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117f111f-9932-4b09-b2cb-a538ce46115f | Raymond v. Amason | 565 So. 2d 614 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 614 (1990)
Odessa RAYMOND, et al.
v.
Helen AMASON and Harmon Walker.
89-1007.
Supreme Court of Alabama.
July 13, 1990.
John Keith Warren, Ashland, for appellants.
Lister H. Proctor of Proctor and Vaughn, Sylacauga, for appellees.
HOUSTON, Justice.
Helen Amason, the executrix of the will of Dixie Twilley, deceased, filed Ms. Twilley's will for probate in the Probate Court of Clay County. Amason was a beneficiary under the will, as was Harmon Walker. (Amason and Walker are hereinafter referred to as "the proponents.") Odessa Raymond, Frankie Bell Cornell, Eunice DeLoach, and F. B. Lawson Twilley, the sisters and brother of the deceased, contested the validity of the will. (These individuals are hereinafter referred to as "the contestants.") The contest was removed to the Circuit Court of Clay County on motion of the proponents, pursuant to Ala.Code 1975, § 43-8-198. Thereafter, the proponents filed a motion for a summary judgment, supported by their answers to interrogatories, *615 Ms. Twilley's will, and the depositions of contestants Raymond, DeLoach, and Twilley. The trial court entered a summary judgment in favor of the proponents, stating, in pertinent part, as follows:
Within 30 days of the entry of the summary judgment, the contestants filed what appears to be a Rule 59(e), A.R.Civ.P., motion to vacate the judgment. That motion was supported by various affidavits concerning Ms. Twilley's state of mind. Relying on Moore v. Glover, 501 So. 2d 1187 (Ala.1986), the trial court denied the motion to vacate, on the ground that the affidavits were untimely. The contestants appealed. We affirm.
Summary judgment was proper only if there was no genuine issue of material fact and the proponents were entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on the proponents to make a prima facie showing that no genuine issue of material fact existed and that they were entitled to a judgment as a matter of law. If that showing was made, then the burden shifted to the contestants to present evidence sufficient to avoid the entry of a judgment against them. In determining whether there was a triable issue of fact, this Court must view the evidence in a light most favorable to the contestants and resolve all reasonable doubts against the proponents. Because this action was not pending on June 11, 1987, the applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12.
In their respective answers to the interrogatories propounded by the contestants, the proponents stated that they had not "observed" or "learned" of a "mental abnormality" in Ms. Twilley in the six months immediately preceding her death. The three contestants who were deposed testified that they had no personal knowledge of Ms. Twilley's state of mind at the time she executed her will. The will itself was made self-proving, pursuant to Ala. Code 1975, § 43-8-132, by the acknowledgement of Ms. Twilley and the affidavits of two witnesses in Code form.[1]
*616 The record shows that this was the only evidence that was before the trial court at the time it entered the summary judgment. In our view, the proponents made a prima facie showing that the will was valid and, therefore, that they were entitled to a judgment as a matter of law. Consequently, it was incumbent upon the contestants to come forward with sufficient evidence to create a triable issue of fact. They did not do so. Accordingly, the trial court had no alternative but to enter a summary judgment for the proponents. Furthermore, the trial court did not err in denying the contestants' Rule 59(e) motion. It appears to us that the contestants were attempting to use that motion as a means of submitting evidence, belatedly, in opposition to the proponents' motion for summary judgment. This Court has held that a Rule 59(e) motion does not operate to extend the time for filing affidavits or other material in opposition to a motion for summary judgment. Moore v. Glover, supra.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Section 43-8-132 reads, in pertinent part, as follows:
"Any will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state where execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:
"`We, ______________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as his last will and that he signs it willingly (or willingly directs another to sign for him), and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is 18 years of age or older, of sound mind, and under no constraint or undue influence.' | July 13, 1990 |
cacb58f0-65e1-4948-9023-ec14d15a3699 | Dairyland Ins. Co. v. Jackson | 566 So. 2d 723 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 723 (1990)
DAIRYLAND INSURANCE COMPANY
v.
Leroy JACKSON.
88-1268.
Supreme Court of Alabama.
July 20, 1990.
*724 Jeffery C. Duffey, Montgomery, for appellant.
Mack Clayton, Alexander City, for appellee.
ALMON, Justice.
This is an appeal from a judgment rendered on a jury verdict in favor of Leroy Jackson and against Dairyland Insurance Company ("Dairyland") for $20,000. The dispute between these parties arose from a motor vehicle accident in which Jackson was injured.
Jackson was driving his brother's 1985 beige Isuzu pickup truck in the westbound lane of U.S. Highway 80 in Macon County immediately before the accident occurred. According to his testimony, two automobiles passed him traveling at a high rate of speed. Jackson testified that after the second of those two automobiles pulled in front of him its engine "blew up." The resulting cloud of smoke obscured his vision, he said, and he swerved into the eastbound lane of the highway. Upon crossing the lines dividing the two lanes of the highway, Jackson had a head-on collision with a 1980 red Toyota pickup truck. Both Jackson and Michael Reaves, a passenger in the Toyota pickup truck, were severely injured.
After that accident, Reaves filed an action against Jackson in Tallapoosa County, alleging negligence.[1] A judgment on a verdict of $50,000 was entered against Jackson in that action. Following that trial, Jackson filed the instant action in Macon County against Dairyland, pursuant to the uninsured motorist provision in his brother's insurance policy. Jackson alleged that the two drivers of the speeding automobiles *725 caused his injuries and that those drivers were uninsured.
The Dairyland policy insuring Jackson's brother (and permissive users of the brother's automobile, such as Jackson) is not in the record. Presumably, that policy provided liability coverage that would have been available to indemnify Jackson for the judgment against him in Reaves's action, because Dairyland concedes that the policy provided Jackson with coverage against injuries caused by uninsured motorists. However, Dairyland did not assert at trial, and does not now assert, that its policy provided any such liability coverage for Jackson. It appears that Dairyland did not defend Jackson against Reaves's claim, and there is no indication in the record that Dairyland has paid that judgment.
Jackson testified that the cloud of smoke from the car in front of him totally obscured his vision, and that he turned into the oncoming lane of traffic to avoid striking that car. Jackson's testimony was substantially corroborated by Melvin Sullen. Sullen testified that he was in the first of the two vehicles that passed Jackson and that Lawrence Singleton was driving the second vehicle. Sullen stated that Singleton's vehicle "threw a rod," causing the engine to "blow up," after he had passed Jackson. Sullen also testified that when he returned to the scene of Jackson's accident, there was still smoke present from Singleton's vehicle. Neither the driver of the automobile in which Sullen was a passenger nor Singleton was covered by liability insurance.
Additional evidence indicated that Jackson had consumed five or six beers during the 18-hour period before the accident. There was also evidence that his blood alcohol level exceeded .10% of his total blood volume after his admission to the hospital. However, Jackson's treating physician testified that that blood alcohol level was not accurate, due to treatment measures taken before the blood was drawn and because Jackson had lost a great deal of blood.
At trial, Dairyland stipulated that Jackson was using his brother's pickup truck with permission and was therefore covered under his brother's uninsured motorist policy with Dairyland, but maintained that Jackson was barred from recovering under the policy because his drinking constituted contributory negligence. Jackson denied being intoxicated and argued that he was faced with a sudden emergency that left him with no time to think before he turned into the oncoming lane of traffic.
After considering the evidence, the jury returned a verdict in Jackson's favor, implicitly rejecting Dairyland's contributory negligence defense, and assessing damages of $20,000. The trial judge denied Dairyland's motion for a new trial and entered a judgment consistent with the jury's verdict.
Dairyland appeals, arguing as it did at trial, that Jackson was barred from bringing this action against it by either the doctrine of res judicata or the doctrine of collateral estoppel. Dairyland also reasserts its argument that Jackson was precluded from recovering because he was contributorily negligent. Finally, Dairyland argues that the trial court erred by prohibiting Dairyland from presenting any evidence of Reaves's action against Jackson in Tallapoosa County, and by allowing Jackson's physician to testify regarding the reasonableness and necessity of his medical expenses.
The elements of res judicata, or claim preclusion, are (1) a prior judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) with substantial identity of the parties, and (4) with the same cause of action presented in both suits. Hughes v. Allenstein, 514 So. 2d 858, 860 (Ala. 1987). If those four elements are present, any claim that was or could have been adjudicated in the prior action is barred from further litigation. Dairyland was not a party to the prior action, and Reaves was not a party to the instant action. However, the "party identity criterion of res judicata does not require complete identity, but only that the party against whom res judicata is asserted was either a party or in privity with a party to the prior action or that the non-party's interests were adequately represented by a party in the prior suit, and the relationship *726 between the party and non-party is not so attenuated as to violate due process." Whisman v. Alabama Power Co., 512 So. 2d 78, 82 (Ala.1987) (citations omitted). Because Jackson was a party to both actions, and is the party against whom res judicata was asserted, the party identity criterion was met.
However, the fourth element of res judicata, that each suit was based on the same cause of action, was not met. The determination of whether the cause of action is the same in two separate suits depends on whether the issues in the two actions are the same and whether the same evidence would support a recovery for the plaintiff in both suits. Dominex, Inc. v. Key, 456 So. 2d 1047, 1054 (Ala.1984). Stated differently, the fourth element is met when the issues involved in the earlier suit comprehended all that is involved in the issues of the later suit. Adams v. Powell, 225 Ala. 300, 142 So. 537 (1932). Reaves's action against Jackson, which sounded in tort, involved only questions of negligence, and Jackson's claim for damages was not at issue. In contrast, Jackson's suit against Dairyland was a contract action on an insurance policy. To recover, Jackson had to produce evidence that he was covered under his brother's policy, that the accident was caused by an uninsured motorist, and that he was not contributorily negligent. Because the two actions were based on different theories, involved different plaintiffs, and required different evidence to entitle those plaintiffs to recover, they were not the same cause of action. Therefore, the doctrine of res judicata was not a bar to Jackson's action against Dairyland.
The doctrine of collateral estoppel, or issue preclusion, does not require identity of the causes of action involved. The elements of collateral estoppel are: (1) an issue identical to the one litigated in the prior suit; (2) that the issue was actually litigated in the prior suit; (3) that resolution of the issue was necessary to the prior judgment; and (4) the same parties. Pierce v. Rummell, 535 So. 2d 594, 596-97 (Ala.1988); Lott v. Toomey, 477 So. 2d 316, 319 (Ala.1985); Wheeler v. First Ala. Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala. 1978). Dairyland was not a party to the Tallapoosa County action, and Reaves was not a party to Jackson's action against Dairyland. Therefore, the "same parties" requirement is not met.
A number of decisions by this Court have indicated that the "same parties" requirement is not strictly enforced if the party raising the defense of collateral estoppel, or the party against whom it is asserted, is in privity with a party to the prior action. Constantine v. United States Fidelity & Guaranty Co., 545 So. 2d 750, 756 (Ala. 1989); Alabama Farm Bureau Mut. Cas. Ins. Co. v. Moore, 349 So. 2d 1113, 1116 (Ala. 1977); Mitchell v. Austin, 266 Ala. 128, 130, 94 So. 2d 391, 393 (1957). The test for determining if two parties are in privity focuses on identity of interest. Moore, supra; Suggs v. Alabama Power Co., 271 Ala. 168, 123 So. 2d 4 (1960); Rowe v. Johnson, 214 Ala. 510, 108 So. 604 (1926); Sosebee v. Alabama Farm Bureau Mut. Cas. Ins. Co., 56 Ala. App. 334, 321 So. 2d 676 (1975). This Court's reliance on the identity-of-interest test for determining the existence of privity extends at least as far back as 1853. In Winston v. Westfeldt, 22 Ala. 760, 771 (1853), this Court held:
The only party to the Tallapoosa County action that Dairyland could be in privity with is Jackson. Although there is no evidence in the record that Dairyland and Jackson shared a common interest in the Tallapoosa County action, even if this Court assumes that they did, they no longer have an identity of interest, due to their roles as adversaries in the Macon County action. Therefore, they are not in privity. Moore, supra; Suggs, supra; Rowe, supra; Winston, supra. In addition, Dairyland cannot take advantage of the prior judgment against Jackson in Tallapoosa County, because that judgment was against any interest it may have had in that action as a possible insurer of Jackson. *727 It is settled that the party claiming the benefit of the prior judgment as an estoppel against the opposing party must be one who would have been prejudiced by a contrary decision in the prior case. Constantine, supra; Interstate Electric Co. v. Fidelity & Deposit Co. of Maryland, 228 Ala. 210, 153 So. 427 (1934). Dairyland, as a possible insurer of Jackson, would have benefited from a contrary decision in the Tallapoosa County action.
Under the facts of this case, neither the "same parties" requirement nor the privity exception to that requirement has been met. Therefore, the doctrine of collateral estoppel is not a bar to Jackson's action.
Dairyland also contends that the evidence that Jackson's blood alcohol level exceeded .10% after the accident established that he was contributorily negligent and was thus barred from recovering from Dairyland. That defense was implicitly rejected by the jury. Alabama has long recognized the existence of the "sudden emergency" doctrine. Under that doctrine, a person faced with a sudden emergency calling for quick action is not held to the same correctness of judgment and action that would apply if he had had the time and opportunity to consider fully and choose the best means of escaping peril or preventing injury. Jefferson County v. Sulzby, 468 So. 2d 112 (Ala.1985); Gleichert v. Stephens, 291 Ala. 347, 280 So. 2d 776 (1973); Clark v. Farmer, 229 Ala. 596, 159 So. 47 (1935).
The jury was presented with sufficient evidence to allow it to conclude that Jackson was faced with just such an emergency. That conclusion could vitiate Dairyland's contributory negligence defense, because it could remove the factor of Jackson's alleged intoxication as the proximate cause of the accident. This Court will not disturb a jury's determination of a factual issue unless it appears plainly and palpably wrong. City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985). Absent a showing that Jackson's alleged negligence proximately contributed to the accident, the defense of contributory negligence would not preclude his recovery. Cooper v. Bishop Freeman Co., 495 So. 2d 559, 563 (Ala. 1986).
In addition, this Court finds no error on the part of the trial court in its decision to grant Jackson's motion in limine to prohibit any reference to the Tallapoosa County action in which Jackson was a defendant. As we stated earlier, the doctrines of res judicata and collateral estoppel were properly found to present no bar to Jackson's action. Therefore, the prejudicial effect of any evidence of the Tallapoosa County action would outweigh its probative value. Questions regarding the admissibility of evidence on grounds of relevancy rest largely with the trial court, and its rulings will not be disturbed unless there has been an abuse of discretion. AmSouth Bank, N.A. v. Spigener, 505 So. 2d 1030 (Ala. 1986). This Court finds no evidence of such an abuse in this case.
Finally, Dairyland contends that the trial court erred by allowing Dr. Jon Widener to give his opinion as to the reasonableness of the hospital bills incurred by Jackson as a result of the accident. However, as one of the first physicians to examine Jackson upon his admission to the hospital, and as Jackson's treating physician, Dr. Widener was well qualified to give an opinion as to whether the care given to Jackson was necessary and whether the charges for that care appeared to him to be "fair and reasonable." Opinion testimony by expert witnesses, such as Dr. Widener, on questions within their area of expertise, has been expressly authorized by our legislature. Ala.Code 1975, § 12-21-160; R.L. Reid, Inc. v. Plant, 350 So. 2d 1022 (Ala. 1977).
Because this Court finds no error on the part of the trial court, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Reaves included claims in that action against his insurer and against the insurer of the driver of the Toyota pickup truck for uninsured/underinsured motorist coverage. | July 20, 1990 |
68ab319b-3fdf-435c-8639-b0705f464b24 | Badners v. Prudential Life Ins. Co. | 567 So. 2d 1242 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1242 (1990)
Donna T. BADNERS, as executrix of the Estate of Thomas M. Badners, deceased
v.
PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, et al.
Carole B. TINDAL
v.
PRUDENTIAL LIFE INSURANCE COMPANY OF AMERICA, et al.
88-1609, 88-1637.
Supreme Court of Alabama.
August 3, 1990.
Rehearing Denied September 14, 1990.
*1243 Allan R. Chason of Chason & Chason, Bay Minette, for appellant Donna T. Badners.
Mary E. Murchison of Murchison & Sutley, Foley, and Bayliss E. Biles of Wilkins, Bankester, Biles & Wynne, Bay Minette, for appellant Carole B. Tindal.
Norborne C. Stone, Jr., and George R. Irvine III of Stone, Granade, Crosby & Blackburn, Bay Minette, for appellees Prudential Ins. Co. of America and John Grant.
James R. Owen, Bay Minette, for appellee First Alabama Bank of South Baldwin.
STEAGALL, Justice.
Donna T. Badners, as executrix of the estate of Thomas M. Badners, and Carole B. Tindal sued Prudential Life Insurance Company of America (hereinafter "Prudential"); John Grant, Prudential's local agent in Baldwin County; and First Alabama Bank of South Baldwin (hereinafter "First Alabama"), alleging fraud, bad faith failure to pay insurance proceeds, and breach of contract. First Alabama filed a cross-claim against Prudential, and Prudential filed a counterclaim against First Alabama. The defendants filed separate motions for summary judgment.
The trial court entered summary judgment for Prudential on all claims of Tindal and on the bad faith and breach of contract claims of Badners; Prudential's motion as to Badners's fraud claim was denied. The court also entered summary judgment for First Alabama on the fraud and bad faith claims of both plaintiffs; First Alabama's motion was denied on the breach of contract claims. The court entered summary judgment for Grant on the bad faith and breach of contract claims of both plaintiffs and on the fraud claim of Tindal; Grant's motion was denied as to Badners's fraud claim. The judgments entering summary judgment were made final pursuant to Rule 54(b), Ala.R.Civ.P. From the judgments in favor of the defendants, Badners and Tindal appeal.
On December 6, 1973, Thomas Badners and Prudential delivered to South Baldwin Bank[1] an authorization to honor checks drawn by and payable to Prudential on Mr. Badners's bank account number XX-XXX-XX. On January 4, 1974, Mr. Badners purchased an insurance policy, number XX-XXX-XXX, from Prudential, naming his wife, Carole J. Badners, as beneficiary. The policy allowed a 31-day grace period for payment of a premium in default. The policy provided further that if the premium remained unpaid at the end of the grace period, the policy's term insurance rider would terminate.
On March 19, 1984, Thomas and Carole Badners were divorced. Pursuant to the divorce judgment, Mr. Badners was to maintain the life insurance policy with Carole Badners as beneficiary. Four days before the judgment was entered, Mr. Badners closed bank account number XX-XXX-XX. Although First Alabama was not authorized to pay drafts on any other account of Mr. Badners, it continued to honor drafts payable to Prudential until June 1986, manually changing the account numbers on the drafts.
In June 1986, the bank refused to honor Prudential's draft against Mr. Badners's account number XX-XXX-XX for the monthly premium due on June 4, 1986. Prudential says that on June 17, it received notice that First Alabama was "unable to locate" Mr. Badners's account numbered XX-XXX-XX. The 31-day grace period expired on July 3, 1986, whereupon the term insurance rider terminated.
Thomas Badners died testate on July 18, 1986. His second wife, Donna T. Badners, was named as executrix of his estate. After Mr. Badners's death, Prudential informed Donna Badners that the policy was in default because the June 1986 draft for the monthly premium had been returned unpaid by First Alabama and, therefore, the premium was unpaid.
John Grant subsequently went to Donna Badners's home and told her that Prudential had changed its method of billing and *1244 that the premium had not been paid. Although Grant did not specify the amount due under the policy, he assured her that Prudential would pay the full proceeds due under the policy.
On August 26, 1986, Tindal,[2] the named beneficiary under the policy, made a claim for the benefits due under the policy. On September 4, 1986, Prudential paid Tindal $8,092.75 for extended term insurance due under the policy. Prudential did not pay the amount of the term insurance rider because of nonpayment of the July 1986 premium.
This case was filed on July 15, 1988. Accordingly, the "substantial evidence rule" applies to the rulings on the motions for summary judgment. See Ala.Code 1975, § 12-21-12.
Based on the allegations in Badners and Tindal's complaint, it appears that the fraud claims were brought pursuant to Code § 6-5-101. That statute reads as follows:
We have carefully reviewed the record and find that Tindal has not shown any misrepresentation of a material fact made to her by any defendant; nor has Badners shown any misrepresentation of a material fact made to her by First Alabama. See Webb v. Renfrow, 453 So. 2d 724 (Ala.1984).
The trial court correctly entered summary judgment for all defendants as to Tindal's fraud claim and for First Alabama as to Badners's fraud claim. The summary judgments on the fraud claims are, therefore, affirmed.
Likewise, the summary judgments as to the bad faith claims of Badners and Tindal are due to be affirmed. In Grimes v. Liberty National Life Ins. Co., 551 So. 2d 329 (Ala.1989), this Court, citing National Security & Casualty Co. v. Bowen, 417 So. 2d 179 (Ala.1982), stated:
551 So. 2d at 332.
Based on Grimes, we find that Badners and Tindal's bad faith claims against the defendants are without merit. The record shows no insurance contract between the plaintiffs and First Alabama or Grant. Furthermore, the record shows that Prudential did not pay the amount of the term insurance rider because the premium had not been paid; therefore, Prudential had a reasonably legitimate or arguable reason for its failure to pay the amount of the rider. The trial court, therefore, correctly entered summary judgment for the defendants on the bad faith claims.
Badners and Tindal concede that the summary judgments entered for Grant on the breach of contract claims were proper. Therefore, we need not address those judgments.
The contract count of Badners and Tindal's complaint reads as follows: "The Defendants, Prudential and the First Alabama Bank, breached the terms of their contractual agreement with the Plaintiffs by failing to pay the June 1986 monthly premium and applying it to payment on the life insurance policy." Badners and Tindal argue that because Prudential changed its *1245 method of billing and First Alabama did not pay the premium even though it had paid the draft for the premium for 27 months after Thomas Badners's account number XX-XXX-XX was closed and because no notice of default was given until well beyond the 31-day grace period, there is enough evidence to submit to a jury the question of whether there was a breach of contract by Prudential as to the agreement to pay the premiums automatically. We agree. The trial court erred in entering summary judgment for Prudential on the breach of contract claim. Accordingly, we affirm the summary judgment for Grant on the breach of contract claims and reverse the summary judgment for Prudential on the breach of contract claims.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS and KENNEDY, JJ., concur.
[1] South Baldwin Bank was the predecessor of First Alabama Bank of South Baldwin. Hereinafter, we will refer to this bank as "First Alabama."
[2] Carole J. Badners remarried and her name changed to Carole B. Tindal. | August 3, 1990 |
bee3d687-930c-4eaf-8a06-67c84ca8cd11 | DuPont v. Yellow Cab Co. of Birmingham | 565 So. 2d 190 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 190 (1990)
Wilbert O. DuPONT
v.
YELLOW CAB COMPANY OF BIRMINGHAM, INC.
88-1290.
Supreme Court of Alabama.
June 22, 1990.
*191 W. Lee Pittman of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellant.
Edgar M. Elliott III and Ralph C. Bishop, Jr. of Rives & Peterson, Birmingham, for appellee.
HOUSTON, Justice.
Wilbert O. DuPont appeals from a partial summary judgment in favor of defendant Yellow Cab Company of Birmingham, Inc. ("Yellow Cab"), in this action to recover damages for breach of contract. We affirm.
Yellow Cab contracted with the Birmingham Board of Education ("the Board") to transport physically handicapped students in the Birmingham school system. The contract provided, in pertinent part, as follows:
Yellow Cab subcontracted with DuPont's employer, Metro Limousine and Leasing Company ("Metro"), to provide transportation in connection with its contract with the Board. Thereafter, Metro purchased two buses from Yellow Cab to use in transporting the students. DuPont was injured when the brakes on the bus that he was driving failed, causing the bus to collide with a tree. DuPont sued Yellow Cab, along with others, alleging that under its contract with the Board Yellow Cab had a nondelegable duty to properly maintain the bus so as to keep it in a safe operating condition; that that duty flowed to him as an intended third-party beneficiary of the contract; and that Yellow Cab had breached the contract by failing to properly maintain the bus. The trial court entered a partial summary judgment in favor of Yellow Cab, stating that it could find no evidence tending to show that DuPont was an intended third-party beneficiary under the contract between the Board and Yellow Cab. That judgment was made final pursuant to Rule 54(b), A.R.Civ.P.
DuPont argues on appeal, as he did in the trial court, that there is a triable issue of fact as to whether he was an intended third-party beneficiary of the contract between the Board and Yellow Cab. Yellow Cab argues, on the other hand, that there is no evidence from which it can be reasonably inferred that DuPont was an intended third-party beneficiary of its contract with the Board. Yellow Cab argues, in the alternative, that it had no contract with the Board because, it says, by accepting the subcontracting services of Metro, the Board formed a new contract with Metro by way of a novation.
Summary judgment was proper in this case if there was no genuine issue of material fact and Yellow Cab was entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The burden was on Yellow Cab 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 DuPont to present evidence creating a genuine issue of material fact, so as to avoid the entry of a judgment against him. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990). In determining whether there was a genuine issue of material fact, this Court must view the evidence in a light most favorable to DuPont and must resolve all *192 reasonable doubts against Yellow Cab. Because this action was pending on June 11, 1987, the applicable standard of review is the "scintilla of evidence" rule. Ala. Code 1975, § 12-21-12.
Initially, we note that the record does not support Yellow Cab's argument that, as a matter of law, a new contract was formed between Metro and the Board by way of a novation and that the effect of it was to release Yellow Cab from liability under its contract with the Board. We simply cannot conclude from the evidence that, as a matter of law, the Board relieved Yellow Cab of its obligations under the contract and established a new contract with Metro for the transportation of the students. See Warrior Drilling & Engineering Co. v. King, 446 So. 2d 31 (Ala. 1984).
We do agree, however, that the record supports the trial court's entry of summary judgment. In Holley v. St. Paul Fire & Marine Insurance Co., 396 So. 2d 75 (Ala.1981), this Court reiterated the well-established rule that one who seeks recovery in contract as a third-party beneficiary must establish that the contract was intended for his direct, as opposed to his incidental, benefit. After reviewing the record, we conclude that Yellow Cab established that it was entitled to a judgment as a matter of law. The only reasonable inference that could be drawn from the evidence was that the contract between Yellow Cab and the Board was intended to bestow a direct benefit on the students who were to be transported under the terms of the contract, not on DuPont. In opposition to the motion, DuPont argued that there could be drawn from the evidence a reasonable inference that Yellow Cab and the Board contracted to directly benefit not only the students, but also the one person who would routinely be aboard the bus while it was in servicethe driver. The trial court reasoned, however, that although DuPont's safety was indeed contingent on the bus's being properly maintained, this fact alone did not warrant a reasonable inference that the contracting parties intended to bestow upon DuPont a direct benefit under the contract. We agree. At the time it contracted with the Board to transport the students, Yellow Cab was under an obligation, independent of the contract, to maintain its fleet of vehicles for the safety of its drivers. Ala. Code 1975, § 25-1-1. Furthermore, Yellow Cab was subject to the Alabama Workmen's Compensation Act, Ala.Code 1975, § 25-5-1 et seq. ("the Act"). Likewise, every company, including Metro, that might have been reasonably contemplated by Yellow Cab as a potential subcontractor was under the same obligation to maintain its vehicles for the safety of its drivers and was also subject to the Act. Consequently, we think the only reasonable inference that can be drawn from the evidence is that Yellow Cab contracted with the Board with full knowledge that the driver of a vehicle used in connection with the transportation of the students was owed a duty of due care, independent of the contract, and would be compensated under the Act for his personal injuries in the event of an accident. This leads us to the conclusion that the primary objective of the contract between Yellow Cab and the Board was to impose on Yellow Cab a nondelegable duty to maintain the vehicles, thereby further ensuring the safe and efficient transportation of the students. Yellow Cab's promise to the Board to properly maintain the vehicles that were to be used in the transportation of the students simply cannot be reasonably construed as intending primarily to benefit DuPont. Instead, it appears to us that Yellow Cab's promise to stand behind the maintenance of the vehicles, notwithstanding the fact that certain transportation services might be provided through a subcontractor, was a material, bargained-for provision in the contract to further ensure the safety of the students. Any benefit derived by DuPont from the contractual undertaking of Yellow Cab was, necessarily, incidental.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
*193 HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
JONES, J., dissents.
JONES, Justice (dissenting).
Because the contract between the Birmingham Board of Education and Yellow Cab Company, in my opinion, unequivocally gives a third-party beneficiary status to Wilbert O. DuPont, I dissent.
DuPont takes the position that he was an intended third-party beneficiary of the contract between the Birmingham Board of Education and Yellow Cab, from which, he says, a nondelegable duty flowed.
Yellow Cab, on the other hand, takes the position that "the duties to be performed under the contract between Yellow Cab and the Board were assignable." Furthermore, says Yellow Cab, because the Board accepted the services of the assignee, Metro Limousine and Leasing Company ("Metro"), a new contract was formed by way of a novation;[1] thus, Yellow Cab argues, it was released from its duties in regard to the assignment and it owes no duty to the Board or to any other beneficiary of the contract.
Necessarily antecedent to any discussion of DuPont's third-party-beneficiary status is a determination of whether Yellow Cab's duty to maintain the buses was, in law and in fact, delegable.
In the instant case, there exist both an assignment of rights and a delegation of duties. The assignment-delegation distinction is relatively straightforward: rights are assigned; duties are delegated. When a party to a contract transfers his rights under the contract to a third party, he has made an assignment. If a party to the contract appoints a third party to render performance under the contract, he has made a delegation. Generally speaking, upon assignment of a right, the assignor's interest in that right is extinguished; however, upon the delegation of a contractual duty, the delegating party remains liable under the contract, unless the contract provides otherwise or there is a novation.[2] Calamari and Perillo's Hornbook on Contracts, § 18-25 (3d ed.1987). Professor Knapp analogizes the assignment-delegation distinction thusly: "If assigning a right is like passing a football, then delegating a duty resembles more the dissemination of a catchy tune or a communicable disease: Passing it on is not the same as getting rid of it." C. Knapp, Problems in Contract Law 1161 (1976).
A duty is generally delegable unless the obligee (here, the Board) has a substantial interest in having the delegator (here, Yellow Cab) perform. Regarding this general rule, the Supreme Court of California wrote:
Thus, if the contract is premised on the artistic skill or unique abilities of a party, the contractual duties are not delegable.
Parties to a contract, however, have the unfettered freedom to determine whether duties under the contract may be delegated. The instant contract between the Board and Yellow Cab, however, contains no language prohibiting delegation. Too, the delegation of particular duties may be prohibited by statute or by public policy.
If the delegator (Yellow Cab) delegates a duty to a delegatee (Metro), and if the delegatee performs in accordance with the contract, the duty of the delegator (Yellow Cab) would be absolved. A valid delegation of a duty, however, does not release the delegator from liability, but makes him secondarily liable, after the delegatee. The duties of the delegator may be discharged, then, only through performance of the contractual duty owed. See Calamari and Perillo, supra.
As a general proposition, general contractors owe no liability to an independent subcontractor's employee who suffers an injury, where the general contractor was not in possession or control of the premises. Elder v. E.I. DuPont de Nemours & Co., 479 So. 2d 1243 (Ala.1985). As is usually the case, this "general rule" is saddled with exceptions. Elder at 1248-49. The first exception involves an activity or instrumentality that is "abnormally or intrinsically dangerous." Id. There is nothing in the record to suggest that the first exception is applicable here. The second exception applies when the general contractor is responsible for the manner of the performance of a nondelegable duty. Id. The Elder court also noted that a nondelegable duty may be found in general law or in a contract. Id.
DuPont concedes that there is no general law that places a nondelegable duty on Yellow Cab, but argues that the contract between Yellow Cab and the Birmingham Board of Education does place a nondelegable duty on Yellow Cab. DuPont points out that the contract between the Birmingham Board of Education and Yellow Cab contained a provision whereby Yellow Cab was obligated to "perform all maintenance and make all repairs to equipment so as to keep it in a safe efficient operating condition at all times." It is from this provision, says DuPont, that a nondelegable duty emanates.
In support of his position, DuPont places much emphasis on the case of Holley v. St. Paul Fire & Marine Insurance Co., 396 So. 2d 75 (Ala.1981). In Holley, the plaintiff, a visitor at a hospital, fell on the hospital's premises. She alleged that she was a "third-party beneficiary" of a contract between the hospital and a service firm wherein the service firm had contracted to perform inspections of the premises for safety and to maintain the lighting of the public areas at the hospital. Additionally, the plaintiff claimed that she was a "third-party beneficiary" of a contract between the hospital and an insurance company whereby the insurance company was to perform safety inspections. The trial court granted the defendant's motion to dismiss the plaintiff's third-party-beneficiary claims. In analyzing whether the plaintiff was an intended beneficiary of the contracts, the Holley Court wrote:
396 So. 2d at 80.
In comparing the Holley case to the instant case, DuPont seizes on the language *195 "play[s] a role in the scheme of" used in Holley. Specifically, DuPont argues as follows:
A reading of the contract between the Birmingham Board of Education and Yellow Cab leads me to the conclusion that Yellow Cab's duty to transport the children and to maintain the buses was, in fact, a delegable duty. However, the mere fact that its duty is delegable does not relieve Yellow Cab of its obligations under its contract with the Birmingham Board of Education. This determination, as emphasized earlier, is premised on one of the most fundamental tenets of contract law, which is that one may not simply delegate a duty to another and thereby discharge his own obligations to perform that duty. Callon Petroleum Co. v. Big Chief Drilling Co., 548 F.2d 1174 (5th Cir.1977).
Thus, the pivotal question is, to whom is that duty owed? This rhetorical question can be answered by naming those individuals who fall within the class commonly referred to as intended third-party beneficiaries.
Section 133 of the original Restatement of Contracts (1932) affords a person third-party-beneficiary status if he qualifies as either a creditor or a donee beneficiary. A person can enforce a contract as a donee beneficiary if it appears that "the purpose of the promisee in obtaining the promise... is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed or asserted to be due from the promisee to the beneficiary." A person can enforce a contract as a creditor beneficiary if "no purpose to make a gift appears... and performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary." A person who can not fit within either of the categories is referred to as an "incidental" beneficiary and has no rights under the contract.
The Restatement (Second) of Contracts (1981), however, has forsaken the terms "donee" and "creditor" because, according to the introductory note to Chapter 14 in the Restatement (Second), they "carry overtones of obsolete doctrinal difficulties."[3] "The Restatement (Second) of Contractsthe generally accepted text for beneficiary rightscategorizes beneficiaries as either `intended' or `incidental'" Note, Third Party Beneficiary and Implied Right of Action Analysis: The Fiction of One Governmental Intent, 94 Yale L.J. 875, 877-78 (1985).
*196 Restatement (Second) of Contracts § 302 (1981) reads:
As the driver of the bus, DuPont was clearly a key player in effecting the intent of the parties to fulfill their mutual obligations under the contract. Thus, the "recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties." We must go further, however, and test the instant facts under either subsection (1)(a) or (1)(b).
The commentary to § 302 (particularly by comments b & c) refers to a promise that falls under subsection (1)(a) as "a promise to pay the promisee's debt," and one that comes under subsection (1)(b) as a "gift promise." Comment d further indicates that a person who fails to qualify as an intended beneficiary under subsection (1)(a) or (1)(b) may nevertheless qualify as an intended beneficiary "if the beneficiary would be reasonable in relying on the promise as manifesting an intention to confer a right upon him." Calamari and Perillo's Hornbook on Contracts § 17-4 (3d ed.1987). See, also, Pennsylvania Liquor Control Board v. Rapistan, Inc., 472 Pa. 36, 371 A.2d 178 (1976), wherein the Pennsylvania Supreme Court stated:
472 Pa. at 45, 371 A.2d at 182.
In discussing the distinction and similarities between the first and second Restatements, Professors Metzger and Phillips have this to say:
Metzger and Phillips, Promissory Estoppel and Third Parties, 42 Sw.L.J. 931, 947-48 (1988).
At any rate, it is apparent that the drafters of the Restatement (Second) of Contracts intended for the "intent to benefit" test to be interpreted more broadly than the original test based on donee and creditor categories. Note, Third Party Beneficiaries and the Restatement (Second) of Contracts, 67 Cornell L.Rev. 880 (1982).
In Beverly v. Macy, 702 F.2d 931 (11th Cir.1983), the court held that the plaintiff was an intended beneficiary of a service agreement between the National Flood Insurers Association and the insurer responsible for servicing the plaintiff's flood policy. In discussing the importance of the intentions of the parties and the plaintiff's *197 reliance, as they pertained to the plaintiff's status as an intended beneficiary, the Beverly court, quoting from the Restatement (Second) of Contracts § 308, held:
702 F.2d at 940.
The Beverly court further noted:
Id. at 941.
Yellow Cab's principal argument in support of its motion for summary judgment on DuPont's "intended third-party-beneficiary" claim is that the contract between the Birmingham Board and Yellow Cab was intended for the sole benefit of the school children. Yellow Cab maintains that DuPont was, at best, an incidental beneficiary, and, thus, that he has no right of suit under the contract. Yellow Cab further maintains that at the time the contract was signed it was intended that its own employees would be used to fulfill its obligations under the contract. Specifically, Yellow Cab states in its brief that "[t]he law of Alabama provides that every employer shall furnish a `reasonably safe' work place for its employees," citing Ala.Code (1975), § 25-1-1, and it adds, "Accordingly, it would be redundant and without purpose for Yellow Cab to intend to directly benefit its employees by way of a contract that provides for maintenance of buses." I disagree.
There is nothing of merit in Yellow Cab's contention that it is relieved of liability on the ground that at the time of the contract it was assumed that its employees would be used in the transportation process, and that those employees would be covered under the worker's compensation statute. This argument would have merit but for the fact that Yellow Cab elected to subcontract with Metro. There is no requirement that the intended beneficiary be in existence or be identifiable at the time the contract was entered into; it is sufficient "that he be identifi[able] at the time performance is due." 4 Corbin, Contracts § 781, at 70 (1951). See also Restatement (Second) of Contracts § 308 (1981). "Nor have courts required that the promisee be inspired in whole or even in part by altruism. The test of intention to benefit may be met even though the promisee's motives were mixed. In applying the test, most courts have rightly looked to all the circumstances, without regard to the parol evidence *198 rule." E. Farnsworth, Contracts § 10.3 at 718-19 (1982).
After considering the oral arguments and briefs of counsel and thoroughly researching the issues, I conclude that DuPont was an intended beneficiary of the contract between the Birmingham Board and Yellow Cab and that he may therefore bring suit against Yellow Cab as such. As I read § 302, DuPont meets the test set out in subsection (1)(b). Yellow Cab agreed, not affirmatively and in so many words, but in effect and by clear implication, to pay to the extent of its liability for any injury received by an intended beneficiary of its contract with the Birmingham Board. The tenor of the contract suggests that all foreseeable and contemplated occupants of the vehicle would have rights under the contract. Certainly the bus driver would qualify as a foreseeable and contemplated occupant of the bus. To answer the question in its most pragmatic sense, the bus could not drive itself. See Dixie Stage Lines v. Anderson, 222 Ala. 673, 134 So. 23 (1931), holding that a bus company that had contracted to transport school children on a field trip could not relieve itself of liability for a negligent performance by employing an independent contractor. Specifically, Dixie Stage Lines stated: "The duty [to transport the school children] was to be performed by motorbus service, and the fact that defendant engaged by independent contract one of the buses, in the negligent operation of which plaintiff was injured, did not relieve defendant from liability to plaintiff." 222 Ala. at 675, 134 So. at 24. For the reasons stated, I would reverse the judgment of the trial court. Accordingly, I respectfully dissent from the opinion and judgment of the Court.
[1] "`Novation' may be broadly defined as a substitution of a new contract or obligation for an old one which is thereby extinguished. More specifically, it is the substitution by mutual agreement of one debtor or of one creditor for another, whereby the old debt is extinguished, or the substitution of a new debt or obligation for an existing one, which is thereby extinguished. A novation is a mode of extinguishing one contract or obligation by another, that is, the substitution, not of a new paper or note, but of a new obligation in lieu of an old one, the effect of which is to pay, dissolve, or otherwise discharge it." 15 Williston, Contracts § 1865, at 585-86 (3d ed. 1972).
[2] Because there is nothing in the record to suggest that the Birmingham Board of Education made an affirmative acknowledgment of the extinction of Yellow Cab's duty and subsequent substitution of Metro to perform that duty, no further discussion regarding "novation" is necessary. Ingalls Iron Works Co. v. Fruehauf Corp., 518 F.2d 966 (5th Cir.1975).
[3] "[T]he new Restatement appears to merge the old Restatement categories with a Corbin perspective (which is not remarkable since Professor Corbin has had overriding influence in the new Restatement drafts). Corbin has observed that thousands of cases involving third party beneficiary recovery demonstrate that refusal of remedy would have been out of harmony with generally prevailing ideas of justice and convenience [and `that cases in which a remedy was refused have often come to be regarded later as in shocking conflict with existing mores.]'" J. Murray, Murray On Contracts, § 279, at 569 (rev. 2d ed. 1974). | June 22, 1990 |
599e7d7a-8bee-48a5-b536-851da20903b4 | Johnson v. Asphalt Hot Mix | 565 So. 2d 219 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 219 (1990)
George Allen JOHNSON, Jr.
v.
ASPHALT HOT MIX, et al.
88-1507.
Supreme Court of Alabama.
June 29, 1990.
Charles N. Reese of Reese & Reese, Daleville, for appellant.
William L. Lee III of Lee & McInish, Dothan, and Joseph W. Adams, Ozark, for appellees.
ALMON, Justice.
This is an appeal from a partial summary judgment entered in favor of defendants Asphalt Hot Mix, Inc., Doris Mezick, and Charles Baggett, and against the plaintiff, George Allen Johnson, Jr., in a personal injury action.
Johnson was burned in an on-the-job accident while employed by Asphalt Hot Mix, Inc. ("Asphalt"). Some months after his injury, Johnson executed a "Release of All Claims," which stated in pertinent part:
Approximately one and one-half years after executing the release, Johnson filed an action against numerous defendants, alleging that he was entitled to recover damages under several theories.
Counts six and seven of Johnson's amended complaint contained allegations relating to Alabama's Workmen's Compensation Act ("Act"), Ala.Code 1975, § 25-5-1 et seq. Specifically, count six alleged that intentional acts of Mezick and Baggett, coemployees of Johnson, had caused his injury. A cause of action against a co-employee for his willful or intentional acts is authorized by § 25-5-11 of the Act. Count seven alleged that Asphalt had failed to pay benefits as required by the Act.
Asphalt, Mezick, and Baggett filed a motion for summary judgment, stating that the release executed by Johnson barred all of his claims. The trial court denied that motion except as to any cause of action brought pursuant to § 25-5-11. Summary judgment was entered on the claims allowed by that section. In his summary judgment, the trial judge held that the clause in the release preserving "any claim for Workmen's Compensation" did not preserve claims filed pursuant to § 25-5-11, but preserved only Johnson's right to file a claim for elective compensation under Article 3 of the Act. Johnson appeals the trial court's judgment, contending that summary judgment was improper because the release was (1) ambiguous; (2) not a part of a court-approved settlement; and (3) void as against public policy.
In the absence of fraud or ambiguity, a release supported by valuable consideration will be given effect according to the intention of the parties, which is to be judged by the court from what appears within the four corners of the instrument itself, and ordinarily parol evidence is not admissible to impeach or vary its terms. Trimble v. Todd, 510 So. 2d 810 (Ala.1987); Jehle-Slauson Constr. Co. v. Hood-Rich Architects & Consulting Engineers, 435 So. 2d 716 (Ala.1983); Ala.Code 1975, § 12-21-109.
Johnson did not make any allegations of fraud but contended that the release is ambiguous because it purports to release Asphalt, Mezick, and Baggett "from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever," while attempting to preserve "any claim for Workmen's Compensation," and that, under that ambiguity, the claim filed pursuant to § 25-5-11 is arguably a "claim for Workmen's Compensation." We do not agree. The language in the release is clear and unambiguous. An action against third parties or co-employees as allowed by § 25-5-11 is not a claim for Workmen's Compensation, but is a tort action for damages that is removed from the exclusive remedy provisions of §§ 25-5-52 and -53 by virtue of the exceptions set forth in § 25-5-11. Section 25-5-11(a) begins, *221 "Where the injury or death for which compensation is payable under this chapter was caused under circumstances also creating a legal liability for damages on the part of any party other than the employer" (emphasis added). Thus, under the very terms of § 25-5-11, an action allowed by that section is a legal action for damages, not a claim for compensation "payable under this chapter," i.e., it is not "a claim for Workmen's Compensation." See, also, § 25-5-1(1) for the definition of "compensation" and § 25-5-51, setting forth the right to such compensation.
Where no ambiguity exists, the court's only function is to interpret the lawful meaning and intentions of the parties as found within the agreement and to give effect to them. Johnston v. Bridges, 288 Ala. 156, 258 So. 2d 866, cert. denied, 409 U.S. 847, 93 S. Ct. 52, 34 L. Ed. 2d 88 (1972). The trial court correctly held that the release barred all tort actions that § 25-5-11 would otherwise allow Johnson to bring against his co-employees, while preserving his claims for workmen's compensation. Mezick and Baggett are named in the release and are thus explicitly entitled to its benefit. See Pierce v. Orr, 540 So. 2d 1364 (Ala.1989). As Johnson's employer, Asphalt was clearly due a summary judgment on the claim under § 25-5-11, because that section does not provide any action against an employer.
Johnson also argues that summary judgment was improper because the release was not part of a court-approved settlement. He argues that §§ 25-5-56 and -83 require that settlements for workmen's compensation claims, including claims brought pursuant to § 25-5-11, be approved by the circuit court. That argument is not correct. Section 25-5-56 requires court approval of a settlement between an employer and an injured employee for workmen's compensation benefits only if the settlement is not equal to the benefits due under the Act. King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987). Section 25-5-83 requires court approval only where the employer wishes to commute the benefits payable to the employee to one or more lump sum payments. Jamestown Corp. v. Ward, 373 So. 2d 1136 (Ala.Civ.App.), cert. denied, 373 So. 2d 1142 (Ala.1979). Neither of those statutes concerns actions brought pursuant to § 25-5-11. Such actions are not actions for workmen's compensation; rather, they are tort actions against co-employees or third parties that are permitted by § 25-5-11's exception to the Act's "exclusive remedy" provisions.
Finally, Johnson argues that the release violated public policy. However, unambiguous releases that are not tainted by fraud and are not overbroad in scope have been sanctioned by the legislature and do not contravene public policy. Ala.Code 1975, § 12-21-109.
For the reasons stated above, the partial summary judgment was correct and that judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | June 29, 1990 |
6d58dc8d-103b-4de0-8ad9-d3f0acd339a6 | Empiregas, Inc., of Belle Mina v. Suggs | 567 So. 2d 271 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 271 (1990)
EMPIREGAS, INC., OF BELLE MINA
v.
Walter SUGGS.
88-1360.
Supreme Court of Alabama.
June 29, 1990.
Rehearing Denied August 31, 1990.
*272 John F. Kizer, Jr. of Kizer & Bennitt, Birmingham, and Patton, Latham, Legge & Cole, Athens, for appellant.
Michael L. Fees of Watson, Gammons & Fees, Huntsville, for appellee.
ALMON, Justice.
This appeal is from a judgment entered on a jury verdict awarding the plaintiff $33,400 in an action for personal injuries and property damage. Walter Suggs was injured and his bus was destroyed, apparently when the relief valves on two propane gas tanks inside the bus discharged and the escaping gas caught fire. He brought this action against Empiregas, Inc., of Belle Mina, which, he alleged, had overfilled the tanks. Empiregas appeals, arguing that Suggs was contributorily negligent as a matter of law, that he did not prove the amount of the damage to his bus, and that he did not prove that the gas tank had been filled by Empiregas.
Suggs had installed living facilities in the bus, including beds, kitchen facilities, and so forth. At the back of the bus he had a gas heater fueled by two propane tanks on a platform or porch he had attached to the back of the bus. On the day of the fire, December 27, 1985, he had two tanks on the back porch and two inside the back door. He drove the bus to a flea market that he operated in Lacon, Alabama, to meet a vendor who needed to set up a stall for the market the following day. While he was waiting, another vendor, James Johnson, arrived and asked Suggs to help him set up his stall.
As Suggs was leaving the bus to help Johnson, he turned on a small electric space heater at the front of the bus. While he and Johnson were inside the flea market building, they heard an explosion. They ran outside and saw smoke coming out of the bus. They used a hoe to remove the propane tanks from the back porch and the inside of the bus. While Suggs was pulling one of the tanks out through the back door of the bus, it turned over and splashed burning gas on his face and hands.
The apparent cause of the fire was that the two tanks inside the bus had warmed up, causing the gas in them to expand and force open the relief valves on the tanks. The president of Empiregas testified that it would take a temperature of 115 or 120 degrees or more to cause a relief valve on a properly filled tank to release. Suggs's expert witness testified that it would take 160 degrees or more to release a relief valve on a properly filled tank. He estimated that the tank that caused Suggs's burns had been filled 95-97% full instead of the proper amount of 80-85% full. In such a full tank, the expert said, a temperature rise of only a few degrees would cause the pressure to rise enough to open the relief valve.
Empiregas contends that Suggs was contributorily negligent in not removing the tanks from the inside of the bus. It bases its argument principally on the following testimony by Suggs:
*273 This evidence is not sufficient to hold Suggs contributorily negligent as a matter of law.
Central Alabama Electric Coop. v. Tapley, 546 So. 2d 371, 381 (Ala.1989).
Suggs's testimony showed only that he ordinarily would have removed the two tanks from the trailer and that he was aware of a danger of leaving the two tanks inside if he turned the gas heater on. The tanks were sitting right next to the gas heater, though, and the small electric space heater that he turned on was at the other end of the bus. The last question and answer quoted above show only that, in retrospect, Suggs would have taken the tanks out if he had thought about doing so upon turning on the electric heater. That a party who has been injured says he would act differently next time, so as to prevent the injuries, does not conclusively establish his negligence in not having the foresight to prevent the injuries on the first occasion and certainly does not show "a conscious appreciation [of the danger] at the moment the incident occurred." Tapley.
Empiregas also attempted to prove that Suggs had violated regulations regarding the handling and storage of propane gas. That evidence, however, did not establish his contributory negligence, for two reasons: the regulations are distributed only to suppliers of the gas, such as Empiregas, not to consumers, and there was no evidence that Suggs knew of them; and Suggs's expert witness testified that his keeping the tanks inside the bus did not violate the regulations.
Thus, we cannot overturn the trial court's ruling that the evidence presented a question of fact as to whether Suggs was contributorily negligent.
Empiregas next argues that Suggs did not prove the amount of his damages resulting from the loss of the bus and that, therefore, the trial court erred in submitting to the jury the issue of damages for loss of personal property. Empiregas cites Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955), and Shackleford v. Brumley, 437 So. 2d 1044 (Ala.Civ.App. 1983), for the rule that, generally, the measure of damages for the total loss of a vehicle is the market value immediately before the accident less the salvage value afterward. That rule is not a limitation on the availability of recovery, however; rather, it is the principal manner of determining the amount of such a recovery, to be applied "`subject to the primary and basic principle that it is the purpose of the law to fairly compensate the injured for the wrong committed.'" Alford v. Jones, 531 So. 2d 659, 660-61 (Ala.1988), quoting Hannah v. Brown, 400 So. 2d 410 (Ala.Civ.App. 1981).
Suggs testified as follows regarding the value of the bus:
This evidence was sufficient for the jury to find a value of $5000 before the fire and $600 after. We see no error in submitting the question to the jury.
The final argument by Empiregas is that the trial court erred in denying its motion for directed verdict on the ground that no proof had been offered that the gas tanks that caused the fire had been filled by Empiregas. In its response to Suggs's requests for admissions, Empiregas had admitted that it had sold propane gas to Suggs on or about December 27, 1985. Although those admissions were never introduced into evidence and Suggs did not testify that he had bought the gas from Empiregas, his expert witness was allowed to testify without objection that Suggs had said he had bought the gas at Empiregas.
When the attorney for Empiregas argued to the jury that Suggs had not testified that he had bought the gas from Empiregas, Suggs's attorney objected to what he called a mischaracterization of the evidence and, after the court overruled the objection, moved to reopen his case. The court responded, "I will charge the jury on the issues in the case." The court charged the jury that Empiregas had admitted selling gas to Suggs.
Any matter admitted pursuant to Rule 36, Ala.R.Civ.P., "is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Rule 36(b). Such admissions are a sufficient basis upon which to enter summary judgment. Evans v. Insurance Co. of North America, 349 So. 2d 1099 (Ala. 1977). The court properly treated the admission in this case as establishing the fact that Empiregas sold the gas to Suggs and as eliminating the need for proof thereof. Elimination of the need for proof of undisputed facts is the very purpose of Rule 36. Evans, supra; Committee Comments, Rule 36.
There being no reversible error presented, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | June 29, 1990 |
fa01d55c-9d9f-488b-b290-6a3be5b6f445 | Koch v. State Farm Fire and Cas. Co. | 565 So. 2d 226 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 226 (1990)
Daniel L. KOCH and Roberta P. Koch
v.
STATE FARM FIRE AND CASUALTY COMPANY, a corporation; and James E. Robinson.
89-171.
Supreme Court of Alabama.
June 29, 1990.
*228 Joseph C. Sullivan, Jr. and Richard E. Corrigan of Hamilton, Butler, Riddick, Tarlton & Sullivan, Mobile, for appellants.
Carl Robert Gottlieb, Jr. and William W. Watts III of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellee.
HOUSTON, Justice.
Daniel L. Koch and Roberta P. Koch filed a multiple-count complaint against State Farm Fire and Casualty Company and its agent, James Robinson (both hereinafter referred to as "State Farm"), alleging breach of contract,[1] bad faith refusal to pay an insurance claim, and fraudulent concealment,[2] relating to damage to an exterior wall;[3] and breach of contract, bad faith refusal to pay an insurance claim, and misrepresentation, relating to damage to the kitchen floor. The trial court directed verdicts in favor of State Farm on all counts. The Koches appeal from the resulting judgment. We affirm.
The standard of review for a directed verdict and a summary judgment are essentially the same. Kizziah v. Golden Rule Ins. Co., 536 So. 2d 943 (Ala.1989). 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; Robichaux v. AFBIC Development Co., 551 So. 2d 1017 (Ala.1989); Perry v. Hancock Fabrics, Inc., 541 So. 2d 521 (Ala.1989). In actions filed after June 11, 1987, a directed verdict for the defendant would be proper when the plaintiff has failed to present "substantial evidence" as to each element of his cause of action. See Watters v. Lawrence County, 551 So. 2d 1011 (Ala.1989); see, also, § 12-21-12(d).
For purposes of clarity, we will divide the Koches' claims into two categories: (1) causes of action involving claims based on damage to an exterior wall of the Koches' house and (2) causes of action involving an insurance claim based on damage to the kitchen floor of the Koches' house.
In 1978, the Koches moved into their present house, retaining the homeowner's coverage with State Farm that they had obtained on their previous house. Following Hurricane Frederic in 1979, the north interior wall of their house suffered water damage, for which they filed a claim with, and were paid by, State Farm, less the deductible. In 1981, this wall again suffered damage from "windblown rain," evidenced by water stains on the inside of the wall. State Farm again paid the Koches' claim, less the deductible. In an effort to determine the source of the water damage to the interior of the house, State Farm retained Thompson Engineering Testing Company ("Thompson") to inspect the Koches' house "to determine if moisture intrusion which had stained several areas throughout the residence was caused by wind, natural causes or by construction or design deficiencies." Thompson visually inspected the Koches' house and rendered a report to State Farm, listing several "possibilities" for leaks (as shown in certain photographs) and made several recommendations for preventing water intrusion. Upon receiving a copy of the report from Thompson, the Koches hired a contractor to make the recommended repairs. No evidence was presented that State Farm authorized Thompson to send the Koches the report, nor was there any evidence that State Farm had any contact with the Koches concerning the report from Thompson.
In 1985, State Farm again received and paid a claim, less the deductible, filed by the Koches for damage to the interior wall caused by "windblown water" from Hurricane Elena.
*229 In the spring of 1987, the Koches noticed that an exterior wall (away from the previously damaged interior wall) needed repair, and they retained Mike Owens, a contractor, to undertake the necessary repairs. Although not initially hired for the purpose, Owens discovered water intrusion on the inside of the interior north wall and, upon removing the redwood siding of the house, Owens found extensive moisture damage to the substructure of the interior north wall from the base of the wall almost to the roof; the wood was rotting or deteriorating. Thereafter, the Koches filed a claim under their homeowner's policy for water damage to the exterior wall of their house. State Farm denied coverage to the exterior wall but did pay, as it had before, for water stain to the interior north wall.
The Koches contend that the water that had been driven by hurricane-force winds through the exterior wall in 1979, 1981, and 1985, causing damage to the interior wall for which State Farm paid the claim, remained undetected, and, thus, remaining in the dark, unventilated space between the interior and the exterior wall, resulted in substantial damage to the exterior wall.
In their brief, the Koches argue that State Farm breached its contract by failing to pay damages allegedly caused by water driven through the exterior of the wall by hurricane-force winds. However, a thorough review of the record reveals that the last amended complaint filed by the Koches did not contain a claim for breach of contract relating to the wall damage; rather, Count I alleged bad faith and Count II alleged fraudulent concealment. The Koches' attorney admitted at trial that the amended complaint governed the lawsuit. Thus, State Farm argues that all of the evidence that it introduced without objection concerning the exterior wall damage claim was directly relevant to and admissible under the bad faith claim; that the introduction of such evidence did not relate exclusively to some unstated breach of contract claim, but was offered to rebut a necessary element of a bad faith claim; that the pleadings therefore cannot be deemed to have been amended by consent under Rule 15(b); and thus, that the issue of State Farm's contract liability was never tried by the implied consent of the parties.
McCollum v. Reeves, 521 So. 2d 13, 17 (Ala. 1987) (quoting Wright & Miller, Federal Practice and Procedure: Civil, § 1493 (1971)). We agree. Therefore, the breach of contract claim is not at issue.
Bad faith is the intentional failure by an insurer to perform the duty of good faith and fair dealing implied by law. In order to prevail on a cause of action for bad faith refusal to pay an insurance claim, the Koches had the burden of proving the following:
King v. National Foundation Life Ins. Co., 541 So. 2d 502, 504-05 (Ala.1989); see, also, National Security Fire & Casualty Co. v. Bowen, 417 So. 2d 179 (Ala.1982).
It is undisputed that the policy at issue was in full force and effect in 1987 when the damage to the exterior wall and to the interior wall was discovered and reported to State Farm. The pertinent portions of the insurance policy are as follows:
"....
From a review of the record, it appears that after a reasonable investigation of the Koches' claim, State Farm determined that the damage to the exterior wall for which the Koches seek recovery was due to rot and deterioration, a loss clearly excluded under the express provisions of the policy, as stated above. Both State Farm and the Koches testified that this was the condition of the wall substructure at the time the damage was discovered in 1987. Although the Koches allege several theories for the damage, the specific cause of the rotting and deterioration, whether leakage or seepage of water from a defective condition, from leakage around the chimney or from *231 improperly installed flashing around a chimney, or from windblown rains, etc., makes no difference to the coverage issue. The overall structure of the policy provides coverage for damage caused by water intrusion that is immediate and accidental, but excludes coverage for losses that result from long periods of decay and deterioration. Based on the foregoing, State Farm had an arguable, debatable basis for denying coverage for the wall claim resulting from the rotting and deteriorated condition of the wall.
Furthermore, to present a prima facie case of bad faith in a "normal" case, the offered proof must demonstrate that the plaintiff is entitled to a directed verdict on the contract claim. See Kizziah v. Golden Rule Insurance Co., supra; see, also, National Savings Life Insurance Co. v. Dutton, 419 So. 2d 1357 (Ala.1982). The present case falls within the "ordinary" or "normal" case described in National Savings Life Insurance Co. v. Dutton, supra, and is not an "extraordinary" case, such as Continental Assurance Co. v. Kountz, 461 So. 2d 802 (Ala.1984). Therefore, because the Koches would not have been entitled to a directed verdict on a contract claim, had they made such a claim, their bad faith claim must fail. See Hilley v. Allstate Insurance Co., 562 So. 2d 184 (Ala. 1989).
Based on the foregoing, we conclude that the trial court properly directed a verdict on the Koches' bad faith claim.
The Koches contend that, when State Farm voluntarily undertook to retain Thompson to conduct a visual inspection of their house, it assumed the duty of performing the inspection in a competent manner; and that, because the inspection did not result in the discovery and determination of the source of the water intrusion and of the damage resulting to the exterior wall, State Farm is liable for the resulting damage.
A review of Count II of the Koches' last amended complaint, which governs this suit, reveals an absence of allegations of negligent inspection; rather, the complaint asserts an obligation to disclose defects that existed in the Koches' house and a concealment of these defects, done maliciously and with the "intent to injure the plaintiffs." It does not state a claim based on negligent inspection. Thus, State Farm contends that any evidence introduced at trial concerning the inspection of the premises by Thompson in 1981 and the alleged resulting failure to disclose or detect the defects at that time was admissible to negate the cause of action based on fraudulent concealment. The introduction of evidence relating to the 1981 inspection, without objection, cannot be used now to suggest that an unstated claim for negligent inspection was tried by the implied consent of the parties. See McCollum v. Reeves, supra.
However, there appears to be some confusion in the record as to whether the trial court directed a verdict on that issue rather than on the issue of fraudulent concealment, which was the cause of action pleaded. In any event, if negligent inspection was at issue, State Farm contends that any claim of negligence filed by the Koches in April 1988 would be barred by the statute of limitations. A negligence cause of action accrues as soon as the claimant is entitled to maintain an action, regardless of whether the full amount of damages is apparent at the time of the first legal injury. Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So. 2d 468 (1973); see, also, Armstrong v. Life Ins. Co. of Virginia, 454 So. 2d 1377 (Ala.1984), overruled on other grounds, Hickox v. Stover, 551 So. 2d 259 (Ala.1989). If we were even to consider the possibility of negligence on the part of State Farm, we would have to conclude that any damage for which State Farm could be liable, arising out of the inspection of the premises in 1981, would have occurred in 1985, when there appeared the water damage to the interior wall, for which State Farm paid a claim. In 1985, the applicable statute of limitations allowed one year in which to sue; therefore, a claim filed in 1988 for damage occurring in 1985 is barred by the then applicable one-year statute of limitations. *232 See Ala.Code 1975, § 6-2-39. Based on the foregoing, we conclude that the Koches' claim for negligent inspection is barred by the statute of limitations.
Therefore, we hold that the trial court could have properly directed a verdict in favor of State Farm as to the negligent inspection claim.
In August 1987, the Koches filed a claim with State Farm based on damage to the vinyl floor in their kitchen. Robinson visually inspected the damage, taking photographs of the floor and taking measurements to determine the amount of vinyl flooring needed for a repair. Thereafter, Robinson estimated the approximate replacement cost of the damaged floor (based upon his 16 years of personal experience), without consulting price books or manuals. The following day, Robinson sent the Koches a check for $248.97 (the estimated replacement cost of $348.97, less the $100 deductible). Four to six weeks later, the Koches notified Robinson that they thought the amount was insufficient to replace the floor. Robinson testified that he told the Koches to get an estimate to determine if the amount of the check that he had sent them to replace the damaged floor was inadequate. The Koches, on the other hand, allege that Robinson told them to have the floor repaired and send him the bill and that he would pay it.
Ms. Koch testified that the original floor was of the best quality flooring available at that time. She further testified that when she went to the seller and installer of the original floor to purchase the replacement flooring and found that the original flooring had been discontinued, she again requested the best quality flooring available at that time. Thereafter, in February 1988, the Koches submitted a bill to Robinson for installation of the new floor in the amount of $731.91. Upon receipt of the bill, because of the discrepancy between the cost of the new flooring and Robinson's estimate, Robinson contacted another flooring contractor to check on the price to replace the Koches' flooring. Robinson confirmed that the exact pattern of the Koches' original flooring was no longer in production, but he discovered that the manufacturer of that particular flooring had replaced it with a floor covering under a different name. By using the cost of the replacement product, Robinson adjusted his earlier estimate, increasing it by $189.75; and in March 1988, he forwarded the Koches a check for this additional amount.[5] Including this second check, the total amount paid by State Farm to the Koches totalled $438.72 ($538.72 less the $100 deductible) $193.19 less than the total expenses the Koches had incurred for replacing their floor. Because it was less, the Koches brought claims alleging breach of contract, bad faith, and misrepresentation.
It is undisputed that the policy at issue covered "accidental direct physical loss to [personal property]" and that covered property losses would be settled on a replacement cost basis.[6]
The pertinent portion of the policy reads as follows:
State Farm offered evidence that the cost to replace the original floor with a comparable floor was $538.72the total of the two checks that State Farm sent to the Koches ($438.72) plus the $100 deductible. This evidence demonstrates that, upon being notified that the Koches' bill for the cost of the replaced flooring was greater than Robinson's original estimate and payment, Robinson investigated the replacement cost of the Koches' flooring and then *233 sent the Koches another check for the difference between his original estimate and his revised estimate of the replacement cost. Pursuant to the express terms of the policy, State Farm was under no obligation to pay any more than replacement cost.
The Koches presented no evidence that the $731.91 cost of the vinyl flooring that Ms. Koch ordered and had installed was not greater than the "replacement cost" i.e., greater than the cost of flooring comparable to that which was damagedwhich State Farm had agreed under its policy to pay.
Thus, State Farm presented a prima facie showing that the amount it paid to the Koches was the "replacement cost" and that it was entitled to a verdict as a matter of law. Therefore, it was incumbent upon the Koches to present substantial evidence to rebut that showing. They failed to do so. Based on the foregoing, we hold that the trial court properly directed a verdict in favor of State Farm on the breach of contract claim.
In a "normal" case, such as this one, to prevail on a claim based on an alleged bad faith refusal to pay, the plaintiff must be entitled to a directed verdict on the underlying contract claim. Kizziah v. Golden Rule Insurance Co., supra; Payne v. Nationwide Mutual Insurance Co., 456 So. 2d 34 (Ala.1984).
Having concluded that the trial court properly directed a verdict as to the Koches' breach of contract claim with regard to the cost of replacing the damaged floor, we must also approve the directed verdict as to the Koches' bad faith claim with regard to the cost of replacing that damaged floor. See Hilley v. Allstate Insurance Co., supra; see, also, Strickland v. Alabama Farm Bureau Mutual Cas. Ins. Co., 502 So. 2d 349 (Ala.1987); Madison County Sheriff's Posse, Inc. v. Horseman's United Ass'n, Inc., 434 So. 2d 1387 (Ala. 1983).
The Koches allege that Robinson told them to submit the bill for repairs to the floor to State Farm and that "it would be paid," but that Robinson refused to pay the claim. Clearly the Koches' fraud claim is predicated upon Robinson's alleged misrepresentation concerning his intent to perform under the contract. In order to have the fraud claim submitted to the jury, the Koches had to present sufficient, i.e., "substantial," evidence of the basic elements of fraudulent misrepresentation (Ala.Code 1975, § 6-5-101), and they must prove that Robinson intended "at the time of the alleged misrepresentation, not to perform" and "made the representation with a present intent to deceive." See Watters v. Lawrence County Commission, supra; see, also, Selby v. Quartrol Corp., 514 So. 2d 1294, 1297 (Ala.1984); Coastal Concrete Co. v. Patterson, 503 So. 2d 824 (Ala. 1987); and Russellville Production Credit Association v. Frost, 484 So. 2d 1084 (Ala. 1986).
Hearing Systems, Inc. v. Chandler, 512 So. 2d 84, 87 (Ala.1987) (quoting Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515, 519 (Ala.1983)).
State Farm argues that the Koches offered no proof that, at the time of the alleged misrepresentation, Robinson and/or State Farm did not intend to pay the replacement cost of the flooring, but rather that all reasonable inferences to be drawn from the evidence lead to the conclusion *234 that State Farm and Robinson had every intention of abiding by the policy provisions and of adjusting the claim based on replacement cost. We are persuaded by this argument; and, therefore, we conclude that the trial court properly directed a verdict in favor of State Farm and Robinson on the Koches' claim of misrepresentation.
The judgment based on the directed verdicts for the defendants is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Although breach of contract was a cause of action pleaded in the original complaint, the final amended complaint did not contain a cause of action for breach of contract.
[2] While the complaint and amended complaints referred to a "fraudulent concealment" claim, the parties seem to have treated this claim as a claim based on "negligent inspection."
[3] Although the area that was actually damaged was the substructure of the north interior wall, this area is referred to in the complaint and briefs as the exterior wall.
[4] A debatable reason means an arguable reason; a reason that is open to dispute or question. See Chavers v. National Security Fire Insurance Co., 405 So. 2d 1 (Ala.1981); see, also Woodward v. Champion Ins. Co., 548 So. 2d 1026 (Ala. 1986).
[5] The Koches cashed both checks sent to them for the vinyl floor claim.
[6] It is undisputed that the Koches understood that their policy covering their floor claim allowed replacement cost. | June 29, 1990 |
8361768e-776a-4c8a-9200-acad591c05ed | Moore v. RAY SUMLIN CONST. CO., INC. | 570 So. 2d 573 | N/A | Alabama | Alabama Supreme Court | 570 So. 2d 573 (1990)
Andy MOORE and Zeatherine Moore
v.
RAY SUMLIN CONSTRUCTION COMPANY, INC.
88-1270.
Supreme Court of Alabama.
June 29, 1990.
Richard F. Pate and J. Wesley Sowell, Mobile, for appellants.
Mack B. Binion and Donna L. Ward of Briskman, Binion & Browning, Mobile, for appellee.
PER CURIAM.
This is an appeal from a judgment rendered on a jury verdict in favor of the defendant, Ray Sumlin Construction Company, Inc. ("Sumlin Construction"), in a personal injury action that arose from a workplace accident. The only issue this Court will address at this stage is whether this cause is due to be remanded to allow the trial court to conduct an evidentiary hearing to determine if the plaintiffs, Andy and Zeatherine Moore, made out a prima facie showing of purposeful discrimination by Sumlin Construction in its use of its peremptory challenges during the jury selection process.
Andy Moore, who is black, was employed by Donaghey Plumbing Company ("Donaghey"), a subcontractor on a construction project supervised by Sumlin Construction, the general contractor. Moore was injured *574 when a piece of lumber being raised on a hoist by employees of Sumlin Construction fell and struck him on the head. He filed a complaint against Sumlin Construction, alleging negligence and wantonness. His wife, Zeatherine Moore, added a claim for loss of consortium.
During the selection of the jury Sumlin Construction used all of its peremptory challenges to have eight of the nine black persons on the jury venire stricken.[1] The Moores objected to Sumlin Construction's peremptory challenges before the jury was empaneled and asked the trial judge to order Sumlin Construction to offer race-neutral reasons for its challenges. The court overruled the objection and denied the Moores' request. Following the entry of judgment by the trial court, the Moores filed a motion for j.n.o.v. or, in the alternative, for a new trial, arguing, inter alia, that Sumlin Construction's use of its peremptory challenges raised an inference of purposeful discrimination and that the trial judge had erred by not requiring Sumlin Construction to provide race-neutral reasons for those challenges. The court denied the post-trial motion, and the Moores raise the same issue, along with several others, on appeal.
In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the Supreme Court held that the equal protection clause of the Fourteenth Amendment barred the State, in a criminal case, from using its peremptory challenges to discriminatorily strike members of the jury venire solely because those members were of the same cognizable racial group as the defendant. 476 U.S. at 85-88, 106 S. Ct. at 1716-1719. The Court held that if the defendant made a prima facie showing that the State engaged in purposeful discrimination during the jury selection process, the State must come forward with race-neutral explanations for its challenges. 476 U.S. at 97, 106 S. Ct. at 1723.
In Fludd v. Dykes, 863 F.2d 822, reh'g denied, 873 F.2d 300 (11th Cir.1989), cert. denied, ___ U.S. ___, 110 S. Ct. 201, 107 L. Ed. 2d 154 (1989), the Eleventh Circuit Court of Appeals held that the Batson principle applied to civil cases. 863 F.2d at 829.[2] In Thomas v. Diversified Contractors, Inc., 551 So. 2d 343 (Ala.1989), this Court adopted both the reasoning and the result in Fludd, supra, and held that the Batson principle was applicable in both criminal and civil cases. 551 So. 2d at 345. In Thomas the defendant was black, and the plaintiff used its peremptory challenges to strike all four black persons on the jury venire. The defendant's timely objection was not ruled on by the trial court. In his motion for new trial, the defendant reasserted his challenge to the plaintiff's use of its peremptory challenges, but the trial judge held that Batson did not apply to civil cases and denied the motion. 551 So. 2d at 344-45. This Court reversed, holding that Batson did apply, and remanded that cause for an evidentiary hearing to allow the trial court to determine if the striking of the four black persons on the jury venire made out a prima facie case of purposeful discrimination, stating:
551 So. 2d at 346.
The facts in this case require this Court to take essentially the same action taken in Thomas, supra. Following a timely objection to Sumlin Construction's peremptory challenges, the trial judge, apparently *575 holding that Batson did not apply to civil cases, overruled the objection and empaneled the jury.[3] In their motion for new trial, the Moores reasserted their objection to those challenges, but that motion was denied. Because the trial court erred by not requiring Sumlin Construction to offer race-neutral reasons for its challenges, this cause is due to be remanded for an evidentiary hearing pursuant to the procedure set out for such hearings in Thomas, supra. However, unlike the procedure followed in Thomas, this Court will not reverse the judgment of the trial court at this point. Such a reversal would render meaningless the trial judge's decision as to whether a new trial is warranted. Instead, this case, and all future appeals of civil judgments requiring similar treatment, will simply be remanded for an evidentiary hearing, as is the current practice in criminal cases. See Ex parte Branch, 526 So. 2d 609 (Ala.1987); Ex parte Jackson, 516 So. 2d 768 (Ala.1986). The other issues raised by Moore in his appeal will be held in abeyance, to be reviewed by this Court if the trial court determines that a new trial is not needed and if this Court affirms such a determination.
The Moores argue that Sumlin Construction's use of its peremptory challenges was such "blatant and callous racial discrimination" that a new trial is mandated without a prior evidentiary hearing, as justice, they argue, would not be served by simply remanding this case. We do not agree. The holdings in Batson, supra; Fludd, supra; Thomas, supra; Branch, supra; and Jackson, supra, consistently recognized that the trial court is in the best position to determine if the appellant has made a prima facie showing of purposeful discrimination, and if so, whether the appellee's race-neutral reasons for its challenges adequately rebut the presumption created by that showing. Batson, 476 U.S. at 100, 106 S. Ct. at 1725; Fludd, 863 F.2d at 829; Thomas, 551 So. 2d at 346; Branch, 526 So. 2d at 624; and Jackson, 516 So. 2d at 772-73. In addition, ordering a new trial, without first giving Sumlin Construction an opportunity to explain its challenges, would be inconsistent with the due process guarantees contained in the Fourteenth Amendment and Article I, § 13 of our state constitution.
For the reasons stated above, this cause is remanded for proceedings consistent with this opinion. Because this appeal is left open during this remand, a copy of the circuit court's order granting or denying a new trial should be forwarded to this Court upon expiration of the time for appeal, if neither party appeals from that order.
REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON, SHORES and HOUSTON, JJ., dissent.
HOUSTON, Justice (dissenting).
I dissent. I dissented in Thomas v. Diversified Contractors, Inc., 551 So. 2d 343, 349-353 (Ala.1989). Judge Gee's dissent in Edmonson v. Leesville Concrete Co., 860 F.2d 1308 (5th Cir.1988), which I quoted with approval in my dissent, was adopted by a majority of the Court of Appeals for the Fifth Circuit when Edmonson was reheard en banc. Edmonson v. Leesville Concrete Co., 895 F.2d 218 (5th Cir.1990). Therefore, I am now even more confident that my dissent in Thomas v. Diversified Contractors, Inc. was correct.
MADDOX and ALMON, JJ., concur.
[1] From the record it appears that the one black person on the jury venire that was not challenged by Sumlin Construction served on the petit jury.
[2] Although the appellant's discrimination argument in Fludd was based on the Fifth Amendment, the analysis in that case is applicable in this case because the equal protection analysis under the Fifth Amendment and the analysis under the Fourteenth Amendment are the same. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
[3] This Court's opinion in Thomas, supra, had not been released at the time of the trial in this case. However, Fludd, supra, had been released two months earlier and was brought to the trial judge's attention. | June 29, 1990 |
0b6dd138-bb56-432b-9f07-59d11ffa1572 | Landers v. O'Neal Steel, Inc. | 564 So. 2d 925 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 925 (1990)
Ray LANDERS, as administrator of the estate of Gregory Glenn Landers, deceased
v.
O'NEAL STEEL, INC., et al.
88-971.
Supreme Court of Alabama.
June 22, 1990.
Ray O. Noojin, Jr. of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
R. Stan Morris of Harris, Evans & Downs, Birmingham, for appellees.
George Cocoris, Gen. Counsel, and Craig A. Donley, Asst. Gen. Counsel, Dept. of Indus. Relations, for the Atty. Gen.
ALMON, Justice.
This appeal is from a summary judgment for the defendants in a wrongful death action against the decedent's employer and five of his co-employees. Gregory Glenn Landers ("Greg") was killed when a mechanized drum in which he was working started turning. Greg's father, Ray Landers ("Landers"), brought this action as administrator and personal representative of Greg's estate. The evidence indicated that an electrical short caused the drum to start, but Landers argues that "willful conduct," as defined in Ala.Code 1975, § 25-5-11(c), by the five co-employee defendants, or some of them, proximately caused Greg's death. Landers also argues that the failure of the Alabama Workmen's Compensation Act to provide a remedy for the death of an employee with no dependents, such as Greg, is unconstitutional under § 13 of the Alabama Constitution and *926 the equal protection clause of the 14th Amendment to the United States Constitution, and that, thus, there should be no bar to his action against his employer.
Landers contends that the application of the exclusive remedy provisions of the Workmen's Compensation Act, Ala. Code 1975, §§ 25-5-52 and -53, to his action against his employer, O'Neal Steel, Inc., is unconstitutional. He points out that the only compensation available to the estate of an employee with no dependents is $1000 in burial expenses, see § 25-5-67, whereas, if an employee is only injured or dies leaving dependents, far more compensation is available. The defendants answer that Landers did not raise this issue at trial and did not serve the attorney general with notice, pursuant to Ala.Code 1975, § 6-6-227, that he was challenging the constitutionality of a state statute.
When O'Neal Steel and the co-employee defendants supported their motions for summary judgment with prima facie showings that they were protected by the exclusive remedy provisions of the Workmen's Compensation Act and were entitled to a judgment as a matter of law, the burden shifted to Landers to rebut those showings. Horner v. First Nat'l Bank of Mobile, 473 So. 2d 1025 (Ala.1985). At that stage, it became incumbent upon Landers to raise the argument he now asserts. Because he did not do so, the trial court was not presented with any basis on which to deny O'Neal Steel's motion for summary judgment. Therefore, the court did not err in entering the summary judgment for O'Neal Steel. This Court will not review an issue raised for the first time on appeal. Kemp Motor Sales, Inc. v. Lawrenz, 505 So. 2d 377 (Ala.1987); Green v. Taylor, 437 So. 2d 1259 (Ala.1983).
Furthermore, Landers did not serve the attorney general with notice of his challenge to the constitutionality of the exclusivity provision as applied to his action. Landers argues that § 6-6-227 applies only to declaratory judgment actions, but that contention has been answered in cases such as Fairhope Single Tax Corp. v. Rezner, 527 So. 2d 1232 (Ala.1987); Wallace v. State, 507 So. 2d 466 (Ala.1987); and Barger v. Barger, 410 So. 2d 17 (Ala.1982). After the defendants raised this defense in their appellees' brief, Landers notified the attorney general of the constitutional challenge and served copies of the briefs on the attorney general. The attorney general has filed a motion to strike the constitutional challenge. That motion is due to be granted.
Resolution of the claims against the co-employees requires that we set forth the facts regarding the machine in which Greg was killed. O'Neal Steel designed and constructed the machine for use in its plant. The drum was five feet long and three feet in diameter. It was mounted horizontally and was used for polishing fabricated steel pieces. As the drum turned, rough pieces of slag would be knocked off the steel pieces as they tumbled against each other; the machine was called the "deslagger." The steel pieces were put into and removed from the drum by hand through a door midway along the side of the drum.
The entire drum mechanism was covered by a wooden sound insulating box seven and one-half feet long and five feet high. There were two doors in the box, one on the side for access to the loading door and the other on the end for access to the motor and drive mechanism at one end of the drum. Safety switches were installed in the openings of both of these doors to prevent the motor from operating with either door open. The safety switch on the end door had been taped down, however, so as to allow access to the motor and drive chain while they were in operation. On the outside of the box there was an on/off switch and a timer, both of which had to be engaged for the drum to turn.
The evidence presented on the summary judgment motions indicated that the doorway of the drum was accessible through the door in the box only if the drum stopped rotating with the two doors aligned. Thus, if the drum stopped in any other position, it was necessary to restart it briefly to align the doors. Landers insists that the design of the deslagger was defective because the alignment process could be *927 accomplished only by pressing the safety switch with the door open and watching until the drum door turned into position. He asserts that this design amounts to "willful conduct" within the meaning of § 25-5-11(c), as we shall discuss below. The defendants counter with an argument that the operator did not have to bypass the safety switch, but could simply close the door in the box, engage the drum briefly, open the door to see if the drum door was aligned, and repeat the process until the drum stopped in the right position.
Greg was not killed while trying to align the doors, however. In fact, he had almost finished unloading the drum. To reach the last few pieces of steel, it was necessary for him to extend his head and shoulders into the drum until he could reach the ends. While he was thus inside the drum, it started turning and crushed him. An inspector with the Occupational Safety and Health Administration examined the site to determine the cause of the accident and concluded that a wire had rubbed against the drum until its insulation was worn away and that, at the moment of Greg's accident, it had created a short circuit and engaged the motor. Expert testimony offered by Landers also tended to establish these facts.
Other employees of O'Neal Steel gave depositions or affidavits indicating that the drum would sometimes operate by pressing the safety switch even if the timer was at zero and the on/off switch was off. There was even evidence that the machine occasionally started and ran briefly with no one around it. One employee stated that he had reported that fact to a foreman, not one of the defendants, but that the foreman had done nothing. That evidence was consistent with the conclusions of the experts that the drum started because of a short circuit in the frayed wiring.
Actions against coemployees for injuries or death in circumstances covered by the Workmen's Compensation Act may be brought "only for willful conduct which results in or proximately causes the injury or death." § 25-5-11(a); see also § 25-5-11(b). Section 25-5-11(c) provides, in pertinent part:
Landers argues first that the design of the drum, including the necessity of turning it with the door open, rendered the machine so dangerous that the definition of "willful conduct" in (c)(1) is satisfied. He cites the test announced in Reed v. Brunson, 527 So. 2d 102, 120 (Ala.1988), regarding the standard of proof under § 25-5-11(c)(1), in particular the part of the test allowing a showing of "willful conduct" by evidence tending to show "that a reasonable man in the position of the defendant would have known that a particular result (i.e., injury or death) was substantially certain to follow from his actions." The evidence submitted in this case would support at most a finding of wantonness, however, and recovery for wantonness is not permitted under either the specific language of § 25-5-11(c)(1) or the test set forth in Reed v. Brunson. The full quotation from which the extract above was taken reads:
Id. (emphasis in original).
The evidence that the wiring was not installed properly so as to prevent its coming into contact with the drum, fraying, and causing a short circuit, is certainly evidence of negligence and possibly of wantonness, but it is not evidence of a purpose, intent, or design to injure any person. Similarly, the evidence tending to show that the machine had started because of the short circuit on some occasions before it caused Greg's death is not sufficient to show such a purpose, intent, or design. There is no evidence that any of the five co-employee defendants were even informed of those occasions, much less any evidence that their failure to discover the frayed wire and have it repaired and made safe amounted to "willful conduct" within the meaning of § 25-5-11(c)(1).
Landers also argues that the taping shut of the safety switch on the end door, and possibly also the designed-in necessity of opening the side door and using its safety switch to align the drum, amount to a removal of a safety device so as to constitute "willful conduct" within the meaning of § 25-5-11(c)(2). Even if those assertions were accepted as true, they could not provide a ground for reversal, because the safety switches were not the proximate cause of the accident. See Reed v. Brunson, supra; cf. Bailey v. Hogg, 547 So. 2d 498 (Ala.1989). There is no evidence that the machine started because the switch in the side door was pushed, and there is substantial evidence to the contrary. A co-worker of Greg's was close by when the drum started, and he stated that no one touched the safety switch. There was conflicting evidence as to whether the end door was open or closed. If it was closed, the taping of its safety switch made no difference. Even if it was open, the taping of the switch could not have been the proximate cause of the accident. For one thing, Greg could not have been relying on the open end door to prevent the machine from starting; the open side door, through which he was working, should have done that. Moreover, the evidence indicates that the short circuit would have bypassed the end door's safety switch even if it had not been taped, because the short circuit bypassed the side door's safety switch, the on/off switch, and the timer. The failure to design the electrical system to prevent such a short circuit cannot, under the circumstances, amount to "willful conduct."
In short, the evidence submitted on the summary judgment motion establishes as a matter of law that Greg's death was not caused by any "willful conduct" within the meaning of § 25-5-11(c). Thus, under the clear terms of the statute, this action against Greg's co-employees is barred. As we explained above, the constitutional challenges to the bar prohibiting an action against Greg's employer, O'Neal Steel, were not preserved for review. The attorney general's motion to strike the constitutional challenges is granted. The judgment is affirmed.
MOTION GRANTED; AFFIRMED.
All of the Justices concur. | June 22, 1990 |
a97fce82-f692-42ba-aee4-20bfc141df7e | Ex Parte Ben-Acadia, Ltd. | 566 So. 2d 486 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 486 (1990)
Ex parte BEN-ACADIA, LTD.
(Re BEN-ACADIA, LTD., et al. v. BENETTON S.p.A., an Italian corporation, et al.)
89-938.
Supreme Court of Alabama.
July 13, 1990.
*487 N. Lee Cooper, Tony G. Miller, Mark Strength and Jeffrey M. Grantham of Maynard, Cooper, Frierson & Gale, Birmingham, for petitioner.
Warren B. Lightfoot, Jere F. White, Jr. and Michael L. Bell of Lightfoot, Franklin, White & Lucas, Birmingham, and Michael L. Edwards and Jonathan S. Harbuck of Balch & Bingham, Birmingham, for respondent.
HOUSTON, Justice.
Ben-Acadia, Ltd. ("Ben-Acadia"), a Louisiana corporation engaging exclusively in the retail sale of the Benetton line of merchandise, with its principal place of business in Lafayette, Louisiana, and two Alabama retailers, Benedot, Inc., and Al-Ben, Inc., filed suit in Jefferson County Circuit Court against Benetton S.p.A., an Italian corporation doing business in Jefferson County; Gilberto Casagrande, an Italian citizen temporarily residing in Louisiana; Dixieben, Inc., a Louisiana corporation headed by Casagrande, acting as a sales representative for Benetton S.p.A. in Jefferson County, with its principal place of business in New Orleans, Louisiana; and a number of companies alleged to be subsidiaries of Benetton, S.p.A., all of which are also alleged to be either Italian companies doing business in Jefferson County or corporations organized under the laws of other states, doing business in Jefferson County. The plaintiffs alleged fraud, breach of contract, breach of fiduciary duties, defamation, and conspiracy.[1] Arguing that *488 Louisiana would be a more appropriate forum in which to try Ben-Acadia's suit, the defendants moved to dismiss Ben-Acadia under the doctrine of forum non conveniens, Ala.Code 1975, § 6-5-430. The trial judge, the Honorable Charles R. Crowder, granted that motion. Ben-Acadia then filed this petition for a writ of mandamus directing the trial judge to reinstate it as a plaintiff in the suit. For the following reasons, the writ is denied.
Mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court. In cases involving the exercise of discretion by a lower court, a writ of mandamus may issue to compel the exercise of that discretion; however, it may not issue to control the exercise of discretion except in a case of abuse. Ex parte Auto-Owners Ins. Co., 548 So. 2d 1029 (Ala.1989).
Essentially, the doctrine of forum non conveniens allows a court that has jurisdiction and that is located where venue is proper to refuse to exercise its jurisdiction when, for the convenience of the parties and witnesses, and in the interests of justice and judicial economy, the case could be more appropriately tried in another forum. The prevailing question of whether a case should be entertained or dismissed depends upon the facts of the particular case and is addressed to the sound discretion of the trial judge. In determining whether to exercise or decline to exercise jurisdiction, the trial judge should consider the location where the acts giving rise to the action occurred, the relative ease of access to sources of proof, the location of the evidence, the availability of compulsory process for the attendance of unwilling witnesses, the cost of obtaining the attendance of willing witnesses, the possibility of a view of the premises, if a view would be appropriate to the action, and any other matter in order to assess the degree of actual difficulty and hardship that would result to the defendant in litigating the case in the forum chosen by the plaintiff. If, with an eye toward the goal of achieving a fair trial and after weighing all of the pertinent factors, the judge finds that the balance is strongly in favor of the defendant, he may decline to exercise jurisdiction and dismiss the complaint. Ex parte Southern Ry., 556 So. 2d 1082 (Ala.1989); Ex parte Auto-Owners Ins. Co., supra.
As previously noted, Ben-Acadia is a Louisiana corporation, with its principal place of business in Lafayette, Louisiana. None of the communications and transactions that form the basis of its suit occurred in Alabama. The individual with whom Ben-Acadia primarily dealt, Gilberto Casagrande, is an Italian citizen temporarily residing in Louisiana and is president of Dixieben, a Louisiana corporation with its principal place of business in New Orleans, Louisiana. Casagrande dealt with Ben-Acadia in Louisiana. Although this case is apparently still in the early stages of discovery, it appears to us that none of the witnesses that might testify on behalf of the defendants resides in Alabama. Consequently, compulsory process for the attendance of any unwilling witnesses residing in Louisiana would not be available to the defendants if the case is tried in Jefferson County, Alabama. Rule 45, A.R.Civ.P. Likewise, the cost of obtaining the attendance of any willing witnesses who reside in Louisiana would be greater if the case is *489 tried in Jefferson County than if it is tried in Louisiana. It also appears to us that any physical evidence that would be material to the defense is located in Louisiana, either in Lafayette or New Orleans (e.g., the corporate records of Ben-Acadia and Dixieben, samples of merchandise sold to Ben-Acadia, etc.). Furthermore, the record indicates that the trial judge was concerned that the application of both Alabama and Louisiana law in the same trial might create confusion in the minds of the jurors. Finally, although it is not clear, the record indicates that there are two lawsuits pending in Louisiana's courts, one in a state court and one in a federal district court, in which Ben-Acadia made the same or similar allegations against the defendants that it has made in Jefferson County. After examining and weighing the factors enunciated in Ex parte Southern Ry., supra, and Ex parte Auto-Owners Ins. Co., supra, we cannot say that the trial judge abused his discretion in ruling that the interests of justice and judicial economy would be better served if Ben-Acadia proceeded against the defendants in a Louisiana court. Accordingly, a writ of mandamus cannot issue. Ex parte Auto-Owners Ins. Co., supra.
WRIT DENIED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The plaintiffs' theories of recovery are best summarized by the following portion of their brief:
"[Casagrande was] responsible for promoting Benetton products in the Southeastern United States, convincing and encouraging individuals and companies to become Benetton operators and franchisees, opening Benetton retail outlets, assisting in the opening and operation of retail outlets, and supervising the operations of retail outlets.
"The Benetton Defendants and Casagrande entered into verbal contracts with plaintiffs providing that (1) plaintiffs would invest significant capital, personal effort, and time in constructing a `Benetton style' of decor in their retail outlets and in operating their outlets according to the `Benetton style' and (2) plaintiffs would sell only products ordered from the Benetton Defendants through Casagrande. In return, the Benetton Defendants and Casagrande agreed to sell merchandise to plaintiffs, assist plaintiffs in the selection and marketing of merchandise, to promptly ship merchandise ordered by plaintiffs, and to assist plaintiffs in the opening, decoration and operation of their outlets.
"In reliance upon representations made by Casagrande relating to, among other things, levels of sales operated by retail outlets, the expertise of Casagrande/Dixieben in opening and operating retail outlets, the successfulness of the `Benetton style' of operations, profits generated by retail outlets, and the assistance that would be provided to plaintiffs, plaintiffs opened retail outlets and made investments. The representations were false and were known to be false by the Benetton Defendants and Casagrande at the time they were made and were made with the intent to deceive and mislead the plaintiffs.
"From the inception of the store openings, including Ben-Acadia's retail outlet located in Lafayette, Louisiana, Casagrande, in large part, controlled the merchandise ordered by the plaintiffs, the selling price of the merchandise, the timing and amount [of] any allowed merchandise discounts, and the general management and operation of plaintiffs' stores. Shipments of merchandise received by the plaintiffs consistently were late, composed of outdated, unordered, or damaged merchandise, had the wrong merchandise mix, and were substantially in excess of the amounts of inventory actually ordered. Only approximately 40% of what was ordered by the plaintiffs was ever actually received, plaintiffs routinely received the merchandise after the prime selling season, and the plaintiffs' business operations were damaged in that sales and income were greatly reduced. The Benetton Defendants refused to allow Ben-Acadia and the other plaintiffs to return the merchandise.
[Footnote 1 continued on page 488].
"The conduct of the Benetton Defendants and Casagrande was part of a scheme and conspiracy to defraud the plaintiffs, to use plaintiffs' outlets as a dumping ground for damaged and out-of-date merchandise, and to use plaintiffs' resources to establish a market in the Southeast for Benetton products. In addition, Casagrande, as the agent of the Benetton Defendants, made false and defamatory statements concerning the plaintiffs' business abilities and business ethics to various people with whom plaintiffs had business relationships. Further, Casagrande opened a store that directly competed with Ben-Acadia's retail outlet while `holding up' shipments of merchandise to Ben-Acadia."
Although each of the plaintiffs made the same allegations against the defendants, there appears to be no connection between the plaintiffs other than their joining to bring this suit. | July 13, 1990 |
6b639c99-47e8-4a10-a61b-b669a5a2eb05 | Coleman v. Coleman | 566 So. 2d 482 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 482 (1990)
Susan Frasa COLEMAN
v.
Stephen Lanier COLEMAN.
89-521.
Supreme Court of Alabama.
July 6, 1990.
Robert M. Echols, Jr., Birmingham, for appellant.
L. Drew Redden and Gerald L. Miller of Redden, Mills & Clark, Birmingham, for appellee.
PER CURIAM.
Susan Frasa Coleman appeals from a summary judgment in favor of her former husband, Stephen L. Coleman. Ms. Coleman alleged that Dr. Coleman had negligently or wantonly infected her with a venereal disease during the course of their marriage. We affirm.
Susan Frasa Coleman and Stephen L. Coleman were married in 1971. On October 17, 1985, Dr. Coleman filed a complaint for divorce in the Circuit Court of Jefferson County, Alabama. Ms. Coleman filed an answer and counterclaim seeking a divorce on the ground of adultery. Dr. Coleman filed an answer to the counterclaim, admitting the acts of adultery but setting forth the defense of condonation.
On the day the case was set for trial, March 20, 1986, the parties entered into a settlement agreement, which was later incorporated into the final divorce judgment. The settlement agreement provided for, among other things, support of the parties' *483 two minor children and alimony for Ms. Coleman. The agreement also stated:
After the final judgment of divorce was entered, on September 2, 1986, Susan Coleman filed this tort action, seeking damages for the alleged negligent or wanton transmission of a venereal disease, condylomata acuminatum, to her by her former husband. Dr. Coleman in his answer pleaded the affirmative defenses of estoppel, res judicata, release, and failure to file a compulsory counterclaim in the divorce action.
Dr. Coleman then moved for summary judgment based on the affirmative defenses in his answer, and he supported the motion by affidavit testimony, deposition testimony, the pleadings, his testimony from the prior divorce action, and the divorce judgment. Dr. Coleman subsequently filed a supplemental brief and in support of his motion attached copies of two letters between the parties' lawyers in the prior divorce case.
In further support of his motion, Dr. Coleman also attached subpoenas for records from five of his physicians that his former wife had requested in the divorce action. In particular, Ms. Coleman subpoenaed for trial Richard Holmes, of the Jefferson County Health Department's sexually transmitted disease program, and the following records: "Copies of any and all records and reports submitted in connection with the recording of a test for sexually transmitted disease on an individual namely: Stephen Coleman."
Ms. Coleman submitted two affidavits in opposition to Dr. Coleman's summary judgment motion: her own affidavit and an unsigned affidavit from her physician. She stated that she had not had sexual relations with any person other than Dr. Coleman. Ms. Coleman's physician stated that she had contracted a sexually transmitted disease and was receiving treatment for it. In a supplemental affidavit she stated that she had never raised the issue of transmission of the disease in the divorce action, and that she was not awarded any damages, expenses, or funds for treatment of the disease.
The trial court granted Dr. Coleman's motion for summary judgment. The trial court's well-reasoned opinion stated, in part:
*484 "The opinion in the case of Weil v. Lammon, 503 So. 2d 830 (Ala.1987), states:
This Court has recently held that a cause of action for the tortious transmission of a sexually transmitted diseasegenital herpesexists under the law of Alabama. See Berner v. Caldwell, 543 So. 2d 686 (Ala. 1989). We also noted in Berner that while that case dealt with liability for the transmission of genital herpes, liability could also be imposed for the transmission of other sexually transmitted diseases. In Berner the parties were two single adults; but in this case we are faced with a situation where a wife alleges that her former husband infected her with a sexually transmitted disease during the course of their marriage.
The present state of the law in Alabama concerning the issue of whether a wife is barred from bringing a tort action against her former husband for acts that occurred during their marriage is gleaned from a well-established line of cases. See Ex parte Harrington, 450 So. 2d 99 (Ala. 1984); Jackson v. Hall, 460 So. 2d 1290 (Ala. 1984); Weil v. Lammon, 503 So. 2d 830 (Ala.1987); and Smith v. Smith, 530 So. 2d 1389 (Ala.1988).
In Ex parte Harrington, 450 So. 2d 99 (Ala. 1984), we permitted a wife to file a tort action for assault and battery in one county, even though she had filed a divorce complaint in another county. In her tort action she alleged the same operative facts concerning the violence perpetrated on her by her former husband that she had alleged in her divorce action. The tort action was filed before a final judgment was entered in the divorce case, there was no settlement agreement of the parties in the case, and the issue of assault and battery had not been completely litigated.
In Jackson v. Hall, 460 So. 2d 1290 (Ala. 1984), we did not allow a wife to pursue a tort action for assault and battery against her former husband. Prior to filing her tort action, she had entered into a settlement agreement in the divorce action in full and final settlement of "all property matters and other matters between the parties." In Jackson, we said:
460 So. 2d at 1292 (citations omitted).
In Weil v. Lammon, 503 So. 2d 830 (Ala. 1987), we did not allow a wife to pursue a tort action for fraud and misrepresentation against her former husband. We noted that the wife had asserted the alleged fraud and misrepresentation in support of her claim for alimony, and we held that the wife was barred by reason of the principle of res judicata. We expressly noted that Weil did not overrule Ex parte Harrington, but left open a field of operation where there had not been a settlement of all claims by the parties, or a claim fully litigated in a divorce case that had proceeded to a final judgment.
Finally, in Smith v. Smith, 530 So. 2d 1389 (Ala.1988), we did not allow a wife to pursue a tort action for assault and battery against her former husband. The tort action was filed before a final judgment in the divorce case was entered. However, the parties had entered into extensive settlement negotiations, and the trial judge was aware of the fact that the former husband was attempting to provide for his former wife's medical expenses. In light of the circumstances of the case, we held that the former wife was estopped from relitigating matters that were settled in the divorce action. 530 So. 2d at 1391.
Those cases, read together, do not establish a general rule that a divorce action routinely precludes a former spouse from suing the other in tort based upon acts that occurred during the marriage. Rather, each case must be examined on its own facts and circumstances.
We have reviewed the record. A fair reading of the record reveals that Ms. Coleman was aware in September 1985 that she was infected with a sexually transmitted diseasebefore the divorce action was filed by Dr. Coleman on October 17, 1985. In preparation for the trial of her divorce action, she conducted medical discovery relating to whether Dr. Coleman had a venereal disease. Dr. Coleman testified in the divorce action: "[M]y Wife stated to me that she had a venereal disease. I have never had any venereal disease, either during my marriage to my wife or at any other time." Most importantly, there were also indications in correspondence between their attorneys that Ms. Coleman attempted to use the fact that she was infected with a venereal disease to increase her settlement award.
We agree with the trial court that to allow Ms. Coleman to use the fact that she may have been infected with a venereal disease by her husband as leverage in her divorce settlement, and then to permit her to bring a subsequent tort action, would seriously undermine the settlement of divorce actions in the future. To do so would, in the trial court's words "cause confusion and lead to fraud, potential ambush, [and] a play on words within the settlement."
In a divorce action the trial judge does not award damages compensating a party for injuries suffered during the course of the marriage. However, the trial judge can consider the conduct of the parties during the marriage when awarding alimony and dividing the marital property. Ala.Code 1975, § 30-5-52; Steiner v. Steiner, 254 Ala. 260, 48 So. 2d 184 (1950).
We would also recognize, as the trial court properly did, that in situations such as this, a spouse is faced with several avenues of properly preserving a claim for damages: First, if the spouse does not intend a release of all known claims, he or she could expressly reserve a tort claim from the settlement and then subsequently sue in tort. Second, the divorce defendant could counterclaim with a demand for damages based upon any tort claims or the spouse plaintiff could also include a tort claim in the divorce case.[1] Because trial by *486 jury is not provided for in divorce actions in Alabama, the trial court could sever the claim for damages and set the severed case for a jury trial. Rule 21, A.R.Civ.P.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] See Maharam v. Maharam, 123 A.D.2d 165, 510 N.Y.S.2d 104 (1986). In that case, Ms. Maharam sued her husband for divorce and included a tort claim for compensatory and punitive damages, alleging that her husband had infected her with genital herpes. After ordering a divorce on the grounds of adultery, the trial judge severed and reserved for trial the tort cause of action. | July 6, 1990 |
0a38f162-cec4-4403-b872-4695bbb8780d | Allstate Ins. Co. v. Alfa Mut. Ins. Co. | 565 So. 2d 179 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 179 (1990)
ALLSTATE INSURANCE COMPANY
v.
ALFA MUTUAL INSURANCE COMPANY.
89-379.
Supreme Court of Alabama.
June 8, 1990.
George C. Douglas, Jr. of Gaines, Gaines & Gaines, Talladega, for appellant.
B. Clark Carpenter and Craig S. Dillard of Wooten, Thornton, Carpenter, O'Brien and Lazenby, Talladega, for appellee.
HORNSBY, Chief Justice.
This is an insurance stacking case. The plaintiff, Goldie Jamison, was a passenger in a 1983 Buick Regal automobile owned by her son, Graham Jamison. This vehicle was involved in an accident in Calhoun County with an uninsured motor vehicle while being operated by the plaintiff's granddaughter, Carol Jamison. The facts *180 in this case were stipulated by the parties and are set forth below.
At the time of the accident, Graham Jamison had two separate insurance policies in effect with Alfa Mutual Insurance Company (Alfa) insuring motor vehicles that he owned. One policy covered only the 1983 Buick Regal, and the other policy covered only a 1974 Ford F-100 pickup truck. Both policies contained provisions for uninsured motorist benefits of $20,000 per person and $40,000 per accident. Goldie Jamison was not a resident of her son's household, nor was she a named insured under either Alfa policy at the time of the accident, nor was she riding in the truck; therefore, she was not covered under the policy relating to the truck. Goldie had not contributed in any way to the payment of premiums on the Alfa policies.
Goldie Jamison was a named insured under another automobile liability insurance policy with Allstate Insurance Company. That policy covered a 1967 Chevrolet automobile. The Allstate policy provided uninsured motorist benefits up to a limit of $20,000 per person and $40,000 per accident.
Alfa paid Goldie the sum of $20,000, reflecting the limits for uninsured motorist coverage in the policy insuring the 1983 Buick in which she was riding at the time of the accident. Goldie has released Alfa for any amounts due her under that policy. After Alfa paid Goldie the $20,000, she made a demand upon Allstate under her own policy for uninsured motorist benefits up to $40,000. We note that the parties have stipulated that the amount Goldie is entitled to recover as damages from the owners or operators of the uninsured motor vehicle involved in the accident is exactly $40,000 and no more.
Goldie filed an action in the Circuit Court of Calhoun County against Allstate for uninsured motorist benefits. Allstate then filed a third-party complaint against Alfa, contending that Goldie was entitled to uninsured motorist benefits from Alfa under the policy covering the 1974 Ford F-100 pickup truck. Allstate contends that Goldie was required to recover the benefits from the Ford policy before she could collect any benefits from her own Allstate policy.
In order to avoid needless delay to Goldie from the determination of which insurer was to pay the additional $20,000 in benefits, Allstate paid that amount to Goldie. Goldie has released Allstate and Alfa and Graham Jamison from all claims. Alfa and Allstate have reserved all rights of subrogation that they may have against the uninsured motorist. Goldie also assigned to Allstate any demands that she may have against Alfa, and Allstate contends that even though it paid Goldie the $20,000 it is not the entity from which the $20,000 in uninsured motorist benefits were due.
The trial court dismissed with prejudice the claim of Goldie Jamison against Allstate and realigned the parties, with Allstate as plaintiff and Alfa as defendant. Both parties then filed motions for summary judgment, and a hearing was held on these motions. The trial court entered a summary judgment for Alfa and denied Allstate's motion. The court noted that Goldie, as a passenger in a vehicle insured by one policy issued by Alfa, had been paid the benefits under that policy and held that she was not entitled to stack the uninsured motorist coverage of a separate policy of insurance that covered a separate and distinct vehicle, insured by Alfa but not involved in the accident. The court further held that Goldie was entitled to recover the additional $20,000 from Allstate under the uninsured motorist provisions of her own policy. Allstate appeals.
(1) Whether Ala.Code 1975, § 32-7-23(c), allows a passenger to stack uninsured motorist benefits from two separate policies of insurance issued by the same insurer, when she was injured while riding in a vehicle covered by only one of the policies.
(2) Whether Ala.Code 1975, § 32-7-23(c), is unconstitutional in its application to the instant facts.
(3) Whether Goldie Jamison was an insured under the terms of both policies of insurance issued by Alfa.
This Court has issued several decisions regarding the stacking of uninsured motorist benefits in various factual situations. We specifically stated in Travelers Ins. Co. v. Jones, 529 So. 2d 234 (Ala.1988), "We express no opinion on whether a passenger in a car that is covered by one policy can stack another coverage included in a separate policy" (emphasis original). The issue of the stacking of separate policies was most recently addressed in State Farm Mut. Auto. Ins. Co. v. Faught, 558 So. 2d 921 (Ala.1990), and it has again been raised for our review.
Ala.Code 1975, § 32-7-23(c), states:
We determined in Travelers Ins. Co., supra, that when passengers are insured under one policy of insurance covering the vehicle in which they were riding, they may stack additional coverages of that one policy under the language of § 32-7-23(c). In that case, the passengers were insured under the terms of the uninsured motorist provisions of the policy and were allowed to stack the additional coverages within that one policy up to the limitations provided in the statute.
In State Farm Mut. Auto. Ins. Co. v. Fox, 541 So. 2d 1070 (Ala.1989), Fox's daughter, a member of Fox's household, was killed while riding as a passenger in a vehicle involved in a single-vehicle accident. This Court determined that the limitations as to the number of coverages to be stacked applied only when there was one policy covering multiple vehicles. Thus, Fox was not limited by the statute to only three coverages, when there were five separate policies of insurance, but could stack enough policies to cover the amount of the judgment.
As stated above, we have determined most recently in State Farm Mut. Auto. Ins. Co. v. Faught, 558 So. 2d 921 (Ala. 1990), the issue whether a passenger in another person's insured vehicle could stack uninsured motorist (hereinafter "UM") coverages of separate single-vehicle insurance policies on vehicles not owned or occupied by the passenger at the time of the injury. We determined in Faught that because the automobiles were covered by separate policies of insurance, and the passenger was not a named insured under the terms of the policies covering either vehicle, the trial court erred in allowing the passenger to stack the coverages.
There are two separate Alfa policies of insurance here covering two separate vehicles. The parties have stipulated that the passenger, Goldie Jamison, was covered by the terms of the policy of the vehicle in which she was riding. She has been paid the UM benefits under that policy. Under Faught, supra, she cannot stack the UM benefits on the other Alfa policy covering the Ford pickup truck.
Allstate contends that Goldie was denied stacking only because Alfa chose to issue separate policies on each vehicle and because she was not a resident of her son's household. It claims that the amount of UM benefits available to Goldie or to any other person injured by an uninsured motorist should not depend on whether the insurer issues a single-vehicle or a multiplevehicle policy or whether the injured person is a resident of the insured's household. We disagree. This Court has abolished the distinction between first and second class insureds for stacking purposes in cases involving multiple-vehicle policies of insurance, as opposed to separate single-vehicle policies. See Travelers Ins. Co., supra.
As in Faught, the injured passenger here was not a named insured under the policy covering the vehicle in which she was injured, nor was she a resident of the named insured's household. We agree with the trial court that under the terms of the policy the coverages under the two separate Alfa policies cannot be stacked when the injured person is not a named insured *182 and is not a resident of the owner's household.
Allstate contends that it is unconstitutional to deny stacking of uninsured motorist coverages to an injured passenger who does not happen to be a resident of the named insured's household when the insurer has issued separate policies to the named insured, when stacking of those coverages would be allowed for such a passenger if the insurer had covered all of the named insured's vehicles under the same policy. Allstate further contends that to make the stacking limitation depend on whether the insurer chooses to cover several vehicles under one policy or to cover them under separate policies when there is one overall contractual relationship between the insurer and insured is also unconstitutional.
We set out the language of the statute earlier in this opinion. In Fox, supra, this Court essentially addressed the question of whether five single-vehicle policies are any different from one policy covering five vehicles. As was shown in Fox, the language of the statute is clear, that stacking is allowed when there is "any one contract of automobile insurance." When statutory language is unequivocal and unambiguous, it is to be given its plain, clear, and ordinary meaning. Fox, supra, citing Mann v. City of Tallassee, 510 So. 2d 222 (Ala.1987) (further citations omitted). While we did not address the constitutionality of the statute in Fox, we pointed out clearly that the legislature directed its limitation of stacking to a single policy covering multiple vehicles.
Allstate has not provided us with any persuasive argument on this issue. It contends that substance must prevail over form when the same insurer and insured are involved. We disagree. The ability of an insurer to provide its insureds with separate policies of insurance must not be restricted. It may be, as Allstate argues, that there is "nothing inherently good or bad about either the single-vehicle policy form or the multiple-vehicle policy form"; nevertheless, the choice of which to use is a matter to be determined by the insurer and the insured as a part of the contractual relationship.
On the argument presented to us by Allstate, we cannot hold Ala.Code 1975, § 32-7-23(c), unconstitutional.
Allstate also contends that the policy language in both Alfa policies makes Goldie Jamison an "insured" to whom stacking of UM benefits must be provided. Allstate urges this Court to take a literal reading of the Ford F-100 policy, claiming that Goldie is to be considered "any other person ... occupying" Graham Jamison's automobile. Again, we disagree.
The language of the policy defines an "insured" as:
Further, "your automobile" is defined as follows: "Automobile means the private passenger automobile, utility automobile, or trailer described in the declarations...." Goldie Jamison was a passenger occupying the 1983 Buick, which was not described in the declarations page of the policy concerning the Ford F-100. Simply because Goldie Jamison was occupying one of Graham Jamison's automobiles, specifically the 1983 Buick, she cannot be construed to be an insured under the UM provisions of the separate policy issued for the Ford F-100 pickup.
Where there is no ambiguity in the terms of an insurance contract, it is the duty of this Court to apply its terms and enforce the contract as it is written. Upton v. Mississippi Valley Title Ins. Co., 469 So. 2d 548 (Ala.1985); Ranger Ins. Co. v. Hartford Steam Boiler Inspection & Ins. Co., 410 So. 2d 40 (Ala.1982). Further, insurance contracts, like other contracts, are *183 construed to give effect to the intention of the parties to the contract, and when that intention is clear and unambiguous, the policy must be enforced as it is written. State Farm Mut. Auto. Ins. Co. v. Lewis, 514 So. 2d 863 (Ala.1987).
The judgment is due to be affirmed.
AFFIRMED.
SHORES, HOUSTON and KENNEDY, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result).
I concur in the result only. I continue to believe that the "multiple-vehicle or single-vehicle" policy distinction is artificial and nonsensical. See my dissent in State Farm Mut. Auto. Ins. Co. v. Fox, 541 So. 2d 1070 (Ala.1989). | June 8, 1990 |
b47b7383-e3c7-4058-8b14-82d456e5d3a5 | Alabama Cellular Service, Inc. v. Sizemore | 565 So. 2d 199 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 199 (1990)
ALABAMA CELLULAR SERVICE, INC., et al.
v.
James M. SIZEMORE, Jr., as Commissioner of Revenue of the State of Alabama, et al.
89-48.
Supreme Court of Alabama.
June 22, 1990.
*200 Walter R. Byars of Steiner, Crum & Baker, Montgomery, for appellants.
Don Siegelman, Atty. Gen., and Ron Bowden, Acting Chief Counsel, Dept. of Revenue, and Asst. Atty. Gen., for appellees.
SHORES, Justice.
Three providers ("cellular providers") of cellular radio telecommunications services in Alabama[1] filed in the circuit court a complaint for a declaratory judgment and injunctive relief under the Declaratory Judgments Act, Code 1975, §§ 6-6-220 et seq. They sought a declaration as to whether they are "public utilities" and subject to the levy and payment of ad valorem, license, and gross receipts taxes pursuant to statutes applying to public utilities and subject to regulation by the Alabama Public Service Commission ("PSC").[2] The action was commenced on April 6, 1989, against the Commissioner and the Department of Revenue, arising out of threatened attempts to levy and collect these taxes. Appellees, the Commissioner and the Department of Revenue, filed their answer on May 3, 1989. They contend that the cellular providers are public utilities subject to regulation by the PSC and subject to the public utility taxes.
At the time this suit was filed, none of the issues had been the subject of an administrative determination. On August 14, 1989, the PSC ordered that cellular radio and television services would thereafter be regulated by the PSC with respect to charges, classifications, practices, services, and facilities, and that any entity providing, or wishing to provide, such services within the State of Alabama should obtain certification from the Federal Communications Commission and file tariffs governing provision of the said services subject to approval by the PSC within 60 days.[3] The PSC filed a motion to intervene in the *201 present case, together with its answer, on August 17, 1989. The PSC alleged that the appellants are public utilities regulated by, and subject to the regulation of, the PSC as telephone companies.
This is an appeal from a final judgment of the trial court entered September 29, 1989, dismissing the cellular providers' action for declaratory and injunctive relief and holding that Code 1975, § 41-22-11, and Stuart v. Historic Warehouse, Inc., 505 So. 2d 298 (Ala.1986), control this case and require the plaintiffs to exhaust administrative remedies under the Alabama Administrative Procedure Act ("APA"), Code 1975, §§ 41-22-1 thorough -27, before the trial court has jurisdiction to proceed with a declaratory judgment action. Specifically, this would mean that the affected parties, the cellular providers, would be required to seek declaratory relief from the Revenue Department with regard to the taxing statute before proceeding to circuit court, despite the fact that the applicability of the taxing statute must be determined by definitions contained in statutes enforceable by the PSC.
We must determine whether the trial court erred in dismissing this case. In doing so we must revisit our holding in Stuart, as well as the Administrative Procedure Act.
In Stuart v. Historic Warehouse, retail and wholesale beer and wine licensees sought a construction of the Exclusive Sales Territories and Wholesalers Act, Code of 1975, § 28-8-1 et seq., in conjunction with the Alabama Beverage Licensing Code and pertinent regulations of the Alcoholic Beverage Control Board. These licensees brought an action in the circuit court of Montgomery County, for declaratory and injunctive relief, which was dismissed by the trial court on the grounds that they had failed to exhaust administrative remedies. This Court framed the issue as follows: "Stated simply, the issue on appeal is whether a litigant is required to seek a declaratory ruling by a state agency under § 41-22-11, Code of 1975, before he may ask for a declaratory judgment in the circuit court under § 41-22-10, Code of 1975." We wrote:
Id. at 300.
In Stuart we held as follows:
Id. at 302.
This Court distinguished the Stuart holding in Ex parte Cook, 544 So. 2d 167 (Ala. 1989). In Cook, state merit system employees and the Alabama State Employees Association filed a complaint in the circuit court of Montgomery County, against the State Personnel Board ("Board"), pursuant to § 41-22-10, seeking declaratory and injunctive relief from the personnel board's decision to discontinue reallocation procedures. The plaintiffs in Cook claimed that the Board, which is subject to the Alabama Administrative Procedure Act, had effected a change of Board rules by discontinuing the reallocation procedures without following the rulemaking procedures outlined in *202 the APA. We distinguished Cook from Stuart, as follows:
544 So. 2d 167 at 168 (Ala.1989). We held in Cook that the question presented by the suit was clearly contemplated in § 41-22-10 and was properly raised in the circuit court. Id. at 168.
These two cases show the need to clarify the rights and remedies under the Alabama Administrative Procedure Act. In order to do so, it is necessary to set out the history of the APA. The National Conference of Commissioners on Uniform State Laws first adopted a Model State Administrative Procedure Act in 1946; the National Conference followed with the Revised Model State Administrative Procedure Act in 1961. The National Conference later conducted a complete reexamination of the act, which took two years and resulted in their adoption of the Model State Administrative Procedure Act (1981).[4]
The Alabama Administrative Procedure Act was adopted in 1981 as "a minimum procedural code for the operation of all state agencies when they take action affecting the rights and duties of the public." § 41-22-2(a). It was based in part upon the Revised Model State Administrative Procedure Act (1961).
Thus, the APA seeks to make the process of review of state agency actions fairer and more efficient, not to alter the substantive rights of a person affected by a rule. Section 41-22-2(c) provides:
Every state agency having express statutory authority to promulgate rules and regulations is governed by the APA. § 41-22-2(d). However, others, such as the PSC, are exempted by § 41-22-2(e):
With the adoption of the APA, the state agencies affected were given directions as to the rulemaking requirements of the APA as well as to those requirements imposed on them by the statutes creating the agencies. The APA provides in §§ 41-22-10 and -11 for review of a rule of an agency if a controversy exists.
Section 41-22-10 provides for a declaratory judgment or for injunctive relief:
Section 41-22-10 mirrors the wording of the Revised Model State Administrative Procedure Act (1961), which reads as follows in § 7:
Section 41-22-11 provides that a person substantially affected by a rule may petition a state agency that falls under the APA to issue a declaratory ruling "with respect to the validity of a rule or with respect to the applicability to any person, property or state of facts of any rule" that is enforceable by the agency:
Code 1975, § 41-22-11, as amended 1986.
We note that the Tennessee Code is the basis for §§ 41-22-10 and -11. The genesis of § 41-22-10 is Tenn.Code Ann. § 4-5-106 (1979 Replacement); the genesis of § 41-22-11 is Tenn.Code Ann. § 4-5-107 (1979 Replacement). Tennessee statute § 4-5-106 includes this sentence: "A declaratory judgment may not be rendered unless the complainant has first requested the agency to pass upon the validity or applicability of the rule in question." This provision is absent from our APA; the fact that it is absent indicates to us that the Alabama Legislature did not intend to make an agency declaratory ruling a prerequisite to seeking a declaratory judgment in circuit court.
The declaratory judgment provisions of acts such as Alabama's were studied by a joint research project of the American Bar Foundation and the University of Michigan Law School on state administrative law; the project noted that such provisions *204 should be available whether or not administrative remedies were available or have been exhausted:
F.E. Cooper, State Administrative Law at 247-48 (1965).
We note that the Revised Model State Administrative Procedure Act (1961) included no requirement that administrative remedies be exhausted before an affected party could pursue a declaratory judgment action. A.E. Bonfield, who was one of the two principal draftsmen of the Model State Administrative Procedure Act (1981),[5] states that the Revised Model State Administrative Procedure Act (1961), upon which our statute is based, "provides that a court may render a declaratory judgment with respect to the validity or applicability of a rule `whether or not the plaintiff has requested the agency to pass upon the validity or applicability of the rule in question.' It is otherwise silent on the extent to which a person must exhaust administrative remedies prior to seeking judicial review of a rule."[6]
It is clear that the Legislature, in adopting the APA, did not intend to limit declaratory judgment actions in any way. By the inclusion of § 41-22-10 in the APA, the drafters of this legislation ensured that the validity and applicability of a state agency rule or regulation could be the basis of a "justiciable controversy" as that term is used in our Uniform Declaratory Judgments Act. Section 41-22-11 was intended to force the state agency to make a decision, not to be a prerequisite to a declaratory judgment action. As the Supreme Court of Wisconsin stated:
Wisconsin Fertilizer Ass'n v. Karns, 39 Wis.2d 95, 158 N.W.2d 294 (1968); see Uniform Laws Annotated, "State Administrative Procedure," § 8 at 403 (1980).
We agree with the analysis espoused by the Honorable Alvin Prestwood, who chaired the committee responsible in large part for the passage of the Alabama Administrative Procedure Act, and who filed an amicus brief with this court in Stuart.[8] Section 41-22-10 provides that the validity of applicability of a rule of a state agency may be determined in an action for a declaratory judgment in the Circuit Court of Montgomery County. Section 41-22-11 allows a person who is substantially affected by a rule of a state agency to petition the agency for declaratory relief, and the circuit court may review the agency action under this section. The failure of the agency to act within 45 days of the request constitutes a denial of the merits of a request and is subject to judicial review.
*205 Each section has a field of operation. It is unnecessary as a precondition for bringing such a declaratory judgment action to first petition the state agency under § 41-22-11. To the extent that either Stuart or Cook holds otherwise, it is overruled.
We note that Rule 57, A.R.Civ.P., provides, inter alia: "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Section 41-22-25, Code 1975, provides that the APA "shall be construed broadly to effectuate its purposes," while the Declaratory Judgments Act provides that it "is to be liberally construed and administered." § 6-6-221, Code 1975.
The present case is a perfect example of why §§ 41-22-10 and -11 of the APA do not preclude a circuit court from entertaining a declaratory judgment action and do not require that a petition be filed with a state agency under -11 as a precondition for seeking a declaratory judgment. The cellular providers found themselves in a dilemma, having a possible tax liability hanging over their heads for the last four years, with no resolution in sight. There existed no "rule" of any administrative agency that would substantially affect them and that could be the subject of a declaratory ruling under § 41-22-11. Furthermore, the statutes that must be applied or construed in order to impose the tax are statutes enforceable by the PSC. The PSC is not an "agency" within the meaning of that term in the APA and is specifically exempted from the provisions of the APA. Therefore, § 41-22-11, providing for declaratory rulings by an "agency," is not applicable to the PSC. The cellular providers properly brought an action under the Declaratory Judgment Act and filed their complaint with the Circuit Court of Montgomery County, Alabama. The circuit court erred in dismissing their suit.
For the reasons stated above, we reverse the judgment and remand this cause to the trial court for a resolution of the justiciable controversy stated in the action for declaratory judgment and injunctive relief.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
[1] BellSouth Mobility, Inc., Alabama Cellular Service, Inc., and Huntsville MSA Limited Partnership.
[2] The Alabama Legislature passed Act No. 90-97, Ala. Acts 1990, after this suit was filed. That act relates to cellular radio telecommunication services and providers and makes it clear "that such services and providers are not included in and are excluded from the coverage and application of Title 37, Code of Alabama 1975, and from the levy of taxes and assessment of property under Chapter 21, Title 40, Code of Alabama 1975; and [it] levies a gross receipts tax on the monthly recurring access charges and local airtime charges for cellular radio telecommunication services made by their providers at a rate of 4%, or, if less, the rate imposed on utility gross receipts provided in [§]40-21-82, Code of Alabama 1975."
[3] The cellular providers timely appealed to the circuit court from that order, and by agreement the PSC order and the appeal have been stayed pending final disposition of this case.
[4] A.E. Bonfield, State Administrative Rule Making § 1.1.3 at 14-15 (1986).
[5] Id. § 1.1.3 at 12.
[6] Id. § 9.2.4 at 560-61.
[7] This section is very similar to § 41-22-11 of the Alabama Code. It states: "Any agency may, on petition by any interested person, issue a declaratory ruling with respect to applicability to any person, property or state of facts of any rule or statute enforced by it."
[8] "The application of the exhaustion principles to section 10 certainly would not enhance the orderly progress of proceedings and judicial decisions under the APA. Section 11 should be left to its own sphere of operation, and section 10 should be allowed to serve its purposes unfettered. It is respectfully submitted that persons who want relief available only through section 11 should be required to adopt that route, and those seeking relief available only under section 10 should be left to that remedy. In those cases where an affected person had standing and sought relief available under either section, he should be allowed to elect which of the remedies he would explore. It seems that any other approach would create a monster which would, as a practical matter, haunt the courts for some time to come." 505 So. 2d 298, at 302 (Maddox, J. dissenting). | June 22, 1990 |
9e950b4c-f158-4d5f-a6a3-23f1d7b4d786 | Wilder v. CHARLES BELL PONTIAC-BUICK | 565 So. 2d 205 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 205 (1990)
Bernice WILDER
v.
CHARLES BELL PONTIAC-BUICK, CADILLAC-GMC, INC.
89-51.
Supreme Court of Alabama.
June 22, 1990.
*206 Walter E. McGowan of Gray, Langford, Sapp, Davis and McGowan, Tuskegee, and W. Banks Herndon of Herndon & Dean, Opelika, for appellant.
Robert S. Thompson, Tuskegee, for appellee.
JONES, Justice.
The plaintiff, Bernice Wilder, appeals from a summary judgment for the defendant. The appeal relates to count 2, which charged the defendant with wrongfully taking her automobile and certain personal property in it. No issue with respect to that portion of the judgment pertaining to count 1 is presented by this appeal.
The pertinent facts are as follows: Wilder, who lives and works in Columbus, Georgia, visited an automobile dealership operated by the defendant, Charles Bell Pontiac-Buick, Cadillac-GMC, Inc. ("Charles Bell"), in Tuskegee, Alabama, as a prospective buyer of a new car. During the first meeting between Wilder and Mr. Jackson, an employee of Charles Bell, Wilder told Jackson that she would think about buying a new car from Charles Bell.
Both parties agree that there were later telephone conversations between them, but they disagree with respect to the content of those conversations. Several days after the first meeting between Wilder and Jackson, Jackson drove a new Cadillac automobile to Wilder's place of business in Columbus. Wilder's automobile (a 1984 Chrysler), which was being repaired and was in the custody of a repair shop, was picked up and taken to Tuskegee at Jackson's direction. Wilder's car was then sold to a dealership in Montgomery.
Charles Bell contends that Wilder consented to the taking of her automobile pursuant to an agreement that the Chrysler would serve as a "trade-in" on the new Cadillac. Wilder, however, denies giving such consent and further asserts that her car, and personal belongings in the car (clothing, business papers, medicine, and a hydraulic jack) were wrongfully taken by Charles Bell.
To maintain an action for conversion, a plaintiff must establish that the defendant converted specific personal property to his own use and beneficial enjoyment, or that the defendant destroyed or exercised dominion over property to which, at the time of the conversion, the plaintiff had a general or specific title and of which the plaintiff was in actual possession or to which he was entitled to immediate possession. A.C. Rent-A-Car, Inc. v. American Nat'l Bank & Trust Co. of Mobile, 339 F. Supp. 506 (D.C.Ala.1972), aff'd, 477 F.2d 564 (1973). See, also, Yarbrough v. Williams, 533 So. 2d 565 (Ala.1988); Allstate Enterprises, Inc. v. Alexander, 484 So. 2d 375 (Ala.1985); and Ott v. Fox, 362 So. 2d 836 (Ala.1978).
Further, "it is well established that it constitutes a conversion to receive property from one who has no right to part with, or dispose of, such property, and thereafter to exercise dominion over it." Universal C.I.T. Credit Corp. v. Weeks, 46 Ala.App. 372, 376, 242 So. 2d 682, 685 (1970).
*207 The propriety of granting a motion for summary judgment is determined by the standard set forth in Rule 56(c), A.R.Civ.P.:
The burdens placed upon the parties by Rule 56 have often been discussed by this Court:
Berner v. Caldwell, 543 So. 2d 686, 688 (Ala.1989); and see the cases cited therein.
Once a party has moved for summary judgment and, with his motion, has presented evidence that, if uncontested, will entitle him to a judgment as a matter of law, the non-movant, in his response to the motion, must, as provided by Rule 56, set forth specific evidence that would present a genuine issue of material fact for consideration by the jury. Walker v. Southeast Alabama Medical Center, 541 So. 2d 464 (Ala.1989).
Charles Bell argues that Wilder is not entitled to recover for conversion because she knowingly traded in her car for the Cadillac and, therefore, did not and does not have a special or general title to the property, which title is necessary to maintain an action for conversion. Wilder admits that she signed two papers (or perhaps signed a single paper in two places), one of which papers or signature may have been necessary for Charles Bell to take title to her Chrysler. She contends, however, that Charles Bell's argument overlooks the element of timing as the key to the transactions between the two of them.
Wilder, in her deposition and in her affidavit, stated that, as of the date that her car was taken from the repair shop and the new car was delivered to her, she had not consented to Charles Bell's taking her Chrysler and had not agreed to buy the new Cadillac. Wilder stated that she told Jackson that if she decided to buy the Cadillac she would come to Tuskegee on the Wednesday after they had talked; however, she said, upon her return to her office that Wednesday, Jackson was there with the new Cadillac. Wilder stated that she told Jackson, "I told you if I want the Cadillac, I will come over there and get it Wednesday," and that Jackson replied, "You don't have to Ms. Wilder. We brought it over here to you."
According to Wilder, it was during this conversation that Jackson told Wilder that her Chrysler was going to be sold to a man in Montgomery and that it was, at that moment, being taken to Tuskegee. Further, says Wilder, Jackson told her that she needed to sign in two places to release title to her Chrysler, to which Wilder says she then stated, "Well, since my car's almost goneyou know, TuskegeeWell, I guess I'll go ahead on and get it.... But I told you I'll be over there." Wilder contends that, under all the attending circumstances, she was left with no choice but to agree to Jackson's terms of the sale.
Contrary to Wilder's deposition testimony, Jackson, in his deposition, stated that before he took the Cadillac to Wilder and had her car picked up, Wilder had agreed to the transaction.
For summary judgment to be proper, there must be no genuine issue as to any material fact. The movant, in relying upon the depositions and pleadings, must set out facts that, if uncontested, would entitle him to judgment as a matter of law. The movant, Charles Bell, met this burden in the instant case; the non-movant, Wilder, then controverted those facts, relying upon depositions and her affidavit.
Clearly, a genuine issue of material fact does exist. The jury could reasonably infer that Charles Bell intentionally created a set of circumstances that stripped Wilder of *208 her free will and choice with respect to relinquishing title to her old car and that the taking of her car, under such circumstances and before an agreement was reached for her purchase of the new car, amounted to proof of each of the necessary elements of conversion. Summary judgment, then, was improperly entered as to Wilder's claim for conversion.
The summary judgment in favor of Charles Bell on Wilder's claim for conversion, therefore, is due to be, and it is hereby, reversed, and the cause is remanded for trial on the issue of conversion.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur. | June 22, 1990 |
31f7720a-70fb-45aa-8eae-61b1bcfe26b8 | Avery v. Geneva County | 567 So. 2d 282 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 282 (1990)
Roger AVERY, Sr., as administrator of the Estate of Jeffrey James Avery, deceased
v.
GENEVA COUNTY, Geneva County Commission, and Jerry Sellers.
88-1647.
Supreme Court of Alabama.
July 6, 1990.
Rehearing Denied August 31, 1990.
*283 Robert H. Harris of Capell, Howard, Knabe & Cobbs, Montgomery, for appellant.
Peter A. McInish of Lee & McInish, Dothan, for appellees.
HORNSBY, Chief Justice.
This is a wrongful death case. The action was filed by the deceased's father, who alleged that a Geneva County road crew released a large body of water and caused a flood and that the flood drowned his son, who was hunting downstream. The water had collected behind a beaver dam blocking two large culverts under a bridge on a county highway. The trial court entered summary judgment in favor of all the defendants, who included Geneva County, the Geneva County Commission, and Jerry Sellers, Geneva County's road and bridge superintendent.
On the morning of January 4, 1988, a Geneva County road crew began work breaking beaver dams throughout the county. Beavers build dams in front of bridge culverts and eventually stop the flow of water in the creeks. These dams must be broken in order to keep the water from flowing over the road and also to keep the beavers from removing dirt from the shoulder of the road and undermining the pavement of the road.
The evidence shows that a four-man road crew left the county's road and bridge maintenance yard that morning between 7:30 and 8:00 o'clock. They broke two other beaver dams before arriving at the dam *284 on Ten Mile Creek on County Road 4. The crew saw that the dam-breaking machine, a truck mounted backhoe, was needed to break the dam, which blocked both culverts under the road. They picked up this machine from a previous location and took it to the dam. One of the crew members testified that it took approximately 10 minutes to set up the machine and then 30 to 40 minutes to clear one of the two culverts. The road crew all testified that they were finished breaking the dam to the extent of clearing one of the two culverts by 10:40 a.m.
Paul Kennedy, one of the residents living on County Road 4, said he drove by the road crew between 10:00 and 11:00 a.m. that morning, following his usual routine. He said he observed the crew working during that time as he drove around them on his way to Hartford.
Mr. Odom, a member of the road crew, testified that the crew cleared one of the two culverts blocked by the dam. He stated that as they broke the dam blocking the first culvert the force of the water did not appear to him to be dangerous. He also testified that while the water will come out in a powerful stream, it will not be released all at once. The other road crew members expressed similar views as to how the water escaped when the dam was broken.
Mr. Odom also testified that while he could not have withstood the force of the water up to 10 or 15 feet downstream, past that point the force of the released water would not have been too strong to withstand. However, he did state that he and two of the other crew members would think of warning persons downstream the next time a beaver dam was broken.
The county road and bridge superintendent, Jerry Sellers, testified that he did not believe a dangerous condition was created downstream by the release of the water. He was joined in this view by three other witnesses: Mr. Howell, a Geneva County commissioner; one of the road crew members; and the crew foreman.
On this same morning, 19-year-old Jeffrey Avery left his home between 6:50 and 7:00 a.m.[1] to go deer hunting alone. The Avery farm, and specifically the area where Jeffrey was hunting, is located approximately one mile downstream from the beaver dam on County Road 4.
Jeffrey was expected to return home around 9:30 a.m. to help his brothers load livestock onto a truck for a routine trip to market. When Jeffrey had not returned home by 9:30, his brother Frank Lloyd Avery[2] went to look for him. Frank testified that he went to the family property running along the creek. He said he found the woods full of water and that his two or three calls for Jeffrey brought no response.
Frank returned to the house, according to Mrs. Avery, at approximately 9:30. She remembered Kenneth Avery making calls to the market for the prices on livestock. When finished with his calls, just after 9:34, Kenneth Avery left the house in search of Jeffrey. He said he found Jeffrey's body at approximately 10:00 a.m. in water that was about chest deep. He returned to the house to inform the family.
Sheriff Whittle and Deputy Tice arrived at the creek at approximately 11:30. Upon their arrival, the sheriff said, the depth of the creek was 3 to 4 feet. The sheriff testified that when he left an hour later, the level of the creek had dropped approximately 1 foot. The sheriff said he found no evidence of foul play or of any struggle in the area.
Jeffrey's father, Roger Avery, Sr., had been to the creek two days before Jeffrey's death. He testified that the creek was so shallow that he could "cross it with his shoes on." Three days after his son's death, Mr. Avery went to the scene to *285 study the condition of the land. He concluded that a large body of water had come down the creek and flooded the area.
Jeffrey's brother testified that one of the road crew members, Ronnie Odom, told him that the dam was broken between 9:00 and 10:00 a.m. The record shows further evidence of a possible irregularity in that the daily activity sheets used by the road crew were more detailed for January 4 than for any other day. The testimony in the record showed that the sheet for January 4 indicated that the road crew broke the dams on County Road 4 at 10:30 a.m. There were no other sheets discussed in the record in which the specific time for work performed had been noted.
The record shows that Jeffrey had been taking medication for seizures since age 13, although he had been known to have had only one seizure during his lifetime. He saw a doctor in Dothan every six months for these seizures and took his medication regularly.
The defendants filed a general motion for summary judgment. The court granted that motion, and the plaintiff appeals from the defendants' summary judgment.
The plaintiff alleged in his complaint that the releasing of a large body of water without warning to Jeffrey Avery or anyone else who might be located downstream from the pond constituted negligence as well as an abnormally dangerous activity. He further alleged that Jeffrey's death was proximately caused by the release of this water, that the release of the water constituted a trespass onto his property, and that the defendants' actions constituted wanton behavior. We note that neither the plaintiff nor the defendants have raised in any manner the issue of sovereign immunity.
The plaintiff claims that the trial court erred in entering summary judgment against all counts of the complaint. He contends that there is a genuine issue of material fact, namely the exact time the county road crew released the water from the beaver dam into the creek. The defendants claim that there was no evidence presented by the plaintiff of a duty owed by the defendants or of a breach of duty. Additionally, the defendants claim that the plaintiff has not shown that any actions of the defendants proximately caused the death of Jeffrey Avery.
We review a summary judgment to determine if there is any genuine issue of material fact and if the movant is entitled to a judgment as a matter of law. A.R. Civ.P. 56; Tripp v. Humana, Inc., 474 So. 2d 88 (Ala.1985). We note that this case was filed after June 11, 1987, and is therefore subject to the "substantial evidence" rule. See Ala.Code 1975, § 12-21-12. Therefore, in order to defeat a properly supported motion for summary judgment, the plaintiff must present evidence of such quality and weight that fair minded persons in the exercise of impartial judgment can reasonably infer the existence of the facts sought to be proved. Economy Fire & Cas. Co. v. Goar, 551 So. 2d 957, 959 (Ala.1989); see also Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala.1989); Rowden v. Tomlinson, 538 So. 2d 15 (Ala.1988) (Jones, J., concurring specially). The facts and evidence should be construed in a light most favorable to the plaintiff as the non-moving party in this case. Best v. Houtz, 541 So. 2d 8 (Ala.1989).
In summary judgment cases, after the defendant has made a prima facie showing that it had no duty or that it was not negligent, the plaintiff's burden is to present substantial evidence of the following: (1) a duty owing from the defendants, (2) a negligent breach of that duty, (3) which proximately caused (4) the plaintiff to be injured or damaged. Jones v. General Motors Corp., 557 So. 2d 1259 (Ala.1990).
The defendants claim that they had no duty to warn persons downstream prior to breaking the beaver dam and that even if a *286 duty was owed, it would be only to persons within the immediate vicinity of the beaver dam. We find no Alabama cases guiding us as to the duty owed under these specific facts.
Generally, however, the defendants here owed the plaintiff the duty to not change the course of nature so as to interfere with the enjoyment of the subservient premises. See Sloss-Sheffield Steel & Iron Co. v. Webb, 184 Ala. 452, 455, 63 So. 518, 519 (1913). In that case, a landowner who had created a pond by changing the natural flow of water was liable for damage to the land of the lower owner when the dam broke. Further, we find that the liability of a defendant for depositing or placing foreign substances upon the lands of the plaintiff has been stated in Sloss-Sheffield Steel & Iron Co. v. McCullough, 177 Ala. 448, 456, 59 So. 210, 213 (1912) (quoting Alabama Western R.R. v. Wilson, 1 Ala. App. 306, 55 So. 932 (1911)):
While neither McCullough nor Webb speaks specifically to a death caused by the intentional release of water by breaking a dam or to any duty to warn, those cases are sufficient to show that Alabama does recognize that an owner or one who maintains a dam should not cause the property of the lower landowner to be rendered unsafe by his acts in connection with that dam.
We find further that the plaintiff here must prove that the defendants acted in a negligent manner and that their negligence caused the death of the plaintiff's intestate. See Ellis v. Alabama Power Co., 431 So. 2d 1242, 1245 (Ala.1983). One who owns or operates a dam owes a duty to the lower owners to exercise reasonable care. Id. While the typical scenario, as found in Ellis, involves a large hydroelectric dam, the same general rule is applicable to this situation. See also, M.C. West, Inc. v. Battaglia, 386 So. 2d 443 (Ala.Civ.App.1980).
Several other jurisdictions have found a duty to warn those persons downstream when the possibility of a flood exists. In Coates v. United States, 612 F. Supp. 592 (C.D.Ill.1985), the court held that the Government had a duty to warn persons who were camping down the mountain from a dam that the area park rangers knew had broken. The court found that there was sufficient time to warn the campers, and in fact one of the rangers had warned several persons, but without any urgency. The Government was found liable for the wrongful death of one of the campers who drowned after the flood waters reached the lower campsite where he was taking pictures.
In Peterson v. United States, 367 F.2d 271 (9th Cir.1966), the plaintiffs sued to recover money damages for injury and loss of property allegedly caused by negligence when, without warning of any kind to the plaintiffs, a group of engineers attached to Ladd Air Force Base at Fairbanks, Alaska, caused to be dynamited an ice jam that had accumulated from natural causes in a bend of the Chena River. The dynamiting of the jam caused a large volume of ice and water to be discharged downstream, in turn causing damage to vessels and miscellaneous equipment five miles downstream. The district court determined that the Government had a complete legal defense under the Flood Control Act of 1928. The court of appeals disagreed, and remanded the case to the district court for a determination of the Government's liability.
Finally, in Chrysler Corp. v. Dallas Power & Light Co., 522 S.W.2d 742 (Tex. *287 Civ.App.1975), a summary judgment entered in favor of the defendant, Dallas Power & Light Company ("DP & L"), was found to be improper. The court stated that "Texas law does recognize a duty to warn on the part of the person who creates a dangerous situation, although without negligence on his part." 522 S.W.2d at 744 (citations omitted). While the court found that DP & L did not create the flood, which caused damage to 545 vehicles stored by the plaintiff, it determined that DP & L "created, maintained, and operated the dam, the presence of which posed nearly all of the problems of proper conduct." Id.
We conclude that the summary judgment entered in this case in favor of the defendants as to negligence was error. The jury should be allowed to determine if the defendants created a dangerous situation downstream by the breaking of the dam and, thus, had a duty to warn those who might be affected by the sudden surge of water. We therefore reverse the summary judgment in favor of all the defendants as to this issue, and remand for further proceedings.
The defendants claim that upon their motion for summary judgment they made a prima facie showing that their acts did not proximately cause Jeffrey's death, and that the plaintiff has failed to rebut that showing by presenting substantial evidence that the release of the water was the proximate cause. The defendants further claim that it was not foreseeable that a person one mile below the beaver dam would suffer any harm or injury.
The record clearly shows that no one knows exactly what time or by what cause Jeffrey Avery died. However, as we have previously noted, summary judgment is rarely appropriate in a case involving a claim alleging negligence. Tripp v. Humana, Inc., 474 So. 2d 88, 90 (Ala.1985). The issue of proximate causation is "not easily established to a legal certainty and the resolution of [it] ... is a prerogative reserved to the jury." Id. See also, Ex parte Patterson, 561 So. 2d 236 (Ala.1990) (plaintiff's injuries found to be causally connected with his employment "notwithstanding the fact that the circumstances surrounding the accident itself remain largely unexplained").
The plaintiff has presented substantial evidence that the creek was flooded between 9:00 and 10:00 on the morning of January 4, 1988. Jeffrey Avery was found, according to the plaintiff's evidence, at approximately 10:00 a.m. While the testimony of the road crew shows that they completed breaking the dam at 10:40 a.m., the testimony of Roger Avery, Jr., shows that a member of the road crew, Ronnie Odom told him that the water was released from the dam between 9:00 and 10:00 that morning. Mr. Odom's testimony also shows that he made such a statement to Mr. Avery.
The defendants contend that because they have presented evidence that the dam was broken sometime between 10:00 and 10:40 a.m., and that because Jeffrey was found at approximately 10:00, there can be no liability on the part of the county. This conflict in the evidence should be presented to the jury.
Further, this Court has held that if injury or damage is "a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury," then liability will be imposed. Vines v. Plantation Motor Lodge, 336 So. 2d 1338, 1339 (Ala.1976). See Ducey v. United States, 830 F.2d 1071, 1073 (9th Cir.1987) ("A defendant has a duty to warn foreseeable victims of foreseeable harm"; Government had a duty to warn downstream landowners when it knew of the high probability of a 100-year flood). See, also, Jefferis v. Chicago & N.W. Ry., 147 Iowa 124, 124 N.W. 367 (1910) (evidence held sufficient to warrant determination by a jury of whether defendant's employees were negligent in causing material accumulating in the stream to block the stream, causing a flood).
Because we find a jury question as to whether there was a duty to warn on behalf of these defendants and because we *288 hold that the determination of proximate cause is a question also reserved for a jury, we reverse and remand this case to the trial court for further proceedings.
The plaintiff contends that the manner in which the large body of water backed up behind the county highway was released constituted an abnormally dangerous activity. The plaintiff relies on Harper v. Regency Development Co., 399 So. 2d 248 (Ala.1981), in specifically claiming that the release of the water created "a high degree of risk of some harm to the person" and that there was a "likelihood that the harm that result[ed] from it [would] be great." Id. at 253.
Harper involved claims arising out of blasting operations on Red Mountain in Birmingham. This Court adopted the factors set forth in Restatement (Second) of Torts, § 520 (1977), to aid the jury in determining whether an activity is abnormally dangerous and therefore would support a finding of negligence.
The Harper Court stated:
We find that the analysis and factors used in Harper to determine negligence in blasting cases should be used in determining whether the defendants here have carried on an abnormally dangerous activity that constitutes negligence. As Harper said, at 253, these determinations are "issues of fact for the jury."
The plaintiff's complaint further alleges that the "release of the large body of water by the Defendants and their employees constituted a trespass upon the property of the Plaintiff." We note that the plaintiff does not allege a trespass to the person of the decedent, Jeffrey Avery. At the outset, we note that trespass to real property has apparently not been considered by our appellate courts in the context of the Alabama wrongful death statute, Ala.Code 1975, § 6-5-410. Section (a) of that statute provides as follows:
Although there appears to be no earlier case explicitly discussing whether trespass can serve as a "wrongful act" that would establish a cause of action under our statute, our law is well settled that trespass to real property is a wrongful act that intrudes upon the possessory interest of the owner. See Cox v. Stuart, 229 Ala. 409, 157 So. 460, cert. denied, 26 Ala.App. 231, 157 So. 458 (1934); Barnett v. Bolling, 37 Ala.App. 612, 73 So. 2d 575 (1954). Certainly we have held that a trespass is a wrongful act that can result in a claim for personal injury proximately caused by the trespass. Engle v. Simmons, 148 Ala. 92, 41 So. 1023 (1906). It would follow that a trespass to real property could serve as a "wrongful act" so as to give rise to a cause of action under our wrongful death statute.
Ala.Code 1975, § 6-5-410, also requires, however, that the decedent could have commenced an action for the wrongful act had that act not resulted in his death. Our next consideration must therefore be whether Jeffrey Avery could have commenced an action for trespass on the property in question. Examination of the record indicates that the plaintiff is the owner of the property and has a clear right *289 to its possession, but there is no evidence that would support an inference that the decedent had any possessory interest in the property.
Our law on trespass is plain that the gist of any trespass action is the interference with a right to possession of property. Absent such right of possession, there can be no action based on trespass. Dollar v. McKinney, 272 Ala. 667, 133 So. 2d 673 (1961); Sutton's Music Co. v. Top Music Co., 377 So. 2d 1092 (Ala.Civ.App.1979). The effect of this rule is that the decedent did not have standing to bring a trespass action against the defendants at the time the dam was broken. Since the plaintiff can maintain only those actions in wrongful death that the decedent would have had, if the act had not caused death, and the decedent would have had no action in trespass, the trial court properly entered summary judgment for the defendants on the trespass claim.
Finally, the plaintiff claims that the actions of the defendants constituted wantonness.
Roberts v. Brown, 384 So. 2d 1047, 1048 (Ala.1980). "The most crucial element of wantonness is knowledge, and while that element need not be shown by direct evidenceit may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference." Id.
The defendants made a prima facie showing that there was an absence of wantonness; the plaintiff has not shown substantial evidence for the jury to consider on the question whether the conduct of the defendants constituted wantonness. As to the wantonness claim, the summary judgment is due to be affirmed.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
SHORES, HOUSTON and KENNEDY, JJ., concur.
JONES, J., concurs specially.
MADDOX and STEAGALL, JJ., dissent.
JONES, Justice (concurring specially).
I agree that the judgment, as it relates to the claim based on negligence, is due to be reversed. I believe, however, that, under these facts, reliance on precedents relating to the duty of one landowner not to damage the land of another by the sudden release of a large volume of water is misplaced, and thus not necessary for our discussion and resolution of the "wrongful death" issue before us.
MADDOX, Justice (dissenting).
I must respectfully dissent. I agree with the proposition of law cited by the majority that one in charge of a dam has a duty to warn persons downstream when flooding may occur; however, the law provides that there is a point at which that duty to warn ends. The majority's holding in this case extends that duty to warn of a dam break further downstream than I feel the law requires; therefore, I do not believe that a jury should be permitted to decide that question, which I think is a matter of law in this case.
Here, it is undisputed that the road crew had no knowledge of Jeffery Avery's being a mile downstream; I do not believe that the law requires the road crew to take measures, under these facts, to ascertain that he was there so that he could be warned.
I recognize that summary judgment is rarely appropriate in a negligence case, but one of the elements of negligence is a duty, and whether the law recognizes a duty is a legal question. I fear that the *290 majority opinion allows a factfinder to determine a legal question under these facts.
Also, the dam could cause water to back up and flood land above the dam, and there could be damage and possible liability for these damages. The majority's holding would require road crews to steer a course between Scylla and Charybdis. On the one hand, the crews are responsible to the travelling public to make sure that the road will not be affected by the impounded water, and the crews also could be responsible for what has been described as "inverse condemnation" if the water were allowed to flood upper riparian land; yet they cannot break a beaver dam such as this one without first warning persons downstream for an unspecified distance. In a rural, forested area, and under these facts, I do not believe the law does, or should, extend the duty to warn so far. I do not believe the law requires this of the county.
There has to be a reasonable interpretation on the scope of this duty to warn. Certainly, the county is under a duty to warn all persons and landowners that the county knows are downstream, extending as far downstream as the flood waters can reasonably be expected to have an effect. I would also agree that they are under a duty to search for unknown persons downstream (such as hunters) for that distance through which the force of the flood surge could be expected to be too strong to withstand, which in this case was testified to be only 10 to 15 feet. However, to require in this case that a warning be given to an unknown person one mile downstream is unreasonable,[3] especially since the road crew had no way of knowing that that person would be there and no reasonable way of finding him if they had known. As the majority states, a defendant has a duty to warn foreseeable victims of foreseeable harm, citing Ducey v. United States, 830 F.2d 1071 (9th Cir.1987). Although foreseeability is usually a fact question, under the facts of this case, I do not believe that it was foreseeable that a hunter in the woods one mile downstream would be in any danger because of the breaking of this beaver dam. Therefore, I must dissent.
STEAGALL, J., concurs.
[1] We note that the testimony of Deputy Kenneth Tice shows that Jeffrey left to go hunting at approximately 6:00 a.m. and had not returned by 8:00 or 8:30 a.m. His testimony appears inconsistent with that of other witnesses, however, when he states that the call into the sheriff's department was received about 10:00 a.m. All other testimony indicates that the call actually came in at 10:45 a.m.
[2] The testimony shows that Frank Lloyd is referred to throughout the record as both "Frank" and "Lloyd." We will refer to him as "Frank."
[3] Of course, a larger dam with more water behind it may pose a threat much farther downstream. In the instance of a major dam break, one mile, or even much more, may be a reasonable distance to require the dam operator to go to warn persons downstream. The reasonableness of the duty to warn must be tied to the facts of the individual case. Here, one mile is unreasonable. Even so, I must point out that the majority opinion does not limit its language to one mile; the opinion seems to make the duty to warn persons downstream absolute and to impose it for an indefinite, and even infinite, distance. | July 6, 1990 |
736bbf79-27ca-4ee9-8fef-8c4818d92233 | Eaton v. Horton | 565 So. 2d 183 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 183 (1990)
Frank H. EATON, et al.
v.
Charles R. HORTON, et al.
88-699.
Supreme Court of Alabama.
June 15, 1990.
*184 George R. Stuart III, Birmingham, for appellant.
Gary C. Huckaby, G. Rick Hall and Warne S. Heath of Bradley, Arant, Rose & White, Huntsville, for appellee.
SHORES, Justice.
This appeal arises out of the trial court's denial of the defendants' motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The defendants claim that the motion should have been granted because the jury foreman failed to respond to a question on voir dire. We affirm.
On February 19, 1986, Charles R. Horton and several other individuals who were limited partners in The Atrium Hotel of Huntsville, Ltd. (hereinafter all referred to as "Horton"), filed suit, alleging, among other things, fraud, breach of contract, negligence, and wantonness, against the general partners, Frank Eaton and certain corporations with which he was affiliated (hereinafter he and the corporations are referred to as "Eaton"). The case was set for trial before a jury, and on August 29, 1988, the venire was questioned on voir dire. One of Eaton's attorneys asked the venire whether anyone had been a plaintiff in a case or was employed by anyone who had been a plaintiff in a case. John Wallace Goodwin, who later served as foreman of the jury, did not respond. On September 16, 1988, the jury returned a verdict against Eaton and assessed damages.
In support of the JNOV/new trial motion, Eaton cited several allegations of error, including juror Goodwin's failure to identify himself as a plaintiff in a pending action when Eaton's counsel propounded the question on voir dire. Eaton submitted several items in support of the motion: (1) a copy of a complaint filed by Goodwin and his wife against Sperry Rand Corporation and others, alleging fraud, breach of contract, conversion, and civil conspiracy; (2) the affidavits of four defense attorneys in this present case who stated that Goodwin did not respond when the venire was asked whether anyone had been a plaintiff in a lawsuit or had been employed by anyone who had been a plaintiff in a lawsuit (two of the attorneys stated that had Goodwin identified himself as a plaintiff in a case set for trial on September 19, 1988, he almost certainly would have been stricken, and, at a minimum, he would have been questioned about the nature of the action in which he was involved); (3) an order of the United States District Court for the Northern District of Alabama entered August 30, 1988, entering a partial summary judgment for the defendant in Goodwin Equipment Co. v. Unisys Corp.;[1] and (4) an order entered on September 15, 1988, in the Unisys case dismissing the action with prejudice pursuant to the parties' agreement. In the motion for new trial, Eaton stated, upon information and belief, that Goodwin had settled a claim against Unisys for $25,000 while he was a juror in the present case. Eaton argued that Goodwin had intentionally withheld vital information and that he was, therefore, entitled to a JNOV or a new trial.
Horton filed a response to the motion for JNOV or new trial. In the response, Horton stated that Eaton had not even attempted to show actual prejudice by Goodwin's failure to respond to the voir dire question, and had instead only hypothesized that had Goodwin responded, he would have been questioned further or he would have been stricken from the venire. Horton also noted that during the course of the trial, juror Goodwin called to the court's attention his pending litigation, that the court informed the attorneys that one of the jurors was involved in a case and, later, that the case had been settled. He also stated that Eaton's attorneys made no *185 attempt to question the juror or to pursue the matter in any way after they received the information. Eaton also submitted the affidavit of Juror Goodwin. Goodwin stated that he specifically recalled being asked on voir dire whether he had been sued, but that he did not understand that the members of the venire were also asked whether they had been plaintiffs.
The only issue now before us is whether the trial court abused its discretion in denying Eaton's motion for a new trial based on Goodwin's failure to answer on voir dire that he was a plaintiff in a pending lawsuit.
Initially, we note that the record contains no evidence indicating that Juror Goodwin was involved in any way with the federal case of Goodwin Equipment Co. v. Unisys Corp. The complaint and the order entering a partial summary judgment in that case, which were filed as attachments to Eaton's post-trial motion, show only that the plaintiff was Goodwin Equipment Company. Neither of these documents refers to John Wallace Goodwin or suggests that he had a relationship with Goodwin Equipment Company, and, therefore, they do not support Eaton's assertion that Juror Goodwin failed to disclose on voir dire that he was a plaintiff in a lawsuit.
We agree with Eaton that counsel and parties have a right to honest answers from venire members so that they can make fully informed decisions in striking the jury. We further agree that when prospective jurors fail to answer questions correctly, counsel and parties are denied that right. Martin v. Mansell, 357 So. 2d 964 (Ala.1978). It is well established that when a trial court is presented with a motion for a new trial based on an improper response or a lack of response to a question on voir dire, the court must determine whether the response or lack of response has resulted in probable prejudice to the movant. Freeman v. Hall, 286 Ala. 161, 238 So. 2d 330 (1970). The question of prejudice is primarily within the trial court's sound discretion, and its ruling on the motion for new trial will be reversed only upon a showing of an abuse of that discretion. Id. at 167, 238 So. 2d 330 at 332. Furthermore, we have often noted that a trial court's denial of a motion for a new trial strengthens the presumption of the correctness of the jury's verdict. Moon v. Nolen, 294 Ala. 454, 318 So. 2d 690 (1975).
In Moon v. Nolen, a juror failed to respond truthfully on voir dire, a fact that the appellant learned before the trial was over, but failed to raise with the court until after judgment was entered. The denial of the motion for new trial on those grounds was affirmed. In Williams v. Dan River Mills, Inc., 286 Ala. 703, 246 So. 2d 431 (1971), an attorney failed to timely challenge a juror for cause. We affirmed the trial court's denial of the motion for new trial, noting that during the trial the attorney had become aware of facts sufficient to impose on him a duty to further investigate the situation if he was truly disturbed by the juror's presence on the jury.
This is the situation in the present case. The record now before us indicates that during the trial, counsel for the parties were informed, first, that one of the jurors was involved in a case set for trial the next week, and, second, that that case had been settled. Once Eaton was informed of these facts, he had a duty to further investigate the situation and voice his objection. Upon receiving this information, Eaton made no objections to the juror's continued service. Furthermore, Eaton made no inquiries into the nature of the lawsuit or into Juror Goodwin's suitability as a juror because of his involvement in that lawsuit. If Eaton intended to raise an objection to Goodwin's silence on voir dire, he should have done so promptly. Instead, we hold that, having concluded the case with notice of the facts and having taken the chance of a favorable verdict, Eaton has waived any objection to Goodwin's failure to respond; thus, the trial court did not err in denying the JNOV/new trial motion.
Based on the foregoing, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] This case was originally styled Goodwin v. Sperry Rand Corp. (CV-83-2051) and was filed in the Circuit Court of Jefferson County. It was removed to the United States District Court for the Northern District of Alabama and restyled Goodwin Equipment Co. v. Unisys Corp. (Civil Action No. 88-AR-1141-S). | June 15, 1990 |
12ea99fe-723d-4d94-b8fb-0435111b01dc | Griggs v. Finley | 565 So. 2d 154 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 154 (1990)
Jerry GRIGGS and Wanda D. Griggs
v.
Jon S. FINLEY.
88-1543.
Supreme Court of Alabama.
June 8, 1990.
*156 Glenn F. Manning of Lange, Simpson, Robinson & Somerville, Huntsville, for appellants.
Charles S. Rodenhauser of Rodenhauser & O'Dell, Huntsville, for appellee.
HORNSBY, Chief Justice.
This is a fraud case. The complaint alleged generally that the defendants represented to the plaintiff that the property the plaintiff purchased was located on a public road, that the property was suitable for the placement of a septic tank, and that the real estate located between the driveway of the property and Griggs Road would be deeded to the plaintiff by the defendants upon the sale of the property owned across the road by the defendants. The plaintiff purchased the house and lot from the defendants and later discovered that the property would not support a standard septic tank system. The plaintiff also discovered that most of the front yard he had purchased was subject to a right-of-way owned by the county. The case was submitted to the jury on the plaintiff's fraud and misrepresentation claims. The jury returned a verdict of $70,000 compensatory damages and $100,000 punitive damages. The trial court denied all post-trial motions, and the defendants have appealed.
The plaintiff, Finley, testified that he inquired about the property at issue in this case after seeing a sign advertising a lot for sale. He contacted the owners of the lot, a husband and wife, Wanda and Jerry Griggs, and arranged to look at certain property owned by them.
One parcel included a yellow house; that parcel is located at 245 Griggs Road in Huntsville. The plaintiff walked through the house with Jerry Griggs, noting that it needed some work. Finley testified that Griggs told him that the asking price was $90,000. Finley indicated that he would need time to think about all the properties he had looked at that day. According to Finley, there was no discussion about any right-of-way at that time.
Finley testified that several days later he offered Griggs a purchase price of $91,000. (We note that the record bears out the unusual event that Finley offered $1,000 more than Griggs asked.) Griggs testified that there might have been two additional meetings between him and Finley. According to Finley, Griggs agreed to this price the next day. Finley testified that on December 2, 1985, he and Griggs met to discuss the contract.
The Right-of-Way
Finley testified that Griggs told him that "the front yard right now is not your property," that Griggs had given the county a 50-foot right-of-way through the front yard of the lot to assist the county engineer in building the road. Griggs's testimony indicates that the county engineer wanted to build the road on a flat part of the Griggses' property rather than to have to blast out the side of a hill located in the right-of-way. Griggs agreed to the building of the road on a portion of his property not subject to the right-of-way he had previously granted. He testified that he intended to later give the City of Madison a right-of-way to the land containing the road in exchange for a release of the property subject to the existing right-of-way.
According to Finley, Griggs told him that all that needed to be done was to swap the deeds for the land, giving the county the road on Griggs's land, and releasing to Griggs that portion of his yard subject to the right-of-way. It is not clear from the record who actually owns the right-of-way at present. The record shows that the initial right-of-way was held by the county. Griggs had not done this, according to Finley, because he had not found the time. *157 Finley testified further that he made it clear to Griggs that if he could not have the front yard, he did not need to buy the house.
Griggs testified that the first meeting was at a local restaurant and that he told Finley about the septic tank problem and the problem involving the right-of-way.
Griggs testified that the mayor of the City of Madison wanted to deed the right-of-way to Finley so that the City would have no obligation for this property. He insists that he did not tell Finley that he could accomplish the deed swap and kept Finley informed of the progress of his negotiations. Griggs's testimony also indicates that he made numerous attempts to work out the problem with the city and county officials and engineers.
Griggs also testified that he explained to Finley that Griggs Road was a private road, and that he told Finley that he would attempt to get the city or county officials to trade the right-of-way and make the road public. He insists that he did not assure Finley he could do this and did not know who he was going to deal with. He admits, however, that Finley did tell him that if the front yard consisted mostly of land subject to a right-of-way, Finley did not want the house.
Griggs further testified that he has delivered a quitclaim deed to Finley, but that the land referred to in that deed was not the land in Finley's front yard that was subject to the right-of-way but another parcel of land, consisting of .39 acres. He contended at one point in the record that this fulfilled the requirement of the contract that "seller agrees to deed strip between driveway and Griggs Road upon closing sale of 245 Griggs Rd. to buyer." His later testimony contradicts this explanation.
Discussions Regarding the Septic Tank
Griggs and Finley discussed the other parts of the contract. While the contract shows the property for sale as "248 Griggs Road," we note the correct location is "245 Griggs Road." According to Finley, they also "went over the dollar amount" and Griggs then asked Finley, "You do know about the septic tank?" Finley said he replied in the negative and that Griggs informed him that the Griggses owned a larger white house across the street from the one to be purchased by Finley. The house Finley was buying did not have a separate septic tank system, but was connected to the defendant's septic tank system across the street. Because the Griggses owned all the land on both sides of the road, both houses were connected to the same system in order to save money.
Finley told Griggs that because he did not know anything about septic tanks, he wanted Griggs to add the septic tank to the cost of the purchase price and "we will work around that." Finley testified that Griggs told him that it would cost approximately $750 for a septic tank. Finley testified that Griggs then told them that "anyway, the front yard that we just walked over, that's where the County Board of Health told me where your septic tank is supposed to go because we are going to switch out these deeds." Finley asserts that Griggs told him that he had a permit for the installation of the septic tank, and that he showed Finley where in the yard it was to be placed.
Finley admits that he knew of the need for a septic tank in the future, and that in the contract there was included a provision indicating that he knew that. However, Griggs testified that he did not remember much discussion at the first meeting regarding the septic tank. Griggs insists that he was not present when this addition was made to the contract, and that Finley included this portion on his own. Griggs further insists that he did not know that the property purchased by Finley would not support a septic tank. He said he did not remember being told by the former chief sanitarian for the Madison County Department of Public Health, W.T. Garrison, that the lot would not support a septic tank system. Griggs testified that sometime in 1976 a septic tank permit was issued for the lot on which the plaintiff's house is located, and that another one was issued about eight months later.
*158 Both men signed the contract. Mrs. Griggs was not present during the negotiations; Finley testified that Griggs told him the next day that she also had signed the contract. Griggs's testimony is that Mrs. Griggs was not an active participant in the negotiations, but that he was acting for both of them because they were both owners of the property.
Finley testified that at the closing he again made it clear with the closing attorney that unless he was getting the land without its being subject to the right-of-way, then he did not want to purchase the house. He said he was told that the contract for sale was valid and that he would "get the strip of land." Additionally, he testified that when the closing attorney read over the part of the contract about the septic tank, both Mr. and Mrs. Griggs stated that they had a permit for the septic tank for that house. Finley was told that when the Griggses sold their house across the street he would need to install his own septic tank.
Finley first became aware of the extent of the right-of-way when he received a copy of the survey at the closing. Again, Finley indicates that both Mr. and Mrs. Griggs told him at the closing that they owned the land on which the road was built and would swap deeds with the county. He testified that he checked with Griggs regularly regarding the swapping of the deeds.
Finley said he moved into the house the third week of January 1987 and began making renovations in February. He continued making renovations until September or October 1987, when he discovered that his land would not pass the percolation test and would not support a traditional septic tank. He said he also discovered that there had not been a permit issued for the 2.91 acres. He testified that he has paid the Griggses all the amounts due under the contract.
The Griggses have presented 27 issues on appeal. Generally, these issues deal with whether the trial court committed error:
1. in denying the Griggses' motions for judgment on the pleadings, for directed verdict, or alternatively for new trial or JNOV;
2. in allowing the plaintiff to generally amend his complaint to conform to the evidence presented at trial;
3. in instructing the jury;
4. in admitting evidence of the expenses for renovation as submitted by the plaintiff; and
5. in allowing testimony of the plaintiff's expert as to the market value of the property in 1989.
The defendants have also claimed that the jury verdict is against the great weight and preponderance of the evidence and that it is excessive. In addition, the Griggses claim that the trial court erred in not ordering a remittitur and in failing to state on the record the criteria considered when it determined that the punitive damages award was not excessive. See Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).
The Griggses complain that the trial court should have granted their motion for a directed verdict and their motion for JNOV as to the claim alleging fraudulent representations regarding the suitability of placement of a septic tank system. We find these claims to be without merit, given the testimony found in the record.
Mr. W.T. Garrison testified that he is now an environmental consultant and that he performs soil work, percolation tests, and site evaluations for sewer systems. He had been the chief sanitarian at the Madison County Department of Public Health for 30 years.
Garrison had visited the property now known as 248 and 245 Griggs Road in 1976. His testimony indicates that he issued a permit for the Griggses' white house, but never for the property now owned by Finley, which is across the street from the Griggses' white house. Garrison's testimony shows that because the Griggses owned *159 all of the property when he visited the site in 1976 and 1977, they "bent the rules a little," issuing a permit to serve the yellow house with the septic tank to be installed on the property where the white house was located. The yellow house, he said, was to be used only for sleeping quarters by the Griggses, with no washing or cooking to be done there. This testimony serves to clarify the notations made on Defendants' Exhibits 1 and 2 showing that the permits were issued in 1976 and 1977 for a home the size of the yellow house, and it clarifies the conflicting testimony of Mr. Tipton.
Garrison returned to the property in 1977 and saw that a yellow house had been moved onto 245 Griggs Road. Griggs told him the yellow house was to be used as sleeping quarters, but Garrison could not determine how a septic tank could be installed. There was no requirement, however, in 1977 that a percolation test be done on the property, but there was still a requirement that the property support a septic tank system. In 1977 he could not find an area that would support a system.
He was requested to return to the property again in 1978 to locate a place for the septic tank suitable for the address at 245 Griggs Road. The record is unclear, however, whether Garrison was visiting 245 or 248 Griggs Road. He did not conduct a "perk" test in 1978 on the Finley property and could not find a place where it was feasible to drill a hole. He states that he communicated this to the person who requested him to visit the property. Griggs denies that Garrison told him this.
Garrison said that Mrs. Finley asked him to perform a percolation test in October 1987. He told her that he was already familiar with the property and that if he tested it he would "just be taking their money," because he would know before coming to the property what the results would be. Garrison testified that because most of cases he dealt with did not reach him unless they were unusual, he specifically remembered visiting virtually every site he investigated. Contrary to this testimony, Mr. Tipton, who worked under Mr. Garrison, could not recall whether he issued the first permit from the office or issued it after he visited the site. In fact, Tipton testified that when he had talked with Mr. Finley's attorney, he could not remember anything about the permits and referred the attorney to Mr. Garrison.
Garrison said that he again returned to the property in 1988 at the request of Finley's attorney, in an attempt to conduct a "perk" test, but could not drill to the maximum depth of three feet in the right-of-way or in any other part of the property. His testimony indicates that the Finley property will not support a standard septic tank system. Garrison said he also determined the feasibility of connecting the house to the city sewer system. He estimated the cost for running a sewer line for 505 feet the distance involvedto be $50 a foot, which did not include rock removal, blasting, or manholes. He did not determine a total figure because of the undeterminable amount of blasting needed.
The standard of review for a motion for JNOV is the same standard used by the trial court in granting or denying a directed verdict motion initially. Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160, 162 (Ala.1988); citing Turner v. Peoples Bank of Pell City, 378 So. 2d 706 (Ala. 1979). "Granting a motion for JNOV is proper `only where there is a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ' and the moving party is entitled to judgment as a matter of law." Alpine Bay Resorts, at 162, citing Deaton, Inc. v. Burroughs, 456 So. 2d 771 (Ala.1984). See McDowell v. Key, 557 So. 2d 1243 (Ala. 1990).
Section 6-5-101, Ala.Code (1975), reads:
Hammond v. City of Gadsden, 493 So. 2d 1374, 1377 (Ala.1986). This Court has previously written:
Hammond, supra, citing International Resorts, Inc. v. Lambert, 350 So. 2d 391 (Ala.1977). This Court has further defined the reliance aspect of a claim for fraud in Hickox v. Stover, 551 So. 2d 259, 263 (Ala. 1989). See also McDowell v. Key, supra; Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially).
From the testimony set out above, we conclude that it was not error for the trial court to deny the defendants' motion for directed verdict or the motion for JNOV as to the allegations of fraudulent representations concerning the septic tank and the right-of-way. That evidence supported the jury's finding of misrepresentation and supports a finding that plaintiff's reliance on these representations was justifiable, because the evidence would not require a finding that the representations were so "patently and obviously false that he must have closed his eyes to avoid the discovery of the truth." Hickox, supra.
The defendants further claim that the jury verdict was decidedly against the great weight and preponderance of the evidence, even when viewed in a light most favorable to the plaintiff. Because or the testimony as set forth in detail above, we can not agree.
Amendment of the Complaint/Proper Pleading
The defendants complain that the trial court erred in granting the plaintiff's motion to amend the complaint to conform to the evidence presented at trial. This issue is clearly resolved by Rule 15(b), A.R. Civ.P. Amendments are to be freely allowed. An amendment of the pleadings may be necessary to cause them to conform to the evidence, and a motion to amend may be made by any party at any time, even after judgment. The party objecting to the amendment must satisfy the court that the amendment would prejudice him. The record shows that the trial court perceived no prejudice to the defendants. See Schoen v. Styron, 480 So. 2d 1187 (Ala. 1985); Bischoff v. Thomasson, 400 So. 2d 359 (Ala.1981); B & M Homes, Inc. v. Hogan, 376 So. 2d 667 (Ala.1979). See also Comments, A.R.Civ.P. 15. We perceive no prejudice either.
The defendants also complain that the plaintiff's complaint did not properly allege fraud and that the trial court erred in denying their motion for judgment on the pleadings. The pleading requirements for fraud are found in Rule 9(b), A.R.Civ.P. Specifically, that rule provides: "In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally."
From a review of the complaint, we conclude that the circumstances constituting the fraud were stated with sufficient particularity, and that the court properly denied the defendants' motion for judgment on the pleadings. We also conclude that the court properly submitted the plaintiff's claims to the jury.
Jury Instruction
The defendants assert that the trial court erred in several areas in orally instructing the jury. First, they contend that the trial court charged that if the false representations were made by Mr. Griggs and "adopted" by Mrs. Griggs then she would be equally guilty. When a trial court's oral charge is a correct statement of the law, there is no reversible error. Rule 51, A.R.Civ.P.; see McLemore v. Alabama Power Co., 289 Ala. 643, 270 So. 2d 657 (1972). We further note that in our review of alleged error, where the objected to portion of an oral charge is misleading, abstract or incomplete, reversible error will be determined only from a review of the entire instruction. Alabama Power Co. v. Tatum, 293 Ala. 500, 306 So. 2d 251 (1975).
*161 A review of the record shows that defense counsel admitted that this was a correct statement of the law, but contended that there was no testimony on this point. We disagree. There is evidence that Mr. Griggs had Mrs. Griggs sign the contract and that she was present at the closing when several of the statements were made. Mr. Griggs testified that in the transaction he was representing both himself and Mrs. Griggs. See J.C. Jacobs Banking Co. v. Campell, 406 So. 2d 834, 847 (Ala. 1981) ("[t]he fact that a husband is the agent of the wife may be implied from the circumstances").
Second, the defendants contend that the instructions regarding the law of deceit as it relates to fraudulent "suppressions" or nondisclosure of material facts was in error. Having discussed the defendants' concerns as to this issue in other parts of this opinion, we find this issue to need no further discussion.
Evidence of Renovation/Expert Testimony
The plaintiff testified to the extensive renovations he made to the house, and certain documents were admitted into evidence over the defendants' objections. The defendants claim that this testimony and the records of these expenses were improperly allowed into evidence. The total amount expended was $41,333.71. At trial, defense counsel objected that the amounts had not been shown to be reasonable, that they did not occur after Finley learned of the alleged misrepresentations, and that they were not the recoverable measure of damages under the "benefit of the bargain" rule.
The Griggses also argue error by the trial court in the admission of testimony by Thomas E. Garrett, the plaintiff's real estate expert. The defendants claim that Garrett's testimony regarding the 1989 value was error, and that in fraud actions the "benefit of the bargain" rule is to be used and should only relate to the time the alleged fraudulent acts occurred.
Garrett did testify that in 1989 the cost to run a line to the city sewer connection would be approximately $15,000. Because the subdivision closest to the Finley property did not exist in 1985, he did not attempt to calculate what the cost would have been in 1985. He valued the property at a 1989 price with adequate sewer at $135,000 and without sewer at $92,500. However, Garrett also testified that the 1985 value of the property with an adequate sewer facility would have been $90,000, and $60,000 without a sewer facility. The defendants overlook the testimony of Mr. Garrison, who also determined the cost generally of installing a sewer line to the plaintiff's property from the closest city connection.
We hold that the general measure of damages for fraud includes all damages within the contemplation of the parties or which are the necessary or natural and proximate consequences of the wrong. This is a factual determination to be made by the jury. Reinhardt Motors, Inc. v. Boston, 516 So. 2d 509, 511 (Ala.1986); Winn-Dixie Montgomery, Inc. v. Henderson, 371 So. 2d 899 (Ala.1979). There was sufficient evidence to support the jury's award of compensatory damages, given the actual value of the property without a septic tank in 1985 of $60,000, the cost of installing an individual septic system on the property, or the cost of connecting to the closest municipal sewer line, estimated in Mr. Garrison's opinion to be $25,250. Garrison testified that he could not take into consideration the extra costs of blasting through the rock to lay the sewer line because of the inability to judge how much blasting was needed and how much the engineer's cost would be to direct and control the blasting. These additional costs, while unknown, are not speculative, and clearly add to the prior figures to exceed $70,000. There was also testimony that there was no guarantee that any individual septic system would work. The plaintiffs could be left attempting to remedy the problem by trial and error. The evidence above was presented to the jury and supports the award, regardless of the testimony concerning the plaintiff's renovations.
*162 Excessive Damages
The defendants contend that the verdict was excessive, and plainly and palpably wrong as a matter of law because, they say, it included sums that were not unsupported by the evidence. They further assert that the verdict resulted from bias, passion, prejudice, corruption, or other improper motive.
A decision by the trial court to allow the verdict to stand should not be overruled unless the verdict amount is so excessive or so inadequate as to indicate prejudice, partiality, passion, or corruption on the part of the jury. As we stated in Hammond, supra, "The authority to disturb a jury verdict on the ground of excessive damages is one which should be exercised with great caution. Id., citing Airheart v. Green, 267 Ala. 689, 104 So. 2d 687 (1958). The trial court is in the best position to observe all the witnesses and other incidents not reflected in the record." Hammond at 1378.
The defendants assert that the award of punitive damages was excessive, that the award could not be made jointly and severally, and it was error for the trial court not to order a new trial or a remittitur. Additionally, they contend that the trial court did not state on the record the factors considered by it in awarding the punitive damages.
This court has recognized that, if the misrepresentation is shown to have been made with knowledge that it is false, then the law permits punitive damages by way of punishment. Reinhardt Motors, Inc., supra, at 512; Alabama Farm Bur. Mut. Cas. Ins. Co. v. Griffin, 493 So. 2d 1379, 1384 (Ala.1986); Big Three Motors, Inc. v. Smith, 412 So. 2d 1222, 1224 (Ala. 1982). There was sufficient evidence in the record to allow the jury to determine that the Griggses knowingly made certain representations regarding the septic tank and the right-of-way with an intent to deceive.
Because the verdict included an award for punitive damages, Ala.Code (1975), § 6-11-23(b), is applicable. That section provides:
There is no statutory or judicial requirement that the trial court detail its findings in a written order more specific than the oral order given here by the trial court. The record shows that a hearing was conducted for the trial court to hear evidence pursuant to Hammond, supra. Hammond requires only that the trial court "reflect in the record the reason for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages." 493 So. 2d at 1379. See also, D. Carr, Punitive Damages and Post-Verdict Procedures: Where Are We Now and Where Do We Go From Here?, 51 Ala. Lawyer 90 (1990). Both defendants had previously testified at length in the trial of the case and then testified again later at the damages hearing as to their ability to pay the award. The attorneys were allowed to orally argue further points not specifically set out in the record.
The trial judge stated his findings as to the punitive damages award for the record as follows:
We find that the trial court's ruling with regard to the punitive damages award was proper. See Land & Associates, Inc. v. Simmons, 562 So. 2d 140 (Ala.1989).
From a review of the entire record, we find that the evidence was sufficient to support the award of $70,000 compensatory damages and $100,000 punitive damages. See McDowell v. Key, supra.
Therefore, the judgment in this case is due to be affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur. | June 8, 1990 |
75f3a037-b117-4f4d-a47b-0225b6e65f48 | Ex Parte Hamm | 564 So. 2d 469 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 469 (1990)
Ex parte Doyle Lee HAMM.
re Doyle Lee Hamm
v.
State.
88-1555.
Supreme Court of Alabama.
March 23, 1990.
As Modified on Denial of Rehearing June 15, 1990.
*471 Martha E. Williams and Hugh C. Harris, Cullman, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little and Sandra J. Stewart, Asst. Attys. Gen., for respondent.
ALMON, Justice.
Doyle Lee Hamm was convicted of the capital offense of murder during a robbery in the first degree and was sentenced to die in the electric chair. The Court of Criminal Appeals affirmed the judgment, 564 So. 2d 453, and Hamm petitioned this Court for certiorari review as a matter of right. A.R.App.P., Rule 39(c).
Hamm presents three claims of error: (1) that his indictment failed to properly aver a capital offense under the facts of this case; (2) that the warrant authorizing his initial arrest was issued without probable cause and failed to comply with Ala.Code 1975, §§ 15-9-40 and -42, and that, therefore, his subsequent confession should have been suppressed; and (3) that evidence seized following his arrest should have been suppressed because the search warrant was issued without probable cause.
A lengthy statement of the facts is unnecessary because of the thorough statement contained in the opinion of the Court of Criminal Appeals. Hamm v. State, 564 So. 2d 453 (Ala.Cr.App.1989).
Hamm argues that the indictment was defective because it did not allege that the owner of the property that was stolen and the person against whom force was used were the same. However, as the Court of Criminal Appeals pointed out, the statutes that define the elements of first degree robbery do not require that the person against whom force is used be the owner of the stolen property. Ala.Code 1975, §§ 13A-8-41(a) and -43(a); Raines v. State, 429 So. 2d 1104, 1106 (Ala.Cr.App.), aff'd, 429 So. 2d 1111 (Ala.1982), cert. denied, 460 U.S. 1103, 103 S. Ct. 1804, 76 L. Ed. 2d 368 (1983).
One of the functions of an indictment is to adequately inform the accused of the crime charged so that a defense may be prepared. Ex parte Washington, 448 So. 2d 404, 407 (Ala.1984). A variance in the form of the offense charged in the indictment and the proof presented at trial is fatal if the proof offered by the State is of a different crime, or of the same crime, but under a set of facts different from those set out in the indictment. Ex parte Hightower, 443 So. 2d 1272, 1274 (Ala.1983). Such is not the case here. An incorrect averment of ownership is not always a material variance. McKeithen v. State, 480 So. 2d 36 (Ala.Cr.App.1985). Nor is there a material variance when the indictment states that the property was owned by a business and the proof shows that it was taken from an employee of that business, as long as the offense is described with sufficient certainty to identify the act of robbery and to establish that the property was in the immediate actual possession of the person against whom force was used. Moseley v. State, 357 So. 2d 390 (Ala. Cr.App.1978). This indictment adequately apprised Hamm of the crime charged.
Hamm was arrested pursuant to a fugitive arrest warrant that was issued for an armed robbery allegedly committed by Hamm in Mississippi. Soon after that arrest, he was charged with the instant robbery and the murder of Patrick Joseph Cunningham. The following day, after signing a waiver form that acknowledged that he understood his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Hamm gave the police a detailed statement, during which he confessed to those crimes.
Hamm sought to have his confession suppressed, arguing that the arrest warrant was issued without probable cause and did not comply with Ala.Code 1975, §§ 15-9-40 and -42. That motion was denied by the trial court, and that ruling was affirmed by *472 the Court of Criminal Appeals. Although this Court agrees with the Court of Criminal Appeals' decision on this issue, we do not agree with part of the rationale offered by that court in support of its decision. The Court of Criminal Appeals held that Hamm lacked standing to challenge the validity of the arrest warrant because he did not show that he was legally in his nephew's trailer at the time he was arrested. Hamm v. State, supra, at 458.
This Court does not agree with that court's interpretation of the safeguards against unreasonable arrests in the fourth amendment to the Constitution of the United States and Article I, Section 5, of our state constitution. Although it is settled that a defendant lacks standing to challenge a search unless he has a reasonable expectation of privacy in the premises searched, Ex parte Collier, 413 So. 2d 403, 404 (Ala.1982), that analysis does not apply to situations where, as in the instant case, the defendant is challenging the validity of a warrant for the seizure of his person. The constitutional guarantees against unreasonable seizures, and against the issuance of arrest warrants without probable cause, are personal rights. Terry v. Ohio, 392 U.S. 1, 8-9, 88 S. Ct. 1868, 1873, 20 L. Ed. 2d 889, 898-99 (1968). The defendant's location at the time of his arrest has little, if any, relevance in determining whether an arrest was valid, unless his presence in that location constituted a felony.[1] Therefore, we find that Hamm does have standing to challenge the validity of his arrest.
The main thrust of his illegal arrest argument is that the warrant in possession of the arresting officer at the time of the arrest did not comply with § 15-9-40 because the judge issuing the warrant did not have before him a certified copy of the sworn charge and affidavit from the foreign state.
Section 15-9-40 appears in the Code under Article 2 of Chapter 9 of Title 15, with other related statutes dealing with extradition of fugitives from justice from and to this jurisdiction. Those statutes contemplate that a person has been charged with a crime in another state and has fled to this jurisdiction, and that the executive authority of the foreign state (the Governor) is attempting to extradite the fugitive from this state to the foreign state. Usually, in such a situation, the state officials here know little or nothing about the fugitive or whether he has committed a crime at all. Section 15-9-40, entitled "Arrest prior to requisition," contains certain strictures, applicable when a fugitive is sought for extradition, for issuing a warrant before the foreign Governor's extradition papers have arrived in this state. That section is not conclusive on the subject of the arresting authority of police officers in general.
In fact, the very next section of the Code, § 15-9-41, authorizes an arrest "without a warrant upon reasonable information that the accused stands charged with a crime punishable by death or life imprisonment in the courts of another state." When Hamm was arrested, the police had a written communication from the Mississippi authorities indicating that he had been charged with a capital offense in Mississippi, and, in addition, they had probable cause to believe that he had committed another capital offense in Cullman, Alabama. Police officers in this jurisdiction may arrest any person without a warrant on any day and at any time when a felony has been committed and the officer has reasonable cause to believe that the person arrested committed it. Ala.Code 1975, § 15-10-3. Thus, even if it be conceded that the arrest warrant was defective, the arrest was valid without a warrant, under either § 15-9-41 or § 15-10-3. The police officers clearly had probable cause to believe that Hamm had committed a capital felony in this jurisdiction. It follows then that Hamm's subsequent confession was not rendered inadmissible as a result of an illegal arrest.
Hamm's final contention is that the search warrant that authorized the search *473 of his nephew's trailer was issued without probable cause, and, therefore, that all of the evidence discovered during that search should have been suppressed.
As noted by the Court of Criminal Appeals, the threshold question in determining if a search has violated a defendant's fourth amendment rights is whether that defendant has standing to challenge the search. Hamm v. State, supra, at 462-463. In Rakas v. Illinois, 439 U.S. 128, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), the Supreme Court stated that only those individuals whose own fourth amendment rights may have been violated have standing to challenge the legality of a search and seizure. The defendant who is seeking to suppress the evidence obtained in the search has the burden of showing that his own fourth amendment rights were violated. Rakas, n. 1, 439 U.S. at 131, 99 S. Ct. at 424, 58 L. Ed. 2d at 393.
Hamm did not meet that burden. This Court agrees that the evidence produced indicates that Hamm was not lawfully on the premises searched and therefore had no reasonable expectation of privacy. Hamm v. State, supra, at 459. Therefore, we need not address whether the search was valid. Ex parte Cochran, 500 So. 2d 1179, 1183 (Ala.1985), on remand, Cochran v. State, 500 So. 2d 1188 (Ala.Cr.App.), aff'd, 500 So. 2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033, 107 S. Ct. 1965, 95 L. Ed. 2d 537 (1987).
This Court has examined the record of the proceedings below and has found no plain error or defect warranting reversal. The crime committed by Hamm, murder during the commission of first degree robbery, is an offense punishable by death in this state. Ala.Code 1975, § 13A-5-40(a)(2); Hooks v. State, 534 So. 2d 329 (Ala.Cr.App.1987), aff'd, 534 So. 2d 371 (Ala.1988), cert. denied, 488 U.S. 1050, 109 S. Ct. 883, 102 L. Ed. 2d 1005 (1989). In addition, there were sufficient aggravating circumstances present to warrant the imposition of that penalty. As noted by the trial court and the Court of Criminal Appeals, Hamm had been previously convicted in the state of Tennessee of two felonies that involved the use or threat of violence against another person. Hamm v. State, supra, at 466. Such prior convictions are included as aggravating circumstances under § 13A-5-49(2).
Although the record does not contain any evidence of the mitigating circumstances enumerated in § 13A-5-51, there is evidence of some mitigating circumstances not listed in that statute. However, this Court agrees with the trial court and the Court of Criminal Appeals that those mitigating circumstances do not outweigh the aggravating circumstances. Hamm v. State, supra, at 463-464. We also find that the State produced more than sufficient evidence to support both the conviction and the sentence, and we find no evidence that the conviction or sentence was the result of bias, passion, or any other arbitrary factor. Section 13A-5-53(b)(1). Finally, although Hamm's co-defendant received only a life sentence, Hamm's function as the "triggerman" in this crime justifies the imposition of the more severe penalty. Ex parte Thomas, 460 So. 2d 216 (Ala.1984).
For the reasons stated, the judgment of conviction and the sentence of death are hereby affirmed.
AFFIRMED.
All of the Justices concur.
ALMON, Justice.
HAMM'S APPLICATION FOR REHEARING OVERRULED; STATE'S APPLICATION, REQUESTING MODIFICATION, GRANTED; OPINION MODIFIED.
All of the Justices concur.
[1] The cases and other authority cited by the Court of Criminal Appeals concerned a defendant's standing to challenge the legality of a search. | June 15, 1990 |
f29479d8-7e17-4b77-9d04-d49410c17147 | Schwertfeger v. Moorehouse | 569 So. 2d 322 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 322 (1990)
Edgar A. SCHWERTFEGER, Jr.
v.
John David MOOREHOUSE and Julie Marie Moorehouse, d/b/a Seymour Company.
89-32.
Supreme Court of Alabama.
July 27, 1990.
Rehearing Denied September 21, 1990.
Jerry L. Cruse, Montgomery, for appellant.
Edward B. Parker II of Parker & Brantley, Montgomery, for appellees.
PER CURIAM.
Edgar A. Schwertfeger, Jr., appeals from a judgment based on a jury verdict awarding John David Moorehouse and Julie Marie Moorehouse, d/b/a Seymour Company, damages for the conversion of two vending machines. The jury returned a verdict of $750 in compensatory damages and $25,000 in punitive damages. On appeal, Schwertfeger raises issues regarding the sufficiency of the evidence, the jury charges, certain evidentiary matters, and an alleged excessiveness of the punitive damages award. We affirm.
Because of the recent spread of the AIDS virus, John David Moorehouse, a physician, decided to invest in condom vending machines. He said he believed that by providing condoms through vending machines in an "upscale market" he could serve two purposesto assist in the prevention of AIDS and to earn a good return on an investment.
John David Moorehouse and his wife, Julie Marie Moorehouse, d/b/a Seymour *323 Company, purchased 20 condom vending machines from Ambassador New Vending Company (hereinafter "Ambassador") through its salesman Charlie Williams. The agreement between the Moorehouses and Ambassador provided that Ambassador's subcontractor would place the machines in various locations.
During the course of the negotiations for the sale of the machines, Williams allegedly made fraudulent representations to the Moorehouses concerning the quality and placement of the vending machines. The Moorehouses eventually sued Ambassador and Williams. That lawsuit was settled, and Ambassador agreed to buy back the vending machines and return the Moorehouses' deposit. With the Moorehouses' permission, Williams agreed to locate, retrieve, and return the machines to Ambassador.
Two of the vending machines were placed in a business called the "Rebel Lounge" owned by Edgar A. Schwertfeger, Jr. On his first attempt to retrieve the two machines from that business location, Williams found that the Rebel Lounge was locked and that no business was being operated there. Williams later determined that Schwertfeger owned the building, and he attempted on several occasions to reach Schwertfeger by telephone but was able only to leave messages for him.
Williams finally talked with Schwertfeger and attempted to arrange for the retrieval of the two vending machines. In his conversation with Williams, Schwertfeger used abusive language, stating "you're talking about those goddamn rubber machines. I wouldn't make a special trip for you or for Jesus Christ to get the machines." Schwertfeger made it clear to Williams that he was not going to grant Williams access to his building to retrieve the vending machines.
On August 29, 1988, the Moorehouses directed their attorney to notify Schwertfeger in writing that they were the owners of the two machines, that Williams was authorized to retrieve the machines, and that Williams would meet Schwertfeger at a mutually convenient time. That letter was sent by certified mail, and although Schwertfeger denied reading the letter, the return receipt reflected that Schwertfeger had signed for the letter. In September 1988, Schwertfeger called the Moorehouses' attorney. During that telephone conversation Schwertfeger told the Moorehouses' attorney that he was not "going to give those goddamn rubber machines to anybody."
The plaintiffs sued Schwertfeger on November 2, 1988, alleging that Schwertfeger had willfully, wantonly, recklessly, maliciously, and oppressively converted the vending machines by a wrongful exercise of dominion and control over them to the exclusion of the plaintiffs or in defiance of their right to possession. Schwertfeger answered the complaint, setting forth a general denial of the plaintiffs' allegations.
Following further pleading and discovery, the case proceeded to trial. At the close of the plaintiffs' evidence, Schwertfeger made an oral "motion for summary judgment" which was denied by the trial court. After the conclusion of the trial, the jury returned a verdict in the amount of $750 plus interest at 6% from September 14, 1988, in compensatory damages and $25,000 in punitive damages. Schwertfeger filed a motion for judgment notwithstanding the verdict, a motion for new trial, and a motion for the court to independently reassess the punitive damages award. After post-trial discovery and a hearing to reassess the punitive damages award, the trial judge denied the motions.
Although Schwertfeger raises several issues concerning the sufficiency of the evidence of conversion, we are unable to review any of those issues.
It is well settled that a motion for directed verdict must be made at the close of all the evidence and that a timely post-trial motion for judgment notwithstanding the verdict must be subsequently made before an appellate court may consider on appeal questions regarding the sufficiency of the evidence to support the jury's verdict. Barnes v. Dale, 530 So. 2d 770, 776 (Ala. 1988); Bains v. Jameson, 507 So. 2d 504 *324 (Ala.1987); Great Atlantic & Pacific Tea Co. v. Sealy, 374 So. 2d 877, 880-82 (Ala. 1979). We have reviewed the record and cannot ascertain therefrom that Schwertfeger moved for a directed verdict at the close of all the evidence. Therefore, this Court is precluded from reviewing Schwertfeger's issues regarding the sufficiency of the evidence.
Schwertfeger also argues that the trial court erred in permitting the Moorehouses to introduce into evidence a letter from the Moorehouses' attorney to Schwertfeger dated August 29, 1988, because the discovery was not exchanged in accordance with the pretrial order. The trial court allowed an amendment to the Morehouses' exhibit list 13 days before trial in accordance with the pretrial order "to prevent manifest injustice." We note that the trial court also permitted Schwertfeger to call witnesses and use exhibits at trial from the Moorehouses' witness list, even though he had failed to file a witness list. After reviewing the record, we cannot say that the trial court abused its discretion by permitting the Moorehouses to introduce the letter into evidence.
Next, we consider Schwertfeger's claim that the trial court erred in refusing his requested jury charges. Although the trial court denied all of Schwertfeger's requested charges, he also denied all of the Moorehouses' charges and instead charged the jury directly from Alabama Pattern Jury Instructions: Civil (1974). We have reviewed the charges requested by Schwertfeger and the charges actually given by the trial court and conclude that the charges as given adequately covered the applicable principles of law.
Finally, Schwertfeger argues that the jury should not have awarded punitive damages and that the damages awarded were excessive. Punitive damages are recoverable in a conversion case when the evidence shows legal malice, willfulness, insult, or other aggravating circumstances. Rainsville Bank v. Willingham, 485 So. 2d 319 (Ala.1986). The amount of a punitive damages award is within the sound discretion of the jury, which may consider all attendant circumstances. Roberson v. Ammons, 477 So. 2d 957, 961 (Ala.1985). The purpose of a punitive damages award is to punish the wrongdoer, based on the enormity of the wrong, and to prevent similar wrongs from being committed in the future. Id.
After post-trial discovery and a hearing, the trial court ruled that the damages award was not to be reduced or set aside. The trial court's order stated in part:
The trial court, pursuant to Ala.Code 1975, § 6-11-23, conducted the hearing to independently reassess the award of punitive damages. We can find no error in the trial court's refusal to remit the punitive damages award.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ADAMS and STEAGALL, JJ., concur. | July 27, 1990 |
3da91312-55a5-4b8f-8a18-4ded36958d9b | Ex Parte King | 564 So. 2d 928 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 928 (1990)
Ex parte John Wesley KING and Joey Thomas King.
Re John Wesley King and Joey Thomas King
v.
State.
89-257.
Supreme Court of Alabama.
June 22, 1990.
*929 W. Gregory Hughes, Mobile, for petitioners.
Don Siegelman, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for respondent.
JONES, Justice.
We granted the writ of certiorari to take a closer look at the petitioners' argument that the "trial court erred in consolidating the defendants' cases for trial in the absence of the defendant, Joey King." In support of their argument, the petitioners seize upon the last sentence found in Rule 15.4(b), Temporary Alabama Rules of Criminal Procedure. That rule provides as follows:
(Emphasis added.)
The record tends to show the following: In May 1986, the defendants were separately indicted for first degree robbery. Code 1975, § 13A-5-9. Following a guilty verdict and a judgment thereon, an appeal was filed with the Court of Criminal Appeals. On December 4, 1987, the Court of Criminal Appeals reversed, holding that a jury charge was defective. On April 1, 1988, this Court denied the State's petition for writ of certiorari.
On May 26, 1988, the State filed a motion to consolidate the defendants' cases on retrial. On July 1, 1988, a hearing was held on the State's motion. At that hearing, the defendants' lawyer made the following objection:
Subsequently thereto, the trial court granted the State's motion to consolidate. Both defendants were later convicted of first degree robbery and were sentenced to life imprisonment without parole under the Habitual Felony Offender Act. The Court of Criminal Appeals affirmed the convictions, without an opinion. 553 So. 2d 140 (1989).
*930 The dispositive issue is whether temporary Rule 15.4(b) requires that a defendant has the right to be present at a consolidation hearing, even in cases where that defendant is represented by counsel.
The petitioners insist that the Court of Criminal Appeals' affirmance of this case is contrary to this Court's opinion in Ex parte Jones, 473 So. 2d 545 (Ala.1985), and its own opinion in Blackmon v. State, 487 So. 2d 1022 (Ala.Cr.App.1986). We disagree. Jones's lawyer was not given notice of the State's motion to consolidate until after the hearing on the motion had taken place and the trial judge had ordered the consolidation.[2]
On the day of the trial, Jones's lawyer filed with the trial court a motion for severance based on the fact that neither he nor his client had received notice of the hearing on the motion to consolidate. At that time, the trial judge belatedly allowed Jones's lawyer the "opportunity to be heard." Subsequently thereto, the motion for severance was denied. The Court of Criminal Appeals affirmed the judgment of the trial court. See Jones v. State, 473 So. 2d 541 (Ala.Cr.App.1984). This Court granted the defendants' petition for writ of certiorari and subsequently reversed their convictions. See Ex parte Jones, 473 So. 2d 545 (Ala.1985). In Ex parte Jones, Justice Embry, speaking for a unanomous Court, explained the reasoning behind the reversal:
Id. at 546.
Subsequently, the Court of Criminal Appeals, in Blackmon v. State, 487 So. 2d 1022 (Ala.Cr.App.1986), dealt with an alleged noncompliance with Rule 15.4(b) thusly:
(Emphasis added.)
This Court's opinion in Ex parte Jones and the Court of Criminal Appeals' opinion in Blackmon v. State, while sound, provide, at best, only a modicum of support for the petitioners' position. Admittedly, both cases stress strict compliance with Rule 15.4(b), A.R.Cr.P.Temp.; however, we believe that the facts and circumstances underlying the present controversy are readily distinguishable from the facts and circumstances found in Ex parte Jones and Blackmon v. State and, thus, do not control this case.
*931 In Ex parte Stout, 547 So. 2d 901 (Ala. 1989), this Court answered, in the affirmative, the question whether a defendant has the constitutional right to be present at a pretrial suppression hearing at which sworn testimony of a prosecution witness is taken. In so holding, this Court distinguished two cases relied upon by the Court of Criminal Appeals in Stout v. State, 547 So. 2d 894 (Ala.Cr.App.1988), as follows:
547 So. 2d at 902-03. (Emphasis added.)
The linchpin of the Ex parte Stout decision is the principle that a defendant's right to be present and to confront adverse witnesses at an evidentiary hearing is constitutionally protected. Here, however, as was the case in Maund and Johnson, supra, the consolidation hearing necessitated only arguments of law. Hence, this Court's opinion in Ex parte Stout, supra, is inapplicable to the facts of this case.
In the instant case, both defendants were represented by the same lawyer at the consolidation hearing. A review of the record reveals that the lawyer fully appreciated the ramifications of consolidation and, in fact, did an admirable job in arguing the applicable law and asserting viable reasons why consolidation would not be in either of his clients' best interests. Hence, we are clear to the conclusion that the defendants, speaking through their lawyer, were afforded an "opportunity to be heard." In essence, if a defendant is represented by his lawyer at a consolidation hearing, the "opportunity to be heard" requirement set out in Rule 15.4(b) is satisfied. If, on the other hand, a defendant is proceeding pro se, Rule 15.4(b) would demand that defendant's presence at the consolidation hearing.
The judgment of the Court of Criminal Appeals is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] No objection was made on behalf of John Wesley King, because he was out on bond and apparently had voluntarily chosen not to attend the hearing.
[2] The attorney for co-defendant Bryant was present for the hearing only because he happened to be in the courthouse at that time on another case. | June 22, 1990 |
79cc1a6d-6989-43b9-b39e-c81e5a448fce | Ag-Chem Equip. Co. v. LIMESTONE FARMERS CO-OP | 567 So. 2d 250 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 250 (1990)
AG-CHEM EQUIPMENT COMPANY, INC., and Big A Equipment Company, Inc.
v.
LIMESTONE FARMERS COOPERATIVE, INC.
88-1096.
Supreme Court of Alabama.
June 8, 1990.
Rehearing Denied August 31, 1990.
*251 Winston V. Legge, Jr. of Patton, Latham, Legge & Cole, Athens, for appellants.
Jimmy Alexander and Linda B. Lloyd of Alexander, Corder & Plunk, Athens, for appellee.
KENNEDY, Justice.
This is an appeal of a judgment entered on a jury verdict in favor of the plaintiff. We reverse and remand.
Limestone Farmers Cooperative, Inc. ("Limestone"), bought a fertilizer applicator machine from Ag-Chem Equipment, Inc., and its subsidiary, Big A Equipment Company (hereinafter together referred to as "Ag-Chem"). Ag-Chem manufactured the machine. The engine in the applicator was manufactured by Cummins Engine Company, Inc. ("Cummins"), and was installed by Ag-Chem. The purchase price of the applicator was $100,160, which was paid by a down payment of $6,165, a subsequent check for $55,485, and a trade-in allowance of $38,510 on a 1977 Big A model fertilizer applicator. Ag-Chem expressly warranted the machine to be free from defects in material and workmanship for 180 days from the first date used or for 2,400 miles or 300 hours of operation, whichever came first. Cummins warranted that the engine would be free from defects in workmanship or material for two years or for 2,000 hours of operation from the date of delivery, whichever came first.
After approximately 450 hours and 4,054 miles of use, an Ag-Chem representative inspected the applicator. At this point, the engine was in good working order. Within three months of the inspection, and after approximately 650 hours of operation, the engine had "blown." Limestone's assistant manager had the machine transported to a Cummins dealership in Decatur. The Cummins representatives determined that a rubber elbow had been incorrectly installed and that it had allowed dirt to enter the engine and that the dirt had caused the engine to blow. It is undisputed that Ag-Chem incorrectly installed the rubber elbow when the applicator was new. Ag-Chem offered to pay for Cummins to rebuild the engine, but Limestone refused, insisting that it was entitled to a new engine. Ag-Chem then sent Limestone a check for $3,615.30, the amount it estimated it would cost to rebuild the engine. Limestone never cashed the check, but ordered a new engine from Cummins at a purchase price of $13,886.
Limestone sued Cummins, alleging a breach of the express warranty Cummins had given on the engine. Limestone also sued Ag-Chem and Big A alleging a breach of express warranty, breach of warranty of fitness for a particular purpose, and negligent inspection of the applicator.
At the conclusion of the plaintiff's case-in-chief, the trial court directed a verdict in favor of Cummins on the express warranty count, thereby releasing Cummins from the case. The court also directed verdicts in favor of Ag-Chem and Big A on each count except the breach of express warranty count. After deliberation on the breach of warranty count, the jury returned a verdict against Ag-Chem and Big A for $26,218.64. The trial court denied the defendants' motion for a new trial, and this appeal followed.
The evidence at trial showed that Ag-Chem improperly installed the rubber elbow that caused the engine to malfunction. Ag-Chem does not dispute that it improperly installed the rubber elbow, and coverage under the warranty, therefore, is not an issue. Where coverage under the warranty is not at issue, we must determine what damages are recoverable for breaching the warranty. However, to determine the amount of damages, we must first determine if the warranty failed of its essential purpose.
*252 In order to show that the warranty failed of its essential purpose, Limestone must either show that the dealer refused to repair or replace the engine in accordance with the warranty or that the dealer did not repair the engine within a reasonable time. Liberty Truck Sales, Inc. v. Kimbrel, 548 So. 2d 1379 (Ala.1989). Limestone argues that the first requirement of Kimbrel was met, because Ag-Chem refused to replace the engine with a new engine, which Limestone argues was required by its warranty.
However, the warranty from Ag-Chem, in pertinent part, states the following:
The warranty clearly states that Ag-Chem may repair or replace any part that shows evidence of improper workmanship. The warranty further states that Ag-Chem will not be liable for any amount in excess of the cost of repairing the defects.
Code of Alabama 1975, § 7-2-719(1)(a), states the following with regard to limitation of remedies:
Thus, barring a failure of the warranty's essential purpose, Ag-Chem was under no duty, under the warranty, to replace the engine with a new engine. If, however, Ag-Chem had refused to repair the engine in accordance with the warranty or had refused to repair within a reasonable time, its warranty would have failed of its essential purpose, and Limestone would have been entitled to a new engine. Volkswagen of America, Inc. v. Harrell, 431 So. 2d 156, 164 (Ala.1983).
In the present case, it is undisputed that Limestone never tendered the engine to Ag-Chem so that the engine could be repaired. Limestone presented testimony that it did not tender the engine because, it said, on previous occasions, it had experienced problems with another rebuilt Cummins engine and did not want this engine rebuilt. In addition, Limestone presented testimony that the value of the fertilizer applicator would be reduced if it had a rebuilt engine.
This testimony notwithstanding, the fact remains that Limestone never gave Ag-Chem the opportunity to rebuild the engine in accordance with the warranty. On more than one occasion, Ag-Chem offered to rebuild the engine. Ag-Chem then sent Limestone a check for $3,615.30 to cover the cost of the repair work, but Limestone refused to take the engine to Cummins for repair. Under the terms of the warranty between Ag-Chem and Limestone, Ag-Chem fulfilled its obligation to repair the engine, and it may be held liable only for the cost of fully repairing the engine.
Accordingly, we hold that the express warranty did not fail of its essential purpose and that Ag-Chem's liability may not exceed the cost of repairing the engine. The judgment is hereby reversed and the cause remanded for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | June 8, 1990 |
9be45063-550e-4bc2-8bb1-f6dcc0052c27 | Ex Parte Rice | 565 So. 2d 606 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 606 (1990)
Ex parte Cornelius RICE.
Re Cornelius Rice
v.
State.
89-794.
Supreme Court of Alabama.
June 22, 1990.
Elizabeth H. Shaw, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for respondent.
ALMON, Justice.
This Court issued a writ of certiorari to review the denial of Cornelius Rice's Temp. Rule 20, Ala.R.Crim.P., petition.[1] The denial *607 of that petition was affirmed by the Court of Criminal Appeals, without opinion. Rice v. State, 555 So. 2d 1205 (Ala.Crim. App.1989). The questions presented are whether that denial violated Rice's due process rights and whether the State satisfied its burden of pleading under Rule 20.3.
Rice had been convicted of first degree robbery and had been sentenced to 20 years in the penitentiary. His conviction and sentence were affirmed by the Court of Criminal Appeals, without opinion. Rice v. State, 502 So. 2d 405 (Ala.Crim.App. 1986), cert. denied, 514 So. 2d 345 (Ala. 1987). Rice later filed this pro se Rule 20 petition, arguing that his conviction was due to be reversed because of a number of alleged violations of his constitutional rights that he claims occurred during his arrest and prosecution. In its response the State argued that Rice's petition should be dismissed because he had allegedly failed to state his grounds for relief with the specificity required by Rule 20.6(b). The State also made a general allegation that the petition should be denied "on grounds of preclusion as provided by Rule 20.2." It did not specify which one of the seven separate grounds of preclusion contained in Rule 20.2 it was arguing warranted a denial of Rice's petition.[2]
Rice filed a reply to the State's response, wherein he argued that his petition satisfied the specificity requirement of Rule 20.6(b) and repeated his request for relief. Rice also requested appointed counsel to assist him in the prosecution of his petition. However, no counsel was appointed for Rice, and the trial court issued an order denying his petition. The court apparently rejected the State's Rule 20.6(b) specificity argument, holding:
Rice contends that the denial of his petition on the basis of the State's broad Rule 20.2 allegation constitutes a denial of his right to due process. He maintains that the State's failure to allege a specific ground of preclusion deprived him of the notice to which he was entitled, thus making it impossible for him to disprove the existence of a ground of preclusion. In addition, he argues that the State's blanket allegation did not satisfy the burden of pleading assigned to the State by Rule 20.3, reproduced below:
(Emphasis added.)
The State argues that Rice was not entitled to notice of the specific grounds of preclusion that it planned to rely on when it challenged his petition. The basis of that argument appears to be that the guarantees of the Due Process Clause of the Fourteenth Amendment that operate to protect defendants before their conviction do not also serve to protect individuals once a judgment of conviction has been entered. However, as Justice White stated in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974):
Wolff, 418 U.S. at 555-56, 94 S. Ct. at 2974-75 (citations omitted).
In accordance with that principle, the appellate courts of Alabama have extended the rights inherent in our concept of due process to prisoners filing Rule 20 petitions. See Peoples v. State, 531 So. 2d 323, 326 (Ala.Crim.App.1988) (persons filing Rule 20 petitions cannot be denied access to courts); Johnson v. State, 526 So. 2d 34 (Ala.Crim.App.1987) (right to full evidentiary hearing and assistance of counsel extended to Rule 20 petitioner).
The State also argues that Rule 20.3 does not require it to plead a specific Rule 20.2 ground of preclusion. However, that argument ignores the obvious purpose behind the assignment of the burdens of pleading and proof in Rule 20.3. Under that Rule the State is required to plead the ground or grounds of preclusion that it believes apply to the petitioner's case, thereby giving the petitioner the notice he needs to attempt to formulate arguments and present evidence to "disprove [the] existence [of those grounds] by a preponderance of the evidence." Temp. Rule 20.3, Ala.R.Crim.P. A general allegation that merely refers the petitioner and the trial court to the Rule does not provide the type of notice necessary to satisfy the requirements of due process and does not meet the burden of pleading assigned to the State by Rule 20.3.
For the reasons stated, the judgment of the Court of Criminal Appeals affirming the denial of Rice's Rule 20 petition is reversed, and this cause is remanded with instructions to remand the cause to the circuit court for further proceedings consistent with this opinion.[3]
REVERSED AND REMANDED.
All of the Justices concur.
[1] This Court recently adopted the Alabama Rules of Criminal Procedure to replace the Temporary Rules. That adoption involved a number of changes, including a renumbering of the Rules. For example, petitions for post-conviction remedies, presently governed by Temporary Rule 20, will be governed by Rule 32, Ala.R.Crim.P., beginning January 1, 1991, the effective date of the new Rules.
[2] Rice's petition was not precluded by the limitations provision set out in Rule 20.2(c). That section provides "that the two-year period during which a petition may be brought shall in no case be deemed to have begun to run before the effective date of this Temporary Rule 20 (April 1, 1987)." Rice's petition was filed on March 31, 1989.
[3] If, following remand, Rice's petition is not summarily disposed of pursuant to Rule 20.2 or Rule 20.6(b), the trial court should reconsider Rice's request for appointed counsel in light of Rule 20.7(c). | June 22, 1990 |
029b1e6f-9fe5-4f11-93f9-67a882871614 | Morton v. Prescott | 564 So. 2d 913 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 913 (1990)
Allen F. MORTON
v.
Dr. Cecil H. PRESCOTT.
88-785.
Supreme Court of Alabama.
June 1, 1990.
*914 C. Neal Pope and R. Timothy Morrison of Pope, Kellogg, McGlamry, Kilpatrick & Morrison, Atlanta, Ga., and J. Paul Lowery, Montgomery, for appellant.
Tabor R. Novak, Jr. and Joana S. Ellis of Ball, Ball, Matthews & Novak, Montgomery, for appellee.
ALMON, Justice.
Allen F. Morton appeals from the dismissal of his complaint against Dr. Cecil H. Prescott, a psychiatrist in private practice. Morton's complaint alleged that Prescott had negligently discharged a patient who assaulted Morton after being discharged. Other claims in this action were the subject of Morton v. Jackson Hospital & Clinic, 548 So. 2d 1015 (Ala.1989), in which the facts are stated in full. In brief, the facts are that Prescott admitted Pendarvis Hunter to Jackson Hospital on October 27, 1986, following an altercation between Hunter and another patient at a mental health treatment facility. After unsuccessfully attempting to transfer Hunter to the Veterans' Administration Hospital, Prescott readmitted Hunter to Jackson Hospital on October 31, 1986. Hunter received treatment and was released on November 5, 1986. He assaulted Morton on November 6, 1986.
Morton argues that his complaint should not have been dismissed, because, he says, Prescott breached his duty of due care by discharging Hunter when he posed a danger to society. He alleges that Hunter had a history of violence, that Prescott was aware of that history, and that Hunter was admitted to Jackson Hospital on an emergency basis and could not be controlled. Morton also expressly asks this Court to overrule Donahoo v. State, 479 So. 2d 1188 (Ala.1985), which held that there is no duty to prevent an attack on a third person by an aggressor unless it is known or should be known that the aggressor might be a danger to a specific individual.
In contrast, Prescott argues that Morton's complaint fails to allege any facts tending to show that he owed a duty to Morton, or, assuming arguendo that there was a duty, that he breached that duty. He points out that Hunter was not involuntarily committed and was not the subject of any court order, but was admitted to the *915 hospital for treatment as a voluntary admission patient. He argues that Morton's complaint failed to allege that Morton and Hunter were anything but strangers and that there was no reason to expect that Hunter was a danger to Morton, because Hunter had made no specific threat. He concludes that the trial court correctly found that he owed no legal duty to Morton and that the complaint was properly dismissed.
A review of the complaint supports Prescott's argument that Morton fails to allege that Hunter had made any specific threat to harm Morton. At most the complaint states that Hunter was a violent, dangerous person who posed a danger to the citizens of the community, including Morton. Even assuming that all of these facts and conclusions are true, the allegations are still insufficient to show a legal duty on the part of Prescott to protect Morton from specific harm.
It is settled that for one to maintain a negligence action the defendant must have been subject to a legal duty. Bryant v. Morley, 406 So. 2d 394 (Ala.1981). Absent special relationships or circumstances, a person has no duty to protect another from the criminal acts of a third person. King v. Smith, 539 So. 2d 262 (Ala.1989); Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368 (Ala.1986); Ortell v. Spencer Companies, Inc., 477 So. 2d 299 (Ala.1985); Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala.1984); Berdeaux v. City National Bank of Birmingham, 424 So. 2d 594 (Ala. 1982); Parham v. Taylor, 402 So. 2d 884 (Ala.1981).
In King v. Smith, 539 So. 2d 262 (Ala. 1989), a case similar to this one, this Court declined to hold a psychiatrist liable for the criminal acts of his patient. In that case, it was alleged that Dr. Smith misdiagnosed his patient's dangerous condition and, as a result, did not provide him with proper treatment. The patient, David King, was initially confined in a psychiatric ward of a medical center and was diagnosed as suffering from alcohol abuse and a mild mental impairment. Following that diagnosis, King was released to attend an outpatient alcohol abuse program supervised by Dr. Smith. Because of repeated abnormal behavior, King was confined, reevaluated, and then released to attend the outpatient alcohol abuse program several times over the next six or seven months. It was during one of these release periods that he killed his two daughters and then committed suicide. In affirming the lower court's judgment for Smith, the Court stated that Smith's "minimum personal contacts" with King were insufficient to show a special relationship or circumstances necessary to make Dr. Smith liable for King's criminal acts and subsequent suicide.
One leading case concerning a therapist's liability for the violent actions of a patient is Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976). In that case, the patient told his therapist of his intent to kill a readily identifiable, although unnamed, girl; after he told the therapist, the therapist informed the law enforcement authorities, but failed to warn the girl or her parents. Following this, the patient killed the girl and the girl's parents filed an action against the therapist, among others, for wrongful death. The California Supreme Court held that when a therapist determines or should determine that a patient presents a serious threat of danger to another he has an obligation to use reasonable care to protect the intended victim against such danger.
Later, in Thompson v. Alameda County, 27 Cal. 3d 741, 167 Cal. Rptr. 70, 614 P.2d 728 (1980), the California Supreme Court narrowed the Tarasoff holding. In Thompson a juvenile offender made general threats during his confinement in a county institution regarding his intention to kill someone. Notwithstanding that it was known that the juvenile was dangerous, these threats were not directed to any specific, identifiable person. Later, when the juvenile was released he killed a young boy in his neighborhood. In refusing to extend the Tarasoff reasoning to situations involving unidentifiable victims, the California Supreme Court stated that even in a case where a person had a history of violence, *916 no duty existed when the aggressor had made only general threats of violence directed at non-identifiable victims.
In Donahoo v. State, 479 So. 2d 1188 (Ala.1985), this Court stated that it would follow the line of cases holding that in order to establish liability on the part of state officials a plaintiff must plead and prove that the officials knew or should have known that an aggressor might be a danger to a specific individual. Donahoo concerned an action filed against state officials for damages based on the release and supervision of prisoners who committed murder while out on parole. This Court held that the officials were not liable because there was no allegation that the officials had a reason to know that the prisoners posed a threat to the decedent and, therefore, that the officials did not breach a specific duty. The Court, quoting from Thompson, supra, stated:
Donahoo, 479 So. 2d at 1191.
Although Donahoo concerned an action against state officials, its rationale is applicable to this case. The aggressor in this instance, Hunter, like the agressors in Donahoo and Thompson, made no specific threat of harm to the victim or to any identifiable group of which the victim might have been a member. Apparently, Morton and Hunter were total strangers and Prescott had no reason to know that Hunter would attack Morton. Morton fails to allege that Prescott breached any standard of care in evaluating Hunter.
"Unless a patient makes specific threats, the possibility that he may inflict injury on another is vague, speculative, and a matter of conjecture." Brady v. Hopper, 570 F. Supp. 1333, 1338 (D.Colo.1983), aff'd, 751 F.2d 329 (10th Cir.1984). Once these specific threats are verbalized, then the possibility of harm to third persons becomes foreseeable and the psychiatrist's duty arises. Id. See Doyle v. United States, 530 F. Supp. 1278 (C.D.Cal.1982); Hasenei v. United States, 541 F. Supp. 999 (D.Md.1982); Leedy v. Hartnett, 510 F. Supp. 1125 (M.D.Pa.1981), aff'd, 676 F.2d 686 (3rd Cir.1982); Mavroudis v. Superior Court, 102 Cal. App. 3d 594, 162 Cal. Rptr. 724 (1980); In re Estate of Votteler, 327 N.W.2d 759 (Iowa 1982); Cairl v. State, 323 N.W.2d 20 (Minn.1982). Although we are aware of decisions holding to the contrary, the facts of those decisions, for the most part, are distinguishable from the facts of this case.
In considering a motion to dismiss, a court construes the allegations of the complaint in a light most favorable to the plaintiff, with all doubts and allegations resolved in his favor. Rice v. United Insurance Company of America, 465 So. 2d 1100 (Ala.1984). A complaint should not be dismissed for failure to state a claim unless it appears beyond reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief under some cognizable theory of law. Strain v. Hinkle, 457 So. 2d 394 (Ala.1984).
Accepting the facts alleged in Morton's complaint as true and viewing them in a light most favorable to Morton, we conclude that Prescott did not owe a legal duty to Morton. Therefore, the trial court's dismissal *917 of Morton's complaint is hereby affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, ADAMS and STEAGALL, JJ., concur. | June 1, 1990 |
df27b451-be52-41db-8ce5-92be28ccfcce | Holyfield v. Moates | 565 So. 2d 186 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 186 (1990)
Isaac Luther HOLYFIELD, as administrator of the estate of Roxie Downs, deceased
v.
Dwayne Alan MOATES.
89-166.
Supreme Court of Alabama.
June 15, 1990.
Scott A. Powell of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
Connie Ray Stockham and Joe L. Leak of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
JONES, Justice.
The plaintiff, Isaac Luther Holyfield, as administrator of the estate of Roxie Downs, appeals from a summary judgment in favor of the defendant, Dwayne Alan *187 Moates, on Holyfield's wrongful death claim. Because we resolve the "relation back of the amendment" issue in favor of the plaintiff, we reverse and remand.
For purposes of appeal, the facts are undisputed. On November 14, 1985, Mrs. Roxie Downs, a resident of Chilton County, Alabama, was fatally injured when she was struck by a pick-up truck, driven by Moates, as she attempted to cross U.S. Highway 31 in Clanton. Dollie Rankin Crenshaw, the granddaughter of Mrs. Downs, was appointed administratrix of the deceased's estate by the Chilton County Probate Court. Crenshaw was, at the time of her appointment, and is still, as far as the record reveals, a resident of Chicago, Illinois.
On September 4, 1987, Crenshaw, in her purported capacity as the personal representative of Mrs. Downs, filed suit in the circuit court against Moates for damages for wrongful death, pursuant to Ala.Code 1975, § 6-5-410. On August 17, 1989, Moates moved for summary judgment, contending that, based on Code 1975, § 43-2-22(a), Crenshaw was disqualified to serve as the administratrix of Mrs. Downs's estate because Crenshaw was not a resident of Alabama. Simultaneously with his filing the motion for summary judgment in circuit court, Moates successfully challenged, in the Chilton County Probate Court, the granting of letters of administration to Crenshaw. The probate court revoked the letters granted to Crenshaw and granted letters of administration to Holyfield.
On September 12, 1989, the circuit court entered summary judgment in favor of Moates, holding, in pertinent part:
Holyfield, as administrator of Mrs. Downs's estate, appeals from this judgment of the circuit court.
This case presents an issue of first impression in Alabama: Whether the acts of an administratrix who is "duly appointed" by the appropriate probate court are void or voidable where the administratrix is a nonresident of Alabama and, thus, disqualified under § 43-2-22(a) to serve as administratrix. Resolution of this issue is dependent upon whether the order of the Chilton County Probate Court, issuing letters of administration to Crenshaw, was void ab initio or merely voidable.
In Downtown Nursing Home, Inc. v. Pool, supra; and Brown v. Mounger, supra, we held that to bring a wrongful death action pursuant to § 6-5-410, on behalf of the decedent's heirs, the personal representative must be a duly appointed executor or administrator, and that the failure of the personal representative to be so appointed rendered his acts void. Thus, if the two-year period prescribed by the statute has expired before the representative is "duly appointed," the heirs of the decedent are barred from recovery. The theory behind this rationale is that the acts of a nonappointed personal representative are void, and if the two years has expired, an amendment pursuant to Rule 17(a), A.R. Civ.P., will not "relate back," there being *188 no valid act to which the amendment can relate back. Pool and Brown are factually distinguishable, and we conclude that they do not control the disposition of this case.
Section 12-13-1 establishes the general jurisdiction of probate courts:
The Probate Court of Chilton County clearly had subject matter jurisdiction to issue the letters of administration in this case.
In Broughton v. Merchants National Bank of Mobile, 476 So. 2d 97 (Ala.1985), we held:
476 So. 2d at 101.
It is well settled in Alabama that where the fact of residence does not exist, the grant of letters of administration is not void, but merely voidable, subject to a direct attack for that purpose. Coltart v. Allen, 40 Ala. 155 (1866); and City of Bessemer v. Clowdus, 258 Ala. 378, 63 So. 2d 355 (1953). The rationale of Coltart and its progeny is based upon the premise that the probate courts are courts of general jurisdiction, and whether a particular probate court has jurisdiction over a case depends upon whether the deceased was a resident of the county served by that court. Upon a probate court's determining that it has jurisdiction over a case, that determination, right or wrong, is not "void," but rather "voidable."
We see no reason why the same rationale should not be followed in the instant case. Mrs. Downs was a resident of Chilton County, where the petition requesting the letters of administration was filed. Thus, as we have already observed, the Probate Court of Chilton County certainly had subject matter jurisdiction. When a court that has jurisdiction over a case renders an erroneous judgment, that judgment is not void, but rather voidable upon a direct attack or on appeal.
There is nothing jurisdictional about § 43-2-22. While the statute prescribes the fitness of an administrator to serve, it does not prescribe jurisdictional requisites of the probate courts. Violation of § 43-2-22 by the probate court is simply an incorrect application of the law, subject only to a direct attack and/or appeal, as are erroneous judgments rendered by other courts of general jurisdiction.
The order of the Probate Court of Chilton County was voidable only, and not void; thus, it follows that the acts of Crenshaw pursuant to that order were merely voidable. Herein lies the distinction between Pool and Brown, on the one hand, and the instant case, on the other. In both Pool and Brown, the purported plaintiffs, although calling themselves the personal representatives, were suing individually without acting in any duly appointed capacity to represent the respective estates there involved. Here, although erroneously granted, the letters of administration were, in fact, issued.
*189 The term "jurisdiction" has often been the source of considerable confusion. In its broadest sense, jurisdiction refers to the court's power to act. Traditionally, when used in this sense, jurisdiction was determined by the use of a two-step analysis. "General jurisdiction" referred to the scope of the court's authority. The pertinent inquiry was whether the subject matter in question fell within that broad range of cases in regard to which the court was legally empowered to act and adjudicate controversies. The second step, "particular jurisdiction," went beyond the broad subject matter issue and touched upon the particular facts of a given case; in that step the pertinent inquiry concerned the appropriateness and fitness of the parties, the requisite elements of the offense or claim asserted, and the method by which a party sought to invoke jurisdiction.
At the risk of some degree of oversimplification, we can state, as a general proposition, that whether the second step of the two-step test is employed in determining jurisdiction is oftentimes absolutely vital to the ultimate validity and consequences of the court's judgment. If, for example, step one is the exclusive test of jurisdiction, and that part of the test is satisfied even though the second part of the test is not met, then the judgment rendered is voidable merely and not void. If, on the other hand, the test of jurisdiction retains both aspects of the two-step analysis, and either part of the test is not met, then the challenged action by the court is rendered void ab initio.
A better example of the application of the test of jurisdiction could hardly be found than in the two cases of Ex parte Dison, 469 So. 2d 662 (Ala.1984); and City of Dothan v. Holloway, 501 So. 2d 1136 (Ala.1986). The Dison Court, employing the two-step analysis, voided the criminal convictions at issue there. The Holloway Court, reexamining and overruling Dison, abandoned the second step of the analysis, and thus paved the way for the application of the doctrine of waiver with respect to the defects in the charging instrument. For a full discussion of the dichotomy between "general jurisdiction" and "particular jurisdiction," see Justice Beatty's dissenting opinion in Holloway. It should also be noted here that this Court's recent decision in Brown v. State, 565 So. 2d 585 (Ala.1990), did not disturb the holding in Holloway. According to Holloway`s holding, if the one-step analysis (that of subject matter jurisdiction) satisfies the test of jurisdiction, then the defects and deficiencies forming the basis for a challenge at the second step of the test may be satisfied by waiver or may be corrected by amendment. That which is void provides no basis for corrective action. That which is merely voidable is viable until declared void and it will support both a waiver and an amendment.
Moreover, our holding is mandated by Rule 17(a), A.R.Civ.P. The corresponding Federal rule was interpreted and applied in Hess v. Eddy, 689 F.2d 977 (11th Cir.1982), cert. denied, 462 U.S. 1118, 103 S. Ct. 3085, 77 L. Ed. 2d 1347 (1983). After quoting the pertinent part of Rule 17, F.R.Civ.P. (which is identical to the language of our Rule 17), the Court of Appeals for the 11th Circuit stated:
689 F.2d at 980. (Emphasis in original.) See, also, Burcl v. North Carolina Baptist Hospital, 306 N.C. 214, 293 S.E.2d 85 (1982) (allowing foreign administrator not qualified in North Carolina to amend complaint after expiration of the limitations period, citing Rules 15(c) and 17(a), which allow change in capacity to relate back).
We are committed to a strong policy of following federal cases interpreting a rule of procedure where the wording of the federal rule and the wording of the state rule are substantially the same. Ex parte Duncan Construction Co., 460 So. 2d 852 *190 (Ala.1984); and Ex parte Scott, 414 So. 2d 939 (Ala.1982). We hold, therefore, that the trial court erred in entering summary judgment and in not allowing the amendment substituting the name of the real party in interest to relate back to the time suit was filed.
REVERSED AND REMANDED.
HORNSBY, C.J., and ADAMS, STEAGALL and KENNEDY, JJ., concur.
MADDOX, ALMON, SHORES and HOUSTON, JJ., concur in the result. | June 15, 1990 |
2c21bea3-8b63-4346-a871-a1d6fc99affa | The Booth, Inc. v. Miles | 567 So. 2d 1206 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1206 (1990)
THE BOOTH, INC.
v.
Timothy K. MILES.
88-1266.
Supreme Court of Alabama.
June 22, 1990.
Rehearing Denied September 14, 1990.
William P. Traylor, III and Deborah S. Braden of Yearout, Myers & Traylor, Birmingham, for appellant.
John T. Sutton and Andrew J. Smithart of Lee, Barrett, Mullins & Smith, Tuscaloosa, for appellee.
HORNSBY, Chief Justice.
This is an action pursuant to Ala.Code 1975, § 6-5-71 (the Dram Shop Act). The corporate defendant, The Booth, Inc., appeals from a judgment based on a jury verdict in favor of the plaintiff, Timothy K. Miles. We affirm.
Miles was injured in an automobile accident when the car he was driving collided with a car driven by defendant Wade Coker Gilmer on April 14, 1987. Gilmer testified that prior to the accident he had been to "The Booth," a bar located in Tuscaloosa, Alabama, and owned and operated by the corporate defendant.
Gilmer stated he was at the Booth for two hours and that during that time he consumed approximately six 12-ounce beers and two "shots" of Jaegermeister liqueur. Further, testimony revealed that a bartender at The Booth was drinking with Gilmer. Several witnesses testified that Gilmer appeared intoxicated while he was in The Booth. Within minutes after Gilmer left The Booth, the accident with Miles occurred. It was established that Gilmer's *1207 blood alcohol level after the accident was 0.32 percent.
Miles testified that he incurred approximately $1,800 in medical expenses. Miles further testified that his automobile was damaged; that he was not able to begin a job as planned. He also testified as to other items relating to his actual damages.
Miles sued Gilmer on May 27, 1987, and added as a defendant The Booth, Inc., by amendment, on February 24, 1988. Prior to trial, Miles entered into a pro tanto settlement with Gilmer in the amount of $15,000. The case was tried against the remaining defendant, The Booth, Inc., and the jury returned the following verdict:
The Booth, Inc., argues that the verdict is inconsistent. Specifically, it asserts that the jury award of $65,000 punitive damages cannot stand when there was a finding by the jury of no compensatory damages.
From a reading of the charge given to the jury, we find that the charge was misleading, and that the jury's confusion was clearly shown by the amounts indicated on the verdict form. However, the law in Alabama regarding an award of punitive damages under the Dram Shop Act is not that there must be an award of compensatory or at least nominal damages, but only that there must exist actual or nominal damage or injury to support an award of punitive damages.
The jury executed a specific verdict form, as set out above. Miles argues that the jury made a technical mistake in not specifically awarding compensatory damages. We agree. There can be no mistake from the testimony that Miles was entitled to compensatory damages, and that he proved that there was actual damage and injury incurred by him. His automobile was totally destroyed, and he incurred medical expenses of approximately $1,800. Miles was further prevented from beginning a new job due to his injuries.
The trial court gave the following charge to the jury with respect to the pro tanto settlement:
(Emphasis added.)
It is unclear whether the jury considered the $15,000 that it was required to subtract to be the compensatory damages for the injuries suffered by Miles or to be punitive damages. Because the trial court instructed the jury that $15,000 was the "threshold amount," the jury could have inferred that if the compensatory damages alone did not exceed $15,000, then -0- should be placed in the space provided on the form for compensatory damages. The jury possibly concluded that Miles had already been compensated by the $15,000 he had received from the pro tanto settlement, and then awarded punitive damages accordingly. However, *1208 jury verdicts are due to be upheld unless clearly wrong, and because we cannot conclude that the jury's verdict of $15,000 was clearly wrong, we must defer to the jury in this case.
Additionally, the case against The Booth, Inc., was brought under Ala.Code (1975), § 6-5-71, which states:
The specific words of the above statute, on which this case was brought, state that a plaintiff may collect "for all damages actually sustained," not all damages necessarily awarded by a jury. The issue here becomes: When the evidence will support an award of actual or even nominal damages, must there be an actual award from the jury for those actual or nominal damages before punitive damages may be awarded?
The evidence in this case shows detailed proof that would support an award of actual damages. In a Dram Shop action, when there is sufficient evidence of actual damage or injury to support an award of compensatory damages, we do not require a specific award of actual damages in order to support an award of punitive damages. See Harris v. American General Life Ins. Co. of Delaware, 202 Mont. 393, 658 P.2d 1089 (1983), and Annot., Sufficiency of Showing of Actual Damages to Support Award of Punitive Damages, 40 A.L.R.4th 11 (1985).
AFFIRMED.
ALMON, SHORES, ADAMS and HOUSTON, JJ., concur.
MADDOX, J., concurs in the result.
JONES, STEAGALL and KENNEDY, JJ., dissent.
STEAGALL, Justice (dissenting).
I respectfully dissent. I would not speculate on the intention of the jury. In my opinion, this is an inconsistent verdict. See Clements v. Lanley Heat Processing Equipment, 548 So. 2d 1345 (Ala.1989); Moore v. Clark, 548 So. 2d 1352 (Ala.1989); and Maring-Crawford Motor Co. v. Smith, 285 Ala. 477, 233 So. 2d 484 (1970). See, also, Wood v. Holiday Inns, Inc., 369 F. Supp. 82, 91 (M.D.Ala.1974), affirmed in part, reversed in part, 508 F.2d 167 (5th Cir.1975), where the court, interpreting Alabama law, stated that "an award of punitive damages will not be sustained where no compensatory or nominal damages are assessed against the defendant." (Citations omitted.)
I would reverse and remand.
JONES and KENNEDY, JJ., concur. | June 22, 1990 |
0856a75e-b446-4e66-ac82-11d4750583b5 | Hill v. Bradford | 565 So. 2d 208 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 208 (1990)
Dillard Roy HILL
v.
Sadie Vess BRADFORD.
89-210.
Supreme Court of Alabama.
June 22, 1990.
Robert M. Hill, Jr. of Hill, Young and Boone, Florence, for appellant.
Donald R. White, Moulton, for appellee.
SHORES, Justice.
This appeal arises out of a suit to set aside conveyances of real estate that were allegedly made to defraud a judgment creditor. The judgment creditor, Sadie Vess Bradford, is the widow of a crime victim. She received a $225,000 judgment against the defendant/debtor, Dillard Roy Hill, under the Restitution to Victims of Crimes Act, Ala.Code 1975, § 15-18-65 et seq. Mrs. Bradford filed suit to set aside conveyances Hill made to his daughter and to his son's corporation. Hill filed a counterclaim seeking to set aside the restitution judgment entered in Mrs. Bradford's favor. The trial court held that the real estate had not been fraudulently conveyed, and that the restitution judgment previously entered against Hill and in favor of Mrs. Bradford was valid. The defendant has appealed from the trial court's ruling on his counterclaim.
On May 30, 1980, the defendant, Dillard Roy Hill, shot and killed Rayburn Vess. On June 25, 1980, Hill conveyed one parcel of real estate to his daughter, Jeweldeen Hall, and two parcels of real estate to H. & L., Inc., a corporation in which his son, Willard Hill, had a controlling interest. According *209 to the testimony at trial, Hill received $4,600 from his daughter as consideration for the conveyance to her, and, according to that testimony, in exchange for the property his son paid $8,500 in cash to the defendant and extinguished a $6,500 debt that the defendant owed him. Hill testified that he conveyed the real estate because he needed money to pay his defense attorneys.
Following a conviction of manslaughter, an appeal, a reversal of the conviction, and a new trial, Hill was again convicted of manslaughter on May 20, 1981, in the Circuit Court of Lawrence County. On May 26, 1981, Hill was sentenced to a 10-year term of imprisonment and was fined $5,000. The Court of Criminal Appeals affirmed the judgment and sentence on June 8, 1982, and on June 28, 1982, Hill began serving his sentence of imprisonment. On August 5, 1982, the district attorney of Lawrence County filed a petition on behalf of Sadie Vess,[1] the victim's widow, for compensation under Ala.Code 1975, § 15-18-67, which provides:
(See also Temp.Rule 10, A.R.Crim.P.) This statute became effective on May 28, 1980, two days before Vess's death.
A hearing on the petition was held on August 17, 1982. Hill requested that an attorney be appointed to represent him at the hearing, but the trial judge denied the request, stating that he did not think Hill was entitled to have a lawyer appointed because his guilt had already been established. On August 23, 1982, following the hearing, the trial court entered a written order that required Hill to pay $225,000 restitution to Sadie Vess Bradford. Hill filed no post-judgment motions in this matter, and he did not appeal.
On July 2, 1986, Sadie Vess Bradford filed a suit in Lawrence County to set aside the conveyances Hill had made to his daughter and to H. & L. Inc., on the ground that Hill's purpose in conveying the property was to defraud her and to hinder her efforts to collect the restitution judgment. Hill denied the allegations of the complaint and pleaded as affirmative defenses that the circuit court had acted without jurisdiction when it awarded the judgment for restitution, and that the restitution award was invalid because legal counsel was not appointed for him at the hearing and this failure to appoint counsel amounted to a denial of due process.
On March 31, 1988, Jeweldeen Hall sold the property she had received from her father in 1980 to Clayton and Ann Patrick. Upon a motion filed by the Patricks on September 19, 1988, they were permitted to intervene in the fraudulent conveyance suit to protect their interests in the property. The Patricks filed a motion requesting the court to add Jeweldeen Hall as a party defendant, and the court granted the motion on October 5, 1988.
On November 7, 1988, Hill filed a counterclaim against Bradford. Hill claimed that the restitution judgment entered against him was void and unenforceable because, he argued: (1) the court had lost jurisdiction over the matter before the restitution hearing was held; (2) his constitutional rights were violated because he did not receive assistance of counsel at the hearing; and (3) the statute does not provide for damages in this cause. He requested that the judgment against him and in favor of Bradford be set aside.
*210 At the hearing on the merits of the fraudulent conveyance case, Bradford testified that no part of the $225,000 judgment had been paid. The defendants testified about the conveyances, and Hill stated that he had used the money he had received from his children to pay his attorney fees in the prior criminal proceedings. The transcript of the restitution hearing, in which Hill's request for counsel was made and denied, was admitted into evidence. The trial court held that Bradford had failed to prove that Hill's conveyances to Hall and to H. & L. Inc., were made fraudulently and with the intent to prevent Bradford from recovering restitution. The court also determined that the restitution order entered against Hill on August 23, 1982, was valid, and that the record of the restitution proceeding did not reflect that Hill was prejudiced by the absence of counsel. Hill now appeals from the trial court's ruling on the counterclaim he filed against Bradford.
Hill raises two issues, both relating to the restitution judgment entered against him on August 23, 1982, following the hearing on the State's petition. He argues, first, that the judgment was void because, he says, the trial court had lost jurisdiction to enter the order 30 days after his sentence of imprisonment was imposed. We do not agree that the trial court lost jurisdiction to enter this restitution judgment 30 days after Hill was sentenced to a term of imprisonment, because the restitution statute makes it clear that restitution hearings are to be held as a matter of course and that restitution may be ordered in addition to any other sentence imposed and does not require that a restitution hearing be held within 30 days of the imposition of a sentence of imprisonment or other criminal sanctions. Under the facts of this case, the hearing was timely and did not violate the United States Constitution. Barker v. Wingo, 407 U.S. 514, 521, 92 S. Ct. 2182, 2187, 33 L. Ed. 2d 101 (1972).
The Sixth Amendment to the United States Constitution guarantees defendants the right to counsel in all criminal prosecutions. U.S. Const. Amend. VI. See also Ala. Const. art. I, § 6. Appointment of counsel for an indigent defendant is required at every stage of a criminal proceeding where substantial rights of the accused may be affected. Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L. Ed. 2d 114 (1961). Sentencing is regarded as a critical stage, and an indigent defendant is entitled to the assistance of appointed counsel unless he waives that right. See Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967); Shellnut v. State, 280 Ala. 28, 189 So. 2d 590 (1966).
Restitution hearings held pursuant to Ala.Code 1975, § 15-18-67, are a component of the criminal sentencing proceeding; therefore, defendants have the right to the presence of counsel at these hearings. See Williams v. State, 506 So. 2d 368 (Ala.Cr. App.1986), cert. denied, 506 So. 2d 372 (Ala. 1987) (trial court not authorized to order restitution in the absence of the defendant and his attorney unless the right to counsel is waived).
Because Hill was not afforded a lawyer at the restitution hearing, we reverse the trial court's judgment refusing to set aside the restitution judgment against Hill and we remand the cause.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Sadie Vess has remarried and is now known as Sadie Vess Bradford. | June 22, 1990 |
bead978b-c474-41de-a4b4-c472e8c91de2 | German Auto, Inc. v. Tamburello | 565 So. 2d 238 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 238 (1990)
GERMAN AUTO, INC.
v.
Benard S. TAMBURELLO.
89-415.
Supreme Court of Alabama.
June 29, 1990.
*239 Drayton N. James of Clark & James, Birmingham, for appellant.
Rick DiGiorgio of Jaffe, Burton & DiGiorgio, Birmingham, for appellee.
SHORES, Justice.
German Auto, Inc., appeals from a judgment entered on a jury verdict against it and from the trial court's denial of its motion for a new trial. Benard Tamburello, the appellee, bought a 1986 white BMW 325es automobile from German Auto on January 20, 1987. Tamburello alleged that the car was represented and was warranted to be new and undamaged. After the purchase, he discovered that the left rear fender of the car had been damaged and repainted. After a German Auto representative inspected the car, German Auto offered to repair the car to Tamburello's satisfaction, give him a comparable new car of equal value, or to cancel the transaction and return Mr. Tamburello's trade-in automobile with no charge to Tamburello for the mileage accumulated on the 1986 BMW. Tamburello refused this offer. German Auto sued to rescind the contract on the basis of mutual mistake. Tamburello then sued, alleging fraud, breach of warranty, deceit, and breach of contract. This action was consolidated with German Auto's suit. Tamburello then amended his complaint, withdrawing his claims of breach of contract and breach of warranty.
After a jury trial, the jury returned a verdict in favor of Tamburello. The jury awarded Tamburello $2,350.00 in compensatory damages and $10,815.00 in punitive damages. German Auto made a motion for a judgment notwithstanding the verdict or for a new trial conditioned upon the plaintiff's refusal to agree to a remittitur of punitive damages. The trial judge denied the motion. On appeal, German Auto challenges only the trial court's denial of its new trial motion.
*240 German Auto received Tamburello's car from the manufacturer on June 14, 1986. Charles Parker, a mechanic for German Auto, performed the predelivery inspection on the car a few days later. Mr. Parker testified that in June 1986, while performing a predelivery inspection, he backed a white BMW 325 into a pole. He testified that he put a dent about a foot and a half long above the left rear fender well. Mr. Parker testified that the car damaged was similar to Tamburello's car. Mr. Parker stated that he told the service manager, Tracy Kelly, about the incident. Mr. Kelly testified that he told Darryl Higginbotham, the sales manager, about the damage. Mr. Higginbotham said he did not remember whether he was told this by Kelly. The car was sent to Auto Laq Paint and Body Shop to be repaired. The estimates and repair order reveal that the left rear quarter panel of a white 1986 BMW 325es was damaged during predelivery inspection and was repaired and painted for $190.00. None of the documents contained the identification number for the car. There was testimony that this omission was a mistake on the part of German Auto's secretary. Mr. Higginbotham testified that there were no other German Auto records involving repair to the left rear quarter panel of a 1986 BMW 325 during this time period and that Tamburello's car was probably the one damaged by Parker. The predelivery inspection certification for Tamburello's car contained the entry "vehicle without scratches or damage." The box beside this line was not checked. There was conflicting evidence regarding the failure to check the box. Mr. Higginbotham testified that the failure to check it meant that the body of the car had not been checked for damage. Mr. Kelly, however, testified that the fact that the box was not checked meant that scratches or damage had been found. German Auto had a form to be used to disclose to a purchaser damage to an automobile. This form was not given to Tamburello.
Punitive damages may be awarded if there is a finding of intent to deceive or defraud. American Honda Motor Co. v. Boyd, 475 So. 2d 835 (Ala. 1985). However, if the representation was mistakenly and innocently made, then only compensatory damages are recoverable. § 6-5-101, Alabama Code 1975; Ex parte Lewis, 416 So. 2d 410, 411-12 (Ala.1982) (Jones, J., concurring).
There was evidence from which the jury could conclude that, at the time of the sale, German Auto knew that this particular car had been damaged, and that German Auto intended to conceal this fact from Tamburello. There was evidence that the sales manager was told of the damage to the car, that no other 1986 BMW 325es at German Auto was similarly damaged during this time, that the predelivery inspection certification for Tamburello's car indicated that the dealership had discovered damage to the car, and that this form was available to the salesman who sold the car to Tamburello. Tamburello testified that he was told the car was new but that he was not told anything about whether the car had been damaged. Higginbotham testified that if a customer was told a car was new it would also mean the car was not damaged. There was also evidence that the Auto-Laq repair orders were not in the car's file and that the secretary omitted the car's identification number from the correspondence with Auto Laq. However, the jury was not required to believe that the misrepresentation to Tamburello was the result of a secretary's mistake. Because the evidence was not conclusive that the misrepresentation by German Auto was mistakenly or innocently made, the trial court correctly permitted the jury to decide the issue.
Tamburello argues that German Auto did not move for a directed verdict or object to the jury charge on punitive damages. Apparently, German Auto, in not moving for a directed verdict at the close of the evidence, recognized that a fact issue was presented on the question of whether the misrepresentation was innocent or was intended. Therefore, its motion for judgment notwithstanding the verdict was properly denied for that reason alone, since that post-trial motion for relief is unavailable to one who did not request a directed verdict at the close of all the evidence. King Mines Resort, Inc., v. Malachi Mining & Minerals, Inc. 518 So. 2d 714 (Ala.1987).
*241 The record does not contain the court's instruction to the jury. Thus, it is not clear whether German Auto failed to object to the charge on punitive damages. Therefore, no error is shown and the record presents nothing for us to review except the trial court's denial of the motion for new trial. Having reviewed the evidence, we cannot reverse the trial court's denial of Tamburello's motion for a new trial. Accordingly, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | June 29, 1990 |
488ab30b-da72-4c99-970c-741d9ed7857c | Pardue v. State | 571 So. 2d 333 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 333 (1990)
Ex parte State of Alabama.
(Re Michael R. PARDUE
v.
STATE).
89-313.
Supreme Court of Alabama.
June 22, 1990.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for petitioner.
Everett A. Price, Jr., Brewton, for respondents.
STEAGALL, Justice.
Michael R. Pardue was convicted of second-degree escape, first-degree theft, second-degree theft, and first-degree burglary. He was sentenced as a habitual offender to 10 years' imprisonment on the escape conviction, to life imprisonment on the first-degree theft conviction, to 20 years on the second-degree theft conviction, and to life without parole on the burglary conviction. The Court of Criminal Appeals affirmed the conviction and sentence as to the escape conviction; vacated one of the theft convictions, ordering the court to set aside either the first- or the second-degree theft conviction and to resentence accordingly; and reversed and remanded as to the burglary conviction, directing the court to set aside the first-degree burglary conviction, to find Pardue guilty of third-degree burglary, and to sentence him accordingly. After its application for rehearing was overruled, the State filed a petition for a writ of certiorari, which we granted in order to consider whether a burglar is "armed with ... a deadly weapon" in accordance with Ala.Code 1975, § 13A-7-5(a), if he acquires a gun as loot during the burglary but does not use it or possess it for the purpose of its use or potential use as a weapon.
For a statement of the facts of this case, see Pardue v. State, 571 So. 2d 320 (Ala. Crim.App.1989).
The State contends that the Court of Criminal Appeals' decision is erroneous because, the State argues, it negates the intent of the legislature in adopting Code *334 1975, § 13A-7-5(a). In support of its contention, the State relies on Henry v. State, 448 So. 2d 432 (Ala.Crim.App.1983); Bates v. State, 468 So. 2d 207 (Ala.Crim.App. 1985); and Lovell v. State, 477 So. 2d 485 (Ala.Crim.App.1985). Those cases, which held that the taking of a firearm during a burglary would suffice to support a first-degree burglary conviction, were expressly overruled by the Court of Criminal Appeals in Buchannon v. State, 554 So. 2d 477 (Ala. Crim.App.1989), cert. denied, 554 So. 2d 494 (Ala.1989).
In Buchannon, the Court of Criminal Appeals made a distinction between the perpetrator who equips himself with a weapon prior to the crime and the perpetrator who steals a weapon during the crime, stating: "The mere showing that the defendant stole a weapon during the course of a burglary or robbery, without more, does not constitute being `armed.'" 554 So. 2d at 492.
The offense of burglary in the first degree is defined in Code § 13A-7-5(a), as follows:
The statute clearly sets forth the conduct that is prohibited. A person commits the crime of burglary in the first degree when, in the course of committing a burglary, the person is armed with a deadly weapon. The statute does not require that the burglar be armed prior to entering a dwelling. Rather, the burglar must be "armed with explosives or a deadly weapon" at one of three points: 1) "in effecting entry"; or 2) "while in [the] dwelling"; or 3) "in immediate flight therefrom." Clearly, under the statute, the burglar could conceivably be "armed" at three different times during the course of the burglary.
We hold that the better view is that previously recognized by the Court of Criminal Appeals in Henry v. State, supra, Bates v. State, supra, and Lovell v. State, supra. This view has been adopted by Kentucky in Meadows v. Commonwealth, 551 S.W.2d 253 (Ky.Ct.App.1977), and by New Mexico in State v. Luna, 99 N.M. 76, 653 P.2d 1222 (App.), cert. quashed, 99 N.M. 148, 655 P.2d 160 (1982).
The applicable statute in Meadows was Ky.Rev.Stat. 511.020(1), which provides as follows:
Applying that statute where a defendant broke into an unoccupied dwelling and stole a gun, the Kentucky court held:
551 S.W.2d at 255.
The court in Luna interpreted a statute similar to Code § 13A-7-5(a), and stated:
653 P.2d at 1224. The New Mexico court held that the applicable statute is violated by a person who becomes armed with an unloaded weapon during the commission of a burglary.
The fact that Pardue armed himself with a deadly weapon while in the dwelling brings him within the purview of § 13A-7-5(a). Therefore, the decision in Buchannon, supra, is expressly overruled. We hold that Pardue was "armed" with a deadly weapon as that term is used in § 13A-7-5(a); we are persuaded that this holding is consistent with the intent of the legislature.
We, therefore, reverse that part of the Court of Criminal Appeals' judgment directing the trial court to set aside the first degree burglary conviction, to find Pardue guilty of third degree burglary, and to resentence accordingly; and we remand this cause for action consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON, SHORES and HOUSTON, JJ., concur.
KENNEDY, J., concurs in the result. | June 22, 1990 |
e152d04a-36b6-4bfc-9d5e-c631703be2cf | Nelson v. Buckley | 567 So. 2d 855 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 855 (1990)
Percena B. NELSON
v.
Parker Reid BUCKLEY, Jr., and Valerie B. Brown.
89-139.
Supreme Court of Alabama.
September 7, 1990.
Carleton P. Ketcham, Jr., Birmingham, for appellant.
W. Gregory Hughes, Mobile, for appellees.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of the defendants, Parker Reid Buckley, Jr. ("Buckley Jr."), and Valerie Brown, and against the plaintiff, Percena Nelson, in a declaratory judgment action. Nelson, Beverly Seymour, and the defendants are the children of Parker Reid Buckley, Sr. ("Buckley Sr."), and, according to the terms of his will, were to divide his estate in equal shares upon his death. That estate was estimated to total $479,363.60. After Buckley Sr.'s death, Nelson and Seymour filed a complaint seeking a declaration of the ownership of funds that had previously been held in joint accounts in the names of Buckley Sr., Buckley Jr., and Brown. Buckley Jr. and Brown contended that they owned those funds, which totalled $210,850.83. Nelson and Seymour alleged that the defendants had caused those funds to be deposited in joint accounts with right of survivorship through the exercise of undue influence over their father, and argued that those *856 funds were properly part of their father's estate. The only question presented is whether Nelson[1] presented sufficient evidence that Buckley Jr. and Brown had become the dominant parties in their relationship with Buckley Sr. to withstand the summary judgment motion.
The relationship of parent and child is inherently a confidential one. Although the law presumes that the parent is the dominant party in that relationship, that presumption is not conclusive. Chandler v. Chandler, 514 So. 2d 1307, 1308 (Ala. 1987). A party alleging the exercise of undue influence by a child over a parent must "reasonably satisfy the court that time and circumstances have reversed the order of nature, so that the dominion of the parent has not merely ceased, but has been displaced by subservience to the child." Chandler, 514 So. 2d at 1308, quoting Dillard v. Hovater, 254 Ala. 616, 619, 49 So. 2d 151, 153 (1950) (emphasis in Chandler). When evidence is produced that shows, to the reasonable satisfaction of the court, that the parent was no longer the dominant party in the parent-child relationship, a presumption of undue influence arises and the burden of proof shifts to the child who benefited from the transactions in question to show that the transactions were "fair, just, and equitable in every respect." Brothers v. Moore, 349 So. 2d 1107, 1109 (Ala.1977). That burden is usually satisfied by showing that the donor had the benefit of competent and independent advice of some disinterested third party. Hutcheson v. Bibb, 142 Ala. 586, 38 So. 754 (1905).
It is settled that what constitutes undue influence depends on the facts and circumstances of each case. Terry v. Terry, 336 So. 2d 159, 162 (Ala.1976). However, there is a marked difference between the standard used for determining if there was undue influence used in the procurement of testamentary transfers and the standard used for determining if there was undue influence used in the procurement of inter vivos transfers. In order to invalidate a testamentary transfer because of undue influence, the party challenging the transfer must present some evidence of fraud or coercion, thus showing that the transfer did not reflect the testamentary intent of the testator. Floyd v. Green, 238 Ala. 42, 46, 188 So. 867, 869 (1939). However, as this Court recognized in Bancroft v. Otis, 91 Ala. 279, 290, 8 So. 286, 289 (1890):
The evidence presented showed that Buckley Sr., Buckley Jr., and Brown worked for a number of years as directors and officers in businesses established by Buckley Sr. In addition, Buckley Sr. had a number of bank accounts that he held in joint tenancy with Buckley Jr. and Brown. Although the evidence conflicts on this point, it appears that some, but not all, of those joint accounts were with right of survivorship.
In 1980 or early 1981 Buckley Sr. began to have a number of severe health problems. He was repeatedly hospitalized and later resided in a nursing home. During this period Buckley Jr., who had been running the family businesses for some time, *857 assumed responsibility for Buckley Sr.'s personal affairs. In April 1981 Buckley Sr. suffered a stroke. That stroke debilitated him to such an extent that his speech was limited, according to Brown's affidavit, to words such as "yes, no, hello, good-bye, [and] a number of [other] things." In addition, he required sitters 24 hours a day. On September 23, 1981, Buckley Jr. asked his father to sign an instrument giving him power of attorney. Buckley Sr. required assistance in signing that instrument, and with his free hand had to steady the hand holding the pen. That signing was witnessed by Buckley Jr.'s in-laws.
Immediately after the power of attorney was signed, Buckley Jr. and Brown transferred funds from a number of joint accounts to a certificate of deposit and other accounts in the names of Buckley Sr., Buckley Jr., and Brown. Those accounts were with right of survivorship. Buckley Jr. and Brown maintain that those transfers were made solely to increase the amount of interest being paid on those funds. Nelson contends that those transfers were made to ensure that Buckley Sr.'s funds would be held in joint accounts with right of survivorship. However, the question of Buckley Jr. and Brown's motive is not one for this Court to address.
After reviewing the evidence presented by Nelson, this Court concludes that she presented substantial evidence that Buckley Sr.'s advanced age and numerous health problems, especially his stroke, caused him to depend heavily on Buckley Jr. and Brown to manage both his business and his personal affairs, thereby tending to show that Buckley Jr. was the dominant party in that relationship. Chandler, supra. That evidence therefore tends to raise the presumption of undue influence and to cast upon Buckley Jr. and Brown the burden of proving that the transfers of funds were fair, just, and equitable in every respect. Brothers, supra. Of course, the fact that Nelson has made out a prima facie case of dominance by Buckley Jr. and Brown does not prevent them from responding at trial to Nelson's claim by disputing her evidence that they had become dominant over Buckley Sr. See Beinlich v. Campbell, 567 So. 2d 852 (Ala.1990).
Buckley Jr. and Brown argue that summary judgment was proper because Nelson did not prove undue influence, fraud, duress, or coercion. However, Nelson was not required to offer that type of proof. Because Nelson is seeking to set aside, on the basis of undue influence, inter vivos transfers between parties in a confidential relationship, her only burden in defense against a summary judgment motion is to present evidence that Buckley Jr. and Brown had become the dominant parties in their confidential relationship with Buckley Sr. Chandler, supra. Nelson met that burden. Therefore, summary judgment was not proper.
By reaching this conclusion, this Court is not making any comment on the propriety of the actions taken by Buckley Jr. and Brown, or on the merits of Nelson's claim. Instead, this opinion only recognizes that Nelson presented "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the facts [Nelson] sought to [prove]." 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); Ala.Code 1975, § 12-21-12(d). The judgment is reversed, and this cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Seymour was dismissed as a party plaintiff on her own motion on January 5, 1989. There is no indication in the record that she was ever reinstated as a party before the entry of the final judgment. Therefore, notwithstanding the inclusion of her name on the notice of appeal and the pleadings submitted to this Court, she cannot be regarded as a party to this appeal. | September 7, 1990 |
4e1727f6-d4f3-439a-8d81-a02784f2e423 | Skinner v. Etheridge | 564 So. 2d 902 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 902 (1990)
Tony SKINNER and Ella Skinner
v.
Keith ETHERIDGE.
89-144.
Supreme Court of Alabama.
May 25, 1990.
*903 John E. Byrd of Byrd & Spencer, Dothan, for appellants.
Charles D. Decker of Hardwick, Hause & Segrest, Dothan, for appellee.
ADAMS, Justice.
This is an appeal by the plaintiffs, Ella and Tony Skinner, from a summary judgment in a malicious prosecution action against the police chief of Ashford, Keith Etheridge. We affirm.
The facts leading up to the filing of this action revolve around a warrant obtained by Chief Etheridge for the arrest of the Skinners. That warrant alleged that the Skinners had violated § 12-15-13, Code of Alabama (1975), by willfully aiding and encouraging a minor to become or remain delinquent. The record reveals that Chief Etheridge learned on June 28, 1988, that the minor in question was to be picked up for violation of probation and for running away. Several days later, on July 7, Chief Etheridge learned from the minor's father that the minor was staying with the Skinners and that the father had had contact with him there. On July 8, Chief Etheridge spoke with a police officer who had talked with Mr. Skinner and who had seen the minor with Mr. Skinner in a department store and had also spoken with him. The officer indicated to Chief Etheridge that Skinner had told him that the minor would turn himself in the following day. He did not do so. Chief Etheridge also obtained a copy of a one-way bus ticket purchased in the name of Ella Skinner with a destination of Oakland, California. The bus ticket was paid for by the minor's mother, who resides in Oakland, and was used by the minor to leave the jurisdiction of the juvenile court. Prior to obtaining the warrant, Chief Etheridge discussed all of the above information with an assistant district attorney and with the judge who later issued the warrant for the arrest of the Skinners. Thereafter, the Skinners were arrested, but the charges against them were later dismissed. Subsequently, they filed this action against Chief Etheridge alleging malicious prosecution.
At the outset, we note that malicious prosecution actions are not favored. Eidson v. Olin Corp., 527 So. 2d 1283 (Ala. 1988), citing Cutts v. American United Life Insurance Co., 505 So. 2d 1211 (Ala. 1987), and Boothby Realty Co. v. Haygood, 269 Ala. 549, 114 So. 2d 555 (1959).
*904 In light of the evidence set out above, we consider it clear that Chief Etheridge had probable cause to seek the warrant. Therefore, discussion of the other elements of an action for malicious prosecution is unnecessary.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | May 25, 1990 |
315f8dfd-87be-4048-b19e-da6d11d067af | Montgomery Health Care v. Ballard | 565 So. 2d 221 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 221 (1990)
MONTGOMERY HEALTH CARE FACILITY, INC., and First American Health Care, Inc.
v.
Ella BALLARD as administratrix of the estate of Edna Stovall, deceased.
88-1532.
Supreme Court of Alabama.
June 29, 1990.
*222 Dennis R. Bailey and Robert A. Huffaker of Rushton, Stakely, Johnston and Garrett, Montgomery, and Edward O. Conerly of McDaniel, Hall, Conerly and Lusk, Birmingham, for appellants.
Frank M. Wilson of Beasley, Wilson, Allen, Mendelsohn & Jamison and Billy L. Carter of Carter & Knight, Montgomery, for appellee.
SHORES, Justice.
Ella Ballard, administratrix of the estate of Edna Stovall, deceased, filed suit against Montgomery Health Care Facility, First American Health Care, Inc., and Dr. Kynard Adams, alleging that the defendants provided negligent or wanton care and that their negligence proximately caused the death of Mrs. Stovall. Mrs. Stovall was a patient at Montgomery Health Care Facility, a nursing home. First American Health Care, Inc., is the parent corporation of Montgomery Health Care, and Dr. Adams was Mrs. Stovall's treating physician at the nursing home. The plaintiff claims that as a proximate cause of the defendants' negligence or wantonness, Mrs. Stovall suffered multiple infected bedsores, from which she died.
Mrs. Stovall was admitted to the nursing home on February 8, 1985, suffering from organic brain syndrome, congestive heart failure, osteoarthritis, and hypertension. The first recordation of a bedsore on Mrs. Stovall occurred on February 14, 1985. No bedsores were noted on her admitting physical examination. Bedsores, also known as decubitus ulcers and pressure sores, are caused by the compression of body tissue between a bony structure and a supporting *223 structure such as a bed or wheelchair.[1] This pressure obstructs the blood supply to the tissues, resulting in a deprivation of oxygen and nutrients to the area.[2] The early stages of pressure sores involve only superficial tissues. In later stages, fat, muscle, and even the underlying bone can be affected. Bacterial infection of the sore can lead to the patient's death.[3]
On August 14, 1985, Mrs. Stovall was sent to St. Margaret's Hospital for surgical debridement of multiple decubitus ulcers on her left hip, left upper thigh, and left heel. Debridement is the removal of dead tissue from the sore. On February 17, 1986, she was again sent to St. Margaret's Hospital, this time for debridement of a decubitus ulcer on her right hip. The operation was performed on February 21, 1986. Decubitus ulcers were also noted on her left hip, legs, and back. Mrs. Stovall died in the hospital on March 4, 1986. Her death certificate listed the cause of death as cardiopulmonary arrest due to multiple decubitus with sepsis due to a chronic vegetative state. The evidence presented at trial was disputed as to whether she was in a chronic vegetative state.
After trial, the jury returned a verdict against Montgomery Health Care Facility and First American Health Care, Inc., for $2 million, and a verdict in favor of Dr. Adams. Montgomery Health Care and First American filed motions for judgments notwithstanding the verdict and for new trial, which were denied by the trial court.
On appeal, the defendants argue that the trial court erred in admitting into evidence survey reports by the Alabama Department of Public Health, in denying their motion for a mistrial, in denying First American's motion for a directed verdict, and in denying the defendants' request for a remittitur.
The defendants argue that the trial court incorrectly admitted into evidence survey and complaint reports regarding the nursing home. These reports, compiled by the Alabama Department of Public Health, contained information about deficiencies found in the nursing home. The defendants claim that this information is inadmissible as evidence of notice to the defendants, under Flint City Nursing Home, Inc. v. Depreast, 406 So. 2d 356 (Ala.1981). However, in Flint City Nursing Home, this Court held that evidence of notice to a defendant of an alleged dangerous condition or defect can be relevant to the issue of negligence and is admissible if the alleged defect proximately caused or contributed to the injury involved. In that case, evidence relating to 4 of 16 deficiencies found in a nursing home by the Alabama Department of Public Health was held inadmissible because those deficiencies did not proximately cause or contribute to the patient's death. In this case, however, there was evidence that the deficiencies noted proximately contributed to Mrs. Stovall's death. The deficiencies admitted into evidence were inadequate documentation of treatment given for decubitus ulcers; 23 patients found with decubitus ulcers, 10 of whom developed those ulcers in the facility; dressings on the sores were not changed as ordered; nursing progress notes did not describe patients' ongoing conditions, particularly with respect to descriptions of decubitus ulcers; worsening of decubitus ulcers; ineffective policies and procedures with respect to sterile dressing supplies; lack of nursing assessments; incomplete patient care plans or lack of such plans; inadequate documentation of doctors' visits, orders, or progress notes; a.m. care not consistently documented; inadequate documentation of turning of patients; incomplete "activities of daily living" sheets; "range of motion" exercises not documented; orders for placing patient up in chair not consistently documented; patients *224 found wet and soiled with dried fecal matter; lack of bowel and bladder retraining programs; incomplete documentation of ordered force fluids; inaccessible water pitchers; monthly weighing of patients was not done; incomplete documentation of food consumption; tube feeders were not receiving their feedings as ordered; linen was not handled properly to prevent the spread of infection; vital signs not checked as ordered; inadequate staffing; the director of nursing was not responsible for the standards of nursing practice; charge nurses had not been responsible for the supervision of nursing activities; the governing body in its management through the administrator had not enforced rules and regulations concerning patients' health and safety due to deficiencies noted in nursing services such as bowel and bladder training, activities of daily living, ambulation, patient care planning, and infection control.
There was evidence that all of these deficiencies contribute to the development or worsening of pressure sores. Pressure should be kept off the sore. One way to accomplish this is to turn the patient regularly. Proper nutrition is needed to facilitate healing. Weighing the patient regularly is one way to insure that he is being fed properly. The wound must be kept clean and must be treated regularly. The patient should be exercised and assisted with walking, if possible, to prevent contraction of joints. The less active a patient is, the more likely he is to develop pressure sores, and the more difficult the sores are to treat. Documentation of such treatment is necessary in order to monitor progress, to know which treatments have been effective with the patient, to know which treatments the previous shift has provided, etc. Adequate staff must be maintained and properly trained and supervised in order to carry out these functions.
Further, there was evidence that the care given to Mrs. Stovall was deficient in the same ways noted in the survey and the complaint reports. Her ulcers developed within the facility. Her records contain very incomplete documentation of the development and treatment of her pressure sores. Her records even contain entries for days before she was admitted to the nursing home. Her children testified that while she was in the nursing home they found her wet and soiled at times and noticed dirty dressings on her sores. Mrs. Stovall's records do not contain monthly progress notes by her treating physician. Her records do not indicate that she had been exercised or turned as ordered, and they contain gaps in the documentation of a.m. care. Her "activities of daily living" charts are incomplete. Her records do not contain entries to show that she was ambulated or placed up in a chair as ordered. Mrs. Stovall was incontinent as early as February 1985, but there was no bowel or bladder retraining program for her until July 1985. Her food and fluid consumption was not consistently documented. One daughter testified that at times she had to get water for her mother. Mrs. Stovall was not weighed monthly as ordered. Her vital signs were not regularly documented during her first admission to Montgomery Health Care. There was evidence of lack of training and supervision of the nurses treating Mrs. Stovall. Two nurses testified that they did not know that decubitus ulcers could be life threatening. One nurse testified that she did not know that the patient's doctor should be called if there were symptoms of infection in the sore. When her daughters complained to the staff about her lack of care, they were told that staffing was inadequate. Three of Mrs. Stovall's nurses testified that the facility was understaffed. One nurse testified that she asked her supervisor for more help but that she did not get it.
The trial court gave the jury a limiting instruction stating that the deficiencies noted in the survey and complaint reports were to be considered solely on the issue of whether the defendants had notice of the alleged conditions. As discussed above, the deficiencies cited and admitted into evidence were directly related to the development of pressure sores from which Mrs. Stovall died. The plaintiff deleted deficiencies in the reports that did not relate to the development of pressure sores. Moreover, there was evidence that the care given to *225 Mrs. Stovall was deficient in the same ways as those noted in the survey and complaint reports. Because the jury could find that the deficiencies noted were deficiencies that proximately caused Mrs. Stovall's death, this evidence was admissible and the trial judge did not abuse his discretion in admitting it.
Next, the defendants argue that the trial court erred in denying a motion for a mistrial because of statements made by counsel for the plaintiff during his opening statement. Plaintiff's counsel allegedly referred to prior proceedings before the Montgomery County Circuit Court in which the court entered a temporary restraining order against the nursing home, appointing an administrator and removing some patients. The trial court has wide discretion in deciding whether an incident occurring during trial has affected a party's right to a fair trial, and its decision will not be reversed unless "it clearly appears that its discretion has been abused." General Finance Corp. v. Smith, 505 So. 2d 1045, 1049 (Ala.1987). Here, the record does not contain a transcript of the opening statements. It is not clear what the plaintiff's counsel said or even if he made the alleged statement. We cannot say that the trial judge abused his discretion in denying the motion for a mistrial.
The defendants also argue that, later in the trial, evidence concerning the prior proceeding was improperly admitted. Only once was there a proper objection. Counsel for the plaintiff was questioning an inspector who had given an affidavit based on an inspection. The inspector could not recall the circumstances of the affidavit and, in order to refresh her recollection, plaintiff's counsel asked her if she recalled a court proceeding in which the Department of Pensions and Security sought to remove some patients. The trial judge overruled the objection but gave a limiting instruction stating that the jury was not to consider the question as evidence. Counsel for the defense later extensively questioned a witness about the administrator appointed by the court as a result of the prior proceeding and the fact that the temporary restraining order was dissolved. Thus, there was no prejudice resulting from the plaintiff's questioning of the inspector.
Next, the defendants claim that First American, as the parent corporation of Montgomery Health Care, was not liable for the torts of its subsidiary. The test for liability enunciated in Larrimore v. Hospital Corp. of America, 514 So. 2d 840 (Ala. 1987), is whether First American was the employer of the alleged tort-feasors or whether it controlled or retained the right to control the day-to-day operations of Montgomery Health Care Facility. See also Duff v. Southern Ry., 496 So. 2d 760 (Ala.1986); Ex parte Baker, 432 So. 2d 1281 (Ala.1983). Sufficient evidence of such control was presented for the jury to find First American liable. First American owned and managed Montgomery Health Care. First American was a small family-owned corporation, and it held 100% of the stock of Montgomery Health Care. When First American first bought Montgomery Health Care, Joni Hill, the president of First American, acted as the administrator of the nursing home until a permanent administrator was found one month to six weeks later. Ms. Hill testified that after the new administrator took over she (Mrs. Hill) visited the facility several times a month to check on office administration and to tour the entire facility, including patients' rooms and the nurses' desk. She even testified that she would sometimes push the nurses' call button in patients' rooms to see how long it would take the nurses to respond. She testified that she went through the home as a surveyor would, checking patients and watching employees. She further testified that when she was unable to visit the facility her father, also an officer of First American, was in the facility almost every day. She testified that First American received copies of the Alabama Department of Public Health reports and thus knew of the deficiencies found in the nursing home. A "committee of the whole," composed of the facility's administrator, assistant administrator, director of nursing, and medical director, *226 established the policy for the home. The administrator of the nursing home reported directly to Joni Hill and was directly responsible to her. Based upon these facts, there was sufficient evidence for the jury to conclude that First American controlled, or retained the right to control, the day-to-day operations of the home and was liable for the neglect suffered by Mrs. Stovall.
Last, the defendants argue that the punitive damages award of $2 million was greater than necessary to meet society's goal of punishing them and was therefore excessive, because they are bankrupt and insurance would have to cover the award. The trial court held a hearing pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986), on the defendants' request for a remittitur and held that the bankrupt status of the defendants did not require a remittitur. Specifically, the trial court found that, because of the bankruptcies, the defendants would not be adversely affected by the verdict. Further, the court noted that "Alabama public policy allows liability insurance to cover punitive damages in the wrongful death context." The trial court also found that because of the large number of nursing home residents vulnerable to the type of neglect found in Mrs. Stovall's case the verdict would further the goal of discouraging others from similar conduct in the future. The evidence in the record supports these findings. Thus, the trial court correctly denied the defendants' motion for remittitur.
AFFIRMED.
HORNSBY, C.J., and JONES, ADAMS and KENNEDY, JJ., concur.
[1] J. Agris and M. Spira, "Pressure Ulcers: Prevention and Treatment," 31 Clinical Symposia, No. 5 at 2 (1979).
[2] B. Kozier and G. Erb, Fundamentals of Nursing, Chap. 21 at 497 (Addison-Wesley Pub., 2d ed. 1983).
[3] Clinical Symposia, supra, at 2; Fundamentals of Nursing, supra, at 497. | June 29, 1990 |
a1acd9e4-7380-4a95-9093-a2c6de4ecfa8 | Ex Parte Williams | 571 So. 2d 987 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 987 (1990)
Ex parte Mary WILLIAMS.
(Re Mary Williams v. State).
89-597.
Supreme Court of Alabama.
June 22, 1990.
Rehearing Denied September 21, 1990.
David Gespass of Gespass, Johnson & Izzi, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Mary Williams was convicted of first degree theft of property and of second degree theft of property. The Court of Criminal Appeals affirmed those convictions. We reverse that court's judgment and remand the cause.
Williams was indicted for first degree theft of property and second degree theft of property in relation to alleged overpayments made to her by the Alabama Department of Human Resources from its Aid to Dependent Children program. During jury selection, the State used peremptory strikes to strike four of the five black venire members; the other black venire member was selected to serve on the jury. After the jury was impanelled and sworn, Williams made a motion to quash the jury panel pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). The State did not object to the motion as untimely. Instead, the State gave purportedly race-neutral reasons for three of the four peremptory strikes that served as the basis for Williams's Batson motion. No explanation was offered for *988 the fourth strike. The trial court considered the State's argument and denied Williams's Batson motion. Williams appealed the trial court's denial of that motion. When the Court of Criminal Appeals affirmed Williams's conviction, it did so with only this comment: "Affirmed without opinion as to sufficiency issue; affirmance on all other issues is based on procedural bars." 555 So. 2d 1209.
The State argues that the holding of the Court of Criminal Appeals in relation to the Batson issue is that Williams's claim is "procedurally barred" because her motion should have been made after the State used its peremptory strikes, but before the jury was sworn. The trial court denied Williams's motion because it accepted the State's allegedly race-neutral reasons for the peremptory strikes; it did not deny the motion because of the "procedural" requirement that the motion be made before the jury is sworn. Accordingly, the Court of Criminal Appeals affirmed the trial court's judgment on the substance of Williams's Batson motion by using a procedural bar that was not raised by the State until appeal.
The State argues that such a holding is permissible, because, it argues, this Court may affirm the trial court's judgment even if it disagrees with the reasoning of the trial court in entering the judgment, as long as the judgment itself is proper. To support its argument, the State cites Collier v. State, 413 So. 2d 396 (Ala.Cr.App. 1981); cert. granted, aff'd, Ex parte Collier, 413 So. 2d 403 (Ala.1982); Wyrick v. State, 409 So. 2d 969 (Ala.Cr.App.1981); Lewis v. State, 399 So. 2d 907 (Ala.Cr.App. 1981). In Collier, the defendant was convicted of unlawful possession of marijuana. Collier contended that the warrantless search pursuant to which the marijuana was found violated his Fourth Amendment rights. The Court of Criminal Appeals ruled that he did not have standing to contest the validity of the search and seizure, because he did not have any legitimate expectation of privacy from governmental invasion in the areas searched, as discussed in United States v. Salvucci, 448 U.S. 83, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980). The court wrote, "If the ruling of the trial court is correct for any reason, it will not be reversed." 413 So. 2d at 403.
In Wyrick, the defendant was convicted of manslaughter. Wyrick contended that the trial court erroneously overruled an objection to testimony she gave on cross-examination by determining that the testimony was admissible as evidence of motive. The Court of Criminal Appeals held that Wyrick's objection was without merit, though not for the reason that the trial court cited. The court stated, "If a trial court's ruling is correct for any reason, it will not be reversed because the court assigned the wrong reason therefor." 409 So. 2d at 974. Finally, in Lewis, the defendant made motions for discovery, demurrers to the indictment, and motions to quash the indictments, all of which the trial court denied. The Court of Criminal Appeals held that the motions were without merit and, thus, were properly denied. The court wrote:
399 So. 2d at 908. (Citations omitted.)
Undeniably, these cases stand for the proposition that an appellate court can disagree with the reasoning that the trial court gave in entering a judgment but still affirm the judgment, as long as the judgment itself is proper; indeed, this is a general proposition of law. See, e.g., Smith v. Equifax Services, Inc., 537 So. 2d 463, 465 (Ala.1988).
Williams argues that a close reading of the cases cited by the State reveals a distinction between the rule's application in those cases and in the case at bar. Specifically, Williams argues that in those cases the rule was not applied to a situation, such *989 as the one here, where the trial court made a substantive ruling that might be erroneous but that would have been justified on the basis of a prior procedural flaw. In light of that argument, we re-examine Wyrick, Lewis, and Collier.
In Wyrick, the issue concerned whether the trial court properly overruled an evidentiary objection for what may have been an incorrect reason. Similarly, in Lewis, the issue concerned whether the trial court properly overruled the motions for discovery, demurrers to the indictment, and motions to quash the indictment based upon the Alabama Rules of Civil Procedure. The Court of Criminal Appeals found the motions to be meritless, even if the trial court overruled them for the wrong reason, and, accordingly, affirmed the judgment. In neither of those cases did the trial court improperly rule on the substance of the objections or motions. In each case, the trial court heard the objection and the motions and then made its decision based upon its understanding of the substantive law. Although the trial court's understanding and application of the substantive law may have been improper, the judgment was held not to be in error, because the trial court's incorrect understanding of the law did not alter the ultimate substantive determination. The reason that it did not was that in each case, the ultimate ruling was correct.
Williams argues that Collier, too, can be distinguished by this reasoning. The merits of Collier's motion to suppress formed the issue joined at trial and the issue on which the trial court ruled; the trial court's judgment was affirmed on other substantive grounds, namely, that the defendant did not have standing to challenge the search because he had no legitimate expectation of privacy from governmental intrusion in the area searched. Again, Williams argues, the trial court's ruling was substantively correct, although not necessarily for the reasons it gave in making the ruling.
We agree with Williams that the State's cases are distinguishable, because in those cases the trial court's misunderstanding of the law did not alter the ultimate substantive determination. The appellate court in those cases did not use a procedural basis that was not asserted until appeal to justify an alleged substantive error.
Additionally, as a general proposition of law, the failure of a party to object to a matter at trial precludes the party from raising that matter on appeal as error. See, e.g., Ex parte Wilhite, 485 So. 2d 787 (Ala.1986) (objection to improper argument may not be heard for the first time on appeal); Ex parte Gilchrist, 466 So. 2d 991 (Ala.1985) (failure to object to indication by the trial court that certain jury charges had been requested by the defendant waived the objection). The State's failure to object to the untimeliness of Williams's motion waived that objection on appeal.
The trial court's ruling on Williams's Batson motion remains for us to examine. We examine Batson cases, in part, by referring to Ex parte Branch, 526 So. 2d 609 (Ala.1987), which explains how Batson is applied and interpreted by Alabama courts in light of federal holdings. The following discussion occurred with regard to Williams's Batson motion:
Williams's evidence that the State struck four of the five black venire members is sufficient evidence of discrimination to establish her prima facie case for discrimination. Branch, 526 So. 2d at 622-23. With the prima facie case established, there is a presumption that the peremptory challenges were used to discriminate against black jurors, Branch, at 623; the State then has the burden of articulating a clear, specific, and legitimate reason for the challenge that relates to the particular case to be tried and that is nondiscriminatory. Branch, at 623. We do not determine whether the reasons given for striking Franklin, Daniel, and Jennings were sufficient to withstand Williams's Batson challenge; by not determining whether the reasons given were sufficient, we do not mean to imply either that they were or that they were not sufficient. The State provided no explanation whatsoever for its strike of Connor. Accordingly, the State failed to meet its burden necessary to rebut Williams's prima facie showing of discrimination. Branch, at 622-24. The trial court thus erred when it denied Williams's Batson motion. The judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON and STEAGALL, JJ., concur. | June 22, 1990 |
0caf3449-829c-4650-851c-0a90d70beb2d | Havens v. Trawick | 564 So. 2d 917 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 917 (1990)
W. Lamar HAVENS and Ann Havens
v.
Bill TRAWICK, et al.
89-130.
Supreme Court of Alabama.
June 1, 1990.
John T. Bender, Mobile, for appellants.
Vincent F. Kilborn of Kilborn & Roebuck, Mobile, for appellees.
HORNSBY, Chief Justice.
The plaintiffs, Lamar and Ann Havens,[1] appeal from a summary judgment entered in favor of the defendants, Bill Trawick, Hamp Griffin Volvo-Subaru, and others. The Havenses alleged fraud and breach of contract. Because we find that the trial court improperly entered a summary judgment for the defendants, we reverse and remand for further proceedings.
The Havenses claim that they were defrauded by the defendants because, they say, the defendants failed to live up to an offer made in a sales advertisement. This advertisement consisted of a flier announcing a special sale of new Volvo automobiles that were within the inventory of Griffin Volvo-Subaru on certain dates and times: sale times were from 5:00 p.m. until 9:00 p.m. on Friday, January 29, 1988; from 9:00 a.m. until 9:00 p.m. on Saturday, January 30, 1988; and from 11:00 a.m. to 5:00 p.m. on Sunday, January 31, 1988. The flier also included the following language:
Ann Havens alleges that she went to Griffin Volvo-Subaru on the evening of January 29, 1988, and began discussing the possible purchase of a new Volvo with Billy *918 Trawick, a Griffin salesman. The "New Vehicle Retail Buyer's Order" that the parties partially completed shows that Mrs. Havens and Trawick were discussing the possible sale of a 1988 Volvo, Model 240DL, four-door automobile, with black exterior, charcoal-colored interior, and nonmetallic paint. Neither Mrs. Havens nor Trawick or any other official of Griffin Volvo-Subaru executed the buyer's order form.
Mrs. Havens and Trawick entered into a discussion of the price to be paid for a Volvo 240DL. She says that Trawick told her that the lowest price for which he could sell a 240DL was $11,792.12. She alleges that when Trawick told her that the lowest price for which he could sell her a 240DL was $11,792.12, including her trade in, she felt that she had made her "best deal." This dispute arose, Mrs. Havens said, when she determined that she had made her best deal and then tendered the $1,000 draft and demanded that the price be reduced by the amount of the draft, and the draft was refused by Trawick. Mrs. Havens stated in her deposition that Trawick became "white as a ghost" when she produced the draft and that he immediately went to talk to his sales manager. Mrs. Havens said Trawick told her that the draft applied only to certain models and not to the 240DL's.
It appears that at the end of Friday night's negotiations Trawick gave Mrs. Havens his card with the price "$11,792.12" written on the back. She says that he again told her that this was the "rock bottom" price for which he could sell her a 240DL. She also says that Trawick told her to talk about the deal with her husband and that the $1,000 draft could not be deducted from the sale price. She says that he told her to come back Saturday and that they would then "finalize" the sale.
Ann Havens was given a blue Volvo 240DL to drive home from the dealership on Friday night. However, there is evidence that Havens did not want this vehicle. Moreover, it appears that this vehicle was loaned to her because her "trade in" would have exceeded 50,000 miles on the trip back to her home and thereby would have substantially decreased in value.
The record is unclear regarding what, if anything, occurred on the following Saturday and Havens did not contact any Griffin representative on Sunday, January 31. The following day, and for the next several days, Ann Havens made numerous telephone calls to the dealership in an attempt to talk with Hamp Griffin, the owner of the dealership. She alleges that each time she called she was referred to a Mr. Hardman, who, she says, "pretended like he didn't know" her. She stated at one point in her deposition that Hamp Griffin told her that he could not deduct the $1000 from the price of the automobile because if he did he would lose money. She contends that Griffin told her that he had sold 30 Volvos over the weekend and that he had "plenty of customers."
The Havenses claim that Ann negotiated a "best deal" with Trawick pursuant to the terms of the flier that the Havenses had received in the mail. Ann's deposition testimony indicates that she negotiated a final sale price, including a trade-in allowance of over $6,000 for her 1984 Oldsmobile. Ann alleges that the final price stated of $11,792.12 was represented by Trawick to be the "rock bottom" price for which Griffin Volvo-Subaru would sell her a car. We find persuasive the following exchange that took place during Ann Havens's deposition:
During this deposition, Ann Havens was asked if she was aware that the vehicle for which the "best deal" was to be struck must be in the inventory of Griffin Volvo-Subaru before Griffin would be bound to honor the $1,000 draft. Ann stated that she was aware of that requirement. She argued that she had decided that she wanted a 240DL, and that there were several in stock, but that she simply had not decided which color she wanted. Ann also states that she assumed that the draft would be good for any 240DL in inventory with the options she wanted: a trim package, protection package, retractable antenna, and AM/FM radio-cassette player. Ann argues that she would have taken a 240DL that Griffin had on the lot if a price could be agreed upon. She alleges that she had made her "best deal" at the point when Trawick informed her that $11,792 was the "rock bottom" price for which Griffin could sell her a 240DL that was equipped like she wanted.
The central question to be answered in this appeal is whether the plaintiff has produced any evidence that she in fact had made her "best deal," as she was invited to do by Griffin Volvo-Subaru. If she had not made a "best deal," summary judgment would be proper. Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.
In reviewing a summary judgment, this Court will take into account the same factors considered by the trial court in initially ruling on the motion for summary judgment. Ex parte Bagby Elevator & Elec. Co., 383 So. 2d 173 (Ala.1980). If the reviewing court is left with a reasonable doubt as to the existence of a genuine issue of material fact, that doubt must be resolved against the moving party, in this case the defendants. Bogle v. Scheer, 512 So. 2d 1336 (Ala.1987). However, speculative evidence will not suffice to create a genuine issue of fact for trial. Richardson v. Kroger Co., 521 So. 2d 934 (Ala.1988). The trial court must avoid weighing issues of fact and must decide only whether there are genuine issues of material fact for a jury. Grimes v. Massey Ferguson, Inc., 355 So. 2d 338 (Ala.1978); James v. State Farm Fire & Casualty Co., 405 So. 2d 712 (Ala.Civ.App.1981). Because the Havenses allege fraud on the part of Griffin Volvo-Subaru, they must necessarily produce evidence that the defendant made a false representation of material fact. P & S Business, Inc. v. South Central Bell Telephone Co., 466 So. 2d 928 (Ala.1985).
The complaint in this cause was filed in the trial court on May 9, 1988; therefore, the "substantial evidence" rule applies to the ruling on the motion for summary judgment. Code 1975, § 12-21-12. The question here is whether the Havenses produced substantial evidence tending to prove that they in fact had made a "best deal" on a car in Griffin Volvo-Subaru's inventory.
Based upon our review of the materials in the record before us, including the deposition of Ann Havens and the buyer's order form, we conclude that a jury question is presented regarding whether Ann Havens had made her best deal, as invited by Griffin Volvo-Subaru. The materials before us indicate that Ann Havens entered into negotiations with representatives of Griffin *920 Volvo-Subaru to purchase a 240DL. The buyer's order form discloses that the sale contemplated a purchase of a black Volvo with charcoal-colored interior; Griffin contends that there was no black Volvo in inventory at the time of these negotiations. Moreover, the buyer's order form was not executed by either Ann Havens or any representative of Griffin Volvo-Subaru.
Ann Havens says that she did not care about the color of the car on which she claims to have concluded an agreement to purchase. In her deposition she alleges that she would have taken any 240DL that Griffin had in inventory "as long as she could use her check." Ann Havens stated that she and Trawick discussed the purchase of a 240DL. It is undisputed that there were several automobiles of that model in the inventory of Griffin Volvo-Subaru at that time. She also alleged that Trawick quoted her a "rock bottom" price for a 240DL, but then refused to deduct the draft from the stated price. Moreover, she alleged that Hamp Griffin stated in a telephone conversation that he could not sell her a 240DL for the price stated less the draft because if he did so he would lose money on the deal. Havens also stated that she had incurred certain expenses in pursuing the proposed purchase from Griffin Volvo-Subaru.
Fraud in the legal sense is committed when a misrepresentation of material fact, one that would induce the injured party to take action, is made. Reeves v. Porter, 521 So. 2d 963, 967 (Ala.1988); Speigner v. Howard, 502 So. 2d 367 (Ala. 1987). See, also, Code 1975, § 6-5-101. The representations contained in the Griffin Volvo-Subaru advertisement were material, and we believe that the Havenses produced sufficient evidence, i.e., such evidence that reasonable minds, exercising impartial judgment, could conclude that the defendants had committed a fraud. Home Bank of Guntersville v. Perpetual Savings & Loan Ass'n, 547 So. 2d 840 (Ala. 1989). See, also, Code 1975, § 12-21-12 et seq.
Based upon the foregoing, we conclude that the summary judgment was not proper. Therefore, that judgment is reversed and this cause is remanded for further proceedings.
REVERSED AND REMANDED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Mr. Havens was a party to this suit pursuant to the complaint filed by the Havenses. However, the record does not disclose how he was involved in the transactions that gave rise to this dispute. | June 1, 1990 |
b84bbfec-471b-4d3f-8bc8-c6396869e311 | McMillian v. Wallis | 567 So. 2d 1199 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1199 (1990)
Jackie Stuart McMILLIAN
v.
Ken WALLIS, et al.
89-132.
Supreme Court of Alabama.
June 15, 1990.
Rehearing Denied September 14, 1990.
*1200 James A. Hall of Parsons & Hall, Tuscaloosa, for appellant.
G.R. "Rick" Trawick, Montgomery, for appellees.
*1201 HOUSTON, Justice.
Jackie Stuart McMillian appeals from a judgment in favor of defendants Charles A. Fetner, director of Bryce Hospital; Ken Wallis, commissioner of the Alabama Department of Mental Health and Mental Retardation[1]; and Dr. Cynthia Bisbee, Dr. Humphrey Osmond, and Patricia Scheiffler-Roberts members of the treatment team at Bryce Hospital in charge of David Mayo Stuart, an inmate at Bryce Hospital. (Hereinafter these defendants are collectively referred to as the "Mental Health defendants.")[2] McMillian sued the Mental Health defendants for alleged wrongful and/or negligent release of Stuart from Bryce Hospital, and she sought monetary damages for injuries that she suffered as a result of an assault and battery committed on her by Stuart subsequent to his release. The ultimate issue presented is whether the trial court erred in holding that the defendants were engaged in the exercise of a discretionary function (so as to have substantive immunity) and were therefore immune from suit.
Summary judgment for the defendant is proper when there is no genuine issue of a material fact and the defendant is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. When the defendant has sought a summary judgment, all inferences must be viewed in the light most favorable to the plaintiff, and all reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the defendant. Wilson v. Brown, 496 So. 2d 756 (Ala.1986). This case was pending on June 11, 1987; therefore, the applicable standard of review is the "scintilla rule." See, Ala.Code 1975, § 12-21-12.
Judge J.B. Baird's "Memorandum Opinion" presented, in complete and masterful fashion, the statement of the case, the statement of the facts, and the applicable law pertaining to substantive immunity. Therefore, we adopt the following portions of Judge Baird's opinion as part of our own:
As that order indicates, this Court, in Barnes v. Dale, 530 So. 2d 770 (Ala.1988), recognized the fact that the very nature of the mental health profession involved discretion and difficult decision making. Realizing the difficulty in interpreting this discretionary function standard (see Barnes v. Dale, supra; Hickman v. Dothan City Bd. of Educ., 421 So. 2d 1257 (Ala.1982); DeStaffney, supra; and Bell v. Chisom, 421 So. 2d 1239 (Ala.1982)), this Court must look at the circumstances of each case and focus on the process employed by the defendants in making their decision, in order to decide whether a defendant is immune from liability based on such discretion.
Judge Baird held:
We agree with the trial court's holding that no statutory authority requires the establishment of a hospital review board or requires that a hospital review board review any patient with a history of violent behavior or criminal conduct prior to release from Bryce Hospital. Therefore, we hold, as the trial court did, that the very act of implementing a hospital review board was an exercise of discretionary function. Therefore, we affirm as to Fetner[4] and Wallis.[5]
Thus the remaining issue for our review is whether Stuart's release without review by the hospital review board was an exercise of discretion or whether the decision to release Stuart was constrained by internal procedures that required his referral to the hospital review board prior to his release.
In support of their motions for summary judgment, Dr. Bisbee and Ms. Scheiffler-Roberts stated in their affidavits that "[i]t was a professional decision whether or not [Stuart] should have been presented to the Hospital Review Board prior to release" and that "the procedures did not require that [Stuart] be reviewed by the Board prior to his release." They further stated that, although they did not personally release Stuart from Bryce Hospital, it was their professional opinion that "Stuart was appropriate to be released from Bryce Hospital." Dr. Osmond stated that based on his professional judgment he released Stuart after consultation with the other members of the treatment team and that he was within the discretionary authority *1204 granted to him by the Alabama Department of Mental Health and Mental Retardation.
Thus Dr. Bisbee, Ms. Scheiffler-Roberts, and Dr. Osmond presented a prima facie showing that their decision not to refer Stuart to the hospital review board was based on their professional judgment, evidencing an exercise of discretion. Therefore, it was incumbent upon Ms. McMillian to come forth with evidence to rebut that prima facie showing.
In opposition to Dr. Bisbee's, Ms. Scheiffler-Roberts's, and Dr. Osmond's motions for summary judgment, Ms. McMillian submitted the sworn affidavit of John R. Goff, Ph.D., former chief of psychology at Bryce Hospital, Goff's deposition testimony, and the rules and regulations promulgated by Fetner regarding the review of certain patients by the hospital review board prior to their release, which in pertinent part, are as follows:
Dr. Goff stated in his affidavit that "the Review Board was responsible to review the cases of all individuals scheduled for release who had ... violent histories in the community; ... [t]his was a primary function of the board; [t]his was not considered to be a matter of choice by the treating personnel, but was, rather, a requirement of policy; [w]hile a discretionary issue may have been present, that discretionary issue was whether or not the opinion of the Hospital Review Board would necessarily override the treating personnel." Dr. Goff further stated in his affidavit, which was supported by his deposition testimony, as follows:
Without question, the matters material to the issue before us are based almost exclusively on Stuart's hospital records, which could possibly reveal a history of violent behavior that, under the established mandatory procedures implemented for the hospital review board, would have required that the treatment team refer Stuart to that board prior to his release. We have searched the record on appeal for Stuart's hospital records that show a history of violent behavior. However, we found no such medical records or certified copies thereof pertaining to Stuart. Nothing in the record affirmatively shows that Dr. Goff had personal knowledge of Stuart's behavioral history. Thus, without the hospital records themselves, Dr. Goff's affidavit and his deposition testimony purporting to describe the substance or contents of these records constitute inadmissible hearsay. See Rule 56(b), Ala.R.Civ.P.; see, also, Welch v. Houston County Hospital Board, 502 So. 2d 340 (Ala.1987).
However, in Perry v. Mobile County, 533 So. 2d 602, 604-05 (Ala.1988), adopting the language from C. Wright, A. Miller, and M. Kane, Federal Practice and Procedure: Civil 2d § 2738 (1983), we held:
This Court may have caused some confusion among the bench and bar as to whether a party must move to strike an affidavit or must object to questions propounded in depositions in order to keep objectionable evidence from being considered by the trial court in ruling on a motion for summary judgment. Welch v. Houston County Hospital Board, supra; Perry v. Mobile County, supra. We hope to clarify this by this opinion.
In the instant case, Dr. Bisbee, Ms. Scheiffler-Roberts, and Dr. Osmond filed no motion to strike and entered no objections to Goff's affidavit or deposition testimony. No ruling on the matter was invoked. See Perry v. Mobile County, supra. Because they did not call the court's attention to the fact that Goff's affidavit was inadmissible, they waived any objection to our considering the evidence contained in that affidavit. Likewise, because Dr. Bisbee, Ms. Scheiffler-Roberts, and Dr. Osmond did not call the court's attention to the fact that Goff's deposition was inadmissible, under the rationale of Perry v. Mobile County, supra, they waived any objection to our considering the evidence contained in that deposition. Therefore, considering Goff's affidavit and deposition testimony, we hold that Ms. McMillian presented a scintilla of evidence that Dr. Bisbee, Ms. Scheiffler-Roberts, and Dr. Osmond were not exercising a discretionary function and thus were not entitled to the umbrella of substantive, qualified immunity *1206 from liability for their failure to refer Stuart to the hospital review board prior to his release.
Based on the foregoing, we must reverse the summary judgment in favor of Dr. Bisbee, Ms. Scheiffler-Roberts, and Dr. Osmondmembers of the treatment team at Bryce Hospital in charge of Stuartand we remand this cause for further proceedings consistent with this opinion as to these defendants. We affirm as to the other defendants.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] As we point out in footnote five, there is no indication in the record that Wallis had any involvement in the events leading to this lawsuit except in his official capacity. He no longer holds the commissioner's office. See Rule 43(b), Ala.R.App.P.
[2] Originally Ms. McMillian also named Dr. Alan Goodwin, executive director of Indian Rivers Community Mental Health and Retardation Center, as a party defendant, but she later dismissed him.
[3] Although Ms. McMillian's complaint against the Mental Health defendants contains three other counts, they are not involved in this appeal.
[4] Ms. McMillian presented no evidence that Fetner had any involvement in the decision not to refer Stuart to the hospital review board or in the decision to release Stuart from Bryce Hospital, other than in his capacity as director of Bryce Hospital.
[5] Ms. McMillian presented no evidence that Wallis exercised any control over the administrative or clinical functions of Bryce Hospital or had any involvement in the decision to release Stuart from Bryce Hospital, other than in his capacity as commissioner of the Department of Mental Health and Mental Retardation. | June 15, 1990 |
4193ebf4-6b95-4890-b8a2-e89361667a94 | Beverly v. Chandler | 564 So. 2d 922 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 922 (1990)
Mary BEVERLY, as next friend and mother of Yvonne Beverly; and Mary Beverly, individually
v.
Dr. Michael A. CHANDLER.
89-251.
Supreme Court of Alabama.
June 15, 1990.
John F. Kizer, Jr. of Kizer & Bennitt, Birmingham, for appellant.
Walter W. Bates and Silas G. Cross, Jr. of Starnes & Atchison, Birmingham, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment for one defendant in a case involving a medical malpractice claim brought pursuant to the Alabama Medical Liability Act and a products liability claim brought pursuant to the Alabama Extended Manufacturer's Liability Doctrine. Yvonne Beverly, minor daughter of Mary Beverly, came to Cooper Green Hospital in Jefferson County, Alabama, in labor, on January 2, 1983. Doctors at Cooper Green Hospital delivered her baby boy and discharged her three days later. She returned to the hospital the day after she was discharged, complaining of chills and fever and pain in her pelvic region. She was seen by Dr. Michael Chandler at that time. Dr. Chandler noted that she had a post-partum infection and prescribed antibiotics and medications to relieve pain and fever. This is the only instance in which Dr. Chandler saw Yvonne Beverly.
On January 8, 1983, Yvonne Beverly returned again to the hospital, complaining of seizures. She was treated by another doctor, who diagnosed eclampsia and ordered that she be given four milligrams of magnesium sulfate IV soluset. She collapsed while in the X-ray department of the hospital. A blood sample revealed that Yvonne Beverly had been given approximately ten times the prescribed dosage. Her mother, Mary Beverly, filed this action against Cooper Green Hospital; a nurse; certain named doctors, including the defendant involved *923 in this appeal, Dr. Michael A. Chandler; and American Quinine, Inc., the manufacturer of the magnesium sulfate IV soluset. Her complaint asserted that Yvonne Beverly had suffered brain damage and neurological injuries as a result of the overdose, and she sought general damages and costs.
Over the course of the case, the trial court entered summary judgment for various defendant doctors. Defendants Cooper Green Hospital and Lanette Wilkerson, R.N., entered into a pro tanto, pro ami settlement with Mary Beverly, as did American Quinine, Inc. After the settlement with Cooper Green Hospital, an article was published in the Birmingham Post-Herald on December 21, 1988, which contained a statement by one of Mary Beverly's attorneys, Jeffrey W. Bennitt, in which Mr. Bennitt said, in essence, that Dr. Chandler had committed professional negligence in his treatment of Yvonne Beverly. Discussions ensued between Dr. Chandler's attorney and Mr. Bennitt, culminating in Mr. Bennitt's promising to dismiss the case against Dr. Chandler in return for Dr. Chandler's promise to refrain from bringing a lawsuit alleging abuse of process or malicious prosecution or based upon what Dr. Chandler claimed was a defamatory statement.
This agreement, that Dr. Chandler would be dismissed as a party defendant, was confirmed in a letter dated January 10, 1989. However, on April 10, 1989, Mr. Bennitt's law partner and co-counsel, John F. Kizer, Jr., advised the attorney for Dr. Chandler that Mary Beverly had decided to repudiate the agreement. On September 12, 1989, Dr. Chandler filed a motion for summary judgment, supported by his own affidavit and that of his attorney, Walter W. Bates. Mary Beverly filed a motion in opposition, with the supporting affidavit of Jeffrey W. Bennitt. Mr. Bennitt contended, in opposition, that while he had informed Mr. Bates that Dr. Chandler would be dismissed as a party defendant, he had done so without authority from Mary Beverly.
The trial court held an in camera examination of the employment contract between Mary Beverly and her attorneys. The trial court entered a summary judgment, made final pursuant to Rule 54(b), A.R.Civ.P., on the grounds that "plaintiff specifically authorized and gave authority to counsel to settle or resolve the case." (C.R. 859.) Mary Beverly appeals from this judgment.
We must determine whether Mrs. Beverly can repudiate a settlement agreement entered into by her attorney who has a written contract authorizing him to settle or resolve the case on her behalf. Her attorneys now argue that the contract of employment between them and Mary Beverly is void as against public policy, and thus that the trial court erred in entering the summary judgment for Dr. Chandler. We have carefully reviewed the record and the evidence in this case. Because of the specific authority given to the attorneys by the contract, we must affirm the summary judgment.
The contract Mary Beverly made with her attorneys and the settlement agreement made by her attorneys with Dr. Chandler are both governed by principles of contract law and are as binding on the parties as any other contract is. It is elementary that an agreement, with consideration, between two or more contracting parties, with a legal object and with legal capacity, is binding on the parties. Gray v. Reynolds, 514 So. 2d 973 (Ala.1987), quoting Freeman v. First State Bank of Albertville, 401 So. 2d 11 (Ala.1981).
This Court has stated that agreements made in settlement of litigation are as binding on the parties as any other contracts are:
King v. Travelers Ins. Co., 513 So. 2d 1023 (Ala.1987), quoting Brocato v. Brocato, 332 *924 So. 2d 722 (Ala.1976). Indeed, there is a strong policy in the law favoring compromise and settlement of litigation. Porter v. Porter, 441 So. 2d 921, 923 (Ala.Civ.App. 1983).
Usually, an attorney cannot settle a client's case without consultation with the client. Davis v. Black, 406 So. 2d 408 (Ala. Civ.App.1981), Nero v. Material Sales Co., 340 So. 2d 454 (Ala.Civ.App.1976). Canon 7 of the Code of Professional Responsibility of the Alabama State Bar addresses this as well. However, a client can give express authority to his or her attorney to act, by signing an employment contract that gives this authority, as was done in this case.
The case before us presents a situation similar to the one we considered in Mitchum v. Hudgens, 533 So. 2d 194 (Ala.1988). We held in Mitchum that an attorney, employed by a liability insurer to defend a medical malpractice claim filed against its insured, could settle the claim against his client without prior notice to or consent from the client, by virtue of a contractual provision expressly authorizing the insurance company to settle the claim at its discretion. In Mitchum, the language in the policy read: "We have the right to investigate, negotiate and settle any suit or claim, if we think that is appropriate." Id. at 196. This language is very similar to the language contained in the contract between Mary Beverly and her attorneys. The relevant portion of their agreement read: "I give and grant unto him full power to act as my attorney, to institute suit on said claim, to prosecute said suit, to settle said claim at his discretion before or after suit is instituted and to take any and all steps which he deems proper and desirable."
In this case, the contract entered into between Mary Beverly and her attorneys expressly authorized them to settle or resolve her case. The authority given them was clear and unequivocal, with no limitations or restrictions expressly placed upon the power to compromise or settle. Furthermore, the record is devoid of any evidence to indicate that Mary Beverly ever revoked this express grant of authority to her attorneys.
As stated above, Mary Beverly contends that the agreement she had with her attorneys is void as an illegal contract against public policy. The rule has been stated as follows:
Taylor v. Martin, 466 So. 2d 977, 979 (Ala. Civ.App.1985). This contract between Mary Beverly and her attorneys does not meet this test and is therefore not void or illegal.
While we conclude, for the reasons stated above, that the judgment of the trial court is due to be affirmed, we would note that this case presents an example of the need for open and complete communication between attorney and client, so as to avoid any possible misunderstanding.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | June 15, 1990 |
6678e119-d48e-4c89-9a7b-13245af8d9aa | Ex Parte Fortier | 564 So. 2d 1043 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 1043 (1990)
Ex parte Kenneth Joseph FORTIER, Jr.
Re Kenneth Joseph Fortier, Jr., alias
v.
State.
89-1072.
Supreme Court of Alabama.
June 22, 1990.
Charles M. Law, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 564 So. 2d 1041.
ALMON, Justice.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | June 22, 1990 |
9a6f88c6-e2e8-4aa4-bb99-5d0e2a41e55a | Bodiford v. Lubitz | 564 So. 2d 1390 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 1390 (1990)
Hilda BODIFORD
v.
Jonathan J. LUBITZ, D.P.M.
88-976.
Supreme Court of Alabama.
May 25, 1990.
Richard L. Watters of Howell, Johnston, Langford & Watters, Mobile, for appellant.
R. Alan Alexander of Brown, Hudgens, Richardson, Mobile, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment entered in favor of Dr. Jonathan J. Lubitz in a case wherein the plaintiff, Hilda J. Bodiford, alleged that Dr. Lubitz was negligent in his treatment of problems she was having with her right foot. She alleges that Dr. Lubitz failed to inform her of the more conservative alternative treatments for her problems prior to performing surgery on her, and that he also failed to inform her that he was going to remove a bone from her right foot during surgery. We reverse and remand.
First, Bodiford argues that she offered sufficient expert testimony that Dr. Lubitz deviated from the proper standard of care in failing to attempt more conservative treatment prior to surgery. In support of her position, she offered the testimony of Dr. Ruskusky, a podiatrist from Illinois, as well as the testimony of Dr. Zarzour, an orthopedic surgeon from Mobile. The deposition of Dr. Ruskusky is insufficient to establish a deviation from the proper standard of care, because the final analysis of Dr. Ruskusky was that he could not say, without examining the patient, that Dr. Lubitz deviated from that standard. Therefore, the only expert testimony offered in support of Bodiford's position was that of Dr. Zarzour, who is not a podiatrist. In Craig v. Borcicky, 557 So. 2d 1253 (Ala.1990), we considered whether an expert in one discipline was qualified to testify as to the proper standard of care in another discipline related to, but nevertheless different from, his own. In Craig, Dr. Borcicky was a licensed podiatrist and the plaintiff attempted to offer the testimony of an orthopedic surgeon, Dr. Zarzour, to show that Dr. Borcicky had been negligent. We stated as follows:
Craig, supra at 1256. Our review of the case action summary sheet indicates that Bodiford was granted her motion to show the videotape of Dr. Zarzour's deposition to the jury.[1] However, that videotape was not submitted to us on appeal for us to consider whether Dr. Zarzour's testimony would fall within the exception this Court recognized in Wozny v. Godsil, 474 So. 2d 1078 (Ala.1985). See Craig, supra at 1257, wherein we noted that in "an appropriate case," an orthopedic surgeon who is familiar with the standard of care for podiatrists may be considered an expert in the area of podiatry. In Craig, the orthopedic surgeon stated that he was not familiar with the podiatric standard of care. In the case sub judice, the qualifications of Dr. Zarzour are not in the record and we cannot determine whether he was familiar with the podiatric standard of care; therefore, because the burden is on the appellant to show reversible error, we conclude, based on the record before us, that the trial court did not err.
Nevertheless, we reverse the judgment and remand this case on the authority of that portion of our decision in Craig wherein we addressed the issue of the patient's informed consent. In that case, Craig alleged that Borcicky did not have her informed consent to do all of the procedures he performed upon her; in fact, she alleged that she specifically instructed him not to do them. Id. at 1257. Furthermore, she alleged that the handwritten information that was on the authorization form that she signed was not there at the time that she signed it. Id. In the case at bar, Bodiford contends that she was never informed that Dr. Lubitz intended to remove the weight-bearing head of the fifth metatarsal on her right foot during surgery. She also asserts that he did not make her aware of the possibility of the potential recurrence of the neuroma that he also removed during surgery. Neither of these two things was mentioned on the two consent forms that she signed. Dr. Lubitz, on the other hand, disputes Bodiford's allegations and alleges that she was made aware of these things prior to surgery. His clinical data sheet indicates that on July 23, 1985, he explained the possibility of the removal of "the inflamed nerve [of] the large 5th met." As in Craig, supra, there is clearly "a dispute between the parties as to whether [the patient] had consented to the procedures that allegedly caused her injury." Id.
For the foregoing reasons, this summary judgment is due to be, and it hereby is, reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
[1] The motion was made and granted for Bodiford to show the videotaped deposition to the jury. That motion, however, became moot when summary judgment was entered. | May 25, 1990 |
bf7f501f-e434-4eea-aaac-16e352ed6017 | Withers v. Mobile Gas Service Corp. | 567 So. 2d 253 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 253 (1990)
William J. WITHERS and Victoria G. Withers
v.
MOBILE GAS SERVICE CORPORATION and Ruffin Graham.
88-1635.
Supreme Court of Alabama.
June 8, 1990.
Rehearing Denied August 31, 1990.
Vaughan Drinkard, Jr. and C. Gary Hicks of Drinkard, Sherling & York, Mobile, for appellants.
Joseph S. Johnston and James C. Johnston of Johnston, Hume & Johnston and J.P. Courtney III and Oby T. Rogers of Lyons, Pipe & Cook, Mobile, for appellee Mobile Gas Service Corp.
Philip H. Partridge and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, P.C., Mobile, for appellee Ruffin Graham.
*254 SHORES, Justice.
The plaintiffs, William J. Withers and Victoria G. Withers, appeal from summary judgments granted in favor of the defendants Mobile Gas Service Corporation and Ruffin Graham.
On June 6, 1988, the plaintiffs granted the Mobile Gas Service Corporation (hereinafter referred to as "Mobile Gas") a right-of-way easement "to construct, lay, maintain, operate, alter, repair, replace, change the size of, remove and abandon a pipeline or pipelines and appurtenances thereto, including, but not limited to, fittings, tie-overs, valves and cathodic protection facilities" on the plaintiffs' property near Fowl River in Mobile County. The document also provided for a 20-foot temporary easement parallel to the first easement and further provided that the pipeline be buried at least 30 inches below the ground. Defendant Ruffin Graham was the employee of Gaylord Lyon & Company, an independent contractor used by Mobile Gas to negotiate right-of-way agreements with landowners in the area where the pipeline was to be installed. Graham negotiated with the Witherses for the easement in question.
This controversy arose when Mobile Gas proposed installing an above-ground block valve on the pipeline within the Witherses' easement area. The device was 7 feet high by 12 feet long by 4 inches wide. The plaintiffs filed suit against Mobile Gas on September 29, 1988, seeking in count 1 a judgment declaring that Mobile Gas was not entitled to install the block valve on the land subject to the easement and a permanent injunction prohibiting Mobile Gas from installing the block valve. The plaintiffs also sought a temporary restraining order or a preliminary injunction enjoining Mobile Gas from installing the block valve. Injunctive relief was denied. In count 2 of the complaint, the plaintiffs sought damages for alleged fraudulent representations by Mobile Gas that no part of the pipeline would be above the soil. In count 3, the plaintiffs sought a cancellation of the easement deed. In count 4, the plaintiffs sought $25,000 in damages for injuries and loss allegedly caused when Mobile Gas entered on their property and operated machinery and placed construction tools and pipe beyond the 20-foot temporary easement.
On March 7, 1989, the plaintiffs filed an amended complaint. Count 5 of this amended complaint added Ruffin Graham as a defendant and alleged that Graham and Mobile Gas had had a duty to tell the plaintiffs that the block valve would be placed on their property. The plaintiffs sought $250,000 because of the alleged negligence of the defendants in failing to communicate this fact, claiming a loss of property value and claiming mental anguish resulting from the alleged danger posed by the block valve. In count 6 of the amended complaint, the plaintiffs sought damages for Mobile Gas's alleged negligent supervision of Ruffin Graham in failing to adequately advise him of the placement of the block valve.
On July 13, 1989, the Mobile County Circuit Court entered a summary judgment for Mobile Gas, and made that judgment final pursuant to A.R.Civ.P. 54(b). The court also entered a summary judgment in favor of Ruffin Graham, and made that judgment final pursuant to A.R.Civ.P. 54(b).
Appellee Ruffin Graham has filed a motion with this Court to strike and exclude from our consideration, with respect to claims made against him, the deposition testimony of George Morris Yon, Maurice McIntyre, and Jimmie L. Butler. This motion is based upon the ground that the depositions were taken before Graham was made a party to the suit. The appellants do not object to the exclusion of this testimony as to Graham. We find that this testimony should be excluded in accord with A.R.Civ.P. 32(a), because at the time of the taking of these depositions Ruffin Graham was not a "party who was present or represented at the taking of the deposition or who had reasonable notice thereof."
The Witherses argue on appeal that genuine issues of material fact exist as to (1) whether the defendants committed fraud against them, (2) whether Mobile Gas negligently supervised Ruffin Graham, (3) *255 whether Graham negligently failed to advise them of the location of the block valve, (4) whether they are entitled to declaratory relief, and (5) whether the defendants trespassed on their property by going beyond the area subject to the temporary easement. The Witherses also argue that the trial court erred in granting the motion of defendant Mobile Gas to strike a portion of the deposition of Maurice McIntyre.
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. A.R.Civ.P. 56(c), Ray v. Montgomery, 399 So. 2d 230 (Ala. 1980). In support of its motion for summary judgment on the fraud claim, Mobile Gas introduced the easement document executed by the Witherses and Mobile Gas. The Witherses counter the motion by offering evidence of oral statements allegedly made by representatives of Mobile Gas before the easement document was executed. The alleged oral representations were that the pipeline would be totally buried and that the Witherses would not even know it was there. The Witherses claim that they were induced by these alleged fraudulent representations to execute the agreement. The Witherses, however, executed a document which by its terms expressly allows Mobile Gas to place the block valve on their property. It is true that fraud can be an exception to the parol evidence rule. Nelson Realty Co. v. Darling Shop of Birmingham, 267 Ala. 301, 101 So. 2d 78 (1957). Actionable fraud, however, requires justifiable reliance. Hickox v. Stover, 551 So. 2d 259, 263 (Ala.1989). This reliance is assessed as follows:
Southern States Ford, Inc. v. Proctor. 541 So. 2d 1081, 1091-92 (Ala.1989) (Hornsby, C.J., concurring specially).
The document that the Witherses signed granted Mobile Gas the right "to construct, lay, maintain, operate, alter, repair, replace, change the size of, remove and abandon a pipeline or pipelines and appurtenances thereto, including, but not limited to, fittings, tie-overs, valves and cathodic protection facilities." (Emphasis added.) The Witherses claim that this language is ambiguous with respect to whether the appurtenances were to be above or below the ground and, thus, that this language did not apprise them of the possible installation of an above ground device. Whether a contract is ambiguous is a legal question to be decided by the trial court. Cherokee Farms, Inc. v. Fireman's Fund Ins. Co., 526 So. 2d 871, 873 (Ala. 1988). Furthermore, "[t]he words of a contract are to be given their ordinary meaning, and the intention of the parties is to be derived from the provisions of the contract." Smith v. Citicorp Person-To-Person Financial Centers, Inc., 477 So. 2d 308, 310 (Ala.1985). The language providing that the pipeline itself was to be buried at least 30 inches below the ground does not create an ambiguity as to whether the appurtenances were also to be buried. The sentence containing that language reads in full as follows:
Thus, the appurtenances were considered a separate feature, and while the pipeline itself was required to be buried, the appurtenances were not. Further, Mr. Withers testified that he knew that a cathodic protection facility was an above-ground device. Mr. Withers cannot be said to have failed to realize that the document granted *256 Mobile Gas the right to install above-ground devices or to have justifiably relied on Graham's alleged prior representations that everything would be buried. Accordingly, the trial court properly entered summary judgment on the fraud claim.
Next, the Witherses claim that Mobile Gas negligently supervised its agents, particularly Ruffin Graham, and that Graham negligently failed to advise them of the block valve. Their argument under this claim, however, is merely that Mobile Gas is liable for the alleged fraud of Ruffin Graham and that the defendants had a duty under Fennell Realty Co. v. Martin, 529 So. 2d 1003 (Ala.1988), to disclose the installation of the above-ground block valve on their property. It is true, as the Witherses allege, that a principal may be held liable for "the fraud of its agent, committed in the course of his employment, where others rely on the fraudulent misrepresentations to their detriment." Arkel Land Co. v. Cagle, 445 So. 2d 858 (Ala. 1983). Justifiable reliance is still a necessary element of the alleged fraud and, as discussed above, this requirement was not met. In this case, the easement document provided for the installation of a pipeline and appurtenances, including block valves. There was evidence that the Witherses read the contract, that Mr. Withers was a sophisticated businessman, that they had a lawyer read over the contract, and that they deleted one proposed provision that they did not agree with. In Fennell, the contract signed by the plaintiffs stated that the heating and air conditioning system in a house they were buying would be in working order and it was not. There was evidence that the plaintiffs were told when they inspected the house and again at closing that the system was in operable order. Thus, unlike the Witherses, the plaintiffs in Fennell were not apprised of the true situation by the document they signed. Therefore, summary judgment was correctly entered for Mobile Gas and Graham on counts 5 and 6.
The Witherses argue that the trial court erred in entering Mobile Gas's summary judgment as to their claim for declaratory relief. The Witherses make the same claims as discussed above, that the easement document was ambiguous as to whether the appurtenances would be above-ground devices and that the defendants fraudulently represented that all the parts of the pipeline would be below ground. As discussed above, there was no justifiable reliance on the alleged fraudulent representations, and it was the province of the trial judge to determine whether the agreement was ambiguous. Obviously, he determined that the document was not ambiguous. Thus, under the terms of the easement document, Mobile Gas had the right to install the block valve, and summary judgment as to the declaratory relief sought was properly entered.
The Witherses allege that Mobile Gas construction crews trespassed by going outside the temporary 20-foot working easement. The superintendent for the construction crew admitted that the workers went outside the area subject to the easement when they were crossing Fowl River. He claims, however, that the swampy conditions at the river crossing required that they go outside the easement while constructing and laying the pipe. In Plantation Pipe Line Co. v. Locke, 290 F. Supp. 752 (N.D.Ala.1968), the court enjoined landowners from interfering with a pipeline company's use of working space beyond the area of the easement granted to them. The court found that it was impossible for the company to place the pipeline in the area subject to the easement without using adjacent working space for their crews and equipment. The court held it would be "presumed that the parties in good faith bargained for, and the grantee was granted" the necessary additional space, unless the contract specified otherwise.
In this case the easement document originally contained the following proposed provision:
The Witherses, however, objected to Mobile Gas's taking such additional width as it deemed reasonably necessary. Thus, this provision was deleted from the easement document. When it became obvious that Mobile Gas needed additional working space, Mobile Gas attempted to obtain a lease from the Witherses for this space. The Witherses, however, refused to lease additional space. The construction crew for Mobile Gas used the additional space anyway. It was clear in this case that the parties did not intend for the easement agreement to provide for additional working space for Mobile Gas. Thus, the summary judgment was incorrectly entered for Mobile Gas on the trespass claim.
Last, the Witherses argue that the trial court erred in granting a motion by Mobile Gas to strike part of Maurice McIntyre's deposition. The trial court excluded a question asked of McIntyre and his answer as to whether Ruffin Graham knew there would be above-ground appurtenances. This testimony was correctly excluded because it called for improper testimony by McIntyre as to Graham's knowledge. C. Gamble, McElroy's Alabama Evidence § 128.08 (3d ed. 1977).
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
JONES, HOUSTON and KENNEDY, JJ., concur.
HORNSBY, C.J., concurs in the result. | June 8, 1990 |
9a40aeb6-bea4-48d0-a5cc-76825ac3cb37 | Dalton v. State | 575 So. 2d 603 | N/A | Alabama | Alabama Supreme Court | 575 So. 2d 603 (1990)
Ex parte State of Alabama.
(Re Linda S. DALTON
v.
STATE).
89-312.
Supreme Court of Alabama.
June 22, 1990.
Don Siegelman, Atty. Gen., and Joseph G.L. Marston, Asst. Atty. Gen., for petitioner.
Stuart R. Mishkin, Miami, Fla., and Randall O. Gladden, Huntsville, for respondent.
MADDOX, Justice.
This case presents a familiar question, the legality of a police investigatory stop and the subsequent seizure of illegal drugs, and it requires us to review once again the right of police to detain persons who allegedly match a "drug courier profile."
Linda S. Dalton was convicted of trafficking in cocaine and was sentenced to 15 years' imprisonment and was fined $250,000. In a separate trial, Timothy Orlando Rainey was also convicted of trafficking in cocaine and received the same sentence.
The Court of Criminal Appeals reversed each conviction on the ground that the arresting officers had exceeded the permissible limits of an investigatory stop permitted under Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See Dalton v. State, 575 So. 2d 599 (Ala.Cr.App. 1989), and Rainey v. State, 575 So. 2d 606 (Ala.Cr.App.1989). The State petitioned for certiorari review in both cases, arguing that the decisions of the Court of Criminal Appeals conflicted with United States v. *604 Sokolow, 490 U.S. 1, 109 S. Ct. 1581, 104 L. Ed. 2d 1 (1989). We granted review in both cases and consolidated the two cases for the purpose of oral argument. The issue argued before this Court was whether the duration and scope of the investigatory stop of Dalton and Rainey by the police were proper under Terry v. Ohio and United States v. Sokolow.
The facts are adequately set out in the opinion of the Court of Criminal Appeals and will not be restated here. The basic facts are that Dalton and Rainey were detained at the Huntsville airport because they fit a "drug courier profile." Huntsville police had received a telephone call from the Memphis International Airport Drug Task Force and had been told that Dalton and Rainey were flying to Huntsville and that their actions fit a "drug courier profile." The police went to the airport and arrived approximately 10 minutes before the arrival of Dalton and Rainey's flight. After Dalton and Rainey picked up their baggage, the police separated and detained Dalton and Rainey for approximately 40 minutes to an hour, when a narcotics-detecting dog arrived. That dog "alerted" on a suitcase that had been carried by Dalton. Upon opening the suitcase, the officers found 3.1 pounds of cocaine. Dalton was tried separately; after she was convicted, the Court of Criminal Appeals reversed her conviction, holding that the stop was impermissible. Based upon its holding in Dalton, that court reversed Rainey's conviction also.
Many of the basic facts of this case are similar to the facts in Sokolow: e.g., the investigatory stop was of an airline passenger, based upon facts that law enforcement officers said matched a "drug courier profile." Because the facts of this case are somewhat similar in some respects to those in Sokolow, we believe that a discussion of that case is appropriate, especially as the facts of that case relate to the length of detention.
In Sokolow, the defendant was detained at an airport in Hawaii because he fit a "drug courier profile." He was held from 6:30 p.m. until 9:30 p.m. before a narcoticsdetecting dog arrived. Because the Drug Enforcement Agency agents there could not get a search warrant until the next morning, they let Sokolow go after detaining him for those three hours. The question in Sokolow was whether the initial stop was proper, and the Court, in upholding the investigatory stop and detention, wrote the following:
In Sokolow, the Court discussed the right of police officers to detain an individual when there is reasonable suspicion that that person is engaged in wrongdoing:
490 U.S. at 10-11, 109 S. Ct. at 1587.
The Court of Criminal Appeals based its decision in these cases not on any invalidity of the initial stop, but upon the extensiveness of the detention. It held that "the police officers' conduct exceeded the permissible limits of a Terry -type investigatory stop," because "[t]heir conduct was clearly more intrusive, in duration and scope, than was necessary to effectuate an investigatory detention envisioned by Terry." We disagree.
Applying the principles of Sokolow, we hold that the Court of Criminal Appeals erred in determining that the detention in this case violated the defendant's constitutional rights. The intrusion here was not as extensive as that in Sokolow, and because the Huntsville police had such short notice (Dalton and Rainey were en route and would soon arrive), it was not unreasonable for the police to detain them 40 minutes to an hour for the narcotics-detecting dog to arrive. The rule is stated in Sokolow:
Under a different factual setting, of course, we might reach a different result. For instance, if the police had had a warning of several hours or days that suspected drug couriers were to arrive at the airport and narcotics-detecting dogs were readily available, then the least intrusive means might have been to have the dog already there, so that the amount of time between the stop and the dog's sniffing of the luggage would be minimal. Terry requires that the investigative methods employed be the least intrusive means reasonably available. See Florida v. Royer, supra. Of course, our holding in the present case is based in large part on the fact that the police did not have an opportunity to have *606 the dog immediately available at the airport when they stopped Dalton and Rainey.
For the above-stated reasons, the holding of the Court of Criminal Appealsthat the length of Dalton's detention was improperwas incorrect. The judgment, therefore, is reversed and this cause is remanded to that court for further proceedings consistent with this opinion.[1]
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
JONES, J., dissents.
[1] The detention issue was the only one addressed by the Court of Criminal Appeals, but the State spends much time, both in its brief in this case and in its brief in Rainey's case (Rainey v. State, 575 So. 2d 606 (Ala. 1990)), arguing that Dalton and Rainey did not have standing to challenge the seizure of the cocaine because it was in Dalton's suitcase and Rainey had the claim ticket and the key. In Dalton's case, the State argues that she did not have standing to challenge the seizure because it was Rainey's suitcase. In Rainey's case, the State argues that he did not have standing to challenge the seizure because it was Dalton's suitcase. The Court of Criminal Appeals did not reach this issue, and did not reach several other issues, because its treatment of the detention issue resolved the entire case. On remand, the Court of Criminal Appeals will need to address these other issues. Of course, as to the standing issue, the State cannot have it both ways. | June 22, 1990 |
03ac99b7-09e6-4bdd-8bca-764b65430a3e | Cuevas v. WE Walker, Inc. | 565 So. 2d 176 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 176 (1990)
Alice G. CUEVAS
v.
W.E. WALKER, INC., d/b/a Bill's Dollar Store.
89-278.
Supreme Court of Alabama.
June 8, 1990.
Edward P. Turner, Jr. and E. Tatum Turner of Turner, Onderdonk & Kimbrough, Chatom, for appellant.
Robert J. Mullican and Richard W. Franklin of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
SHORES, Justice.
This is an appeal from a summary judgment entered in favor of the defendant, W.E. Walker, Inc., doing business as Bill's Dollar Store. The plaintiff, Alice G. Cuevas, claims to have been injured in a slip and fall accident upon the defendant's premises as a result of defendant's negligence.
In the late afternoon of October 3, 1987, Mrs. Cuevas went shopping at the Bill's Dollar Store in Jackson, Alabama. She was accompanied by her adult ward, two minor children, Sandra Turner, and Turner's minor daughter. Plaintiff testified by deposition that she went to the store to look at shoes and to purchase a "jam box" (a radio-tape cassette player). She stated that she spent approximately 10 minutes making her selection. After selecting the jam box that she planned to purchase, she *177 walked toward the cashier. Her complaint alleges that she tripped over an electrical extension cord stretched across the aisle and fell, injuring herself as a result.
Mrs. Cuevas testified that her fall rendered her unconscious temporarily, and that she was taken to a hospital and was released later that evening. She filed suit against the defendant, alleging that it had negligently and/or wantonly caused or allowed a dangerous condition to exist on the premises of the Bill's Dollar Store without a warning that the dangerous condition existed. The defendant answered, denying her allegations and asserting the affirmative defense of contributory negligence and payment of medical expenses. The defendant later moved for summary judgment based on the pleadings; the depositions of the plaintiff and Sandra Turner; the affidavit of Margaret Patrick, the defendant's store manager; and a supporting brief. In opposition to the defendant's motion for summary judgment, the plaintiff relied on her own deposition, the deposition of Sandra Turner, and the affidavit of William Joseph Cuevas, as well as a supporting brief.
The trial court entered a summary judgment for the defendant, W.E. Walker, Inc., and made it final under Rule 54(b), A.R. Civ.P. Mrs. Cuevas appeals. We reverse.
On appeal from a summary judgment, we must evaluate the evidence presented to the trial court and ascertain, in light of the "substantial evidence rule," whether there were any genuine issues of material fact due to be decided by a jury.[1] See Bogue v. R. & M. Grocery, 553 So. 2d 545 (Ala.1989). Rule 56, A.R.Civ.P., sets forth a two-tiered standard for summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. 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, 832 (Ala. 1989). Rule 56 was read in conjunction with the "scintilla rule of evidence" in actions commenced on or before June 11, 1987; it is read in conjunction with the "substantial evidence rule" for actions filed after that date. See § 12-21-12, Ala.Code 1975; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989).
The evidence presented by Mrs. Cuevas shows her to have been a business invitee upon the Bill's Dollar Store premises at the time of her accident, and as such, she was owed a duty by the store owner to exercise reasonable care in maintaining the premises in a reasonably safe condition. "It is well settled that a storekeeper is under a duty to exercise reasonable care in providing and maintaining reasonably safe premises for the use of his customers." Cox v. Western Supermarkets, Inc., supra, at 831, quoting Clayton v. Kroger Co., 455 So. 2d 844 (Ala.1984). As a general rule, an invitor will not be liable for injuries to an invitee resulting from a danger that was known to the invitee or should have been observed by the invitee in the exercise of reasonable care. Bogue v. R. & M. Grocery, supra, at 547, quoting Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388 (1937). Lamson & Sessions discusses at length the duty owed by a landowner to an invitee. This Court furthered discussed this duty in Terry v. Life Ins. Co. of Georgia, 551 So. 2d 385 (Ala. 1989), wherein we stated as follows:
Id. at 386-387. (Emphasis in original.)
Although there is conflict in the testimony, Mrs. Cuevas has presented substantial evidence from which a jury could conclude that the defendant breached a duty to warn her of a dangerous condition caused by the presence of an electrical cord in the aisle of the store and that she was injured as a result of the defendant's negligence. Mrs. Cuevas testified in her deposition that the cord that she alleges tripped her was tightly stretched across the aisle, that it bruised her foot, that there were no signs warning her that a cord was across the aisle, and that after she was injured the manager of the store apologized to her for having the cord stretched across the floor. She further testified as to injuries she says she sustained in this accident and as to the medical treatment she says was necessitated as a result. The store manager, Margaret Patrick, testified by affidavit that five minutes before the fall she had swept the area where Mrs. Cuevas fell, and that she did not see a cord across the aisle. Mrs. Patrick's affidavit conflicts with the testimony of Mrs. Turner, who was behind Mrs. Cuevas when she fell, and who testified by deposition that she witnessed the accident and accompanied Mrs. Cuevas to the hospital:
C.R. 415-17.
In Bogue we noted that there are any number of factual issues for a jury in slip and fall negligence cases. We quoted Foodtown Stores, Inc. v. Patterson, 282 Ala. 477, at 482, 213 So. 2d 211, at 215-16 (1968), in which we said:
This is equally true in this case. The resolution of this matter is for the trier of fact. Accordingly, we reverse the judgment of the trial court and remand the cause for trial.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur.
[1] J.A. Hoffman, "Alabama's Scintilla Rule," 28 Ala.L.Rev. 592, 607-31 (1977). | June 8, 1990 |
1d5ea2b6-79c6-489f-a091-b1e34cf4da4d | Lewis v. Lennox | 567 So. 2d 264 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 264 (1990)
Joseph Brady LEWIS
v.
Connie R. LENNOX.
88-1480.
Supreme Court of Alabama.
June 15, 1990.
Rehearing Denied August 31, 1990.
Joseph Brady Lewis, pro se.
Steven F. Schmitt, Tallassee, for appellee.
HOUSTON, Justice.
Connie R. Lennox sued her ex-husband, Joseph Brady Lewis, seeking damages for assault and battery and intentional infliction of emotional distress. Lewis counterclaimed, seeking damages for assault and *265 battery, defamation, and intentional infliction of emotional distress. The trial court directed a verdict for Lennox on Lewis's claims of defamation and intentional infliction of emotional distress. The remaining claims of the parties were submitted to a jury, which found for Lennox and awarded her compensatory and punitive damages. The trial court entered a judgment on that verdict and denied Lewis's motion for a judgment notwithstanding the verdict, or, in the alternative, a new trial. Lewis appealed.
After carefully reviewing the record and the briefs of the parties, we conclude that the issues raised by Lewis are either without merit or were not preserved for appellate review. Accordingly, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
MADDOX, JONES, ALMON and SHORES, JJ., concur. | June 15, 1990 |
03768d57-41a1-4052-8705-593713a915c2 | Docena Fire Dist. v. Rucker | 564 So. 2d 422 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 422 (1990)
DOCENA FIRE DISTRICT
v.
Willie RUCKER, et al.
89-143.
Supreme Court of Alabama.
May 4, 1990.
*423 Henry L. Penick, Birmingham, for appellant.
Horace V. O'Neal, Jr. of Newman, Miller, Leo & O'Neal, Birmingham, for appellees.
HOUSTON, Justice.
The Docena Fire District, which had been established in 1974 pursuant to Act 79, Ala.Acts 1966, Special Session, as amended ("Act 79"), was later abolished pursuant to Act 79 by the Judge of Probate of Jefferson County, Alabama, on December 2, 1988. Thereafter, the Board of Trustees of Docena Fire District moved to intervene in the action that had been brought to abolish the fire district, alleging several procedural and constitutional grounds. The judge of probate granted the motion to intervene, heard the intervenors' motion to reconsider his order abolishing the Docena Fire District, and denied the motion to reconsider. The Docena Fire District appealed to the circuit court. Willie Rucker, for himself and members of a class made up of residents within the jurisdictional boundaries of what had formerly been the Docena Fire District (hereinafter referred to simply as "Rucker"), moved to dismiss the appeal and filed an answer and a counterclaim for injunctive relief and monetary damages. The trial court noted in its order that the petition to abolish the fire district stated that the Docena Fire District was created in 1974 pursuant to Act 79, that there had been no election to abolish the fire district within a two-year period, and that Docena Fire District had no indebtedness. The trial court also noted that the chairperson of the Jefferson County Board of Registrars had certified that 129 registered voters signed a petition to call an election to determine whether to abolish the district, and *424 that the judge of probate had found that there were 127 votes cast for, and five votes against, abolishing the Docena Fire District.[1] The trial court found that there was no right to contest an election held under Act 79 (Parker v. Mt. Olive Fire & Rescue District, 420 So. 2d 31 (Ala.1982)). The trial court dismissed Docena Fire District's appeal on the basis of Parker v. Mt. Olive Fire & Rescue District, concluding that the appeal was an attempt to contest the election to abolish the Docena Fire District; and the trial court held that it had no jurisdiction with respect to the matters asserted in Rucker's counterclaim. Docena Fire District appeals and presents these issues for review:
Initially, we must determine whether the issues raised on appeal are properly before this Court. All of the issues raised concern the validity of Act 79 in light of certain provisions of the Alabama Constitution and the United States Constitution. In order for this Court to review the constitutionality of a legislative act, the appellant must have raised that issue in a court below that had jurisdiction to adjudicate the issue. Wallace v. State, 507 So. 2d 466 (Ala.1987). Docena Fire District raised Issue III in the probate court. Did the probate court have jurisdiction to adjudicate this constitutional issue? In Wallace v. State, supra, Justice Beatty wrote:
"This Court addressed this problem of jurisdiction in City of Homewood v. Caffee, 400 So. 2d 375 (Ala.1981), and, most recently, in Ex parte Averyt, 487 So. 2d 912 (Ala.1986), except that, in those cases, the question concerned the jurisdiction of a zoning board (Caffee) and a personnel board (Averyt) to entertain constitutional issues. We reiterate the rule applied in both of those cases:
507 So. 2d at 468. The probate court did not have jurisdiction to adjudicate Issue III; therefore, that issue is not properly before this Court.
Docena Fire District did not raise Issues I and II in the probate court, which was the trial court, but only in the circuit court, after appeal from the probate court to the circuit court. There is nothing in Act 79 pertaining to an appeal from the order of the probate court issued pursuant to Act 79. Therefore, the general statute pertaining to appeals from the probate court is applicable. Alabama Code 1975, § 12-22-20, provides, in pertinent part:
This section does not allow a trial de novo in the circuit court. Prestwood v. Prestwood, 395 So. 2d 8, 13 (Ala.1981). Therefore, the circuit court acts in its capacity as an appellate court when an appeal is taken from the probate court to the circuit court under § 12-22-20. Issues not raised before the trial court may not be raised for the first time on appeal. Green v. Taylor, 437 So. 2d 1259 (Ala.1983).
For the foregoing reasons, the appellants' constitutional issues are not properly before this Court.
Docena Fire District could have invoked the general jurisdiction of the circuit court by way of a collateral suit to properly raise its constitutional challenges. Wallace v. State, supra; and Ex parte Averyt, supra.
Therefore, this appeal is due to be dismissed.
APPEAL DISMISSED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] Act 79 provides, in pertinent part, as follows:
"Section 15. Any district created hereunder may be abolished in the manner provided for in this Section 15; provided, however, that no district shall be abolished when it has any indebtedness.
"Upon the petition for abolition of a district, conforming to the requirements set forth below, being filed with the Probate Judge, he shall order an election on abolition of the district to be held in the district within the time provided for by Section 4, at which qualified electors residing within the district shall be entitled to vote. The number of qualified electors residing in the district signing the said petition shall not be less than the smaller of these two numbers: one hundred (100), or a number equal to ten percent (10%) of the qualified electors residing within the district. It shall contain a recital that the district is not indebted; and it shall request the Probate Judge to order an election on whether the district shall be abolished. Upon the officers canvassing the returns of the election certifying that abolition of the district was approved by a majority of the votes cast at the election, the district shall be abolished.
"No election to abolish a district shall be held at any time within two years following the date of the election creating the district; and not more than one election on the abolition of a district shall be held within a period of two years."
[2] "[A]ll such [election] laws shall be uniform throughout the State." | May 4, 1990 |
17825d4a-4913-4319-97de-54ff6047ef41 | A & M GROCERY, INC. v. Lopez | 567 So. 2d 261 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 261 (1990)
A & M GROCERY, INC., et al.
v.
Frank W. LOPEZ and Robert A. Jones, Jr.
A & M GROCERY, INC.
v.
CITY OF BIRMINGHAM.
89-394, 89-395.
Supreme Court of Alabama.
June 8, 1990.
Rehearing Denied August 31, 1990.
Herbert W. Stone, Homewood, for appellants.
Thomas E. Baddley, Jr., Birmingham, for appellees.
SHORES, Justice.
Two cases were consolidated. The first case (hereinafter referred to as the tax case) arose from a complaint filed by the City of Birmingham, Alabama, on June 24, 1987, seeking delinquent license, sales, and occupational taxes and penalties from A & M Grocery, Inc., which is owned by David M. Shabani and Michael M. Shabani. The second case was filed by A & M Grocery and the Shabani brothers against Frank W. Lopez, the license and tax administrator of the City of Birmingham, and Robert A. Jones, Jr., the attorney representing the City. In the second case, A & M Grocery and the Shabani brothers alleged that Mr. Lopez and Mr. Jones had knowingly filed false affidavits in the first case. Claims were made against Mr. Lopez and Mr. Jones, as individuals, alleging misrepresentation, fraud, extortion, and abuse of process. Ultimately, the trial judge entered a summary judgment in favor of the City of Birmingham and against A & M Grocery and both Shabani brothers in the amount of $69,368.99 in the tax case. He entered a summary judgment in favor of Frank W. Lopez and Robert A. Jones, Jr., in the case against them, and awarded attorney fees in the amount of $2,450 pursuant to the Alabama Litigation Accountability Act, §§ 12-19-270 through -276, Code 1975 (Cum. Supp.). A & M Grocery and the Shabani brothers appeal from the summary judgments and the award of attorney fees.
A & M Grocery was originally represented in the tax case by Attorney Robert C. Snead, Jr., who negotiated an agreement with the City by which his client was to pay $15,000 to the City, to be applied to tax liabilities; and, additionally, his client was *262 to post a bond in order to be allowed to stay in business. The trial court ordered A & M Grocery to produce documents, answer interrogatories, and allow an audit of its books and records, the audit to begin within 20 days of the date of the order. The trial court's amended order, dated August 12, 1987, reflected the new agreement by the parties as to the amount of the bond and set the jeopardy assessment in the amount of $31,551.18. A & M Grocery failed to cooperate in making its financial records available, despite numerous court orders and extensions of time. By this time, Attorney Herbert W. Stone had begun appearing on behalf of A & M Grocery. A series of motions and orders, including a motion for sanctions filed by the City, culminated in the issuing of what the trial judge termed "an extraordinary order," dated January 4, 1989, in which the court ordered A & M Grocery to produce in the jury room of the court at 9:00 a.m. the next day all of the materials previously requested for production. On January 11, 1989, the trial court issued an Order in which it required A & M Grocery to organize the records it had produced and granted the City's motion for sanctions and other relief by ordering A & M Grocery to pay to the City $2,000 in attorney fees.
The second case was filed on March 7, 1989. In this case, as noted above, A & M Grocery and the Shabanis sued Frank W. Lopez and Robert A. Jones, Jr. Mr. Jones withdrew as the attorney for the City in the tax case, and Thomas E. Baddley, Jr., represented Mr. Lopez and Mr. Jones in the second case. On April 5, 1989, the City filed an amended complaint in the tax case, adding Michael Shabani and David Shabani as individual defendants.
While both cases were pending, the City Council of the City of Birmingham held a hearing on the tax assessment owed by A & M and the Shabanis. With all parties attending the meeting with the City Council, the Council passed Resolution No. 584-89, which read as follows:
Although the record here does not clearly so indicate, A & M apparently filed a notice of appeal of the City Council's assessment, because on April 28, 1989, it filed a notice of intention not to appeal, which purported to withdraw a prior notice of appeal.
The City then sought a summary judgment in the tax case against A & M, David Shabani, and Michael Shabani in the amount of $69,368.99. A & M and the Shabani brothers in turn sought a summary judgment against the City. Various affidavits and other pleadings were filed in the tax case, and the trial court finally heard arguments on the motions for summary judgment. The second case had been filed as a separate action. However, the presiding judge of the 10th Judicial Circuit, Judge John Bryan, ordered the second case assigned to the same trial judge for hearing with the tax case. Various affidavits and pleadings were filed in the second case and the trial court heard arguments on the motions for summary judgment.
Having heard the arguments in both cases, the trial judge issued the following order on November 7, 1989:
We must determine whether the trial court erred in entering summary judgment in the two cases and whether the trial court erred in awarding attorney fees in the second case.
Rule 56, A.R.Civ.P., sets forth a two-tiered standard for summary judgment. In order to enter a summary judgment, the trial court must determine: 1) that there is no genuine issue of material fact, and 2) that the moving party is entitled to a judgment as a matter of law. "In determining whether summary judgment was properly granted, the trial court must view the motion in a light most favorable to the non-movant. Ryan v. Charles Townsend Ford, Inc., 409 So. 2d 784 (Ala.1981)." Turner v. Systems Fuel, Inc., 475 So. 2d 539, 541 (Ala.1985). Rule 56 is read in conjunction with the "scintilla rule of evidence" in actions commenced on or before June 11, 1987; it is read in conjunction with the "substantial evidence rule" for actions filed after that date. See § 12-21-12, Code 1975; Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794, 797-98 (Ala. 1989).
In the tax case the evidence is undisputed that the amount owed to the City of Birmingham in unpaid taxes was settled by resolution of the City Council at a meeting on April 11, 1989, at which all parties were in attendance. It is also undisputed that on April 28, 1989, A & M filed a notice of intent not to appeal the City Council's action setting the amount of the assessment; thus, the assessment became due and owing. Therefore, there is no genuine issue of material fact, and the City is entitled to a judgment as a matter of law. We find no error on the part of the trial court.
As to the second case, the trial judge, in making his determination that no genuine issue of material fact existed, had before him the pleadings, prior orders, and rulings of the court, the materials submitted to the trial court at prior hearings, affidavits, deposition testimony, and argument by both sides. The trial judge stated in his order that he did not consider the statements in those affidavits that were based upon the affiant's information and belief, because affidavits supporting or opposing a motion for summary judgment must be made on personal knowledge and must set forth facts to show the admissibility of the evidence contained in the affidavit. See Rule 56(c); Turner v. Systems Fuel, Inc., supra, at 541. We have carefully reviewed the record, and we affirm the judgment of the trial court.
Finally, we must consider the Alabama Litigation Accountability Act, §§ 12-19-270 through -276, Code 1975 (1987 Cum.Supp.), to determine whether the trial court erred in awarding attorney fees to counsel for the defendants in the second case. This Act applies to any suit or claim or defense or appeal filed after June 11, *264 1987. § 12-19-275. Section 12-19-272(a) provides as follows:
The phrase "without substantial justification" is defined in § 12-19-271(1):
Section 12-19-273 permits the trial court to exercise its discretion in the awarding of attorney fees authorized by the statute, but requires that it set forth the reasons for the award. Tidwell v. Waldrop, 554 So. 2d 1009, 1010 (Ala.1989). The trial judge complied with the mandates of § 12-19-273 by setting forth his reasons. We have carefully reviewed the record, and we find that the trial judge had before him ample evidence from which he could conclude that the second case was filed without substantial justification. Throughout the history of the tax case, A & M Grocery and the Shabani brothers refused to cooperate with the court. It was necessary to file motion after motion in order to force discovery from A & M and the Shabani brothers. The motion for sanctions filed by the City details the various encounters between the attorneys. Finally, on January 4, 1989, the trial judge issued an order he termed "an extraordinary order" requiring production of documents at 9:00 a.m. the next day in the jury room of his court. When the documents were produced, they were in such disarray that the trial judge ordered that they be placed "in some recognizable form." After this order, A & M and the Shabani brothers filed the second case. There is no evidence in the record to support the claims made by the pleadings in that case. The trial court did not err in holding that that case was filed without substantial justification.
The motion to dismiss filed in case 89-395 is denied, and the judgment of the trial court in each case is due to be affirmed.
89-394 AFFIRMED.
89-395 MOTION TO DISMISS DENIED; AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | June 8, 1990 |
c1d40657-74f5-4000-bb06-6e3937ebb792 | Ex Parte Jackson | 564 So. 2d 891 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 891 (1990)
Ex parte Tedo Meyon JACKSON.
Re Tedo Meyon Jackson
v.
State.
88-1129.
Supreme Court of Alabama.
May 18, 1990.
Karen S. Bullock, Birmingham, for petitioner.
Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
Tedo Meyon Jackson was convicted of first-degree theft and third-degree burglary in connection with the theft of an automobile. The Court of Criminal Appeals affirmed the conviction. 550 So. 2d 1090. We issued a writ of certiorari to address one issue:
At night, on March 21, 1988, Jackson allegedly broke out a window at Chuck Hutton Chevrolet, stole the keys to a 1985 Chevrolet S-10 Blazer vehicle, and then took the Blazer. The next morning he was taken into custody by the Birmingham police, who interrogated him. Officer Larry Fowler testified that he read to Jackson the following statement regarding his constitutional rights:
After Fowler read Jackson that statement of his rights, Jackson wrote the following on a form for waiver of those rights:
Jackson signed that statement. He also signed a document prepared by Fowler entitled "Statement of Tedo Jackson," which provided a somewhat more complete narrative.
Before the trial of the cases, Jackson moved to suppress both statements. At the hearing on that motion, Fowler testified that when he interrogated Jackson, he thought Jackson was 18 or 19 and that he did not offer to call Jackson's parents or grandparents. He also stated that he read to Jackson the statement of rights given earlier. The trial court denied Jackson's motion to suppress, denied his motion for youthful offender status, and determined that Jackson was to be tried as an adult.
Rule 11, Alabama Rules of Juvenile Procedure, states, in pertinent part:
The record and Officer Fowler's testimony indicates that Jackson was not informed that he had the right to communicate with his parent or guardian and that reasonable means would be provided for him to do so, as Rule 11(A)(4) requires.
In Ex parte Whisenant, 466 So. 2d 1006 (Ala.1985), the Court addressed the admissibility of a confession given when the defendant, a juvenile, had not been informed of his rights pursuant to Rule 11(A)(4). Darrell Whisenant, a juvenile, was taken into custody in connection with a murder investigation. Whisenant made oral and written statements implicating himself in the crimes, but he was not informed of his rights pursuant to Rule 11(A)(4). The Court first noted that Rule 11(A)(1), (2), and (3), taken together, are substantially the same as the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that by virtue of its adoption of Rule 11(A)(4), this Court had provided an additional warning for the protection of juveniles. 466 So. 2d at 1007. The Court noted that both the Fifth Amendment to the United States Constitution and Art. 1, § 6, Ala. Const. 1901, grant the right not to be compelled *893 to give evidence against oneself. Id. These protections against self-incrimination carry with them the traditional exclusionary rule, and that exclusionary rule is applicable to all the provisions of Rule 11(A). Id. The Court stated:
The Court held: "If any one or more [of the Rule 11(A) ] warnings are omitted, the use in evidence of any statement given by the child is constitutionally proscribed." 466 So. 2d at 1007.
Jackson argues that under Whisenant his motion to suppress is due to be granted, because Fowler did not inform him of his rights pursuant to Rule 11(A)(4), as Whisenant requires. Jackson argues that he should have been informed of his right to consult with his parents even though he might later be tried as an adult, and that his confession should have been suppressed. The State argues that the trial court's determination that Jackson was to be tried as an adult cures the error committed by Fowler in failing to inform Jackson of his constitutional rights as a juvenile.
We agree with Jackson that the alleged confessions are due to be suppressed. As in Whisenant, the evidence in this case is an inculpatory statement of the accused, the admission of which is violative of his constitutional right to remain silent, unless he had first been advised of that right. 466 So. 2d at 1007. An individual with the right to remain silent has the right to remain silent without regard to whether an officer has told him of that right. Ex parte Marek, 556 So. 2d 375, 382 (Ala.1989). Accordingly, the trial court's determination that Jackson was to be tried as an adult did not cure the error made by Fowler in failing to advise Jackson of his constitutional rights as a juvenile. Public policy, in addition to the constitutional requirements, supports this holding.
The judgment of the Court of Criminal Appeals is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | May 18, 1990 |
5e10458c-5f39-4adc-bdd5-17d5df784126 | Maddox by and Through Maddox v. K-Mart Corp. | 565 So. 2d 14 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 14 (1990)
James Michael MADDOX, a minor, by and through his father and next friend, M.C. MADDOX; and M.C. Maddox
v.
K-MART CORPORATION[1]
88-1649.
Supreme Court of Alabama.
May 18, 1990.
*15 Robert F. Lewis and Marylee Abele, Birmingham, for appellants.
John S. Civils, Jr. and Jack M. Beard, Jr. of Huie, Fernambucq & Stewart, Birmingham, for appellee.
KENNEDY, Justice.
The plaintiffsJames Michael Maddox, a minor, suing by and through his father and next friend, M.C. Maddox; and M.C. Maddox individuallyappeal from the summary judgment entered in favor of the defendant, K-Mart Corporation. We reverse and remand.
On November 29, 1985, James Michael Maddox went shopping at a K-Mart store in Cullman, Alabama, with his sister, *16 Teresa Maddox Brown, and with two other acquaintances. Upon entering the store, he slipped and fell near the front customer service desk and, as a result, suffered injuries to his head, neck, and back. As a result, this tort action was filed on June 3, 1987. James Michael and his sister testified that after his fall they observed a substance on the floor near the customer service desk where he had fallen. They did not see the substance on the floor before his fall. His sister stated in her deposition that she thought that the substance was wet, slippery, and "sticky," and that it appeared to her to be a puddle of "Coke." She also stated that the substance "looked like it was trying to dry" and that the puddle was about two feet wide. He, his mother, and his sister also testified that there was a sticky substance found on his clothes and on his hand after the fall. His mother said the substance on his clothes dried "stiff." Neither he nor his mother or sister knew how long the substance had been on the floor.
James Michael's sister reported his fall to someone at the customer service desk, and, thereafter, his mother drove him to a hospital.
In answers to interrogatories, K-Mart stated that it did not have knowledge of any substance on the floor in the area where James Michael claims to have fallen. K-Mart further stated that the floors are swept during the day and cleaned as needed; that no substance was cleaned from the floor where James Michael allegedly fell; that supervisory personnel were in the area on the day of the accident, and employees were working at the customer service desk; and that all K-Mart employees are trained to be on the look-out for any unsafe condition and to correct it if one is observed.
On appeal, the plaintiffs argue that this case is controlled by Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989). K-Mart, however, argues that Vargo v. Warehouse Groceries Management, Inc., 529 So. 2d 986 (Ala.1988), is dispositive. After a review of the evidence, we conclude that Cox, supra, applies to the facts of this case.
At the outset, we note that a storekeeper is under a duty to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers. However, the storekeeper is not an "insurer of the customer's safety," and is liable for injury only if he "negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition." The plaintiffs must prove that the injury was proximately caused by the negligence of K-Mart or one of its servants or employees. Actual or constructive notice of the presence of the substance must be proven before K-Mart can be held responsible for the injury. Furthermore, the plaintiffs must prove (1) that the substance slipped upon had been on the floor a sufficient length of time to impute constructive notice to K-Mart; or (2) that K-Mart had actual notice that the substance was on the floor; or (3) that K-Mart was delinquent in not discovering and removing the substance. See Cox, supra, and Richardson v. Kroger Co., 521 So. 2d 934, 935-36 (Ala. 1988); Cash v. Winn-Dixie Montgomery Inc., 418 So. 2d 874 (Ala.1982).
We find Vargo, supra, distinguishable from the present case. In Vargo, the plaintiff slipped and fell after removing a bag of ice from an ice machine. The plaintiff and her witness testified that there were several puddles of water in front of the ice machine and that the water "looked like it had been there for a while." An employee for Warehouse Groceries Management testified that after the accident he did not observe any water or any evidence of a fall. This Court held:
529 So. 2d at 987.
In this case, however, we find that there was at least a scintilla of evidence that the substance had been on the floor for such a *17 length of time that constructive notice was imputed to K-Mart and that K-Mart was delinquent in not discovering and removing the substance. The testimony that the substance looked like a puddle of "Coke" and was "sticky" and "looked like it was trying to dry" provided evidence from which the trier of fact could infer that the substance had been there long enough that the defendant's employees should have known it was there. In Vargo, there was no evidence about the nature of the substance from which the trier of fact could infer that the substance had been on the floor for such a length of time that constructive notice should be imputed to the defendant. Under Cash, supra, it is permissible to allow the trier of fact to infer the length of time that the substance had remained on the floor from evidence regarding the nature and condition of the substance. "Where the substance is dirty, crumpled, or mashed, or has some other characteristic [, e.g., is `sticky,'] that makes it reasonable to infer that it has been on the floor a long time, the defendant may be found to have a duty to discover and remove it." Vargo, supra, at 986, citing S.H. Kress & Co. v. Thompson, 267 Ala. 566, 103 So. 2d 171 (1957). Therefore, we conclude that the plaintiffs presented enough evidence that any inference that K-Mart was negligent would not be the result of mere speculation.
Accordingly, the summary judgment in favor of K-Mart is due to be, and it is hereby, reversed, and the cause is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and ADAMS, JJ., concur.
MADDOX, ALMON, HOUSTON and STEAGALL, JJ., dissent.
HOUSTON, Justice (dissenting).
Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989), did not redefine "scintilla" as "a small wet spot on the right seat of [the] pants." See, King v. Winn-Dixie of Montgomery, Inc., 565 So. 2d 12 (Ala. 1990) (Houston, J., concurring in part and concurring in the result in part). I join Justice STEAGALL's dissent.
STEAGALL, Justice (dissenting).
In my opinion, this case is decided by Vargo v. Warehouse Groceries Management, Inc., 529 So. 2d 986 (Ala.1988). There, the plaintiff slipped and fell after removing a bag of ice from an ice machine. The plaintiff and her witness testified that there were several puddles of water in front of the ice machine that "looked like it had been there for a while." An employee from Warehouse Groceries Management testified that after the accident he did not observe any water or any evidence of a fall. This Court held:
529 So. 2d at 987.
In this case, Maddox's sister testified that the substance "looked like it was trying to dry." There seems very little difference to me between "looked like it has been there for a while" and "looked like it was trying to dry."
The case of Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989), relied upon by the majority, can easily be distinguished. In Cox, the plaintiff slipped and fell while walking through the produce department. After her fall, she "felt a small wet spot on the right seat of her pants." The evidence established that ice was transported to the produce department, periodically, on the day of the plaintiff's fall. Furthermore, "special rubber mats were placed in the produce aisle to keep the area clean and dry." Also, store employees were specifically assigned to maintain and inspect the produce department to ensure that it was clean and dry.
There is no evidence in this record to indicate that K-Mart employees knew the substance was on the floor prior to Maddox's fall, or that the substance had been *18 on the floor for such a length of time as to impute constructive notice. See Cash v. Winn-Dixie Montgomery, Inc., 418 So. 2d 874 (Ala.1982).
The summary judgment for K-Mart should be affirmed.
I, therefore, respectfully dissent.
MADDOX, ALMON and HOUSTON, JJ., concur.
[1] The appellee's name was spelled this way in the notice of appeal and in the record. Consequently, we have used this spelling throughout the opinion. | May 18, 1990 |
f5f8ae3a-8a5b-47cf-a1ed-c8873aa798cf | Fahey v. CATV SUBSCRIBER SERVICES | 568 So. 2d 1219 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 1219 (1990)
Anne FAHEY and Charles F. Fahey
v.
C.A.T.V. SUBSCRIBER SERVICES, INC.
C.A.T.V. SUBSCRIBER SERVICES, INC.
v.
Anne FAHEY and Charles F. Fahey.
89-106, 89-159.
Supreme Court of Alabama.
June 22, 1990.
Rehearing Denied September 21, 1990.
*1220 Peter V. Sintz and Jacqueline M. McConaha of Sintz, Campbell, Duke, Taylor & Cunningham, Mobile, for appellants/cross-appellees.
Mary Beth Mantiply and Julia L. Christie, Mobile, for appellee/cross-appellant.
MADDOX, Justice.
This appeal and cross-appeal respectively present, on the one hand, a question of the propriety of the trial court's summary judgment in favor of a cable television company on the ground that the evidence showed, as a matter of law, that it was not the party whose activity in laying the cable allegedly caused the plaintiff's injury, and, on the other hand, a question of the propriety of the trial court's denial of a partial summary judgment in favor of the cable television company on the ground that the evidence showed, as a matter of law, that the plaintiff's alleged back injury was not proximately caused by any act or omission on the part of the party that laid the cable. For reasons we shall hereinafter state, we reverse the judgment entered from which the appeal was taken, and we dismiss the cross appeal.
Anne and Charles Fahey's sewer line backed up, causing sewage to flow into their house. After digging up a section of the pipe, they found that the pipe had been pierced and blocked by a cable television line under the street. The Faheys sued the owners of the cable line, and later added as defendants all the contractors and companies connected with the installation of that cable line. The appellee and cross-appellant, C.A.T.V. Subscriber Services, Inc., was added as one of those defendants. The Faheys sued for alleged damages to their home, driveway, plumbing, and furnishings and also included a claim for damages based on a back injury suffered by Anne while she was moving furniture during the flooding caused by the backed up sewer line. C.A.T.V. moved for a partial summary judgment on the issue of Anne's back injury; the trial court denied that motion. The denial of that motion is the subject of C.A.T.V.'s cross-appeal.
After the trial court denied C.A.T.V.'s motion for a partial summary judgment on the issue of the injury allegedly suffered by Anne, C.A.T.V. then moved for a full summary judgment, asserting that it had done none of the actual work connected with laying the cable that allegedly resulted in the sewer blockage and the subsequent sewage back-up problem. C.A.T.V. claimed that all the work had been done by independent contractors over which it exercised no control. The trial court granted that summary judgment motion and made the summary judgment final under Rule 54(b), A.R.Civ.P.
The Faheys appeal, and the only issue they raise is whether the summary judgment was proper. C.A.T.V. cross-appeals and argues that if this Court determines that the summary judgment was not proper, then C.A.T.V. should be entitled to a *1221 partial summary judgment on the claim based on Anne's back injury because, as a matter of law, there was no evidence that any act or omission on its part proximately caused the back injury that she allegedly sustained while moving furniture because of the flooding. C.A.T.V. also argues that "[a]ssuming arguendo that this Court agrees that proximate causation has been sufficiently established by the plaintiffs, then as a matter of law, plaintiff was contributorily negligent and assumed the risk of her own injuries." For reasons we shall state in a separate portion of this opinion, the cross appeal is due to be dismissed.
Because this suit was filed before June 11, 1987, the "scintilla rule" is the applicable standard for testing the correctness of the trial court's granting of the summary judgment motion. See Ala.Code 1975, § 12-21-12. In testing the correctness of the trial court's action, this Court applies the rule that 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. Rule 56(c); Pittman v. Gattis, 534 So. 2d 293 (Ala. 1988). The question in the Faheys' appeal is whether there was a scintilla of evidence that C.A.T.V. maintained any right of control over the laying of the cable, and the question on the cross-appeal is whether there was a scintilla of evidence that any act or omission of C.A.T.V. proximately caused the back injury allegedly suffered by Anne, and if so, whether the evidence presented shows, as a matter of law, that Anne was contributorily negligent.
As this Court stated in Pugh v. Butler Telephone Co., 512 So. 2d 1317, 1318 (Ala. 1987):
C.A.T.V. contends that it was merely a prime contractor and that it did not retain any right of control over the subcontractors that laid the cable involved. However, we need not reach the issue of whether there was evidence that C.A.T.V. retained sufficient control over the subcontractors to make it liable for their negligence, because the Faheys presented evidence that C.A.T.V. itself laid the cable that blocked their sewer line. In opposition to C.A.T. V.'s motion for summary judgment, the Faheys offered the deposition of Bayne Nezat, one of the subcontractors, wherein he stated that he saw a C.A.T.V. crew laying cable on the Faheys' street. C.A. T.V. contends that it never did any of the actual laying of the cable; however, the deposition testimony of the subcontractor does present a scintilla of evidence that C.A.T.V. was directly involved in the laying of the cable that blocked the Faheys' sewer line. Thus, a genuine issue of material fact was presented, and C.A.T.V. was not entitled to a judgment as a matter of law; therefore, the summary judgment for C.A. T.V. is reversed, and the cause is remanded for further proceedings.
On cross appeal, C.A.T.V. contends that the trial judge erred in denying its motion for partial summary judgment on the issue of liability for Anne's back injury.
This cross appeal is due to be dismissed. In Parsons Steel, Inc. v. Beasley, 522 So. 2d 253 (Ala.1988), this Court had before it a situation identical to the one presented here. There was an appeal from a summary judgment that the trial court had made final pursuant to the provisions of Rule 54(b), A.R.Civ.P. The appellee in *1222 that case sought to cross appeal from the trial court's orders denying its motion for a summary judgment on other claims in the complaint. This Court held:
The holding in Parsons, therefore, requires us to dismiss the cross appeal.
89-106 REVERSED AND REMANDED.
89-159 APPEAL DISMISSED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
MADDOX, Justice.
C.A.T.V. has applied for rehearing, arguing that this Court erred in applying the "scintilla rule" as the standard for testing the correctness of the trial court's granting of C.A.T.V.'s summary judgment motion. C.A.T.V. points out that although the Faheys' lawsuit was filed before June 11, 1987, their amended complaint adding the claim against C.A.T.V. was not filed until April 22, 1988. Therefore, C.A.T.V. argues that the "substantial evidence rule" of Ala. Code 1975, § 12-21-12, should apply to the claim added by the amended complaint and that while the record may show a scintilla of evidence supporting the Faheys' claim, it does not show substantial evidence supporting that claim.
Thus, a question of first impression is presented: if a plaintiff's original complaint is pending on June 11, 1987, but an amended complaint is filed after that date, which rule applies to a summary judgment motion addressing a claim contained only in the amended complaint? We hold that the "scintilla rule" applies. Section 12-21-12 is clear in its language, "This section shall not apply to any civil action pending in the courts of this state on June 11, 1987." (Emphasis added.) The Faheys' action was pending on June 11, 1987, and any amendment asserting a claim that arose out of the occurrence set forth in the original complaint relates back to the date of the filing of the original complaint. See Rule 15(c), Ala.R.Civ.P.
Further, other problems could arise from applying the two different rules in the same case. For example, to hold that in a single lawsuit the "substantial evidence rule" applies to one party's summary judgment motion while the "scintilla rule" applies to another party's summary judgment motion would not be "just." Ala.R. Civ.P., Rule 1.
Therefore, C.A.T.V.'s application for rehearing is overruled.
OPINION EXTENDED; APPLICATION OVERRULED.
HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur. | June 22, 1990 |
71ee74ac-f29b-4ab8-922f-cf17a5c4ea6c | Ex Parte Snell | 565 So. 2d 271 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 271 (1990)
Ex parte Ronald Clyde SNELL.
Re Ronald Clyde Snell
v.
State.
88-982.
Supreme Court of Alabama.
May 18, 1990.
*272 Gary A. Hudgins, Dothan, for petitioner.
Don Siegelman, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for respondent.
ADAMS, Justice.
We granted Snell's petition for writ of certiorari in order to clarify an Alabama rule regarding hearsay; specifically, whether Alabama follows the common law; Federal Rule of Evidence 801; the Model Code of Evidence Rule 503(b); or Uniform Rule of Evidence 63(1). The facts pertinent to the issue before us are succinctly set out in the opinion of the Court of Criminal Appeals as follows:
In affirming the conviction, Judge Tyson cited Reeves v. State, 456 So. 2d 1156 (Ala. Crim.App.1984); Smith v. State, 513 So. 2d 1036 (Ala.Crim.App.1987); and Edwards v. State, 502 So. 2d 846 (Ala.Crim.App.1986), for the proposition that the admission of testimony such as that offered in this case was not error because the declarant was present and, therefore, available for cross-examination. 565 So. 2d 265 (Ala.Cr.App. 1989).
In a well-thought-out dissent, Judge Bowen states that the majority of the Court of Criminal Appeals appears to depart from the common law rule and he argues that it should not do so without acknowledging that fact. His comments, in pertinent part, are set forth below:
We are not inclined to make the radical change of departing from the common-law precedent, which is firmly established in Alabama. We agree with Judge Bowen's dissent and incorporate into our opinion that portion of it here quoted. Therefore, we reverse the judgment of the Court of Criminal Appeals on the ground that the impermissible hearsay admitted at the trial constituted reversible error, and we remand this case to that court.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES and HOUSTON, JJ., concur. | May 18, 1990 |
0b9e4e9a-24a7-4a0c-89d0-68d56f26b1bd | Douglas v. McDonald's Corp. | 565 So. 2d 137 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 137 (1990)
Larry DOUGLAS
v.
McDONALD'S CORPORATION and Jack Smith Enterprises, Inc.
89-383.
Supreme Court of Alabama.
May 25, 1990.
George L. Simons, Mobile, for appellant.
John N. Leach, Jr. and Joseph D. Steadman of Coale, Helmsing, Lyons, Sims & Leach, Mobile, for appellees.
STEAGALL, Justice.
Larry Douglas was attacked by a group of unknown assailants while eating at a McDonald's restaurant. He sued McDonald's Corporation and Jack Smith Enterprises, Inc., alleging that the defendants had been negligent and wanton in failing to provide him with a reasonably safe place while he was an invitee on the defendants' premises and in failing to respond to a request to provide police protection after being notified of a dangerous situation wherein Douglas had been threatened. The trial court entered summary judgment for both defendants.
Upon review of the record, we find no evidence that the defendants failed to respond to a request to provide police protection.
In regard to the allegation that the defendants had failed to provide a safe place, we affirm the judgment on the authority of Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala. 1990), and Williams v. First Alabama Bank, 545 So. 2d 26 (Ala.1989).
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur. | May 25, 1990 |
67f905d6-1f57-4439-9933-caef48b4209c | HIGH SCHOOL ATHLETIC ASS'N v. Scaffidi | 564 So. 2d 910 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 910 (1990)
ALABAMA HIGH SCHOOL ATHLETIC ASSOCIATION, et al.
v.
John SCAFFIDI, a minor, By and Through his father and next friend, Fred SCAFFIDI.
88-657.
Supreme Court of Alabama.
May 25, 1990.
Oakley Melton, Jr. of Melton, Espy & Williams, Montgomery, and Paul W. Brock and Stephan L. McDavid of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellants.
Richard L. Seelman, Mobile, for appellee.
ADAMS, Justice.
This Court's opinion of March 30, 1990, is withdrawn and the following is substituted therefor:
On December 22, 1988, John Scaffidi, a minor, acting by and through his father and next friend, Fred Scaffidi, sued the Alabama High School Athletic Association ("AHSAA"), Herman L. Scott, executive director of the AHSAA, and Jimmie L. Cal, associate executive director of the AHSAA, requesting injunctive relief.
During the 1987-88 school year, John was a student in the ninth grade at McGill-Toolen School, a private/parochial school in Mobile. At that time, his family's house was located in the Baker public school district. However, during that school year, a federal court order in a school desegregation case redrew school lines; under the new order, John's house was in the Davidson public school district. After learning about the modification of the districts, John and his parents decided that he should attend Davidson School, and he transferred from McGill-Toolen to Davidson. His transfer was purely voluntary and was not the result of athletic recruiting.
As a result of the federal court order moving some students from the Baker school district to the Davidson school district, the AHSAA determined that those students who had attended Baker in the 1987-88 school year and were rezoned to Davidson would not lose their athletic eligibility upon a transfer to Davidson.
Before the commencement of the 1988-89 school year, the principal of Davidson requested an eligibility ruling concerning John's eligibility status from Herman L. Scott, the executive director of the AHSAA. Scott's ruling denied John athletic eligibility for one year after his transfer to Davidson, because he had voluntarily transferred from a private school serving the entire City of Mobile to a public school in the City of Mobile and had not transferred *911 as the result of the rezoning of the public school districts. Scott's ruling was appealed to the AHSAA's First District Board. The First District Board held a hearing and upheld Scott's ruling. That ruling was then appealed to the Central Board of Control of the AHSAA. The Central Board held a hearing and likewise ruled that John was ineligible to participate in interscholastic athletics at Davidson for one year.
After exhausting all of his administrative remedies, John filed his complaint for injunctive relief. He sought an order enjoining the defendants from enforcing the ineligibility ruling. He argued that his change of public school districts from Baker to Davidson fell within Rule 1, Section 11, Exception 3, of the AHSAA 1988-89 Handbook, and that the AHSAA had arbitrarily failed to consider the applicability of this exception in his case when making its ruling.
The AHSAA, a voluntary organization comprised of 656 public and private schools, regulates the athletic eligibility of 73,000 students. Pursuant to the regulation purposes of the AHSAA, its members have developed by-laws, rules, and regulations. These rules and regulations are published annually in the Handbook. The transfer rule found in Section 11 of the Handbook reads as follows:
The two exceptions to the transfer rule are:
The handbook also contains certain "Notes and Cases" with reference to the transfer rule:
After a hearing, the trial court issued an order enjoining the defendants from denying John's immediate eligibility. The trial court's order stated in part:
In Scott v. Kilpatrick, 286 Ala. 129, 237 So. 2d 652 (1970), we set forth the standard of review regarding a court's jurisdiction in a high school athletic association's determination of the eligibility of amateur athletes:
286 Ala. at 132, 237 So. 2d at 655 (citations omitted) (emphasis added). See generally Annot., Validity of Regulation of Athletic Eligibility of Students Voluntarily Transferring from One School to Another, 15 A.L.R. 4th 885 (1982).
The test set forth in Kilpatrick has been continually reaffirmed. In Alabama High School Athletic Ass'n v. Rose, 446 So. 2d 1 (Ala.1984), we stated:
446 So. 2d at 5. See also Alabama High School Athletic Ass'n v. Medders, 456 So. 2d 284 (Ala.1984).
The case of Bruce v. South Carolina High School League, 258 S.C. 546, 189 S.E.2d 817 (1972), best addresses the AHSAA's claim that the application of the transfer rule to John is not arbitrary:
258 S.C. at 548, 189 S.E.2d at 819-20 (emphasis added).
We agree with the analysis of the Supreme Court of South Carolina, and thus hold that the AHSAA's ruling declaring John ineligible was not arbitrary. The trial court based its decision on the fact that John was "identically situated [to those students transferring from Baker to Davidson] except for his attendance at McGill-Toolen." This finding by the trial court was in error.
John's argument is based on the fact that the federal court order changed the public school zones in Mobile. Because of that change, the AHSAA permitted public school students who were affected by the rezoning to retain their eligibility upon transferring from Baker, a public school, to Davidson, another public school. While some students who were attending Baker prior to this action had the option to either remain at Baker, a public school, or voluntarily transfer to Davidson, another public school, those students who had never attended Baker and whose houses were located in the new Davidson zone were required to attend Davidson because of the federal court order. The federal court order applied exclusively to public school students. The fatal flaw in John's argument and in the holding of the trial court is that John's situation is not identical to that of those students. John voluntarily changed to a public school from a private school serving the entire city of Mobile.
Because we hold that the AHSAA's actions were not arbitrary, the order of the circuit court granting injunctive relief was in error.
ORIGINAL OPINION WITHDRAWN; OPINION SUBSTITUTED; APPLICATION OVERRULED; REVERSED AND JUDGMENT RENDERED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | May 25, 1990 |
e96b17ce-8142-4c98-8a54-def62ad9232c | Porter v. Jolly | 564 So. 2d 434 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 434 (1990)
Ella S. PORTER
v.
Donald G. JOLLY.
88-1287.
Supreme Court of Alabama.
May 18, 1990.
*435 Ernest Cory of Johnson & Cory, Birmingham, for appellant.
Carl E. Chamblee, Sr., Birmingham, for appellee.
ADAMS, Justice.
This appeal arises out of an unfortunate set of circumstances concerning a promise of marriage. Ella S. Porter appeals from a summary judgment in favor of Donald G. Jolly on her counterclaim for damages. We reverse and remand.
Ella S. Porter and Donald G. Jolly began living together in August 1985, after her divorce from her former husband. They lived together in Jolly's apartment. Porter was employed, but Jolly was not, and his only source of income was a disability check he received monthly.
Porter and Jolly lived together for over two and one-half years; on February 3, 1988, Porter filed a complaint for divorce from Jolly, alleging that a common law marriage existed between the two. Porter attached to her complaint a sworn affidavit that stated, in part:
Service was never obtained on Jolly, and, thus, he never entered an appearance in the case.
On March 14, 1988, Porter executed the following document, drafted by Jolly and addressed "To Whom it May Concern":
Porter argues that Jolly forced her to sign the document under duress, without benefit of counsel, and by the use of undue influence. She claims that she executed the document only upon the promise that Jolly would marry her.
On April 4, 1988, after signing the "To Whom It May Concern" document, Porter's complaint for divorce was dismissed upon her own motion. Porter argues that her dismissal of the complaint was premised upon Jolly's promise to marry her and that her execution of the document quoted above had been in response to that promise.
One month later, on May 4, 1988, Jolly filed an action for declaratory judgment, seeking a determination that no common law marriage existed between himself and Porter. Porter counterclaimed for damages, contending that Jolly had taken funds totalling over $100,000 from her. On September 30, 1988, Porter amended her counterclaim and asserted claims alleging conversion, fraud, and deceit. Porter argued that the funds delivered to Jolly were intended to be placed in a bank account, with the two of them being joint tenants, and were to be used as a "nest egg" for their future support as husband and wife. Porter contends that Jolly instead deposited the funds into a joint account with his son, cutting her off from the control and enjoyment of her funds. Jolly admitted receipt of the money, but contended that they were "gifts" and that the March 14, 1988, document constituted a release of any and all financial obligations that he might owe her.
On October 18, 1988, the trial court entered a summary judgment on Jolly's claim for a declaratory judgment holding that no common law marriage existed between the parties. Jolly later filed a motion for summary judgment on Porter's counterclaim. He argued that the position by Porter in her counterclaim was contrary to the affidavit she had executed on March 14, 1988, and that she was essentially reasserting the same claims she had presented in her original action for divorce. On March 28, 1989, the trial court entered a summary judgment on Porter's counterclaim. That judgment stated in part:
The law in Alabama is well settled that a party will not be permitted to maintain inconsistent positions or to take a position in regard to a matter that is directly contrary to, or inconsistent with, one previously assumed by him, at least where he had, or was chargeable with, full knowledge of the facts and where another would be prejudiced by his action. Dominex, Inc. v. Key, 456 So. 2d 1047, 1058 (Ala.1984); Brooks v. Peoples National Bank of Huntsville, 414 So. 2d 917 (Ala.1982); Russell v. Russell, 404 So. 2d 662 (Ala.1981). However, there are a number of limitations that should be placed upon this "doctrine of inconsistent positions," which is in the nature of an estoppel:
28 Am.Jur.2d § 70 Estoppel and Waiver (1966).
Thus, a party may not appropriately assert the defense of judicial estoppel or a prior inconsistent position unless it is demonstrated that the party against whom the estoppel is sought to be imposed actually procured a judgment in his favor as a result of the inconsistent position taken by him in the prior proceeding. Ellis v. Arkansas Louisiana Gas Co., 609 F.2d 436 (10th Cir.1979), cert. denied 445 U.S. 964, 100 S. Ct. 1653, 64 L. Ed. 2d 239 (1980); Chemical Bank v. Aetna Insurance Co., 99 Misc.2d 803, 417 N.Y.S.2d 382 (1979). In the instant case, the prior action did not go to judgment. Porter voluntarily dismissed the case before Jolly had even entered an appearance, presumably based upon the March 14, 1988, document and Jolly's alleged promise to marry her.
Moreover, it is also essential that the party claiming the estoppel be misled by the conduct of the party against whom the doctrine is invoked and in consequence change his position to his prejudice. First National Bank of Mobile v. Burch, 237 Ala. 680, 188 So. 859 (1939). "[T]he party claiming the estoppel must have been ignorant of the real facts, and, in reliance on the statements or admissions, he must have changed his position and sustained prejudice by reason thereof." First National Bank of Mobile, 237 Ala. at 686, 188 So. at 863. We cannot find in the record any evidence to indicate that Jolly was misled by Porter's conduct. Indeed, the facts seem to be such that Porter was the one who was misled and was prejudiced as a result of the alleged change of position.
The "inconsistent position" alleged by Jolly to have been taken by Porter in the prior proceeding arose out of the "To Whom It May Concern" document, wherein Porter is said to have released all financial obligations owed to her by Jolly, in consideration of his promise to marry her. Jolly relies on the case of Dominex, Inc. v. Key, supra, to support his position that Porter has asserted an "inconsistent position." However, upon a review of the facts in Dominex, Inc., we note that it was held that nothing in the prior lawsuit operated as an estoppel or waiver. To support its rationale, the Court relied on LeFurgey v. Beck, 244 Ala. 281, 13 So. 2d 179 (1943):
Dominex, Inc., 456 So. 2d at 1059, quoting LeFurgey v. Beck, 244 Ala. at 284, 13 So. 2d at 182. Applying the reasoning of LeFurgey, as adopted in Dominex, Inc., to the facts of the instant case, we conclude that clearly Porter has failed to benefit from any position she may have taken in her previous action.
In light of the foregoing, we hold that the trial court erred in entering the summary judgment against Porter's counterclaim alleging fraud, deceit, and conversion based upon the premise that she had taken a contrary position in her previous action.[1]
Therefore, the summary judgment in favor of Jolly on Porter's counterclaim for damages was in error.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] Porter characterizes the "To Whom It May Concern" document as an "antenuptial agreement" while Jolly characterizes it as a "release." We would note that in all likelihood it is not effective as either, because the document should fail for lack of consideration. | May 18, 1990 |
4d780dff-8bc2-44a8-9759-3e66c54fd15b | Ex Parte Carrell | 565 So. 2d 104 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 104 (1990)
Ex parte Jerry Ray CARRELL.
Re Jerry Ray Carrell
v.
State.
88-1549.
Supreme Court of Alabama.
May 11, 1990.
Rehearing Denied June 15, 1990.
*105 Thomas M. Haas and N. Ruth Haas, Mobile, for petitioner.
Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for respondent.
MADDOX, Justice.
The sole issue presented in this case is whether the defendant's right to a speedy trial was violated.
This Court granted the defendant's petition for a writ of certiorari to the Court of Criminal Appeals, which had affirmed the defendant's convictions in the Mobile County Circuit Court for two counts of first degree sexual abuse and one count of second degree sexual abuse. The Court of Criminal Appeals did not issue an opinion in the case, see 550 So. 2d 1086 (Ala.Cr.App. 1989); therefore, we are unaware of the reasons why that Court denied defendant any relief.
In regard to any claim by a defendant that his constitutional right to a speedy trial has been violated, a court must look at the specific facts and circumstances surrounding the particular claim and apply the four-part test set out in the landmark case of Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). Barker sets out these determinative factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant resulting from the delay.
The facts are as follows: Defendant was initially arrested in August 1984, based on an indictment charging him with the same offenses that form the basis for his convictions in these cases. He appeared in court to answer the charges in September 1984, but at that time the charges were nol prossed on motion of the State. After those first charges were dismissed, the following events transpired:
It is apparent from the facts set out above that defendant's convictions of sexual abuse came almost three years after the return of the second indictment against him by the grand jury, and more than four years after the initial indictment had been returned and the defendant had been arrested thereon.
It is apparent from the record in this case that the defendant, shortly after his arrest on the second indictment, filed a motion to dismiss, in which he included as a ground for dismissal the allegation that his right to a "speedy trial" had been denied. The defendant asks this Court to review only the trial court's denial of his motion to dismiss the indictment on the "speedy trial" ground. While the defendant's convictions were based upon his entry of pleas of guilty to the charges, the record clearly shows that the trial judge, the district attorney, and the defendant all understood that he had the right to appeal the denial of his "speedy trial" claim.
It is apparent that defendant's conviction occurred more than four years after he was initially indicted on the charges.
He was arrested on the original indictment shortly after its return, at his place of employment in August 1984. As the facts set out above show, those charges were nol prossed on motion of the State's attorney in September 1984, and the defendant was not reindicted until November 18, 1985, over one year later.
The record shows that within a week of the return of the second indictment, the sheriff's department first attempted to serve it upon the defendant and to arrest him. According to testimony of sheriff's deputies, the sheriff returned the warrant because the address of defendant on the arrest warrant was inaccurate.[2] The record also shows that the sheriff had a task force that made an attempt to serve all outstanding arrest warrants, including the defendant's, during the latter part of *107 1986 and the early part of 1987.[3] The sheriff's justification for not finding the defendant was based on a claim that the address on the warrant was for a house number on Dewitt Street and that the numbering system on that street had been changed, and, although defendant had not moved, the house number may have changed.[4] There was no evidence presented to indicate that the defendant attempted to avoid service of the warrant, and the State does not attempt to justify the delay on this ground.
On August 7, 1987, the defendant was arrested at his place of employment. This was the same place of employment at which he had been arrested by the sheriff in 1984.[5]
The State and the defendant agree on one point of law: The right to a speedy trial is triggered when a criminal prosecution has begun. Hayes v. State, 487 So. 2d 987 (Ala.Cr.App.1986), citing United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), in which the United States Supreme Court stated, inter alia:
United States v. Marion, 404 U.S. 307 at 320, 92 S. Ct. 455 at 463. We agree with the State that the defendant's right to a speedy trial was not triggered by the return of the 1984 indictment, because those charges were nol prossed by the State, but we are not persuaded that the dismissal of those charges, and the delay of over a year before the new indictment was returned, should be completely ignored.[6]
In order to decide the precise issue presented by this petition, we accept November 18, 1985, as the date when the defendant's constitutional right to a speedy trial began; that was the date when the second indictment was returned. Although the defendant was never tried, because he entered a plea of guilty, with leave to appeal his "speedy trial" claim, we consider that he was "tried" as of the date when he was convicted and sentenced on his plea of guilty on September 1, 1988.
The State and the defendant are in agreement that whether he was denied his right to a speedy trial must be determined in accordance with the four factors set forth in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), that is, (1) the length of the delay, (2) the reasons for the delay, (3) defendant's assertion of his right, and (4) prejudice to the defendant resulting from the delay.
Applying these factors to the present facts, we find that the defendant was denied the right to a speedy trial.
(1) Length of delay. Whether the length of delay violates the right to a speedy trial is "necessarily dependent upon *108 the peculiar circumstances of the case." Barker v. Wingo, 407 U.S. at 530, 531, 92 S. Ct. at 2192. Although the Barker Court recognized that the complexity of the charge would have a bearing on whether the length of delay was reasonable, we find that the offenses charged here are not unusually complex, and should not have required any extra preparation time beyond the time normally allotted to the State to prepare a case. Consequently, we find that under the facts of this case, the delay in this case was presumptively prejudicial.
(2) Reasons for the delay. It is clear from the facts presented here that the defendant has not shown that the State deliberately delayed his trial in order to gain a prosecutorial advantage.[7] The State argues that the delay was justified because the address on the arrest warrant was incorrect. Defendant argues that the evidence clearly shows that he lived at the same place where he lived when the first indictment was returned, and that he worked at the same place where he was arrested on the first indictment, and that the record is devoid of any evidence that he deliberately attempted to avoid service of the warrant. We interpret the evidence the same way. The delay, of course, was caused by the failure of the State to serve the arrest warrant on the defendant. The State argues that the delay was justified in this case because the sheriff's department diligently tried to serve the warrant on the defendant. We cannot excuse so easily the failure of the State to serve the warrant. The facts show that the defendant was finally arrested by the sheriff's department at his place of employment. He had been employed there for 18 years and had been arrested there by someone in the sheriff's department three years before on the same charges. Also, although it is not clear how the improper address was placed on the warrant, it is clear that this was not the fault of the defendant. The failure of the sheriff to serve the warrant was caused by the State's failure to ascertain the whereabouts of the defendant, who admittedly was not trying to evade service of process. The evidence shows that officers of the State responsible for discovering the place where defendant could be found did not attempt to find the defendant's former or present address or to make any attempt to locate him at his place of employment where he had been located before. We think this constitutes negligence by the State, and although negligence is not weighed as heavily against the State as deliberate delay, it nevertheless must be weighed against the State. Taylor v. State, 429 So. 2d 1172 (Ala.Crim.App.1983), cert. denied, 464 U.S. 950, 104 S. Ct. 366, 78 L. Ed. 2d 326 (1983); consequently, we find that the State's neglect to arrest the defendant in this case in a timely manner is weighty enough to raise a presumption of prejudice to the defendant in this case.
(3) The defendant's assertion of his right. The defendant timely asserted his rights in this case by filing his motion to dismiss demanding a speedy trial approximately five weeks after his arrest. He testified that, prior to his arrest, he did not know that the charges were outstanding, and there is absolutely no evidence that he knew that he had been reindicted on the same charges that had been previously dismissed.
(4) Prejudice to the defendant. The defendant contends that he was prejudiced by the delay because, he says, his memory has faded. Although ordinarily a mere assertion of a loss of memory is not enough of a showing of prejudice to support a finding that a defendant has been denied due process, where the delay is excessive and is the result of unexcused inaction by the State, the delay is prima facie prejudicial. Murray v. Wainwright, 450 F.2d 465 (5th Cir.1971); United States ex rel. Solomon v. Mancusi, 412 F.2d 88 (2d *109 Cir.), cert. denied, 396 U.S. 936, 90 S. Ct. 269, 24 L. Ed. 2d 236 (1969). We find that the delay in this case was of such length that defendant's right to a speedy trial has been violated. While the record does not show why the initial charges were dismissed, it would appear that defendant, at the time of the dismissal, had a right to assume that he would not be charged again, and unexcused inaction in a case involving alleged sexual misconduct involving children could be especially prejudicial to a defendant, because the prosecution must depend on the testimony of the alleged victims in many cases. Defendant entered a plea of guilty with a reservation of his right to insist on his "speedy trial" claim; the validity of that claim does not depend upon whether he is guilty or not guilty of the charges levied against him. The right to a speedy trial is a right guaranteed to every citizen by the state and federal constitutions and it acts as a limitation on State or Government action without regard to the guilt or innocence of the defendant, and in that regard is not unlike the right of a defendant to have illegal drugs excluded from evidence because they were obtained unconstitutionally by State or Government action.
Based upon the above, we find, under all the facts and circumstances of this case, that the defendant was denied his right to a speedy trial. In making this determination, of course, we do not decide whether the defendant is guilty of the charges levied against him. The judgments are reversed and the judgments are rendered for the defendant.
REVERSED AND JUDGMENTS RENDERED.
HORNSBY, C.J., and JONES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
SHORES, J., dissents.
[1] The plea of guilty was entered without the defendant's waiving his right to appeal in regard to his "speedy trial" claim. The record shows the following:
"Friday, May 6th, 1988
"This day in open court came the State of Alabama by its District Attorney and thereupon in open court on this day; It is ordered by the Court that the Order of April 7th, 1988, be and the same is hereby amended EX [MERO MOTU], and by agreement of parties, to include defendant's reservation of his right to appeal the Court's ruling of February 11th, 1988, denying defendant's Motion to Dismiss filed September 16th, [1987]."
[2] There is nothing in the record to indicate that the petitioner was living in a different house or had attempted, in any manner, to avoid service, and the petitioner testified that he did not know that the indictments had been returned until he was arrested upon them in August 1987.
[3] There is some evidence that there may have been an attempt to serve this indictment in March 1987. The record is silent regarding the person or persons responsible for getting an address on the arrest warrant, or for checking with complaining witnesses to learn the whereabouts of the petitioner.
[4] The appellant had moved at one point from his mother's house to the house next door, but neither address was the one shown on the warrant, and there is nothing in the record to indicate why the officers of the State responsible for getting the correct address of persons charged in outstanding indictments were unaware of governmental action that may have changed the numbering scheme on Dewitt Street or that defendant was arrested on the first indictment at his place of employment.
[5] The record does not show why the sheriff had not attempted earlier to serve the second indictment on the defendant at the same place where the sheriff had served him with the first indictment.
[6] The record in this case does not show why that first indictment was nol prossed, but if it was nol prossed in order to give the State a prosecutorial advantage, then it would not be completely clear that the delay should not be counted in the total. Petitioner contends that this period of delay should be counted, but cites no authority and presented no evidence other than the fact that the original charges were nol prossed.
[7] Defendant does argue that the length of delay from the time of the return of the first indictment should be counted, but defendant has not shown the reasons why the State nol prossed the first indictment. We cannot assume that the indictment was nol prossed to give the State a prosecutorial advantage, but we cannot assume otherwise, either. The record just does not show why the indictment was dismissed on motion of the State and why the State decided to seek indictment again approximately one year later. | May 11, 1990 |
9941230a-3c2c-49c0-ad68-cc3af87913f1 | Bates v. Meyer | 565 So. 2d 134 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 134 (1990)
Emmett S. BATES
v.
Dr. Richard MEYER.
89-138.
Supreme Court of Alabama.
May 25, 1990.
*135 Charles A. Dauphin and Kearney Dee Hutsler of Baxley, Dillard & Dauphin, Birmingham, for appellant.
Robert D. Norman, Jr. of Norman, Fitzpatrick, Wood, Williams & Parker, Birmingham, for appellee.
ADAMS, Justice.
This is an appeal from a summary judgment for the defendant, Dr. Richard Meyer, in a medical malpractice case. The plaintiff, Emmett S. Bates, contended that Dr. Meyer had negligently "lost" a biopsy abstracted from his wrist. We affirm.
Emmett Bates suffered from chronic pain in his right wrist and was seen by Dr. James Lipstate at the Arthritis Clinic at the University of Alabama in Birmingham. Dr. Lipstate thought that his pain was caused by rheumatoid arthritis, pigmented villondular synovitis or possibly an infection. Dr. Lipstate suggested that Mr. Bates have a biopsy taken to help diagnose his wrist problem. Dr. Lipstate referred him to Dr. Richard Meyer for evaluation and a biopsy.
On January 31, 1984, Dr. Meyer performed a limited wrist synovectomy and removed a small synovial biopsy. Dr. Meyer testified that during the surgery he was able to rule out pigmented villondular synovitis and infection as possible problems.
After his surgery, Bates was seen by Dr. Meyer several times over a period of months on an outpatient basis. During one of Mr. Bates's office visits, Dr. Meyer called the laboratory where his biopsy had been sent and was informed that the findings indicated that there was no rheumatoid growth. After this analysis, Dr. Meyer advised Bates that he was unable to determine from the biopsy the exact source of his problems and diagnosed him as having synovitis of unknown etiology and recommended that he continue to see a rheumatologist.
Bates testified that he was told by Dr. Claude Bennett, a doctor in the Arthritis Clinic, that his biopsy had been lost and had never been sent to the "routine pathology laboratory" for examination. It was later discovered that the biopsy had been sent to Dr. William J. Koopman at a "research laboratory" at the direction of Dr. Meyer.
Dr. Meyer testified that he sent the biopsy to Dr. Koopman for analysis to determine the possibility of rheumatoid arthritis. Dr. Koopman did not operate a diagnostic laboratory, but had received grants to do research specifically in synovial tissue and its relationship to arthritis. Dr. Meyer testified that he sent the biopsy to Dr. Koopman because he felt that "this would be the best way to find out if this was indeed rheumatoid arthritis."
Bates then went to Dr. Phillip Wright, an orthopedic surgeon in Memphis, on March 13, 1985. Dr. Wright concurred in Dr. Meyer's opinion that Bates was suffering from synovitis of unknown etiology, and gave Bates several options to correct his problem. Bates then elected to undergo another limited wrist synovectomy and a synovial biopsy. Prior to the scheduled synovectomy, a synovial biopsy was taken. The pathology report revealed no growth of organisms, germs, infections, and no specific diagnosis could be made on the appearance of the tissue. After the surgery, Dr. Wright's diagnosis remained as synovitis of unknown etiology. He recommended that Bates be treated by a rheumatologist.
On June 30, 1986, Bates filed suit against Dr. Meyer, Dr. Koopman, and other physicians and nurses who had treated him, alleging that they had been negligent, that through their negligence his biopsy had been "lost," and that as a result of their negligence, he was forced to undergo surgery again on his wrist to obtain another biopsy. Dr. Meyer answered the complaint, denying any negligence and averring *136 that he had exercised reasonable care, diligence, and skill in treating Bates.
All defendants other than Dr. Meyer were voluntarily dismissed on June 21, 1989. On September 26, 1989, Dr. Meyer filed a motion for summary judgment, supported by his deposition testimony, his affidavit testimony, and the deposition testimony of Dr. Phillip Wright. Dr. Meyer's affidavit stated that "[i]n exercising, accessing, and treating Emmett C. Bates, [he] exercised that degree of care, skill, and diligence, which is ordinarily possessed and used by physicians in the national medical community in the same general line of practice under similar circumstances." The trial court entered summary judgment in favor of Dr. Meyer, and Bates appeals from that judgment.
The legal duty imposed upon physicians is to exercise the degree of reasonable care, diligence, and skill that reasonably competent physicians in the national medical community would ordinarily exercise when acting in the same or similar circumstances. Keebler v. Winfield Carraway Hospital 531 So. 2d 841 (Ala.1988). To recover damages for an alleged breach of this duty, a plaintiff must produce evidence that establishes (1) the appropriate standard of care, Dobbs v. Smith, 514 So. 2d 871 (Ala.1987); (2) the doctor's deviation from that standard, Dobbs, supra; and (3) a proximate causal connection between the doctor's act or omission constituting the breach and the injury sustained by the plaintiff. Ensor v. Wilson, 519 So. 2d 1244 (Ala.1987).
The plaintiff must adduce some evidence indicating that the alleged negligence probably caused the injury; a mere possibility is insufficient. If there is a scintilla of evidence[1] that the negligence complained of probably caused the injury, then a jury question is presented and summary judgment is improper. Howard v. Mitchell, 492 So. 2d 1018 (Ala.1986).
Bates's position in this case is somewhat confusing. In his complaint, he contends that Dr. Meyer "lost" his biopsy, while he argues in his brief that the biopsy was "misplaced" and that Dr. Meyer failed to send the biopsy to a pathologist for microscopic examination to rule out numerous possible medical problems.
While the trial court did not express its rationale for entering the summary judgment, the parties have spent a great portion of their briefs arguing whether expert medical testimony is necessary in this case. Bates argues that expert medical testimony was not required because, he says, the allegations of the case are simple and fall within the comprehension of a layman.
To establish a physician's negligence, the plaintiff must ordinarily proffer expert medical testimony as to what is or is not the proper practice, treatment, or procedure. Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969). However, the following situations have been found to be exceptions to the general rule that expert medical testimony is necessary: (1) where a foreign instrumentality is found in the plaintiff's body following surgery, Sellers v. Noah, 209 Ala. 103, 95 So. 167 (1923); (2) where the injury complained of is in no way connected to the condition for which the plaintiff sought treatment, Parrish v. Spink, 284 Ala. 263, 224 So. 2d 621 (1969); (3) where the plaintiff employs a recognized standard or authoritative medical text or treatise to prove what is or is not proper practice, Zills v. Brown, 382 So. 2d 528 (Ala.1980); and (4) where the plaintiff is himself or herself a medical expert qualified to evaluate the doctor's allegedly negligent conduct, Lamont v. Brookwood Health Services, Inc., 446 So. 2d 1018 (Ala. 1983).
We need not address the "medical expert" issue, because we have reviewed the record and cannot find any evidence that Dr. Meyer did, or failed to do, anything that probably caused any injury to Mr. Bates. Admittedly, there was some confusion when Dr. Bennett informed Mr. Bates that his biopsy had been lost, but *137 apparently he was unaware that the biopsy had been sent to Dr. Koopman for rheumatoid arthritis analysis. In any event, that confusion does not rise to the level of medical malpractice. It is indeed unfortunate that Bates elected to undergo another biopsy only to find out that the results were still inconclusive; however, the existence of an unfortunate result does not raise an inference of culpability. Holt v. Godsil, 447 So. 2d 191 (Ala.1984).
For the foregoing reasons, we conclude that the trial court properly entered the summary judgment for Dr. Meyer. Therefore, the judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
[1] This case was filed prior to June 11, 1987; therefore, the "scintilla rule" is the applicable standard in this case. See Ala.Code 1975, § 12-21-12. | May 25, 1990 |
679a86b2-5a9f-499f-b020-b1232cee1849 | REGIONAL HEALTH SERV. v. Hale County Hosp. | 565 So. 2d 109 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 109 (1990)
REGIONAL HEALTH SERVICES, INC., and Hale Health Corporation
v.
HALE COUNTY HOSPITAL BOARD.
HALE COUNTY HOSPITAL BOARD
v.
REGIONAL HEALTH SERVICES, INC., and Hale Health Corporation.
88-787, 88-916.
Supreme Court of Alabama.
May 18, 1990.
Rehearing Denied July 20, 1990.
James C. Huckaby, Jr. and Lisa J. Huggins of Haskell, Slaughter & Young, Birmingham, for appellants/cross-appellees.
Richard F. Ogle and Douglas J. Centeno of Schoel, Ogle, Benton, Gentle and Centeno, Birmingham, and Robert C. Roseberry, Greensboro, for appellee/cross-appellant.
*110 ADAMS, Justice.
Regional Health Services and Hale Health Corporation appeal from a judgment based upon a jury verdict awarding the Hale County Hospital Board a total of $289,440.93 on its claim that the defendants wrongfully converted three checks.
Regional Health Services (hereinafter "RHS") is a corporation in the business of leasing, operating, and managing hospitals. On October 1, 1983, the Hale County Hospital Board (hereinafter "Board") entered into a hospital lease agreement with Hale Health Corporation (hereinafter "HHC"), a wholly owned subsidiary of RHS, to lease the Hale County Hospital in exchange for the payment of rent. Rent was $100,000 per lease year paid in monthly installments of $8,333.33. The lease transferred all of the Board's tangible and intangible personal property, including cash, accounts receivable, and assets, and all of its liabilities, to HHC for the operation of the hospital.
The term of the lease was five years, commencing on October 1, 1983, and ending on September 30, 1988. However, the lease also contained a termination clause by which HHC could terminate the lease after the expiration of two years, upon 90 days' written notice to the Board.
After experiencing severe financial losses in its operation of the hospital, HHC timely exercised the termination option of the lease in July 1985. Because the lease was silent as to the distribution of assets and liabilities upon early termination of the lease, the Board and HHC attempted to negotiate a settlement.
Through a series of proposals and counter-proposals, HHC offered to leave the Board in the same net-asset position that the hospital was in on the first day of the lease. The Board argues that it never agreed to the "net-asset comparison"; however, there is evidence that its acting chairperson did sign a letter acknowledging HHC's intent as to the net-asset comparison.
The lease was terminated as of September 30, 1985. In October 1985, HHC demanded from the Board $168,000, which, it contended, represented the difference in the net assets transferred to HHC on October 1, 1983, and the net assets transferred back to the Board on September 30, 1985, including the cost of certain equipment that the Board indicated that it wanted to purchase from HHC. HHC provided the Board with copies of a balance sheet indicating the difference between net assets at the beginning and at the end of the lease as $168,000.
During the next few weeks settlement negotiations continued between HHC and the Board. Throughout these negotiations the Board was represented by able counsel, as well as by its accountant. The Board eventually offered to settle with HHC and RHS for $34,445.07. That amount included the purchase of certain equipment from HHC, a credit for employee health insurance paid by HHC, and a deduction for a portion of the September lease payment. A release was executed on February 20, 1986, and it provided in part:
(Emphasis added).
When the Board initially entered into the lease agreement with HHC, the hospital employees became ineligible to participate in the State Retirement System. The hospital employees who were "vested" could keep their funds in the system or withdraw their money. The employees who were not vested received funds for the amounts they had contributed to the retirement fund.
In January 1984, the hospital received a check from the Retirement Systems of Alabama in the amount of $119,904. That amount represented the funds that the hospital had paid to the Retirement System for the benefit of its employees. Upon receipt of the check, the business manager asked the vice president of HHC, who was responsible for operating the hospital, what to do with the check. According to the Board, he replied, "Write a receipt for it and put it in the drawer until you deposit and don't say anything to anybody about it." It is undisputed that the check was deposited in the hospital's account and was used by HHC for the operation of the hospital.
On February 6, 1984, the hospital received $10,889.70 from Blue Cross-Blue Shield in payment of a retroactive settlement from Medicare for the cost reporting period that had ended September 30, 1983. On May 7, 1984, the hospital received $79,000 from Medicare for another retroactive settlement due for the cost reporting period that had ended September 30, 1983. A retroactive settlement occurs when the hospital has been overpaid or underpaid after totalling the monthly payments received during the cost reporting period. The Board contends that the checks covered the period of time preceding the inception of the lease, when the Board operated the hospital. It is undisputed that the checks were deposited in the hospital's account and used in the operation of the hospital. There was also evidence that the two checks were reflected on the balance sheets provided to the Board.
The lease contained the following provision with regard to retroactive settlements:
The lease also contained a provision stating that HHC would be transferred "value equal to all the accounts and notes receivable from governmental or other third party payors which receivables by law or contract may not be assigned." The apparent effect of the two provisions was to except from transfer the payments from third-party payors that by law were not assignable, but to transfer the "equivalent" of the assets to HHC.
*112 HHC argues that the Board actually knew about the receipt of the checks or was shown documents reflecting those amounts as assets of the Board when negotiating the settlement to terminate the lease. HHC further argues that the Board was given credit on the comparative balance sheet for the check from the Retirement Systems as an "other account receivable" and for the Medicare checks as "retroactive settlements," another receivable asset of the Board. The Board claims that it was never informed about receipt of any of the checks prior to its execution of the release. The Board further claims that the checks were the property of the Board and were wrongfully converted by RHS and HHC.
On February 12, 1988, the Board sued RHS and HHC, seeking declaratory relief and asserting claims based on fraud, money had and received, unjust enrichment, conversion, and breach of the lease agreement. HHC and RHS answered the complaint and asserted the affirmative defenses of the statute of limitations and release.
On September 23, 1988, RHS and HHC filed a motion for summary judgment. The primary ground for their motion was that the release barred all claims asserted by the Board in its complaint. The trial judge denied the motion, and the case proceeded to trial.
At the close of the Board's evidence and again at the close of all the evidence, RHS and HHC moved for a directed verdict based on the release. The trial judge denied the directed verdict, based on his ruling that the release did not bar any tort claims, including conversion.
The case was ultimately submitted to the jury only on the conversion claim. The jury returned a verdict for the Board and against RHS and HHC in the amount of $90,589 in compensatory damages and $10,000 in punitive damages on the Board's claim that the defendants had converted the checks from Blue Cross and Medicare. The jury also returned a verdict in the amount of $119,904 in compensatory damages and $10,000 in punitive damages on the Board's claim that the defendants had converted the check from the Retirement Systems of Alabama. Judgment was entered against the defendants in the amount of $289,440.93representing $210,493 in compensatory damages, $20,000 in punitive damages and $58,947 in interest.
The defendants timely filed a motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The trial court failed to enter an order within 90 days from the date of the filing of the motion, and the motion was deemed overruled by operation of law, pursuant to Rule 59.1, A.R.Civ.P. The trial court entered an order after the expiration of 90 days ordering a remittitur, but purporting to deny the motion for new trial.[1]
RHS and HHC raise several issues on appeal, but we need address only one. That issue is whether the trial court correctly concluded that the release was unambiguous and did not bar the Board's conversion claim.
This issue was properly a question of law for the trial court. Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala.1983). In order to determine whether the language of the release was unambiguous, we must give the words of the release their ordinary meaning. Food Service Distributors, Inc. v. Barber, 429 So. 2d 1025 (Ala.1983). Written releases must also be given effect "according to their terms and the intentions of the parties thereto." Ala.Code 1975, § 12-21-109.
The "ordinary meaning" of the language in the release is comprehensively expressed with respect to the claims it sought to release. Reviewing the language within the four corners of the release, we find it *113 apparent that the essence of the release was to prevent the parties from asserting any claims that might arise out of the lease. The intent of the parties was expressed in the language stating that they were "desirous of cancelling and terminating the said lease in its entirety and putting the same to rest for any claim or claims that one may have against the other." The release exhaustively sought to release and discharge the parties "from all liability that may have resulted from the said lease," and it added:
(Emphasis added.) This language indicates that the intention of the parties was to forever extinguish any claims involving the lease of the hospital.
In Alabama Power Co. v. Blount Brothers Corp., 445 So. 2d 250 (Ala.1984), this Court reviewed the language of a release arising out of a contract dispute. Blount Brothers and Alabama Power had contracted to construct a dam, and after the dam was completed, a dispute arose between the parties over sums due because of delays in the construction. The claims were settled and the parties entered into a release agreement. The language in the agreement was in the terms of a general release, but the parties expressly reserved and excepted certain claims from the release. The dam failed five years after it was completed. Alabama Power sued Blount Brothers, as well as other defendants, on the grounds that the contract had been breached and certain work had been performed negligently.
Blount Brothers moved for summary judgment based upon the terms of the release agreement. The trial court found, as a matter of law, that the terms of the release were unambiguous and that they barred Alabama Power's claims, both in contract and in tort, against Blount Brothers. 445 So. 2d at 251.
In giving the words of the release agreement their "ordinary meaning," we stated:
Alabama Power Co., 445 So. 2d at 252-53 (emphasis added in Alabama Power Co.).
*114 With a general release, the parties obviously intend to release all claimscontract claims as well as tort claims. It is in this regard that the trial court erred.[2] If the parties had wanted to limit the release, they could have expressly reserved and excepted certain claims, including tort claims, from the release.
Because we hold that the trial court erred in its ruling that the release did not bar the conversion claim, we need not reach the remaining issues raised by HHC and RHS. We would note that, even if the conversion claim had not been barred by the release, we would doubt whether that claim should have been presented to the jury. See Covington v. Exxon Co., 551 So. 2d 935 (Ala.1989); Lewis v. Fowler, 479 So. 2d 725 (Ala.1985).
The Board contends that, in light of the trial court's ruling that the release did not bar the conversion claim, all the parties agreed that there was no reason to present the fraud in the inducement claim to the jury. The Board maintains that if this Court determines that the conversion claim is barred by the release, then the case should be remanded for a new trial on the issue of fraud in the inducement.
We have reviewed the record. It is apparent that the Board voluntarily withdrew its claim of fraud in the inducement from the jury's consideration. An appellate court will consider only those issues properly delineated as such and will not search out errors that have not been properly preserved. Ex parte Riley, 464 So. 2d 92 (Ala. 1985); Humane Society of Marshall County v. Adams, 439 So. 2d 150 (Ala. 1983).
88-787 REVERSED AND JUDGMENT RENDERED.
88-916 DISMISSED AS MOOT.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] The Board cross-appealed "in the event that the Supreme Court determines that the April 3, 1989, order of the trial court granting a remittitur of punitive damages was a timely exercise of the court's jurisdiction on the defendants' motion for judgment notwithstanding the verdict, or in the alternative, motion for new trial." RHS and HHC filed with this Court a motion to strike the trial court's order of April 3, 1989, which was granted. Therefore, the Board's cross-appeal is moot.
[2] Our holding today, as it relates to the release of "claims," should be distinguished from the holding in our recent case referring to "any and all persons." In Pierce v. Orr, 540 So. 2d 1364 (Ala.1989), we held that unnamed third-parties, referred to in a release as "any and all parties," who have paid no consideration and who do not otherwise occupy a privity relationship with the named payors, bear the burden of proving by substantial evidence that they are parties intended to be released. 540 So. 2d at 1367. | May 18, 1990 |
5a0d2eac-2c93-4193-aca6-cf2f366f6f3c | Adams v. Carpenter | 566 So. 2d 236 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 236 (1990)
Angela ADAMS and Beverly May
v.
C. Jack CARPENTER and Lowell A. Tillis, as co-executors of the Estate of Marvin L. Tillis, deceased; and C. Jack Carpenter, as trustee of the Marvin L. Tillis Family Trust.
88-1539.
Supreme Court of Alabama.
July 13, 1990.
*237 Edward M. Price, Jr. of Farmer, Price, Smith, Hornsby & Weatherford, Dothan, for appellants.
Joe Espy III of Melton, Espy & Williams, Montgomery, for appellee.
JONES, Justice.
This is an appeal from a judgment in favor of the plaintiffs/appellees in an action in which the plaintiffs sought a construction of the will of the late Marvin L. Tillis. The trial court held that the will was ambiguous and unclear, and went on to construe the provisions of the will contrary to the position of the defendants/appellants, Angela Adams and Beverly May, granddaughters of Marvin L. Tillis. We affirm.
Marvin L. Tillis executed his last will and testament on November 20, 1985; that will included the terms of the "Marvin L. Tillis Family Trust" ("the Trust") and replaced an earlier will executed in July 1985. The terms of the later will were essentially the same as the earlier will, except for a change in the beneficiary of a charitable devise and the addition of subparagraph (F) to Article IV (the Trust):
*238 Tillis died on December 31, 1985, and his will was filed for probate in January 1986. Despite a "no-contest" provision[1] in Marvin Tillis's will, Frances Adams, Tillis's daughter, instituted a contest of the probate of her father's will on April 22, 1986, alleging that her father had not been competent to execute the will and alleging undue influence by Tillis's lawyer and accountant in causing Tillis to execute the will. Frances Adams was the sole contestant of the will, and the appellants in the instant appeal, Angela Adams and Beverly May (daughters of Frances Adams), were among the defendants in the contest action who defended the will of Marvin Tillis.
After settlement negotiations, the parties to the contest action filed a "Stipulation For Dismissal" and, based upon the parties' stipulation, the trial court entered a final judgment and held:
On June 15, 1988, Lowell Tillis and Jack Carpenter, as co-executors of the estate of Marvin Tillis, and Carpenter as the Trustee of the Trust, filed a complaint in the circuit court seeking construction of the will of Marvin Tillis and instructions "as to the distribution of income and as to the distribution of the trust principal and income, if any, ... upon termination of the [trust]." The defendants in this action were all of the named beneficiaries of the Trust. The co-executors alleged in the complaint that a dispute among the beneficiaries had caused the filing of the complaint; however, the co-executors went on to allege as follows:
In their complaint, Tillis and Carpenter also advised that they intended to take the depositions of Carpenter and G. David Johnston to preserve the testimony of the two men, who, the plaintiffs allege, "were aware of and knew the intentions of Marvin L. Tillis in regard to his last will and testament." Carpenter, a certified public accountant, had been Marvin Tillis's accountant from "the early '70's until [Tillis's] death," and Johnston, Marvin Tillis's lawyer for several years, had drafted the will and the trust provision contained therein.
At a nonjury trial, the court heard the testimony of Jere Segrest, the lawyer who had represented Frances Adams in her earlier contest of her father's will; Wade Baxley, the lawyer who had represented the Tillis estate and the co-executors in the earlier *239 will contest case; and Angela Adams, daughter of Frances Adams and one of the two beneficiaries/defendants claiming an enhanced share of the estate.
When the trial began, and before testimony was taken from any of the witnesses, the trial court, responding to a motion in limine that was renewed at trial, allowed the lawyer representing Angela Adams and Beverly May to file a continuing objection to the introduction of documents and testimony "as pertains to any evidence, or any documents that relate to what Mr. [Marvin] Tillis's intent was as expressed either to David Johnston or Jack Carpenter." Segrest, Baxley, Johnston, and Carpenter were also allowed to respond to the questions regarding whether Article IV(F) of the will was ambiguous and regarding their interpretation of that provision in relation to Article IV as a whole.
The trial judge, in his final judgment, began by stating that he had considered only that evidence that was admissible under Alabama law. He then described the posture and disposition of the earlier will contest case filed by Frances Adams, and found that the parties in the instant case "were on the same side and were not adversaries in the will contest litigation." The remaining portion of the trial court's judgment reads as follows:
In addition to ordering that the co-executors administer the estate and the Trust in accordance with his final judgment, the trial judge also denied the pending motions of defendants Angela Adams and Beverly Adams May, including the evidentiary motion in limine. Of the eight named defendants/ *241 beneficiaries, Angela Adams and Beverly Adams May are the only ones to appeal from the trial court's final judgment.
Adams and May first contend that the trial court erred in overruling their motion to dismiss the co-executors' complaint on the alternative grounds of res judicata and collateral estoppel. They maintain that, pursuant to Ala.Code 1975, § 43-8-200, the earlier will contest case, filed by their mother and resolved by a judgment based on a settlement agreement, is a bar to the instant complaint. We disagree.
Section 43-8-200 provides, in part:
It is apparent in the language of the statute itself that this provision does not operate to bar the instant action. The coexecutors of the estate of Marvin L. Tillis filed the complaint in this case, seeking the trial court's construction of the terms of Marvin L. Tillis's will and the trust provision contained therein, and seeking instructions from the trial court as to the proper administration of the estate, particularly of the Marvin L. Tillis Family Trust. There is no hint of contest of the will or of the probate of the will in the complaint.
The facts that gave rise to the case of Caverno v. Webb, 239 Ala. 671, 196 So. 723 (1940), are dissimilar to those of the instant case. There the appellant attacked the jurisdiction of the equity court to entertain a contest of a probated will on the ground of the existence of a codicil devise contrary to a devise made in the will. The Caverno Court, however, stated a proposition of law in Alabama that directly affects the instant appeal: "Section [43-8-200] saying: `No further proceedings shall ever be entertained in any courts of this state to probate or contest the probate of such will,' is not to be construed to prevent proceedings to effectuate the decree rendered in the contest proceedings. It merely declares the finality of the contest in [circuit court]." Caverno v. Webb, 239 Ala. at 674, 196 So. at 724.
The "decree rendered in the contest proceedings" in the instant case was based upon the settlement agreement of the parties and their stipulation of dismissal of the action and, as concerns the provisions of the contested will of Marvin L. Tillis, merely ordered that the "no contest" article would not be invoked against Frances T. Adams and that Article IV(F) would be applicable to any devises to Frances T. Adams. The co-executors, in filing their complaint for construction and instructions, were requesting assistance in effectuating both the will of the testator and the final judgment in the earlier will contest case through a proper administration of Marvin L. Tillis's estate. We hold that § 43-8-200 has no application to the facts of this case.
Neither is the instant litigation barred by either the doctrine of res judicata or the doctrine of collateral estoppel. As recently as December 1989, this Court reaffirmed the law with regard to res judicata and collateral estoppel. In Campbell v. Campbell, 561 So. 2d 1060 (Ala.1989), we quoted with approval the following explanation of these doctrines from the Court's opinion in Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190 (Ala.1978):
Wheeler, 364 So. 2d at 1199.
We hold that neither res judicata nor collateral estoppel applies to bar the instant litigation begun by the co-executors' complaint for construction and instructions. Res judicata, or "claim preclusion," can not apply here because, as noted earlier, the two suits were filed to resolve two entirely different and distinct causes of action.
Frances T. Adams, the sole contestant in her will contest, named, as defendants, all of the heirs and beneficiaries of Marvin L. Tillis's will and Trust and the two co-executors, Jack Carpenter and Lowell Tillis. In that action, Frances T. Adams alleged mental incompetence on the part of Marvin L. Tillis when executing his will so as to render the will null and void; undue influence exercised by Jack Carpenter upon Marvin L. Tillis so as to render Marvin L. Tillis's will null and void; and improper, unethical, unconscionable, and inequitable conduct by Jack Carpenter that rendered the will null and void. The relief sought by Frances Adams in her contest included the setting aside of her father's will; an accounting from the co-executors; and removal of Jack Carpenter as a co-executor and trustee of the Marvin L. Tillis Family Trust.
In the 1988 complaint, the plaintiffs/coexecutors acknowledged the dispute among the Tillis heirs as to the administration of the Trust set up by the will, but they made no allegations of wrongdoing. Rather, the plaintiffs/co-executors sought the court's construction of the will, especially of Article IV (the Trust), and instructions for the proper administration of the will and the Trust. Identity of the causes of action is not present here, and res judicata can not apply to bar the second litigation.
Similarly, we find no basis for the application of the doctrine of collateral estoppel, or "issue preclusion." Following the statement of the law set out in Wheeler, the Campbell Court held that "[f]or collateral estoppel to apply, the issue in the second suit must be identical to the issue involved in the previous suit." Campbell, supra, at 1061-1062. The issue in Frances Adams's will contest case was the validity of the will, while the issue in the instant case is the proper interpretation and application of the terms of the will, specifically of the Trust. Therefore, collateral estoppel can not apply to bar the instant action.
Adams and May next argue that the trial court erred in first admitting the testimony of David Johnston, Marvin Tillis's lawyer, and of Jack Carpenter, Marvin Tillis's C.P.A. and one of the co-executors of the will, and then in finding that the will was unclear and ambiguous. We tend to agree with the premise for this contention (i.e., that the language in question is clear and unambiguous); however, the basic laws of will construction require that we affirm the judgment of the trial court, in keeping with this Court's consistently holding that the rules of will construction "are subordinate to the cardinal rule that the intention of the testator must be ascertained and given effect" and that [the rules] "are useful only in aid, not in contravention, of that controlling purpose." Achelis v. Musgrove, 212 Ala. 47, 49, 101 So. 670 (1924). See, also, Gafford v. Kirby, 512 So. 2d 1356 (Ala.1987); Crippled Children's Foundation v. Cunningham, 346 So. 2d 409 (Ala.1977); and Ullmann v. First National Bank of Mobile, 273 Ala. 154, 137 So. 2d 765 (1961).
Moreover, whether the language of Article IV(F) is clear and unambiguous is an issue we are not called upon to decide, *243 because, in any event, the trial court's ultimate interpretation in favor of the appellees is in keeping both with the evidence relating to the testator's intent and with the testator's intent as expressed within the "four corners" of the instrument itself. Having held that the trial court's construction and interpretation of the provisions of Marvin L. Tillis's will and of the Trust were correct, we conclude, therefore, that the error, if any, in the trial court's admitting the testimony of Johnston and Carpenter was error without injury, their testimony being totally consistent with the interpretation given the Trust by the trial court in its application of the law to the facts of the case.
The plaintiffs argue that any construction of Article IV(F) inconsistent with that found by the trial court would be based on an assumption that Marvin L. Tillis intended to reward Adams and May and to penalize the remaining beneficiaries of the Trust (the other grandchildren). In other words, Adams and May would interpret Article IV(F) to mean that Frances T. Adams's bankruptcy would enhance the trust income shares of her daughters (Adams and May) and that such enhanced shares would be prolonged into the distribution of the Trust's remaining assets (after the death of both Frances T. Adams and Lowell Tillis) to the detriment of the remaining beneficiaries. The plaintiffs assert that such an interpretation was not the intent of Marvin L. Tillis and does not comport with common sense. We agree.
It is the position of Adams and May that the language of IV(F) that reads "notwithstanding any other provision in the Will to the contrary, including any provisions contained within this Article IV," was meant to preclude any distribution of trust assets pursuant to the schedule contained in Article IV(A) if Frances T. Adams were to be in bankruptcy at the time of her father's death. Therefore, say Adams and May, because their mother was indeed in bankruptcy at the time of Marvin L. Tillis's death, Article IV(F) was activated and each of them was to receive an additional 10% of the trust income (Frances T. Adams's 20% share divided "per stirpes") forever.
However, when we construe the abovequoted language from Article IV(F) not merely as a part of Article IV, but, indeed, as a part of the entire will (see Matthews v. Matthews, 477 So. 2d 391 (Ala. 1985)), we find that the intention of the testator was clearly contrary to the position advanced by Adams and May. The Marvin L. Tillis Family Trust was structured so as to make the execution of the two phases of trust distribution dependent upon the lifetimes of Marvin L. Tillis's two children: his son, Lowell, and his daughter, Frances T. Adams. Phase one, distribution of trust income to Lowell and Frances (at 20% each) and to their children (5% each), was to take place while Lowell and Frances were still alive. Phase two, dissolution of the Trust and the distribution of the residuary assets of the Trust, including any accumulated principal and interest, was to take place after both Lowell and Frances were dead, with all remaining beneficiaries to take an equal percentage. This schedule of Trust distributions was set out in Article IV(A) of the will.
It logically follows, then, that paragraph (F) was added to Article IV in order to effect a change in the distribution of Frances T. Adams's 20% share of the trust income for her lifetime. True, the language of paragraph (F) voids any provisions made for Frances T. Adams in the will and then devises her interests to her daughters, Adams and May; however, once devised to the daughters, these interests do not take on a character different from the character they had when they were yet in favor of Frances T. Adams.
Frances T. Adams's 20% trust income interest was for her lifetime and no longer. There is no provision in Article IV for the lifetime income interests of Lowell and Frances to become assets of their estates. Therefore, the devise of Frances T. Adams's income interest to her daughters was for the life of their mother, and no longerthey could receive no greater interest than the interest held by their mother.
*244 With regard to the construction of the will and Trust, our holding and the trial court's judgment declare the intention of Marvin L. Tillis in adding paragraph (F) to Article IV: 1) that no asset of the Marvin L. Tillis Family Trust go to the creditors of his daughter; and 2) that notwithstanding her no longer being a beneficiary or devisee under her father's will, Frances T. Adams's lifetime needs would nevertheless be taken care of by her daughters, who were given their mother's interest in the Trust during her lifetime.
Our careful review of the record has convinced us that the trial court was correct in its application of the law to the facts of this case and that its judgment is consistent with the great weight of the evidence. Clark v. Albertville Nursing Home, Inc., 545 So. 2d 9 (Ala.1989); and Payne v. Carver, 534 So. 2d 566 (Ala. 1988). Therefore, the judgment appealed from is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
[1] Article IX of Marvin Tillis's will provides, in part: "Notwithstanding any and all of the other provisions of this Will, if any beneficiary shall object to the probate of my Will, or in any manner, directly or indirectly, contest or aid in contesting my Will, ..., then he or she shall be deemed to have predeceased me for the purposes of this Will, and any and all provisions herein contained for his or her benefit shall be void and of no effect...."
[2] On May 13, 1987, subsequent to the settlement of the will contest case, David Johnston, Marvin Tillis's lawyer, who had drafted Marvin Tillis's will and the trust provision contained therein, wrote the following letter to the co-executors of the estate:
"During the recent will contest proceedings, there was some discussion as to the meaning of Paragraph F of Article IV of the Last Will and Testament of M.L. Tillis. Apparently, Angela Adams and Beverly Adams took the position ... that any income interest they received as a trust beneficiary as a result of the application of Paragraph F entitled them to a greater interest than their mother, Frances T. Adams, would have received as a trust beneficiary.
"I discussed Paragraph F with Mr. M.L. Tillis when he signed his Will. Mr. Tillis was concerned that any inheritance he would leave [Frances] would go to creditors if she was in bankruptcy or had major creditor problems. The intent of Paragraph F as expressed by Mr. M.L. Tillis to me was to convey to his granddaughters, Angela Adams and Beverly Adams, any rights to property that his daughter, Frances T. Adams, otherwise would have taken had she not been in bankruptcy or had not been subject to material creditor claims. If it was determined by the Executors that Frances T. Adams should not take under the Will through application of Paragraph F of Article IV, then Paragraph F was intended to convey whatever interest in the estate or the trust she had over to her daughters, Angela Adams and Beverly Adams.
"As a trust beneficiary of the Marvin L. Tillis Family Trust created in Article IV of the Will, Frances T. Adams had a right to a percentage of the trust income for her lifetime. She had no rights to trust principal except to the extent that the trustee saw fit to distribute principal to her or to her family for medical needs or financial hardship under Paragraph B of Article IV. Upon her death, the income interest to Frances T. Adams would terminate. Thus, her income interest in the trust was measured by her lifetime. Mr. Tillis desired that her income interest be shifted to her daughters and that perhaps when Frances T. Adams was in a position to receive income, her daughters would give her some out of their increased trust income share. However, Mr. Tillis did not desire that the granddaughters, Angela Adams and Beverly Adams, take a greater interest in the estate or trust than their mother had. Therefore, upon Frances T. Adams's death, the trust income interest would terminate and the income interest of Angela Adams and Beverly Adams in the Family Trust would therefore decrease to that extent with such interest being prorated among all beneficiaries including Angela Adams and Beverly Adams. This is precisely why Paragraph F of Article IV conveys `any rights she may have' to the granddaughters and nothing more.....
"In summary, to give the daughters of Frances T. Adams a greater interest than she had under the Will would defeat the intent of the Testator, Marvin L. Tillis. Any interpretation of Paragraph F of Article IV that conflicts with the above interpretation would do just that. It would further contradict what I intended Paragraph F to mean when I drafted it." | July 13, 1990 |
2bf6b289-51c8-4828-8e41-5637bd6f8e79 | Howard v. Bruno's, Inc. | 567 So. 2d 257 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 257 (1990)
Jeanette HOWARD
v.
BRUNO'S, INC.
89-90.
Supreme Court of Alabama.
June 8, 1990.
Rehearing Denied August 31, 1990.
*258 William H. Saliba, Mobile, for appellant.
Jerry A. McDowell and Walter T. Gilmer, Jr. of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, for appellee.
SHORES, Justice.
The plaintiff, Jeanette Howard, appeals from a summary judgment in favor of the defendant, Bruno's, Inc. Mrs. Howard alleges that she was injured in a slip and fall accident in the defendant's store and that the accident was due to the defendant's negligence.
Mrs. Howard alleges in her complaint that she slipped upon wax or some other dangerous substance. Mrs. Howard filed suit against Bruno's, Inc., on February 1, 1989, claiming that the defendant had not warned her or other customers of the danger created by the substance on the floor. The defendant moved for summary judgment on August 23, 1989. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Bogue v. R & M Grocery, 553 So. 2d 545 (Ala.1989). The "substantial evidence rule" applies to this case, as the complaint was filed after June 11, 1987. See § 12-21-12, Ala.Code 1975.
In Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 63, 173 So. 388, 391 (1937), this Court held:
Thus, "[t]he storekeeper is not an insurer of the customer's safety, but is liable for injury only in the event he negligently fails to use reasonable care in maintaining his premises in a reasonably safe condition." Clayton v. Kroger Co., 455 So. 2d 844, 845 (Ala.1984). The doctrine of res ipsa loquitur is not applicable. Massey v. Allied Products Co., 523 So. 2d 397, 398 (Ala.1988).
In support of its summary judgment motion, the defendant submitted its answers to interrogatories and excerpts from the plaintiff's deposition. Evidence offered in support of or in opposition to a summary judgment motion must conform to Rule 56(e), A.R.Civ.P., and must be admissible at trial. Car Center, Inc. v. Home Indem. Co., 519 So. 2d 1319, 1322 (Ala.1988). The defendant's answers to interrogatories are not admissible, because the answers were not based on the personal knowledge of the person giving the answers, the store manager, but rather were based on what other persons had told him.
*259 The only admissible evidence before the trial court on the motion for summary judgment shows the following: The plaintiff went to the defendant's store at approximately 1:00 a.m. on June 21, 1988, to buy cigarettes and bread; she had had several beers before going to the store; she testified that she had two or three beers before dinner, one with dinner, and one after dinner; she testified that she would not be surprised if someone smelled the odor of alcohol on her breath when she fell; the plaintiff customarily shopped at this grocery store and was familiar with the store's layout; she did not look at the floor of the store before she fell; she saw a man mopping the floor near the produce counter and she did not want to walk where she saw him mopping; thus, she cut through a checkout lane, where she fell; she had not seen anything on the floor, such as a liquid, nor had she looked at the floor to see if there was anything on it, from the time she walked into the store until she fell; and she did not look after she fell; she also did not have any conversation with, or hear any statements by, any of the store employees; and she thought she fell due to wax on the floor because she saw something sticky on her shirt later that evening after she had gotten home. In this respect this case differs from Cox v. Western Supermarkets, Inc., 557 So. 2d 831 (Ala.1989). There, the plaintiff said she felt a wet spot on the seat of her pants immediately after the fall. In the present case, there is no evidence of any breach of duty by the defendant; summary judgment was therefore correctly entered for the defendant. Massey v. Allied Products Co., 523 So. 2d 397 (Ala.1988); Tice v. Tice, 361 So. 2d 1051 (Ala.1978).
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | June 8, 1990 |
825fec8d-fe10-436f-95a1-a5849345afbd | Franklin v. Cannon | 565 So. 2d 119 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 119 (1990)
Belton FRANKLIN
v.
Lisa Charlene CANNON, et al.
88-1084.
Supreme Court of Alabama.
May 25, 1990.
*120 E. L. Brobston, Bessemer, for appellant.
Tom E. Ellis, Birmingham, for appellee Lisa Charlene Cannon.
Burgin H. Kent of Bishop, Colvin & Johnson, Birmingham, for appellee Ronnie Woods.
ALMON, Justice.
This is an appeal from a judgment on jury verdicts for the defendants in a wrongful death action. The plaintiff argues that the trial court allowed one of the defendants to testify regarding an issue of ultimate fact, that the testimony invaded the province of the jury, and that allowing it was error; and that it erred in instructing the jury about disregarding the testimony of an impeached witness, in entering judgment on what the plaintiff says are inconsistent verdicts, and in denying a motion for new trial on the ground that the verdicts were unsupported by the evidence or showed that the jury failed to follow the court's instructions.
On December 17, 1987, a collision occurred between an automobile driven by Lisa Cannon and one driven by Ronnie Woods. Carolyn Franklin was a passenger in the Cannon automobile and died as a result of injuries she suffered in the collision. Both Cannon and Franklin were 17 years old. The collision occurred when Cannon, making a left turn, lost control of her car, which was caused to slide sideways along the lane of oncoming traffic. The passenger side of Cannon's car was toward the oncoming traffic, and Woods's vehicle struck Cannon's car.
Franklin's father brought an action against Cannon and Woods. Woods cross-claimed against Cannon, alleging damage to his automobile. Because Alabama's Guest Statute, Ala.Code 1975, § 32-1-2, precludes the liability of a driver for injuries to a guest passenger except when caused by the driver's willful or wanton conduct, Franklin's claim against Cannon was submitted to the jury only on the issue of wantonness.
Cannon's attorney asked her the following question: "Did you consciously do something or do any act that you felt would endanger the life of your best friend and you?" The court overruled Franklin's objection, and Cannon answered, "No, sir, I didn't." Franklin argues that that question invaded the province of the jury in its ultimate decision of whether the acts of Cannon amounted to wantonness.
*121 Franklin first cites Oxford Iron Co. v. Spradley, 51 Ala. 171 (1871), as holding that a person whose motive or intention is at issue cannot testify as to his motive or intention. That principle was overruled in Starr v. Starr, 293 Ala. 204, 301 So. 2d 78 (1974). See Smith v. Granger, 388 So. 2d 200 (Ala.1980); C. Gamble, McElroy's Alabama Evidence, § 102.07 (3d ed. 1977).
Franklin also cites Broughton v. Kilpatrick, 362 So. 2d 865 (Ala.1978), and Holman v. Brady, 241 Ala. 487, 3 So. 2d 30 (1941), as holding that, in circumstances similar to those presented here, a trial court erred in allowing the defendant driver to give testimony that invaded the province of the jury. Those cases are distinguishable, however, because the questions in those cases involved "material conclusions from detailed facts, which the jury itself should have been allowed to draw from the evidence." Holman, 241 Ala. at 491, 3 So. 2d at 34; Broughton, 362 So. 2d at 868. In both cases, the question regarded the causation of the accidentin essence, whether the defendant's vehicle would have struck the plaintiff's if the plaintiff had not driven into the defendant's path.
Such speculations as to causation are distinguishable from a direct question as to the defendant's intent or mental state. Far from holding that such a question cannot be asked if it relates to an ultimate issue, Starr v. Starr holds that such a question can be asked only if the testimony is material to the issues in the case. The trial court did not err in overruling Franklin's objection to the question at issue.
Franklin next argues that the court erred in giving the following instruction to the jury:
This charge is virtually the same as one approved in Local 204 of Textile Workers Union of America v. Richardson, 245 Ala. 37, 15 So. 2d 578 (1943), and in a long line of cases cited therein, particularly Birmingham Ry. L. & P. Co. v. Glenn, 179 Ala. 263, 60 So. 111 (1912). The instruction in Local 204 regarded contradictory evidence given by the plaintiff, but cases such as Reynolds v. State, 196 Ala. 586, 72 So. 20 (1916), make it clear that the rule applies to all witnesses, not just litigants. The Court of Criminal Appeals has cited with approval the phrasing of the instruction in Local 204. Eslava v. State, 473 So. 2d 1143 (Ala. Crim.App.1985). The words "if any" are not in the instructions in those cases, but if the jury has discretion as to what weight to give the testimony, it can choose to give it no weight at all. Therefore, the addition of the words "if any" in the instruction at issue does not change the meaning of the instruction, and those words are not so emphasized as to create any error.
Franklin cites an instruction that this Court has approved, stating that, if the jury finds that a witness has willfully testified falsely on a material matter, the jury may disregard that witness's testimony entirely, and argues that the instruction given in this case omits the required element of willfulness. See, e.g., Sanders v. Scarvey, 284 Ala. 215, 224 So. 2d 247 (1969); Palmer v. Rucker, 289 Ala. 496, 268 So. 2d 773 (1972). However, Justice Bouldin, writing for the Court in Local 204, dismissed the very same argument:
245 Ala. at 42, 15 So. 2d at 582.
For the foregoing reasons, the trial court did not err in giving the quoted instruction.
*122 Franklin's third and fourth arguments are premised on the assertion that the undisputed evidence showed that Cannon was at least negligent. After reviewing the record, we conclude that the jury could have found, from the evidence, that the collision occurred through no fault of Cannon's, but occurred due to the wet and slippery condition of the road. There was evidence that Cannon was not going fast and that her car lost traction as she attempted to make the turn. When a driver loses control of his vehicle on a road that is slippery with water or ice, the mere fact that his vehicle skids into another driver's lane does not make him liable as a matter of law. Harris v. Brewer, 487 So. 2d 252 (Ala.1986); Guthrie v. McCauley, 376 So. 2d 1373 (Ala.1979); National Biscuit Co. v. Wilson, 256 Ala. 241, 54 So. 2d 492 (1951).
The trial judge heard all of the evidence and observed the testimony of the witnesses as they explained how the accident happened. The judge considered the evidence in light of the arguments on the motion for new trial, arguments now made in Franklin's third and fourth issues, and concluded that the verdict was supported by the evidence and that the motion was due to be denied. "Granting or refusing a motion for new trial rests within the sound discretion of the trial court; the exercise of that discretion carries with it a presumption of correctness which will not be disturbed by this court unless some legal right was abused and the record plainly and palpably shows the trial court was in error." Hill v. Cherry, 379 So. 2d 590, 592 (Ala.1980); Hill v. Sherwood, 488 So. 2d 1357 (Ala.1986). Finding no such abuse of the court's discretion, we affirm the judgment.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | May 25, 1990 |
a43a0884-d6fe-4bb3-8e54-a9549e076fc1 | Ex Parte Floyd | 571 So. 2d 1234 | N/A | Alabama | Alabama Supreme Court | 571 So. 2d 1234 (1990)
Ex parte Tommy FLOYD.
(Re Tommy Floyd v. State).
89-357.
Supreme Court of Alabama.
May 11, 1990.
Rehearing Denied August 17, 1990.
*1235 Christopher Knight, Mobile, and Charles Hollifield, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and John Gibbs and William D. Little, Asst. Attys. Gen., for respondent.
MADDOX, Justice.
The dispositive issue in this review by certiorari is whether the petitioner timely raised his claim that the district attorney impermissibly used peremptory challenges to remove black persons from the venire at his initial trial. In order to address that issue it is necessary to determine whether petitioner's case was "pending on direct appeal" at the time Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), was decided on April 30, 1986. We hold that even though this Court had affirmed petitioner's conviction on direct review and had denied his application for rehearing before Batson was decided, his conviction was nevertheless not "final" within the meaning of that term as defined in Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). Petitioner timely filed a petition for certiorari in the United States Supreme Court to review this Court's decision, and in that petition he raised the Batson issue. Even though that Court did not remand the cause to this Court for a consideration of the Batson issue, we, nevertheless, are of the opinion that the definition of "pending on appeal" contained in a footnote in Griffith[1] is controlling. Consequently, in view of our interpretation of the requirements of Griffith, we are required to hold that the petitioner's Batson claim was still "pending on appeal" on the date Batson was decided.
Tommy Floyd was convicted of the robbery-murder of Elbert Lee Jackson and was sentenced to death. His conviction and sentence were affirmed on direct appeal. Floyd v. State, 486 So. 2d 1309 (Ala. Cr.App.1984), affirmed, Ex parte Floyd, 486 So. 2d 1321 (Ala.1986), cert. denied, 479 U.S. 1101, 107 S. Ct. 1328, 94 L. Ed. 2d 179 (1987). Petitioner, in the trial court, objected to the use by the district attorney of peremptory challenges to strike black prospective jurors from the venire, but he did not raise the denial of his claim on direct appeal to the Court of Criminal Appeals, or in his petition to this Court. The Batson decision was handed down after this Court denied his application for rehearing, and petitioner did assert his juror discrimination claim in the petition for certiorari to the United States Supreme Court, which denied his petition without comment or opinion. 479 U.S. 1101, 107 S. Ct. 1328.
Petitioner filed a petition pursuant to Temporary Rule 20, A.R.Crim.P., in 1987 and a second Rule 20 petition in 1988; they were both denied and his appeals from the two denials were consolidated. In each, he asserted his claim of a Batson violation. The Court of Criminal Appeals affirmed the trial court's denials, 571 So. 2d 1221 (1989), and Floyd's present petition for certiorari to this Court followed. In his petition for certiorari, Floyd has raised a number of issues, but we need to address only the Batson issue.
The dates of Floyd's case are very important. He was convicted in January 1983; at his trial, the district attorney used his *1236 first 11 peremptory challenges to remove all 11 blacks from the jury. Floyd's attorney objected and moved for a mistrial, which was denied. On direct appeal to the Court of Criminal Appeals and to this Court, Floyd did not raise the issue of the district attorney's challenging peremptorily all of the blacks. At that time, of course, Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965), and its virtually insurmountable burden for proving a violation of the Equal Protection Clause were still the applicable law. The Court of Criminal Appeals affirmed Floyd's conviction on May 14, 1985; likewise, this Court affirmed that decision on January 10, 1986, and denied rehearing on February 28, 1986, prior to the decision of the United States Supreme Court in Batson v. Kentucky on April 30, 1986, and prior to this Court's decision in Ex parte Jackson, 516 So. 2d 768 (Ala.1986) (wherein this Court addressed how Batson would be applied retroactively in Alabama), on December 19, 1986.
In Griffith v. Kentucky, the Supreme Court addressed the retroactive application of Batson, and held that Batson would apply to all cases that were still pending on direct appeal and were not "final" at the time Batson was decided.[2]Griffith was decided on January 13, 1987. Floyd's petition for certiorari to the United States Supreme Court was denied on February 23, 1987.[3]
The Court of Criminal Appeals held that Floyd's Batson claim was procedurally barred because he had not raised this issue on direct appeal to that court or to this Court, and the Court of Criminal Appeals also held that any error was not "plain." In view of the fact that this case was awaiting certiorari review by the United States Supreme Court when Batson was decided, and because, in Griffith, the Court applied the term "final," for the purpose of determining whether a defendant's conviction was final for Batson application, to "a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied," 479 U.S. at 321 n. 6, 107 S. Ct. at 712 n. 6, we are constrained to hold that Floyd's conviction was not "final" at the time Batson was decided; thus, the Batson standard applies to him.
Applying Batson, we find it clear that Floyd made a prima facie showing that the district attorney used his peremptory strikes in a racially discriminatory manner.[4]
Because Floyd has made a prima facie showing of purposeful discrimination, we reverse the judgment of the Court of Criminal Appeals and remand this cause to that Court with directions to review his Batson claim in light of what we have said in this opinion. Because of our resolution of this issue, it is unnecessary for us to address any of the other issues raised in Floyd's petition for certiorari.
REVERSED AND REMANDED WITH DIRECTIONS.
*1237 HORNSBY, C.J., and JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
[1] In Griffith, 479 U.S. at 314 n. 6, 107 S. Ct. at 711 n. 6, the Court noted:
"By `final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. See United States v. Johnson, 457 U.S. 537, 542, n. 8 [102 S. Ct. 2579, 2583, n. 8, 73 L. Ed. 2d 202] (1982) (citing Linkletter v. Walker, 381 U.S. 618, 622, n. 5 [85 S. Ct. 1731, 1734, n. 5, 14 L. Ed. 2d 601] (1965))."
[2] As already indicated, the Court in footnote 6 of Griffith, defined "final." 479 U.S. at 314 n. 6, 107 S. Ct. at 712 n. 6.
[3] We do not know why the United States Supreme Court did not address the issue of the prosecution's strikes when Floyd had raised that issue in his petition for certiorari to that Court, and we do not know why the Supreme Court of the United States, having decided Griffith shortly before it denied certiorari in this case, did not cite Griffith and remand the case to this Court. However, we think the clear definition of "final" in Griffith is controlling; in short, we do not consider the Supreme Court's denial of certiorari to be dispositive. The application of Griffith would seem to be especially applicable in a death case, and especially in view of the fact that Batson was applied to one of petitioner's co-defendants. See Acres v. State, 548 So. 2d 459 (Ala.Cr.App.1987), cert. denied, 548 So. 2d 459 (Ala.1989).
[4] At one of the Rule 20 hearings, the district attorney was required to give his explanations for striking all 11 blacks; he gave no particular reasons for striking any of the jurors, although he did consult some records and gave speculative reasons why he would have struck a certain juror if he had known at the time of trial what the records show now. White jurors with the same characteristics as struck black jurors were left on the jury. The Court of Criminal Appeals reversed the conviction of one of Floyd's co-defendants because the district attorney struck all 11 blacks from that defendant's jury as well and could not give any reasons for his strikes. Acres v. State, 548 So. 2d 459 (Ala.Cr.App.1987), cert. denied, 548 So. 2d 459 (Ala.1989). | May 11, 1990 |
19f284c8-5c6f-465d-9520-f8cc1542954d | Leonard v. Beverly | 563 So. 2d 1026 | N/A | Alabama | Alabama Supreme Court | 563 So. 2d 1026 (1990)
Francis L. LEONARD
v.
Minnie BEVERLY and Myrtie Findley as co-executrixes of the Estate of Claude Leonard, deceased.
89-463.
Supreme Court of Alabama.
May 4, 1990.
*1027 Thomas M. Tompkins, Mobile, for appellant.
Bruce N. Wilson of Adams, Adams & Wilson, Grove Hill, for appellees.
HOUSTON, Justice.
This is an appeal from a declaratory judgment entered against Francis L. Leonard, the widow of Claude Leonard, in favor of Minnie Beverly and Myrtie Findley, as co-executrixes of the estate of Claude Leonard, deceased ("Estate"). The question here is whether the trial court erred in finding that a portion of four certificates of deposit was the property of the Estate and not the separate property of Ms. Leonard. We affirm.
Mr. Leonard died on January 5, 1987, survived by his widow and by the children and grandchildren of his deceased brothers and sisters. The Leonards were married in March 1973, but there were no children of that marriage. Mr. Leonard, by his last will and two codicils thereto, left his Estate equally to two trustsone-half to a marital trust for Ms. Leonard with full rights of appointment and one-half to a residuary trust (subject to certain invasions for Ms. Leonard's support if necessary) for the use and benefit of certain of Mr. Leonard's relatives.
The ownership of the following four certificates of deposit made payable to "Claude Leonard or Francis L. Leonard," with no words of survivorship, is the issue on appeal:
The total of these four certificates is $49,733.63. The trial court held that Ms. Leonard owned one-half of that total amount as her separate property as a joint tenant and that the Estate owned the other one-half.
Alabama Code 1975, § 35-4-7, provides, in pertinent part, as follows:
In Sims v. Peoples Bank & Trust Co., 519 So. 2d 512 (Ala.1988), we held that certificates of deposit payable to "[x] or [y]" with no words of survivorship did not confer a right of survivorship. See, also, Farmer v. Farmer, 455 So. 2d 1 (Ala.1984); Ex parte Lovett, 450 So. 2d 116 (Ala.1984). Title to funds in such an account was to be determined according to the intentions of the parties as stated in the instrument that created the tenancy. Johnson v. Sims, 501 So. 2d 453 (Ala.1986).
There is nothing in these four certificates to indicate that survivorship was intended. Consequently, the trial court's holding was in accord with § 35-4-7 and Sims v. Peoples Bank & Trust Co., supra; Johnson v. Sims, supra; Farmer v. Farmer, supra; and Ex parte Lovett, supra. In this case, Ms. Leonard did not attempt to reform the certificates of deposit. These certificates *1028 are complete and unambiguous on their face; therefore, although Ms. Leonard attempted to introduce extrinsic evidence of intent, that evidence was not relevant. See Sims v. Peoples Bank, supra.
Therefore, we find that the trial court correctly determined that, upon Mr. Leonard's death, one-half of the proceeds of the certificates of deposit issued by the Bank of Grove Hill# 7214, # 7749, # 9069, and # 10216became the property of the Estate.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur. | May 4, 1990 |
e663315e-c92a-4cd7-b413-f1f6e228ca63 | Shelby Steel Fabricators, Inc. v. USF & G. INS. CO. | 569 So. 2d 309 | N/A | Alabama | Alabama Supreme Court | 569 So. 2d 309 (1990)
SHELBY STEEL FABRICATORS, INC.
v.
UNITED STATES FIDELITY AND GUARANTY INSURANCE COMPANY.
88-1350.
Supreme Court of Alabama.
May 18, 1990.
Rehearing Denied September 21, 1990.
Frank M. Bainbridge and Bruce F. Rogers of Bainbridge, Mims & Rogers, Birmingham, for appellant.
Allwin E. Horn III and James A. Kee, Jr., Spain, Gillon, Grooms, Blan & Nettles, Birmingham, for appellee.
ADAMS, Justice.
In this appeal from a declaratory judgment action, the sole issue is whether an insurer, after undertaking to defend a potential insured, without reserving its rights to, nevertheless, deny coverage and without keeping that insured apprised of the status of his case, can thereafter successfully deny coverage two years after beginning a defense in the case.
The relevant facts are as follows:
Shelby Steel Fabricators purchased from United States Fidelity and Guaranty Insurance Company ("U.S.F. & G.") a comprehensive general liability policy that contained exclusions to the effect that U.S.F. & G. would not provide coverage for products liability injuries or damages arising *310 after the completion and delivery of the product.
In 1983, Shelby Steel, as a subcontractor for Bailey Construction Company, contracted to fabricate a steel support structure for a slurry makedown feed bin for Moretti-Harrah Marble Company. After delivery of the support structure, Shelby Steel was not involved in its installation and had no other responsibilities with regard to the contract.
In 1984, the bin and the steel support structure collapsed, causing substantial damage. Thereafter, Moretti-Harrah sued the general contractor, the engineering firm, and Shelby Steel. That case was still pending in the circuit court as of the filing of the appeal in this case. When that suit was filed, Shelby Steel notified U.S.F. & G., which hired a law firm in Birmingham to defend Shelby Steel. From March 1985 until July 1987, U.S.F. & G. had exclusive control over Shelby Steel's defense. Although U.S.F. & G. was kept abreast of the status of the lawsuit, Shelby Steel was never consulted in any way regarding its defense. From the record, it appears that a "form" non-waiver agreement was given to Shelby Steel sometime in March 1985. This form, however, was never signed by Shelby Steel, nor was it returned to U.S.F. & G. It also appears from the record that the form was never explained to, or discussed with, Shelby Steel; and U.S.F. & G., according to the deposition of its senior claims adjuster, dispenses these forms as a matter of course whenever a suit of this nature is filed against one of its insureds. In addition, the record also reveals that Shelby Steel's attorney received a copy of a letter from U.S.F. & G. to the law firm hired by U.S.F. & G. to defend Shelby Steel stating that U.S.F. & G. would be handling the case pursuant to a non-waiver agreement. That letter was dated March 5, 1985. At first, the claim against Shelby Steel was treated by the attorneys hired to defend Shelby Steel as a covered claim with no liability. However, in May 1987, Shelby Steel's potential liability was revised to be $600,000 to $750,000. U.S.F. & G., 29 months after undertaking Shelby Steel's defense and two months after receiving a revision as to potential liability, sent Shelby Steel a reservation of rights letter that denied coverage based on the policy exclusions. The facts upon which the decision to deny coverage was made were found in the complaint filed against Shelby Steel. Therefore, the case before us is not one where subsequent discovery revealed a potential problem with coverage.
Initially, we will address the appellant's contention that it did not receive timely notice of the reservation of rights. The appellant first argues that the form non-waiver agreement that was found in its files was never executed by either it or U.S.F. & G. and that it was never notified that it was nevertheless binding. In other words, Shelby Steel argues that the non-waiver agreement, because of the manner in which it was given to Shelby Steel, did not constitute notice. Shelby Steel, instead, concentrates on the notice sent in 1987 and asserts that for two years it had no control over its defense. Thus, Shelby Steel argues, any notice given in 1987 was "too late." Shelby Steel cites Campbell Piping Contractors, Inc. v. Hess Pipeline Co., 342 So. 2d 766 (Ala.1977), and Burnham Shoes, Inc. v. West American Insurance Co., 504 So. 2d 238 (Ala.1987), in support of this position. In Campbell Piping Contractors, we stated that the general rule is that an insurer is obligated to indemnify an insured if it undertakes to defend him without first reserving the right to deny coverage:
"The general rule is stated in the following manner at 38 A.L.R.2d 1151, § 3:
Cases from thirty jurisdictions are said to follow this general rule.
Campbell Piping Contractors, supra, at 770-71. In Burnham Shoes, Inc., supra, this Court reiterated the rule set forth in Campbell Piping Contractors. See Burnham Shoes, Inc., supra, at 241-42.
U.S.F. & G., on the other hand, contends that the non-waiver form that was given to Shelby Steel constituted sufficient notice that U.S.F. & G. was reserving its right to deny coverage, especially when coupled with the copy of a letter from U.S.F. & G. to the attorneys hired to defend Shelby Steel that was sent to Shelby Steel's attorney on March 5, 1985, which is set out in pertinent part below:
The form non-waiver agreement given to Shelby Steel, but apparently never explained, discussed, or signed, reads as follows:
Having considered the evidence before us, we are of the opinion that Shelby Steel was notified through its own attorney's receipt of a copy of a letter sent to the attorneys hired by U.S.F. & G. to defend Shelby Steel by U.S.F. & G. that U.S.F. & G. intended to investigate the case pursuant to a non-waiver agreement. It is not disputed that Shelby Steel's attorney did indeed receive a copy of this correspondence. While Shelby Steel makes much of the fact that it never signed and returned *312 the non-waiver agreement that was given to it by the U.S.F. & G. claims officer, nonetheless the form was given to Shelby Steel. While we consider the notice given to have been meager, at best (the non-waiver agreement alone in this case would have been insufficient considering the manner in which it was given), we are of the opinion that the copy of the correspondence that was sent to Shelby Steel's attorney constituted at least constructive notice to Shelby Steel as to the reservation of rights.
Having considered the issue of notice, however, we must now consider whether anything else was required of U.S.F. & G. in order for it to be able to deny coverage. In determining whether there was another requirement, we must look to the case of L & S Roofing Supply Co. v. St. Paul Fire & Marine Ins. Co., 521 So. 2d 1298 (Ala.1987), wherein Justice Beatty answered a question certified to this Court from the United States District Court for the Northern District of Alabama regarding the responsibility of the insurer for payment of an independent attorney for the insured. In that case it was the contention of the insured that defending a case pursuant to a reservation of rights created a conflict of interest, thereby requiring an insurer to pay for an independent attorney of the insured's choosing. In that case, there was no question that the insured had received notice of the reservation of rights; he merely argued that the insurance company, conducting a defense pursuant to such reservation, automatically had a conflict of interest and, therefore, should be obligated to pay for his independent attorney. We held that when an insurance company undertakes a defense pursuant to a reservation of rights, it does so under an "enhanced obligation of good faith" and that as long as the criteria set forth below are met the insurer will not be required to pay for its insured's independent attorney:
L & S Roofing Supply Co., supra, at 1303, quoting Tank v. State Farm Fire & Casualty Co., 105 Wash. 2d 381, 715 P.2d 1133 (1986) (emphasis added in L & S Roofing Supply Co.). While the case at bar is factually distinguishable from L & S Roofing Supply Co.,[1] we are of the opinion that the insurer, nevertheless, must meet its "enhanced obligation of good faith" in order to deny coverage pursuant to a reservation of rights. This obligation includes, as stated above, keeping the insured apprised of the status of his case. Because Shelby Steel was not kept informed as to the status of its case between the initial notice of the reservation of rights (which we again note was minimal) and U.S.F. & G.'s denial of coverage 29 months later, we conclude that U.S.F. & G. has failed to meet its enhanced obligation to Shelby Steel and, therefore, that it must indemnify Shelby Steel for any liability in the underlying action.
*313 We point out that the obligation now placed on insurance companies is not an onerous one. It merely requires that if an insurer intends to defend a case pursuant to a non-waiver agreement or reservation of rights, then that insurer not only must provide notice to its insured of that fact, but also must keep its insured informed of the status of the case. Such action not only protects the insured, but also ensures that the insurance company has fulfilled its responsibilities toward that insured should a problem regarding coverage later arise.
For the foregoing reasons, the judgment is hereby reversed and the cause is remanded with instructions that the trial court enter judgment in favor of Shelby Steel.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and JONES, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
MADDOX, J., not sitting.
[1] In L & S Roofing Supply Co., the question was not one regarding notice of a reservation of rights. In that case, there was no question that the insured had received notice of the reservation of rightswe merely stated the requirements for an insurer to escape the obligation to pay for independent counsel for the insured. We did not address how the failure to meet the criteria set out in Tank would affect the duty of the insurance company to indemnify the insured should the insured be found liable for a noncovered accident. | May 18, 1990 |
f1206d42-6336-4284-9673-8c075ccb65eb | Craig Const. Co., Inc. v. Hendrix | 568 So. 2d 752 | N/A | Alabama | Alabama Supreme Court | 568 So. 2d 752 (1990)
CRAIG CONSTRUCTION COMPANY, INC.
v.
Bob HENDRIX, d/b/a Glass Service Center.
89-861.
Supreme Court of Alabama.
August 31, 1990.
*753 Mary Anne Westbrook of Gonce, Young & Westbrook, Florence, for appellant.
John R. Benn of Slusher & Benn, Florence, for appellee.
HORNSBY, Chief Justice.
This appeal comes to us following a trial on a cross-claim by Craig Construction Company, Inc. ("Craig"), against Bob Hendrix, d/b/a Glass Service Center ("Hendrix"). Josephine Gist was injured in an accident at South Central Bell Telephone Company's office in Florence, Alabama, on November 15, 1985. As she was leaving the premises, Gist ran into a solid glass panel that was part of the entrance door. She sued several defendants, including Craig. Craig cross-claimed against Hendrix, alleging that Hendrix was bound by the terms of an indemnity agreement that was a part of the contract for installation of the glass doors involved in the Gist accident. Eventually, Gist settled all of her claims against the defendants; Craig then pursued its cross-claim in a separate action against Hendrix.
The suit on Craig's cross-claim was tried pursuant to stipulated facts agreed to by Craig and Hendrix. Those facts were as follows:
The subcontract between Craig and Hendrix included an indemnity agreement in favor of Craig. That clause provided as follows:
The trial court noted that Gist, in her original complaint, had stated two theories of liability against Craig. One claim, the trial court said, was derivative in nature that Craig was liable for Hendrix's failure to put any marker on the glass panel to make it visible. The second claim was that Craig had its own independent duty to keep the work site safe for invitees, and she alleged that this duty arose from the express language of the contract between Craig and the owner. Based on these findings, the trial court stated:
Craig contends that the trial court found that it could not enforce the indemnity agreement set out above absent a jury determination of whether there was a claim *756 subject to indemnification under the contract. Craig argues that the indemnity clause was sufficiently broad to cover any theory of liability under which Craig might suffer a loss. Craig also argues that the indemnity clause was not void as against public policy.
Normally, a trial court's judgment is accorded great weight where that court hears evidence ore tenus. Copeland v. Richardson, 551 So. 2d 353 (Ala.1989); Cale v. City of Bessemer, 393 So. 2d 959 (Ala.1980). However, as in this case, when a trial court sits in judgment on facts that are undisputed, an appellate court will determine whether the trial court misapplied the law to those undisputed facts. Home Indemnity Co. v. Reed Equipment Co., 381 So. 2d 45 (Ala.1980). Furthermore, where the trial court sits without a jury and hears evidence in the form of stipulations, briefs, and writings of the parties, then an appellate court will sit in judgment on the evidence. Hacker v. Carlisle, 388 So. 2d 947 (Ala.1980). See, also, Ex parte British Steel Corp., 426 So. 2d 409 (Ala. 1982). In this case, because the trial court decided this case without a jury and based upon written stipulations, this Court sits in judgment on the evidence.
Initially, we must note that the stipulated facts set out above are devoid of any facts that would indicate that the subcontractor, Hendrix, negligently allowed the glass to become unmarked and not visible to persons entering the South Central Bell offices. The parties stipulated, however, that there was no evidence as to who actually removed the marking tape from the glass plate. On that basis, the trial court was justified in holding that there was no indemnifiable occurrence with respect to any negligence on the part of Hendrix.
Second, we note that language very similar to the above-quoted indemnity provision has been construed by this court on a previous occasion. In Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala.1983), this court stated that the clause at issue was not sufficiently precise to warrant a finding that the parties intended that the subcontractor would hold the general contractor harmless for matters that arose out of the general contractor's own negligence; we stated:
Brown Mechanical, 431 So. 2d at 945. (Emphasis added in Brown Mechanical.)
The language in Brown Mechanical was held not to clearly and unequivocally express an intention that the subcontractor should indemnify the general contractor for injuries that might occur as a result of the general contractor's negligence. At first blush, the rationale of Brown Mechanical would seem to apply in this case. However, the language quoted in Brown Mechanical lacks certain critical language that is present here.
The indemnity agreement at issue in this case stated that the subcontractor, Hendrix, would save harmless Craig for incidents that might arise "whether or not due in whole or in part to conditions, acts or omissions done or permitted by the Contractor or Owner." This same language was included within the indemnity agreement that was at issue in the case of Davis Constructors & Engineers, Inc. v. Hartford *757 Accident & Indemnity Co., 308 F. Supp. 792 (M.D.Ala. 1968). In Davis Constructors, the court stated:
Davis Constructors, 308 F. Supp. at 795.
Even though the indemnity clause in this case is similar to the one in Davis Constructors, there are no facts contained within the stipulations set out above showing that the acts or omissions giving rise to the claim for damages in this case were done "by [or] for and on behalf of" the subcontractor, Hendrix. The indemnity agreement set out above clearly states that the acts or omissions giving rise to the adverse claim must be done "by [or] for and on behalf of" the subcontractor. When one seeks indemnification from another for damages that were caused by his own negligence, strict construction of the indemnity agreement against the contractor is particularly appropriate. Because no facts stated within the stipulations would lead to a conclusion that Hendrix, or someone acting "by [or] for and on behalf of" Hendrix, negligently removed the tape marker from the plate glass, Craig cannot claim indemnity under the terms of the indemnity agreement.
Based upon the foregoing, we conclude that Craig was not entitled to indemnification under the facts of this case even if the event giving rise to the indemnity claim was caused by Craig's negligence. Although we find it unnecessary to follow the trial court's rationale that a jury finding was prerequisite to any recovery by Craig on the indemnity agreement, we note that the trial court reached the appropriate result in concluding that Craig was not entitled to recovery on this theory. Accordingly, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
MADDOX, ALMON, SHORES and STEAGALL, JJ., concur. | August 31, 1990 |
9358bee7-6cdf-41c8-b8f0-b34a951a2ba5 | Phillips v. Anesthesia Services, PC | 565 So. 2d 127 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 127 (1990)
Alfred T. PHILLIPS, as executor of the estate of Rachel Phillips, deceased
v.
ANESTHESIA SERVICES, P.C.
88-1206.
Supreme Court of Alabama.
May 25, 1990.
D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for appellant.
A. Neil Hudgens, Michael S. McGlothren and Thomas H. Nolan, Jr. of Brown, Hudgens, Richardson, Mobile, for appellee.
ADAMS, Justice.
This is a wrongful death case wherein the plaintiff, Alfred T. Phillips, contends that the defendant, Anesthesia Services, P.C., was negligent in the treatment of his wife, Rachel Phillips, and that as a consequence of its negligence she died at Mobile Infirmary. The only issue raised for our review concerns a jury charge given by the trial judge. The pertinent facts of the case are set forth below:
Rachel Phillips was transferred from Springhill Memorial Hospital to Mobile Infirmary in June 1986, while she was having a heart attack. She was given medication in an attempt to stabilize her condition,[1] and a tube was inserted into her throat in order to aid her breathing. Her condition necessitated the performance of balloon angioplasty[2]*128 and, subsequently, an intra-aortic balloon was inserted into the aorta. Dr. Murphy testified that the intra-aortic procedure is extremely extraordinary. Because of her condition, she was placed on a ventilator in intensive care and was carefully monitored. On July 4, 1986, Dr. Gaeton D. Lorino, a consulting physician, removed the endotracheal tube (the tube in her throat) whereupon she began having trouble, including stridor, which Dr. Murphy described as an upper airway obstruction. As a result of her difficulty, Dr. Lorino, deciding to reintubate her and have her placed back on a ventilator, called David Muscat, a certified registered nurse anesthetist employed by Anesthesia Services, P.C., to perform the reintubation.[3] Muscat attempted the procedure, and after he had purportedly completed it, Ms. Phillips went into cardiopulmonary arrest and her heart stopped, but she was subsequently revived after the tube was removed. Muscat then made another tracheal intubation and Ms. Phillips was again placed on the ventilator. She was comatose and died thereafter. Alfred Phillips sued Anesthesia Services, P.C., Dr. Gaeton D. Lorino, Mobile Infirmary, and David Muscat, alleging that the first intubation performed by Muscat was actually an intubation into the esophagus instead of into the trachea, and resulted in brain damage due to lack of oxygen and, eventually, in the death of Rachel Phillips. Summary judgment was entered in favor of Dr. Lorino and Mobile Infirmary. Muscat was voluntarily dismissed at the close of Mr. Phillips's case. Following a judgment based on a jury verdict in favor of Anesthesia Services, Phillips appealed, arguing that the trial court erred in instructing the jury as to what he calls the "sole causation" charge requested by Anesthesia Services. We affirm.
The jury instruction complained of is the following limited supplemental charge:
Mr. Phillips argues that there was no evidence at trial of any negligence on the part of Dr. Lorino and, therefore, he argues, the trial judge only confused the jury by giving it such a charge. Thus, Mr. Phillips contends, we should reverse the judgment and remand the cause for a new trial. Although there was testimony from other doctors that they disagreed with the decision of Dr. Lorino to extubate Rachel Phillips, both parties agree that there was no evidence of negligence on his part offered during the trial. While ordinarily the charge complained of by Phillips might constitute error, in this case we conclude that Phillips invited any error by requesting the following charges at the close of the evidence:
The trial judge charged the jury in accordance with the above requests and further instructed the jury as follows:
The record indicates that counsel for Anesthesia Services objected to these charges and requested that if the judge was going to charge the jury with regard to combined negligence, then a charge with regard to "sole causation" due to the negligence of a third party was likewise appropriate. The trial judge noted the exceptions to the charges, but did not give the requested "sole causation" instruction. Then, after the jury had retired, it returned and requested further instructions with regard to any negligence on the part of Dr. Lorino, as follows:
The trial judge then gave the jury the "sole causation" charge quoted above and gave again the combined negligence instructions initially requested by Mr. Phillips. The jury thereafter returned a verdict in favor of Anesthesia Services, P.C. If anyone placed the issue of Dr. Lorino's negligence before the jury, it was Phillips who did so.
Osborn v. Johns, 468 So. 2d 103, 110 (Ala. 1985), citing Aetna Life Ins. Co. v. Beasley, 272 Ala. 153, 157, 130 So. 2d 178, 182 (1961). Therefore, we conclude that there was no error in the giving of the additional charge.
For the foregoing reasons, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur.
[1] The patient's blood pressure began to fall; her heart stopped; and cardiopulmonary resuscitation became necessary. Dr. Leon Murphy testified that as a result of the heart attack and its complications, Rachel Phillips experienced cardiogenic shock. Dr. Murphy testified that, in his opinion, Ms. Phillips experienced some brain damage due to the fact that several hours passed before sufficient oxygen was restored to her brain.
[2] Balloon angioplasty, according to Dr. Murphy, is the insertion into an artery of a balloon, which is inflated in an attempt to restore blood flow to the heart.
[3] Dr. Murphy testified that, according to Ms. Phillips's chart, approximately 25 minutes elapsed before there was an attempt to reintubate her. | May 25, 1990 |
57b6f9d9-bedb-46c5-a3da-2ae227d4503a | Radiology Associates, PA v. St. Clair Timber Co. | 563 So. 2d 1020 | N/A | Alabama | Alabama Supreme Court | 563 So. 2d 1020 (1990)
RADIOLOGY ASSOCIATES, P.A.
v.
ST. CLAIR TIMBER COMPANY and Employers Casualty Company.
89-27.
Supreme Court of Alabama.
April 27, 1990.
Robert C. Thomas, Jr. and Eason Mitchell, Alabaster, for appellant.
Tom E. Ellis of Kracke, Thompson & Ellis, Birmingham, for appellees.
KENNEDY, Justice.
This is an appeal from the trial court's judgment dismissing the plaintiff's complaint. We affirm.
On June 25, 1986, Phillip Campbell critically injured his spine while cutting pulpwood for Emries Campbell, his father. Phillip Campbell sued Emries Campbell for benefits under the Workmen's Compensation Act, Code 1975, § 25-5-1 et seq., alleging that his injuries arose out of and in the course of his employment. Phillip later amended his complaint to include as a defendant St. Clair Timber Company ("St. Clair Timber"), alleging that for purposes of coverage under the Workmen's Compensation Act he was also an employee of St. Clair Timber. St. Clair Timber denied that it employed Phillip Campbell. However, the St. Clair Circuit Court subsequently entered a consent judgment that stated that Phillip was an employee of St. Clair Timber and that St. Clair Timber would continue to pay for all necessary medical costs that were directly related to the accident. Less than three weeks later, Phillip Campbell died.
On August 3, 1980, Radiology Associates ("Radiology"), one of Phillip Campbell's health care providers, filed suit against St. Clair Timber and Employers Casualty Company ("Employers Casualty"), the issuer of St. Clair Timber's workmen's compensation policy, alleging that St. Clair Timber and Employers Casualty were responsible for the medical bills of Phillip Campbell. The complaint also alleged that St. Clair Timber and Employers Casualty's actions in avoiding payment of these medical expenses constituted "outrage." The case was dismissed for failure of the plaintiff to prosecute, *1021 but was subsequently reinstated. The defendants then moved to dismiss, arguing, inter alia, that there was no contractual relationship between the defendants and the plaintiff and, as a result, that the defendants owed no legal duty to the plaintiff. The trial court, without opinion, granted the motion to dismiss. This appeal followed.[1]
The sole issue that merits review is whether there was any evidence before the trial court that a contract existed between Radiology and St. Clair Timber to pay for Phillip Campbell's medical services.
Section 25-5-77(a) of the Workmen's Compensation Act states that the employer has the right to select the physician for the employee and that if the employee is not satisfied with the physician the employer may select a second and third physician for the employee to see. However, "if the employee obtains medical treatment from a doctor of his choice, the employer will not be held liable for the cost of the treatment"if the employee obtains his own physician without the approval of the employer. Hood, Hardy and Saad, Alabama Workmen's Compensation, § 10-4, pp. 70-71 (1982). In order for Radiology to recover, it must show that either an express or an implied contract to pay for the medical services existed between itself and St. Clair Timber.
Radiology has produced no evidence that St. Clair Timber gave its express consent, either orally or in writing, to Radiology to provide services to Phillip Campbell; nor was there any evidence that St. Clair Timber agreed to pay for those services. Therefore, if a contract existed, it was an implied, and not an express, contract.
We have stated the following regarding an implied-in-fact contract:
Broyles v. Brown Engineering Co., 275 Ala. 35, 38, 151 So. 2d 767, 770 (1963). An implied-in-fact contract may be found from circumstances showing that a mutual agreement had been reached. Id. However, Radiology has presented no circumstantial evidence that St. Clair Timber ever consented to Radiology's treatment of Phillip Campbell. Absent such evidence, this Court is not willing to find that St. Clair Timber or its insurance carrier, Employers Casualty, was contractually bound to Radiology to pay Phillip Campbell's medical bills.
Accordingly, we affirm the judgment dismissing the complaint.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] In its brief, the plaintiff alleges that Employers Casualty Company, the workmen's compensation insurance carrier for St. Clair Timber, had filed a declaratory judgment action in a United States district court in an attempt to escape liability under the policy. The brief also alleges that AMI Brookwood Hospital intervened in the federal court action and was granted a summary judgment against Employers Casualty on the issue of liability for Phillip Campbell's medical bills. However, because this order was not made a part of the record, this Court will not consider the federal court action in its consideration of the present case. | April 27, 1990 |
36b6d567-0012-421e-b3bb-cedb14a42505 | Pieper v. AMERICAN SIGN/OUTDOOR ADV., INC. | 564 So. 2d 49 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 49 (1990)
Glen PIEPER and Industrial Southeast, Inc.
v.
AMERICAN SIGN/OUTDOOR ADVERTISING, INC.
88-1431.
Supreme Court of Alabama.
April 27, 1990.
Slade Watson, Mobile, for appellant.
Chase R. Laurendine, Mobile, for appellee.
*50 ALMON, Justice.
This is an appeal from a declaratory judgment and a permanent injunction entered in favor of American Sign/Outdoor Advertising, Inc. ("American"), and against Glen Pieper and Industrial Southeast, Inc. ("Industrial").
In 1982, American and Industrial entered into a 12-year lease agreement wherein Industrial agreed to lease a roadside billboard to American. That lease did not contain any forfeiture or re-entry provisions in the event of nonpayment or late payment of rent. In February 1988 American began making late and partial rent payments to Industrial. Those payments were accepted each month and, although Industrial repeatedly asked for prompt payment of rent, it made no threats to terminate the lease or to take any other action against American. On July 28, 1988, American received oral and written notice from Industrial that the lease was terminated. Following that purported termination, Industrial contacted some of American's advertisers and attempted to negotiate contracts with them. Over the course of the next two months the parties tried to resolve their dispute, without success. After those negotiations broke down, American filed a complaint seeking a declaration of each party's rights under the lease and seeking injunctive relief.
After a hearing, the trial court issued an order permanently enjoining Industrial from attempting to terminate the lease for any past defaults and from contacting any of the advertisers using the billboard. The court also found that Industrial had improperly terminated the lease and taken possession of the billboard. The court ordered the lease reinstated, contingent on American's paying all past due rents, but gave Industrial the right to terminate the lease in the event that American was more than 10 days late with future rent payments. It is from that judgment that Industrial appeals.
A lessor does not have the right to terminate a lease and re-enter the leased property in the event of nonpayment of rent unless the lease contains provisions to that effect. Hicks v. Longfellow Development Co., 362 So. 2d 219, 221 (Ala.1978). In the absence of such provisions, the lessor's remedy after default is to terminate the lease and demand possession. If that demand is unsuccessful, the lessor must then bring an action of unlawful detainer. Moriarty v. Dziak, 435 So. 2d 35, 36 (Ala. 1983); Ferguson v. Callahan, 262 Ala. 117, 118, 76 So. 2d 856, 857 (1954).
Industrial maintains that it was not required to demand possession because, by the terms of the lease, it never conveyed possession to American, but conveyed only the right to use the billboard. The language upon which it bases its contention is reproduced below:
(Emphasis supplied.) Industrial's attempt to distinguish between the right of possession and the right to use does not create a distinction of any significance to the rule of the cases cited above. The essential purpose of a lease is to create in the tenant a right to exclusive possession of the leased property. See J. Bennett, Law of Landlord and Tenant § 1, at 19 (1939). That right of possession does not, however, diminish the ownership rights retained by the lessor. Thus, although Industrial continued to own the sign, its lease to American required it to follow the proper termination and demand procedures before retaking possession.
Because the lease between American and Industrial contained no forfeiture or re-entry provisions, Industrial was required to use the procedure set out in Moriarty, supra, to regain possession of the billboard, including a proper demand for possession. We therefore agree with the trial court that Industrial's attempt at termination *51 was improper, and we affirm its judgment, including the reinstatement of the lease and the injunction. In the event of future defaults, Industrial must follow the procedure set out in Moriarty in order to properly exercise its rights under the lease.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | April 27, 1990 |
6b48775f-b066-415c-a5a7-281f1e40772c | Pearsall v. State | 564 So. 2d 1017 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 1017 (1990)
Ex parte State of Alabama.
Re Anthony PEARSALL
v.
STATE.
89-324.
Supreme Court of Alabama.
May 11, 1990.
Don Siegelman, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for petitioner.
*1018 Anthony Pearsall, pro se.
STEAGALL, Justice.
Anthony Pearsall filed a petition for writ of habeas corpus, alleging that he was denied due process in a prison disciplinary proceeding that deprived him of "good time" benefits. The trial court granted the State's motion to dismiss the petition. The Court of Criminal Appeals reversed and ordered the issuance of the writ of habeas corpus, directing the State to expunge all references to that proceeding from Pearsall's files. 564 So. 2d 1014 (1989). We granted the writ of certiorari to the Court of Criminal Appeals to review that court's holding.
In its petition, the State contends that the Court of Criminal Appeals went too far in effectively rendering the cause, and that it should have remanded the cause for a new hearing. We agree. Because the error complained of, upon which the Court of Criminal Appeals correctly reversed the judgment of the trial court, was in the nature of a trial error and was not based upon the insufficiency of the State's evidence, Pearsall is entitled to a new hearing under the guidelines established in Ex parte Floyd, 457 So. 2d 961 (Ala.1984); but he is not entitled to have the cause rendered in his favor on appeal.
Therefore, we affirm that part of the Court of Criminal Appeals' judgment reversing the trial court's judgment dismissing Pearsall's petition; we reverse that part of the Court of Criminal Appeals' judgment directing the trial court to issue the writ of habeas corpus and to expunge all references to the disciplinary proceeding; and we remand the cause for an evidentiary hearing to determine the circumstances surrounding Pearsall's termination from his work release job and the reasons for the disciplinary board's failure to honor Pearsall's request to require the presence of a particular witness at his disciplinary hearing.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
HORNSBY C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur. | May 11, 1990 |
5905fdc0-3b43-4cca-8356-0c6d4a3a6977 | Sherman v. Woerner Magnolia Farms, Inc. | 565 So. 2d 601 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 601 (1990)
Iris M. SHERMAN
v.
WOERNER MAGNOLIA FARMS, INC., et al.
88-977.
Supreme Court of Alabama.
May 25, 1990.
Allan R. Chason of Chason & Chason, Bay Minette, for appellant.
Julian B. Brackin of Brackin & Bear, Foley, for appellees.
MADDOX, Justice.
This appeal involves a dispute between the holders of a promissory note and the purchasers of real estate in Baldwin County who executed the note to pay part of the purchase price and secured the note by executing a mortgage on the property. One of the holders of the note died and there arose a disagreement regarding the manner in which installments had been applied *602 on the note and the total amount then owing on the note.
This declaratory judgment action was filed by Woerner Magnolia Farms, Inc., and various members of the Woerner family; they asked the trial court to construe the various documents executed by the parties in connection with the sale by the Shermans to the Woerners, in 1976, of 1400 acres of land. At the time the suit was filed, Ernest Sherman was deceased and his interests were represented by his widow, Iris M. Sherman, and his daughter, Patricia Sherman, who had been appointed coexecutrices. The Shermans answered the complaint but admitted that a justiciable controversy existed between the parties.
The central issue presented by the proceeding concerned the amount of the indebtedness owed by Woerner to Sherman, and in order to determine that issue the court had to decide (1) the date that interest began to accrue on the debt; and (2) the appropriate application of the proceeds arising from the sale of certain timber from the property. A second issue involved the construction of a provision in the mortgage providing for a "moratorium," under the terms of which Woerner was permitted to defer payments of the annual installments due on the note. Specifically, the issue concerning the moratorium involved the repayment schedule of the installments that were deferred under the terms of the moratorium.
The trial court heard evidence on the issues, and all the parties agreed that the method of calculating the current amount due on the indebtedness was not at issue, but the parties disagreed on the date that interest was to begin to accrue.
The evidence heard by the trial court showed that in 1976 Ernest and Iris Sherman conveyed to Edward, Norman, George, and Larry Woerner[1] a 1400-acre farm located in Baldwin County. The Shermans financed $950,000 of the purchase price, as evidenced by a promissory note and a mortgage on the farm securing that note. The terms of the note called for annual installments of $97,814.63, including interest "from date" at six percent per annum, with a final installment on January 1, 1992. The Shermans and the Woerners later executed a moratorium agreement, which amended the promissory note and the mortgage so as to permit the Woerners to defer payment of not more than five installments due under the note. The agreement provided that the deferments could not be taken in successive years and that $30,000 would be paid in lieu of a full payment. The $67,814.63 balance would be deferred and would bear an interest rate of eight percent per annum. The deferred balance was to be "due and payable on January 1, of the year following payment of all other installments due under the terms of the note hereinabove referred to." Ernest Sherman died in 1986, and in connection with the preparation of his estate tax return his accountant contacted the Woerners to determine the amount owed by the Woerners on the debt. The parties then found that they disagreed concerning the date at which interest began to accrue.
The Woerners contended that a mutual mistake was made in the drafting of the promissory note and that the interest should have begun to accrue on January 1, 1977. Mrs. Sherman contended that the plain language of the note indicated that interest was to accrue "from date" of the execution of the promissory note, that is, from August 6, 1976. The trial court found that there had been a mutual mistake in the drafting and reformed the note to provide that interest would begin to accrue on January 1, 1977. During trial the construction of the moratorium became an issue and both parties agreed that the trial judge should construe that document.
After the hearing, the trial court entered the following interlocutory order, which was adopted in the final judgment:
At the outset, we note that the trial court heard testimony concerning the events surrounding the execution of the note and mortgage; therefore, we apply the ore tenus rule, which provides that the trial court's findings of fact will not be disturbed on appeal unless clearly erroneous or manifestly unjust and that every presumption will be indulged in favor of the court's findings. Gulledge v. Frosty Land Foods Int'l, Inc., 414 So. 2d 60 (Ala.1982).
The same presumption does not apply to the trial court's conclusions concerning the legal effect of the moratorium, however, because the terms of the moratorium are incorporated into the writings executed by the parties. In fact, both sides agreed that the trial judge would resolve the moratorium issue based on the language of the documents.
The appellant contends that there was not sufficient credible evidence of a mutual mistake to authorize the trial court to reform the promissory note in order to make its terms consistent with the antecedent contract of sale. We disagree. The general rule is that a court may exercise its equitable powers to reform an instrument where there was a mutual mistake. Pinson v. Veach, 388 So. 2d 964 (Ala. 1980). There was evidence that the error was that of the scrivener, and we note that an error in draftsmanship establishes mutuality of mistake. Fidelity Service Ins. Co. v. A.B. Legg & Sons Burial Ins. Co., 274 Ala. 94, 145 So. 2d 811 (1962). There are restrictions on the power to a court to reform a written instrument, of course, and a party seeking to have an instrument reformed *605 must produce clear, convincing, and satisfactory evidence that the instrument does not express the intent of the parties. Pinson v. Veach, supra; Adams v. Adams, 346 So. 2d 1146 (Ala.1977).
In order to meet their burden, the Woerners introduced into evidence documents executed prior to, or contemporaneously with, the execution of the promissory note; these documents showed that both sides contemplated that interest would begin to accrue on January 1, 1977. The Woerners also introduced the testimony of the promissory note's scrivener, who stated that he believed a mistake was made in the transcription and that the note should have specified that interest would begin to accrue on January 1, 1977. Sherman argues that the introduction of this evidence violated the parol evidence rule and was, therefore, improperly considered by the trial court. We conclude that the court did not err in receiving the evidence in this case.
The parol evidence rule provides that when parties reduce a contract to writing and intend that writing to be the complete contract, no extrinsic evidence of prior or contemporaneous agreements will be admissible to change, alter, or contradict the contractual writing. Shepherd Realty Co. v. Winn-Dixie Montgomery, Inc., 418 So. 2d 871 (Ala.1982); however, extraneous evidence may be admissible to reform an ambiguous instrument. Cole v. Minor, 518 So. 2d 61 (Ala.1987). The question is, therefore, whether the note was ambiguous. At trial, the Woerners argued that the note was ambiguous because of a conflict between the statement regarding the date that interest would accrue and the payment terms. As stated before, interest was to accrue "from date," which commonly means from the date of the writing itself, Walker v. John Hancock Mut. Life Ins. Co., 167 Mass. 188, 45 N.E. 89 (1896). In the context of this case, that would mean that interest would begin to accrue from August 6, 1976; however, the payment clause provided for fixed yearly installments commencing on January 1, 1978, and ending on January 1, 1992, which when computed, did not provide that interest would begin to accrue on August 6, 1976. The payment terms seem to indicate, as determined by the trial judge, that interest would begin accruing on January 1, 1977, as contended by the Woerners.
The appellant contends that the trial court's finding "that neither the promissory note nor the agreement concerning the timber cutting [is] ambiguous," clearly settles the issue of ambiguity, and she complains that, nevertheless, the court allowed the Woerners to introduce evidence concerning the "due date" of the interest. We have to assume that, inasmuch as the trial judge did, in fact, find that there was a mutual mistake made by the parties, he must have found that an ambiguity existed concerning the "due date" of interest, even though in his interlocutory order, which was adopted into the final judgment, he had stated that there was no ambiguity.
We have reviewed the document, and after reviewing it we find that an ambiguity did exist and conclude that the trial judge's finding in his interlocutory order that there was no ambiguity did not refer to the provision concerning the "due date" for interest to accrue; therefore, we conclude that the trial court did not err in permitting the Woerners to present evidence concerning the scrivener's mistake, which evidence clearly indicates that a mistake in the drafting occurred and supports the trial court's finding that the statement regarding the beginning date for the accrual of interest was a mutual mistake.
After reviewing the record and the order of the trial court, and after considering the arguments of the parties, we conclude that the trial court's reformation of the document so as to correctly state the accrual date is due to be affirmed.
On the issue of the moratorium, the trial court found that the language of the agreement provided an extension of 12 months on the term of the note for every moratorium taken. The moratorium agreement provided:
(Emphasis added.) The "note hereinabove referred to" is clearly the original promissory note executed between the parties. That note contained a moratorium provision of its own. Apparently, the moratorium agreement in question here was executed to correct the "ambiguities" of the moratorium agreement in the original note. The moratorium agreement in the original note provided that postponed installments "shall extend the regular annual installments by twelve (12) months." Reading these two agreements together, we conclude that the trial court correctly held that each moratorium taken extended the term of the note by 12 months and that as to this issue also the judgment is due to be affirmed.
The judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and ALMON, ADAMS and STEAGALL, JJ., concur.
[1] Woerner Magnolia Farms, Inc., was apparently formed later by the Woerners to manage the farm. | May 25, 1990 |
7551ec16-9b83-4d0c-9586-66d4478eae97 | Ex Parte Stringfellow | 565 So. 2d 147 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 147 (1990)
Ex parte Donald Earl STRINGFELLOW.
Re Donald Earl Stringfellow
v.
State.
88-1581.
Supreme Court of Alabama.
May 25, 1990.
*148 Margaret Y. Brown, Auburn, for petitioner.
Don Siegelman, Atty. Gen., and Sandra Lewis, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
The defendant, Donald Earl Stringfellow, was convicted of first degree sodomy and was sentenced to life imprisonment. The Court of Criminal Appeals affirmed the conviction. Stringfellow, pro se, then filed a Rule 20, Ala.R.Cr.P.Temp., petition. The petition alleged that the defendant's trial counsel, who had been appointed, had been ineffective and that his ineffectiveness was demonstrated by his causing both the trial court and the jury to learn that the defendant was being investigated for a similar offense in the state of Virginia. The petition also alleged that his trial counsel had failed to call witnesses who would have provided exculpatory testimony. This petition was denied by the circuit court, without the appointment of counsel or an evidentiary hearing.
The Court of Criminal Appeals reversed and held that the two allegations of ineffective counsel cited in the Rule 20 petition were sufficient to justify a hearing. That court remanded the cause for a full evidentiary hearing. Stringfellow v. State, 520 So. 2d 244 (Ala.Cr.App.1987).
The trial court then appointed an attorney to represent the defendant and held a hearing. The trial court then denied the defendant's petition and held that the defendant had not met his burden of showing that his trial counsel was ineffective, as required by Rule 20. The trial court also refused to allow the defendant's attorney to amend the defendant's pro se Rule 20 petition. Without an opinion, the Court of Criminal Appeals affirmed. Stringfellow v. State, 550 So. 2d 1095 (1989). We then issued the writ of certiorari, and by this opinion we affirm in part, reverse in part, and remand.
The issues are whether the trial court erred by denying the defendant's petition regarding the charge of ineffective counsel and whether the court erred by denying defense counsel's request to amend the petition *149 that was originally filed by the defendant.
The trial court made the following rulings on the issue of ineffective counsel:
At the Rule 20 hearing, the defendant's trial counsel admitted that the grandmother of the victim had told him that, after trial, the child admitted to both her mother and her grandmother that she had lied about what the defendant had done. However, he testified that he was not informed of this until a few days after the sentencing hearing. Trial counsel also testified that after the defendant had been sentenced, but before the time limit for filing an appeal had expired, he discussed the possibility of an appeal with the defendant's mother-in-law, but that the mother-in-law subsequently informed him that she had retained another attorney for the appeal.
In order to establish a showing of ineffective counsel, a criminal defendant must show that trial counsel "made errors so serious that counsel was not functioning as the `counsel guaranteed the defendant by the Sixth Amendment.'" He must also show that this deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984).
The evidence before the trial court was conflicting. The defendant's trial counsel insisted that he was not aware of the victim's exculpatory statements prior to the sentencing hearing and that prior to the expiration of the time for appeal the defendant had hired another attorney. Several witnesses testifying for the defendant stated that trial counsel was aware of the statements prior to sentencing. The record, however, does not shed any light on when trial counsel was made aware of the statements.
When alleging ineffective counsel, a criminal defendant bears a substantial burden:
Strickland, at 689, 104 S. Ct. at 2065.
Because the record and the briefs do not clarify the issue of when trial counsel learned of the victim's alleged statements, we conclude that the defendant did not meet the burden of Strickland and, accordingly, we affirm the trial court's ruling with regard to allegations of ineffective counsel.
In the amended Rule 20 petition, the defendant's attorney alleges, inter alia, the following: that the mother and grandmother of the victim took the victim to the district attorney's office so that the child could recant her testimony; that after talking to the child alone, the district attorney returned and told the adults that the child was sticking by her story; that the district attorney told them that the child would not be allowed to leave with them; and that any further action taken by the women would result in their arrest.
Rule 20.7(b), A.R.Crim.P.Temp., states that the trial court may allow the petitioner to amend the proceedings at any point prior to the entry of judgment. Leave to amend a Rule 20 petition is to be "freely granted." Rule 20.7(d). However, the trial court, in its discretion, may deny the petition to amend if it determines that the petition is "not sufficiently specific, is precluded, or fails to state a claim, or that no material issue of fact or law exists" that would allow relief. Rule 20.7(d).
*150 The allegations of prosecutorial misconduct contained in the present amended petition do not fall into any of these categories. Thus, we are faced with a question of first impression as it relates to Rule 20.7(d): Should counsel who has been appointed after a defendant has filed a pro se Rule 20 petition be allowed to amend the petition prior to the hearing?
We believe that that portion of 20.7(d) stating that "[l]eave to amend shall be freely granted" should be accorded particular significance. By allowing the defendant the ability to freely amend the petition, we protect the unknowledgable defendant who files a pro se petition and then has counsel appointed prior to the hearing.
In the present case, the defendant alleged that his trial counsel was ineffective. After the petition was filed, but prior to the hearing, his newly appointed counsel raised, for the first time, allegations of prosecutorial misconduct. If the allegations were proved to be true, then the defendant could conceivably establish that his due process rights and his right to a fair trial had been violated.
Accordingly, we hold that appointed counsel should have been allowed to amend the defendant's petition prior to the hearing. It is important to emphasize that this opinion in no way diminishes the trial court's discretion to deny frivolous amendments. However, we believe that an attorney who is appointed after a defendant has filed a pro se petition should be allowed to amend the petition prior to the hearing if a legitimate issue arises that differs in substance from the allegations made by the defendant in the original petition. Therefore, we affirm in part, reverse in part, and remand the case to the trial court for proceedings not inconsistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | May 25, 1990 |
c5e552f1-ace5-4196-97ba-0c7e347d298b | Sea Calm Shipping Co., SA v. Cooks | 565 So. 2d 212 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 212 (1990)
SEA CALM SHIPPING CO., S.A., et al.
v.
Mattie Mae COOKS, individually and as personal representative of the estate of Theodore Cooks, Sr., deceased.
88-1116.
Supreme Court of Alabama.
June 29, 1990.
*213 Sidney H. Schell of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellant.
Richard F. Pate and J. Wesley Sowell, Mobile, for appellee.
ALMON, Justice.
This is an appeal from a judgment rendered on a jury verdict in favor of Mattie Mae Cooks, individually and as the personal representative of the estate of Theodore Cooks, Sr., and against Sea Calm Shipping Co., S.A. ("Sea Calm"), Sea Traders, S.A., and Hansa Heavy Lift Shipping GmbH ("Hansa")[1] for $500,000 in an admiralty workmen's compensation action brought under 33 U.S.C. § 905 (1986). The issues concern the sufficiency of the evidence, the admission of expert testimony, and the instructions to the jury.
This case arose from an accident that occurred at the Port of Mobile aboard the M/V Uhenbels, a freighter owned by Sea Calm, a Greek corporation, and operated by Sea Traders, another Greek corporation. The Uhenbels was in Mobile to take on its cargo of six 90-foot shrimp boats that were to be transported to Nigeria. Each shrimp boat weighed about 140 tons. Hansa, a West German corporation, had been hired for its experience and expertise in loading bulky and heavy objects aboard freighters like the Uhenbels. Atlantic and Gulf Stevedore Company ("A & G") was hired as stevedore to provide the labor to accomplish the task of loading the shrimp boats aboard the freighter. Theodore Cooks (hereinafter "Cooks") was employed by A & G as a foreman of the "lashing gang."
The shrimp boats were to be secured to cradles that were supposed to be lashed to the deck of the freighter. Those cradles were large steel structures that weighed more than one ton each. The cradles had been placed on board the freighter prior to the loading of the shrimp boats, but had not been secured to the deck. It was Cooks's job to oversee the workers that were lashing the cradles to the deck of the freighter. The cradles were not stored flat on the deck, but were stored in a vertical position, resting on bases that were approximately 16 inches wide.
While Cooks was overseeing the operations of the lashing gang, a large crane that was on board the freighter was being prepared to raise the shrimp boats out of the water and onto the freighter. Although a number of witnesses testified that the normal practice in such situations is to turn the entire loading operation over *214 to the stevedore and his workers, in this case the crane was being operated by Chief Officer Rousitos of the Uhenbels, at the instruction of Port Captain Puchstein, the Hansa employee who was supervising the loading process. While Rousitos was tightening the cables from the crane that were attached to one of the shrimp boats, the Uhenbels listed and two of the unsecured cradles fell to the deck. One of those cradles struck Cooks, injuring him severely.
Soon after the accident, Cooks filed an action against Sea Calm, Sea Traders, Hansa, and other defendants[2] alleging, among other things, that they were negligent and that their negligence was the proximate cause of his injuries. However, 12 days after the accident, Cooks died as a result of the wounds he had received. Following Cooks's death, the action was revived by Mattie Mae Cooks in her individual capacity as Cooks's widow and in her capacity as personal representative of Cooks's estate. That action was brought under 33 U.S.C. § 905 (1986), a provision of the Longshore and Harbor Workers' Compensation Act. This statute provides the exclusive remedy for longshoremen injured or killed during the course of their employment, and it requires the application of comparative negligence concepts. Atkinson v. Gates, McDonald & Co., 665 F. Supp. 516 (S.D.Miss.1987), aff'd, 838 F.2d 808, reh'g denied, 844 F.2d 788 (5th Cir.1988); Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233, reh'g denied, 549 F.2d 203 (5th Cir.1977). When an action is brought in state court for a tort that falls within the jurisdiction of the admiralty laws, the state court must apply the principles of admiralty. Kennedy Engine Co. v. Dog River Marina & Boatworks, Inc., 432 So. 2d 1214, 1215 (Ala.1983).
The jury returned a verdict in Mrs. Cooks's favor in the amount of $500,000, apportioning responsibility among the appellants as follows: Hansa, 80%; Sea Traders, 15%; and Sea Calm, 5%. The trial court rendered a judgment in accordance with that verdict, and Sea Calm, Sea Traders, and Hansa appeal, arguing that the trial court erred by: (1) denying their motions for directed verdict; (2) allowing a safety expert to testify in Mrs. Cooks's behalf; (3) giving certain jury instructions requested by Mrs. Cooks; and (4) refusing to give certain jury instructions requested by the appellants.
A directed verdict in favor of the defendant is proper when there has been a complete absence of proof on a material issue or where there are no controverted questions of fact on which reasonable people could differ.[3]Elder v. E.I. DuPont De Nemours & Co., 479 So. 2d 1243, 1249 (Ala. 1985). The appellants argue that they were entitled to a directed verdict for a number of reasons. First, they contend that Sea Calm, Sea Traders, and Hansa did not have a duty to ensure the safety of longshoremen like Cooks during cargo operations. They contend that that responsibility is borne by the stevedore during such operations. Their argument is based on a decision of the Supreme Court, Scindia Steam & Navigation Co., Ltd. v. De Los Santos, 451 U.S. 156, 101 S. Ct. 1614, 68 L. Ed. 2d 1 (1981). In that opinion, the Court, interpreting § 905(b), stated that the primary responsibility for ensuring the safety of longshoremen is on the stevedore during cargo operations, and the responsibility of the vessel (see the definition of "vessel," infra) is to keep the ship in such a condition that the stevedore will be able, by the exercise of ordinary care, to perform cargo operations with reasonable safety to longshoremen. The vessel also has a duty to warn the stevedore of any hazards that are known or that should be known. Scindia, 451 U.S. at 166-67, 101 S. Ct. at 1622, 68 L. Ed. 2d at 12.
However, the Court also recognized exceptions to that limited duty:
Id. (Emphasis added.) In sum, the vessel can avoid liability for injuries to longshoremen during cargo operations only by turning over all facets of those operations to the stevedore. In the instant case, there was sufficient evidence, in the form of testimony from Port Captain Puchstein, Chief Officer Rousitos, John Scanlan, an employee of A & G, and others, to permit the jury to determine that both Puchstein and Rousitos were actively involved in loading the shrimp boats aboard the Uhenbels and had active control of equipment being used in the cargo operations. Therefore, the vessel's duty to the longshoremen was not the usual limited duty expressed in Scindia, but fell within the "active involvement" and "active control" exceptions expressed in that opinion. Id.
Because of the broad definition of the term "vessel" that is employed in cases of this kind, all of the appellants are exposed to liability if the negligence of their agents proximately caused Cooks's injuries and subsequent death. That definition is found at 33 U.S.C. § 902(21):
(Emphasis added.)
The appellants' second argument is that either Sea Calm or Sea Traders was entitled to a directed verdict because there was no conclusive evidence presented regarding which of those two corporations employed Chief Officer Rousitos. That argument proceeds on the assumption that Rousitos could not be employed by both corporations at the same time. However, it is settled that an agent can be employed by two principals contemporaneously. Palmer v. Chamberlain, 191 F.2d 532, reh'g denied, 191 F.2d 859 (5th Cir.1951); C.D. Chapman & Co. v. G.P. Dowling Hardware Co., 205 Ala. 586, 88 So. 748 (1921). The question of the existence of an agency relationship is ordinarily a question of fact to be decided by the jury. Lawler Mobile Homes, Inc. v. Tarver, 492 So. 2d 297, 304-05 (Ala.1986).
In the instant case there was sufficient evidence to allow the jury to conclude that Rousitos was employed by both Sea Calm and Sea Traders. Documentary evidence, in the form of a charter and a crew list, indicated that Rousitos and the rest of the crew were employed by Sea Traders. George Tsoublis, the captain of the Uhenbels, gave inconsistent testimony, at some times testifying that he and his crew were employed by Sea Calm, and at others, that they were employed by Sea Traders. This evidence provided more than a scintilla of evidence that the crew was employed by both Sea Calm and Sea Traders, and it created a fact question that could be resolved only by the jury. Lawler, supra. The jury's verdict against both Sea Calm and Sea Traders indicates that it found that both corporations employed Rousitos, and such a finding will not be disturbed by this Court unless it appears plainly and palpably wrong. City of Mobile v. Jackson, 474 So. 2d 644 (Ala.1985). In addition, the broad definition of "vessel" under § 902(21) includes both the owner (Sea Calm) and the operator (Sea Traders). That broad definition supports the jury's conclusion that both of those corporations were liable for Rousitos's actions.
Finally, the appellants contend that there was no evidence to support the jury's implicit finding that Puchstein and Rousitos were negligent and that their negligence was the proximate cause of the accident. However, Puchstein's testimony reveals that he supervised the loading and storage of the cradles, had overall supervision of the cargo operations, and supervised Rousitos's operation of the crane. *216 Rousitos's testimony confirmed that he was at the controls of the crane. Testimony from both Puchstein and Rousitos, as well as from two longshoremen that were aboard the ship, established that the cradles fell because the Uhenbels listed suddenly when Rousitos tightened the cables from the crane that was being used to lift the shrimp boats. The degree of that list was in controversy, but Al Marks, a safety expert, testified that a list in excess of 10 degrees was necessary to cause the cradles to fall. Marks also testified that Puchstein and Rousitos should not have started lifting the shrimp boats while the cradles were still unsecured. Marks's testimony was substantially corroborated by Lt. Kevin Kenworthy, of the Coast Guard, who investigated the accident soon after it occurred. That testimony constituted sufficient evidence to allow the jury to conclude that Puchstein and Rousitos were negligent and that their negligence caused the accident.
After reviewing the record, this Court finds that there was not a complete absence of proof regarding any issue raised by Cooks's complaint, and that there were numerous questions of fact that could be properly resolved only by the jury. Therefore, the trial court's denials of the appellants' motions for directed verdict were proper. Elder, supra.
Last, the appellants argue that the trial court committed reversible error by: (1) allowing Alan Marks, a safety expert, to testify concerning Hansa's obligation to perform its work in a manner that would ensure the safety of the longshoremen; and (2) refusing to give certain jury instructions requested by the appellants and giving certain jury instructions requested by Mrs. Cooks. However, the appellants fail to cite any legal authority in support of their arguments on either of those issues. Where an appellant fails to cite any authority for an argument, this Court may affirm the judgment as to those issues, for it is neither this Court's duty nor its function to perform all the legal research for an appellant. Rule 28(a)(5), Ala.R.App.P.; Henderson v. Alabama A & M Univ., 483 So. 2d 392 (Ala.1986). However, a cursory review reveals no palpable abuse of discretion by the trial judge in allowing Marks to testify. Meadows v. Coca-Cola Bottling, Inc., 392 So. 2d 825 (Ala.1981). Furthermore, several of the appellants' objections regarding jury instructions were raised for the first time on appeal. This Court will not hold a trial court to be in error unless that court has been apprised of its alleged error and has been given the opportunity to act thereon. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So. 2d 846 (1958). A review of the objections that were preserved reveals no error.
For the reasons stated above, the judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and ADAMS and STEAGALL, JJ., concur.
MADDOX, J., concurs specially.
MADDOX, Justice (concurring specially).
I concur because I believe that the evidence in this case shows that Captain Puchstein, Hansa's employee, was in charge of this particular loading operation, and that he gave Rousitos, who was at the controls of the crane on this loading, the order when to lift the cargo (the shrimp boat), the incident that the jury could have found caused the list, which in turn caused the cradles to fall.
[1] Although the defendants will be referred to by their corporate names where appropriate, for brevity they will also be referred to as the "appellants."
[2] The appellants are the only defendants that remain parties to this action.
[3] This action was pending on June 11, 1987, and therefore is subject to review under the "scintilla rule." Ala.Code 1975, § 12-21-12. | June 29, 1990 |
1b03cab8-8737-43b7-9483-80d67eb50184 | Bell v. South Cent. Bell | 564 So. 2d 46 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 46 (1990)
Roy Q. BELL
v.
SOUTH CENTRAL BELL.
88-554.
Supreme Court of Alabama.
April 27, 1990.
*47 Michael Quinn of Gordon, Silberman, Wiggins & Childs, Birmingham, for appellant.
Peyton Lacy, Jr. and Sally S. Reilly of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment for the defendant, South Central Bell ("SCB"), in an action arising from the termination of Roy Bell's employment with SCB. The question presented is whether manuals prepared by SCB created an employment contract between Roy and SCB.
SCB hired Roy, a recovering alcoholic, to implement and supervise a program known as the "employee assistance program," which was designed to assist SCB employees who had drinking problems. During the course of his employment with SCB, Roy had access to two publications that, he contends, created a contract of employment under which "problem drinkers" could be fired only under conditions specified therein. The first, entitled "Employees with Drinking Problems, a Management Guide," was distributed to SCB supervisors; it explained SCB's policy toward alcoholism, gave supervisors advice on how to recognize alcoholic employees, and gave guidelines on counseling and disciplining those employees. The second, entitled "Executive Instruction Number 12, Section 6," restated that policy.
In February 1985, while on a business trip, Roy consumed alcohol. After returning to Alabama, Roy admitted to his superiors that he had had a relapse and he was suspended without pay for one week. In addition, a pay raise that had been scheduled for Roy was decreased and delayed. After that suspension, Roy returned to work.
In June 1986, Roy's daughter informed his superiors that he had suffered a second relapse. Roy's superiors discussed that relapse with him and recommended that he seek treatment. They informed Roy that undergoing treatment would have no effect on his job and that the treatment would be paid for by SCB, pursuant to the employee assistance program. Roy checked into a treatment center in Louisville, Kentucky, to undergo treatment. SCB paid for that treatment and continued to pay Roy's salary during his absence.
When Roy returned to work from the treatment center, he was confronted by his superiors and was informed that he could either resign and receive a termination allowance, or be terminated. Roy resigned and then filed an action against SCB, alleging that "Executive Instruction Number 12, Section 6," and "Employees with Drinking Problems, A Management Guide," created an employment contract between him and SCB guaranteeing that he would not be terminated unless SCB followed the procedure set out in those publications for disciplining employees with drinking problems. He contended that his constructive termination breached that contract.
SCB filed a motion for summary judgment, alleging that the documents relied on by Roy were not a "handbook" or, alternatively, if they were a "handbook," that the *48 language contained therein was not definite enough to constitute an offer. The trial court entered a summary judgment for SCB, holding that the documents did not constitute an employment contract. Roy appeals from that judgment.
The rule is settled that a contract of employment at will may be terminated by either party with or without cause or justification. See, e.g., Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala.1984); Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977).
However, this Court has held that an employment-at-will relationship can be modified by provisions in an employee handbook by which the employer promises not to discharge employees except by procedures or for causes set forth in the handbook:
Hoffman-La Roche, Inc. v. Campbell, 512 So. 2d 725, 735 (Ala.1987).
To satisfy the first requirement in the Hoffman-La Roche analysis, "the language used in the handbook must be specific enough to constitute an actual offer rather than a mere general statement of policy." Hoffman-La Roche, 512 So. 2d at 734. Whether the language in the handbook was intended to be an offer is determined by reference to the reasonable meaning of the parties' external and objective manifestations, rather than by their uncommunicated beliefs. Mayo v. Andress, 373 So. 2d 620, 623-24 (Ala.1979).
An examination of some of the language contained in the Management Guide reveals that it was a general statement of SCB's policy toward alcoholism:
(Emphasis added.) The language in the Management Guide indicates that although SCB would make every effort to rehabilitate alcoholic employees, it retained complete discretion regarding the manner in which those employees would be terminated if rehabilitation efforts did not succeed. In fact, one portion of the Management Guide contained the following language:
(Emphasis added.) Because the language contained in the Management Guide and the Executive Instruction was merely a statement of policy, it could not meet the contractual requirement of an offer. Hoffman-La Roche, 512 So. 2d at 731.
In addition, the reasonable meaning that must be attached to the outward manifestations of SCB is that SCB did not intend for the documents relied upon by Roy to constitute an offer that could lead to a unilateral contract. Mayo, supra. The Executive Instructions were stored at a central *49 location and were made available only to management personnel. The Management Guide was intended for use by management personnel only, and it was not generally distributed; instead, managers had to request a copy from the personnel office. In addition, no representations were made to Roy that either of those documents constituted an offer of employment by SCB. Instead, he was told to use the Management Guide as a model for the employee assistance program he was hired to administer.
Because the documents relied on by Roy did not contain language specific enough to constitute an offer, but were only a statement of policy, the threshold requirement of the analysis set out in Hoffman-La Roche, supra, for determining if a handbook creates an employment contract was not met. Therefore, SCB was entitled to a judgment as a matter of law, and its summary judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | April 27, 1990 |
28fd91b1-d190-4df1-b789-4c1b490db044 | Economy Fire & Cas. Co. v. Goar | 564 So. 2d 867 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 867 (1990)
ECONOMY FIRE & CASUALTY COMPANY
v.
Charles GOAR.
89-377.
Supreme Court of Alabama.
April 20, 1990.
Rehearing Denied June 22, 1990.
Steven E. Haddock of Hardwick, Knight & Haddock, Decatur, for appellant.
Byrd R. Latham of Patton, Latham, Legge & Cole, Athens, for appellee.
STEAGALL, Justice.
Defendant/third-party plaintiff, Economy Fire & Casualty Company (hereinafter "Economy"), appeals from the summary judgment entered in favor of the third-party defendant, Charles Goar. In a previous appeal of this case, Economy Fire & Cas. Co. v. Goar, 551 So. 2d 957 (Ala.1989), a summary judgment in favor of Goar was reversed and the case was remanded to the trial court.
On July 9, 1985, Rosella Pugh, a pedestrian, was injured when a cattle trailer dislodged from a vehicle operated by Leroy Craft, an uninsured motorist, and struck her while she was in her front yard. The cattle trailer was owned by Charles Goar and was on loan to Craft at the time of the accident. Pugh was insured by Economy, including uninsured motorist coverage of $40,000.[1]
On May 11, 1987, Pugh sued Economy and Craft. On June 18, 1987, Economy filed a motion to add Goar as a third-party defendant. This motion was granted on June 19, 1987. On September 4, 1987, Goar filed a motion to dismiss, alleging that the *868 complaint failed to state a claim upon which relief could be granted. On October 13, 1987, Goar filed an answer, asserting a general denial; he filed on that same date a motion for summary judgment, alleging that there was no genuine issue of material fact and that he was entitled to a judgment as a matter of law, and supported the motion with his affidavit denying any knowledge of defects or repairs to the trailer. On December 18, 1987, Goar's motion for summary judgment was denied by the trial court. On February 25, 1988, Goar filed a second motion for summary judgment and supported that motion with the pleadings and the answers to interrogatories. On or about March 7, 1988, Goar's second motion for summary judgment was granted. On March 11, 1988, Economy paid its uninsured motorist policy limit of $40,000 to the circuit court clerk. Economy appealed to this Court from the trial court's summary judgment in favor of Goar, and this Court reversed the trial court's summary judgment and remanded the cause. (See Economy Fire & Cas. Co. v. Goar, supra.)
After remand, Goar filed a motion for summary judgment on September 6, 1989, wherein he asserted three grounds: 1) statute of limitations; 2) impermissible contribution among joint tortfeasors; and 3) Economy's lack of standing to file the third-party complaint. Economy, on September 28, 1989, filed a motion and a brief in opposition to Goar's motion for summary judgment. On October 16, 1989, the trial court entered the following order:
Economy appeals from that order.
In entering the summary judgment, the trial court held that Economy did not have standing to bring its third-party complaint against Goar, because Economy had not paid its insured, Pugh. In Smith v. Brownfield, 553 So. 2d 573 (Ala.1989), a cross-defendant argued that the insurer/cross-plaintiff did not have the right of subrogation because there was no evidence that the insurer had paid its insured. We held in Smith, quoting from Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932, 937 (Ala. 1983), that a third-party defendant had no right to object to the insurer's lack of payment, because the right to payment as a prerequisite to the right of subrogation is for the benefit of the insured. Thus, the only party with standing to object to the insurer's lack of payment is the insured. Moreover, Economy paid into the circuit court its policy limit of $40,000. We hold, therefore, that Economy had standing to bring its third-party complaint against Goar.
Goar does not address the standing issue in his brief, but has elected to argue as alternative grounds for his summary judgment those grounds the trial court specifically rejected in its October 17, 1989, order. Goar argues that the applicable statute of limitations bars Economy's third-party suit and that Economy's action seeks contribution among joint tort-feasors. Pursuant to McMillan, Ltd. v. Warrior Drilling & Engineering Co., 512 So. 2d 14 (Ala.1986), we will address these issues.
*869 Goar raised the statute of limitations issue for the first time in his motion for summary judgment filed on September 6, 1989, approximately two years after his initial pleading. Economy objected to Goar's failure to affirmatively plead the statute of limitations defense pursuant to Rule 8(c), A.R.Civ.P. In Wallace v. Alabama Association of Classified School Employees, 463 So. 2d 135, 136-37 (Ala. 1984), this Court held:
(Citations omitted.) Here, like the defendant in Wallace, Goar seeks to raise the affirmative defense of the statute of limitations in his motion for summary judgment. He does so two years after Economy filed its third-party complaint and he filed his motion to dismiss that complaint and answer to that complaint; in both the motion to dismiss and the answer he omitted that defense. We hold that Goar has waived the affirmative defense of the statute of limitations he now asserts as an alternative ground for granting his motion for summary judgment.
Next, Goar argues as an alternative ground for his summary judgment that Economy's complaint seeks contribution among joint tort-feasors. Goar's argument is without merit. Economy, as Pugh's uninsured motorist coverage carrier, stands in Pugh's shoes in regard to its contractual right of subrogation. Economy's claim against Goar concerns the underlying accident, wherein, had Pugh elected, she could have joined Goar. It is Craft who, as an original defendant in the lawsuit by Pugh on the underlying accident, is prohibited by the rule against contribution among joint tort-feasors from bringing suit against Goar, not Economy.
In Olive v. State Farm Mutual Automobile Insurance Co., 456 So. 2d 310 (Ala.Civ. App.1984), the court allowed the original defendant, an uninsured motorist coverage carrier, to bring a third-party action against the tort-feasor.
Accordingly, we reverse the summary judgment in favor of Goar and remand this cause.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, ALMON and ADAMS, JJ., concur.
[1] None of the parties contest that $40,000 was the policy limit. | April 20, 1990 |
85867b2a-53c5-46dd-8e28-dd9d1bf2f12c | Golden Gulf, Inc. v. AmSouth Bank, NA | 565 So. 2d 114 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 114 (1990)
GOLDEN GULF, INC., and Starich, Inc.
v.
AMSOUTH BANK, N.A.
88-1016.
Supreme Court of Alabama.
May 25, 1990.
*115 Michael E. Mark and Chandler Kite Stanard, Mobile, for appellants.
E.B. Peebles III and Edward A. Dean of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee.
ALMON, Justice.
This is an appeal from a summary judgment entered in favor of AmSouth Bank, N.A. ("AmSouth"), and against Golden Gulf, Inc., and Starich, Inc. ("appellants") in the Circuit Court of Mobile County. The issues involve the application of the "Bank Deposits and Collections" chapter of the Commercial Code, particularly § 7-4-211 through -213, Ala.Code 1975, regarding whether a depositary bank has made final or only provisional settlement on an item and regarding its right to charge the item back against its depositor's account when the item is dishonored.
Richard White, Robert Underwood, and Terry Patrick were officers of an Alabama corporation, Golden Gulf.[1] In January 1988, they opened a demand checking account *116 at AmSouth on behalf of Golden Gulf. Shortly before this account was opened, a Utah corporation, Starich, had acquired substantially all of Golden Gulf's assets and had assumed substantially all of its liabilities. Thereafter, on April 21, 1988, Golden Gulf was dissolved and White, Underwood, and Patrick became employees of Starich. However, the Golden Gulf checking account at AmSouth was not closed and remained in use under that corporation's name.
On August 27, 1988, the appellants entered into a subscription agreement wherein Albert M. Rossini agreed to pay Starich $250,000 for 250,000 shares of Starich common stock. Rossini tendered a check, drawn on the Mark Twain Bank in Kansas City, Missouri, to the appellants for that amount, made payable to "Golden Gulf/Starich, Inc." That check was deposited in the Golden Gulf checking account at AmSouth on August 30, 1988. On September 1, 1988, the appellants contacted Am-South to ask if the $250,000 had been "collected." AmSouth answered that the funds had not been collected. On September 2, 1988, the appellants again contacted AmSouth and asked if the funds were "available."[2] AmSouth told the appellants that the funds were available for use. The appellants then requested AmSouth to wire those funds to a bank in New York, for use by Starich in that State. AmSouth complied with that request.
On September 7, 1988, AmSouth received notice from the Mark Twain Bank that Rossini's check would not be paid, due to nonsufficient funds. On September 8, 1988, AmSouth notified the appellants that the check had been dishonored. After receiving that notice the appellants failed to take up the check, and AmSouth thereafter revoked the credit it had given the Golden Gulf account, asserting that the credit had been only provisional. AmSouth then charged back to that account the amount of the provisional credit, resulting in an overdraft of $248,965.69.
On October 13, 1988, AmSouth filed a complaint against the appellants, alleging that they were liable for the amount of the overdraft in accordance with Ala.Code 1975, §§ 7-4-207 and 7-4-212. AmSouth filed a motion for summary judgment. After a hearing, the Circuit Court of Mobile County entered a summary judgment for AmSouth, awarding it $257,641.97. It is from that judgment that this appeal arises. The appellants contend that summary judgment was improper because they say there was a dispute as to whether AmSouth's answer that the funds were available constituted notice that a final settlement had been made. AmSouth contends that only a provisional settlement had been made and that its actions were consistent with common banking practice regarding provisional credits. In addition, the appellants contend that AmSouth failed to notify them of the dishonor of Rossini's check by the "midnight deadline," as required by Ala.Code 1975, § 7-4-212, that it was contributorily negligent in that failure, and that this contributory negligence precludes any recovery by AmSouth.
The first issue is whether AmSouth's responses to the appellants' inquiries gave rise to a fact question as to the "provisional" or "final" nature of the settlement extended to the appellants' account. As will be shown below, there is a presumption, under Alabama's commercial code, that the initial settlements extended by banks are provisional. If no evidence to rebut that presumption was before the trial court, AmSouth's right to charge back the amount credited to the appellants' account would be unaffected, and the summary judgment in favor of AmSouth would be proper. In order to resolve this issue, it is necessary to discuss the distinction between "provisional" and "final" settlements.
*117 Upon receipt of a check, a depositary bank often extends a "provisional" credit to its customer's account, while reserving the right to charge back that amount if the check is dishonored. This credit allows the customer to make use of the funds represented by the deposited check. The prevalence of this practice is recognized in the official comment to § 7-4-212: "Under current bank practice, in a major portion of cases banks make provisional settlement for items when they are first received and then await subsequent determination of whether the item will be finally paid." As stated above, there is a presumption that the first settlement given for an item is provisional. That presumption is set out in § 7-4-201, reproduced in relevant part below:
The settlement or credit extended will ordinarily remain provisional until the depositary bank receives payment from the payor bank. See B. Clark, The Law of Bank Deposits, Collections and Credit Cards § 4.9, at 4-60 through -61 (1981). However, other actions by the payor bank or collecting bank may constitute final settlement. These actions are listed in § 7-4-213, reproduced below:
(Emphasis added.) It is undisputed that the payor bank, in this case the Mark Twain Bank, refused to pay the check. In addition, it is clear that neither AmSouth nor the Mark Twain Bank took any of the actions that trigger final settlement listed in § 7-4-213.
The appellants point to their evidence that AmSouth told them on September 2, 1988, that the funds were available for their use and argue that AmSouth thereby represented that the check had been paid. They argue further that that representation was equivalent to saying that a final settlement had been made. However, this argument is a misapprehension of the function and nature of provisional settlements. The mere availability of the funds represented by the check does not, by itself, confirm that the check has been finally paid. Instead, the bank allows its customer to make use of the funds while it awaits "subsequent determination of whether the item will be finally paid." Official comment to § 7-4-212. That is the very essence of provisional settlements.
Although the appellants repeatedly assert that AmSouth told them that the funds had been collected, and argue that, therefore, a final settlement had been made, they do not direct this Court's attention to any evidence supporting that assertion. After carefully reviewing the record, this Court has been unable to find any such evidence.[3] Rather, the evidence indicates that AmSouth told the appellants on September 1 and 2 that the funds had not been collected, but told them on September 2 that the funds were available. When Am-South filed its motion for summary judgment, it also filed the affidavit of Tom Parks, a vice-president of AmSouth and manager of the bank's Fairhope, Alabama, branch. In his affidavit, Parks stated that AmSouth gave the appellants a provisional, not a final, settlement in the amount of $250,000 upon receiving the appellants' deposit.
When a party opposing a motion for summary judgment fails to offer an affidavit or other evidence that contradicts the evidence presented by the moving party, the trial court must consider that evidence as uncontradicted. Eason v. Middleton, 398 So. 2d 245, 248 (Ala.1981). Because the appellants failed to introduce evidence that contradicted Parks's affidavit, or to otherwise rebut the presumption that the settlement extended was provisional, the trial court had to accept AmSouth's assertion that the settlement was provisional. This Court finds the trial court's determination on this point to be proper and in accordance with "current bank practice," as recognized in the official comment to § 7-4-212, quoted above.
Section 7-4-212 gives collecting banks the right to charge back amounts credited to their customers' accounts if the deposit that is the basis of a provisional settlement is subsequently dishonored or suspended. The relevant portions of that section are set out below:
(Emphasis added.)
Because the settlement involved in this case was provisional, AmSouth was entitled to charge back the amount of the dishonored check to the appellants' account. See Dozier v. First Alabama Bank of Montgomery, 363 So. 2d 781 (Ala.Civ.App.1978). The only requirement is that the bank notify its customer of the dishonor "[b]y its midnight deadline or within a longer reasonable time after it learns the facts." The term "midnight deadline" is defined in § 7-4-104(1)(h), set out below:
Although the appellants argue that Am-South failed to notify them by the midnight deadline, they do not contest AmSouth's assertion that it received notice of the dishonor on September 7, 1988, and notified them of the dishonor on September 8, 1988. The appellants' argument on this point is unclear, and this Court can only assume that they are contending that AmSouth was obligated to notify them of the dishonor by midnight of the day following the deposit. If this is, in fact, the appellants' position, it is without merit. Both § 7-4-104 and § 7-4-212 state that the "midnight deadline" is midnight of the banking day following the banking day on which the bank receives the relevant item or notice, or after it learns the facts. In the instant case, the relevant midnight deadline was midnight of the banking day after the banking day on which AmSouth was notified of the dishonor. AmSouth notified the appellants before that midnight deadline.
After a careful review of the record, this Court finds no error. Therefore, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] White, Underwood, and Patrick were named as defendants in the original complaint. However, summary judgment was entered only against Golden Gulf and Starich. White, underwood, and Patrick are not parties to this appeal. The judgment against Golden Gulf and Starich was made final pursuant to Rule 54(b), A.R. Civ.P.
[2] The appellants' Exhibit 3 to their depositions, a document signed by the "Chief Financial Officer" of "Starich, Inc., d/b/a Golden Gulf," indicated that they asked on September 1 if the funds had been collected and on September 2 if the funds were available (our emphasis). In fact, Patrick stated in his deposition that he made the deposit on August 30 and that on September 2, he asked the same teller if the funds had been collected, and the teller answered "No."
[3] In their brief in opposition to AmSouth's motion for summary judgment, the appellants stated that their attached affidavits would reveal a question of fact. However, no such affidavits are contained in the record, and there is no entry for them on the circuit court's case action summary sheet. | May 25, 1990 |
b0d60e16-d16c-46ad-8872-7050fec582fa | Garvin v. Shewbart | 564 So. 2d 428 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 428 (1990)
Gwenetta L. GARVIN
v.
V.A. SHEWBART, et al.
88-789.
Supreme Court of Alabama.
May 11, 1990.
*429 Earl V. Johnson, Andalusia, for appellant.
Nicholas T. Braswell III of Rushton, Stakely, Johnston & Garrett, Montgomery, for appellees.
ALMON, Justice.
Gwenetta L. Garvin appeals to this Court for a reversal of a summary judgment entered in favor of defendants V.A. Shewbart, CNA Insurance Companies, a corporation, and Jr. Food Stores of West Florida, Inc. (collectively referred to as "CNA"), on her complaint alleging fraud and the tort of outrageous conduct. This action derives from an injury to her back that Garvin suffered at her workplace in 1981. Garvin filed a workmen's compensation claim that was upheld in Jr. Food Stores of West Florida, Inc. v. Garvin, 447 So. 2d 794 (Ala. Civ.App.1984). She also filed an outrage claim, prior to the one at issue here, and the dismissal of that claim was reversed in Garvin v. Shewbart, 442 So. 2d 80 (Ala. 1983).[1] In March 1985 she entered into a settlement whereby she accepted a lump-sum payment of workmen's compensation benefits and dismissed her then-pending claim of outrage and CNA agreed to continue to pay her authorized medical expenses. She now claims that CNA had no intention of continuing to pay her medical expenses and that, after the settlement, CNA engaged in outrageous conduct in regard to her attempts to obtain further medical treatment of her injury.
Shortly after Garvin's injury, two surgical operations were performed on her back. As early as August 1983 it became apparent that Garvin would need a third operation to remove a bone chip from her back. See Jr. Food Stores, supra, at 794. The neurosurgeon who had performed the first two operations, Dr. Eyster, recommended the third operation, but, in May or June 1984, she went to another doctor, Dr. Hackman, for a second opinion. CNA refused to pay for any examinations or treatment by Dr. Hackman, but insisted on its right, pursuant to Ala.Code 1975, § 25-5-77, to select a physician. On July 10, 1984, CNA authorized Garvin to see Dr. Barnes, an orthopedic specialist. CNA later made her an appointment with Dr. Barnes for late July or early August and informed her that *430 he would be the only authorized treating physician. When she arrived for that appointment, however, Dr. Barnes refused to examine her without first obtaining her medical records.
Her attorney from that period, Allen Edward Cook, executed an affidavit and attached his correspondence with CNA regarding her attempts to obtain a second opinion and further treatment. In a letter of December 5, 1984, Cook related that, during Garvin's visit to Dr. Barnes in August, Dr. Barnes's office had telephoned CNA to obtain her medical records and that CNA had promised to send them. That letter continued:
Garvin continued to try to see Dr. Barnes, who continued to tell her that he did not have her records. Her attorney continued to correspond with CNA, which asserted that it had sent the records to Dr. Barnes and continued to insist on her seeing him. Shewbart wrote the following letter to Cook on July 25, 1985:
On August 19, Cook responded by saying that Garvin had continued to talk to people in Dr. Barnes's office, and that they had told her "that they did not know when Dr. Barnes would be able to see her." Cook requested that another doctor be selected for Garvin to see.
On October 21, 1985, Shewbart responded with the statement that CNA had selected Dr. G. Robert Burton. When Garvin saw Dr. Burton, he told her that he did not do back surgery. There is also some evidence that, during this time, CNA stopped paying for prescription medications that Garvin was taking due to her back injury.
In November, Cook withdrew as her attorney, advising her that he might be needed as a witness if she had to file suit against CNA again. After further unsuccessful attempts to obtain authorized examination or treatment, Garvin filed this action on August 19, 1986.[2]
The trial court entered summary judgment for CNA on the fraud count on the ground that it was barred by the exclusive-remedy provisions of the Workmen's Compensation Act, Ala.Code 1975, §§ 25-5-52 and -53, and on the outrage count on the following basis:
The principle that a fraud claim against an employer in circumstances connected with a workmen's compensation claim is necessarily barred by the exclusive-remedy *431 provisions of the Workmen's Compensation Act was overruled in Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So. 2d 90 (Ala. 1989). The Court emphasized in Lowman, however, that a mere delay in payment would not support a separate tort claim, but that a remedy for such delays is provided in § 25-5-59; that only intentional frauds would be actionable outside of the exclusive-remedy provision; and that a higher burden of proof would be imposed "in accommodation to the exclusivity provisions of the Act," i.e., "the plaintiff must present evidence that, if accepted and believed by the jury, would qualify as clear and convincing proof of fraud." Id., at 95.
Garvin's burden on her fraud claim is heightened further by the fact that she is alleging promissory fraud, which requires proof that the defendant, at the time the promise was made, intended not to perform. Green Tree Acceptance, Inc. v. Doan, 529 So. 2d 201 (Ala.1988); Purcell Co. v. Spriggs Enterprises, Inc., 431 So. 2d 515 (Ala.1983). She argues that CNA's treatment of her claim from the time Shewbart became responsible for it provides evidence of CNA's intent to pay as little as possible on her claim without regard to the merits of the claim, and that her evidence in this regard and in regard to her efforts to obtain a second opinion on further surgery support an inference that CNA, at the time of the settlement in which it agreed to continue medical coverage, had an intent not to provide such coverage.
The evidence submitted on the summary judgment motion did not meet the strict "clear and convincing" test of Lowman. The evidence tends at least as much to show that Garvin's difficulties in obtaining further medical care were the result of ordinary delays, misunderstandings, and breakdowns in communication as it does to show that her difficulties were the result of any deliberate attempt by CNA to deny her further medical care; therefore, the evidence cannot be said to support the fraud claim by clear and convincing proof. There is no clear and convincing evidence of fraudulent intent in the record, and the summary judgment on that count is due to be affirmed.
The summary judgment was also correct on the outrage count. The tort of outrage encompasses only "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 Serv. Co. v. Inmon, 394 So. 2d 361, 365 (Ala.1980). See also Busby v. Truswal Systems Corp., 551 So. 2d 322 (Ala.1989); National Security Fire & Casualty Co. v. Bowen, 447 So. 2d 133 (Ala.1983). None of the alleged conduct meets this test. CNA was doing "no more than [insisting] upon [its] legal rights in a permissible way," Inmon, at 368 (citation omitted), for which it cannot be held liable in an action based on outrage.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
All of the Justices concur.
[1] Overruled on other grounds, Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So. 2d 90 (Ala. 1989).
[2] Since that time, Garvin has had her third back operation and the bone chip was removed. | May 11, 1990 |
b40888da-0774-402b-8852-f318f13c2210 | Stevens v. Chesteen | 561 So. 2d 1100 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1100 (1990)
A.C. STEVENS, et al.
v.
Donnie CHESTEEN.
89-129.
Supreme Court of Alabama.
April 12, 1990.
*1101 Billy Joe Sheffield, Dothan, for appellants.
Charles W. Fleming, Jr., Geneva, for appellee.
HORNSBY, Chief Justice.
The plaintiffs, Timothy M. Stevens, 14 years of age, suing by and through his father and next friend, A.C. Stevens; and A.C. Stevens, individually, appeal to this court following the Geneva County Circuit Court's entry of a summary judgment in favor of the defendant, Donnie Chesteen.
The Stevenses sought to recover damages based on injuries suffered by Timothy Stevens as a result of allegedly negligent or wanton conduct of the defendant, Donnie Chesteen.
Timothy Stevens was injured in a motorcycle accident on or about December 23, 1987. His injuries required that he undergo surgery to repair damage to his left knee. The doctor who performed the surgery allegedly told Timothy and the officials of the Geneva school system that Timothy was to be restricted from strenuous or hazardous activity that could result in further injury to his knee.
In his brief to this Court, Timothy Stevens argues that on or about February 11, 1988, he was instructed by Chesteen, his physical education teacher, to go to the Geneva High School football field with his physical education class. Timothy had been excused from participation in physical education classes and this fact was allegedly known to Chesteen. While at the football field, Timothy did not engage in the game of touch football that was being played, but stood on the sidelines and watched the action on the field. The evidence indicates that while Timothy was standing on the sidelines, his attention was diverted to some commotion in the stands, and he did not see the players that were coming toward him from the field of play. While chasing a ball carrier, one of the players ran into Timothy and severely reinjured his knee. This reinjury necessitated further treatment and surgery.
Timothy further alleges that after the class was sent to the football field, he did not see Chesteen. Chesteen, however, disputes this account and asserts that he was present when the injury occurred. In opposition to Chesteen's motion for summary judgment, Timothy produced the separate affidavits of two students who were present at the time of his injury. These two students stated that Chesteen was not present on the football field at the time of the injury, but was in a storage shed on the visitors' side of the field. One of the students stated that he went to the fence at the edge of the field and called to Chesteen, but that Chesteen did not hear him until he called a second time.
Timothy was carried to the coach's office by several students. He waited there until his mother arrived and transported him to the hospital.
In order for the trial court to properly enter summary judgment, there must be no question of material fact and the moving party must be entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. The trial court entered a summary judgment for Chesteen but stated no reason for entering the summary judgment. The complaint was filed on March 30, 1989; thus, the "substantial evidence" rule applies. Code 1975, § 12-21-12 (Cum.Supp.1989).
Chesteen argues that Timothy's complaint alleged "negligence and improper supervision... by ordering [Timothy] against doctor's orders to participate in physical education class and by forcing plaintiff to *1102 go to a hazardous area." Chesteen points to Timothy's deposition testimony and argues that that testimony itself contradicts any claim that Chesteen "ordered" Timothy to participate in physical education or that Timothy was "forced" to go to a dangerous area. Timothy's deposition testimony shows that he was aware that he was not to participate in physical education class and that Chesteen was also aware of that restriction and had excused Timothy from participation. Timothy, in fact, was not participating in the class at the time of his injury, but was standing off to one side of the football field looking up in the stands.
Timothy argues that his complaint alleged negligent supervision and, alternatively, that Timothy was "ordered" to participate in class and to go to a hazardous area. Count I of Timothy's complaint is as follows:
The essence of the complaint is that Chesteen was guilty of negligence either in failing to provide proper supervision for the class or in ordering Timothy to participate. We must agree with the defendant's argument that Timothy's deposition negates any question of negligent supervision. The deposition testimony cited by the defendant shows that Chesteen did not force Timothy to participate in the physical education class at which he was injured. In fact, Timothy's deposition testimony indicates that he was excused from participation in the class and that he was not a participant at the time of the accident. Moreover, Timothy stated that he felt that he was a safe distance away from the action on the field before he was injured.
Both sides presented affidavits in support of their positions at the hearing on the motion for summary judgment. Chesteen presented the affidavits of two Geneva County school officials who indicated that Chesteen, an employee of the Geneva County school system, had not acted negligently. Timothy offered affidavits of two fellow students, both of whom alleged that Chesteen was not with the class at the time of the injury. Timothy's affidavits were not timely filed. It does not, however, appear in the record that the defendant ever objected to their being produced on the date of the hearing on the motion for summary judgment. It follows that this timeliness issue is waived at this point. Hutchins v. State Farm Mutual Automobile Ins. Co., 436 So. 2d 819 (Ala.1983).
There are few Alabama cases setting out the duty of a physical education teacher to adequately and reasonably supervise his charges. Best v. Houtz, 541 So. 2d 8 (Ala.1989), does create a duty of "reasonable supervision" but does not define that duty. Thus, we will examine the decisions of other states.
In the case of Banks v. Terrebonne Parish School Board, 339 So. 2d 1295 (La.App. 1976), the court was faced with a negligence suit against a physical education teacher. The injury in Banks occurred as a result of "unauthorized" tumbling performed by students before the beginning of the class. The teacher was in the gymnasium at the time but was some distance away collecting valuables from students who were getting dressed for class. It does not appear that the teacher was aware of the "unauthorized" tumbling going on at that time. The court stated:
*1103 "The court in McDonald v. Terrebonne Parish School Board, 253 So. 2d 558, 562 (La.App. 1st Cir.1971), writ ref. 260 La. 128, 255 So. 2d 353 (1971) commented:
Banks, 339 So. 2d at 1297. The court also stated that the mere fact that an accident occurred is not evidence of negligence, and that negligence in this type of case will not be found "by inference." Id. at 1297.
In a similar case, the Supreme Court of Louisiana found that a physical education teacher had not acted negligently. See Wilkinson v. Hartford Accident & Indemnity Co., 411 So. 2d 22 (La.1982) (teacher not present when physical education students engaged in an unauthorized footrace resulting in injury).
After reviewing the depositions, affidavits, and other materials before the trial court at the time of submission of the motion for summary judgment, we are satisfied that the trial court properly entered the summary judgment in favor of the defendant. In Best v. Houtz, 541 So. 2d 8 (Ala.1989), it was held that a physical education teacher has a duty of "reasonable supervision." We find that the affidavits produced by Timothy do not show that Chesteen breached any duty that may have been owed to him. Cf. Best v. Houtz, supra (summary judgment upheld in favor of teacher in negligence case). In the case of Sheehan v. St. Peter's Catholic School, 291 Minn. 1, 188 N.W.2d 868 (1971), the Minnesota Supreme Court stated that "recovery [is permitted] if there is evidence from which a jury could find that supervision would probably have prevented the accident." It has also been recognized that a physical education teacher has a duty to use "reasonable care" to prevent injuries and to adequately and properly supervise his students' activities. Luce v. Board of Education of Village of Johnson City, 2 A.D.2d 502, 157 N.Y.S.2d 123 (1956).
The question whether certain conduct amounts to "reasonable supervision" and whether supervision would have prevented the injury complained of is, of course, a question that must be answered on a case by case basis. However, it must always be remembered that the reality of school life is such that a teacher can not possibly be expected to personally supervise each student in his charge at every moment of the school day. Moreover, Timothy was engaged in a common practice in standing on the sidelines and watching the game progress.
The affidavits and depositions in the record clearly indicate that Timothy was not participating in a physical education class and was not on the playing field either before or at the time the accident occurred. There is no evidence to indicate that Chesteen forced Timothy to go to the field or to the stadium. The affidavits produced by Chesteen, on the other hand, tend to indicate that Chesteen did not act negligently in his supervision of the class. Timothy did not produce any evidence that had Chesteen been present, if in fact he was not, the accident would not have occurred. See, Sheehan, supra. Even if Chesteen had been present, this accident could have occurred in the same manner.
On these facts, where there is no other evidence negligence, we can not hold that Chesteen's mere absence from class amounts to a breach of the duty of reasonable supervision. Teenagers like Timothy often engage in "pick-up" football games that are completely unsupervised. This case involved a "touch" football game, and not a tackle game, thus making violent collisions involving bystanders on the sidelines unlikely. Moreover, we note that Timothy was not a child of tender years and, as a reasonable person, had a duty to maintain a certain vigilance for his own safety and well being. Chambers v. Milner Coal & Ry., 143 Ala. 255, 39 So. 170 (1905).
Based upon the foregoing, we hold that the trial court properly entered the summary judgment for Chesteen. That judgment is affirmed.
AFFIRMED.
*1104 MADDOX, JONES, ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | April 12, 1990 |
f45059b7-972a-4de4-b8c8-99655782151e | Turner v. Clutts | 565 So. 2d 92 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 92 (1990)
James Rowe TURNER, et al.
v.
Wayne B. CLUTTS and Marlis B. Clutts.
89-543.
Supreme Court of Alabama.
May 4, 1990.
George K. Williams, Huntsville, for appellants.
Wayne B. Clutts and Marlis B. Clutts, pro se.
HOUSTON, Justice.
James Rowe Turner, Ronald G. Vaughn, Ann F. Vaughn, William J. Fiorentino, and Judith Fiorentino appeal from a judgment in favor of Wayne B. Clutts and Marlis B. Clutts declaring that the Cluttses' property is not subject to certain restrictive covenants. We reverse and remand.
The pertinent facts were stipulated: On May 12, 1979, J.T.S. Lands, Inc., sold by auction lots 1 through 13 of the Schrimsher Estates subdivision ("the subdivision"). Ben Porter purchased lots 6 and 8 (each consisting of 3.31 acres) for $8,250 and $7,700 respectively; J.D. McRae purchased lot 7 (consisting of 3.31 acres) for $7,700; James Turner purchased lot 10 (consisting of 33.40 acres) for $66,500; William Fiorentino purchased lot 11 (consisting of 32.15 acres) for $70,500; and Ronald Vaughn purchased lots 3 (consisting of 3.41 acres) and 12 (consisting of approximately 26 acres) for $19,000 and $47,300 respectively. Porter and McRae subsequently assigned their contract rights to lots 6, 7, and 8 to D.L. Putman. Prior to the auction, J.T.S. Lands, Inc., was told that lots 6, 7, and 8 had failed "percolation" tests and could not be used for residential purposes because they were unsuitable for the installation of septic tanks. The fact that the lots had failed the "percolation" tests was announced at the auction. In addition, copies of a plat depicting lots 6, 7, and 8 as part of the subdivision were made available to the attending public, as well as copies of restrictive covenants that were to apply to *93 those lots. There was no announcement at the auction that lots 6, 7, and 8 were not to remain as part of the subdivision. Following the auction, the plat depicting lots 6, 7, and 8 as part of the subdivision was submitted to the City of Madison Planning Commission for its approval. The Commission refused to approve the plat unless lots 6, 7, and 8 were excluded from the subdivision. The lots were excluded, the Commission gave its approval, and on June 26, 1979, a plat was recorded in the probate court in Madison County depicting lots 6, 7, and 8 with hatches and the notation: "Cross-Hatched Area Not Part of Subdivision Except Easements." The numbers "6," "7," and "8," and the dimensions of the lots were, however, clearly visible on the plat. On July 3, 1979, J.T.S. Lands, Inc., recorded in the probate court a document entitled "Restrictive Covenants." That document, in part, reads as follows:
On July 11, 1979, J.T.S. Lands, Inc., conveyed the lots that had been depicted on the plat as lots 6, 7, and 8 to D.L. Putman. The lots are identified in the deed by a metes and bounds description, but they can be identified in the recorded plat by reference to that description. Thereafter, the lots were conveyed to Land Dealers, Inc., which later conveyed them to the Cluttses.[1]
The present action for a declaratory judgment was filed by the Cluttses to determine whether their property was subject to the restrictive covenants.[2] The trial court did not state its reasons for declaring the covenants inapplicable to the Cluttses' property.
The appellants contend that even though J.T.S. Lands, Inc., excluded the Cluttses' lots from the subdivision, it nonetheless intended to, and did, impose the same restrictions on those lots that it imposed on other lots in the subdivision, and that the *94 covenants are confined to a lawful purpose within reasonable bounds. Therefore, the appellants argue, the judgment is erroneous and must be set aside.[3] We agree.
It is well established that this Court will not presume error and will affirm a judgment appealed from if it is supported on any valid legal ground. Odom v. Blackburn, 559 So. 2d 1080 (Ala. 1990). As previously noted, the judgment in this case was based on stipulated facts. When the trial court is not presented with conflicting oral testimony, the ore tenus rule is inapplicable and this Court will sit in judgment on the evidence, McCulloch v. Roberts, 292 Ala. 451, 296 So. 2d 163 (1974), as well as on the application of the law to that evidence. St. Clair Industries, Inc. v. Harmon's Pipe & Fitting Co., 282 Ala. 466, 213 So. 2d 201 (1968).
In Hines v. Heisler, 439 So. 2d 4, 5-6 (Ala.1983), this Court reiterated the general rule governing the construction of restrictive covenants:
In the present case, the restrictive covenants, which were recorded in the probate court subsequent to the recording of the plat of the Schrimscher Estates subdivision, clearly indicate that J.T.S. Lands, Inc., intended to protect the owners of lots in the subdivision by imposing the same restrictions on the Cluttses' lots that it imposed on lots in the subdivision. J.T.S. Lands, Inc., apparently referred in the restrictive covenants to the Cluttses' lots as "lots ... 6, 7, 8," as shown on the recorded plat, instead of to the metes and bounds description, in an attempt to more clearly identify the lots. Our conclusion in this regard is supported by the fact that the Cluttses' lots are clearly identified on the recorded plat by the numbers "6," "7," and "8," and by the fact that the lots were excluded from the subdivision and depicted as "cross-hatched" on the recorded plat for the sole purpose of obtaining the approval of the plat from the Commission. There is simply nothing in the record tending to show that J.T.S. Lands, Inc., did not intend for the restrictive covenants to apply to the Cluttses' lots.
We also conclude that, under the facts of this case, it is not unlawful or unreasonable for the restrictive covenants to be enforced. J.T.S. Lands, Inc., imposed the restrictions for the purpose of protecting the investments of lot owners within the subdivision. In this respect, the covenants are similar to numerous others in this state that have been imposed to protect the integrity of planned residential developments. We note from the record that the Cluttses, citing Trustees of Howard College v. McNabb, 288 Ala. 564, 263 So. 2d 664 (1972), argued to the trial court that enforcement of the covenants would amount to a prohibition of substantially all of the legitimate uses for their property and, therefore, that the covenants were void. This argument was based on the results of the "percolation" tests. The Cluttses took the position that their lots were not suitable for the installation of septic tanks; that the lots were, therefore, not suitable for residential use; and that *95 enforcement of the covenants, which prohibit commercial development of the lots, would deprive them of substantially all of the legitimate uses for their property.
In Trustees of Howard College v. McNabb, supra, this Court stated:
288 Ala. at 574-75, 263 So. 2d at 673-74. (Emphasis added in Trustees of Howard College). In the present case, enforcement of the covenants will not deprive the Cluttses of all the legitimate uses for their property.[4] True, the lots cannot be sold for commercial development. However, the property is still capable of being used for residential purposes. Alabama Code 1975, § 22-26-7, reads as follows:
Assuming that the Cluttses' lots, each of which exceeds three acres, do not meet the requirements set out in § 22-26-7(a) for the installation of septic tanks,[5] we see nothing in the record to indicate that the lots could not be consolidated into a 9.93-acre lot, which could then either be put to residential use by the Cluttses or sold by them for residential development, pursuant to the exemption set out in § 22-26-7(c). We note that any diminution in value of the Cluttses' property that might result from our decision in this case is of no legal consequence. See Laney v. Early, 292 Ala. 227, 292 So. 2d 103 (1974). In spite of this, after considering the relative sizes of some of the nearby lots and the prices that were paid for those lots at the auction, we further note that a 9.93-acre lot suitable for residential use would appear to be quite valuable to the Cluttses.
*96 For the foregoing reasons, we hold that the Cluttses' lots are subject to the restrictive covenants recorded by J.T.S. Lands, Inc. The judgment of the trial court is, therefore, reversed, and the cause is remanded for entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES and SHORES, JJ., concur.
KENNEDY, J., concurs in the result.
[1] None of the deeds in the Cluttses' chain of title states that the lots were conveyed subject to the recorded restrictions; however, Putman, Land Dealers, Inc., and the Cluttses all had at least constructive knowledge of the restrictions by virtue of the reference in each of the deeds to certain easements "that traverse across the above described 9.93 acre tract as shown on the Plat of Schrimsher Estates as recorded in Plat Book 10, Page 51, Probate Records of Madison County," and, therefore, took their respective titles subject thereto. See Ala.Code 1975, § 35-4-63; see, also, Taylor v. Kohler, 507 So. 2d 426 (Ala.1987). We note also that the deeds from J.T.S. Lands, Inc., to Putman and from Putman to Land Dealers, Inc., contained disclaimers of warranty as to any "restrictions ... of record."
[2] The complaint alleged that the Cluttses wanted to sell their property for use as a commercial nursery.
[3] The Cluttses did not file a brief on appeal.
[4] We note that, under certain circumstances, it might not be unreasonable to enforce recorded restrictions even if the enforcement of those restrictions would result in a prohibition of substantially all of the legitimate uses of a piece of property. However, that issue is not before us in this case.
[5] The record indicates only that none of the three lots passed a "percolation" test. We are not privy to the information concerning the bedrock elevations, the percolation test times, or the water table elevations with respect to the lots. | May 4, 1990 |
8ed18e72-bf56-4aca-bc2c-04064796fdac | Sanders v. First Bank of Grove Hill | 564 So. 2d 869 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 869 (1990)
Johnny R. SANDERS
v.
FIRST BANK OF GROVE HILL, et al.
88-786.
Supreme Court of Alabama.
April 27, 1990.
*870 George L. Simons, Mobile, for appellant.
V. Wylynn Gilmore-Phillippi, Grove Hill, for appellee Paul Huggins.
Knox Argo, Montgomery, for appellees.
*871 ALMON, Justice.
This is an appeal from the denial of a motion to intervene and a motion to vacate a consent judgment entered in an interpleader action. That judgment was entered following a settlement among various parties who claimed ownership of two certificates of deposit and the funds in a checking account held in the name of Cora Mae Huggins, who died intestate.
In 1980, Cora deposited funds in the First Bank of Grove Hill ("the Bank") and received two certificates of deposit in the name of "Cora Mae Huggins or Paul Huggins." Those certificates had a maturity date of November 16, 1985. In 1984 the probate court found Cora to be non compos mentis, and Paul was granted letters of guardianship over Cora's estate. After those letters were issued, Paul opened the checking account that is part of this dispute. That account was opened in the name of "Paul Huggins as guardian for Cora Mae Huggins." Approximately one year later, the certificates of deposit issued in 1980 matured and were renewed and issued in the name of "Paul Huggins, Guardian of Cora Mae Huggins." Paul maintains that he instructed the Bank to issue the certificates in his name individually, as well as in his capacity as Cora's guardian, and that he did not notice the Bank's failure to follow his instructions until after Cora's death in 1986.
Following Cora's death, the Bank filed an interpleader complaint pursuant to Rule 22, Ala.R.Civ.P., stating that a number of parties claimed ownership of the certificates and the checking account. Those funds totalled $136,527.95. The complaint named as defendants Paul Huggins, individually and as guardian of Cora's estate; the estate of Cora Mae Huggins; the estate of Jessie D. Huggins, Cora's deceased husband; and W.D. Wampler, president of the Alabama-Mississippi Conference of Seventh-Day Adventists, as the executor of Jessie D. Huggins's estate. An administrator ad litem was appointed to represent Cora's estate, and all of the parties entered into negotiations in an attempt to reach a settlement agreement concerning the division of the funds held by the Bank. These parties were able to reach an agreement, whereby Paul was to receive one of the certificates, in the amount of $63,318.24; Cora's estate was to receive the second certificate, in the amount of $63,318.24; and the Alabama-Mississippi Conference of Seventh-Day Adventists was to receive the funds held in the checking account, a sum of $9,891.47.
A hearing was held in the circuit court, and the proposed settlement was read in open court. A number of Cora's heirs were present at the hearing, and Johnny R. Sanders, a nephew of Cora's, expressed dissatisfaction with the proposed settlement. Following the hearing, the circuit court entered an order approving the proposed settlement. Sanders then filed a motion to intervene and to set aside the court's judgment. That motion was denied, and Sanders appeals.
The substance of Sanders's argument is that the consent judgment entered by the trial court would bar the future litigation of controversies that he contends exist between Paul and Cora's estate because of the operation of the doctrines of res judicata, collateral estoppel, and the compulsory counterclaim rule, Rule 13(a), Ala.R.Civ.P. Although Sanders readily admits that no action has been filed by the representative of Cora's estate against Paul, either in his capacity as the guardian of her estate or in his individual capacity, he argues that potential controversies exist concerning the validity of a deed conveying property from Jessie Huggins to Paul and concerning Paul's alleged failure to perform duties he was required to perform as the guardian of Cora's estate, including the filing of partial and final settlements. Sanders filed his motion to intervene as an heir of Cora but was not joined by the administrator of Cora's estate. Therefore, this opinion will be confined to consideration of potential actions that Sanders would have standing to bring and it will not consider potential actions that could be brought by the administrator of Cora's estate or by any other party.
*872 This Court set out the elements of res judicata and collateral estoppel in Leverette ex rel. Gilmore v. Leverette, 479 So. 2d 1229 (Ala.1985):
Leverette, supra, at 1235-36 (quoting Wheeler v. First Alabama Bank of Birmingham, 364 So. 2d 1190, 1199 (Ala.1978)).
We find that any potential action brought by Sanders concerning the validity of the deed conveying real property from Jessie Huggins to Paul would not be barred by res judicata. The consent judgment concerned only the ownership of funds held by the Bank, and there is no indication that the validity of the deed was ever an issue brought to the court's attention. Although a consent judgment is generally entitled to the same conclusive effect as a judgment on the merits, see 50 C.J.S. Judgments § 705 (1947), all of the elements of res judicata must be present before that doctrine will act as a bar. An action filed by Sanders in the future to contest the validity of the deed would constitute an entirely new cause of action and would not involve "substantially identical" parties. Therefore, the third and fourth elements of res judicata, as set out in Leverette, supra, would be absent, and that doctrine would not act as a bar. Likewise, any action brought by Sanders against Paul concerning his alleged failure to perform his statutory duties as the guardian of Cora's estate would be subject to the same analysis and result.
This Court also finds that any potential action by Sanders concerning either of the above issues would not be precluded by the doctrine of collateral estoppel. Any such action would involve an issue or issues that clearly would not be identical to the issues present in the interpleader action filed by the Bank, and thus would fail to meet the first requirement for the operation of collateral estoppel. Absent that "identity of issues," the doctrine does not act as a bar to future litigation. Leverette, supra.
Sanders's final contention is that the compulsory counterclaim rule would operate to bar future litigation concerning the validity of the deed and would prevent him from bringing an action against Paul for an accounting. Rule 13(a), Ala.R. Civ.P., states in relevant part:
The purpose of Rule 13(a) is "to avoid circuity of actions, and to require assertion as counterclaims of those claims which are likely to turn on the same facts as the original claim." Committee Comments, Rule 13; Ex parte Fletcher, 429 So. 2d 1041, 1044 (Ala.1982). Failure to properly assert a compulsory counterclaim in the original proceeding bars future litigation by the parties on that claim. However, the determination of whether a compulsory counterclaim exists is made at the time at which the potential counterclaimant must *873 file an answer. Brooks v. Peoples National Bank of Huntsville, 414 So. 2d 917, 920 (Ala.1982). Therefore, the rule can logically be applied only to parties who were parties to the original proceeding. See Brooks, supra; see also 6 C. Wright and A. Miller, Federal Practice and Procedure, § 1404 at 4, n. 48.1 (1989 Supp.). Sanders was never a party to the action that resulted in the consent judgment and could not be barred by that judgment from filing an action against Paul. We recognize that a different result might be reached if Sanders's motion to intervene had been granted, but consideration of that possible result is not necessary.
Without commenting on the merits of any claim Sanders might have against Paul, this Court finds that none of the potential claims he expresses concern about would be barred by res judicata, collateral estoppel, or the compulsory counterclaim rule. Therefore, the trial court's denial of his motion to intervene will not impair his ability to protect any interest he may have in Cora's estate. In addition, the trial court's denial of Sanders's motion to vacate the consent judgment was not an abuse of discretion, and it will not be disturbed. Grigsby v. Liles, 274 Ala. 67, 70, 147 So. 2d 846, 851 (1962). The judgment of the trial court is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | April 27, 1990 |
7b5f55f5-f3ce-4dd4-9642-08d096898c07 | Smith v. Arnold | 564 So. 2d 873 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 873 (1990)
Jack Carlton SMITH, as administrator of the estate of Derryl Adus Smith, deceased
v.
Dr. A.G. ARNOLD.
88-831.
Supreme Court of Alabama.
April 27, 1990.
Ronald R. Crook of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.
W. Stancil Starnes and Laura Howard Peck of Starnes & Atchison, Birmingham, for appellee.
G.R. "Rick" Trawick, Montgomery, for amicus curiae Alabama Dept. of Mental Health and Mental Retardation.
ALMON, Justice.
This is an appeal from a summary judgment entered in a medical malpractice action in favor of Dr. A.G. Arnold and against James Carlton Smith ("Smith"), the administrator of the estate of Derryl Adus Smith ("Derryl"), in the Circuit Court of *874 Jefferson County.[1] The question presented is whether a psychiatrist employed by the State is protected from tort liability by the doctrine of substantive immunity in an action based on recommendations, made in his official capacity, concerning the care and treatment of a patient confined in a State mental health facility.
On February 20, 1978, Derryl was involuntarily committed by the Probate Court of Geneva County to the custody of the Department of Mental Health and Mental Retardation ("the Department"). That court ordered Derryl's commitment because it found that he posed "a real and present threat of substantial harm to himself or to others." Derryl was eventually placed at the Thomasville Adult Adjustment Center ("the Center"), a minimum-security facility operated by the Department.
Dr. Arnold was an attending psychiatrist at Searcy Hospital, another mental health facility operated by the Department. Part of Dr. Arnold's duties included acting as a consulting psychiatrist to the Center. Dr. Arnold traveled to the Center once or twice a month and examined patients that the full-time staff at the Center believed warranted his attention. During these visits Dr. Arnold would examine those patients and make recommendations to the staff regarding their care and treatment. The staff was not required to follow Dr. Arnold's recommendations, but, according to the deposition of Dr. Margaret Henry, a supervisor at the Center, it routinely did so. Those examinations and recommendations were Dr. Arnold's only involvement with the patients at the Center. He was not involved in formulating treatment plans for the patients, nor did he participate in their day-to-day care.
Dr. Arnold examined Derryl approximately six times during his stay at the Center, with the last examination taking place on October 28, 1981. Following that examination, Dr. Arnold noted that Derryl's condition had deteriorated and that his behavior was "out of control" 50 to 60 percent of the time. Dr. Arnold felt the programs and facilities at the Center were not meeting Derryl's needs and recommended that he be transferred to the state mental hospital of origin. Dr. Arnold also recommended that Derryl be taken off all psychotropic medications on a trial basis, so that a more accurate re-evaluation of his underlying psychopathology could be performed.
On November 15, 1981, while still a patient at the Center, Derryl became highly agitated after a telephone conversation with his mother. He became violent and threatened to kill himself. Pursuant to the Center's standard procedures, Derryl's clothing was removed and he was placed in a pair of pajama bottoms. All personal effects with which he could harm himself were confiscated, and he was placed in a seclusion room to allow him to calm down and to protect himself, the staff, and other patients from harm. Derryl was placed in the seclusion room at 8:30 a.m., and the appropriate staff members were contacted to evaluate him. Von Gibson, an employee at the Center, checked on Derryl at 8:45 a.m. and again at 9:15 a.m. At 9:15 Gibson found that Derryl had hanged himself. All attempts at resuscitation were unsuccessful, and Dr. Henry pronounced Derryl dead.
On November 14, 1984, Smith filed a complaint in the Circuit Court of Jefferson County against numerous defendants, including Dr. Arnold. In his complaint, Smith alleged that the defendants had been negligent in diagnosing and treating Derryl and in failing to implement adequate suicide prevention measures and that their negligence had been the proximate cause of Derryl's death. On September 27, 1988, Dr. Arnold filed a motion for summary judgment. That motion was supported by a brief and an affidavit. Dr. Arnold contended that he was entitled to summary judgment because he was not involved in Derryl's day-to-day care, had not participated in the decision to seclude him, and *875 was entitled to substantive immunity. On February 27, 1989, the court granted Dr. Arnold's motion, holding that he was entitled to substantive immunity in accordance with this Court's decision in Barnes v. Dale, 530 So. 2d 770 (Ala.1988). It is from the resulting summary judgment that Smith appeals.
Generally, the State of Alabama and its officers and agents cannot be made defendants in any court. See Ala. Const., art. I, § 14. This absolute or constitutional immunity extends to state officers when the action filed is, in effect, against the State. DeStafney v. University of Alabama, 413 So. 2d 391, 393 (Ala.1982). However, this absolute immunity does not always shield state officers from liability for negligent acts, even when committed in the line and scope of their employment. Hickman v. Dothan City Bd. of Educ., 421 So. 2d 1257, 1259 (Ala.1982). The lack of absolute immunity does not, however, mean that state officials are amenable to suit for any act or omission that could be characterized as negligent. This Court stated in DeStafney, supra:
DeStafney, supra, at 395.
In his order granting Dr. Arnold's motion for summary judgment, the trial judge ruled that he was involved in the exercise of a discretionary function when acting as a psychiatric consultant to the Center. To determine the propriety of that order, this Court must decide if Dr. Arnold was, in fact, exercising a discretionary function when he made recommendations concerning Derryl's care. If he was, then the first test listed in DeStafney would operate to shield him from suit by Smith.
As noted in numerous decisions by this Court, the discretionary function standard is often difficult to interpret. See Barnes v. Dale, 530 So. 2d 770 (Ala.1988); Hickman, supra; Bell v. Chisom, 421 So. 2d 1239 (Ala.1982); DeStafney, supra. Two of those cases clearly illustrate the conflicting policy considerations the courts must apply. In DeStafney this Court examined the functions performed by a state-employed day care worker who was sued in her individual capacity and it rejected her claim of immunity. In that case, the day care worker's duties required the exercise of due care rather than decision making and therefore could not be deemed discretionary. In Barnes v. Dale, a case similar in many respects to the one presently before the Court, the administrator of a decedent's estate brought a wrongful death action against employees of a state mental health facility, alleging negligence and wanton treatment in the release of a patient who shot and killed the plaintiff's decedent after his release. In Barnes, this Court held that the employees were entitled to substantive immunity:
Barnes, supra, at 784. In recognition of the fact that the very nature of the mental health profession involves discretion and difficult decision-making, this Court held that the defendants were performing a discretionary function and were therefore entitled to substantive immunity. Barnes, supra, at 785.
These cases clearly illustrate the ministerial-discretionary dichotomy that is crucial *876 to the resolution of cases involving claims of discretionary function immunity. Comment h. to § 895D, Restatement (Second) of Torts (1979), describes "ministerial acts" as those involving "[l]ess in the way of personal decision or judgment or [in which] the matter for which judgment is required has little bearing of importance upon the validity of the act," and states that "[m]inisterial acts are those done by officers and employees who are required to carry out the orders of others or to administer the law with little choice as to when, where, how, or under what circumstances their acts are to be done." Conversely, "discretionary acts" are defined as follows by Black's Law Dictionary 419 (5th ed. 1979): "Those acts [as to which] there is no hard and fast rule as to course of conduct that one must or must not take and, if there is [a] clearly defined rule, such would eliminate discretion.... One which requires exercise in judgment and choice and involves what is just and proper under the circumstances."
Smith urges this Court to limit the application of the substantive immunity doctrine as it is set forth in Barnes, supra. He contends that that case limits the immunity extended to State-employed mental health professionals to actions arising out of their decisions to admit or discharge patients. Although decisions concerning the existence of substantive immunity must necessarily turn on the circumstances of each case, we find Smith's interpretation of Barnes to be overly restrictive. It was not this Court's intention to limit the application of substantive immunity to decisions of a certain class. Instead, the courts must focus on the process employed to arrive at the decision. In this case, we find that the decisions and recommendations made by Dr. Arnold concerning Derryl's care involved the exercise of his professional judgment and discretion. Exposure to liability for such decisions, which are made on the State's behalf, would unduly hamper the decision-making process and impose undesirable shackles on the agencies of government.
For these reasons, Dr. Arnold was entitled to the shield of substantive immunity from civil liability. The judgment is therefore affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS, and STEAGALL, JJ., concur.
[1] Smith's complaint named numerous other employees of the Alabama Department of Mental Health and Mental Retardation as defendants. However, this appeal involves only Smith's allegations against Dr. Arnold. | April 27, 1990 |
c59f27ef-d84d-4185-a48b-c90a069f5b53 | Phillips v. JH Transport, Inc. | 565 So. 2d 66 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 66 (1990)
Jerry PHILLIPS and Kathryn P. Phillips
v.
J.H. TRANSPORT, INC., and James R. Smith Poultry and Produce Company, Inc.
88-149.
Supreme Court of Alabama.
April 20, 1990.
*67 Thomas E. Davis, Gadsden, for appellants.
John M. Fraley of McDaniel, Hall, Conerly & Lusk, John W. Clark, Jr. and William A. Austill, Birmingham, for appellees.
ALMON, Justice.
Jerry and Kathryn Phillips filed an action to recover damages for personal injuries sustained by them when their automobile collided with a tractor-trailer truck. Originally the complaint was filed against Arthur Bernhisel, the driver of the truck; and Travis Wilhite, the owner. Later, the Phillipses amended their complaint, adding J.H. Transport, Inc., and Smith Poultry and Produce Company, Inc. ("Smith Poultry"), as defendants, alleging that the truck was owned, leased, or operated under the authority of one or both of those two companies. After evidence was presented to a jury, the trial court entered a judgment by consent for the Phillipses and against Wilhite and Bernhisel in the amount of $30,000, with the execution of the judgment stayed pending further orders of the court. The trial court granted motions for directed verdict filed by J.H. Transport and Smith Poultry. This appeal is from the judgment for those two defendants based on the directed verdict.
The record indicates that a 1975 Peterbilt truck, owned by Wilhite, was under a long-term lease to Smith Poultry on or about April 23, 1986. Wilhite entered into a trip lease with J.H. Transport for this truck to transport potatoes from Greenville, Michigan, to Chattanooga, Tennessee. Prior to the trip, the Peterbilt truck developed mechanical problems and Wilhite made arrangements, with J.H. Transport's approval, for a 1975 Kenworth truck to be substituted in its place. It appears that this Kenworth truck was already under a long-term lease[1] to J.H. Transport, and consequently, no new trip lease was executed with Wilhite.
Bernhisel left Greenville, Michigan, on April 25, 1986, and arrived in Chattanooga on April 27, 1986. After delivering the potatoes, Bernhisel left Chattanooga and drove to meet Wilhite in Cullman, Alabama, as the truck was scheduled to be leased on April 29 to Smith Poultry. The accident involving the Phillipses occurred just east of Cullman on April 28, 1986.
The Phillipses argue that the trial court improperly granted the defendants' motions for a directed verdict and that the question of whether Smith Poultry and J.H. Transport were vicariously liable should have been submitted to the jury.[2] They *68 base their argument on two theories: (1) the Interstate Commerce Commission ("I.C. C.") Regulations and (2) common law rules of agency. First, they argue that Smith Poultry and J.H. Transport were liable because J.H. Transport's I.C.C. number was affixed to the side of the Kenworth truck at the time of the accident. They contend that liability exists by virtue of I.C.C. Regulation 49 C.F.R. § 1057.4(d)(1) (now located at 49 C.F.R. §§ 1057 & 1058). The Phillipses argue that both Smith Poultry and J.H. Transport had an affirmative duty to remove all names and numbers from the side of the truck, and they cite Ex parte Hicks, 537 So. 2d 486 (Ala.1988); Simmons v. King, 478 F.2d 857 (5th Cir.1973); Price v. Westmoreland, 727 F.2d 494 (5th Cir. 1984) (carrier lessee liable for passenger's injuries despite fact that driver exceeded his authority); and Rodriguez v. Ager, 705 F.2d 1229 (10th Cir.1983) (carrier lessee liable for injuries sustained in accident despite fact that driver was not on mission for carrier), for the proposition that the I.C.C. regulations preempt state common law and create a presumption of an employment relationship between a driver and a company whose placards identify the vehicle.
The regulation at 49 C.F.R. § 1058.2 states:
Additionally, §§ 1057.12(c)(1) and 1057.31(d)(1) state, respectively:
(Emphasis added.)
Smith and J.H. Transport argue that the truck was not carrying a load and was not under a lease for either carrier. They contend that Wilhite had sole control over Bernhisel's activities and that Bernhisel was not an agent for either carrier. Additionally, Smith argues that it is not liable because its lease for the truck had not yet come into existence and its I.C.C. numbers were not on the Kenworth truck at the time of the collision. A thorough review of the records shows this to be correct. The Peterbilt, not the Kenworth, was under a long-term lease to Smith and had Smith's I.C.C. number displayed on it. However, because that was not the truck involved in the collision, and because that lease is of no consequence to this case, we find that the directed verdict in favor of Smith was correct. Smith's judgment based on that directed verdict is affirmed.
J.H. Transport also argues that the directed verdict in its favor was correct. It contends that the Kenworth was under lease only for the delivery of the potatoes and that its obligation and control of the truck terminated in Chattanooga. J.H. Transport argues that the mere presence on the Kenworth of its I.C.C. decals is *69 insufficient to make it liable for the conduct of Bernhisel and that he was not under its control. Additionally, it cites case law stating that no administrative presumption arises as to ownership when the actual owner of a vehicle is known. We agree that in this case there is no dispute that Wilhite is the owner of the truck; nevertheless, proof that a vehicle is actually owned by a third party, without more, does not destroy an administrative presumption that the vehicle was operated by a carrier's agent acting within the scope of his employment. Sears, Roebuck & Co. v. Hamm, 38 Ala.App. 258, 81 So. 2d 915 (1955). J.H. Transport argues that the existence of a long-term lease was never conclusively proved at trial. Notwithstanding its contentions, in the alternative it argues that even if the truck was under lease to it, it is not liable because Bernhisel was not acting within the scope of his employment.
Despite J.H. Transport's arguments, we conclude that a fact question was presented as to whether the Kenworth was under lease to it at the time of the accident. For example, it is uncontradicted that Bernhisel was dispatched by, and was qualified to drive for, J.H. Transport and was engaged in its mission while in Chattanooga. Bernhisel was not qualified to drive for Smith Poultry. Moreover, despite J.H. Transport's contention that the long-term lease was never conclusively proved at trial, the fact that no new trip lease was executed when the Kenworth was substituted for the disabled Peterbilt is circumstantial evidence to be considered along with other evidence that the Kenworth was already under a long-term lease to J.H. Transport. Bernhisel testified that Norma Timmons, J.H. Transport's dispatcher, told him that a new trip lease was unnecessary because the Kenworth truck was already under a long-term lease to J.H. Transport.
The fact that J.H. Transport's name and I.C.C. number remained on the Kenworth provides further evidence that that truck was under a long-term lease to, or was otherwise under the control of, J.H. Transport.
In Hicks, supra, a case similar to the one now before this Court, plaintiff filed an action to recover for damages she and her granddaughter sustained when a tractor-trailer truck collided with their automobile. In that case, because neither the owner nor the driver was qualified to transport goods in interstate commerce, an authorized carrier's I.C.C. numbers were displayed on the truck. In reversing the directed verdict in favor of the carrier, the Court reasoned:
537 So. 2d at 489. While recognizing other decisions to the contrary, this Court held the carrier liable despite the fact that the collision occurred while the carrier was returning from a delivery with an empty trailer.
In Empire Fire & Marine Ins. Co. v. Truck Ins. Exchange, 462 So. 2d 76 (Fla. Dist.Ct.App.1985), a carrier was found liable, pursuant to I.C.C. regulations, for injuries sustained by a passenger even though the accident occurred after the driver had made his delivery. The court reasoned that the I.C.C. regulations controlled, despite the fact that the driver was en route to a lounge and the fact that the passenger/plaintiff injured in the accident was a trespasser as to the carrier. The court concluded that because the truck was under a long-term lease, the carrier had possession and control of the truck, including full responsibility to the public.
Correspondingly, in Cosmopolitan Mutual Ins. Co. v. White, 336 F. Supp. 92 (D.Del.1972), a carrier's insurer was held liable despite the fact that the driver was picking up a delivery for a third party and was not engaged in the business of the carrier. The court stated that because the carrier failed to comply with the I.C.C. regulations the lease was still in effect and the carrier was not relieved of its statutory obligation, despite the fact that the carrier had sent a letter to the owner purporting to conclude the lease. Although the plaintiffs failed to join the carrier before the statutory period of limitations had run, the driver was also covered by the carrier's insurance policy by virtue of the lease agreement; therefore, the carrier's insurance company was liable. See also Mellon National Bank & Trust Co. v. Sophie Lines, Inc., 289 F.2d 473 (3d Cir.1961) (I.C.C. carrier liable for negligence of driver even though driver was carrying load for another company without carrier's approval); Cox v. Bond Transportation, Inc., 53 N.J. 186, 249 A.2d 579 (1969) (carrier liable even though driver en route to his home); Turnbow v. Hays Freight Lines, Inc., 15 Ill. App.2d 57, 145 N.E.2d 377 (1957) (carrier liable for injuries occurring while driver was driving to a motel after delivery of a load); National Trailer Convoy, Inc. v. Saul, 375 P.2d 922 (Okla.1962); Felbrant v. Able, 80 N.J.Super. 587, 194 A.2d 491 (1963) (carrier liable for injuries sustained despite fact that driver was on his way home after delivery).
These I.C.C. regulations were promulgated to establish responsibility in the interstate trucking business for the protection of the public. As stated in Transamerican Freight Lines v. Brada Miller Freight Systems, 423 U.S. 28, 96 S. Ct. 229, 46 L. Ed. 2d 169 (1975),
423 U.S. at 37, 96 S. Ct. at 234 (quoting American Trucking Ass'ns v. United States, 344 U.S. 298, 73 S. Ct. 307, 97 L. Ed. 337 (1953)) (citations omitted).
In light of the purpose behind the promulgation of the I.C.C. regulations, we are persuaded that the better rule is to require carriers to remove their placards prior to relinquishing possession at the termination of their lease. Failure to comply with the I.C.C. regulations raises a presumption that the equipment is still under the control and lease of the carrier. While *71 this imposes a burden on carrier lessees, that burden is justified by the fact that a carrier has no authorization to transport interstate goods without the presence of the I.C.C. decal. There was evidence presented from which a jury could have determined that the Kenworth was still under lease to, or was otherwise under the control of, J.H. Transport. Therefore, we reverse the judgment based on the directed verdict in favor J.H. Transport.
For the foregoing reasons, the judgment is affirmed as to Smith Poultry, but is reversed as to J.H. Transport.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES, SHORES, ADAMS and HOUSTON, JJ., concur.
MADDOX and STEAGALL, JJ., concur in the result.
MADDOX, Justice (concurring in the result).
I concur in the result only.
In the opinion, the statement is made that "proof that a vehicle is actually owned by a third party, without more, does not destroy an administrative presumption that the vehicle was operated by a carrier's agent acting within the scope of his employment."
The law regarding administrative presumptions has been troublesome to this Court, but the most recent expression of that law is contained in Ex parte Hicks, 537 So. 2d 486 (Ala.1988):
537 So. 2d at 488.
The fact that J.H. Transport's name and I.C.C. number remained on the Kenworth truck was some evidence from which a finder of fact could infer that the truck was under the control of J.H. Transport. In other words, the issue of control was in dispute and the fact that J.H. Transport's name and I.C.C. number remained on the Kenworth could be considered on that issue, but the law on administrative presumptions is contained in Ex parte Hicks, supra. Because I am not completely clear on the extent to which the law of administrative presumptions is changed by this opinion, I concur in the result only.
STEAGALL, J., concurs.
[1] No written lease was produced at trial, however.
[2] This case is governed by the "scintilla rule" because the suit was filed prior to the effective date of Ala.Code 1975, § 12-21-12. | April 20, 1990 |
8946b83f-cc5f-43f4-9581-01af8b90d1c0 | Brown v. State | 565 So. 2d 585 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 585 (1990)
James Clyde BROWN, et al.
v.
STATE.
88-656.
Supreme Court of Alabama.
May 11, 1990.
Rehearing Denied June 22, 1990.
William J. Baxley and Joel E. Dillard of Baxley, Dillard & Dauphin, Birmingham, and James Doyle Fuller and George Lamar Beck, Jr., Montgomery, for appellants.
Don Siegelman, Atty. Gen., and Leura J. Garrett, Asst. Atty. Gen., for appellee.
SHORES, Justice.
This action is an outgrowth of this Court's decision in Ex parte Dison, 469 So. 2d 662 (Ala.1984), in which we reversed the defendant's conviction for driving under the influence in violation of Code of 1975, § 32-5A-191, because the Uniform Traffic Ticket and Complaint ("UTTC") issued to the defendant had not been verified before a judicial officer and the defendant had raised this issue at the time of trial.[1] We concluded in Dison that this lack of verification of the ticket prevented the district court, and subsequently the circuit court on appeal, from obtaining subject matter jurisdiction, and, thus, that the defendant's *586 conviction was void. 469 So. 2d at 665.
Following the Dison decision, James Clyde Brown[2] and Terry P. Duncan[3] filed this class action against the State of Alabama, the City of Montgomery, and others on behalf of themselves and all those who had been convicted of traffic offenses based upon improperly verified UTTC's. Their case was styled a "Petition for Writ of Habeas Corpus or in the Alternative Bill for Declaratory Judgment, Injunctive or Other Relief." They sought to have all improperly verified UTTC convictions expunged from the records and to have all fines and costs paid as a result of the convictions refunded to the plaintiffs.
The Circuit Court of Montgomery County certified the plaintiff and defendant classes on September 5, 1985. The trial judge's order defined the plaintiffs' class as follows:
(C.R. 212-13.)
In this same order the trial judge defined the class of defendants as follows:
(C.R. 214.) The trial judge ordered:
(C.R. 214-16.)
Plaintiffs' counsel subsequently filed a "Notice of Compliance with Publication Order" certifying that he had fully complied with the trial court's order of September 5, 1985, at his expense. (C.R. 270.)
During the pendency of the present case and also as an outgrowth of the Dison decision, a woman who had pleaded guilty twice to driving under the influence in Dothan filed a collateral proceeding to set aside and vacate her convictions and to secure a refund of her fines. Neither of the two UTTC's she had received was sworn to or acknowledged before a judge or magistrate, and this lack of verification was plain on the face of the ticket. City of Dothan v. Holloway, 501 So. 2d 1136 (Ala. 1986). In Holloway this Court overruled Dison and held that the lack of verification of the UTTC's would only affect the trial court's ability to obtain jurisdiction over the person and not its ability to obtain jurisdiction of the subject matter. We said:
501 So. 2d at 1137.
501 So. 2d at 1139.
Id.
On December 30, 1985, the trial court entered a summary judgment in favor of the plaintiffs as to Subclass A only, and certified that summary judgment as final, pursuant to Rule 54(b), A.R.Civ.P. The trial court found a genuine issue of material fact as to Subclass B and denied summary judgment as to it. This Court, on the authority of Holloway, reversed the judgment of the circuit court as to Subclass A[5] and remanded the cause in State v. Brown "Brown I"), 514 So. 2d 836 (Ala. 1987), cert. denied, 485 U.S. 961, 108 S. Ct. 1225, 99 L. Ed. 2d 425 (1988).
The defendants filed a motion on May 12, 1988, to dismiss plaintiffs' claims as to Subclass B, those whose UTTC's appeared on their face to be properly verified. The trial court dismissed all of plaintiffs' claims on the basis of the authority of Brown I, and made the order final pursuant to Rule 54(b), A.R.Civ.P. The plaintiffs appeal.[6]
We must determine whether the trial court erred in dismissing the claims against the State of Alabama made by the members of Subclass B who had been convicted of traffic offenses pursuant to UTTC's that indicated a proper verification on the face of the tickets, but which were in fact not verified. This Court's reversal of Brown I, supra, did not mandate dismissal of the complaint as to Subclass B, as it dealt only with Subclass A.
The facts in Dison, Holloway, and Brown I are distinguishable from those in this case. In each of those cases the UTTC's that were issued to the defendants were invalid on their face. Dison raised the issue of verification at the time of trial; Ms. Holloway did not raise the issue of verification and pleaded guilty as charged. We held that by submitting to the personal jurisdiction of the court and by failing to raise the issue at the time of trial, Ms. Holloway had waived the defect in the verification. Clearly, the holding in Holloway was based upon the fact that the UTTC's in question were defective on their face.
In this class action the UTTC's issued appeared on the face to be verified, but were in fact unverified due to the procedures followed by those charged with the responsibility of processing cases tried on the UTTC. The clerk of the District Court of Montgomery County testified that the officers who issued the UTTC's never appeared before her and never swore on oath to the charge, although her signature was affixed by a rubber stamp to the ticket, indicating that the officer had sworn before her to the charge, when in fact he had not. (R-41-42.) Thus, the ticket appeared to be properly verified, when in fact it was not. The clerk changed this procedure after the Dison holding.
Plaintiffs contend that the clerk of the Montgomery County District Court allowed the clerk's office personnel to "fraudulently" acknowledge UTTC's by using a rubber stamp to affix the signature of the clerk to the ticket. Plaintiffs argue that this constituted a fraud in the procurement of the judgment and violates this Court's holding in Cherry v. State, 491 So. 2d 1003 (Ala. 1986), cert. denied, 479 U.S. 861, 107 S. Ct. 210, 93 L. Ed. 2d 139 (1986). Basically, *589 plaintiffs claim that because there appeared to be a proper signature on the ticket, there was no notice of a defect. They argue that "[s]ubject matter jurisdiction was never obtained by the District Court of Montgomery County, Alabama," and that "[a] fraud apparent neither to the district court nor the members of Sub-Class B prevented each member of this sub-class from having an opportunity to consider waiving the jurisdiction defect...." We cannot say that the use of a rubber stamp by clerk's office personnel to affix the signature of the court clerk to UTTC's, at the direction of and with the approval of the clerk, amounted to a fraud in the procurement of the judgment against Brown and other defendants similarly situated; however, we cannot say that the defect we are dealing with in this casea lack of verificationwas one that could be waived.
The defect in the procedure that we are dealing with in this case is not the stamping of the clerk's name by one authorized to do so. The defect is in putting a citizen to trial on a criminal charge, albeit a misdemeanor, when no one has sworn on oath, before an officer authorized to administer an oath, that the citizen has committed an offense. This is the minimum required under the criminal justice system in order to require a citizen to defend himself against a criminal charge.
In our system there are but three ways to initiate a criminal prosecution: by indictment by a grand jury, by a complaint on oath before a magistrate or other official, or on an authorized information:
Kyser v. State, 22 Ala.App. 431, 432, 117 So. 157, 158 (1928). See also Temporary Rule 15.1, A.R.Crim.P.
The Alabama Legislature has, through a variety of statutes, dispensed with grand juries in misdemeanor cases and has authorized prosecution of such cases by information, complaint, or UTTC before a district court. See Ala. Const. (1901), Art. VI, as amended by Amendment No. 328, 6.05 (1973). Section 12-12-53, Ala.Code 1975, provides for the use of the UTTC:
Our Rules of Criminal Procedure define both "complaint" and "information" as being written statements made under oath. Temporary Rule 15.1(b) and (c), A.R. Crim.P. The UTTC form provides for verification of the signature of the arresting officer, because the Rules of Criminal Procedure require it. "An information is a written statement charging the defendant or defendants named therein with the commission of an indictable offense, made on oath, signed, and presented to the court by the district attorney without action by the grand jury." Temporary Rule 15.1(b), A.R. Crim.P. "A complaint is a written statement made upon oath before a judge or other official authorized by law to issue warrants of arrest, setting forth essential facts constituting an offense and alleging that the defendant committed the offense." Temporary Rule 15.1(c), A.R.Crim.P.
The Alabama Rules of Judicial Administration provide further safeguards in criminal *590 procedure. Rule 19(A)(2) provides: "The uniform traffic ticket and complaint shall be used in all traffic cases in all courts of the state. Any ticket properly issued by a law enforcement officer shall be accepted for filing and disposition in any court having jurisdiction over the alleged offense." In order to constitute a complaint upon which a prosecution can take place, a UTTC must be verified.
The members of plaintiff class were put to trial on, or pleaded guilty to, charges to which no person had sworn on oath before a judge or other official. They cannot be said to have waived the defect, because it was not apparent on the face of the UTTC that it was defective. However, their attack on the judgments is a collateral one, coming many years after the judgments were entered. They now seek to have the judgments vacated and the fines refunded. They cannot prevail on these claims. See, Cobbs v. Norville, 227 Ala. 621 at 623, 151 So. 576 at 577 (1933); Carlton v. Owens, 443 So. 2d 1227 at 1231 (Ala. 1983). They have not produced any evidence of fraud or corruption on the part of any state, county, or municipal officer. The practice of certifying that the officer issuing the UTTC had sworn to the charge when this was not the fact is reprehensible, but there appears to be no reason for it except ingorance of what the law requires. Those responsible for educating the people as to what is required to prosecute citizens of this State on the UTTC bear the burden for this.
A similar situation was considered in a class action brought by those persons fined by Alabama justices of the peace for traffic violations. The Callahan[7] class action was filed on the grounds that justices of the peace could not constitutionally try traffic cases under a state statutory scheme giving them a pecuniary interest in the convictions. The class of plaintiffs petitioned the United States District Court for the Middle District of Alabama:
Callahan v. Sanders, 339 F. Supp. 814, at 816-17 (M.D.Ala.1971). While the federal district court found that the state practice constituted a denial of due process, no compensatory or punitive damages were awarded, because the action of the justices was not willful.
The federal district court also considered the question of whether the fines paid by members of the class should be refunded and the convictions set aside. The federal district judge stated as follows:
Callahan v. Sanders, supra, at 818-19. Thus, the court denied a refund of the fines paid, and the convictions of those in the plaintiff class were not set aside. Id. at 819. The court also denied attorney fees.
The refusal of the federal district judge to order a refund of fines and to grant attorney fees was appealed to the United States Court of Appeals for the Fifth Circuit. Callahan v. Wallace, 466 F.2d 59 (5th Cir.1972). That court upheld the district court's refusal to refund the fines and stated:
466 F.2d 59 at 61-62. The Court of Appeals affirmed the district court's holding that there could be no recovery of the fines, but reversed the district court order regarding fees and awarded attorney fees. Id. at 62.
We reach the same conclusions as did the court in Callahan. Plaintiff Brown was tried and found guilty. Plaintiff Duncan pleaded guilty and paid a fine. They sought to dispose of their misdemeanor cases as expeditiously and as conveniently as possible. There is no contention in this case that they did not commit the offenses with which they were charged.
Accordingly, we affirm the judgment of the trial court insofar as it denies the relief sought by the plaintiffs on behalf of Subclass B. They have not shown that the convictions should be vacated, nor have they shown that the fines paid should be returned. The plaintiffs have, however, made a significant contribution to the integrity of our system of jurisprudence in calling attention to a serious flaw in its administration. They have done more in that regard to advance the cause of justice than vacating the judgments of the class members would achieve. We are informed by counsel on both sides of this case that because of this and similar litigation, the practice has been discontinued and that now the officers issuing the UTTC's appear before a judge or magistrate and swear on oath to the charges made therein. We hold that the judgments are not due to be vacated; we also hold that under well settled principles of law, the fines cannot be recovered. However, the plaintiffs are entitled to attorney fees.
The fact that this litigation, by virtue of our rationale and holding, has not produced a monetary recovery does not preclude an *592 award of attorney fees. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 391-93, 90 S. Ct. 616, 625-26, 24 L. Ed. 2d 593 (1970), states the rule as follows:
This litigation clearly resulted in a benefit to the general public. It is unquestionable that plaintiffs' attorneys rendered a public service by bringing an end to an improper practice. The public nature of the services rendered by these lawyers justifies an award of attorney fees. See Callahan v. Wallace, supra, at 62.
We remand this cause to the trial court for proceedings to determine the amount of an attorney fee to be awarded in this case from the State of Alabama, according to these guidelines (which are listed in no particular order):
See: Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala. 1985), Peebles v. Miley, 439 So. 2d 137 (Ala. 1983), Mashburn v. National Healthcare, Inc., 684 F. Supp. 679 (M.D.Ala.1988), and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and HOUSTON and KENNEDY, JJ., concur.
JONES, ALMON and ADAMS, JJ., concur in part and dissent in part, with opinion by ADAMS, J.
STEAGALL, J., concurs in part and dissents in part, with opinion.
MADDOX, J., dissents.
*593 ADAMS, Justice (concurring in part and dissenting in part).
I dissent in part because I want to state clearly my views concerning the outcome of this case. Although the facts in this case are somewhat different from those in Ex parte Dison, 469 So. 2d 662 (Ala.1984), the bottom line is that the class of plaintiffs in the instant case was required to go to trial or plead guilty without a properly verified complaint. This is absolutely forbidden by law, and the trial court did not have jurisdiction to enter its orders under the facts in this case. That being the case, the convictions of the plaintiff class members should be held for naught and expunged from the records of the trial court. I concur in the Court's conclusion that even though the plaintiff class did not prevail, the plaintiffs' attorney performed a great service to the State of Alabama in correcting an evil that went to the very heart of American jurisprudence. It appears that the plaintiffs' attorney had to incur expenses for notification of the members of the class and obviously spent a great deal of time in achieving the result in this case. In addition to the cases cited by the majority, namely, Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1985), and Peebles v. Miley, 439 So. 2d 137 (Ala.1983), see, also, Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429-30 (8th Cir.1970), for a case reaching a result similar to that reached here regarding attorney fees. The mere fact of the plaintiff's not creating a fund from which a fee could be paid should not be a bar to awarding an appropriate attorney fee where the efforts of the plaintiff's counsel have corrected a wrong that may not have been corrected but for his efforts.
JONES and ALMON, JJ., concur.
STEAGALL, Justice (concurring in part and dissenting in part).
I concur with that part of the majority opinion denying the relief sought by the plaintiffs. I agree that the plaintiffs have not shown that the convictions should be vacated or that the fines paid should be returned.
I respectfully dissent from that part of the majority opinion remanding the cause for an award of an attorney fee. I can see no sound reason to require the State of Alabama to pay an attorney fee for privately retained counsel in such a post-conviction proceeding.
MADDOX, Justice (dissenting).
The essence of the Court's holding is that an offender who is given a traffic ticket and who is notified by the ticket to appear in district court and to answer the charge, and who does appear, not only in district court, but in circuit court, where a jury finds him guilty, can, after his conviction, challenge the conviction on the ground that he did not have notice of the accusation and a copy of it sufficient to give either the district or circuit court jurisdiction over him to render a judgment because the name of the district clerk which appeared on the face was affixed by a person using a rubber stamp, at the direction of the district clerk, and that therefore the lack of a proper attestation was a hidden defect which could not be waived. This holding, in my judgment, is legally wrong, and compels me to dissent.
The basis for my dissent is the same as I used in a dissent in the first case, Ex parte Dison, 469 So. 2d 662 (Ala.1984), in which I stated that Judge Harwood (later a Justice of this Court), writing for the Court of Appeals in Pierce v. State, 38 Ala.App. 97, 77 So. 2d 507 (1954), cert. denied, 262 Ala. 702, 77 So. 2d 512 (1955), opined correctly as follows:
The issue presented in this casethe verification of a traffic tickethas engendered much disagreement among the learned Justices of this Court. The depth of the disagreement on this principle by members of this Court is graphically shown by the majority and dissenting opinions in Ex parte Dison, 469 So. 2d 662 (Ala.1984) (Maddox, J., dissenting), the case which obviously gave rise to this suit, and by the majority and dissenting opinions in City of Dothan v. Holloway, 501 So. 2d 1136 (Ala.1986), which overruled Dison, and in which Mr. Justice Beatty, the author of Dison, wrote one of the longest dissents ever written by a Justice on this Court.
The issue is presented once again in this case, and although the main opinion does not disturb Holloway's holding, or rationale, it does hold:
(Emphasis added.) I must respectfully disagree with the conclusion that the facts presented here are significantly different from those in Holloway, and, therefore, that the result reached in Holloway is not applicable to this case.
I believe the law is clear that a defect in a verification must be raised before trial. Pierce v. State, 38 Ala.App. 97, 77 So. 2d 507 (1954), cert. denied, 262 Ala. 702, 77 So. 2d 512 (1955).
Because the Court is so sharply divided on the principles of law that should apply concerning the validity of charges for traffic infractions that are set out on UTTC's, I take this opportunity to express, once again, as I did in my dissent in Dison initially, that I am firm in my belief that the lack of verification (Dison, Holloway, and Brown I[8]) or a defective verification, as in this case, are legally the same, and in both instances, are waivable defects. Stated differently, there should be no difference legally between no verification and an improper verification. In fact, improper verifications, even in the case of indictments, are waivable defects.
Admittedly, the procedure used by the district clerk to affix her signature to the ticket in this case was irregular. The questions nevertheless are: Was the irregularity one that Brown should have raised before he joined issue on the charge? Even assuming that he did not discover the defect until after his conviction, should he be allowed to challenge, in a post-conviction proceeding, this error, which in no way would affect his guilt or innocence of the stated charge? I think not. In support of my position, there are prior Alabama cases in which indictments were involved, not traffic citations, and this Court refused to invalidate the indictments even when they were shown not to have been properly signed, as here.
In Prince v. State, 140 Ala. 158, 37 So. 171 (1904), this Court held that an indictment was not rendered invalid because the signature of the solicitor was written by someone else.[9]
In Benson v. State, 68 Ala. 544 (1881), the defendant, after conviction, moved the court to set aside the verdict, and to arrest the judgment, "`on the ground that the indictment was not indorsed "A true bill" by the foreman of the grand jury.'" The defendant proved irregularities in the signature of the foreman of the grand jury, specifically "`that his signature was not upon the indictment, but that his name was written upon it, under the words, "A true bill," at his request, and in his presence, by the clerk of the grand jury.'" On this evidence, the court overruled the motion, and the defendant excepted. This Court, in an opinion written by Somerville, J., held:
68 Ala. at 545-46. Even though this Court found that the practice was "reprehensible," it nevertheless held that the method for attacking the practice was by a motion to quash the indictment. If that is the rule of law involving an indictment, why is it not the rule in this case involving a traffic ticket?
Alabama case law concerning affidavits also states that defects in documentation must be timely raised. See, Wells v. State, 245 Ala. 511, 17 So. 2d 878 (1944). See also Bolling v. State, 21 Ala.App. 244, 107 So. 40 (1925); and Fealy v. City of Birmingham, 15 Ala.App. 367, 73 So. 296 (1916), in which it is generally held that objections to the sufficiency of an affidavit must be timely raised.
There are also several cases that stand for the proposition that a defendant may waive the very presentment of a complaint if a demand for presentment is not made at the trial level. See City of Dothan v. Holloway, supra; Ex parte Hood, 404 So. 2d 717 (Ala.1981); Chaney v. City of Birmingham, 246 Ala. 147, 21 So. 2d 263 (1944); and Aderhold v. City of Anniston, 99 Ala. 521, 12 So. 472 (1892).
Because of this rule of law, I am of the opinion that the use of the rubber stamp was a waivable defect, if a defect at all, and on that point I cite, once again, the two cases cited above: Benson v. State,[11] 68 Ala. 544 (1881), and Prince v. State, 140 Ala. 158, 37 So. 171 (1904).
I think it is significant that this case involves a "traffic violation," and clearly the procedure for handling such charges is different. The Constitution of Alabama, the statutes of this state, and the other laws of the state do not classify a traffic infraction as a serious offense. The law clearly classifies traffic infractions differently, and the Constitution of Alabama, the statutes of this state, and the Rules of Judicial Administration adopted by this Court all put traffic violations in a different category from other offenses.
While the people, by § 6 of their Constitution, have provided that an accused is entitled "to demand the nature and cause of the accusation; and to have a copy thereof" (and while this section applies to traffic cases), I cannot see how this constitutional provision was breached in this case. I am absolutely clear to the conclusion that an improper verification is a waivable defect.
Because of the disagreement in Holloway and the continued disagreement on the Court concerning the requirements of the law regarding the charging of persons who violate the traffic laws, I take this opportunity to state, in more detail, the reason for my dissent in Dison, my concurrence in Holloway, and my dissent once again in this case. In doing that, I will examine Alabama's constitutional provisions as they relate to misdemeanor violations, the statutory provisions, the court rules governing "traffic infraction[s]," and the case law that I think is applicable.
The Alabama constitutional requirements regarding the initiation of criminal proceedings are contained in Amendment 37 to the Constitution of Alabama 1901, which provides, in part:
Under these provisions of the Constitution, no person can be proceeded against by an information,[12] except in certain cases, but the Constitution specifically provides that "the legislature may by law dispense with a grand jury and authorize such prosecutions and proceedings before justices of the peace or such other inferior courts as may be by law established." Of course, Amendment 328 established the Unified Judicial System, and the district court, from which this case arose, is a part of that system. It is clear that the legislature has specifically provided a separate procedure for handling misdemeanor proceedings and has specifically addressed the handling of traffic infractions in a separate part of the Code. See Ala.Code 1975, §§ 12-12-50 through 12-12-55.
The provisions of Ala.Code 1975, Chapter 7 of Title 15, §§ 15-7-1 through 15-7-4, govern the procedures for handling misdemeanor charges generally, but an entirely different procedure is required by the legislature when the offense is a "traffic infraction" and the charge is made by a law enforcement officer, and under Amendment 37 the legislature is empowered to decide how such offenses shall be prosecuted.
The procedure for handling traffic infractions is contained in Ala.Code 1975, §§ 12-12-50 through 12-12-55, which provide, as follows:
As is readily apparent, § 12-12-53 requires that "every law enforcement agency" use the uniform traffic ticket and complaint, "which shall be substantially uniform throughout the state and which shall be issued in books with citations in no less than quadruplicate." (Emphasis added.) *598 Pursuant to this legislative provision, which requires the use of the uniform traffic ticket and complaint, this Court, under its rule-making power,[13] adopted Rule 19, Rules of Judicial Administration, effective April 1, 1977, which, among other things, sets out the actual content of the Uniform Traffic Ticket and Complaint. This form, of course, does include a space for a magistrate's verification,[14] and I make no point of that except to say that I believe the legislature could authorize the commencement of any misdemeanor case by an unverified complaint; therefore, I would have to disagree with any holding that every criminal proceeding must be begun by a verified complaint. I need not discuss that issue in great detail, however, except to say I think that the legislature could authorize the prosecution of violations of the traffic laws by use of a "citation."[15]
*599 Because of the strict requirements of the law for accountability for each ticket issued to a law enforcement agency,[16] there is little chance that an accused will not know what he or she is charged with and the name of the complaining law enforcement officer, because the "traffic citation" is given to the motorist at the time of the arrest by the law enforcement officer making the arrest.
The Court finds that Holloway does not apply and basically adopts Brown's argument that because there appeared to be a proper signature on the ticket, Brown was not put on notice that it was affixed by the use of a rubber stamp,[17] but, to its credit, the majority refuses to accept Brown's "fraud" argument.
The complaint in this case, filed as a class action, is technically nothing more than a common law writ of error coram nobis,[18] and the office of this writ was set forth by the late Judge Aubrey M. Cates, Jr., in a scholarly opinion in Argo v. State, 43 Ala.App. 564, 195 So. 2d 901, cert. denied, 280 Ala. 707, 195 So. 2d 909, cert. denied, 389 U.S. 865, 88 S. Ct. 129, 19 L. Ed. 2d 136 (1967):
During my research, I located the Callahan v. Wallace[19] case used by the majority in support of its opinion, and Callahan, a federal action under a civil rights statute, did permit a class action. I do not think Callahan is similar to this case, but even assuming that it is, I think the majority correctly uses it for the principles of law relating to repayment of fines, etc.
I now come to another very disturbing principle of law announced for the first time in this casethe right of a petitioner to recover attorney fees for his privately retained counsel.
While I do not question the power of this Court to award such fees, I do question how this litigation "resulted in a benefit to the general public." In Callahan v. Wallace, 466 F.2d 59 (5th Cir.1972), cited in support of the award, there was the vindication of a constitutional right. It is my opinion that the release of Ex parte Dison by this Court is what really changed the procedures used by magistrates, not the filing of this suit. In fact, Ex parte Dison formed the basis for this suit; therefore, I cannot agree that counsel performed a great public service.
While I do not agree that this suit should be allowed, I applaud the remedy given insofar as it refuses to set aside the convictions and return the fines. I also agree that our Rule 19, which sets out the form of a traffic ticket, should be verified. Although I question what additional validity the verification gives to the traffic charge, or what further notice a verification gives the defendant over and above what he or she was given by the copy of the ticket given to him or her at the time of arrest, I do agree that a UTTC should be verified. I have remained constant, however, in my opinion that the lack of a verification or an improper verification, is a waivable defect.
Based on the foregoing, I am of the opinion that the judgment of the trial court dismissing the complaint as to each defendant *601 should be affirmed; consequently, I must dissent.
[1] Dison was arrested by an Alabama state trooper for D.U.I. The arresting officer signed the UTTC, but it was not sworn to and acknowledged by a judge or magistrate prior to or during the district court proceedings. Dison was tried in district court, was found guilty, and was fined $200. He appealed to circuit court, where the district attorney filed a separate complaint. Dison moved to dismiss the complaint on the ground that the district court judgment was void, being based upon an unverified UTTC. The circuit judged denied the motion. Dison was found guilty and was fined $200. Id. at 663.
[2] James Clyde Brown was arrested for driving under the influence of alcohol. He was issued a UTTC. Court personnel stamped the clerk's name on the UTTC without proper verification from the issuing officer. Brown appeared in the District Court of Montgomery County and was convicted. He appealed his conviction to the Circuit Court of Montgomery County and was convicted there in a trial de novo.
[3] Duncan was arrested for driving under the influence. He pleaded guilty and paid a fine.
[4] The City of Birmingham intervened in this suit. The trial judge learned during the hearing that an identical suit was pending in Jefferson County (the Tenth Judicial Circuit), and he excluded that circuit when he certified the class.
[5] Subclass A contained those persons whose tickets showed on the face that they were not verified. Generally, Subclass A consisted of those whose tickets did not contain a signature of acknowledgement, such as in Holloway.
[6] The plaintiffs' brief states as follows: "This appeal addresses a significantly smaller sub-class of defendants convicted in Montgomery County District Court onlydefendants who were victims of a fraud upon the Montgomery County District Court which could not have been waived because it was concealed by a fraudulent act which purported to confer jurisdiction upon the court." (Plaintiffs' brief, page 10. See also Plaintiffs' brief, page 3.)
[7] Callahan v. Sanders, 339 F. Supp. 814 (M.D. Ala.1971), and Callahan v. Wallace, 466 F.2d 59 (5th Cir.1972).
[8] State v. Brown, 514 So. 2d 836 (Ala.1987).
[9] In Prince, the report of the case shows the following:
"The defendant demurred to the indictment upon the ground that while it purported to be signed by Benjamin F. Elmore, it was not, as a matter of fact signed by him, but the name `Benjamin F. Elmore' signed to said indictment was written by W.C. Harrison, Jr., and not by Benjamin F. Elmore. At the bottom of this demurrer there was the following statement, which was signed by the defendant's attorney: `And the defendant pleads the above also in abatement to said indictment.' The demurrer was overruled, but the judgment entry does not show that the plea in abatement was passed upon." The Court held:
"It was not essential to the validity of the indictment that it should have been prepared or signed by the solicitor. It `receives its legal efficacy from the finding and return of the grand jury; and the legal evidence of its verity is the return "A true bill," apparent upon some part of it bearing the signature of the foreman.' Holly [Holley] v. State, 75 Ala. 14; Joyner v. State, 78 Ala. 448. Assuming the efficacy of the demurrer interposed to raise this point, it was without merit. Of course, if it was abortive in this respect the same conclusion would follow. It also appears that the facts stated in the demurrer were, by the reference to it, pleaded in abatement, but this plea does not appear to have been brought to the attention of the court, nor was issue joined upon it, nor was any evidence introduced in support of it. We must, therefore, presume that it was abandoned."
[10] He who acts through another acts himself. Black's Law Dictionary 1413 (4th ed. 1968).
[11] The Benson case, I feel, is especially applicable because it involved a situation in which the verifying signature of the foreman of the grand jury was affixed by the clerk to the phrase "a true bill." Benson held at least two things: 1) If the foreman authorized the clerk to sign the foreman's name, it was authentic enough not to void the indictment, and 2) defects in the indictment should be raised before trial rather than after conviction.
[12] An information is a charge presented by a public officer upon his oath of office. In Gunn v. City of Birmingham, 402 So. 2d 1122 (Ala.Cr. App.1981), Judge Harris, writing for the court, explained the office of an information:
"The term complaint, used in this sense, is synonymous with the term information, and is an economical, convenient, and speedy aid to the administration of justice which omits the necessity of a grand jury indictment. Ex parte State, 71 Ala. 371 (1882); see Black's Law Dictionary, 4th Edition Revised, 1968, Complaint, Information defined. The Constitution of Alabama of 1901, Art. I § 8, (amendment # 37), makes specific provisions for the omission of grand jury indictments in the prosecution and proceedings in certain well defined situations. Accordingly, Alabama cases have treated complaints of this nature much the same as if they were indictments and have applied the substantive laws of each interchangeably."
[13] Section 6.11, Amendment 328.
[14] There is nothing in the official minutes of the Court, insofar as I know, to indicate why the Administrative Office of Courts elected to require that traffic tickets be verified. At that time in other jurisdictions, there was increasing use of the "citation," the word used in § 12-12-53, as a means of providing notice to an accused in cases involving misdemeanor or traffic infractions.
Even though official Court records do not contain some of the correspondence surrounding the adoption of Rule 19, I have maintained an independent file in my office, and I include some of it for a better presentation of the point that I make in this dissent.
From time to time the form of the UTTC has been modified or changed by the Court. Rule 19 of the Rules of Judicial Administration adopted the form of the Uniform Traffic Ticket and Complaint, which, according to my records, was first tested in Pike County and was subsequently distributed for use statewide on April 1, 1977, the effective date of Rule 19.
Records in my office indicate that there has always been a space on the ticket for a verification of the charge; therefore, I make no point that Rule 19 does not require verification, only that a defective verification is a waivable defect and does not affect the validity of a conviction, if waived. My recollection concerning the verification requirement is that the Court elected to require verification of the traffic citations, but I am not aware of what efforts were made administratively to educate users of the tickets concerning the point in time at which verification should be made. Clearly, the copy of the ticket given to the offender is not verified, but the failure of an offender to appear as required by the ticket to answer the charge can result in a warrant of arrest being issued. The Dison decision, of course, was an impact decision, and my files indicate that the Administrative Office of Courts has, from time to time, provided administrative assistance in the form of a Uniform Traffic Ticket and Complaint Manual, which was last revised in July 1986, but I have no information concerning what instructions were given to personnel using the UTTC concerning the verification requirement. The latest revised manual contains specific instructions on the accountability of traffic tickets and sets out the offenses that can be charged by a traffic ticket and complaint, and the post-Dison manual contains instructions concerning the verification requirements imposed by that case.
My files also indicate that there was debate among members of the Court at the time concerning changing Rule 19 to apply in all cases involving misdemeanors, not just traffic offenses, but the Court did not adopt such a rule. Some jurisdictions have adopted such a rule and do not require that the arresting officer have the traffic ticket verified. My files indicate that former Chief Justice C.C. "Bo" Torbert, Jr., corresponded with Carl F. Bianchi, administrative director of the courts for the State of Idaho, and was advised that in Idaho, by court rule, "the citation may be used without a complaint to prosecute any misdemeanor." (Emphasis added.) Letter from Bianchi to Torbert, dated August 1, 1980.
[15] "Citation" is defined in Black's Law Dictionary 309 (4th ed. 1968), as follows:
"A writ issued out of a court of competent jurisdiction, commanding a person therein named to appear on a day named and do something therein mentioned, or show cause why he should not. Proctor, Prac. Sheldon v. Sheldon, 100 N.J.Eq. 24, 134 A. 904, 907. An order or summons by which a defendant is directed or notified to appear. Adams v. Citizens Bank, 136 So. 107, 109, 17 La.App. 422; Burrage v. Hunt Production Co., Tex.Civ.App., 114 S.W.2d 1228, 1239. The act by which a person is so summoned or cited.
"It is usually original process in any proceeding where used, and in such respect is analogous to a writ of capias or summons at law and subpoena in chancery. Gondas v. Gondas, 99 N.J.Eq. 473, 134 A. 615, 618.
"As the act of the court through its proper officer commanding the appearance of defendant at the time and place named to answer to plaintiff's petition, it has the dignity of official character and weight of superior authority. Moran Oil & Gas Co. v. Anderson, Tex.Civ.App., 223 S.W. 1031, 1032. It is used in this sense, in American law, in the practice upon writ of error from the United States supreme court, and in the proceedings of courts of probate in many of the states. Duties v. Durfee, 293 Mass. 472, 200 N.E. 395, 397; Schwartz v. Lake, 109 La. 1081, 34 So. 96.
"It is also the name of the process used in the English ecclesiastical, probate, and divorce courts to call the defendant or respondent before them. 3 VI.Comm. 100; 3 Steph. Comm. 720. And in Scotch practice it is the calling of a party to an action done by an officer of the court under a proper warrant; the service of a writ or bill of summons. Paters. Comp."
[16] To prevent the improper issuance of traffic tickets, and to prevent a law enforcement officer or other person from tearing up a ticket, there are strict accountability requirements in the statutes and in Rule 19 for each and every Uniform Traffic Ticket and Complaint "issued to law enforcement officers." See § 12-12-54 and Rule 19(a)(5).
[17] Brown's actual argument in his brief is:
"In City of Dothan v. Holloway, 501 So. 2d 1136 (Ala.1986), this Court held that the absence of a magistrate's signature upon a UTTC is a waivable defect, and in Brown I, supra, this Court followed Holloway to a conclusion that Sub-Class A (composed of defendants similar to Holloway) was similarly barred from recovery in this class action.
"This appeal addresses a significantly smaller sub-class of defendants convicted in Montgomery County District Court onlydefendants who were victims of a fraud upon the Montgomery County District Court which could not have been waived because it was concealed by a fraudulent act which purported to confer jurisdiction upon the court. It also returns the Court's attention to a narrow exception to its holdings in Holloway and Brown I, recognized in Cherry v. State, 491 So. 2d 1003 (Ala.1986), as applicable to `wrongdoing or mischief on the part of a person pretending to be a magistrate."
But even assuming that the ticket was required to be verified before it was accepted for filing and disposition, there is nothing in this record to show that a "fraud" was practiced on the court, and there is certainly nothing to support Brown's arguments in his brief that "[s]ubject matter jurisdiction was never obtained by the District Court of Montgomery County, Alabama," and that "[a] fraud apparent neither to the district court nor [to] the members of Sub-Class B prevented each member of this sub-class from having an opportunity to consider waiving the jurisdictional defect which was occasioned by forgery by a mysterious woman whom Jewel Ryals could identify only by her misdeed." Jewel Ryals, whose name is on the ticket as the officer before whom the ticket was verified, admitted in sworn testimony, which appears in the record, that before the decision of this Court in Dison a young lady in her officer used "my stamp to put my name on there." Of course, Brown's characterization in his brief of the testimony that there was a "forgery by a mysterious woman whom Jewel Ryals could identify only by her misdeed," is not a fair characterization of her testimony. The record shows that Ryals actually testified as follows:
"Q. How did you signature come to be affixed to this ticket?
"Mr. Maddox: Object, Your Honor.
"The Court: Overruled. If she knows. If you don't know, you don't know. Do you know how it came to be affixed?
"The Witness: Oh, yes.
"The Court: Okay. Go ahead and answer.
"The Witness: The young lady, uhI was trying to think of who she is. Right there, (indicating) She uses my stamp to put my name on there."
Clearly, this testimony shows that Ryals knew the person she had authorized to put her name on the tickets.
[18] Temporary Rule 20, Alabama Rules of Criminal Procedure, which now controls all post-conviction proceedings, had not been adopted when this case was filed.
[19] 466 F.2d 59 (5th Cir.1972). | May 11, 1990 |
2cca571c-e2b1-43f2-a7a9-2682c8443ec3 | Riggs v. Bell | 564 So. 2d 882 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 882 (1990)
Larita RIGGS
v.
Dick BELL and Birmingham Metropolitan Area Skills Center.
88-1379.
Supreme Court of Alabama.
May 4, 1990.
*883 Alicia K. Haynes, Birmingham, for appellant.
James W. Porter II, Birmingham, for appellees.
KENNEDY, Justice.
The plaintiff, Larita Riggs, appeals from a summary judgment in favor of the defendants, Dick Bell and the Birmingham Metropolitan Area Skills Center ("BMASC"). We affirm.
The issue is whether, in opposition to the defendants' motion for summary judgment, Riggs presented evidence creating a genuine issue of material fact on the question whether the defendants were entitled to sovereign immunity under Article I, § 14, Alabama Constitution of 1901.[1]
The factual evidence presented to the trial court was as follows: The BMASC is an arm or agency of the State of Alabama Department of Post Secondary Education ("ADPSE"), which, in turn, is an agency of the Alabama State Board of Education. All employees of BMASC are employees of the State of Alabama. ADPSE approves the hiring/firing of all BMASC personnel and approves the BMASC budget. The BMASC is a non-profit organization that provides job training and skills instruction to economically disadvantaged students, and it is funded through the federal Job Training Partnership Act. BMASC receives no state funds; however, federal funds are allocated through the State of Alabama Office of Employment and Training.
Dick Bell was employed as one of four instructors at BMASC; Carol Dotson was his supervisor. Bell was an instructor of building maintenance and had several types of machinery under his direction and control, including a radial arm saw, a band saw, a lathe, a sander, and a table saw. In his capacity as instructor, Bell had full discretionary authority to direct the operation of all mechanical equipment in his department. Bell determined who would operate the machines, when those machines would be operated, how those machines would be operated, and in what manner those machines would be operated.
In 1986 Riggs was a student at BMASC; while working on a project there, Riggs severed her thumb from her hand with the blade of the table saw while operating the table saw in the shop. In September 1988, Riggs sued Bell and BMASC for damages based on that injury. Bell testified in his deposition that the students were supposed to obtain his approval before operating the table saw; that Riggs was operating the table saw without his permission when the accident occurred; and that Riggs had not previously operated the table saw in his presence. Bell was not present in the shop when the accident occurred; he was in his office, which was a separate room adjacent to the shop.
Riggs alleged that BMASC was an "occupational training organization doing business in the State of Alabama"; that the defendants had allowed the premises to be unreasonably safe and in doing so had acted negligently and wantonly; that Bell had failed to properly instruct and/or supervise her on the proper operation of the saw; that Bell had negligently entrusted the operation of the saw to her; and that Bell had done so while acting within the line and scope of his employment with BMASC.
Bell and BMASC moved for summary judgment on the grounds of sovereign immunity and offered in support of their motion, inter alia, the affidavit of Henry Rookis, executive director of BMASC, and the depositions of Rookis and Bell.[2] Riggs filed in opposition thereto a brief, unsupported by any affidavits or other evidence. Riggs argued to the trial court that "there *884 exist genuine issues of material fact which remain in dispute"; that BMASC was a "quasi-public franchise developed as a result of federal appropriations"; that "a suit against BMASC would not constitute a suit against the State of Alabama or the State Board of Education, which merely coordinates the federal program"; that Bell had admitted in his deposition that he was "an instructor"; and that "as such [he] falls within the scope of DeStafney v. University of Alabama, 413 So. 2d 391 (Ala.1981)."
After oral argument, the trial court entered summary judgment for Bell and BMASC, based upon the pleadings, discovery responses, depositions, and other matters of record, holding that BMASC was "absolutely immune from suit" pursuant to Article I, § 14, Alabama Constitution of 1901; that Bell was a "supervisory vocational education teacher" at BMASC; and that Bell and BMASC were immune from suit under § 14 and on the authority of Gill v. Sewell, 356 So. 2d 1196 (Ala.1978); Barnes v. Dale, 530 So. 2d 770 (Ala.1988); and Grant v. Davis, 537 So. 2d 7 (Ala.1988). Riggs appealed.
After reviewing the record and considering arguments of counsel, we must agree that Riggs presented no evidence to create a genuine issue of material fact and, thus, that the defendants were entitled to a summary judgment. In Whatley v. Cardinal Pest Control, 388 So. 2d 529, 531-32 (Ala. 1980), this Court succinctly stated the operation of Rule 56, A.R.Civ.P.:
(Emphasis added.)
In this case, we must consider the evidence presented by the defendants to be uncontroverted. Bell and BMASC supported the motion for summary judgment with Rookis's affidavit and deposition and Bell's deposition. Supported by this testimony, the defendants asserted that BMASC was an agency of the State; that Bell had been engaged in a discretionary function as a state employee; and that Bell, in his discretion, had not given Riggs permission to operate the saw. This testimony addressed and effectively negated Riggs's allegations. Riggs did not respond to the motion with contradictory testimony or other evidence creating a genuine issue of material fact on the issues relevant to § 14 immunity. Riggs had to respond to the motion by presenting evidence relevant to the question of whether Bell was performing a ministerial task, rather than a discretionary function. See DeStafney v. University of Alabama, supra. Riggs did not offer in rebuttal any evidence of negligence and/or wantonness on the part of Bell or BMASC creating a genuine issue of *885 material fact. Bell's testimony that Riggs operated the saw without his permission was uncontroverted. Riggs's response amounted to nothing more than argument and verification of facts alleged in the complaint. That, standing alone, does not contradict the evidence presented by Bell and BMASC in support of the motion for summary judgment. Summary judgment is not prevented by "conclusory allegations" or "speculation" that a fact issue exists. Williams v. Palmer, 277 Ala. 188, 168 So. 2d 220 (1964); Charles J. Arndt, Inc. v. City of Birmingham, 547 So. 2d 397 (Ala. 1989). Bare argument or conjecture will not satisfy Riggs's burden to offer facts to defeat the motion. See generally, Thibodeaux v. Holk, 540 So. 2d 1378 (Ala.1989), and Coleman, Summary Judgment in Alabama: The Nuances of Practice Under Rule 56, 20 Cumb.L.Rev. 1 (1989-90).
Applying the law to what we must take as the uncontroverted facts of this case, we hold that the defendants were entitled to immunity from suit under Article I, § 14, Alabama Constitution of 1901. See Phillips v. Thomas, 555 So. 2d 81 (Ala.1989). Accordingly, the trial court properly entered the summary judgment for the defendants, and therefore, that judgment is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and SHORES and HOUSTON, JJ., concur.
JONES, J., concurs in the result.
JONES, Justice (concurring in the result).
To the extent that the complaint alleges that Bell was personally negligent in causing Riggs injury, I do not agree that the immunity defense is applicable. On the other hand, I agree that the evidence presents no triable issue of fact with regard to Bell's personal liability. Therefore, I concur in the judgment of affirmance.
[1] Section 14 provides that "the State of Alabama shall never be made a defendant in any court of law or equity."
[2] The affidavit and depositions provided the basis for the statement of facts presented earlier in this opinion. | May 4, 1990 |
96e89095-0102-45e6-904c-cdf3083370c6 | Ex Parte Brown | 562 So. 2d 485 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 485 (1990)
Ex parte Bradley BROWN, Jr., et al.
(In re J.O. BANKS, et al. v. Paul W. BRYANT, Jr., et al.)
Ex parte Bradley BROWN, Jr., et al.
(In re Bradley BROWN, Jr., et al. v. Paul W. BRYANT, Jr., et al.)
Bradley BROWN, Jr., et al.
v.
Paul W. BRYANT, Jr., et al.
J.O. BANKS, et al.
v.
Paul W. BRYANT, Jr., et al.
88-98, 88-99, 88-120 and 88-121.
Supreme Court of Alabama.
March 2, 1990.
As Modified on Denial of Rehearing May 4, 1990.
*486 Frank M. Bainbridge and Bruce F. Rogers of Porterfield, Schall, Bainbridge, Mims & Harper, Birmingham, for appellants-petitioners.
James J. Jenkins and Sam M. Phelps, of Phelps, Owens, Jenkins, Gibson & Fowler, Tuscaloosa, for respondents.
PER CURIAM.
These cases involve a dispute between the minority and majority stockholders of Greene Group, Inc., a corporate holding company that controls the Greene County greyhound racing track known as "Greenetrack." This Court first heard the dispute over the manner in which the majority stockholders, who are also corporate officers-directors, obtained a contract to manage a newly formed greyhound racing track in Macon County for their wholly-owned entity Pari-Mutuel Management ("PMM"), in Banks v. Bryant, 497 So. 2d 460 (Ala.1986). We held in Banks v. Bryant that the majority stockholders had impermissibly acted in their individual capacities in contracting for the Macon County greyhound track. We ordered an accounting and directed the circuit court to impress a constructive trust in favor of Greene Group, Inc., consistent with the results of the accounting.
The named plaintiffs are minority stockholders and they collectively own 19% of the stock of Greene Group, Inc., a holding company owning all of the stock of its subsidiary, Greene County Greyhound Park, Inc.[1] The defendants, Paul W. Bryant, Jr., Sam M. Phelps, and Dr. A. Wayne May, are the majority stockholders and they collectively own 81% of the outstanding stock. In addition, Bryant is president and chief executive officer of both corporations, Phelps is secretary and general counsel of both corporations, and May is a director and an officer and veterinarian for Greenetrack.
On December 12, 1985, while Banks v. Bryant was on appeal, the minority stockholders filed a second stockholders' derivative action in Greene County, Alabama, styled Brown v. Bryant, against Bryant, Phelps, and May and their newly formed Iowa corporation, Alabama Iowa Management, Inc. ("AIM, Inc."). The minority asserted in this suit that the defendants had obtained for themselves another contract to manage a newly formed dog track in Council Bluffs, Iowa, and that they had again utilized for their own advantage the corporate facilities, expertise, assets, and resources of Greene Group, Inc.
The minority stockholders also sued the law firm of Phelps, Owens, Jenkins, Gibson & Fowler ("the Phelps firm"), alleging a conflict of interest in that the firm had represented both Greene Group, Inc., and Bryant, Phelps, and May individually, in Banks v. Bryant, and that there was a direct conflict of interests between Greene Group, Inc., and the individual defendants. The minority shareholders sought a recovery *487 of $279,362.64 in fees and expenses charged to and paid by Greene Group, Inc., for representing the corporation through trial. The minority alleged that, because of the conflict of interests, the Phelps firm had forfeited its right to compensation from Greene Group, Inc.
An amended complaint was subsequently filed in Brown v. Bryant alleging that the majority stockholders were attempting to "squeeze out" the minority stockholders. As an alternative to direct relief for the minority stockholders claimed from the "squeeze out," the amended complaint sought the appointment of a custodian-special master-conservator to prevent stockholder abuse and for the purpose of fixing fair and reasonable salaries and fair and reasonable dividends for the stockholders. The majority stockholders filed an answer denying that the plaintiffs are entitled to relief. However, the defendants conceded the Iowa opportunity and repaid some of the AIM, Inc., fees to Greene Group, Inc., in connection with the repayment of the Macon venture.[2] The loan fees paid to Bryant, Phelps, and May are a subject of dispute.
The trial judge in Banks v. Bryant consolidated Banks v. Bryant and Brown v. Bryant over the objection of the minority stockholders. The issues in dispute in these consolidated cases were tried in the fall and winter of 1987, concluding on December 16, 1987. The trial judge entered a final judgment on May 25, 1988, which was subsequently withdrawn and replaced by a final judgment dated September 21, 1988, from which the minority stockholders appeal.
The minority stockholders also have filed a petition for a writ of mandamus to compel the trial judge to enter an order consistent with this Court's holding in Banks v. Bryant. This Court authorized the parties to address the petitions for writ of mandamus and the appeals in one set of briefs.
We first address the petitions for writ of mandamus. We have previously held that a petition to this Court for a writ of mandamus is the proper method for bringing before us the question of whether a trial judge, after remand, has complied with our mandate:
Ex parte Ins. Co. of North America, 523 So. 2d 1064, 1068-69 (Ala.1988).
The minority stockholders contend that the trial court did not follow the mandates of this court in Banks v. Bryant and that a writ of mandamus should issue. They state that they seek to compel the trial court's compliance with Banks v. Bryant as follows:
(Minority shareholders' petition, page 6.)
This Court held in Banks v. Bryant as follows:
497 So. 2d 460 at 465. Accordingly, the judgment was reversed and the case was remanded to the trial court with instructions.
We must determine, from the evidence presented, whether the trial court has followed the mandates of this Court on remand. To do so, we must consider our holding stated above against the trial judge's order of September 21, 1988, which reads in pertinent part:
While we acknowledge that our mandate was not as specific as it might have been, the trial court's order on its face shows that the trial judge did not follow the mandate of this Court. We directed that a constructive trust be impressed in favor of Greene Group, Inc. The trial judge, at the request of the defendants, imposed a constructive trust so that funds flowed to Greene Resources, Inc., not Greene Group, Inc., and did this over the objection of the minority shareholders and without hearing any evidence. There is no evidence in the record to sustain the trial judge's actions as being "for business and corporate planning reasons." Greene Resources, Inc., is not a party to these proceedings; Greene Group, Inc., is the corporation in which the minority owns stock and for whose benefit the suit was brought.
We therefore reverse the judgment of the trial court and remand the case for a constructive trust to be imposed in favor of Greene Group, Inc., unless the majority shareholders can demonstrate that the imposition of the trust in favor of Greene Resources, Inc., is identical to what we ordered.
There is also the question of the salaries, dividends, or other distribution of profit over which this Court required an accounting in Banks v. Bryant. The directive to the trial court was "to impress a constructive trust in favor of Greene Group, Inc., consistent with the results of the accounting." Bryant, Phelps, and May repaid the PMM loan fees and portions of the AIM, Inc., fees as required by this Court, representing that the PMM and AIM, Inc., management fees were $13,398,000. However, the trial court did not require that they pay the loan fees.
On December 21, 1984, Bryant, Phelps, and May (sole directors of AIM, Inc.) voted unanimously to pay the loan fees directly to themselves. The fees were paid to them on January 2, 1985, in direct proportion to their stock ownership in AIM, Inc.[3] In addition, Bryant, Phelps, and May collectively received $200,000 as a 5% loan fee in connection with $4 million in additional financing. Again, this amount was divided in direct proportion to their stock ownership in AIM, Inc.[4] The minority claims that the loan fees are disguised dividends to Bryant, Phelps, and May. They argue that it is not just happenstance that the loan fees were paid to them in direct proportion to their stock ownership.
The trial judge refused to impose a constructive trust over the AIM, Inc., loan fees, because Bryant, Phelps, and May gave their personal guaranties in connection with the financing of the Iowa venture. He held as follows:
Bryant, Phelps, and May contend that their personal guaranties were required to secure the loans. They presented the testimony of two bankers involved in processing these loans. Carl Albright of the First National Bank of Tuscaloosa testified as follows:
Because these loans were tied to the individual effort of Bryant, Phelps, and May and would not have been secured without their personal endorsement, we affirm the trial court's judgment as to the AIM, Inc., loan fees.
The trial judge ordered retroactive salaries for Bryant, Phelps, and May in the amount of $1,990,000. The claim for the retroactive salaries was made within a matter of days of their repayment of the constructive trust funds. The additional retroactive salaries claimed for the years 1984 through 1986 equaled $3,382,500, which is $2,782,500 in excess of the amounts actually paid to them.[5] This is despite the fact that Phelps is an attorney in private practice who represents Greene Group, Inc., for a fee, and Dr. May is a full-time veterinarian who, for a fee, performs services for the various tracks.
In his testimony in Brown v. Bryant, Bryant stated:
The trial judge awarded Bryant, Phelps, and May retroactive salaries in his final order of September 21, 1988, and set the 1987 salaries.[6]
*491 We remand the question of retroactive salaries to the trial court. Retroactive salaries should not be awarded unless there is an affirmative showing of actual services rendered to the corporation that would justify the award of such salaries.
A further issue arises as to the amount of interest due to Greene Group, Inc., on the $13,398,000 principal constructive trust funds repaid to Greene Group by Bryant, Phelps, and May on December 30, 1986, pursuant to our order in Banks v. Bryant. It is undisputed that only principal has been paid.
The majority stockholders contend that interest should be computed at 6% simple interest and that no interest is due except from the date the funds were received by them personally as opposed to the date that the management fees were actually received by PMM and AIM, Inc. They calculate the interest due and owing as $422,328.57.
The minority stockholders contend that the appropriate rate is that actually earned by the investment of the funds by Bryant, Phelps, and May while the trust funds were in their control. They present four possible methods for calculating the interest, one of which uses a straight 6% interest calculation. Using three of the methods, which are based on return on the investments, they calculate the interest due and owing as $1,489,944; $1,417,511; or $1,318,428. Using the 6% interest method, compounding interest annually, and adding excess profits, they calculate the interest as $1,248,176.
The majority stockholders presented the testimony of Steve Roy, a certified public accountant. Roy testified that he calculated the interest due at 6%. He admitted that he charged interest only from the date that Bryant, Phelps, and May individually received the funds, as distinguished from the date the funds were actually paid. Roy also testified that he did not calculate any interest on those amounts that Bryant, Phelps, and May allegedly paid as income tax owed as a result of their receipt of trust funds. Although the amounts allegedly paid as income tax total $2,254,240 allegedly paid by Bryant, $814,123 allegedly paid by Phelps, and $452,416 allegedly paid by May, Roy could not testify that these amounts were actually paid. (R. 1032-1033.)
The minority shareholders presented their expert, James L. Hart, also a certified public accountant. He presented his own study of interest computed at the rate of 6%, which, when compounded, totalled $731,276. With adjustments for the excess profits of the defendants, Hart reached a total interest due of $1,248,176. (C.R. 442.)
We hold that the interest due and owing should be calculated using a 6% rate of interest, compounded annually from the date Bryant, Phelps, and May received the funds. Ala.Code 1975, § 8-8-1.
We next address the question of whether the majority stockholders have, by their actions, impermissibly squeezed out the minority stockholders.
In Burt v. Burt Boiler Works, Inc., 360 So. 2d 327 (Ala.1978), this Court stated as follows:
360 So. 2d 327, 331-32.
In Galbreath v. Scott, 433 So. 2d 454 (Ala.1983), this Court discussed the opportunities that majority shareholders in a closely held corporation have to "squeeze out" the minority's voice in the operation of the business:
433 So. 2d at 457.
O'Neal's Oppression of Minority Shareholders, § 3.02, describes squeeze out techniques as follows:
F.H. O'Neal and R. Thompson, O'Neal's Oppression of Minority Shareholders § 3:02 (2d ed.1985).
The minority stockholders make a number of factual claims that they assert show the majority's attempt to squeeze out the minority. The majority stockholders contend there has been no "squeeze out" and that the minority wants to substitute its business judgment for that of the majority. They argue that they have met the "reasonable expectations" for the minority stockholders by the increase in the value of the stock. Each minority shareholder paid $25.00 per share of stock in Greene Group, Inc., when it was formed in 1977. The corporation purchased stock from some of the minority shareholders in December 1986, for an average price of $4,583 per share. Using this price,[7] the majority calculates the original $5,000 investment of plaintiff Bradley Brown as being worth $916,600 on December 31, 1986, and far more now.[8] The majority's contention seems to be that the minority has no cause to complain of a "squeeze out," and should not care whether there are dividends, since the stock has increased so greatly in value. The fact, however, that the stock has increased in value is no answer to the charge of systematic squeeze out of the minority.
An examination of the record shows that the majority stockholders have systematically moved to squeeze out the minority stockholders, in that the majority stockholders have removed all minority stockholders from all positions as officers and directors;[9] have eliminated cumulative voting; voted a raise for Bryant, Phelps, and May in 1987 which was a marked increase from previous years;[10] have sought for themselves individually corporate opportunities in Macon County, Alabama, and in Iowa; have paid inadequate dividends or failed to pay dividends; have cancelled the *494 minority stockholders' right to use the recreational farm, Thisildu, in Greene County; and have cancelled the preemptive rights of shareholders.[11]
The minority has made an affirmative showing that the majority has systematically sought to squeeze out the minority. The failure to pay adequate dividends when so much income is being made by the corporation and the salaries for Bryant, Phelps, and May are being raised is prima facie evidence of a squeeze out. The board of directors of a corporation, acting through the officers, is entitled to conduct the business of the corporation for the mutual profit of all of the stockholders. The minority is not entitled to any special privilege, but it is entitled to fair treatment in the corporate decision-making process. We direct the trial court on remand to determine whether the majority has acted in the best interest of all the stockholders or whether its decisions were made for the purpose of squeezing out the minority, as the bare facts seem to suggest. If the trial judge determines that the rights and interests of the minority stockholders have been prejudiced by the actions of the majority stockholders, he shall determine and fix an amount necessary to compensate the minority for this breach of duty owed them by the majority. F.H. O'Neal and R. Thompson, Close Corporations § 9:30 (3rd ed.).
We now consider the question of attorney fees for both majority and minority counsel.
The record reflects that the Phelps firm was paid $279,362.64 as attorney fees and expenses by Greene Group, Inc. This payment was authorized by the majority stockholders of Greene Group, Inc. We first look at the question of the attorney fees paid to the Phelps firm. The minority stockholders contend that the dual representation of both Greene Group, Inc., and the named defendants by the Phelps firm was a glaring conflict of interests and that the firm has therefore forfeited any right to attorney fees. The minority argues that this law firm's efforts have always been and continue to be directed toward the best interests of Bryant, Phelps, and May and adverse to the best interests of Greene Group, Inc., and that the majority shareholders should pay the fees. Therefore, they contest the trial judge's order allowing payment of one-half of the attorney fees as being inequitable as well.
The Phelps firm argues that "[t]o the extent that claims against Greene Group, Inc. were asserted in either Banks v. Bryant or Brown v. Bryant, the corporation was and is entitled to defend itself." The majority stockholders argue that they are entitled to make reasonable business judgments and to have the corporation defend the judgments they make. They cite us to Code 1975, § 10-2A-21, and contend that this Code section provides that an award of attorney fees may be made in cases exactly like this.
Section 10-2A-21, Code 1975, reads as follows:
The trial court on the re-trial of the case provided that the fees be split equally between Greene Group, Inc., and Bryant, Phelps, and May. In light of Alabama statutes under which a corporation may indemnify its officers, we affirm the judgment of the trial court as to the attorney fees for counsel for the majority.
The second question before us is the question of reasonable attorney fees for counsel for the minority stockholders. The trial judge's order of September 21, 1988, set attorney fees for minority counsel and stated in pertinent part:
In Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala. 1985), this court spoke to the issue of attorney fees. We noted that Alabama follows the "American rule":
The case of Peebles v. Miley, 439 So. 2d 137 (Ala.1983), involved "the sensitive issue of how reasonable attorney's fees are determined." Id. at 138. In Peebles we set forth the yardsticks to be used by our courts in determining reasonable attorney fees. The first six factors cited were set forth by Justice Somerville over 77 years ago:
Peebles, 439 So. 2d at 140, quoting Faulk & Co. v. Hobbie Grocery Co., 178 Ala. 254, 59 So. 450 (1912). Forty years later, Justice Simpson added as an additional factor "that in determining a reasonable attorney's fee, the trial judge should take into consideration the reasonable expenses incurred by the attorney." Id. See King v. Keith, 257 Ala. 463, 60 So. 2d 47 (1952).
Peebles adopted an additional five factors from the American Bar Association's Model Code of Professional Responsibility, DR 2-106(B) (1982):
439 So. 2d at 141. The 11 factors set out in Peebles are the factors to consider in determining a reasonable attorney fee.
Reynolds involved a 7-figure fee, and this Court studied 21 cases, which were included in an appendix to the opinion in that case, as a means to determine a reasonable attorney fee by comparison with fees customarily charged in various jurisdictions for similar legal services. We said as follows:
471 So. 2d 1238, 1245.
Counsel for the minority stockholders contend that their attorney fees should be based upon a percentage (20%) of the successful "common fund" recovery achieved for Greene Group, Inc., as a result of this shareholders' derivative litigation. The majority argues that the trial court's total award of $967,322.31 in attorney fees and expenses is not unreasonable and inadequate as a matter of law and should be affirmed.
In support of their position, counsel for the minority offered the testimony of Frank M. Bainbridge, lead attorney for the minority, and four other attorneys. Each of these witnesses testified that a reasonable fee for the minority's counsel would be 20% of the common fund recovery to date and 20% of any future common fund recovery, as and when paid.
In support of their position, counsel for the majority presented five attorneys. All testified that the fee award should be based upon the time expended and some multiplier of hourly rate, which is known as the "lodestar" approach.
We have reviewed the evidence carefully and find that this stockholders' derivative action is a "common fund" case. Therefore, counsel for the minority is due to recover 20% of the common fund presently due to be paid over to Greene Group, Inc., through December 1989. We remand the case to the trial judge to determine a fair and appropriate percentage amount, if any, to be awarded to minority counsel based on the future sums due to Greene Group, Inc., as a result of the minority counsel's representation of minority stockholders. We have weighed the evidence presented to the trial court against the factors enunciated in Peebles and Reynolds, as well as Mashburn v. National Healthcare, Inc., 684 F. Supp. 679 (M.D.Ala.1988); and Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). The testimony, *497 examined in light of these factors, supports the award of 20% of the common fund due through December 1989, and an award of future sums if any, as determined by the trial judge. We therefore reverse and remand as to the attorney fees for minority counsel.
88-98 WRIT GRANTED.
88-99 WRIT GRANTED.
88-120 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
88-121 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
MADDOX, JONES, SHORES, ADAMS and KENNEDY, JJ., concur.
ALMON, HOUSTON and STEAGALL, JJ., concur in part and dissent in part.
HOUSTON, Justice (concurring in part and dissenting in part).
I concur with the majority on part I; that portion of part II that affirms the trial court's judgment as to loan fees; part III; and that portion of part V that affirms the decision of the trial court as to the award of attorney fees to counsel for the majority stockholder defendants.
I dissent as to part IV ("squeeze out"), and I dissent from the reversal as to the award of attorney fees to counsel for the minority stockholder plaintiffs. I believe that the record contains sufficient evidence to justify the trial court's award of retroactive salaries, and I would not remand for additional evidence on this issue.
I dissented in part in Banks v. Bryant, 497 So. 2d 460 (Ala.1986). The basis for my dissent on these issues in the present case is substantially the same as it was in the earlier case:
497 So. 2d at 465-66.
As I understand the majority's concept of the squeeze out principle, it is that "controlling shareholders and directors" must not attempt to "eliminate minority shareholders or to deprive them of their proportionate rights and powers without a just equivalent," and that the controlling stockholders must not exercise their powers arbitrarily or without regard to the "legitimate expectations of the minority shareholders." Burt v. Burt Boiler Works, Inc., 360 So. 2d 327, 331-32 (Ala.1978). Controlling stockholders must not force the minority stockholders into a position of "holding stock that pays no dividends and which cannot, as a practical matter, be sold" and must not deprive minority stockholders of their just share of the corporate gains. Galbreath v. Scott, 433 So. 2d 454, 457 (Ala.1983). I have no disagreement with this as a legal concept of "squeeze out." The facts must then be sifted and weighed by the trier of fact, whose decision we must affirm if "under any reasonable *498 aspect, it is supported by any credible evidence." Banks v. Bryant, supra.
These facts were before the trial court:
Greene Group, Inc., showed an annual percentage increase in stock value of 1,870%; a percentage increase in stock value for the period of comparison (March 3, 1977, to December 31, 1986) of 18,232%; and in terms of dollars per share, an increase in stock value from $25.00 per share to $4,583.00 per share. Jim Hart, the accounting expert for the minority stockholder plaintiffs, testified that he knew of no other company that had as great a growth rate in stock value as Greene Group, Inc., did during this period.
There was evidence that retention of corporate earnings and reinvestment of these earnings in Greene Group, Inc., produced this growth in stock value, and that publicly traded companies that had significant increases in stock value during this period followed this business practice. Numerous examples of publicly traded growth companies were shown to the trial court. The Alabama based companies of Kinder-Care, Inc., Bruno's, and Russell Corporation had the largest increases in stock values of all companies compared, with the exception of Greene Group, Inc. For the comparison period (March 3, 1977, to December 31, 1986), Kinder-Care, Inc., had an annual growth rate or increase in stock value of 259% each year (1,611% less than Greene Group, Inc.); Russell Corporation had an annual growth rate or increase in stock value of 200% (1,670% less than Greene Group, Inc.); and Bruno's had a 177% increase (1,693% less than Greene Group, Inc.). Over the same period, the total percentage increase in stock value for Kinder-Care, Inc., was 2,400% (15,832% less than Greene Group, Inc.); for Russell Corporation was 1,995% (16,237% less than Greene Group, Inc.); and for Bruno's was 1,461% (16,771% less than Greene Group, Inc.). In terms of dollar value increase, after adjustment for stock splits, Kinder-Care, Inc., went from a value of $9.75 per share to $231.15 per share; Russell Corporation moved from $8.00 per share to $164.00 per share; and Bruno's increased from $15.50 per share to $242.00 per share; and Greene Group, Inc., increased from $25.00 per share to $4,583.00 per share.
The minority stockholders have received dividends. The undisputed evidence is that for each $1,000.00 invested by the minority stockholders, they were paid $2,700.00 in dividends from March 3, 1977, through 1987. Dividends will be discussed in more detail later in this opinion, but the minority stockholders have been paid substantial dividends.
What other expectations could minority stockholders have had when they purchased their stock? Employment by the corporation? The evidence showed that at the time the corporation was formed, plaintiff Bradley Brown, Jr., was the owner and operator of the famous "Cotton Patch" restaurant; Phillip B.M. Banks operated Banks and Company, a building supply business; William W. Humphries was president *499 of Merchant's Bank in Eutaw, Alabama; A.R. and Estelle Taylor were in a business that manufactured hardwood plywood for the cabinet industry; Vesta L. Smith was not an original stockholder but holds the stock purchased by her deceased husband; and J.E. McCampbell was an employee of Greene County Greyhound Park, Inc., at the time of trial and had been since Greenetrack opened. There is no evidence that any of the minority stockholder plaintiffs, who are not employed by the corporation, had, at the time they entered into this most profitable venture, any reasonable expectation of employment by the corporation that was thwarted by the majority stockholder defendants.
So what does the majority find as evidence of squeeze out that is so compelling that it concludes that the trial court's finding was plainly and palpably wrong?
The majority finds that the majority stockholder defendants have "paid inadequate dividends or failed to pay dividends." The facts before the trial court showed that the following dividends were paid:
There was evidence that the dividend had historically increased at the rate of approximately $2.50 per share, per year, and that the dividend in 1987 was $17.50 per share, which represented a 70% return on the original investment for that year. The trial court could have found that the dividends were not inadequate or abusive, particularly with management following a business philosophy of retention and reinvestment of earnings that has produced extraordinary growth in the value of the stock. I cannot hold that the trial court plainly and palpably erred in not finding that this was evidence of a "squeeze out."
The majority finds that the majority stockholder defendants "have removed all minority stockholders from all positions as officers and directors."
The trial court could have found from the evidence that J.C. Poole, Jr., and J.O. Banks were directors of Greene Group, Inc., or its predecessor at one time. Poole voluntarily resigned for a personal business reason, and Banks was not reelected because he had serious health problems that affected his ability to function as a director. No plaintiff was ever an officer or director of Greene Group, Inc. I am not persuaded by the majority's assertion that this made the trial court's factual finding of no squeeze out plainly and palpably wrong.
The majority stockholder defendants "have removed cumulative voting." I am not sure that this in and of itself is evidence of a squeeze out; however, I do not believe that cumulative voting was ever authorized. Ala.Code 1975, § 10-2A-53(d), provides that "if cumulative voting is authorized by the articles of incorporation," then cumulative voting for directors is allowed. The articles of incorporation of Greene Group, Inc., never provided for cumulative voting for directors. The by-laws provided for cumulative voting, but not the articles of incorporation. The by-laws were amended to conform to the articles of incorporation and § 10-2A-53(d). The plaintiffs never had this right, so how can we hold that the trial court was plainly and palpably wrong in not finding that the removal of cumulative voting was evidence of a "squeeze out."
*500 The majority stockholder defendants "voted a raise for Bryant, Phelps, and May in 1987 which was a marked increase from previous years."
After hearing the evidence of experts, the trial court set retroactive compensation and compensation for the year 1987. In its final judgment, the trial court wrote:
These findings are supported by the evidence, particularly the testimony of Dr. Clyde Scott of the School of Business of the University of Alabama. The trial court did not plainly and palpably err in finding that this was not evidence of a "squeeze out."
The majority finds that the trial court plainly and palpably erred in not finding that the majority stockholder defendants had squeezed out the minority stockholder plaintiffs by having "cancelled the minority stockholders' right to use the recreational farm, Thisildu, in Greene County."
I do not believe that this would in and of itself support an action based on an alleged "squeeze out"; however, there was evidence that the minority stockholders' right to use the farm was not "cancelled," but that a new procedure was implemented to allow the corporation to know who was using this farm. I cannot hold that the trial court plainly and palpably erred in not finding that this was evidence of a squeeze out.
The majority finds that the cancellation of the preemptive rights of stockholders is evidence of a squeeze out. This applied to the majority stockholder defendants, who owned over 81% of the capital stock, as well as to the minority stockholder plaintiffs, who owned less than 19% of the capital stock. What the minority was denied, the majority was denied. The percentage of ownership remains the same, and I find no evidence of a cash flow problem that will require the sale of additional capital stock. We should not reverse the trial court for failure to hold that this constituted a "squeeze out."
The majority holds that the trial court plainly and palpably erred in not finding that there was a squeeze out of the minority stockholder plaintiffs.[13] This Court found that there was a usurpation of a *501 corporate opportunity in Macon County, in Banks v. Bryant, supra. Justice Almon and I disagreed, and my dissent, concurred in by Justice Almon, appears at 497 So. 2d at 465. However, in the case at issue, the majority stockholder defendants, in accordance with the reasoning of the majority in Banks v. Bryant, supra, admitted usurpation of corporate opportunities and the trial court fashioned a remedy for that. The minority stockholder plaintiffs should not receive more than the remedy that the trial court has given them for this. Therefore, I cannot hold that the trial court plainly and palpably erred in not also finding that the usurpation of a corporate opportunity entitled the minority stockholder plaintiffs to an additional remedy for "squeeze out."
I am aware of the theorists who advocate renegotiation of the legal contract between a corporation, its stockholders, and its management to reflect the perceived separation between ownership of corporate stock and control of the corporate entity. A.A. Beale and G.C. Means, The Modern Corporation and Private Property (1932); A. Chayes, The Modern Corporation and The Rule of Law in The Corporation in Modern Society (1959); E.S. Herman, Corporate Control, Corporate Power (1981); and R.B. Stevenson, Jr., Corporation and Information (1980). This is a move to have management, not the majority of the stockholders, control the corporate entity. As I understand their argument, it is that the modern stockholder is not an owner of the corporate entity but a rentier ("a man of independent means"; a "holder of an annuity"; or one who "has a small private income ... a small investor," Cassell's French-English English-French Dictionary 639 (Rev. ed. 1981)), who has no rights other than a satisfactory return on his investment and the right to liquidity. I do not subscribe to that legal theory. I subscribe to what I believe is the traditional theory of corporate law, for I view the corporate relationship as one in which the stockholders, as owners of the corporation, control the corporation through their voting power. The majority of the stockholders elect the board of directors and approve fundamental corporate transactions.
In the case at issue, we are not confronted with management of a corporation versus a majority of the stockholders of that corporation. Management is composed of the majority of the stockholders (over 81% of the stockholders); and the actions of the majority of stockholders/management is challenged by the holders of less than 19% of the common stock. Thus, we face the "Madisonian dilemma" in a corporate setting. What rights do minority stockholders have against the majority stockholders who are management? In my opinion, controlling stockholders owe a duty to minority stockholders not "`to eliminate minority shareholders or to deprive them of their proportionate rights and powers without a just equivalent'" and not to arbitrarily deprive them of their "`legitimate expectations.' "Burt v. Burt Boiler Works, Inc., supra. I do not find that the majority stockholder defendants in this case breached that duty; and, therefore, I cannot hold that the trial court was plainly and palpably wrong in finding that the majority stockholder defendants did not eliminate the minority stockholders' rights or powers without a just equivalent and did not arbitrarily deprive the minority stockholders of their legitimate expectations. Any expectations of more than the minority stockholder plaintiffs have received are great expectations beyond legitimacy.
Is the attorney fee of $905,603.00 and expense reimbursement of $61,719.31 set by the trial court unreasonable and inadequate as a matter of law? I have reviewed the briefs and the pertinent parts of the record. I have examined the nature of the attorney/client fee and expense arrangement initially entered into by the minority stockholder plaintiffs and their most competent attorney. I have read that attorney's testimony and the testimony of other attorneys concerning the reasonableness of an attorney fee in this case. I have studied Peebles v. Miley, 439 So. 2d 137 (Ala.1983); Reynolds v. First Alabama Bank of Montgomery, N.A., 471 So. 2d 1238 (Ala.1985); and Blum v. Stenson, 465 U.S. 886, 104 *502 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). Should we apply the common fund doctrine? I question this because of the fee arrangement between the attorneys and the minority stockholder plaintiffs, who were to guarantee payment to the attorneys of certain fees and expenses and be reimbursed if the attorney fees and expenses were paid out of the fund recovered. However, for purposes of this dissent, I will assume that we should apply the common fund doctrine. To me, it is relevant where the common fund came from (100% from the majority stockholder defendants or corporations owned by them) and who benefits from the common fund (in percentage of ownership, the minority stockholder plaintiffs benefit less than 19% and the majority stockholder defendants, from whom 100% of the common fund came, benefit more than 81%).
Considering all of this, did the trial court abuse its discretion in awarding attorney fees to the minority stockholder plaintiffs? I cannot hold that it did, and there is nothing in the majority opinion that in any way changes my mind on this issue.
ALMON, J., concurs.
STEAGALL, Justice (concurring in part and dissenting in part).
I concur with the majority as to part I.
I concur with the majority in that portion of part II that affirms the trial court's judgment as to loan fees; I dissent from that portion remanding the question of retroactive salaries. I agree with the trial court in its holding that it would be inequitable and unjust not to compensate the majority stockholders for their efforts in creating these opportunities for the corporation. I do not believe the trial court was plainly and palpably wrong on this issue.
I dissent as to part III. I agree with the trial court in its holding as to interest due the minority stockholder. I think the only meaningful way to arrive at an equitable decision on interest due is to consider after-tax dollars. I believe the trial court has properly balanced the equities between the parties in this regard.
I dissent as to part IV. I agreed with the majority in Banks v. Bryant, 497 So. 2d 460 (Ala.1986), because I felt that the Macon County transaction was a corporate opportunity. As a result of that decision, the majority stockholders have replaced those funds and included the Iowa opportunity; now they are also required to pay interest and attorney fees. To reverse the finding of the trier of fact on this issue goes too far, in my opinion. I simply cannot agree that minority stockholders who have received substantive dividends and have seen the value of their stock increase approximately eighteen thousand per cent in 10 years are being squeezed out. The phenomenal growth of this activity is, in my opinion, due to the expertise and unique skills of the managers and majority stockholders of this corporation. I would not substitute my judgment for that of the trial court on this sensitive, critical factual issue.
I concur in that portion of part V that affirms the decision of the trial court as to the attorney fees for counsel for the majority. I dissent as to that portion that reverses the award of attorney fees for minority counsel. The trial court heard extensive testimony on the question of attorney fees and, in my opinion, its decision is supported by the evidence.
The standard of review in a case in which the evidence has been presented ore tenus is well settled:
Kershaw v. Knox Kershaw, Inc., 523 So. 2d 351, 356 (Ala.1988) (citations omitted). Here, the trial judge heard conflicting evidence on which reasonable minds could differ. The trial court's findings must, therefore, be "presumed to be a reasonable inference drawn from the evidence." Id. I believe that the trial court's decision was supported by the evidence and that it was not plainly and palpably erroneous.
*503 I, therefore, concur in part and respectfully dissent in part.
PER CURIAM.
OPINION MODIFIED; APPLICATION OVERRULED.
MADDOX, JONES, SHORES, ADAMS and KENNEDY, JJ., concur.
ALMON, HOUSTON and STEAGALL, JJ., concur in part and dissent in part.
[1] The present minority stockholders are: Bradley Brown, Jr.; Phillip B.M. Banks; William W. Humphries; J.E. McCampbell; A.R. and Estelle Taylor; and Vesta L. Smith.
[2] A pre-trial conference was held on February 3, 1987, and the trial judge issued his pre-trial order on May 29, 1987, which states at page 7-8 as follows: "Counsel for defendants have represented to the Court that they consider the precedent established by the opinion of the Supreme Court of Alabama in the Banks case to be controlling upon the litigation in the Brown case. In the Brown case, counsel for defendants have further advised the Court that pursuant to the Banks precedent, all funds received by the corporate defendant, AIM, Inc., and the individual defendants, Bryant, Phelps, and May, and claimed by the plaintiffs in the Brown case, have been paid over to Greene Group, Inc. with the exception of loan enhancement fees and an origination fee to which the defendants, Bryant, Phelps, and May claim entitlement because of the nature of such fees."
[3] $640,000 66.667%
Phelps $213,333 22.222%
May $106,667 11.111%
__________________________
Total $960,000 100%
[4] $133,333 66.667%
Phelps $ 44,444 22.222%
May $ 22,223 11.111%
__________________________
Total $200,000 100%
[5] Retroactive Salaries Sought from Greene Group, Inc.:
1984 1985 1986
Paid Sought Paid Sought Paid Sought
Bryant $200,000 $ 700,000 $200,000 $ 750,000 $200,000 $ 800,000
Phelps -0- $ 225,000 -0- $ 230,000 -0- $ 250,000
May -0- $ 135,000 -0- $ 142,500 -0- $ 150,000
____________________________________________________________________________________
Total $200,000 $1,060,000 $200,000 $1,122,500 $200,000 $1,200,000
Excess Claimed $ 860,000 $ 922,500 $1,000,000
Total Excess Salary Claimed $2,782,500
[6] Salaries Set by Order of September 21, 1988:
1984 1985 1986 1987
Bryant $400,000 $400,000 $625,000 $625,000
Phelps $ 80,000 $ 80,000 $175,000 $175,000
May $ 55,000 $ 55,000 $120,000 $120,000
________ ________ ________ ________
$535,000 $535,000 $920,000 $920,000
[7] The minority contests the "fairness" of this price.
[8] Value of shares (at $4,583 per share) as of December 31, 1986:
[9] At the board of directors meeting on March 26, 1985, Banks, the only minority director, was removed, and no minority stockholder has served since that date.
[10] 1983 1984 1985 1986 1987
Bryant $200,000 $200,000 $200,000 $200,000 $800,000
Phelps -0- -0- -0- -0- $250,000
May -0- -0- -0- -0- $150,000
Windham $ 73,942 $ 96,057 $105,000 $119,652 $118,000
Bradshaw $ 45,000 $ 48,307 $ 52,500 $ 57,192 $ 46,154
___________________________________________________________
Total $318,942 $344,364 $357,500 $379,728 $1,364,154
[11] The board of directors of Greene Group, Inc., on November 10, 1987, passed a resolution to amend Article IV of the Articles of Incorporation, as follows:
"No holder of the stock of any class of the Corporation shall have the preemptive right to purchase his proportion of the issuance of any class of shares including treasury shares of the Corporation."
[12] Attributed to Matthew Henry, 1662-1714.
[13] The majority opinion directs the trial court on remand to determine whether the majority's decisions were made for the purpose of squeezing out the minority. The trial court has made that determination. The trial court specifically found that the majority had "at all times acted in good faith," and "[is] not now and [has] not at any time in the past been guilty of fraud, willful negligence, malice, or bad faith."
Upon motion under Rule 59, A.R.Civ.P., to alter, amend, or vacate the final order and to consider, among other claims, the "tort of `squeeze out,'" the trial court held a hearing that was consented to by the parties; and, thereafter, it entered an order specifically addressing certain claims and then held that the court had carefully considered the other claims, evidence, and exhibits presented by the minority stockholder/plaintiffs, and after such consideration found that they were entitled to no relief. I consider this an adjudication on the claim of "squeeze out"; therefore, for the majority of this Court to remand as to this issue, it must have found that the trial court plainly and palpably erred. | May 4, 1990 |
2ef46928-ca34-4e9c-8c1a-0aa8076223ac | Elmore County Com'n v. Ragona | 561 So. 2d 1092 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1092 (1990)
ELMORE COUNTY COMMISSION, et al.
v.
Barbara RAGONA, individually, and as mother and next friend of Thomas James Ragona, a minor.
89-243.
Supreme Court of Alabama.
April 12, 1990.
G. Houston Howard II of Howard, Dunn, Howard & Howard, Wetumpka, for appellants.
Robert D. Segall, Lee H. Copeland and Gregory L. Davis of Copeland, Franco, Screws & Gill, Montgomery, for appellee.
HOUSTON, Justice.
This is the second time that the parties in this personal injury action have been before this Court. See Elmore County Comm'n v. Ragona, 540 So. 2d 720 (Ala. 1989), where the Court affirmed the $136,750 judgment that had been entered in favor of Ms. Ragona against Elmore County, the Elmore County Commission, Melvin Curlee, and Elzie Mehearg, in their official capacities as Elmore County Commissioners, and Richard Joiner.[1] The Court also noted that "the verdict and judgment will support a recovery by Ms. Ragona against the County defendants only in the amount of $100,000." See 540 So. 2d at 727. Thereafter, the county defendants ("the County") paid $100,000 into the trial court to satisfy the judgment. Ms. Ragona filed *1093 a motion to have the $100,000 released to her and to have post-judgment interest set under Ala.Code 1975, § 8-8-10. The County filed a response to that motion, asserting that $100,000 was the maximum amount that was recoverable from it under Ala. Code 1975, § 11-93-2, and Elmore County Comm'n v. Ragona.
The trial court released the $100,000 to Ms. Ragona and awarded her post-judgment interest in the amount of $32,317.81. The trial court's order reads, in pertinent part, as follows:
"[I]t is Ordered, Adjudged and Decreed:
The County appealed. We affirm.
The following issues are presented for our review:
With regard to the first issue, the County contends that § 11-93-2 and Elmore County Comm'n v. Ragona restrict the maximum amount that is recoverable from it to $100,000 and, therefore, that the trial court erred in its determination that post-judgment interest was recoverable by Ms. Ragona in this case. It also contends that the trial court's determination was erroneous under Ala.Code 1975, § 6-6-722. Ms. Ragona argues, on the other hand, that the trial court had the authority under § 8-8-10 to award her interest on the judgment and that neither § 11-93-2, this Court's previous decision in this case, nor § 6-6-722, prohibits her from recovering that interest. We agree.
Section 8-8-10 reads as follows:
(Emphasis added.)
Section 11-93-2 provides:
(Emphasis added.)
Section 8-8-10 authorizes the payment of post-judgment interest as compensation for the loss of use of money as a result of the nonpayment of a liquidated sum for which liability has already been determined. The County does not argue that this section is inapplicable to judgments against a county. See Jefferson County v. City of Birmingham, 235 Ala. 199, 178 So. 226 (1938). It takes the position, however, that it has already paid into the trial court the maximum amount that is recoverable from it *1094 under § 11-93-2 (i.e., $100,000). Section 11-93-2 limits the recovery of damages against a county to $100,000 for, inter alia, "bodily injury or death." By placing a cap on the recovery of damages for "bodily injury or death," did the Legislature intend to prohibit the recovery of interest on a judgment, when the recovery of that interest would allow a total recovery under the judgment to exceed $100,000? After carefully examining §§ 8-8-10 and 11-93-2, as well as the public policies behind the Legislature's providing for the payment of post-judgment interest under § 8-8-10, and its limiting the liability of local governmental entities under § 11-93-2, we answer this question in the negative.
Section 8-8-10 clearly states that judgments, such as the one obtained by Ms. Ragona, "shall bear interest." As previously noted, this section provides for the payment of post-judgment interest as compensation for the loss of use of money as a result of the nonpayment of a liquidated sum for which liability has already been determined. Section 11-93-2 places a monetary cap on the amount of damages that are recoverable as compensation for the injury or death giving rise to liability. We see nothing in the language of § 11-93-2 to indicate that the Legislature intended to prohibit a judgment creditor of a county from recovering interest on his judgment, even when such a recovery, together with the recovery of damages for bodily injury or death, would exceed $100,000. Had the Legislature wanted to limit the effect of § 8-8-10, it could have easily done so in § 11-93-2. Instead, it appears to us that the Legislature carefully drafted § 11-93-2 with an eye toward balancing the need to maintain the financial pressure imposed on counties by § 8-8-10, which encourages counties, as well as private citizens, to avoid unnecessary litigation and to pay judgments promptly, against the need to protect the counties against devastatingly high judgments that could jeopardize the funding of necessary governmental services or otherwise disrupt fiscal planning, see Ex parte Stanton, 545 So. 2d 58 (Ala.1989) (where this Court held that the disallowance of interest on workmen's compensation judgments would encourage providers of benefits to initiate long delays and frivolous appeals, because the provider might thereby have the benefit of the money for several years without having to pay any interest on it to the claimant once the provider finally did pay the judgment). See, also, Home Indem. Co. v. Anders, 459 So. 2d 836, 841 (Ala.1984), where this Court, quoting with approval the rationale advanced by the Supreme Court of Wisconsin in Stanhope v. Brown County, 90 Wis.2d 823, 842, 280 N.W.2d 711, 719 (1979), stated:
"`We are unwilling to say that the legislature has no rational basis to fear that full monetary responsibility entails the risk of insolvency or intolerable tax burdens. Funds must be available in the public treasury to pay for essential governmental services; taxes must be kept at reasonable levels; it is for the legislature to choose how limited public funds will be spent. It is within the legitimate power of the legislature to take steps to preserve sufficient public funds to ensure that the government will be able to continue to provide those services which it believes benefit the citizenry. We conclude that the legislature's specification of a dollar limitation on damages recoverable allows for fiscal planning and avoids the risk of devastatingly high judgments while permitting victims of public tortfeasors to recover their losses up to that limit.'"
In Lienhard v. State, 431 N.W.2d 861 (Minn.1988), the Supreme Court of Minnesota was faced with a similar issue. In that case, Lienhard sued the State of Minnesota for damages for injuries that he had sustained in a motorcycle accident. A jury returned a verdict in his favor, assessing damages against the state in the amount of $100,000. Lienhard sought to compel payment of the $100,000, plus post-judgment interest. The pertinent portions of the statute sued under, Minn.Stat. § 3.736, were quoted in the Minnesota court's opinion, as follows:
431 N.W.2d at 863. (Emphasis added.) The trial court ruled that the state was not liable for post-judgment interest. The Supreme Court of Minnesota reversed, stating in pertinent part:
We note that two of the cases relied on by the County are distinguishable on the basis of the particular statutory language employed in the law of those jurisdictions from which the cases came, see Berek v. Metropolitan Dade County, 422 So. 2d 838, 839 (Fla.1982) ("[n]either the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $50,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $100,000," quoting § 768.28(5), Florida Statutes (1979)), and Turner v. Collins, 390 A.2d 537, 539 (Me.1978) ("[a]ny recovery... shall not be in excess of $250,000 including costs," quoting a "1975 Legislative Resolve"). In Lee v. Colorado Department of Health, 718 P.2d 221 (Colo.1986), also relied on by the County, the Supreme Court of Colorado construed § 24-10-114 of the Colorado Governmental Immunity Act as prohibiting a recovery of interest on a judgment against a public entity when the recovery of the interest would cause the total recovery against the public entity to exceed the statutory limits, unless, as provided in the act, the public entity has liability insurance that would cover the excess. The applicable portion of § 24-10-114 was set out in the Colorado court's opinion as follows:
718 P.2d at 225. The Colorado Supreme Court's interpretation of § 24-10-114, which, arguably, is similar to § 11-93-2, may be persuasive authority supporting the County's position. We believe, however, that our interpretation of § 11-93-2 comports with the intent of the Alabama Legislature.
*1096 We also note that this Court's statement in Elmore County Comm'n v. Ragonathat Ms. Ragona's judgment would support a recovery against the County only in the amount of $100,000must be read in context with other portions of the opinion. The full paragraph in which that statement appears, and the paragraph immediately preceding it, read as follows:
540 So. 2d at 727. (Emphasis in original.) The issue presented in the present case was not before this Court in Elmore County Comm'n v. Ragona, and this Court's decision in that case in no way supports the County's contention that post-judgment interest is not recoverable by Ms. Ragona.
Likewise, we are not persuaded by the County's contention that the trial court's order was erroneous under § 6-6-722. That section provides:
The County's brief, in pertinent part, reads as follows:
Section 6-6-722 provides a remedy to a creditor of a county when the "county treasurer or other custodian of funds fails, on demand and without good excuse, to pay an allowed claim against the county when there are funds in the treasury to pay the same." An "allowed claim" is one that has been properly presented to, and allowed by, the county commission. Caldwell v. Dunklin, 65 Ala. 461 (1880). Ms. Ragona presented her claim to the County, in proper form, and the County disallowed that claim. After Ms. Ragona secured her *1097 $100,000 judgment, and after this Court's decision in Elmore County Comm'n v. Ragona, the County paid $100,000 into the trial court to satisfy the judgment. The trial court later released those funds to Ms. Ragona and, pursuant to her motion, awarded her post-judgment interest in the amount of $32,317.81, under § 8-8-10. Section 6-6-722 did not require Ms. Ragona to "[register] her judgment with the County Commission" as a prerequisite to her obtaining an award of post-judgment interest. Interest on the judgment was authorized by the Legislature in § 8-8-10, and the County had no authority to disallow Ms. Ragona's claim for that interest.
The County's reliance on Edmundson v. DeKalb County, 51 Ala. 103 (1874), and Vincent v. Gilmer's Executor, 51 Ala. 387 (1874), is misplaced. In Edmundson, the Court held that the judgment creditor could not collect his judgment by way of a garnishment action against the county. The Court reasoned that to allow funds to be drawn from the custody of the county treasurer by process of garnishment, founded on a judgment against the county, would interfere with the order in which payment of claims was to be made under statute and would destroy the rights of those who had properly presented and registered their claims. The Court stated:
51 Ala. at 106. Edmundson should not be read as imposing a duty on a judgment creditor to register his judgment with a county commission as a prerequisite to obtaining an award of post-judgment interest. In Vincent, the issue was whether the claim against the county, which had been audited and allowed by the Court of County Commissioners, bore interest from the day of its allowance to the day of its payment by the county treasurer. The Court held that it did not. Neither Edmundson nor Vincent supports the County's position.
Having determined that post-judgment interest is recoverable by Ms. Ragona, we must consider the second issue presented by the Countywhether the trial court erred in computing that interest. The County contends that the trial court computed the interest from October 16, 1986, the date that the trial court entered its judgment on the jury's verdict, to a date after the $100,000 was paid into the court, and that this computation resulted in an award of post-judgment interest to Ms. Ragona in excess of the amount allowed by law. We disagree.
The jury returned its verdict in favor of Ms. Ragona against all of the defendants on October 3, 1986, and the court entered a final judgment on that verdict on October 16, 1986. The record and briefs indicate that the parties agree that the interest did not begin to run on the date of the jury's verdict. See Beam v. Alabama Power Co., 510 So. 2d 185 (Ala. 1987). It appears to us that the trial court properly awarded Ms. Ragona interest from October 16, 1986.[2] It also appears to us that the trial court properly computed interest for the period of time that lapsed between the payment of the $100,000 into the court and the release of that money to Ms. Ragona. On May 17, 1989, the County filed a document in the trial court entitled "Satisfaction of Judgment," along with its payment. That document reads as follows:
The following day, Ms. Ragona moved the trial court to release the $100,000 to her and to set post-judgment interest. That motion reads as follows:
(Emphasis in original.) On June 27, 1989, the trial court entered its order releasing the $100,000 and awarding post-judgment interest through that date. The County contends that it properly paid the $100,000 into the court on May 17, 1989, and that Ms. Ragona could have accepted the money on that date. Therefore, it argues, it should not be required to pay interest on the judgment after May 17, 1989. Ms. Ragona contends that her acceptance of the $100,000, under the condition stated by the County, would have constituted an accord and satisfaction and, therefore, that she would have been precluded from later recovering the interest. Ms. Ragona takes the position that, under the circumstances, the payment of the $100,000 into the court did not toll the running of interest on the judgment.
Interest runs on a judgment until the judgment is paid. § 8-8-10; Hunt v. Ward, 262 Ala. 379, 79 So. 2d 20 (1955). The payment of money into the court is a proper means of satisfying a judgment. In the present case, however, the County, by paying the $100,000 into the court as full satisfaction of the judgment, sought to satisfy not only Ms. Ragona's claim that had been liquidated by the judgment (i.e., $100,000), but also her unliquidated claim for post-judgment interest. Had Ms. Ragona accepted the $100,000, an accord and satisfaction would have resulted and the interest would not have been recoverable. See O'Neal v. O'Neal, 284 Ala. 661, 227 So. 2d 430 (1969); Boohaker v. Trott, 274 Ala. 12, 145 So. 2d 179 (1962); see, also, 1 Am.Jur.2d Accord and Satisfaction, §§ 6, 21 (1962). Even though the $100,000 was paid by the County into the court, the condition that was attached to its acceptance placed it out of the reach of Ms. Ragona, until the trial court ordered its release on June 27, 1989.
We note that the County's reliance on Thomas v. Liberty National Life Ins. Co., 368 So. 2d 254 (Ala.1979), is also misplaced. In that case, Thomas, the beneficiary under four industrial life insurance policies, sued Liberty National to recover interest on the face amount of the policies accruing between the dates when proof of loss was submitted and when the face amount of the policies was paid. The trial court entered a summary judgment for Liberty National on the ground that Thomas was precluded, as a matter of law, from recovering the interest on the policies because he had previously accepted payment of the principal. This Court reversed the judgment, rejecting Liberty National's contention that the statutory provision sued under, Ala.Code 1975, *1099 § 8-8-8, did not create a contract right to the interest and, therefore, that the claim for the interest did not constitute a distinct claim recoverable by Thomas after her acceptance of the principal amount under the policies. This Court stated, in pertinent part, as follows:
"`The law existing at the time of the issuance of this policy entered into and became a part of the contract, and under the provisions of the foregoing statute we think interest was demandable from the time the policy was due and payable by virtue of the contract entered into.'" (Emphasis added [in Thomas].)
"`Where interest is provided for by contract and is due and payable, it constitutes a specific claim for which an independent action may be brought... On the other hand, where interest is recoverable otherwise than under contract, it does not constitute a distinct claim and can only be recovered with the principal by action.'
368 So. 2d at 258-59. Relying on Thomas, the County contends that a claim for post-judgment interest under § 8-8-10 is a distinct claim that may be pursued in an action after acceptance of payment of the judgment. Assuming this to be true, the right to maintain an action for interest under such circumstances is, nonetheless, unavailing if the right to the interest has been relinquished through an accord and satisfaction. Therefore, contrary to the County's assertions, Ms. Ragona could not, under its interpretation of this Court's decision in Thomas, have accepted the $100,000 and, thereafter, recovered interest on the judgment under § 8-8-10. It should be noted that in Thomas, Liberty National did not contend that the principle of accord and satisfaction was applicable. In any event, the Court stated that the principle could not be invoked to bar Thomas from recovering her interest. The Court's statement was prompted by the fact that Liberty National never disputed that interest began to run from the time proof of death was submitted and the fact that Liberty National apparently did not place any conditions on Thomas's acceptance of the principal. The Court provided further insight into its statement regarding the applicability of the principle of accord and satisfaction when it noted that the principle would be a "more viable" defense to an action seeking interest after the acceptance of the principal if both parties were equally aware of their rightsthe implication being that while Liberty National was aware of its statutory obligation to pay the interest at the time it paid the principal, Thomas was not.
For the foregoing reasons, the judgment is affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, ALMON, SHORES, ADAMS, STEAGALL and KENNEDY, JJ., concur.
[1] The Court held that the trial court did not err in refusing to reduce the judgment to $100,000 pursuant to Ala.Code 1975, § 11-93-2, because that section affects only the recovery of damages, not the amount for which a judgment can be entered.
[2] We note that post-judgment motions for a judgment notwithstanding the verdict or, in the alternative, a new trial, were timely filed by the County and co-defendant Richard Joiner, and that they were later denied by the trial court. The interest on the judgment continued to run while these motions were pending. Rule 37, A.R.App.P. | April 12, 1990 |
ff25f3d0-6b59-4794-8a26-b352a4da633e | McConico v. Romeo | 561 So. 2d 523 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 523 (1990)
James McCONICO, Jr.
v.
Michael ROMEO.
88-1011.
Supreme Court of Alabama.
April 12, 1990.
*524 James McConico, Jr., pro se.
W.J. McDaniel and William A. Mudd of McDaniel, Hall, Conerly & Lusk, Birmingham, for appellee.
KENNEDY, Justice.
This is an action by a former client against his attorney. The trial court entered a summary judgment in favor of the attorney on all counts, and the client appeals. We affirm.
The record, viewed, as it must be, in the light most favorable to the nonmoving party, discloses the following facts:
In December 1975, James McConico and his mother retained Attorney Michael J. Romeo to represent him on charges of burglary and grand larceny. At some point, the possibility of McConico's being granted youthful offender status in the event that he was indicted on these charges was apparently discussed, although there is conflicting evidence as to exactly what was said during the discussions. McConico was indicted by the Jefferson County grand jury in February 1976. The judge rejected McConico's request for youthful offender status, but McConico evidently was not informed of this denial. On October 25, 1976, he pleaded guilty and was sentenced to serve a two-year term at the Frank Lee Youth Center.
In January 1984, in the Circuit Curt of Jefferson County, McConico was convicted of murder and the State asked that he be sentenced to life imprisonment pursuant to Alabama's Habitual Felony Offender Act. McConico insisted that his prior convictions had been youthful offender convictions and, therefore, could not be used for enhancement purposes under the Act. Romeo did not represent McConico in the murder case, but McConico maintains that he did contact Romeo about the State's contention that he had not been sentenced as a youthful offender on the burglary and grand larceny charges and that Romeo confirmed that he had been. The trial court found that the burglary and grand larceny convictions had not been youthful offender convictions and sentenced McConico to life imprisonment.
Later that year, McConico filed a petition for writ of habeas corpus in the United States District Court for the Northern District of Alabama, alleging that his guilty plea in October 1976 had been involuntarily entered in the belief that he had been given youthful offender status. He alleges now that Romeo agreed, prior to the hearing on the federal petition, to testify on his behalf at that hearing. At the hearing, however, Romeo testified on behalf of the State. On December 18, 1987, Romeo was determined by the United States District Court to have been ineffective in his representation of McConico on the burglary and grand larceny charges because of a failure to inform McConico of the denial of youthful offender status.
On August 15, 1988, McConico telephoned Romeo and informed him of his intent to file a civil complaint against him for damages arising out of the 1976 representation. Romeo allegedly asked him to *525 delay filing any complaint so that he could contact the company that had been his malpractice insurance carrier in 1976 and investigate the possibility of settling the case. Over the next several months, McConico contacted both Romeo and his attorney several times, but they were apparently never able to reach a settlement that was acceptable to all of the parties involved.
On November 30, 1988, McConico filed a complaint against Romeo in the Circuit Court of Jefferson County, alleging malpractice, breach of contract, denial of civil rights, false imprisonment, willful misrepresentation, and fraudulent suppression of material facts in connection with Romeo's 1976 representation of him. Following discovery, both parties filed motions for summary judgment. The trial court entered Romeo's summary judgment on February 15, 1989, without making any written findings. McConico appealed.
Summary judgment is proper when the record, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P.; Houston v. McClure, 425 So. 2d 1114, 1116 (Ala.1983); Papastefan v. B & L Constr. Co., 356 So. 2d 158 (Ala.1978). In determining the existence or absence of any genuine issue of material fact, we are limited in our review to those factors that were before the trial court when it ruled on the summary judgment motion. Ex parte Bagby Elevator & Elec. Co., 383 So. 2d 173 (Ala.1980).
We need not consider the evidence that the appellant presented to the trial court in support of his claims of malpractice, breach of contract, denial of civil rights, and false imprisonment, because those claims were barred by the statute of limitations. Code 1975, § 6-2-34, provides:
Appellant's claims alleging false imprisonment and denial of civil rights are barred by § 6-2-34(1). This section explicitly applies to actions for false imprisonment, but it has also been held applicable to claims alleging a denial of civil rights under 42 U.S.C. §§ 1981 and 1983. See Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549 (11th Cir.1988).
Any claim that McConico may have had for breach of contract is barred by § 6-2-34(4) and (9). Although the record does not indicate whether the contract between the parties was oral or written, we see no need to make this distinction under the facts here, inasmuch as § 6-2-34 applies by its terms to all contracts, whether written or oral, express or implied, unless they are under seal. Because there is no evidence in the record of any contract between the parties that was under seal, the trial court properly entered summary judgment in favor of Romeo with respect to this claim.
McConico's malpractice claim is barred by § 6-2-34(8), which establishes a six-year statute of limitations for malpractice actions. In Cofield v. Smith, 495 So. 2d 61 (Ala.1986), we held that a malpractice action against an attorney handling a criminal case accrued when the client pleaded guilty. This means that in McConico's case any malpractice claim would have accrued in 1976 when he pleaded guilty to the charges of burglary and grand larceny and would have been barred by the statute six years later in 1982. The trial court, therefore, properly entered summary judgment in favor of Romeo on the malpractice claim.
*526 This leaves only a consideration of the plaintiff's fraud claims. Code 1975, § 12-21-12, which became effective as to cases filed after June 11, 1987, provides:
After a thorough review of the record, we conclude that the plaintiff failed to satisfy this burden. We find in the record no "substantial evidence" that any fraud was committed.
The summary judgment in favor of Michael Romeo is due to be, and it is hereby, affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur. | April 12, 1990 |
f0cb0eb8-eed5-4ddc-bf77-18ef56403683 | Kohn v. Johnson | 565 So. 2d 165 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 165 (1990)
James KOHN
v.
Sherron JOHNSON.
88-1611.
Supreme Court of Alabama.
June 8, 1990.
*166 Jerry L. Cruse, Montgomery, for appellant.
Jasper B. Roberts and George H.B. Mathews, Montgomery, for appellee.
HORNSBY, Chief Justice.
The defendant, James Kohn, appeals from a judgment entered upon a jury verdict awarding the plaintiff, Sherron Johnson, on her breach of contract claim, $15,000 for monetary loss and $20,000 for mental anguish. We affirm the trial court's judgment.
The evidence at trial tended to show that Kohn and Johnson entered into an oral contract whereby Kohn was to construct an addition to Johnson's house for a price of $6,500. The contract price was eventually increased to $6,800 when Johnson objected to the sheet rock that Kohn proposed to use in finishing the interior walls and demanded wood paneling instead. Johnson, a widow, lived with her two children in an older structure that in previous years had been a railroad building but had since been converted into a dwelling. Johnson testified at trial that Kohn promised her that she "would be very proud of" the addition when the construction was finished.
Once construction was completed, however, a myriad of problems appeared in the new construction. There was evidence tending to show that the foundation of the addition was improperly laid and finished. The foundation consisted of concrete block piers resting on bricks. No mortar had been used to cement the piers or bricks in place. No footings had been dug beneath the piers, and they merely rested upon the ground.
Evidence also revealed numerous leaks in the ceiling, walls, and windows. There was evidence that the roof leaked because a "valley" had been improperly installed; that windows had not been properly sealed and leaked so badly that Johnson would have to use a towel to wipe up water after *167 a rainshower; that a bathtub had been improperly installed and sealed and leaked incessantly, although Kohn's carpenter attempted to blame the leak on Johnson's children; that the Masonite siding used to construct the exterior walls was improperly installed and leaked; and that water from one of the roof leaks ran into a light fixture and that this fixture was one-third full of water when the addition was inspected by a building inspector prior to trial. During her direct testimony, Mrs. Johnson stated that the water that collected in this light fixture "scorched" against the globe and that the light bulb in the fixture would "blow" every time it rained.
Additionally, Mrs. Johnson's evidence indicated that the ridge or spine of the roof of the addition was not level. There was evidence that the ridge should have been level with the plane of the roof on the original structure, but that the roof on the addition sagged at an angle where it intersected the original roof. There was also evidence that the roof also shook or vibrated when trains moved along the track across the street from Mrs. Johnson's house.
Oddis Bruner, an employee of National Industries who had 42 years of experience in the construction industry, testified for the plaintiff. He testified that he performed an inspection of the plaintiff's residence and found that the addition was constructed poorly. Specifically, he stated that the piers upon which the addition rested were improperly constructed; that windows were improperly flashed and caulked; that there were no drip caps on the windows and, because of that, moisture was allowed to enter the structure; that the Masonite siding was not properly installed and lacked proper flashing and should have been installed with an anti-leak device called a "Z-bar"; that crown molding and trim were not properly cut and joined together; that carpet was not properly affixed to the floor and was not properly joined together at its seams; that doors were improperly installedthat one was "out of plumb" and another was installed with nails that were so large as to split the door casing; that the bathtub was not properly caulked and the lack of proper caulking had caused the woodwork surrounding the tub to begin to rot; that the rotting was probably not a result of water being splashed from the tub, as the carpenter had claimed, but a result of continuous soaking of the wood; and that the roof was improperly constructed. In his opinion, all of the alleged defects resulted from poor workmanship.
There was evidence that "standard nails," rather than finishing nails, were used to construct the exterior, and that the standard nails would eventually rust and then "back out" of the wood.
There was evidence that the interior paneling was improperly installed and was not properly joined together. There was also evidence that the carpet had not been joined together with carpet tape or another device at its seams and, as a result, had pulled apart. Moreover, evidence indicated that so much moisture had collected in one of the bedrooms as to cause the metal doors of a closet to begin to rust.
Kohn's carpenter installed an adult-size commode in the bathroom, but affixed a child's seat to the commode. Johnson said that when she complained about this, Kohn assured her that the small seat was in keeping with the "new chic" in bathroom decor. There was also evidence that the vent pipe for the commode exited from the exterior wall but ended underneath the eave of the addition. There was evidence that, as a result, noxious odors wafted throughout the addition.
There was evidence to indicate that Mrs. Johnson made numerous telephone calls to Kohn's business in an attempt to have him repair the defects she had found in the addition. Johnson also stated that she had contacted Kohn's carpenter, Mr. Little, and asked him to try to repair the defects. However, she said that neither he nor Kohn made any repairs to the addition. Mrs. Johnson filed her complaint against Mr. Kohn on August 26, 1988.
The defendant claims that the trial judge erred in giving certain instructions to the *168 jury and in refusing to give certain other instructions that he had requested. The defendant also claims that the trial judge should have allowed the jury to inspect the plaintiff's residence. Finally, the defendant claims that the trial judge erred in allowing into evidence a letter written by his attorney to the plaintiff because, he argues, that letter was inadmissible as an offer of compromise.
The defendant claims that the trial judge committed reversible error in giving the following jury charge requested by the plaintiff:
The plaintiff argues that this instruction is supported by Rose v. Davis, 474 So. 2d 1058 (Ala.1985). In Rose, this Court stated:
474 So. 2d at 1061-62. (Emphasis added in Rose.) See, also, Fox v. Webb, 268 Ala. 111, 105 So. 2d 75 (1958).
The defendant attempts to distinguish Rose from the present case, arguing that in this case the defendant provided a finished product that required only minor alterations, while in Rose the work contracted for was never completed. We do not believe that this is a material distinction between the cases. There is evidence in the record from which the jury could have concluded that Mrs. Johnson would be put to considerable expense in making the addition safe and liveable. When a building contract is breached, the owner is generally entitled to the costs of remedying the defect, although this remedy may in some cases be limited by the concept of economic waste. J. Calamari and J. Perillo, Contracts § 14-29 (1987).
A charge that is misleading or incorrect may be the subject of error. Herrington v. Central Soya Co., 420 So. 2d 1 (Ala. 1982). In this case, however, we hold that the giving of the requested instruction was not erroneous.
The defendant also claims that the jury should have been given his requested instruction that was based on the theory of Lowe v. Morrison, 412 So. 2d 1212 (Ala. 1982). That requested charge read:
We believe that the defendant misconstrues the Lowe rationale. In that case, this Court stated that "[t]he proper measure of damages, where correction of defects would amount to economic waste, is the diminution of value of the house as constructed from the value it would have had if it had been constructed in a workmanlike manner." Lowe, supra, at 1213-14 (citations omitted). In that regard, we conclude, the Lowe opinion is distinguishable.
We agree with the contention of the plaintiff that the theory of economic waste does not apply in this case. The evidence in the record speaks of massive defects in the dwelling as constructeddefects that had caused the addition to rot as a result of water leaks; defects that caused the roof to sag and leak; and a foundation constructed in such a manner that the addition could shift or settle or completely fall from its foundation. Necessarily, this is not a case of economic waste. Cf. Jacob & Youngs, Inc. v. Kent, 230 N.Y. 239, 129 N.E. 889 (1921) (cited in numerous texts and treatises as the classic example of economic waste).
There was evidence that the addition was riddled with defects and was potentially dangerous to its occupants. On these facts, the recovery of $15,000 in damages to remedy the numerous defects is not "clearly disproportionate" to the loss in value suffered by Mrs. Johnson. Evidence in the record indicates that the addition was "unlivable," and that portions of the defendant's work would have to be torn down and then reconstructed in order to make the building liveable. There was evidence to show that the plaintiff would incur an expense of over $16,000 to remedy all of the defects found in the addition. The defendant's evidence tended to show that the repairs would cost $1500 to $2000. However, the defendant presented no evidence that would indicate that repairing the defects in the addition would amount to economic waste.
Based upon the foregoing, we conclude that it was not error for the trial court to refuse the defendant's requested charge.
The defendant argues that the trial court abused its discretion in refusing to allow the jury to visit the Johnson addition and to view for itself the condition of the new construction. We note that the defendant concedes that a trial court may grant a jury view of the premises and that the trial court will not be reversed unless there has been an abuse of that discretion. C. Gamble, McElroy's Alabama Evidence § 208.01 (3d ed. 1977). See, also, Moody v. Stanfield, 292 Ala. 185, 291 So. 2d 301 (1974). Gamble notes that one factor the court may consider is that the thing to be seen by the jury may just as well be photographed. Id. In this case, the plaintiff produced numerous photographs of the premises depicting the condition of the structure. The defendant contends, on the other hand, that the photographs were misleading because the defects that they portrayed could be easily remedied. The trial judge could well have concluded that a jury view might not have been useful in light of the plaintiff's evidence. Therefore, we find that there was no abuse of discretion in this case.
The defendant claims that the trial court committed reversible error in allowing into evidence a letter written from the defendant's attorney to the plaintiff's attorney. The defendant claims that the letter was inadmissible as an offer of compromise between the parties. Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987) (offers of compromise made either before or after litigation is begun are inadmissible). See generally 29 Am.Jur.2d Evidence § 629-30 (1967). Likewise, conditional offers to perform amount to mere efforts to settle a pending claim and are thus inadmissible. Yeager v. Hurt, 433 So. 2d 1176 (Ala.1983). However, an express admission of the fact of responsibility *170 contained in an offer of compromise may be admitted into evidence. Griffin v. Hardin, 456 So. 2d 1113 (Ala.Civ.App.1984).
The letter from the defendant's attorney was dated June 29, 1988, was addressed to Mrs. Johnson's attorney, and read as follows:
The plaintiff did not file her complaint until August 26, 1988.
The rationale and public policy underlying the privileged nature of settlement negotiations is the encouragement of extrajudicial settlement of disputes among potential litigants. Super Valu Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987) (citing Indemnity Company of America v. Pugh, 222 Ala. 251, 132 So. 165 (1931)).
Clearly, the letter set out above does not constitute an express admission of the fact of liability. In fact, the letter contains language specifically stating that the defendant denies any responsibility for the defects in the plaintiff's house. The letter did contain language to the effect that the defendant remained willing to make certain repairs to the Johnson addition, apparently in settlement of the dispute. However, the offer of settlement was not clearly stated.
Even though the letter may not have been properly admissible into evidence, in order for its admission to warrant a reversal the claimed error arising therefrom must create some prejudice to the defendant. Rule 45, A.R.App.P., provides as follows:
The central complaint of the defendant regarding the use of the letter is that Mrs. Johnson's attorney was allowed to cross-examine the defendant concerning whether the defendant was aware of more than one defect in the addition. The defendant argues that Mrs. Johnson's attorney was allowed to elicit testimony from the defendant showing that he was aware of numerous defects in the construction and yet offered to repair only a single defect. We do not believe that the defendant was prejudiced by the admission of the letter into evidence or was prejudiced by the cross-examination that was based on its contents. Neither the letter nor the defendant's testimony in cross-examination on this point supports a conclusion that the defendant was aware of numerous defects in the construction. The basis of the defendant's liability stems from Mrs. Johnson's testimony and her expert evidence showing that the addition was in a dangerous condition due solely to the defendant's failure to build it in a workmanlike manner.
In addition, it does not appear that this evidence was presented in a calculated attempt to create an improper jury verdict. Beutel v. Paul, 741 S.W.2d 510 (Tex.App. 1987). We believe that the verdict in this *171 case is fully supported by the evidence considered by the jury, in the absence of the evidence of this alleged settlement offer. Where the alleged error in admitting evidence does not affect the result of the trial, this court will not require a reversal. Baker v. Horsley, 212 Ala. 181, 101 So. 830 (1924). In this case, the testimony showing the defendant's awareness of any defects would have had little, if any, effect on the jury's conclusion as to the damages required to put the plaintiff in the position she would have been in had the contract been properly performed. As we stated earlier, the jury was fully justified in finding that $15,000 would be required to properly repair Mrs. Johnson's addition. That conclusion was amply supported by Mrs. Johnson's evidence.
Therefore, the judgment is due to be, and it hereby is, affirmed.
AFFIRMED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur. | June 8, 1990 |
b9d70c6c-e096-49a8-8772-442c3e0be460 | Wyatt Safety Supply Co. v. INDUS. SAFETY PORD., INC. | 566 So. 2d 728 | N/A | Alabama | Alabama Supreme Court | 566 So. 2d 728 (1990)
WYATT SAFETY SUPPLY COMPANY, INC.
v.
INDUSTRIAL SAFETY PRODUCTS, INC.
88-1653.
Supreme Court of Alabama.
July 27, 1990.
Louis E. Braswell of Hand, Arendall, Bedsole, Greaves & Johnston, Mobile, and Joseph S. Bird III and John E. Goodman of Bradley, Arant, Rose & White, Birmingham, for appellant.
Jerome E. Speegle, Michael Gillion and Michael R. Mills of Miller, Hamilton, Snider & Odom, Mobile, for appellee.
ADAMS, Justice.
Industrial Safety Products, Inc. ("Industrial"), filed an action against Wyatt Safety Supply Company, Inc. ("Wyatt"), alleging that Wyatt had tortiously interfered with contractual relationships between Industrial and two of its employees, Joseph Michael Lushington and Edna Faye Harridge, by inducing Lushington and Harridge to breach noncompetition agreements that they had signed. Industrial also sought to enjoin Wyatt from employing Lushington and Harridge, alleging that such employment would be in breach of the noncompetition agreements. The trial court granted Industrial's motion for a preliminary injunction, and Wyatt appeals. A.R.App.P. 4(a)(1). Industrial had a corporate predecessor that was also named Industrial Safety Products, Inc. We refer to that corporation, which underwent a reorganization described below, as "Old Industrial." We reverse and remand.
Industrial has its principal place of business in Mobile, and it is engaged in the sale of safety equipment and supplies to contractors, plants, and industry; Wyatt, which has its principal place of business in Birmingham, also engages in the sale of safety equipment and supplies.
In February 1987, both Lushington and Harridge, who were employees of Old Industrial in Pensacola, Florida, executed a covenant not to compete with Old Industrial. The covenants provided that Lushington and Harridge would not, for a period of two years following the termination of their employment, compete with Old Industrial within Mobile or within 200 miles in any direction.
Between November 1 and December 3, 1987, a series of interrelated corporate transactions involving Old Industrial took *729 place. Old Industrial entered into a "Reorganization Agreement" with Control Resources Industries, Inc. ("Control"), and ISP, Inc. ("ISP"), as well as a merger agreement with ISP. The agreements involved the creation of a shell corporation, ISP, wholly-owned by Control, into which Industrial as it then existed (Old Industrial, as we have been calling it in this opinion), was merged. ISP then changed its name back to Industrial Safety Products, Inc. (Industrial, as we call it in this opinion). Old Industrial transferred 100 percent of its stock to Control.
Lushington and Harridge became employees of Industrial, and they worked for Industrial in Pensacola until July 1989. Lushington and Harridge resigned from Industrial on July 7, 1989, and began employment with Wyatt, still in the Pensacola area, on July 10, 1989.
Wyatt contends that Industrial cannot enforce the noncompetition agreement because all such agreements are void according to Ala.Code 1975, § 8-1-1(a), except as provided in § 8-1-1(b) and (c), and Wyatt further argues that the noncompetition agreement does not fall within either of those exceptions. Section 8-1-1 provides:
The noncompetition agreement at issue falls within the general prohibition of § 8-1-1(a). Accordingly, the dispositive issue is whether § 8-1-1(b) exempts the agreement from that prohibition and thus makes it enforceable. Section 8-1-1(b) explicitly provides that the successor to a purchaser of the good will of a business can enforce a noncompetition agreement against the sellers of that good will; however, § 8-1-1(b) does not state that Industrial, a successor to Old Industrial, can enforce a noncompetition agreement made by Lushington and Harridge with Old Industrial, their former employer. In other circumstances, we have addressed § 8-1-1's failure to make an explicit exception to the provision's prohibition of contracts in restraint of trade, and we examine those cases for guidance.
In Odess v. Taylor, 282 Ala. 389, 211 So. 2d 805 (1968), the Court addressed a noncompetition agreement between two doctors, Dr. Odess and Dr. Taylor. Taylor entered practice with Odess and agreed not to practice within 50 miles of Birmingham if he left his association with Odess. Later, Taylor stated that Odess was treating him unfairly with regard to the practice, and he left his practice with Odess. Odess sought to enjoin Taylor from practicing medicine in Birmingham, but the trial court denied Odess's request for such a permanent injunction. In affirming the trial court's judgment, the Court wrote:
282 Ala. at 395-96, 211 So. 2d at 810-11.
In Gant v. Warr, 286 Ala. 387, 240 So. 2d 353 (1970), the Court followed its reasoning in Odess v. Taylor to hold that a "professional" was not subject to the statutory exception. The Court quoted Odess v. Taylor extensively and, consistent with its opinion in that case, wrote:
286 Ala. at 391, 240 So. 2d at 356. The Court again stated this rationale in Thompson v. Wiik, Reimer & Sweet, 391 So. 2d 1016, 1019 (Ala.1980) (per Jones, J., with three Justices concurring and Beatty, J., concurring in the result).
If we apply that same statutory construction, the following holding results: Although the language of § 8-1-1(b) does not explicitly allow Industrial to enforce the noncompetition agreement against Lushington and Harridge, it does explicitly provide for a buyer of the good will of a business and the buyer's successor to enforce a noncompetition agreement against the seller of the good will; accordingly, the legislature's omission of a provision that would allow Industrial to enforce the agreement against Lushington and Harridge, while the legislature specifically provided for successor purchasers of the good will of a business to be able to enforce such agreements against the seller of the good will, would indicate that the legislature did not intend to give Industrial the benefit of the § 8-1-1(b) exception to the general prohibition of such agreements. We must determine whether to adopt that rationale, and further discussion is necessary to reach that determination.
The United States District Court for the Northern District of Alabama, confronted *731 with the same issue we now address, adopted that rationale. That court held that § 8-1-1(b) does not allow a successor employer to enforce a noncompetition agreement made by an employee and a predecessor employer. In Metromedia, Inc. v. Jennings, CV 83-H-5866-NE (N.D. Ala. 1984), Jennings, who was employed by Creative Displays, Inc. ("Creative"), signed a noncompetition agreement with that corporation; that agreement purported to prevent Jennings from competing with Creative in Huntsville for two years following the termination of his employment. Creative entered into an asset-purchase agreement with Metromedia, Inc. ("Metromedia"), and all of Creative's assets were transferred to Metromedia. Jennings was employed with Metromedia for a period of time, then he resigned. Metromedia filed an action, alleging that Jennings had breached the noncompetition agreement that he had signed with Creative. Jennings did not have a contract with Metromedia.
"Id.
Furthermore, we note that § 8-1-1 expresses the public policy of Alabama that contracts in restraint of trade are disfavored, "because they tend not only to deprive the public of efficient service but also tend to impoverish the individual." James S. Kemper & Co. Southeast, Inc. v. Cox & Associates, Inc., 434 So. 2d 1380, 1384 (Ala. 1983), citing Robinson v. Computer Servicenters, Inc., 346 So. 2d 940, 943 (Ala. 1977).
Against all this, Industrial cites Ala. Code 1975, § 10-2A-145(b)(4) and (5), and argues that as a surviving corporation to a merger, Industrial possesses by law "all rights [and] privileges" as well as all "liabilities and obligations" of the merged corporations. That section, entitled "Effect of merger or consolidation," provides:
Section 8-1-1 is specific. It addresses only contracts in restraint of trade. Section 10-2A-145(b)(4) and (5) is general and relates to the consequences of all statutory mergers or consolidations. "There is a rule of statutory construction that specific provisions relating to specific subjects are understood as exceptions to general provisions relating to general subjects." Murphy v. City of Mobile, 504 So. 2d 243 (Ala. 1987); Bouldin v. City of Homewood, 277 Ala. 665, 174 So. 2d 306 (1965). Accordingly, we hold that § 8-1-1 is an exception to § 10-2A-145(b)(4) and (5) and that under § 10-2A-145(b)(4) and (5) there is no right to enforce noncompetition agreements that does not exist under § 8-1-1.
Subscribing to the sound reasoning in Metromedia, Odess v. Taylor, Gant v. Warr, and Thompson v. Wiik, Reimer, & Sweet, we hold that Industrial may not enforce the noncompetition agreement against Lushington and Harridge, because the agreement violates the general prohibition of Ala.Code 1975, § 8-1-1(a), and does not fall within the exceptions of § 8-1-1(b) and (c). The legislature did not provide for employers situated as Industrial is to be able to enforce noncompetition agreements against employees situated as Lushington and Harridge are in relation to Industrial. We will not create such a right of enforcement *733 for Industrial either, especially in light of our public policy against contracts in restraint of trade. The judgment is due to be reversed and the cause remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and SHORES, HOUSTON and KENNEDY, JJ., concur.
MADDOX, J., concurs in the result.
ALMON, J., concurs specially.
MADDOX, Justice (concurring in the result).
I concur in the result reached, but I must strongly disagree with the holding of the majority opinion that noncompetition agreements executed by an employee with a corporate employer, which is merged into and becomes a part of a successor corporation, cannot be enforced by the successor corporation.
One of the appellant's arguments is that the noncompetition agreements contained a clause providing that "[t]his contract shall become null and void should [Industrial] as it now stands be sold to another party or change management," and that the facts of this case clearly show that Industrial was "sold" or that its management was "changed" within the meaning of this clause in the contract.
I agree with the appellant's argument on this issue. Construing the "null and void" clause of the contracts, and applying the rule that the public policy of this State is to disfavor this kind of contract, I am constrained to hold that what happened in this case constituted a "sale" or "change" of management within the meaning of those contract clauses.
I cannot agree, however, with the holding of this Court, and the holding of my learned friend Federal District Judge James Hancock in Metromedia, Inc. v. Jennings, CV83-H-5866-NE (N.D.Ala.1984) that Ala.Code 1975, § 8-1-1(b), does not permit a successor employer to enforce a noncompetition agreement made by an employee and a predecessor employer.
I find support for my position that the merger and transfer in this case constituted a "sale" within the contemplation of the parties when they executed the contract containing the "null and void" provision in this Court's case of First Alabama Bancshares, Inc. v. McGahey, 355 So. 2d 681 (Ala. 1978). While not exactly the same as this case, McGahey supports my position in this case that but for the "null and void" clause, these contracts would be enforceable.
In McGahey, a bank holding company brought an action against McGahey, a former stockholder and officer of the bank, to enforce a noncompetition agreement. This Court set out the issue in that case, as follows:
355 So. 2d at 682.
After concluding that an individual stockholder could sell the good will of a corporation in proportion to his interest in that corporation, this Court held:
355 So. 2d at 682-83.
While somewhat different from the present case in its facts, McGahey shows that a noncompetition agreement can remain valid after a merger and be enforced by the successor corporation. Based on the reasoning of this Court in McGahey, I think there was a "sale" within the meaning of the "null and void" provision of the noncompetition agreements; therefore, I concur in the result reached, but the reasons given by the majority for the holding in this case, I believe, are not sound, and I take this opportunity to respectfully state my view of the law.
ALMON, Justice (concurring specially).
I agree with Justice Maddox's conclusion that the clause in the noncompetition agreements with the former Industrial Safety Products, Inc., voiding those agreements upon a sale of the company, is triggered by the sale that took place here. Prior to that sale, Melvin and Ronnie Hyer owned all of the stock of Industrial. After the sale, Control Resource Industries, Inc., owned all of the stock of the new Industrial, which had undergone a merger (with I.S.P., Inc.) and a name change (back to Industrial Safety Products, Inc.) in the process. As part of the consideration for the transaction, the Hyers received a total of six per cent of the stock of Control. The clause voiding the noncompetition agreements should be construed against its drafter, Industrial, and under such a construction this transaction should be considered a "sale" and the noncompetition agreements should be considered void.
Absent that clause, I would have serious questions about voiding the noncompetition agreements simply because of the sale of the stock of Industrial. A corporation might have as its most valuable assets valid noncompetition agreements with its key employees, but the majority's reasoning would make that company unable to merge with another corporation or otherwise transfer its assets to a successor entity. I agree that § 8-1-1(a) expresses a *735 policy of disfavoring contracts in restraint of trade, but contracting parties are entitled to rely on the exceptions found in § 8-1-1(b). The exceedingly strict construction of § 8-1-1(b) articulated by the majority is unnecessary in this case, and, as applied in other cases, might raise serious questions regarding vested rights, deprivation of property without due process of law, and impairment of contracts. | July 27, 1990 |
c690ac76-42aa-4096-8ad8-ac39ba65a244 | Hanners v. Balfour Guthrie, Inc. | 564 So. 2d 412 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 412 (1990)
Gerald HANNERS d/b/a Newton Peanut Company
v.
BALFOUR GUTHRIE, INC.
88-1152.
Supreme Court of Alabama.
April 20, 1990.
Steven F. Schmitt, Tallassee, and Joseph W. Adams, Ozark, for appellant.
Herman Cobb of Buntin, Cobb & Shealy, Dothan, and J. Wayne Pierce, Atlanta, Ga., for appellee.
HOUSTON, Justice.
This is an appeal from summary judgment entered in favor of Balfour Guthrie, *413 Inc. ("Balfour"),[1] against Gerald Hanners d/b/a Newton Peanut Company ("Hanners") on Hanners's fraud claim with regard to the payment terms of two contracts entered into between Balfour and Hanners. We reverse and remand.
The issue for our review is whether a genuine issue of fact existed as to whether Hanners reasonably relied on alleged misrepresentations made by Balfour.
Summary judgment is appropriate where there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Rule 56, A.R.Civ.P. All reasonable doubts concerning the existence of a genuine issue of material fact must be resolved against the moving party. The applicable standard of review is the "substantial evidence rule." Ala.Code 1975, § 12-21-12; Greene v. Thompson, 554 So. 2d 376 (Ala.1989); Perry v. Hancock Fabrics, Inc., 541 So. 2d 521 (Ala.1989); see, also, Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). Thus, the trial court was obligated to view all evidentiary material offered by Balfour in support of its motion in the light most favorable to Hanners, Houston v. McClure, 425 So. 2d 1114 (Ala.1983); and the burden of proving the non-existence of reasonable reliance on the part of Hanners rested with Balfour as the moving party.
Viewing the evidence in the light most favorable to Hanners, as we are required to do under Rule 56, we find that the trial court had the following facts before it at the time it granted Balfour's motion for summary judgment: Hanners operated a sole proprietorship known as Newton Peanut Company, whose business was to buy peanuts, which Hanners processed by shelling and sizing and then selling to dealers or manufacturers through brokers. Hanners entered into agreements with Balfour on December 12, 1985, and March 5, 1986, to sell Balfour peanuts. Hanners based his decision to sell peanuts to Balfour for the particular quoted prices upon the payment terms stated in both contracts, "Net cash, receipt of invoice," believing these terms to mean that Balfour would pay Hanners when the peanuts were delivered to Balfour. Neither Balfour nor any of its representatives told Hanners that Balfour would pay in any way other than cash upon receipt of Hanners's invoices, which would have been in accordance with the Southeastern Peanut Association rules, as well as the standards and practices generally followed in the peanut industry. Hanners expected to receive payment from Balfour, usually in less than one week and in no more than two weeks after the date on the invoice; otherwise, he would consider the payments untimely and outside the intent of the contract. However, Balfour did not pay Hanners upon receipt of the invoices. Rather, Balfour paid on the first contract approximately 32 days after the date of the invoice for the first shipment and approximately 30 days after the date of the invoice on the second shipment. On the second contract, Balfour made payment to Hanners over 31 days after the date on the invoice. The main effect of Balfour's payments being delayed was Hanners's loss of the use of the funds during that period of time.
It was not until July 1, 1987, that Hanners first learned of the internal procedure of Balfour dealing with the payment of invoices for peanutsto defer payment for 30 days after the date of invoice without regard to the date the invoice was received by Balfour and to pay different people at different times, based upon a determination by one of Balfour's officers. Evidence of this internal procedure was supported by a stamp that Balfour placed on Hanners's invoices that Balfour received, stating, "Do not pay before [date]." This internal procedure for dealing with the payment of invoices for peanuts was in no way related to the provisions of the contract.
Although Hanners was aware of Balfour's past payment history, he was unaware that its procedure was willfully and *414 intentionally carried out contrary to the terms of the contracts.
Realizing that this internal procedure of Balfour was contrary to the express terms of the contracts, Hanners filed suit against Balfour, alleging fraud as a cause of action, predicated upon Balfour's promise to perform some act in the future. Hanners did not bring this fraud action because of the number of days that passed before Balfour made payment, but because of Balfour's internal procedure that caused the delay in payment for 30 days after the date of the invoice, which was in direct conflict with the terms of the contracts. Balfour filed a motion for summary judgment, basing its argument on the claim that Hanners could not have reasonably relied on the alleged misrepresentation of the payment term of the contracts, "Net cash, receipt of invoice." The trial court entered a summary judgment in favor of Balfour, finding no substantial evidence that Hanners justifiably relied on Balfour's alleged misrepresentation. Hanners appealed.
Hanners's fraud claim is predicated upon Balfour's alleged misrepresentations concerning Balfour's intent to perform under its contracts with Hannersto pay "Net cash, receipt of invoice." In order to have such a fraud claim submitted to a jury, Hanners not only had to present evidence of the basic elements of fraudulent misrepresentation, see Ala.Code 1975, § 6-5-101, but also had to prove that Balfour intended "at the time of the alleged misrepresentation, not to perform" and that Balfour "made the representation with a present intent to deceive." Selby v. Quartrol Corp., 514 So. 2d 1294, 1297 (Ala.1987); see, also, Watters v. Lawrence County, 551 So. 2d 1011 (Ala.1989); Coastal Concrete Co., Inc. v. Patterson, 503 So. 2d 824 (Ala. 1987); and Russellville Production Credit Association v. Frost, 484 So. 2d 1084 (Ala. 1986).
Hearing Systems, Inc. v. Chandler, 512 So. 2d 84, 87 (Ala.1987); see, also, Russellville Production Credit Association v. Frost, supra.
Under § 6-5-101, there must be substantial evidence of a misrepresentation of a material fact. If the contracts provided for a specific time for payment for peanuts sold, but Balfour did not intend to abide by that term but rather intended to pay for the peanuts at a time designated by an officer of Balfour after receipt of the invoice but without regard to the terms of the contracts, then there was substantial evidence of a misrepresentation of a material fact made willfully to deceive.
Section 6-5-101 also requires that the misrepresentation be acted on by the opposite party. "[A]cted on" has been judicially interpreted as "reasonably" relied upon, Southern States Ford, Inc. v. Proctor, 541 So. 2d 1081 (Ala.1989), and more recently as "justifiably" relied upon, Hickox v. Stover, 551 So. 2d 259 (Ala.1989), by the opposite party. See Alfa Mutual Insurance Co. v. Northington, 561 So. 2d 1041 (Ala.1990). In his affidavit in opposition to Balfour's motion for summary judgment, Hanners's deposition testimony revealed that he first learned of Balfour's internal procedure for dealing with the payment of invoices for peanuts more than one year after the first contract was executed. Such testimony constituted substantial evidence that Hanners did not know of the *415 misrepresentation at the time Hanners executed the contracts.
In the affidavit of Balfour's corporate credit manager in support of the motion for summary judgment, evidence was presented that the average number of days between the invoice dates and Balfour's check dates (approximately 30 days) was not materially different in the transactions under the two contracts that form the basis of this lawsuit from previous transactions with Hanners. Thus, Balfour contends that, due to Hanners's past dealings with Balfour and others, Hanners should have known that he would not be paid for his peanuts until approximately 30 days after the date of the invoice, regardless of the provision for payment in the contracts. That is not the issue. This is not a suit on a contract, and we are not determining the reasonable expectations of the parties at the time the contracts were executed. Rather, Hanners contends that he was entitled to payment in accordance with the terms of the contract ("Net cash, receipt of invoice"), no matter how that method of payment might be interpreted, not in accordance with the internal procedure by which Balfour paid sellers when an officer of Balfour directed that they be paid. Hanners presented substantial evidence that he acted on Balfour's expected good faith performance of the contract without knowledge that the method of payment provided for in the contracts was irrelevant to Balfour.
The policy of the courts should be to discourage misrepresentation and deceit and to discourage negligence and inattention to one's own interest (see, Southern States Ford, Inc. v. Proctor, supra); and, a cause of action for fraud cannot lie where it is evident that the plaintiff "blindly trusts, where he should not, and closes his eyes where ordinary diligence requires him to see."[2] In summary, a cause of action for fraud cannot lie where a plaintiff willingly permits a defendant to deceive him. This is not such a case. Rather, the record here clearly reveals that there was substantial evidence of every element of Hanners's cause of action for fraud predicated on a promise to perform some act in the future. Therefore, it was error for the trial court to enter the summary judgment, and the question of fraud should have been resolved by a jury.
REVERSED AND REMANDED.
JONES, ALMON, SHORES and KENNEDY, JJ., concur.
MADDOX and ADAMS, JJ., dissent.
MADDOX, Justice (dissenting).
I think the trial judge correctly concluded that while there was substantial evidence of a breach of contract with resultant damages, there was no substantial evidence of fraud.
ADAMS, Justice (dissenting).
I respectfully dissent. The record in this case reveals 13 previous transactions between Hanners and Balfour and, with regard to each of those deliveries, payment was made anytime between 15 and 46 days after receipt of invoice. In those transactions, the average time elapsed between receipt of invoice and payment was approximately 30 days. The record also reveals that Balfour offered evidence tending to show that Hanners himself did not abide by the two-week time limit which he says he considers "reasonable" under the "net cash, receipt of invoice" terms of the contract. The affidavit of Moultrie Sessions, Jr., of Session's Company, Inc., indicates that Hanners delayed payment on peanuts he purchased from Sessions for 36 days. The same payment terms of "net cash, receipt of invoice" existed with regard to the agreement between Hanners and Sessions. It is clear to me that these things, when considered together, indicate that Hanners did not rely on the payment provisions when contracting with Balfour. Therefore, I dissent.
[1] Balfour Guthrie, Inc., was a commodities dealer engaged in shelled peanut transactions, which consisted of purchasing and selling shelled peanuts, primarily for export but with a small percentage (approximately 5%) going into the domestic market.
[2] Munroe v. Pritchett, 16 Ala. 785, 789 (1849). | April 20, 1990 |
69c8d237-6756-44df-b5f8-5b00abab9024 | Salter v. Alfa Ins. Co., Inc. | 561 So. 2d 1050 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1050 (1990)
Betty SALTER
v.
ALFA INSURANCE COMPANY, INC.
88-1497.
Supreme Court of Alabama.
April 12, 1990.
*1051 Allen G. Woodard of Cherry & Givens, Dothan, for appellant.
William C. Carn III and Connie Ray Stockham of Lee & McInish, Dothan, for appellee.
HOUSTON, Justice.
After Betty Salter's agent's contract was terminated by Alfa Insurance Company, Inc. ("Alfa"), she sued Alfa, claiming that the contract had been wrongfully terminated and that she had been defrauded. The trial court entered a summary judgment for Alfa on both claims,[1] and certified it as final pursuant to Rule 54(b), Ala.R.Civ.P.[2] Salter appealed. We affirm.
Initially, we note that the summary judgment was appropriate in this case if there was no genuine issue of material fact and Alfa was entitled to a judgment as a matter of law. In determining whether there was a genuine issue of material fact, this Court must review the evidence in the light most favorable to Salter and resolve all reasonable doubts against Alfa. Kizziah v. Golden Rule Insurance Co., 536 So. 2d 943 (Ala.1988). This action was pending on June 11, 1987; therefore, the applicable standard of review is the "scintilla of evidence rule." Ala.Code 1975, § 12-21-12.
Salter argues that the trial court erred in entering the summary judgment on her wrongful termination claim on the ground that her employment contract with Alfa was terminable at will. We disagree.
Salter alleged that Alfa's termination of her contract was wrongful because it was based upon a finding by Alfa that she had not cooperated in the investigation of a life insurance claim that had been filed with Alfa in connection with the death of W.B.; Salter alleged that she had been told by a representative of Alfa that she did not have to be involved in the investigation of the W.B. claim and that she had relied upon that representation. The undisputed evidence showed that Salter had an employment contract with Alfa that was terminable at the will of either party.[3] She argues, nonetheless, that the termination of her contract was in violation of this state's public policy because, she says, the Legislature has historically treated the insurance industry "with a view to the public interest." Salter asks that we carve a public policy exception out of the rule in this state that an employment contract at will may be terminated by either party with or without cause or justification. In Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977), this Court was faced with the question whether the plaintiff could maintain an action in tort for the termination of *1052 her employment contract, which was terminable "at will," based on her claim that the termination was the result of her refusal to continue to falsify medical records and, therefore, that it was "wrongful." We held that she could not, and affirmed the summary judgment entered for the defendants, stating, in pertinent part, as follows:
"`... If one does an act which is legal in itself and violates no right of another, the fact that this rightful act is done from bad motives or with bad intent toward the person so injured thereby does not give the latter a right of action against the former.'
352 So. 2d at 1131-32. Recently, in Bosarge v. Bankers Life Co., 541 So. 2d 499, 501 (Ala.1989), involving a suit alleging breach of contract, this Court, quoting Hoffman-LaRoche, Inc. v. Campbell, 512 So. 2d 725, 728 (Ala.1987), declined to modify the employee-at-will doctrine, stating, in pertinent part, as follows:
"`By now, the rule is well settled in Alabama that an employee contract at *1053 will may be terminated by either party with or without cause or justification. See, e.g., Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala.1984); Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977). This means a good reason, a wrong reason, or no reason. Hinrichs, supra.
"`... This Court has repeatedly refused to modify [the employee-at-will] doctrine even so much as to recognize a so-called public policy exception to its application. Thus, we have refused to recognize an exception where an employee had been dismissed for refusing to commit a criminal act, see, e.g., Jones v. Ethridge, 497 So. 2d 1107 (Ala.1986); Williams v. Killough, 474 So. 2d 680 (Ala.1985), or where an employee had been dismissed because he filed a workmen's compensation claim, see Meeks v. Opp Cotton Mills, Inc., supra, or where an employee had been dismissed because he responded to a subpoena for jury duty, see Bender Ship Repair, Inc. v. Stevens, 379 So. 2d 594 (Ala.1980).'"[4]
(Some emphasis in original; some emphasis added in Bosarge.)
Again, we decline to modify the employee-at-will doctrine by recognizing a public policy exception to it in this case. The trial court did not err in entering the summary judgment on the wrongful termination claim on the ground that Salter had an employment contract that was terminable at will.
Salter next contends that the trial court erred in entering the summary judgment on her fraud claim because, she argues, there was at least a scintilla of evidence tending to prove each element of the claim. Again, we disagree.
Salter's complaint, in pertinent part, reads as follows:
The record shows that Alfa made a prima facie showing that Salter's allegations were unsubstantiated and, therefore, that it was entitled to a judgment as a matter of law. Accordingly, the burden shifted to Salter to present at least a scintilla of evidence tending to show the existence of a fact question. In an attempt to do this, Salter presented evidence tending to show that Sandy Godwin, the director of life insurance claims for Alfa, had told her that Alfa was "not going to involve [her] in the investigation [of W.B.'s death], because of the closeness that [she] had with [W.B.'s] family." The evidence also tended to show that Salter had relied on that representation by staying out of the investigation and that she had been told that Alfa terminated her contract because she did not cooperate in the investigation.
The elements of actionable fraud based on a misrepresentation are: (1) a duty to speak the truth; (2) a false representation of a material existing fact made intentionally, recklessly, or innocently; (3) action upon the false representation by the plaintiff; and (4) damages proximately resulting from the false representation. Alfa Mutual Insurance Co. v. Northington, 561 So. 2d 1041 (Ala.1990).
The undisputed evidence in the present case shows that Salter suffered no injury as a result of any representation that may have been made by a representative of Alfa. Salter had an employment *1054 contract that was terminable by Alfa at any time and for any, or no, reason. Even assuming that Salter proved that Alfa, through one of its representatives, had intentionally or recklessly misrepresented to her that she did not have to participate at all in the investigation of the W.B. claim; that she had acted upon that misrepresentation; and that Alfa had based the termination of her contract on her failure to cooperate in the investigation, the fraud claim would still fail. Although we could never sanction the kind of treatment that Salter is alleged to have received from Alfa in this case, Alfa had the right under the employee-at-will doctrine to terminate Salter's contract, even if it did so maliciously or for some other improper reason.[5]
Salter also contends that the trial court's judgment must be reversed because it was entered, she says, while she had a discovery request pending. In Reeves v. Porter, 521 So. 2d 963, 965 (Ala.1988), this Court addressed the propriety of entering a summary judgment while discovery is pending:
The record suggests that when the judgment was entered in the present case, Alfa was under a court order to produce certain documents. However, Salter has not persuaded us, and she apparently did not persuade the trial court, that these documents were or might have been crucial to her case (i.e., that their disclosure and introduction would or might have precluded the entry of the summary judgment).
For the foregoing reasons, we hold that the trial court did not err in entering the summary judgment on the wrongful termination and fraud claims.
We note at this point that there is no merit in Salter's contention that the trial *1055 court abused its discretion in denying her motion to impose sanctions on Alfa for its failure to produce requested documents. See Iverson v. Xpert Tune, Inc., 553 So. 2d 82, 87 (Ala.1989).
Finally, Salter contends that the trial court erred in granting Alfa's motion for a protective order and its motion in limine. Before these motions were filed, Salter had filed a notice of intent to serve subpoenas on certain non-parties who, Salter alleged, possessed documents relating to the W.B. claim. The protective order prevented Salter from discovering the documents that related to that claim, and the motion in limine prohibited Salter from offering into evidence the substance of certain conversations that she alleged she had had with certain attorneys. Salter argues that she was denied the opportunity to discover and introduce evidence that would have supported her wrongful termination and fraud claims. After a thorough review of these motions, however, and after a careful consideration of Salter's arguments on this issue, we fail to see how the evidence that she sought to obtain and introduce would have presented a fact question precluding summary judgment on the wrongful termination and fraud claims. Therefore, we cannot hold the trial court in error for granting the motions.
AFFIRMED.
KENNEDY, J., concurs.
HORNSBY, C.J., and SHORES, J., concur specially.
JONES, J., concurs in the result.
HORNSBY, Chief Justice (concurring specially).
I concur with the majority's resolution of the issues presented by this appeal. However, because I am concerned by the Court's continued adherence to a strict interpretation of the employment-at-will rule, I concur specially. I agree that this appeal does not present facts that would justify the creation of a "public policy exception" to the employment-at-will rule. However, I believe that there is a place in our common law for a public-policy-based remedy for employees who may be subjected to "employment blackmail" for doing or not doing certain acts. It is beyond question that the employment-at-will rule allows employers to effectively pressure employees to commit wrongful or illegal acts through the threat of dismissal for not complying with the employer's demands.
Much has been written recently on the propriety of adopting a "public policy" exception to the employment-at-will rule. See, e.g., Max, A New Tort in Alabama: Wrongful Termination in Violation of Public Policy, 12 Am.J.Trial Advoc. 39 (1988); Schmidt, Development of the Public Policy Exception to the At-Will Doctrine, 29 Ariz.L.Rev. 295 (1987); Recent Decisions, Employment-At-Will/Public Policy Exception, 75 Ill.B.J. 96 (1988); Perspective, Employment At Will In Alaska: The Question Of Public Policy Torts, 6 Alaska L.Rev. 269 (1989); Note, Sterling Drug, Inc. v. Oxford: Arkansas Adopts the Public Policy Exception to the Employment-at-will Doctrine, 42 Ark.L.Rev. 187 (1989); Note, Employment-at-Will Employers May Not Discharge At-will Employees for Reasons that Violate Public PolicyWagenseller v. Scottsdale Memorial Hospital, No. 17646 (Ariz. June 17, 1985), 1986 Ariz.St.L.J. 161; Comment, Employment At Will: The Time Has Come For Alabama To Embrace Public Policy As An Exception To The Rule Of Employment At Will, 19 Cumb.L.Rev. 373 (1989); Note, Legislative Attempts to Modify the Employment At-Will Doctrine: Will the Public Policy Exception be the Next Step?, 14 J.Corp.L. 241 (1988); Comment, Employment LawTermination of Employee At-Will in Violation of Public Policy, 72 Mass.L.Rev. 45 (1987); Note, Employment at Will: Missouri Recognizes the Public Policy Exception, 52 Mo. L.Rev. 677 (1987); Recent Developments, Labor LawEmployment At WillPublic Policy Exceptions To The Employment At Will Doctrine, 53 Tenn.L.Rev. 199 (1985); Note, LaborEmployment at WillPublic Policy Exception Recognized, 11 U.Ark. Little Rock L.J. 617 (1988-89). Clearly there is considerable *1056 scholarly debate in the law regarding liberalizing the common law rule of employment at will.
Alabama, however, has clung tenaciously to the original formulation of the rule: an employee at will may be dismissed for a good reason, a bad reason, or no reason at all. Montgomery v. Big B, Inc., 460 So. 2d 1286 (Ala.1984). The rule has been rigidly enforced and has been the cause of much injustice in the name of law. See, e.g., Wagenseller v. Scottsdale Memorial Hospital, 147 Ariz. 370, 710 P.2d 1025 (1985) (employee terminated for refusal to participate in indecent exposure); Meeks v. Opp Cotton Mills, 459 So. 2d 814 (Ala.1984) (employee fired for having filed workmen's compensation claim); Reich v. Holiday Inn, 454 So. 2d 982 (Ala.1984) (employee alleged that she was fired for refusing to pay invoices to dummy corporation set up to defraud company shareholders); Bender Ship Repair, Inc. v. Stevens, 379 So. 2d 594 (Ala.1980) (employee fired for serving on grand jury and thereby missing work); Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977) (employee alleged that she was terminated for refusal to falsify medical records); Petermann v. International Brotherhood of Teamsters, Local 396, 174 Cal. App. 2d 184, 344 P.2d 25 (1959) (employee terminated for refusal to commit perjury).
No one would argue that the law should protect conduct by employers that would approach that which is set out above. The legislature has now sought to give protection to employees who must file workmen's compensation claims and those who are called to jury service. See, Code 1975, § 25-5-11.1 and § 12-16-8.1. The time will come when this Court must seek to protect employees from employers' fraudulent or criminal conduct despite what the employee's legal status may be.
I do not advocate an exception that would swallow up the rule of employment at will. There is still a place for that rule in our law. However, this court should not allow employers to terminate their employees for a refusal to commit a wrongful, fraudulent, or illegal act, nor should an employer be allowed to subject an employee to unreasonable or outrageous physical dangers and then terminate the employee should he refuse to work under such dangerous conditions.
There is an undeniable trend toward the adoption of a "public policy" based remedy for employees at will who are terminated for bad reasons. Though the statement of the remedy may vary, numerous courts have adopted a public policy exception. See, e.g., Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3d Cir.1983); Newman v. Legal Servs. Corp., 628 F. Supp. 535 (D.D. C.1986); Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Wheeler v. Caterpillar Tractor Co., 108 Ill. 2d 502, 92 Ill.Dec. 561, 485 N.E.2d 372 (1985); Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (1982); Palmateer v. International Harvester Co., 85 Ill. 2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876 (1981); Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974); Monge v. Beebe Rubber Co., 114 N.H. 130, 316 A.2d 549 (1974); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Kouff v. Bethlehem-Alameida Shipyard, 90 Cal. App. 2d 322, 202 P.2d 1059 (1949). This list of cases is by no means exhaustive of all of the jurisdictions that have stated a public policy remedy.
In Palmateer, supra, the court stated:
85 Ill. 2d at 130, 52 Ill.Dec. at 15-16, 421 N.E.2d at 878-79.
*1057 Any remedy based on a public policy exception to the employment-at-will doctrine should be narrowly tailored to avoid any undue infringement on the employer's right to discipline and control his employees. Thus, the remedy should be limited in its application and should address only those terminations that "strike at the heart" of a citizen's personal rights. I would limit the public policy remedy so as to address only terminations that result from an employee's refusing to commit a criminal, fraudulent, or otherwise illegal act. Of necessity, therefore, I would overrule Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977), to the extent necessary to effectuate this remedy.
SHORES, J., concurs.
JONES, Justice (concurring in the result).
I am so unalterably opposed to the majority of the Court's opinion in Hinrichs v. Tranquilaire Hospital, 352 So. 2d 1130 (Ala.1977), that I cannot agree that it should be cited as authority for this or any other holding by this Court. Nonetheless, I agree that the undisputed facts of this case require a conclusion that the trial court properly entered Alfa's summary judgment.
[1] Although the trial court indicated in its judgment that it was dismissing the wrongful termination claim pursuant to Alfa's Rule 12(b)(6), Ala.R.Civ.P., motion, it appears to us that the trial court considered matters outside the pleadings, and, therefore, that that motion was treated as one for summary judgment under Rule 12(b).
[2] Salter made other allegations of breach of contract and fraud, and her claims based on those other allegations remain pending below.
[3] Salter's agent's contract read, in pertinent part, as follows:
"We both agree that this contract, together with any and all riders and supplements hereto, shall terminate:
"A. Ten days following written notice of termination by either party to the other party computed from date of mailing said notice to the last known address of such other party by registered or certified mail. Either party may elect to so terminate this contract, and no cause shall be required."
[4] Both Meeks and Bender Ship Repair have been effectively overruled by the Legislature's adoption of statutory rules to the contrary. See Ala.Code 1975, § 12-16-8.1, which overruled Bender Ship Repair, and Ala.Code 1975, § 25-5-11.1, which overruled Meeks.
[5] Salter does not argue that she should be allowed to pursue the fraud claim under a "public policy" exception to the employee-at-will doctrine. We note, however, that Hinrichs v. Tranquilaire Hospital, supra, would appear to preclude recovery against Alfa under that theory. | April 12, 1990 |
595f0ebb-4224-4be4-a401-3c7524b4d2ce | Ex Parte Canady | 563 So. 2d 1024 | N/A | Alabama | Alabama Supreme Court | 563 So. 2d 1024 (1990)
Ex parte Larry CANADY.
(Re Larry CANADY v. Sam RANDOLPH and J.P. Randolph, et al.)
89-583.
Supreme Court of Alabama.
April 27, 1990.
*1025 Hoyt Elliott, Jasper, for petitioner.
Edward F. Morgan, Tuscaloosa, for respondents.
ALMON, Justice.
Larry Canady petitions this Court for a writ of mandamus directing the Honorable James C. Brotherton of the Circuit Court of Walker County, Alabama, to vacate his order transferring an action filed in Walker County to Tuscaloosa County.
On June 22, 1989, Canady, a resident of Illinois, filed a complaint against two residents of Tuscaloosa County. The complaint included claims for damages, alleging breach of contract and fraud; for a declaration of Canady's rights under a lease of property located in Walker County; and for injunctive relief. On July 18, 1989, the defendants filed a motion requesting that the action be transferred to Tuscaloosa County. On September 7, 1989, the trial judge granted the defendants' motion and ordered the action transferred. Following the transfer Canady amended his complaint, adding a Walker County resident as a defendant, and then filed a motion to reconsider the order of transfer. That motion was denied.
When ruling on a motion to transfer, the trial court must determine whether venue was proper at the time the action was filed. If venue was not appropriate, the action shall be transferred. Ex parte Parker, 413 So. 2d 1105, 1106 (Ala.1982); Rule 82(d), Ala.R.Civ.P. In addition, Ala. Code 1975, § 6-3-21.1(a), gives circuit courts the authority to transfer a civil action from one appropriate venue to another appropriate venue "for the convenience of parties and witnesses, or in the interest of justice." Transfers under that statute are within the trial judge's discretion.
Canady's original complaint contained claims alleging breach of contract and fraud, and it sought declaratory and injunctive relief. An action on a contract, "except as may be otherwise provided, must be commenced in the county in which the defendant or one of the defendants resides." Ala.Code 1975, § 6-3-2(a)(2). In personal actions, such as fraud, venue is proper both in the county where the defendant resides and in the county where the act or omission that gave rise to the claims occurred. § 6-3-2(a)(3); Ex parte Lundy, 429 So. 2d 998 (Ala.1983); Rule 82(b)(1)(A), Ala.R. Civ.P. Venue was appropriate in Tuscaloosa County for all of the claims in Canady's original complaint, as that was the county where the defendants resided. In addition, it appears that venue was appropriate in Walker County on the fraud claim and the claim seeking a declaratory judgment. Under the joinder provision of Rule 82(c), "Where several claims ... have been joined, the suit may be brought in any county in which any one of the claims could properly have been brought." See Rush v. Thomas Duckett Construction Co., 380 So. 2d 762 (Ala.1979).
*1026 Canady maintains that transfer to Tuscaloosa County was improper for two reasons: (1) he added by amendment a defendant who resides in Walker County; and (2) venue for his declaratory judgment action, seeking an interpretation of his rights under a lease to property located in Walker County, was proper only in Walker County. As stated earlier, proper venue is determined at the time an action is filed. Parker, supra. Therefore, Canady's addition of a Walker County defendant, almost one month after the transfer, does not affect the propriety of the transfer. Ex parte Wilson, 408 So. 2d 94, 97 (Ala.1981).
Rule 82(b)(1)(B), Ala.R.Civ.P., provides that actions against individual residents of this state "[m]ust, if the subject matter of the action is real estate ..., be brought in the county where the real estate or a material portion thereof is situated." Thus, Canady argues that his request for a declaratory judgment seeking an interpretation of his rights under a lease of Walker County property makes Walker County the only appropriate forum. We disagree. In Ex parte Nottingham, 522 So. 2d 777 (Ala. 1988), this Court held that for venue purposes an action on a lease is one in personam, not in rem, and is transitory and therefore may be brought in any county where other transitory actions could be brought. 522 So. 2d at 779. In Nottingham this Court issued a writ of mandamus ordering the trial court to vacate its order of transfer because that court, apparently holding that an action on a lease was an action in rem, had transferred the action to the county where the leasehold property was located. Id. Therefore, in accordance with this Court's holding in Nottingham, supra, we conclude that venue for Canady's request for a declaratory judgment was not confined to Walker County, but was also proper in Tuscaloosa County.
In his affidavit in response to the petition for writ of mandamus, Judge Brotherton states that one of the reasons he transferred this action to Tuscaloosa County was for the convenience of the parties and witnesses, pursuant to the discretion conferred on him by Ala.Code 1975, § 6-3-21.1 (Supp.1989). An important part of the dispute concerns certificates of deposit held by a bank in Tuscaloosa County. Canady is a resident of Illinois, and the only defendants involved at the time the transfer was made were residents of Tuscaloosa County. The facts presented do not show that the transfer for the convenience of the parties and witnesses was a clear abuse of the trial judge's discretion. In cases involving the exercise of discretion by a trial court, mandamus may issue to compel the exercise of that discretion. It may not, however, issue to control or revise its exercise except in a case of abuse of discretion. Ex parte Smith, 533 So. 2d 533, 534 (Ala.1988).
The trial judge did not abuse his discretion by transferring this case to Tuscaloosa County. Therefore, the petition for writ of mandamus is denied.
WRIT DENIED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur. | April 27, 1990 |
1c91b1c1-d23e-4721-9c6b-878a740f4c21 | Sapp v. Beech Aircraft Corp. | 564 So. 2d 418 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 418 (1990)
Lisa Collins SAPP, as administratrix of the estate of Chester L. Collins, deceased
v.
BEECH AIRCRAFT CORPORATION.
89-184.
Supreme Court of Alabama.
April 27, 1990.
Robert M. Echols, Jr., Birmingham, for appellant.
John M. Laney, Jr. and Thomas L. Oliver II of Rives & Peterson, Birmingham, for appellee.
ADAMS, Justice.
Plaintiff, Lisa Collins Sapp, as administratrix of the estate of Chester L. Collins, deceased (hereinafter "Sapp"), appeals from a summary judgment for the defendant, Beech Aircraft Corporation. We affirm.
On September 27, 1977, Chester L. Collins was killed when the Beechcraft King airplane he was piloting crashed at the Auburn-Opelika airport. According to Collins's co-pilot, the airplane hit some tall pine trees while approaching the runway, damaging the right wing and right propeller. Then, after hitting another group of trees, the plane crashed. The co-pilot escaped the airplane prior to its being engulfed in flames; however, Mr. Collins perished in the fire.
On September 12, 1979, Sapp, as administratrix of her father's estate, sued Beech Aircraft. Sapp contended that the seatbelt, which was a component part in the airplane which was manufactured by Beech Aircraft, was "defective" within the meaning of the Alabama Extended Manufacturer's *419 Liability Doctrine ("AEMLD"), and that the alleged defect caused Collins's death. Also named as a defendant was Hangar One, Inc., the seller of the airplane.
The trial court entered a summary judgment in favor of Hangar One on June 8, 1983. That judgment was made final, and Sapp did not appeal from it.
Beech Aircraft filed its motion for summary judgment on June 27, 1989. The Court heard oral argument and the parties filed briefs. At this point, there had been years of discovery. The trial court entered summary judgment in favor of Beech Aircraft. The trial court, in ruling on a summary judgment motion, may consider any evidence before it that would be admissible at trial, as well as any material submitted in support of or in opposition to the motion. Morris v. Morris, 366 So. 2d 676 (Ala.1978).
Beech Aircraft, the party moving for summary judgment, bore the burden of showing that no genuine issue of material fact existed and that it was entitled to a judgment as a matter of law. Burkett v. Loma Machine Manufacturing, Inc., 552 So. 2d 134 (Ala.1989); Rule 56(c), A.R.Civ.P.
We have stated the following regarding the AEMLD:
Casrell v. Altec Industries, Inc., 335 So. 2d 128, 132 (Ala.1976); see also Atkins v. American Motors Corp., 335 So. 2d 134, 141 (Ala.1976).
Moreover, this Court has defined "defect" and "defective" as those terms apply in regard to the AEMLD:
Casrell, 335 So. 2d at 133.
The definitive case setting forth the plaintiff's burden of proof regarding a defect under the AEMLD is Sears, Roebuck & Co. v. Haven Hills Farm, Inc., 395 So. 2d 991 (Ala.1981). In that case, with regard to the proof necessary to establish a prima facie case, we stated:
395 So. 2d at 995 (citations omitted).
In support of its motion for summary judgment, Beech Aircraft relied on affidavit testimony to the fact that the decedent's airplane had been subjected to a routine 100-hour inspection two months before the crash. During this inspection, the pilot's seatbelt was thoroughly inspected in accordance with industry standards and was found to be satisfactory in all respects.
In opposition to Beech Aircraft's motion for summary judgment, Sapp relied on two affidavits. The co-pilot stated in his affidavit that during the second impact of the plane with the trees, Collins's seatbelt unfastened. In his opinion, he said, Collins's death was a direct result of the seatbelt's failure.
Sapp also offered the affidavit of her expert witness, Don Hall. His affidavit stated in part:
The burden of proving that the product was in a defective condition at the time it left the hands of the seller is upon the plaintiff. Unless evidence can be produced that will support the conclusion that it was defective when it left the hands of the seller, the burden is not sustained. Atkins, 335 So. 2d at 146; Restatement (Second) of Torts, § 402A (1965), Comment g.
The only evidence before us shows that during the crash of an airplane, during the second impact with some trees, the decedent's seatbelt failed. There was no evidence that the seatbelt was defective at the time the plane left the hands of Beech Aircraft. Therefore, Sapp failed to meet her burden of proving that the seatbelt was defective. The summary judgment in favor of Beech Aircraft Corporation is, therefore, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | April 27, 1990 |
b498201a-4b63-4ddd-88cc-4da45fef4d1c | Ex Parte Wood | 564 So. 2d 860 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 860 (1990)
Ex parte Kenneth Houston WOOD.
Re Kenneth Houston Wood
v.
State.
88-1563.
Supreme Court of Alabama.
April 12, 1990.
J. Fletcher Jones, Andalusia, for petitioner.
Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for respondent.
KENNEDY, Justice.
Petitioner, Kenneth Houston Wood, was convicted of theft by deception, Code 1975, § 13A-8-3, of a $3,281.44 check, the property of Trinity Insurance Company of Kansas, Inc. ("Trinity"), and was sentenced to five years' imprisonment and was ordered to pay $3,281.44 in restitution. The Court of Criminal Appeals affirmed, without an opinion. 550 So. 2d 1096. We reverse and remand.
*861 The issues are (1) whether Wood was subjected to double jeopardy when he was tried on a second indictment charging theft of a check by deception, when the original indictment on which he was tried had charged a theft of currency and (2) whether the trial court erred by not charging the jury that Wood could not be found guilty of theft by deception if the evidence did not prove beyond a reasonable doubt that he did not honestly believe that he had a claim to the property.
Wood owned a 1980 Lincoln Mark IV automobile; he insured the vehicle with Trinity against loss or damage by collision and other perils. He secured the insurance through Rex Powell Insurance Agency. Rufus Terrell Andrews, Jr., was listed as an insured driver as an employee of Wood.
About five or six weeks before November 18, 1985, Wood lent the vehicle to Andrews. Approximately two weeks prior to November 18, 1985, Andrews damaged the vehicle in two separate accidents. First, Andrews drove the vehicle off a road and into a ditch, knocking the front bumper off the vehicle; in the second accident the vehicle collided with a carport, causing additional damage to the front end of the vehicle. The exact date of each accident is uncertain. Andrews testified that he and his father repaired the bumper after the first accident and that he did not tell Wood about his having driven the vehicle into the ditch until after December 30, 1985. Wood testified that he did not discover that the car had been damaged until the last of October or early November. After learning of the damage from Andrews' brother, Wood contacted his insurance agent about the claim, and they resolved to attend to the matter when Wood got the vehicle back from Andrews. However, on November 18, 1985, Andrews was involved in a third accident, which involved a collision with an FBI vehicle. This accident occurred when FBI agents blocked the path of Andrews's vehicle as he was attempting to escape a drug-related arrest. The FBI agent testified that the bumper of the vehicle was dislodged in the collision. The vehicle was seized by the FBI, and on December 20, 1985, Wood signed an agreement, which held the FBI harmless for the damage, and reclaimed possession of the vehicle. Andrews also testified, after viewing photographs of the vehicle after the collision with the FBI vehicle, that the damage on the vehicle was caused by his collision with the FBI vehicle and not by the other accidents.
On December 30, 1985, Wood filed a claim with his insurance agent, Reggie Powell. Powell testified that Wood told him that the vehicle was damaged when Andrews collided with a carport and that Wood informed him that the accident occurred approximately December 15, 1985. Wood testified that he was told about the first accident by Andrews's brother and that he told Powell that he did not know precisely what date the accident occurred and that Powell assured him that any date would suffice.
The insurance adjuster, Ronnie Kilgore, testified that he saw the vehicle on or about January 2, 1986, and observed that the bumper was not on the vehicle and that the vehicle had damage to both front fenders. On January 9, 1986, Wood signed an unsworn proof of loss statement, which stated that the loss did not originate by any act, design, or procurement on the part of the insured and that no material fact had been withheld from the insurer. Thereafter, Wood received a check from Trinity in the amount of $3,281.44 for the damage to the vehicle. Kilgore also testified that intentional damage by the insured would not have been paid; that if the accident had happened in November, the collision coverage would have paid the claim if the damage was not intentional; and that, given a hypothetical case similar to the accident involving the FBI vehicle, the claim would not have been paid, under the terms of the policy.
An employee of the body shop that repaired the vehicle testified that Wood paid for the repairs in January 1986 and that he came back a month or two later to the shop and requested a copy of the repair estimate. Wood denied that he went back to the body shop to get the estimate after the repairs had been made.
*862 Wood testified that he did not intend to cheat the insurance company. Wood stated:
In August 1987, Wood was tried under an indictment that charged him with theft by deception, specifically the theft of $3,281.44 from Trinity. The trial court granted Wood's motion for acquittal on the ground of a fatal variance, because the evidence at trial proved the theft of a check and not or currency. Wood was re-indicted for "theft by deception of a check, draft, or commercial instrument, the property of Trinity Insurance Company." Wood raised the defense of former jeopardy, and moved for dismissal, which the trial court denied. In September 1988, Wood was convicted by a Covington County jury of theft by deception.
Wood argues that he has been placed in double jeopardy by being put to trial under the second indictment. We disagree.
In reviewing double jeopardy claims, the identity of the offenses, not the act out of which the offenses arose, must be examined.
Wright v. City of Montgomery, 477 So. 2d 489, 490-91 (Ala.Crim.App.1985) (citations omitted).
In applying the identity-of-offenses test to this case, we conclude that Wood's retrial did not place him in double jeopardy. The evidence necessary to sustain a conviction for theft by deception of $3,281.44 in currency would not be sufficient to sustain a conviction for theft by deception of a check, draft, or commercial instrument, the property of Trinity, and vice versa. Therefore, the trial court did not err by denying dismissal on the ground of double jeopardy.
Wood argues that the trial court erred by refusing to give certain requested jury charges. We agree. Wood's defense at trial was that he made the insurance claim in the honest belief that he was entitled to the money through his insurance policy with Trinity. In fact, Wood did not receive any of the insurance money; it was used entirely to pay for the repairs to his vehicle. Wood requested the following jury charges, which the trial court refused:[1]
After Wood's attorney made the proper objections to the trial court's refusal, the trial court instructed the jury, in part, that "deception occurs when a person knowingly creates or confirms another's impression which is false and which defendant does not believe to be true." The State argues that this charge substantially covered Wood's requested charge concerning his "honest belief" and that the trial court therefore did not commit reversible error.
Code 1975, § 13A-8-12, provides:
(Emphasis added.) In this case, Wood was indicted under § 13A-8-3, and the State was required to prove beyond a reasonable doubt that Wood, by making the insurance claim, specifically intended to deceive Trinity. Wood injected the defense that he honestly believed that he had a claim to the insurance money. The State was required to prove beyond a reasonable doubt that Wood, by making the insurance claim, specifically intended to deceive Trinity. We must conclude from the evidence that Wood was entitled to a jury charge incorporating the "honest belief" defense as set forth in § 13A-8-12, supra. The jury should decide whether Wood did in fact honestly believe that he had claim to the insurance money. The trial court's charge failed to properly instruct the jury as to Wood's rights under § 13A-8-12, and we determine that this error probably injuriously affected Wood's substantial rights. See Rule 45, A.R.App.P.
Therefore, the judgment is due to be, and it is hereby, reversed, and the cause is remanded.
REVERSED AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and HOUSTON, JJ., concur.
[1] Wood argues that the trial court also erred by refusing requested jury charge number 22. However, we need only address requested jury charge number 13 to decide the issue. | April 12, 1990 |
50f39de4-0d08-4903-a0ab-56587b6dedd7 | E & S FACILITIES, INC. v. Precision Chipper Corp. | 565 So. 2d 54 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 54 (1990)
E & S FACILITIES, INC., et al.
v.
PRECISION CHIPPER CORPORATION, et al.
BATES INSURANCE AGENCY, INC.
v.
PRECISION CHIPPER CORPORATION, et al.
87-1356, 87-1366.
Supreme Court of Alabama.
April 12, 1990.
Rehearing Denied June 22, 1990.
*55 Robert L. Williams of Norman, Fitzpatrick, Wood, Wright & Williams, and De Martenson of Huie, Fernambucq & Stewart, Birmingham, for appellant E & S Facilities, Inc.
Walter R. Byars of Steiner, Crum & Baker, Montgomery, and James S. Lloyd and James C. Gray III of Smith & Taylor, and Tom Burgess of Clark & Scott, Birmingham, for appellant Bates Ins. Agency, Inc.
Hobart A. McWhorter, Jr., John M. Johnson and Michael R. Pennington of Bradley, Arant, Rose & White, Birmingham, for appellees.
ADAMS, Justice.
This action comes before this Court on consolidated appeals involving alleged fraud in the procurement of products liability insurance insuring the appellee Precision Chipper Corporation (hereinafter "Precision"). The jury returned separate verdicts against Bates Insurance Agency, Inc. (hereinafter "Bates"), in the amount of $875,000 and against E & S Facilities, Inc. (hereinafter "E & S"), in the amount of $875,000. We affirm.
In late 1981, Precision contacted Bates, a Birmingham independent insurance dealer with whom Precision had dealt for its insurance needs since 1964, seeking products liability insurance for its products. Precision wanted the best insurance possible, and coverage that would leave no gaps. Bates conceded that it understood that Precision wanted "occurrence basis" insurance that would cover liability from occurrences that occurred within the policy period. Bates, along with E & S, an insurance broker/wholesaler, informed Precision that there were no such policies available and that the best it could do would be a "claims made" policy available from Beacon Insurance Company (hereinafter "Beacon"), which would base coverage on the time the actual claims were made.
E & S was the managing general agent for Beacon and Safety Mutual Casualty Corporation (hereinafter "Safety Mutual") and did the actual writing of the policies. Charles Garrison, vice president of E & S, wrote the policy proposal. Garrison included a special claims-made restriction in the policy that would deny coverage if an accident occurred within the policy period but a claim based on that accident was not made until after the policy period had expired. Garrison also included an exclusion in the policy that would exclude from coverage all products made before January 1, 1982. The restriction and the exclusion amounted to a denial of coverage unless the particular *56 product was made on or after January 1, 1982, and a claim was filed before the end of the policy periodDecember 31, 1982. The total premium paid by Precision for the 1982 coverage amounted to $90,860. An "umbrella" policy was issued by Safety Mutual that provided that same products liability coverage for any liability in excess of $500,000. This policy contained the same claims-made restrictions. It was undisputed that the 1982 policy was on a claims-made basis.
Late in 1982, Bates came to Precision in an attempt to renew the insurance policy. At this time it was again made clear that Precision desired occurrence-basis insurance coverage. Again Bates informed Precision that the only type policy that was available was the claims-made type policy and recommended renewal of the current policy. Although the evidence is not clear, it appeared that Precision tentatively agreed to the renewal of the policy.
In January 1983, Precision was approached by Trammell-Harper Associates (hereinafter "Trammell-Harper") with a proposal of occurrence-basis coverage for all machines, regardless of the date of manufacture. Precision presented the proposal to Bates and informed it that if its companies were unable to provide similar coverage, then Precision would move its insurance business to Trammell-Harper. Bates, in turn, presented this Trammell-Harper proposal to Garrison at E & S. Garrison conveyed to Bates that he would "match" the Trammell-Harper proposal, or said something in words to that effect. Bates informed Precision that they would provide the same occurrence-basis type coverage as Trammell-Harper offered. Precision agreed to allow Bates to keep the account and write the new policy.
The policy Bates actually received from Garrison was not an occurrence-basis policy based on the evaluations of Bates personnel and outside insurance brokers. The policy, while written on an occurrence form, contained substantial changes, endorsements, and restrictions that varied from normal occurrence coverage. The final policy Bates received after changes were made by Garrison still contained the claims-made restrictions, although the restriction on the date of products manufactured was deleted. The actual policy stated in several places that it was a claims-made policy. Garrison's final word on the policy was that he had done everything he could do.
Marshall Culifer, vice president of Bates, reviewed the policy and contacted Garrison. Garrison stated that he knew it was not an occurrence policy and that it could not be. Bates sent written notice to Precision that occurrence coverage was in place. Precision was also sent a written insurance binder which indicated that coverage was on an occurrence basis and that it was a temporary policy to be in effect until the final policy was issued. Precision, however, did not receive a copy of the 1983 policy until some time in 1984, when Beacon began to deny coverage on several claims. A similar umbrella policy was also issued for 1983. During this period, Bates contacted various other insurance companies to see if there was an occurrence-basis policy available on the market to provide Precision with the type of coverage it desired.
Precision was never told of the doubts Bates had as to the current 1983 policy, nor of the attempts to locate broader insurance. Bates purchased the still-available Trammell-Harper occurrence policy for Precision for the 1984 year. However, Bates failed to purchase "tail coverage" which would eliminate the gaps caused by the switch of carriers. Precision was not told of these gaps. The gaps would result where an accident occurred before the new occurrence-basis coverage took effect and a claim was not made until after the 1983 claims-made basis policy (represented as "occurrence-basis") had expired.
In 1984, several lawsuits were filed against Precision based on 1982 and 1983 occurrences. Beacon denied coverage on these claims, as they did not fall within the coverage period. One claim, for example, was based on a 1983 occurrence but was not filed until 1984. Beacon denied coverage, stating that the 1983 policy was a claims-made policy and the claim was not *57 made until 1984, and, thus, was outside the coverage period. When Beacon denied coverage on these claims, it attached a copy of the 1983 policy to the denial. This was the first time Precision had seen the policy; it subsequently realized it was a claims-made policy rather than an occurrence-basis policy.
On November 20, 1984, Precision filed suit against Bates, E & S, Beacon, and National Union Fire Insurance Company ("National Union"), alleging breach of contract, bad faith, and fraud, and seeking reformation of the policy to reflect the true intention of the parties. Precision later filed an amended complaint dismissing National Union, as service had never been made, and adding Safety Mutual as a defendant. In its amended complaint, Precision further alleged wanton and negligent failure to procure insurance coverage. Safety Mutual filed a complaint in intervention and sought a declaratory judgment that its 1982 and 1983 umbrella policies provided no coverage for the suits filed against Precision. Before trial, the claims against Beacon and Safety Mutual were severed by the trial court and the case proceeded to trial against Bates and E & S.
At the close of all the evidence, Precision amended its complaint to allege only fraudulent misrepresentation, deceit, and concealment, and negligent failure to procure insurance. These issues were presented to the jury.
The trial court submitted four separate verdict forms to the jury at the close of the trial: one which would allow the jury to return a verdict on behalf of both defendants; one which would permit the jury to return a verdict against one defendant, but not the other; and two separate forms to return verdicts against each defendant. The four verdict forms were agreed upon as requested by the defendants during the charge conference.
The jury returned separate verdicts against each defendant, with one verdict assessing damages against Bates in the amount of $875,000 and the other assessing damages against E & S in the amount of $875,000. At the request of counsel, the court inquired of the foreman whether the jury intended to award a total of $875,000 or $875,000 against each defendant for a total of $1,750,000. The foreman indicated that the jury intended to award $875,000 against each defendant. The trial court entered the separate judgments against Bates and E & S.
The defendants timely filed motions for judgment notwithstanding the verdict, new trial, and remittitur. The defendants also filed motions to alter, amend, or vacate the judgment on the grounds that a court order signed by the trial judge after the verdicts were rendered described events that occurred off the record and failed to set out all the facts in a clear, fair, and impartial manner. All post-judgment motions were not ruled on by the trial court and were deemed overruled as a matter of law after 90 days, pursuant to Rule 59.1, A.R.Civ.P. After the defendants appealed to this Court, the case was remanded to the trial court for an order on the question of excessiveness of the jury verdict, pursuant to Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986).
The parties raise many issues for our review on appeal. Due to the complexity of the case, we have consolidated several of the issues for clarity.
The first area of the appellants' argument that we will review is the submission of the claims to the jury. Bates and E & S argue that the trial judge erred in refusing to determine as a matter of law that the policies in question provided coverage and were unambiguous before submitting the claims to the jury. Bates and E & S maintain that had the trial court interpreted the policies, as they contend must be done, the judge would not have submitted the claims of fraud and negligent procurement to the jury, presumably because in their opinion, he would have found the policies unambiguous. Specifically, Bates and E & S argue that the 1982 policy provided claims-made basis coverage and the 1983 policy provided occurrence-basis coverage, and that both are clear and unambiguous, and, therefore, *58 that there is no question of construction for the jury, but, rather, a duty of enforcement for the trial judge.
Therefore, we must first determine whether the trial judge erred in submitting the claims to the jury without making the determinations as to the policies. Resolution of this question involves a two-step inquiry. We must determine first whether the policies are ambiguous and, if they are, how and by whom the ambiguities are to be interpreted. We will then address the alternative argument made by the appellants that even if it was proper for the jury to hear the claims, the facts did not support the verdict.
We find the appellants' contention that the policies were clear and unambiguous to be totally without merit. Precision concedes that the 1982 policy provided claims-made coverage as it was represented to provide. However, there is no agreement as to the 1983 policy. Therefore, we will concentrate on the 1983 policy.
The evidence at trial indicated that while the 1983 policy was written on an "occurrence" form, it stated clearly that it was a claims-made policy and it contained various restrictions and endorsements that made it appear less like an occurrence-basis policy and more like a claims-made policy. In fact, Bates was unsure of the policy when it received the policy from E & S. After an in-house examination left Bates uncertain, Bates turned to other outside insurance dealers. These dealers were also uncertain as to the type of policy.
The numerous ambiguities in the policies cannot be resolved from an examination or interpretation of the writing itself. The ambiguities are in the type of the policy and type of coverage"claims made" or "occurrence." We are not concerned with the meaning of individual words within the documents, but, rather, with the entire policy and the type of coverage provided. Resolving this question can be accomplished only by an examination of the representations, actions, and intentions of the parties involved in the procurement and sale of the policies.
In Upton v. Mississippi Valley Title Insurance Co., 469 So. 2d 548, 555 (Ala. 1985), we noted that "`[i]t is ... the province of the court, not the jury, to construe a policy, even though ambiguous and unclear and not void for uncertainty, where its interpretation must come from the writing itself without the aid of evidence aliunde or facts in pais.'" (Quoting Aetna Life Ins. Co. v. Hare, 47 Ala. App. 478, 256 So. 2d 904 (1972) (emphasis added in Upton).) It is, therefore, within the jury's province when the policy must be interpreted through facts outside the document. In Upton, the document was unambiguous and the trial judge "had the duty only to construe and enforce the policy as it was written, giving it effect according to the obvious meaning of provisions expressed in unambiguous terms." 469 So. 2d at 555.
As we have stated, the policy was ambiguous and those ambiguities could be resolved only through evidence and facts outside the document itself. The trial court was unable to resolve the ambiguity without considering facts outside the document and, therefore, was correct in submitting the claims to the jury. It was for the jury to examine the testimony of the parties involved and to determine exactly what the parties intended. See State Farm Mutual Automobile Insurance Co. v. Lewis, 514 So. 2d 863 (Ala.1987) (interpreting ambiguous contract requires that intent of parties be considered).
The appellants, in the alternative, argue that even if the trial judge was correct in submitting the claims to the jury, the facts do not support the verdict. The appellants argue that the facts do not support the existence of the elements necessary to establish fraud. In Coastal Concrete Co. v. Patterson, 503 So. 2d 824 (Ala. 1987), we set out the elements of fraud:
Id. at 826. See also Pugh v. Southern Life & Health Insurance Co., 544 So. 2d 143 (Ala.1988).
Appellants contend that several of the requisite elements are not present. E & S argues that Charlie Garrison never meant his statement that he would match the Trammell-Harper occurrence proposal, to mean precisely match, and that he could not make such a statement, as he had no authority to do so. Thus, E & S contends, no false representation has occurred. E & S also argues that Garrison did not misrepresent a material fact and that Precision did not rely on the representation and that if it did then any reliance was unreasonable. We have reviewed the record, and we find no merit in any of the appellants' contentions. The facts present overwhelming evidence of numerous instances of fraudulent representations. The record and the testimony at trial indicate that Bates left the meeting with Garrison with the clear understanding that E & S would match the Trammell-Harper proposal and provide occurrence-basis coverage. Furthermore, the evidence revealed that Garrison, in fact, stated that he would match the offer or provide occurrence coverage for Precision.
E & S further argues that because Garrison did not have the authority to make such a statement, he could not have done so. We find this equally unpersuasive. The fact that Garrison did not have authority does not preclude him from making the statement. The evidence showed that Garrison was faced with the possibility of losing all of Precision's business if he could not match the Trammell-Harper proposal. Evidence at trial also showed that Garrison stated that he wrote a limited policy to insure a profit. We find ample evidence in the record to support a finding of the elements of fraud and to support the verdict.
E & S contends that Garrison made no representation of a material fact, because, it says, at most he was promising to perform in the future. In order to establish fraud in a promise to perform in the future, it must be shown that the defendant, at the time of the promise, did not intend to do the act but intended to deceive. Coastal Concrete Co., 503 So. 2d at 826.
Here again, the facts clearly suggest that Garrison made the promise to match the Trammell-Harper proposal in order to prevent Precision from relocating its business and that he did not intend to issue an occurrence policy. In 1982, as well as in 1983, Bates and E & S informed Precision that Bates could not obtain an occurrence-basis policy and that its policy was the best it could do. However, when Precision became aware that it could get such a policy, Garrison was quick to promise that he would provide the same coverage. Garrison's actions suggest that his sole motive was protecting his account and business with Precision and that he, in fact, never intended to match the proposal, as he stood to make more profit by issuing a limited claims-made policy to Precision. When Marshal Culifer of Bates contacted Garrison to question him about the 1983 policy, Garrison stated that he knew it was not an occurrence-basis policy and that it could not be an occurrence-basis policy, because he did not have authority to issue such a policy.
As for Garrison's intent to deceive, the second element, it is equally clear that there was evidence that he concealed his intentions from Bates, as well as from Precision. Garrison wrote the policy on an "occurrence" form presumably to give the appearance that the policy was an occurrence policy, while, in fact, the policy was so limited that it provided narrow claims-made coverage, at best. Precision was not provided with a copy of the policy until Beacon began to deny coverage in 1984. Garrison informed Bates that the policy "was the best he could do" or that "that's *60 all there is," indicating that Garrison had never intended to issue the promised policy.
There was evidence of a fraud and evidence that Bates actively engaged in perpetrating the fraud on Precision. While Bates entertained serious doubts as to the coverage the policy provided, it did nothing to inform Precision of its doubts. In fact, Bates informed Precision on several occasions, through written notice and a temporary policy, that occurrence coverage was in place.
The final element of fraud that E & S argues is not present is reliance by Precision. E & S contends that Precision could not have reasonably relied on any representations made by E & S. However, the facts suggest otherwise. Garrison informed Bates that he would match the Trammell-Harper proposal and would provide occurrence coverage. Bates, in turn, informed Precision of this and later, on two separate occasions, told Precision that the policy was in place. With respect to Bates, Precision's reliance was certainly justified. Precision, in addition to having dealt with Bates for insurance since 1964, received written and oral notice that its insurance would be on an occurrence basis. Precision's reliance as to E & S was also justified as E & S promised to match the policy offered by Trammell-Harper. While this was conveyed to Precision through Bates, the reliance was still reasonable and justifiable under the circumstances. See Hickox v. Stover, 551 So. 2d 259 (Ala.1989).
Finding that the evidence presented to the jury overwhelmingly supported a finding of the elements necessary to establish fraud, we also find evidence that Precision was proximately harmed as a result of this fraud. We will specifically address the question of damages later in this opinion.
The appellants finally argue that the trial court erred when it admitted a non-party's complaint into evidence. The trial court admitted into evidence the complaint of Safety Mutual for the limited purpose of the expression of Safety Mutual's position with regard to the claim of the plaintiff and to prove that Safety Mutual denied coverage to Precision. Safety Mutual, as noted, issued the umbrella policy that covered any liability in excess of the primary Beacon policy. We find no error in the limited introduction of this complaint. Furthermore, if there was error, it was cured by the trial court's limiting instruction to the jury as to the purpose of the admission. Finally, the record indicates that any objection the appellants may have had to this introduction was withdrawn; thus the alleged error cannot be raised on appeal as erroneous.
Appellants' next alleged error regards the separate verdict forms that the trial judge submitted to the jury. They argue that the separate verdicts returned by the jury constituted an apportionment of damages. In addressing these issues, we must first determine the validity of the separate verdict forms.
The record indicates that the trial judge agreed to the four separate verdict forms at the appellants' request during the charge conference. Bates and E & S were concerned with identifying any damages against each of them in the event of a plaintiff's verdict and with having verdict forms that would allow the jury to separately identify damages against each defendant. These forms were agreed upon and were eventually submitted to the jury. No objection was made to these forms, nor to the instruction that accompanied them.
The appellants now argue that it was error to use these forms, claiming that they amount to an apportionment of damages. The appellants made no objection at trial, but rather agreed to, and, in fact, asked for these forms; therefore, they cannot now argue error in the use of these verdict forms. Rainsville Bank v. Willingham, 485 So. 2d 319 (Ala.1986) (consent to form of verdict at trial bars attack on appeal).
Assuming, arguendo, that the appellants could be heard to argue here that it was error to use separate verdict forms, we do not believe their argument to be compelling. Appellants argue that the separate *61 verdict forms are an apportionment of damages, which, they correctly point, would be illegal in Alabama. However, we do not believe the use of these verdict forms amounted to an apportionment of damages. Several of our recent decisions prove dispositive of this question.
In Horton v. Shelby County Medical Center, 562 So. 2d 127 (Ala.1989), we addressed substantially the same question. In Horton, the trial court submitted seven separate verdict forms to the jury. We disposed of the arguments against the separate verdict forms on two grounds. First, as in the present case, counsel made no objection to the separate forms. We held that "once the jury charge has been accepted by counsel, counsel cannot, on appeal, argue error in the giving or refusal to give a particular charge." Id. See also General Sales Co. v. Miller, 454 So. 2d 532 (Ala. 1984) (failure to object to jury charges meant the alleged error had not been preserved for review). Second, we held that, assuming error could be assigned to the forms, "the law does not require any particular form in which a verdict must be rendered so long as it responds substantially to the issues raised." Id. (citing Whitmore v. First City National Bank of Oxford, 369 So. 2d 517 (Ala.1979). Last, it was noted that the separate verdict forms did not allow an apportionment of damages, and, thus, were not submitted in error.
In the case at hand, the four separate verdict forms were submitted to the jury at the request of the defendants and the jury returned verdicts of $875,000 against Bates and $875,000 against E & S. Because we find that the appellants cannot now assign error to the very verdict forms they requested and to which they made no objection, and that the use of these forms cannot be construed as an apportionment of damages, we see no need to address the issue of the divisibility of the injuries as briefed by the parties.
We must, however, address another issue directly related to the use of the separate verdict forms. Appellants cite as error the trial judge's clarification of the verdicts returned. Appellants contend that after the jury returned the verdict, the jury was discharged by the court. When a question as to the amount of the verdict arose, the trial judge reassembled the jury and polled them as to their intentions with respect to the verdict. Appellant E & S argues that the trial judge committed reversible error by reassembling the jury after it had been discharged and Bates contends that the polling of the jury was an attempt to correct the verdict.
With respect to the alleged error regarding the reassembly of the jury, we find no merit in this contention. The trial court's order does not indicate that the jury was discharged, but, rather, indicates that the jury had not been released by the court or the bailiff prior to the judge's polling. Clearly, the trial judge's recollection of what transpired is due to be given considerable weight over affidavits of counsel and is deemed to be conclusive for this appeal. See Clements v. Webster, 425 So. 2d 1058 (Ala.1982) (absolute truth imputed to record); Richards v. Elrod, 284 Ala. 19, 221 So. 2d 378 (1969); Gorum v. Samuel, 274 Ala. 690, 151 So. 2d 393 (1963); Ledbetter-Johnson Co. v. Hawkins, 267 Ala. 458, 103 So. 2d 748 (1958).
Bates's argument that the polling of the jury by the trial judge amounted to a correction of the verdict is equally without merit. There was no motion by either side to poll the jury once its verdict was returned. To prevent confusion, the trial judge polled the jury for the sole reason of clarification. We find no error in the trial judge's actions.
Appellant Bates next argues that the trial judge erred in refusing to give certain jury instructions. Particularly, Bates argues that the trial court's refusal to give requested instructions 7 and 12 dealing with questions of the duty of Bates to obtain insurance through a carrier licensed to do business in Alabama and to inquire into the financial status of the insurance company was error.
The statute upon which Bates relies for this objection, Ala.Code, 1975 § 27-10-20, *62 was read in its entirety to the jury. We find no error in the trial judge's exercising his discretion not to read the requested instruction.
Appellant E & S further argues that the amended complaint filed by Precision amounted to a pro tanto substitution of the original complaint and did not relate back for the purpose of determining compliance with the statute of limitations.
E & S argues that the amended complaint filed by Precision on January 19, 1988, did not refer to the prior complaint or reallege any allegations contained in the prior complaint. Therefore, E & S contends, the amended complaint is a pro tanto substitution and causes the statute of limitations to bar Precision's cause of action. Relying on our holding in Zeigler v. Baker, 344 So. 2d 761 (Ala.1977), E & S asserts that in order for an amended complaint to relate back there must be an "amendment" and that there can be no such amendment when no mention of the original complaint is made in the amended complaint.
Appellant's reliance on Zeigler is somewhat misplaced. Relation back is governed solely by Ala.R.Civ.P. 15(c). Rule 15(c) states in part:
We have recently had the opportunity to rule on a situation very similar to the one at hand. In Money v. Willings Detroit Diesel, Inc., 551 So. 2d 926 (Ala.1989), it was argued that the plaintiff's amended complaint did not relate back to the time of the filing of the original complaint and was, thus, barred by the statute of limitations. We noted:
Id. at 928 (quoting Taylor v. Dothan City Board of Education, 513 So. 2d 623, 624 (Ala.Civ.App.1987)) (citations omitted). In Money, the trial court did not abuse its discretion, and we are of the opinion here, also, that the trial judge did not abuse his discretion in allowing the amendment. Further, we noted that where the amendment adds an additional theory and that theory is based on the same facts, "no prejudice is worked upon the other party." Id. at 929 (quoting Whitfield v. Murphy, 475 So. 2d 480, 482-83 (Ala.1985)). See Katopodis v. Pope, 542 So. 2d 1229 (Ala.1989) (amendment arising out of conduct, transaction, or occurrence relates back); McCollough v. Warfield, 523 So. 2d 374 (Ala. 1988); Alfa Mutual Insurance Co. v. Smith, 540 So. 2d 691 (Ala.1988); McClendon v. City of Boaz, 395 So. 2d 21 (Ala. 1981) (adding new theory or revamping format is immaterial and when amendment is based on same facts previously brought to attention of opposing party, no prejudice is worked). See also Knox v. Cuna Mutual Insurance Society, 282 Ala. 606, 213 So. 2d 667 (1968).
We are unable to find reference in our prior decisions on point to the appellant's argument that there must be a specific reference or incorporation of a prior complaint in order for an amended complaint to relate back. The trial judge made sound use of his discretion, and we see no reason to reverse his decision. We find that the amended complaint relates back to the date of the original complaint and that it is not time-barred. Therefore, we do not reach the issue of pro tanto substitution argued by appellant E & S.
Appellant E & S next argues that the trial court improperly admitted the testimony of Precision's expert witness. E & S contends that the testimony of Precision's expert witness, Sam Rosenthal, was opinion-based *63 hearsay, and, therefore, was inadmissible. There is some question as to whether a proper objection or motion to exclude was made; however, we need not determine that question.
We are of the opinion that the trial court did not commit reversible error in admitting this testimony. Expert witnesses may, at the discretion of the trial judge, be allowed to testify based in part upon hearsay. Brown Mechanical Contractors, Inc. v. Centennial Insurance Co., 431 So. 2d 932 (Ala.1983). Also, Rosenthal's testimony appeared to be based, at least in part, on his own investigations into the type of coverage Precision actually purchased. Rosenthal's opinion was based on his investigations and examinations and, while appellants were free to attack the testimony on other grounds, we believe the trial court was within its discretion in admitting the testimony.
Any conceivable error that could have been committed by the trial court was corrected by the instruction given to the jurors that they were the "exclusive judges of the weight to be accorded to Rosenthal's testimony." The instruction stated:
We find no reversible error in the admission of the expert opinion.
The last argument of appellant Bates that we will address is the argument that the jury's award of damages is excessive. Bates argues that the facts do not support the verdict, that the award is excessive, and that the verdict is the result of confusion, sympathy, bias, passion, or prejudice. E & S argues that the damages are speculative. We disagree with both appellants' arguments.
After this appeal was filed, but before the case was submitted on the merits, this Court remanded the case for the trial court to enter findings and conclusions in conformity with Hammond v. City of Gadsden, 493 So. 2d 1374 (Ala.1986). The trial court entered an order essentially stating that the verdict was supported by the evidence and that the verdict was not the result of bias, passion, or prejudice. Bates maintains that Precision should not have been permitted to recover out-of-pocket expenses and compensatory damages, and that because it did recover both the award is excessive. Bates cites confusion as the reason for the verdict.
Under the facts of the case, however, the jury was justified in making this award. We have stated that there are ample facts in the record to support a finding of fraud by the jury. As we stated in Southern Life & Health Insurance Co. v. Smith, 518 So. 2d 77, 82 (Ala.1987), "[d]amages are excessive if they shock the judicial conscience or are so great as to indicate bias, passion, or prejudice." In Southern Life, as here, the damages were not excessive under any standard. In Southern Life, Justice Houston stated:
518 So. 2d at 82.
For the foregoing reason, the judgments of the trial court are affirmed.
87-1356-AFFIRMED.
87-1366-AFFIRMED.
HORNSBY, C.J., and JONES, SHORES, HOUSTON, STEAGALL and KENNEDY, JJ., concur. | April 12, 1990 |
12cb0132-8ee1-44e7-a8ac-dc1cd944af92 | DaLee v. Crosby Lumber Co., Inc. | 561 So. 2d 1086 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1086 (1990)
Ray DaLEE, d/b/a Dura-Built Homes
v.
CROSBY LUMBER COMPANY, INC.
88-832.
Supreme Court of Alabama.
April 6, 1990.
*1087 Von G. Memory, Montgomery, for appellant.
Allan R. Chason of Chason & Chason, Bay Minette, for appellee.
HOUSTON, Justice.
This is an appeal from a judgment refusing to set aside a default judgment against Ray DaLee, d/b/a Dura-Built Homes (hereinafter referred to as "DaLee"). We affirm.
Crosby Lumber Company, Inc. ("Crosby"), filed a one-count complaint in the Circuit Court of Baldwin County against "RAY DALEE, doing business as DURA BUILT HOMES," seeking damages from DaLee, individually, to compensate for lumber and other wood products purchased by Dura-Built Homes and not paid for. The summons and complaint, delivered by certified mail, read as follows:
DaLee failed to file an answer or to otherwise defend the allegations of the complaint. The trial court, upon application by Crosby, entered a default judgment "in favor of [Crosby] and against Ray DaLee in the sum of $20,932.75 plus costs of court." Three months after entry of judgment, DaLee filed a Rule 60(b), A.R.Civ.P., motion and a motion to transfer, supported by his affidavit:
The trial court denied DaLee's Rule 60(b) motion and determined DaLee's motion to transfer to be moot.[1]
The issue before us is whether the trial court abused its discretion in denying DaLee's motion for relief from judgment under Rule 60(b)(1).[2]
It is well established that the decision to grant or to deny relief pursuant to a Rule 60(b) motion is discretionary with the trial court. Smith v. Clark, 468 So. 2d 138 (Ala.1985); Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala.1979). In reviewing the trial court's ruling on such a motion, we cannot disturb the trial court's decision unless the trial court abused that discretion in denying the motion. See Baker v. Ball, 473 So. 2d 1031 (Ala.1985); Textron, supra.
In Kirtland v. Fort Morgan Authority Sewer Service, Inc., 524 So. 2d 600 (Ala.1988), the Court outlined the general policy considerations to be weighed when determining whether a default judgment should be set aside:
Id. at 604-05 (citations omitted, emphasis added). The Court in Kirtland established a three-factor analysis for the trial court to apply when considering whether to set aside a default judgment:
Id. at 605 (citations omitted); see also Jones v. Hydro-Wave of Alabama, Inc., 524 So. 2d 610 (Ala.1988); Ex parte Illinois Central Gulf R.R., 514 So. 2d 1283 (Ala. 1987).[3]
To meet the meritorious-defense element, DaLee need not satisfy the trial court that he would necessarily prevail at trial on the merits, only that he is prepared to present a plausible defense. See Appalachian Stove, supra; see, also, Ex parte Illinois Central Gulf R.R., supra. When construing the term "meritorious defense," the Court in Kirtland, quoting from Moldwood Corp. v. Stutts, 410 F.2d 351, 352 (5th Cir.1969), stated:
"`It is universally recognized as an essential to the obtaining of relief from a default judgment entered with jurisdiction that there should appear in the motion a clear and specific statement showing, not by conclusion, but by definite recitation of facts, that an injustice has been probably done by the judgment, in that the debt or demand was not owing; that there was a valid defense to it, and that on another trial there will in reasonable probability be a different result. All of the authorities require at least this much.'"
524 So. 2d at 606 (emphasis added); see also Appalachian Stove, supra.
To show the existence of a meritorious defense, DaLee had to allege sufficient facts or produce enough evidence to counter Crosby's claims. DaLee contends that he attached invoices to his affidavit that indicated that the lumber was billed to Dura-Built Homes without reference as to whether Dura-Built Homes was the corporation or DaLee individually. In his motion and in his affidavit, DaLee acknowledged that the corporation owed money to Crosby. However, he contends that he did not realize that, because the complaint was brought against "Ray DaLee, d/b/a Dura-Built Homes," he was personally liable for the corporate debt. Furthermore, he contends that there was no evidence that he is the alter ego of the corporation.
Whether the name on the invoice, "Dura Built Homes," referred to the corporation, for whose debts DaLee was not personally liable, or to DaLee individually created a fact question. DaLee does not have to present an absolute defense; he need only present a plausible defense. This he did. Therefore, we hold that DaLee provided the trial court with a sufficient factual basis on which to conclude that the result *1091 could conceivably be different if it were adjudicated on the merits, see Jones v. Hydro Wave, supra, and that those facts constituted a meritorious defense in accordance with the standard in Kirtland, supra.
However, in order to obtain relief under Rule 60(b), the defaulting party must not only show the existence of a meritorious defense, but also must demonstrate the ground under Rule 60(b) justifying relief from the final judgment. See Kirtland, supra; see, also Jones v. Hydro Wave, supra.
DaLee's Rule 60(b) motion was in fact based on those grounds enumerated in Rule 60(b)(1)mistake, inadvertence, surprise, or excusable neglect. In his motion, DaLee stated that he "did not understand that this lawsuit against Ray DaLee, d/b/a Dura-Built Homes, was a lawsuit against him individually as opposed to the corporation"; that he therefore "neglected to promptly answer the Complaint, since he did not dispute that his corporation owed the lumber company the amount claimed... in the Complaint"; and that his "error was inadvertent."
"`A party who ignores a summons and, without good excuse, neglects to make his defense at the proper time has no standing in any court when he seeks to avoid the resulting judgment or decree. Read v. Walker, 18 Ala. 323, 333.' Boothe v. Shaw, 214 Ala. 552, 108 So. 563, 564."
Quoted as authority in Fancher v. Fancher, 262 Ala. 489, 80 So. 2d 248 (1955).
Furthermore, the summons that was served on DaLee read "NOTICE TO: Mr. Ray DaLee" and it informed him that "[t]he Complaint which is attached to this Summons is important and you must take immediate action to protect your rights." (Emphasis added.)
In McDavid v. United Mercantile Agencies, Inc., 248 Ala. 297, 301, 27 So. 2d 499, 503 (1946), the Court set out the duty of a party when legal process is duly served upon him:
The explanation given by DaLee for his failure to appear in defense of the suit filed against him by Crosby is not adequate. DaLee has not shown that he was prevented from appearing and defending the suit by "mistake, inadvertence, surprise, or excusable neglect" that ordinary prudence could not have guarded against.
Therefore, although DaLee presented a meritorious defense, he failed to make a showing under Rule 60(b)(1) sufficient to authorize this Court to hold that the trial court abused its discretion in refusing to set aside the default judgment.
AFFIRMED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The trial court's determination that DaLee's motion to transfer was moot is not at issue here.
[2] DaLee's Rule 60(b) motion for relief from judgment was filed under the provisions of Rule 60(b)(1), (4), and (6). In his reply brief concerning his arguments that the default judgment was void under Rule 60(b)(4), DaLee concedes that "[u]nder the authority of Pridgen v. Head, 210 So. 2d 426, 430 (Ala.1968), ... the jurisdictional defects incident to service of process have been cured or waived." Furthermore, relief cannot be obtained under Rule 60(b)(6) if it would have been available under Rule 60(b)(1), (2), (3), (4), or (5). See Appalachian Stove & Fabricators, Inc. v. Roberts, 544 So. 2d 893 (Ala. 1989); see, also, Cassioppi v. Damico, 536 So. 2d 938 (Ala.1988). Rule 60(b)(6) is designed to operate exclusively of the specific grounds listed in Rule 60(b)(1)-(5). See Appalachian Stove, supra; Cassioppi v. Damico, supra. From a review of the record, we conclude that DaLee's Rule 60(b) motion was in fact based on those grounds enumerated in Rule 60(b)(1). Therefore, we cannot allow it to be improperly termed a Rule 60(b)(6) motion. Thus, for purposes of this appeal, we are limited to a review of DaLee's motion for relief from judgment under rule 60(b)(1).
[3] The precedent established by Kirtland, Jones v. Hydro-Wave, and Ex parte Illinois Central Gulf R.R., applicable to motions to set aside default judgments pursuant to Rule 55(c), Ala.R.Civ.P., was cited as authority by the Court in Lee v. Martin, 533 So. 2d 185 (Ala.1988), when we reversed the trial court's denial of a Rule 60(b)(6) motion to set aside a default judgment. A trial court's discretionary authority under Rule 60(b) is much broader than it is under Rule 55(c). Cassioppi v. Damico, supra; see also Kirtland, supra. | April 6, 1990 |
6e692f2b-be72-4a0d-8a1b-eab6d164d606 | Sanders v. Roberts | 563 So. 2d 1022 | N/A | Alabama | Alabama Supreme Court | 563 So. 2d 1022 (1990)
Edward D. SANDERS
v.
Gilbert ROBERTS and Judy M. Roberts.
89-388.
Supreme Court of Alabama.
April 27, 1990.
*1023 J.C. Perdue, Phenix City, for appellant.
Ronald W. Self of Kelly, Denney, Pease & Allison, Columbus, Ga., for appellees.
ADAMS, Justice.
Edward Sanders filed an action against Gilbert Roberts and Judy Roberts, alleging that Gilbert Roberts, while driving Judy Roberts's automobile, negligently drove that automobile in the left lane of the road, and thereby caused a collision with Sanders's automobile. The trial court directed a verdict in Judy's favor, and the jury returned a verdict for Gilbert. The trial court denied Sanders's motion for a judgment notwithstanding the verdict and entered judgment on the verdict. We affirm.
The record discloses the following concerning the accident. Sanders was driving his automobile south on the right side of an unpaved road in Russell County. Gilbert, driving an automobile owned by his wife Judy, was traveling north on that road on the same side that Sanders was traveling on. The automobiles collided when they rounded a curve in the road.
At the time of the accident, a county road grading vehicle was scraping the road, leaving a pile of dirt approximately two feet high in the middle of the road. Sanders's side of the road had been scraped, but the side that Gilbert would travel in to be on the right side of the road had not been scraped. According to several witnesses, a driver traveling in the direction that Gilbert was going could not drive on the proper side, because there was not enough room on that side, when one considered the pile of dirt in the middle of the road and that the road grader was blocking that side.
There was contradictory evidence concerning whether Sanders's automobile was actually damaged. The evidence was also contradictory as to whether Sanders had sustained any injury as a result of the accident.
The trial court directed a verdict for Judy at the end of Sanders's case-in-chief. Sanders argues that that ruling was error, because, he says, Gilbert, as the driver of Judy's car, is presumed as a matter of law to be acting as Judy's agent and, he further says, at the time the trial court granted the directed verdict, Judy had not rebutted that presumption. Sanders is correct that Judy's ownership of the car creates *1024 a presumption that Gilbert, as the person in possession and control of the automobile, was the agent or servant of Judy. Perdue v. Mitchell, 373 So. 2d 650, 653 (Ala.1979). At the time when the trial court directed the verdict, Judy had not offered evidence to rebut the presumption. During the presentation of the defense, however, there was much evidence presented to show that Gilbert was not acting on any duty or responsibility to his wife, and that evidence indicated that Gilbert was not Judy's agent. That evidence was unrebutted. Accordingly, the defense did rebut the presumption. Inasmuch as the defense had not rebutted that presumption at the time the trial court directed the verdict for Judy, however, Sanders was, at that time, entitled to the presumption that Gilbert was acting as Judy's agent or servant. Sanders's action against Judy was based on Gilbert's alleged negligence, not on a claim that Judy had negligently entrusted the vehicle to Gilbert. Accordingly, Sanders was entitled to the presumption that Gilbert was Judy's agent or servant, but, even with that presumption, the issue of liability in the trial exclusively concerned Gilbert's alleged negligence, not any alleged negligence on Judy's part. The jury returned a verdict for Gilbert. We have stated that if a servant's conduct is the only basis of liability against a master, then a verdict exonerating the servant normally relieves the master of liability. See, e.g., Louisville & Nashville R.R. v. Garrett, 378 So. 2d 668 (Ala.1979); Alabama Great Southern R.R. v. Evans, 288 Ala. 25, 256 So. 2d 861 (1972). That statement addresses the particular facts of this case, because Sanders's claim against Judy is based exclusively on Gilbert's alleged negligence. Considering that the jury found for Gilbert, we hold that if the trial court erred in directing the verdict for Judy, the error was harmless, provided that the jury verdict was proper.
This Court, reviewing the jury verdict, must review the record in the light most favorable to Gilbert. Pate v. Sunset Funeral Home, 465 So. 2d 347 (Ala.1984). A jury's verdict is presumed correct and will not be disturbed unless plainly erroneous or manifestly unjust. Id. Considering the entire record, we hold that the jury's verdict was neither plainly erroneous nor manifestly unjust.
The trial court did not err in denying Sanders's motion for judgment notwithstanding the verdict. The judgment is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ALMON and STEAGALL, JJ., concur. | April 27, 1990 |
e3e68e78-c311-45c4-bc06-74550ef2a775 | Ex Parte Johnson Land Co., Inc. | 561 So. 2d 506 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 506 (1990)
Ex parte JOHNSON LAND COMPANY, INC.
(Re Zane BABSTON, as executor of the estate of Francis Babston, deceased v. JOHNSON LAND COMPANY, INC.)
89-376.
Supreme Court of Alabama.
March 30, 1990.
Howard C. Alexander, Montgomery, for petitioner.
Charles Tom Payne, Montgomery, for respondent.
HORNSBY, Chief Justice.
Johnson Land Company, Inc., the defendant in the court below, petitions this court for a writ of mandamus commanding the trial judge to vacate his order restoring the above referenced case to the trial docket of the Montgomery County Circuit Court.
The facts as gleaned from the pleadings filed by the parties tend to show that the will of Francis Babston was admitted to probate on June 6, 1985. Her son, Zane Babston, was named executor of the estate on October 17, 1985. Francis Babston left a will with a codicil thereto which left all of her property to her sons, Zane and Richard Babston. Included in the estate is a parcel of real estate described as Lot 18, Block Number 38 according to the Plat of Capitol Heights, recorded at Plat Book 2, pages 34-35, in the offices of the Judge of Probate of Montgomery County, Alabama. Title to that parcel of real estate has been called into question by the petitioner herein, Johnson Land Company, Inc. ("Johnson").
It appears that after Zane Babston was named executor of the Babston estate, his brother, Richard Babston, entered into a loan agreement with Johnson whereby Richard received $3,650. Richard then persuaded Zane to co-sign the loan documents, including an installment note for $3,650 *507 and a "Corporate Mortgage" that placed a lien on the above described parcel of real estate in favor of Johnson. The debt thus incurred was not repaid and Johnson brought foreclosure proceedings and took possession of the property, made improvements, and leased the premises. Two and one half years later, on September 19, 1988, Babston brought suit against Johnson, claiming that the mortgage was void because it was entered into during the six-month period in which claims could be filed against the estate. See Code 1975, § 43-2-350.
Zane Babston, as plaintiff, sought to be relieved of the debt to Johnson and sought a ruling ordering that the Capitol Heights property be dedicated to the payment of estate debts. This action came two and one half years after the estate was probated and the debt was incurred. During this period, it is alleged, the Babstons made no effort to redeem title to the property. Johnson filed a motion to dismiss, alleging that the Babstons had failed to redeem the property within the redemptive period. A hearing on the motion to dismiss was held on November 1, 1988, and the motion was granted on December 27, 1988. Thereafter, on January 17, 1989, Zane Babston filed a motion for rehearing. A hearing was scheduled on Babston's motion for rehearing. According to Johnson, the judge did not enter an order on the motion for rehearing at that time but stated that he would "go over the facts and enter an order at a later date."
Johnson claims that the judge never ruled on the motion, and, therefore, that the motion for rehearing was denied by operation of law at the end of 90 days from January 17, 1989, the date the motion was filed. Thus, Johnson says, the circuit court would be without jurisdiction to further act on this matter after April 17, 1989. See Ala.R.Civ.P. 59.1.
Babston claims that the judge orally granted the motion for rehearing and ordered that the case be placed back on the court docket. Babston includes in his brief to this court the affidavit of Hugh R. Evans III, the law clerk for the trial court. Evans states that at the hearing on March 3, 1989, the trial judge stated in open court that "he had not made up his mind" and that he would notify the parties of his decision. Evans further states that the trial judge told him "a few days after the hearing" that he was granting the motion and that he was restoring the case to the docket. Evans claims that to the best of his recollection or remembrance he "informed both attorneys involved in this case of this decision." Johnson claims, however, that some two weeks before the 90-day period expired it contacted the trial judge to ascertain the status of the motion and that it subsequently heard nothing further from the court until a status conference was set by the trial judge on November 3, 1989. Johnson claims that it had contacted the Circuit Clerk "[a]pproximately 210 days after" the motion for rehearing and was informed by the Clerk that the case was closed and that "in fact it was in the closed file." Based upon this information, Johnson negotiated to sell the Capitol Heights property to the tenant it had been leasing to during the interim.
There is some dispute as to whether all claims against the Babston estate were lawfully filed, and as to whether all claims lawfully filed were paid by the estate. However, because this case turns upon a narrow procedural issue, we do not address the issue of these parties' rights under the statute of non-claims, Code 1975, § 43-2-350.
Johnson now petitions this court for a writ of mandamus that would void the trial court's order of November 20, 1989, reinstating the case to the docket. Johnson claims that because the trial judge did not issue any order granting the motion for rehearing within 90 days, the trial court was without jurisdiction on November 20, 1989, to order the case reinstated to the docket. The Babstons claim that the motion was, in fact, granted by the trial court, and that only a "clerical error" prevented a written order granting the motion from being issued. Johnson claims that, even if *508 we assume that a clerical error occurred in this case, the Babstons were limited to four months in which to correct the error, and that no correction was made within that time. Johnson also states that it suffered prejudice due to a lack of notice, because, it says, it relied on the silence of the trial court in proceeding with a sale of the Capitol Heights property.
Mandamus is a proper remedy to prevent injustice and to prevent an irreparable injury when there is no other remedy at law. Ex Parte Hartwell, 238 Ala. 62, 188 So. 891 (1939). Mandamus is an extraordinary remedy to be employed to see that justice is done, but it shall not issue if there is a doubt as to its necessity or propriety. Ex Parte Garrison, 260 Ala. 379, 71 So. 2d 33 (1954). Mandamus is a drastic and extraordinary remedy and it should be reserved for truly extraordinary situations and circumstances. Belcher v. Grooms, 406 F.2d 14 (5th Cir.1968). To justify issuance of the writ, there must be a clear showing of injury to the petitioner. Ex Parte Cox, 451 So. 2d 235 (Ala.1983); Ex Parte Jones, 447 So. 2d 709 (Ala.1984).
In this case, it is clear that the motion for rehearing was a motion subject to Ala.R.Civ.P. 59.1. The post-trial motion entered by the Babstons is referred to as a request for a rehearing of the trial court's decision to dismiss the Babstons' suit. A motion for "rehearing" is subject to Ala.R. Civ.P. 59.1. Ex Parte Colonial Life & Accident Ins. Co., 410 So. 2d 73 (Ala.1982) (applying Rule 59.1 to a motion for rehearing of a decision of the trial court granting a motion for summary judgment). In the case of French v. Steele, Inc., 445 So. 2d 561, 563 (Ala.1984), this Court stated:
If the trial court allows a post-trial motion to remain pending, and not ruled upon, for 90 days, then the motion is denied by operation of law and the trial court loses its jurisdiction to further entertain that motion. Carnes v. Carnes, 365 So. 2d 981 (Ala.Civ.App.1978), cert. denied, 365 So. 2d 985 (Ala.1979). Most importantly, the operation of Rule 59.1 makes no distinction based upon whether the failure to rule appears to be "inadvertent [or] deliberate... [or] any other type of failure." Howard v. McMillian, 480 So. 2d 1251 (Ala. Civ.App.1985).
We believe that this controversy is controlled by the above cited authorities. We hold, therefore, that the trial judge's oral agreement to consider the facts and let the parties know of his decision on the motion for rehearing at a later date did not act as an "order which (1) grants the motion, or (2) denies the motion." French, supra. We have examined the trial court's case action summary sheet and find that there was no "order" entered by the trial court granting or denying the Babstons' motion. Under the rule, therefore, the motion was denied by operation of law at the end of 90 days. Thus, the trial court was without jurisdiction to enter any further order as of April 18, 1989, because the motion had been pending since its filing with the trial court on January 17, 1989. The 90th day had expired on April 17. It follows that the trial court's order reinstating the Babstons' case to the court docket was a nullity due to the trial court's lack of jurisdiction. This cause is due to dismissed by the trial court and removed from the court docket, and it is so ordered.
WRIT GRANTED.
MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur. | March 30, 1990 |
51a575a6-eea1-40b4-8ea5-425e42e2567d | Continental Cas. Ins. Co. v. McDonald | 567 So. 2d 1208 | N/A | Alabama | Alabama Supreme Court | 567 So. 2d 1208 (1990)
CONTINENTAL CASUALTY INSURANCE COMPANY
v.
Robert McDONALD.
Robert McDONALD
v.
CONTINENTAL CASUALTY INSURANCE COMPANY.
88-1383, 88-1453.
Supreme Court of Alabama.
June 22, 1990.
Rehearing Denied September 14, 1990.
*1210 Wade H. Baxley of Ramsey, Baxley & McDougle, Dothan, and Robert L. Suomala of Peterson, Ross, Schloerb & Seidel, Chicago, Ill., for appellant/cross-appellee.
Stephen D. Heninger and Joseph W. Buffington of Heninger, Burge & Vargo, Birmingham, for appellee.
ALMON, Justice.
Continental Casualty Insurance Company ("CNA") appeals from a judgment on a jury verdict awarding $750,000 to Robert McDonald on his claim alleging the tort of outrage. CNA argues that the evidence failed to establish the tort of outrage; that the trial court erred in instructing the jury; that the action is barred, at least in part, by the statute of limitations; and that the damages awarded are excessive. McDonald cross appeals, arguing that, if the judgment is reversed, the trial court should be held to have erred in granting a motion in limine filed by CNA.
McDonald suffered a back injury in 1976 while working for Akwell Industries. He filed a workmen's compensation action in 1978 against CNA, as the workmen's compensation insurance carrier for Akwell. The disability portion of McDonald's claim was settled for $12,000, and CNA remained liable for his medical expenses arising from the injury. McDonald had a total of five surgeries on his back, concluding in 1981. He remained disabled and in pain, but his doctors concluded that no further surgery would be helpful.
This controversy arose over CNA's handling of McDonald's claims for medical expenses. McDonald contends that CNA, in an attempt to minimize its exposure, tried to coerce him into settling for a small lump-sum settlement of his medical claim. He argues that CNA delayed payments to doctors, hospitals, and pharmacists for unreasonable lengths of time, causing, for example, hospitals to threaten collection actions against him and a pharmacy to refuse to provide further pain medication. CNA also resisted paying for a hot tub or whirlpool bath prescribed by McDonald's doctor, suggesting instead membership in a health spa or other in-home alternatives. McDonald argues that CNA intentionally caused him severe emotional distress by these and other actions in its handling of his medical expenses.
The tort of outrage, or intentional infliction of severe emotional distress, was first recognized by this Court in American *1211 Road Service Co. v. Inmon, 394 So. 2d 361 (Ala.1980):
394 So. 2d at 365.
This Court held in Garvin v. Shewbart, 442 So. 2d 80 (Ala.1983),[1] that claims of outrage are not barred in workmen's compensation contexts by the exclusivity provisions, Ala.Code 1975, §§ 25-5-11, -52, and -53, of the workmen's compensation statutes. Thus, those provisions provide no bar to this action.
This Court has applied the stringent Inmon test rather strictly, to hold in a number of cases that alleged conduct did not present a jury question on the tort of outrage. See, e.g., Goodwin v. Barry Miller Chevrolet, Inc., 543 So. 2d 1171 (Ala.1989); Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala.1988); Lumpkin v. Cofield, 536 So. 2d 62 (Ala. 1988); Gallups v. Cotter, 534 So. 2d 585 (Ala.1988); Williams v. Marcum, 519 So. 2d 473 (Ala.1987); Handley v. Richards, 518 So. 2d 682 (Ala.1987); Crowder v. Memory Hill Gardens, Inc., 516 So. 2d 602 (Ala. 1987); Jackson v. Colonial Baking Co., 507 So. 2d 1310 (Ala.1987); Livingston v. Mobile Memorial Gardens, Inc., 504 So. 2d 256 (Ala.1987); Therrell v. Fonde, 495 So. 2d 1046 (Ala.1986); McIsaac v. WZEW-FM Corp., 495 So. 2d 649 (Ala.1986); Surrency v. Harbison, 489 So. 2d 1097 (Ala. 1986); Logan v. Sears, Roebuck & Co., 466 So. 2d 121 (Ala.1985).
In Inmon itself, the Court held that the plaintiff's evidence did not present a jury question on the cause of action. Among its cautionary statements in that opinion, the Court said: "It should be noted that this tort does not recognize recovery for `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' Comment, Restatement, supra, at 73." 394 So. 2d at 364-65.
On the other hand, this case is postured so that the standards for reviewing the sufficiency of the evidence are in favor of the plaintiff, McDonald. The trial court denied CNA's motions for summary judgment and directed verdict and entered judgment on the verdict, denying CNA's motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial or a remittitur.
Pate v. Sunset Funeral Home, 465 So. 2d 347, 350 (Ala.1984) (citations omitted); Campbell v. Burns, 512 So. 2d 1341 (Ala. 1987); Hallman v. Summerville, 495 So. 2d 626 (Ala.1986); Woods v. Laster, 291 Ala. 139, 279 So. 2d 121 (1973). Because the jury returned a verdict for McDonald, any disputed questions of fact must be resolved in his favor and, if necessary to support the verdict, it must be presumed that the jury *1212 drew any reasonable inferences supporting its verdict that might have been drawn from those facts.
Thus, keeping in mind both the stringency of the test for the tort of outrage and the presumptions in favor of the verdict and judgment, we shall set forth so much of the material, pertinent evidence as is necessary for deciding this case.
CNA's records indicate that it closed McDonald's file in late 1981, but reopened it in 1982 when it received communications from McDonald and his doctors. The file includes a note dated May 19, 1982, stating in part, "I believe if Mr. McDonald is going to have continued problems. Will settle in BSO." Debbie Malinak, a CNA claims specialist who had been handling McDonald's file since October 1981, testified that "BSO" stands for "benefit settlement option," which is a structured settlement of the claim that would extinguish CNA's liability for further medical payments.
Also on May 19, 1982, CNA ordered an "activities check" on McDonald, presumably to determine if he was malingering. Equifax Services generated a report in August 1982 indicating that McDonald's neighbors confirmed that McDonald had back pain, that he walked with a cane, that he did not bend or lift anything, and that he did not work. CNA ordered another Equifax report in 1983, and the summary of that report in CNA's file confirms that "All sources interviewed state claimant in bad shape. Has not worked for 4-5 years and does not have physical activity." All of the information available to CNA from 1982 on confirmed that, as McDonald's doctor stated in a 1985 letter, McDonald was in constant moderate to severe pain with periodic spasms of extreme pain. In fact, his doctor testified at trial that, on a pain scale of 0 to 10, McDonald was usually at 6 or 7, seldom below 4, and sometimes at 9 or 10.
On May 26, 1982, CNA's estimate on McDonald's future medical expenses was $15,000. On June 14, it revised that figure to $72,644. Its claims supervisor wrote on the file, "I can't believe we will spend $72,000 more."
On December 15, 1983, Malinak sent McDonald an offer of $100 per month or $1000 per year for life in settlement of McDonald's medical claim. Malinak had received authority to offer $1500 per year for life. The cost of annuities to set up the plans offered would have been $11,495 for the monthly payment or $9096 for the $1000 annual payment. McDonald telephoned Malinak on December 28 and told her he did not want to settle. Malinak produced annual reports for the file beginning in 1983 stating that the "action plan" was to try to persuade McDonald to settle.
McDonald introduced a great deal of evidence from which the jury could have concluded that CNA engaged in a pattern of delays in order to cause distress to McDonald and pressure him into accepting a settlement. A few examples follow.
In March 1984 CNA received a letter from the Florida Department of Insurance attaching a copy of a "service request" from a Holmes County Hospital regarding CNA's failure to pay it for treating McDonald. The request included the following statement by a hospital employee:
Malinak testified that she was aware that the hospital was threatening McDonald with lawsuits over the unpaid bills. She contended at trial that she had requested information from the hospital because the treatment had not been authorized.
McDonald wrote to Malinak on April 5, 1985, complaining about the long delays in paying his medical bills from his pharmacy, hospital, and doctors. He wrote her again in August 1985, complaining about difficulties in obtaining approval to attend a pain clinic at Duke University. The following is an excerpt:
McDonald introduced exhibits from health care providers. One doctor filed a claim four times, beginning on December 2, 1985, before receiving payment on September 27, 1986. An employee of Doctors' Memorial Hospital wrote in 1986 that she had tried to call Malinak 6 times in 10 days, was told that Malinak would return her call, but never heard from Malinak. The administrator of that hospital wrote to McDonald on April 3, 1987:
Malinak testified that she remembered being made aware of that letter.
Al Johnson, of Johnson's pharmacy, wrote the following letter in November 1986 to McDonald's attorney:
On March 2, 1987, Johnson wrote that CNA was past due $887.49 and that "This is not uncommon with this insurance company." On March 27, 1987, Johnson wrote to McDonald that "[W]e can no longer fill any of your prescriptions due to nonpayment from your insurance company handling your workman's compensation."
McDonald's doctor, Dr. Brooks, whom CNA had selected, wrote a letter to CNA's attorney on August 23, 1986, stating:
Malinak testified that she remembered seeing that letter.
A letter from McDonald to Malinak on May 22, 1985, substantiates his claim that CNA was pressuring him to settle. It refers to her written settlement offer in 1983 and continues:
The final straw for McDonald came when his doctor prescribed a whirlpool bath or hot tub, referred to by the parties as a "Jacuzzi," for pain relief. The prescription is dated November 3, 1986. On November 5, 1986, McDonald's attorney wrote the following letter to Malinak:
Malinak responded on November 13:
Dr. Brooks wrote a letter on November 25 explaining why neither of the alternatives Malinak suggested would be acceptable:
On December 4, McDonald's attorney sent this letter to Malinak, along with copies of letters from McDonald's hospital stating that the account was delinquent, from a law firm telling McDonald that it had begun collection efforts, and from Johnson's pharmacy (quoted above) regarding problems with CNA's payments.
In response, Malinak wrote the following letter to Dr. Brooks on January 20, 1987:
Dr. Brooks responded on January 23, saying essentially the same things he had said in his letter of November 25. Malinak continued to refuse to provide the hot tub as prescribed, and McDonald filed this action on March 27, 1987.
The evidence from the witness stand was consistent with the above-cited documentary evidence. McDonald and his wife testified in detail about the difficulties they had in working with CNA and the stress placed on McDonald. Malinak stated that the delays in payment arose because McDonald was incurring so many bills, especially trips to the emergency room for pain medication, and CNA was concerned that it was receiving multiple billings for the same treatments. Regarding the hot tub dispute, Malinak took the positions that the unavailability of a health spa was due to McDonald's own decision to live in a rural area and that CNA would not want to pay for an expensive hot tub and then have to install another one if McDonald moved.
Before deciding the principal issue of whether the evidence supported the submission of the claim of outrage to the jury, we deem it useful to address two of the other issues first: whether the action is barred, at least in part, by the statute of limitations, and whether the court erred in instructing the jury.
The statutory period of limitations for the tort of outrage is two years. Ala. Code 1975, § 6-2-38; Archie v. Enterprise Hospital & Nursing Home, 508 So. 2d 693 (Ala.1987); Eidson v. Johns-Ridout's Chapels, Inc., 508 So. 2d 697 (Ala.1987). CNA argues that the action is barred because, if there was any cause of action for outrage under these facts, it arose more than two years before the claim was filed, or, alternatively, that McDonald should not have been allowed to recover damages for conduct occurring prior to March 27, 1985, i.e., more than two years before the complaint was filed.
The trial court denied CNA's motion for directed verdict based on the statute of limitations, holding that "the tort of outrage is a continuous tort" and citing Garrett v. Raytheon Co., 368 So. 2d 516 (Ala. 1979). Similarly, McDonald cites Moon v. Harco Drugs, Inc., 435 So. 2d 218, 220 (Ala. 1983), for its statement, "This Court has used the term `continuous tort' to describe a defendant's repeated tortious conduct which has repeatedly and continuously injured a plaintiff," and argues that CNA's actions constituted such a continuous tort for which the period of limitations had not run when he filed this action.
The merit in the trial court's holding and in McDonald's argument can be seen by contrasting this case with Garvin v. Shewbart, 564 So. 2d 428 (Ala.1990) ("Garvin II"). That action was also a claim against CNA for outrageous conduct in its processing of workmen's compensation medical payments for a back injury. In that case, CNA insisted on Garvin's seeing a physician of its choice for a second opinion on whether she needed further surgery. That insistence, together with refusals by the *1216 designated doctors to see her until they had her records and for other reasons, resulted in a delay of the surgery for more than two years, from the time she initially sought a second opinion until after she filed suit against CNA. This Court affirmed the summary judgment for CNA, holding that the alleged conduct did not meet the Inmon test for outrageous conduct and that "CNA was doing `no more than [insisting] upon [its] legal rights in a permissible way,' Inmon, at 368," 564 So. 2d at 431 (brackets in Garvin II). See also Glenn v. Vulcan Materials Co., 534 So. 2d 598 (Ala.1988);[2]Nabors v. St. Paul Ins. Co., 489 So. 2d 573 (Ala.1986).
Thus, there is clearly a threshold beyond which an insurance company's recalcitrance must go before it crosses into outrageous conduct. If we were to hold that McDonald was barred from bringing this action upon the expiration of one[3] or two years after the first time he suffered severe emotional distress over CNA's handling of his claim, we would place plaintiffs in the untenable position of not knowing whether their claim is premature and thus subject to summary judgment for lack of a genuine question of material fact, as in Garvin II, or has been in existence long enough for the period of limitations to run, as CNA argues here. The better policy would be to encourage cooperation and attempts to work out differences, like McDonald's attempts in this case, and to preserve the cause of action should those attempts prove futile.
The Court in Garrett v. Raytheon, supra, held that the cause of action for radiation exposure began to run from the last exposure. Similarly, an action such as this, arising from continuing dealings between the parties, will not be barred until two years after the last tortious act by the defendant, particularly where the defendant's conduct does not cross the threshold and become an actionable tort until it is demonstrably extreme and outrageous.
CNA argues in the alternative that any damages McDonald may have suffered from its conduct prior to March 27, 1985, should have been excluded from the jury's consideration. Garrett v. Raytheon observed that recovery for a continuous tort is limited to those damages that occurred within the period of limitations, citing American Mutual Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So. 677 (1938), and Howell v. City of Dothan, 234 Ala. 158, 174 So. 624 (1937).
CNA did not request any jury instruction for such a limitation on the damages, however. The only colorable attempt to raise this issue before the jury retired was in CNA's motion for summary judgment or, alternatively, partial summary judgment on the ground that recovery was barred for any damages accruing more than two years before the complaint was filed. Because of the continuing nature of the tort and the injury, because there were no severable claims for earlier injuries, and because the allegations were of an ongoing pattern of conduct, there was no aspect of the claim as to which summary judgment could have been entered. At most, a motion in limine precluding evidence of earlier conduct causing distress might have been appropriate.[4] We decline to decide that question, however, because we question whether the limitation-of-damages rule would even apply to an outrage case such as this, where the questions are so problematic as to when the conduct rises to the level of outrage and when the emotional distress rises to the necessary level of severity. In a case where the question is properly presented by an attempt to limit the evidence or the damages, it might well be that earlier conduct, not necessarily actionable as outrage initially, could be *1217 brought within a later-filed action as part of an ongoing pattern or scheme, at least where the earlier injuries or damages are not discrete or severable from the later ones, as is the case here.
In sum, this action was not barred by the statute of limitations, because CNA's conduct, if it was tortious at all, was in the nature of a continuing tort, and that conduct was continuing even up to the time the action was filed. The question of whether the recovery should have been limited to damages within the period of limitations is not presented on the record and will not be decided.
CNA next argues that the court erred in instructing the jury, the gist of its argument being that the court instructed the jury on aspects of workmen's compensation law that were not presented in this action, failed to instruct the jury on the effect its verdict would have on CNA's liability for medical payments, and gave at McDonald's request certain instructions on the tort of outrage that were incomplete or misleading.
Over CNA's objection, the trial court gave the following instructions requested by McDonald:
These charges were proper because the respective rights and duties of the parties as workmen's compensation insurer and insurance beneficiary were crucial to the question of whether CNA had "done no more than to insist upon [its] legal rights in a permissible way." Inmon, 394 So. 2d at 368, quoting Comment g to § 46 of the Restatement (Second) of Torts (1965). Just as CNA insisted in the Garvin II case on its right to have a second physician selected pursuant to the procedure under Ala.Code 1975, § 25-5-77(a), it argued in this case that it merely exercised its right under that section to question whether the costs submitted were "reasonably necessary." For example, CNA argued that it had questioned whether the hot tub or Jacuzzi was a reasonably necessary medical expense. The instructions quoted above properly bore on the question of whether CNA had insisted on its legal rights in a permissible way.
Nor is there any merit to CNA's argument that the quoted instructions may have caused the jury to be confused as to whether the case presented any questions of workmen's compensation law. The court gave the following instruction at CNA's request:
The trial court did not err in giving McDonald's charges numbered one and five.
CNA also argues that the court erred in refusing to instruct the jury in *1218 accordance with its requested charge number eight:
Instead, the trial court gave a jury charge requested by McDonald that was similar to the first sentence of the above charge but omitted the second sentence.
CNA did not give any specific objection to the refusal to give charge number eight. When the court listed which of CNA's requested instructions it was giving and which it was refusing, CNA's attorney simply said, "We except to the court's refusing eight and ten."
CNA argues that the error in refusing its charge eight was compounded or at least confirmed by an event that occurred during the jury's deliberations. The jury submitted to the court the following question: "Does our decision affect the medical bills that Mr. McDonald may incur in the future or does CNA still pay for them?" The record shows the court's answer and responses by the attorneys:
The failure to record the discussion at the bench prevents there being any basis for reversing the court in this matter. CNA's attorney stated for the record that CNA was satisfied with the answer given to the jury's question. We fail to see how CNA may have been prejudiced by the failure to give charge number eight when the court instructed the jury that CNA "has a responsibility" under the law for McDonald's reasonably necessary lifetime medical expenses arising from his workplace injury. No reversible error is presented regarding the trial court's refusal to give requested charge number eight.
CNA also argues that the court erred in giving two of McDonald's charges on the tort of outrage:
CNA argues that charge number three was incomplete because it omitted the requirements for outrage that the emotional distress must be "extremely severe," that the distress must be caused by the defendant's conduct, and that the defendant's conduct must be extreme and outrageous. CNA similarly argues that charge number seven omitted elements of the tort of outrage. There was no such error in light of the entire charge, because the court carefully instructed the jury on several occasions as to the elements of the tort of outrage.
CNA argues that charge number seven was misleading because it "sets forth a number of factors which the jury might have been misled into believing were determinative of whether conduct is `outrageous.'" Those "factors," to which we have added the numbers one through four in brackets, closely track the language of Rice v. United Ins. Co. of America, 465 So. 2d 1100, 1102 (Ala.1984), in which the Court listed four aspects distinguishing Rice's claim from that at issue in Inmon. We agree with CNA that those factors are not determinative; however, the trial court did not present them as such, but only as things "you [the jury] may consider." In light of the trial court's repeated instructions that the elements of the tort must be met and in light of this Court's recitation of the same four factors in Rice, we cannot hold the trial court in error for giving instruction number seven.
The preceding recitations of portions of the evidence and discussions of the issues regarding the statute of limitations and the jury instructions present a relatively complete picture of McDonald's position as to how CNA committed the tort of outrage. We now turn to CNA's argument that the evidence did not support the claim of outrage and that, thus, the trial court should have granted its motion for directed verdict or judgment notwithstanding the verdict.
The evidence recited above is sufficient to show that the jury could have found that McDonald suffered severe emotional distress because of the manner in which CNA handled his claims for medical payments. The more difficult question is whether there was evidence from which a jury could permissibly find that CNA's conduct was "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as utterly intolerable in a civilized society." Inmon, 394 So. 2d at 365.
In response to CNA's arguments that its handling of the claim did not amount to outrageous conduct, McDonald cites Inmon's references to some of the comments to § 46 of the Restatement (Second) of Torts (1965), and points to other Restatement comments that he argues are relevant to this action. Inmon quoted the last sentence of comment e, which states that the actor is not held liable for mere insults, indignities, or annoyances, but McDonald also quotes the first sentence: "The extreme and outrageous character of the conduct may arise from an abuse by the actor of a position, or a relation with the other, which gives him actual or apparent authority over the other, or power to affect his interests." McDonald also quotes the first sentence of comment f: "The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity."[5] McDonald *1220 argues that the two comments quoted above apply to this case because, he argues, CNA abused its "power to affect his interests" and because, he further argues, CNA knew, and took advantage of the fact that, he was peculiarly susceptible to emotional distress because of his constant pain, his need for treatment for that pain, and his dependence on CNA to obtain that treatment.
We do not adopt the Restatement's comments to their full extent as the law of this state; indeed, the very comments quoted by McDonald have cautionary and limiting language emphasizing that the conduct must be extreme and outrageous and that the emotional distress suffered must be severe. Nevertheless, the points made about the power of CNA to affect McDonald's interest and his dependent condition are pertinent to this case.
This case is remarkably like Garvin II, but is also unlike it for the reasons stated above, i.e., that CNA in that case did no more than to insist on its legal rights in a permissible way. In this case, CNA put forth justifications for its delays in payments, but the jury was entitled to disbelieve CNA's evidence because of the pervasive nature of the delays, the lack of any reasonable explanation for most of them, and the evidence that CNA was attempting to "persuade" McDonald to accept a settlement that would greatly reduce the amount that CNA would have to pay for McDonald's medical expenses. CNA had a legal right to question the reasonable necessity of the expenses, but it did so in only a very few cases, such as the Jacuzzi. Even in that instance, the jury could have concluded that CNA did not insist on its legal rights in a permissible way, because, for example, it could have found that Malinak deliberately ignored Dr. Brooks's explanations in December 1986 as to why a bathtub insert or a health spa was not an acceptable alternative but, instead, wrote to him in January 1987 asking the same question again, inferrably for the sole purpose of delaying or hindering payment of the claim. In short, CNA had no legal right to delay payments for no good reason, and the jury could have found that, on occasions when CNA did assert its legal rights, it did not do so in a permissible way.
This case is also distinguishable from Garvin II in other respects. McDonald's need for treatment for his pain was an immediate, day-to-day need, whereas Garvin's possible need for a third surgery was not. There was pervasive evidence here that McDonald's pain was unusually severe and rendered him especially subject to emotional distress over the continuing availability of treatment, and that CNA engaged in repeated conduct that brought the availability of treatment into doubt. Garvin's attempts to show that she was suffering distress from the delays in seeing a physician for a second surgery opinion did not so clearly cross the line of "severe distress" and "outrageous conduct" that the trial court could be held in error for holding that she had not satisfied the test for the tort of outrage. CNA's dilatory handling of McDonald's claims encompassed a whole spectrum of different claims over a period of five years or more, whereas its (most recent) dispute with Garvin did not ripen into unusual delays or hindrances until some time during the two-year period during which Garvin was seeking a second opinion.[6] Most significantly, perhaps, McDonald has produced evidence from CNA's own records and communications that its goal in dealing with him was to persuade him, or, as the jury may have found, to coerce him, to settle for a lump-sum benefit, whereas Garvin produced no such direct evidence of an arguably improper motive in its dealings with her.
In short, the trial court held that Garvin had not presented sufficient evidence in *1221 opposition to CNA's motion for summary judgment to meet the test for the tort of outrage. As the Court stated in Inmon, "the trial court determine[s] in the first instance whether recovery is indicated." 394 So. 2d at 365. One of Garvin's difficulties in maintaining an action was that she had recently settled a prior outrage claim against CNA for its earlier conduct in handling her claim, so only a narrow portion of its entire course of conduct was pertinent to her second action. This Court affirmed the trial court's holding that the conduct at issue did not meet the stringent Inmon test.
This case is different. The trial court held that the evidence was sufficient to present a jury question, and we see no error in that holding. The jury was entitled to believe that CNA engaged in a deliberate effort to cause McDonald to suffer severe emotional distress in order to coerce him into accepting an unreasonably low lump-sum settlement that would drastically reduce CNA's liability for his medical expenses. The evidence supports a finding that CNA systematically withheld payments in order to cause McDonald anguish over the possibility of the cessation of medical treatments for his pain and thereby to cause him to accept a method of payment that would not subject him to CNA's "aggravation," as he called it. A jury could reasonably find from the evidence that such conduct was "beyond all possible bounds of decency, ... atrocious[,] and utterly intolerable in a civilized society." Inmon, at 365. Therefore, the denial of CNA's motion for directed verdict and its post-trial motions was not error.
In denying CNA's motion for a remittitur, the court entered the following order:
We see no error in the above, and we likewise reject CNA's arguments that it is due to be granted a remittitur.
Because of our affirmance on the appeal, the cross appeal is moot and is therefore due to be dismissed.
88-1383AFFIRMED.
88-1453DISMISSED AS MOOT.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and KENNEDY, JJ., concur.
[1] Overruled on other grounds, Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So. 2d 90 (Ala. 1989).
[2] Overruled on other grounds, Lowman v. Piedmont Exec. Shirt Mfg. Co., 547 So. 2d 90 (Ala. 1989).
[3] The one-year statute of limitations was repealed effective January 9, 1985. See former § 6-2-39.
[4] Indeed, CNA filed such a motion in limine regarding an internal memo it had produced during the pendency of McDonald's workmen's compensation claim. The trial court granted that motion, citing the principle of res judicata. That order is the subject of the cross appeal.
[5] Shortly after Inmon was decided, this comment was cited by Judge Hobbs in entering judgment on a jury verdict for a plaintiff in an outrage case. Holmes v. Oxford Chemicals, Inc., 510 F. Supp. 915 (M.D.Ala.1981), affirmed, 672 F.2d 854 (11th Cir.1982).
[6] In March 1985, Garvin had settled a prior action against CNA that had included a claim of outrage. On August 26, 1986, she filed the action that was the subject of her second appeal. Thus, her claim of outrage against which we recently affirmed summary judgment related only to that 17-month period, which spanned most of the time that she was trying to get a second opinion on surgery.
[7] Of course, CNA only offered McDonald $1,000 per year. In writing his order, the judge probably recalled that CNA had authorized an offer of $1,500 per year but did not recall that the actual offer had never been raised that high. The use of the word "month" is obviously only an error of inadvertance. | June 22, 1990 |
0f130987-a9fe-4be6-a8a3-d67e9aa9c9cd | Trum v. Melvin Pierce Marine Coating, Inc. | 562 So. 2d 235 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 235 (1990)
Dick TRUM
v.
MELVIN PIERCE MARINE COATING, INC., et al.
89-215.
Supreme Court of Alabama.
April 6, 1990.
*236 Sidney H. Schell of Reams, Vollmer, Philips, Killion, Brooks & Schell, Mobile, for appellant.
Jon A. Green and E.J. Saad of Crosby, Saad & Beebe, Mobile, for appellees.
HOUSTON, Justice.
The plaintiff, Dick Trum, appeals from a summary judgment in favor of defendants Melvin Pierce Marine Coating, Inc.; Melvin Pierce Painting, Inc.; and Melvin Pierce, individually, in this action seeking damages for breach of contract and fraud. We affirm in part, reverse in part, and remand.
Initially, we note that a summary judgment was proper in this case only if there was no genuine issue of material fact and the defendants were entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P. In determining whether there was a genuine issue of material fact, this Court must review the evidence in a light most favorable to the plaintiff and must resolve all reasonable doubts against the defendants. Fountain v. Phillips, 404 So. 2d 614 (Ala. 1981). This action was filed in May 1989; therefore, the "substantial evidence rule" is applicable. Alabama Code 1975, § 12-21-12.
With regard to his contract claim, the plaintiff alleged that he had entered into an oral contract with the defendants whereby he was to be employed for a period of four years and that the defendants had breached that contract by terminating his employment prior to the expiration of that four-year period. The trial court entered the summary judgment on the ground that the oral contract sued upon was in violation of Ala.Code 1975, § 8-9-2 (the Statute of Frauds) and, therefore, was void. We agree.
Section 8-9-2 provides that "[e]very agreement which, by its terms, is not to be performed within one year from the making thereof" is void unless it is evidenced by a writing. This Court has held that in order for an oral contract to fall outside the purview of this section, it must be an executed contract, see Scott v. Southern Coach & Body Co., 280 Ala. 670, 197 So. 2d 775 (1967), or an executory contract subject to a reasonable possibility of performance within one year. See Kitsos v. Mobile Gas Service Corp., 404 So. 2d 40 (Ala.1981), and Dean v. Myers, 466 So. 2d 952 (Ala.1985), holding limited by Durham v. Harbin, 530 So. 2d 208 (Ala.1988). In the present case, the plaintiff alleged, and the undisputed evidence showed, that there was no writing evidencing the terms of his employment. The plaintiff stated in his affidavit submitted in opposition to the motion for summary judgment that he had entered into an agreement with the defendants whereby he was to be employed for a period of four years. By his own admission, the plaintiff brought suit on an oral, executory contract that was incapable of performance under its terms within one year. Contrary to the plaintiff's contention, this case is distinguishable from the "employment for life" situation in Kitsos v. Mobile Gas Service Corp., supra, because the contract in that case was capable of being performed under its terms if the employee had died within one year. See Dean v. Myers, supra, 466 So. 2d 952 at n. 1. Had the plaintiff in the present case died in his first year of employment, the contract would have terminated prematurely; it would not have been performed. See Cates v. Cates, 268 Ala. 6, *237 10, 104 So. 2d 756, 759 (1958) ("[c]ontracts resting on the skill, taste, or science of a party, i.e., those contracts wherein personal performance by the promisor is of the essence and the duty imposed can not be done as well by others as by the promisor himself, are personal and do not survive his death"). See, also, Pope v. Dickerson, 205 Ala. 594, 89 So. 24 (1921). The summary judgment on the contract claim was proper.
The plaintiff alleged the following regarding his fraud claim:
The defendants contend that summary judgment was proper on the fraud claim because, they say, the claim was based upon a failure to fulfill a promise and there was no evidence tending to show that at the time the alleged promise was made they intended not to perform. We disagree.
It is true that in order for a promise to constitute a fraudulent misrepresentation, there must have been at the time the promise was made an intention not to perform, and such a promise must have been made with the intent to deceive. Clanton v. Bains Oil Co., 417 So. 2d 149 (Ala.1982). However, evidence of the requisite mental state was presented in this case. The plaintiff's affidavit, in pertinent part, reads as follows:
As the plaintiff's affidavit shows, there was evidence before the trial court tending to show that the plaintiff had extensive experience and contacts in the marine coating business; that Melvin Pierce had asked the plaintiff for help in starting such a business; that Pierce had promised the plaintiff employment for four years and had continuously assured him that he would have a written contract, but never provided one; and that after Pierce had benefited from the plaintiff's experience and contacts, he terminated the plaintiff's employment. A jury could reasonably infer from this evidence that although Pierce promised the plaintiff employment for four years, he never intended to keep that promise. Accordingly, the summary judgment on the fraud claim was improper.
For the foregoing reasons, the summary judgment entered on the contract claim is affirmed, but the summary judgment entered on the fraud claim is reversed, and the cause is remanded for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
HORNSBY, C.J., and JONES, SHORES and KENNEDY, JJ., concur.
[1] The defendants argue that the plaintiff failed to allege fraud with the particularity required by Rule 9(b), Ala.R.Civ.P., and, therefore, that the complaint could not support a claim for fraud. The record does not show that the defendants raised this issue in the trial court. Furthermore, we note that the plaintiff's allegations of fraud were sufficient under Rule 9(b), to state a claim for fraud. See Miller v. Mobile County Bd. of Health, 409 So. 2d 420 (Ala.1981). | April 6, 1990 |
a5b80199-5366-4265-805d-59396184cb48 | Dees v. Pennington | 561 So. 2d 1065 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1065 (1990)
Howard DEES and Sara Dees
v.
Margaret PENNINGTON, et al.
88-487.
Supreme Court of Alabama.
March 30, 1990.
*1066 Claiborne P. Seier and Hayes D. Brown of Seier, Johnston & Trippe, Birmingham, for appellants.
Jonathan A. Brown of Young & Brown, Vernon, for appellees.
PER CURIAM.
This is a boundary line dispute between coterminous landowners. Following a disagreement between Howard Dees and Margaret Pennington concerning the boundary line between their properties, Dees filed this action[1] to have the court determine the boundary line. Alternatively, Dees alleged that he had gained title to the disputed strip of property by adverse possession. The court fixed the property line as advocated by Pennington. Dees appeals.
The property is located in Lamar County, Alabama. Both parties trace their chain of title to W.C. Dees, the plaintiff's grandfather. W.C. Dees conveyed the western parcel to his son, L.H. Dees, in 1926. L.H. Dees conveyed that parcel to the plaintiff, Howard Dees, in 1972. The property description in both of those conveyances reads:
Mr. and Mrs. Pennington obtained title through a series of conveyances that began when W.C. Dees first conveyed the land in 1936 and that was completed in 1983. The property description in those conveyances reads, in relevant part:
Since 1920 there have been three roads in the disputed area, separated in some places by less than thirty feet. According to testimony elicited at trial, each of those roads has been known, among other names, as the Old Fernbank Road or the Fernbank Road. This dispute concerns which of those roads the original grantor intended to be the boundary line. Dees contends that the newest, and most easterly of the three roads is the proper boundary line. That road has also been known as the Fernbank Public Road and is presently known as Moore's Mill Road. Dees testified that his father, L.H. Dees, had pointed this road out as the eastern boundary line of their property on many occasions. Dees also testified that he has paid property taxes on the land west of the present road. Pennington contends that the oldest and most westerly of the three roads is the correct boundary.
The oldest of the three roads was an unpaved road that was abandoned at some time between 1915 and 1926. Morris Cole, a lifelong resident of Lamar County born in 1901, testified that that road was known as the Fernbank and Vernon Road, and that he last travelled over it around 1915. That road was replaced by a paved road some years later. The second road was subsequently straightened and moved a short distance east from its original roadbed, resulting in the road presently in use. Mr.
*1067 Cole acknowledged that both of those roads had also been known as the Old Fernbank Road.
Ms. Lois Finch, who was 78 years old at the time of trial, stated that she grew up on the land now owned by Pennington and that she had lived in Lamar County until 1941. Ms. Finch identified a photograph she had taken in 1926 as being of the oldest, most westerly roadbed. She testified that that road had been known to her as the Old Fernbank Road. Ms. Finch also stated that that road had been replaced and was no longer used at the time the photograph was taken. It is important to note that the photograph identified by Ms. Finch was taken the same year that W.C. Dees, the original grantor, conveyed the western parcel of land to L.H. Dees, the plaintiff's father and predecessor in title. This would indicate that there were two roads in the vicinity at the time of this conveyance. Neither Mr. Cole nor Ms. Finch indicated that they knew which of the three roads was the boundary line between the property owned by Dees and that owned by Pennington.
The trial judge heard the testimony of these and several other witnesses, personally viewed the area in dispute, and reviewed the exhibits, including several deeds. The judge found that the testimony of Ms. Finch was crucial and that it established that the oldest, most westerly road was the Old Fernbank Road. He also found that Mr. Cole's testimony indicated that there were two roads in the vicinity in 1926, thus explaining the reference to the Old Fernbank Road in the 1926 deed from W.C. Dees to L.H. Dees. He therefore decided that the most westerly road was the correct boundary line between the property owned by Dees and that owned by Pennington. He ordered a survey to determine the center line of that road and ordered the positioning of judicial markers along that line.
In reviewing cases such as these, where evidence is presented ore tenus and the trial judge views the property in dispute, this Court will not reverse unless the judgment of the trial court is palpably erroneous or manifestly unjust. Jemison v. Belcher, 368 So. 2d 849 (Ala.1979); Smith v. Nelson, 355 So. 2d 359 (Ala.1978).
It is clear that there is credible evidence supporting the trial judge's determination that the oldest, most westerly road has been known as the Old Fernbank Road. However, it is not clear from the evidence presented that the original grantor intended that road to be the eastern boundary line of the property now owned by Dees. What is clear, from the unambiguous language of the property descriptions in each deed concerning the property now owned by Pennington, is that the oldest road was never intended to be the western border of that parcel of land. Each deed, beginning in 1936, names the Fernbank Public Road as the western border of that parcel. There is no indication that the oldest, most westerly road has ever been referred to as the Fernbank Public Road, despite its various other names. It is clear, therefore, that the original grantor intended that the road being travelled in 1936 be the western boundary of that parcel, and, by inference, the eastern boundary of the property now owned by Dees. By naming the oldest road as the boundary line, the trial court, in effect, gave Pennington a strip of land approximately 30 feet wide and of some considerable length. This strip of land was never conveyed to the Penningtons or to their predecessors in title, nor have they claimed title to it by adverse possession.
The trial court's determination is in conflict with a logical interpretation of the relevant deeds. It is difficult to believe that the original grantor would convey the western parcel of land to his son in 1926 without providing access to what was apparently the only travelled road in the vicinity, and then in 1936 convey the eastern parcel of land, with frontage along the travelled road, to someone not a member of his family. Nor does it seem likely that the original grantor intended for the grantee of the eastern parcel of land to have access to the road, while retaining a 30-foot-wide strip of land, thereby denying access to the road to his own son. Normally the grantor is presumed to intend to convey the fee *1068 owned by him to an abutting right-of-way along with, and as part of, the conveyance of land the right-of-way abuts. This presumption is based on the theory that the grantor would not retain a narrow strip of land that could be of little use or value to anyone other than the adjoining landowner. Standard Oil Co. v. Milner, 275 Ala. 104, 152 So. 2d 431, 436 (1962).
The presumption stated in Standard Oil, supra, concerned whether the grantor conveyed the fee to the center line of the right-of-way or only to its edge, and it arose in the context of disputed ownership of the land covered by the right-of-way after its abandonment. The same principles should apply in this less common situation where the question is whether the grantor intended to convey only to the nearer and abandoned of two roads known by the same name, thereby retaining a narrow strip of land and blocking the grantee's access to the only road in the vicinity then in use, or intended to convey to the further of the two roads, thereby providing access to that road.
Although there is credible evidence that the oldest road has been known as the Old Fernbank Road, there is also evidence that the other two roads in the vicinity have been known by the same name. In the absence of evidence to the contrary, where a street is named in a deed as a boundary line, it must be taken that the parties intended the boundary to be the street as actually opened up and in use. Southern Iron Works v. Central of Georgia Ry., 131 Ala. 649, 31 So. 723, 725 (1901). Despite the fact that there was conflicting evidence concerning which road actually was the Old Fernbank Road, none of that evidence addressed the original grantor's intent. Applying the presumptions cited above, it follows that W.C. Dees intended the Fernbank Public Road, as travelled in 1936, to be the boundary line between the two parcels of land. This is the most logical construction of the two original deeds, as it would have provided both grantees with frontage along the road as it existed at the time of the conveyances. It remains for the trial court, on remand, to determine the course of the Fernbank Public Road at the time of the conveyance in 1936, and to order a survey to mark that course.
Dees's allegation that he gained title to the disputed strip of land by adverse possession was not addressed by the trial court. However, there was testimony at trial that both parties repeatedly cut timber in the disputed strip over the years. Dees has therefore failed to prove that he has been in exclusive possession of the disputed area for ten years, a vital element of adverse possession. Sylvest v. Stowers, 276 Ala. 695, 166 So. 2d 423 (1964).
Because the determination of the trial court is in conflict with the unambiguous property descriptions in the deeds concerning the eastern parcel, and because of the other reasons stated above, the judgment is reversed and this cause is remanded for a determination of the course of the Fernbank Public Road as travelled in 1936. Following this determination a survey shall be ordered to allow the placement of judicial markers along the boundary line.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
[1] Dees's wife, Sara, joined the action as a plaintiff, and the complaint named Pennington's husband, Fred, as a defendant, but, for simplicity, we shall refer to each party in the singular. | March 30, 1990 |
4dede2bc-f2fc-4988-9a3f-659e0f02534e | Gilbert v. Armstrong Oil Co., Inc. | 561 So. 2d 1078 | N/A | Alabama | Alabama Supreme Court | 561 So. 2d 1078 (1990)
George W. GILBERT and Lillie Mae Gilbert
v.
ARMSTRONG OIL COMPANY, INC.
88-1148.
Supreme Court of Alabama.
April 6, 1990.
*1079 Eugene C. Copeland of Burns, Ellis, Copeland & Lisenby, Tuscaloosa, for appellants.
Glenn N. Baxter of Baxter & Wilson, Tuscaloosa, for appellee.
SHORES, Justice.
This appeal arises out of a two-count complaint on an account stated and on an open account seeking $19,475.04 for gasoline and petroleum products delivered to, and then sold by, George Gilbert. The complaint was amended to include a claim based on the alleged fraudulent conveyance of property from George Gilbert to his wife, Lillie Mae. After an ore tenus nonjury trial, the court entered a judgment in favor of the plaintiff, Armstrong Oil Company, Inc., in the amount of $19,475.04, plus interest and costs. The court also found that the property had been conveyed to avoid payment of the debt, and declared the conveyances void. The Gilberts appealed, after their motion for a new trial was denied by operation of law. Rule 59.1, A.R.Civ.P. We affirm.
*1080 Armstrong Oil Company ("Armstrong") is in the business of supplying wholesale gasoline and petroleum products to its customers, who sell them at retail. George and Lillie Mae Gilbert owned and operated the Gilbert Grocery in Vance, Alabama. In September 1978, Armstrong and Mr. Gilbert entered into an agreement, and Armstrong began supplying its products to the Gilbert Grocery. The parties agree that the gasoline remained the property of Armstrong until it was pumped from the underground tanks at the Gilbert Grocery into a customer's vehicle. Armstrong supplied Mr. Gilbert with blank "pump report" forms, which Mr. Gilbert completed each week after reading meters on the pumps to determine the amount of gasoline sold the previous week. An Armstrong employee went to the Gilbert Grocery each week to check the completed pump report form and to pick up the money owed by Mr. Gilbert for the products he had sold.
Two copies of the weekly report forms were madean original and a carbon copy. Mr. Gilbert kept the carbon copy and the Armstrong employee took the original to the Armstrong office. According to Terrell Davidson, the Armstrong representative who made the majority of the weekly visits to the Gilbert Grocery, if Mr. Gilbert paid the full amount owed, an invoice was prepared and marked "Paid." If the Armstrong bookkeeper who checked the reports determined that a mistake had been made on the pump report or that Mr. Gilbert had not paid the exact amount owed, the amount of the shortage or overpayment by Mr. Gilbert was noted on the invoice and on Mr. Gilbert's ledger card. Past due payments Mr. Gilbert made were also noted by Davidson on the report forms. Mr. Davidson testified that the ledger card, which detailed the customer's debits and credits, was mailed to the customer each month.
Armstrong delivered its products to Mr. Gilbert from 1978 until August 1983. At trial, Mr. Davidson testified that Mr. Gilbert's account had a substantial arrearage, so he met with Mr. Gilbert on January 26, 1983, in an attempt to resolve the problem. Mr. Davidson stated that he and Mr. Gilbert compiled copies of the weekly reports and determined that the account was $16,498.02 in arrears. He further testified that they agreed that this amount was due but that efforts to collect it would be temporarily suspended until Mr. Gilbert obtained the money to make the payment. Mr. Davidson said that Mr. Gilbert indicated to Mr. Davidson that he intended to pay the arrearage with insurance proceeds he anticipated receiving, or with a loan from a local bank. The day after the meeting with Mr. Gilbert, an invoice showing the $16,498.02 balance was prepared by Armstrong and a copy was mailed to Mr. Gilbert, according to Mr. Davidson. Armstrong submitted a copy of this invoice into evidence. Mr. Davidson said that this amount was posted on Mr. Gilbert's ledger card, which Armstrong continued to mail to him each month.
For some time after this meeting took place, Mr. Gilbert paid Armstrong for its products in a timely manner, but the May 1983 pump reports, and subsequent ones, show that Mr. Gilbert again failed to make regular payments of the full balance owed to Armstrong. Armstrong stopped delivering its products to Mr. Gilbert in August 1983. Mr. Davidson and his son, Steve, continued their collection efforts on behalf of Armstrong. They testified that Mr. Gilbert acknowledged on numerous occasions that his account was in arrears and that he intended to pay Armstrong out of funds he expected to receive from an insurance refund, from gambling proceeds, or from a bank loan. Armstrong submitted the matter to a collection agency in 1985. A copy of Mr. Gilbert's ledger, with the last entry dated November 16, 1983, and showing a balance of $19,475.04, was admitted into evidence.
At trial, Mr. Gilbert agreed that he began doing business with Armstrong in 1978, and that he met with Mr. Davidson or his son weekly to determine the amount of gasoline sold and the payment owed to Armstrong. He also testified that if he did not pay the entire balance owed at the time it was due, then the remainder was carried over and noted on his account. Mr. Gilbert stated that if Armstrong's bookkeeper corrected *1081 a pump report after she received it at the office, Armstrong mailed a copy of the corrected form to him. He denied having a conversation with Mr. Davidson in January 1983 about a substantial arrearage in his account with Armstrong. Mr. Gilbert stated that he owed Armstrong nothing in January 1983, and, further, that when he stopped doing business with Armstrong in the fall of 1983, his account was not in arrears. He testified that he did not receive any notices from Armstrong indicating that his account was in arrears until he received a letter from a collection agency in 1985. Finally, Mr. Gilbert denied that he owed the amount that Armstrong claimed.
On July 25, 1983, Mr. Gilbert deeded all his real property to Mrs. Gilbert. Mr. Gilbert testified that his wife paid him $10 for each parcel of property, but he acknowledged that each parcel was worth more than that. The deeds were recorded on May 7, 1985. Mr. Gilbert testified that the only reason he sold the property was so that he would not receive rental income from the property directly, because this would have prevented him from being eligible for insurance coverage through his former employer, the United Mine Workers. Mr. Gilbert admitted that he and his wife continue to jointly spend the income from the rental properties.
On March 12, 1986, Armstrong filed a two-count complaint against Mr. Gilbert, claiming $19,475.04, plus interest and costs, on either an account stated or on an open account. The proceedings were stayed upon Mr. Gilbert's filing of a chapter 7 bankruptcy petition, but the petition was voluntarily dismissed in December 1987. In October 1988, Armstrong amended its complaint by adding Mrs. Gilbert as a defendant and alleging in a third count that Mr. Gilbert had conveyed all his real property to Mrs. Gilbert on July 25, 1983, for the purpose of defrauding Armstrong and Mr. Gilbert's other creditors. Armstrong requested that the conveyances be declared void and that any judgment entered against Mr. Gilbert in the case be declared a lien on the property.
After an ore tenus hearing, the trial court entered a judgment against Mr. Gilbert and in favor of Armstrong on count one, the claim for an account stated. The court assessed Armstrong's damages at $19,475.04, and awarded interest in the amount of $17,819.68. As to the third count, the court found that the conveyances of Mr. Gilbert's property were made for no valid consideration and to avoid the payment of debts, and declared them void. The Gilberts filed a motion for a new trial, which was denied by operation of law pursuant to Rule 59.1, A.R.Civ.P.
The Gilberts argue on appeal that the evidence does not support the trial court's judgment on an account stated. Specifically, they contend that the evidence presented at trial was confusing and indicated that various amounts were claimed by Armstrong, so that the trial court could not have determined that a sum certain was owed by Mr. Gilbert.
Findings by the trial court following an ore tenus hearing are presumed correct, and its judgment based upon those findings will not be disturbed unless it is plainly and palpably wrong or manifestly unjust. McInnis v. Lay, 533 So. 2d 581 (Ala.1988). An account stated is an agreement between parties who have had previous monetary transactions that the statement of account and the balance struck are correct and a promise, express or implied, that the debtor will pay that amount. Wilhite v. Beasley, 497 So. 2d 103, 105 (Ala. 1986). When an account is rendered or presented to the debtor and the debtor does not object to it within a reasonable time, the failure to object is regarded as an admission that the account is correct, and it becomes an account stated. Karrh v. Crawford-Sturgeon Ins., Inc., 468 So. 2d 175, 176 (Ala.Civ.App.1985). Once the plaintiff proves a prima facie case in an action on an account stated, the burden shifts to the defendant to assert any legal defense available. Id.
A review of the record reveals nothing to overcome the presumption of correctness afforded to the judgment the trial court entered; rather, it reveals ample evidence *1082 to support Armstrong's judgment. Armstrong submitted exhibits and testimony establishing that Mr. Gilbert repeatedly failed to pay the balance of the account; it submitted a copy of the ledger card that was mailed to Mr. Gilbert, showing a balance of $19,475.04; and it presented the testimony of two of its representatives regarding Mr. Gilbert's acknowledgement of the debt owed and of his various plans for paying the debt. According to the testimony of one of Armstrong's witnesses, Mr. Gilbert did not object to the amount Armstrong claimed he owed, until he received the letter from the collection company in 1985. In summary, the trial court's conclusions, following the ore tenus hearing, that Armstrong proved its prima facie case of an account stated and the court's assessment of Armstrong's damages are not palpably wrong or manifestly unjust.
The Gilberts argue that the evidence does not support the trial court's finding that the conveyances of real property from Mr. Gilbert to Mrs. Gilbert were fraudulent. They note that the conveyances were made in July 1983, before Armstrong ceased doing business with Mr. Gilbert, and they point out that Mr. Gilbert testified at trial that he transferred the property so that he could receive certain insurance benefits.
A conveyance will be declared fraudulent upon a showing of three elements: 1) a creditor to be defrauded; 2) a debtor intending to defraud; and 3) a transfer of property from which the creditor could have satisfied part or all of his claim. Champion v. Locklear, 523 So. 2d 336, 338 (Ala.1988). The law permits a finding of constructive fraud when an indebted grantor conveys property without receiving valuable consideration. Id. Once constructive fraud is alleged in a conveyance among family members, the grantee has the burden of proving that the transaction was supported by valuable and adequate consideration. Reese v. Smoker, 475 So. 2d 506, 508 (Ala.1985). The resolution of a fraudulent conveyance claim depends upon the facts. Where they are disputed, as here, every presumption must be indulged in favor of the trial court's findings, and its judgment will not be disturbed unless it is palpably wrong. Mr. Gilbert testified that his wife paid only $10 for each parcel he conveyed to her, and he admitted that each parcel of property was worth more than that amount. Further, Mr. Gilbert stated that he and his wife jointly spend the rental income from the properties he conveyed to her. Although Mr. Gilbert testified that he conveyed the real estate so that he could receive insurance benefits, the trial court was not bound to believe this testimony. Based on the record, we cannot say that the trial court's finding that the conveyances were fraudulent is palpably wrong and, therefore, it will not be disturbed.
The trial court's factual conclusions and its judgment are supported by the evidence presented in this ore tenus case. The judgment of the trial court is, therefore, due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and JONES, HOUSTON and KENNEDY, JJ., concur. | April 6, 1990 |
48f5f208-69e9-4aac-971c-6dcec185f1c2 | Sasser v. Connery | 565 So. 2d 50 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 50 (1990)
John Lee SASSER, as Administrator of the Estate of Ollie Powers Sasser, Deceased
v.
Dr. Francis CONNERY.
Dr. Francis CONNERY
v.
John Lee SASSER, as Administrator of the Estate of Ollie Powers Sasser, Deceased.
88-1113, 88-1171.
Supreme Court of Alabama.
April 6, 1990.
Rehearing Denied June 15, 1990.
Alex W. Newton of Hare, Wynn, Newell & Newton and R. Gordon Pate of Pate, Lewis & Lloyd, Birmingham, for appellant/cross-appellee.
W. Stancil Starnes and W. Hill Sewell of Starnes & Atchison, Birmingham, for appellee/ cross-appellant.
MADDOX, Justice.
The plaintiff's appeal presents one question: Whether the trial court, in a medical malpractice case, erroneously instructed the jury that "where the proper course [of treatment] is subject to reasonable doubt, a physician is not liable for an error in judgment, an honest mistake." The defendant's cross-appeal presents the issue of whether he was entitled to a directed verdict because the plaintiff failed to present any expert medical testimony that the defendant's alleged negligence proximately caused the death of Ollie Powers Sasser. Because we find that the plaintiff did not present any expert medical testimony that the doctor's alleged negligence probably caused Ollie's injuries and death and that the defendant was therefore entitled to a directed verdict, we do not address the plaintiff's issue concerning the jury charge.
John Lee Sasser, as administrator of the estate of Ollie Powers Sasser, filed a wrongful death action against Dr. Francis Connery. The plaintiff alleged that Dr. Connery's failure to conduct certain tests on Ollie resulted in her eventual death from cancer, a cancer that plaintiff alleges could have been effectively treated if those tests had been conducted and the cancer detected earlier. At the close of the plaintiff's case and at the close of all the evidence, Dr. Connery moved for a directed verdict; both times, the trial court denied that motion. The jury returned a verdict in favor of Dr. Connery.
"In medical malpractice cases, the plaintiff must prove negligence through the use of expert testimony, unless an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience." Monk v. Vesely, 525 So. 2d 1364, 1365 (Ala.1988). As this Court *51 stated in Peden v. Ashmore, 554 So. 2d 1010 (Ala.1989):
554 So. 2d at 1012-13 (quoting Dobbs v. Smith, 514 So. 2d 871, 872 (Ala.1987)). The Court went on to state:
554 So. 2d at 1013 (emphasis original).
Because this lawsuit was filed prior to June 11, 1987, the "scintilla rule" applies to this case. See Ala.Code 1975, § 12-21-12. Sasser did have experts testify, but none of them testified that Dr. Connery's alleged negligence caused any injury to the deceased. None of the experts could say that if Dr. Connery had conducted the tests in question and had found the cancer, then Ms. Sasser's life would have been saved or even extended. One of the plaintiff's experts, Dr. Goldstein, testified that it was equally probable that an early diagnosis of Ollie's cancer would not have changed the outcome or extended her life; he stated that his testimony was "speculation" and that he could not say whether with the tests she would have lived longer. Another of the plaintiff's experts, Dr. Addison, could not testify as to any medical probability that an earlier diagnosis would have changed the outcome or would have extended Ollie's life. In Peden, the experts also testified that their testimony was "speculation" and that while they disagreed with the defendant's treatment, they could not say that it made a difference one way or the other. Here, Sasser did not produce a scintilla of evidence that Dr. Connery's alleged negligence probably caused Ollie's death or probably caused her life to be shortened. Without this scintilla of evidence that Dr. Connery probably caused Ollie's death or that earlier diagnosis probably would have extended her life, Sasser failed to meet the burden of proof, and the case was improperly submitted to the jury.
Although the trial court erred in submitting this case to the jury, the jury returned a verdict for Dr. Connery. We find that it would be a waste of judicial resources for this Court to reverse the judgment for Dr. Connery entered pursuant to a favorable jury verdict and remand the cause just to have the trial court enter another judgment for him. Therefore, the judgment in favor of Dr. Connery is due to be affirmed. Because of that holding, we do not address the plaintiff's argument that the trial court improperly instructed the jury.
88-1113 AFFIRMED.
88-1171 AFFIRMED.
ALMON, SHORES, ADAMS, HOUSTON, STEAGALL and KENNEDY, JJ., concur.
HORNSBY, C.J., and JONES, J., concur specially.
HORNSBY, Chief Justice (concurring specially).
I concur with the majority's resolution of this matter. However, because I am deeply concerned by a particular issue that is not addressed in the majority opinion, I feel that it is necessary to state my views.
*52 The majority has not addressed the issue of whether a doctor should be entitled to have the jury instructed that it may not find against him if the plaintiff's injuries resulted from an "honest mistake" in exercising his professional judgment. Because I am concerned that such a jury charge will mislead the jury as to the applicable standard of care, I concur specially to express my views on the propriety of allowing such a jury charge in medical malpractice cases.
I am persuaded by the fact that this state has recently adopted a Medical Liability Act. Ala.Code 1975, § 6-5-480 et seq. The standard of care to be exercised by a physician in this state is clearly spelled out in § 6-5-484, which provides:
This statutory standard does not include any "good faith" or "honest treatment" component. Thus, a jury charge that would allow the defendant to put before the jury the issue of his good faith or his honest belief that a particular course of treatment was proper confuses the proper standard of care in a medical malpractice case.
It should be beyond argument that a particular course of conduct may be honestly believed to be proper on a subjective level and yet evidence negligence by a failure to meet the proper standard of care. It is my contention that the jury charge at issue in the present controversy offers great opportunity for confusion on the part of a jury. I am persuaded in my analysis of this issue by the fact that during the past decade ten American jurisdictions have specifically disapproved of the "good faith" or "honest mistake" jury charge in medical malpractice cases.
In Somer v. Johnson, 704 F.2d 1473 (11th Cir.1983), the United State Court of Appeals for the Eleventh Circuit was confronted with a case not unlike the one now before us. In that case, the plaintiff sued two doctors, alleging malpractice under Florida law; the plaintiff objected to a jury instruction stating that doctors are not liable for "honest errors of judgment." The Somer court noted that Florida had enacted a statute that codified the standard of care expected of doctors, and stated:
Somer, 704 F.2d at 1478 (citation omitted).
That same concern has been echoed by other courts. See, e.g., Rogers v. Meridian Park Hospital, 307 Or. 612, 772 P.2d 929 (1989) (error in judgment rule disapproved where controversy involved different treatment choices); Ouellette v. Subak, 391 N.W.2d 810 (Minn.1986) (affirming lower court's refusal to give a charge on good faith error in choosing among alternative treatments as possibly confusing); Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986) (plaintiff may be required to prove that doctor acted with less than good faith under charge on good faith error); Watson v. Hockett, 107 Wash. 2d 158, 727 P.2d 669 (1986) (word "honest" should be deleted from the charge on "honest mistake"); Wall v. Stout, 310 N.C. 184, 311 S.E.2d 571 (1984) (holding that honest error charge is potentially confusing and should not be part of jury charge on standard of care due from a doctor); Teh Len Chu v. Fairfax *53 Emergency Medical Associates, 223 Va. 383, 290 S.E.2d 820 (1982) ("terms such as `honest mistake' and `bona fide' error have no place in instructions dealing with negligence in medical malpractice cases"); Veliz v. American Hosp., Inc., 414 So. 2d 226 (Fla.Dist.Ct.App.1982) (holding that a charge based on nurse's honest error in judgment is erroneous because it is confusing and misstates applicable standard of proof).
In Logan v. Greenwich Hospital Ass'n, 191 Conn. 282, 465 A.2d 294 (1983), the court stated:
191 Conn. at 298-99, 465 A.2d at 303.
In the case of Teh Len Chu v. Fairfax Emergency Medical Associates, 223 Va. 383, 290 S.E.2d 820 (1982), the court stated:
The practice of allowing this jury charge raises a very serious question: "Are other members of society liable for negligent acts, even though they may be the result of an `honest error in judgment?'" Watson v. Hockett, 42 Wash. App. 549, 712 P.2d 855 (1986). Is a person driving down the highway liable for an injury he negligently causes regardless of whether that injury is caused by a "good faith" error in judgment? Id., 42 Wash. App. at 556-57, 712 P.2d at 860.
Because I believe that the challenged jury charge may allow juries to find that the defendant acted negligently but that the defendant's negligence resulted from a good faith error on the defendant's part, I would hold that this jury charge should be abandoned. Any use of this charge in a medical malpractice case should be considered prejudicial error.
JONES, Justice (concurring specially).
I concur in the opinion of the Court and I also concur in the Chief Justice's special concurring opinion. Additionally, I offer the following language, which I believe is an appropriate jury instruction in an alternative-treatment case:
"You have heard evidence in this case concerning alternative methods of treatment. If you are reasonably satisfied from the evidence that the defendant, in his treatment of the plaintiff, had available to him different or alternative methods of treatment, and that each of those methods was within the standard of care practiced by other physicians in the medical community, the mere fact that a bad result was obtained by use of the method employed by the defendant doctor cannot be used by you as a basis for imposing liability on the defendant. Stated another way, the law recognizes that, in determining whether the treating physician is liable for malpractice, the defendant is permitted to show, in his defense, if he can, that in treating the plaintiff he exercised his professional judgment in choosing one particular method of treatment as opposed to another method, when both methods of treatment are recognized and accepted by the medical community. On the other hand, you may impose liability if you are reasonably satisfied from the evidence that the method employed by the defendant in his treatment of the plaintiff is below the applicable standard *54 of care, as I have previously explained that standard to you." | April 6, 1990 |
8601f7ac-6635-45b4-bb55-043855808d18 | Valley Properties, Inc. v. Strahan | 565 So. 2d 571 | N/A | Alabama | Alabama Supreme Court | 565 So. 2d 571 (1990)
VALLEY PROPERTIES, INC., et al.
v.
Leon STRAHAN and Mary Sue Strahan.
88-480, 88-501.
Supreme Court of Alabama.
April 27, 1990.
Rehearing Denied June 22, 1990.
*573 Gerald R. Paulk of Livingston, Porter & Paulk, Scottsboro, for appellants.
Robert W. Hanson, Albertville, for appellees.
ALMON, Justice.
This appeal arises from a suit based on alleged fraud and interference with business relations filed by Leon and Mary Sue Strahan against Haden and Mary Tidmore and Valley Properties, Inc. A jury awarded the Strahans a total of $75,000 and denied relief to the Tidmores on their counter-claims for damages for breach of contract and for ejectment. The trial court entered judgment on those verdicts.
In 1986 the Strahans were operating a restaurant known as Val Monte Steak House on property they possessed under a lease with an option to purchase. The property was owned and leased by Vickie Robbins[1] and was subject to a mortgage held by the Tidmores.
In 1986, after some discussion and negotiation, the Tidmores offered to advance the Strahans funds to be used to complete improvements that they had begun on the property. The Tidmores entered into an agreement dated March 16, 1986, to lend the Strahans $30,000. In consideration for this loan, the Tidmores were to receive 2½% of the gross receipts from the Steak House business until the loan was repaid. The Strahans initially made some of these payments but thereafter ceased making payments.
On September 23, 1986, the parties entered into a second agreement under which the Tidmores lent the Strahans an additional $10,000. This second agreement required the Strahans to make the 2½% payments still due under the March agreement and to continue to pay the Tidmores 2½% of the gross receipts. The Strahans failed to make any of these payments following the execution of the September agreement.
Apparently because of problems between Robbins and the Tidmores, the Tidmores began foreclosure proceedings on their mortgage on the property. In January 1987, the Tidmores and the Strahans began discussing a plan by which the Tidmores would purchase the property from Robbins and lease it to the Strahans. The Tidmores proposed to the Strahans a lease with an option to purchase that was very similar to the Robbins lease. The proposed lease included an attachment, referred to by the parties and herein as "Exhibit B," adding a long list of conditions not present in the Strahans' lease with Robbins. Exhibit B would have given the Tidmores extensive power over the daily operation of the Steak House and specified the accounting and business practices in detail. For example, paragraph 12 directed the Strahans to provide the Tidmores, or their agent, a set of keys to the entire property, including the office, with complete access to all of the records. The Strahans contend that they never agreed to the inclusion of Exhibit B in the lease.
On January 30, 1987, the parties met in the office of Ralph Smith, the Tidmores' lawyer, and executed a lease/purchase *574 agreement. This agreement established a purchase price, gave credit to the Strahans for payments they had made to Robbins, and added the principal and interest on the funds that the Tidmores had advanced in 1986. Although it is undisputed that all the parties signed the agreement, there is considerable disagreement between the Tidmores and the Strahans as to whether Exhibit B was part of the executed lease/purchase agreement.
The Tidmores claim that the Strahans were given a copy of Exhibit B, prior to the meeting, and were advised to consult their lawyer. The Tidmores, Smith, and Smith's legal secretary, Deborah Pinson, all assert that the Strahans agreed to the inclusion of Exhibit B, that Exhibit B was present in the office with all of the other lease documents, and that it was later stapled to the executed lease that the Strahans signed. According to Smith, a reference to its inclusion was added in the main body of the lease at Paragraph 33.
Leon Strahan, in contrast, claims that Exhibit B was not attached to the copies that he and his wife signed and was not attached to the copy that they were given to take home. Strahan maintains that the Tidmores assured him that the provisions in Exhibit B would not be a part of the executed lease. He testified that he received a letter from Haden Tidmore, dated January 24, 1987, stating that "we will follow our two previous agreements." The January 24 letter states that the new agreement deleted several provisions previously required and would save the Strahans more money. For example, the letter states in part:
Following the execution of the lease/purchase agreement on January 30, the Strahans did not comply with the provisions of Exhibit B, nor did they submit payments of 2½% of the gross receipts as directed by the March 16 and September 23 agreements.
On February 21, 1987, the Tidmores received title to the property from Robbins. On that same day the Tidmores, through Smith, informed the Strahans that they were the new owners of the property. Smith's letter emphasized that Exhibit B was a part of the January 30 agreement and that any term or condition in Exhibit B that was not satisfied should be fulfilled immediately. The Strahans assert that it was only after they received this letter that they discovered the reference to Exhibit B in paragraph 33 of the lease, and, further, that this was their first notice that the Tidmores intended to enforce the conditions of Exhibit B. The Tidmores claim that, following this initial letter, they gave the Strahans timely notice to cure the default in regard to the conditions detailed in Exhibit B.
On March 10, 198717 days after they received title to the propertythe Tidmores executed a lease/purchase agreement for the property with Robert and Betty Bains from Georgia. This new agreement provided that the Bainses would pay the Tidmores $550,000 versus the original $310,000 that the Strahans had agreed to pay.
The Strahans insist that, following the agreement with the Bainses, the Tidmores began attempts to evict them from the property and they allege that the Tidmores were motivated by the lucrative offer from the Bainses. They charge that various inspectors, including the county health inspector, the fire marshal, and the city building inspector, came to the property at the insistence of the Tidmores. They also allege that the Tidmores hired off-duty policemen and deputies to watch the premises during and after business hours, and that the Tidmores tried to create problems by attempting to hire their employees and by *575 telling their employees "they were taking over" the business.
The Strahans filed an action in the circuit court against the Tidmores and Valley Properties, a corporation owned principally by the Tidmores and through which they purchased and leased the property, alleging fraud and interference with business and demanding compensatory and punitive damages. The Tidmores and Valley Properties counterclaimed, alleging a breach of the March 16 loan agreement, the September 23 loan agreement, and the January 30 lease/purchase agreement, and seeking damages for fraud. The Strahans amended their original complaint and added a count alleging breach of the January 30 lease and seeking specific performance of the purchase option contained in that lease.
During this same time, the Tidmores and Valley Properties filed an action for eviction against the Strahans in the District Court of Marshall County, Alabama. The district court entered a judgment in favor of Valley Properties, awarding it possession of the property. The Strahans appealed that judgment to the circuit court.
The Tidmores and Valley Properties filed a motion to consolidate the Strahans' appeal from the judgment of eviction with the Strahans' action against the Tidmores and Valley Properties, and the circuit court granted that motion.
The jury returned the following verdicts:
The Tidmores and Valley Properties filed a motion for judgment notwithstanding the verdict, or alternatively, for a new trial.
The Strahans filed an amended complaint asking the court to order the Tidmores to specifically perform their obligation to sell pursuant to the option to purchase contained in the lease and asking the court to establish the rights of the parties in regard to the option to purchase and to establish the purchase price of the property. The trial court denied the Tidmores' and Valley Properties' motions and the Strahans' claim for specific performance and declaratory relief. The Tidmores and Valley Properties appeal from the judgments in favor of the Strahans based on those verdicts.
The Tidmores argue six issues in their appeal to this Court. First, they assert that the verdict in favor of the Strahans on the fraud claim should be set aside because, they say, it is inconsistent with the jury finding that the Tidmores were not entitled to damages for breach of contract. The Strahans' fraud claim was based on alleged misrepresentations made by the Tidmores concerning the inclusion of Exhibit B in the January 30 agreement. The Tidmores argue that in order for the jury to return a verdict for the Strahans on that claim, it had to have found that Exhibit B was a part of the lease and that, under such a finding, the Tidmores were entitled to receive the 2½% of the Steak House gross receipts as specified in Exhibit B. The Tidmores also tender the proposition that the Strahans are arguing "attempted fraud," which the Tidmores argue is insufficient to support a claim of fraud because of the lack of reliance by the party on whom the fraud is attempted.
The Strahans counter with the argument that it was not necessary for the jury to find that Exhibit B was effectively included in the agreement for them to prevail on the fraud claim, but, rather, that the Tidmores' representations that Exhibit B would not be included in the lease and, thus, that they would not attempt to enforce it, together with their later oppressive attempts to enforce Exhibit B, provided a basis for the fraud verdict. The Strahans assert that there is no inconsistency in the verdict and *576 cite Ala.Code 1975, § 6-5-103,[2] and the trial court's charge to the jury to support their argument that the jury could have found fraud in the Tidmores' taking the position that Exhibit B was part of the agreement after having promised that it would not be. Section 6-5-103 states:
The pertinent portion of the trial court's charge to the jury on the issue of fraud reads:
In order for a promise to constitute "fraudulent misrepresentation" there must have been an intent not to do the act promised, and such a promise must have been given with the intent to deceive. Army Aviation Center Federal Credit Union v. Poston, 460 So. 2d 139 (Ala. 1984). Fraud in the legal sense is misrepresentation of a material fact of such a nature that would induce an injured party to take action. Reeves v. Porter, 521 So. 2d 963 (Ala. 1988). The Strahans argue that there was substantial evidence presented to support their fraud claim. First, they insist that the Tidmores fraudulently induced them to sign a lease in which they had deceptively attempted to include the provisions of Exhibit B while, at the same time, representing that Exhibit B was not part of the agreement and would not be enforced. Second, they contend that the Tidmores ventured to enforce these provisions and that, because of the Tidmores' actions, they suffered both injury to their business and personal injury. In support of their contentions, Mrs. Strahan testified to the following:
Even though the jury properly could find that Exhibit B was not part of the lease, the jury could also consistently find that the Tidmores promised not to treat Exhibit B as part of the lease, that the promise was fraudulent because made with intent not to perform and with intent to deceive, and that the Strahans were damaged thereby, because of the Tidmore's attempts to enforce Exhibit B.
As a subpart of their first issue, the Tidmores argue that the Strahans' complaint is defective because it does not allege specific facts that constitute fraud as required by Rule 9(b), Ala.R.Civ.P. However, the rule requiring that the circumstances of the fraud be stated with particularity does not require that every element be stated with particularity, but only that the pleader must use more than generalized, conclusionary statements setting out the fraud; the pleader must state the time, the place, the content or substance of the false representations, the fact misrepresented, and must give an identification of what has been obtained. Robinson v. Allstate Ins. Co., 399 So. 2d 288 (Ala.1981). In the case sub judice, the Strahans' complaint adequately set forth the facts that they contended constituted fraud. Paragraphs 9 and 10 of the complaint stated:
Count one, alleging fraud, stated:
This pleading was sufficient to give the Tidmores fair notice as to the nature and subject of the Strahans' claim in fraud. To the extent that more specificity might have been appropriate, the Tidmores' proper remedy would have been to file a Rule *579 12(e), Ala.R.Civ.P., motion for a more definite statment. The complaint was not subject to dismissal, however, so no reversible error is presented by this issue.
Second, the Tidmores argue that it was error to deny their motion for directed verdict and their j.n.o.v. motion on the fraud claim. In an action for fraud it is necessary for the plaintiff to prove the following elements: (1) a false representation (2) of a material existing fact (3) relied upon by the plaintiff, (4) who was damaged as a proximate result of the alleged misrepresentation. Russellville Production Credit Ass'n. v. Frost, 484 So. 2d 1084 (Ala. 1986). If the fraud is based upon a promise to perform or abstain from performing in the future, two additional elements must be proved: (1) the defendant's intention, at the time of the alleged misrepresentation, not to do the act promised, coupled with (2) an intent to deceive. Id.
The Tidmores contend that there was no evidence presented at trial to support the claim that a material misrepresentation was made. They argue that the record is devoid of evidence from which the jury could find that the lease did not include Exhibit B and that, even if the jury could find that the Tidmores misrepresented that Exhibit B would not be included, the Strahans' reliance on any such representation was not reasonable in light of the documents presented to them at the January 30 meeting. They cite testimony by Leon Strahan in support of their argument.
The Strahans in contrast maintain that there was substantial evidence presented showing that the Tidmores had attempted to include Exhibit B as a portion of the agreement, despite the fact that they (the Strahans) specifically objected to its inclusion. Mary Sue Strahan testified on direct examination as follows regarding the January 30 meeting:
Mrs. Strahan testified on cross-examination as follows:
Leon Strahan similarly testified as to discussions between the parties at the January 30 meeting concerning Exhibit B:
The Tidmores argue that the Strahans could not have reasonably relied on the alleged misrepresentation that Exhibit *581 B would not be included in the January 30 lease because paragraph 33 of that lease incorporated Exhibit B by reference. A party is ordinarily bound by the terms of a document he signs in spite of inconsistent oral statements. See, e.g., Alpine Bay Resorts, Inc. v. Wyatt, 539 So. 2d 160 (Ala. 1988).
If a party is lulled into a sense of security, however, by misrepresentations of the contents of a document by an agent of the other party, "the law inputes to him no knowledge of its contents." Southern Building & Loan Ass'n v. Dinsmore, 225 Ala. 550, 552, 144 So. 21, 23 (1932) (citations omitted); Taylor v. Dorough, 547 So. 2d 536, 541 (Ala.1989). In Arkel Land Co. v. Cagle, 445 So. 2d 858 (Ala.1983), an attorney for the defendant mineral lessee misrepresented to the plaintiff lessor that a certain portion of the plaintiff's property would not be included in the lease. This Court affirmed the plaintiff's fraud judgment. The diligence required of parties when initially contracting is greater than when the parties renew a contract. Woodlawn Fraternal Lodge No. 525, F. & A.M. v. Commercial Union Ins. Co., 510 So. 2d 162, 164 (Ala.1987).
In this case, as in Woodlawn Fraternal Lodge, the controversy does not involve an initial contract between the Strahans and the Tidmores, but is based upon an ongoing business relationship. The Strahans had been operating Val Monte Steak House for a substantial period of time under an agreement with Robbins. The Tidmores were familiar with this arrangement, had visited the restaurant often, and had at times socialized with the Strahans. Additionally, the Strahans and the Tidmores had an established contractual history as a result of the loans the Tidmores had advanced to the Strahans. The two leases executed by the Strahans for the property (the Robbins lease and the Tidmore lease) are almost identical in form and content.
Paragraph 33 is on the next to last page of the 14-page lease. It is headed "Time of the Essence," and in the Robbins lease it simply read, "Time is of the essence in all provisions of this lease." Into the Tidmore lease was typed, after those printed words, "and subject to the terms and conditions set forth in Exhibit `B,' attached." This addition would have been easily overlooked by the Strahans, who, being familiar with the Robbins lease, could reasonably have relied on the Tidmores' alleged representations that the new lease was the same as the Robbins lease except for certain financial terms.
The Strahans testified unequivocally that Exhibit B was not attached to the lease when they signed it, and the jury could have found from their testimony that the Tidmores' attorney induced them to sign the lease by representing that Exhibit B was not a part of the lease. Although there was a reference to Exhibit B in paragraph 33 of the lease, the jury could have found that the Tidmores' attorney lulled the Strahans into not examining the lease by telling them "not to worry about" Exhibit B, implying that it was not included in the lease and would not be enforced. In light of the relationship that existed between the Strahans and the Tidmores, together with the representations that the lease was the same as the Robbins lease and that Exhibit B would not be included, the jury could have found that it was not unreasonable for the Strahans to rely on the Tidmores' assertions that the lease did not contain Exhibit B and that the Strahans would not have to worry about it.
This Court stated the following in Super Value Stores, Inc. v. Peterson, 506 So. 2d 317 (Ala.1987), regarding proof of damages in a fraud action: "[I]f the plaintiff shows that he sustained actual damages as a result of the fraud, even though the exact amount may not be shown, the plaintiff is entitled to recover nominal damages, and, where appropriate, punitive damages." 506 So. 2d at 334. Based on the evidence before this Court, we conclude that the Strahans have produced sufficient evidence to support the jury's verdict in their favor on the fraud issue. There is adequate evidence to support findings that the Tidmores tried to enforce the conditions of Exhibit B, contrary to their alleged representations that it would not be part of *582 the new lease, and that the Strahans were damaged by their actions. Furthermore, the presumption of correctness of a jury verdict is strengthened by the refusal of the trial court to grant a new trial. Lewis v. Ritch, 417 So. 2d 210 (Ala.Civ.App.1982). Therefore, we affirm the judgment on the fraud claim.
Next, the Tidmores argue that the trial court erred in overruling their motion for a directed verdict or j.n.o.v. on the claim alleging interference with a business relation. The Tidmores postulate, among other things, that this tort can be committed only by a party outside the contractual relationship. In other words, they argue that because a legal contractual relationship existed between them and the Strahans, they cannot be said to have interfered with the Strahans' Val Monte business. The Tidmores cite Hickman v. Winston County Hospital Board, 508 So. 2d 237 (Ala.1987), in support of this position. Hickman involved a suit by an employee against her employer for interference with business or contractual relations. The Court held that the employer's breach of his own contract with the employee was not a basis for the tort. Id. at 238. However, the Court stated that the tort could be applicable to individuals acting outside their scope of employment. The Tidmores argue that if there was any cause of action to be sued upon, which they dispute, it would have been one for trespass or breach of contract.
A claim of intentional interference with a business relation, to be actionable, requires: (1) The existence of a contract or business relation; (2) defendant's knowledge of the contract or business relation; (3) intentional interference by the defendant with the contract or business relation; (4) absence of justification for the defendant's interference; and (5) damage to the plaintiff as a result of the defendant's interference. Gross v. Lowder Realty Better Homes & Gardens, 494 So. 2d 590 (Ala. 1986). The Gross case outlined a new rule of law in Alabama. The purpose behind the creation of a single set of elements was to establish a framework broad enough to encompass both the tort of interference with business relations and that of interference with contractual relations.
Although the Tidmores and the Strahans were parties to a contract, the alleged interference by the Tidmores was not with that relationship. The Strahans' claim relates to the relationship between the Strahans and their employees and customers at the Val Monte Steak House business, not the relationship of landlord and tenant between the Tidmores and the Strahans. As to this issue, the record reveals sufficient evidence to support the jury's finding in favor of the Strahans. Leroy Strahan, Leon's brother, testified that many customers were dissatisfied and uncomfortable as a consequence of the presence of the various inspectors and deputies on the property:
The record reflects that the Tidmores hired former Steak House employees to watch the premises. Leroy testified that the Tidmores had confused other employees by telling them that they were going to take over the place:
Thus, the Strahans' claim is not barred by the rule that the tort of intentional interference applies only to acts by third parties as to the business relation, even though there were also business relations between the Tidmores and the Strahans. Because sufficient evidence was presented to sustain the jury's verdict on the claim of an intentional interference with business relations, we affirm the judgment as to this issue.
The Tidmores next claim that it was reversible error to allow the Strahans to present evidence to the jury of the Tidmores' financial condition. It appears that the trial court allowed the Strahans to cross-examine Mr. Tidmore after he made statements to the jury on direct examination by his attorney that he had told Leon Strahan that "we've mortgaged everything we've got. At my age we've got no retirement income or anything. We've got [sic] mortgaged everything we've got to put you in business...." The Tidmores attempt to draw a distinction between Mr. Tidmore's testifying to what he told Mr. Strahan and his testifying directly to the jury that he had mortgaged everything he had. They contend that, because the statements were made within the context of a conversation between him and Leon Strahan, Tidmore was not holding himself out to the jury as being in poor financial condition, and, therefore, that the testimony was irrelevant and prejudicial and should have been excluded. The trial court, however, properly found that the testimony had the effect of placing the Tidmores' financial condition before the jury.
The latitude and extent of cross-examination are matters within the discretion of the trial court and are revisable on appeal only for prejudicial abuse, and a party claiming such an abuse of discretion has the burden of persuasion. Hembree v. City of Birmingham, 381 So. 2d 664 (Ala. Crim.App.1980). Because the Tidmores put their financial condition before the jury, the Strahans were entitled to cross-examine them in regard to that matter; therefore, there was no abuse of discretion.
The Tidmores next argue that it was error for the trial court to deny their motions for summary judgment, directed verdict, and j.n.o.v., on their eviction action. Summary judgment is appropriate only if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. McMullin v. AmSouth Bank, 512 So. 2d 1382 (Ala.Civ. App.1987). A directed verdict or j.n.o.v. is proper only where there is a complete absence of proof on a material issue as to the claim or defense. Ritch v. Waldrop, 428 So. 2d 1 (Ala.1982). Both the Tidmores and the Strahans offered plausible evidence to support their arguments. For instance, the Tidmores proffered documentation that the Strahans had defaulted on an agreement to make a security deposit and that they had allowed the property insurance to lapse. The Strahans countered with affidavits and testimony that the Tidmores had told them the security deposit was not necessary. *584 They also showed that a new insurance policy had been issued on the same day the old policy had lapsed, and that, therefore, the property was never without coverage. Clearly, the Strahans presented evidence as to issues in support of their defenses to the eviction claim, and the trial court was correct in denying the Tidmores' motions.
Last, the Tidmores argue that the trial court incorrectly charged the jury on their claim alleging breach of contract. They argue that the following statements by the trial judge, concerning when a lessor may recover property, were misstatements of the law: (1) that a lessor is required to allow a lessee a "reasonable time" within which to cure a default before the lessor can recover the premises; (2) that notice must be given in order to terminate possession; and (3) that a default must be a material one for the landlord to be entitled to regain possession of the property.
It is the duty of the trial judge to instruct jurors fully and correctly on the applicable law of the case and to guide, direct, and assist them toward an intelligent understanding of the legal and factual issues involved in the search for truth. Grayco Resources, Inc. v. Poole, 500 So. 2d 1030 (Ala.1986). However, it is within the province of the jury to apply the law as it is given to them to the facts of the case. Raines v. Williams, 397 So. 2d 86 (Ala. 1981).
The record reveals that the lease between the Tidmores and the Strahans specifically defines what conditions constitute default. It states that if a lessee fails to comply with any of those conditions then the lessor shall give notice to the lessee in writing, sent by registered mail, postage prepaid and return receipt requested. There was no evidence that the Tidmores complied with the notice requirements. Having failed to prove compliance, a landlord is not entitled to a reentry of the premises and a forfeiture. Noel Smith Dev. Co. v. National Filtronics, Inc., 360 So. 2d 338 (Ala.1978); Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So. 2d 23 (1963). Because the lease specifically required notice and there was no evidence that the Tidmores satisfied the notice requirement, the court correctly charged the jury that the Strahans had a reasonable time in which to cure any default.
No reversible error is presented by the Tidmores' contention that the trial judge's instruction that a default, to justify eviction, must be a material one held the Tidmores to a higher standard than is required by law. Since the lease itself required notice and the Tidmores did not give the Strahans notice of default and a reasonable opportunity to cure, the materiality of any defaults committed by the Strahans is irrelevant to the Tidmores' right to evict them, and any error in the instruction was harmless. Rule 45, Ala.R.App.P. Reversible error in the giving of an instruction occurs only where that error is prejudicial. Underwriters Nat. Assur. Co. v. Posey, 333 So. 2d 815 (Ala.1976). We find no prejudice in this instance.
A judgment based on the verdict of a jury is presumed to be correct and will not be reversed unless, after allowing all reasonable presumptions of its correctness, the preponderance of the evidence against the verdict is found to be so decided so as to clearly convince this Court that it is wrong and unjust. Shelby County v. Oldham, 264 Ala. 626, 89 So. 2d 106, 107 (1956).
Because we find no reversible error, the judgment of the trial court is due to be, and it hereby is, affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, ADAMS and STEAGALL, JJ., concur.
[1] Robbins is not a party to this action.
[2] Although the Strahans' brief actually refers to the section as § 6-5-10, because of the text quoted it is clear that they are referring to § 6-5-103. | April 27, 1990 |
a1dcbd98-9047-4417-8e6d-ed2db082628a | Williams v. Price | 564 So. 2d 408 | N/A | Alabama | Alabama Supreme Court | 564 So. 2d 408 (1990)
Tracy WILLIAMS
v.
Gary PRICE.
88-1066.
Supreme Court of Alabama.
April 20, 1990.
Jeffrey C. Kirby, L. Andrew Hollis, and Elizabeth R. Jones of Pittman, Hooks, Marsh, Dutton & Hollis, Birmingham, for appellant.
William Anthony Davis III and E. Martin Bloom of Starnes & Atchison, Birmingham, for appellee.
HOUSTON, Justice.
Tracy Williams appeals the trial court's summary judgment in favor of Gary Price in his action to recover damages based on personal injury brought under Ala.Code 1975, § 25-5-11 (part of the Alabama Workmen's Compensation Act). We affirm.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Rule 56(c), Ala.R.Civ.P. On review of a summary judgment for a defendant, this Court views the evidence in a light most favorable to the plaintiff and resolves all reasonable doubts against the defendant. Wilson v. Brown, 496 So. 2d 756 (Ala.1986). The present action was pending on June 11, 1987; therefore, the applicable standard of review is the "scintilla rule." Ala.Code 1975, § 12-21-12.
After reviewing the record before us, we find that the following material facts are not in dispute: Williams had worked for approximately eight months as assistant pressman for Central Publishing Company *409 ("Central") in Birmingham, Alabama, where Price was the plant manager and a co-employee of Williams. Thomas Johnson was Williams's supervisor. During the course of Williams's employment while he was attempting to unclog the paper waste removal system,[1] his legs were crushed in the paper baler. On the day that his injury occurred, Williams had reported the blockage in the paper feed chute to Johnson, who was in charge of running the baling machine. Johnson then reported the clog to Price, who directed Johnson to have someone unclog the chute, specifically telling Johnson to leave the baler on while the chute was being uncloggednot to turn off the baling machine for any reason without permission, even though Price had been warned of the danger of allowing workers to unclog the cyclone unit while the baling machine was running. In addition, there had been posted on the baler itself next to the main switch box a notice that stated, "Do Not Turn Off Unless You Ask Personnel." Subsequently, Johnson instructed Williams to unclog the baler, providing him with the necessary tools and telling him of a pipe located on the roof to use in breaking up the clog. Prior to this time, Williams had never attempted to unclog the cyclone unit.
A fork-lift raised Williams onto the back of a semi-trailer from which he had to climb to reach the top of the building. The cyclone unit had two access points, a small hatch and a larger hatch. Once on the roof, Williams removed the lid from the smaller hatch to the cyclone unit and, using the pipe, unsuccessfully attempted to force the paper down the chute. Thereafter, Williams opened the larger hatch and, standing on a piece of angle iron next to the hatch, attempted to force paper downward into the chute with the pipe. His foot slipped off the angle iron, and he fell through the feed chute into the baler. When he reached the bottom of the chute, the baler automatically activated and crushed his legs.
Williams filed suit against Price, alleging willful, negligent, and/or wanton conduct in allowing safety devices to be removed from the baling machine and for willfully allowing the baler to be operated without such safety devices. The substance of Williams's complaint charges Price with willful conduct with the intent to injure, under Ala.Code 1975, § 25-5-11; in essence, that Price acted willfully in issuing instructions not to shut down the operation of the baler while Williams attempted to unclog paper from the cyclone unit.
Alabama Code 1975, § 25-5-11, as amended, limits actions for personal injuries that an employee who is receiving benefits under the Alabama Workmen's Compensation Act can recover against an "officer, director, agent, servant, or employee of the same employer" to actions for "willful conduct" that results in, or proximately causes, injury or death. Therefore, we must determine whether there is any evidence tending to show that Williams was injured as a result of Price's "willful conduct," as that term is defined in § 25-5-11(c)(1) and (2). If there is, then the summary judgment should not have been entered.
In Reed v. Brunson, 527 So. 2d 102 (Ala. 1988), this Court set out what constitutes "willful conduct":
527 So. 2d at 119-20.
The evidence in this case, when considered in a light most favorable to Williams, tends to show that Price had told Johnson not to turn off the baler while someone attempted to unclog paper from the cyclone unit, even after Price had been told by Johnson of the possible danger that could occur. Although this evidence tends to show that Price was negligent, and perhaps even wanton, in his conduct towards Williams, it fails to show that Price set out purposefully, intentionally, or by design to injure anyone. In other words, there is no evidence tending to show the existence of a state of mind on Price's part above and beyond that required to establish negligence or wantonness. See Reed v. Brunson, supra; see, also, Lynn Strickland Sales & Service, Inc. v. Aero-Lane Fabricators, Inc., 510 So. 2d 142 (Ala.1987).
Whereas we recognize that intent is a matter peculiarly within the province of the *411 jury and may be shown by any condition or circumstance from which it may be reasonably inferred, see Walker v. Woodall, 288 Ala. 510, 262 So. 2d 756 (1972), we do not think that "willful conduct," as defined in the statute, would be reasonably inferable from evidence like that introduced in this case. See Reed v. Brunson, supra. Short of substantial certainty that injury or death would occur, a purpose, intent, or design to injure another was not intended to be reasonably inferable from evidence showing only knowledge and appreciation of a risk of injury or death.
A careful reading of the Workmen's Compensation Act reveals that the Act was promulgated to ensure that cases where a plaintiff was compelled to work under circumstances that posed foreseeable risks of harm to himself or others or circumstances from which harm could likely or even probably result would not be submitted to a jury without some evidence tending to show either 1) the reason why the co-employee defendant would want to intentionally injure the plaintiff, or 2) that a reasonable man in the position of the defendant would have known that a particular result (i.e., injury or death) was substantially certain to follow from his action.
There is no evidence in this case tending to show that Price had a reason to injure Williams or anyone else, nor is there any evidence to show that Williams's injury was substantially certain to follow from the actions of Price. Therefore, Williams failed to make out a prima facie case of "willfulness" as that term is defined in § 25-5-11(c)(1), and the trial court properly entered summary judgment as to § 25-5-11(c)(1).
We note Williams's argument that Price's instruction to Johnson not to use the available safety devices to disengage the baler, along with the written instructions on the baling machine not to cut off the machine without permission, rendered unavailable the safety devices that cut the power to the baling machine and therefore "removed those safety devices in violation of § 25-5-11(c)(2)." Williams attempts to equate these instructions with the willful and intentional removal of, or failure to install, a safety guard found in Bailey v. Hogg, 547 So. 2d 498, 500 (Ala.1989), in which the Court held:
Williams argues that § 25-5-11(c)(2) does not require a showing of intent to injure as is required under § 25-5-11(c)(1). Rather, Williams argues that liability under § 25-5-11(c)(2) may be established merely by presenting evidence of a willful and intentional removal of, or failure to install, a safety guard and that Price's actions in the instant case were tantamount to the willful and intentional removal of a safety device under § 25-5-11(c)(2).
In Bailey v. Hogg, supra, as in Reed v. Brunson, supra, we were dealing with safety guards or safety devices provided by the manufacturers of the machines. In the instant case, we are dealing with a co-employee's instructions concerning a safety procedure. Section 25-5-11(c)(2) specifically defines willful conduct in terms of "[t]he willful and intentional removal from a machine of a safety guard." Although we extended § 25-5-11(c)(2) in Bailey v. Hogg to equate the term "removal" with "failure to install," finding the same dangers present in both situations, we cannot and will not extend § 25-5-11(c)(2) to include instructions, whether given or not given, pertaining to safety procedures. Rather, the instruction not to deactivate the baler while someone was attempting to unclog it would constitute willful conduct only if it constituted such conduct under § 25-5-11(c)(1), as interpreted by Reed v. Brunson, supra. Thus, having found no evidence of an intent to injure on the part of Price under § 25-5-11(c)(1), we must affirm the summary judgment as to § 25-5-11(c)(2).
AFFIRMED.
MADDOX, ALMON, SHORES and STEAGALL, JJ., concur.
JONES, ADAMS and KENNEDY, JJ., dissent.
*412 KENNEDY, Justice, dissenting.
I respectfully dissent.
In this case, one could conclude that Price had instructed Johnson to leave the baler running while the cyclone and paper feed chute were being unclogged. These instructions were given even though Price had been informed by others who were trained in the operation of the baler that the correct procedure for unclogging the cyclone included deactivating the baler and opening a side access door; Johnson himself had informed Price of the danger of leaving the baling machine running while employees were on the roof unclogging the cyclone.
In Reed v. Brunson, 527 So. 2d 102, 120 (Ala.1988), this Court stated that in order for the case to be submitted to the jury, pursuant to § 25-5-11, either of the following must be shown: (1) "the reason why the co-employee defendant would want to intentionally injure the plaintiff," or (2) that a reasonable man in the position of the defendant would have known that injury to another was substantially certain to follow from his actions.
The plaintiff has met the second alternative requirement of Reed, and summary judgment was, therefore, improper.
JONES, J., concurs.
[1] The paper waste removal system consisted of a floor sweeper, a shredder, a cyclone, and a baler. The floor sweeper vacuumed paper from the floor up through a chute to the roof, where the paper was shredded and then passed through a cyclone, which removed the paper from the air and allowed the paper to fall through a chute from the roof directly into the baling machine. The baler then compacted the paper into bales for disposal. | April 20, 1990 |
a219abbb-7f33-46cb-8ac8-c87c66fe042c | Ex Parte Barger | 562 So. 2d 656 | N/A | Alabama | Alabama Supreme Court | 562 So. 2d 656 (1990)
Ex parte David Wayne BARGER.
(Re David W. Barger v. State).
89-888.
Supreme Court of Alabama.
April 20, 1990.
*657 Ricky J. McKinney, Tuscaloosa, for petitioner.
Don Siegelman, Atty. Gen., for respondent.
Prior report: Ala.Cr.App., 562 So. 2d 650.
PER CURIAM.
The petition for writ of certiorari is denied.
In denying the petition for writ of certiorari, this Court does not wish to be understood as approving all the language, reasons, or statements of law in the Court of Criminal Appeals' opinion. Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973).
WRIT DENIED.
HORNSBY, C.J., and MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur. | April 20, 1990 |
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