1, 1991, when the new Alabama Rules of Criminal Procedure go into effect, Rule 19.2(a) provides that "[t]he law of evidence relating to civil actions shall apply to criminal proceedings, except as otherwise provided by law."[3]
STEAGALL, J., concurs.
[1] In Nash we recognized that "the recent trend has been toward allowing expert testimony that is based upon medical or hospital or psychological records, even in some cases where those records are not in evidence." 574 So. 2d at 704. (Emphasis added.) There, the records upon which the expert partially based his testimony were in evidence. Our recognition of the recent trend, however, is not to be taken as an adoption of that trend, especially considering that the facts in Nash would not support our doing so. Accordingly, the phrase "even in some cases where those [medical] records are not in evidence" should be given no significance insofar as the law of this state is concerned.
[2] New York courts followed the traditional rule until N.Y.Civ.Prac. L. & R. § 4515 (McKinney 1963) provided an exception. Section 4515 allowed the testimony of experts if that testimony was based upon material "of a kind accepted in the profession as reliable in forming a professional opinion." We have the same concern as was voiced by the author of the "Supplementary Practice Commentaries" to that section:
"Most experts, particularly psychiatrists, will state that they rely upon every piece of relevant evidence they can lay their hands on. Thus, one wonders whether the exception may swallow the rule.
"... [R]ule 4515 seems to create almost as many problems as it solves."
[3] As a general proposition, it would appear that the modern trend adopted by this Court in Nash would allow experts to testify concerning conclusions they reached, without having all the documents and things they examined introduced into evidence. This would seem to be especially true in the case of expert opinions in cases involving questions of a person's mental condition, because such opinions are usually based on many facts and observations. It would appear to me that if the adverse party is given the right to a searching cross-examination of an expert, then that party could attack the credibility of an expert's opinion, even if the records upon which that opinion is based are not in evidence. Clearly, the adverse party needs an opportunity to show that an expert's opinion is flawed because it is based on information that might not be credible, but the trial court, it seems to me, could control that by requiring, in the appropriate case, the production of the records upon which an opinion is based, if justice so requires. I still think, however, that Alabama had not adopted the modern trend at the time Nash was decided, and I preferred to wait until the advisory committee working on Alabama's proposed rules of evidence completed its work and made its report, so that this Court, after receiving comments from the bench and bar, could adopt a rule that would apply in both criminal and civil cases. See Rule 19.2(a), Ala.R.Crim.P., effective January 1, 1991. | September 28, 1990 |
882cab26-d38c-438b-9c1b-b821a47c09ac | Ex Parte Izundu | 568 So. 2d 771 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 771 (1990)
Ex parte Chiemeka S. IZUNDU.
(Re Chinwe U. IZUNDU v. Chiemeka S. IZUNDU).
89-1180.
Supreme Court of Alabama.
September 7, 1990.
Robert C. Barnett, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and Robert M. Weinberg, Asst. Atty. Gen., for respondent.
*772 ADAMS, Justice.
Chiemeka Izundu petitions this Court for a writ of mandamus ordering the Circuit Court of Jefferson County to set aside an order directing him to return his minor children to Jefferson County. His petition is before this court de novo under Ala.R. App.P. 21, following a denial of his petition in the Court of Civil Appeals. 563 So. 2d 1042. We also deny the petition.
Mr. and Mrs. Izundu obtained a divorce in 1986 after approximately eight years of marriage. Three children, all still minors, were born to the marriage. The couple remarried on June 26, 1988, in Jefferson County, where they lived until they separated again on July 17, 1989. On July 16, 1989, Mr. Izundu allegedly removed the children from the marital residence in Jefferson County, without the knowledge of Mrs. Izundu, to his homeland in Nigeria, where he left them in the custody of his brother and sister-in-law.
On July 25, 1989, Mrs. Izundu filed a divorce complaint, in which she sought custody of the children. On November 3, 1989, she filed a custody affidavit indicating the whereabouts of the children and requested a hearing to determine whether the circuit court had jurisdiction over them. Additionally, she sought the return of the children to Jefferson County before trial.
On December 21, 1989, Judge W.C. Zanaty, Jr., determined that jurisdiction over the children was proper. At the same time, prior to the entry of any custody order, and without notice to the petitioner's relatives in Nigeria, the judge ordered Mr. Izundu to return the children to Alabama by January 15, 1990. Mr. Izundu's motion in the trial court seeking to set aside that order was denied on January 12, 1990. On March 21, 1990, the Customary Court of Onitsha, Nigeria, awarded custody of the three children to Mr. Izundu's brother and sister-inlaw and enjoined both parents from interference with the children's "upbringing." Subsequently, the Court of Civil Appeals denied Mr. Izundu's petition for a writ of mandamus directing the trial judge to set aside the order directing the return of the children, and that petition is now before this court de novo under Ala.R.App.P. 21.
Mr. Izundu contends that the trial court's order of December 21 violates sections of the Uniform Child Custody Jurisdiction Act providing for notice to, and joinder of, interested parties. In particular, he contends that the order was invalid in the absence of notice to his relatives in Nigeria of the pending custody proceeding and the joinder of those parties in the action.
Ala.Code (1975), § 30-3-24, requires that "[b]efore making a decree under this article, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated, and any person who has physical custody of the child."
As we have stated before, mandamus "is a drastic and extraordinary" remedy. Ex parte Edgar, 543 So. 2d 682, 684 (Ala.1989). The writ will not issue in the absence of a "clear legal right in the petitioner to the order sought." Id. at 684. "[I]f there is a doubt of the necessity or propriety, mandamus will not lie." Folmar v. Brantley, 238 Ala. 681, 193 So. 122, 125 (1939).
Respondent contends that petitioner has no standing to seek a writ of mandamus to set aside the order of December 21. We agree.
A party must allege an individual or representative right and a redressable injury to that right as a prerequisite to setting in motion the machinery of the court. See 59 Am.Jur.2d Parties § 31 (1987). In order to be a "proper party plaintiff, a person must have an interest in the right to be protected." Eagerton v. Williams, 433 So. 2d 436, 447 (Ala. 1983). As a general rule, "a litigant may not claim standing to assert the rights of a third party." Jersey Shore Medical Center-Fitkin Hosp. v. Estate of Baum, 84 N.J. 137, 417 A.2d 1003 (1980). A party lacks standing to invoke the power of the court in his behalf in the absence of "a concrete stake in the outcome of the court's decision." Brown Mechanical *773 Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 937 (Ala.1983).
Izundu grounds his right to petition this Court for an extraordinary writ on the failure of the trial court to give notice to his relatives in Nigeria of the custody proceeding pending in Alabama. However, he does not purport to act in any representative capacity for the individuals allegedly injured by the absence of notice, nor does he claim to be in privity with them.
We, thus, fail to see how the absence of notice to parties in Nigeria alters or impairs any rights of the petitioner. Merely alleging a procedural deficiency respecting third parties does not set forth a redressable injury sufficient to grant the petitioner standing to challenge a court order directing him to act. Therefore, we hold that mandamus will not lie as a result of the trial court's failure to give notice to the Nigerian parties in physical custody of the children.
Izundu's second argument stands on no better ground. He contends that the order of December 21 is invalid because of the trial court's failure to join his relatives in Nigeria as necessary parties under Ala. Code (1975), § 30-3-30, and Ala.R.Civ.P. 19. Section 30-3-30 provides that if "a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, [the court] shall order that person to be joined as a party and to be duly notified of the pendency of the proceeding." Rule 19 provides:
Id.
Under our law, the duty to join necessary parties ordinarily devolves upon the plaintiff in the suitin this case, Mrs. Izundu. J.C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834, 849 (Ala. 1981). If a litigant fails to join an indispensable party, the trial court "shall order that he be made a party." Id. at 850.
The petitioner is not seeking a writ of mandamus to compel joinder of a necessary party. Neither does he allege that he attempted to return the children in compliance with the order of December 21 at any time during the three-month period between that order and the eventual order of the Nigerian court. Neither does he allege that compliance with the order is now impossible. In fact, at this stage in the proceeding, it is entirely unclear what position the Nigerian parties will take upon the petitioner's compliance with the order to return the children. If Izundu's relatives claim a bona fide interest in the minor children, that position will become apparent upon the petitioner's good faith effort to comply with the order of December 21.
The writ of mandamus will be issued 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.
DENIED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | September 7, 1990 |
55fa3b09-df67-4527-81b4-c7055e7ced9e | Parrish v. Russell | 569 So. 2d 328 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 328 (1990)
Pauletta PARRISH
v.
Dr. Bob RUSSELL and Dr. Bob Russell, P.C.
89-417.
Supreme Court of Alabama.
August 3, 1990.
Rehearing Denied September 21, 1990.
*329 S. Shay Samples and Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
Michael J. Salmon, Gulf Shores, for appellees.
JONES, Justice.
On December 18, 1987, Pauletta Parrish sued Dr. Bob Russell for injuries she sustained as a result of his alleged medical negligence. The trial court granted Dr. Russell's motion for summary judgment and entered a final judgment for Dr. Russell. Parrish appeals.
On December 19, 1985, Pauletta Parrish slipped and fell down some stairs at her daughter's mobile home and landed on her outstretched left arm. She was taken to Dr. Bob Russell, in Foley, Alabama, who determined that she had fractured the distal radius and ulna styloid bones in her left wrist, and, as a result of the fracture, had suffered some deformity in the wrist. X-rays were made of the fracture and Dr. Russell placed Parrish's arm in a cast. Whether Russell made a post-reduction X-ray after he put Parrish's arm in the cast is unknown. Dr. Russell told Parrish to return to his office in six weeks to have the cast removed, but that if she experienced pain or swelling she should return sooner.
On December 31, 1985, Parrish returned to Dr. Russell's office, complaining of pain. An X-ray taken during that visit revealed the problem to be a malunion of the fractured bones. On January 30, 1986, Dr. Russell removed the cast from Parrish's arm. On February 3, 1986, Parrish went to Dr. Robert Eubanks, who, noting a deformity of Parrish's left wrist, put Parrish in a physical therapy program to strengthen her hand and wrist and to increase the wrist's range of motion. On February 19, 1986, Parrish returned to Dr. Eubanks, complaining of discomfort in, and the prominence of, her wrist. During this visit, a shortening of the angulation was noted.
*330 On March 31, 1986, Parrish saw Dr. Leo Flynn, who noted swelling and loss of motion and loss of strength in Parrish's left wrist as a result of the malunion. Dr. Flynn referred Parrish to a Dr. Whipple in Richmond, Virginia, who performed an osteotomy on the bones that had been fractured.
In her complaint, Parrish alleged that Dr. Russell negligently failed to perform a post-reduction X-ray to determine whether her wrist was properly aligned in the cast. Further, says Parrish, because of this failure to X-ray, a malunion formed that resulted in reflex sympathetic dystrophy of her wrist, permanent deformity of her wrist, and continuous discomfort. Dr. Russell stated, in deposition, that Parrish picked up her X-rays from his office in March 1986; however, when asked about this during her deposition, Parrish replied, "No, sir." Parrish also alleged that the osteotomy performed by Dr. Whipple was necessary to correct the deformity to her wrist that occurred as a result of the alleged negligence of Dr. Russell.
The original complaint was filed on December 18, 1987, after the effective date of Ala.Code 1975, § 12-21-12 (abolishing the "scintilla rule" and replacing it with the "substantial evidence rule" in "all civil actions") and § 6-5-549 (abolishing the "scintilla rule" and replacing it with the "substantial evidence rule" in "any action ... against a health care provider based on a breach of the standard of care"). Section 12-21-12 abolished the scintilla rule for all cases pending on June 11, 1987; Sections 6-5-549 and -552 abolished that standard for "all actions ... based on acts or omissions accruing [occurring?] after June 11, 1987." It is not necessary for us to decide, however, whether this case is governed by the general provision (§ 12-21-12) or by the more specific provision (§ 6-5-549), because we find that the plaintiff met the higher requirement of offering "substantial evidence."
The physician's standard of care owed to the plaintiff-patient in this case is that set out at § 6-5-484(a): "[A] physician's ... duty to the patient shall be to exercise such reasonable care, diligence, and skill as physicians... in the same general neighborhood, and in the same general line of practice, ordinarily have and exercise in a like case." We note that the Legislature has modified this standard (see § 6-5-548), but we note, further, that that modification does not apply in this case (see § 6-5-552).
Ordinarily, a plaintiff must prove a physician's medical negligence through the use of expert medical testimony. Bell v. Hart, 516 So. 2d 562 (Ala.1987); Lightsey v. Bessemer Clinic, 495 So. 2d 35 (Ala.1986); and Holt v. Godsil, 447 So. 2d 191 (Ala.1984). Both Russell and Parrish, in their motions for summary judgment, and in the materials filed in opposition to summary judgment, relied upon testimony by medical experts. The issue presented, then, is whether the trial court, in light of the testimony of the parties and the testimony of each side's medical experts, erred in granting the defendant's motion for summary judgment.
Summary judgment is proper when there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law. Rule 56(e), A.R.Civ.P. Once the movant has made a prima facie showing of the absence of an issue of material fact, the burden is upon the nonmovant to rebut that prima facie showing. Berner v. Caldwell, 543 So. 2d 686 (Ala.1989). Here, the test is whether there was evidence that, when reviewed most strongly in favor of the non-movant (Parrish), is sufficient to establish that Dr. Russell was negligent and that his negligence was the probable cause of the injuries sustained by Parrish. If there was, then summary judgment was improper. Further, in a medical malpractice case, "there must be more than a mere possibility or one possibility among others that the negligence complained of caused the injury; there must be evidence that the negligence probably caused the injury." Williams v. Bhoopathi, 474 So. 2d 690, 691 (Ala.1985) (emphasis added).
Parrish first argues that Dr. Russell was negligent in failing to make a post-reduction X-ray to assure proper alignment *331 of the fractured bones. Dr. Russell testified in deposition that, although he usually does a post-reduction X-ray after setting a fracture, he can not remember whether he did so after setting Parrish's wrist. Further, Russell testified that Parrish picked up all of her X-rays from his office in March 1986 and, therefore, that he does not have them for reference. Dr. Russell also stated that a failure to make a post-reduction X-ray, under the circumstances of this case, would be a breach of the minimum standard of care required of a physician.
Dr. Lloyd Russell, Dr. Eubanks, and Dr. Flynn each testified that a physician should take a post-reduction X-ray to be certain of proper alignment of the fractured bones. Dr. Eubanks testified that if there is a deformity as a result of the fracture, as there was in the instant case, a physician would want to X-ray to check position and alignment of the fractured bones and to know what type of reduction had been achieved. Dr. Eubanks further testified that there is a direct correlation between inadequate reduction of a deformed fracture and a malunion.
Dr. Lloyd Russell testified that a physician needs to make a post-reduction X-ray within a week to 10 days, if not immediately, after setting a fracture. He stated that during that first week to 10 days a physician can realign, if necessary, to prevent a malunion. Dr. Flynn testified that the malunion here could have been corrected if the misalignment had been noted within the first 24 hours after the reduction.
Parrish also alleges that Dr. Russell was negligent in not telling her to return sooner than six weeks after setting her wrist. Dr. Lloyd Russell testified that the minimum standard of care would probably require a physician to have the patient return in one or two weeks after the initial visit. Dr. Flynn testified that he would either put the patient in a hospital for continuous observation or would have her return the next day. Dr. Flynn further testified that had Parrish been re-examined and treated within 24 to 48 hours after her initial visit to Dr. Russell, the reflex sympathetic dystrophy probably would not have been as severe.
Parrish's left hand had had a previous injury that required skin grafts and the amputation of three fingertips. Parrish alleges that this condition of her hand put her at a higher risk for reflex sympathetic dystrophy and, therefore, that Dr. Russell should have taken greater precautions to prevent this result. Dr. Flynn testified that Parrish's prior problems with her left hand did put her at a higher risk for reflex sympathetic dystrophy. Therefore, according to Parrish, Dr. Russell was also negligent in failing to take greater precautions against this risk.
Parrish further alleged that Dr. Russell breached his duty of care in failing to refer her to an orthopedic surgeon upon his initial examination of her wrist. Dr. Russell did not, during the December 19, 1985, visit, refer Parrish to an orthopedic surgeon; however, on December 31, 1985, he did recommend that she see Dr. Lloyd Russell, an orthopedic surgeon in Fairhope, Alabama. Parrish did not see Dr. Lloyd Russell, but saw Dr. Eubanks instead. Dr. Flynn testified that in Pensacola, Florida, the standard of care would have required the physician to refer the patient to an orthopedic surgeon upon the initial visit. The standard of care in Pensacola would not be different from the standard of care in Foley, Alabama. This Court has recognized that
Zills v. Brown, 382 So. 2d 528, 532 (Ala. 1980). Accordingly, Russell's argument that Parrish's experts were not aware of the medical standard of care in Foley, Alabama, is without merit.
There was expert testimony that a possible cause of the malunion could have been Parrish's activities after the cast had been *332 set. Parrish owned and operated a service company that cleaned condominiums, and her duties involved general housework. Parrish testified that she had a staff who worked for her, that she did not do any "hard work," and that she used only her right hand. Dr. Lloyd Russell testified that the minimum standard of care required a physician to instruct a patient as to what activities the patient should or should not engage in. The parties disagree as to whether Dr. Russell instructed Parrish not to work.
Relying upon affidavits and depositions, Dr. Russell met his burden of establishing a prima facie casei.e., presenting factual evidence that, if uncontested, would entitle him to a judgment as a matter of law. Clearly, however, Parrish met her burden of rebutting that prima facie showing by presenting evidence of specific facts that created a genuine issue of material fact for consideration by a jury. Therefore, because there was evidence from which the factfinder could infer that Dr. Russell's treatment probably caused Parrish's injuries, summary judgment was improper.
For the reasons stated above, the judgment is reversed and the cause is remanded for trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | August 3, 1990 |
ad10c2ae-5b1b-445a-b04c-db6481f78281 | Guinn v. American Integrity Ins. Co. | 568 So. 2d 760 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 760 (1990)
Lucile GUINN
v.
AMERICAN INTEGRITY INSURANCE COMPANY, et al.
89-470.
Supreme Court of Alabama.
September 7, 1990.
*761 Clark Carpenter of Wooten, Thornton, Carpenter, O'Brien & Lazenby, Talladega, for appellant.
Mark E. Fuller of Cassady, Fuller & Marsh, Enterprise, for appellees.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of defendants Guy Martin, Roger McCollough, Southern Insurance Service, American Integrity Insurance Company ("American Integrity"), Providers Fidelity Life Insurance Company ("Providers Fidelity"), and Senior Citizens Group Insurance Trust of America,[1] and against the plaintiff, Lucile Guinn, on her fraud claims. Guinn also appeals from the dismissal of her claims alleging a violation of Ala.Code 1975, § 27-12-6, a breach of fiduciary duty, and negligence and wantonness, as well as from the denial of a discovery motion.
Martin and McCollough, who did business as Southern Insurance Service, were general agents for American Integrity and Providers Fidelity. They visited Guinn at her home in an attempt to sell her medicare supplement insurance. Guinn was receptive to Martin and McCollough, but informed them that she already had coverage. Guinn had approximately five months of coverage remaining before a renewal premium of $594 was due, and had served all of the required waiting periods under those policies. Guinn, who was 88 years old at the time, informed Martin and McCollough that she was especially interested in obtaining the best nursing home coverage she could. However, she alleges that she emphasized that she did not want to be over-insured. Guinn also alleges that she told the agents that she was not knowledgeable about insurance policies and the different kinds of benefits they provided, and would rely on them to tell her what she *762 needed to do to get the coverage that she desired.
Although the evidence is in dispute on this point, it appears that either Martin or McCollough reviewed the policies that Guinn had in force at the time and then offered her a "package" that was comprised of an American Integrity policy and a Providers Fidelity policy. Guinn said that the agents told her that the nursing home benefits available under that package were superior to those available under her existing coverage. They advised her to buy their package and allow her other policies to lapse. The agents also told Guinn that she would be able to cancel the American Integrity policy within 10 days of its effective date, and the Providers Fidelity policy within 30 days of its effective date, if she was not satisfied with them. Guinn agreed to make the purchase and gave the agents a single check for the initial premiums of $808.70 for the American Integrity policy and $107.50 for the Providers Fidelity policy, a total of $916.20.
Soon after she made that purchase, but before she received her policies, Guinn made three unsuccessful attempts to cancel the policies. She later consulted another insurance agent, who reviewed her old and new policies and told her that her new policies did not provide better coverage than did her old policies, but were just more expensive. Soon after receiving that agent's opinion, Guinn filed a complaint alleging, inter alia, that Martin and McCollough had made fraudulent misrepresentations of material facts concerning the relative merits of her earlier policies and the policies they sold her. It is from the trial court's disposition of the various claims in that complaint that this appeal arises.
Guinn appeals the summary judgment in favor of the defendants on her numerous claims of fraud. The trial judge entered that judgment in favor of Providers Fidelity because he was of the opinion that Guinn was not aware of the fact that she was issued a policy by that defendant. Judgment was entered in favor of the other defendants because the trial court held that Guinn had not shown any damage as a result of Martin and McCollough's alleged misrepresentations.
When reviewing a summary judgment, this Court must review all of the evidence that was before the trial court and must review it in a light that is most favorable to the non-movant. Turner v. Systems Fuel, Inc., 475 So. 2d 539 (Ala.1985). If a case was filed on or before June 11, 1987, the effective date of the "substantial evidence rule" and our review reveals the existence of a scintilla of evidence in support of each of the elements of the plaintiff's claim, the summary judgment must be reversed. Ala.Code 1975, § 12-21-12; Folmar v. Montgomery Fair Co., 293 Ala. 686, 309 So. 2d 818 (1975). Except, of course, in the case of a summary judgment for the defendant based on uncontroverted proof of a defense.
The elements of fraud are: (1) a misrepresentation (2) of a material fact (3) that was relied upon by the plaintiff (4) who was damaged as a proximate result of that misrepresentation. Earnest v. Pritchett-Moore, Inc., 401 So. 2d 752, 754 (Ala. 1981). In her complaint and deposition Guinn alleged that Martin and McCollough made a number of misrepresentations to her regarding the benefits that would be available under the package that they sold her, as well as the necessity of buying both of the policies in that package. Martin and McCollough argue that Guinn had other reasons for buying those policies from them, most notably the increased customer service that was available from their now defunct agency, Southern Insurance Service. However, both Martin and McCollough conceded in their depositions that the coverage provided by the American Integrity policy was at best equal to, and in some respects was inferior to, the coverage Guinn already had. The American Integrity policy had an initial premium of $808.70. Both agents agreed that it was only the Providers Fidelity policy, with an initial premium of $107.50, that provided the enhanced nursing home coverage that Guinn desired. Martin and McCollough also agreed that there was no reason that they *763 could not have sold only the Providers Fidelity policy to Guinn.
Additional testimony was provided by Marvin Watkins, Providers Fidelity's agency director. Watkins stated that the American Integrity policy did not provide Guinn with any coverage that she did not already have and that it was not in her best interests to replace her existing coverage by buying both of the policies offered to her by Martin and McCollough. Watkins also stated that a person who told Guinn that such a purchase would be in her best financial interests would not be telling her the truth.
After reviewing the evidence, this Court concludes that there was a scintilla of evidence that Martin and McCollough misrepresented to Guinn the necessity of buying the American Integrity policy. The testimony of those two agents, standing alone, indicates that that policy simply replaced, at a cost of $808.70, coverage that Guinn already had and that had all of its waiting periods served. Such misrepresentations, if made, would involve a material fact and would appear to have been relied upon by Guinn to her detriment.
This Court does not agree with the trial court's conclusion that there was no evidence indicating that Guinn was aware that she was buying a policy from Providers Fidelity at the time she made the purchase. Both agents testified that the benefits available under that policy were explained to Guinn, and that the application form that she signed bore a Providers Fidelity logo. The moment in time that is relevant to fraud claims is that moment at which the plaintiff, in reliance on the defendants' representations, took the action that later proved to be detrimental. Connell v. State Farm Mutual Auto. Ins. Co., 482 So. 2d 1165, 1167 (Ala.1985). Although Guinn may have appeared somewhat confused, during her deposition, regarding whether she had purchased a policy from Providers Fidelity, that confusion is not relevant to the issue of reliance, because it took place years after the transaction occurred.
In addition, this Court does not agree that Guinn did not present a scintilla of evidence that she was damaged by the agents' alleged misrepresentations. If, in fact, Guinn's purchase of the American Integrity policy was needless, then it is clear that she parted with over $800 and received absolutely no advantage. This Court also rejects the defendants' argument that, possible misrepresentations notwithstanding, Guinn suffered no damage because she did not file a claim during the period that she was insured by American Integrity and Providers Fidelity. This is not an action for breach of contract, and that argument ignores the hardship that would be experienced by any person after needlessly spending over $800.
Guinn's original complaint included 19 counts, and the defendants filed motions to dismiss for failure to state a claim. Rule 12(b)(6), Ala.R.Civ.P. The trial court entered an order dismissing the counts "claiming damages for breach of a fiduciary relationship and ... for a violation of [§] 27-12-1 of the Code of Alabama 1975 et seq.," but denying the motions to dismiss "as to the claim [sic] for damages for misrepresentation or legal fraud." The order concluded by stating that the motions to dismiss were denied as to the fraud "claim" but were "granted as to all other claims in the complaint."
Guinn later filed an amended complaint, consisting of 11 counts that were numbered "Three A," "Four A," etc.; these counts were refined versions of Counts Three, Four, etc., of the original complaint. The trial court also dismissed the amended complaint, issuing the following order:
Without sifting through the claims individually, we shall address the arguments regarding the dismissal as they are presented.
Guinn alleged in several counts that Martin and McCullough made false representations and comparisons regarding her existing policies and the policies that they wanted to sell her, thus violating Ala.Code 1975, § 27-12-6. That statute prohibits the practice of "twisting," that is, the use of misrepresentations or incomplete or inaccurate comparisons of policies in attempts to induce policyholders to exchange or convert existing policies. The defendants contend that § 27-12-6 does not create a private right of action and that the dismissal of the claim based on that section was correct. Under the holdings of this Court in HealthAmerica v. Menton, 551 So. 2d 235, 243 (Ala.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 1166, 107 L. Ed. 2d 1069 (1990); Tribble v. Provident Life & Acc. Ins. Co., 534 So. 2d 1096 (Ala.1988); and Jarrad v. Nationwide Mutual Ins. Co., 495 So. 2d 584 (Ala.1986), Guinn's allegations of a violation of § 27-12-6 supported her claims of fraud, and to that extent those allegations should be given proper consideration on remand. It does not appear that any of those counts stated a statutory claim for relief that is different in any material respect from a fraud claim, so we see no basis for holding the trial court in error in dismissing those counts.
Guinn's breach of fiduciary duty claim was premised on her allegation that her reposal of trust in Martin and McCollough to advise her on what policies she should purchase, coupled with their acceptance of that trust, created a fiduciary relationship. She argues that her reliance, along with her advanced age, lack of mental strength, lack of knowledge of insurance matters, and the agents' superior knowledge concerning insurance, constituted special circumstances that warranted the imposition of a fiduciary duty on Martin and McCollough.
This Court has held that an insurance agent may be the agent of the insured, the insurer, or both. Washington National Ins. Co. v. Strickland, 491 So. 2d 872, 874-75 (Ala. 1985). However, an insurance agent is generally not considered to be an agent of the insured until a contract of insurance has been entered into. Strickland, supra; Highlands Underwriters Ins. Co. v. Eleganté Inns, Inc., 361 So. 2d 1060 (Ala.1978). Until such a contractual relationship has been established, the parties remain in the relationship of salesperson and prospective customer. The salesperson and his principal may be liable for damages if he misrepresents material facts in an attempt to induce the prospective customer to enter into the contract, Harrell v. Dodson, 398 So. 2d 272 (Ala.1981); Ala.Code 1975, § 6-5-101 through 6-5-104. However, that potential liability does not indicate the existence of a fiduciary relationship.
In addition, the existence of a duty is a question of law for the trial court. Berkel & Co. Contractors v. Providence Hospital, 454 So. 2d 496 (Ala. 1984); Hand v. Butts, 289 Ala. 653, 270 So. 2d 789 (1972). Because Guinn failed to present evidence of a relationship between herself and Martin and McCollough that gave rise to a fiduciary duty, the court did not err in dismissing the claim based on an alleged fiduciary duty.
Guinn also appeals the dismissal of her claims alleging negligence and wantonness against the defendant insurance companies. Those claims alleged that the companies failed to use due care in selecting, training, and monitoring their agents, and thus made the alleged wrongful acts of Martin and McCollough more likely to occur. However, title 27 of the Alabama Code of 1975 regulates some aspects of the insurance industry, including the licensing and conduct of insurance agents. Guinn does not allege that the defendant companies *765 violated the guidelines set out in that chapter in selecting, training, or monitoring their agents. Therefore, this Court concludes that, in regard to their selection, training, and monitoring of agents, there was no evidence that the companies violated the standard of care mandated by the legislature, and we affirm the trial court's dismissal of Guinn's negligence and wantonness claims.
For the reasons stated, this Court holds that in support of each element of her fraud claims Guinn presented sufficient evidence to defeat the defendants' motion for summary judgment. Therefore, as to the fraud claims the summary judgment is reversed. Because this Court is reversing as to the fraud claims, the issue raised by Guinn regarding the trial court's denial of her discovery motion will not be addressed. In other respects the judgment is affirmed.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Guinn's original complaint named three other defendants. However, the plaintiff and those defendants reached a settlement and those defendants were voluntarily dismissed. | September 7, 1990 |
5a44b076-5cd0-47c4-b8bd-adf914b1d50e | ADRIATIC INS. CO., INC. v. Willingham | 567 So. 2d 1282 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1282 (1990)
ADRIATIC INSURANCE COMPANY, INC.
v.
Sam WILLINGHAM, d/b/a Willingham's Body Shop.
No. 89-786.
Supreme Court of Alabama.
August 31, 1990.
Mitch Damsky, Birmingham, for appellant.
Betty C. Love of Love, Love & Love, Talladega, for appellee.
ALMON, Justice.
This is an appeal from a judgment rendered on a jury verdict in favor of the plaintiff, Sam Willingham, d/b/a Willingham's Body Shop, and against one of the defendants, Adriatic Insurance Company, Inc. ("Adriatic"), in a fraud case. Adriatic argues that the judgment is due to be reversed because the jury did not also return a verdict against the other defendant, an agent of Adriatic. Adriatic argues that because its liability was based solely on alleged misrepresentations made by its agent, the jury could not properly return a verdict against Adriatic without also returning a verdict against its agent. In response, Willingham contends that the jury's verdict was consistent with the instructions given by the trial court, and that Adriatic failed to object to those instructions, leaving this Court nothing to review.
The court's instructions authorized the jury to return any one of the following verdicts: (1) against Willingham; (2) against both Adriatic and Adriatic's agent; or (3) against either the agent or Adriatic and in favor of the other defendant. Thus, the verdict against Adriatic alone was clearly authorized. Adriatic did not object to the trial court's instructions to the jury, and, in fact, stated that it was "satisfied" with those instructions. Nor did Adriatic file a post-judgment motion arguing that the instructions were erroneous.
This Court cannot reverse a trial court's judgment for an alleged error that is raised for the first time on appeal. The purpose of this rule is to give trial courts an opportunity to correct errors that, if left unaddressed, would require reversal. General Electric Credit Corp. v. Alford & Assocs., Inc., 374 So. 2d 1316 (Ala.1979). In addition, Rule 51, Ala.R.Civ.P., requires parties to object to "erroneous, misleading, incomplete, or otherwise improper" jury instructions. By failing to object before the jury retires to deliberate, a party waives any error in the court's instructions. Mixon v. Seaboard System R.R., 548 So. 2d 1034, 1036 (Ala.1989); Brackett v. Coleman, 525 So. 2d 1372, 1375 (Ala.1988); Joseph v. Staggs, 519 So. 2d 952, 956 (Ala.1988). As this Court held in Brackett, "Where there is no proper objection to the court's oral charge, this Court is powerless to reverse, even if the appellant's argument is meritorious." 525 So. 2d at 1375.
The same analysis applies to this case. Absent a timely objection by Adriatic, there *1283 is nothing for this Court to review. The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | August 31, 1990 |
f7e53a71-4494-4d79-ac5e-5ed43a8c85f6 | Hight v. Byars | 569 So. 2d 387 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 387 (1990)
James Paul HIGHT and Betty Hight
v.
G.L. BYARS, et al.
G.L. BYARS, et al.
v.
AmSOUTH BANK, N.A., et al.
89-687, 89-704.
Supreme Court of Alabama.
September 28, 1990.
*388 Robert T. Wilson and Garve Ivey, Jr. of Wilson & King, Jasper, for appellants.
Richard E. Fikes of Tweedy, Jackson and Beach, Jasper, for appellees/cross-appellants G.L. Byars, et al.
Cathy S. Wright and Luther M. Dorr, Jr. of Maynard, Cooper, Frierson & Gale, Birmingham, for appellees AmSouth Bank N.A. and Stephen H. Holland.
PER CURIAM.
Elizabeth Hanson, a customer of AmSouth Bank, N.A., asked AmSouth Bank sometime in 1984 to sell a lot that she owned on Smith Lake in Walker County, Alabama. Steve Holland, a member of AmSouth Bank's trust department and its property manager, undertook to sell Hanson's lot, and he contacted George Patridge, a real estate agent with Byars Realty, about finding a buyer.
Shortly after his conversation with Holland, Patridge spoke with James and Betty Hight, who owned a lot adjacent to Hanson's, about purchasing Hanson's property. Pursuant to that discussion, the Hights decided to buy Hanson's lot. Betty Hight signed a purchase agreement on August 16, 1984, which G.L. Byars, president of Byars Insurance Agency, Inc., also signed.[1] That agreement set the purchase price at $30,000 and required earnest money in the amount of $500. Betty Hight paid Byars Realty the earnest money on that same day. Hanson did not sign that agreement. In addition, G.L. Byars gave the Hights a "Purchaser's Estimated Closing Statement," signed by him as selling broker, that estimated the amount due at closing as $29,548.[2] Hanson did not sign that document either.
On August 28, 1984, the Hights received a letter from Tom Byars, the manager of Byars Realty, which stated, "Mrs. Hanson has decided not to sell her lake property at this time. Therefore, we are returning your earnest money of $500."
The Hights refused to accept the $500. Instead, on June 25, 1985, they sued G.L. Byars, individually, and Byars Realty, demanding specific performance.[3] The Hights also sought compensatory damages for breach of the purchase agreement. The defendants subsequently filed a third-party complaint against AmSouth Bancorporation; AmSouth Bank, N.A.; and Steve Holland, alleging that the bank and Holland were liable to Byars and Byars Realty if Byars and Byars Realty were liable to the Hights. The third-party complaint also alleged breach of the purchase agreement by Holland and AmSouth Bank. All of the defendants and third-party defendants pleaded the Statute of Frauds as an affirmative defense. The trial court entered summary judgment for all of the defendants and third-party defendants on January 8, 1990.
It is apparent that the underlying transaction in this casea contract for the sale of an interest in real propertyfalls within the ambit of Alabama's Statute of Frauds. Ala.Code 1975, § 8-9-2. Alabama law is well settled on the principle that in order for an agent to act on a principal's behalf regarding a matter controlled by the Statute of Frauds, the agent's authority must be in writing. § 8-9-2; Durham v. Harbin, 530 So. 2d 208 (Ala.1988), and Cammorata v. Woodruff, 445 So. 2d 867 (Ala.1983). Moreover, any contract made by an agent without written authority is void if the contract itself is one that has to be in writing. Cammorata v. Woodruff, supra. See, also, Thompson v. New South Coal Co., 135 Ala. 630, 34 So. 31 (1903).
Durham v. Harbin, supra, discussed the standard of review applicable to a summary judgment when the Statute of Frauds has been raised as a defense:
"Thompson v. Wilson, 474 So. 2d 657, 660 (Ala.1985)."
530 So. 2d at 210.
The record is devoid of any writing signed by Hanson authorizing either AmSouth Bank or Byars Realty to sell the lot. Because the Hights have not produced a scintilla of evidence that either AmSouth Bank or Holland or Byars or Byars Realty had written authority to sell Hanson's lot, the purchase agreement is void as to all defendants and third-party defendants.
Because the agreement was void, the plaintiffs were entitled to only a refund of the earnest money. Based on the foregoing, the summary judgment for the defendants and third-party defendants is affirmed.
AFFIRMED.
MADDOX and STEAGALL, JJ., concur.
JONES, ALMON and ADAMS, JJ., concur in the result.
JONES, Justice (concurring in the result).
The Statute of Frauds has no application to this case. The seller is not a party defendant. The defendant is G.L. Byars, the real estate agent who signed the sales agreement, acknowledging receipt of the $500 earnest money. The only issue is whether Byars can be held liable for specific performance and breach of contract. Under these facts, as a matter of law, Byars, as the non-title holder, cannot be required to specifically perform the contract, nor can he be liable for breaching the contract of sale. The trial court properly granted the defendants' motion for summary judgment.
[1] G.L. Byars testified in his deposition that Byars Realty is a subsidiary of Byars Insurance Agency, Inc., and is neither a corporation nor a partnership.
[2] The $48 represents closing costs.
[3] Because this complaint was pending on June 11, 1987, this appeal is governed by the "scintilla evidence rule." Ala.Code 1975, § 12-21-12. | September 28, 1990 |
5dfe38c3-7986-4317-8636-782ef208fada | Ex Parte Wilson | 571 So. 2d 1251 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1251 (1990)
Ex parte Shep WILSON, Jr.
(Re Shep Wilson, Jr. v. State).
89-561.
Supreme Court of Alabama.
August 17, 1990.
Rehearing Denied November 2, 1990.
*1253 Carlos A. Williams and J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders, Williams & Pettaway, Selma, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for State.
HORNSBY, Chief Justice.
This is a death penalty case. Shep Wilson, Jr., is a 33-year old black man with a history of emotional disturbance and violence toward women, including one prior conviction of rape. Although Wilson was one of several suspects in the kidnapping, rape, and murder of Monica Cook, he was not initially arrested in that regard. On February 14, 1986, Wilson was arrested for unlawful possession of a handgun; information obtained after that arrest eventually led to his conviction for the murder of Monica Cook.
The evidence showed that on the morning of January 27, 1986, Monica Cook was abducted from the Shell Discount Food Mart at which she worked in Sylacauga, Alabama. Cook had reported to work at 11:00 p.m. the evening before and was seen at the store by two persons, Officer Dusty Zook and Booker Harris, whose testimony placed her in the store at 12:30 a.m. and at a point between 1:30 and 2:00 a.m., respectively. Harris stated that as he was leaving the store between 1:30 and 2:00 a.m., he noticed a blue Buick automobile in the parking lot. Harris stated that he watched this automobile for some time but that no one got out of it. Just after 2:00 a.m., Jim Green entered the store and found no one there. Green testified that he called the police from a pay telephone that was close by.
Inside the store, the police found evidence that indicated that Cook had been forcibly abducted. A package of Kool cigarettes, which showed traces of blood, was found on the floor. Traces of blood were also found on the front door of the store building. The police found a woman's watch that appeared to be twisted as if had been forcibly wrenched from someone's arm.
Monica Cook's body was found on January 30, 1986, in the vicinity of Riser's Mountain near Riser's Mill Road. In one ear, police found an earring. Cook's clothing was in disarray. Evidence indicated that she had suffered numerous blunt force injuries and that as a result of one such blow her skull was fractured. Physical evidence indicated that Cook had been both raped and sodomized.
Upon his arrest for unlawful possession of a handgun, Wilson waived his Miranda rights and denied possession of the pistol. However, when police questioning shifted to the investigation of Monica Cook's murder, Wilson asked for an attorney and all questioning then ceased. The trial court found that the police did not arrest Wilson as a pretext to question him about Monica Cook, and the court further found that *1254 Wilson had made no incriminating statements at any time before the appointment of his attorney.
On the day after the handgun arrest, George Sims was appointed as Wilson's attorney, and Sims was contacted by the district attorney, who was seeking permission to search Wilson's home in connection with the Monica Cook investigation. Sims consulted with Wilson about the search and advised Wilson not to consent if he was involved with the Cook case. Wilson denied any involvement and subsequently signed a written consent to the search of his house and car, and both Wilson and Sims were present during the house search. Wilson's car was found on the property of his mother and was searched there.
Significant circumstantial evidence implicating Wilson in Monica Cook's death was discovered during these searches. This evidence included: (1) a simulated pearl earring substantially similar to the one found on Monica Cook's body, found in the carpet in Wilson's house; (2) fibers taken from carpet in Wilson's home that were later found to be identical to fibers found on Monica Cook's body; (3) bloodstains on a quilt on Wilson's bed; and (4) fibers taken from the automobile that were later found to be identical to fibers found on Monica Cook's body.
After the search was completed, Wilson approached investigator Alvin Kidd, a police officer he was acquainted with, and asked to talk with him later. Apparently Wilson wished to find out what the search and investigation had revealed. That evening the district attorney contacted Sims and informed him that Wilson had expressed a desire to discuss the Cook case with investigator Kidd. Sims responded by saying that he had no objections to Wilson's talking with Kidd and that Sims would come to the place of the questioning if Wilson requested his presence.
After the conversation between Sims and the district attorney, Kidd approached Wilson and Wilson told him that he still wanted to discuss the Cook investigation. Wilson was again advised of his rights and was informed of Sims's willingness to be present, and Wilson indicated that he wished to discuss the case without Sims's presence. During the interview, investigator Kidd discussed with Wilson some of the evidence that had been found in the search that linked Wilson to Cook's murder. Wilson eventually stated that he had unintentionally strangled Cook after they had had sexual relations. Wilson stated that he was angry at Monica Cook because she did not have the money she allegedly received from selling his marijuana and he admitted that he struck her with his fists. He further admitted that he had left the body in his residence for several days, and had slept in the same bed with the body on at least one occasion before dumping it in the area where it was later discovered.
The trial court found that Wilson's statement had been made voluntarily and without coercion. The trial court further found that even though the statements given by Wilson were given at approximately 3:00 a.m. on the morning of February 16, 1990, he was not exhausted at the time the statements were given and was aware that he could stop the interview at any time.
At trial, the state presented evidence obtained as a result of the searches of Wilson's residence and vehicle. The incriminating statement was also allowed into evidence. Wilson did not testify. The jury convicted Wilson of three counts of capital murder, and the trial moved to the penalty phase. The defense presented testimony indicating prior mental illness and possible mental retardation, and the state presented evidence that tended to rebut the defendant's evidence as to any mental illness or defect. The jury's determination in the penalty phase was a recommendation of death by a vote of 11 to 1. The trial court subsequently sentenced Wilson to death.
Wilson makes numerous allegations of error at his trial, and several of these issues merit discussion. Specifically, he challenges the validity of the consent searches of his home and automobile, and he also contests the voluntariness of statements that he made to police officers. In connection with the statements given to police and the consent searches mentioned *1255 above, the defendant further claims that he suffered ineffective assistance of counsel. The defendant also challenges the State's use of various mental evaluations prepared pursuant to the trial court's order as a prerequisite to his receipt of state assistance in obtaining mental health evaluations to aid in his defense. We will address these issues separately.
The defendant argues that the search of his residence was invalid because, he says, he merely gave consent to a police search for weapons and did not give consent to the search for evidence in the Monica Cook murder case. However, the record indicates that George Sims was contacted by the district attorney and was advised that the police wished to search the defendant's residence in connection with Cook's murder. When questioned on this issue, Sims testified that he informed the defendant that he was indeed a suspect in the Monica Cook murder case. Sims testified that he specifically told the defendant that he doubted that the district attorney had collected enough evidence against him to acquire a search warrant, and that if the defendant had anything to do with the case, he should refuse to consent to any search. Sims's testimony indicates that the defendant specifically denied that he either knew of or participated in the Cook murder. Sims stated that he told the defendant that a search might be of some benefit to him if he had nothing to do with the crime.
A person may consent to a search without a warrant and thereby waive any protection afforded by the Fourth Amendment to his right of privacy. Duncan v. State, 278 Ala. 145, 176 So. 2d 840 (1965). Consent to a search must be knowingly, intelligently, and freely given. Id. Based upon the evidence set out above, we conclude that the defendant did satisfy these criteria in his consent to the searches of his home and automobile. Further, the record establishes that the defendant gave the consent with knowledge that he was a suspect in the Monica Cook murder case. The trial court's ruling on this issue is supported by substantial evidence. See Prince v. State, 420 So. 2d 856 (Ala.Crim.App. 1982).
The evidence shows that the defendant approached Officer Alvin Kidd while the search of his residence was in progress. The record further indicates that the defendant asked Officer Kidd to come to the jail at a later time because he wanted to talk to him. The record further indicates that the defendant approached Kidd when Sims was not present, and that it was the defendant's intent that Sims not be included in his conversation with Kidd. Before Officer Kidd began any discussions with the defendant, the district attorney contacted Sims to seek permission to speak with the defendant. The evidence indicates that Sims inquired as to whether the defendant had requested his presence and, when informed that the defendant had indicated that he did not wish Sims to be present, made no objection to the conversation between Kidd and the defendant. Sims did state that he would be present during the conversation if the defendant wished that he be there and that he would be ready to come to the place of the interview at any time the defendant requested his presence. The record indicates that the defendant did not request his attorney, and Sims was not present at the interrogation.
We agree with the Court of Criminal Appeals, 571 So. 2d 1237, that the statements were voluntarily given and that they evidenced an effective waiver of the right to counsel. In this case, the facts indicate that the defendant initiated further contact with the police and requested that Officer Kidd speak with him. In Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), the United States Supreme Court recognized that an accused may validly waive his right to counsel by voluntarily initiating conversation with the police concerning an investigation. In Edwards, the Court stated that when a defendant asserts his right to counsel under *1256 Miranda, questioning must cease until "counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-85, 101 S. Ct. at 1884-85.
In this particular case, the defendant had available counsel. George Sims had been appointed his attorney and had accompanied the defendant during the search of his home. It was only after Sims was appointed that the defendant approached Officer Kidd and asked that he speak with him later. Kidd specifically reminded the defendant that his attorney could be present during their conversation. Moreover, the record shows that the defendant was read his Miranda rights and that he stated that he understood those rights. In fact, the taped conversation preserved in the record shows a painstaking and patient approach by the investigators to ensure that the defendant was aware of each of his rights and that he made a knowing and intelligent waiver. Further, it appears in the record that the defendant was not unfamiliar with the criminal process and the importance of his rights, in light of his previous conviction for rape.
In any case, the "determination of the waiver issue must necessarily depend ... upon the peculiar facts and circumstances surrounding that case, including the background, experience and conduct of the accused." Bartlett v. Allen, 724 F.2d 1524, 1527 (11th Cir.1984). See North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979). In this case, based upon the totality of the circumstances, we find that the facts and circumstances show a knowing waiver of the defendant's right to counsel at the time the incriminating statements were made. Oregon v. Bradshaw, 462 U.S. 1039, 1047, 103 S. Ct. 2830, 2835, 77 L. Ed. 2d 405 (1983).
The defendant claims that George Sims, who was initially the defendant's appointed attorney following his arrest, was ineffective in his representation. Specifically, the defendant claims that Sims was ineffective in allowing a consent search of the defendant's home and in allowing the defendant to make a voluntary and inculpatory statement to the police.
As to both issues raised by the defendant, we conclude that Sims was not ineffective in representing the defendant. Although we are cognizant of the analysis of the Court of Criminal Appeals concerning when and if the defendant's right to counsel attached under the Fifth and Sixth Amendments, an analysis of the fine distinctions on this point is made unnecessary by our agreement with the conclusion of the Court of Criminal Appeals that the defendant failed to carry his burden of proving that his counsel was ineffective in his representation of the defendant's interests.
The test for determining whether counsel is effective is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); it requires that the defendant show that the performance of the attorney was deficient and that the deficiency resulted in prejudice to the defendant. In this context, the term "deficient" has generally been defined as outside the range of reasonable professional conduct. Singleton v. Thigpen, 847 F.2d 668 (11th Cir.1988); cert. denied, 488 U.S. 1019, 109 S. Ct. 822, 102 L. Ed. 2d 812 (1989). Application of the standard articulated in Strickland and its progeny to the facts of this case does not demonstrate to us that the actions of Sims were deficient.
With respect to the searches, the record indicates that while Sims advised the defendant that a consent could serve the defendant's interest by removing him as a suspect in the Cook investigation only after the defendant assured him that he was in no way involved in the murder. Sims was not ineffective in advising the defendant to act on facts that the defendant represented to Sims were the truth. Nix v. Whiteside, 475 U.S. 157, 106 S. Ct. 988, 89 L. Ed. 2d 123 (1986). Moreover, Sims specifically told the defendant that he should not consent to the search if he was in any way involved in the Cook case. Plainly, the defendant cannot meritoriously *1257 argue ineffective assistance of his counsel when he disregarded his counsel's advice.
With respect to Sims's actions in relation to the defendant's statement, our preceding discussion with respect to the voluntariness of this statement establishes that the defendant validly waived any right to counsel prior to making any statement. The waiver of the right to counsel would certainly preclude the defendant's raising an argument concerning ineffective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982).
The record indicates that at the time Sims was informed that the defendant wished to converse with Officer Kidd, Sims had no knowledge of the evidence that implicated defendant in the Cook murder and was still operating under the defendant's representations that he was in no way involved. We cannot hold that it was outside the range of reasonable professional representation for Sims to rely on the representations of his client as to his innocence and on the instructions of his client that he was not to be present at the interview with Officer Kidd. Nix, supra; see Phelps v. State, 435 So. 2d 158 (Ala.Crim.App.1983) (counsel's advice that defendant make a statement to police not ineffective assistance of counsel). Here, Sims simply followed his client's instruction not to come to the interview. Our law would not require Sims, in order to render effective assistance of counsel, to anticipate that the defendant was lying and to disregard the defendant's instructions not to participate in the interview.
Pursuant to the United States Supreme Court's ruling in Ake v. Oklahoma, 470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), the defendant sought the assistance of a psychiatrist in the preparation of his defense. The State argued that if the defendant presented expert psychiatric testimony, it was entitled to have the defendant examined by its own experts. Following a hearing on the defendant's Ake motion, the trial court ordered that the defendant be transferred to the Taylor Hardin Secure Medical Facility for examination by State experts. The records generated by the Taylor Hardin staff were made available to the defendant's State-paid expert.
During the guilt phase of the trial, the defendant offered no psychiatric evidence. However, at the sentencing phase, the defendant informed the court that he intended to prove that the offense was committed at a time when the defendant was under extreme mental or emotional distress, in an attempt to prove a mitigating circumstance under Code 1975, § 13A-5-51(2). (We note also that from the outset the defendant had pleaded not guilty by reason of insanity.) The defendant produced a number of witnesses at this phase of the trial, including Dr. Edward Benson, a psychiatrist, who was provided to the defendant at the State's expense. Dr. Benson testified that the defendant suffered from paranoid personality disorder, underlying generalized anxiety disorder, and intermittent explosive disorder.
In rebuttal, the State called Dr. Kamal Nagi, a Taylor Hardin psychiatrist who had examined the defendant. Dr. Nagi testified that the defendant was not suffering from any mental disease or defect at the time the crime was committed.
The defendant complains that the trial court erred in requiring that he be examined first by the State in order to receive State funds to pay his expert's expenses, and that his Fifth Amendment rights and his Sixth Amendment right to counsel were violated in this respect. However, it is clear that a trial court may compel the defendant, when he pleads insanity, to undergo psychiatric examination, without infringing on the defendant's constitutional rights. Isley v. Dugger, 877 F.2d 47, 49 (11th Cir.1989). In this regard, one court has stated:
United States v. Cohen, 530 F.2d 43, 47-48 (5th Cir.), cert. denied, 429 U.S. 855, 97 S. Ct. 149, 50 L. Ed. 2d 130 (1976) (footnotes omitted).
Under the analyses of the Isley and Cohen cases, any defendant who raises the insanity issue may be compelled to undergo a psychiatric examination. Thus, the defendant's claim that he was denied equal protection of the laws under the decision in Ake, supra, is not well taken. We agree with the contention of the State that the defendant would have been subject to State examination in any case. Therefore, we hold that there was no error with regard to the defendant's right of equal protection of the laws.
We are mindful that the defendant offered the psychiatric testimony in this case in order to establish mitigating circumstances under Code 1975, § 13A-5-51(2). The defendant clearly bears the burden of proving mitigation under § 13A-5-45(g). However, § 13A-5-45(g) states that once the defendant interjects the issue of mitigation "the State shall have the burden of disproving the factual existence of that circumstance by a preponderance of the evidence." Thus, the State was justified in producing its own expert to rebut the evidence of mitigation offered by the defendant's expert. Moreover, we note that the defendant and his counsel were advised that the examination at Taylor Hardin would include any mitigating circumstances. In that regard, the defendant claims that the testimony of the state's expert violated his Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The defendant relies heavily on the case of Estelle v. Smith, 451 U.S. 454, 101 S. Ct. 1866, 68 L. Ed. 2d 359 (1981).
We find Estelle distinguishable. In Estelle, the appellate court was required to make a finding of "future dangerousness" in order to impose the death penalty, while in the present case no such requirement exists. The Estelle court held that the examination was improper because the defendant was not informed of his Miranda rights before he was examined by the State's expert and his attorneys were not informed that the scope of the examination would include the issue of "future dangerousness." In this case, the defendant's counsel was informed that the examination would encompass matters of mitigation and the defendant was informed of his Miranda rights prior to the examination. In Estelle, the Supreme Court stated:
Estelle, supra, at 466, 101 S. Ct. at 1874-75.
In this case, the defendant did enter a plea of not guilty by reason of insanity. Thus, the trial court was justified in compelling the defendant to undergo psychiatric evaluation. In addition, the defendant and his counsel were informed of the State's intention to examine the defendant on matters of mitigation and it appears that, prior to the examination, the defendant was informed of his Fifth Amendment rights. Moreover, the Supreme Court noted that "a different situation arises where a defendant intends to introduce psychiatric evidence at the penalty phase" as opposed to the case where the defendant intends to offer no such evidence.[1]
Based on the foregoing, we conclude that the defendant's claims regarding the admission of the State's psychiatric evidence are without merit. Because we reverse on the issue addressed below regarding the comment made during the closing argument by the district attorney, we need not consider the remaining issues raised by the defendant.
The following took place during the state's rebuttal in closing arguments in this case:
The district attorney continued with the remainder of his closing argument, which consists of over 9 typed transcript pages, and was made over at least the next 25 minutes, as calculated by this Court's reading of the closing argument. After the closing argument was completed, the trial court proceeded with an instruction just *1260 before the formal oral instructions given to the jury. This "curative" instruction is found in the record as follows:
Wilson contends that the district attorney's comments constituted a remark or comment on Wilson's failure to testify on his own behalf; specifically, he points to the following statement:
(Emphasis added.) As shown above, the defense made an objection to this argument, moved for a mistrial, and requested an instruction. We note that the trial court overruled defense counsel's request for a mistrial and for a curative instruction, although, after the closing arguments had been completed, it gave an instruction on the defendant's right not to take the stand. The defendant asserts, however, that the curative instruction did not specifically address the comment in question and therefore did nothing to address the prosecutorial error.
The defendant contends that under Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), any comment by a prosecutor on a defendant's failure to testify is reversible error. He also directs our attention to Ex parte Williams, 461 So. 2d 852 (Ala.1984), and Stain v. State, 494 So. 2d 816 (Ala.Crim.App.1986).
The State argues that the district attorney's comment was not on the defendant's failure to testify, and that his explanatory sentence "made it clear to the jury that he was referring to the defendant's sketchy incriminating statements, which had been admitted into evidence." The State further contends that where the argument would reasonably have been understood by the jury to be a comment on a defendant's statement that is in evidence, rather than on a defendant's failure to testify, there is no Fifth Amendment violation. United States v. Blackwood, 768 F.2d 131, 139 (7th Cir.), cert. denied, 474 U.S. 1020, 106 S. Ct. 569, 88 L. Ed. 2d 554 (1985); see Grady v. State, 391 So. 2d 1095, 1102 (Ala.Crim.App. 1980). The State asserts that because the prosecutor stated to the jury that he was referring to the defendant's taped statement, the jury could not have thought he was speaking regarding a lack of testimony. Finally, the State contends that any error was corrected by the trial court's "very strong" charge on the defendant's right not to testify, to which the defendant's attorney stated that he was satisfied.
For this discussion, we first note that in all criminal prosecutions, the accused shall not be compelled to give evidence against himself. Alabama Constitution, Art. I, § 6.
Ala.Code 1975, § 12-21-220 (emphasis supplied); see also Ex parte Yarber, 375 So. 2d 1231, 1233 (Ala.1979); Whitt v. State, 370 So. 2d 736, 738-39 (Ala.1979). The United States Supreme Court has held that the Fifth and Fourteenth Amendments to the United States Constitution are also violated when a comment is made by the prosecution on the accused's silence. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965); accord Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976) ("Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt"); United States v. Monaghan, 741 F.2d 1434 (D.C.Cir.1984), cert. denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 146 (1985); Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir.1984), cert. denied, 469 U.S. 1181, 105 S. Ct. 940, 83 L. Ed. 2d 952 (1985).
In a case where there has been a direct reference to a defendant's failure to testify and the trial court has not acted promptly to cure that comment, the conviction must be reversed. Ex parte Williams, 461 So. 2d 852, 854 (Ala.1984); Whitt v. State, supra; Ex parte Yarber, 375 So. 2d 1231, 1234 (Ala.1979); see also Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed. 2d 319 (1978) (the giving of such a curative instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination). The federal cases have held that "a statement by a prosecutor is improper if it was manifestly intended to be, or was of such a character that the jury would naturally and necessarily take it to be, a comment on the failure of the accused to testify." Marsden v. Moore, 847 F.2d 1536, 1547 (11th Cir.), cert. denied 488 U.S. 983, 109 S. Ct. 534, 102 L. Ed. 2d 566 (1988); United States v. Betancourt, 734 F.2d 750, 758 (11th Cir.), cert. denied, 469 U.S. 1021, 105 S. Ct. 440, 83 L. Ed. 2d 365 (1984).
In a case where there has been only an indirect reference to a defendant's failure to testify, in order for the comment to constitute reversible error there must be a close identification of the defendant as the person who did not become a witness. Williams, supra; United States v. Norton, 867 F.2d 1354, 1364 (11th Cir.), cert. denied, ___ U.S. ___, 110 S. Ct. 200, 107 L. Ed. 2d 154 (1989).
This Court in Whitt determined that a comment almost identical to the statement here was a direct comment on the failure of the defendant to testify and that the trial court's failure to promptly remedy the prejudice caused by the comment constituted reversible error. See also Ex parte Yarber, supra; Beecher v. State, 294 Ala. 674, 320 So. 2d 727 (1975); Warren v. State, 292 Ala. 71, 288 So. 2d 826 (1973); Troup v. State, 32 Ala.App. 309, 319, 26 So. 2d 611, 220 (1946). In Whitt, supra, the defendant was indicted for first degree murder arising out of a fatality in an automobile collision. He was convicted of second degree murder and the conviction was affirmed by the Court of Criminal Appeals. This Court reversed, however, finding that the district attorney's argument to the jury was an impermissible comment on the defendant's failure to testify. In Whitt, none of the closing arguments appeared in the record except the statements objected to by counsel, including the comment regarding the defendant's failure to testify: "The only person alive today that knows what happened out there that night is sitting right *1262 there." The defendant promptly objected to this remark and made a motion for mistrial.
370 So. 2d at 738.
Alabama law clearly holds that "[w]here there is the possibility that a prosecutor's comment could be understood by the jury as reference to failure of the defendant to testify, Art. I, § 6 [Const. of Ala. of 1901] is violated." Ex parte Tucker, 454 So. 2d 552, 553 (Ala.1984); Ex parte Dobard, 435 So. 2d 1351, 1359 (Ala.1983), cert. denied, 464 U.S. 1063, 104 S. Ct. 745, 79 L. Ed. 2d 203 (1984) (quoting Beecher v. State, 294 Ala. 674, 682, 320 So. 2d 727, 734 (1975)). However, as asserted by the State here, the prosecutor does have a right to point out to the jury that the State's evidence does stand uncontradicted, in an appropriate comment to that effect, but the comment must not cross over the line drawn by the right of a defendant not to testify at trial. Ex parte Williams, 461 So. 2d 852, 853 (Ala.1984); Ex parte Dobard, supra; Beecher, supra; see also Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978) (repeated comments by prosecutor that the evidence was uncontradicted was not error in light of promise by defense counsel that the defendant would take the stand); Marsden v. Moore, supra (quoting Duncan v. Stynchcombe, 704 F.2d 1213, 1215-16 (11th Cir. 1983) ("Comments `on the failure of the defense, as opposed to that of the defendant, to counter or explain the testimony presented or evidence introduced is not an infringement on the [defendant's] Fifth Amendment privilege'").
In Williams, the deputy district attorney made the following statement in closing:
Ex parte Williams, 461 So. 2d at 853. This Court reversed the conviction, with instructions to the Court of Criminal Appeals to remand to the trial court for a new trial. We stated in Williams:
461 So. 2d at 853-54.
Justice Embry, in his special concurrence in Williams, stated:
Id. at 854 (Embry, J. concurring specially). We find the rationale expressed in the above language to be controlling here.
The statements in this case do not fall within the bounds set forth in Ex parte Dobard, supra, or Beecher. The district attorney clearly did not comment generally on the State's evidence standing uncontradicted. His statement falls well outside the permitted range available to a district attorney in closing and is far more prejudicial than those statements deemed to be indirect comments in Ex parte Williams, supra. See also Stain v. State, 494 So. 2d 816 (Ala.Crim.App.1986) (court unable to distinguish comment from that in Williams). We are also unable to find that the district attorney's statement constituted harmless error under the guidelines *1264 of Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967), which requires "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"; but see Marsden v. Moore, 847 F.2d 1536, 1548-49 (11th Cir.1988).
The State attempts to use United States v. Blackwood, 768 F.2d 131, 139 (7th Cir.), cert. denied, 474 U.S. 1020, 106 S. Ct. 569, 88 L. Ed. 2d 554 (1985), as support for its argument. We find that the following occurred in Blackwood, where the defendant was charged with racketeering and extortion:
768 F.2d at 139. (Emphasis added.)
The facts in Blackwood are just not analogous to the facts here. The argument presented by the Statethat the district attorney was referring to the defendant's taped statementis without merit. Our examination of the record indicates that the comment was not made in the context of a discussion of the taped statement. The content of the taped statement was simply not argued in the state's rebuttal. In fact, we find that there was no reference to the taped statement made throughout the closing arguments of the assistant district attorney and the district attorney along the lines suggested by the State. We find no argument about the content of the taped statement prior to, or at any point subsequent to, the comment made by the district attorney in that portion of the record containing the district attorney's rebuttal argument.
The district attorney's reference to taped evidence comes after the defense objection to the comment that "he ain't going to tell you." The State's argument that the comment was a permissible reference to the taped statement completely overlooks the obvious inference available to the jury that the defendant did not take the stand so as to contradict or amplify his statement. Given the context of the rebuttal, it is *1265 difficult to imagine a more specific comment on Wilson's failure to testify, notwithstanding the district attorney's later attempt to limit the comment to a reference to the taped statement.
In connection with Ala.Code 1975, § 12-21-220, the case law in Alabama contains a subsidiary doctrine that prevents a reversal of the case if the trial court sustains an objection to improper remarks and promptly and appropriately instructs the jury of the impropriety of those remarks. The trial court here overruled the objection, and we do not find the instruction given by the trial court here to be prompt, or to have been appropriately given. Here, the instruction given fails to clearly address or identify for the jury the exact statement made by the district attorney that was to be remedied. Absent such identification, the instruction can not be taken as "appropriately given" to address the state's impermissible argument.
At a minimum, under such circumstances, the trial judge should sustain the objection and immediately instruct the jury as to the impropriety of the remark made by the district attorney. In giving a curative instruction on the defendant's right not to testify, the trial judge should read the statute and explain thoroughly and immediately to the jury that the defendant's failure to testify in his own behalf shall not create any presumption against him. As we previously stated in Whitt, supra:
A curative instruction in a situation of this type, to be of any value, must be given immediately after the harmful statement is made. Further, where there can be any reasonable doubt as to the particular statement in question, the statement should be explicitly identified to the jury so that it can know what must not be considered. Anything less can in no way cure the error. See Beecher v. State, 294 Ala. 674, 320 So. 2d 727 (1975); Warren v. State, 292 Ala. 71, 288 So. 2d 826 (1973); see also United States v. Robinson, 485 U.S. 25, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988) (comments by prosecutor that respondent could have explained his story to the jury were in response to references by defendant's counsel to the Government's failure to provide respondent an opportunity to "explain" his side of the story and were not reversible error); Troup v. State, 32 Ala.App. 309, 319, 26 So. 2d 611, 620 (1946) (the case was not reversed due to the prompt and appropriate instructions given to the jury).
We find here that the comment made by the district attorney was a direct comment on the defendant's failure to testify and violated the defendant's rights as found under the United States Constitution, the Constitution of Alabama of 1901, and Ala. Code (1975), § 12-21-220. We cannot agree that the comment made by the district attorney could have been understood by the jury only as a reference to the defendant's "sketchy incriminating statement." The judgment is therefore due to be reversed and the cause remanded to the Court of Criminal Appeals with instructions to order a new trial.
REVERSED AND REMANDED.
JONES, ALMON, ADAMS and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
*1266 MADDOX, Justice (dissenting).
I must respectfully dissent. After the district attorney made his improper comment, defense counsel objected and moved for a mistrial. After the trial judge denied the motion for a mistrial, defense counsel did not ask the trial judge to give the jury a prompt curative instruction. Nonetheless, the trial judge later gave a curative instruction specifically referring to the district attorney's comment, and defense counsel stated that he was satisfied with that instruction. I do not think that a trial judge, even in a death penalty case, must automatically instruct the jury to ignore an improper comment, especially when the defendant does not ask for such an instruction; and I am reluctant to find reversible error when defense counsel states that he is satisfied with the curative instruction.
[1] Id., 451 U.S. at 472, 101 S. Ct. at 1877. The Supreme Court noted that the Fifth Circuit "carefully left open" the possibility that a defendant who intends to offer psychiatric evidence at the penalty phase of a trial could be precluded from offering such evidence unless he consents to examination by the State's own psychiatric expert. Estelle, 451 U.S. at 466 n. 10, 101 S. Ct. at 1874 n. 10. | August 17, 1990 |
2a61af42-7ed5-415b-97c3-f3b27d54c9be | Cloverleaf Plaza, Inc. v. Cooper & Co., Inc. | 565 So. 2d 1147 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 1147 (1990)
CLOVERLEAF PLAZA, INC., and DLC Partnership
v.
COOPER & COMPANY, INC.
88-1469.
Supreme Court of Alabama.
August 3, 1990.
Douglas L. Brown of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellants.
Peter F. Burns and Randall W. Nichols of Burns & Mackey, Mobile, for appellee.
JONES, Justice.
Cloverleaf Plaza, Inc. ("Cloverleaf"), and DLC Partnership ("DLC") are the former owners of Cloverleaf Plaza Shopping Center in Mobile, Alabama. Jake Doster, president of Cloverleaf and a partner in DLC, decided to sell the shopping center. Upon hearing of Doster's plans to sell, Glenn Southerland, a real estate broker with Cooper & Company Inc. ("Cooper"), contacted Doster to obtain a listing agreement for the property. Southerland told Doster that he had a purchaser for the property if Doster would sell.
*1148 On December 13, 1986, Doster signed an agreement whereby Southerland was authorized to show the property to Stuart Davies, whom Southerland had named as the potential purchaser. On the non-exclusive listing agreement, which provided for a 5% commission for Cooper, Doster wrote, "Stuart Davies, Inc.onlyJ.D.". Ultimately, the deal with Stuart Davies fell through and was never consummated. On March 6, 1987, another non-exclusive listing agreement was entered into by Cooper and Cloverleaf, signed by Doster. This agreement gave Cooper until March 16 to show the property and provided that, if the property was sold within 60 days of March 16 to a purchaser who had been shown the property during the 10-day period, Cooper would be entitled to a $100,000 commission, rather than the 5% commission provided for in the December 13 contract. The agreement also provided that Cloverleaf had the sole discretion to accept or reject any offer, and that upon a rejection Cooper would not be entitled to the commission.
Glenn Southerland presented another potential purchaser, Capital Realty Management, Inc. ("Capital"), whose lawyer, Richard Davis, began negotiations with Cloverleaf's lawyers, Tom Garth and David Johnson, with respect to the sale of the property. Cooper sent another non-exclusive listing agreement to Cloverleaf, which agreement would expire on August 31, 1987. Cloverleaf, however, never signed this listing agreement. On August 21, Capital made an offer to purchase Cloverleaf Shopping Center. The parties agree that there were two points in the offer that Cloverleaf would not accept: 1) that the seller be required to obtain estoppel letters from the tenants of the shopping center; and 2) that the seller pay off the then current management company, the amount being about $150,000. The lawyers continued to negotiate. The parties disagree as to whether, after the further negotiations, they ever reached an agreement as to the terms just mentioned. Cooper asserts that Cloverleaf agreed to pay the management company and to obtain the estoppel letters. Cloverleaf denies agreeing to either.
In the meantime, Doster, acting on behalf of Cloverleaf and DLC, was negotiating directly with Ken Montgomery, who was a real estate broker with Triple Crown Realty.[1] On September 2, 1987, Montgomery offered to purchase the shopping center for $3,025,000, which was higher than the $3,012,000 offered by Capital. Further, Montgomery's offer did not require that Cloverleaf pay the management company or obtain estoppel letters. On September 8, 1987, Capital's lawyer submitted an unsigned sales contract to Tom Garth, Cloverleaf's lawyer, reflecting their negotiations that had taken place after the original offer of August 21 had been rejected. On September 3, however, Doster had accepted an offer from Triple Crown, whose rights were then assigned to Tillman's Corner Limited Partnership. Cloverleaf paid Triple Crown a $100,000 commission. Upon hearing of the sale to Triple Crown, Capital contended that its lawyer and Cloverleaf's lawyer had reached an agreement. Cooper contended that it had presented a buyer who was ready, willing, and able to buy on terms negotiated with Cloverleaf's lawyer, and that, therefore, it was due to be paid a $100,000 commission. A jury verdict was returned in favor of Cooper, awarding it $100,000 plus interest. Judgment was entered by the trial court, after which Cloverleaf filed a motion for a JNOV or, in the alternative, a new trial on the ground that the verdict was against the great weight of the evidence. The trial court denied both of Cloverleaf's post-judgment motions, from which denial Cloverleaf appeals. We affirm.
Unless a jury verdict is unsupported by the evidence or is so against the weight of the evidence as to be manifestly and palpably wrong, a judgment based upon that verdict, which was sustained by the trial court's denial of a post-judgment motion for new trial, will not be reversed on either an "insufficiency of the evidence" *1149 ground or on a "weight of the evidence" ground. Michael v. Gunnin Pulpwood, Inc., 533 So. 2d 588 (Ala.1988). "A jury verdict is presumed correct, and no ground for a new trial is more carefully scrutinized or more rigidly limited than an assertion that a jury verdict is against the weight of the evidence." Hallman v. Summerville, 495 So. 2d 626, 627 (Ala.1986). Upon the denial of a post-judgment motion for a new trial, this presumption is strengthened "and [a verdict] will not be set aside unless so contrary to the evidence `as to convince this court that it is wrong and unjust.'" Kent v. Singleton, 457 So. 2d 356, 359 (Ala. 1984) (quoting Dixie Electric Co. v. Maggio, 294 Ala. 411, 414, 318 So. 2d 274, 276 (1975)). Further, a motion for a JNOV is properly denied where there exists any conflict in the evidence for consideration by the jury. Isbell v. Smith, 558 So. 2d 877 (Ala.1989) (citing Gary v. Kirkland, 514 So. 2d 970, 971 (Ala.1987); Elrod v. Ford, 489 So. 2d 534, 537 (Ala.1986)). Applying these standards to the facts of this case, we conclude that the trial court properly denied both post-judgment motions.
Cloverleaf and DLC argue that a commission is not owed Cooper because, they say, there was no listing agreement in effect at the time Capital was presented as a potential purchaser. They argue that the agreement entered into on December 13, 1986, was ineffective because it was limited to Stuart Davies; that the second agreement expired by its own terms on March 16, 1987; and that Doster never signed the third and final agreement that Cooper presented Cloverleaf in August 1987, which was to expire on August 31, 1987. Without a valid listing agreement, Cloverleaf argues, no commission is due. However, in Alabama, a contract between a seller and real estate broker, whereby the broker is to procure a purchaser for realty, need not be in writing. Hover v. Whittaker-Warren Agency, 56 Ala.App. 255, 321 So. 2d 213 (Ala.Civ.App.1975). Further, a signature is merely an indication of mutuality and assent, which may be shown in other ways; and, if a contract is accepted and acted upon, it need not be signed, provided a statute does not provide otherwise. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297 (Ala.1986). Capital's lawyer, Richard Davis, testified in deposition that he dealt solely with Cloverleaf's lawyer, because of ethical considerations. Further, he testified that after hearing about the deal between Doster and Triple Crown, he was told by Cloverleaf's lawyers to just sit back and wait because it was doubtful that that deal would go through, and then Capital would be back in the "driver's seat." Southerland, Cooper's broker, testified that he was told by Garth, "[D]on't worry about your commissionit's covered."
Moreover, the jury was entitled to infer from the totality of the evidence that Cloverleaf's lawyer was authorized to pursue negotiations for the sale of the property to Cooper's client and that the terms of the sale as agreed upon through these negotiations with Cooper's client amounted to the procurement of a "ready, willing and able" purchaser of the Cloverleaf property. As this Court has stated:
Herrington v. Hudson, 262 Ala. 510, 514, 80 So. 2d 519, 522 (1955).
In summation, the evidence was such that a reasonable jury could have gone either way; however, the jury rendered its verdict in favor of Cooper, and this Court will not disturb the judgment entered thereon.
Accordingly, this judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Cloverleaf's lawyers testified that they were not aware of Doster's negotiations with Montgomery. | August 3, 1990 |
3da4373c-4d9e-4e90-a744-e4f430b80709 | Meadows v. FIRST NAT. BANK OF ASHFORD | 568 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 303 (1990)
Mary Pauline MEADOWS, individually and as administratrix of the Estate of Robert E. Meadows, deceased
v.
FIRST NATIONAL BANK OF ASHFORD, ALABAMA.
89-787.
Supreme Court of Alabama.
August 31, 1990.
C.H. Espy, Jr., Dothan, for appellant.
James D. Farmer of Farmer & Farmer, Dothan, for appellee.
STEAGALL, Justice.
Mary Pauline Meadows appeals from a final judgment rendered by the Circuit Court of Houston County in an estate administration proceeding.
Robert E. Meadows died intestate on March 2, 1977. He was survived by his spouse, Mary Pauline Meadows, and four children. Mrs. Meadows was appointed administratrix of the estate by the Probate Court of Houston County on May 2, 1977. During the following years, Mrs. Meadows handled collection of estate revenues and payment of estate expenses.
In December 1984, First National Bank of Ashford, Alabama, obtained a $60,861.57 judgment against Robert B. Meadows, one of the heirs of Robert E. Meadows. At that time, the estate remained undivided.
On November 17, 1986, pursuant to a petition for removal filed by First National Bank, the administration of the estate was removed from the Probate Court of Houston County to the Circuit Court of Houston County. On the same day, First National Bank filed a complaint against Mrs. Meadows, individually and as the administratrix of the estate of Robert E. Meadows, demanding an accounting by Mrs. Meadows of all income and expenditures relating to the estate from March 2, 1977; a judgment against Mrs. Meadows, individually and as administratrix of the estate, for any sums that the court should find Mrs. Meadows used for her own benefit to the detriment of the estate; and a lien against the interest of Robert B. Meadows in the estate, pursuant to First National Bank's judgment against Robert B. Meadows.
After an ore tenus hearing, the trial court, on August 21, 1989, entered an order making the following findings of fact:
On October 2, 1989, the trial court entered a final order setting forth the annual credits to the estate as income, together with the fees and expenses due the administratrix, arriving at a final balance held in the estate and holding that the judgment lien attached to the undivided ¼ interest of Robert B. Meadows. On October 31, 1989, Mrs. Meadows filed a motion to alter, amend, or vacate the judgment, which was denied.
In Humphries v. Whiteley, 565 So. 2d 96 (Ala. 1990), this Court stated:
565 So. 2d at 101-02.
Mrs. Meadows's basic argument is that the trial court incorrectly resolved the accounting question. She also argues that under the law as it existed in 1977, Robert B. Meadows was entitled to only a 1/5 interest in the estate. However, upon review of the record before us, we find that the trial court's findings are supported by credible evidence. An examination of the facts surrounding the estate administration and the law applicable thereto shows that the conclusion of the trial court is not plainly and palpably wrong.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur. | August 31, 1990 |
bb14665f-09e2-467a-96d2-9d16f04a4b03 | Megginson v. Turner | 565 So. 2d 247 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 247 (1990)
Ken MEGGINSON; the Democratic Party of the State of Alabama; and John Baker as state party chairman for the Democratic Party of Alabama
v.
J.E. TURNER.
89-1390.
Supreme Court of Alabama.
July 27, 1990.
Special Opinion Substituted on August 3, 1990.
Robert S. Edington, Mobile, for appellant.
Norman J. Gale, Jr. of Clay, Massey & Gale, Mobile, for appellee.
Richard F. Allen of Capell, Howard, Knabe & Cobbs, Montgomery, for amicus curiae Perry A. Hand, as Secretary of State.
Justice Maddox's Special Opinion Substituted on August 3, 1990.
*248 PER CURIAM.
The plaintiff, J.E. Turner, the Republican nominee for the House of Representatives, District 102, sued Perry Hand, as secretary of state of the State of Alabama; John Baker, as state party chairman for the Democratic Party of Alabama; L.W. Noonan, as probate judge of Mobile County; Ken Megginson; and the Democratic Party of the State of Alabama, alleging that Ken Megginson was not a legally qualified candidate for the Democratic nomination for election to the House of Representatives from District 102, because, Turner alleges, Megginson failed to timely file a statement naming his principal campaign committee as required by Ala.Code 1975, § 17-22A-4. Turner sought injunctive relief restraining the defendants from issuing a certificate of nomination to Megginson. The Circuit Court of Mobile County granted the injunctive relief, and this expedited appeal followed.
After studying the record and the briefs of counsel and amicus curiae, we conclude that the trial court's ruling removing Megginson as a candidate is due to be affirmed, on the authority of the cases cited by the trial court.
Our affirmance, however, is not to be understood as agreement with the plaintiff that the trial court's judgment prevents the Alabama Democratic Party from exercising its prerogative, as provided by § 17-16-41, to nominate a candidate for the nomination vacated by the court's judgment. Because the trial court had no jurisdiction to determine whether the party could fill the vacancy, we decline to interpret its judgment as holding that it could not. Indeed, we construe the trial court's statement that "his name may not appear on the ballot for the general election" as being made in the context of the only issue over which it had jurisdiction: whether, after qualifying as the only candidate for the Democratic Party's nomination for the office in question, Megginson's failure to meet the five-day deadline prescribed by § 17-22A-4 requires his removal as a candidate and thus creates a vacancy that is subject to being filled pursuant to § 17-16-41.
Further, we find nothing in the statute or in the cases cited by the appellee that prevents the Democratic Party's executive committee from exercising its prerogative to fill the vacancy by such a method as the committee "may see fit to pursue." § 17-16-41. The appellee's reliance on Harris v. Weatherford, 459 So. 2d 876 (Ala. 1984), is misplaced. Because Harris failed to file his initial qualifying paper with the appropriate office, he never became a candidate, and thus his "disqualification," under those circumstances, did not create a vacancy. Here, Megginson properly qualified as a candidate, as defined by § 17-22A-2 and thus was subject to the *249 five-day requirement of § 17-22A-4. Because he then failed to meet the five-day statutory deadline, his candidacy was revoked and a vacancy occurred.
AFFIRMED.
HORNSBY, C.J., and JONES, ALMON, ADAMS, STEAGALL and KENNEDY, JJ., concur.
HOUSTON, J., concurs in the result.
MADDOX, J., concurs in part and dissents in part.
SHORES, J., not sitting.
MADDOX, Justice (concurring in part; dissenting in part)
When I filed my special opinion in this case on July 27, 1990, it was my understanding that the Democratic Executive Committee was scheduled to meet that day. In view of the fact that the Committee did not meet that day, and in view of the fact that I did not have sufficient time to write an opinion adequately expressing the reasons for my dissenting views, I have now taken the time to more fully state the reasons why I think that there is no vacancy which the Democratic Party can fill under the provisions of Alabama law. I especially wanted my dissenting opinion to contain what I consider to be the critical question in this case: What the legislature intended by the words "where a vacancy may occur in any nomination," which are contained in Ala.Code 1975, § 17-16-41.[1] I now withdraw that special opinion filed July 27, 1990 and substitute the following opinion, which expands on the reasons why I think that there is no vacancy that the Democratic Party can fill under the provisions of Alabama law:
I concur completely in that portion of the opinion that affirms the trial judge's determination that Megginson could not be certified as the nominee of the Democratic Party for House District 102. I must respectfully disagree, however, with the conclusion of the majority that Megginson's removal as a candidate authorizes the Alabama Democratic Party, under the provisions of Ala.Code 1975, § 17-16-41, to nominate a candidate to appear on the general election ballot, because, under the facts of this case, there was no "nomination" by the Democratic Party of Megginson that could have become vacant within the meaning of the law when it was determined that Megginson had failed to become the Democratic nominee because of his failure to comply with the provisions of law regulating the holding of primary elections in this State.[2]
The legislature of this State has provided the method for determining when there is a "vacancy" in a "nomination" made by a political party and has provided for a party executive committee to fill a vacancy in a nomination under certain circumstances. Section 17-16-41 provides:
(Emphasis added.)
The critical question, of course, is whether there had been a nomination as contemplated by this statute. Under the facts of this case, I do not believe that Megginson ever became the nominee of the Democratic Party, because he admittedly failed to comply with the election laws governing *250 the holding of primary elections. Because he was the only candidate for the office he sought, his failure to comply with the law, in my opinion, left the Democratic Party without a nominee for this particular general election. I think that the legal position of the party is the same as if no one had declared as a candidate to become the nominee of the party.
The law that applies in this case is contained in at least three cases of this Court: Harris v. Weatherford, 459 So. 2d 876 (Ala. 1984); Foster v. Dickinson, 293 Ala. 298, 302 So. 2d 111 (1974); and Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967).
In Harris v. Weatherford, a case the majority cites and attempts to distinguish unsuccessfully, I believeregistered voters in Mobile sought to prevent the name of one Cecil B. King from being certified or printed on the general election ballot as a Republican nominee for a district court judgeship. In that case, the Republican Party wanted to certify King as the Republican nominee under the provisions of Ala. Code 1975, § 17-16-41, on the ground that a "vacancy" had occurred because one Joseph D. Thetford, who had filed his declaration of candidacy for the judgeship, had withdrawn his name from consideration as a candidate. Thetford had filed his "declaration of candidacy" in Mobile County in the office of William Stoudenmire, who was chairman of the Mobile County Republican Committee and who was a member of the State Republican Committee. In that case, the Court found that Thetford's filing in Mobile did not comply with the statutory requirement that all candidates for nomination to state public office "shall file their declaration of candidacy with the state party chairman." 459 So. 2d at 879.[3]
The majority seeks to distinguish Harris v. Weatherford on the following grounds:
I find the majority's distinction troubling. This Court in Harris v. Weatherford stated the reason for its holding, as follows:
459 So. 2d at 880.
Unquestionably, the reason the Court gave in Harris v. Weatherford for determining that there was no "vacancy" was the fact that Thetford had failed to comply with the mandatory requirements of law. What is different here? I find nothing. Megginson failed to comply with the law.
Megginson's distinction of Harris v. Weatherford, contained in a reply brief, is just as troubling. He says, "[W]hen Megginson was certified by Honorable John Baker, Chairman of the Democratic Party, as the Democratic Party's nominee for House District 102, Megginson became, in truth and in fact, the duly qualified nominee of the Democratic Party," and "He was such duly qualified nominee at least until the expiration of the five days subsequent to his qualifying with the Democratic Party (by whatever means those days may be calculated)." Megginson seems to suggest he became the "nominee" when he filed his declaration of candidacy, and then ceased to be the nominee when he failed to file the papers appointing his finance committee. That cannot be the law; clearly he was not the nominee as soon as he filed his declaration.
Except for the fact that the reason for the disqualification in this case is the failure of the candidate to timely file a statement naming his principal campaign committee, as required by Ala.Code 1975, § 17-22A-4, and in Harris v. Weatherford the disqualification was based upon the candidate's failure to file his declaration of candidacy with the proper person, I can find no legal differences in the two cases:
*252 Not only do I fail to find any legal distinction between the facts of Harris v. Weatherford and the facts of this case, my research shows that the holding in Harris v. Weatherford is consistent with the holding of this Court in Herndon v. Lee, 281 Ala. 61, 199 So. 2d 74 (1967), a case in which a candidate for sheriff of Greene County sought to enjoin the judge of probate from placing the name of another candidate for sheriff on the general election ballot. In that case one Gilmore claimed to be the nominee of the Greene County Freedom Organization, claiming to have been nominated at a mass meeting, and the question presented in the case was when Gilmore had legally declared his candidacy, because there was a question whether he had failed to comply with the very same provisions of law that are involved here. The question was whether his declaration of candidacy was made on May 3, 1966, when a certificate of nomination was filed with the judge of probate. In that case, Gilmore attempted to become the nominee by, on September 9, 1966, filing a certificate in which he declared that he wished to become a candidate for sheriff, in effect attempting to say that he had not declared his candidacy on May 3, 1966. This Court held that "the announcement of Gilmore's candidacy occurred on May 3, 1966, when the certificate of the mass meeting was filed," and that "his name shall not be allowed to go on the ballot."
The controlling case on whether there has occurred a "vacancy ... in any nomination" is this Court's case of Foster v. Dickinson, 293 Ala. 298, 302 So. 2d 111 (1974). In that case, this Court had an opportunity to determine what the legislature intended when it used the words "where a vacancy may occur in any nomination" in § 17-16-41. In Foster v. Dickinson, cited in Harris v. Weatherford, the Democratic Party argued, and this Court agreed, that the word "vacancy" in that phrase was to be distinguished from a party's failure or omission to nominate in the primaries. The report of the case in 293 Ala. at 299, 302 So. 2d 111 shows that the Democratic Party argued, in brief, that the words should be construed as the Florida Supreme Court had construed similar words of a Florida statute in State ex rel. Chamberlain v. Tyler, 100 Fla. 1112, 130 So. 721 (1930), a case which this Court cited in Foster v. Dickinson. See the synopsis of the brief of the Democratic Party in Foster v. Dickinson, 293 Ala. at page 299, 302 So. 2d 111, which states that the party argued that this Court should follow the reasoning of the Florida court which held that: "... Thus the phrase `or if for any cause there is a vacancy in any nomination,' interpreted according to the doctrine just stated [ejusdem generis], means vacancies which may occur through death, removal, resignation, or other incapacity of a person theretofore nominated for such office in the primary election, as, for instance, by insanity, conviction of felony, etc." (Emphasis added.) The thrust of the party's argument in Foster v. Dickinson, as I read that argument, was that there had never been a nomination and, therefore, that there could be no "vacancy" under the terms of § 17-16-41. I agreed with the party's argument in that case, because I thought it correctly interpreted the provisions of § 17-16-41. I cannot agree with the argument made in this case, however, that somehow Megginson became the nominee and then ceased to be the nominee. He never became the nominee of the party, because he failed to comply with the requirements of law that govern the holding of primary elections in this State.
The effect of this Court's decision in Foster v. Dickinson is that § 17-16-41 deals with a "nomination," not with a candidacy. The sole issue in that case was what the legislature meant when it used the words "where a vacancy may occur in any nomination," the same issue that is *253 presented here. The Court, in that case, cited State ex rel. Chamberlain v. Tyler, 100 Fla. 1112, 130 So. 721 (1930), in which the Florida Supreme Court was called upon to construe similar language in a Florida statute. The Florida court construed the words "vacancy in nomination" as follows:
(Emphasis added).
I could not say it better. It is clear to me that Megginson never became the nominee of the Democratic Party, and it is clear to me that there can be no vacancy in a nomination that never took place. The candidate here, Megginson, is in the same legal position as the candidates in Harris v. Weatherford, Herndon v. Lee, and Foster v. Dickinson. In short, it is my opinion that Megginson's status as the nominee of the Democratic Party in the primary election, and, therefore, his qualification to have his name placed on the general election ballot as the party nominee have been determined adversely to him, because of his omission to comply with the provisions of law governing primary elections. The party may have a vacancy on its ticket for the legislative post that he sought, but there was no vacancy in a nomination. In fact, the party's nominee has not yet been selected, and in this general election I do not believe one can be at this time because of the facts of this case. Consequently, I must respectfully dissent as to that portion of the opinion that would permit the Alabama Democratic Party to declare that a vacancy exists under the provisions of § 17-16-41.
[1] Ala.Code 1975, § 17-22A-4, provides, in pertinent part:
"Within five days after any person becomes a candidate for office, such person shall file with the secretary of state or judge of probate, as provided in section 17-22A-9, 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, together with a written acceptance or consent by such committee, but any candidate may declare himself or herself as the person chosen to serve as the principal campaign committee, in which case such candidate shall perform the duties of chairman and treasurer of such committee...."
[1] Thomas Jefferson thought that each judge should write an opinion in every case so as to "throw himself in each case on God and country; both will excuse him for error and value him for honesty." The Dissent: A Safeguard of Democracy, 32 J.Am.Jud.Soc'y, 106 (1948).
[2] The majority states, "[W]e find nothing in the statute or in the cases cited by the appellee that prevents the Democratic Party's executive committee from exercising its prerogative to fill the vacancy by such a method as the committee `may see fit to pursue,'" citing Ala.Code 1975, § 17-16-41.
[3] The Court in Harris v. Weatherford affirmed an order of the trial court that had concluded, in part, as follows:
"The Court further concludes and declares that Thetford did not legally qualify as a candidate for the Republican nomination for such Judgeship and, therefore, there was no vacancy which could be filled by the Republican Party under § 16-16-41. Foster v. Dickinson, 293 Ala. 298, 302 So. 2d 111 [(1974)]. Therefore, King's name should not be printed on the general election ballot. "ORDER AND JUDGMENT
"In accordance with the foregoing Findings of Fact and conclusions of Law, it is the ORDER and JUDGMENT of the Court that the Defendant Harris and Defendant Siegelman refrain from certifying the nomination of Cecil B. King as a nominee or candidate for the office of Judge of the District Court of Alabama for Mobile County, Place No. 1, or in the event either of them have issued such a certification prior to the issuance of this Order that they are hereby directed to withdraw or rescind such certification."
459 So. 2d at 880.
[4] Although it does not appear from the report of the case, the facts in Harris v. Weatherford show that the candidate in that case who was held to have failed to comply with the election laws had been certified to the secretary of state as the Republican nominee. I examined the original record in that case; the subject candidate in that case (Thetford) was certified by the Republican Party to the secretary of state as the candidate for the judgeship to which he aspired. The record of that case shows in testimony by Marty Conners, executive director of the Republican Party, the following:
"Q. And after you received Mr. Thetford's papers and they were accepted by the state party, did the party then certify to Mr. Siegelman [secretary of state] their approval that Mr. Thetford was the candidate?
"A. Yes, sir, we did. On the 11th, I believe.
"THE COURT: Say that again. What did you do?
"MR. CONNERS: We sent this certification to the secretary of state certifying Joseph Thetford as [the candidate]." | August 3, 1990 |
952cc716-757f-4b12-9303-c2d637b3ec06 | US Fidelity & Guar. Co. v. Lehman | 579 So. 2d 585 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 585 (1990)
UNITED STATES FIDELITY & GUARANTY COMPANY
v.
James H. LEHMAN, Jr., and Cynthia B. Lehman.
88-1483.
Supreme Court of Alabama.
September 7, 1990.
Rehearing Denied April 19, 1991.
Donna S. Pate of Lanier, Ford, Shaver & Payne, Huntsville, for appellant.
Trey Riley, Huntsville, for appellees.
ADAMS, Justice.
This is an uninsured motorist case with a very interesting set of facts. James H. Lehman, Jr., was employed as a salesman at Regal Nissan automobile dealership in 1986. He agreed one day to accompany Mark McCauley, who purported to be a potential customer, to McCauley's home in order to pick up his automobile. It was Lehman's understanding that McCauley was planning to use it as a trade-in for a Nissan. The two left the dealership in a Nissan 300-ZX that was owned by the dealership. McCauley drove. When they turned onto the street where McCauley had said he lived, however, McCauley slowed the car down, cut Lehman's throat with a switchblade, and said "I'm going to kill you. You're going to die." Lehman sustained a stab wound to his chest and cuts on his hands during his attempt to fend off the attack. After managing to kick the gear shift lever and thereby put the transmission into reverse gear, Lehman succeeded in getting out of the car. McCauley drove away. McCauley was later arrested and is presently serving a prison sentence based on his actions that day. As a result of the incident, Lehman had certain medical expenses, which were covered by workman's compensation. He and his wife sued U.S.F. & G., seeking benefits under their uninsured motorist coverage. The trial judge awarded Lehman $100,000 and his wife $20,000. We reverse and remand.
The Lehman policy with United States Fidelity & Guaranty defines "uninsured motor vehicle" and gives the circumstances under which the insurance company will make payment:
*586 We do not have to address the question of whether, within the meaning of the policy, the vehicle involved in the incident was "uninsured" under the facts of this case, because, even if we assume for the purpose of argument that the vehicle was uninsured, we nevertheless would have to reverse because of other language quoted above.
The trial judge cited Alabama Farm Bureau Mutual Casualty Insurance Co. v. Mitchell, 373 So. 2d 1129 (Ala.Civ.App. 1979), as authority for the judgment awarded to the Lehmans. In that case, Mrs. Mitchell was knocked unconscious by Donald Ray Brown, who then placed her in the trunk of her car. Brown then drove the car for a couple of days and abandoned the car when it ran out of fuel. From the evidence offered, it appeared that Mrs. Mitchell was alive when she was placed in the trunk and that she died while there.
At first glance, the Mitchell case appears to be on all fours with the case before us. However, we are faced with a question not answered in the Mitchell opinion. We must determine whether Lehman's injuries arose out of the "ownership, maintenance, or use" of the uninsured vehicle.
Annot., Automobile Liability Insurance: What are accidents or injuries "arising out of ownership, maintenance, or use" of insured vehicle, 15 A.L.R. 4th 10, 17 (1982).
In Mitchell, the victim died after being placed in the trunk of the automobile, and because of the length of time she was left there, it could be inferred that her death was due to suffocation there as opposed to her previous wounds. Therefore, the car itself was an instrument used in her murder and, thus, her death could be said to arise out of the "ownership, maintenance, or use" of the vehicle (assuming, of course, that the Mitchell automobile was "uninsured" within the meaning of the policy, a question obviously not before us now). The injuries involved here occurred in a moving vehicle, but the injuries themselves were caused by stab wounds and not by some "use" of the motor vehicle. In other words, although Lehman happened to be attacked while in a vehicle, the vehicle itself was merely the location of an attack that could have occurred anywhere. The injuries did not result from "use" of the automobile as that term is used in the policy.
The judgment is hereby reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | September 7, 1990 |
8b4fd544-3f83-4c7c-9d27-9e54c50b3a13 | Betts v. McDonald's Corp. | 567 So. 2d 1252 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1252 (1990)
Ira M. BETTS, Jr., individually and d/b/a Betts Properties
v.
McDONALD'S CORPORATION.
89-785.
Supreme Court of Alabama.
August 31, 1990.
*1253 William Dudley Motlow, Jr. of Porterfield, Harper & Mills, Birmingham, for appellant.
John A. Owens and Jeffrey L. Riley of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellee.
STEAGALL, Justice.
Plaintiff Ira M. Betts appeals from the summary judgment in favor of defendant McDonald's Corporation on all counts of his complaint. At issue is a real estate brokerage fee that Betts, a licensed Alabama real estate broker, claims McDonald's owes him.
McDonald's contacted Betts in June 1988 about securing property in Fayette, Alabama, suitable for the construction of a McDonald's restaurant. After locating certain property owned by James F. Smith and David H. Patterson, Betts prepared a real estate contract with a total sale price of $81,500. The contract was signed on June 20, 1988, and provided, in part, as follows:
That same day, Betts and Smith and Patterson signed a "brokerage fee agreement," which required Smith and Patterson to pay Betts a broker's fee equal to 10% of the sales price, or $8,150. Also on that date, Betts signed a "broker's statement," which provided that "the aforementioned commission, fee or remuneration is due and payable from the seller only, and ... the purchaser has no obligation whatsoever for said commission, fee or remuneration."
McDonald's did not deposit the earnest money in escrow until sometime in November 1988. It nonetheless tested the soil and found it to be contaminated.[1] As a result, McDonald's informed Smith and Patterson that it did not want the property and instructed Betts to look for other land. Thereafter, McDonald's decided to go ahead with the purchase and attempted to take further soil samples, but was precluded from doing so by Smith and Patterson.[2] McDonald's subsequently filed suit, seeking a 30-day extension of the 180-day purchase period, as well as a preliminary injunction preventing Smith and Patterson from prohibiting it from entering the property to test the soil. The trial court granted both the extension and the injunction.
The transaction was later concluded and on the day of the closing, Smith and Patterson executed a warranty deed conveying the property to McDonald's; however, Smith and Patterson did not pay Betts his *1254 commission as they were obligated to do under the brokerage fee agreement. Betts subsequently sued McDonald's and Smith and Patterson and their wives, Frances and Barbara, on June 15, 1989,[3] alleging the following: interference with contractual or business relations; conspiracy to interfere with contractual or business relations; outrage; fraud; breach of contract; and, by amendment, waiver; estoppel; quantum meruit; and reformation.[4] After a hearing, the trial court on February 14, 1990, entered summary judgment for McDonald's on all counts. Betts appeals. Neither the Smiths nor the Pattersons are parties to this appeal.
The gist of Betts's claim for tortious interference is two-fold: 1) That McDonald's should have, at the very least, withheld the amount of Betts's commission on the date of the closing when it paid Smith and Patterson, and 2) that the delay by McDonald's in placing the earnest money in escrow led Smith and Patterson to refuse to pay Betts his commission. A review of the elements of the tort of intentional interference with contractual or business relations shows these claims to be without merit. In order to succeed on that cause of action, the plaintiff must prove the following:
Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590, 597 (Ala.1986) (emphasis added) (footnotes omitted).
McDonald's based its motion for summary judgment on the broker's statement, which specifically obligated Smith and Patterson to pay Betts's commission. This document, however, would not have precluded an action for tortious interference if Betts could have shown that McDonald's had intentionally interfered with the brokerage fee agreement Betts had with Smith and Patterson or had intentionally interfered with Betts's business relations with Smith and Patterson.
There is no question that Betts had a contract with Smith and Patterson as well as ongoing business relations, nor is it disputed that McDonald's was aware of that contract and those relations. There is, however, no evidence that McDonald's intentionally interfered with the contract or the business relations.
McDonald's was required, under its real estate contract with Smith and Patterson, to pay them $81,500 on the date of closing. To pay them any less than that amount would have been a breach of that contract. Furthermore, there is no correlation between the delay by McDonald's in opening the escrow account and Smith and Patterson's failure to pay Betts his commission. Had they wanted to, Smith and Patterson could have exercised their right under the real estate contract to terminate it after the delay, in which case they would no longer have been obligated under the brokerage fee agreement to pay the commission.[5]
*1255 To withstand a motion for summary judgment, once the movant makes a prima facie showing that there is no genuine issue of material fact, the non-movant must (in cases filed after June 11, 1987) show that there is "substantial evidence" in support of his position. See Ala.Code 1975, § 12-21-12. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989).
In opposition to the McDonald's motion for summary judgment, Betts relied on one of Smith and Patterson's answers to an interrogatory:
While that answer might have some bearing on why Smith and Patterson breached their brokerage fee agreement with Betts, it in no way constitutes substantial evidence that McDonald's intentionally interfered with that contract. There is absolutely no evidence that McDonald's encouraged Smith and Patterson not to pay the commission or that it prohibited them from doing so. Thus, summary judgment with regard to that count was correct.
Finally, because Betts's tortious interference claim fails, the conspiracy claim must also fail, there being no actionable wrong to support it. Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983), appeal after remand, Ex parte Purcell Co., 451 So. 2d 801 (Ala.1984). See, also, Cornelius v. Austin, 567 So. 2d 1245 (Ala.1990).
There is, likewise, no evidence that McDonald's ever waived its rights under the broker's statement. In fact, it has relied on that document since it was signed and, as previously indicated, the broker's statement was the basis of the motion by McDonald's for summary judgment. Moreover, Betts has shown no evidence that McDonald's ever expressly or impliedly indicated that it would be responsible for the commission so as to suggest that McDonald's should now be estopped from denying responsibility for the commission.
For the same reason, Betts's quantum meruit argument fails. "It has long been recognized in Alabama that the existence of an express contract [here, the broker's statement] generally excludes an implied agreement relative to the same subject matter." Vardaman v. Florence City Board of Education, 544 So. 2d 962, 965 (Ala.1989) (citations omitted).
In conclusion, Betts concedes in his brief that "it cannot be argued in this appeal that the claim for outrage would survive such that it could be submitted to a jury." Rather, he argues that he should be allowed an opportunity for additional discovery in order to develop his claim of outrage. Betts had that opportunity prior to this appeal and failed to present substantial evidence to support that cause of action. Therefore, the summary judgment concerning it was appropriate.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur.
[1] Smith and Patterson had purchased the property from Exxon Corporation, an oil company.
[2] Smith and Patterson had not terminated the contract with written notice.
[3] The "substantial evidence rule," which became effective June 11, 1987, is the applicable standard in this case. See Ala.Code 1975, § 12-21-12.
[4] Betts's appeal addresses only his claims based on interference with contractual or business relations, conspiracy, waiver, estoppel, quantum meruit, and outrage; therefore, we will confine our review to those issues. See Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987).
[5] Although the brokerage fee agreement states that "the closing attorney or escrow agent will deduct this fee from the proceeds of the sale at the actual final closing of the above described property and forward same to BETTS PROPERTIES," neither McDonald's nor the closing attorney was a party to that contract; it was signed only by Smith and Patterson and Betts. | August 31, 1990 |
eaca61f7-5fe7-42d3-9603-d6c4ad459bca | City of Fort Payne v. Fort Payne Athletic Ass'n, Inc. | 567 So. 2d 1260 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1260 (1990)
CITY OF FORT PAYNE and W.M. Beck, Sr.
v.
FORT PAYNE ATHLETIC ASSOCIATION, INC., et al.
89-101.
Supreme Court of Alabama.
August 31, 1990.
*1261 W.W. Watson of Watson and Watson, and Patrick H. Tate and Robert D. Beck of Beck and Beck, Fort Payne, for appellants.
Steven G. Noles and Robert G. Wilson, Fort Payne, for appellees.
ALMON, Justice.
This is an appeal from a judgment entered in favor of the Fort Payne Athletic Association, Inc. ("the Association") and 42 of its shareholders, and against the City of Fort Payne ("the City") and W.M. Beck, Sr., one of the Association's minority shareholders, in a declaratory judgment action. The Association and its majority shareholders brought this action seeking a declaration of their rights to dissolve the Association, and specifically a declaration that they had the right to sell the athletic field that is the Association's only asset and to distribute the proceeds. The City and Beck are attempting to prevent a sale of the field. The questions presented are: (1) whether the Association is a valid legal entity qualified to do business in Alabama; (2) whether the Association has retained ownership of the field or dedicated it to the City; (3) whether an unrecorded lease of the field from the Association to the City remains in effect; and (4) whether the Association is prohibited from selling the field and distributing the proceeds to its shareholders by Ala.Code 1975, § 10-3A-141(3).
The Association was incorporated in 1940. Its articles of incorporation included the following provisions in its statement of the Association's purposes and powers:
(Emphasis added.)
To raise the funds needed to accomplish its stated purposes, the Association sold shares of stock to Fort Payne residents, raising approximately $4,500. The Association used $2,500 of those funds to buy the property that is the subject of this dispute. After the property was obtained, members of the Association contributed material and labor to build the athletic field and managed it until 1950. At that time the Association did not have the financial resources to continue to maintain the field properly, and the directors decided to lease the field to the City. A lease was executed in 1950 for a 20-year term, with an option to renew for an additional 20 years. However, that lease was never recorded and none of the parties was able to produce the original lease or a copy of it. Although no evidence was produced that showed that the City exercised its renewal option upon the expiration of the original 20-year term in 1970, the City continued to use the field.
Initially, this action was brought by a group of minority stockholders against the Association. However, stockholders owning a majority of the Association's stock joined the original plaintiffs, and the Association was realigned as a party-plaintiff with the City and Beck as defendants. In 1989 the trial court issued an order, with detailed findings of fact, that resolved the disputes between the parties. The court held that the Association was a corporation in good standing; owned the athletic field in fee simple; and had the legal authority to sell the field and, upon dissolution of the corporation, to distribute the proceeds to its shareholders. The court denied the defendants' motion for a new trial, and the City and Beck appeal.[1]
The appellants argue that the corporation forfeited its existence by failing to hold annual meetings of the stockholders and of the board of directors for a number of years. However, Ala.Code 1975, § 10-3A-28(b), a section of the Alabama Nonprofit Corporation Act, provides:
(Emphasis added.) In addition, noted authorities on the law of corporations have written:
D. Nelson & M. Wasiunec, 16A Fletcher Cyclopedia of the Law of Private Corporations § 7996 at 65 (1988 rev.). The same authorities have noted:
16A Fletcher, supra, § 7967 at 11.
Although the Association was quiescent for a long time, the evidence shows that it regularly paid franchise taxes and permit fees to the State and formally resumed active operations with a meeting of its shareholders on August 3, 1988, during which officers were elected and other business *1263 was transacted. For the reasons stated above, the trial court's ruling that the Association was a corporation in good standing is correct.
The deed by which the Association acquired the property contained no restrictions or limitations. Although the appellants do not dispute that the Association was the lawful owner of the property until 1950, they contend that the Association dedicated the field to the City during that year.
Dedications may be classified as either express or implied, and can be of either the statutory or the common law variety. Cottage Hill Land Corp. v. City of Mobile, 443 So. 2d 1201, 1202 (Ala.1983). Although statutory dedications are necessarily express, common law dedications may be either express or implied. 443 So. 2d at 1203. In this case there was no evidence of a statutory dedication presented, and it appears that the appellants are arguing that the City obtained ownership of the property by an implied, common law dedication.
To constitute a dedication at common law, there must be an unequivocal intention on the part of the owner to dedicate the property and acceptance by the public or a person or body authorized to act on behalf of the public. Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So. 2d 664 (1972). Because the act of dedication is in the nature of a conveyance of title, it can be made only by the owner; the burden of proving it is a difficult one and it rests upon the party asserting the dedication. O'Rorke v. City of Homewood, 286 Ala. 99, 237 So. 2d 487 (1970). That burden can be met only by producing clear and cogent evidence showing a clear intention on the part of the owner, and the acts relied on to establish a dedication must be unequivocal in their indication of the owner's intention to create a public right exclusive of its own. Id.
The evidence presented by the appellants did not satisfy that burden. They relied on two acts to support their contention that the Association dedicated the property: (1) a speech by the mayor of Fort Payne in 1950, wherein he "dedicated" the athletic field to the children of the City; and (2) the leasing of the field to the City by the Association. Neither of those acts is sufficient evidence of a common law dedication. There was no evidence presented that showed that the mayor was authorized to speak for the Association; therefore his speech did not reflect an unequivocal intention on the part of the owner to dedicate the property. McNabb, supra. In addition, because a dedication is essentially a conveyance of title, O'Rorke, supra, the fact that the Association chose to lease the property, thereby retaining ownership, evidences an intent contrary to dedication. The trial court's ruling on this issue was correct.
The appellants also contend that the lease executed in 1950 for a 20-year term, with an option to renew for an additional 20-year term, is still in effect. However, that lease was never recorded. Ala.Code 1975, § 35-4-6 (Supp.1989), states that leases that are not recorded within one year of their execution are not valid for more than 20 years. Therefore, the lease between the Association and the City was voided by operation of law in 1970 and does not stand as a bar to the Association's plan to sell the field.
Finally, the appellants argue that Ala.Code 1975, § 10-3A-141, part of the Alabama Nonprofit Corporation Act, would prevent the Association from selling the field and would instead require it to transfer the field to an organization involved in substantially similar activities in the event of a corporate dissolution. That section is reproduced, in relevant part, below:
(Emphasis added.)
The trial judge ruled that § 10-3A-141(3) did not apply in this case because the deed conveying the property to the Association did not contain conditions or limitations on the property's use. The trial judge also noted that the Association had reserved for itself all of the rights and privileges held by private corporations, including the right to buy, hold, and sell real property. Although there are no cases interpreting this Code section, the trial judge's interpretation is a logical construction of the language employed in § 10-3A-141(3). In addition, § 10-3A-141(5) allows for assets that are not restricted by the terms of their conveyance or by the corporation's articles of incorporation to be distributed to "such persons, societies, organizations or domestic or foreign corporations, whether for profit or nonprofit, as may be specified in a plan of distribution adopted as provided in this chapter."
This Court agrees with the trial court's ruling that § 10-3A-141(3) does not apply to the athletic field. The Association's deed conveying the property to the Association provided for fee simple ownership. Also, it is obvious that the Association's members took pains when drafting its articles of incorporation to ensure that they would not be hindered if they decided to dissolve the corporation and sell its assets.
For the reasons stated above, the trial court's ruling that the Association is free to adopt a plan of distribution, dissolve, and distribute to its shareholders the proceeds from a sale of the athletic field was correct, and the judgment of that court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] In their brief the appellants set out 20 "Statements of Issues Presented for Review and Propositions of Law." However, the appellants do not point out how the majority of those issues and propositions relate to the facts of this case or how they demonstrate error by the trial court. Therefore, this Court will address only those issues that are directly related to the judgment from which the City and Beck appeal. | August 31, 1990 |
bd6e5ff6-2968-4ec3-91d8-8f0c73865cf5 | Horne Wrecker Service, Inc. v. City of Florence | 567 So. 2d 1285 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1285 (1990)
HORNE WRECKER SERVICE, INC.
v.
CITY OF FLORENCE, et al.
89-1215.
Supreme Court of Alabama.
August 31, 1990.
*1286 Robert W. Bunch of Bunch and Associates, Florence, for appellant.
Robert M. Hill, Jr., of Hill, Young & Boone, Florence, for appellee Greg Hodges d/b/a Greg's Wrecker Service.
William T. Musgrove, Jr., of Walker & Musgrove, Florence, for appellees City of Florence, Mayor Eddie Frost, Council President Steve Pierce, and Councilmen Dick Jordan, Welton Reynolds, Hall Self, Herman Graham and Ken Nix and Police Chief Richard P. Thompson.
SHORES, Justice.
The plaintiff, Horne Wrecker Service, Inc. ("Horne"), appeals from a judgment entered, after a trial ore tenus, in favor of the City of Florence and Greg's Wrecker Service. At trial, Horne alleged that the action of the City in awarding a wrecker service contract to Greg's Wrecker Service violated the Competitive Bid Law, Ala.Code 1975, § 41-16-50 et seq. Horne sought an injunction enjoining the City from conducting the city wrecker service under the contract entered into with Greg's Wrecker Service and a writ of mandamus or rule nisi ordering that the City void the contract with Greg's Wrecker Service and require prospective bidders for the wrecker contract to meet the bid specifications at the time the bids are offered. Horne also requested a judgment declaring the rights of the parties.
On May 28, 1987, the City of Florence issued an invitation to bid for the wrecker service contract for the removal and impounding of wrecked or abandoned vehicles from the city's streets. The invitation to bid stated that the bids would be received until 1:30 p.m., June 9, 1987, at which time they would be opened and read. Horne Wrecker Service had held the city wrecker service contract since 1982. Approximately one month before Horne's last contract with the city expired, Greg Hodges, the owner of Greg's Wrecker Service, contacted the city's police chief and, he alleges, was told there would be no changes in the specifications from the prior contract. He claims that the mayor confirmed that there would be no changes in the specifications. Hodges says he then obtained the last invitation to bid and obtained the equipment necessary to meet the specifications in that invitation. The May 1987 invitation to bid, however, did contain changes from the prior invitation to bid, including the requirement that a bidder have a 25-ton wrecker, an additional small wrecker, a six-vehicle garage, and a perimeter alarm system. The bids were opened on June 9, 1987, and Greg's Wrecker Service was the low bidder. Horne Wrecker Service was the only other bidder. Greg's Wrecker Service did not have the additional wreckers, the garage, or the alarm system at that time. Horne did not have the alarm system. The city council met on June 16, 1987, and set July 15, 1987, as the time for all parties to meet the bid specifications. On June 17, 1987, the City's police chief recommended to the City's purchasing agent that the wrecker service contract be awarded to Horne. Hodges claims that he substantially met all the specifications by July 15, 1987, except for the office, which lacked some painting, plaster, and partitions. On July 21, 1987, the City awarded the wrecker service contract to Hodges's company.
Horne claims that by extending the time for the bid specifications to be met the City violated § 41-16-50, part of the Competitive Bid Law, which required the City to award the wrecker contract to the lowest responsible bidder. Horne claims that his company was the lowest responsible bidder at the time the bids were submitted. Horne further claims that allowing a bidder additional time to meet the specifications results in manipulation, fraud, and abuse of the competitive bid process and claims that the public will not receive the goods and services it deserves if such a practice is allowed. In this case, neither party met the specifications when the bids were opened and both parties were given until July 15, 1987, to meet the specifications. This Court has held:
White v. McDonald Ford Tractor Co., 287 Ala. 77, 86, 248 So. 2d 121 (1971).
Because neither party met the specifications when the bids were opened, the city council's allowance of additional time for both parties to meet the specifications was not arbitrary or capricious or the result of improper influence. There was evidence that on July 15, 1987, the defendant was in substantial compliance with the specifications. Therefore, the trial court's denial of the requested relief is affirmed.
The defendant has filed a motion requesting damages under Rule 38, A.R. App.P. The defendant claims that the appeal was frivolous and requests damages in the amount of attorney fees incurred in defending the appeal. The motion is denied. Although we affirm the trial court's judgment, we cannot say that the appellant's argument is so meritless as to amount to a frivolous argument.
The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | August 31, 1990 |
69d7c5a5-8c54-40a0-9fa0-336d94f02352 | Ex Parte McKinney | 567 So. 2d 877 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 877 (1990)
Ex parte James Anthony McKINNEY.
(Re John Anthony McKinney v. State).[1]
89-1334.
Supreme Court of Alabama.
September 7, 1990.
Selma L.D. Smith, Mobile, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
PER CURIAM.
The petition for a writ of certiorari is hereby denied. In denying the writ, we do not mean to be understood to be agreeing with the reasoning employed by the Court of Criminal Appeals in affirming the trial court's entry of a mistrial in the first jury trial in this action. In its opinion, the Court of Criminal Appeals held that a declaration of a mistrial in the first trial was necessary because the jury could not reach a unanimous verdict, and, therefore, it held that the petitioner had not been placed in former jeopardy by the first trial. McKinney v. State, 567 So. 2d 870 (Ala.Crim.App. 1990). A careful review of the portion of the trial court record that appears in the Court of Criminal Appeals' opinion, however, reveals that the trial court declared a *878 mistrial in the first jury trial not because the jury was unable to reach a unanimous verdict, but because one of the jurors was not qualified to be a juror under Ala.Code 1975, § 12-16-60.
Section 12-16-60(a) states in pertinent part:
(Emphasis added.)
The trial court's reasoning in declaring a mistrial is evident from a reading of the following portion of the record as set out in the Court of Criminal Appeals' opinion:
Manifest necessity must be demonstrated before a mistrial is granted over the objection of the defendant. Ala.Code 1975, § 12-16-233; Woods v. State, 367 So. 2d 982 (Ala.1978). The facts adduced in the Court of Criminal Appeals' opinion demonstrate a manifest necessity to declare a mistrial. See McKinney v. State, supra.
Accordingly, the petition for a writ of certiorari is denied.
WRIT DENIED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] The defendant was named as John Anthony McKinney in the Court of Criminal Appeals. | September 7, 1990 |
16d1ba0b-4aff-4f57-9b19-f0f89c3b325f | Jenkins, Weber and Associates v. Hewitt | 565 So. 2d 616 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 616 (1990)
JENKINS, WEBER AND ASSOCIATES, et al.
v.
Harry HEWITT, et al.
89-406.
Supreme Court of Alabama.
July 27, 1990.
*617 Thomas W. Bowron II of Polson, Jones, Bowron & Robbins, Birmingham, for appellants.
H.E. Nix, Jr. and Alex L. Holtsford, Jr. of Nix & Holtsford, Montgomery, for appellees Robin Swift, Ben Barnes, Howard L. White, Ken Givens, Jamie Flowers, Larry Spann, Lee Miller and Wendell Humphries.
Sharon E. Ficquette and Lois Brasfield, Dept. of Human Resources, for appellees Andrew P. Hornsby, Jr. and Harry Hewitt.
W. Joseph McCorkle, Jr. of Balch & Bingham, Montgomery, for appellee Unisys Corp.
STEAGALL, Justice.
Plaintiffs appeal from a summary judgment in favor of defendants in an action brought pursuant to Ala.Code 1975, § 41-16-1 et seq., the Alabama Competitive Bid Law.
On December 24, 1986, the State of Alabama Department of Finance (hereinafter "Finance"), in conjunction with the State of Alabama Department of Human Resources (hereinafter "DHR"), issued a formal invitation to vendors to bid on the sale and installation of a computer processing system. The appellants, Kenneth Jenkins, Albert L. Weber, and Jenkins, Weber and Associates (hereinafter collectively referred to as "Jenkins, Weber"), bid on the invitation, as did the appellee Unisys Corporation and approximately six other vendors. Jenkins, Weber's bid was the second lowest and Unisys's was the fourth lowest. After a lengthy evaluation process, however, DHR and Finance determined that Unisys was the "lowest responsible bidder" and awarded the contract to Unisys.
Jenkins, Weber filed a complaint against Harry Hewitt, a DHR employee, and, by amendment, added as defendants Unisys and certain employees of Finance and DHR, specifically, Robin Swift, Andrew Hornsby, Ben Barnes, Howard L. White, Ken Givens, Jamie Flowers, Larry Spann, Lee Miller, and Windell Humphries, alleging noncompliance with Code § 41-16-1 et seq., and demanding monetary relief. Following protracted discovery, the trial court entered a summary judgment in favor of all of the defendants. Jenkins, Weber appeals from that judgment.
Section 41-16-31, the statute under which this action is brought, reads:
(Emphasis added.)
This Court held as follows in City of Montgomery v. Brendle Fire Equipment, Inc., 291 Ala. 216, 220, 279 So. 2d 480, 484 (1973), interpreting Ala.Code 1940, Title 55, § 515, the predecessor to § 41-16-31:
(Citations omitted, emphasis original.) City of Montgomery established the remedy pursuant to Title 55, § 515, as one for injunctive relief. Jenkins, Weber's complaint, as amended three times, did not seek injunctive relief pursuant to *618 § 41-16-31, but rather claimed monetary damages.[1]
We find nothing in the legislative history of § 41-16-31 nor in the cases interpreting that statute that allows an unsuccessful bidder to sue for monetary damages. In Urban Sanitation Corp. v. City of Pell City, 662 F. Supp. 1041, 1044 (N.D.Ala. 1986), a federal district court interpreting that statute stated:
(Citation omitted.)
Jenkins, Weber contends that the decision not to award it the contract was arbitrary and capricious, and it relies on White v. McDonald Ford Tractor Co., 287 Ala. 77, 248 So. 2d 121 (1971); International Telecommunications Systems v. State, 359 So. 2d 364 (Ala.1978); Arrington v. Associate General Contractors of America, 403 So. 2d 893 (Ala.1981), cert. denied, 455 U.S. 913, 102 S. Ct. 1265, 71 L. Ed. 2d 453 (1982); and Mobile Dodge, Inc. v. Mobile County, 442 So. 2d 56 (Ala.1983). However, those cases dealt with injunctive relief and do not control this case, because Jenkins, Weber sought monetary damages rather than injunctive relief.
We, therefore, conclude that the summary judgment in favor of the defendants was proper, because Jenkins, Weber failed to state a claim cognizable under Code § 41-16-31. In view of this holding, we do not address the claim by Jenkins, Weber that a summary judgment should not have been entered while discovery was pending.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
ALMON, J., concurs in the result.
[1] The original complaint claimed compensatory damages and lost profits; the first amendment added certain parties as defendants; the second amendment claimed lost profits; the third amendment requested that the contract entered into between the State of Alabama and Unisys be declared void and also requested "any other legal and/or equitable remedy deemed appropriate by this court." While the third amendment could possibly be interpreted to include injunctive relief, this amendment came approximately 18 months after Unisys had begun work on the project and, therefore, too late to obtain injunctive relief. | July 27, 1990 |
f223c1e8-aad3-4b24-8925-73ff8a627db7 | Lawyers Title Ins. Corp. v. Vella | 570 So. 2d 578 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 578 (1990)
LAWYERS TITLE INSURANCE CORPORATION
v.
John H. VELLA and Elizabeth Ann Vella.
ROBERTS BROTHERS, INC.
v.
John H. VELLA and Elizabeth Ann Vella.
John H. VELLA and Elizabeth Ann Vella
v.
LAWYERS TITLE INSURANCE CORPORATION and Realty Title Company.
REALTY TITLE COMPANY
v.
John H. VELLA and Elizabeth Ann Vella.
88-400, 88-401, 88-402 and 88-403.
Supreme Court of Alabama.
August 10, 1990.
Rehearing Denied November 16, 1990.
*579 Robert E. Clute, Jr. and Barry L. Thompson of Silver & Voit, Mobile, for appellant/cross-appellee Lawyers Title Ins. Corp.
A. Danner Frazer, Jr. and William H. Philpot, Jr. of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellant Roberts Bros., Inc.
Vincent F. Kilborn, Mobile, for appellant/cross-appellees John H. & Elizabeth Ann Vella.
Irvin J. Langford of Howell, Johnston, Langford & Watters, Mobile, for appellant/cross-appellee Realty Title Co.
John E. Pilcher of Pilcher & Pilcher, Selma, for amicus curiae First American Title Ins. Co. in support of application for rehearing.
Jesse P. Evans, III and Walter F. McArdle of Najjar, Denaburg, Meyerson, Zarzaur, Max, Wright & Schwartz, Birmingham, for amicus curiae Ticor Title Ins. Co. in support of application for rehearing.
*580 KENNEDY, Justice.
The defendantsRoberts Brothers, Inc. ("Roberts"), Realty Title Company ("Realty"), and Lawyers Title Insurance Corporation ("Lawyers")appeal from a judgment entered on a jury verdict in favor of the plaintiffs, John H. Vella and Elizabeth Ann Vella. The jury awarded the Vellas compensatory damages in the amount of $100,000 against all defendants and assessed punitive damages in the amount of $275,000 against Realty and Lawyers on a claim of reckless misrepresentation. The trial court granted Realty and Lawyers' motion for judgment notwithstanding the verdict on the claim for punitive damages, based on its determination that the evidence did not support an award of punitive damages. The plaintiffs appeal from the order disallowing the award of punitive damages. We affirm in part, reverse in part, and remand.
The issues are (1) whether the evidence supported the jury's finding that Roberts made a mistaken misrepresentation and whether Roberts was negligent in failing to discover and notify the plaintiffs that the Internal Revenue Service ("I.R.S.") held a statutory right of redemption on the house that the plaintiffs purchased through the real estate agency operated by Roberts; (2) whether the plaintiffs are entitled to recover compensatory damages for mental anguish; (3) whether the evidence supported the jury's finding that Realty and Lawyers made fraudulent reckless misrepresentations and also breached their duty to disclose a known title defect to the plaintiffs; and (4) whether the evidence supported an award of punitive damages against Realty and Lawyers.
The evidence at trial was as follows: In 1983, Richard and Shirley Magill purchased a house at 6009 Cumberland Road in Mobile, Alabama, and executed a second mortgage to the sellers, Archie E. Lewis and David K. Farr. The Magills came upon serious financial hardships, and among their problems was an I.R.S. federal tax lien in the amount of $77,684.44. The lien was recorded in the Mobile County recording office on March 9, 1984. As a result of their financial woes, the Magills listed their house for sale with the Roberts real estate agency. Ann Akridge of Roberts was the Magills' sales representative. She maintained a "property" file on the property and a "personal" file on the Magills. Those files indicated that she had actual knowledge of the I.R.S. tax lien. In fact, she had discussed the tax lien problem with William Revere at the I.R.S. office and had also discussed it with the Magills. Revere informed her about the process of discharging the lien so that the property could be sold free and clear of the lien. Revere told her that the lien attached to "any and everything" that the Magills owned.
The Magills defaulted on the mortgage held by Lewis and Farr, and foreclosure proceedings were instituted by Lewis and Farr's attorney, Robert P. Denniston. The I.R.S. was timely notified of the foreclosure action. Christine Robinson, a sales agent with another real estate agency, presented to Akridge an offer to purchase the Magill property. Robinson testified that she presented the offer a few days before the foreclosure and that Akridge did not tell her about the tax lien.
On July 2, 1984, Lewis and Farr purchased the Magill property at the foreclosure sale. By operation of law, the I.R.S. tax lien was extinguished by the foreclosure, and a one-year statutory right of redemption in favor of the I.R.S. was created. The Magills also had a one-year right of redemption. The I.R.S. right of redemption is the basis of this lawsuit.
Akridge testified that it was her understanding that any liens on the property were extinguished by the foreclosure and that she did not know that the foreclosure of the tax lien gave rise to the I.R.S.'s right of redemption.
After the foreclosure sale, Lewis and Farr listed the property for sale through the Roberts agency. Akridge testified that Lewis and Farr were her clients. Akridge was a Roberts broker/branch manager and supervised 40 sales agents.
Also in 1983, the Vellas hired Steve Sparks, a sales agent with the Roberts agency, who was under Akridge's supervision, *581 to help them sell their house and find a new one. Sparks showed them the house at 6009 Cumberland Road, formerly owned by the Magills. In January 1984, the Vellas were informed by Sparks and Akridge that the Magills had a right of redemption on the property and that the redemption period expired on July 2, 1985. It is undisputed that the Vellas knew about the Magills' right of redemption. The Vellas agreed to pay $147,000 for the house, and signed a contract on January 28, 1984, which contained this sentence: "Buyer is aware of the right of redemption." It is also undisputed that no one from Roberts told the Vellas about the I.R.S. right of redemption. The Vellas testified that Akridge told them that the Magills were in serious financial trouble and that the Magills would not be able to redeem the property before June 2, 1985. The Vellas expressed concern about the Magills' right of redemption, but they were assured by Sparks and Akridge that it was a "perfectly safe transaction."
In March 1985, the Roberts agency contacted Realty and requested a title examination on the Cumberland Road property. Rebecca Jones was the title examiner. Her worksheet from the title examination indicated that she had found the I.R.S. tax lien on record and had enclosed a copy of the tax lien in the file. Jones also found on record the auctioneer's deed to Lewis and Farr from the foreclosure sale. A copy of the deed contained a handwritten notation "OK as per ABW" (ABW are the initials of Realty's chief executive officer, Alan B. Weissinger) and the words "Internal Revenue Service" were underlined where they appeared on the front page of the deed. Thereafter, a title commitment was issued by Lawyers through Realty. The title commitment contained the following statement, known as "exception 11":
The Vellas were told by Sparks that the only "black mark" on the property that showed up on the title commitment was the Magills' right of redemption.
On April 5, 1985, the Vellas met at Realty's offices with Sara Roberts, Realty's escrow officer/closing agent, and Sparks to close the sales transaction. Neither Akridge nor Lewis and Farr attended the closing. Sara Roberts had in her possession the title examiner's file, which contained the copy of the I.R.S. tax lien. John Vella testified that Sara Roberts read the title commitment's exceptions to him, including "exception 11." He testified that she asked him, "Do you know what the right of redemptions [sic] are?" He replied that Sparks had told him that the Magills had the right to redeem but that because of their poor financial condition they would be unable to redeem. He testified that Sara Roberts then said to him, "I just wanted you to be aware of the right of redemption." The Vellas testified that Realty did not tell them about the I.R.S.'s right of redemption; that Sara Roberts did not show them the copy of the I.R.S. tax lien; and that the term "I.R.S." never came up. Sara Roberts testified that she had not read the exceptions to the Vellas and that she had asked the Vellas if they "were aware the rights of redemption were still outstanding." However, she admitted on cross-examination that she did not remember the Vellas' response to her inquiry; but nevertheless, it was her testimony that the Vellas "were aware the rights of redemption were outstanding."
The Vellas further testified that they relied on the representations made by Roberts, Realty, and Lawyers that indicated to them that only the Magills had the right to redeem and that if they had known about the I.R.S.'s right of redemption they "would not have touched it with a ten-foot pole." In other words, the Vellas said they would not have purchased the Cumberland Road property on April 5, 1985, if they had known of the I.R.S.'s right of redemption.
*582 Five weeks after the Vellas had moved into their house on Cumberland Road, they received a letter dated May 10, 1985, from William Revere of the I.R.S. The letter stated that the I.R.S. was considering redemption of their property pursuant to § 7425(d) of the Internal Revenue Code. The next day, John Vella called Sparks and told him about the I.R.S. letter. Sparks told him that he would try to find out what was going on. John Vella testified that Sparks told him that the I.R.S. was just "bluffing" and that that was the way the I.R.S. "harassed" private citizens. He also testified that he tried to contact the president of Realty, George Williams, on three or four occasions but that Williams failed to return any of his telephone calls. He also testified that he talked to Revere at the I.R.S. and that Revere told him he was not bluffing. In fact, the Vellas home was advertised in a Mobile daily newspaper. Revere told the Vellas that he had six bids on the house and that several people wanted to see the inside of their house. John Vella testified that the receipt of the I.R.S. letter caused them much distress; that "it was like a nightmare"; that he was "strung out"; that he "couldn't sleep"; that he "was in a position of the house being taken away" from him; and that he "didn't know what to do."
Ethel Carter, Roberts's executive vice president of residential sales, testified that she discussed the I.R.S.'s right of redemption with Williams and Weissinger of Realty after John Vella had informed Roberts about the problem. She testified that Williams informed her that Realty used "exception 11" as a "catchall" exception and that Realty had a policy of not itemizing all encumbrances. She also testified that Roberts relied absolutely on the title companies to research a title. Carter later wrote the Vellas a letter telling them to seek legal advice and to comply with the I.R.S. time requirement, and in June 1985 the Vellas paid $12,500 to the I.R.S. in satisfaction of the value of the I.R.S. right of redemption.
Williams, president and a principal owner of Realty, testified that his company has used the language in "exception 11" for 20 to 30 years. However, there was evidence that Lawyers had provided Realty with a "policy writing and exception manual" that warned against using such an exception provision in writing commitments. This manual was available for Realty's use at the time the Vellas' title commitment was written. The manual stated in part:
However, Realty instructed its title examiners not to use the manual's language. Williams testified that putting in the language recommended by the manual "would only clutter the commitment." In addition to the manual's recommendation, a Realty representative received some literature from Lawyers at a seminar that recommended that the following language be used in writing exceptions:
This provision is similar to "exception 11," except that the words "All rights" do not appear in "exception 11."
Williams also testified that Realty had knowledge of the I.R.S. right of redemption. He testified as follows:
Williams also testified as follows:
Williams further testified that the copy of the tax lien in Realty's file at the closing *584 "was a piece of paper which was not germane to anyone's rights" at the time of closing and that "it had nothing to do with the title, so why show it to [the Vellas]?"
Williams maintained that the I.R.S.'s right of redemption was excepted by the language of "exception 11" in the title binder and the title policy. Furthermore, Williams testified that he did not know that John Vella had tried to call him three or four times and that he had not avoided talking to the Vellas.
In July 1985, the Vellas sued Roberts, Realty, Lawyers, Lewis, and Farr. The Vellas alleged, inter alia, willful, reckless, and mistaken misrepresentation against Roberts, Realty, and Lawyers; suppression of a material fact against Realty and Lawyers; and negligence against Roberts.
The trial court entered a directed verdict in favor of Lewis and Farr, and they are not involved in this appeal.
The case was submitted to the jury on the claims of (1) innocent or mistaken misrepresentation and reckless misrepresentation against Roberts, Realty, and Lawyers; (2) negligence against Roberts; and (3) a breach of the duty to disclose against Realty and Lawyers. The jury was charged that it could award only compensatory damages for monetary loss and mental anguish and that punitive damages were allowable if it found in favor of the plaintiffs on the claim of reckless misrepresentation.
The jury returned a special verdict in favor of the Vellas on (1) the claim of mistaken misrepresentation against Roberts; (2) the claim of negligence against Roberts; (3) the claim of reckless misrepresentation against Realty and Lawyers; and (4) the claim of breach of duty to disclose against Realty and Lawyers. The jury awarded the Vellas compensatory damages in the amount of $100,000 and punitive damages in the amount of $275,000.
The trial court granted the motions of Realty and Lawyers for judgment notwithstanding the verdict on the claim for punitive damages. In compliance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), the trial court found that the award of compensatory damages, although high, was not excessive as a matter of law and that the verdict was not based upon "bias, passion, corruption, or other improper motive." However, with respect to the punitive damages, the trial court stated that "there is no evidence in the record which would support a finding that the title companies intended to deceive plaintiffs or that the misrepresentation was made so recklessly as to amount to intent. Nor was the fraud malicious, oppressive or gross." The defendants and the plaintiffs appealed.
Roberts argues, inter alia, that it made no misrepresentation to the Vellas, because, it contends, it did not know that the I.R.S. had a right of redemption on the property. It further argues that its prior knowledge of the I.R.S. tax lien against the Magills did not charge it with knowledge of the I.R.S.'s right of redemption. Citing Speigner v. Howard, 502 So. 2d 367, 371-74 (Ala.1987), Roberts also argues that as a listing real estate agent, it did not owe a duty of care to the Vellas to discover and report title defects.
We agree that Roberts did not owe a duty to perform a title search on the Cumberland Road property. However, there was enough evidence to establish an agency relationship, so that Roberts owed a fiduciary duty to the Vellas to disclose any material facts of which it had actual knowledge. Davis v. Brown, 513 So. 2d 1001 (Ala.1987), citing Cashion v. Ahmadi, 345 So. 2d 268 (Ala.1977). The fact that there was an I.R.S. tax lien on property which was subsequently foreclosedgiving rise to the I.R.S.'s right of redemption was a material fact that Roberts had a duty to communicate to the Vellas. Akridge had actual knowledge that there was an I.R.S. tax lien on the property; her excuse for not telling the Vellas was that she did not know that the foreclosure of the tax lien created a right of redemption in the I.R.S. Roberts had actual and superior knowledge of facts that should have incited it to further inquiry regarding the status and consequences of the tax lien. *585 Akridge had learned it was a problem when she had previously called the I.R.S. office. Roberts made misstatements of fact through Sparks and Akridge. The Vellas were told that the Magills' right of redemption was the only "black mark" on the property. There was evidence from which the jury could have found that the Vellas' reliance on Roberts's misrepresentation was not unreasonable. Padgett v. Hughes, 535 So. 2d 140 (Ala.1988). Furthermore, the Vellas were under no duty to examine the title to the property to ascertain the true state of the title. Dickinson v. Moore, 468 So. 2d 136 (Ala.1985); Shahan v. Brown, 167 Ala. 534, 52 So. 737 (1910). We, therefore, conclude that the evidence supported the jury's findings that Roberts was negligent and had also made a mistaken misrepresentation upon which the Vellas reasonably relied to their detriment. We affirm that portion of the judgment.
The defendants argue that the Vellas were not entitled to recover compensatory damages on the claim of mental anguish. We disagree. This Court has not required mental anguish to be corroborated by the presence of physical symptoms and has upheld the award of compensatory damages on the claim of mental anguish in similar cases that involved an impingement on the peace, well being, and solitude of the plaintiff's home. See Orkin Exterminating Co. v. Donavan, 519 So. 2d 1330 (Ala.1988); B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979); F. Becker Asphaltum Roofing Co. v. Murphy, 224 Ala. 655, 141 So. 630 (1932). Pursuant to Hammond v. City of Gadsden, supra, the trial court determined that the award of compensatory damages was not excessive and that the verdict was not based on improper motive. We find no error in that portion of the judgment regarding the award of compensatory damages, and we affirm the judgment for compensatory damages.
Realty and Lawyers argue, inter alia, that the Vellas could not have relied on the alleged misrepresentations because the contract obligated them to purchase the property. They also argue that there was "no duty to notify the Vellas that the I.R.S. had in fact an outstanding right of redemption," citing Holmes v. Alabama Title Co., 507 So. 2d 922 (Ala.1987), and Williams v. Bank of Tallassee, 456 So. 2d 50, 52 (Ala. 1984). They further argue that Sara Roberts did not make any misrepresentations of material fact to the Vellas at the closing, and that she was prohibited from giving "legal advice" to the Vellas concerning the statutory rights of redemption. Realty and Lawyers maintain that the language of "exception 11" effectively included the I.R. S.'s right of redemption.
We conclude that the defendants' first argument is without merit, because the sales contract allowed the Vellas the option to refuse to close if the title was not marketable.
At the outset, we note that in a fraud action, a duty to speak may exist in the absence of a contractual relationship or without dealings between the parties. "Whether a duty to speak arises depends upon the relationship of the parties, the value of the particular facts, the relative knowledge of the parties, and other circumstances.... The determination of the existence of duty in this context is a question for the jury...." Hopkins v. Lawyers Title Ins. Corp., 514 So. 2d 786, 790 (Ala. 1986) (citations omitted). The purpose of title insurance is "to protect the insured against defects in the title." Holmes, supra, at 925. In this case, the relationship between Realty, Lawyers, and the Vellas is sufficient to impose a duty on Realty and Lawyers to disclose all title defects of which they had knowledge. The I.R.S.'s right of redemption is a title defect. Williams testified that Realty had actual knowledge of the I.R.S.'s right of redemption. However, Realty argues that the I.R.S.'s right of redemption was included in "exception 11." The determination of the meaning of "exception 11" was for the trier of fact, and the evidence supported a finding that the I.R.S.'s right of redemption was not within the exceptions included *586 in "exception 11" and that, in the title commitment to the Vellas, Realty and Lawyers had breached the duty to disclose the I.R.S.'s right of redemption.
Furthermore, the Vellas testified that Sara Roberts confirmed their interpretation of the meaning of "exception 11" that only the Magills had the right of redemptionand that she did not show them the copy of the tax lien that was in her file. This evidence supported the jury's findings that Realty and Lawyers misrepresented the facts to the Vellas and also breached their duty to disclose. We affirm that portion of the judgment.
Finally, Williams testified that he deliberately disregarded the recommended language in the manual provided to his company by Lawyers for writing exceptions. He testified that his title examiners were instructed not to use the language in the manual and that he thought the manual's recommended exception would "only clutter the commitment." The jury found that "exception 11" in the title commitment and policy did not inform the Vellas that the I.R.S. had an outstanding right of redemption. Moreover, Williams testified that Realty and Lawyers had actual knowledge of the I.R.S.'s right of redemption. This evidence, in light of the fact that Realty disregarded the warning and recommendation of the manual that the I.R.S.'s right of redemption be clearly excepted, supported the jury's finding that Realty and Lawyers recklessly misrepresented the facts to the Vellas.
Punitive damages may be awarded on proof of reckless misrepresentation. "`[I]t is the finding of intent to deceive, which must be based upon the initial finding of knowledge of the falsity of the material misrepresentation, that triggers the discretionary power of the factfinder to award punitive damages.'" Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98, 103 (Ala.1988) (citation omitted). In the case of an intentional deception, punitive damages may be awarded without regard to "grossness, oppressiveness, or maliciousness." Id. An intent to deceive may be found from a reckless misrepresentation. Punitive damages may be awarded where there is a misrepresentation that is made so recklessly and heedlessly as to amount to the same thing as knowledge of its falsity. Id.; American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala.1985); Ex parte Lewis, 416 So. 2d 410 (Ala.1982). Code 1975, § 6-5-103, provides:
We conclude, therefore, that the evidence supported the jury's finding that Realty and Lawyers made a reckless misrepresentation and that they intended to deceive the Vellas. The jury was permitted to award punitive damages against Realty and Lawyers on the claim of reckless misrepresentation. Accordingly, we reverse the judgment of the trial court as to the holding that punitive damages were not recoverable, and we remand this cause to the trial court for further proceedings pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), for a determination of whether the award of punitive damages was excessive.
Therefore, the judgment is affirmed in part and reversed in part, and the cause is remanded.
88-400 AFFIRMED.
88-401 AFFIRMED.
88-402 REVERSED AND REMANDED.
88-403 AFFIRMED.
HORNSBY, C.J., and JONES, ALMON, ADAMS and STEAGALL, JJ., concur.
*587 HOUSTON, J., concurs in part and dissents in part.
HOUSTON, Justice (concurring in part and dissenting in part).
When can punitive damages be awarded in fraud actions? The lawyers for Lawyers Title Insurance Company correctly note:
There is perhaps too much charity in these fine lawyers' further observation:
(Emphasis supplied.)
I appreciate the problem that the bench and bar has with this Court's struggle to apply these simple rules of law to the various sets of facts presented to us. I would accept the challenge and attempt to articulate meaningful standardsthe absence of which has caused less charitable lawyers to refer to our opinions in this area as "burnt toast justice" (based on what the Justices had for breakfast) or, even worse, "sausage factory justice" (it does not matter what junk goes into the opinion as long as the end result is to the Justice's liking). However, my view of these facts does not allow me to reach this issue.
I find no duty to disclose on the part of Lawyers Title or Realty Title. Alfa Mutual Insurance Co. v. Northington, 561 So. 2d 1041 (Ala.1990); Colonial Bank of Alabama v. Ridley & Schweigert, 551 So. 2d 390 (Ala.1989) ("[d]uty is an essential element of fraud").
The agent for Lawyers Title and Realty Title asked the plaintiffs at the closing if they were aware of the rights of redemption. In response to this, plaintiff John H. Vella III "told her what [defendant] Roberts Brothers had told us about the fact that Richard and Shirley Magill [former owners of the property] had the right to redeem the property but that she [the agent of Lawyers Title and Realty Title] didn't have to worry about it because [the Vellas] had been assured that there was no way [the Magills] could or would want to redeem the property before July 2nd." In response to this, the agent for Lawyers Title said, "I just wanted to make sure you knew what rights of redemption meant."
Holmes v. Alabama Title Co., 507 So. 2d 922, 925 (Ala.1987). They are forbidden from giving legal advice. Coffee County Abstract & Title Co. v. State ex rel. Norwood, 445 So. 2d 852, 857 (Ala.1983). However, if the United States Internal Revenue Service had a right to redeem, then internal procedures required that the following exception be placed in the title commitment: "Z-95 Right of the United States to redeem the insured premises from foreclosure sale *588 conducted on [date], as provided by the Federal Tax Lien Act of 1966 (26 U.S.C. 7425)."
This was not done. As a consequence of this failure to comply with company procedure, the Vellas could possibly have recovered against Lawyers Title under the title insurance policy, for any loss that they sustained as a result of the I.R.S.'s redeeming the property insured, for this had not been "excepted" from coverage in accordance with company directives.
Likewise, Lawyers Title required that exclusions in title commitments and policies exclude "[a]ll rights outstanding by reason of the statutory right of redemption" instead of "[r]ights of redemption from foreclosure of mortgage," the phrase used in the Vellas' commitment and title policy. This may have afforded the Vellas a right of action under the policy for any loss that they sustained as a result of the I.R.S.'s redeeming the property insured under the title insurance policy.
But does this impose upon Lawyers Title or Realty Title a duty to disclose that will support a cause of action for fraud? I think not. Holmes v. Alabama Title Co., supra. Therefore, I would affirm the trial court's judgment.
I do not think that the trial court erred in submitting the negligence or misrepresentation claims against Roberts Brothers to the jury.
In fraud cases, the trier of fact should be apprised, as follows:
Henderson v. Gilliland, 187 Ala. 268, 272, 65 So. 793, 794-95 (1914) (quoting Allen v. Riddle, 141 Ala. 621, 37 So. 680 (1904)).
My review of the facts in this case persuades me that there was at least a "scintilla of evidence" (the applicable standard in this case) of each element of mistaken misrepresentation against Roberts Brothers for this issue to be submitted to a jury and that the jury's verdict was not plainly and palpably wrong.
KENNEDY, Justice.
Lawyers and Realty, as well as several amici curiae title companies, complain that the decision in this case is contrary to prior law. They complain that our opinion places a duty on title companies to disclose as to all possible redemptioners, creates new fiduciary duties for title companies, and requires title companies to engage in the unauthorized practice of law.
We disagree. Present at the closing with the Vellas were Sparks and Sarah Roberts, Realty's closing agent for the transaction. Roberts had the title examiner's file in front of her; that file contained the IRS tax lien. Roberts opened the file, took out the commitment for title insurance, and read to the Vellas the list of exceptions. After reading exception 11, which is quoted in our original opinion, Roberts asked the Vellas, "Are you aware of the rights of redemption?" John Vella answered by telling her what Roberts Brothers had told him: that Richard and Shirley Magill had rights to redeem the property, but that the Vellas had nothing to worry about because the Magills could not and would not redeem the property. Although Roberts Brothers' description of the rights of redemption was only half-accurate, Sarah Roberts confirmed the Vellas' understanding that only the Magills had rights of redemption by answering, "I just wanted to make sure you knew what rights of redemption meant."
A consideration of these facts reveals the answer to the title companies' complaints. Realty and Lawyers had actual knowledge of the IRS tax lien. They had actual knowledge not only that the Vellas did not know of the IRS tax lien or right of redemption but also that the Vellas believed that the only rights of redemption on the home were the Magills' rights of redemption. The title companies nevertheless affirmatively represented to the Vellas that *589 the language of exception 11 meant that only the Magills had a right of redemption.
Those facts sufficiently support the Vellas' claim of reckless misrepresentation and the award of punitive damages. The opinion does not create a new duty to disclose regarding all possible redemptioners, nor does it create new fiduciary duties for title companies. As the opinion states, the title companies were bound by the duty described in Hopkins v. Lawyers Title Ins. Corp., 514 So. 2d 786 (Ala.1986).
Contrary to the complaints of the title companies, the opinion does not require title companies to engage in the unauthorized practice of law. The tax lien was in the file. For the title companies to disclose the fact of the existence of the lien would have in no way required giving an opinion or legal advice, Holmes v. Alabama Title Co., 507 So. 2d 922 (Ala. 1987).
HORNSBY, C.J., and JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur. | August 10, 1990 |
358254c7-425c-4826-bb7b-258617a0f5f0 | Ex Parte Lynch | 587 So. 2d 303 | N/A | Alabama | Alabama Supreme Court | 587 So. 2d 303 (1990)
Ex parte Robert LYNCH.
(Re Robert Lynch v. State).
89-452.
Supreme Court of Alabama.
August 17, 1990.
John Bertolotti, Jr., Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
The defendant, Robert Lynch, was convicted of second degree robbery and was sentenced to 10 years' imprisonment. Upon appeal, the Court of Criminal Appeals affirmed his conviction without writing an opinion. 555 So. 2d 1203. Defendant then petitioned this Court to review the judgment of the Court of Criminal Appeals, and this Court granted his petition, primarily to review one question: Can a defendant be convicted of second degree robbery if his co-defendant is not "actually present"?
In order to answer that question, we must determine what the term "actually present," in Ala.Code 1975, § 13A-8-42,[1] means.
The Court of Criminal Appeals, after it affirmed this petitioner's conviction, considered the conviction of his co-defendant, Arthur James Fantroy; it reversed Fantroy's conviction, discussing the identical *304 issue presented in this case. Fantroy v. State, 560 So. 2d 1143 (Ala.Crim.App.1989).
The Court of Criminal Appeals wrote in Fantroy:
The State of Alabama asked this Court to review the decision in Fantroy, and in this case, the State argues essentially the same thing it argued in Fantroy, that "[f]rom a total reading of the statute (§ 13A-8-42) and commentary, it is apparent that the legislature intended that a person be guilty of second degree robbery if he is actually assisted by another person, whether standing right by the side of the principal robber or waiting to assist him in the get-away car." In essence, the State argues that accomplice liability, as defined in § 13A-2-23,[2] should be read into the provisions of § 13A-8-42. In Fantroy, the Court of Criminal Appeals rejected this argument, and this Court, without opinion, denied the State's petition for certiorari review.
We hold that the Court of Criminal Appeals in Fantroy correctly interpreted § 13A-8-42 and that it incorrectly affirmed the petitioner's conviction in this case. We, therefore, reverse the judgment of the Court of Criminal Appeals and remand the cause to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1] Ala.Code 1975, § 13A-8-42, provides:
"(a) A person commits the crime of robbery in the second degree if he violates section 13A-8-43 and he is aided by another person actually present.
"(b) Robbery in the second degree is a Class B felony." (Emphasis added.)
The commentary to § 13A-8-42 states:
"Robbery in the second degree, § 13A-8-42, requires that at least two robbers be present. Some modern codes recognized the increased likelihood of injury in robberies aided by an accomplice actually present, e.g., Michigan Revised Criminal Code, § 3306; New York Penal Law, § 160.10; Proposed New Federal Criminal Code, § 1721. Mere presence of a second individual, however, does not raise a simple theft case to robbery. There also must be a presence of force or threat of force. Thus, a `strong-arm' robbery committed by two or more persons would constitute robbery in the second degree, but a shoplifting committed by one person with a `look-out' accomplice would not meet the requirements of the section. Basically, § 13A-8-42 merely raises the punishment limitations for the offense of robbery in the third degree if committed by two or more persons. Some jurisdictions make no distinction based on the number of defendants. See Proposed Revision Texas Penal Code, §§ 29.02, 29.03; New Jersey Penal Code, § 2C:19-1."
[2] The accomplice liability statute provides:
"A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense:
"(1) He procures, induces or causes such other person to commit the offense; or
"(2) He aids or abets such other person in committing the offense; or
"(3) Having a legal duty to prevent the commission of the offense, he fails to make an effort he is legally required to make." | August 17, 1990 |
c74b14aa-0857-48d0-9a25-03763c768631 | Ex Parte Helton | 578 So. 2d 1379 | N/A | Alabama | Alabama Supreme Court | 578 So. 2d 1379 (1990)
Ex parte Thomas Dean HELTON.
(Re Thomas Dean Helton v. State).
89-866.
Supreme Court of Alabama.
August 10, 1990.
Rehearing Denied December 7, 1990.
Thomas B. Prickett II, Oneonta, for petitioner.
Don Siegelman, Atty. Gen., and Andrew J. Segal, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Thomas Dean Helton was convicted of murder and was sentenced to 10 years in the state penitentiary. His sentence was suspended and he was given five years of probation.
Subsequently, on February 23, 1989, the State filed a motion to revoke Helton's probation for alleged violations of the terms of his probation. Following a hearing on the motion, the trial court revoked Helton's probation. The Court of Criminal Appeals affirmed that action, with an opinion, 578 So. 2d 1377, and this Court granted certiorari review. We now reverse and remand.
The issues are whether the trial court's order revoking Helton's probation complied with the requirements of Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975), and whether it was error for the trial court to consider a DUI conviction where there was allegedly no showing that Helton was represented by counsel or that he had waived the right to counsel.
The trial court's order revoking probation read as follows:
In Armstrong, this Court held that when revoking probation, the trial judge must enter a written statement detailing the evidence relied upon and setting out the reasons for such revocation. Here, the order does not indicate what evidence the judge based his decision upon or otherwise provide the reasons for the revocation; therefore, the trial judge erred.
The second issue raised by Helton, relating to the DUI conviction, was not properly raised at trial and thus, was not preserved for review. Salter v. State, 470 So. 2d 1360, 1362 (Ala.Cr.App.1975).
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, J., dissents.
MADDOX, Justice (dissenting).
The Court of Criminal Appeals held that Helton had failed to preserve error in the trial court and, therefore, that his claim of error was procedurally barred. I think the Court of Criminal Appeals was absolutely correct. Helton concedes that he raised no objection in the trial court, but excuses his failure to object in the trial court, as follows:
Helton, in my opinion, apparently refers to the provisions of Rule 16.2(d), of the Temporary Rules of Criminal Procedure (Rule 15.2(d), Alabama Rules of Criminal Procedure, effective January 1, 1991), which states that "lack of subject matter jurisdiction or the failure of the charge to state an offense may be raised by the court or by motion of the defendant at any time during the pendency of the proceeding." But as I view it, even if that subsection applies, Helton made no objection during the pendency of the proceeding. In any event, the failure of the trial judge to comply with the requirements of Armstrong v. State, 294 Ala. 100, 312 So. 2d 620 (1975), does not, in my judgment, oust the trial court of jurisdiction in a probation revocation matter. As a matter of fact, in Armstrong there was a specific objection made, in the revocation proceeding in the trial court, and the error was preserved for appeal. Here, that is not the case.
Helton argues that "a defendant cannot be required to object to the inadequacy of a written order prior to its being written." He is right, of course, but the Rules of Criminal Procedure do not require that. The Rules do require that a post-trial motion be filed. Temporary Rule 13, "Post-Trial Motions," specifically provides that Helton could have raised any objection he had regarding the sufficiency of the order after the order was entered.[1] Of course, a motion filed under the provisions of Temporary Rule 13 would be untimely if not filed within 30 days.
The law of appellate review of questions not decided by trial courts seems clear:
Bevill v. Owen, 364 So. 2d 1201, 1203 (Ala. 1979).
Because I am of the opinion that the failure of the trial court to comply with Armstrong should have been raised by Helton in a motion filed pursuant to the provisions of Temporary Rule 13, I am of the opinion that the Court of Criminal Appeals correctly held that any error in that regard had not been preserved; consequently, I must respectfully dissent from that portion of the majority opinion which holds otherwise.
[1] Temporary Rule 13(a)(2) provides: "A motion for new trial must be filed no later than thirty (30) days after sentence is pronounced." | August 10, 1990 |
95976521-de2d-4f57-b473-4fa4ee1386d3 | Pool v. State | 570 So. 2d 1263 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 1263 (1990)
Ex parte State of Alabama.
Re Randolph Eugene POOL[1]
v.
STATE.
No. 89-865.
Supreme Court of Alabama.
August 17, 1990.
Rehearing Denied November 2, 1990.
*1264 Don Siegelman, Atty. Gen., and Joseph G.L. Marston, Asst. Atty. Gen., for petitioner.
Michael D. Cook, Lanett, for respondent.
MADDOX, Justice.
Randolph Eugene Pool was convicted of the unlawful possession of a controlled substance, namely marihuana. The Court of Criminal Appeals reversed his conviction upon the holding that the indictment failed to properly charge him with an offense.[2] We affirm.
The facts of this case are set out in detail in the opinion of the Court of Criminal Appeals and do not need to be repeated here. That court held that charging Pool with a violation of Ala.Code 1975, § 13A-12-212 (unlawful possession of a controlled substance), was improper because §§ 13A-12-213 and -214 are more specific statutes dealing exclusively with marijuana and that Pool should have been indicted under one of those statutes.
After going through a detailed analysis of these three statutes and applying general rules of statutory construction, the Court of Criminal Appeals reasoned that if "possession of marijuana were to be included within § 13A-12-212, then §§ 13A-12-213 and -214 would serve no purpose." Pool v. State, 570 So. 2d 1260, 1262 (Ala.Cr. App.1990). The State argues that the proper construction of these three statutes would be to allow the State to choose among the three the one under which it intended to prosecute. The State argues that it can choose to prosecute a person found with a small amount of marihuana (such as Pool) for either a misdemeanor (possession for personal use) or a felony (possession of a controlled substance), even though § 13A-12-213 defines felony possession of marihuana (possession of marihuana for other than personal use or for personal use after a previous conviction for unlawful possession for personal use).
Section 13A-1-6 sets forth the general rule of construction that the courts of this state are to use in interpreting penal laws. "All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of law, including the purposes stated in section 13A-1-3." One of the purposes stated in § 13A-1-3 is "(4) To differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties for each."
After reviewing the analysis of these statutes by the Court of Criminal Appeals, using the rule of construction set forth in § 13A-1-6, we conclude that the Court of Criminal Appeals properly construed these statutes. Interpreting them the way the State urges would mean that *1265 § 13A-12-214, unlawful possession of marihuana in the second degree (a Class A misdemeanor), could always be elevated into a felony offense because the State could choose to prosecute the same conduct under § 13A-12-212. The language of § 13A-12-214 makes it clear that the legislature intended to make possession of marihuana for personal use a misdemeanor and not a misdemeanor or a felony at the State's discretion. If we have misperceived the legislative intent, the legislature can amend the statutes to make them clearer.
For the above stated reasons, the judgment of the Court of Criminal Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The defendant's last name has been spelled in the various documents in the record as "Poole" and as "Pool." There is no issue as to the defendant's identity. Because he was indicted under the name "Pool" and because that is the name used in the opinion of the Court of Criminal Appeals, we will also refer to the defendant as "Pool."
[2] The State argues that the Court of Criminal Appeals erred in reaching the issue of whether the indictment properly charged Pool because, it argues, Pool did not object to the indictment except in a tardy motion and the trial judge never saw or ruled upon that motion. The record shows otherwise. Petitioner's motion was brought to the trial judge's attention at a motion hearing prior to opening arguments; the State never made any objection based on a contention that this motion was "late"; the trial judge and both attorneys discussed this motion and the issues it raised, and their discussion took up 17 pages of the transcript. Thereafter, the trial judge clearly ruled that he was going to allow the State to proceed under § 13A-12-212. The State's argument on this point is not well taken. | August 17, 1990 |
59ee2e15-3cb1-4fe0-8728-a89af662a6c5 | Alabama Power Co. v. Williams | 570 So. 2d 589 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 589 (1990)
ALABAMA POWER COMPANY
v.
Donald Thomas WILLIAMS.
88-1366.
Supreme Court of Alabama.
August 31, 1990.
Rehearing Denied November 16, 1990.
*590 S. Allen Baker, Jr., James A. Bradford, and Jonathan S. Harbuck of Balch & Bingham, Birmingham, William M. Cunningham, Jr. of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellant.
James A. Yance and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown, Mobile, for appellee.
MADDOX, Justice.
The issue in this appeal is whether the trial court erred in not granting the motion of defendant Alabama Power Company (hereinafter "APCo") for a directed verdict at the close of the plaintiff's case.
The plaintiff, Donald Thomas Williams, was a sheet metal worker employed by Combustion Engineering Company, which was hired by APCo to perform boiler maintenance and repair at APCo's Barry Steam Plant in Mobile County. Williams was working on a scaffold, which consisted of two 2 × 12 boards, the outer ends of which were supported on metal handrails. At a point where the two boards overlapped in the middle, they were supported on a one-inch metal pipe leading out of the boiler, and known as an "impulse line," a low-pressure line that led to a meter and served as a means of measuring pressure inside the vessel. The scaffold had been erected by other Combustion Engineering employees. As plaintiff Williams and another Combustion Engineering employee were using the scaffold, the impulse line supporting the center of the scaffold broke, and the scaffold collapsed. There is no question that the impulse line was not intended for supporting scaffolds, although there was some testimony that pipes are sometimes used by workmen as scaffold supports. The impulse pipe had rusted on the inside. As a result of the collapse of the scaffold, Williams fell and received a dislocated right shoulder, cuts, and abrasions, and he experienced some permanent disability.
Williams sued APCo, alleging that APCo had reserved the right of control over the manner of Combustion Engineering's employees' work, thus creating a duty to provide Williams with a safe place to work, that APCo voluntarily undertook to inspect the work site for safety and did so negligently, and that APCo negligently failed to warn Williams or Combustion Engineering of an alleged latent defect on the premises. At the close of Williams's case, APCo moved for a directed verdict on all three claims; that motion was denied. At the close of all the evidence, APCo again moved for a directed verdict. At that time, the trial court granted APCo's motion as to the claim that APCo had reserved the right of control over the manner of the work, but denied it as to the other two claims. Those two claims were submitted to the jury, and the jury returned a verdict for Williams in the amount of $230,000. APCo filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court denied that motion, and APCo appealed.
A motion for directed verdict tests the sufficiency of the opponent's evidence. Coburn v. American Liberty Ins. Co., 341 So. 2d 717 (Ala.1977). A post-trial motion for JNOV, like a trial motion for *591 directed verdict, is the proper procedural device for challenging, among other things, sufficiency of the evidence, and it permits the trial court to revisit its earlier ruling denying the motion for directed verdict. Barnes v. Dale, 530 So. 2d 770, 776 (Ala. 1988). On a motion for JNOV, the evidence must be viewed in a light most favorable to the non-moving party. Mallory v. Hobbs Trailers, 554 So. 2d 966, 969 (Ala. 1989). A directed verdict is proper only where there is a complete absence of proof[1] on an issue material to the claim or where there are no disputed questions of fact on which reasonable people can differ. Ford Motor Co. v. Phillips, 551 So. 2d 992, 994 (Ala.1989); Caterpillar Tractor Co. v. Ford, 406 So. 2d 854, 856 (Ala.1981).
Regarding Williams's claim that APCo voluntarily undertook to inspect the premises and inspected them negligently, this Court has stated that in a suit of this type, the plaintiff must prove (1) that the defendant had undertaken to inspect the site, particularly the area in which the injury-causing hazard is located, (2) that the defendant performed such inspection negligently, and (3) that such negligence proximately caused the injuries. Columbia Engineering Int'l, Ltd. v. Espey, 429 So. 2d 955, 965 (Ala.1983); Pate v. United States Steel Corp., 393 So. 2d 992, 995 (Ala.1981); Hughes v. Hughes, 367 So. 2d 1384, 1387 (Ala.1979). The defendant's contractual right to enforce safety if a violation is observed does not, alone, constitute a voluntary assumption of the duty to inspect for safety. 429 So. 2d at 966. Also, the defendant's having employees on the site to monitor contract compliance by the independent contractor will not impose a legal duty of safety inspection upon the defendant. 429 So. 2d at 967-68.
After a review of the record, it is apparent to us that most of the evidence relied upon by Williams on his negligent safety inspection claim was adduced after the plaintiff had rested, and, therefore, after the defendant had made its motion for a directed verdict.[2] The evidence produced during the plaintiff's case consists of hypothetical questions and answers that show no more than that if one of APCo's employees saw a scaffold supported by an impulse line, then it would be his job to point it out to Combustion Engineering.[3] The evidence *592 produced by Williams shows only that APCo employees were on site to insure contract compliance, that none of them undertook to inspect for safety, and that none of them saw or inspected the scaffold in question.[4]
After our review of the evidence, we hold that there was no evidence produced by Williams that goes to prove that APCo voluntarily undertook to inspect the work site or the area of the scaffold in question. Therefore, the trial court erred in submitting this claim to the jury.
As to Williams's claim of a failure to warn of a latent defect, the record shows that Williams did not produce a scintilla of evidence that APCo knew, or should have known, of the dangerous condition of the impulse line pipe supporting the scaffold. There is no evidence that APCo approved the use of impulse lines for supporting scaffolds or that APCo knew that Combustion Engineering had erected this scaffold on this impulse line. Indeed, Williams's evidence showed that interior corrosion of pipes of this type was common knowledge among engineers in the industry; thus, Combustion Engineering had knowledge of the pipe's potential danger equal to the knowledge of APCo, and, yet, Combustion Engineering placed this scaffold on this pipe notwithstanding its knowledge of the danger. Williams did produce evidence that APCo employees had been near the scaffold and that one of these employees could have seen that the scaffold was supported by the impulse line, but clearly the evidence was not of the type and quality that this Court has held sufficient in such cases as Hodge v. United States Fidelity & Guaranty Co., 539 So. 2d 229 (Ala.1989), and United States Fidelity & Guaranty Co. v. Jones, 356 So. 2d 596 (Ala.1977), two cases relied upon by the plaintiff. There is no duty to warn an invitee who has equal or superior knowledge of a potential danger. Quillen v. Quillen, 388 So. 2d 985, 989 (Ala.1980). Further, a premises owner does not owe a duty of care to employees of an independent contractor with respect to working conditions arising during the progress of the work on the contract. Weeks v. Alabama Electric Coop., Inc., 419 So. 2d 1381, 1383 (Ala.1982). Here, during the course of performing the work called for in the contract, Combustion Engineering placed this scaffold on the impulse line without APCo's knowledge or consent. Therefore, the trial court also erred in submitting Williams's failure-to-warn claim to the jury.
For these reasons, we hold that the trial court erred in not granting APCo's motion for a directed verdict on all claims at the close of Williams's case and in not granting APCo's motion for JNOV. Therefore, the *593 judgment of the trial court is reversed and judgment is rendered in favor of APCo.
REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Williams's action was pending on June 11, 1987; therefore, the standard applicable to this case is the "scintilla rule." Ala.Code 1975, § 12-21-12.
[2] In its reply brief, the defendant answers the plaintiff's argument that there was sufficient evidence presented on his negligent inspection claim and his failure to warn claim, as follows:
"Williams complains that APCo's statement of facts omits certain `essential' facts, is biased, and otherwise inappropriate under the applicable standard of review. His own selective rendition of the facts, however, is characterized by a complete failure to distinguish the evidence adduced in his case from that adduced in APCo's case, and a rather obvious omission of certain key facts adduced in his own case which are fatal to the two theories which survived the motion for directed verdict. When one considers the state of the evidence as of page 223 of the Reporter's Transcript, at which time Williams had rested and APCo filed and began to argue its motion for directed verdict, one then realizes that Williams did not adduce sufficient evidence on either his `voluntary undertaking to inspect for safety' theory or his `failure to warn of a latent danger' theory. At this point in the case, plaintiff had essentially put all his `eggs in the reservation of control basket,' which was ultimately directed out of the case. Having focused all his evidence on the `control' theory, the record was devoid of any evidence on the claims of `voluntary undertaking' and `latent defect.'"
[3] In his brief, the plaintiff argues that the evidence was sufficient, as follows:
"Glenn Wetzel, APCo's outage coordinator for the area where Mr. Williams was working, testified that he was responsible for correcting safety hazards when he observed them:
"Q. If you saw that scaffolding up there supported in the middle by a rusty pipe exiting the duct work on the number five air heater duct work, it would be your job to point that out and get it corrected?
"A. Yes, sir.
"In addition, Wetzel testified that he and the five other outage coordinators were present at Unit # 5 on a day-to-day, hour-to-hour, basis to inspect the work of Combustion Engineering and to insure its compliance with the construction contract. One of the provisions in the construction contract required Combustion Engineering to work with safe equipment. Wetzel testified that one of his jobs as outage coordinator was to insure that Combustion Engineering was complying with the contract by working with safe equipment. Wetzel testified that he was present at Unit # 5 every day during the outage, including the day Mr. Williams fell. Wetzel testified that he could not recall whether he had seen the scaffold before Mr. Williams' fall."
This hypothetical question and the answer thereto used by the plaintiff to support his claim describes only what would happen if Wetzel had inspected the scaffold. It does not show a voluntary undertaking to make such an inspection, nor does it create a duty to do so. Indeed, Wetzel testified: "I had not been on that scaffold, no, sir. I can tell you I had not been in the area to inspect."
[4] The record does show that APCo "outage coordinators" were on the job site, but their presence was consistent with the subject contract, which provided, in part:
"It is also understood and agreed that [APCo] may at all times have the right to have its engineers, or other authorized representatives, inspect the work being done under the contract and to ascertain whether all work is being done in accordance with these Instructions to Bidders and General Conditions, and the Specifications and drawings, not for the purpose of controlling the method and manner of the performance of the work, but in order to assure that all work meets the requirements of the aforesaid documents and also to assure that work is prosecuted at a rate consistent with the over-all schedule of the project."
The presence of such coordinators on the project to insure contract compliance neither constitutes the control over the employees of an independent contractor, thereby creating a duty upon the premises owner to provide them with a safe place to work (as was recognized by the trial court when it granted the directed verdict on this claim), nor supports a claim of voluntary undertaking. Espey, 429 So. 2d at 966-67 ("[i]n fact, it would be hard to envision a large project of this nature without such activity on behalf of the owner"). | August 31, 1990 |
cecb9a90-cd31-4670-800d-9e2d345b9005 | Ailey v. Nationwide Mut. Ins. Co. | 570 So. 2d 598 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 598 (1990)
Harrison AILEY, et al.
v.
NATIONWIDE MUTUAL INSURANCE COMPANY.
89-791.
Supreme Court of Alabama.
August 31, 1990.
Rehearing Denied November 2, 1990.
*599 Leila Hirayama, Birmingham, for appellants.
Edgar M. Elliott III and Deborah Alley Smith of Rives & Peterson, Birmingham, for appellee.
STEAGALL, Justice.
Plaintiffs Harrison Ailey, James Gurley, and Bartley Thornton appeal from a summary judgment in favor of Nationwide Mutual Insurance Company (hereinafter "Nationwide") on their complaint seeking a declaratory judgment and a preliminary injunction regarding an insurance policy issued to Ailey, a Tennessee resident, by Nationwide. Specifically, the plaintiffs sought a declaration that Nationwide was obligated under its policy with Ailey to provide uninsured motorist benefits to the plaintiffs for injuries they suffered in a multi-vehicle automobile accident in Alabama. The plaintiffs also sought to enjoin Nationwide from withholding its consent to their settlement with four of the defendants. The trial court denied the injunction on July 13, 1989, and entered summary judgment for Nationwide on March 8, 1990.
The accident that was the subject of that action involved a car driven by Lola Patterson, a Central Packaging Corporation truck driven by Willie Joe Davis, and an Adolph Coors Company truck driven by John James Sage. The plaintiffs sued all three drivers, as well as Central Packaging and Adolph Coors. Patterson was insured by Allstate Insurance Company, which paid the limits of liability under her policy, or $39,750. Central Packaging and its driver settled with the plaintiffs for $25,000, as did Adolph Coors and its driver.[1]
At the time of the accident, Ailey had in effect an automobile insurance policy with Nationwide that provided uninsured motorist benefits. Because that policy was issued to Ailey in Tennessee, we will apply Tennessee law in interpreting it. See Best v. Auto-Owners Ins. Co., 540 So. 2d 1381 (Ala.1989), and Cotton v. State Farm Mutual Ins. Co., 540 So. 2d 1387 (Ala.1989).
Nationwide refused to pay Ailey any uninsured motorist benefits, arguing that the other vehicles were not uninsured because the sum of the limits of all of the liability policies exceeded the uninsured *600 motorist limits under Ailey's policy. The plaintiffs take the position that, because Patterson's insurance was insufficient to pay their damages,[2] Ailey is entitled to "underinsurance" coverage under his policy with Nationwide.
Ailey's policy defines "uninsured automobile" as follows:
(Emphasis added.)
Nationwide correctly argues that the plaintiffs are not entitled to uninsured motorist benefits under the policy because, at the time of the accident, all of the vehicles involved had liability insurance with limits in at least the amounts required by the financial responsibility laws of the states where those vehicles were principally garaged. See Tenn.Code Ann. § 55-12-102(12) (1988); Ala.Code 1975, § 32-7-1 et seq. To determine whether the plaintiffs are entitled to underinsured motorist coverage by virtue of Tennessee law on stacking, which could override the limitations in the policy, we must turn to the relevant statutes and cases.
In 1982, Tennessee amended its uninsured motorist statute and eliminated a previous reference to "underinsured motorists," combining the two classifications under one definition:
Tenn.Code Ann. § 56-7-1202(a) (1989) (emphasis added).
A recent Tennessee case, Dockins v. Balboa Ins. Co., 764 S.W.2d 529 (Tenn.1989), explained the amendment and its effect:
"These partial definitions were deleted by the 1982 amendments, and the substituted section 56-7-1202 eliminated the terms `insolvency' and `underinsured' and the proviso for cooperative use vehicles. It appears to us the Legislature simply combined those two categories in a single paragraph to require coverage by the insured's own insurer when the funds to which she is entitled from other policies, bonds, and securities cannot be collected. The reference to collectibility also appears in the last paragraph of section one of the amendment, now T.C.A. XX-X-XXXX(d).[3]
764 S.W.2d at 532 (emphasis added). Even though it was decided prior to the 1982 amendment, Rogers v. Tennessee Farmer's Mutual Ins. Co., 620 S.W.2d 476 (Tenn. 1981), also emphasized the fact that Tennessee does not embrace broad coverage under its uninsured motorist statute.
Applying § 56-7-1202(a) to these facts, we consider it apparent that Nationwide is correct in its position that the available limits of liability on all policies applicable to the injury must be less than the limits of Ailey's uninsured motorist coverage before the uninsured motorist carrier is obligated to pay. The language of § 56-7-1202(a) supports that conclusion: "the sum of the limits of liability available to the insured under all valid and collectible insurance policies ...."
Although the limits of the policies covering Central Packaging, Adolph Coors, and their drivers are unknown, it is undisputed that the $25,000 offered under each policy did not exhaust those limits. Only if the sum of those limits is "less than the applicable limits of uninsured motorist coverage [here, $100,000] provided to the insured under the policy against which the claim is made," § 56-7-1202(a), is Nationwide responsible for underinsured motorist benefits.
The summary judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur.
[1] Although the limits of liability under those parties' policies are unknown, the parties concede that the settlements did not exhaust their coverages.
[2] Although Nationwide agrees that Patterson's insurance was insufficient to cover the plaintiffs' damages, it does not concede that their damages exceeded $200,000, which is the amount they allege as damages in their declaratory judgment action.
[3] That statute reads:
"(d) The limit of liability for an insurer providing uninsured motorist coverage under this section is the amount of that coverage as specified in the policy less the sum of the limits collectible under all liability and/or primary uninsured motorist insurance policies, bonds, and securities applicable to the bodily injury or death of the insured." (Emphasis added.) | August 31, 1990 |
4f02980d-42e2-44db-9477-e3961121d981 | Aldridge v. Dolbeer | 567 So. 2d 1267 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1267 (1990)
Fred ALDRIDGE, individually and d/b/a Fred Aldridge Properties
v.
William J. DOLBEER and Martha A. Dolbeer.
89-241.
Supreme Court of Alabama.
August 31, 1990.
*1268 Daniel F. Aldridge of Brinkley, Ford, Chesnut & Aldridge, Huntsville, for appellant.
Michael L. Fees of Watson, Gammons & Fees, Huntsville, for appellees.
ALMON, Justice.
This is an appeal from a judgment in favor of the plaintiffs, William and Martha Dolbeer, and against the defendant, Fred Aldridge, individually and doing business as Fred Aldridge Enterprises ("Aldridge"), in an action for breach of contract. The questions presented are whether there was sufficient evidence to support the trial court's finding that Aldridge breached the contract, and if so, whether the damages awarded were proper.
In September 1984, the Dolbeers entered into a contract with Aldridge whereby they purchased approximately 3.3 acres of undeveloped real estate from him for $7,500. The property was part of a residential development planned by Aldridge known as Caldwell Estates. That sales contract contained the following provision:
Despite that provision, Aldridge has not yet installed water on the Dolbeers' property. As a result of his failure, the Dolbeers filed a complaint alleging breach of contract and seeking specific performance or money damages. Following a nonjury trial, the court entered a judgment for the Dolbeers awarding damages of $10,270. Aldridge appeals from that judgment.
When a contract states that an act is to be done but no time is prescribed for its performance, as was the case with Aldridge's obligation to supply water to the Dolbeers' property, the law requires that the act be done within a reasonable time. Hendrix, Mohr & Yardley, Inc. v. City of Daphne, 359 So. 2d 792, 796 (Ala.1978). What is a reasonable time depends upon *1269 the nature of the act to be done and all the circumstances relating to that act and is a question to be determined by the trier of factin this instance the trial judge. Id.
Aldridge testified that at the time the contract was entered into he understood that the Dolbeers were purchasing the property for the purpose of building a home on it and were, in fact, "anxious to build." Aldridge also testified that he doubted that the Dolbeers would have purchased the property if they had known that it still would not be supplied with water almost six years later. William Dolbeer testified that during the summer of 1985 he and Martha cleared the property in preparation for building. He said they also spent approximately $1,600 to have a driveway constructed and paid a local architect $1,178 to draw plans for the house they wished to build.
Aldridge testified that he had attempted to have a water system installed to serve Caldwell Estates soon after the Dolbeers bought the property, but was not successful. Later, Aldridge assured the Dolbeers and other purchasers that he would be able to install water when the county ran a water main down nearby Caldwell Lane. That water main was installed early in 1986, and Aldridge testified that it could have been used to supply the Dolbeers with water as early as April of that year.[1]
However, soon after the county water main had been completed, Aldridge learned that a large residential development was being planned by another developer for property adjacent to Caldwell Estates. That adjacent development was to be annexed into the City of Huntsville and would then receive city services, including water. Therefore, Aldridge decided to discontinue his efforts to connect to the county water supply, and to await the completion of the nearby development and its subsequent annexation into Huntsville. He testified that after that annexation, he hopes to have Caldwell Estates annexed into the city, at which time, he says, he will attempt to supply the development with water from the city system. However, Aldridge conceded that his plan was contingent on a number of events over which he had no control, including the completion of the adjacent development and the annexation of Caldwell Estates into Huntsville. Aldridge speculated that the Dolbeers would have water in six months to one year after the adjacent development was annexed if his plan was successful.
Based on the testimony and other evidence presented at trial, this Court agrees that Aldridge failed to fulfill his contractual obligation to supply the Dolbeers with water within a reasonable time, thereby breaching the contract. Aldridge's testimony clearly established that he could have installed water on the Dolbeers' property in early 1986, but chose not to do so. That failure alone was a breach of the reasonable time requirement implicit in the contract. Hendrix, supra. His continuing failure to install water is further evidence of that breach. Therefore, the trial judge's finding of liability is affirmed.
The trial court awarded the Dolbeers damages totalling $10,270. Although the court's judgment does not explain how that figure was arrived at, this Court notes that the three main elements of damages claimed by the Dolbeers$7,500 spent to purchase the property, $1,600 spent to construct a driveway, and $1,178 spent on architectural drawingstotal $10,278. Aldridge argues that the damages awarded are excessive and are not supported by the evidence.
The ordinary measure of damages awarded in actions for breach of contract is an amount sufficient to return the plaintiff to the position he would have occupied had the breach not occurred. Boyett v. Oakes, 518 So. 2d 37 (Ala.1987). In addition, the damages claimed must be "the natural and proximate consequences of the breach and such as may reasonably be supposed to *1270 have been within the contemplation of the parties at the time the contract was made." Winslett v. Rice, 272 Ala. 25, 31, 128 So. 2d 94, 99 (1960); Marshall Durbin Farms, Inc. v. Landers, 470 So. 2d 1098 (Ala.1985); Alabama Pattern Jury Instructions: Civil 11.28 (1974); C. Gamble, Alabama Law of Damages § 17-1 (2d ed.1988). The plaintiff has the burden of producing sufficient evidence of his loss to allow the factfinder to calculate the damages without operating from guesswork. Johnson v. Harrison, 404 So. 2d 337 (Ala.1981).
After reviewing the record, this Court concludes that the evidence presented did not support an award of damages totaling $10,000. The evidence does not indicate that the Dolbeers have lost all use of the property or that it is totally without value to them. Rather, it appears that the property may have appreciated in value due to the extensive development of adjacent property. Therefore, the entire purchase price of the property cannot be included as an element of the Dolbeers' damagesat least not without requiring them to return the property to Aldridge. In addition, there is no evidence that the Dolbeers have abandoned their plans to build on the property, which were evidenced by their initial request for specific performance of the contract. Therefore, the architectural drawings they commissioned are still of some value to them.
For the reasons stated above, that portion of the judgment finding Aldridge liable for breach of contract is affirmed. However, that portion awarding damages is reversed and this cause is remanded for an evidentiary hearing to determine an amount that would be sufficient to restore the Dolbeers to the position they would have occupied had the breach not occurred. Boyett, supra.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Aldridge received a letter from the Madison County director of public works listing the conditions that would have to be met before the county would supply water to his planned development. He stated that he could have satisfied those conditions as early as April 1986. | August 31, 1990 |
093f7959-bd22-495a-8e76-03ade04c7537 | Tanksley v. Alabama Gas Corp. | 568 So. 2d 731 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 731 (1990)
Randy TANKSLEY and Rhonda Tanksley
v.
ALABAMA GAS CORPORATION and Austin Smith.
Doris Estelle TANKSLEY, as administratrix of the Estate of Travis Earl Tanksley, deceased
v.
ALABAMA GAS CORPORATION and Austin Smith.
88-1528, 88-1529.
Supreme Court of Alabama.
August 24, 1990.
Gene M. Hamby, Jr., Sheffield, for appellants.
Samuel H. Franklin and Norman Jetmundsen, Jr. of Bradley, Arant, Rose & White, Birmingham, for appellees.
MADDOX, Justice.
These appeals involve a question of whether Alabama Gas Corporation was acting as an owner or as a prime contractor at the time when there was a ditch cave-in on a pipeline project that resulted in the death and personal injuries of Travis and Randy Tanksley respectively. The appeals are from two judgments based upon jury verdicts rendered in favor of Alabama Gas Corporation and its inspector, Austin Smith.
The primary issue presented is stated by the plaintiffs as follows:
On the morning of November 6, 1985, Randy Tanksley and his father, Travis Tanksley, employees with Roland Pugh Construction, were engaged in the process *732 of welding together pipes in the construction of a gas pipeline. The pipes were being laid in a ditch excavated by Roland Pugh Construction,[1] which was one of several construction companies that Alabama Gas had retained in order to construct a gas pipeline that would run from Verbena, Alabama, to the Cahaba Heights/Mountain Brook area near Birmingham, Alabama, a distance of 53 miles. While the two men were welding the pipes together, one of the dirt walls caved in, trapping both of them. Randy was not completely covered by the fallen dirt and he was quickly rescued. He sustained only injuries to his lower body. His father, Travis, however, was completely covered by dirt, and was not rescued until some 30 minutes later. He died as a result of internal injuries he had sustained.
Randy and his wife Rhonda and Doris Estelle Tanksley, the wife of Travis Tanksley and personal representative of his estate, sued Alabama Gas, Austin Smith, Roland Pugh Construction, certain employees of Roland Pugh Construction, and several fictitiously named parties.
In her wrongful death action, Doris Tanksley alleged that her husband's death was proximately caused by the combined negligent acts of the defendants. In their separate complaint, Randy and Rhonda Tanksley claimed damages for personal injuries and loss of consortium, respectively.
On January 18, 1988, the trial court, pursuant to the provisions of a pro tanto release executed by all of the plaintiffs, dismissed Roland Pugh Construction, certain of its employees, and several fictitiously named parties, with prejudice. That left Alabama Gas and its inspector, Austin Smith, as the only remaining defendants named in the two lawsuits, and based on their motion to consolidate, the trial court consolidated the two actions pursuant to Rule 42(a), A.R.Civ.P.
As previously noted, the central question presented by plaintiffs is whether the trial court erred in determining that there was no prime contractor/subcontractor relationship between Alabama Gas Corporation and Roland Pugh Construction Company.
The alleged error arose when plaintiffs' attorney attempted to question an expert witness, Weaver. The OSHA standards were admitted into evidence as Plaintiff's Exhibit 24. Defendants went into detail on cross-examination of Mr. Weaver to show that the OSHA standards applied to Roland Pugh Construction Company.
Plaintiffs attempted to question Mr. Weaver about the applicability of the OSHA standards to Alabama Gas Corporation.
As can be seen, plaintiffs' counsel argued during the trial, and restates the argument here, that Alabama Gas, through the actions of its inspector, Austin Smith, effectively assumed control over the dayto-day operations of Roland Pugh Construction and its employees, specifically Randy and Travis Tanksley, and that this control by Alabama Gas established a prime subcontractor/subcontractor relationship between Alabama Gas Corporation and Roland Pugh Construction, and that Alabama Gas thereby undertook the responsibility for providing the employees of Roland Pugh Construction with a safe working environment pursuant to rules of the Occupational Safety and Health Administration ("OSHA").[2]
*734 Plaintiffs also contended that Alabama Gas assumed the duty to provide a safe place to work and should have required that Roland Pugh Construction abide by certain safety rules promulgated by the Department of Labor and enforced by OSHA.[3] The plaintiffs, therefore, argued that Alabama Gas, through its inspector, Austin Smith, violated an assumed duty to provide Randy and Travis Tanksley with the safe working environment required under OSHA rules, when it, through its inspector, Austin Smith, failed to require Roland Pugh Construction to reinforce the dirt walls.
Alabama Gas, on the other hand, argued that the trial court did not commit error because, it says, "[t]here was no evidence to establish any prime contractor/subcontractor relationship between Alabama Gas Corporation and Roland Pugh Construction Company." Alabama Gas argues that "[i]n the contract, Roland Pugh Construction clearly and unambiguously retained control over the manner in which the work was performed, and assumed all safety responsibility for its employees" and that "Pugh Construction expressly agreed to comply with all applicable laws and regulations, including OSHA." Alabama Gas argues, therefore, that "[h]ad the expert been allowed to express an opinion on the relationship between Alabama Gas and Pugh Construction, it would have been an opinion on the ultimate issue of duty or no duty that the jury was to decide in this particular case." (Emphasis in original). We agree with Alabama Gas that in this case the evidence does not show that Alabama Gas retained the right to control the manner in which the contract was performed, only the right to inspect the job site to insure compliance with contract specifications.
The jury returned verdicts in favor of the defendants, and the court entered judgments on those verdicts. The plaintiffs separately appealed, and pursuant to Rule 3(b), A.R.App.P., this Court has consolidated the two appeals.
The standard of review for an appeal from a judgment based on a jury verdict, and subsequent denial of a motion for a new trial, was recently discussed in the case of Davis v. Ulin, 545 So. 2d 14, 15 (Ala. 1989), in which this Court stated the following:
In their motions for a new trial and also in their briefs filed with this Court, the plaintiffs argued that the trial court erred in two instances during the trial: 1) that the trial court erred in sustaining the defendants' objection to plaintiffs' Exhibit 26, an article entitled, Failures Resulting from ExcavationTheir Causes and Prevention, by George F. Sowers; and 2) that, as a matter of law, there was evidence presented by the plaintiffs to establish the existence of a prime contractor/subcontractor relationship between Alabama Gas and Roland Pugh Construction, and that the trial court erred in not permitting them to show that Alabama Gas was a prime contractor on the project, and, therefore, subject *735 to the OSHA regulations. The trial court submitted to the jury the question whether Alabama Gas, through the actions of its inspector, Austin Smith, assumed or undertook responsibility for the safety of Roland Pugh Construction's employees, and instructed them as follows:
Plaintiffs complained during the trial, and renew their complaint here, that the trial judge would not permit them to question their expert witness concerning the applicability of OSHA to Alabama Gas under the particular facts of this case. They contend that there was plenty of evidence to show that a prime contractor/subcontractor relationship existed between Alabama Gas and Roland Pugh Construction.
We first consider this ruling by the trial court that the plaintiffs could not question the expert because they failed to establish the existence of a prime contractor/ subcontractor relationship between Alabama Gas and Roland Pugh Construction, as a matter of law.[4]
The record shows that on August 6, 1985, Alabama Gas entered into a contract with Roland Pugh Construction for the construction of a gas pipeline. The "General Conditions" section of that contract, specifically paragraph 12, states the following:
Paragraph 48 of the General Conditions states:
Finally, paragraph 75 of the General Conditions states:
The quoted provisions of the contract between Alabama Gas and Roland Pugh Construction expressly provide that: (1) Roland Pugh Construction was an "independent contractor" under its contract with Alabama Gas; (2) Alabama Gas did not retain the right to dictate the manner in which Roland Pugh Construction would perform its duties under the contract, and (3) Roland Pugh Construction, not Alabama Gas, was required to provide a safe working environment for its employees and was required to abide by all applicable OSHA rules during the performance of its duties under the contract.
Despite the presence of express provisions in a contract such as those set out above, this Court has stated in a number of cases that the parties' characterization of their relationship is not controlling; it is the actual behavior of the parties that determines the true character of their relationship. See Alabama Power Co. v. Beam, 472 So. 2d 619 (Ala.1985); National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala.1983); Semo Aviation, Inc. v. Southeastern Airways, 360 So. 2d 936 (Ala. 1978). Under the rule of those cases, the real test to apply in order to ascertain whether Roland Pugh Construction was a subcontractor or was an independent contractor of Alabama Gas is whether Alabama Gas, through its inspector, Austin Smith, controlled the manner in which Roland Pugh Construction performed its duties under the contract. See Fuller v. Tractor & Equipment Co., 545 So. 2d 757 (Ala.1989); Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala.1987); Sessions Co. v. Turner, 493 So. 2d 1387 (Ala.1986). In our opinion, the record clearly shows that Alabama Gas did not, through the actions of its inspector, Austin Smith, retain any control over the manner in which Roland Pugh Construction could perform its duties under the contract. In his deposition, which was read into evidence during the trial, Vernon Sauls, a sideboom operator who was working for Roland Pugh Construction, and who was nearby at the time of the accident, testified to the following concerning Austin Smith's alleged supervision of the job site:
Randy Tanksley testified, regarding Austin Smith's alleged supervision of the job site, as follows:
Finally, Laury Weaver, who was then a compliance officer working for OSHA and who was assigned to investigate the accident involving Randy and Travis Tanksley, testified concerning the responsibility for reinforcing the walls of the ditch before the Tanksleys' descent into the ditch:
In light of the foregoing testimony, it is clear to this Court, as it was to the trial judge, that Austin Smith did not exercise any control over the manner in which Roland Pugh Construction performed its duties under the contract. Therefore, the trial court did not err in ruling that, as a matter of law, the evidence presented during the trial did not establish the existence of a prime contractor/subcontractor relationship between Alabama Gas and Roland Pugh Construction. Under the facts presented, the only conclusion that the trial court, or the jury, could reach was that Roland Pugh Construction's relationship with Alabama Gas was that of an "independent contractor."
Our review of the evidence presented clearly convinces us that the trial court did not err in ruling that, as a matter of law, the plaintiffs failed to establish the existence of a prime contractor/subcontractor relationship between Alabama Gas and Roland Pugh Construction.
Even though we hold that the trial court did not err in its ruling that Alabama Gas was not a "prime contractor," we note that a separate issue, and one tried by the plaintiffs, was whether Alabama Gas had somehow assumed a safety responsibility for the employees of Roland Pugh Construction. This issue was allowed to go to the jury for their consideration, and the jury found in favor of the defendants. In view of this, even assuming that the trial court erred in refusing to permit the expert to be questioned concerning the applicability of OSHA to Alabama Gas, plaintiffs were allowed to present their theory to the jury, the jury was properly charged on this theory of liability, and plaintiffs received an adverse determination; therefore, they cannot now complain that they were substantially prejudiced by the ruling of the trial court. Rule 45, A.R.App.P. The trial court's instructions to the jury correctly set forth the applicable law in this case.
In light of the instruction given to the jury, and the evidence presented before it during the trial, this Court cannot say that the jury's verdicts returned in favor of the defendants were "plainly and palpably" wrong. The verdicts were supported by the evidence.
We find no merit in the other issue raised by the appellants regarding the *738 court's refusal to permit the plaintiffs to introduce into evidence an article entitled Failures Resulting From Excavation Their Causes and Prevention, by George F. Sowers.
For the foregoing reasons, the judgments of the trial court are due to be, and they hereby are, affirmed.
88-1528 AFFIRMED.
88-1529 AFFIRMED.
HORNSBY, C.J., and ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The ditch was 8 feet wide and varied between 13 and 17 feet deep.
[2] 29 C.F.R. § 1926.169 (1989), which speaks to the duty that exists between a prime contractor and its subcontractor to abide by OSHA rules, reads, in part, as follows:
"§ 1926.169 Rules of Construction.
"(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to have joint responsibility.
"(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act." (Emphasis added.)
See Pate v. United States Steel Corp., 393 So. 2d 992, 994 (Ala.1981), in which this Court stated that a "prime contractor has the duty of providing the employees of its subcontractors a safe place to work."
[3] The specific federal statute that mandates that an employer shall provide its employees with a safe working environment is 29 U.S.C. § 654, which reads as follows:
"§ 654. Duties of employers and employees
"(a) Each employer
"(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
"(2) shall comply with occupational safety and health standards promulgated under this chapter.
"(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct."
[4] The ruling of the trial court came when plaintiffs' attorney was questioning their expert concerning the applicability of OSHA to Alabama Gas as the prime contractor. During the colloquy between the court and counsel, plaintiffs' counsel contended that "[t]here's certainly evidence of [a prime contractor/subcontractor relationship].... They had four different subcontractors out there doing different legs of the work.... They were the prime ... [a]nd it's on the record." When the trial court asked plaintiffs' counsel what he based his contention on, counsel replied, "I think the contract and everything else creates an owner prime contractor sub situation." | August 24, 1990 |
1acb1a5a-7dd0-4ebc-8f02-da7d0187cb0c | Exxon Corp. v. Waite | 564 So. 2d 941 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 941 (1990)
EXXON CORPORATION, et al.
v.
Robert R. WAITE, et al.
EXXON CORPORATION, et al.
v.
Michael Terry LLOYD, et al.
John J. WHITEHEAD
v.
EXXON CORPORATION.
Ivan H. NALL and Virginia G. Nall
v.
John J. WHITEHEAD.
EXXON CORPORATION
v.
John J. WHITEHEAD.
88-1188, 88-1189, 88-1340, 88-1346 and 88-1381.
Supreme Court of Alabama.
July 13, 1990.
Ben H. Harris, Jr., William H. Hardie and Alan C. Christian of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellant/cross-appellee Exxon Corp.
Robert S. Edington, Mobile, for appellant/cross-appellee John J. Whitehead.
Ralph G. Holberg III of Holberg and Danley, Mobile, for appellants Ivan H. and Virginia G. Nall.
Halron W. Turner and Frank Woodson of Turner, Onderdonk & Kimbrough, Chatom, for appellees Robert R. Waite, Margie N. Waite, Relco, Inc., Michael T. Lloyd, Brenda K. Lloyd and Edward P. Turner, Jr.
ADAMS, Justice.
These appeals involve three consolidated actions to quiet title to an undivided ½ mineral interest in four residential lots in Mobile County. The dispute arose from a purported reservation of the mineral interest in the deeds from the developer of the subdivision.
The parties all initially share a common chain of title. On September 1, 1949, C.M. Cleveland and his wife, Elizabeth Cleveland, conveyed 386 acres of land to Ora Harwell. In the conveyance, the Clevelands *942 reserved an undivided ½ interest in the oil, gas, and minerals. The Clevelands' mineral reservation is not in dispute.
On March 5, 1962, Ora Harwell and his wife, Irene Harwell, conveyed the property they had received from the Clevelands, including their undivided ½ mineral interest, to Ivan H. Nall and his wife, Virginia Grace Nall. The deed from the Harwells to the Nalls did not contain a reservation of the mineral interest; therefore, the Nalls received the 386 acres and the Harwells' undivided ½ mineral interest. The Nalls subdivided a portion of the land they had obtained from the Harwells into the Stately Pines subdivision. The Nalls subsequently conveyed lots 5, 9, 10, and 11 in the subdivision.
On October 11, 1974, the Nalls executed an oil, gas, and mineral lease of the entire Stately Pines subdivision to Exxon. In that lease the Nalls deleted the warranty clause. The lease granted to Exxon 13/16 of the Nalls' undivided ½ mineral interest to Exxon as a working interest and retained 3/16 of the Nalls' undivided ½ mineral interest as a royalty interest for the Nalls. That lease was recorded in the office of the judge of probate on April 2, 1975.
On April 25, 1973, the Nalls conveyed by warranty deed lots 10 and 11 of the Stately Pines Subdivision to Robert R. Waite and his wife, Margie N. Waite. The deed, which was prepared by the Nalls, contained the following language: "Oil and mineral rights reserved by former owners."
On July 30, 1975, the Waites executed an oil, gas, and mineral lease to Clifford O. Rudder. On April 26, 1983, Rudder assigned his interest in the lease to Relco, Inc.
On January 4, 1984, the Waites and Relco, Inc., sued the Nalls and Exxon to quiet title to the undivided ½ mineral interest in lots 10 and 11. The Nalls and Exxon filed an answer and a counterclaim to quiet title to lots 10 and 11.
The Waites claim the undivided ½ royalty interest, and Relco claims the undivided ½ working interest in lots 10 and 11. However, the Nalls also claim the undivided ½ royalty interest, and Exxon also claims the undivided ½ working interest in lots 10 and 11.
On April 25, 1973, the Nalls conveyed by warranty deed lot 9 of the Stately Pines Subdivision to Michael Terry Lloyd and his wife, Brenda K. Lloyd. The deed, which was prepared by the Nalls, contained the following language: "Oil and mineral rights reserved by former owners."
On November 19, 1975, the Lloyds executed an oil, gas, and mineral lease to Edward P. Turner, Jr. That lease was recorded in the office of the judge of probate on December 3, 1975.
On July 29, 1985, the Lloyds and Edward Turner filed suit against the Nalls and Exxon to quiet title to an undivided ½ mineral interest in lot 9. The Nalls and Exxon filed an answer and a counterclaim to quiet title to lot 9.
The Lloyds claim the undivided ½ royalty interest, and Turner claims the undivided ½ working interest in lot 9. However, the Nalls also claim the undivided ½ royalty interest, and Exxon also claims the undivided ½ working interest in lot 9.
On August 13, 1973, the Nalls conveyed by warranty deed lot 5 of the Stately Pines Subdivision to Jerry Lowery. The deed, which was prepared by the Nalls, contained the following language: "All oil and mineral rights reserved by former owners." The deed from the Nalls to Lowery was not recorded in the office of the judge of probate until August 18, 1975.
On January 9, 1980, Lowery purported to convey all of his ½ interest in the minerals to J.S. Roberts, Jr. That deed was recorded in the office of the judge of probate on January 17, 1980. On December 7, 1981, Roberts purported to convey his interest by deed to John J. Whitehead. That deed was recorded in the office of the judge of probate on December 11, 1981.
*943 On June 29, 1982, Whitehead's attorney forwarded to Exxon a title opinion regarding the mineral interest in lot 5. Thereafter, Exxon began making royalty payments to Whitehead, which continued until October 27, 1983, when they were suspended.
On July 29, 1985, Whitehead sued the Nalls and Exxon to quiet title to an undivided ½ mineral interest in lot 9. The Nalls and Exxon filed an answer and counterclaim to quiet title to lot 9.
Whitehead claims the undivided ½ mineral interest in lot 5. However, the Nalls claim the undivided ½ royalty interest, and Exxon claims the undivided ½ working interest in lot 5.
The Waite, Lloyd, and Whitehead cases were consolidated for trial, upon a motion by Exxon. On March 19, 1986, the trial court held that the three deeds were not ambiguous and heard testimony only on the question of whether Exxon was a bona fide purchaser of the mineral interest in lot 5 with reference to the Whitehead conveyance.
The trial court held that the language "oil and mineral rights reserved by former owners" was not an effective reservation of the mineral rights by the Nalls.[1] The trial court quieted title to the undivided ½ mineral interest in lots 10 and 11 in favor of the Waites and Relco; quieted title to the undivided ½ mineral interest in lot 9 in favor of the Lloyds and Turner; quieted title to the undivided ½ mineral interest in lot 5 in favor of Whitehead as to the Nalls' reserved royalty interest under their lease to Exxon, but in favor of Exxon as a bona fide purchaser for value as to the working interest under the Nalls' lease.
The Nalls and Exxon appeal from the judgments in favor of the Waites, Relco, the Lloyds, and Turner. Whitehead appeals from the judgment in favor of Exxon holding that Exxon was a bona fide purchaser, and Exxon and the Nalls cross appeal from that judgment insofar as it construed the language of the purported reservation against them.
In Financial Investment Corp. v. Tukabatchee Area Council, 353 So. 2d 1389, 1391 (Ala.1977), this Court stated the basic objectives in construing the terms of a deed:
At trial, while all the parties argued that the language in the deeds purporting to reserve a mineral interest was unambiguous, they differed in their interpretation of what the purported reservation was intended to mean. Thus, the dispositive issue is whether the language "oil and mineral rights reserved by former owners" is ambiguous.
After considering the language within the four corners of the deeds, we disagree with the trial court's holding that the language of the reservation is unambiguous and that it clearly reserves all oil and mineral rights. On the one hand, we would have to strain the meaning of "former owners" to assume that the phrase should be taken as including the grantors, the Nalls. The deeds were prepared by the Nalls; can they be "former owners"? At the time they wrote the words "former owners," the Nalls were the present owners. When making reference to minerals reserved by "former owners" the Nalls could have been referring to owners who had preceded them in the chain of title, i.e., the Clevelands. Therefore, it could be interpreted that the Nalls could have been making their conveyance subject to all reservations of minerals by owners prior to themselves in the chain of title, in order to protect their warranty.
On the other hand, it could also be determined that "former owners" would include the Nalls as well as the Clevelands. Webster's New Collegiate Dictionary (1980 ed.) defines "former" as "coming before in time; of, relating to, or occurring in the past; preceding in place or arrangement; foregoing; first mentioned or in order of two things mentioned or understood; preceding." Thus, given the sequence of the deeds, C.M. Cleveland became a "former owner" upon delivery of his deed to Ora Harwell, and the Nalls became "former owners" upon delivery of the deeds to the Waites, the Lloyds, and Lowery. One might ask why the Nalls would have included the language in the deeds unless they intended to reserve the mineral rights to themselves as "former owners."
Does "former owner" mean only owners who came before the Nalls in the chain of title, or does it include the Nalls, who were the "present" owners at the time the phrase was inserted in the deed? We think it conceivably could mean either.[2] We hold that the purported reservation language used by the Nalls in the conveyances is ambiguous; therefore, we need not reach the issue of whether Exxon was a bona fide purchaser for value as to the working interest under Whitehead's claim. We, therefore, reverse the judgments and remand the cases to the trial court for testimony relating to extraneous evidence of the acts and declarations of the parties in order to determine the intent of the grantorsthe Nalls.
88-1188 REVERSED AND REMANDED.
88-1189 REVERSED AND REMANDED.
88-1340 REVERSED AND REMANDED.
88-1346 REVERSED AND REMANDED.
88-1381 REVERSED AND REMANDED.
*945 HORNSBY, C.J., and MADDOX, JONES, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] We note that the Lowery deed provides "All oil and mineral rights are reserved by former owners," while the Lloyd and Waite deeds provide "oil and mineral rights reserved by former owners"the only difference between the three deeds being the words "All" and "are."
[2] Our research has revealed only two other cases where a purported reservation contained the words "former owners." Unfortunately, those cases do not turn on the language of "former owners." In Central Oil Co. v. Shows, 246 Miss. 300, 149 So. 2d 306 (1963), the deed contained the following language: "* * * less such minerals as have heretofore been sold or reserved by former owners." In Merchants & Manufacturers Bank v. Dennis, 229 Miss. 447, 91 So. 2d 254 (1956), one of the deeds contained the following language:
"An undivided one-half (½) interest in and to all oil, gas and other minerals in, on and under the above described lands, having been heretofore conveyed or reserved by former owners, is excepted from this conveyance. By this conveyance, grantors convey and warrant unto grantee the above described lands and an undivided one-half (½) interest in and to all of the oil, gas and other minerals in, on and under the above-described lands." | July 13, 1990 |
54020007-8ad3-492d-b2a9-8e0ad6aecb8f | Barbour County Com'n v. EMPLOYEES OF BARBOUR COUNTY SHERIFF'S DEPT. | 566 So. 2d 493 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 493 (1990)
BARBOUR COUNTY COMMISSION
v.
EMPLOYEES OF the BARBOUR COUNTY SHERIFF'S DEPARTMENT, et al.
89-609.
Supreme Court of Alabama.
August 3, 1990.
James L. Martin, Eufaula, for appellant.
Jimmy S. Calton, Eufaula, for appellees.
*494 HORNSBY, Chief Justice.
The employees of the Barbour County sheriff's department, tax assessor's office, tax collector's office, and juvenile office ("employees") sued the Barbour County Commission ("Commission"), alleging that the Commission discriminated against the employees by not offering them certain retirement and insurance benefits. The case was submitted on a stipulation of facts, and the trial court ruled against the Commission, requiring it to offer certain retirement and insurance benefits to the employees. We affirm.
The trial court's order reads as follows:
"This case was assigned to the undersigned Special Judge by Order of Chief Justice Sonny Hornsby on the 9th day of February, 1989. The attorneys for the Plaintiffs and Defendants submitted this cause for determination under an Agreed Stipulation of Facts and certain evidence submitted without objection.
"For the sake of clarity, continuity, and easy reference, the written stipulated facts are hereby set out verbatim and a copy of the resolution in question is attached as Exhibit A to this Order [omitted from this opinion]:
"`All of the Plaintiffs and all of the employees of the Barbour County Commission are at-will employees and can only be hired and fired by formal action of the Barbour County Commission. Plaintiffs and all employees of the Barbour County Commission are subject to the Employee's Guidebook, which is handed to each employee at the initial date of employment. Salaries of the Plaintiffs and all other Barbour County employees and all other benefits given said employees are set by the County Commission. The Solid Waste employees were allowed to begin participating in the retirement fund on March 1, 1982, and their salaries are paid out of the Solid Waste Fund. Those employees who are allowed to participate in the retirement fund contribute 5% of their monthly salary. The County contributes the remaining portion of the contribution, which varies from year to year and in 1982 amounted to 22% and in 1988 amounted to 7.5% of each employee's monthly salary. Those employees who are furnished insurance receive said coverage at no charge but the employee pays for the cost of adding dependent's insurance if said employee elects to receive same.
"`The Parties stipulate that the following exhibits shall be admitted into evidence without objection: (1) Section 40-6A-1 through 8, Code of Alabama, 1975 (Act which switched Tax Collector and Tax Assessor to salary and obligated the county commissioners to employ office personnel to work in said offices); (2) Act 82-855, adopted August 22, 1982 (Act which authorized County Commissioner to employ Chief Clerk to work in Probate Office); (3) Act 81-733, adopted May 21, 1988 (Act authorizing County Commission to employ additional clerical employees in Office of the Tax Assessor or Office of the Tax Collector); (4) June 10, 1987, letter from Benelle Warr to Commission members; (5) Employee Guidebook furnished to County employees; (6) Answers to Interrogatories; (7) exhibits furnished pursuant to Motion to Produce; (8) August 29, 1972, Resolution approving participation in retirement plan; (9) Commission minutes of March 14, 1988, March 4, 1982, October 19, 1982, and April 1988 [sic]; (10) Section 36-27-6, Code of Alabama 1975; (11) Sections 11-91-1 through 11-91-7, Code of Alabama 1975
"In Woco Pep Co. of Montgomery v. City of Montgomery, 213 Ala. 452, 105 So. 214, 218 (1925), the Alabama Supreme Court set out 5 criteria for determining the validity of legislative classifications:
"`Tests for the determination of the operation or administration of a law or ordinance as to a classification contained therein within the Constitutions, state and federal, are that the class (1) must be germane to the purpose of the law; (2) must bring within its influence all who are under the same conditions and apply equally to each person or member of the class, or each person or member who may become one of such class; (3) must not be so restricted and made to rest upon existing circumstances only as not to include proper additions to the number included within the class; (4) must be based on substantial distinctions which make one class different from another; and (5) must be reasonable under the facts of the case, and not oppressive and prohibitive. Gamble v. City Council of Montgomery, 147 Ala. 682, 39 So. 353; Republic I. & S. Co. v. State, 204 Ala. 469, 86 So. 65; St. Louis Co. v. Illinois, 185 U.S. 203, 22 S. Ct. 616, 46 L. Ed. 872; State v. W.U.T. Co., 208 Ala. 228, 94 So. 466. This is necessary to secure uniformity in the operation, administration, and proper distribution of the burdens of government. Ex parte Robert Smith, 212 Ala. 262, 102 So. 122; Republic I. & S. Co. v. State, 204 Ala. 469, 86 So. 65.'
"Likewise in Stanton v. Stanton, 421 U.S. 7, 95 S. Ct. 1373, 43 L. Ed. 2d 688 (1975), the United States Supreme Court held that if a classification is to withstand an equal protection analysis, it must be reasonable, not arbitrary, and must rest on some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons in a similar position would be treated essentially the same.
"The August 29, 1972, Resolution was premised on the fact that the Barbour County Commission had determined that it was desirable for the public employees of the Barbour County Commission to be covered under a pension plan and further provided that all full-time budgeted employees would be eligible for participation. The resolution excluded certain groups of personnel from receiving the benefits of the pension plan primarily on the basis that the excluded groups contained persons who were not then working for the Barbour County Commission but rather were working for the Tax Assessor and Tax Collector, who were paid on the fee system and who employed their own employees and paid their own employees out of their personal funds. It also appears that an effort was made to allow only those employees who were full-time fully budgeted employees and who received at least a portion of their salaries from the gasoline tax to participate. It is not clear why the Sheriff's Department employees were denied the right to participate since at all times they have been full-time fully budgeted employees of the Barbour County Commission unless it was solely because no portion of the Sheriff's employees' salaries came from the gasoline tax. The Board of Education employees were then and are now covered by the State Education Retirement Program. The Judge of Probate is still on the fee system and pays his own employees and *498 thus those employees, with the exception of the Chief Clerk in the Clayton Office, are not employees of the Barbour County Commission. The Juvenile Probation Office was not in existence at the time of the 1972 Resolution but all employees in this office have been fully budgeted full-time employees of the Barbour County Commission since the office was created in 1976. The Circuit Clerk and his employees, as well as the Judges of Court, are now State employees and as such are covered by the State Judicial Retirement Act. The employees of the Tax Collector's and Tax Assessor's Office[s] became employees of the Barbour County Commission assigned to work in the Tax Collector's and the Tax Assessor's offices in a full-time fully budgeted position as of October 1, 1982.
"The Court is of the opinion that the County's attempt to justify the unequal treatment of various of its employees as to pension benefits is unreasonable and results in the Plaintiff employees' rights to due process and equal protection being violated. The 1972 Legislative Resolution which created the `included' and `excluded' classifications, made no provision for any change in circumstances such as occurred when the Tax Collector's and Tax Assessor's employees legislatively were changed from being personal employees of the elected officials to being full-time budgeted employees of the Barbour County Commission. Likewise the resolution did not contemplate the creation of new departments such as the Juvenile Probation Office.
"The Court also finds that there is no logical and reasonable distinction between work performed by secretaries and clerks in the Tax Assessor's, Tax Collector's, and Juvenile Probation Office who are not covered and secretaries and clerks who work in the Engineer's and County Commission Office who are covered. All of said employees are hired solely upon the approval of the County Commission, are covered by the same Employees' Guidebook, work only on County property, and have the same paid holiday schedules.
"The Court finds that since the 1972 Resolution did not specifically exclude the Juvenile Probation employees, said employees who were full-time fully budgeted employees of the Barbour County Commission were automatically eligible to participate in the pension plan on the date they were hired because all present and future employees in this office meet the express requirements of the resolution as of the day the office was created in 1976.
"The Court finds that the Barbour County Commission has consistently ignored the criteria established in the 1972 Resolution since its inception by allowing the various County part-time attorneys and county commissioners to immediately participate in the County pension plan in violation of the express language of the Resolution. Also, there is nothing in the record to show that the part-time attorneys and county commissioners were partially paid from the gasoline fund, which seems to have been a `loose' criterion in 1972. Therefore, the Court rules that since the Barbour County Commission has from its inception in 1972 accorded pension benefits to the part-time county commissioners and county attorneys, and since the gasoline tax distinction is no longer relevant, it is constitutionally impermissible for the Barbour County Commission to discriminate against members of the Sheriff's Department who were full-time budgeted employees in 1972 by denying to them the right to participate in the pension program.
"The Court finds that the 1972 Resolution failed to meet the criteria set out in Woco Pep Co. of Montgomery v. City of Montgomery, supra, in that it did not bring within its influence all who were under the same conditions and did not apply equally to each member person of the class or each person or member who may become a member of the class and likewise did not provide for proper additions to be made when circumstances changed. The Court finds that the attempted classifications were not based on substantial distinctions between the employees in one office and the employees in the next office. Under the facts of this case as contained in the stipulation, the Court is further of [the] opinion that the classifications as applied *499 today are not reasonable and do not achieve the very purposes as set forth in the Resolution, ... to provide all regular full-time budgeted public employees of the Barbour County Commission with the opportunity to be covered under a pension plan.
"The Court was also faced with the issue of deciding whether or not the Barbour County Commission discriminatorily denied medical insurance benefits to some of its employees while granting the same benefits to other similarly situated employees. The Barbour County Commission elected to furnish medical insurance benefits pursuant to Section 11-91-2, Code of Alabama (1975), which specifically provides in Section (b) that as a condition to providing said insurance to County employees, the County must do so in a manner which precludes individual selection by such officers and employees or by the governing body and by further prohibiting any discrimination within any specified class.
"This Court has already held that the attempted classifications were discriminatory. In addition, the Barbour County Commission has crossed its lines of classifications by providing some employees in one office insurance benefits while denying other employees in the same office the same insurance benefits. For example, generally the employees of the Tax Assessor and Tax Collector's office[s] aren't afforded insurance benefits but Bob Bradley, an employee in the Tax Assessor's Office, does have insurance benefits provided to him by the County. The Sheriff's deputies are denied retirement benefits but nevertheless receive insurance benefits. The Chief Clerk in the Clayton Probate Office receives insurance and retirement benefits even though the 1972 Resolution specifically excluded Judge of Probate employees. Some of the County Commission employees who work for the County Clerk receive no insurance benefits while other County Commission employees working for the same Clerk, including the Clerk, do receive insurance benefits. The Clerk for the County Engineer receives insurance benefits. Consequently, the Court is of the opinion that the way in which the Defendant has sought to provide medical insurance benefits pursuant to Section 11-91-1, Code of Alabama 1975, has been arbitrary and capricious and has violated the express provisions of said statute.
"IT IS ACCORDINGLY ORDERED, ADJUDGED and DECREED as follows:
"1. The Plaintiffs who are employees of the Sheriff's Department are entitled to retirement benefits relating back to 1972 or the date of employment, whichever occurred last. The Barbour County Commission is hereby directed to make a contribution to the retirement program in an amount equal to the County's annual contribution for other employees for each calendar year that a Plaintiff who is an employee of the Sheriff's Department is entitled to participate in said program and for which the Plaintiff Sheriff's employee wishes to make the employee's contribution.
"2. The Plaintiff employees of the Tax Assessor and Tax Collector's Office[s] are entitled to retirement benefits dating from October 1, 1982. The Barbour County Commission is hereby directed to make a contribution to the retirement program in an amount equal to the County's annual contribution for other employees for each calendar year that a Plaintiff who is an employee of the Tax Assessor and Tax Collector Department is entitled to participate in said program and for which the Plaintiff Tax Assessor and Tax Collector employee wishes to make the employee's contribution.
"3. The employees in the Juvenile Probation Office are entitled to retirement benefits from their date of employment. The Barbour County Commission is hereby directed to make a contribution to the retirement program in an amount equal to the County's annual contribution for other employees for each year that a Plaintiff who is a member of the Juvenile Probation Office Department is entitled to participate in said program and for which the Plaintiff Juvenile Probation Office's employee wishes to make the employee's contribution.
*500 "4. Each of the Plaintiff employees who [is] not presently receiving medical insurance benefits [is] entitled to receive immediate medical insurance benefits equal to the medical insurance benefits accorded to other full-time fully budgeted employees of the Barbour County Commission. The Barbour County Commission is hereby directed to take such steps as are necessary to enroll each Plaintiff not already receiving said medical insurance benefits in the County medical insurance program and to pay for said medical insurance benefits in the same manner as it pays for other fulltime fully budgeted employees.
"5. All costs of this action are taxed against the Defendant, for which let execution issue.
"DONE and ORDERED this the 30th day of Nov. 1989.
We agree with the analysis and holding of the trial court on each point, and we adopt the trial court's opinion as our own. It follows that the judgment of the trial court is due to be, and it is hereby, affirmed.
AFFIRMED.
MADDOX, JONES, ALMON, ADAMS, STEAGALL and KENNEDY, JJ., concur. | August 3, 1990 |
a8b2e9b9-7743-42b1-a224-a5f5ac956fc0 | Tittle v. Alabama Power Co. | 570 So. 2d 601 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 601 (1990)
Jessie Leon TITTLE
v.
ALABAMA POWER COMPANY.
88-1654.
Supreme Court of Alabama.
September 7, 1990.
Rehearing Denied November 9, 1990.
*602 Jeffrey W. Bennitt and John F. Kizer, Jr., Birmingham, for appellant.
S. Allen Baker, Jr. of Balch & Bingham, Birmingham, for appellee.
ALMON, Justice.
This is a premises owner liability case in which a summary judgment was entered in favor of the defendant, Alabama Power Company.[1]
*603 Alabama Power contracted with Combustion Engineering, Inc., and other contractors in the spring of 1985 for maintenance work at Alabama Power's Gorgas steam plant during a scheduled maintenance outage. Tittle, an ironworker, was hired by Combustion Engineering to work on that job. While working at the plant Tittle allegedly slipped on insulation dust that was on the plant floor and fell, injuring his neck and back. He later filed an action against Alabama Power and the insulation contractor.[2] Tittle alleged that Alabama Power exercised the right to control the employees of Combustion Engineering on the job site and therefore had a duty to ensure that he had a safe workplace. He alleged that Alabama Power breached its duty by allowing the insulation dust to remain on the floor and thereby proximately caused his fall.
Alabama Power filed a motion for summary judgment, stating that it was merely the premises owner and therefore was under no duty to provide Tittle with a safe workplace. Alabama Power contended that the contract between it and Combustion Engineering made the latter responsible for the safety of its own employees, and Alabama Power denied that it retained or exercised any right of control over the manner in which Combustion Engineering's employees performed their work. The trial court granted Alabama Power's motion, and Tittle appeals. He argues that he presented evidence showing that Alabama Power exercised control over the manner in which Combustion Engineering's employees worked, thereby incurring the responsibility for providing him with a safe workplace.
The general rule regarding the duty owed by premises owners to independent contractors and their employees is settled:
Weeks v. Alabama Electric Cooperative, Inc., 419 So. 2d 1381, 1383 (Ala.1982) (emphasis in original).
In this case the contract between Alabama Power and Combustion Engineering unambiguously assigned the duty of supervising Combustion Engineering's employees to that company. However, this Court's inquiry does not end after examining the contract between the parties; their conduct must also be considered. Alabama Power had a number of "area coordinators" present on the job site to see that the contractors were performing their work in compliance with the specifications in the contracts. Those coordinators were supervised by Steve Ferguson, the assistant maintenance superintendent in charge of the outage at the Gorgas plant. This Court, recognizing that ensuring such compliance is a legitimate concern for the premises owner, has held that this type of supervision does not create a master and servant relationship. Weeks, supra; Pate v. United States Steel Corp., 393 So. 2d 992, 995 (Ala.1981). However, the scope of supervision that can be exercised is limited *604 to protecting the owner's interest in seeing that the results contemplated by the contract are achieved. Id.
If the premises owner exercises control over the means and manner in which the work is performed, the owner-independent contractor relationship is converted to that of master and servant, because an independent contractor relationship exists only if the person doing the work and said to be the independent contractor is subject to the will of his employer, i.e., the person for whom he has contracted to do the work, only as to the result, but not as to the manner of achieving that result. Sawyer v. Chevron USA, Inc., 421 So. 2d 1263 (Ala. 1982); 41 Am.Jur.2d Independent Contractor § 8, at 751-52 (1968).
Tittle's motion in opposition to Alabama Power's motion for summary judgment was supported by affidavits by Tittle and Thurman Nichols, his foreman. In those affidavits both men stated that Alabama Power employees gave instructions to Combustion Engineering employees regarding how to perform their work. Alabama Power filed a motion to strike those affidavits, arguing that they contradicted earlier deposition testimony by Tittle and Nichols and for that reason could not be used to create a question of fact to defeat its motion for summary judgment. The court ruled that motion moot on the same day it entered summary judgment for Alabama Power. Tittle argues that the affidavits, together with other evidence, provided a proper basis for denying summary judgment.
This Court has held that when a party to an action has given clear answers to unambiguous questions that negate the existence of any genuine issue of fact, that party cannot later create an issue of fact by submitting an affidavit that directly contradicts, without explanation, that earlier testimony. That rule is based on the concern that such an affidavit might be a sham. Robinson v. Hank Roberts, Inc., 514 So. 2d 958, 961 (Ala.1987); Lady Corinne Trawlers v. Zurich Ins. Co., 507 So. 2d 915, 917-18 (Ala.1987); See also Van T. Junkins & Associates, Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984).
Nichols was not a party to this action, and to date this Court has applied the rule stated in Robinson and Lady Corinne Trawlers only to parties, recognizing the motivation they might have to fabricate a sham affidavit. There is no reason to assume that disinterested third parties possess the same motive, and thus, the logic that supports the application of the rule to parties is not present. Even assuming that the rule could be applied to affidavits of non-parties in some instances, it is not applicable here, because Nichols's affidavit did not contradict clear answers to unambiguous questions in his deposition.
Alabama Power cites the following two questions and answers from Nichols's deposition:
It says that Nichols contradicted these answers by stating in his affidavit that Alabama Power employees would stop work in progress and direct that it be done another way.
The alleged contradiction diminishes to insignificance for purposes of the above-cited rule, however, when the deposition answers are considered in context and the affidavit is examined. The pertinent portion of the deposition reads:
(Emphasis added.)
Thus, Nichols stated in his deposition that he did not personally receive orders directly from Alabama Power employees and that he was not aware of such orders having been given directly to his crew, but that Alabama Power employees had directed Combustion Engineering's superintendent, Jeff Jeffers, in the manner of performance. These statements were not contradicted in his affidavit, which reads:
(Emphasis in original.)
Nichols's affidavit was substantially consistent with his deposition testimony. Any inconsistencies between the two are not the sort of simple, direct contradiction regarding a material question of fact that has been held to preclude a party from defeating summary judgment solely by his own affidavit.
Nor is Tittle's affidavit due to be excluded, because no material contradictions *607 exist between his deposition testimony and his affidavit. Tittle gave the following responses during his deposition:
(Emphasis added.) Tittle stated the following in his affidavit:
(Emphasis added.) Because Tittle had limited his deposition responses to orders that were given directly to him, his affidavit did not directly contradict that testimony. Therefore, Alabama Power's motion to strike the affidavits was due to be denied. Robinson, supra; Lady Corinne Trawlers, supra.
Alabama Power argues that Tittle's and Nichols's affidavits provided only examples of attempts by Alabama Power employees to supervise progress or to stop unsafe acts on the job site, which, it argues, a premises owner may do without assuming a duty to ensure the safety of the independent contractor's employees. It argues that three decisions of this Court, Pugh v. Butler Telephone Co., 512 So. 2d 1317 (Ala. 1987); Columbia Engineering Int'l, Ltd. v. Espey, 429 So. 2d 955 (Ala.1983); and Pate v. United States Steel Corp., supra, support that contention.
Pugh, Espey, and Pate did not concern an affirmative act of control or undertaking to provide a safe workplace by the defendant premises owner. In Pugh, this Court held that "There is no evidence in the record that [the premises owner] exercised any control or retained any right of control over the manner in which [the contractor] performed any of its work on the project." 512 So. 2d at 1319. The Court also held that a contract between the owner and an engineer did not impose on either a duty of safety toward employees of the independent contractor. Id., at 1319-20. In Espey this Court found that there was no evidence that the defendant had voluntarily undertaken to ensure the plaintiff's safety. 429 So. 2d at 967. As in Pugh, the defendant in Espey had a contractual right to enforce safety, but took no affirmative steps to exercise that right. Id. Similarly, in Pate, the owner had a contractual right to make safety inspections, but never exercised that right. In the absence of an affirmative act by the owner, this Court found no duty. 393 So. 2d at 996.
*608 The instant case is distinguishable from those three cases. There was evidence, cited above, tending to show that Alabama Power exercised the right to oversee safety and to correct hazardous conditions and that Alabama Power also took affirmative steps to control the contractors' work, thereby crossing the line from guaranteeing compliance with the contract into determining the means and manner in which Combustion Engineering performed its work.
In addition to Nichols's statements of extensive control and Tittle's statements that Alabama Power employees instructed his crew to perform their job more safely by covering insulation with a fire retardant blanket and instructed them on how to use and store a welding torch, there was other evidence tending to show that Alabama Power exercised control over the manner in which, and the means by which, Combustion Engineering's employees worked. For example, Steve Ferguson, the Alabama Power employee in charge of the maintenance outage, testified that Alabama Power reserved the right to bring unsafe work conditions to the contractor's attention and to stop work if it was necessary to do so in order to ensure safety.
Tittle testified in deposition that he had on several occasions seen an Alabama Power employee sweeping up insulation dust like that that he allegedly slipped on. There was evidence from the depositions of Ferguson, Tittle, and Nichols that Alabama Power employees often told the contractors' supervisors to interrupt their work and move to another job site. Most pertinently, there was evidence that on the evening before Tittle's accident, the insulation contractor's employees had been working on the site where he was injured; that they had gone to another site on the morning of the accident, inferentially at Alabama Power's direction; and that neither the insulation contractor nor Alabama Power had cleaned the site before Tittle was injured about 10 o'clock in the morning. Thus, there was at least a scintilla of evidence that Alabama Power either was negligent in not cleaning the area itself after having assumed a duty to do so or exercised control over the manner in which the contractors performed their work and failed to provide a safe place to work by allowing or directing the insulation contractor to move from one job area to another without requiring the contractor to clean the first area.
The degree of control exercised by Alabama Power as suggested by the record in this case is similar to that held sufficient to impose on the premises owner the duty to provide a safe workplace in Miller v. Degussa Corp., 549 So. 2d 454 (Ala. 1989); see, also, Alabama Power Co. v. Jarman, 549 So. 2d 7 (Ala.1989); Alabama Power Co. v. Beam, 472 So. 2d 619 (Ala.1985); Alabama Power Co. v. Henderson, 342 So. 2d 323 (Ala.1976).
After reviewing the record in a light most favorable to the non-movant and resolving all reasonable doubts against the movant, as we must do when reviewing a summary judgment, Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986), we hold that there was a scintilla of evidence supporting Tittle's claim that Alabama Power reserved or exercised the right to control the manner of performance by the contractors and therefore had a duty to provide a safe workplace, and that it proximately caused his injuries by breaching that duty. Therefore, summary judgment was improper. The judgment is reversed and the cause is remanded to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX and ADAMS, JJ., concur.
STEAGALL, J., concurs in the result.
[1] Tittle's complaint was filed before June 11, 1987, and is therefore reviewed under the "scintilla rule." Ala.Code 1975, § 12-21-12 (Supp. 1988).
[2] The insulation contractor is not a party to this appeal. | September 7, 1990 |
70f593cf-8111-43ca-9229-5a85ede4e0cb | Isler v. Federated Guaranty Mut. Ins. Co. | 567 So. 2d 1264 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1264 (1990)
Paul ISLER
v.
FEDERATED GUARANTY MUTUAL INSURANCE COMPANY.
89-216.
Supreme Court of Alabama.
August 31, 1990.
John E. Byrd of Byrd & Spencer, Dothan, for appellant.
William L. Lee III of Lee & McInish, Dothan, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment in favor of Federated Guaranty Mutual *1265 Insurance Company ("Federated") on a claim for uninsured motorist benefits.
On October 9, 1985, Paul Isler was a passenger in a vehicle owned by his employer, Palmer Electric Company, and insured by Reliance Insurance Company ("Reliance"). This vehicle collided with an automobile driven by John Boatwright; both Isler and Boatwright were injured. On October 6, 1987, Isler filed an action against Boatwright, Reliance, and Federated, Isler's personal insurance company, for damages to compensate for injuries and expenses incurred as a result of the accident. Both the Reliance policy and the Federated policy contained uninsured motorist provisions. Isler alleged that Boatwright was an underinsured motorist.
Boatwright died as a result of injuries received in the accident. On October 5, 1988, Isler received a settlement of $35,000 from Reliance. On November 29, 1988, Isler settled his action against Boatwright's estate for approximately $20,000, apparently the limits of Boatwright's liability insurance, and executed a pro tanto release. Both Boatwright's estate and Reliance were dismissed with prejudice by the court on Isler's motion, leaving only the action against Federated pending. Federated filed a motion for summary judgment, pursuant to Rule 56, Ala.R.Civ.P., attaching the affidavit of Tanya Clemon, Reliance's claims representative, in support of its motion. In that affidavit, Clemon stated that Reliance's uninsured motorist coverage was $20,000, but that through "stacking" of coverages there was a total of $60,000 available to Isler. Based on those statements, Federated argued that because only $35,000 was paid to Isler, Isler did not exhaust Reliance's coverage and that Federated, being only secondarily liable, is not obligated to pay. Isler filed an affidavit in opposition to Federated's motion for summary judgment, stating that Clemon had told him that Reliance was obligated to pay him only $20,000 because he was a passenger in the vehicle and, therefore, was not entitled to stack insurance coverage. The trial court granted Federated's motion and entered a summary judgment.
Federated asserts that it has only a secondary obligation to Isler, which is activated only when Reliance's primary obligation is fully expended. The Federated policy is not in the record, however, so there is no basis on which to conclude that Federated's coverage is secondary to Reliance's. The determination of which insurance coverage is primary and which, if any, is secondary is dependent upon the exact language of each policy. See Gaught v. Evans, 361 So. 2d 1027 (Ala.1978); Protective National Ins. Co. of Omaha v. Bell, 361 So. 2d 1058 (Ala.1978).
Because Federated's policy was not introduced in support of its motion for summary judgment, the motion should not have been granted. The judgment is therefore reversed and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | August 31, 1990 |
7951a893-9d92-4575-9499-3141db61a03e | Shumaker v. Johnson | 571 So. 2d 991 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 991 (1990)
Janet SHUMAKER
v.
Dr. Kraig JOHNSON and Dr. Harlan Radue.
88-1293.
Supreme Court of Alabama.
July 27, 1990.
Rehearing Denied December 14, 1990.
Stephen D. Heninger of Heninger, Burge & Vargo, Birmingham, for appellant.
Larry W. Harper of Porterfield, Bainbridge, Mims, Harper & Mills, Birmingham, for appellees.
HORNSBY, Chief Justice.
Janet Shumaker appeals from an adverse judgment based on a jury verdict in her medical malpractice action against Dr. Kraig Johnson, a medical doctor, and Dr. Harlan Radue, a chiropractor. The sole issue raised by Shumaker concerns the propriety of certain jury instructions regarding *992 Dr. Johnson's good faith in choosing among alternative treatment methods. Although Dr. Radue was a named defendant in the case at trial, the issues addressed in this appeal do not involve him. Because we agree with Shumaker's contention, we reverse and remand this cause for further proceedings consistent with this opinion.
Ms. Shumaker, who was 32 years old at the time, saw Radue on October 6, 1984. Testimony in the record indicates that Shumaker had been suffering back spasms and had sought out Radue for treatment. Shumaker underwent a spinal manipulation administered by Radue. However, when Shumaker returned to work she began to experience numbness and weakness in both legs and could not stand or support any weight on either foot. She was transported to the emergency room at Brookwood Hospital in Birmingham.
Shumaker was seen initially at the emergency room by a nurse Embry, who took a "patient history" from Shumaker. The record indicates that Shumaker described her condition to nurse Embry and that Embry made notes on a printed form used in the patient admission process for emergency room cases. The record indicates that the admission form prepared by Embry notes that the "chief complaint" from Shumaker was that her legs were numb. The record also indicates that other parts of the admission form prepared by Embry disclosed that Shumaker was experiencing numbness from the waist down and that she was unable to stand or to support any weight on her feet.
Testimony from Dr. Johnson indicates that after Embry finished with the initial examination of Shumaker, he personally entered the room with Shumaker and did his own physical examination to determine Shumaker's condition. Johnson testified that he found numbness in both of Shumaker's legs. He stated that he found that Shumaker suffered decreased sensation in her right thigh and that this condition was constant. However, he also stated that he determined that Shumaker suffered decreased sensation in her left thigh but that this condition was not constant.
In response to questions, Johnson testified that he performed sensation tests and reflex tests upon Shumaker. Johnson stated that he performed both patellar reflex (knee and hammer) tests and Achilles tendon reflex tests on Shumaker and that he recorded normal reflexes as a result of these tests. Johnson also stated that he performed strength tests in which he had Shumaker push against his hands. It was disputed as to whether she was actually able to push against his hands with any strength; however, Johnson stated that his recollection was that Shumaker was able to do so but that the exertion was painful for her.
Johnson also ordered X-rays of Shumaker's spine. Johnson reviewed the X-rays and found no apparent injury to the spinal cord. A radiologist who later viewed those same X-rays concurred in that diagnosis.
The record indicates that nurse Embry examined Shumaker a second time just before her release and noted a further decrease in sensation in her legs. Johnson admitted that Embry reported this condition to him just prior to his ordering Shumaker to be discharged from the emergency room. Despite this most recent report of further decreased sensation in Shumaker's legs, Johnson ordered that Shumaker be discharged and told her to go home. However, as Shumaker was getting off the examination table upon which she was lying, her back "popped," causing such an injury that she has been a paraplegic since that time.
Evidence in the record indicates that Johnson suspected that Shumaker had suffered a spinal cord injury from the time of his initial examination. He stated that the proper procedure for evaluating a possible spinal cord injury would be to first immobilize the patient, in order to decrease the possibility of further injury or damage to the spinal cord. Johnson admitted that it would be below the appropriate standard of care expected of a physician if he suspected spinal cord injury and failed to immobilize the patient. Johnson's statement that immobilization *993 would be proper where spinal cord involvement or injury was suspected was corroborated by other testimony in the record. Shumaker was not immobilized at any time during her treatment by Johnson. Moreover, even though the record indicates that Johnson suspected spinal cord involvement in this case, he failed to order diagnostic tests, such as a CAT scan or a myelogram, that would reveal possible spinal cord involvement.
The jury returned a verdict in favor of Johnson. Shumaker appeals from the judgment based on that verdict, contending that the "good faith error" jury charge was improper and should not have been given to the jury. That is the only issue raised for our review on appeal.
The trial court gave the following jury charge:
Shumaker contends that this jury charge should not be allowed in medical malpractice cases because it tends to confuse the jury. She contends that the charge implies that the doctor must "in bad faith" commit an error or omission that causes the plaintiff injury. Additionally, she contends that the charge denies plaintiffs in medical malpractice cases equal protection of the law because only doctors, among professionals, are entitled to the "good faith error" charge.
The propriety of allowing jury charges similar to the one involved in this case in medical malpractice cases has been the subject of comment. See Sasser v. Connery, 565 So. 2d 50 (Ala.1990) (Hornsby, C.J., concurring specially). In Sasser, this particular issue was not discussed by the majority. However, in this case, the issue is squarely presented for our review.
Initially, we note that the legislature has codified the standard of care to be exercised by physicians in this state. Code 1975, § 6-5-484, provides as follows:
This statutory standard is clear and unambiguous. There is no mention of the physician's "good faith" in the performance of his professional duties. The Code section clearly states an objective standard for the performance of professional duties by physicians. Cf. Somer v. Johnson, 704 F.2d 1473 (11th Cir.1983) (holding that "honest error" jury charge does not correctly state the standard of care required of physicians by Fla.Stat.Ann. § 768.40 et seq.).
The jury charge at issue in this case had its genesis in the case of Robinson v. Crotwell, 175 Ala. 194, 57 So. 23 (1911). Robinson disallowed a charge stating that the jury could not find for the plaintiff if the defendant doctor committed a "mere error of judgment" but gave the plaintiff the benefit of his "best judgment." Id., 175 Ala. at 203-04, 57 So. at 24-25. The charge given in Robinson was not exactly the same as the one given in this case. The problem with the Robinson instruction was that it required no care of doctors at all, while the charge given in this case did require a doctor to meet a standard of care. However, since the Robinson decision, the "honest mistake" rule has been followed in this state. See, e.g., Otwell v. Bryant, 497 So. 2d 111 (Ala.1986); Moses v. Gaba, 435 So. 2d 58 (Ala.1983); Riddlesperger v. United *994 States, 406 F. Supp. 617 (N.D.Ala.1976) (applying Alabama law); Piper v. Halford, 247 Ala. 530, 25 So. 2d 264 (1946); Ingram v. Harris, 244 Ala. 246, 13 So. 2d 48 (1943).
However, we note that a growing number of jurisdictions have abandoned the "good faith" rule in recent years. See, e.g., Rogers v. Meridian Park Hospital, 307 Or. 612, 772 P.2d 929 (1989) (disapproved where differing treatment choices are possible); Kobos v. Everts, 768 P.2d 534 (Wyo.1989) ("honest error" language in jury charge does not address legal standard of care but merely speaks to a moral duty); Ouellette v. Subak, 391 N.W.2d 810 (Minn.1986) ("Upon reflection we now conclude the time has come to hold that in professional malpractice cases the mostly subjective `honest error in judgment' language is inappropriate in defining the scope of the professional's duty"); Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986) (standard of care for doctors is the same as that for other professionals, and good faith or bad faith in deviation from the standard is irrelevant); Watson v. Hockett, 107 Wash. 2d 158, 727 P.2d 669 (1986) (use of word "honest" imparts argumentative aspect to jury charges on standard of care); Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984) (holding that "honest error" charge is potentially confusing when made part of jury charge on standard of care); Teh Len Chu v. Fairfax Emergency Medical Associates, 223 Va. 383, 290 S.E.2d 820 (1982) (terms such as "bona fide error" or "honest mistake" have no place in instructions dealing with negligence in medical malpractice actions); Veliz v. American Hosp., Inc., 414 So. 2d 226 (Fla.Dist.Ct.App.), rev. denied, 424 So. 2d 760 (Fla.1982) (holding that an honest error charge in nurse's negligence case is potentially confusing to jury).
It has been noted:
"191 Conn. at 299, 465 A.2d at 303.
Sasser v. Connery, 565 So. 2d 50, 53 (Ala. 1990) (Hornsby, C.J., concurring specially).
This Court now holds that the "good-faith error" jury charge should not be given in medical malpractice cases because of its potential for confusing the jury. It can not be reasonably argued that it is not potentially confusing. However, we do not create in this case a rule that would make physicians insurers of their patients' successful treatment. Neither do we hold that a physician guarantees the successful outcome of treatment or guarantees recovery in a given case. We merely hold that jury instructions concerning the standard of care expected of a physician must not include language that would absolve a defendant from liability for having made an "honest mistake," a "bona fide error," or a "good faith error." Negligence that results in injury should support a finding of liability by a jury regardless of whether the act or omission giving rise to the injury was caused by an "honest error in judgment."
*995 Because we hold that the "honest error in judgment" or "honest mistake" charge is potentially confusing and therefore objectionable, we pretermit discussion of whether such a charge denies plaintiffs in medical malpractice cases equal protection of the law. The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and KENNEDY, JJ., concur.
MADDOX, HOUSTON and STEAGALL, JJ., dissent.
MADDOX, Justice (dissenting).
In 1986, this Court, in Otwell v. Bryant, 497 So. 2d 111 (Ala.1986), held that a "mistake in judgment" instruction was not prejudicial error. The Code section cited and relied upon by the majority was adopted in 1975 and was in the Code at the time of Otwell v. Bryant.
Although, at first blush, it appears that the instruction could be misleading, upon reflection I conclude that it is a correct statement of the law when professionals are charged with malpractice.
For example, a lawyer who makes a judgment call in settling a case, or in taking one juror over another, should not be liable simply because the course chosen through the exercise of his professional judgment turned out to be "wrong," i.e., while professionally acceptable conduct, nevertheless turned out to produce a result less desirable than another course would have produced.
STEAGALL, J., concurs.
HOUSTON, Justice (dissenting).
I quote the pertinent portion of the trial court's charge to the jury to show that it can be reasonably argued that the trial court's charge in this case could not have confused the jury:
I am not averse to abandoning or revisiting the use of the "honest mistake" or "honest error of judgment" words in a jury charge except (1) for the fact that we are departing from the doctrine of stare decisis, (2) for the reasons stated in Justice Maddox's dissent in this case, and (3) because the "honest mistake/error in judgment" charge is needed to explain the connection between Ala.Code 1975, § 6-5-484(a) (physician's standard of care) and § 6-5-484(b) (not "an insurer of successful issue of treatment or service"). I am not convinced that the existing rule of law (Otwell v. Bryant, 497 So. 2d 111 (Ala. 1986)) would not be consented to today by the conscience and feeling of justice of the majority of Alabamians whose obedience is required by that rule of law. I have determined that it is only in those cases where I think the majority would not so consent that I will depart from the doctrine of stare decisis, see Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1093 (Ala.1989) (Houston, J., concurring specially), "to the end that [the government of this state] may be a government of laws and not of men." Article III, § 43, Constitution of Alabama of 1901.
However, even if we change the law, as we evidently are doing in this case, I do not believe that the trial court's entire charge, as set out above, could have prejudiced the appellant's rights. The entire charge was as clear as clear can be, unless one is like the Francophile who would translate and transpose Antoine DeRivard's "Ce qui n'est pas clair n'est pas francais," Discours sur 1'Universalite de la Langue Francaise (1784), to "What is not French is not clear."
Our standard of review requires that we review the entire charge to determine if there is reversible error. Treadway v. Brantley, 437 So. 2d 93 (Ala.1983); Wright v. Rowland, 406 So. 2d 830 (Ala.1981); Nelms v. Allied Mills Co., 387 So. 2d 152 (Ala.1980). Rule 45 of the Rules of Appellate Procedure provides:
It gives very little credit to the jury system and even less to this particular jury's intelligence to say that the jury would interpret the words "good faith" and "honest error in judgment," as those words were used in the trial court's charge set out above, to mean that a physician cannot be liable if he was acting in good faith toward the patient.
I am reminded of the discussions that occurred at our constitutional convention (see Official Proceedings of the State of Alabama Constitutional Convention of 1901, Vol. II), when there was an attempt to change what is now Article I, Sec. 11, of the Constitution ("That the right to trial by jury shall remain inviolate"), which had been Article I, Sec. 12, Constitution of Alabama 1875. The proposed language was "The right of trial by jury shall be secured to all and remain inviolate; but in civil actions three-fourths of the jury may render a verdict." While all of those great men in the convention argued for the right to trial by jury, some insisted that it was necessary for the verdict to be unanimous because only 2 or 3 of the 12 jurors would be able to understand what was going on and others argued that three-fourths of the jury should render a verdict because it would be easy to bribe 1 of the 12. The *997 inviolate right to trial by jury should require the judiciary's respect for the intelligence and integrity of the jury.
I have been privileged to serve on a petit jury while serving as a Justice of this Court, and I have an even greater appreciation for the jury system for having done so. | July 27, 1990 |
40c044ce-0944-46ad-b9ad-f0a660f908e1 | MASSACHUSETTS MUT. LIFE INS. v. Collins | 575 So. 2d 1005 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 1005 (1990)
MASSACHUSETTS MUTUAL LIFE INSURANCE CO.
v.
William E. COLLINS.
88-949.
Supreme Court of Alabama.
July 20, 1990.
*1006 Charles D. Stewart and Betsy P. Collins of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellant.
William H. Atkinson, John H. Bentley and William Todd Atkinson of Fite, Davis, Atkinson and Bentley, Hamilton, for appellee.
PER CURIAM.
The plaintiff, Eddie Collins, sued Massachusetts Mutual Life Insurance Company for fraud, conspiracy to defraud, outrage, and fraudulent representations, all arising from the sale of an insurance policy. The jury returned a $750,000 verdict in favor of Collins; the trial court entered a judgment based on that verdict; and Massachusetts Mutual appeals.
Eddie Collins obtained a $15,000 whole life policy from Massachusetts Mutual in 1967, when he was 19 years old (policy # 1). He timely paid the monthly premium of $19.51 over the years. In May 1983, Collins was approached by a Massachusetts Mutual agent, Tom Smart, regarding the purchase of additional life insurance. Policy # 1 had an accumulated cash value of between $1,500 and $1,800 at that time.
Smart sent Collins a letter on May 9, outlining the proposed "update" program formulated by Smart for Collins (policy # 2). This "update" program proposed that Collins purchase additional coverage in the amount of $85,000, increasing his total coverage to $100,000. The $1,307.55 annual premium for policy # 2 was to be paid out of the dividends from policy # 1 and policy # 2 as well as out of loans drawn against the cash value of policy # 1. Collins contends that he was unaware that the accumulated cash value of policy # 1 would be used to fund policy # 2. This fact is the heart of the alleged fraud. In his letter, Smart represented to Collins that no additional premiums would be needed to fund policy # 2.
Smart met Collins for lunch at some point after the May 9 letter had been *1007 mailed. Collins brought along as an advisor Zadus Turner, an independent insurance agent who was an old friend of Collins. At this luncheon meeting, Smart produced spread sheets outlining the payment schedule for policy # 2. Collins decided to purchase the additional coverage.
In June 1984, Collins received a bill for the premium on the new policy. Collins contacted Smart because, he says, he had thought that he would not need to make additional premium payments on policy # 2. Smart sent Collins a form on June 18 that was captioned "Loan Certificate." Along with the form, Smart included a letter that stated that policy # 1 was being "leveraged" to cover the premium for policy # 2 and that "we are merely leveraging against future dividends." Collins completed the "Loan Certificate" and returned it to Massachusetts Mutual. This entire procedure was repeated in 1985. Massachusetts Mutual agent Smart died shortly after the form was returned in 1985.
Upon receiving a bill for the premium on policy # 2 in June 1986, Collins contacted a representative of Massachusetts Mutual, who explained that policy # 2 was being funded by a series of loans against the cash value of policy # 1. Collins sued Massachusetts Mutual.
Massachusetts Mutual makes several allegations of error.
Massachusetts Mutual argues that Collins's action was barred by the two-year statute of limitations. Code of Ala. 1975, § 6-2-3, provides:
Massachusetts Mutual contends that Collins knew or should have discovered the underlying facts constituting the alleged fraud at the time that the first loan certificate was issued in June 1984, over two years before suit was filed. It argues that Collins signed a form captioned "Loan Certificate," that the loan certificate was unambiguous, and that the word "loan" appeared 11 times in the document. Massachusetts Mutual contends that by virtue of having executed the loan certificate Collins was put on notice as early as June 1984 that the cash value of policy # 1 was being used as collateral to finance policy # 2.
Facts constituting fraud are considered discovered when they actually have been discovered or when they should have been discovered. Gonzales v. U-J Chevrolet Co., 451 So. 2d 244 (Ala.1984). It is ordinarily a jury question whether a party discovered or should have discovered a fraud earlier than the date claimed.[1]Ratledge v. H & W, Inc., 435 So. 2d 7 (Ala. 1983).
Collins contends that he was misled by Smart into believing that the loan certificate applied only to the dividends. Collins testified that Smart repeatedly assured him that only dividends were leveraged, and that dividend leveraging was referred to in the May 9 letter from Smart to Collins.
In view of these facts, we believe that Collins presented at least a scintilla of evidence that he did not have notice of the fraud in June 1984. Therefore, the question of the time at which Collins should have discovered the fraud was properly before the jury.
Massachusetts Mutual argues that Collins was improperly allowed to introduce into evidence a letter from Smart to a third party. The letter was sent by Smart to Bill Fishburne, who was advising his law partner, Charles Sharp, regarding the purchase of life insurance. Smart was attempting to *1008 sell to Sharp a plan similar to the one he had sold to Collins. Although the letter used no names, Smart related the details of a plan that had been sold to another person. This other person was described as a 35-year old male non-smoker, with an existing $15,000 policy purchased by him at age 19 for a monthly premium of $19.51. The letter also stated that this person had purchased $85,000 of additional coverage. An employee of Massachusetts Mutual acknowledged that Collins was the only one of Smart's customers who fit the profile described in the letter.
The letter went on to describe the "dividend averaging" concept as well as the "dividend leveraging" concept at issue here. Massachusetts Mutual argues that the letter was irrelevant because it was sent to a third party. We cannot agree. Under the particular facts of this case, we believe that there was evidence presented from which the trial court could have determined that the letter was relevant. Not only did the profile match Collins perfectly, but also a Massachusetts Mutual employee acknowledged that Collins was the only one of Smart's customers who matched the profile. "Questions of materiality, relevancy, and remoteness rest largely with the trial judge, and his rulings must not be disturbed unless his discretion has been grossly abused." Ryan v. Acuff, 435 So. 2d 1244, 1250 (Ala.1983).
We hold that the trial judge did not abuse his discretion in admitting the letter.
Massachusetts Mutual also argues that the trial court erred in allowing Sharp to testify concerning his transactions with Smart. Massachusetts Mutual first argues that Sharp's testimony is barred by the Dead Man's Statute. We disagree. In order for the Dead Man's Statute to apply and render a witness's testimony incompetent, four criteria must be met: (1) The testimony must concern a statement by or a transaction with a deceased person; (2) the estate of this deceased person must be affected by the outcome of the suit, or the deceased person must have acted in a representative relation with the party against whom such testimony is to be introduced; (3) the witness must have a pecuniary interest in the result of the suit; and (4) the interest of the witness must be opposed to the interest of the party against whom he is called to testify. See Melvin v. Parker, 472 So. 2d 1024 (Ala.1985); Stanley v. Hayes, 276 Ala. 532, 165 So. 2d 84 (1964); Ala.Code 1975, § 12-21-163.
Clearly, Sharp's testimony meets criteria (1), (2), and (4). Sharp testified as to statements made by a deceased person. Sharp's testimony was used against a party represented by the deceased, and Sharp's interest is opposed to that of Massachusetts Mutual as evidenced by a separate lawsuit filed by Sharp against Massachusetts Mutual. Criterion (3) is more problematic. Massachusetts Mutual argues that because a similar lawsuit filed by Sharp against Massachusetts Mutual was pending at the time of trial, Sharp had a pecuniary interest in the outcome of this suit. In order for a pecuniary interest to bar testimony, it must be present, certain, and vested, not uncertain, remote, or contingent. City of Rainbow City v. Ramsey, 417 So. 2d 172 (Ala.1982).
Massachusetts Mutual argues that because Sharp's case is pending in the same county, because the same attorneys are representing the parties, and because the case potentially will involve the same judge and witnesses, he has a direct pecuniary interest in the outcome of Collins's case. While we agree that the outcome of Collins's case may have an impact on Sharp's case, we cannot say that such a potential impact is present, certain, and vested. Sharp, therefore, does not have a direct pecuniary interest in the present case that would act to bar his testimony.
Massachusetts Mutual also contends that Sharp's testimony should not have been allowed because his transactions with Smart were significantly dissimilar from Collins's transactions with Smart. In order to admit other false representations in a fraud case, the other representations must be similar in nature to those alleged in the complaint, Sessions Co. v. Turner, *1009 493 So. 2d 1387 (Ala.1986), and the transaction must be of substantially the same character, Great American Ins. Co. v. Dover, 221 Ala. 612, 130 So. 335 (1930). In the present case, Sharp had eight Massachusetts Mutual Life insurance policies with a total face value of $131,000. Sharp's policies were not unencumbered: he had several loans outstanding against their value at the time he was approached by Smart. Sharp also testified that his secretary handled most of the details of the transactions. Massachusetts Mutual argues that these differences between Sharp's situation and Collins's disqualify Sharp from testifying. Collins points out that both Collins and Sharp had been longtime Massachusetts Mutual policyholders and had significant accrued cash values. Both were approached in 1983 by Smart and were sold "update" programs based upon a "stream of dividends." Both were told that they would receive additional insurance with no increase in their monthly premium, and both were shown income projections which later turned out to be false. Based upon this evidence, the trial court did not err in finding that Collins's and Sharp's transactions with Smart were substantially of the same character so as to allow Sharp's testimony. We find no error here.
Massachusetts Mutual also argues that the trial court erred in refusing to admit the May 9 letter from Smart to Collins soliciting his business. Collins's objection to the introduction of the letter was based upon the Dead Man's Statute. Massachusetts Mutual argues, and we agree, that Collins was not in a position to assert the Dead Man's Statute. The Dead Man's Statute provides protection to the decedent's estate or its successors.
§ 12-21-163 (emphasis added).
Although the wording of this section is not completely clear, it is clear enough that the statute is meant to protect the interests of the decedent from the testimony of the living concerning transactions that occurred between the deceased and the witness. In this case, the party, who for all intents and purposes represents the interests of the decedent, seeks to introduce a letter from the deceased to the opposing party.
81 Am.Jur.2d Witnesses § 304 (1976).
Clearly, Collins cannot exclude the letter under the provisions of the Dead Man's Statute; therefore, the trial judge erred in refusing to allow the letter.
While it was error for the trial judge to exclude the letter from evidence, we do not believe that such error requires reversal. The illustrations attached to the letter were the same illustrations attached to the Sharp letter which was properly *1010 introduced into evidence. The text of the letter illustrated both dividend averaging and dividend leveraging. Concerning dividend averaging, the letter stated:
Concerning dividend averaging, the letter provided:
As discussed in part I, it is clear that the jury believed that Collins was misled by Smart.
We hold that the error in failing to permit the introduction of the letter was, at most, harmless error. Rule 45, A.R.App.P.
Massachusetts Mutual contends that the trial court committed error in allowing Collins's counsel to read from documents not in evidence in formulating his questions. Massachusetts Mutual argues that this type of questioning violated the best evidence rule and, in one instance, the Dead Man's Statute.
After reviewing the questions at issue, we are of the opinion that the questions requested information within each witness's personal knowledge. Such questions do not violate the best evidence rule. Cupps v. Upton, 489 So. 2d 544 (Ala.1986).
Massachusetts Mutual also contends that some of the questions asked of Collins violated the Dead Man's Statute. These questions referred to a handwritten note from Smart to Collins that accompanied the loan certificates discussed earlier. Collins claims that Massachusetts Mutual's attorneys, during their cross-examination, opened the door and allowed Collins's attorney to question him on redirect concerning the accompanying note. We agree. The note repeatedly stated that Collins should not be alarmed and that the "game plan [was] intact."
Massachusetts Mutual, by extensively questioning Collins about the loan certificate, opened the door to questions concerning the accompanying note. The Dead Man's Statute is subject to waiver in cases where the deceased party's representative questions a witness concerning his transactions with the deceased. Poston v. Gaddis, 372 So. 2d 1099 (Ala.1979). The trial court did not err on this issue.
Lastly, Massachusetts Mutual argues that the award of $750,000 is excessive. Its contention is that the imposition of punitive damages violates the due process rights embodied in the United States Constitution. This Court dismissed, without discussion, a similar claim in Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989). The United States Supreme Court has granted certiorari in that case.
We note that the trial court applied the guidelines found in Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), and found that the damages award was not excessive. Upon review of the facts of this case, we likewise find that the damage award was not excessive.
Based upon the foregoing, the judgment of the trial judge is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
*1011 HOUSTON, J., concurs specially.
MADDOX, J., concurs in the result.
HOUSTON, Justice (concurring specially).
I concur with the majority opinion.
I have been singing from the hymnal used by Justice Maddox on the need for meaningful standards for jury and trial court assessment, and trial court and appellate review, of punitive damages since I have been a Justice on this Court. The phrase "meaningful standards" does not mean that the amount of punitive damages must be small, but only that the amount should be arrived at as a result of the party against whom such damages are assessed having been afforded procedural due process. The amount of punitive damages must reasonably relate to the wrong and the wrongdoer, or as W.S. Gilbert wrote and retired Justice Samuel A. Beatty did frequently quote:
The Mikado (1885).
MADDOX, Justice (concurring in the result).
I concur in the result reached, but I continue to adhere to the view I expressed in a dissent in Pacific Mut. Life Ins. Co. v. Haslip, 553 So. 2d 537 (Ala.1989), that the United States Supreme Court will hold, on review of that case, that Alabama's scheme for the award of punitive damages fails to guarantee to defendants the "fundamental fairness" that the Constitution requires.
For over a decade I have questioned the process that this Court has used to award punitive damages in cases involving claims such as the one presented in this case, and I have suggested that the legislatureor this Courtshould consider alternatives to an action against an insurance company for fraud or bad faith failure to pay a claim.
The award of $750,000 in this case, while three times more than the "cap" set in the so-called tort reform legislation (which does not apply in this case), is not substantially different from awards made in similar cases. It is on that basis that I concur in the result. Until the Supreme Court of the United States decides the "due process" question that is presented in Pacific Mutual, I will not know whether my prediction about the outcome of that case will be proven accurate. In the meantime, I see no useful purpose to be served by continuing to dissent when the bench and bar are duty bound to apply the law as expressed by a majority of this Court. Because of that, I concur in the result.
[1] We note that this case was filed on October 3, 1986; therefore, the "scintilla rule" of evidence applies. "[T]he scintilla rule requires that issues in civil cases must go to the jury if the evidence, or a reasonable inference therefrom, furnishes a glimmer or trace in support of an issue." Alabama Farm Bureau Mut. Cas. Ins. Co. v. Haynes, 497 So. 2d 82, 85 (Ala.1986). | July 20, 1990 |
055e0061-3770-48f6-936a-3c27a9d24d34 | Hannah v. Blackwell | 567 So. 2d 1276 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1276 (1990)
Robert HANNAH, Jr.
v.
Ellen C. BLACKWELL.
89-607.
Supreme Court of Alabama.
August 31, 1990.
*1277 Reggie Copeland, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
Julian B. Brackin and Thack H. Dyson, Foley, for appellee.
ALMON, Justice.
This is an appeal from the denial of a Rule 55(c), Ala.R.Civ.P., motion to set aside a default judgment. That judgment was entered in favor of Ellen C. Blackwell and against Robert Hannah, Jr., in an automobile accident case. The question presented *1278 is whether the denial was an abuse of discretion.
Hannah and Blackwell were involved in an automobile collision in Gulf Shores. The accident report completed by the investigating officer listed Hannah's address as being in Florence, Mississippi, in accordance with the driver's license he was using at the time. However, Hannah contends that he filled out a Form SR-13 at the scene of the accident, giving his correct address as being in the town of Coden, in Mobile County. He contends that both the investigating officer and Blackwell were made aware of his correct address at the scene of the accident.
Blackwell later filed a complaint against Hannah, seeking damages for the bodily injuries she allegedly sustained during the accident. She requested that a copy of the summons and complaint be served on Hannah at the Mississippi address. That attempt at service was unsuccessful, and Blackwell filed a motion to allow service by publication. Her motion was granted, and Hannah failed to respond to the notices published in a Baldwin County newspaper of general circulation. A hearing was held on Blackwell's subsequent motion for a default judgment, with notice being sent to the Mississippi address. Again, Hannah did not respond. As a result, a default judgment was entered against Hannah for $30,995.50 on August 9, 1989. On September 1, 1989, less than one month after the default judgment was entered, Hannah filed his motion to have the default judgment set aside. His motion was supported by two affidavits and an exhibit.
The decision of whether to set aside a default judgment requires the balancing of two competing interests: (1) the need to promote judicial economy, and (2) the need to preserve an individual's right to defend on the merits. See C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Civil, § 2693 (2d ed. 1983). Because the interest in preserving a litigant's right to a trial on the merits is paramount, this Court has construed Rule 55(c) as contemplating a liberal exercise of a trial court's discretion in favor of setting aside default judgments. Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283 (Ala.1987). Additionally, it is implicit in the Alabama Rules of Civil Procedure that default judgments are not favored. Johnson v. Moore, 514 So. 2d 1343, 1345 (Ala.1987).
This Court set out a three-factor analysis to be used by trial courts in determining when to grant Rule 55(c) motions, in Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala. 1988). Those three factors are: (1) whether the defendant has a meritorious defense; (2) whether the plaintiff will be unfairly prejudiced if the default judgment is set aside; and (3) whether the default judgment was entered as a result of culpable conduct on the part of the defendant. Kirtland, 524 So. 2d at 605.
In establishing a meritorious defense, the burden on the movant is not to satisfy the trial court that he would necessarily prevail at a trial on the merits, only that he is prepared to present a plausible defense. Ex parte Illinois Central Gulf R.R., 514 So. 2d at 1288. The proposed defense must be of such merit as to allow the trial court to reasonably infer that allowing the defense to be litigated could foreseeably alter the outcome of the case. Kirtland, 524 So. 2d at 606. In his Rule 55(c) motion, Hannah stated that his insurer had settled with Blackwell for all of the property damage that she had sustained.[1] He also stated that his insurer had tendered a check to Blackwell for $807.30 as a full and final settlement for her alleged bodily injury claim, and that Blackwell had negotiated that check and retained the funds. The allegations in Hannah's motion were supported by his affidavit, the affidavit of a claims examiner for his insurer, and a copy of the negotiated check that was tendered to Blackwell to settle her *1279 bodily injury claim.[2] The claims adjuster's affidavit is reproduced below:
A defaulting party has made a satisfactory showing of a meritorious defense if the proposed defense, if proven at trial, would be a complete defense to the action or if sufficient evidence has been produced to warrant submission of the case to a jury. Kirtland, 524 So. 2d at 606. Hannah's allegations of accord and satisfaction, which are supported by the record, would be a complete defense to Blackwell's action. Therefore, he satisfied the "meritorious defense" factor in the Kirtland analysis.
The second factor to be considered is whether setting aside the default judgment would unfairly prejudice the nondefaulting party. In Kirtland this Court recognized the policy followed in federal courts, which is that the prejudice involved must be substantial to warrant the denial of a Rule 55(c) motion. 524 So. 2d at 607. The only potential prejudice raised by Blackwell is the possible loss of evidence due to the passage of time. However, there were no witnesses noted on the accident report and Blackwell does not indicate what type of evidence is at risk due to the passage of time. The vague concerns expressed by Blackwell do not indicate that she would be substantially prejudiced by the setting aside of the default judgment.
The third factor to be considered is the culpability of the defaulting party's conduct. Blackwell contends that Hannah purposely misled the investigating officer by giving him a driver's license with an incorrect address. However, that allegation is unsupported. Hannah contends that he made the officer aware of his correct address at the time of the accident and used his correct address on all forms that he filed with the State in connection with the accident. In addition, there is no evidence that he purposely avoided service of process. This Court has defined "culpable conduct" as conduct that is willful, in bad faith, or disrespectful toward the judicial system. Such conduct justifies denying a Rule 55(c) motion. Kirtland, 524 So. 2d at 607; Ex parte Illinois Central Gulf R.R., 514 So. 2d at 1288. There is no evidence that Hannah engaged in that type of conduct. Although a question remains regarding whether Hannah actually made the investigating officer aware of his correct address, that question should not be resolved in Blackwell's favor, especially in light of the principle that the trial judge's discretion should be exercised in favor of the defaulting party whenever there is some doubt as to the propriety of the default *1280 judgment. Oliver v. Sawyer, 359 So. 2d 368, 369 (Ala.1978).
After reviewing Hannah's motion, the supporting affidavits, and the exhibit, this Court concludes that he satisfied each of the three factors in the Kirtland analysis. Therefore, the trial judge's denial of his Rule 55(c) motion was an abuse of discretion. The judgment is reversed and this cause is remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Blackwell's property damage claim was not made a part of her complaint and thus is not an issue in this appeal.
[2] A copy of that check was not in the original record on appeal, and Hannah has filed a motion requesting this Court to supplement the record with a copy of the check. Because that check appears to have been before the trial judge when he ruled on Hannah's Rule 55(c) motion, and because Blackwell has not objected to Hannah's motion to supplement the record, that motion has been granted. | August 31, 1990 |
2fad6da3-09df-4f17-b72d-07e6afd47ea9 | Vance v. Huff | 568 So. 2d 745 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 745 (1990)
Victor E. VANCE and Mildred Vance
v.
John T. HUFF, Jr., et al.
89-744, 89-745.
Supreme Court of Alabama.
August 31, 1990.
*747 James B. Sprayberry, Auburn, for appellants.
Samuel H. Franklin of Lightfoot, Franklin, White & Lucas, and Jay D. Clair of Bradley, Arant, Rose & White, Birmingham, for appellees.
PER CURIAM.
This Court has consolidated appeals from two summary judgments[1] that were entered in favor of numerous defendants and against the plaintiffs, Victor and Mildred Vance, in a case involving allegations of promissory fraud, breach of contract, wrongful ouster from a partnership, and a number of other claims. The facts giving rise to the Vances' various claims are complex. Therefore, the basic facts surrounding this case will be set out, with a more detailed exposition of the pertinent facts to be supplied as each issue is addressed.
In 1986 John Huff, Victor Vance, and Kiefer Hobby formed a business association for the purposes of developing and managing a manufacturers' outlet shopping center in Opelika and for developing or managing similar centers in other parts of the State. No written agreement was executed by these parties, and there is a dispute as to whether they intended to form a partnership or to form a different type of business organization. Notwithstanding that dispute, it is clear that Huff was to provide the capital needed for the association's projects and that Vance and Hobby were to provide labor and services.
Vance's primary responsibilities were to obtain the necessary land, promote the outlet center, and secure tenants. Hobby was to oversee construction of the center. In return for their services, Huff was to receive 85% of any profits; Vance was to receive 10%; and Hobby was to receive 5%. However, Hobby left the association before construction began, and Vance contends that he was promised Hobby's 5% of the profits by Huff. Vance also contends that he was promised a position as manager of the center, for which he was to receive an annual salary of $52,000. In September 1986, Stephen Lowitz and Roberto Boltt joined the association. Their primary function was to provide additional capital, but they withdrew from the association in November 1986.
It is difficult to determine from the record what type of business organization the parties intended to form. There was no written partnership agreement, certificate of limited partnership, or evidence of incorporation. Huff contends that the parties agreed to wait and determine what type of organization would best fit their needs, but that, due to Vance's departure from the association, that choice was never made. Vance argues that they formed a partnership, and his position is supported by Hobby's deposition testimony. Lowitz and Boltt were named as defendants but have not submitted briefs to this Court, and their involvement is minimal.[2] However, a review of their deposition testimony *748 seems to support Huff's position that no definite type of organization was agreed on.
For the purposes of determining the propriety of the summary judgments, this Court concludes that Vance presented substantial evidence that a partnership was formed, albeit an informal one. The parties agreed to pursue the common goal of developing an outlet center, agreed to share profits, and shared management responsibilities. There is no settled test for determining the existence of a partnership. That determination is made by reviewing all the attendant circumstances, including the right to manage and control the business. Ala.Code 1975, § 10-8-20; McCrary v. Butler, 540 So. 2d 736 (Ala.1989).
Mildred Vance also formed a partnership with Huff, known as H & V Investment Company ("H & V"). H & V was formed to manage a shopping center called the Market Place, which was located in Baldwin County. They executed a written agreement, stating that Huff was to receive 85% of any profits, with the remaining 15% going to Mildred. In order to finance the renovation and the operation of the center, Huff and Mildred borrowed money from a savings and loan association, giving a promissory note in exchange.
Victor Vance and Huff began to have disagreements over the way their alleged partnership was being run and, according to Vance, over his share of the management responsibilities and his future duties. In March 1987, Vance tendered a letter to Huff expressing a desire to leave the partnership. Soon after that letter was written, Vance's involvement with the partnership ended. Vance argues that he was wrongfully forced out of the partnership, but Huff contends that he voluntarily abandoned it. Also in early 1987, Mildred Vance and Huff executed a document wherein Mildred assigned her 15% interest in H & V to Huff. In May or June 1987, Huff and Vance unsuccessfully attempted a reconcilation, and in December 1988 Victor and Mildred filed a multi-count complaint against Huff and a number of other defendants. The trial court entered summary judgment in favor of all of the defendants on all of the counts.
At the outset, we note that the Vances' complaint was filed after June 11, 1987, the effective date of Ala.Code 1975, § 12-21-12. Therefore, the standard of review on the motions for summary judgment was the "substantial evidence rule." Posey v. Posey, 545 So. 2d 1329, 1333 (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 facts sought to be proved." Thomas v. Principal Financial Group, 566 So. 2d 735, 738 (Ala. 1990); West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989).
Vance alleged that Huff and other members of the partnership promised him lifetime employment as the manager of the outlet center and then breached that "contract." There are no written offers of employment in the record, and Vance's allegation is based on the following statements that he contends were made to him by members of the alleged partnership:
However, Vance conceded during his deposition that there was never any discussion among the partnership's members of an employment contract. In addition, Vance's deposition testimony reveals that he was not entirely sure of the nature of the promises that he alleges were made:
As this Court noted in Harrell v. Reynolds Metals Co., 495 So. 2d 1381, 1385-86 (Ala.1986):
In a case applying Alabama law, the Eleventh Circuit Court of Appeals recognized that the burden on a plaintiff claiming that he was promised permanent or lifetime employment is unusually heavy:
Chastain v. Kelly-Springfield Tire Co., 733 F.2d 1479, 1484 (11th Cir.1984), citing Alabama Mills, Inc. v. Smith, 237 Ala. 296, 186 So. 699 (1939), and other cases.
After reviewing the alleged promises relied on by Vance, this Court concludes that those statements cannot be construed as "clear and unequivocal" offers of lifetime or permanent employment. Chastain, supra. Instead, they appear to have been assurances that Vance's prospective job as the manager of the outlet center and his involvement with the partnership would be lucrative. As such, they are not "substantial evidence" in support of his claim, and the entry of summary judgment was proper as to this issue.
Vance also alleged that he was wrongfully forced out of the partnership that he had formed with Huff and Hobby and was therefore entitled to: (1) rescind the partnership agreement; (2) receive an accounting; and (3) petition the court for an order of dissolution. As stated earlier, this Court has concluded that Vance presented evidence showing the formation of a partnership. However, he did not produce substantial evidence that supports his claim that he was forced out of the partnership against his will.
With his motion for summary judgment, Huff attached a letter given to him by Vance dated March 11, 1987. In that letter Vance stated that he believed that his ability to contribute to the partnership was deteriorating, and he expressed a desire to withdraw. In addition, Vance testified during his deposition that during this period he discussed the possibility of employment with Lowitz after Lowitz had also withdrawn from the association:
This evidence supports Huff's assertion that Vance voluntarily abandoned the partnership.
Under Ala.Code 1975, § 10-8-44, a partner can rescind a partnership contract if another party to the contract is guilty of fraud or misrepresentation. There is no evidence that Huff or the other defendants were guilty of fraud or misrepresentation. Moreover, this statute has been raised for the first time on appeal. Therefore, any claim presented subject to that statute cannot be reviewed by this Court. Defore v. Bourjois, Inc., 268 Ala. 228, 230, 105 So. 2d 846, 847 (1958).
A partner is entitled to a formal accounting as to partnership affairs:
Ala.Code 1975, § 10-8-47 and -48. As stated earlier, it appears that Vance voluntarily abandoned his partnership with Huff and the other defendants. In addition, there was no written partnership agreement and, thus, there is no evidence of an agreement giving Vance the right to an accounting. Finally, there has been presented no evidence that one of Vance's copartners breached a fiduciary duty, or that there are surrounding circumstances that would compel an accounting.
Vance also contends that he was entitled to a court-ordered dissolution of the partnership under Ala.Code 1975, § 10-8-92. That statute lists six circumstances that would require a dissolution, and Vance has not specified which, if any, of those circumstances apply to his case. In light of the informal nature of the partnership and Vance's voluntary abandonment of it, this Court concludes that the trial court's implicit finding that none of the statutory grounds for dissolution was present was proper.
Because Vance failed to present substantial evidence in support of his claim that he was wrongfully forced out of the partnership, the entry of summary judgment was correct as to that claim.
Vance also asserted a claim of promissory fraud against Huff. In essence, he alleged that Huff promised him a job as manager of the outlet center, as well as a percentage of the partnership's profits, but that at the time they were made Huff had no intention of honoring those promises.
The elements of promissory fraud are: (1) a misrepresentation; (2) of a material existing fact; (3) upon which the plaintiff justifiably relied; (4) which proximately caused injury or damage to the plaintiff. In addition to those elements, the plaintiff must also present evidence showing that at the time the defendant made the alleged misrepresentations, the defendant intended not to do the acts promised and intended to deceive the plaintiff. Coastal Concrete Co. v. Patterson, 503 So. 2d 824, 826 (Ala. 1987). The defendant's intent to deceive can be established through circumstantial evidence that relates to events that occurred after the alleged misrepresentations were made. Martin v. American Medical International, Inc., 516 So. 2d 640 (Ala. 1987).
Despite his allegation of fraud, Vance testified during his deposition that he believed that Huff was "sincere" when he made these alleged promises, but decided at a later date not to honor them. Absent substantial evidence showing a present intent to deceive on the part of the defendant, a claim of promissory fraud cannot stand. Coastal Concrete, supra. Vance's deposition testimony clearly contradicted his allegation of promissory fraud, and after a careful review of the record this Court has found no substantial evidence to support Vance's claim that, at the time the representations were made, Huff had a present intent to dishonor them or intended to deceive Vance. Therefore, the entry of summary judgment was proper as to that claim.
Vance also contends that he originated the name "USA Outlet Center" and that Huff has used that name without his permission and thus has violated Ala.Code 1975, § 8-12-15, reproduced below:
This statute prohibits the registration of a trademark or trade name through fraudulent means. It is not intended to create a cause of action for the use of a trade name without permission, the act that Vance complains of. In addition, the only evidence that Vance directs this Court's attention to concerning this claim is his affidavit. That affidavit and Mildred Vance's affidavit were stricken, at least in part, by the trial court because they contradicted the clear and unambiguous testimony given by the Vances during their depositions. In addition, neither of those affidavits is included in the record on appeal. Because the burden is on the appellant to present a record that contains sufficient evidence to warrant a reversal, Seidler v. Phillips, 496 So. 2d 714 (Ala.1986), and no such evidence was presented in regard to this claim, the entry of summary judgment is due to be affirmed as to that claim.
Counts six and seven of the complaint were claims asserted by Mildred Vance against Huff and H & V, the partnership she formed with Huff. Those claims arose out of Mildred's assignment of her partnership interest in H & V to Huff. She alleged that the assignment violated the terms of the H & V partnership agreement and was procured through the use of misrepresentations by Huff, wherein he allegedly promised Mildred that she would receive 15% of any profits if the shopping center that appears to have been H & V's sole asset was sold; that she would no longer be liable on the note that she and Huff signed; and that Huff would sell the shopping center to the Vances if they could obtain financing. In the complaint Mildred asked for a dissolution of H & V, an accounting, damages, and the removal of her name from the note.
Mildred and Huff executed two documents to effect the assignment. The first document was an amendment to the H & V partnership agreement that expressly allowed the method of transferring a partnership interest that was used in the other document. Therefore, it appears that the partnership agreement was not violated by the assignment. The second document set out the terms of the assignment to Huff. Both of those documents clearly state that Mildred was assigning any present and future interest in H & V to Huff, thus contradicting the alleged promise made by Huff that Mildred would receive a share of profits upon the sale of the center. Both documents also state that Mildred would no longer be responsible for any losses or liabilities incurred by H & V. In addition, Huff offered to enter into an indemnification agreement with Mildred, but that offer was refused. However, notwithstanding that refusal, Mildred testified that she has never been asked to make any payments on the note.
There is no evidence to support the Vances' allegations that Huff promised Mildred a share of the partnership's future profits. However, even if this Court were to accept those allegations as true, we note that Mildred testified that she wanted out of the partnership and voluntarily assigned her interest in H & V to Huff. In addition, Mildred testified that Huff did not try to prevent her from reading the documents that she signed, and that she was given ample time to read them but chose not to.
This Court has repeatedly held that the right to rely on the representations of others comes with a concomitant duty on the part of plaintiffs to exercise some measure of precaution to safeguard their interests. See Torres v. State Farm Fire & Casualty Co., 438 So. 2d 757, 758-59 (Ala. 1983), and cases cited therein. If the circumstances surrounding the alleged misrepresentations are such that a reasonably prudent person exercising ordinary care would have discovered the facts, the plaintiff is not entitled to recover. Bedwell Lumber Co. v. T & T Corp., 386 So. 2d 413, 415 (Ala.1980).
In the instant case, the two documents signed by Mildred and Huff appear to be the final expression of their agreement. The evidence shows that Mildred could read and was an experienced businessperson. In addition, no attempt was made to keep Mildred from reading the documents she signed. "In civil contractual matters, the law has always been that one is presumed *752 to know and intend what he places his signature to. "Holman v. Joe Steele Realty, Inc., 485 So. 2d 1142, 1144 (Ala. 1986), quoting Broadway v. Household Finance Corp. of Huntsville, 351 So. 2d 1373, 1376 (Ala.Civ.App.1977), cert. denied, 351 So. 2d 1378 (Ala.1977). Because Mildred could not justifiably rely on the representations that she alleged were made by Huff, summary judgment on counts six and seven of the Vances' complaint was proper.
Vance also asserted a claim for $500,000 as compensation for work and labor done on behalf of the partnership.
Both Vance and Huff testified during deposition that all of the partners initially agreed to forgo compensation until the outlet center was completed. However, in late 1986 Vance demanded payment of some sort on a weekly basis. He characterizes those payments as draws against future profits, while Huff contends that they were ordinary salary payments to an employee. Regardless of the nature of those payments, it is clear that Vance began receiving $500 a week from Huff in November 1986 and that those payments continued until he withdrew from the partnership. Therefore, his contention that he worked without pay is baseless. In addition, Vance has consistently argued that he was a partner in the outlet center project. Under Ala.Code 1975, § 10-8-43(6), "no partner is entitled to remuneration for acting in the partnership business." Therefore, the entry of summary judgment was proper as to this claim.
For the reasons set out above, this Court concludes that the summary judgments were proper as to each claim in the Vances' complaint, and those judgments are affirmed.
89-744AFFIRMED.
89-745AFFIRMED.
MADDOX, ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] The first was a partial summary judgment made final pursuant to Rule 54(b), Ala.R.Civ.P., and the second was entered as to the remaining counts after the plaintiffs had filed their first notice of appeal.
[2] The notice of appeal simply named "John T. Huff, Jr., et al.," as appellees. | August 31, 1990 |
fd928ab4-2e64-4f91-93bd-a549ce6ae2d2 | Nowogorski v. FORD MOTOR CO., INC. | 579 So. 2d 586 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 586 (1990)
Ada NOWOGORSKI
v.
FORD MOTOR COMPANY, INC., and Spruiell Ford Tractor Company.
89-518.
Supreme Court of Alabama.
September 7, 1990.
Rehearing Denied April 19, 1991.
*587 Lanny S. Vines of Emond & Vines, Birmingham, for appellant Ada Nowogorski.
Warren B. Lightfoot, Jere F. White, Jr., and William H. King III of Lightfoot, Franklin, White & Lucas, Birmingham, for appellee Ford Motor Co., Inc.
Edgar M. Elliott III and Deborah Ailey Smith of Rives & Peterson, Birmingham, for appellee Spruiell Ford Tractor Co.
ADAMS, Justice.
Ada Nowogorski, as the dependent widow of Frank Nowogorski and as administratrix of his estate, filed suit against, inter alia, Ford Motor Company ("Ford"), as manufacturer of a tractor, and Spruiell Ford Tractor Company ("Spruiell"), as the seller of the tractor, for damages based on a claim that they had wrongfully caused the death of her husband. The case was tried before a jury during the week of July 31, 1989, and on August 4, 1989, the jury returned a verdict against Ford, assessing damages of $150,000, and returned a verdict in favor of Spruiell. The plaintiff filed a motion for a new trial on September 1, 1989, alleging juror misconduct and inconsistent verdicts. The court denied the motion for a new trial, and the plaintiff appealed. We reverse and remand.
The facts underlying this action basically are not in dispute. On July 25, 1984, Mr. and Mrs. Nowogorski went to Spruiell's place of business to look at tractors. Mr. Nowogorski informed Mr. Spruiell that he needed a tractor for pulpwooding. Plaintiff alleged that on or about December 7, 1984, her husband was killed when the tractor he was operating overturned and landed on him. Before the tractor overturned, Mr. Nowogorski had run over a stump with the left wheel of the tractor, causing the wheel to come off the ground. This tractor was not equipped with a rollover protection structure or a rollbar ("ROPS"). In 1980, Ford had implemented a system whereby a ROPS would be installed as standard equipment and included in the base price, but under that system either the customer or the dealer had the option of deleting it. If the customer wished to delete the ROPS, he was required to sign a "Warranty and Limitation of Liability" form provided to the dealer by Ford. When the Nowogorskis returned to purchase a new tractor from Spruiell, a model 2110 Ford tractor, the portion of the "Warranty and Limitation of Liability" form that stated that the dealer had discussed the ROPS with Mr. Nowogorski was not checked off. Spruiell had acquired this tractor from Tupelo Ford Tractor Company and at that time it was not equipped with a ROPS. There is some dispute in the record as to whether any discussion of a ROPS took place between Mr. and Mrs. Nowogorski and Mr. Spruiell. The wheels can be adjusted on a model 2110 tractor, depending on the type of work it is to be used for. Mr. Spruiell had not changed the wheel setting from the narrow factory setting after the tractor was delivered from Tupelo. There is no indication that Mr. Spruiell informed the Nowogorskis that the wheels could be adjusted. A copy of the operator's manual was given to the plaintiff and her husband upon delivery of the tractor; however, nothing in the manual states that the narrow factory wheel setting could cause the tractor to be unstable.
*588 The judge instructed the jury that the plaintiff sought recovery from both defendants under the Alabama Extended Manufacturer's Liability Doctrine ("AEMLD") on the ground that the defendants had failed to warn Mr. Nowogorski that the tractor was in a defective condition at the time it was sold. The judge instructed the jury that plaintiff also sought recovery from defendant Ford under the crashworthiness doctrine. The court then listed five elements that the plaintiff was required to prove in order to recover against Ford:
Shortly after the deliberations had begun, the jury sent to the judge a note that read, "What were the five points of law for determining for or against the plaintiff?" The judge gave the jury the option of being reinstructed on the entire issue of liability or not being reinstructed at all. The jury chose the former, and the court gave the same instructions it had given earlier.
On the second day of deliberations, jury foreman Richard Allen took a Webster's New Collegiate Dictionary into the jury room. Allen read the definition of at least one word to the jury. The jury returned a verdict against defendant Ford, awarding plaintiff $150,000. The jury found in favor of defendant Spruiell.
The plaintiff claimed that she was entitled to a new trial because of the alleged juror misconduct in consulting a dictionary. She also claimed that the verdicts were inconsistent. The trial court held a hearing on the motion, and considered affidavits of the jurors and memoranda of law submitted by the parties. The affidavits of the jurors varied. Seven jurors stated with certainty that the definition of "defective" was read in the jury room. One believed, but was not certain, that this definition was read. One juror, Patricia Carr, mentioned the word "unreasonably," yet, she was not certain that its definition had been read in the jury room. Juror Deborah Day mentioned the term "unreasonable," but she could not state with certainty that its definition had been read to the jurors. Another juror, Sherry Pounders, stated that the definition of either "availability" or "available" was read in the jury room. Jury foreman Allen stated that the terms "tractor" and "safety" were read in the jury room, but he was not certain if he read the definition of "safety" aloud. The affidavit of juror Cedric Barnes is as follows:
After the hearing, the trial court denied the motion for a new trial.
Two issues are presented on appeal: (1) Whether the trial court erred in denying the plaintiff's motion for a new trial on the basis of juror misconduct in considering evidence not presented at trial, and (2) whether the trial court erred in denying plaintiff's motion for new trial, which alleged that the jury's verdict was inconsistent and contradictory.
Jury foreman Allen stated in his affidavit that he carried the dictionary into the jury room because some of the judge's charges were confusing to the jurors and because some of the jurors had different opinions as to what certain words in the charge meant. In the court's oral charge, the jury was charged, in part:
We considered the question of when juror misconduct justifies the granting of a new trial, in Whitten v. Allstate Ins. Co., 447 So. 2d 655 (Ala.1984), where we stated the rule to be as follows:
Id. at 658. In determining that a new trial should have been granted in Whitten, the Court reviewed the affidavits and testimony in the case and determined that the jurors were prejudiced by the unauthorized viewing of the scene of the accident and by the subsequent discussions about those views. Two of the jurors stated that the extraneous matter had influenced their decisions, even though several other jurors stated that the extraneous matter had not influenced their decisions. We concluded that the trial court could not have found that the extraneous material was not prejudicial, since there was undisputed evidence that the extraneous material had influenced two jurors to change their minds. In each of the cases in which we have held that the trial court erred in failing to grant a new trial, there has been a common factorthe existence of juror misconduct that could have affected the verdict. See Hallmark v. Allison, 451 So. 2d 270 (Ala. 1984); Nichols v. Seaboard Coastline Ry., 341 So. 2d 671 (Ala.1976).
The plaintiff contends that she was prejudiced by juror misconduct as to both defendants and as to damages. It is clear that extraneous facts were introduced into the jury's deliberations. It is also clear from juror Cedric Barnes's affidavit that the extraneous facts did influence at least Barnes's decision.
In Hallmark, the affidavit of one juror indicated that after the first day of deliberations two jurors took measurements of pick-up trucks; that they discussed and demonstrated their measurements and findings with other jurors; and that "the height of the truck and the boy was important in reaching their decision because it would be physically impossible for the boy to hit the windshield while standing straight up." In the case at bar, an important issue from the defendant's standpoint is whether the tractor was defective. The plaintiff's contention is that the tractor was defective. Therefore, the definition of the word "defective" given to the jury was critical in determining a proper verdict. The jurors apparently understood the importance of this word well enough that they debated the meaning of it and then consulted a dictionary in order to resolve the question. In reversing the judgment of the trial court in Hallmark, we said that we were unable to determine whether the introduction of the extraneous facts did change the decision of the jurors, but consideration of the extraneous facts was crucial in resolving a "key material issue in the case," and we concluded that "the trial court could not reasonably have found that the introduction of the extraneous matter *590 into the jury's deliberations was not prejudicial."
As it was noted in In re Collins' Will, 18 N.J.Misc. 492, 15 A.2d 98, 100 (1940), "the manifest need of a dictionary seems to refute the assumption that the jury understood and remembered the instructions." It has long been the law in this state that the jury is bound by the theory of law as charged by the trial court, and that it has no right to depart from it. Even if the instructions given by the court are erroneous, the jury must obey those instructions; and when the jury fails to do so, the trial court is justified in setting aside the verdict and granting a new trial. Burkett v. Burkett, 542 So. 2d 1215 (Ala.1989).
In Nichols v. Seaboard Coastline Ry., 341 So. 2d 671 (Ala.1976), this Court held that one juror's presenting to others, during deliberations, encyclopedia definitions of negligence, contributory negligence, subsequent negligence, and subsequent contributory negligence, coupled with four other jurors' consulting either encyclopedias or dictionaries to clear up confusion concerning several legal words and phrases, constituted prejudice as a matter of law that required a reversal. In Nichols, we held that the character and nature of the extraneous material constituted prejudice as a matter of law and that no showing that the jury was, in fact, influenced thereby in arriving at its verdict was necessary. However, we also limited this to a case-by-case determination to be made in light of the particular facts and attending circumstances.
In Nichols, we held that "the use of any source beyond the court itself, for instructions on the law is prejudicial as a matter of law." Id. at 676. "This clearly falls within the category of one of those bells which the law recognizes cannot be unrung." Id. Further,
Id. at 676.
It is well settled that if the verdict could have been affected by the juror misconduct, then a new trial is justified. We have carefully examined the record in this case. Mrs. Nowogorski's claim that the jurors' verdict was affected by the reading of some key definitions out of Webster's New Collegiate Dictionary is supported by the affidavits presented. Here, as in Whitten and Nichols, at least one juror testified that his decision about the case was influenced by the extraneous dictionary definitions to be "more in favor" of Ford than in favor of the plaintiff. This evidence is sufficient to prove that the verdict was affected by juror misconduct. Thus, the trial court erred in not granting plaintiff's motion for a new trial, both as to Ford and Spruiell.
Because we must reverse on the basis of the jury's misconduct, we pretermit any discussion of the "inconsistent and contradictory verdicts" issue.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, SHORES and STEAGALL, JJ., concur. | September 7, 1990 |
e88f1322-1b7a-4a7d-976c-73f1808402ec | Cornelius v. Austin | 567 So. 2d 1245 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1245 (1990)
Martha CORNELIUS and Timothy Cornelius
v.
Douglas AUSTIN and Virginia Austin.
89-405.
Supreme Court of Alabama.
August 3, 1990.
Rehearing Denied September 14, 1990.
Kenneth Lee Cleveland of Cleveland & Cleveland, Birmingham, for appellants.
W. Lewis Garrison, Jr., of Corley, Moncus & Ward, Birmingham, for appellees.
PER CURIAM.
This is the second appeal of this case. See Cornelius v. Austin, 542 So. 2d 1220 (Ala.1989). Martha and Timothy Cornelius originally sued Douglas and Virginia Austin, alleging fraud and breach of contract. The trial court entered summary judgment for the Austins on the fraud count alone, and this Court affirmed. Subsequent to that appeal, the Corneliuses amended their complaint, alleging conspiracy. The trial court entered a summary judgment in favor of the Austins on both the contract claim and the conspiracy claim. The Corneliuses appeal.
Upon review of the record, we find that the contract entered into by the parties prior to the real estate closing merged with the deed executed by the Austins and recorded in the Probate Court of Jefferson County, Alabama. The Corneliuses have failed to rebut the defendants' prima facie showing that there was no *1246 breach of contract as a matter of law. The conspiracy claim necessarily fails, not because of merger, but because there is no actionable wrong to support it.
Therefore, on the authority of Thibodeaux v. Holk, 540 So. 2d 1378 (Ala.1989), and Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983), appeal after remand, Ex parte Purcell Co., 451 So. 2d 801 (Ala.1984), we affirm the trial court's judgment on both counts.
AFFIRMED.
MADDOX, HOUSTON and STEAGALL, JJ., concur.
JONES, ALMON and ADAMS, JJ., concur in the result.
HORNSBY, C.J., dissents.
HORNSBY, Chief Justice (dissenting).
I must respectfully dissent from the majority's holdings in this case. Through this appeal and the earlier appeal in this action, Cornelius v. Austin, 542 So. 2d 1220 (Ala. 1989) (Cornelius I), the plaintiffs have been effectively denied their day in court for their claims against both the sellers of the house and the real estate agent.
In the original complaint, the plaintiffs alleged fraudulent misrepresentation, suppression, and concealment of a defective condition of the residence, and breach of contract. Defendant First Real Estate pleaded merger and release, denying any fraud and alleging that the plaintiffs had been contributorily negligent and that they had voluntarily assumed the risk. First Real Estate filed a motion for summary judgment based on these grounds. The Austins also filed a motion for summary judgment, contending that the plaintiffs' claims of fraud were not supported by a scintilla of evidence.
The trial court entered summary judgment for the defendants only on the tort claims. This Court in Cornelius I affirmed that judgment in an opinion written by Justice Beatty before I became a member of this Court. Given a clean slate, I would write to allow the jury to resolve the plaintiffs' claims, as discussed below.
The majority in Cornelius I found that the plaintiffs had not shown a scintilla of evidence to support their claims of fraud. I believe most strongly that a different result is warranted here and that the Cornelius I opinion analyzes the law of fraud incorrectly.
The record shows the following facts: The defendants hired Ms. Forehand, a real estate agent from First Real Estate, to be the listing agent as well as the selling agent for their house, which was located in Birmingham. One of the plaintiffs, Mrs. Cornelius, saw the "for sale" sign in the yard of the house and called the agent to set up an appointment to see the house. Mrs. Cornelius stated that during her first visit to the house, she asked Forehand if there were "any problems" with the house and that Forehand replied that there were not. The Corneliuses visited the house several more times prior to making an offer, but were unable to look into the crawl space under the house because an air duct blocked the entry to, and a view of, the crawl space.
Mrs. Cornelius testified that prior to the closing she had also had a telephone conversation with Mrs. Austin, in which she asked her if there "were any problems with the house," and that Mrs. Austin had replied "no." Mrs. Austin, however, did not recall this conversation and remembered only a question from Mrs. Cornelius in which Mrs. Cornelius had asked if the house had ever mildewed.
On October 20, 1985, the Corneliuses and the Austins executed a sales contract for the house, contingent upon the Corneliuses' obtaining an FHA loan. A termite inspector, Mr. Brown, indicated that he performed a termite inspection on the house subsequent to the execution of the contract and found water under the house. He notified the sales agent of this discovery on November 20, 1985, six days prior to the closing. This time period was disputed in that Mrs. Austin testified that she remembered *1247 that the inspection took place only four days prior to closing. The sales agent telephoned Mrs. Austin and told her about the water; Mrs. Austin told her husband. Mr. Austin removed the throw rug from the hall floor, opened the plywood hatch covering the space where a floor furnace had been removed from beneath the hall floor, and saw water underneath the floor in the crawl space. Mr. Austin stated that he did not smell an odor and that he and his wife attempted to determine the cause of any leak, but could not find the source of the problem. He admitted that he purchased sand and covered the water with one or two wheelbarrow loads of sand, replaced the plywood hatch, and covered the hatch with the throw rug. Mr. Austin stated that the sand was used to cover the water so that the termite inspector could proceed with his inspection.
According to Forehand, she visited the Austins on the evening of November 20 or the next day and asked the Austins if they had checked out the water under the house. The Austins testified that they informed her that they could not find the source of the water, and Mr. Austin stated that he had placed sand under the house to absorb the water. Further testimony indicated that Mr. Austin asked her if that would "take care of it" or if they should call a plumber. Forehand told the Austins not to worry about it, that they did not need to call a plumber, that they (the Austins) had done all they could do, and that "you don't have anything to worry about." Forehand also indicated that she questioned Mr. Austin as to past problems with the septic tank and was told that there were no problems, except "on one occasion the water did not run out of the tub very fast, and we [the Austins] put something in there ... that took care of it." Forehand testified that she again told the Austins that "you don't have anything to worry about." The Austins testified that they did not tell the Corneliuses about the water problem.
The closing took place on November 26, 1985. Mrs. Cornelius testified that she picked up the keys on December 13, 1985, when the Austins had finally vacated the house. She further stated that she and other members of the family walked through the empty house that evening and noticed an odor, but could not find the source. The next day the Corneliuses began cleaning and painting and noticed the odor again. Mrs. Cornelius was attempting to clean the hardwood floors and removed the rug in the hallway. Underneath the rug she discovered the plywood hatch. In removing the rug and the plywood, the Corneliuses discovered the source of the odor, finding raw sewage in the crawl space. Mr. Cornelius testified that when he removed the plywood hatch he saw sand covering the sewage, and he stated that if he had known of the problem, he would not have been involved in the purchase of the house. Both plaintiffs testified that they were unaware that they had the option of having someone inspect the house for them.
The Corneliuses testified that a member of the family notified the state health department and that the health department subsequently identified the substance under the house as sewage, issued a citation, and informed Mrs. Cornelius that the problem had to be resolved within 10 days. The plaintiffs further testified that Mr. Cornelius also telephoned Mr. Austin after the discovery of the sewage to ask if Austin knew of the sewage under the house and to ask if he would help pay the cost of the repairs. According to the Corneliuses, Austin replied that he knew of the existence of water under the house, but that he would not help with repairs.
The plumbers hired by Mr. Cornelius never determined the exact cause of the problem, according to Mr. Cornelius, but both the plumbers and the health department recommended that the plaintiffs connect the house to the city sewer system. This was done, costing the Corneliuses $2100.
The standard of review applicable to a summary judgment for a defendant in the context of these facts is set out as follows:
Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986), citing Harrell v. Reynolds Metals Co., 495 So. 2d 1381 (Ala.1986). The motion must be denied if there is a scintilla of evidence in support of the plaintiffs' claims. Kimbrel v. Mercedes-Benz Credit Corp., 476 So. 2d 94 (Ala.1985); Ray v. Montgomery, 399 So. 2d 230, 232 (Ala.1980); see A.R. Civ.P., Rule 56(c) and comments thereto.
Ala.Code 1975, § 6-5-101, states:
It follows that fraud in this context is comprised of four elements: (1) a false representation; (2) concerning a material fact; (3) that is relied upon by the plaintiffs; and (4) that causes damage to the plaintiffs as a proximate result of the reliance. Thus, whenever the defendants make a prima facie showing that one of the these elements is missing from the plaintiffs' case, the plaintiffs must present at least a scintilla of evidence that such element is present in order to survive the motion for summary judgment. Harper v. First Alabama Bank of Dothan, 514 So. 2d 1366, 1368 (Ala.1987); Bank of Red Bay v. King, 482 So. 2d 274 (Ala.1985).
In their first appeal, the Corneliuses contended that the statements of the defendants that there were "no problems" with the property constituted a false representation concerning material facts upon which they relied to their detriment. I agree that this argument is supported by the evidence. The defendants contended that at the time the telephone conversation between Mrs. Cornelius and Mrs. Austin occurred, the Austins had not been informed of the presence of water under the house. Thus, the defendants argued that there was no misrepresentation of a "material existing fact," as is required by Sly v. First National Bank of Scottsboro, 387 So. 2d 198 (Ala.1980). A "material fact" is a fact that induces action on the part of the complaining party. Harper, supra; Crigler v. Salac, 438 So. 2d 1375 (Ala.1983).
I note from the record, however, that there are no specific statements in evidence showing that the conversations between the parties occurred only before the Austins discovered the plumbing problem. The response made by Mrs. Austin that there were no problems could very well have been made subsequent to the discovery of the sewage in the crawl space, but prior to the closing. That is an issue of fact to be determined by the jury.
The defendants also contended that any statement made by Forehand was a "statement of opinion" and not actionable, in contrast to those statements in Ray, supra. In this case, the Corneliuses questioned the Austins as to the existence of any problems with the house and received a negative response when in fact the Austins knew of a problem. These representations are very different from the representations in Ray, supra, that the house was a "nice house" and was supported by "hewn pine timbers and had good support." The defendants in Ray did not know of the existence of termites in the substructure, and had treated the house for termites. Moreover, the Rays were not prevented from inspecting the crawl space under the house, as the Corneliuses were here. Further, the Rays failed to inquire about any possible problems.
Finally, the Austins contended that the plaintiffs did not "justifiably rely on the *1249 alleged misrepresentation."[1] Under the circumstances, I do not believe that the plaintiffs failed to act reasonably in attempting to protect their own interests, as required under Torres v. State Farm Fire & Cas. Co., 438 So. 2d 757 (Ala.1983). The Corneliuses inspected the property four to six times prior to the closing and did not know that they were entitled to have an independent inspector look at the house. They did not blindly trust, but rather attempted to exercise ordinary care. Regardless of whether there was standing water or raw sewage under the house, the plaintiffs were prevented from discovering the trap door in the floor of the house because the defendants had camouflaged it. Furthermore, the plaintiffs could not know what was trapped underneath the door and further concealed under the sand put there by the Austins.
The defendants additionally contended that the "Acknowledgement of Parties," a document signed by all of the parties at the closing, released the defendants from liability in this case. This document does not contain any specific language of release, however. Indeed, the signing of this document by the defendants would constitute a fraudulent misrepresentation under § 6-5-101. I note the pertinent portions of the acknowledgment:
Mrs. Austin testified that she read and understood this document prior to signing it at the closing. However, this testimony was later contradicted when the Austins testified that they did not fully read nor understand much of what was presented to them for their signatures at the closing. The "acknowledgment" quoted above placed an affirmative duty upon the sellers to inform not only the real estate agent of the existence of the water or sewage under the house, but also the purchasers. The statements that there were "no problems," when viewed in light of the acknowledgment document and the testimony that the defendants learned of the problem from four to six days prior to the closing, were, at the minimum, a fraudulent misrepresentation at the time of the closing.
Thus, viewed in the light most favorable to the Corneliuses, the record contains evidence: (1) that there was a problem with the house that was known to the Austins prior to closing; (2) that this fact was not communicated to the Corneliuses either prior to or at the closing; (3) that the Austins misrepresented that there was no problem; and (4) that this misrepresentation was relied upon by the Corneliuses to their detriment. At the very least, these facts create a jury question as to fraudulent misrepresentation.
Ala.Code 1975, § 6-5-103, states:
At the risk of being repetitious, I again point to the evidence in the record that *1250 suggests that the defendants knew from four to six days prior to the closing that there was standing water under the house (even if they did not know that in fact the water was sewage) after they had told the Corneliuses that there were no problems with the house. Further, the defendants actively attempted to conceal that problem by dumping sand under the floor to "soak up the water."
The Austins' affidavits filed in support of their motion for summary judgment show again that they knew that there was water underneath the house prior to the closing and that they had discussed the presence of the water with Ms. Forehand. These affidavits further state that the Austins had no conversations with the Corneliuses until the closing. Thus, it is obvious that the defendants knew that some problem existed under the house, and it is irrelevant whether it was standing water or raw sewage in the crawl space. In light of the prior assurances Mrs. Austin and Ms. Forehand had given Mrs. Cornelius, knowledge of these problems should have been conveyed to the Corneliuses prior to closing. At the least, this evidence provides a scintilla of evidence and requires the submission of this claim to the jury.
Ala.Code 1975, § 6-5-102, states:
Thus, to prove fraudulent suppression, a plaintiff must show (1) a duty to disclose the facts; (2) concealment or nondisclosure of material facts by the defendant; (3) inducement of the plaintiff to act, and (4) action by the plaintiff to his injury. Wilson v. Brown, 496 So. 2d 756, 759 (Ala. 1986). I note that "silence is not actionable fraud absent a confidential relationship or some special circumstances imposing a duty to disclose." Wilson, supra at 759; Cooper & Co. v. Bryant, 440 So. 2d 1016 (Ala.1983).
The Austins contend that in real estate actions this Court has consistently held that sellers do not owe a duty of disclosure to purchasers, and that there is no confidential relationship from which a duty to disclose arises. The Austins further contend that there was no concealment because, they say, they disclosed the problem to the real estate agent.
In Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala.1988), this Court stated:
529 So. 2d at 1005 (emphasis added). See also, Harrell v. Dodson, 398 So. 2d 272, 277 (Ala.1981) (Embry, J., dissenting).
I believe that the rationale of the Fennell decision is applicable to this case. The facts of this case show active suppression of material factsfacts that the defendants were under a duty to communicate. Under Cornelius I, the Corneliuses would be required to ask the agent specifically whether there was sewage or water under *1251 the house. Because Fennell was applicable at the time Cornelius I was written, both Forehand and the Austins were required to disclose any condition that would affect health or safety, where the condition was not known to or was not readily observable by the Corneliuses. The plaintiffs had already directly asked both Forehand and Mrs. Austin if there were any problems with the house and had received negative responses. In viewing this evidence most favorably to the plaintiff, I conclude that the facts present a jury question as to fraudulent suppression.
Furthermore, I cannot agree with the majority's opinion in the present appeal, which holds that there is no claim for breach of contract given the fraudulent actions of the defendants. In the original complaint and the amendments thereto, the plaintiffs contended that the "defendants contracted to deliver the premises with all plumbing and appliances in operable condition... [and] that the defendants breached that agreement [in that] there was a concealed defect in the plumbing of which the defendants had knowledge and the plaintiffs could not upon reasonable inspection have discovered."
The Austins contend that the sales contract required the purchasers to satisfy themselves, at their own expense and before closing, that all the conditions of the contract were satisfied. The Austins further argue that under the contract the conditions of the property, as well as the condition of any systems, were the responsibility of the purchaser after closing. However, the defendants also claim that the doctrine of merger applies and that it prevents the plaintiffs from alleging breach of contract. As shown by the defendants in their original briefs, the doctrine of merger applies only in the absence of fraud or mistake. Russell v. Mullis, 479 So. 2d 727, 730 (Ala. 1985); Collier v. Brown, 285 Ala. 40, 228 So. 2d 800 (1969). If the defendants acted fraudulently, then the doctrine of merger is not a defense. I would allow the jury to determine whether the Austins breached the contract.
The defendants further claim that the contract was not breached, because (1) the FHA approved the condition of the property after making inspection, and (2) the condition of the property met the FHA requirements. A review of the record reveals only the testimony of Forehand to support this contention regarding the FHA inspection. It is for the trier of fact to determine what weight to give to her testimony as to any possible FHA inspection. There is no evidence in the record substantiating this claim.
The plaintiffs, finding themselves without an action for fraud after this Court's first opinion, amended their complaint to add a count alleging conspiracy. The majority holds again that the plaintiffs have failed to establish an actionable claim. The majority bases its holding that there is no valid conspiracy claim on the reasoning that because none of the other claims is valid, "there is no actionable wrong to support it."
Conspiracy consists of a combination of two or more persons to accomplish an unlawful end or to accomplish a lawful end by unlawful means, which results in damage to the plaintiff. Sadie v. Martin, 468 So. 2d 162 (Ala.1985); Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983). There was evidence that the Austins and Forehand accomplished the sale of the residence by failing to disclose the presence of sewage under the house, and that the sale resulted in damage to the plaintiffs. At the very least, Forehand was under a duty to disclose the existence of the plumbing problem.[2]
The majority of this Court has failed to take the opportunity to correct the wrongs inflicted upon the plaintiffs and to correct bad precedent. Although I cannot affect the operation of the majority opinion of this Court in Cornelius I except by the discussion above concerning its value as precedent, I firmly believe that the plaintiffs were entitled to have a jury hear their claims, and on this appeal I would reverse the summary judgment entered in favor of the defendants.
[1] I note that "reliance" has been redefined in Hickox v. Stover, 551 So. 2d 259 (Ala.1989), an opinion that had not been decided when Cornelius I was released.
[2] I note that Ala.Code 1975, § 34-27-36(a)(3)b., requires that a licensed real estate agent be fined or reprimanded when the agent is found guilty of:
"b. Failing to disclose to a potential purchaser or lessee any latent structural defect or any other defect known to the licensee. Latent structural defects and other defects do not refer to trivial or insignificant defects but refer to those defects that would be a significant factor to a reasonable and prudent person in making a decision to purchase or lease...." | August 3, 1990 |
2a8f08f6-0b8c-4a89-8c95-e78947432ab8 | Hendley v. Springhill Memorial Hosp. | 575 So. 2d 547 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 547 (1990)
Sherrea HENDLEY
v.
SPRINGHILL MEMORIAL HOSPITAL and West Mobile Therapy Associates.
89-494.
Supreme Court of Alabama.
September 7, 1990.
*548 Richard E. Browning of Briskman, Binion & Browning, P.C., Mobile (at time of filing of original brief), and of Sherling, Browning & York, P.C., Mobile (at time of filing of reply brief), for appellant.
Wade B. Perry, Jr. and Steven J. Allen of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellees.
ADAMS, Justice.
Sherrea Hendley appeals from a partial summary judgment holding that, at all pertinent times, defendant Jack Sands was not an agent of either of the movants, but, rather, was an independent contractor. On December 1, 1989, the circuit court heard the arguments and considered the briefs and supporting evidentiary materials filed by the parties. The circuit court granted a partial summary judgment in favor of Springhill Memorial Hospital ("Springhill") and West Mobile Therapy Associates ("West Mobile"). The court's well-reasoned opinion stated, in part:
We affirm.
Hendley alleged that Sands represented himself as an agent of Springhill and performed an unauthorized vaginal examination on her. Sands was a vendor of "TENS" units through his company, Electro-Med, Inc. TENS units provide pain relief to patients by delivering electrical stimulation through electrodes attached to indicated areas of the body. Whenever a TENS unit was prescribed, Sands would make rounds to establish if the unit was functioning properly by checking the battery strength and modality settings. If a patient indicated that a unit was not providing proper relief, Sands would make the necessary adjustments to the unit or replace the electrodes. In order for a patient to be eligible for a TENS unit treatment, a doctor had to make a recommendation to the physical therapy department. In order for Springhill to provide this service, a contractual agreement was entered between Springhill and West Mobile that gave West Mobile the exclusive right to provide physical therapy services at Springhill. An additional provision in the contract required West Mobile to maintain a listing in the telephone book that read "Physical Therapy Department" of Springhill. On a daily basis, a report of billings generated as a result of physical therapy provided by West Mobile was submitted to Springhill. West Mobile was then paid a flat rate of 40% of the submitted figure. Springhill provided the space for West Mobile in the hospital and on the door was a sign reading "Physical Therapy Department." Sands, as the sole provider of TENS units, billed the hospital on a one-time flat fee each time a patient was given a TENS unit treatment. This charge was then passed on to the patient as part of his or her overall bill.
There was no written employment contract between Sands and Springhill or Sands and West Mobile. No personnel file on Sands existed at either the hospital or at West Mobile's place of business, and while in the hospital Sands usually appeared in a business suit with no form of identification. Whenever a physician prescribed a TENS unit treatment, Sands would bill the hospital directly for service rendered and equipment supplied, at a flat per-use fee of $59.30.
On a normal day, Sands would go into the physical therapy department and check the in-patient board to see who was equipped with or was in need of a unit. Sands's equipment was stored in a file cabinet located in the physical therapy department. Sands testified that he was obligated to have a nurse accompany him into the room of a female patient and to be supervised for the duration of the visit. Sands was to approach the nurse's station and inform the nurses that he was going into the room and would be in need of an escort.
Hendley was admitted to Springhill as an in-patient in January 1988. Because of the pain Hendley was experiencing in her coccyx (tailbone), her physician prescribed a TENS unit treatment. On January 23, 1988, Sands entered Hendley's room to check on the unit, only to discover that the *550 unit was not functioning properly. There is conflicting testimony as to what subsequently transpired. Hendley testified as follows:
Sands denied that any unauthorized vaginal touching occurred. Later on in the day, Hendley started getting suspicious about Sands's activities and began to question the hospital personnel. After realizing that it was an unauthorized exam, she informed the hospital of the incident. She notified her husband of the alleged incident and he contacted the police.
Two issues are presented on appeal: (1) whether the trial judge erred by ruling, as a matter of law, that no agency relationship existed between Sands, West Mobile, and Springhill, and (2) whether the trial court erred by ruling, as a matter of law, that, even assuming an agency relationship, the actions of Sands were outside the line and scope of his employment.
With respect to the first issue, we pretermit any discussion, because, even if an agency relationship existed between the parties, the alleged act would have been such a deviation from the line and scope of employment as to render Springhill and West Mobile not liable.
To recover against a defendant under the theory of respondeat superior, it is necessary for the plaintiff to establish the status of employer and employeemaster and servantand to establish that the act was done within the scope of the employee's employment. Wells v. Henderson Land & Lumber Co., 200 Ala. 262, 76 So. 28 (1917). Thus, the determinative question becomes whether the act committed by the employee was done while acting within the line and scope of his employment. If it is determined that the employee was not acting within the scope of his employment, then there can be no recovery under the doctrine of respondeat superior.
It is a general rule that where an employee abandons his employer's business for personal reasons the employment is suspended and the employer is not liable for the actions of the employee during the temporary lapse in employment and during the time of the employee's absence from the employer's business. Land v. Shaffer Trucking, Inc., 290 Ala. 243, 275 So. 2d 671 (1973). A tort committed by an agent, even if committed while engaged in the employment of the principal, is not attributable to the principal if it emanated from wholly personal motives of the agent and was committed to gratify wholly personal objectives or desires of the agent. Plaisance v. Yelder, 408 So. 2d 136 (Ala.Civ.App.1981). If there is any evidence in the record tending to show directly, or by reasonable inference, that the tortious conduct of the employee was committed while the employee was performing duties assigned to him, then it becomes a question for the jury to determine whether the employee was acting from personal motives having no relationship to the business of the employer. Plaisance, 408 So. 2d at 137. However, in Avco Corp. v. Richardson, 285 Ala. 538, 234 So. 2d 556 (1970), this Court noted that in cases where a servant's deviation from the master's business is slight and not unusual, a court may determine, as a matter of law, that the servant was still executing the master's business. On the other hand, with a very "marked and unusual" deviation, the court may determine that the servant is not on his master's business at all. Cases falling between these two extremes must be regarded as involving a question of fact to be left to the jury. In this case, *551 Sands, if he committed the alleged vaginal examination, "acted from wholly personal motives having no relation to the business." Plaisance, 408 So. 2d at 137. Furthermore, such a deviation from his duties necessarily would have been "marked and unusual."
In Great Atlantic & Pacific Tea Co. v. Lantrip, 26 Ala.App. 79, 153 So. 296 (1934), the Alabama Court of Appeals held that a sexual advance made, by a store clerk while waiting on the plaintiff was "entirely personal ... and was wholly aside from the master's business," even though the act was done during the employment of the employee by the defendant. Alabama jurisprudence is consistent with federal jurisprudence. In Grimes v. B.F. Saul Co., 60 App.D.C. 47, 47 F.2d 409 (1931), the court held that a defendant corporation could not be held liable for a rape committed upon a tenant of an apartment building owned by the corporation where the rape was committed while the defendant employee was making certain inspections of the building. The court concluded that the employee's act was "an independent trespass of the agent, utterly without relation to the service which he was employed to render for the defendant." Id., 60 App. D.C. at 48, 47 F.2d at 410. The Court reasoned as follows:
The alleged examination is such a gross deviation from the purpose for which Sands was in Hendley's room (monitoring her TENS unit), that the conduct cannot be attributed to Springhill or West Mobile by application of the doctrine of respondeat superior. Accordingly, the partial summary judgment in favor of Springhill and West Mobile must be affirmed.
AFFIRMED.
MADDOX, ALMON and STEAGALL, JJ., concur.
HORNSBY, C.J., concurs in the result. | September 7, 1990 |
97400c57-a931-4e21-a312-0bfa9a368a6e | Johnny Spradlin Auto Parts, Inc. v. Cochran | 568 So. 2d 738 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 738 (1990)
JOHNNY SPRADLIN AUTO PARTS, INC.
v.
Bobby COCHRAN, individually and d/b/a Cochran Auto Parts.
89-174.
Supreme Court of Alabama.
August 31, 1990.
*739 George W. Witcher, Jr. and Fred Blanton, Jr., Gardendale, for appellant.
Michael J. Crow of Beasley, Wilson, Allen, Mendelsohn & Jemison, Montgomery, for appellee.
ALMON, Justice.
This appeal arises from an action based on allegations of fraud, negligence, and wantonness that was filed by Bobby Cochran against Johnny Spradlin Auto Parts, Inc. ("Spradlin"). The jury returned a verdict awarding Cochran $15,200, and the trial court entered a judgment on that verdict. Spradlin argues that the evidence was insufficient to support the verdict, that the amount of damages was improper, and that the court erred in instructing the jury.
In October 1985, Spradlin purchased a 1983 Chevrolet Camaro automobile, Vehicle Identification Number ("V.I.N.") 1G1AP871XDN142905 ("142905"), from Auto Salvage Pool, Inc. The vehicle had been declared a total loss because it had been stripped of all removable parts. For that reason, Spradlin received a salvage certificate of title[1] from Allstate Insurance Company. Subsequently, Spradlin purchased, and received a regular title to, another Camaro, a 1986 model, V.I.N. 1G1FP87FOGL139254 ("139254"), which had been moderately damaged in a wreck.
Alan Spradlin ("Alan"), an employee of Spradlin, used the two Camaros to rebuild a single Camaro for Jim Lowery. The 1986 Camaro had been struck on the right front quarter and therefore had damage to the unitized body in that area. Alan testified that he removed the unitized body from the 1986 and replaced it with that from the 1983 rather than cutting out the damaged front quarter and welding in replacement parts; he testified that this procedure resulted in a more structurally sound vehicle. He described the process as follows: he removed the seats, dashboard, and interior trim from the 1986; removed the hood, the rear hatch lid, and other body parts; and cut off the roof where it was spot-welded to the body. After removing these parts, he lifted the unitized body off the drive train and placed the unitized body from the 1983 onto the drive train of the 1986. He then replaced the 1986 parts that he had *740 removed, repaired the right front fender, the hood, and the bumper, and had the car painted.
Because the 1983 vehicle had been declared a total loss, the Department of Revenue had removed the public V.I.N. plate from the cowling under the windshield. When Alan placed that portion of the 1983 onto the drive train of the 1986, he removed the public V.I.N. plate from the discarded body of the 1986 and riveted it to the place on the 1983 body from which the plate had been removed. Spradlin sold the rebuilt Camaro as a 1986 model for $11,000 to Jim Lowery, transferring the certificate of title that it had obtained with the 1986 car. Lowery obtained from State Farm Mutual Automobile Insurance Company an insurance policy describing the car as a 1986 model. About a year later, Lowery died in a fire at his home that also damaged the Camaro. Based upon that damage, State Farm paid benefits to Lowery's estate in the amount of $12,496.80 and title to the Camaro was transferred to State Farm.
In 1988 Cochran, doing business as Cochran Auto Sales, purchased the Camaro for $2,100 from State Farm at an auction and, because the car had been badly damaged in the fire at Lowery's house, received a salvage title, which indicated that the car was a 1986 model. Cochran repaired and refurbished the vehicle and made an application with the Alabama Department of Revenue for a new title. Sid Blair, who inspected the car for the Department, noticed that the public V.I.N. plate was not attached with the standard manufacturer's rivets. He performed a more thorough inspection and discovered that the engine, transmission, and public V.I.N. plates had the 1986 number 139254, but that the confidential number on the body was the 1983 number 142905. He therefore refused to issue a new title to Cochran.
Cochran communicated the problem to Alan Spradlin, who filed an administrative appeal of the decision not to issue a certificate of title to the car. On March 15, 1989, after Cochran had filed this action against Spradlin, the Department of Revenue issued a title based on Alan's testimony in the administrative hearing. Instead of allowing the 1986 V.I.N. plate to remain in place, however, the Department removed it and issued a state assigned number, which was placed on the door jamb of the car. The certificate of title gave that assigned number, AL86AN00300004207, as the vehicle identification number, and stated, "this title secured under a three year surety bond" (see Ala.Code 1975, § 32-8-36).
Cochran's action against Spradlin and State Farm alleged breach of contract, three counts of fraud (counts two, three, and four), and breach of warranty of title. Pursuant to a pro tanto agreement between State Farm and Cochran, State Farm was dismissed. Cochran amended his complaint to add a sixth count, alleging that Spradlin had negligently or wantonly removed the 139254 V.I.N. plate from the body of the 1986 Camaro and placed it on the 1983 body, and that, as a result, he was damaged because the car was of a lesser value than it appeared to have when he purchased it, because he had spent a great amount of money repairing a vehicle that was worth less than it would have been if it had had a valid title, and because he had spent time and effort in obtaining a valid title.
Spradlin filed a motion to strike the breach of contract and breach of warranty counts, which was granted, and the case proceeded to trial on the fraud counts and the negligence and wantonness count. At the conclusion of the case, Spradlin made an oral motion for a directed verdict as to count three, which alleged fraudulent suppression of material facts concerning the Camaro. In support of the motion, Spradlin's attorney argued that there was insufficient proof that Spradlin had suppressed material facts that it was under a duty to disclose to Cochran. The trial court denied the motion and submitted all three fraud counts and the count for negligence or wantonness to the jury. The jury returned a general verdict in favor of Cochran and assessed $5,200 compensatory damages and $10,000 punitive damages. The trial court entered judgment on that verdict.
*741 Spradlin raises the following issues: (1) whether the trial court erred in entering judgment on the verdict because "there was insufficient evidence to support the verdict on each count"; (2) whether the trial court erred in denying Spradlin's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial "based upon the lack of sufficient evidence to support the verdict on count three of the complaint which was challenged by the motion for a directed verdict"; (3) whether the amount of compensatory damages was supported by the evidence; (4) whether the award of punitive damages "was a legal award based upon the applicable law of Alabama"; and (5) whether the trial court erred in giving several of Cochran's requested jury instructions over Spradlin's objections.
An appellant who seeks reversal of an adverse judgment on the ground that there is insufficient evidence must meet a two-pronged test: he must have asked for a directed verdict at the close of all the evidence, specifying "insufficiency of the evidence" as a ground, and he must have renewed this motion by way of a timely filed motion for judgment notwithstanding the verdict that again specified the same insufficiency-of-the-evidence ground. Rule 50, Ala.R.Civ.P.; King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714 (Ala.1987); Bains v. Jameson, 507 So. 2d 504 (Ala.1987). "[I]f a complaint has more than one count and the defendant believes that the evidence is not sufficient to support one or more of those counts, he must challenge this by motion for directed verdict, specifying the count which is not supported by evidence and detailing with specificity the ground upon which the particular count is not supported by the evidence." Aspinwall v. Gowens, 405 So. 2d 134 (Ala.1981).
Spradlin first argues that it was entitled to a j.n.o.v., even though it made no motion for a directed verdict on counts two, four, and six, because, it says, there was insufficient evidence to support any of the four counts that were submitted to the jury. This attempt to distinguish this case from Aspinwall overlooks the more general rule that, in order to raise insufficiency of the evidence on appeal, the appellant must have raised that ground in both a motion for directed verdict and a motion for j.n.o.v. Spradlin did not even make a general motion for directed verdict on all counts or make a general statement that the evidence was insufficient to submit the case to the jury, much less argue to the trial court how counts two, four, and six were supposedly not supported by the evidence. Thus, Spradlin has not preserved the question of the sufficiency of the evidence in support of those counts, and his first argument does not present any basis for reversal of the judgment.[2]
Count three alleged that Spradlin suppressed the material fact that the Camaro "was not a 1986 Chevrolet Carmaro V.I.N. [139254]." Alabama 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." See Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala.1987); Hopkins v. Lawyers Title Ins. Corp., 514 So. 2d 786 (Ala. 1986).
Spradlin argues that there was no evidence that it suppressed any material fact that it had a duty to disclose. Cochran responds that the fact of the substitution of the 1986 V.I.N. plate into the place of the 1983 was a material fact that Spradlin suppressed. He testified that he would not *742 have been interested in the car if it had not had the 1986 V.I.N. plate:
Even Alan Spradlin admitted that the V.I.N. plate was important in determining the value of an automobile and that a car without good V.I.N. plates would bring less money:
Alan's replacement of the 1986 V.I.N. plate constituted a suppression of the fact that the car was not what the V.I.N. plate represented it to be, that is, a 1986 Camaro with a factory-installed V.I.N. plate. The significance of the suppression is illustrated by Cochran's remark that, once the factory-installed public V.I.N. plate is removed, "you can never get it put back there"; by Alan's admission that a car with an assigned plate "would bring less money"; and by the fact that, once it knew the details of Spradlin's work on the car, the Department of Revenue did not allow the V.I.N. plate to remain on the car, but placed one of its assigned plates on the door jamb. Thus, by riveting the 1986 plate into the place where the 1983 plate had been, Alan suppressed a material fact concerning the car.
Spradlin argues that it had no duty to disclose anything about the car to anyone other than Lowery, and that Lowery knew what was done because he periodically observed the progress of the repairs. Cochran responds by citing Sims v. Tigrett, 229 Ala. 486, 158 So. 326 (1934), which rejected a similar claim that an action for fraud could not be maintained because any representation made by the defendant was not made to the plaintiff:
229 Ala. at 491, 158 So. at 330. See also Kirkpatrick v. White, 289 Ala. 110, 266 So. 2d 268 (1972); Hulsey v. M.C. Kiser Co., 21 Ala.App. 123, 105 So. 913 (1925).
The Alabama Uniform Certificate of Title and Antitheft Act, Ala.Code 1975, § 32-8-1 et seq. ("the Act"), provides for the issuance by the state of certificates of title and defines offenses relating to falsification of such certificates or vehicle identification numbers. Section 32-8-86 states in part:
(Emphasis added.)
Thus, without authorization from the Department of Revenue, Spradlin was prohibited from removing the V.I.N. plate from the discarded 1986 body and placing or restoring it on the portion of the 1983 body that he had combined with the parts from the 1986 model. Under the circumstances of this case, the Act imposes a duty on Spradlin to disclose to the Department of Revenue the facts concerning the substitution of the V.I.N. plate.
Spradlin contends that Cochran cannot use the Act to show special circumstances requiring disclosure for Cochran's benefit, because, it contends, the Act was promulgated only to protect against automobile theft and does not provide protection against the kind of harm Cochran alleges. He cites Treadwell Ford, Inc. v. Campbell, 485 So. 2d 312 (Ala. 1986), appeal dismissed, 486 U.S. 1028, 108 S. Ct. 2007, 100 L. Ed. 2d 596 (1988), in support of that proposition. In Treadwell this Court held that an insurer's violation of § 32-8-87(b) would not support an action alleging that a motor vehicle accident was proximately caused by that violation. The Court held that the plaintiff could not use that section to prove negligence as a matter of law because he was not in the class of persons sought to be protected by the statute, which was enacted to protect owners of vehicles from thefts, not to require safety inspections. The facts of this case are distinguishable from those in Treadwell.
This case, unlike Treadwell, presents facts within the purpose of the Act. This is not an attempt to make the Act provide for safety. The mechanism by which the Act protects against thefts is an encompassing system of tracing automobiles and their component parts. "The overall plan of the Act shows exclusive attention to maintaining records of the identity and ownership of vehicles." Treadwell at 318. Persons who buy cars are entitled to rely on the accuracy of such elements of that tracing system as certificates of title and V.I.N. plates. Cochran, as a subsequent purchaser of the car, is within the class of persons who are the beneficiaries of the duty not to falsify identification numbers or certificates of title and so can claim both that the circumstances imposed a duty on *744 Spradlin to disclose, see Crowder, supra, and Hopkins, supra, and that that duty inured to his benefit, see Sims, supra, and Kirkpatrick, supra.
For the reasons stated, the trial court did not err in submitting count three to the jury or in denying Spradlin's motion for j.n.o.v. on that count. Furthermore, the evidence discussed above is sufficient to show that there was significant credible evidence supporting the verdict on count three. Therefore, the trial court did not err in denying Spradlin's motion for a new trial on count three based on the claim that the verdict was against the great weight and preponderance of the evidence. Thus, Spradlin's second argument presents no basis for reversal.
Spradlin's third argument is that the evidence did not support the amount of compensatory damages awarded. Spradlin raised this issue in its motion for a new trial. It points to testimony by Cochran that the 1986 engine and transmission were worth the $2100 he paid for the car at the auction. However, Cochran also testified that the car could have been sold for $9000 to $9500 if the title had been as it appeared to be and that, shortly before trial, the car had brought a bid of only $3800 at an auction. The award of $5200 therefore appears to be the difference between his lower estimate of the value the car should have had and the value it had with the assigned number and the certificate of title that the Department of Revenue had issued after Spradlin's appeal.
Generally, when a purchaser alleges misrepresentation and does not offer to return the item purchased and rescind the sale, his measure of damages is the difference between the value of the item as represented and its actual value. Cahaba Valley Dev. Co. v. Nuding, 512 So. 2d 46 (Ala.1987); Boriss v. Edwards, 262 Ala. 172, 77 So. 2d 909 (1954). "This measure essentially gives the person fraudulently induced into the purchase the `benefit of the bargain.'" Reynolds v. Mitchell, 529 So. 2d 227 (Ala.1988). Although the test is usually to be applied to the values at the time of the sale, Cochran did not discover the misrepresented title until he had expended his labor and money in restoring the car to working condition. Under the circumstances, and especially because Spradlin did not object to Cochran's testimony as to value or seek to present evidence of difference in value at the time of his purchase, we will not reverse the denial of new trial on this ground.
Spradlin argues that the award of punitive damages was improper. He again bases his argument on his contention that there was no evidence of a misrepresentation on which Cochran relied in purchasing the car at auction. That premise has been rejected above.
Curry Motor Co. v. Hasty, 505 So. 2d 347, 351 (Ala.1987) (citations omitted); Big Three Motors, Inc. v. Smith, 412 So. 2d 1222 (Ala.1982). Also, the wantonness aspect of count six would support an award of punitive damages. Foster v. Floyd, 276 Ala. 428, 163 So. 2d 213 (1964).
Spradlin knew or should have known that by placing the 1986 V.I.N. plate on the car it was representing that the Camaro was a 1986 model with an ordinary title and identification numbers and that subsequent purchasers might rely on the validity of that representation. Alan's testimony regarding his knowledge of procedures for having the Department of Revenue inspect rebuilt salvage vehicles and of the diminution in value of vehicles with assigned numbers instead of V.I.N. plates is sufficient evidence to support the award of punitive damages under a finding of fraudulent misrepresentation or of wantonness. Therefore, the award of punitive damages will not be disturbed.
Spradlin also urges this Court to reverse the judgment because the trial court gave several requested jury instructions, over its objections. It argues that *745 instructions 13, 15, 16, 23, and 29 were not based on facts adduced at the trial. An instruction is not objectionable as being abstract if there is any evidence, however slight, on which to predicate the charge. Cooper v. Bishop Freeman Co. 495 So. 2d 559 (Ala. 1986). The arguments are premised on Spradlin's contentions that it did not make any representations on which Cochran relied, that its actions were not taken with the intent necessary to support punitive damages, and that Cochran was not damaged by any act of Spradlin's. Those contentions have been rejected above and, similarly, they do not support Spradlin's argument here.
Spradlin also argues that the court erred in giving instruction number 34, which charged on the effect of § 32-8-87(f). Spradlin argues only that the charge should not have been given because, he argues, the Alabama Uniform Certificate of Title and Antitheft Act does not protect persons such as Cochran or support a finding under count six of negligence as a matter of law, citing Treadwell Ford v. Campbell, supra. As we have explained above, the allegations of this case come sufficiently within the purpose of that Act to distinguish this case from Treadwell.
In reviewing a trial court's instructions to a jury, an appellate court must read and consider the charge as a whole in determining whether the instructions correctly set forth the applicable law. Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). Viewing the charge as a whole, we hold that Spradlin's arguments do not present any ground for reversal based on the giving of the requested instructions.
For the foregoing reasons, the judgment in favor of Cochran is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] A salvage certificate of title is issued for a car that an insurance company has declared to be a total loss because it is cheaper to replace the automobile than to repair it. See Ala.Code 1975, § 32-8-87.
[2] Count two alleged that Spradlin willfully or recklessly misrepresented that the vehicle was a 1986 Camaro, V.I.N. 139254, and count four alleged that, by concealing the fact that the vehicle "was not a 1986 Chevrolet Camaro V.I.N. [139254]" Spradlin "consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to Plaintiff in deceiving him." The resolution of the questions of the sufficiency of the evidence to support count three and the appropriateness of the award of punitive damages will effectively resolve Spradlin's arguments as to counts two and four. Similarly, Spradlin's arguments with respect to count six are effectively addressed in response to other arguments. | August 31, 1990 |
66f5b6d7-de2c-4483-a43e-c12542947d76 | Burch v. LAKE FOREST PROPERTY OWNERS'ASS'N | 565 So. 2d 611 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 611 (1990)
Joseph BURCH
v.
LAKE FOREST PROPERTY OWNERS' ASSOCIATION, INC.
89-403.
Supreme Court of Alabama.
July 13, 1990.
Eason Mitchell, Alabaster, for appellant.
Robert S. Edington, Mobile, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment in favor of Lake Forest Property Owners' Association, Inc. ("the Association"), in a suit brought by Joseph Burch, who alleged that he was terminated as the Association's general manager and golf professional, without the 45-day notice required by his contract. He alleged that that termination, therefore, resulted in a breach of his contract.
Burch contends that when he negotiated his contract to become the general manager *612 and "golf pro" for the Association, he insisted that a provision for a 45-day notice of termination be included. The contract provided for employment for a period of two years; however, it contained a termination clause. That clause reads as follows:
Despite the notice clause, which was added pursuant to his wishes, Burch was terminated without notice. The Association, recognizing that the notice provision had been violated, paid Burch for the 45 days that he would have worked if the contract had been complied with and gave him all the benefits to which he would have been entitled during that 45-day period.
Despite the fact that Burch was compensated for the 45 days he would have been employed had the Association complied with the notice provision, Burch contends that he is entitled to payment for the entire contract period of two years.
Curacare, Inc. v. Pollack, 501 So. 2d 470, 472 (Ala.Civ.App.1986), cert. quashed, 501 So. 2d 472 (Ala.1986). If the Association had fully performed the provisions of the contract, Burch would have received compensation for 45 days as well as all of the privileges afforded the general manager and golf pro of the Association. All of these things were given to him, despite the fact that he was not allowed to "remain on the job" for those 45 days.
Annot., 96 A.L.R.2d 272, 277 (1964). We conclude that the violation of the notice provision does not entitle Burch to compensation for the entire contract period. Because the Association had already compensated him for the notice period provided in the contract, summary judgment was proper. Therefore, that judgment is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | July 13, 1990 |
9645e8c0-367e-40cd-be66-865d22d48d77 | Smith v. Arrow Transp. Co., Inc. | 571 So. 2d 1003 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1003 (1990)
Betty Ruth SMITH
v.
ARROW TRANSPORTATION COMPANY, INC., and Mel Bailey, as Sheriff of Jefferson County.
89-572.
Supreme Court of Alabama.
September 7, 1990.
Rehearing Denied December 14, 1990.
*1004 J.N. Holt of Holt, Cooper & Upshaw, Birmingham, for appellant.
Ralph H. Smith and Michael L. Hall of Johnston, Barton, Proctor, Swedlaw & Naff, Birmingham, for appellees.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of the defendants/counter-claimants, Arrow Transportation Company, Inc. ("Arrow"), and Mel Bailey, sheriff of Jefferson County, and against the plaintiff/counter-defendant, Betty Ruth Smith, in an action to quiet title.[1]
There are a number of conveyances, alleged conveyances, and other transactions that directly affect each party's interest in the subject property, which consists of a residential lot and house. Those events are briefly summarized below. A table with the dates of the relevant transactions follows that summary.
Betty married Charles Ross Smith on April 15, 1982. Prior to that marriage she had purportedly executed a contract to purchase the property. That contract was not recorded, and when a deed was executed purportedly pursuant thereto, title to the property was not taken in Betty's name, but was instead taken in the name of Trico *1005 Fuels, Inc. ("Trico"), a corporation operated by Charles's family. Nonetheless, Betty entered into, and remained in, possession of the property at all times relevant to this appeal. Betty alleges that title to the property was put in Trico's name as a "safeguard" until she and Charles were sure that their marriage would be successful. She also alleges that once the marriage proved to be a success the property was to be conveyed to her. She contends that this agreement between her, Charles, and Trico was evidenced by the inscription of her initials "B.R.H." next to Trico's name as grantee on the deed.[2] That deed was properly recorded.
Trico remained the record owner of the property for more than two and one-half years after that deed was recorded. During that period Arrow obtained a judgment against Trico and recorded a certificate of judgment in Real volume 2533 in the Jefferson County probate court. After the certificate of judgment was recorded, a deed that indicated that Trico had conveyed the property to Charles was recorded. Six months later, another deed, showing a conveyance from Charles and Betty to each other as joint tenants with right of survivorship, was recorded.
Trico later filed a bankruptcy petition. An order of stay was entered by the bankruptcy court to protect Trico's assets from creditors. Arrow filed a motion in the bankruptcy court for relief from stay so that it could exercise its rights against the property as a judgment creditor. Arrow's motion was granted. An execution on Arrow's judgment against Trico was issued and the sheriff scheduled a sale of the property. Betty filed this action to quiet title to the property, and Arrow filed an answer and counterclaim to quiet title. The property was sold to Arrow as the highest bidder and that corporation recorded a sheriff's deed. Summary judgment was later entered in favor of Arrow.
Betty argues that there was evidence that Arrow was not a judgment creditor or purchaser without notice of an adverse claim to the property and, therefore, that summary judgment was not proper. She advances two arguments to support that contention. In order for us to address those arguments, we must review the relevant statutes regarding the recordation of deeds and other instruments affecting title to real property, as well as the effect that the proper recordation of a certificate of judgment has on the defendant's property.
Ala.Code 1975, § 35-4-90 (emphasis added). A deed that is unrecorded is good between the grantor and grantee, but is void against bona fide purchasers for value, mortgagees, and judgment creditors without notice. Alexander v. Fountain, 195 Ala. 3, 70 So. 669 (1916). Therefore, if a judgment creditor without notice perfects a lien against the property, he is protected against subsequently recorded instruments, regardless of the date of execution or delivery of those other instruments. Johnson v. Haleyville Mobile Home Supply, Inc., 477 So. 2d 328 (Ala.1985).
Ala.Code 1975, § 6-9-210, sets out the procedure for recording a certificate of judgment. Betty does not contend that Arrow failed to comply with the requirements of that statute. The effect that properly filing a certificate of judgment has on the defendant's property is set out in § 6-9-211:
(Emphasis added.) The recording of a certificate of judgment creates a blanket lien on all of the property of the defendant that is located in the county of recordation and is subject to levy and sale. Kiker v. Nat'l Structures, Inc., 342 So. 2d 746 (Ala.1977); Shrout v. Seale, 287 Ala. 215, 250 So. 2d 592 (1971); Second National Bank v. Allgood, 234 Ala. 654, 176 So. 363 (1937). The judgment creditor's rights in the property attach upon the act of recording the certificate of judgment and have priority over all rights arising out of subsequently recorded instruments. Johnson, supra; Reuf v. Fulks, 219 Ala. 252, 122 So. 14 (1929); Goodbar & Co. v. Blackwell, 170 Ala. 232, 54 So. 532 (1911); Galloway v. State ex rel. Payne, 371 So. 2d 48 (Ala.Civ.App.1979).
In order for a judgment creditor to have priority over a prior executed deed, it must be shown that the creditor's rights accrued before the prior executed deed was recorded and that he did not have notice of the deed at the time of the judgment. Johnson, supra; Goodbar & Co., supra; Hall v. Griffin, 119 Ala. 214, 24 So. 27 (1898). The burden of proof is on the person holding under an unrecorded deed to show notice in order to defeat the rights of the judgment creditor. Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101 (1926).
It is not disputed that Arrow recorded its certificate of judgment before the deeds that purportedly transferred the property from Trico to Betty and Charles were recorded. Therefore, unless Betty could present evidence that Arrow had actual or constructive notice of her claim to the property, Arrow would be entitled to a judgment as a matter of law. Sadie v. Martin, 468 So. 2d 162 (Ala.1985). Because Betty's complaint was filed after June 11, 1987, she must have produced "substantial evidence" that showed the existence of a genuine issue of material fact in order to defeat Arrow's motion for summary judgment. Ala.Code 1975, § 12-21-12(d); Posey v. Posey, 545 So. 2d 1329 (Ala.1989).
Betty puts forth two arguments in support of her contention that Arrow had at *1007 least constructive notice of her claim to the property: (1) she contends that her continuous possession of the property, from 1982 until the present, gave Arrow actual or constructive notice that she claimed an interest in the property; or (2) she argues that the inscription of the initials "B.R.H." on the 1982 deed to Trico gave Arrow actual or constructive notice that someone other than Trico claimed an interest in the property.
As a general rule, where a third party is in possession of the premises, a purchaser of those premises or a judgment creditor is charged with constructive notice of the nature of the third party's title. Gamble v. Black Warrior Coal Co., 172 Ala. 669, 55 So. 190 (1911). However, as this Court stated in Lightsey v. Stone, 255 Ala. 541, 547, 52 So. 2d 376, 381 (1951):
(Emphasis added.) See Pake v. Lindsey Mill Co., 208 Ala. 569, 94 So. 573 (1922); Holly v. Dinkins, 202 Ala. 477, 80 So. 861 (1919); Autauga Banking & Trust Co. v. Chambliss, 200 Ala. 87, 75 So. 463 (1917); Sloss-Sheffield Steel & Iron Co. v. Taff, 178 Ala. 382, 59 So. 658 (1912); Christopher v. Curtis-Attalla Lumber Co., 175 Ala. 484, 57 So. 837 (1912); Langley v. Pulliam, 162 Ala. 142, 50 So. 365 (1909); O'Neal v. Prestwood, 153 Ala. 443, 45 So. 251 (1907); Kindred v. New England Mortgage Security Co., 116 Ala. 192, 23 So. 56 (1897); Munn v. Achey, 110 Ala. 628, 18 So. 299 (1895); Motley v. Jones, 98 Ala. 443, 13 So. 782 (1893); and McCarthy v. Nicrosi, 72 Ala. 332 (1882).
For more than two years before Arrow recorded its certificate of judgment, both Trico, as the record owner of the property, and Betty, as the occupier of the property, were in joint possession of the property. Betty's possession was attributable to the ownership of the property by the corporation owned by her husband's family and therefore did not unambiguously serve as notice of a claim by her that was inconsistent with the recorded title in Trico's name. The only deed conveying an interest to Betty was not recorded until almost one year after Arrow had recorded its certificate of judgment. At the only relevant time, the date that Arrow recorded its certificate of judgment, there had been no visible change of possession or "any visible act ... calculated to put [Arrow] on inquiry" as to Betty's possible claim. Therefore, her possession could not operate as notice. Lightsey, supra. See First Nat'l Bank of Birmingham v. Culberson, 342 So. 2d 347 (Ala.1977); Wiggins, supra; Autauga Banking & Trust Co. v. Chambliss, 200 Ala. 87, 75 So. 463 (1917); Harris v. Hanchey, 192 Ala. 179, 68 So. 276 (1915); O'Neal v. Prestwood, 153 Ala. 443, 45 So. 251 (1907); McCarthy v. Nicrosi, 72 Ala. 332 (1882).
Betty's second argument is based on the inscription of the initials "B.R.H." following the grantee clause in the 1982 deed to Trico. She contends that those initials gave Arrow notice that someone other than Trico had a claim to the property. In his order, the trial judge rejected that argument, stating:
We agree. A basic rule of construction of deeds is that when subsequent words or *1008 markings are of doubtful import, they cannot be construed so as to contradict preceding words that are certain. Johnson v. Harrison, 272 Ala. 210, 130 So. 2d 35 (1961); Kettler v. Gandy, 270 Ala. 494, 119 So. 2d 913 (1960). In the instant case the deed unambiguously named Trico as the grantee. The handwritten initials following that clause are certainly of "doubtful import" and cannot be used to contradict the clear meaning of the deed. Id. Those initials, standing alone, do not constitute substantial evidence of Betty's claim to the property and could not defeat Arrow's motion for summary judgment. Posey v. Posey, 545 So. 2d 1329 (Ala.1989).
After reviewing the record, this Court agrees that Betty did not present sufficient i.e., "substantial"evidence showing that Arrow had constructive notice of her claim to the property. Arrow was therefore entitled to a judgment as a matter of law. The summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Although Arrow's present corporate name is Merchants Transportation, Inc., we will refer to the corporation as Arrow in order to maintain consistency with the trial record. Mel Bailey, the sheriff of Jefferson County, was also named as a defendant in Betty's complaint in an additional count requesting a permanent injunction against the levy and sale of the subject property. However, Bailey's involvement in this case was minimal, and he has not filed an appellee's brief.
[2] Betty's maiden name was Betty Ruth Harper, hence the initials "B.R.H." | September 7, 1990 |
b15fd33d-7eaf-4053-ad01-1ed02321eb54 | Home Indem. Co. v. EMPLOYERS NAT. INS. CORP. | 564 So. 2d 945 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 945 (1990)
The HOME INDEMNITY COMPANY
v.
EMPLOYERS NATIONAL INSURANCE CORPORATION.
88-1467.
Supreme Court of Alabama.
July 13, 1990.
Harry Cole of Hill, Hill, Carter, Franco, Cole & Black, Montgomery, and De Martenson of Huie, Fernambucq & Stewart, Birmingham, for appellant.
Robert R. Kracke and Tom E. Ellis of Kracke, Thompson & Ellis, Birmingham, for appellee.
ADAMS, Justice.
This is an insurance case wherein an excess insurer, Employers National Insurance Corporation (hereinafter "Employers") sued a primary insurer, The Home Indemnity Company (hereinafter "Home Indemnity"), seeking reimbursement in the amount of $1,071,766.97, plus interest, for a settlement made with a third party on a personal injury claim filed against its insureds. Summary judgment was entered in favor of Employers; Home Indemnity appeals, claiming that summary judgment was improper because, it argues, its limit of liability was $500,000.
The following facts are necessary for a determination of the case: In January 1985, Grady Daniel Jordan, an employee of B.E. & K. Construction Company, Inc., was injured on a construction project at the International Paper Company plant in Mobile. Thereafter, he sued Alan Jones, Geno McRae, and Randy Cullar, supervisory employees of B.E. & K.; International Paper Company; Angelo LaCara, Jr., a supervisory employee of International Paper; The Home Insurance Company; and several fictitiously named parties. These parties were the named insureds of Home Indemnity as primary insurer and of Employers as *946 an excess insurer. As a result of his injuries, Jordan claimed damages in the amount of $5,000,000. Prior to trial, however, Home Indemnity offered $500,000 in settlement, asserting that its policy provided for a $500,000 limit on liability, in the aggregate, per occurrence, regardless of the number of insureds named in the complaint. Employers thereafter offered an additional $1,071,766.97, and the case was settled out of court. Subsequently, Employers requested indemnification from Home Indemnity in the amount of its contribution to the settlement, plus interest, claiming that the Home Indemnity policy maintained a $500,000 liability limit for each of its named insureds and that, therefore, the settlement was within the limits of the Home Indemnity coverage. The trial judge entered summary judgment in favor of Employers, holding that the Home Indemnity policy did provide a limit of $500,000, but that that limit was separate for each of its insureds named in the policy. Home Indemnity appeals. We affirm.
In order to determine if summary judgment was proper, we must analyze certain clauses of the Home Indemnity policy dealing with its liability limits. The following excerpt from the policy sets forth Home Indemnity's liability limits:
In addition to the above, there was an endorsement to the policy that read as follows:
A further endorsement read as follows:
The endorsement further states that the limit of liability for "each occurrence, aggregate operations, aggregate protective, *947 aggregate contractual and aggregate products" is $500,000. Employers contends that the first endorsement, which states that the policy will incorporate separate limits of liability, indicates that each of the named insureds will have a separate limit of liability, i.e., that each insured would be entitled to $500,000 of coverage. We agree. See Commercial Standard Insurance Co. v. General Trucking Co., 423 So. 2d 168 (Ala.1982), wherein we stated the following:
Id., at 170. In light of our decision in Commercial Standard Insurance, we note that Employers, as the excess insurer and not the author of the policy in dispute, is entitled to have any ambiguity resolved in its favor:
Id., at 171. The policy clearly states that each insured would have coverage as if separate policies had been issued for each of them and that separate liability limits existed for each insured, even if those limits were all the same. We are of the opinion that the trial court, applying the rule that an ambiguity in an insurance contract should be resolved in favor of the insured, could determine that the policy provided for a liability limit of $500,000 for each insured. Home Indemnity drafted the policy and any ambiguity regarding the liability limit should be construed in favor of Employers. See Upton v. Mississippi Valley Title Insurance Co., 469 So. 2d 548 (Ala.1985), wherein we wrote:
Id., at 555 (emphasis original).
For the foregoing reasons, the summary judgment in favor of Employers is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES and ALMON, JJ., concur. | July 13, 1990 |
b5b3ab91-30a5-4270-a013-d16a237f607b | Ex Parte Milteer | 571 So. 2d 998 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 998 (1990)
Ex parte Elmer G. MILTEER.
(Re Elmer G. Milteer v. State).
89-74.
Supreme Court of Alabama.
August 3, 1990.
Rehearing Denied September 14, 1990.
Jonathan L. Adams, Talladega, for petitioner.
Don Siegelman, Atty. Gen., and Andy S. Poole, Asst. Atty. Gen., for respondent.
PER CURIAM.
In March 1988, the defendant, Elmer Milteer, was convicted in Talladega Circuit Court on 6 separate counts of murder and was sentenced to 99 years in the penitentiary. The Court of Criminal Appeals affirmed the judgment of the trial court, without an opinion. 553 So. 2d 142. We issued the writ of certiorari and now we reverse and remand.
The issue is whether the trial court erred in allowing lay witnesses for the State to give opinion testimony as to the defendant's sanity.
On June 21, 1986, Milteer was driving an 18-wheel tractor-trailer tank truck. He failed to stop at a weigh station. A chase with law enforcement officers ensued. The chase ended when Milteer hit a van, killing six of the seven passengers. Blood and urine tests revealed no evidence of alcohol or drugs in his system.
*999 Several years prior to 1986, Milteer had been diagnosed as suffering from paranoid schizophrenia. Medication to control his symptoms had been prescribed, but at some point prior to the accident he had ceased taking the medication.
At trial, he raised an insanity defense. The evidence was conflicting on the issue of his sanity, with expert witnesses testifying that he was insane and lay witnesses testifying that he was sane.
The testimony of two psychiatrists, verified by Milteer's medical records, was that Milteer was mentally ill and that he was most likely suffering from the illness at the time of the accident. Donald William Reynolds and Denise Morgan, two lay witnesses called by the State, were allowed to give their opinions as to his sanity, over his objection.
Reynolds, general supervisor in charge of shipping, receiving, and warehousing functions for Wrigley Company in Flowery Branch, Georgia, testified that Milteer came to the Wrigley plant to fetch a load of gum. He stated that he first saw Milteer between 7:00 a.m. and 9:00 a.m. on June 20, 1986, the day before the accident, at which time the two talked for not more than two minutes. Reynolds said he talked to Milteer a second time, but did not say for how long. Reynolds further stated that Milteer waited approximately 3 or 4 hours in the driver's lounge, which is adjacent to his office, for his truck to be loaded and that he was able to observe Milteer the entire time. He testified as follows:
The second witness, Denise Morgan, a permits and enforcement employee at a weigh station in Carrollton, Georgia, where the defendant had also stopped on June 20, 1986, testified that she saw the defendant and talked to him at approximately 3:15 p.m. that afternoon. She said he obeyed all of her requests and was cooperative. She testified as follows:
In Guinn v. State, 22 Ala.App. 331, 332, 115 So. 417 (1928), the Court of Appeals stated:
Furthermore, this Court has stated:
Williams v. State, 291 Ala. 213, 215, 279 So. 2d 478, 479 (1973).
Generally, the testimony of a lay witness on the issue of sanity is competent and admissible where the lay witness has known the defendant for a long period of time. Williams, supra; Grissom v. State, 33 Ala.App. 23, 30 So. 2d 19 (1947), cert. denied, 249 Ala. 125, 30 So. 2d 26 (1947). In Wise v. State, 251 Ala. 660, 38 So. 2d 553 (1948), this Court held that a doctor who had visited the defendant in that case on three occasions, twice on the Sunday before the alleged crime and again on Wednesday after the killing had occurred, was not a competent lay witness. In that case, the physician talked to the defendant and examined him for physical problems. The physician, however, testified that he did not make a medical study of the defendant's mental condition, but that he observed it and formed a personal opinion that the defendant was sane. The Court stated, "We think that this testimony cannot be supported on the theory that he was an expert.... And, as a non-expert, he did not pretend to qualify sufficiently to express an opinion." Id., 251 Ala. at 664, 38 So. 2d at 555 (citations omitted).
The value of such testimony by a lay witness
Williams, supra, 291 Ala. at 214, 279 So. 2d at 479.
The record in this case reveals that the two lay witnesses had had very brief and limited opportunities for observation of the defendant. Reynolds had talked to the defendant only twice, for approximately 2 minutes, and Morgan had talked to the defendant once, for approximately 15 minutes, on the day before the events made the basis of this prosecution. This does not clearly indicate that the lay witnesses had sufficient opportunity to form an opinion as to the defendant's sanity. We know of no jurisdiction in which the opinion testimony of a lay witness who has observed a defendant for less than 20 minutes would be regarded as admissible on the issue of the defendant's sanity.
After reviewing the facts of this case, we conclude that the predicate was not laid for admission of the lay witnesses' opinion testimony concerning the defendant's sanity and that the trial court erred in allowing that testimony into evidence. Therefore, the judgment is reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS, STEAGALL and KENNEDY, JJ., concur. | August 3, 1990 |
679067ae-8311-411f-a456-5ad4a65b0480 | Whitlow v. Bruno's Inc. | 567 So. 2d 1235 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1235 (1990)
Pamela Jean WHITLOW
v.
BRUNO'S, INC., et al.
89-378.
Supreme Court of Alabama.
July 13, 1990.
Rehearing Denied September 14, 1990.
*1236 Robert F. Prince and Jon M. Turner, Jr., of Prince, Turner & Nolen, Tuscaloosa, for appellant.
John A. Owens and K. Scott Stapp of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for appellees.
PER CURIAM.
Pamela Jean Whitlow appeals from a summary judgment entered in favor of Bruno's, Inc., and its agents in a lawsuit charging Bruno's with malicious prosecution, false imprisonment, false arrest, intentional infliction of emotional distress, slander, misrepresentation, invasion of privacy, and assault. Because Whitlow makes no arguments in her brief regarding her claims for false arrest, intentional infliction of emotional distress, slander, or invasion of privacy, no discussion regarding those claims is necessary.
The underlying facts and proceedings in this case may be briefly stated. In November 1987, Pamela Jean Whitlow and a male friend entered the Bruno's grocery store located on McFarland Boulevard in Tuscaloosa. Ms. Whitlow went to the section of the store that rents taped movies for videocassette players. After deciding which videotaped movies to rent, Ms. Whitlow went to the video counter and showed the employee behind the counter her membership card. Ms. Whitlow then asked the employee if she could pay the videotape rental fee at the check-out counter along with her groceries. The employee consented, but only after Ms. Whitlow had signed a coded pink slip of paper assuming liability for the tapes. The employee instructed *1237 Ms. Whitlow to give the cashier the coded pink slip of paper when she checked out, so that the rental fee could be paid at that time. The employee then looked up Ms. Whitlow's membership application and gave her the two videotapes she had selected. Ms. Whitlow placed the two tapes into her shopping cart and completed her grocery shopping.
When Ms. Whitlow arrived at the check-out counter, she paid for her grocery items in cash but failed to pay for the two videotape rentals.[1] She went through the check-out line and exited the store, pushing the grocery cart. Michael Fike, the "front end" manager for Bruno's followed Ms. Whitlow outside and asked her if she had anything that belonged to Bruno's. Ms. Whitlow explained that she had merely forgotten about the tapes and asked Fike if she could pay the rental fee. Fike replied that the manager would have to make that decision. Fike then asked her to come back into the store. Ms. Whitlow was taken to an office inside the store, where she was questioned by Sidney Cannon, the manager on duty. The police were called shortly thereafter. Police Officers Baker and Thompson arrived and questioned Bruno's employees and Ms. Whitlow. After handcuffing Ms. Whitlow, the officers took her down to police headquarters. She was then transferred to the county jail and was eventually released on bond later that night.
On January 13, 1988, a preliminary hearing was held in the District Court of Tuscaloosa County, wherein the court found sufficient probable cause to bind Ms. Whitlow's case over to the Tuscaloosa County grand jury.
On January 29, 1988, Ms. Whitlow was indicted by the Tuscaloosa County grand jury for theft of two videocassette tapes. On August 19, 1988, she was tried in the Circuit Court of Tuscaloosa County, where she was found not guilty.
The issue presented for our review is whether the trial court erred in ruling, as a matter of law, that there was no substantial evidence of 1) malicious prosecution; 2) false imprisonment; 3) assault; and 4) misrepresentation.
Rule 56, A.R.Civ.P., requires that, in order to enter a summary judgment, the court determines that 1) there is no genuine issue of material fact and 2) the moving party is entitled to a judgment as a matter of law. The action in the present case was commenced after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12 (Supp.1988).
The plaintiff in a malicious prosecution case must prove each of the following elements: 1) that a prior judicial proceeding was instigated by the defendant 2) without probable cause and 3) with malice; 4) that that prior proceeding was terminated in the plaintiff's favor; and 5) that the plaintiff suffered damages as a result of that prior proceeding. Alabama Power Co. v. Neighbors, 402 So. 2d 958 (Ala.1981). The Neighbors Court further explained why such a heavy burden of proof is necessary in malicious prosecution cases:
Neighbors, supra, at 962.
It is almost platitudinous to restate the well-entrenched rule that in malicious prosecution cases the finding of an indictment by a grand jury, against a defendant in a prior judicial proceeding, constitutes prima facie evidence of the existence of probable cause. Lumpkin v. Cofield, 536 So. 2d 62 (Ala.1988). As further noted in Lumpkin, *1238 however, "[s]uch a prima facie defense can be overcome by a showing that the indictment `was induced by fraud, subornation, suppression of testimony, or other like misconduct of the party seeking the indictment'" Id. at 64 (citation omitted).
In support of her argument that Bruno's lacked probable cause, Ms. Whitlow states in her brief, in part, as follows:
Although this argument has a certain allure, we do not find the argument persuasive. As stated in this opinion, Ms. Whitlow asked the Bruno's employee who worked behind the counter at the video section of the store if she could pay the rental fee for the tapes at the check-out counter along with her groceries. Therefore, notwithstanding the fact that the membership contract between Ms. Whitlow and Bruno's is devoid of any language stating that the customer must pay the rental fee in advance, Ms. Whitlow, nevertheless, did agree to pay in advance. Therefore, Ms. Whitlow's failure to pay the rental fee for the tapes at the check-out counter supports a finding of probable cause. Having so found, we pretermit any discussion of the four remaining elements of malicious prosecution.
With respect to the false imprisonment issue, Code 1975, § 15-10-14(a) and (c), is dispositive:
A merchant, pursuant to § 15-10-14(a) and (c), is given the statutory right to detain *1239 a person if he has probable cause for suspecting that items from his store have been unlawfully taken. It must therefore be ascertained whether Bruno's had probable cause to detain Ms. Whitlow.
It is without dispute that Ms. Whitlow walked out of the Bruno's grocery store with two videotapes without first paying for them. Although Ms. Whitlow maintains that she mistakenly walked out of the store without first paying the rental fee, she nevertheless concedes that she walked out of Bruno's with the videotapes. Moreover, a preliminary hearing was held in the District Court of Tuscaloosa County, wherein that court found probable cause to bind Ms. Whitlow's case over to the Tuscaloosa County grand jury. Thereafter, Ms. Whitlow was indicted by the grand jury of Tuscaloosa County. After reviewing the record, we find it clear that there is no genuine issue of material fact as to whether probable cause existed to detain Ms. Whitlow. Goodwin v. Barry Miller Chevrolet, Inc., 543 So. 2d 1171 (Ala.1989). Thus, summary judgment was also proper on Ms. Whitlow's claim seeking damages for false imprisonment.
We next turn to the assault issue. At the outset, we should emphasize that § 15-10-14(a) and (c), supra, provide a merchant no defense to an assault charge made by a customer. Super X Drugs of Alabama, Inc. v. Martz, 51 Ala.App. 370, 286 So. 2d 47 (1973). Generally speaking, the question whether there is an assault depends more upon the apprehensions created in the mind of the person claiming to have been assaulted than upon the intentions of the alleged tort-feasor. See, generally, W. Prosser and P. Keeton, Law of Torts § 10 (5th ed.1984). In Western Union Telegraph Co. v. Hill, 25 Ala.App. 540, 150 So. 709, cert. denied, 227 Ala. 469, 150 So. 711 (1933), our Court of Appeals had this to say:
25 Ala.App. at 541-42, 150 So. at 710.
Regarding the allegations of assault, Ms. Whitlow stated at her deposition as follows:
(Deposition of Pamela Jean Whitlow, pp. 49-50.)
(Deposition of Pamela Jean Whitlow, pp. 64-65.)
A simple reading of Ms. Whitlow's deposition testimony suggests that, under the circumstances, Ms. Whitlow did not possess a well founded fear of an imminent battery. In fact, Ms. Whitlow's deposition testimony is devoid of any allegations that she was ever threatened with physical harm. Thus, summary judgment was also proper on Ms. Whitlow's claim seeking damages for assault.
The final issue presented involves Ms. Whitlow's claim seeking damages for misrepresentation. Specifically, Ms. Whitlow seeks damages for deceit under Code 1975, §§ 6-5-103 and 6-5-104.
"§ 6-5-103. DeceitRight of action generally.
"§ 6-5-104. SameFraudulent deceit.
It should be emphasized that the burden of proof "rests upon the plaintiff to prove each of the foregoing elements. If a plaintiff fails to carry this burden with regard to any of those elements, a recovery cannot be had." Patel v. Hanna, 525 So. 2d 1359, 1360 (Ala.1988).
An action for deceit, under § 6-5-103 and § 6-5-104, results from either a willful or reckless misrepresentation or a suppression of material facts with an intent to mislead. Ms. Whitlow argues that the manager of Bruno's, Sidney Cannon, induced her into a confession of guilt. Ms. Whitlow's deposition testimony, regarding her claims of misrepresentation, reads as follows:
Reviewing the evidence in a light most favorable to the non-moving party, we are constrained to hold that the question of whether Cannon's statement constitutes a misrepresentation did not constitute a question of fact properly to be passed upon by a jury.
As we understand the plaintiff's misrepresentation claim, it is based on the following facts: that she was taken into the office because she left Bruno's without paying for the rental tapes; that she asked if she could pay for them and be released and the agent said: "Look, we know you have been stealing from us. If you just tell me the truth, I will let you get outI will let you leave. All I want you to do is to be truthful with me, and I will let you go." Then, says the plaintiff, she "told him what he wanted to hear so [she] could go"; that is, she admitting stealing the tapes, and she now claims that her admission was a lie.
It is obvious that at the time the alleged misrepresentation was made, the plaintiff had already admitted that she had left the store without paying for the tapes and the Bruno's agent had told her that she was suspected of stealing.
We affirm the summary judgment as to all of the claims.
AFFIRMED.
*1242 HORNSBY, C.J., and MADDOX, ALMON, SHORES, STEAGALL and KENNEDY, JJ., concur.
[1] The rental fee for each tape was $2.00, plus tax. | July 13, 1990 |
aa6767f6-9d16-4305-9323-51ec78806b35 | Hooper v. Allstate Ins. Co. | 571 So. 2d 1001 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1001 (1990)
Michael Craig HOOPER
v.
ALLSTATE INSURANCE COMPANY.
89-580.
Supreme Court of Alabama.
August 31, 1990.
Rehearing Denied December 14, 1990.
Hugh A. Locke, Jr. of Locke & Locke and Ronald O. Gaiser, Jr., Birmingham, for appellant.
M. Keith Gann of Huie, Fernambucq & Stewart, Birmingham, for appellee.
Bert S. Nettles of Spain, Gillon, Grooms, Blan & Nettles, Birmingham, and Alan M. Posner of Sonnenschein, Nath & Rosenthall, Chicago, III., for amicus curiae Nat. Ass'n of Independent Insurers.
*1002 ALMON, Justice.
This is an appeal from a summary judgment entered in favor of Allstate Insurance Company in a declaratory judgment action. Allstate filed a complaint seeking to determine if it was obligated to defend an action filed against its insured by Michael Craig Hooper or to pay any judgment rendered for Hooper. Hooper claimed damages for injuries he received when he was shot by an individual insured under an Allstate homeowner's policy. The only question presented is whether an exclusion in that homeowner's policy, which excluded coverage for injuries that could reasonably be expected to result from criminal acts by individuals insured under the policy, is ambiguous.
Hooper was at the home of his friend, James Mize. Hooper and Mize, who had been drinking, were discussing a possible hunting trip. Mize, while handling a shotgun, accidentally fired it, striking Hooper in the lower half of his face and severely injuring him. At the time of the shooting, Mize and his parents were insured under an Allstate homeowner's policy that contained the following exclusion:
Hooper filed a complaint against Mize and his parents, alleging that Mize's negligence or wantonness, coupled with his parents' negligence in entrusting the shotgun to him, proximately caused Hooper's injuries. Hooper also filed a criminal complaint against Mize. As a result of that criminal complaint, Mize was indicted for first degree assault. Mize pleaded guilty to second degree assault and received a sentence of five years' probation.
After the judgment of conviction was entered against Mize, and while Hooper's civil action against Mize was pending, Allstate filed a complaint for a declaratory judgment, naming Hooper and Mize as defendants. Allstate sought a declaration that, because of the exclusion in the homeowner's policy, it had no contractual obligation to defend or to pay any judgment rendered against Mize. Allstate later filed a motion for summary judgment, which the trial court granted.[1] Hooper appeals from that judgment, arguing that the exclusion was ambiguous and therefore unenforceable.
This Court has held that insurance companies have the right to limit the coverage offered through the use of exclusions in their policies, provided that those exclusions do not violate a statute or public policy. Ex parte O'Hare, 432 So. 2d 1300 (Ala.1983); Bell v. Travelers Indem. Co. of America, 355 So. 2d 335 (Ala.1978); Aetna Ins. Co. v. Pete Wilson Roofing & Heating Co., 289 Ala. 719, 272 So. 2d 232 (1972). If an individual purchases a policy containing an unambiguous exclusion that does not violate a statute or public policy, courts will enforce the contract as written. Johnson v. Allstate Ins. Co., 505 So. 2d 362, 365 (Ala.1987).
Hooper's argument that the exclusion is ambiguous is premised on his assertion that the placement of the phrase "or criminal acts" between two phrases that address intentional conduct makes the clause susceptible to an interpretation that the only criminal acts that would be excluded from coverage are intentional criminal acts. We do not agree, and we hold that the clause is unambiguous. In reaching that conclusion, we note that the words "criminal acts" are not modified by any descriptive culpability requirement and that the clauses of the exclusion are phrased in the disjunctive. Therefore, no coverage is provided for bodily injury or property damage:
A number of other jurisdictions have held that the same exclusion was unambiguous and excluded coverage for injuries resulting from criminal acts by the insured, regardless of whether the insured intended to commit the act or to cause the harm. Allstate Ins. Co. v. S.L., 704 F. Supp. 1059, 1060 (S.D.Fla.1989), aff'd, 896 F.2d 558 (11th Cir.1990); Allstate Ins. Co. v. Travers, 703 F. Supp. 911, 915 (N.D.Fla.1988); Allstate Ins. Co. v. Foster, 693 F. Supp. 886, 889 (D.Nev.1988); Allstate Ins. Co. v. Talbot, 690 F. Supp. 886, 889 (N.D.Cal. 1988); Allstate Ins. Co. v. Roelfs, 698 F. Supp. 815, 822 (D.Alaska 1987); Allstate Ins. Co. v. Schmitt, 238 N.J.Super. 619, 570 A.2d 488, 492 (App.Div.1990); Allstate Ins. Co. v. Sowers, 97 Or.App. 658, 776 P.2d 1322, 1323 (1989).
We also reject Hooper's allegations that the exclusion contravenes public policy or is unconscionable. As we noted earlier, insurance companies have the right to limit their liability and to write policies with narrow coverage. Johnson, supra. No public policy considerations dictate that an insurer must indemnify a third party for the criminal acts of an insured. Similarly, Hooper's claim that the exclusion is unconscionable is not well taken.
Because the exclusion unambiguously excluded coverage for injury or damage that might reasonably be expected to result from criminal acts by an insured, without a requirement that the acts be intentional or that the injury be intended, and because Mize's action fell squarely within that exclusion, Allstate was under no duty to defend Mize or to indemnify Hooper for his injuries. Allstate was therefore entitled to a judgment as a matter of law, and the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Mize did not file any pleadings in the declaratory judgment action and Allstate obtained a default judgment against him. He has not joined Hooper in this appeal. | August 31, 1990 |
ff6e2825-2f16-4a4b-aa4b-0a75554e204b | Mims v. Jack's Restaurant | 565 So. 2d 609 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 609 (1990)
Betty G. MIMS
v.
JACK'S RESTAURANT.
89-133.
Supreme Court of Alabama.
July 13, 1990.
Harry M. Renfroe, Jr. of Mountain & Mountain, Tuscaloosa, for appellant.
Wayne Randall of Donald, Randall, Donald & Hamner, Tuscaloosa, for appellee.
KENNEDY, Justice.
The plaintiff, Betty G. Mims, appeals from a summary judgment entered in favor of the defendant, Jack's Restaurant, in an action for negligence. For the reasons set out below, we reverse and remand.
On April 30, 1988, at 9:00 a.m., Betty Mims and a friend, Charles Madison, went to Jack's Restaurant ("Jack's"), operated by the defendant, for breakfast. Ms. Mims entered Jack's through the double glass doorway, ordered breakfast, ate, and started to leave. Mr. Madison walked out first *610 and held one of the doors open for Ms. Mims. As she crossed the threshold, she said, the toe of her left shoe struck a raised groove in the threshold. She tripped on the metal threshold, slipped on the concrete sidewalk outside the doorway, and fell. She said she did not see any type of substance on the sidewalk that caused her to slip. As a result of the fall, Ms. Mims injured her right ankle.
Mr. Madison testified that at the time of the incident the metal threshold was loose and some screws were missing. Ms. Mims stated that she had no knowledge of the condition of the threshold.
The store manager, Ronald Raney, arrived at Jack's at 10:30 a.m., approximately 30 minutes after Ms. Mims's fall. He said he inspected the area and found no slippery substances on the floor or sidewalk. Mr. Raney stated that the threshold was in its normal or usual condition and that no other incidents involving the threshold had been reported.
In order to get a summary judgment reversed, the appellant must show that there was substantial evidence from which a jury could find that a genuine issue of material fact existed. See Rule 56(c), A.R. Civ.P.; Berner v. Caldwell, 543 So. 2d 686 at 688 (Ala.1989). All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989); Kizziah v. Golden Rule Insurance Co., 536 So. 2d 943 (Ala.1988); Autrey v. Blue Cross-Blue Shield of Alabama, 481 So. 2d 345 (Ala.1985).
In this case, the doorway was presumably a heavily traveled area. Ms. Mims stated in her deposition that she thought the accident occurred because the threshold was "raised up about a half an inch." It is unclear whether she was referring to the top of the threshold, which is normally raised to that height, or the bottom of the threshold, which is usually flush with the floor. Madison testified in his deposition that, at the time of the accident, "a couple of [the] screws" that had moored the threshold to the floor were missing. He further stated that the threshold was loose, and he said he knew it was loose, because he stepped on it. Both Ms. Mims and Madison testified that she tripped on the threshold and that her tripping was the cause of the accident. Resolving all reasonable doubts in favor of Ms. Mims, we find that this is substantial evidence from which a jury could find that a defect existed in the threshold of the door and that the defect caused Ms. Mims to trip, thereby causing her injuries.
Ms. Mims was a business invitee of the defendant. Therefore, it owed her a duty to exercise ordinary and reasonable care in providing and maintaining reasonably safe premises for her. Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989). The question of whether the threshold, if it was defective, had been defective for such a period of time that Jack's should have discovered the defect, was for the jury.
The facts in this case should be distinguished from the facts in a case where a plaintiff slips and falls on a slick spot on a floor caused by food or another substance. In one of those slip and fall cases, a plaintiff not only must make a prima facie showing that her fall was caused by a defect or instrumentality (a substance causing a surface to be slick) located on the premises, but she must also present prima facie evidence that the defendant had or should have had notice of the defect or instrumentality at the time of the accident. Massey v. Allied Products Co., 523 So. 2d 397 (Ala.1988); Tice v. Tice, 361 So. 2d 1051 (Ala.1978). On the other hand, in cases where the alleged defect is a part of the premises (in this case, a loose threshold in the main entrance of a restaurant), once a plaintiff has made a prima facie showing that a defect in a part of the premises has caused an injury, then the question whether the defendant had actual or constructive notice of the defect will go to the jury, regardless of whether the plaintiff makes a prima facie showing that the defendant had or should have had notice of the defect at the time of the accident. For example, in Winn-Dixie Montgomery, *611 Inc. v. Weeks, 504 So. 2d 1210 (Ala. 1987), a mother was going through a grocery store pushing a shopping cart, in which her son was sitting. The only unusual thing she noticed about the cart was that the wheels made a loud noise and were wobbly. While she left the cart for a moment, the child leaned over to reach for candy in a display rack, and, as he did so, the cart tilted over and his left cheek was impaled on an allegedly broken wire that was sticking up on the display rack. The defendants, appealing from a judgment based on a jury verdict in favor of the plaintiff, argued that there was no evidence that they had constructive notice of the defect. This Court affirmed, holding that the question whether the grocery store had constructive notice of the alleged defect was for the jury. Winn-Dixie Montgomery, Inc. v. Weeks, 504 So. 2d at 1211.
In both this case and in Weeks, the alleged defect or instrumentality was a part of the premises. Unlike a spilled substance, a defective threshold or a cart or a display rack is a fixture that requires ordinary and reasonable maintenance in order to provide safe premises for the store's customers. Because it was the main entrance of the restaurant, we find that the question whether Jack's should have known that the threshold was defective was a question for the jury.
The judgment is due to be reversed and the cause remanded for proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | July 13, 1990 |
45fae32d-6bf0-42db-8d11-924174c00d90 | Schroeder v. McWhite | 569 So. 2d 316 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 316 (1990)
Diana McWhite SCHROEDER
v.
James H. McWHITE, Jr., individually and as administrator of the Estate of Alice D. McWhite, deceased.
88-1636.
Supreme Court of Alabama.
July 13, 1990.
Rehearing Denied September 21, 1990.
*317 Steven A. Benefield of Rives & Peterson, Birmingham, for appellant.
Bryant A. Whitmire, Jr., Birmingham, for appellee.
SHORES, Justice.
Alice D. McWhite, mother of the two parties to this suit, died intestate. James H. McWhite, the appellee, filed a petition for letters of administration, which was granted by the Probate Court of Jefferson County, Alabama. On December 21, 1988, McWhite filed a complaint against his sister, Diana McWhite Goss, now remarried and known as Diana McWhite Schroeder. McWhite alleged fraud and sought to have Schroeder return to the estate money and personal property belonging to their deceased mother. Mrs. Schroeder answered this complaint by sending a handwritten letter to the probate court containing certain account statements and setting forth her grounds for denial. A hearing was held on March 11, 1988, at which oral testimony was taken, and the trial judge ordered as follows:
(C.R. 26-27). No assets were returned to the estate. Mrs. Schroeder, did not appeal from this ruling.
On June 10, 1988, the appellant filed in the probate court a motion for relief from the order, pursuant to Rule 60(b), A.R. Civ.P., in which she prayed that the court would vacate the order of March 11, 1988. The appellee then filed a petition to have the assets of the estate returned. Both petitions were heard by the probate judge of Jefferson County. By order dated August 12, 1988, he denied the appellant's motion for relief from the order and granted the appellee's petition to have the assets returned:
(C.R. 37). The appellant filed her notice of appeal of this order to the circuit court on September 22, 1988.
The appellee then filed in the circuit court a motion to dismiss that appeal. A hearing was held on that motion on August 2, 1989, and the circuit judge dismissed the appeal. Mrs. Schroeder then appealed that dismissal to this Court.
The only issue before this Court is whether the trial court erred in dismissing Mrs. Schroeder's appeal to the circuit court from the order of the probate court.
Under Act No. 1144, Ala.Acts 1971, the probate court in a county having a population of 500,000 or more has general jurisdiction concurrent with that of the circuit court when equitable jurisdiction is invoked. Thus, when equitable jurisdiction is invoked by either the parties or the court in the Jefferson County Probate Court, an appeal lies to the Supreme Court. Act No. 1144 provides in pertinent part as follows:
Here, the appellant, Mrs. Schroeder, filed a motion for relief under A.R.Civ.P. 59 and 60(b), invoking the equity jurisdiction of the Jefferson County Probate Court. Her appeal would not lie to the circuit court, for the obvious reason that the ruling on her motion was by the probate court acting in *319 its exercise of jurisdiction concurrent with that of the circuit court.
The trial judge did not err in dismissing her appeal to the circuit court. The dismissal is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | July 13, 1990 |
148597ac-d218-4a49-bc9f-9a414531b2db | Cincinnati Ins. Co., Inc. v. Girod | 570 So. 2d 595 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 595 (1990)
CINCINNATI INSURANCE COMPANY, INC.
v.
Mary L. GIROD, individually and as executrix of the Estate of Morton K. Girod, deceased.
89-550.
Supreme Court of Alabama.
August 31, 1990.
Rehearing Denied November 16, 1990.
*596 William A. Mudd and C. Peter Bolvig of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellant.
William H. Hardie of Johnstone, Adams, Bailey, Gordon & Harris, Mobile, for appellee.
MADDOX, Justice.
This is an appeal from a dismissal of the plaintiff's declaratory judgment action seeking a determination that it was not liable under a homeowner's insurance policy for additional uninsured motorist coverage claimed by the defendant. The dismissal was premised upon the trial court's determination that the plaintiff had failed to join certain indispensable parties pursuant to Rule 19, A.R.Civ.P., namely the defendant's children.
In April 1988, Morton and Mary Girod, husband and wife, were issued a homeowner's insurance policy through Cincinnati Insurance Company of Cincinnati, Ohio (hereinafter "Cincinnati").[1] The policy was actually sold to the Girods through a Mobile insurance agency. The policy contained uninsured motorist coverage in the amount of $20,000 per claimant and $40,000 per occurrence and covered two vehicles owned by them. The policy also provided a so-called "Personal Umbrella Liability Endorsement" that provided a maximum liability coverage of $1,000,000 per accident.[2]
On or about April 9, 1989, the Girods were involved in a automobile collision on Interstate Highway I-10 in the State of Louisiana. Mr. Girod was killed when the car he was driving collided with another vehicle driven by Carl A. Fugatt.[3] Mrs. Girod, who was sitting next to her husband at the time of the accident, was seriously injured. Following the accident, Cincinnati waived its subrogation interest against Fugatt in order that Fugatt's insurance carrier could settle its claim with Mrs. Girod. Furthermore, Cincinnati tendered to Mrs. Girod an amount equal to its policy limit of uninsured motorist coverage$80,000.[4]*597 Mrs. Girod did not agree that $80,000 was all that was payable under the terms of the policy, and she asserted that Cincinnati's tendering of the $80,000 to her did not satisfy what she claimed to be the company's liability for additional uninsured motorist coverage pursuant to the "Personal Umbrella Liability Endorsement." In short, she claimed additional uninsured motorist coverage up to the amount of $1,000,000.[5]
Because of the dispute involving the applicability of the umbrella coverage, Cincinnati filed this action in the Circuit Court of Mobile County on September 13, 1989, seeking a declaration of its rights and duties under the umbrella coverage. Cincinnati named as defendant Mrs. Girod, individually and as the administratrix of her husband's estate. On September 22, 1989, Mrs. Girod and her children (hereinafter "the Girods") filed a diversity action against Cincinnati in the United States District Court for the Eastern District of Louisiana. In that action, the Girods maintained that under Louisiana's wrongful death statute each of them has a statutory right to file an action for wrongful death against Cincinnati for damages due them and payable under its uninsured motorist policy, coverage which they maintained in their complaint included the umbrella endorsement.[6]
On September 26, 1989, Mrs. Girod, individually and as administratrix of her husband's estate, filed a motion to dismiss Cincinnati's action for declaratory judgment, pointing out that Cincinnati had failed in that action to join her children as indispensable parties. Mrs. Girod asserted that her children, through their wrongful death action against Cincinnati filed in the Louisiana federal court, had an interest to protect in regard to any determination of coverage under Cincinnati's umbrella endorsement. In its brief filed in opposition to Mrs. Girod's motion to dismiss, Cincinnati asserted that under Alabama law, which Cincinnati said applied to this action because of the fact that the essence of its dispute with Mrs. Girod concerned an interpretation of an insurance policy issued in the State of Alabama, it had sued the only necessary and proper party, namely Mrs. Girod, whom it sued both individually and as administratrix of her husband's estate. On December 15, 1989, the trial court granted Mrs. Girod's motion to dismiss Cincinnati's declaratory judgment action on the ground that Cincinnati had failed to join Mrs. Girod's children as indispensable parties. On January 8, 1990, Cincinnati appealed.
The issue here is whether an insurance company that has filed a declaratory judgment action against an insured's estate, which is claiming additional benefits under the policy, must name as indispensable parties the distributees of the insured's estate who might benefit from the resolution of that dispute. Because this dispute involves an interpretation of an insurance policy issued in the State of Alabama, under Alabama's conflicts of law rule the trial court would be obligated to apply the substantive law of Alabama, not the substantive law of Louisiana, even though the accident occurred there. See Ex parte Owen, 437 So. 2d 476, 481 (Ala. 1983); Harrison v. Insurance Co. of North America, 294 Ala. 387, 391, 318 *598 So. 2d 253, 257 (1975); Furst & Thomas v. Sandlin, 208 Ala. 490, 492, 94 So. 740, 742 (1922).
When Cincinnati filed its declaratory judgment action, the only named insureds under its policy were Morton and Mary Girod. Therefore, any interest that the children of Mr. Girod might claim would be as distributees of his estate.
Thus, the issue may be restated as whether the distributees of an insured's estate are deemed to be "indispensable parties" to a declaratory judgment action filed by an insurance company against the estate. In the case of Prout v. Hoge, 57 Ala. 28, 30-31 (1876), this Court, in addressing the concept of indispensable parties, stated:
In light of the rule, this Court cannot say that the distributees of Mr. Girod's estate, which has been named in the declaratory judgment action, are also deemed to be indispensable parties in that same action. At the time Cincinnati filed the declaratory judgment action, Mrs. Girod had been appointed administratrix of her husband's estate. As such, Mrs. Girod represented the interests of that estate; furthermore, she also protected and represented the interests of the estate's distributees. See Coastal States Life Insurance Co. v. Gass, 278 Ala. 656, 180 So. 2d 255 (1965). Finally, it must be remembered that any proceeds that Mrs. Girod as administratrix of her husband's estate might receive through the resolution of Cincinnati's declaratory judgment action would immediately become assets of that estate and subject to distribution to its distributees.
Therefore, we conclude that the trial court erred in dismissing the complaint because of Cincinnati's failure to join Mrs. Girod's children. Cincinnati had joined the only necessary and proper party, i.e., the only party who possessed an interest in the dispute, namely Mrs. Girod, whom it sued individually and as administratrix of her husband's estate. We, of course, express no opinion on the underlying dispute.
The judgment of dismissal is, therefore, due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The period of coverage provided to the Girods under their homeowner's insurance policy ran from May 10, 1988, to May 10, 1989.
[2] "Umbrella liability coverage" is coverage offered through an insurance company to its insureds to pick up where that insurance company's primary coverage ends. The primary function of umbrella coverage is to provide additional liability security, as well as peace of mind, to an insured who hopes that he will never be involved in any substantial claim or lawsuit, but who, if he is involved in such an action, is assured that if damages are awarded against him those damages will be covered by the additional liability coverage afforded to him under his umbrella policy. See Appleman, Insurance Law and Practice § 4909.85, at 452 (1981).
[3] Mr. Fugatt, not a party to this appeal, was insured by State Farm Mutual Automobile Insurance Company at the time of the accident. State Farm's policy provided liability coverage of $20,000 per person and $40,000 per occurrence to Mr. Fugatt.
[4] The $80,000 paid to Mrs. Girod by Cincinnati resulted from the "stacking" of the $40,000 per accident coverages provided on each of the two vehicles owned by the Girods at the time of their accident. Ala.Code 1975, § 32-7-23(c), permits a policy holder to "stack" coverages provided on vehicles insured under a single policy.
[5] The parties to this appeal refer to their dispute as one involving uninsured motorist coverage. Their dispute, of course, involves underinsured motorist coverage, because at the time of the Girods' collision with Fugatt, Fugatt was covered by liability insurance provided through another insurance company. References to an "uninsured" motorist is appropriate, however, because Alabama's definition of an "uninsured motor vehicle" includes an underinsured motor vehicle. Ala.Code 1975, § 32-7-23(b)(4). See also Lowe v. Nationwide Ins. Co., 521 So. 2d 1309 n. 1 (Ala.1988), in which this Court stated that the term "uninsured motorist" includes an "underinsured motorist" under Alabama's Motor Vehicle Safety-Responsibility Act.
[6] Louisiana's wrongful death statute, which appears at La.Civ.Code Ann. art. 2315.2 (West Cum.Supp.1990), states in part the following:
"Art. 2315.2. Wrongful death action
"A. If a person dies due to the fault of another, suit may be brought by the following persons to recover damages which they sustained as a result of the death:
"(1) The surviving spouse and child or children of the deceased, or either the spouse or the child or children...." (Emphasis added.) | August 31, 1990 |
ef91f134-d166-478a-991e-9b267ee639fc | Caudle v. Patridge | 566 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 244 (1990)
Michael Carmen CAUDLE
v.
Bill PATRIDGE, d/b/a Off-Road Birmingham, and Eastwood Ford, Inc.
89-161.
Supreme Court of Alabama.
July 27, 1990.
*245 Barry W. Hair of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
Bibb Allen and Richard E. Smith of Rives & Peterson, Birmingham, for appellee Bill Patridge, d/b/a Off-Road Birmingham.
William A. Scott, Jr. and Amy K. Myers of Clark & Scott, Birmingham, for appellee Eastwood Ford, Inc.
STEAGALL, Justice.
Plaintiff Michael Carmen Caudle appeals from summary judgments in favor of defendants Bill Patridge, d/b/a Off-Road Birmingham, and Eastwood Ford, Inc., in his products liability suit against them.[1] At issue is a "conversion kit" sold by Patridge, which was used to convert a 1973 Ford Courier truck from two-wheel drive to four-wheel drive; the truck was later traded and Eastwood Ford subsequently sold the truck as modified. Caudle was severely injured when the truck flipped over while he was a passenger in it.
Michael McCullars initially purchased the truck in 1982 and spoke with Patridge, the operator of a business known as Off-Road Birmingham, shortly thereafter about converting the truck's driving mechanism. Pursuant to their conversation, Patridge ordered a conversion kit from Low Manufacturing, Inc.[2] After receiving the kit, Patridge opened it, with McCullars, to make sure all of the parts were present. The service manual that came with the kit contained this admonition:
Patridge advised McCullars on how to install the kit and discussed with him the tools necessary for the installation.
Aside from the conversion, McCullars also replaced the truck's four-cylinder engine with a Ford 302-cubic inch V-8 engine. After he completed all of the modifications, McCullars took the truck by Off-Road Birmingham, as Patridge had asked him to do, so that someone there could "[look] up under it." McCullars drove the truck approximately 2,000 miles and then traded it to Eastwood Ford, an automobile dealership, in February 1984.
Later that month, Eastwood Ford sold the truck to James Jones "as is." Jones sold the truck to Gary Jackson on May 24, 1984. On the date of the accident, Jackson and Caudle were traveling on Interstate Highway 65 when Jackson began experiencing mechanical difficulty with the truck. After he placed the truck's transmission in neutral, the truck began skidding diagonally to the left toward the median. While in the skid, a left tire blew out and the truck flipped over twice. As a result of the crash, Caudle suffered permanent brain damage and permanent total paralysis.
In his order entering summary judgment for Patridge,[3] the trial judge stated:
(Emphasis added.)
At issue is the propriety of the summary judgments in favor of Eastwood Ford and Patridge. The counts of Caudle's complaint pertinent to this appeal are: 1) negligent failure to warna claim under the Alabama Extended Manufacturer's Liability Doctrine; 2) negligence and wantonness in the sale of the conversion kit; and 3) breach of an express warranty and breach of an implied warranty of fitness for a particular purpose. Caudle argues that Patridge and Eastwood Ford had a duty to provide a warning somewhere in the truck regarding the truck's altered handling characteristics due to the conversion and specifically to warn that such vehicles are more prone than standard vehicles to flip because of the change in the center of gravity.
Initially, we find it irrelevant that Caudle was a passenger in the truck three years after the conversion. Caudle need not have purchased the kit to have a cause of action (due to the abolition of the privity of contract requirement), because he was obviously a person who could foreseeably be injured by virtue of his presence in the truck as a passenger.
Prior to the enunciation of the Alabama Extended Manufacturer's Liability Doctrine (hereinafter the "AEMLD") in Casrell v. Altec Industries, Inc., 335 So. 2d 128 (Ala.1976), and Atkins v. American Motors Corp., 335 So. 2d 134 (Ala.1976), recovery in products liability cases was limited to recovery against manufacturers. However, Casrell expanded the manufacturer's liability doctrine of earlier cases to include not only the manufacturer but also the supplier and seller. In qualifiedly adopting the concept of strict liability contained in § 402A of the Restatement (Second) of Torts, Atkins held that, in order to establish liability:
335 So. 2d at 141. Thus, there was a shift in emphasis from the seller's conduct to the defective nature of the product.
A few years later, this Court fully reviewed the plaintiff's burden of proof in Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981), and emphasized that it is not enough to show that the product failed to perform its intended use and that the plaintiff was injured. The plaintiff must show that the product was unreasonably dangerous when it left the defendant's control, that it was substantially unaltered when the plaintiff used it, and that it proximately caused the plaintiff's injuries. In order to prove the product's defective nature and its nexus with the plaintiff's injuries, "ordinarily, expert testimony is required because of the complex and technical nature of the commodity." 395 So. 2d at 995.
Caudle submitted two affidavits from Billy S. Peterson (a mechanical/consulting engineer in the field of failure analysis and accident reconstruction) in opposition to the defendants' motions for summary judgment. Peterson stated that the truck's center of gravity was substantially altered by the installation of the four-wheel drive conversion kit and the 302-cubic inch V-8 engine, which he claims adversely affected its handling characteristics and contributed to the rollover.
We find that Caudle has satisfied his burden of offering evidence that would establish liability on the part of Patridge. Caudle provided at least a scintilla of evidence, through Peterson's affidavits, that the conversion kit was unreasonably dangerous when Patridge sold it to McCullars and, further, that Caudle was injured as a result of the installation of the kit on the truck. Patridge was in the business of selling the kit, and there is no evidence that the kit had been substantially changed when McCullars used it.
Patridge argues that, as the trial court held, he did not have a duty to warn Caudle of the dangers the kit posed as installed on the truck. To the contrary, Cazalas v. Johns-Manville Sales Corp., 435 So. 2d 55, 58 (Ala. 1983), makes it clear that he did have a duty to warn in this case:
(Emphasis added; citations omitted.)
Patridge also argues that Caudle has failed to show what kind of warning should have been given. We consider the finding in Outlaw v. Firestone Tire & Rubber Co., 770 F.2d 1012, 1015 (11th Cir.1985), a case involving the AEMLD, instructive on this contention:
Contrary to our holding regarding Patridge, we hold that Eastwood Ford did *248 not owe Caudle a duty to warn of the dangers caused by the modification, because Eastwood Ford was not in the business of selling the conversion kits, as was Patridge. Caudle has not established a prima facie case of liability as to Eastwood Ford under the AEMLD, Atkins, supra; thus, the summary judgment for it was correct.
The three affirmative defenses available to a seller of a defective product are: 1) no causal relation; 2) assumption of the risk; and 3) contributory negligence (misuse of the product). Casrell, supra, and Atkins, supra.
To avail itself of the no-causal relation defense, Patridge must show that he was in the business of distributing or processing for distribution finished products; that he received the product already in a defective condition; that he did not contribute to this defective condition; and that he had neither knowledge of the defective condition nor an opportunity to inspect the product that was superior to the knowledge or to the opportunity of the consumer. Atkins, supra, at 143. See, also, Consolidated Pipe & Supply Co. v. Stockham Valves & Fittings, Inc., 365 So. 2d 968 (Ala. 1978). Although Patridge did not contribute to the defective condition of the conversion kit, he had, at the very least, a superior knowledge of the nature of converted trucks.
With regard to the assumption of the risk defense, whether Caudle knew of and subjectively appreciated the altered handling characteristics of the truck due to the conversion is a jury question. Beloit Corp. v. Harrell, 339 So. 2d 992 (Ala. 1976).
Finally, we find no evidence that Caudle was contributorily negligent (i.e., that he misused the kit), because he did not install the kit on the truck.
For the foregoing reasons, we find that Caudle presented a prima facie case of liability on the part of Patridge under the AEMLD. Thus, the summary judgment in his favor is reversed. The summary judgment for Eastwood Ford is affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1] Because the complaint was filed on March 28, 1985, this case is governed by the "scintilla evidence rule." See Ala.Code 1975, § 12-21-12.
[2] Low Manufacturing was named as a defendant in this action but was voluntarily dismissed without prejudice and is not a party to this appeal.
[3] The trial judge entered a summary judgment for Eastwood Ford on the case action summary sheet approximately two months later. | July 27, 1990 |
a56fbe0d-99fd-46c2-847f-ca131938787a | Fortenberry v. City of Birmingham | 567 So. 2d 1342 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1342 (1990)
Paul R. FORTENBERRY and Sharon A. Fortenberry
v.
CITY OF BIRMINGHAM.
No. 89-830.
Supreme Court of Alabama.
September 14, 1990.
Ralph E. Coleman of Coleman & Coleman, Birmingham, for appellants.
Michael Melton, Birmingham, for appellee.
HOUSTON, Justice.
Paul R. Fortenberry was injured while employed with the City of Birmingham ("the City"). He later sued the City, and other parties, seeking to recover damages for his injuries. Fortenberry's wife, Sharon, joined the suit, seeking to recover damages for loss of consortium. The trial court entered a summary judgment for the City on the ground that the Fortenberrys had failed to comply with the notice-of-claim requirements of Ala.Code 1975, §§ 11-47-23 and XX-XX-XXX.[1] That judgment was made final pursuant to Rule 54(b), A.R.Civ.P., and the Fortenberrys appealed.
After carefully reviewing the briefs and the record, we conclude that the facts of this case are materially indistinguishable from those in Large v. City of Birmingham, 547 So. 2d 457 (Ala.1989), and, therefore, that the trial court properly entered a judgment for the City.
We do note that the Fortenberrys' reliance on Brasher v. City of Birmingham, 341 So. 2d 137 (Ala.1976), is misplaced. In Brasher, the plaintiffs filed the notices of their claims with the mayor's office and requested that the mayor forward those notices to the city's legal department. This Court, construing Tit. 62, § 659, Code 1940 (Recompiled 1958), as preserved by Ala. Code 1975, § 1-1-10,[2] held that the plaintiffs *1343 had substantially complied with the notice-of-claim requirements. However, the plaintiffs in Large and in the present case, unlike the plaintiffs in Brasher, failed to file notices of claims with the city. The following quote from Large is equally applicable here:
547 So. 2d at 458.
Section 11-47-23 contemplates the filing of a notice of a claim for damages with the city clerk. Although the filing of a notice of claim under the circumstances in Brasher may constitute substantial compliance with the requirements of §§ 11-47-23 and XX-XX-XXX, the complete failure to file such a notice does not.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Section 11-47-23 provides:
"All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred." (Emphasis added.)
Section 11-47-192 provides:
"No recovery shall be had against any city or town on a claim for personal injury received, unless a sworn statement be filed with the clerk by the party injured or his personal representative in case of his death stating substantially the manner in which the injury was received, the day and time and the place where the accident occurred and the damages claimed."
[2] Section 659, a local law applicable only to the City of Birmingham, read as follows:
"No suit shall be brought or maintained nor shall any recovery be had against the city on a claim for personal injury, or for neglect or wrongful injury to personal property, unless within ninety days from the receipt of such injury, a sworn statement be filed with the city clerk, or the city officer corresponding thereto, by the party injured, stating substantially the manner in which the injury was received and the day and time and place where the accident occurred, and the damage claimed, and stating with substantial accuracy the nature and character of the injury received and the street and house number where the party injured resides."
This section was held unconstitutional in Crandall v. City of Birmingham, 442 So. 2d 77 (Ala. 1983). | September 14, 1990 |
79a5281d-ffa0-447b-ba30-b21229174fea | Salisbury v. Semple | 565 So. 2d 234 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 234 (1990)
Charles R. SALISBURY
v.
H. Charles SEMPLE.
89-281.
Supreme Court of Alabama.
June 29, 1990.
Davis Carr and Stephen L. McDavid, Mobile, for appellant.
Vincent F. Kilborn and M. Lloyd Roebuck, Mobile, for appellee.
SHORES, Justice.
This appeal involves a declaratory judgment action seeking to set aside a contract between two ophthalmologists. Each party filed a motion for summary judgment; the trial court granted the defendant's motion, and held that the contract was enforceable. From that order, the plaintiff has appealed. We affirm.
The defendant, Dr. H. Charles Semple, is an ophthalmologist who began practicing in Mobile, Alabama, in 1962. In 1984, the plaintiff, Dr. Charles R. Salisbury, joined the defendant's practice as an associate ophthalmologist. In 1985, the defendant decided to retire from the practice of medicine. The defendant agreed to sell his medical practice, including the equipment, goodwill, and an optical business, to the plaintiff. The parties entered into a written purchase/sale agreement on July 24, 1985. The agreement provided that the *235 maximum purchase price would be $900,000, payable over an 11-year period. The payments were to be made in monthly installments; part of the payment was a fixed amount and part of the payment was a percentage of the plaintiff's gross income. Paragraph 7 of the agreement provided:
Paragraph 13 of the agreement provided:
The plaintiff made monthly payments pursuant to the contract until 1989; when he ceased making payments, the plaintiff had paid a total of $374,778 to the defendant. On September 12, 1989, the plaintiff filed this action, seeking a declaration that the purchase agreement was void and unenforceable because it contained a covenant not to compete. The plaintiff does not allege that the defendant violated the covenant not to compete. In the complaint, the plaintiff further alleged that the defendant owed him $143,444 because that amount was overpaid by mistake under the agreement.
The plaintiff filed a motion for summary judgment on October 5, 1989. In support of his motion, the plaintiff later filed the affidavit of Terry Buck, his accountant. Buck stated in the affidavit that, for the purpose of setting up bases for tax preparation on the assets purchased from the defendant in 1985, he made the following calculations: He reduced the projected payout under the contract to a net present value of $485,336; he valued the goodwill of the business at $145,751 (30% of present value); he valued furniture and fixtures at $10,000; he valued equipment at $59,583; he valued the leasehold improvements at $12,000; and he valued the non-competition clause at $258,502. These valuations were not set out in the purchase agreement, but only in Buck's affidavit, which was filed November 3, 1989.
On October 19, 1989, the defendant filed a counterclaim alleging breach of contract, fraudulent deceit, and misrepresentation. He demanded a judgment in the amount of the entire balance under the contract. On November 6, 1989, the defendant filed a motion for summary judgment on both the declaratory judgment action and on the breach of contract count of his counterclaim. In support of his motion, the defendant filed his sworn affidavit. In the affidavit, the defendant stated that he retired from the practice of medicine due to his own declining health. The defendant stated that although the plaintiff was aware that he could no longer continue to practice, the plaintiff suggested that a covenant not to compete be inserted into the purchase agreement. The defendant testified further in his affidavit that he agreed to the plaintiff's suggestion, but that his agreement to that covenant was not substantial consideration for the purchase price because the plaintiff knew that the defendant could not compete with the plaintiff for health reasons. According to the affidavit, the defendant suspected that he was not receiving from the plaintiff the amount of money he was actually owed, so he requested an examination of the records as provided for in the purchase agreement. Thereafter, the plaintiff filed the declaratory judgment action and failed to make further timely payments.
After hearing the arguments of counsel on their cross motions for summary judgment, *236 the trial court granted the defendant's motion on the declaratory judgment action and made it final pursuant to Rule 54(b), A.R.Civ.P. The trial court determined that this case is factually similar to Mann v. Cherry, Bekaert & Holland, 414 So. 2d 921 (Ala.1982), and held that the plaintiff was estopped from using the non-competition clause to escape liability from his obligation under the contract.
On appeal, the plaintiff concedes that the portions of the contract relating to the transfer of the physical assets and goodwill are enforceable, but he argues that the portion of the contract relating to the covenant not to compete is void and unenforceable. Because 70% of the purchase price was allocated to the covenant not to compete, contends the plaintiff, he is obligated to pay only 30% of the contract price.
Section 8-1-1(a), Ala.Code 1975, provides:
The practice of medicine is a profession under the terms of this statute. However, this Court has held that the inclusion of a covenant not to compete in a contract does not necessarily render void the entire contract. Mann v. Cherry, Bekaert & Holland, 414 So. 2d 921 (Ala.1982). The statute itself provides that a contract containing a covenant not to compete "is to that extent void." The contract remains otherwise valid. Therefore, the entire agreement in this case is not made void by the fact that it included the disputed clause.
The trial court correctly found that this case is factually similar to Mann. In Mann, the parties agreed to the purchase and sale of an accounting practice. The contract contained mutual non-competition covenants; those covenants and a client list were the stated consideration for the contract. The parties stipulated that neither had violated the covenants not to compete. However, the purchaser stopped making payments to the seller after concluding that the covenants rendered the contract void. This Court, through Justice Adams, held that the buyer, who had received all that he had bargained for, should not be allowed to use the unenforceability of the non-competition clauses to avoid his contractual obligations. In Mann, we held that the following principle applied to the facts of that case:
414 So. 2d at 925, quoting Hay v. Fortier, 116 Me. 455, 458, 102 A. 294, 295 (1917). Based on that reasoning, we affirmed the trial court order that upheld the remainder of the contract and required the buyer to pay the agreed purchase price.
The same result is required in the case now before us. The plaintiff admits that the defendant has not violated the covenant not to compete. Furthermore, the plaintiff received the defendant's medical practice, the fixtures, the optical business, and the goodwill, as contemplated by the contract. In short, the plaintiff has received all that he bargained for. We hold that the plaintiff, like the buyer in the Mann case, is now estopped from refusing to perform his obligation to pay the agreed purchase price under the contract simply because it contains a covenant not to compete. We note that any other result would be particularly inequitable in view of the fact that the covenant not to compete was included in the contract at the plaintiff's request.
For the foregoing reasons, the judgment of the Circuit Court of Mobile County is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | June 29, 1990 |
c940ce60-b997-496c-8a10-c1580fe1e422 | Thomas v. Principal Financial Group | 566 So. 2d 735 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 735 (1990)
Barbara Caroline THOMAS
v.
PRINCIPAL FINANCIAL GROUP, a/k/a or d/b/a Principal Mutual Life Insurance Company, a corporation.
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY
v.
Barbara Caroline THOMAS.
88-834, 88-925.
Supreme Court of Alabama.
August 3, 1990.
*736 John T. Crowder, Jr. and Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder and Brown and Mary Beth Mantiply, Mobile, for appellant/cross-appellee.
Forrest S. Latta and Lynn Etheridge Hare of Barker & Janecky, Birmingham, for appellee/cross-appellant.
HOUSTON, Justice.
Barbara Caroline Thomas sued Principal Financial Group, d/b/a Principal Mutual Life Insurance Company ("Principal Mutual"), seeking damages for breach of contract and bad faith refusal to pay insurance benefits. At trial, Ms. Thomas's motion for a directed verdict on the contract claim and Principal Mutual's motion for a directed verdict on both claims were denied and the case was submitted to a jury, which awarded Ms. Thomas $1,000 on her breach of contract claim and $750,000 on her bad faith claim. The trial court entered a judgment on that verdict. Principal Mutual moved for a judgment notwithstanding the verdict on both claims or, in the alternative, a new trial. The trial court entered for Principal Mutual a judgment notwithstanding the verdict on the bad faith claim, but left intact the judgment for Ms. Thomas on the contract claim. Ms. Thomas appealed from the judgment for Principal Mutual on the bad faith claim, and Principal Mutual cross-appealed from the judgment for Ms. Thomas on the contract claim. We affirm the judgment for Ms. Thomas on the contract claim; we reverse the judgment for Principal Mutual on the bad faith claim and remand the case with directions.
The University of South Alabama Medical Center ("the University") contracted with Principal Mutual for group life insurance for its employees and their dependent children. The policy reads, in pertinent part, as follows:
Ms. Thomas, an employee of the University, had a daughter, Melinda Warren, who in July 1984 had enrolled in a 1200-hour work-study course in cosmetology at the Mobile Academy of Hair Design ("Mobile Academy"), when she was 21 years old. The course was not taught on a quarter or semester basis, but, instead, on a continuous basis until a degree was earned. After paying full tuition and after attending classes for a period of time, Ms. Warren became disabled and could not attend school after August 1985 due to ovarian cancer; she died of ovarian cancer in March 1987, at the age of 24. At the time of her death, Ms. Warren was unmarried and was dependent upon her mother for her principal support and maintenance. With the help of Janice Rehm, a representative of the University's personnel department, Ms. Thomas filed a claim with Principal Mutual for the $1,000 life insurance benefit that was payable for the death of a "dependent." JoAnn Robbins, a claims examiner with Principal Mutual, contacted *737 Ms. Rehm and inquired as to whether Ms. Warren was "attending school on a fulltime basis" at the time of her death. Ms. Rehm contacted Ms. Thomas and Betty Jo Tanner, the owner of the Mobile Academy. Ms. Rehm relayed the information that she received from Ms. Thomas and Ms. Tanner to Ms. Robbins, who made the following notation in the claim file:
In accordance with company procedure, Ms. Robbins prepared an evaluation sheet on Ms. Thomas's claim and sent it to her supervisor, Pam Davis, recommending that the claim be denied:
Ms. Davis approved that recommendation and made the following notation on the evaluation sheet:
The evaluation sheet was then forwarded by Ms. Davis to her supervisor, Mike Wallace, for a final determination as to whether the claim would be paid. Wallace decided to deny the claim and he wrote "agree" on the evaluation sheet. Thereafter, Ms. Robbins wrote a letter to Ted Ferguson, the personnel director at the University, stating in part:
Ms. Thomas and her attorney wrote letters to Ms. Robbins, requesting that Principal Mutual reconsider its denial of her claim. Upon receipt of these letters, Ms. Robbins conducted a second review of the claim and prepared a second evaluation sheet, upon which she noted:
This evaluation sheet was then sent to Ms. Davis, who wrote "agree" on it. The claim was then reviewed jointly by Nancy Ford, another claims examiner, and Merle Kaplan, the senior claims consultant. Kaplan made the following notation on the evaluation sheet:
Thereafter, Ms. Davis wrote a letter to Ms. Thomas's attorney stating that Principal Mutual's initial decision to deny the claim would stand. Upon receipt of this letter, Ms. Thomas filed suit.
Principal Mutual contends that the trial court erred in denying its motions for a directed verdict and judgment notwithstanding the verdict on the contract claim because, it argues, there was no fact question for resolution by the jury. Principal Mutual maintains that the policy clearly provided that the $1,000 benefit was payable to Ms. Thomas only if her daughter was a "dependent" at the time of her death; that to be a "dependent," Ms. Warren had to be "attending school on a fulltime basis"; that the undisputed evidence showed that she had not been enrolled in, nor attending, school for approximately 18 months immediately preceding her death; and, therefore, that Ms. Thomas could not recover under the policy.
Ms. Thomas argues, on the other hand, that the words "attending school on a fulltime basis" are ambiguous; that the undisputed evidence showed that Ms. Warren was enrolled in the Mobile Academy at the time of her death and was "attending school on a full-time basis" within the meaning of the policy, even though she had not attended classes for approximately 18 months immediately preceding her death; and, therefore, that the trial court did not err in denying Principal Mutual's motions for a directed verdict and judgment notwithstanding the verdict. The thrust of Ms. Thomas's argument is that she, not Principal Mutual, was actually entitled to a directed verdict on the contract claim. This argument is based upon her claim that Ms. Warren did not lose her status as a "dependent" under the policy because of the fact that the illness that eventually led to her death rendered her physically incapable of attending school prior to her death. Ms. Thomas argues strenuously that the evidence showed that under the circumstances of this case Principal Mutual contemplated that payment would be made. For the following reasons, we hold that a fact question was presented as to whether Ms. Warren was a "dependent" within the meaning of the policy at the time of her death.
This action was not pending on June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12. Thus, Principal Mutual would have been entitled to a judgment as a matter of law if, viewing the evidence in a light most favorable to Ms. Thomas, Ms. Thomas failed to present substantial evidence that Ms. Warren was a "dependent" within the meaning of the policy at the time of her death. Watters v. Lawrence County, 551 So. 2d 1011 (Ala. 1989). "Substantial evidence" has been defined by the Legislature 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." § 12-21-12. In West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989), this Court, construing § 12-21-12, stated that "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."
The trial court correctly concluded as a matter of law that, under certain clear language of the policy, Ms. Warren's status as a "dependent" was to be determined as of the date of her death. Alpine Constr. Co. v. Water Works Bd. of the City of Birmingham, 377 So. 2d 954, 956 (Ala.1979) ("[t]here is scarcely a rule more firmly established than that the court, not the jury, will interpret the meaning of a contract, whether oral or written, unless the court determines the contract to be ambiguous and one of the parties makes an offer of proof as to surrounding facts and circumstances which would clarify the contract's meaning, in which case it is within the province of the jury to ascertain those facts and draw such inferences from them as are necessary to the interpretation of the contract, upon proper instructions by the court"). The trial court concluded, however, that the words "attending school on a full-time basis" were ambiguous under the circumstances, and it instructed the jury to determine whether Ms. Warren was a "dependent" within the meaning of the policy at the time of her death.
*739 The words "attending school on a fulltime basis" are not patently ambiguous; that is, on their face they are clear and intelligible and suggest but a single meaning. "Attending" is the present participle of "attend." "Attend" is defined in The American Heritage Dictionary of the English Language (1969) as "to be present at: attend class." "Full-time," used in the policy as an adjective, is defined in The Random House Dictionary of the English Language (1971) as "working or operating the customary number of hours in each day, week, or month." Thus, the words "attending school on a full-time basis," at least on their face, envision presence in school for the normal or standard period of time required. If this were the end of our inquiry, we would be compelled to hold the trial court in error for denying Principal Mutual's motions for a directed verdict and judgment notwithstanding the verdict, because the undisputed evidence showed that Ms. Warren was not attending school at the Mobile Academy at the time of her death and had not been doing so for approximately 18 months prior thereto. However, if all of the evidence is considered and viewed in a light most favorable to Ms. Thomas, as it must be in this case, it is apparent that the policy language does suffer from a latent ambiguity. An ambiguity is latent when the language employed is clear and intelligible and suggests but a single meaning but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings. Black's Law Dictionary (5th ed. 1979) (defining "ambiguity"); Medical Clinic Bd. of the City of Birmingham-Crestwood v. Smelley, 408 So. 2d 1203 (Ala.1981).
The record in the present case reveals that the policy in question was a life insurance policy that was payable upon the death of a "dependent," whether death was the result of an accident or of an illness; that each claim submitted to Principal Mutual was reviewed on a case-by-case basis; that policy language was not always interpreted literally; that a manual used by Principal Mutual's claims examiners stated: "All policy provisions shall be interpreted in accordance with the common understanding of their language. The spirit or intent of the provision as distinguished from a narrow interpretation of the language shall be given effect"; that Edward Kahalley, Jr., an insurance consultant and administrator with over 20 years of experience in interpreting group insurance policies, and with knowledge of the practices and customs of the insurance industry, gave undisputed testimony as an expert that Ms. Warren would have been considered a "dependent" within the meaning of the policy by all other insurers within the industry because she was rendered physically incapable of attending school by a debilitating illness that eventually caused her death;[1] that there was a conflict in the *740 evidence as to whether Ms. Warren was enrolled in the Mobile Academy at the time of her death; and that at least two of Principal Mutual's claims examiners, Ms. Robbins and Mr. Wallace, seemed confused as to exactly what the policy language meant. Although Ms. Davis and Mr. Kaplan appear to have steadfastly maintained that the policy language did not contemplate that a person in Ms. Warren's position would be considered a "dependent" within the meaning of the policy, as previously shown, there was substantial evidence that it did contemplate that. We hold, therefore, that the trial court did not err in allowing the jury to determine whether Ms. Warren was "attending school on a full-time basis" and, thus, whether she was a "dependent" at the time of her death. Alpine Constr. Co. v. Water Works Bd. of the City of Birmingham, supra.
Ms. Thomas contends that the trial court erred in entering a judgment for Principal Mutual notwithstanding the verdict on her bad faith claim. She argues that a fact question was presented as to whether Principal Mutual was guilty of bad faith in denying her claim. Principal Mutual, on the other hand, argues that there was no fact question to be resolved by the jury and, therefore, that the trial court did not err in entering a judgment for it as a matter of law.
This Court first recognized an actionable tort for an insurer's intentional refusal to pay a claim in Chavers v. National Security Fire & Cas. Co., 405 So. 2d 1 (Ala.1981). The Chavers Court held that there was an implied-in-law duty of good faith and fair dealing in contractual relationships between insurers and their insureds. Bad faith was defined as "the intentional failure by the insurer to perform this duty implied in law." 405 So. 2d at 5. The Court went on to hold:
405 So. 2d at 7. Accordingly, a two-tiered test was established by which to determine whether an insurer had acted in bad faith in refusing to pay a claim. In recognizing the new tort, the Court in Chavers explained that the policy considerations underlying the disallowance of a negligence standard of conduct in actions by insureds against their insurers did not proscribe a cause of action arising out of intentional misconduct by insurers:
405 So. 2d at 6.
The Chavers test was refined and clarified in Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916, 924 (Ala.1981):
Gulf Atlantic's instructions evidence this Court's initial concern that the existence vel non of bad faith must not be determined in a vacuum, but under the circumstances existing at the time the insurer denied the claim.
The elements of a bad faith claim were summarized in National Security Fire & Cas. Co. v. Bowen, 417 So. 2d 179, 183 (Ala. 1982), as follows:
Following the decisions in Chavers, Barnes, and Bowen, this Court established what is now known as the "directed verdict on the contract claim standard" in bad faith cases. See Burkett v. Burkett, 542 So. 2d 1215, 1218 (Ala.1989). Writing for the Court in National Savings Life Ins. Co. v. Dutton, 419 So. 2d 1357, 1362 (Ala.1982), Justice Shores stated:
The Dutton Court's characterization of a plaintiff's burden of proof as a "heavy" one was no doubt prompted by the Court's previous recognition in Chavers of the necessity for allowing insurers a broad range of freedom to thoroughly evaluate claims and to decline payment in nonmeritorious cases. However, keenly aware of the fact *743 that there were countervailing policy considerations that weighed in favor of an insured's right to have his claim properly evaluated and promptly paid by the insurer, the Dutton Court, in articulating the standard to be applied in "normal" or "ordinary" bad faith cases, allowed for a different standard to be applied in certain unusual or extraordinary cases. Justice Jones, concurring specially in Dutton, elaborated on the majority's opinion:
Later, Justice Jones, in his opinion concurring specially in Safeco Insurance Co. of America v. Sims, 435 So. 2d 1219, 1224 (Ala. 1983), wrote:
Indeed, this Court was later confronted with cases in which the "directed verdict on the contract claim standard" was deemed inapplicable and the insurers were not permitted to avoid bad faith liability by putting on evidence sufficient to defeat the plaintiffs' motions for a directed verdict on the contract claims. In Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala. 1984), this Court stated that even if the plaintiff had not been entitled to a directed verdict on the contract claim, the bad faith claim would have been properly submitted to the jury. The Court in Kountz determined from the evidence presented at trial that the insurer intentionally failed to investigate the claim sufficiently to determine the existence of a valid reason for denying payment (i.e., the insurer failed to determine that the reason for the removal of the plaintiff's teeth was an injury, as claimed, not the pre-existing chronic periodontal disease). See, also, Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050 (Ala.1987). In both Kountz and Aetna, the Court, quoting Gulf Atlantic Life Ins. Co. v. Barnes, supra, recognized that an intentional failure on the part of an insurer to determine whether there was a lawful basis for denying a claim could be established with proof that the insurer either intentionally or recklessly failed to properly investigate the claim or to subject the results of the investigation to a cognitive evaluation and review. In Aetna, the Court stated: "Considering the fact that the decision to deny [the claim] was made without the benefit of `critical' sections of the medical file, the jury could find that the claim was not `properly investigated,' and that there was a `reckless indifference to facts or to proof.'" 505 So. 2d at 1053. See, also, Blue Cross & Blue Shield of Alabama v. Granger, 461 So. 2d 1320 (Ala.1984), and Carter v. Old American Ins. Co., 544 So. 2d 917 (Ala. 1989).
In Jones v. Alabama Farm Bureau Mutual Casualty Co., 507 So. 2d 396 (Ala. 1987), the plaintiffs had a homeowner's policy that insured against damage caused directly by perils such as lightning, but not against damage caused indirectly, such as from a tree falling on the power line. During a storm the plaintiffs experienced problems with their electrical service, and several items of personal property were damaged. The plaintiffs and Alabama Farm Bureau Mutual Casualty Company ("Farm Bureau") disputed whether the damage was caused directly by a lightning strike or by a power surge when a tree limb fell on the power line. A Farm Bureau adjuster claimed that the plaintiff told him that the damage resulted when a tree limb fell on the power line. The adjuster's decision was based solely on what the plaintiff allegedly had told him. Farm Bureau argued that the factual dispute as to what the plaintiff had told the adjuster in the conversation precluded a directed verdict in favor of the plaintiff in the breach of contract action, and, therefore, under Dutton entitled Farm Bureau to a summary judgment on the bad faith claim. However, we held:
507 So. 2d at 400-01.
In United American Ins. Co. v. Brumley, 542 So. 2d 1231 (Ala. 1989), the insurer failed to pay the insured's claim under a "Medicare supplement" policy that read as follows:
The insured, who was 64 years old, was not covered by Medicare at the time he submitted his claim. This Court held that the bad faith claim had been properly submitted to the jury, stating, in pertinent part, as follows:
542 So. 2d at 1235-36.
As we stated earlier in this opinion, neither Ms. Thomas nor Principal Mutual was entitled to a judgment as a matter of law on the breach of contract claim. A fact question existed as to whether Ms. Warren was a "dependent" under the policy at the time of her death (i.e., a fact question existed as to whether she was "attending school on a full-time basis"). Ordinarily, if the evidence produced by either side creates a fact question with regard to the contract claim, the bad faith claim must fail. Ms. Thomas argues, however, that even if the trial court did not err in submitting the contract claim to the jury, this case does not fall within the category of a normal bad faith case. Rather, she argues, this is an extraordinary case where the "directed verdict on the contract claim standard" could not be applied. Principal Mutual takes the contrary positionthat there is nothing extraordinary about this case.
After carefully reviewing the record, we conclude that this case is not the "normal" or "ordinary" case to which the "directed verdict on the contract claim" standard is applicable. The evidence presented at trial persuades us that this case falls within the category of an extraordinary case, in which it would not be appropriate to allow the insurer to obtain a judgment as a matter of law on the bad faith claim by putting on evidence sufficient to defeat the plaintiff's motion for a directed verdict on the contract claim.
The record reveals that at the time she made her initial recommendation to deny Ms. Thomas's claim, Ms. Robbins was *746 aware that the only reason Ms. Warren had stopped attending the Mobile Academy was "because she was sick." Ms. Robbins's notation in the claim file indicates that she knew that Ms. Warren had undergone extensive chemotherapy treatments, had been in the hospital on numerous occasions, and had been completely bedridden for approximately six months immediately preceding her death. Ms. Robbins testified at trial that she based her recommendation on the information that had been given to her by Ms. Rehm. Ms. Robbins further testified that it was her understanding that Ms. Warren was neither enrolled in nor attending school at the time of her death and had not been for approximately 18 months prior thereto. Ms. Robbins also testified at trial that, in her opinion, Ms. Warren was not "attending school on a full-time basis," and, thus, that she was not a "dependent" at the time of her death. However, portions of Ms. Robbins's deposition testimony were admitted at trial. The following is an excerpt from that testimony:
The jury could have inferred from this testimony that Ms. Robbins was confused as to whether Ms. Thomas was entitled to recover under the policy. Based upon the information that she placed in the claim file, the jury also could have found that had Ms. Robbins carefully reviewed the claim, she would have realized that Ms. Warren had to withdraw from school after September 1985 because she was physically incapable of attending classes. Viewing the evidence in a light most favorable to Ms. Thomas, as we are required to do, we think that the jury could have reasonably found from all of the evidence (i.e., the information in the claim file, the rule prohibiting a narrow and unreasonable interpretation of policy language that was contained in the claims manual, and the custom or practice within the insurance industry of paying such claims) that, at the time she made her initial recommendation to deny the claim, Ms. Robbins simply failed to subject the results of her investigation *748 (i.e., the information accumulated in the claim file) to a cognitive evaluation and review.
Mr. Wallace testified at trial that he carefully reviewed Ms. Thomas's claim and that he denied it because the claim file indicated that Ms. Warren was not enrolled in and did not attend the Mobile Academy after September 1985. However, portions of his deposition testimony were also admitted into evidence at trial. The record shows the following:
Although he testified at trial that, in his opinion, Ms. Warren was not "attending school on a full-time basis" and, thus, that she was not a "dependent" at the time of her death, the jury could have reasonably inferred from his testimony that Mr. Wallace was also confused as to exactly what circumstances would warrant payment. In fact, viewing his testimony as a whole, we conclude that a fact question was presented as to whether Mr. Wallace carefully reviewed Ms. Thomas's claim, or, instead, simply "rubber stamped" the recommendations of Ms. Robbins and Ms. Davis. The credibility of both Ms. Robbins and Mr. Wallace was certainly a matter for the jury.
As previously noted, Ms. Davis and Mr. Kaplan appear to have steadfastly maintained that Ms. Warren lost her status as a "dependent" under the policy after September 1985, notwithstanding the fact that she was rendered physically incapable of attending classes by a terminal illness. We note that Ms. Ford did not testify. We also note that Mr. Wallace apparently did not participate in the second review of Ms. Thomas's claim.
The existence vel non of bad faith must not be determined in a vacuum, but under the particular circumstances of each case existing at the time the insurer denied the claim. The evidence in this case was such that the jury could have reasonably found: that Principal Mutual contracted with the University to provide life insurance for its employees and their "dependents"; that the policy was payable upon the death of a "dependent," whether death was the result of an accident or an illness; that each claim submitted to Principal Mutual was reviewed on a case-by-case basis; that policy language was not always interpreted literally; that a manual promulgated by Principal Mutual and used by its claims examiners prohibited a narrow and unreasonable interpretation of the language of the policy; that according to the custom and practice within the insurance industry, Ms. Warren should have been considered to be a "dependent" within the meaning of the policy because she was rendered physically incapable of attending school by a debilitating illness that eventually caused her death; that at least two of the examiners who reviewed Ms. Thomas's claim, Ms. Robbins and Mr. Wallace, exhibited confusion as to exactly what circumstances would warrant payment within the context of this case; that all of the examiners involved in the review of the claim, including Ms. Davis and Mr. Kaplan, apparently disregarded the claims manual and placed a narrow and restrictive interpretation on the policy language that was contrary to the interpretation generally placed on such language within the industry; and finally, and perhaps most importantly, that throughout the claims review process, Principal Mutual's examiners either intentionally or recklessly failed to subject the results of the investigation to a cognitive evaluation and review.
In the letter denying the claim, Ms. Robbins misstated the facts: "[Ms.] Warren was last on the role [sic] at school through September 1985. She then became disabled and died on March 10, 1987." (Emphasis supplied.) Principal Mutual's claim file showed: "Only reason she wasn't in school beyond 9/85 was because she was sick." It appears to us that Principal Mutual refused to believe what all of the evidence that it had before it showedthat Ms. Warren could not attend school from September 1985 until her death because *750 she was dying of cancer. Ms. Warren's physician testified that he did not believe that Ms. Warren could physically attend school after June 1985. However, she did attend through August 1985. There was nothing to substantiate Principal Mutual's assertion that Ms. Warren became disabled after she had ceased attending school. To the contrary, all of the evidence showed that Ms. Warren stopped attending school because she was physically unable to attend.
All of this illustrates why this case falls within the category of unusual or extraordinary cases. If the "directed verdict on the contract claim standard" were applied, Principal Mutual would be allowed to obtain a judgment as a matter of law on the bad faith claim, even though a factual question was presented as to whether its claims examiners either intentionally or recklessly failed to subject the results of the investigation to a cognitive evaluation and review and, thereby intentionally failed to determine prior to denying the claim whether there was, in fact, a lawful basis for denial. This Court's decisions in Aetna Life Ins. Co. v. Lavoie, supra, and Continental Assurance Co. v. Kountz, supra, would not allow such a result. Furthermore, the very existence vel non of Principal Mutual's alleged lawful basis for denying Ms. Thomas's claimthat Ms. Warren was not a "dependent" within the meaning of the policyis itself a question of fact only because of the testimony of employees of Principal Mutual (i.e., the examiners who reviewed the claim) as to the intent of the policy. Under these circumstances, the "directed verdict on the contract claim standard" did not bar the jury's consideration of the bad faith claim. See United American Ins. Co. v. Brumley, supra, and Jones v. Alabama Farm Bureau Mutual Casualty Co., supra. For the foregoing reasons, we hold that the trial court erred in entering a judgment notwithstanding the verdict for Principal Mutual on the bad faith claim.
We note that because the trial court entered a judgment as a matter of law for Principal Mutual on the bad faith claim, it was unnecessary for it to consider whether the $750,000 damages award was excessive, an issue that was raised by Principal Mutual in its post-judgment motion. Any future consideration of this issue should be in accordance with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala. 1986), and Green Oil Co. v. Hornsby, 539 So. 2d 218 (Ala.1989).
88-834 REVERSED AND REMANDED WITH DIRECTIONS.
88-925 AFFIRMED.
HORNSBY, C.J., and JONES and ADAMS,[*] JJ., concur.
ALMON, STEAGALL and KENNEDY, JJ., concur in the result.
MADDOX, J., concurs in part and dissents in part.
MADDOX, Justice (concurring in part; dissenting in part).
Mr. Justice Almon, in a dissenting opinion in Chavers v. National Sec. Fire & Cas. Co., 405 So. 2d 1 (Ala.1981), said the following about the new tort of bad faith refusal to pay an insurance claim established in that case:
405 So. 2d at 15.
Today's opinion by the Court confirms the fears expressed by Mr. Justice Almon in the Chavers case, and once again authorizes the recovery of punitive damages against an insurer for failing to pay a claim that was seriously disputed, the validity of which has only finally been determined today in this appeal. To authorize the recovery of punitive damages in such a factual setting, in my opinion, is a misapplication of the law of contracts, and effectively allows for the recovery of punitive damages against an insurer without affording the insurer due process of law. The majority's conclusion that this case "falls within the category of an unusual or extraordinary case" tends to confirm what Mr. Justice Almon pointed out in his dissent in Chaversthat there are no "parameters" or boundaries for the tort. I believe that the opinion expands the tort of bad faith and does not correctly state the law of contracts, the reasonable expectancies of the parties under such contracts, and the damages that can be awarded in cases of a breach. Consequently, I am compelled to dissent once again, as I have done over the years since the tort of bad faith was recognized.[2] I hesitate to continue to express a dissenting view, but I am convinced that, under the facts of this case, the trial judge was correct in granting the insurer's motion for judgment notwithstanding the verdict, and I am especially troubled by the holding, which allows the recovery of punitive damages for an insurer's failure to pay a claim that has only today been judicially determined to be a valid claim.
My view of the law in this area has been expressed in several dissenting and special concurring opinions. In Aetna Life Ins. Co. v. Lavoie, 505 So. 2d 1050 (Ala. 1987), I spelled out in some detail in a special concurrence my views on the tort of bad faith refusal to pay an insurance claim, and I attempted to state my view of the law of insurance contracts and the failure to pay claims and how the matter could best be handled in view of the public policy considerations involved. I also stated in that special concurrence the reasons for the dissents I had previously filed in bad faith cases. I do not restate those views here, but refer the reader to that special concurrence. I still believe the views I expressed there to be legally correct.[3]
Even though my view of the law of insurance contracts has not received much following, and even though the legislature has not seen fit to enter the field of regulating the new tort except to pass legislation setting a cap on the recovery of punitive damages, I continue to believe that the legislature is the proper body to resolve the public policy questions surrounding these controversies and that the tort of bad faith failure to pay is an inappropriate method for resolving the public policy issues.
Accepting the fact that this Court has established the tort of bad faith failure to pay an insurance claim, I cannot accept the conclusion of the majority that this case "falls within the category of an unusual or extraordinary case." In my opinion, this case is no different from the ordinary case in which there is a dispute about insurance coverage. Because of that fact, I am convinced that the plaintiff should not be permitted to recover punitive damages in any amount, and certainly not in the sum of $750,000. I was almost convinced that the trial court was incorrect in denying the insurer's motion for judgment notwithstanding the verdict on the contract claim, on the ground that the evidence showed that the dependent was not enrolled in school on the date of her death, but there was evidence that the contract language was ambiguous and that reasonable persons could disagree on the question of coverage. *752 Does that mean that punitive damages should be allowed? I think not.
The issue of coverage was disputed from the beginning and was only finally resolved by this Court today; therefore, the trial judge did not err in granting the insurer's motion for judgment notwithstanding the verdict. Consequently, I must respectfully disagree with the Court's holding that a jury question was presented on the bad faith claim. Also, to allow the recovery of $750,000 in punitive damages, under the facts of this case, has serious "due process" implications, especially in view of the fact that there are no set parameters for determining when such damages are recoverable and what will be the "unusual or extraordinary" case. See my dissent in Pacific Mutual Life Ins. Co. v. Haslip, 553 So. 2d 537, 544 (Ala.1989).
Based on the foregoing reasons, I concur in the judgment in Case No. 88-925, but I dissent in Case No. 88-834.
[1] Mr. Kahalley testified, in pertinent part, as follows:
"Q. Let me give you a hypothetical to be extra clear: Assume that this young lady is between the ages of 19 and 25. Assume that she is living at home with her mother. Assume that she is dependent upon her mother for her principal support and maintenance. Assume that on March 19th, 1985, she re-enrolled in the Mobile Academy of Hair Design. In May of 1985Oh, at that time she paid her full entry fee for a full 1200 hours. She paid the full $600.00 registration fee and tuition fee for 1200 hours. This was not a school on a quarter or semester basis.... She had her surgery in 1985, May 1985. That Dr. Clarkson has testified that as of June 1985 when she started getting chemotherapy that he would not expect her to be able to attend class any more. Assume that her last dayeven though Dr. Clarkson said in June she was disabled her last day in class was in August of 1985. That in September 1985 she could no longer be physically present in class. And Ms. Tanneralthough she will testify that Melinda was fully paid up, she could come back whenever she couldhad to send her permit back and took her off of her rolls because there was no reason [inaudible] every day and ... she died March 1987. Under the terms of this policy would she be covered for dependent life insurance?
"A. Yes.
"Q. Are you familiar with the practices and customs of the insurance industry?
"A. Yes.
"Q. Is that an opinion that reasonable people in the insurance industry could differ with?
". . . .
"A. Those people who have had any experience with adjudication of claims, that is with actually dealing with the policy language, I
[Footnote one continued on page 740].
don't think they would differ on that opinion, no.
"Q. Let me show you something else that came out of the defendant's own claim file and ask you to read that into the record?
"A. Where it says message. I am not sure I can read that.
"Q. Read just this bottom line for one thing.
"A. `The only reason she wasn't in school beyond 9/85 was because she was sick.'
"Q. Would that further support your opinion that this life insurance policy should have been paid?
"A. Sure.
"Q. And this is a document signed by JoAnn Robbins saying that she knew; is that correct?
"A. I assume so, yes.
"Q. What does it say on 4/24/87? Can you read that into the record?
"A. `Last on roll at school through September `85, last year and ten months in and out of hospital, approximately 30 times. Also went on chemo, out patient' something
"Q. Treatment.
"A. Is that `treatment'? `Last six months before death she was completely bedridden.'
"Q. Would that further support your opinion?
"A. Oh, most definitely."
[*] Justice Adams did not sit at oral argument, but has listened to the audio tape of the arguments.
[2] See my dissenting opinions in Gulf Atlantic Life Ins. Co. v. Barnes, 405 So. 2d 916, 924 (Ala. 1981), and Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala. 1984).
[3] I joined in the disposition of that particular case because of the peculiar facts that surrounded it, as my special concurrence shows. | August 3, 1990 |
26ff1a31-8367-4893-b33e-eb13afcf8c04 | Holland v. City of Alabaster | 566 So. 2d 224 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 224 (1990)
Sherman HOLLAND, Jr.
v.
CITY OF ALABASTER and Kathleen Hill.
88-1641.
Supreme Court of Alabama.
July 6, 1990.
Ralph J. Bolen, Birmingham, for appellant.
Hewitt L. Conwill and William R. Justice, Columbiana, for appellees.
*225 HORNSBY, Chief Justice.
This is a dispute regarding the vacating of a road in Pelham, Shelby County, Alabama. Sherman Holland, Jr., executed a petition for declaration of vacation of a portion of an unnamed road. Pursuant to the request of the mayor of Pelham, Bobby Hayes, he presented this petition to the City of Pelham, which, by resolution, gave its assent to the declaration.
Hayes's affidavit states that Holland is the owner of all land abutting both sides of the portion of the road that was vacated. The affidavit further states that no person "was denied other convenient access to his or her property." The petition filed by Holland alleges that the vacation would "not deprive other property owners of convenient and reasonable means of ingress and egress to and from their property." On April 20, 1987, the mayor and the city council of the City of Pelham passed a resolution vacating the "unpaved and unnamed road being located upon and through the lands fully owned by Sherman Holland, Jr." Subsequent to this resolution, Holland blocked access to the road with piles of dirt.
Holland contends that the vacated road was a chert "all weather" road located in a flood plain. He also claims that the road was a trash dumping site and that a onelane bridge with no guard rails was located on the road. Holland claims that there were no traffic control devices or lights on the road, and that the road was a danger as well as a nuisance to the public. Testimony by the Shelby County engineer, Gary Ray, shows that a fully loaded fire truck or other heavy vehicle would not be safe in crossing the bridge.
The City of Alabaster and Kathleen Hill sued Holland. Hill requested an abatement of an alleged private nuisance and sought damages, contending that Holland's blocking of the road devalued her property by $11,600 due to inconvenience and loss of utility. Alabaster's claim was for the abatement of an alleged public nuisance, i.e., Holland's blocking of the road.
Alabaster and Hill contend that the road was maintained by Shelby County until the date on which the City of Pelham passed the resolution vacating the road. Holland answered the complaint and alleged that Alabaster was not a proper plaintiff because the actions taken concerned a road wholly within the city limits of Pelham and were taken at the request and direction of the City of Pelham. Holland also claims on appeal that the City of Pelham placed barricades and "road closed" signs in the road after it was closed.
Holland filed a motion for summary judgment, relying on the pleadings, various discovery documents and the affidavit of Hayes. Alabaster opposed the motion with an affidavit by Larry Rollan, police chief for the City of Alabaster. Rollan stated that a portion of the road that was blocked by Holland or his agents was within the city limits of Alabaster.[1] He further stated that the road had been used by Alabaster citizens for more than 20 years and that it provided more convenient and quicker access to Highway 31 than was otherwise available. The motion for summary judgment was subsequently denied.
The trial court heard ore tenus evidence without a jury and entered a final judgment ordering the abatement of a public nuisance, specifically Holland's blockage of the road with dirt piles. The trial court held that the private nuisance claim of Mrs. Hill was without merit. The trial court restrained Holland from continuing any further obstruction or damage to the road and from interfering with the use of the road by vehicular or pedestrian traffic. The trial court further set aside the vacation of the road. Holland appeals.
Holland raises several issues on appeal:
1) Whether the trial court erred by not granting Holland's motion for summary judgment; 2) whether the City of Pelham should be joined as a necessary party; 3) *226 whether Holland was justified in relying on the City of Pelham's resolution vacating the road; 4) whether Holland should have been compensated when the circuit court reversed the actions of the City of Pelham; and 5) whether the trial court erred in setting aside the vacation of the road. Holland has, additionally, filed a motion to strike the appellees' brief, contending that the City of Pelham should have been served with the appellees' brief under Rule 44, A.R.App.P. We address these issues below.
This case was heard by the trial court sitting without a jury. Where ore tenus evidence is presented to the trial court, a presumption of correctness exists as to the court's conclusions on issues of fact based on that ore tenus evidence; its determination will not be disturbed unless clearly erroneous, without supporting evidence, manifestly unjust, or against the great weight of the evidence. Gaston v. Ames, 514 So. 2d 877, 878 (Ala.1987); Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So. 2d 1177 (Ala. 1981). However, when the trial court improperly applies the law to the facts, no presumption of correctness exists. Gaston, supra; Smith v. Style Advertising, Inc., 470 So. 2d 1194 (Ala.1985); League v. McDonald, 355 So. 2d 695 (Ala. 1978).
Holland contends that the trial court erred in failing to join the City of Pelham as a necessary party under Rule 19 of the Alabama Rules of Civil Procedure. The rule reads as follows:
(Emphasis added.)
The trial court specifically held that "under the evidence, the City of Pelham does not have an interest [in] the subject matter of the above action such that [in the absence of Pelham the] disposition of this action would leave any of the parties subject to substantial risk of incurring double, multiple, or inconsistent obligations." The court erred in holding that the City of Pelham was not a necessary party.
Rule 19, A.R.Civ.P., provides a two-step process for the trial court to follow in determining whether a party is necessary or indispensable. Ross v. Luton, 456 So. 2d 249, 256 (Ala.1984), citing Note, Rule 19 in Alabama, 33 Ala.L.Rev. 439, 446 (1982). First, the court must determine whether the absentee is one who should be joined if feasible under subdivision (a). If the court determines that the absentee should be joined but cannot be made a party, the provisions of (b) are used to determine whether an action can proceed in the absence of such a person. Loving v. Wilson, 494 So. 2d 68 (Ala.1986); Ross v. Luton, 456 So. 2d 249 (Ala.1984). It is the plaintiff's duty under this rule to join as a party anyone required to be joined. J. C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala. 1981).
406 So. 2d at 849-50. (Emphasis added.)
We note that the interest to be protected must be a legally protected interest, not just a financial interest. Ross, supra; see Realty Growth Investors v. *227 Commercial & Indus. Bank, 370 So. 2d 297 (Ala.Civ.App.1979), cert. denied, 370 So. 2d 306 (Ala.1979). There is no prescribed formula for determining whether a party is a necessary one or an indispensable one. This question is to be decided in the context of each particular case. J. R. McClenney & Son v. Reimer, 435 So. 2d 50 (Ala.1983), citing Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 88 S. Ct. 733, 19 L. Ed. 2d 936 (1968). The absence of a necessary party requires a dismissal of the cause without prejudice or a reversal with prejudice or a reversal with directions. J. C. Jacobs Banking Co. v. Campbell, 406 So. 2d 834 (Ala.1981).
Can complete relief be afforded among those already parties? We do not believe so. The City of Pelham is required under the trial court's order to assume duties of policing and maintaining a road that it wished to vacate. The City of Pelham is also now required to maintain a public thoroughfare, which the evidence shows may or may not be suitable for traffic, without any hearing on the matter. Moreover, the City of Pelham will now incur liability to the public for any failure of maintenance with respect to this road. While ordering Holland to refrain from obstructing the road will provide Hill with a possible route to travel, it does so at the expense of the City of Pelham. We cannot see that Alabaster should be afforded relief of the opening of a road that is not within its city limits, and lies within the city limits of Pelham in the absence of the City of Pelham's presence in the judicial proceedings that afford Alabaster this remedy. This is true particularly in view of the evidence that reasonable alternative means of travel were available to the citizens of Alabaster.
Does the City of Pelham claim an interest relating to the subject of the action so that the disposition of the case without the City, as a practical matter, will impair or impede its ability to protect that interest? We believe so. Although Holland is the party actually claiming that the City of Pelham has an interest, the City of Pelham cannot properly protect its interest in vacating roads within its municipal limits unless it is given a fair hearing before a vacation of such a road is set aside.
We find further support in Boles v. Autery, 554 So. 2d 959, 960-61 (Ala. 1989), and Johnston v. White-Spunner, 342 So. 2d 754, 760 (Ala.1977). In Boles, we held that Autauga County should have been joined as a party to an action to determine whether a particular road was public or private. In that case, the trial court had determined that the road was private and awarded damages in the breach of contract action. This Court wrote:
554 So. 2d at 961.
Johnston involved a boundary line dispute between owners of contiguous lots in a subdivision. One of the issues there concerned whether a road was public or private, and another issue dealt with the proper location of that road. We held in Johnston that the City of Mobile had no less interest in the outcome of an action involving *228 the road than any of the property owners in the subdivision. 342 So. 2d at 760. We stated:
342 So. 2d at 760. (Emphasis added.) As shown by Johnston, the trial court must have jurisdiction over the City of Pelham before proceeding to adjudicate any issues affecting that entity's interests. While both Boles and Johnston dealt with the determination of whether a particular road was public or private, the same analysis must be applied here. Before the Circuit Court of Shelby County can determine whether the action of a city vacating a road is void, the court must have that city before it as a party.
Alabaster and Hill have contended in their briefs that the resolution passed by Pelham vacating the road that is the subject of this appeal was illegal, and consequently that the road was never legally vacated. The trial court specifically found that the vacation met all statutory requirements, yet set the vacation aside on the basis that it created a public nuisance. The record further reveals that the road had been closed for over two years at the time of the trial court's order. The City of Pelham will now be required to maintain the road, police the area, and ultimately clean up the dumping of garbage on the road, all without a hearing as to the city's reasons for vacating the road initially.
The allegations by Alabaster and Hill of illegality and the claims of nuisance are efforts by them to thwart the actions and procedures correctly used by the City of Pelham in vacating roads pursuant to Ala. Code 1975, § 23-4-20. The trial court's further ruling that Holland's actions in blocking the road subsequent to the vacation of the road, at the request of the City of Pelham, constitute a public nuisance improperly aids their efforts. Although the trial court's order implied that the vacation of the road occurred solely through the actions of Holland, the evidence does not show this to be the case.
We hold that the City of Pelham was a necessary party in this action. We therefore reverse and remand this case to the trial court for proceedings consistent with this opinion. Thus, it is not necessary to discuss the other issues raised.
Rule 44, A.R.App.P.
Holland also contends that Alabaster and Hill's brief should be stricken or, alternatively, that the appellees should be required to serve their brief on the City of Pelham as, he contends, Rule 44, A.R. App.P., requires. He asserts that the appellees have challenged the validity of a resolution passed and adopted by the City of Pelham.
Rule 44 states as follows:
We believe the motion made by Holland has merit. However, because we reverse this case on the issue concerning the City of Pelham's being omitted as a necessary party, the motion is denied as being moot.
MOTION DENIED AS MOOT; REVERSED AND REMANDED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Holland initially blocked the road by placing piles of dirt just inside the city limits of Alabaster by mistake. He later moved the dirt to within the city limits of Pelham and it appears that all of the closed portion of the road is within the city limits of Pelham. | July 6, 1990 |
d65750db-50dd-4b7b-8372-147969043f2c | ELEC. SERV. CO. OF MONTGOMERY v. Dyess | 565 So. 2d 244 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 244 (1990)
ELECTRIC SERVICE COMPANY OF MONTGOMERY, INC.
v.
Elton G. DYESS and Susie W. Dyess.
88-1054.
Supreme Court of Alabama.
July 13, 1990.
*245 Dennis R. Bailey of Rushton, Stakely, Johnston and Garrett, Montgomery, for appellant.
Scott A. Powell of Hare, Wynn, Newell & Newton, Birmingham, for appellees.
ALMON, Justice.
This is an appeal from a judgment rendered on a jury verdict awarding Elton and Susie Dyess $500,000 in their negligence action against Electric Service Company of Montgomery, Inc. ("Electric"). The questions presented are whether the trial court erred in denying Electric's motions for directed verdict and j.n.o.v. on the ground that Dyess was contributorily negligent as a matter of law, and whether the trial judge's refusal to consider a juror's affidavit that tended to impeach the jury's verdict was proper.
Elton Dyess was in the business of erecting billboards. In January 1987 he contracted with Electric for Electric to erect six utility poles that would serve as support for a proposed billboard. Dyess supplied Electric with a diagram that showed the desired location of the poles, specified that the first pole was to be set 10 feet from the right-of-way line, that is, a safe distance from nearby electrical power lines, and specified the distance that each pole was to be from the others. Those distances were to be measured using the right-of-way line as a reference point. After Electric completed its work, Dyess and an assistant, using a portable lift known as a "cherry picker," began bolting lengths of angle iron to the poles. Dyess did not measure the distance of the first pole from the right-of-way line before beginning work, but he did measure the distance between each pole, and found that they had been spaced as he had specified in the diagram. He testified that he had hired Electric to do similar work in the past and had not had problems, and that the first pole appeared to be set in compliance with the diagram.
Soon after beginning work, Dyess placed a length of angle iron across the bucket of the cherry picker and began to raise it and himself. Dyess testified that he was generally aware of the hazard posed by the power lines, but that he assumed that all of the poles were set in compliance with his diagram and were therefore a safe distance from the power lines. However, after the cherry picker had risen approximately 16 feet, the length of angle iron came into contact with a power line, and Dyess was badly burned. Dyess was not facing the power lines and did not see them before the angle iron touched them. An investigation following the accident revealed that Electric had placed the first pole approximately 3 feet from the right-of-way line, instead of the specified 10 feet. That error resulted in Dyess's working closer to the nearby power lines than he would have had the poles been set in compliance with the diagram.
Dyess filed an action against Electric, alleging negligence. His wife, Susie Dyess, filed a claim for loss of consortium. Electric filed a motion for a directed verdict, alleging contributory negligence. That motion was denied. After being instructed on negligence and contributory negligence, the jury returned a verdict in favor of Dyess, assessing damages of $400,000, and in favor of Susie Dyess, assessing damages of $100,000. Judgment was entered in accordance with those verdicts. Electric then filed a motion for j.n. o.v., alleging that it was entitled to a directed verdict due to Dyess's alleged contributory negligence, or in the alternative, a motion for new trial, alleging that the jury had disregarded the trial court's instruction on contributory negligence. Those motions were denied.
Electric argues that the trial judge erred by not granting its motion for a directed verdict or its motion for j.n.o.v., because, it says, Dyess was contributorily *246 negligent. Ordinarily, contributory negligence is a question for the jury. Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978). If the jury returns a verdict that implicitly rejects that affirmative defense, its finding on that issue will not be disturbed unless it is shown that the plaintiff was contributorily negligent as a matter of law. This Court specified what must be shown to support such a finding in Central Alabama Electric Coop. v. Tapley, 546 So. 2d 371 (Ala.1989):
Tapley, 546 So. 2d at 381. (Emphasis added.)
This case is unlike Campbell v. Alabama Power Co., [July 13, 1990] (Ala.1990); Watters v. Bucyrus-Erie Co., 537 So. 2d 24 (Ala.1989); and Wilson v. Alabama Power Co., 495 So. 2d 48 (Ala.1986). Campbell, while working on top of a house being moved along a city street, came into contact with electric power lines that he was attempting to raise over the house. Watters, a foreman on a crew working alongside a highway, had pointed out the danger of the power lines 30 minutes before and had looked at the lines only seconds before he pulled the crane into contact with the lines. Wilson, though he had been specifically warned of the danger posed by the line, climbed into the part of the tree where the line was in order to reach a bird's nest. Thus, in each of those cases, the plaintiff was specifically aware of the presence of the lines immediately before touching them, was aware of the danger posed thereby, and nevertheless conducted himself negligently so as to come into contact with the lines.
The evidence in this case supports the trial court's holding that Dyess did not have, as a matter of law, a conscious appreciation of the danger at the moment the incident occurred. Dyess, although generally aware of the danger posed by power lines, testified that he was not aware that the lines in question were closer than he expected them to be and was not specifically aware of their presence or their proximity just before he came into contact with them. His failure to measure the distance from the first utility pole to the right-of-way line, although revealed by hindsight to be an error in judgment, was not so unreasonable at the time in light of the prior course of dealing between Dyess and Electric and his finding that the individual poles were a proper distance apart. Although that failure can fairly be characterized as heedlessness, it does not rise to the level of contributory negligence as a matter of law.
Because there was evidence that Dyess was not aware of the proximity of the first pole to the power lines, the trial court did not err in declining to hold that at the time he was injured he necessarily had a conscious appreciation of the danger posed by Electric's failure to properly position the utility poles. Dyess presented evidence that, because he did not suspect the improper proximity of the power line, he was not looking at it as he raised the cherry picker and, thus, that he did not consciously appreciate the danger. Under the applicable law, the jury was entitled to find that he was not contributorily negligent. Therefore, the trial court did not err in declining to hold that Dyess was contributorily negligent as a matter of law, Tapley, supra. Deciding cases of this kind is not without difficulty, and their resolution "turns on the facts and circumstances unique to each case." Tapley, 546 So. 2d at 381.
*247 Electric also contends that the trial judge erred by denying its motion for a new trial that was based on its allegation that the jury disregarded the trial court's instruction on contributory negligence. The only evidence in support of that allegation was an affidavit by a juror that said, in essence, that the jury employed comparative negligence concepts. The trial judge overruled that motion based on this Court's opinion in Alabama Power Co. v. Brooks, 479 So. 2d 1169 (Ala.1985). In that opinion this Court restated the settled rule that testimony or affidavits of jurors are generally not admissible to impeach their verdicts. Brooks, 479 So. 2d at 1178. The purpose of this rule is to protect the jury from improper influences and to allow its deliberations to be conducted without interference. Clay v. City of Montgomery, 102 Ala. 297, 14 So. 646 (1893).
After reviewing the record, this Court finds no error that warrants reversal. Therefore, the judgment of the trial court is affirmed.
AFFIRMED.
MADDOX, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
HORNSBY, C.J., and JONES and SHORES, JJ., concur in the result. | July 13, 1990 |
f2ea2ab1-3719-473c-a635-13d625d36261 | Chamlee v. Johnson-Rast and Hays | 579 So. 2d 580 | N/A | Alabama | Alabama Supreme Court | 579 So. 2d 580 (1990)
W. Brent CHAMLEE and Patricia Chamlee
v.
JOHNSON-RAST AND HAYS, a corporation, and Lewis Gwaltney.
88-1468.
Supreme Court of Alabama.
July 20, 1990.
Rehearing Denied April 19, 1991.
Gary D. Hooper of Thompson, Griffis & Hooper, Birmingham, for appellants.
W. Lewis Garrison, Jr. of Corley, Moncus & Ward, Birmingham, for appellees.
ADAMS, Justice.
This is an appeal from a judgment for the defendants, Johnson-Rast and Hays, and Lewis "Hap" Gwaltney, in a case involving the construction and sale of a new house. The trial court, at the conclusion of *581 the plaintiffs' case, directed a verdict in favor of Johnson-Rast and Hays and Gwaltney. On appeal, the plaintiffs, W. Brent Chamlee and Patricia Chamlee, raise issues concerning the propriety of the directed verdict and the exclusion of certain deposition testimony. We affirm.
In December 1986, the Chamlees contacted Diane Smith, an agent for Johnson-Rast and Hays, about a house they had noticed in a new subdivision. A sign in the yard indicated that Johnson-Rast and Hays was the listing agent for that house, which was located in the Cedar Cove subdivision.
After the Chamlees had looked at several houses without finding one that met their needs, Diane Smith suggested that she could arrange for a house to be built for the Chamlees in the Cedar Cove subdivision. Diane Smith stated that Franklin Properties, Inc., a corporation she had organized with her husband, Frank Smith, could build a house according to their specifications and needs.
The Chamlees presented Diane Smith with some construction plans. On March 7, 1987, the Chamlees and Franklin Properties entered into a contract. Franklin Properties agreed to construct a house for the Chamlees in conformity with plans and specifications made a part of the contract and to sell that house to the Chamlees.
The Chamlees, Frank Smith, Diane Smith, and an attorney were present at the closing on July 15, 1987. Frank Smith executed lien waivers stating that all bills for labor and materials had been paid. The Chamlees were provided with a builder's warranty by Franklin Properties, and Franklin Properties was presented with a mortgagee's title policy.
After the closing, the Chamlees began to notice several material defects with the construction of the house. The Chamlees were then contacted by several subcontractors in connection with their unpaid bills.
On November 25, 1987, the Chamlees sued Franklin Properties, Frank Smith, Diane Smith, and some fictitious defendants, alleging poor workmanship, breach of warranty, failure to pay the subcontractors, and breach of contract. On March 16, 1988, the Chamlees amended their complaint and substituted Johnson-Rast and Hays and Gwaltney for the fictitious defendants, alleging against them poor workmanship and failure to pay the subcontractors. The particular theories against Johnson-Rast and Hays and Gwaltney were premised upon the doctrine of respondeat superior. Gwaltney was made a defendant because he was the qualifying broker at the Johnson-Rast and Hays branch office where Diane Smith worked.
The case was tried before a jury. The court entered a default judgment against Franklin Properties, Frank Smith, and Diane Smith in the amount of $140,723.77 when Frank and Diane Smith failed to appear at the trial.[1] At the conclusion of the plaintiffs' case, the trial court granted Johnson-Rast and Hays and Gwaltney's motion for directed verdict.
The Chamlees' first argument is that the trial court erred in directing the verdict for Johnson-Rast and Hays and Gwaltney. The Chamlees contend that they presented substantial evidence that these defendants were liable under the theory of respondeat superior for the faulty construction of their house and for the alleged fraudulent misrepresentation regarding the unpaid subcontractor liens.
The Chamlees filed their action after June 11, 1987; therefore, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12. Under that standard, a verdict is properly directed for the defendant if the plaintiff has failed to present substantial evidence as to each element of the cause of action. Substantial evidence is "evidence of such quality and weight that reasonable and *582 fairminded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven." § 12-21-12. See Watters v. Lawrence County, 551 So. 2d 1011 (Ala.1989).
The Chamlees argue that Johnson-Rast and Hays and Gwaltney participated in the construction of the house through the acts of their agent, Diane Smith. Johnson-Rast and Hays and Gwaltney argue that the Chamlees failed to offer any evidence that Johnson-Rast and Hays and Gwaltney, through the actions of Diane Smith, were responsible for the defects in the construction of their house. Johnson-Rast and Hays and Gwaltney argue that they did not participate in the construction of the house, did not warrant any work, and did not hire any of the subcontractors.
The Chamlees also contend that they presented substantial evidence that these defendants were liable under the theory of respondeat superior for the alleged fraudulent misrepresentation regarding the unpaid subcontractor liens. In particular, the Chamlees claim that at the closing Diane Smith allowed her husband to execute the lien waiver affidavits knowing that approximately $18,000 in subcontractors' bills remained unpaid and that she failed to disclose to them the existence of the unpaid bills.
After closing, the Chamlees began to receive telephone calls from various subcontractors regarding their unpaid bills. The Chamlees were eventually sued by the subcontractors, Stephens Wholesale Supply Company and Closet & Shelving Company, to perfect mechanics' liens. The Chamlees were named as defendants, along with Franklin Properties and others. After being served, Mr. Chamlee retained an attorney to represent him and his wife.
However, the evidence reveals that Mr. Chamlee was not aware that there was a mortgagee's policy or apparently thought that the policy did not cover the liens. In any event, the lien suits were dismissed with prejudice and the Chamlees were not required to pay any money to satisfy the liens.
To recover against a defendant under the theory of respondeat superior, it is necessary for the plaintiff to establish the status of employer and employeemaster and servantand to establish that the act was done within the scope of the employee's employment. Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So. 2d 638 (1970). Thus, the determinative question becomes whether the act committed by the employee was done while acting within the line and scope of his employment. A determination that an employee was not acting within the scope of his employment would bar any recovery under the doctrine of respondeat superior.
It is a general rule that where an employee abandons his employer's business for personal reasons the employment is suspended and the employer is not liable for the negligence of the employee during the suspended employment and during the time of the employee's departure from the employer's business. Land v. Shaffer Trucking, Inc., 290 Ala. 243, 275 So. 2d 671 (1973); Engel v. Davis, 256 Ala. 661, 57 So. 2d 76 (1952). Moreover, it has been stated that the conduct of the employee, "to come within the rule [of respondeat superior], must not be impelled by motives that are wholly personal, or to gratify his own feelings or resentment, but should be in promotion of the business of his employment." Rochester-Hall Drug Co. v. Bowden, 218 Ala. 242, 243, 118 So. 674, 674 (1928).
Johnson-Rast and Hays and Gwaltney agree that Diane Smith was an agent for Johnson-Rast and Hays, but argue that this fact does not create a cause of action against them for the construction defects or unpaid subcontractor liens. They argue that Diane Smith was a 50% stockholder in Franklin Properties and they point to a provision in the contract between Franklin Properties and the Chamlees:
*583 The Chamlees' theories of liability are all premised on the proposition that Johnson-Rast and Hays and Gwaltney should be liable to them for the acts committed in the line and scope of the employment of their agent and employee, Diane Smith. However, the contract executed by the Chamlees clearly provided that Diane Smith was "acting as a principal for her own account."
Whether an employee was acting within the scope of his employment is generally an issue to be determined by the jury. However, where the facts are undisputed, and if a departure from the employer's business is shown to have been of a marked and decided character, as in this case, the question may be within the province of the court. Whitherspoon v. Goldome Credit Corp., 544 So. 2d 946 (Ala. 1989); 53 Am.Jur.2d, Master and Servant § 460 (1970). Under the facts of this case, it was undisputed that Diane Smith was acting as a principal for her own account, in accordance with the provision of the sales contract. Therefore, the trial court properly directed a verdict in favor of Johnson-Rast and Hays and Gwaltney.
The Chamlees also argue that the trial court erroneously excluded the deposition testimony of defendant Diane Smith, who failed to appear at trial. The Chamlees contend that the deposition of Diane Smith should have been read to the jury as an admission against interest because she admitted in her deposition that she knew at the time of closing that the subcontractors were unpaid.
The deposition of Diane Smith was taken on March 10, 1988, and on March 14, 1988. Johnson-Rast and Hays and Gwaltney were substituted for previously named fictitious defendants on March 16, 1988, after the taking of Diane Smith's deposition.
Rule 32, A.R.Civ.P., sets forth the procedure for use of depositions at trial. Rule 32(a) provides, in part:
Rule 32(a) clearly requires that for a deposition to be used at trial against a party, that party must have been: (1) present at the taking of the deposition; or (2) represented at the taking of the deposition; or (3) given reasonable notice of the deposition. Johnson-Rast and Hays and Gwaltney were not notified of the deposition, were not parties to the lawsuit at the time the deposition was taken, and were not otherwise represented at the deposition. Therefore, in accordance with Rule 32(a), A.R.Civ.P., the trial court properly refused to allow the introduction of the deposition of Diane Smith.
AFFIRMED.
MADDOX, JONES, ALMON, HOUSTON and STEAGALL, JJ., concur.
HORNSBY, C.J., dissents.
HORNSBY, Chief Justice (dissenting).
Alabama law recognizes that a finding of an agency relationship arising out of apparent authority must be based upon the conduct of the principal and not that of the agent in the transaction at issue. Gray v. Great American Reserve Insurance Co., 495 So. 2d 602 (Ala.1986); American Standard Credit, Inc. v. National Cement Co., 643 F.2d 248 (5th Cir.1981) (applying Alabama law); Automotive Acceptance Corp. v. Powell, 45 Ala.App. 596, 234 So. 2d 593 (1970). In addition to the manifestations of authority by the principal, the injured party must reasonably believe that the agent has authority to bind the principal. Wood v. Holiday Inns, Inc., 508 F.2d 167 (5th Cir. 1975).
In this case, there were numerous manifestations of authority on the part of Johnson-Rast and Hays indicating that Smith was acting as its authorized agent. Among other things, Smith carried a business *584 card that showed that she was employed by Johnson-Rast and Hays; the plaintiffs contacted the Johnson-Rast and Hays offices by telephone and were referred to Smith; Smith maintained an office in the Johnson-Rast and Hays business offices; and Smith had her own set of keys to the Johnson-Rast and Hays offices. At their first meeting, Smith presented the plaintiffs with a Johnson-Rast and Hays business card with her name printed on it. Smith showed the plaintiffs numerous properties listed by Johnson-Rast and Hays and told the plaintiffs that she could arrange to have a house built for them in the Cedar Cove subdivision. Smith met with the plaintiffs at the Johnson-Rast and Hays offices to discuss building plans. The plaintiffs had previously read in Homes Illustrated that Johnson-Rast and Hays was the listing broker for the Cedar Cove subdivision. The contract which was executed by Smith and the plaintiffs was a form contract that had a Johnson-Rast and Hays logo at the top of the first page. Moreover, Johnson-Rast and Hays accepted the plaintiffs' payment of $500.00 as earnest money on the transaction involving Smith and the plaintiffs. These manifestations of authority by Johnson-Rast and Hays could lead a person to reasonably believe that Smith was their authorized agent.
In Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 304 (Ala.1986), this court stated:
I would hold that the evidence in this case presented a jury question on whether the plaintiffs reasonably believed that Smith was Johnson-Rast and Hays's authorized agent. Whether one is the agent of another is a question of fact. Hatton v. Chem-Haulers, Inc., 393 So. 2d 950 (Ala. 1980); Cashion v. Ahmadi, 345 So. 2d 268 (Ala.1977). Questions of apparent authority are generally questions of fact that are properly submitted to a jury for its consideration. Wood, supra, at 176 (citing System Investment Corp. v. Montview Acceptance Corp., 355 F.2d 463 (10th Cir. 1966), and other cases).
Additionally, I agree with the contention of the plaintiffs that they should have been allowed to put their case before the jury under the theory of respondeat superior. In an earlier case concerning the commission of fraud by an agent, this Court stated:
Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 305 (Ala.1986) (citations omitted).
From the facts set out above, I believe that a jury could reasonably conclude that Smith was acting within the line and scope of her employment with Johnson-Rast and Hays when the fraudulent acts in this case were committed.
In light of the foregoing, I must respectfully dissent.
[1] Frank Smith, Diane Smith, and Franklin Properties were represented by counsel after being served with the complaint. However, their counsel withdrew because of their failure to pay their litigation costs. Frank Smith, Diane Smith, and Franklin Properties did not obtain new counsel. | July 20, 1990 |
59a9c5cf-24cc-49cd-8ced-32d4eb624979 | Ex Parte Jackson | 567 So. 2d 867 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 867 (1990)
Ex parte Gerald M. JACKSON.
(Re Gerald M. JACKSON v. Venita Jean JACKSON).
89-1039.
Supreme Court of Alabama.
September 7, 1990.
W. Gregory Hughes, Mobile, for petitioner.
Thomas M. Galloway of Collins, Galloway & Smith, Mobile, for respondent.
KENNEDY, Justice.
This is a divorce case.
The parties were married in February 1971. They had three children during the marriage: Brian, age 17; Deana, age 12; and Derek, age 10.
*868 The husband, Gerald M. Jackson, filed for divorce in February 1989. After ore tenus proceedings, the trial court issued a judgment of divorce in August 1989. The wife, Venita L. Jackson, was awarded custody of the children, with visitation rights granted to the husband. The wife was given possession of the family residence and was held responsible for the mortgage payments on the residence. The residence was to be sold when the youngest child reached the age of majority, and the equity was to be divided equally between the parties. The husband was ordered to pay the wife $100 per week as alimony and $75 per week per child as child support until each child reached majority. The husband was required to pay all the debts of the marriage except the payment on the wife's automobile.
The husband appealed to the Court of Civil Appeals, 567 So. 2d 866, which affirmed and subsequently denied rehearing. This Court granted the petition for writ of certiorari. We affirm.
The husband contends that the trial court erred in its award of alimony and child support by failing to consider his earnings and earning capacity as balanced with the needs of the wife and children. The husband also submits that the trial court's allocation of the debts of the marriage constituted an abuse of discretion.
In reviewing the trial court's judgment in a divorce case presented ore tenus, we will presume the judgment to be correct until it is shown to be plainly and palpably wrong or unjust. Brannon v. Brannon, 477 So. 2d 445 (Ala.Civ.App. 1985); Nowell v. Nowell, 474 So. 2d 1128 (Ala.Civ.App.1985); Stricklin v. Stricklin, 456 So. 2d 809 (Ala.Civ.App.1984). The trial court is given broad discretion in a divorce case and its decision will not be overturned unless it is unsupported by the evidence or is otherwise palpably wrong. Stricklin, 456 So. 2d 809, 810. Issues involving alimony and the payment of marital debts are within the sound discretion of the trial judge in a divorce action. The judge's ruling on these matters will not be disturbed unless it is a plain and palpable abuse of discretion. McCluskey v. McCluskey, 495 So. 2d 66 (Ala.Civ.App.1986); Hall v. Hall, 445 So. 2d 304 (Ala.Civ.App.1984).
The husband contends that the trial judge did not consider his earnings and his ability to earn income when the judge ordered the child support and alimony. The husband's gross annual income is $38,000.[1] His net income per month is $2,097.00. He was ordered to pay $1,408.33 per month in support and alimony.[2] From the balance, the husband must pay for food, clothing, shelter, transportation, and other necessities.
The judge also considered the needs of the wife and children. The wife did not work during the 18-year marriage and only recently had been employed. The wife's net income is $151.89 per week. She must make a $327 per month mortgage payment and a $219 per month automobile payment.
The record clearly shows that the trial judge considered the earnings of the husband when he awarded child support and alimony. In view of the disparity in the earnings of the parties and the strong presumption in favor of the trial court's judgment in a divorce case, we cannot consider the award of alimony and child support to be palpably wrong or unjust. The trial judge can consider the earning ability of both parties, their probable future prospects for earnings, the duration of the marriage, their ages, health, and station in life, and the conduct of the parties with reference to the cause of the divorce. Farris v. Farris, 532 So. 2d 1041 (Ala.Civ.App.1988).
The debts the trial court imposed on the husband all were incurred during the *869 marriage. The record shows that the trial court considered the husband's income in charging those debts to the husband. The trial judge stated he could charge some of the indebtedness to the wife but that if he did so, he would have to increase the amount of support. The judge also considered in his ruling that as each child reached the age of majority, the amount of support would be reduced.
The trial court did not abuse its discretion in ordering the husband to pay the debts of the marriage.
The judgment of the Court of Civil Appeals is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] The husband made $47,600 in 1987 but at the time of trial had not filed a 1988 tax return. The judge estimated his gross annual pay by using the husband's check stubs for 1989.
[2] The amount of child support will be reduced by $324.75 per month as each child reaches majority. The oldest child reaches majority in March 1991. | September 7, 1990 |
c9a3dbcc-9856-4051-97c9-fb44f9f348c6 | Bell v. Colony Apartments Co., Ltd. | 568 So. 2d 805 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 805 (1990)
Amy BELL, et al.
v.
COLONY APARTMENTS COMPANY, LIMITED.
June C. BROWN and Pam Cook
v.
COLONY APARTMENTS COMPANY, LIMITED.
89-664, 89-665.
Supreme Court of Alabama.
September 21, 1990.
Charles H. Volz, Jr. of Volz and Volz, Montgomery, and Louis C. Colley of Cleveland and Colley, Prattville, for appellants.
David E. Allred and Jonathan H. Cooner of Hill, Hill, Carter, Franco, Cole and Black, Montgomery, for appellees.
*806 MADDOX, Justice.
These cases come to this Court on consolidated appeals, and involve the issue of whether the trial court erred in entering summary judgment in favor of the defendant in negligence and breach of lease actions filed against it by the plaintiffs. The claims grew out of a fire at an apartment complex in Montgomery where the plaintiffs lived.
On October 21, 1987, responding to a complaint made by plaintiff Julie Strickland, who was a tenant in Colony Apartments, Paul Pritchett and Marian Sheffield, two employees of the apartment complex, arrived at Strickland's apartment in order to repair her heating system. Although Ms. Sheffield accompanied Pritchett into Ms. Strickland's apartment, most of the actual repair work performed on the heating system was done by Pritchett. In an effort to repair the heating system, Pritchett had to work on a transformer relay and a fan motor located inside the apartment's furnace, as well as work on a thermostat located on the wall. Following Pritchett's repairs to the heating system, and soon after he and Ms. Sheffield left the apartment, a fire broke out in a crawl space located between the ceiling of Ms. Strickland's apartment and the floor of the apartment immediately above her. The fire was eventually extinguished by the fire department, but Ms. Strickland's apartment and other apartments nearby suffered damage.[1]
In their complaints, the tenants/plaintiffs asserted that Colony Apartments Company, Limited (hereinafter "Colony"), through its employee, Pritchett, negligently performed repairs on Ms. Strickland's heating system and thereby caused the fire that damaged their apartment units.[2] Furthermore, the plaintiffs asserted that Colony had breached its leases with them by failing to maintain the apartment complex and its equipment in a safe and working order, a duty that the plaintiffs claimed was breached by Colony when the fire broke out in the crawl space. In its motion for summary judgment, Colony asserted that there was no genuine issue of material fact as to the "proximate cause" of the apartment fire or as to a "breach" of the leases. Accompanying its motion, Colony submitted Pritchett's affidavit detailing his activities while he was inside Ms. Strickland's apartment. Colony also submitted selected excerpts from deposition testimony given by Ms. Sheffield; Lt. Brown and Capt. Maddox, arson investigators for the City of Montgomery Fire Department; Dallas Mitchell, an electrical inspector for the City of Montgomery; and Charles Kelly, a retained fire investigation expert for the plaintiffs. Colony asserted that Pritchett's affidavit, along with the accompanying deposition testimony, showed, as a matter of law, that there was not a genuine issue of material fact as to the proximate cause of the apartment fire or as to a breach of the leases. The plaintiffs asserted that the evidence before the trial court, although admittedly circumstantial in nature, provided substantial evidence as to each of the elements of their negligence and breach of lease counts against Colony. The trial court granted Colony's motion for summary judgment. After the trial court denied their motion to alter, amend, or vacate the judgment, the plaintiffs filed their notices of appeal.
The only issue in these appeals is whether summary judgment was proper for Colony. The plaintiffs contend that they presented "substantial evidence" as to each element of their negligence and breach of lease actions against Colony.[3]
*807 The applicable rule of review is found in Rule 56(c), A.R.Civ.P. Summary judgment is proper 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."
One of the elements that a plaintiff must establish in any negligence action, of course, is "proximate cause." A plaintiff must establish the existence of a nexus between the action of the defendant and the subsequent injury or damage sustained by the plaintiff. Where the plaintiff fails to show that the action of the defendant "proximately caused" his injury or damage, then an action for negligence cannot be sustained as a matter of law.
In West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989), this Court, construing Ala.Code 1975, § 12-21-12, stated that "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."
In Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 798 (Ala.1989), this Court noted:
In its motion for summary judgment, Colony asserted that the plaintiffs failed to provide "substantial evidence" that Pritchett's actions during his repair of Ms. Strickland's heating system "proximately caused" the fire that broke out in the crawl space. In support of that position, Colony presented deposition testimony from fire investigation experts who, it asserted, could only speculate as to the "proximate cause" of the fire that damaged the plaintiffs' apartments. In his deposition, Lt. Brown, an arson investigator with the City of Montgomery Fire Department, testified that the fire was "in the space, crawl space, between the ceiling of the first floor and floor of the second floor area," and that "[i]n [his] opinion, it was most likely electrical." He testified that he did not know "what actually started the fire ... [b]ut from all the indications we got and burn patterns that I could see, you know, my experience is that it started as electrical in that area [i.e. the crawl space]." He testified that, in his opinion, the fire was "accidental," that is, that it was not arson. When questioned specifically concerning the cause of the fire, he testified:
*808 Lt. Brown testified that he could not "definitely" say that Pritchett caused the fire, but he did say the following:
Capt. Maddox, the other arson investigator assigned to inspect the apartment fire, testified to the following in his deposition:
(Emphasis added.)
Marian Sheffield, who accompanied Mr. Pritchett into Ms. Strickland's apartment and aided him in the repair of the heating system, testified to the following in her deposition:
Dallas Mitchell, an electrical inspector for the City of Montgomery who also investigated the apartment fire, testified to the following in his deposition:
Charles Kelly, the plaintiffs' fire investigation expert, testified to the following in his deposition:
The trial court, in its order granting Colony's motion for summary judgment, stated that "the plaintiffs [had] failed to introduce substantial evidence" that Colony had "proximately caused" the fire that damaged the plaintiffs' apartments.[5]
As a general rule, "summary judgment is rarely appropriate in negligence actions, which almost always present factual issues of causation and of the standard of care that should have been exercised. Tolbert v. Gulsby, 333 So. 2d 129 (Ala.1976)." Yarborough v. Springhill Memorial Hospital, 545 So. 2d 32, 34 (Ala.1989). Of course, if there had been no evidence presented concerning the origin of the fire, the probable cause of the fire, and the other circumstances surrounding the fire, then summary judgment might have been appropriate. *810 This Court, in Hollis v. Brock, 547 So. 2d 872 (Ala.1989), upheld a summary judgment in a case in which the plaintiffs claimed that the defendants had been negligent in allowing a fire to break out. In that case, however, this Court noted the following:
547 So. 2d at 873.
Although this Court stated in Brown Mech. Contractors, Inc. v. Centennial Ins. Co., 431 So. 2d 932, 942 (Ala.1983), that "[t]he mere possibility that a careless act caused damage is not itself sufficient to find proximate cause," and, moreover, stated in Bogle v. Scheer, 512 So. 2d 1336, 1340 (Ala.1987), that "[s]peculation and conclusory allegations are insufficient to create a genuine issue for trial," we conclude that those principles of law do not support the summary judgment in the present cases.
In these cases, the plaintiffs produced evidence that the fire was of an electrical origin, that it originated in the place, or in an area immediately adjacent to the place, where the defendant's employee had been making electrical repairs within 30 minutes of the discovery of the fire.
Although the plaintiffs' experts testified that they could not definitely state that the defendant's employee caused the fire, a definite statement of that nature is not necessary to defeat a motion for summary judgment. Findings of facts cannot be based upon mere conjecture, of course,[6] but it is also clear that direct evidence is not necessary to prove negligence on the part of a defendant and that proof of negligence may be established completely through circumstantial evidence. Green v. Reynolds Metals Co., 328 F.2d 372 (5th Cir.1964); Elba Wood Products, Inc. v. Brackin, 356 So. 2d 119 (Ala.1978); Harbin v. Moore, 234 Ala. 266, 175 So. 264 (1937); Southern Ry. v. Dickson, 211 Ala. 481, 100 So. 665 (1924). This Court has recognized that although the evidence may present no direct proof of negligence by the defendant, negligence does not require direct proof but may be inferred by a jury from the circumstances out of which the injury arose. Mobile Press Register, Inc. v. Padgett, 285 Ala. 463, 233 So. 2d 472 (1970). A fact is established by circumstantial evidence *811 if it can be reasonably inferred from the facts and circumstances adduced. May v. Moore, 424 So. 2d 596 (Ala.1982); State v. Ludlum, 384 So. 2d 1089 (Ala.Civ.App. 1980).
After a thorough review of the record, we conclude that the learned trial judge erred in entering the summary judgment for Colony as to the negligence claim.
The plaintiffs' breach of lease actions are contingent upon a finding that Pritchett's repair of Ms. Strickland's heating system proximately caused the fire;[7] consequently, our determination that the trial court erred in entering the summary judgment as to the negligence claims leads us to the conclusion that the trial court erred in entering Colony's summary judgment as to the breach of lease claims as well.
The judgment of the trial court is due to be reversed and the causes remanded for further proceedings consistent with this opinion.
89-664REVERSED AND REMANDED.
89-665REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] The other tenants/plaintiffs whose apartments were damaged as a result of the fire were Amy Bell, Belinda Payne, June C. Brown, and Pam Cook.
[2] Two separate complaints were filed by the tenants against Colony Apartments. The trial court consolidated the two cases for trial pursuant to Rule 42(a), A.R.Civ.P.
[3] Because this lawsuit was filed after June 11, 1987, the "substantial evidence rule" applies. See Ala.Code 1975, § 12-21-12 (1989 Supp.).
[4] An "electrician's snake" is a device consisting of a stiff cable that is passed through an otherwise inaccessible area, and which attaches to wires located in that inaccessible area. Once the snake is attached to those wires, it is then pulled by its holder so that the once-inaccessible wires can be retrieved by the holder. In his affidavit offered into evidence, Mr. Pritchett denied using an electrician's snake on the day that he repaired Ms. Strickland's heating system. Furthermore, Mr. Pritchett stated that he never "pulled, pushed, installed, cut, spliced or in any way" came into contact with any wiring located in the crawl space where the fire apparently began.
[5] Despite the plaintiffs' assertion that the trial court's summary judgment failed to adjudicate their breach of lease claim against Colony, this Court concludes that the trial court's order was written broadly enough to amount to an entry of summary judgment for Colony on that count.
[6] This Court has written:
"`Proof which goes no further than to show an injury could have occurred in an alleged way, does not warrant the conclusion that it did so occur, where from the same proof the injury can with equal probability be attributed to some other cause.'
"But a nice discrimination must be exercised in the application of this principle. As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence."
Southern Ry. v. Dickson, 211 Ala. 481, 486, 100 So. 665, 669 (1924). (Quoting Southworth, Adm'x v. Shea, 131 Ala. 419, 30 So. 774 (1901).)
[7] The leases had a provision that stated: "The landlord agrees to ... maintain all equipment and appliances in safe and working order." | September 21, 1990 |
ab695918-48fb-40cf-a80e-7f40baff98eb | Strickland v. Markos | 566 So. 2d 229 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 229 (1990)
Franklin Felix STRICKLAND, et al.
v.
Demetrios C. MARKOS and Betty Markos.
88-1484.
Supreme Court of Alabama.
July 13, 1990.
Keith A. Howard of Howard, Dunn, Howard & Howard, Wetumpka, for appellants.
Steven F. Schmitt and Clay Hornsby, Tallassee, for appellees.
JONES, Justice.
This is an appeal from a judgment entered in a boundary line dispute between coterminous landowners. The plaintiffs/appellees, Demetrios and Betty Markos, as husband and wife, own and operate a restaurant and lounge on Highway 231 in Wetumpka, Alabama. The defendants/appellants, *230 Franklin Felix Strickland and others, own property adjacent to that of the Markoses. The Markoses filed suit against Strickland and the other defendants, alleging ownership of the driveway and parking lot of the restaurant by adverse possession.
After an ore tenus hearing and a personal inspection of the disputed property, the trial judge entered judgment for the plaintiffs consistent with their claim of adverse possession. From that judgment, the defendants appeal.
The disputed property (parcel one) and an undisputed property (parcel two) were originally owned by Maggie DeBardelaben as one tract. This tract was sold to J.D. and Minnie Sims in 1953 as one lot consisting of 1.20 acres. In 1956, the Simses divided the tract into two lots, selling parcel two to J.W. Adair, while retaining parcel one. Subsequently, parcel two was sold to two different purchasers prior to George and Jessie Poston's purchase of parcel two on June 13, 1967. On June 27, 1967, J.D. Sims sold property to Wilfred and Frank Strickland. It is contended by the Stricklands that parcel one was included in that conveyance. On October 2, 1968, Demetrios and Betty Markos leased, with an option to purchase, parcel two from the Postons. On April 14, 1972, the Markoses exercised their option to purchase parcel two. On June 24, 1977, the Markoses conveyed their interest in parcel two to Billy and Maureen Candle. In exchange therefor, the Candles executed a second mortgage in favor of the Markoses. On August 22, 1978, the Markoses foreclosed on the Candleses' property and thereby regained possession of parcel two.
The trial court's findings of fact and its reasons given for the judgment read as follows:
As previously stated, this was a nonjury case. This Court has written a plethora of opinions setting out the standard of review in such cases: When evidence is presented ore tenus, the trial court's findings of fact will not be disturbed on appeal unless they are unsupported by credible evidence or are manifestly unjust. Nelson v. Styron, 524 So. 2d 353 (Ala. 1988). The presumption of correctness accorded judgments in such cases is strengthened when the trial judge has viewed the property in dispute. Jones *232 v. Henderson, 535 So. 2d 90 (Ala.1988). Moreover, this presumption of correctness is even stronger in adverse possession cases, because in such cases the evidence is generally difficult to weigh from the appellate court's vantage point. Seidler v. Phillips, 496 So. 2d 714 (Ala. 1986).
Essentially there are two forms of adverse possession in Alabama; 1) adverse possession by prescription; and 2) statutory adverse possession. Adverse possession by prescription requires actual, exclusive, open, notorious, and hostile possession under a claim of right for a 20-year period. Fitts v. Alexander, 277 Ala. 372, 170 So. 2d 808 (1965).
Daugherty v. Miller, 549 So. 2d 65, 66-67 (Ala. 1989).
With respect to statutory adverse possession, this Court in Brown v. Alabama Great Southern R.R., 544 So. 2d 926, 931 (Ala.1989), stated:
See, also, McCollum v. Reaves, 547 So. 2d 433, 435-36 (Ala.1989), special concurrence by Jones, J., wherein the author stated that "[t]he statutory procedure for determining disputed boundaries between coterminous owners is found in [Code 1975,] § 35-3-1 et seq.; and the applicable period of limitations is found in the general statute of limitations on actions, [Code 1975] § 6-2-33(2)." It should be emphasized that the claimant has the burden of proving that all of the requisites of statutory adverse possession have been satisfied for a ten-year period. Lilly v. Palmer, 495 So. 2d 522 (Ala. 1986).
Open and notorious possession are essential elements of adverse possession, because the landowner is thereby afforded notice of the adverse claim against his land. Thus, to satisfy these two elements, the claimant must provide evidence tending to show that his acts of dominion and control over the property were of such character and distinction as would reasonably notify the landowner that an adverse claim is being asserted against his land. Sparks v. Byrd, 562 So. 2d 211 (Ala.1990). In this regard, the evidence in the record tends to show that the plaintiffs and their predecessors in title did, in fact, openly and notoriously possess parcel one so as to place the landowner on notice of the adverse claims to the disputed property. See *233 Jake Strickland's deposition testimony, infra.
Another essential element of adverse possession relates to the claimant's intent to assert dominion and control over the disputed property. Reynolds v. Rutland, 365 So. 2d 656 (Ala. 1978). The Reynolds court emphasized, however, that although "intent to claim the disputed strip is required, there is no requirement that the intent be to claim property of another, as such a rule would make adverse possession dependent upon bad faith. Possession is hostile when the possessor holds and claims property as his own, whether by mistake or willfully. Smith v. Brown, [282 Ala. 528, 213 So. 2d 374 (1968)]." Id. at 657-58. In this regard, the record contains ample evidence to allow the trial court to conclude that the Markoses' use of the disputed property was hostile. See Jake Strickland's deposition testimony, infra.
To satisfy the element of continuous possession, the claimant must prove uninterrupted possession for 10 or more years. Prestwood v. Gilbreath, 293 Ala. 379, 304 So. 2d 175 (1974). Within the context of continuous possession lies the doctrine of "tacking." That doctrine allows an adverse possessor to addor "tack"his time of possession onto that of a previous adverse possessor in order to reach the required statutory period. Sparks v. Byrd, supra. Before tacking is allowed, however, it must be proved that there exists a sufficient nexus, often called "privity," between the successive adverse claimants. Id.
The appellants insist that the trial court erred in applying the doctrine of tacking. Specifically, the appellants argue that the Markoses should not be allowed to tack the period of their possession onto that of their predecessors, Billy and Maureen Candles.
To resolve this particular issue, we must ascertain whether there exists privity of possession between a mortgagor and a mortgagee. So far as we can determine, this question is one of first impression in Alabama. The term "privity" is defined in Black's Law Dictionary (5th ed.1979), as a "[m]utual or successive relationship to the same rights of property." Ballentine's Law Dictionary (3d ed. 1969), defines "privity of possession as [a] continuity of actual possession, as between prior and present occupant, the possession of the latter succeeding the possession of the former under deed, grant, or other transfer, or by operation of law." Specifically relating to the question whether a mortgagee can tack on the possession of the mortgagor, 2 C.J.S. Adverse Possession § 156 at 874 (1972) states the principle that "the possession of the mortgagor may be tacked to that of the mortgagee who acquires the land by foreclosure and that of his successors." (Emphasis added.) See also 7 R. Powell, Powell On Real Property, § 1014[2] (1987); 3 Am.Jur.2d Adverse Possession § 105 at 199 (1986).
In light of the foregoing discussion, we hold that the Markoses, as the mortgagees, can tack their possession onto that of their predecessors, the Candles, as the mortgagors. Thus, the Markoses have also satisfied the burden of proving continuous possession. See Jake Strickland's deposition testimony, infra.
Jake Strickland's deposition testimony, which was offered into evidence, reads, in part, as follows:
To satisfy the final element of adverse possession, a claimant "must assert possessory rights distinct from those of others. The rule is generally stated that "`[t]wo persons cannot hold the same property adversely to each other at the same time."` Beason v. Bowlin, 274 Ala. 450, 454, 149 So. 2d 283, 286 (1962), quoting Stiff v. Cobb, 126 Ala. 381, 386, 28 So. 402, 404 (1899). Exclusivity of possession `is generally demonstrated by acts that comport with ownership.' Brown v. Alabama Great Southern R.R., 544 So. 2d 926, 931 (Ala.1989). These are `acts as would ordinarily be performed by the true owner in appropriating the land or its avails to his own use, and in preventing others from the use of it as far as reasonably practicable.' Goodson v. Brothers, 111 Ala. 589, 596, 20 So. 443, 445 (1896)." Sparks v. Byrd, supra, at 215.
The definition of "exclusive possession," as found in 2 C.J.S. Adverse Possession § 54 at 726-27, reads as follows:
The same principle is stated in different language in 4 H. Tiffany, The Law of Real Property, § 1141 at 735-36 (3d ed.1975):
With respect to the element of exclusivity, there was a considerable amount of contradictory evidence. Jake Strickland and others testified that the Stricklands had used the property to store various forms of equipment (a circus trailer, screw conveyors, trusses, etc.). There was also testimony that the Stricklands had given permission to a local civic club to use the disputed property for a turkey shoot. The Stricklands also place great emphasis on Betty Markos's testimony at trial. On cross-examination, she conceded that she had seen Jake Strickland on the disputed property approximately 100 times since 1978. She also admitted to having seen Wilfred Strickland on the disputed property approximately 25 times since 1978. She further admitted to having seen other members of the Strickland family on the disputed property various times since 1978.
*236 A review of Betty Markos's testimony reveals, however, that she was merely referring to an egress-ingress situation. On redirect examination, Betty Markos was asked the following question: "But the Stricklands' use of parcel one, has it ever been for anything other than egress or ingress?" Betty Markos responded by saying "No, sir." Furthermore, the Markoses produced numerous witnesses who testified that they had never seen the Stricklands' equipment on the disputed property. The Markoses also produced witnesses who testified that the disputed property had been exclusively used for a driveway and parking lot for the Wetumpka restaurant.
Therefore, we find credible evidence of record from which the trial court could have found that the Markoses exercised exclusive possession over the disputed property.
A review of the record reveals evidence to allow the trial judge to conclude that the Markoses have proven all the elements of statutory adverse possession. This Court will not weigh the evidence and set aside a judgment merely because the trial judge could have drawn different inferences or conclusions or because another result is more desirable.
As this Court explained in Southern Rock Products Co. v. Board of Zoning Adjustment of City of Trussville, 282 Ala. 186, 190, 210 So. 2d 419, 422 (1968):
Accordingly, the judgment is due to be affirmed.
AFFIRMED.
MADDOX, SHORES, HOUSTON and KENNEDY, JJ., concur. | July 13, 1990 |
2568e42f-b771-491f-86f1-d993bd9b312d | Hines v. Hardy | 567 So. 2d 1283 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1283 (1990)
Mary J. HINES
v.
Clifford W. HARDY, Jr., and Maelynn Hardy.
89-1214.
Supreme Court of Alabama.
August 31, 1990.
Candice J. Shockley of Holliman, Shockley, Kelly & Acker, Bessemer, for appellant.
Stephen A. Rowe and J. Franklin Ozment of Lange, Simpson, Robinson & Somerville, Birmingham, for appellees.
STEAGALL, Justice.
Plaintiff Mary J. Hines, who was a housekeeper for defendants Clifford and Maelynn Hardy, slipped on a crosstie on the Hardys' property and fell, injuring herself. She sued the Hardys, alleging negligence and wanton conduct, and the trial court entered summary judgment for the Hardys on both claims.
Hines had worked for the Hardys two days a week for the past 14 years, performing such services as cleaning, ironing, tending to the children, and running errands. On the day of her fall, Hines parked her automobile in front of the Hardys' house around 8:30 a.m. and walked up the driveway. Sometime later that morning she decided to leave to make her car payment. She used the front door and walked across the yard, rather than down the driveway, and discovered that her car would not start. Upon returning to the house to call her husband for a ride, Hines stepped onto the crosstie, slipped, and fell backward onto the ground.
We hold initially that Hines was an invitee, as opposed to a licensee, on the Hardys' premises, by virtue of her presence there to perform a helpful or necessary service for which she had contracted.[1]*1284 See Raney v. Roger Down Ins. Agency, 525 So. 2d 1384 (Ala.1988). The Hardys, therefore, had a duty to warn Hines of hidden dangers of which they knew or ought to have known. Quillen v. Quillen, 388 So. 2d 985 (Ala.1980). However, "as a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger which was known to the invitee or should have been observed by the invitee in the exercise of reasonable care." 388 So. 2d at 989.
In a recent case, Terry v. Life Ins. Co. of Georgia, 551 So. 2d 385, 386 (Ala.1989), this Court discussed the definitions of "known" and "obvious" dangers:
With regard to her knowledge of the crosstie, Hines stated in her deposition as follows:
Hines argues that, even though she knew the crosstie was there, she did not know that it was slippery or appreciate that a dangerous condition existed. This Court rejected an identical argument by the plaintiff in Langley v. Bob's Chevron, 554 So. 2d 1024 (Ala.1989). Felix Langley, a patron at Bob's Chevron, slipped and fell on gasoline that had spewed out of the nozzle he was using and onto the ground. He claimed that the gasoline constituted a hidden danger because, he said, he did not know the slippery nature of gasoline.
We rejected that argument, stating, "It is obvious that Langley was aware of the gasoline on the ground and tried to avoid it while filling his tank. The slippery nature of gasoline spilled upon a concrete surface was not a hidden danger. Under these facts, the evidence shows, as a matter of law, that Langley had notice of the dangerous condition. Bob's Chevron had no duty to warn." 554 So. 2d at 1025.
Here, it is clear that Hines knew about the crosstie and that its surface was wet due to the rain that day. As in Langley v. Bob's Chevron, we find that the evidence shows, as a matter of law, that Hines had notice of the slippery condition of the crosstie. Cf. Williams v. Newton, 526 So. 2d 18 (Ala.1988) (question of fact as to whether plaintiff had actual notice of ice at entrance to business).
This proposition is strengthened further by the fact that Hines's husband had put down the crosstie and the fact that Hines had worked for the Hardys for 14 years and was, thus, familiar with the surroundings and the property. See, e.g., Knight v. Seale, 530 So. 2d 821 (Ala.1988) (neighbor helping landowner repair hole in roof knew of presence of hole because he had previously worked on the roof; thus, landowner had no duty to warn).
The summary judgment for the Hardys is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and SHORES, JJ., concur.
[1] On appeal, the Hardys argue that Hines was a licensee when she fell because, by returning to the house for personal reasons, she had abandoned her original purpose for being at their house. They cite Standard Oil Co. of Ind., Inc. v. Scoville, 132 Ind.App. 521, 175 N.E.2d 711 (1961), in which an invitee lost that status and became a licensee upon returning to a business to discuss a personal problem. We decline to apply such a hypertechnical construction. It is obvious that, but for the Hardys' invitation to Hines to perform services for them, she would not have been on their property that day. | August 31, 1990 |
8043bc90-f697-42b2-814f-46fbe28fbb66 | Money Back, Inc. v. Gray | 569 So. 2d 325 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 325 (1990)
MONEY BACK, INC.
v.
Charles GRAY, d/b/a Hilltop Chevron Tire & Service Center.
88-1447.
Supreme Court of Alabama.
July 27, 1990.
Rehearing Denied September 21, 1990.
Frank B. Potts and Robert W. Beasley of Potts & Young, Florence, for appellant.
John E. Higginbotham and Thomas W. McCutcheon, Florence, for appellee.
PER CURIAM.
This Court's opinion of February 9, 1990, is withdrawn and the following opinion is substituted therefor:
This is an appeal from a judgment in a case involving alleged violations of Ala. Code 1975, § 8-22-1 et seq., the Alabama Motor Fuel Marketing Act ("AMFMA"). The case was tried by the trial judge without a jury.
The plaintiff, Charles Gray, owns Hilltop Chevron, a full-service and self-service gasoline station and automotive service facility in Florence. At the time of the events giving rise to this lawsuit (October 1986), Gray's business had been located at 419 South Court Street in Florence for nine years. The defendant corporation, Money Back, Inc., owns and operates self-service gasoline stations/convenience stores. The defendant opened one of its stores across the street from the plaintiff's service station in April 1986, and opened another store approximately two miles away in October 1986.
Also in October 1986, both the plaintiff and the defendant priced their leaded gasoline illegally and they do not dispute that they were selling the gasoline at a price lower than any other competitors. It was at this time that the "price war" began among the defendant and other gasoline dealers similarly situated, but it is also undisputed that the defendant offered gas for sale at this time at a price lower than any other station in Lauderdale County.
Because of a serious decline in his business, the plaintiff sued the defendant, asking for an injunction against the pricing activities of the defendant and for compensatory damages, as provided for in the *326 AMFMA. After hearing ore tenus evidence, the trial court entered the following judgment:
The defendant first contends that it was error to deny its motion for summary judgment because of what the defendant claims were fatal deficiencies in the plaintiff's opposition to the motion. The record shows, however, that the plaintiff correctly stated, in his responsive pleading, that his opposition to the motion for summary judgment was based on the "pleadings, affidavit of Charles Gray, the answers to interrogatories, and the deposition of Cecil Henley [defendant's witness]." See Swendsen v. Gross, 530 So. 2d 764 (Ala.1988); Tyler v. Equitable Life Assur. Soc. of the United States, 512 So. 2d 55 (Ala.1987); and Rule 56, A.R.Civ.P. Further, the evidence adduced by the pleadings of both parties during the consideration of the defendant's motion for summary judgment, the plaintiff's opposition thereto, and the plaintiff's own motion for summary judgment, created a triable issue of fact that the trial court ultimately resolved in favor of the plaintiff.
The case of State ex rel. Galanos v. Mapco Petroleum, Inc., 519 So. 2d 1275 (Ala.1987), controls the disposition of the remaining substantive issues raised by the defendant. In that case, this Court rejected the contention now advanced by the defendant, Money Back: that a plaintiff suing under the AMFMA must prove injurious intent on the part of the defendant seller in order to prove a prima facie case under the statute.
The Mapco Court interpreted the legislatively stated purpose of the act in pari materia with the substantive provisions of the act and held that "ordinary injury to competitors that results from successful efforts to draw customers to one's own *327 business" is not the result of innocent intent. Therefore, held the Court:
519 So. 2d at 1286. (Emphasis added.)
The trial court here affirmatively held that the plaintiff had suffered injury to his business and that the defendant had not proved the absence of injurious intent toward the plaintiff. Our standard of review of a judgment entered after an ore tenus hearing (see, e.g., Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351 (Ala.1988)), requires affirmance of the trial court's judgment in favor of the plaintiff in this case, especially in light of the Mapco Court's holding that the resolution of the AMFMA issues presented by this case is the responsibility of the trier of facthere, the trial court. 519 So. 2d at 1286.
The issue of damages was developed at trial through the testimony of three expert witnesses. The plaintiff's experts were Dr. Bruce Jones, an associate professor of economics, and Mr. Michael L. Johnson, a C.P.A. The defendant's expert was economist Dr. Michael Butler.
The defendant maintains that the plaintiff's experts' testimony was "speculative" and, therefore, unsupportive of the trial court's damages award. Gray counters by citing this Court's decision in Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987), in which we adopted the United States Supreme Court's "rule of damages that will control whenever a defendant's wrongful act has made it difficult to show `with reasonable certainty' the amount of [the plaintiff's] loss." That rule was set out by the United States Supreme Court in Story Parchment Co. v. Paterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (1931):
282 U.S. at 562-64, 51 S. Ct. at 250-51. See, also, Long-Lewis, Inc. v. Webster, 551 So. 2d 1025 (Ala.1989).
In his supplemental answers to Money Back's interrogatories, Gray stated that his actual damages for the three-month period in question (October, November, and December 1986) totalled $3,262. This figure was obtained by comparing Gray's financial statements for the same three months of 1985 and 1986. At trial, however, Gray's expert, Dr. Jones, testified that his analysis had revealed a consistent upward trend in Gray's business over an extended period of time. Because of Money Back's price-cutting, testified Dr. Jones, the upward trend in Gray's business did not continue during the last three months of 1986; therefore, he said, Gray's actual damages were $5,409. The trial court, pursuant to § 8-22-17(b), exercised its discretion and trebled the actual damages testified to by Dr. Jones and awarded Gray the amount of $16,227.[2]
We believe, under the circumstances of this case and in light of the testimony with regard to damages, that the "upward trend" testimony of Dr. Jones is too speculative to justify the larger actual damages figure of $5,409. We are left, then, with the actual losses testified to by Gray in his supplemental answers to interrogatories ($3,262), which figure, when trebled pursuant to § 8-22-17(b), yields a total of $9,786.
Therefore, our affirmance of the judgment appealed from is conditioned upon Gray's filing with this Court a remittitur of damages in the amount of $6,441 ($16,227 less $9,786) within 28 days from the date of this opinion. Otherwise, the judgment is reversed and the cause is remanded for a new trial.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; AFFIRMED CONDITIONALLY.
HORNSBY, C.J., and JONES, SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] That Code section provides:
"It is hereby declared that marketing of motor fuel in Alabama is affected with the public interest. It is hereby declared to be the legislative intent to encourage fair and honest competition, and to safeguard the public against creation of monopolies or unfair methods of competition, in transactions involving the sale of, or offer to sell, or inducement to sell motor fuel in the wholesale and retail sales in this state. It is further declared that the advertising, offering for sale, or sale of motor fuel below cost or at a cost lower than charged other persons in the same marketing level with the intent of injuring competitors or destroying or substantially lessening competition is an unfair and deceptive trade practice. The policy of the state is to promote the general welfare through the prohibition of such sales. The purpose of the Motor Fuel Marketing Act is to carry out that policy in the public interest, providing for exceptions under stated circumstances, providing for enforcement and providing penalties."
[2] After a post-judgment hearing, and in accordance with the parties' earlier stipulation, the trial court also awarded Gray "reasonable attorney fees in the amount of $8,000" and "court costs in the amount of $415.84." These amounts are not disputed on appeal. | July 27, 1990 |
ab0ddd99-b3bd-443a-9a03-4dd56e4fdaf1 | Ellingwood v. Stevens | 564 So. 2d 932 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 932 (1990)
Dr. Kenneth E. ELLINGWOOD
v.
Charles Richard STEVENS.
88-1085.
Supreme Court of Alabama.
June 29, 1990.
Wesley Pipes, Walter M. Cook, Jr. and William E. Shreve, Jr. of Lyons, Pipes & Cook, Mobile, for appellant.
Andrew T. Citrin of Cunningham, Bounds, Yance, Crowder, and Brown, Mobile, for appellee.
ALMON, Justice.
This is an appeal from a judgment rendered on a jury verdict awarding Charles R. Stevens $700,000 in his medical malpractice action against Dr. Kenneth E. Ellingwood, M.D.
In 1985 Stevens was scheduled for abdominal surgery. During preparations for that surgery, his doctor discovered a cancerous tumor at the base of his tongue. The tumor was surgically removed and Stevens *933 was advised to undergo radiation therapy to prevent any spread or recurrence of the cancer. Stevens was referred to the appellant, Dr. Kenneth E. Ellingwood, M.D., a radiation oncologist, for treatment. Dr. Ellingwood planned a course of radiation therapy that would last approximately six and one-half weeks. Under the plan, Stevens was to receive a total dosage of approximately 6600 rads of radiation, delivered to portions of his head and neck in increments of approximately 200 rads per day.[1]
He was to receive certain treatments by which he would be exposed to 4600 rads with his spinal cord unshielded. Those treatments, where Stevens's spinal cord was purposely in the field of radiation, were called "on cord" treatments. For the final portion he was to receive a total of 2000 rads, during which his spinal cord was to be shielded by a number of specially prepared blocks that were designed to prevent any radiation from reaching it. Those treatments were referred to as "off cord" treatments. That plan was implemented, and Stevens completed the course of radiation therapy under Dr. Ellingwood's care.
Approximately nine months after Stevens received his last treatment, he began to have problems with walking and coordination. His condition continued to deteriorate until he lost the use of both of his legs and his right arm. He retained partial use of his left arm.
Stevens filed a complaint against Dr. Ellingwood and another radiation oncologist who had been involved in his treatment.[2] His complaint alleged, inter alia, that Dr. Ellingwood had been negligent in administering the radiation treatments, allowing Stevens's spinal cord to be exposed to excessive radiation during the treatment sessions that were supposed to be "off cord." Stevens alleged that Dr. Ellingwood's negligence caused his quadriparesis.
Several expert witnesses testified at trial, including Dr. John T. Mallams, a radiation oncologist. Dr. Mallams's competency to testify as an expert on the medical issues was not challenged by Dr. Ellingwood. He testified that he was very familiar with the type of treatment that Dr. Ellingwood had administered to Stevens and with the standard of care that was required of radiation oncologists that performed that type of treatment. He testified that, in his professional opinion, the evidence that he had reviewed revealed that the blocks that were prepared to shield Stevens's spinal cord had not been properly positioned during his treatment. That evidence, which included a number of specially prepared X-rays that were taken during Stevens's treatment, revealed that his spinal cord had been in the field of radiation during the planned "off cord" treatments. Dr. Mallams further testified that the excessive exposure of Stevens's spinal cord was the result of a number of errors of omission and errors of commission in the placement of the blocks and in Dr. Ellingwood's apparent failure to verify that the blocks were in place and performing properly. He stated that those errors caused Stevens's spinal cord to receive in excess of 6000 rads of radiation, instead of the planned 4600 rads. He said that this excessive exposure was almost certainly the cause of the neurological deficit experienced by Stevens. Finally, Dr. Mallams stated that the treatment rendered to Stevens by Dr. Ellingwood fell below the standard of care required of physicians in his field "any place in the United States."
Additional testimony was received from Dr. Kenneth Steidley, a medical physicist. Dr. Steidley is not a physician. Portions of Dr. Steidley's testimony were objected to by Dr. Ellingwood. Dr. Steidley testified that he had an undergraduate degree in physics from Ohio University, and had received both a master's degree in radiation science and a doctorate in environmental *934 science with a specialty in radiation science from Rutgers University. He stated that he was certified by the American Board of Health Physics and the American Board of Radiology and had held the position of chief physicist at the St. Barnabas Medical Center in Livingston, New Jersey, since 1975. His duties at St. Barnabas included supervising other physicists in the department of radiation therapy who are responsible for ensuring that the radiation therapy plans prescribed by radiation oncologists are delivered correctly. Dr. Steidley testified that, in his opinion, 4000 rads is recognized as the maximum dose that the spinal cord should receive during radiation therapy. He also testified that his review of the X-rays taken during Stevens's treatment revealed that Stevens's spinal cord was in the field of radiation during treatment sessions that were supposed to have been "off cord."
Dr. Ellingwood contends that those answers constituted testimony as to the standard of care owed by radiation oncologists. This Court has held that testimony defining the standard of care owed by a physician, or a breach thereof, must be provided by an expert medical witness, unless the breach is so apparent as to be within the comprehension of the average layman. Timmerman v. Fitts, 514 So. 2d 907 (Ala.1987); Dobbs v. Smith, 514 So. 2d 871 (Ala.1987). Standard of care testimony is testimony concerning the degree of competency required of a professional, and it usually addresses whether the defendant in a particular case breached that standard. See S. Pegalis and H. Wachsman, American Law of Medical Malpractice § 11.4 (1981). Dr. Steidley's testimony concerned objective, scientific facts that were within his area of expertise and did not address the standard of care owed by a physician or other professional.
Dr. Ellingwood argues that the case of Bell v. Hart, 516 So. 2d 562 (Ala.1987), requires a reversal of the judgment against him. In Bell this Court upheld a summary judgment for the defendant doctor, holding that the trial court did not abuse its discretion in excluding the testimony of a psychologist and a pharmacist because they were not competent to testify as experts on the standard of care required of physicians in prescribing the drug Elavil.
In Bell, this Court concluded:
516 So. 2d at 570. Unlike the evidence in Bell, the standard-of-care evidence in this case was given by a qualified physician. Dr. Mallams, a radiation oncologist, is a medical doctor and is qualified in the same specialty as defendant Dr. Ellingwood.
Furthermore, unlike the excluded testimony in Bell, the evidence sought by the questions put to Dr. Steidley involved matters *935 of science, specifically, radiation biology. His responses were well within his area of expertise, and such expert testimony is sanctioned by the legislature:
Ala.Code 1975, § 12-21-160.
The question of whether a particular witness will be allowed to testify as an expert, and the scope of that expert testimony, are largely discretionary with the trial court, and that decision will not be disturbed on appeal without a showing of palpable abuse. Maslankowski v. Beam, 288 Ala. 254, 259 So. 2d 804 (1972). Because Dr. Steidley did not testify as to the standard of care owed by Dr. Ellingwood, and in light of his extensive education in the area of radiation science and years of experience in the field of medical physics, this Court finds no abuse of discretion by the trial judge in determining that Dr. Steidley was qualified to testify.
Dr. Ellingwood also objected to Dr. Steidley's opinion testimony concerning whether Stevens's spinal cord was in the field of radiation during the "off cord" treatments on the ground that such determinations were outside Dr. Steidley's area of expertise. Dr. Steidley's opinion was based on his review of a number of "port films" taken during Stevens's radiation treatments. Port films are special X-rays taken during the course of radiation therapy that show whether the patient's spinal cord is being properly shielded during the "off cord" treatments. The testimony that Dr. Ellingwood complains of is reproduced, in pertinent part, below:
(Emphasis added.)
During voir dire, Dr. Steidley conceded that in three of the four port films he *936 reviewed he could not make out the vertebral bodies containing the spinal cord. However, he states that he could identify Stevens's air column in each port film, and, using that as a point of reference, was able to determine the location of Stevens's spinal cord. Dr. Ellingwood argues that that sort of measurement was beyond Dr. Steidley's qualifications and is the sort of determination reserved for medical doctors. In addition, Dr. Ellingwood argues that Dr. Steidley's method of determining the location of the spinal cord was crude and unreliable.
The fact that Dr. Steidley is not a medical doctor does not necessarily preclude him from offering opinion testimony based on his review and evaluation of the port films. An expert witness is one with "such knowledge, skill, experience, or training... that his opinion will be considered in reason as giving the trier of fact light upon the question to be determined." C. Gamble, McElroy's Alabama Evidence § 127.01(5) (3d ed. 1977). Due to Dr. Steidley's extensive education and practical experience in radiation science, including reviewing port films, his knowledge exceeds that of the average juror or witness, and he was therefore competent to testify as an expert. Hulcher v. Taunton, 388 So. 2d 1203, 1206 (Ala.1980). Any objection Dr. Ellingwood has to Dr. Steidley's testimony that is based on Dr. Steidley's alleged lack of knowledge goes to the weight rather than to the admissibility of that testimony. Johnson v. State, 378 So. 2d 1164 (Ala.Cr. App.), cert. quashed, 378 So. 2d 1173 (Ala. 1979). In view of the facts of this case, the trial judge's decision to allow Dr. Steidley to offer an expert opinion concerning whether Stevens's spinal cord was within the field of radiation during the "off cord" treatments was not an abuse of discretion, and it will not be disturbed by this Court. Meadows v. Coca-Cola Bottling, Inc., 392 So. 2d 825 (Ala.1981).
Finally, Dr. Ellingwood contends that the trial court erred by allowing the jury to view a videotape depicting a day in Stevens's life. Dr. Ellingwood argues that all of the facts established by the videotape were testified to by witnesses, and, therefore, that the tape was cumulative and served only to prejudice the jury. Dr. Ellingwood urges this Court to adopt the policy set forth by the United States District Court for the District of Maine in Bolstridge v. Central Maine Power Co., 621 F. Supp. 1202 (D.Me.1985). That court held that such a videotape should be admitted only when the tape conveys information to the jury more accurately or more thoroughly than a witness can through testimony. Bolstridge, supra, at 1204. We decline to adopt this inflexible rule. In this jurisdiction, motion pictures are admissible if they are shown to be relevant and to accurately depict the subject matter, and if they tend to aid rather than confuse the jury. Those determinations are left to the sound discretion of the trial court and will not be reversed except for abuse of discretion. International Union, etc. v. Russell, 264 Ala. 456, 88 So. 2d 175 (1956) aff'd, 356 U.S. 634, 78 S. Ct. 932, 2 L. Ed. 2d 1030 (1958); Molina v. State, 533 So. 2d 701 (Ala.Cr.App. 1988), cert. denied, ___ U.S. ___, 109 S. Ct. 1547, 103 L. Ed. 2d 851 (1989). Dr. Ellingwood has not demonstrated such abuse; therefore, the trial court's determination will not be disturbed.
After a review of the record, this Court has found no reversible error by the trial court. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, SHORES and ADAMS, JJ., concur.
JONES, J., concurs in the result.
[1] The term "rad" is an acronym for "radiation absorbed dose." It is a unit of measurement of the absorbed dose of ionizing radiation. See The Sloane-Dorland Annotated Medical-Legal Dictionary 599-600 (1987).
[2] A summary judgment was entered in favor of the second physician, and he had no further involvement in this case. | June 29, 1990 |
ab264396-71d9-43d8-b5cd-5c0899e80017 | Epps Aircraft, Inc. v. Montgomery Airport Auth. | 570 So. 2d 625 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 625 (1990)
EPPS AIRCRAFT, INC.
v.
MONTGOMERY AIRPORT AUTHORITY.
89-916.
Supreme Court of Alabama.
September 14, 1990.
Rehearing Denied October 19, 1990.
*626 Dennis R. Bailey and Henry B. Hardegree of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellant.
Richard H. Gill of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
HOUSTON, Justice.
Exxon Corporation leased a fixed base operation[1] at Dannelly Field Montgomery Municipal Airport ("the Airport") from the Montgomery Airport Authority ("the Authority"), a public corporation organized under the provisions of Ala.Code 1975, § 4-3-1 et seq. That corporation was organized for the purpose of operating and maintaining the Airport.[2] Exxon subleased the facility to Epps Aircraft, Inc. ("Epps"). Subsequently, Epps purchased a Thrifty Car Rental franchise and began to operate an automobile rental service from its facility.
Exxon is obligated under the primary lease to pay as a rental fee $1,000 per month or, based upon a sliding scale, a percentage of its gross monthly income, whichever is larger.[3] The primary lease does not directly authorize Exxon to operate an automobile rental company at the Airport; it does, however, provide, in pertinent part, as follows:
Epps considered that the provisions of the primary lease quoted above, which were incorporated into the sublease, authorized it to operate the automobile rental service from its facility.
Epps included the gross income from its automobile rentals in calculating its rent under the sliding scale set out in the sublease, which was identical to the sliding scale set out in the primary lease; however, at the time Epps purchased its automobile rental franchise, other automobile rental companies doing business at the Airportthree of which operate solely out of the terminal and one of which operates out of both the terminal and another fixed base operationwere paying monthly rental fees equal to 10% of their gross incomes, pursuant to agreements that were apparently executed subsequent to the execution of Epps's sublease.
Taking the position that the primary lease did not authorize Epps to operate an *627 automobile rental service from its facility, the Authority adopted a resolution that reads, in pertinent part, as follows:
Epps sued the Authority, seeking a judgment declaring that it was not bound by the requirements of the resolution.[4] The Authority counterclaimed, seeking a money judgment against Epps for the amount that it alleged had accrued under the resolution. After considering the facts, which were stipulated, as well as various exhibits, the trial court ruled that Epps had failed to prove that automobile rental services fell within the lease category of "[s]uch other services ... and rental of such other items as from time to time may be handled by Fixed Base Operators generally," and, therefore, that it had failed to prove that it was entitled to provide the automobile rental service under the terms of the primary lease and the sublease. Accordingly, the trial court declared Epps to be subject to the requirements of the resolution, and it entered a judgment for the Authority on its *629 counterclaim.[5] Epps appealed. We reverse and remand.
As stated, this case was submitted to the trial court on stipulated facts. No testimony was taken; therefore, there is no presumption that the judgment was correct. This Court sits in judgment on the evidence in the same manner as did the trial court. Pennington v. Bigham, 512 So. 2d 1344 (Ala.1987).
Epps's principal contention is that it is authorized under the terms of the primary lease (i.e., under the provisions in the lease that authorize it to provide "[s]uch other services ... and rental of such other items as from time to time may be handled by Fixed Base Operators generally," and to use the Airport's roads) to engage in the automobile rental business and to use the Airport's roads for that purpose. It argues that the resolution constitutes an attempt on the part of the Authority to avoid its obligations under the primary lease and, therefore, that it violates Article I, § 22, of the Alabama Constitution of 1901. On the other hand, the Authority contends that Epps is not entitled under the terms of the primary lease to engage in the automobile rental business from its facility at the Airport. It argues, therefore, that Epps is subject to the requirements of the resolution.
The resolution fixed a charge of 10% of gross income on "non-tenant" automobile rental companies. A "non-tenant" automobile rental company is defined in the resolution as "a rental car business not having one of the rental car concession contracts or leases with the authority for the privilege of having offices and counter space in the terminal or terminal building from which to conduct rental car business," but "desir[ing] access to the terminal through the use of Airport roads to conduct its business." A careful review of the resolution shows that its primary purpose is to regulate the use of the Airport's roads by "non-tenant" automobile rental companies by requiring them to pay "the same percentage of all gross business receipts derived from the rental of vehicles to passengers from the Airport, as is being paid by Rent-A-Car Companies located within the terminal."[6]
Epps is doing business at the Airport as a "non-tenant" automobile rental company within the meaning of the resolution. Under the primary lease, Epps has the right to provide "[s]uch other services ... and rental of such other items as from time to time may be handled by Fixed Base Operators generally." Epps also has a right under the primary lease "of ingress to and egress from and over the entire Airport property on any and all roads ... which the Landlord controls ... subject to the reasonable rules and regulations of the Airport Director,"[7] and also the right "to transport passengers to and from transient aircraft to and from the terminal and other areas of the Airport."
Our review of the evidence, particularly an exhibit entitled "AOPA's Airports USA 1988," causes us to disagree with the trial court's conclusion that Epps failed to prove that automobile rental services fell within the lease category of "[s]uch other services ... and rental of such other items as from time to time may be handled by Fixed Base Operators generally." The word "general" is defined in Black's Law Dictionary (5th ed. 1979), as "[e]xtensive or common to many." The exhibit, which is a compilation of information about airports and airfields in the United States, characterizes automobile rentals as a "general service" provided by many fixed base operators, including those that operate at airports with terminals from which other *630 automobile rental companies do business. We hold, therefore, that Epps is entitled, under the aforementioned terms of the primary lease, to operate an automobile rental business at its facility and to use the Airport's roads in the pursuit of that business.[8] To hold otherwise would be to allow the Authority, which derives its power directly from the Legislature, to avoid its contractual obligations under the primary lease, in violation of Article I, § 22, of the Alabama Constitution ("no ... law, impairing the obligations of contracts, ... shall be passed by the legislature").
Furthermore, we note that the Airport, originally owned by the City of Montgomery, was conveyed by the City to the Authority "subject to ... rights of way for roads." Ala.Code 1975, § 4-3-11(19), by which the Legislature conferred certain powers on the Authority, provides as follows:
The rights-of-way that were providing public access to the Airport at the time it was conveyed to the Authority are not, by virtue of the reservation in the deed, "owned or controlled" by the Authority. The Authority, which, as previously stated, is a creature of the Legislature and whose powers are delineated by statute, lacks the power to charge a fee for, and thus impede, the use of those rights-of-way.
Because the judgment with respect to the other allegations made by Epps was based solely upon the trial court's determination that Epps was subject to the requirements of the resolution, we pretermit any discussion concerning the merits of those allegations. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] A fixed base operation is a commercial facility that offers a variety of services primarily to pilots and passengers of general aviation aircraft.
[2] The City of Montgomery had conveyed the Airport to the Authority.
[3] Under the sliding scale, Exxon is obligated to pay 4% of the first $20,000 of gross sales per month, plus 3% of the next $20,000, plus 2% of the next $10,000, plus 1% of all other gross sales per month above $50,000.
[4] Epps filed a multi-count complaint in which it also alleged 1) that it was entitled to specific performance of the primary lease; 2) that the Authority was estopped to claim 10% of the gross income generated by its automobile rental business; 3) that the Authority had interfered, and conspired to interfere, with several of its contracts; and 4) that the Authority was guilty of illegally controlling the prices of automobile rental services provided at the Airport.
[5] The trial court ruled that because Epps was subject to the requirements of the resolution, its other allegations were without merit.
[6] The resolution expressly prohibits a "non-tenant" automobile rental company from having an office or station at the Airport and from parking automobiles at the Airport. The Authority has not taken the position that this prohibition bars Epps from operating an automobile rental service out of its facility.
[7] We do not interpret the words "subject to the reasonable rules and regulations of the Airport Director," which are used from time to time in the primary lease, as conferring a right on the Authority to increase Epps's rent.
[8] The sublease contains the following provision, which, we note, is not contained in the primary lease:
"In the event, for any reason, the City of Montgomery or any other lawful authority limits, restricts or prohibits any activity permitted hereby, then the Lessee agrees to comply with such restriction, limitation or prohibition, provided, however, that upon the imposition of such restriction, limitation or prohibition, either party may at any time thereafter cancel and terminate this sublease, without liability to the other party, and rents shall be prorated to the date of such cancellation."
This provision did not form the basis for the trial court's judgment. Because the trial court did not rule as to the legal effect of this provision, we pretermit discussion of it. | September 14, 1990 |
8222f547-1971-4299-a4a5-39d043d4e8a7 | Hall v. Thomas | 564 So. 2d 936 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 936 (1990)
Ricardo HALL
v.
Mary Jane Cork THOMAS.
88-1191.
Supreme Court of Alabama.
June 29, 1990.
*937 James A. Hall of Ray, Oliver, Ward & Parsons, Tuscaloosa, for appellant.
Kenneth D. Davis of Zeanah, Hust, Summerford, Davis & Frazier, Tuscaloosa, for appellee.
ALMON, Justice.
This is an appeal from a judgment rendered on a jury verdict in favor of the defendant, Mary Jane Cork Thomas, in a negligence action arising from a motor vehicle accident. The question presented is whether the jury's verdict was against the great weight of the evidence.
On September 26, 1986, Thomas was driving along an entrance ramp to Interstate Highway 59 ("I-59"), northeast of Tuscaloosa, when she turned to speak to the passenger in her car. At that moment, Thomas lost control of her vehicle, left the pavement, and crossed the grassy area separating the entrance ramp from I-59. She then entered the right lane of traffic and struck a United States Postal Service truck being driven by Ricardo Hall.
Hall filed an action against Thomas, alleging negligence and claiming damages based on medical expenses, pain and suffering, and loss of earnings. At trial, Thomas argued that Hall was precluded from recovering because he had been contributorily negligent by not keeping a proper lookout and because he failed to show that the damages he claimed were proximately caused by the accident. Although it is not clear why the jury returned a verdict in Thomas's favor, her negligence in this case is obvious; therefore, we must infer that the jury accepted one of those two arguments. Hall argues that the trial judge's denial of his motion for a new trial was error because, he says, the jury's verdict was against the great weight of the evidence.[1]
To recover in a negligence action, the plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury to the plaintiff as a result of that breach. Smith v. Blankenship, 440 So. 2d 1063, 1065 (Ala.1983). All of the damages claimed by Hall are the result of purported injuries to his neck or back. He testified that he was in pain immediately after the accident and that his pain increased in severity over the next 24 hours. His testimony was corroborated by his mother and by Robert Bell, who was riding with Hall and who testified that Hall appeared to be in pain after the accident. However, both Thomas and Joseph Brzezinski, the state trooper who investigated the accident, testified *938 that Hall did not appear to have been injured in the accident.
Hall was examined by four physicians in the nine-month period after the accident. The first physician, Dr. Dewey Jones, an orthopedic surgeon, testified that all of Hall's physical findings were normal, and that all of the objective tests he performed on Hall, including X-rays and a CAT scan, were within normal limits. Dr. Gordon Kirschberg, a neurologist, testified that all neurological tests on Hall were normal, and he opined that Hall was suffering from, "at most," mechanical back pain. Dr. Roy Stanton, an internist, testified that his examination and tests revealed no severe injury to Hall's neck or back. He testified that Hall could return to work. The final physician, Dr. Rodney Belcher, an orthopedic surgeon, first examined Hall in May 1987, almost eight months after the accident. At that time, Dr. Belcher found no objective signs of injury to Hall's back or neck. However, in July 1987, Dr. Belcher discovered a herniated disc in Hall's spine. That defect was subsequently surgically corrected. Although that finding was the first objective finding of an injury to Hall's back or neck, Dr. Belcher was unable to say that it had been caused by the September 1986 accident.
As indicated by the conflicting testimony, there was considerable controversy as to whether Hall's health problem was proximately caused by his accident with Thomas. A jury is free to determine the extent of a plaintiff's injuries, but can not ignore the existence of those injuries, as long as the evidence is not in dispute as to whether there has been an injury. However, where the facts tending to show whether the plaintiff was injured as a proximate consequence of the defendant's negligence are in dispute, as in the instant case, "it is peculiarly within the province of the jury to resolve those conflicts." Pacheco v. Paulson, 472 So. 2d 980, 983 (Ala.1985). After reviewing the record, this Court is satisfied that there was sufficient evidence to allow the jury to conclude that Hall's herniated disc, which was first diagnosed 10 months after the accident, was not a proximate result of the accident with Thomas, and that he did not otherwise suffer any compensable injury. Smith, 440 So. 2d at 1067. Therefore, the trial judge was not in error in denying Hall's motion for a new trial.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] This Court notes that Hall's appellate counsel did not represent him at trial. | June 29, 1990 |
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